author: Dykman, J.

text:
    Julietta Perkins, App’lt, v. William W. Whitney et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    1. Trial—Postponement—Commission to examine witnesses.
    In an action to establish a will claimed to be forged, after a delay of three years to await the determination of other actions affecting said will and after the case had been set down peremptorily for trial, plaintiff, claiming to have discovered an important witness in Washington, moved fcr a commission to examine him and a postponement until its return, which motions were denied. Reid, that, in view of the importance of the witness to plaintiff, and the fact that no injury could result to defendants from a postponement for the short period required for the return of the commission, the denial of the motions was an unwise exercise of discretion.
    2. Costs—Extra allowance.
    On the dismissal of such an action no extra allowance can be granted, as there is no value in the subject matter involved upon which it can be computed.
    (Barnard, P. J., dissents.)
    Appeal from judgment and three orders: (1) The judgment dismissing the complaint herein; (2) the order denying appellant’s application for a commission to take the testimony of witnesses residing and being in the city of Washington ; (3) the order denying appellant’s application for the postponement of the trial of this cause at special term; and (4) from the order granting to the respondents an extra allowance.
    Action brought under § 1861 of the Code to establish the will of Myra Clark Gaines.
    This action was commenced -November 5, 1886, answers were interposed December 31, 1886, the judgment overruling the demurrers was entered September 3, 1887. Replies were served September 30, 1887.
    The case was noticed for argument; was adjourned a great number of times. The case was called at the special term on the first Monday of December, 1889. On the application of plaintiff’s attorney it was adjourned until the first Monday of January, 1890, and was set peremptorily for trial for that day. The first Monday of January, 1890, was the sixth day of January.
    On January 2, 1890, the plaintiff obtained an order to show cause returnable January 6, 1890, why a commission should not issue to Washington, and why the trial should not be stayed until the return of said commission. Such motion was denied, but the trial was postponed until January 8, 1890, to enable plaintiff to procure the attendance of such witnesses.
    On January 8th plaintiff appeared in court without such witnesses and made an application, on affidyavits, that the trial be postponed. This application was denied and an order to that effect was entered. Plaintiff’s attorney thereupon refused to proceed with the trial, and on motion of defendant’s attorney the complaint was dismissed.
    An extra allowance of $500 was granted by the court.

      John A. Grow, for app’lt; William T. Gilbert (Jasper W Gilbert, of counsel), for resp’ts.
   Dykman, J.

In this action we have for determination four appeals, one from the judgment dismissing the plaintiff’s complaint,, one from the order denying the motion of the plaintiff for a postponement of the trial of the action at the special term, one from the order denying the application of the plaintiff for a commission to take the testimony of a witness in the city of Washington and one from an order granting an allowance against the plaintiff in addition to costs.

We find all these appeals meritorious, but the judgment was by default and relief from that cannot be afforded by the general term. The action was commenced in November, 1886, to establish a will of Myra Clark Grain es and the trial was delayed to await the decision of actions pending in the supreme court of the United States which were finally decided in May, 1889.

The plaintiff is not alone chargeable with such delay, because it was within the power of the defendants to bring the cause to trial at any term of the court after it was at issue, and it was upon the calendar for trial until December, 1889.

Then upon the application of the plaintiff the trial was postponed but the court set the cause for trial on the first Monday of January, 1890.

On the second day of the court the plaintiff .presented an affidavit to the court in which she said among other things that two or three weeks before that time she had learned that a person whom she named, residing in the city of Washington, was an important witness for her upon the trial of this action, and she asked for the issuance of a commission to take the testimony of such witness and a postponement of the trial until the return of such commission. Both applications were denied and we deem their denial an unwise exercise of the discretion of the court.

The delay requested was but short, the testimony of the witness was important to the plaintiff and no injury could result to the defendants from a postponement of the trial for the short period required for the execution and return of the commission.

The order for an allowance was erroneous because there was no value in the subject matter involved in the action upon which it could be computed and no order of an additional allowance can be made except upon the sum recovered or claimed or the value of the subject matter involved in the action. Conaughty v. The Saratoga County Bank, 92 N. Y., 401, and cases there cited.

The orders appealed from should all be reversed, with ten dollars costs and the disbursements on all the appeals from the orders.

Pratt, J., concurs; Barnard, P. J.; dissents.


source: Caselaw Access Project

license: Public Domain

text:
    Amelia Vredenburgh, Resp’t, v. The New York Central & Hudson River R. R. Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890 )
    Railroads—Negligence.
    "When the car stopped at her destination, plaintiff, who was 55 years old, attempted to leave the car, opened the door with difficulty and was about to step from the platform when the train started, and she was thrown to the ground and injured so that she has been unable to use her right arm. Held, that the testimony was ample to support a verdict for plaintiff, and that one for $6,500 was not excessive.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial on the minutes.
    The action was for damages for a personal injury occasioned solely by the negligence of the defendant. A total loss of the use of an arm with pain continuing from the time of the injury, down to the time of the trial, six months, was a result and the jury rendered a verdict for $6,500.
    The plaintiff bought a ticket of defendant and boarded one of its trains at Tarrytown and proceeded to Croton. When approaching the station, the plaintiff and her daughter arose and went to the door of the car in which they were and opened it The train then stopped and the plaintiff attempted to get off. Ro train hand was near. As plaintiff reached the last step and was in the act of stepping to the ground, the car started with a violent jerk, and threw the plaintiff to the ground and she was dragged some distance while holding the rail for support. Finally her hold was loosened by the force of the movement of the car and she was held down on the ground by two men in order that she, in her excitement, should not be struck by the train from which she alighted or one which then passed from the opposite direction. The daughter had no time to alight and was carried to the train yard, above the station, from which she walked back and found her mother.
    In being thrown from the train and being dragged along the ground, the plaintiff received her injuries.
    Plaintiff was a nurse, earning from seven to eight dollars a week, but since the accident has been unable to dress herself, ■ comb her hair, or do any work, thus necessitating the attendance of another person to take care of her.
    Anna Vredenburgh, daughter of plaintiff, says that the door was open, and her mother stood in it when the train stopped; that she offered to get off ahead, but her mother said that she could get -off herself, and went right down the steps lightly and alertly, as passengers usually do, but looked up and down. The train only stopped for an instant.
    Other passengers testified that they had time to alight, and walk away without noticing the accident.

      Calvin Frost, for app’lt; Irving Brown, for resp’t.
   Dykman, J.

This is an appeal from a judgment entered upon a verdict in favor of the plaintiff, and from an order denying a motion to set aside the verdict on the minutes of the court.

The action is for the recovery of the damages resulting from injuries received by the plaintiff while a passenger on the railroad of the defendant.

The plaintiff, with her daughter, entered the car of the defendant at Tarrytown, to be carried to Croton, and as the train slowed up or stopped at Croton, she arose and went to the door of the car, which she opened with difficulty, and stepped on the platform, and as she was about to leave the steps and alight upon the ground the 'train was started and she was precipitated to the ground.

The defendant upon the trial made but slight controversy respecting its own negligence, but insisted that the plaintiff contributed her own negligence to the production of the accident

Both questions were submitted to the jury under a charge somewhat severe against the plaintiff, and yet the jury gave her the verdict. We cannot say the testimony was insufficient to justify the verdict, and on the contrary we find it ample for that purpose.

Complaint is made of the verdict, but it is not so large as to evince the presence of passion or prejudice, and if the jury believed the testimony introduced by the plaintiff respecting the extent and permanency of her injuries, we can very well see how the verdict was made as it was.

We find no reason for interference" with the verdict, and the judgment and order should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


text:
    Oliver T. Nanny, Resp’t, v. Mary A. Fancher, Sarah A. Wilson, Rensselaer Fancher and Rachel Fancher, Impl’d, App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    Specific pebfokmajstce—Contbact to sell laud.
    Plaintiff’s wife and the appellants conveyed certain land to defendant Amzi Fancher, by deed, excepting their interest in the dower of the widow of Henry Fancher, their father, which deed contained an agreement to convey the same at the death of said widow at a certain price per acre. Plaintiff’s wife died, leaving a will by which she gave, him all her personal property and all she had in expectancy from her father’s estate and named him as executor. Beld, a case where equity would decree specific performance of the agreement, all persons interested being before the court.
    Appeal from order and interlocutory j udgment overruling the demurrer of defendant, Mary A. Fancher, and a separate demurrer of defendants Sarah A. Wilson and others to plaintiff’s complaint.
    The complaint alleges in substance: That Juliette Nanny, deceased, in her lifetime, and" the defendants, Mary A. Fancher, Sarah A. Wilson, Susan Fancher and Rensselaer Fancher, en-' tered into a contract with the defendant Amzi L. Fancher, in October, 1869, for the sale of a farm in the town of Warwick, Orange county, N. Y.; that in pursuance of said contract they conveyed to him by deed in March, 1870, the equal undivided two-thirds of the farm, and that by the contract and deed they agreed to convey the ‘remaining one-third upon the death of their mother, Maria Fancher; that thereafter Susan Fancher married Charles Thompson, and died intestate, without .issue, and that Charles Thompson was duly appointed administrator, etc. ; that after that, and prior to Maria Fancher’s death, Juliette Nanny died, leaving a last will, whereby she “ bequeathed all her personal property of whatsoever name or kind she was possessed of, and also all "she had in expectancy from her deceased father’s estate, to her husband, Oliver T. Nanny,” and named her husband the executor of her will; that this will was duly admitted to probate ; that Maria Fancher has died, and that plaintiff is the husband of said Juliette Nanny, deceased. The prayer for relief is, among other things: “First: That it maybe determined that plaintiff is the owner of all the rights and interests which the said Juliette Nanny had at the time of her death in the real estate described in said deed, or in the proceeds of the sale thereof; Second, That on the death of the widow the defendant Amzi Fancher became entitled to a further deed of one-third of the property; and Third, That a specific performance of the foregoing contract may be decreed. ”
    The demurrers are put upon several grounds:

      First. That plaintiff should have brought suit in his representative capacity and not personally.

