author: Daly, Ch. J.

text:
    Alexander McSorley, Resp’t, v. James A. Faulkner et al., App’lts.

      (New York Common Pleas, General Term,

      Filed April 4, 1892.)

    1. Contract—Implied—Use oe telephone.
    Plaintiff sold out his business to defendants and left on the premises a telephone which he had rented. It appeared that defendants used said telephone during the whole period covered by plaintiff’s contract with the company, and plaintiff was obliged to pay therefor. Held, that a promise on the part of the defendants to pay for such use would be implied, and. that plaintiff was entitled to recover therefor.
    ,2. Same—Evidence. .
    The value of such use is properly shown by testimony of the plaintiff, based upon what he had paid himself and Ms knowledge of what others paid Persons hiring and using telephones in their business are competent to testify to the value of such use.
    Appeal from the judgment of the justice of the eleventh district court in favor of plaintiff against defendant for fifty dollars, and costs.

      Johnston & Johnston, for app’lts; Mooney & Shipman, for resp’t.
   Daly, Ch. J.

Upon the former appeal in this action it was held by the general term of this court that the plaintiff was not entitled to recover upon the facts then shown, viz.: That the plaintiff sold to defendants the business conducted by him at 1151 Ninth avenue; that in the premises at the time of the sale was a telephone which had been previously placed there by the Metropolitan Telephone & Telegraph Company under a contract with the plaintiff by which he was to pay monthly for its use for a stated period not then expired ; that after defendants went into possession the telephone remained in the premises, and was used for the whole period (but by whom did not appeal-), and that plaintiff paid the company for such use fifty dollars, and then brought this action to recover that sum from defendants as upon their implied request to pay for the use of the instrument.

It was held by the general term that, as the plaintiff made the original contract with the company, and defendants were not privy to it, and were not under any liability to pay the company.; that in the absence of proof that the telephone was left in the premises ■at defendants’ request, or that its use was necessary to, or was connected with the business, or that there was any agreement between the parties in relation thereto, or that the defendants ever used ¿he instrument, the plaintiff was not entitled-to recover from them what he had to pay the company; and the judgment in plaintiff’s favor was reversed, and a new trial was ordered. McSorley v. Faulkner, 38 St. Rep., 802.

Upon the second trial it was shown that the defendants from the time they took possession of the premises used the telephone constantly for the whole period covered by the plaintiff’s contract with the company. At the close of the plaintiff’s case, the defendants moved to dismiss the complaint, and the plaintiff moved to conform the pleadings to the proof of a cause of action upon an implied contract for using the telephone as belonging to the plaintiff. The plaintiff’s motion was granted, and after the proofs on both sides were in the justice rendered judgment in plaintiff’s favor for fifty dollars, and costs.

The ruling of the previous general term has settled the law of the case that the plaintiff has not shown himself entitled to recover upon the ground originally claimed in the complaint, viz.: an implied request to him by defendants to pay the company for their use of the instrument; for there was wanting the basis of such implication, i. e., a primary liability of the defendants to the company, and a compulsion of law upon the plaintiff growing out of the acts of the defendants, (and not out of his own independent contract), to make the payment sued for. The company may have had the option to hold the defendants for the use of the telephone • and the services rendered in operating it for their benefit upon an implied promise to pay for such services, but this would have been an option to terminate the contract with the plaintiff, and would have discharged him, for the two contracts could not subsist together; and any payment by plaintiff thereafter in behalf of defendants would have been voluntary and not recoverable against them. First Nat. Bank of Ballston v. Board of Supervisors, 106 N. Y., 488-494; 11 St. Rep., 150.

But the contract was not terminated by the company, and the plaintiff remained the licensee of the instrument and' entitled to its use, and to the services of the company in transmitting communications through their office during the whole period of his contract.

The use by defendants of the instrument and of these services-was a use of the plaintiff’s property, and it"would seem just and reasonable to imply a promise on their part to pay the plaintiff for such use. They are chargeable with notice when they found the instrument upon the premises which plaintiff transferred to-them, and when they began and continued to use it, that such use was not gratuitous but involved an obligation of the licensee of the company to pay, and that they were enjoying the rights for which he vras paying or was liable to pay. A duty to make him compensation arose from the circumstances and a contract to do so will be implied. ‘^In this sense contract is co-ordinate and commensurate with duty; and it is a familiar principle of the law which has a wide, though far from a -universal application, that whatsoever it is certain that a man ought to do, that the law supposes him to have promised to do. ‘Implied contracts,’ says Blackstone (vol. 2, p. 443), 1 are such as reason and justice dictate and which, therefore, the law presumes that every man undertakes to perform.’ These contracts form the warp and woof of actual life.” 1 Parsons on Contracts, 4.

The absence of the essentials of ordinary contract relation will not affect the liability. “ There is a class of cases where the law prescribes the rights and liabilities of parties who have not in reality entered into any contract at all with one another, but between whom circumstances have arisen which make it just that one should have a right and the other should be subject to a liability similar to the rights and liabilities in certain cases of express contracts. * * * Implied, or constructive, contracts of this nature are similar to the constructive trusts of courts of equity, and, in fact, are not contracts at all. Addison on Contracts, 22. And a somewhat similar distinction is recognized in the civil law where it is said: 1 In contracts it is the consent of the contracting parties which produces the obligation ; in quasi contracts there is not any consent. The law alone or natural equity produces the obligation by rendering obligatory the fact from which it results. Therefore, these facts are called quasi contracts because without being contracts they produce obligations in the same manner as actual- contracts.’ 1 Pothier on Obligations, 113. * * * So obligations aro created, in consequence of frauds, or negligence, and in either case the law compels reparation and permits the tort to be waived, but there is no contract.” People v. Speir, 77 N. Y., 144-150.

The defendants by using the telephone constantly in their business must have intended one of two things; to pay the person entitled to the use of the instrument as licensee the fair value of such use which they engrossed in their business, or to defraud him. In neither case can an implied contract to pay be justly or lawfully denied.

It is not essential to the rights of the plaintiff to recover that he should have assented to the use of the instrument by defendants or even have known of it. Rider v. Union I. R. Co., 28 N. Y., 379. In that case the plaintiff left with the defendant certain property in the expectation that they would purchase it. The managing agent of the company found it on the premises, and having use for it in the business of the company took the responsibility of using it. It was held that, notwithstanding the fact that plaintiff did not give, nor intend to give, the use of the same to the defendant, the law implied an agreement by defendant to pay plaintiff the value of the use while the same was used in its business.

A number of cases are cited by appellants but none conflict with the view here taken of defendants’ liability. There is no analogy between this claim and the claim for use and occupation of real property where the conventional relation of landlord and tenant must be shown, 113 N., Y., 442 ; 22 St. Rep., 723 ; 45 Minn., 249 ; 42 N. W. Rep., 202; 41 St. Rep., 141 ; 2 KB. Rep., 213; 2 Atl. Rep., 97 ; 24 W. Dig., 149, or for the usé of a patented device, which is an infringement upon a right and not the taking of property, 23 Ct. Claims R., 477, or for work voluntarily performed, 80 Me., 500, or payments voluntarily made, 117 N. Y, 168; 27 St. Rep., 165, or a claim based upon estoppel, 28 St. Rep., 346, or an action at law by a sub-contractor against the owner for the value of materials furnished to the contractor and used by the owner, which was in effect the nature of the claim made in Hogan v. The City of Brooklyn, 52 N. Y, 282; or an action by a lessor against a lessee for an extra use of Croton water measured by a water meter, where the covenant on the part of the lessee was to pay only the regular annual charge for Croton water. 50 Supr. Ct. (J. & S.), 211.

It is, however, contended that the claim here made is analogous to that discountenanced in Loyd v. Fox, 1 E. D. Smith, 101, where plaintiff, having been tenant of certain premises in the city of New York, under a hiring for a year, paid the charge for the use of the Croton water for that year, and having given up possession after four months occupancy, and the premises having been re-let by the landlord for the residue of the year, claimed payment of the new tenant for the use of the Croton water for the unexpired period of eight months. But the plaintiff had no property in the water, nor in the pipes upon the premises, and when he abandoned possession necessarily relinquished all his right; and defendant could not be held upon any implied promise to pay plaintiff for what plaintiff could not use or enjoy himself. But in this case plaintiff had the right to remove the telephone instrument and connect it wheresoever he removed to, and defendants, in enjoying the benefit of it while it remained upon the premises, were using the exclusive and undoubted property of the plaintiff.

Objection is ngiade that there was no sufficient proof of the value of the use of the telephone during the peried, four months, sued for. The plaintiff testified that it was worth $12.50 per' month. It appears that his knowledge of the value was founded upon what he paid himself and knew that others paid. It is-not easy to see what other, or better, evidence of value could be produced. Appellants do not suggest any. Persons hiring and using telephones in their business are competent to testify to the value of such use.

The judgment should be affirmed, with costs.

Bischoff and Pryor, JJ., concur.


source: Caselaw Access Project

author: .Pryor, J.

license: Public Domain

text:
    Thomas Grieve, App’lt, v. James S. McGovern, Resp’t.

      (New York Common Pleas, General Term,

      Filed April 4, 1892.)

