text:
    Josephine Von Atzinger, as Administratrix, etc., Resp’t, v. New York Central and Hudson River Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    Negligence—Contributory.
    The absence of contributory negligence is a fact which must be shown affirmatively, and can never he presumed or inferred from proof of the accident and of negligence on the part of the defendant.
    Appeal from a judgment, entered on a verdict in favor of plaintiff.

      Ashbel Green and Herbert E. Kinney, for app’lt; Wm. McCauley, Jr., for resp’t.
   Brown, P. J.

The plaintiff’s intestate, while driving a covered milk wagon, was struck and killed by a locomotive of the West Shore Railroad at the crossing of the Short Clove Road (so called), near the village of Haverstraw, on the morning of August 5,1893. The evidence introduced by the plaintiff was sufficient to support the finding of negligence on the part of the defendant, but we are of the opinion that it did not permit the conclusion .that the deceased was free from negligence which contributed to. the accident. The scene of the accident was upon the side of a steep mountain. The highway descends the mountain in a northeasterly direction, and crosses the railroad at an acute angle. South of the' crossing the railroad curves to the west, and for a short distance runs in substantially the same direction as the highway. It then curves to the east, and runs southerly. The collision was with a train going north upon the easterly of the two tracks of the railroad. At a point on the highway 600 feet southwest of the crossing, a person can look to the south along the railroad for 3,000 feet. From that point to the crossing the view south is in many places obstructed by rocks and shrubs; but there are places where the view is open, and, as one of the witnesses testified, for about one-half of the distance a person on the highway could see south along the railroad, and for one-half he could not. Between the crossing and a point on the highway 176 feet .southwest, the view of the railroad south was unobstructed, and a train coming north on the tracks within 3,000 feet would be visible to a person at any point on the highway west of the crossing, and within 176 feet thereof. Three witnesses called by the plaintiff testified to seeing, the collision between the locomotive and the wagon in which deceased was riding; but none of the plaintiff’s witnesses saw the deceased, or observed his wagon approaching' the crossing, and there was no evidence tending in any way to indicate whether he took any precaution to ascertain and discover the approach of the train. The flagman stationed at the crossing testified to seeing the horse, immediately before the accident, on the south-bound track, but he observed no effort on the part of the deceased to avoid the train that at that moment was in close proximity to him. The absence of contributory negligence is a fact which must be affirmatively shown by a plaintiff before there can be a recovery for personal injuries. It can never be presumed, and it cannot be inferred from proof of the accidént and of negligence on the part of the defendant. Weston v. City of Troy, 139 N. Y. 281; 54 St. Rep. 493; Tolman v. Syracuse, etc., Railroad Co., 98 N. Y. 198 ; Woodard v. N. Y., L. E & W. Railroad Co., 106 N. Y. 369 ; 11 St. Rep. 169; Riordan v. Ocean Steamship Co., 124 N. Y. 655; 36 St. Rep. 476; Wiwirorski v. L. S. & M. S. Railway Co., 124 N. Y. 420; 36 St. Rep. 405.

In Tolman’s Case the rule is very clearly stated as follows :

“The burden of establishing, affirmatively, freedom from contributory negligence, may be successfully borne, though there were no eyewitnesses of the accident, and even although its precise cause and manner of occurrence are unknown. If, in such case, the surrounding facts and circumstances reasonably indicate or tend to establish that the accident might have occurred without negligence of deceased, that inference becomes possible, in addition to that which involves a careless or willful disregard of personal safety, and so a question of fact may arise to be solved by a jury, and require a choice between possible, but divergent, inferences. If, on the other hand, those facts and circumstances, coupled with the occurrence of the accident, do not indicate or tend to establish the existence of some cause or occasion of the latter which is consistent with the exercise of proper prudence and care, then the inference of negligence is the only one left to be drawn, and the burden resting upon the plaintiff is not successfully borne, and a nonsuit for that reason becomes inevitable.”

And in Riordan's Case the court said:

“ We are not permitted to guess or assume that the deceased was free from fault because he was injured, or that every person will take care of himself from regard to his own life and safety.' * * * It is incumbent upon the plaintiff to show such facts and circumstances as will satisfy the minds of the jurors that the deceased exercised proper care and prudence, and did not omit the precautions of a prudent man under the circumstances.”

Tolman’s Cuse was quite like the case at bar. The accident occurred at a highway crossing in the evening, and there was no evidence of the exercise of care by the deceased. To one approaching the crossing, the headlight of an approaching locomo- . tive was visible for a distance great enough to give adequate warning. There was nothing in the condition of the atmosphere to have prevented the deceased seeing the locomotive if he had looked in the direction from which it approached him. On this state of facts, a judgment in plaintiff’s favor was reversed, the court saying:

“ It is impossible to doubt that deceased might have seen the approaching train if he had looked for it as a prudent man should.”

The collision in the case before us occurred in broad daylight, and there was nothing to obscure the vision, or prevent the deceased seeing the train as it approached the crossing. The crossing was a dangerous one, but the deceased was familiar with it, and had been in the habit of using it daily for several months prior to the accident. He was bound to look and listen, and to have such control of his horse as would enable him to avoid an impending danger. It appears that his horse was going slowly at the time of the accident. Apparently, it was under the complete control of the driver. But, in the absence of all evidence as to the conduct of the deceased as he approached the crossing, how is it. possible to say that he took the precaution which a prudent man was bound to take with reference to his safety ? Did he listen for the train ? Did he look for it at any of the points at which he could have seen its approach ? Did he see it as he drove his horse over the 170 feet of road just west of the crossing ? If he did, how did he come to get himself in front of the engine ? Did he try to avoid it, and, if so, what did he do? Did he fail to see it? If so, what was the cause or reason for that? These inquiries are vital to the plaintiff’s case. In the absence of evidence they cannot have an intelligent answer. It is, I think, impossible to contemplate such an accident as occurred to the deceased under the circumstances disclosed, and not be convinced that the slightest attention on the part of the deceased, and most ordinary care on his part, would have avoided it; and that when a man, in broad daylight, gets himself in front of a train of cars whose approach is visible to him from several points upon the highway over which he approached the railroad, the conclusion, in the absence of any explanatory evidence, is irresistible that it was the result of gross carelessness upon his part. As was said in Tolman's Case supra:

The facts leave the occurrence explainable as to its cause only by the theory of negligence on the part of deceased. They indicate no way in which the accident might have happened, suggest no adequate cause which could or might have operated, which way or cause showed freedom from fault on the part of deceased, and could have produced the result in spite of his care and prudence."

The judgment must be reversed, and a new trial granted, with costs to abide the event.


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    Francis D. Carley, App’lt, v. J. Kennedy Tod, et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 14, 1894.)

    Contract—Cancellation.
    A contract will not, in the absence of fraud, be cancelled because one took advantage of the necessitous condition of the other party.
    Appeal from a judgment in favor of defendants.

      Geo. C. Holt, for app’lt; Stephen H. Olin, for resp'ts.
   Van Brunt, P. J.

Prior to December, 1888, the plaintiff, who had been residing in Louisville, Ky., was the president of two Kentucky corporations,—the Kentucky Union Land Company and the Kentucky Union Railway Company. The land company was the owner of large tracts of land in Southeastern Kentucky, and the railway company was organized to construct a line of railroad from Lexington, Ky., to a point in the vicinity of these lands, a distance of about a hundred miles. The stock of the railway company was owned by the land company. The construction of the railroad had been commenced, and 14 or 15 miles of road had been substantially completed. In December, 1888, the plaintiff entered into certain negotiations for the furtherance of the enterprise in which he was interested with the defendants J. Kennedy Tod & Co., who were bankers doing business in the city of New York. In the concise statement of the facts which it is considered necessary to insert in this opinion, it has not been deemed advisable to refer to all the negotiations which led up to the various agreements of these parties, nor particularly to refer to agreements which were subsequently abandoned, except so far as such agreements may tend to illustrate the position and rights of the parties as affecting’the questions to which the adjudication in this action relates. As the result of the negotiations between the plaintiff and the defendants Tod & Co., various arrangements were made in the month of January, 1889, some of which were abandoned, and finally, on the 23d of January, propositions in writing were submitted by the defendants Tod & Co. to the plaintiff, and accepted by him, by which the defendants Tod & Co, agreed to purchase certain securities of the railway company, guaranteed by the land company, subject to examination and approval. The propositions of' the defendants Tod & Co. were on the 24th of January, 1889, accepted by the plaintiff; and contemporaneously with these agreements in respect to the purchase of the securities of the railway company, as an independent transaction, Tod & ■Co. agreed to purchase $500,000 of the capital stock of the land ■company the entire proceeds of which to belong to and be placed in the treasury of the land company. On the 9th of February, 1889, the defendants Tod & Co. accepted, without reservation, the propositions of sale of the railway company bonds upon the terms ■stated in the letter, above referred to, of the 23d of January, 1889. They thus became obligated to take from the plaintiff $1,000,000 •of the railway company bonds and $200,000 of the 5 per cent, preferred stock of the company, at 92i§- per cent, of the par value of ■said bonds and accrued interest, less a commission of 1 per cent, of the par value of the bonds. The stock and bonds were to be delivered, $500,000 of the bonds and $100,000 of the preferred stock on the 1st of April, 1889, and $500,000 of the bonds and $100,-000 of the preferred stock on the 1st of June, 1889. The defendants Tod & Co. also had an option to purchase from the plaintiff, on the same terms as to price, additional amounts of said bonds ■and preferred stock as follows: $500,000 in bonds and $100,000 in preferred stock on the 1st of July, 1889, the same amount on the 1st of September, 1889, the same amount on the 1st of November, 1889, and the same amount on the 1st of January, 1890. It was further agreed that the due payment of the principal and interest on said bonds and the dividends on said preferred stock should be guaranteed by the land company. On the 23d of February, 1889, a further agreement was entered into between the defendants J. Kennedy Tod & Co. and the plaintiff, by which the defendants agreed, in consideration of two promissory notes,, each for $40,000, to take from the plaintiff $850,000 of the railway company bonds, at the price of 92|- per cent of the par value of the bonds and accrued interest, in monthly installments from the 1st of July, 1889, to November, 29, 1890, it being expressly declared, however, that if the defendants Tod & Co. exercised the option which they held of purchasing from the plaintiff $500,000 of the railway company bonds and $100,000 of preferred stock on the 1st of July, 1889, the exercise of such option should be held as part fulfillment of this agreement. And there was the same declaration in reference to the option maturing on the 2d of September, 1889. In February, also, the defendants Tod & Co. purchased of the plaintiff 1,000 shares of the stock of the land company at 33. On the 23d of March, 1889, an agreement was entered into between the railway company and the defendants Tod ■& Co. to the same effect as the agreement of February 23d, .1889, between Tod & Co and the plaintiff. The defendants Tod & Co. exercised the first two options. The two promissory notes of $40,-000 each, wére paid by the plaintiff in October, 1889. The two remaining options, each to take $500,000. of the railway company bonds, and the accompanying guaranteed preference stock, were extended, the first, which was due on November 1, 1889, to not later than May, 1890, and the second, which was due January, 1890, to not later than August 1, 1890.

