text:
    Angelo Greco v. Leopold Bernheimer.
    (Supreme Court, Appellate Term, Hirst Department,
    July 27, 1896.)
    Negligence—Allowing water to flow in building.
    The fact that an overflow of water occurs on the floor occupied by defendant is sufficient to charge with liability or injury to tenants on floors below, in the absence of any explanation negativing want of care on his part.
    Appeal from Second district court.
    Action by Angelo Greco against Leopold Bernheimer. There was a judgment in favor of plaintiff, and defendant appeals,
    Rose & Putzel, for app’lt; J. J. Green, for resp’t.
   McADAM, J.

action is to recover damages to the goods of the plaintiff in Ms grocery store at Mo. 178 Mulberry street, extending through to Mo. 385 Broome street, this city, by an overflow of water which is alleged to have come from the third loft of Mo. 385 Broome street, occupied by the defendant for manufacturing and business purposes. It appears that on January 6, 1896, at about midnight, the plaintiff was awakened by the sound of running water; that he arose from Ms bed and saw water running through the ceiling of his store; that he immeliately summoned two policemen; and that the officers were engaged fram about twelve to four o’clock in the morning in trying to stop the flow of water, and they finally succeeded in jamming the supply pipe on the floor immediately above the plaintiff’s store. Upon the trial it was conceded that the plumbing in the defendant’s establishment was in good order. So that the damage resulting to the plaintiff could have come only from neglect in leaving the water turned on. The defendant testified that there was a tank on the roof, into which water was pumped which supplied his loft;, that his method of procuring water was by pressing a spring, faucet, which was in perfect order; and that he had no water for some days preceding the overflow. The plumber called by the defendant testified to more: lie proved there was an extra pipe, ■—a supply pipe,—which ran from the cellar into the defendant's loft, so that when the defendant could not get water from tho tank he got it from this supply pipe, about which the defendant was significantly silent while upon the witness stand. It was established at the trial, beyond doubt, that the water came from the third loft, occupied exclusively by the defendant; that the loft above was perfectly dry, without the slightest sign of an overflow, while the floor of the defendant’s loft, particularly around the sink, was quite wet, and bore every evidence that the source of the trouble was there. From the defendant’s loft the water left traces leading to the floors below, and thence directly into the plaintiff’s store, where the damage was done.

As the defendant was in the exclusive possession of the third loft, from which the water came, the overflow was sufficient, prima facie, to fix liability against him, in the absence of some-explanation negativing want of care upon his part. Moore v. Goedel, 34 N. Y., at page 532. - Of course, there musit be some-reasonable evidence of negligence; “'but where,” as the court said in Mullen v. St. John, 57 N. Y., at page 571, “the thing is shown to be under the management of the defendant or his servants, and the accident is such as, in the ordinary course of' things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of’ care.” See, also, Lyons v. Rosenthal, 11 Hun, 46; Breen v. Railroad Co., 109 N. Y., at page 300; 14 St. Rep. 835; Volkmar v. Railroad Co., 149 N. Y. 23. There is evidence that- about the-time of the overflow the weather’ was exceedingly cold, and that two workmen, with their coats off, apparently employes of the-defendant, said the day before the occurrence, while near the water faucet on his floor, that they intended to let the water run,, so that it would not freeze in the pipes; and all the circumstances connected with the overflow confirm this theory, and point to the-fact that the water was left running for the purpose mentioned.. The defendant denied that these persons were in his employ, but,, as he was interested in the result, the justice was not bound to believe his testimony. The defendant offered no explanation off the overflow. On the contrary, he strenuously insisted that it did not come from his loft, and that there was no water on his floor indicating an overflow from the faucet or waterworks under his charge. He testified that, while his floor was perfectly dry,, he saw indications that the water came from the floor above. This was so much at variance with the controlling proofs and circuimstanees that the justice evidently discredited his testimony, and gave credence to the more probable theory that the defendant’s workmen had allowed the water to run to prevent freezing. If tibe water had come from the floor above the defendant’s as he asserted, it would have left its impress ou the floors of his loft, as it did on the lofts below his, and yet he testified his loft was perfectly dry. The water did not come from the tank on the roof, or from anything above the defendant’s loft, but from the extra supply pipe running from the cellar into the defendant’s roams, for when this pipe was jammed by the policemen the flood ceased. While the defendant testified considerably about this tank on the roof, and his means of getting water from it, the real canse of the trouble was the extra supply pipe from the cellar, about which he gave no information whatever. To hold that the water did not come from the defendant’s loft would, in effect, he to find that there had been no overflow at all; for it was impossible to read the return of the justice, and attribute the overflow to any source other than the defendant’s faucet, which, was left open the afternoon of the day when the damage was done. The power of the running water was probably not felt at the time, hut the closing of factories for the day, and the cessation of use by others, caused the water at midnight to rise ‘and do the damage complained of. In Simonton v. Loring, 68 Me. 164, the servant of the occupants of an upper tenement accidentally left open a faucet, thereby causing the water to overflow and flood the tenement below, and it was held that the occupants of the upper tenement were liable for the damage done. In Killion v. Power, 51 Pa. St. 429, it appeared that the upper story of a building had water introduced into it with a vent by a spigot which was entirely under the control of the occupant of that story; that one Hughes, a customer of the defendant, came to the latter’s premises to get some barrels, got some whiskey in a tumbler out of one of the barrels, and went overhead, and was there heard at the stopcock by one of the defendant’s employes, and was told that there was no water there', the water at that moment being turned off in the street, while making repairs. ■ Hughes evidently turned the cock, and, finding no water, left it so. The court said:

“There is ample evidence here that Hughes was not a mere trespasser. If Hughes came there by permission, and was permitted to use the water, certainly it was negligence, under the facts of this case, not to see to the condition of the cock before the store was closed for the day. The stopcock was in the third story, occupied exclusively by the defendant, and where the plaintiff had no right to go. When the defendant or his servants left the store, filled as it was with valuable goods, of course it must he locked up. A duty lay upon him to take care that so dangerous a thing as this stopcock was under the circumstances should not be left open, to flood the store of his neighbor below stairs. The maxim, ‘Sic utere tuo ut alienum non. laedas/ has here its most apposite application. It would he such negligence ,-as entitled the plaintiff to recover.”

A verdict in that case in favor of the plaintiff was affirmed. Applying settled principles to the present contention, we think it was the duty of the defendant, when he closed his place of business for the night, to use some means to see that the faucet of the extra supply pipe, as well as the on© on the pipe coming from the tank on the roof, was not left open to flood the floors of the occupants below. If the defendant had admitted the overflow, he might, perhaps, have excused himself ;by showing that, while -he and his servants exercised every reasonable care in regard to the water pipes and faucets, the persons who turned on the water must have been trespassers upon his premises, who, in his absence, and without neglect upon his part, did the mischief complained of. Spencer v. McManus, 82 Hun, 318; 63 St. Rep. 500. But -that was not his line of defense. He persisted throughout that the overflow did not come from his loft; hence it could not have been caused by any one for whose presence on his premises he was hound to account, or for whose acts he should answer. The evidence sufficiently warranted the justice in finding for the plaintiff, and in -assessing the damages for injury to the plaintiff’s property at $177.25, the sum awarded.

The judgment must be awarded, with costs.

All concur. .


source: Caselaw Access Project

author: BISCHOFF, J.

license: Public Domain

text:
    Morris Weinstein et al. v. John N. Golding.
    (Supreme Court, Appellate Term, First Department,
    July 28, 1896.)
    Real-estate agent—Procuring cause or sale.
    Defendant, a real estate agent, after an unsuccessful attempt to selL-real estate, employed plaintiff, another real estate agent, to make the sale. Plaintiff, on hearing that the owner would take a less price than defendant had offered the property for, offered it to the proposed purchasers at such price, and they accepted. Plaintiff then communicated the acceptance to defendant, and the sale was completed. -No negotiations occurred between defendant and the purchasers from the time they refused defendant’s offer until they accepted plaintiff’s offer. Held, that plaintiff was the procuring cause of the sale.
    Appeal from Fourth district court.
    Action by Morris Weinstein and others against John M. Golding on an alleged agreement by defendant to pay plaintiff’s one-half of the commissions if they would secure a purchaser for certain: real property which the owner bad placed with defendant as broker for sale. Judgment was rendered in favor of defendant, and plaintiffs appeal. Reversed.
    Miller & Miller, for app’lts; John Lindley, for resp’t.
   BISCHOFF, J.

The action was to recover upon the defendant’s agreement with the plaintiffs, as co-partners, to pay them one-half the commissions which he expected to realize if they would secure a purchaser for certain real property which the owner, Talbot, had placed with the defendant for sale as a broker. It Avas conceded upon the trial that the plaintiffs Avere employed for the purpose above stated, one Oollins having in that behalf acted as the agent of the defendant; that the defendant’s promise was to pay the plaintiffs one-half of the commissions to be realized in the event of a sale; that the property was sold to Menclelbaum & Levine for $29,000; and that the defendant was paid $290 for commissions. The controversy was whether the plaintiffs’ efforts or the defendant’s efforts were the efficient or producing cause of the sale, in view of the fact that the defendant was the first to bring the property to the notice of the purchasers. In determining that controversy adversely to the plaintiffs, the trial court was clearly in error. The evidence for both sides was substantially in accord that the agreement Avith the plaintiffs was made either in December, 1894, or January, 1895; that the defendant had theretofore offered the property to Mandelbaum & Levine at a price from one to tiwo thousand dollars in excess of the one actually accepted by the owner; that Mandelbaum & Levine had at the time declined to purchase the property, and that from thenceforth, and until the defendant’s representative, Oollins, was informed by Morris Weinstein, one of the plaintiffs, that Mandelbaum & Levine had consented to purchase the property for $29,000, no further negotiations had occurred between the defendant, or Oollins, and the purchasers. The defendant conceded that he did not in person conduct any such negotiations, and that whatever was done in that regard was done by Oollins, as his representative. Oollins’ testimony did not contain even an allusion to anything claimed to have been done by him to promote the sale of the property during the time above stated, except that about August 25 or 26,1895, he chanced to meet Weinstein, when he informed the latter that the owner would probably accept $29,000. Mandelbaum, with whom the former negotiations were had, stated that they had been dropped. It was, furthermore, unchallenged that on or about August 26, 1895, after he was informed by Oollins that the property could be purchased for $29,000, Weinstein called upon Mandelbaum & Levine, and offered them the property at the price last stated, which they decided to pay; that he thereupon communicated the fact of Mandelbaum & LeAdne’s acquiescence in the price asked to Oollins, who, accompanied by Weinstein, at once proceeded to Mandelbaum & Levine’s office, and there effected the sale. Upon the facts narrated above the conclusion is irresistible that any prior negotiations Avith Mandelbaum & Levine on the part of the defendant, or his representative, Oollins, had come to an end; that the hope of the defendant, or his representative, Collins, to effect a sale to Mandelbaum & Levine, or of the latter to conclude a purchase, was abandoned; that the sale subsequently made was the issue solely of Weinstein’s efforts. 1'hat being so, the plaintiffs are not to he precluded of their just claim to compensation.

