text:
    James J. Mooney, Resp’t, v. The Trow Directory, Printing & Bookbinding Co., App’lt.

      (New York Common Pleas, General Term,

      Filed February 6, 1893.)

    Negligence — Rule of the road.
    When the right side of the street is obstructed by cars and trucks, and the plaintiff, leading his horse, is ordered by a car driver to get off the track, he is justified in taking the left side of the street, and not guilty of contributory negligence therefrom where the horse, while there, is run into and injured.
    Appeal from the district court of the city of New York for the sixth judicial district.

      Frederick R. Kellogg, for app’lt; Benjamin Yates, for resp’t.
   Bookstaver, J.

This action was brought to recover damages for an injury to one of plaintiff’s horses occasioned by the negligence of defendant’s servant The learned and careful judge who tried this case in the court below has correctly stated the law both as to the right of way upon a public highway and concerning plaintiff’s contributory negligence. But appellant’s counsel criticises the opinion delivered by the justice in that he merely stated: “ It appears to me that he has sufficiently explained his presence on the left hand side of the street going westward ” ; without going into.the details for such a conclusion. We think, in this respect, he is to be commended rather than condemned,, because reasons for arriving at a conclusion of fact, especially when they are drawn from surrounding circumstances, can serve no good purpose and are seldom satisfactory to the party against whom the decision is made. But an examination of this case shows that he was fully justified in arriving at the conclusion he did.

It is in evidence that the accident happened about a quarter past six in the evening of the 29th January, 1892; the horse was-being led by one of plaintiff’s employees up Twenty-third street to his stable; there were two lines of street railroads on that street, each railroad owning and operating two tracks, thus making four tracks in all; at that time of the day the street was very much crowded with trucks, and the plaintiff’s employee testified that when leaving the coal yard he led the horse upon the track nearest the south side of Twenty-third street going west, because both sides of the street, north and south, were crowded with trucks, and right behind him on this track was a car going west, and that when he got near, that is, within thirty or forty feet of the corner of Avenue A and Twenty-third street, the driver of the car behind him called to him to turn out, and that in obedience to the driver’s request he turned out, and before doing so he looked to see if anything was coming up, and he saw that it was clear ahead to the left, and that he could not turn out to the right, that is, toward the north of Twenty-third street, because there were cars going easterly, and also the street north of the railroad track was crowded with trucks, and that, therefore, he turned out towards the south.

It is extremely doubtful whether the law in regard to keeping to the right on a public highway applies to anyone except the drivers of vehicles of some kind, and even as to them there are many exceptions. Newman v. Ernst, 31 St. Rep., 1; Harpell v. Curtis, 1 E. D. Smith, 78; Pike v. Bosworth, 7 St. Rep., 665; Smith v. Dygert, 12 Barb., 613 ; Steele v. Burkhardt, 104 Mass., 59; Smith v. Gardiner, 77 id., 418; Spofford v. Harlow, 85 id., 176. Thus, it would be sufficient for one to show he was drawing up to his stopping place to water his horse, or to turn out of the road, and, as we think in this case, because the right side of the road was obstructed by cars and trucks and other vehicles. On an examination of the evidence in this case, we think the justice was fully justified in finding as he did on this branch of the case.

Appellant also contends that there was no sufficient evidence that the defendant was guilty of negligence. But it appears from the case that the defendant’s wagon at the time of the collision had three persons in it who were desirous of reaching the foot of Twenty-third street in time to catch the 6:18 ferry for Brooklyn and had but a very short time to do it in. It was testified to by a car driver, apparently disinterested and unbiased, that the cart at the time was going at a very rapid rate and turning a corner; the wagon was not stopped, although defendant’s own witnesses testify that everything was done to do so as soon as possible, in some distance, showing it must have been going at a very rapid rate of speed. And the justice was fully justified, also, in inferring the rapid rate at which the vehicle was going from the nature of the injury inflicted upon the horse, which was very extensive and severe.

It was not claimed on this appeal that the rule of damages adopted by the justice was erroneous.

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

Bischoff, J., concurs.


source: Caselaw Access Project

author: Bookstaver, J.

license: Public Domain

text:
    Francis Eckenroth et al., Resp'ts, v. Henry H. Vought, App’lt.

      (New York Common Pleas, General Term,

      Filed February 6, 1893.)

    Appeal — Weight op evidence.
    Where the only question at issue was the reasonable worth of certain pine posts, and the evidence given by the parties interested and expert witnesses was conflicting, but that of the plaintiff was sufficient, if believed, to warrant a finding in his favor, such finding will not be disturbed on appeal.
    Appeal from a judgment of the district court of the city of New York for the fifth judicial district.

      John J. McKelvey, for appl’t; Robert O'Byrne, for resp’t.
   Bookstaver, J.

On the trial it was stipulated that the plaintiffs sold and delivered to the defendant the merchandise specified in plaintiffs’ bill of particulars and the defendant agreed to pay the reasonable value thereof, and that the reasonable value of the merchandise sold on September 3, 1890, was specified in the bill of particulars, and that defendant had paid on account $388.-23, which he claimed to be the reasonable value; but plaintiff claimed $101.27 in addition to the $388.23, out of which he admits there should be an allowance of $19.27. It was further admitted that of the fifty-four turned posts mentioned in the bill of particulars, thirteen were locust and reasonably worth $8.75 each, and the remaining posts, forty-one in number, were yellow pine, the reasonable value of which is the item in dispute in this action. It was further conceded by defendant’s attorney, that if plaintiffs succeeded on the trial, they could recover $82. The matter at issue is thus narrowed down to what was the reasonable value of the forty-one pine posts furnished to defendant by plaintiffs. The original contract under which the fifty-four posts were to be made and' delivered called for locust posts, but it was modified after the delivery of thirteen locust posts so that the forty-one remaining were to be of pine. Upon this question both parties offered considerable evidence, some of it being by parties interested, and other by expert witnesses. A careful review of the evidence does not convince us that there was such a preponderance in favor of the defendant that the judgment should have been in his favor.

There is quite sufficient evidence on behalf of the plaintiffs to warrant the finding of the court below and the judgment should, therefore, be affirmed, with costs.

Bischoff, J., concurs.


text:
    William F. Meeks et al., Resp’ts, v. Lewis Simon, App’lt.

      (New York Common Pleas, General Term,

      Filed February 6, 1893.)

    Conversion — Pawnbrokers—Damages.
    Plaintiffs, watch dealers, received a call from one H., who told them she had a party, one P., who wanted a watch; thereupon they gave her a watch to be delivered to P., instructing H. to have P. sign a certain conditional bill of sale. H. took the watch to defendant’s pawn shop, where she pawned it for $15, then reported to plaintiffs that she had delivered it to P., and gave them the bill of sale, purporting to have been signed by P. Thereafter H. paid plaintiffs $11 on account of the purchase price of the watch, $40, telling them the money was paid by P. The cost of the watch was $18. In an action against defendant for damages for the wrongful conversion of the watch, judgment was given plaintiffs for §40. Held, error; that they were only entitled to recover the cost of the watch, less the amount paid.
    Appeal from two j udgments, each rendered in the district court of the city of Hew York for the tenth judicial district.

      George Carlton Comstock, for app’lt; Samuel Johnson, for resp’t.
   Bookstaver, J.

These actions were brought in the tenth district court to recover from the defendant damages for the wrongful conversion of personal property consisting of three watches, two of them of the alleged value of $40 each, and the third of the alleged value of $70. On the trial it was stipulated that the decision in one cause should control in the second action, and the parties proceeded to try the two actions together.

