text:
    James Flanagan, as Executor of, etc., of Catharine Flanagan, Deceased, Resp’t, v. Patrick Fox, App’lt.

      (New York Common Pleas, General lerm,

      Filed December 4, 1893.)

    Vendor and vendee—Title.
    Where a vendor agrees to give a title such as a named title company will approve, the vendee is not bound to accept it without such approval, though, in fact, free from legal objection, unless such approval is prevented by his own act.

      Appeal from a judgment of the general term of the city court of New York affirming a judgment dismissing the complaint at trial term of the same court.
    Action by the vendee under a contract for the purchase and sale of real property to recover the amount paid on account of the purchase money, with damages, because of the vendor’s alleged non-performance of the contract on his part.

      J. Baldwin Hands, for app’lt; John W Konvalinlca, for resp’t.
   Bischoff, J.

Plaintiffs testatrix entered into a contract with defendant for the purchase by her of certain lands on Brad hurst avenue in the city of New York. This contract among other things provided that “ the vendor shall give and the vendee shall accept a title such as the Title Guarantee & Trust company will approve.” At the time appointed for the delivery of the deed of conveyance in exchange for the payment of the balance of the purchase money the title company refused to approve the title and.the vendee thereupon declined to accept it and to pay the purchase money. On the trial of this action, which was brought to recover the sum paid on account of the purchase money, at the time of the making of the contract, with the expenses incurred by the vendee in the investigation of the vendor’s title, the above facts appeared, as did also that the title company refused to approve the title owing to the opinion of its counsel that the ownership of part of the lands mentioned in the contract, which extended into a former swamp, was in doubt, and that, because of an alleged irregularity in a certain action in the supreme court wherein Lydia Beebe, Louisa Dekay Townsend, and others, were plaintiffs, and Andrew L. Hamersiey and others were defendants, which was brought for the partition of lands of which the lands described in the contract were a part, the interest of a former co-tenant, Charles Van Bensselaer Townsend, was still outstanding in him. No evidence of any facts of which the doubtful character of the title to the swamp lands was predicable in the opinion of the title company’s counsel was adduced. Concerning counsel’s other objection, however, the record of this appeal shows that the alleged irregularity referred to arose from the fact that the judgment roll in the partition action failed to show that notice of application to the court for the appointment of a guardian ad litem for said Charles Van Bensselaer Townsend, who was the son and heir-at-law of Louisa Dekay Townsend, a deceased plaintiff, and at the time an infant under fourteen years of age, was given either to the infant or his general guardian, or to the person with whom the infant then resided. The judgment roll was received in evidence. It appeared therefrom that by an order of the court, dated March 15, 1869, the action was revived and leave given to the surviving plaintiffs to bring the infant in as a party defendant by service of a supplemental summons and complaint; that such service was made both upon the infant and his general guardian and that a guardian ad litem was thereafter appointed for the infant who appeared and answered in his behalf. The application for the appointment of a guardian ad litem, we apprehend, was made by the prochein ami of the infant, though such does not affirmatively appear, but the judgment roll did not disclose, that notice of it was given either to the infant, or his general guardian or to any .other person. The trial judge deemed the objections of the title company’s counsel invalid and its refusal to approve the title because of those objections, unreasonable, and on motion of defendant’s counsel dismissed the complaint.

In passing we may say that upon the evidence- we concur in the views of the trial judge that the objections raised by the Title Company’s counsel did not point out any defect in the vendor’s title. It is not necessary to discuss them, however, for be that as it may, it was in our opinion error to dismiss the complaint.

“Expressio unius est exclusio alterius,” “Expressum facit cessare tactum," Broom’s Legal Maxims p. 650. Hence, if the contracting parties have expressly provided for the same subject matter, that which the law would otherwise have implied does -not prevail, Chitty on contracts, vol. 1, p. 89. Again, it is a fundamental rule of construction that effect must be given to every part of the contract; Parsons on contracts, vol. 2, p. 505. If therefore the language of a particular covenant is fairly open to a construction that the parties intended to create a right and to impose a correlative obligation, which would not have been extant without it-it will be error to assume that the covenant is cumulative respecting an implied right and its corresponding obligation and so, redundant. In every contract for the purchase and sale of real property a covenant on the part of the vendor to ten dor a-good title,—that is to say—one free from valid legal objection, will be implied, if the vendee has not agreed to be content with another or different one, Suydan on Vendors, vol. 1, p. 16; Gerard’s Titles to Eeal Estate 3rd ed. p. 482, and conforming, therefore, to the maxims and rule above stated it must be assumed that the parties to the contract, for the breach of which this action was brought, meant just what they said when the vendor agreed to give, and the vendee agreed to accept a title such as the Title Company would approve. Obviously, to hold that this meant no more than that the vender should tender a good title, one free from valid legal objection, is in effect to condemn the covenant as meaningless or redundant.

In Hudson v. Buck, 23 English R. Moak’s Notes, p. 808, 811, the court construed a contract to purchase “subject to the approval of the title by the purchaser’s solictor ” to comprehend something more than an obligation on the part of the vendor to tender merely a title free from valid legal objection. Indeed, the court intimated that the vendee’s exaction of the condition that the title should be appioved by his solicitor was regarded by it as an intentional precaution on his part against the possibility of being subjected to the vexation and expense of litigating disputed questions affecting the title by reason of his having entered into the contract of purchase; and such, it seems to us, was the purport of the covenant in the case at bar. Why else should the parties have stipulated that the Title Company shall be the sole arbiter as to whether the title tendered is good or bad ? There is no legal or moral objection to a contract by the terms of which one of the parties agrees to procure the approval of a third person before the other of the contracting parties shall be required to perform the contract on his part. A very common instance of such contracts is one whereby a builder agrees to erect a building and that he shall be entitled to payment only upon his production of the architect’s certificate of approval of the work. In every such case the procurement of the act of such third person constitutes a condition precedent to the right to require performance by the other of the contracting parties; and if the condition is not complied with the latter cannot be required to perform, Wharton on Contracts, vol. 1, § 598, &c.

Nor is the party who has agreed to secure the act of a third person as a condition precedent to performance by the other of ■ the contracting parties absolved from compliance with the condition because of the unreasonable refusal of the third person. The parties have expressly agreed that his act shall be material. Whether it is so in fact, or not, is beyond the province of the courts to decide. The courts cannot make an agreement for the parties and cannot therefore dispense with a condition which they have imposed. If otherwise, one of the contracting parties could be required to accept that which he has not agreed to accept under pain of being refused aid if the other has failed to offer that which he has agreed to give. TJiere is a class of cases, notably those involving building contracts of the kind hereinbefore mentioned, wherein it has been held that if the third person unreasonably, or in bad faith, refuses to do the act required of him, performance by the contracting party who had agreed, to procure that act to be done may be dispensed with in that respect. All of those cases, however, differ from this in that in those the contract was partly executed by the party who was permitted to recover. He had parted with something of value, either in services or materials, to the other of the contracting parties, which it would have been unconscionable for the latter to retain and yet to refuse to pay the agreed or reasonable value thereof. Here however, the vendor has parted with nothing. The contract remained wholly unexecuted on his part

The opinion of Judge Brown in Vought et al v. Williams, 120 N.Y. 253, 256; 30 St. Rep. 899 ; to the effect that a covenant by the vendor to convey by a title such as the vendee’s solicitor should approve does not require performance of a condition precedent by the vendor, is obiter dictum. That was an action for specific performance against the vendee and the decision of the court in affirming a judgment denying the relief demanded was as in Hudson v. Buck, supra, predicated of the non-marketability of the title.

On a former" appeal herein to the general term of the court below the latter intimated in its opinion Flanagan v. Fox, 52 St. Rep., 432 ; that the case at bar, is controlled by the principles which distinguish those cases wherein it was held that a promise to perform services, or to sell and convey property, satisfactory to the other of the contracting parties, is fulfilled if the latter ought reasonably to be satisfied and that his unreasonable refusal to be satisfied will not constitute a bar to his obligation to perform the contract on his part. Upon examination, however, it. will appear that the cases referred to are also those of partly executed contracts where the party required to perform had received the services or property, and the rule was applied that that which in reason and. good faith he ought to be satisfied with, the law will regard as satisfactory to him, since it would be unconscionable for him to accept the fruits of another’s promise and arbitrarily to refuse payment or other performance on his part. Johnson v. Bindsell, 16 Daly, 232; 31 St. Rep. 280. Here, however, the covenant was not to tender a good title, or one satisfactory to the vendee, but one which the Title Company would approve. A good title, one free from valid legal objection would, under' the decisions mentioned in the opinion of the court below, in the case of a partly executed contract, as matter of course be one which the vendee should ordinarily be satisfied with, but, as already pointed out, a covenant to tender a title, such as the Title company will approve, is not the same, in effect, as to tender a good title, one free from valid legal objection, or satisfactory to the vendee. Covenants to convey a good title, one free from valid legal objection or satisfactory to the vendee,, may be convertible with each other; but either would be implied in every contract for the purchase, and sale of real property. A covenant, however, to tender a title such as the Title Company •will approve requires the vendor to have it so approved if effect is to be given thereto. Hor is there anything unconscionable, or implying bad faith on the part of the vendee, in the latter’s insistance upon such approval while the contract remains wholly unperformed on the part of the vendor in other respects. A desire to secure the insurance of his title by the Title Company may be the motive for his insistance upon the approval.

We may add that if the party who had covenanted to procure the approval of a third person as a condition precedent to his right of performance by the other of the contracting parties is prevented from procuring it by the act of the latter, in that event the former will be relieved from performance in that respect, since under such circumstances the latter will be deemed to have waived it. Ho one will be permitted to urge his own wrong to the detriment of another. But that plaintiff did in any manner hinder defendant from procuring the Title Company’s approval of his title does not appear.

