author: Hall, J.

text:
    Catharine Brennan, Resp’t, v. Germain Lachat, Appl’t.

      (City Court of New York, General Term,

      Filed December 28, 1886.)
    1. NEGLIGENCE — LANDLORD AND TENANT — TENEMENT HOUSES — DUTY OP LANDLORD TO KEEP TENEMENT IN REPAIR.
    It is the duty of the landlord of tenement and lodging houses, to keep the stairways and passages which are used in common hy all the tenants, in good and sufficient repair, and for a breach of this duty and the injuries resulting, he is liable to the party injured, provided that such want of repair has been called to his attention by direct notice, or has existed for so long a time as to imply notice.
    2. Same — Contributory negligence.
    It is not necessarily contributory negligence for a tenant to use the stairs the dark, knowing that they are out of repair.
    3. Pleading-NVhat a sufficient statement of facts in complaint.
    Where the duty of the defendant and its breach are clearly set forth in the complaint, it is not necessary or proper to say in so many words that defendant owed a duty or that he failed to perform his duty.
    4. Evidence — Competency.
    It is competent to show that after the accident, which resulted in the injury, happened, the broken material which caused the accident was replaced hy sound material as a mere matter' of fact, but it is incompetent as tending to prove negligence.
    Appeal from a judgment entered upon a verdict of a jury at trial term and from an order denying defendant’s motion for a new trial.

      JEmile Benneville, for appl’t; Peter Mitchell, for resp’t.
   Hall, J.

The defendant was the owner of a tenement house at Number 9 Yarick place, having accommodation for nine families or more, and having common stairways for the use of all the occupants of the house.

On and prior to the 5th of May, 1885, the plaintiff and her family occupied an apartment in said house, and on the evening of that day in descending the stairway her dress caught in some obstruction on the stairs by reason of which she was thrown violently down tlie stairs causing her severe injuries, for which this action is brought, and upon the trial a verdict was rendered for four hundred dollars damages.

The duty which the defendant owed to the plaintiff and other tenants in his house was to keep the stairways and passages which were used in common by all the tenants, in good and sufficient repair, and for a breach of this duty and injuries resulting, he is liable to the party injured, providing that such want of repair has been called to his attention by direct notice, or has existed for so great a period of time as to raise a presumption of notice by implication of law.

This has been the law for many years, founded in justice and reason, and established by an unbroken line of authorities which it is needless to cite, and in addition to the decisions the statutes of the state having reference to the city of New York especially provide that in all tenement and lodging houses the stairs shall be provided with proper banisters and railings and the stairways shall be kept in good repair. In the absence of a special agreement to the contrary this duty would devolve upon the landlord, as the stairs are reserved for general use, and the generalrule as to repairs as between landlord and tenant does not apply.

The duty of the defendant and its breach are clearly set forth in the complaint and were proven on the trial, it is not necessary or indeed proper to say in a complaint in so many words that defendant owed a duty or that he failed to perform his duty, this would be a conclusion which the law would deduce from the facts.

The complaint sets forth the facts out of which the duty arose, viz.: the ownership of the house by defendant, its use as a tenement house and the fact that the passages and stairways were used in common by ail the tenants and the occupancy of an apartment by plaintiff for hire, and the conclusion of law arising from those facts is that defendant owed the duty to plaintiff to keep the passages and stairways in good repair.

The breach of the duty consists in allowing the stairways to be out of repair, and covered with metal which was worn and broken and the edges of which were sharp and ragged and curled up, and the injuries to plaintiff arose from this condition. All these facts are carefully set forth in the complaint, and evidence was given to substantiate them upon the trial.

The evidence as to the condition of the stairs, and the notice to and knowledge by defendant of such condition and as to the manner in which the injury was caused, was conflicting, but was passed upon by the jury, and is abundantly sufficient to sustain their verdict.

The defendant’s third request to charge was properly denied. It requested the court to charge that there was no evidence of any duty imposed ou tbe defendant wbicli was violated, or of any contract obligation between plaintiff and defendant which had been violated. To charge as there requested would have been equivalent to directing a verdict in favor of defendant.

There was plenty of evidence given to show the relations of the parties out of which the law raises the presumption of a duty and the same may be said in regard to the breach of violation of the duty.

The fourth request to charge was properly refused; except as had been before charged upon that point, it would have been needless repetition. The charge of the judge on the question of contributory negligence was full, clear and explicit, and it was not necessary to repeat it in terms. The trial judge repeated in three separate portions of his charge that the plaintiff’s recovery depended upon her freedom from contributory negligence, and he calls the special attention of the jury to the contention and claim of the defendant in regard to plaintiff using the stairs in the dark knowing that they were out of repair, and correctly left it to them to say whether, under the circumstances disclosed by the evidence, it was or was not prudent for her to use them; and if such use of them was negligence which contributed to her injury they were instructed to find for defendant. This was a full and fair statement of the law and was all that defendant had the right to ask or expect. Palmer v. Dearing, 98 N. Y., 10.

The only exception to the admission of evidence was the question asked of the witness Brennan as to whether there were' any alterations made to the stairs after the accident.

It is the general rule that negligence cannot be proven by evidence tending to show that after the happening of an accident something was done to alter the condition of things as they before existed, because it may well be that although a party had not been negligent, he might in the event of an accident-which was not caused by any fault of his, take precautions to prevent the recurrence of such an accident, and that such an act should not be proven against him so as to raise therefrom a presumption that he had been negligent in causing the previous, accident; but the question objected to in the case at bar, was plainly asked for the purpose of ascertaining whether any thing had been done by defendant or any one to remove the broken or worn out covering of the stairs so that it could not readily be. ascertained what had caused the accident, and the answer clearly shows that the witness so understood the question that upon the steps where plaintiff had fallen there were small pieces of tin and they had been taken off, “ they removed the pieces and smoothed the place.” The defendant and his witnesses were afterwards allowed without objection to testify as to exactly what was done the next day.

The evidence was clearly competent as tending to show that defendant had removed the cause of the accident.

The cases cited by appellant are all cases where it was attempted to be shown that after an accident a different and perhaps safer mode of structure or, preventive, or a different mode of conveyance or rate of speed was adopted after an accident, except the case in the 31st Hun, where it was attempted to be shown that some months after an accident happened in the hallway of a tenement house by reason of a defective oilcloth covering that the landlord put down a new one; there can be no question but what such evidence is incompetent as tending to prove negligence.

If an accident happened upon a railroad by reason of a broken rail, it would be quite competent to show that after the accident the broken rail was removed and replaced by a sound one as a mere matter of fact, but it would be incompetent to show that after the accident a different make and style of rail was used as tending to show negligence in using the style of rail upon which the accident took place.

It follows that the judgment and order denying the motion for new trial must be affirmed with costs to respondent.

Hyatt and Ehrlich, J.J., concur.

      . Affirmed, 6 N. T. State R.


source: Caselaw Access Project

license: Public Domain

text:
    Jacob D. Butler, Resp’t, v. Smith’s Homeopathic Pharmacy, Appl’t.

      (City Court of New York, General Term,

      Filed December 28, 1886.)
    1 Landlord and tenant — when tenant cannot claim to have been EVICTED.
    A lessee cannot go on and occupy premises and then claim an eviction.
    2 Same — Written lease cannot be varied by parol.
    The rule that a written instrument cannot he varied or contradicted by prior or contemporaneous negotiations and oral promises, but that all such promises and conversations are merged in the writing, applies to a written lease
    Appeal from a judgment in favor of plaintiff, entered upon the verdict of a jury at trial term and from an order denying defendant’s motion for a new trial on the minutes.

      Creo. 0. Holt, for applt’; Jno. Q. Shaw, for resp’t.
   Hall, J.

The plaintiff and defendant executed two leases in writing which were duly delivered, by one of which plaintiff demised to defendant “ part of the first floor above the store in the building known as No. 37 W. 14th street in the city of New York, with the use (in common) of steam elevator (without attendance), steam heat and belt power, to the extent of and not to exceed one house, to be conveyed by a belt one inch wide.”

By the second lease, made some eighteen days afterwards, plaintiff demised to defendant, tbat portion of tbe westerly side of store in the building known as No. 37 W. 14tli street in the city of New York, commencing at a point immediately adjoining the elevator which adjoins the front show window, and running thence northerly a space not to exceed eight feet in length and one foot in width, also privileged to place a settee adjoining said space, said settee to be used in common with the other tenants on the westerly side of said store, .... simply as a place to exhibit and show their samples and to induce sales, to be heated by steam, privilege to use elevator from said store to floor above.

The leases are separate and distinct, and made at different, times and each is a complete instrument in itself, containing all the usual covenants, and it is not claimed that defendant was induced to execute them through fraud or mistake.

