text:
    Melvin Stephens, Resp’t, v. Robert Lewis Humphreys, Impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

    Fobeclosoee—Sale—Stay—Teems on opening.
    Defendant appealed from a judgment of foreclosure which was affirmed at general term. He then obtained a stay until the amount of an undertaking on appeal to the court of appeals could be fixed, and subsequently a stay for two weeks upon his paying the cost of advertising and the cost of further advertising. His undertaking was approved subject to justification of the sureties. Hot having paid the cost of further advertising, an order was procured requiring him to pay the same at once or the sale should go on, and if paid, that the sale should be adjourned, and providing‘that he should pay the expenses on twenty-four hours’notice. Defendant was twice notified, but paid no attention thereto. One of the sureties justified, and defendant procured an order extending the time for the other to justify, but said order contained no stay. On the last adjourned day, and before the justification was completed, the property was sold, defendant’s counsel attending and being a party to the purchase thereof by a person who gave a check for the deposit on a bank in which he had no account. Held, that there was no stay at the time of the sale; that it was a matter of discretion with the court whether the sale should be set aside, and that it was a proper exercise of such discretion to require defendant to pay the costs óf adjournment, and the referee’s and auctioneer's fees as a condition thereof.

      Appeal by defendant from so much of an order setting aside a sale on foreclosure as imposed conditions that defendant should pay certain costs and disbursements.

      Smith & White, for resp’t; John K. Van Ness, for app’lt.
   Andrews, J.

This action was brought to foreclose a mortgage, and judgment of foreclosure and sale was entered November 7, 1890. From such judgment the defendant Humphreys took an appeal to the general term of this court, where the judgment was affirmed. Subsequently said defendant appealed to the court of appeals, and while such appeal was pending and on September 8, 1891, the property covered by said judgment was sold at public sale by the réferee therein named. Thereafter the plaintiff moved to set aside the sale, and such motion was granted on condition that said defendant should pay $41.50 cost of advertising the adjournment of the sale, $25 to the referee and $17 to the auctioneer, making in all the sum of $83.50. The claim made by said defendant is, that plaintiff’s proceedings were stayed, and that the granting of the order setting aside the sale was a matter of right, and that no conditions should have been imposed. The contention on behalf of the plaintiff is, that there was no stay at the time the sale was made, that it was a matter of discretion with the court whether the sale should be set aside, and that it was a proper exercise of such discretion to require the defendant to make the several payments mentioned in the order appealed from.

The facts are as follows: The original judgment of foreclosure and sale was entered on November 7,1890, and the judgment was affirmed by the general term on June 30, 1891. On July 25, 1891, defendant Humpheys served notice of appeal to the court of appeals, and on August 8,1891, served an order to show cause, with a stay of sale until the amount of the undertaking to be given on appeal should be fixed. On August 10, 1891, an order was entered fixing the amount of the undertaking, to be given within ten days from the date of the order, at $3,000, and staying the sale for two weeks from August 11th, requiring said defendant to pay the sum of $58.90, the cost of advertising, before 11:30 A. M. on August 11th, and also to pay the expense of advertising said further adjournment; and said sum of $58.90 was paid as ordered. On August 19, 1891, said defendant filed an undertaking on appeal to "the court of appeals, which was approved by a justice of this court, subject to the sureties justifying on notice. On August 24, 1891, Humphreys not having paid $27.30, the expense of advertising the notice of adjournment of sale, plaintiff procured an order requiring Humphreys to pay the same by 4 p. m. of August 24th, or that the sale should go on; and providing that if Humphreys paid said $27.30 the sale should be adjourned to September 8, 1891, and requiring said Humphreys to pay the expenses of further adjournment on twenty-four hours’ notice. On August 29, 1891, Humphreys was notified that the expense of advertising the adjournment of sale was $41.50, and requested to pay the same pursuant to the order of August 24th. On September 3, 1891, Humphreys having paid no attention to the above notice, a new one was sent, to the same effect." On August 25, 1891, Humphreys’, attorney served a notice that the sureties on the above mentioned undertaking would justify on August 31st, at 12 o’clock M. On September 5, 1891, upon an affidavit to the effect that one of the sureties on said undertaking had appeared and justified, and that the other surety was absent from the city, and that the defendant had been unable to produce a surety proposed in the place of the absent surety, defendant Humphreys’ attorney obtained an order that the time of said defendant to file and serve a new undertaking on appeal, pursuant to the orders theretofore made, and to give notice of justification of the same or other sureties, be extended to and including September 10, 1891. As above stated, the sale took place on September 8, 1891. On September 14, 1891, the new surety justified and the undertaking was approved. On October 10, 1891, the order was granted setting aside the sale, from a portion of which this appeal is taken.

We are of the opinion that the portion of the order appealed from should be affirmed. It has been decided by the special and general terms of this court that the defence interposed in this action is without merit. The conduct of the defendant in procuring an adjournment of the sale, and failing to pay the expense of advertising such adjournment, as required by an order of the court, was needlessly vexatious. It appears, moreover, that one of the counsel of the defendant Humphreys attended the sale, and was a party to the purchase of the premises by one Farnham, who gave a check for ten per cent, of the price at which the property was knocked down to him, upon a bank in which he never had an account, and where he was unknown. ' Under these circumstances, if the court had the power, it was certainly a proper exercise of discretion to require the defendant to make the payments mentioned in the order appeale 1 from a condition of setting aside the sale.

We are of the opinion that the court did have such power. The original order of August 10, 1891, which fixed the amount of the undertaking, contained a provision directing an adjournment of the sale of the premises for two weeks from August 11th; but the above mentioned order of September 5, 1891, which gave the defendant until September 10th to file and serve a new undertaking, and to give notice of justification of sureties, did not contain any provision whatever adjourning the sale. Plaintiff’s proceedings had not been stayed by the undertaking which had been filed, because one of the sureties had failed to appear and justify. The order of September 5th, which merely extended the time to file and serve a new undertaking, and to give notice of the justification of the sureties, did not of itself operate as a stay of proceedings. The defendant had failed to comply with the order of August 24, 1891, and pay $27.30, the expense incurred for advertising the adjournment to September 8th, although twice notified to pay the same. As the proceedings of the plaintiff were not stayed, and as the defendant had failed, to pay the said $27.30, the plaintiff was legally and morally justified in directing the referee to proceed with the sale.

The portion of the order appealed from should be affirmed, with costs.

Van Brunt, P. J., concurs.


source: Caselaw Access Project

author: O’Brien, J. Van Brunt, P. J.

license: Public Domain

text:
    The Western National Bank of the City of New York, App’lt, v. Frederick Wood, Impl’d, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

    Bills and notes—Bona fide holder—Charge.
    In an action upon a promissory note, the maker proved that the use of the note was restricted at the time it was negotiated, and that_ the bank taking it was not to part with it. The only notice to plaintiff of this agreement claimed was knowledge of a former officer of plaintiff who had severed his connection therewith prior to the transfer of the note to it. The court charged that in order to preclude consideration of such agreement plaintiff must show not only that it was a bona fide holder, but also that it was a bona fide holder without notice. Held, error.
    Appeal by plaintiff from judgment entered upon a verdict, and from an order on motion denying new trial.

      Charles F. MacLean, for app’lt; Smith, Bowman & Close, for resp’t.
   O’Brien, J.

This action was brought to recover the amount of a promissory note, made by the defendant Wood to the order of the defendant Teller, and endorsed by the latter.

The defendant Wood, in his answer, admits the making of the note, admits the endorsement by Teller and the delivery to the plaintiff, but sets up, by way of defense, that the note so endorsed was delivered to the Homestead Bank, from whom the plaintiff received it, as collateral security only for the repayment to the Homestead Bank of certain moneys which that bank had advanced to one Buss who was, at the time, president thereof, to enable him to proceed with the erection of certain houses in the city of New York for the benefit of the Homestead Bank, and that the note in suit was made with the express understanding and agreement between the bank and Buss and this defendant, that payment thereof should not be required until the building should be completed or the permanent loan upon the. houses obtained, and then only should the money so loaned and advanced be repaid out of such moneys obtained upon the loans; that the bank agreed that it would keep and retain the note, and not part with it or allow it or the money secured to be paid thereby to be in any manner enforced against this defendant, and this defendant restricted the said Homestead Bank to such use only of said note at the time he made the same.

That an agreement substantially as set forth in the answer was made between persons who were officers and directors of the Homestead Bank and the defendant Wood, is placed beyond dispute. Appellant claims that evidence to show the purpose for which the note was made and delivered to the Homestead Bank was improperly received, upon the ground that paroi evidence of what was said between the parties to a valid instrument in writing, either prior to or at the time of the execution, cannot be received to contradict or vary its terms.

With this statement of the general rule no fault is to be found. But the appellant clearly overlooks the exceptions and modifications which, from time to time, have been made to this rule, and the distinction in law between oral proof of a restriction upon the use of an accommodation paper and oral proof of the variance or contradiction of its terms. In respect to the former, pointing out the modification in the rule, see the cases of Thomas v. Scutt, 127 N. Y., 133; 38 St. Rep., 692; and Eighmie v. Taylor, 98 N. Y., 288; and as to the competency of paroi proof to show the conditions and restrictions imposed upon notes, see Garfield National Bank v. Colwell, 57 Hun, 169; 32 St. Rep., 929; Isaacs v. Jacobs, 29 St. Rep., 145; and Benjamin v. Rogers, 126 N. Y., 60; 36 St. Rep., 393.

