author: O'Brien, J. Van Brunt, P. J. (dissenting).

text:
    Arthur J. Connelly, Resp't, v. The Manhattan Railway Co., App'lt.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    1. Railroad—Negligence—Charge.
    In an action for injuries sustained by a collision of elevated trains during the great storm of 1888, where there was testimony that the wheels might, by reason of the snow and ice, be irresponsive to the power brakes, Held, that it was not error to refuse a request to charge that if the power brakes were properly applied the train brakes would not add to the retarding force, and that auy omission to put on the train brakes in that case would not constitute negligence.
    2. Same.
    So also, it is not error to refuse to charge that if the brakes and appliances for stopping the train were properly applied at the distance from the first train always before found sufficient to stop a train under the most adverse conditions known in the operation of that line of railway defendant was not liable.
    3. Same—Harmless error.
    The defendant presented many requests to charge, which were charged. After the court had charged that a railroad company is not liable for the-unexpected results produced by the elements which it could not be expected to foresee; that it is not. liable for injuries arising from the violence of the elements which could not be guarded against by one using due care; that to hold it liable it must appear that the injury resulted from a failure of the company to perform some duty which it should have performed under the circumstances, the court charged on request that “a railroad company is not bound to anticipate or provide against storms of extraordinary and unusual violence, and such as have not, within practical experience, been known in the locality in which the railroad is operated,” but added that the railroad and its servants and agents must exercise the care which is-necessary under those circumstances prevent accidents from occurring. Held, error; but that in view of the entire charge, and the responses to the various requests, there was no possibility that the jury was misled, and that for this single error the judgment should not he reversed. (Van Brunt, P. J-, dissents.)
    Appeal from judgment entered on verdict in favor of plaintiff, and from an order denying defendant’s motion for a new trial.

      Samuel Blythe Rogers, for app’lt; Jacob Fromme, for resp’t.
   O'Brien, J.

This action was brought for the personal injuries sustained by the plaintiff while a passenger on the defendant’s railway during what is known as the “ blizzard ’ of March 12, 1888. The injuries resulted from a collision of two trains upon the defendant’s elevated railroad at Seventy-sixth street and Third avenue.

By an amendment made at the first trial the defendant admitted that" the plaintiff was such passenger, and also admitted the collision ; and further admitted that that admission in and of itself entitled the plaintiff to recover damages; and the defendant still further then and there amended its answer by setting up the affirmative defense that the accident happened notwithstanding the exercise of the highest degree of care on the part of the defendant; that it was an unavoidable accident within the meaning of the law, and was attributable to what is known in the law as an act of God, and could not be prevented by the exercise of that degree of care which the law required of the defendant, and under the circumstances existing at the time the accident happened.

Under the pleadings, as amended, together with the admission, it was only necessary for the plaintiff to prove as his case in chief the nature and extent of his injuries. The burden of proving the affirmative defense was on the defendant.

The first trial resulted in a verdict for the plaintiff for $10,000, which judgment was reversed by this court (one judge dissenting) upon tire ground of error in the admission .of a single question and answer, the judge writing the prevailing opinion saying: -l There is evidence enough in this case to sustain the judgment, and I should be in favor of affirmance were it not for an error which, it seems to me, was committed * * * in the admission of testimony.” 60 Hun, 495; 39 St. Rep., 561.

It is unnecessary to give all the facts appearing upon the second trial, the principal ones relied upon to sustain the burden assumed by the defendant of showing that this was an unavoidable accident, and those militating against this view presented by plaintiff, all sufficiently appearing in the opinions upon the former appeal. Again the plaintiff has been successful, and this time has succeeded in obtaining a verdict for $20,000, double the amount awarded by the jury upon the first trial.

Upon the merits, we concur with the. view expressed in the opinions written in this case upon the former appeal, that sufficient appears from the testimony to have justified the denial of the motion to dismiss the complaint, because upon the testimony it was clearly a question for the jury; and, as we shall see, the escape of the defendant from what, by the two verdicts rendered against it, would accordingly be the just consequences of its negligence, is attempted to be secured by again finding some error in the record sufficient to justify a reversal of the judgment.

It is insisted that it was error to submit to the jury the question of whether the defendant should have operated its road at all on that day. This naked proposition was nowhere charged, and if wo take the exact language of the learned trial judge, in connection with the context, as it appears in the charge, we do not think that any exception to it will lie. He says : “ If they (meaning defendants) have established to you that, by the action of the elements, under the circumstances of the case, they not being guilty of any want of care, the accident happened, then I charge you they are entitled to a verdict. But you must take into consideration the day itself.' It is for you to say whether, under all the circumstances, it was an exercise of proper care for them to have started that train at that particular time, and under those particular circumstances, or to have tried to bring it on under circumstances which were found to exist when the train which collided with the plaintiff’s train approached the vicinity of Seventy-ninth or of Seventy-sixth street. I do not intimate any opinion upon the facts. If you find that, under all the circumstances of the case, the defendant had furnished proper appliances, proper engines and cars, and proper and competent employes, that this accident was caused without any negligence on the part of the defendant, but was due entirely to the storm, and the elements, unaided by any negligence on the part of man, because that is the meaning of the act of God; if man’s agency intervenes no accident can be attributed to the act of God alone; then it is your duty to render a verdict in favor of the defendant. But if you believe, under all the circumstances of the case, and all the evidence before you, that the defendant or its servants were guilty of negligence in starting that train, or in the conduct of it, I charge you the plaintiff is entitled to recover, because then the defendant has not sustained the propositions which it has advanced in the amended answer.”

Considering the questions which were to be submitted to the jury, involving not only the conditions under which the train was started from Harlem, but also those under which it was started from Eighty-fourth street, with instructions to “ skip the Seventy-sixth street station,” it will be seen that the court was right in its charge, when it is read in the light of the facts appearing upon the trial.

Another error assigned is said to be the submission to the jury of the question whether the failure to set the hand brakes caused the accident, it being claimed by defendant that the uncontradicted evidence shows that that could not have possibly been the cause. The evidence upon this subject may be as conclusive in defendant’s favor as claimed, still the form of the request will show that the court was justified in not charging it. Tne request was in these words: “ That if the power brakes were applied properly, the train brakes would not add to the retarding force, and any omission to put on the train brakes in that case would not constitute negligence.”

Undoubtedly, if the power brakes were properly applied, nothing would be gained by the application of the hand brakes. But there was testimony in the case showing that the wheels themselves might, by reason of the snow and ice clinging thereto, have been rendered irresponsive to such power brakes; and it was no doubt for this or some similar reason that the engineer, out of abundant caution, whistled just prior to the accident for the hand brakes. We think that the trial judge was justified in refusing to charge the proposition in the form in which it was presented, and saying that it was a question for the jury.

Error is also assigned for the refusal of the court to charge, at defendant’s request, that “ if the brakes and appliances for stopping the train were properly applied at the distance from the first train always before found sufficient to stop a train under the most adverse conditions known in the operation of that line of railway, the defendant is not liable.”

The judge was justified in refusing to charge this proposition, because it was tantamount to saying that the whole theory of plaintiff’s case was predicated upon negligence of the defendant in the handling of the brakes and appliances for stopping the train; but, as said by Mr. Justice Barrett upon the former appeal : “ The defendant seems to think that its responsibility rested solely upon the manner in which the colliding train was run. Bub it was also called upon to exercise due care (regard being had, of course, to the exceptional circumstances with which it was dealing) in the dispatch and movements of its train. Then, as to the running of the colliding train, we think it was for the jury to say whether the engineers did their full duty in the premises.”

We have now disposed of every question which the ajjpellant invokes for the purpose of obtaining a reversal of this judgment except two, which require more serious consideration. One relates to the refusal of the learned trial judge to charge a request of the defendant, and the other to the amount of damages.

To appreciate fully the force of the exception as to the request refused, those immediately preceding and following it should be •considered as they appear in the record, viz.:

“4. In order to hold a railroad company liable for an injury, the plaintiff must prove that the injury resulted from the failure of the company to perform some duty which it should have performed in the circumstances under which it was placed.”

The Court: “I so charge.”

“ 5. A railroad company is not liable for the unexpected results produced by the elements, which results it could not be expected to foresee.”

The Court: “Iso charge."

6. The defendant is not liable for injuries arising from violence of the elements which could not be guarded against by one using due care.”

The Court: I so charge.”

“ 7. It was the duty of the defendant to run its trains when the accident happened, unless, when it attempted to run them, accidents could have been foreseen by a person of due prudence.”

The Court: “I so charge.”

Counsel for the defendant also requested the court to charge the jury:

“ 8. A railroad company is not bound to anticipate or provide against storms of extraordinary and unusual violence, and such as have not, within practical experience, been known in the locality in which the railroad is operated.”

The Court: “ I so charge,” adding, however, that the railroad and its servants and agents must exercise the care which is necessary under those circumstances to prevent accidents from occurring.

Counsel for the defendant excepted to the qualification of the charge by the court, and to the refusal of the court to charge as requested.

“9. If the jury find that the tracks, brakes and all the appliances used by the defendant were the best known for their purpose, and that the trains were operated with due care, and that, in spite of such appliances and care, the collision occurred owing to the slippery condition of the tracks, or otherwise, the defendant is not liable for the accident.”

The Court: “I so charge.”

