text:
    Seaboard National Bank, Resp’t, v. Henry G. Burleigh et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)

    Bills and notes—Contract to accept.
    Where a party advances money upon the faith of a promise to accept a draft at one month, such draft is payable one month from the day of advancement, though it was not drawn till after that day.
    Appeal from a judgment in favor of the plaintiff, and from an order denying a motion for a new trial.

      O. F. & R. R. Davis (John J. Adams, of counsel), for app’lts; Taylor & Parker (Alfred Taylor, of counsel), for resp’t.
   Van Brunt, P. J.

It is apparent from a reading of the complaint in this action that the attorneys who drew the same did not know exactly upon what theory a recovery was to be had— whether upon a draft to he deemed accepted by the defendants under the statute, or for money paid out at their request. It is now claimed by the plaintiff that the action is for money had and received. It appeared upon the trial that the plaintiff was a national bank on the 1st December, 1892, and that the firm of Morse h Crombie kept an account with it, and that a note of $1,875 previously given for value to the defendants by Morse & Crombie, and indorsed by them, and then hel'd by the Garfield National Bank, fell due that day, which note was payable at the plaintiff’s bank. The Garfield National Bank had presented the note for payment, and Morse & Crombie had not sufficient funds at the bank to pay it. Crombie, one of the firm, then called at the plaintiff’s bank and presented the following letter from the defendants to the vice-president:

“Messrs. Morse & Crombie, New York — Gentlemen: The last day of your note of $1,875 is December 1st. We have been thinking to-day that you will not have time to get the other note back here in time. It was discounted at the Garfield Bank, and of course will be presented at the Seaboard Bank tomorrow, the 1st. Please pay this note, and draw on us for $1,875 for one month, and we will accept the draft, and pay it when due. You can show this to the cashier of the Seaboard Bank, and this will be your authority for drawing the draft.
“Yours, truly,
[Signed] “ H. G. Burleigh & Bro.

Morse said to the vice-president: “You see this letter from Burleigh of Burleigh & Brother authorizing us to draw on them for payment of this draft. Burleigh & Bro. are perfectly good. Will you initial this note to be paid to-day, and allow us to draw ? ” The cashier then looked at the rating of the defendants, and found them very highly rated, and, after consultation with the president, the vice-president said to Crombie: “ Very well; you draw your draft and I will initial this note to be paid.” The note was thereupon paid, and Crombie drew the draft, and brought it back to the vice-president, who, noticing that it was drawn at 30 days, said: “We don’t take any draft as long as that; we won’t accept that.” He then tried to recall the messenger of the Garfield Bank, but he had gone. The note had been certified. Crombie then said to the vice-president: “ Very well; we will make it three days, and I think Mr. Burleigh won’t object.” The vice-president replied: “ I am perfectly willing to do that.” Crombie drew the draft at three days’ sight, which plaintiff accepted, and sent forward for collection and payment. Upon this draft reaching the defendants, they refused to accept it, and on the 12th of December wrote a letter attempting to withdraw their offer to accept the draft at one month, as per their letter of November 30th. Subsequently, a draft was drawn at 30 days, which was sent to the defendants, and not accepted, and on the 29th of December another draft at one month, antedated to December 1, 1892, was sent to the defendants, and not accepted; and thereupon this action was brought.

It is urged upon the part of the appellants that the complaint ought to have been dismissed upon the ground that, while it alleges an agreement by defendants to accept a one month’s draft, it also alleges that said draft was -due one month from December 1st, and was not presented to the defendants for acceptance until December 29th; that the authorization from the defendant was to draw on them for one month, and that that meant one month’s sight, and not one month from date. In support of this proposition, attention is called to the case of Ulster Co. Bank v. McFarlan, 5 Hill, 432. In that case the defendant had sent to W. H. De Forest, & Co. a letter in the following language:

“ Gentlemen: I hereby authorize you to draw on me at ninety days, from time to time, for such amounts as you may require, provided that the whole amount running and unpaid shall not exceed three thousand dollars; the above letter of credit to be good and binding for one year from this date."

—And it was held that the only authority to draw was at 90 days’ sight, and not 90 days from date, upon the ground that the object of exacting a draft at 90 days was to give the drawee 90 days to prepare for payment of the draft after he learned that it was in existence, which was entirely in harmony with the authorization to draw. It was a letter of credit, drafts on which were to be made from time to time at uncertain intervals, and, unless this construction was placed upon it, as the court said, “the words 190 days ’ in the letter would be of no practical importance.” But the case at bar is entirely different. The defendants authorizing the draft upon them knew that the money was to be paid on the 1st December, when Morse & Crombie’s note fell due, and they promised Morse & Crombie that they would pay the draft in one month—plainly, in one month from the time the money was paid upon Morse & Crombie’s note. It was upon this draft that the money was expected to be raised to pay the note then falling due, and which the defendants were to receive the benefit of. It was undoubtedly understood by them that Morse & Crombie would draw their draft upon the 1st of December, and that it should have one month to run. But it was never intended that that draft should be payable one month from sight, and no such construction can be placed upon the letter written by them on this subject. If Morse & Crombie had drawn the draft for one month from date at the time their note was paid, there can be no question but they would have been acting within the letter of authorization, and that the defendants would have been bound as acceptors of such draft. But it is said that the bank refused their offer in the first instance. The bank advanced the money upon the faith of an agreement of the defendants to accept a draft of Morse & Crombie. It is apparent that the officers of the plaintiff did not understand the length of time of the draft which was to be drawn, and they probably would not have agreed to accept such a draft had they noticed the fact in the letter. But they made the payment upon the faith of a promise of the defendants to receipt a draft; and the fact that they were disappointed when they learned the length of time such draft was to run in no wise released the defendants from their obligation. The plaintiffs parted with their money upon the promise of the defendants; and it certainly cannot be claimed that they must lose it because they were ignorant of the full import of the promise. They are entitled to the full benefit of the contract, even though if, at the time they advanced the money, they had known its full import, they would have refused so to do. The most that defendants can claim is that the stipulations in the contract which were favorable to them, they should have the benefit of. We are of opinion, therefore, that it was the understanding of the defendants that the draft to be drawn pursuant to their authorization was to bear date on the 1st of December, 1892, and to be payable in one month from such date. And it was immaterial when such draft was drawn. The moment that it came into existence, the promise to accept attached to it had become an acceptance; the plaintiffs having advanced the money upon the faith of an acceptance by the defendants of a draft to be drawn, although they may have been ignorant at the time they made the advance, of the length of time such draft had to run. The judgment and order should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Parker, J.

license: Public Domain

text:
    James B. Smith, Resp’t, v. Phebe G. Molleson, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)

    1. Bond—Consideration.
    The letting of a contract to a party on condition that he should give a bond, with sureties, for its faithful performance, furnishes a sufficient consideration to sustain the bond.
    2. Contract—Construction.
    An ambiguous contract is to be construed in the light of the circumstances surrounding its making and of the subsequent conduct of the parties thereunder.
    Appeal from a judgment in favor of plaintiff entered on a verdict directed by the court.

      Whitlock & Simonds (William G. Beecher and Bache McK Whitlock, of counsel), for app’lt; Miller <6 Miller (Jacob F. Miller, of counsel), for resp’t.
   Parker, J.

In October, 1888, the plaintiff entered into a contract with the city of Few York to enlarge the American Museum of Fatural History, in Manhattan square. The contract provided that certain portions of the building exposed to view on the exterior should be faced with granite. Shortly, thereafter, plaintiff made a contract with Pratt & Molleson to furnish, cut, set and clean all the new granite v/ork which plaintiff had contracted to furnish. Pratt & Molleson gave to plaintiff a bond in the penal sum of $6,000, conditioned that they would faithfully perform their contract. This they did not do. Hence this action against their surety, who assigns two grounds of defense: (1) That the bond is without consideration to support it; (2) that the plaintiff and Pratt & Molleson varied the terms of the contract.

Touching the question of the want of consideration, it appears that before the contract was made between the plaintiff and Pratt & Molleson it was ‘ agreed that, if the contract should be awarded to the latter, security for faithful performance on their part should bé furnished by them. Plaintiff so testifies, and the senior member of the firm, who were the principals in the bond, conceded it. In accordance with their promise, the making of which was a condition precedent to the awarding of the contract, they presented to the plaintiff the bond in suit, which recited the making of the contract between Smith and Pratt & Molleson, and briefly described the work which Pratt & Molleson had therein covenanted to perform, and the compensation to be paid therefor; and it was conditioned that Pratt & Molleson should faithfully perform their contract, or that they should pay such sum of money as the other party to the contract should suffer by reason of a failure of performance, not exceeding $6,000. It is apparent that the parties to the contract, as well as the surety on the bond, understood that the giving of the bond was requisite in order to secure to Pratt & Molleson the contract, and that the purpose of it was to secure Smith against loss in case of a failure of performance. The letting of the contract to Pratt & Molleson on condition that they should furnish security for their faithful performance of the contract furnished a good consideration to sustain the bond given. This proposition is sufficiently supported in the reasoning of the court in Erie Co. Sav. Bank v. Coit, 104 N. Y., 532-536; 5 St. Rep., 790.

