text:
    The People ex rel. Oakley, Resp’t, v. Frederick W. Bleckwenn, Treas., etc., of Long Island City, App’lt.

      (Court of Appeals,

      Filed April 28, 1891.)

    Municipal corporations — Assessments — Improvement certificates —Laws 1874, Chap. 336—Long Island City.
    Redemption from a sale for assessments under chapter 336, Laws 1874, may be made in improvement certificates issued under that act to the amount of the assessment and interest.
    (Earl, J., dissents.)
    Appeal from judgment of the supreme court, general term, second department, affirming order granting motion for a peremptory writ of mandamus.

      George W. Stephens, for app’lt; Joseph H. Choate, for resp’t.
   Gray, J.

In order to pay the contractors and all expenses of improving a large district of Long Island City, the commissioners, appointed for that purpose, were authorized by chapter 826 of the Laws of 1874 to issue what were known as “ Improvement Certificates in Long Island City.” The act provided that the assessments made thereunder for improvements should become a lien upon the lands affected; but allowed a period of ten years to elapse before proceedings could be taken to enforce collection or payment. The certificates so issued were made “ receivable at all times at par and accrued interest in payment of any assessment,” and, when so received, they were to be retired and cancelled. In the same act it was also provided that after the expiration of the ten years from the filing of the assessment roll the lands upon which the assessments remained unpaid should be sold; and that the proceedings for and upon a sale should be after the manner prescribed by the law at the time for the sale of lands in said city for non-payment of city taxes. Provision was made in the section authorizing such sales that the lands “ may be redeemed, and in default of such redemption title thereto should be given and perfected in the same manner, to the same extent and with the same force and effect ” as in the case of sales for non-payment of city taxes.

By a later act (chapter 501, Laws of 1879), the time for the running of assessments was reduced to eight years; and this provision was also added to the law : namely, that at sales “ it shall be the duty of the officer making such sale to receive the improvement certificates * * * at par and accrued interest in payment of the assessment.” The relator’s lands were sold for non-payment of these assessments, and, within the period of time allowed for redemption, a tender was made on her behalf to the appellant, the city treasurer, of the sum required by law in order to redeem the premises; but it was made in these improvement certificates. The appellant refused to receive them, and demanded payment in cash. This proceeding was thereupon instituted to compel him to receive payment in the manner in which it was offered to he made.

The appellant’s position is that he was not authorized by law to receive anything but cash upon a redemption, and the argument-in his behalf is, or must be substantially, based upon two propositions. In the first place, it is contended that the tax sale and the payment by the purchaser paid and extinguished the assessment for the satisfaction of which the statute authorized these certificates to be received, and the law contained no provision that payment in that mode might be made in redemption of the lands sold. In the second place, the proposition is that the law in force at the time of the sales and which regulated the proceedings for sales of lands for non-payment of city taxes and for redemption therefrom, contained the rules for the conduct of proceedings to enforce collection under the act of 1874, and no redemption under its terms could be made except by a payment in money. The act referred to was chapter 656 of the Laws of 1886 ; which was passed in relation to the collection of unpaid taxes and assessments in Long Island City; and stress is laid, with respect to the owner’s right to redeem, upon certain language of that act, that he can only redeem “ by paying the said treasurer for the use of the purchaser, * * * the sum mentioned in the certificate given to him.” This is construed to import, if not to direct, a payment in cash to the purchaser’s 'use.

I do not think there can be a reasonable doubt as to what is the proper construction to be given to the terms of the act of 1874; but if there be such a doubt, then I think it one which should be resolved in favor of the construction claimed by the respondent. The question relates to the remedy which the legislature has provided for the enforcement of the payment of the assessment, and it concerns the rights of the owner of the lands, as well as those of their purchaser at the sale. It being claimed that the statute is not explicit in its provisions upon' that head, consideration should be given to its general tenor and to the intention and purposes underlying its enactment. If, by so doing, there is anything disclosed, either from the language itself, or by way of a just inference from the language, we should resort to such an aid in the work of construction. The best interpretation of a law is that which harmonizes its structure with the purpose and intention of its enactment.

It is very clear from the act of 1874, authorizing the improvements in Long Island City, and it is the fact in proof, that those improvements were upon an extensive scale and were intended to reclaim low lying, marsh lands; The provisions of the law with respect to the manner of payment of the contractors, who should undertake the work, and the unusual delay allowed to property owners for the discharge of their liability for the assessments levied for the work, seem to evidence an intention of the legislature that the burden of the great cost should rest as lightly as it could be imposed. The contractors were to receive their payment, not in money, but in certificates, issued by the commissioners at par and bearing only seven per cent interest; while the assessment liens carried ten per cent interest. The certificates equalled the amount of the assessments for the work, and they would induce purchase by the property owners and especially so if the price was less than par; for the lien of the assessment could be discharged through that medium of payment. Obviously, only parties possessed of ample financial means, or in good credit, could contract for the work, and presumably they would arrange their prices on such a scale as that the certificates taken at par would, nevertheless, eventually compensate them if offered in the market at a price less than par. Then the property owners, whose lands were burdened with the cost of the work, were given ten (afterwards reduced to eight) years from the time the lien accrued within which to pay it off, and though the interest running upon the unpaid assessment was at the annual rate of ten per cent, the certificates, which carried interest at only seven per cent, could be used in making payment. Of course, all such evidences of a consideration shown by the legislature for the property owners in the district to be improved thus extensively could not avail if, by plain direction- or by irresistible inference, the use of improvement certificates, as mediums of payments for the redemption by the owner of his property after its sale was prohibited by the law.

But where the way is open for the court to determine what the legislature intended should be the limitation upon the availability of these certificates, the evidence of an intention that the property owner shall be treated with every indulgence should incline us to give that construction which most favors and protects his rights. Judge Dillon, in his work on Municipal Corporations, deduces the principle, § 822: “ The right of the owner to redeem from sales for assessments is favorably regarded by the courts, and the statutes giving or extending this right are liberally construed.”

If we hold that these certificates are a good tender, in redemption of property sold for unpaid assessments, we carry into further effect the indulgent purpose of the legislature, and what do we encounter in so doing ? Is the provision of the act of 1879, which makes it the duty of the selling officer to receive the certificates in payment of the assessments for which the sales are made, as the appellant argues, a legislative construction of the law that no authority exists for the receipt of certificates after the sale has been made ? I cannot think so, and such a conclusion is not compelled. As the law stood, under the act of 1874, it was open to doubt as to whether, upon a sale of property, for arrears of assessments, anything could be paid in by the purchaser e-xcept the currency of the country. The legislature settled that doubt (and thereby further evidenced its benevolence of purpose) by expressly authorizing the use of the improvement certificates in making payments at the sales. If, therefore, the act of 1879 does not limit or control the construction of the provisions in the act of 1874 that these improvement certificates “shall be receivable at all times at par and accrued interest in payment of any assessment, etc.,” do we find any objection to their use, for the purposes of redemption after sales, from the incorporation in the act of 1874 of those provisions of the act of 1886 which prescribe the proceedings for and upon sales and the manner of redemption ? This naturally brings us to the consideration of what I deem an important question in the case. What is the effect of the sale for unpaid assessments, whether as it concerns the property owner, the municipality, or the purchaser ? The act of 1886 regulated the mode of procedure by which the municipality might sell lands assessed for taxes and assessments upon the neglect of their owners to. discharge their liability therefor, and prescribed the terms upon which, within eighteen months after the sale, the property owner might redeem. It was passed in relation to the general city taxes; but being the law in force for that purpose, at the time when the sales under this special law of 1874 were to be made, its provisions were controlling upon the procedure to be adopted therefor, and equally so upon the manner in which the privilege of redemption was extended and might be availed'of by the property owner. But it had no other force, nor was of other pertinence, than as an act of procedure. So far as the act of 1874 conferred especial rights and privileges upon the owners of lands assessed and sold, this act of 1886 did not purport to, nor by the terms of the special act could, touch them. By the special law improvement certificates were made at all limes receivable in payment of assessments. How the assessment liens, to discharge which these certificates were available, continued such after a sale and until that sale was consummated by the deed or lease of the municipality. There is a significant provision in the ninth section of the act of 1886, to the effect that after the conveyance is executed to the grantee, upon the failure to redeem, “ the lien or liens, for which the same shall have been so sold, shall thereupon be can-celled.” The caption of the act of 1886 states that if is “in relation to unpaid taxes, etc., and to collect the same and to insure a more efficient collection of the same in the future.” Such language indicates, or intimates, just what must have been considered by the legislature, and what we should hold to be the effect of the assessment sale; namely, that the sale is merely a mode of enforcement of the payment of the assessment. The purchaser at a tax sale has only acquired the lien of the municipality. He is the assignee, in effect, of the assessment lien and is thus protected as to his payment until his inchoate rights are consummated by the execution of his deed or lease. As to the owner of the land it is a step taken to enforce, the collection of the assessment and a proceeding which will result in divesting him of his ownership, unless he avails himself of the privilege of redemption.

