text:
    Lawrence Anselment, App’lt, v. John Daniell et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed June 5, 1893.)

    Negligence—Contributory.
    While plaintiff was engaged with fellow workmen in paving a street west of the car tracks, and was in a stooping posture close to the track, defendants’ team approached on a fast trot on the tracks, and when it reached the spot where plaintiff was, he turned his head to adjust a block, and was struck by the hub of the wagon. It appeared that plaintiff was plainly visible from both directions, and that there was plenty of room for vehicles east of the tracks. Held, that plaintiff was not guilty of contributory negligence, and that the sole cause of the injury was the conduct of defendants’ servant.
    Appeal from a judgment for defendants which dismissed the complaint for failure of proof. Action to recover damages for injuries sustained through the carelessness of defendants’ servant in. the driving of their team. The facts appear in the opinion.

      Edwin G. Davis, for app’lt; Abel E. Blackmar, for resp’ts.
   Bischoff, J.

All persons are alike under reciprocal obligation .to exercise ordinary care, the one to avoid doing injury, the other to avoid being inj ured. Ordinary care is that degree of precaution which an ordinarily prudent person would exercise under like circumstances; and negligence, in a legal sense, arises from the omission to exercise it. The presumption is that every one will do his duty ; so one person may rely upon another’s observance of ordinary care, and neither is required to anticipate the other’s neglect in that respect. Much less is a person required to use extraordinary vigilance to avoid receiving injury from another’s anticipated neglect of ordinary care to avoid causing it, or to be watchful of another’s anticipated wanton or reckless conduct. Observing the above fundamental rules, it is impossible, upon attentive consideration, to resist the conclusion that the uncontroverted facts in the case at bar demonstrate that the conduct of defendant’s driver was the sole causa sine qua non of plaintiff’s injury.

Plaintiff was a paver employed, with others, in paving Broadway between Twentieth and Twenty-first streets, on the westerly side of the railroad tracks running longitudinally through the centre of the roadway. Between the rails, and to the east of the tracks, the roadway was in safe and suitable condition for the passage of vehicles, the space east of the tracks being sufficient for that purpose. In the afternoon of October 26, 1891, in broad daylight,” plaintiff and his fellow workmen were engaged in the performance of their work. Plaintiff was, at the time of the collision, at work close to the westerly rail of the tracks, and about to start a new course of the pavement running Iatitudinally across that part of the roadway which was west of the tracks. He was in a kneeling position, arid was plainly visible to all persons approaching from a northerly or southerly direction.

Defendants’ team was being driven at a “ fast trot” in a northerly direction in the tracks and on the rail close to which plaintiff was at work. Just as the hub of one of the wheels of defendants’ wagon had reached a point close to his head plaintiff turned about in an easterly direction, intending to readjust a paving block in its position at the rail. As he did so, his head came into violent contact with the hub, and thus he sustained the injury for which he sought compensation in this action. Plaintiff admitted on the trial that he did not look about for approaching vehicles before turning to adjust the paving block, but it is obvious that this employment necessarily demanded his attention and the use of his sight. The noise of the approach of defendants’ team was in some degree subdued because of the fact that it was being driven in the track, and rendered altogether inaudible to plaintiff by the clangor which unavoidably attended the performance of the work he and his fellow workmen were employed in. From the facts detailed as above, it is incontestably apparent that if defendants’ driver had, consistently with the dictates of common prudence, when he observed plaintiff in close proximity to the rail upon which he was driving the team, diverged from his course in an easterly direction for a sufficient distance to escape contact, instead of persisting in his course in the track, the collision could not have occurred and plaintiff would not have been injured. Obviously, therefore, the driver did not exercise ordinary care. Hence, he was negligent It is no more an answer to this charge of negligence that the driver could not anticipate that plaintiff would move about or turn his head just at the instant when the team was passing, than it is to say that the driver of a vehicle in a public street is exempt from the consequences of his reckless driving because he could not anticipate that the person run over would attempt to cross the street just at the time when it suited the driver to indulge his recklessness. It is reasonable to apprehend the presence of pedestrians on the street, and it is no more unreasonable to require -defendants’ driver to have apprehended, particularly so because of the character of the work in which plaintiff was engaged at the time, that the latter would move about It is the driver’s reckless assumption of the risk that plaintiff would not move about and so sustain injury which constitutes the gravamen of his negligence.

Plaintiff was lawfully and necessarily in the roadway engaged in the performance of duty. He was absolutely safe from all risk of injury by passing vehicles, excepting only such as would arise from the negligence of the drivers of those vehicles, a risk which was avoidable by the drivers with the exercise of ordinary care. Upon their exercise of such care plaintiff had a right to rely. He was not obliged to anticipate their wanton and reckless conduct, unless indeed it may be successfully claimed that greater vigilance is required to escape the imputation of contributory negligence than to avoid a just charge of negligence; that extraordinary care is required to avoid being inj ured, and ordinary care only to avoid doing injury. Plaintiff’s occupation imperatively demanded his attention and the use of his eyes. The noise of approaching vehicles was unavoidably inaudible to him. His person was plainly visible to the drivers of approaching vehicles, a fact in itself sufficient to excite the caution of an ordinarily prudent per°son. To hold him, employed as he was, to the exercise of con- ° stant vigilance to avoid injury from the want of ordinary care on the part of the drivers of vehicles incessantly passing on a public thoroughfare, means either that he must expose himself and his fellow workmen to the risk of injury from inattentive performance of his work, or that he must abandon his work altogether, W'e are unable to see wherein plaintiff was at fault, and without fault he cannot be said.to have been guilty of contributory negligence.. Shearman,.& Redfield-on -Negligence, §28.

The facts should have been submitted to the jury, and -it -. was-error to- dismiss the complaint

Judgment reversed-.and a new trial ordered,-with coststo .appellant to. abide -the. event.

Booestaver and Pryor, JJ., concur.


source: Caselaw Access Project

author: Bisohoff, J.

license: Public Domain

text:
    Oliver H. Perry, App’lt, v. The Erie Transfer Co.,Resp’t.

      New York Common Pleas, General Term,

      Filed June 5, 1893.)

    1. JuBisDicTicm—Contract made, out of state by non-residents.
    " The parties hereto; who. were residents of New Jersey,; made a contract-in that slate by which plaint j£E was to furnish defendant with trucks .and-horses as needed. In an action -therefor there was no evidence that payment- therefor was to be made in this state, hut-only that bills were presented and certain checks given were payable.-here. Held, that the courts of this state had.no jurisdiction of the.action.
    2. Same.
    Jurisdiction cannot be conferred by a defendant’s admissions or consent, when-the £acts;in evidence show ,that the court has.none of the subject, matter.
    Appeal from adjudgment of the general term of-the city court of New York, which reversed., a judgment for plaintiff rendered upon-¡a. verdict, directed'by the court at .trial term and awarded judgment absolute for defendant for dismissal of ;the. complaint, -with -.costs.
    Action.to recover,fpr the hire of teams.upon.a contract made-in New Jersey between a, .resident of .that state and. a corporation created by .-its laws.

      Strong & Cadwalader, for app-lt; Andrew Wesley Kent, for resp’t.

       Affirming 49 St. Rep., 36.

   Bisohoff, J.

This is an action by a non-resident of this state, against a .foreign interdicted, to our courts by § 1780 of "the Code of Civil Procedure, except in the instances therein mentioned. On á former trial we reversed .a judgment for plaintiff because it- did not appear that the cause óf action arose within.this state, and directed a new trial .to enable plaintiff to submit further evidence if such he had.. Perry v. Erie Transfer Co., 28 Abb. N. C., 430; 46 St. Rep., 185. The second.trial again, resulted in a judgment for plaintiff which was reversed' and judgment absolute directed for theidéfendant. for dismissal of the complaint by 'the general term of the court, below. The justices at general term were of the opinion that the evidence, introduced'for plaintiff on the second trial was insufficient to remove the objection to the maintenance of this action,, bnd in their vie:ws we concur.

