text:
    The People, Resp’ts, v. Thomas F. Hannon, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 4, 1891.)

    Municipal corporations—Aldérman not a police official within Laws 1890, chap. 163.
    The defendant was indicted under chap. 163, Laws of 1890, requiring that police officials shall not be interested in the sale, etc., of liquor and that those in office shall make and file an oath that they are not so interested. Lefendant was an alderman of the city of Hudson and by its charter a member of the common council, chap. 468 of 1872, and by said charter said common council has power to appoint and remove policemen. Held, that an alderman was not a “police official” within the meaning of the above statute and therefore need not file the oath thereby required.
    Appeal from a judgment of the court of sessions of Columbia county, overruling a demurrer to the indictment against the defendant, and from a judgment of conviction of the defendant on such indictment.

      Mark Duntz (.L. F. Longley, of counsel), for app’lt; A. V. S. Cochran, district attorney, for resp’ts.
   Mayham, J.

The indictment in this case is substantially in form and substance like the indictment in the People v. Henry L. Gregg, decided at the same time, except that in the caselast cited Gregg was acting as mayor, and the defendant herein is charged as acting as alderman of one of the wards in the city of Hudson.

The indictment in both cases proceeds upon the theory that the accused comes within the designation in § 1 of chapter 163, Laws of 1890, of police commissioners, police inspector, captain, sergeant, roundsman, patrolman, or other police officer or subordinate of police department.

Section 19 and § 29 of the charter give the common council the power to appoint and remove policemen; and § 27 makes the aldermen of this city members of the common council; but none of these provisions in terms make the aldermen policemen of the city, or bring them within any of the police officials specified in § 1, chapter 163 of the Laws of 1890. And the defendant was not, therefore, required to take the oath prescribed in § 3 of that act.

"With that view of the case it is unnecessary for us to consider the grave constitutional question raised by the appellant on this appeal.

For most of the reasons stated in the opinion in People v. Gregg, supra, which is argued by the learned district attorney with this case, we think the decision of the court of sessions overruling the demurrer and convicting the defendant apply to this case.

The order overruling the demurrer and judgment of conviction and sentence on the indictment must be reversed, and the defendant must have judgment on the demurrer.

Learned, P. J., and Landon, J., concur.


source: Caselaw Access Project

author: Landon, J.

license: Public Domain

text:
    Abel A. Crosby et al., Resp’ts, v. The Pres’t, etc., of the Delaware & Hudson Canal Co., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 4, 1891.)

    Conversion—Bailment or sale.
    In an action for conversion the main question was whether the vendors of plaintiffs were bailees or vendees of the property in question. They were engaged in building boats for defendant, which furnished the lumber therefor and declined to furnish it for any other purpose. At first the lumber was paid for in cash, but subsequently it was the custom to allow the price thereof on the price of the boats when completed. Certain lumber was delivered to them with a bill of items, which they sold to plaintiffs. Seld, that whether the transaction between defendant and plaintiffs’ vendors was a bailment or sale was a question for the jury.
    (Following Crosby v. Pres’t, etc., D. & H. C. Co., 119 N. Y., 334; 39 N. Y. State Rep., 453.)
    Appeal from a judgment in favor of the plaintiffs entered upon the verdict of a jury at the Ulster county circuit, and also from the order denying a motion made upon the minutes for a new trial
    The action was for damages for the alleged wrongful taking oy the defendant of a quantity of lumber, which G. & E. Hamden had sold the plaintiffs in part payment of a past indebtedness. The defendant had furnished the lumber to the Harndens to be used in building two canal boats for the defendant. The main question is whether the Harndens were the vendees or bailees of the lumber.
    The Harndens were boat builders at Aligerville on the line of the defendant’s canal. They had never built a boat for anyone else than the defendant, but were repairers of other boats. The defendant kept lumber specially adapted for building the boats it required, not for sale generally, but only for use by boat builders, in building boats for defendant.
    The Harndens built a boat for the defendant in 1878, and bought some of the lumber from defendant, paying cash for it. Afterwards they ordered and received lumber from the defendant and built boats for it, using the lumber upon such boats and giving defendant receipts for its price as part payment upon theprice of the boats. The defendant had declined to furnish the Harndens with lumber except for use in constructing boats for defendant. On the 8th of November, 1882, the defendant wrote to the Harndens as follows : “ If you wish to build two boats during the coming winter for delivery upon opening of navigation next spring, the company will take them at $1,200 each, subject to inspection and approval by the company inspector.” The Harndens accepted the proposition, and November 21st following sent to defendant’s superintendent a written order: “Please send us pine 2x7 4,000 feet,” etc., specifying other kinds and quantities. The defendant forwarded the lumber by boat to the Harndens with following bill:
    “ Bondout, N. Y, Nov. 24, 1882.
    “Messrs. Gr. & B. Hamden:
    “ To The Del. & Hudson Canal Co., Dr.

    “1284 feet oak planed a $53. $68.05,” and two other items, total $412.77.
    The parts of the bill in italics were printed, the rest written.
    When the Harndens received the lumber they intended to use it in building the two boats for the defendant, but they became insolvent, did not build the boats, and sold the lumber to the plaintiffs, from whose possession the defendant subsequently took it without permission.

      F. L. Westbrook, for app’lt; A L. Stebbins, for resp’ts.
   Landon, J.

The court of appeals reviewing this case as it appeared from a former trial held that it was a question for the jury whether the transaction was a bailment or a sale. 119 N. Y., 334; 29 N. Y. State Rep., 453. The case now presents the same facts which the court of appeals commented upon, some as indicating a bailment, others as indicating a sale. There are a few additional facts, but some tend to support the one conclusion, and others the other.

Wc discover no error in the rulings of the trial court to the prejudice of the defendant.

Judgment affirmed, with costs.

Learned, P. J., and Mayham, J., concur.


text:
    David H. Harvey and Charles G. Eddy, Resp’ts, v. Edward M. Walker, Impl’d, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 4, 1891.)

      1. Pdeadino—Answer.
    A denial in a verified answer made upon information and belief is good.
    35. Same.
    The complaint in the first paragraph alleged that defendants were co-partners, and in each alleged that the goods were sold to them as copartners. The answer denied each and every allegation in each paragraph. Held, that a partnership in their purchase, if not general, was an essential part of plaintiffs’ case, and the allegation thereof was covered by the denial.
    3. Partnership—Evidence.
    Evidence that thé person with whom the negotiations for sale were made represented that another was his partner is inadmissible as against such other person.
    Appeal from a judgment of the Rensselaer county court, affirming a judgment of the justice’s court of the city of Troy in favor of the plaintiffs.
    The plaintiffs, in a verified complaint, set forth three causes of action against the defendants for goods sold and delivered to the defendants. These causes of action are separately set forth in three separate paragraphs, numbered first, second and third. The first paragraph alleges that the defendants were copartners, etc., and that the plaintiffs sold and delivered goods to the defendants as copartners, etc. The second alleges that Hiram T.Whited sold and delivered to defendants as copartners certain other goods, etc., and assigned the demand to plaintiffs. The third alleges that Truman E. Ingalls sold and delivered other goods to defendants as copartners, etc., and assigned the demand to plaintiffs.
    The defendants answered separately, and denied upon information and belief each and every allegation contained in the pretended first cause of action set forth in said complaint, and in like form separately as to the second and third causes of action. Each answer was verified in the usual form.
    After the issue was joined, plaintiffs’ counsel asked the court to strike out the answer of both defendants and treat them as nullities, upon the ground that the answers were not in the form permitted by the Code, since the defendants could not deny upon information and belief matters within their personal knowledge, and that the verification of such an answer is contrary to the Code. The justice reserved his decision upon the motion, but afterwards treated the answers as nullities, and upon the evidence taken upon the trial rendered judgment for the plaintiff. Edward M. Walker appeals.

      H. D. Bailey, for app’lt; J. A. Cipperly, for resp’ts.
   Landon, J.

A denial in a verified answer made upon information and belief is good. Bennett v. Leeds Mfg. Co., 110 N. Y., 150; 16 N. Y. State Rep., 841. The plaintiff insists that the denial went to the allegations contained in the first cause of action, and that the allegation of the partnership of the defendants was not any allegation requisite to the cause of action, and, therefore, is not covered by the denial. The answer evidently goes to the allegations of the paragraphs of the complaint as numbered, and thus covers the allegation of partnership. Besides the allegation of each paragraph of the complaint is that the goods were sold to the defendants as partners, and thus a partnership in their purchase, if not general, was an essential part of plaintiffs’ case. The court erred, therefore, in disregarding the answers, and that error requires a reversal, unless the plaintiffs proved their case by evidence admissible notwithstanding the objections thereto interposed by the defendants.

The main question of fact seems to have been whether the appellant, Edward M. Walker, was a partner of his codefendant. Charles Gr. Eddy testified that he sold the goods to C. F. Walker, and thatC. F. Walker, prior to the sale, told him that Edward M. Walker was his partner. This was objected to as inadmissible and hearsay as against Edward M. Walker. It clearly was so, and it was error to overrule the objection and receive the testimony. There was abundant evidence that C. F. Walker used the name of 0. F. Walker & Co., and represented that Edward M. Walker was his partner. This evidence was received, notwithstanding appellant’s objections. It was not admissible. ' There is slight, if any, evidence competent against Edward M. Walker showing that he was such partner.