.The counsel for the respondents also directs our attention to the remark of Judge Oooley in his work on Taxation, 500, where he says the sale is made by way of enforcing the duty which a person owes to the public. This court in the case of Clementi v. Jackson, 92 N. Y., 591, and recently in its second division, in the case of McFarlaneY. City of Brooklyn, 122 N. Y., 589 ; 34 N. Y. State Rep., 551, has regarded a sale for unpaid taxes as a mode of enforcement of the city lien for taxes: In the cases of Williams v. Townsend, 31 N. Y., 411, and of Clementi v. Jackson, supra, the expressions in the opinions are unmistakable as to the effect of the sale upon the assessment lien upon property. In the former case, Judge Davis holds that it is “ merely an assignment of the lien of the tax ' * * * and this lien continues till the owner makes the redemption, or the holder of the certificate takes title to the property in the prescribed form. It is therefore clear that the tax or assessment is not discharged by the sale and certificate.” In Clementi v. Jackson, Judge Rapallo held that the payments made by a purchaser at a tax sale were not payments of the taxes. He said: “ The payments made by him were no more a payment of the taxes than would a payment made by an assignee to an assignor.of a bond, in consideration of the assignment thereof, be a payment of the bond." Upon authority, therefore, as upon principle, we should hold that in this case the assessment liens still remained upon the land, after the sale, undischarged and, consequently, the usefulness of the improvement certificates to the property owner, as a medium of payment in redemption, continued unimpaired. The municipality is not prejudiced by such a construction, for it has been satisfied and has parted with its lien. The purchaser having paid, as in this case, his bid in certificates, of course, is not prejudiced. As matter of fact, it appears that upon all of the sales made under the act of 1874, payments have been made in improvement certificates. It is altogether most unlikely that they would be made otherwise, and intending purchasers at such sales would be careful to avail themselves of this medium of payment, which could be obtained from the contractors, or other holders, at prices much less than their par value. That competition at sales might he affected, or limited to those who possessed certificates with which to make payment, should not affect the question.

The operation of a law cannot be affected by some imagined or possible result of its workings, in some collateral direction. Besides, the plan of the statute was not to promote a market for the lands, when sold for unpaid assessments, but rather to provide for a substitute for money generally available as a medium of payment to all affected by or interested in the performance of the work; which should he elastic enough to serve in payment of the contractors in the first place and to be receivable at all times in discharge of assessment liens and upon sales in enforcement of such liens.

The order appealed from should be affirmed and the writ of mandamus issue as ordered at the special term of the supreme court, with costs to the respondent of this appeal

All concur, except Andrews, J., not voting, and Earl, J., dis-

       Affirming 35 N. Y. State Rep., 646.


source: Caselaw Access Project

author: Mem.

license: Public Domain

text:
    Rosalie A. Oakley et al., Resp’ts, v. Frederick W. Bleckwenn, Treasurer, etc., et al., App’lts.

      (Court of Appeals,

      Filed April 28, 1891.)

      George W. Stephens and J. Langdon Ward, for app’lts ; Joseph H. Choate, for resp’ts.

       Affirming 35 N. Y. State Rep., 647.

   Mem.

The question in this case is the same as that decided by us in case of The People ex rel. Oakley v. Bleckwenn, upon the argument of which this appeal was submitted.

The judgment here appealed from should, therefore, be affirmed, with costs to the respondents.

All concur, exeept Andrews,'J., not voting, and Earl, J., dissenting.


author: Per Curiam.

text:
    The People ex rel. The New York Underground Railway Co., App’lt, v. John Newton, Commissioner of Public Works, et al., Resp’ts.

      (Court of Appeals,

      Filed April 28, 1891.)

    Mandamus—When granting of, disceetionaby.
    Relator having bought in the property and franchises of another underground railway company at a foreclosure sale, took no proceedings toward actual construction of the road for twenty years after its incorporation, and then asked for an alternative writ of mandamus to compel the commission r of public works to grant a permit to use the streets for the construction of its roid return was made that an action had been begun in the supreme court by the People to dissolve the relator and vacate its charter; and at tlie close of the trial of the issues a motion was made for a peremptory writ. In the action to annul the charter, the People asking for an injunction to stay this proceeding, it was refused upon stipulation of relator that it would not apply to open the streets under the permit which might be obtained through the mandamus until the People’s action had been determined. Held, that under the circumstances the granting of the peremptory writ was discretionary.
    Appeal from- judgment of tlie New York superior court, general term, affirming order and adjudication of special term after a verdict, refusing to grant a writ of mandamus to compel the commissioner of public works to allow relator to construct its road through certain streets.

      Edward Winslow Paige and George Hoadley, for app’lt; D. J. Dean, for resp’ts.

       See 34 N. Y. State Rep., 684.

   Per Curiam.

The relator claims to have derived title under foreclosure proceedings to the property and franchises of the New York City Central Underground Eailway Company, which was incorporated by the act, chapter 230 of the Laws of 1868; and no proceedings, so far as this record discloses, having before been taken for the actual construction of the road, authorized by the act, in May, 1888, twenty years after the pas- ■ sage of the act, it applied to the superior court by petition for an alternative writ of mandamus to compel the commissioner of public works to issue to it a permit to enter upon the streets along its route for the purpose of commencing the construction of its road. The alternative writ was issued, and the return to it was made, and, subsequently, before the trial of the issues raised by the return, the defendants filed a further supplemental return, in which they alleged that on the 14th day of January, 1890, an action was commenced in the supreme court by the People against the relator through the attorney-general by leave of the court to dissolve the relator, to vacate its charter and to annul its corporate existence. A copy of the complaint in that action was annexed to the return and made a part thereof, and the defendants averred upon information and belief that the facts alleged in that complaint were true. The issues raised by the two returns to the writ were brought to trial in the superior court before a jury, and at the close of the evidence the court directed the jury to find certain facts, and thereafter, upon the writ, the returns and the finding of the jury, a motion was made at a special term for a peremptory writ of mandamus, which was denied, and the appeal here is from the order of the general term affirming the action of the special term, which denied the writ.

At the time the peremptory writ was applied for, the action brought by the People to dissolve the relator, to vacate its charter and annul its corporate existence was pending, and in that action, as we learn from the statement in the points submitted on behalf of the relator, counsel for the People applied to the court for an injunction to stay this proceeding, and the court denied that motion upon the stipulation of the relator that it would not apply to open the streets under the permit which might be obtained through the mandamus in this proceeding until the People’s action had been defeated.

Under such circumstances it was, at least, discretionary whether or not the court would issue the peremptory writ of mandamus. It would certainly have been an unwise and inconsiderate exercise of discretion for the court to issue the mandamus during the pendency of that action aimed at the life of the corporation. In case of the success of the People in that action the writ of mandamus could serve no purpose and would be abortive. Certainly, in the face of the stipulation that no permit should issue until the determination of that action, the court should not at the time this writ was denied have granted it. A decision to grant the writ would have been simply experimental, and that under such circumstances the court could, and in the exercise of a sound discretion, should have denied the writ, is clear upon authority. Matter of Sage, 70 N. Y., 220; People ex rel. Slavin v. Wendell, 71 id., 171; People ex rel. Faile, 76 id., 326; People ex rel. Gas Light Co. v. Common Council, 78 id., 56; People ex rel. Millard v. Chapin, 104 id., 96 ; 5 N. Y. State Rep., 588; People ex rel. Nicholl v. N. Y. Infant Asylum, 122 N. Y., 190; 33 N. Y. State Rep., 296.

As we have no jurisdiction to review the discretion of the court below, the appeal should be dismissed, with costs.

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


text:
    The Mayor, etc., of New York, Resp’t, v. The National Broadway Bank of the City of New York, App’lt.

      (Court of Appeals,

      Wiled May 5, 1891.)

    Municipal corporation—New York city—Interest on funds in bank
    Chap. 623, Laws 1866, directing the banks in which the public funds of the city and county of New York were deposited to pay proportionately the expenses of the chamberlain’s office, although it did not direct him to collect interest on such deposits, did not prevent him from stipulating with such banks for the payment of interest thereon, and if he could make such an arrangement ana failed to do so he would have been derelict in the discharge of his duty as a public officer.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment for plaintiff recovered on trial before the court without a jury.

      Thomas Allison, for app’lt; Simon Sterne, for resp’t.
   Per Curiam.

The opinions below are so thorough and satisfactory that we can, with propriety, rest the affirmance of this judgment upon them. We will, however, simply state our conclusions :

(1) There is no fair question or dispute upon the evidence that the defendant made the alleged agreement to pay four per cent for the deposits, and even if some erroneous evidence was received tending to establish such agreement, it was harmless to the defendant, as other evidence undoubtedly legal and competent conclusively established the agreement.
(2) The act of 1866 did not prohibit the chamberlain from making such an agreement, and it was not illegal or immoral or against public policy. Therefore, even if he, acting for and on behalf of the city, exceeded his power in making it, the defendant having received the benefit of it was bound by it, and cannot be permitted to aver its invalidity. But, it cannot be said that the chamberlain did not have power to make the argeement for the payment of interest. He was the custodian of the funds of the city and was bound to deposit them in some bank, and if he could make an arrangement by which they should earn some interest for the benefit of the city, we can see no reason to doubt that he had ample authority to do so. Indeed, if he could deposit these moneys safely to be drawn upon demand when needed, and obtain, what was not unusual in such cases, interest upon such deposits, and he failed to make an arrangement for obtaining such interest, he would have been derelict in the discharge of his duty as an officer of the local government.

The judgment should be affirmed, with costs.

All concur.