The refusal to charge, and the qualification by the court of the eighth request, was error, and was no doubt the result of a failure to apprehend the exact and precise proposition which had been requested by the defendant. That this is not to be wondered at becomes apparent when we examine this record and see that, in spite of a clear, fai-r and exhaustive charge, covering all the questions to which the jury’s attention should properly have been called,' the defendant thereafter submitted twenty-eight requests, “ which repeated in different forms and with a varied verbiage substantially .the same proposition.” Thus substantially the same proposition as involved in the eighth request was contained in the fourth, fifth, sixth and ninth requests, as shown by the record.

The question thus presented is, whether, after having charged repeatedly the same proposition, the failure of the court to apprehend the exact proposition or shade of the proposition contained in a particular request is sufficient, for the second time, to reverse a judgment which, in other respects, is substantially correct and should be upheld. We think it would be sacrificing form to substance to so hold, and that only by a stretch of the imagination can it be held that the failure to charge this exact proposition resulted in injury to the defendant. This case, upon two separate trials, has already occupied many days, and has twice resulted in the same conclusion in favor of the plaintiff and against the defendant. And the manner in wffiich it was tried upon this second trial justifies the inference that, conscious and fearful of the result, every opportunity was taken by defendant to note exceptions to the admissibility and rejection of evidence, and, finally, to submit a great number of requests, in the hope that thereon an exception could be hung sufficient to reverse the judgment, if the damages awarded were beyond the amount which, according to the defendant’s ideas, seemed proper.

We have often felt, and this case furnishes a good illustration, that the submission of numerous requests, each with just a slight shade of difference, was never intended by those who resort thereto as an aid, but rather designed to confuse the court and jury. They may be justly characterized as a “ delusion and a snare,” a delusion so far as the jury are concerned, and a snare with which to entrap the trial judge. Thus, with respect to a request already referred to, as to the brakes and appliances for stopping the train being applied at a distance before that time found sufficient to stop "a train under the most adverse conditions known in the operation of that line of railway, the defendant having excepted to the refusal of the court to charge in the exact language, and to the qualification of the charge as made by the court, this same request was repeated with the distance specified as “ twice as great as heretofore found sufficient,” and as three times as great, the distance in feet being specified as 310 feet, 500 feet, and 700 feet, respectively.

It is thus apparent that these requests were not designed in aid of justice, or for the purpose of introducing clearness, but rather confusion, and thus prepare the way for an inadvertent mistake upon the part of the trial judge in failing to apprehend each particular shading of the same proposition. To hold that such failure in a single instance would necessitate a retrial of a case that has already been twice tried, occupying many days of the time of the court, witnesses and jurors, would be a travesty on justice, and, as already said, would be sacrificing substance to form and should not be sanctioned. In a criminal case, regardless of exceptions, it is within the province of an appellate court to do what substantial justice requires, and the Code makes express provision for disregarding errors in equity causes which do not result in injury to the party against whom they are made. A different rule has always been applied to actions at law, requiring that it must clearly appear that such error did not injure the party, or else the judgment for such error must be reversed.

We have examined this record, and regard being had to the number of times the jury were instructed not only in the original charge, but in the separate requests presented by the defendant, that the railroad was not liable unless failure to perform some duty was proven, and that the mere fact that the accident had happened was no reason for holding the defendant liable, and in view of the statement charged in the sixth request, that “ the defendant is not liable for injuries arising from violence of the elements which could not be guarded against by one using due care,” to conclude that the jury were affected by the qualification inadvertently made by the judge would be to place undue stress upon what must necessarily have been, taking the connection in which it was made, a harmless error, and would subject an action like this to the test of innumerable trials before a result could ever be reached, if defendant in every subsequent trial will but resort to the same plan, with a view to introduce confusion, and dig pitfalls in the shape of a great number of requests, into one of which it may reasonably hope that the trial judge will fall.

Taking the entire charge, and the many ways in which the jury were instructed as to the proof necessary to establish the defendant’s negligence and entitle plaintiff to recover, there is not the slightest possibility that they were in any way misled, or that the defendant was in any wav injured by the failure to charge the eighth request in the exact language in which it was submitted, or by the qualification made thereto by the trial judge. And we are of opinion that the judgment should not, for this single error, which is one of form and not of substance, be reversed.

The other serious question is that relating to the amount of damages. We think, regard being had to the evidence as to the character of the injuries and the amount of pecuniary loss suffered by plaintiff, that the verdict was greater than should have been awarded, and that the amount upon the former trial was more nearly compensatory. The plaintiff, however, has been subjected to the expense and delay of a second trial, and this, together with the other facts and circumstances appearing, would justify a verdict of $12,500.

Our conclusion, therefore, is that the judgment should be reversed and a new trial ordered, with costs to abide the event, unless the plaintiff will stipulate to reduce the verdict to $12,500, upon which amount he would be entitled to his allowance and costs, and if so modified, it should be affirmed, with costs and disbursements.

Follett, J., concurs.

Van Brunt, P. J. (dissenting).

This action was brought to recover damages for personal injuries received by the plaintiff while a passenger on one of defendant’s trains. The injury resulted from the collision of two trains on the defendant’s road at Seventy-sixth street and Third avenue on the 12th of March, 1888, which collision, it was claimed, was caused by the negligence of the defendant.

The defendant, by its answer, admitted that, the plaintiff was injured, and also admitted the collision, and set up the affirmative defense that the accident wras unavoidable, and was attributable to what is known in the law as the act of God, and could not be prevented by the exercise of that degree of care which the law required of the defendant and under the circumstances existing at the time the accident happened.

Without considering the evidence in detail, it is sufficient to say that the collision occurred during the great storm of March 12, 1888 ; and it was claimed upon the part of the defendant that its appliances were in perfect order, but that, in consequence of the condition of the tracks, caused by the severity of the storm, the train could not be stopped by the brakes, and the collisionv thus resulted without any fault or negligence upon its part

Evidence was offered, upon the issues presented by the pleadings, upon both sides, and the case submitted to the jury, who rendered a verdict in favor of the plaintiff. And from the judgment thereupon entered, and from an order denying a motion for a new trial, tliis appeal is taken.

In the disposition of this appeal it has not been deemed necessary to state in detail the evidence which has been introduced upon both sides during the progress of the trial, nor the various facts which it is claimed were established by such evidence, as the result would seem to depend upon a single exception to the charge of the learned court.

The court charged, at the request of the defendant, that the mere fact that an accident, happened did not entitle the plaintiff to recover damages, and that a railwajr company is not an insurer of the lives* or safety of the passengers on its trains; and that it was not the duty of the company to make accidents impossible; and that, in order to render the company liable for an injury, the plaintiff must prove that the injury resulted from the-failure of the company to perform some duty which it should have performed under the circumstances under which it was placed; that a railroad company is not liable for the unexpected results produced by the elements, which results it could not be expected to foresee; and that the defendant was not liable for injuries arising from the violence of the elements which could not be guarded against by one using due care; and that it was the duty of the defendant to run its trains when the accident happened, unless, when it attempted to run them, accidents could ha,ve been foreseen by a person of due prudence.

The counsel also requested the court to charge as follows: “ A railroad company is not bound to anticipate or provide against storms of extraordinary and unusual violence, and such as have not within practical experience been known in the locality in which the road is operated.” To this request the court said: “I so charge,” adding, however, that “the road and its servants and agents must exercise the care necessary, under these circumstances, to prevent accidents from occurring.” The counsel for the defendant duly excepted to this qualification of the charge, and to the refusal of the court to charge as requested.

This seems to have been clearly error, because the qualification made by the court made the railroad company insurers of the lives and safety of the passengers on its trains. It charged that the company must exercise the care which is necessary under these circumstances to prevent accidents from occurring, which entirely nullified the words of the request, and imposed not only the duty of using due diligence in preventing accidents, but of using such care as would absolutely prevent accidents from happening, no matter from what cause, even if such accidents arose from the existence of extraordinary and unusual circumstances which no person of due prudence could have anticipated.

The only question is whether the court, by charging the subsequent requests of the defendant, without in any way adverting to the charge already made, remedied the evil.

The court subsequently charged, at the request of the defendant, that if the jury finds that the tracks, brakes and all the other appliances used by the defendant were the best known for the purpose, and that the trains were operated with due care, and that, in spite of such appliances and care, the collision occurred owing to the slippery condition of the track or otherwise, the defendant is not liable; also, that the defendant was not required to take such precautions to prevent the accident as it was apparent after the accident would have prevented it, but only such due care as would be demanded of one operating the trains who did not know • that the accident would happen.

It is clear that the court had in mind the true measure of liability, and that the jury were instructed with all the liberality towards the defendant that it had a right to ask. But, unfortunately, this proposition excepted to by the defendant, that it was bound to use such care as would under extraordinary and unforseen circumstances absolutely prevent accidents, gave to the jury an erroneous rule. And it is impossible for the court to determine as to whether, in arriving at the conclusion which they reached, they held the defendant liable because of the erroneous rule laid down for their guidance, or because of the 'correct rule which both preceded and followed that which was erroneous.

Much as we regret to direct a new trial in this case, after a second trial has been had, we see no other alternative in view of the error which was unfortunately committed by the learned justice presiding at the trial. The confusion undoubtedly arose from the multiplicity of requests which were presented to him at the time of the charge, and which repeated, in different forms and a varied verbiage, substantially the same proposition.