.The. denial in the answer was sufficient to put the allegations-of the amended complaint respecting the place of payment in issue,,B.aylies’ Code Blending, 226,.§4, but in any event plaintiff is precluded from availing'himself .of any objection to the answer for the first time on appeal. Besides, jurisdiction could not have been conferred by defendant’s admissions or consent when the facts in evidence show that the court has none of the subject-matter. There was no course open but to dismiss the complaint. See the opinion of this court on the former appeal. The judgment of the general term below must, therefore, be affirmed with costs.

Judgment of the general term below affirmed, with costs.

Pryor, J., concurs.


author: Bischoff, J.

text:
    William Gauld, Resp’t, v. Julius Lipman et al., App’lts.

      (New York Common Pleas, General Term,

      Filed June 5, 1893.)

    1. Monet had and received—Acceptance of orders on fund.
    Defendants became obligated to advance money in instalments under a building loan agreement to one H., who gave plaintiff orders on them, which they agreed to pay out of certain instalments, but subsequently refused to pay on demand unless he would cancel a certain mortgage held by him against H. Held, that such refusal did not authorize an inference that the instalments had matured, and in the absence of evidence that such was the case, there was nothing to indicate that defendants had received the moneys to which plaintiff was entitled, and that an action for money had and received could not be maintained.
    2. Same.
    An implied promise in assumpsit does not arise when the party against whom the recovery is sought has incurred liability to the party seeking recovery for the same moneys upon an express contract of which no-breach or rescission is shown.
    Appeal from a judgment of the general term of the city court of New York, which affirmed a judgment at trial term entered upon a verdict directed by the court.
    Action -to recover in implied assumpsit for moneys alleged to have beendiad and received by defendants to plaintiff’s use.

      Jacob Fromme, for resp’t; George W. McAdam, for app’lts.

       Reversing 49 St. Rep., 880.

   Bischoff, J.

The complaint was upon defendants’ implied promise to pay one thousand dollars, alleged to have been had and received by them to plaintiff's use; and the answer denied the receipt of the money. On the trial it appéared affirmatively from the testimony of both defendants that neither of them had, in fact, received any money whatever for the plaintiff, and this was left unchallenged unless the remaining facts in evidence justify an inference of its receipt.

Defendants had entered into a building loan agreement with one George J. Hamilton, pursuant to which the former were to-advance the latter a specified sum of money in instalments. Hamilton was indebted to plaintiff in $1,000, and issued to him two-several orders on defendants, each for $500, which the latter accepted, one “ payable when the eleventh (11th) payment becomes due and payable according to terms of builders’ loan contract on premises n. e. corner Ninetieth street and Tenth avenue,” and the other “ payable when last payment becomes due and payable ” according to the terms of the said contract. Some time after the acceptance of these orders by defendants they were asked to pay the several amounts thereof, which they refused to do unless plaintiff would consent to release a certain bond and mortgage for $1,300 held by him against Hamilton, and which defendants claimed at the time operated, in a manner left to our conjecture, to prevent Hamilton from proceeding with work as a builder. Both parties having asked the court to direqt a verdict, such a direction was made in plaintiff’s favor.

We are of the opinion ^ that defendants’ motion. should have been granted or the complaint dismissed. Defendants’ refusal to pay unless plaintiff would release Hamilton’s bond and mortgage did not authorize an inference that the instalments to become due from defendants under their building loan agreement had matured, and in the absence of evidence that such was the case there was nothing to indicate that defendants had at any time received from any source whatever any moneys to which the plaintiff was entitled. Hence there was a failure of proof respecting the cause of action alleged in the complaint. Beardsley v. Root, 11 Johns., 464; Anthon’s N. P., 111.

Furthermore, an implied promise in assumpsit does not arise when the party against whom the recovery is sought has incurred liability to the party seeking recovery for the same moneys upon an express contract of which no breach or rescission has been shown. Raymond v. Bearnard, 12 Johns., 274; Jewell v. Schroeppel, 4 Cowen, 564; Chesapeake & Ohio Canal Co. v. Knapp, 9 U. S., 222; Bank of Columbia v. Patterson, 3 id., 351; Washington, A. J. G. S. Packet Co. v. Sickles, 13 id., 479; Demott v. Jones, 16 id;, 442; Ingle v. Jones, 17 id., 762.

In such a case, the party seeking recovery must abide by his contract. In the present instance, defendants are liable to plaintiff upon their acceptances to pay when the instalments under the building loan agreement have respectively matured. Until the maturity of the instalment is shown, the contract of acceptance must be regarded as subsisting and open.

Plaintiff could not, in this action, recover upon the acceptances because of the rule which requires the recovery to be secundum allegata et probata. Romeyn v. Sickles, 1 Silvernail’s Ct. App., 594; 108 N. Y., 650; 13 St. Rep., 864.

The judgment, of the general and trial terms of the court below must be reversed, with costs to the appellants to abide the event.

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


author: Per Curiam.

text:
    John Bowe, County Treas’r, Resp’t, v. Charles M. Jenkins, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 9, 1893.)

    1. Taxes—Assessment por personalty—Double residence.
    Where a person has two residences, city and country, and his principal place of business is in the citv, he is taxable for personal estate in the ward of the city in which he resides.

      3. Same—Laws 1850, chap. 92; 1851, chap. 176.
    The acts of 1850 and 1851, in relation to the assessment of personal property, were not repealed by chap. 392, Laws 1883.
    3. Same—Jurisdiction op city court in Albany.
    A tax properly assessed for personal property may be deemed a debt “ on contract implied," and hence the city court of Albany has jurisdiction of an action to recover such tax from a resident of said city.
    Appeal from judgment of the Albany county court, entered the of a referee.
    The facts appear fully in the report of the referee, as follows :
    W. L. Learned, Referee. This action was commenced in the ■city court, and after judgment was appealed to this court. It is brought to recover a personal tax levied against the defendant as a resident of the fourteenth ward in Albany in the year 1889. No question is made on the regularity of the proceedings in levying the tax or in the subsequent proceedings before the action was brought. Two questions are made: First, whether the defendant in that year was a resident of that ward, and taxable there for personal property. The other, whether the city court had jurisdiction of the action.
    The defendant was born in Rensselaerville. Upon coming of the age of twenty-five, and in the year 1835, he removed to Albany to practice his profession, the law. He formed a partnership, Jenkins & Cooper, which continues to the present time, and which has always had and still has its office in Albany. For all the time ■since 1835 the defendant has practiced his profession in Albany; but of late years, since about 1882, he has done comparatively little business. Such business as he has done of late years has been principally that of old clients, many of them women, and has been to a great extent done as a matter of charity rather than of profit. The defendant was married, and had a family. For many years prior to 1882, and from that year down to the present time, he lias kept house in Albany. From 1851 till 1886 he kept house on the corner of North Pearl and Steuben, in a house belonging to him. In that year he sold that house, and hired No. 292 Hamilton street, where he kept house fór a year. He then hired No. 65 Lancaster steet, where he has kept house ever since.
    About 1850 he bought some land in Rensselaerville, to which he has added by subsequent purchases. In the house on this farm he and his family have lived for part of the year every year ■since, with the exception of a year or so when he was absent from the country. He has worked the farm at his own expense through farmers. He has kept the house on the farm open all the year, and it has been occupied substantially all the time by some of his family. He has also kept open his house in Albany all the time with few exceptions, and that has been occupied also by himself and his family. It does not appear precisely what part of the time of each year he has spent in his house in Albany, and what time he has spent on his farm in Rensselaerville. But his custom in this respect seems to have been substantially the same during all the years, from the time when he first owned the Rensselaeryille farm down to the present time.

