text:
    Charles E. Burns, Resp’t, v. The Delaware, Lackawanna & Western R. R. Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    ■Costs—Correlative—Code Civ. Pro., § 3234.
    Where a plaintiff recovers upon one or more separate causes of action, and is non-suited as to others, this does not entitle the defendant to costs under § 3234 of the Code. The meaning of the word “ recover,” used in this section, contemplates a decision upon a question of fact which, if allowed to remain unreversed, is conclusive upon the parties in respect to the issue there presented.
    Appeal from an order made at special term, entered in Living'ston county, August 5, 1891, denying the defendant’s motion for re-taxation of the plaintiff’s costs ; and, also, denying its application to tax a bill of costs in favor of the defendant against the plaintiff.

      Charles J. Bissell, for app’lt; M A. Nash, for resp’t.
   Macomber, J.

This appeal involves the application, in respect to costs, of § 3234 of the Code of Civil Procedure, where, under 'Certain conditions, each party is entitled to costs against his adversary.

Three causes of action are stated in the complaint The first "is, that the defendant, in disregard of its duties as a common carrier, neglected to transport from Leicester, Livingston county, New York, to Cincinnati, in the state of Ohio, ninety-three barrels of pears, which were delivered to it on the 26th day of September, 1887.

The second cause of action is, that the defendant received from the plaintiff, on the 16th day of September, 1887, 169 barrels of pears under a contract to deliver them at Pittsburg, in the state of Pennsylvania, and in neglect of its duties as a common carrier failed to transport this property to its place of destination.

The third cause of action is, that on the 3d day of November, 1887, the defendant received from the plaintiff, at the same place, for transportation to Quincy, Illinois, forty-seven barrels of apples, but through neglect of duty, as aforesaid, failed to deliver them.

Judgment was prayed for the aggregate amount of the damages staled for the three causes of action, namely, $516.10, with interest upon the several items. The answer of the defendant, put in issue all of the allegations of the complaint except the incorporation of the defendant and the fact of its receipt of the fruit mentioned, and alleges affirmatively that its duties ceased when such property had been transported by it to East Buffalo, E". Y. ’ At the trial an effort was made in behalf of the plaintiff to prove each of the causes of action. A motion for a nonsuit in respect to the third cause of action was made by the defendant-at the close of the plaintiff’s case and granted. Upon a like motion at the close of all the evidence in the case, the court granted-a nonsuit in respect to the second cause of action. The issue-relating to the first cause of action was, upon the evidence, submitted to the jury, and a verdict rendered by it sufficient to carry costs to the plaintiff, if such claim had been the only cause of. action stated in the complaint.

The attorneys for the respective parties appeared before the county clerk on May 11, 1891, and each presented a bill of costs for taxation, and each objected to the bill of costs made by the other side. A special objection was made by the defendant to an item of thirty dollars for taking the depositions of three witnesses in Pittsburg, together with an item of $14.50 for'commissioners’ fees in taking such depositions, upon the ground that such expenditures were made in the case of the alleged failure to deliver the property at Pittsburg, under which count the plaintiff had been nonsuited. The clerk taxed the costs in accordance with the contention made by the plaintiff, and, on review of it at special term, such taxation was affirmed, and frpm the order allowing such costs to the plaintiff, and refusing to allow any costs to the defendant, this appeal is taken.

It is quite true that the language of the section is plain and unambiguous, as was stated by the court in Newell Universal Mill Co. v. Muxlow, 115 N. Y., 173; 24 St. Bep., 545, yet not a little difficulty has been encountered by the courts in applying its plain provisions to the great variety of cases which have arisen since its enactment. Certain things are stated as conditions precedent to the allowance of correlative bills of costs, and they are, first, that the causes of action, if two or more of them are contained in. the complaint, shall be set forth separately, and that an issue of fact should be joined in each of them. These conditions existed in the present case; for there are three causes of action set forth in the complaint, separately stated, upon each of which an issue of fact was joined by the answer. The plaintiff recovered upon one issue only, and the defendant obtained a nonsuit in respect to the other two causes of action.

But there is another condition for the allowance to the defendant of costs under this section, and that is, that he shall “ recover” upon one or more of the causes of action set forth in the-complaint. Upon this subject, it would not be conducive to a. clear understanding of the case to cite any authority where all of the conditions above mentioned did not substantially exist.

In the case of Fisher v. Dougherty, 42 Hun, 167; 4 St. Rep., 679, the point seems to have been distinctly held that where a nonsuit was granted in respect to certain counts contained in the -complaint, and where no finding of fact was made' either by the jury or by the court thereon, and there was a recovery had by the plaintiff upon other counts, there could not be taxed, in behalf of the defendant, costs in respect to the counts upon which a nonsuit had been granted. See, also, Cooper v. Jolly, 30 Hun, 224. Under these two authorities, the case, of Blashfield v. Blashfield, 41 Hun, 249; 4 St. Rep., 144, where the question is •differently presented, cannot prevail. The meaning of the word ■“ recover,” used in this section, clearly contemplates a decision -upon a question of fact, which, if allowed to remain unreversed, is conclusive upon the parties in respect to the issue there presented. In this case, there has been no finding upon a question •of fact which would preclude the plaintiff, upon certain terms, to bring as a matter of right another action to recover damages upon the second and third causes of action stated in his complaint. Had there been a verdict in respect thereto, whether directed by the court or rendered by the jury, there would, in our judgment, be presented an entirely different question. Then a condition of things would have been brought about whereby, unless such decision was reversed, it would be impossible for the plaintiff again to present for trial the issues there made.

The learned counsel for the appellant has made an ingenious .argument to the effect that this could not make any difference with the rule, because, in all probability, if he had made a motion for a direction of a verdict instead of a motion for a non-■suit, it would have been granted. We do not so understand the case. There is nothing contained in the record before us which would show that it would have been proper or likely that the -court would have granted a direction of a verdict. The decision made at the instance of the defendant’s counsel in respect to the ■second and third causes of action was simply that there was, at present, insufficient evidence to submit that question of fact to the jury. We have no right to assume that the learned justice at the circuit would have directed a verdict, any more than we would have a right to assume that the jury itself would have rendered a verdict for the defendant upon these two issues. It is only upon a decision in favor of the defendant upon an issue of fact that he is entitled to recover costs under this section. This is conditio sine qua non.

We think, therefore, that the order appealed from was in accordance with the authorities, and should be affirmed.

Judgment and order appealed from affirmed, with ten dollars costs and disbursements.

Dwight, P. J., and Lewis, J., concur.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    Josiah J. White, Resp’t, v. George C. Wood et al., Appl’ts.

      (Court of Appeals,

      Filed January 20, 1892.)

    1. Trustees—Railroad—Reorganization—Injunction.
    Defendants were a reorganization and purchasing committee, authorized by the agreement of the bondholders of a railroad to organize a new company and divide the stock among them in proportion to the bonds of the old corporation deposited by said bondholders with the Union Trust Company, of which bonds there were 994 outstanding. They did organize a new company under the Laws of Kentucky. Under the articles first filed the capital was to be two million dollars, and that amount was. to be issued as paid up stock to said bondholders, but these they abandoned and filed articles subsequently which provided for the same capital and that only $994,000, of stock was to be delivered to. the bondholders, leaving the balance to be disposed of by the directors of the new company. Defendants had received a note from the new corporation for repaying advances made by the defendants for actual expenses of the-committee in the performance of the trust. The court enjoined the payment of the note to them, and forbade their transferring the property from the old to the new corporation. Held, error.
    2. Same.
    There was no breach of duty on the part of the defendants as trustees, as the first application was withdrawn and in both cases the actual property to be represented by the stock to be issued to the bondholders was-precisely the same.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment enjoining defendants from transferring the property of the Ghatteroi Railway Go. to the Ohio- & Big Sandy Railroad Go., and from collecting a promissory note for $56,800.

      Wheeler H. Peckham, for app’lts; Wm. J. Oaynor, for resp’t.

       Reversing 38 St. Rep., 338.

   O’Brien, J.

The judgment in this case is based upon acts of the defendants, claimed to be in violation of their duty as trustees and done in bad faith. The Ghatteroi Railway Company, a Kentucky corporation owning a railroad in that state, had issued one thousand bonds of $1,000 each, secured by two several mortgages-to the Union Trust Company of New York. There were 994 of these bonds outstanding when the company made default in the conditions of the mortgage, and it was foreclosed by suit in the-United States circuit court in Kentucky and the road and its equipment sold and purchased by the defendants for the benefit of the bondholders. The defendants, in making the purchase, acted, under the terms of a written agreement between themselves and the holders of the bonds, bearing date February 15, 1887. This agreement provided, among other things, that the bondholders-should deposit them with the Trust Company, subject to the order of the defendants, for use in the purchase of the property, and should receive therefor the receipts of the Trust Company. The-bonds were so deposited, the receipts given and used in the purchase of the property at the foreclosure sale. The agreement between the defendants and the bondholders, which prescribes at length and in specific terms the powers and duties of the defendants as the purchasing committee and trustees for the bondholders, also provided that in case the defendants purchased the mortgaged property they might sell the same within a fixed time, at a price-named, which was to be deposited with the Trust Company for the benefit of the bondholders, and that'the defendants should operate the road until the sale could be made, or a new corporation organized to take and operate the road. The defendants were authorized to organize a new corporation in case they failed to sell the road, and in that event it was provided that “ the stock of such company shall be issued to and divided among the holders of the-receipts issued by the Trust Company hereunder, in proportion to the number of bonds deposited, for which the receipts were issued, upon the surrender to the same Trust Company of such receipts.”