This action is brought to recover rent for the months of November and December'1885, under said leases. The complaint, contains two separate causes of action, one upon each lease.

The defense was a constructive eviction of defendant by reason of plaintiff’s neglect and refusal to carry out the terms of the leases, and the terms of certain verbal agreements alleged to have been made both before and after the execution of the ■leases.

The defendant occupied the premises for the greater part of the month of November, and upon the trial admitted that it. owed the rent for that month and that a note had been offered for the same.

There was no claim that any of the covenants of the second lease had been broken except that it was claimed that°the two leases should be treated as one instrument, and that therefore the covenants of the first lease as well as the verbal stipulations-applied also to the second. •

Under these circumstances the court directed the jury in any event to find a verdict for plaintiff for the November rent under the first lease, and for both months under the second.

This direction was clearly right, the defendant had occupied, the premises under both leases during most of the month of November and the rent became due on the first of that month,, the rent accrued under the terms of the lease and not by reason of use and occupation, but aside from this it is too well settled, to be disputed, that a lessee cannot go on and occupy premises and then claim an eviction, and this is the only defense set up in the answer, no claim is made for damages as an offset to or reduction of the rent.

But defendant’s president admitted upon the trial that the-November rent was owing and that he had offered to pay it by a note, and in the face of this admission I fail to appreciate the force of defendant’s argument on that branch of the case..

As to the December rent under tbe second lease, it is sufficient to say that there is no evidence to show a breach of any covenant of that lease which would amount to a complete or partial eviction from the premises thereby demised, and as the lease is a separate," complete instrument, entirely independent in its terms from the first lease, I can see no ground of defense, even if the evidence had been admitted to show the alleged verbal agreements ; they had no application to the premises demised under the second lease.

The other objections and exceptions in the case all pertain to the refusal to admit evidence to show conversations and verbal understandings between the parties prior to the execution of the leases, and an oral agreement claimed to have been made after the leases were delivered.

It is a thoroughly well settled and understood rule of law that the colloquium or conversation, forming the whole or part of the negotiations leading up to and culminating in the execution of an agreement in writing, cannot be given in evidence, to vary or contradict the writing, and indeed, were it otherwise, the very object of the writing would he defeated.

A contract, the terms of which have been agreed upon verbally, is reduced to writing for the purpose of avoiding the uncertainty and frailty of human memory or the falsehood or perversity of witnesses, and there is no exception to the rule above stated except in cases where the alleged verbal contract is collateral to and not inconsistent with the writing; or by reason of fraud or mistake some vital element of the verbal contract has been omitted from the writing.

The parties to a written contract have an opportunity of examining it before signing and if it fails to state the entire agreement or misstates any portion of it, it can he rejected. It is not claimed or assertedin the case at bar that defendant did not have a full opportunity to examine the leases before signing or that their execution was induced by fraud or mistake ; defendant was bound to know what the leases contained before signing them.

If the covenants complained of could be altered by parol, why not the covenant in regard to the rent or term ? I have made a very careful examination and study of all the cases in this state, which seem to form exceptions to the rule above stated, including those cited on the very elaborate and studious brief of the appellant, but I fail to find that any of them fit the facts in this case so as to bring it within any one of the exceptions to the general rule.

It has been decided by the highest court in tins state, in a case on all fours with the case at bar, that the written instrument cannot be varied or contradicted by prior or contemporaneous negotiations and oral promises, but that all such promises and conversations are merged in the writing. Wilson v. Deen, 74 N. Y. 531.

.That was an action to set aside a written lease of a furnished bouse on the ground that, before the execution of the lease, the lessor had agreed orally, to supply deficiency in the furniture of the house, so that the house should be completely furnished, which the lessor failed to do.

At the trial the lessees proved these facts, against the objection of the defendant lessor, and the lease was set aside, but this decision was reversed by the court of appeals, and in a long and elaborate opinion by Rapaelo, J., the rules of law are clearly stated.

In that case the lessor knew that the house was to be .used as a boarding house and that the lessee had no means of supplying any deficiency in furniture, and the lease was made in express contemplation of these facts.

But the court says * It does not appear that any condition was attached to the delivery of the lease, but, at the time' of its execution each party took one of its counterparts.”

Again the court says, “ that the contract cannot be controlled by evidence that it was executed on the faith of contemporaneous or preceding oral stipulation not embraced in it ” in the absence of fraud or mistake.

The lessee in that case read the lease and knew its contents and knew that it did not contain the stipulation to supply the furniture, so it could not be claimed that there was any mistake.

The court says, that, whatever the doctrine in England or Pennsylvania, “ the current of authority in this state sustains the proposition that, both at law and in equity, one who sets his hand and seal to a written instrument, knowing its contents, cannot be permitted to set .up that he did so in reliance upon some verbal stipulation, made at the time, relating to the same subject, and qualifying or varying the instrument which, he signs. The very purpose of the rule which excludes evidence of such declarations is to avoid the uncertainties attendant upon such evidence and equity will not set aside that important and well settled rule for the purpose of relieving a party against a risk, which, upon his own showing, if it be true, he has voluntarily incurred.”

It will be noticed that in the case cited the lessee never went, into possession of the premises at all, whereas in the case at bar the defendant occupied the premises for six months.

This case has never been questioned, and is the law of this state to day; true, it is referred to in the opinion in Chapin v. Dobson 78 N. Y. 81., but is not doubted as good law, but is not an authority upon the facts of that case. See also, Speckels v. Sax, 1 E. D. Smith, 253.

As regards tbe promises alleged to have been made after tbe lease bad been delivered the same general rule applies. Mott v. Richtmyer, 57 N. Y., 49-59.

But it was expressly stated on tbe trial wben this evidence was offered that it was not claimed that there was any new consideration for tbe promise and therefore it was inoperative. Coe v. Hobby, 72 N. Y. 141; Hastings v. Lovejoy, 2 N. E. Rep. 776.

In any event if there bad been a new collateral agreement made, founded upon a good consideration, a breach of such agreement would not amount to an eviction under tbe leases, although defendant might have an action for damages for breach of such new agreement.

The trial judge was therefore right in excluding the evidence as to oral stipulations or agreements.

The question as to whether there had been a substantial breach of any of the covenants of the first lease was properly submitted to the jury, under a proper and careful charge, and the verdict of the jury, sustained as it is, by sufficient evidence cannot be disturbed.

The judgment and order denying motion for a new trial must be affirmed with costs to respondent.

Hyatt and Ehkltch, JJ., concur.


text:
    Samuel H. Randall, Appl’t, v. John Dwight, Resp’t.

      (City Court of New York, General Term,

      Filed December 28, 1886.)
    PRINCIPAL AND AGENT — SPECIAL AGENT — DUTY OF THOSE DEALING WITH— Employment oe attorney.
    A person dealing witli a special agent is hound to ascertain the extent and limit of the special authority and if he fail to do this the risk is upon him that the transaction may fail to be binding upon the alleged principal. Evidence insufficient to show authority to employ an attorney and bind the principal to compensate him.
    Appeal from a judgment in favor of defendant, entered upon the dismissal of the complaint at trial term.

      Samuel H. Randall, for appl’t in person; A. P. Keteham, for resp’t.
   Hall, J.

This action was brought by plaintiff to recover for professional services as an attorney, in procuring, the discharge of one Henry J. Smith, who had been arrested on a charge of perjury.

The plaintiff never met the defendant personally, nor did he ever receive any communication directly from him, but transacted the entire business as to employment and compensation with one Alexander P. Keteham, who is also a lawyer, and a son-in-law of defendant, and wbo is claimed by plaintiff to have been tbe agent of defendant in the entire transaction.

It is not claimed or asserted by tbe plaintiff that Ketcham, either by reason of his relationship to defendant or otherwise, was the general agent or attorney for defendant, but he relies entirely upon the assertion that the evidence offered by him upon the trial was sufficient to establish a special agency in Ketcham to employ him as a lawyer and arrange for his compensation.

It is a well settled and elementary principle of law, founded in justice and reason, that persons dealing with special agents-are bound to ascertain the extent and limit of the special authority, and if they fail to do this the risk is upon them that the transaction may fail to be binding upon the alleged principal.

The only evidence offered by plaintiff to establish a special agency in Ketcham, was that given by the witnesses Richardson and Boyle.

Mr. Smith (plaintiff’s client), had been arrested early in March and plaintiff was retained by Mrs. Smith at about that time, and proceedings were had before the Police Justice which resulted in Mr. Smith being held to await the action of the grand jury; all this was long before any application was made by plaintiff to defendant.

The first communication plaintiff had with defendant was on May 13th, and the first conversation with Mr. Ketcham the alleged agent, was on May 18th, and Smith was discharged about May 21st or 22d by reason of failure of the grand jury to find an indictment against him.