The judgment against him should be reversed, with costs.

Learned, P. J., and Mayham, J., concur.


author: Landon, J. Learned, P. J. (dissenting.)

text:
    John Morehead and Cornelius Rhoades, App’lts, v. Charles Brown, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed February 4, 1891.)

    Verdict—Inaccuracy in written.
    In an action for penalties, the jury returned a written verdict: “ We finde the defende $100." And on being required to correct it, returned a verdict: “We finde the defende of two offences fifty dollars each." The justice received the latter verdict and entered judgment for $100. Held> no error; that the inaccuracies in the verdict did not prejudice the defendant.
    (Learned, P. J., dissents.)
    Appeal from judgment of county court, reversing judgment of justice’s court The facts appear fully in the dissenting opinion.

      E. Dayton, for appl’ts; C. M. Woolsey (Howard Chipp, of counsel), for resp’t.
   Landon, J.

I think the judgment of the justice’s court was right upon the merits, and the errors complained of did not prejudice the defendant Code Civ. Pro., § 3063.

The verdict was in writing, and accords with the illiteracy which is often an accepted test of the impartiality of jurors. The practice of requiring a verdict in writing is not prescribed by law, and if technical inaccuracy is to be made a pretext for settipg it aside, cannot be too vigorously condemned.

I advise a reversal of the judgment of the county court,

Mayham, J., concurs.

Learned, P. J. (dissenting.)

This is an appeal from a judgment of the county court reversing a judgment recovered by plaintiff before a justice of the peace for $100 and costs.

The action was brought to recover penalties amounting to $200 for four alleged violations of § 14 of chap. 628, Laws of 1857; Excise law.

The alleged violations were the selling of hard cider without a license.

The action is penal and the defendant is entitled to have the matter tried in a due and legal manner.

The evidence given against defendant’s objection by the witness Tanner, that his brother-in-law and Elmendorf fought together when they got back in the woods, was plainly improper. It was not shown that they fought because they were intoxicated; and it was no evidence of the intoxicating quality of the cidet.

The evidence that other complaints had been made about defendant was improper.

The jury brought in a written verdict: “ We finde the defiende $100.” Plaintiff’s counsel requested that the jury retire and make their verdict more explicit They attempted to state their verdict and said, “We find the defendant of two offenses and supposed when we expressed the amount the court would know we meant two offenses.” Defendant’s counsel requested that the written verdict be entered and the jury discharged. The court directed the jury to retire and correct their verdict They did so and brought in: “ We finde the defiende of two offenses fifty dollars each." I think that this was not such a verdict as justified the rendition of a judgment of $100 thereon in favor of the plaintiff. I can of course conjecture what the jury meant And I understand the power of courts to correct verdicts in respect to form.

But I think this verdict too defective to stand. It seems as if the jury might have thought that they could fine the defendant But whatever were their thoughts they did not succeed in expressing them in a manner to justify a judgment in favor of plaintiff.

The judgment of the county court should be affirmed, with costs.

Judgment of county court reversed and that of justice’s court affirmed, with costs.


text:
    John S. Maxwell, App’lt, v. Sarah E. Lowther, Impl’d, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed February 4, 1891.)

    Husband and wife—Creditors cannot compel payment for voluntary SERVICES OF HUSBAND.
    While a wife’s agreement to pay her husband for his services in aid of her separate business may be enforced, yet she cannot be required to requite in cash for the benefit of his creditors the services which he has voluntarily rendered in such business.
    Appeal from a judgment in favor of defendant entered in Montgomery county upon the report of a referee.

      The plaintiff recovered a judgment November 21, 1885, against John R. Lowther for $1,496. Execution issued thereon was returned unsatisfied. The plaintiff then brought this action against John R. Lowther and Sarah E., his wife, under § 1871, Code Civ. Pro., to compel the discovery of money due from Mrs. Lowther to her husband, and the application thereof to the satisfaction of said judgment. The referee before whom the action was tried found that from January, 1884, to July, 1886, Mrs. Lowther and James E. Eouner, as partners, carried on the business of building in the city of New York, and that Mr. Lowther, the judgment debtor, during all that time rendered services for his wife in the care and management of the partnership business, which, assuming there had been any express obligation on the part of Mrs. Lowther to pay for them, were reasonably worth fifteen hundred dollars; that there was no such contract; the services were voluntarily rendered under no agreement whatever for compensation; that Mrs. Lowther during that time defrayed the expenses of her family, including those of her husband; that the partnership business was not profitable, and no advantage or profit accrued to Mrs. Lowther upon account of her husband’s services. The referee held that the wife did not become indebted to the husband upon account of such services, and directed judgment for the defendant,

      E. J. Maxwell, for app’It; Spink & Martin, for resp’t.
   Landon, J.

It has been held that the wife’s to pay her husband wages for his services in aid of her separate business could be enforced, Kingman v. Frank, S3 Hun, 471, but that in the absence of an express agreement it could not be. Lynnv. Smith, 35 Hun, 275. We have no doubt of the correctness of the latter decision. Whatever power the legislature may have conferred upon the wife to make contracts with her husband, see Hendricks v. Isaacs, 117 N. Y., 411; 27 N. Y. State Rep., 449; Suau v. Caffe, 33 id., 506, it has not required her to requite in cash for the benefit of her husband’s creditors the services which her husband has voluntarily rendered her in aid of her separate estate or business solely upon considerations springing out of the marriage relation. Between members of the same family the law will not imply a promise to pay for services rendered. Williams v. Hutchinson, 3 N. Y., 312.

Judgment affirmed, with costs.

Learned, P. J., and Mayham, J., concur.


text:
    Levi Duel, Resp’t, v. Byron H. Sykes and Michael Hayes, Appl’ts.

      Supreme Court, General Term, Third Department,

      Filed February 4, 1891.)

    1. Justices’ Court—Jurisdiction—Adjournments.
    When both parties appear issue must be joined before adjournment, unless they otherwise agree, or the defendant refuses or neglects to plead.
    2. Same.
    On the return day of a summons both parties appeared before the justice, and the plaintiff, without pleading, asked the justice to hold the case open until he should obtain counsel, to which defendants objected. The justice adjourned the case for two days. Held, that by the adjournment the justice lost jurisdiction.
    Appeal from a judgment of the Washington county court, affirming a judgment of a justice of the peace in favor of the plaintiff.
    The action was to recover the price of a calf which the defendants agreed to purchase of the plaintiff and pay him therefor three and one-half cents per pound upon delivery.

      J. B. McCormick, for appl’ts; James White, for resp’t.
   Landon, J.

Upon the return of the summons the defendants specially appeared by counsel and took objections to the jurisdiction. The plaintiff, without pleading, asked the justice to hold the case open until he could obtain counsel, twenty-five miles away. Defendants objected, urging that 'the court had no power to hold the case open or adjourn before issue joined. The court held the case open or adjourned it for two days. The defendants upon the adjourned day objected that the case was discontinued' by the adjournment. The objection was overruled, issue was joined and trial had. The defendants now urge that the case was discontinued by the adjournment, and that the court had no further jurisdiction of it. Section 2934, Code Civil Procedure, provides that “ where both parties appear upon the return of the summons, an issue must be joined before an adjournment is had, except when the defendant neglects or refuses to plead.”

Section 2959 provides that: “At the time of the return of a summons or of joinder of issue without process, but at no other time, the justice may, in his discretion and upon his own motion, adjourn the trial of the action not more than eight days, unless the defendant has been arrested; in which case no such adjournment shall be made.”

We think these-two sections must be construed so as to harmonize with each other, and hence conclude that when both parties appear, issue must be joined before adjournment, unless they otherwise agree, or the defendant refuses or neglects to plead. The section last cited is in title 4 under the caption “ Proceedings between the joinder-of issue and the trial,” thus indicating no intention to make an exception to the rule prescribed in § 2934, which is in the preceding title of the same chapter. We are obliged to reverse the judgment. By the unauthorized adjournment the justice lost jurisdiction. Pede v. Andrews, 32 Barb., 445.

Judgment reversed, with costs.

Learned, P. J., and Mayham, J., concur.


author: Daniels, J.

text:
    Lena Levy, Adm’rx, App’lt, v. The Dry Dock, East Broadway & Battery R. R. Co., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. NEGMeEITCE—Stbeet baileoads.
    Plaintiff’s intestate, a cliild about four years old, was run over by one of defendant’s cars. The evidence tended to show that the driver of the car, which was a one-horse car, had his face turned towards the inside of the car, and that he did not turn to look forward until attracted by the cries of people on the sidewalks. Held, that the jury would be warranted from, these facts in finding that the driver was guilty of want of care in the management of the car.
    2. Same—Contributory negligence.
    The child’s father was on the sidewalk talking to another person, but facing in the direction of the child, and it appeared that he ran to her assistance as the horse was about reaching her. Held, sufficient to warrant a jury in finding that the child was sufficiently guarded by the observation, of her father to avoid the charge of negligence on his part, and that a dismissal of the complaint was error.
    Appeal from a judgment on the dismissal of the complaint at the circuit

      Christopher Fine, for app’lt; John M. Scribner, for resp’t.
   Daniels, J.

This action was commenced by Lewis Levy, as administrator of the estate of his daughter, Sarah Levy, who was run over by a car of the defendant on Bast Broadway on the 30th of August, 1885, and from the injuries then received she soon afterwards died. The administrator died after the commencement of the action, and it was then revived in favor of the plaintiff, as administratrix, who is the mother of the intestate.

