author: Van Wyck, J. Clement, Ch. J.

text:
    Charles Gotthelf, Resp’t, v. James S. T. Stranahan, App’lt.

      (City Court of Brooklyn, General Term,

      Filed May 27, 1892.)

    Specific performance—Deed—Assessments levied during adjournment OF COMPLETION.
    Plaintiff contracted to purchase a plot of land from defendant, and made deposit of $2,000. The date of completion was February 9lh, hut there being squatters on the lands, the time was extended, from time to time, by consent, until May, to enable defendant to remove them. In the meantime assessments had beun levied for improvements to the streets which were ungraded when the contract was made. Defendant refused to give a deed with covenant against incumbrances as of May 4th, hut tendered one with such covenant as of the original date. Held, that under the contract as extended plaintiff was entitled to a deed free from incumbrances as of May 4th ; that there was no mistake, fraud or accident which would" relieve the vendor from specific performance; nor did such assessments. which amounted to eight per cent of the value of the land, create such inadequacy of consideration as to entitle him to relief on that ground.
    (Clement, Ch. J., dissents.)

      Appeal from judgment in favor of plaintiff in an action for specific performance of a contract for the sale of land.
    The facts appear in the opinion of Judge.Clement.
    • G. G. & F. Reynolds, for resp’t; George G. Dutclier (W. C. DeWitt,, of counsel), for app’lt.
   Van Wyck, J.

In, the division of the labor of our general term this cause was assigned to my learned associate to write the opinion therein. Differing in our conclusions, it devolves upon me to give the reasons for mine in favor of the affirmance of the judgment from which this appeal is taken. The trial court decreed specific performance, in favor of the vendee, of a contract for the sale of real estate, and the vendor complains of this decision on several grounds, which will be discussed hereafter. The judgment carries with it such weight as will cast upon the -appellant the task of showing that it is contrary to the rules of equity. The contract is the ordinary executory agreement dated January 7, 1891. It provides for the sale and purchase of certain city lands, having in view the division thereof by purchaser into many lots of 20 by 100 feet, for $22,500, to be, paid as follows, viz.: $2,000 on that date, and the balance on delivery of deed, $4,750 in cash, and $15,750 by mortgage containing a stipulation for the release of each lot from the lien thereof on payment of $400. It further provides that “ said sale and purchase shall be completed * * * on the 9th of February, 1891,” by delivery of the usual deed of warranty conveying the lands, “ title to be perfect in fee simple and free from incumbrance.”

There being no intimation of want of mental strength or business experience in either of the contracting parties, it must be assumed that both fully* understood and appreciated the terms of this simple and plain contract. Both, doubtless, thought they had made a good bargain. The words of the court in Seymour v. Delancy, 3 Cow.. 533, are not inappropriate. “ Every member of this court must be-well aware how much property is held by contract ; that purchases are constantly made upon speculation; and that the value of real estate is fluctuating, and that there most generally exists an honest difference of opinion in regard to any bargain, as to its being a beneficial one or not To say, when all is fair, and the parties deal on equal terms, that a court of equity will not interfere “ to compel specific performance, on the ground of inadequacy of price, or because the bargain is not a good one for one of the parties,” does not-appear to me to be supported by authority.” The contract herein discloses that the purchaser, with the relatively small capital of $6,750, bought the lands on speculation, and largely on the credit of seller, expecting to realize a profit by sales from time to time of separate lots, which the seller agreed to release from the mortgage • lien on partial payments. Assuming that this property was sold for its fair and full value, the refusal to decree specific performance would nullify the whole object and purpose of the purchaser after he had taken the risk of depreciation of the value of the land between the date of contract and the day of passing title. &

The vendor’s broker, before this contract was signed, told him that some assessments had been laid, and many assessments were to be levied on this property for improving these streets. Yendor says, in partial contradiction, “I have no recollection of that time; it might pass through my own mind. That is all I could say on the subject; that is all I recollect.”

In following the incidents of this transaction, it will be well to keep in mind that, after the contract was signed, all communications addressed to vendor were answered through agents.

January 9, 1891, two days after contract was signed, the defendant’s (vendor’s) agent, McCormick, wrote to plaintiff’s (vendee’s) agent, Bailey, that the buildings (some thirty-two in number) on the premises belong to the tenants, and conveyance should be made subject to their rights.

January 10, vendee’s agent, Bailey, wrote to vendor, “ If there are tenants on the premises, your contract requires you to remove them, and give possession to vendee.” _

At this time vendor.employed an attorney, Butcher, to attend to removal of tenants. Butcher visited vendee’s attorney, Garrison, two or three days after contract was signed, and asked him if he would accept title with tenants on the lands, and offered to allow $150 for it, giving as a reason therefor that vendor did not want his name connected with the removal of these poor people. The offer was refused, and Butcher was told $500 would not induce purchaser to accept it.

If Butcher, after this positive refusal-on January 9th or 10th of Garrison to accept his offer of $150 to take title subject to possession of tenants, had promptly taken steps to remove them, he could have done so long before the levying of the assessments hereinafter mentioned, which are the sole cause of complaint. Notwithstanding such refusal, Butcher waited till February 23 to-give notice to tenants to quit on or before March 1, and waited till April 16th to apply to court for a precept to remove them.

January 13th, a day or two after Butcher had been told the-tenants must be removed, McCormick, another agent of vendor, wrote to vendee’s agent, Bailey, that in the negotiation preceding-the contract it was understood that, “ in the discretion of the purchaser,” the tenants were to remain; that the tenants were thirty day tenants, and Butcher would so testify. Butcher did not so testify, for on the trial he said: “ I was in a good deal of a quandary what they were; ” these squatters came and went without consent or contract. Three' days before this letter, Butcher had been told vendee would not accept title subject to the rights of these squatters.

February 6th, vendee’s agent wrote vendor that there were defects of title that would have to be cured, and an adjournment might be necessary.

February 9th, time for completion of sale and purchase was extended to February 16th for curing such defects.

February 10th, vendee’s agent, Bailey, wrote vendor’s agent, Butcher, that purchaser insisted upon the"removal of squatters.

February 12th, time to complete purchase and sale was extended to March 10 to enable vendor to give possession.

March 2d, assessment on the premises of $901.13 for grading and paving Bush street was confirmed, and the commencement of the proceedings for the levying thereof must have considerably ante-dated the day fixed in the contract for the completion of the sale *nd purchase. See Brooklyn Charter, Laws 1888, chap. 583, tit. 19, §§ 2, etc. The vendor’s remonstrance might have defeated it. (Sec. 2.)

March 6th, Butcher writes, it is slow work to get off squatters, and intimates he will need further indulgence.

March 10th, time for completion of sale and purchase extended to April 1st

March 30th, time further extended to April 14th.

April 2d, vendee’s agent, Bailey, writes to Butcher complaining of his delay in removal of squatters.

April 13th, time for completion of sale and purchase was

extended to May 9, with the expressed agreement that it should

have the same effect as if it was written in contract originally, instead of February 9th.

April 28th, assessment on premises of $1,079.38 for grading and paving William street from Richards to Columbia street was confirmed. What has been said as to probable time of commencement of proceedings and effect of vendor’s remonstrance in relation to the other assessment applies to this one also.

These assessments were for improvements to be made, the nonexistence of which could have been observed by a view of the premises at the date of contract They became a lien at the respective dates of confirmation, March 2d and April 28th, and have a priority over all liens except those for taxes and water rates. Charter, Laws 1888, chap. 583, tit. 19, § 36. They amount to the sum of $1,980.51, which is about eight and one-half per cent of $22,500, the purchase price. If defendant is required to pay the assessments, he will realize eight and one-half per cent less than he would if plaintiff should be compelled to pay the same.

On May 4th vendor tendered deed of warranty free of incumbrances as of the date of February 9ill, the original date fixed in. ■contract for completion of sale and purchase, and demanded the balance of cash payment and mortgage. On May 4th vendee tendered the balance of cash and mortgage, and demanded deed of warranty free from incumbrances as that of date. The real dispute is that each party insists that the other should assume the burden of these assessments for $1,980.51. ' I believe my learned associate and myself are of the same opinion that the technical legal effect of this contract obligated the vendor to convey the premises free from incumbrances on May 4th. Any other construction of the terms thereof would lead to the absurdity that the vendor could have mortgaged or even sold the premises between February 9th and May 4th, and then tendered a conveyanee of warranty free of incumbrance as of February 9 th in full compliance with his contract My associate insists that equity should relieve the vendor from specific performance of his contract, according to its strict legal terms, because these assessments were levied between the date originally fixed in the contract and that fixed by subsequent agreement for the completion of the sale and purchase. I differ from him, and will now give the reasons therefor. One seeking, through the grace of equity, relief from his legal obligations should enter the tribunal clothed in the habiliments of equitable conduct in all his relations to the contract, and in his actions in the transaction. He who asks equity, must do equity. This vendor has had $2,000 of the vendee’s money since January 7, 1891. When he learned of these assessments, he did not offer it back, and request to be relieved from what he deems to be an inequitable contract, but he demanded of the vendee the enforcement thereof, minus the asserted objectionable and burdensome terms, tendering a deed to accomplish that purpose. On vendee’s refusal to accede to this demand, he retains the $2,000 without any expressed thought of returning the same. It is a reasonable inference that, at that time, vendee had been stayed from using his energy and limited capital for four months in other enterprises by having his cash tied up in possession of vendor and being subject to the heavy obligations of the contract which vendor then refused to perform.