The plaintiff’s communication to defendant of May 13th contains no intimation of a request by plaintiff to be retained by defendant as an attorney, it merely refers to the fact that Mrs. Smith had mentioned to plaintiff her intention to apply to defendant to furnish bail for her husband and then after referring to Mr. Ketcham’s call upon him, he goes on to say that if any of Mrs. Smith’s friends could furnish $150, the matter could be arranged so that Mr. Smith could be discharged, and suggests, that perhaps defendant would be willing to aid in that direction.

There is not a single word or intimation in this letter as to employing the services of plaintiff as a lawyer or compensating him, nor is there any request or understanding that defendant should furnish all the money required, but it says “if any of Mrs. Smith’s friends could provide some money, say $150,” and again, “ perhaps you would be willing to aid in that direction.”

This letter was presented to defendant while he was sick in bed, by the witness Richardson, and after complaining that he did not see why he should be troubled, and that he thought it rather hard that he should be annoyed during his illness by such request, be said “ he would see Mr. Keteham and leave th& matter with him.”

The witness Boyle testifies that about the 10th of July he took a letter to defendant and defendant said “ he had left the matter with General Keteham, and would refer the letter to him,” and being recalled later he testifies that defendant said to him that he thought that as plaintiff had got Smith out, that he (Smith) ought to go to work himself and pay plaintiff and relieve defendant of this burden, and again in answer to a leading question he testified that defendant had said to him that he had left the matter with Mr. Keteham to arrange and that he had entire charge of it.

This is the entire evidence upon the question of the agency of Mr. Keteham, and while it might be sufficient to raise a presumption of agency in Mr. Keteham to assist in procuring bail for Smith, or to see Mrs. Smith’s friends and attempt to raise money or even on behalf of defendant, to contribute or aid in raising money, it falls far short of an authorization of Keteham to retain plaintiff as an attorney for defendant, and to fix his compensation as such, and it must be borne in mind that this action is not based upon any agreement to aid in procuring bail or raising money, but solely upon an employment and retainer of plaintiff as attorney for defendant.

I am clearly of opinion that there was no sufficient evidence to gó to the jury to establish the agency of Mr. Keteham, and that the motion to dismiss the complaint was proper.

The judgment must be affirmed with costs to respondent.

Hyatt, J., concurs.


text:
    Kanute Forsberg, Resp’t, v. Orange Judd Company, Appl’t.

      (City Court of New York, General Term,

      Filed December 28, 1886.)
    Principar and agent — Editor of journar — Power to bind proprietor.
    The mere fact that a person is an editor of a journal or periodical does not in law clothe him with power to bind the publisher or proprietor to pay for any contribution which he accepts; the legitimate functions of an editor imply no such power.
    Appeal from a judgment entered upon a verdict in favor of plaintiff at trial term, and from an order denying defendant’s motion for a new trial.

      JE. B. Hinsdale, for appl’t; .Boscoe H. Qhanning, for resp’t.
   Hall, J.

The facts of this case as settled by the verdict of the jury upon sufficient evidence, are that the plaintiff is a landscape architect, engineer and technical agriculturist, of some eminence in his profession; the defendant is a corporation., ■publishing a periodical called “ The American Agriculturist,” and also carrying on a book business.

Mr. David W. Judd was the president, and Mr. Burnham the secretary of defendant, and Dr. Thurber was the editor in chief of the periodical published by defendant, and Col. Weld and Dr. Hexamer were assistant editors.

Prior to March 1885, the plaintiff had prepared an article on the general subject of high culture in the United States as applied to lands, which was entitled “Everyman his own landscape gardener,” which article he left with the secretary of defendant who agreed to give it to the editor in chief to see whether he would accept it. After it had remained with the secretary for two months, plaintiff called at defendant’s office and the secretary took the manuscript from his desk and sent it up to Dr. Thurber because, as he said, Dr. Thurber was the editor and he had to decide, and Dr. Thurber said he would take it home and look it over.

After this Dr. Thurber said to plaintiff that he could not publish it as one article; it must be divided into small articles accompanied by drawings and illustrations. Plaintiff divided it into four articles, entitled all under the general head of “every man his own landscape gardener,” and the four separate articles entitled respectively “preliminary survey,” “location of grounds,” “project for drainage and planting,” and “ perspective and general views;” and each of these four articles comprised an integral part of the whole general subject. Plaintiff presented the four articles to Dr. Thurber, and there is evidence sufficient to show that he accepted them, and the first one of the series was published and paid for, and the others, or some of them, were corrected by an assistant editor, and Dr. Thurber ordered them paid for, which was not done.

The question of law presented in the ease is whether this acceptance by Dr. Thurber as editor in chief, was, under the circumstances disclosed by the evidence, sufficient to bind the ■defendant corporation.

It must be conceded that the mere fact that a person is an editor of a journal or periodical, does not in law clothe him with power to bind the publisher or proprietor to pay for any contribution which he accepts. The legitimate functions of an editor imply no such power. It maybe and doubtless is the custom for many publishers of periodicals to invest the editor with unlimited power in that direction, but then the authority arises out of the grant of power and not out of any inherent right attaching to the position of editor.

But even in this view of the law I am of opinion that there was sufficient evidence to go to jury upon the question of the authority of Dr. Thurber to bind the defendant in the matter in dispute, and that the entire evidence having been submitted to the jury under an impartial charge, to wbicb defendant took no exception, the verdict should not be disturbed.

There are many circumstances disclosed by the evidence, no one of which perhaps standing alone is sufficient to establish the authority of the editor to bind defendant, but which taken together point strongly in that direction, and present a case out of which a question of fact arose which was properly submitted to the jury.

The plaintiff had been writing articles for half a year which had been published in defendant’s paper and paid for, and it nowhere appears that they had been submitted to the president. The secretary, Mr. Burnham, told plaintiff that Dr. Thurber would have to decide upon the matter ; the portion of the article published and paid for was of such a character as to show both by its title and its matter that it was only an integral part of’ an entire subject; and as this article was submitted to the president and afterwards published and paid for, it is some evidence-that he was aware of the actions of the editor. When a question arose as to the difficulty pf publishing all the articles immediately, Mr. Judd said to plaintiff that he (plaintiff) must not think that he should fill the whole journal; that is some evidence that Mr. Judd knew that there was more than one article. Mr. Judd in his direct examination was asked the question: “In the office of the “ American Agriculturist ” who has authority to reject or accept articles for publication?” and he answereds “Doctor George Thurber, the editor, and Dr. Hexamer, the assistant, editor; ” this certainly is evidence direct and positive as to the authority of the editor. It is true that the witness afterwards, qualified this statement, but the jury were entitled to determine whether or not the answer was a mere slip of the tongue or a misunderstanding of the scope of the question, but it would be manifestly improper for the court on appeal to entirely disregard it.

The exceptions to the admission of evidence have all been carefully examined, but none of them are sufficiently important to necessitate a reversal of the judgment.

The judgment and order denying motion for a new trial must, be affirmed with costs to respondent.

Hyatt and Ehklich, JJ., concur.


author: Hyatt, J.

text:
    Max Doctor and Simon Hatch, Appl’ts, v. Patrick J. Gilmartin, Resp’t.

      (City Court of New York, General Term,

      Filed December 28, 1886.)
    1. Fraud in obtaining goods — What peoof Necessary.
    Where' an action was brought for obtaining goods under false pretenses, Held, that before the plaintiffs could recover they had to prove that the defendant misrepresented a fact to them at the time the goods were sold to defendant, and that such misrepresentation was made with intent to defraud.
    2. Same — EVIDENCE — What sufficient.
    Fraud will not he presumed, it must be affirmatively made out by evidence. Attendant circumstances giving color, are insufficient, only circumstances tending to establish a probability of guilt of the accused are competent to maintain a cause of action based upon an alleged fraud.
    Appeal from a judgment dismissing a complaint of tbe plaintiffs upon tbe defendant’s motion át the close of tbe plaintiff’s •case.

      Charles A. Hess, for appl’ts; T. C. E. Ecele sine, for resp’t.

       Affirmed 6 N. Y. State R.

   Hyatt, J.

This action was brought to recover damages alleged to have been sustained by the plaintiffs by reason of the defendant having purchased goods from them, upon false and fraudulent representations made by the defendant to the plaintiffs

The alleged representations were that the defendant represented to the plaintiffs that the goods were purchased for one Thomas Gillen, who was pecuniarily responsible.

The defendant denies all the allegations of fraud.

The only contention presented is, did the plaintiffs upon the trial of the action establish the cause of action alleged in the •complaint.

This action was brought for fraud, and the plaintiff cannot recover unless he proves fraud.

It is elementary law that fraud consists in making some misrepresentation as to an existing fact, and that fraudulent representations require these elements; first, that the party to whom they are made relies upon the representations; second, that the statement is false ; third, that' the party making the statement knew it to be false at the time.