    Replevin—Assignment for creditors—Sale.
    After a'sale of goods which was invalid for want of delivery the vendors made a general assignment for creditors, and the assignee gave a bill of sale of said goods to plaintiff, who was a bona fide purchaser. In an action to replevin the goods from the marshal, who had levied thereon, the-latter defended by virtue of an execution in favor of M. against said, assignors. Held, that defendant, by justifying under the execution which was levied on the goods as the property of said assignors was estopped to-say that they were the property of M.; that being the goods of the assignors they passed to the assignee, and that plaintiff by showing his bill of sale and demand established hjs right to recover.
    Appeal from judgment of the seventh district court in favor of plaintiff.

      Joseph Martin, for resp’t; J. G. Julius Langbein, for app’lt.
   .Pryor, J.

The appeal is by the plaintiff from a judgment of seventh district court in an action of replevin. Both parties claim title under the Nimmos, the original owners of the chattels, the plaintiff by virtue of a bill of sale from the Nimmos’ general assignee ; the defendant as city marshal, by virtue of an execution against the Nimmos at suit of one Mullen.

As the assignment by the Nimmos and the sale to the plaintiff antedated the judgment and execution in favor of Mullen; the-question is, did the plaintiff get title by his purchase from the assignee ?

The proof is that, prior to the assignment, the Nimmos sold the goods to Mullen, of which fact the assignee had seasonable notice. If the assignee had no right to transfer, .the plaintiff, though a purchaser bona fide and for value, got no title, unless his other contention be tenable, namely: that the Nimmos’ sale to Mullen was void for defect of delivery of possession. And this appears to be the fact.

Then, the question recurs: did the chattels pass to the assignee? The trial judge found that they did not so pass; but why? Because they had already become the property of Mullen. But, the defendant seeks to justify the taking only upon Mullen’s execution; and that execution levied upon the goods as the property of the Nimmos. Plainly the defendant is estopped to say that the goods are the property of Mullen, in an action in which he depends exclusively on the ground that they are the property of the Miramos, the judgment debtors.

True, that by § 1723 of the Code, a defendant in replevin may “ defend on the ground that a third person was entitled to the chattel, without connecting himself with the latter’s title; ” but the difficulty here is, that the defendant has pleaded no such defense, but has planted himself upon a ground which necessarily precludes recourse to such defense.

Eliminating from the litigation Miramos’ sale to Mullen, the question again recurs, did the plaintiff get title by his purchase from the assignee ?

The plaintiff is a purchaser bona fide and for value. The assignment was general, and included all the chattels of which the assignors were owners. The assignors were the owners of the goods in controvesy, because of the utter invalidity of the sale to Mullen; and the defendant is estopped to say otherwise, by reason of his levy on the goods as the property of the assignors, and of his omission to plead the jus tertii. The plaintiff, by. showing title and due demand, established his right to recover.

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

Bischoff, J., concurs.


author: Bischoff, J.

text:
    James F. Markham, Resp’t, v. William T. Washburn et al., App’lts.

      (New York Common Pleas, General Term,

      Filed April 4, 1892.)

    1. Principal and agent—Ratification.
    Plaintiff was employed by one who was acting as attorney for the defendants, to sell certain property for a specified compensation. After the contract of sale of said property was executed one of the defendants agreed to pay plaintiff the sum so specified. In an action to recover said compensation, it was claimed that the attorney was not authorized to employ plaintiff. Held, that an intention to ratify such employment was shown by the promise of the defendant to pay him-the sum which the attorney had agreed should be paid for his services.
    %. Trial—Exceptions.
    A joint exception to a refusal of a joint motion to dismiss the complaint or direct a verdict does not present error if the ruling was correct as to one of the defendants.

      8. Same.
    A point raised on the trial, but abandoned, is not available on appeal.
    Appeal from a judgment of the general term of the city court •affirming a judgment in favor of plaintiff, entered upon the verdict of a jury, and an order denying defendants’ motion for a new trial. Action to recover for services rendered as broker in the sale of real estate.

      Daniel P. Mahony, for resp’t; George Bell, for app’lts.
   Bischoff, J.

Executors and trustees, in the absence of an agreement exempting them therefrom, are personally liable upon contracts entered into by them for services to be rendered on behalf of the trust estate, Mygatt v. Wilcox, 45 N. Y, 306; Ferrin v. Myrick, 41 id., 315, and if it appear that plaintiff’s employment by Wood was authorized, or ratified by defendants, he is entitled to recover against them personally.

Defendants were the executors of, and trustees under the last-will and testament of Benjamin Richardson, deceased, and as such sold the premises No. 16 West One Hundred and Thirty-Second street, which formed a part of their testator’s estate, to one Peter Smith, for sixteen thousand two hundred and fifty dollars. It was conceded that the sale was effected through plaintiff’s instrumentality, and the latter claimed to have rendered the services-culminating in the sale at the request of one Horace Gh Wood, who professed to be acting for the defendants, and to have authority from them. Wood was an attorney and counsellor .at law, as such having charge of defendants’ affairs. To sustain his-claim, plaintiff testified that before the sale was effected Wood agreed to pay him for his services one-half of the purchase money realized over sixteen thousand dollars, in addition to a commission of one per cent.; that he thereupon procured Smith as a purchaser, and that shortly after the executory contract of sale was-entered into between defendants and Smith, Mrs. Richardson, one of the defendants, promised to pay the one-half of the excess over sixteen thousand dollars realized, forthwith, and the remaining one hundred and sixty dollars as soon as the contract had been performed. Plaintiff admitted that one hundred and sixty dollars-had been paid him, and the claim in suit was thus reduced to one hundred and twenty-five dollars, for which he recovered judgment.

Defendants denied Wood’s authority to employ the plaintiff and to bind them by any agreement to that effect. No evidence-was adduced for the plaintiff tending to establish such authority at-the time of the employment, and none could be inferred from the mere fact that Wood represented defendants in his profession as an attorney and counsellor at law. Unless, therefore, the evidence presents a subsequent ratification by the defendants of plaintiff’s employment by Wood, defendants’ motion for dismissal of the complaint should have been granted.

Ratification, however, is not required to be shown by such facts and circumstances as would create a technical estoppel. It is-enough if the person to be charged has, with full knowledge of the facts, unequivocally manifested an intention to adopt the previously unauthorized act in his behalf as his own, Keeler v. Salisbury, 33 N. Y., 648, 652; Butler v. Stocking, 8 id., 408, and such an intention is apparent from defendant Richardson's promise to pay plaintiff the sum which Wood had agreed should be paid him for his services. If the jury chose to credit plaintiff’s testimony in this respect it is not within our province in appeals from the city court to say that such credit was given against the weight of the evidence. Arnstein v. Haulenbeek, 16 Daly, 382; 34 St. Rep., 297.

True, this testimony did not show a ratification by the defendant, Washburn, but unless there is apparent upon the record a valid exception to the refusal of the trial court to dismiss the complaint or to direct a verdict, the defendants will be deemed to have conceded the sufficiency of the evidence, and to have acquiesced in its submission to the jury, and they will not thereafter be heard to complain that the verdict was against the evidence or without any evidence to support it. Barrett v. Third Ave. R. R. Co., 45 N. Y, 628, 632.

Such motions were made and denied, and the rulings were excepted to by the defendants, but the insufficiency of the exceptions is' apparent, if it be remembered that the evidence of Mrs. Richardson’s ratification of Wood’s agreement with the plaintiff rendered a denial of the motions proper as to her, and that the motions were not made for each defendant separately, but for them jointly. The rulings being thus proper as to one of the defendants the' joint exception thereto does not present error, though it be conceded that the ruling should have been otherwise respecting the other defendant if it had been severally requested as to him. Murray v. Usher, 117 N. Y, 542 ; 27 St. Rep., 928 ; Bosley v. N. M. Co. et al.,, 123 N. Y, 551, 557; 34 St. Rep., 277. This applies equally to' the exception taken to the denial of defendants’ motion to strike out so much of plaintiff’s testimony as purported to relate to a conversation with Wood on the ground of its immateriality and irrelevancy.

Next, appellant’s counsel contends that Wood’s promise to pay one-half of the purchase money above $16,000 was secured by plaintiff by means of his fraudulent concealment of the fact that the purchaser had indicated his readiness to offer a greater sum for the property than that reported by the plaintiff, and that plaintiff was not entitled to recover for that reason. This point, however, was attempted to be raised on the trial and then abandoned, and is, therefore, not now available. Neither do we think that the evidence will bear the construction contended for.

Several other exceptions appear in the case, but are not specially urged, and we, therefore, refrain from noticing them any further than to say that upon their examination we fail to perceive any error calling for reversal.

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

Booicstaver and Pryor, JJ., concur.


author: Pryor, J.

text:
    James Cunningham, Resp’t, v. Annie L. Hatch et al., App’lts.

      (New York Common Pleas, General Term,

      Filed April 4, 1892.)

    Mechanic’s lien—Withdrawal of deposit on default—Return of, on OPENING DEFAULT.
    Where upon a default in an action to foreclose a mechanic’s lien the defendant withdraws the money deposited to discharge the lien, the court upon opening the default may properly direct the return of the deposit.

      Appeal from order at special term directing return of money to the county clerk.

      John A. Grow, for resp’t; G. S. Wilkes, for app’lts.
   Pryor, J.