On the 4th of November the plaintiff wrote to the defendants Tod & Co., a letter in which he says:

“Assuming that our financiering, as you understand it, in regard to the railway completion, will take care of that branch of the business, I think we ought to turn our attention to the interests of the land company. If we can arrange with these holding the $800,000 of K. U. Land bonds to surrender them, and take instead a like portion of a new first mortgage K. IT. Land bond, say $2,000,000, could you not form a syndicate which would take a few bonds of this new . issue, say $250,000, with an option for a like amount every few months ? * * * With the completion of the road assured, as it certainly now is, so far as necessary for the development of most of our properties is concerned, and with the study given to the lumber business by Mr. Baring, it occured to me you would feel sufficiently assured of the income of the land company from lumber, cannel coal, and sale of lands to speak of this new bond in such confidence that a syndicate would take hold of it. We need money for the land company at many points.”

On the 17th of January, 1890, the plaintiff wrote to Tod & Co. as follows: “The temporary delay in the operation of the mill is working no injury, because we will be able to get fully ready for the opening of the spring trade, which commences in March.”

And then, after speaking of the great advantages which they would derive from quarter-sawed oak and such kinds of wood, he says:

. “Meanwhile, the road is pushed to the utmost capacity of our cars, with the business forced upon us by the public, the construction business, and the movement of logs. As I Wrote you before, there will nbt be a week in its history when it will not earn its fixed charges on the number of miles in operation. In fact, the-spring months will show such large earnings that I fear we will hesitate to make them public, on account of the interest which will be held by the counties of Fayette and Clark, and city of Lexington.”

• On February 13th, 1890, he writes to the defendants, and, after-speaking of the fact that it was not proposed at present to make public the earnings of the road and the condition of certain other enterprises connected therewith, he says:

“The freight on these logs and the freight on our sawed lumber, both logs and lumber being at this moment where you can put your eyes on them, will give the road so much freight that we-would'not need but a small portion of what the public will do to earn the fixed charges. Your Mr. Tod will be pleased with the situation when he comes here. 1 do not intend to call him out here, however, until the dry kilns and the planing mill are in operation.”' On the 14th of February, 1890, the plaintiff writes that the bonds might be brought out some time along, say about the 1st. day of April or the 15th day of March, with the simple statement that this road, although new, has already passengers and traffic-earnings which will provide for its fixed charges, and “You should be able to make this statement from the investigating trip which you will make in two or three weeks.”

On the 18th he writes, among other things:

“Glad to report that I have arranged for our payments this: month, and feel everything is encouraging, as far as I know, that we will earn, by the 20th of March, $200,000, and be in funds again.”

On the 19th of February, 1890, J. Kennedy Tod writes to the plaintiff acknowledging the receipt of the letters of the 13th and 14th of February, above mentioned, and telling him that he would come to Kentucky when the plaintiff thought the proper time had arrived, but he would like a week’s notice, and that he would bring with him some friends. He states that he could not concur in the views of the plaintiff upon the subject of the issue of bonds;, and then gives his reason for such nonconcurrence, and proposes a. plan in -reference to the issue of preferred stock by the land company, being evidently a "counter proposition to that which was sent to Tod & Co. by the plaintiff on the 4th of. November,-1889, above mentioned. On the 20th of February the plaintiff writes:

. “Fortunately- we have only good news in regard to railroad construction, and it seems to be the conviction of the contractors and the railroad men that they will get through in time - for the first $50 000.”

He then speaks of an interview he had had with Mr. Spencer, of the firm, of Drexel, Morgan & Go., and says:

•‘I think after I have been to Clay City a few days, and put everything in fine trim, that you will come there and be convinced that you can make your issue of bonds on the statement of the two companies that the net earnings of the railway company or the net earnings of the land company, either of them, is sufficient to pay the fixed charges of the road. I shall be prepared to make this statement after the middle of March or the first day of April, and I think you will be prepared to accept it as true. Of course, I mean I will be using the present tense as to its net earnings, and not the past.”

On the 5th of March the plaintiff writes to Tod & Go. to give them prompt notice that he was in negotiation with another banking house in order to provide “for those of our interest in regard to which you hold us in long uncertainty”; manifestly endeavoring to egg on the defendants by the assertion that unless they were more speedy in their conclusion they would lose all the profits which might arise on the transaction. On the 17th of March he furnishes his letter as follows:

“My most extravagant prophesies have been realized, and I now calculate that the profits of the K. IT. Land company will be, the next twelve months, not less than $800,000. Sales are being made and contracts closed which warrant these figures. We are getting benefits from the boom, but are allowing no boom prices or excitement, as our whole endeavor is to turn the excitement and speculative feeling of the people into permanent developments, and manufacturing and town developments along the road.”

In the latter part of March, about the 20th, Mr. Morthcote, a member of the firm of J. Kennedy Tod & Co., a Mr. Menzies, a Scotchman, and Mr. Oyens, of Amsterdam, went to Louisville, and thence traveled over the property; and between Mr. Horthcote, these gentlemen, and the plaintiff certain negotiations were had as to what should be done in the future. It is claimed by the plaintiff in this action that an agreement was entered into whereby the defendants exercised the option which did not become due until the 1st of May, 1890, for the taking of the bonds and stock; and that it was also agreed that the land company should obtain authority from the legislature to issue $2,000,000 of preferred stock ; that $1,000,000 of such preferred stock should in- fact be issued, half of which should be taken by Oarley, and the other half by Tod & Go., and that Carley should with his $800,000 of ¡^referred stock take up all of the outstanding $800,000 of land company bonds, with the exception of about $100,000 of said bonds, which Tpd & Go. had sold to their customers,' and which it was claimed Nbrthcote agreed that Tod & Go. should take care of; and that Tod &Co. should be paid $40,000 in cash for taking the $800,000 of preferred stock. This alleged agreement, it is admitted, was subject to the provision that Oyens and Menzies were to go over the property and should approve it. There were various other details relating to this alleged statement which it is not necessary to mention. Horthcote, Oyens, and Menzies left

Louisville, and went over the property, and, it is claimed by the plaintiff, upon their return were satisfied with the arrangement. But we have searched the record in vain to find, even from the testimony of Carley, that any agreement such as is claimed was made. These negotiations undoubtedly took place, and propositions such as were testified to by Carley were made ; but there is no evidence whatever that they were understood to be in the form of an agreement, or that Tod & Go. waived their right to refuse to exercise their option on the 1st of May, 1890. It is said that it was agreed that Tod & Co. should be paid $40,000 in cash for taking the $800,000 of preferred stock. But we fail to find any evidence of any such agreement. It is true Tod & Co. claimed a commission of 5 per cent., amounting to $40,000, but that there was any binding agreement to pay such commission nowhere appears in the record, so far as we have been able to find. It is true that Carley in his testimony speaks of this agreement and that agreement in connection with this transaction ; but, when he gives that which actually took place, it is evident that no agreement was entered into between the parties ; that it was all tentative and that there was no intention upon the part of Tod & Co. to waive their right to refuse to take the bonds on the 1st of May, 1890. It is true that the plaintiff thereupon went to work in Kentucky and procured the passage of an act of the legislature authorizing the land company to issue preferred stock; that he saw all the Kentucky holders of the land company bonds, endeavoring to arrange for their taking preferred stock in place of their bonds, and, where they refused, himself purchasing their bonds for cash; and that he issued various notes and commercial paper, payable at the office of Tod & Co. on the 1st of May, 1890, the date fixed for Tod & Co. to exercise the option in reference to the $500,000 of railway bonds, and when it was understood that the final arrangements in regard to the preferred stock of the land company were to be carried out. But all these things were based upon the assumption that it was for the interest of Tod & Co. to carry out this proposed agreement. In fact, the learned counsel for the plaintiff argues that Tod & Co. were in such a position that, although they probably had the legal right to refuse to take any additional installment at any time, if they saw fit, they never would do so, and allow another banking house to purchase these bonds and put on the market a portion of this issue, and offer them for sale in competition with their own bonds. He says:

“The provision in the contracts made by Tod &' Company for options to take additional amounts of bonds in installments, while it probably conferred upon them the legal right to refuse to take any additional installment at any time, if they saw fit, was, however, simply a provision for their protection in case of any unexpected developments substantially justifying a rescission of the contract; and it never could have been the intention of any of the parties, when Tod & Company started to form a syndicate, take those bonds, and build this railroad, that they should not in substance take the whole issue of bonds. Mr. Carley and everybody else who had put money into the enterprise had a right to rely upon and put confidence in the good faith of Tod & Company in the administration of the financial affairs of the enterprise, and Tod & Company had no more right, when the enterprise got into financial difficulties, to take an oppressive and unconscionable advantage of the situation to' compel exactions from the other gentlemen interested in the enterprise, than one partner has to take advantage of his copartner under such circumstances.”