It appeared from the evidence that the plaintiffs were in the business of selling watches, diamonds and jewelry, and in the autumn of 1891 were the owners of the property in question. On or about October 24th, a Mrs. Hawkes called upon plaintiffs, and told them that she had a party by the name of Mrs. Brimm who wanted a watch; thereupon they gave her one of the watches in question to be delivered to Mrs. Primm, at the same time instructing Mrs. Hawkes to have Mrs. Primm sign a certain conditional bill of sale which was given her in blank; when signed, this conditional bill of sale was to be returned by Mrs. Hawkes. When she received the watch, instead of taking it to Mrs. Primm, she took it to the defendant’s pawn shop, where she pawned it for fifteen dollars, receiving a pawn ticket of the defendant, Ho. 74,313. The next day, or the day after, Mrs. Hawk-es reported to the plaintiffs that she had delivered the watch in question to Mrs. Primm, and gave them the printed conditional bill of sale, with the blanks filled in and a signature at the bottom, purporting, in words, to be that of Mrs. Primm, which is as follows:

“Ho. 660.
“ This indenture, witnesseth that I have this day rented and leased from W. F. Meeks & Co., of 9 Murray street, in the city of New York, the following goods and articles: Gold watch, 479046, for the use of which I promise to pay the sum of four dollars on the day hereof, and one dollar each and every-week until the sum of forty dollars has been fully paid, when said W. F. Meeks & Co. agree to execute and deliver to me a bill of sale of said goods without further consideration ; and I agree to keep in my possession the said property, in trust for the said W. F. Meeks & Co., who neither parts with, nor do I acquire any title thereto until said sum shall be fully paid, as aforesaid: and in case default shall be made in any of • the aforesaid payments on a demand being made by1 the said W. F. Meeks & Co., I hereby agree to surrender and return to him the said goods, and allow him to keep and retain the money paid thereon for the use and rental thereof.
“ In witness whereof, T have this 24th day of October, 1892, set my hand and seal, signature,.Primm, residence, 450 Canal-street [Seal.]”

On the back of the lease was indorsed the following “No. 6607; Address, .... name, Primm; remarks, watch, $40; October 24, $4; $12; $2.”

When Mrs. Hawkes delivered this lease, she paid to the plaintiff five dollars, which was indorsed in one of the blank spaces on the back of the conditional bill of sale. From time to time thereafter she brought in further moneys and paid them to the plaintiffs on account of the watch referred to in this paper, telling them .the money so paid was paid by Mrs. Primm on account of the conditions of the contract, and each time plaintiffs credited the sum on the back of the paper against the value of the watch therein mentioned. The plaintiffs afterwards discovered that the money was not paid by Mrs. Primm, but was Mrs. Hawkes’ own money. In this manner they'received altogether on account of this watch the sum of eighteen dollars against its value.

It thus appears by plaintiffs’ evidence, which is undisputed, that on the watch No. 479,046, the plaintiffs received altogether eighteen dollars, which was not at any time tendered back to anyone by the plaintiffs. There is no charge in these actions of any bad faith or knowledge of the fraud upon the part of the defendant, and he is merely sued as a purchaser or pledgee of the watch for value. In addition to this it appeared that the cost of this watch to the plaintiffs was eighteen dollars only, exactly the sum which had been paid them for the watch by Mrs. Hawkes.

Precisely the same facts appear as to the second watch, No. 442,804, except that Mrs. Hawkes got it, alleging that it was for an Alice Primm, on the 25th November, 1891, and pawned it with the defendant on the same day. The third watch was obtained under precisely the same state of facts, except that Mrs. Hawkes got it on November 6, 1891, stating it was for a Mrs. Hughes, and pawned it with the defendant on the same day. The value of this watch, as alleged in the conditional bill of sale, is seventy dollars; it cost the plaintiffs $32.30, and it could have been replaced by them f- r the same money.

It further appears that when the demand for these watches was made upon the defendant, the plaintiffs did not tender to him either the pawn tickets or the amount defendant had advanced on the watches, or any part thereof.

If the plaintiffs have the right to maintain these actions at all, it must be upon the theory of a conversion, based upon a larceny •of the watches by Mrs. Hawkes, and as against the defendant acting in good faith they could only obtain their actual damages, that is, the market value of the watches, or what it would have •cost the plaintiffs to have replaced them. Wehle v. Haviland, 69 N. Y., 448. There does not seem to be a case precisely parallel to those under consideration. Yet there are a number of cases iri this state based upon the principles involved in these actions. Thus it has been held that after the conversion of the property, the title still remained in the owner and the property can be taken from the wrongdoer upon an execution against the owner .and sold and the proceeds applied upon his debt, and the owner will thus have the benefit of the property. In such case the wrongdoer can set up this seizure and sale, not as an entire defense, but in mitigation of damages. Ball v. Liney, 48 N. Y., 14. Where the owner voluntarily receives the proceeds of the property wrongfully taken or directs or assents to their application to his use, such facts may be shown in mitigation the same as the receipt or application of the identical property taken by the trespasser. Torry v. Black, 58 N. Y., 191. Hence in these actions the defendant had a right to offset in mitigation of the damages of plaintiffs the sum of money received on account of these watches by them. Thus from the value of the first watch, to wit, $18, should be deducted $18 : from the value of the second watch, which was $18, should be deducted $11, the amount paid thereon; and from the value of the third watch, $32.30, should be deducted $23.30. And the justice who tried this case erred in giving judgment for the full amount, without making those -deductions.

The judgment should, therefore, be reversed and a new trial ordered in the court below, with costs to the appellant to abide the event, unless plaintiffs will consent to a reduction of the. judgments as before indicated.

Bisohoff, J., concurs.


author: Bischoff, J.

text:
    In the Matter of the Application for the Probate of the Last Will and Testament of Henry M. Loewenstine, Dec’d.

      (New York Common Pleas, General Term,

      Filed February 6, 1893.)

    1. Will — Testamentary capacity — Delusions.
    Testator bequeathed to Ms wife only a small sum, as “ she has proven herself not to be a loving wife.” He died, while a patient in an insane asylum, from dementia 'paralytica, which indicates its presence by three stages, exaltation, depression and absolute dementation. It was shown that at the time of the execution of the will he was in a state of intermittent exaltation and depression, and that prior to such time the mutual devotion of husband nd wife was marked, while thereafter he became querulous and accused her on imaginary grounds. Held, that the jury’s finding that the testator was not possessed of testamentary capacity should not be disturbed.
    3. Evidence — Physicians. .
    The statute which disqualifies an attending physician was designed to exclude only such information as the physician could only acquire in actual professional attendance upon the patient.

      Appeal from an order denying proponent’s motion for a new trial.
    Trial of issues in proceedings for the probate of an alleged last will and testament pursuant to the provisions of § 2547 of the Code of Civil Procedure.

      Daniel 6?. Rollins, for app’lt; Otto Horwitz, for resp’t.
   Bischoff, J.

The paper propounded as the last will and testament of Henry M. Loewenstine was executed August 8,. 1888, and contained the following provision : “ Second, I hereby give, devise and bequeath unto my wife Rosa the sum of five hundred dollars, as ten thousand dollars of life insurance is in her name, and she has proven herself not to be a loving wife.” No other provision was made for the wife and the remainder of the estate was left in trust for the use and benefit of an infant daughter, Gladdys, the decedent’s only child. He died in April, 1890, while confined as a patient in an asylum for the insane known as the Long Island Home, at Amity ville in this state. From conclusive evidence it appears that his death was directly attributable to a mental disorder scientifically termed dementia paralytica, but popularly known as progressive paresis, which has its incipiency about three years before death and indicates its presence by three consecutive stages, the periods of exaltation, depression and absolute dementati'on, the first two stages being accompanied by delusions. It was conceded by the subscribing witnesses that at the very time of the execution of the alleged will the sanity of the decedent was a matter of serious concern, and it was abundantly shown that at or about this time he was in a state of intermittent exaltation and depression, which denoted his gradual transition to the state of absolute demention immediately preceding his death. A number of witnesses acquainted with the decedent and his family testified to the effect that previous to the incipiency of the disorder which culminated in his death the domestic relations of the decedent were more than ordinarily felicitous, the mutual devotion of husband and wife marked and pronounced, while thereafter he became petulant and querulous, accusing his wife upon trivial and sometimes wholly imaginary grounds, at intervals of constantly growing frequency, of neglect of himself and their infant daughter, though her devotion both as wife and mother had been unceasing. Upon this evidence the conclusion is irresistible that the decedent at the time of the execution of the paper propounded was unduly influenced by delusions which injuriously affected the natural regard for his wife, and, assuming that there are no errors in the admission or exclusion of evidence, the jury’s finding that the decedent was not possessed of testamentary capacity should not be disturbed.

