text:
    Thomas R. Browne v. George P. West.
    (Supreme Court, Apellate Division, Second Departmeut.
    October 6, 1896.)
    1. Contracts—Interpketion.
    An agreement between attorney and client that the attorney would conduct certain litigation in consideration of a share of the recovery, and that he would “pay all court costs, including attorney and counsel fee,” binds tiie attorney to indemnify the client against any costs that he might become liable for.
    2. Maintenance—Agreement to Pat Costs.
    A contract by which an attorney agreed to conduct litigation for a share of the recovery and to pay all costs is valid.
    Appeal from city court of Brooklyn, trial term.
    Action by Thomas R. Browne against George P. West. There was a judgment in favor of plaintiff, and defendant appeals.
    Theodore B. Gates, for appellant.
    B. F. Chadsey, for respondent.
   CULLEN, J.

The plaintiff, a tenant of premises fronting on a street in the city of Brooklyn upon which an elevated railroad had been constructed, entered into the following agreement with the defendant:

“This indenture, made this 6th day of October, 1892, between T. R, Browne and George P. West. Whereas, the first named party is the owner of certain real estate situated on the west side of Fulton street, in the city of Brooklyn, and known as ‘Numbers 304 and 306,’ which said property has been damaged by construction and operation of the Kings county Elevated Railway, for which damage the first named party purposes bringing suit against said railway company: Now, therefore, it is hereby mutually agreed the the said West shall bring or cause to be brought in the name of the party of the first part a suit against said elevated railway company to recover the damages, and for such other and further relief as thesaid party of the first party may be entitled to; that West shall have and receive as and for his compensation fifty per cent, of all money recovered or damages, either on settlement or otherwise; and he shall pay all court costs, including attorney and counsel fees, on the part of the first named party; and the party of the first part shall not be liable to said West for any further sum than the fifty per cent., as aforesaid, to be obtained on settlement of such claim or out of such suit; and the said West agrees to bring such action and to prosecute the same with all proper diligénce for the compensation aforesaid, and to account to the party of the first part for fifty per cent, all damages received by him in such action."

In pursuance of this agreement an action was brought in the name of the plaintiff against the Kings county Elevated Railroad Company by Theodore B. Gates, as attorney, to recover damages. In that action the plaintiff was unsuccessful, and the defendant therein recovered judgment for some $30 costs, which the plaintiff was compelled to pay. Thereupon he brought this action against the defendant to recover that sum.

The first question to be determined is whether, by the terms of the agreement between the parties, the defendant was bound to in- ’ demnify the plaintiff from any costs which might be recovered' against him in a suit against the railroad company. On the trial of the action the court permitted evidence of a conversation between the parties and the oral statements of the defendant to show that by the contract the defendant was to indemnify the plaintiff against such liability. This evidence was improperly received. The written contract expressed the agreement between the parties, and could not be varied or extended by oral evidence. This error, however, was harmless, as, in our opinion, under the proper construction of the written contract itself, the defendant was bound to indemnify the plaintiff against any costs that might be recovered against him.

The question then arises whether this contract thus construed is illegal. At common law it was unquestionably bad, and could not be enforced, and the making of such an agreement was criminal. But it has been settled by authority that the common law relating to champerty and maintenance no longer obtains in this stata This was so held in Sedgwick v. Stanton, 14 N. Y. 289, and reiterated in Fowler v. Callan, 102 N. Y. 895,1 St. Rep. 1. In the earlier case it was said that the reasons upon which the ancient doctrine was based—the danger of the support of unfounded claims by great lords and powerful nobles—had ceased. In the latter case Judge Finch said:

“ It does not affect the validity of the contract between the attorney and his client that, measured by the old rules relating to champerty and maintenance, it would have fallen under their condemnation ; for neither doctrine now prevails, except so far as preserved by our statutes.”

In the case before us the defendant is not an attorney of this state. As to the contract here in suit, he stands as a layman.

The only statutory provisions relating to champerty or maintenance now in force are sections 73 and 74 of the Code, and relates solely to attorneys. The case of the defendant therefore does not fall within the terms of the statute. The cases cited are authority not only for the doctrine that agreements for maintenance, except as condemned by our statute, are not criminal, but that they are valid and enforceable. The defendant relies largely on the authority of Lyon v. Hussey, 31 N. Y. Supp. 281, decided by Mr. Justice O’Brien at special term, which decision was affirmed at the general term. In that case the plaintiff, a layman, agreed not only to pay the necessary expenses for the prosecution of the suit, but to procure evidence to enable the defendant to recover in the action the subject of the agreement. It was held that the agreement was void. While some of the expressions in the opinion of the learned judge were sufficiently broad to condemn the agreement now before us, the substantial ground on which the decision, proceeded was that the plaintiff had agreed to furnish evidence. Such an agreement was held void as against public policy. In the brief memorandum written by the court on appeal its affirmance is placed upon this ground. It was held that such agreements would lead to the introduction of fraud and deception in proceedings before courts of justice, and hold out premium for subornation of perjury. In the present case that element is wholly wanting. So far as the opinion of Mr. Justice O’Brien seems to-indicate that, while agreements for maintenance are no longer criminal, still they are to be regarded as against public policy as-leading to or promoting strife and litigation, we think it is in conflict with the decisions of the court of appeals already cited by us.

The judgment and order appealed from should be affirmed,, with costs.

All concur.


source: Caselaw Access Project

author: CULLEN, J.

license: Public Domain

text:
    John L. Bickford v. John E. Searles et al.

    (Supreme Court, Appellate Division, Second Department,
    October 6, 1896.)
    Contracts—Interpretation.
    An agreement between the owner of land and real estate agents that the-agents should sell the property, and should receive half the profits after tlie owner had been reimbursed for the original price and expenses, gives ' the agent an interest in the profits of the land sold, hut not in the lands unsold.
    Appeal from special term, Kings county.
    Action by John L. Bickford against John E. Searles and others-for an accounting. The was a judgment in favor of plaintiff for part of the relief asked for, and plaintiff and defendant Searles. appeal.
    Josiah T. Marean, for plaintiff.
    Edward M. Shepard, for defendant Searles.
   CULLEN, J.

The plaintiff and the defendant Whiting were real estate operators. They called the attention of the defendant Searles to an opportunity to purchase two plots of land in Flatbush, and to the profit to be made by cutting the plots into lots and selling them. Searles made the purchase, advancing all the money, and talcing the title in his own name. After the purchase was effected the parties entered into the following written agreement :

“ This agreement, made this 15th day of May, 1893, between Jno. E. Searles, of the first part, and Charles S. Whiting, John L. Bickford, and Winthtop M. Tuttle, parties of the second part, wit* nesseth, that inasmuch as the party of the first part is the owner of two certain plots of real estate on Newkirk avenue, in Flatbush, lying between Flatbush avenue and Ocean avenue, and is desirous of disposing of the same at the best advantage, it is therefore agreed between the party of the first part and the parties of the second part that, in consideration of said parties of the second part devoting to said business their best efforts to dispose of the said propeity, the party of the first ‘part hereby agrees that after he shall be reimbursed for the cost of said property and improvements, with interest at six per cent, per annum, the profits on said property shall be divided as follows: Fifty (50) per cent, to Jno. E. Searles, party of the first part; twenty per cent to Charles S. Whiting; twenty per cent, to John L. Bickford ; ten per cent, to Winthrop M. Tuttle. It being understood and agreed, that the prices at which the above property shall be sold shall be mutually agreed Upon between the parties of the first and second parts. This agre&nent to terminate on the 15th day of May, 1895, unless terminated or extended meanwhile by mutual consent.
“Jno. E. Searles,
“C. S. Whiting.
81 John L. Bickford.
“Winthrop M. Tuttle.”"

The lands were divided into lots, and sales made from time to time till the commencement of this action, in June, 1895, at which time a part of the lands remained unsold. The complaint alleged that the plaintiff and the defendants Whiting and Searles agreed that Searles should purchase the property, and advance the money requisite for the purchase and for preparing the property for sale; that plaintiff and Whiting should handle the property, and take charge of putting it on the market; and that the parties should share the profits in some reasonable proportion. The complaint further alleged the subsequent written agreement between the parties, and that sufficient land had been sold to reimburse the outlay of the defendant Searles. The plaintiff prayed judgment for an accounting between the parties, that he recover one-fifth of the excess of the proceeds of the sales over the expenditures made by the defendant Searles, and that the lands undisposed of be sold by a receiver, and he be paid one-fifth of the proceeds thereof. The dofendan! Searles answered, admitting the written agreement, denying that he had received enough from the sales to reimburse him for his expenditures, but offering to pay the plaintiff his percentage or share of the profit on the land sold, estimating the cost of such lands at their proper proportion of the whole purchase money. The trial court found that Searles had been reimbursed his outlay from the proceeds of the sales. This finding of the court was excepted to by the defendant, and is criticised on this appeal. But, as the defendant has only appealed from so much of the judgment as awards costs against him, we think the correctness of the finding is not before us for review. Thereupon the court awarded judgment in favor of plaintiff for his one-fifth of the profits in the lands sold, and held that as to the lands unsold he had no interest therein, nor any right to share in them, and refused any relief as to such lands. The plaintiff has appealed from the judgment, in that it fails to award him any interest in the unsold land. The defendant Searles appeals from so much of the judgment as imposes upon him the costs of the action.