      It is admitted by the defendant that down to the year 1882 he was a resident of Albany; and it is shown that down to that year he was assessed for personal property and paid taxes there.
    In the year 1882 the defendant desired to change his residence from Albany to Rensseláerville. To accomplish that purpose he informed the-assessors of Albany-in that year that'he had made such change, and that he was no longer taxable for personal property in Albany. ; Relying on that statement those assessors took off his personal assessment, and that assessment was not again, pub -on in Albany until 1889. The defendant about that time also had an interview with an assessor in Rensseláervil le, the result of which was that the assessors óf that town did assess' him for personal property, and have continued to do so in each year dowii to the present time. It appears further, that’in signing wills as a witness, and in executing instruments since that' time, the defendant-has (with perhaps one exception) described himself as a resident of Rensseláerville. From that time also the defendant voted every year (with some unimportant exceptions) at Rensseláerville, and never afterwards voted at Albany; where, prior to'1882, he had always voted. These are the acts which are urged as forming a change of residence. Undoubtedlythe defendant states truly that he intended at that time to make a charige of his residence from Albany to Rensseláerville. His mode of life,'however, underwent no change at that time. He states that from that time he occupied his Rensseláerville farm as his principal residence. But that evidently means only the mental intention with which he regarded it, because there was no actual change in his manner of life. He lived in his Albany house for a part'of the year as he had before done, and on his Rensseláerville farm for the other part. ' His family, or some of them, including grandchildren, were with him in. each place. His grandchildren went to school in Albany; he had his law office in'Albany as before, and he had his farm in Rensseláerville which he worked through a farmer. He states that he derived little or no profit from the farm except the support which his family may have obtained from it His law books remained and remain in Albany, though he has allowed other lawyers to use them. About half of his miscellaneous library is in his house in Albany, and half in his Rensseláerville house. Each of the houses is well provided with ‘furniture. When he went from his house in Albany to his house in the-country he was accustomed not to shut up the former, but to leave it in care of servants.
    In 1889 the assessors of Albany, believing that the defendant had never really changed his residence and that he still resided in Albany, assessed him for $5,000, personal property, in the Fourteenth ward, within which is No. 65 Lancaster street. The. tax thereon is '$100. The interest collectible is thirty-seven dollars and fifty cents; and for this total of $137.50 this action is brought.
    The important question, then, is, whether the deféndant did, in 1882, accomplish his intention of' making an actual change of residence. It is evident that if by the intention and by the acts above -mentioned such change was effected, .it -might have been effected in a similar manner long prior to the year 1882. For the defendant lived and did business in the same way in that year and in subsequent years as he had done for many years before. The description of himself as of Rensselaerville in instruments and as a witness may be considered as evidence of his intent. The voting in Rensselaerville is also evidence of intent. Such acts and statements are often important to qualify some change in a place of abode and to show the intent with which such change is made. Jacobs on Domicil, § 451, etc. For instance, when a man removes from one place to another he may do so either as a temporary matter or as a permanent change. Then such statements and the act of voting may tend to explain his intent. For it is well known that a man may for a long time live at a place other than his legal residence and jet not lose such residence. Dupuy v. Wurtz, 53 N. Y., 556. Such matters as have been mentioned above are, therefore, rather proof of intent than proof of an actual change.
    When a residence in some place is once shown, the presumption is that it continues until there is proof that the person has actually changed his residence. The defendant had for some thirty years before 1882 been unquestionably a resident of Albany. Such residence must be presumed to continue until a change is shown. This is not only a common law principle, but it is established by statute in regard to taxation. Section 2, chapter 392, Laws of 1883, declares that “ when a person has acquired a residence in any town, village or ward in this state and shall have been taxed therein, such residence shall be presumed to continue for the purpose of taxation until he shall have acquired another residence in said state or shall have removed therefrom.” How, the defendant had acquired a residence in Albany and had been taxed therein prior to 1882. His residence there in Albany is presumed to continue until he shall have acquired another residence in said state. And the inquiry must be, whether after 1882 the defendant did acquire such other residence. The statute contemplates some act of the person by which he may subsequently acquire •a new residence in the state or may remove from the state. Thus it plainly has in view some act which is as unmistakable as a removal from the state would be, some open and manifest change of the mode of life. How, certainly, as a general rule, a person does not gain a new residence except by some change in the place of his abode, accompanied by an intent to acquire such new residence. Jacobs on Domicil, §§ 125, 126 and 127.
    A change of abode, without such intent, is generally insufficient ; and a general intent without actual change is equally insufficient.
    In the present case the defendant evidently made no change, except to tell the assessors of Albany that he was no longer a resident of that city, and to inform the assessors of Rensselaerville that he had become a resident of that town, and, further, to describe himself in papers as of Rensselaerville and to vote there; but, in fact, his -inode of residence continued exactly the same, and he could the next year in the same manner have declared himself once more a resident of Albany, and could thus have vibrated back and-forth year after year as his annual inclination might prompt.
    The defendant urges that in 1882 he did all he could to change his residence. Far from it. If he had wished to change his residence effectually, he should have given up his Albany house, selling or renting it as he might have chosen, but not keeping house in Albany at all, and, therefore, not enjoying those rights and conveniences which a resident of the city has.
    So far as I know, the word domicil, though of frequent use in law books, is not used in our statutes. They use the word residence, and thus it happens that that word "has in different statutes different meanings. Residence, when required for the purpose of holding office, has been held to be equivalent to domicil. People v. Platt, 50 Hun, 454; 20 St. Rep., 249; Silvey v. Lindsay, 107 N. Y., 55; 11 St. Rep., 185; Isham v. Gibbons, 1 Brad., 69.
    Sometimes, however, the word residence is used in a more general sense, as where it is said that a man may have two residences but can have only one “ domicil.” Douglas v. Mayor, 2 Duer, 110; People ex rel. Lawrence v. Tax Com., Dec., 1891, Sup. Ct., Sp. T., New York Law Journal.
    How, it was in recognition of the fact that many persons during the year have two residences (in that looser meaning of ihe word) that the statute of 1850, chap. 92, and that of 1851, chap. 176, provided that if a person possessed of such personal estate-should reside during the year in which taxes may be levied in two or more counties, towns or wards, his residence, for the purposes and within the meaning of this section, shall be deemed and held to be in the county, town or ward in which his principal business shall have been transacted. Admitting, for the sake of argument, that in a case like that of the defendant he may choose which of his residences shall be his domicil for the purpose of voting and holding office, he is not allowed to make-such choice in respect to taxation. The statute settles that matter for him, and settles it in a just and reasonable manner. In the present case it is plain that the defendant has all along, from before 1882 and down to and including 1889 (if he did not reside in Albany only), had two residences in two towns, viz., the town of Rensselaerville and the city of Albany. The question, then, is, where was his principal business transacted ? Certainly in Albany. His business was that of a lawyer, and that business was transacted in Albany. See People ex rel. Lawrence v. Tax Com., ut supra.