On the 19th of April, 1889, the plaintiff duly ac■quired a mechanic’s lien on property of the defendants. On the 15th of July, 1889, the defendants discharged the lien by a deposit with the county clerk. On the 24th of February, 1890, the plaintiff commenced this action to enforce the lien, but failing to appear at the trial, judgment by default was entered dismissing his complaint. Thereupon the defendants withdrew the deposit from the clerk’s office. But, on application to the court at special term, the plaintiff was relieved of his default, the judgment against him vacated, and the defendants ordered to return the deposit to the clerk. From this order the appeal is taken.

So much of the order as vacates the default judgment was allowed in the discretion of the court; and upon the papers before us we do not perceive any abuse in the exercise of that discretion.

The contention is over the provision in the order which directs the return of the deposit by the defendants. But this, too, being matter of discretion, Coster v. Peters, 7 Rob., 386; 4 Abb., N. S., 53, we cannot countermand the return of the deposit unless manifest justice ■ so require. On the contrary, the interests of justice plainly demand the restoration of the deposit.

By the payment into the office of the county clerk, plaintiff’s lien on the property was extinguished; and the papers show that he has no other resource for the satisfaction of his claim except the fund to which his lien is transferred. The withdrawal of the money by the defendants was the consequence of their judgment ; and that judgment being vacated, they have no authority to retain the money. On the other hand, the action being reinstated, the plaintiff has a right to a return of the security which he lost only by a default from all the effects of which he is exonerated.

The single point urged by appellant against the order is that it “ is unauthorized without a trial and judgment of ownership.” The argument would be valid and convincing if the order required payment to the plaintiff; but, since its only effect is to return the deposit into the clerk’s office, to abide the event of the litigation, no question of ownership arises, or is determined by the order. Defendants’ property in the fund cannot be affected except by a judgment for the plaintiff; and before that is attained they will have ample opportunity to protect their rights. To suffer defendants to retain the money would be to adjudicate the right without a trial.

Present discussion of the proper procedure to enforce the order of restitution is premature.

Order affirmed, with costs.

Bischoff, J., concurs.


author: Per Curiam.

text:
    Ellen Wall, Adm’rx, App’lt, v. B. H. Jones et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Master and servant—Negligence.
    Plaintiff's intestate, while working for defendants in a building which they were erecting, was struck by a brick which fell from the upper part of the building, and killed. Negligence was claimed on the ground that the scaffold on which the masons worked was not of the proper width and that there was no flooring over the floor beams; but there was no evidence as to where the brick came from. Held, that there was nothing to show that the falling of the brick was caused by negligence of the defendants.
    Motion for new trial by the plaintiff, on exceptions ordered to-be heard in the first instance at the general term, after a nonsuit.

      C. J. Bidgioay, for the motion; F. O. Gredney, opposed.
   Per Curiam.

In July, 1889, the defendants were engaged in the erection of a building at Fourteenth street and Broadway in the city of New York, and on the 13th of July the deceased was in the employ of the defendants and at work upon said building, and while so employed was struck upon the head by a brick which fell from the upper part of that building, and killed. The-claim upon the part of the plaintiff was that the injury occurred because of the negligence of the defendants, and the manner in which the work of constructing the building was carried on, in that the scaffold upon which the masons were working was not of the proper width, and that there was no flooring over the floor' beams which had been put in place upon the several stories of the building.

The difficulty with the plaintiff’s case is that there is no evidence whatever from whence the brick which fell and killed the plaintiff’s intestate came. One witness says he supposes it came from the scaffold. Another witness saw it falling from the sixth story ; another says that he saw it falling from the wall upon the seventh story, and another that it came from the seventh story wall, and that he supposed the scaffold must have been overloaded, and one of the bricks came off the scaffold. This is all the evidence tending to show how the brick came to fall. For aught that appears, it may have been thrown down by one of the workmen, or it may have dropped from the hands of one of the workmen.

There is nothing to show that the falling of the brick was caused by negligence upon the part of the defendants. Without this proof there was no evidence upon which the jury could find a Verdict in favor of the plaintiff. Therefore, it is not necessary to discuss the question as to whether under any circumstances the plaintiff could recover.

The only hesitation that we had in coming to this conclusion arises from the fact that the learned judge who presided at the circuit ordered the exceptions taken to be heard in the first instance at the general term. The case seems to be so plain that wé do not see how it was possible for the judge presiding at the circuit to have had any doubt as to the correctness of the ruling such as would justify his ordering exceptions to be heard in the first instance at the general term.

The exceptions should be overruled and judgment ordered for the defendants, with costs.

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


author: Van Brunt, P. J.

text:
    Dennis Sullivan, Resp’t, v. Clarence H. Venner et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Cobpoeatiors—Injunction.
    An injunction should not be granted at the suit of a director and officer of a corporation to prevent the holding of a meeting of the board without a quorum, where the only serious and irreparable injury to plaintiff by the action of the meeting would be the discontinuance of a suit brought by the company against some of its directors without authority of the board.
    Appeal from order denying injunction pendente lite.

      S. B. Clarke, for app’lts ; D. McClure, for resp’t.
   Van Brunt, P. J.

This action is brought by the plaintiff, a stockholder and director and one of the vice presidents of the American Water Works Co. of Hew Jersey, and it is claimed that the defendants propose to hold an irregular meeting of the board of directors in that they intend to transact business without a quorum. The articles of incorporation of the association state what shall constitute a quorum, and for the purposes of this appeal it does not seem to be necessary for the court to enter upon a discussion as to whether the plaintiff or the defendants are right in their contention .as to what will constitute a quorum, for the reason that ail the acts of the board of directors if a quorum is not present are necessarily void, and are therefore not binding upon the plaintiff.

It seems to be well settled that under such circumstances the1 court will not interfere, and that the plaintiff must show in his complaint the manner in which he will be prejudiced, and unless that appears in some distinct form it will not interfere. As was stated by Andrews, J., in McHenry v. Jewett, 90 N. Y., 62 : “ It is not sufficient to authorize the remedy by injunction that a violation of a naked legal right of property is threatened. There must be some special ground of jurisdiction, and where an injunction is the final relief sought, facts which entitle the plaintiff to this remedy must be averred in the complaint and established on the hearing.”

The case of Thomas v. The Musical Mut. Prot. Union, 121 N.Y., 45 ; 30 St. Rep., 563, is an example of this principle. /In that case the plaintiff moved to have certain by-laws of the corporation declared void, and to restrain its directors from enforcing the same against him. The court held that the invalidity of the bylaws was not a ground of equitable jurisdiction in itself, and that the plaintiff would have other adequate means of redress in case the directors, notwithstanding the invalidity of the by-laws, proceeded to enforce them against the plaintiff. The court say in its opinion that courts do not sit for the purpose of determining speculative and abstract questions of law or laying down rules for the future conduct of individuals in their business and social relations, but are confined in their judicial action to real controversies wherein the legal rights of parties are necessarily involved and can be conclusively determined. It is obviously not fit that the power of the court should be invoked in this form for every theoretical or speculative violation of one’s rights, and that it is a cardinal rule of equity that it will not entertain jurisdiction of a case where there is an adequate remedy at law, or grant relief unless for the purpose of preventing serious or irreparable injury.

Nothing of this kind is shown in the complaint at bar. In fact it would appear that the only serious and irreparable injury which could be done to the plaintiff by the action of a meeting of an incomplete board of directors would be the discontinuance of a suit brought apparently by the American Water Works Co. against .some of its directors, which discontinuance if ordered would have far greater authority than the suit had for its institution, the same having been brought without there ever having been even a pretended meeting of the board of directors.

We think that the plaintiff wholly fails to show any ground for the interposition of a court of equity, as the evils which he .anticipates are imaginary, indefinite and undetermined.

The order should be reversed, with ten dollars costs and disbursements, and the injunction vacated, with ten dollars costs.

O’Brien, J., concurs.


text:
    In the Matter of the Account of Henry A. V. Post, Adm’r.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Appeal—Case—Requests to find.
    Where the party presenting requests to find succeeds before the referee so that no judgment or decree is entered against him upon the referee's report, but appeals from an order which refuses to enter a decree upon, such report, he is not entitled to insert in the case his requests to find where the same have been refused.
    Appeal from order of the surrogate denying motion for leave to file certain requests to find and exceptions to refusals to find by the referee.

      F. W. Hinricks, for app’lt; J. C. O'Conor, Jr., for resp’t
   Per Curiam.

The appellant presented to the surrogate a ■petition asking that H. A. Y. Post, as administrator of Edwin Post, be required to account, and an order was entered by the ■surrogate directing said administrator to file his account. The said account, and exceptions thereto, were referred to a referee, .and the referee filed his report directing that the proceedings be ■dismissed, on the ground that the statute of limitations was a bar, and also on the ground that said administrator could not be compelled to account for the trust funds in the proceedings before him.

Numerous requests to find were submitted by the petitioner, which were passed upon hy the referee, many being refused, and some found; and the petitioner filed exceptions to the referee’s-report and also to the refusal of the referee to find as requested.

Upon a motion for the confirmation of such report, the surrogate refused to confirm the report, sustained the exceptions thereto,, and ordered that the matter and all papers and proceedings therein he referred back to the referee to proceed with the accounting, and from that order the administrator has appealed to this court

The papers upon which the surrogate made that order are recited in the order, and no mention is made of the requests to find submitted to the referee, or of the exceptions to the action of the referee upon such requests.