The second defense is sought to be founded on that principle of the law of suretyship which gives to a substantial variation of a contract by the parties to it, without the consent of the surety, the effect of releasing him. The contract provided that Smith should pay to Pratt & Molleson, for the work which they covenanted to perform, the sum of $30,000, “ as follows: In monthly payments not to exceed eighty per cent, of the estimated value of the work performed on the building; the final payment to be made when this work is all complete, and after the expiration of thirty days, and after all the drawings and specifications have been returned to J. C. Cady & Co., architects.” The variation of which defendant mainly complains is that the plaintiff paid to Pratt & Molleson, from time to time, sums of money which aggregated more than eighty per cent, of the estimated value of the work actually performed on the building, so that, at the time when the plaintiff took the contract away from Pratt & Molleson because of their failure to perform its conditions, there had been paid to them a greater sum than was due for work and material actually in the building. It is undisputed that Pratt & Molleson were not possessed of funds requisite to the carrying out of the contract in accordance with its provisions, and from the inception of the work, almost, the plaintiff from time to time made to them moderate advancements on account of the work which they had actually performed, with the purpose in view of enabling them, if possible, to fulfill their agreement. The advancements thus made never at any time exceeded eighty per cent, of the value of the stone on hand, and the work done thereon. Briefly stated, if the contract only authorized payments not to exceed eighty per cent, of the materials furnished and work done on such stone as was actually set in the building, plaintiff made an overpayment, but if it authorized a payment of eighty per cent, of the work actually performed, whether on stone set in the building, or those not set, but wholly or partially ready for setting, then the payments were not in excess. In construing this provision of the contract, it should be borne in mind that while it was intended to secure to the contractors a portion of the contract price, from time to time, as the work proceeded, it was also intended as a protection to the plaintiff against the payment of so large a sum as to leave the amount remaining unpaid insufficient to' insure performance on the part of the contractors. Thus the monthly payments were limited to a sum not exceeding eighty per cent, of the estimated value of the work performed. Now, the granite which the contractors were to furnish had to be taken, out of the quarries in Nova Scotia, thence conveyed to Niantic, Conn., where it was cut and put in readiness to be set in the building, and then taken to New York and placed in position as the work progressed. Necessarily, therefore, the larger part of the expense of the contractors in performing their work was incurred before the stone were set in the building. The fact that a provision for monthly payments to be based on estimates furnished shows that the parties to the contract appreciated that it was necessary for the contractors that -payments should be made at short intervals to enable them to go on with the work. Having this purpose in view, it was but reasonable, and apparently in furtherance of their general object, to authorize payments based on work actually performed, including stone wholly or partially ready for setting, as well as those set. This is the construction of the contract which the parties themselves, by their conduct, gave to it before any of the stone were set. After the stone had been taken from the quarries in Nova Scotia to Niantic and cut, the contractors applied -for a payment on account, and the plaintiff, accompanied by one of the architects superintending the construction of the building, visited the yard at Niantic where the stone were being dressed, examined them, made an estimate of their value, and on that basis an advancement to the contractors of a sum less than eighty per cent, of their estimated value was made. Defendant contends that the construction thus placed upon it by the parties, and which seems to be the one intended by them, cannot prevail, because the language employed is that monthly payments are “ not to exceed eighty per cent, of the estimated value of the work performed on the building; ” that the meaning of the phrase is that estimates shall be based solely on stone actually set; that work done in preparing them for setting, and in delivering them on the ground, is not work “performed on the building.” This construction, in the light of the circumstances surrounding the making of the contract, and the conduct of the parties thereunder, seems to us too narrow. Webster, in defining “ on,” gives, as one of its meanings, “In reference or relative to.” Adopting this meaning, and the provision so reads as to authorize an eighty per cent, payment based on the estimated value of the work performed in reference or relative to the building. This accords with the apparent intention of the parties, as disclosed by the circumstances surrounding the making of the contract and their action under it; and it is at the same time a reasonable construction, for the greater part' of the labor performed and expense incurred by the contractors took place prior to the actual setting of the stone in the building.

But defendant calls attention to the fact that the 80 per cent, was to be based on the estimated value, and she insists that the estimates were to be made by the architects, and that the estimates which they did make were based on stone actually in the building; so that, assuming the construction we have given to the contract to be the true one, still, the payments were unauthorized by reason'of an absence of proper estimates. The plaintiff’s contract with the city did not provide for monthly payments based on estimates, but, on the contrary, that plaintiff should not be entitled to demand payment for any portion until it should be entirely completed. The agreement further provides, however, that, if the commissioners should direct, the architects should make estimates from time to time of the value of the work performed, upon which the commissioners could make payments in their discretion, not exceeding 80 per cent., provided the value of the work certified in such estimates should amount to $20,000. But, when the plaintiff came to subcontract the granite work to Pratt & Molleson, he agreed to make monthly payments, and without reference to the value of the work performed. Now, the estimates to which defendant refers were made by the architects under the contract between plaintiff and the city, and they were delivered to the commissioners of the department of public parks having the matter in charge. It is clear, therefore, that it could not have been upon such estimates that the parties intended to base monthly payments. Nowhere in the agreement between plaintiff and Pratt & Molleson is it provided, in terms, by whom the estimates should be made; but it is fair to presume, we think, that it was expected that the architects would make them. The plaintiff testifies that Mr. Berg, one of the firm of J. 0. Cady & Co.i architects, had substantial charge - of the building, and that Alfred B. Sharpe was the superintendent in charge of the building under them, and that Mr. Sharpe made, with plaintiff, examinations of the work done by Pratt & Molleson, and that occasionally Mr. Berg made examinations, also. Sharpe testified:

“ I superintended the work for Cady & Company, reporting to them. I was called up to go up to Niantic to investigate the amount of granite that might be found there, to find out for J. C. Cady & Company how much was there. * * In reference to the work of J. B. Smith, I may have gone a dozen times. * * * I have been through the yard, and examined the amount of granite that was there, and calculated how much was there, and reported. * * * In a way, I reported it to Mr. Smith also. I did so more to govern his control with the contractors than anything else,—to urge the work, and partly in regard to payments. * * * My report to Mr. Smith was in the nature of a voucher to Mr. Smith, and in the nature of orders from J. C. Cady & Company to push the work. I made one report as to the amount of granite in the place at Niantic, and another as to the amount that was actually put in the building.”

The testimony quoted is supported by other testimony in the case, and shows that the formal estimate made by the architects, in accordance with the contract between the plaintiff and the city, and filed with the commissioners, was only intended as a basis for the commissioners to determine what, if any, amounts should be paid to the plaintiff as the work progressed. It did not include anything except materials actually put in the structure. For the purposes of such an estimate, it was wholly unnecessary to go to Niantic and determine the value of the stone there and the work done thereon. Such an examination and estimate was only valuable as between Smith and his subcontractors, Pratt & Molleson. It furnished a basis for the eighty per cent, payment to them, which was authorized, as we have observed, by the terms of the contract; and the estimates thus made and acted upon by both parties constitute a reasonable compliance with the provisions of the agreement.

The judgment should be,affirmed, with costs.

All concur.


text:
    Henry W. T. Steinway, App’lt, v. William Steinway et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)

    Pleading—Denial.
    A denial generally of knowledge or information sufficient to form a belief as to whether a certain matter is correctly set forth in the answer, is not a denial of any material allegation in relation thereto.
    Appeal from an order requiring plaintiff to make his reply to the answer more definite and certain.

      Sullivan & Cromwell (William J. Curtis and Edward B. Hill, of counsel), for app’lt; C. W. Cotterill, for resp’ts.
   Parker, J.