When an equity court is asked to compel him to make specific performance of his legal obligations, he admits that he still has the money, and reiterates his demand that the vendee be forced to make specific performance of the obligations on 'his part, on the compliance of vendor with his obligations less those he deems inequitably burdensome, or, if this be denied, then, that vendee’s complaint be dismissed, without an offer to return the money, and with costs. (See defendant’s answer setting up counterclaim, and requests to find). I agree with the learned trial judge that both vendee and vendor demanded, in court as well as out of court, .specific performance of the contract, the former claiming that the day fixed for the completion of the sale and purchase was on or before May 9 th, and the latter that the day fixed was February 9th, and that his agent, Butcher, had no authority to agree to the later date. His authority was not doubted by the trial court.

The policy of equity jurisprudence has ever been to uphold the- validity and enforce the specific performance of the legal terms of a written contract between adult parties of sound contracting mental powers, unless sufficient shall be shown for the reformation, rescission or non-enforcement of same for fraud, mistake or accident, or something intimately allied to one of these three grounds of equity’s interference. Equity never yearns to make-new contracts for such parties in the light of subsequent events which would or might have led one of the parties to make a different and more beneficial contract for himself, or none at all. Chancery has refused, under certain circumstances, to compel specific performance of contracts which it would not reform or rescind, for fraud, mistake or accident, on the ground that the-inequity of doing so would shock the conscience, not of the party to the contract, whose judgment might be, and usually is, influenced'and warped by the bias of self interest, but the conscience of an impartial and indifferent person.

But, on a critical examination of all the reported authorities bearing on this point, it will be seen that the inequity meant is something closely akin to fraud, mistake or accident, which is variously characterized, in .numerous opinions, as an unfair, unjust and unreasonable contract, or as an agreement not free from fraud, misrepresentation, accident or mistake, or as a hard or unconscionable bargain which would work gross wrong.

This vendor can perform his contract and, therefore, it will not be necessary to consider the most numerous class of reported cases on specific performance involving the inability to perform. There is not the slightest insinuation of fraud against this vendee, or the suggestion of suspicion that he made any misrepresentation, or was silent in the face of moral duty to speak, which did or might have misled the vendor. There was no mistake of law or fact; the contract was a written one, the terms of which were plain and simple and well known to both, neither party has suggested that he did not thoroughly understand them, and I doubt very much if either of them would not deem it a reflection upon his business experience for anyone else to make such a suggestion. If the vendor did not bring his mind to the active state of guessing or anticipating the exact date when these assessments would be levied after the making of the contract, this can hardly be raised to the dignity of a mistake of fact. Any owner of Brooklyn real estate, and much more, an expensive one, knows of the liability of such levies, not only from the notice that the law gives, but from its frequent and constant application. Besides his attention was called thereto by his broker just before signing the contract, and he says “ it might pass through my own mind.”

. It is plain that fraud or mistake, or their kindred incidents, cannot be invoked to relieve, this vendor from specific performance of his contract. Was there such accident as can be sueessfully relied upon, is alone left for consideration. The definition of accident found in Pomeroy’s Equity Jurisprudence (1 Ed. § 823), is in accord with the adjudications of our courts. “ Accident is an unforeseen and unexpected event, occurring external to the party affected by it, and of which his own agency is not the proximate cause, whereby, contrary to his own intention and wish, he loses some legal right or becomes subjected to some legal liability, and another person acquires a corresponding legal right, which it would be a violation of good conscience for the latter person, under the circumstances, to retain.”

The partymust have “an equity intrinsically superior to that of his adversary, and unaffected by his own negligence or other fault.” Id., § 830. The assessments can hardly be said to have been unforeseen by this vendor. He, being a large owner of Brooklyn real estate, a man of large experience and acumen in business and municipal affairs for many years, had the notice that the law (the Brooklyn charter) gave him of the liability of such assessments, as well as the unpaved condition of the street; he had the notice that the law required advertisements of the proceedings to be published in the Brooklyn newspapers of the largest circulations, the notice that his own broker gave him, just before signing this contract, that assessments would be levied, and his own admission that “it might passthrough my own mind.” A person of ordinary experience and prudence can hardly claim surprise under such circumstances. There is no claim that the vendor .instigated the proceedings for these assessments, and, in in that sense, his agency was not the proximate cause thereof, but at best for him, it is an open question whether, with the notice of the liability of the levying of them, and the reasonable expectancy thereof involved therein, and his failure, under the circumstances, to make at least the effort to prevent the levy by remonstrance, under § 2, Charter, Laws 1888, chap. 583, title 19, he is not chargeable with being the cause thereof as between himself and the vendee, for one assessment was for grading and paving Bush street from Court to Dwight street, a distance of five blocks, and the other, William street from Richard to Columbia street, a distance of two blocks, so it is apparent that his remonstrance might probably have defeated them. The vendor was a witness and does not intimate in his testimony that he would not have made this exact contract, even if he had positively known, at the time contract was made, that these assessments would be levied before the day fixed in contract for completing sale and purchase, and there is no suggestion in any of the evidence that the vendor will not receive the full value of the land though he be compelled to pay these assessments. Will the retention of the advantage accruing to the vendee by the legal obligation of vendor to pay these assessments levied before the day fixed by agreement for the completion of sale and purchase be a violation of good conscience under "such circumstances? The vendor’s equity must be so intrinsically superior to that of the vendee, and unaffected by his own fault, as to shock the conscience. Pom. Eq. Jur., 1 Ed., § 830.

There is not a particle of proof that $22,500 is not a large price for this land; its full value, or more. Besides, it is a well known fact that the value of real estate cannot be estimated with such nice exactness as that of the ounce of silver, or standard articles of merchandise, as the barrel of flour or sugar. It is equally well known that the most expert appraiser of real estate would revel in pride if his estimated values always came within ten per cent, of the price the land would sell for, within a reasonable time, after the utmost diligence directed to that end. Under the proofs in this case, there is nothing to establish that the vendor would not, at least, realize the full value of his lands after paying these assessments. There is no evidence from which a probability can be inferred that he could sell it for $22,500 plus the assessments of $1,980.51. If there is no inadequacy of price, when measured with the true value, caused by the obligation of vendor to pay these assessments levied after date of contract, then the asserted claim of inadequacy is a mere refinement and not a substantiality, and the inequity based thereupon, which it is insisted would render specific performance a violation of good conscience, is a fanciful myth. This explains how the bias of self interest innocently induced this vendor to demand, both out of as well as in court, specific performance of every obligation of vendee, on the performance of only those obligations on vendor’s part which he, in his judgment, deemed perfectly equitable. This court has no power to make a more beneficial contract for him. The vendee starts out having in his favor the equities that are implied from having the legal rights on his side; also the equities growing out of the incidents to the transaction. He, with a limited capital of $6,750, on January 7th, bought lands in wholesale quantity at their full value of $22,500, parting at once with $2,000 of his cash capital, with the disclosed object of commencing on February 9th the retail business of selling it off lot by lot, with the express understanding that, as he did so, the grantor would release each from the lien of the purchase money mortgage of $17,750, on payment of $400. He is delayed in his enterprise without his fault till May 4, and then by the refusal of vendor to perform. For four months he is tied up by the obligations of his contract, subject to the risk of depreciation, and is deprived of the use, at least, of $2,000 of his cash, and prevented from retailing his lots.