The judgments of the general and trial terms of the court below should be reversed and a new trial ordered, with costs to the appellant to abide the event.


source: Caselaw Access Project

author: Bischoff, J.

license: Public Domain

text:
    Harry Rozen, Resp’t, v. The Dry Dock, East Broadway and Battery Railroad Company, App’lt.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    Evidence—Contract.
    In an action by plaintiff to recover a deposit made by him to secure his contract oí employment as conductor, by the terms of which the report oí a detective as to the number of passengers carried on any trip of the car, of which he was conductor, was made final and conclusive evidence of any fact stated therein, the exclusion of such report, when offered in evidence, is error.
    Appeal from a judgment for plaintiff rendered by the district court in the city of New York for the fifth judicial district upon the verdict of a jury.
    Action to recover the sum deposited as security for plaintiff’s faithful performance of his duties at the time of entering into defendant’s service as conductor of one of its street railroad cars.

      James & Thomas H. Troy, of counsel, for app’lt.
   Bischoff, J.

This action was brought by plaintiff, a conductor of one of defendant’s street railroad cars, to recover the sum of fifty dollars concededly deposited by him with defendant as security for the faithful performance of his services and the payment of all moneys which should come into his hands to defendant’s use. The contract of employment was in writing, executed by plaintiff, and among other things provided “ 6. As it is understood that defalcations in the payment of moneys collected for fares can generally only be detected by means of persons from time to time employed by the company to act as detectives, and who make their report to the company of such defalcations, and because of the difficulty of ascertaining the precise amount of any embezzlement or defalcation, or of any damage occasioned by any remissness, negligence, dishonesty and incompetence on the part of the conductor, it is agreed that the report of the detective to the company, or to any party or parties by whom such detective may be employed at any and all times, and on any and all trips, as to the number of passengers carried on any trip of any car of which the conductor, is conductor, shall be final and conclusive evidence of any fact stated in the report made by said detective.” “ 7. And it is therefore mutually agreed that upon the occurrence of any such neglect, embezzlement or defalcation, evidenced by any such report, or otherwise,' whereby the company has suffered any loss or damage by reason of any neglect, carelessness, dishonesty of the conductor, said company shall forthwith be authorized without notice to the conductor, to retain the said sum of fifty dollars so deposited by the conductor,. together with the conductor’s wages for the current week, to and for its own use and benefit as its liquidated damages and not by way of penalty or otherwise."

Upon the trial, evidence was given by five detectives in the employ of defendant to the effect that upon several occasions the plaintiff had failed to register fares received. The time tickets returned by the plaintiff to the company on the days in question, showing the number of fares accounted -for, were identified by the plaintiff and received in evidence for defendant. The reports of the detectives were offered in evidence and excluded under exception, the justice holding that as matter of law they were not conclusive upon the plaintiff, and the jury was instructed that it was for them to determine upon the evidence whether the plaintiff had actually failed to register and account for the fares as alleged, thereby incurring the forfeiture herein before referred to.

In this the justice erred. Under the contract of employment the reports of the detectives were conclusivé upon plaintiff. Gallagher v. Christopher & Tenth Sts. Railway Co. 14 Daly, 366 ; 13 St. Rep. 80. The evidence shows that the plaintiff was able to read and write, and no claim is made that he was prevented by any act or representation of the defendant from acquainting himself with the terms of the contract which he signed. No defence against its provisions is thus presented by his failure to read it. Hill v. S, B. & N. Y. R. R. Co., 73 N. Y. 353, and cases cited. Schmeider v. Kingsley et al., 55 St. Rep. 689. The presumption is that he did read it before execution. Belger v. Dinsmore, 51 N. Y. 166 ; Steers v. Liverpool, N. Y. & P. S. S. Co., 57 N. Y. 1 ; Ballon v. Karl, 33 Am. St. 881, 888.

Moreover the retention by the defendant of the sum deposited, in the case at bar, was not to be regarded as a penalty. It was intended as a provision for uncertain damages. In the case of such a character the actual loss to the defendant may greatly exceed the amount of the specific peculations which could be proven. Birdsall v. Twenty-third St. R. R. Co. 8 Daly, 419 ; Schmeider v. Kingsley et al. supra.

The judgment appealed from should, for the error above referred to, be reversed and a new trial ordered, with costs to the appellant abide the event.


author: Fitsimons, J.

text:
    Adolph Heymen, App’lt, v. Louis Smadbeck, Resp’t.

      (New York City Court, General Term,

      Filed January 18, 1894.)

    Iktebpleaiier—Right.
    The right to an interpleader is not established where two persons are not claiming the same thing.
    Appeal from an order granting a motion for an interpleader.

      Otto Irving Wise, for app’lt; Edwin L. Kalish, for resp’t.
   Fitsimons, J.

The plaintiff’s cause of action is based upon an award. The person whom to interplead (one Meier) does not pretend or claim that he is entitled to said award, but claims that he is entitled to the debt upon which the award is predicated. Even the defendant’s moving affidavit shows this- to be so. It is, therefore, apparent that two persons are not claiming the same thing which is absolutely necessary before the right to an interpleader is established, The fact alleged by defendant that the said award is based upon irregular proceedings, and is therefore void, is proper and good by way of defense, and should be so pleaded in defendant’s answer, but does not entitle him to an interpleader. The defendant’s moving papers conclusively show that he id not subjected to a double demand for the same thing. The order must, therefore, be vacated, with costs.

Newburger, J-, concurs in result.


author: Fitzsimons, J.

text:
    James M. Cummings, Resp’t, v. Henry Rosenberg, App’lt.

      (New York City Court, General Term,

      Filed January 18, 1894.)

    Lease—Mortgage Foreclosure.
    Where a decree in foreclosure provides for possession by the purchaser on production of the referee’s deed, a lessee may surrender the premises without demanding such production, and thereby determine his liability.
    Appeal from a judgment in favor of plaintiff.

      Wolf Kohn & TJllman for app’lt.; A. G. N. Vermilye, for resp’t,
   Fitzsimons, J.

The defendant rented for the term of one year from May 1, 1892, premises No. 125 West 127th street in this city from the plaintiff; on December 13, 1892, after due proceedings, a decree was entered in a foreclosure action in which the plaintiff and defendant were defendants and the demised premises, the foreclosed premises. Said decree provided that the purchaser at the foreclosure sale be let into possession of the premises upon production of the referee’s deed. The premises were sold and the referee’s deed delivered February 17, 1893. The purchaser through his agent demanded and received the keys of said premises the same or next day from defendant. The plaintiff commenced this action for the rent due for the months commencing November 1, 1892, and ending May 1, 1893, and judgment was rendered in her favor for the rent so claimed. Upon the delivery to him of the referee’s deed the grantee in said deed became the owner of the premises in question. The evidence shows that said purchaser demanded possession of said premises on February 18, 1893. Another defendant surrendered them to him on that day by delivering up the keys. Therefore there was a surrender and acceptance of the demised premises, consequently a cancellation and termination of the lease mentioned and if it was not for the fact that the pleadings admitted that the rent was payable monthly in advance, the plaintiff would only be entitled to rent up to February 18, 1893, but under the agreement to pay monthly in advance the plaintiff is entitled to recover for the month of February as well as January, 1893, and November and December, 1892. It was error for the trial justice to find that he was also entitled to rent for March and April, 1893. The judgment rendered must be accordingly reduced $140.00 being the amount of rent for said two months. The defendant was not required to demand from the purchaser a production of the referee’s deed before he could surrender the premises. He had a right to do so if he chose, upon the demand of the purchaser; nor was it necessary that the report of the referee upon the foreclosure sale should have been confirmed. Such procedure would have been proper but was not necessary. The judgment herein is reduced to $380.00 and interest thereon and costs and allowances on said principal and interest of 5 per cent, and as so modified is affirmed without costs. The pleadings are hereby amended so as to conform to the proof submitted.

Newburger and McCarthy, JJ., concur.


text:
    Frederick Conway, Resp’t, v. Charles G. Barber, et al., App’lts.

      (New York City Court, General Term,

      Filed January 18, 1894.)

    Compromise—Payment under protest.
    A receipt in full, under protest, on payment of a sum less than is claimed to be due, does not estop from recovering amount actually due.
    Appeal from a judgment in favor of plaintiff.

      Hemsen & Parsons, for app’lts; Stewart & Macklin, for resp’t.
   Fitzsimons, J.

The only exception taken is found at folio 86 of the case on appeal. It cannot avail appellant because the conversation objected to was communicated to one of the defendants and he made answer thereto, folio 36, it was therefore admissible. The plaintiff according to his testimony was entitled to commissions upon the coal sold by him, as to the alleged settlement claimed by defendants, that claim is disputed by the plaintiff. He says that he accepted the $42 paid him under protest. Under these circumstances the fact that he signed a receipt in full for all commission and defendant’s contention that his commission amounted only to $42 does not preclude him from recovering the sum due him. The verdict is amply sustained by the evidence and is not contrary to law and is therefore affirmed, with costs.

Hewburger and McCarthy, JJ., concur.


author: McCarthy, J.

text:
    Joseph Birnbaum, an Infant, by Guardian, etc., Resp’t, v. Samuel Lord et al., App’lts.

      (New York City Court, General Term,

      Filed January 18, 1894.)

    Witness—Impeachment.
    The minutes of a former trial, where a witness testified that plaintiff swore to a certain state of facts thereon, are admissible to impeach him.
    Appeal from a judgment in favor of plaintiff.

      Henry Tomkins, for app’lts; Edward v. Stone, for resp’t.
   McCarthy, J.

This is an appeal from a judgment entered upon the verdict of a jury, awarding the plaintiff $250 damages for personal injuries caused by negligence, and from the order denying defendant’s motion for a new trial. This involves a question of fact and while the evidence is not very strong, yet it is sufficient to require the question of negligence to be submitted to the jury. There was sufficient evidence as to the ownership of wagon and agency of driver to have forced defendant to contradict same, Seaman v. Koehler, 122 N. Y., 646 ; 33 St. Rep., 729. The evidence of Stone was admissible and relevent as well also the minutes of the former trial, which were offered for the purpose of impeaching the witness Tompkins who had just shown that on the last trial the boy Birnbaum had sworn to a certain state of facts. These minutes were in the possession and control of the witness Tompkins and admitted to be correct. They were proper then to prove that the boy did not swear to the facts as testified to by Tompkins. The case was properly submitted to the jury and we find no error. Judgment is therefore affirmed, with costs.

Hewburger, J., concurs.


author: McCarthy, J. Newburger, J.,

text:
    Arlando Marine, Resp’t, v. Simon Peyser et al., Applts.
    (New York City Court, General Term,,

      Filed, January 18, 1894.)