To establish the existence of the mental disorder which led to his death, contestant offered the testimony of Doctors Walstein and Schweig, physicians who had at times been in actual professional attendance upon the decedent. This proponent objected to as incompetent, under the provisions of § 834 of the Code of Civil Procedure, “ that a person duly authorized to practice physic or surgery shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.” The court thereupon ruled that the witnesses should be permitted to testify to any knowledge obtained from personal acquaintance with decedent before their respective professional relations with him commenced, and after they ceased, and excluded all testimony affecting knowledge obtained during the pendency of the relations; and hereto proponent excepted. The ruling is, however, sanctioned by the court of appeals in Fisher v. Fisher, 129 N. Y., 654; 42 St. Rep., 100.

One further exception was taken to the admission of Dr. Williams’ testimony, who, though not actually in professional attendance upon the decedent, had secured knowledge of his condition pending a visit at the Amityville Asylum as the guest of Dr. Carpenter, the medical superintendent, during which time he had assisted Dr. Carpenter in the discharge of his official and professional duties. This exception is, however, equally unavailing. The testimony related wholly to matters which were'alike apparent to all persons sufficiently skilled in medical science, whether called to attend professionally or not so; and the statute which disqualifies an attending physician was designed to exclude only such information as only the physician in actual professional attendance upon the patient could acquire. For instance, as here, dementia paralytica, or progressive paresis, has certain well defined indications which are exteriorally perceptible to almost every person. From these indications one learned in the science of medicine concludes the presence of the disease, makes his diagnosis, as the physician terms it, but his professional attendance upon the afflicted is not necessary to enable him to do so. But it is useless to pursue the discussion, since by recent amendment of § 836 of the Code of Civil Procedure, see chap. 514, Laws 1892, the testimony is made competent beyond peradventure.

The order appealed from should be affirmed, with costs.

Daly, Ch. J., and Pryor, J., concur.


text:
    William L. Flagler, Resp’t, v. Julius Lipman, App’lt.

      (New York Common Pleas, General Term,

      Filed February 6, 1893.)

    1. Statute of frauds — Promise.
    Where one promises to pay the debt of a third person if the promisee would release such third person and rely solely and only upon the promisor for payment, the promisor becomes the original obligor, and, therefore, the promise is not within the statute of frauds and need not be in writing.
    2. Same — Consideration.
    The fact that the release relieved the property of S., in which the promis- or was interested from a possible mechanic’s lien and forever prevented the promisee from asserting his claim against S., is a sufficient consideration for the promise.

      Appeal from a judgment of the general term of the city ■court, affirming a judgment in the court below and an order denying a motion for a new trial.

      E. A. Jacob, for app’lt; Menken Bros., for resp’t.

       Affirming 49 St. Rep., 81.

   Bookstaver, J.

This action was brought by the plaintiff upon a, verbal promise made by the defendant to be answerable to the former for the payment of $873, the balance due him from one William C. Schmidt on account of labor and material furnished the latter on certain premises belonging to him. The consideration- for such promise being a release under seal of Schmidt from .all indebtedness for said work. On the faith of this agreement, plaintiff executed to Schmidt the release bargained for, and at the ¡same time received from the defendant $223, and afterwards the further sum of $200, leaving a balance of $450, for which recovery is sought in this action. The answer denies every allegation ■of the complaint, except that plaintiff received the two sums of money from defendant, and in respect to them alleges that they were paid by him at the request, with the consent and for the account of one William Bell, the former owner of the property in «question and the person from whom Schmidt derived title thereto, who was indebted to plaintiff.

On the trial it appeared that Lipman, the defendant herein, together with another, held a matured second mortgage on the prop■erty to the amount of $13,000, subject to a purchase money mortgage of $118,500.

The jury found a verdict in favor of the plaintiff, and thus de- ■ tided that Schmidt, not Bell, owed the plaintiff the money in suit, ¡and it appears from the case that the plaintiff was in a position to file a mechanic’s lien upon the premises, which would have been to the injury of the defendant, the mortgagee; hence his interest in preserving the premises from such an incumbrance.

Notwithstanding this, and notwithstanding the fact that the de- • fendant, a lawyer, presumed to know the law, by means of this .-agreement obtained from the plaintiff, a man not skilled in the • •law, a release of his claim, he, in the court below, sought, and now seeks, to avoid the verbal agreement on the ground that it ■ lias no validity under the statute of frauds.

It is quite true that that statute requires an agreement to pay "the debt of another to be in writing, and signed by the person .-sought to be charged therewith, but the test to be applied in such ¡a case is, whether the party sought to be charged is the principal «debtor, primarily liable, or whether he is only liable in case of the ■default of a third person. In other words, whether he is the •debtor, or whether his relation to the creditor is that of a surety for the performance by some other person of the obligation of the latter to the creditor. Brown v. Weber, 38 N. Y., 187. A verbal undertaking is within the statute, unless the defendant, before making the promise, had so dealt as to make the debt his own, ■or had incurred a duty to pay the amount due the plaintiff. Ackley v. Parmenter, 98 N. Y., 425.

In this case, the defendant had promised to pay Schmidt’s debt if plaintiff would release Schmidt and rely solely and only upon him for payment; under such a promise he became the original obligor, and, therefore, is not within the statute, and his promise need not be in writing.

The consideration for such a promise was quite sufficient. The release relieved the property in which the defendant Was interested from a possible mechanic’s lien, and forever prevented the plaintiff from asserting his claim against Schmidt. There was, therefore, not only a valuable consideration for the agreement on defendant’s part, but a detriment to the plaintiff.

There is no proof to sustain appellant’s contention that plaintiff had not performed his contract with Schmidt at "the time the agreement was made nor is any such non-performance pleaded.

As appears from the case, the work done by plaintiff was done under Schmidt’s direction and, as before shown, he was liable to the plaintiff for its payment. It was not necessary to show, therefore, that the work was done to Bell’s satisfaction.

Upon the appeal to this court our attention was not called to any other exceptions than those noticed.

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

Bischoff and Pryor, JJ., concur.


author: Bookstaver, J. Pryor, J.

text:
    Morris B. Baer et al., Resp’ts, v. Henry C. F. Koch, App’lt.

      (New York Common Pleas, General Term,

      Filed February 6, 1893.)

    I. Brokers — Cannot act for both sides.
    By attempting to act for both sides a real estate broker loses his claim for commissions and can enforce payment from neither one.
    3. Same — Evidence.
    In an action by real estate brokers to recover commissions, one of the plaintiffs and his witness were allowed to testify to certain conversations with persons other than parties to the action and not in their presence. The questions being asked simply by way of showing what the plaintiffs did in regard to securing the property for defendant. Held, admissible in order to determine the quantum meruit to which the plaintiffs were entitled.
    Appeal from a judgment rendered on the verdict of a jury at trial term.

      Henry G. K. Heath, for app’lt; Miller & Miller, for resp’ts.
   Bookstaver, J.

The defendant, desiring to purchase some lots on One Hundred and Twenty-fifth street near Third avenue, in the city of Hew York, for the purpose of erecting a store, requested the plaintiffs to enter upon the work of finding suitable property; after considerable effort on their part, they reported that no such property could be obtained in the desired locality, and then suggested to the defendant the expediency of purchasing further west on One Hundred and Twenty-fifth street, near Lenox avenue, and they were then authorized to look in that neighborhood; they procured,several pieces, among which was the property in question, which they reported to the defendant with the terms on which it could be purchased. It appears from the evidence that the plaintiffs were the first persons to whom a price had been given, and a sale of this particular piece .of property authorized. And the main question litigated on the trial was whether, notwithstanding the plaintiffs submitted this offer to the defendant, they were the procuring cause of the purchase, or whether one Bennett, a real estate broker, through one, Mr. Hume, was the procuring couse of the purchase; ana this question was the main one submitted to the jury by the court, which found a verdict in favor of the plaintiff. A motion for a new trial upon the minutes was made and denied.