The question here to be determined is precisely the same as if the plaintiffs and the defendant were severally claiming the commissions from the owner. It would-not, in such a case, avail the defendant that it was he who first introduced the matter of the proposed sale to the purchasers, the test of the right to the commissions of the person claiming them being that the negotiations initiated by him were carried to a successful conclusion. Wylie v. Bank, 61 N. Y. 415; Sibbald v. Iron Co., 83 id. 378; Briggs v. Rowe, 1 Abb. Dec. 189. Obviously, upon the facts before us, the defendant’s right to the commissions as against the owner is predicable only of the plaintiffs’ services which inured to his benefit by vortue of his agreement with them to divide the commissions. ¡

No importance is attached by us to Collins’ testimony that, after he was informed by Weinstein that the latter had secured a purchaser at the price acceptable to the owner, he stated to him that the defendant would not abide by his agreement to divide the commissions should the purchaser prove to he the person to whom he (Collins) or the defendant had previously offered the property for sale. The plaintiffs’ services had at that time been substantially performed. They had secured persons able and willing to purchase upon the terms prescribed by the owner, or the defendant, and their claim to the agreed compensation could not be defeated by the refusal to accept such persons as purchasers. Noncompliance on the part of the plaintiffs with a condition precedent to their right of recovery would not have availed the defendant upon proof that compliance was prevented by his act. Sibbald v. Iron Co., supra.

The judgment should he reversed, and a new trial ordered, with costs to the appellants to abide the event.

All concur.


text:
    Morris Pollatschek et al. v. Matilda Goodwin.
    (Supreme Court, Appellate Term, First Department,
    July 28, 1896.)
    1. Appeal—Record—Opruroisr ov court below.
    Au affirmance by the general term oí the New York city court will not be reversed by the appellate term on the ground that the recitals in the opinion of the citv court showed that the affirmance proceeded on a supposed want of authority to reverse the facts, unless the opinion, by reference or otherwise, is embodied in the judgment or affirmance., or unless such supposed want of authority is recited in the judgment, as the opinion of the court below is not properly a part of the record on appeal. J

      ■"3. Same—Error cured.
    Error in denying a motion to dismiss the complaint on the ground that it was not sustained by the evidence is cured by the subsequent introduction of sufficient evidence.
    3. Same—Erom general term to city court—Weight of evidence. ’
    On appeal from the general term of the New York city court,.the appellate term cannot consider the weig-ht of evidence.
    4. Factors and brokers—Employment by both patiies.
    It is not improper for a broker employed to sell to act as agent of the purchaser also, unless his employment by the vendor gave him discretionary authority.
    5. Same—Good faith towards principal.
    A broker is not required, in support of his cause -of action against his principal for services .rendered, to establish affirmatively his .good faith towards the principal.
    Appeal from the city court of Few York, general term.
    Action by Morris Pollatschek and Jacob Pollatschek against Matilda E. Goodwin to recover broker’s commissions for the sale ■or exchange of defendant’s real estate. The answer denied the -employment, as well as that any sale or exchange was effected through the instrumentality of plaintiffs. From a judgment of the city court (38 N. Y. Supp. 971) affirming a judgment entered on a verdict in favor of plaintiffs, defendant appeals. Affirmed.
    Theodore L. Frothingham, for app’lt; John Fennel and Charles L. Hoffman, for
   BISCHOFF, J.

The action was to recover the agreed commissions of the plaintiffs, as co-partners, as real estate brokers, for having effected the sale or exchange of the defendant’s property at her instance and request; and the answer denied the employment, as well as the performance of such services by the plaintiffs. The trial resulted in a verdict for the plaintiffs, the judgment whereon was affirmed in the court below, and the case is now before us on appeal from such judgment of affirmance.

It is contended for the defendant that the affirmance below proceeded upon a supposed want of authority in the court to reverse upon the facts, and allusion is made in that beha-lf to- the opinion which accompanied the order and judgment of affirmance. We -not so construe the language of the court below, and it suffices to sav that without the embodiment of the opinion in such order or jud-rment of affirmance, at least hv intrinsic reference, or the re-■cit-al of such proposed want of authority in such order or judgment, we are without warrant to accede to- the defendant’s contention. Salmon v. Gedney, 75 N. Y. 479, 481: Tolman v. Railroad Co., 92 id. 353, 356. Error, to he available unen anneal, ¡must appe-ar from the record (Baylies, New Trials, 173, and cases collated); and the opinion of the court is not, as such, properly apart of the record (Salmon,v. Gedney, supra).

When the plaintiffs ceased the introduction of evidence in support of their cause of action, the defendant moved the dismissal of the complaint, upon the ground that it was not sustained. The motion was denied, and an exception taken; but the error, assuming the ruling to have been such, was curable by evidence thereafter introduced by either party. Meyers v. Cohn, 4 Misc. Rep. 185; 23 N..Y. Supp. 996. Both sides having exhausted their evidence, the defendant asked that a verdict be directed in her favor.. This motion was likewise denied, and justly so, as the evidence for the plaintiffs, if credited by the jury, then .presented every constituent fact of their right to recover. We are precluded by the judgment of affirmance in the court below from inquiring into the weight of the evidence, it being onr province, upon appeal from the city court of New York, to scrutinize the record only to ascertain that there was sufficient evidence in support of the verdict and judgment rendered. Meyers v. Cohn, supra; Baylies, New Trials, 282.

It was conceded that the defendant did exchange her property, valued at $72,000, for the property of one Bernard Heller, which was conveyed to her; and the controversy was whether the plaintiffs had been employed by the defendant to effect the exchange, and whether the exchange had been brought about by the-efforts of the plaintiffs, as the inducing and efficient cause. In support of the affirmative of the first of these questions of fact, Morris Pollatschelc, one of the plaintiffs, testified that the employment was at the direct request and promise of one per centum commission upon the value of any property sold or exchanged for-the defendant, made by the latter’s son Henry L. Goodwin, with whom, it appears, as the representative of his mother, all the ensuing negotiations were had; and Henry L. Goodwin’s authority to-conclude the defendant by such employment and promise was inf eren tially apparent from the witness’ further testimony that, after the exchange was made and concluded, he was referred by the defendant to Henry L. Goodwin for the payment of the commissions. It is therefore unnecessary to discuss whether or not there was evidence of the defendants ratification of her son’s-acts.

That the efforts of the plaintiffs, acting through Morris Pollatsehek, were the efficient á.nd inducing cause of the exchange, was substantiated bv the testimony of Morris Pollatschek, Edward W. Larner (who was claimed by the defendant to have effected the exchange), and Bernard Heller, with whom the exchange was made tire several statements of these witnesses being in aeenrrl that he (Heller) was introduced to the defendant’s representative, Hcnry L. Goodwin, by Morris Pollatschek. as desirous of exchanging his property for property of the defendant,. and that all the negotiations which resulted and culminated in the exchange were conducted by the parties thereto through Morrig Pollatschek and others employed by him alone. True, it appeared that the property which the defendant’s representative, Henry L. Goodwin, at first proposed to give in exchange for Heller s property, was not that actually given, hut was property which the def endant held as executrix under the will of Matilda Ooddington. In either ease, however, the plaintiffs’ employment was the defendant’s individual contract. Douglas v. Leonard (Com. Pl.), 17 N. Y. Supp. 591, and 18 id. 144, and cases collated. And it further appeared from Morris Pollatsehek’s testimony that the exchange as at first proposed failed of accomplishment through the defendant’s inability to execute it upon her part; that the negotiations continued uninteruptedly; and that the property actually given by the defendant in exchange, and upon which the plaintiffs claimed commissions, was substituted by consent of all the persons interested, as owners and otherwise. The testimony for the defense that, just before the contract of exchange was entered into, it was agreed that the plaintiffs should have no commissions upon the property given by the defendant, was negatived by the testimony of Morris Pollatschek that the conversation narrated by the defendant’s witness did not occur. The motions to dismiss the complaint, and for the direction of a verdict for the defendant, were made upon the further ground that it appeared “that the plaintiffs were brokers for Mr. Heller, the seller of the Bleeker street property, and plaintiffs have-not shown that they were employed by the defendant with a knowledge of their brokership for Mr. Heller, assented to by the defendant.”

Waiving the answer that it abundantly appeared from the testimony of the plaintiffs’ witnesses that the defendant’s representative, Henry L. Goodwin, knew, before the contract of exchange was made that the plaintiffs were -also Heller’s brokers in the matter of exchange, and were, to receive commissions from the latter, it does not follow that either of the exceptions which were taken to the denial of the several motions presents error. It is-not per se unlawful for one to act as the broker for the buyer and seller without disclosing the fact. The broker may he a mere middleman. It is only when his employment is that of an agent with discretionary authority from his principal in the matter of such employment that he cannot accept employment from another whose interests conflict with those of the first principal. Knauss v. Brewing Co., 142 N. Y 70; 58 St. Rep. 316; Empire State Ins. Co. v. American Cent. Ins., Co., 138 N. Y. 446; 53 St. Rep. 12: Haviland v. Price (Com. Pl.), 26 N. Y. Supp. 757; Bonwell v. Auld, 9 Misc. Rep. 65; 59 St. Rep. 79. Assuming, however, that the ground for the several motions was'predicated of the plaintiffs’ alleged, discretionary authority, from both or either of „the parties to the exchange, the ruling was proper, because it appeared affirmatively from the evidence that the plaintiffs acted as mere middlemen, without discretion from either party to the exchange, in the making of any of the terms thereof, or to conclude either of them in any other respect; and that the terms of the exchange were fixed and arranged, without reliance upon the plaintiffs, by Bernard Heller, acting for himself, and Henry X. Goodwin, acting for his mother, the defendant.