The defendants did organize a new company under the Laws of Kentucky, but did not deliver the whole authorized capital stock to the bondholders and, in this respect, it is claimed they failed to perform their duty as trustees under the agreement. There are some other clauses of the agreement, following the one-above quoted, which must be read with it in order to get a clearer idea of the question. It was provided that the defendants “ shall have full power and authority to make due provisions, in their discretion, in case of any defect of their express’ powers hereunder, and shall, nevertheless, proceed to carry out the true intent, meaning and purpose of this agreement, by conforming as-near as may be to the provisions thereof,” and further, “They shall determine all questions that may arise concerning the construction and effect of any provision of this agreement, which determination shall be final and conclusive in every case.”

The defendants, having failed to sell the railroad within the time designated, filed articles of incorporation in the proper county clerk’s office in Kentucky, but did not make publication of the same, as required by the laws of that state in order to create a corporation, and, in fact, within a month after such filing, notified the clerk that the articles were abandoned and new articles were-filed August 23,1889.

Under the articles first filed the capital stock was to be $2,000,-000, subject to be increased by a majority of the stockholders to any sum necessary to complete and equip the road, not exceeding $10,000,000. An amount not exceeding $2,000,000 of the stock was to be issued as paid up capital stock, in exchange for the Trust Company receipts issued upon deposit of bonds by the holders. By the articles of incorporation last filed, and under which the new corporation was created, the capital stock was. also fixed at $2,000,000, and the only material difference in the provisions of the two articles, in so far as concerns this case, was in the clauses providing for the issue of the capital stock.

The articles first filed provided for the immediate issue and distribution among the holders of the Trust Company receipts representing the surrendered bonds of not exceeding $2,000,000" of stock, in consideration of the c mveyance to the company, to be organized thereunder, of the mortgaged property by the defendants, while in the articles filed subsequently but $994,000 of stock was to be issued -and delivered to the holders of the receipts, in consideration of the conveyance by defendants of the property purchased at the foreclosure, and the residue of the stock might “ be disposed of from, time to time by the board of directors at its discretion, and is to be paid in from time to time upon calls by the board of directors.” The organization of the new company having been thus completed under this charter, the defendants conveyed to it the property purchased by them at the foreclosure sale by a deed dated August 20, 1889, acknowledged by the grantor on the same day, and by the grantee August 24,1889, and on this latter date delivered to the grantee. It was recorded in two counties of Kentucky, in one of them August 30, 1889, and in the other September 2, 1889, and this action was commenced August 26,1889. The plaintiff was the owner of twenty-seven of the bonds secured by the mortgage under foreclosure of which the defendants, as trustees for him and the other bondholders, acquired the road, and those bonds he surrendered as provided for by the trust agreement, and took in their place the trust company receipts, and was, therefore, entitled to his equitable proportion of the capital stock of the new company. He brought this action to restrain the transfer of the road to the new company by the defendants. On the trial the only evidence given by the plaintiff was the trust company receipts, which showed his interest in the sjibject matter of the controversy. The judgment, among other things, restrains the defendants from collecting a note given to them by the new company for $56,800. With reference to this note the allegation of the complaint is that it was given to the defendants by one Oollis P. Huntington upon an agreement with him, whereby the defendants, in violation of their trust duty, and for the purpose of benefiting themselves personally, agreed to procure for him, in consideration of said note, a majority in value of the bonds at fifty per cent par value, and thereupon turn the new corporation over to him.

The finding of the trial court is that the note was given to defendants by the new corporation “as part and parcel of the attempt of the defendants to so transfer the said franchise and property to the said new incorporation in violation of their said trust.” There seems to be no conflict in the evidence in regard to the consideration of the note, and that is to the effect that it was given to the defendants by the new corporation for the purpose of re-paying advances made by the defendants for actual expenses of the committee in the performance of the trust and one or two items of estimated expenses and, after paying those, the surplus, if any, represented by the note, was to be paid back to the corporation that made it. Nor is there any dispute as to the fact that the deed by defendants of the property to the new corporation was actually delivered to it before this suit was commenced. This is conceded in the opinion at general term. The judgment, therefore, enjoined the defendants from doing what had already been done and, aside from that-feature which impounds the note, in which the plaintiff has no interest whatever, the only effect that the judgment can have is, possibly, to enjoin the issue of the stock over and above the nine h undred and ninety-four thousand dollars, and as neither the new railroad corporation nor any of its . directors are parties to this action, it is difficult to see how it accomplishes even that. There does not seem to be any basis upon which that part of the judgment enjoining the transfer and the payment of the note can rest. But the more important question in the case is whether it has been shown that the defendants actually committed any breach of duty as trustees or in any material respect violated the trust agreement to the plaintiff’s damage. It is not found or claimed that the mere filing of the first articles of incorporation, in July, 1889, had the effect of bringing any new •corporation into existence.

It seems that, under the laws of the state where they were filed, no such result followed. Something more remained to be done before a corporate entity was created which was not done, and the .attempt to create a corporation by this filing was abandoned and new papers filed in their place which, it seems, resulted in the ■creation of the new corporation which the defendants are enjoined from conveying to.

The plaintiff, evidently, would not deem himself aggrieved at .all had the defendants proceeded under the articles first filed. 'Then he would have his share of two millions of stock; now he has only his share of $994,000 of stock. But although the stock in the first case would, on paper, express a larger interest in shares in the new road than that issued under the last articles, yet in both cases the actual property to be represented by the stock to be issued to the bondholders was precisely the same. When the bondholders of the old road became stockholders in the new one, they were to have their pro rata interest in the road which the defendants purchased for them and no more. Ho matter at what sum the new road was capitalized, whether at two millions or nine hundred and ninety-four thousand dollars, what the plaintiff was entitled to was the same proportion of the stock issued to represent the property purchased by the defendants as his twenty-seven bonds bore to the whole amount of the bonds secured by the mortgage foreclosed. Had the capital stock of the new corporation been fixed at the value of the property purchased by the defendants, then all the shares would go to the bondholders. In" executing that part of the trust which provided for the organization of a new corporation, to operate the road, the defendants were required to proceed according to the laws of the state- in which the property was and under which the corporation was to ■be created.

The express powers conferred on defendants by the. trust ■agreement were general, and all the details necessary to be considered, when a new corporation was to be brought into existence, were not specified, but notwithstanding this, the defendants were to go on and “carry out the true intent, meaning and purpose of this agreement by conforming as near as may be to the provisions thereof.” The precise question then is whether .the defendants, as trustees, disregarded the agreement and violated their duty, when organizing the new corporation, in providing for the issue to the bondholders of only $994,000 of stock instead of $2,000,000. The agreement required the defendants to. issue to the bondholders the stock of the new company. But. what did the parties mean by these terms ? Clearly the stock of the new company, within the contemplation of the parties, was. nothing else than the old road or, in other words, the property purchased at the foreclosure sale by the defendants. There was no other property in which the bondholders were jointly interested or which could be divided and distributed to them. Now the defendants in proceeding to discharge the duty of organizing a new corporation were bound, under the laws of Kentucky, to provide in the articles for the amount of capital stock authorized, and the times when and the conditions upon which, it was to be paid. The laws of that state authorizing the purchasers of railroads, at foreclosure sale, to become incorporated,, authorized the corporators to provide in the articles for the issue of paid up capital stock not to■ exceed “the original cost of the construction of the railroad and equipment purchased, and. such sum as may be necessary to complete the same.”