       Affirming 31 N. Y. State Rep., 803.


author: Andrews, J.

text:
    The People ex rel. John L. Cook et al., App’lts, v. Egbert H. Hildreth et al., Resp’ts.

      (Court of Areals,

      Filed May 5, 1891.)

    1. Highways—Appeal prom order op commissioners laying out road— Certiorari—Code Civ. Pro., § 3125.
    The bringing of an appeal from the order of commissioners laying out a highway does not suspend the running of the statute of limitations contained in § 2125, Code Civ. Pro., requiring that a writ of certiorari to review such determination be brought within four months after it becomes Dinümg on the relator or the person whom he represents.

      2. Same.
    There is nothing to prevent a relator from taking both an appeal from an order of the commissioners and suing out a certiorari at the same time, and pursuing both remedies concurrently.
    Appeal from judgment of the supreme court, general term, second department, affirming order of commissioners laying put a highway.

      B. K. Payne, for app’lts; E. A. Carpenter, for resp’ts.
   Andrews, J.

Section 2125 of the Code of Civil Procedure requires that a writ of certiorari to review a determination must "be granted and served within four calendar months after the determination "becomes binding upon the relator or the person whom he represents, except where the relator or his representative is under some one or more of the disabilities specified in § 2126.

The determination of the commissioners laying out the highway, sought to be reviewed by the certiorari in this case, was made, recorded and posted April 30, 1887. The writ of certiorari was not issued until April 24, 1888, and not served until May 4, 1888. The relators were under none of the disabilities specified in § 2126, and the application for the writ not having been made until nearly a year after the order of the commissioners had been made, the statute would seem to be a complete defense to this proceeding.

But the relators rely upon certain subsequent proceedings which, as is claimed, suspended during their pendency the running of the statute. On the 3rd day of June, 1887, an appeal was taken by the relators from the order of the commissioners, and referees were duly appointed pursuant to the statute, who on the 29th day of March, 1888, made their decision, affirming the order of the commissioners laying out the highway. It is claimed that an appeal suspends the power of the commissioners, and that until their acts are affirmed they cannot open the road, and such is the rule. Clark v. Phelps, 4 Cow., 190. Upon this the further claim is based that the order of the commissioners laying out the road did not become “ final and binding upon the relators ” until the appeal was determined, and that in counting the time given for the granting of the writ of certiorari, the period during which the appeal was pending should be deducted. This claim is, we think, inadmissible. The order made by the commissioners was a final order. It was binding upon the relators and upon every person so long as it remained unreversed, provided the commissioners had jurisdiction.

The questions presented for determination upon an appeal from an order of commissioners and those brought up by a writ of certiorari are not the same. There is in a general sense the distinction which exists between a review by courts of questions of fact and law. The statute authorizes an appeal in order that there may be a reconsideration by another tribunal of the merits of •the application for laying out a highway, in the nature of a review of the action of the commissioners. The referees may consider the question of the necessity of the proposed highway, whether it is required by the public interests and all circumstances bearing upon the expediency of laying it out, and they may reverse or affirm the action of the commissioners as in their judgment they may determine. They are confined to the examination of the case on the merits, and they are to proceed upon the assumption that the order of the commissioners is valid. Commissioners v. The Judges of Orange County, 13 Wend., 432; People v. Judges of Suffolk County, 24 id., 249; People ex rel. Hubbard v. Harris, 63 N. Y., 391.

The office of a writ of certiorari is quite different. The scope of the writ and the questions which may be determined thereon are defined by the statute. Sec. 214Q. The statute has extended the operation of the writ beyond what it had at common law. Not only may the court inquire as to the jurisdiction of the body or officer making the determination which is the subject of review, .and whether it has pursued the mode required by law, but also whether any legal rules have been violated to the prejudice of the relator, and it may examine the facts so far as to ascertain whether the determination was supported by evidence, or was against the preponderating weight of evidence.

There is no qualification in § 2125 of the Code, or in subsequent sections, which prevents the application of the four months limit in a case like this.

There is nothing to prevent a relator from taking both an appeal from an order of the commissioners and suing out a certiorari at the same time and pursuing both remedies concurrently. The determination of the appeal, where the order is affirmed, does not establish the legality of the action of the commissioners, and if a relator may await the termination of the appeal before suing out the certiorari, serious delay would in many cases be occasioned.

We think the four months limitation is a bar to this proceeding and the order should, therefore, be affirmed.

Order affirmed, with costs.

All concur.

       Affirming 24 N. Y. State Rep., 458.


text:
    Nathan A. Turner, App’lt, v. Henry W. Putnam, Resp’t.

      (City Court of Brooklyn, General Term,

      Filed February 24, 1891.)

    Brokers—Commissions.
    Evidence that a real estate broker, employed by defendant to sell certain premises, brought them to the attention of the purchasers and brought them and defendant together, makes a prima facie case for the jury in an action for commissions.
    Appeal from judgment dismissing complaint .at the close of plaintiff’s testimony.
    Action to recover commissions on a sale of real estate. Plaintiff’s testimony showed that he was a real estate broker; that defendant gave him a diagram of the lots in question and agreed to pay him one per cent commision; that he gave the diagram and price to Moores & Le Quesne and called several times on them in relation to it; Moores finally told plaintiff that they had sent their attorney, Alexander, to make an offer to plaintiff; defendant denied having seen him, and then plaintiff gave defendant their name and address as customers ; a few days afterwards the lots were sold toMoores & Le Quesne.

      A. W. Tenney, for app’lt; Horace Graves, for resp’t.
   Per Curiam.

We have carefully read all the testimony in this case and are satisfied plaintiff made out a prima facie case for the jury.

There is testimony which strongly tends to • show that defendant, knowing him to be a real estate broker, employed plaintiff to sell certain premises, that plaintiff brought the same to the attention of the purchasers, and brought them and the defendant together, and that defendant sold these parties the premises for the price he asked.

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

Clement, Oh. J., and Yan Wyck, J., concur.


author: Van Wyck, J.

text:
    Robert L. Moores, Resp’t, v. William H. H. Glover, Appl’t.

      (City Court of Brooklyn, General Term,

      Filed February 25, 1891.)

    Evidence—Parol to vary written contract.
    The exception to the rule prohibiting the admission of parol evidence to vary a written contract which allows such evidence where the original contract was verbal and entire and a part only reduced to writing, has reference to an instrument on the face of which there is nothing to show that it was intended to contain the entire contract, and has no reference to one which on its face does indicate such intention and design.
    Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial.

      Horace Graves, for resp’t; Hays & Greenbaum, for app’lt.
   Van Wyck, J.

The testimony in this case shows that defendant one Sweeney, about October, 1887, into a written agreement whereby Sweeney contracted to sell and convey to defendant four houses on Yanderveer street for $7,500. The testimony further shows that plaintiff and defendant entered into a written contract, signed and sealed by both in October, 1887, whereby the plaintiff covenanted to convey to defendant two unfinished houses on Quincy street, and the defendant covenanted, in consideration of such conveyance, to finish and sell the same with the utmost diligence, and divide the net profits between them. The plaintiff was allowed (against the objection of defendant that the terms of this written contract ought not to be contradicted, altered, added to or varied by oral evidence) to show by parol testimony that, prior to the execution thereof, the olaintiff agreed to convey the Quincy street houses and procure ,e conveyance of the Yanderveer street houses to defendant, and that defendant, in consideration of the conveyance of the two sets of houses, agreed to pay the'owner of the Yanderveer street houses $7,500, and pay the plaintiff $900, and to finish the Quincy street houses and sell them, and divide the profits- thereupon equally between them. The plaintiff recovered at the trial for a breach of the alleged contract, in the failure of the defendant to pay the $900. The question on this appeal is whether or not the additional terms established by parol evidence can be engrafted upon and inserted in the written contract for the purpose of sustaining the recovery herein. The courts, recognizing that memory has natural defects besides being subject to be warped and twisted by bias, and being liable in the face of self-interest to substitute strained and unwarranted inferences for the language used, have declared a general rule applicable to this subject; that the presumption of law is that a contract reduced to writing contains the whole of the agreement, and that oral representations and stipulations differing from and not inserted in it, will not be admitted to add to, take from, vary or modify the written agreement. Engelhorn v. Reitlinger, 122 N. Y., 76; 33 N. Y. State Rep., 275; Marsh v. McNair, 99 N. Y., 174: see p. 179.

Unless the case at bar comes within some one of the exceptions thereto, this recovery cannot be upheld. • The object of the rule is to protect the parties to the contract against bad memories and bad faith. The exception, of which the largest number of the authorities treat, is -based upon the imperfections of language, and the inadequate manner in which people adjust words to the facts to which they apply. Hence parol evidence is resorted to for the purpose of interpreting the language of written instrumets, but this exception will not help the plaintiff. Hinnemann v. Rosenback, 39 N. Y., 98.

Another exception is where the instrument does not purport to be the complete and entire contract of the parties. Receipts and agreements in part performance of the oral contract come withinthis. The instrument in question is a contract with mutual covenants, and has none of the elements of a receipt. It is not a part performance of any of the terms of the alleged parol agreement. It is simply, according to plaintiff’s own showing, certain mutual promises of the alleged oral agreement reduced to writing. The deed of conveyance given in pursuance of the parol agreement would be an instrument made in part performance of such agreement, but a promise in writing to give the deed would be a mere reduction to writing of the parol promise. Chamberlain v. Van Campen, 7 N. Y. State Rep., 100; Filkins v. Whyman, 24 N. Y., 338; Marsh v. McNair, 99 id., 174, see p. 179.

