author: Parker, J. O’Briew, J.

text:
    Robert M. Curtiss, Resp’t, v. John C. Mott, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    Bbokebs—Contract—Compensation.
    A broker, who is merely authorized to make a sale of property at a price named, is not entitled to receive his commissions unless he secures a purchaser who is ready and willing to take the property upon the terms fixed by the owner. So held in a case where a broker procured a purchaser of real estate provided that the rents amounted to a certain sum, though the vendor represented that the rentals amounted to such sum.
    Appeal from a judgment in favor of plaintiff, entered on a verdict.

      Lemuel Skidmore, for app’lt; George J. Kilgen, for resp’t.
   Parker, J.

We do not see how this judgment can stand, although it may well be- that in this particular instance it works substantial justice. The plaintiff, as broker undertook to sell the defendant’s property at a fixed price, at a rate of commission agreed upon. Under the authorities of this state it was necessary for him, in order to earn his commissions, to produce a purchaser who should be ready and willing to purchase the property upon the would-be seller’s terms. This he did not do, but instead he brought a man who would have bought it at the seller’s terms provided the monthly rental at the time had been equal to that represented to him by the broker. How, if the broker had obtained the information as to the amount of the rentals from any other source than that of the intended vendor, it would not be pretended that he could recover commissions. But the jury have found, and therefore it must be taken to be true, that Mott, in response to an inquiry of him by the broker, stated the monthly rentals to have been $510, whereas they were in fact $488. It had rented at the larger figure, but at the time of the inquiry of the broker, as well as at the time when Mr. Philips concluded to take the property at Mr. Mott’s figures if it was rented at $510 per month, it was in fact renting at $488 per month. In the disposition of the case by the trial court it was assumed that it made no difference whether the representations were mistakenly made, and in good faith, or with full knowledge of their untruth; the position taken being that the representations made to the broker about his property formed a part of the seller’s contract with him. and, if any of such representations prove not to be true, and solely by reason thereof the broker fails to bring about a sale upon the terms of the seller, then the broker has performed his part of the contract, and is entitled to commissions as if the sale had actually taken place. Undoubtedly, the owner of property, wishing to sell, could make such an agreement with a broker, in which event he would be bound by it; but it has never been understood, nor has it been held by the courts, so far as we have observed, that a broker, who is merely authorized to make a sale of property at a price named, is entitled to receive his commissions unless he secures a purchaser who is ready and willing to take the property upon the terms fixed by the owner. The legal effect of the ordinary and usual broker's contract, such as this one, has been so long settled by the courts, and has become so thoroughly understood by men of business, that the courts should not lightly permit other conditions to be imported into it. French v. Light Co., 15 N. Y. Supp. 161; 39 St. Rep. 515, supports the positions we have taken that the plaintiff has not performed his contract, and, that being so, he is not entitled to recover commissions which can only be based upon its performance. Whether, in a proper action, this plaintiff could recover damages because of misrepresentations which prevented performance of his contract, we need not consider, as that question is not before us.

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

Yaw Bruwt, P. J., concurs.

O’Briew, J.

— I dissent, thinking the judgment should be affirmed.


source: Caselaw Access Project

author: Yan Brunt, P. J.

license: Public Domain

text:
    John Dohn, Resp’t, v. John Dawson et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    1. Negligence—Risk.
    A laborer, while lawfully on the sidewalk delivering material for a building, does not assume any risk of bricks falling on him from scaffolds erected and used by contractors.
    2. Same—Evidence..
    Where the court offers to permit the defendant’s counsel to show that there was a scaffold there at the time, a refusal to permit him to ask a witness the question “ had there been a scaffold erected on the outside of this building ? ” is not error.
    3. Same.
    The evidence, in this case, was held sufficient to sustain the finding that defendant’s workman let the brick fall and that it struck plaintiff.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      O. M. Earle, for app’lts; E. J. McGuire, , for resp’t
   Yan Brunt, P. J.

The defendants were masons, who had a contract from the city for the mason work of the Criminal Courts • building. There were at the same time many workmen employed by others having independent contracts with the city. • The plaintiff was employed by an independent firm of contractors, who were delivering terra cotta at the building. On May 8, 1892, the exterior walls of the building had been constructed to about the fourth story on the Franklin street side. In the face of the wall were spaces for windows. Inside the wall were scaffolds erected by the defendants for their workmen. On the date mentioned two of the defendants’ employes were engaged in building a scaffold above another scaffold, upon which were a quantity of bricks; the planking of the lower scaffold being taken out for the purpose of putting it upon the upper scaffold, and the workmen removing the bricks from the lower scaffold and placing them upon the upper scaffold as the wdrk progressed. One of these workmen heard a brick rattling down off the scaffold; and heard it strike something, but did not .know whether it went inside or out. In any event, he went to the window, and, looking out, saw the plaintiff, about fifteen or twenty feet from the corner of the building, holding his head. Another witness testified that he was a fellow workman of the plaintiff, and was unloading a truck, and the plaintiff was helping him to take off his load; that the plaintiff was not there more than a minute or two when something struck him on the head ; that the witness did not see the thing strike him, but when it struck it bounced on the ground, and the witness looked and saw that it was half a brick, or a little over. It was claimed upon the argument by the counsel for the appellants, and is claimed upon his brief, that there is evidence that there were plumbers at work upon this wall, who were cutting out brick, using cold chisels and hammer and tamping irons, with which to tamp oakum into a waste-pipe joint that they were cutting out. We have examined the case with care for the purpose of finding evidence that any plumbers were cutting any channel into this wall. The evidence in regard to the plumbers is that they were in a recess, putting in a waste-pipe, and that they had two cold chisels, a hammer, and a tamping tool, and were at work in a recess that sets in the building, and that they were calking. There is no evidence that they were cutting away any brick. The evidence in the case shows that the only persons who were working'with brick were these employes of the defendants who were moving this scaffold.

It is urged that it is not shown that the defendants were guilty of any negligence, and that it is purely a matter of inference that any brick fell because of any action of the employes of the defendant. This is undoubtedly true. But in the case of a murder, where a bullet is found in the body of the deceased, and the accused is shown to have pointed a pistol at the deceased and to have fired it off, it is only a matter of inference that the bullet came from the pistol. So in the case at bar we find that one of these workmen testified that a brick fell from the platform, and at about the same time the plaintiff was struck, and, although no one saw the impact of the brick, yet as it bounded from his head it was seen by another witness. It does not require a very great deal of inference to come to the conclusion, under evidence such as this, that the brick which was let fall by the defendants’ workmen was the one that struck the plaintiff.

It is further urged that the plaintiff took the risk of the. situation at the time. We are not aware that, being upon the sidewalk, he took the risk of any falling brickbats that might be carelessly dropped down upon his head by the employes of the defendants. He had the right to be upon the sidewalk. He was there attending to his work, and he had no reason to anticipate such carelessness upon the part of defendants’ employes.

It is urged that the plaintiff has not shown absence of contributory negligence, and that it cannot be inferred from the proof of the accident and of negligence on the part of the defendants. This is undoubtedly true, but the facts are shown, and the plaintiff has proved that he was where he had the right to be. He had no reason to expect, as already suggested, that brickbats would be showered down upon his head.

The exception to which attention is called in respect to the building of the scaffold on-the outside is untenable. The court said that it would allow the counsel to show, if he could, that there was a scaffold there at that time. That was all that it was bound to do. It was not bound to go through all the different steps which are necessary to be taken to erect a scaffold. The question was, Had there been a scaffold erected on the outside of this building?” It does not necessarily follow that, if a scaffold is once erected on the outside of the building, it exists forever. The question' was too indefinite, too remote, and clearly improper.

The verdict undoubtedly, was large, but we do not think it was so excessive as to call upon us to reverse the judgment. The judgment and order appealed from should be affirmed, with costs.

All concur.


author: Per Curiam.

text:
    Edison Electric Illuminating Company, et al., Resp’ts, v. William B. Riker, Impleader, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    Fraudulent conveyances—Gifts.
    The advancements made by the father to the son were held, in this case,, to be absolute gifts, and a transfer of property by the son to the father in payment was held to be fraudulent as to creditors.
    Appeal from a judgment entered in favor of the plaintiffs.

      George F. Martens, for app’lt; John J. Adams, for resp’ts.
   Per Curiam.