      Second. That all of the vendors should have been parties plaintiff ; and

      Third. That the complaint does not state facts sufficient to constitute a cause of action.
    The opinion at special term was as follows:
    Barnard, J.—The legal effect of the agreement seems to be that the one-third of the farm was not conveyed by the deed. The agreement excepted the dower right and the deed was also accompanied by an agreement that the several heirs would sell the same to the “ party of the second part,” the grantee, “ on the death of the said vendor.”
    This one undivided third in the farm was reserved as a security to the widow during her life, with remainder to the heirs. The plaintiff is entitled to his deceased wife’s share in this land. The will devises all “ expectancy ” from her father’s estate, and if I am right in the conclusion that the undivided third was reserved, it was an “expectancy.” The plaintiff is therefore a proper plaintiff. He owns title and sets up the evidence of it, which he was not strictly bound to do. The purchaser is entitled to a complete title, that is to a deed for all the interests in this one-third. . The action is therefore well brought, and the demurrer to the complaint is overruled, with costs.

      M. K Kane, for app’lt Mary A. Fancher; K A. Brewster, for app’lts Sarah A. Wilson et al; Bacon & Merritt, for resp’t.
   Dykman, J.

This is an appeal from a judgment in favor of the plaintiff upon a demurrer to the complaint, and we think the judgment must be affirmed.

The action is substantially for a specific performance of a written contract, and all persons interested are made parties. There is no difficulty in administering full relief to all, and it is a case where equity will decree a performance of the agreement.

We think also the plaintiff may maintain the action:

Order overruling demurrer to complaint and judgment thereon affirmed, with costs.

Pratt, J„ concurs ; Barnard, P. J., not sitting


author: Barnard, P. J. Pratt, J.,

text:
    Edward J. Curtin, App’lt, v. William H. Curtin et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    Trusts—Specific performance.
    In order to save the life estate of their mother on a foreclosure it was agreed that plaintiff should pay the amount required by the terms of the sale, and the balance raised by mortgage on that and other land of plaintiff which had been deeded to defendant, and defendants agreed to convey to plaintiff on request. The referee’s deed was made to defendant’s wife without her knowledge, and she afterwards deeded to her husband, and the mortgage was given, which was afterwards paid by plaintiff, who remained in possession. In an action to compel a" conveyance, Held, that the case was not within the statute forbidding resulting trusts, and that specific performance of the agreement to convey should be decreed
    (Pratt, J., dissents.)
    Appeal from judgment of special term dismissing complaint.
    Action to have a deed of lands to defendants declared to be held in trust for plaintiff, and to compel a conveyance of said lands to him.

      A. J. Spencer, for app’lt; Horace Graves, for resp’ts.
   Barnard, P. J.

Margaret Curtin held a life estate in a piece of real property in Brooklyn, under the will of her husband. There was a mortgage upon it, which,was foreclosed, and a sale-made under the decree. At the sale the plaintiff procured the title to be taken from the referee to Carrie F. Curtin, defendant’s wife, and the plaintiff paid the consideration. Came F. Curtin was not present at the sale, and had no knowledge that the title was taken in her name. She subsequently discovered this fact, and conveyed the property to her husband, William H. Curtin, who had knowledge of all the facts. The question is whether the plaintiff can get the land. The plaintiff and the defendant Wm. H. Curtin are brothers, sons of Margaret Curtin and of her deceased husband, under whose will the life estate was devised to her. They are also both executors of, his will. The statute under which the defendant claims to hold the property is as follows:

“ Where a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made, but the title shall vest m the person named as the alienee in such conveyance, subject only to the provisions of the next section.” 1 R. S., 728, § 51.

That section saves the rights of creditors only; but in this case the interests of the creditors of plaintiff were not affected. The object of the transaction seems to have been to save the property for the mother, and the agreement was that the plaintiff should pay the money needed to meet the terms of sale and the balance was to be secured by mortgage upon the same and other property. This other property had been deeded by the plaintiff to his brother, the defendant, and had been re-deeded to plaintiff. To enable the defendants to execute a mortgage on this, this deed back to plaintiff, which was not recorded, was mutilated by cutting out the name of the plaintiff as grantee, and thus putting the title back again. The defendants acted under this view of the law of the transaction, gave a new mortgage and this mortgage the plaintiff subsequently paid in full. The plaintiff went into possession of the premises and continued there since. I do not think the case one which is covered by the statute. Assuming that the defendant Carrie F. Curtin could keep the title if the plaintiff had paid the whole purchase money, he did not pay but a small per cent in money and the agreement then comes in between the wife and the two brothers that the plaintiff’s property should be mortgaged by them because they appeared to have the record rights to do so, and that they would convey the property got at the foreclosure sale to the plaintiff on request. The case is one for a specific performance of a contract in equity.

Especially is this so where it was part of the agreement that the mother was to have a life estate in the property after the purchase at the foreclosure sale. It would work a fraud if the contract was not executed as the parties made it, even though it was not in writing.

The judgment should be reversed and a new trial granted, with costs to abide event.

Dykman, J.', concurs.

Pratt, J.,

(dissenting.)—This case comes squarely under the statute forbidding resulting trusts. 1 Rev. Stat, 728, § 51. The plaintiff paid for the land and directed it to be struck off and that a deed be delivered to Mrs. Curtin. Such deed was delivered to and accepted by her and she afterwards deeded the property to the defendant W. H. Curtin; the latter therefore became and is now the absolute owner of the premises. So far as appeared the plaintiff had no interest in the property at the time of the purchase and sale and Mrs. Curtin had never assumed to bid at the sale or to take title as against the 'plaintiff.

Whatever may be said of the morality of this transaction' it is clear in law that this action cannot be maintained.

Neither of the defendants were guilty of any fraud in pro■curing the "deed from the referee nor does it appear that any •agreement ever was made for a reconveyance to the plaintiff.'

Judgment, affirmed, but without costs.

Judgment reversed, and a new trial granted, with costs to •abide event


author: Barnard, P. J.

text:
    Edward J. Curtin, Resp’t, v. William H. Curtin et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    Deed—Reconveyance.
    Plaintiff, to avoid claims of creditors, conveyed real estate to Ms brother, defendant, ■without Consideration. Subsequently the brother reconveyed to him, but afterward, with plaintiff’s consent, mutilated the deed by cutting out his name, under an agreement to give a new deed when certain payments were made, but conveyed the property to his wife, whom he had married in the meantime. Held, that plaintiff was entitled to a decree that defendants execute a new conveyance to him.
    Appeal from judgment decreeing the cancellation of a deed made by plaintiff to defendant conveying certain real nrooerty at Gravesend and a reconveyance thereof to plaintiff.

      Horace Graves, for app’lts; A. J. Spencer, for resp’t.
   Barnard, P. J.

The real estate in question was deeded by the plaintiff to his brother, William H. Curtin, without consideration, and with the intent to interpose a title against a claim held by another brother or by his general creditor. If there were no other facts to be considered, the case would be a plain one where a court of equity would not aid the plaintiff in a recovery of the property A deed, however, was given by the defendant William H. Curtin to his brother Edward J. Curtin, about a year after he received the title from plaintiff.

The defendant William H. Curtin was then unmarried. This •deed was delivered to the plaintiff and by him left for record in the register’s office of Kings county. The effect of this conveyance was to vest the title again in the plaintiff, for there is no principle which prevents a fraudulent vendee from reconveying the property to the fraudulent vendor. The title never again got in the defendant William H. Curtin. He subsequently obtained the consent of his brother, the plaintiff, to cut out or otherwise mutilate his name which was upon the deed, but this act neither destroyed the plaintiff’s title or transferred it to the grantor again.