The exception that the general rule “ does not apply where the original contract was verbal and entire, and a part only was reduced to writing ” has reference to an instrument upon the face of which there is nothing to show that it was intended to contain the entire contract between the parties, Chapin v. Dobson, 78 N. Y., 74; Brigg v. Hilton, 99 id., 517; Routledge v. Worthington, 119 N. Y., 596; 30 N. Y. State Rep., 195, and has no reference to an instrument which does upon its face indicate such intention and design.- It would destroy the rule to permit a party to show that a perfect, complete and consummated written agreement like this one, with mutual covenants, was only a part of the verbal agreement between the parties, and to insert additional terms either more or less onerous. Engelhorn v. Reitlinger, 122 N. Y., 76; 33 N. Y. State Rep.; 275 ; Marsh v. McNair, 99 N. Y., 174; Eighmie v. Taylor, 98 id., 288 ; Larrowe v. Lewis, 44 Hun, 226 ; 7 N. Y. State Rep., 809 ; Wilson v. Deen, 74 N. Y., 531.

We think the judgment and order appealed from should be reversed, and a new trial ordered, with costs to abide the event

Clement, Ch. J., concurs.


author: Clement, Ch. J.

text:
    James J. Meehan, Resp’t, v. The City of Brooklyn, App’lt.

      (City Court of Brooklyn, General Term,

      Filed February 26, 1891.)

    Municipal corporations—Police—Brooklyn.
    Under the revised charter of Brooklyn, construed in connection with chap. 348, Laws 1887, a policeman who has served one year is advanced to the second grade, and after two years service to the first grade, by virtue of the act itself, and by accepting the salary of a lower grade he waives no rights, the law being mandatory, and the increase not being dependent on the act of the commissioner.
    Appeal from judgment in favor of plaintiff.
    Action to recover a balance of salary alleged to be due to plaintiff as a patrolman.

      John A. Quintard, for resp’t; Almet F. Jenks, for app’lt.
   Clement, Ch. J.

The respondent was appointed a patrolman on the police force of this city on May 11, 1887. At that time the salary of a patrolman was fixed by § 4 of chap. 467, Laws of 1879. On May 17, 1887, chap. 348, Laws of 1887, was passed, which provided that on and after July 1,1887, the grade of patrolmen, in cities having a population of over 500,000 and not exceeding 800,000, should be as follows: All patrolmen who should have served three years and upwards should be members of the first grade; all patrolmen who should have served less than three years and more than one year should be members of the second grade, and all other patrolmen on the force should be members of the third grade, and all persons appointed as patrolmen after July 1st should become members of the third grade. The act further provides that “whenever any member of the third grade shall have done service therein for one year he shall be advanced to the second grade, and whenever any member of the second grade shall have done service therein for one year he shall be advanced to the first grade.” There is also a provision in the act that the annual compensation of the police force should be fixed by a majority of the board of estimate. Under chap. 626 of the Laws of 1886, commissioners were appointed to revise the special and local laws of the city of Brooklyn, but in making such revision the act reads that “ said commissioners shall not make any change in the meaning of existing laws, but shall seek to simplify and combine in a single act all existing statutes upon matters embraced in such special and local laws.” The commissioners of revision made their report, and the same was passed by the legislature, and such act is chap. 583 of the Laws of 1888.

Title XI of the act relates to the department of police and. excise, and § 5 of that title reads as follows : “ The grade of the members of the police force who are patrolmen shall be as follows: All such members who shall have served three years or upwards on such force as patrolmen shall be members of the first grade; all such members who have served on such force for less than three years, and more than one year, shall be members of the second grade; and all other members who are patrolmen on said force shall be members of the third grade; and all persons appointed patrolmen shall, on their appointment, become members of the third grade. Whenever any member of the third grade shall have done service therein for one year, he shall be advanced to the second grade; and whenever any member of the second grade shall have done service therein for one year, he shall be advanced to the first grade.’’

The plaintiff claims that he became a member of the second grade on July 1, 1888, and of the first grade on July 1, 1889. It is admitted that he was not paid as a member of the first grade until May 11, 1890. It is contended by the counsel for the city that the plaintiff did not become a member of the first grade until he had served three years. This action was brought to recover the excess of salary from July 1, 1889, to May 11, 1890, received by a policeman of the first grade over that paid to one of the second grade.

We have quoted at length from the different statutes, for the reason that in order to construe properly the revised charter, it is necessary to consider the statutes which were in force- at the time it was passed. People ex rel. Ulrich v. Bell, 4 N. Y. Supp., 869; 24 N. Y. State Rep., 114; affirmed by court of appeals January 27, 1891, without opinion, 35 id., 994. There is a clear rule of construction which, if followed, is decisive of this case; a mere change of the phraseology in the revision will not be construed as a change in the law. Davis v. Davis, 75 N. Y., 221; Taylor v. Delancy, 2 Cai. Cas., 143, 151. By the act of revision the commissioners were not permitted to make any change in the existing laws.

If the question before us was to be decided by the reading of the revised charter, it would be a difficult one to determine, for the act reads that all patrolmen who have served three years and upwards shall be members of the first grade, and also that whenever any member of the second grade shall have done service therein for one year, he shall be advanced to the first grade. The service on the force required in the one case is three years, and in the other two. When we turn back to chapter 348 of the Laws of 1887, which the revisers had in view when the new section was drawn, then their intention becomes clear and plain. All patrolmen on the force on July 1, 1887, were divided into three grades. Those who "had served three years and over were made patrolmen of the first grade.

Those who had served one year, and less than three, became partolmen of the second grade, and those who had served less than one year were made patrolmen of the third grade. Whenever a member of the third grade had served therein one year, he should be advanced to the second grade, and whenever any member of the second grade should have served in such grade one yeár, he should be advanced to the first, grade. • The revised charter when read by itself on this point is contradictory, and has two meanings, but when read in the light of the act which it superseded is easily understood.

To follow the revised charter literally would be difficult. Chap-' ter 467 of the Laws of 1879, before referred to, which fixed the salaries of patrolmen at $1000 per annum, is found in the revision at § 10 of title XI, and in § 5 of the same title we find the provision as to salaries of patrolmen copied from chapter 348 of the Laws of 1887. If both provisions are in force, we have two rates of salary fixed for patrolmen. If we turn to § 6 of title XIII, we find that the salary of a fireman is fixed at two different rates in the same section, which section is derived from § 5 of chapter 467, Laws of 1879, and from chapter 582, Laws of-1887. We refer to those facts, not to criticise the revised charter, but to show that in order to construe such charter it is necessary to look into prior acts.

Chapter 348 of the Laws of 1887 differs in only one particular, which we will refer to hereafter, from chapter 182 of the Laws of 1884, which relates to the police force of the city of New York, and does not at all differ from chapter 582 of the Laws of 1887, which relates to the fire department of the city of Brooklyn, and we understand that in the police department of New York city, and in-the fire department of this city, members are advanced to the first grade after two years service.' While such facts may not be conclusive on the-point involved in this case, yet they show the construction of similar law£ given by corporation counsels who are always vigilant to protect the rights of their respective cities, and who are learned in the law.

Chapter 348 of the Laws of 1887 differs from chapter 182 of the Laws of 1884 in this respect. In the law applicable to New York city, a policeman cannot be advanced until after examination and approval of the police commissioners. In Brooklyn, the law is mandatory, and after the lapse of the proper time the com-, missioner can exercise no discretion, and simply grades the patrolmen as to pay, and this difference seems to answer the point made by the appellant, that Meehan acquiesced by continuing in service in a-lower grade. ' We think that the law advanced him, and not the act of the police commissioner. By accepting the salary of the lower grade, the respondent waived no rights. Riley v. City of New York, 96 N. Y., 331, 339, and cases there cited.

The judgment appealed from must be affirmed, with costs.

Yah Wtck, J., concurs.


text:
    Johh Rieger, App’lt, v. The Faht’s Watch Case Co., Resp’t.

      (City Court of Brooklyn, General Term,

      Filed March 23, 1891.)

    .Costs—Negligence—Coúb Crv. Pro., § 3338, surd. 3. •
    An action to recover injuries caused to a servant by the defective condition of the machine on which he was working is not one for an “assault and battery” within the meaning of § 3338, subd. 3 of the Code, and the plaintiff is not entitled to costs on a recovery of less than $50.

      Appeal from judgment in favor of defendant for $130.22, and from order denying motion to vacate such judgment.
    Action to recover $5,000 damages for alleged injuries to plaintiff while in defendant’s employ.
    The jury rendered a verdict for six cents damages, whereupon defendant entered the judgment in question as its costs.

      Wilber & Oldham, for app’lt; Wetmore & Jenner, for resp’t.
   Van Wyck, J.

The plaintiff in his complaint alleges tha„, while in the employ of defendant, he was engaged in working upon a die and punch machine where he lost a finger, without any negligence on his part, but through the negligence of defendant in permitting the machine to become defective. He recovered a verdict for six cents. Defendant was allowed to tax costs in his own favor, though plaintiff claimed that he should have been allowed costs to the extent of his verdict. Whether the plaintiff or defendant is entitled to costs is the only question before us, and this turns upon whether or not this is an action for an “ assault and battery ” within the meaning of the Code of Civil Procedure, § 3228, subd. 3. This section expressly provides that if the plaintiff in an action for assault and battery recovers less than fifty dollars he shall have costs not to exceed the amount of his recovery.