The judgment appealed from must be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Judgment modified in accordance with opinion of O’Brien, J., and as modified affirmed, with costs and disbursements.


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    Fred. Williams, App'lt, v. Thomas I. Montgomery et al., Resp'ts.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    1. Corporations—Stock pooling contract.
    By an agreement entered into by the parties to this action, it was provided that the stock issued to them should be deposited in the Central Trust Co., and should not be withdrawn for six months without the written consent of all parties, unless a certain amount of tre :sury stock was sold, in which case either party could withdraw his stock on giving live days notice to the others. Held, that such agreement could not be enforced. If it was intended to restrain the disposition of the stock for six months, it was against the statute and public policy.
    2. Same— Sales of stock not prohibited thereby.
    Such agreement did not prohibit a sale of the stock, but only the handing over of the certificates to the purchasers, and the transfer of the same on the books of the company.
    Appeal from order denying motion for injunction pendente lite, and dissolving preliminary injunction.

      G. H. Pinney, Jr., for app’lt; W. W. Cook, for resp’t, Powell; J. H. Miller, for resp’t, Montgomery; Stern & Rushmore, for resp’t, Lande.
   Van Brunt, P. J.

It appeared from the papers that in September, 1892, the Hydraulic Brake Company was organized under the laws of the state of New Jersey, with a total capital stock of $5,000,000, which was to be issued for certain patents covering a railway train brake; and that, prior to the month of November, 1892, the plaintiff was jointly interested with the defendants, Montgomery, Powell and Lande, in said patents, which had been theretofore transferred by the patentee, one Guernsey, to said company.

On the 16th of November, 1892, said Powell, Lande, Montgomery and Williams entered into an agreement in respect to the disposition of the stock of the corporation when it should be issued, which agreement bears date the 2d of November, 1892, and is as follows:

“ This agreement, made this second day of November, 1892, by and between John B. Powell, Bernand Lande and Thos. J. Montgomery, all of the city of New York, and Fred. Williams, of London, England, witnesseth: For and in consideration of one dollar paid by each of the parties hereto to each other, the receipt whereof is hereby respectively acknowledged, it is agreed as follows: That of the capital stock of the Hydraulic Brake Company, one million ($1,000,000) dollars shall be put into the treasury of the company for working capital; four hundred and fifty thousand ($450,000) dollars shall be issued to Messrs. Montgomery and Powell as trustees ; four hundred thousand ($400,000) dollars to Messrs. Montgomery and Powell as trustees ; one million and six thousand, two hundred and fifty ($1,006,250) dolíais to Thos. Montgomery; seven hundred and seventy-five thousand ($775,000) dollars to John B. Powell; seven hundred and seventy-five thousand ($775,000) dollars to Bernard Lande, and five hundred and forty-three thousand seven hundred and fifty ($543,750) dollars to Fred. Williams.
“We also agree that the above certificates to Montgomery, Powell, Lande and Williams shall be deposited in the Central Trust Company, with a copy of this agreement, and shall not be withdrawn for the period of six months from this date, without the written consent of each and every party hereto, but with this proviso, that if sufficient treasury stock shall be sold to realize the sum of thirty thousand ($30,000) dollars in cash, then and in that event the stock which has been deposited in the Central Trust Company may be withdrawn by either of the parties, provided said party shall first notify the other parties hereto in writing at least five days before said withdrawal.”

Attached to said instrument was this agreement:

“ Begarding the notification clause of five days in the within agreement, I hereby agree that any notice served upon my attorney, Greorge M. Pinney, Jr., No. 96 Broadway, is binding upon me the same as if served upon myself.
“ Fred. Williams.”

Subsequent to the execution of said agreement, there was issued to the said defendants Montgomery, Powell and Lande the stock of said company which they were respectively entitled to receive in accordance with said agreement; and the plaintiff in his complaint alleges that he has no knowledge- or information sufficient to form a belief as to whether any certificate representing the plaintiff’s interest in said stock had been issued or delivered to any person whatsoever; and that no notice of such issue of stock had been given to the plaintiff; and that the fact that any part of said stock had actually been issued was concealed and withheld from the plaintiff by the defendants, for the purpose of fraudulently carrying out a scheme to render that part of said agreement of November 2, 1892, providing for the deposit of certificates in the Central Trust Company wholly inoperative, and for the further purpose of wrongfully and illegally securing to the defendant Montgomery a controlling interest in the stock of said brake company.

The complaint further alleged that after the stock of said brake company to which Powell and Lande were respectively entitled had been issued to them, the defendant Montgomery purchased or “agreed to purchase from said Lande and Powell enough of their stock to give him, with his own stock, control of the capital stock of said brake company, and that, pursuant to such agreement, the certificates representing the respective interests of said Lande and Powell in said stock were deposited with the defendant, the State Trust Company, together with the agreement or agreements under and pursuant to which the said Montgomery had purchased, or agreed to purchase, tire stock of the said Lande and Powell." The complaint further alleges that none of the certificates of stock of the said brake company issued to the defendants, Montgomery, Powell and Lande, or either of them, have been deposited in the Central Trust Company, as provided in said agreement, and that no certificate representing the interest of this-plaintiff in the stock of said company had ever been deposited in the Central Trust Company, as provided in said agreement.

The complaint further alleges: “That this plaintiff did not, until January.24, .1893, or thereabouts, ascertain that said agreement of November 2, 1892, had been broken by the defendants, Montgomery, Powell and Lande, and an attempt made to render the same wholly inoperative, and that, immediately upon making such discovery, the plaintiff demanded of the defendants, Montgomery, Powell and Lande, that the certificates of the stock of said brake company, issued to the said defendants, and the certificate issued, or to be issued, to this plaintiff, as provided in said agreement, be at once deposited in the Central Trust Company, together with a copy of said agreement, but that the said defendants, Montgomery, Powell and Lande, have wholly refused, and still refuse to comply with said demand.”

The complaint further states that unless the defendants and each of them be enjoined and restrained from making any other disposition of the certificates of said stock, now in the possession of the defendant, the State Trust Company, standing in the names of Montgomery, Powell and Lande, than to deliver same to the Central Trust Company, as provided in said agreement, the plaintiff will suffer irreparable and incalculable loss and damage, and the control of said brake company will become vested in Montgomery, contrary to and in defiance of the spirit and intention of said agreement; and that the whole object and purpose of the plaintiff and of the defendants, Montgomery, Powell and Lande, in executing said agreement, as was fully understood by each of them, was to place defendants and plaintiff on an equal footing as regarded the control of said company for a period of six months after the stock had been issued, and also to prevent for the same period any sales by said defendants, or by plaintiff, of their respective individual holdings of said stock, unless in the meantime a sufficient part of the treasury stock of said company'should be sold to realize $30,000 in cash for the use of the company, and “ that if the scheme of said Montgomery to obtain a controlling interest in the stock of said brake company, by violating said agreement of November 2, 1892, is carried out, it will, as the plaintiff is advised and believes, be impossible to sell any part of the treasury stock of said company for the purpose of meeting the obligations of the company, and of paying its necessary current expenses; that said Montgomery already has, or pretends to have, a first claim against said company to the extent of five thousand dollars (§5,000) for moneys advanced to said company to pa}r two certain notes made by it to-one Guernsey, and that a part of the scheme of said Montgomery in acquiring a controlling interest in the company is to have the company and this plaintiff, as a minority stockholder, absolutely at his, the said Montgomery’s, mercy as a creditor of said company and in defiance of said agreement of November 2, 1892.”

Wherefore, the plaintiff demanded judgment, among other things, for an injunction restraining defendants from delivering to any person other than the Central Trust Company any certificates of the stock of the Hydraulic Brake Company standing in the name of or issued to the defendants, Montgomery, Powell and Lande, and the plaintiff, or either of them, as trustees or otherwise.

The defendants admit the making of the agreement in question and some of the alleged objects of the agreement, and allege that, despite the efforts of all persons interested in said company, no-sale could be made of any of said treasury stock; and that in December, 1892, the difficulties of the company and its financial embarrassments became pressing and were discussed by the defendants, Montgomery, Powell and Lande, and the defendant Montgomery informed them that he was unable to obtain assistance from his friends unless he might own and control a majority of tiie stock, and that if an arrangement could be made whereby said Powell and Lande would sell to him out of their interests, whereby he might obtain a majority of the stock, he thought he-could obtain the necessary assistance to pay the debts of the company ; and that an agreement was reached whereby Powell and Lande agreed to sell sufficient of their stock to give him the control of the company, and the amount of shares belonging to Powell and Lande, together with the agreement of Montgomery to-purchase, were deposited with the State Trust Company, and that, after this arrangement had been made, Montgomery obtained from his friends the assistance desired to relieve the company temporarily from its financial embarrassments.

The defendants deny the concealment of the issue of stock, or that such issue of stock had anything to do with any fraudulent scheme or otherwise to render the agreement inoperative or void. And defendants deny that the object and purpose of said agreement was to place defendants and the plaintiff upon an equal footing as regards the control of said company, or that said agreement prohibited sales by any of the parties of their respective-holdings unless sufficient treasury stock was sold to realize $30,000 for the use of the company. And defendants allege that the intention of the parties was that they should be^prohibited from offering to the public, or on the market generally, their respective shares at such a price, or under conditions that would interfere with the value of the stock or the possibility of realizing an amount of money to the extent of at least the sale of the whole or any portion of the treasury stock. And the ■defendants deny that the fact that Montgomery has obtained control will render it impossible to sell any of the treasury stock.