The evidence offered being therefore competent, and having shown that the delivery of the note by the Homestead Bank to the plaintiff was a diversion from the purposes for which the note was originally intended, testimony was further presented with the view of showing that the plaintiff took the same for an antecedent debt, and with notice of all the equities existing between Wood and the Homestead Bank.

Without commenting upon or referring in detail to the testimony relating to the subject of whether or not the note was delivered to the plaintiff for money actually advanced or in payment of an antecedent debt, there being a want of clearness and consequent doubt upon this question, we think that, upon the testimony, it was properly submitted to the jury; and were it not for the manner in which such submission was made, and the introduction of certain testimony, and the effect given to it, as to showing notice by plaintiff of the equities in favor of defendant, we should not be inclined to disturb the verdict of the jury. We think, however, that the charge as made by the learned trial judge, and the manner in which the questions for the consideration of the jury were presented, tended to prejudice the plaintiff.

After presenting the question as to whether or not such note was received by plaintiff in consideration of cash then actually advanced, or in payment for an antecedent debt of the Homestead Bank, the learned trial judge said : “In order to preclude your consideration of the agreement advanced by the defendant, the plaintiff must not only show that it was a bona fide holder, but also that it was a bona fide holder without notice.” Upon that point the evidence introduced on the part of the defendant to show notice of the actual.condition of affairs in regard to the note depends upon the testimony of the defendant himself and that of Mr. Jordan. Again, later on, he says: “ If you find in favor of the defendant upon the bona fide notice question, then it will be necessary for you to consider the evidence in relation to the agreement.” Counsel for plaintiff excepting to the court so charging, that the burden of proof was on it to show that it was a bona fide holder without notice, and requesting the court to charge that the production of the note was evidence of title, and that upon that the plaintiff was entitled to recover on a prima fade case, the defendant, seeing the error into which the court had inadvertently fallen, requested the court to charge that, while the proposition of the plaintiff’s counsel was true until an agreement was proved and a diversion of the note from the purpose for which it was given, then the burden of proof changed from the defendant to plaintiff; that if they believed that an agreement existed and that the note was diverted from the purpose provided for by the agreement, then the burden of proof changed from defendant to plaintiff, and plaintiff must give proof that it paid value for the note in good faith; and the court added, “ and received it without notice.” This last addition of the court to the suggestion of defendant’s counsel, which required the plaintiff, upon proof of the agreement, to show that it received the note without notice of any prior equities, wás not, upon the testimony, as we read it, in dispute. The only evidence of any notice brought home to the plaintiff of the agreement between the defendant Wood and the Homestead Bank, was testimony as to conversations with a Mr. Jordan, who at one time was president of the plaintiff bank. It appears that in February, 1890, Mr. Jordan had gone to the Homestead Bank to discuss the action of the directors in using the bank funds. As to just what information Mr. Jordan then received was a disputed fact upon the trial. Whatever may have been the knowledge he thus derived in February, 1890, the testimony shows that Mr. Jordan severed his connection with the plaintiff bank in March, 1890, before the execution of the note in suit, the transfer of which to the plaintiff took place in April, 1890, or two months after the visit of Mr. Jordan to the Homestead Bank. As Mr. Jordan had severed his connection with the plaintiff bank about a month before the transfer of the note in suit, we do not think that any information which Mr. Jordan had was of a kind that, so far as the note in suit was concerned, would be binding upon the plaintiff. Mr. Jordan, it is true, was at one time the president and, to that extent, the representative of the plaintiff, and notice to him would be notice to the bank. Where, however, his relations with the bank had been severed, which would thus remove the knowledge which he possessed from the plaintiff, we do not think it could be claimed that his prior knowledge could have any bearing or effect in respect to a transaction occurring subsequent to his relations with the bank being severed ; it seeming to us that when Jordan severed his connection with the bank, all connection between the bank and its means of knowledge was severed, so as to exclude all idea of notice to the bank through him. While, therefore, it may have been proper to have allowed evidence of what knowledge Jordan had to be introduced, which, had Jordan remained president of the plaintiff, would have been binding upon the bank, or had the fact thus established been connected by evidence that, although his official relations with the bank had been severed, the knowledge or infer-motion which he possessed had been by him communicated to the bank, then there would have been present in the case some evidence of notice brought home to the plaintiff.

But apart from this, as already said, we think that the charge of the learned judge, in respect to the burden of proof, was very-apt to prejudicially present the plaintiff's rights to their consideration.

In Sprague Nat. Bank v. Haulenbeck, 16 St. Rep., 786, the principles applicable to notes and the burden of proof are thus referred to: “ The plaintiff was presumed to be a holder for value before maturity, in the absence of notice of' evidence of such defense. The want of consideration between the original parties did not change the presumption or require actual proof of the payment of a consideration and an actual transfer before maturity. Being payable at a time after its date, the plaintiff held it clothed with the presumption that it was negotiated for value in the usual course of business, before maturity, and without notice of any equities between the prior parties to the instrument. Such being the rule, it was incumbent upon the appellant to show affirmatively that the plaintiff had notice of the diversion of the paper. The case does not fall within that class of cases cited by appellant’s counsel, where the paper was obtained by duress, fraud or theft. * * ' * ”

The presumption, therefore, being in plaintiff’s favor, there was no burden placed upon it of showing that it was a Iona fide holder, without notice.

It may be claimed, however, that this was cured by the subsesequent request of defendant’s counsel to the court to charge, with some modification, the plaintiff’s request as to the burden of proof.

The proposition of law contained in this request was entirely proper, namely, that upon proof of an agreement and contrary thereto a diversion of the note from the purpose for which it was given, that then the burden of proof changes from defendant to plaintiff, and plaintiff must then show that it acquired it bona fide for value in the usual course of business, while current, and under circumstances which did not impeach its validity.

It is true that in the case of Sprague Nat. Bank v. Haulenbeek, it is stated that it .is only in cases where paper is obtained by “duress, fraud or theft” that the burden is thus shifted from defendant to the plaintiff. We do not understand, however, that that case intended to express all instances in which, upon proof made by the defendant, the plaintiff is bound to assume the burden of showing that it is a holder for value, without notice. As remarked in a Virginia case: “ In the nature of things, it is impossible to lay down any fixed, unvarying rule as to the circumstances which will be deemed sufficient to throw upon the holder the burden of showing that he has given value for a note. The courts must determine, in each case, whether the transaction is of such a character as to rebut the presumption usually arising from the possession of the instrument.” Duerson's Adm’r v. Alsop, 27 Grat., 249.

In most of the States proof of fraud or illegality is required to ■shift the burden of proof, and proof merely of want of consideration or misapplication of the instrument does not shift the burden of proof. We must regard, however, the rule, so far as this State is concerned, to be different; for the authorities hold that a diversion or misapplication of a note will shift the burden of proof upon the holder. Applying these rules to the facts appearing, the possession and production, in evidence of the note in suit imported prima fade that plaintiff acquired it bona fide, for full value, in the usual course of business, before maturity, and without notice of any circumstances impeaching its validity, and that it is the owner thereof and entitled to recover the full amount against all other parties. The defendant, however, upon the proof of a diversion of the note, would have taken from plaintiff the benefit of the presumptions thus arising, and would require of.it to show that it was a bona fide holder without notice.

The questions of fact were so close and doubtful as to require the law in regard to the rights of the parties to be clearly expressed, and if we were at liberty to decide upon the value of the testimony offered, we should be inclined to the view that the testimony supporting plaintiff’s contention that it was a holder for value without notice was stronger and weightier than the testimony upon these points offered by the defendant. The weight of evidence, however, not being so clear and overwhelming in plaintiff’s favor as to justify a disturbance of the verdict of the jury, if other objections to allowing it to stand did not exist, we are brought to the consideration of the effect to be given to the other objections, to which attention has been already called, and which, we think, left the question of the burden of proof in such an unsatisfactory and indistinct form as must have resulted in prejudice to the plaintiff.

Upon the whole case, therefore, and the exceptions presented, we are of opinion that the judgment should be reversed, and new trial ordered, with costs to appellant to abide event.

Van Brunt, P. J.

I concur in result. In many cases the expression is used that under certain circumstances during a trial the burden of proof changes. This is clearly error. The burden of proof always remains the same: It may be that the defendant may tend to establish a set of facts which may answer the presumptions which originally existed in favor of the plaintiff, but this does not change the burden of proof. Such evidence simply tends to fulfil the burden; that is all. The presumptions with which the trial of a case commences remain with it to the end, unless so completely overcome by proof that there remains no question for the jury.

Andrews, J.—I concur in the result.


author: Per Curiam.

text:
    The People ex rel. Duane S. Everson v. Jacob Lorillard et al.

      (Supreme Court, General Term, First Department,

      Filed June 1, 1892.)

    Constitutional law—Laws 1890, chap. 349.
    Chapter 349, Laws 1890. providing for taking land for the Washington bridge, is not unconstitutional.

      (Matter of Lorillard, 36 St. Rep., 331, followed.)