These elements are required to be unquestionably established, for the reason that the purpose of an action for fraud, is to imprison the defendant.

The learned counsel for the plaintiffs states in his brief that the sole question at issue was, whether the defendant represented himself as the agent of Gillen, and suggests that the trial judge decided the case upon a point not in issue.

We think that in this view he is in error.

A careful examination of the evidence does not disclose that the defendant represented himself as- the agent of Gillen. We cannot find from the evidence that he ever represented himself to be the agent of Gillen.

Counsel for the plaintiffs in his brief states that the issue was not, whether the defendant was in fact agent for Gillen, but whether he represented himself to be such agent. If this is so, how can the latter representation constitute the issue in this action, the evidence adduced upon the trial established the fact that he purchased the property for his wife and not otherwise, which was known to the plaintiffs.

The testimony of Hatch does not establish that the defendant made any representations to procure credit from the plaintiffs.

Before the plaintiffs could recover they had to prove that the defendant misrepresented a fact to them at the time the goods were sold to defendant, and that such misrepresentation was made with intent to defraud; until that is established the plaintiffs cannot recover in this action. Morris v. Talcott, 96 N. Y., 100.

The questions excluded on the trial were properly so excluded.

The plaintiffs proved the power of attorney from Thomas Gillen to the defendant to carry on the business at Spring and Mott streets; such proof was only competent evidence to prove what business the defendant could carry on and do as the attorney of Thomas Gillen, and the time when, and place where he could so conduct the business.

Plaintiffs’ counsel urges that this power . of attorney was introduced as one step in proof of plaintiffs’ case as one of the attendant circumstances giving color to the plaintiff’s claim that representations of agency were made.

Such proof in the case at bar would have been absolutely incompetent.

Fraud will not be presumed, it must be affirmatively made out by evidence. Nelson v. Luling, 62 N. Y., 645.

Attendant circumstances giving color are insufficient; only circumstances tending to establish a probability of guilt of the accused are competent to maintain a cause of action based upon an alleged fraud. Morris v. Talcott, supra.

The complaint was properly .dismissed. The judgment must be affirmed with costs.

Hall, J., concurs.


text:
    Edward Goodenough, et al., Appl'ts, v. Irving W. Fuller, Resp’t.

      (City Court of New York, General Term,

      Filed December 28, 1886.)
    1. CONTRACT FOR ADVERTISING-WHEN ENTIRE — EFFECT OF RESCISSION-Right to rescind.
    The plaintiffs entered into seven separate contracts with defendant whereby defendant agreed to place a certain advertisement in a certain number of street cars in various cities at an agreed price for varying periods of time. The defendant entered upon the performance of ■ the several contracts and was paid sums of money from time to time on account amounting in all to $285.84. , Plaintiffs complained at various times that defendant was not performing his contract and finally wrote defendant saying that he had failed to fulfill his contract, and for that cause gave notice that they rescinded all contracts with defendant. This action was commenced by plaintiffs to recover the $285.84, paid to defendant on account of the contract, alleging it was paid under a mistake of fact and in the belief that defendant was carrying out his part of the contract. The defendant alleged performance of the contract up to the notice of plaintiffs and counterclaimed that there was due him for work actually performed of which only the $285.84 had been paid, and claimed damages for the refusal of plaintiffs to perform their part of the contract. Held, that the contracts were entire and plaintiffs had no right to cancel or rescind them or refuse to perform except for a breach or failure of performance on defendant’s part. That, if they did rescind them without cause they were liable for the contract price of the work done and prospective profits for the balance of the term of the contracts.
    2. Same — What entitles one to rescind — When money paid can be recovered.
    If,, on the other hand, defendant had up to the time named failed to perform his part, plaintiffs were entitled to cancel the contracts and recover the money already paid the defendant by mistake or ignorance of the facts.
    8. Same — Duty and right of party receiving notice of rescission.
    Defendant had no right after the rescission of the contracts by plaintiffs to go on and complete performance on his part; it was plaintiffs’ privilege to rescind and stop all further performance by defendant subject only to the right of defendant to recover the contract price of work already performed, and prospective profits as to the remainder.
    4. Same — Measure of damages.
    The difference between what the cost of the work would be and the price agreed to be paid is the measure of damages applicable only to executory contracts or prospective profits.
    5. Practice — New trial — When general term can grant.
    When a motion is made for a new trial upon the ground that the verdict is contrary to law the entire case is before the general term for review, even if no exception has been taken to the charge. The general term of a court on appeal has the right to order a new trial when an injustice has been done although no exception has been taken and ho motion made for a new trial upon the ground that the verdict is contrary to law. It will only exercise this power where the injustice is great..
    Appeal from a judgment in favor of defendant entered upon a verdict upon bis counterclaim, and from an order denying plaintiffs’ motion for a new trial upon tbe ground tbat tbe verdict was against tbe weight of evidence and contrary to law.

      Qornelius Doremus, for appl’ts; Walter A. Donaldson, for resp’t.
   Hall, J.

Tbe plaintiffs were copartners carrying on business under the name and style of the Palmer Ointment Manufacturing Company, and as such were the proprietors of an ointment called “ skin success ” which they desired to bring to the notice of the public by means of advertisements. The defendant was an advertising agent having means of placing advertisements in the panels of street railroadears.

Between December 10, 1884, and February 20, 1885, plaintiffs and defendant entered into seven separate contracts together, whereby defendant agreed to place the card or advertisement of plaintiffs in certain numbers of street cars of various lines in New York, Brooklyn and Hoboken, at certain prices named in said contracts, and for varying periods of time ranging from three months to twelve months.

The defendant entered upon the performance of the several contracts and was paid sums of money from time to time on account, amounting in all to $285.84.

As early as April, 1885, plaintiffs complained that defendant was not performing his contract, and various complaints were made up to the 24th day of June, 1885, when plaintiffs wrote to defendant saying that he had failed to fulfill his contract, and for that cause gave him notice that they would mark his contracts void and that they would be discontinued from that date, and rescinded all contracts with defendant.

In July 1885, this action was commenced by plaintiffs against defendant to recover the sum of $285.84, paid to defendant on account of said contracts, plaintiff alleging that the same was. paid under a mistake of fact and in belief that defendant was carrying out his part of the contracts, whereas he had as they alleged, absolutely failed to perform on his part, as they discovered after payment of the money.

The defendant admits the making of the contracts, the letter of rescission and the payment on account, and denies the other material allegations of the complaint, and alleges full performance of the contracts on his part up to the time of plaintiffs’ notice, and alleges as a counterclaim that there was due him, for work actually performed up to the time of plaintiffs’ refusal to perform, $637.26, upon which he had been paid $285.64, and also sets up and claims damages for plaintiffs’ refusal to perform amounting to $865.01, but no proof in regard to this last counterclaim was given upon the trial and it seems to have been withdrawn.

The position of the parties at the time of the writing by plaintiffs of the letter of June 24th was this: that if the defendant had performed his contracts up to that time he was entitled to keep the money which had been paid him, and in addition, to receive the contract price for work done, and also to recover prospective profits for the balance of the term of the contracts, or such of them as had not expired; the contracts were entire and plaintiffs bad no right to cancel or rescind them or refuse to perform except for a breach or failure of performance on defendant’s part.

On the other hand, if defendant had, up to the time named, failed to perform on his part, the plaintiffs were entitled to cancel the contracts and defendant could recover nothing, and if the money already paid by plaintiffs was paid by mistake or in ignorance of the fact of defendant’s failure to perform, they could recover back the amount paid.

Therefore the controversy between the parties was narrowed down to the determination of the single question as to whether or not the defendant had performed his part of the agreement.

. The learned counsel for the appellant is clearly right in his contention, that when a motion is made for a new trial upon the ground that the verdict is contrary to law the entire case is before the general term to review, even if no exception has be'en taken to the charge. Tate v. McCormick, 23 Hun, 218. Wehle v. Haviland, 42 How Pr. 399. Keyes v. Devlin, 3 E. D. Smith, 518, and the courts have even gone further and held, that the general term of a court on appeal has the right to order a new trial when an injustice has been done, although no exception has been taken and no motion made for a new trial upon the ground that the verdict is contrary to law. Schwab v. Elias, 2 Civ. Pro. 340 and cases cited.

But this power of the courts is exercised sparingly and only in cases where it plainly appears that the' trial court has adopted an entirely erroneous view of the law and a great injustice has been done, and it does not by any means- revoke or do away with the usual and salutary rule that where a judge at trial term misstates the law to the jury or omits to state any proposition of law or fact which should properly be stated, it is the duty of counsel to except to the charge, or request the trial judge to submit the proposition and except to a refusal.

The rule first above stated grows out of the power of a court at general term to correct any material error in the judgments of its own court by granting a new trial.