Upon this state of facts the court dissolved the preliminary injunction which had been procured upon the application of the plaintiff at the commencement of the action, and from the order thereupon entered this appeal is taken.

The case of the plaintiff, as alleged in his complaint, seems to be based upon assumptions as to the object and purpose of the agreement of November, 1892, which are not contained therein, and which form no part thereof.

If it was the intention of these parties, by the deposit of these ■certificates in the Central Trust Company, to prevent any disposition of this stock by the parties owning the same for the period ■of six months, such an arrangement, if not void as being contrary to the statute, is certainly unenforceable as against public policy.

Persons cannot agree to surrender the control and ownership of property belonging to them for a definite period, and enforce such an agreement in any court of justice.

And, furthermore, it is urged that the object and purpose of the deposit of this stock was to prevent the defendant, Montgomery, from obtaining control of this corporation. It is not alleged that any such agreement was entered into between these parties, and it is not contained in the written instrument under consideration. And that such was not the understanding of the parties seems to be evident from the fact that the ownership of any number of shares of stock of this corporation for this period of six months within the first year of its organization would give the defendant no greater control of the corporation than he had at the time of the execution of this agreement. There was no allegation that there was any election of trustees or directors, or that the ownership of this stock could be used for any purpose in reference to the conduct of the business of the corporation.

The claim that it vras the understanding of the parties that this deposit was to be made in order that these parties should be upon an equality in reference to this corporation seems, upon its face, to be absolutely incredible, in that no reason whatever is assigned why the parties owning the greater number of shares in this stock should surrender any advantage which such ownership could possibly give.

It is admitted that the object of these parties was to prevent this stock from getting upon the market until some of the treasury stock might be sold to provide funds for carrying on the business of the company. But there is nothing in this agreement which prevented the defendant Montgomery either from purchasing the stock of Powell and Lande, or from purchasing the debts •due from the corporation, and thus obtaining any advantage which might accrue from such purchase and • ownership. Indeed, the learned counsel for the plaintiff, in one portion of his brief, urges that Montgomery’s purchase of Powell and Lande’s shares was plainly contrary to the agreement of November, 1892 ; and in another part claims that the legal objection urged by the counsel for the defendant, that the agreement is void and against public policy and in restraint of trade, is untenable because there is nothing in the agreement which restrains the defendants from agreeing to transfer their shares for the period of six months, but that they were simply prohibited from making title by the transfer and delivery of the certificates, which, in the present case, they attempted to do, as the certificates are to be delivered to Montgomery upon the payment of his notes, the last of which matures on the 16 th of March.

Now it is idle to say that the mere want of possession of these' certificates of stock prevented the transfer of the title thereto. It may be true that, without the surrender of the certificates, Montgomery could not become the holder of the stock upon the books of the company. But there is no intimation that there was any advantage to be gained by having the stock transferred to Montgomery’s name upon the books of the company. Therefore, it is conceded as well as denied by the plaintiff’s counsel that Montgomery had a right to purchase this stock and become the owner thereof; and the only thing that he was prohibited from doing was to have the manual possession of the certificates, and to have them transferred to his own name. What possible advantage the mere prohibition of the manual possession of these certificates could be to the plaintiff it is difficult to imagine. As already seen, the title to the stock could be transferred, perhaps not with equal facility, but with equal security, the certificates being deposited in the hands of a responsible depository.

Some point seems to have been made upon the part of the plaintiff that no notice of the issue of this stock had been given to him, and that his stock had not been deposited with the Central Trust Company. There is no obligation contained in the agreement to notify the plaintiff of the issue of the stock to him. Nor is there any undertaking upon the part of the defendants to deposit his stock with the trust company. And the point that these various notices might have been given to the plaintiff through his attorney, because of the addendum to the agreement of November, 1892, is certainly not well taken ; because if it had been necessary to give the plaintiff notice of any of these facts in order to have protected the defendants, and a notice had been given to his attorney, and the plaintiff had desired to repudiate that notice, he would have said at once, “ I did not agree to accept notice in that .way; ” and he would have referred to the only agreement which lie executed authorizing notice to be given to his attorney, and that is expressly limited to the notification clause of five days which related to the authority of any of the parties to withdraw tlie stock if §30,000 in cash of treasury stock had been sold upon giving five days notice to the other parties in writing.

It seems to us, upon the whole case, entirely independent of the question as to whether it was necessary for Montgomery to acquire the title to this stock in order that he might procure money to relieve the company from embarrassment, and as to what his purpose was, that the agreement under consideration, was impossible to be enforced ; first, because if it was intended to restrain the disposition of this property for a period of six months from the date of the agreement, it was against the statute and public policy; and secondly, because the agreement imposed no restraint upon the disposition of the stock in question. All that it prevented, if it had been carried out, was the actual handing over of the certificates of stock to the purchasers thereof, and the transfer of the same upon the books of the company; and it is evident that the plaintiff, by the breach of the provisions in reference to the deposit of these certificates, under these circumstances could have sustained no damage and has no cause of action.

The order should be affirmed, with costs.

O’Brien and Follett, J.T., concur.


author: Per Curiam.

text:
    The People ex rel. Frank Daniels, App'lt, v. George Crawford, Resp't.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    Corporations—Inspection of books—Mandamus.
    The petition for a mandamus to compel an exhibition of the transfer hook of a corporation alleged that relator applied to respondent at the company's office in this city and asked him if he came to that place and requested him to transfer stock, whether he had the transfer book, and would make such transfer, and was told that he had charge of the hooks in said office and would do so ; that he then asked to inspect the transfer hook and was refused. The answering affidavit stated that the-company was a foreign one and had no office in this city and no transfer agent here, but did not deny the conversation. Held, that relator was not entitled to a peremptory mandamus under these circumstances ; but to an alternative writ, so that the question of fact at issue could be determined.
    Appeal from order denying motion for a mandamus.

      C. F. Beach, Jr., for app’lt; H. L. Cole, for resp’t.
   Per Curiam.

The relator moved the court below for an order that a writ of mandamus underthe seal of the court issue, directed to and commanding the respondent to exhibit to the relator the transfer book of the Enterprise Mining Company, and a list of the stockholders thereof. Such application was based upon a petition that alleged that the relator asked the respondent, at the office of the corporation in the city of New York, if a stockholder of said corporation desired to have his stock transferred, and came to the office of said company, at 88 Wall street, in the city of New York, and requested of said Crawford that he transfer such stock, whether said Crawford did not have charge of the transfer book, and conformably to the request so made of him would not have-such stock transferred on said transfer book, kept in said office ; that, in answer to this question, said Crawford replied that he did have charge of the books in said office, and would have such stock transferred therein; and that thereupon the said Crawford was requested to allow the relator to inspect the book in which such transfers of stock were made in order that he might obtain a list of the stockholders of said Enterprise Mining Company: which request said Crawford refused.

In answer to this allegation Crawford presented an affidavit, in which he stated that the corporation was a foreign corporation, organized and existing under the laws of the state of New Jersey; that it had no office in the city of New York; that he was not its transfer agent in this city ; and that the corporation had not and never had a transfer office or transfer agent in the city of New York; but he did not deny the conversation with the relator as alleged in the petition.

We agree with the court below that, upon these affidavits, the relator was not entitled to a peremptory writ of mandamus, as a question of fact, necessary to sustain his application, was put in issue.

We think, however, that the relator was entitled to an alternative writ of mandamus, so that the question of fact that is at issue can be determined by the court in the way provided by the Code.

The order should, therefore, be reversed, and an alternative writ granted, with ten dollars costs and disbursements of this appeal to abide the final determination of the proceeding.

Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.


author: Follett, J.

text:
    Francisco Roca et al., Resp'ts, v. Anna D. Byrne, Ex'rx, Impl'd, App'lt.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    1. Principal and agent—When relation exists.
    The relation of debtor and creditor is not inconsistent with the relation of principal and agent, and with the position that the sum owing was received in a fiduciary capacity.
    3. Same -Deposits in deceased agent’s bank account.
    Defendant’s testator was agent for plaintiffs from 1888 to August, 1891, when he died insolvent, being indebted to plaintiffs. A few days previous to his death he received bills of exchange from them, the avails of which were credited on the account and deposited in his bank account, from which he was accustomed to draw for his own account as well as for their business. After his death two more bills of exchange were received, and by someone deposited in the same account. Held, that such moneys were received in a fiduciary capacity, and that a judgment awarding plaintiffs the amount due them, to be paid by the bank out of the account, was correct.
    Appeal from judgment entered after decision at special term.

      Michael H. Cardozo, for resp'ts; Benjamin S. Harmon, for app'lt.
   Follett, J.

