author: Daly, Ch. J.

text:
    Sarah B. Brush et al., App’lts, v. The Manhattan Railway Company et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed February 1, 1892.)

      ■ 1. Raiizroad—Elevated—Damage to property—Evidence.
    Where, notwithstanding the erection of an elevated railroad, the rental value of property increased twenty per cent prior to the addition of improvements, the court properly refused to find that the increase was caused by such additions.
    2. Same.
    Where the testimony shows an increase in the rental value of property-on the line of an elevated road, beginning on the commencement of the operation of the road and continuing, with some fluctuation, for twelve years, it cannot be claimed that the road has diminished the rental value of the property.
    3. Same—Increase of rental value in neighboring streets.
    The claim that but for the presence of an elevated railroad a much larger rental could have been obtained from property along its line cannot be sustained by testimony showing an increase of rental values in neighboring streets, as this is due to the proximity of the road.
    4. Same—Injunction.
    Where the evidence shows no injury to plaintiff’s property from the erection of the road, it is proper for the court to dismiss the complaint and refuse an injunction.
    Appeal by the plaintiffs from «a judgment of the special term of this court dismissing the complaint on the merits, with costs.
    The action was brought to restrain the operation of the defendants’ elevated railroad in front of the premises of the plaintiffs on Sixth avenue and Eighth avenue in the city of New York, and to obtain damages for loss of rental values.

      B. W. Tyler, for app’lts; Davies & Bapallo, for resp’ts.
   Daly, Ch. J.

The trial judge found that the plaintiffs had made no such proof of damage as entitled them to an injunction against the operation of the elevated railroad, and the appellants claim on •this appeal that the judge erred in so finding with respect to the-property on both avenues. On Sixth avenue the plaintiffs owned three houses and lots, numbers 441, 443 and 445. situated on the-west side between Twenty-sixth and Twenty-seventh streets, undone house and lot number 507, on the west side between Thirtieth and Thirty-first streets. As to the first three houses and lots it was in evidence that the rents received from each house in 1877, before the building of the railroad, was $1,500 per annum, and that there was a steady 'increase in such rents from the year 1882, when plaintiffs became the owners, down to the year 1890, at which time the annual rentals were, respectively, $1,900, $2,200 and $2,200, and the trial judge so found, but appellants allege that, he failed to consider the fact that in 1883 number 441 was extended in the rear twenty feet, and numbers 443 and 445 were-similarly extended thirty feet. The argument, of course, is that, the increase in rentals from these additions ought not to be considered, and that without such increase there would have been an actual loss of the rental values. This argument, however, finds-no support in the testimony

Taking number 441, it appears to have rented for $1,500 per annum for six years up to and including the time of building the elevated railroad in 1878. In 1879 the rents fell to $1,350, but. rose immediately in 1880 to $1,800, and so continued for nine years thereafter. The additions were made to the premises in 1$83, but the rents had increased twenty per cent without them, notwithstanding the operation of the elevated railroad, and no increase by reason of such additions was shown.

With respect to number 443, the rent remained at $1,500 for eight years from 1872 to 1879, inclusive, rose to $1,600 in 1880, and to $1,800 in 1882; thus showing an increase of twenty percent, notwithstanding the railroad; it became $2,000 in 1883,. when the improvements were made, and so remained until the increase to $2,200, in 1890.

As to number 445, it 'was shown that the rent remained the-same for the first three years of the operation of the railroad that-it had been for six years before, and then rose at the rate of $100-per annum for the next three years, and increased from $1,800-to $2,000 in 1887 and then to $2,200 in 1890. ■

As to number 507, the evidence showed a rental at $2,200 for five years from 1872 to 1876, inclusive, and then a fall to $1,800-in 1877, the year before the railroad was operated. In 1878, when the operation of the road commenced, the rent rose to $1,850. This increase was lost in the next two years, but in 1881 there was a gain of $200 per annum; which continued until 1885, when there was a fall of $200, continuing for two years: succeeded by á gain of like sum in 1887, which continued to the time of the trial. It would seem impossible to trace any of these fluctuations to the presence of the railroad, and we must look for the cause in the character of the neighborhood in which the premises were situated, which was fully exhibited at the trial.

From the figures as to all these Sixth, avenue parcels, it cannot be claimed that the proof shows that the rental values have been diminished by the maintenance and operation of the defendants’ road. If the plaintiffs’ contention is correct, we should expect to see a considerable fall in rentals coincident with the commencement of the operation of the road, or immediately thereafter, with a continued low rate or gradual decline; but the evidence fails to show any loss of rents from the first three parcels and the loss upon the last parcel occurred before the railroad was operated. It is, however, contended that the rentals of the year 1877, and indeed of any year between 1873 and 1877, are not proper standards for measuring the effect of the railroad, upon the property, because there was no recovery in values of real estate from the well-known panic of 1873 until the year 1879; but this standard need not be used to sustain this judgment, because the rental of number 441 was shown to be the-same in 1872 as in 1879, and up to 1879; the rental of number 443 the same in 1872 as in 1873 and up to 1880; the rent of number 445 the same for nine years, beginning in 1872, and the-rent of 507 the same in 1872 as in the ensuing three years. So that it appears that notwithstanding the presence of the elevated railroad, the premises have not ceased to yield a rental as large-as that obtained from them even before the panic of 1873.

It is claimed, however, that but for the presence of the railroad a much larger rental would be now obtained from these premises,, and could have been obtained from them from 1880 to the present-time because of the growth of business and a demand for property in this neighborhood. The alleged proof of this is submitted in testimony showing an increase of rental values in neighboring streets. But is not this increase explainable by the presence and. operation of the elevated railroad in Sixth avenue, which may have largely enhanced values in adjacent streets near the stations-of the railroad ? Such an increase proves nothing for the plaintiff. Without the railroad the side streets would be worse off, but the-plaintiffs no better off. They are bound to show an actual loss to their property. . They offered to prove diminution of rents of' property near their own in the same avenue, but this evidence-only showed that the plaintiffs had not experienced the losses-which other owners on the avenue had sustained, for plaintiffs-received as much rentals after the railroad as before it.

With respect to the Eighth avenue property of plaintiffs, consisting of five houses and lots situated between One Hundred and Fifteenth and. One Hundred and Sixteenth streets the same considerations apply. The increase of rents uppn adjoining streets proves the benefit to side streets of the proximity of the stations of the elevated railroad, and the better rents obtainable for living apartments on such streets shows how much more desirable they are than the avenue for residences; but, on the other hand, shops would bring no rental on the side streets, and the-disadvantages of the different classes -of property are thus, perhaps, counterbalanced. The outcome of the whole testimony as-to this Eighth avenue property is, that if the railroad were taken. away the values on both streets and avenues would probably fall, and, therefore, their present value is unquestionably due to the conveniences afforded by the elevated railroad. It is certain that the plaintiffs’ property was specially benefited by the station at One Hundred and Sixteenth street.

Tó realize the full advantages of it they and other property owners have constructed an elevator for railroad passengers, as the railroad structure is of greater height at that point than at many other stations on the road. ¡No loss of rents of the Eighth avenue property caused by the elevated railroad could be shown by plaintiffs, because the property was not improved until the operation of the elevated railroad brought upper Eighth avenue and the neighboring streets into request for improvement. The argument of the plaintiffs is, that while the elevated railroad has enhanced values in the neighborhood, yet the superior rentals of property in the side streets show that avenue property would bring as much but for the presence of the railroad. I think, however, that the evidence leads rather to the.conclusion that if the railroad were removed values in the avenue as well as in the side streets would be materially reduced. The elevated railroad, therefore, does not injuriously affect the value of the plaintiffs’ Eighth avenue property.

This view is confirmed by the most recent utterances of the court of appeals upon the subject, in the cases of Bohm v. The Met. El. R. R., and Somers v. The Same, 42 St. Rep., 247, decided since the argument of this appeal. In these cases the court says: “ Is the owner to be permitted to recover as damages the amount which it is guessed at or surmised he would have sustained by the depreciation in value of bis land, if it had not been for the fact that it had in truth increased in value ? What semblance of justice would there be in such a rule? The only possible injury which the defendants could cause him by their action lies in the injury they might do his remaining land. An investigation of ■that question reveals the fact that this land has actually increased in value since the taking spoken of, and the fact is not claimed or ■proved that it would have increased as much but for such taking, ■and yet by a course of what may be called abstract reasoning the ■defendants;are to be compelled to pay such a plaintiff an amount of money as representing damages he never suffered. Any reasoning, abstract or otherwise, which permits such a result is lame somewhere.

“ The defendants are not, however, compelled to base their claims of exemption upon quite so broad a foundation. They say it appears by the uncontradicted evidence that the railroad largely caused the increase in value of all the lands on Second avenue, including the plaintiffs’ lots, and as I have said the evidence bears out such claim. If this be the fact, bow can it be-said the plaintiffs have suffered damage? There is no shadow of evidence that if the defendants had not taken this property and built their railroad the property of the plaintiffs would have been as valuable or anything like as valuable as it is. The plaintiffs have in truth been specially benefited by this railroad, although quite a number of others have also participated therein. This-special cause is the railroad, and a special benefit may result to-many from such special cause. The fact that the other property in the vicinity and in the side streets has been more than proportionately increased in value by reason of the existence of the defendants’ road is not of the slightest importance upon the question of whether the plaintiffs have been injured by defendants’ conduct.