But in the case at bar there was no error committed by the trial judge in his presentation of the case to the jury, there was no question of the mutual rescission of the contract, the defend-, ant had never consented that the contracts be rescinded and no evidence was given from which the jury could have properly inferred such a fact, and even if there was, it could not be held that defendant intended to abandon the rights which had already accrued to him at the time plaintiffs elected to rescind. Defendant had no right, after the rescission of the contract by plaintiffs, to go on and complete performance on his part; it was plaintiffs privilege to rescind the contracts and stop all further performance by defendant subject only to the right of defendant to re-coyer tbe contract price for work already performed, and prospective profits as to tbe remainder.

The defendant after the notice of rescission by plaintiffs, ceased from further performance of the contract, and when this action was commenced counterclaimed for work performednnder the contract and also for prospective profits.

The cases cited on appellant’s brief, in regard to the measure of damages for breach of a contract, all apply to executory contracts, or to prospective profits after a breach or rescission by ■one party, and it is expressly decided in Clark v. The Mayor, 4 N. Y., 338, that the usual measure of damages is the contract price.

It is true that the defendant might have claimed as his damages the value of the work done without regard to the contract price, but he was at least entitled to the price which plaintiffs had agreed to pay him-.

The counsel for appellant says that in a case where there has been a wrongful breach (as we are bound to assume from the verdict of the jury in this case) that the measure of damages is the difference between what the cost of the work would be and the price agreed to be paid, but he certainly cannot mean to apply that rule to the case at bar, because so far as defendant’s recovery is concerned it is only for work actually done and for the cost of which defendant has paid or is liable, and if he could recover only the profits who would. compensate him for his expenditure which might amount to the entire sum claimed.

It is too clear to allow of argument, that this rule applies only to executory contracts or prospective profits.

It will be seen, therefore, that the case resolves itself down to the simple-question of whether plaintiffs’ refusal to continue the contract was right or wrong; if defendant had up to that time performed jiis part the refusal was wrong, if he had failed to perform the refusal was right.

The charge of the learned trial justice clearly and forcibly presented this question to the jury upon the evidence in the case, and they found that the breach of the contract by plaintiffs was unauthorized and that defendant had performed up to the time of such breach, and as a consequence he was entitled to payment for such performance at the price named in the contracts.

The exceptions to the exclusion and admission of evidence are not tenable; the first one was to the exclusion of the question in regard to extra cars. This was properly excluded, the agreements were in writing, and the plaintiffs’ cause of action was based exclusively upon the written contracts, and the only object of the question must have been to show a non-performance by defendant of a verbal contract in regard to advertising in extra cars.'The evidence was inadmissible for any purpose; if it tended, to vary the written contracts, it was incompetent; and if it sought to show a collateral contract, it was irrelevant, as no such issue was raised by the pleadings. The learned counsel for appellant correctly states the rule of law, but he fails to bring the facts within the rule.

The question asked of defendant as to the manner of running the cars on the Brooklyn road, was properly admitted, it called for defendant’s knowledge of a fact, and not his opinion as an expert.

There are no other matters in the record which disclose any error; the verdict of the jury was rendered on conflicting evidence,'and there is abundant evidence to sustain it.

The judgment and order denying the plaintiffs’ motion for a new trial must be affirmed, with costs to respondent.

Hyatt and Ehrlich. JJ., concur.


text:
    William T. A. Hart, Appl’t, v. William McConnell, Resp’t.

      (City Court of New York, General Term,

      Filed December 28, 1886.)
    1. Landlord and tenant — When a lease terminates — ReY. Stat, (5th, ED.) VOL. 3, § 1, PAGE 34.
    The Rev. Stat. (5th, Ed.) vol. 3, §-l, page 34, does not apply to extend a lease to May 1st, where a party whose written lease expired Feb. 1st, held over and occupied the premises by an arrangement made between the tenant and Jhe landlord whereby the latter was to permit the tenant to remain until such time as he (the tenant) moved out, paying rent up to that, time. And the landlord is only entitled to rent up to the time the tenant moved out.
    2. Trial — Practice — Eeeect op failure to ask for the directioh of A VERDICT.
    The failure of the plaintiff 'to ask for the direction of a verdict or to except to the submission of the facts to the jury is an admission that there was sufficient to go to the jury, and having taken the chances of a verdict cannot thereafter raise the objection. *
    Appeal from a judgment entered in favor of the defendant on the verdict of a jury, and from an order denying a motion for a new trial.

      Benjamin Merritt, for appl’t; Kelley Macrae, for resp’t.
   Hyatt, J.

This was an action to recover for two months and twenty days’ rent of premises formerly leased by plaintiff to the defendant on the ground that the defendant had held over and continued in possession of said premises, by and with the consent of plaintiffs, after the expiration of his lease and was liable in consequence.

The defense was, that such holding over and occupation was by an arrangement made between the defendant and the plaintiff whereby the latter was to permit the defendant to remain until such time as he moved out, paying rent up to that time.

The lease between the parties was in writing, and by its terms, expired on February 1st, 1885. The defendant occupied the premises until the 1st of July, .1885, he then moved out and paid rent in full up to that time. The court submitted to the jury the question whether as defendant contended, there was an agreement in December with the landlord, that after the end of the lease he would be permitted to stay as long as he liked, and that he could leave at any time, this was not excepted to, and the jury having found in favor of the defendant, their verdict is conclusive.

The failure of the plaintiff to ask for the direction of a verdict, or to except to the submission of the facts to the jury “ is an admission that there was sufficient to go to the jury, and having taken the chances of a verdict, cannot thereafter raise the objection. Sheely v. Cannon, 17 Weekly Dig., 159.

It is admitted that the Revised Statutes, fifth edition, vol. 8, sec. 1, page 34, provide that agreements for the occupation of lands or tenements in the city of New York, which shall not particularly specify the duration of such occupation, shall be deemed valid until the first day of May next, after the possession under such agreement so commenced, etc., etc.

The case at bar, however, is not within this statute. This lease between the parties hereto expired on the 1st day of February, 1885.

This action is for the recovery of rent falling due on the 1st day of August and September, 1885, and the simple question for the determination of the jury was, whether or not there was an understanding and agreement between the landlord and the tenant, that after the expiration of the original lease, the tenant should continue to occupy the premises until such time as he might fix and determine for vacating the same, at a fixed rent. The jury found that there was such an understanding and agreement; it follow's therefore that the defendant having paid the rent until the first day of July, and then moved out, that his liability for rent being only for the time he occupied the premises, then ceased.

We do not think the plaintiff’s exception to the introduction in evidence of the defendant’s promissory note in payment of June rent, well taken, for the reason that the plaintiff conceded the payment by the defendant of -rent to July 1st, whether by note or otherwise. It is uncontradicted that this note, although dated after the defendant had vacated the premises, and payable three months after date, was for the month of June, the last month of the defendant’s occupation. We do not believe under such circumstances that it prejudiced the minds of the jury adversely to the plaintiff.

The exception might have been available if it were not that the evidence is positive and uncontradicted, that the note was paid and received for rent for the month of June, in pursuance of an agreement made between the parties upon the expiration of a written lease, for use and. occupation of premises for an agreed time, at a fixed rental; this was a new and valid agreement. It is true that no exact date was fixed for the termination of the understanding and agreement, but the parties agreed, upon positive terms as to the duration of the occupancy, and no' question of law, therefore, could arise under the Revised Statutes before referred to.

Upon all the facts the jury found a verdict in favor of the-defendant; we see no reason to disturb their conclusion.

Judgment and order' appealed from affirmed with costs.

Hall and Ehrlich, J,J., concur.


text:
    Stephen Murphy and John Power, Respt’s v. The Gold and Stock Telegraph Company, Appl’t.

      (City Court of New York, General Term,

      Filed December 28, 1886.)
    1. Tendee — What objection can be eaised to a plea oe-tendee.
    The objection that a tender made by check is not made in legal tender is-waived if it was not refused on that ground.
    2. Pleading — Construction op words in.
    Where a pieading is to be construed, a restricted meaning will not be-given to words susceptible of more liberal construction, especially if the-latter is necessary to a defense on the merits.
    This is an appeal from a judgment entered in favor of the-plaintiffs upon an. order made at special term, upon the motion of the defendant to compel the plaintiff to enter judgment, by reason of the fact that the plaintiffs’ demurrer to the affirmative defense herein was sustained, and judgment directed accordingly.

      Dillon and Swayne, for def’t andappl’t., David Keane, of counsel-Frederic P. Foster, for resp’ts.
   Hyatt, J.

The question presented by this appeal is, as to-whether the demurrer to the affirmative defense was properly sustained; the defense is tender, which, it is true, admits the-plaintiff’s cause of action (82 N. Y., 577). The plaintiffs urge-that this tender was made before the demand and refusal sued on, and as such it cannot avail as a defense.

