author: Hatch, J.

text:
    Harrison D. Folinsbee, App’lt, v. George P. Sawyer, Resp’t.

      (Buffalo Superior Court, General Term,

      Filed May 3, 1894.)

    1. Broker—Commissions.
    A broker is entitled to commissions where he brings the owner and proposed purchaser together, and they make an agreement of purchase and sale, even though such agreement is unenforceable.
    ■&. Evidence—Broker.
    In an action by a broker for commissions, it is error to admit evidence as to negotiations between other parties respecting the sale of the property after the execution of the agreement for procuring which the commissions are claimed.
    Appeal from a judgment entered on a verdict dismissing the complaint, and from an order denying a motion for a new trial.

      Norris Morey, for app’lt; Ansley Wilcox, for resp’t.
   Hatch, J.

The plaintiff, by his action, seeks to'recover commission due him as a broker for effecting a contract of sale of real estate. The evidence relied upon to establish plaintiff’s employment is satisfactory, and clearly authorized the jury so to find. This is scarcely contended against. The real question in the case is, did plaintiff fulfill the contract which he undertook ? If so, he is entitled to remuneration. Whatever doubt existed as to what constitutes the engagement of a broker under such employment was set at rest by the decision in Sibbald v. Bethlehem Iron Co., 83 N. Y. 382, where it is stated “that the duty assumed by the broker is to bring the minds of the buyer and seller to an agreement for a sale, and the price and terms on which it is to be made; and, until that is done, his right to commissions does not accrue.” The minds must meet upon the contract to sell and the terms upon which it is made. When this is accomplished, it matters not what these terms are, or whether carried out or not, or whether the failure to finally consummate it is due to the, act of the vendor or vendee, for the broker has then fulfilled all that his contract of employment called for. Gilder v. Davis, 137 N. Y. 504; 51 St. Rep. 179; Hodgkins v. Mead, 29 St. Rep. 671; 8 N. Y. Supp. 854; affirmed 130 N. Y. 676; 41 St. Rep. 952 ; Martin v. Bliss, 57 Hun, 159; 32 St. Rep. 930. It is not of the essence of the contract that the agreement of sale should be valid and enforceable. It may be verbal or written, plain or obscure in its terms, loaded with conditions or free from any. It may raise a complete barrier to its fulfillment, if objection to some of its provisions be made; but all are unavailing to defeat the broker’s-right, he acting in good faith, if the parties have, with full knowledge, met upon a common ground, and accepted what is offered as expressive of their minds. This point was objective when the broker started, and, having reached it, nothing more remained for him to do, and with all difficulties which thereafter arise out of the meeting of the minds of the principals he has nothing to dor is affected thereby no more than an uninterested third party, so far as his legal relations thereto are concerned. Nothing is found -in Condit v. Cowdrey, 139 N. Y. 273; 54 St. Rep. 648, which opposes this view. There the court was speaking of the contract where the broker agreed to consummate a sale,—a very different contract from one undertaken to bring about a meeting of the-minds of parties upon an agreement of sale. One may never be fulfilled, and yet the broker may recover; the other must be carried out, or no compensation is due. We are therefore to see what the parties in this case did, and, measuring their legal rights-by these rules, find, if it be possible, which side the line they fall. Different views of the evidence arising makes a correct understanding of it essential.

Prior to November 8, 1890, plaintiff was engaged in a negotiation for defendant’s land as a purchaser with others. On that day defendant drew up and delivered to plaintiff an option, whereby, among other things, he gave the latter á refusal of his farm of 166 acres for sixty days at the price of §175,000, free of taxes-then existing, payment down to be not less than $10,000, and an equal sum to "be thereafter paid every six months until at least $40,000 was paid. “ The balance over and above this amount, say $135,000, more or less, to remain on bond and mortgage on long time, say from five to ten years. There shall be in the mortgage a release clause, providing in general that subdivisions of the tract of not less than ten acres each -will be released upon payment of such proportion of the mortgage as the released portion has in value to the balance, the intent being that the mortgage shall be kept good until paid; but, on the other hand, that I will not embarrass sales by demanding excessive payments upon the released portion.” The concluding clause provided: “In general it means that you have the option of taking the property at price named, details to be settled later in conformity to above understanding.” Subsequently plaintiff abandoned the idea of purchase, and thereafter acted for defendant as his agent in procuring a purchaser. This led to his bringing together Smith, Weill and defendant, when, after much discussion, these parties indorsed upon the back of the option, delivered by" defendant, and signed the same, the following:

“Buffalo, Dec. 18, 1890.
“ John H. Smith and Henry Weill hereby agree to purchase the within-described property at the within-mentioned terms and price, with the only exception that said price is changed to one hundred and fifty-five thousand dollars, and interest at five percent. G-eobge P. Sawyee.
“John H. Smith.
“Henby Weill.”

The testimony upon the part of plaintiff tended to establish that the parties reached an agreement upon the purchase price of the property, and that plaintiff proposed to draw a contract of sale; and that, as it was late, it was finally proposed that the option contract be used for that purpose, and the agreement; presently reached be indorsed thereon, which was done, and, constituted the contract of purchase. Thereupon the parties separated.

It is quite likely, if it be conceded that the parties executed the instrument indorsed upon the option without reservation, that it can be upheld as a valid contract for the sale of the land; but it is not necessary to now determine this question, and I express no opinion thereon. The question presented by this appeal is not necessarily dependent upon the fact of whether it is a valid, enforceable contract or not, but rather upon the proposition whether the parties’ minds met upon the agreement of sale as expressed therein; the one agreeing to buy and the other to sell. If they did, then plaintiff becomes entitled to recover, irrespective of the fact that indefiniteness attends upon the terms used to express that agreement. If they did not, however binding in form it may have been, yet, if the parties did not regard it as their entire contract, and it was not expressive of their minds, but they expected thereafter to make it so, no commissions were earned; and here is where the serious question arises. Weill was examined minutely and at length as to what the circumstances were attending the signing of the indorsement. Practically the whole is summed up in these words: “Mr. Folinsbee was very anxious to have that article signed, and I said: ‘That article don’t amount to anything. If you want me to sign that, I will sign it; but I will consider the matter until to-morrow at 10 o’clock, and if at 10 o’clock to-morrow you don’t hear anything you can draw up a proper contract, and it will go. If I should conclude not to go in, I will come in before 10 o’clock and let you know.’ That is all the conversation. Then I signed the contract. I didn’t suggest about binding anybody else. I said it would not bind me. It was no contract, because there was nothing to show what property it is. It would not show any contract. I said I wanted the contract binding on the other side if I went in. * * * I understood the contract was of no force—was not binding upon anybody that signed it. I made that statement right there. I didn’t consider it a contract; it was merely an option. * * * I understood by signing this agreement Smith and I agreed to purchase the property upon the terms stated inside as far as they went, but it is not conclusive. That would not bind me or anybody else.”