“ The probability is very high that the property in the side streets would have been immeasurably below what it now is in value but for the operation of these elevated roads. The same high degree of probability exists in regard to the property on Second avenue, as is gathered from the evidence of witnesses in •the cases. It is, however, abundantly clear from the evidence abundantly given that the property of plaintiffs has not suffered inj ury or damage by the wrongful acts of the defendants, and where the plaintiffs have in fact sustained no loss it is no hardship which prevents their recovering anything from defendants.. It is only necessary for us in the case to decide that if the prop-. erty of the plaintiffs have increased in value since the taking of these easements or a portion of them, and if such increase is-largely due to the building and operation of the defendants’ roadr and if such increase would not have been greater but for the action of defendants, then the plaintiffs have suffered no damage. Whether the increase is common to every other owner in the avenue, and is greater in proportion with some owners of property in the side streets than with the plaintiffs, are matters of no importance. The plaintiffs are not damaged because their neighbors are-benefited to an even greater extent than they are by the defendants’ road.”

Complaint is made, however, that the appellants have been injured by the exclusion of proper testimony offered by them and the admission of improper evidence on the part of the defendants. As to the Sixth avenue property, plaintiffs offered to show that the rental of certain other Sixth avenue property, to wit: the St. Ovner Hotel, fell from $14,500 in 1876 to $9,000 in 1878, and h> $4,500 in 1879-80, and had risen to only $7,000 at the present time; but the evidence was excluded. It certainly seems immaterial to show with respect to that property a loss which the evidence showed the plaintiffs had not experienced with their own. The evidence did not tend to show what the plaintiffs’ property would be worth if the elevated railroad were removed. Had plaintiffs lost any rents after the railroad went into operation the evidence would be competent as showing that property similarly situated had been similarly affected, and it would be a fair deduction that the railroad was the cause of the loss; but the plaintiffs lost no rents, and it could not be reasoned that as the St. Omer Hotel rents had decreased fifty per cent since the operation of the railroad, plaintiffs’ rents were now fifty per cent less, or any than-they would be without the railroad.

As to the Eighth avenue property, defendants’ witnesses were permitted to say, against plaintiffs’ objections, what had been the effect. upon the plaintiffs’ property and other property in that vicinity by reason of having the elevated railroad station and the elevator at the corner of One Hundred and Sixteenth street, and also to .say what had been the effect upon the selling of lots and buildings, and what the witness had observed in regard to such effect This testimony was not objectionable. In the Doyle case, 29 St. Rep., 139, the court of appeals held the following questions proper: “ What have you observed in respect of the effect of the elevated railroad upon property in Sixth avenue ?” and “ What has been the effect of the elevated railroad upon the business in Sixth avenue ?” as calling, not so much for the opinions of the witnesses, as for facts open for their observation. Plaintiffs, however, complain that they were not allowed to give similar testimony. The questions to their witness: “ Has your property been benefited, or any other property that you know of benefited by the existence of an elevator or the station?” and “Has the elevator benefited any property that you know of ?” were ruled out, but it appears that the witness was subsequently allowed to testify on "this subject, and said that the elevator was a benefit to property in the neighborhood, but the station was not. As the sole use of the elevator was to make the station available, it is not easy to see how the former ■could be a benefit to property in the neighborhood without the latter.

It is hardly necessary to more' than notice the exception of plaintiffs to the exclusion of the testimony sought to be elicited from the witness King as to conversations and declarations by members of the corporation which built the elevator as to the railroad being a blessing or the reverse, etc. They were not offered for the purpose of impeaching other witnesses, but only because the defendants had been permitted to offer in evidence a ■circular issued by the company to induce subscriptions to the building of the elevator in order to realize all possible benefit from the railroad station at One Hundred and' Sixteenth street. The witness, Louis S. Brush, a member of the company and subscriber, was cross-examined by defendants as to the existence of the facts mentioned in the circular, and he affirmed its truth. The admission of this evidence manifestly did not authorize the plaintiffs to show contrary declarations by the. members of the •company among themselves.

The last contention of appellants is, that even if no pecuniary •damages were proved to result to the plaintiffs’ properties from the wrongful acts of defendants the complaint should not have been dismissed, but an injunction should have been decreed. 'This objection is disposed of in the opinion of the learned judge who tried the case, which is supported by the decision of the court ■of appeals in the case of Gray v. The Manhattan R., 35 St. Rep., 32, in- which it is said: “An equity court is not bound to issue an injunction when it will produce great public or private mischief, merely for the purpose of protecting a technical or unsubstantial right. * * * The injunction is so dependent upon the dam■ages that the general term could not, with propriety, reverse the judgment as to damages and permit it to stand as to the in junelion,” and by this general term, in Purdy v. The Manhattan Railway, 36 St. Rep., 43, holding that “ in order to give plaintiff ,-a right to injunctive relief, it is incumbent upon him to establish .a substantial injury and not merely a technical wrong entitling ■only to nominal damages.” .

The judgment appealed from should be affirmed, with costs.

Bischoff, J., concurs.


source: Caselaw Access Project

author: Allen, J.

license: Public Domain

text:
    John Charlton et al., Resp’ts, v. Thomas Webster et al., App’lts.

      (New York Common Pleas, General Term,

      Filed February 1, 1892.)

    Pleading—Demurrer.
    Plaintiffs replied to defendants’ counterclaim, showing performance of matters of contract wherein the counterclaim alleged them to be in default, and-to this defendant demurred. Held, that the demurrer admitted performance of the contract, so that all basis for the counterclaim was taken away, and the demurrer being adjudged frivolous, plaintiff should be given judgment on the counterclaim.
    Appeal by defendant, Thomas Webster, from an order granting plaintiffs’ motion for judgment on the ground of frivolousness of defendants’ demurrer to plaintiffs’ fourth reply to the counterclaim contained in the answer of said defendant.

      Samuel W. Weiss, for resp’ts; Henry Wehle,' for app’lts.
   Allen, J.

The order is appealable to the general term. Elwood v. Roof, 82 N. Y., 428.

The action is brought to foreclose a mortgage upon certain real -estate. The mortgage was made by one Mclnerny to plaintiffs, is dated August, 1889, and recorded August 27, 1889. By various mesne conveyances subsequent to-the making and recording of the mortgage the title to the property became vested in Georgiana Webster, who . is now the owner of- the equity of redemption. It does not appear from the complaint what relation 'Thomas Webster holds to the mortgaged premises, nor does the ■complaint pray for any personal judgment for deficiency against him. Defendant Thomas Webster, however, answered the complaint, setting up among other defenses a counterclaim as follows:

“ For a fourth and further defense and by way of counterclaim to plaintiffs’ complaint, this defendant hereby reiterates all the facte stated in the second defense, and alleges :
“ That on the 5th day of April,1890, the plaintiffs and this defendant entered into an agreement by the terms of which said plaintiffs undertook to supply to this defendant for the purpose of enabling him to finish certain houses "therein described, including the mortgaged premises, all the wood material required for the finishing of said houses, and which said plaintiffs had omitted to ■supply under their contract with said Thomas Mclnerny as hereinbefore alleged.
“ That this defendant has complied with all the terms and conditions of the said agreement on his part to be complied with.
“ That plaintiffs have failed to comply with their part of the said agreement, and that by reason thereof the defendant has sustoi ned great loss and injury, to his damage five thousand dollars.”

The plaintiffs replied to the counterclaim denying all the averments therein contained, and then proceeded as follows :

L' IY. Further replying, these plaintiffs aver that on or about April 5, 1890, they entered into an agreement with said Thomas Webster, bearing date the last mentioned day, by the terms of which they agreed to furnish said defendant Thomas Webster a small portion of trim for the houses in said agreement mentioned, as near as possible to the time it may be required; that the house on the premises mentioned in the complaint was one of the said houses ; that these plaintiffs furnished all of the trim so agreed to be furnished for the house on the premises described in the complaint, and as to the residue thereof part has been furnished, and the remainder plaintiffs have always been ready and willing to furnish, but the same has never been required for the said buildings.”

To this fourth clause of the reply the defendant, Thomas Webster, demurred.

The plaintiff moved for judgment on the demurrer as frivolous, upon the counterclaim contained in the answer. The motion was. granted, and an order was entered that the motion be granted, with ten dollars costs, and that the plaintiffs have judgment, against the defendant, Thomas Webster, upon his demurrer as. frivolous upon the counterclaim contained in the answer of said defendant.

As we construe the defendant’s counterclaim, it is based entirely upon an alleged breach of a contract of April 5,-1890. The portion of the reply demurred to set up in substance that that contract was not as stated in the answer, but was as stated in the reply, and that the contract as set forth in the reply had been fully performed.

The demurrer admits this; consequently there remains no basis for the counterclaim. When the demurrer is adjudged to be frivolous, the necessary result of that adjudication is that on the conceded facts the defendant has no cause of action on his counterclaim, and the order directing judgment for the plaintiff thereon was correct

The - order appealed from should, therefore, be affirmed, with costs.