' It is no doubt true, as contended' by appellant, that in this action the burden of proof was upon the plaintiffs to establish their case, which, from the verdict, they successfully did, and while the jury might well have found in favor of the defendant, yet the evidence abundantly sustains the conclusion to which they arrived, and we see no reason why it should be disturbed. But appellant contends that, notwithstanding this verdict, the plaintiffs should not recover, because they showed no express promise on the part of the defendant to pay the brokerage ; but an employment for services involves an obligation to pay compensation therefor.

In the absence of an agreement respecting the amount of compensation or of anything to show that the services were merely gratuitous, and our experience with real estate brokers as gathered from the many cases brought in the court is, that they never work gratuitously, the law implies a reasonable amount, a quantum. meruit; /but a quantum meruit in this case is the usual commission paid for such services. Levy v. Coogan, 30 St. Rep., 553; Crombie v. Waldo, 42 id., 225; Briggs v. Boyd, 56 N. Y., 289; Milliken v. West. Un. Tel. Co., 110 id., 412; 18 St. Rep., 328; Sibbald v. Bethlehem Iron Co., 83 N. Y., 383. A broker employed to purchase property cannot properly act for the seller ; his duties are to act in the interest of the purchaser, which is to procure the property at the lowest price possible; hence the reason for the rule which prohibits the broker from recovering compensation from both parties without their consent to his acting in the dual capacity. Dunlop v. Richards, 2 E. D. Smith, 181; Pierce v. Thomas, 4 id., 354. By attempting to act for both sides he loses his claim for commissions, and can enforce payment from neither one. 113 Mass., 133; 1 Allen, 494; 98 Mass., 348; 37 Ohio St., 396; 40 id., 203. The broker for the purchaser not being allowed to act for the seller, cannot lawfully claim compensation from the seller, and when he is entitled to compensation for his services in such case, he must get it, if at all, from the purchaser who authorized him to act, and for whom he did, in fact, act. Jarvis v. Schaefer, 105 N. Y., 293; 7 St. Rep., 502; Sussdorff v. Schmidt, 55 N. Y., 319. The testimony both as to amount of commissions and the custom to pay them was ample to sustain the verdict; and they were entitled to them because, as found by the jury, they procured the property, brought it to defendant’s notice, at the price and upon the terms which the defendant accepted. The latter might have closed the contract when the plaintiffs first brought the property to his attention upon precisely the same terms that he ultimately paid. Mr. Bennett’s efforts in the matter of reducing terms wholly failed, and his services were of no practical avail to the defendant. Having employed the plaintiffs to procure the property for him, and they having done so, the defendant could not complete the purchase himself, and thus deprive the plaintiffs of their commissions. Paulsen v. Dallett, 2 Daly, 40; Martin v. Silliman, 53 N. Y., 615; Fraser v. Wyckoff, 63 id., 448; Lloyd v. Matthews, 51 id., 124; Sibbald v. Bethlehem Iron Co., supra; Morgan v. Mason, 4 E. D. Smith, 636; Chilton v. Butler, 1 id., 150.

But appellant contends that the complaint should have been dismissed because the evidence shows that plaintiffs knew the property was wanted for the purpose of erecting thereon a store for the business of defendant’s firm, and that his partner should have been joined in the action. But this question was left to the jury upon the evidence as to whether plaintiffs knew that fact or not, and their attention was sharply drawn to it by the charge of the court, and they have found upon the evidence in plaintiffs’ favor upon that point, which is conclusive upon us in the absence of passion, prejudice, fraud or mistake, none of which appears in this case. It, therefore, only remains to examine the exceptions taken to the admission and exclusion of evidence, and to the court’s charging as requested by the plaintiffs, and refusal to charge as requested by the defendant

One of the plaintiffs, and one of his witnesses, were allowed to testify to certain conversations with persons other than parties to the action, and not in their presence. These questions were asked, not for the purpose of sustaining the mam issues in the case, but simply by way of showing what the plaintiffs did in regard to procuring property for the defendant, and were admissible in order to determine the quantum meruit to which the plaintiffs were entitled. The objection as to conversations with Mr. Place was not well taken, as he was the agent for his wife, and acted for her as such agent throughout the negotiations. Nor can it be justly said that the plaintiff, Baer, oh the witness stand misrepresented Mr. Place’s ownership of the property; we think the testimony only went to show that he was acting as such agent. It was not error to exclude the question asked of Mr. Bennett, a witness called on behalf of the defendant, as to whether or not the Place property was upon the sale books of real estate brokers in Harlem. That question was entirely immaterial to the determination of the issues in controversy in this action; nor did it tend to contradict the efforts made by the plaintiffs to procure property. The hypothetical question put to Mr. Libby, a witness called on behalf of the defendant, was properly excluded, as it did not contain all of the facts which had been proved at that time. In short, we find no error in the admission or exclusion of evidence in this case which could by any possibility have injured the defendant, wliich must appear before we would be justified in reversing a judgment on this account.

The appellant requested the court to charge “ that in the absence of an express agreement on the sale of real property, the vendor pays the brokerage.” It is quite true this is the general rule as far as the vendor is concerned when he employs a broker to sell for him, but the court properly qualified this request by saying as it did, “ that is upon a sale of it; this is a question of purchase,” where, of course, the person desiring the purchase to-be made and employing a broker to procure it is bound to pay for the services. As before shown in the general discussion of the questions under consideration, it was quite proper for the court to charge that “in the absence of any evidence to the contrary the law would imply a promise to pay for services rendered, and the defendant has no right to expect that those services were gratuitous, unless from some affirmative action on the part of Mr. Baer.” And the same is true of the further charge made by the court to the effect, “ if a party desiring to purchase property employs a broker to find property for him, he is under no obligation to pay unless he consents to take the property which the broker-offers ; but when he does take the property which the broker offers, his obligation is to pay, unless there is some arrangement that the-compensation shall fall upon some other person.”

We, therefore, think that the judgment should be affirmed,, with costs.

Bischoff, J., concurs.

Pryor, J.

The action is by brokers to recover compensation-for negotiating a purchase of property on behalf of the defendant.

By his answer and a motion to dismiss, the defendant' interposed the objection of a defect of parties; in that the employment of the plaintiffs, if any, was not by the defendant individually, but by the firm of Koch & Eeisenberg.

In point of fact the employment, if any, was by the defendant Koch, but, nevertheless, it may have been for and in behalf of the firm; in which event both members of the firm were necessary parties, provided Koch did not still engage himself only, or the plaintiffs were apprised that their employment was on account of the firm. For, a member of the firm acting for the-firm may so pledge his individual responsibility as to afford relief against himself alone; or, by failure to disclose the joint interest, may subject himself to a several action. Noe v. Christie, 51 N. Y., 270; Cookingham v. Lasher, 2 Keyes, 454, where it is ruled, that “ when a copartner makes a contract in his own name, without disclosing the partnership, when sued' individually upon such contract, cannot turn the plaintiff over to a litigation with a stranger.” Upon the questions whether the defendant revealed the partnership. at the time of the employment, and whether the plaintiffs were informed that they acted for the firm, the evidence was such as to authorize a verdict either way; and the issues having been submitted to the jury on an unexceptional charge,, we are not at liberty to gainsay their conclusion.

As to the employment of the plaintiffs, it appears that they were retained, in the first instance, to secure property in a specific-locality ; that suitable property in that locality was unattainable ; that thereupon plaintiffs called defendant’s attention to the property in question and suggested its purchase; and that accordingly he did purchase it. Upon these facts it is clear beyond doubt-that the defendant did, in legal effect, employ the plaintiffs to purchase the identical property; but if more be needed, it is-supplied by evidence of authority to the plaintiffs to look for other property than that first contemplated.