The defendant, Catharine F. Curtin, has no better right than her husband. The complaint avers that she claims an interest in the property derived from her husband and she denies this in her answer. The complaint avers that the wife’s interest was taken with full knowledge of the facts, and she denies this but sets up no claim whatever. The proofxof the deed from her husband to herself, under the pleadings, gave the wife no rights under this recording act as a purchaser for value and without notice of the plaintiff's rights, and the court was justified in the finding that her deed from her husband gave her no title as against the plaintiff. The decree that the defendants give a deed in the place of the one destroyed was reasonable and proper. The proof shows that the defendant, William H Curtin, destroyed his deed for his own purposes and benefit and under a purpose to give a new one. There is no question under the statute of frauds as to fraudulent conveyances as to the arrangement, and there is no reason why the defendants should not carry it out.

The judgment should, therefore, be affirmed, with costs.

Pratt, J., concurs; Dykman, J., not sitting.


author: Bradley, J.

text:
    Mary Cluff, App’lt, v. Henry S. Day et al., Resp’ts.

      (Court of Appeals, Second Division,

      Filed January 14, 1891.)

    Executors and administrators—Surety on executor’s bond—Extent OF LIABILITY.
    By the will of Burgess Oluif certain property was devised “in trust” to one Tower, Ms executor, who was directed to convert it into money and invest the proceeds in good securities and pay the income to testator's widow, after her death dividing it among her cMldren, etc. Upon the widow’s application for a final settlement of Tower’s accounts as ex- cutor a decree was made in November, 1873, wherein he was charged with a. , balance of about $10,000, which it was decreed “said executor retain, invest and keep invested * * * according to the trusts and provisions contained in said last will and testament.” In 1886, on application of plaintiff for a further accounting, it was adjudged that Tower pay into court $10,000 and about $2,000 to the plaintiff as income, which he failed to do. Held, that the sureties on Tower’s bond as executor were liable, as he had done nothing to change his relation from that of executor to trustee, nor had he been discharged by the surrogate.
    Appeal from judgment of the general term of the superior court of the city of New York, affirming judgment entered on decision of the special term dismissing the complaint.
    The action was brought upon the bond executed by the defendants as sureties for Edward E. Tower, made by him as executor of the will of Burgess Cluff, deceased; which contained the following provisions:
    “ First. I give, devise and bequeath all my property of every name or nature whatsoever unto 'Edward E. Tower, of the town of Cohasset, in the state of Massachusetts, to be held by him in trust, nevertheless, for the following purpose and no other,” to wit: To convert the property into money and invest the same in good securities and pay the interest from time to time to his widow (the plaintiff), and after her death to divide it among his children. And lastly, he appointed Tower executor of the will. The testator died in 1871, and letters testamentary were issued to Tower. In a proceeding on her application had before the surrogate for final settlement of his accounts as executor á decree was made in November, 1873, whereby' he was charged with a balance of $12,222.98, which it was decreed “ that the said executor retain, invest and keep invested * * * according to the trusts and provisions contained in said last will- and testament.” This amount was subsequently reduced by modification of the decree to $10,037.98.
    In 1886, on the application of the plaintiff for á further accounting in the surrogate’s court, it was adjudged that Tower forthwith pay into the court $10,037.98 principal of estate, and to the plaintiff $2,050.76, the balance due her as income, that he pay a specified amount charged against him for costs into the surrogate’s court. He failed to pay as directed. His letters were revoked, and this action followed.

      Edward B. Whitney, for app’lt; Eugene D. Hawkins, for resp’t.

       Reversing 14 N. Y. State Rep., 729.

   Bradley, J.

The action was brought under § 2609 of the Code of Civil Procedure, and the plaintiff in the complaint alleges the decrees of the surrogate made upon the accounting of Tower in 1873, and in 1886, and that at the time of the former he did not set apart anything to represent the balance charged against him by the decree, and made no investment of the trust fund pursuant to it, and that he disobeyed each and both of such decrees of the surrogate. The defense rests mainly upon the alleged ground that the effect of the decree of 1873 was to terminate Tower’s duties as executor, and that thereafter his functions were those of trustee only, in respect to the estate; and therefore the defendants as sureties in his bond as executor were no longer responsible for his administration of it. If these premises are correct, such conclusion necessarily follows, because the decree of 1873 remains unimpeached, and as between the parties is conclusive as to the matters within the scope of its determination. That decree purports to and does represent a final accounting of the executor as such, and by it he was charged with a balance, as afterwards modified, of upwards of $10,000. The question presented" here is, whether the executor as such was discharged by the decree of 1873. If he was, the decree of 1886 must be treated as made upon an accounting by Tower as trustee, and if not so discharged, it was within the jurisdiction of the surrogate to require and to take his accounting as executor, although it would not go back of the former decree as to the state of the account, but would have relation to the time and transactions subsequent to it. In re Hood, 90 N. Y.. 512; In re Soutter, 105 id., 514; 8 N. Y. State Rep., 6. And then liability upon the bond would arise from the failure of the executor to obey the decree of 1886. The former decree did not, in express terms, discharge the executor. The investment and its continuance would seem to call into exercise the functions of a trustee, rather than those of an executor, and it was in view of that purpose that he was directed to retain it, but his retention of it was not necessarily the act of a trustee as distinguished from that of an executor.

The question became one of construction and effect of that provision of the decree, and upon that subject it may be well to consider the question in the light of the authorities having some relation to it. In Laytin v. Davidson, 95 N. Y., 263, the will referred to contained provisions requiring the exercise of functions executorial, and those of a trustee. A final accounting of the executors was had before the surrogate, and by the decree the amount of the capital of the estate remaining in their hands was determined, and they were directed to retain and hold it “as trustees under the last will and testament ” of the testator. The -court, in the opinion delivered by Judge Andrews, said: “ The •decree did not in terms discharge the executors, but this was the reasonable intendment and legal effect of the direction that they should retain and hold the whole balance of the estate as trustees under the will. The fact that the trustees have not made an actual division of the trust fund into shares as directed by the will does not, we think, change the question. * * * The executors have upon a final accounting as executors been discharged as such. The fund has become exclusively a trust fund under the will to be held by the trustees,” etc. Our attention is also called to Matter of Estate of Hood, 98 N. Y., 363, where there was a final ■accounting of the executors, and the decree of the surrogate directed “that the balance of said moneys, being the sum of $53,710.69, said executors shall hold and invest pursuant to the powers in said last will and testament,” and it was held in a pro-needing to revoke the letters testamentary of one of the executors that he, as such, was not discharged by that decree, and in the opinion of the court, delivered by Judge Miller, it was said that, in the absence of any direction in the will that the executors •should become trustees, no reason exists why the executor, whose account was settled, should not continue to act in that capacity. When the decree was made he was clearly an executor, and held these funds in his hands, and was liable for the same as such,” and “ even if, under the will, it was possible for the executor to have become a trustee, he could not have done so until there had been a final accounting, and a discharge by decree of the surrogate from his position as executor, or by direction in the decree that he take and hold the property as trustee as distinct and separate from his functions as executor.”

And added that “at the time of the decree the executors had not fully performed their functions, and their duties had not terminated. This fact is a complete answer to the position that the executors became trustees after the decree of the surrogate.” And remarked that the Laytin case was not adverse to such views, as “trusts were there created under the will, and the decree •of the surrogate directed the property to be held by the executors as trustees.” The ground of distinction, founded solely upon the decrees of the surrogate in the two cases cited seems to be in the use in the one and absence in the other of the word “ trustee " as relating to the character in which they should retain and invest the fund. But back of those decrees.and in reference to the wills it is said that a period of time was contemplated by the testator in the Ljaytin case when the duties of the executors as such would •end and they should assume the character of trustees only, which was not applicable to the will in the Hood case. The fact, however, remains that in the latter case the direction to invest applied to all the property remaining in the hands of the executors, and allowance was made to the executor Hood of his commissions.

The Matter of Hood, 104 N. Y., 103 ; 5 N. Y. State Rep., 501, again came up on appeal from an order directing him as late executor to render an account before the surrogate, and in referring" to the former review, Judge Finch, in speaking for the court, said : “We then held, passing by the inquiry whether under the will it was possible for him to exchange the character of executor for that of trustee, that he had not effected such exchange, and remained executor only, and removable as such for his misconduct in that capacity. We pointed out that on the accounting in 1869 be was not discharged, was not directed to hold the remaining assets as trustee, was not credited with such transfer and his account thereby balanced, but the decree entered directed as to the assets remaining that the said executor shall hold and invest pursuant to the-powers and directions contained in said last will and testament. There had been no payment to the defendant as trustee, no new account opened and kept in the new capacity,, and no separation or division of' the fund allotting to the beneficiaries their exact and specific proportions.”