[This appeal was among those heard at the May general term, 1891, and assigned for opinion to the late Judge Allen, but remained undisposed of at the time of his death. He had prepared a memorandum opinion, which was found among his papers, and is herewith, filed! We have satisfied ourselves that the views therein expressed are correct, and caused the opinionoto be prepared as above, in which we concur, crediting the opinion, however, to Judge Allen, as it seems to us it should be so credited.]

Daly, Oh. J., and Bischoff, J., concur.


text:
    The Bradley Fertilizer Co., Respt, v. The South Publishing Co., App’lt.

      (New York Common Pleas, General Term,

      Filed February 1, 1892.)

    I. Corporations—What constitutes—Liability.
    Plaintiff sold goods to one C., who was doing business under the name of “ The South Publishing Co.” Seven months after the last delivery of goods, C., with others, incorporated “ The South Publishing Co.” Held, that the defendant could not beheld liable as a defacto corporation for the goods so purchased, as prior to its actual incorporation there was no use of corporate franchises, and nothing in the nature of corporate proceedings.
    2. Same—Account stated—Ratification of agent’s act.
    The act of defendant’s officers in receiving and retaining an account for such goods rendered by plaintiff does not make the defendant liable as on an account stated, or as a ratification of an agent’s act, since there could have been no account stated where there had been no prior transactions between the parties, and no ratification of an act of agency which was done at a time when there was no principal, and consequently no agent.
    Appeal by defendant from a judgment of the general term of the city court, affirming a judgment of the special term in favor of plaintiff for $877.92, entered upon the verdict of a jury. The action was for a balance of $309.60, alleged to be due for goods sold and delivered to defendant between February, 1885, and May, 1887. The answer denied the sale and delivery by plaintiff of the goods to defendant.

      Herbert H. Gibbs {Alan D. Kenyon, of counsel), for app’lt; George Walton Green, for resp’t.

       Reversing 39 St. Rep., 218

   Daly, Ch. J.

It was proved that the goods for which the action was brought were sold and delivered by the plaintiff prior to May 28, 1887, and that the defendant was not incorporated until January 6, 1888; nevertheless the plaintiff was allowed to recover as upon a sale to defendant; and this recovery is attempted to be sustained upon the ground: 1st. of a de facto corporation existing at the time of the sale; and 2nd. of an account stated between the plaintiff and defendant.

The goods in question were sold and delivered by the plaintiff .to one Clough,-who, under the name of “ The South Publishing Co.,” was issuing a publication in which the plaintiff advertised, paying for such advertising in its goods, and the transactions by the plaintiff were with Clough under his name of The South Publishing Co., not knowing that that appellation was assumed by Clough for his individual business. About seven months after the last delivery of goods Clough with others, among them his employees, organized under the laws of Florida the defendant company and continued his correspondence with plaintiff through said company; and the plaintiff having addressed to The South Publishing Company an enclosure with its bill or account for such goods, the officers of the company received the same, acknowledged it and retained it without objection. Hone of the goods included in that account, however, were received by the defendant corporation.

The defendant cannot be held liable upon any theory of a purchase of these goods by a de facto corporation. A de facto corporation is constituted by a user of corporate franchises and by acts in the nature of corporate proceedings, under color of organization, Childs v Smith, 55 Barb., 56, or where proceedings have been taken in professed compliance with some law authorizing the fonnation of a corporation and there are acts of subsequent user, M. E. U. Church v. Pickett, 19 N. Y., 482, or where there is a user of corporate franchises under color of an act authorizing the incorporation. Bank of Toledo v. International Bank, 21 N.Y., 542.

There was nothing of the kind in this case. There was no attempt at organization ; no use of corporate franchises and nothing-in the nature of corporate proceedings prior to the actual incorporation of the defendant, and this was long after the sale of the: goods from plaintiff to Clough. Clough was not purchasing for any corporation, or contemplated corporation, but for himself individually; and his use of the name, “The South Publishing Co.,” was a mere representation that there was an existing corporation when none existed in law or in. fact. The act of the officers of. the defendant in receiving and retaining the account rendered by the plaintiff does not make the defendant liable. Had the corporation existed when the goods were purchased and had such purchase been made by an agent without authority, subsequent, ratification might be inferred from the receipt and retention of the account. Olcott v. Tioga R. R., 27 N. Y., 546; Scott v. Middletown R. R., 86 id., 200; Hoyt v. Thompson's Ex'r, 19 id., 207. But there can be no ratification or affirmance of an act of agency' which was done at a time when there was no principal, and consequently there could be no agent. Nor could there be an account stated between the plaintiff and this defendant as to transactions occurring before the defendant existed. An account presumes prior transactions between the parties. Here there were no. such transactions. “An account stated is an agreement between persons who have had previous transactions fixing the amount due-in respect of such transactions and promising payment. ” Abbott’s-Trial Evidence, 458. An account stated is merely an admission of the correctness of the items and the stated balance. A right of action, as upon a promise to pay, necessarily follows, but there is no estoppel. The account may be impeached for errors or mistakes. If it appears that any of the charges are not in law or in equity proper claims against the party debited with them, no promise to pay will be implied in respect to the balance into-which they entered and of which they are a part. Young v. Hill, 67 N. Y., 172. As the goods included in the. account sent to the defendant had never been sold to nor received by it, nor properly chargeable against it, there was no basis in law or in equity for the claim and there can be no liability as upon an account stated.

The judgment appealed from must be reversed and a new trial ordered upon the exceptions, with costs to abide the event.

Bischoff, J., concurs.


author: Bookstaver, J.

text:
    Jastrow Alexander, App’lt, v. James R. Griswold et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed February 1, 1892.)

    Uandlord and tenant—Re-entry—Unlawful detainer.
    A landlord having made a quiet entry and regained possession of leased premises under a claim of right, an action of unlawful detainer cannot be maintained against him or any person to whom he thereafter leases the premises.
    Appeal by the petitioner from a final order of the district court of the city of Mew York for the fourth judicial district, ■dismissing the petition.

      Frederick 0. Leubuscher, for petitioner, app’lt; Hobbs & Gifford, for resp’ts.
   Bookstaver, J.

The petition alleged that the respondents Rad forcibly entered and detained from the petitioner the first floor and basement of premises situate on the southwest corner of Hester and Allen streets, and known as Mo. 84 Hester street ■and 37Allen street, .to the possession of which he was entitled as lessee, which the respondents denied. The respondent Gris-wold is the owner of the property in question, and leased the portions referred to in the petition to the petitioner on the 15th March, 1888, for a period of five years. The lease contained the usual provision that the lessee would not assign, let or under-let the whole or any part of the premises without the written ■consent of the lessor, under penalty of forfeiture and damages; and provided that in case'default be made in any of the covenants ■contained in the lease, that it should be lawful for the lessor to re-enter' the premises and remove all persons therefrom. The petitioner had been in the possession of the same premises for several years before the execution of this lease.

On the trial evidence was given on the part of the respondents tending to show that in the year 1890 one Morris Weinstock ■took possession of the premises and conducted a saloon there until the 18th March, 1891; and also that immediately on taking possession of the premises an insurance policy standing in the name of the petitioner was transferred by the Citizens’ Insurance ■Company to this Weinstock, which was subsequently renewed in'his name; the property on the premises was also insured in the name of Weinstock in the Hartford Insurance Company. On the 18th March, 1891, a fire occurred in the premises, and the proofs of loss occasioned by the fire were made out in the name of, and sworn to by, Weinstock, in which he says: “ The property insured belonged to Morris Weinstock, and no other person or persons had any interest therein,” the money on the policy was paid to him and a receipt given by him therefor. Mr. Fling, the superintendent who had charge of the repairs, testified that there were fixtures and personal property on the premises when he went there to make the repairs; that there was a safe there on which was Weinstock’s name, and that all the property was removed from the premises by Weinstook or parties sent there by him; that Mr. Weinstock was frequently upon the premises, but that the petitioner never visited them or showed any interest in them. Shortly after the fire the respondent, Gris-wold, having ascertained that Weinstock had been conducting, the business as his own, buying the ales, beers and wines in his own name, and had been insured as the owner of the personal property, tendered back the rent already received for the month of March without the knowledge of these facts, and notified the petitioner that he elected to declare the lease forfeited under the breach of the covenant not to assign or sublet; and thereupon, quietly and without force, took possession of the premises under this claim, thereafter repaired the same, and when the repairs were completed received and kept the keys, all the time asserting his right to the possession of the premises as the petitioner well knew, and the latter asserted no right whatever to their possession until a month after they were rented by Griswold to Mrs, Cohen. After the fire he admitted he had not been in actual possession of the premises and said he did not care anything about the place; that he did not want to have anything to do with it; that he had lost some money there, and that he thought whoever got the lease ought to make it good to him. After the respondent Cohen had been in the quiet possession of the premises, under her lease for about a month, the petitioner went to the store with some men and entered it by force and deposited several boxes therein, which were thereafter removed by the respondent Cohen, and this removal constituted the forcible detainer complained of.