The injury was received by the child near six o’clock on a Sunday afternoon while the car was moving in an easterly direction at an ordinary rate of speed. The child who was killed resided with her parents on the northerly side of the street between Pike and Bulgers streets. She was then three years and ten months, old, and from the evidence appears to have been as intelligent and observing as healthy children usually are at that age. She had passed over to the southerly side of the street, and was in the act. of returning, and near the northerly rail of the defendant’s railway, when she was knocked down by the horse and run over by the forward wheel of the car, and was under the hind wheel when she was removed by her father, who was near his residence and in the street at the time, facing southwardly.

The witnesses agreed in their evidence that the driver of the, car, which was a one horse car, had his face turned towards the inside of the car as the horse approached the line on which the child undertook to cross the track, and that she was then from twenty to thirty feet from the horse.. At least the jury could very consistently from the evidence which was given find these to be the facts, and that he did not turn his head, to be able to look forward, until he was admonished by the halloing of persons on the sidewalk, who had observed the child and that she was in immediate danger from the proximity to her of the horse that was drawing the car. From these facts the jury would also be warranted in finding that there was a want of proper care on the part of the driver in the management and progress of the car, which was then moving on a down grade towards Butgers street. And in the disposition of this appeal the court is at liberty to believe that they would have found that fact in the plaintiff's favor, as she is entitled to every favorable inference supported by the proof on account of her complaint being dismissed and the case withheld from the jury.

The still more critical inquiry remains, whether the evidence was such as to enable the child, or more properly her parents, to escape the imputation of negligence, or want of care on their part. The child was stated by her mother to have possessed uncommon intelligence for her age, and to have been smart like a girl of ten years of age. And if that was a correct description of her, the jury might or might not have considered her careless, in trying to cross the track when the horse was so near to her. It would not necessarily be negligent, for a girl of ten years could very well cross the track safely when she was twenty feet away from the horse as she reached the first rail. But they would not be obliged to accept that evidence as strictly correct. For the age of the child, and the evidence given by other witnesses who knew her, indicated the fact to be that she was very much as other children áre at the same age, and in the possession of sound health. And if she was, then negligence could not necessarily be attributed to her at her age for attempting to cross the track as she did. But it might be negligent for her parents to permit her to be in the street where she would be in danger from the cars which passed this point after frequently running intervals, Kunz v. City of Troy, 104 N. Y., 344; 5 N. Y. State Rep., 642; but it was not necessarily so under the evidence given at the trial. For the jury could very well conclude that her father was looking after her, although he was talking to another person on the northerly sidewalk of the street This person testified that Levy was near the hall to his residence, with his back towards it, looking towards the witness. And if that statement is correct, then he was in a position at the same time in which he would be able to watch, and in a condition to assist the movements of the child. And that he was probably looking after her is confirmed by the fact that he ran to her assistance as the horse was about reaching her, or had pushed her over. But his effort was unavailing, for the wheel of the car was about passing over her as he reached and endeavored to arrest the progress of the horse. There was further evidence also given by two of the witnesses that there was a boy with her, who was apparently five or six years old, as she reached the track, but who ran away after she commenced to cross it. Others saw no boy, but on the evidence of the two who testified they saw him with this child, it was for the jury to decide which was right, and if the boy was present, how far that might indicate the observance of care on the part of the father of the child, who was standing on the walk and facing in the direction from which the child must take in her attempt to re-cross the street.

With this evidence before the court, the case was not one for a dismissal. It was for the jury to consider and decide it, and not for the court. Birkelt v. Knickerbocker Ice Co., 110 N. Y., 504, 506, 507; 18 N. Y. State Rep., 130; Hylands. Yonkers R. R. Co., 22 N. Y. State Rep., 100; Murphy v. Orr, 96 N. Y., 14. The driver had reason to believe that children would be in the street ón a fine Sunday afternoon, as that is proved to have been, and he should have made a reasonable outlook for and to avoid them. That the jury had the evidence from which they could find he did not do, and that the child herself was sufficiently guarded by the observation and oversight of her íathér to avoid the charge of negligence on his part, and that she would have escaped all danger of injury if the driver had been as watchful as the law required him to be in the progress of his car. Upon both of these contested matters of fact the case was for the jury, and should not have-been dismissed by the court.

The judgment should be reversed and a new trial ordered, with costs to the plaintiff to abide the result.

Van Brunt, P. J., and Brady, J., concur.


author: Van Brunt, P. J.

text:
    Royal E. Deane et al., Resp’ts, v. John A. Loucks, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. Default—Opening.
    A default will not necessarily be opened upon the presentation of an affidavit of merits where there are no suspicious circumstances; but the-applicant must not only show a reasonable ground for opening the default, but the burden is upon him to establish Ms good faith otherwise than simply by an affidavit of merits.
    3. Bar—Breach of contract.
    The action was for work, labor and services, and the answer set up a counterclaim for breach of the contract by reason of defective materials- and workmanship. On motion to open a default, Held, that a recovery upon a complaint of this description would be a bar to an action for damages because of defective work or materials, and hence that the default should be opened to allow defendant to prove his counterclaim on-terms.
    Appeal from order denying motion to open default

      Brunner & Bennett, for app’lt; E. C. Stone, for resp’ts.
   Van Brunt, P. J.

We think that the learned counsel for the-appellant is entirely mistaken in supposing that the doctrine has ever been established that when an affidavit of merits is presented and there are no suspicious circumstances connected with the application a default will necessarily be opened. Although decisions to that effect may be found, yet still the practice of the-court has been against so loose a procedure as this; and the applicant must not only show a reasonable ground for opening the default, but the burden upon him is to establish his good faith otherwise than simply by an affidavit of merits.

If there were nothing but this in the case at bar we would think that the order appealed from was correct. But upon an inspection of the record it appears that the learned judge was influenced largely in coming to the conclusion at which he arrived by the consideration that although the default was held, the defendant could maintain an action for the same cause desired to be set up in the counterclaim in the proposed answer. The action was brought to recover for work, labor and services and for material furnished, which was alleged to be of the reasonable value of a. certain sum. The defense sought to be interposed was that the work and labor was done and the materials furnished under a written agreement containing certain stipulations and that such stipulations were not complied with, and in consequence of the defective workmanship and defective materials the defendant had suffered damage to a large amount.

It is well settled that a recovery upon a complaint of this description is a bar to any action for damages because of defective work or materials. See Gates v. Preston, 41 N. Y., 113, in which it was held that a judgment by default in favor of a physician for professional services is a bar to any action by the defendant against him for malpractice in the performance of such services. And the principle there laid down is recognized in Goebel v. Iffla, 111 N. Y., 171; 19 N. Y. State Rep., 105. The reason of the rule is manifest, because a recovery by the plaintiff upon the ground that the services were worth the amount alleged in the complaint is absolutely inconsistent with the claim that the services were worthless and were detrimental to the defendant. ,

So, in the case at bar, if the plaintiffs’ work, labor and materials were worth the amount set out in the complaint, then the defendant could have no cause of action because of defective materials and workmenship.

We think, therefore, that the default should have been opened in order to enable the defendant to put in his counterclaim, upon payment of the costs of all proceedings before notice'of trial, the disbursements in the entry of judgment and ten dollars costs of the motion.

The order should, therefore, be reversed, with ten dollars costs and disbursements, and the default opened upon the conditions above mentioned, the costs to be offset against each other so far as practicable.

Bartlett, and Barrett, JJ., concur.


text:
    Charles C. Leary, Adm’r, et al., Pl’ffs, v. Henrietta Hutton et al., Def'ts.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Lease—Covenants fob benewal.
    A lease of land for years contained a covenant that upon its expiration the lessor would pay for the buildings upon the land or grant a renewal lease containing Úke covenants. Two renewals were made, each lease containing the same provisions as to payment for the buildings and that the renewal lease should be similar to the present one. Held, that but one renewal was provided for and that the lessees were not entitled to have a covenant for renewal inserted in the new lease.

      (Muhlenbrinck v. Pooler, 40 Hun, 536; 1 N. Y. State Rep., 333, followed.)
    Submission of controversy upon agreed facts.

      E. L. Fancher, for pl’ffs; J. L. Cadwalader, for def’ts.
   Van Brunt, P. J.

A large number of facts are inserted in the submission which it is riot necessary to advert to in the view which we take of one of the questions presented upon this submission.

The question in difference is whether, as is claimed by the plaintiffs, on the expiration of a lease dated July 15, 1874, for fourteen years the plaintiff was entitled to have inserted in the renewal lease a covenant such as is contained in the former lease requiring the lessors prior to the expiration of the term to pay to the lessees the value of thé buildings or warehouses erected by them on the premises unless the lessors should choose to grant a further lease with like covenants.

It appears that in 1839 a lease was made of the premises in question to persons of whom the plaintiffs are the successors in' interest for seven years from March 1,1840, which lease provided that before the 1st December, 1845, the value of any buildings or warehouses erected thereon should be ascertained by sworn appraisers, and in case the lessor failed to pay to the lessees the amount of the valuation, the lessor would grant a renewal lease for the further term of fourteen years at stick annual rental as should be agreed on, not less than the present rent, and in case of failure to agree the lease provided for an arbitration.