    1. Appeal—Direction of verdict.
    A case must be clear and certain in order to sustain a direction of a verdict by the court.
    3. Bills and Notes—Diversion.
    Where a note is wrongfully diverted from its purpose, the party suing upon it is bound to show himself a bona fide possessor.
    3. Same—Amount of recovery.
    In case of diversion, the holder can recover only to the extent of the value he paid for it, and not even for that sum if he had notice.
    Appeal from a judgment entered upon a verdict directed by the court.

      Fromme Brothers for app’lts, Ormiston & Dorsett, for resp’t.
   McCarthy, J.

This is an appeal by the defendants Peyser, Eisenberg, Wolfe from a judgment rendered against them in favor of plaintiff upon a verdict given by direction of the court. The action is brought to recover upon a promissory note of $1,000.00 and interest and the complaint alleges in substance the making of the note by Peyser and delivery thereof by him to one Dempsey and Smith, named as defendants herein, and their delivery thereof to Eisenberg and by him to Wolfe, .and thereafter by mesne endorsements to plaintiff. The action was defended by Peyser, Eisenberg and Wolfe, and their answers in substance admit the making of the note, but put in issue the other material allegations of the complaint. They allege that the note was given without consideration and deny that is was endorsed and delivered by Dempsey and Smith to Eisenberg, and then by him to Wolfe, but allege that the note was purely an accomodation note, and the ■endorsements purely accomodation endorsements, with the use of said note restricted to a special purpose, to wit, to enable Dempsey and Smith to procure discount thereof to raise money wherewith to be enabled to carry on certain work and for no other purpose. But that after procuring the note and endorsements in this way, Dempsey and Smith diverted the same fraudulently from the purpose for which it was given, and passed the same in payment ■of or as security for a precedent indebtedness of them to the plaintiff, of all of which plaintiff had knowledge. On the trial these appellants claimed and were conceded the affirmative and established the following facts. That Dempsey and Smith were contractors and had contracted to do certain store work on buildings in which the appellants were interested, and upon performing such work in the manner provided for in agreement, Exhibit A, between them and Peyser would* be entitled to certain payments and at certain times and under certain conditions. That at the time of the giving of the note in suit there was nothing due or payable to Dempsey and Smith, they not having done their work and not able to prosecute the same by reason of their finan■cial embarrassment, and that admitting their inability, and without •being entitled to any payment they requested and “ begged ” the note in suit, and some cash upon their promise that they would raise money on the note and thus be enabled to prosecute the work. That upon the express understanding "that the note was thus to be used, solely for the purpose of enabling "Dempsey and Smith to raise money on it, the note and endorsements were given. That instead oE using the note for such agreed purposes, Dempsey and Smith fraudulently diverted the same ana gave it for an old debt to the plaintiff. It further appeared that the note was endorsed by Eisenberg and Wolfe before its delivery to Dempsey and Smith. On cross examination of Wolfe the plaintiff offered in evidence Exhibit B which was an agreement upon the part of the defendant Wolfe to endorse notes specified in the original agreement with Dempsey and Smith, but in no wise altered the conditions of the said original agreement, still holding Dempsey and Smith to their performance of the contract, .and even requiring them to furnish a bond for such faithful performance. And this agreement established beyond doubt corroboration of defendants contention that Dempsey and Smith were not doing their work. The plaintiff offered no evidence whatever, and moved for a direction iu his favor upon the ground of this last mentioned agreement to endorse notes, but which simply required additional endorsement when Dempsey and Smith became entitled to a payment. No proof in contravention of defendants testimony was offered, nor did the plaintiff attempt to show that he was a bona fide bolder. The court granted the motion and directed the verdict, to -which exception was taken, as also to the refusal of the court to grant defendants’ request to go to the jury.

We think the trial justice erred in directing a verdict in this case. A case must be clear and certain in order to sustain a direction of a verdict by the court. It is easy to move for such direction and in the hurry, excitement and mass of evidence received at the trial, the justice relying on his own recollection, must also depend considerably on the statement of counsel as to the facts presented. It is therefore dangerous for counsel to urge a direction, unless the case is clear and unquestionable. For, when the facts are uncertain or there is a conflict in the evidence, the question must be submitted to the jury. Potts v. Mayer, 74 N. Y. 595 ; and this seems clearly so in the case at bar. There was sufficient evidence of the cause, manner, condition and purpose for which the note was given and of its diversion therefrom and the application to another and entirely different purpose to have put the plaintiff to the proof of his good faith and that he was a bona fide holder for value before maturity or without notice and in such a case the burden is always on the plaintiff. See Hickerson v. Ruger, 76 N. Y. 279, 282 ; Farmers and Citizens' National Bank v. Noxon, 45 N. Y. 762, 765 ; the law in such a case as this is fully discussed by Ruger, C. J., in The Canajoharie National Bank v. Diefendorf, 123 N. Y. 191, 202, 204. 205, 206 ; 33 St. Rep. 389. At the evidence stood it was shown that the plaintiff received it for a back debt and did not release or relinquish any legal right or security he had and that shortly after he had notice of the conditions and purpose for which the note was given and therefore the plaintiff was not entitled to recover. Allen, J., in Comstock v. Hier, 73 N. Y. 273, says: “ When a bill or note is void, in its creation, or has been unduly obtained, or has been wrongfully diverted from its purposes, and fraudulently negotiated the party suing on it is bound to show himself a bona fide possessor. The affirmative.is with the plaintiff in an action upon such a note, to prove a clear legal title as against the parties to the instrument. Woodhull v. Holmes, 10 Johns. 231. One who receives it after due, or with notice of the circumstances under and purposes for which it was made, although he pays a valuable consideration is not a bona fide holder, entitled to recover thereon. One who receives it before due and without notice or knowledge of any fraud in its inception or transfer, but for a precedent debt, and without parting with value or any valuable consideration, does not acquire a valid title to the note or bill, but takes it subject to all its infirmities, precisely as if he had taken it after dishonor or with knowledge of all the circumstances affecting its validity. See also Atlantic National Bank of New York v. Franklin, 55 N. Y. 235. The evidence of an action being brought against these defendants by the New England Brown Stone Company was material on the question of the bona fides of the plaintiff and should have been received. It could not be set up a defence of the pending of another action because it was not between the same parties but seems to us, could be raised under the issues of bona fides. Under all the circumstances, it was the duty of the court, to submit the questions to the jury in order that they might determine whether the note was diverted, as the defendants alleged and if so, to what extent the plaintiff had paid value for it. For only to that extent could the plaintiff recover and not for that even, if the defendants could affect him with notice. For these reasons, the judgment should be reversed and new trial granted with costs' to the appellant to abide the event.

Fitzsimons, P. J., concurs.

Newburger, J.,

dissenting. This action is brought on a promissory note made by the defendant Peyser to the order of Dempsey and Smith, and endorsed by them and the defendants Eisenberg and Wolfe and by the Malone Stone Company, and held by the plaintiff. The defendants Peyser and Eisenberg put in separate answers which admitted the making and endorsing of the note, but alleged that the said note was obtained by Dempsey and Smith and that they fraudulently diverted the same. Upon the trial, the defendants held the affirmative, and at the close of their testimony, plaintiffs’ counsel moved for the direction of a verdict in his favor, and the motion was granted and a verdict directed accordingly, and this appeal is taken from the judgment entered upon said verdict and from the order denying defendants’ motion for a new trial. The evidence closely shows that the note was given and endorsed pursuant to the terms of a contract between the defendant Peyser and Dempsey and Smith, which contract was for certain labor to be performed and materials to be furnished by Dempsey and Smith to the defendant Peyser in the building of certain houses in this city, and the services so rendered and materials furnished was to be paid in certain installments. The note was given as required by the terms of the contract and the claim that Peyser was induced to make the note, by the promise that the work that might prove defective should be remedied was not borne out by the testimony, nor would it warrant this court in holding it to be a diversion of the note in suit. The trial justice was justified in directing a verdict for the plaintiff. There are no exceptions ,in the case that would warrant us in disturbing the rulings of the trial justice.

Judgment and order appealed from affirmed, with costs.


text:
    Benjamin G. Sanford, Resp’t, v. American District Telegraph Company, App’lt.

      (New York City Court, General Term,

      Filed January 19, 1894.)

    Master and Servant—Relation.
    A messenger, sent by a district telegraph company in response to a call from one of its boxes, is the agent of the company, for whose negligence it is liable.
    Appeal from a judgment in favor of plaintiff.

      George E. Bearons and Bush Taggart, for app’lt; McIntyre & Settell, for resp’t.
   Fitzsimons, J.

The defendant is a common carrier and as such must carry out every contract assigned by it, except where prevented from so doing by the act of God or the common enemy. The question in this case is, did the defendant contract to deliver the plaintiff’s money to his bank for deposit. If so, then in my opinion the judgment herein should be sustained. The defendant has distributed throughout the city about 30,000 call boxes. Some of them are placed in private places others in public places. The one which plaintiff used was situated in the Continental National Bank, and so far as the manager of the messenger department of defendant knows, (fol. 55) it might be in a public place in said bank (see also fol. 74.) In such cases, when, from the call-box is sent word for a messenger to defendant's office, one is sent and lie performs the duty required from him by the caller without first returning to said office, and such is the instructions to such messenger-boy by defendant, (fol. 55.) Such messenger is then the agent of the defendant for the services required and his act is the act of the defendant. His carelessness is its fault for which it is liable. The fact that the defendant had a contract with the Continental National Bank does not concern plaintiff unless his dealings with the defendant were had with reference to such contract which is not the case here. There is ample evidence showing that the boy who undertook to carry defendant’s money to his bank, was one of defendant’s messengers and as above held, its agent, and that he lost the money entrusted to him by his negligence is also apparent and the defendant’s liability for such negligence for the sum of money lost follows. Finding no error the judgment must be affirmed, with costs.

Newburger, J., concurs in result.


text:
    Benjamin F. Romaine et al., Resp’ts, v. Thomas T. Brewster, App’lt.

      (New York City Court, General Term,

      Filed January 18,1894.)