This court held on a former appeal herein, Steinway v. Steinway, 68 Hun, 430; 52 St. Rep., 660, that the answer sets up one defense to which the defendants were entitled to a reply, and plaintiff was ordered to make one pursuant’to the authority conferred by § 516 of the Code of Civil Procedure. The defense to which the reply was required was briefly, but substantially, as follows: A meeting of the stockholders and trustees of Stein way & Sons was held on the 26 th day of December, 1889, at which meeting the plaintiff, as stockholder, was present, and a written offer was made, containing the sundry terms alleged, to sell the business of the fabrik to Steinway & Sons, which offer was accepted, and the business, good will, and property were so sold without opposition from the plaintiff, and ever since has been conducted under the management of Steinway & Sons, and has become large and profitable, and annual dividends have been declared and accepted by all the stockholders, including the plaintiff. By the terms of this accepted offer mutual releases were agreed to be executed of all claims and demands in behalf of Steinway & Sons and the said piano fabrik as against each other, and the business and property were sold at inventory prices. A reply was thereupon served, in which plaintiff admitted that he was present at the meeting, and in respect to the form of the offer made by defendant he averred: “But as to whether the offer so made is correctly set forth in said paragraph of said answer this plaintiff is ignorant, and has no knowledge or information sufficient to form a belief.” Now, a reply was required, because the defense did not appear to tender an issue of fact, but rather an issue which would be fatal to plaintiff unless its legal effect could be avoided. For this reason it was held that defendants were entitled to know whether the issue tendered would be admitted or denied; and, if admitted, how plaintiff would seek to escape the apparent legal consequence of the admission. Plaintiff seeks to avoid a full compliance with the order by alleging ignorance as to whether the offer is correctly set forth in the answer. This is not in compliance with the requirements of the Code, which makes it necessary, where a reply is required, that it should contain a general or specific denial of each material allegation controverted by the plaintiff, or of any knowledge or information sufficient to form a belief. In the case at bar, not only is there an offered alleged, containing sundry terms and material allegations, but is it further averred that mutual releases were made a part of it. A denial generally of knowledge or information sufficient to form a belief as to whether the offer is correctly set forth, is not a denial of each material allegation to which the plaintiff replies. He urges that he cannot be expected to remember accurately the terms of á writing read in his presence sevéral years ago. A similar reason was assigned in Wesson v. Judd, 1 Abb., 254, but the court made answer that if he had doubt as to the correctness of what purported to be a copy of the writing he could have demanded an inspection of the original, and, if refused, the court would compel its production. The order should be affirmed, with $10 costs and printing disbursements.

All concur.


author: Follett, J.

text:
    Alice J. A. Tiers, Resp’t, v. Mayor, Etc., of the City of New York, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)

    1. Municipal corporations—Obstructions.
    A municipal corporation must be deemed to have knowledge of an obstruction, which has existed for four or five months before the accident.
    2. Same.
    Where such corporation fails to exercise reasonable diligence in the care of its streets, it is liable, whether the act or omission is its own or that of some third person.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made upon the minutes of the court.
    Wm. H. Clark, corp. counsel (Theodore Connoly and Terence Farley, of counsel), for app’lt; Edward Gebhard, for resp’t.
   Follett, J.

This action was brought to recover damages for a personal injury caused, it is alleged, by the negligence of the defendant and its agents. Between 8 and 9 o’clock in the evening of May 1, 1891, the plaintiff, accompanied by a gentleman, while driving north in a buggy on the east side of Lenox avenue, between 113th and 114th streets, drove onto a pile of sand, was overturned, and the plaintiff thrown into the street and severely injured. The pile of sand extended from the curb on the east side of the avenue, from 8 to 15 feet, towards the center of the streat. There was some conflict as to how far the pile of sand extended into the avenue. The plaintiff testified that it extended from 12 to 15 feet, and one witness called in her behalf, who lived near the place of the accident, testified that it extended 15 feet into the avenue. One witness called by the defendant testified :

“ This pile extended into the street from seven to eight feet. I suppose it might have been from ten to fifteen feet long, stretching along the curb. In my estimation from two to three feet high.”

Two witnesses who lived near the scene of the accident testified —and they were not contradicted—that this pile of sand had Iain in the avenue four or five months. They also testified that they saw the accident; that there was no light on the sand that evening, until after the accident, when lights were placed on it. One of these witnesses testified that her attention was called to the absence of the light by the fact that there had been a light there every night before that one. It was also shown by undisputed testimony that no railing or guard was kept around the sand. It does not appear that the defendant ever caused this pile of sand to be lighted or guarded, or requested any one to do it, or that any precautions were taken by the defendant or its agents to prevent accidents. It does not appear by whom the lights had been placed on the heap of sand before the accident. Section 324 of the consolidation act provides:

“Sec. 324. -It shall be the duty of the commissioners to remove all obstructions now existing, or which may hereafter be placed upon any street or sidewalk, or public ground not inclosed in any public park.”

The obstruction which caused the injury had existed for four or five months before the accident, and the defendant, must be deemed to have had knowledge of it. It was bound to exercise reasonable diligence in the care of the street, and if it failed to do this it is liable, whether the act or omission which caused the injury is that of the defendant, or some third person. Nelson v. Village of Canisteo, 100 N. Y., 89; Turner v. City of Newburgh, 109 N. Y., 310; 15 St. Rep., 93; Pettengill v. City of Yonkers, 116 N. Y., 558; 27 St. Rep., 531.

The defendant cannot escape liability on the ground that the neglect to light or guard the obstruction on the night of the accident was the omission of some person who had previously assumed to place lights on the obstruction. The plaintiff and her companion were driving on the proper side of the street, and there is no evidence that their negligence contributed to the injury. The evidence is sufficient to sustain the verdict that the plaintiff was free from negligence, and that the defendant was guilty in permitting this obstruction to remain in the street unguarded, and so cause the accident.

The judgment and order should be affirmed, with costs.

All concur.


author: O’Brien, J.

text:
    Albert U. Todd et al., Resp’ts, v. James Gamble et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December, 15, 1893.)

    1. Damages—Contract.
    In an action for refusal to receive goods to be manufactured, where the subject of the sale has no market value, the_ measure of the vendee’s liability is the difference between the contract price and their actual value.

      2. Same—Charge.
    A charge of a request that “ in such an action, the usual measure of damages is the difference between the contract price and the costs of production,” is not reversible error.
    ■3. Appeal—Charge.
    Where a charge is a presentation of a mere abstract question of law, which did not mislead the jury, is not a proper ground for reversal.
    ■4. Same—Evidence.
    The admission of incompetent or immaterial evidence, if it is shown by the result that no injury was done to the adverse party, is not reversible error.
    5. Same.
    The fact that a party stands on his strict legal right and fails to accept an offer to meet his objections to evidence of value, justifies the denial of a motion to strike out such evidence.
    ■6. Witness—Cross-examination.
    The extent to which a cross-examination shall be allowed is within the discretion of the trial judge.
    Appeal from a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial.
    Carter, Hughes & Kellogg {Frederic K. Kellogg, of counsel), for app’lts; Benjamin F. Tracy {Albert Boardman, of counsel), for resp’ts.
   O’Brien, J.

It being conceded that defendants are liable for breach of the contract, the questions presented upon this appeal relate to the measure of damages, and the competency of evidence admitted or excluded upon the trial. On the former appeal in the same case before this court, Todd v. Gamble, 67 Hun, 38; 51 St. Rep. 619, we held that:

“ When an executory sale is made of articles having a marketable value, which the vendee refuses to accept, the measure of his liability is the difference between the contract price and their •actual value, which the law deems equivalent to their value in the market. But, if the subject of the sale has no market value, the measure of the vendee’s liability is still the difference between the contract price and the actual value of the goods; the actual value being a factor in each case' in determining the question of damages. When the value of the article cannot be determined by what it will sell for in the market, it must be' ascertained in ■other ways; sometimes by showing the cost of production.”

It appearing upon the former trial that there was a question •as to whether or not the commodity had a market value, the judgment was reversed, because the trial judge had held as a matter of law that the article was without a market value, and permitted damages to be measured by the difference between the cost of production and the contract price. We also held that, before the latter measure of damages could be applied, the burden was upon the plaintiff to show that the article had no market value, and that upon conflicting evidence this was a question of fact for the jury, and not one of law for the court. In addition to what formerly appeared, we have on the part of the defendants the testimony of a witness in substance to the effect that he was a member of a firm that dealt in silicate of soda; that the firm bought it from manufacturers, and sold it to consumers; and that it kept a stock on hand of from fifteen to thirty barrels, which it sold mostly to soap makers. This, together with other testimony presented here, as upon the former appeal, by defendants, was to offset the testimony offered by plaintiffs tending to prove that there was no market value for the commodity. It is insisted upon this appeal that in the present state of the record it was error not to hold as a matter of law that silicate of soda had a market value. We do not think it necessary to add anything to our former opinion on this subject, further than to say that we think the disposition made by the trial judge was correct.