    The defendant claims that he was in the business of cultivating his farm. But that was not in accurate language his business. It was not carried on for profit, and was done not by defendant, personally, but through farmers. People ex rel. Taylor v. Commissioner of Taxes, 18 St. Rep., 748.
    The defendant urges that the provisions of the laws of 1850' and 1851 are repealed by the law of 1883, chap. 392, above-cited. The title of that chapter explains its object: “To further define property that shall be subject to taxation.” The object is to make debts and obligations owing to persons residing in the state subject to taxation, “ wherever such securities shall he held It was not intended to change the rule for determining the residence for taxation of the holder, and there is nothing which has that effect. It declares that the property described shall be taxable in the town, village or ward in which the owner shall reside. This is the rule as to all personal property. And the statutes of 1850 and 1851 declare that when the person has two residences, then, for the purpose of taxation, that residence where he has his principal place of business shall be deemed his residence.
    If § 2 of the statute of 1883 is urged as establishing the defendant’s residence for taxation at Rensselaerville, the argument goes too far. For it .establishes his previous residence for taxation at Albany, and, therefore, defeats his claim, as has been above stated.
    The object of the statutes of 1850. and 1851, above cited, is plain. A man has a residence in a city and does business there. He also has a residence in the country or by the seaside, where he spends his summer. How, as he has the benefit of the city in the way of business, social life, education and the like, it is unreasonable that he should escape the necessary burden by reason of his summer migration, or by calling himself a resident of the country, and by notifying the country assessors that they may consider him such a resident. Therefore, the statute has declared, however it may be for other purposes, that for the purpose of taxation he shall be deemed to be a resident where his business is.
    But it is further urged that as the defendant’s law office was in the sixth ward he was not taxable in the fourteenth, where his residence was. A careful reading of the section will show that there is no force in this. The case provided for is when a man resides in “two or more counties, towns or wards.” In the present case the defendant had a residence in two towns. Then the statutes say his residence for taxation shall be deemed to be in that county, town or ward in which, etc. That is, if his residence is in two towns, he is taxable in that town in which his business is. If his residence is in two counties, then in that county in which his business is. If in two wards, then -in that ward in which his business is. That rule decides that defendant is taxable in Albany. Being taxable in Albany, he must be taxed where his Albany residence is; that is, in the fourteenth ward. Se decides Wilcox v. Rochester, 129 N. Y., 247; 41 St. Rep., 511.
    In brief,' the view most favorable to defendant is that whether or not he succeeded in changing his domicil in 1882, he had two residences, in the loose meaning of the word, in the year 1889. That he was taxable in that residence where his principal business was transacted, and that was Albany.
    An examination of the Massachusetts cases shows that they give little aid in determining this question. Ho such provision is passed upon as that contained in our statute relative to two residences in one year.

      A point is made that the city court had no jurisdiction. Taxes ■duly assessed are personal liabilities, -as has been often- said in our-decisions, They cannot be- said to-arise on tort. They must be considered as debts on contract implied. While not strictly judgments, they are in the nature of a judgment.' Matter of Lewis, 81 N. Y., 421; Stimsonv. Wrigley, 86 id., 332; Litchfield v. Vernon, 41 id., 135.
    I am of'the opinion, therefore, that the city court had-jurisdiction and that plaintiff should recover.

      Tracey & Cooper (James F. Tracey, of counsel), for app’lt; Mark Cohn, for resp’t.
   Per Curiam.

We are of the opinion that the evidence was sufficient to justify the finding of the learned referee that defendant, from 1882 down to and including 1889, assuming he did not reside in Albany only, had a residence in the city of Albany and one also in the town of Rensselaerville, Albany county, and that his principal place of business was in the city of Albany. He was, therefore, properly taxed in 1889 for personal estate in that ■city, under the provisions of the acts of 1850-1851. It is suggested by defendant that said acts tvere repealed or superseded by •chapter 392, of the Laws of 1883. The latter act does not in terms •supersede the former statutes nor is it inconsistent therewith. The act of 1883 was not intended to apply to a case like this, where ■one has two residences and each in different towns. That a person may have two residences although but one domicil, under the acts of 1850-1851 cannot be doubted. Bell v. Pierce, 51 N. Y., 12 ; Bartlett v. Mayor, 5 Sand., 44.

We do not understand the acts of 1850,1851, where one resides in different towns during the year for which he is taxed, as intending only “ successive ’’ residences, as claimed by defendant. The language of the act cannot be so construed properly.

The defendant being taxable in Albany where his principal business was carried on, was in that city properly taxed in the ward where he resided. Wilcox v. City of Rochester, 129 N. Y., 247; 41 St. Rep,, 511.

We agree with the view of the learned referee that the tax properly assessed against defendant in the city of Albany in 1889 may be deemed a debt “ on contract implied,” and hence that the •city court of Albany had jurisdiction of the action.

The judgment should be affirmed, with costs.

Mayham, P. 3., Putnam and Herrick, JJ., concur.


author: Mayham, P. J.

text:
    Louise F. Mars, Adm’rx, Resp’t, v. The Albany Savings Bank, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 9, 1893.)

    Interpleader—Gut.
    In an action by an administrator to recover a savings bank deposit, an affidavit alleging the presentation to the bank of what purported to be copies of orders made by the intestate, unaccompanied by any originals or the pass book, and that the deponent was informed by the attorney for the persons making such presentation that the orders and pass book had been deposited ■with a third person, is insufficient to authorize an order of inter-pleader, as such statements furnish no evidence authorizing a presumption of a gift by the intestate either inter vivos or causa mortis in the absence of the original orders or proof by affidavit of said claimants or said depositary.
    Appeal from order denying motion by defendant for an order ■substituting Helen Stanley and Kate A. Judge as defendants and discharging the bank from liability on payment of the fund into court.
    The following is the affidavit upon which the motion was made:
    Theodore Townsend, of the city of Albany, being duly sworn, says that he is the treasurer of Albany Savings Bank, the defendant in the above entitled action; that said action has been brought and is now pending in this court to recover from said Albany Savings Bank the sum of seven hundred and seventy-three dollars and seventy-two cents ($773.72), now on deposit in said bank, with interest thereon, and claimed by the plaintiff in this action to be her property, as administratrix; that the complaint herein was served upon said defendant, Albany Savings Bank, on the 5th day of December, 1891; that no answer has been interposed to said complaint; that this court was heretofore and on the 29th day of December, 1891, moved for a similar ■order to the one now moved for, which motion was denied without prejudice to its renewal upon additional proof; that an appeal to the general term of the third department was drdy taken from such order of denial, and that on the 2d day of July, 1892, said general term affirmed the order appealed from.
    The deponent further says that Helen Stanley and Kate A. Judge, who are not parties to said action, prior to the beginning -of this suit, but who are, or claim to be, daughters of said John H. Mars, made and do now make a demand of said bank for the payment to them of said sum sought to be recovered in this action, claiming to be entitled to the same, and to be the lawful owners thereof; that said demand was and is made without collusion with the defendant herein; that the nature of the claims of said Helen Stanley and Kate A. Judge and said plaintiff to said property, so far as known to this deponent, is as follows, namely: that the plaintiff in this action claims the said sum as administratrix of the late John H. Mars, deceased, and that the said Helen Stanley and Kate A. Judge claim the same by virtue of an alleged gift to them of said fund by the said John H. Mars, deceased, their father, during his lifetime.
    That heretofore the said Helen Stanley and Kate A. Judge duly presented to said bank, and filed with it, copies of two certain orders purporting to be signed by said John H. Mars, dated September 15, 1888, directed to the treasurer of said bank and directing the treasurer thereof to pay to each of said Helen Stanley and Kate A. Judge, respectively, the sum of one thousand dollars ($1,000), as per accompanying pass book No. 61,883, and then .stated to said bank that said orders, together with the pass book therein referred to, were duly delivered to a certain Mrs. Mary Gordon, with directions to deliver the same to said Helen Stanley and Kate A. Judge upon the death of said Mars; that as this deponent was informed by Francis C. Devlin, Esq., the attorney for said claimants, said orders were duly delivered to said Stanley and Judge as directed, but that said pass book, for some purpose unknown to this deponent, and unexplained to it by said.claimant or their attorney,- came into the possession of said John H. Mars prior to his death, from said Mary Gordon, who failed to repossess herself of the same, and that it subsequently came into the possession of the plaintiff as the administratrix of said John H. Mars.
    That this suit is brought to recover the balance now due on said account number 61,883 (the account which said orders were drawn against, and which was represented by said pass book number 61,883, which stood in the name of said John H. Mars at the time of his death), which said account was, prior to any knowledge on the part of this defendant or any of its officers of the claim of said Stanley and Judge thereto, and after the death of said John H. Mars and the appointment of this plaintiff as his administratrix, transferred on its books so as to stand in the name of this plaintiff as such administratrix.
    That said plaintiff, after her appointment as administratrix, deposited in said account the sum of one thousand eight hundred and thirteen dollars and sixty-two cents ($1,813.62), and subsequently, and prior to any notice as aforesaid, drew out said sum and a further sum sufficient to reduce the balance in said account of one thousand one hundred and eighty-six dollars and thirty-eight cents ($1,186.38) at the time of said John H. Mars’ death, to the sum of seven hundred and seventy-three dollars and seventy-two cents ($773.72), which latter sum, with interest thereon from July 1, 1891, is still on deposit in said bank and claimed by the plaintiff herein, and álso by the said Helen Stanley and Kate A. Judge.
    That the sums of money withdrawn from the account as aforesaid, at various times, by Louise F. Mars, as administratrix of John H. Mars, deceased, and amounting to two thousand two hundred and fifty dollars ($2,250), the sum of one thousand eight hundred and thirteen dollars and sixty-two cents ($1,813.62) was, and was considered and intended to be by said Albany Savings-Bank, a part of, and taken from, the sum deposited to the credit of said account by said Louise F. Mars, as administratrix, etc., and only the balance of the money so withdrawn, or the sum of four hundred and thirty-six dollars and thirty-eight cents ($436.38) was taken from the amount on deposit in said bank to the credit of said account at the time of the death of said Mars, and accrued interest thereupon, and that the sum now on deposit in said bank is the balance of the sum on deposit in said bank to the credit of John H. Mars, deceased, at the time of his death.
    And deponent further says that the defendant has no interest in the question to whom said debt or deposit belongs, and is ignorant of the grounds and merits of the respective claims made to said fund or debt, except as above set forth, and does not know to which of the claimants thereof it may safely pay said fund or debt, or which of them is legally entitled to the same, and believes said claims to be made in good faith, and offers to pay the said sum so claimed into court, or to such person as this court may direct.