We think it plain that neither the plaintiff nor the defendant Whiting acquired any interest in the property itself. Whiting testified that his original proposition to Searies was that he (Whiting) was to have an interest in the property. The learned counsel for the plaintiff in his brief calls attention to this evidence, but does not appear to base upon it any claim that the parties were partners. The complaint proceeded on no such theory. It did not charge that the parties were partners, nor did it allege facts from which such relation would arise. The parol agreement first set forth in the complaint was that the defendant Searles would permit plaintiff and Whiting to handle the property, ^and take charge of putting it on the market. The fact that Searles was to permit them to handle the property is inconsistent with the claim that they had any interest therein, or right to control the same, except by permission of Searles. The agreement as alleged is strictly one of compensation for services,— that plaintiff and Whiting should have part of the profits in payment for tliei work. Even if they were to share specifically in the profits as such, this would not render the parties partners, as between themselves, or give the plaintiff and Whiting any interest in the land. Smith v. Bodine, 74 N. Y. 30. This being the case, the right of the plaintiff must be determined solely by the contract between himself and Searles, and the written agreement superseded any prior oral agreements, for it covered the whole subject-matter. The learned trial judge has said in his opinion that the plaintiff and Whiting were employed as brokers. This characterization of the plaintiff’s employment is vigorously assailed by counsel. We think this is a mere dispute about names. The plaintiff and Whiting were doubtless to perform more extensive services than those of a mere broker. They were to handle the property, and probably, to the extent of giving them a large compensation in case of sales, their services in calling Searles’ attention to the purchase of the property were recognized. Still, as already said, the contract was merely one of employment. We are therefore to determine when, under the contract, the plaintiff’s right to compensation accrued, and what was to be the measure of the compensation. The substantial ■dispute between the parties is this: The plaintiff contends that, when enough lots had been sold to repay the cost of the property, all the land remaining unsold then constituted profit in which he was entitled to share, as well as in the surplus of money received on sales over and above the cost of the property. The defendant contends that profit only accrued upon sales and was to exist only in moneys realized therefrom. The question is not free from difficulty, and we may doubtless look at the position of the parties, to aid us in reachinga solution. The plaintiff insists that the profit arose from the fortunate purchase, and actually accrued at that time; that, as the plaintiff and his associate acted in the purchase, they should share in the profit that then accrued. There is no evidence to establish the fact upon which this claim is made, and we cannot assent to this reasoning. It-is difficult to see why profit might not as naturally occur from advantageous sales as from fortunate purchases. It might proceed from other causes still Property might appreciate in value intermediate the time of purchase and that of .sale, or by judicious subdivision, and, being properly marketed, realize an enhanced price. In fact, this last cause of profit would ■seem the one contemplated by the parties. The agreement recites that Searles is desirous of disposing of the property, and specifies as the consideration for giving plaintiff atid his associate a share of the profits their agreemenv.to devote their best efforts to dispose of the property. It was for their efforts in sales, not in the purchase, that they were to be compensated. The property was bought, not to hold as an investment, .but as a speculation, for quick sale, and the only profit contemplated by the agreement was that which should arise on a sale. The agreement necessarily implied a covenant on the part of Searles to sell at reasonable prices during the specified period, and for a refusal to sell he would be liable to the plaintiff. Jones v. Kent, 80 N. Y. 585. Mo breach of such covenant is alleged. But, as long as Searles was ready to carry out his agreement and sell, the right of the plaintiff and Whiting to compensation was wholly contingent upon success in selling. To award them a share of the land unsold would be to give them compensation which, under the terms of their contract, they had not earned, and to which they were not entitled. We think that the trial court properly construed the agreement, and that the plaintiff’s appeal should not succeed.

This action was brought in equity. Whether it should have been so brought is now immaterial. But, being in equity, the costs were in the direction of the court. The defendant Searles, in his answer, offered the plaintiff the same relief as was ultimately awarded to him. The defendant should therefore not have been mulcted in costs.

The judgment appealed from should be modified by sinking therefrom the recovery of costs by the plaintiff, and as modified affirmed, without costs to either party.

‘ All concur.


author: HATCH, J.

text:
    August Cook v. Standard Oil Company of New York.
    (Supreme Court, Appellate Division, Second Department,
    October 6, 1896.)
    Negligence—Question bob juby.
    Variation in the testimony, in an action for negligence, as to distances, circumstances, and detail are not sufficient to withhold the case from the-jury.
    Appeal from trial term, Kings county.
    Action by August Cook, an infant, by Annie Cook, his guardian ad litem, against the Standard Oil Company of New York, for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial on. the minutes, defendant appeals.
    John Brooks Leavitt, for appellant.
    Luke D. Stapleton, for respondent.
   HATCH, J.

It is conceded that the boy was struck by the pole-of the wagon as it was being driven along the street, and that quite serious injury was the result. Three witnesses for plaintiff testified that the horses attached to the wagon were driven around the corner into the street where the boy, then upon the cross walk, was passing over the street. The boy states that he looked to see-if anything was coming before he started to walk across the street, and that he saw and heard no team or wagon until it came suddenly upon him. The other witnesses state that the team came suddenly around the corner, on a trot, when the pole came in contact with the boy. If this testimony was entitled to credence and was believed, —which was for the jury to determine,—it warranted a finding of freedom -from contributory negligence upon the part of the boy and of negligence on the part of the defendant. The boy was rightfully upon the street, and the defendant was bound to observe reasonable care as it turned the corner, to avoid coming in contact with persons lawfully thereon. If the team came around the corner on a trot, as they were immediately to pass over a spot where pedestrians might reasonably be expected and were likely to be-encountered, the jury might well say that the degree of care which the law exacts under such circumstances were not observed. But it is urged that the witnesses for plaintiff testify that the wheels of the wagon passed over the boy, an event which his subsequent condition showed to be impossible; that the spot where he was struck was four feet from the curb, and that it was a physical impossibility for the wagon to turn the corner, and come within that space. It is therefore contended that the story of these witnesses ought to have been disregarded; that it was manifestly improbable—in fact, impossible—of occurrence. We see no glaring inconsistency in the statement that the wheels ran over the boy, although in fact, it did not happen. It might well be, from the point of observation of the witnesses, that the wheels of the wagon appeared to pass over the boy. The essential fact of the matter is that the boy was-knocked down by the pole of the wagon, upon which point all agree-Because the witnesses say the wheels also ran over him'does not alter this fact, nor does it necessarily discredit the witnesses, for what they say may have appeared so to them, and a variance from what the fact is, is far from saying that the witness testifies falsely or improbably. The variation from the fact may be the very thing which evidences the entire truthfulness of the witness, and which establishes the probability of his story upon the essential fact. As applied here, we do not think the court would have b«en warranted in directing the jury to disregard the testimony for this variation from the conceded facts. So far as the physical impossibility of the pole coming in contact with the boy in the position in which he was placed by the witnesses is concerned, we may observe that the case is destitute of proof to show that the wagon was not of such a character as that its forward part could have been turned into this place. We may take notice that wagons are so constructed that the pole and forward wheels may be turned to a right angle of the hind wheels and body of the wagon, and we are not informed but that this may have been of that character. How far the corner of the curb was set back from the roadway at this point is not showd, and we may not say that it was impossible for this wagon to turn, and come within four feet of the side of the street, without coming in contact with the curb at the corner, in view of the fact that the pole struck the boy. Mor is there any evidence that the hind wheel of the wagon did not come in contact with the curb. Whatever observation may demonstrate respecting many wagons turning many street corners, such general observation does not render the fact so certain as that the court can say as matter of law that what the witnesses say was an impossible occurrence with this wagon at this street corner, or that this wagon in fact cleared the curb as it turned the corner. It could' have run over it. But, aside from this, while the distance is given as four feet from the curb where the pole struck the boy, which is adhered to with some pertinacity by the, witnesses, yet no measurements were made, and the witnesses expressed their opinion respecting the distance. Variations of distance, circumstances attending the transaction and details as to how the particular accident happened, have never been held sufficient to withhold a case from the jury, even though the witnesses were at a distinct variation with other witnesses, or with certain conceded facts, where the essential fact of an injury had transpired. Stackus v. Railroad Co., 79 N. Y. 464; Massoth v. Canal Co., 64 N. Y. 524; Greany v. Railroad Co., 101 N. Y. 419. There is nothing before us that requires the application of any different rule in this-case. There is not entire consistency in the testimony of defendant’s driver, and we think the case presented a question of fact to the jury, and that nothing which appears either upon the evidence, the submission, or the amount of the verdict calls for our interference.