The jury were authorized to find from this testimony that Weill signed the indorsement with a reservation of withdrawal, which, if waived, was to result in the execution of a contract expressive of the details of the proposed terms of sale. In this regard the court submitted the question in two aspects : Did the parties’ minds meet upon the fact that the writing signed by them constituted their entire agreement of sale? Did one of the purchasers reserve the right to cancel his connection therewith the day after it was signed ? The latter proposition, upon the evidence and by concession of plaintiff’s counsel, presented a question of fact, and was properly submitted to the jury. The first is challenged, and presents the main features of controversy. Keeping clearly in view plaintiff’s contract to procure a meeting of minds upon price and terms, this matter becomes more simple and plain. The question is not one between the parties to the instrument, and cannot be governed by the same rules, in all respects, as would be applicable were this an attempt solely to enforce the contract by either of the parties to it. In the latter case it is quite clear that if it were conceded that the parties signed the indorsement upon the back of the option to take effect as a contract, then its construction would become a question of law for the court to determine, and such construction would determine the rights and liabilities óf the parties. But here the conceded fact is the one in issue, and the question to be determined. The court did not submit to the jury in its charge the question of construction of this contract as determining the rights and liabilities of the respective parties thereto. It submitted it as a piece of evidence in connection with the other evidence in the case, for the jury to determine whether'the minds of the parties had met upon any contract at all, enforceable or otherwisé. The effect of the court’s charge was that, if the parties had agreed, no matter how obscure or indefinite the terms of the contract were, plaintiff was entitled to recover. It is always competent to show by parol testimony that what appears to be a contract is not in fact a contract. Grierson v. Mason, 60 N. Y., 394; Thomas v. Scutt, 127 N. Y., 138; 38 St. Rep. 692. And. no reason suggests itself who the contract may not be used for the same purpose if its language tends to its establishment. In the present ease the contract is indefinite in its release clause and provisions for the mortgage, and its final statement is, “Details to be settled later, in conformity to above understanding.” The indorsement did not render in the least degree more certain these provisions, or lessen the force of the final clause. So far as it went, it was plain, for it definitely fixed the price and rate of interest, but it went no further. Plaintiff’s contract related to the conditions in equal degree as to the price. If from this contract, then, it was clearly apparent that there must be future negotiations with respect to its controlling features, and it in express terms reserved such questions for future negotiation between the parties, such facts became pertinent matters for consideration by the jury in determining whether or not the minds of the parties had met upon the terms and conditions of the sale. The oral testimony offered by defendant tended to establish that, not only did Weill reserve the right to withdraw entirely from the transaction, but also that, if he did not so withdraw, a contract was to be then prepared and executed by the parties. It was important testimony bearing upon such proposition whether or not such new contract was necessary, for if the one already in existence was clear, definite, and precise in all its provisions, then it would go far to overthrow such testimony, and tend with much force to establish that there must have been a meeting of minds, for all the terms were agreed upon, and there could be no necessity for another contract. The converse of the proposition is equally true, for in respect to the indefinite features of the writing it tended to support this testimony, and was consequently properly submitted to them for consideration, not for the purpose of construing its terms, and determining legal rights with respect thereto of the parties to it, but for the sole purpose of determining whether the minds of the parties had met upon the terms of a sale, or whether, ■in view of the writing and the oral testimony, they contemplated further negotiations with respect thereto upon which the minds of the parties had not yet met. This is the clear result of all the language used by the court in respect to this question. The learned judge first stated plaintiff’s obligation, and correctly, and he says the principal question is “whether the parties that were brought together agreed or understood between themselyes that there was a perfect contract entered into, or whether they understood that there were terms yet to be fixed-” Then is recited in detail what is claimed by the parties in respect of the contract, and the learned judge, continuing, left to the jury the question “whether it was understood between tfiese contracting parties that the contract was definite, or whether it was understood between them that it was a memorandum concluding them as to the price and certain terms of the sale, but leaving other matters open for further negotiation. In that view this contract would go before you just as the other evidence. It is for your consideration upon the question whether Mr. Folinsbee brought t'o Mr. Sawyer parties who were ready and willing to conclude a sale, or whether these parties did agree upon a sale, or upon the terms of a sale. In this view this contract is mere evidence for your consideration, with the other evidence in this case. If this lawsuit was a lawsuit between Mr. Sawyer as seller and Messrs. Smith and Weill as buyers, the duty might be imposed upon this court to say what the contract means; but this is not a contract directly between the parties to the suit, but is laid hold of as evidence on both sides of the different positions respectively claimed.” The court thus clearly, distinctly, and correctly, as I view the case, specified the purpose of the submission of the contract to the jury, its character as evidence, and the question on which it bore. If the jury found it was signed conditionally by Weill, then it followed that, there was to be some other instrument drawn, for his statement applies equally to both facts, and the necessity for curing the indefiniteness created by the use of the option tended to lend color to the claim. What was the .legal construction of this instrument did not become controlling, for, if it was conditionally executed, plaintiff did not show himself entitled to recover; while, if it was unconditional, and constituted the contract of, sale, plaintiff was entitled to recover, without regard to its legal effect as between the parties to it.

Counsel complains that the court assumed that it devolved upon the plaintiff to show that a complete and perfect contract, of sale was entered into, and, if accepted and signed when it was not complete, that would prevent the plaintiff from recovering any compensation, I do not so read the charge. On the contrary, the court expressly stated that plaintiff wras entitled to recover if he brought the parties together, the owner ready to sell, and the purchaser ready to buy at the owner’s terms. This was nowhere modified or qualified, and, while the court speaks of a completed sale or contract of sale, it was with respect to the claims of the parties regarding the writing, and not in denial of the right of recovery, if plaintiff produced an agreement of mind. I am therefore of the opinion that the court committed no error in the submission of the case to the jury respecting the agreement of sale. But I am of opinion that the .court committed an error respecting the admission of testimony as to other negotiations between other'parties respecting a sale of the property after the execution of the agreement sued upon. It appears from the evidence that, plaintiff did not waive his right to compensation for services rendered by him as agent, as there is no sufficient evidence upon which such claim could be based. Bach v. Emerich, 35 N. Y. Supr. Ct., 548. Plaintiff’s right to recover depended upon the facts attending upon the transactions between the parties to the writing, consequently the evidence of subsequent negotiations between different parties was entirely irrelevant, tended to divert the minds of the jury from the main issue, and inject into the trial an entirely irrelevant one, which might prejudice the minds of the jury to plaintiff’s detriment. This ruling cannot be sustained as tending to show difficulty in agreeing upon details of purchase and showing indefiniteness in the writing. A large part related to the gold clause, in which there was no indefiniteness at all. As we have seen, difficulties attending construction or agreement in detail would not defeat plaintiff’s 'right. Were the parties agreed? was the question, not what they agreed on. What other parties did in trying to .arrange details sheds no light upon that. One party might agree without difficulty, where another would find it impossible. This •evidence was improperly received, and must produce a new trial.

The judgment and order appealed from should be reversed, and a new trial ordered; costs to abide the event.

All concur.


source: Caselaw Access Project

author: White, J.

license: Public Domain

text:
    John T. Noye Manufacturing Company, Resp’t, v. George H. Raymond, App’lt.

      (Buffalo Superior Court, General Term,

      Filed May 3, 1894.)

      to Trial—Adjournment—Affidavit.
    An affidavit for the adjournment of the trial, because of the absence of a witness, must state the facts as to the efforts made to secure such witness.
    S, Pleading—Corporation.
    In an action by or against a corporation, the omission of the allegation of incorporation, required by § 1775 of the Code, is waived by answering on the merits.
    Appeal from a judgment in favor of plaintiff.

      Mr. Harding, for app’lt; Mr. Grangle, for resp’t.
   White, J.

This action is brought to recover the balance of an account alleged to be due from the defendant for services rendered and goods delivered at his request. The answer contains a general denial, a set-off against the claim arising out of a breach of warranty of the goods sold, and a plea of payment. Upon the joinder of issue, the case was adjourned for several days by the court of its own motion. On the adjourned day the defendant asked for a further adjournment, and in support of his motion read the affidavit of the defendant, which is attached to and made a part of the return herein. The court refused to grant the adjournment asked for, and the defendant claims that such refusal was erroneous, and requires a reversal of the judgment appealed from. It was incumbent upon the defendant, in order to secure the adjournment requested as a matter of right, to prove by his own oath or otherwise, to the satisfaction of .the court, that a material and necessary witness was not present in court, that he could not safely proceed to trial without the benefit of the testimony of that witness, and that he had used due diligence to obtain the testimony or the attendance of the witness. The affidavit used by the defendant for that purpose states that a party by the name of Granver is a necessary and material witness for the defendant, and that he cannot safely proceed to the trial of the action without him ; that Gran ver was reported by one Martin Johnson to have gone up the Lakes at some time before this action was commenced, and. was expected to return in four or five weeks ; that he expected to-prove by Grranver that the machinery sold by the plaintiff to the defendant, to recover the price of which the action is brought, was. not as warranted to be by the plaintiff, and damages sustained by the defendant by reason of that breach of warranty. The fact was pleaded, and therefore the testimony of Grranver, as the defendant claimed it would be, was material; and, by complying with the law and rules of practice in that regard, the defendant was certainly entitled to the benefit of the evidence on the trial. The affidavit seems to comply with the requirements of the statute, Code Civ. Proc. § 2975, unless it fails to show that degree of diligence to secure the attendance of the absent witness or his testimony which the law exacts* There is no statement of facts in the affidavit upon which the court could exercise its judgment as to whether due diligence had been used by the defendant or not. The defendant says he endeavored to procure .the attendance of the witness, but he fails to say what he did in that respect. He should have stated the facts concerning his efforts; it was for the court to say, orí .those facts, whether he had done what the law required of him. No statement is made as to the knowledge or means of knowledge possessed by Johnson concerning the intentions of Grranver, nor is it stated where Grranver or Johnson, then or at any time, lived, nor whether Grranver went from, or intended to return to, the city of Buffalo or the state of New York. Grranver might have lived in Canada, and have gone up the Lakes with the intention to return to his home there, in perfect harmony with the statements in the affidavit. The ruling of the municipal court is not shown to have been an abuse of its discretion, but was justified by the facts as they were presented to it.

The defendant next claims that the evidence given upon the trial does not warrant the inference in law that the plaintiff sold and delivered goods to, or rendered services for, the defendant at his request. Henry R. Howland was sworn as a witness, and his-testimony seems positive and direct upon that subject. He states without qualification that “at various times between the 31stday of March, 1893, and the 1st day of July, 1893, the plaintiff performed services and delivered goods, wares, and merchandise to-the defendant, at his request, worth $1,796.26; that no part of the same has been paid except the sum of $1,307.85.” He further states that the difference-is due and owing, etc., which is, no doubt, a conclusion. But this conclusion in no way affects the positive testimony as to the delivery of the goods to the defendant at his request, and their value. The law implied a promise on the part of the defendant to pay for them when delivered to him at his request, and, in the absence of any claim to the contrary in the answer, the presumption is that they were to be paid for on delivery.

Section 1775 of the Code of Civil Procedure requires that, in an action by or against a corporation, the complaint must aver that the plaintiff or the defendant,' as the case may be, is a corporation ; must state whether it is a domestic or foreign corporation, and, if the latter, the state, country or government by or under whose laws it was created. The complaint in this case does not state whether or not the plaintiff is a corporation; and for that reason, assuming that it is a corporation, the defendant claims that the complaint is defective in two respects, namely, within subdivisions 3 and 8 of § 488 of the Code of Civil Procedure, and that he can take advantage of those defects on this appeal. We think, however, that by answering upon the merits he waived those defects. They did not even render the complaint demurrable within either of the above subdivisions. Phœnix Bank v. Donnell, 40 N. Y. 410; Hafner & S. F. Co. v. Grumme, 10 Civ. Pro. R. 176; Rothschild v. Grand Trunk Railroad Co., 38 St. Rep. 869; 14 N. Y. Supp. 807; Adams v. Lamson Store-Service Co., 35 St. Rep. 518; 13 N. Y. Supp. 118.