The evidence presented by this record is, with the exception of the . testimony of one witness, substantially the same as in the case of Comyns against Riker, which resulted in a judgment setting aside the transfer of certain property by William. H. Riker to William B. Riker, on the ground that it was fraudulent and void as against the plaintiff, because made with intent on the part of the transferror to hinder, delay, and defraud his creditors,' and was accepted by the transferee with notice of such intent. This court, on the appeal in Comyns’ Case, affirmed the judgment. 83 Hun, 473. On this review the evidence is substantially the same as in the Comyns' Case, with the exception of the testimony of William H. Riker, the transferror, who was not sworn in that case; and we shall inquire whether a different result than was then had is now required because of it. The learned judge at special term thought not, and we see no reason to disagree with him. It was shown on the former trial that the father, William B. Riker, by mortgages upon his property, given at different times prior to October 2, 1891, obtained about $71,000, which was turned over to his son ; and that the father transferred to his son his interest in the drug business in December, 1887, for $64,000, for which six notes of $10,000 each were given. On account of these notes and the moneys received from the mortgages the son claims there was an indebtedness due to his father on February 12, 1892, of about $120,000, while the father claims the amount to have been $128,000. The facts that such moneys were turned over to the son, and the father’s interest in the drug store transferred to him, were not in dispute on either trial, and to such extent the testimony of the son corroborates, merely, that of his father in the Comyns' Case, upon a point not disputed. The contention in that case wasj as it is in this one, not that the father did not turn over the mo.neys to his son, but that he did not loan them to him; that, instead, he intended them as a voluntary and absolute gift to his only child ; and that it was only when the business failure of his son seemed imminent that the plan developed of treating such advances as loans for the purpose of securing a foundation upon which to base a transfer of whatever of assets. the son had remaining, at the expense of his other numerous creditors. In support of the contention of the plaintiff that the money was intended by the father as a -gift to the son, who succeeded him in business, it was proved that from the year 1878 to June 5, 1887, the father loaned to the son, at various times, sums of money ranging from $200 to $4,400, aggregating $8,500; and that for each sum, when loaned, be took back the son’s note. It was not until December 15, 1887, that the father executed a bill of sale to his son of his interest in the business carried on under the firm name of William B. Eiker & Son, although be testifies that he had been previously out of the business. “ I had nothing to do. My son did everything, and took the entire profits for at least a year previous to my giving a bill of sale.” With this statement the son agrees. But after June, 1887, the former practice of the father in requiring the son to give him notes for moneys advanced was abandoned. According to the testimony of both father and son, the father borrowed $20,000 on mortgage in October, 1887, and immediately turned it over to the son. .When paid to the son, the money was all in bank notes, but the father did not take a note for it, nor a receipt. This statement is not contradicted by the son on this trial, and the further fact appears that no record or entry of these transactions was made by either father or son, and in that important respect the son’s testimony strengthens the evidence of the former trial on this subject. Then it appeared that there were no entries in the business books of the son. Now it appears that he never made an entry anywhere of the transactions. What we have said as to the absence of a note, receipt, or entry by either father or son as to the $20,000 is also true of the $5,000 turned over December 27, 1887, of the $8,000 on November 4, 1889, and the $14,000 paid over May 28, 1891. The father, in answer to an inquiry as to whether he kept any account between himself and his son during this period of time, said: “As a general thing, I kept no account. I may have, in these later years, a few little memoranda; but I did not, at the time that I loaned this large amount and down to the 12th of February, 1892, keep any account; not until the whole thing was paid.” The date given by the witness was some little time after the last payment, which he now claims to have been a loan to his son. It also appears from the testimony of the manager and bookkeeper of the wholesale firm, and from the testimony of the bookkeeper of the retail department, that the books contained no evidence of any of these transactions, and the son on this trial testified: “ I did not keep any account in any book with my father; none whatever. * * * I did not keep any account with him at all. I kept no entry of his indebtedness on any book.” In such important respect, therefore, the son’s testimony strengthens the evidence upon which the judgment was based in Comyn's Case. On that trial it also appeared from the testimony of a representative of Bradstreet’s Commercial Agency that in February, 1888, when, according to the father’s testimony, the indebtedness of his son to him was $93,500, the son stated that his total indebtedness consisted of a debt due the Sixth avenue store of from. $6,000 to $8,000, and on the factory account of $15,000 On this trial William H. Riker admits that he did make that statement. There are other features of the testimony, such as a failure at any time to demand payment by the father, the omission to pay interest, the swearing off of his personal assessment by William R. Riker, and his testimony in relation to it, in which he said : “I did swear off that I was not liable to personal tax, because what my son owed me I did not look upon in the light of a debt. 1 did not think of it. It was a different kind of a debt.” Rut such evidence and the weight to be attached to it, was considered by us in the Qomyns Case, leaving for consideration here whether the testimony of William H. Riker so far overcomes the evidence in the Comyns Case as to require a different conclusion. Our examination of it, to which brief reference only has been made, satisfies us that it is not of such a character as to justify this court in holding that the decision of the special term was against the weight of evidence. The judgment should be affirmed, with costs.


author: Follett, J.

text:
    Julia A. Shaw, Resp’t, v. Agnes Clare Bryant et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    1. Evidence—Handwriting—Comparison.
    A writing, introduced without objection, where admitted to be genuine, may be used for the purpose of comparison.
    8. Same—Documents introduced by adverse party.
    Exhibits, which are admitted to be genuine “to show signatures only,” may he used by plaintiff as standards of comparison for the same purpose.
    3. Same—Presumption.
    An exhibit, which the record does not show to have been introduced for a specific purpose, will he presumed, in absence of the exhibit, to have .been in evidence for all the purpose of the case.
    4. Infants—Recovery.
    Where two or more infants are members of the same family, the person who supports them is not hound to show precisely, as a condition of recovery against the estate, how much should he charged against each infant fop the ordinary expenses of food, clothing, etc.
    Appeal from a judgment rendered in favor of plaintiff.

      George Norris, for app’lt; Eseh Gowen, for resp’t.
   Follett, J.

This action was begun June 29, 1885, to charge the funds belonging to Agnes 0. Bryant and Amanda I. Bryant, infants, in the custody o£ the Farmers’ Loan & Trust Company, with the value of board and rooms furnished them, and for .money advanced and expended for necessaries; also to recover a judgment against Garolan ORvien Bryant for board and rooms furnished and money advanced to him. The action was tried before a referee, and a judgment recovered by the plaintiff, which was reversed. 65 Hun, 57 ; 47 St. Rep. 227. Afterwards the special term granted leave to serve an amended complaint, which order was affirmed. The infants became of age before the trial which resulted in the judgment under review, their estate was transferred to them, and the action was discontinued against the Farmers’ Loan & Trust Company. Carolan O'Brien Bryant is the father of Agnes C. Bryant and Amanda I. Bryant, who in 1882 were infants, Annie C. then being about fourteen and Amanda I. about thirteen years of age. The mother of the infants died before 1882. In March, 1882, the infants became entitled to §180,000 (§90,000 each) from the estate of John Anderson, the maternal grandfather. From 1880 to 1890 the plaintiff was the proprietor of the Grand Union Hotel, in the city of New York, and between June 17, 1882, and April 2, 1885, the defendants occupied rooms in and boarded at the hotel; and during a portion of that time the young ladies had a governess, who alsb roomed and boarded there, taking her meals w7ith the family. The referee found that the value of the board and rooms furnished the three defendants and the governess, together with the moneys advanced for the necessary support and education of the infants, was, over and above all payments, $15,-000, which was due April 2, 1885, no part of which has since been paid. It was established by Exhibit C, introduced by the plaintiff, and Exhibit No. 1, introduced by the defendants, that January 29, 1885, a settlement was had, and $1'5,270.43 was found due the plaintiff. The following is a copy of Exhibit C:

“C. O’B. Bryant, Esq., Guardian, to Grand Union
Hotel, Dr.
1884.
Dec. 31. To amount of account as rendered. $6,565 56
1885.
Jan. 7. meals and room 1 week..., $82 95
14. U U Li (Í 75 25
21. 6Í U U 84 25
28. U U U 79 70
29. a u day. 10 14 332 29
$6,897 85
29 days’ int. on ac’t to Oct.
29, ’84........ §8,168 75
§34 90
26 days’ int. on
Nov. account... 407 40 1 47
$35 37
11 99 24 38
$6,922 23
1884.
Dec. 31. To amt. of cash acc’t rendered.. $8,216 34
1885.
Jan. 29. “ 29 days’ int. on
acc’t to Dec. 1 ’84. $7,886 17 31 56
“ cash............ 100 00
“ 22 days’ int...... 100 30 8,348 20 30.
$15,270 43
“New York, Jan. 29, 1885.
“ I have examined the above bill, and find it correct, and approve the same. The charges therein were for supplies and maintenance of my two children,.Agnes 0. and Amanda I. Bryant, for whom I am the general guardian, and were furnished under and by my direction. The moneys therein advanced were for the same purposes. Oarolan O’B. Bryant, (Guardian.
Defendants’ Exhibit No. 1 is a duplicate of plaintiff’s Exhibit 0, except there was indorsed thereon the following:
“ Copy signed and approved by 0. O’B. Bryant,' guardian.
J. E. Shaw.”
Mr. Bryant testified that this indorsement, including the signature, was written by James E. Shaw.
April 2', 1885, when the defendants left the plaintiff’s hotel,. another settlement was had, as shown by defendants’ Exhibit No. 3, of which the following is a copy :
“ 0. O’B. Bryant. Esq., (Guardian, to (Grand Union Hotel, Dr.
1885.
Feb. 17. To balance as rendered.................$15,327 66
April 2, 1885, add 44 days at 5 percent.. 93 67
April 2. Difference of interest of 1 per cent, on int.
paid at 6 per cent., viz.: 450—1.6....... 75
$15,496 33
Feb. 4. To meals and room as rendered... $77 45
Less Jan. 29, included in previous
bill,......................... 10 14
$67 13
Feb. 11. Meals and room 1 week......... 75 00
“18. “ “ “ 76 40
“ 25. “ . “ “ 76 45
Mch. 4. “ “ “ 71 72
“11. “ “ “ 7 00
“18. “ “ “ 7 00
“25. “ “ “ 7 00
Api. 1. “ “ “ ......... 7'00
“2. “ “ “ Id......... 1 395 88
$15,892 21
.“New York, April 2nd, 1885.
“ Received from Carolan O’B. Bryant his check for eight hundred and ninety-two'21-100 dollars on account oí the above bill, leaving due on April 2, 1885,' of fifteen thousand dollars. $15,-000.00.
“[Signed] ' Julia A. Shaw.
“By James E. Shaw, Atty.
“Or. (Adjusted and Deffrd.).
By amount deferred interest acct. computed
to Jan. 1, 1888.....................$8,402 00
By tax lease settlements, loan and purchase com. acct. as rendered and adjusted, not
to exceed.......................... 6,508 00
-$15,000 00”
By whom and when the words beginning with the abbreviation *“ Or.” and ending with “$15,000” were written, was a disputed question. Carolan O’Brien Bryant testified they were written by one of the plaintiff’s clerks. The sum represented by this statement—$15,000—was the amount for which the referree rendered a judgment against the defendants. An accord and satisfaction of this admitted amount was not pleaded as a defense in the original answers, but July 23,1886, James E. Shaw, plaintiff’s husband and agent, died, and in the amended answers filed February '25, 1893, the defendants pleaded an accord and satisfaction entered into with him on or about April 2, 1885. To establish this defense the defendants put in evidence a statement of account marked “Exhibit No. 2,” of which the following is a copy:
“C. O’B. Bryant, Esq., Guardian, to Grand Union Hotel, 1885. Dr.
Jan. 29. To amount of acct. as rendered.......... $15,270 48
Feb. 17. Add 19 days interest 5 per cent.. $ 40 30
Difference of int. of 1 per
ct. paid at 6 per ct.. $230 00
' “ “ “ “ 450 00
“ “ “ “ 1,044 17
1.6 of $1,724 17 287 36 327 66
Feb. 17. By check for.
Or.
$15,598 09 270 43
$15,327 66
“Credits Balanced and Deferred.
“0. O’B. Bryant in Account with Julia A. Shaw.
1885. Dr.
Jan. 29. To bal. due Gr’d U. Hotel
cert, as.......... .....$15,270 43 $15,000 00
Feb. 17. By credits accrued and accruing deferred to final payment of mortgages, June 1,
1888, as adjusted____.... $15,000 00
Difference cash, $270.43 balance deferred as above, $15,000 to end of term $15,000 00
Balance and closed without recourse to
new acct. remainders............. $327 66
“Satisfaction herein acknowledged and duplicate exchanged in release of all claims and accounts. Difference.in interest adjusted cash, signed and witnessed in each other’s presence. One dollar consideration received in hand, New York, Feb. 17, 1885.
James B. Shaw, Atty.’.’

Mr. Bryant testified that this exhibit was in the handwriting of one of plainitff’s clerks, down to and including the figures “$15,-327.66,” and that from that point down to the figures “327.66” the exhibt was in his handwriting. He testified that the paragraph beginning with the word “satisfaction" and ending with the figures. “1885” was written by “some of Mr. Shaw’s people,” but he did not know by whom. He also testified that the signature “James B. Shaw, Atty.,” was written by Mr. Shaw, and' that he (Bryant). saw him write it. Whether the signature to the above receipt was genuine or forged, and whether the paragraph preceding the signature was written by Carolan O’Brien Bryant, were sharply contested issues on the’ trial, and the referee found that the signature was a forgery. It is asserted that this finding is contrary to the weight of evidence. After examining the original document, reading the evidence, and considering the circumstances, we are satisfied that the learned referee correctly determined this issue. In his opinion he said:

“ The referee does not entertain the slightest doubt that the exhibit offered on behalf of the defendants, as to which such a warm controversy arose, and such voluminous éxpert evidence was introduced upon the trial, was not in fact signed by Mr. Shaw. Under these circumstances, it is not necessary to proceed any further, either to characterize the instrument as a forgery, or to attempt to declare who perpetrated such forgery. It is enough to find, as has been done, that the receipt was not signed (By Mr. Shaw, and was not the act or deed of the plaintiff.”

In this we concur.

As before stated, the issue whether the signature of “James B. Shaw, Atty.,” to defendants’ Exhibit No. 2, was genuine or forged, was sharply contested on the trial, and so was the issue whether the paragraph immediately preceding the signature was or was not written by Carolan O’Brien Bryant. The plaintiff undertook the burden of showing that the paragraph and signature wers both written by him, and, to support her contention, experts, in handwriting were called and comparisons instituted between signatures of James B. Shaw, shown to be genuine, and the one in dispute, and comparisons were also instituted between a writing of Carolan O’Brien Bryant, admitted to be genuine, and the disputed satisfaction and signature thereto. The counsel for the defendants insists that the referee erred in permitting comparisons of the latter kind, and in allowing one of the experts to testify to similarity between the challenged paragraph and the document written by Mr. Bryant, and marked “Exhibit U.” Chapter 36 of the Laws of 1880 provided :

“Section 1. Comparison of a disputed writing, with any writing proved to the satisfaction of the conn to be genuine, shall be permitted to be made by witnesses in all trials and proceedings, and such writings and the evidence of witnesses respecting the same may be submitted to the court and jury as evidence of the genuineness, or otherwise, of the writing in dispute.

Sec. 2. This act shall take effect immediately.”

In Peck v. Callaghan, 95 N. Y. 73, it was held in 1884, that the statute did not authorize a comparison of an alleged forged signature with the writing of the alleged forger, which was followed in Bruyn v. Russell, 52 Hun, 17; 22 St. Rep. 374. For the purpose of obviating the effect of the first decision, and enlarging the scope of the statute, chapter 555 of the Laws of 1888 was enacted, which provides:

“ Section 1. Section two of chapter thirty-six of the Laws of eighteen hundred and eighty, entitled ‘ An act to amend the law of evidence and practice on civil and criminal trials,’ is hereby amended so as to read as follows: Sec. 2. Comparison of a disputed writing with any writing proved to the satisfaction of the court to be the genuine handwriting of any person, claimed on the trial to have made or executed the disputed instrument, or writing shall be permitted and submitted to the court and jury in like manner. But nothing within contained shall affect or apply to any action or proceeding heretofore commenced or now pending.

“ Sec. 2. This act shall take effect immediately.”

It is asserted that the act of 1880 was superseded by the act of 1888, and that the saving clause of the latter act takes the case at bar, which was begun June 19, 1885, out,of that act, and that the rules existing prior to 1880 in respect to the comparison of handwriting are applicable to this case. In determining whether the latter act supersedes the former one, it should be observed that section 2 of the act of 1880 simply provides, “ This act shall take effect immediately,” and it is this section, instead of section 1, which is amended by the act of 1888. See, also, Mortimer v. Chambers, 43 St. Rep. 365. But, admitting that the rules of evidence existing prior to 1880 are applicable to this action, the defendants’ contention cannot be sustained. Before the passage of the first statute it was the rule in this state that comparisons might be instituted between the disputed signature and other writings shown to be genuine, and admitted as evidence in the case upon the issues involved, and not solely for the purpose of comparison. Exhibit U, which the defendants admitted • was written by Mr. Bryant, is not contained in the record. It is referred to at several' places, but no statement of its contents is given. At page 690 it is referred to as follows: “Exhibit IT.IT. P. W., Referee. (The original exhibit shall be referred to and handed up on argument.)” It was not handed to the court on argument. The counsel for the defendants insists that Exhibit II. was admitted in evidence as a specimen of Garolan O’Brien Bryant’s handwriting, for the sole purpose of comparison, and refers to folios 1043 and 1045 to sustain the contention. Garolan O’Brien Bryant was under cross-examination, and the following occurred:

“ M-r. Shoudy: I want to offer the paper marked 1 Exhibit U. for identification. I only offer so much as in his handwriting. By Mr. Morris: Q. Are these pencil marks in your handwriting? Mr. Shoudy: I do not offer the pencil marks. A. That is my handwriting. I mean the pencil. Q. How is there, at the termination of the paper, June, 1884.—In whose handwriting is that? Turn over to the last page of the paper. A. There is a memorandum here of ‘June, 1884.’ Q. Do you know whose handwriting it is ? A. It is like Mr. Shaw’s. Q. It is certainly not yours ? A. No, sir ; it is not mine. Q. Are there any other marks on that paper, not in your handwriting, than you have already mentioned? A. No, ,sir. Q. Look it over. A. Here are marks on here and pencil interlineations that I had nothing to do with. The Referee: In so far as the paper exhibits the handwriting of the witness, it is received in evidence, and marked ‘"Exhibit U.”’