A forcible entry and detainer is a violent taking and keeping-possession by one of any lands and tenements occupied by another by means of threats, force or arms, and without authority of law. It is essentially a proceeding to protect the actual possession of real estate against unlawful and forcible invasion, to remove occasion for actual violence in defending such possession, and to punish breaches of the peace committed in the entry upon or the detainer of real property. 8 Am. & Eng. Encyclopedia of Law, 102, and cases there cited.

The only questions to be decided are whether or not the plaintiff was lawfully or peaceably in possession of the premises sought to be recovered, and whether or not the respondents unlawfully entered or forcibly detained the same. Neither the right of entry nor the right of possession is involved in the issue. Carter v. Newbold, 7 How., 166; Kelly v. Sheehy, 60 id., 439; Beeler v. Cardwell, 29 Mo., 72; Beauchamp v. Morris, 4 Bibb. (Ky.), 312; Carter v. Anderson, 34 St. Rep., 756; Cain v. Flood, 21 Civ. Pro., 116; 38 St. Rep., 196.

It is clear from the evidence that for more than two months prior to the attempted entry upon these premises by the petitioner the respondent Griswold had been in the peaceable and actual possession of the same, and the respondent Cohen had been in the like peaceable and actual possession for more than a month; the possession of both being under a claim of right.

In Cain v. Flood, supra, it was held that it was immaterial that the original possession had its origin in force. In Lawton v. Savage, 136 Mass., 111, it was held that one forcible entry was no excuse for another.

The defendant Griswold, having declared the lease forfeited, had the legal right, as the owner of the fee, to peaceably re-enter the premises. He did so, and the question whether the lease, as a matter of fact, had been violated will not be tried in this action. The entry of the owner being peaceable and lawful, there could be no wrongful detainer, and hence these proceedings cannot lie.

Judge Andrews, in passing upon this point in Bliss v. Johnson, 73 N. Y., 529, said “ the true owner of land wrongfully held out of possession, may watch his opportunity, and if he can regain his possession peaceably, may maintain it arid lawfully resist an attempt by the former occupant to retake possession, nor will he be liable to be proceeded against under the statute of forcible entry and detainer. There can be no wrongful detainer by the true owner where the entry was both lawful and peaceable.” See also Wood v. Phillips, 43 N. Y., 152. In People v. Fields, 1 Lans., 241, Judge Morgan said: “After the tenancy has been terminated by notice, the owner having gained peaceable possession of a portion of the premises, may use as much force as may be necessary to overcome the tenant’s resistance to his taking possession of the residue.” In Kelly v. Sheehy, supra, the court said, “ No one has the right to assert his own title with force and violence against another in peaceable possession under color of title and claim of right.”

In the case under consideration, the respondent Cohen was in possession under a lease, and whatever may have been the rights of the plainliff, he could not assert them as against the party in possession, and as between two parties claiming under separate leases, the court will not try title in such proceeding.

In Jackson v. Elsworth, 20 Johns., 183, the court said, “If a landlord has re-entered, he has undoubtedly chosen the more simple and effective remedy under the statute; * * “ but when the original entry is lawful, and apparent right to possession is gained, the law will not suffer that right to be overthrown by the mere act or entry of claimant; his remedy is by action.”

The respondent Griswold having made a quiet entry and gained possession under a claim of right, the law will not suffer that right to be attacked, except by an action duly brought by the respondent for that purpose. McAdam’s Landlord & Tenant, 2nd ed., parag. 104; People v. Fields, supra; Burns v. Bryant, 31 N. Y., 453.

We therefore think the final order should be affirmed, with •costs.

Bischoff, J., concurs.


author: Bischoff, J.

text:
    Isaac Rabinowitz et al., Resp’ts, v. Simon Cohen, App’lt.

      (New York Common Pleas, General Term,

      Filed February 1, 1892.)

      1. Fraud—Measure of damages in action for.
    In an action for damages for fraud and deceit in procuring plaintiffs to manufactúre certain articles, the measure of damages is the actual cost of their manufacture.
    3. False bepbesentation—Evidence op knowledge.
    Where a person makes a false representation and the facts represented are of such a nature that the party making the representation may be assumed to have personal knowledge of them, proof of their falsity is sufficient evidence of his knowledge of the "falsity of the representation when it was made.
    Appeal from a judgment for plaintiffs rendered in the district court of the city of Mew York for the fourth judicial district, in an action for damages for fraud and deceit.

      A. A. Sarasohn, for app’lt; Louis Lavens, for resp’ts.
   Bischoff, J.

In an action for damages for fraud and deceit the measure is not what plaintiff would have realized had the representations shown to Be false been true, but what he has lost by reason of the deceit. Defendant is bound to make good the loss sustained, such as money's that plaintiff has paid out and interest, and any other' outlay legitimately attributable to defendant’s fraudulent conduct; but this liability .does not include the expected fruits of an unrealized speculation. Smith v. Bolles, 132 U. S., 125. The claim was that defendant, as the pretended agent of Steinberg & Co., a fictitious firm, had falsely and fraudulently induced plaintiffs to enter into a contract for the manufacture and sale to them of 400 paper boxes at the agreed price of twelve dollars per hundred, and there was evidence to the effect that the cost of labor and material was ten dollars per hundred or forty dollars for the four hundred. The judgment was for forty dollars and it seems, therefore, that the proper measure of .damages was applied by the trial justice.

The judgment, however, appears to be excessive in another respect. It was conceded that the first two hundred boxes were ordered by the defendant, who at the time represented himself as authorized by Steinberg & Co., of 212 Stan ox street, Brooklyn, to-make the contract for the manufacture and sale of such boxes to them. It was also conceded that there was, as a matter of fact, no-such firm as Steinberg & Co., and that defendant made the representations to, and contract with, plaintiffs at the suggestion of one-Moses Diskin, a rival manufacturer. It was immaterial that the defendant did not at the time know Steinberg & Co. to be fictitious. His representation that as the agent of Steinberg & Co. he was authorized to conclude a contract for the sale and manufacture-of paper boxes to them implied that they were an actual and existing firm, and plaintiffs were thereby induced, to give them credit in undertaking the expenditures necessary in the manufacture of - the boxes. That defendant acted in good faith in making the representation is no defense, for he who deliberately represents that to be true which he does not know to be true and induces another to act thereon, is to be placed in the same category with him who represents that to be true which he knows to be false, Am. &Eng. Ency. of Law, “ Deceit,” Vol. 5, 319 ; Story’s Eq. Jur., § 193, and where the facts represented are of such a nature that the party making the representation may be assumed to have personal knowledge of them, proof of their falsity is sufficient evidence of his knowledge of the falsity of the representation when it was made. Morgan v. Skiddy, 62 N. Y., 319.

As to the remaining two hundred boxes, however, it appears-that plaintiffs were induced to proceed with their manufacture-by reason of the receipt by mail of a postal card from “ Steinberg & Co.,” bearing an order to that effect. It was conjectural only that the postal card emanated from defendant. There was no evidence to. that effect, and the uncontradicted testimony of Diskiii, a witness for the defense, was that the witness was the author of the postal card.

.The judgment appealed from should, therefore, be reversed, with costs to the appellant, unless respondents stipulate to reduce-the judgment to twenty dollars and the Posts of the court below; and upon filing such a stipulation the judgment will be affirmed, as reduced, without costs of this appeal to either party.

Bookstaver, J., concurs.


text:
    John F. Neilson, Resp’t, v. Charles E. Ray, App’lt.

      (New York Common Pleas, General Term,

      Filed February 1, 1892.)

    Parent and child—Liability of parent for medical services—Evidence.
    In an action brought to recover for medical services rendered to defendant’s daughters, the testimony .showed that both daughters had spoken of defendant as “papa that bills had been sent him for their tuition, and letters received from him enclosing checks in payment: that they were at. boarding school and needed medical attention at the time the services were-rendered, and that during the previous year, when at the same school, plaintiff had rendered them like services and been paid by defendant through the treasurer of the school. Held, that the evidence was sufficient to establish the fact that the persons treated were defendant’s daughters, and impliedly authorized to engage the services.
    Appeal from a judgment rendered in the district court of the city of Hew York for the third judicial district.

      Howard A. Sperry, for.app’lt; Q. A. G. Barnett, for resp’t.
   Bookstaver, J.

This action was brought by the respondent as assignee of Dr. James R.“Wood to recover the sum of seventy seven dollars for medical services rendered by the assignor to the daughters of the appellant. The latter was personally served with the summons, appeared in the action and interposed a general denial. This imposed on the plaintiff in that action the duty of showing by evidence that the persons treated were the daughters of the defendant, that the services rendered were necessary, and some assent or authority by or from him, Poock v. Miller, 1 Hilton, 108, or that there was an absolute necessity for the immediate rendition of the services, where the law raises an implied promise to pay in consideration of the benefit conferred on the parent by such services, although rendered without the parent’s actual request.