    Pleadings—Counterclaim. •,
    Where the subject of the action is the recovery of certain rent under the terms of a written contract, a claim to recover damages by reason of the breach of such contract is a proper subject of counterclaim in such action.
    Appeal from a judgment in favor of plaintiffs.

      Davison & Chapman, for app’it; Herman W. Schnitz, for resp’ts.
   McCarthy, J.

This action is brought to recove the rent, for the months of August and September, of a flat or apartment, on the top floor of an apartment house, in the city of New York, known as the “Lyndhurst.” The allegations of the answer and counterclaim, which are conclusive as to the facts for the purposes of this agreement, show that the plaintiffs failed to promptly repair and care for certain parts of the building entirely within their care and control as landlords, and not leased to any particular tenant. There were frequent overflows and leakages from a large tank on the. roof down into and which caused the apartment to become and remain so damp and unhealthful that the defendant was obliged to vacate, which he did on or about the 12th day of July, 1893, i. e. there was constructive eviction as of this date. Owing to the unhealthful condition of the flat, defendant’s wife became seriously ill, and the defendant suffered damages in consequence thereof, as specifically alleged to wit.: .expenses of medical attendance and drugs, loss of service, etc. He was also put to unexpected and otherwise unnecessary expense in finding another place of abode and removing his family and other household effects thereto. These damages' he sets up by way of counterclaim. The plaintiff has demurred to the counterclaim on the ground that it is not a cause of action arising out of the contract or transaction set forth as the foundation of the plaintiff’s claim, to wit: “the recovery of rent.” It is to be noted that the constructive eviction occurred before the rent sued for became due. By the demurrer the facts set out in the amended answer as constituting a counterclaim are conceded but claimed to be insufficient. The lease is in writing and under seal for the term of eleven and one-half months. The covenant for quiet enjoyment is to protect the lessee from the unlawful claims of third persons having a title paramount to the lessor, but such covenant, when fully written out, provides also for the protection of the lessee against the unlawful entry of the lessor himself. Consequently, where the. law implies, such a covenant from the character and terms of the instrument not containing any express engagement, the. scope of the implied guaranty should be equally extensive. And it need not be averred in the pleading that the grantor acted under a claim of title, but if the character of the act be such as is reasonable to show that the defendant acted upon such an assumption the action will be sustained. The Mayor, etc. of N. Y. v. Mabie, 13 N. Y. 156,157. And an eviction either actual or constructive is necessary to constitute a breach of this covenant. Boreel v. Lawton, 90 N. Y. 293, 296 ; Edgerton v. Page, 20 N. Y. 281. An eviction is defined to be when there has been an obstruction to the beneficial enjoyment of the premises and a diminution of the consideration of the contract by the act of the landlord, see McAdarn on Landlord and Tenant pp: 478, 479, and it is not necessary that there should be actual expulsion of the tenant from the premises. If the landlord commits or suffers acts to be committed which make it necessary for the tenant to remove,' this is equivalent to expulsion. See Tallman v. Murphy, 120 N. Y. 345. 362 ; 31 St. Rep. 483. If the law as thus far presented be correct, then the facts set out in the alleged counterclaim amount to a breach of the contract of letting and arose out of the contract or transaction set forth in the complaint and are connected with the subject of the action and therefore a proper subject for counter-claim. Grover, J. in Edgerton v. Page, 20 N. Y. at page 286, says: “Unless the acts of the defendant amount to a breach of the contract of letting, they are not connected with the subject of the action. In the case of the Mayor of New York v. Mabie, 13 N. Y. 151, it was held by this court, that a covenant for quiet enjoyment by the lessor was implied in a lease under seal for a term not exceeding three years, since as before the Revised Statutes, that this covenant was broken by an interference with possession by the lessor under a claim of right; consequently that damages sustained from such acts might be recovered in an action for rent.” See also Cook v. Soule, 56 N. Y. 422; § 501 of the Code of Civil Procedure. The counter claim must have such a relation to and connection with the subject of the action that it will be just and equitable that the controversy between the parties as to the matters alleged in the complaint and in the counterclaim should be settled in one action by one litigation and that the claim of one should be offset against or applied upon, the claim of the other. Carpenter v. Manhattan Life Ins. Co., 93 N. Y. 552, 556, 557. Here the subject of the action is the recovery of certain rent under the terms of a written contract and the counterclaim is to recover damages by reason of the breach of said contract. The cases cited by the respondent have been carefully examined and do not support his contentions but rather sustain the law presented here. In those cases the defendant either held over and thus waived all objection or the tenant was in possession of the premises during the whole of the term and therefore there was no abandonment or constructive eviction or breach of the covenant of quiet enjoyment and that any damages which the defendant may have suffered could not be under the contract which was the subject of the action, but rather against the plaintiff as trespasser or wrongdoer. The facts here, however, are entirely different. For these reasons the judgment sustaining demurrer and dismissing defendant’s counterclaim should be reversed and the demurrer overruled with costs.

FrrzsnroNs and Neivburger, JJ.. concur.


text:
    Jacques Reich, App’lt, v. Lorenz Reich, Resp’t.

      (New York City Court, General Term,

      Filed January 18, 1894.)

    Payment—Application.
    In the case the debtor fails to elect upon which claim the payment shall apply, the creditor may select the claim.
    Appeal from a judgment in favor of defendant.

      John L. Wilhie for app’lt; Abram Kling for resp’t
   Fitzsimons, J.

The defendant had an undoubted right to elect which note he chose to pay, but I fail to find in the printed case on appeal any evidence that he exercised that right. In that event the plaintiff had the right to select either note for payment and seemingly he chose the note of November 28th, 1890, and also compelled payment of the interest thereon before he delivered it up to defendant. The fact that plaintiff signed a receipt stating that he received $1,000.00 on the note of June 6th, 1891 is not conclusive against him. He claimed that he intended to insert the note of'November 28th, 1890 but by mistake inserted the note of June 6th, 1891. It seems to us that it was for the jury to say whether or not the defendant directed the plaintiff to receive the $1,000.00 paid in payment of the June ’91 or whether or not the plaintiff of his own volition selected that note for payment The question thus presented was a question of fact for the jury to determine and not a question of law for the learned trial justice to decide, therefore in our judgment it was error for him to direct a verdict for defendadt Judgment reversed and a new trial ordered with costs to appellant to abide event of action.

McCarthy, J., concurs.


author: Van Wyck, P. J.

text:
    Walter C. Rollins, Resp’t, v. Matthew Griffin, App’lt.

      (New York City Court, General Term,

      Filed February 8, 1894.)

    Evidence—Good character.
    In an action to recover for the keep and training of a colt, the admission of evidence as to plaintiff's general reputation as a trainer of thoroughbred horses and as to his honesty in that respect, is reversible error.
    Appeal by defendant from judgment entered on verdict returned by jury for plaintiff.

      & A. & D. J. Noyes, for app’lt; S. D. Duffy, for resp’t.
   Van Wyck, P. J.

The plaintiff sues to recover for the keep and training of the unnamed Spendthrift colt belonging to defendant. The defendant’s contention was, that it was further agreed that plaintiff was to enter and start the colt in races, and that he had violated his agreement to train and race the colt. The burden was upon plaintiff to show that he had kept and trained the colt, and the judge so charged; but as there was a conflict in the evidence as to the contract to enter and starts the colt in races, the judge charged that “if the jury believed it was a part of the contract that this horse should have been put in races that he might have evidenced his speed, and that owing to the carelessness, negligence or want of good faith on the part of the plaintiff, this was not done, he cannot recover.” The plaintiff’s case rested almost, if not entirely, upon his own testimony, and yet the verdict of the jury for him would not be disturbed, except for the admission over defendant’s objection and exception of testiomony to “ plaintiff’s general reputation as trainer of thoroughbred horses, and as to his honesty in that respect.” (Folio 143) Mr. Crickmore, the secretary of the Monmouth Park Association and the New York Jockey Club, was allowed to so testify against objection and exception ; (Folio 84), so too Mr. Kerwin, a gentleman who “ had raced horses in Canada and all over ” (folio 128) Mr. Knapp “ an owner of race horses ” (folio 137), Mr. Robinson, who “ owns racing stock” (folio 140) and Mr. Hyland, “ a trainer for twenty years, of thoroughbred horses ” (folio 143). The defendant did not by proof or offer of proof, put plaintiff’s character in issue by assailing his reputation as trainer of thoroughbred horses, or his honesty in that respect. The plaintiff’s proof of performance of his contract to keep and train the colt, although uncontradicted, depended entirely upon his own testimony, while the fact whether lie had been authorized to run the colt in races and had negligently failed to do so, was in dispute ; hence it was proper to submit the case to the jury. The uncontradicted testimony of the five witnesses as to plaintiff's unassailed reputation as a trainer of thoroughbred horses and his honesty in that respect must have influenced the jury in his favor. The general rule of evidence, in civil proceedings is that the character of a party is irrelevant except when the nature of the proceedings is such as to put the character in issue, and these exceptions usually arise in actions for breach of promise of marriage, libel and slander, and malicious prosecution,etc.,but a mere charge of fraud does not put character in evidence in actions ex conlractio, nor in actions ex delicto. Gough v. St. John, 16 Wend. 647 ; Fowler v. Aetna F. Ins. Co., 6 Cowen, 673. In the former, an action on the case for a fraudulent representation, the defendant was allowed at trial to introduce evidence of his good character, and Oowen, J. writing, says: “ Another conclusive ground for a new trial is the admission of testimony to good character.” And Chief Justice Nelson, concurring says : “ I concur in the opinion that a new trial should be granted on the ground that the judge erred in the admission of evidence of the character of the defendant,” and cites with approval, the Fowler case, supra, in which the charge was made by pleading and evidence that plaintiffs had been guilty of obtaining a fraudulent overvaluation of goods destroyed by fire, and they were allowed to introduce evidence of their good character for honesty, and the judge writing therein for reversal, says, “If such evidence is proper, then a person may screen himself from the punishment due to fraudulent conduct, till his character becomes bad. Such a rule of evidence would be extremely dangerous. Every man must be answerable for every improper act, and the character of every transaction must be ascertained by its own circumstances, and not by the character of the parties.” The admission of the evidence as to plaintiff’s general reputation as trainer of thoroughbred horses, and as to his honesty in that respect, was reversible error, and forces the reversal of the judgment and the granting of new trial with costs to appellant to abide the event.