When the transaction out of which this action arose occurred, the plaintiffs were engaged in business at Grnayaquil, Ecuador, under the firm name of Boca & Henifiques, and Daniel Byrne was a commission merchant, engaged in business in the city of New York. It .is conceded that in February, 1888, Byrne became the agent of the plaintiffs at said city, and so continued until August 2, 1891, when he died. The plaintiffs were accustomed to consign merchandise to Byrne for sale, the proceeds of which were credited to the account of the principals. Byrne also purchased goods at the city of New York for and shipped them to the plaintiffs, which were paid for by the avails of goods consigned to and sold by Byrne, and by bills of exchange sent to him by the plaintiffs. The plaintiffs were also accustomed to draw bills on Byrne, which he accepted, paid, and charged to their account, and interest was charged on the balances against whichever party happened to be the debtor. Every six months the account was settled. On June 30, 1891, a settlement was had of all unsettled matters, and a balance of $24,953.63 was found to be due to Byrne. Six bills, amounting to $9,721.58, drawn by plaintiffs, accepted by Byrne and charged in the account of June 30, fell due after that date, but were not paid by Byrne, and were thereafter paid by the plaintiffs, which reduced their indebtedness to him to $15,232.05. Between June 20 and August 1, 1891, the plaintiffs sent Byrne nine bills drawn on various persons and firms, amounting to $18,313.69, which be and his representative-received and collected, so that the balance due from his estate when this action was begun was $3,081.64. During the period covered by the transactions involved in this litigation Byrne kept an account with the Corn Exchange Bank, to the credit of which all bis own money, as well as the avails of merchandise and bills of exchange received from the plaintiffs, were deposited, and against which lie drew for his own account and benefit, and also-in conducting the business of the plaintiffs. On July 25, 1891,. Byrne received from the plaintiffs two bills of exchange amounting to $2,474.06, which, on that day, he deposited in said bank to-the credit of his account On July 30, 1891, he received from plaintiffs a bill of exchange for $2,000, which on the same day he deposited in said bank to bis credit. On August 2,1891, Byrne died insolvent On August 5, 1891, some person, claiming to act for the estate of Bjume, received from plaintiffs a bill of exchange for $440, the avails of which, amounting to $489.61, were on the same day deposited to the credit of said account in said bank, and on August 31, 1891, some person, claiming to act for the estate of Byrne, received from the plaintiffs a bill of exchange for $600, the avails of which were, on the same day, deposited to the credit of said account in said bank. The bills described, aggregating $5,513.67, were four of the nine bills which aggregated $18,313.-69, above mentioned.

This action was brought to compel the application of as much of said bank account as was necessary to pay the sum due from. Byrne to the plaintiffs, on the theory that the bills of exchange and their avails were received in a fiduciary capacity.

It is alleged in the complaint, and admitted by the answer, that the avails of the four drafts were deposited in the bank at the dates mentioned; and it was conceded on the trial that when this action was begun $4,514.05 of the money derived from the four bills of exchange were on deposit to the credit of said account. The action was defended on the theory that the relation between the parties was that of debtor and creditor. That this relation did exist is quite apparent. Indeed, it is a necessary foundation for the action. But the relation of debtor and creditor is not inconsistent with the relation of principal and agent, and with the position that the sum owing was received in a fiduciary capacity. National Bank v. Ins. Co., 104 U. S., 54. The plaintiffs alleged in the complaint that Byrne was their agent in these matters, which allegation was admitted by the answer. It was also conceded by the written stipulation signed by the parties, and introduced in evidence upon the trial, that Byrne was the agent of these plaintiffs from February, 1888, down to the time of his death.

How it can be claimed, in the face of these admissions, that Bvrne was not acting in a fiduciary capacity, and that he did not receive these various sums to be expended in the business of the plaintiffs, is quite impossible to see.

The rule is well settled that when an agent receives money or property from his principal, that they may be reclaimed as between the parties, and before other persons have, in good faith, acquired rights in them, so long as the money or the avails of the property can be traced. Knatchbull v. Hallett, L. R., 13 Ch. Div., 696; Pennell v. Deffell, 4 De Gex, M. & G., 372; National Bank v. Ins. Co., 104 U. S., 54; Van Alen v. American National Bank, 52 N. Y., 1; Newton v. Porter, 69 id., 133; Cavin v. Gleason, 105 id., 256; 7 St. Rep., 13.

In this case it was conceded that the avails of the four bills of exchange sent by the plaintiffs to Byrne were credited to the account, and that more than $4,500 of the moneys so derived were in the bank to the credit of the account when this action was begun. The last two drafts, amounting to $1,039.61, were received after the business relations between the plaintiffs and Byrne were dissolved by the 1 atter’s death, and were appropriated without right by some one assuming to act for Byrne’s estate, and the avails deposited to the credit of this account.

The judgment awarding the plaintiffs the amount due them, to be paid by the bank out of the account, was correct, and should be affirmed, with costs.

Van Brunt, P. J., and O’Brien, J., concur.


author: Adams, J.

text:
    Charles Curran, Pl'ff, v. Louis Galen, Prest., et al., Def'ts.

      (Supreme Court, Special Term, Monroe County,

      Filed March, 1893.)

    Conspiracy—Labor unions.
    While persons have a perfect right to unite with any labor organization, they have no right to insist that others shall do so and where they make the refusal to join it a pretext for depriving the person so refusing of his right to labor, their action is unlawful.
    Demurrer to the second count of defendants’ answer.

      A. G. Warren, for pl'ff; D. C. Feely, for def'ts.
   Adams, J.

The complaint in this action charges the defendants with conspiracy to injure plaintiff in his business and character, and to prevent his obtaining employment.

The defendants represent certain labor organizations in the city of Rochester. The plaintiff was in the employ of the Miller Brewing Company of tho same city, and this company was a member of the Ale Brewers Association. An agreement was entered into between the latter association and the local assembly of which the defendant Gfalen was president, by the terms' of which no brewery belonging to the association was to employ any person not a member of defendants’ organization, nor to retain in its employ, for a longer period than four weeks, any person who declined to join such organization.

The plaintiff was not a member of the local assembly, and upon being solicited to join the same declined so to do. The defendants thereupon notified the Miller Brewing Company of this fact, and plaintiff was at once discharged from its employ. These facts constitute the conspiracy charged in the complaint, and they are likewise set forth at length in that portion of the answer demurred to, coupled with the allegation that defendants’ acts were without any intent or purpose to injure the plaintiff. The sole question presented, therefore, is whether the defendants, in what they did, were acting lawfully. If they were, of course no charge of conspiracy will lie against them.

It appears that the defendant, “The Brewery Workingmen's Local Assembly 1796, Knights of Labor,” is one of the various labor organizations of ¡the country. Its members are workingmen who have associated themselves, together, ostensibly7 for co-operation and self-protection. In doing this they have violated no law, and so long as they have no unlawful object in view7 the legality of their organization cannot be questioned. For instance, the members of this local assembly may attempt, by co-operation, to increase their wages, and to that end may agree that they will work only fora certain price, or upon certain conditions, provided those conditions are lawful. Carew v. Rutherford, 106 Mass., 1, 14. But it has been held that co-operative effort, while lawful within certain limits, ceases to be so when coercion is employed to control the freedom of the individual in disposing of his labor or capital, Snow v. Wheeler, 113 Mass., 179, and it seems to me that this is just where the defendants herein have overstepped the boundary line. Not satisfied with becoming members themselves of local assembly 1796, they have insisted that, as a condition of retaining his position in the employ of the Miller Brewing Company, the plaintiff shall also join their organization, and upon his refusing to comply with their demands he has, by their direction, been deprived of his position and of the opportunity which it afforded him to earn a living. This looks very much like up-lawful coercion or, what amounts to the same thing, conspiracy.

The defendants had a perfect right, as we have seen, to unite with this or any other labor organization, but they had no right to insist that others should do so, and when they make plaintiff’s refusal to join it a pretext for depriving him of his right to labor, they interfere with his personal liberty in a manner and to an extent the law wtill not countenance, and their action instead of affording a protection to, operates as a restraint upon honest labor.

There is a statute in force in this state which makes it a misdemeanor for an employer to require as a condition of a person’s entering or remaining in his employ that he shall not become a member of any labor organization. Penal Code, § 171, A.

■ The object of this enactment was doubtless to prevent what the legislature regarded as an improper interference by employers with the rights of their employes, and if it is made illegal for the former to coerce the latter, it is difficult to see why it should not be equally unlawful for one employe to attempt to influence another’s action by the same means.

In passing upon a question somewhat similar to the one under consideration, which arose in the state of Massachusetts, Shaw, C. J., declares that 11 the legality of such an organization will depend upon the means to be used for the accomplishment of its objects and whether they be innocent or otherwise.” Commonwealth v. Hunt, 4 Met., 111-134.

It has been shown, I think, that one of the means employed by the defendants to accomplish the objects of their organization, and the one complained of, not only contravenes one of the fundamental^principles of our free institutions, but it likewise violates the spirit, if not the letter, - of a statute of this state. It follows, therefore, that the facts set forth in the second count of the answer herein by way of defense to plaintiff’s canse of action, constitute an unlawful" act, and the demurrer must consequently be sustained.,


author: Daly, Ch. J.

text:
    Katherine N. Smith et al., App'lts, v. Samuel Corn et al., Resp'ts.

      (New York Common Pleas, General Term,

      Filed May 8, 1893.)