In the year 1847, a renewal lease for fourteen years was made at the same rental containing similar covenants as the original lease, including covenants as to payment for the buildings or renewal. The first renewal expired in 1861, and thereupon a new lease was executed for fourteen years from May 1, 1861, at the same rent, containing the same covenants for renewal or payment for buildings, and also a clause that the renewal lease should contain like covenants with the lease then made. The third renewal was given in June, 1874, containing similar covenants of appraisal and of renewal in default of payment for the buildings. It also contained the usual general covenant that the form of the new lease should be similar to the present lease. When the lease of 1874 was approaching termination, the plaintiffs, the representatives of the original lessee, demanded a renewal of the lease with a " further covenant of -renewal, or, in default thereof, a covenant to pay for the buildings.

The question presented is whether the plaintiffs were entitled to a lease containing such covenants of renewal.

It is urged upon the part of the defendants that the right to such a lease would be equivalent to a right of perpetual grant. Upon the other hand, it is claimed by the plaintiffs that their construction does not provide for such perpetual grant, because such lease gives the lessors the option of granting an additional term or not at their pleasure. If they choose not to grant the additional" term, they must pay for the buildings according to the contract.

It does not seem necessary to discuss the questions raised by the foregoing facts. In the case of Muhlenbrinck v. Pooler, 40 Hun, 526; 1 N. T. State Rep., 223, the identical question seems to have been determined against the contention of the plaintiffs. In that case the lease provided that the lessees should erect upon the premises brick dwelling houses, and that upon the expiration of the term the lessor would either pay to him, his heirs, executors, administrators or assigns the just and full value of the buildings or such of them as should remain on the premises, or would grant to him. or them a new lease for a further term of fourteen years at a rent to be agreed upon by the parties or to be determined by appraisers. It then declares that “ the new lease shall contain covenants, conditions and agreements the same as those herein contained.” It was held that but one renewal was provided for, and that the new lease need not contain a covenant for renewal.

The principles enunciated in this case seem to be adverse to the contention of the plaintiffs, and as it is impossible to distinguish the facts in that case from those in the case at bar, it must be considered as a controlling authority.

Judgment should be ordered in favor of the defendants, with costs.

Daniels and Brady, JJ., concur.


author: Barrett, J.

text:
    Thomas F. Oakes, Resp’t, v. Edward F. De Lancey, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. Venue—Action for breach of contract as to quantity of land— Code Civ. Pro., § 982. -
    An action to recover back part of the purchase price of land on the ground that the premises did not contain as much as was claimed and agreed to be conveyed, where the complaint contains no allegations as to the title, is not one to compel the determination of a claim to real property within the meaning of § 982 of the Code, requiring that such action be tried in the county in which the real property is situated.
    2. Same—Residence.
    Non-residence of the plaintiff cannot be proved by affidavit made solely on information and belief.
    Appeal from an order of the special term denying the defendant’s motion to-change the place of trial.

      Lartin J. Keogh, for app’lt; Holmes & Adams, for resp’t
   Barrett, J.

The defendant moved to change the place of trial to Westchester county, upon the ground that the action was to compel the determination of a claim to real property within the meaning of § 982 of the Code. The motion was denied, and, we think, properly, upon the ground that there was nothing in the complaint warranting the defendant’s contention. The complaint sets out an agreement for the sale of land in Westchester county, at a certain price per acre. After the making of this agreement, the plaintiff says he discovered that the premises did not contain as many acres as the defendant claimed. Upon this there was a dispute at the time appointed for closing the transaction, and thereupon it was agreed that the plaintiff should pay the whole purchase money on the basis of the total acreage contracted for, with the right, however, to recover back by action so much of the purchase price as should represent the actual shortage. Such shortage is then set forth, and for the amount thereof the plaintiff demands judgment.

There is not a word in the complaint with regard to the title. The gravamen is that the premises contain but eighteen acres and a fraction of an acre, when the bargain was for twenty-two acres and a fraction. The plaintiff concedes that under these issues he must, in order to succeed, establish that the premises described in the complaint and in the deed contain eighteen acres and a fraction of an acre and' no more. The defendant, however, attempts to go outside of the pleadings, and to show by extrinsic proof that the real dispute is with regard to the title to the land under water. But he cannot do this. The complaint must govern, Knickerbocker L. I. Co. v. Clark, 22 Hun, 506, and the court, on a, motion of this character, cannot accept 'affidavits negativing the plaintiff's assumed position and maintaining that his real cause of action is something different from that which he has set forth in his pleading.

If, however, the title were incidentally involved, it by no means follows that the place of trial should be changed. Even upon the extrinsic proof sought to be injected into the case, the action is not to procure a judgment affecting the title to real property, but to recover money agreed to be returned in case the title' to such real property is not in the defendant It was expressly held in Hogg v. Mack, 53 Hun, 465; 25 N. Y. State Rep., 374, that the section in question, § 982, does not apply to an action at law to recover damages for the breach of a contract, although that contract relates to real property, and the breach is alleged to be due to the inability of the defendant to give the plaintiff a good title.

The point is also made upon the appeal, that the defendant resides in Westchester county, and that the plaintiff is not a resident of this city. This point was not considered at special term, probably because it was unsupported by proof, and possibly because, as suggested ujdou the argument, it was not there taken. The only affidavit with regard to the plaintiff’s non-residence is that of the attorney’s clerk, and it is in these words:

“ Deponent further says, upon information and belief, that the plaintiff, Thomas F. Oakes, is not a resident of the city and county of New York.”

It was said in Mowry v. Sanborn, 65 N. Y., 584, that “it may, as a general rale, be safely affirmed that, in the sense of the law, a general assertion of a fact in an affidavit upon information and belief proves nothing.” We think, under the circumstances, that the clerk’s affidavit comes within this general rule.

The order appealed from was right, and should be affirmed, with costs.

Van Brunt, P. J., and Bartlett, J., concur.,


text:
    In the Matter of the Estate of Hiram M. Forrester, Dec’d.

      (Supreme Court, Generad Term, First Department,

      Filed December 29, 1890.)

    Collateral inheritance tax — Exemption—Methodist Episcopal Church Home.
    The original charter of the Methodist Episcopal Church Home contains no provision in relation to taxation, hut the amendment of 1878, chap. 81, which gave it greater property rights, exempted it from taxation on its real estate. Held, that this clearly excluded the personal property from exemption, and, therefore, a bequest to it was not exempt under the collateral inheritance act.

      Appeal of the Methodist Episcopal Church Home of the city of New York, one of the legatees named in the last will and testament of Hiram M. Forrester, deceased, from an order of the surrogate of this county fixing the tax on the legacies bequeathed to it.

      W. F. Mac Rae, for app’lt; J. H. Maynard, deputy att’y-gen’l, for Theodore Myers, comptroller, resp’t.
   Barrett, J.

The question presented by this appeal is whether the appellant is exempt from taxation under what is known as the collateral tax act, Laws of 1885, chap. 483, as amended by Laws of 1887, chap. 713, upon the legacy bequeathed to it by Hiram M. Forrester, deceased. Section 1 of these acts make an exception in favor of corporations now exempted by law from taxation,” and the appellant claims that it comes within this exception. Under the Revised Statutes an alms-house is exempt from taxation generally, and the appellant’s institution probably comes within this term, as defined by the court of appeals in the case of the Colored Orphans' Association v. The Mayor, 104 N. Y., 581; 6 N. Y. State Rep., 477.

It certainly is performing a work of pure charity. Ho fee is charged for admission, the inmates are supported gratuitously, and all the property of the corporation is appropriated solely to the use of the poor. H the case stood upon the Revised Statutes alone, there would be little difficulty in sustaining the appellant’s position. But, under its act of incorporation, the appellant is only exempted from taxation upon its real estate. It was originally incorporated under chap. 225 of the Laws of 1851. In this act nothing was said about taxation, but the property which the corporation might acquire was limited to $50,000 worth of real estate, and to personal property bringing in an annual income of not more than $10,000. This act was amended in 1878 (chap. 81) and greater rights with regard to the acquisition of property were conferred upon the corporation. By this latter act it was permitted to acquire by purchase, or by bequest or devise, real and personal estate, the annual income from which should not exceed $50,000. This addition to the privileges originally granted was, however, coupled with a provision exempting from taxation the real estate of the corporation. We think that this special statute, prescribing as it did a rule for this particular corporation, takes the case out of the operation of the general exemption coiitained in the Revised Statutes. It will be observed that the legislature originally said nothing upon this subject, but left the corporation free to avail itself, if an almshouse, of the existing general law exempting personal as well as real property. It was only upon the grant of additional privileges that taxation was referred to, and then the exemption was limited to real estate. This clearly excluded personal property from such exemption. If it had been intended to include personal as well as real property, it would have been easy to say so. Indeed, it would only have been necessary to say nothing at all upon the subject Considering the existence of the general law, which was before the legislature when the act of 1878 was- passed, the insertion in the latter act of the exemption of real estate was idle, unless intended as a special rule applicable in future to this corporation.