The judgment appealed from should be affirmed, with costs.

All concur.


author: White, J. Hatch, J.

text:
    Jacob Morgenstern, Resp’t, v. Charles B. Hill, App’lt.

      (Buffalo Superior Court, General Term,

      Filed May 3, 1894.)

    Brokers—Commissions.
    An agreement by a real estate agent to divide commissions with plaintiff, if he should procure a purchaser for certain property, does not entitle him to such share, where he and a third party purchase the property.
    Appeal from a judgment in favor of plaintiff, entered on a verdict, and from an order denying a motion for a new trial on the minutes.

      Simon Fleishmann, for app’lt; M. Fillmore Brown, for resp’t. '
   White, J.

The defendant was interested in two farms in the vicinity of the city of Buffalo, as agent for the owners, from some time in 1888 until April 9, 1890. In 1888 the plaintiff secured from the defendant the right to purchase these farms by paying the sum of $400 for the privilege. He was unable to complete the purchase, and forfeited the $400. At about the time he lost, the privilege of purchasing the farms, or soon thereafter, the defendenant said to the plaintiff that if, at any time thereafter, he would secure a purchaser for these lands, the defendant would divide commissions with him. Thereafter, and in April, 1890, one Zink called upon the plaintiff to inquire concerning these lands; and it was thereupon agreed between them that, if the lands could be purchased at a figure which they should consider advantageous, they would purchase them on joint account, and take the title to Zink. The plaintiff and Zink then secured contracts for the purchase of the lands in the name of Zink, and immediately thereafter by a written contract between themselves, defined the interest which each should have in the profits of the lands, when sold, and the proportions of the purchase money to be paid by each. The fact that the purchase was made on their joint account was known to the defendant, and he was invited to take an interest with them in the purchase. Such, in substance, are the facts, as the jury found them by their own verdict. Hothing was said about commissions at the time, or with special reference to the purchase by the plaintiff and Zink. The plaintiff’s claim is that by this- contract of sale he found a purchaser for these lands, within the meaning of the promise made by the defendant to divide commissions with him if he did so. If the promise was made by the defendant, and it was acted upon by the plaintiff, the service rendered by him in securing a customer would be as effectual to establish the contract claimed as though it were evidenced by the most elaborate documentary proof. The real question upon this point in the case is whether or not an agent can claim commissions under a contract that he shall receive them from his principal on securing a purchaser for lands owned by the principal, where he, (the agent) buys them himself. There can be no doubt that, if the agreement was made with the defendant as •claimed by the plaintiff, it created the relation of principal and agent between them. There is nó reason why an agent for the •sale of lands,' such as the defendant seems to have been, should not employ agents himself in and about the business of the agency; and such was the arrangement between him and Morgenstern, according to the evidence of the plaintiff himself. He does not . claim to have been employed by either Johnson or Formen. Carroll v. Tucker, 2 Misc. Rep. 397; 50 St. Rep. 611; 1 Am. & Eng. Enc. Law, 395; Lantry v. Sutton, 22 St. Rep. 244; 5 N. Y. Supp. 14. It seems to be well settled as the law in this state that, where an agent for the sale of property enters upon negotiations for the purchase of it himself, he thereby terminates' the agency as to those negotiations; gnd, if they result in a purchase by himself, he cannot without a special agreement to that effect claim pay for services in making the sale. In such a case the parties deal with •each other as principals, and the former relation of principal and agent ceases to exist. Dobson v. Racey, 8 N. Y. 216. The two positions—rtha( is, of agent and principal—are inconsistent with each other. In the one case the agent is bound to exercise his best skill and ability, and a high degree of fidelity and good faith, to secure for his principal the best price possible for the property to be sold. In the other, he is justified in using all means in his power, not unlawful, to secure the property at the lowest price possible. When an agent purchases from his principal for his own benefit, he is presumed to have resigned his agency. The policy of law is to prohibit a person from attempting to fill the two positions at the same time; and the principle applies in all cases alike, and not merely in those cases where the agent has been guilty of fraudulent conduct. Parkist v. Alexander, 1 Johns; Ch. 394; Reed v. Warner, 5 Paige, 650; Cram v. Mitchell, 1 Sandf. Ch. 251; Dobson v. Racey, 8 N. Y. 216; McDonald v. Lord, 26 How. 404; Bain v. Brown, 56 N. Y. 285; Wilson v. Wilson, 4 Keyes, 413 ; 4 Abb. Dec. 621; Coal & Iron Co. v. Sherman, 30 Barb. 553 ; Taussig v. Hart, 58 N. Y. 425. When, therefore, the plaintiff negotiated for, and became the purchaser of, the lands in question, with Zink, the relation of principal and agent, which had theretofore existed between him and the defendant, was terminated, and those negotiations were conducted by them as principals. These views necessitate the conclusion that, as matter of law, the plaintiff is not entitled to recover anything of the defend- ■ ant, under the evidence in the case. The judgment and order appealed from should be reversed, and a new trial ordered, with costs to abide the event.

Hatch, J.,-concurs.

Hatch, J.

Giving plaintiff, as entitled, the most favorable view of the evidence, this recovery cannot be sustained. Some time in the year 1888, defendant stated to plaintiff that if he. at any time, brought him a purchaser for certain lands which defendant then had for sale as agent of other parties, he would divide commissions. In April of that year, plaintiff procured an optional contract of purchase of the lands, running sixty days, for which he paid $400, and forfeited the contract. About March 25, 1890, plaintiff states that one Zink made inquiry of him about land in the locality where this land lay, that he gave him information respecting the land, and was asked by Zink to see defendant, which he did, informed him that he had a customer for the land, obtained the price, and stated that he would bring the customer in. Having reported the information to Zink, and the latter inclining to a favorable view of the proposition, plaintiff took him to defendant, with the result that an agreement of purchase was reached, which was finally consummated and carried out.

Thereafter, plaintiff demanded payment of commissions, which was refused. This statement is quite as strong as plaintiff’s testimony, on his direct examination, made the case, and it is quite clear that, if this were all there was of the transaction, he made out a case authorizing the jury to award one-half commissions, even though nothing further had been said, beyond the general conversation respecting them. But his further examination, and that of other undisputed testimony in the case, established that during the negotiations, and before any contract of sale was made, either verbal or written, plaintiff, by agreement with Zink, became a part purchaser of the premises, and offered inducements to defendant to join them therein, which was declined. The contracts of sale were taken in the name of Zink, and on the same day a contract was drawn, and executed by the latter and plaintiff, referring to the contracts, and specifying plaintiff’s obligation with respect thereto, and his interest therein. The case, as thus made, presented plaintiff in the attitude of a purchaser for the benefit of himself and Zink; and, as such, defendant dealt with them as agent of his principals. Nothing was said about commissions in connection with this sale. The position of purchaser was therefore inconsistent with any agency preated by the general conversation had two years prior thereto, and could create no liability against defendant, in the absence of a clear understanding by the parties of the dual relation which plaintiff now claims existed. When plaintiff appeared as purchaser, he occupied an entirely different attitude from that of agent for defendant. He then acted for himself; and. without an express agreement that lie should receive commissions for such sale, he could not recover them. It would be quite too loose a construction of the evidence and circumstances attending the transaction to hold that the original statement to divide commissions was within the contemplation and understanding of the parties when the new contract was made. There was an entire change. They occupied different relations, and were under different obligations. Plaintiff could not be both purchaser and agent, for such position ■would violate the fiduciary relations which agency creates. Dutton v. Willner, 52 N. Y., 318, 319. Cases relied upon by plaintiff are inapplicable to the undisputed facts presented. It is quite true that an agent has been permitted to recover where he-acted for both parties; and an agreement between brokers to divide commissions, both acting for different parties to the transaction, has been upheld. Such are Jarvis v. Schaefer, 105 N. Y., 289; 7 St. Rep. 502; Dearing v. Sears, 19 St. Rep. 325 ; 3 N. Y. Supp. 31. But in each case all of the parties, both principals- and agents, dealt with respect to a full disclosure of all the facts, and were held bound thereby. It is true that defendant understood that plaintiff was purchasing for himself and another; but it is also true that no mention was made of commissions, according to plaintiff’s evidence, and they were expressly reserved to-defendant, according to his testimony. Whatever be the fact in that regard, it is fatal to plaintiff’s claim; for, giving him the-benefit of his version, there was no agreement expressed at the-time by the parties that commissions were to be divided. The-motion for a dismissal of the complaint should have been granted. The -judgment and order appealed from are, therefore, reversed, and a new trial ordered; costs to abide event.

White, J., concurs.


author: Titus, C. J.

text:
    Richard Peer, App’lt, v. John O’Leary, Resp’t.

      (Buffalo Superior Court, General Term,

      Filed May 3, 1894.)