These views tend to illustrate the principle of the decision of the court on the former review, and they seem to indicate that to some extent, at least, the distinction between it and the Laytin case was in the direction given by the surrogate’s decrees.

In Matter of Willets, 112 N. Y., 289 ; 20 N. Y. State Rep., 735, it was held that it was not within the contemplation of the will that the two functions of executors and trustees were to co-exist, but that those of the former were to first be executed and the latter to follow. The surrogate settled their accounts as executors and ordered them out of the “balance of principal in their hands to pay to themselves as trustees ” a sum mentioned. It was held that their functions as executors then terminated and they assumed those of trustees. That case came fairly within the doctrine of the Laytin case.

In Johnson v. Lawrence, 95 N. Y., 162, where the indication in the will was that the two functions might co-exist, and that no separation of them was contemplated, the court said that “ taking the adjudged cases together, they appear to establish that to entitle the same nersons to commissions as executors and as trustees the will must provide, either by express terms or by fair intendment, for the separation of the two functions and duties, one duty to precede the other, and to be performed before the latter is begun, or substantially so performed, * * * and that where the will does so provide 'for the separate and successive duties, that of the trustee muist be actually entered upon and its performance begun either by real severance of-the trust fund from the general assets, or a judicial decree which wholly discharges the executor and leaves him liable only as trustee.” And on the subject see Hall v. Hall, 78 N. Y., 535; In re, etc., Mason, 98 id., 527; Phœnix v. Livingston, 101 id., 451.

In all these cases except that of Hood the controversies were in respect to commissions and whether the executors and trustees were entitled to them in both capacities, and more especially in the latter. And to entitle them to commission also • as trustees it must appear by the will that the separation of the two functions was clearly intended by the testator and has been effected, or that the office of executor has been terminated by the discharge of him as such by the decree of the surrogate, made upon his accounting, whereby the matters of the testamentary trust solely are devolved upon him as trustee.

In the present case the trial court found that at the time of the accounting in 1873 Tower had in his hands the money charged in the decree. This must be assumed, as the fact does not necessarily appear to the contrary, and therefore no charge for any devastavit prior to that time arises for consideration, and as the executor was not by the express terms of the decree discharged, the determination of the question presented is dependent upon the nature of the functions which he was, after the decree, permitted to exercise in respect to the fund. It may be observed that all the property of the testator was devised to Tower, “to be held by him in trust,” and he was directed to convert into money, invest it, pay the income to the plaintiff and after her death to divide it among his children. Tower was appointed executor to execute the provisions of the will. The duty of investing the fund and disposing of the income and finally of the principal was that of a trustee. But Tower took the, estate in his hands as executor, and the decree directed “ that the said executor retain, invest and keep invested the balance remaining in his hands * * * according to the trusts and provisions contained ” in the will. Those provisions were for investment, payment of income and final distribution. He could retain the fund as executor as directed by the decree, although the investment and what followed would be within the functions of a trustee. He made no investment and did no act indicating that he treated the fund as held by him in any capacity other than that in which he had received it. It is true that as a general rule when the same hand is to pay and receive, what is required by law to be done to accomplish' it will be deemed done, but it is entirely consistent with the decree that the fund be retained by him as executor until he should take •an opportunity to invest it, and the transfer to him as trustee would be evidenced by the investment. The decree did not, as in the W ilkts case, direct him as executor to pay the fund to himself as trustee, nor, as in the Lay tin case, to hold it as trustee. The only practical effect of the decree was a settlement of the accounts of the executor, and it would have had the same effect for all the purposes to which it was entitled as made, if it had stopped with the adjudication of the balance against him as such, and directed the payment of the costs and expenses of the proceedings as it did. The duty in respect to the investment, etc., was given by the will.

So the case may be treated as if no direction had been given by the decree in that respect. Could it be effectually said that from the time of a mere adjudication of the settlement of the accounts of the executor he ceased to hold the funds as such? It seems quite clearly not until he had in some manner done something to change his relation to it. In such case, as said by Judge Finch in Johnson v. Lawrence, the duties of the trustee must be actually entered upon and performance begun, or the executor be wholly discharged by the decree of the surrogate. Neither was done in this, instance, and assuming that the fund remained on his hands at the-time of such accounting nothing appears to divest him of the relation of executor to it. The decree does not import his discharge as such; nor is a forced or doubtful construction justified for the purpose of giving to it such effect. In the PJuznix case the trustees actually entered upon the performance of their duties as such, and as the executor in the case at bar was not discharged by the decree, nothing appears to warrant the conclusion that his functions as executor were terminated in respect to the fund. If these views are correct, the surrogate had jurisdiction ‘to take the accounting of the executor and make the decree of 1886, and it must be treated as made upon the accounting of Tower as such. This is consistent with the provisions of that decree; and it was in that view that the application was entertained by the surrogate for the revocation of his letters testamentary, and decree made accordingly. The exceptions, therefore, to the finding of the trial court that the-executor was discharged by the decree of 1873, and to the conclusions of law which followed, were well taken. These views render it unnecessary for the purposes of this review to consider any other question.

The judgment should be reversed and new trial granted, costs, to abide the event.

All concur.


author: Brown, J.

text:
    John A. K. Duval, App’lt, v. Horace B. Wellman, Resp’t.

      (Court of Appeals, Second Division,

      Filed January 14, 1891.)

      1. Marriage brokerage—Restitution on money paid on.
    Marriage brokerage contracts are void; but where the parties are not in pari delictu the courts will restore them to their original position.
    3. Same.
    The natural tendency of a business to promote marriage is immoral, and it is so clearly the policy of the law to suppress it that courts will aid the party who has patronized it by relieving him or her from all contracts-made, and grant restitution of any money paid or property transferred to-the broker.
    3. Same.
    Plaintiff’s assignor, a widow, after seeing defendant’s advertisement, went to his office, paid a fee and was introduced to several gentleman. Thereafter she paid defendant fifty dollars and took from him a paper stating that amount was due her if by a certain time she was willing to give up acquaintance with gentlemen introduced by defendant; but if she was married to any such gentleman fifty dollars more was due defendant. Held, that the court below erred in holding as a question of law that both parties were equal in guilt; but it was a question for a jury.
    Appeal from an order of the general térra of the court of common pleas of the city of New York, which reversed an order of the general term of the city court, which reversed an order of the special term of said court, which denied a motion for a new trial.
    The facts appear in the opinion.

      William K Mundy, for appüt; B. W. Newhall, for resp’t.
   Brown, J.

The record before us does not contain the pleadings, and we are not informed of the grounds upon which the plaintiff therein based his right to recover. The case has, however, been disposed of in defendant’s favor in the court below, on the ground that the contract between the parties, upon which the money was paid was illegal, and that the plaintiff's assignor was particeps criminis and equal in guilt with the defendant. But whether the cause of action was based upon the contract or upon the illegality of the contract, and in disaffirmance thereof, does not appear.

The questions discussed in the lower courts have, however, been regarded, as of sufficient'importance to receive the consideration of this court, and as they were the only ones discussed at our bar we may confíne our observations to them without regard to the particular issue made by the pleadings.

It appears from the evidence that the plaintiff is the assignee of Mrs. E. Guión,- a widow lady, who, in her search for a husband, sought the advice and aid of the defendant, who was the owner and publisher of a matrimonial journal called The New York Cupid, and the proprietor of a matrimonial bureau in New York city.

Mrs. Guion’s testimony was to the effect that in June, 1886, she became a patron of the defendant’s establishment and paid the usual registration fee of five dollars. That she was introduced to thirty or forty gentlemen but found none whom she was willing to accept as a hnsband, and that in June, 1887, for the purpose of stimulating the defendant’s efforts in her behalf she paid him fifty dollars, whereupon there was executed the following instrument :

"■June 2,1887.

“Due Mrs. Guión from Mr. Wellman, fifty dollars ($50.00), August 15th, if at that time she is willing to give up all acquaintance with gentlemen who were introduced in any manner by H. B. Wellman. If Mrs. Guión marry the gentleman whom we introduce her to, an additional fifty dollars ($50.00) is due Mr. Wellman from Mrs. Guión.

(Signed.) “ H. B. Wellman.

“E. Guión.”

In August, 1887, Mrs Guión, not finding a congenial companion among any of the men to whom she had been introduced and claiming to be willing to give up all acquaintance with them, demanded from defendant the return of the money paid, which being refused, the claim was assigned to plaintiff and this action was commenced.

The five learned judges who have delivered opinions in the case have agreed that the contract between the parties was void, and this conclusion appears to be amply supported by authority. 1 Story Eq. Jurisprudence, §§ 260 to 264; 2 Pomeroy Jurisprudence, § 931; Willard’s Jurisprudence, 211; Bacon’s Abridgment, title Marriage and Divorce, D.; Eonblanque’s Eq., chap. 4, '§ 10; Boynton v. Hubbard, 7 Mass., 112 ; Crawford v. Russell, 62 Barb., 92.