It would seem that vendor’s alleged equity is not intrinsically so superior to that of the vendee as to shock the conscience. This is true, under the foregoing circumstances, even if it is assumed that the value of the lands could be exactly ascertained, and was, just before the levy of assessments,' exactly $22,500. There is no safe presumption that the value of the lands was or will be increased to the extent of the portion of the assessment levied upon it for the cost of grading the streets in question. It does not seem that the possibility that these lands may be increased in value by the grading and paving of the streets to the extent of the assessment, which is only eight and one-half per cent of the purchase price, creates such inadequacy of consideration as to shock the conscience. I have endeavored in research to examine all the reported authorities of our courts bearing upon this point, and fail to find any in which equity interfered where the inadequacy was less than thirty-three per cent and in most of them it was more, and even in these there were some other elements of inequity, such as misrepresentation, or silence in presence of good faith to speak. The following are fair illustrations of the most favorable action of our courts to the contention of this vendor. In Margraf v. Muir, 57 N. Y., 155, it was held to be a hard and unconscionable bargain where a woman, living at a distance and unfamiliar with the value, sold, to one familiar with it, premises worth $2,000 for $800, under circumstances of concealment, which pointed to bad faith. In. Post v. Leet, 8 Paige Ch., 337, the increase of price created by the levying of an assessment for the opening and macadamising of a street, between date of contract and date of execution, was thirty-three to fifty per cent of contract price. The work had been done and the street had been in use for three years, accompanied with misleading statements or silence of master selling and a deceiving clause in the terms of sale. In Smith v. McCluskey, 45 Barb., 610-613, the chief consideration was the house, and it had been burned down.

In Fitzpatrick v. Dorland, 27 Hun, 291, specific performance had been prevented, without vendor’s fault, for fourteen years, and the property had greatly increased in value, and was heavily burdened with taxes and assessments, which, it seems, would have eaten up the purchase price.

No reference is made in the printed points to the exception taken at fol. 164 to the exclusion of testimony offered to show that, in the negotiations preceding the making of the written contract, there was some talk or understanding that vendee would accept transfer subject to the rights of tenants and squatters to occupation. On the oral argument, appellant’s counsel informed this court that the ruling was not error; and that it was not harmful error I agree with him. It was not included in the written agreement, and there is no contention that, by mistake or fraud, it was not so included, or that vendor did not know it was not so included. Besides, in McCormick’s letter of January 13, written by the authority and direction of vendor, he states that the understanding referred to was that the thirty day tenants were to remain “ in the discretion of purchaser,” who exercised his discretion promptly on the 9th or 10th of January to require vendor to perform this contract in giving possession, and vendor admitted and accepted his duty in this respect at once, and must have employed Butcher several days before to attend to the removing of the so-called tenants, some of whom were not tenants at all. Besides, such informal talk or understanding in the negotiations preceding the execution of a written contract, plain and simple in its terms, and understood and appreciated by both parties, will not magnify the alleged inequity sufficiently to make the agreement so hard and unconscionable as to violate good faith and conscience. If the vendor pays these assessments he will receive the amounts back in case they are canceled. Brooklyn Charter, -tit, 19, § 11. It should not be forgotten that the general belief entertained by each contracting party in agreements of sale, that he has made a good bargain, is the life of trade; and that the rule of caveat emptor forbids equity from interfering with the advantages of the fortunate one, unless the good fortune is acquired through means which shock good conscience. Wasburn on Real Prop., 4th ed., vol. 1, p. 545

The judgment must be affirmed, with costs.

Clement, Ch. J.

(dissenting.)—On the 7th day of January, 1891, the appellant agreed in writing to sell to one Robinson a large plot of land located in the Twelfth ward of this city for the price of $22,500, and the deed was to be delivered on February 9, 1891. Subsequently Robinson assigned his interest in the contract to the respondent. At the date of the execution of the contract, January 7th, there were on said premises thirty-two buildings owned by the occupants, who came and went without permission of the. owner. Before the time fixed for closing, counsel who examined the title requested an adjournment to February 16th to verify cértain papers, which extension was agreed to. On February 10th said„counsel notified the defendant that he would be required to remove the tenants from the premises. The defendant, on February 12th, employed George G. Butcher as his attorney for the sole purpose of removing the tenants, and during such removals to consent to the adjournment of passing the title. On February 12th Mr. Butcher, on behalf of the defendant, requested an extension of the contract, and, by consent, the closing was postponed to March 10th. On that day the squatters had not been removed, and another extension was given to defendant till April 18th. At that time Mr. Butcher applied for a further' extension, and counsel for the respective parties endorsed on the contract as follows: “ The date of carrying out the purchase of above described premises is made on or before the 9th day of May, 1891, as though said day had been originally fixed therein for closing said title, and time is now made the essence of the contract.” I now quote, verbatim, the 10th and 11th findings of fact: “ Tenth. The real and true meaning of the stipulation of April 13th, 1891, between attorneys Garrison and Butcher, in the minds of the parties thereto, was solely to provide peremptorily against any further postponement than that therein named, and that neither of said parties intended by said stipulation that said contract should be altered or enlarged thereby.” “Eleventh. That all the postponements, except the first, were for the purpose of enabling defendant to remove the tenants or squatters, and the said postponements were by mutual consent.” " The attorney for defendant commenced to dispossess the squatters about February 12th, and proceeded with diligence, and on May 4th all were removed from the premises. On January 9th the land in question was open, and not fenced. Bush street was not paved, but had been used for vehicles for eight or ten years. “William street was very largely water.” Columbia street was graded and paved. On March 3d an assessment for $901.12 was levied on said premises for the grading and paving of Bush street, and on April 28th, an assessment for $1,079.33 was confirmed, for the grading and paving of William street; but down to the date of trial, Becember, 1891, nothing had been done by the city towards the grading and paving of either street. The defendant did not, nor did either of the attorneys, have any knowledge, on April 13th, that an assessment had been levied. On. May 4th, the defendant tendered plaintiff a deed with covenants that the premises were free and clear of incumbrances on February 9th. The plaintiff demanded a deed with covenants against incumbrances to May 4th. The plaintiff refused to accept the tender of defendant, on the salé ground that the defendant was obliged to pay the assessments for grading and paving Bush and William streets. The foregoing statement of facts is taken from the decision in the record.

The learned trial judge found, as conclusion of law, that the defendant should specifically perform his contract, and should pay the two assessments as claimed by plaintiff. In the opinion at special term it is stated that both parties asked specific performance. I do not so understand from the record. It is true that, in the prayer for relief in the answer, the defendant asked that the equities between the parties should be adjusted as of February 9th, and that the plaintiff be decreed to specifically perform his contract; but it is also true that, in addition, he asked that he have such other or further relief as equity and good conscience, and the circumstances of the case required, and which to the court should seem meet and proper. I regard the prayer for relief in an action in equity as of little consequence when such action is litigated. The requests to find are controlling, and, in his requests, the counsel for defendant did not ask a specific performance.

This is an action in equity, and the court may and should go behind the letter of the agreement and do what is just and fair between the parties. The case comes down to this single question : is it equitable that the defendant should pay the two assessments amounting to about the sum of $2,000 ? The date of the contract of sale was January 7, 1891, and the deed was to be delivered on February 9th. The assessment for grading and paving Bush street was confirmed March 3d, and the like assessment on William street became a lien on April 28th. Assessments in this city are levied in advance, and in December last neither Bush nor William street had been paved. On the facts as found, .it appears that the parties did not know that the assessment on Bush street was a lien when the contract was extended, and the assessment on William street was not levied until after the last extension. If the assessments had been laid for improvements which had been completed or were in progress, then the defendant clearly should pay them. Lathers v. Keogh, 109 N. Y., 583, 590; 16 St. Rep., 178.

The closing of the contract was postponed for the sole purpose of giving the defendant time to remove the tenants. In equity, it was postponed for no other purpose. If so, I do not think that the plaintiff should derive any other benefit than what was mutually intended by the parties.

The assignor of the plaintiff purchased the premises on January 7th, when the contract was made, and the purchase price was fixed, at that time, at the sum of $22,500. Bush street was then passable for vehicles, but was not paved, and William street could only be navigated by boats. The plaintiff did.not have in view that the assessments would be confirmed before February 9th. If the defendant pays the assessments, then, in effect, Bush and William streets were graded and paved when the contract was made on January 7th. In a court of equity, the time of sale of real property is when the contract is made, and not when the conveyance is delivered in pursuance of the contract. Simmons v. Cloonan, S. C., 47 N. Y., 3, 13; 81 id., 557. If the defendant had contracted to sell the lots after the assessments were levied, and the purchaser had knowledge of the fact, then a different question would have been presented, and perhaps, if the assessments had been levied between January 7th and February 9th, the defendant might be held liable to pay the same, though I should be inclined to hold the opposite view. The assessments were the act of the city, in which neither plaintiff nor defendant participated or had any knowledge. A case might arise where lots were sold, and pending the contract assessments could be levied up to one-half their assessed valuation (the limit fixed by the charter) for future improvements. Would a court of equity compel the specific performance of the contract ? The plaintiff is not injured if he takes the lots and' pays the assessments in question, for the value of the lots, as he purchased them, is enhanced by the amount of the assessments, or if he declines to take title, the court, on a new trial, can award him damages which will be full compensation for his loss.