      Tracey & Cooper (James Fenimore Cooper, of counsel), for app’lt; Chase & Delehanty (Norton Chase, of counsel), for resp’t.
   Mayham, P. J.

We fail to see that the material facts on this motion differ in any essential particular from those presented on the former motion in this case.

The presentation to the defendant of what purported to be copies of orders purporting to have been made by the testator, unaccompanied by any originals or the original pass book, and the hearsay account of the attorney for Stanley and Judge, of the alleged deposit of the order and pass book with Mary Gordon, carries with it very little weight, and furnishes no evidence on which either the defendant or the court is authorized to presume a gift by the intestate, either inter vivos or causa mortis, in the absence of the original orders, or any proof on this motion by affidavit of Stanley or Judge or Gordon, all of whom are presumed to be living, and one of whom, at least, competent to testify upon this subject of the genuineness of the adverse claim of Stanley and Judge for this money.

Such evidence could have obtained on this motion, if attainable, or its absence could, at least, have been accounted for, if this adverse claim is based upon any substantial grounds.

On the whole, we do not think the case essentially different from the one disposed of by this court on a former motion, and see no reason for changing the views expressed in that case.

We cannot agree with the contention of the learned counsel for the appellant, that the law upon this subject, as declared in this department, is different from that in other departments in this commonwealth.

The opinion of Learned, P. J., in Williams v. Etna Life Ins. Co., 8 St. Rep., 567, which is followed in this case, is in harmony with that of Van Brunt, J., in Nassau Bank v. Vandes, 44 Hun, 58; 8 St. Rep., 415, and O’Brien, J., in Feldman v. Brand Lodge, 46 id., 122, and is not in conflict with, but distinguishable from, most of the cases cited by the learned counsel for the appellant.

Order affirmed, with ten dollars costs and printing disbursements.

Putnam, J., concurs in result; Herrick, J., not acting.


text:
    William H. Townsend, Resp’t, v. Albert Stewart, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 9, 1893.)

    Assault—Submission of questions to jury.
    Plaintiff, who was a bonk agent, drove into defendant’s premises pursuant to an appointment, as he claimed, and upon being ordered out refused to go, whereupon an affray occurred in which he was hurt. The evidence as to whether plaintiff was properly on the premises by permission or as a trespasser, or so remained thereon, and as to which of the parties committed ■ the first assault was conflicting. Held, that these were questions of fact for the jury, and were properly submitted to them.
    Appeal from judgment entered upon the verdict of a jury, and from order denying a motion for a new trial upon the minutes of the trial judge.
    Action for assault. Plaintiff claimed that he drove into defendant’s yard in pursuance of an appointment to call in relation to the sale of a book; that defendant immediately seized the reins and tied the horse with them to the fence, and pulled plaintiff from the carriage, took his whip and struck him with it, breaking the bones in his hand. Defendant’s evidence tended to show that plaintiff was to call the following week; that -when he called lie told him he would have nothing to do with the book; that plaintiff became insulting and defendant ordered him off the premises ; that plaintiff would not go and struck at defendant with his whip, saying that if he was not afraid of the horse running away he would get out and whip him ; that defendant then tied the horse and plaintiff got out and struck defendant twice ; that defendant then caught the whip and pulled it away, and upon plaintiff following him in a threatening manner, struck him twice, and plaintiff then went away.

      Young & Kellogg (L. H. Northup, of counsel), for app’lt; Fred A. Pratt, for resp’t.
   Mayham, P. J.

We have examined the various exceptions to the charge of the judge and his refusals to charge, and see no error in the same for which the judgment in this case should be reversed.'

The case was mainly submitted as a question of fact under proper instructions by the court as to the law bearing on the facts as presented by the proof on both sides.

It was a disputed question of fact whether the plaintiff was properly on the defendant’s premises by his invitation or permission, or was there as a trespasser. Under the evidence we think that that was properly submitted to the jury as a question of fact.

It was also a disputed question whether the plaintiff remained on the defendant’s premises after being ordered off, so as to make him a trespasser.

We think the instructions of the court in his charge laid down the correct rule of law, and that that question was also properly submitted to the jury.

Also the question as to which of these parties under the evidence committed the first assault was an open question of fact properly submitted by the judge to the jury; and so of every question which the judge was requested by the defendant to give positive instruction as to the fact, was by him properly submitted as a question of fact for the j ury under proper instruction as to the law.

On the whole case the charge of the judge seems entirely fair and impartial, and we discover no error of law in it for which the judgment should be reversed.

The questions o£ fact were for the jury, and the evidence, although conflicting, was sufficient to uphold the verdict, and the "refusal of the judge to grant a new trial upon the minutes was not error for which his order can be reversed.

The judgment and order must be affirmed, with costs.

Putnam and Herrick, JJ., concur.


author: Herrick, J. Putnam, J.

text:
    Frederick Shultz, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 25, 1893.)

    Negligence—Railroads—Contributory.
    The highway at defendant’s station crosses the track twice, and between such crossings runs parallel with the tracks and a short distance therefrom. The gates at the crossings had been out of order for three months at the time of the accident, but were operated the following day. Plaintiff testified that when descending a hill from which there was a good view of the track, he looked or listened, but saw and heard nothing; that on leaving ; the first crossing he looked south and saw nothing; that when he reached the second crossing he was hailed, and his horse became frightened and backed towards the track, and his wagon was struck by a train coming from the south. There was evidence that the whistle was blown and the bell rung. Plaintiff lived in the neighborhood, and was familiar with the crossing, but testified that he was accustomed to look for the gates. Held, that under the circumstances the questions raised were peculiarly ones for the jury to pass upon.
    Appeal from judgment in favor of plaintiff entered upon a, verdict, and from order denying motion for a new trial.

      Frank Loomis (L. F. Longley, of counsel), for app’lt; Cady & Hoysradt (J. Rider Cady, of counsel), for resp’t
   Herrick, J.

This is an appeal from a judgment in favor of the plaintiff against the defendant; the action is founded upon the alleged negligence of the defendant, whereby the plaintiff was injured by an accident which. happened at Germantown in this state. The road of the defendant at that point runs north and south. The station is on the west side of the tracks ; the. tracks are crossed at two places, one north and the other south of the passenger station. The south crossing is a highway running east and west; on the east side of the defendant’s track, and upon land owned by the defendant, there is a roadway leading from the south to the north crossing about 104 feet in length; it crosses the railway track, passes around the passenger station of the defendant, and thence goes south until it reaches the south crossing. The west line of this road was about three feet east of the easterly rail of defendant’s track. The roadway was about eighteen feet in width, the traveled portion of it was the easterly part thereof, and was between nine and ten feet in width.