The judgment should therefore be affirmed, with costs.

All concur.


text:
    People ex rel. Ward v. Up-Town Ass’n.
    (Supreme Court, Appellate Division, Second Department.
    October 6, 1896.)
    Clubs—Expulsion of mbmbebs.
    Relator, a member of a club, proposed a person for membership, and wrote to the directors urging his election. The candidate was rejected, whereupon relator addressed a circular to the members stating that his rejection was unwise, and asking that a call for a special meeting, as provided by the by-laws, be issued. Held, that relator’s conduct was not such, in the absence of any false statements in his circular, as to justify expulsion.
    Appeal from special term, Kings county.
    Application by J. Carlton Ward for mandamus to compel his reinstatement as a member of the Up-Town Association, The writ was denied, and relator appeals.
    Elihu Root, for appellant.
    William H. Sage, for respondent.
   CULLEN, J.

The respondent undoubtedly possessed the power of a motion, and the relator, by becoming a member, assented to the authority vested in the directors of the corporation, by its bylaws, to annual his membership for conduct which might, in the judgment of the directors, endanger the welfare or character of the club. “But it by no means follows that a member may be arbitrarily suspended or expelled on insufficient grounds. ” Haebler v. Produce Exchange, 149 N. Y. 415. The relator proposed one Siegel for membership in the association. Favorable action on this nomination being delayed, the relator obtained from the business associates of Siegel certificates or statements as to his character and qualifications. He then sent a letter to the board of directors givthe statements, and expressing the hope that he would be immediately advised of Siegel’s election as a member of the club. The candidate was rejected. Thereupon the relator addressed a circular to the members stating the fact of snch rejection and the relators’s letter to the board of directors. He urged that the candidate would be a desirable member, and that bis rejection was unwise, and asked that a call for a special meeting of the members, under the provisions of the by-laws, be issued. In this circular the relator stated that two black balls had rejected the candi dated. Subsequently, the relator was notified'that the board of directors had under consideration this circular, and that he would be heard before the board, to give such explanation as he might, make in justification of his action. The relator was heard, and the board of directors annulled his membership. By the statute, the board of directors are elected by the members of the association. By the by-laws of the corporation, two black balls exclude a candidate. Also bv the by-laws, 25 members may call a special meeting, and a special meeting may amend the by-laws. We think that the relator had the clearest and most undeniable right to appeal to his fellow members, either to alter the by-laws or to change the personnel of the board of directors ; that for this purpose he had the right to state any material fact, and to fairly criticise any action of the governing authorities of the club. ít may be unfortunate that there should be difference of opinion or disputes in the club management, but dissension is a hazard to which all associate action is liable, and clubs no more than other organizations can expect to be exempt from this hazard. Of course, the relator had no right to make any misstatment of fact, or cast unfounded aspersions on the directors or his fellow members. ” The concluding sentence of his letter to the board of directors would indicate that modesty or diffidence is not his dominant characteristic. Whether his violation of good taste in this respect was serious enough to justify action by the directors, it is not material to inquire, as he has not been disciplined for this letter, but for the circular to the members. The opposing affidavit states that, in fact, nine ballots were cast against the candidate, instead of two. If the relator knowingly, published a false statement on this subject, or even recklessly made one, without seeking to ascertain whether it was true or false, such conduct would be a sufficient ground for action by the board of directors. But the notification to appear before the directors seems to indicate, as the relator’s offense, his appeal to his fellow members, and not any false statement or unfair criticism made in that appeal. This, as we have said, could not of itself be an offense. Hence, if we construe this notice with the strictness applicable to a pleading, we would say the ground for proceeding against the relator was insufficient. But such was not the rule applicable to the case. “To request technical precision in complaints of this character * * "::" would greatly embarrass and many times defeat the disciplinary regulations of such associations. ” People v. Produce Exchange, 149, 1N. Y. 401. However, in the case before us the lack of decision has embarrassed us, for we are not clear for what offense the relator was disciplined. The relator appeared before the board, and seems to have made no complaint that the charge vías not definite. Therefore he cannot now raise that objection. In this case we think the proper course is to direct the issue of an alternative writ, on the return to which can be determined what the proceedings against the relator were, what was the charge against him, what was he tried for.

The order appealed from should be reversed, and an alternative writ directed to issue, without costs to either party.

All concur.


text:
    Rollin W. White v. Thomas Mallet
    (Supreme Court, Appellate Division, Second Department.
    October 6, 1796.)
    Brokers—Right to Commissions.
    Where an order for goods given by a broker was accepted by the s-ller on the belief that the broker was purchasing for himself, the seller mav, on learning the facts, imposeas a condition of filling the order, that tlx- sale shall be approved by a third person, and the broker cannot recover commissions on such sale unless such condition is performed.
    Appeal from trial term, Kings county.

      An action by Rollin W. White against Thomas Malloy, as treasurer of the Onondaga Coarse Salt Association, for broker’s commissions. The complaint was dismissed, and plaintiff appeals.
    E. H. Harrison, for appellant.
    Andrew H. Green, for respondent.
   HATCH, J.

The case does not disclose that prior to the present transaction the parties hereto had dealt upon the basis of broker and principal. Although there had been some dealings, their nature does not appear. The parties are, therefore, to be treated, at the opening of the present negotation, as buyer and seller. Upon this basis the telegram of plaintiff which opened the negotiation constituted an order for two boat loads of salt, as a purchaser. The answer was an acceptance of the offer to the extent of an agreement to furnith and ship the salt as soon as boats could be procured. As no terms were mentioned in the telegram or in the acceptance, a cash transaction would be implied. There was no employment in this transaction of plaintiff as a broker to effect a sale of the salt for the defendant, and thus far they stood in no such relation. Plaintiff followed his telegram with a letter, which showed that he was not intending to make the purchase for himself, but had received the orders from other parties, and was desirous of acting as agent for defendant in effecting the sale, and stated therein upon what terms the sale could be made, and how he would be paid. This apprised the defendant of the nature of the transaction and the attitude of the plaintiff. So understanding, the defendant had a clear legal right to accept or reject the proposition offered, or to impose any conditions upon his acceptance of the order which he chose, and was under nolegal or moral obligation to comply with Church, who had given plaintiff the order; for he was not bound to avail himself of plaintiff’s voluntary action. He had not employed him, and was under no legal obligation to accept his services. There must be an employment either express of implied, before a broker acquires rights, or liability can attach to the principal. At this time no such relation existed, and consequently no ■liability. Defendant resided at Syracuse, and was evidently desirous of being assured that the proposition was a safe one for him to accept, and would be carried out with fidelity. He therefore wrote a letter to plaintiff, accepting the offer, conditioned upon a confirmation by one McGrath that the order was satisfactory, and, upon advice by wire from him to that effect, he would ship the salt. Defendant had the right to impose this condition, and refuse ship.ment until it was obtained, and the plaintiff could earn no commissions until he procured such confirmation, so long as defendant was guilty of no act which would operate as a fraud upon plaintiff. There is no proof warranting this inference in the case. The confirmation that the order was satisfactory, by McGrath, was never obtained by plaintiff, and was never given; on the contrary, advice avainst it was made to defendant by McGrath. It is true that plaintiff testifies that McGrath declined to make any investigation of t.he matter, and arbitrarily refused to confirm the order; but for this defendant was in no wise responsible. It is not shown that he did anything to influence McGraw’s action, or but that he acted ■in perfect good faith, as be clearly did within his legal right. Plaintiff, upon this evidence, failed in procuring a purchaser satisfactory to defendant, and in consequence no legal liability was imposed mpon him. The fact that a sale was afterwards effected of this salt to Church did not change the condition. There is nothing to show that he did not act in perfect good faith, so far as plaintiff was concerned. The case comes within the principle of Sibbald 17. Iron Works, 83 N. Y. 378.

Judgment should be affirmed, with costs.

All concur.


text:
    Matthew W. Breen el al v. Union Ry. Co.
    (Supreme Court, Appellate Division, Second Department.
    October 6, 1896.)
    1. Attorney and client—Legal services—Compensation.
    Services rendered by an attorney in pror.uring for a railroad company the right to lay its tracks along a highway, though not involving any legal question, is nevertheless, within the line of professional employment, which must be compensated accordingly.

      2. Services—Value—Admission by rendering bill. |
    An attorney who renders a bill for services at a certain rate per year is not thereby precluded from afterwards claiming a greater amount, where he was negotiating for a yearly retainer at the time the bill was rendered,' but afterwards withdrew bis proposal, stating that he would render services on basis of a quantum meruit.
    Appeal from judgment on report of referee.
    Action by Matthew P. Breen and Daniel F. Cohalan against the Union Bail way Company of New York City, to recover the sum of $132,500, with interest from June 24, 1893, for services alleged to have been rendered by plaintiffs to defendant between January, 1891, and June 1893. There was a judgment in favor of plaintiffs in the sum of $27,416,66, and defendant appeals.
    George Hoadly and Nathan Ottinger, for appelant,
    Matthew P. Breen, for respondent.
   HATCH, J.