Though not acquiescing in this view, but assuming that it is right, the appellants further contend that the court’s charge of the plaintiffs’ request that “ in such an action the usual measure of damages is the difference between the contract price and the cost of production ” is reversible error.' This position we do not regard as tenable, because the court in its main charge had very fully presented to the consideration of the jury the question as one for their determination as to whether there was or was not a market value for the silicate; and the jury could not have understood this instruction, presented by the court at plaintiffs’ request, otherwise than as a rule to guide them in the event of their determining that there was no market value. If the defendants had desired to avoid any confusion, they should have called the court’s attention to the fact that such a rule was applicable only where there is no market for the goods. The jury having found, however, that there was no market value, the instruction or request was a presentation of a mere abstract question of law, which "did not mislead the jury, and could not have injured the defendants, and would not, therefore, be proper ground for reversing a judgment in other respects valid.

It is further claimed that the verdict is excessive. The learned court charged the jury:

“ The plaintiffs, however, were obliged in their contract to make an allowance for barrels returned. Mr. Oscanyan says that in the forty cents which he has computed as the cost of producing this article these barrels are put in at seventy-six cents. Should you come to the conclusion that there was no market value, and that the plaintiffs are entitled to recover the difference between the cost of the production and the contract price, you will allow the defendants a deduction of four cents upon the number of barrels which were called for by the 1,582,468 pounds, which has been stated by General Tracy, and, I suppose, is con"ceded, to be 2,877 barrels, or thereabouts.”

The defendants excepted to this charge, and it presented the question whether, in estimating the rebate, the defendants should have been allowed for the barrels eighty cents, or merely the difference between seventy-six and eighty cents, as charged by the court. It was shown that a barrel would bold 550 pounds of silicate of soda, that the cost of production was forty cents a hundredweight, or $2.20 per barrel, and that in this was included seventy-six cents as the cost of the barrel. By following the instructions of the court the jury would proceed to a computation of plaintiffs’ damages as follows:

Contract price per barrel: 550 pounds, at $1.10 per cwt., $6.05..................................
Contract price of 2,877 bbls., at $6.05............. $17,405 85
Cost of production of 2,877 bbls., at $2.20......... 6,329 40
Difference ................................ $11,076 45
Allowance to defendants on 2,877 bbls. of 4c per bbl. 115 08
Amount of plaintiffs’ damages............... $10,961 37

That this is the correct result becomes clear if we take a single barrel of silicate, and determine, under the terms of such a contract as the one under consideration, what would be the difference between the cost of production and the selling price:

Contract price per barrel............................. $6 05
Cost of production, including barrel (550 lbs., at 40c.).... 2 20
Difference..................................... $3 85
Allowance to defendants for return of barrel............ 80
Plaintiffs’ money profit per barrel................. $3 05

This leaves the transaction with plaintiffs in possession of their money profit of $3.05 and the returned barrel, which latter article they are entitled to have turned into its money value, and added to their profits on the barrel’s contents. The only evidence showing the value of a returned barrel is that furnished by the contract, in which plaintiffs agree to a valuation of eighty cents; but, as one of the plaintiffs testified it only costs seventy-six cents originally, it is fair to say it was worth no more after use. Adding, then, seventy-six cents as the value of the returned barrel to plaintiffs’ profit on the contents of the barrel, makes $3.81 per barrel as the sum for which plaintiffs would be entitled to recover. There being 2,877 barrels, this number, multiplied by 3.81, gives $10,961.37, as the amount due the plaintiffs, which is the same "as that arrived at by following out the instructions of the court. The verdict in the case was $10,692.19, or $269.18 less than the -jury would have been justified in allowing under the ruling of the court. The charge, therefore, on this subject, does not present error as against the defendants.

This consideration, throwing out the difference between what the jury would have been entitled to assess and what in fact they did assess, equally disposes of many of the other objections urged upon our attention. Thus is answered the suggestion that it was reversible error to permit testimony concerning conversations between the parties preceding the written contract, and concerning the original and increased capacity of the plaintiffs’ plant before and after the making of the contract, and the fact that subsequent thereto its capacity was increased. Though it would appear that such testimony was either incompetent or immaterial, it is shown by the result arrived at by the jury that no injury was done thereby to the defendants.

Another error assigned is that, in violation of the- rule relating to damages, the plaintiffs’ testimony purported to average the price of the various elements entering into the cost of production during the whole contract year, and did not specify the price as of the time when the breach occurred. This objection was presented upon a motion to strike out the testimony which had been given by the plaintiffs’ witness as to the cost of production ; and when the motion was made the plaintiffs’ counsel, in answer thereto, offered to fix the cost as of the 22d of April, the date of the breach, and to further prove that the price remained so throughout the year. Instead, however, of defendants electing to fix upon a date when the damages should' be estimated as of that time, their counsel remáined silent, standing upon his strict legal right to have his motion to strike out granted or denied; to the denial of which motion he excepted. We do not think that this exception is good. The plaintiffs, upon their theory as to how the damages were to be estimated, averaged the cost of production throughout the year, and presented testimony showing such cost. Thereafter the defendants, having presented the question that this mode was not the proper one, were met by the offer of the plaintiffs’ counsel to conform to their view as to fixing the date, and to correct the proof; but the defendants seemed more anxious to get a bad instruction than to get evidence as to the true measure of damages.

It is further insisted that the jury, in estimating the cost of production of the article, failed to include any portion of the fixed charges by way of loss of interest, taxes, insurance, etc., upon the value of the plant at which the commodity in question was manufactured. It does, appear that upon cross-examination the defendants elicited the fact that the total business of the plaintiffs during the contract year in question was about $200,000, of which the silicate of soda contracted to be sold to these defendants would have equalled the sum of about $17,000; and from this the argument is adduced that 17-200 of the fixed charges should have been allowed by the jury. It thus appears that what items were included and what excluded in fixing the cost of production were before the jury, and that the amount awarded was less than the full amount based upon multiplying the cost of producing a single barrel bv the total number of barrels provided for in the contract; and we cannot, therefore, say that the jury did not make some allowance from this item of fixed charges in arriving at their verdict.

The appellants’ further contention- that the court erred in excluding defendants’ cross-examination as to the total annual profits of the plaintiffs’ firm is not entitled to much weight, because the extent to which cross-examination shall be allowed is within the discretion of a trial judge; and where, as here, such discretion was exercised for the purpose of preventing what would have been practically an accounting with respect to plaintiffs’ business, it was proper for the court to prevent the cross-examination exceeding the legitimate bounds. We think, therefore, that the judgment was right, and should be affirmed, with costs.

All concur.


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    United States Vinegar Co., Resp’t, v. Michael Foehrenbach, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)

    Evidence—Documentary.
    Under chapter 311 of 1877, a copy of the charter of an Illinois corporation, certified under the great seal of the state, is sufficient to prove incorporation under the laws of Illinois, without an exemplified copy.
    Appeal from a judgment entered on a verdict in favor of plaintiff.

      Benno Loewy, for app’lts; Ten Eyck & Remington (8. R, Ten Eyck, of counsel), for resp’t.
   Parker, J.

J.— An examination of the argument of the appellants discloses that all of the questions discussed, involving the merits, were passed upon by this court in United States Vinegar Go. v. Schlegel, 67 Hun 356; 51 St. Rep., 453. Their further consideration at this time we deem unnecessary.

Appellants’ contention that the plaintiff failed to prove its incorporation under the laws of the state of Illinois, because the certificate of its secretary of state to such effect was not exemplified, as required by § 906, U. S. Rev. St., is without force. Section 27, c. 32, of the Revised Statutes of the state of Illinois reads as follows:

“Certified copy of Charter Evidence. The certified copy of any articles of incorporation, and changes thereof, together with all indorsements thereon, under the great seal of the state of Illinois, shall be taken and received in all courts and places as prima facie evidence of the facts therein stated.”

This certificate is under the great seal of the state of Dlinois, and therefore receivable in evidence by the courts of that state as prima facie evidence of the facts therein stated. By chapter 311, Laws 1877, it is provided that such certificates shall be received by the courts of this state with the same force and effect, in all respects, as prima facie evidence, as in the state from which the certificate comes.

The judgment should be affirmed, with costs.

All concur.


author: Pratt, J. Barnard, P. J. (dissenting.)