Upon the cross-examination of Morris Pollatschek, a witness for the plaintiffs, the defendant’s counsel, intending to show bad faith upon the plaintiff’s part towards the defendant in causing the rents of the property accepted by her in exchange to be misrepresented, asked the following question, “Do yon remember Raving told Miller hew he must represent, if any person came to the house, as to their being full of tenants?” which was excluded. The exception to this ruling -also fails to show error. Unquestionably, the broker forfeits his commissions if he has been guilty of bad faith towards his principal. 2 Am. & Eng. Ene. Law, 582, and cases cited in note 1. The plaintiffs, however, were not required, in support of their cause of action, affirmatively to establish their good faith. Lawson, Pres. Ev. 931. If the facts, therefore, which the defendant’s counsel sought to elicit, were relevant to the issues made by the pleadings, they were properly matter of defense. They were not touch'd upon in the witness’ direct examination, and it was within the discretion of the trial court to reqhire the- defendant to withhold the introduction of her evidence until the plaintiffs had exhausted theirs. Abb. Tr. Brief. 46, etc., and cases collated. Again, the evidence was subsequently introduced by the defendant, and met by the plaintiffs.

We find no exception in the record which calls for reversal, and the judgments of the general and trial terms of the court below should therefore he affirmed, with costs.

All concur.


author: McADAM, J.

text:
    Lizzie Lawrence v. Levi Samuels.
    (Supreme Court, Appellate Term, First Department,
    July 27, 1896.)
    Damages—Physical examination of female plaintiff.
    Under Code Civil Procedure, section 873, providing that, if a female plaintiff be subjected to a physical examination, she shall be entitled to have such examination made by a female physician, she need not make any special application to be examined by a female physician, and an order which provides otherwise is erroneous.
    Appeal from city court qf New York, general term.
    Action by Lizzie Lawrence against Levi Samuels for personal. injuries. From a judgment of the city court (38 N. Y. Supp. 976) affirming an order denying a motion to vacate an order for the physical and oral examination of plaintiff, plaintiff appeals.
    Fromme Bros., for app’lt; Nadal, Smyth, Carrere & Trafford, for resp’t,
   McADAM, J.

action was to recover damages for personal injuries, of a permanent character, alleged to have been sustained July 9, 1895, by falling down the rear stairway of a tenement house owned by the defendant, charged to have been kept by him in an unsafe and dangerous condition. Upon an affidavit made by the defendant showing the facts required to be stated by sections 872 and 873 of the Code, he obtained an order for the examination of the plaintiff as a witness before trial, and directing that she submit to a physical examination by a physician designated therein. The plaintiff thereafter obtained 'an order to show cause why the order for such examinations should not be vacated. The application was, after argument, denied, and the order for the examinations sustained.

The affidavit upon which the defendant’s order was granted appears to contain all the facts necessary to be stated to entitle him to the relief claimed. Lyon v. Railway Co., 142 N. Y. 298; 58 St. Rep. 860. If any technical defects exist, they ought to have been specially called to our attention by the appellant, and not left for us to seek. The criticisms made by the appellant against the affidavit, in her points, are general, and appear to be without merit. In the order to show cause why the order for examination should not be vacated, no irregularities are specified, nor are any defects pointed out. It simply asks that the order for examination be “set aside upon the ground that the same was inadvertently granted, and the papers upon which the same was based are insufficient to justify the granting thereof.” The justice who granted the defendant’s order heard the application to vacate it, and decided that it had not been inadvertently granted, but issued upon papers complying with all the statutory requirements; and the general term of the city court, in sustaining the order, concurred in'this view. The only objection specially urged is that the defendant’s order requires the plaintiff to submit to a physical examination by a male physician. The statute provides that, ■“if the party to be examined shall be a female, she shall be entitled to have such examination before physicians or surgeons of her own sex.” Code, § 872. The court below did not think the order made was a substantial departure from the statute, because the record did not show that the plaintiff had made any effort to have it modified so as to provide for such .'an examination. In Railway Co. v. Botsford, 141 U. S. 250; 11 Sup. Ct. .1001, the court, nér Gray, J., said:

“The inviolability of the person is as much invaded by a compulsory stripping and exposure as by a Mow. To compel any one, and especially a woman, to lay bare the body, or to submit it to the touch of a stranger, without lawful authority, in an indignity, an assault, and a trespass.”

These words forcibly express the sentiment which induced the passage of the Code provision entitling females to have physical examinations before physicians or surgeons of their o-wn sex. W& think the act is for the protection of female suitors, and that the plaintiff was right, as of right, to have inserted in the order the provision that a female physician make the examination, without making any specail application for it as a favor or privilege.

It follows that, in so far as the order appealed from names a male physician, it must be reversed, with liberty to the defend1-1 ant to apply to the court below for the naming of such a physician as the Code authorizes. In other respects the order will be affirmed, without costs to either party in this court or in the court below.

All concur.


text:
    George R. Wood v. Irving Furtick (two cases).
    (Supreme Court, Appellate Term, First Department,
    July 28, 1896.)
    1. Attachment—Debt due erom eoreiqn corporation.
    A debt from a foreign corporation to a nonresident, payable without the state, cannot be attached in New York, though the foreign; corporation is engaged in business in New York, and has agents therein.
    2. General appearance—Motion to vacate attachment.
    Under Code Civil Procedure, section 421, providing that defendant’s appearance must be made by serving a notice of appearance or a copy of a demurrer or answers, service of motion to vacate am' attachment is not a general appearance.
    Appeal from city court of New York, general term.
    Action by George R. Wood against Irving Furtick to recover $681.25 with interest, for goods sold and delevered. From an order vacating a levy admitted to be made under an attachment issued against the property of defendant, a nonresident, certain demands in bis favor existing against foreign corporations, plaintiff! appeals. From another order of the city court (39 N. Y. Supp. 173) affirming an order denying a motion to vacate a judgment for plaintiff entered for default in pleading after defendant’s alleged general .appearance, defendant appeals
    Wm. P. S. Melvin, for pl’ff; Lawrence Godkin, for def’t.
   BISCHOFF, J.

plaintiff, a resident of the city of New York, sued the defendant, a resident of South Carolina, upon two assigned claims for merchandise sold and delivered in Maryland. The summons was served upon the defendant personally, without the state, pursuant to an order for such service; and by means of an attachment which was issued against the property of the defendant, and served upon the managing agent, respectively, of the Phoenix Assurance Company, the Imperial Insurance Company, Limited, and the Royal Insurance Company, the plaintiff sought to reach the debts owing from such companies to the defendant in virtue of their several policies of insurance against loss by fire issued to him for property at his place of residence. Each of such insurance companies was a foreign corporation, having been organized under the laws of Great Britain, and having its principal office for the United States in the city of New York. The policies were severally issued in South Carolina, and the property insured was destroyed by fire before the commencement of this action. Before, that time, the defendant also had assigned all his property, including the claims under the insurance policies, to Allen J. Green, of South Carolina, for the benefit of his creditors, by an instrument in writing, dated and delivered on the same day. Upon the motion of the defendant and his assignee, the levy of the attachment upon the debts due from the insurance companies was vacated, and an order to that effect entered, which was affirmed at general term below. The notice of motion to set the service of the attachment aside, or to vacate the levy attempted to be made thereunder, was not served until upward of five months after the attachment was issued. It was subscribed by the attorney, and the latter’s office and post-office address added, but it did not expressly qualify the defendant’s appearance in the action. Assuming the notice of motion to be a general appearance, the plaintiff’s attorneys, after lapse of the time for service of the defendant’s pleading, entered judgment against the defendant for default in pleading. Thereafter the defendant moved to vacate the judgment, upon the grounds that it was irregularly entered, and there was no general appearance for the defendant in the action, and that, if the notice of motion to set the service of the attachment aside could be construed to be a general appearance, it was unauthorized, and not so intended. The motion to vacate the judgment was denied, and the order •entered upon the denial'was likewise affirmed, upon appeal in the ■court below.