It is clear that the appeal from this order must be heard upon the papers upon which the order was made; and as these requests to find and exceptions' to the rulings of the referee upon such requests are not recited in the order as papers upon which the order was granted, they cannot be considered upon the appeal from the order by this court.

There appears to be no provision for filing requests to find upon which a referee has passed. On an appeal, however, from a judgment or decree entered upon the report of a referee, the party presenting such requests, where he is appellant,- has a right to review the action of the referee in refusing his requests to find, and for that purpose can insert in the case on appeal or hill of' exceptions his requests to find, and the ruling of the referee-thereon. But where the party presenting such requests succeeded before the referee so that no judgment or decree is entered against him upon the referee’s report, as in this case, but appeals from an order which refuses to enter a decree upon such-report, he is not entitled to insert in the case or the papers-upon which the appeal is heard his requests to find where the-same have been refused, as there is no appeal before the court presenting the questions raised by the rulings of the referee-against the successful party before him.

We think, therefore, that the order of the surrogate was right, and should be affirmed, with ten dollars costs and disbursements.

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


author: Per ' Curiam.

text:
    W. Howard Gilder, Chairman, App’lt, v. John H. Davis et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Brokers—Commissions—Option to purchase.
    Defendants were authorized hy plaintiff to obtain a purchaser for' certain lands at a specified price. They procured a person who paid $10,000 for an option to purchase within four months, hut no contract was entered into nor was the option exercised. Reid, that defendants were not entitled to any commissions, and had no right to retain their percentage out of the moneys paid for the option.
    Appeal from judgment entered upon dismissal of complaint atatircuit.

      W. Ml Safford, for app’lt; M T. Bartlett, for resp’ts.
   Per ' Curiam.

This action was brought to recover the sum of $500, which had been retained by the defendants out of moneys received for an option to purchase certain lands in Kansas City, which the defendants had been authorized by the plaintiff to obtain a purchaser for at a price which was fixed in the agreement between the parties. At the close of the testimony the plaintiff - moved for the direction of a verdict in his favor, and the defendants moved for a dismissal of the complaint, thus submitting to the court for its determination any question of fact that may have arisen upon any dispute upon the evidence in the case. This judgment should, therefore, be affirmed, unless upon the undisputed facts the plaintiff was entitled to recover.

An examination of the correspondence between the parties and the original contract authorizing the defendants to sell, shows clearly that, by the former, the arrangement in regard to the payment of any commission which, under the contract itself, the defendants were to receive upon finding a purchaser who would pay the agreed sum of $125,000, was modified by consent by an agreement by which the payment of any commission was to be dependent upon the option being exercised and the full amount required to be paid under the option being finally paid to the plaintiff.

It will thus be seen that the condition necessary and essential to the defendants’ right to receive any commission was not present .and the subsequent failure of the purchasers to avail themselves ■of the option for which they had paid the $10,000 to the defendants was déstructive of the defendants’ right to obtain any compensation under the terms of his agreement, for the reason that the final payment, as therein provided upon the purchase of the land, was never made.

But by the original agreement under which the defendants claimed the commission on the facts proved, they were not entitled to recover. By that agreement they were authorized to proceed with negotiations looking to a sale of this property at a price not lower than $125,000 in cash to the plaintiff; it being understood that the defendants were to receive a commission on such sale of five per cent. No such sale was, however, contracted for or consummated, and the plaintiff never received the $125,000 in cash, upon which the defendants were to obtain a commission of five per cent. Nor did the defendants ever produce a purchaser able and willing to contract to purchase at that price. What they did obtain was a person who would pay $10,000 for the option to purchase within four months, which option was never exercised or a binding contract made.

We are, therefore, of opinion, that the judgment should be reversed and a new trial ordered, with costs to appellant to abide ■the event.

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


text:
    Albro Akin, App’lt, v. Alfred J. Luce, Resp’t

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Joint adventure—Rights of parties to.
    A mere refusal by one party to a joint adventure to contribute any part, of the capital to carry it on, even if unjustifiable, only authorizes the other party to refuse to go on with the adventure and to terminate the-relations between them; it will not authorize the other party, after availing himself of the services of the party failing to contribute, to deprive him of his share in the piofits realized upon the adventure.
    Appeal from interlocutory judgment entered on trial at special term.

      J. M. Bowers, for app’lt; L. J. Morrison, for resp’t.
   Per Curiam.

The principal ground of the appeal in this case seems to be based upon the claim that there was no evidence to sustain the direction for judgment in the interlocutory decree, the , latter being in contradiction to the findings. Upon an examination of the record we can see no support for this claim. The court has found the contract between the parties, has found what, was done under this contract, and his conclusions of law have fixed the. rights of the parties in accordance with these findings.

The claim of the plaintiff seems to be that because the defendant has in his judgment failed to make the contributions to the-joint adventure which in law he was bound to do, that therefore the plaintiff has a right to all the proceeds of the adventure.

We are not aware- of any rule of law which imposed such a penalty upon a party failing to comply-with all the requirements-of an agreement involving a joint adventure. In the case of a copartnership the mere failure to contribute the capital agreed to be paid in by one of the parties does not deprive him of the right, to participate in the profits of the business if it is carried on even by the capital of his copartner.

The failure to contribute such capital undoubtedly gives a right. to the copartner to terminate the copartnership. But he may not. carry on the business and avail himself of the services of the partner failing to contribute, and then claim all the profits arising because of such failure to contribute.

In the case at bar the facts disclose a joint adventure between the parties to this action. The defendant contributed certain services, and made certain expenditures, and the plaintiff contributed the capital by which the adventure was to be carried on to a successful termination.

It is true that the defendant-refused to contribute any part of the-capital required to carry on the enterprise, basing his claim upon a denial of any obligation so to contribute. But this refusal in noway prevented him from participating in the profits which might, arise from the successful termination of the joint adventure. The only right which such refusal, if unjustifiable, conferred upon, the other party was to refuse to go on with the adventure, and to terminate the relations under the agreement between them; but the plaintiff having availed himself of the services of the defendant. in the procuring of the contracts which formed the subject-matter of the joint adventure, he cannot now, because of his failure to contribute his proportion of the capital required, deprive the defendant of all the profits realized upon the joint adventure.

We think, therefore, that the judgment was right and should be affirmed, with costs.

Yah Bruht, P. J., and O’Brieh, J., concur.


author: O’Brieh, J.

text:
    William Hill, App’lt, v. The Mayor, etc., of New York, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    1. Hew York City—Wharves and piers—Dumping ground.
    While the original creation in 1881 of a dumping ground on pier 13, East river, may not have been authorized and may have been illegal under the act of 1875, its use after the passage of the consolidation act was legalized, and it was thereafter proper to designate such pier for such purposes.
    3. Same—Laws 1883, oh. 435; Laws 1889, ch. 509.
    The words “heretofore been used” in Laws 1883, ch. 435, and Laws 1889, ch. 509, refer to the period immediately preceding the passage of those acts, and their provisions have no application to a pier which was used as a dumping ground at those times, and not by sailing vessels engaged in free or foreign commerce.
    3. Same—Designation op pier.
    In the absence of evidence that the west side of said pier was exclusively used or required for the use of the vessels for which it was set aside under § 786 of the consolidation act, such designation cannot be held to prevent the free use of such pier.
    Appeal from a judgment entered at special term.

      Thomas O. Shearman, for app’lt; Edward H. Hawke, Jr.., and Chas. H. O'Neil, for resp’t.
   O’Brieh, J.

The action is brought to compel the removal of a dumping board, erected on the east side of Pier 12, on the Bast river, and to restrain the city from permitting the board to be used for dumping purposes, on the ground that the existence of such dumping board is a public nuisance, which causes special injury to the plaintiff.

The grounds upon which the learned trial judge dismissed the complaint upon the merits, are fully given in the findings and opinion. As we agree in the conclusion reached, it is only necessary to briefly supplement what has been so well and fully stated by the trial judge.

The main proposition of the appellant is, that such use of a dumping board being a public nuisance, from which special injury results to the plaintiff, that it is only where express legislative authority is given for its maintenance that it can be justified. We do not dissent from this view of the law, but applying the same to the case as presented, reference being had to the several acts which bear upon the subject, we think that therein is to be found express authority for the use and maintenance on the half of the pier in question of such dumping board.

The act of 1875 (chapter 249, § 3) in express terms prevented the use as a dumping ground of any wharf, pier or slip in the' navigable waters of the East river as theretofore used for the loading and discharging of sailing vessels regularly employed in foreign commerce. It having been made to appear that pier 12 had been so used by sailing vessels, this act prohibited its use as a dumping ground.

The Law of 1881, chapter 367, by its fourth section, expressly authorized the use of slips, piers, and berths in slips, for the use. of the street cleaning department, “excepting slips, docks and piers on the East river set apart for the use of canal boats.”

By the twelfth section of this act of 1881 “ all other acts and parts of acts inconsistent herewith ” were repealed.