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    The Hartford Fire Insurance Co., App’lt, v. Robert H. M. Dickinson et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    Release—Payment by third person.. 11
    Where, in an action by an insurance company against persons who had formerly been its agents, to recover premiums alleged to have been collected and not paid over, the wife of one of the defendants testified that she made arrangements with the plaintiff to continue the agency, and that, under such.arrangements, she settled plaintiff’s claim, partly in cash and partly hy giving her notes, and that she was authorized to act in the mat- ' ter for her husband, the evidence is sufficient to sustain a finding that such payment hy the wife was in satisfaction of plaintiff’s claim.
    Appeal from a judgment entered upon the report of a referee.
    Action by the Hartford Fire Insurance Company against Eobert H. M. Dickinson and James H. Blauvelt to recover $611.51 alleged to have been collected by defendants as agents for plaintiffs. The referee found that, prior to the commencement of the action, plaintiff had received from Catharine M. Blauvelt, wife of defendant H M. Blauvelt, notes and cash to the amount of the claim ; that at time of said payment said Catharine M. Blauvelt held a power of attorney to transact all business for her said husband, which power of attorney was made and, executed by her said husband; that the payment so made by her was intended by her to be in full satisfaction and discharge of all claims of plaintiff against defendants,- and was received by plaintiff in full satisfaction and discharge of all its claims against defendants. There was a judgment in favor of defendants, and plaintiff appeals. Affirmed.

      George W. Weiant, for app’lt; Snider & Hopper, for resp’ts.
   Pratt, J.

We think the answer in this case sufficiently alleged payment .of the plaintiff’s claim, in the 9th, 11th and 13th paragraphs thereof, and that the findings of the referee are sustained by the evidence. The finding is that Mrs. Blauvelt, as the agent of James H. Blauvelt, paid the claim in suit, and the same was received by the plaintiff in satisfaction thereof. The finding is explicit that the intention of the parties was to have the payment discharge the obligation. All the surrounding circumstances corroborate this theory. Mrs. Blauvelt and Polhemus succeeded to the business, and met the plaintiff to perfect the arrangements to go on with the business. Mrs. Blauvelt testifies she was authorized to act for her husband, who had the right to pay the debt, and that she did pay a part of it, and Polhemus the balance. There is no denial of the testimony given by Mrs. Blauvelt and defendant Dickinson, and it is evident from the conduct of the parties that a full settlement was made at the time the business was turned over to the new firm of Blauvelt & Go. _ _

_ _ There are many exceptions taken, but none of sufficient merit to reverse the judgment The result is just, and the judgment must be affirmed, with costs.

Dykman, J., concurs.

Barnard, P. J. (dissenting.)

The facts are not disputed. The defendant and James H. Blauvelt were partners in business at Nyack, Eockland county, as insurance agents. The company failed, owing the plaintiff a considerable sum for premiums collected. The wife of Blauvelt applied to the plaintiff to become its agent, and agreed, in consideration of being appointed, to pay the firm debt. The company agreed to and did appoint her agent. She paid a portion of the debt in cash, and gave her note for the remainder, which she has not paid. The firm had no connection with the transaction, and there was no agreement, even, that the wife’s note should be accepted in satisfaction of the firm’s debt The referee, on these facts erroneously found that the firm debt was paid by the unpaid note. There was no payment,—probably, not even so far as the cash payment by the wife. The debt was not discharged. Madison Square Bank v. Pierce, 137 N. Y., 444; 51 St. Rep., 175. The judgment should be reversed and a new trial granted, costs to abide event


author: Pratt, J. Barnard, P. J., (dissenting.)

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    The People ex rel. Pratt Institute, Resp’t, v. Board of Assessors of Brooklyn, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    Taxation—Exemption.
    Section 10, chap. 398 of 1887, exempts Pratt Institute from taxation for city purposes only.
    Appeal from an order granting an application for a writ of mandamus to the board of assessors of the city of Brooklyn, to compel defendant to cancel the taxation imposed upon relator’s property.

      Almet F. JenJcs, for app’lt; Johnson & Lamb {Jesse Johnson, of counsel), for resp’ts.
   Pratt, J.

The act of 1887 states that property of the relator in the city of Brooklyn shall be exempt from local taxation. We think that by “local taxation ” the legislature intended taxation for city purposes. The locality referred to was the city of Brooklyn. No other locality was spoken of; and, so far as we can see, none other was considered. The appellant correctly argues that special statutes conferring immunities should be strictly construed, and, if the legislature had intended that the relator should be subject to no taxation except for state purposes, it could have easily said so.

Barnard, P. J., (dissenting.)

By chapter 398, Laws 1887, the relator’s property is declared not to be subject to local taxation ” unless it exceeds $3,000,000 in value. The property of the Pratt Institute is less than this sum, and the court, at special term, held that local taxation included taxation for city and county purposes. The distinction between state and local taxation is fully recognized in statute and by judicial decision. All taxation is local which is not of common benefit to all the people of the state. It is entirely immaterial whether or not the property is in the city. The legislature could have exempted it from all purposes, state and local. An exemption from local taxation only exempts the same from the general state tax, and excludes taxation for city and county purposes.

The judgment should be affirmed, with fifty dollars costs.


author: Pratt, J.

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    Thomas Atwood, Resp’t, v. Edward C. Beirne, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)
    Malicious Prosecution—Termination.
    The disposition of a case in a manner that amounts, in substance, to a compromise or an abandonment of the proceeding by mutual consent, is not such a termination as will sustain an action for malicious prosecution.
    Appeal from a judgment entered upon a verdict in favor of plaintiff, and from an order denying a motion for a new trial on the minutes of the court

      John W. Lyon, for app’lt; Wilton Bennet, for resp’t.
   Pratt, J.

Appellant urges that the court below erred in refusing to dismiss the complaint for failure to prove want of probable cause. The defendant testified that ten dollars had been stolen from his office, and that no one was present at the office when the money was taken but the plaintiff and his wife. The court said that if a theft had been in fact committed, then there was probable cause for the prosecution. We think that was as far as the trial judge could go in that direction. Plaintiff denied having taken the money, and the question whether a theft had been committed was practically left to the jury with the instruction that, if there had in fact been a theft, probable cause was shown. We think this was the proper course. Nor was any error committed in the charge as-to smart money. Under the charge the jury were not allowed to find a verdict for plaintiff unless they found that no theft had been committed, and that the charge was made maliciously. Where a complaint is made under such circumstances, smart money might well be given.

It is also urged that the prosecution was not so terminated in plaintiff’s favor as to afford the proper foundation for this action, and this objection appears to be well founded. There were two cross complaints of assault and battery and one complaint for larceny. One of the assault cases was tried three times before a verdict was reached, and by that time the parties, their counsel, and the justice were all tired of the matter, and were equally eager to end the proceedings. It was arranged by counsel that the complainants should respectively be absent from court upon the days to which the proceedings were adjourned, and each complaint thus fell for want of prosecution. That disposition of the matter was judicious, and creditable to all concerned, but it was not such a termination of the prosecution as would sustain an action. In principle it was a compromise or an abandonment of the proceeding by mutual consent, and no real determination has been had. On that ground the plaintiff’s case fails. There must be a reversal of the judgment, and a new trial; costs to abide the event.

All concur.


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    James M. Campbell, et al., Resp’ts, v. United States Foundry Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    Pleading—Nuisance.
    In an action for damages, it is sufficient to state that “defendant so negligently and carelessly” did the acts as to cause the damage.
    Appeal from a judgment entered upon a verdict in favor of plaintiffs.

      Henry A. Monfort, for resp’ts.
   Pratt, J.

This is an appeal by the defendant from a judgment entered on a verdict in favor of plaintiffs, and from the order denying defendant’s motion for a new trial. The action was brought to recover damages sustained by plaintiffs in the destruction of their property by fire occasioned by sparks from the defendant’s foundry. Plaintiffs had a hay and feed store on Division street, Long Island City. The defendant had its foundry about 150 feet west of plaintiff’s store, where it was engaged in the manufacture of weights from tin cans, scraps of tin, and the like. For the purpose of smelting, the tin was put into defendant’s furnace, where it was subjected to a strong draught of air and great heat—some 2,700 degrees. In this way, the metal, when it became molten, fell to the bottom of the furnace, and was then drawn off into molds. Surmounting the furnace was a chimney of boiler iron, fifty-eight feet high, on the top of which, at one time, defendant had placed an iron plate, with holes, or iron netting, for the purpose of arresting the sparks. This spark arrester had become dilapidated, and was not in use at the time of the fire. It was shown on the trial that on two or three occasions the sparks from defendant’s chimney, which were described as red hot, and from one to two inches square, had fallen on paper or hay on the plaintiff’s premises, and ignited them. At the time of the fire, Mr. Campbell and one of his men were engaged in loading hay. A strong wind was blowing from the west, and Mr. Campbell testifies that he saw sparks coming from defendant’s foundry, which lighted on and in their building; that they stamped out what sparks they could, but that the hay in the building took fire, and they were unable to extinguish it, and the loss complained of occurred. There was some conflict of evidence, but the question of the origin of the fire—whether from sparks from defendant’s chimney or not—was one of fact, and properly left to the jury to decide. It is quite immaterial on which ground the jury held the defendant liable, whether from negligence in the way it conducted its smelting, or because its methods created a nuisance.