      Appeal from order granting a peremptory writ of mandamus.

      David J. Dean, for app’lt; H. D. Hotchkiss, for resp’t.
   Per Curiam.

The order appealed from provides “ that a peremptory writ of mandamus be issued * * * directed to the counsel to the corporation requiring him to take charge of and conduct * * * any and all proceedings that may be authorized by law for the appointment of three disinterested persons * * * as commissioners of appraisal to ascertain and appraise the compensation to be made to the owners ” of property to be taken adjacent to the Washington bridge over the Harlem river pursuant to chapter 249 of the Laws of 1890.

The sole question presented upon this appeal is as to the constitutionality of the act.

Upon the former appeal this was directly passed upon by the general term of this court, Mr. Justice Daniels having written an opinion which was concurred in by all the judges.

The conclusion reached, which was favorable to the constitutionality of the act, is a controlling and binding authority upon us.

The order appealed from should therefore be affirmed, with ten dollars costs and disbursements.

Yak Brunt, P. J., O’Brien and Barrett, JJ., concur.


author: Bookstaver, J.

text:
    John T. Underwood, Resp’t, v. Stephen T. Smith, App’lt.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    Contract—Restraint of trade.
    Defendant sold to plaintiff his type writing supply business, with all the stock in trade, machinery, etc., except a trademark for linen paper, for the sum of $25.000, and agreed that for the period of fifteen years thereafter he would not “either in his own name or otherwise, directly or indirectly, engage in or aid, or instigate others to enter upon or be interested in any business of like nature to that herein by him sold.” Held, that such contract was not void as in restraint of trade.
    Appeal from an order made at a special term of this court, continuing a preliminary injunction pendente Hie.

      Esselstyn, Ketcham & Safford, for app’lt; Charles Strauss, for resp’t.
   Bookstaver, J.

From the papers it appears that about August 1, 1888, the defendant entered into an agreement with the plaintiff and Frederick W. Underwood, then composing the firm of John Underwood & Co., whereby for the sum of $25,000 he sold to the plaintiff and Frederick W. Underwood his typewriting supply business then carried on at 14 Park place in this city, with all the stock in trade, machinery, tools, fixtures and plant, and all receipts and formulas used in the business and known to defendant, also, the good will of the business, trademarks, labels, patents and applications for patents, excepting only a trademark for linen paper. This large consideration was paid, and the principal inducement to the purchase was, as stated in the agreement itself, because the appellant had “declared his intention to henceforth devote his entire time and attention to other pursuits and not to re-enter said business or any business analogous thereto or .any of the branches thereof,” and agreed “ that for and during the period of fifteen years from and after the date hereof, he will not, either in his own name or otherwise, directly or indirectly, engage in, or aid, or instigate others to enter upon, or be interested in any business of like nature to that herein by him sold to the said party of the second part.”

The plaintiff has become the successor to all the rights and interests of himself and Frederick W. Underwood under this agreement. After it was made and in the year 1891, the defendant entered the employment of the Hammond Typewriter Company, which was engaged in the manufacture of its own typewriting supplies, ribbons, carbons, etc., etc., such as defendant had made when carrying on the business which he had sold to the plaintiff, and such as plaintiff was then making, and he claims that these ribbons at least were made by and under the direction of the defendant Thereupon this action was commenced to obtain a judgment of this court, among other things, to restrain the defendant from doing any of those things which would be a violation of his covenant. A preliminary injunction and order to show cause was obtained, and after a hearing at special term the injunction was continued pendente lite.

The appellant contends that the covenant was too broad and general, and hence void as in restraint of trade. This .question has recently received much consideration in the courts of this state, and the old rule in regard to it has been greatly modified.

The first of these cases is Diamond Match Co. v. Roeber, 106 N. Y., 473; 11 St. Rep., 47. There the covenant was that the defendant should not engage in the manufacture or sale of friction matches within the United States except Nevada and Montana for a period of ninety-nine years, and at the time of entering into the contract the defendant executed a bond in the penalty of $15,000 to pay that sum as liquidated damages in case of a' breach, and the court held that the restraint was partial and the covenant valid, and that the equitable jurisdiction of the court to enforce the covenant was not impaired by the fact that the damages for a breach had been fixed in the bond. In this case the time limited was much shorter than in that' while the exception of two thinly populated and remote districts scarcely sufficed to make any limitation as to place. Yet the court refused to hold that the exception was colorable merely, evidently on account of its reluctance to hold the contract void as being against public policy. Indeed, from the reasoning in that case it would seem that while the early doctrine of the common law that contracts in general restraint of trade are void without regard to circumstances has not been fully abrogated, it has been much weakened and modified.

In the course of the opinion, Judge Andrews said: “It has sometimes been suggested that the doctrine that contracts in general restraint of trade are void is founded in part upon the policy of preventing monopolies, which are opposed to the liberty of the subject, and the granting of which by the king, under a claim of royal prerogative, led to conflicts memorable in English history. But covenants .of the character of the one now in question operate simply to prevent the covenantor from engaging in the business which he sells, so as to protect the purchaser in the enjoyment of what he has purchased. * * * Such contracts do not create monopolies; they confer no especial or exclusive privilege." And this may be said with great justice of the case at bar, because it simply provided that the defendant himself should not enter into this business, he having another business to follow, and there being many others engaged in the same business. This case is. cited and approved in Hodge v. Sloan, 107 N. Y., 244; 11 St. Rep., 770, and Leslie v. Lorillard, 110 N. Y., 519; 18 St. Rep., 520. In the latter case, the Old Dominion Steamship Company bought off a rival and competing company, paid it to cease running, cease competing, and the agreement was held good; the court, by Judge Gray, saying: “ Under the authority of that case, Diamond Match Co. v. Roeber, it may be said that no contracts are void as being in general restraint of trade where they operate simply to prevent a party from engaging or competing in the same business. * * * Under the doctrine of that case, it is difficult to sée how the contracts which are complained of here are open to the objection suggested by counsel, regarded only in the light of what they intended to effect. These contracts removed a business rival whose competition may have been deemed dangerous to the success or maintenance of the business of the Old Dominion Company. They could not, of course, exclude all competition in the business, but would in that particular case.’’ And this applies directly to the case now under consideration, where the controlling, fact for paying the large price which was paid for the business then carried on by the defendant was his declaration of intention to go out of that business and not again to engage in it as a rival, or otherwise.

Tode et al. v. Gross, 127 N. Y., 480; 40 St. Rep., 800, was very similar to the case under consideration in many respects. The defendant was the owner of a cheese factory and was engaged in manufacturing several varieties of cheese by a secret process known only to her and her agents, and entered into an agreement with the plaintiffs to sell them her factory and its buildings, together with the good will, custom, trade-marks and names used in and belonging to said business; she also covenanted to communicate to them the secret of the manufacture, and that she and her agents would refrain from communicating said secret to any one else, and after a certain date refrain from making and manufacturing or vending said cheese and from using the trade-marks or name under a penalty of $5,000, which was named as stipulated damages, to be paid by the defendant in case of a violation of the covenant within five years. Subsequent to the date on which defendant agreed to refrain from manufacturing and selling, and within five years from the date of the contract, two of her .agents sold cheese having the same name and substantially the same trade-marks as that sold by defendant to plaintiff, which was not manufactured by them, but was a product similar to that formerly so manufactured. In the action for an alleged breach of the covenant it was held that it was not opposed to public policy as in restraint of trade; that it was not confined to defendant’s-personal acts but covered as well those of her agents, and that as the actual damages for a breach of the covenant would be wholly uncertain and incapable of being ascertained except by conjecture, it was the intent of the parties to liquidate them when they named $5,000 as stipulated damages, and plaintiffs were entitled to recover that amount. In the Diamond Match Company case the period of time was limited to ninety-nine years, and it was held that that was not in restraint of trade. In this case it was limited to fifteen years. In Tode v. Gross the covenant was held good, although there was no limit as to place and five years limit as to time.

Under these cases, therefore, we think the order granted at special term was proper. The defendant sold his stock in trade, his formulae, his trade secrets, trade marks, patents and good will of the business, with certain exceptions, to the plaintiff. To make-them of full value to him, it was necessary that he should wholly retire from that branch of the business, and refrain from engaging in it, either on his own. account or for others. He was paid for his special knowledge and facilities for doing a particular business- and for the custom which that knowledge and those facilities-brought. To enable the plaintiff to obtain the full benefit of' what he bought and paid for, defendant agreed not to become plaintiff’s rival for a term of fifteen years, and both parties understood that that was not only a necessary but the controlling part-of the entire agreement, without which the agreement would not-have been made, and on the faith of which the plaintiff paid his $25,000. The time during which the defendant was to refrain from pursuing the business of manufacturing and selling typewriting supplies was limited to a period of fifteen years, although, there was no limitation in the covenant as to the place. But it is-to be observed that the defendant did not sell out his entire business or covenant not to pursue the business retained by him; it was limited to the manufacture and sale of typewriting supplies-only. In Oregon Steam Navigation Co. v. Winsor, 20 Wall., 64, Mr. Justice Bradley, in discussing an agreement in general restraint of trade, rests this doctrine on two principal grounds; one is the injury to the public by being deprived of the restricted party’s industry, the other is the injury to the party himself by being precluded from pursuing his occupation, and thus being prevented from supporting himself and family. ” Now this agreement is not open to either of these objections, for by it defendant-reserved to himself a business which he could pursue, and the public were therefore not deprived of his industry; and neither was he precluded from supporting himself and his family, as he-could have still pursued the branch of the business which he reserved to himself. The rule of law in regard to general restraint of trade originated in England at a time when mechanics and tradesmen did not receive such general education as they do now, and when what they received was largely limited to a particular business or occupation; so that when a mechanic or tradesman agreed to give up his business, he was in danger of becoming a public charge, inasmuch as it was difficult for him to obtain work in other trades or occupations. That is far from being the case in this country, where education is so general, and where it is possible for a man of ordinary intelligence to know more or less about several occupations, and -be fitted to carry on either of them.