    Contract—Breach—Nonpayment of instalment.
    Plaintiffs performed work for defendants under a contract to do the mason, carpenter and iron work on a building. They performed the work necessary to entitle them to the second instalment, but the architect refused a certificate and defendants refused to pay on the ground that plaintiffs had been dilatory in the work. No time was fixed for the completion of any part of the work. Plaintiffs continued work for a few days, when defendants served notice terminating the contract and subsequently obtained possession of the building. Held, that the delays of plaintiffs up to the time the instalment became due afforded no ground for a refusal to pay it; that by such refusal defendants were in default themselves and could thereafter claim no forfeiture nor put the contractors in the wrong for neglect or inefficiency, nor terminate the contract, and that plaintiffs being prevented from performing fully were entitled to the value of the work already done up to the time they were excluded from the premises.
    Exceptions of plaintiffs to referee’s report on appeal from judgment in favor of defendants, dismissing the complaint, with ..costs.

      Earley & Prendergast, for app’lts; Carlisle Norwood, for resp’ts.
   Daly, Ch. J.

The plaintiffs originally sued for the second instalment of $8,500, alleged to have become due on November 6, 1891,. under a contract with defendants to furnish the mason, carpenter and iron work in the erection of the six-story warehouse at No. 12 Waverly place, in the city of New York. By their supplemental complaint, allowed by stipulation, plaintiffs claim $21,700, the value of the work and materials furnished to the said building, and also damages, upon the ground that they were prevented by defendants, on December 15, 1891, from completing their contract. The action was referred, and after the plaintiffs’ evidence was in the complaint was dismissed on the ground that the plaintiffs, by their own delay in completing the work, had committed a breach of the contract which justified the defendants in terminating it. Findings of fact were made with conclusions of law, and judgment thereon entered for defendants. Plaintiffs appeal from the judgment upon exceptions only to the conclusions of law (none of the evidence in the case being printed), claiming that upon the findings of fact the judgment should have been in their favor.

The principal question is as to the effect of the refusal of the defendants to pay the second instalment provided by the contract. The architect refused the certificate for such payment, and the referee finds his refusal reasonable and justifiable, and that.' there was no breach of the agreement by defendants. The plaintiffs contend that those conclusions are not supported by the facts as found, and that, on the contrary, the defendants’ failure to pay the second instalment constituted a breach of the contract which disabled them from subsequently terminating the agreement for any neglect of the plaintiffs to prosecute the work.

The contract was made on February 23, 1891. By its terms defendants were to give plaintiffs possession of the premises on May 1, 1891, and plaintiffs were to erect the mason, carpenter andiron work required for the new building on or before November 15, 1891, for $32,700, payable in four instalments (1), when all walls and piers were up to the fourth tier of beams and the front up to the first story ceiling, $8,500. (2) When all walls and pier’s were up to the top story, roof planked and tinned and the iron front up to second story, $8,500. (3) When stairs were up and elevator enclosed, skylights closed, building plastered, second coat, $8,700. (4) Last payment when the mason work, carpenter and iron work shall be completed, $7,000. The contract provided that in case of the neglect at any time of the contractor to supply a sufficiency of materials, or workmen, the owner, after three days notice in writing, might provide materials and workmen to finish the work, the expenses to be deducted from the contract price.

No date was fixed for the completion of the work required for each particular instalment. The first instalment was paid September 25th, the work for it having been done a week before. The work for the second instalment was completed November 6th, but the payment was not made nor certificate given as re-quiz-ed by the contract, and the question is whether the facts as found support the referee’s conclusion of law that there was no breach of the contract by the defendants, and that the refusal of the architect to give plaintiffs a certificate for such payment was justified.

There are express findings of fact and of law that the work required for the second instalment was performed; and there is no finding which excuses non-payment of the instalment except (1) that the plaintiffs had from the inception of the contract been very dilatory in the work, and (2) that they acquiesced in delay of the payment and in the imposition of conditions for its payment, which conditions they failed to perform.

The delays of the plaintiffs up to November 6th, the time when the second instalment was earned, afforded no ground to defendants for refusal to pay it. Defendants had suffered the plaintiffs to go on and complete the work which entitled them to-the payment, and it then became due and payable, subject only to deductions for losses sustained by delay. Under the contract the defendants might have given notice to plaintiffs and proceeded to complete the work themselves, but they did not avail themselves of this privilege, but treated the contract as still in force and suffered the plaintiffs to go on, and their claim is limited to damages for not performing the work for such instalment within a reasonable time. Sinclair v. Tallmadge, 35 Barb., 602-6. There is no finding that any loss had been sustained up to that time, and the whole instalment was presumably due and payable.

The plaintiffs did acquiesce in a delay of payment from November 6th to November 11th, upon the promise of the architect to give the certificate on that date if plaintiffs would continue the work with a full force of mechanics and due energy to his approval. The referee finds that this condition was not performed ; but as defendants had no right to impose conditions for the payment of moneys already due, they were not relieved thereby from their default. On the 11th, the day when the instalment was promised, it was not paid. The architect again promised a certificate on the 14th, but on that date, instead of issuing it, the defendants served notice terminating the contract

Various attempts were made by defendants to get possession of the building, which were resisted by the plaintiffs, who continued to go on with the work until December 16th, on which date it is admitted that the defendants gained temporary possession and hindered the performance of the contract. Besort meanwhile was had by defendants to the equitable powers of the court, through a suit in the supreme court, and finally,, on January 21, 1892, plaintiffs were ordered to deliver possession of the premises to defendants upon the latter stipulating to allow the supplemental complaint setting up the cause of action upon which plaintiffs now sue and upon depositing a sum of money to abide the event of this action.

By the refusal on the part of the defendants to pay the second instalment due under the contract on November 6th, they were themselves in default. Notwithstanding the delays of the plaintiffs in performing the work up to that time they had been suffered to go on and complete it, the defendants forbearing to terminate the contract, treating it as still in force and permitting the plaintiffs to proceed thereunder.

Under those circumstances they became liable to pay what had been earned under it, and their failure to do so constituted a breach of the contract. Sinclair v. Tallmadge, supra. They were not at liberty to refuse payment in anticipation of the failure of plaintiffs to complete their whole contract by a date in the future or within a reasonable time. A future breach was not to be presumed. Briggs v. Ottman, 15 Daly, 46; 20 St. Rep., 151. The plaintiffs were not hound to go on and continue with the contract after failure of the defendants to make the stipulated paj-ment. Thomas v. Stewart, 132 N. Y., 582; 43 St. Rep., 881; Struck v. Hurd, 41 id., 777. The contractor might refuse to proceed further with the work if the instalment were not paid. Moore v. Taylor, 42 Hun, 45; 5 St. Rep., 202. Failure to make the payment under the con tract was a breach which would justify a refusal to proceed with it. Flaherty v. Miner, 123 N. Y., 389; 33 St. Rep., 681.

That the plaintiffs did not prosecute the work with vigor or diligence after the default in payment did not relieve the defendants from the consequences of their previous default. As they could not compel the plaintiffs to continue work under the contract after such default, they could not complain that the plaintiffs continued it in a negligent or inefficient manner. They could claim no forfeiture, nor put the contractors in the wrong, for neglect, because they were themselves in the wrong for refusal to pay the instalment due. Graf v. Cunningham, 109 N. Y., 369; 15 St. Rep., 524. Not having performed the contract on their part, they were not in a position to terminate it. Wright v. Reusens. 133 N. Y., 298; 45 St. Rep., 183.

The defendants’ attitude in the case is that of contending that they might suffer the contract to subsist and the plaintiffs to go on and earn the instalment under it, but withhold payment thereof, and subsequently, while plaintiffs were proceeding under the contract, terminate it for delays which had thereafter occurred. There is no warrant for this position. The only way in which the defendants could enforce the contract against the plaintiffs and put them in default for not proceeding, was to pay the instalment due and allow a reasonable time thereafter for the performance of the work. This they did not do; on the contrary, while withholding payment they assumed the right to terminate the contract and took possession of the work. This was wrongful, and the consequence ensues that plaintiffs, being prevented from performing fully,' were entitled to the value of the work already done up to the time when they were excluded from the premises.

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

Bischoff and Pryor, JJ., concur.


author: Bischoff, J.

text:
    John C. McQuhae, App'lt, v. Samuel Rey, Resp't.

      (New York, Common Pleas, General Term,

      Filed May 8, 1893.)

    Husband and wife—Services rendered to wife in proceedings for NON-SUPPORT.
    A. husband cannot be held liable for legal services rendered to his wife in proceedings to compel him to support her, in the absence of proof that such services were necessary for the institution and proper prosecution of such proceedings. The wife’s right to be represented by counsel in such . proceeding does not alone determine the husband’s liability for the expense of counsel fees incurred by her, but the necessity therefor must be shown.

      Appeal from a judgment of the general term of the city court of New York, which reversed a judgment for plaintiff at trial term of the same court and awarded judgment absolute for defendant for dismissal of the complaint with costs.
    Action to recover for services alleged to have been rendered by plaintiff’s assignor, an attorney and counsellor at law, in and about the prosecution of proceedings to compel defendant to provide for his wife’s support, at the request of the wife. See Consolidation Act, Laws 1882, chap. 410, §§ 1454-1457; Code of Criminal Procedure, § 899.

      L. A. Gould, for app’lt; Fromme Bros., for resp’t.
   Bischoff, J.

We are of the opinion that this cause was properly disposed of by the general term of the court below and that its judgment should be affirmed.