Under our Code practice the difference between actions in matter of form only has vanished, but their intrinsic differences still exist This often renders it still necessary in the construction of a statutory provision to read it in the light of the intrinsic differences between the several kinds of common law actions. Goulet v. Asseler, 22 N. Y., 225, see p. 228. For injuries to the person there were two forms of action at common law, trespass and trespass on the case. Chase’s Blackstone, 734. The true test of whether the grievance belongs to one or the other of these is: Was the injury the immediate result of the act of the defendant? “It is a settled distinction that where an act is done which is itself an immediate injury to another’s person or property, then the remedy is usually by an action of trespass vi et armis ; but when-there is no act done, but only a culpable omission, or when the act is not immediately injurious, but only by a consequence and collaterally, there no action of trespass will lie, but an action on a special case for the damages consequent on such omission or act.” 1 Cooley’s Blackstone, 121. It is reasonable to suppose that the law-makers had in mind an action vi et armis against the person when they used the words, an action to recover damages for “assault and battery,” and meant to exclude an action for injury to the person by negligence, which at common law was an action on the case. The Code of Civil Procedure makes this distinction between an action for assault and battery and one for negligence. Section 2863, subd. 3, denies jurisdiction to justices of the peace of an action “to recover damages for an assault and battery.” Section 2862, subd. 2, confers upon such justices jurisdiction of an action “to recover damages for a personal injury.” Blin v. Campbell, 14 Johns., 432 ; Vandenburgh v. Truax, 4 Denio, 464; Benedict’s New York Civ. & Crim. Justice, 1878 ed., p. 114, or 1889 ed., pp. 129, 130,; Argersinger v. Lever, 17 Civ. Pro., 353, 355; Coulter v. Amer. Union Express Co., 56 N. Y., 585. The fair construction of these provisions gives justices jurisdiction of an action for negligence, and denies them that of an action for assault and battery. This being so, the intention is equally clear in § 3228, subd. 3, to give the defendant costs in actions of which justices have jurisdiction if plaintiff recovers less than fifty dollars. To hold this to be an action of assault and battery for the purpose of costs and not such for that of jurisdiction where the exact language is used in both sections, and one of them expressly refers to the other, would be a refinement that could subserve no useful end. We have not overlooked the decision in Garrabrant v. Sullivan, 13 Civ. Pro., 196, which is in conflict with our views, but as there is no opinion in that case, we do not feel called upon to yield our convictions, to it.

Judgment and order must be affirmed, with costs.

Clement, Ch. J., concurs.


author: Osborne, J.

text:
    Michael Gibbons et al., Resp’ts, v. Thomas Russell, App’lt.

      (City Court of Brooklyn, General Term,

      Filed March 23, 1891.)

    1. Contract—Architect’s certificate.
    In an action to recover for work done under a building contract the plaintiff testified that the work was completed and that he applied to the architect for a certificate; that he found no fault with the work, hut referred to some damage by water, and advised that defendant be seen about, it and said that defendant was a crank, and that he did not like to give a certificate until defendant was satisfied. Held, that on this testimony it was proper to submit to the j.:ry the question whether the certificate was unreasonably withheld.
    2. Same—Substantial performance—Trial.
    Where the evidence as to substantial performance of the contract is conflicting, the question is peculiarly one for the jury, and a denial of motions to dismiss and for direction of a verdict is proper.
    3. Same—Evidence.
    A question put to defendant as to whether he made any work or attempted to have anything done that was not a remedying of the defects specified by him, is improper, as calling for a conclusion.
    Appeal from judgment in favor of plaintiffs entered on verdict and from order denying motion for a new trial. Action to recover a balance claimed to be due on a building contract. Defendant counterclaimed for damages caused by the negligent conduct of the work and because portions were left undone which defendant was obliged to have completed. On the trial he testified to various defects in the work, and was then asked by his counsel, “ Did yon make any work, or attempt to have, anything done that was not a remedying of the defects and injuries that you have testified to ?” This question was excluded by the court as calling for a conclusion.

      George W. Pearsall, for resp’ts; Theodore F. Miller, for app’lt.
   Osborne, J.

On or about April 13th, 1889, plaintiff entered into a contract with defendant for putting an extra story on his house, at Ho. 303 President street, in this city, for the sum of $2,000, according to certain specifications; the contract provided that the work was to be done to the satisfaction and under the direction of the architect, one Covert, to be testified by a writing or certificate under his hand. Plaintiffs brought this action to recover a balance of $970, alleged to be due on said contract, and also a further sum of $50.50 for extra work; in all, $1,020.50.

The claim for extra work was not disputed by defendant; as to the balance alleged to be due on the contract, defendant claimed that the work was done improperly, and not according to the specifications ; that it was not done to the satisfaction of the architect, who has refused to give a certificate to that effect, and that he has suffered damages by the negligent conduct of the work, to the amount of $500, and has been compelled to expend five hundred and thirteen dollars 53-100, to complete the work as contracted for which amounts he counterclaimed. >

On the trial plaintiffs had a verdict for $770, and from the judgment entered thereon, and from an order denying a motion for a new trial, this appeal is taken.

At the close of the plaintiff’s case, the learned counsel for the appellant moved to dismiss the complaint, on the ground that the architect’s certificate had not been given, and that it had not been shown that it had been unreasonably withheld, which motion was denied, and the refusal excepted to.

We do not think this exception was well taken. One of the plaintiffs testified that the work called for by the contract had been completed; that he applied to the architect, Covert, for a certificate to that effect; that Covert made no complaint about the manner in which the work had been done; he referred to some damage done by water, and advised plaintiff to see defendant and fix the matter up, adding that “ he (Russell) is a little cranky, and I don’t like to give a certificate; that he did not like to give a certificate until Mr. Russell was satisfied; that he was a crank, and ought to settle with us; that he did not know the reason why.”

We think, on this testimony, that it was proper to submit to the jury the question whether the architect’s certificate had been unreasonably withheld. If the contract had been completed, as plaintiff testified, it was the duty of the architect to furnish the certificate, and a refusal on his part so to do was unreasonable. Bowery Nat. Bank v. Mayor, etc., 63 N. Y., 337.

The testimony on the part of the defendant sought to show that _ the work was improperly and negligently done, thereby causing him damage, and that, in several particulars, the work was not finished as required by the contract and specifications. These matters were disputed by the rebutting testimonv on the part of the plaintiff, and the issue was accordingly made as to whether the contract liad been substantially performed. This was peculiarly a question for the jury to determine, and we are therefore of the opinion that the motion to dismiss and the motion for direction of a verdict for defendant at the close of the testimony were properly denied. Nolan v. Whitney, 88 N. Y., 648.

The learned counsel for the appellant also contends that the verdict was contrary to the weight of evidence. We have carefully gone over all'the evidence, and are unable to agree with him in his contention. While it is true that there are some sharp contradictions, we can see no valid ground for interfering with the verdict; that the jury were not carried away by passion or prejudice, and that they duly considered the evidence on the part of the defendant is plainly indicated by the reduction of $250 which they made on plaintiff’s claim. We think substantial justice was done between the parties.

, The exception to the exclusion of the question put to the defendant is not tenable, for the reason that it called for a conclusion of the witness, and constituted him, instead of the jury,'the judge of what were “ defects and injuries,” and what was necessary to be done to remedy them.

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

Clement, Ch. ¿T., concurs.


text:
    Charles U. Wing, Resp’t, v. Bernardo De La Rionda et al., App’lts.

      (City Court of Brooklyn, General Term,

      Filed March 23, 1891.)

    Ejectment—Costs to be paid on granting new trial include extra allowance.
    On granting a new trial in ejectment under § 1535 of the Code, the court imposed as a condition the payment of all costs, including an extra allowance granted hy the former judgment. Held, that the requirement of the payment of the amount of the extra allowance was proper, although it was not taxed and was directed in the findings of the court “ in addition to the costs.” An extra allowance is an item of costs just as much as the trial or term fee.
    Appeal from so much of an order granting a new trial in an ejectment action as requires the payment by defendants of the extra allowance granted to plaintiff on the trial, as a part of the costs to be paid pursuant to § 1525 of the Code.

      Charles H. Otis, for resp’t; O. J. Wells, for app’lts.
   Clement, Ch. J.

This is an action of ejectment, and was tried at special term, and judgment was in of the plaintiff. An extra allowance was awarded in his favor for the sum of $700. The judgment was affirmed by the general term and the court of appeals, and the defendants then applied at special term for a new trial, on payment of costs, which motion was granted. The learned judge held that the allowance of $700 should, be paid as part of the costs, and the defendants took this appeal from so much of the order as required the payment of the allowance. _

_ This question does not appear to have ever before been raised, and no authority directly in point has been cited. The counsel for the appellants lays stress on the fact that the court found that the plaintiff was entitled to judgment together with his costs and an extra allowance of $700 ” and that the allowance was not taxed in the bill of costs. It would have been technically the proper practice, in our opinion, for the clerk to have included in the bill of costs the allowance. It is the custom of the clerk to endorse on the judgment roll the damages and costs separately, including the allowance in the costs and it is also usual for the clerk to tax in the bill of costs allowances, whether the party is entitled to the same under §§ 3252 or 3253 of the Code of Civil Procedure. We do not think that the fact that the allowance was not taxed, or that the court, in the findings, directed an allowance in addition to the costs, has any bearing on the question before us for review.