In other words, that, although Tod & Co. had an option to take these bonds, yet, because people had been acting upon the assumption that they had got their feet so deep in the mire that they could not get them out without sacrificing everything they had put into the enterprise, if they chose to make this sacrifice, they should not be allowed to do so. We cannot understand that this was the position of Tod & Co. It is true that they were already possessed of a large amount of the securities, and that they had this option. , And this argument upon the part of the counsel for the plaintiff was probably the argument which brought the plaintiff to believe that he had an agreement with the defendants in regard to this land company business, and that they had agreed to exercise their option of the 1st of May, 1890. But, as already stated, there is no Cevidence whatever of any agreement entered into by Tod & Co. which was binding upon them, nor any waiver of their rights to take the $500,000 in bonds and the stock on the 1st of May, 1890.

Without laying any stress upon the letters of the plaintiff which have been offered in evidence, and which contain expressions inconsistent with the idea that there was an agreement, let us come to the interview of the 1st of May, 1890, in whicli the defendants are alleged to have exercised their brutality as against the plaintiff. The plaintiff came to Hew York, to the office of Tod & Co., in reference to carrying out these preliminary agreements and securing the taking of the bonds in respect to which Tod & Co. held an option. Claims were made upon the part of Tod & Co. that their bookkeeper, who had been sent to Louisville to examine the accounts there, had reported that the obligations of the company largely exceeded those which had been reported by the plaintiff; and the plaintiff asserted that certain assets of the land company had not been sufficiently considered by the accountant. And then Ihe bargain was made between the plaintiff and Tod & Co., which the plaintiff claims was exacted from him by his necessities, and letters were signed in the form of agreements Embodying these contracts. It is true that the plaintiff claims that he protested against being compelled to accede to the terms which were offered him, and that the conduct of the defendants was brutal. But he nowhere claimed, as he now claims upon this appeal, that there was any binding agreement made prior to the 1st of May, 1890, which was contrary to this new arrangement. The plaintiff did claim that the defendants were driving the hardest kind of a bargain, to which his necessities compelled him to accede, because the notes which he had issued were becoming due, and it was impossible for him to pay them unless Tod & Go. exercised their option to take the bonds, and thus provide the funds. But it nowhere appears that any claim was made at this time that there was any binding agreement as between these parties. In fact, we find from the evidence that in April the form of an agreement to be entered into to carry out the intention of the parties was being considered, and that the plaintiff made amendments thereto, and suggested, in a lengthy memorandum in his own handwriting, what should be the form of such agreement,—a condition of affairs entirely inconsistent with the idea that there had been any definite agreement made in the March previous; because, if such an agreement had been entered into, why should they be negotiating in regard to the terms of an agreement in April, and finally signing an agreement in May ? .

On the 18th of May, 1890, notwithstanding the brutality and amazing cruelty with which he had been treated by the defendants on the 1st, the plaintiff writes:

“ I send certificate to the amount of $100,000 face value of the common stock of the Kentucky Union Land Company, which I am arranging to sell in this market, as explained below, etc. Kindly attend to this at once, as the market is ripe here for the stock, fifty-five having been bid here to-day [5 per cent, higher than the stock was valued at in the arrangements between the defendants Tod & Co. and the plaintiff].”

On the 16th of May one of the defendants writes to the plaintiff :

“We note from your letters, with great pleasure, that the land company’s common stock is quoted at 55 per cent. This, as you advised us formerly, is no doubt due to the present improved financial standing of the companies brought about by the sale of the preferred stock. We have 470 shares for sale at not under 50 per cent., and" we fear that were we to proceed with its sale our interests might conflict in the market. We therefore suggest that you proceed with the sale on a three-thirds account; that is, in all sales made up to 1,210 shares, you give us a one-third interest. Kindly advise us if this meets your views, and call upon us for our proportion of the stock as it may be required.”

On the 22d of May the plaintiff writes:

“I have your note of the 16th Of May, and cannot work the stock matter exactly as you suggest. I explained to Mr. North-cote what I am trying to do, and that is to place, the stock that I bought from you around in the state of Kentucky, and get larger holding here, and more interest in the property. I am not selling any of my own stock, except as I bought it from you, and I havd already arranged with the syndicate of Kentuckians to work this matter, I do not wish to approach these men about other stock until they are nearly through with the first lot. If you will give me a refusal of the 470 shares, I will, as soon as I can do it, turn over to them at cost, say at 50 cents, and let the syndicate make the difference if they can. This is what I have done with the $100,000 bought from you. Of course, the syndicate must make five or ten points for us to work it. They are the most influential men I could find. If you will refer this to Mr. Northcote, he will explain more fully, as I showed it up to him.”

On the 30th of May, 1890, the plaintiff, who had been so brutally treated by the defendants, writes to them:

“ Possibly it might interest you to know the feelings of the people here about our enterprise, as reflected in the inquiries for the common stock. There are all sorts of bids made for the stock between 55 and 65, according to the eagerness of the buyer, but there is absolutely no stock offered. If my associates care to do so, they could apparently sell their holdings very rapidly. There is a universal conviction throughout the state that this enterprise is destined to furnish the most substantial securities ever in the state. ” The plaintiff having demanded a statement of his account on the 23d of May, 1890, Tod & Co. inclosed a statement of the account showing—First, a note of the securities which they held against his account; and, secondly, a statement of the account to date, showing a nominal balance in his favor of $13,913.38. Attention is also called to the fact that they held a demand note of the plaintiff for $90,000 advanced on the 11th of April.

On the 28th of May, 1890, the plaintiff wrote to the defendants as follows:

“After surrendering my note for $90,000 and interest, and taking a new note for $50,000, dated May 1st, as arranged, f-»r the purchase of $100,000 common stock, and assuming that the Mechanics’ Trust Company will remit $19,800 for 198 shares K. U. preferred stock with interest. I will then be in your debt for immediate payment something over $6,000. Be kind enough to make up the account on this basis.”

On the same day he wrote:

“ Please send to the Mechanics’ Trust Company of Louisville the 198 shares of Kentucky Union Land Company preferred stock, writing them that I have asked of you to send it to them, and to return to you as it is sold, par and 6 per cent, interest from May 1st. The president of this company is one of your little syndicate, and the plan will be to work this off at the earliest convenience."

On the 4th of June the defendants replied that they had sent the 198 shares to the Mechanics’ Trust Company for sale at par and 7 per cent, interest, instead of 6 per cent, interest, as mentioned by him. They also say:

“We have made up your account upon the lines indicated by you, as far as possible, but we cannot, of course, anticipate the sale of the land company stock. We inclose a statement herewith, showing a balance in our favor of $26,896.62. We also inclose herewith a note of $50,000, at six per cent, interest, due 1st November next. Please sign it and return it to us at your earliest ■convenience. This note is secured by 1,000 shares of Kentucky Union Land Co. stock, and by any other securities which we may "hold for you. The balance of our advance, as arranged by you, would be secured upon the land company preferred stock without any margin. We have therefore decided to hold the railway company guaranteed preference stock. After the explanations and assurances given to us when you were here, we must decline to believe that you are encountering difficulties in financing.”

On the 20th of June Tod & Go. wrote to the plaintiff asking for a return without delay of the note for $50,000. On the 21st of June the plaintiff writes Tod & Go. :

“ Having received only $10,000 from the $300,000 subscriptions, I have found it necessary to make two or three checks dated in July, and payable at your office, for which, of course, you are-not responsible. I am positive that I can have the funds thereby that time.”

On the 23d of June, 1890, the plaintiff writes to the defendants :

“ In reference to the proposed note for $50,000, I do not see how I could pay it. My securities are so hypothecated that they are not available. When this transaction was pressed upon me, I stated that I thought I could dispose of it within six months,, but the fact that the company is largely in debt renders it impossible to sell here at this time. I make the proposition to you to exchange $50,000 of my preferred stock for this $100,000 of common stock. * * * I beg you to realize that this company is carrying a large floating debt, and, while I am indorsing all its notes, it is not possible, in so small a place as Louisville, to make a market for this company’s stock until we have our financial affairs in better shape.”

On the 26th of June Tod & Co. replied to this letter. They say:

“ Your apprehension of . difficulty in meeting the promised note when it falls due constitutes no valid reason for neglect hitherto to sign and deliver it. Surely our treatment of you in the past would justify on your part some belief that we could grant indulgence when it was deserved and sought in good faith. We take exceptions to your remarks that the transaction was ‘ pressed ’ upon you. It was an ordinary business transaction, in which both you and we were free agents, and at the time it was entered upon you were confident the stock acquired by you could be soldi readily, at a good profit, to the syndicate you proposed to create in Louisville. That your expectations have so far been disappointed we regret very ranch, but we are simply amazed when you inform us that this is due to the fact that the company (we-presume you mean the land company) is so largely in debt. We do not suppose debt now exists of which you did not know during your recent negotiations with Mr. Oyens and ourselves, and wears therefore at a lose to understand you.