Judge Story, after discussing the grounds upon •which courts; of equity interfere in cases of this kind, says:: “It is; now firmly established that all such contracts are utterly void,, as against public policy, * * * and Chief Justice- Parsons said in Boynton v. Hubbard, supra-, that “these contracts; are-void *• * * because they have- a tendency to> cause matrimony to be contracted on mistaken principles and without.the-advice of friends, and they are relieved against as- a. general mischief for the sake of the public.”

The doctrine that marriage brokerage- contracts- are- void is; the-outgrowth of the views and opinions; of the English people- upon the subject of the marriage relation-,, and the courts- of England for upwards of a century have universally declared that the natural consequences of such agreements would be to bring about, ill-advised and, in many instances, fraudulent marriages, resulting inevitably in the destruction of the hopes and fortunes ®£ the-weaker party, and esjaecially of women, and that every temptation in the exercise of undue influence in procuring a marriage-should therefore be suppressed. The defendant has, however, succeeded in the lower court upon the application ©f the rule that a court will not lend its aid to either of the parties- to an illegal or fraudulent contract, either by enforcing its execution if it be- ex-ecutory, or by rescinding it if it be executed.

Public policy has dictated the adoption of this; rule, but it has its limitations, and when the parties are not equally guilty, or when the public interest is advanced by allowing the more- excusable of the two to sue for relief, the courts will- aid the Injured party by setting aside the contract and restoring him so- far- as. possible to his original position. 1 Pomeroy’s Equity, §, 403 1 Story’s Equity, § 300.

It is not sufficient for the defendant to show merely that the other contracting party is particeps criminis, but it must appear -that both are equal in guilt, unless the contract be malum in se, in which case the maxim ex dola malo non oritur actio is, of universal application.

This subject received very full consideration in the ease of Tracy v. Talmage, 14 N. Y., 162, and it was there said that unless the parties are in pari delictu as well as particeps criminis the courts, although the contract is illegal, will afford relief to the more innocent party.

Upon the application of this doctrine in Mount v. Waite, 7 Johns., 434, premiums paid for the insurance of lottery tickets were recovered, the plaintiff being held not to be equal in guilt with the defendants.

In Wheaton v. Hibbard, 20 Johns., 290, it was held that usurious interest paid by a borrower could be recovered independent of the statute, and that the maxim inter partes in pari delictu potior est conditio defendaniis did not apply, as the law considered the borrower the victim of the usurer; and Lord Mansfield laid down the rule that in transactions prohibited by statute for the protection of one set of men from another set of men, the parties are not in pari deliciu. Browning v. Morris, 2 Cowp., 790. See, also, Schroeppel v. Corning, 6 N. Y., 107, 115, 116.

It will appear from an examination of the authorities upon this subject, a very few only of which are cited, that courts, both of law and equity, have held that two parties may concur in an illegal act without being deemed in all respects in pari deliciu.

In many such cases relief from the contract will be afforded to the least guilty-party when he appears to have acted under circumstances of imposition, hardship, or undue influence, and especially where there is a necessity of supporting public interests or a well settled policy-of law, whether that policy be declared in the statutes of the state or be the outgrowth of the decisions of the courts.

Accordingly many cases may be cited where relief has been granted from contracts which partook of the character of marriage brokerage agreements. The cases are collected in Pomeroy’s Equity Jurisprudence in a note to § 931, in Eonblanque’s Eq., B. I., chap. 4, §§ 10 and 11, and Bacon’s Abridgement, Title Mar-, riage and Divorce, 541 etseg., and need not be cited here.

In two of the cases referred to, money paid under the contract was recovered back. Smith v. Bruning, 2 Vern., 392; Goldsmith v. Bruning, 1 Eq. Cases, Abr., 89.

The question in this and kindred cases, therefore, must always be whether the parties are equal in guilt. Obviously cases might arise where this would clearly appear and where the court would be justified in so holding as a matter of law, as where there was an agreement between two, having for its purpose the marriage of one to a third party, the parties would be so clearly in pari deliciu that the courts would not aid the one who had paid money to the other in the promotion of the common purpose to recover it back. Such a case would partake of the character of a conspiracy to defraud. So if two parties entered into a partnership to carry on such a business as defendant conducted, the courts would not lend their aid to either to enforce the agreement between them.

But where a party carries on a business of promoting marriage, as the defendant appears to have done, it is plain to be seen that the natural tendency of such a business is immoral, and it would be so clearly the policy of the law to suppress it, and public interest would be so greatly promoted by its suppression, that there would be no hesitation upon the part of the courts to aid the party who had patronized such a business by relieving him or her from all contracts made, and grant restitution of any money paid or property transferred. In that way only could the policy of the law be enforced and public interests promoted.

Contracts of this sort are considered as fraudulent in their character, and parties who pay money for the purpose of procuring a husband or wife will be regarded as under a species of imposition or undue influence.

The subject is classed by all text writers under the head of-constructive or implied fraud, and it is upon the application of rules which belong to that branch of the law that the case's have been decided to which I have referred.

We are of the opinion, therefore, that it was error to hold as a legal conclusion that the parties to the contract in question were equal in guilt.

The learned general term of the common pleas appeared to have considered that the voluntary character of Mrs. Gruion’s acts was decisive of this question and deprived her of the right of recovery. It is true there is no evidence of actual over persuasion or undue influence, but at most the inferences to be drawn from these facts were for the jury. The prominent fact in the case is that such a place as the defendant maintained existed in the community with its evil surroundings and immoral tendencies.

What influence was exerted upon the mind of the widow by the mere fact of the existence of such a place to -which resort could be had, cannot of course appear except by inference. But if the evidence was not sufficiently strong to authorize the court to bold as a question of law that the parties were not in pan delictu, it at least presented a question of mixed fact and law for , the jury.

Our opinion is that the same reasons that have induced courts to declare contracts for the promotion of marriage void, dictate with equal force that they should be set aside and the parties restored to their original position. To decide that money could not be recovered back would be to establish "the rules by which the defendant and others of the same ilk could ply their trade and secure themselves in the fruits of their illegal transactions.

We are of the opinion, therefore, that the common pleas erred in reversing the order of the city court, and that a new trial should have been granted.

The order appealed from should be reversed and the order of the general term of the city court affirmed, with costs.

All concur.

       Reversing 16 N. Y. State Rep., 607.


text:
    Nathan Cobb et al., Resp’ts, v. Luke Wells, App’lt.

      (Court of Appeals, Second Division,

      Filed January 14, 1891.)

    1. Sale—Evidence.
    Plaintiffs brought this action for materials furnished upon the following order: “Messrs. Cobb & Herrick—Please let the bearer, Mr. Howe,have what materials, including patterns, he may want from your shop for one hundred pumps, and I will pay same within sixty days from receipt of goods, and oblige Luke Wells.” Upon the trial defendant offered to prove the cost per pump, including materials furnished; also, that the amount of the account in question exceeded by several hundred dollars the cost of one hundred pumps ready for the market, but the evidence was excluded. Held, error.
    3. Same.
    It was competent for the defendant, if he could, to prove that the aggregate expense of the construction of the pumps, not exceeding the prescribed number for which such materials and work were supplied and done, was less than the amount of the plaintiff's alleged claim founded upon such account.
    - Appeal from judgment of the general term of the supreme court, fourth judicial department, affirming judgment entered on report of a referee in favor of the plaintiffs.

      The action was brought to recover for materials and patterns alleged to have been furnished by Cobb, Herrick & Co. to one Howe upon an order made by the defendant in the following form:
    “ Messrs. Cobb & Herrick:
    “ Gents : Please let the bearer, Mr. Howe, have what materials, including patterns, he may want from your shop for one hundred pumps, and I will pay same within sixty days from receipt of goods, and oblige,
    “Luke Wells.”
    The business of the firm of Cobb, Herrick & Co. was manufacturing machinery, including foundry and pattern work, and the plaintiffs were assignees of the claim in question. The claim as alleged was upwards of one thousand dollars. The referee directed judgment for the amount of the claim with interest, less some payments found to have been made upon it by Howe.

      Edward H. Burdick, for app’lt; W. /S. Andrews, for resp’ts.

      Reversing 48 Hun, 616, mem.

   Bradley, J.

The liability of the defendant for the articles furnished to Howe arises upon and is limited by his order. The limitation by the terms of the order does not relate to the character or condition of the materials, but to such as Howe might want for one hundred pumps. The firm of Cobb, Herrick & Co. had a machine shop and the facilities for making and preparing' the materials for use, and the service requisite to their adaptation for use in the construction of the pumps fairly came within the import of the order. The main features of the account were for pattern work, machine work, castings and wood work. There was also a small amount for other materials.