    1. Landlobd and tenant—Tenancy a.t will—Notice. '
    ■ To terminate a tenancy at will by giving one month’s notice in writing, the notice need not expire at the end of a month.
    3. SUMMARY PBOCEEDINGS—TENANCY BY ENTIRETIES.
    The husband may maintain summary proceedings in respect to property held by entireties.
    Appeal from a judgment in favor of defendant.

      Kenefick & Love, for app’lt; Fred D. Corey, for resp’t.
   Titus, C. J.

This is an appeal by the plaintiff from a judgment of the municipal court granting a nonsuit and dismissing the proceedings instituted for the summary recovery of real estate. The plaintiff is the owner of a house on Sandusky street, in this city. In the spring of 1891 the defendant entered into possession of the rear portion of the plaintiff’s house under circumstances detailed by the plaintiff in his evidence as follows: “ They were paying rent before their house was burned. They wanted this place to come into, I let them come into it. My wife asked me to let them come. I was not satisfied to have them, come. It was inconvenient to me, but I said, ‘Let them go there,’ and they came.”

‘•The defendant continued to occupy the premises until the trial of this action in the court below. So term was fixed for the tenancy to continue, nor was any provision for the payment of rent made, and the plaintiff does not now ask or claim any rent A notice to quit and surrender the possession within one month was served on the defendant on the 7th day of June, 1893, and on the 11th day of July these proceedings were commenced to obtain possession. The court below granted a nonsuit on the defendant’s motion, evidently on the ground that the notice to quit was so drawn as not to terminate the tenancy at the end of the month. The notice seems to be in conformity with the statute, which provides: “ When there is a tenancy at will,' or by sufferance, created by the tenant’s holding over his term, or otherwise, the same may be terminated by the landlord’s giving one month’s notice in writing to the tenant requiring him to remove therefrom.” 2 Rev. St., 3d Ed., c. 1, tit. 4, pt. 2, § 7.

There is nothing in the statute which requires the notice to surrender the possession to expire at any particular time, and it may, for anything there found, as well terminate in the middle as at the end of the month. We are referred to no well-considered case which holds that such a notice must terminate with the month, where the tenancy is one at will, as we conceive this to be. The. contrary was held in McGuire v. Ulrich, 2 Abb. Pr. 28, where the notice was served on the 18th of April, and proceedings were instituted on the 25th of May. It was held in that case that it was not necessary that the notice should expire or terminate with the end of the month; that it was in the power of the landlord to terminate the. tenant’s holding at any time by giving such a notice: and, where a tenant was allowed to occupy premises without being limited as to time, and without any' fixed rent being reserved, it was held that a tenancy at will existed. Post v. Post, 14 Barb. 253; Sarsfield v. Nealey, 50 Barb. 245. If the tenancy was from year to year, the tenant could only be evicted after one month’s notice terminating with the year. But a tenant at will is liable to have his holding terminated at any time, and, if he does not surrender when he is served with the proper notice, summary proceedings may be instituted to recover possession, Post v. Post, supra. The facts in the case at bar constitute a holding at will, and not one from year to year. The payment of rent is not essential to the relation of landlord and tenant, although it is high evidence of such relation. A landlord may lease his premises without reserving rent, and not lose the benefit which the relation of landlord and tenant confers in the statutory proceedings to recover possession. 14 Barb. 253. The cases cited by defendant in his brief do not hold a contrary doctrine. It is true that the conventional relation of landlord and tenant must exist to enable the landlord to institute these proceedings, but that simply means that the occupancy of the premises must he by agreement between them as landlord and tenant; but it does not follow that the landlord must exact rent

The defendant’s claim that the evidence does not show that the plaintiff is the owner of the property, so as to authorize him to institute these proceedings, is not well taken. If it is claimed from the statement of the plaintiff in answer to the question, You are the owner of the property?” “ Yes, sir. I paid for it. ,,It is partly in0my wife’s name and mySelf,”—that such an ownership would not authorize the plaintiff to institute these proceedings, such claim is not tenable. It, at most, makes the plaintiff and his wife tenants by the entirety, which, for all ‘purposes of this action, enables her husband to institute the proceedings in the name of the plaintiff. During the life of the" husband and wife holding property by virtue of a joint conveyance the husband has the right to the possession of the property, and to exercise control over it the same as if it were solely his, so long as this relation exists. Bertles v. Nunan, 92 N. Y. 152.

. It is not claimed that the proof of the service of the notice to surrender possession of the premises on the defendant is not sufficient.. The notice is returned by the court below with proof of service, and it must have been considered in evidence by the court and the parties, although it does not appear to have been marked as an exhibit. These proceedings are of a summary nature. The landlord is entitled to his writ on the return of the precept when default is made, without any other proof, such as is contained in the affidavits and notices required at the time of issuing such precept. Section 2249 of the Code provides: “If sufficient cause is not shown upon the return of =the precept, the justice must make a final order awarding to the petitioner'the delivery of the possession of the property.” v

It is not clear why the plaintiff was nonsuited. As the case stood when he rested, he was entitled to the judgment of the court awarding him the possession of the premises.

The judgment is therefore reversed, with costs.

All concur.


text:
    Henry H. Rhodes, Resp’t, v. New York Central and Hudson River Railroad Company, App’lt.

      (Buffalo Superior Court, General Term,

      Filed May 3, 1894.)

    Negligence—Care.
    The fact of an attempt by a palace car inspector to adjust an automatic coupler, in order to attach a palace care to the train, in the exercise of due care, does not relieve the railroad company from its duty to exercise reasonable care to shield him from harm while engaged in the performance of his duty in that respect.
    Appeal from a judgment entered on a verdict^ in favor of plaintiff, and from an order denying a motion for a new trial on a case and exceptions.

      James F. Gluck, for ajpp’lt; George W. Cothran, for resp’t.
   White, J.

This action is prosecuted to recover damages alleged to have been sustained by the plaintiff by reason of the defendant’s negligence. The defendant was engaged in making np a train of cars in its depot at Buffalo, which was to consist in part of sleeping or palace cars owned by the Wagner Palace-Car Company, The plaintiff was in the service of the latter company as an inspector of its cars. While in the discharge of his duty, his left hand was accidentally caught and held fast by an appliance in the drawhead of a standing car to which another was being moved for the purpose of coupling the two together in the train then being made up. The appliance -which caught and held the plaintiff’s hand was intended so to adjust itself in the drawhead of the approaching car as to securely hold the two cars together when they were brought into juxtaposition by a moderate degree of force, but this appliance, called the “dog,” was seen to be out of its proper position as the two cars approached each other, and it was in attempting to adjust it that the plaintiff’s hand was caught. While the plaintiff was in this condition, and unable to escape, the defendant caused the moving car to come in contact with the one standing, and the plaintiff’s hand was crushed. The evidence on the part of the plaintiff tends to prove that the defendant’s servant in charge of. the moving car was warned of the»'plaintiff’s inability to escape from the danger which threatened him, and that he could easily have prevented the injury. On the other hand, the defendant’s witnesses deny that they knew plaintiff’s hand was caught, and admit that if they had known of his inability to escape they could easily have prevented the injury. The defendant’s witnesses claim, or at least it is fair to infer from their testimony, that they supposed the plaintiff could and would extricate himself in time to avoid injury. It is claimed by the defendant that the only inference justified by the evidence in the case is that the act of the defendant’s servant which caused the injury complained of was purely malicious, without the scope of his employment, and that consequently the defendant is not responsible for the consequences of that act. It was the duty of the defendant’s servants to couple these two cars together, and they were engaged in the discharge of that duty in doing what they did. It is but fair to believe the testimony of the defendant’s witnesses in so far as it is a denial of knowledge on their part that the plaintiff was unable to extricate himself from danger. The conduct and language attributed to the defendant’s servant in charge of the moving car does not, to my mind, -necessarily indicate a willful or malicious design to inflict injury upon the plaintiff, but indicates rather a failure to comprehend or ascertain his condition and to »ct accordingly; and to my mind the verdict of the jury characterizing that conduct as negligent, instead of criminal, is but fair and reasonable.

At the request of the defendant the court charged the jury, in substance, that if the plaintiff went in to look at the coupler at the request of the defendant’s servant, after having once inspected it and found it in order, it was not in the discharge of his duty so to do, and any risk he thereby incurred he voluntarily assumed, and could not hold the defendant liable therefor; and it is now urged that the refusal of the court thereupon to charge that the defendant was entitled to a verdict constitutes reversible error. This claim of the defendant is based upon the assumption that the evidence in the case conclusively established (1) that the plaintiff’s hand was caught, and he was unable to avoid the injury he received by reason of having gone between the cars to look at the coupler; and (2) that prior to the time when his hand was caught the plaintiff had inspected this coupler, and found it all right; and (3) that in fact the coupler was all right when the plaintiff’s hand was caught. Not one of these propositions was necessarily found to be true by the verdict of the jury. The accident was not caused solely by reason of the plaintiff going between the cars to look at the coupler. 'According to the evidence of the plaintiff, the “dog’’ was out of place, but the fact had been overlooked by him until his attention was called to it; and in attempting to adjust the “dog” immediately thereafter his hand was caught. Probably under no circumstances which the jury might have found by their verdict would the fact of an attempt by the plaintiff to adjust the “dog” in the exercise of due care have relieved the defendant from its duty to exercise reasonable care to shield him from harm while engaged in the performance of his duty in that respect. The plaintiff owed no duty to the defendant except thatwhich rests upon all men at all times to use due care td avoid injury at the hands of another. Rules of law which regulate the'conduct of master and servant have no application as-such to .the facts,in this case. If the charge is conceded to have been erroneous it did not prejudice the defendant. In my opinion, the verdict of the jury was right on the merits, and therefore the order and judgment appealed from should be affirmed, with costs.


text:
    Henry Winter, App’lt, v. Crosstown Street Railway of Buffalo, Resp’t.