It is insisted by the respondents that the repealing clause in the act of 1881 resulted in the repeal of so much of the act of 1875 as exempted this pier from use as a dumping ground. Were this a material question in the case, we should be inclined to hold that it had no such force and effect, for the reason that there is no such inconsistency between the two acts as would require, for the carrying out of the act of 1881, that the act of 1875 should be considered as repealed thereby. As intimated, however, this is neither material or essential to the disposition of this case, for though it might be urged that at the time when the pier was appropriated to the purposes of a dumping ground no express authority existed, and therefore that the original designation of the pier, and the use thereof as a dumping ground, was unauthorized, yet it will be found upon an examination of the subsequent legislation that such use was legalized. This dumping ground was estab' lished in 1881. Subsequent thereto all the laws, local and special, relating to the city of New York, were consolidated into one act, known as chap. 410 of the Laws of 1882.

Sections 706 and 728 of said act are substantial re-enactments of the Law of 1881, which permitted the use of wharfs, piers and slips as a dumping ground, excepting such as were exempt by other special provisions of law. The act of 1875 was also included in the consolidation act, and re enacted as § 773, but with a very, important and significant modification. It was therein provided, § 773, as follows;

“ It shall not be lawful to interfere with the free public use as now enjoyed, or, except as in this act otherwise specially provided, to permit the use as a dumping ground of any wharf, pier, slip, or bulkhead adjacent thereto, * * *which has heretofore been used for the loading and discharging of sailing vessels, etc.”

It will thus be seen, that the legislature having in mind the two provisions, §§ 706 and 728, which permitted the use of wharfs, piers or slips as a dumping ground, excepting slips, docks and piers on the East river set apart for the use of canal boats, that the literal re-enactment of the act of 1875 would have created another exception in favor of piers, wharfs or slips which had heretofore been used for the loading and discharging of sailing vessels.

By the language added to the Law of 1875, as re-enacted in § 773 of the consolidation act, viz.: “ or except as in this act otherwise specially provided,” we have a clear, legislative declaration that the prohibition which exists against the use as a dumping ground, of piers, wharfs or slips used for the loading and discharging of sailing vessels, should not take away the right to permit the use of such piers for that purpose, for the reason that such permission and use was otherwise specially provided by the preceding §§ 706 and 728.

In our judgment therefore, the effect of the re-enactment of all these laws in the consolidation act was to permit the use of the west side of pier twelve as a dumping ground.

While therefore the original creation of a dumping ground on the pier may not have been authorized, its use after the passage of the consolidation act was thus legalized, and it was thereafter proper to designate such pier for such purposes.

By chapter 435 of the Laws of 1883, chapter 249 of the Laws of 1875 was amended as follows:

It shall not be lawful to interfere with the free public use as now enjoyed, or to permit the use as a dumping ground of any wharf, pier, slip or bulkhead adjacent thereto, in the navigable waters of the East river, in the city of New York, which has heretofore been used for the loading and discharging of sailing vessels regularly employed in foreign commerce.”

By chapter 509 of the Laws of 1889, § 773 of the consolidation act which has already been referred to was amended as follows:

It shall not be lawful to permit the use as a dumping ground, of any wharf, pier or slip, or bulkhead adjacent thereto, in the navigable waters of the East river, in the city of New York, which has heretofore been used for the loading and discharging of sailing vessels regularly employed in free commerce, etc.”

While no doubt may exist as to what would have been the effect of the laws of 1883 and 1889 if such laws were in exist-5 ence when the dumping ground was created in 1881, the application and effect of such laws must be determined with reference to the use which had been made of the west side of pier 12 since 1881. It will be noticed that in these laws (1883 and 1889) the prohibition is restricted to such a wharf, pier or slip, “ which has heretofore been used for the loading and discharging of sailing vessels, etc.”

The question, therefore, remains as to the construction to be given to these words, “ heretofore used.”

As to the true meaning to be applied to these words, we are not permitted to speculate in view of the decision of the court of appeals, which has expressly passed upon the meaning of this language.

In the case of the People v. The Baltimore & Ohio Railroad Company, in the 117th New York, Judge Gray, at p. 158 (27 St Rep., 153), uses the following language:

“ The words, 1 heretofore been used,’ in the amendatory section of the act of 1883, should be taken in their usual and ordi- • nary sense and signification. Whenever the legislature has expressed its will in words having a common acceptation, and a plain, as contra-distinguished from a technical meaning, we must read them as they would be supposed to be used and understood generally. So read, 1 heretofore ’ would, to the ordinary mind, convey the idea of before this, time, that is to say, 1 hitherto,’ ‘down to this time,’ and not at all the idea of comprehending any remote time, in this or the last century. The construction which must convey the true intent of this legislative act is, that piers which have been in common and continuous use by sailing vessels, engaged in foreign commerce, of a drought of more than eighteen feet, shall continue open to that use. The manifest ob- . ject of making such a reservation was to prevent piers then" in such use, and hence, presumably much needed by the public, from being exclusively used by private persons or corporations.’’

The pier having, therefore, at the time been used as a dumping ground, and not by sailing vessels engaged in free or foreign commerce, the prohibition in the acts of 1883 and 1889 do not apply.

Our attention has also been called to §§ 786, 787 and 788 of the consolidation act, which designate the manner in which the west side of pier 12 should be used. It is provided in § 786 that, together with other piers, the west 'side of pier 12 shall continue to be set apart * * * for the use and accommodation of the regular packet lines of sailing vessels, propellers and barges, which on April 13, 1857, occupied berths on such other piers and on the west side of pier 12, and running to and from Boston to the other places in such section mentioned. No evidence, however, was offered upon the trial to show that any such regular packet lines which occupied berths on such pier in 1857 so occupied them down to 1881, or that they after 1857, and down to the time that the pier was designated as a dumping ground, continued to run to Boston and the other places mentioned in that act.

By § 788 it is provided that nothing in § 786 shall be construed to prevent the use of the waters and wharves, when such waters and wharves are not required for the use and accommodation of the vessels, boats and barges described in such section.

There being in the. case no evidence that the west side of the pier 12 was exclusively used or required for the use of the vessels for which the pier was to be set aside, we are forced by the direction in the act not to construe such designation as preventing the free use of such pier.

Upon an examination, therefore, of all the grounds relied upon, we do not think that any error was committed which requires that this judgment should be reversed, and it is accordingly affirmed, with costs.

Van Brunt, P. J., and Patterson, J., concur.


text:
    Elias S. Higgins, Pl’ff, v. The Mayor, etc., of New York, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    1. Abatement and revivor—Devisee of real estate—Action to determine claim TO.
    Where the plaintiff in an action to determine claims to real property has died after the vacation of a judgment against him, the action may he revived against a devisee of the subject matter of the suit, and he may he compelled, to proceed therein.
    2. Same—New trial.
    The devisee takes his devise subject to all its incumbrances, of which the pendency of the action is one, and cannot complain that the order of substitution deprives him of the right to a new trial, to which he would be entitled under the Code if the action had not been commenced by his predecessor.
    Appeal by Eugene Higgins from order substituting him as plaintiff herein, and requiring him to proceed with the action.

      A. P. Whitehead, for app’lt; F. J. Freedman, for resp’t.
   Per Curiam.

One Elias S. Higgins brought an action against the mayor to compel the determination of á claim to certain real property situated within this city under the provisions of § 1638 of the Code. The plaintiff was defeated in the action and afterwards on motion the judgment in favor of the defendant was vacated pursuant to the provisions of §§ 1525 and 1646 of the Code. The plaintiff paid all the costs of the judgment. The plaintiff having died and having devised the subject matter of the suit to one Eugene Higgins, this motion was made under § 757 of the Code to substitute Eugene Higgins, his devisee, in his place and compel him to proceed with the action. Against the objection of said Eugene Higgins the court made the order which is appealed from.

The principal ground urged in support of the appeal is that no case can be found in which the devisee of a deceased plaintiff has been compelled to come into court against his will and liti- » gate the title to lands.

Section 757 of the Code provides that in case of the death of a sole plaintiff or a sole defendant, if the cause of action survives or continues, the court must upon a motion allow or compel the action to be continued by or against his representative or successor in interest.

Eugene Higgins has beyond question succeeded to the interest of the deceased plaintiff in the subject matter of this action, and would therefore seem to come within the provisions of this section of the Code. It cannot be that litigations which are instituted by the owners of real estate for the purpose of determining the claims thereto can be relieved from all the effects of such litigation, provided they have not been finally determined, by reason of their death. There can be no question that, had the said Eugene Higgins, the devisee of the plaintiff, elected to proceed with this action, he would have been entitled as a matter of right to have been substituted, and to have derived all the benefits which might have accrued from a favorable adjudication thereon.

Now, can it be said, because the adjudication has been adverse, that therefore.he cannot be brought in as the successor in interest and be bound by such adjudication ?

The claim that the order appealed from deprives the appellant of a new trial of this action, which he is entitled to under the provisions of the Code had this action never been commenced by his predecessor in title, does not seem to have any weight, because when he takes the devise, he takes it subject to the incumbrances which his predecessor placed upon it, and one of these incumbrances is the pendency of this action brought to determine a claim of title to that property.

The appellant seems to come clearly within the provisions of the Code, and therefore the order was properly made and should be affirmed, with ten dollars costs and disbursements.