The defendant asks that the judgment obtained in this action be reversed, as excessive in amount, andas being without any legal basis for its support when tested by the rule which controls in measuring the compensation which may be awarded for the services for which a recovery has been had. The plaintiffs are lawyers, and the recovery has been had for services rendered by theinui a professional capacity. It appears that plaintiffs appeared in five actions or proceedings which were in their nature strictly legal proceedings. The other services consisted wholly in procuring grants' or franchises over certain highways in several towns in Westchester county, and in the city of Mt. Vernon, from the public authorities having control of the same. There was other services performed in ¿the city of New York in procuring the commissioner of street in the Twenty-Third and Twenty-Fourth wards of that part of the city, known as the “ Annexed District, ” to consent to and recommend a change in motive power of defendants’s cars, and also services performedat Albany and elsewhere in and about the passage of an act relating to defendant’s charter'. The referee has refused to allow compensation for these services, and, as no appeal was taken from his determination in this respect, his decision thereon is final. The great bulk of the service for which a recovery was had related to that which was rendered in obtaining the franchise for defendant in-the towns of Westchester, Williamsbridge, South Mt. Vernon, and the city of Mt. Vernon. The record of this services is set out in the testimony of Breen ata great length and in infinite detail, and' is in the main not substantially disputed. Counsel for defendant, has, by an analysis of the record kept by the plaintiff Cohalan, reduced the time devoted to the service of the defendant to what he-terms “two months ’ solid work.11 We are not disposed to accept this view of the service rendered. The services began in January, 1891, and ended in February, 1893. The active services for which a recovery has been allowed began in the early part of May, 1892, and was concluded in Februrary, 1893. We think it apparent from the testimony that during this period Breen was occupied substantially the entire time, and his partner and clerk a portion. The entries which founded their way onto the book are quite meagre in character, and, when measured by practically uncontradicted testimony, they show that a portion only of the actual time devoted was accounted for therein. The character of the service was not such as could be readily itemized, and the testimony as a whole-shows that for much of it no entry was made. It is asserted that the service rendered by Breen in connection with the granting of the franchise in the town of Westchester was not only valueless, but, in its effect, dangerous and disastrous to the interests of defendant, as it imperiled its corporate existence. The basis of this claim is that the statute which authorized the extension of the road was in conflict with section 16 of article 3 of the constitution,, and that the action instituted by Breen necessarily brought the-court to an adjudication of that question. It may be here observed that no act of plaintiffs could cure the defect in defendant’s chartered rights, if any existed; and, if such rights were so precarious that they were liable to collapse if attention were called to it, there was no-very substantial basis upon which it stood, and any act which Breen did or omitted to do could not very seriously damage defendant, as the infirmity, assuming it to exist, was quite open and patent. To the extent that the road has been constructed and was then being operated, whether in Hew York City or elswhere, it is quite possible that defendant had acquired rights which would resist a successful attack upon the act in question. It is also true that, if it was defeated in its application for a grant in Westchester and other towns, it would be of little consequence whether its chartered rights for that localty were invalid or not. It is not easy to see that it risked much by attempting to assert rights which, unless asserted, left it dead as to the particular grant and those which followed. When Breen made the application for a grant to lay tracks im Westchester, he was confronted by some applications from other companies for the same territory, and the grant was in fact made to-another company. If the matter has stopped here, defendant would have had no opportunity to exercise its corporate functions in the territory, whether its act was constitutional or otherwise. To meet this condition, Breen advised that the defendant possessed the right to lay its tracks, under its charter, without the consent of the public authorities, and the company acted upon this advice, and laid its track.

We do not find ourselves in harmony with the learned referee-in the view which he has taken of plaintiffs’ action respecting the method by which the grant in Westchester was obtained and secured to defendant. It was certainly audacious enough, but such audacity does not commend itself to us as a basis upon which to award compensation for legal service. Its tendency would be to put a premium upon lawlessness. It does not follow because we do not sanction this act that defendant’s action in this regard receives our commendation. The moral phase of this question, was as open then as now. The promptness, with which it availed itself of the advantage secured by Breen’a advice shows that it was little troubled with the abstract question of right and wrong involved in the transaction. We have, however, little difficulty in seeing that the advice and action thereunder was valuable and effective service to defendant, as its effect was to place the latter in a position to make application for other grants which it obtained, and to carry on a successful negotation for the acquirement of other territory where it now operates its cars. The assertion of the right to lay its tracks in Westchester, followed by its actual exercise, and the procuring and sustaining of an injunction when its acts were interfered with, had a marked effect upon subsequent, negotiations with the other companies. Before this, they demanded $300,000 in stock and $3,500 cash for such rights as they possessed. After, they sold all they sold all their interests for $25, 000. The service in the other towns was, in the face of a determined opposition, ably represented, and seems to have been conducted with ability and skill, and was certainly successful. It is. asserted that this service did not involve the slightest legal question. This may be true in a strict legal sense, and yet it was such service as lawyers frequently perform, and is generally regarded as in the line of professional employment. The record sustains this view, for it shows that the opposing roads engaged, to resist the efforts of Breen, Judge Mills and Judge Appel, who performed precisely the same service that Breen was then engaged in performing. It falls, therefore fairly within the lines of professional service, and is to be compensated as for such.

It is further claimed that Breen conclusively established the value of his service at the rate of $5,000 a year by rendering bills for that amount. The evidence tends to establish that he was anxious to be retained as permanent counsel of the i-oad, and made a proposition to accept his service at a compensation of $5,000 a. year for a term of vears, according to his testimony. Stadler sajs ■at $3,000 per year, and Brandy $5,000, and that no length of service was suggested. The proposition was made, but defendant ■never acted thereon, and subsequently Breen withdraw the proposal, by letter, stating that he would render the service on the basis of •a quantum meruit. The bill was rendered prior to the letter, and Breen states was in consequence of the conversation he had with Brady respecting a permanent engagement. The rendition of these bills was not conclusive upon plaintiffs, and while it is pertinent •evidence as bearing upon the value which Breen attached to his service, yet it is evident that, while he might be quite willing to engage himself for a term of years at that rate of compensation, it would scarcely furnish the rate of compensation for services to be performed in a short time, and then terminate. But it is important now in fixing the amount that should be awarded as compensation. The service, from the time it first began, down to its termination, covered a period of something over two years. The active service was something less than a year. If Breen should be allowed for service at the price fixed by him cn a basis of a permanent retainer, it could in no event exceed $12,000, and from this sum would be deducted to amount that has been paid, $2,650, leaving a balance due of $9,350. In whatever way we view the ■case, and however we construe the testimony bearing upon the value ■of the service, the result reached must, from the nature of the case, be more or less an arbitrary sum. We are not inclined to undervalue the services rendered by Breen for which a recovery can be had, for of those that we reject we can see that they were valuable to defendant, measured by practical results. But, upon the whole testimony, we think that the referee has awarded too large a sum. In fair estimate, is should not exceed $15,000. The recovery will therefore be reduced to $15,000, with a proportionate amount of the extra allowance; and the judgment will be that the judgment appealed from be reversed, unless plaintiff stipulates within 20 days to reduce the same to the sum of $15,000, in which event the judgment will be affirmed, without costs.

All concur.


author: PER CURIAM.

text:
    McCreery et al. v. William Ghormley et al.
    (Supreme Court, Appellate Division, Second Department.
    October 13, 1896.)
    Reargdment—Error not Affecting'Moving Party.
    A reargument will not be granted on motion of one of several defendants where it was made on the ground that defendants’books and papers, which they were ordered to produce, contained incriminatiug evidence, and that the court erroneously held that the alleged crime was in the case of all defendants barred by limitation, when in fact it was barred as to the moving party only, and the other defendants did not join in the motion, and it did not appear to have been made on their behalf.
    Motion for a reargument.
    John F. Coffin and William P. S. Melvin, for the motion.
    Eugene G. Kremer, opposed
   PER CURIAM.