Order appealed from affirmed, with costs.

Daly, Gh. J., and Pryor, J., concur.


author: Pryor, J.

text:
    Bridget Larkin, Resp’t, v. The New York & Northern Railroad Co., App’lt.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    1. Railboad—Negligence—Trespass.
    Where the public has for a long time, constantly and notoriously, with the acquiescence of the railroad company, been in the habit of approaching its track by a certain trodden path, a person using such path is not a trespasser, and the coihpany is under an obligation to exercise reasonable care to protect such person from injury.
    .2. Same.
    Whether the company knew of such use and assented thereto is a question for the jury.
    3. Same—Contributory.
    Where plaintiff testified that she looked and listened and did not see or hear the engine, and it appeared that the view was obstructed by the station and a curve; that no whistle was blown or bell sounded, and the engine approached slowly, Held, that the question of contributory negligence was properly submitted to the jury, and their verdict should not be disturbed.
    ■á.- Same—Damages.
    Where plaintiff was a woman sixty-four years old, and a good worker, and was injured in the head, lost three toes, suffered great pain, was seven weeks in hospital and has earned nothing since, Held, that a verdict for $3,500 was not excessive.
    Appeal from judgment on trial by jury and from order denying new trial.
    Action for injuries caused-by collision of.defendant’s engine with plaintiff at a crossing.

      Sherman Evarts, for app’lt; Stewart & Macklin, for resp’t.
   Pryor, J.

The learned counsel for the appellant argues that the plaintiff was, at most, a mere licensee, if not in fact a trespasser, when she suffered the hurt, and that, therefore, the appellant owed her no other duty than to abstain from doing her wilful ■or wanton injury.

Upon the evidence the jury were warranted in the conclusion that for a long period of time the public had constantly and notoriously, and with defendant’s acquiescence, been in the habit of approaching its track by the “ trodden path ” which plaintiff took, .and if so, then plaintiff was not a trespasser, and defendant was under an obligation to exercise reasonable care to protect her from injury.” Byrne v. N. Y. C. & H. R. R. R. Co., 104 N. Y., 362; 5 St. Rep., 722; Swift v. R. R. Co., 123 N. Y., 645; 33 St. Rep., 604. Under the circumstances the fact that the plaintiff was an adult is material only in determining the degree of care which, the law exacted of her, and is of no relevancy to the question whether she was a trespasser. And no particular extent of notoriety or definite period of time in the use of an irregular approach to the track is prescribed by the authorities; but the essential fact is, the acquiesenee of the company in conduct which but for such acquiesenee would constitute a trespass. Whether the defendant knew of the habitual use by the public of the footpath pursued by the plaintiff, and assented, to such use, were questions for solution by the jury; and we cannot say that their decision is so clearly contrary to the evidence that it must not be"suffered to stand.

Again, appellant insists that the evidence was insufficient to authorize an inference of its negligence and of the plaintiff’s notinegligence; and that, hence, there was error in the refusal to dismiss the complaint

If, as matter of law, the defendant was not obliged to ring the bell or blow the whistle in approaching the crossing, still it was bound to use reasonable care in so approaching; and.whether defendant observed the precautions required by such care was a. question of fact for the jury. Swift v. R. R. Co., supra. All the circumstances of the situation, including the absence of a flagman, were facts for their consideration in ascertaining the negligence of the defendant. Reid v. R. R. Co., 44 St. Rep., 688. In a charge so clear and impartial that in it the vigilance of counsel could discover no ground of exception, the learned trial judge submitted the question of the defendant’s negligence to the jury; and we cannot affirm of their finding that it is contrary to the decisive weight of evidence; still less^that it was without adequate support-in the evidence.

So, too, upon the question of plaintiff’s contributory negligence; the testimony was so contradictory and the circumstances susceptible of such a diversity of inferences, that the learned trial judge did well to refer the evidence to the jury. Kain v. Smith, 89 N. Y., 375, 384; Stackus v. R. R. Co., 79 id., 464; Hart v. Bridge Co., 80 id., 622.

Appellant’s counsel ingeniously argues that the circumstances admit of no other inference than plaintiff’s negligence; that the approach of the engine was so imminent and obvious that had she looked she could not have failed to see it. But her positive-testimony that, although she looked and listened, she did not see or hear the engine, is not incredible in connection with the circumstances ; the obstruction of view by the station and curve; the omission to blow the whistle or sound bell, and the slow, not to say stealthy, approach of the engine. Counsel’s conclusion from the evidence is: that not only was the whistle blown and the bell rung, but “ that plaintiff paid no attention to them whatever, walking deliberately into the corner of the engine.” As there-was no proof of plaintiff’s intoxication, insanity, or suicidal propensity, we can hardly wonder if the jury failed to appreciate the force of this argument.

Plaintiff was sixty-lour years old, in strong health, a good worker, and earned a dollar ánd a quarter a day. By the injury .she was hurt in the head; lost three toes; suffered great pain, and •still suffers; was seven weeks in the hospital; has not earned a ■dollar since. For these consequences of defendant’s negligence, we are of opinion that a verdict of $3,500 is not so exorbitant .as to imply on the part of the jury passion, partiality or a mistaken view of the evidence.

Judgment and order affirmed, with costs.

Bookstaver and Bischoff, JJ., concur.


author:
Bookstaver, J.
      Pryor, J.

text:
    Samuel Marks et al., App’lts, v. La Societe Anonyme de L’Union des Papeteries, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

      . Service—Exemption—How lost.
    A foreign witness who arrives too late for trial and unnecessarily delays the taking of his deposition de lene esse for use on a new trial, or in another action, and in the meantime transacts business here, thereby loses his privilege, and service on him will not be set aside on the ground of exemption from service of process.
    Appeal from an order made at special term setting aside the service of a summons on the ground that the person upon whom it was served was a resident of a foreign country temporarily within the state for the purposes of attending as a witness.

      David Tim, for app’lts; Coudert Bros. (F. R. Coudert and Joseph Kling, of counsel), for resp’t.
   Bookstaver, J.

Witnesses are entitled to immunity from the ■service of civil process for the commencement of actions while .attending our courts for the purpose of testifying, and this immunity does not depend on statutory provision, but is deemed necessary for the due administration of justice, and extends not •only to witnesses but also to the parties to the action. Matthews v. Tufts, 87 N. Y., 570. It also applies where the witness is a director of a foreign corporation and is served with the summons in an action against such corporation. Sheehan v. Bradford, B. & K. R. R. Co., 3 N. Y. Supp., 790. And it makes no difference whether the testimony is taken on the trial of the action in a court, or de hene esse before a referee or notary. Hollender v. Hall, 18 Civ. Pro., 396.

The only question to be determined, therefore, on this appeal, is whether Engelbert de Limburg-Stirum, who was a director and the president of the defendant society, was actually in this country as a witness at the time of the service of the summons upon him, and for no other purpose. For if he were voluntarily within the state upon private business other than attending trial as a .party to a litigation or appearing as a witness in the courts of this state in other judicial proceedings, he could not claim exemption. Sander v. Harris, 37 St. Rep., 594.

It appears that two actions were commenced in the supreme court by the defendant herein against the plaintiffs; one an action in replevin and the other for an accounting. The replevin action had been reached upon the calendar before the 16th January, 1892. .and was set down for a day certain ; the accounting action had not then appeared upon the day calendar and no trial of it was imminent. On the day last named the defendant’s attorney sent a cable message to Brussels requesting Limburg-Stirum to come to America as soon as possible, with letters, etc. Presumably -this cable was for the purpose of having him here as a witness in the first action.

In obedience thereto, he left Brussels on the 26th January, but •did not arrive here until the 6th February. On his arrival he was informed that the replevin action had been tried and a verdict rendered in favor of the defendants therein and against his company, consequently he was no longer needed as a witness on that trial; and the talcing of his testimony de bene esse after verdict was merely precautionary in view of a possible new trial of that action or in order to have the deposition for use in the action for accounting. Consequently under such circumstances it was his ■duty to have such examination taken with as little delay as possible, and for this purpose he could at once have applied 'to the court for an order for his examination which would have been made returnable within a few days; but from the papers it appears that instead of doing this, negotiations were entered into between the counsel for the respective parties looking to such examination de bene esse, with the result that a stipulation for the taking of the •deposition was entered into on the 2d March and the testimony taken on the 4th of that month. Meanwhile the witness was transacting business with, several persons and firms in this city and vicinity, and plaintiff’s counsel, having learned of this fact, ¡served him with the summons in question on the 27th February, before the giving of the stipulation. It also appears from the ■papers that when the stipulation was given, or about that time, it was stated to plaintiff’s counsel that the witness intended to sail for Europe on the 5th March and had engaged passage for that date, but he did not actually sail until the 12th of that month.