Waiving the effect of the defendant’s assignment for the benefit of his creditors, and treating him to all intents and purposes as the owner of the several demands attempted to be attached as the plaintiff’s counsel insists he should be, the service of the attachment, and the attempted levy thereunder, appear, notwithstanding, to have been rightfully vacated. The attachment proceeding was dependent for its validity upon the presence of the res—the debt—within the jurisdiction of 'the court, which was not here the ease. The question involved was fully discussed ■by the court of appeals in Douglas v. Insurance Co., 138 N. Y. 209; 52 St. Rep. 164, where it was explicitly ruled that the situs of a debt is at the place of residence of the creditor; that the residence of a corporation is within the domain of the sovereignty which created- it; that where neither the debtor whose property is sought to be attached, nor his debtor, is a resident of the state or country in which the attachment proceeding was brought, the court is without jurisdiction to make any adjudication involving ■ the payment of the debt due from the last-mentioned nonresident to the first-mentioned one; and that no state or country can ■ clothe its courts with such jurisdiction by enacting that service ‘ of process may fox such purposes be made upon an agent ox* repre-' sentative of the nonresident debtor of a nonresident whose property is sought to be applied in satisfaction of a resident creditor’s : demand against him. It was held in that case that the attempted ! attachment in Massachusetts of a debt owing from a Mew York • corporation to a resident of Mew York, service having been made-, upon the duly-appointed agent of the corporation of .Massaehu- 1 setts, was not a valid defense to an action in the courts of Mew < York against the corporation by its creditor. We are referred f by counsel for the plaintiff to a number of cases in other jurisdic- j. tions which are claimed to he at variance with the ruling above - alluded to as to service of process upon an agent or attorney of a. f foreign corporation; hut, obviously, the Douglas Case would be-1 conclusive upon us even if the opinion were less persuasive. ¡

We are of opinion that the service of the defendant’s notice of motion to vacate the service of the attachment, and the attempted ' levy thereunder, did not constitute a general appearance in the-, action. We are referred by the counsel for the plaintiff to a num- : her of cases, neither of controlling -authority, which are to the ef-. feet that service of a notice of motion which does not expressly qualify the party’s appearance is equivalent to a general appearance in the action. The cases alluded to, however, are such asuróse before the present Code of Civil Procedure, and such as-followed them without notice of the effect wrought by the Code. It is now provided that, if the defendant wishes to appear in the action, he must serve either an express notice of his appearance or a demurrer or answer. Code Civ. Proc. § 421. The better opinion seems to be that a general appearance cannot now he effected in any other way. Couch v. Mulhane, 63 How. Prac. 79; Benedict v. Arnoux (Sup.), 38 N. Y. Supp. 882; “Expressio unius est exclusi-o alteráis,” Broom’s Leg. Max. (8th Am. Ed.) 650; Suth. St. Const. §§ 326, 327. It is certain that the application of the maxim will solve a rule which will avoid surprise to either party to the action, and he consistent with the probable intention of the legislature in the enactment of the Code provision alluded to. Reed v. Chilson, 142 N. Y. 152; 58 St. Rep. 623, and Farmer v. Life Ass’n, 138 N. Y. 265; 52 St. Rep. 346,, are not contrary to tlie views above expressed. In the Reed Case there was a general appearance by the defendant, and in the court’s allusion to special or qualified appearances there is no intimation that since the Code of Civil Procedure a notice of motion is more than a special or qualified appearance. In the FannerCase the decision was not predicated of the fact of a general appearance by the defendant, but it was ruled that the defendant, was estopped from denying that it had generally appeared and submitted to the jurisdiction of the court, because it had applied for and availed itself of relief to which it was entitled only aftear a general appearance in the action.'

The oider vacating the service of the attachment and the levy thereunder, and the order affirming such order, are affirmed, with, costs. The order denying the motion to vacate the judgment,, and the order affirming such order, are reversed, with costs; and the judgment is vacated, with costs.

All concur.


author: BISCHOFF,

text:
    George Herold v. John Fleming.
    (Supreme Court, Appellate Term, First Department,
    July 28, 1896.)
    Evidence—Parol To show terms op contract partly verbal.
    Defendant, who owed plaintiff $275, gave him $75 in money, and the note of a third person for $200, payable to defendant, and indorsed by him without recourse, and took from plaintiff a receipt for “two hundred seventy-five ($275), being in full of all payments,’5, etc. Held, that parol evidence was admissible to show whether it was agreed by the parties that the note should be received as a. payment.
    Appeal from city court of Flew York, general term.
    Action by George Herold against John Fleming. From a judgment of the city court (38 N. Y. Supp. 1144) affirming a. judgment entered on a verdict in favor of plaintiff, defendant-appeals.
    J. Tredwell Richards, for app’lt; Emanuel J. Myers, for resp’t..
   BISCHOFF,

The burden of the defendant’s appeal iso that the trial •murt erroneously permitted the plaintiff to recover upon parol evidence which tended to vary or contradict an agreement in writing. Scrutiny of the record, however, demonstrates-that this contention is invalid. The plaintiff sued to recover the-agreed compensation of $275, less $75 concededly paid, due him for services rendered at the defendant’s request in and about the-letting of the latter’s premises. The only defense was that the balance of $200 was paid by the delivery and acceptance of the note of a third person for such amount; the note being payable to the defendant’s order, and indorsed by him “without recourse.” At the trial it appeared that at the time of the payment of the $75 above alluded to the plaintiff received from the defendant the following note, and gave him the following receipt:

“New York, January 12th, 1893.
“3 months after date, I promise to pay to the order of John Fleming $200, at 1619 Second avenue and 84th street, value received, with interest at-per cent, per annum.
“FEED DAUB.
“[Indorsed]' Without recourse. John Fleming.”
“Reed., New York, January 27, 1894, two hundred and seventy-five ($275) dollars, being in full of all demands for commission for renting premises 84th St. E. R. & 2nd Av. for the ful* term of 10 years.
“GEORGE HEROLD.”

Oral evidence was introduced,—without objection from either party,—for the defendant, tending to show that at the time of the exchange of the written instruments above mentioned it was agreed that the note itself should be received and applied by the plaintiff in extinguishment of the balance of his claim for services or commissions; and for the plaintiff, tending to show that the agreement was to the effect that he should take the note for collection only, and apply the proceeds, when collected, to the payment of his demand. This conflict was resolved by the jury in the plaintiff’s favor, and with the weight of the evidence we have no concern. Myers v. Cohn, 4 Misc. Rep. 185; 53 St. Rep. 223.

Exception was taken in the defendant’s behalf to the court’s refusal to charge “that the talcing of the note of a third person, indorsed ‘without recourse,’ constitutes a payment, ,.and that the writing must control any oral statements made at the time.” The vice of the proposed charge was that it eliminated the element of -an agreement as a constituent of the fact of payment. 18 Am. & Eng. Ene. Law, 150. Unquestionably, if the terms of the agreement are expressed in • writing, resort to parol evidence, for the purpose of showing the terms to have been other than as so expressed, cannot be had; and to that effect only are the eases cited by the defendant’s counsel. But in the case at bar no agreement to give and receive the nefte in payment was intrinsically apparent from the instruments in evidence. Hence the defendant’s resort to parol evidence to show the fact of payment by the note. Buswell v. Pioneer, 37 N. Y. 312. Obviously, but for such parol evidence the plaintiff was entitled to the direction of a verdict in his favor for the amount of his conceded demand.

An exception likewise appears to the court’s refusal to charge '“that the plaintiff, by retaining the note after its dishonor, and by failing to return the same until his trial here, adopted the note as payment of his debt, and took it as his own; that, if he intended to treat it as the property of Fleming, it was his duty to return it to him, and, whatever their relations were before that time, by retaining it after the nonpayment he adopted the note as his own.” Waiving the objection to this proposed charge that the plaintiff claimed to have the note for collection, and that he was not in default in its return until demand therefor, the request to charge also ignored the necessity of an agreement to give and apply the note in extinguishment of the demand as a constituent of payment. Possibly, the plaintiff’s retention of the note afforded some corroboration of the defendant’s contention that it was agreed to he applied in payment; but the former’s continued possession of the note, under the circumstances narrated by him, could not, without more, have the effect of payment, to wit, the application of the note in extinguishment of the debt pursuant to the agreement of the parties. The proposed charge was therefore justly refused.

Other exceptions which appear in the record are in several instances of the same tenor as those discussed. The remaining exceptions are not of sufficient gravity to merit discussion.

The judgments of the general and prior terms of the court below are affirmed, with costs.

All concuf.


author: DALY, P. J.

text:
    James G. Timolat v. S. J. Held Co. Oakland Chemical Co. v. Same.
    (Supreme Court, Appellate Term, First Department,
    July 27, 1896.)
    1. Corporations— Service of process on director after resignation.
    Under a by-law providing that a director shall serve “until such time as his successor is chosen” a director, notwithstanding’ his resignation, continues to be a director, so far as the corporation is concerned, until his successor is chosen; and therefore service on him, during such interval," of process against the corporation, is sufficient.
    S. Appeal—Discretionary order—Refusal to vacate service of summons.
    It is discretionary with the trial court to refuse to vacate service of summons on motion.
    Appeal from city court of New York, general term.
    Actions by Jamos (7. Timolat and the Oakland Chemical Companv against the S. J. Held Colnpany. From a judgment of the city court affirming orders of the special term denying defendant's motions to vacate and set aside the service of a summons and complaint on S. J. Held on the ground that at the time of the service he was not a director or an officer of defendant, defendant-appeals.
    Isaac Fromme and H. B. Wesselman, for app’lt; Walter R. Beach, for resp’ts.
   DALY, P. J.

The summons and complaint were served on. Hovember 5, 1895, upon S. J. Held, as director, secretary, and treasurer of the company; but defendant claims that he resigned those offices on October 15, 1895. The by-laws of the company provide that the hoard of directors shall be three, who shall he elected annually on July 16 th, and shall serve for one year, “and until such time as successors are chosen,” and that any vacancy in the hoard, o-r among the officers of the company, caused by death, resignation or otherwise, shall be filled by the remaining directors for the balance, of the year, and until the next annual election. It is undisputed that no successor was chosen for S. J. Held, as director, secretary, or treasurer, when his resignation was received; and he was therefore, under the by-laws, serving as such director at the time of the receipt of the summons and complaint by him, and service of the papers upon him was regular. There is no question here of the personal liability of the resigning director to the creditors of the company, but only a question between such creditors and the company, under its own by-laws, and for its own neglect to terminate its official relations with the director, by electing him successor. When, by its by-law, it declares that he shall serve until his successor is chosen, it constitutes him its poration is concerned, as if he were serving in the term for which officer until that event, with the same effect, so far as the cor-he was elected, and had not resigned. It was in the power of the company to terminate his agency at -any time by electing a successor, and, if it choose rather to continue such agency, lie must he treated, in actions against the company, as its duly-constituted officer. A by-law of a corporation has all the force of a statute, and is as binding upon the company and its members as any public law of the .state. Thomp. Corp. 939; Kent v. Mining Co., 78 N. Y. 159-179; Brick Presbyterian Church v. Mayor, etc., of New York, 5 Cow: 538. Where a public statute declared that certain town officers should hold their offices for one year, and until their successors were elected and qualified, it was held that process was regularly served upon such officers who had previously resigned, and for whom no successors had been chosen. Badger v. U. S., 93 U. S. 599. Service upon S. J. Held was therefore regular. He was a director, by virtue of the law of the company, notwithstanding his resignation, as his successor had not Been chosen, and service upon a director was service upon the corporation. Code, § 431.