The defendant resists the plaintiffs’ claim upon the further ground, that they were not the procuring cause of the purchase. But, they proffered the property to the defendant for a given-price, and he eventually bought for that price. True, he declined the purchase at first; and true, also, that another broker-had directed his attention to the property; but at last he accepted the terms tendered by the plaintiffs. Whether plaintiffs or the other broker were the procuring cause of the purchase was fairly presented to the jury by the court, and their verdict is conclusive of the controversy.

The fact that, after the plaintiffs had presented an acceptable vendor, the defendant took charge of the negotiation and concluded it on the terms offered by the plaintiffs is ineffectual to defeat their claim for compensation. Lloyd v. Matthews, 51 N. Y., 124; Martin v. Silliman, 53 id., 615; Knapp v. Wallace, 41 id., 477; Sibbald v. Iron Co., 83 id,, 378.

It results, therefore, that as the defendant employed the plaintiffs to make the purchase, their demand was upon him; and they had no claim against the vendor for services he had not engaged them to render.

Ebr is it of the slightest effect on the validity of the plaintiffs, claim that the defendant never promised to pay them. Upon the-rendition of services, at the request and for the. benefit of another, the law fastens upon him an obligation to pay their reasonable value, and adjudges the customary or market price to be that reasonable value.

Upon the issues discussed, the evidence was conflicting; but as they were submitted to the jury in a charge of the utmost fairness to the defendant, we repeat that it is not for us to disturb a verdict resting upon sufficient proof, and not, apparently, inconsistent with the interests of justice.


text:
    George Reynolds, Resp’t, v. The Manhattan Athletic Club, App’lt.

      (New York Common Pleas, General Term,

      Filed February 6, 1893.)

    1. Contract — Performance.
    Readiness to perform a contract is shown only by some act or word expressive of such disposition.
    2. Same — Athletic sports — Referee’s decision.
    Where the plaintiff, a boxer, entered into a contract to box ten round® for a certain sum, part to the winner and part to the loser, certain rules tq> govern, and the referee’s decision to he final, one of the rules being that no part should go to the loser if he “ quits,” Held, that the court could not disturb the referee’s decision that plaintiff “quit" and was not “ knocked out.”
    Appeal from a judgment rendered in the district court of the city of’ New York for the second judicial district.

      George W. Carr, for app’lt; Hiram Ketchum, for resp’t.
   Bookstaver, J.

Reynolds, a professional boxer, brought this action upon an oral complaint to recover ninety-nine dollars for breach of a contract signed by him only, which was not offered in evidence, but the contents of which are testified to without objection, and which was substantially as follows : Reynolds agreed to box A. L. O’Brien at defendant’s club house on June 22,1892, ten rounds for $300, $200 to the winner and $100 to the loser, Reynolds to put up $50 forfeit in Dominick McCaffrey’s hands for appearance and weighing in. The answer was a general denial. Reynolds put up his fifty dollars as provided for in the contract, appeared and weighed in, and began the boxing contest, but boxed only two out of ten rounds. He himself testifies that he stopped because he was fouled and hurt, and although he says he told his seconds he was ready and willing to stay the ten rounds, he does not testify that he so told McCaffrey, the referee, or any one else than his seconds. The testimony on both sides was that the referee’s decision in boxing contests is final as to all questions. Defendant’s testimony goes to prove that the contest was under what is known as the Marquis of Queensberry’s rules, although they were not put in evidence, and also under the club rules, which defendant’s witnesses said were communicated to the plaintiff before the match, and this he does not deny. It was testified that under both of these rules there is an interval of one minute each round, and that if a contestant is knocked down during a round and remains down for ten seconds, he is counted out of the contest, and in this event gets second money; but if a contestant makes a pretense of being knocked down and out, or “ quits,” as it was called in technical sporting parlance, he would not even be entitled to second money; and that it was the province of the referee to decide whether a contestant quits, or, as it is otherwise called, “fakes,” or is fairly knocked out, and his decision on this question is also final.-

The plaintiff admitted in his testimony on the trial that the referee determines the fight and the money. The referee did determine that O’Brien, the plaintiff’s opponent, was the winner, and that Reynolds was'not entitled to any money, as he had quit, that is, had wilfully evaded further sparring.

If this contest was to have been had solely under the terms of the contract plaintiff signed, then he cannot recover, and it was error to so decide, for he agreed to box ten rounds, and it is admitted he boxed only two. He seeks to avoid this apparent breach of contract by now claiming that he was ready and willing to go on with the remaining rounds, but the testimony is overwhelmingly against this contention. The only testimony to support his then alleged willingness and readiness to perform the contract consists of his and his seconds’ assertion at the trial that he was then ready and willing to continue the contest. Neither of them state that by word or act such readiness and willingness was indicated. What they say amounts to nothing more than an expression of plaintiff’s mental state in this -regard. They both admit that neither of them told the referee, or any one of the officers of the defendant, that plaintiff was ready to continue. Readiness to perform a contract is shown only by some act or word expressive of such disposition. Now, it is apparent that plaintiff did not perform the contract according to its terms, nor did he offer to do so. It is a fair and necessary presumption that such a contest would not be had except under some rules, and the uncontradicted testimony is that these rules were communicated to the plaintiff before the contest began, and he knew that the decision of the referee upon the question of quitting, or being fairly knocked out, was for the referee to determine, and was final; his determination being that it was a willful quitting, therefore, is binding upon him, and he cannot recover in this action. The only possible theory upon which the justice could have decided in plaintiff's favor is that he believed plaintiff did his best and was fairly knocked out. To this there are two insuperable objections. " If he was fairly knocked out, which means rendered incapable of further contest, then his statements are irreconcilable.

It is not contradicted that on the night in question he admitted he was knocked out, therefore his present statement that he was ready and willing must be untrue. And again, what the justice believes as to whether plaintiff was fairly knocked out was inconsequential, as the parties had agreed to leave the disposition of that question to the referee, he, and not the justice, was to decide whether the plaintiff was fairly overcome or quit, and he decided against the plaintiff. Whenever defendant’s witnesses speak of plaintiff being entitled to the money if fairly knocked out, they must mean if the referee were of the opinion that he was fairly knocked out, otherwise the disposition of the question would rest with the contestant, or could never be decided where a dispute occurred except by a court. The parties under the agreement between them made the referee the sole arbiter of this question.

The judgment should, therefore, be reversed, with costs of this appeal to the appellant.

Bischoff, J., concurs.


author: Per Curiam.

text:
    William Magee, Resp’t, v. The City of Brooklyn, App’lt.

      (City Court of Brooklyn, General Term,

      Filed March 27, 1893.)

    Condemnation proceedings — Award.
    Where the owner of premises taken under the North Second street widening act of 1871 conveyed the land after the passage of the act and before the report of the commissioners was confirmed, the right of the award follows the title and passes to the grantee.
    Appeal from judgment in favor of plaintiff.

      Frank N. O'Brien, for resp’t; Almet F. Jenks, for app’lt
   Per Curiam.

This is one of the many cases that have arisen under what is commonly known as the “ North Second street widening act,” and is brought to recover the amount of an award made for land taken under said act.

The act in question was passed April 19, 1871, and the land was taken by force of the act. At that time, one Charles -S. Schultz was the owner of the lot, a portion of which was taken ; on January 10, 1874, he conveyed the same to one Caroline S. Schwartz, and she, on March 20, 1876, conveyed said premises to Sarah F. Mann.

The report of the commissioners of estimate, appointed under said act, was confirmed November 9, 1876, and, by their report, they made an award of $1,600 to the said Caroline S. Schwartz for so much of the lot so as aforesaid conveyed as was taken for said widening. Under certain mesne conveyances, with full covenants of warranty, the whole of said lot, including, in the description thereof, the strip so taken, was conveyed to the plaintiff, who brings this action to recover the amount of said award. Plaintiff had judgment below, and defendant appeals.