On this state of facts we do not think the service of the summons ¡should have been set aside, for it is apparent, notwithstanding the affidavit of the witness, that he unnecessarily delayed the taking •of his deposition, and attended to business matters while here, and that the object of his stay was at least in part for business purposes. Hence he lost his privilege by remaining in the state an unreasonable and unnecessary length of time. Finch v. Galigher, 25 Abb. N. C., 404; Van Lieuw v. Johnson, referred to in Pearson v. Gier, 66 N. Y., 126. Besides this, the witness remained in this state a week •after the deposition was actually taken, although plaintiff's counsel was informed that he was to sail on the following day; non constat but had plaintiffs known of this intended delay, they would have ■served a new summons upon him.

Wo therefore think the order should be reversed, with costs.

Bischoff, J., concurs.

Pryor, J.

I concur in the decision, but upon the ground that the case is neither within the letter nor the spirit of the law according immunity to witnesses from service of process.

The process was not served upon the witness, but on the defendant corporation, of which the witness was president and director. “ Personal service of a summons upon a defendant being a foreign corporation must be made by delivering a copy thereof to the president,” etc. Code, § 432. Thus, it is the corporation that is served, and not the president to whom the copy-summons is delivered.

The policy of the law is, not to repel foreign witnesses from our jurisdiction by apprehension of personal consequences. But, by the delivery of the summons against the corporation to the president, he incurred no personal peril or embarrassment Indeed,, the interests of justice are promoted, rather than obstructed, by upholding this service, instead of sending the citizen to a foreign country for redress of his grievance.

Sheehan v. Bradford, etc., 3 Suppl., 790, is a special term decision ; and, I think, is unsupported by reason or authority.


text:
    Walter F. Pyne, Resp’t, v. The Broadway & Seventh Avenue Railroad Co., App’lt.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    1. Railroad—Street—Negligence—Evidence.
    In an action to recover for injuries resulting from being knocked down by a horse car, alleged to have been caused by the intoxication of the driver and his careless mismanagement of the car, evidence that upon the same trip he had missed a switch, had failed to respond to the conductor’s signal to stop, and had driven at a rapid rate of speed, is competent on the question of such intoxication. So, also, is evidence that the driver drank at a liquor store just before starting on the trip.
    8. Same—Credibility of witness.
    It is proper in such a case to inquire on cross-examination of a witness for defendant whether he had stated that the company would blacklist him if he gave his testimony according to the facts, as such fact would tend to show his bias and affect his credibility.
    3. Same.
    For the same purpose, evidence of other witnesses that the one before mentioned had stated that if he was independent by having a house and lot in the country he could give his evidence without regard to being blacklisted, is competent.
    4. Same—Contributory.
    A person crossing an ordinary street where there is no steam railway, is only required to look for approaching cars when the situation and surrounding circumstances are such as to require a person of ordinary prudence to do so.
    Appeal from a judgment rendered on the verdict of a jury at a trial term of this court, and from an order denying a new trial on the judge’s minutes.

      Joseph Kunzmann and Henry L. Stimson, for app’lt; Horace Russell, for resp’t.
   Bookstaver, J.

This action was brought to recover damages for the alleged negligence of the defendant’s employees, by which the plaintiff was struck and knocked down by the horses attached to one of its cars going down town, while plaintiff was crossing defendant’s tracks on Broadway between Thirty-second and Thirty - third streets. The plaintiff undertook to show that the driver of the car which ran over him was intoxicated at the time, and that the accident resulted in consequence of his intoxication and consequent careless management of the car. With this end in view, he proved that the driver had missed a switch at Forty-fourth street and Broadway, had failed to respond to the signal of the •conductor to stop the car at Forty-second street, and at various places between Fifty-third and Thirty-third streets had driven at a .rapid rate of speed, and at Forty-second street a passenger had been thrown down in attempting to board the rear platform. Objection was made in each instance by the defendant to the admission of this evidence, sometimes with and sometimes without stating the grounds of the objection, which seemed to have been principally that the occurrences were too remote from the time of the accident. But on this appeal it was argued that it was incompetent to admit evidence of negligence on the part of the driver on other occasions, no" matter how closely connected in point of time with the accident, and that no inference of negligence on the occasion when the plaintiff was injured could legally be drawn from other or prior negligent acts. But this testimony was not admitted with this object in view; it was not to show negligence on other occasions merely, but it was to show a series of acts which, taken together, would lead the jury to believe that the driver was so intoxicated at the time that he could not properly control his horses and car, and that this led to plaintiff’s injuries. We fail to see why this was not competent. -

Indeed, it would be difficult to show drunkenness in any case unless by proof of acts on the part of the person suspected of intoxication from which such an'inference can be made, and it is just as convincing as smelling the breath of the suspected inebriate or seeing the quantity of liquor consumed by him. For it is well known that one may drink sufficiently to-have the fact of having taken liquor manifested by the breath before there is any indication of intoxication. And so, too, the quantity consumed may make one person incapable of the management of himself or his affairs, and the same quantity may have no perceptible effect upon another. Whether any particular person is under the influence of liquor or not, therefore, is better determined by his acts than in any other way, and is of more force than the mere testimony of the witness that a person was under the influence of liquor in his judgment or opinion. McCarty v. Wells, 51 Hun, 171; 20 St. Rep., 630; Peoples v. MacLean, 37 St. Rep., 628. For this purpose these various acts of negligence were properly admitted. Besides, the evidence of careless or reckless driving on the trip in question was competent to be given on the mere allegation of negligence against defendant. Reichman v. Second Ave. R. R. Co., 15 St. Rep., 928, 929. In that case it was said: “Counsel for the appellant makes a further point that the court erred in permitting testimony to be given showing that the conductor of the horse car on the trip cut short the time of other passengers; leaving the car; if such evidence had been adduced for the purpose of showing want of care on the part of the conductor, it. would undoubtedly have been competent.” The fact that the driver drank at a liquor store -just before starting on the trip was admissible as bearing on the driver’s condition at the time of the accident; the effects of drinking are not so transitory as to make-such evidence irrelevant.

The defendant produced one Bidwell as a witness, who was the driver of a “ green car,” as it is termed, who testified that he was-driving such a car on .the night of the accident up Broadway, and saw the plaintiff knocked down; the object of his testimony being to show that the plaintiff’s conduct in crossing the defendant’s track in question was negligent, and he did not exercise due care. On cross-examination the plaintiff was properly allowed to-ask the witness as to whether he had stated that the street railroad company would blacklist him if he gave his testimony according to the facts; it tended to show his bias and affect his credibility.. It is one of the objects of cross-examination to discover the motives in the mind and the prejudice of the witness, for the purpose of reducing the effect which might otherwise be given to the evidence. Miles v. Saclcett, 30 Hun, 69.

In rebuttal of what this witness had testified, the plaintiff called one McAuley, and he was allowed to answer these questions: “Q. Were you with Mr. Pyne on the occasion when Bidwell came to his store on Twenty-third street? A. I was-there. Q. What, if anything, did Bidwell say on that occasion with reference to a house and lot? A. That if he was independent by having a house and lot out in the country he could give his évidence in Mr. Pyne’s case without any regard to-being blacklisted by the railroad company." The latter question was objected to by the defendant on the ground it was-incompetent and collateral; the objection was overruled and exception taken. We do not think that this was error. As-before shown, the plaintiff had the right to show the bias and credibility of the witness, and any party against whom a witness; is produced has a right to show anything which may in the-slightest degree affect his credibility. Miles v. Sackett, supra. The evidence was not for the purpose of impeaching the witness, but with the object of showing his bias, and that he had intimated that he was willing to testify for the plaintiff if, as-he thought, sufficient inducement offered.

The court properly refused to dismiss the complaint. There was considerable conflict of evidence both as to plaintiff’s carefulness and defendant’s negligence; but there was quite sufficient in plaintiff’s favor on both of these questions to make it improper to withhold the case from the jury.

,The defendant’s counsel in due time presented several requests to charge the jury in regard to the plaintiff’s duty to look both up and down the street before attempting to cross it; none of which were charged, but in lieu thereof the court charged : “ If at the time the plaintiff started to cross the street and left the sidewalk the situation and surrounding circumstances were such as to require a person, in the exercise of ordinary prudence, to look up Broadway to ascertain whether there was a car approaching and he failed to do so, then he was negligent; and if such negligence contributed to this injury he cannot recover.” This, we think, fully, clearly and distinctly stated the law regarding the duty imposed upon the plaintiff in respect to looking before crossing public streets or highways, and was almost, in the language of Mocbus v. Herrmann, 108 N. Y., 349; 18 St. Rep., 648. It is true that a different rule prevails in regard .to crossing steam railroads, where the danger is greater. But it has never been held that it was necessary to look both up and down before crossing an ordinary street where there was no steam railway.

We, therefore, think there was no error on the trial of this action which calls for a reversal, and that the judgment should be affirmed, with costs.

Bischoff and Pryor, JJ., concur.


text:
    Edward A. Hayward, App’lt, v. Samuel H. Barron, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.