This view of the case accords with the rule of construction laid down in Exccelsior Petroleum Co. v. Lacey, 63 N. Y., 426. There, Folger, J., speaking for the court, observed that “ where the legislature has once provided a special rule for a particular case, a general statute thereafter enacted, though broad enough in its terms to.be applicable to the case, will not, from that- fact alone, alter the special rule. It is still more reasonable,” he added, “that where there has been a general enactment covering the subject in general, in terms which include the particular case, and there is a subsequent enactment which makes a 'rule for that particular case, that the latter shall, be held to be all that the legislature, at least, meant for the regulation of that case.” This doctrine is conclusive of this case. Taxation is the rule, and one claiming exemption must find plain warrant for it in the law. Doubtful language will not suffice. We think, therefore, that the personal property of the appellant is not now exempted by law from taxation and, consequently, that it is liable to the tax upon the legacies in question.

The order appealed from should be affirmed, with costs.

Van Brunt, P. J., and Bartlett, J., concur.


author: Mayham, J.

text:
    James M. Vanderzee, App’lt, v. Bertha J. Herman et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed February 4, 1891.)

    Contract—Performance—Occupancy or presence of owner of building NO WAIVER OF DEFECTS.
    Where a builder performs work for an owner under a special contract, the occupancy of the building by the owner, or the fact that he was present when the work was done, is not a waiver of defects in the builder’s performance ; to hold occupancy by the owner to be a waiver of substantial performance would be to compel him to accept an imperfect performance or forfeit the use of the building.
    Appeal from a judgment entered upon the report of a referee, dismissing the complaint.

      Ward & Cameron (F. W. Cameron, of counsel), for app’lt; Stedman, Thompson & Andrews (A. L. Andrews ,of counsel), for resp’ts.
   Mayham, J.

This appeal is brought by the plaintiff from a judgment against him, entered' upon the report of a referee dismissing the complaint.

The action was to foreclose a mechanic’s lien, fheci against the defendant, Bertha J. Herman, as owner, and John L. Herman, as contractor.

The complaint alleges that the defendant, Bertha u., was the owner, and that she with her husband occupied the premises in the city af Albany, and that between the 15th and 30th of April, 1889, the plaintiff at the instance and request of the defendants, furnished materials and performed labor as a builder upon such premises, in all, of the value of $113.50, and that no part has been paid; and that on the 21st of May then next the plaintiff filed a lien against such premises; and concludes with a demand for judgment for the amount of the claim, and the foreclosure of the lien to satisfy the same.

The defendants answer separately; the defendant Bertha denying any employment by her of the plaintiff to furnish material, or to do work on the building on her premises.

The defendant, John L. Herman, in his answer, set up a special contract under which he alleges such work and material was performed and furnished, and that the plaintiff failed to perform the same, and set up matters as counterclaim, and demands an affirmative judgment for himself.

The issue was tried by a referee, who found that the work done, and materials furnished was done and furnished under a special contract; that the plaintiff had failed to perform the same according to its terms, and was not entitled to recover.

There was a conflict of evidence as to the terms of the agreement between the parties, and, also, aS to the manner of the performance of the work, but that conflict raised purely disputed questions of fact, proper for the determination of the referee, and on a careful examination of the evidence on both sides of these controverted questions we think there was abundant evidence to support the referee’s conclusion upon the facts.

But it is insisted on the part of the appellant that the material furnished and work done was all done under the observation and special direction of the defendants, and that they cannot now object to the manner of performance.

But upon this branch of the case, as well as the other, the referee finds the fact against the plaintiff, and upon sufficient evidence to uphold his finding on appeal.

The plaintiff also insists that the sash furnished by him, and of which the defendant John complains, were accepted by the defendants without objection, and that they 'acquiesced in the use of the same, and that, therefore, they are estopped, and will not be heard to complain for the purpose of avoiding payment.

It is quite true that the sash were placed upon defendant’s building, and they, with the balance of the structure, were used by the defendants, but the evidence discloses that objections to their kind and quality were made by the defendant John, and the referee finds that they were not accepted by the defendants.

“ Whether a contract of this character has been substantially performed is a question of fact, depending upon all the circumstances of thecase.” Nolan v. Whitney, 88 N. Y., 650, and cases there cited.

It is a general and quite elementary rule of law that a party must perform his contract before he can claim the consideration due him upon performance; but the performance need not be in all cases literal and exact,.but it must be a substantial compliance with the contract, and whether there has been a substantial compliance is a question of fact to be determined, as we have seen, by the trial court, especially in cases of conflicting evidence.

In a case of that kind, the acceptance of the building with the defective work or material upon it is not an acceptance of the performance'of the;contract; or a waiver of performance, so as to •allow á recovery, when the special contract has not been substantially performed by the builder.

The work and material having been applied upon the premises, the owner has no other alternative than to occupy with additions upon the property; to hold such occupancy to be waiver of a performance would" be to compel the property owner to accept an imperfect or incomplete performance of the contract, or forfeit the use of the building when the builder neglects or refuses to complete the contract.

In Kidd v. McCormick, 83 N. Y., 392, it was held that when the builder under contract abandons the building before completing the contract, the owner may complete the work, and still insist on the terms of the contract

This case largely turns upon questions of fact which were considered and passed upon by the referee. And his findings are all supported by evidence.

We see no'reasom for reversing the judgment

Judgment-affirmed, with costs.

Learned, P. J., and Landon, J., concur.


text:
    Oscar P. Kemp et al., App’lts, v. Alexander D. Peck, Survivor, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed February 4, 1891.)

    Partnership—Account stated—Estoppel.
    If an account stated is presented to one person charging him as liable as partner with another person, however much the account might conclude the former as to the amount of the claim, he is not thereby estopped from proving and alleging in an action that the other person was not his partner.
    Appeal from a judgment entered upon the report of a referee, dismissing the plaintiff’s complaint with costs.
    The action was" prosecuted against Alexander D. Peck as survivor of an alleged copartnership of Alexander D." Peck and .George A. Peck, George A. having died.
    ' The complaint alleges that the plaintiffs were copartners, and that as such they sold the goods charged in the complaint to George A. Peck and A D. Peck at their special instance "and request, but does not in terms allege that they were partners, alleges the death of George A. Peck before the commencement of this action.
    The defendant denies each and every allegation of the complaint except the death of George A. Peck.
    On the trial, the plaintiff proved various declarations of George A. Peck and Alexander D. Peck, tending to prove that they were partners, which was met by testimony offered by the defendant, tending to deny the existence of that relation.
    The plaintiff also sought to establish defendant’s liability by proof of an account stated; which was also met -by evidence tending to deny the same. The referee reported in favor of the ■defendant

      John Lansing, for app’lts; V. P. Abbott, for resp’t
   Mayham, J.

The referee in this case, upon the conflicting •evidence as to the existence of a copartnership between Alexander D. Peck and George A. Peck, found that they were not" at .■any time during the accruing of the account on which this action was brought copartners.

There is certainly evidence to support this finding, and sufficient, we think, to uphold.

The evidence on this subject may be regarded as somewhat equally balanced.

But in such a case the court on appeal will not interfere with the finding of the trial, upon the well settled and sound rule that the jury or referee required to pass upon disputed questions of fact, upon a conflict of evidence, having the witnesses before them, are better able to judge between them as to the probable truth of the evidence than the court on review, who sees only the record.

As there is no decided preponderance in the oral evidence and no circumstance to give added weight to the testimony offered by the plaintiff on this subject, we see no reason for interfering with the referee’s report on that subject

The testimony of Mrs. Peck relied upon by the plaintiff was more a conclusion of the witness than a statement of facts by her, and in it she is expressly contradicted by the evidence of the defendant, Alexander D. Peck, which fairly raises a question of fact for the referee.

He swears that George A. Peck worked his farm on shares, that George A. had no machinery, that he, Alexander, bought the machinery, and paid for the same, and explains how George A. Peck’s name came to be used in the mortgage.

But the plaintiff insists that the defendant is concluded in this ■action upon an account stated.

If this account had been charged to Alexander alone, and stated to him, and he had retained the same without objection for the time indicated by the evidence, he would be deemed to have acquiesced in its correctness as to amount, and it would be presumptively binding upon him. Avery v. Leach, 9 Hun, 106.

But the referee finds that the letters “ & A. D,” the only thing in the account indicating that it was charged against Alexander D., was written over an erasure of the word “ Peck ” a significant fact, which the referee had a right to take into account in determining whether the original account was not in the name of George A. Peck.

Mor do we think that an account stated can be used for the double purpose of proving a partnership, as well as the amount of the claim.

All the cases seem to proceed on the theory, that if the account is stated between the proper parties to it, and assented to or retained so long that the assent or acquiescence in its correctness may

reasonably be inferred, that the party is concluded, in the absence of fraud, from denying its correctness, Lockwood v. Thorne, 11H. Y., 170, and if either party attempts to impeach the settlement and open the account for re-examination the burden of proof rests-upon him. Towsley v. Denison, 45 Barb., 490. But all this relates to the correctness of the account and not to the liability of the person in the form in which he is sued.

If an account is presented to one person charging him as liable, with some other person, as his partner we do not think that the-authorities go to the length that he will not be permitted to deny that relationship when sued upon the account.

If, therefore, as in this case, the proof fails to establish a joint, liability, the party to whom the account was presented would not, by reason of its retention without objection, be solely liable-on it, and if the partnership relation was not established, of course the firm would not be liable.

The appellant raises several .objections upon the evidence and insists that the referee erred in the receipt and rejection thereof on the trial.

We have carefully examined the various rulings and exceptions upon that subject, and find no error committed by the referee in the receipt or rejection of evidence for which this judgment should be reversed.