On the same day the plaintiff writes to Tod & Go.:

“lam pained to write that our financial position is in a climax. When Mr. Ghurch balanced our books as of the 1st of April, we found we would have a floating debt, after the preferred stock was taken, of something over $400,000, as you stated in your office on the morning of the 1st of May. The fears that, you then expressed have been verified. The vouchers for grading and masonry, etc., the bills from the country people for ties, etc., the collection of small bills for supplies and iron fixtures, the back percentage of contractors, and other accounts for the railroad have brought this indebtedness .to at least $700,000, and by July 15th it will be at least $750,000, and will probably cost, at the lowest calculation, another hundred thousand to get the property in operation. * * * We cannot keep from protest longer than ten days, and this will precipitate us into chaos.”

He then states that he has talked the matter over for hours with the directors, and they could not see anything to relieve them, except to make the best security the two companies could jointly make, and try and realize among their friends as much as they could. He then asks the defendants to go there for a meeting which they would have on Thursday, or, if they could not. come on that day, to put it off until Friday, or even Saturday.

On the 28th of June the plaintiff writes a personal letter to the-defendant J. Kennedy Tod:

“ I addressed you a letter to-day as president, which tells all there is to say about our unfortunate condition. I now wish to write to you a personal letter to say that I appreciate to the fullest degree your unfortunate condition in this matter, and that. I will do all I can, as I always have done, to protect the credit of the road, or of your relations to it, and to urge upon you. the necessity of cordial co-operation with us to do what can be done, because I have the firm belief that if you help me to sustain the credit of the company in this community that I can float some security here which will pull us through.”

And again:

“You may be very positive that, if I had believed the situation would come up as it is, I would not have put my $600,000' on preferred stock in that position, nor would I have been a party to selling Mr. Oyens the common stock at 50, nor would I have hesitated a moment over declining to buy it myself at 50. * * * How, if you do not wish to be a party to this new security, I will cheerfully stand up for its responsibility, and will make such explanation in regard to the extra cost on the road as best. I can in. order to account for the language of a letter which I never should have signed. When I wrote that I believed the land company had realizable cash assets, I believed that by sacrificing myself or-my securities I could make such securities as the land company had available to carry that floating debt, or to balance it. I was; mistaken,—honestly mistaken,—-and you were more nearly right, than I when you expressed the fear you did. * * * If you wish to throw the entire responsibility on me, you need not come,, and we will use the best security we can, and, of course, offer it to all stockholders alike, and I feel confident I can place some securities here if we can keep our credit as it now stands. I would much prefer for you to come here, but if you think best not to-come we will go on as best we can, and in that event I will prepare letter for Oyens and others explaining extra costs of railroad, etc.”

On the 30th of June, J. Kennedy Tod replies to this personal letter of the plaintiff :

“ I received your personal letter of the 28th current this morning and I telegraphed you that I would meet you in Louisville on Thursday, as requested. The extraordinary situation which your letter records baffles me when I attempt to deal with it by letter, but there are some things you say which I desire to answer by record. My brother did not, as you say, write that he J declined to believe that you were in need of collateral.’ What my firm did say, was that, ‘ after the explanations and assurances given to us when you were here, we must decline to believe that you are encountering difficulties in financing.’ Had we known then, as we do to-day for the first time, that large sums of indebtedness were concealed from our expert accountant, we would have understood your difficulty. * * * I protest against, and resent, your remark that if I do not give you more money we will both fall, into positive disgrace in the eyes of the world. Knowing the facts as you do, it is simply silly. Having in good faith invested my own and my friends’ money in your enterprise, it is no more than my plain duty to come at once to Louisville, and ;see what, if anything, can be done in a businesslike way to protect them and myself, but I do not come to share any responsibilities which are primarily and exclusively yours, and I resent your seeming attempt to involve me in them.”

On July 3d the plaintiff wrote, in answer to this letter:

“ I regret very much to have used the word 1 disgrace ’ in regard to you and myself in my personal letter of the 28th. I did not give the meaning to the word which you seem to take. I should have used the word 1 humiliating, ’ as you will readily see when you remember that I apply the same word to myself. In any event, I regret to use the word, and assure you I have no meaning in it but that of humiliation from what I feared would be a calamity to both.”

In August the plaintiff made additional application for money, trying to borrow $200,000 for himself which was refused, and also applying to borrow money for the land company. Finally, on or about the 5th of September, 1890, it was agreed, after considerable negotiations, that Tod & Go. should advance the money, the plaintiff pledging certain secureties, and agreeing that all the money borrowed should be advanced by him to the land company. It was also agreed-that the plaintiff should have an exten.sion of time on his personal account, the amount of such personal account being calculated at $70,533.47, being made up of the $50,000 claimed to be due from the plaintiff for the common stock of the land company which he had taken on the 1st of May at 50, and the amount of $19,500 being the balance of the $200,000 of land company preferred stock which the plaintiff had been unable to sell, and which the defendants charged to him as upon a sale of stock to him with accrued interest. It was also agreed that the plaintiff should have his securities back, provided he paid within one year any notes outstanding of the land company, being part of said $200,000, and his note for $70,533.47, which he had given dated September 9, 1890, to represent that amount and the additional sum of $50,000. The transaction was agreed upon on that basis, and subsequently an agreement -embracing the same was signed some time in November, 1890.

In 1892 this action was brought to set aside this transaction of September, 1890, upon the ground that the transfer of the securities by the plaintiff to Tod & Co. was without consideration, and was extorted by said Tod & Co. from the plaintiff by compulsion and duress and by the pressure of the circumstances under which it was executed, and was usurious and invalid and void. The defendants answered, denying the extortion and usury, and counterclaiming the amount of the notes held by them against the plaintiff. Upon the trial the court held that the contract referred to was not without consideration, and was not extorted neither were the notes extorted from the plaintiff; and that although said agreement of September 8, 1890, and the said notes, dated September 9, 1890, were affected by usury, they were not void on account of such usury, or any other ground alleged in the complaint, but that said notes were enforceable only to an amount in the aggregate of $69,500. And from this judgment the plaintiff appeals.

It is urged upon the part of the plaintiff that the transaction should be set aside by a court of equity as inequitable and oppressive, and as extorted by Tod & Co. from Carley under the pressure of his financial difficulties. And it is claimed that the contract in question will be set aside as so oppressive and rapacious that it cannot be tolerated by a court of equity. It may be a question, upon a consideration of the whole of this evidence, as to who has been the greatest victim under the arrangement. There is no doubt that the plaintiff is of the opinion that Tod & Co. drove a hard bargain with him because of his pecuniary necessities. But it may be equally well claimed upon the part of the defendants that the plaintiff had made misrepresentations to them in regard to the success of the enterprise, and had concealed the true condition of its indebtedness, in order that he might induce them to embark their moneys therein. The correspondence shows that glittering promises were held out by the plaintiff to these defendants to induce them to go on with the enterprise, and then its sudden collapse occurred because its indebtedness was so much greater than that which the plaintiff had represented. The argument of the plaintiff’s counsel in support of his contention seems to be based upon the claim that, because the defendant had large pecuniary interests in this enterprise therefore they were bound to go on advancing money, upon terms to be dictated by the plaintiff, in order that they might not both be involved in the common ruin. In all these transactions the plaintiff was a free agent, and the necessitous condition in which he found himself seems to have been largely due to the fact of his shutting his eyes to circumstances in respect to which he had full knowledge, and of which the defendants were not made aware. Necessitous situations upon the part of a borrower always enable a lender to make a hard bargain ; and the defendants, in their negotiations in May and September, 1890, seemed to have availed themselves of their situation. But there was nothing in their conduct which would enable the court to say that they had been guilty of fraud, or of such conduct that they should be required to lose the money which they had advanced to this plaintiff and his enterprises in-good faith. It is claimed that the burden of proof was upon the: defendants to establish that this contract was fair and equitable,, and that no undue advantage was taken of the plaintiff in exacting it from him. And this proposition is sought to be upheld upon the ground that the relations between these parties were those of trust and confidence; that they were partners in this-enterprise; that Tod & Co. were trustees, and that the plaintiff was a cestui que trust, and that therefore they occupied fiduciary and confidential relations to each other. But, even if this claim' should be admitted, there is no doubt that Carley deceived the defendants in regard to the situation of this property ; and the results of that deceit were the placing of the enterprise in the necessitous straits which brought about these demands for additional loans. If the defendants occupied a trust relation to the plaintiff, certainly the plaintiff occupied a trust relation to the defendants, and he was bound, as well as they, to the utmost good faith in respect to the transactions which were undertaken between them. Now, he admits in his own letter that he had misrepresented the situation of this property, and that their accountant was right in regard to its financial condition, which he denied in May, at the interview, when he was desirous of getting the defendants to continue their advances, in order that he might meet the obligations of his company. But there was no such relation. The parties were dealing at arms length. The defendants were making the best bargain they could in their dealings with the plaintiff, and the plaintiff was making the best bargain he could with them, even inducing them, by his concealment of the condition of the company, to make the advances which they did, believing, as is argued by his counsel, that they were so deep in this enterprise that they could not withdraw. But the fact that they were in so deep and could not get out without loss was certainly no ground, as is claimed by counsel, which justified the plaintiff in claiming that they must necessarily go on, and that they were estopped from not putting additional money into the enterprise.