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


text:
    Andrew J. Wightman, Pl’ff, v. Henry Schliefer, Def’t.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Dower—Release.
    A release of dower by a wife directly to her husband will not divest dower so as to enable the husband to convey a good title by his sole deed. If effectual at all, on the delivery of such release the husband becomes owner of the property and the wife becomes entitled to her dower therein.
    Submission of controversy on agreed facts, pursuant to § 1279 of the Code.
    The plaintiff and defendant entered into an agreement in writing whereby defendant agreed to sell to plaintiff certain real estate in New York city, free from all incumbrances, except as to a mortgage. Defendant tendered a deed made by defendant, containing full covenants, conveying to plaintiff said premises free and clear of all incumbrances except said mortgage, and at thé same time also tendered a release of dower in said premises made to the defendant by his wife prior to the date of aforesaid deed. Plaintiff refused to take title, claiming that the premises were incumbered by defendant’s wife’s dower, in that the release of dower should have been made to defendant’s grantee, and was void if made direct to defendant, or that defendant’s wife should have joined in the deed to plaintiff, otherwise defendant could not convey full and clear of all incumbrances.

      J. E. Pidgeon, for pl’ff; Q. E. Bruce, for def’t.
   Per Curiam.

Assuming that the release from the defendant’s wife to the defendant, executed Novémber 13, 1890, was at all effectual, on the delivery of that release the defendant became the owner of the property, and his wife became entitled to her dower therein. The right of dower does not depend upon any agreement between the parties, but is an incident of an estate in fee simple. The moment such an estate vests in'the husband, the wife’s inchoate right of dower attaches thereto, and such right of dower existed at the time of the attempted conveyance by the defendant to the plaintiff.

The plaintiff is therefore entitled to judgment, with costs.

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


author: Patterson, J.

text:
    Margaret Sistare, Resp’t, v. Austin Hecksher, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Deed—Fraud.
    Plaintiff, while entertaining a visitor, was taken aside by her husband, who appealed to her to deed certain property to defendant with the assurance that it was a mere matter of form and that if it were done money would be advanced to aid his firm in extricating themselves from embarrassment. In pursuance of this appeal plaintiff conveyed the property, but in fact the conveyance was to serve as security for an existing indebtedness of the firm. Held, that the deed was procured hv undue influence and should be set aside, although defendant did not authorize the husband to make the representations or procure the deed in said manner or did not know of it.
    Appeal from a judgment entered at special term in an action to set aside a conveyance on the ground of misrepresentation and fraud.

      James G. Janeway, for app’lt; Henry S. Bennett, for resp’t.
   Patterson, J.

We see no reason for disturbing the judgment here appealed from. The merits of the controversy are decidedly with the plaintiff, and the findings of the learned judge in the court below are abundantly sustained by the evidence. All the circumstances surrounding the execution and delivery of the deed; the suddenness of the demand or appeal made upon the plaintiff by her husband to rescue his firm from an impending peril; the assurance to her that it was but a matter of form; tho added representation that if the property were conveyed to. the defendant money would be advanced to aid the firm of Sistarc k Go. in extricating themselves from embarrassment; the further fact that all the details for a transfer of this property from tho plaintiff to the defendant had been previously arranged by Mr. Sistare and the defendant or others, under the advice of counsel and without the knowledge of the plaintiff, who, totally ignorant of her husband’s condition or what was in contemplation, wq.s appealed to while entertaining a caller at her house; taken aside while her visitor was waiting and then induced to consent, and above all, so far from the purpose of the transfer being to secure the defendant for advances then or thereafter to be made, it being merely to serve as security for or payment of an indebtedness already existing of Mr. Sistare’s firm to persons represented by the defendant; all these circumstances and facts clearly indicate that there was but one course to be pursued by the learned judge, and that course he followed. The deed was obtained by undue influence, and in a certain sense by coercion, and seems to have been executed and delivered under circumstances and conditions quite similar to those in Barry v. Equitable Life Assur. Society, 59 N. Y., 587, where an assignment by a wife of policies of life insurance was pronounced to be invalid.

It is not material that the defendant did not authorize the husband to make the representations or procure the execution of the deed in the manner above referred to, or did not even know of it. The real question is as to what was actually done and said by Sistare in procuring the conveyance. As was remarked by Lord Eldon in the great case of Huguenin v. Baseley, 14 Vesey, 273, “ I should regret that any doubt could be entertained whether it is not competent to a court of equity to take away from third persons the benefits which they have derived from the fraud, imposition or undue influence of others.” See also Whelan v. Whelan, 3 Cow., 537; Bergen v. Udall, 31 Barb., 9.

The learned counsel for the defendant has strenuously argued that the fraud set up here consisted only in promissory representations, and that as it is a well settled rule that a mere failure to perform a promise in consideration of which land or other property has been transferred, does not furnish of itself evidence of fraud in the transaction, this suit cannot be maintained. It is unnecessary to consider either the statement made of the rule or its application to abstract cases, for we are fully satisfied in the case at bar that under all the proven facts as properly found by the court below, justice requires this conveyance to be set aside; that Mrs. Sistare did not intend to convey her property to pay or secure her husband’s past due debts and obligations, or those of the firm of which he was a member, and that the controlling influence of her husband over her, at the time and under the circumstances of the execution of the deed, makes out, with the other facts above referred to, a proper case for relief.

There are exceptions in the record raising other questions, but it is unnecessary to consider them in detail. The objection to the admission of the testimony of the plaintiff as to what took place between her husband and,herself at the conversation of March 15, was properly overruled. It was part of the res gestee, and thus admissible. Potts v. Hart, 99 N. Y., 168.

The judgment must be affirmed, with costs.

Yan Brunt, P. J., concurs.


author: Yan Brunt, P. J.

text:
    Walton C. Tiffany, App’lt, v. William M. Norris, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    1. Judgment—Partnership agreement—Breach.
    A complaint in an action to vacate a judgment recovered upon a note given on the dissolution of partnership on the ground that defendant has, since procuring the same, violated certain provisions of the articles of dissolution and disabled himself from performing the same, but which contains no allegation of performance by plaintiff, is insufficient,
    3. Same—Pleading.
    An answer in such an action setting up the appointment of a receiver of defendant’s property, Held, good on' demurrer.
    Appeal from judgment overruling demurrer to portions of answer.

      JJ. D. Sherman, for app’lt; A. R. McMahon, for resp’t.
   Yan Brunt, P. J.

This action was brought by the plaintiff • to have declared void and of no effect a judgment recovered in this court against him by the defendant; the claim being that the judgment was obtained upon a promissory note given by the plaintiff to the defendant upon the dissolution of a copartnership j and that since the procurement of such judgment the defendant has violated certain of the provisions of such articles of dissolution, and that he has disabled himself from performing the agreement on his part. The answer denied the breaches alleged upon the part of the plaintiff and set up for a second defense that the plaintiff had a complete remedy at law if any cause of action existed, and for a third defense that prior to the commencement of the action a receiver had been duly appointed of the real and personal property of the defendant, who had duly qualified and entered upon the discharge of his duties.

The plaintiff demurred to the second and third defenses upon the ground that each of such defenses is insufficient in law upon the face thereof. Upon the argument of this demurrer, in addition to the grounds stated in the demurrer, it was claimed by the defendants that the facts stated in the complaint did not constitute a cause of action of any kind ; and that it was radically and incurably defective. The demurrer having been overruled, from the interlocutory judgment thereupon entered this appeal is taken.

It seems to be sufficient for the disposition of this appeal to call attention to the fact that not only is there no allegation that the plaintiff has performed his part of the agreement, but it seems to be expressly admitted that he has not so done; as although having given the note upon which the judgment is obtained, it is admitted that he has not paid the same, which is as essential a part of the agreement upon the part of the plaintiff as anything that was agreed to upon the part of the defendant.

It is an elementary principle that in order to entitle a party to have any relief because of the breach of an agreement by another party thereto, he must allege and prove that he is not in default himself. It appears upon the face of these papers that this plaintiff was the first to commit a breach of his contract; and notwithstanding such breach he claims to enforce it as against the defendant.

The grounds upon which the demurrer was overruled are also tenable. All rights of action in respect to the property of the defendant had been vested in the receiver who had been appointed and had entered upon the discharge of his duties.

We think, therefore, that the judgment was right and should be affirmed, with costs.

Ingraham and O’Brien, JJ., concur.


text:
    The United Lines Telegraph Co., App’lt, v. Hugh J. Grant, Sheriff, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Taxes—Electbic companies—Action to bestbain collection.
    A telegraph company assessed under chapter 499, Laws 1885, for the expenses of the subway commissioners has ample remedies at law, and cannot maintain an action to restrain the collection of the assessment on the ground of the illegality of the act because it has lost its right of review in the manner provided by the laws of the state.

      Appeal from judgment entered upon decision of the court at. special term dismissing the complaint.

      A. W. Kent, for app’lt; S. W. Bosendale, for resp’t..
   Per Curiam.

The question presented on this appeal was determined by this court in the case of the Postal Telegraph Co. v. Grant, Sheriff, 33 St. Rep., 997. In that case the action was. brought to obtain a judgment declaring the acts under which the assessment in this case as in that case was made, void because of unconstitutionality and perpetually enjoining the-defendant from executing the warrant of the comptroller, and the-court held that the action would not lie, because the plaintiff had not brought itself within any acknowledged head of equity jurisprudence, that all the remedies at law were open to the plaintiff, and that this court would not entertain jurisdiction because the plaintiff had lost its right of review in the manner provided by the laws of this state.