On the trial defendant’s counsel apparently relied upon the plaintiff’s inability to prove that the-persons treated were defendant’s daughters, and were treated by his assent or authority. We think the evidence sufficiently establishes the fact that they were-Ms daughters. A witness was produced, who testified that she had given music lessons to one of them at their home in Harlem; that she had then heard both of them speak of the defendant as u papa ”; had sent him bills for her tuition; had received letters from him enclosing checks in payment, thus showing he had at least assumed the parental relation to them which carries with it the moral duty of caring for their health. It was testified that they needed medical attention at the time the services were rendered for throat difficulties and colds. They were then not at home, but at school at the Convent of the Sacred Heart, whére they had been the previous year, and where the doctor had attended one of them, for which attendance he had been paid by defendant through the treasurer of the convent. The services having been rendered on the same request, and under the same ■circumstances as those to recover for which this action is brought, we think sufficiently established an implied authority to engage the services. The justice has found in plaintiff’s favor and his ■finding cannot be disturbed. Henry v. Betts, 1 Hilt, 156. In Baker v. Keen, 2 Stark., 501, less evidence was considered sufficient to warrant a jury in finding such implied authority existed, for it was held that evidence showing the father had placed a ■son at a military college and paid his expenses there was sufficient to warrant the presumption of authority from the father to ■order regimentals and other articles for his equipment. We think the plaintiff made out a prima facie case at least, and if the defendant had a valid explanation to offer, or evidence to rebut the presumption of authority, he should have produced it.

The judgment should be affirmed, with costs.

Bisohoff,. J., concurs._


author: Bookstaver, P. J.

text:
    J. Lewis Weinberg, App’lt, v. Louis Kram, Resp’t.

      (New York Common Pleas, General Term,

      Filed February 1, 1892.)

    Evidence—Rebuttal op admissions.
    During the trial of an action, but before any testimony was taken, the defendant admitted that a certain letter was sent by him to the plaintiff. Later defendant was permitted to state that he did not write the letter and never saw it, and to detail the circumstances under which it was written, in order to explain and rebut the presumption arising from the fact that he had sent it. Held, that it was not error to"receive the testimony, although it involved a statement by the witness of what was said to a third person at the time, who was a friend of the plaintiff and was acting for the defendant.
    Appeal from a judgment rendered in defendant's favor in the district court of the city of Mew York for the seventh judicial district.

      J. Lewis Weinberg, for app’lt; Jacob Levy, for’resp’t.
   Bookstaver, P. J.

This action was brought to recover the sum of twenty-five dollars alleged to be due plaintiff for services alleged to have been rendered the defendant as an attorney and counsellor at law. The defendant denies ever employing plaintiff or requesting, any advice from him, or that he ever rendered any service whatever or gave or was requested to give any advice in consideration of which the defendant agreed to pay the plaintiff the sum. of of twenty-five dollars or any other sum of money.

The evidence upon the trial was conflicting. As we have often decided in this court, upon such conflict we will not reverse the judgment of the court below unless it is made to appear that that court overlooked some material fact or its decision was against the-clear weight of evidence or was influenced by prejudice, passion or bias. Indeed, the appellant does not ask us to reverse on any of these grounds, and we think from an examination of the record the evidence fully justified the justice in arriving at the conclusion he did.

But it is insisted by the appellant that there was fatal error-committed by the justice in the admission of evidence. Before any testimony was taken, the defendant admitted that a certain letter was sent by him to plaintiff, which is as follows:

“Hew York, July 20, 1891.
“ Dear Sir—In the matter of the Insurance Company, you will please'not trouble yourself about giving me any opinion, as things have changed.”

During the progress of the trial, defendant’s counsel asked him whether he ever wrote this letter, to which the plaintiff objected on the ground that it had been admitted that the letter had been sent to the plaintiff by the defendant, which was overruled, and the-defendant was permitted to state that he did not write the letter and never saw it, and to detail the circumstances under which it was written.

This we think no error, because the plaintiff had the full benefit of the admission by the defendant that he sent the letter, and the defendant was entitled to state the circumstances under which it was written by another, in order to explain and as far as possible rebut the presumption arising from the fact that he had sent it. This he could have done even had the witness he desired been present and testified to the writing of the letter. It is true this involved a statement by the witness of what was said to a third person at the time, who was a friend of the plaintiff and was acting for the defendant Under such circumstances it was not error to receive the testimony, and the judgment should be affirmed, with costs.

Bischoff, J., concurs.


text:
    Max Grabosski, Resp’t, v. Lewis Gewerz, App’lt.

      (New York Common Pleas, General Term,

      Filed February 1, 1892.)

    1. Bills and notes—Title of plaintiff.
    Mere possession of a note payable to the order of a person other than the holder, and unendorsed, does not entitle the holder to recover thereon, but, on appeal, the pleadings in the court below having been oral, and it being impossible to determine from the record the precise extent of the allegations of the complaint, Held, that the institution and prosecution of the suit implied an allegation of title in the plaintiff, and it nowhere appearing that such an allegation was controverted, it must be assumed to have been admitted.

      3. Same—Burder of proof.
    In an action on a promissory note, the defense was want of consideration, and the execution not denied. Held, that the affirmative was with the defense to show a want of consideration.
    Appeal from a judgment for plaintiff rendered in the district court of the city of New York for the third judicial district.

      A. & L. Levy, for app'It; John Fennel, for resp't.
   Bischoff, J.

The note in suit was payable “ to the order ” of Baker Union No. 31 of New York, therefore negotiable, Lawson’s Rights, Remedies & Practice, vol. 4, § 1455, p. 2586; Parsons on. Notes & Bills, vol. 1, p. 13, etc., and it imported a consideration. Goshen & Minisink Turnpike Road v. Hurtin, 9 Johns., 217; Kinsman v. Birdsall, 2 E. D. Smith, 395. The defenses were limited to want of consideration and procurement of the note by duress, neither of which disputed the making and delivery of the note; and before the burden of establishing the fact of consideration by a preponderance of the evidence could be imposed upon the plaintiff, Bruyn v. Russell, 38 St. Rep., 50, it was requisite that the defendant should in the first place impeach the presumption of consideration by evidence from which the want of consideration was made to appear, or could be inferred. The trial justice, therefore, properly ruled that the affirmative side of the case was with the defense.

It is urged by counsel for appellant, as ground for reversal, that the evidence fails to show plaintiff’s ownership of the note in suit, and that the presumption of title and ownership usually arising from the fact of possession does not apply, since the note was payable by its terms to a person or persons other than the plaintiff, and was not endorsed. Had the defense, instead of being affirmative, been a denial, the absence of endorsement would have required plaintiff to show a devolution of the payee’s right to recover upon him by assignment, oral or in writing, for it has been expressly held by the court of appeals that mere possession of a note payable to the order of a person other than the holder, and unendorsed, does not entitle the holder to payment, Doubleday v. Kress, 50 N. Y., 410, and hence not to the maintenance of an action to recover thereon.

The pleadings in the court below having been oral, we cannot, from the record, determine the precise extent of the allegations of the complaint, but the institution of suit and its prosecution imply an allegation of title to the note in the plaintiff, and as it nowhere appears that such an allegation was controverted, we must assume that it was admitted. • The proceedings upon the trial, as they are presented to us by the justice’s return, are entirely consistent with such an admission. The absence of the endorsement of the payee, however, had the effect of subjecting the note in the hands of the plaintiff to all the defenses which might have prevailed between the original parties thereto. Goshen National Bank v. Bingham, 118 N. Y., 349; 28 St. Rep., 702, and so it was proper for the trial justice to consider them and to receive evidence thereof.

No other evidence was offered in support of the defenses than the testimony of the defendant, which, though it had remained wholly uncontradicted, was subject to discredit as that of a party in interest. From this it appeared that defendant was engaged in business as a baker, that he employed four or five journeymen ; that on the day of the making and delivery of the note he was without help; that he voluntarily applied to the Bakers’ Union, No. 31, to be supplied with journeymen; that lie was informed by the officers, or members of the union, that unless the note in suit was given his request would not be complied with, .and that to obtain the required assistance in his business he .gave the note. Do these facts constitute duress? ,

As well could it be urged that any person engaged in the business of supplying servants is guilty of the same offense if he refuses to make the supply except upon an agreement for compensation for his services. If it was intended to prove that the members of the union had unlawfully conspired to prevent the further conduct of defendant’s business and to induce journeymen to abstain from entering his employ, and that the note was .given and accepted with the understanding, on both sides, that further resistance to the prosecution of defendant’s business should thereupon be withdrawn, the facts shown do not warrant such an inference and the defendant signally failed in this respect. It was not an apparent duty of the union to supply defendant with journeymen bakers, and their refusal to do so, except upon an agreement for compensation, presents no element of duress.

Upon cross-examination, however, defendant was forced to admit that at the time of giving the note in suit he was aware of the fact that, as a consideration therefor, he became entitled to procure from the union certain labels issued by it for use in the business of bakers at prescribed rates. Counsel for the defense did not apparently deem a disclosure of the purport of these labels necessary, and the trial court was left wholly to conjecture in this respect For the plaintiff it appeared, from his own testimony and "that of a witness, Davis, that defendant voluntarily applied to the union to purchase its labels, and that the note in suit was exacted and given as the consideration of an agreement on the part of the union thereafter to supply the defendant with- the labels upon payment by him of. the rates prescribed therefor, and that he was supplied with such labels upon the further payment often dollars, .and furnished with journeymen. Was not the agreement for the supply of labels evidence of some consideration for the note ? It will hardly be seriously contended that it was not. With the adequacy or inadequacy of the consideration the court cannot, in the absence of illegality, fraud or mistake, have any concern. Of that the contracting party is the better judge, and if he chooses to enter into a .contract upon a consideration' which, at the time, lie deems sufficiently adequate, the courts cannot relieve him or make a new contract for him if he subsequently repents of his bargain.