In this action it has been decreed that the defendant perform a contract which in its effect was never intended to be made by either party. It seems to me to be a clear case of mistake. As I understand the authorities, in an action where specific performance is sought the defendant may always show that there was a mistake, even though such mistake was not mutual, and if the evidence is clear, and the plaintiff has not suffered thereby, performance will be denied, unless there is gross negligence on the part of the defendant. The authorities on this question are collated in Pomeroy’s Equity Jurisprudence, § 860, and I quote from that work: “ A court of equity will not grant its affirmative remedy to compel the defendant to perform a contract which he did not make or which he would not have entered into had its true effect been understood.” “ A mistake which is entirely the defendant’s own, or that of his agent, and for which the plaintiff is not directly, or indirectly, responsible, may be proved in defense, and may defeat a specific performance.” Parol testimony is admitted in behalf of a defendant not for the purpose of contradicting or modifying a written agreement, but to defeat the equity of plaintiff. This rule is well settled by the text books and authorities. Sugden on Vendors, vol. 1, 160; Pomeroy’s Equity (1st ed.), § 860; Best v. Stow, 2 Sandf. Ch., 298; Stevens v. Cooper, 1 Johns. Ch., 425, 429; Harris v. Pepperell, L. R., 5 Eq., 1; Martin v. Pycroft, 2 De G., M. & G., 785. It is claimed that the defendant must pay the assessments because the contract of sale so requires, but it clearly appears that the defendant did not so intend, and that the plaintiff never so expected when the contract was made, or when the extensions were given. The case of Post v. Leet, 8 Paige, 337, seems to me to be directly in point on the question involved in this case. See, also, Dowdney v. Mayor, 54 N. Y., 186.

At folios 164 and 165 there are three, exceptions to the refusal to admit testimony whereby the defendant sought to show that, at the making of the contract, there was a verbal understanding between the assignor of plaintiff and the defendant, that the tenants should remain. In my opinion, the testimony should have been admitted on the authorities before cited, though I prefer to put my conclusion on no technicality, but on the ground that, on the entire case, specific performance should be denied to the plaintiff for want of equity. The judgment appealed from should be reversed, and a new trial granted, with costs to appellant to abide the event.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Van Wyck, J.

license: Public Domain

text:
    Thomas Thompson, App’lt, v. George E. Libbey et al., Resp’ts.

      (City Court of Brooklyn, General Term,

      Filed June 27, 1892.)

    Master and servant—Negligence—Fellow servants.
    Plaintiff was employed by defendants in building a grain elevator, and was engaged with other employees in constructing bins. The scaffolds on which they worked were supported by planks resting on cleats on the inside of the bin, and were built by the carpenters who were working there. Plaintiff was injured by the fall of the scaffold on which he was at work. It appeared that defendants had furnished an abundance of proper materials for the work, and the fall of the scaffold was caused either by the giving away of a cleat because enough spikes were not used, or by the failure of the carpenter to cut the planks of a proper length. Held, that in either event the fault was that of a fellow servant of plaintiff engaged in the same sort of work, and that defendants were not liable.
    Appeal from judgment entered upon order dismissing the complaint.
    Action for personal injuries alleged to have been caused by defendants’ negligence.

      G. F. Elliott, for app’lt; Jackson & Burr, for resp’ts.
   Van Wyck, J.

Defendants, as contractors, were building a grain elevator. They employed about fifty carpenters, including this plaintiff, who were, at the time of the accident upon which this suit is based, and had been for some seven weeks prior thereto,. engaged in constructing sixty large bins about twelve feet square and -fifty feet high, and forty-eight smaller bins about six feet square and fifty feet high. These bins were constructed by a system of interlocking or dovetailing, after the manner of a log cabin, with planks two by eight inches which were placed on the broad side and spiked together, making the side walls thereof, eight inches thick, and all the bins were being carried up together. The carpenters• worked on the inside of the bins, and every five feet they rose in their construction it was necessary to make a platform on the inside to enable the carpenters to reach then-work, and this was done by the carpenters engaged in the building of the bins spiking on the inside thereof cleats on opposite - sides, and then placing on these cleats two by eight inch planks of the proper lengths, upon which the workmen stood. The plaintiff testified: “ It was the duty of the carpenters * * * to build this scaffold just as much as it was to build the side work of the bin.” The testimony shows that there was abundance of proper materials, including spikes, cleats and planks, for the construction of those platforms, and it also established that the platform which gave way was built by one of plaintiff’s fellow- employees engaged in the same kind of work which he himself had been engaged in for seven weeks, viz.: the building up of the walls of these bins and the constructing of such platforms as became necessary in the progress of the work. While the plaintiff was working on this platform, it fell and he wa& hurt. There is some doubt whether the cleats gave way because the carpenter had not used enough spikes, or whether the planks were cut too short by the carpenter to reach over and rest upon the cleats. Whichever it was, the fault therefor was that of a fellow servant of plaintiff engaged in the same kind of work, there being plenty of good spikes and proper planks. It is well settled that one employee cannot recover from the common employer for the negligence of another employee in the performance of the work incident to the common employment. Hogan v. Field, 44 Hun, 72; 7 St. Rep., 444; McCormack v. Crawford, 4 St. Rep., 835; Judson v. Village of Olean, 26 id., 706; 116 N. Y., 655; Butler v. Townsend, 126 id., 105; 36 St. Rep., 508; Nugent v. Atlas Steamship Co., 40 id., 927.

For these reason?, we think the judgment of dismissal of the complaint must be affirmed, with costs.

Osborne, J., concurs.


text:
    Mary Louise Race, Resp’t, v. The Union Ferry Co., App’lt.

      (City Court of Brooklyn, General Term,

      Filed June 27, 1892.)

    1. Negligence—Ferry companies.
    Plaintiff, who had frequently used defendant’s ferry, entered the bridge passage way in the evening when the bridge was dimly lighted, and was injured by falling from the bridge to the boat deck, which was eighteen inches below it. It appeared that the bridge rested on a float which was adjustable to the exact height of the boat deck, and that it was adjusted pretty nearly every time the boat came in, and that they are always on a level. Held, that the evidence was sufficient to carry the question of defendant’s negligence to the jury.
    2. Same—Contributory.
    Under the circumstances the jury was justified in finding plaintiff free from contributory negligence.
    Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial.

      Lowrey, Stone & Auerbach, for resp’t; Dailey, Bell & Crane, for app’lt.
   Van Wyck, J.

This is an action to recover damages for personal injuries sustained through the alleged negligence of the defendant. The jury rendered a verdict for plaintiff for $2,500, and from the judgment entered thereupon, and from an order denying motion for a new trial, the defendant appeals. We will consider only the questions that appellant’s counsel presents to this court in his printed points and oral argument, viz., that plaintiff was negligent and defendant was not negligent on the occasion when the injuries were sustained.

Defendant runs its'ferry boats from the foot of Fulton street, Brooklyn, to the foot of Fulton street, New York city. Both ends of the boat are alike, and each end is rounded to fit into the concave end of the bridge, to which it is held by chains when the boat lies in the slip. The bridge is a floating one; that is, its outer end rests upon a float so constructed that the floor of the bridge is easily adjustable to the exact height of the deck of the boat. On each side of the bridge is a narrow passageway over which passengers walk upon the boat. The testimony discloses the fact that fifteen millions of people cross the river annually at this particular ferry, from which it is a fair inference that these narrow passageways are as much traveled as the most frequented sidewalk of the city. The testimony of defendant’s own witnesses and employees shows that when the boat is receiving passengers its deck and the bridge are always on about the same level, not varying more than one-half of an inch to one and a half inch, and that sometimes when the boat comes in heavily loaded, its deck is five or six inches below the floor of the bridge, “but it is adjusted pretty nearly every time the boat comes in. * * * It would not do to neglect it a minute.”

It is manifest that the facilities for and the practice of keeping the deck and bridge nearly on a level were most commendable and necessary precautions on the part of the defendant for the safety of the millions of persons walking over the bridge to the boat. The plaintiff testifies that she frequently used this ferry before the accident, and that deck and bridge were always on about the same level; that on December 6, 1890, in the evening, when the bridge was only dimly lighted, the gate to the bridge was open, and she entered upon the bridge passage-way assuming that it was in its usual condition, and walked upon the boat and was thrown down thereon because the boat deck was about eighteen inches below the bridge, which fact she learned only from her fall, and the distance of the step, as she did not look to see before she fell. We think this evidence was sufficient to carry the question of defendant’s negligence to the jury. It was an unusual management of the boat and bridge which, it seems, never occurred before. Snelling v. Brooklyn & N. Y. Ferry Co., 37 St. Rep., 184; same case, 128 N. Y., 579; 38 St. Rep., 1010; Bateman v. N. Y. C. & H. R. R. R. Co., 47 Hun, 429; 14 St. Rep., 454.