It is to be observed, in regard to the transaction of the 1st of May, 1890, that continuously thereafter, in all his intercourse with the defendants, there is no word of complaint in regard to that arrangement or agreement. The first time that the plaintiff made any complaint was on the 23d of June, 1890, when he wrote to the defendants that the transaction was forced on him ; Tod & Co. taking exceptions to the remark, and calling attention to the fact that it was an ordinary business transaction, in which they were both free agents, and at the time it was entered upon by the plaintiff he was confident that the stock acquired by him could be sold rapidly, at a good profit, to the syndicate he proposed to create in Louisville. And then the defendants called attention to the fact that they regretted that his expectations had been disappointed, but that they were amazed when he informed them that the land company was largely indebted, and that he must have known when he induced them and their associates to make the additional advances of money, etc. The plaintiff was at per-feet liberty to decline these negotiations, but he was fearful lest Tod & Co. should not exercise their option, and disaster result; and he used all his efforts to induce them to go further into the enterprise, and, if they desired additional profit, it is not uncommon practice among money lenders. If negotiations of this kind between grown-up men are to be set aside upon the ground that a man sells too cheap because he wants to realize the money, and the other man will not give him more for his property because he knows that he is in necessitous circumstances, commercial transactions might well cease, because it would be impossible to tell, when contracts were made, whether they would not be set aside upon the ground that one party had taken advantage of the other.

It is further urged that the notes given by the plaintiff to Tod & Go., dated September 9th, aggregating $70,533.47, were without consideration. But this claim is dependent upon the proposition that Tod & Co. were already bound to do everything which they did do on the 1st of May, 1890, and that agreements had been made between the plaintiff and the defendants, definite in their terms, bv which they were bound to exercise their option on the 1st of May, 1890, and to do various other things not necessary to specify. As already shown in the statement preceding this discussion, there is no evidence of any agreement entered into at the time of Northcote’s visit to Louisville. It was all tentative—propositions merely. It is true the plaintiff went on to prepare himself to carry out such an agreement, if entered into; but there is no evidence that any binding agreement was made in March, or at any time prior to the 1st of May, 1890, between these parties in respect of the matters which formed the subject of the agreement of that date. It is true the plaintiff speaks of agreements, but when he goes on to state what took place the evidence of agreement vanishes. It was simply his construction. It is inconceivable that in April they should be negotiating in regard to the terms of an agreement to be executed in May, if such an agreement had already been entered into verbally, and its terms were definitely understood. We find, as already stated, negotiations being had between these parties in April in reference to the form of agreement, and suggestions made by the plaintiff, in his own handwriting, as to what the agreement should contain. He seems to have come to New York in April for that purpose, and to have stayed some time. He then comes back in May, 1890, it being absolutely necessary for the safety of the enterprise that the defendants should exercise their option on the 1st; and then the bargain is made which is now impeached,—a bargain which resulted in the owing of the amount which" formed the basis of the notes. As an additional evidence of the fact that there had been no previous agreement, and that all that was done on the 1st of May was not without consideration, the fact appears that when Tod & Co. demanded their note for $50,000, which was agreed to be given, the plaintiff did not say he did not owe it, but simply that he could not pay it, and therefore he did not want to give the note.

It is further urged that the contracts of September 8, 1890, were void because the circumstances under which they were entered into amount to duress. What has already been stated upon the subject of duress in respect to the agreement of the 1st of May, 18.90,-is equally applicable to that of September 8, 1890. The plaintiff wanted $200,000. It was absolutely necessary for this enterprise that he should obtain that money, and he agreed to pay for it; and, to give pledges for its repayment, he put up his securities as collateral to this advance and to pay "the seventy-odd thousand dollars and a bonus of $50,000. As the court says, there is no question about the fact that this transaction was usurious, and that, so far as the interest and usury were concerned, no recovery could be had ; but the defendants could recover the $69,500 which the plaintiff owed to them growing out of the transaction of the 1st of May, 1890. The learned counsel for respondents claim that there was no usury in respect to this transaction,but it seems to us that it stands out upon the transaction as prominently as any agreement in it, and no proof of its existence is necessary but the agreement itself ; and that the defendants were so advised clearly appears by the evidence. The courts however, held that these transactions were not void for usury, because of the provision of the banking act applicable to this case; the defendants being private bankers, and the law, as it existed at the time of these transactions, exempting private bankers from forfeiture of principal on account of usury. That the act in question applied to private bankers seems to have been decided in the case of Perkins v. Smith, 116 N. Y. 444; 27 St. Rep. 541, and the learned counsel for the appellant admits that, if this decision of the second division of the court of appeals is conclusive upon this court, it is unnecessary to discuss it here ; but he submits, if this court can consider the question, that the act never could have been intended to apply to a mere private banker, but was .intended to apply to that class of bankers whose business is similar to that of national or state banks. In answer to this suggestion, we may say that, as we entirely approve of the decision of th'e second division of the court of appeals upon this point, we shall .deem it conclusive upon us. The language of the act seems to be too plain to admit of discussion. The judgment should be affirmed, with costs. All concur.


author: Cullen, J.

text:
    John Copcutt, Resp’t, v. City of Yonkers, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    1. Municipal Corporations—Local Improvements.
    A resolution of the common council, directing the laying out and opening of a street, is fatally defective, if it fails to specify according to which of two plans and descriptions, then on file in the city clerk’s office, the street is to be laid out.
    2. Same.
    This defect cannot be obviated by the action of the city clerk in thereafter attaching to the resolution a map not before the common council at the time of their action, nor by the paroi evidence of the aldermen as to which map they had in mind.

      3. Same.
    But such defect will not justify the interference of a court of equity.
    4. Same—Injunction.
    An improvement may he enjoined, at the suit of an owner of land assessed, as creating a cloud on his title, where other land henefltted is not included in the assessment district.
    Appeal from a judgment in favor of plaintiff.

      Ralph E. Prime, for resp’t.
   Cullen, J.

This is an appeal from a judgment of the special term enjoining the defendant from laying out and opening a street through a tract of land owned by the plaintiff, and from fixing a district of assessment for such improvement We agree with the special term that the resolution adopted by the common council directing the improvement is fatally defective, in failing to specify according to which of the two plans and descriptions then on file in the city clerk’s office the the street is to be laid out This defect could not be obviated by the action of the city clerk in thereafter attaching to the resolutions a map not before the common council at the time of their action, nor by the parol evidence of the aldermen as to what map they had in mind. The case in this respect wholly differs from that of Lyth v. City of Buffalo, 48 Hun, 175 ; 15 St. Rep. 477. But, granting this proposition, such defect did not justify the interference of a court of equity. Mooers v. Smedley, 6 Johns. Ch. 28; Mayor, etc., of Brooklyn v. Meserole, 26 Wend. 132; Guest v. City of Brooklyn, 69 N. Y. 506. The remedy must be had at law, and the objection can be raised in any legal proceedings taken to open a street.

But the objection to the district assessment presents a different question,—a question not free from doubt It appears that, some time past, the city constructed a sewer through the plaintiff’s land, and that the easement for such purpose was obtained by condemnation, the plaintiff being paid $10,000. The new street is laid out over the line of the sewer. By defendant’s charter (§ 2, chap. 184, tit. 7, Laws 1881), the expense of improvements of this character “shall be assessed and be a lien upon the property benefited thereby according to such benefit.” By section 4, same title, the common council is required, at the time of ordering any improvement, to fix a district of assessment for the expense of the improvement. The district fixed in this instance is confined wholly to plaintiff’s land, excluding from it some land that, under any practice that has come before us would form part of an assessment district. The improvement was ordered, not on the petition of the property owners, but by a unanimous vote of the aldermen, under a provision of a charter authorizing such action. On the trial of this action, it was proved by the evidence of the aldermen, and the trial court so found, that the fact of the previous award was stated at the meeting of the common council, and by the direct admission of some of the aldermen themselves that the action of the board in fixing the assessment district was based upon the ground that the plaintiff had already béen paid enough for his land, and that hence the assess-

ment should be wholly imposed upon him. That this action of the common counsel proceeded from improper considerations is unquestionable. What award that plaintiff should receive for the additional easement was, under the constitution, to be determined by commissioners or a jury. Under the statute, the assessment was to be levied according to benefit. The fixing of a district is as much a part of the assessment proceedings as the action of the assessors in apportioning the expense on the various lands within the assessment district Where the assessors adopt an erroneous rule in apportioning such expense, and fail to assess lands properly liable to assessment, the assessment is void; and, as sucli defect will not appear on the face of the proceeding, an action in equity would lie to restrain the creation of a cloud on plaintiff’s title. Clark v. Village of Dunkirk, 12 Hun, 181, affirmed 75 N. Y. 612. We do not see why the same rule should not apply in the case at bar. We assert no power in the court to review the discretion of the common council or a determination made by it in good faith under the powers confided to it by statute. ' But the power granted by the statute was to fix an assessment district according to benefits. This the common council has failed to do. It is very rarely that the fact that the common council in making its determination has not proceeded according to law can be proved; but when the fact is proven, we think redress against such action may be obtained.

The judgment appealed from should be affirmed, with costs.


text:
    Cora E. Bliven, App’lt, v. George H. Robinson et al., as Executors, etc., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    Contract—Cancellation.
    Where a contract is submitted to plaintiff’s husband, who is a lawyer, and executed by her in the form finally agreed upon with him, an action for its cancellation will not lie, in the absence of proof of fraudulent or dishonest representations made to induce her to sign it.
    Appeal from a judgment, dismissing the complaint on the merits.