Now the paid up capital stock which the bondholders were entitled to receive could not exceed the original cost of the road purchased with its equipments. The defendants bid in the property at $750,000. In the articles they fixed its cost or value at. the amount of the original bonds, namely, $994,000, and provided for the issue to the bondholders of paid up stock to that amount,, in proportion to their original interest as represented by the receipts of the Trust Company. Had they intentionally fixed the amount of, paid up capital stock to be issued to the bondholdérs at less than the value of the property purchased, then the plaintiff would have a right to complain, but it is not suggested that the. defendants did that. But the new articles provided not only for the operation of the road, but also, in conformity with the laws of Kentucky, for the completion of it. This could not be done' without more capital, and so the articles provided that other stock, up to $2,000,000, might be issued by the board of directors and. sold for money or other proper consideration. The bondholders were not entitled to this stock unless they paid for it. The defendants fixed the capital of the new road at just what the capital of the old one was, and they fixed that part of it which was to be considered paid up, by the purchased property, at the amount, of the bonds used in its,purchase, and they say that they have the plaintiff’s proportion of that paid up stock to give to him whenever he will take it. That all the other holders of bonds for whoso benefit the defendants purchased the property have taken the stock and ratified the defendants’ acts. When we consider the broad powers contained in the trust agreement conferred upon the defendants, to some of which we have referred, and the laws of the state under which the defendants were to act, we think they are not liable, providing that they acted in good faith. If the provision in the articles incorporating the new railroad for the issue to the bondholders of paid up stock to the extent of $994,-■000 was the result of an honest construction of their powers under the laws of the state where the corporation was to he created, it would be unjust to hold them liable upon some narrow or technical construction of the agreement or the meaning of the law that they were obliged to act under. Shaw v. Railroad Co., 100 U. S., 605; Hollister v. Stewart, 111 N. Y., 644; 20 St. Rep., 941.

The complaint alleges and the trial court found that they did not act in good faith, but on the contrary acted in bad faith, and to this finding the defendants excepted. "We have carefully examined the record, and are unable to find any evidence in it to uphold the finding, and we are referred to none by the plaintiff's counsel. He stated on the trial that he relied on the case made by the pleadings, but they nowhere contain any admission ■of bad faith on the part of the defendants. On the contrary, they gave evidence at the trial that they acted in good faith.

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

All concur, except Peckham, J., not voting.


author: Bookstaver, J.

text:
    Sarah A. Barnum et al., App’lts, v. John Fitzpatrick, Resp’t.

      (New York Common Pleas,

      General Term,

      Filed January 4, 1892.)

    1. Landlord and tenant—Eviction.
    Defendant having failed to comply with certain orders of the health department and building bureau in relation to repairs to the building he occupied, his landlords entered and made such repairs, tearing up a portion of the building. Defendant, however, did not surrender the lease and he and his subtenants remained in possession of other parts of the building. Jleld, that under these circumstances the acts of the landlords did not excuse him from paying rent for the premises.
    53. Evidence—Orders of health department.
    Copies of orders of the health department or of the building bureau are not of themselves, as a rule, evidence as against third parties.
    3. Same—Attorney’s letter.
    The contents of an attorney’s letter are not, except for certain limited purposes, as proving a demand and the like, admissible in evidence in his favor or that of his client unless they form a part of a series, a portion of which has been introduced in evidence, and without which those in evidence cannot be fully understood.
    Appeal taken by the landlords from a final order of the district court in the city of Hew York for the fifth judicial district, dismissing summary proceedings instituted by them for the possession of the premises 320 Stanton street, in the city of Hew York, for the non-payment of rent.

      Hatch & Warren, for app’lts; Frank Moss, for resp’t.
   Bookstaver, J.

On the 1st day of December, 1889, respondent Fitzpatrick leased from the appellants the premises known as 320 Stanton street, on the corner of Groerck, for a term of three years and four months from that date, at the rate of seventy dollars per month, payable in advance. Ho rent was paid on July 1, 1891, and on the 9th of that month this proceeding was instituted. The tenant interposed an answer denying that there was any rent due at that time, also denying that he was in possession of the premises after default in payment, and alleging that on or about the 22d May, 1891, the landlords entered the leased premises and required him to move therefrom, tore up a portion of the premises and demolished other portions. Subsequently this answer was amended by setting forth that the acts of the landlords, were wrongful and without the permission of the tenant, and were-done with the purpose of wrongfully withholding the possession of the premises from -the tenant and depriving him of the beneficial use and enjoyment of the same.

Upon the trial the tenant admitted that the sum of seventy dollars was due on the 1st July, 1891, under the terms of the-.•ease, that a demand for ¡the rent had been made and not complied, with, and that he had not surrendered possession of the property; and it was shown that he and his undertenants were in actual possession of a part of the same when the proceedings were commenced and at the time of the trial. It further appears from the evidence that comrnencing with about the 1st February, 1891, and continuing for some time thereafter, several orders from the health, department and from the building bureau were served upon the tenant, requiring repairs and changes to be made on the premises, but the nature and extent of such requirements does not appear,, as the notices were not admitted in evidence. On April 28cl, according to a letter put in evidence by the tenant, he was notified on behalf of the landlords that if he would surrender the lease they would not hold him liable to comply with the orders-' of the two departments, but that if by the" 25th of that month he had not complied with the order of the bureau of buildings sent to him, and such other orders as had been served upon him, they would proceed to perform the work and hold him liable for the expense. On the day last named, the tenant had done nothing towards complying with the orders, and then, and upon the trial,, claimed that he was not bound to comply with the orders of the building department, as he had not stipulated to do so in the lease.. The landlords then requested permission to go upon the premises-to make necessary repairs, which was at first refused, but we infer from the testimony that this refusal was subsequently withdrawn,, as the landlords’ agents did go upon the premises apparently with the permission of the tenant. On the 4th of May, the tenant's-attorney wrote a letter in which he stated that the tenant would, insist that the work which was to be done should be done in such a manner as to avoid injuring his property, and as quickly as possible, and that he should claim he would not be obliged to pay any rent during the time he was unable to fully use the premise?.. Thereafter the landlords, by their agents, tore úp a portion of the-rear floor, took out some of the beams, replacing them with new ones, and tore down a rear building forming a part of the demised, premises which had before been used as a stable, and left the materials in the yard and in front of the premises, in consequence of which the tenant testified he could not continue his business as a saloon keeper. It was also claimed on behalf of the tenant that the water pipes were cut off from the upper floors, preventing the sub-tenants from using the water; but on behalf of the landlords-it was insisted that the deficiency in the supply of water was caused by a leakage in the pipes.

There can be no doubt that under the law as frequently declared in this state, these acts on the part of the landlords, whether done under the orders of higher authority or not, so seriously affected the beneficial use of the premises as would have justified the tenant in removing from them as on an eviction, and had he done so he would have been fully justified. Indeed the landlol'ds foresaw that the repairs were of such a nature as would seriousjy interfere with the use of the premises, and offered to relieve the tenant from all liability if he would surrender the lease. This he persistently declined to do, and the question is whether, under such circumstances, he can insist upon remaining in possession of a portion of the premises while temporarily deprived of the beneficial use of other portions, without paying the whole rent, or at least some rent for that part used by him.

By the terms of the lease the tenant covenanted to take good care of the house and its fixtures, suffer no waste, and also, at his own expense, make all repairs required to the plumbing work, pipes, furnace, range and fixtures belonging thereto ; and that, he should not call upon the landlords for any disbursements or outlay during the term; and to surrender the demised premises in good order and condition, damage by the elements excepted, at the expiration of the termj and he further covenanted to promptly execute and fulfil all the ordinances of the city corporation applicable to the premises, and all orders and requirements imposed by the board of health and the police department for the correction, prevention and abatement of nuisances and other grievances.

While the exact nature of the orders of the board of health and of the building bureau does not appear from the return, yet it is clear, that whatever they were, the tenant refused compliance with, them. And there is no evidence in the case from which either the court below or this court can determine whether he was justified in so doing, or whether or not the orders were reasonable. In the absence of such evidence we must assume that public officers would only do their duty and require that to be done which the circumstances of the case demanded The tenant in taking the premises took them as they stood, and was bound to surrender them in as good condition as he received them, damages by the elements excepted; and he was not to call upon the landlords for any outlay or disbursements during the term. Whatever these orders were, the tenant was under covenant to perform them so far as the health department at least was concerned, which he refused to do.

It is the duty of a tenant to make all repairs to a building to keep it in a tenantable condition, and a landlord is not required to make them unless there is an express covenant on his part so> to do, and if for any reason, therefore, the building becomes out of repair to such a degree that it cannot be permitted to remain in that condition, it is a breach of the covenant by the tenant. Suydam v. Jackson, 54 N. Y., 450. It is not clear from the return what was the cause of the premises in question falling into such a state as to call for the interference of the officers charged with the safety of buildings; it certainly does not appear that it was through any fault or negligence on the part of the landlords ; it may have been through the fault of the tenant (although that does not appear), or the result of gradual decay, and that to such an extent that possibly the tenant was not bound to do what was required to make the building safe.