We also think the jury was justified in finding that plaintiff was free from negligence, for she had used this ferry for years, and had always before found the bridge and deck on about the same level, as defendant’s own witnesses testify was always the case ; she approached the boat in the usual way, and was invited by the open gate to enter upon the bridge. She did not anticipate danger, nor did she look for any ; she assumed that the passage was in its usual safe condition and received no warning to the contrary. Ferris v. Union Ferry Co., 36 N. Y., 312; Swart v. Mayor, 23 St. Rep., 393; Weston v. N. Y. El. R. R. Cc., 73 N. Y., 595.

Appellant’s counsel has failed to convince us that the verdict should be disturbed.

Judgment and order must be affirmed, with costs.

Osborne, J., concurs.


author: Clement, Ch. J.

text:
    George Mc Cann, App’lt, v. The Kings County Elevated Railroad Co., Resp’t.

      (City Court of Brooklyn, General Term,

      Filed June 27, 1892.)

    Railroad—Liability for negligence of employees of contractor.
    Defendant employed a contractor to paint its structure. The employees of the contractor hung a canvas beneath to prevent dripping of paint on the street, but in so careless a manner that it became loose and by its flapping frightened plaintiff’s horse, which ran away and threw him out. Held, that plaintiff’s injuries were due solely to the carelessness of the contractor’s employees in performing the work and not the direct result of the work itself, and that defendant was not liable therefor.
    Appeal from judgment of non suit.
    Action for personal injuries alleged to have been caused by defendant’s negligence.

      M. L. Towns, for app’lt; Tracy, McFarland, Ivins, Boardman & Platt, for resp’t.
   Clement, Ch. J.

The plaintiff proved on the trial of this case that he was driving under the elevated railroad of the defendant on Fulton street in this city, and that his horse was frightened by the flapping of the canvas suspended under the structure as a protection against the dripping of paint on the street, while painters were at work; that the canvas was so carelessly hung as to . become loose, whereby the horse of plaintiff was frightened and ran away, and that plaintiff was thrown from his wagon and injured. The defendant had contracted with another party to do the painting, and the question to be decided is whether or not the company is liable for the negligence of the employees of said contractor. The complaint was dismissed at the trial, and the plaintiff has taken this appeal.

Assuming that negligence was proven on the part of the employees of the contractor, we are of opinion that the defendant is not liable on the facts of this case. Whenever the state has granted a franchise to a railroad company whereby it is necessary, in the construction or repair of the road to interfere with the highway, a duty is imposed upon such company, in the performance of any work necessarily dangerous, to exercise due care that travelers on the highway shall not be injured, and the corporation cannot evade or assign such duty. Woodman v. Metropolitan Railroad Co., 149 Mass., 335; Veazie v. Penobscot R. R. Cs., 49 Maine, 119. If the work is performed by a contractor, the company is liable for his negligence, if it arises from the thing itself which he was employed to do. If the injury results from a collateral act on the part of the employees of the contractor, then the railroad company is not in fault. It is sometimes difficult to decide whether an injury resulted from the work itself or from an act which took place during the performance of the work. A city, by reason of the grant of a charter, assumes a duty to care for the condition of its highways. In the leading case of Storrs v. City of Utica, 17 N. Y., 104, the city had entered into a contract to build a sewer, and the contractor had dug a dangerous trench in a street, and it was held that the city was liable for failure to provide lights at night near the excavation as a protection to-travelers. Judge Comstock says: “The cause of the accident, therefore, was not in the manner in which the work was carried on by the laborers; if it had been, their immediate employer, and he alone, was liable for the injury. But, in a sense strictly logical, as it seems to me, the accident was the result of the work itself, however skilfully performed.” See also Brusso v. Buffalo, 90 N. Y., 679. There are many cases, on the other hand, where the municipality has been held not liable where the act or thing complained of arose from the manner in which the work was performed, following the cases of Pack v. Mayor, 4 Selden, 222, and Kelly v. Mayor, 1 Kern., 432.

In Reedie v. The Co., etc., 4 Exch., 244, cited by Judge Earl in the McCafferiy case, 61 N. Y., 178, the workmen in the employ of a contractor who were building a .bridge over a highway negligently caused a stone to fall upon a person in the highway, whereby he was killed, and it-was held that the railroad company was not liable. See, also, Hole v. Railway Co., 6 H. & N., 488; Dalton v. Angus, 6 Appeal Cases, 829; Water Co. v. Ware, 16 Wall., 566. While it is true that elevated and surface railways have received grants to use the streets of New York and Brooklyn, and, in consideration of such grants, a duty is imposed upon them to exercise care in the manner in which they use the streets,- so as not to injure persons using the same, we are not able, from the authorities, to spell out that any greater duty is imposed upon railroads than upon cities and villages in the care of highways.1 In the construction of the elevated railroads, it was necessary to excavate for foundations of the columns, and clearly a duty was imposed upon the companies to guard the excavations in the streets, and for failure to exercise proper care, they-would be liable, though such excavations were made by employees of an independent contractor. On the other hand, there was nothing dangerous in placing a canvas under the structure to protect persons in the street from the dripping of paint. It was necessary for the contractor so to do, and the fact that a canvas might become loose and flap by the wind was collateral.- It was due to carelessness during the performance of the work, and not the direct result of the work itself. The officers of the defendant were not bound to foresee that such a tiling might happen, and it was not necessary to protect the company from liability that they should, employ men to watch the canvas, and, if it became loose, to restore it to its proper place. It is a fact that anything not authorized by law overhanging a public highway which can do injury is a nuisance, but if it is authorized it is not. The canvas, unless it became loose, or even if it did, was not any more liable to frighten horses on the street than a locomotive running on the elevated track, and yet it would not be claimed that the company would be liable if a horse ran away and did damage where it was frightened by the steam or noise from a train operated in a careful and the ordinary way. There was nothing unlawful in the" use of the canvas, because it was necessary, and the plaintiff was injured "solely by the carelessness of the employees of the contractor during the performance of the work.

Judgment affirmed, with costs.

Osborne, J., concurs.


text:
    Clinton Stephens, App’lt, v. Frederick C. Hockemeyer, Resp’t.

      (City Court of Brooklyn, General Term,

      Filed June 27, 1892.)

    1. Easement—Extinguishment of.
    An easement can be acquired or extinguished by adverse user for twenty years
    2. Same.
    Deeds of premises of which those of the parties hereto formed a part,executed in 1850 and 1852, contained a covenant against the erection or maintenance of a livery stable on the premises. Prior to 1871 there was a frame building on one of defendant’s lots, and one on the rear of both lots, both buildings being used as livery stables. In 1873 he removed said buildings, and erected a brick livery stable on the front of both lots. Held, to be such adverse user for twenty years as to extinguish plaintiff’s easement, if she had one, and if not, she had only an equitable right which cannot be enforced because of unreasoriable delay.
    Appeal from judgment dismissing complaint.
    Action to restrain defendant from conducting a livery stable business upon his two lots of land adjoining that of plaintiff, iu violation of a covenant in certain deeds.

      Brunnemer & Bennett, for app’lt; Otto F. Struse (Brewster Kissam, of counsel), for resp’t
   Clement, Ch. J.

The defendant is the owner of two lots of land situated on the easterly side of Marcy avenue in this city, and became such owner about October 1, 1868, and the plaintiff is, and has been since March, 1891, seized of a plot of land sixty feet by one hundred, adjoining the premises of the defendant In 1850, Matilda Ann Van Doren sold certain real estate, including the premises of plaintiff and defendant; to one John R Livingston, who, in 1852, conveyed a portion of the property, including also the premises of the plaintiff and the defendant, to one Bell. Both deeds contained a covenant against the erection or maintaining of a livery stable on the land described therein. This action was commenced March 31, 1891, and on March 31, 1871, and prior thereto, there were located on the northerly lot of the defendant a building twenty-five feet by eighty, and on the rear of the two lots another building twenty feet by fifty, and each building was erected and used as a livery stable, and the remainder of the southerly lot was used for the storage of wagons and manure. Eighteen years prior to the beginning of this action the defendant removed all the frame buildings on his lots, and erected in place thereof a brick livery stable of two stories in height, covering the two lots. The trial judge found that the entire premises had been openly used for the purposes of a livery stable for more than twenty years prior to the date of the commencement of this action, and for that reason rendered judgment for the defendant.