The cases of Englehardt v. The City of Brooklyn, 44 St. Rep., 474, and Delap v. The Same, decided at the March general term, 51 St. Rep., 128, involved substantially the same points as are raised in this case, and we there expressed our views as to the questions arising here. For the reasons stated in our opinions in those cases, the judgment herein appealed from must be affirmed, with costs.

Osborne and Yan Wyck, JJ., concur.


author: Van Wyck, J.

text:
    Frank E. Boehncke, App’lt, v. The Brooklyn City Railroad Co., Resp’t.

      (City Court of Brooklyn, General Term,

      Filed March 27, 1893.)

    Railroad — Negligence—Open steps.
    Plaintiff, while entering one of defendant’s cars, was injured by his foot becoming caught in the opening at the back of the step. It appeared that for some years closed hacked steps were in common use in the city, and that some of defendant’s cars had them. Held, that whether or not defendant exercised ordinary care in having an open hacked step on this car was a question for the jury, and that it was error to take it from them by charging that the step was not defective.
    Appeal from judgment in favor of defendant, entered upon verdict. .
    Action for injuries sustained by plaintiff one of defendant’s cars, by reason of his foot slipping into the opening at the back of the step and being caught there when the car started. The court charged the_ jury in part as follows :
    “ Gentlemen, I charge you on the evidence in this case (and as I said before you must take the law from me), that there was no defect in the step of this car. And I so charge you, because it appears that a similar step is in general use on horse railroads in this city, and no accident has ever happened by the use of said step or has ever been known to have happened.,
    “ Nevertheless, in deciding the facts in this case, you have a right to consider and decide, whether this plaintiff was injured by reason of the fact that his foot was caught in the step of the car. You have a right to consider and decide that fact on the question of his negligence, whether he was careless or not, and on the question whether there was carelessness on the part of the conductor.”

      Edgar Bergen and A. H. Dailey, for app’lt; Moore & Wallace, for resp’t.
   Van Wyck, J.

There is testimony in this case, assuming the truth thereof, which shows that the driver of defendant’s car, in response to plaintiff's signal, brought his car almost to a stop; that plaintiff, in his attempt to get aboard, placed liis foot on the step,, when his foot slipped" into the . opening at the back of the step,, and was caught so tight therein that he could neither get on nor get his foot detached from the car, and was injured thereby; that the step was an open backed one, there being no riser between the tread of the step and the platform; that, for seven years in the leading cities of the country, and for five years in Brooklyn, closed backed steps were in common use on horse cars, and for a number of years were, and still are, in use on part of the cars of defendant ; that there was a double object for the use of such steps, viz.: to strengthen them and to prevent the feet of passengers from slipping through the space between the tread of the step and the platform. Whether or not the defendant exercised ordinary care in "having an open backed step on this car, under such circumstances, was, in our opinion, a question for the jury. The fact that the other kind of step was in common use and for the purpose of preventing just such accidents, would justify a finding of the jury that defendant was negligent in respect to this step, and we think it was error for the court to take the question from them. Hegeman v. The West. R. R. Co., 13 N. Y., 9; Smith v. N. Y. & H. R. R. Co., 19 id., 127; Boyce v. Manhattan R. Co., 118 id., 314; 28 St. Rep., 692.

Judgment .and order must be reversed, with costs to appellant to abide the event, and new trial ordered.

Osborne, J., concurs.


text:
    John Heinlein et al., Resp'ts, v. James Murphy et al., Impl’d, App’lts.

      (City Court of Brooklyn, General Term,

      Filed March 27, 1893.)

    1. Mechanic’s lien — Mat be filed before all the work is done.
    A contractor can file a valid mechanic’s lien for the whole contract price before all the work is done, or all the ma1 erials furnished, provided the balance of the contract is thereafter completed according to the terms thereof.

      %. Same — Action on bond.
    Where a bond has been filed to discharge the lien, the lienor may first sue and recover judgment against the owner, and, being unable to collect the same, may then sue the sureties on the bond.
    3. Same — Limitation.
    The lien is not discharged by lapse of time, where the action against the owner was brought within one year from the time it was filed.

      Appeal from judgment in favor of plaintiffs in an action against the sureties on a bond given to discharge a mechanic’s lien.

      II. C. Conrady, for resp’ts; Dana & Clarkson, for app’lts.
   Van Wyck, J.

The plaintiffs having recovered judgment against the owner on a claim for which a mechanic’s lien had been filed, and being unable to collect the same, then brought this action against the sureties on the bond given to discharge the lien, and recovered judgment against them for the amount of the claim and interest, and from this latter judgment this appeal is taken. The appellants’ counsel contends that the same should be reversed on several grounds, but we are unable to agree with his propositions for the following reasons: We think a contractor ■can file a valid mechanic's lien for the whole contract price before all the work is done, or all the materials furnished, provided the balance of the contract is thereafter fully completed according to the terms thereof. Laws 1885, chap. 342, §§ 1 and 4; Van Clief v. Van Vechten, 130 N. Y., 571; 42 St. Rep., 736. In our opinion, the plaintiff was regular in first suing and recovering judgment against the owner, and, being unable to collect the same, then in suing the sureties on the bond given to discharge the lien, though we do not feel called upon to decide whether or not the bondsmen could have been made parties to the first action. The first action having been brought within a year from the date when the mechanic’s lien was filed, it was not discharged by lapse of time. Section 24, subd. 4. Then again, in § 24, subd. 6, it seems to have been contemplated that the liability of the sureties should be predicated upon a judgment recovered on the mechanic’s lien against the owner. Lawson v. Reilly, 13 Civ. Pro., 290. It is very questionable whether appellants can complain for the first time on appeal, that the" action was not brought against the sureties within a year from the date of filing the lien, when they raised no such question on their motion to dismiss, or by suitable requests for findings before the trial court. If any such question had been suggested before the trial court, it might have been met by showing an order of the court extending the time to bring the action. Section 4, subd. 4. It is true that plaintiffs agreed, in consideration of the assignment of an alleged claim of $2,000, and the payment thereof to them, to release the sureties from their obligation, but the assignment was never made, and no payment was ever made, and, as a consequence, the sureties were not released.

The judgment must be affirmed, with costs."

Osborne, J., concurs.


author: Van Brunt, P. J.

text:
    The Hecla Consolidated Gold Mining Co., Resp’t, v. William L. O’Neill, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    1. Judgment — Demurrer.
    Where the interlocutory judgment sustaining a demurrer to the answer with leave to amend on terms directs that, in default of such amendment, judgment be entered for the relief demanded in the complaint, the plaintiff, upon such failure to amend, may enter judgment without further direction by the court, although the action is an equitable one.
    2. Costs — Appeal.
    An objection to the taxation of costs cannot be raised on appeal from the final judgment, for the reason that the proceedings upon the taxation form no part of the judgment roll; if the costs were inserted without taxaati >n it is simply an irregularity on the part of the clerk which must be corrected upon motion.
    Appeal from a final judgment taken on demurrer, without leave of the court, and entered as of course by the clerk in like manner as on a default as if the action were on contract, while, in fact, the action is an equitable one against a trustee for specific performance.

      W. L. O Neill, for app’lt; J. N. Hayes, for resp’t.
   Van Brunt, P. J.

This action was commenced to procure equitable relief against the defendant. A demurrer was interposed to the defendant’s answer, which was duly sustained, and an order and interlocutory judgment were duly entered, directing the entry of final judgment for the relief demanded in the complaint, with costs, unless the defendant should serve an amended answer and pay certain costs within ten days. The defendant appealed from the interlocutory judgment so entered to the general term, and subsequently, the defendant having failed to serve an amended answer, or pay the costs, or stay the plaintiff pending his appeal from the interlocutory judgment, a final judgment was'entered for the relief demanded in the complaint, and from this final judgment this appeal was taken.