      (Buffalo Superior Court, General Term,

      Filed May 3, 1894.)

      1. Appeal — Exceptions.
    A question of law may be presented by a bill of exceptions, though no appeal has been taken from the judgment.
    2. Same — Certificate.
    A record, which states the fact of a trial, recites the evidence in a narrative form and is signed, settled and ordered filed by the trial judge, is a , sufficient case on appeal to present questions of law.
    3. Negligence — Persons' on track.
    Where a person driving on a railway track, if he had given that attention to his surroundings whicli the law requires, would have been apprised by the bell signal that a-car was approaching, in time to remove himself from the track, but fails in this observance, he is guilty of negligence.
    Appeal from an order denying a motion for a new trial made on the minutes of the court.

      F. R. March, for app’lt; Porter Norton, for resp’t.
   Hatch, J.

The ground upon which this motion is made, as stated in the notice of motion, is that the court erred in granting a nonsuit, and in not allowing plaintiff to go to the jury. Plaintiff therefore seeks to present for determination an exception to a ruling upon a question of law. ¡No judgment was entered, and consequently there is no appeal from one, although the notice of appeal speaks of a judgment. Defendant insists that as there is no judgment appealed from, and no case made, the record presents no question for review. Code Civ. Proc. § 999, authorizes the 2notion for a new trial based upon a direction dismissing the complaint, and also authorizes an appeal from an order made thereon. This appeal is from such an order; consequently, so far, the practice is regular, and presents the question. But the section further provides that such appeal is to be heard upon a case prepared and settled in the usual manner. The record here presented is indorsed a “Bill of Exceptions,” and it is claimed that such is not a case within thé rule. ¡No mention is made of a bill of exceptions in the Code, in terms, but a case is provided for generally, to be prepared as required by lawand the general rules of practice. By Sup. Ct. Rule 34 it is provided that a bill of exceptions shall contain only so much of the evidence as may be necessary to present the question of law upon which the exception is founded, which is to contain mainly tire evidence in narrative form. By rule 35 the party making the caseor exceptions shall procure the same to be filed after settlement and signing. It is quite true that the object of a bill of exceptions is to present to the court only questions of law for review, and to that end only so much of tire evidence as is necessary to present such questions is required. It is equally true that an appeal from a judgment presents questions of law only. But it does not follow from these concessions that a question of law may not be presented by what is called a “bill of exceptions,” although there be no appeal from a judgment. There is no command either, in Code or rule, that an appeal from the judgment must accompany the exceptions. Here the appeal from the order brings up the question, and the command is to put in enough evidence to present it. If sufficient evidence be presented to show that the ruling is wrong, what more is needed? If, from all that is presented, it does not affirmatively appear that any error was committed, the appeal fails. If the case prepared does not contain all the evidence, then it becomes the duty of the respondent, if he deems it essential, to have the omitted portion, or such part as he desires, inserted. The rule is clearly stated by Judge Finch in Porter v. Smith, 107 N. Y. 533; 12 St. Rep. 479

“ An exception appearing in the proposed case serves as a notice to the respondent of an intention to raise the question of error in the ruling excepted to, and puts upon him the responsibility of adding, by amendment, any needed proof.”

Where the appeal presents a ruling upon a question of fact involving the weight of the evidence, it is essential that the case contain a statement that it contains all the evidence on the point sought to be reviewed, Aldridge v. Aldridge, 120 N. Y. 614; 31 St. Rep. 948; Mullinhoff v. Scherer, 17 St. Rep. 387; 1 N. Y. Supp. 759; Howe v. Woolsey, 57 St. Rep. 507; 27 N. Y. Supp. 377; and this for the reason that there is nothing to give notice that a review of a question of fact is intended unless the statement is made. The rule is different where an exception which raises a question of law is taken. In the present case we have a record which states that the trial came on before the judge (naming him) and a jury; that “the following proceedings were had: The plaintiff, to maintain his cause of action, gave evidence tending to show.” Then follows in narrative form what purports to be the evidence relied on which is signed, settled and ordered filed by the judge who presided at the trial. This is a case within the meaning of the Code, and from the evidence thus returned, the court can determine whether the case ought to have gone to the jury or not, which is the question sought to be reviewed. The point sought to be presented is therefore raised The record shows that plaintiff was driving upon the track of a surface railroad, laid in one of the public streets of this city, with a horse and wagon. The motive power of the cars operated on the track was electricity. Plaintiff was familiar with the street, an'd had seen the cars operated thereon. He had driven in the track nearly half a mile; had met some cars, but had made no observation in the rear to see if any were approaching until he heard the bell ring, when he looked, and saw the car approaching him about thirty yards away. He then tried to get out of the track, but the car struck the wagon before it cleared the track, inflicting injury. The bell upon the car had been rung several times, and, when it crossed a street some distance from where plaintiff was injured, the bell was rung loudly, and could have been heard for a distance much further than plaintiff was then away. He did not seem to hear it, and made no effort to leave the track or get out of the way. It does not appear that the car was run faster than such cars are ordinarily operated upon this street, or but that the motorman wa.s competent to perform his duties. All that appears is that the motorman made no special effort to stop the car ; that he commenced to stop the car when within five or six yards of the wagon ; but did not stop, and caught the wagon on the edge of the box. It may be that enough can be-spelled out from the evidence to present a case for submission to-the jury respecting defendant’s negligence. The question is different with regard to plaintiff’s negligence. -It is not claimed but that, if he had looked behind,—the only point from which danger was to be apprehended;—he could have discovered the approach of the car in abundant time to have placed himself in a safe position. Had he given that attention to his surroundings which the law requires, he would have been apprised, by the signal given by the bell, that a car was approaching, in time to remove himself from the track. These things lie was required to do, and, failing in this observance, he was guilty of negligence. Adolph v. C. P., N. & E. R. Railroad Co., 76 N. Y. 533 ; Ward v. Rochester El. Railway Co., 43 St. Rep. 84; 17 N. Y. Supp. 427.

Error so found in the order entered, denying the motion for a new trial, due, without doubt, to the misconception of the attorney who entered it. This error consists in inserting, after the-statement that motion is denied, “with costs of motion to abide the event of action.” The order is final. There is no event to abide upon which to impose the condition. The court doubtless; never made such an order, but the attorney, intending to appeal, inserted it without calling the court’s attention to it. This clause is stricken out, and the order appealed from is affirmed, with costs.


author: Sedgwick, O. J.

text:
    Sandor, Kohn, Resp’t, v, Manhattan Railway Company, App’lt.

      (New York Superior Court, General Term,

      Filed May 7, 1894.)

    Appeal—Case—Service.
    The service of a “proposed” decision does not set the time running with^ in which a case must be served.
    Appeal from an order declaring defendant’s case abandoned.
    I?. L. Maynard, for app’lt; W. W. Badger, for resp’t.
   Sedgwick, O. J.

Below the defendants took the position that their case should not be declared abandoned, because their right to make and propose one still existed. They asserted that a copy of the decision in the case had not been served upon them. The thirty-second general rule is : “ Whenever it shall be necessary to make a case, the same shall be made and a copy thereof served on the opposite party within the following times: If the trial was before the court or a referee, within ten days after service of a copy of the decision or report, and of written notice of the entry of judgment thereon.”

I" am of opinion that the service of the copy and of the written notice, should be made at the same time. It is unnecessary to determine this now, as it seems to be clear that the decision referred to in the rule is the decision proved by the Code. That is, it must be signed by the judge by his own hand, and it must be .direct, by its own propier force, the judgment which is to be entered. In this case no copy of a decision was served, but of what the plaintiff proposed to the judge should be bis decision. It was called a “proposed” decision. This was not a decision. It did not appraise the defendants of what the rule meant they should, know before they should be called upon to make a case. The judge might, after the service of the proposed case, refuse to sign it, and might make a different legal foundation of the judgment. I therefore think that, as the time within which to serve a case had not expired, the case should not have been declared abandoned. Order appealed from reversed, with $10 costs, and the motion below is denied, with $10 costs.


author: Pratt, J. Culled, J.,

text:
    United States Trust Company, Resp’t, v. Philip V. R. Stanton, Impleaded, etc., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    1. Evidence—Admissions—Aqainst interest.
    Where the admission of an obligee that the interest has been paid on the bond is, at the time, against his interest, it is competent evidence to prove, payment.

      8. Limitation—Payment. -
    Where it is necessary, in order to remove the bar of the statute, to establish that a payment was made later than October 10, 1867, proof that it was made at some time on or previous to October 23, 1867, is insuffij cient.
    3. Witness—Presumption.
    No presumption should be drawn .against a party from the fact that ho hesitates to oiler himself as a witness m his own behalf in respect to a very ancient transaction.
    Appeal from a judgment in favor of plaintiff.