    Partnership—Participation in profits in payment for services will NOT CONSTITUTE.
    In an action for dissolution of partnership and accounting, defendant denied the existence of a partnership. There was no written agreement, and it appeared that plaintiff never held himself out to outsiders as a partner, but referred them to defendant as the boss; that he enrolled himself as an employee, and he testified that he was to have a share of the profits as compensation for his services, and was not to participate in the losses. Held, that there was no partnership, and that the complaint was properly dismissed.
    Appeal from a judgment entered on the decision of a justice at the equity term of this court dismissing the plaintiff’s complaint on the merits.

      Charles Strauss, for app’lt; Willis M. Tyler, for resp’t.
   Bookstaver, J.

This action was brought for the purpose of securing the dissolution of an alleged copartnership, and an accounting and division of the property. The complaint alleged that the plaintiff and defendant formed a copartnership on the 20th June, 1891; that they owned a large stock of goods, a lease of the premises wherein the business was carried on, and other assets ; that no equitable division could be made without loss; and that on or about the 2d July, 1891, defendant took exclusive possession of the copartnership property and business, and excluded plaintiff therefrom; and prayed judgment that the copartnership be dissolved, a receiver appointed, and the property sold, etc. The answer was a general denial. On the trial, the learned judge found that the plaintiff and defendant were at no time copartners in the business at No. 32 Broadway, New York city, or elsewhere ; that the plaintiff was simply an employee of the defendant, acting as cashier and manager of the defendant's business-for a salary of twenty dollars per week; that- the agreement and understanding between the parties was that after certain indebtedness against the business had been paid off by the defendant, the-plaintiff was to receive a share of the profits only of said business, the same to be given as compensation for services to be rendered; and that he was employed upon his distinct promise to abstain from the use of liquors and to properly attend to the defendant’s-business; that no copartnership was ever made or entered into-between the plaintiff and the defendant; and that the plaintiff never had any interest in the property, the subject of the action, as a partner; also, that there was no agreement on the part of the plaintiff to share any of the losses arising from the conduct of the business, or assume any of the liabilities therefor; and consequently dismissed the complaint And in this, on a careful review of the evidence, we think he was entirely right.

As there was no written agreement between the parties, the question of whether there was a copartnership or not was to be determined largely by their conduct, their manner of dealing with each other, and their manner of dealing with third parties in the presence and with the knowledge of each other. Bindley on Part., '"p. 10 and *p. 84. There was a complete absence of testimony which would show, or tend to show, that the plaintiff ever-intimated to any of the defendant’s employees that he was there as a partner. He stated to Dankowitz, who had the charge of the cigar stand in the buffet, upon his arrival at 32 Broadway, that the cause of his coming there was that Barron, the defendant, had promised him good wages. He informed the witness Minnahan that he was going down to 32 Broadway because he could get along better with Barron, the defendant, than he could with his father; and he never said anything to this witness, an old employee at 32 Broadway, about being a partner. One of his first acts upon entering upon his duties was to enroll his name among the regular employees of the defendant, setting the amount of his salary per week opposite the same. At the end of the week he-also made up a list of the employees of the defendant, stating opposite the name of each the amount to which each employee was-entitled, and headed the list with his own initials and weekly salary.

When people entered the place of business in question and asked for the “boss,” the plaintiff sent such inquirer at once to-the defendant, or informed him of the defendant’s absence. His manner of leaving the said place of business when discharged by the defendant was utterly at variance with the idea of a partnership. Before leaving the store on the night of his discharge he acknowledged to the defendant that he had received his salary. After his discharge and on the same evening, at his father’s place-of business, he told the witness Parker, with tears, “ that he feels; very bad, that it is his own fault, that he has made a fool of himself, and is very sorry. * * * Sorry, because the defendant has discharged him, and also for drinking." Afterwards he returned to the defendant and pleaded for reinstatement in his old position. All of these acts on the part of the plaintiff are entirely inconsistent with the idea of a copartnership.

But upon his own testimony the plaintiff was merely to receive a certain share of the profits in compensation for his services as an employee and was not to participate in the losses; therefore there was no copartnership inter sese; even if, by the utmost stretch of plaintiff’s own testimony, he could be regarded as a partner as far as third parties are concerned. The legal rule, that accepting a percentage of profits in compensation for services does not create a copartnership, is so well settled that it is scarcely necessary to repeat it here. Cassidy v. Hall, 97 N. Y., 159; Conklin v. Tuthill, 10 St. Rep., 624; Richardson v. Hughitt, 76 N. Y., 58; Saller v. Ham, 31 id., 321; Curry v. Fowler, 87 id., 33; Burnett v. Snyder, 76 id., 344; Edwards v. Dooley, 13 St. Rep., 602; De Cordova v. Powter, 8 id., 431; Adams v. Morrison, 22 id., 324; Burckle v. Eckhart, 3 N. Y., 138; Eager v. Crawford, 76 id., 97. It is clear from the testimony that the defendant did not intend to enter into a copartnership with the plaintiff. To constitute a copartnership there must- be the assent of the individuals to the creation of "that relation between them. Central City Savings Bank v. Walker, 66 N. Y., 431.

It is true that the plaintiff and his father, during the course of their testimony, frequently used the word “partner," but that ought not to have prevailed over the clear and direct testimony offered by the defendant, and the acts of the plaintiff before stated.

We therefore think there were no errors in finding or refusing to find as the learned judge did. An appellate court will not reverse on the findings of fact below unless they were made without evidence to sustain them. Where there is a conflict of evidence, the findings of fact will not be disturbed. Lee Bank v. Satterlee, 17 Abb. Pr., 13; N. Y. Car Oil Co. v. Richmond, 10 id., 192; Ritter v. Cushman, 35 How. Pr., 286; Pearson v. Fiske, 7 Abb. Pr., 420. In the last of these cases, which was before the general term of this court, the correct rule of law in this respect is laid down fully and concisely as follows, Chief Judge Daly, in writing the opinion, saying: “ An appellate court will not assume the office of a" jury or referee, etc. * * * They will reverse for the want of evidence, or where the finding is against evidence in respect to which there is no contradiction nor conflict; and in extreme cases, though there may be some conflict or contradiction in the testimony they will set aside the verdict, finding or report if after full and careful deliberation they are convinced that it must have been induced by partiality, prejudice or corruption;” none of which facts appear in this case.

We have carefully examined the exceptions taken to the admission or exclusion of evidence, but find that there was no error committed in regard to any of them which could by any possibility have affected the result in this case.

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

Pryor, J., concurs.


text:
    Julia M. Crane, Resp’t, v. Seneca D. Powell, App’lt.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    1. Statute of frauds—Pleading.
    The defense of the statute of frauds cannot be raised under a general denial, but must be pleaded to be available, unless the complaint itself shows that the contract sued upon is within the statute.
    2. Contract—Board—Damages for breach.
    "Where a boarder under contract to board for a certain time refuses to-remain, the boarding house keeper is not obliged to tender performance, but may recover the profits she would have made had he remained.
    3. Same.
    It is no defense to such action that the boarding house keeper thereafter surrendered possession of the premises, as this may justly be regarded as-an effort on her part to reduce the damages sustained, and as equivalent to letting them on his account at the price they cost her.
    Appeal from a judgment entered, upon the verdict of a'jury at a trial term of this court, and from an order denying a motion for a new trial.

      C. Godfrey Patterson, for app’lt; John W. Weed, for resp’t.
   Bookstaver, J.

This action was commenced by the plaintiff to recover damages for a breach of contract which she claimed to have made with the defendant to provide him furnished rooms, attendance and board for a period of one year from the 1st November, 1887. From the evidence it appears that this alleged contract was entered into towards the latter part of October of that year and a few days before the 1st November. It was not in writing. Although this fact did not appear in the complaint, and the validity of the contract was not averred in the answer, before the plaintiff had fully rested the defendant moved to-dismiss the complaint, and at the close of the case moved for a direction of a verdict on the ground that the contract testified to-by the plaintiff was invalid under the statute of frauds. These motions the court denied, as would appear from the case and especially from the charge, on the ground that the defendant had not pleaded the statute and could not avail himself of it under a general denial. For a long time it was thought that where the complaint alleged the existence of a contract without stating whether or not it was in writing, the statute of frauds could be taken advantage of under a general denial, for the reason that the allegations of the complaint implied of a legal contract and that the plaintiff -was bound to prove such a contract by proving the writing, or if it turned out to rest in paroi, .that then it could be attacked on the ground that it was obnoxious to the statute of frauds. Berrien v. Southack, 26 St. Rep., 982; Harris v. Knickerbacker, 5 Wend., 638; Gibbs v. Nash, 4 Barb., 451; Cary v. Western Union Tel. Co., 20 Abb. N. C., 333; 15 St. Rep., 204; Marston v. Swett, 66 N. Y., 206, and many others which might be cited. But we think the later decisions in the court of appeals have overruled this doctrine. In Porter v. Wormser, 94 N. Y., 450, it was said: “ The general rule is that the defense of the statute of frauds must be pleaded except where the complaint on its, face discloses a case within the statute.