If the preparation and furnishing the patterns and materials called for by Howe under the defendant’s order for pumps not exceeding 100 were correctly and fairly represented by the account of Cobb, Herrick & Co., as found by the referee, the defendant was chargeable with the amount of it. There is evidence tending to prove that this account was for patterns and materials prepared and furnished to Howe pursuant to his call for them; that they were provided wholly for the construction of pumps after the order was made and during a period ending with January 14, 1878; and that the pumps made by him during that time did not exceed 100 in number. Whether the defendant’s order was operative during that period, and whether the patterns and materials charged in such account were or could have been prepared and furnished for or used in the construction of that number of pumps, were facts controverted by the evidence on the part of the defendant to the effect that the order was not made until a year after the time it purported to bear date and that the materials so charged and allowed by the referee were largely in excess of those requisite to or used in the construction of 100 pumps. There was, however, evidence tending to support the finding of the referee and the comparative weight of it is not here for consideration. The account of materials and of the work of preparing them, and the patterns was, as were «other accounts, entered and kept in books of Oobb, Herrick & Co., and for details of the account in question reference was made to such entries by the evidence. The books were received in evidence subject to the exception of the defendant. There were weight books and time books, so called, and another to which the entries on those books were taken. To prepare the way for the introduction of these books, it was proved that the bookkeeper daily weighed the iron and took an account of the work and made the entries in' the books and in respect to the correctness of the items so taken by him and as to whose accounts they were applicable, the evidence of the foreman having charge of the work and employes in the shops were given as well as that of some of the members of the firm by way of verification of the charges as so entered, and further evidence of persons who had made settlements with the firm of their accounts upon the books was given bearing upon the character or correctness of the accounts kept upon them.

The firm had in their service a large number of workmen, and it was the duty of the bookkeeper, aided by the foreman, to ascertain what the work was and for whom it was done, and make entries of it daily in the boobs. The method by which the evidence tended to prove this was accomplished was such as to render competent as evidence the entries in the books within the rule applied in Mayor, etc., of N. Y. v. Second Avenue R. R. Co., 102 N. Y., 572 ; 2 N. Y. State Rep., 526; West v. Van Tuyl, 119 N. Y., 620 ; 28 N. Y. State Rep., 549 ; In re McGoldrick v. Traphagen, 88 N. Y., 334, and the question of its weight was for the referee.

Mr. Howe was the inventor of what was called a three cylinder pump and of one later known as a two cylinder pump, and there was evidence tending to prove that they were the only kind of pumps for which materials were furnished by Cobb, Herrick & Co., within the -time before mentioned. Then the defendant offered to prove the cost per pump of the former, including all the materials furnished for and the work done upon them by that company during the period from June 1, 1877, to January 14, 1878 : also, that the amount of the account in question exceeded by several hundred dollars the cost of one hundred pumps ready for the market. The evidence was excluded upon the plaintiff’s objections, and exceptions were taken, and a like offer and r-uling and exception were made and taken in respect to the two cylinder pump. There was evidence to the effect that besides putting the prepared materials together, the painting of the pumps constituted substantially all the work of completion. The witness appeared to be qualified to give the evidence, and the offers were in such form that it must be assumed that, if admissible, the facts would have been proven in a proper manner. The controversy had relation to the quantity of materials and the extent of the work performed by that firm within the limits of the defendant’s order, and,, upon that subject there was a conflict in the evidence of the parties. The account upon which the plaintiffs sought to recover consisted of numerous items for both materials and work in preparing them. The question was not simply what was furnished and done for Howe, or for him and Cowles, who .was interested with Howe in the business, but for what the defendant was chargeable by virtue of his order, and that depended upon the call made upon Cobb, Herrick & Co. for and the supply by them of materials and services within the limitation of the order. This was measured by number of pumps.

It would therefore seem proper to prove the cost to Howe and Cowles of all the materials and work supplied and performed by the plaintiffs’ assignors for and upon each pump. In that view it was competent for the defendant, if he could, to prove that the aggregate expense of the construction of the pumps, not exceeding the prescribed number, for which such materials and work were supplied and done, was less than the amount of the plaintiffs’ alleged claim founded upon such account. This would have been a step on the way to proof tending to show the extent of the defendant’s liability. The value of the evidence offered or the weight of it is not the subject of consideration here. It is sufficient that the evidence was competent and that the defendant may have been prejudiced by its exclusion. The ruling excluding the evidence was error.

Ho other exception appearing in the record was well taken.

The judgment should be reversed and a new trial granted, costs to abide the event

All concur, except Follett, Oh. J., and Vann, J., not sitting.


author: G-rat, J.

text:
    Sarah A. Charlock, Resp’t, v. Edward Freel, App’lt.

      (Court of Appeals,

      Filed January 13, 1891.)

      1. Negligence—Defective sidewalk—Liability of contractor.
    Defendant, in compliance with a contract with the city, in which the power was reserved to the latter “ to vary, extend or diminish the quantity of work during its progress,” had put in a sewer, hut before the repaving of the street was done he was directed by the city engineer to raise the grade. The digging away of the earth to dispose of water which had accumulated behind the curbstone during a storm left a hole into which plaintiff fell during the night. Held, that the contractor was liable and not the city.
    2. Same.
    The fact that the department or city engineer had ordered him to do this particular work did not affect the question of liability, as he had assumed its performance and was doing it with his workmen; to make the city liable the city and not the contractor must have been the master of the workmen.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment entered upon verdict in favor of the plaintiff at circuit.

      Wm. G. DeWitt, for app’lt; Charles J. Patterson, for resp’t.

      Affirming 21 N. Y. State Rep., 963.

   G-rat, J.

This is an action to recover damages of the defendant for personal injuries sustained by the plaintiff. In walking along a sidewalk of a street of the city of Brooklyn she stepped into a hole which had been left near the curb by some workmen employed under the defendant. He contested his liability for the occurrence on several grounds, but was unsuccessful, and the jury returned a verdict for damages against him. Upon this appeal the only question we feel called upon to review grows out of the defendant’s claim that in the performance of the particular work, in the course of which the injury was made possible, he was not acting as an independent contractor, but as a mere servant or agent of the city, and' that it, and not he, was legally responsible for any damages. The defendant’s contract was with the city, and it called for the construction of a sewer in certain streets. The sewer had been put in, but before the repaving of the street was done by the contractor, he was directed to raise the grade of the street at a certain intersection with another street. He undertook to do this, and after raising the curbstones, left the adjoining portions of the sidewalk flagging disarranged. The sidewalk being in this condition of disorder, and being lower than the grade of the street, a storm occurred and water collected in the spot left open by the removal of the flagstones. The.workmen dug away the earth, so as to permit the water to escape through the curb into the sewer basin. This caused a hole, into which, being left unguarded, a day or two afterwards, during the night, the plaintiff fell. As the workmen were employed by the defendant, he was responsible for the injury which occurred to plaintiff through the carelessness with which that part of the work was done and the neglect to take reasonable precaution against possible accidents. He was not in the employment or under the direction of the municipal authorities in any such sense as to exempt him from a liability for the consequences of his negligent or unskillful acts, or of those of his- employes.

It is true that the contract primarily, or principally, related to the building of a sewer in the street, but by one of its provisions the power was reserved “ to vary, extend or diminish the quantity of work during its progress,” and it was therein provided that “ the engineer shall also fix the price to be paid for all work that may be necessary to be done that is not included in the contract.” This provision may not have been obligatory upon the contractor as to work not related to, or in connection with the principal plan of his agreement, but when, at the request of the chief engineer of the city, he undertook the work of raising the street grade, the contract was thereby extended so as to include it. Coming between the completion of the sewer and the repaving of the street, and being designed to make the drainage better, it was work which was cognate in its nature to the principal undertaking, and the effect of its assumption was to continue the contract relations between the parties, with all the obligations and responsibilities that contract imposed, expressly or by legal implication.

Nor could it, in my opinion, affect the question of the defendant’s liability if the department, or city engineer, had ordered him to do this particular work, and it could not be deemed to be comprehended within any of the provisions of his contract. The contractor assumed its performance and was doing it with workmen employed by him. The direction of the city officers had nothing to do with the manner of the performance, and there was mo interference with the workmen engaged under the defendant in the detail work.

In Vogel v. The Mayor, 92 N. Y., at p. 18, Earl, J., said, referring to the cases of Kelly v. The Mayor, 11 N. Y., 432, and Pack v. The Mayor, 8 id., 222: “ The doctrine was again announced that "to make the city liable it must have the power to direct and control the manner of performing the very work in which the carelessness occurred.”