Turning again to the part of the record where about 200 exhibits are printed, we find (folio 2083) that it is stated that Exhibit Z and Exhibits Z, 1, 2, and 8 were introduced “for comparison of handwriting,” and are not printed. Again, at folios 2089 and 2090, it is stated that Exhibits 23 and 26 were introduced bv defendants “to show handwriting,” and that defendants’Exhibits Nos. 1 to 93 were introduced “to show signatures only,” but we find no such statement in respect to Exhibit U. This case was made up by appellants, and the burden of showing error is upon them, and we cannot presume from this record, and in the absence of the exhibit, that it was introduced in evidence solely for the purpose of comparing Oarolan O’Brien Bryant’s handwriting with the last paragraph and signature of Exhibit No. 2. In Miles v. Loomis, 75 N. Y. 288, which arose before the statute of 1880, it was held that:

“ Where the instruments, the signatures to which are thus compared, were, for aught that appears in the case, offered in evidence for other purposes than comparison, and were received without •objection, it cannot be objected upon appeal that they were immaterial for any other purpose, and so could not be used for comparison. Having been received without objection, they must be regarded as property in evidence for all the purposes of the case.”

By referring to what occurred when Exhibit II was offered in evidence, it will be seen that the defendants' counsel did not object to its admission. Under this state of facts, and the authority last referred to, we must assume that Exhibit U was received in evidence without objection, and not solely for the purpose of instituting a comparison of handwritings. Exhibit U having been properly received in evidence, it was competent to institute a comparison between it and the' disputed release and signature thereto. The plaintiff undertook to establish affirmatively that the release which forms a part of defendants’ Exhibit No. 2 was in the handwriting of Oarolan O’Brien Bryant. This was a distinct and relevant issue, which the plaintiff had a right to tender and try, and it was competent to show a similarity between the handwriting of the release and of Exhibit U. Pontius v. People, 82 N. Y. 339. In the case last cited the defendant was convicted ■on an indictment charging him with having assaulted, with intent to kill, John G. Hosier. Promissory notes purporting to be signed by Hosier were found in defendant’s possession, which it was alleged were forged by him. These notes and some of defendant’s books of account were admitted in evidence without objection, and the jury, over defendant’s objection, were permitted to compare defendant’s handwriting in his books of account with the notes purporting to be signed by Hosier, which ruling was sustained by the court of appeals. If the ruling ■contended for by the appellants’ counsel in the case at bar were the correct one, as applied in cases not within the statute of 1888, •it would 'have been competent only to have compared the genuine writing of John G. Hosier with the signature purporting to be his. Before the statute of 1880, documents written by a party to an action, and admitted in evidence on the issues, or without ■objection, might be compared with any signature or writing which it was alleged such party wrote. Peck v. Callaghan, supra, is not an authority to the contrary. That case rose over the genuineness of the signature of a testator to a will. The contestant offered in evidence the genuine writings of. a third person solely for the purpose of instituting a comparison between those writings and the signature alleged to have been testator’s. The admission in evidence of those writings was objected to, and they were excluded, which ruling was sustained ; but it was not held that if the writings had been introduced on the issues in the case, or without an -objection, the comparison could not have been instituted.

The counsel for the appellants urges that it was error to permit witnesses to use ninety-two or ninety-three checks signed by James E. Shaw as standards of comparison. The genuineness of these •checks was established by Mr. Bryant on his cross-examination, at page 280 etseq., and were marked for identification. The appellant’s counsel says in his brief that these checks were never offered in evidence in behalf of the plaintiff, but were used as standards for the comparison of handwriting. At page 697 of the ■case the following appears:

“Defendants’ Exhibit No. 26, T. P. W., referee, introduced to ■show handwriting, and shall be produced and referred on argument. Exhibit Checks. No. 1-93, inclusive, were introduced to show signatures only. They shall be produced on argument, and and may be referred to.”

Thus the case shows that these checks were introduced by the defendants for the very purpose for which they were used. No error prejudicial to the appellants was committed in admitting or rejecting evidence upon the issue whether the contested part of Exhibit No. 2 was in the bandwriting of Carolan O’Brien Brvant.

The young ladies were not sworn on the trial, and neither they nor the father contested the correctness of the claim as presented, ' and the only defense sought to be established on the trial was payment. But it is urged that the referee erred in not ascertaining the amount for which each of the defendants was liable upon legal principles. It is insisted, that the referee should have found how much each defendant was indebted for rooms, and how much each defendant was indebted for meals. It is. also asserted that the young ladies should each pay one-half of the charges for the governess, and no part should be charged against the father. It appears that, during all of the time the defendants occupied rooms at the hotel, they lived together as a family, occupying during much of the time two bedrooms and a parlor, which were used in common by all. The hotel was kept on what is known as the “ European plan.” The defendants usually took their meals together, making a single order for the three; and if guests were there, all were included in the order, and the total amount of it was charged to the account. It is quite apparent, we think, that it is impossible to determine just how much, under the circumstances, each of the defendants should be charged for the rent of rooms and how much each should be charged for meals. There is no way of knowing what portion of the food ordered each of the defendants and governess devoured, and to require such particularity'of proof as a condition of recovery will defeat the entire claim, the justness of which is not disputed, the question of payment being out of the way. The referee found that the value of the rooms occupied during the period mentioned was $5,5.88.12,. and that, considering the circumstances under which they were occupied, each defendant should be charged with one-third thereof. The father of the infants asserts that it was error to charge him with any sum on account of the board and room furnished the governess. This is undoubtedly true, provided he did not assume any liability, nor order the room or meals for her. How many meals she ate, and how much each meal was worth, cannot now be ascertained, the items eaten by each person not being disclosed by the tickets sent to the cashier’s desk. The father did not testify, though examined at great length, whether or not he agreed to pay all or any part of the charges for the meals and room furnished for the governess. The plaintiff seems to have acted as banker and paymaster for these defendants, and when bills for clothing, education, carriages, and such bills as are usually incurred by such families, were brought to the hotel, they were paid by the plaintiff and charged to the accofint. Many of these bills disclosed that they were for some one of the defendants, and in such cases the referee has charged those bills to the separate account of each. A judgment was ordered and entered against Amanda I. Bryant for $5,349.99, against Agnes 0. Bryant for $5,-534.10, and against Oarolan O’Brien Bryant for $11,291.42, by which no injustice was done, so far as we can learn from the record except in a few instances where, by oversight, a few. items were charged to one defendant that should have been charged to another, as is conceded and pointed out by the learned counsel for the plaintiff in his brief. Neither of these items, nor the apportionment, is challenged on this appeal by the defendants. During the period that the defendants were at the plaintiff’s hotel the father represented that he was the general guardian of the infants, having the care of their persons and estates. He described himself as such in several documents,-but in truth he never was their general guardian. This ease has been twice tried at great length before different referees, and every, opportunity has been given the defendants to challenge the items of the account, and to show how the whole sum admitted to be just should be apportioned among them, but neither defendant has offered any testimony upon this issue, and we are of the opinion that the principle upon which the referee rendered his judgment cannot now be successfully gainsaid. It has been held, and we think rightly, that when two or more infants are members of the same family the person who supports them is not bound to show precisely, as a condition of recovery against the estate, how much should be charged against each infant for the ordinary expenses of food, clothing, etc. Shepard v. Stebbins, 48 Hun, 247; 17 St. Rep. 900; Hyland v. Baxter, 42 Hun, 9 ; 5 St. Rep. 219; In re Rolph's Estate, 29 St. Rep. 64.

This rule, as applied to this case, is not in conflict with the judgment of this court when this case was first before it. 65 Hun, 57; 47 St. Rep. 227. The referee on the first trial divided the claim into three parts, and entered judgment against each of the defendants for one-third. It was said in the opinion that the referee made an arbitrary decision. Such was not the determination of the referee on the present trial. The amount for which each defendant was held liable was founded on evidence which we think supports the decision.