The tenant having refused to comply with the orders served upon him, it became necessary for the landlords to do it themselves, or if they neglected this the building bureau had the. right under the law to enter upon the premises and do- what was required, and charge it against the property, which would doubtless have been at an increased expense to whoever was bound to pay for it. Under such circumstances we think the landlords had a right to enter upon the premises to do what repairs were necessary, and that such entering and making repairs did not amount to an eviction. Even the tearing down of a building pursuant to a lawful order or mandate of a public officer does not amount to this. Connor v. Bernheimer, 6 Daly, 295. In that case it was said, “ Where there is no covenant on the part of the landlord to repair or build, and none is implied in a covenant of quiet enjoyment, Brown v. Quilter, Amb., 621, the tenant takes the premises as they are, and if, in consequence of natural decay, * '* * it becomes indispensable, as a public duty for the public safety, to take down the building, to prevent it falling down, there is no violation of the covenant for quiet enjoyment, * * * the taking down of a building, as an act of necessity, to prevent its falling down, either by the public authorities, or in obedience to their orders, is not an eviction or disturbance of the possession by title paramount, there being no question of title involved in such an act.” If the total destruction of a building under such circumstances does not amount to an eviction, then the entering upon premises and making repairs intended to render them safe cannot.

It is doubted whether the landlords’ entry in this case amounted to an unjustifiable trespass; but even if it did, a mere trespass would not relieve the tenant from the payment of rent. This was expressly held in Edgerton v. Page, 20 N. Y., 281. The court, by Grover, J., said, “ I cannot see upon what principle the landlord should be absolutely barred from a" recovery of rent, when his wrongful acts stop short of depriving the tenant of any portion of the premises. The injury inflicted may be to an extent much larger than the whole rent, or it may be of a trifling character. In all the cases where it has been held that the rent was extinguished or suspended, the tenant has been deprived, in whole or in part, of the possession by the wrongful act of the landlord, either actually or constructivelj-.

“ There is no authority extending the rule beyond this class of cases. It would be grossly unjust to permit a tenant to continue in the possession of the premises, and shield himself from the payment of rent by reason of the wrongful acts of the landlord impairing the value of the use of the premises to a much smaller amount than the rent. This must be the result of the rule claimed by the defendant. The moment that it is conceded that the injury must be equal to the amount of the rent, the rule is destroyed. It would then only be recoupment to the extent of the injury.”

In the Home Life Ins. Co. v. Sherman, 46 N. Y., 370, the court, after referring to those cases where there was an injury to the beneficial use of premises sufficient to constitute a constructive eviction, say, “ But the tenant must quit possession in consequence of such, interference. * * * This distinction will reconcile the authorities, which otherwise may seem conflicting. The rule to be gathered from all the authorities, and which accords with good sense, is that a person cannot remain in possession of premises and still claim he has been turned out; nor, when a judgment of a competent court has determined that he shall deliver possession to a particular person, need he wait to be forcibly ejected.” See also Boreel v. Lawton, 90 N. Y., 293; Kelly v. Miles, 48 Hun, 6; 15 St. Rep., 319; Academy, etc., v. Hackett, 2 Hilt., 217. And this rule was followed by this court in Koehler v. Scheider, 15 Daly, 198; 23 St. Rep., 68.

In the case under consideration the tenant admitted on the trial that he was still in possession of the premises, or rather that he had not surrendered possession, which amounts to the same thing; also that he had under protest paid the rent for the month of June after the landlords had done much of the work, and we do not think the protest can avail him in such a proceeding as this. It was also shown that his sub-tenants were still in possession of the upper floors, and it was not shown that the landlords were in the actual final occupation of any part of the premises, or that the tenant was excluded finally from any part of them, and this we think was essential to the tenant’s defense even under the authorities relied on by him.

The case of Christopher v. Austin, 11 N. Y., 216, was decided on the strength of Dyett v. Pendleton, 8 Cow., 731. In the former case the exact circumstances are not stated, except that the landlord entered and actually evicted the tenant from a part of the premises, and Icept him out during the whole term, and that the tenant occupied the remaining portion. The opinion quotes from Dyett v. Pendleton, supra, “ that there is a great principle that a tenant shall not be required to pay rent even for the part of the premises which he retains, if he have been evicted from the other part by the landlord,” and this is clearly obiter, for in that case, which is the leading one on constructive eviction, the tenant left the rooms leased to him on account of the disorderly conduct of the landlord and his tenant in adjoining apartments, rendering it unsafe for the morals of his family to remain longer. The true reasoning in that case is that an eviction by the landlord destroys the consideration for which rent is to be paid, and where there is a total failure of consideration, the contract is not binding, and that this eviction may be brought about by moral as well as physical causes. While Christopher v. Austin has not been expressly overruled by the authorities we have before cited, it certainly can only be regarded as authority for holding that no rent need be paid when the landlord has excluded the tenant from a part of the premises, and used such part for his own purposes.

And this is in harmony with Lawrence v. French, 25 Wend., 443, where Judge Nelson says: “A mere trespass by the lessor will not suspend the rent, as where he entered and destroyed a building (Cowp., 242); but where he railed off part of the premises, the act had that effect (3 Camp., 513).” Carter v. Byron, 49 Hun, 299; 17 St. Rep., 700; People v. Gedney, 10 Hun, 151; Buffalo Stone & Cement Co. v. Radsky, 14 St. Rep., 82, all involved an actual final occupation by the landlord of a part of the demised premises to the exclusion of the tenant. Indeed, the latter case is distinguished by the court from Edgerton v. Page and Boreel v. Lawton, supra, on the very ground of actual and final exclusion. This we have before shown was not established in this case.

In summary proceedings by a landlord against a tenant to recover possession of the demised premises after default in the payment of rent, a counterclaim cannot be pleaded. The only answer he can make is a general denial, or a denial of specific allegations of the petition. Under denial of the averment that rent is due and that the tenant has made default in the payment thereof, he may prove payment or that for any reason no rent is due. Durant Land Improvement Co. v. The East River Electric Light Co., 15 Daly, 337; 25 St. Rep., 928; Code, § 2244. It is not even a sufficient answer to the proceeding that the full amount of the stipulated rent is not payable. If any rent is due, the landlord is entitled to a final order in his favor. Jarvis vs. Driggs, 69 N. Y., 147.

It therefore follows that the judgment dismissing the proceeding in this case must be reversed.

Having arrived at this conclusion, it is unnecessary to examine particularly the various exceptions to the admission or exclusion of evidence. It may be said, however, that copies of orders of the health department or the building bureau are not of themselves, as a rule, evidence as against third parties, and that the contents of a letter written by an attorney are not, except for certain limited purposes, as proving a demand and the like, admissible in evidence in his favor unless they form a part of a series a portion of which has been introduced in evidence, and without which those in evidence cannot be fully understood.

Judgment reversed.

Bischoff, J., concurs.


author: Per Curiam.

text:
    Peter E. Tarpey, Resp’t, v. Simon E. Bernheimer and August Schmid, App’lts.

      (New York Common Pleas,

      General Term,

      Filed January 4, 1892.)

    Contract—Agency.
    Proof that a person was agent of defendants for the purpose of selling their goods, collecting bills and representing them before the board of excise, is not sufficient to warrant a finding that he was their agent for the purpose of contracting bills for advertising their business, especially in the face of a denial of such agency by one of the firm.

      Appeal from a judgment rendered in the district court of the city of New York for the tenth judicial district,

      Francis V. 8. Oliver, for resp’t; Rose & Putzel, for app’lts.
   Per Curiam.

This action was brought to recover for inserting an advertisement of the defendants’ business in plaintiff's paper. There was no evidence that the plaintiff had any dealings directly with defendants. He claims to have received the order from one John Franz, whom he claimed was acting as -agent for the dc: fendants. The testimony shows conclusively that Franz was agent for the defendants only for the purpose of selling beer, collecting bills and representing the defendants before the board of excise, and in our judgment this was not sufficient to warrant the court below in finding that Franz was the agent of the defendants for the purpose of contracting bills for advertising their business, especially in view of the fact that Mr. Bernheimer, the survivor of the firm, testified that Franz had no such authority and had never been authorized by him to contract bills for him or his firm. The plaintiff also attempted to show that the papers containing the advertisement were sent to the brewery owned by the defendants, but Mr. Bernheimer denies that he ever received such papers or had his attention called to them, or ever received a bill for the advertising until after the action was commenced.

Under this state of facts, we think the judgment should be reversed, with costs.

Bookstaver and Bischoff, JJ., concur.


text:
    Lemon K. Strouse et al., Resp’ts, v. Horace W. Love, App’lt.

      (New York Common Pleas,

      General Term,

      Filed January 4, 1892.)

    Principal and agent—Liability for failure to return goods.
    Even though goods are delivered to another as agent for sale, the principal has a right at any time to recall the agency and demand a return of the property, and if the agent fails to do so he is liable to his principal for their value.
    Appeal from a judgment of the district court in the city of New York for the first judicial district.