Ehrlich, 0. J. and Fitzsimons, J., concur.


author: Van Wyck, J.

text:
    Walter H. Graef, Resp’t, v. Henry O. Bernard, App’lt.

      (New York City Court, General Term,

      Filed February 8, 1894.)

    Judgment—Vacation.
    The court has power, upon plaintiff’s application, to vacate a judgment entered by him in his own favor.
    Appeal by defendant from order made on plaintiff’s own motion to vacate j udgment entered in his favor against defendant

      F. A. Monford, for app’lt; Blumensliele & Iiirsch, for resp’t.
   Van Wyck, J.

The plaintiff moved to vacate a judgment entered by him against defendant, and the record shows that the defendant resident of this city, had made a general assignment for benefit of his creditors, but that plaintiff finding property belonging to him in Massachusetts, commenced action there upon same cause, and attached the defendant’s property there on the same day that this action was commenced. It seems that the judgment herein would bar his recovery in the action there, and with it would, of course, fall his rights under the attachment, and hence his application to vacate his judgment here, which was granted. The appellant cites Foote v. Lathrop, 41 N. Y., 358, as holding, “ When a judgment has once been regularly entered, no party has a legal right to demand upon motion to the court, that it be set aside.” Although in that case the application was made by a defendant against whom the judgment was entered, still the rule there laid down is true when the application, as here, is made by a party, who has entered a judgment in his own favor, for in neither case has the party a legal right to demand, but can only appeal to the sound discretion of the court for relief. The granting of plaintiff’s application to vacate his own judgment was within the power of the court and was not an abuse of its discretionary power. The power of the court to vacate a judgment entered by plaintiff in his own favor, upon his own application is undoubted. Hatch v. Cen. Nat. Bank, 78 N. Y., 487. There the plaintiff had entered judgment against the bank for $4,000 which the bank had paid, and the judgment was by plaintiff satisfied of record, and yet the plaintiff’s application to vacate this judgment was granted with leave to serve an amended complaint setting up an additional cause of action. And in Dietz v. Farish, 43 N. Y. Supr. 87, the defendant’s motion to vacate taxation of costs at his instance was granted, in order to enable him to move for an extra allowance, which latter motion in that court must be made before final costs are adjusted.

The order appealed from is affirmed, with $10 costs.

Ehrlich, 0. J., and Fitzsimons, J., concur.


text:
    Thomas S. Bainbridge, Resp’t, v. Albert Friedlander el al., App’lts.

      (New York City Court, General Term,

      Filed February 8, 1894.)

    Bill of particulars—Contract.
    In an action on contract, where the answer specifically denies plaintiff’s alleged performance, defendant should not be required to fusnish a bill of particulars of the times and manner of such non-performance.
    Appeal by defendants from order requiring them to furnish bill of particulars of non-performance by plaintiff of the contract he sues upon.

      Spiegelberg <& Wise, for app’lts; F. A. Burnham, for resp’t.
   Van Wyck, J.

The plaintiff’s alleged cause is for service rendered by him under a special agreement as salesman for defendants, and his complaint alleges: “ That plaintiff has duly performed (all the terms and conditions of said agreement upon his part to be done and performed,” while the defendants by answer, plead: “ The defendants deny that the plaintiff duly performed all the terms and conditions of said agreement upon his part to be done and performed, but, on the contrary, allege that plaintiff did not perform all the terms and conditions of said agreement, and neglected, failed and refused to discharge his duties as traveling salesman for these defendants.” This plea of defendants is nothing more than a specific denial of plaintiff’s allegation of performance by him, and if so much of defendants’ plea as follows the word “ performed ” was stricken out, still plaintiff would be forced to make proof of his allegation of performance. Considering defendants’ plea, therefore, with reference to its legal effect, which is simply that of denial, it cannot be properly regarded as setting up any such claim as to render it proper to require a bill of particulars. See Goddard, v. Pardee Medicine Co., 52 Hun, 85; 22 St. Rep. 540, which was followed and duly approved by this court in Strébell v. The J. E. Furber Co., 51 St. Rep. 163, and the case of Rafalshy v. Boehm, 20 N. Y. Supp. 374; 48 St. Rep. 641, does not in any way conflict with either of these decisions, for in the Rafalshy case the answer did not, by general or specific denial, put at issue plaintiff’s alleged performance, and in the opinion in that case, it is suggested that defendant’s plea was insufficient and frivolous, but as it was not so assailed, and plaintiff had only sought and secured at special term, a bill of particulars of an affirmative plea in the answer, it would not be disturbed at general term. But, as seen, the answer here specifically denies plaintiff’s alleged performance, hence defendants should not have been required to furnish a bill of particulars of the times and manner of plaintiff’s non-performance, and the order requiring him to do so should be reversed, with $10 costs.

Fitzsimons, J., concurs.


author: Ehrlich, C. J. Fitzsimons, J. (dissenting)

text:
    Lyman C. Vroman, App’lt, v. Houston, West Street and Pavonia Ferry Railroad Company, Resp’t.

      (New York City Court, General Term,

      Filed February 8, 1894.)

    Appeal—Dismissal op complaint.
    The complaint is properly dismissed, where, in an action for negligence, the company was guilt of no act of negligence and did nothing by means of which the plaintiff was injured.
    Appeal by plaintiff from judgment entered after the dismissal of the complaint at trial term.

      C. D. Lamb for app’lt; Couderl Brothers & J. Kling for resp’t.
   Ehrlich, C. J.

On the evening of June 13, 1892, the plaintiff with some friends boarded an open summer car of defendant y having steps running along upon the outside. The plaintiff stood for a time on the rear platform, smoking. As the car neared Forty-second street some people got out, and the plaintiff undertook to proceed along the side step to occupy one of the seats vacated. The change was voluntary on his part, and, while he was attempting to consummate it, his head was brought in contact with an elevated railroad column and badly injured. At the trial the complaint was dismissed, on motion of the defendant’s attorney, and we think the dismissal was right. The defendant was guilty of no act of negligence, and did nothing by means of which the plaintiff was injured. The defendant was not responsible for the presence of the elevated railroad columns nor for any injuries caused by them. The case resembles that of Murphy v. Ninth Avenue Railroad Company, 6 Mise. B. 298; 58 St. Bep., 140, in which it was held that the defendant, under similar circumstances, was not liable. The distinction between the rules decided in the cases cited by the appellant and that which governs this case is clearly laid down in the Murphy case; and for the reasons stated the judgment appealed from should be affirmed with costs.

Yan Wyck, J. concurs.

Fitzsimons, J. (dissenting)

In my judgment, it was error for the trial justice to dismiss the complaint in this case. It was a question of fact for the jury to determine whether or not the defendant was negligent and the plaintiff free from contributory negligence. It was the duty of defendant to run its road along a way which was not dangerous. The fact that the iron post against which plaintiff struck and was injured was erected by the E. B. B. subsequent to the time when defendant built its road would not justify defendant in continuing to use its road as far as its passengers are concerned if by so doing it became a dangerous thing to do. It should have prevented the E. B. B. from placing its pillars in a place where they would injure persons riding on defendant’s cars who prudently and carefully did so or else should have removed its rails farther away from such pillars, or so constructed the platforms on its cars as to permit its passengers to use them without harm from such dangerous things. This duty defendant owed its passengers. A failure to do so I think constituted negligence on defendant’s part because- of the length of time that said pillars and defendant’s road occupied their- present positions. Concerning the alleged contributory negligence of plaintiff ; the plaintiff had a right to' a seat in defendant’s car in fact it was his duty to take one as- soon as possible. When he boarded it all the seats were occupied he was compelled to stand on the rear platform, at the moment when a passenger having a' seat left the car, plaintiff exercised his right to have a seat by proceeding along the only passage way from the place where he stood to the vacated seat. Whether or not he did so in a careful or careless manner particularly in view of the facts above recited and in addition that it was night time and he was not familiar with that part of the defendant’s road, and that he had a right to assume that it was free and clear from all danger; was a question of fact for the jury to determine and not a question of law for the court to decide. For these reasons I think that the judgment should be reversed and a new trial ordered with costs to appellant to abide event.


text:
    John F. Schwann et al., Resp’ts, v. George W. Clark, App’lt.

      (New York City Court, General Term,

      Filed February 8, 1894.)

    Contract—Prompt shipment.
    Where a contract of sale requires the vendor to ship promptly by steamer ' in October, he is only under the duty to ship as early in October as the reasonableness of the trade and shipping facilities permit.
    Appeal from a judgment in favor of plaintiffs.

      Parsons, Shepard & Ogden, for app’lt; JJinrichs & Rudolph, for resp’ts.
   Fitzsimons, J.

The answer does not specifically set up as a defense the statute of frauds. Therefore, the benefits of that statute cannot avail defendant in the action. Crane v. Powell, 19 N. Y. Supp., 220 ; 46 St. Rep., 668. The contract of sale required plaintiffs to ship promptly by steamer in October. The evidence shows that the lead sold was on October 29th placed on board a vessel destined to sail for New York, and which did sail November 1st, two days subsequent. In my judgment, this was a sufficient compliance with the terms of said contract. The plaintiffs were only under the duty to ship as early in October as the reasonableness of the trade and shipping facilities permitted. Whether or not they did so in this case, was a question of fact for the jury to determine, which they did; deciding it in plaintiff’s favor, and their finding is conclusive. The testimony amply justifies it, and as the vessel sailed two days after the shipment it is quite evident that the plaintiffs selected a vessel that sailed within a reasonable time thereafter. Thus, doing all that the law required of them. Ledon v. Havemeyer, 121 N. Y., at page 185 ; 80 St. Rep. 754. The notice of the re-sale of the lead was more than reasonable as the testimony shows. We have examined the exceptions taken and find nothing in them that would justify a reversal of the judgment. Judgment is affirmed with costs.

All concur.


text:
    Mount Morris Bank, Resp't, v. Robert G. Lawson, App’lt.

      (New York City Court, General Term,

      Filed February 8, 1894.)

    1. Bills and notes—Alteration.
    A bona fide purchaser of a note can recover against a maker, who at the time of such making was liable thereon to the payee, even though the note after the delivery had been altered by adding “ with interest.”