The learned counsel for the respondent makes the following concessions in his points. There are some of the items which will plainly need correction by this court

The following items should be deducted from the joint account of Agnes and Amanda Bryant, and added to the charge against Carolan O’B. Bryant, there being no proof that the expense was incurred for the use or benefit of the children : a

Dec. 12, 1883. Voucher K74a, page 628............... $200

Jan. 8, 1884. Charge for “appraisement,” no voucher.. .. 20

Jan. 9, 1884. Voucher K81, page 632................. 487

Feb. 2, 1884. Voucher K90, page 639................. 25

Feb. 29, 1884. Voucher K104, page 647___............. 50

June 11, 1884. Voucher- K150, page 669................ 28

July 31, 1884. Voucher K163, page 675 ................. 150

Nov. 10, 1884. Voucher K166, page 679................ 25

The following items should be deducted from the family account, and charged to Carolan O’B. Bryant alone to wit:

July 26, 1883.

Voucher K10, page 595, should be deducted from the hotel bill, the item for “ wine and bar .................. $9 00

July 30, 1883.

Voucher Kll, page 596,“Barnun’s Hotel,” there being no proof that it was for the family................. 150 00

June 3, 1883.

Voucher K12a, page 597, should be deducted for wines, etc....... 2 20

Aug. 4, 1883.

Voucher K14, page 508, should be deducted, wines, $17 40; cash $25 00,—■ making........................... 42 40

May 14, 1884.

Voucher K139, page 665, there being no proof that the books were for the family............................250 00'

The following item should be deducted from the charge against Amanda Bryant, and added to the charge against Agnes, it being clearly a clerical mistake:

Feb. 20, 1884. Voucher K102, page 645............$112 90

These clerical errors are not pointed out and complained of by the counsel for the appellants.

The judgment entered in this action should be modified in accordance with the concessions above stated, and as modified affirmed, without costs to either party.

O’Brien, J., concurs; Van Brunt, P. J., concurs in result.


author: Parker, J.

text:
    James Bradley, Admintstrator, etc., Resp’t, v. Second Avenue Railroad Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November, 15, 1895.

    1. Negligence—Question for jury.
    The evidence, in this case, was held insufficient to authorize the jury to-find that the defendant’s servant was guilty of negligence in applying the break so suddently and sharply as to cause plaintiff’s intestate to be hurled from, his position on the platform.
    2. Same—Contributory.
    Where passengers on a street railroad car, without reasonable cause, leave the car orplace themselves on the outside of it, when in motion, they assume the hazards of so doing.
    3. Same.
    A passenger, who leaves an absolutely safe, place to go into one more . hazardous at all times, is guilty of contributory negligence.
    Appeal from a judgment, entered on a' verdrct in favor of plaintiff, and from an order denying a motion for a new trial.'

      Pciyson Merrill, for app’lts; Summer B. Styles, for resp’t.
   Parker, J.

On the evening of January 28, 1895, plaintiff’s intestate boarded one-of defendant’s cars on Second avenue, near Twenty-Seventh street. Although there was ample room for him on the inside of the car, he wetit out on tile front platform, and there remained standing until the car reached Sixty-Third street, when he fell off, was run over, and received such injuries that he died about a week later. The theory of the plaintiff upon the trial was that the defendant was guilty of negligence causing the injury, in that the driver, without necessity for it, so suddenly applied the brake as to cause the car to give a violent jerk, which had the effect of hurling plaintiff’s intestate over the dashboard. The only evidence in support of this position was given by the witness Carroll, who testified that he was riding in the car, and that, “just about Sixty-Third street, this here driver, it was just as if he put the brake on, and then he let the brake out, and the car gave a good jerk; — what I would call a good one, anyhow; and after that I seen this man going over the dashboard. I seen him myself.” While the witness says he saw the intestate going over the dashboard, he does not testify that he saw the driver apply the brake, but asserts, instead, that the jerk which he experienced seemed to him as if the driver had put the brake on, and then let it off. Again he describes the jerk in the following language : “It was just as if there was a rock or something on the car track, or anything like that." We do not think this evidence was sufficient to authorize the jury to find that the defendant’s servant was guilty of negligence in applying the brake so suddenly and sharply as to cause plaintiff’s intestate■ to be hurled from his position on the platform.

We are also of the opinion that the plaintiff failed to sustain the burden resting upon him, of proving that plaintiff’s intestate was free from contributory negligence, within the principle established in the following cases: Clark v. Railroad Co., 36 N. Y. 135; Hayes v. Railroad Co., 97 id. 259; Connolly v. Knickerbocker Ice Co., 114 id. 108; 22 St. Rep. 675; Coleman v. Second A. Railroad Co., 114 N. Y. 612; 24 St. Rep. 566; Cassidy v. Atlantic Ave. Railroad Co., 9 Misc. Rep. 275 ; 61 St. Rep. 149. This is not a case where plaintiff’s intestate, by reason of the crowding of the car, was obliged to go upon the front platform. On the contrary, it conclusively appears that there was plenty of room on the inside of the car. No one was standing up in the car, and he could have had a seat, had he chosen to take one. Instead, he passed out upon the front platform,—a place obviously more dangerous at any time than the inside of the car, but especially so on this occasion, in'view of the slippery condition of the tracks, the storm, and the darkness, which made it probable that sudden stoppages of the car would occur. It was a cold night, the thermometer being only twenty degrees above zero; the tracks were icy and slippery; and it was snowing steadier during all of the time that he was upon the car. To the situation we have described, the language of the court in Coleman v. Railroad Co, supra, applies:

“The seats in railroad cars are provided for the-passengers to occupy. If, without reasonable cause, they leave the car, or place themselves on the outside of it, when in motion, they assume the hazards of so doing. ”

But in that case the plaintiff offered as an excuse that the seat which he occupied became so crowded as to render it uncomfortable for him to remain in it, and so he stepped down upon the step, which ran lengthwise of the car, for the purpose of going forward to take another seat, and while doing so was injured, and it was held that from this evidence the conclusion was permitted that he had reasonable cause for leaving his seat to obtain another. And continued the court, “ it is upon that assumption that he may be relieved from the charge of contributory negligence.” If in this case the car had been crowded so that it became necessary for plaintiff’s intestate to go upon the platform, there would have been permitted an excuse which would have made it a question for the jury whether he was free from contributory negligence. But the facts show no excuse whatever. He left an absolutely sale place to go into one more hazardous at all times, but especially so on the occasion in question. And it was necessary for plaintiff to prove something more than this act of carelessness in order to authorize a jury to find that the plaintiff had sustained the burden resting upon him, of showing that he was free from contributory negligence. The judgment should be reversed, with costs to the appellant to abide the event. ^

All concur.


text:
    Edith Mason Faxon, Resp’t, v. John Mason et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    1. Appeal—Party agrieved.
    Upon the setting aside of a fraudulent assignment, the assignor cannot object to an order directing the payment of the money, which is the proceeds of the property assigned, by the receiver, on the ground that it provides for the commitment of the receiver for contempt upon his failure so to do.
    3. Assignment for benefit of creditors—Counsel fees.
    A fraudulent assignor cannot effectually insist that his innocent assignee shall be deprived of disbursements incurred in good faith, in the performance of his duty under the assignment.
    3. Same.
    In such a case, the assignor may attack the allowance to the assignee for disbursements for attorney fees, as excessive, though plaintiff, who was entitled to have all the property assigned applied on his judgment against the assignor, consented to the allowance.
    4. Same—Attorney fees.
    An allowance to an assignee for attorney fees,, based on the uncontradicted affidavit of the attorney rendering the services as to their value, will not be set aside as excessive.
    Appeal from an order directing the receiver to pay over . moneys in his hands.

      Franklin Bien, for app’lt; Howard A. Taylor, for resp’t Faxon; Henry A. Forster] for- resp’t Ball.
   Parker, J.

The appellant, Mason, made a"general assignment for the benefit of his creditors to the defendant Ball, June 21, 1892. Subsequently this action was brought to set aside the assignment, on the ground that it was fraudulent and void as against creditors, and it resulted in a judgment in favor of the plaintiff, by which judgment a receiver was appointed, to whom the assignee, Ball, was directed to pay over the moneys in his hands, amounting to $26,234.85. Thereafter such judgment was affirmed by the general term of this court, and later the plaintiff moved the' court that the receiver pay over to her the moneys in his hands. It resulted in an order that the receiver retain his commissions and disbursements, which were fixed at the sum of $1,348.81; that he pay to the assignee or his attorneys the sum of $3,000; and that he pay over the balance, amounting to $22,239.46, to the plaintiff. From that order the defendant Mason, who was the assignor in the assignment which was set aside by the j udginent, alone appeals.