The grounds which are presented upon this appeal are: First, that the clerk had no jurisdiction to enter a judgment without an application having first been made to the court; and, second, that the costs which were inserted in the final judgment were not taxed or adjusted by the clerk in any way as required by the provisions of the Code. It is urged that, this being an equitable action, and not one on contract, the plaintiff was not entitled, as of coarse, to final judgment, without the direction of the court for such judgment against the defendant upon an alleged default; and it is claimed that there was in fact no such direction; and, farther, that there was no direction that the plaintiff was entitled to costs. Upon an examination of the record, it will appear that these points are manifestly not well taken. Upon the trial of the demurrer, there was an application for judgment because of the insufficiency of the answer; and the court, having held the answer to be insufficient, by sustaining the demurrer, directed an interlocutory judgment by which the demurrer was sustained, with leave to amend upon terms, and, in default of such amendment, directed judgment to be entered for the relief demanded in the complaint, with costs as taxed. This seems to have been a compliance with the provisions of the Code regulating the practice in cases "of this description.

The point as to the taxation of costs cannot be raised upon appeal from the final judgment, for the simple reason that the proceedings upon the taxation of costs formed no part of the judgment roll; and, if the costs were inserted without taxation, it was simply an irregularity upon the part of the clerk, which must be corrected upon motion. There would seem, therefore, to be nothing raised upon this appeal which in any way interferes with the validity of the final judgment as entered. The judgment should be affirmed, with costs.

O’Brien and Follett, JJ., concur.


text:
    Catharine Mittnacht, App’lt, v. James J. Slevin, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    1. Party wall — Injunction—Height op wall.
    A party wall agreement recited that defendant was about to erect a five-story building on his lot, but contained no restrictive words prohibiting the use of the wall for a building of a greater height. Held, that under these circumstances defendant had a right to increase the height of the wall, provided such increase could be made without detriment to the strength of the wall or to the property of the adjacent owner, and that an injunction would not lie to prevent his doing so.
    2. Same — Evidence.
    Where a party wall agreement is not ambiguous evidence as to the intention of the parties at the time of making it is immaterial.
    Appeal from judgment dismissing the complaint.

      Ernest G. Stedman (John Larkin, of counsel), for app’lt; Goebel & Raegener (Louis C. Raegener and B. B. Kenyon, of counsel), for resp’t.
   Van Brunt, P. J.

This action was commenced to restrain the defendant from building a certain party wall six stories high. It appeared upon the trial that the parties to the action were the owners of adjoining premises, known as Nos. 23 and 25 Spring street They executed a party-wall agreement, by which, after reciting the ownership of the premises known as No. 25 Spring street by the defendant, and the ownership of No. 23 Spring street by the plaintiff, and that the defendant was about to erect on his said lot of land a five-story building, it was agreed between the parties that the easterly wall of the building thus to be erected by the defendant should be a party wall, and should stand half on the land of each of the parties thereto to the whole depth of the lots of said respective parties, and it was provided as follows: First That the defendant might, in the erection of his said building, build one-half of the easterly wall thereof on the land of the plaintiff to the whole depth of the lot, the foundation wall being twenty inches in thickness below the curb, sixteen inches in thickness up to forty feet above, and twelve inches in thickness above that; and that when "the wall should be built and completed, the plaintiff should pay the defendant the sum of $500 in full for her share of the cost of the wall, and said wall should be and remain a party wall so long as said building should stand, and the plaintiff should have the right to use the wall as a party wall on payment being made as aforesaid; and that, in case of a partial destruction of said wall by fire or otherwise, the same should be rebuilt at the joint expense of each of the parties thereto. The party wall was subsequently built, and the plaintiff erected a fiverstory and the defendant' a six-story building; and the question presented is, whether the plaintiff had a right to enjoin the construction of the additional story by the defendant upon his building, it being claimed upon the part of the plaintiff that he is restricted to a five-story building by the terms of the agreement.

We fail to find any such restriction contained in the agreement. It was entirely immaterial what the defendant contemplated, at the time of entering into the agreement, in respect to the height of the building which he was about to erect, because, the wall being a party wall, he had the right to increase the height of the wall, provided such increase could be made without detriment to the strength of the wall or to the property of the adjacent owner. Brooks v. Curtis, 50 N. Y., 639. And this has become the established rule in reference to the owners of party walls in this state.

Therefore, unless the agreement contained restrictive words prohibiting the use of the wall for a building of mqre than five stories in height, the defendant, if he had originally constructed a five-story building, would have the right to put an additional story upon it, unless he endangered the safety of the wall, which is not claimed. Therefore, the recital as to what was contemplated at the time of entering into this party wall agreement could not in any wise restrict the rights which had been conferred by the active portions of the agreement itself. We think, therefore, that there was no ground for the interference of the court, and that the defendant had the right to increase the height of the wall as he did.

As to the question upon the construction of the agreement, and the evidence attempted to be introduced for the purpose of showing the intention of the parties, such evidence was entirely immaterial. The agreement is not in any way ambiguous. It does not need construction, and, as far as this question is concerned, it is entirely immaterial, as already observed, what was in the contemplation of the parties at the time of entering into the agreement as to the height of the building to be erected. They intended to enter into the party wall agreement which they did, and the rights thereby conferred cannot be taken away by construction or evidence as to intention.

The judgment should be affirmed, with costs.

O’Brien and Follett, JJ., concur.


author: Follett, J.

text:
    Cornelius W. H. Elting, App’lt, v. Charles W. Dayton, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    Pleading — Amendment.
    In an action on a building contract the complaint alleged performance. The referee found that the work was not completed within the time agreed, but that defendant had cmsed the delay and had waived strict performance and gave judgment for plaintiff which was reversed on appeal because of the variance between the pleading and proof. Held, that the plaintiff should be allowed to amend the complaint by alleging such delay and waiver on payment of costs of the reference and appeal. ,

      Appeal from order denying leave to amend the complaint.
    February 25, 1885, the plaintiff, a builder, entered into a contract with the defendant, the owner of five houses, to repair them, according to plans and specifications, for $9,726, on or before April 20, 1885. The work was not in fact completed until May 15, 1885. The defendant paid towards the contract price, March 25, 1885, $2,000; April 10, 1885, $2,000; May 8, 1885, $2,000. August 25, 1885, this action was begun to recover $3,726, the remainder of the ■ contract price, and $500 for extra work, which was set up as a first cause of action. In the first count the plaintiff averred that he had performed his' contract As a second cause of action, it was alleged that Hart.Z. Norton had done work and furnished materials for the buildings for which the defendant, promised to pay $600, and that the claim therefor had been assigned to the plaintiff, who demanded judgment for $4,826. The defendant admitted the making of the contract with the plaintiff as alleged, and that he had paid $6,000 thereon. He denied that, the plaintiff had performed his contract, and also denied that he was indebted in the sum of $500 for extra work. The defendant, further denied that he had made a contract with Norton, and was indebted on account of work performed thereon in the sum of $600. As a second defense, and as a counterclaim, the defendant averred that the plaintiff had not performed his contract in a good and workmanlike manner, and had failed to complete it within the time limited, to his damage in the sum of $2,500, for which he demanded judgment. The case was tried before a referee, who found that the work was not completed within the time agreed, but that the delay was caused by the defendant’s ordering additional work, which was performed by the plaintiff, which was worth $440. He also found that. Norton had, under his contract, done work for the defendant at the agreed price of $600, and that the claim had been assigned to the plaintiff. He disallowed the defendant’s counterclaim, and ordered a judgment for the plaintiff for $4,766, which was reversed by the general term, and a new trial granted.
    The reversal was placed on the ground that, the plaintiff having alleged performance,, and not having averred an extension of time therefor, he could not, as against the objection and exception of the defendant, without amendment of the complaint, recover on the theory that strict performance had been waived. Biting v. Dayton, 43 St. Rep., 363. After the new trial was ordered, thé plaintiff moved at special term for leave to amend his complaint, by averring that he was prevented from performing his contract within the time limited by reason of the additional work ordered and required, and that defendant had waived the completion of the work within the time mentioned in the contract.

      Augustus H. Van Buren (John J. Linson, of counsel), for app’lt; J. F. Steir (William H. Townley, of counsel), for resp’t.
   Follett, J.