The defendant had gates at both the upper and lower crossing, but for some cause they were disabled, and had not been in use for some two or three months before the happening of the accident in question, although it appears that upon the day of and after the accident the gates were both lowered and raised. Upon the highway coming towards the defendant’s station from the east, and which is known as the Germantown road, and at a distance of-from 200 to 250 feet from defendant’s station, there is an elevation from twenty-five to thirty feet in height, and at that point the highway makes a bend to the north as it comes down the hill, and at the foot of the hill it makes another turn to the west, and crosses the tracks at the south crossing before spoken of. On the way down the hill and for at least 180 feet before the south crossing is reached, there is an unobstructed view of the defendant’s tracks south, for a distance of about three-fourths of a mile. The whistling post, as it is termed, is about eighty rods south of defendant’s station.

On the 7th day of April, 1891, the plaintiff was coming over this Germantown highway with a horse and wagon bringing a calf to defendant’s station, to ship over defendant’s road. On his way he picked up a neighbor who had some parcels with him and brought him along. He testifies that as he came down the hill approaching the station he looked or listened, he does- not say which, but did not perceive the approach of any train; as he arrived at the south crossing and a few feet from the rails of the defendant’s tracks, he stopped to let his passenger out, and then started north along the roadway to the east of the defendant’s tracks to reach the freight depot. He says that just as he started for the upper crossing he looked to the south, but saw no train approaching, and as he arrived near the north crossing one of the defendant’s station men hailed him and told him that a train was coming, his horse became frightened, backed towards the direction of the tracks, almost immediately thereafter the wagon was struck by a train coming from the south, the plaintiff thrown from the wagon and seriously injured.

The plaintiff testifies that he passed over the south crossing twice a day almost every day during the months of January and February preceding the accident, going to and from an ice-house upon the river bank near by, where he was employed.

It does not appear from the evidence whether he did or did not know the crossing gates were disabled, but he states that some time in January or February he remembers having seen them closed, that in coming to and from the ice-house, when he got to the top of the hill before spoken of, if he saw the gates open he drove on. “I saw when a train was in sight the gates were lowered, and when a train was past they would be opened. I have seen them down when they approached the track, and when I saw the gates down some train went past, but never saw a train go by when the gates were standing open.” He also stated that the day of the accident,- when he got to the top of the hill, he observed that the gates were open, that as he approached the north crossing he also observed that the gates there were open. The horse the plaintiff drove was one which was afraid of the cars.

The testimony shows that as the train was approaching the whistle was blown at the whistling post, and the bell was rung from that point until the accident happened; but the plaintiff asserts that he heard neither the bell nor the whistle. The passenger who was with him, the plaintiff, states that as they were coming down the road, from the hill, he saw the train approaching, .and also saw it approaching when he got out of the wagon, but that he did not mention it to the plaintiff. At the close of the plaintiff’s testimony the defendant moved for a nonsuit, on the ground that the plaintiff had failed to show any negligence on the part of the defendant and failed to show freedom from contributory negligence on his own part; the motion was denied, and was again made at the close of all the evidence in the case, and was again denied and the jury rendered a verdict for the plaintiff.

Ordinarily it is the duty of a person approaching a railway crossing to both look and listen before crossing the tracks, to discover whether there is any approaching train or engine which may endanger his safety while crossing. The evidence of the plaintiff is not satisfactory in that respect, and if there was no other element in the case I would be inclined to hold that he did not sufficiently discharge his duty in that behalf; but the duty of both looking and listening may be modified by circumstances; assurances of safety may be held out that will throw the traveler off his guard, and wittingly or unwittingly cause a noa-copipliance upon his part with those measures of safety which, - under ordinary circumstances, a neglect to comply with would justly prevent him from holding others responsible for resulting injuries. As it is said in Palmer v. The N. Y. C. & H. R. R. R. Co., 112 N. Y., 234-41; 20 St. Rep., 904: “ It is obvious that an open gate was a direct and explicit assurance to the traveler that neither train nor engine was rendering the. way dangerous, that none was passing. A closed gate'was an obstruction preventing access to the road; an open gate was equally positive in the implication to be derived from it, that the way was safe.”

Still the fact that such gate was open does not relieve the traveler from taking proper precautions for his own safety; it is still' his duty to be on the lookout for danger, and to exercise the same care that a man of ordinary prudence would have exercised under the same conditions. Oldenburgh v. N. Y. C. & H. R. R. Co.., 124 N. Y., 414-18; 36 St. Rep., 402.

The traveler is still bound to exercise ordinary and reasonable care, but the measure of his duty varies with the particular circumstances of the case, and its fulfillment must be determined by the jury. Palmer v. N. Y. C. & H. R. R. R. Co., 112 N. Y., 245; 20 St. Rep., 904.

The assurance of safety given by open gates may also be modified or increased by circumstances, as when they are opened in the view and presence of the approaching traveler.

In this case it appears that the gates were partly or wholly disabled, although they were both opened and closed on the day of and after the accident. It also appears that the plaintiff was entirely familiar with the crossing, that for a long period of time he had been in the habit of passing over it. There is no evidence in the case whether he knew or did not know that the gates were out of repair. It may possibly be inferred from his testimony that he placed some reliance upon the fact that the gates were open, because he testifies that in approaching the defendant’s road, when he arrived at the top of the hill, if he saw the gates-were open he drove on, and upon the day in question, when he-was at the top • of the hill, he saw that the gates were open, and he also testifies that in the month of January or February, he is not certain which, upon one occasion he saw the gates closed. Under all -the circumstances, it seems to me, that upon both branches of the case the questions raised are peculiarly ones for a jury -to pass upon.

Upon the evidence presented to them, while not entirely satisfactory, 1 think I would not be warranted in saying that as matter of law the plaintiff did not take all the precautions necessary to free himself from the charge of contributory negligence, or to-say as matter of law upon the evidence that the defendant was free from negligence. The charge, as a whole, presented the case,fairly for the consideration of the jury.

The judgment should be affirmed, with costs. •

Putnam, J.

The case is a doubtful one. It is not clear that the evidence was sufficient to sustain a verdict establishing negligence on the part of defendant or freedom from negligence on the part of plaintiff. It is, however, for the interests of the parties that the questions involved should be authoritatively settled by the court of appeals, and I, therefore, though doubtingly, concur.

Mayham, P. J., concurs in result


author: Gildersleeve, J.

text:
    Andrew J. Nutting, Resp’t, v. Frederick M. Atwood, App’lt.

      (New York Superior Court, General Term,

      Filed June 5, 1893.)

    1. Contract—Action for breach one of law and not in equity..
    The complaint alleged a sale of a business and stock of merchandise to defendant; that, as part consideration, a certain sum was to be paid when the net increase of the business reached a certain amount; that the net profit or increase had reached that amount, but defendant refused to pay-said sum. Held, that the allegations of the complaint set forth a cause of action at law for breach of contract and gave plaintiff no claim for equitable relief, although it stated that plaintiff did not know when the requisite amount of profit had been reached, and that plaintiff had requested- defendant to account in respect thereto.
    2. Same—Pleading.
    Where the complaint, on its face, does not show any facts on which at claim for equitable relief could be based, it is not necessary for defendant to object, by answer, that plaintiff has ail adequate remedy at law.
    3. Same—Payment by note!
    In such a case, it is immaterial that the payment was to have been made in promissory notes; there being a breach, the amount of the notes is the measure of damage.
    4. Appeal—Judgment on pleadings.
    Where the judgment is made upon the pleadings, no findings are necessary and no exceptions can be taken, but an appeal may be taken directly from the judgment
    ■ Appeal from judgment in favor of plaintiff on a trial at the equity terih of this court