      P. V. B. Stanton, (Josiah T. Marean , of counsel,) for app’lt; Edward W. Sheldon, for resp’t. • ,
   Pratt, J.

The burden was upon plaintiff to prove that the last indorsement of interest was made later than October 10,1867. For that purpose was put in evidence the bond which bore an indorsement dated October 23, 1867, and a witness was called who ■testified that he made the indorsement on that date. Further examined, he testified that he received the money, not from the debt- or in the bond, but from the obligee, and that he had no personal . knowledge of the date when the obligee received the money from the debtor. Upon the question being put to the witness whether the obligee may not at that time have had the money for a month, he answers, “He may have had it a year, for what I know.” The admission of the obligee that the $87 interest was paid was at that time against his interest, and is therefore competent evidence to prove thepajrment. , Whether a statement of the _ obligee as to the time of payment, not being against interest, could be put in evidence, is a different question, but no such statement was made. We are at loss to see that the proof goes any further than to prove that the payment was made at some time on or previous, to October 23, 1867. That is manifestly insufficient to remove the bar of the statute.

The interest was due on May 1, 1867, and, if any presumption can' be indulged in as to the time of payment, it is probable that payment was made when due. The court below felt the weight of these considerations, but, on the ground that the defendant did not personally offer to testify, gave judgment'for plaintiff. We think this was error. If plaintiff desired defendant’s testimony, they should have called him. Where a transaction is so ancient, a witness whose professional experience must have taught him the imperfection of human memory may well hesitate to offer himself as a witness in his own behalf. We do not see that any presumptions should from that be drawn against him,

The court below seemed to consider that the burden was on defendant to prove the payment was not within 20 years. We think ■that was error. The complaint alleges that the bond and mortgage were executed by defendant to Leveridge and Duryea, “executors of the last will and testament of Bowne, and trustees appointed in and by his last will." It further alleges that plaintiff haq been appointed trustee under the will of Bowne, in place of Leveridge, deceased; and the conclusion of law is alleged that, by the appointment, the bond and mortgage passed to the plaintiff. There is no allegation that the bond and mortgage were an asset of the estate of Bowne. The words “executors and trastees” are only descriptive of the person. -There is no-allegation that the will established any trust of personal property. The complaint, therefore, failed to state a cause of action in the plaintiff, and the motion made at the opening of the trial to dismiss the complaint should have been granted. The judgment must be reversed; and as the cause, for reasons which have abundantly appeared on the former trials, is not one for which an amendment of the complaint should be granted, final judgment must be given for defendant, with costs,

Dykmait, J., concurs.

Culled, J.,

(dissenting.)—This is an appeal from a judgment of the special term for tiie foreclosure of a mortgage. The complaint sufficiently averred title in the plaintiff. It alleged that the bond and mortgage in suit passed to the plaintiff as part of the estate of Gilbert W. Bowne, under the order of the court appointing plaintiff trustee. The bond ran to Leveridge and Duryea, executors of the last will and testament of Gilbert W. Bowne, and trustees appointed in and by said will,” conditioned for payment to said Leveridge and Buryea, “ and the survivor of them, their or his successors in office,, or assigns.” Granting that the omission of the word “ as” in the first portion of the instrument made the terms “ executors and trustees,” standing by themselves, mere descriptio persones, the condition of the bond that the payment was to be made to Leveridge and Buryea, their survivor and successors in office, clearly shows that the obligation ran to them in their representative capacity. People v. Miner, 37 Barb. 466; Beers v. Shannon, 73 N. Y. 292. The mortgage is of the same tenor. The case is therefore plainly to be distinguished from that of Peck v. Mallams, 10 N. Y. 509.

It is conceded that the indorsement on the bond of the payment of interest was prima fade sufficient to take the claim out of the statute of limitations. But it is said that in this case the indorsement has no probative effect, because it appears from the testimony of the person who made it that the check or money was received from one of the trustees, who might have obtained it time ■enough before the malting of the indorsement to bar the mortgage by the statute. That trustee is dead, the transaction is over 25 years old, and the witness, who was the cleric and accountant of the trustee, naturally cannot recall the details of the payment We think the presumption is that the payment was made at the time of the entry; especially in the absence of any evidence to the -contrary on the part of the defendant.

The judgment appealed from should be affirmed, with costs.


author:
Pratt, J.
      Dykhan, J.,

text:
    Charles Pickslay, Resp’t, v. Theodore B. Starr, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 19, 1894.)

    1. Gift—Check.
    A check can be a valid gift.

      2. Same—When complete.
    After the money is paid, the transaction cannot be revoked.
    Appeal from a judgment in favor of plaintiff.
    The following is the opinion of Hamilton Odell, Esq., to whom the case was referred to hear and determine :
    The plaintiff sues to recover a "balance alleged to be due from the defendant for salary. The defendant avers that he has paid the plaintiff in full. The sum claimed is $3,852.10. From 1869' to April, 1891, the plaintiff was in the employment of the-defendant as a salesman. The defendant seems to have dealt very generously with him, paying him a, liberal salary, and adding' thereto in each year from 1883 to 1888, both inclusive, a Christmas gift of $2,500. These gifts were made by the defendant’s" checks, sent by him to the plaintiff from Europe. The plaintiff’s salary during these years was $5,400. In April, 1889, an arrangement was made between the parties by which the plaintiff’s salary was increased to $9,000, and, in addition to this, lie was to receive, after May 1, 1890, a commission or percentage of one- and one-half per cent, on yearly sales in excess of $600,000. In the evening of December 24, 1889, the plaintiff had an interview with the defendant in the latter’s office, at the close of which the defendant wished him a Merry .Christmas, and handed him an envelope, which contained a checknfor $2,500, drawn to the plaintiff’s order. On the day following Christmas, another interview took place, concerning which the plaintiff .testifies as follows: “I bade Mr. Starr ‘Good night,’ and went away, and got as far as the elevated station at 23d street, and I remembered that I hadn’t spoken to him in regard to his present, and I returned,, and went up into the office again where he was, and I said: ‘Mr. Starr, I have come back. I was already at the elevated station, and I remembered I hadn’t thanked "you for your present, and I came back to thank you for your present to me, and also on behalf of Mrs. Pickslay, to return her thanks to you for the present you gave her.’ Mr. Starr said he was very glad that we were pleased. I said, ‘Good night,’ and then went home.” The defendant does not deny this conversation. His testimony is that he cannot Tecali it, but he will not say that it did not take place. Nor does he deny, in any particular, the testimony of the plaintiff touching the delivery by him to the plaintiff of the check in question. These other facts appéar by the plaintiff’s testimony, and are not denied: That the check was not paid to the plaintiff in response to any request for money made by him on or before December 24, 1889 ; that the defendant was then indebted to the plaintiff on account in the sum of only $2,100; and that the plaintiff was never paid his salary by the defendant personally. The defendant testifies as follows: “According to my best knowledge and belief, it was January, 1891, that Mr. Pickslay came to me, and said: ‘ Mr. Starr, you gave me a check Christmas, 1889. "Was not that a present? ’ I said : ‘ No—a present? Why, no, of course not.’ He said: ‘What did you give it to. me for? I didn’t ask you for any money.’ ‘Well,’ I said, ‘ Pickslay, it was a mistake. •’ I had been in the habit of giving him at Christmas a present of $2,500 when his salary was $5,400, and I said I had made a mistake that year. * Q. Why -did you make out that check for Mr. Pickslay at that time? Á. As near as 1 can get to my thoughts, it was that this contract, this new contract, that you see recorded in the book, was entirely out of my mind. I can’t account for it in any other way—that that contract was out of my mind, and, having been in the habit of doing that for six years previously, I did it that time. Q. That is, not remembering this contract, you made out the usual Christmas check, or had the usual Christmas check made out, and delivered it to Mr. Pickslay. Is that it? A. That is about it, yes.” He further testified that it never entered his head to give the $2,500 to the plaintiff in addition to his salary and commissions under the new agreement, and that in December, 1889, after the check had been given, his bookkeeper inquired of him what should be done with it, and was directed to charge it to the plaintiff’s account. It was so charged, but the plaintiff was not informed of the fact, nor in any manner advised that the check was "not intended and delivered to him as a Christmas gift, until the following May, when, during the defendant’s absence in Europe, lie was furnished by the bookkeeper with a statement of his account from the defendant’s books.
    A gift is defined to be “a voluntary transfer of his property by one to another, without any consideration or compensation therefor. To make it valid, the.transfer must be executed, for the reason that, there being no consideration therefor, no action will lie to enforce it.” Gray v. Barton, 55 E Y., 72. The proofs in the present case show conclusively, as it seems to me, that the defendant’s plain he delivered the $2,500 check to the plaintiff, was to intention, when make the plaintiff the usual.Christmas gift. It certainty was not delivered as a payment on account of the plaintiff’s salary, or on account of any indebtedness due to him from the defendant. The plaintiff did not ask for it. The delivery of it was a purely voluntary act on the part of the defendant, and when, a couple of days later, the plaintiff thanked him for the “present,” and also for his “ present ” to Mrs. Pickslay, the defendant said that he was glad that they were pleased. The act that the defendant did he would not have done had he at that time remembered the new agreement with the plaintiff, by which the plaintiff’s salary had been substantially increased; but it was exactly what he intended to do. The check was drawn by him, or by his direction, that it might be given to the plaintiff as a Christinas gift. It was so given. The defendant says : “ Having been in the habit of doing that for six years previously, I did it that time,” And he cannot now be permitted to avoid the legal consequences of his voluntary and intentional act, on the ground that he did it by mistake, not recollecting facts which, had they been in his mind, would have deterred him from doing as he did.
    It is earnestly insisted in behalf of the defendant that the plaintiff’s claim, so far as it rests upon the check in question, murk fail, for the reason that the donor’s own check cannot constitute the subject-matter of a valid gift. This proposition is not exactly true. A check is riot, strictly speaking," an assignment of a portion of a fund against which it is drawn, but it is so practically. Harris v. Clark, 3 N. Y. 120. It represents money, and to all practical interests is money. Burke v. Bishop, 27 La. Ann. 465. What constitutes delivery of a gift must depend on the nature and situation of the thing given. Beaver v. Beaver, 117 N. Y. 428; 2-7 St. Rep. 405. When a donor delivers his own check, as in the present case, the gift which he intends is not simply the written order upon a third party for the payment of a specific sum of money, but the specific sum of money which he directs the third party to pay. Such a gift is incomplete until the check is either paid or accepted by the drawee. Until payment or acceptance, it may be revoked by the donor, But, when paid or accepted, the-the thing intended to be given comes actually or constructively into the possession of the donee; the possession and control of the donor are terminated, his title is divested, and the gift becomes complete. The donor cannot recover back the proceeds of the check as money paih under a mistake, nor can he insist that they be credited to him on account of any existing indebtedness due-from him to the donee. In the present case there was no revocation of the gift. The payment of the check was not stopped by the defendant, but it was deposited in bank by the plaintiff, and paid, in due course of business, by the drawee bank for the defendant’s account.
    As to the remainder of the plaintiffs claim, (for commissions upon sales during the year in excess of $600,000,) no good reason is visible to me why it should be allowed. The defendant agreed to pay plaintiff these commissions if they accrued. They did accrue. They have not been paid, gnd the plaintiff is entitled to recover them. The answer contains no defense of an account stated between the parties. Plaintiff is entitled to judgment for the amount.claimed in his complaint.