      Edward M. Bliven (Alfred B. Cruikshank, of counsel), for app’lt; Thomas Darlington, for resp’t George H. Robinson; William B. Ellison, for resp’ts George W. Skellen and Frank W. Colwell.
   Cullen, J.

This is an appeal from a judgment dismissing plaintiffs complaint on the merits, entered on the decision of the special term. The plaintiff is the daughter of one Joseph Colwell, deceased, and one of the beneficiaries under his will. The defendants are executors of that will. At the time of his decease Col-well was a partner in business with one Hepworth. The agreement of copartnership provided that the death of either partner during the partnership term should not be deemed a dissolution of the partnership, but that the same should be continued by the surviving partner till the expiration of the term, for the benefit of himself and the wife and children of the deceased partner. By the will of Colwell his executors were directed to hold his residuary estate in trust in separate shares, the income thereof to be applied to his children during life, and upon the death of any child the principal of the share to go to nis issue. The defendants loaned the bulk of his residuary estate to Hepworth to carry on the partnership business, and Hepworth thereafter failed. At the time of these loans, or some of them, the plaintiff wrote letters to .and executed an agreement with the executors, which it is alleged that the defendants will set up as a justification for their action in proceedings for an accounting. This suit is brought to set aside and cancel such instruments on the ground of fraud.

It is first to be stated that a large part of the appellant’s argument is devoted to the discussion of questions that cannot be determined in this action. It is doubtless true that no action or assent by the equitable life tenant of the fund can bind the remainder-men. It is susceptible of grave doubt whether the beneficiary of the income of a trust fund, unassignable itself, can estop herself by her covenants or agreements. Whether the will or the agreement executed by plaintiff authorized the investment made by the executors may be debatable. But this action is not for an accounting against the executors, nor to determine the effect of the instruments executed by the plaintiff, but solely to cancel those instruments on the ground of fraud. The case, therefore, presents that single issue. We think the evidence justifies the trial court ■in its findings that no fraud was practiced upon the plaintiff. The plaintiff, at the time of the execution of the papers, was the wife of a lawyer,—the same lawyer who now brings this suit on her behalf. The important instrument, the agreement or release of May, 1885, was submitted to her husband, and its form amended by him. The husband said he told the plaintiff not to sign it, and the plaintiff says the same. But the plaintiff is unable to state whether the paper was brought to her for signature by her husband or by her brother, one o£> the executors and defendants. It is conceded that there were negotiations between plaintiff’s husband and the lawyer of the executors concerning this instrument, and the instrument was executed in the form finally agreed upon with the husband. The proof did not establish any fraudulent or dishonest misrepresentations made to the plaintiff for an inducement for her act, though there may have been immaterial inaccuracies in the statements to her. The interest of herself and her brother, one of the defendants, was identical. We therefore do not see that the plaintiff was imposed upon, and she must- stand by her acts, leaving their effect to be determined when the question may arise. The complaint was properly dismissed on the merits. It was not a case of a nonsuit The complaint was not dismissed because of a failure by plaintiff to produce proof in support of her claim sufficient to present a question of fact for determination. The court determined the questions of fact, and made findings of facts and law. That it decided the cause on the spot has no more legal effect than the rendition of a verdict by a jury without retiring. In either case, the question of fact is decided. The judgment and order denying motion to modify judgment appealed from should be affirmed, with costs.


text:
    In the Matter of the Probate of the Will of Myra Clark Gaines, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    Contempt—Stay on appeal.
    A proceeding for the distribution, under a will, of personalty in another state, where proceedings have been stayed pending an appeal, in this state, from a decision admitting the will to probate, is not a contempt of court.
    Motion to punish for contempt certain respondents in an appeal from the decree admitting a will to probate.

      John A. Grow (W. W. Goodrich, Belva A. Lockwood, and Isaac Sharp of counsel), for app’lts; T. W. Houston, for resp’ts William W. Christmas, Rhoda B. Kennedy, nee Christmas, James M. Christmas, William W. Whitney, Zulime Summers, nee Whitney, and Hattie L. Whitney; William T. Gilbert (J. W. Gilbert, of counsel), for resp’t Wilder.
   Cullen, J.

This is a motion made by the appellants at general term to punish certain of the respondents for contempt. Mrs. Gaines died a citizen of New York, domiciled in the county of Kings. Proceedings were instituted in that county for the probate of her will, and from a decree of the surrogate admitting the will to probate an appeal was taken to this court, which is still pending before us. Substantially the whole estate consisted of personalty in New Orleans, in the state of Louisiana. There had been litigation between the parties in that state, which it is unnecessary to recite further than to say that an alleged holographic will was there offered by appellants and rejected, and an administrator appointed. After the appeal had been taken from the degree of the surrogate of Kings county, some of the respondents, whom it is now sought to punish for contempt, applied to the courts of Louisiana for the distribution of the fund held there in accordance with the terms of the will proved here, which application was granted. The others received their shares under the distribution, but did not make application for the distribution. The affidavits presented on this motion and the opinion of the supreme court of Louisiana clearly show that that court knew the fact that an appeal was pending from the surrogate’s decree, and also the effect of such an appeal in staying proceedings. But, even if it were shown that the Louisiana court had been imposed upon, we are at a loss to see how that imposition could be a contempt of this court. This application must rest solely on the effect of the statutory stay of proceedings given by section 2582 of the Code. We think that the provisions of the Code can have no extraterritorial force, and can effect only proceedings in this state. It is true that by control of the person of a party a court of this state may, by.injunction, restrain his action in other jurisdictions; but this is not such a case. The assets distributed were .in the state of Louisiana, and were therefore solely under control of the courts of that state. The administrations in different states of a single estate are, as a matter of jurisdiction, entirely independent, and it is a mere matter of comity that treats the administration of the domicile as principal and the others as an ancillary. Williams, Ex'rs, 363, Story, Confl. Law, §§ 513, 518; In re Hughes, 95 N. Y. 55. It was a question of judicial discretion whether the courts of Louisiana would ever transmit the fund to this state. In re Hughes, supra. The tribunals of Louisiana being, therefore, the dominant arbiters of the distribution of a fund under their control, the stay given by the statute of this state did not deprive the respondents of the right to appeal to such tribunals for a determination of their rights to that fund. The motion should be denied, with $10 costs and disbursements. All concur.


text:
    Cordelia Armstrong, as Guardian, etc., Resp’t, v. Samuel Warren, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    Insurance—Mutual benefit—Beneficiaries.
    The beneficiaries in a mutual benefit insurance policy cannot be changed without the consent of the company.
    Appeal from a judgment in favor of plaintiff.

      James J. Allen, for app’lt., J. Mortimer Bill, for resp’t.
   Cullen, J.

This is an appeal from a judgment of the special term in favor of the plaintiff. The action was originally instituted against the Royal Arcanum to recover the amount of a benefit certificate payable, on the death of Horatio Forbes, to his two children, Madeline and Olive. The defendant conceded its liability on the certificate, but one Samuel Warren also claimed half of the fund as guardian of Mandoline Forbes. The fund was therefore paid into court, and Warren substituted as defendant. The claim of the plaintiff is based upon an indorsement made by the deceased upon the certificate in July prior to his death. This is in the form following:

“To Supt Secy. S. O. R. A: I herewith surrender and return to the supreme council of the Royal Arcanum the within benefit certificate No. 51,636, and direct that a new one be issued to me, payable to Cordelia Armstrong, as trustee for and guardian of my children, Madeline W. and Olive H. Forbes, residing at437 Lincoln avenue, Mt, Vernon, N. Y., related to me as sister.
“Horatio Forbes. [L. S.]
“Signed in presence of R M. J. Armstrong.”

After thé death of Horatio Forbes, the execution of this indorsement was proved by the subscribing witness, and the instrument recorded in the register’s office of Westchester county, where the deceased resided, on January 15, .1894. The defendant, Warren, was appointed general guardian of Madeline Forbes on November 23, 1893:

The first contention of the plaintiff is that the indorsement changed the beneficiary from the infants named in the certificate to herself, as trustee and guardian. Had this been an ordinary insurance policy, the deceased would have had no right to dispose of it. The title to the policy would have been in the children, to whom the insurance was payable. But the statute has modified this rule as to fraternal organizations. Where the designation of the beneficiary proceeds from the mere gift or bounty of the insured, his assent to a change of payee is not necessary. Laws 1892, c. 690, §238; Smith v. Nat. Ben. Society, 123 N. Y. 85; 33 St. Rep. 67. But this statute subjects this right of the insured to the qualification that the change shall be made upon the consent of the society in manner and form prescribed by its by-laws. Section 238, supra. There is no claim that the Royal Arcanum ever consented to a substitution of beneficiaries, or even had notice of the indorsement till after the decease of the insured. It follows, therefore, that there was no valid transfer of the insurance.

The second claim of the plaintiff is that the indorsement signed by the deceased constituted a valid, legal appointment of herself as guardian of the infants, and that the appointment of the defendant is superseded and void. We should be very loath to hold that this instrument, the sole intent of which was a contemplated change of the payees of the benefit certificate, could operate as a deed ap pointing a guardian. It is not necessary to determine the construction of this instrument. While the trial court found that the deceased duly executed this instrument, which might include a delivery, it also found, at the request of the defendant, that the certificate and endorsement remained in the possession of the deceased till his death. This latter finding must control, Traders' Nat. Bank v. Parker, 130 N. Y. 415; 42 St. Rep. 506, and in fact determines that there was no delivery of the instrument. To give the instrument vitality as a deed, it was necessary that it should have been delivered to the plaintiff, or for her benefit. Govin v. De Miranda, 76 Hun, 418 ; 59 St. Rep. 337.