Judgment affirmed, with costa

Learned, P. J., and Landon, J., concur.


author: Mayham, J. Landon, J. (dissenting).

text:
    James A. Fox, Resp’t, v. The Village of Lansingburgh, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 4, 1891.)

    Villages—Negligence—Charge.
    Plaintiff was injured by falling at night over a pile of flag stones one-foot high, which covered more than half the width of a sidewalk in a frequented street, and which had remained there a week. The defendant asked the court to charge that the defendant was not required to keep and maintain the walks of the village in an absolutely safe condition. The court replied: “Iso charge with this qualification; I charge that the. village must use proper care and vigilance to keep the streets and highways in a reasonably safe condition for travel; that is an absolute duty they owe to travelers.” Meld, no error.
    (Landon, J., dissents.)
    Appeal from a judgment entered upon-the verdict of a jury in. the Rensselaer county court.
    The action was prosecuted for alleged negligence of the defendant in allowing a pile of flag-stone to be placed upon the sidewalk over which the plaintiff, while passing along the walk in a dark night, fell and was injured.
    The proof disclosed that at the time of the injury there was upon the sidewalk of one of the streets of the defendant a pile of flag-stone, piled one upon another, to the height of about ten to twelve inches at a point where the walk was about thirteen (18) feet wide, the stone extending from the curb of the street to within three (3) feet seven (7) inches of the stoop of a house at that point.
    One dark night, at ten o’clock in the evening, the plaintiff, a young man of about twenty (20) years of age, in company with three other young men, were passing along that street, and when a short distance from where these stones were piled, started to run a race to a point beyond where the stones lay, and in running the plaintiff came in contact with the pile of flagging stone •and broke his leg.
    The proof does not disclose by whom the stones were placed in that position, nor is there any proof of actual knowledge on the part of the trustees or officers of the village that the walk was thus obstructed, but the evidence shows that they had been there for about one week before the injury.
    The jury rendered a verdict for the plaintiff for $3,000, upon which judgment was entered, from which the defendant appeals, and the principal or only ground urged on this appeal, as ground for reversal, is alleged misdirection of the judge in his charge to the jury.

      Comstock & Hyatt (A. C Comstock, of counsel), for app’lt; Merritt & Ryan (H. A. Merritt, of counsel), for resp’t.
   Mayham, J.

The learned counsel for the appellant insists that it was error for the court to charge the jury in the following language:

“ How, I charge you, gentlemen, as a matter of law, that it is the absolute duty of the village of Lansingburgh to keep its streets in a reasonably safe condition for travel, and that is an -absolute duty which they owe to all travelers, and when that duty is not discharged, and in consequence thereof a traveler is injured, without any fault on his part, they incur a liability.”
“ That the village of Lansingburgh is under no obligation to provide for everything that may happen on their streets, but only for such use of them as is ordinary, or as may be reasonably expected.”

While this language is quite as strong as the rule upon this •subject under the .authorities will justify, we do not think, when taken in connection with the balance of the charge, that it was an -erroneous statement of the law.'

It is doubtless the duty of a municipality to keep its streets in a reasonably safe condition for the public travel, and this, we think, is the fair construction of what was said by the learned judge.

In Hunt v. The Mayor, etc., of New York, relied upon by the counsel for the appellant, Andrews, J., uses this language: “When -an injury happens from the defect of a roadway itself, or from a dangerous condition of the street, created by the act or consent of the municipality, negligence as in the cases mentioned is the ground of liability.”

He also says that: “ The mere existence of a defect, from which the traveler sustains injury, does not, independently of negligence, •establish a culpable breach of duty on the part of the municipality;” and he proceeds to discuss the difference in the kind of proof, in a case where the defect exists by the act of a municipality, or to-its actual knowledge, or where' it exists by the act of a third person, and he adds: “It is at all times to exercise due care that the streets are safe and free from dangerous defects, and that they shall not become unsafe.”

We think the rule laid down by the trial judge is substantially like that above quoted, when we read the portion to which exception is taken in connection with other expressions of the judge in his charge, such as: “ The village of Lansingburgh is under. no obligation to provide for everything that may happen on. the streets.”

“ I charge you that municipal authorities are not insurers.”

But if the language used by the judge to which we have referred went too far, it was corrected in his response to the defendant’s-request to charge, and the true rule was then enunciated.

The defendant requested the judge to charge “ that the defendant is not in law required to keep and maintain the walks of the-village in an absolutely safe condition.”

To this the court responded, “ I so charge with this qualification: I charge that the village of Lansingburgh must use proper care and vigilance to keep the street's and highways in a reasonably safe condition for travel; that is an absolute duty they owe to travelers.”

Taking the whole charge, we think it presented the question in the case fairly to the jury, so as not to mislead them;' and that the points to which exceptions are taken are fairly presented and covered by the charge when taken as a whole.

The charge of contributory negligence by the plaintiff was one for the jury under the circumstances of this case and was properly submitted to them.

The evidence shows how long this obstruction had been upon the sidewalk, and presented a proper question for the jury upon the point of the negligence of the defendant, as was said by the-court in Kunz v. City of Troy: ' “ This lapse of time, together with the fact that Federal street was a busy and frequented part-of- the city, made it, we think, under the authorities, a question for the jury, whether the authorities charged with the care of the public streets ought to have known of the obstruction, and to have caused its removal before the accident.”

The denial of the defendant’s motion for nonsuit was not error, and the judgment must be affirmed.

Judgment affirmed, with costs.

Learned, P. J., concurs.

Landon, J. (dissenting).

I think the jury might well have-understood that it was absolutely the duty of the village to keep its streets in a reasonably safe condition for travel, and not simply that it was the absolute duty of the village to use care to keep them so, and I, therefore, dissent.


text:
    Joseph Barbeau, Resp’t, v. Nelson Picotte, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 4, 1891.)

    1. Partnership—Action between partners.
    At the time of the formation of a co-partnership between plaintiff and defendant, it was agreed that plaintiff should keep any horses which the firm might buy in their business as horse-dealers, and that defendant should pay plaintiff therefor thirty-five cents per day, per horse, as the defendant’s share of the expense of such keeping. In an action at law, brought upon this agreement, Held, that as neither side demanded an accounting in their pleadings, and as this was a transaction separate from the general accounts of the partnership and one which could be decided without going into such accounts, the action could be maintained.
    2. Reference—Findings.
    Where a referee made a finding which was sufficient to allow plaintiff to recover in an action at law, but al-o made a further finding which was not within the issues and which seemed to be based upon an equitable view of the case, Held, that the latter finding was not error which could betaken advantage of; that the court would sustain the action as a legal one.
    Appeal from a judgment entered upon the report of a referee.in favor of the plaintiff.
    The complaint alleged that from the 5th day of February, 1885, to the 2d day of September, 1887, plaintiff and defendant were copartners in the business of buying and selling horses, and that at the time of entering into the copartnership it was agreed that the plaintiff was to furnish stable room and feed and care for the horses bought, and that the defendant was to pay the plaintiff therefor thirty-five cents per day for each horse, and alleged that keeping of horses under such agreement amounted to $1,383.45, which plaintiff has demanded, and the defendant refused to pay, and demands judgment for that sum.
    The answer admits the formation of the partnership and that the business was conducted by the parties as copartners, and that, by the terms of the copartnership plaintiff was to furnish stabling and keeping for the horses of the firm, and was to receive thirty-five-cents per day for each horse kept until September, 1886, when it alleges a change of the terms of the agreement, by which the plaintiff was to receive from that time fifty cents per day for such keeping and attention, but denies that the defendant agreed to pay plaintiff for the keeping, and alleges that the keeping was to be one of the expenses of the firm, alleges settlements and balance struck at various times, and that the plaintiff is indebted to the defendant, and claims judgment for a balance in his favor.
    The reply takes issue with the affirmative allegations of claims in the answer.
    At the commencement of the trial the defendant makes the point that the action cannot be maintained as an action at law, as it necessarily involves an accounting between the partners of their partnership accounts.
    Plaintiff states that the account of the partnership will not be inquired into, and that the only issue is whether the plaintiff is to-be allowed seventy or thirty-five cents per day for keeping the horses.
    No ruling seems to have been made by the referee at the time upon the defendant’s motion.

      Henry L. Strong (Isaac Lawson, of counsel), for app’lt; H. L. Washburn, Jr., for resp’t.
   Mayham, J.

The appellant’s main contention is that the subject matter of this action was a partnership transaction involving an accounting between partners, and that as no" accounting was asked for, and the action was prosecuted purely as an action at law, the plaintiff could not recover in that form.

Neither the complaint or answer necessarily shows that an accounting between the parties as copartners is required or expected in this action, nor do the pleadings on either side ask for an accounting as such, but it is insisted by the appellant that as the claim arose out of an alleged partnership transaction, and related to copartnership property, the accounts of the copartners were necessarily and unavoidably involved in the case.

The theory upon which the action was brought was that the defendant should pay the plaintiff a certain per diem allowance for each day that the plaintiff kept, cared for and fed the horses bought and owned by the plaintiff and defendant as partners.

If the transaction between the parties will bear that interpretation, then the rule that one partner cannot sue and recover of his copartner in an action at law, on partnership accounts, has no application.

“ There is no rule forbidding one partner to sue another at law in respect to a debt arising out of a partnership transaction.
“If the obligation or contract, though relating to partnership business, is separate and distinct from all other matters in question between the partners, and can be determined without inquiring into the partnership accounts, an action will lie by one partner against his copartner.” Crater v. Bininger, 45 N. Y, 548-549.