      %. Same.
    But, in such case, he cannot recover the added interest.
    Appeal by defendant from judgment in favor of plaintiff.

      Goldfogle & Cohn, for app’lt; Alexander & Green, for resp’t.
   Van Wyck, J.

The action is against the defendant as the maker of the promissory note sued upon and which is set out in full in the complaint as follows :

“$1,500. New York, March 21, 1890.
Three months after date I promise to pay to the order of James Ritchie, fifteen hundred dollars at Mount Morris Bank, N. Y. city, with interest. Value received.
No. Due. Robert G. Lawson.”

The defendant specifically admits in his answer that he made and delivered the note, declared on in the complaint, to James Ritchie, the payee named therein, but he alleges that when he so made and delivered the same, it did not have the words “ with interest ” written thereon, and that he charges said Ritchie or some one by his direction with writing ” these words thereon after such delivery and without defendant’s knowledge or consent. This is a solemn admission by the defendant by his answer that he gave this note to Ritchie, the payee, for a valuable and legal consideration, fdr he does not in his answer allege that it was given without such consideration. This note declared or purports to be for “ value received ” and being set out in the complaint is sufficient allegation of consideration. Prindle v. Caruthers, 15 N. Y. 426, and being specifically admitted by his answer, the defendant had no right to attack on the trial, the validity of this note for want of consideration, or for any other cause, except for its unauthorized alteration, by adding “ with interest ” after it left his hands. So the judge was justified in ruling as matter of law at the trial and on the pleadings, that the defendant at the time he delivered the note, was liable to the payee thereof as upon a note given for valuable and legal consideration. And as plaintiff’s proof showed beyond question and without contradiction, that the bank plaintiff, had without notice of the alteration and before maturity duly discounted the note for one Ebert to whom Ritchie the payee, had duly endorsed the same, was not the j udge also justified in ruling that this defendant was liable to this bank as such bona fide purchaser, because defendant was not an accommodation maker or other surety, but the maker for valuable consideration, and without any defense as against the payee at the time that he delivered the note to him? Appellant’s contention is, that the bank, although such Iona fide holder, cannot recover against the maker for value, for even the principal sum, for which he was so liable to the payee, because the unauthorized addition of the words “ with interest ” was a material alteration of the note after he made and delivered the same. Appellant’s contention is made on the authority of the cases of Weyerhauser v. Dun, 100 N. Y. 154, and McGrath v. Clark, 56 N. Y. 34, but in both of these cases the party sought to be held,liable on the notes altered by adding the words “with interest,’ were accommodation endorsers and as such were sureties for the parties to whom they had delivered the same, and who, of course, never had a cause of action against such endorsers. In thaj Weyerhauser case the note after Griggs had endorsed, was altered by adding “with interest at ten per cent after maturity” (the note was made and payable in Indiana) and the judge writing says: “So far as Griggs is concerned, he stands simply as an accommodation endorser”; while in the McGrath case, Clark, the party sought to be charged, had endorsed a note payable to McGrath’s order and delivered the same to the maker who altered it by adding, “with interest” and delivered it to McGrath, so Clark’s was and accommodation endorsement, and he a mere surety, and in no way liable to the maker. Appellant’s counsel fails to call attention to any reported case in this state which holds that a bona fide purchaser of a note cannot recover against a maker or endorser for value, and who at the time of such making and endorsement, was liable on the note to the party for whom he made or endorsed and delivered the same, even though the note after delivery had been altered by adding “with interest”. Of course the maker of a note for value, which was after delivery altered by adding “with interest”, could not be held for such added interest, but he is liable to a bona fide purchaser for the amount for which he was originally lawfully liable to the payee from or through whom such purchaser buys the note. In the case of Susquehanna Valley Bank v. Loomis, 85 N. Y. 210, a draft had been drawn by the Plainfield bank on a Hew York bank for $25, which had been raised to $1,200, and afterwards cashed by plaintiff, and the judge writing says: “It must be conceded that the Plainfield Bank was at least entitled to have refunded to it (by the drawee who charged against it the full $1,200) the difference between the true sum for which the draft was issued, and that to which it had been altered”. And cites, with approval, as follows, the cases of Hall v. Fuller, 5 B. & C. 750, and Merchants Bank of N. Y. v. Exchange Bank of N. O. 16 La. 457. The action in the Hall case was assumpsit for money had and received by defendants (bankers) to the use of plaintiffs (merchants). It was shown that plaintiffs’ check of £3 upon defendants had been fraudulently raised to £200. and otherwise altered, and when presented, was paid and charged to plaintiffs. They sued to recover moneys deposited by them, and the bankers sought to retain for the amount so charged. It was contended by plaintiffs that they were entitled to the whole sum of £200, but the court ruled otherwise, saying, “the bankers have paid more than the order authorized them to do, for by that they were authorized to pay no more than £3, and the judgment was limited to excess. In the Merchants Bank case, it appeared that Bank of Mobile drew a draft of $213.50 upon plaintiff, which was altered to $5013.50, and then sold to defendant who sent it forward to plaintiff for collection, The plaintiff paid it and passed the full amount to credit of defendant. When plaintiff after-wards discovered the forgery, it sued defendant and defendant was held liable for the difference between the true sum and that to which the check had been altered. The note in the case at bar was at three months, and as the words “with interest” were added without defendant’s authority, and after he delivered the note, the judgment must be reduced by $22.50 the amount of the interest thus added, and as so reduced is affirmed with costs.

Ehrlich, C. J. and Fitzsimohs, J., concur.


author: Yah Wyck, J.

text:
    Patrick Cassidy et al., App’lt’s, v. Frederick Aldhous, Resp’t.

      (New York City Court, General Term,

      Filed February 8, 1894).

    Contract—Abandonment.
    Where the plaintiffs satisfied a mechanic’s lien on defendant’s promise to pay him §500 by note, and subsequently, upon defendant's refusal to deliver the note, reinstated their lien, it amounted to an abandonment of the contract by mutual consent.
    Appeal by plaintiffs from judgment of non-suit.

      T. G. Ennever, for app’lts ; W. E. Benjamin, for resp’t.
   Yah Wyck, J.

The • plaintiffs were non-suited at trial and their proof shows that on June 17, 1890, they filed a mechanic’s lien claiming $541.84, and in their notice of claim they certified, “that the name of the owner, against whose interest a lien is claimed, is Frederick Aldhous (this defendant) and that the name of the persons by whom claimants, (these plaintiffs) were employed, and to whom they furnished such materials, is the firm of Pearse & Thornton” that, the first time that plaintiffs or any one on their behalf ever interviewed this defendant, was on the day after the filing of the said lien when the salesman had an interview with him, and he then “agreed to pay plaintiffs $500 by note if they would take of the lien;” that thereupon on the following day they satisfied the lien of record. This amounted to a binding contract as between the plaintiffs and defendant, and if the plaintiffs had rested on their rights they could have recovered the $500 from him in the proper action. Plaintiffs’ salesman who negotiated with defendant in the matter says at folio 62, that the defendant said to him “you call here on Tuesday and we will settle that matter if the lien does not appear in Saturday’s Real Estate Record,” and that the lien did not appear in the Record, and at folio 63 this salesman says that “on the following Tuesday the defendant refused to give me the note which he had promised, stating that we might put the lien back, which he did and filed it.” When the defendant refused to deliver his note as agreed, the plaintiffs had an absolute right to rely upon the contract, and its breach, and to have sued him for $500, for where a payment is agreed to be made by note and such note is not given, the party entitled may sue for the amount without awaiting the expiration of the term for which the note was to be made. But plaintiffs instead of relying on their rights, elected to refile and reinstate their lien. By this refiling of the lien after the defendant had refused to deliver the note, the plaintiffs reinstated all of their rights under the lien and thus repossessed themselves of the rights which they had released as the consideration for defendant’s promise to pay by note; in other words they had consented to receive back from the defendant the entire consideration which they had parted with on the faith of his promise. This amounted to a failure of consideration and an abandonment of the contract by mutual consent. About one year thereafter and without any further negotiations or agreement with defendant, these plaintiffs commenced this action against him to recover the price of the sale and delivery to him of the very same labor and materials which they had claimed in th.eir notice of lien as sold and delivered to the firm of Pearse & Thornton, and served a bill of particulars of their claim in this action, consisting of twenty-five items agregating $540.30. When this action was first tried the plaintiffs recovered a verdict upon which judgment was entered, and from which defendant appealed, and on such appeal properly secured its reversal and a new trial on the ground that “ There was no evidence to go to the jury showing a sale and delivery of any goods to the defendant, or that Pearse & Thornton had any authority to act for defendant, and the motion to dismiss should: have been granted,’’ Cassidy v. Aldhous, 52 St. Rep. 940 ; 23 N. Y. Supp. 318. The bringing of this action one year after the plaintiffs had reinstated their lien and reclaimed and repossessed themselves of the consideration which they had parted with for defendant’s promise to deliver them a note for $500, confirms the conclusion that they had elected to abandon the contract by which he was to deliver the note. Before the new trial, ordered by the general term, was had, the plaintiffs sought and secured, at special ■term, and amendment of their complaint by adding to the third paragraph thereof the words: “That is to say, defendant agreed to give to plaintiffs his note for $500 in payment of said materials on condition that plaintiffs would cancel a certain mechanic’s lien etc., etc.” arid under this they were permitted to make proof as above stated that they had first filed the lien, and upon defendant’s promise to give them his nóte for $500, had cancelled same of record,\ and then upon his refusal to so deliver the note, they had refiled and reinstated the lien, and that they had about one year thereafter brought this action. They thus failed to show defendant’s liability on his promise to give the note for the release of their lien, which was an apparent encumbrance on his property and they also failed to show that defendant was liable as vendee of the goods sold and delivered, and hence were rightly non-suited at trial. Judgment of non-suit affirmed with costs.

Ehrlich, G. J., and Eitzsimons, J., concur.


text:
    Elias Abraham, Resp’t, v. John M. Mayer, App’lt.

      (New York City Court, General Term,

      Filed February 8, 1894.)