The judgment appealed from should be. reversed, and a new trial ordered; costs to abide event.


author: Pryor, J.

text:
    Charles O. Bassett, App’lt and Resp’t, v. Thomas Henry French, Resp’t and App’lt.

      (New York Common Pleas, General Term,

      Filed January 7, 1895.)

    1. Damages—Master and Servant—Wrongful Discharge.
    In an action for the wrongful discharge of a servant, when the trial takes place before expiration of the stipulated term of employment the plaintiff can recover damages only to the time of the trial.
    3. Same.
    When, in such action, the defendant defaults in pleading, on the assessment of damages in the trial, plaintiff may recover damages to the time of the assessment, but not beyond.

      3. Same—Facts Admitted.
    If, upon such assessment, a partial defense in mitigation of damages he available to defendant (as to which, quaere), he may not introduce evidence of a fact admitted by his failure to answer.
    4. Same—Other Employment.
    A discharged servant is bound only to reasonable diligence in quest of other employment, and the cancellation of an engagement contracted after the discharge, if prudent and in good faith, is no breach of the obligation to the defendant master.
    5. Same—Cancellation op Contract.
    Having wrongfully refused to receive plaintiff in his service, defendant may not treat plaintiff’s sickness while in the employment of another, for which sickness plaintiff was not discharged by that other, as a canoe-1 lotion of defendant’s own contract with the plaintiff.
    Plaintiff appeals from part of the judgment on assessment of damages by the referee, and from an order denying a motion for alarger judgment. Defendant appeals from the whole judgment, and from an order denying a motion to set aside the report of the referee on the assessment of damages.

      Henry D. Hotchkiss, for pl’ff; A.J.Dittenhoefer, for def’t.
   Pryor, J.

The plaintiff had the option to sue either immediately on the renunciation of the contract by the defendant, or to wait the expiration of the stipulated period of service. In the latter alternative, clearly, the plaintiff could recover damages equivalent in amount to the salary for the entire term of services less actual or obtainable earnings in other employment. The period of service being past, no element of uncertainty or speculation could enter into the computation of damages. The stated salary would be the prima facie extent of recovery, and what plaintiff had or might have earned would be susceptible of definite ascertainment. The contingency of the termination of the employment by the death of either party, or of an unforeseen rise or fall in the value of the service after the discharge, would be out of the calculation. Nothing would be left to chance or conjecture.

But how is it if, as here, the action be brought and tried before the end of the term of employment ? How can the salary for the entire period be the apparent measure of damages? Either employer or employe may die the day after recovery of such salary, in which event, beyond question, the plaintiff would receive a compensation to which he has no title. Or the employe may be incapacitated for the service by physical or moral disability, in which event, again he would recover a compensation to which he has no right Then, too, the prima facie amount of damages— the sum of the agreed salary—is to be reduced by actual or available earnings. But how is allowance to be made for earnings as actual when they are altogether contingent and uncertain, or for potential earnings, which nobody can foresee, and which countless casualties may intercept? Equally, therefore, in reason and in equity, a servant wrongfully discharged must elect, at his peril, whether to sue immediately on breach of the contract, or at the expiration of the period of employment. If he covets the whole salary, less the requisite deductions, as the amount of his recompense, he must defer the trial until his damages may be ascertained with legal certainty. Or, if he be impatient for immediate indemnity, he must be content with such damages as are within the domain of calculable probabilities. The election is with him, and his should be the penalty of the choice. We are of opinion, therefore, that the learned referee proceeded upon sound principal in allowing plaintiff the salary, less earnings, to the end of the trial, and in disallowing all claim to damages subsequent to that period. Nor is any authorative adjudication adduced against the conclusion. The case at bar is distinguished from all others in the circumstance that here the trial was had and the damages assessed before the expiration of the stipulated period of service. In Solomon v. Valletta, 61 St. Rep. 683, the term ended Septenm ber 25, 1887, and the trial occurred December 1, 1888. Moreover, the action was for wages. But, apropos of the point in controversy, the court said (page 685, 61 St. Rep.) :

“If the action were for damages, the plaintiff could have recovered such damages as he could have shown he had sustained at the trial. * * * It is only in cases where the term of employment had expired at the time of the trial that the whole amount of wages for the whole term under the contract furnished, prima facia, the proper measure of damages.”

In Colburn v. Woodworth, 31 Barb. 381, 383, the question involved was of res adjudícala, but in enumerating the remedies open to a wrongfully discharged servant the court said :

“ Or, thirdly, he may wait until the termination ot the period for which he was hired, and claims as damages the wages agreed to be paid by the contract.”

In Howard v. Daly, 61 N. Y. 362, the trial occurred after the expiration of the - period of employment; and so the damages were, prima facia, the amount of the wages for the full term. Nothing in the opinion of the court authorized the inference that, had the trial taken place pending the term of service, the plaintiff might have recovered on the basis of wages not earned, and possibly never to'be earned. We concede the proposition that, in an action for breach of contract, loss subsequent to the trial may be compensated; but our position is that, although the amount of such loss may be uncertain, the fact of such loss must be certain. Wakeman v. W. & W. Manufacturing Co., 101 N. Y. 205; Bernstein v. Meech, 130 N. Y. 354, 359 ; 41 St. Rep. 700; Moss v. Tompkins, 69 Hun, 288; 53 St. Rep. 36. Here, as already shown, loss subsequent to the trial was contingent on so many unforeseen casualties in the future as to be incapable of legal proof. 130 N. Y. 359; 41 St. Rep. 700. In Schell v. Plumb, 55 N. Y. 592, so confidently cited by plaintiff, the damage after the trial was obvious and inevitable. While the plaintiff’s contention has the sanction neither of reason nor of adj udged cases, the defendant’s position, on the contrary, is supported, not only by unanswerable argument, but by the authority of the court of appeals:

“If the trial is before the expiration of the term the plaintiff is entitled to recover such actual damage as the evidence shows he has sustained up to the time of trial. * . * * Where the action.

is commenced during the term, but the trial occurs after the expiration of the term of service, the plaintiff may recover the same damages that he would have been entitled to recover, had the action been commenced after the expiration of the term.” Everson v. Powers, 89 N. Y. 527, 528.

This, to be sure, was dictum, merely ; but, having the concurrence of the entire court, with us it is persuasive, and, reinforced by other authority, is conclusive. 2 Suth. Dam. 471; Wood’s Mayne, Dam. 197; Wood, Mast. & Serv. 250; Van Winkle v. Satterfield, 58 Ark. 617, 25 S. W. 1113 ; Association v. Weidman, (Ill. Sup.) 28 N. E. 834 ; Davis v. Ayres, 9 Ala. 292 ; Martin v. Everett, 11 Ala. 375; Gordon v. Brewster, 7 Wis. 355.

It is argued that, since the plaintiff can have but one action for breach of the contract, if he may not now recover his total damage he will be remediless for the residue. But whose is the fault ? The answer is, his own ; in so precipitating the trial as to deprive himself of the complete reparation he might otherwise have realized.

Successful in his contention that he is not chargeable with damages accruing after trial, the defendant then asserts that, in legal •effect, the trial was as of the date of his default, and that so he is not answerable for loss suffered by plaintiff subsequent to the default. In this position we are unable to sustain him. By his default in pleading, the defendant admitted the traversable allegations of the complaint,—nothing more Thompson v. Lumley, 7 Daly, 74; but the averment of damage was not issuable, and yet was to be proved, though not denied Hackett v. Richards, 3 E. D. Smith, 13, 14. By failure to answer, the defendant did not concede plaintiff’s right to the relief demanded, but only his title to such damages as might be recovered upon the allegations of the complaint. Argall v. Pitts, 78 N. Y. 239, 243. The judgment •entered on the default was interlocutory merely, and before final judgment for more than :a nominal sum an intermediate assessment of damages was indispensable. Code Civ. Proc. §§ 1214, 1215. Upon such assessment the defendant was entitled to,appear, and challenge the amount of recovery, even by affirmative evidence, in diminution of damages. Thompson v. Lumley, 7 Daly, 74, 80. Only upon the ascertainment of the damages by judicial action, whether by the court or a referee or a writ of inquiry, could final judgment be rendered in favor of the plaintiff. Code, § 1215. Indisputably, then, the assessment of damages was a trial, and the only trial possible, in default of an answer. If the default were a concession of the amount of damages, then perhaps damages after the^ default would not be recoverable; but as the default was an admission only of plaintiff’s title to some damages Bullard v. Sherwood, 85 N. Y. 253, the extent of which was yet to be ascertained, the amount of damages recoverable was the amount shown to have been sustained at the time of the trial of the question. Otherwise, in every case the right to complete reparation, whether for tort or breach of contract, would be defeated by the defendant’s failure to answer; and thus a confessed wrongdoer would, enjoy an immunity withheld from him who denies the •delict, and makes defense. ■ It is answered that, if this be so, then a plaintiff, by delaying judgment on the default, may enhance his. damages, whereas the law requires him to diminish them. Conceding the validity of the, argument, it only shows a dilemma from which either the wrongdoer or the injured party must suffer,—the former, by making full recompense for his wrong; and the latter,, by submitting to an inadequate reparation,—and surely the law will not be alert to rescue the wrongdoer from the consequences of his misconduct, and to deny the injured party his rightful redress. But is not the grievance urged by the defendant imaginary ?' Why might not he, upon his default, apply to the court for an assessment of damages ? Nothing in the Code forbids it, and, by-recognizing his right to contest the assessment (§ 1219), it seems to imply his right to become an actor in the proceeding. In any event, if the hardship exist, it is not so great as the defendant may suffer from the exercise of the conceded right of the plaintiff,, namely, to rest upon the wrong till the end of the term of service, and then recover damages for the entire period ; and, if such delay to sue be not an inadmissible aggravation of damages, how, whén an action is promptly instituted, can a mere dilatory assessment, be a bar to the recovery of full satisfaction ? The argument of the learned counsel for the defendant is ingenious and plausible, but it proceeds upon a fallacy, and is supported by cases to which, the present bears an imperfect analogy.