We think not only that the preponderance of the evidence sustained the claim of consideration, but that on the defendant’s testimony alone, though it had remained wholly unchallenged, a judgment for plaintiff 'would have had to be sustained.

Judgment affirmed, with costs.

Bookstayer, J., concurs.


text:
    The Marvin Safe Company, App’lt, v. Max J. Foss, Resp’t.

      (New York Common Pleas, General Term,

      Filed February 1, 1892.)

    Conversion—Weight oe evidence.
    In an action brought to recover damages for the conversion of a safe, testimony was given that on the occasion of an interview defendant had admitted that he was in possession, or control of possession, of the safe, but defendant denied that such admissions were made, as well as the fact of his ever having possession, or control of possession, of the safe. Held, that there was not such a preponderance of evidence as would justify the reversal of a judgment for defendant.
    Appeal from a judgment for the defendant rendered in the district court in the city of Mew York for the first judicial district, before the justice without a jury.

      A. Edward Woodruff, for app’lt; Arthur Furber, for resp’t.
   Bischoff, J.

This action was brought to recover damages for the alleged conversion of a safe, and the complaint contained appropriate allegations essential to such a cause of action, right of possession in plaintiff, possession by defendant and refusal by him to deliver after demand. The answer controverted these allegations and set forth as a separate and distinct defense that prior to the commencement of this action plaintiff had sold and delivered the safe to Emanuel & Taylor, upon their agreement to pay for it in instalments, and that until the full and complete payment of the purchase price the safe should be and remain the property of the plaintiff, 'which was also to be entitled to possession at any time on demand, but that since such sale plaintiff had sued and recovered a judgment for the full amount of the purchase money against Emanuel & Taylor, whereby the title to, and right of possession of the safe had become vested absolutely in them.

Thus the trial of the action involved the determination of questions of fact as well as of law and these were alike submitted to the justice below.

Conceding, therefore, that defendant’s position respecting the legal effect of the judgment against Emanuel & Taylor is untenable, it still remained for plaintiff to sustain the allegations of the complaint by sufficient proof. In this behalf the only evidence offered was the testimony of plaintiff’s witnesses, Woodruff and Pendleton, to the effect that on the occasion of an interview with him the defendant had admitted that he was in possession, or control of possession, of the safe in question. 'But defendant met the assertion of these alleged admissions by emphatic denial that they were made, and supplemented that denial with the further one that he ever at any time had the possession, or control of possession, of the safe.

This constituted all the evidence relating to defendant’s possession of the safe, and thereon the trial justice found for the defendant. For us to say that this finding was error would seem to be an unwarranted interference with the province of the trial justice, as we may reverse upon the facts only when the evidence presents such a preponderance in favor of the appellant that a contrary finding would be legal error. Phillips v. Munsey, 22 St. Rep., 226; Macniffe v. Ludington, 13 Abb. N. C., 407. Unquestionably the testimony concerning the alleged admissions was evidence of the facts alleged to have been admitted sufficient to require defendant to refute it, but such evidence is of such an inferior degree and unreliable quality that weighing it against the defendant’s denials of having made the admissions and the existence of the facts alleged to have been admitted, a preponderance of evidence cannot be fairly predicated thereon. Greenwood v. Schumacker, 82 N. Y., 614; Greenleaf on Evidence, vol. 1, § 200.

The judgment appealed from should be affirmed, with costs.

Daly, Oh. J., concurs.


author: Merwin, J.

text:
    William C. Cudd, Resp’t, v. Rhys Gwesyn Jones, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 13, 1892.)

    1. Appeal—Objections to evidence.
    An objection to the admission of evidence on the ground, that it was in the nature of an offer to compromise should be raised at the trial. It cannot be raised for the first time on appeal.
    3. Limitation—Acknowledgment.
    A letter in which the writer, while stating .that he does not confess that he is under any obligation to pay the money further than that his name is on the note, admits that the money would not have been loaned except upon his credit, and asks what the holder of the note will take for it, is a • sufficient acknowledgment to take the note out of the statute of limitations.
    Appeal from a judgment entered in Oneida county, January 15, 1891, upon a verdict of $795.19, rendered in favor of the plaintiff at the Oneida circuit, January, 1891; also, from an order denying a motion on the minutes for a new trial.
    The action is upon a note, a copy of which is as follows :
    41 $500. Utica, FT. Y., January 1, 1874.
    “ One day after date, we promise to pay to the order of Ann Owens, five hundred dollars, with use, at Welsh Land & Emigration of America office, 105 Genesee street, Utica, FT. Y.
    “Rhys Gwesyn Jones, President.
    “David T. Davies, Treasurer.
    “Value received.”
    In defense, the defendant set up the statute of limitations, and that the note was given and received as the corporate note of a corporation called “The Welsh Land & Emigration Society of America,” of which the defendant was the president, and David T. Davies the treasurer.

      To avoid the effect of the statute, the plaintiff relied on a letter written by defendant to the assignor of plaintiff before she-transferred the note. The letter is as follows:
    Utica, H. Y., December 8, 1887.

      “Mrs. Ann Thomas:

    “Dear Friend—I am very sorry that I am not able to comply with your wish to pay the note due to you from David T. Davies. I never saw the money and never had any benefit from them. Besides your money, there are other notes oí about ten thousand dollars due, without any money to meet them. It was necessary for me to borrow near one thousand dollars to get things to a level after coming back from California, I have been paying them in five or six pounds a month. I shall finish them by next April, if I will have health. Though I do not confess that I am under any obligation for the money you loaned David T. Davies, further than that my name is on the note, which is also true of many other notes that persons have in America. They know that I have nothing to pay^with, and for that they do not, ask." I believe that the Rev. Mr. Owen would not have loaned the money only that it was for me to sign the note, and I would not have done so only I believed Mr. Davies was rich and honest.. Both of us have been unlucky in meeting him. Ho doubt that, it is difficult for you to lose the money, and it is difficult forme to pay them. I would be very glad to meet with you and do all I can for the sake of peace. Many have received part of the debt, from me. How much will you. take for the notes ? I send you five pounds a month from the beginning of next May. Will you take forty pounds ? The whole I will pay will be a loss to me. You must lose some. So we will be friends again.
    “R. G-. Jomes.”
    At the close of the plaintiff’s evidence, the defendant moved for a nonsuit upon the ground that there is nothing in the letters, submitted in the nature of a promise to pay the note in suit This motion was denied and defendant excepted. At the close of the evidence the defendant asked the court to direct a verdict for the defendant on the ground that there was no evidence in the case-to take the note out of the statute of limitations. The court de- ■ nied the motion and the defendant excepted.

      A. M. JBeardsly and John D. Griffith, for app’lt; Jones & Townsend, for resp’t
   Merwin, J.

The questions litigated upon the trial of this case were whether the defendant was personally liable on the note and whether the defendant had made any acknowledgment or promise sufficient to avoid the bar of the statute of limitations. Ho point is now made upon the first question. The sufficiency of the evidence on the second question is attacked, as well as some rulings; on the admission of evidence.

In the course of the trial, the plaintiff produced and offered in evidence five letters, written by the defendant to plaintiff’s assignor, dated respectively June 24, 1878,'July 16, 1879, September 29, 1880, October .1, 1883 and December 8, 1887. These were objected to as immaterial and incompetent. The objection was overruled and the letters received in evidence. The defendant now claims it was error to receive the .first four letters, as those were written more than six years before the commencement of the suit, and therefore inadequate to relieve the bar of the statute. Assume they had no bearing on that question, they were material on the other question as to whether the note was given and received without design to make the defendant personally liable. It was therefore not improper to receive them.