As the facts in the case at bar are identical with the facts presented to the court in the case cited, it follows that the judgment was right and must be affirmed, with costs.

Van Brunt, P. J., and Ingraham, J., concur.


text:
    Alberto H. Caffee, Pl’ff, v. William Ottman et al., Def’ts.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    •Contract—Breach—Acceptance—Evidence.
    In an action for Breach of a contract for the manufacture and sale of goods to plaintiff, the defense was an acceptance of the goods. Evidence was given tending to show that on delivery of the goods defects were found, but that an employee of defendants’ testator, who had charge of the negotiation, urged plaintiff to keep them, stating that he would find a purchaser for them and make another lot for plaintiff, and that any money paid out would be paid back besides his profit. This evidence was stricken out on motion. Held, error; that plaintiff had a right to show the facts and circumstances under which he received the goods.
    Motion for new trial, the complaint having been dismissed and exceptions ordered to be heard in the first instance at general term.
    The action was for damages for alleged breach of an executory contract, without warranty, to manufacture 40,000 packs of comic-playing cards, over ten thousand of which were delivered to the plaintiff, many of which he sold and none of which he offered to return.

      I. D. Warren, for app’lt; A. G. Pox, for def’ts.
   Van Brunt, P. J.

This action was brought against an executor to recover damages for an alleged breach of an executory written contract entered into by his testator and the plaintiff to-manufacture certain merchandise; the plaintiff alleging that the deceased failed to keep his contract in every respect, and that he suffered damages to a large amount, for which he prayed judgment

The defense relied upon seems to have been that the plaintiff by receiving the cards, offering them for sale and selling large quantities of them, accepted them and no cause for damages for the alleged defects which were confessedly visible on inspection survived the acceptance, and this seems to have been the ground on which the ruling of the court below was based.

It appears that all the conversations in reference to this contract were had with one Bonnier, an employee of the deceased, and it is claimed by the plaintiff that whatever receipt of the goods there might in fact have been, resulted from an arrangement entered into between Bonnier, claiming to represent the deceased, and the plaintiff which did not amount to an acceptance of the goods.

The evidence of what took place between Bonnier and the plaintiff was excluded, and hence the goods having been received and partially sold by the plaintiff, the court held that there had been an acceptance under the contract, and their palpable failure to comply with the contract formed no basis for this action.

We think this was error. The plaintiff had a right to show the facts and circumstances under which he received the goods in question. As already stated all the conversations in reference to this contract were had with Bonnier. In fact. Bonnier was held out to plaintiff as the confidential employee of the defendant. It was to him that the plan upon which this merchandise was to be manufactured was divulged by the plaintiff and it was according to such divulged plan that the contract was to proceed.

Upon the tender of the goods and the examination of the same, the plaintiff declared to Bonnier that the goods did not come up to the contract, specifying the defects, and that Bonnier replied that he didn’t know that they did not come up to the contract, but added, “ Don’t hold us too closely to thatthat he knew a party who would take them all off the plaintiff’s hands at once, and that he would sell every one of them for him and get another order for more cards, and that the plaintiff told him he would have nothing to do with it as it stood, and that Bonnier pressed the plaintiff, because his name was printed upon the merchandise, and they could not sell it, to offer the same for sale, and promised that they would make another lot for the plaintiff.

It was under these circumstances that the cards were accepted, as far as they were accepted, and offered for sale, Bonnier stating that all their expenses they would see him paid, and whatever money was paid out they would see them paid back and return besides his profit.

It is true that this latter testimony was stricken out. But it is to be considered upon the question as to whether the motion to dismiss was properly granted.

We think it was error to strike out testimony of this character. It is apparent from the evidence that Bonnier was the alter ego of the deceased, that he had charge of this business, and whatever representations he made to the plaintiff in order to get him to take possession of the goods was competent upon the question whether he had received them without objection so as to deprive him of his right to claim damages for the breach of his contract.

It certainly would be establishing a harsh rule to hold when an employee is presented to a contracting party with the apparent authority to take charge of a negotiation, and proceeds with it to the very end, that the principal when he is sought to be charged with the acts of the employee should be allowed to say: “ You. must prove express authority from me for the employee to bind me.” In all departments of mercantile business employees occupying particular positions are presumed to have the authority to do all that is customarily done in those positions, and it is the application óf this rule to the relations of Bonnier to the deceased that makes his declarations and acts evidence. If the defendant was alive he could not testify to any transaction he had with the plaintiff. He seems to have been by upon one or two conversations, but nothing was said to him or by him. . The whole business was transacted by Bonnier by and with his authority, and such business was not terminated until the acceptance of these cards by the plaintiff. Any complaint which the plaintiff had to make in respect to the goods would be under the circumstances naturally made to Bonnier, as he was the only person with whom, he had any dealing, and he naturally supposed when he refused to receive these cards any statements made to induce acceptance were made with authority.

We think therefore that the motion for a new trial should bel granted, with costs to plaintiff to abide the final event

O’Brien and Patterson, JJ., concur.


text:
    Sarah R. Meeteer, Resp’t, v. The Manhattan Railway Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    1. Negligence—Damages.
    It is error, in an action for personal injuries, to allow the jury to award damages for the future effects of the injuries, where the evidence simply shows that they were likely to be permanent, and not that there was a reasonable certainty that they would be so.
    2. Same—Evidence—Chaege.
    It is error in such a case to refuse to charge that the jury, if they saw fit, might reject the whole or any part of plaintiff’s testimony as to how the accident happened, or the nature and extent of the injuries, because she was interested in the result, especially where the court has already charged that they were not bound by the expert testimony.
    8. Same.
    It is error for the court to refuse to charge that the jury were not to consider the fact of the refusal of the court to dismiss the complaint as any indication of the opinion of the court as to the facts of the case.
    Appeal from judgment entered upon verdict and from order denying motion for new trial.

      J. H. Adams, for app’lt; F. M Barnard, for resp’t.
   Per Curiam.

The action was brought to recover for injuries sustained by the plaintiff while a passenger on defendant’s elevated railroad through the alleged negligence of the defendant.

The question which has been principally urged upon this appeal relates to the amount of damages which were awarded, and which it is claimed were based upon an erroneous theory as to the evidence which was necessary to justify a finding that the injuries caused by the accident were of a permanent character. In the reception of evidence, and in the efforts made to exclude what was regarded by the defendants as incompetent evidence, and in the charge of the court, the effect was to some extent to permit the jury to understand that they were at liberty to award damages for injuries which were likely to be permanent, instead of , confining their verdict to damages for such injuries as would with reasonable certainty be permanent

It is not necessary for us to go over the entire testimony to point out the different instances in which such rulings were made. But as an illustration, Dr. Dana, an expert called for the plaintiff, was asked by the court the following question: “Gan you say with reasonable certainty whether this injury is likely to be permanent?” And the witness answered: “ I can.” He was then asked: “ Is it or is it not likely to be permanent ? ” To which he answered: “ It is likely to be permanent in the sense that it will improve somewhat, but she is not likely to ever get entirely over it.”

The same witness was also asked: “ Q. Gan you say with reasonable certainty whether this disease tends to shorten life or not ? A. I can say that

“ Q. Does it? A. In many cases it does.”

The counsel for defendant excepted to the answer and moved to strike it out as incompetent and improper. ' The court denied the motion and defendant excepted.

The court in the charge said: “ If you consider she has been permanently injured you may award compensation for that.” And when defendant excepted to this portion of the charge the court said : “ When I say if you consider, I mean if you consider from the evidence ?” In view of what had preceded, to which attention has been called, it is evident that sufficient weight was not given to the true rule that should be applied in regard to giving damages for permanent personal injuries in cases of this kind. Furthermore, it appears from the record that counsel for the defendant requested the court to charge that the jury, if they saw fit, might reject the whole or any part of the plaintiff’s testimony as to how the accident happened, or as to the nature and extent of her injuries, because she was pecuniarily interested in the result

This the court declined, except as charged. And it appears from a reading of the charge that the court did not instruct the jury at all as to their right to reject the plaintiff’s testimony because of interest; but simply left the questions at issue upon the evidence, leaving the jury to infer that they were bound to consider the evidence of the plaintiff as of equal weight with that of any other witness. And this view is emphasized by the fact that in reference to the expert testimony he expressly charged the jury that they were not bound by such evidence.

The counsel for the defendant also requested the court to charge that the jury were not to consider the fact of the refusal of the court to dismiss the complaint as any indication of the opinion, of the court as to the facts of the case. This the court declined and ■defendant excepted.

We think that the court should have charged as requested, for the mere fact that the court held that it was bound to submit the question of fact to the jury was no indication that, if the court had been at liberty to determine the questions, it would have determined them in favor of the plaintiff. It was only an indication that in the opinion of the court there was some evidence tending to support the claim of the plaintiff.