The right of the plaintiff, if there were no question of adverse user in the land of the defendant, is a negative easement. Trustees v. Lynch, 70 N. Y., 440; Parker v. Nightingale, 6 Allen, 341. Judge Allen says (Lynch case, supra, 447): “An easement in favor of and for the benefit of lands owned by third persons can be created by grant, and a covenant by the owner, upon a good consideration, to use or refrain from using his premises in a particular manner for the benefit of premises owned by the covenantor is, in effect, the grant of an easement, and the right to the enjoyment of it will pass as appurtenant to the premises in respect of which it was created.’’ If we assume that the plaintiff had a legal interest in the land of defendant (a question which it is not necessary to decide), then the easement could be extinguished by adverse user of twenty years. Woodruff v. Paddock, 130 N. Y., 618; 42 St. Rep., 650; Snell v. Levitt, 110 N. Y., 602; 18 St. Rep., 611; Actual knowledge by the plaintiff or the prior owners of his lots of such adverse user need not be show n. Judge Earl held in the case of Ward v. Warren, 82 N. Y., 265, that “ when the use of a way has for the requisite time been open, notorious, undisputed, under claim of right and adverse, the law presumes a grant of such way from the owner of the servient tenement, and such presumption is conclusive. * * * The owner of the servient tenement is not permitted to defeat such an easement by simply showing that he did not, in fact, grant it or have knowledge of its use.” An easement can be acquired or extinguished by adverse user of twenty years. In this case the defendant and his tenants had openly, notoriously, and under claim of right, used the buildings as a livery stable for twenty-two years prior to the commencement of the action. The portion of the lots not occupied by buildings in 1871 was used, as a place of deposit for manure" and for storage of wagons. The use of the lots for stable purposes has been uninterrupted for twenty-two years. In 1873 the defendant removed the frame buildings and erected a two story brick stable covering the two lots, but the use of the lots has been substantially the same, and that is sufficient, for the use need not be precisely in the same manner. Belknap v. Trimble, 3 Paige, 577.

The plaintiff contends that the extent of the right should be limited to that which has been in actual use for twenty years. The adverse user did not depend on the number of stalls in the stable, or on the fact that the stable was at first a frame building. Both lots were used for stable purposes, and it would make no difference legally in the use whether the horses were kept at one time on the north side of the building and afterward on the south. It would afford the plaintiff no relief if the use of the front of the southerly lot was restricted and the stable allowed to remain on the rear of the same lot.

We have discussed the case on the theory that the plaintiff, except for the adverse user, had a legal interest in the land of defendant. If the counsel for plaintiff is correct in his contention that plaintiff had no interest in the land, then the right of plaintiff is equitable, and we do not hesitate to hold that he cannot enforce such equitable right by reason of unreasonable delay. Calhoun v. Millard, 121 N. Y., 69; 30 St. Rep., 759.

Judgment affirmed, with costs.

Van Wyck, J., concurs.


author: O’Brien, J.

text:
    May Danziger, App’lt, v. Charles Falkenberg et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

    1. Landlord and tenant—Injury by fire—Laws 1860, chap. 345.
    In the absence of.covenants for an abatement of rent in case of premises becoming untenantable by reason of fire, the tenant is called upon either to terminate the lease or retain possession, in which latter case he will be liable for rent whether the premises are in a tenantable condition or not.
    2. Same.
    Defendants, relying on such covenants in a former lease, but which were not in the last one, demanded that repairs be made and refused to pay rent until they were made, and four weeks after the fire had a conversation with plaintiff which resulted in a surrender of the keys. Held, that defendants were liable for rent for said month, which became due before such surrender was made.
    Appeal from a judgment entered upon a verdict in favor of defendants, and from an order, on motion, for a new trial.

      Louis Sanders, for app’lt; Arthur Furber, for resp’ts.
   O’Brien, J.

This action was brought to recover the rent of certain lofts in Howard street for the months of April and May, 1890, payable in advance.

The plaintiff alleged that the defendants entered into possession of the premises under a written lease terminating February 1, 1889 ; that the lease was renewed for one year thereafter and that, on the expiration of that lease, defendants held over and continued in possession of the premises until subsequent to the time that the rent sued for became payable; that by the terms of the hiring it was provided that if the premises should be partially damaged by fire but not rendered wholly untenantable, the same should be promptly repaired by the plaintiff, but in case the damages should be so extensive as to render the premises untenantable, the rent should be paid proportionately to that time, and the rent cease until the premises were put in good repair.

It appears that on the 18th of March, 1890, a fire occurred, which damaged the premises, but to what extent, whether rendering them untenantable or not, was one of the questions litigated upon the trial.

The plaintiff further alleged that the defendants remained in possession and occupation of the premises after the fire, and, upon evidence which plaintiff claims sustained this contention, a liability of the defendants for rent for the months of April and May is sought to be enforced.

The defendants deny that they held over, or that any rent is due, insisting that the fire rendered the premises untenantable and unfit for occupation, and that they had not been repaired up to the time of the commencement of this action. In addition, the defendants allege a surrender and acceptance of the premises, and also a forcible eviction.

The first difficulty presented by this appeal arises out of a variance between the terms of the lease, as stated in the complaint, and the proof offered upon the trial.

The terms of the letting set forth in the complaint, in respect to the rights of the parties in the event of a fire causing damage to the buildings, contained in prior leases, were not incorporated in the renewal of the lease, which covered the period from February, 1890, to February, 1891, during which period the fire occurred. As no point, however, in respect to such variance was made upon the trial, the rights of the parties should be determined upon the evidence introduced.

In the absence of any covenant, a tenant at common law was bound by the stipulated rent, though the buildings during the term might be destroyed by fire. To mitigate the rigor of this law, it -was provided by § 1, chap. 845 of the Laws of 1860, as follows:

“ The lessees or occupants of any building which shall, without any fault on their part, be destroyed or be so injured by the elements, or any other cause, as to be untenantable and unfit for occupancy, shall not be liable or bound to pay rent to the lessors or owners thereof after such destruction or injury, unless otherwise expressly provided by written agreement or covenant, and the lessees or occupants may thereupon quit and surrender possession of the leasehold premises, and of the land so leased or occupied."

. The defendants, as shown by their answer and the proof submitted, did not take advantage of this statute by surrendering possession after the fire; nor is there any evidence to support their defense that they were, after the fire, forcibly evicted from the premises, and the court very properly, therefore, withdrew this question'from the consideration of the jury, which, had it been submitted after plaintiff’s calling the attention of the court to the absence of such evidence, would have been a fatal error.

This leaves us to consider the. other defense relied upon, of a surrender of the premises after the fire, at the request of and in the taking of possession by the plaintiff.

One of the defendants testified that such a surrender was the result of a conversation had with the plaintiff about four weeks after the fire, which would make it about April 15th, and the other defendant testified that it was about a month after the fire when ■ he had a conversation with the plaintiff which resulted in the surrender of the keys.

It will thus be noticed that prior to the interviews with the plaintiff defendants did not elect, as they would have had a right to do under the act, to abandon the premises, nor had they surrendered the same to the landlord. The evidence is susceptible of the view that they thought their rights were to be determined according to the covenants of the former leases, which would have secured to them an abatement of rent until the repairs had been made to the buildings. As we have seen, however,. such covenants not being in existence, they were called .upon either to elect to terminate the lease or retain possession, in which latter case they would be-liable for rent whether the premises were in a tenantable condition or not.

This view finds support in the case of Smith v. Kerr, 108 N. Y., 34; 13 St. Rep., 115, which says: “Upon the destruction by fire of a structure occupied by a tenant no obligation rests upon either the landlord or the tenant to rebuild it in the absence of .covenants in the lease requiring it to be done. Doupe v. Genin, 45 N. Y., 119.

“ The tenant is, however, at common law liable to pay the rent reserved by the lease so long as any part of the demised premises remains in existence capable of being occupied or enjoyed by such tenant. Under the statute, however, in case of the destruction of such buildings, the tenant is entitled to exercise an option, either to declare the lease at an end and quit and surrender possession of the premises, or to continue in the possession thereof until the expiration of his term, paying the rent reserved by his lease. Chap. 345, Laws of 1860. The mere fact of the destruction of the buildings does not terminate the lease, and the tenant, unless he exercises this option and effects a full and absolute surrender of the premises, continues liable under the covenants of his-lease for the payment of rent.”