      H. M. Whitehead, for resp’t; Shipman,- Larocque & Choate (S. Hanford, of counsel), for app’lt.
   Gildersleeve, J.

The material allegations of the complaint in this action are, in substance, that the plaintiff sold a business- and stock of merchandise pertaining thereto to the defendant, and that a part of the consideration to be paid was dependent on the profit of the business so sold, i. e., the net increase, amounting to $15,000 ; that when the increase should reach that sum, defendant-was to pay plaintiff $5,500. This part of the contract was reduced to writing and signed by the defendant. The complaint further alleges, in substance, that at the time the action was commenced the net profit or increase had reached that sum, but defendant had refused to pay the $5,500 that he had agreed to pay. The allegations, we think, set forth a complete cause of action at law. The allegations in the complaint that plaintiff did not know just when the profit reached $15,000,, and, therefore, just when the $5,500' became due, bore only upon the question of interest, and it was for the plaintiff to fix, by competent evidence, the date when that period was reached in the conduct of the business. It was just as-if the defendant had promised, in writing, to pay the plaintiff a certain sum when the population of the city of Chicago-reached 600,000 souls, and plaintiff in an action had set forth the agreement, and alleged that prior to the commencement of the action the population of Chicago exceeded 600,000, but that-plaintiff was unable to state just when the population had reached that figure If it was necessary for the plaintiff to ascertain these facts from defendant, his books, or from hostile witnesses, in order to prepare for trial, the Code provides a way by examination before trial.

The allegation in the complaint herein that the plaintiff had requested defendant to account, i. e., to give him the information as to when the profit reached $15,000, or that he desired to obtain an account in court, gave no color to the cause of action and is entitled to no weight in determining its nature. It cannot be said that, by reason of these allegations, an equitable cause of action is set forth. Bradford, etc., R. R. Co. v. N. Y., etc., R. R. Co., 123 N. Y., 316; 33 St. Rep., 614.

The action is to recover damages for the breach of an express contract. The facts set forth in the complaint give the plaintiff no claim to equitable relief. They show no trust relation of the parties, no account between them, no joint or partnership interests, and no need of a discovery, except such as the Code provides may be obtained by motion. Donovan v. Finn, 1 Hopkins Ch., 59.

. The proof necessary to establish the plaintiff’s right to recover damages, if the facts were as alleged, was within the power of the plaintiff to secure. The defendant’s testimony and the testimony of those in his employment could be taken by commission; he could be required to produce books and papers, and such facts as were necessary to show the breach of contract could be brought out as fully as upon an accounting in a court of equity. If this were not true, the powers of a court of equity could not be invoked to enable the plaintiff to get the proof necessary to establish his action at law. The amount of the plaintiff’s recovery is not at all dependent on the result of an accounting. He is entitled tp $5,500 or nothing.

The only issues made by the pleadings are whether the profit has reached the sum of $15,000, and if so, when, as bearing on the question of interest. These are ordinary issues in simple actions for breach of contract, and are triable by jury.

Ho exceptions, requests or findings were necessary to enable defendant to appeal to the general term, and obtain a review of the judgment. There was no trial, no evidence was taken. The judgment was made upon the pleadings. In such cases no findings are necessary, and, therefore, no exceptions can be taken. There is nothing to except to. The defendant may appeal directly from the judgment. Wood v. Lary, 124 N. Y., 83 ; 35 St. Rep., 53; Eaton v. Wells, 82 N. Y., 576.

It was not necessary that the objections to the plaintiff’s demand for an accounting should be taken by answer. If the complaint, on its face, had shown any facts on which a claim for equitable relief could be based, it would have been necessary for the defendant to have objected by answer that the plaintiff had an adequate remedy at law. In the case at bar, the complaint, set forth a contract for the payment of a specific sum on the happening of a certain event, and alleged that that event had happened.

It is of no significance that, by the terms of the contract, the $5,500 was to be paid in promissory notes. If there has been a breach by the defendant, the amount of the notes is the mensuré of damage.

The only judgment that could be rendered in favor of the plaintiff, on such a complaint, was a money judgment for $5,500, with interest and costs.

The case should have been stricken from the equity calendar.

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

Sedgwick, Ch. J., and Dugro, J., concur.


author: Barnard, P. J.

text:
    Augustus Blazo, Resp’t, v. William P. Gill, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

      1. Contract—Building—Estimate.
    Plaintiff contracted to supervise, build, furnish and complete a house for defendant and was to contract for the building with the greatest economy at the exact cost, but there was no limitation that the cost should not exceed the estimate made. Attached to the contract was a memorandum containing a list of items with sums set opposite them aggregating the sum defendant claimed the building was to cost. This memorandum purported to be an estimate only, and plaintiff so testified. Meld, that a finding that there was only an estimate and no agreement that the building, should cost no more was supported by the evidence.
    3. Same—Cost of material and labor.
    Proof of the amount of cost in gross and detail, accompanied by vouchers and testimony of the persons supplying materials that their bills were reasonable and just, is sufficient to sustain a finding in favor of plaintiff, in the absence of proof showing that the articles were not delivered.

      Appeal from judgment in favor of plaintiff, entered on report •of a referee.
    Action for a balance alleged to be due on a contract for building a house for defendant

      G. G. & F. Reynolds, for app’lt; J. T. Marean, for resp’t
   Barnard, P. J.

The plaintiff, who is an architect and builder, agreed to “ supervise, build,- furnish and complete ” a house for the defendant for the sum of $1,500. The plaintiff was to contract for the building in all its details with the greatest economy and was to charge everything at the exact cost. The plaintiff •completed the house at a cost for materials and labor of $18,-'224.68. The defendant was paid on account of this $16,234.57. The plaintiff seeks to recover in this action the balance, $1,990.11. The first issue which the defendant makes is that the plaintiff .agreed that the house was to be completed for $16,498, besides the plaintiff’s pay for supervision. There was a memorandum annexed to the contract containing a list of work and materials, and there were sums of money opposite each which footed up at $16,498. The question tried before the referee was whether there was an ■estimate only-and not an agreement by the plaintiff that the building should cost no more. The parties differed in their testimony. The paper purports to be an estimate memorandum only. The plaintiff so testifies. The contract favors this view. It provides that the plaintiff shall have all cost, and there is no limitation that the cost shall not exceed the estimate.

The finding of the referee on this question is supported by the evidence. The defendant makes an issue whether or not the cost was as much as claimed. The plaintiff makes atvery clear case upon this question." He testifies to the sum in gross and to its details. He is supported by vouchers. A large number of the labor and material bills are supported by the parties showing that their bills were reasonable and just, and thus amount to over .$10,000. Vouchers for every bill were given defendant by the plaintiff. The rule would be too strict which should require the plaintiff to personally know that each article and day’s work was •done, or that the material man should himself know the cost of his articles. An order was given. It was apparently filled. The -employes loaded the wagon and the contents were delivered at the house. The plaintiff looked over and specified everything which had been ordered and sent to the building before it was paid for. In the absence of proof showing that the articles were not delivered, the finding is warranted by the evidence.

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

Dykman and Pratt, JJ., concur.


text:
    The People ex rel. Matilda Cecil v. Arington H. Carman et al., Com’rs.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    Highways—Laying out.
    The commissioners appointed by the county court are not bound to follow the route of the petition for the road with precision, and an extension, of one of the corners further than the petition is not erroneous if thereby a better road is obtained.
    Certiorari to review the proceedings of respondents as commissioners appointed by the county court of Suffolk county, in laying out a road in the town of Southampton.