The referee, in his sixth finding of fact, finds: “ That, at the "time of entering into the copartnership, it was among other things mutually agreed upon by and between the said plaintiff and said defendant that said plaintiff was to furnish stable room, feed, bedding, care and attention for the horses which might be bought in the course of such business, and that the defendant was to pay such plaintiff therefor the sum of thirty-five cents per day, for each horse, as and for such defendant’s share of the expense of such stable room, feed, bedding, care and attention.”

If this finding was sustained by the evidence (and there was clearly evidence enough to uphold the same), then as to the keeping of these horses the plaintiff and defendant were not partners ; as to that branch of the business their partnership was severed.

There was no community of interest between them as to the actual cost of the keeping by the plaintiff.

He was to keep them for thirty-five cents a day; so far as the defendant was concerned, even if by so doing he was not fully compensated, and suffered loss, he and he alone would be the loser; and so, on the contrary, if the agreed price was more than, it was worth, the gain would be his and not that of the firm.

As to this item of keeping there would be none of the elements of partnership, nor would it be necessary to investigate the partnership accounts, to determine the amount due him from the defendant for keeping the horses; the only inquiry necessary would be as to the number of days for which he furnished keeping.

It is doubtless true that unless there has been a settlement and balance struck between partners as to their partnership accounts one partner cannot maintain an action at law to recover a balance due him on the partnership matters, and in that manner effect a division of the assets. Arnold v. Arnold, 90 N. Y., 583.

But where, as we have seen in this case, the amount claimed is not part of the partnership assets, but is an individual demand due one partner from the other, no such divisibility exists.

In Ferguson v. Baker, 116 N. Y., 257; 26 N. Y. State Rep., 626, it was held that although ordinarily one partner may not sue his copartner at law in respect to partnership dealings, if the cause of action is distinct from the partnership accounts and does not involve their consideration it is maintainable.

In that case the plaintiff and defendant had been copartners and dissolved and settled, and one of the partners took the accounts due the firm and agreed to collect the same, and pay over one-half to the plaintiff, and failing to do so it was held that an action at law would lie to recover the same. This decision was put upon the ground that it was an agreement by one partner to pay the other a specific sum, and that an action upon that agreement did not involve an examination into the partnership transactions.

That is true of the case at bar upon the findings of the referee above quoted.

But it is urged by the counsel for the appellant that the seventh finding of the referee is not consistent with the sixth finding above referred to, and in that finding he found, that the firm agreed to pay the plaintiff seventy cents per day for keeping each horse kept by him for the firm, and that there is no allegation in the complaint upon which .such finding can be based.

There is no allegation in the complaint seeking to charge the . firm with seventy cents per day for keeping these horses nor is there any allegation under which the general business of the firm could be inquired into and adjusted, and if the seventh finding of fact by the referee was the only one upon which a recovery could "be predicated in this action there might be grave doubt whether the allegations of the complaint would be supported by the proof' so as to justify a recovery. •

While the distinctions which formerly existed between actions at law and suits in equity are so far abolished that the pleader need not declare that he complains in either, and if his complaint is so framed that it contains a cause of action which is established by the proof he may recover, and for that purpose he may so frame his complaint as to present the double aspect so as to entitle him to either legal or equitable relief. Stevens v. Mayor, 84 N. Y., 305; Wheelock v. Lee, 74 id., 500. But in every case the judgment sought must be warranted by the facts stated!

The question in each case is, ought the plaiútiff to recover under the pleadings'upon the facts proved ? Dobson v. Pearce, 12 N. Y, 156.

Has the plaintiff according to the whole law of the land applicable to the case made out the right which he seeks to establish ? Crary v. Goodman, 12 N. Y., 266.

But if the complaint of the plaintiff upon which issue is taken warrants legal relief only, the plaintiff cannot have equitable relief "upon the evidence.

He must bring his proof within the allegations of his complaint. Salter v. Ham, 31 N. Y., 321; Bradley v. Aldrich, 40 id., 504; Stevens v. Mayor, etc., of N. Y., 84 id., 305.

But in this'case, as we have seen, the plaintiff proved and the ■referee’has found that there was an agreement on the part of the plaintiff to pay defendant thirty-five cents per day for keeping the ’ horses. Such a contract if made creates a legal liability; and in an action at law' with a complaint alleging a breach of that contract and demanded judgment for the amount of the agreed price no Teason is perceived Why a recovery could not be had upon proving "the contract and breach.

Ho harm can come to the defendant from a finding which is not within the issue when the recovery is predicated upon proof ■clearly within the letter and spirit of the complaint.

There is a cause of action alleged in the complaint, and there is . ■evidence and a finding by the referee to support that allegation, and there was within the requirements of § 275 of the Code .a cause of action established “ consistent with the case made by "the complaint and embraced within the issue.”

The complaint asks for legal relief, and the referee has found "that the evidence entitles him to that kind of judgment, and thus the requirements of law seem to be answered.

The plaintiff and defendant not being partners as to the sum .agreed by the defendant to be paid plaintiff by him for keeping the horses, the claim was- a- proper subject- of an action, and the fact that as to the business of buying and selling horses the parties were partners did not affect the defendant’s liability to pay the sum which he as an individual agreed to pay the plaintiff as an individual for keeping the horses.

This view does not conflict with the decision of this court in_ Belanger v. Dana, 52 Hun, 43; 22 N. Y. State Rep., 218.

In that case the parties divided all but the debt due the firm of $400, which it was agreed should, when collected, be applied in payment of their joint notes; this debt was paid to the defendant Dana, who sent it to the bank which held the joint notes, but one-half was applied to the individual note of the defendant, who, with full knowledge of the misapplication of the money, adopted the wrongful application, which was held to be a wrongful conversion or misappropriation of the money to his use, which was a ■conversion by him as a partner of the partnership fund. The plaintiff sued at law for the money, claiming that the partnership being ended, this fund was eliminated from the partnership relation and could be recovered by one partner of the other at law, ■ but the county court held that it had never ceased to be partnership property, and that an action at law did not lie for its recovery, and held that in respect to the transaction in question, before an action at law as distinguished from an action in equity can be maintained, the partnership relations must have fully ceased.

“ In other words, the transaction must either never have been part of, or must have been completely separated from the partnership affairs in order to forro a separate cause of action at law.”

It will be seen that the distinction between that case and this is that the subject-matter of that action was partnership money, and in this it was from the first but a claim by one party against another upon an individual and not a partnership claim.

We think the rulings and determination of the referee were right, and that the exceptions to his report were not well taken, and that the judgment should be affirmed.

Judgment affirmed, with costs.

Learned, P. J., and Landon, J., concur.


text:
    Solomon Strasser, Resp’t, v. John L. Staats, as Noble Grand of Mount Hermon Lodge, I. O. O. F., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 4, 1891.)

    1. Associations—Odd Fellows—Death benefit—By-Laws.
    M. S. was a member of a lodge, an unincorporated'association of more than seven members, and under its by-laws, upon death, the next of kin were entitled to a funeral benefit. The by-laws stated the dues at a sum per week, and provided that the dues of a member “accrue weekly.” They also provided that no one in arrears for dues, etc., for more than thirteen weeks should be entitled to the benefits of the lodge until six weeks after all arrearages were paid. The custom: was that the dues were charged and collected quarterly. The deceased had paid the quarter due July 1, upon July 13. He died on August 4. Held, that the deceased was not in arrears at his death; the provision that dues “ accrue weekly” indicating only the rate at which they increased, and not being equivalent to “ payable weekly.”
    3. Same—Representatives of deceased member not bound by by-law AS TO TRIBUNAL TO DETERMINE DISPUTES.
    Where the constitution of a lodge provided that disputed questions must be passed upon by various tribunals in the order before recourse was had to the courts, and that if one did resort to the courts before all such remedies were exhausted, he thereby forfeited all claim to benefits, Held, that this provision applied only to members, and that the next of kin, who took by virtue of the contract of the lodge with the deceased member, and were not members thereof, could sue at once.
    Appeal from the judgment of the Albany county court, affirming a judgment of the city court of the city of Albany in favor of the plaintiff for fifty dollars ($50) and costs.
    The plaintiff is the assignee of the next of kin of Moses Strasser, deceased, who in his lifetime was for many years a member of defendant’s lodge, and on whose death the plaintiff, as the assignee of the deceased, next of kin, claimed a funeral benefit
    The defendant is an unincorporated association of more than seven members.
    This association is a secret organization of Odd Fellows, known as Mount Hermon Lodge. By the by-laws of this lodge, on the death of a member not disqualified, his next of kin are entitled to a funeral benefit of ($50) fifty dollars from the lodge. Moses Strasser, deceased, had been in his lifetime for many years a member of this lodge, and on his death the funeral benefit was by his next of kin assigned to the plaintiff, who is a son of the deceased.
    This lodge is subordinate to the grand lodge of the state, from which its derives its constitution, and, subject to the provisions of the constitution, enacts its own by-laws; and among the powers which it may exercise it may within certain prescribed limits fix the amount of the weekly dues of its members.
    In the exercise of this power this lodge fixed the dues of its members at thirteen cents per week by one of the provisions of its by-laws.
    The constitution provides that: “ The dues of a member of the lodge accrue weekly, and its by-laws must express the amount at a given rate per week.”
    The by-laws also provide that: “No brother who is in arrears for dues, fines, or assessments of any kind over the amount of thirteen weeks * * * shall be entitled to receive the benefits of this lodge until after the expiration of six weeks from the time of payment of such arrearage.”
    The evidence shows that all dues of members were charged and collected quarterly.
    The book of the lodge shows that the dues of deceased were charged on the 1st of April, July, October and January in each year, and the dues charged July 1, 1888, were paid and credited on the records of the lodge July 13, 1888.
    The deceased died August 4, 1888.