“ The court may, upon the trial, or at any other stage of the action, before or after judgment, in furtherance of justice, and on such terms as it deems just, amend any pleading * * * by inserting an allegation material to the case.” Section 723, Code Civil Pro. After this case had been fully tried on the merits, the referee found that the owner of the buildings, by ordering additional work and changing the plans, prevented the plaintiff from performing the contract within the time limited, and had waived strict performance. If this be true, and for the purposes of this motion we must deem it so, the plaintiff ought not to lose his labor and materials because of the mistake in the complaint. The omission or error which the amendment is designed to remedy is one of those which it is the object of the section to permit the court to rectify. It is said by the counsel for the respondent that the amendment should not be allowed, because a new suit on the cause of action would be barred by the statute of limitations. Although some laches has been shown on the part of the plaintiff, this is a strong reason for granting, instead of refusing, the relief. The only question is one of terms, and we think the proposed amended complaint should be received by the defendant, upon the payment of the costs of the reference and of the defendant’s appeal to the general term. The order should be reversed, with ten dollars costs and printing disbursements, and the motion granted, upon payment of ten dollars costs, and the proposed amended complaint be allowed to stand, upon the.payment by the plaintiff of the costs and disbursements of the reference, and of the defendant’s appeal to the general term.

Van Brunt, P. J., and O’Brien, J., concur.


text:
    Joseph Keit, Resp’t, v. David Wyman, Impl’d, App’lt.

      (Supreme Court, General Term. First Department,

      Filed February 17, 1893.)

    Conspiracy — Recoveby against one dependant.
    In an action against two or more defendants for conspiring to commit a wrongful act which is capable of being committed, and was in fact committed by one alone, a recovery may be had against the one who committed the act.
    Appeal by defendant Wyman from a judgment in favor of' plaintiff, entered on verdict, and from order denying motion for a new trial.

      J. Woolsey Shepard, for app’lt; Maurice S. Be Tries (Abraham Levy, of counsel), for resp’t.
   Follett, J.

The complaint charges that the defendants wilfully and maliciously conspired together to injure the reputation and business credit of the plaintiff by charging and circulating among the plaintiff’s acquaintances and customers that the plaintiff had cheated and defrauded his former partner, David Wyman, the defendant, and that defendants publicly made such charges. The defendants answered jointly, interposing simply a general denial. On the trial, witnesses called in behalf of plaintiff testified that the defendant Wyman said that the plaintiff was a fraud, and had robbed him. No evidence was given that Keller had uttered slanders against the plaintiff, and, at the close of the plaintiff’s case, the complaint was dismissed as against him, with costs, but the court refused to dismiss it as to Wyman. The defendant testified that he never made the statements. Whether he did or not was submitted to the jury, and they found for the plaintiff, and assessed his damages at $250. The defendant Wyman moved, at the close of the plaintiff’s case, and at the close of the evidence, that the complaint be dismissed as to him, on the ground that no conspiracy was. proved to have been entered into between the defendants. The motion was denied, and the defendant excepted. The defendant insists on this appeal that in such an action a verdict cannot be recovered against one of the defendants.

At common law an action to recover damages for a conspiracy could be maintained only in two cases: (1) A conspiracy to indict for ti’eason ; and (2) a conspiracy to indict for a capital felony. Savile v. Roberts, 1 Ld. Raym., 374-379; Jones v. Baker, 7 Cow., 445; Verplanck v. Van Buren, 76 N. Y., 247; 2 Selw. N. P., 13th Ed., 1004. In the technical action for a conspiracy above described, a recovery could not be had against one defendant. Savile v. Roberts, supra. It is elementary law that, in an action brought against several to recover damages for a tort alleged to have been committed by all the defendants, a judgment may be recovered against one. Conspiring to commit a tort is not actionable unless a wrong is done and damages ensue. Savile v. Roberts, supra; Cotterell v. Jones, 11 C. B., 713; Hutchins v. Hutchins, 7 Hill, 104, 107, 108; Forsyth v. Edminston, 11 How. Pr., 408; Gardiner v. Pollard, 10 Bosw., 674-688; Verplanck v. Van Buren, 76 N. Y., 247-259; Add. Torts, 3d Eng. Ed., 589. In an action in the nature of a conspiracy, brought to recover damages for a tort alleged to have been committed by several in combination, a judgment may be recovered against one. Skinner v. Gunton, 1 Wm. Saund., 230b; Jones v. Baker, 7 Cow., 445; Gaffney v. Colvill, 6 Hill, 567-573; Hutchins v. Hutchins, 7 Hill, 104; Forsyth v. Edminston, 11 How. Pr., 408. In this case, the damages were assumed for a tort which was alleged to have been committed by both defendants, but was proved only against one. Under the authorities above cited, we see no reason to doubt the correctness of the rule laid down by the learned judge at circuit. The learned counsel for the appellant cites Train v. Taylor, 51 Hun, 215; 21 St. Rep., 47, as an authority in support of-his proposition that the judgment cannot be maintained against one of the defendants. It was said in the opinion in that case, by way of argument:

“ This action seems to have been tried upon the theory that a verdict for the plaintiffs might be sustained against one defendant, while another defendant could have a verdict in his favor, and this theory seems to have led to various serious errors in the admission of evidence, which call for a reversal of the judgment. We do not understand that in an action of this character, being an action for conspiracy, and nothing else, a verdict can be rendered against one defendant in favor of the plaintiff, and another defendant succeed.”

That case, so far as can be ascertained by the report, arose out of the following facts: Kendall Bros., a firm, purchased goods of the plaintiff, for which they failed to pay. The firm was indebted to Taylor. The action was brought against him and the members of the firm, in which it was alleged:

“ That it was then and there agreed between them, the defendants, that they, Kendall Bros., should buy goods upon credit from such persons as could be induced to sell them, which said firm could not and did not intend to pay for, and that the firm should sell for cash or promissory notes a part of the goods thus fraudulently obtained, and procure the promissory notes to be discounted, and with the proceeds thereof, and with the cash to be realized from said sale, and with the remaining portion of the merchandise to be purchased, as aforesaid, should pay in full their indebtedness to Taylof. ”

It was also alleged that it was a part of the agreement that Taylor should sustain the credit of the firm, and enable it to make purchases on credit; but by what means he agreed to sustain its credit, or what he did for that purpose, is not disclosed by the report of the case. From the reporter’s note it seems that a verdict was rendered in favor of the Kendalls, and against Taylor, who appealed. It being found that Kendall Bros, had not defrauded the plaintiff in the purchase of the goods, Taylor could not be held liable for participating in a fraud which had no existence. It was neither alleged nor shown that Taylor committed any independent wrongful act which damaged the plaintiff and constituted an actionable tort. The rule laid down, applied to the facts in the case, was sound; but there is no warrant for the assertion that the decision sustains the position that a judgment cannot be recovered against one defendant, and in favor of another, in an action brought to recover damages, in which it is alleged that the defendants combined, confederated and conspired to commit, and did commit, an actionable wrong, which was capable of being perpetrated by the joint act of several, or by. the independent act of one.

There are actionable wrongs which are incapable, from their nature, of being committed by one. A quorum of a board of directors might commit a fraud against the corporation which they represented which could not be perpetrated by a single trustee, and in such a case a judgment against one could not be sustained. In the case at bar, the damages sustained by the plaintiff arose from a wrongful act which was capable of being committed, and was committed, by Wyman alone, for which he could be held individually liable, though Keller was held not liable; The text writers are not agreed as to whether an action can be maintained against two or more defendants to recover damages for slanders which they have agreed to circulate, and do circulate, about a plaintiff, Townsh. Sland & Lib. (4th ed.), § 118; Odger Sland. & Lib. (2d Eng. ed.), 420; Folk. Starkie Sland. & Lib. (Woods’ ed.), p. 434, § 410; Starkie Sland. & Lib. (3d Eng. ed.), 238; and it is not necessary to pass upon this question in this case.

The judgment should be affirmed, with costs.

Van Brunt, P. J., and O’Brien, J., concur.