      Vanderpoel, Cuming & Goodwin {Debs McCurdy, of counsel,) for app’lt; William II. Ford, for resp’t.
   Pratt, J.

The important question is whether the $2,500 check received by plaintiff from defendant the day before Christmas, 1889, was a gift, or whether it was. an advance on account of plaintiff’s salary. The referee has found it to be-a gift, and we do not see how he could reasonably have decided otherwise. The referee’s opinion discusses the matter so fully that there is no need to pursue the argument further. The suggestion that a check cannot be a valid gift has no weight. It may well be that, had the maker of the check stopped its payment, an action against the maker could not have been maintained. But, after the money was paid, the transaction could not be revoked ; the gift was complete. That is to say, although the gift of the check might not be binding and irrevocable, the check was the means and instrument by which the gift of money was effected. Judgment affirmed, with costs.

Cullen, J., concurs.

Dykhan, J.,

(dissenting.)—This is an appeal by the defendant from a judgment entered upon the report of a referee in favor of tiie plaintiff. The action is for services, and the only question of fact involved upon this appeal is whether a check delivered to the plaintiff by the defendant was a Christmas present or a payment on account for services. The check was delivered to the plaintiff by reason of a momentary lapse of memory. In other words, it would not have been delivered if the fact that the salary of the plaintiff had been increased had not escaped the memory of the* defendant. The plaintiff had been in the employment of the defendant for several years previous, and the defendant had been in the habit of making him very handsome Christmas presents. On this occasion, forgetting that the salary had been increased, he handed him. the check in question. Its delivery was, in a broad sense, a mistake. IE all the facts hád been in the mind and recollection of' the defendant, the check would not have been given. It was not delivered in full view of the nature and consequence of the net. It never was the intention of the defendant to give the plaintiff $2,500 in addition to the increase of his salary. Intention controls all transactions, and especially gifts. A delivery of property with intent to make a gift passes the title. Without such intention there is no gift, and the delivery does not pass the title. The admission of testimony respecting previous Christmas presents was erroneous, but we place oar decision upon the ground that the delivery of the check was not a present, and must be allowed to the defendant in this action as a payment.


author: Cullen, J.

text:
    Ernest Jesper, App’lt, v. Press Publishing Company, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    Appeal—Error not cured.
    Error in submitting the question whether a publication was a libel, and in refusing to charge that it was libelous on. its face, is not cured by a verdict in favor of appellant. z
    Appeal from a judgment in favor of .plaintiff, and from an order denying a motion for a new trial.

      A. W. Tenney, for app’lt; Platt & Boivers (John 1L Bowers and Julian 0. Buchley, of counsel), for resp’i
   Cullen, J.

This is an appeal by the plaintiff from a judgment in his favor, entered on the verdict of a jury. The action was for libel, and the plaintiff recovered §250 damages. The plaintiff claims that the court at circuit erred in submitting to the jury the question whether the publication was a libel, and in refusing to" charge that the publication was libellous on its face. We think this claim correct, and that the learned trial court erred in refusing to charge as requested. The article complained of was in no sense a report of a judicial proceeding, but a charge that the plaintiff had committed an unprovoked assault on one Klotz, causing his death. The charge was none the less a libel because it narrated an alleged assault. To sustain a defense of justification, it would be necessary to prove, not-that the offense was alleged, but that it was committed. Moore v. Francis, 121 N. Y. 199; 30 St. Rep. 467; Townsh. Sland. and L. ,(4th ed.) § 281. Therefore, it was also an error to charge that, if the article simply stated that the plaintiff was charged with crime, the defendant was entitled to a verdict. The most debatable question is whether these errors were cured by the verdict, the jury having found for the plaintiff. The rule is that the respondent, to uphold the verdict, must show that the errors complained of could not have affected it. Greene v. White, 37 N. Y. 405. In this case it plainly did not affect the verdict, so far as the question of the liability of the defendant is concerned, for the jury has found that the publication was a libel. But the question remains whether this error may have affected the measure of damages. Were this an action for personal injuries, or injuries to property, ordinarily the question of the right to recover would in no wise be related to the amount of-the recovery. But in an action of this kind, unless ■special damages are alleged, no proof is given of actual damage. The law assumes damages from the publication of the libel, and the amount of damage depends on the character and severity of the libel. In such a case we cannot say that the jury might not have given less damages for a publication, the interpretation of which the court held doubtful, than it would have given had the court charged the publication a libel, as a matter of law.

The judgment and order denying a new trial should be reversed and a new trial ordered; costs to abide the event.

All concur.


author: Pratt, J.

text:
    Susan A. Phelps, Resp’t, v. John W. Phelps et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed Feb’y 12, 1894.)

    .Dower—Action to determine.
    An action may "be maintained to determine inchoate right of dower in property purchased by the husband, the title to which was taken in the name of a third person" for the purpose of depriving her of dower.
    Appeal from an interlocutory judgment overruling separate 'demurrers.
   Pratt, J.

This case involves the question whether a wife can maintain an action to have inchoate dower declared in property not standing in her husband’s name, and to which he never had the legal title. It is raised by a demurrer to' the complaint. Leaving out an allegation in the complaint that the defendant holds an agreement in writing, signed by a person holding the legal title by deed, that it is held for the benefit of the defendant, I think, under the law in this state, the demurrer was pleaded. The complaint fails to state in full what the agreement is, or that it would give the defendant a right to have a conveyance made to himself of the fee. The respondent has quoted a large number of cases, none of which clearly holds that a wife is dowable in property, so held, except cases in other states where there is a statute giving dower in equitable estate held by the husband. While there is no direct authority in favor of respondent’s contention, yet there are expressions which seem to lean in that direction, and an opinion of the •court of last resort can. only settle the question. The case is on the border line, and, in the absence of any direct authority upon, either side, we have concluded to affirm the decision below8 as being the most equitable view of matters.

Affirmed, with costa.

All concur.


text:
    Roslyn Heights Land and Improvement Company, Resp’t. v. Robert Burrows, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    1. Trial—Jury.
    A defendant, who interposes a common law counterclaim, becomes thereupon entitled to trial by jury.
    "3. Same—Motion to frame issues.
    His motion, in such case, to frame issues should he granted of course, unless "plaintiff asks for a reference and shows that the case is referable.
    • Appeal from an order denying a motion that issues, arising on counterclaim and reply, be stated for trial and tried by a jury.

      Roger if. Sherman, for app’lt; J. E. Luddpn, for resp’t.
   Cullen, J.