“ It cannot be doubted that if the defendants had brought am action to recover a balance claimed to be due on the contract for the purchase of the bonds without disclosing whether the contract was oral or written, the plaintiff would have been bound to plead the statute to avail himself of its protection.” In Hamer v. Sidway, 124 N. Y., 548; 36 St. Rep., 888, an oral promise was made by the defendant’s testator to pay plaintiff $5,000 if he refrained from drinking, etc., for more than a year. ‘ In deciding that case Parker, J., said: “It will be observed that the agreement which we have been considering was within the condemnation of the-statute of frauds, because not to be performed within a year and not in writing. But this defense the promisor could waive, * * * were it otherwise the statute could not now be invoked in aid of the defendant. It does not appear on the face of the complaint that the agreement is one prohibited by the statute of frauds, and therefore such a defense could not be made available unless set up in the answer." In Wells v. Monihan, 129 N. Y., 161; 41 St. Rep., 409, it was sought to defeat the action on the ground that the paper upon which the action was brought was void by the statute of frauds in that by its terms it was for the debt, default or miscarriage of another, and no consideration was expressed in the instrument itself. But it was held that in so far as the defense rested: upon the statute of frauds it must fail for two reasons, the first of which was that no such defense had been pleaded, and that it was not raised by the averments of the complaint; and without one or the other of these conditions the defense, if it existed, could not be made available. The language of the decision is very broad and comprehensive, and we think conclusive upon this-question, and that the court properly refused to dismiss the complaint or direct a verdict in favor of the defendant on that ground.

The defendant also moved to dismiss the complaint before the plaintiff had fully rested, on the ground that it appeared that she-had surrendered possession of the premises in July and was not able to perform for the remainder of the term; and also on the ground that she had proved no damages. Neither of these grounds for dismissal was argued upon the appeal, nor do we well see how they could be successfully maintained. The lease defendant claimed to have had assigned to him merely as security for moneys which he had advanced to the plaintiff, and reassigned it to her before he left her premises; and while the evidence as to damages was somewhat loose, it was the best which could be given under the circumstances.

After the defendant had introduced his evidence, the court charged the jury on the question of the statute of frauds in exact accordance with the decisions of the court of appeals as above-stated, and directed them that if they found a verdict in favor of plaintiff, they should state how much if anything they found for each month of the term after the defendant had left plaintiff’s house; and they thereafter returned with a verdict by which they found that the plaintiff was entitled to the sum of $270.83 for the; month of June, 1888, $106.50 for each of the months of July, August and September, 1888, and $53.25 for the month of October, making a total of $643.58, together with $141.62 interest, or an aggregate of $785.20. The defendant made a motion for a new trial, among other things, on the ground that the damages were excessive. The jury allowed the full amount of the contract price for the month of J une, which was to include the board of defendant and his assistant, notwithstanding the court charged that for that month the value of the defendant’s board should be deducted. This she testified cost her about four dollars a week each person, which for the defendant and his attendant would have amounted to thirty-two dollars for that month, and consequently should be deducted from the $270.83, leaving $238.83 for the month of June. As for the months of July, August and September, the amount allowed was only for the profits the plaintiff would have made had the defendant performed his agreement. We think, on the evidence, and in consideration of the fact that the testimony tended to show no occupants could be procured for the rooms during these months, this was just and fair. As to the month of October, they found but $53.25, and that probably was because the court charged the jury that for that month there was no evidence but that she could have obtained boarders had she been in a position to do so, and consequently, acting upon that suggestion, the amount was reduced as above stated.

But defendant contends that nothing whatever should have been allowed after the month of June, because she had put it out of tier power to fulfill her contract by surrendering the premises in July, but the evidence shows that the defendant before that time, and in the latter part of May, absolutely refused to remain with her longer and moved away from her premises. At that time she was ready and willing to perform her contract, and continued ready and willing for more than a month thereafter. Under such a condition of facts, it was not necessary for her again to tender performance on her part. The surrender of her house to her landlady instead of depriving the plaintiff of all claim for damages, may justly be regarded as an effort on her part to reduce the damages sustained by her, and it was equivalent to letting them on his account at the price they cost the plaintiff, leaving her claim for the stipulated payment to be made by the defendant reduced by the amount of rent saved by the surrender.

The judgment should therefore be modified by reducing the same by thirty-itwo dollars, with interest thereon from the 1st day of July, 1888, and as so modified should be affirmed, with costs, for the reason that the defendant, upon the coming in of the verdiqt, did not point out the excess in the amount found for the month of June over that which the judge had charged; had his attention been specifically called to this, he would doubtless have reduced the judgment at once without the necessity of an appeal.

Bischoff and Pryor, JJ., concur.


text:
    Warren S. Sillcocks, Resp’t, v. The New York Elevated Railroad Co. et al., App’lts.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    1. Railroad—Elevated—Evidence.
    In an action against an elevated railroad, opinions of experts as to whether the erection and operation affected the fee value of abutting property is inadmissible.
    2. Same—Benefits.
    It is error in such an action to exclude evidence of benefits resulting from the operation of the road.
    Appeal from judgment in favor of plaintiff.
    Action in equity against the Mew York Elevated Eailroad. Company and the Manhattan Bail way Company for an injunction against the maintenance and operation of defendants’ railroad in Park Eow, in front of plaintiff’s property, and for past damages. The plaintiff obtained judgment awarding an injunction, and damages, from which the defendants appeal.

      Brainerd Tolles, for app’lts; Leo C. Dessar, for resp’t.
   Bookstaver, J.

This action was tried several years ago, and before the law in regard to opinion evidence and accruing benefits, was settled.

In order to establish the fact and amount of damages to his property from the erection and operation of defendants’ railway, plaintiff called George B. Curtis, a real estate expert, and asked him the following question:

“ Q. And in your opinion do these physical effects affect the-fee and rental value of these premises? A. It has an effect upon the fee and rental value in my opinion.
“Q. What is that effect?" A. To lessen the rental and fee value.”

Again, after testifying that the increase in values had been greater on Printing House Square and several other places than it was on Park Row, he was asked:

“ Q. Why, in your opinion, based upon your experience, has not this property increased as much over the price of 1872 as the other properties you have mentioned?” and he answered: The maintenance and operation of the elevated railroad is the' reason, in my opinion, and the interference with air, light and so forth.”'

Both of these questions were duly objected to by the defendants as incompetent and irrelevant, as calling for the conclusion of the witness upon a subject upon which it was possible for the court, and proper for it, to form its own conclusions, and also as being indefinite and uncertain. The court overruled the objections, and allowed the answers to be given. These answers were clearly the opinion of the witness, and fall under the condemnation of McGay v. Metropolitan El. R. Co., 40 St Rep., 668; Wallach v. Manhattan R. Co., id, 669; Delafield v. Manhattan R. Co., id., 670; and also of McGean v. Manhattan R. Co., 117 N. Y., 219; 27 St. Rep., 337; Avery v. N. Y. Central R. R. Co., 121 N. Y., 31; 30 St. Rep., 471; Roberts v. N. Y. El. R. R. Co., 128 N. Y., 455; 40 St. Rep., 454; Doyle v. Metropolitan El. R. Co., 128 N. Y., 488; 40 St. Rep., 474; Cray v. Manhattan R. R. Co., 16 Daly, 510; 35 St. Rep., 32; aff’d, 128 N. Y., 499; 40 St. Rep., 478.

The court also ruled that evidence of benefits was to be disregarded, and refused to find the fact of benefits; which was error under Purdy v. Man. El. R. Co., 36 St. Rep., 43; McGay v. Met. Elev. R. R. Co., supra; Welsh v. N. Y. El. R. R. Co., 35 St. Rep., 35; Gray v. Manhattan R. Co., supra.

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

Bischoff and Pryor, JJ., concur.


author: Daly, Ch. J.

text:
    Samuel P. Ferree, App’lt, v. James G. Wilson, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    Contract—Advertising—Quantum meruit.
    Plaintiff agreed to publish, defendant’s advertisement in certain magazines for six months for a specified sum, which was to be paid before the termination of the period specified. Defendant did not pay as agreed, and plaintiff published five times. Held, that as defendant committed a breach of the contract in failing to make payment plaintiff could stop the work and recover for what he had actually done, but was not bound to discontinue immediately.
    Appeal from order of the general term of the city court of New York, reversing judgment in favor of plaintiff entered upon the verdict of a jury, and reversing order denying defendant’s motion for a new trial, and ordering a new trial.

      H. G. Ward, for app’lt; Francis Forbes (Clarence Edwards, of counsel), for resp’t.

       Reversing 41 St. Rep., 463.

   Daly, Ch. J.

The question discussed in the trial court was whether the plaintiff was bound under his contract with the defendant to publish the advertisement for six months or seven months; that is to say, whether there was but one agreement to publish, from October 1, 1888, to April' 1, 1889, or two agreements, one for October and another for six months thereafter. The advertisement was actually published for six months preceding April 1, 1889, and no more, and the general term of the city court set aside & verdict for plaintiff upon the ground that the true construction of the writings between the parties required publication to the 1st of May.