The decision of the appeal in this case proceeded upon the ground that the statute of limitations had run, which barred any criminal prosecution, and therefore, the parties would not be excused from answering or producing documents tending to, prove them guilty of a criminal offense. It is now claimed that the assumption of fact by the court that the statute had run was a misapprehension; that in fact it has not yet run. The affidavit upon which the order to show cause is based is made by George ZRyall, who is the attorney for the defendant William Ghormley, and the application is made upon his behalf. Nothing appears in the papers to show that a reargument is sought for the benefit of any other person, or that it is made in behalf of any of the other appellants, or that they, or either of them, desire a reargument. So far as the party making the present motion is concerned, it affirmatively appears that he made all the transfers of which a discov-. •ery is sought as early as January 17, 1898; and reference to the testimony referred to in the affidavit which supports the motion •shows that it relates to transfers made by parties other than the •present applicant. It therefore appears that, so far as William Ghormley is concerned, the statute has run, and he is not entitled to consideration on account thereof. We may not treat this as an application on behalf of the other defendants, for they have not joined therein, nor does it affirmatively appear that it is made upon their behalf. The privilege upon which the exemption is based is a personal privilege, and must be urged by each party in his own behalf. Rap. Wit. § 265; Southard v. Rexford, 6 Cow. 259 ; Ward v. People, 6 Hill, 144. The court should not be astute to relieve parties unless they present themselves standing clearly within the rule which they seek to invoke. As the statute has run upon the present applicant, and none of the other defendants have asked to be relieved from the misapprehension, assuming it to exist, no cause is made for reargument.

The motion should be denied, with $10 costs.


text:
    People ex rel. George Comatus v. Theo. B. Willis et al.

    (Supreme Court, Appellate Division, Second Department.
    October 13, 1896.)
    Municipal corporations—Authorizino obstruction op sidewalk.
    The common council of the city of Brooklyn is not authorized to permit the use of a sidewalk for displaying goods by the provision of the charter ( Laws 1888, c. 583, tit. 2. § 12) that it may “regulate all matters connected with the public wharves and all business conducted thereon, and with all parks, places and streets of the city.”
    Appeal from special term, Kings county.
    Application by George Comatus for a write of mandamus to compel Theodore B. Willis, as commissioner of the city of Brooklyn, and N. I Flocken, as superintendent of streets, to remove certain obstructions from a sidewalk. A peremptory writ was granted, and defendants appeal.

      Frank Sperry, for appellants.
    Norman S. Dike, for respondent.
   PER CURIAM.

The booth or stand which the writ of mandamus commands the appellants to remove from the street is plainly an obstruction on the highway, and unlawful, unless statutory authority can be found for its maintenance. The existence of such authority is asserted under an ordinance of the' common council empowering the alderman of the ward to grant permits to use a portion of the sidewalk for the displaying goods and merchandise. The right of the common council to enact this ordinance is based on the following provision of the city charter:

“ The common council shall have power within said city to make, establish, publish and modify, amend or repeal ordinances, rules, regulations and by-laws not inconsistent with this act or with the constitution or laws of the United States or of this state, for the following purposes: * * * (3) To regulate all matters connected with public wharves and all business conducted thereon, and with all parks, places and streets of the city. ” Laws 1888, c. 583, tit. 2, § 12.

We are entirely clear that the power to regulate matters connected with and business conducted upon the streets is not a power to permit or authorize any unlawful use of the streets, but merely to regulate lawful uses thereof. There are many temporary uses of the street, which, for the time, obstruct public travel, yet are lawful; such as the right of an adjoining owner to use part of the highway for the deposit of materials to build or repair a structure on his lot, the right to unload a vehicle, and deposit its load on the street, for the purpose of removing it to the adjacent store. Callaman v. Gillman, 107 N. Y. 360; 12 St. Rep. 21. Ample effect and scope is given to this charter authority when it is held to apply to-the regulation of the lawful uses of the highway such as these, and the speed of vehicles. There is no reason for giving it any greater scope.. We are also clear that, even if there were any power in the common council to authorize any obstruction as here-proceeded against, such power cannot be delegated to the individual alderman, but must be exercised by the common council itself.

The order appealed from should be affirmed, with $10 cost and disbursements.


text:
    Nicklas v. Keller.
    (Supreme Court, Appellate Division, Second Deparment.
    October 13, 1896.)
    1. Easement—Bight oe Way—Creation by Deed.
    Where the owner of land plats it into streets and lots, and conveys lots-by reference to one of such streets, but the deeds do not include any part of the land lying in the street, the grantees have a right of way in such street which is not affected by the fact that its lines are changed, by commissioners after-wards appointed to lay out streets, so that a space is left between the lot lines and the line of the street established by the commissioners.

      2. Specific Performane—Defective Title.
    A defect in the title to a stripe one foot wide along the front of a city lot will bar specific performance of a contract of purchase.
    Appeal from, term, Westchester county.
    Action by William J. Nieklas against George Keller for specific performance. There was a judgment in favor of plaintiff, and defendant appeals. 1
    Milo J. White, for appellant.
    Austin E. Pressinger, for respondent.
   CULLEN, J.

This action is brought to compel the specific performance of a contract between the parties for an exchange of real properties. The plaintiff attended at the place prescribed by the contract for passing the title, and tendered a conveyance of his property, and of the money which by the contact he stipulated to pay. The defendant declined to carry out the contract, or deliver the plaintiff a deed of his (defendant’s) property. No reason was as signed by the defendant for the refusal. At the time at which title was to be taken, there were certain mortgages on the plaintiff’s property, in addition to the one subject to which, by the terms of the contract, the defendant was to take the property. These mortgages were presently payable, and the plaintiff, at the time prescribed for performance of the contract, tendered with his deed proper satisfaction pieces, and offered to pay for recording them. These ( mortgages have since been satisfied of record. After the refusal1 of the defendant, the plaintiff instituted this action, alleging his ability and desire to perform the contract, and the ability of the de- j fendant to compel with it, and prayed judgment for its specific per-! formance. The defendant answered, denying plaintiff’s ability to convey a good title, and especially set forth the incumbrance of the mortgages before mentioned. He also counterclaimed for his expenses for the examination of the title, and for the services of his broker in negotiating the exchange. The special term held plaintiff’s title good, and decreed that the defendant specifially perform the contract for exchange, or, in default of such performance, that the plaintiff be awarded damages.

We think that the existence of the mortgages on the plaintiff’s property, unsatisfied of record, did not place the plaintiff in any detault. Conceding that it was the duty of the plaintiff to see that he mortgages were properly discharged of record, and that he could not impose that burden on the defendant, still it was a duty which at the time the plaintiff was entirely able to perform. The refusal of the defendant to take title was arbitrary, and no reason was assigned therefor. Had the defendant given the existence of the mortgages as the reason for his refusal to take title, the plaintiff could at, once have proceeded to have the mortgages satisfied of record. As the defendant assigned no such ground for his conduct, but absolutely refused to carry out the contract, we think that it was not necessary for the plaintiff to satisfy the mortgages at the time. However this may be, and assuming that plaintiff was in default, the mortgages have been since satisfied of record, and it was entirely within the power of a court of equity to relieve hint from the default. Haffey v. Lynch, 143 N. Y. 241, 62 S. . 171; Day v. Hunt, 112 N. Y. 191, 20 S. R. 233.