There was evidence that appliances for arresting sparks were used, and, when used, prevented sparks from escaping from chimneys like defendant’s; that defendant had at one time used one on its but did not use it at the time of the fire. If the jury believed this evidence, a clear case of negligence was proven. But suppose the contention of the defendant be true, that it was impossible, by reason of the great heat, to maintain a spark arrester on top of its chimney. The case then becomes one of nuisance. The law as to damages resulting from nuisances is well settled: “ Where the damage is the necessary consequence of just what the defendant is doing, or is incident to the business itself, or the manner in which it is conducted, the law of negligence has no application, and the law of nuisance applies. Opinion of Judge Brown, Bohan v. Port J. Gaslight Co., 122 N. Y., 26 ; 33 St. Rep., 246.

The evidence clearly shows that the defendant maintained a nuisance in conducting its business at the time of the fire. We know of no rule of pleading which requires a complaint in an action for damages to allege as a fact that the acts complained of constituted a nuisance. It is sufficient, as alleged in the complaint in this action, to state that “the defendant so negligently and carelessly” did those acts as to cause the damage.

The defendant excepted to the admission of evidence to the effect that sparks had been emitted from its chimney since the fire. That ruling was a proper one. Plaintiffs had proven that the chimney was in the same condition as before the fire. This is the only exception that seems to require any comment.

The charge of the trial judge correctly stated the law, and his disposition of the defendant’s requests to charge was as favorable to the defendant as it could have expected. The judgment and order appealed from should be affirmed, with costs.


author: Dykman, J.

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    James D. Heatherington, App’lt, v. Claus Martens. Margaret Fitzpatrick, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    Supplementary proceedings.
    Where, upon the vacation of an order in supplementary proceedings for insufficiency of the papers on which it was based, it was ordered that the amount of the creditor’s judgment should be retained by the sheriff out of the proceeds of a-judgment in favor of the judgment debtor which had been assigned, until the further order of the court, an order directing payment to the assignee of the money so held by the sheriff, will not be disturbed, where such assignee has waited more than seven weeks for the judgment creditor to proceed with the examination. -

      Charles L. Hubbell, for app’lt; William A. Shortt, for resp’t.
   Dykman, J.

This is an appeal from an order made by the county court of Richmond county. The facts upon which the order was based are these: Martens recovered a judgment against one Faliy on the 19th- day of December, 1892, for $418.42, and an execution was issued thereon to the sheriff, who made a levy under it That judgment was assigned by Martens to Margaret Fitzpatrick by an instrument made January 3j 1893, and filed and recorded in the office of the clerk of Richmond county, January 21, 1893. That assignment was made for a valuable consideration, and made in good faith. Thereafter, on January 23d, Heatherington, the appellant, recovered a judgment against Martens for $86.68 in the court of a justice of the peace, and caused execution to be issued thereon to the sheriff. Before the return of the execution the appellant procured an order for the examination of Martens in proceedings supplementary to execution, on the allegation that he had property which he unjustly withheld; and Fahy, who was summoned as a witness, was enjoined from the payment of the judgment held by Miss Fitzpatrick. Martens, not being personally served, failed to attend the examination, and the appellant procured an order requiring him to show cause why he should not be punished for contempt, which was returnable on the 14th day of February. Mertens obtained an order to show cause, returnable the same day, why the order for his examination should not be vacated, upon the ground that the papers upon which it was obtained were insufficient to give jurisdiction. On the 14th of February these motions were heard by the county court, and decided in favor of Martens, and the order for his examination was vacated, and the injunction upon Fahy was dissolved. In order, however, to give the appellant an opportunity to examine Martens, it was ordered by consent that the amount due on the Martens judgment against Fahy should be turned over to the sheriff, and so much as was claimed by Heatherington upon his judgment against Martens—$88.68— should be held by that officer until the further order of the court. Thereupon Fahy paid the full amount of the judgment against him, the sheriff giving him a receipt for $88.68; and the balance was turned over to Miss Fitzpatrick, and, having thus paid the judgment, Fahy demanded a receipt and satisfaction thereof. After waiting over seven weeks for the appellant to proceed with the examination of Martens, he offered to submit himself at any time for that purpose. Miss Fitzpatrick, on March 30th, gave notice as provided in the order of February 14th of motion for an order directing the sheriff to pay to her the amount collected by him, and held under the order of February 14th. On that notice, and the affidavit of herself, Martens, and Shortt, and on the order of February 14th and the -sheriff’s receipt, the county court, after hearing both sides, made an order requiring the payment by the sheriff of the sum of $88.68, remaining in his hands, to Miss Fitzpatrick. Hone of the facts were controverted.

This statement of facts is abundantly sufficient to show the validity of the order. The sum in dispute was collected on the judgment owned and held by Miss Fitzpatrick, and her title thereto had been in no way impeached. The sheriff, by the order of February 14th, was made a stakeholder of that sum of money until Heatherington should have an opportunity to examine Martens, and investigate the transaction respecting the assignment. There was, therefore, no question for the court whatever, and it properly decided that the funds should be paid to the respondent. The money was collected by the sheriff on the Martens judgment, which had been fairly assigned to Miss Fitzpatrick. The order should therefore be affirmed, with $10 costs and disbursements.

All concur.


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    Edson C. Jennings, Resp’t, v. D. G. Burton Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    1. Animals—dock
    The fact that the dog was kept in a stable owned and leased by defendant to the owner of the dog, is not sufficient to charge the former with liability, in an action for injuries caused by the bite of such dog.
    3. Same—harboring.
    He is not liable on the ground of harboring the dog, where he became the owner of the premises, on which the dog was kept, only ten days before the injury.
    Appeal from a judgment entered upon a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Robert McO. Robinson, for app’lt; David Swits, for resp’t.
   Pratt, J.

The defendant appeals from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial. The action was brought to recover damages sustáined by the plaintiff, an employe of the defendant, from the bite of a dog, alleged to have been kept by the defendant. The evidence shows that at the time of the injury one James D. Burton occupied a stable which the defendant had leased to him on February 16, 1892; that said stable was situated some 300 feet distant from the engine room where plaintiff was employed at the time of the injury; and that said Burton owned and kept a dog in said stable, which attacked and bit the plaintiff on the morning of February 26, 1892. It was further shown that the defendant was incorporated on February 1, 1892, and became the owner of said stable and the premises where plaintiff was employed on February 16, 1892. There is no evidence in the case, so far as we have been able to discover, that the defendant owned the dog, or had it in possession; on the contrary, .it was clearly proven that the dog belonged to James D. Burton, and was kept by him at his stable. Nor was there any evidence to hold the defendant as a harborer of the dog for the space of twenty days previous to the injury, under 1 R. S., p. 706, § 20. That could not have been found, for the reason that the defendant did not become the owner of the premises until February 16, 1892,—only ten days before the injury. On this state of facts, even conceding that the dog was a vicious one, we do not see how plaintiff can recover in this action. But we do not find sufficient evidence that the dog really was a vicious one. He had never before bitten any one, or, so far as we can find in the evidence, done anything from which the defendant, even if it owned the dog, could be presumed to have notice that the dog was a vicious one. He was chained in Burton’s stable, and at times had growled and barked at persons passing near him. Such actions did not make the dog a vicious one. But it is unnecessary to discuss this branch of the case. It is sufficient for the purposes of this appeal that it was shown on the trial that the defendant was not the owner of the dog, and had not harbored him for twenty days required by the statute to make "the defendant liable for any injury the dog might do.

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


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    Louise B. Lynch, Resp’t, v. Albrecht J. Lerche, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    Judgment—Excessive.
    Where, under an agreement to divide the proceeds of services, the plaintiff, as assignee of one party thereto, recovers a judgment for $1,000 upon a claim for $1,870, which includes a charge of $1,200, in a case in which defendant testified that they received $210, of which plaintiff’s assignor knew and received half, such recovery is excessive.
    Appeal from a judgment entered upon a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes.

      Benjamin W. Downing, for app’lt; L. B. Treadwell, for resp’t.
   Dykman, J.