The objection of respondents that the order is not appealable to the appellate term is well taken. Had judgment been entered upon such service, and a-motion made thereafter to vacate it for want of service upon the corporation, we should not have reviewed the determination of the city court upon such motion; for it is in the discretion of the court to vacate, upon motion,' a judgment regularly entered. Jackson v. Brunor, (Appellate Term, First Dept., June, 1896). It rests within the discretion of the trial court to entertain a motion to vacate the service of summons. If the service were not made upon an officer of the corporation, as directed by the Code, the judgment would not hind the corporation, and whenever its enforcement were attempted the want of jurisdiction could he shown. In this ease the service was regular, but if i't were not the order would not be appealable. The case of Wilson v. Hotel Co., 16 Misc. Rep. 48; 37 N. Y. Supp. 655, in which we reviewed a judgment entered upon alleged irregular service, was an appeal from a district court, and with such judgments we have the power of the former general terms. In appeals from the city court our jurisdiction is similar to that of the court of appeals, and we cannot review the discretion exercised in making the order appealed from.

Appeal dismissed, with costs and disbursements

All concur.


text:
    Annie Finkestein v. Jacob Barnett.
    (Supreme Court, Appellate Term, First Department,
    July 28, 1896.)
    Jury—Challenge for cause—Error cured.
    Error in overruling a challenge for canse is cured where the objectionable juror is excluded on a peremptory challenge.
    2. Breach of marriage promise—Mutual regard of parties.
    In an action for breach of promise of marriage, it is proper for the court, to refuse to eharg-e that there was no evidence that the acquaintance of the parties had “ripened into mutual love and affection,” and that plaintiff had failed to testify that there was any love between her and defendant, as defendant’s sentiments towards plaintiff are immaterial.
    3. Same—Evidence—Res gestae.
    In an action for breach of promise of marriage, testimony of plaintiff that the contract of marriage was to become determinate on her deposit with defendant of $300. and that such deposit was in fact made, is admissible as part of the res gestae, though it was not alleged in the complaint as special damages.
    Appeal from city court of New York, general term.
    Action by Annie Finkelstein amain et Jacob Barnett to recover damages for breach of promise of marriage. From a judgment of the city court (38 N. Y. Supp. 961) affirming a judgment entered on a verdict in favor of plaintiff, defendant appeals. Affirmed.
    Abram Kling, for app’lt; Alfred Steckler, for resp’t.
   BISCHOFF, J.

—The defendant, pending the selection of the jury, exhausted his peremptory challenges after an unavailing challenge for cause in each instance. Thereafter the trial proceeded with a jury, to no member whereof either party to this action objected, tinder the circumstances narrated above, no error is predicable of the trial court’s rulings upon the defendant’s challenges for cause'. It was wholly optional with the defendant to avail himself of his right of peremptory challenge, and having, by its exercise, succeeded in excluding the alleged incompetent persons from service as jurors, the error; if such there was, of overruling the challenges for cause, was effectually cured. 12 Am. & Eng. Enc. Law, 366; Friery v. People, 2 Abb. Dec. 215; People v. Court of Oyer and Terminer, 83 N. Y. 436, 456. The case referred to by the defendant’s counsel (Hildreth v. City of Troy, 101 N. Y. 234; 4 N. E. 559) is not to the contrary. Theae it appeared that a competent person was excluded as a juror upon the plaintiff’s challenge for cause, against the defendant’s objection and exception, and it was held that such exclusion was error to the defendant’s prejudice. Had the defendant, in the case at bar, refrained from his peremptory challenges, or exhausted them, and an incompetent person been permitted, against the former’s objection and exception, to serve as a juror, the reversal of the judgment would have been imperative. People v. Bodine, 1 Denio, 281, 310.

The trial court properly refused to charge, at the request of the defendant’s counsel, that there was no evidence tending to show that the acquaintance of the parties to this action had “ripened into mutual love and affection,” that the plaintiff had failed to testify that “there was any love between her and the defendant,” and that there was no evidence tending to show that the plaintiff had “suffered any anguish of mind or humiliation” in consequence of the defendant’s refusal to marry her. The damage to which the plaintiff was entitled for the defendant’s breach of his contract to intermarry with her were for the injury to her sensibilities, not to those of the defendant. Hence it was wholly immaterial that the defendant may not have entertained an amatory regard for the plaintiff. Her “anguish of mind” was sensibly apparent from her disappointment because of the defendant’s refusal to marry her at the appointed time after her repeated resistance that the contract to marry should he fulfilled, of which there was abundant evidence. It appeared from the plaintiff’s testimony that the contract to intermarry was to become determinate upon her deposit with the defendant of the sum of $500, and the plaintiff was permitted to prove, against the defendant’s objection that the special damages were not alleged in the complaint, that such deposit was in fact mad'e. The evidence was clearly admissible as a part of the res gestaé. The facts of the contract to marry, and that the defendant’s promise to marry the plaintiff became absolute, and that the recovery did not include the sum deposited, is manifest from the trial court’s charge, at the request of the defendant’s counsel, that in computing the damages to be awarded to the plaintiff the jury were not to allow her anything for the ■money alluded to. Chesebrough v. Conover, 140 N. Y. 382, 389; 55 St. Rep. 728; Holmes v. Moffat, 120 N. Y. 159, 162; 9 St.

Other exceptions-appear in the record, but were not urged upon this appeal, -and upon examination such exceptions prove to be Without merit.

The judgments of the general and trial terms of the court below should be -affirmed, with costs.

Rep. 41.

All concur.


author: McADAM J.

text:
    Patrick O’Toole v. Robert Tucker.
    (Supreme Court, Appellate Term, First Department,
    July 27, 1896.)
    Real-estate agents—Procuring purchaser—Commission.
    A broker is entitled to commissions where he produced a person ready, willing, and able to buy, and negotiations were then conducted between the purchaser and the owner, and finally resulted in a sale, though the terms originally proposed were modified. 38 N. Y. Supp. 969, aflirmed.
    Appeal from city court of New York, general term. ;
    Action by Patrick O’Toole against Robert Tucker for brokerage. A judgment in favor of plaintiff was affirmed by the city court (38 N. Y. Supp. 969)", and defendant appeals,
    Martin & Weil, for appellant.
    Weed, Henry & Myers for respondent.
   McADAM J.

The action is for brokerage on procuring a purchaser for a liquor store belonging to the defendant, situated in Thirty-third street, New York City. There is no dispute as to the employment of the plaintiff, that he introduced Mr. Reedy to the defendant as the proposed purchaser and that the defendant finally consummated a sale to Reedy for $8,000. '«The defense is that though Reedy bought at the price named he did not buy according to the terms on which the plaintiff was employed to sell, because they had to be modified by the defendant to suit the financial condition of Reedy as to the ready cash. The plaintiff demanded his brokerage after the sale, and the defendant, according to his own evidence, said, “if you had sold the place upon the terms I gave you, namely, $3,000 cash, I would have made it right with you.” The plaintiff testified that he took Reedy to the defendant, introduced him, and left the two to make their own terms, and that the defendant said “he would do the rest himself if I brought him a buyer.” When Reedy said he could not comply with the terms originally announced by the defendant, the latter did not let the matter drop but went on, got his original price, making the terms as to the ready money so that the purchaser could comply with them and in this manner the sale went through. In other words the defendant did just as he told the plaintiff he would do,— after the plaintiff brought him the buyer he did the rest himself. The plaintiff having brought the parties together and there being no intervening agency, the delay in closing the purchase does not deprive him of his brokerage. Morgan v. Mason 4 E. D. Smith, 636. Nor did the fact that the defendant subsequently modified his terms as to the mode of the payment affect such a result. Gold v. Mason, 4 Misc. Rep. 124; 55St. Rep. 696; Atwater v.Wilson, 13 Misc. Rep. 117, 68St. Rep. 200; Levy v. Coogan (Com. Pl.), 9 N. Y. Supp. 534; Dailey v. Young (Sup.), 13 N. Y. Supp. 435. Indeed the change puts the parties in the same position, in respect to the subject of the contract, as if the defendant had in the first instance employed the plaintiff to sell on the terms he took himself. Dailey v. Young, supra. There wTas evidently no revocation of the plaintiff’s authority, for the defendant’s refusal was based on the sole ground that the plaintiff had not sold to Reedy on the terms of the orginal employment.

The plaintiff testifies that when he demanded his brokerage the defendant said: “This tiling did not pan out as I expected it would. I didn’t get the amount of cash I expected.” Plaintiff then said, “ But you sold the place for $8,000,” to wThich the defendant replied “Yes, but he had but little cash; and the defendant then said “he would give me some compensation.” The acts and sayings of the parties are totally inconsistent with the proposition urged by the defendant on the argument,—that the plaintiff’s authority had been revoked, or that he or the purchaser had, prior to the sale, abandoned further efforts to consummate the same. It cannot therefore be seriously contended that there was an entire' absence of evidence to support the facts upon which the plaintiff depended to sustain his action. On the contrary, there was ample to require the submission of the issues to a jury. We cannot review the wTeight of evidence or consider the question of credibility of witnesses as the affirmance by the general term is conclusive upon those subjects. Bold v. Serrell, supra; Arnstien v. Haulenbeek (Com. Pl.), 11 N. Y. Supp. 701; Smith v. Pryor (Com. Pl.), 9 N. Y. Supp. 636; Rowe v. Comely, 11 Daly, 318; Gundlin v. Packet Co., 8 Misc. 5 St. Rep. 200. Rep. 291.

The rulings of the court on four of the defendant’s requests to charge have been criticised, but, as applied to the facts of the case, there is no merit in the exceptions taken thereto.

The jury rendered a verdict in favor of the plaintiff for for $250;—a sum less than the plaintiff was entitled to receive under his contract of employment. But as the plaintiff has not appealed, the defendant cannot complain that the. jury did not give-a verdict against him sufficiently large: The court of common pleas, in Bowe v. Comely, supra, said in regard to such a finding: “If the general term of the marine [now city] court had seen fit to set aside a verdict upon the ground that it .was a result of a -compromise, they had a power so to do in the exercise of their discretion; but this court can only consider upon appeal the exceptions taken during the trial.”