Incidentally the wife may be the only person who derives any immediate advantage from proceedings instituted before a police magistrate under the provisions of §§ 1454-1457 of the consolidation act, Laws 1882, chap. 410, and § 899 of the Code of Criminal Procedure, to compel the husband to provide for his wife’s support; but primarily such proceedings are instituted and prosecuted by and in behalf of the people to secure indemnity from the husband for the expense of the wife’s support, to which they have been or may be subjected because of his failure to provide her with sufficient means. Her status in such proceedings is that of a witness only.

Nor does the wife’s right to be represented by counsel in the prosecution of the proceedings alone determine the husband’s liability for the expense of counsel fees incurred by her. Assuming that she has the right, it still remains to show that the services of private counsel employed by the wife were necessary for the institution and proper prosecution of the proceedings. That she deemed it prudent to seek advice from and to be represented by counsel of her own selection still falls short of proving that it was necessary for her to do so.

In the case at bar, it appears unchallenged that the proceedings were instituted and prosecuted by the commissioners of charities and corrections in the city of New York, who, for that purpose, were exclusively represented by an assistant corporation attorney of said city, the latter being thereunto legally designated. Not a scintilla of evidence is apparent from the record from which the necessity for the employment of private counsel by defendant’s wife for the purposes of the prosecution may be inferred, and upon that ground each of the cases cited by appellant’s counsel in support of the contention that plaintiff is entitled to a recovery is distinguishable from the present.

Justly to subject the husband to the payment of debts contracted by his wife, it must appear not only that the goods supplied or the services rendered were of a kind usually called “ necessaries ” from the fact that their need is general, but that they were reasonably required in .the particular instance for which the husband is sought to be held. Bloomingdale v. Brinckerhoff, 49 St. Rep., 142.

J udgment of the general term of the court below affirmed, with costs.

Daly, Ch. J., and Pryor, J., concur.


author: Bookstaver, J.

text:
    Andrew O'Neill, Resp't, v. The Third Avenue Railroad Co., App'lt.

      (New York Common Pleas, General Term,

      Filed May 8, 1893.)

    Negligence—Street railrpad—Right to use of track.
    In an action for injuries to plaintiff’s horse and wagon by a street car, the court charged that the horse was standing in the street where it had a perfect right to stand, and refused to charge that plaintiff’s team was bound, so far as it reasonably could, to keep off the tracks of the railroad company, so as to permit the free and unobstructed passage of the defendant’s cars thereon. Held, error; as the charge and refusal were equivalent to saying that plaintiff was not bound to use reasonable care in keeping off the defendant’s tracks.
    Appeal from a judgment rendered in the district court of the city of New York for the eleventh judicial district.

      Hoadly, Lauterbach & Johnson, for app’lt; L. P. Mingey, for resp’t.
   Bookstaver, J.

This action was brought to recover damages which the respondent claimed to have sustained bv reason of the negligence of defendant’s servants. The action was tried by the court with a jury. On the trial there was much and contradictory evidence given on both sides as to how the accident occurred which produced the injury to the plaintiff’s horse and wagon. At the close of the case the judge charged the jury both as to the facts and the law. He was requested, among other things, to charge that the plaintiff’s team, was bound, so far as it reasonably could, to keep off the tracks of the railroad company so as to permit the free and unobstructed passage of the defendant’s cars thereon. This the trial judge refused, but, on the contrary, had already in his charge said, “ this horse was standing in the street where it had a perfect right to stand.” This, together with the refusal to charge defendant’s request, was equivalent to saying to the jury that the plaintiff was not bound to use reasonable care in keeping off the defendant’s tracks; and this is contrary to the law applicable to such cases. A horse car can only run on the tracks provided for it, and cannot swerve to the right or left to avoid obstacles, which can readily be done by other vehicles. Hence, the courts have held that a public highway, upon which a railway track is authorized to be laid, is necessarily set apart for the use of the owners of the car and tracks to the extent that the public, in passing over that part of the highway, cannot interfere with the running of cars or with the track so as to unnecessarily hinder or delay the business of the railroad. Whitaker v. Eighth Ave. R. R. Co., 51 N. Y., 295; Fenton v. Second Ave. R. R. Co., 126 id., 626; 36 St. Rep., 385; Hegan v. Eighth Ave. R. R. Co., 15 N. Y., 380, and many other cases which may be cited.

We think this error sufficient, under the very contradictory testimony given in the case, and the somewhat improbable accounts of the accident given by plaintiff’s witnesses, to warrant us in reversing the j udgment and ordering a new trial, with costs to the appellant to abide the event.

Bischoff, J., concurs.


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    James King, Resp't, v. J. William Kaiser, Jr., App'lt.

      (New York Common Pleas. General Term.

      Filed May 8, 1893.)

    Pbibcipal and agent—Statute op fkauds—Recokd—Estoppel.
    M, the husband of plaintiff’s grantor, had been accustomed to collect her rents and continued to collect for plaintiff. Some time after the conveyance was recorded M. borrowed money from defendant, for which he gave a note and promised to pay out of the rents coming due in a certain month. Thereafter plaintiff and M. called on defendant and told him that plaintiff was owner of the house and the rents belonged to him, and on defendant making a claim for the money plaintiff said he would have nothing to do with it and M. said he would pay, whereupon defendant accepted an agency to collect the rents. Held, that defendant could not retain the rent for the month specified on his claim, as no authority in M. to assign the rent was shown; the assignment not being in writing was void under the statute of frauds; the record of plaintiff’s deed was notice to defendant of the change of ownership, and the defendant was estopped by accepting the agency under the circumstances from claiming any assignment of the rents.
    Appeal from a judgment rendered in the district court of the city of New York for the ninth judicial district.

      Rabe & Keller, for app’lt; N. J. O'Connell, for resp’t.
   Bookstaver, J.

Prior to May 24, 1892, one Fanny C. Matthews was the owner of the houses Nos. 225 to 229 Willis avenue, in the city of New York, and on that day she conveyed the same by deed to the plaintiff herein. Robert H. Matthews, the husband of Fanny 0. Matthews, was acting as his wife’s agent in respect to these houses in collecting the rent, and by an arrangement between the plaintiff and Matthews the latter continued to receive the rents after delivery of the deed to the former. Matthews had been in the habit of borrowing money from the defendant, and some time in July, and long after plaintiff’s deed had been recorded, Matthews borrowed some moneyfrom the defendant, gave him a note and told him when the note became dne he would pay it out of the money coming as rent of plaintiff’s property for the month of September, 1892. Both plaintiff and Matthews called upon the defendant in the early part of that month, and informed defendant that Mr. King was the owner of the premises and that the rents must be turned over to him. Defendant thereupon asserted his claim against Matthews, and plaintiff said he would have nothing to do with it, and Matthews then told defendant he would pay it, as it was his debt, and then defendant accepted the agency from plaintiff to collect the rents for him. Defendant collected the September rent, but refused to pay it over to the plaintiff, claiming it under the alleged assignment of Matthews to him. Thereupon this action was brought to collect the money so withheld. Upon the trial the defendant conceded that he had collected for September $131.19, so that the only issue between the parties was as to the ownership of the rents so collected.

We think that defendant’s claim that there was an equitable assignment of the rents to become due is untenable, and that for several reasons. First: No authority was shown in Matthews as agent of Mr. King, the owner, to assign the rents in payment of Matthews’ debt. In order to hold the principal, the agent must have acted within the scope of his authority, and to sustain the claim against the principal such authority must be proved. 1 Am. & Eng. Enc. of Law, 415, and cases cited. Second: Because it was not claimed on the trial that there was any written assignment of these rents. It is, therefore, void under the statute of frauds. Rent is a return or compensation for the possession of some corporeal hereditament, and is a certain profit issuing out of land and tenements in return for their use, 2 Bouv., 437; 2 Black. Com., 41; and is incident to the reversion and naturally attaches to the ownership. “ Estate and interest in lands shall be construed to embrace every estate and interest, freehold and chattel, legal and equitable, present and future, vested and contingent, in lands as above defined. R. S., pt. 2, tit. 3, chap. 7, § 6. And the Revised Statutes expressly provide that no estate or interest in land other than leases not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall be created, granted, assigned, surrendered or declared unless by act or operation of law, or by a deed or evidence in writing subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his lawful representative thereunto authorized in writing. Third : Because the recording of plaintiff’s deed long before the taking of the note was constructive notice to the defendant and all others of plaintiff’s claim as owner. The object of the recording act is to put every person dealing with the property upon his guard regarding the same, and consequently he cannot now claim that he had no notice of the change of ownership of the property in question. Fourth : By accepting the agency from the plaintiff, with knowledge that plaintiff disputed any claim of defendant against Matthews payable out of the rents, he is now estopped from claiming any assignment thereof. The evidence shows that plaintiff and Matth.ews called upon defendant in September, informed the defendant that plaintiff was the owner of the property and rents should be paid to him; thereupon defendant asserted his claim against Matthews, which plaintiff said he bad nothing to do with, that defendant must look to Matthews and that if he wanted to take charge of the premises it must be as plaintiff's agent, and that Matthews said then to defendant he would pay him, and thereupon defendant accepted the employment as plaintiff’s agent. Had defendant then refused to waive his claim to the September rents, it is not at all likely that the plaintiff would have given him charge of collecting the same. In this way defendant induced plaintiff to repose confidence in him, and he is, therefore, estopped from.claiming anything as against these rents. Bigelow on Estop., 587.