Prior to the Revised Statutes, the action of ejectment was simply to recover the possession, and the party could sue as often as he chose, and could only be stayed by the court of chancery. Bates v. Stearns, 23 Wend., 482. By the Revised Statutes it was provided that a judgment in ejectment should be vacated within three years on payment of all costs and damages. The damages did not cover mesne profits prior to the Code of Civil Procedure. Larned v. Hudson, 57 N. Y., 151. The provision of the Revised Statutes as to new trials in actions of ejectment is re-enacted in § 1525 of the new Code.

The same is allowed upon payment of all costs and damages, other than for rents and profits and for use and occupation. The right to the rents and profits cannot be determined until after the new trial, and hence the defeated jiarty should not pay the same until the title is determined. It will be seen that since the Revised Statutes the defendant seeking a new trial in ejectment has been compelled to pay “ all costs and all damages ” except damages for mesne profits.

We are of opinion that an extra allowance is an item of costs just as much as the trial or term fee. The word allowance means the sum granted as additional costs. Title X of the Code of Procedure was as follows: “Of the costs in civil actions.” Section 303 provided that “ there may be allowed to the prevailing party upon the judgment certain sums by way of indemnity for his expenses in this action, which allowances are in this act termed costs.” By this section allowance and costs had the same meaning, and the expression additional allowance meant additional costs. See §§ 308 and 309 of Code of Proc.; see, also, Downing v. Marshall, 37 N. Y., 380, 384. Chapter XXI of the Code of Civil Procedure is entitled “ Costs and fees,”and title II is entitled “Fixing the amount of costs,” and article first, “ Sums allowed as costs: disbursements.” By a careful reading of §§ 3252 and 3253, included in such article, title and chapter, it is evident that an allowance is awarded as an item of costs.

It is claimed that an extra allowance has been awarded on the second trial, and that thereby the plaintiff may receive an allowance of ten per cent. We are only called to decide whether the plaintiff was entitled to be paid the allowance awarded on the first judgment. Whether the court had power to grant the second allowance need not be determined until the question is presented. We see no reason why the plaintiff was not entitled to be paid the allowance included in the judgment, as the Code provides that he is entitled to receive all costs and all damages except mesne profits.

Order affirmed, with ten dollars costs and disbursements.

Yah Wyck, J., concurs.


text:
    Charlotte Albere et al., Resp’ts, v. George A. Kingsland, App’lt.

      (City Court of Brooklyn, General Term,

      Filed March 23, 1891.)

    1. Promise—To pat debt of another.
    Charlotte Albere being indebted to defendant, she and her two children executed a mortgage to' him on property jointly owned by them, which mortgage lie assigned. Thereafter defendant, becoming indebted to Charlotte, agreed to pay said mortgage. Held, that a complaint stating the above facts and a failure by defendant to pay set forth a good cause of action.
    2. Same—Parties.
    The children were proper parties to such action, as the promise was for the benefit of all the plaintiffs, and the mother was under a moral and equitable obligation to relieve them from the obligation of the bond and their estate from the lien of the mortgage.
    3. Same.
    The defendant could not object that the holder of the mortgage was not made a party as he did not demur on that ground, and could relieve himself from the danger of double payment by application for an order of interpleader.
    Appeal from interlocutory judgment overruling demurrer to complaint.
    I. G. McDonald, for resp’ts; Jackson & Burr, for app’lt.
   Van Wyck, J.

The complaint shows that plaintiff Charlotte Albere was indebted to defendant in the sum of $500; that she and the other plaintiffs, her children, executed their bond to de-' fendant for that amount and executed a mortgage to secure the same on real estate owned by the three plaintiffs ; thereafter the defendant assigned this bond and mortgage to one Hamlin; that thereafter defendant Kingsland became indebted to plaintiff Charlotte Albere, and in payment of this indebtedness the defendant agreed to pay this bond and mortgage so assigned to Hamlin and then due; that thereafter defendant paid the interest thereon till January 1, 1889, but has failed to pay the principal thereof or the interest thereon since January 1, 1889, though requested to do so. The defendant interposed a demurrer to this complaint on two grounds:

First. That there is a misjoinder of parties plaintiff, in that the plaintiffs George W. Albere and Emma Jane Albere have no interest in the subject-matter of this action.
Second. That the complaint does not state facts sufficient to constitute a cause of action against the defendant.”

The demurrer was overruled, and from the judgment entered thereupon the defendant appeals to this court. We will consider the second cause of demurrer first. Defendant contends that by Ms absolute agreement to pay this past due bond and mortgage he became the principal debtor to the holder of the bond and mortgage and the plaintiffs became simply his sureties, and that sureties can only claim of their principal indemnity for the sum actually paid by them for him; that the plaintiffs have sustained and suffered no damage by the failure of defendant to pay this bond and mortgage. To maintain this construction, he cites a number of cases in which the grantee agrees with the grantor to pay mortgage debts upon the premises conveyed. Calvo v. Davies, 73 N. Y., 211; Pike v. Seiter, 15 Hun, 402; Comstock v. Drohan, 71 N. Y., 12 ; Paine v. Jones, 76 id., 274; Fish v. Hayward, 28 Hun, 456.

In such a case, as between such grantor and grantee, the land is the primary fund for the payment of the mortgage. The promisee is not damaged till he has been compelled to pay the mortgage debt, for the land of the promisor and not of the promisee is burdened with the debt. The estate of the promisor is lessened to the extent of the mortgage debt. But in the case before us the estate of the promisee (the plaintiffs) in the premises is lessened to the extent of the mortgage debt, which the promisor (the defendant) absolutely agreed to pay. Their damage is the amount of such outstanding mortgage debt. These authorities therefore are not applicable to this case. This agreement was not one of indemnity, but an absolute agreement to pay this bond and mortgage and relieve the estate of the plaintiffs from the burden thereof.

It was held in Churchill v. Hunt, 3 Den., 321-324, upon an agreement of defendant to pay the past due note of plaintiff, that the right of action becomes complete on the defendant’s failure to do the particular thing he engaged to perform. Where the covenant is to pay the plaintiff’s debt, it is enough to show it was not paid at the stipulated time. The plaintiff need not go further and show that he had himself paid the demand, or been otherwise damnified by the defendant’s neglect to perform his engagement.” The note was overdue and no certain time of payment being specified, the law required payment to be made immediately, that is on the day when the bond was given. Kingsland agreed to pay the past due bond and mortgage of the plaintiffs, and plaintiffs’ right of action became complete on his failure to do so, without showing that they had paid the same.

In Rector, etc., Trinity Church v. Higgins, 48 N. Y., 532, it was held in an agreement of defendant to pay taxes upon the lands of plaintiff the plaintiff could recover the amount of imposed taxes without paying the same himself. It seems to us that this cause of demurrer was properly overruled, for in this view of the law there is a good cause of action pleaded in favor of the plaintiff Charlotte Albere, if not in favor of all three.

This disposition of that ground of demurrer brings us to the consideration of the other cause of demurrer, that the plaintiffs George W. and Emma Jane Albere have “ no interest in the subject-matter of this action; ” that the cause of action set up is not in their favor, but in that of the other plaintiff, the mother, alone. The consideration of this proposition presents two questions:

First. Whether all three of the plaintiffs were parties to this agreement of the defendant to pay their bond secured by mortgage on premises owned by all of them ?
Second. If the mother alone was a party to this agreement, then whether, it being made by the mother and defendant for her own benefit, and partly, at least, for the benefit of her two children, they can enforce its beneficial provisions, after having adopted and accepted the obligation of the agreement made for their benefit.

It will be observed that the agreement does not, in express terms, contain an exclusive promise to Charlotte Albere, but a promise to pay the bond and mortgage, which were made by all three of the plaintiffs on premises owned by all of them. It being manifestly for the benefit of all, it seems to us it will be assumed to have been made with all, though no promisee or promisees are expressly named. This is a fair inference, unless the circumstance that the consideration for the same appears to have been advanced ■ by one (the mother) alone rebuts it. We doubt very much that one could defeat a promise expressly made to three parties by showing that the consideration was advanced by one, especially where the one so advancing the consideration, as between the three, was morally and equitably called upon to pay the bond and mortgage made by all three on their common property, which the promisor agreed to pay. But it is not necessary to rest plaintiffs’ claim upon this ground. Bor, assuming the mother to have been the only party to the agreement with defendant, the other plaintiffs can invoke the rule, that it is legitimate for one person, for a consideration, to contract with a second to confer a benefit upon a third, which, if accepted by the third, can ordinarily be enforced by him. Wathins v. Reynolds, 123 N. Y., 218; 33 N. Y. State Rep., 173.

The promise of the defendant was for the benefit of all the plaintiffs, for the performance thereof relieved them from the ob- . ligation of their bond, and their estate from the burden of the mortgage. They adopted it by demanding the payment thereof and by bringing this action.