I am of the opinion, from an examination of the pleadings, that there was only one demand ever made upon the defendant, and that it was the one described in the complaint as on or about. June 8th, 1886, and in the answer as on or about June 3d,. 1886. A fair interpretation of the pleading in view of all the circumstances surrounding the contention is, that the 3d of June may fairly be taken as on or about the 8th of June, and vice versa. The complaint and answer allude to the same identical demand. The answer expressly denies that on or about June, the 8th, 1886, or at any other time, the repayment of the money claimed was refused, thus, upon that point, distinctly raising an issue of fact.

The demand is admitted, but refusal to pay denied and tender specifically alleged.

It appears that the defendant has at all times been ready prior to a'nd since the commencement of this action to refund the deposit to the plaintiffs, and if upon demand the defendant made a tender which was good in law, and has always been kept open, and was upon the commencement of this action brought into court, it seems obvious to me, that thejaurpose of this action, is simply one for costs, and is without such merit as wo'uld entitle it to the assistance of this court, in straining the point as to whether or not the demand and refusal sued upon was made on June 8th, 1886, and as to whether or not the alleged tender was made on June Bd, 1886, or on or about that day.

I do not think that it was necessary to allege that the tender was kept good on the day of the alleged subsequent demand, for the reason before stated, that the subsequent demand was denied, and that all the facts and circumstances tend to show that the defendant has made a tender and has always kept it open.

If my conclusion as matter of fact is error, yet I am of the opinion that it is well settled law, that where a pleading is to be construed, a restricted meaning will not be given of words susceptible of more liberal construction, especially if the latter is necessary to a defense on the merits. Clare v. Bank, 14 Abb. N. S., 326; Alcott v. Carroll, 39 N. Y., 436, Code Civ. Pro. Sec. 519.

Upon the question of the validity of the tender,, it appears that it was made by check drawn to the order of Murphy and Power, and that the party making the demand stated that he wished the check made to Stephen J. Murphy or order ; as the firm of Murphy and Power had been dissolved, and a receiver had been appointed, the purpose of Mr. Murphy is very obvious ; he did not wish the money to fall into the hands of the receiver. .

.The objection, that the check was nota legal tender, was waived, as it was not refused on that ground.

The case of Duffy v. O'Donovan (46 N. Y., 223) is controlling upon this point; the case at bar is clearly within its ruling.

The amount of interest included in the tender may or may not be correct, but it is a fair inference that the plaintiffs admitted that it was correct, for they made no objection on that point: the plaintiff, Murphy, objecting solely that the check should be drawn to his order, and. not to.the joint order of his partner and himself, constituting the copartnership making the original deposit tendered by the defendant.

Qui tacet consentiri videtur. If they had objected, the místate, if any, could have been corrected.

The judgment entered upon the order sustaining the demurrer to the answer should be reversed, with costs to the appellant to abide the event, and the demurrer overruled with costs.

Hall and Ehrlich, J J., concur.


author: Ehrlich, J.

text:
    Gillen v. Wheeler, et al., Board of Civil Service Commissioners for the City of New York.

      (City Court of New York, Special Term,

      Filed January 25, 1887.)
    1. Civil service — Practice — Complaint—Demurrer for insufficiency.
    Plaintiff alleged'that he had been examined by the Board of Civil Service Commissioners of New York city for the position of watchman, and passed at a percentage of 96.75 and his name was placed on the list of eligible candidates, that he was an honorably discharged Union soldier. That since said examination he had frequently called upon the secretaries of said board and demanded that his name be sent to any department where there was a vacancy, and was always told there was no vacancy when in truth there were vacancies, and that vacant positions which he was entitled to, had been filled; that “by reason of said malfeasance and nonfeasance of defendants,” he has suffered damages, etc. On demurrer to the complaint for insufficiency, Held, that the demurrer must be sustained. That the terms.“malfeasance,” and “nonfeasance,” as applied to defendants have no legal value in themselves, being unsupported by facts alleged.
    2. Court — Power to redress legal wrong — May create forms FOR-GRANTING REDRESS WHERE NONE EXIST.
    Eor every legal wrong there must be a legal remedy; if no precedent or form for granting redress is in existence, it is the right and duty of the court to create one in order that justice shall not fail.
   Ehrlich, J.

Plaintiff (pleading in person) alleges in his amended complaint that defendants, at all times mentioned therein, were and are the Board of Civil Service Commissioners for the City of New York, whose statutory duty requires them to examine and certify for appointment candidates for office, giving to each such preference as he may be entitled to for proficiency, and as an honorably discharged soldier. That about October 1st, 1885, plaintiff was so examined for the position of “ watchman,” and passed examination at a percentage of 96.75, and his name was thereupon placed on the list of eligible candidates ; that plaintiff was a soldier in the military service of the United States during the Rebellion, and was honorably discharged therefrom, whereby he claimed and was entitled to such preference in such certification and appointment.

Plaintiff further avers that during each of the twelve months last past he has called upon the secretaries, Woodman and Phillips, and Clerk Monheimer, of said board, and demanded that his name be sent to any of the departments where there was a vacancy, and was always told there was no vacancy, when, in truth, there were vacancies. And further, on information and belief, that vacant positions to which by virtue of his rank on examination and his military service plaintiff was entitled, had been filled contrary to the statute ; that “ by reason of said malfeasance and nonfeasance of defendants,” he has suffered damage in the sum of two thousand dollars, for which sum he prays judgment. •

The question comes before the court upon defendant’s demurrer for insufficiency.

The complaint alleges substantially that it was the duty of defendants to certify plaintiff’s rank for appointment, and that defendants did so. It does not charge against defendants that they refused or neglected to appoint him to any vacancy, or that they had power to do so, nor does the complaint set forth any facts showing that defendants omitted to do any act commanded, or performed any act forbidden by statute, or that in any particular they failed in any duty toward plaintiff.

The terms “ malfeasance ” and “ non-feasance,” as applied to defendants, have no legal value in themselves, being unsupported by facts alleged, they must be treated as merely expressing the conclusion or opinion of the pleader'.

It is not here determined that if any officer or party connected with the civil service commission has refused to make, or has prevented the appointment of plaintiff, contrary to the terms or true intent of the statute, the plaintiff is without remedy for any damage sustained thereby.

Any violation of law whereby an injury is suffered is a wrong. For every legal wrong there must be a legal remedy. If no precedent or form for granting redress is in existence, it is the right and duty of the court to create one, in order that justice shall not fail.

It is true that plaintiff has no vested right to an appointment, but he has a legal right to such privilege and preference as the statute confers upon him, of which right no one may lawfully deprive him.

The facts alleged, however, fail to show that defendants are in anywise answerable for any failure of plaintiff to secure the benefit of the statute.

The facts alleged as to the honorable military service of the plaintiff, and his high rank upon a competitive examination, entitle him to the sympathy, respect and good wishes of the court, and of all right-minded citizens, but the established principles of law must govern alike in all cases.

The demurrer must be sustained.


author: Nehjrbas, J.

text:
    Monroe L. Simon v. The Aldine Publishing Company.

      (City Court of New York, Special Term,

      Filed December 27, 1886.)
    CONTEMPT — PERJURY CANNOT BE PUNISHED AS CONTEMPT — CODE ClV, Pbo.,§ 14, Subdivisions 2 and 8.
    Where J. S., one of the sureties on the undertaking given herein by the defendant upon an appeal, upon the justification, made oath to statements touching his property, which were known to him to he false, whereby the undertaking became worthless. On a motion to punish him for contempt, Held, that neither Code Civ. Pro., § 14, subdivision 2 nor subdivision 8, covered the case. That perjury is no longer a great contempt of court. That although a party to an action by a false pleading, which is a proceeding of the court, has effectually deprived his adversary of the legitimate relief sought by him, the former is not guilty of a contempt of court.
    MOTION to punish for contempt.

      JE. J. Myers, for pl’ff, and motion; Thos. Darlington, for def’t, opposed.
   Nehjrbas, J.

This is a motion to punish for contempt James Sutton, one of the sureties on the undertaking given herein by the defendant upon an appeal>to the court of common pleas, on the ground that upon the justification he made oath to statements which were known to him to be false, whereby the undertaking became worthless.

The examination taken under proceedings supplementary to execution herein, before a referee, in which said surety as'.well as his co-surety and other witnesses testified, and the additional affidavits submitted, satisfy me that some of the statements made by said surety (who was also the president of the defendant' corporation), upon his justification as such surety, were not true, aiid were known to him at the time to be untrue; and that he was then insolvent, with no present means of meeting the obligation into which he had entered as surety, and with no intention of paying the same.