      H. W. Heifer, for resp’ts; Daniel M. Pavey, for app’lt.
   Bookstaver, J.

This action was brought to recover the sum of thirty-five dollars, with interest from April 24, 1888, for goods which the plaintiffs claimed they had sold and delivered to the defendant. The answer contains a general denial and sets up a counterclaim for $8.40 for expressage, insurance and storage. The principal question was whether certain law books which had been delivered to the defendant were sold on approbation, or were consigned to the defendant, as agent, to sell.

From the evidence it appears that on the 24th of April, 1886, the defendant called on the plaintiffs and represented himself as a book-seller, and obtained a number of books at wholesale prices. These were sent with a bill marked “ On sale,” and also marked Special Prices. To be sold to the Profession only.” This would seem to indicate that the books were originally intended to be sold again, and that the defendant did not purchase them outright at that time; but it appears from the evidence that the plaintiffs more than six months after the delivery of the books, and in the year 1887, sent the defendant a bill for the .books, but did not get any reply, and that thereafter the plaintiffs wrote to him to either send back the books or pay their price. Even if delivered to defendant as agent, the plaintiffs had at any time the right to recall their agency and to demand the return of their property. If the agent failed to do this he was liable to his principal for their value, and not having returned the books or paid the price, we think the justice was right in awarding judgment as he did, and that it should be affirmed, with costs.

Bischoff, J., concurs.


text:
    William Klingenberg, Resp’t, v. Frederick Werner, Trustee, App’lt.

      (New York Common Pleas,

      General Term,

      Filed January 4, 1892.)

    Tbade unions—Distbict oeganizer—Discharge op.
    Plaintiff was employed by the executive board of a trade union as a district organizer, for a term expiring March 1. In February, becoming dissatisfied with his work, they undertook to discharge him without hearing or trial. Held, that mere dissatisfaction with the way in which he did his work was not sufficient to authorize his discharge; that he could only be discharged for gross negligence, refusal to do the work assigned, or such cause as would authorize the discharge of an employee.
    Appeal from a judgment rendered in the district court of the city of Hew York for the seventh judicial district.

      John Fennel, for resp’t; Edward Gros-se, for app’lt.
   Per Curiam.

This action was brought to recover the salary of the plaintiff as what is known as a district organizer, for three weeks from February 9,1891. The constitution of the Journeymen Tailor’s Union provides for the election of these organizers by the general membership of said union; it also provides that in case of a vacancy, such vacancy may be filled by the executive board of the union. A vacancy having occurred, the plaintiff was appointed to fill it by that board on the 10th September, 1890. The mere appointment, as we understand, does not carry with it any salary. The executive board on the 4th January, 1891, employed the plaintiff as a district organizer for the term expiring on March 1, following. The evidence shows that that board became dissatisfied with the plaintiff’s work, and on the 9th of February, 1891, undertook to discharge him without hearing of trial, claiming that they had the right to do so. In this we think they erred, as they had made a contract for a specific period of time, and the defendant could be discharged only for gross negligence, refusal to do the work assigned him, or such other causes as authorize a discharge of an employee. Mere dissatisfaction with the way in which he did work is not sufficient.

We therefore think that the judgment of the court below was correct both as to the law and the facts, and should be affirmed.

Bookstaver and Bischoff, JJ., concur.


text:
    The Canton Surgical & Dental Company, Resp’t, v. William Webb, App’lt.

      (New York Common Pleas,

      General Term,

      Filed January 4, 1892.)

    Sale—Conditional—Filin» of contract.
    The provisions of the statute in relation to conditional sales make the same, in case of failure to file the contract, absolute only as against subsequent purchasers and mortgagees in good faith, and not as against creditors or mere pledgees.
    Appeal from a judgment rendered in the district court of the city of New York for the eighth judicial district.

      Q. P. Havens, for resp’t; John D. Townsend, for app’lt.
   Bookstaver, J.

This action was brought to recover possession of a dental chair sold by the plaintiff to one John A. Mc-Clelland, about December 1,1890, to be paid for on the instalment plan; title to remain in the plaintiff until the chair was fully paid for. Before that time McClelland had hired a room of the defendant where he used to carry on his business as a dentist. On the 17th of December he owed the defendant about forty dollars for rent, which was demanded of him and which he declared he was unable to pay at that time. Then Mrs. Webb, acting for her husband, the defendant, asked for security if he desired to remain. He offered her as security the chair in question and some trunks, and represented that the chair had cost him $100 in cash and an old chair. Mrs. Webb testified that she accepted the chair and trunks as security and allowed him to remain, and also to keep possession of the security. In January, 1891, the indebtedness for rent had run up to about ninety dollars, and then McClelland was asked to give a chattel mortgage on the chair and other property which he had offered as security, but this he adroitly avoided doing, and upon being pressed for payment undertook to move his property from the premises through the window instead of out of the front door, but was prevented by the defendant After this, the plaintiff, by its agent, demanded the chair of the defendant, and on refusal brought this action.

On the trial it appeared that only ten dollars had been paid bv McClelland on account of the chair. Therefore, under Cole v. Mann, 62 N. Y., 1, and Ballard v. Burgett, 40 id., 314, the title still remained in the plaintiff as between McClelland and his creditors.

It was doubtless to remedy this state of the law respecting conditional sales that chapter 315, Laws of 1884, under which defendant claims the right to hold the chair as against the plaintiff, was passed. But that act provides that conditional sales of goods and chattels shall be deemed absolute, unless the contract, or a copy thereof, be filed as therein designated, as to two classes of persons only, and they are subsequent purchasers and mortgagees in good faith. It does not include the creditors of the debtor, as do the statutes relating to fraudulent conveyances and the filing of chat- ■ tel mortgages. Whether this omission was intentional on the part of the legislature or not we have no means of ascertaining, and can only construe the law as it stands. The defendant was not a purchaser; he does not claim to be. We think it is equally clear he was not a mortgagee. In his answer the defendant claims the right to hold the chair as security or pledge for a debt, and we think the testimony fully establishes that he was a pledgee, and not a mortgagee. There is a wide difference between a mortgage and a pledge. In the first case the title passes subject to being divested by the fulfillment of the conditions of the mortgage ; in a pledge the title does not pass. In a mortgage the possession may or may not pass; but in a pledge it must pass to the pledgee, or he loses his lien. Such obvious and well-known distinctions we do not think were overlooked by the legislature, and we see no possible way by which a mortgage can be construed to include a pledge.

The judgment should therefore be affirmed, with costs. Were the latter in our discretion, we think under the circumstances of this case we would not grant them, but we conceive that under §§ 3067 and 3213 we have no discretion in the matter.

Bischoff, J., concurs.


author: Per Curiam

text:
    James Cherry, Resp’t, v. John Foley, App’lt.

      (New York Common Pleas,

      General Term,

      Filed January 4, 1892.)

    Pleading—Y edification.
    A verification stating that the affiant "knows the foregoing answer to be true ” is insufficient and should be treated as a nullity.
    Appeal from a final order in summary proceedings in a district court in the city of Hew York for the first judicial district.

      James Murphy, for app’lt; J. Callahan, for resp’t..
   Per Curiam

The answer denied that there was anything due upon the contract of hiring on a certain day, and also denied that a demand for the rent had been made. This was verified in the following language : “John Foley, sworn, says that he is the defendant herein, and that he knows the foregoing answer to be true.” This the court below held to be an insufficient verification. It has been repeatedly held that where there is nothing to indicate the affiant intends to swear that the contents of a pleading is true to his ,own knowledge, where the allegations are apparently made upon knowledge, that it is insufficient. Williams v. Riel, 11 How., 374; 5 Duer, 601; Tibballs v. Selfridge, 12 How., 64; Van Horne v. Montgomery, 5 id., 238; Sexaner v. Bowen, 3 Daly, 405.

The case that comes nearest to holding a verification similar to the one under consideration good is The matter of the Application, etc., of Macaulay, 94 N. Y., 574. In that case the affiant declared that “she knows the contents (of the petition) and that the same are. true; ” but in this case the affiant is very far from affirming that. He merely says that he knows the answer is true. We ■do not think he could be convicted of perjury upon such an .affidavit, and that the justice was therefore justified in treating it .as a nullity.

The final order should be affirmed, but without costs.

Bookstaver and Bischoff, JJ., concur.


text:
    Frank Scherer, Resp’t, v. Louis C. Hopkins et al., App’lts.

      (New York Common Pleas,

      General Term,

      Filed January 4, 1892.)

    District courts—Undertaking on removal to common pleas.
    A valid undertaking on the removal of a cause from a district court to the common pleas may he executed before the amount is fixed by the court, and if it is in the amount so fixed, it will be binding on the sureties from the time it is filed with the clerk, although the fact of the fixing is not recited in it.
    Appeal from a judgment of the district court in the city of New York for the fifth judicial district.

      John Fennel, for resp’t: B. Burnham Moffat, for app’lts.
   Bookstaver, J.