But the learned counsel for defendant insists that no cause of action can be spelled out in favor of the plaintiffs, George W. and Emma Jane Albere, because they are perfect strangers to the consideration of the contract of their mother with defendant; to any intention of the mother to benefit them thereby; to any obligation on her part to them in respect to the thing agreed to be done by defendant; and to any privity of contract or estate between her and them involved in the subject matter of this action. He relies largely upon certain expressions in the opinion of the court in Vrooman v. Turner, 69 N. Y., 280, but we believe the position of plaintiffs can stand the test of these expressions. The history of the transaction leading up to the contract in question, which was known to all the parties at the time the agreement was made, discloses the intent of the mother to relieve her children, as far as she could, from the obligation of the bond, and their land from the burden of the mortgage, in which they joined with her to secure her individual debt. She owed them the duty of contributing, even if the bond and mortgage had been given for the debt of all three, to the payment of the same one-third of the amount, but as they were given to secure her individual debt, she was under a moral and equitable obligation to relieve them from the obligation of the bond, and their estate from the lien of the mortgage. It is by no means certain that the consideration involved in the relation of mother and children would not be sufficient to uphold the enforcement of a contract made by the mother for a valuable consideration with another person for their benefit, in an action by them against such other person. The subject matter of this action cannot be distinguished from the subject matter of the contract in question, viz.: this bond and mortgage, which defendant agreed to pay and satisfy. All the plaintiffs are interested in the performance of the contract by defendant, by virtue of being liable on the bond and having their estate encumbered by the mortgage, and they are under mutual obligations to each other to pay this bond and mortgage, equitably as between themselves.

Defendant suggests that Hamlin, the holder of the bond and mortgage, has accepted the benefits of this contract by receiving the interest up to January 1, .1889, from the defendant, and that he is liable to Hamlin thereon under the rule of Gifford v. Corrigan, 117 N. Y., 257; 27 N. Y. State Rep., 233. That Hamlin should be made a party, or he (defendant) might be compelled to pay the amount twice, if plaintiffs did not pay the bond and mortgage. The answer to this is that he has not demurred on the ground of defect of parties defendants. He could also relieve himself from any danger in that respect by an application for an order of inter-pleader under Code of Civil Procedure, § 820. This objection that there is a hardship and risk attending the recovery of a judgment without prepayment of the same by the promisee has already been passed upon in Rector, etc., v. Higgins, 48 N. Y., 533, in which the court said: “ This objection is not substantial. ” See, also, Furnas v. Durgin, 119 Mass., 500.

For these reasons we are of the opinion that the judgment must be affirmed, with costs, though with leave to defendant to answer the complaint herein within twenty days after service of the order of affirmance, upon payment of costs.

Osborne, J., concurs.


text:
    John Norling, App’lt, v. William H. Allee et al., Ex’rs, Resp’ts.

      (City Court of Brooklyn, General Term,

      Filed March 24, 1891.)

    1. Negligence—Injuries from fence blown down by storm—Trustees.
    Plaintiff was injured by the fall of a fence erected upon property of an estate of which defendants were trustees, which was blown down by a storm of unusual severity. Held, that defendants were not liable.
    2. Same—Leased premises.
    Where the premises in question have been in the possession of a lessee for a number of years, and there is no evidence that defendants were to make repairs, or that the fence was unsafe or out of repair when the lease was made, the defendants cannot be held liable for the condition of the fence.
    Appeal from judgment entered upon a nonsuit.

      T. E. Hodgskin, for app’lt; Wm. H. Sage, for resp’ts.
   Osborne, J.

Plaintiff brought this action to recover damages for injuries alleged to have been sustained by him through the negligence of the defendants by reason of a fence on a portion of .the trust estate held by defendants falling upon him:

The defendant William H. Allee alone was served, and he alone answered. In his answer, he denies, inter alia, all negligence in maintaining said fence, or that it was dangerous or ini secure; he further alleged that the fence was blown down by a storm of extraordinary and unusual violence, and through the act of God. A further defence set up was that, at the time that said fence' was blown down, the premises were in the possession and control of one Hart, a tenant, whose duty it was to keep said fence in repair.

On the first trial of this action, plaintiff obtained a verdict which, on appeal, was set aside and a new trial ordered, on the twofold ground that the storm which blew down said fence was of such unusual violence that the result should be treated as the act of God, and not as owing to the negligence of defendants, and also that defendant, as trustee, was not liable for negligence, but that the remedy of the plaintiff, if any, was against him personally. Yid. opinion, 31 N. Y. State Rep., 412.

On a new trial had, at the close of plaintiff’s case, defendants’ counsel moved to dismiss on the grounds:

‘ 1. That no negligence had been shown on the part of the defendant in regard to the condition of the fence.
2. That the proximate cause of the accident was the violent storm prevailing at the time, and not the condition of the fence.
3. That the premises were in the possession of one Hart, and that there was no evidence to show that the defendants were responsible for the condition of the fence or liable to make any repairs to it.
4. That defendants are sued in their representative capacity as executors, trustees, whereas, if they are liable at all, they are liable in their individual capacity, arid that only one of the defendants has been served with process, and that the others have not appeared.

The motion to dismiss was granted, and the case now comes before us again on the exception of plaintiff to the granting of said motion, and to the order denying motion for a new trial on the minutes.

The evidence on the second trial did not differ materially from that on the first trial; indeed it was in some respects weaker.

"We think, for the reasons stated in our previous opinion, the non-suit must be sustained. The principal point in this appeal, to which counsel on both sides addressed themselves, was as to the liability of the defendants in their capacity as trustees. We are referred to no new cases -which tend to alter our views on this point as expressed in our previous opinion. It must be borne in mind that this action is not one in equity-to reach the trust estate and to charge it with the result of the alleged negligence of the defendants in their capacity of trustees. ' Willis v. Sharp, 113 N. Y., 586, 592.; 23 N. Y. State Rep., 670. It is the ordinary common law action for negligence; the liability, if any, is because defendants were negligent, and the fact that they held the title to the premises on which the fence stood fixes no liability on them as trustees, nor does such negligence create any lien on the premises in favor of plaintiff.

The case of Rogers v. Wheeler, 43 N. Y., 598, cited by the learned counsel for the appellant, does not affect the question here in dispute. In that case, defendants, as trustees for bondholders, conducted a railroad, and, in the course of such business, and within its ordinary scope, contracted to carry some grain. The grain was burned, and defendants -as trustees were held liable as common carriers; it there appeared that they held a lien on the trust property to indemnify them for all liabilities incurred in the management of the railroad, and they were held liable for their contracts on the ground that they received the fruits thereof.

That case certainly is no authority for holding the trust estate here liable for the misfeasance or nonfeasance of these trustees in not properly looking after a fence on the trust estate. To hold that by an action against one of three trustees the trust estate could be mulcted, or perhaps absorbed, without giving the other trustees or the cestuis que trustent an opportunity to be heard, is a proposition for which we can find no warrant in law or in equity.

On the trial of the action it appeared that the premises in question had been in possession of one Hart as a tenant for some fifteen years and the fence in question had been erected for about fifteen years. There was no evidence going to show that the defendant trustees were to make repairs, or that the fence was unsafe or out of repair at the time Hart’s tenancy began. In the absence of such proof, we think defendants could not be held liable for fire condition of the fence. Ahern v. Steele, 115 N. Y., 203; 26 N. Y. State Rep., 295, and cases there cited.

We are accordingly of opinion that the judgment dismissing the complaint, and the order denying the motion for a new trial on the minutes, should be affirmed, with costs.

Van Wyck, J., concurs.


text:
    Christian D’Oro, Resp’t, v. The Atlantic Ave. R. R. Co., App’lt.

      (City Court of Brooklyn, General Term,

      Filed March 24, 1891.)

    1. Negligence—Railroads.
    Plaintiff, a flagman employed by the Long Island Railroad, was temporarily stationed at a street crossing where a gate had broken down. He was obliged to stand in a narrow space between the railroad track and defendant’s horse car track. While engaged in signalling an approaching train, with his back turned to defendant’s track, a driver of one of defendant’s cars, who could plaioly see him for some distance, drove by without slackening speed and knocked him down. Held, that the evidence was sufficient to carry the case to the jury.
    2. Same—Charg-e.
    In such a case a request to charge to the effect that if plaintiff stepped back and thus came in collision with the car, and it would not have done so had he not stepped back, the plaintiff cannot recover, is too general, and a refusal to so charge is proper. .
    3. Same.
    The court refused to charge that it was plaintiff’s duty to look and listen for an approaching car, and if he did not, in the opinion of the jury, discharge his duty in that respect he could not recover. Held, no error; that under the circumstances of the case the request was too broad.
    Appeal from judgment in favor of plaintiff entered on verdict and from order denying motion for a new trial.

      R. H. Carpenter, for resp’t; Tracy, McFarland, Ivins, Boardman & Platt, for app’lt.
   Van Wyck, J.

This is an action to recover damages for personal injuries alleged to have been inflicted through the negligence of defendant.

The jury rendered a verdict of $500 for the plaintiff. From the judgment entered thereupon, and from the order denying the usual motion for a new trial, the defendant appeals. The counsel of appellant, in his oral and printed argument, invites our attention to only three exceptions, which will be considered in the order in which they were taken.