For instance, he swore upon the justification on January T, 1886, that his total indebtedness was between $300 and $400, whereas he admitted upon his examination before the referee in September last that he was then indebted to his wife in the sum of at least $5,000 upon a note made to her in 1883, for $20,000, which he had reduced to the former amount in the interim. His-wife, in the affidavit now submitted by her, relinquishes all claim to any indebtedness due her from her husband, but this cannot alter the facts sworn to.

The surety’s intention not to pay appears, from the fact sworn to by him, that although not personally liable upon any paper issued by the defendant corporation prior to January 7, 1886, .either as indorser or maker, still a few days thereafter, on the 12th and 16th of the same month, he personally indorsed all the renewal notes given by tbe defendant to parties to which it was indebted, in various large amounts, he knowing its then financial condition. Shortly thereafter the corporation failed, and its president, the surety aforesaid, succumbed with it. A new corporation was immediately formed, and named the Aldine Press, of which Mr. Sutton now appears to be the general manager, at a salary of $250 a month. From the manner in which the business of the defendant was conducted, mainly through its president, as general manager, the sale of the machinery, fixtures, etc., the repurchase thereof at a loss by the president, their resale to creditors, and the subsequent leasing of the same to the defendant and the new corporation, the Aldine Press, and the management of both corporations, which were principally composed by the president and treasurer (the sureties on the undertaking) and their wives, and the foreman of the printing presses, I am satisfied that the sureties on the undertaking referred to were fictitious.

Thus far I agree with the plaintiff upon this motion. But now comes the question of the power of this court to punish these offenses as for a contempt.

Subdivision 2 of section 14 of the Code provides that a court of record has power to punish “ a party to the action or special proceeding for putting in fictitious bail, or a fictitious surety, or for any deceit or abuse of a mandate or proceeding of the court.” ' It is manifest that this does not cover the present case. The person sought to be punished is not a party to the action. It has been held that a corporation may be fined as for a contempt (The Mayor, etc., v. The N. Y. & S. I. Ferry Co., 64 N.Y., 622). So that the defendant might have been so fined. But as-it is now insolvent and has practically ceased to exist, that remedy would be fruitless.

But it is claimed that under subdivision eight of the same section, a person not a party to the action may be reached under the present proceeding; and in support of this position, the case of Hull v. L’Eplatinier (5 Daly, 534), is relied upon. In that case it was held that a stranger to the suit may be punished as for a contempt for conspiring with another to become surety on an undertaking on appeal, by falsely swearing to the ownership of property, when he is in fact insolvent. Under the eighth subdivision of section 1, title 3, 2 II. S., 534, which is substantially re-enacted into subdivision eight of section 14 of the Code supra* Judge Daly, delivering the opinion at special term, says: “ Perjury has always been held a great contempt of court (citing Stockham v. French, 1 Bing, 365).Any person who adopts any means to prevent the course of justice, will be liable to punishment for contempt (13 Mees. & Welsby, 593). And strangers as well as parties to suits, are liable to punishment for contempt, for using force or fraud to prevent the course of justice (citing Smith v. Bond, 2 D. & L., 460; also 9 Jur., 20, and 14 L. J. Exch., 114. This was affirmed by the general term, Daly, C. J., writing the opinion, who says, “if the defendant had had what he was entitled to, a responsible surety upon the appeal, it would have been a security for the amount of the undertaking. This he lost by the fraudulent acts and misconduct of Lee and the false swearing of the minor, whom he procured to become a surety; and the amount of the judgment upon the undertaking was therefore a proper measure of the defendant’s loss and injury, it appearing, by the issuing and return of an execution, that nothing could be collected from either of the sureties upon the judgment. It does not follow that because the surety might be indicted for perjury in the making of such an affidavit, or that Lee might be indicted for what he did, that the court have not the power, under the provision referred to in the Revised Statutes, to punish Lee for his misconduct by imposing upon him a fine sufficient to indemnify the defendant in the action for the loss and injury which Lee was chiefly instrumental in producing.” This decision was rendered in June, 1875.

Since then, the case of Moffatt v. Herman, was decided by the general term of the court of common pleas. In that action an order was made punishing the defendant as for a contempt, for putting in a verified answer, known by him to be false, whereby the plaintiff was defeated out of the amount of his claim. Judgment was obtained by default, and an execution returned unsatisfied. The day subsequent to the service of the false answer, the defendant transferred all his property to a corporation, receiving in payment certain stock, which he immediately disposed of to other alleged creditors. The defendant was fined the amount of the judgment and costs of the proceedings under subdivisions two and eight of section 14 of the Code, already referred to, as for “ an abuse of a proceeding of the court.” The general term of this court affirmed the. order of the special term in an opinion reported in 8 Civil Proc. Rep., 879. Upon appeal to the general term of the court of common pleas, that court reversed the order appealed from, without writing an opinion (See 17 Abb. N. C., 107). This decision was rendered in March, 1886.

The conclusion necessarily following from this decision is twofold, namely, that “ perjury is no longer a great contempt of court,” and that “ although a party to an action by a false pleading, which is a proceeding of the court, has effectually deprived his adversary of the legitimate relief sought by him, the former is not guilty of a contempt of court.” It might well be said in that case: “ If the plaintiff had had what he was entitled to — a judgment by default for failure to answer — he would have been able to collect his judgment. This he lost by the fraudulent acts, misconduct and false swearing of the defendant in putting in a false answer; and the amount of the judgment recovered and the costs of the proceeding was therefore a proper measure of the defendant’s loss and injury, it appearing, by the issuing and return of an execution, that nothing could be collected upon the judgment.”

It seems to me, therefore, that the principles laid down in Hull v. L'Eplatinier (supra), have been overruled by Moffatt v. Herman (17 Abb. N. C., supra), and that the former case cannot be considered as decisive of the present motion.

When the personal liberty of a citizen is involved it behooves me to hesitate, when the decisions on the subject of contempt, of the court of final resort, so far as this court is concerned, are diametrically opposed. It would be manifestly unjust to incarcerate the surety for several months upon a fine of some fifteen hundred dollars when the question of punishment for his misconduct is involved in so much doubt. The accused person is certainly- entitled to the benefit of that doubt, and the present motion should be decided in his favor.

While this result may work a hardship upon the plaintiff, it would operate still more onerously upon the delinquent surety, were he to be committed erroneously, and thus be deprived of his liberty, for which money, is, at best, an inadequate indemnity. •

The motion to punish will, therefore, be denied, with $10 costs.


author: Nehrbas, J.

text:
    John H. Miller v. Katharine Herlich, Jacob Spettel and John Veith.

      (City Court of New York, Trial Term,

      Filed December 8, 1886.)
    1. Sureties, liability of — Action on undertaking-.
    Where an undertaking is for the benefit of the defendants jointly and not severally to each, one of them alone cannot bring an action on the undertaking until both of them have recovered judgment in the action in which the undertaking was given or until it is finally decided that the plaintiff was not entitled to the order of arrest as to both defendants, at all events the other defendant should have been made a party plaintiff or defendant, so that the rights of all persons concerned might be determined.
    2. Same — When discharged from liability.
    When the relative position of the parties became changed, not by an order of the court, but by mutual consent of the attorneys, the sureties upon the undertaking are released from further liability. Any alteration or departure by the parties from the terms of the contract for the performance of which one becomes surety, discharges the surety whether the alteration was injurious or beneficial to the surety.
    Trial by tbe court without a jury.

      Frank Waters, for pl’ff ,• Christopher Fine, for def’t Herlich; Thornton Farle ¿f Kiendl, for def’t Spettel.
   Nehrbas, J.

This is an action on an undertaking given by the defendant John Yeith, in an action in the supreme court as plaintiff, with the other defendants as sureties, against John JEL Miller and two others, as defendants, to procure an order of arrest against Miller and the two others, under which Miller and one of the others, John E. Domschke were arrested. The undertaking provided that the sureties jointly and severally bound themselves and undertook “ that if the defendants in the action do recover judgment therein, or, if it is finally decided that the plaintiff was not entitled to the order .of arrest, the plaintiff in said action will pay all costs which may be awarded to the defendants, and all damages which they may sustain by reason of the arrest in said action, and not exceeding the sum of five hundred dollars.” It will be observed that the undertaking is for the benefit of the defendants jointly, and not severally, to each of them. The plaintiff in this case recovered a judgment in the supreme court action against the plaintiff therein (the defendant Yeith herein.) But the action, so far as the other defendant who was arrested therein (Domschke) is concerned, is still pending and undetermined. It seems to me, therefore, that the plaintiff cannot bring his action on the undertaking until the defendants, that is both of them, do recover judgment in the supreme court action, or until it is finally decided that the plaintiff was not entitled to the order of arrest as to both of.the defendants therein. That was the contract entered into by the sureties, and upon that alone can a recovery be had. At all events Domschke should have been made a party plaintiff or defendant, so that the rights of all persons concerned might be determined. I do not think that the plaintiff should be permitted to recover the penalty of the undertaking and exhaust the amount thereof, leaving nothing for his co-defendant, should he recover judgment. The defendants have not yet recovered judgment, only one of them has done so, and until the cause is determined as to the co-defendant, I am of opinion that the plaintiff herein has no standing in court.