This action was brought to recover damages to property caused by defendants’ negligence. With the intention of applying, upon issue being joined, for a removal of the cause to this court, under § 3216 of the Code, the defendants, on April SO, 1891, procured an undertaking on such removal to be executed by The American Surety Company in the sum of $500. On the next morning, which was the return day of the summons, the plaintiff made an oral complaint for damages, as stated above, to which a general denial was orally pleaded. Immediately thereupon the defendants applied to the justice for an order removing the action to this court, and at the same time presented the undertaking, executed as before stated. This was objected to, on the ground that it was not in a sum fixed by the justice, as required by § 3216,' as he had not then fixed any amount.

The objection was sustained by the court, whereupon the defendants asked the justice to fix the amount of the undertaking to be filed by defendants on removal to this court, and the justice fixed $500 as the amount of such undertaking. After the amount was so fixed, the defendants tendered anew the undertaking 'in question, but it was objected to as insufficient, on the ground that when the undertaking was executed no sum had been fixed by the justice, and that it had not been re-executed after the amount was fixed. The court sustained this objection, to which ruling the defendants excepted and filed the bond with the clerk, and the trial proceeded, resulting in a judgment in favor of the plaintiff.

There is but one question presented on this appeal, and that is: Was the undertaking so tendered and filed sufficient under § 3216 of the Code to arrest the proceedings of the court for all purposes except the approval of the undertaking and ordering the removal to this court? No question was at any time raised as to the sufficiency of the sureties or the form of the bond other than that before indicated. An undertaking is'but a simplified bond without a seal. The People ex rel., etc., v. Dando, 20 Abb. N. C., 245; Lutes v. Shelley, 40 Hun, 197. Like a bond it is a nullity until ■delivered, the signing and delivery both being essential to its. validity. The time of the execution of the complaint we think is-of no more importance than the place where it was executed.

In Prather v. Harlan, 6 Bush, 185, it was held that a replevin bond which had been signed by the sureties on Sunday in church and was then given to one Harper to deliver to the deputy sheriff, which he did on Monday, was valid, although the statutes of Kentucky made any contract entered into on Sunday invalid, the-court saying: “ As this .made Harper the agent of the sureties to-deliver the bond, and he delivered it not on Sunday to the officer, and as it did not become obligatory until delivered to the officer,, it cannot be regarded, so far as the plaintiff’s rights are concerned, as executed on Sunday.” To the same effect the Commonwealth v. Kendig, 2 Penn. St., 448, although by the statutes of that state all contracts entered into on Sunday are void. In the course of’ the opinion the court says: “ But when was this bond executed ?' Certainly not until it was delivered, for delivery is of the essence of a deed. It takes effect only from execution on delivery. * * * The business began on Saturday (when one of the obligorssigned), and was continued on Sunday (when the other obligor signed), and finally completed on Monday. Now, although this-exposes the parties to. the criminal penalty imposed by the act, yet it does not avoid the bond, for the statute cannot destroy that which had no existence.”

Unless, therefore, something can be spelled out of § 3216 which requires the sureties to execute the undertaking after the j ustice has named the sum, the delivery of an undertaking, in a sum which the justice-has fixed, answers the requirements of the section, without regard to the date of its execution. That section, among-other things, provides that in actions where damages are claimed, exceeding $100, “ the defendant may, after issue is joined, and before an adjournment has been granted upon his application, apply to the justice of the court in which the action is brought for-an order removing the action into the court of common pleas for the city and county of New York. Such an order must be-granted upon the defendant’s filing with the clerk an undertaking-in a sum fixed by the justice, not exceeding twice the amount of the damages claimed * * * as stated in the complaint * *

In Dunseith v. Linke, 10 Daly, 363, suit was brought upon an undertaking on appeal from a judgment for the delivery of property, or payment of its value, given pursuant to § 1329 of the Code,, which directs that the undertaking shall be “ in a sum fixed by the court below or a judge thereof, to the effect,” etc., and it was objected that no sum had been fixed for the undertaking. Yan Brunt, J., delivering the opinion of the court, says: “ It is claimed upon the part of defendant that no sum was fixed by the court, below. It is conceded that no formal order was made by the court below, or any judge thereof, fixing the amount to be inserted in this undertaking, but it would appear that an undertaking presented to the court and approved by the court in an action of this-description would be a compliance with the requirements of the Code, and would be a fixing, within the language of the Code, by the court of the amount of the undertaking, such fixing being signified by the approval of the court of the undertaking endorsed thereon. The statute nowhere states how, or in what way, the fact that the court or judge has fixed the amount of the undertaking shall be established, and when the evidence discloses the fact that an undertaking has been submitted to the court for its approval in a given case, and the court has approved that undertaking, I can see no reason why that is not an entire compliance, not only with the spirit, but with the letter of the Code. The mere fact of approving an undertaking in a given amount is entirely equivalent to the court saying: ‘We have fixed that amount and approved an undertaking given in such sum.’ ”

It follows as a necessary conclusion- from this decision that a valid undertaking of this description may be executed before the amount is fixed by the court, and that if the undertaking so executed is in the amount so fixed it will be binding upon the ■sureties, although the fact of the fixing is not recited in it. In Doolittle v. Dininny, 31 N. Y., 350, Davies, J., said: “ The Code ■contains no intimation that a recital to precede the undertaking is requisite, nor what it shall contain, if any be used.” See also Post v. Doremus, 60 N. Y., 371; Episcopal Church v. Varian, 28 Barb., 644; Gerould v. Wilson, 81 N. Y., 573.

Nor do we think that the surety in an action brought upon .such undertaking could avail himself of the fact that the amount of the undertaking had not been fixed by the justice when he ■executed it,provided it was subsequently approved by the justice or acted upon by him by ordering the removal of the action. In Coleman v. Bean, 1 Abb. Ct. App. Dec., 394, the undertaking recited the issuing of an attachment, etc., whereas as a matter of fact no attachment had ever been issued. Smith, J., in delivering the opinion says: “ Although the statute under which the proceeding was had contemplates that the giving of such undertaking shall be preceded by the issuing of an attachment, and shall accompany an application to discharge it, and also directs that the undertaking shall be delivered to the court or officer, the noncompliance with the provisions is but an irregularity which the defendant may waive, and the fact of his putting in an undertaking which recites that an attachment had been issued and that he was about to apply for its discharge, is conclusive evidence of such waiver. It is enough that the undertalcing is binding between the principal parties under such circumstances to hold the sureties.” See People v. Falconer, 2 Sandf., 81; Franklin v. Pendleton, 3 id., 574; Decker v. Judson, 16 N. Y., 439; Shaw v. Tobias, 3 id., 192.

In case of the removal of an action we think the filing of the bond with the clerk is equivalent to a delivery in other cases, and that the bond then for the first time binds the sureties upon it.

If the time when the undertaking was executed was immaterial and the sureties were bound from the time of the filing of the undertaking, provided that had been followed by an order ■of removal, we think the court erred in denying the defendants’" motion, there being no question as to the sufficiency of the sureties or the form of the bond in other respects, and that the judgment should be reversed and sent back to the court below to be proceeded with as if no trial or adjournment of the action had been taken after issue joined, with costs of this appeal to the appellants.

Bischoff, J., concurs.


author: Learned, P. J.

text:
    Edward Streever, App’lt, v. Betsey Birch, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December 28, 1891.)

    Civil damage act—Action by employes op a mince.
    The plaintiff made a verbal contract with a minor aged 17 that he should! live with him and be provided with board, clothing and medical attendance and should receive $100 when 'he became 21 years of age. In the-first year of his service the minor became intoxicated at a hotel owned l y the defendant, was frozen on his, return home and the plaintiff was put to-considerable expense for medical attendance and care. In an action by the employer under the Civil Damage Act, chap. 646 of Laws of 1873, Held, that he could not recover, that as the infant’s contract for services was voidable, the plaintiff could have no property in it and therefore was not injured in liis “property” within the meaning of said act.
    Appeal from judgment entered upon the direction of the court, at circuit, dismissing the complaint.

      Edgar 1\ Brackett, for app’lt; James W. Verbeck, for resp't.
   Learned, P. J.

This is an appeal from a judgment on a dismissal of the complaint upon plaintiff’s opening and offer of proof. The facts material are as follows; “ In January, 1890, plaintiff made a verbal contract with one James Tappan, then a minor seventeen years old, that Tappan should live with plaintiff and render him services, and as compensation he should provide Tappan with board, clothing, medical attendance and care in case of sickness,, and should give him $100 when he became twenty-one years of age. Under that agreement Tappan worked from January 25, 1890, to December 25,1890. On the last day the defendant owned a-hotel known to her to be used for the sale of intoxicating liquors;; and the lessee or his agent sold Tappan intoxicating liquor. He became intoxicated, fell in the road, and was seriously frozen. Tappanbeing thus injured was cared for by the plaintiff and provided with medical attendance in pursuance of said agreement to the extent, of $216. Neither plaintiff nor Tappan had repudiated the said verbal agreement. In consequence of Tappan’s injury he was incapacitated from rendering services to plaintiff for two months. The circumstances of the sale (as plaintiff offered to prove them) were such as to entitle plaintiff (if entitled to anything) to punitive damages against defendant.