    1. Evidence—Presumption.
    Where the recital clause in a deed acknowledges the receipt of the consideration, the presumption is that the grantee duly so paid the same and is a purchaser for value.
    8. Deed—Title.
    A purchaser for value and without notice can transfer a good title even to one who purchases with notice of outstanding equities.
    3. Mortgage—Foreclosure—Parties.
    Where a subsequent grantee for value and without notice of a prior transfer of the premises by his grantor has his deed first recorded, the prior grantee is not a necessary party to the foreclosure of a mortgage then on such premises.
    4. Same—Constructive notice,
    In such case, the record of such prior deed would not be constructive notice of its existence.
    Appeal by defendant from judgment entered against Mm on findings by the court.

      Davis & Kaufman, for resp’t; Ashbel P. Fitch, for app’lt.
   Van Wyck, J.

The plaintiff sues to recover part of the purchase money paid by him to defendant upon the execution of a contract by which defendant agreed to sell to him a certain parcel of real estate m this city, on the ground that the defendant was and is unable to convey the land as agreed, in that the premises are encumbered, in addition to the encumbrances mentioned in the contract, by a deed of conveyance of the premises in question from one Emrich to one Glaffey, dated and acknowledged August 17, 1880, and recorded in the office of the register in Sew York city, on March 22, 1881, in Liber 1548 of Mortgages, page 310. The only question tried and to be reviewed is whether or not this deed and its record as above described, and under the facts as shown by the proof, renders plaintiff’s title to the property unmarketable. It appears that Emrich bought this property from one Parfitt in March, 1880, and gave him back a purchase money mortgage for $14,000, both of which we’re duly and immediately recorded; that Emrich conveyed the property, subject to this mortgage, to Gruggenheimer and Marks by deed dated and duly recorded in October, 1880 for expressed consideration of $16,250; that Gruggenheimer and Marks conveyed the same, subject to this mortgage, to one Algie, in consideration of $21,000 as expressed, and receipt of same acknowledged in the deed to him dated and duly recorded in December, 1880. When this deed to Algie was so recorded the chain of the record title to Algie’s immediate grantors was unbroken, and so Algie’s title was perfect and not open to assault from Glaffey, whose deed from Emrich was not recorded (if properly at all) until March, 1881, provided that Algie was a bona fide purchaser for value paid, and without notice of any unrecorded deed to Glaffey. From the recital and acknowledgment of receipt of the consideration of $21,000 in the deed as paid by Algie to his grantors, the legal assumption is that he duly so paid the same, and hence was a purchaser for value paid. The. record does not show that the slightest evidence was given to overcome this presumption, or that Algie had any notice whatever of Claffey’s unrecorded deed, although Claffey himself was a witness on the trial of this action, and he did not by evidence or suggestion even hint that Algie had had any notice of his deed or conveyance, or that he had not paid the full consideration of $21,000 expressed in his deed from Gruggenheimer and Marks, and moreover, Algie, who was also a witness on this trial testifies that he had never heard of Claffey or his deed of conveyance; that he took immediate possession of the property upon which the foundations had been built up to the basement, and thereafter he erected buildings thereon and continued in possession thereof until his interest was wiped out by the foreclosure of the Parfitt mortgage for $14,000. The proof was complete and overwhelming that Algie was a Iona fide purchaser of the property for value paid and without any notice whatever of Claffey’s deed of conveyance. This being so he had the legal equitable and record title to this property against all the world, and could convey such title to any one, even to persons, who purchased with notice of Claffey’s deed of conveyance, excepting to the original parties to the transaction. The court of appeals says in Clark v. McNeal, 114 N. Y., 287 ; 23 St. Rep., 249, “If the title to land having-passed through successive grantees and subject in the hands of each prior to outstanding equities, whether they are liens or incumbrances, or trusts or any other claims, comes to a purchaser for value and without notice, it is at once freed from the equities, and he not only takes a good title, but can transfer a good title, even to one who purchases with notice of the facts, as otherwise the bona fide purchaser could not get the market value of his property. He obtains a valid title, and with a single exception, the full power of disposition. This exception is that such title cannot be conveyed from the prior equities bade to a former owner who was charged zuith notice.” Such was the condition of Algie’s title and his rights thereunder as a bona fide purchaser for value and without notice in May, 1881, when Parfitt filed the lis pendens in his action to' foreclose his original purchase money mortgage for $14,000, and to which action Claffey was not made a party. The property was sold by the referee in this foreclosure action and by him conveyed for $62,000, to one Bedgoood and by him conveyed for'$75,000 to one Man, and by him conveyed to the defendant in this action for full value. The plaintiff’s contention is, that Claffey should have been made a party to this foreclosure suit, because at the time the lis pendens was filed, May 1881, he had on record in the register’s office an absolute deed of conveyance from Emrich dated August, 1880 and so recorded in the book of mortgages, in March, 1881, while the conveyance from Emrich to Gruggenheimer and Marks was dated and duly recorded in October, 1880, and the deed from them to Algie was dated and duly recorded in December, 1880. However, it is not necessary to make Claffey a party to the foreclosure suit. First, because at that time as shown by the proof, Algie was the sole absolute owner in fee of the property by bona fide purchase for value paid, and without notice of the existence of the Claffey deed which was not on record, when he took such title to the same, hence at that time only two persons had any right or title, either legal or equitable, to this property, the one being Parfitt, the mortgagee, who was the plaintiff, and the other Algie, the fee owner, who then had and could convey a good and clear title to the property, and he was duly made a defendant. The referee to sell in this foreclosure suit, could and did convey to Bedgood all the right and title of both Parfitt and Algie in this property which was the entire estate, the fee absolute and Bedgood conveyed the same to Man, who in turn conveyed to this defendant. Allowing that such recording of the Claffey deed in the Book of Mortgages, is of the same force as if it was duly recorded in the Book of Conveyances, it would not be constructive notice of its existence, because prior to such record his grantor had conveyed away the same property to Algie by deed which was duly recorded. The intending purchasers of land are only required to search in the register’s office against such grantor during the time that the record title remains in him, and such search made against Emrich, who was Claffey’s immediate grantor, and the grantor to Algie’s immediate grantors, would not disclose the existence of the deed from Emrich to Claffey, and no -further or other search was required of Parfitt, the original purchase money mortgagee from Emrich. It seems that the recording of Claffey’s deed of conveyance absolute in the Book of Mortgages and not in the Book of Conveyances, was not constructive notice to any one of its existence as it contains no clause of defeasance, and no instrument of defeasance was then or thereafter filed or recorded. See Gillig v. Maas, 28 N. Y. 215, in which the judge, writing says: “Our State provides for two sets of books; one for conveyances absolute in their terms, and not intended as mortgages ; and the other for such mortgages or securities. To record a mortgage, or a conveyance intended as a mortgage, or a security in the nature of a mortgage, in the Book of Conveyances absolute in their terms, would nor be a lawful record so as to be constructive notice to a subsequent assignee or purchaser in good faith.” The judgment is reversed and new trial granted with costs to appellant to abide event.

Eiiruich, C. J. and Fitzsimons, J. concur.


author: Yah Wyok, J.

text:
    William H. Martens, Resp’t, v. Burton Company, App’lt.

      (New York City Court, General Term,

      Filed February 8, 1894.)

      ■ Pleadings—Answer—Sham.
    In an action on a note, an answer, which denies the endorsement and delivery of such note by the payee to the plaintiff, cannot be stricken out as sham, at least in the absence of proof by affidavit that it was actually so endorsed.
    Appeal by defendant from order striking out its answer as sham.

      R. McO. Robinson, for app’lt, C. F. Holm, for resp’t.
   Yah Wyok, J.

The complaint alleges the making and delivery by defendant of its promissory note to the order of J. J. Robinson & Co., its endorsement by said Robinson & Co. and by one Kane, and its delivery thereafter to plaintiff. The answer, among other denials, denies its endorsement and delivery by J. J. Robinson & Co. the payees. This is a denial of a material allegation of the complaint and would force proof by plaintiff that the payees, had endorsed the note. Assuming, but not conceding that upon proof by affidavit, that the note was duly endorsed by the payees, the answer could be stricken out as sham; yet as the record does not show that any such proof was made on this motion, the order striking out this answer as sham must reversed with .$10 costs. i

Ehrlich, C. J. and Fitzsimons, J. concur.


text:
    Bernhard Stirn, App’lt, v. Hoffman House Company, Resp’t.

      (New York City Court, General Term,

      Filed February 8, 1894.)

    Judgment—Counterclaim: against assignor.
    In an action on an assigned claim, no affirmative judgment can he had on a counterclaim against the assignor.
    Appeal from a judgment in favor of the defendant.

      Qliarles Strauss, for app’lt, John Delahunty, for resp’t.
   Fitzsimons, J.

The plaintiff’s assignor, L. Somborn and Company, were engaged in the business of selling a brand of champagne known as “Grand Seb.” They employed one Edward K. Somborn to sell said wine as a general salesman. In that capacity he sold to defendant wines and agreed to allow it a discount of 10 per cent, upon the value of wines purchased. The amount of such discounts, it appears was $320.13. These facts were testified to by the salesman and defendant’s president, and were uncontradicted, and for that sum defendant set up a counterclaim- This action was brought to recover the value of wines sold $232.00 with interest. Judgment was rendered in defendant’s favor upon said counterclaim, over and above the amount claimed by plaintiff for $67.31 and from said judgment this appeal is taken. The undisturbed testimony shows that Edward K. Somborn was the general salesman of plaintiffs’ assignor. As such, his agreement to allow a discount and fixing prices was binding and in law was the act of the principal. The trial justice was justified, in view of the undisputed evidence of defendant to direct a verdict in defendant’s favor upon the counterclaim up to the amount claimed in the complaint but not beyond it. It was error therefore for him to render an affirmative judgment in defendant’s favor for $67.31 because plaintiff is an assignee. The judgment must therefore be modified by reducing it $67.31 and as so modified is affirmed with costs.

Ehrlich, J. concurs.


text:
    Rachel Chatzkelson, Resp’t, v. The State of California Steamship Company, Limited, App’lt.

      (New York City Court, General Term,

      Filed, February 8, 1894.)