One of the defendant’s counterclaims was a common-law claim. This, under the Code, § 976, gave him the right to a trial at common law, if he made his application as prescribed by the Code. § 970. Mackellar v. Rogers, 109 N. Y. 468; 16 St. Rep. 406. This counterclaim was therefore triable by a jury, unless it involved a long account, in which case it was referable. To preserve his rights to a common-law trial, the defendant was ■compelled to move to frame issues. This he did, and the plaintiff opposing the application, it was denied. The affidavit of the plaintiff in opposition states that the defendant was not entitled to a jury trial, but that the action was referable. But, though the affidavit is long, it fails to state or show the only thing which would justify a reference; that is, that the. action involved a long account. As the ease stands now, the defendant’s application has been denied, but no order of reference has been made, and none may ever be made unless the plaintiff should apply for it. If the action is prosecuted, the cause will be brought for trial before the court at special term, and the defendant deprived of the mode of trial prescribed by law. We think that the defendant’s motion should have been granted as of course; that the plaintiff, if it believed the counterclaim to involve a long account, should either have resisted it by a counter application for a reference, or by making a similar application after the order framing issues,— an application to which the order framing issues would not be a bar.

The order appealed from should be reversed, with $10 costs and disbursements, and motion granted, with $10 costs, without prejudice to any application that plaintiff may make to refer the action.

All concur.


text:
    William Rock, Resp’t, v. New Jersey and Pennsylvania Concentrating Works, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894)

    Master and Servant.
    Where a person is, among others, furnished to a contractor by the defendant and, by the latter's foreman, put into a dangerous place where he receives an injury, he can recover against the defendant.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes.

      Theo. B, Steele, for app’lt; John M. Gardner, for resp’t.
   Pratt, J.

We think the circuit judge ruled correctly on all points and that no error of law was committed. The point made by defendant that the building was being erected by an independent contractor, and that he only should be held responsible, cannot be available upon the facts shown. The plaintiff was not in the service of the contractor, but of defendant. The contractor, being short of laborers, “borrowed” from defendant a gang of men, among whom was the plaintiff. Under the orders of defendant’s foreman, he was put into a dangerous place, where he received his injuries. Upon the facts, he could recover against the contractor, and also against the defendant. His action was therefore well brought, and the verdict must stand.

Judgment affirmed, with costs.


text:
    Holmes Van Mater, Resp’t, v. Jabez Burns, Jr., et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    1. Witness—Credibility.
    The interest of a party in the result makes the credibility of his uncontradicted testimony a question for the jury.

      2. Evidence—Parol.
    A complete written contract cannot be contradicted by parol testimony.
    3. Verdict—Vacation.
    A verdict will not be set aside in aid of a defense not pleaded.
    Appeal from a judgment entered in favor of plaintiff and from an order denying a motion for a new trial.

      Ayres & Walker,'(Charles J. Patterson, of counsel,) for app’lts; W. K. Van Metier, for resp’t.
   Pratt, J.

The appellants do not claim that any error of law was committed by the court below, but ask that the verdict be set aside upon the sole ground that it is contrary to the weight of evidence. One answer to the application is that it is based entirely upon the testimony of one of the defendants, and it is well settled that, even where the testimony of a party is uncontradicted, his interest in the result makes its credibility a question for the jury. Goldsmith v. Coverly, reported in 27 N. Y. Supp. 116; 56 St. Rep. 857, lays down that rule, citing Honegger v. Wettslein, 94 N. Y 261; Wohlfahrt v. Beckert, 92 N. Y. 494; Kavanagh v. Wilson, 70 N. Y. 177; Elwood v. W. U. Tel. Co., 45 N. Y. 549; and other cases. But in the present case it cannot be said that the testimony of the party is uncontradicted. By the contemporaneous written agreement the right of the publishers to be paid in goods for the advertisement was absolute if the goods were demanded in three years. By the testimony of defendant the goods were not to be delivered except on board ship destined to a foreign port. The bill of sale executed by defendant in August, 1887, six weeks after the advertising was finished, being without condition, was also contradictory of defendant’s testimony. The verdict was warranted by the evidence, if not absolutely required by it.

The point made by respondent, that the contract, being in writing, could not be contradicted by parol testimony, is also well taken. This is not a case where, upon inspection, a contract is seen to be incomplete, which allows that part of the contract not reduced to writing to be proved by parol. Even in such a case the written part of the contract cannot be contradicted, as is here sought to be done. Thomas v. Scutt, 127 N. Y. 133 ; 38 St. Rep. 692.

Another answer to the motion of appellant is that the defense interposed at the trial was not pleaded, and therefore not admissible if objected to. It is not allowable to set .aside a verdict in aid of a defense not pleaded. The only defenses set up in the answer were a denial of the assignment of the claim to the plaintiff of the publication of the advertisement, and of the demand of the goods and refusal to deliver. These were all proved upon the trial, and were not then controverted. That entitled plaintiff to his verdict.

Judgment and order denying new trial affirmed, with costs.

All concur.


text:
    John Raven, Resp’t, v. William R. Smith, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    1. Appeal - Effect of bevebsal,
    Upon the reversal, in the general term, of a judgment, which was the basis of the recovery in the county court, the latter court should, upon some terms, open the judgment, and grant a .new trial.
    2. County coubt — Jubisdiction.
    Though money has been paid into court to discharge a mechanic’s lien, an action can- be maintained, in the county court, against a non-resident defendant to enforce the claim. «
    Appeal from an order denying a motion to vacate a judgment which has been reversed on appeal.

      James É. Bowen, for app’lt; Frederick W. Clark, for resp’t.
   Cullen, J.

The action was brought in the county court to foreclose a mechanic’s lien. The defendant answered. Upon the trial the parties admitted a judgment of the supreme court between the same parties which established the plaintiff's claim for work. Judgment was rendered for the plaintiff. The defendant appealed to this court, and the judgment was affirmed. Raven v. Smith, 24 N. Y. Supp. 601; 54 St. Rep. 94. , Subsequently the judgment in the action in the supreme court was reversed on appeal. Raven v. Smith, 24 N. Y. Supp. 600; 53 St. Rep. 857. Thereupon the defendant moved, on the reversal of the supreme court judgment, to vacate the judgment in this action. The county court made an order vacating judgment, and granting a new trial on terms. Subsequently, on an affidavit of the defendant’s attorney that his motion was not for a new trial, but to vacate and annul the judgment, the court reheard the application and denied it. From that order this appeal is taken.

Upon these facts it will be seen that the only question presented by this appeal,is whether the judgment of the county court was or subsequently became void or not. Upon the reversal of the judgment in the action in this court, which judgment was the basis of plaintiff’s recovery in the county court, doubtless that court should upon some terms, open the judgment, and grant a new trial. Smith v. Frankfield, 13 Hun, 489. This relief the first order of the county court granted, but the defendant expressly repudiated it. He seeks to annul the judgment and obliterate the proceedings in the court without giving the plaintiff even an opportunity to try his case. The supreme' court judgment was, in this action, a mere matter of evidence. The jurisdiction of the county court to render a judgment in no wise depended upon its previous rendition. The objection that the recovery in the first action prevented a further recovery in this action was a matter of defense which, so ■ far as relates to the validity of the judgment here, it is wholly immaterial whether the court decided rightly or wrongly. If wrongly decided, it was but an error to be corrected on appeal. 'Had the defendant actually paid a recovery in the supreme court which included the claim in this action, it may be that he might have had relief by motion, despite the recovery of two judgments. Woods v. Pangburn, 75 N. Y. 495. But no satisfaction is alleged in the papers, or suggested on the argument.

It is further contended that the character of the work performed by the plaintiff did not, under the statute, entitle him to,a lien. This also was a matter to be determined on the trial of the action, and the judgment is conclusive on it.

The only objection tha't in any way goes to the jurisdiction of the court is that, money having been paid into .the court to discharge the lien, thereafter nothing but a common-law action could be maintained by the plaintiff, and that such an action could not be maintained against the defendant in the county court, because he was "a non-resident of the county. We think that the judgment concluded the defendant on this point, but the contention is plainly erroneous. The money deposited stood in lieu of the land for the satisfaction of plaintiff’s claim if he established a valid lien. To reach that fund the plaintiff was obliged to show not only a claim against the defendant, but a lien on the land. The action was, therefore, one to foreclose a lien.

The order appealed from should be affirmed, with $10 costs and disbursements.

All concur.


text:
    Henry A. Root, Resp’t, v. The New York and New England Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    Principal and agent—Powers.
    An agent to ship has power to contract as to terms and conditions of shipment.
    Appeal from a judgment entered upon a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Waller C. Anthony, for app’lt; Frederic S. Barnum, for resp’t.
   Cullen, J.

This is an action to recover the value of a horse shipped for transportation by the defendant, and fatally injured, it is claimed, through defendant’s negligence.. The defendant put in evidence a printed form of contract, signed, not by the plaintiff, but by one Cornue, the shipper, by which it was contended that the defendant was released from liability except for gross negligence, and that the amount of recovery ¡for the value of the horse was limited to $100. We think that the motion for a nonsuit was properly denied. The evidence was sufficient to justify the submission of defendant’s negligence, and the plaintiff’s freedom from fault, to the jury; and there was also sufficient evidence as to the circumstances attending the execution of a contract to submit to the jury the question whether it bound the plaintiff. But the court also submitted to the jury the authority of Cornue to bind the plaintiff by his contract of shipment, and refused to charge that he possessed such authority. This was erroneous. An agent to ship has power to contract as to the terms and conditions of shipment. Shelton v. Merchants' Despatch & T. Co., 59 N. Y. 258; Nelson v. Hudson R. R. R. Co., 48 N. Y. 498. For this error the judgment must be reversed.

Judgment and order denying new trial reversed, and new trial ordered; costs to abide the event.