The judgment should be affirmed with costs.

All concur.


text:
    German-American Real Estate Title Guaranty Co. v. Alfred C. Coursen.
    (Supreme Court, Appellate Term, First Department,
    July 27, 1896.)
    Action for Services—Evidence.
    In an action for services rendered by plaintiff, a title-guaranty company, in examining' a title for defendant under a contract by which defendant was to furnish a survey, plaintiff cannot recover for the expenses of a survey which it caused to be made, without proof that such survey was correct, and that the survey furnished by defendant was not correct.
    Appeal from second district court.
    Action by the German-American Beal-Estate Title Guarantee Company against Alfred C. Coursen for services rendered by plaintiff in examining title to premises No. 17 West 102d street, at defendant’s request. There was a judgment in favor of plaintiff for $50 and costs, and defendant appeals. Reversed.
    Alfred C. Coursen, for appellant.
    Charles Unangst and Charles Ruston, for respondent.
   DALY, P. J.

The defendant employed the plaintiff to examine the title to premises his client was about to purchase, and applied for a guarantee against liens and defects. The plaintiff examined the title, caused a survey to be made of the premises, which consisted of a house and lot, and offered defendant a guaranty which excepted certain encroachments alleged to be disclosed by the survey. These were an encroachment by the building half an inch upon land to the west of the lot, and an encroachment of one and three-quarter inches upon the lot itself by the adjacent building on the east. The defendant refused to accept the guaranty and pay the plaintiff’s charge, on the ground that the contract called for a guaranty without regard to encroachments. The employment was by writing on a partly printed blank and as follows:

New York, 26 Feb’y, 1896.

I, the undersigned, hereby employ the above named company to examine the title to premises hereinafter described, and, if it approve of the same, to issue a guaranty in its usual form against liens or defects in the sum $24.250 on the terms hereinafter set forth. It is agreed that the following statements are true to the best of my knowledge and belief, and are representations on the faith of which said guaranty is to be issued:

Party to be guarantied: William Burns.

Address: Alfred C. Coursen, 114 Nassau St.

Premises now owned by John Yule.

Interest to be guarantied: Fee simple.

Location of premises: 17 West 102 St.

Diagram showing premises:

Premium: $50.00.

Disbursements: None.'

Survey to be furnished t-

Documents to be drawn: None.

Incumbrances and adverse interests, so far as known now, on premises and by whom held or claimed: Mtge.?

Disposition thereof:

If the applicant, before the issuing of the policy, shall have any further intimation or information as to defects, liens, incumbrances, or objections affecting the title to the premiises, the same will at once be made known to the company. Where a guaranty is issued, any delay or expense in obtaining actual possession of the premises shall be borne wholly by the party guarantied, and not by the company.

A. C. Coursen, Applicant.

At the time of the employment, the defendant delivered to the general manager of the plaintiff a blue-print copy of what purported to be a survey of the premises, and the defendant testified that it was said by the manager and himself that that survey should be the survey to govern the contract. The manager swore that he never stated that he would accept the survey as correct, or anything to that effect. The finding of the justice in favor of plaintiff indicates a conclusion that the defendants contention that there Avas to be a guaranty irrespectve of encroachments Avas not borne out by the evidence, and in that Ave agree. It Avould be a singular tiling if a corporation engaged in the business of guaranteeing titles should agree to do so Avithout regard to the important question of encroachment, and very strong proof must be adduced in support of an allegation of such an improvident contract. The defendant claims that it is implied from the stipulation that he was to furnish a smwey, and that the survey to be furnished was to govern the contract, and such survey showed no encroachment. But it aauII immediately occur to any one that, if plaintiff agreed to issue a guaranty to defendant’s client upon a survey furnished by defendant, it was necessary implied, on defendant’s part, that the survey Avas correct. By agreeing to furnish a survey and furnishing this paper as a survey, defendant represented it as correct. If it Avere not correct, it Avas no surArey, in any proper sense. Plaintiff Avas, of course, entitled to test its accuracy by actual survey, and, if it Avere inaccurate, to tender such a guaranty as was reasonable. If the guaranty Avere refused, then the expense of examining the title could be recovered under the employment in the written contract. It is not significant on the question of agreement as to the defendant’s survey that the words “or encroachment exception” Avere struck out of the printed portion of the contract. Since the defendant wTas bound to furnish a correct survey, encroachments, if any, AArould be disclosed by it, and further reference to them AAras unnecessary. The judgment Avas based, of course, upon the assumption that there ivas an encroachment, as claimed by plaintiff, and that a proper guaranty Avas tendered; but the record fails to disclose that the plaintiff’s survey Avas correct and the defendant’s Avas not, so the judgment is unsupported by necessary proof, and must, therefore, be reversed. Upon a neAv trial, evidence may be offered of the required facts.

Judgment reversed and a new trial ordered Avith'costs to abide the ewent. All concur.

      The Printed words “or encroachment exception” were struck out


text:
    Jacob H. Wheatfield v. Byron A. Beal.
    (Supreme Court, Appellate Term, First Department,
    July 27, 1896.)
    Contracts—Waiver op Provisions.
    Defendant, an insurance agent, employed plaintiff to solicit insurance on commission; the contract providing that the commission should accrue only as premiums should be paid in cash, and that under no circumstances should the plaintiff allow a policy to leave his possession without payment of the premium. Plaintiff procured an application from one H., and the policy was delivered to H. by plaintiff. The premium was not paid at the time, because H. wished to change the policy. This was reported to defendant, who, without objecting to the non-payment of the premium, agreed to make the change, and thereupon the policy was returned to him. H. was again examined by the medical examiner, and rejected, and the company refused to return the policy issued. There was evidence that, on a few previous occasions, plaintiff delivered policies without collecting the premiums. Held, that the evidence did not show a waiver- by defendant of the condition as to payment of premiums.
    Appeal from city court of New York, general term.
    Action by Jacob H. Wheatfield against Byron A. Beal to recover $375 and interest, commissions for procuring a policy of insurance on the life of one David Haas. A judgment in favor of plaintiff was affirmed by the city court (39 N. Y. Supp. 824), and defendant appeals.
    Alexander & Green (Allan McCulloh of counsel), for appellant.
    Secor & Page (Horace Secor, Jr., of counsel), for respondent.
   McADAM, J.

The defendant, an insurance agent, by agreement dated August 9, 1893z appointed the plaintiff his sub agent to canvass for applications of insurance, and to forward the same to the Equitable Life Assurance Society, it being provided that:

“If the risks are approved and policies issued by the said society, the said party of the second part [the plaintiff] shall collect and forthwith pay over to the said party of the first part [the defendant] the premium on assurances thus effected unless otherwise directed by the said society,1”

It was further provided that:

“Brokerages shall accrue only as the premiums are paid for in cash to said party of the first part or said society. No policy or premium receipt shall be considered as settled nor shall any risk be assumed thereunder by said society, unless the premium shall have been paid in cash to said society. * * * Under no circumstances whatever shall said party of the second part allow a policy of assurance to leave his possession unless the first premium shall have been duly settled, except to return the policy to said party of the first part or said society. * * The said party of the second part shall have no claim against said pary of the first part or said society, for brokerages, or any other claim whatever, under this contract not herein specifically authorized.”

Plaintiff sued on this agreement to recover commissions claimed to have been earned by him upon a policy of assurance in the form of a 20 years indemnity bond alleged to have been procured by him, and issued by the Equitable Life Assurance Society of the United States, upon the life of one David Haas. Haas was examined by the society’s physician and accepted. The bond was written, and received by the plaintiff, and deli ered to Haas, who did not pay the premium. Subsequently Haas changed his mind, and desired an endowment policy. He surrendered the bond, was re examined for the endowment policy, and rejected. The bond was retained by the society, to which it was surrendered, and it refused to issue any new obligation. As the premium on the obligation was not paid, it is apparent that there can be no recovery by the plaintiff, unless the defendant has by some act of his, irrespective of the question of premium, made himself liable. The plaintiff succeeded in the court below on the theory that the defendant refused to return the bond after the rejection of Haas on the second examination, because the applicant was “growing too fast,” and that there by the defendant waived tender of the premium, which might have been paid then and there if defendant had placed his refusal to deliver the bond on the ground of non-payment of premium.

The facts may be summarized as follows: David Haas, a, young man, 18 years of age, made application for one form of policy, was examined, and a policy was written and delivered to him by plaintiff, but no premium paid or offered to be paid. Subsequently, the applicant changed his mind and desired a different form of policy. He consented to a surrender of the first policy, surrendered it, was examined for a different character of insurance and rejected. The society refused to reissue the first policy, or make a new one Finding he could not get the endowment policy, Haas concluded to repossess himself of the indemnity bond but he was too late.

The appellant intended that the first policy be returned to-the society, and for that £ urpose it was given to the defendant, who gave it to the pelicy clerk of the society; and the defendant could not get it back, because the society refused to reissue it. He failed to comply with the demand to return the policy, not because Haas was growing too fast, but for the reason that the society acted on the surrender of the policy by retaining it, thereby making it impossible for the defendant to return it The society had a right to refuse to issue an endowment policy, and the defendant could not compel it to issue one, for he had no control over its action in that regard. The defendant employed the plaintiff to solicit applications for insurance, and was himself employed by the society for that purpose. He submitted all applications to his employer, which acted upon them as he saw fit, accepting or rejecting at its pleasure,—a course of business as well understood by the plaintiff as by the defendant. Under such circumstances, the defendant was guilty of no breach of duty to the plaintiff, and did nothing which justi fies a recovery against him for brokerage on moneys which never reached his hands, and which, upon the facts disclosed, never can.