But there was one objection to the plaintiff’s title, proved on the-trial, which though discovered after the defendant had refused to perform his contract, and now urged solely to relieve him of its-obligations, is, in our opinion, valid, and must prevent a recovery by the plaintiff. The premises contracted to be conveyed by the plaintiff were a plot at the southwesterly corner of Courtlandt avenue and 148th street, in the city of New York, 27 feet and 5 inches in fronton Courtlandt avenue by 94 feet in depth on the 148 th street. The plaintiff placed in evidence a deed to himself from Anna T. Dale and James S. Dale, dated April 16, 1894, conveying these premises by proper description. The defendant now objects that there was no sufficient evidence given to show that the plaintiff ever entered into possession of the premises under that deed. It may be that this contention is correct. If such be the case, the plaintiff would have failed to prove a prima facie title. But it appears from the whole case, which seems to have been rather loosely tried, that the possession of the plaintiff was assumed by both sides. On this assumption, and proof of the plaintiff’s deed, it was incumbent on the defendant to show that there was any defect in the title. Forbes v. Halsey, 26 N. Y. 53; Moser v. Cochrane, 107 N. Y. 35, 11 St. Rep. 200; Greenblatt v. Hermann, 144 N. Y. 13, 62 S. R. 859; -The evidence for the defendant showed that the property of the plaintiff was part of a large tract of land in the then town of Morrisania, owned by Gerard W. Morris, and laid out into lots, streets, and avenues by him, by a map made in 1853. The streets and avenues seem not to have been public highways, and came into being solely by the act of the owner in laying them out, and selling lots fronting upon them. The first deed in the chain of plaintiff’s title was from Morris to one Klingelhofer. This deed conveyed three lots fronting on Mott street, as laid down on the Morris map. The description ran along the southerly side of Mott street, and did not include any part of the land lying wifhin that street. By chapter 841 of the Laws of 1868, commissioners were appointed to lay out streets, roads, and avenues in the town of Morrisania, and, to that end, to adopt or reject such highwas or streets as might then be actually laid out and open or in use as public streets. Under this statute, in February, 1871, the commissioners filed a map by which it appears that Mott street was retained on the plan adopted by them, under the name of “ One-Hundred and Forty-eight Street. ” But while, so far as we can gather from the map filed, the lines of Old Mott street and the present 148th street are identical, it seems, by the evidence of the surveyors who located the street lines from monuments established by the commissioners, that the actual location of 148th street is one foot to the north of the lines of Mott street. It is not necessary for us to determine whether the map filed by the commissioners shouldin law, control the location of the monuments. The premises of the plaintiff, as occupied by the building thereon, concededly are but 26 feet 5 inches in front. If the location of Mott street controls, then the premises are a foot deficient in front, because the distance from the center of the party wall to the south line of Mott street is but 26 feet 5 inches,—the space occupied by tliehouse. If, however, the actual location of 148th street determined by the commissioners’ monuments is to control; then there is a distance of 27 feet 5 inches between the southerly line of plaintiff’s premises and the southerly line of 148th street. This is the full distance called for by the contract. The plaintiff sought to establish title to the additional one foot which formerly lay in Mott street by a conveyance from the heirs of Morris to his grantor, Anna T. Dale. This chain of title is criticised on the ground that who were the heirs of Morris was not sufficiently proven. W© think that, presumptively, the conveyance was sufficient; and, under the rule of law already cited, it was incumbent on the defendant to point out in any other parties. But, though the title to this strip a foot wide is thus shown in the plaintiff, it appears to be incumbered with an easement in favor of the owners of other lots fronting on the street. The plaintiff contends that, by the action of the commissioners in rejecting this strip of Mott street from the limits of 148th streett he title to the strip reverted, unincumbered, to the owners of the soil. We think this position cannot be sustained. In the case of a public highway, it is doubtless true that when the highway is closed by proper authority the abutting owners do not continue to possess a private easement over the highway as a right of way. It was so held in Wheeler v. Clark, 58 N. Y. 267, and in Kings County and Fire Insurance Co. v. Stevens, 101 N. Y. 411. But the present case differs from those cited. The-rights of the purchasers of lots fronting on Mott street were not the rights that abutters have in a public highway, but private easements, created by lying out the streets, and the sale of lots theron. In Hight v. Littlefield, 147 N. Y. 338, 69, S. R 674, the owner of a plot of land laid out thereon a street running from the public street or highway to a railroad. Lots were sold, bounded by the street. It was held that such conveyances, with the map, secured to the grantee an easement or right of way in the strip of land delineated as a street; that, whether it was a public street or not, the grantee-acquired the right to insist that at all times the way be kept open and unobstructed for the benefit of his premises; that irrespective of the rights of the public in a public street, the owners of lots bounded upon the street have, under such circumstances, a right of way, as between themselves and their grantor. This easement could only be extinguished by releases from the owners of adjacent property, or by proof that such owners had abandoned it by building out or inclosing their lots to a new line. Welsh v. Taylor, 134 N. Y. 450, 74 S. R. 653. The case is barren of any proof in this-respect It seems to us, therefore, that either the plaintiff has a lot only 26 feet 5 inches in front, or if his lot be 27 feet 5 inches, then that, as to one foot of that frontage, it is, on the proof in this case, subject to such an easement in favor of the adjacent abutters as would deprive a purchaser of any beneficial use. This deficiency of 1 foot we regard as too substantial to be overlooked. It may b© "that, on another-trial, plaintiff can show that the property owners on the street have gone out to the new line. In that case, in our judgment, his title is good. But, if the plaintiff should be unable to adduce such proof, it is still plain that the defendant originally repudiated his contract, not on the ground of this defect of title, but solely because he repented his bargain. He was neither ready nor willing to perform. He is therefore not entitled to damages, nor should the plaintiff be mulcted in costs-

The plaintiff, at his election, may either take a new trial, the ■costs to abide, event, or an order reversing the judgment and dismissing the complaint, without costs.

All conear.


author: WILLARD BARTLETT, J.

text:
    George M. Fiske et al. v. Frank H. Smith et al.

    (Supreme Court, Appellate Division, Second Department,
    October 13, 1896.
    1. Examination of party before trial—Prevention of perjury.
    An allegation by affiant that lie is convinced that perjury will he committed by defendants at the trial of the ease is not sufficient to sustained an order for examination of defendants before trial.
    3. Same—Review by appellate division.
    The appellate division of the supreme court succeeded to all the powers of the general term (Const. 1895, art. 6, § 2), and therefore has jurisdiction to review orders for the examination of parties before trial.
    Appeal from special term, Kings county.
    Action by George M. Fiske and William Homes against Frank E. Smith and Flora Sawyer. From an order denying a motion to vacate an order for the examination of the defendants before trial, defendants appeal.
    J. Baldwin Hands, for appellant Smith.
    Thomas O’Callaghan, Jr., for appellant Sawyer.
    Robert D. Benedict, for respondents.
   WILLARD BARTLETT, J.

The order for the examination of the defendants before trial cannot be sustained. The facts necessary to be shown upon such an application have been so frequently and so fully considered by the courts in the numerous reported cases upon the subject that they do not need to he restated here. In our opinion, it does not appear from the moving papers that the desired examination is either material or necessary. The affidavit upon which the order was granted is made by one William B. Gilmore, who describes himself as the agent for the plaintiffs for the purpose of making it, and who swears, among other things, that, from the nature of certain testimony given by the defendants in a chancery suit in New Jersey, “he is convinced that they would, if placed on stand at the trial of this cause, give false evidence, which deponent could not then rebut; but, if examined before trial, they will not dare to testify falsely to any facts of which the plaintiffs herein could prove the falsity, and on which examination the plaintiffs could procure the indictment of said Smith and Flora Sawyer. ” In other words, the plaintiffs want to examine the defendants before trial, in order to prevent them from committing perjury upon the trial. This reason is not recognized as sufficient «either by the Code or by the courts. It would be a reflection on the character of the parties to an action which the court has no right to make to force them to submit to an examination upon the •assumption or assertion that such a course is necessary in order to guard against subsequent false swearing on their part, especially when there is nothing to sustain the assumption or assertion except the bald statement of an agent of the adverse litigants that he is “convinced ” of the danger or perjury. Nowhere else in the affidavit do we find any special conditions set out which indicate that the examination of these defendants should take place before rather than upon the trial. See Abbott-Downing Co. v. Faber, 87 Hnn, 800, 685 E. 838. The proposition that the determination of the judge who grants the order will not be reviewed on appeal is not •correct so far as it relates to the appellate division. This court ¡possesses all the powers which belonged to the general term at the time the present constitution took effect. Const art. 6, § 2. The authority of the general term to review orders of this character was upheld in the case of Jenkins v. Putnam, 106 N. Y. 272, 6 S. R. 425.

The order appealed from must be reversed, and the motion to vacate the order of examination granted, with $10 costs and disbursements. All concur.


author: HATCH, J. OULLEN, J.

text:
    Matter of Greene.
    (Supreme Court, Appellate Division, Second Department,
    October 14, 1896.)
    Elections—Ballots—Infringing Party Name.
    The designation “National Democratic Party ” on the officials ballots is sufficiently distinctive to avoid confusion with the “ Democratic Party.” Cullen and Bartlett, J., dissenting.
    Appeal from special term, Kings county.
    Proceeding by Everett Greene to review the determination of the board of elections of the city of Brooklyn. From an order that the certificate of nomination of the complaint was in all respects a valid party certificate of nomination, and that the name “National Democratic Party ” infringes on the name “ Democratic Party,” both parties appeal.
    J. Herbert Watson, Edward M. Shepard, and Charles J. Patterson, for complainant.
    S. S. Whitehouse, Willard P. Reid, and Almet F. Jenks, for board of elections of Brooklyn.
    Asa Bird Gardiner, for Democratic state committee.
   HATCH, J.

We are agreed that that part of the order appealed from which determined that the certificate of nomination which was filed by the complaint is in all respects a valid certificates of nomination by an existing political party was correctly decided ~ that the same is in compliance with the election law of the state,, and, being such, the complainant is entitled to have his name-placed upon the official ballot to be voted at the ensuing election. In this respect we are in harmony with the views expressed by the-learned court below.