The evidence already referred to shows that a month - after the fire defendants had elected to retain their lease and asked for repairs, refusing to pay the rent until they were made. This, having in view their relations to the property under the letting, they were not at liberty to do. They were bound to elect whether they would avail themselves of the statute and surrender possession, or remain, and such election, when made, was binding on them. Having, therefore, elected to remain, intending no doubt to occupy the premises when repaired, they could not refuse to pay rent which was then due and payable; and in this connection the condition of the building was wholly immaterial. .In other words, on the first day of April, 1890, the rent for that month was due, and at that time the defendants were in possession, having elected to remain pending arrangements with the landlord in respect to repairing the premises. This being their position and attitude, they were liable for the rent which became due on April 1st, and we regard the plaintiff’s exception to the refusal of the court to direct a verdict for the April rent as well taken.

The other question remains, however, as to the effect of the surrender upon defendants’ liability for the May rent.

The interviews between the parties, which it is claimed resulted in such surrender, took place in April, and if then made and ácted upon by the parties would be a good defense to the claim for rent for any subsequent period.

We think the evidence was sufficient to justify the conclusion reached by the jury, that the premises were then surrendered, but inasmuch as it is impossible to modify the judgment by giving credit to the plaintiff for the April rent, it will be necessary to have a new trial, and, upon such new trial, to avoid the confusion and doubt which arises upon this record in respect to the precise questions that a jury should consider, we suggest that the questions, if more than one, should be separately presented for their consideration.

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

Andrews, J., concurs; Van Brunt, P. J.,concurs in result


text:
    Patrick S. Cassidy, Resp’t, v. The Brooklyn Daily Eagle, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

    1. Libel—Privilege.
    Defendant having published in its paper a controversy between plaintiff and one R., some six weeks after such controversy was ended, and without any intervening action on plaintiff’s part to incite an attack, published an article in which it was stated that R. said that plaintiff was as big a rascal as one M. and a bigger rascal. In an action for libel, held, that the previous controversy could not be extended to this ai tide and render it privileged.
    2. Same—Evidence of extrinsic facts.
    In such an action defendant’s prior publications as to M.’s character are admissible in evidence to explain the meaning of the publication or the knowledge which defendant had of such meaning at the time the libel was published, although not pleaded.
    Appeal from judgment entered upon a verdict in favor of plaintiff at circuit, and from an order denying motion for a new trial.

      W. N. Dykman, for app’lt; Charles W. Brooke (Edward R. Leavitt, of counsel), for resp’t.
   O’Brien, J.

The complaint set forth three causes of action for three distinct libelous publications. The first appeared in defendant’s paper on May 30, 1887 ; the second on June 4, 1887 ; and the third on July 16, 1887. Upon the two first causes of action the defendant had a verdict in its favor, and upon the third, the plaintiff; and it is from the judgment entered upon the latter that the defendant takes this appeal.

Although the prior publications are not here involved, it is proper to notice' that they appear to have grown out of a controversy carried on in the columns of the defendant’s paper between the plaintiff and one O’Donovan Rossa.. The latter, having answered in the second publication complained of what he regarded to be an attack made upon him by the plaintiff, had seemingly closed the controversy, up to which point the defendant’s course in publishing the articles has been justified by the verdict of the jury. But six weeks after the controversy had so ended, and without any intervening action upon the part of the plaintiff to incite the attack, there appeared in the defendant’s paper the third publication, for which a recovery in this action was had. The article was as follows:

“TIMELY TALK.”
“ O’Donovan Rossa not in X Retractive Mood.
“ O’Donovan Rossa: I have not denied that I have described Patrick Sarsfield Cassidy as being as big a rascal as Red Jim Mc-Dermott. I did say such a thing, and I stand by it. I have reason to think that tiiis Cassidy is as big a rascal as Red Jim Mc-Dermott, and a bigger rascal.”

Upon the trial, as the result of the controversy alluded to, the defendant claimed that this publication, in addition to the former ones, was privileged; but upon evidence which justified submission of this question to the jury, the defendant’s position was not sustained. There are brought up for review, however, two questions ; one, in regard to the refusal of the trial judge to charge the following proposition:

“ That the jury may consider the circumstances which your honor said they might consider with reference to the third cause of action. If they give sufficient weight to what had preceded in this newspaper controversy, that they may award for the third cause of action six cents damages.”

An exception was taken to such refusal, and upon the motion for a new trial this was referred to as one of the principal grounds .upon which it should have been granted.

This request is by no means clear, and, in the absence of evidence from the record as to justification, privilege, or any mitigating circumstances relating to this third libel charged in the complaint which if given upon the trial has not been printed, necessarily leaves what was meant by the request in doubt, and does not present the question in such a form as to be properly passed upon. We will assume, however (which is its probable meaning), that it was intended to ask of the court that the newspaper controversy should be extended to the third libelous article, published after that controversy had ceased. Had such a definite request been made, the court should have refused it.

We do not think that such a privilege could be extended to the third article, which, after the close of the controversy, and in the absence of any explanation or extenuation, seems to have been purely gratuitous.

The second question raised upon this appeal is based upon exceptions taken to the admissibility in evidence of certain publications of the defendant, which were admitted for the purpose of showing the kind of rascal McDermott was. It is contended that such evidence,' being offered to support extrinsic facts, was not admissible because not pleaded. We think, however, that the appellant overlooks, with regard to when extrinsic facts may be admitted, the distinction between publications which are libelous per se and those which become libelous only upon proof showing by extrinsic facts that the publications are libelous. In other words, where a publication is not defamatory on its face, and becomes so only by reference to extrinsic facts, the existence of those facts must be alleged. Where, - however, as here, the article was libelous per se, no rule of pleading requires that evidence of the extrinsic facts showing its defamatory character should be pleaded. This distinction as to the rules governing a pleading is based upon the requirement that all necessary facts to make out a cause of action must be stated; but this does not involve a requirement that a pleading which sets forth a good cause of action should also contain the evidence required to support it.

The libel complained of stated that the respondent was not only a rascal, but “ a bigger rascal ” than one Jim McDermott. As stated by the learned trial judge, the natural force of the expression is that McDermott is a rascal, and that this man is a greater rascal than that rascal; and the kind of rascal he is they have disclosed in the paper.

If defendant had not had knowledge of McDermott’s character, if the evidence to establish the same had not been taken from the defendant’s own paper, there might be some force in the suggestion that a comparison between a rascal and such a rascal as McDermott was claimed to be could not be shown in the absence of any averment in the complaint of knowledge of McDermott’s character brought home to the defendant

Where, however, as here, the defendant had published in its own prior issues facts showing how big a rascal McDermott was, it would seemingly to us ■ be extending beyond what is required by rules relating to pleading to compel, the setting forth of such published particulars. The defendant cannot claim to have been either injured or surprised by such evidence, for the standard of comparison was its own, published by itself prior to the alleged libel, and the evidence shows that the editor through whom the article complained of 'was inserted had read in its issues the record of McDermott ás published.

Had the charge here been that plaintiff was a bank thief, or a sneak thief, could it be claimed that evidence to show what was meant by “ bank ” or “ sneak ’’ must be set forth in the pleadings to justify evidence being given as to the meaning of such words? We do not think that the rule applied to publications which are not defamatory on their face, and become so only by reference to extrinsic facts, which for this reason must be averred, can be applied to evidence which explains the meaning of language in a charge made which is libelous per se.

We are of opinion, therefore, that it was not error to admit in evidence defendant’s prior publications of McDermott's character, for the purpose of explaining the meaning of the publication, or the knowledge which defendant had of such meaning at the time, the libel complained of was published.

We think, therefore, that the judgment and order appealed from should be affirmed, with costs.

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


author: O’Brien, J. Van Brunt, P. J.

text:
    George H. Adams et al., Ex’rs, Resp’ts, v. Stephen H. Olin et al., Ex’rs, App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

    Reference—Retrial.
    A judgment in favor of defendants, entered upon the report of a referee, was reversed by the general term on the ground that the evidence produced on the trial was insufficient to sustain the defense of payment, and the cause remitted to a new referee. On the new trial additional evidence was introduced on this question, but the referee, because in his opinion it did not radically change the whole aspect of the evidence, felt himself hound by the ruling of the general term, and reported in favor of plaintiffs. Held, error; that under these circumstances it was the duty of the referee to weigh the whole evidence and give judgment in accordance therewith, irrespective of the opinions of the members of the general term in respect to the facts.

      Appeal from judgment entered upon a reference and order confirming same.

      George L. Rives, for app’lts; George H. Adams, for resp’ts.
   O’Brien, J.