After the cancellation of his engagement by the defendant,. - plaintiff took service with Hasham; but, fearing that Hasham would likely not pay him, he hired himself to Duff. While in the employment of Duff, plaintiff suspended singing for two weeks on account of a cold; and defendant contends that he was released from after liability, because, “ had he remained with the defend-. ant, he could not have recovered against the defendant beyond the time he became sick.” Formally stated, the argument is: If plaintiff had been in defendant’s service, and had fallen ill, the defendant might have canceled the engagement; therefore, as he caught cold in Duff’s service, the defendant is discharged from further liability. But the sickness of a servant does not, ipso facto, end his engagement; it only gives the employer an option to cancel it; and he may continue it, if his interests so suggest, and the other assent The undisputed fact is that the employment with Duff was not terminated by the plaintiff’s indisposition, and suspension of work for Duff is not the legal equivalent of the cancellation of the contract with the defendant. Suppose the plaintiff had been unable to obtain other employment after his dismissal by the defendant. Would a casual indisposition during his en-. forced idleness have absolved defendant from the consequences of his breach of contract? In the actual case, the position of the defendant is still more untenable. Having broken his contract by refusing to receive the plaintiff in his service, he asserts a privilege open to him only had he kept his contract and employed the plaintiff,, namely,-a benefit equivalent to the discharge of-the plaintiff for inability to render the service. “ This would contravene the fundamental maxim of the law that no man shall take advantage of his own wrong.” Hard v. Seeley, 47 Barb. 428, 434; Newton v. Porter, 5 Lans. 416. Explicitly in point against dedefendant’s contention is Cuckson v. Stones, 28 Law J. Q. B. 25, 1 El. & El. 248.

The defendant challenges the judgment upon the further ground that the referee erred in refusing to reduce the damages by an allowance for wages the plaintiff should have earned in other employment. The burden was on the defendant to prove that the plaintiff did obtain or might have obtained other employment. Howard v. Daly, 61 N. Y. 362; Thompson v. Wood, 1 Hilt 93 ; and cases cited collected in note to Decamp v. Hewitt, 43 Am. Dec. 213. A reduction of damages on account of other employment is a partial defense, and must be pleaded. Code, § 536. Upon an assessment of damages, matter in reduction of damages, constituting a partial defense, may not be proved. Ford v. David, 1 Bosw. 570. True, the Code (§ 536, last clause) allows such evidence upon an assessment, but apparently in actions only for breach of promise to marry, or for personal injury, or an injury to property. "Assuming, however, the compency of the evidence in this case, we are of opinion that the referee rightly disallowed the rejected charges against the plaintiff. He was bound only to reasonable diligence in quest of other employment,' Gillis v. Space, 33 Barb. 177; Farrell v. School Dist. 98 Mich. 43; Howard v. Daly, 61 N. Y. 362, and the proof is that he fulfilled the obligation. Having credited defendant with every dollar he actually received, he is not responsible for money he earned, but could not collect Toplitz v. Ullman, 49 St. Rep. 226. He was not bound to continue in an employment, of which the reward was precarious; and he acted with provident foresight, as well for the defendant as himself, in canceling both the Tavary and Duff engagements. He did not loiter a moment in willful or inexcusable idleness, and he judiciously availed himself of every opportunity to earn the utmost, money by vigilant enterprise. What more could be required of him ? The suggestion of a relation of suretyship between himself and the defendant, binding him to the umberrima fides, is preposterous. It is countenanced by no authority. It stands upon no reason. It exacts the sacrifice of the innocent victim, and secures-the wrongdoer against the consequences of his delinquency. Without further discussion, we are content with the disposition of the point in the argument of the learned referee.

But a single exception in the case may be supposed to require notice, and that is to the rejection of a tender of evidence. The object of the offer, says the learned counsel in his brief, “ was to show that the defendant had the right to terminate the contract at any time, for any cause, on the payment to plaintiff of one week’s salary,” What was this but proffer of proof of a defense to the action ? By his failure to answer, the defendant admitted the wrongful breach of the contract, and, upon the assessment, was restricted to proof merely in mitigation of damages. For this purpose the evidence was inadmissible. Thompson v. Lumley, 7 Daly, 74, 83; Allen v. Maronne (Tenn.), 26 S. W. 113 ; Watson v. Russell, 58 St. Rep. 373. The evidence was rightly rejected, too, because purporting a parol contradiction of a written agreement, which, by unequivocal language, makes special provision for the termination of the contract

From the damages claimed by plaintiff, deduction must be made for his two weeks’disability. Judgment reduced by $300 and, so modified affirmed, without costs to either party.

All concur.


text:
    Patrick B. McEntyre, App’lt, v. Clarence Tucker, Resp’t.

      (New York Common Pleas, General Term,

      Filed December 7, 1894.)

    1. Contracts—Building—Architect’s certificate.
    Pacts constituting a waiver of the architect’s certificate in a building-contract.
    3. Same—Inferences.
    When the uncontroverted evidence requires an inference of such waiver, it is legal error to draw the contrary inference.
    '3. Appeal—Exceptions.
    An exception to a finding of fact without proof presents the points of legal error in the finding.
    Appeal from a judgment dismissing the complaint.

      A. B. Cruikshank, for app’lt; Dill, Seymour & Kellogg, for resp’t.
   Pryor, J.

The action is to recover an unpaid balance of a bill for the construction of a house and stable. The complaint was dismissed on the plaintiff’s own proof. The defendant assumes that the questions of law and the fact in controversy were adjudicated by the reversal of the judgment against him on a previous trial of the actions. McEntyre v. Tucker, 54 St. Rep. 826. He is mistaken. The evidence now under review is not the evidence on which the former judgment proceeded; and the facts now found by the referee are not identical with -the facts in his previous report To the rules of law before enunciated we adhere; but whether those rules are prevalent in the case as now presented is the very point for determination. As on the former appeal, we are still precluded from a review of the evidence by the absence of any request for a finding of fact McEntyre v. Tucker, 54 St. Rep. 826. But an exception to a finding unsupported by proof raises a question of law. Code, §993; Hugg v. Shank, 23 St. Rep. 342.

The complaint was dismissed upon two grounds: First, failure of proof of performance in fulfillment of the contract; and, second, failure to furnish the architect’s certificate. The referee found non-performance as a fact, as well as a conclusion of law; and to both the record exhibits an exception. The law required simply a substantial performance of the contract. Crouch v. Gutmann, 134 N. Y. 45; 45 St. Rep. 470; and from the uncontroverted evidence the conclusion is inevitable that the plaintiff discharged his legal obligation. Nay, more, in fact the defendant admitted the fact; for, when plaintiff presented his bill, the defendant not only omitted objection to the sufficiency of the work, but, in avoidance of present payment, pleaded inability, and promised to settle the coming week. But it is not upon this ground that the •defendant essays to uphold the judgment. His reliance is on the failure to furnish the architect’s certificate. It is not to be gainsaid that, by the terms of the contract, a certificate was a condition precedent to payment. Certificates were presented, but they • were signed, “Geo. A. Freeman, Jr., by W. Holman Smith.” Freeman was the architect, and Smith his assistant; and respondent’s position is that the latter’s certificate was ineffectual to entitle plaintiff to payment. Upon the uncontradicted proof, these facts appear: That, to the knowledge and with the acquiescence of the defendant, Freeman substituted Smith for himself in the preparation of the specifications and the superintendence of the building; that Freeman was never on the premises, and never saw the work; that Freeman authorized Smith to issue certificates; that the defendant, after the contract, never met Freeman, and conducted all the business with Smith; that the extra work was planned and executed by Smith; that, when Smith proposed to furnish the final certificate, defendant made no objection to its issuance by him, but only solicited delay; that other certificates issued by Smith had been accepted and paid by defendant; and that when the last installment was due, defendant accepted Smith’s certificate from plaintiff, without objection, and promised to settle next week. Nor is this all. By the seventh paragraph of the contract, the plaintiff was required to permit any person appointed by the architect to inspect the work, plainly'evincing that, from the begining, a substitute for Freeman was in the contemplation of the parties. That defendant could waive the condition of a certificate from Freeman, and accept, instead, a certificate from Smith, is, of course, an indisputable proposition of law. That he did so waive the provision for certificates from Freeman, and assent, instead, to certificates from Smith, is the clear conclusion of reason and justice. If it be objected that the facts showing performance of the contract and waiver of the certificate depend for proof on the testimony of the plaintiff, the answer is that his evidence is corroborated by Smith; that the omission of the defendant to contradict it gives it additional strength. Schwier v. N. Y. C. & H. R. Railroad Co., 90 N. Y. 558, 564; and that, “the mere fact that the sole evidence as to a material fact is the testimony of a party, where there is no conflict in the evidence or circumstances from which an inference against the fact can be drawn, does not require the submission of the question to the jury.” Kelly v. Burroughs, 102 N. Y. 93.

An exception duly presents the question of the legal validity of the finding against a waiver of the architect’s certificate; and we are of the opinion that, in so finding, the learned referee fell into error.

• Judgment reversed, and new trial ordered; costs to abide the event. Order of reference discharged. All concur.