There is ground for the conclusion of the city court that there was a contract for six months from Rovember 1, 1888, but we do not .agree with its disposition of the claim made by plaintiff that although he did not complete the contract, the defendant cannot prevent a recovery for the work actually performed, since defendant was first in default for non-payment of the stipulated price. It appears that one of the terms of the contract accepted by .defendant was that the whole price, $168, was to be paid on January 1, 1889. This is clear from the letters of October 2d, 3d and 4th, and the unqualified acceptance of October 5th. As defendant committed a breach of the contract in failing to make the stipulated payment, the plaintiff could stop the work and recover for what he had actually done. Flaherty v. Miner, 123 N. Y., 382; 33 St. Rep., 681; Canal Co. v. Gordon, 6 Wallace, 561; Phillips Co. v. Seymour, 91 U. S., 646; Moore v. Taylor, 42 Hun, 45; 5 St. Rep., 202.

Plaintiffs were not bound to discontinue the work immediately. They might give defendant time and continue with their performance of the contract. The defendant cannot complain of the indulgence thus extended to him. This disposes also of the question as to the non-delivery of the publication containing the advertisements.

The exceptions did not require reversal of the judgment. The motion ’for nonsuit was properly denied; it was not based upon variance between the pleading and the proof, but upon the nonperformance of the contract proved; and when plaintiff rested it appeared that defendant was in default in his payment.

The exceptions relating to the attempt to prove the defense of fraudulent representations as to the circulation of the periodicals in which plaintiff induced defendant to advertise were not well taken. The defendant failed to show that the circulation of the publications was below the total represented. The question put to the plaintiff as to what he remembered concerning the circulation did not prove the defense and called merely for hearsay. The question to defendant as to what induced him to reply to the letter of the plaintiff called for no testimony that was material or competent, as it had not been shown that there was any false representation ; but, in fact, the question was answered by his testimony as to the representations contained in the inclosure accompanying the letter.

The judgment of the general term should be reversed and the judgment of the trial term affirmed, with costs.

Bischoff and Pryor, JJ., concur.


text:
    Alexander Rich, App’lt, v. The Manhattan Railway Co. et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    Railroad—Elevated—Injunction.
    Where the complaint in an action against an elevated road by an owner of several lots alleges injury to the property as a whole and prays an injunction for its protection as an entire and indivisible unit, and it is found that the fee value of all the lots is greater with the railroad than without it, and that the enjoining of the railroad in front of any one of them and the removal thereof would cause its removal from the front of all, and be of no pecuniary benefit to plaintifE, Held, that an injunction should not be granted, although separate parcels were injuriously afEected by the presence and operation of the road.
    Appeal from interlocutory judgment, at equity term, denying injunctive relief. Action to restrain the maintenance and operation of defendants’ railroad in front of plaintiff’s seven pieces of property in Park Eow. As facts, the trial court found :

      “ Thirty-ninth.—The enjoining of the railroad in front of any one of plaintiff’s premises in Park Eow and the removal thereof would cause the total cessation of the operation of the road in front of, and the removal of the same from in front of all of the-plaintiff’s premises on Park Eow.
    “ Thirty-sixth.—The granting of an injunction restraining the Operation of the elevated railroad, as prayed for in the complaint, and ordering its removal from in front of all of the plaintiff’s premises abutting thereon, in accordance with the plaintiff’s prayer for relief, would be of no pecuniary benefit to the plaintiff.
    “ Thirty-third.—The gross fee value of all the plaintiff’s lots of' land,, as described in the complaint, is greater with the elevated railroad as it is to-day than the fee value would be if the elevated road were removed from in front of all of said buildings.”

      Leo C. Dessar, for app’lt; Brainerd Tolles, for resp’ts.
   Pryor, J.

The action is in equity for injunctive relief, Shepard v. Manhattan R. Co., 117 N. Y., 442; 27 St. Rep., 705; Lynch v. Metropolitan El. R. Co., 41 id., 541, and to its maintenance an insurmountable bar is opposed by the fact that front the wrong complained of no substantial injury results to the plaintiff. Brush v. Manhattan R. Co., 44 St. Rep., 111; Purdy v. Manhattan R. Co., 36 id., 43.

But appellant insists that though the collective value of his-several properties be not diminished by the presence and operation of defendants’ railway, yet since separate parcels are so injuriously affected, he is entitled, at all events, to relief as to them ; because benefit to one lot cannot offset damage to another.

To this contention the obvious answer is, that the complaint exhibits but a single cause of action, alleges injury to the property as a whole, and prays an injunction for its protection as an entire and indivisible unit. Herein the case differs from Sperb v. The Metropolitan El. R. Co., 41 St. Rep., 155, where several causes of action were presented, and damage claimed and relief sought in respect of each piece of property severally and distinctly.

Choosing to allege damage to his lots as one and an integral piece of property, and basing his title to relief upon an assumed aggregate injury, plaintiff must abide ,the consequences of his-election; and so fails in his action because the proof is of an aggregate benefit. Bohm v. Met. E. R. Co., 129 N. Y., 576; 42. St. Rep., 247.

From the findings of the learned trial judge it results, that the-restraining defendants’ railroad in front of any one of plaintiff’s-premises would operate an injury to all his property; and this fact, furnishes another and independent reason for refusing the injunction. We have not supposed that a benefit to the complainant gives him a title to equitable relief; nor that the injunctivepower of the court will be exerted to afflict him with a loss.

From the facts found the dismissal of the complaint was the-correct legal conclusion. Brush v. The Manhattan R. Co., 44 St. Rep., 111.

Judgment affirmed, with costs.

Daly, Ch. J., and Bischoff, J., concur,


text:
    Edward P. Yale et al., Resp’ts, v. Henry C. Dart et al., App’lts.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    Bills and notes—Evidence.
    Where the draft in suit was received by the plaintiff as collateral security for an antecedent indebtedness, it is held subject to all the equities between the maker and acceptor, and the conversations between them going to show on what understanding it was given are material and competent, whether plaintiff was present at such conversations or not.
    Appeal from judgment of the general term of the city court of New York, affirming a judgment of the special term in favor of plaintiffs, entered upon verdict.

      Howard Y. Stillman, for app’lts; T. Henry Dewey, for resp’ts.

       Reversing 48 St. Rep., 789.

   Daly, Ch. J.

The action was brought upon a draft drawn by one 0. A. Smith upon the defendants by their firm name of H. C. Dart & Co., to the order of the plaintiffs by their firm name of Yale, Bryan & Co., at thirty days for $230, and dated October 4, 1887. It was accepted by the drawees, who set up as one defense that their acceptance was without consideration and made solely for plaintiffs’ accommodation and upon the express agreement that it should be protected by plaintiffs.

It appeared upon the trial that the plaintiffs received the draft from the maker Smith, as collateral security for his antecedent indebtedness to them. This being so, they would not be entitled to recover upon it against the acceptors, if such acceptance were, ;as alleged in the answer, without consideration and made solely for the plaintiffs’ accommodation.

To sustain the defense the defendant Dart offered himself as a witness to prove the arrangement or agreement between himself and the maker Smith upon which the acceptance was given ; but he was not allowed to testify to his conversation with the latter on the ground that the plaintiffs were not present. This was error. The plaintiffs not having parted with value when they got the draft, and having received it merely as collateral to an antecedent debt, took it subject to all the equities between the maker and acceptor. Comstock v. Hier, 73 N. Y., 269, 273; Tinsdale v. Murray, 9 Daly, 446-449; Prince v. N. R. J. Co., 37 St. Rep., 677; Bradley & C. Co. v. Meyer, 40 id., 692.

What the equities between the maker and acceptor were was to be determined by the transactions between them in reference to this draft; and their conversations at and before the time of the acceptance, going to show upon what understanding or agreement it was given, were material and competent whether the plaintiffs were present at such conversations or not. ’

The plaintiffs took the draft subject to whatever agreement had been made by Smith and Dart, and subject to whatever conditions Dart had affixed to his acceptance, and defendants should have been permitted to show what occurred, as plaintiffs were bound by it whether they knew of it or not Tinsdale v. Murray, supra; Prentiss v. Graves, 33 Barb., 621-5; Benjamin v. Rogers, 126 N. Y., 60-5; 36 St. Rep., 393. After it- had been shown that the draft was accepted upon condition that it was to be used for the accommodation of the plaintiffs and not of the maker, and was to be protected by. the plaintiffs at maturity, the latter, unless they could show that they parted with value when they received the draft from the maker, would not be entitled to recover. (Cases-cited above.)

If the plaintiffs should succeed in proving that they had given value for the draft (which does not seem to be the case), then they would be bound to go further and prove that they had no notice-of the conditions imposed by the acceptor; and if the jury found it. to be so they would be entitled to recover. Grocers' Bank v. Penfield, 69 N. Y., 502.

It is claimed by the respondents that the note took the precise-course which the acceptors designed for it; but this is not so. The acceptors designed it to be used by the plaintiffs, but only for the latter’s accommodation, not for enforcement against themselves and not for the accommodation of the maker to be used by him in securing his own debt

The answer does not state that the note was fraudulently diverted, but sets up facts which, if proved, would establish that defense; for, if Smith was entrusted with the draft to deliver to the plaintiffs for their accommodation, but instead of doing so-secured his own debt with it, it was a diversion of the draft, even though such debt were owing to the plaintiffs.

For the error in excluding the conversation and transaction between the defendants Dart and Smith, the judgment should be reversed and a new trial ordered, with costs to abide the event.

Bischoff, J., concurs.