This is an appeal from a judgment and an order -denying a motion for a new trial upon the minutes. The action is brought to recover upon a claim for services rendered by Leman B. Treadwell as a lawyer, which was assigned to the plaintiff, Louise B. Lynch. The claim was for $1,870, and the jury rendered a verdict in favor of the plaintiff for $1,000. Treadwell and the defendant are both lawyers, and Treadwell is the attorney for the plaintiff in this action. Treadwell was the only witness for the plaintiff, except a boy, whose testimony was immaterial; and the defendant was a witness in his own behalf, and called no other. The testimony in support of the claim was very unsatisfactory, and in our view it was overcome by the testimony of the defendant, and the facts and circumstances developed during the trial. As we have said, the defendant and Treadwell were lawyers. Their ■offices were together, substantially in the same room. Treadwell admits that they took some business together under an agreement to divide the proceeds. Lerche says all the services performed by "Treadwell were under that agreement, and that is most natural. No reason was disclosed for any different arrangement in respect to services involved in this action. If, however, it can be said that the jury has found in favor of the plaintiff, and that we are concluded by the verdict upon the main question, the same ■cannot be said respecting the value of the services, for in respect to such valuation the testimony is entirely insufficient to sustain the verdict. In the first place, the extent of the actual service is very indefinite, and in many cases the charges are excessive, and out of proportion to the labor. In relation to the proof of the value of the services, the detailed testimony of Treadwell consisted of statements of the charges he had made, and he then, near the close of his examination, estimates the value of the entire services rendered at $1,975. That amount includes a charge of $1,200 in the case of Blind Tom, and Lerche .says they received $210 in that case from the committee, under an agreement of which Treadwell had knowledge, and Treadwell received one-half of that sum under the general agreement between them. Treadwell does not deny knowledge of the agreement with the committee to perform the legal services for $210, nor the receipt of one-half of that sum. Upon that point, then, the testimony ofLerche stood uncontradicted, and took the $1,200 charge out of the case. Yet that charge went to the jury, and some portion of it must have been included in the verdict, as it could not have reached the sum of $1,000 independent of that amount. So it appears very plainly that the verdict is excessive, and the testimony is entirely insufficient for its support. The judgment and order denying the motion for a new trial should be reversed, and a new trial granted, with costs to abide the event.

All concur.


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    Elwood B. Mingay, App’lt, v. Mary E. Lackey et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    Partition—Judgment.
    Where an interlocutory judgment of partition-provides for payment of a gross sum to the tenant by the curtesy, the judgment is properly modified by striking out such provision, if such tenant dies before the sale is made.
    Appeal from an interlocutory judgment in partition.

      Sidney H. Stuart, for app’lt; Feiiner & Beck (Edwin S. Babcock), for resp’t.
   Pratt, J.

The interlocutory judgment did not divest the estate by curtesy. That existed and was fully enjoyed till the death of the life tenant. The object of paying a gross sum to the life tenant out of the proceeds of the sale is to indemnify the life tenant for the estate of which he is to be deprived by the partition sale and the conveyance under it. As the life tenant died before the sale took place, the life estate thus extinguished can no longer be the subject of sale, and the provisions of the interlocutory judgment relating thereto were properly expunged by amending the judgment. Mulford v. Hiers, 13 N. J. Eq., 13, is a case of dower, but the principle is applicable here.

Order appealed from affirmed, with costs.


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    William Riley, App’lt, v. Mary A. Riley, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    Annulment of marriage—Grounds.
    In an action to annul a marriage on the ground of physical incapacity of defendant, the fact that, in due time after marriage, she gave birth to twins, negatives her want of capacity.
    Appeal from a judgment in favor oE the defendant.
    Wm. Riley, in pro. per.; Thayer & Small, for resp’t.
   Pratt, J.

This action was brought to annul the marriage between plaintiff and defendant on the grounds that the defendant, at the time of the marriage, was physically incapable of contracting marriage; that such incapacity was known to her but unknown to him, and was fraudulently concealed from him by the defendant. The parties intermarried on July 14, 1890, and cohabited together until shortly before this action was commenced, in June, 1892,—a period of nearly two years. They had twins born to them in February, 1891, about seven months after their marriage, one of which died on the night of its birth ; the other, about three months later. This would seem to dispose of the question of defendant’s want of capacity, unless plaintiff expected her to have triplets.

As to the other grounds alleged by plaintiff, it is insufficient to say they were not proven,— neither the incurable defects, nor their fraudulent concealment; and, even if proven, we know of no rule of law that will enable a husband to annul the marriage contract on the ground that his wife has a swollen tongue, or inflammation of the bladder.

We are satisfied that the court at special term made a proper disposition of the case, and that the judgment should be affirmed, with costs.


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    William M. Sherwood, Resp’t, v. Tjark J. Houtman, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    Contract—Breach.
    In an action for services under an agreement to construct a stable floor so as to be water-tight, plaintiff is not entitled to recover, if such floor is not water-tight.
    Appeal from a judgment in favor of the plaintiff.

      Thomas K Stewart, for app’lt; Arthur Hurst, for resp’t
   Pratt, J.

The contract was in writing, and required the stable floor to be water-tight. As the ground floor was to be used as a repository for carriages, it was clearly necessary that the floor above should be absolutely tight, or the business could not be carried on. Both parties contracted upon that principle. There is no substantial conflict of evidence as to the fact that the contract was not so completed. It is true that plaintiff and some of his witnesses testify in general terms that he completed the floor so as to be water-tight; but that is, from the nature of the case, only matter of opinion. They so completed it that they expected it to be water-tight. But the proof is conclusive that the floor was not water-tight, and the evidence sufficiently shows that the floor was built upon a wrong principle, and required to be re-laid before it could be tight. The plaintiff failed in the essential part of his contract, and the verdict in his favor was contrary to the evidence.

The order denying a new trial must be reversed, and a new trial granted, with costs to abide the event.

All concur.


text:
    Woodhaven Junction Land Co., App’lt; v. John Solly et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December, 1, 1893.)

    Vendor and purchaser—Sale for business purposes.
    A contract to convey real estate, made with the understanding that the vendee is to use the premises for business purposes, does not prohibit the sale of intoxicating liquor thereon.
    Appeal from a judgment in favor of defendants.
    Action by the Woodhaven Junction Land Company against John Solly and Charles Lange to restrain defendant Solly, as landlord, and defendant Lange, as his tenant, from further letting or using certain premises for the business of a saloon, and for damages. The premises were purchased by defendant Solly from plaintiff in June, 1891, but the deeds were not delivered until three months after the purchase money had been paid, and the building already erected thereon and rented. The sale was made with the understanding that the vendee was to use the premises for business purposes. The deeds were delivered, containing clauses prohibiting the sale of intoxicating liquors on-the premises conveyed.

      L. C. Whiton, for app’lt; Read, Hatting & Wininer, for resp’t Solly; M. L. Towns, for resp’t Lange.
   Pratt, J.

The proof shows that Solly bought the land with the understanding that it could be used for business purposes. We think the court below correctly held that under that description a liquor business should be permitted. It follows ' that Solly could not be required to accept a deed restricting him from selling liquors. His failure to object at once was sufficiently explained.

Judgment affirmed, with costs.

All concur.


text:
    Robert Jackson, App’lt, v. Pierre M. Brown, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    Pleading—Demurrer.
    A complaint where the first count is for loss of services of plaintiff’s servant, and the second to set aside a release of the first cause of action on the ground that it was obtained by fraud, is not demurrable on the ground of misjoinder.
    Appeal from a judgment sustaining a demurrer.

      Mansfield Compton, for app’lt; A. A. Gardner, for resp’t.
   Pratt, J.

This is an appeal from a judgment entered upon an order sustaining a demurrer to the complaint. Nominally, the first cause of action is for loss of services of a servant by reason of seduction by the defendant, and the second cause alleged is to set aside a release of the first cause of action, obtained by fraud. Although alleged as two causes of action, there is really but one— the action for loss of services. The allegations relative to the release were merely incidental to the cause of action. It is true the plaintiff has pleaded the loss of services, and left it for the defend rnt to set up the release as a defense, and then avoided it on the ground that it was obtained by fraud, but the defendant is not prajudiced by the fact that it is a part of the complaint. We also think this method of pleading is authorized by the Code, but it may not be greatly commended. The case resembles the familiar method often employed when it is sought to reform a policy of insurance, and then recover upon it as reformed.

Judgment reversed, and new trial awarded, with costs to the appellant, to abide the event.


author: Martin, J.

text:
    David Aldridge, as Superintendent of the Poor of Oneida County, App’lt, v. Mary Walker, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed December, 8. 1893.)