The only evidence of waiver is that on a few previous occasions the plaintiff delivered policies without collecting the premium, and afterwards collected the money, or paid it “out of his own pocket”; and from this it is argued the plaintiff might extend a' short credit to his customers. Assuming this to be so, and that the delivery of the bond to Haas was with the acquiescence of the defendant, there is nothing in either circumstance which estopped the society as to its course of dealing with applicants or policy holders, or Avaived, eAren as to the defendant, the special provision of the contract that the plaintiff’s right to brokerage should in no case attach until the premium was first actually paid to defendant or to the society. Haas kneAv when he directed that the first policy be surrendered to the society that it might act on surrender, and keep the policy as an inoperative instrument. He knew also, when he submitted to the second medical examination, that the society was under no obligation to accept him as a suitable person for an endowment policy, but AAras at liberty to reject his application; and he had no right to expect, much less demand, that the society Avould conform to his changeable notions respecting the kind of insurance he desired. The remark attributed to the defendant as an excuse for not deUvering the policy, that the plaintiff was “growing too fast,” Avas simply assigned by him as the reason why the society had rejected the second application, and had reference to nothing else. The defendant could not have delivered the policy to the plaintiff or to Haas at the time it Avas demanded even if he had desired to do so, whether the premium thereon Avas paid or not, for the unanswerable reason that the insurer had, agreeably to Haas, desire, accepted the surrender, and thereafter declined to reissue it. And trover would not lie against the defendant for refusal to deliver the policy, for such refusal was not in itself conversion. In a proper case it would only be evidence of it, and a defendant is always at liberty to show lawful reasons for not complying with a demand made, such as inability to comply arising from no fault of his. Andrews v. Shattuck, 32 Barb. 396; McClellan v. Wyatt (City Ct. N. Y.) 11 N. Y. Supp. 686.

At the- trial, the defendant and the society were treated, as if one and the same person, instead of two entirely different entities; and its acts were attributed to him, as if he was responsible for its part in the transaction. We fail to discover any legal ground upon which the recovery had can be sustained.

The judgment must be reversed, and a new trial ordered,, with costs to the appellant to abide the event. All concur.


author: FOLLETT, J.

text:
    Village of Canandaigua v. Robert M. Benedict et al.

    (Supreme Court, Appellate Division, Fourth Department,
    July 30, 1896.)
    Condemnation proceedings—Possession before judgment.
    Code Civil Procedure, section 3379, which provides that, where1 petitioner in a condemnation proceeding is in possession of the premises, an order may be granted authorizing petitioner to continue possession, does not apply where the possession was taken by force; and a petitioner since so obtaining possession is not entitled to such order where he has since taken no steps to condemn the nroperty.
    Appeal from special term, Ontario county.
    Proceeding by the Village of Canandaigua, by its board' of water commissioners, against Robert M. Benedict, impleaded with the Ontario Orphan Asylum, to condemn real estate. From an order authorizing plaintiff to continue in possession of the premises described in the petition, defendant Benedict appeals.
    J. H. Metcalf, for appellant.
    James C. Smith, for respondents.
   FOLLETT, J.

Robert M. Benedict, the defendant in these proceedings, is the owner in fee and in possession of a farm containing 131 acres of land, situate on the west side of Canandaigua Lake, and about one mile south of the village of Canandaigua. A public highway, known as the “Lake-Shore Road,” extends through the farm in a northerly and southerly direction. The village of Canandaigua is a municipal corporation of this state, situated at the north end of this lake, and in 1895 was engaged in constructing a system of waterworks, through its board of water commissioners, pursuant to chapter 181 of the Laws of 1875. June 10, 1895,. the plaintiff filed a map describing a strip of defendant’s-land 20 feet wide and 1,070 feet long, lying within the bounds of this highway, on which the plaintiff desires to acquire the right to construct and forever maintain a line of iron pipes, 12 inches in diameter, laid under the surface,, for conducting water to the village, and also the right to erect and maintain a 'line of poles upon this strip of land to-support a wire cable to be used for transmitting power by means of electricity, for the purpos°e of pumping water from the lake into a reservoir, which is connected by the water-main with the distributing pipes in said village. Before the map was filed and the extent of the easement required, defined, negotiations for the purchase of an easement had been carried on between the litigants, but no contract was entered into. On the 5th of June, 1895, Mr. Benedict, apprehending that the village would by force enter on his land without acquiring any right, open a trench, lay the pipes therein, and contract its electrical line, began an action in the supreme court to restrain the village from carrying out its purpose. A temporary injunction was granted, restraining the proposed action of the village, which, however, was shortly afterwards vacated, before answer, and on the ex parte application of the village. The injunction being vacated, the board of water commissioners and the contractors engaged in the construction of the works entered, June 22 and 23, 1895, on Benedict’s land, with a large force of men,—100, it is alleged, and not denied,— and by force overpowered Benedict and his employes, who resisted until a breach of the peace was imminent, opened the trench, laid the pipes therein, covered them, erected the poles, and strung the cable thereon. This is the only possession which has been acquired, and this is the way in which it was acquired, except early in April 1S95: the pipes were distributed on the ground within the bounds of the highway, without the assent or dissent of Benedict. July 16, 1895, the village, by its board of commissioners, began these proceedings to acquire by condemnation the rights which it had so taken possesssion of. On July 26, 1895, Benedict answered, denying the right of the village to acquire these rights by condemnation, August 13, 1895; upon the application of the plaintiff, an order was gran’ed pursuant to section 3379 of the Code of Civil Procedui e authorizing the village, its officers and agents, to continue in the possession of the premises described in the petition, and to use them for its purposes. The order also restrained Benedict from prosecuting his action in the supreme court, and from prosecuting summary proceedings in the county court to recover possession of his premises. From this order Mr. Benedict has appealed. On the day when it was granted, the issue joined in this proceeding was referred to a referee to hear and determine, since which the village has taken no steps to appraise and acquire the rights which it seeks permanently to enjoy. It has contented itself with the possession so acquired, and the protection of this order which, as before statéd, restrained the landowner from seeking redress for his alleged wrongs in the courts of this state. The constitution provides that private property shall not be taken for public use without just compensation, and there is no statute in this state authorizing the courts to protect a municipal corporation (having the power conpulsively to acquire lands or easements by condemnation) in the possession of property which it has acquired by a trespass, or by force or by fraud. This was so determined In re St. Lawrence & A. R. Co., 133 N. Y. 270, 45 St. Rep. 207. There is no material dispute over the facts in this case. It is not asserted that the possession of the village Avas acquired pursuant to any agreement or understanding Avith the landowner, nor AA'as possession taken through mistake, or through any misapprehension of the rights of the village, but it Avas taken by force; and so held in the casé cited, the village is not in possession of the property sought to be condemned, AAdthin the meaning of section 3379, and it cannot be protected in such possession under the provisions thereof. Again, the order authorized by this section is not designed for the permanent protection of a corporation in the possession AA’hich it may have peaceably acquired, but for temporarily protecting its possession pendente lite, and AAdiile actively engaged in prosecuting a proceeding for condemning the property sought; and when it appears that the corporation is guilty7" of laches in the prosecution of its proceeding, the order should be set aside. It is true that the landoAA’ner may prosecute the proceedings, but he is not required to press proceedings to a conclusion instituted for the purpose of depriving him of property or rights Avith Avhich he does not wish to part. The corporation is the actor and it is its duty to be diligent in acquiring the property or rights AA’hich it seeks. It cannot, though it has acquired peaceable possession, protect its possession indefinitely under this section, and restrain the landoAvner from prosecuting his legal remedies. Unless the corporation prosecutes its proceedings with diligence, the restraining order should be vacated on that ground.

The order appealed from should be reversed, with costs. All concur, except ADAMS, J., not voting.