      J. W. Ecker, for app’lt; Jdosendale & Hessberg (Albert Hessberg, of counsel), for resp’t.
   Mayham, J.

This controversy must turn upon the construction to be put upon the provisions of the constitution of the lodge, which provides that: “ The dues of members of the lodge accrue weekly,” when read in connection with that provision of the bylaws which prescribes the ground of forfeiture of benefits, and which is as follows : “No brother who is in arrears for dues, fines or assessments of any kind over the amount of thirteen weeks, * "x" * shall be entitled to receive the benefits of this lodge, until after the expiration of six weeks from the time of payment of such arrearages.”

It is quite apparent from the uniform action of the lodge in not exacting weekly payments of dues from its members, that it did not interpret the phrase “accrue weekly” as equivalent to “payable weekly ” or “ due weekly.” Bouvier defines accrue as, to grow to; to be added to, as the interest accrues on the principal.

Applying this definition to the phrase “ dues accrue weekly,” and it would not signify that they are payable weekly ; but rather that they are estimated or measured weekly, to grow or to be added to each other as interest is added to, or increases the amount of a debt.

This, at least, should be its signification when applied to members who for years have been paying quarterly at the rate of thirteen cents per week; rather than the other contsruction, which might result in a penalty or forfeiture, which is not favored in law.

If, therefore, these dues were payable quarterly, then no dues ■could be deemed as in arrears until the end of the quarter.

The quarter ended on the 1st of July, 1888, and from that time, and that time only, would dues be deemed to be in arrears, but the “ dues accruing weekly ” thereafter would not be in arrears, because they would not fall due until the first of the succeeding October, when they, under the definition of Bouvier and the usage of the order, would fall due.

What dues then were in arrears on and after the 1st of July, 1888?

Clearly only those which fell" due on that day, and they were paid and credited on the 13th of July, 1888, nearly a month before the death of Moses Strasser.

No dues therefore at the time of the payment had been in arTears for thirteen weeks at the time of the payment on the 13th of July, and consequently no forfeiture could attach and the next of kin of Moses Strasser were under the by-laws of this lodge entitled to the funeral benefits unless he deprived himself of that right by bringing his action in the civil courts before exhausting all his remedies under the constitution and by-laws of the order.

But it is insisted that the constitution, by-laws, rules and regulations of the order require that all disputed questions arising in it must first be submitted to the lodge and an appeal taken from its determination to the district grand committee and then to the grand lodge and, unless permission be refused by that body, to the sovereign grand lodge, and that a resort to the civil court until all these remedies are invoked and exhausted shall render any right or claim to any of the benefits provided for in §§ 4, 5 and 6 null and void.

It is quite true that controversies between members of a_ lodge and the lodge itself can and should be settled or attempts should be made for their adjustment within the order, where provisions are made for such settlement by the rules, constitution or by-laws of the order. Lafond v. Deems et al., 81 N. Y., 514; Poultney v. Bachman, 31 Hun, 49.

The contract or compact under and in virtue of which members can make claims against the order for benefits must be the constitution and by-laws; to these members are deemed to have assented and so long as they are fairly and impartially executed, that a court of equity would not be authorized to intervene to correct abuses, the parties must and ought to be governed by the letter of the contract

This would clearly be so where a member of the order was seeking a benefit conferred by the constitution or by-laws of the lodge. Poultney v. Bachman, 31 Hun, 54. Does the same rule apply when the claim is made by a person not a member of the order, who can have no hearing in person before its body or access to the tribunals provided by it for adjustment of questions between its members ?

The case shows that neither the plaintiff or any of the next of kin of Moses Strasser now are or ever have been members of this order.

The remedies which the lodge and its superior tribunals have provided are by the constitution and by-laws only open to members of the society.

The plaintiff is not such a member, and does not derive title from a member, and cannot appear in the tribunals of the society and prosecute his claim, except by favor.

His right to the funeral benefit is a contract right, and since he has no right to resort to the tribunals of the 'secret organization, he has not in a legal sense failed to exhaust his remedies.

The contract provides that the funeral benefit “ shall be paid over without delay to the deceased brother’s nearest of kin.”

When this contract matures, it exists between the lodge and, non-members.

It would not be a reasonable construction of a contract between the lodge and a non-member'to hold that the non-member’s rights under it are subject to the adjudication of his adversary.

Its rules are binding upon its members, for they have so agreed; but when a member makes a contract with the lodge for the benefit of third parties, the contract must he enforceable according to its terms, and not according to the subsequent adjudication of the lodge as to the meaning of its terms.

The provisions of the constitution that benefits “ shall be dependent upon and recoverable only through the methods provided in the constitution,” must mean jhat benefits to members shall be so recoverable, not benefits to which strangers, by virtue of a contract made in their behalf with the lodge, are entitled.

His payment was due without delay.

The judgment should be affirmed, with costs.

Learned, P. J., and Landon, J., concur.


author: Brady, J.

text:
    In the Matter of the Application of The Metropolitan R. Co. Relative to Acquiring Title, etc. In re Watson and Hughes, App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Eminent domain—Railkoad—Evidence.
    Appellants recovered judgments against the petitioner in actions to restrain the operation of its road, which provided that upon payment of the damages mentioned therein, a conveyance of the easements should he executed. Held, that the judgments were not res adjudicata as to the value of the easements, and were not admissible in evidence in a proceeding to condemn such easements.
    Appeal from orders made in this matter confirming the awards, made by the commissioners appointed by the court herein and from the awards made.

      George Zabriskie, for app’lts; Edwin M. Felt and Edward S. Rapallo, for resp’t.
   Brady, J.

J.— These proceedings were commenced July 10, 1889, to condemn so much of the easements as were taken by the petitioner in the construction and operation of its road in West Eifty-third street, appurtenant to the premises known as 121 and 138 in that street, the former owned by John H. Watson and the latter, by Mary E. Hughes, the appellants herein. The questions involved in each proceeding are the same.

In 1884 and 1887 actions were brought in the superior court of this city to recover damages resulting from the unlawful use by the company and their lessee of the easements and privileges appurtenant to the property of the respective persons named which had been taken from them without compensation, and seeking the equitable interference of the court by enjoining the further use of these easements and privileges and the recovery of damages for the loss sustained. The plaintiffs were successful. An award of damages was made in each case, and the value of the easements determined, and provision in the judgment made, which was independent of the award of damages, that upon the payment of the sum mentioned in each judgment, a conveyance of the easements and privileges should be executed, the prototype of the judgment being found in the case of Henderson v. N. Y. C. R. R. Co., 78 N. Y., 423. The company in this proceeding, invoked the provisions of the general railroad act of 1850, chap. 140, which was their right, and the appellants insisted that the judgments mentioned, in which their premises respectively were the subject of contention, were res adjudicata between them, and offered the judgments in evidence before the commissioners. They were rejected, and this was the proper disposition of them according to the decision in the case of Henderson, already mentioned. It appears that damages were awarded in that case for an unauthorized appropriation of the property in question, and the value thereof having been ascertained, the judgment also provided for the tender of a conveyance by the plaintiffs of their interest in the property in controversy.

The court said, in that case, that in view of the annoyance and the expense incident to the stoppage of its trains, it was just to open the doors of escape and to permit the defendant at once to acquire title to the land occupied and thus avoid the delay incident to other proceedings for that purpose, but that it was, notwithstanding, optional with the defendant to comply with the conditions ; the plaintiffs could not require it. And again, that if the company did not accept the conditions and chose to proceed under the statute, the record of the judgment would prevent the allowance of any damages for injury to the land not actually taken, or for any cause covered by its provisions, and leave the defendant liable only for those which may be assessed for the roadway. And this is a declaration that the provision in reference to the deeds contained in the judgments offered in evidence imposed no obligation whatever upon the company, and that they could accept those terms or not as they pleased. And the same doctrine seems to been intimated, if not asserted, in Story v. N. Y. El. R. R. 90 N. Y., 122. It may be further said that the right of the company to acquire the title to lands was not in issue in the actions mentioned, but was incidentally and equitably connected with the continuance or discontinuance of the injunction prayed for. The right to damages and the propriety of an injunction were the subjects litigated, and it may be the value, but only for the purpose of ascertaining the damages, and thus it was incidental. It was upon this theory, no doubt, that in the Henderson case the suggestion of a deed was regarded as a proper exercise of equitable jurisdiction', though not compulsory upon the defendant, as a means of avoiding the necessity of proceedings to condemn the lands under the statute, and at the same time affording full protection to the owner. No error was committed, therefore, before the commissioners. The petitioner’s right to proceed under the railroad act mentioned was intact. The order below confirming the proceedings before the commissioners was, therefore, properly made, and the appeal from it is unavailing.

The order should be affirmed, with ten dollars costs and the disbursements of the appeal.

Daniels, J., concurs.