      1. Poor, persons—Support.
    So long as the order, under § 920 of the Code of Criminal Procedure, remains in force, and support and relief are not given by the relative, a recovery can be had without proof that the public has supported the poor person.
    2. Same—Irregular order.
    Such order, though it gives no option to the relative to support her daughter or pay the amount provided, cannot be treated as void.
    3. Court op sessions—Jurisdiction.
    The court of sessions is a superior court, and its jurisdiction, is presumed.
    Appeal from a judgment in favor of defendant.
    Sarah Walker is the daughter of the defendant. On April 4, 1887, the court of sessions of Oneida county made an order which recited that on reading and filing the application of the superintendent of the poor of Oneida county, and due proof of the service of notice of such application upon the defendant, and after hearing the proof and allegations on the part of said applicant, no one appearing to oppose, it was ordered that the defendant pay to the superintendent of the poor of Oneida county the weekly sum of six dollars each and every week from the date of the order until the further order of the court, such sum to be used exclusively for the support and maintenance, -from and after that date, of the said Sarah Walker; and also, that the defendant pay the superintendent $95 for his costs and expenses to be paid within 20 days after the service of a duly certified copy of the order. Subsequently, an order was made allowing the defendant to appear and defend that proceeding, notwithstanding her default. On the 17th day of June, 1887, at a court of sessions held in and for the county of Oneida, an order modifying the former order was made, whereby, after reciting that an order for a rehearing had been made, and that a rehearing was had and evidence given thereon, it was provided that the order made at the preceding term of the court, awarding six dollars per week for .the support of Sarah Walker, should be modified, and the amount reduced to three dollars per week, to be paid monthly to the superintendent of the poor of Oneida county, and not weekly, as provided in the former order. The costs of the proceeding and the sum named in the order were paid by the defendant until May 29, 1888, but nothing was paid after that time. This action was commenced November 18. 1890, to recover the amount directed to be paid by such orders, and becoming due by the provisions thereof after the 29th day of May, 1888.. On the trial the plaintiff introduced in evidence certified copies of the orders made by the court of sessions on April 4, 1887, and June 17, 1887, respectively. The proof also tended to show that Sarah Walker had sometimes been an inmate of the poorhouse of Oneida county, and at other times not; that she was discharged from the county house July 10,1886, and was not there again until May, 1891, after the commencement of this action ; and that the defendant had neither maintained and provided for her daughter nor paid the sum prescribed by the order after May 29, 1888.

      Hoiuard G. Wiggins, for app’lt; Smith M. Lindsley, for resp’t.
   Martin, J.

The proceedings which resulted in the .orders requiring the defendant to pay three dollars a week for the support of her daughter were instituted under the provisions of title 8 of the Code of Criminal Procedure, which are substantially like the provisions of the Revised Statutes ’as they existed before the adoption of the Code. Herendeen v. De Witt, 49 Hun, 55; 17 St. Rep., 298. That title defines the liability in such cases, and prescribes the procedure to enforce it. The respondent seeks to uphold the judgment in this action upon the ground that no cause of action existed when the suit was commenced. She claims that, as there was no evidence to show that the superintendent of the poor had either maintained the defendant’s daughter or paid for her maintenance before this action was brought, no cause of action existed against the defendant in favor of the plaintiff. It will be seen, however, that § 920 of the Code of Criminal Procedure, provides that if a relative required by an order of the court to relieve or maintain a poor person neglects to do so in the manner approved by the officers mentioned in § 914, and neglects to pay the sum prescribed by the court, the officers may maintain an action against the relative, and recover therein the sum prescribed by the court for every week the order has been disobeyed to the time of the recovery. In this case it "was shown that the defendant had neither provided for her daughter nor paid the sum prescribed in the order. Under such circumstances, the order being in full effect, we think the plaintiff was entitled to recover the sum prescribed thereby. If the defendant desired to relieve herself from the effect of the order, she should have applied to the court of sessions, under the provisions of § 918, for a change of it; but so long as the order remained unchanged the defendant was bv force of the statute liable to pav the sum therein prescribed. While the determination provided for by title 8 is denominated an order, it was a final determination of the matter, and, in effect, a judgment Whenever a motion admits of “ grave discussion and deliberation, and is made a part of the record in a cause, and subject to review in another court,” the decision by a court upon such motion is generally regarded as a final judgment or adjudication establishing an indisputable obligation on the part of the person against whom it is rendered, and the rule of res adjudicata applies. Dwight v. St. John, 23 N. Y., 203; Herm. Estop., §472, and cases cited in note 1. The general rule on the subject is that a former judgment of a court of competent jurisdiction is conclusive between the parties, or others claiming under them, upon the same matter directly in question in a subseq uent action or proceeding. “Such judgment or determination is final and conclusive, not only as to the matter actually determined, but as to every other matter which the parties might have been litigating and have had decided as incident to or essentially connected with the same subject-matter of the litigation, and every matter coming within the legitimate purview of the original action, both in respect to matters of claim and defense.” 1 Herm. Estop. § 411; Harris v. Harris, 36 Barb. 88; Bruen v. Hone, 2 id., 586 ; Embury v. Conner, 3 N. Y., 511 ; Haire v. Baker, 5 id., 357; Davis v. Tallcot, 12 id., 184; Hayes v. Reese, 34 Barb. 156 ; Clemens v. Clemens, 37 N. Y., 74; Dolan v. Mayor, 62 id., 475; In re Department of Parks, 73 id., 565; Mayer v. Mayor, 101 id., 288 ; Pray v. Hegeman, 98 id., 351, 358; Stowell v. Chamberlain, 60 id., 272,; Dunham v. Bower, 77 id., 76; Griffin v. Long Island Railroad Co., 102 id., 449; 2 St. Rep., 454; Campbell, P. P. & Manufacturing Co. v. Walker, 114 N. Y., 7 ; 22 St. Rep., 173. We are of the opinion that the defendant could not dispute her liability under the order, nor avoid a recovery for the amount prescribed, except, perhaps, by showing that she maintained her daughter in a manner approved by the overseer of the town or superintendent of the county, as provided by § 914, or by proving that she had paid the superintendent the amount prescribed by the order. As no such proof was given, we think the defendant was liable, and that the plaintiff was entitled to recover.

It is, however, contended by the respondent that the court of sessions had no jurisdiction or authority to make the order upon which this action is based, and the following grounds are stated as the basis for such contention:

(1) That the plaintiff had no right td maintain the action, except as given by § 920 of the Code, of Criminal Procedure; and he did not make a case according to the provisions of that section, because he did not prove that the defendant had neglected to relieve or maintain her daughter in a manner' approved by the officers mentioned in § 914.

(2) That the court of sessions which made the order was an inferior court of limited jurisdiction, and it was incumbent on the plaintiff to show that it acquired jurisdiction to make the order.

(3) That the order was void upon its face, as it did not show that the court of sessions had jurisdiction of the subject-matter, and there was no proof on the trial to show such jurisdiction.

(4) That it had no jurisdiction to make the order, because there was no proof that Sarah Walker was in the county when the proceeding was commenced or order made by the court of sessions, or that Mary Walker was legally bound to support her daughter, or that any application was made, as required by statute.

(5) That the order was void, because it gave no option to the defendant to support or pay.

The difficulty with the first ground of the defendant’s contention is that it does not appear to be sustained by the facts. The evidence disclosed not only that the defendant had paid no portion of the amount directed to be paid by the order since May 29, 1888, but that she had in no way supported, maintained, or provided for her daughter during that time. The second, third and fourth grounds of the respondent’s contention relate to the jurisdiction of the court which made the order. It seems to be settled that when proceedings have been had in a court of superior jurisdiction the presumption arises that it acted in accordance with the forms of law and the rules of practice governing it, and not until every prerequisite prescribed by law had been complied with, unless the contrary appears on the face of the record. The further presumption also arises that it possessed Jurisdiction of the subject-matter, that the parties were properly brought before it, that its powers were properly invoked by a suitable application made to it, that the process was properly served, and that the subject-matter was one it had authority to try. Brown, Jur., § 20a. See, also, Gosset v. Howard, 10 Q. B., 453; Potter v. Merchants' Bank, 28 N. Y., 656; Bosworth v. Vandewalker, 53 N. Y., 597; Wright v. Nostrand, 94 N. Y., 45. Hence, if the court of sessions was a court of superior jurisdiction, then the presumption was that all the proceedings necessary to give the court jurisdiction were had, and that the judgment oi; order was regular and valid. In the case of People v. Bradner, 107 N. Y., 1; 10 St. Rep., 667, it was held that the court of sessions is a superior court, and its jurisdiction is presumed. The principle of that case seems to be decisive, of the question. Nor do we think the respondent’s fifth ground valid. The order cannot be treated as void because it gave no option to the defendant to support her daughter or pay the amount provided. If it was irregular, or for any reason improper, the remedy of the defendant was by appeal, and the question of the irregularity or impropriety of the order could not be properly raised in this action. These considerations lead us to the conclusion that the trial court erred in nonsuiting the plaintiff, and that the judgment should be reversed.

Judgment reversed and a new trial ordered, with costs to abide the event.

All concur.