Upon the question as to whether the use of the words “ National Democratic Party ” is in substance the same as the regularly adopted name “ Democratic Party,” as a designation of an order political organization, we are not so agreed. In the election law of this-state the Democratic Party is recognized as one of the great political parties, and it has become securely entitled to that name as a party designation. Any use, therefore, of a name in the official ballot which infringes upon this right, is in violation of the statute which secures it. It is quite evident that the design of the-statute is to secure to the party a distinctive name, in order that the voters who are in harmony with the principles which the party represents many known certainly that they are voting its ticket, and that they may not be misled into voting a ticket which does not represent those principles, by the use of a name which so closely resembles it that the voter may not readily discern the difference. We are therefore to see if the proposed name, “National Democratic Party, ” may thus mislead, tested by this rule. In determining this question, we consider the names used by the representative parties in former years, and since this requirement became the policy of the election law of the state. In this view, the action of those parties who have clung to the distinctive name “Democratic,” and have writh qualifications made use of the same in party designation upon the official ballot, becomes significant and important. In 1894 an organization in Kings county called itself the “Democratic Party Reform Organization, ” and under this name it nominated candidates for state and county officers, and its candidates were placed upon the official ballot under this designation, and thousands of voters cast their ballots for the candidates thus presented. In the next year a state convention was held, which nominated candidates for state officers, who were voted for throughout the state, and local conventions under the same auspices were held in Kings county, and candidates named for the several offices. These tickets, state and local, found place upon the official ballot, under an adopted emblem of a full-rigged ship, and with the name as-above mentioned. This party thus acquired a right to use of this, name as secure as is the right of the Democratic Party to its name. It is of considerable importance to note that upon the official ballot this party and ticket appeared in the third column, designated in the first line as “ Democratic Party, ” followed in the second line by “Reform Organization. ” The first line is the precise designation of the Democratic Party in its column. It would seem that, as this designation in the first line was in the same language, its tendency might be to mislead; yet thousands of voters cast their ballots for both tickets. at a time when the law was new, not alone once, but twice, and yet no complaint was ever made that a single voter was misled, or that either party suffered loss of votes on account of the resemblance* This condition seems to establish that as to the words “ Democratic Party ” no right is acquired when such words are accompanied by other words which qualify their sense, or convey a meaning that a different party is intended, and that, in practical use, the voter is not misled, and the statute is not therefore violated. The object of the law istosecure to each voter the right to cast his ballot for the party of his choice. To this end, the emblem is required that the illiterate voter may be secure in his choice. The designation by name is made for the benefit and security of the- voter who can read. It is at once evident that the illiterate voter cannot be misled by any designation in words, for all are meaningless to him, and, besides, he may be entitled to assistance. Laws 1896, “Election Law,” § 104, subd. 2.

The voter who does not know for whom he wishes to vote or what ballot he intends to cast cannot be misled or confused by designation which may be made, and consequently remains unaffected by the use of any words of designation. It is undoubtedly true, in the sense that the Democratic Party is made up from citizens in every state and community in the Union, that is general convention is national, in that it embraces representatives from all parts of the country, and all of its members are affected by its action ; and it is in the sense of representation, and that alone, that the word “National” has any signification in connection with the party name. It has never, so far as the papers disclose, or so far as we are aware, made use of the word as a party designation in this state, and it is not claimed that it ever appeared as a party designation upon the official ballot. Its voters who have cast its ballot do not know it by that name, and have never been confronted with its ticket under that designation. To the voter, therefore, who can read,—and it is for him that the name is given,— when the words “Democratic Party” are preceded or followed: by a qualifying word or words, his attention is arrested, and we think it necessarily conveys to his mind that the two parties are not one and the same, but are different; and when this is followed by the name of the presidential candidates, whom we must assume, as he can read, he knows, it does not seem possible that he can be misled by what he can plainly see. We must bear in mind that during the last two years, as we have seen, the Democratic Party has been represented upon the official ballots by two tickets calling themselves “ Democratic.” The voters of the state have therefore become familiar with such fact. The respondent has always been designated “Democratic Party”; is still so designated. The other branch has been the “ Democratic Party ” qualified by other words. The word “ National ” keeps up the qualifying designation, and it seems to my mind that a voter with intelligence sufficient to read could not be misled by such terms into voting a ticket that he did not intend to vote, or fail to organize the distinction between the two parties. When we add to this consideration the fact that we are upon the eve of an election wherein the candidates and principles of the two dominant parties have been under consideration for months; that since the 3d day of Septemher, 1896, a party calling itself the “National Demoratic Party,” in contradistinction to the “ Democratic Party," with candidates for president and vice president, has been before the people, discussed in all newspaper, brought to the attention of the citizens and voters in every city and hamlet in this state by all the enginery of political machinery, we must conclude that the word “National ” used in this connection has acquired something more or something less than its generic sense, and that as so used it has all the attributes of a descriptive term, means a party, and party is the National Democratic Party, as distinct in meaning and purpose from the Democratic Party, as is the Republican Party, and that it is so generally understood by all citizens and voters who can read. In this view, the consideration of words as constituting and infringment of trade-marks, or that generic words may not be so used or adopted as to become vested with property rights, has no application. But the word is to be considered in the connection in which it is used, in order to determine the meaning conveyed ; and although it may be entirely arbitrary, yet, if its sense and meaning is clear in the connection in which it appears, that signification will be attached to it. It follows from these views that the use of the words as a party designation infringes no right of the Democratic Party, and is not in violation of the statute.

The order in this respect should be reversed, with .$10 costs and disbursements.

The order appealed from, so far as it overrules and reverses the determination of the board of elections in the city of Brooklyn that the certificate of the nomination of the complainant is not a party certificate, is affirmed. So far as it sustains the determination of the board of elections that the party name “National Democratic Party" is substantially the same name as the “Democratic Party,” the order is reversed; and the determination of the board of elections of the city of Brooklyn to the same eEect is also reversed.

BROWN, P. J., and BRADLEY, J., concurs.

OULLEN, J.

—I dissent from so much of the opinion of Mr. Justice Hatch as holds that the name “National Democratic Party” is not substantially the same as “Democratic Party.” I do not sajr that there is an exclusive or prescriptive right to the names “Democratic” or “Republican” to such an extent that a third party might not properly, under the statute adopt the name of “Independent Republican” or “Reform Democratic,” because the very words “Reform" or “Independent” would indicate to every mind familiar with American politics that the ticket was not that nominated by the regular organization. But the term “National Democratic Party” or “National Republican Party” would convey no such signification. I think the natural thought suggested by the use of those terms in common conversation is the idea of the regular party in its,entirety through the whole country, as distinguished from the party organization in a state. I see no evidence of the fact that the term “National” in reference to the Democracy hag by length of usage assumed in the general understanding of the community a particular significance. It is dangerous to assume such fact in the case of a party organization which has been in existence but a few months. I make bold to assert that this party is referred to colloquially by the terms “Sound Money Democrats” or “Gold Democrats” a hundred times where it is once mentioned as the “National Democratic Party.”

The reverse rule should be applied here to that applicable to the question of the right of an organization to have its tickets printed on the official ballot. In the latter case, under our most restrictive ballot law, which (if constitutional) is almost destructive of independent voting, a party deprived of place on the official ballot is practically and in fact deprived of an opportunity to receive votes at all. The court should therefore be astute and keen to so construe the law and facts as to give every body of citizens a fair chance to express their will by the ballot box. But no injury or hardship is done the independent voter or dissenting organization when it is required that new names should indicate affirmatively or even almost aggressively the fact that the ticket is not that of the old or regular organization. The name here adopted is, to say the least, so dangerously close and similar to that of the old organization that it should not be allowed to stand. The Independent Party has run its candidates for office at two elections under its name of “Democratic Party Reform Organization.” There is no reason to suppose that under the same designation it will not receive the votes of all persons intending to support it, and the change of name proposed should not be now allowed.

BARTLETT, J., concurs in the foregoing opinion of Mr. Jus tice CULLEN.


author: ADAMS, J.

text:
    People ex rel. Phillips v. Thomas H. Sutherland et al.

    (Supreme Court, Appellate Division, Fourth Department,
    October 16, 1896.)
    Contempt of court—Recanvass of votes.
    Election officers, ordered to reoanvass alleged" defective ballots, which ■had been rejected by them, and to reject “ only such ballots as the law declares void and not to be counted,” and not to reject any ballots “for any technical error which does not make it impossible to determine the voter’s choice,” and directed that every such ballot cast shall be “ counted in the manner prescribed by law,” but given no more specific instructions, cannot, in the absence of bad faith, be punished for rejecting ballots which, in the opinion of the court, ought to have been counted.
    Appeal from special term, Erie county.
    Application by John L. Phillips for mandamus to Thomas H Sutherland and others, as the board of inspectors of the village of Castile, to recanvass votes. From an order adjudging defendants in contempt, and imposing a fine of $10, defendants appeal.
    Eugene M. Bartlett, for appellant.
    Nelson E. Spencer, for respondent.
   ADAMS, J.

—The relator and the appellant Sutherland were opposing candidates for the office of president of the village of Castile, at the annual charter election held in that village upon the 17th of March, 1896, and the remaining appellants were the duly-appointed inspectors of that election; the appellant Smith being also clerk of the village. Upon a canvass of the ballots cast at such election, the inspectors rejected 25 from the count, in consequence of which the appellant Sutherland was declared elected by a majority of six votes. These ballots appear to have been rejected by reason of the fact that they were marked with a cross placed at the left of the relator’s name, but not within the rectangular space which was provided for that purpose. Upon the 3d day of April following the election, the relator obtained an alternative writ of mandamus, which was served the following day, and which, in terms, required a recanvass of the votes in manner prescribed by law, and to this writ the appellants made a return of compliance. Upon application of the relator, showing that upon the recanvass 18 votes were rejected upon the ground that the electors’ choice could not be ascertained therefrom, and claiming that, as a matter of fact, the choice of such electors was clearly manifested thereby, an order to show cause in contempt proceedings was duly granted, upon the return of which the order appealed from was made, which adjudged the defendants guilt of contempt of court, and imposed upon them a fine of $10 therefor.