    Appeal—Dismissal of complaint.
    In an action against a steamship company for loss of baggage, dismissal of the complaint is error, where the fact that the seller of the ticket was the agent of, or that his act was ratified by, the defendant, or that the ship was owned or operated by him, was not established by sufficient evidence.
    Appeal Lom judgment in favor of plaintiff.
    Seward, Guthrie & Morawetz for app’lt; Mashbir & Cukor for resp’t.
   Fitzsimons, J.

The plaintiff claimed that she took passage from Hamburg to New York by means of transit furnished by defendant, and that she purchased the passage ticket from one Mendel whom she said was the defendant’s agent in Hamburg, and that her baggage was lost by defendants. The jury rendered a verdict in her favor for three hundred dollars ($300.00). The defendant moved at the close of the case to dismiss the complaint on the ground that the plaintiff failed to show that the defendant made any contract with her for passage from Hamburg, which motion was denied. In denying the motion to dismiss the complaint upon the ground just stated the learned trial justice erred because there is no testimony in the case (except the mere say so of plaintiff’s child who was at the time of the taking of said passage only eleven years of age) which establishes that Mendel was the agent of the defendant in Hamburg or that he acted for it, in any capacity or that any of his acts were ratified by defendant. Nor is there any testimony proving that any ship, railroad or other means of transit used by the plaintiff on her passage from Hamburg to New York, was owned or controlled or managed or operated by defendant. Under these circumstances no cause of action was established against the defendant. And the complaint should have been dismissed. Judgment is reversed, a new trial ordered with costs to appellant to abide the event of action.

All concur.


author: Ehrlich, O. J.

text:
    Fred. Adee, Resp’t, v. Moses R. Crow, App’lt.

      (New York City Court, General Term,

      Filed February 8,1894.)

    Bills and notes—Fictitious.
    Where the defendant executes and delivers his note to a third person, who delivers it to plaintiff the defense that plaintiff did business under a firm name without having a partner is unavailable.
    Appeal from judgment entered on verdict in favor of plaintiff. ATbertus Perry, for app’lt; Stephen H. Yeaman, for resp’t.
   Ehrlich, O. J.

The action is on a promissory note, made by defendant to the order.of one John Tilley, and by him delivered to the plaintiff. The sole ground urged against the verdict is, that the plaintiff did business under the name and style of “ Fred. Adee & Co.,” without having a partner. The defense was not pleaded, and the plaintiff was not called upon to prove that he had secured the right to use the firm name under existing statutes. But aside from this, the defense was unavailable against the note in suit. Gay v. Seibold, 97 N. Y. 475. The appeal is destitute of merit and the judgment must be affirmed, with costs.

All concur.


text:
    Harlan Smith, Resp’t, v. Peter Wagner, App’lt.

      (New York City Court, General Term,

      Filed February 8, 1894.)

    Landlobd and tenant—Relation.
    The payment of rent and the remaining in possession of the premises, with the owner’s consent, create, between owner and occupant, the relation of landlord and tenant and renders the latter liable for the reasonable value of the premises.
    Appeal from a judgment in favor of plaintiff.

      William, Allen, for app’lt; S. V. F. Cooper, for resp’t.
   Fitzsimons, J.

The plaintiff herein certainly was entitled to judgment April, 1892, rent amounting to $75, cause of defendant’s answer as to the rent for the month of March, he is also entitled to it for it appears that in November, 1891, he received rent for that month from defendant, and that defendant remained in possession of the store with the landlord’s consent until May 1, 1893. This agreement created between the plaintiff and defendant the relation of landlord and tenant and made defendant liable to plaintiff for the reasonable value of the premises occupied by him which the testimony shows is $75 for the April month. Judgment is therefore affirmed, with costs.

All concur.


author: Ei-irlich, 0. J.

text:
    Meyer Guggenheim, App’lt, v. Samuel Goldberger, Resp't.

      (New York City Court, General Term,

      Filed February 8, 1894.)

    Pleadings—Denial.
    ■ The words “for value” are not a necessary averment in a complaint, and a failure to deny them is immaterial.
    Appeal from .judgment entered in favor of defendant.

      Erdman, Levy <& Mayer, for app’lt; II. Fox, for resp’t.
   Ei-irlich, 0. J.

The words “for value" was not a necessary averment in the complaint, for the legal presumption supplied the inference, hence the failure to deny was in that respect immaterial, and the facts alleged show that there was no intention to admit a transfer for value. Indeed, the issue was, that the check was given at the solicitation and for the accommodation of the plaintiff, without any consideration, and the jury so found. Upon such an issue and finding, the cases cited by the appellant have no relevancy, and the judgment must be affirmed, with costs.

Fitzsimons, J., concurs.


author: Ehrlich, C. J.

text:
    Louis Curtis, App’lt, v. Charles R. Ritzman, Resp’t.

      (New York City Court, General Term,

      Filed February 8, 1894.)

    Appeal—Proper relief.
    The general term of the same court may, on appeal make the order which ought to have been made below.
    Appeal from interlocutory judgment entered on order overruling demurrer.

      J. George Flammer, for app’lt; M F. Bullard, for resp’t.
   Ehrlich, C. J.

The gravance of the complaint is, that the

defendant let the west side of a store to the plaintiff, for sale of furniture, carpets, etc., and agreed that the store on the east side, ‘should not be rented, or used for the sale of the same kind of goods.” As breach, the complaint alleges, that the defendant subsequently rented the east store to one Harrington “without restricting” him as agreed, and that Harrington used the store to sell goods of the same character, as sold by the plaintiff, whereby “the plaintiff was unable to sell his goods as he had theretofore done,’ to his damage $2,000. There is no pretence, that the defendant used the place for the rival business or knowingly let it therefor, but merely, that he failed to “restrict” Harrington, who injured him, etc. The damages recoverable for such a breach would be nominal merely, in the absence of a claim for special damages, and there is no such claim. Sedgwick on Dam. 6th. Ed. p. 731 note. Parsons v. Sutton, 66 N. Y. 92. If the plaintiff has any action, it is a technical one merely, and if the court below, had sustained the demurrer, a reversal would not have been granted in such a case, to enable the plaintiff to recover nominal damages only. Patten v. Hamilton, 12 Ind. 256 ; Hudspeth v. Allen, 26 Id. 165. The general term of the same court may on appeal, make the order which ought to have been made below. The court at special term overruled the demurrer and permitted the defendant to answer over, on payment of $215 costs. But, why prolong a litigation and compel the defendant to pay $16 costs in a six cent case, where that is the limit of the recovery. We think the interlocutory judgment and order, ought to be reversed without costs,—except as hereinafter mentioned,— and the demurrer sustained with liberty to the plaintiff to amend his complaint by pleading special damages or any other material allegation, on paying the disbursements incurred on this appeal.

Fitzsimons, J., concurs.


text:
    George Maitland, Resp’t, v. Central Gas and Electric Fixture Company, App’lt.

      (New York City Court, General Term,

      Filed February 8,1894.)

    CONSTITUTIONAL LAW—PATENT.
    The New York city courts cannot determine the validity or invalidity of a patent.
    Appeal from judgment entered on a decision at special term, sustaining the demurrer of plaintiff to the fifth paragraph of defendant’s amended answer.
    Birdseye, Lloyd & Bayliss, for app.’lt; A. Walker Oils, for resp’t.
   Ehrlich, C. J.

The appeal seems to present the single tion whether the defendant can question in this court the legality of the patent under which the plaintiff claims. The court below, properly held, that this court could not determine the validity or invalidity of the patent, as that question must be determined in the Federal court. The demurrer as to this point was therefore properly sustained. As to the counterclaim, the court overruled the demurrer, because the defendant had set up in its answer, a counterclaim for moneys paid by mistake and without any consideration, and which were, in the nature of things, recoverable back. As the plaintiff does not appeal, this part of the judgment need not be considered. The defendant appeals from that portion of the order, which sustained the demurrer to the fifth paragraph of the amended answer, and as the order in respect thereto, was properly made, it must be affirmed, with costs.

All concur. _


author: Ehrlich, G. J.

text:
    August T. Hirt et. al., Resp’ts, v. Passie H. Vincent, Impleaded, etc., App’lt.

      (New York City Court, General Term,

      Filed February 8,1894.)
    Bills and Notes—Bona Fide holder.
    A party who discharges a lien on real estate in consideration of a note thereby becomes a bona fide holder thereof.
    Appeal by defendant from judgment entered on verdict of jury in favor of the plaintiff.

      Johnston & Johnston, for app’lt; J. P. Campbell, for resp’ts.
   Ehrlich, G. J.

The plaintiff discharged a lien which he had on certain real estate in consideration of the note in suit, and thereby became a bona fide holder of said note, and there was no defense to the same in his hands. The proofs as to the diligence in serving the notice of protest went to the jury, who found for the plaintiff on evidence satisfactorily sustaining the conclusion reached.

There is no merit in the appeal, and the judgment must be affirmed, with costs.

All concur.


text:
    Joseph H. Hoffmann, App’lt, v. Clara Kanze, Resp’t.

      (New York City Court, General Term,

      Filed February 8, 1894.)

    Executors, etc.—Funeral expenses.
    Funeral expenses for the burial of the husband are collectible from the widow, if the funeral was given on her credit.
    Appeal from judgment entered on verdict of jury in favor of defendant.

      George A. Baker, for app’lt; Langbein Brothers and Langbein, for resp’t.
   Ehrlich, C. J.

The rule lis setted that funeral expenses for the burial of the husband are collectible from the widow if the funeral was given on her credit. Lucas v. Hessen, 17 Abb. N. C. 271. The funeral was ordered January 7,1893, and the defendant did not administer until the 9th of November following; so that in the nature of things the defendant individually was the person to whom the credit was given, for the estate of the deceased at that time had no legal representative. The charge of the trial judge was to the effect, that if at the time of ordering the goods there was no contract as to who should pay for them, the plaintiff had a right to claim payment out of the estate, and could not claim it as against the defendant. This was a clear error. He should have charged the jury, that the defendant, who gave the order for the goods, was personally liable therefor, unless there was a special understanding by the plaintiff not to look to her individually, but to look to the estate of the husband after she had been appointed to represent it. For these reasons the judgment appealed from must be reversed with costs to the appellants to abide the event and a new trial ordered.

All concur. .