The principle of liability for such an occurrence as we have in this case, is that the defendant, and not the city, was the master of the workmen. He had the control of the execution of the work which he had been directed to perform. A duty rested upon him, therefore, to use such precautions in doing the work as to make it reasonably safe against the possibility of accidents to the traveling public. For the consequences of a neglect such as was testified to here, he became responsible. Upon the evidence we must accept the verdict as conclusively establishing the negligence of the defendant’s workmen and the plaintiff’s own freedom from fault and as, for the reasons we have mentioned, the defendant was not divested of liability for the carelessness of his men, the judgments below were right and should be affirmed, with •costs.

All concur.


author: Peckham, J.

text:
    Warren H. Lewis, Resp’t, v. The Ocean Navigation & Pier Company, App’lt.

      (Court of Appeals,

      Filed January 13, 1891.)

    Landlord and tenant — Lease—Provision that building erected REMAIN IP RENT NOT PAID—EVIDENCE.
    Defendant, in April, 1834, leased certain premises for two seasons, to plaintiff, upon which it was agreed that the latter was to erect a movable building, worth $3,000, in accordance with specified plans which he was to be entitled “to remove at the expiration of this lease if all rents and arrearages of rent shall be fully paid; if not so paid the said building shall be forfeited to and become the property of the party of the first part.” On July 13, 1885, he was in arrears for rent, and paid the defendant’s president $150 in consequence of a conversation that he said he then had with him, and in February, 1886, was in arrear $150; and in May, 1886, he was ejected by virtue of a judgment in summary proceedings, after joini ig issue on the claim that defendant had renewed the lease for another season. On attempting to remove the building, he was prevented by force from doing so. In an action to recover the building as having been converted by defendant, plaintiff offered to prove the conversation had with • the president, in consequence of which he remained in possession, but was not allowed to do so. Held, error.
    '3. Same—Waiver.
    The right of forfeiture of the building in case the rent was not fully paid at the expiration of the lease was one that might be waived by the lessor, and if the alleged conversation took place and plaintiff continued in possession in consequence thereof after the termination of the lease it constituted such a waiver. «
    3. Same—Bes ad judicata—Summary proceedings.
    Where a judgment may have proceeded upon either or any of two or more different and distinct facts, the party desiring to avail himself of the judgment as exclusive evidence upon some particular fact must show affirmatively that it went upon that fact or else the question is open for a new contention.
    4. Same—Right of tenant remaining in possession acter termination. OB’ LEASE.
    . Where there has been no acceptance of a new lease and the tenant has simply continued in possession after expiration of his term he has a right to remove fixtures, erected by him under such lease, while he remains in possession in his character as tenant.
    5. Same—Conversion.
    Defendant had claimed the property as its own, had refused to allow plaintiff to remove it and had. removed him from the premises against his-will by an officer with process, and its action amounted to a conversion, thereof.
    Appeal from judgment of the supreme court, general term,, second department, granting motion for new trial upon exceptions; ordered to be heard in the first instance at the general term after a trial had at circuit, which resulted in a dismissal of plaintiff’s complaint.

      W. G. De Witt, for app’lt; Geo. W. Roderick, for resp’t.

       Affirming 22 N. Y. State Rep., 44.

   Peckham, J.

The defendant being the owner of some land near the Old Iron Pier at Coney Island, leased the same to the plaintiff and one Tuthill, the latter of whom subsequently assigned all his rights under the lease to the plaintiff.

The lease was dated April 12, 1884, and was for the term of two consecutive seasons commencing on the above named date and to terminate with the close of the season of 1885, unless sooner determined for violation of the terms of the lease.

The lessees agreed in the lease to erect upon the premises thus leased a building which was to be strictly in accordance with plans to be first submitted to and approved by the secretary of the defendant. The lease then contained the following additional clause: “ They shall be entitled to remove said building at the-expiration of this lease if all rents and arrearages of rent shall be fully paid ; if not so paid the said building shall be forfeited to and become the property of the party of the first part.”

The lessees were to have the right to use the building for a restaurant and saloon (bar room) but for no other purpose. They agreed to pay as rent $2,000 for each season at specified times, and in stated instalments, the last payment in each year being-due July 15th.

The lessees entered into possession of the premises under the lease and built a building for a restaurant and saloon which, so far as appears, was entirely satisfactory to the defendant, the lessor. It was so built as to allow for its being taken down and carried away. It was built on blocks buried about three feet in the sand and upon these blocks posts were set add the sand filled up against them. Sills were then placed on the posts and the building erected. It was built for the very purpose of being easily and safely removed. It was shown by the' evidence to have been worth, as a movable building, in the vicinity of $3,000.

No fault is found in regard to the first season, and no complaint is made that the rent was not promptly paid.

By July 1, 1885, the plaintiff was in arrear in rent for that season, and on the 15th, which, by the terms of the lease, was the <lay when the last payment- to make up the $2,000 rent for the season was due, the plaintiff was still in arrear.' On the 13th of July he paid the president of the defendant $150 in consequence of a conversation that he said he had with him on that •day, and he thereafter paid in instalments a part of the rent, so that when the season ended he was in arrear but $150, which he paid in February, 1886. He remained in possession of the premises up to May, 1886, when he was ejected by virtue of summary proceedings commenced against him by defendant as holding over after the expiration of his term under the written lease. He joined issue in those proceedings, and claimed that the defendant had renewed the lease for another season, that of 1886. This issue was found against him, and he was ejected accordingly. At the time of his ejection, he claimed the right to remove the building ; said it was his, and he would remove when he had an opportunity to take his things. He was refused the privilege of taking .anything, and subsequently, on attempting to remove the building, was threatened with arrest, and prevented from taking it down. The plaintiff subsequently brought this action to recover from defendant the value of the building, which he claimed the defendant had converted to its own use.

On the trial the plaintiff proved a conversation which took place in July, 1885, between him and the president of the defendant, in regard to the rent The plaintiff had already testified that when one of the payments came due in July he had seen the president and said to him that he was short of money, and that the president had agreed verbally that if the boats did not run the plaintiff need only pay half rent, as plaintiff says he was doing very little business. He was then asked: “ What was said about your remaining there?” This was objected to on the ground that the proceedings before the justice were res adjudícala, and as immaterial. The objection was sustained, and the plaintiff excepted. The plaintiff then testified that in the same conversation he had with the president in July, the president told him to go on and pay the balance of his rent, and he would be able to make it up next season; the president said he could not give plaintiff a long lease, but plaintiff could stay on another year, and run it the way he was then doing; that they had no fault to find with him.

Plaintiff then says he borrowed $150 and paid it to the president on that day. He was then asked if it was in consequence of that conversation that he remained in possession there, and he said it was. This was objected to as irrelevant and incompetent. The objection was sustained and the evidence was stricken out on motion. It is not perfectly plain from the record whether the whole of this conversation was stricken out, or only that portion which was in answer to the question as to the reason why plaintiff remained in possession. Some portion of the evidence was, at any rate, stricken out, and after the record of the summary proceedings was put in the complaint of plaintiff was dismissed, substantially on the ground that no cause of action had been proved. I think it was erroneously dismissed and the evidence erroneously stricken out.

The agreement in the lease for the forfeiture of the building to-the lessor in case the rent was not fully paid at the expiration of the lease was in its nature a security for the payment of the rent.

The purpose for which the building was erected, and the manner of its erection, and the fact that it was erected by a tenant to-carry out the business in which he was embarked, and for which he had leased the premises, all tend to confirm the correctness of the conclusion that were it not for the agreement the lessee would have had the*right, in any event, to remove the building at the expiration of the lease, as being his own property, and the lessor would have had no right to prevent him from making such removal. Ombony v Jones, 19 N. Y., 234, 239, 243.

The right of forfeiture of the' building in case the rent was not fully paid at the expiration of the lease was a right which might be waived by the lessor. Whether the lessor did so waivo it or not would have been a question of fact if the evidence objected to and excluded had- remained in. If the president of the defendant told the plaintiff in July, 1885, before the termination of the lease in the middle of the following September, that he might go on and pay the balance of the rent and make it up the next summer, and that the plaintiff could stay another year, and if in consequence, and upon the faith of that conversation, the plaintiff continued in possession after the termination of the lease, and failed before that time to pay the $150 and remove the building, I think it clear that if the jury had found these facts there would have been proved a waiver of this right to insist upon a forfeiture of the building on account of the non-payment of the balance of $150 due for rent before the termination of the original lease. The most that, under such circumstances, could be insisted upon would be the payment of all rent due before the termination of the possession, in which case the right to remove existed.

' It cannot be supposed that the parties contemplated this forfeiture of the building by the failure to pay the $150 before the end of the season in September, 1885, assuming that the lessor had told the lessee he might remain in possession another year. At the least, the intention of the parties as to the waiver was upon this evidence a question of fact, and the evidence should have been retained for the purpose of submitting it to the jury.