The sole question is whether under what is called the civil damage act the plaintiff has a cause of action.

Chapter 646 of the Laws of 1873, § 1, leaving out the words-which are not material here, is as follows: “Every employer who shall be injured in person, property or means of- support in consequence of the intoxication of any person, shall have a right of action against any person who shall, by selling intoxicating liquors, have caused the intoxication of such person.” The remainder of the section makes the owner of the building having knowledge, etc., liable with the person selling.

The plaintiff was an employer of Tappan. The question is whether plaintiff was injured in property by Tappan’s intoxication. For it is plain that he was not injured in person or in means of support.

No cause of action exists in his favor by common law. Volans v. Owen, 74 N. Y., 526.

The case of Neu v. McKechnie, 95 N. Y., 632, cited by plaintiff, was one of injury to means of support and, therefore, throws no-light on the present case.

The plaintiff’s first position is that the agreement between him and Tappan was for necessaries and therefore valid. It is true that when an infant has no parent or guardian who is able to furnish what is necessary, he is liable for necessaries furnished him. Kline v. L’Amoureux, 2 Paige, 419. It does not appear whether Tappan had such parent or guardian. But assume that he had none. Then he is liable to pay for necessaries furnished him at his request. But that principle does not mean that the executory contract in regard to” such necessaries is binding. Beardsley v. Hotchkiss, 96 N. Y., 201. This was shown in Baum v. Stone, 12 Wk. Dig., 353, where it is said that the seller may recover, “ not because of the contract fixing the price, but because at law the infant is bound to pay the reasonable worth of necessaries.” Thus in this case the plaintiff may have a good claim against Tappan for the reasonable worth of necessaries furnished him. But the-contract by which Tappan was to do such and such work therefor is not binding. In the case last cited the infant lived with and worked for defendant for several years before coming of age. It was held that, whatever had been the contract between them, the infant was entitled to recover the value of his services after-deducting the value of the necessaries furnished. See Whitmarsh v. Hall, 3 Denio, 375. Here, in the present case, Tappan might, recover from plaintiff the value of services, less necessaries furnished, without regard to the alleged contract between them. The-contract, then, was no more binding because it was for necessaries; and the plaintiff could not enforce it upon that ground. •

Second. The plaintiff insists that infancy is a defense personal to-the infant and therefore that this defendant cannot set it up. That statement of the principle is rather broad. We may quote from Beardsley v. Hotchkiss, ut supra: “ As to contracts purely ex-ecutory it must be shown that the infant ratified them after he became of age before they can be enforced against him. As to contracts executed, such as deeds of land or conveyances of per-' sonal property, they will generally be deemed to be ratified * * unless they be disaffirmed by the infant before he arrives at age or within a reasonable time thereafter. She (the infant) did not disaffirm the contract in her lifetime and left it in full force at her death.” Of course if the infant has ratified or has failed to dis-affirm, as above particularized, at age others cannot treat the contract as void. In the present case Tappan is still a minor and has not ratified and cannot ratify or fail to disaffirm as above stated.

Furthermore, it is not here a question of defense to a contract. The plaintiff claims property as to which he says he has been injured. Then he must show the property. ' If he has no title to the property he cannot recover for the injury.

What then is the property of the plaintiff which ■ he says has been injured ? Hot the care and medical attendance which he has kindly afforded Tappan. Because, as we have seen already, Tappan is liable to pay the value of this. Hot the value of board and clothing which he has furnished. For, as above shown, that can be set off against any claim which Tappan might make for compensation for services. The only property which he can •claim is the right to Tappan’s services; of which he avers that he has been deprived for two months. Then the question must ■arise: had he a valid title to those services? We have already .seen in the case of Baum v. Stone that while the plaintiff is entitled "to compensation for necessaries furnished, he is not entitled to enforce as valid the specific contract made in relation thereto. That is, Tappan is not legally bound to render those services for the necessaries furnished. If he renders services he is entitled to their value. If he receives necessaries he is bound to pay their value. But the contract of services for necessaries and $100 is not binding. Hence the plaintiff has no property therein. When Tappan shall ■arrive at twenty-one the plaintiff’s rights will be simply to be paid for board, clothing, medical care, etc., and his liability will be to pay Tappan what his services were worth. How can Tappan’s intoxication affect that matter ? See Medbury v. Watrous, 7 Hill, 110. We cannot see therefore that the plaintiff has been injured in property. For property must be something which one legally •owns; not that to which he has only a moral claim or which .another person will probably permit him to have.

This view seems conclusive of the case. But another point is -urged, viz., that irrespective of Tappan’s infancy, the contract was void by the statute of frauds, and therefore the plaintiff cannot recover.

The plaintiff’s answer to this is similar to what was insisted above, viz., that no one but the parties and privies to a contract can take .advantage of this statute. How it is undoubtedly true that the parties to a contract void by the statute of frauds may perform it if they choose; and that when they shall have performed it no •one else can allege its invalidity. The plaintiff also urges that where one party has been prevented from performing such a void contract by the fraudulent act of some third person, such third person is liable for damages caused by his act. Rice v. Manley, 66 N. Y., 82, and similar cases.

If this were an action against the defendant at common law for •damages occasioned by some fraudulent act, by which defendant had prevented Tappan from performing his contract, there Would be more analogy with the cases cited. But plaintiff has no cause of action at common law. And his statutory action is limited to injury to property. Take this word in its broadest meaning as including things in possession and things in actioa Then what are things in action or choses in action. “Bights to receive or recover a debt or money, or damages for breach of contract or for tort connected with contract.” Bouvier Law Diet, under “Property ” and “ Choses in Action.” If we turn to the Code, § 3343, for definitions of its own use of words, we find, “ Injury to property is an actionable act whereby the estate of another is lessened, other than a personal injury or breach of a contract.” “Property includes real and personal property.” “Personal property includes money, chattels, things in action and evidences of debt.”

Certainly the plaintiff was not injured as to any property possession. Was he injured as to any chose in action ? Not less he had a legal claim; and he had none.

There is sometimes a cause of action where there is no injury to property; as, for instance, in slander and the like. But the statutory cause of action is confined to injury to property; person and means of support not being now in question. And we are of opinion that the plaintiff had no property which was injured.

The judgment should be affirmed, with costs.

Mayham, J., concurs; Kellogg, J., not acting.


author: Mayham, J.

text:
    In the Matter of the Accounting of Harrison C. Maine, Ex’r.

      (Supreme Court, General Term, Third Department,

      Filed December 28, 1891.)

    Will—Construction—Legacy—Interest.
    A testator devised to his daughter and to her children $5,000, which he directed his executor to invest in a house and deed it to her for life, and after her death to sell it and divide the avails equally among the children. He gave her and her husband the right to live on his farm while the husband performed the terms of a certain lease, and after its sale the executor was directed to purchase said house for his daughter. He further provided that until a house was so purchased, or in case she and her husband did not remain on the farm, she was to be paid interest on the $5,000 until a house was purchased. The daughter died in 1886, and in November of that year the husband left the farm. The executor never-purchased said house. Held, that the children were entitled to interest upon the $5,000 from 1886 to the time of the executor’s accounting, and annually thereafter until they were paid the principal; and that the principle that interest is not due upon a legacy before the legacy itself is due had no application to the facts.
    Appeal by Harrison C. Maine, as executor, etc., from tlie decree of the surrogate of St. Lawrence county, made on the accounting of the executor before such surrogate.

      John G. Keeler, for app’It; A. Z. Squires, for resp’ts.
   Mayham, J.

The testator, Clark Maine, died in the year 1885,. leaving a last will and testament, in which he nominated and appointed Harrison C. Maine as executor and trustee, which will was admitted to probate by the surrogate of St. Lawrence county on the 9th of November, 1885, and the executor named therein thereupon duly qualified and entered upon the discharge of his trusts.

On the 15th of December, 1890, the executor filed an account with the surrogate and asked that the same be judicially settled by and before the surrogate’s court of St. Lawrence county. To “the account as filed the respondents, Mina, Minnie and Mabel .Baker, infants, by their guardians, filed certain specific objections, .and the surrogate, after hearing the proofs and allegations of the parties, made a decree, the substance of which appears in his .summary statement, from which decree this appeal is taken. The main contention on this appeal arises out of the construction of certain provisions of the testator’s will.

By the terms of the will the testator gave to his wife, after liis debts were paid, the exclusive use and occupancy of his home lot of about twenty acres, with the rents and profits of the same, and ■all his personal property on the same at the time of his death, to have and to hold such real and personal property during her lifetime, and gave also to his wife an annuity of $200, which he directed his executor to pay to her annually during her life.