On a former appeal this court reversed a judgment against the plaintiffs, and under the order of reversal appointed another referee, and it is from a judgment entered upon the latter’s report sustaining the plaintiffs’ claim that this appeal is taken.

' A statement of the claim and the defenses urged before the referees need not be formulated again, for the reason that they are ably and elaborately set forth in the opinions upon the former appeal, and reported in Adams v. Olin, 61 Hun, 318; 40 St. Rep., 551.

So far as the former decision of the general term dealt with questions of law, we regard the case as not now open for discus ■sion. It was therein determined, as matter of law, that the plaintiffs’ evidence made out a prima facie case, and that the provisions for Mrs. Barlow in her husband’s will did not in law amount to a satisfaction of this claim. In addition, there was discussed upon the former appeal in the opinions the question of the statute of limitations ana payment, both defenses interposed by the defendant.

In respect to the former, it being a mixed question of law and fact, the referee was at liberty, if any new evidence was presented in reference thereto, to reach a conclusion thereon, having in mind, however, the decision of this court upon the facts as then presented, which, so far as applicable, would be controlling.

In regard, however, to the question of payment, which is a pure question of fact, this court, upon the ground that the evidence produced on the first trial was insufficient to sustain such a defense, reversed the judgment and remitted the cause back to a new referee, to the end that this question should be again tried.

In discussing this question of payment, in the opinions upon the former appeal it was necessary to state in what respects the evidence relied upon to sustain this defense was insufficient. Such expressions of opinion, however, upon a question of fact were not binding or conclusive upon the referee, though it was •proper and right that he should refer to the same with a view to prevent his falling into the same or any other error which might have been made by the former referee in respect to such evidence. This, however, did not take, away from the referee the responsibility which devolved upon him to reach a conclusion upon the facts presented, irrespective of the opinions of the different members of the appellate court in respect to such facts.

A referee stands precisely in' the same attitude as a jury. Where a judgment is reversed upon a question of law a referee, upon a re-trial, must conform to the law of the case, as declared by the appellate court; but where a decision is reversed upon the facts, he stands in the same situation as a juryman, and must find "the facts solely upon the evidence presented.

The case of Claflin v. Dubois, 22 St. Rep., 551, is directly in point. It was therein held that a judgment should be reversed and a new trial ordered where it was based not upon the deliberate action of the tribunal before which the cause was tried, but on the assumed decision of another tribunal, which had made no disposition of the facts other than to direct a proper investigation.

The only distinction between the cases is one more favorable to appellant, for the reason that in Claflin v. Dubois the case was tried the. second time on precisely the same evidence, while in the case at bar some additional or new evidence was introduced on this trial upon this question of payment. The parties were, therefore, entitled to the deliberate judgment of the referee upon the question of fact thus presented. He was bound to exercise his own judgment, and was not controlled by the views expressed in the opinions upon the former appeal.

The general term neither made, nor could it make any disposition of the facts other than to direct a further inquiry; nor did it deal with this question as one of law, but simply as one of fact; and in sending it before a new referee he was required to proceed with a new trial of the question upon the evidence then presented, the same as though it was then being for the first time tried. It -is, of course, entirely proper for the referee to have resort to the opinions expressed by the judges of the appellate court, just as a resort might be had to any other argument that would have a bearing upon the questions presented for his consideration and decision, but in the end the conclusion to be reached must be the result of his own deliberate judgment, uncontrolled by opinions expressed upon a former appeal.

The record shows clearly that the appellants had not the benefit of a new trial of the question, but that the referee, feeling bound by the views expressed on the former appeal, based his decision thereon, having resort to the new evidence for the purpose, as stated by him, of determining whether “ the facts have been so materially changed as, under the rules laid down by the general term, to warrant a conclusion different from that reached by that-tribunal.” Again, be says: “Although not a little impressed by these three items of evidence, and the claim of the respondents as to their legitimate force and effect, whatever might have been my conclusion upon the whole case if this had been the first trial of the cause, I do not feel justified in saying that this evidence so radically changes the case presented to the general term as to necessitate a conclusion different from that arrived at by that tribunal.”

The most serious question presented in regard to this error into which the learned referee has fallen, relates to the right of this court to resort to the opinion of the referee for the purpose of seeing in what manner his conclusion has been reached. So far as the record shows, outside of the opinion there is nothing to indicate a failure of the referee to exercise his own judgment.

The findings, decision and judgment find support in the testimony presented, and had the referee made such findings and conclusions as the result of his own judgment, upon the testimony presented, we should have no hesitancy in affirming the judgment, assuming there was no other question than the defense of payment in the case, for the reason that there is sufficient evidence to support the findings and conclusions made by the referee.

While we have recently held, in the case of Robinson v. The N. Y. & Lake Erie R. R. Co., 46 St. Rep., 35, that an opinion is not «evidence, nor can it be resorted to for the purpose of enlarging or destroying a judgment, we do not think that we are at entire liberty to disregard the written expression or statement of the referee, contained in his opinion, in respect to the manner in which the trial before him was conducted. Had the case been tried before a jury, the effect of reading from an opinion of the appellate court a conclusion reached upon a previous trial or an ■expression of the court as to the conclusion to be reached upon testimony given upon such former trial, where the question was one of fact, would be, under a proper exception taken, reversible error.

In Panama R. R. Co. v. Johnson, 44 St. Rep., 382, it was held that it was not error for the court to read from an opinion of the general term on the former appeal in the case on trial that part which laid down the law as applicable to the case, where nothing contained therein stated the result of the previous trial. This is an undoubted expression of the judge writing the opinion, that if the portion read from an opinion of the general term had stated the result of the previous trial, it would have been error. Much more so would it be error to assume that the opinion expressed by the general term upon a former appeal was conclusive upon a question of fact presented for their consideration, whether such question of fact was presented upon the same, or upon the same and additional evidence, as here.

An attempt to control the deliberations of the jury in the manner indicated would afford an opportunity, by an exception taken, to review the error committed upon the trial. Where, however, as here, the trial took place before a referee, no means was afforded, until the fact was ascertained by reference to his opinion, of finding that bis conclusions were the result not of his own judgment but of a supposed controlling view entertained by the appellate court. No objection or exception is made to our resorting to such opinion, and we are inclined to the view that to it, just as to any other extrinsic proof, resort may be had, where the purpose sought is not to affect or change the judgment, but is resorted to for the purpose solely of showing that a mis-trial has occurred, by reason of error into which a referee has fallen, and which error, he states, controlled his action and judgment.

Another ground relied upon by appellants has reference to the failure of the referee to exclude the books of account of Mrs. Barlow, produced and offered in evidence by plaintiffs in support of her claim.

Portions of these books were properly admitted, as it was shown that the footings upon certain pages of the books were Mr, Barlow’s own entries and, of course, competent evidence as against him. There was no principle, however, which would have rendered the balance of Mrs. Barlow’s accounts admissible in support of her own claim against the defendants. Had the appellants to rely upon this ground only, we should have some hesitancy in reversing the judgment, for the reason that the consent given by defendants to the introduction of portions of the account, and the failure to properly except to the introduction of the balance, and the sufficiency of the other testimony upon this-question, might be regarded as obviating such an objection.

Upon the ground, however, that the referee erred in his assumption that he was controlled by the supposed decision upon a question of fact upon the former appeal, the judgment must be reversed..

We regret exceedingly that this should be the result of this appeal, believing, in view of what has already occurred, and to-prevent further delay and expense in .settling two estates, that it would have been better could the questions of law which necessarily arise in this case be speedily determined by the appellate courts.

In view of appellants’ insistence, however, which we regard as well founded, there must be a reversal of 'the judgment, which is accordingly ordered, with costs to the appellant to abide the event.

Van Brunt, P. J.

I do not concur in the view which seems to pervade the within opinion that, although the general term may reverse a judgment because the evidence was not sufficient to support the finding of a referee or jury, that upon a new trial, even if no more or other evidence is offered, the referee or jury may make the same finding which the court at general term had held the evidence did not support. But the referee in the case at bar went farther than this. There was other and additional evidence-offered, but because it did not in his opinion radically change the whole aspect of the evidence he felt himself bound by the ruling of the general term.

How the referee could determine exactly what amount of additional evidence would have caused the general term to have-sustained the finding which they reversed, I cannot imagine,, and when new evidence was. given it seems to me plain unless-the evidence was absolutely without any probative value whatever, that it was the duty of the referee to weigh the whole evidence and to give judgment according to the conviction impressed upon his mind by the whole evidence, and not to conjecture or guess as to how the general term might be impressed thereby. I think, therefore, that the referee erred, and there should be a new trial, with costs to appellant to abide event.

Andrews, J., concurs in the result.