The judgment should, therefore, be affirmed, with costs.

Bischoff, J., concurs.


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    Michael Lang, App'lt, v. John Everling, Resp't.

      (New York Common Pleas, General Term,

      Filed May 8, 1893.)

      1. Winn—Construction.
    A testator, by his will, gave all his estate to his wife to be held and enjoyed by her during her natural life, if she should so long continue his widow, upon condition that she should out of the income maintain and educate the children during minority, and declared that such provision was in lieu of dower. Meld, that no trust was created, but that a life estate was devised to the widow charged only with the maintenance and education of the children, which was determinable upon her remarriage, and was capable of alienation subject to such charge.
    3. Mechanic’s lien—Owner.
    The widow was an owner within the mechanic’s lien law, upon whose interest a valid lien could be obtained for alterations or improvements, and upon foreclosure the widow’s life estate, subject to the charge, is effectually transferred to the purchaser at the sale.
    3. Same—Summary proceedings.
    The purchaser at such sale becomes entitled to all future accruing rent of the premises, and as between him and a lessee of them the conventional relation of landlord and tenant is created by his conveyance, and he may maintain summary proceedings in case of non-payment.
    Appeal from a judgment of the district court in the city of New York for the fourth judicial district, dismissing summary proceedings to recover the possession of land, instituted bv the lessor’s successor in interest against the tenant upon the ground that the latter continued in possession after default in the payment of rent. Code of Civil Procedure, §§ 2231, etc.

      Bartlett, Wilson & Hayden, for app’lt; John Fennell, for resp’t,
   Bischoff, J.

The premises of which appellant sought to recover possession by means of the summary proceedings which were instituted by him are part of the estate of which Jules Weil died seized. He left a last will and testament, which was duly admitted to probate by the surrogate for the county of New York, and provided as follows : “ 2d. I give, devise and bequeath unto my beloved wife, Jeanette Weil, all my estate, real and personal and mixed, and of every name and nature, and wheresoever the same may be at the time of my death, to be held and enjoyed by her, together with the rents, issues, income, interest, gains and profits thereof, for and during the term of her natural life, if she shall so long continue my widow, upon the express condition, however, that she shall out of such income maintain and educate my children during their minority. * * * 4th. The provision's hereinbefore made for, and the devises and bequests to my said wife subject to the maintenance and education of my children during their minority as aforesaid, are only made and given upon condition that she accept the same in lieu of all dower or thirds in my estate.” It does not appear that the widow entered upon any lands which were assigned to her for dower, or .that she commenced to' recover her dower or for the thereof, within one year after the testator’s death, and under the provisions of the Revised Statutes of this state, R. S., vol. Ill, p. 2198, § 14, Banks & Bros., 7th ed., she must be deemed, to have elected to accept the testamentary provisions for her benefit in lieu of dower.

Some time after the testator’s death Michael Lang, the appellant, obtained a lien pursuant to the provisions of the mechanic's lien law, Laws 1885, chap. 342, upon the widow’s interest in the real property devised to her, for services performed and materials furnished in and about certain improvements and repairs. This lien was appropriately foreclosed by action in this court and the widow’s interest decreed to be sold. At the.sale Lang became the purchaser and by the referee’s deed, which is dated December 13, 1892, her interest was conveyed to him.

Thereupon Lang demanded payment of the month’s rent which became due and payable in advance on the 1st day of February, 1893, from John Everling, who was conceded to be the tenant and lessee in possession under a lease from the widow, and upon his refusal to pay proceedings to dispossess him were instituted by Lang on the ground that he continued in possession after default in the payment of rent without the landlord’s permission. Code Civ. Pro., § 2231, subd. 2. On the trial it was contended for the tenant that the widow’s estate under the will of Jules Weil was that of a trustee to receive the rents, issues and profits and to apply them towards the maintenance and education of the testator’s children during their respective minorities; that Lang did ■not obtain a valid lien upon the trust estate, because such an estate is incapable of sale; and that he did not for the same reason acquire any interest in the premises by means of the foreclosure sale and the referee’s deed to him, and so was not entitled to maintain proceedings to recover possession.

Could we agree to the trial justice’s construction of the will of Jules Weil, the judgment appealed from would require our affirmance. A trust estate is inalienable by express provision of law when the trust is expressed in the instrument which creates the estate. R. S., vol. Ill, p. 2183, § 65, Banks & Bros.’ 7th ed., Powers v. Bergen, 6 N. Y., 360; Leonard v. Burr, 18 id., 107; Briggs v. Davis, 20 id., 21; Fitzgerald v. Topping, 48 id., 444; Douglas v. Cruger, 80 id., 15. Neither a creditor of the trustee personally, nor one of him'in his representative capacity, can acquire by means of the assertion of a lien any rights respecting the trust estate which the trustee did not have, and it follows that if the widow, as devisee of Jules Weil, obtained only a life estate in trust for the testator’s children, that a pretended lien and a sale in proceedings to foreclose it are ineffectual to transfer the estate to the purchaser.

But we are of the opinion that the will devised a life estate to the "widow, charged only with the maintenance and education of the testator’s children, which was determinable upon her remarriage, and that after providing for the maintenance and support of the children, the remainder of the rents, issues and profits enured to the benefit of the devisee of the life estate. That such was the testator’s intention we think clearly appears from the language of the will; but if there is any ambiguity therein, it is dispelled by the fact that the widow is required to elect between her right of dower and acceptance of the devise and bequest to her. Such an election may be imposed only when the testamentary provisions confer some benefit to the widow, R S., Yol. Ill, p. 2198, § 13, Banks & Bros.’ 7th ed., and that the testator required his widow to elect between her dower and the provisions of the will manifests an intention to devise to her something more than a nominal estate.

A “ charge ” upon land by will is distinguished from a “ trust ” of the land, in that in the case of the former the land is devised generally for the beneficial enjoyment of the devisee, subject, however, to the payment by him of a specific sum, or specific sums, of money, or the performance of a particular duty, while in the case of a “ trust ” the devise is limited to some particular purpose with no beneficial interest in the devisee. Am. & Eng. Ency. of Law, vol. 13, p. 109, note; King v. Denison, 1 V. & B. (Eng.), 260, 272; Wood v. Cox, 2 Myl. & Cr. (Eng.), 684; Tregonwell v. Sydenham, 3 Dow (Eng.), 194, 210.

It will be observed that the will under consideration devises to the testator’s widow the income of all his estate generally, with no directions respecting its application, except that out of it she is to maintain and educate his children. This, under the definitions given above, excludes a “trust”'and implies a “charge.” See, also, Dill v. Wisner, 88 N. Y., 153.

The life estate devised to the widow was capable of alienation by her in the absence of a condition restraining it, subject, of course, to the charge imposed thereon by the terms of the will. Am. & Eng. Ency. of Law, vol. 16, p., 881; Jackson v. Van Hoesen, 4 Cow., 325. She was an “owner” within the mechanic’s lien law, Laws 1885, ch. 342, upon whose interest a valid lien could be obtained for services performed and materials furnished in erecting, altering or repairing any house, etc., with his consent, to the extent of such owner’s interest, whether it be that of a fee or of a less estate, and upon the foreclosure of the lien the widow’s life estate, subject to the “ charge,” was effectually transferred from her to the purchaser at the foreclosure sale.

The conveyance of the widow’s estate to Lang, as purchaser at the foreclosure sale, was without any reservation respecting rent, and he therefore became entitled, as owner of the lessor's reversion, to all future accruing rent. Demarest v. Willard, 8 Cow., 206; Whiling v. Street, Anthon’s N. P., 276; Jackson v. Bull, 1 Johns. Cas., 81; Jackson v. Raymond, 1 id., 85, note; (rear’s Law of Landlord & Tenant, § 130. As between him and the.lessee the conventional relation of landlord and tenant-was created by the conveyance, Birdsall v. Phillips, 17 Wend., 464, 473. ISTo attornment was necessary, R. S., vol. III. p. 2195, § 146, Banks & Bros., 7th ed.; Am. & Eng. Enc. of Law, vol. 12, p. 664; Morris v. Niles, 12 Abb. Pr. 103, and the purchaser became entitled to all the remedies for non-performance of the covenants and conditions on the part of the lessee to be performed as the lessor might have maintained bad the reversion remained in him. R. S., vol. III., p. 2203, §23, Banks & Bros. 7th ed.

Neither can it he successfully disputed that the grantee of the lessor’s reversionary estate, whether he became such by voluntary conveyance or judicial sale, is entitled to maintain proceedings to recover possession of the premises, upon the tenant’s or lessee’s default in the payment of rent, under the provisions of §§ 2231, etc., of the Code of Civil Procedure. The term “ landlord,” as used in § 2231, is not restricted to designate the lessor only,, but includes the grantee of the latter’s estate. That this is so appears from subd. 2 of the section last referred to, by which it is required that a previous demand of payment of the rent shall be made, not in behalf of the lessor, but “ in behalf of the person entitled ” thereto ; and from § 2235, which prescribes that application for the removal of the tenant may be made by the landlord or lessor, or by the legal representative, agent or assignee of the-landlord.

Our conclusion from the foregoing is that the trial justice-erred in dismissing the proceedings, and that the judgment appealed from should be reversed and a new trial ordered, with costs to the prevailing party to abide the event.

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

Bookstaver, J., concurs.