He objects to so much of the order as provides “ that, in case nny of the payments be not made as herein directed after personal demand, a warrant of commitment issue, pursuant to section 2268 ■of the Code of Civil Procedure.” We cannot see that he is in a position to attack this provision of the order, for he is not affected by it in any way. The receiver, against whom this part of the order was directed, would, undoubtedly, have had the right to call it in question, and to have insisted that, before the court could make any adjudication whatever in the matter of contempt, a demand should be made upon him to pay over the money directed by the order of the court to be paid. But the receiver does not appeal, and, as none of the other parties are aggrieved, they have no standing to call it in question.

His next objection is that, the assignment having been set aside, the assignee was not entitled to the disbursements incurred for counsel fees made by him after the action was brought to set aside the general assignment, and therefore that part of die order directing the payment of $3,000 to the assignee or his attorneys was error. This position the plaintiff could, perhaps, have successfully taken, in view of the authorities which hold that a successful creditor, in an action to set aside an assignment on the ground of fraud, obtains a lien on the whole fund in the assignee’s hands, which is superior to the assignee’s claim for compensation. Dorney v. Thacher, 76 Hun, 361; 59 St. Rep. 443; Dexter v. Adler, 76 Hun, 439; Mayer v. Hazard, 49 id. 222; 17 St. Rep. 26. But the plaintiff, instead of making objection, consented to it, and the question which the appellant presents, therefore, is whether the fraudulent assignor can effectually insist that his innocent assignee shall be deprived of disbursements incurred, in good faith, in the performance of his duty under the assignment. This question must be answered in the negative; for, while the assignment may be fraudulent and void as against creditors, it is good as against the assignor, and the good-faith assignee, who accepts and undertakes the execution of the trust created by the assignment, is entitled to protection as against the assignor.

Whether there was sufficieút evidence before the court to justify that portion of the order which fixed the amount of his disbursements at $3,000 constitutes the remaining question. The position of the respondent Ball that because the plaintiff would have been entitled to receive, under her judgment, such portion of the amount as should not have been awarded to the assignee, therefore her consent deprived the assignor, Mason, of any standing to make objection, is not well taken. Mason was entitled to have every dollar used in reduction of the plaintiff’s judgment which was properly applicable thereto, to the end that his liability thereon should be, to such extent, reduced. His claim ■of right to resist an improper allowance to the assignee for disbursements is therefore well grounded. As a basis for an adjudication by the court upon the question of disbursements, there was presented the affidavit of the assignee, Ball, giving a detailed account of the progress of the litigation to which he was a party, together with the affidavit of one 'of his attorneys, reciting the character and extent of the work performed by them as counsel to the assignee, the value of their services, and the amount which they had received from the assignee on account. The assignor, Mason, appeared by his attorney, who also filed an affidavit made by himself, but he did not therein question the value of the services of the counsel for the assignee. Nor does it appear from this record that any evidence whatever was offered by Mason or his attorney challenging the affidavit of Ball’s counsel as to value. In view, therefore, of the evidence before the court on the motion touching the subject of compensation of counsel, it was fully justified in fixing the amount at $3,000.

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

All concur.


text:
    The People, ex rel. George J. Gould et al., as Executors, App’lts, v. Edward P. Barker et al., as Commissioners, etc., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    Taxes—Assessment against executoe.
    An assessment against the executor of an estate, before the probate of the will, is valid.

      Certiorari to review the action of the commissioners of taxes and assessments of the city of New York, in assessing personal-property of decedent’s estate for the year 1893.
    The proceeding was brought pursuant to Laws 1880, ch. 269,. to review an assessment of personal property made against George-J. Gould, Edwin Gould, Helen M. Gould, and Howard Gould, as executors and trustees under the will of Jay Gould, deceased, for the year 1893, in the sum of $10,000,000. The petition upon which the writ of certiorari was granted avers that the assessment, was illegal and void for three reasons: First, that at the time the assessment was made, to wit, on the second Monday of January, 1893, being the 9th day of that month, the will of decedent had not been admitted to probate, nor had letters testamentary been granted; second, that at the time when said assessment was made, relators had not, in’ contemplation of law, in their possession or under their control as executors or trustees, or as both,any personal estate of or formerly belonging to the said Jay Gould; third, that, at the time when the assessment was made, neither the relators nor any of them had actually or in fact in their possession or under their control any personal estate formerly belonging to the late Jay Gould; nor did they or any of them attempt to take the same into their possession or exercise or attempt to exercise any control over or in respect thereto, except as stated in the ■statement made by George J. Gould to the tax commissioners on the 22d day of May, 1893.

      Dillon & Hubbard, for app’lts; Jas. M. Ward, for resp’ts.
   Per Curiam.

Upon the statute, as construed in the case of People v. Commissioners of Taxes, etc., 31 Hun, 235, in which we concur, the order appealed from should be affirmed, with costs.


author: Van Brunt, P. J.

text:
    John C. Fogg et al., App’lts, v. Suburban Rapid Transit Company, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    1. Contracts—Conditions precedent.
    A provision, in a building contract that the contractor shall show that all materials furnished by him are free from mechanic liens before the final payments shall be made, is a condition precedent.
    2. Same—Performance.
    Where a plaintiff fails to allege or excuse the performance of a condition precedent in a contract, the defendant may show a breach of suph condition without having pleaded.it.
    3. Same—Waiver.
    The defendant, in an action for money due under a contract, does not waive a condition precedent by pleading payment.
    Appeal from a judgment dismissing the complaint.

      L. J. Morrison, for app’lts; Brainard Tolies, for resp’t.
   Van Brunt, P. J.

This action was brought to recover for work, labor, and services, and materials furnished by the plaintiffs to the defendant. Three causes of action are set out,—one, for work, labor, and services, and material furnished under and pursuant to a written contract entered into between the plaintiffs and the defendant; the second and third for extra work.

The plaintiffs, as part of their case, introduced in evidence the contract between the parties, which prpvided for the performance of extra work, and also contained the following provision:

“ The party of the second part further agrees that he will present to the party of the first part satisfactory evidence that all just liens, claims, and demands of the employes of the said party of the second part, or of parties from whom materials used in the construction of the work may have been purchased or procured, are fully satisfied, aud that the materials and work done under this agreement are fully released from all such liens, claims, and demands before said party of the second part will demand or shall receive the sums due on final payment under this agreement.”

The plaintiffs also gave evidence of the performance of work and of the supply of materials. At the end of the plaintiffs’ case, the defendant moved to dismiss the complaint, upon the ground that the plaintiffs had not complied with the condition of the contract above quoted, and had never presented any evidence upon the subject mentioned therein. This motion was denied. The defendant thereupon proceeded to prove that mechanics’ liens existed against the work in question and the money to become due thereon, which evidence was objected to upon the part .of the plaintiffs, upon the ground that it had not been pleaded, and the plaintiffs had had no opportunity to meet it. After certain evidence of this kind had been given under the said objections, the defendant rested, and the court dismissed the complaint, but not upon the merits. From the judgment thereupon entered, this appeal is taken.

It is evident from the nature of the record that the court dismissed the complaint because of the existence of the mechanic’s lien of which evidence had been given. It is urged that this was error, because no such defense was set up in the answer, and the admission of the evidence in question was therefore erroneous. It may be true, if it had been necessary to set up any such defense in the answer, it would have been error to have admitted the evidence. But we think that the court would have been justified in dismissing the complaint, unless affirmative proof was offered upon the part of the plaintiffs of compliance with the condition of the contract above mentioned.

It is urged that this condition of the contract was not a condition precedent, and that the defendant, not having pleaded the breach thereof, was not in condition to prove it. But, by the express phraseology of the provision, it is manifest that it was a condition precedent, because it says that this evidence is to be furnished to the party of the first part (the defendant) before the parties of the second part (the plaintiffs) will demand or shall receive the sums due upon final payment under this agreement. It would be difficult to see how a condition precedent could be expressed in more apt or appropriate terms. Such provisions in respect to architects’ certificates have always been held to the conditions precedent: and, if we were in need of authority for the support of this proposition, we have it in the case of Weeks v. O'Brien, 141 N. Y. 199 ; 56 St. Rep. 813. In this case it is held that, where a building contract contains a condition requiring an architect’s certificate of completion of the contract before payment of the last installment, it is essential, in an action upon the contract to recover that installment, to allege in the complaint performance of that condition, or to set forth facts excusing the plaintiffs from performing the condition, and that, in order to avail himself of it, the defendant is not, required to present it by demurrer or answer, but may raise it on the trial.

It is claimed upon the part of the appellants that, if compliance with the provisions of the written contract in reference to proof that no liens existed was a condition precedent, compliance therewith was waived by the defendant, upon the ground that the position taken by the defendant was that the plaintiffs had been paid in full for the work done and materials furnished. It would be a novel proposition to hold that an answer of payment could possibly be said to waive the performance of a condition precedent, which condition it was not necessary for the defendant to set up by answer, or, if the want of an averment made the complaint defective, raise by demurrer. ,

It would seem, therefore, that the plaintiffs’ proof was fatally defective, and the judgment must be affirmed, with costs.