The reason for the striking out of this evidence was, as I gather from the record, that the summary proceedings adjudication was-regarded as conclusive upon the parties, and that no evidence of a conversation in which defendant’s president agreed to let the-plaintiff remain on the premises for another year was admissible because it had been determined in those proceedings that no leasing for another year -had been made, and that the plaintiff was-holding over under the written lease in evidence.

I think this' was giving entirely to broad an effect to that adjudication in the light of the evidence then before the court. There is nothing in this record showing upon what basis the adjudication in summary proceedings was made. It may have proceeded upon the ground that no authority was shown on the part of the president to make the lease, and that there was no proof of a due ratification of it by the defendant corporation. The plaintiff here had put in a sworn answer in those proceedings in which he had claimed that his term did not expire until the end of the season of 1886, by virtue of an agreement with the landlord through its authorized agent, which he claimed the president was. The record, which adjudged that there had been no extension of the term of the original lease, and that the plaintiff was holding over after its termination, would not necessarily be inconsistent with the facts above stated by the plaintiff as to the president’s promise, and his faith in it and action upon it. And while those facts might not be sufficient to show either a valid letting by an authorized agent of defendant for another year, or a subsequent ratification by the defendant, it might yet furnish enough evidence of a waiver of the forfeiture condition in the lease to be submitted to the jury. It is true that the decision of a fact once litigated between the parties is conclusive ever afterwards. But here is simply on record an adjudication that the plaintiff was holding over after the expiration of the term of the original lease. This adjudication, may have been reached by finding that no such agreement was ever made with the president of the defendant as plaintiff testified to. It may have been reached by finding that the agreement was made, but that the president had no power to make it, and the defendant never ratified it after knowledge of its existence. If the defendant claims that the adjudication was based on the fact that no such agreement was ever made with the president, the burden lay upon it to prove it. In such a case where a judgment may have proceeded upon either or any of two or more different and distinct facts, the party desiring to avail himself of the judgment as conclusive evidence upon some .particular fact must show affimatively that it went upon that fact, or else the question is open for a new contention. Bell v. Merrifield, 109 N. Y., 202, 211; 14 N. Y. State Rep., 796; Russell v. Place, 94 U. S., 606; Cromwell v. County of Sac, id., 351. While the president of the defendant might have had no power to bind the defendant by his agreement for an extension of the term of the lease, his promise and action may have been sufficient to prevent the defendant from insisting upon a forfeiture of the building after the plaintiff had relied upon a waiver of the power to forfeit and had acted upon the faith of the same, and where he would be subjected to great damage by permitting the defendant to repudiate or revoke such waiver. The defendant might in that case be estopped by the action of its president. The estoppel might be insisted upon so far as the waiver of the forfeiture was concerned because the plaintiff might have altered his conduct to his otherwise prejudice in reliance upon it. That is, he may have left the building upon the premises after the termination of his lease, and the attempt to retain.it by reason of the forfeiture clause would damage him. The same reasoning might not apply to an extension of the term of the lease. By refusing to ratify the presi dent’s agreement, and yet permitting the plaintiff to remove his building, the plaintiff might not be placed in any worse position than if he had surrendered possession and removed his building at the end of the original term. Hence conduct which might estop the defendant from insisting upon a forfeiture or compel it to ratify a waiver thereof made by its president, may not have been sufficient to compel the recognition by it of an illegal renewal or extension of the term of the original lease by its president. The two positions might, therefore, be entirely consistent

If the evidence under discussion had been received and submitted to the jury, the fact of a waiver of this right to claim a forfeiture might have been found, and the case would then be that of a tenant, with a right to remove a fixture at the termination of his lease, holding over after such termination, and on being evicted by summary proceedings on account of such holding over, claiming and being refused the right to take such fixture with him. The defendant claims the tenant has no such right after the termination of the tenancy. He urges that the right must be exercised during the running of the term, and if delayed longer than that time, even though the tenant remain in possession, he cannot remove the fixture. I think no such absolute rule exists in this state. In Dubois v. Kelly, 10 Barb., 496, it was held that the right which a tenant has by agreement with the landlord to remove such buildings as he may erect for the purpose of his tenancy, remains with the tenant after his term expires and while he still remains in possession of the premises. In Ombony v. Jones, 19 N. Y., 234, although the opinion in the Dubois case was somewhat criticised upon the question as to what things a tenant had, in the absence of agreement, a legal right to remove from the land to which they had been affixed, yet the question as to the time of such removal (while the tenant still remained in possession), was not criticised or discussed. It has not been denied, that I can find, in any case here. The title of the landlord to fixtures which the tenant has left after the expiration of the term, and after his delivery of possession, and which the tenant would otherwise have had the right to remove, is based upon the presumption of abandonment by the tenant to the landlord. No such presumption can attach so long as the tenant remains in possession. In Loughran v. Ross, 45 N. Y., 792, it was held that where a tenant had a right to remove fixtures erected by him on the demised premises yet if he accepted a new lease of the premises including such fixtures, without reservation or mention of any claim to them, and ■entered upon a new term under the new lease, he lost the right of removal even though his possession had been continuous. The decision in that case was placed upon quite technical reasoning, supported, it is true, by some authorities, but it is not one of those cases whose principle should be extended.

The taking of a new lease where nothing is said as to the fixtures is equivalent, it is said, to a surrender of the premises as they exist to the landlord and a taking of the premises from him in the same condition, which at the end of the lease the tenant is bound to surrender. What can be said on the other side of this question has been urged by Mr. Justice Cooley in Kerr v. Kingsbury, 39 Mich., 150, and in Second National Bank v. Merrill Co., 69 Wis., 501. See, also, title “Fixtures,” Yol. 8, page 63, Am. & Eng. Enc. of Law. But where there has been no acceptance of a new lease and the tenant has simply continued in possession after expiration of his term, the fetter authority seems to be decidedly in favor of his right to remove the fixtures while he remains in possession in his character as tenant. Taylor's Landlord & Tenant (8th ed.), § 551; Penton v. Robart, 2 East, 88; Weeton v. Woodcock, 7 Meeson & Welsby, 14; Dubois v. Kelly, supra. Penton v. Robart has been somewhat unfavorably criticised in England, but the particular point in question has not been directly overruled that I have seen. Although the plaintiff was holding over subsequent to September, 1885, yet he was nevertheless still in possession by reason of the original leasing. And even in the case of Loughran v. Ross, supra, Judge Allen says .the removal may be made so long as the possession continues, although the term may have ended, if there has been no new agreement. See, also, Clarke v. Howland, 85 N. Y., 204.

There is no reason why the right should be lost before he quits possession as tenant, even though he holds over. The rule is based upon a question of public policy, which suggests that the tenant shall remove during his term, i. e., while in possession as a tenant, whatever he has the right to remove at all, so that the landlord may be himself protected and so that the tenant shall not be permitted after his surrender of possession to enter upon the possession of the landlord, or his succeeding tenant, and remove what he might have taken before, but which by leaving he has tacitly abandoned, and which the landlord may already have let to his succeeding tenant. A regard for such succeeding interests requires the adoption of a rule necessitating the removal’ of fixtures during the time of possession, but not in all cases during the running of the term.

The last claim made by the defendant is that there was no conversion of the property.

This, I think, falls with the finding of fact which, if the question had been submitted to them, the jury might have found, that there was a waiver of the right to claim a forfeiture. The officers who.had the execution of the warrant of dispossession refused to permit the plaintiff to remove the building, and this refusal was ratified by defendant, and the defendant still claims the right to retain it The plaintiff again endeavored after his dispossession to remove the building, because of his being prevented by the agents of defendant from removing it at the time he was dispossessed, but he was forbidden by the officers of the defendant from making any such attempt upon pain of instant arrest, and when he still made the attempt he was met and prevented by defendant from effecting the removal. The defendant has thus claimed the property as its own. It has refused to allow the plaintiff or his servants to remove it. The plaintiff, was himself removed from the premises against his will by an officer with process, who refused to permit him to remove it. The claim and dominion made and exercised over the property by the defendant amounts to a conversion thereof. The supreme court has so decided in a very similar case at general term, reported in 12 Abb. Pr., 393, Moore v. Wood. Judge Brown wrote the opinion, and tlie case was decided in 1860. I think it was correctly decided, and the principle applies here.

In this case the defendant has chosen to stand on what it has claimed to be its strict legal rights. It has claimed the forfeiture of a building worth $3,000, as the evidence shows, because at a certain day in September, 1885, the plaintiff owed it a balance of $150 out of a total rental of $2,000 for that season, and although such balance was paid long before the defendant took any measures to remove the plaintiff. It ought not to be a source of much regret that the right to enforce the forfeiture has passed away, and that the judgment which we must award is an absolute one in favor of the plaintiff. The defendant really loses nothing which it had any fair right to retain.

The order granting a new trial should be affirmed, and judgment absolute ordered for the plaintiff, with costs.

All concur.