But if this were not so, and the plaintiff had properly brought his action, the stipulation entered into in. the supreme court action would bar his recovery herein. It appears that the defendants in that action obtained a dismissal of the plaintiff’s complaint by default. A written stipulation was then entered into by the attorney for the defendant Miller (plaintiff herein) whereby the default was opened and the dismissal vacated and .set aside without costs, and the case restored to the calendar. And it was thereby “ further stipulated that the order of arrest issued herein as against the defendant Miller, be countermanded as to him only, and he be released from custody, he stipulating, however, that he will not sue for false imprisonment, malicious prosecution or for damages by reason of the arrest, or otherwise; and the attorney for the said defendant stipulating to produce the said Miller at any time after judgment is entered against him herein (if. it is ever so entered) in pursuance of any execution which may be issued against him herein upon any such judgment. The stipulation, however, as to not suing for false imprisonment, etc., not to affect any right, the said defendant may have if he succeeds in the action.” This stipulation was entered into without the knowledge or consent of the sureties or either of them. The relative positions of the parties became changed, not by an order of the court, but by mutual consent of the attorneys.

This, I think, released the sureties upon the undertaking from further liability. Any alteration or departure by the parties from the terms of the contract for the performance of which one becomes a surety, discharges the surety whether the alteration was injurious or beneficial to the surety. The liability of a surety is always strictissimi juris, and may not be extended by construction beyond his specific engagement (Cornell v. Egan, Com. Pleas, Gen. Term, 24 Weekly Dig., 422, citing, 90 N. Y., 116.) The stipulation not to sue enured to the benefit of the sureties, and the exception reserved in case Miller recovered a judgment, will not revive their liability.

I am, therefore, of opinion that judgment should be rendered for both the defendant sureties with costs, with an extra allowance of two and a half per cent, upon the amount claimed by each defendant.

Judgment accordingly.


author: NeArbas, J.

text:
    Henry C. Dart, and another, Appl’ts. v. Philip Soloman, Resp’t.

      (City Court of New York, General Term,

      Filed January 28, 1887.)
    1. Pbactice — Notice op trial — § 980, Code Civ. Pro.
    By section 980 of tlie Code the party who has served a notice of trial is alone authorized to move the cause for trial. The defendant having neglected to give such notice is not in a position to urge the cause for trial.
    2. Same — Waiver op Notice.
    An exception taken to the 'refusal of the court to postpone the trial was sufficient to bring the question before the court on appeal from the judgment,. the plaintiff does not waive the notice of trial by going on with the trial. -It was not necessary to submit to a dismissal involving the discharge of the defendant from custody.
    8. Same — Preference — Order granting- is not conclusive upon trial judge — § 793, Code Civil Pro.
    An order granting a preference is not conclusive upon the trial judge. Section 793 of the Code requires the service of the order with or before notice of trial and expressly provides that the order may be vacated by the trial judge holding the term at which the preferred cause is noticed for trial.

      Appeal from judgment entered upon a dismissal of the complaint.

      JE. P. Johnson, for appl’ts; Franklin Bien, for resp’t.
   NeArbas, J.

This action was tried as a preferred cause under rule 36 upon the ground that the defendant was actually confined in jail under an order of arrest. It is conceded that no notice of trial was ever served. By section 980 of the Code the party who has served a nótice of trial is alone authorized to move the cause for trial. As the defendant eoncededly neglected to give such notice he was not in a position to urge the cause for trial. But it is claimed that the plaintiffs waived the service of such notice. They certainly did not do so upon the motion for a preference, for the order recites their failure to appear. Did they waive such service by going on with the trial ? We think not. An exception to the refusal of the court to postpone the trial was sufficient to bring the question before the court on appeal from the judgment, and it was not necessary to submit to a dismissal, involving the discharge of the defendant from custody (Gregg v. Howe, 37 Superior, 420; Gallandet v. Steinmetz, 6 Abb., N. C., 224.)

The order granting a preference was not conclusive upon the trial judge. Section 793 of the Code requires the service of the order with or before service of the notice of' trial and expressly provides that the order may be vacated by the trial judge holding the term at which the preferred cause is noticed foy trial. But this cause never was noticed for trial by either party, nor was such notice waived by the plaintiff. Hence, it seems to us either that the order should have been vacated or that the request to postpone the trial should have been granted. However much we may be inclined to dispose of cduses speedily, particularly when a party is confined in jail, still it must be done in the orderly way prescribed by the Code. The other litigant must also be taken into consideration and proceedings which result in expediting him out of court by reason of insufficient opportunity to prepare for trial especially when the cause was improperly on the calendar should not be countenanced.

Without therefore discussing the other exceptions raised upon the trial, we think the judgment should be reversed for the reasons stated.

Judgment reversed and new trial ordered with costs to appellant" to abide event.

Hall and Browse, JJ., concur.


text:
    Matilda Friedman, by guardian, ad litem, Resp’t, v. Louis Fischer, Appl’t.

      (City Court of New York, General Term,

      Filed February 25, 1887.)
    1. Costs — Forma Paupebis — Infants.
    An infant may sue in forma pauperis, thus relieving his guardian from payment of costs.
    2. Same — Right when barred — By order to give security.
    It is too late to ask leave to prosecute, as a poor person, after having been heard and an order has been made requiring her to file security for costs.
    8. Same.
    A poor person cannot avail himself of a provisional remedy and evade the payment of costs by simply pleading poverty. He may sue and prosecute an action in the ordinary way free of expense, without incurring liability for costs, but when he causes the arrest of the defendant in the action or fails to apply for his privilege until after he has opposed a motion for security for costs, and is ordered to give such security, he must pay the costs of the action if defeated.
    Appeal from an order permitting plaintiff to continue and prosecute the action in forma pauperis.

      Adolph Qohen, for appl’t; Cfeorge W. Wilson, for resp’t.
   Nehrbas, J.

This action was begun on the 27th of August, 1886, and issue joined on September 8th. On the latter date an order of arrest against the defendant was issued, the plaintiff having furnished the usual undertaking. A motion was subsequently made and argued to compel the plaintiff to file security for costs, and an order was duly entered therein, October 14th, 1886, requiring a deposit of $250, or'the filing of an undertaking for that amount, the sureties thereon to justify five days after service of notice of the filing thereof. On October 14th, the plaintiff filed an undertaking in accordance with this order.

A motion by the plaintiff to resettle this order was denied by the Chief Justice on Nov. 5th. A new undertaking was filed Nov. 22d, the sureties on the previous undertaking having failed to appear and the default having been opened. The justification of the new sureties was adjourned from time to time, but none of the sureties ever justified. On December 20th, the plaintiff, by order to show cause, moved for leave to continue the action as a poor person; and although all the foregoing facts were stated in opposition to the motion, it was nevertheless granted. A reargument was asked for and allowed, but the previous decision was upheld. From the order entered granting plaintiff’s motion after the reargument, the defendant appeals.

That an infant may sue in forma pauperis, thus relieving his guardian from the payment of costs has been settled by the case of Erickson v. Poey, 5 Civ. Pro., 379. But when an infant, plaintiff has by order been required to give security for costs after having been heard upon the motion in that behalf, it is then too late to ask for leave to prosecute as a poor person. The defendant, it seems to us, has thus gained a vested statutory right, of which he cannot be deprived directly or indirectly. Had the plaintiff moved before the coming on of the defendant’s motion for security, the court would very properly have absolved the plaintiff from further costs or liability therefor. But when the defendant’s right to security has become complete, it must be given him, or a perpetual stay will be granted against him as a consequence of his failure to comply. There is no escape from this position, and no court has ever held otherwise.

There is another reason why the order appealed from must be vacated. The defendant has been arrested and held in $1000 bail for his appearance. The order made, if valid, relieves the guardian from the costs of an action in which he has imprisoned the defendant. This, the law surely never intended. A poor person cannot avail himself of a provisional remedy and avoid liability and evade the payment of costs by simply pleading poverty. He may sue and prosecute an action in the ordinary way free of expense, without incurring liability for costs; but when he causes the arrest of the defendant in the action, or fails to apply for his privilege until after he has opposed a motion for security for costs, and is ordered to give such security, he must pay the costs of the action if defeated. Any other construction of the statute would, it seems to us, put a premium upon litigation by paupers, and grant them immunities never contemplated by the legislature.

The order appealed from will therefore be reversed with $10 costs and disbursements, and the motion denied with $10 costs.

McAdam, C. J., concurs.