All concur.


author: O’Brien, J.

text:
    In the Matter of the Application of Theodore G. Lurman for a Mandamus.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    1. Exchange—Contract.
    Neither the coffee exchange nor its members can engage in trading in adulterated coffee, and such coffee, though it may be equal to the grade of that called for by a contract, cannot be made the subject of a lawful delivery.
    2. Same.
    Where the vendor sets in motion the machinery of an exchange, and the question whether one of the members has made a tender of goods which it is unlawful to trade in is submitted to them, there must, in such exchange, be some hearing on the merits at some point before a person is deprived of rights within a private corporation to which prima facie he is entitled.
    3. Same—Graders.
    Such exchange cannot relegate the determination of such a question to a lay tribunal called “graders,” and, because of their report that the goods are not unlawful, refuse to give one of its members the benefit of a review or a hearing on the merits before depriving him of his membership.
    4. Same—Abrogating haws.
    The laws of a state cannot, by private contract or by the by-laws of any exchange, be abrogated or disregarded.
    5. Same—Sustaining member.
    An exchange cannot suspend a member for violation of by-laws which are illegal.
    Appeal from an order denying a writ for a mandamus to restore petitioner to full membership in the coffee exchange in the city of Mew York.
    In July, 1894, the petitioner’s firm entered into a contract with Messrs. W. H. Crossman & Bro. for the purchase of coffee of certain average grade. The contract provided that the coffee should be graded by Mackay & Small; that, should their grading be unsatisfactory to the buyer, the latter should appoint a grader, and, in the event of his average grading differing from that first submitted to the buyer, the two graders should name a third, who should act as arbitrator, and that the average grading named by him should be accepted by seller and buyer as the basis for the sale price. But the petitioner and the members of the firm of Crossman & Bros, are members of the Coffee Exchange of the City of Mew York. By its charter it is provided that the purpose of the exchange shall be, among other things, “to adjust controversies between its members, to inculcate and establish just and equitable principles in the trade, to establish and maintain uniformity in its rules, regulations, and usages, to adopt standards of classification..” Under the rules of the exchange; a tender of coffee is not good if the fact is shown that the coffee has been treated or manipulated with the result of concealing defects, or of making it appear to be better, or of greater value, than, it really is. This contract was not made within or upon the exchange. On the arrival of the coffee it was graded by Mackay & Small, and declared by them to accord with the contract. When it was tendered, the vendees refused to accept it, on the ground that it was adulterated, and therefore not lawful to be dealt in ; and for the same reason they declined to appoint a grader, and appealed to the exchange to have this controversy determined under the rules of that body by adjudication. Adjudicators—members of the exchange—were appointed, one by each side, and these two selected a third. The vendees claimed before them that the coffee was artifically colored, and that that fact of itself was sufficient ground for rejection of the coffee. The adjudicators were not unanimous in their decision. The one chosen by the petitioner stated that he had a chemist’s analysis of the coffee, showing that it was artificially colored, but the other two refused to examine it, and decided that, even if it was adultered, that fact did not justify a refusal to submit the coffee to grading, and that they had no jurisdiction of the question of the grade or condition of the coffee. From this decision the petitioner appealed to the board of managers of the exchange, making the same claims in regard to adulteration as before the adjudicators, and stating that the majority of the adjudicators had declined to consider, them. A ballot taken by the board on the appeal resulted in a tie, and the appeal was declared lost. The petitioner’s firm and Crossman & Bros, thereupon each appointed a grader, who, being unable to agree in all respects, chose a third man as arbitrator. The pettioner swears that the grader chosen by his firm refused to grade the adulterated coffee. The other grader and the arbitrator say that all three agreed as to the condition of some of the coffee, but neither of them says whether the coffee as to which there was a dispute was or was not adulterated. They both declare, in substance, that no evidence was produced before them as to the intent with which the coloring had taken place, and- that its effect was not to make the coffee appear to them better, or of a greater value than it really was; and one of them says he submitted a portion of it to a chemist, who reported to him orally that it contained nothing deleterious. Crossman & Bro.’s grader and the arbitrator accordingly decided, not that the coffee was free from adulteration, but that it was of the grade prescribed in the contract. No appeal was taken from this decision to the exchange, and it appears that if one had been taken it would not have been considered,' the by-laws making no provision for such an appeal; and an appeal in a similar case, with respect to another portion of the ■same shipment, having been refused.
    As the petitioner’s firm still refused to accept delivery, Cross-man & Bro. lodged a complaint against them with the adjudication committee of the exchange. The petitioner appeared before this committee, and filed a reply on behalf of his firm, making the same claims as they had theretofore made, and offering proof by letter and telegram from their grader, and sworn certificate of chemical analysis, to show that the coffee was artificially colored or painted, and also offering to prove by witnesses, unless the fact should be admitted on the record, that the coffee objected to was adulterated, within the meaning of the statute; and his statement is uncontroverted that “it was admitted by Mr. George W. Cross-man, who appeared on behalf of his said firm, that portions of the coffee were polished and colored.”
    It further appears that the official record of the proceedings of the adjudication committee states that, “ while the graders admitted that the coffee in question is colored, they neverthless declared that it was a good delivery under the contract.” The committee decided that, as there was no dispute that the grade arbitrators had held that the coffee tendered was a valid fulfillment of the contract, they could not reopen the question of grade, quality, or condition, and that the vendees, in not receiving and paying for the coffee (portions of which the vendors had admitted before them were polished and colored), had violated the by-laws of the exchange, and the complaint of the vendors was unanimouly sustained. On the same day that Crossman & Bro.’s complaint was presented the petitioner also presented complaints against Cross-man & Bro. and others, covering the entire matter, and with them a written statement in relation thereto, together with a copy of the applicable portions of chapter 661 of the Laws of 1893 and of the Penal Code; all .of which complaints were dismissed. The adjudication committee made their report to the board of managers of the exchange, with recommendations and suggestions, and a hearing before the latter board was appointed. The petitioners, who still refused to receive the goods, did not personally attend, but were allowed instead to submit the same written statement which they had laid before the adjudication committee. On behalf of Crossman & Bro. a copy of a report of chemists and certificate of analysis was presented. The report states that the ‘‘analysis was directed especially as ascertaining whether or not the coffee had been artificially colored with any injurious coloring material. You will note that we find no such adulterant present.” And the certificate of analysis says:
    “We * * * are unable to find any deleterious foreign matter present, either mineral or organic. We have to report that the coffee is free from any such adulteration.” The president of the exchange, in his affidavit, says that the hearings before the board of managers and the adjudication committee were not hearings upon the ultimate controversy as to the alleged adulteration of the coffee. The decision of the board of managers was “ that Mr. Theodor G. Lurman be, and he hereby is, censured by the board for having violated the by-laws and rules of this exchange, and that unless he settles with Messrs. W. H. Grossman & Bro. in full before twelve M. on Friday, the 19th instant, Mr. Theodore G. Lurman shall stand suspended from all privileges of the exchange for the period of one year.”
    Against this decision the petitioner presented a protest in writing, going over the whole ground, and stating that for any pecuniary loss which the firm might suffer by reason thereof they would hold the president and board of managers responsible. Thereafter a further resolution was adopted by said board extending the time for the petitioner to accept and pay for the goods under pain of suspension to Monday, October 22, 1894; and as he has since refused to receive and accept the goods, he has remained from that time suspended from said exchange.

      Chas. Stewart Davison, for app’lt; Edward M. Shepard, for" resp’t.
   O’Brien, J.

— From the outset of the controversy which resulted in- the suspension of the petitioner, he consistently took the position that he could not be required to accept a delivery of the coffee, because it was artificially colored or adulterated. If this-position could be maintained, then notwithstanding any by-law or rule of the exchange to the contraty, he could not be forced to accept a delivery of such coffees, for the reason that the trading in such contravenes the express statute of this state (Laws 1893, ch. 661, § 41), which provides:

“No person shall within the state * * * have, sell, or offer for sale any adulterated food or drug. * * * An article shall be deemed to be-adulera ted within the meaning of this act, * * * in the case of food, * * * if it be colored or coated or polished or powdered, whereby damage is concealed or it is made to appear better than it really is or of greater value.”

Although the exchange, through its various committees as shown was appealed to, and though graders were appointed pursuant to the terms of the contract, it is insisted by the petitioner that this claim was never considered or heard upon the merits; the position taken by the exchange being that the contract between the parties called for a grading by arbitration, and that, such grades having decided that the coffee tendered was up to the grade fixed by the contract, the petitioner should accept and pay for the coffee. The petitioner appealed originally to the exchange. They refused to consider the question of whether the coffee was adulterated or not and compelled the petitioner to name a grader, thereafter persisted in refusing to make any examination of the question of fact as to the adulteration on its merits, taking the stand that they would not review the original decision of the graders. As contended by the petitioner, therefore, the practical result is that the vendees named a grader under complusion; that they have attempted, by every procedure open under the by-laws of the exchange, to get a review of the'decision of the graders, but that they have failed ; and that this failure has been in the face of the uncontroverted fact of artificial coloration.