text:
    Town of Mount Morris v. John King.
    (Supreme Court, Appellate Division, Fourth Department,
    July 30, 1896.)
    1. Equity—Laches—Removal of cloud fbom title.
    A town issued bonds in aid of a railroad, and received therefor shares of stock of the railroad company. Afterwards another com* pany proposed to lease the railrdad, but required as the condition that the town should transfer such stock to it. Thereupon an order was duly granted by the county judge authorizing the town to sell the stock. Held, that an action by the town to compel the assign, ment to it of the stock which had been transferred pursuant to the order granted by the county judge was not an action to remove cloud on title, but was for the recovery of specific property, and the right of the town to equitable relief could be denied after twenty years had elapsed.
    3. Towns—Sale of bailboab stock.
    Under Laws 1869, chap. 907, section 5, which authorizes towns, on the order of the county judge, to sell stock issued to it for bonds issued by the town in did of a railroad, but which does not in terms require the stock to be sold for cash, a transfer for a consideration other than cash is not void. People v. Eddy, 57 Barb. 593, distin. guished.
    Appeal from special term, Livingston county.
    Action by the town of Mt. Morris against John King, individually and as trustee of the New York, Lake Erie & Western Railroad Company. The complaint was dismissed on the merits, with costs, and plaintiff appeals.
    This action was begun June 23, 1892, to compel the defendant to assign to the plaintiff 250 shares of the capital stock of the Avon, Geneseo & Mt. Morris Railroad Company,which the plaintiff assigned to the predecessor of John King, December 26, 1871. The plaintiff now is, and since April 17, 1818, has been, one of the towns of the county of Livingston, in this state. 3 Rev. St. 520. It is conceded that, pursuant to chapter 907 of the Laws of 1869, the plaintiff, in 1870, duly issued bonds for $25,000 to aid in the construction of the Airon, Geneseo & Mt. Morris Railroad, and that August 24, 1871, said bonds were delivered to said railroad corporation in exchange for 250 shares of its stock, of the par value of $100 each, for which a certificate of stock was issued. In the autumn of 1871, negotiations were pending between the Avon, Geneseo & Mt. Morris Railroad Company and the Erie Railway Company in respect to the latter’s leasing and operating the road of the former corporation. As a consideration for entering into the lease, the Erie Railway-Company required that the shares of the stock held by the-plaintiff be assigned and transferred to it. In November or December, and before the 15th of December, 1871, a special town meeting of the taxpayers of the town were called, to determine whether the terms should be complied with. The object of the meeting and the merits of the question were discussed in the local newspapers of the county. At this meeting there were present three or four hundred of the town, all of whom, except one, voted in favor of transferring the stock, as required by the Erie Railway Company. In December, 1871, a majomty of the taxpayers of said town, representing a majority of the taxable property thereof, as shown by the last tax list or assessment roll, signed a peition to the county judge of the county of Livingston, setting forth that the town owned 250 acres of the capital stock of the Avon, Geneseo & Mt, Morris Railroad Company, a certificate for which was then held by the commissioners of the town. The petitions contain the following clause: “And your petitioners further show that they believe it will be for the interest of said town that the said commissioners be authorized and empowered to dispose of said town for such consideration as may be for the best interest of said municipal corporation, and also in consideration that the Erie Railway Company shall put the said Avon, Geneseo & Mount Morris Railroad in first class order, and take a lease of said railroad company to run the same for the period of the unexpired term of the charter of the Avon, Geneseo & Mount Morris Railroad Company, to keep the same in first class order, making the village of Mount Morris a point on said road for the benefit of said municipal corporation.” December 15, 1871, the taxpayers’ petition was presented to the county judge of the county of Livingston, who on that day made and entered an order which contains, among other provisions, the following: “I, Solomon Hubbard, county judge of Livingston county, hereby order that said commissi oners aforesaid, be empowered and fully authorized to sell said, railroad stock aforesaid, as in their judgment, may be for the best interest of the said town of Mount Morris. I hereby also certify that said order is hereby made and granted upon the petition of a majoritj’- of the taxpayers of said municipal corporation, representing a majority of the taxable property thereof, as shown by the last tax list or assessment roll of' said town of Mount Morris, in the county and state of New York aforesaid. And I further certify all the facts herein set forth have been duly proved before me to mysatisfaetion, this 15th day of December, 1871.” December 26, 1871, the-commissioners of the town executed an assignment of said 250 shares, and of the certificate under which they were held to “Jay Gould, trustee for the Erie Railway Company,” who, December 29, 1871, surrendered said certificate, with assignment indorsed thereon, to. the Avon, Geneseo & Mt. Morris Railroad Company, which issued a new certificate to Jay Gould, as trustee,” which was dated that day, and numbered 262. March 8, 1872, Jay Gould assigned and transferred certificate No. 262 to Hugh J. Jewett, as receiver, Avho, March 22, 1876, surrendered said certificate and assignment to said railroad corporation, and received a new certificate for said shares in his name, as receiver. May 10, 1880, said Hugh J. JeAvett, as receiver, assigned said shares to himself as president, and the certificate was surrenderd to said railroad corporation, and a neAV certificate for said shares AA’ere issued to Hugh J. Jewett, as president. February 10, 1885, Hugh J. JeAvett transferred said shares to the defendant, John King, as trustee, who surrendered said certificate and received a neAV one therefor, under AA'hich said shares are now held by said John King, as trustee for the New York Lake Erie & Western Railroad Company, AA’hich has succeeded to the rights of the Erie EailAA-ay Company in said shares and in and to the railroad of the Avon, Geneseo & Mt. Morris in said shares and in and to the right of the Avon, Genese Mt. Morris Railroad Company, December 27, 1871, the Awon, Geneseo & Mt. Morris Railroad Company and the Erie Rail-AA-ay Company entered into a contract by AA’hich the former leased to the latter its railroad for and during the full term of its charter, and for any extensions or renewals thereof AA’hich might be granted in consideration of the payment of 6 per cent, upon the capital stock of the first named corporation, payable semi-annually, and of the interest on $20,000 of the mortgage bonds of said corporation, together Avith $1,000 annually for the expense of maintaining its corporate existence. Thereafter the Erie Raihvay Company entered upon possession of said railroad, and it and its successors have maintained and operated it from that time to the present.
    William A. Sutherland, for appellant.
    George F. Brownell, for respondents.
   FOLLETT, J.

The pleadings present an issue as to whether the lease betAveen the A.von, Geneseo & Mt. Morris Railroad Company and the Erie RaihA’ay Company and the title of the successors of the latter corporation to the shares of stock have been forfeited by the alleged failures of tlie lessee and its successors to-- operate the road of"1 the lessor in accordance with the terms o£ the lease; but the issue has dropped out of the case. There is no finding-of fact upon it, nor was there any request preferred by either party for a finding on this issue.. Hone of the findings of fact are challenged by the plaintiff, and no exception was taken in its behalf on the trial, and so this judgment must be reversed upon the facts found by the special term. However this issue was determined adversely to .the-plaintiff when this case was brought before the late general-, term on an appeal from an interloctuory judgment overruling a demurrer to the complaint. It was then held’ that there had been no forfeiture of the lease or of the right of the defendants to the share transferred to their predecessor: 77 Hun, 18, 28 N. Y. Supp. 281. The only ground for a: recovery in this action presented by this record is that the-sale of the shares made December 26, 1871, by the commissioners of the town, was void, under the fifth section of chapter 907 of the Laws of 1869, because the sale was not for- cash.

Among other defenses interposed as-a bar to this action are the 6, 10, and 20 years’ statutes of limitations. For-the-purpose of avoiding these defenses, the position is taken in behalf of the plaintiff that this is an action to remove a cloud upon its title, and that, so long as the cloud exists, the statutes of limitations do not run. In case a person is in the possession of property, claiming to be its owner, and anoth crasser ts that he has title thereto or a lien thereon, by virtue-of a written instrument which, on its face, affects the title- or creates a lien, such an instrument is a cloud on its title. A bill quia timet or an action to cancel the instrument may be maintained, which is an action to remove a cloud; 1 ut su'ch an action is never an appropriate remedy for the recovery of property which the plaintiff has transferred and surrendered the possession of to the defendant or to his predecessor in title. Actions falling under the general head of “Equity Jurisprudence,” known as “quia timet “actions’6 (such as actions to cancel instruments and remove clouds), are purely preventive remedies for avoiding apprended injuries which may be occasioned to the plaintiff’s title by reason of some action which may be taken in the future by the defendant, under and by virtue of the instrument alleged to be a cloud. Fonbl. Eq. c. 1, § 8; Snell, Eq. (9th. Ed.) 728 et seq.; Story, Eq. Jur. § 692 et seq.; Pom. Eq. Jur. § 1398; 2 Am. & Eng. Enc. Law, 298. The case at bar is in no sense an action to remove a cloud on title, but it is an action for the recovery of specific property, and it is barred by the lapse of 20 years; since the cause of action accrued. If it be said—and it can be—that there are cases in this .and -other states breaagM for the recovery of property, and incidentally, for the (Cancellation of instruments standing, in the way of recovery., which are called “bills quia timet’y .and “actions to remove «clouds upon title,” it may be an.swered that, apon an examination of those eases, it will be .found that the names .given to those actions were not important, and that they were loosely called “actions to remove .clouds” or “bills quia .timet.” though in fact they were ¡not shell, but were actions for the recovery of property and for the .cancellation of instruments standing in the way of recovery.. Again an action in the nature of a bill quia timet,1 like an action for the specific performance of a contract;, is-not maintainable umless equities of the plaintiff are clearly.' ■established,, and the action is brought without reasonable ■ (delay. There is no equity in the plaintiff’s case. Before-any -steps were taken to sell the plaintiff’s stock, a town; meeting was called, which was largely attended. The terms - of the sale were discussed, and it was voted with but one-dissenting voice that the stock should be sold on the terms-offered. After this an unquestionable majority of the taxpayers of the town, representing a majority of the taxable property thereof, petitioned the county judge of the county that the commissioners be authorized to sell the stock on terms offered, which prayer was granted, and the sale openly and publicly made in pursuance of the order. After the lapse of 20 years, 5 months and 27 days from the date of the transfer, this plaintiff brings this action to set aside its own voluntary transfer, ou the ground that it was not authorized by the terms of the statue. There was no fraud in the transaction, no concealment, and the situation has been known to the officers of the town and to all its taxpayers during all these years. If • the plaintiff ever had a right set aside this sale, it has slept so long upon that right, and has acquiesced in the situation for such a length of time, that a court of equity will grant it no relief,

It is urged that the sale of the stock was void because it was not for cash. Section 5 of chapter 907 of the Laws of 1869 (the act under which the town was bounded, the stock taken and sold) provides:

“Such stock * * * purchased by said commissioners may be sold by them ® "* * only upon the order of the county of judge, made upon the petition of a majority the taxpayers of said municipal corporation representing a majority of the taxable property thereof, as shown by the last preceding tax list or assessment roll; and the proceeds from such sale shall be forthwith paid by them to the treasurer for other proper officer) of such municipal corporation, to be by him vested in a sinking fund, as hereinafter provided.

It is said that People v. Eddy, 57 Barb. 593, is a controlling authority for the position asserted by the plaintiff that the sale was absolutely void, and incapable of ratification. The case arose under a different statue, —chapter 64 of the Laws of 1856, as amended by chapter 401 of the Laws of 1857, the sixth section of which provided.

“They [the commissioners] may dispose of such work in their discretion to any purchaser or purchasers for cash; but shall not sell or dispose of such stock at less than par except upon a written request of a majority of the tax payers of said town, their heirs or legal representatives representing a majority of the taxable property of that town appearing upon the last assessment roll proof of which shall be by affidavits.”

The section under which the sale in the case at bar was made does not in terms require that the- stock of towns shall be sold by the commissioners for cash; and, besides, in this case, every interest in the town the commissioners, the taxpayers and the officers of the town—assented to this sale, have acquiesced in it for 20 years, and, if this question were an important one, it would be necessary to consider the difference between the two statutes, and the facts lying at the foundation of each case; also whether the statutory pro vison is simply a limitation on the power of the commissioners or is a limitation on the power of the town. The power to dispose of property is an incident of ownership, unless the owner is under some disability. Had the commissioners with the assent of the taxpayers and of the county judge, exchange these shares for a site for a town house, or for other property which the town was authorized to acquire would it be clear that such a sale was void, and could be set aside, after it had been acquiesced in for 20 years, and without restoring or offering to restore, the consideration received? But, as this case may be well decided upon other grounds, it is unnecessary to consider the one last suggested.

The judgment should be affirmed, with costs. All concur.