The first exception raises the point that the evidence was insufficient to carry the case to the jury on the negligence of defendant and on the freedom of plaintiff from negligence, and that the complaint, on these grounds, should have been dismissed. We have carefully read and considered the testimony, and are not impressed with the force of this objection. There is testimony in the case which the jury seem to have credited, and which, if true, establishes that, at the time of the accident, the plaintiff was in the employ of the Long Island Eailroad Company as a flagman, at the junction of Washington and Atlantic avenues, where the steam cars running through Atlantic Avenue cross Washington avenue.

The defendant operates a horse car line, which comes down Washington and turns into Atlantic avenue, running very closely to the tracks of the Long Island Eailroad Company on Atlantic avenue. The plaintiff was stationed in the space between the two tracks, which was very narrow, but had to be occupied by him in order to flag the trains and prevent serious accident, as the crossing is in great public use. The space between the overhang of the horse car and the posts of the gate which usually closed the Washington avenue crossing while the steam cars were passing, was sixteen to twenty inches. The position of the plaintiff in this space was a temporary one, as the gate was broken, and it was necessary that a flagman should be employed to warn people of the danger of passing trains. At the time of the accident a train was approaching, attended with the usual and always startling noise of a steain engine and train. The plaintiff was standing in this narrow space, or as nearly so as he could estimate, waving, in the performance of his duty, a flag attached to a staff three and one-half feet long. His face was turned towards the approaching train which he was flagging, and his back was turned towards defendant’s track.

He, being intently engaged upon his duties guarding the passage, did not see or hear the approaching car on defendant’s track, whilst he was in plain view of defendant’s driver for several • hundred feet before the car came up to where he was standing. Defendant’s driver, without slackening his speed, drove right along, knocking plaintiff down with the edge of the front of the car, and injuring him. From these facts, the inference of negligence on the part of the defendant and the want of negligence on on the part of plaintiff can be drawn, and a finding of fact to that effect thereupon is justified.

The second exception was taken to the refusal of the court to charge the following request of defendant’s counsel: I ask your honor to charge the jury that, if this plaintiff stepped back and came in collision with the car in consequence of stepping back, and the car would not have struck him if he had not stepped back, the plaintiff cannot recover.” This request was too general, and asked for a little too much. Suppose the plaintiff, under the circumstances surrounding the situation, intently absorbed in the performance of his duty, waving his flag on a three feet staff, liad, in the noise and excitement of the instant, a great steam engine puffing and ploughing by him, stepped back one, two or three inches, without which he would not liave been struck ? We do not think this, as a matter of law, would have relieved the defendant from the charge of negligence, or, as a matter of law, fastened upon plaintiff the charge of contributory negligence, though it could have been taken into consideration by the jury in determining both questions, and sustained them in deciding both questions against either plaintiff or defendant.

The third exception was taken to the refusal of the court to charge the request of counsel in the following words: “I ask vour honor to charge the jury that it was the duty of this plaintiff to look and listen for a car approaching on that track, and that, if he did not, in the opinion of the jury, discharge that duty in that respect, he cannot recover.” This request was too broad also, for it assumes as a matter of law that he was bound to turn ■around from the steam cars he was flagging and look for defendant’s car. It was for the jury to say whether he exercised ordinary care in the use of the sense of sight to save himself from injury, taking into consideration the necessity of his situation, the •character of the duty he was engaged in, the use of the flag, the .arrival of the engine at the crossing, his ability or inability to ■change his position, and the other circumstances of the situation at that time. After a critical examination of the testimony, we •do not think the verdict should have been set aside as against the weight of evidence, as contrary to evidence, or as excessive in 'the amount of damages.

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

Osborne, J., concurs.


author: Dwight, P. J.

text:
    John J. Berrigan, Adm’r, Resp’t, v. The New York, Lake Erie & Western R. R. Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    1. Negligence—Railroads—Absence of rule requiring a signal.
    In an action for negligence it appeared that the deceased before daylight was engaged in coupling a caboose to some cars of a freight train which had no engine; that other freight cars stood east of those in question upon-the same switch; that an engine backed down to get these cars, drove them back to the cars where deceased was occupied, and the latter was caught between the caboose and the car he was coupling. No signal was displayed to warn the men of the engine that a train was being made up west of them on the same switch, and there was no rule of defendant requiring a signal or warning in such an event. Held, that it was a proper question for the jury whether the absence of such a rule did not amount to negligence upon the part of defendant.
    3. Same—Contributory.
    A rule of defendant required brakemen to use a coupling stick, and the deceased had none when killed. Held, that the question of contributory negligence was for the jury.
    3. Same.
    But where it appears that the stick would under the circumstances have been useless, the deceased, if the jury so find, would be excused in not having it with him.
    Appeal by the defendant from a judgment entered on the verdict of the jury at the Livingston circuit, and from an order of special term denying the defendant’s motion for a new trial on a case and exceptions.

      J. W. Stevens, Jr., for app’lt; E. A. Nash, for resp’t.
   Dwight, P. J.

The action was for the loss of life of the plaintiff’s intestate, occasioned, as alleged, by the failure of the defendant to establish certain reasonable and necessary rules for the government of its servants.

The deceased, Edward Berrigan, was in the employ of the defendant as rear brakeman on a way freight train, which was made up at Corning, and ran to Rochester. The train was made up on siding No. 2 in the Corning yard at an early hour in the morning, which, at the season when the accident occurred, was before daylight. On that morning several cars belonging to the “ Rochester way freight,” including the caboose, were standing without'an engine on the west end of siding No. 2, and two or three cars, which were to be attached to an east bound freight train, stood on the same siding further east. At this time it became the duty of the deceased to couple the caboose of his train to the car which preceded it, and it was while he was in the performance of that duty that he received the injury which resulted in his death. An engine which was engaged in making up the other train came on to the siding at the east end to draw out the cars which stood east of the caboose, but was run against them with such force as to drive them back against the caboose, and the latter against the car with which it was to be coupled, and the deceased was crushed between the two. There was no signal displayed, nor other means adopted, to warn the men in charge of the engine on the east end of the^ siding that a train was being made up on the west end, and that men were likely to be engaged in coupling the cars of the latter, and there was no rule requiring that such signal should be displayed or warning given. The failure to provide such a rule is the specific negligence charged against the defendant in this action; and the precise question upon this branch of the case is whether a reasonable regard for the safety of its employes required the adoption of such a rule. Abel v. President, etc., D. & H. C. Co., 103 N. Y., 581; 4 N Y. State Rep., 269, and cases cited.

We think that question was properly submitted to the jury. It was certainly a hazard to which men engaged in making up a train, in the night time, would not, or should not, ordinarily be exposed, viz.: that of having other cars moved on the same siding in such a way as to be liable to be thrown with violence against the rear of those with which they are engaged. We think it was for the jury to say whether a rule prohibiting such use of a siding, or providing for some signal or warning when such use is made of it, was anything more than a reasonable precaution for the safety of the men employed.

The rules of the defendant were introduced in evidence and are before us. There is no rule which covers or refers to the situation in question. The rule most nearly analagous to that suggested, is one which prescribes the exhibition of a red light bjr night or a red flag by day upon a crippled or disabled car, to indicate that it is not to be moved or collided with. One reason given for this rule is that men engaged in repairing such a car may be under or about it in such a position as to be helpless to save themselves if the car were moved. We think the analogy is close enough to suggest the propriety of a similar rule for the case in hand. Indeed, the cases are so far similar that counsel for the defendant are disposed to argue that the deceased was negligent of his own safety in not applying the existing rule to the actual case, and protecting himself by displaying a red light on the end of his caboose. But it is very clear that he was not at liberty, even if he had been aware of the danger which threatened him, to make such use of the signal mentioned. The rule is specific and confines itself to the case of a disabled car set aside. for repairs.

Another ground for the charge of contributory negligence was more nearly tenable. A rule of the defendant requires bralcemen to supply themselves with coupling sticks and to use them in all cases of single coupling, viz.: by link and pin. The office of that implement seems to be, in effect, to add to the length of the brakeman’s arm, and enable him to reach the coupling from a standing place alongside the car, and raise or lower the free end of the link so that it may enter the draw head, and to cause the pin .to drop into its place, without going between the cars as they approach each other. In this case the evidence shows that the deceased did not have a coupling stick with him, although there were some in the caboose. And the court charged the jury, in effect, that if the accident resulted from the attempt to make the coupling without the use of the stick, there could be no recovery in the action. We think the evidence on this branch of the case justified the submission of that question to the jury.

There was evidence tending to show that when the deceased set about making the coupling he discovered that the link was missing, and that the two drawheads or bumpers of the two cars were in contact with each other; that this made it necessary to separate the cars far enough to insert a link; that, there being no engine attached, he proceeded by means of a “pinch-bar,” or lever, applied to the wheels of the caboose, to move that car back the requisite distance, and having procured a link went between the two cars to insert it into one of the bumpers; that this could have been done in no other way; that the stick would have been of no use for that purpose, and that it was while he was necessarily between the cars to put the link in place that the collision occurred and the injury was received. The evidence was such as fully to warrant a finding of these facts, and being found, they clearly negative the last mentioned theory of negligence on the part of the deceased. We think that both the questions of negligence on the part of the defendant and on the part of the deceased were properly submitted to the jury, and that the verdict must be conclusive on both.

We find no other question in the case which seems to require discussion and are of opinion that the judgment and order appealed from should be affirmed.

Macomber and Corlett, JJ., concur.