The defendant also claims that it was error to receive in evidence the letter of December 8, 1887, on the ground that it was an offer to compromise. This ground of objection was not taken at the trial. It was in the nature of a privilege and should have been raised there. See Stevens v. Brennan, 79 N. Y., 255; Hoyt v. Hoyt, 112 id., 495, 514; 21 St. Rep., 593. The objection as made was that the letter was immaterial and incompetent. Upon this-being overruled, no exception seems to have been taken. The defendant is therefore not in a position to claim error in the reception of the evidence. The effect of the letter, assuming it to be properly in evidence, is however another question and may be properly considered in determining whether the court erred in refusing to direct a verdict for the defendant

The theory of the defendant is that the letter does not “ acknowledge an indebtedness by the defendant on a note from which a willingness or intention to pay can be .inferred.” The case of Creuse v. Defiganiere, 10 Bos., 122, is cited. In that case it was held that a letter written by a debtor, in effect acknowledging the existence of an indebtedness and proposing a compromise, but distinctly indicating an unwillingness to pay and a. determination to pay nothing if the offered compromise be rejected, is not such a recognition of the debt as will take it out of the statute. The cases of Manchester v. Braedner, 107 N. Y., 346; 12 St. Rep., 263, and McNamee v. Tenny, 41 Barb., 495, are also cited. In the Manchester case the general doctrine is said to be that the writing, in order to constitute an acknowledgment, must recognize an existing debt, and that it should contain nothing inconsistent with an intention on the part of the debtor to pay it. In the McNamee case it was held that the acknowledgment need not express an intention to pay the debt. In that case the defendant, evidently referring to a design to take the benefit of the two-third act, wrote the plaintiff as follows: “ I have been working at my matters since you was here, and find that I can get two-thirds of my indebtedness off, but dreading to take the act for the name of it, I have come to the conclusion that I would borrow of my friends, providing that I can make a satisfactory arrangement. I propose to pay all my creditors twenty per cent cash on the original notes or bills; that is the best I can do, and that is more than I can do without help.” He soon after wrote again that he made the same offer to all alike, and that, if he could not make it a general thing, he should try the other way ; that he could raise enough to pay the twenty per cent and make a final settlement, and stated the amount which at that rate would be coming to plaintiff. These letters were objected to, on the ground, among others, that they were offers of compromise, but the objection was overruled and exception taken. A verdict was ordered for the plaintiff, thereby in effect holding that the letters constituted a sufficient acknowledgment, and this was sustained at general term. This case is somewhat adverse to the contention of the appellant

There are some early cases indicating that the acknowledgment should express a willingness to pay. A different conclusion is reached by Davies, J., in Henry v. Root, 33 N. Y., 534, upon a review of the cases upon that subject. In Kincaid v. Archibald, 73 N. Y., 193, it is said that if the writing.contains either a promise or acknowledgment it is sufficient.

The latest enunciation that we have been referred to of the rule on this subject is in the Manchester case above referred to. Upon that basis the question here is, whether, in the letter of December 8, 1887, there is anything inconsistent with an intention on the part of defendant to pay the debt. The defendant in that letter in substance admits his liability on the note, and that it is unpaid. There was, .therefore, an existing obligation. He says he had none of the money himself, and, in that sense, as it may be argued, was not under any obligation for the money. Still he says in substance that the money was loaned upon his credit. He says it is difficult for him to pay; he does not say he will not pay, and does not intimate that he has any defense. On the contrary, he says at the start that he is sorry that he' is not able to comply with the wish of the holder of the note for payment He, in conclusion, asks how much she will take for the notes, and makes an offer. Did this offer stand alone there would be force in the suggestion that it would not be a sufficient acknowledgment. The letter is, however, to be taken as a whole. There was no controversy between the parties, or any dispute as to the amount of the debt. The previous correspondence showed' this. In the letter of September 29, 1880, he had said he would pay her every cent.

It has been held that a statement of inability to pay anything does not destroy the effect of an acknowledgment otherwise sufficient. De Forest v. Hunt, 8 Conn., 179; Chidsey v. Powell, 91 Mo., 622. It might be otherwise if there was a refusal to pay.

In the present case we think the letter of December 8, 1887, furnished sufficient evidence of an acknowledgment by defendant of an existing debt against him upon the note, and that it should not be said as matter of law that the letter contained anything inconsistent with an intention on the part of the defendant to pay it, or that in effect nullified the acknowledgment there made. The relations of the parties and the surrounding circumstances were to some extent shown, and if the intention of defendant was material there was evidence sufficient to make it a question of fact to be passed upon as such. It follows that the motions of the defendant for a nonsuit and for a verdict in his favor were properly denied. Ño point is made as to the manner of the submission of the case to the jury.

The judgment should be affirmed.

Martin, J., concurs.

Hardin, P. J. Section 395^ of the Code of Civil Procedure provides that “ an acknowledgment ” contained in a writing is the only competent evidence to take a case out of the statute of limitations. “ An acknowledgment ”• of the debt by the defendant is made manifest by his letter. “ It was a distinct recognition of the existence of the debt.” Anderson v. Sibley, 28 Hun, 18. It was said in Allen v. Trisdorfer, 14 St. Rep., 694, that upon such “ an acknowledgment the plaintiff was entitled to recover.”

I concur in the opinion of Merwin, J., and favor an affirmanee.

Judgment and order affirmed, with costs.


text:
    James R. Schermerhorn et al., Surviving Administrators, Resp'ts, v. Edward H. Brewer, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 13, 1892.)

    1. Partnership—Accounting—Set off.
    In an action for an accounting, brought by administrators against the surviving partner of the intestate, defendant claimed a right to offset accounts for goods purchased of him by the heirs of the intestate after the firm’s dissolution, under an agreement with one of the administrators that any goods so sold should apply on the estate’s interest in the partnership assets. Held, that the claim was properly rejected, , as the administrator was without authority either to bind the estate to receive such accounts as part of its interest in the partnership assets, or to compel the heirs to apply their accounts with defendant to their shares in the estate.
    3. Same —List of accounts uncollected.
    Such accounts of defendant with intestate’s heirs should not be included in the referee’s list of the firm’s uncollected accounts, as 'they wefe not allowed as off-sets, and belonged to the defendant, individually.
    8. Same—Requests to find—Appeal.
    Where, at the request of defendant, a referee found a certain sum had been expended for wages by defendant, and allowed the same, on an ac counting, on appeal defendant cannot claim that the referee erred in not finding a greater sum, which by undisputed evidence was shown to have been paid by defendant for wages.
    Appeal from a judgment entered in Cortland county on 19th January, 1891, upon the report of a referee.

      B. A. Benedict, for app’lt; Franklin Pierce, for resp’ts.
   Merwin, J.

On the 17th March, 1877, the defendant and James A. Schermerhorn, .plaintiffs’ intestate, entered into a co-partnership, under the firm name of Brewer & Schermerhorn, in the business of making and selling harnesses, trunks, etc., at Cortland, N. Y. Each contributed in money or goods the sum of $2,484.27. This partnership continued until the death of James A. Schermerhorn on the 30th December, 1879." On the 15th ¡November, 1880, the plaintiffs and one Charles H. Parker were duly appointed administrators of the estate of the deceased. Parker died in October, 1887. After the death of James A. Schermerhorn, the defendant continued in possession of the partnership property, and undertook the closing up of the business. This action was brought in August, 1888, for an accounting and settlement in regard to the partnership dealings and property. The referee, to whom the case was referred to hear, try and determine, found that there was due the plaintiffs from the defendant, on account of the partnership matters, the sum of $912.22, and that there was unsold merchandise on hand to the amount as originally inventoried of $346.50," but of little value in fact, and also 'uncollected accounts to the amount of $758.27. Judgment was ordered in favor of the plaintiffs against the defendant for $912.22, and for the costs, and for the*disposition of the unsold goods and uncollected accounts through a receiver, if the parties could not agree as to their sale or division.

1. The defendant claims that the referee erred in rejecting the claims of the defendant on accounts for goods furnished by him to the Schermerhorn heirs after the dissolution of the firm. In his answer, the defendant alleged that for several years after the death of James A. Schermerhorn the plaintiffs and other heirs of Schermerhorn “ purchased of this defendant from time to time goods and merchandise, with the understanding that such purchases were to be applied upon any balance that might be due to the estate of said James A. Schermerhorn from the assets and property of the said firm after the payment of the firm debts; and such purchases with interest amount to about $350 ; and which amount he will ask to have allowed him on this accounting.”

The finding of the referee on this subject was as follows: “That said James A. Schermerhorn left him surviving the following named children and heirs-at-law, to wit: James E. Schermerhorn, Abram M. Schermerhorn, Susan M. Schermerhorn and Linda Schermerhorn. That Susan M. is now the wife of James M. Milne and Linda is the wife of B. B. Miller. That after the death of James A. Schermerhorn it was agreed between the defendant and Charles Parker, One of the administrators of said James A. Schermerhorn, that any goods and merchandise which should be sold and delivered to the above mentioned heirs-at-law, by the defendant, should apply upon the interest of the estate of James A. Schermerhorn in the partnership assets of the late firm. That in pursuance of such agreement the. defendant sold and delivered to James E. Schermerhorn goods to the amount of $17.32 including interest; to James M, Milne, the husband of Susan M. Milne, goods to the amount of $17.14 including interest; to Mrs. Burnett B. Miller goods to the amount of $89.24 including interest; to Abram M. Schermerhorn goods to the amount of $201.57 including interest; to James A. Schermerhorn goods to the amount of $11.01 including interest. That said goods were so sold and delivered by the defendant as such surviving partner and legal owner thereof, at different times between December 30,1879,'and the commencement of this action, and the total amount of such sales is $336.28, but I find as a fact in this case that said Parker as administrator or otherwise had no right, power or authority to make the contract aforesaid with the defendant. That such agreement was not founded upon any contract or obligation of the intestate, James A. Schermerhorn, and created no liability against the estate he represented, and as matter of law we hold the said agreement or arrangement to be null and void as against the plaintiffs ; and that said account, amounting to $336.28, should not be offset or allowed against the plaintiffs in this action.”

The defendant at the trial claimed that the plaintiff Abram M. Schermerhorn was a party to the agreement between the defendant and Parker, but this the plaintiff Abram denied and we must take the fact as found by the referee. The evidence of the defendant leaves it in doubt whether .this agreement was not made by Parker before his appointment as administrator. Assume, however, that he was administrator when the agreement was made, was the estate bound so that the agreement became obligatory upon the plaintiffs as administrators ? Parker as administrator had no right to say that the heirs must apply their accounts with the defendant upon any interest or share they might have in the estate, nor had he any right to bind the estate to take its pay in that way for anything that might be due from the defendant. Schmittler v. Simon, 101 N. Y., 557.