The testator also bequeathed absolutely and contingently to vatíous legatees the sum of $12,200, among which bequests was one ■of $5,000 to his daughter Ella L. Baker or her children in case of her death. The real controversy here is as to the provision in the decree which directs the executor to pay to the respondents, who .are the only surviving children of Ella L. Baker, to whom the testator bequeathed this legacy of $5,000, and who died soon after the testator, the interest on this $5,000 legacy after they removed . with their father from the Russell farm, November 1, 1886, up to the time of this accounting and annually thereafter until the principal sum shall be paid. The language of the will upon the subject of this bequest is as follows: “I give and bequeath to my ■daughter Ella L. Baker and to her children, whether now born or hereafter born, the sum of $5,000, which said sum I direct my ■executor, hereinafter named, or any other person lawfully acting in his stead of and concerning my estate, to invest in a home to be concurred in and approved of by her, and to be deeded to her and her children, and to be held by her during her lifetime and then to descend to her children to be divided or sold and the avails thereof to be divided between them, share and share alike; and I further direct that the said Ella L. and her husband Byron Baker have the right to continue in the use of my farm of about 338 acres in Russell, in said county, with the personal property thereon, so long as they fulfill the conditions of a certain lease to said Byron Baker dated November 15, 1884, and signed by said Baker and myself, and I direct that immediately on the sale of said farm and property, and on receipt of a sufficient sum of money for that purpose, my said executor shall purchase such named home for my said daughter and her children, and that until such home is purchased and ready for her he shall pay to her annually the interest on said sum of $5,000, and in case she and her said husband Byron Baker cease to remain on and occupy said property previous to the sale thereof ‘ thereof ’ then and in that case my said executor is to pay such annual interest until such sale is made or such home is purchased for her from other means.”

On the hearing before the surrogate it was stipulated between the parties, among other things, as follows: “That at the time of the testator’s death his daughter, Mrs. Ella L. Baker, was residing on the 338 acre farm in Bussell, and that she and her husband .and children continued to. reside there until Mrs. Baker’s death, .July 2, 1886; and that thereafter her husband and children continued to reside on said farm until November 1, 1886, when they removed therefrom.

“ That the real estate left by the testator was the 338 acre farm in Bussell, the Marshville home lot left to his widow for life, a half interest in the Chilton farm in Bussell, containing 140 acres, •subject to the life estate of Mrs. Chilton who is still living.

“ That in 1887 there was an agreement made between the executor, the widow of the testator, and Mrs. Clarinda Fellows, whereby Mrs. Fellows was to have the Marshville property in payment of her legacy of $2,000, and sixty dollars interest then due, that the executor was to take care of the testator’s widow during her life, .and that at the death of the testator’s widow Mrs. Fellows should pay the estate the sum of $440, the interest on the legacy in the meantime to be applied towards the support of the widow; that the executor conveyed in fee to Mrs. Fellows the Marshville property January 7, 1887, and that since then she has been in possession thereof; the testator’s widow is now aged seventy-six years, and that no other real estate has been sold, and that the executor* has not charged himself in his accounts with the real estate sold to Mrs. Fellows.”

Upon these facts the surrogate made a decree, in the summary statement of which he charged the executor with the sum of $10,961.68, the amount of the inventory and accumulations thereon, and credited him with disbursements in all amounting to the sum of $9,029.05, leaving a balance in his hands and chargeable to him at the time of the accounting of the sum of $1,872.63, out of which' the decree provided that the executor should retain the sum of $100 for his costs and expenses and pay to the guardian of the respondents the sum of seventy dollars for his -costs and expenses on the accounting, and out of the balance so found in his hands the executor should pay to the general guardian of the respondents the' sum of $1,200 as interest on the :$5,000 legacy from November 1, 1886, the - time they removed with their father from the Bussell farm, to November 1,1890, and that the executor retain the balance of $302.63 to be paid out according to the provisions of the will and accounted for hereafter.

It is contended by the appellant that the learned surrogate,, in making his decree, failed to give effect to all of the provisions of the will, and did not carry out the intentions of the testator as expressed in that instrument, and that it was error to hold that the respondents were entitled to be paid interest on their legacy from the time of the removal of their father from the Bussell farm.

While in som'e of its provisions this will is obscure and the intention of the testator not clearly expressed, yet in the provisions relating to the legacy to Ella L, Baker and her children there seems no ambiguity.

The scheme of the testator as to that bequest is quite apparent. He bequeaths to her absolutely the sum of $5,000, but directs that it be invested by his executor in the purchase of a home for her, and directs the executor, on the sale of the Russell farm and property and on receipt of sufficient money for that purpose, to purchase such home; then follow the two conditions on the happening of each of which interest is to be paid by the executor on this legacy.

First After the sale of the property and farm, and until such home is purchased and ready for her, he shall pay her, annually, interest on the legacy.

Second. In case she and her husband shall “ cease to remain on and occupy said property previous to the sale thereof, then and in that case, my said executor is to pay such annual interest until such sale is made or such home is purchased from other means.”

Under these provisions the evident intention of the testator was to forbear the payment of interest on this legacy so long" as his daughter and her husband occupied the Russell farm under the existing lease. If the same was sold, so that she could no longer enjoy the use of that farm, then until its place was supplied by the purchase by the executor of another home for her she and her children were to be paid annual interest on this $5,000. Or if she and her husband ceased to remain on and occupy this farm, if the same was not sold, then and in that case the executor was required to pay the annual interest on this legacy until the home was purchased with the proceeds of the sale of the Russell farm or from some other means.

We find no other provision of this will which stands in the way of, or is inconsistent with the foregoing interpretation. The appellant as executor had it in his power to stop the payment of this interest out of the bulk of the estate by selling the Russell farm and investing in the purchase of a home for these legatees under the provision of the will. This authority is clearly conferred by the terms of the will, and failing to do so, his duty to pay interest on the happening of the events above suggested is clearly enjoined in that instrument. We are referred by the appellant to the cases of Ritch v. Hawxhurst, 114 N. Y., 515; 23 St. Rep., 919; Roe v. Vingut, 117 N. Y., 212; 27 St. Rep., 238; Goebel v. Wolf, 113 N. Y., 412; 23 St. Rep., 176, as authority upon the construction of a will, where the provisions are ambiguous, that the whole will must be read together to ascertain the intention of the testator.

That rule is well settled by a uniform line of decisions, but it. is equally well settled that when the language of a provision of a will is ambiguous it must be construed according to its natural import.

In Ritch v. Hawxhurst, supra, Bradley, J., says: “When the language of the provision of a will is plain and free_ from ambiguity, effect must be given to its import.’’ It is also insisted by the appellant that this $5,000 legacy is a general legacy and as such it can have no preference over other general legacies given in the will. That contention would be sound if interest were not given by the express terms of the will on this particular legacy under and in pursuance of the provisions above referred to.

But, as we have seen, after the legatee and her husband cease to ■occupy the Bussell farm, the executor is required to pay annual interest on this legacy, whether the Bussell farm is sold or not, until a home is purchased.

It is also insisted by the appellant that interest is not payable until the legacy itself is due, and as the legacy is not due until the farm is sold or the money realized from some other •source, the legacy is not by the terms of the will payable. While this as a general rule may be true, yet the special provisions of ihis bequest take it out of that class of cases and make the interest payable before the legacy falls due. We have discussed this case thus far upon the theory that Ella L. Baker was living .and to be the recipient of this interest. Does the fact of her death or the devolution of her interest upon her children change the obligation ■ of the executor in reference to the payment of this interest ?

On the death of the testator the legacy vested in Ella who surwived him although the payment of the legacy may have been postponed pending the sale of the Bussell farm. Ella had by the will but a life estate and on her death the bequest, which was primarily to her, vested in the children.

There is nothing in the provision of the trust created in this will that postpones the payment of this interest. The trust is for the payment of the testator’s just debts and the legacies therein-before specified, with full power to sell and dispose of the estate •■at public or private sale at such times and in such manner as to him shall seem meet. Then follow the provisions for his purchase of the residue of any interest in any lands in that county in which he has an interest, with the consent of two-thirds of his children.

This provision does not seem to qualify or restrict the duty of the executor to pay this interest to the persons entitled to the interest of Ella on the happening of the event which by the terms •of the will made it payable. It is true that the children of Ella are not mentioned in connection with her rame in this provision, relating to the payment of interest on this legacy, but as the whole interest bequeathed to her was on her death to be divided between them equally, there seems to be no reason why that clause did not on her death enure to their benefit. We are therefore of the opinion that the decree of the surrogate is right and should be affirmed.

Decree affirmed, with costs to the respondent payable out of the estate.

Learned, P. J., and Kellogg, J., concur.