The judgment should be reversed and new trial ordered, with costs to appellant to abide event

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


author: O’Brien, J.

text:
    Albert M. Palmer, Rec’r, App’lt, v. David F. Colville et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    T. Supplementary proceedings—Receiver—Proof op appointment.
    The production and proof of an order appointing a receiver in supplementary proceedings is conclusive evidence of the regularity of the order and of the appointment when questioned collaterally, and prima facie evidence of the existence of the facts necessary to confer jurisdiction.
    '3. Same—Countermand op execution.
    Where a receiver has been appointed by a court having jurisdiction, q countermand of the execution subsequent to such appointment will not render the order void until it has been vacated by the judge or court in which the proceeding is pending; and subsequent orders extending the receivership to other judgments, before the order making the appointment has been vacated, will prevent the receiver from losing any right to recover possession of the debtor’s property because of any act of the original judgment creditor.
    Appeal from judgment of special term entered upon a dismissal of the complaint

      B. S. Harmon, for app’lt; H Thompson, for resp’ts Colville and .another; T Hascall, for resp’t Colville’s executors.
   O’Brien, J.

The plaintiff brought this action, alleging himself to be a receiver appointed in supplementary proceedings, to procure satisfaction of an alleged equitable lien impressed upon a lease of property in this city, to have himself declared entitled to the possession thereof, together with the books, paperá and contracts connected therewith, and to have defendants account and pay over all moneys that may be found due to the judgment debtor.

It will thus be seen that the action was brought not only to enforce a lien against real estate, but also involved the right of the plaintiff to recover personal property in the possession of the defendants belonging to the judgment debtor.

The ground upon which the complaint was dismissed was because the proceedings supplementary in which he was appointed having been brought in aid of an execution, proof was not furnished that the execution was not outstanding at the time the proceeding was commenced and the order appointing the receiver made.

It was held by the court of appeals in the case of Wright v. Nostrand, 94 N. Y., 45, that the production and proof of an order made by a court or judge authorized by law to make it in proceedings supplementary to execution, reciting the facts necessary to give such court or judge jurisdiction to act in the proceedings, furnishes conclusive evidence of the regularity of such order when questioned collaterally, and prima facie evidence of the existence of the facts necessary to confer jurisdiction. The plaintiff produced on the trial an order made by a justice of the city court requiring the judgment debtor to appear before him on the 25th of February, 1886, to make discovery on oath concerning his property, which order was based upon an affidavit that recited the recovery of a judgment against the debtor, the issuing of an execution to the sheriff of the county of New York where the judgment debtor resided; that said execution had been returned unsatisfied; that said judgment remained unpaid, and that the judgment debtor has property which he unjustly refuses to apply towards the satisfaction of the judgment, and that such property was so kept by the said debtor that it could not be identified and-with ordinary diligence reached by execution. Upon the return-day of that order the judgment debtor appeared and was examined before the justice. Such examination disclosed the existence of property consisting of a lease of real estate, certain plays, and the scenery used in producing the plays valued at about $800 r and at the close of the examination an order was made by the justice before whom the examination was had appointing a receiver of the property of the judgment debtor.

Upon the authority of Wright v. Nostrand, supra, the production and proof of this order was conclusive evidence of the regularity of the order and of the appointment of the receiver when questioned collaterally, and prima fade evidence of the existence of the facts necessary to confer jurisdiction. The plaintiff, therefore, proved the valid appointment of the receiver, and by operation of law such receiver thereby became vested with the personal property, including the choses in action belonging to the judgment debtor.

Conceding that the defendants had the right to show that at the time of the appointment of the receiver the execution upon which the proceeding was based had been countermanded, the burden was upon them to show such fact; and if we can take notice of the execution that was offered in evidence by the plaintiff and rejected by the court upon defendant’s objection, the plaintiff had the right to show that the countermand of the execution was after the appointment of the receiver. And we think that if the court had jurisdiction to appoint the receiver at the time the order appointing him was made, a countermand of the execution subsequent to such appointment would not render the order void until it was vacated by the judge or the court in which the proceeding was pending; and the subsequent orders made after the appointment of the receiver, extending the receivership to other judgments, before any order had been made vacating the appointment and before the commencement of this action, would prevent the receiver from losing any right to recover possession of the property because of any act of the original judgment creditor who obtained his appointment.

It seems to us, therefore, as was said in Wright v. Nostrand, supra, that the orders of a court or judge authorized by law to act in such a proceeding must be presumed to be regular until annulled in a direct proceeding to review or set them aside; and that such orders, so far as they recite the facts necessary to confer jurisdiction upon the court or judge to move in the proceedings, furnish prima facie evidence of the existence of such facts.

If, therefore, the receivership was extended to other judgments, the mere fact that the execution on the original judgment was countermanded should not result in destroying the title of the receiver. This must follow from an examination of the provisions of the Code, which do not leave it entirely at the will of the original judgment creditor to determine whether a receiver once vested with the property of the judgment debtor shall be divested or not, because by the provisions of the Code where one receiver is appointed, subsequent judgment creditors in proceedings supplementary must, instead of obtaining a new receiver, have the receivership already in existence extended so as to include their judgments.

We* think, therefore, that the countermanding of the original execution upon which the order appointing the receiver was based after the appointment of the receiver and before the receivership had been extended did not divest the receiver of his rights to the debtor’s property so that the right of such subsequent judgment creditors to have such receivership extended to their judgments was lost, and that when extended the receiver was vested with the ■title to the judgment debtor’s property.

We are therefore of opinion that the judgment appealed from should be reversed and a new trial ordered, with costs to the appellant tq abide the event

Ingraham, J., concurs.


author: Lewis, J.

text:
    Mary Kiefer, Adm’rx, App’lt, v. The Grand Trunk Railway Co. of Canada, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892)

    ‘Depositions—Extension oe time—Teems.
    The time for taking the depositions of witnesses on open commission was extended by consent, and thereafter proceedings in the action were stayed for over a year. At the expiration of the stay, defendant having refused to extend the time within which the report might be made, plaintiff applied for an order of extension, which was granted on condition of payment of costs which plaintiff had been directed to pay on opening a default. On the motion defendant showed no reason why the commission should not be executed. Held, that it was error to impose the payment of such costs as a condition of granting the order.

      Appeal from so much of an order of the Erie county special term as imposed terms upon plaintiff as a condition of extending the time within which a commissioner appointed by the court to execute an open commission might execute the same.

      J W. Bussell, for app’It; Qeorge F. Brownell, for resp’t
   Lewis, J.

This action was commenced in January, 1884, to recover for the negligent killing of the plaintiff’s intestate.

On January 31, 1890, on motion of the plaintiff, an order was made that an open commission issue to Walter S. Jenkins, of Buffalo, authorizing him to examine witnesses to be produced on the part of the plaintiff and any witnesses that might be produced on the part of the defendant, on or before the 7th day of April, 1890, in the city of Toronto, Canada. On March 22, 1890, the attorneys entered into a written stipulation extending the time within which the commissioner was directed to execute the commission to September 20, 1890, and an order was duly entered on March '24, 1890, so extending the time. From July 8, 1890, down to October 23,1891, the proceedings in the action were stayed by various orders obtained by the defendant, with the exception of intervals of a very few days. Shortly after October 23, 1891, the plaintiff’s attorney applied to the defendant’s attorney for a stipulation extending the time within which the commissioner might make his report. The defendant’s attorney requested the plaintiff to wait a few days for a final answer to the request, and on November 16, 1891, 'the defendant was again requested to make .a stipulation for the taking of the testimony, which request was declined, and thereupon this motion was made for the order appealed from. The special term granted the order extending the time to take the testimony to and including January 25, 1892, upon condition, however, that the plaintiff pay to the defendant’s .attorney within ten days from the entry of the order, §107.72, together with interest thereon from December 15, 1887, and also $10 motion costs. These sums had been theretofore directed to be paid by an order of the Erie special term May 14, 1890, as a condition of opening a default taken by the defendant dismissing the plaintiff’s complaint The plaintiff never complied with the order of May 14, 1890, so far as the actual payment of the sums of money named. But it was held by this court in the decision of ■an appeal from an order made in the action after the order of May 14th,11890, that the payment of these sums as a condition of opening the default had been waived by the defendant, and that ¡the plaintiff was relieved from a compliance with that part of the •first order. The question presented by this appeal is whether the terms upon which the order was granted were proper.

The order granting the open commission we must assume was ■proper, and while it appears that the plaintiff allowed considerable ■time to elapse after the granting of the -order, without taking the testimony, before the expiration of the time the defendant stipulated to extend it to September 20th, following. The plaintiff’s attorney was not thereafter guilty of loches, for he took steps looking to the taking of the testimony as soon as the stay was removed. The date originally fixed as the limit for the taking of the testimony having passed, it became necessary to fix another day. Section 897, Code of Civil Procedure.

No reason was shown by the defendant at the hearing of the motion why the commission should not be executed, and to that end another date fixed for the taking of the testimony, and there would seem to be no reason for imposing any terms as a condition of granting the order appealed from. It certainly was not proper for the court to impose such onerous conditions on granting the order. The stay orders mentioned were orders staying all proceedings in the action, and prevented the taking of the testimony during the life of the orders. The plaintiff is indebted to the defendant in the sums fixed as conditions for the granting of the order, but that furnishes no reason for requiring their payment as a condition for granting the order appealed from.

The order should be reversed, with ten dollars costs and disbursements of the appeal.

Dwight, P. J., and Macomber, J., concur.