The defendant claims that the plaintiffs are estopped from denying the validity of the agreement. It may be that Parker would be, but it is not found that the plaintiffs knew anything about it, or that the heirs assented to it. I don’t think the plaintiffs are estopped. . The defendant invokes the doctrine of equitable set-off. It is not claimed that .the accounts are a legal set off Wakeman v. Everett, 41 Hun, 278; 2 St. Rep., 643. They are separate debts against the plaintiffs and others, individually, while plaintiffs’ claim is a joint one in their capacity as administrators. In Dale v. Cooke, 4 Johns. Ch., 11, Chancellor Kent says that to authorize a set-off the debt must be mutual and due to and from the same persons in the same capacity, and that joint and separate debts cannot be set off against each other in equity any more than at law. See 2 Leading Cases in Equity by White & Tudor, 4th Am. ed. 1342. But the defendant suggests that the statute of limitations may be a good.defense to these accounts as against the individual parties, and that therefore if not allowed here he may lose them. This ground for equitable relief is not set up in the answer, Irving v. De Kay, 10 Paige, 319, and is not presented in any of the defendant’s requests for findings. When this action was commenced, according to the face of the accounts, a large portion thereof would not be affected by the statute. Payments within six years seem to have been made on the two larger accounts. The plaintiffs do not appear to have doné anything to prevent the defendant from collecting the accounts. We are cited to no authority that would justify us in allowing the defendant’s claim upon this ground. These accounts belonged to the defendant individually, and for aught that appears had no connection with the partnership funds or property. They cannot be deemed payments by the defendant out of partnership funds, within the rule suggested in Collender v. Phelan, 79 N. Y., 368, nor for the benefit of the estate, as the next of loin could not without their consent be compelled to take payment in that way, and as in this action there was no opportunity to ascertain what if anything would be finally coming to the next of kin. One of the accounts is against “James A. Scherrnerhorn” for $7.15 besides interest. This probably means the intestate, but all the items of the account, as shown by the exhibit in evidence, were furnished long after .his decease, and no explanation is given that would indicate that it was a proper charge against the estate, or proper to be allowed as an offset to plaintiff’s claim. It follows that the defendant fails to establish any error of the referee in disallowing the accounts referred to.

2. The firm rented the store in which it did business of one Henry Brewer at the annual rent of $450. The defendant requested the referee to find that on the 1st day of January, 1880, the firm was indebted to Henry Brewer in the sum of $424.78, and that this was, subsequently and before the commencement of this action, paid by the defendant. This the referee declined to do upon the ground, as appears from the entry of the referee, that the ledger of the firm at certain pages showed that the rent of 1879 was paid prior to January 1,1880. This was a mistake. The ledger at the pages referred to does not show such payment. This seems to be conceded by the plaintiffs’ counsel, but he claims that the evidence does not show that the defendant ever paid it, so as to be. entitled to credit for it on the accounting. The case shows that upon the trial an exhibit, No. 13, was produced by the defendant and read in evidence. This has on it an item, “ Henry Brewer, 425.78.” In. regard to this exhibit the defendant testified as follows : “ That is an exhibit of payments made by me after Mr. Schermerhorn’s death, of personal accounts, and all indebtedness against the firm which I have paid. Those are itemized largely, and I believe they are correct.” In the cross-examination of the defendant, or during the progress of the trial, this payment does not seem to have been disputed. The relations between the defendant and Henry Brewer rendered the payment probable. We think that this item should have been allowed and found as requested, and that defendant was entitled to credit for it.

3. The defendant requested the referee to find “that from and after December 30, 1879, the defendant employed a clerk to assist in the sale of the goods of the late firm, and also workmen to make harnesses and other like articles from the stock on hand; that the expenses therefor amounted to $568, which was paid by defendant.” This th.e referee found, and afterward allowed the defendant that sum as a part of the reasonable expenses of closing the business. The defendant now claims that the undisputed evidence was that the amount paid by defendant for wages for the purposes stated in the request was $656.48, and that the referee erred in not making it the latter sum. There was evidence that the sums paid out for wages from January 1, 1880, to September 1, 1881, was $656.48. But the referee had the right to take the figure that the defendant presented in his request, and cannot be charged with error in finding as requested. Besides it was for the referee to say what was the reasonable amount, and we assume that the amount as named and found was what was deemed to be reasonable.

4. The defendant further claims that the referee erred in finding that the amount of accounts against third parties, January 1, 1880, excluding the accounts of the Schermerhorn heirs, was the sum of $1,147.12. The defendant claims, although 'it is not so found, that to obtain these figures the referee took the amount of the uncollected accounts, which were conceded to be $421,99, and added thereto the amount of collections since January 1, 1880, as indicated by an exhibit put in evidence by defendant called “ collections, Brewer & Schermerhorn account since January 1, 1880.'’ These, as indicated by the exhibit, were $725.13, making, with the uncollected accounts, $1,147.12. The claim of defendant is that the amount of $725.13, as indicated by the exhibit, is made up largely from collections of accounts arising from sales of goods after the dissolution and that such accounts should not be considered in determining the amount to be charged to the defendant, as he is charged with the goods as they were at the dissolution. Of course it follows that if defendant is charged with the goods as they were at the dissolution he should not be charged with accounts from sales made since. The books of the firm, as continued by the defendant, are exhibited in the case and are handed up for examination. A comparison of the items in the exhibit of collections above referred to, with the entries in the firm books, shows that about $118 of the $725 arise from sales since the dissolution. The plaintiff, however, claims that the amount, in fact, of the accounts at the time of the dissolution exceeded the sum of $1,147.12, and that deducting the conceded amount of uncollected accounts the amount chargeable to the defendant as collected accounts exceeds the amount charged the defendant by the referee. The plaintiffs’ counsel produces as part of his argument a schedule, purporting to be made up from the firm books, which indicates that the outstanding accounts at the time of the dissolution were $1,220. An examination of the books in reference to this schedule shows that the accounts on J.anuary 1, 1880, in fact exceeded the amount fixed by the referee. The defendant has, therefore, no occasion to complain.

5. Provision was made in the judgment for a disposition of the uncollected accounts. In the list of these the referee included the accounts of the Schermerhorn heirs, so called, at $336.28. The defendant claims that these accounts belong to him individually and should not be included with those of the firm. In this the defendant is correct. These accounts do not belong to the firm. They were claimed as offsets, but as that claim is not allowed they should be stricken from the list of uncollected accounts, leaving the amount $421.99.

6. The referee, in stating the account between the partners, found that the defendant.drew out of the business of the partnership the sum of $1,715.42 and the plaintiffs' intestate the sum of $1,117.72. The latter sum is not found fault with, but the defendant claims that the former is too large. Still these figures are taken from the evidence of the defendant himself, and his evidence authorizes the inference that that amount was stated by him as what he had drawn out in cash and merchandise prior to January, 1880. He also testified that he had drawn out “ something like $400 more than Mr. Schermerhorn.” He afterwards testified that Mr. Schermerhorn drew out $1,454.59,' including the bills of the Schermerhorn heirs so called. Deducting those which the referee disallowed, it left the sum of $1,118.31, which is substantially what the referee found. The attention of the referee was not specifically called to the amounts drawn out by the-parties by any request to find on that particular subject. Nor does the counsel for defendant demonstrate that the figures taken by the referee are erroneous or that the defendant was' mistaken in his evidence. No error is therefore apparent upon this subject. The evidence was sufficient to sustain the referee’s finding.

7. The referee charged the defendant with collections on accounts to the amount of $725.13. As the accounts at the time of the dissolution exceeded $1,147.12, and as it was conceded that there remained of uncollected accounts only the sum of $421.99, the referee had the right to infer that the balance had been collected by the defendant. The defendant fails to make it appear that he has been injured in this regard.

8. A point is made by the defendant as to the allowance to. him of interest on some advances he made, but this upon the argument was not urged. ° The referee did not allow the plaintiffs any interest on the balance found due them. The question of costs was in the discretion of the referee and no sufficient reason is apparent for us to interfere upon that subject.

No other claims of error are presented.

It follows that the judgment should be modified by crediting the defendant in the account the item of $425.78 above referred to, or, which would produce the same result, deduct one-half thereof from the amount found due to the plaintiffs from the defendant, thus reducing the recovery frorn^ $912.22 to $699.33. The judgment should also be modified by striking out from the list of uncollected accounts the Schermerhorn heirs’ accounts, thus reducing the uncollected accounts from $758.27 to $421.99. As so modified the judgment should be affirmed.

A majority of the court are of the opinion that the appellant should have the costs of the appeal.

Judgment modified by reducing the recovery as stated in the judgment from the sum of $912.22 to the sum of $699.33, and by striking from the list of uncollected accounts the Schermerhorn heirs’ accounts amounting to $336.28, and as modified judgment affirmed, with costs of this appeal to the appellant.

Hardin, P. J., and Martin, J., concur.