It is provided by section 104 of chapter 810 of the Laws of 1895, known as the “Election Law ” of this state, that the voter, in order to designate upon the official ballot the candidate of his choice, shall “ make a cross (X) mark on the left of and opposite the name of each and every candidate of such party in the blank space provided therefor. ” It is also provided by section 81 of the same act that there shall be attached to the ballot upon which the voter is make his choice of candidates a stub, upon the face of which shall be printed, in brevier capital letters, the following direction, viz. : “Any mark or erasure on this ballot, except as above indicated, makes this ballot void and it cannot be counted. Use only a pencil having black lead.” And it is contended by the appellants that this direction was to be treated as though it were a part of the statute itself, and mandatory in its character, while, upon the other hand, it was urged that the departure in this instance from a strict compliance with the direction upon the stub of the ballot was a mere technical error, which did not call for a rejection of the 18 ballots in question, and that the case was brought within the provision of section 104 of the election law, which reads as follows : “No ballot shall be rejected for any technical error which does not make it impossible to determine the voter’s choice. ” Without passing upon the question which is thus presented, we have reached the conclusion that the order appealed from must be reversed for another reason. It will be discovered by a careful reading of the order to show cause, which forms the basis of the order from which this appeal is taken, that the defendant Smith was directed to return the certified canvass of votes filed in this office to the board of inspectors for correction, and that such inspectors were required to forthwith reconvene and recanvass the alleged defective ballots attached to such statement; that upon such recanvass they were to reject “only such ballots as the law declares void and not to be counted, and that they also, ordered not to reject any ballot for any technical error which does not make it impossible to determine the voter’s choice; that every such ballot cast shall be counted in the manner prescribed by law.” Thus, it will be seen that the whole manner of recanvassing these ballots was relegated to the inspectors •of election, with no specific direction as to how such recanvass was to be conducted, further than that they were to follow the language of the statute, thereby practically imposing upon them the duty of ■of giving construction to the statute itself. This duty manifestly ■called for the exercise of a judicial function, and in the absence of any bad faith, of which no charge is made, it is impossible for us to say that the inspectors have not exercised their best judgment -in. the matter. At all events, inasmuch as the order contained no .■specific directions other than such as were to be found in the statute, we fail to see why the appellants should be punished for contempt because their judgment was not in accord with that of the court which made the order appealed from. A proceeding for contempt is quasi criminal in its character, and we are clearly of ■the opinion that, before a party can be adjudged guilty of such an ■offense, the duty required of him, in such a case as the one under •consideration, should be made perfectly plain and specific. That, as we have seen, was not done in this case, in consequence of which we think that the order appealed from should be reversed, with $10 costs and disbursements.

Order reversed, with $10 costs and disbursements.

All concur.


text:
    Commercial Bank v. Moses Foltz et al.

    (Supreme Court, Appellate Division, Fourth Department,
    October 16, 1896.)
    Appeal—Postponement oe decision.
    Decisions oí appeals by defendants from orders settling issues to be tried by jury, and denying motion to correct order denying plaintiff’s motion to strike out amended answer, will stand over till it be determined whether appeal be taken from the final judgment; it appearing that the trial has been completed before the special term, and a judgment of foreclosure entered for plaintiff, and the property sold thereunder, and that no appeal has been taken from the judgment.
    Appeal from special term.
    Action by the Commercial Bnnk against Moses Foltz and otherr, from an order settling issues to be tried by a jury, and from an order denying motion to amend the order, defendant Foltz appeals; and from an order denying defendant Benjamin Catto’s motion to correct an order denying plaintiff’s motion to strike out said Cat.to’s amended answer, and denying his motion to vacate another order, denying plaintiff’s motion to strike out amended answer, said Cutio appeals.

      John Van Voorhis, for appellants.
    Edward Harris, for respondent.
   PER CURIAM.

—It having been conceded on the argument of these appeals that the issues of fact settled by the special term have been tried before a jury, and determined in favor of the plaintiff; that the trial has been completed before the special term, and a judgment of foreclosure upon the verdict of the jury and the decision of the special term has been entered, and the property sold; and that no appeal has been taken from the judgment,—the-decision of these appeals should stand over until it shall be determined whether an appeal is taken from the final judgment. After that event either party has the right to move this court to decide- or dismiss these appeals.


text:
    William J. Dowdle v. William F. Bayer et al.

    (Supreme Court, Appellate Division, Fourth Department,
    October 16, 1896)
    1. Sale—Implied wabbanty—Quality of goods.
    A warranty that goods are merchantable is implied where the contract of sale, made at the residence of the buyer, to which the goods were to be-shipped from another part of the state, was merely a memorandum that ho bought goods of a certain description, and at a certain price “f.o.b. cars."
    2. Same—Acceptance oe goods.
    The removal of a wagon load of goods from a car by the buyer’s servants, who thereby discover that the goods are infei'ior, and so inform the buyer, who inspects the shipment, and immediately notifies the seller of his rejection of it, is not an acceptance by the buyer.
    Appeal from special term, Tioga county.
    Action by William J. Dowdle against William F. Bayer and Alonzo McOonihe for the price of a car load of posts delivered to defendants. There was a judgment in favor of plaintiff, and defendants appeal.
    J. S. Wheeler, for appellants.
    George N. Burt, for respondent.
   ADAMS, J.

—This action was brought upon a contract entered into between the parties, by which the plaintiff agreed to sell and deliver to the defendants a car load of cedar posts. The plaintiff resides at the city of Oswego, and the defendants at the city of Troy, at the latter of which places the contract in question was entered into, on the 6th day of June, 1893, and a written memorandum thereof was made, of which the following is a copy:

Troy, 6—6—1893.
“ Bought this day of W. J. Dowdle 1 car load of 600 pieces 8-ft. cedar posts, 4 inches and over at top end. and being largely 4^- and over, with but a small percentage 4. Price, 16c., f. o. b. cars; here. Bayer & McOonihe.'’

Upon the 15th day of June following, the plaintiff shipped to> the defendants a car load of posts by the Delaware, Lackawanna & Western Railroad Company, The car contained 975 posts, instead of the timber specified in the memorandum, and reached the city of Troy on or about the 23d day of June, and upon its arrival the defendants’ employes started to unload the same, and, in doing so, discovered that the posts were of an inferior quality. The fact was communicated to the defendants, one of whom immediately went to the car, and examined such of the posts as had been removed from, as well as those which remained upon, the car; and, becoming satisfied from such inspection that the posts were not of a merchantable quality, directed that such of them as had been taken from the car should be returned, and immediately notified the plaintiff that the defendants declined to accept the postsf for the reason that they were not the quality ordered.

The issues joined in this action were referred to a referee to hear and determine the same, and he found as a-fact in the case that the posts in question were purchased upon an implied warranty that they were to be merchantable in quality, and that the same-were not merchantable, but that tthe taking of a wagon load of posts from the car was the exercise of such an act of ownership on. the part of the defendants as amounted to a waiver upon their part of the plaintiff’s breach of the contract; and, as a conclusion of law, he has found that the defendants were liable to the plaintiff upon the contract in the sum of $64.65.

We find ourselves unable to concur in this conclusion of the-learned referee. The contract of sale in this case was executory in its character, and the referee was unquestionably justified in finding that it carried with it an implication that the posts in question should be of a merchantable quality, and that, as a matter of fact, they did not answer that description. This being the case, the defendants were not bound to accept the posts until they had been afforded a fair and reasonable opportunity to inspect the same, and satisfy themselves that they corresponded in quality with those purchased. In other words, this was a case where a defendants were called upon to make inspection within a reasonable length of time after the opportunity to do so was afforded, and then either to accept or reject the posts, and, in case of rejection, to at once notify the vender thereof. Sprange v. Blake, 20 Wend. 61; Pierson v. Crooks, 115 N. Y. 539, 26 S. R. 492.

We think the defendants did nothing which can justify be regarded asan acceptance of these posts. As soon as they learned from their employes that the posts were inferior in quality, they made personal inspection of the same, and directed that the single-wagon load which had been taken from the car, but not removed, from the freight yard should be replaced upon the very same day notified the plaintiff of their refusal to accept the same. This, it, seems to us, was all they were called upon to do; and, in view of the established fact that there was a breach of the contract upon the part of the plaintiff, we are unable to see upon what principle he is entitled to recover in the action. We think, therefore, that the judgement should be reversed, and a new trial directed, with costs to abide the event.

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

All concur.