If we assume, as did the exchange, that the coffee was up to’ grade, the question remains whether or not the petitioner was entitled to have a determination on the merits upon his claim that the coffee was adulterared; and if he was entitled to such a hearing upon the merits, whether it was extended or had in any of the procedure adopted. We think it requires a mere reference to the statute quoted from to sustain the proposition that neither the exchange nor its members could engage in trading in adulterated coffee, and that such coffee, though it might be equal to the grade of that called for by a contract, could not be made the subject of a lawful delivery. This is but another way of stating that the penal statutes of the state cannot be disregarded, either by individuals or corporations. That this coffee, or some portions of it, was colored, is conceded by all who examined it; but whether this was a natural or artificial coloring underlies the question as to whether it was-adulterated. If a suit had been brought after tender against the vendees to recover damages for refusal to accept, it would have been a good defense, if proven, to show that the coffee tendered was adulterated. If, instead of suing, a vender sets in motion the machinery of an exchange, and the question of whether one of its members had made a tender of goods which it is unlawful to trade in is submitted to them, there must, in such exchange, be some hearing on the merits at some point before a person be deprived of rights within a private corporation to which prima facie he is entitled. Nor do we think that such exchange could relegate the determination of such a question to a lay tribunal called “graders,” and, because of their report that the goods are not unlawful, refuse to give one of its members the benefit of a review or a hearing on the merits before depriving him of his membership.

We are thus to determine the second question suggested, as to whether there was a hearing, either by the graders or by any committee of the exchange or by the exchange itself, upon the merits as to whether this coffee was or was not adulterated. We do not think it is claimed that before any committee of the exchange, or in all the procedure that was taken by that body, the merits of the controversy as to the adulteration were inquired into; the whole machinery of the exchange being seemingly brought to support the proposition that it would allow no investigation of any kind of an official character upon the question of fact as to whether the coffees tendered to the petitioner, for his refusal to receive which he was suspended, were or were not, as alleged by him, adulterated —in other words, were or were not goods contravening the express statute of the state. As shown by the affidavit of the superintendent of the exchange, the adjudicators did not consider any evidence of the unlawful coloring of the coffee, “ because it was expressly provided by the contract that the question of the grade of coffee should be considered by another tribunal” It will thus be seen that the exchange begged and overlooked the real question, and, because the graders had decided that the' coffee was up to grade, they refused to enter upon an examination of the question as to whether it was or was not adulterated, or to assume the obligation and responsibility which rested upon it or its board of managers of determining whether one of their members was right in refusing to do what the law says he should not do, viz. trade in adulterated coffees. Throughout, the exchange and its different committees ^nd managers place themselves upon the technical regularity of the proceedings which remitted to the persons who had the right to pass upon the grade the question whether the* coffees tendered were coffees which the petitioner should receive under his contract; and upon their conclusion that the coffee was up to grade the exchange set in motion its whole machinery, even to expelling the petitioner, in order to enforce the decision thus made by such outside tribunal. In this connection it must not be overlooked that, apart from the money involved, the petitioner had at stake his membership in the exchange, and because he would not give up the amount of money which, if he were right, he could not legally be required to do, he was, without any hearing by the exchange itself, deprived of his membership. Thinking as we do, that regardless of what may have been done by the graders, the exchange could not deprive one of its members of his membership for refusing to do what he claimed to be an unlawful act without inquiry, investigation, and decision upon whether this claim was justified, this of itself would be sufficient to warrant a reversal of the order, and a reinstatement of the member, and a remissiop of the whole question again to the exchange, to the end that the member should have a hearing upon the merits. It is doubtful, to say the least, if even the graders, upon whose decision so much reliance was placed by the exchange, ever considered the petitioner’s claim as to adulteration, they seemingly being as anxious to avoid this question as the exchange itself; and, as shown by their affidavits, they confined their attention to determining whether or not the, coffee was or was not up to grade. Just what they considered to be their duty and their view of the controversy, and what questions they considered, are well set forth in the affidavit of one of the graders, who states:

“ In grading coffee, the graders and grade arbitrators consider the grade, quality, and conditions of the coffee. If the coffee contain black beans, or imperfect beans, an allowance for such is made. So if the coffee contains stones or sticks or foreign substance of any kind, a proper allowance for that defect is made. So if there be any foreign substances adhering to or contained in the beans of coffee, whether coloring it or not, or if it appear that the coffee had been manipulated or treated in any way, that is an element which the graders and grade arbitrators must consider. Indeed, it is the duty of the graders and grade arbitrators to consider every element of grade, quality, or condition.”

It will thus be seen that they were giving little or no attention to the question of whether the coffee was adulterated, and were confining their attention, as they deemed it their duty to do, to a consideration of whether it was or was not un to grade. That this particular lot had coloring matter upon it is conceded by all who saw the coffee, thus raising at least a fair presumption that the claim advanced by the petitioner was placed upon some foundation, and was made in apparent good faith. Notwithstanding this, the record shows that the graders and the exchange were seemingly fearful of the issue, and studiously avoided ever giving a hearing on the merits to the claim advanced, and devoted their time to a consideration of the question as to whether the tender of the coffees was according to the contract, and regardless of whether it was adulterated or not, and as to whether it was unlawful or not; and the exchange endeavored, by the strongest means within their power,—by the act of expulsion,—to compel the petitioner to do what, if his claim is right, would be a criminal act, and subject him to the penalties prescribed by the statute. It is unnecessary to say that this the exchange have no power to do, because it requires no array of legal authorities to support the proposition that neither by private contract nor by the by-laws of any exchange ■can the laws of a state be abrogated or disregarded. We think, upon an examination of the entire record, that the petitioner is entitled to a hearing upon the merits, which he has never obtained ; and to that end, that he should be restored to his membership, and that then the whole subject should be referred to the exchange, who should in some appropriate manner, before suspending or expelling the petitioner, give him a hearing upon the merits of his claim, to which by law he is entitled.

Order reversed accordingly, with costs and disbursements.

All concur.


author: Putnam, J.

text:
    John Q. A. Ward, Resp’t, v. Homer Burgher, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    1. Summary proceedings—Petition.
    The petition was held, in this case, in the absence of an objection to its sufficiency, sufficient to give the justice jurisdiction.
    3. Same—Evidence.
    The evidence was held sufficient to show that the defendant was an undertenant of the lessee.
    Appeal from a final order in favor of plaintiff.

      jB. G. Ghetwood, for app’lt; M. H. Gouch, for resp’t.
   Putnam, J.

I think the petition was sufficient to confer juris-diction upon the justice to issue a precept. It set forth that the plaintiff was the owner of the premises described therein, that on or about September 3, 1893, they were rented to the Peckamose Fishing Club for one year from that date, and that defendant was in possession, as an undertenant of such club, and held over after the expiration of the term, without the permission of plaintiff. The defendant, in his answer, alleged that he was in possession of said premises under a valid and subsisting lease, which had not expired. On the trial no objection was made by him to the suffiency of the petition, and he made no motion for the dismissal of the proceedings when the plaintiff rested. The issues formed by the petition and answer were submitted to the jury without objection. The plaintiff testified that he rented the premises to the Peckamose Fishing Club, to be occupied by defendant, who was in the employ of the club, for one year from September 3, 1893, .and that the lease was not extended. The defendant was sworn as a witness, and did not deny this statement of plaintiff. The letters introduced by defendant did not conclusively show an extension of the lease. It did not appear from the one dated June 14, 1894, for what time the $50 .check therein inclosed was a payment, whether for a period before or after the letter. It would appear, however, from the subsequent letter, dated July 13, 1894, inclosing a check for $16.66, and the receipt of July 18, 1894, for salary for the month of June, 1894, that the $50 check of June-14th was for salary previous to June 14, 1894. We conclude, therefore, that the petition was sufficient to confer jurisdiction on the justice. "Under the provisions section 2231, Civ. Code, summary proceedings may be instituted against an undertenant, and the evidence was sufficient to show that defendant was in occupancy of the premises as an undertenant of the lessee. The testimony on the trial presented a question .of fact, which was properly submitted to the jury, the defendant making no objection to such submission. The plaintiff testified positively to a lease for one year, which expired on September 3, 1894, and that such lease had not been renewed, and, if the letters and receipt read by defendant had some tendency to contradict this evidence, such letters and receipt were not so conclusive as to authorize the justice to withdraw the case from the jury, especially as the defendant, when sworn as a witness, did not controvert the statement of the plaintiff.

The judgment should be affirmed, with costs.

All concur.