      E. A. Carpenter, for relator; Nathan D. Petty (James H. Tuthill, of counsel), for resp’ts.
   Barnard, P. J.

Quinn and others, inhabitants of Southampton, Suffolk county, liable to be assessed for highway labor, applied to the commissioners of highways of the town to lay out a highway. The commissioners of highways refused, and the same petitioners applied to the county court, under chap: 568, Laws of 1890, §§ 83 and 84, for the appointment of commissioners to lay out the highway and to assess' the damages occasioned thereby. The commissioners laid out the road and certified relator’s damages for the land which was taken therefor from the relator, Mrs. Cecil. Mrs. Cecil obtained a writ of certiorari to reverse the adjudication and she alleges three reversible errors on the part of the commissioners. The application was for a road: Beginning

at a highway through East Quogue at the southwest corner of land of N. S. Jackson and running from thence easterly to the southeast corner of the land of W. B. Benjamin and Mrs. George Cecil, continuing from thence northerly to the bay or creek. The commissioners went beyond the land of Benjamin eight rods in the same direction before running north to the creek. This departure was not only within the power of the commissioners, but was one which should have been made if thereby a better road was obtained. The commissioners are not bound to follow the route of the petition for the road with precision. The proposed road was between two ponds and the road exactly meets the petition. The extension of one of the corners further than the petition was, therefore, not erroneous. People ex rel. Cook v. Hildreth, 24 St Rep., 458.

The relator also avers for error that the road goes through her orchard yard, lawn and flower garden. The proof fails to show the fact alleged. The relator’s house is on an uninclosed field and the road interferes with no part of it used as a lawn, yard or flower garden within the spirit and intent of the statute. Besides this the certificate of the commissioners that the road was laid out through the relator’s orchard yard would be good as a step by way of the county court to obtain the road. The questions raised' upon the merits are not sustained by the evidence. The particular objection made to the road by the owners Benjamin and Cecil to> the road as proposed were that a highway on Benjamin’s land and in front of Mrs. Cecil would be exceedingly objectionable to those owners. . The commissioners carried the road beyond Mrs. Cecil’s house and beyond the Benjamin south line.

The oi’der of the commissioners laying out the road applied for should be affirmed, with costs.

Bykman and Pratt, JJ., concur.


author: Dykman, J. Barnard, P. J.

text:
    George Meurer, Resp’t, v. Marie Von Kramer, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    Evidence—Contract.
    In an action for the purchase price of a furnace the defendant claimed that it was not furnished to her, but to one T., who was erecting a house for her by contract. Plaintiff testified that defendant gave him the order, which she denied, and T. testified that he gave it. The contract with T. was offered in evidence and excluded. Held, no error, as it appeared in the testimony that there was such a contract and its particular terms were immaterial.
    (Barnard, P. J., dissents.)
    Appeal from judgment of the Richmond county court, affirming judgment of justice in favor of plaintiff.

      W. J. Powers, for app’lt; John Widdecombe, for resp’t.
   Dykman, J.

This action was commenced in a court of a justice of the peace and tried there before the justice without a jury, and he rendered a judgment in favor of the plaintiff against the defendant for $129.21 damages and $1.50 costs.

From that judgment the defendant appealed to the county -court of Richmond county, but in her notice of appeal she did not demand a new trial in the county court.

The appeal, therefore, raised only questions of law, and the case was argued before the county court, and the judgment was there affirmed.

From that judgment of affirmance the defendant has appealed to this court

The action was for the recovery of the value of a furnace -and fixtures appurtenant thereto which the plaintiff placed in the •dwelling house of the defendant.

There is no denial that the plaintiff put the furnace in the house, and the price is undisputed, but the defense set up was this.

In the month of September, 1890, the defendant made a contract in writing with one Charles Triebe for the erection of the house in which this heater was placed, and she claimed that the plaintiff furnished the heater for Triebe and not for her.

Upon the trial before the justice the defendant offered the written contract between her and Triebe in evidence, and it was rejected, to the rejection of the contract the defendant took an exception, and that presents the only question of law raised by the appeal

Upon the trial before the justice of the peace the plaintiff testified that the defendant gave him the order for the furnace, and the defendant testified that she did not. Triebe, who was a witness for the defendant, testified that he ordered the furnace of the plaintiff.

The justice gave credit to the testimony of the plaintiff and disbelieved the testimony of Triebe and the defendant.

We cannot say that was erroneous. He saw the witnesses and probably knew them personally, and we cannot reverse upon the facts under such circumstances.

We are also inclined to hold that the exclusion of the written, contract between the defendant and Triebe was not erroneous.

It had already appeared in the testimony that there was such a contract, and its particular terms were immaterial.

The judgment should be affirmed, with costs.

Pratt, J., concurs.

Barnard, P. J.

(dissenting). The plaintiff sought to recover for the value of a heater put in the defendant’s house by the plaintiff. The defendant denied that the heater was put in at her request. The plaintiff testified to ati actual request by the defendant to put in the heater in question, and the defendant positively denied the same. It appeared on the trial that one Triebe had the contract for building the defendant’s house, and Triebe testified that he ordered the heater. The defendant offered the contract in evidence and it was rejected. This was erroneous. The sole question was one of fact, and it was important in determining the credibility of the conflicting evidence that it should be known whether Triebe was bound by his contract to furnish the heater himself, as part of his contract with the defendant. Judgment reversed, with costs.

Judgment affirmed, with costs.


author: Barnard, P, J.—The

text:
    Adelaide L. Painter, Adm’rx, Resp’t, v. Robert J. Power, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    Bills and notes—Payment.
    In an action on a note held by plaintiff’s intestate, it appeared that after its date deceased received from defendant certain sums of money aggre-
    ' gating more than its face. It appeared, however, that when the last payment was made, the deceased credited only a part of such payment on the note and gave a receipt which so stated, and there was evidence of previous transactions on which the payments could be applied. Held, that the referee was justified in finding that the note was unpaid except to the extent of such credit.
    Appeal from judgment in favor of plaintiff for $985.34, entered on the report of a referee.

      E. A. Carpenter, for app’lt; Thomas F. Bisgood, for resp’t.
   Barnard, P, J.—The

plaintiff, as administratrix of her bus-. band, seeks to recover the amount of a note dated May 24, 1889, for $700. Fifty dollars was admitted to have been paid. The' defendant set up a counterclaim for $1,132.45, for moneys had and received by the plaintiff’s deceased husband in his lifetime. The trial before the referee was wholly taken up by proof for and against this counterclaim. The referee found against the same, and the appeal is from his finding on that question. The evidence is quite unsatisfactory as to the real truth of the indebtedness to the deceased. One party is dead, and the other cannot testify. The books of deceased do not show the real balance. 'The account as proven includes large amounts satisfactorily proven to have been paid in the lifetime of the deceased. The question is narrowed by the proof to a credit of three items on the books of deceased. As has been stated, the note was dated and given on May 24, 1889. On August 4, 1889, the deceased received from the defendant $527 ; On the 30th August, 1889, $100, and on 14 September, 1889, $110. If these moneys were paid on the note and not credited, the note is extinguished by the moneys received. The proof is decisive against this application. On the 14 September, 1889, the date of the last payment of $110, the deceased applied on the note in amount $50, and gave a receipt to defendant acknowledging the receipt of $50, and stating that he had indorsed that amount on the note. If the previous payments were made in extinguishment of the note, the receipt should have stated it, and not have left the note outstanding except this one reduction. The general rule must be applied to-the case that checks will be deemed to rest upon a debt when there is no explanation. In this case the proof shows that after all the payments were made the parties recognized the note as unpaid, and applied on it a portion of a sum then received. There is also proof that there were considerable previous transactions between them upon which the sum paid could be applied. The referee, therefore, is supported by the evidence in finding that the note is unpaid, deducting the $50 payment on it, and that there is no counterclaim proven.

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

Dykman and Pratt, JJ., concur.


author: Dykman, J.

text:
    Daniel Smith, Resp’t, v. John Flannery, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    Assault—Damages .
    In an action for assault plaintiff’s evidence tended to show- that defendant put him out of his hotel, and that he was assaulted by the barkeeper when outside; that defendant told the barkeeper to “ go out and do that man up.” This was denied by defendant, and other witnesses said that they did not hear it. The most serious injuries were received outside the house. Held, that a verdict for $570 would not be disturbed.
    Appeal from judgment in favor of plaintiff entered upon a verdict for $570.
    Action for assault. The plaintiff’s evidence tended to show that he was in defendant’s hotel drinking with a friend; that defendant put' him out, and that afterward the barkeeper came out and struck him twice and knocked him down. His friend testified that he heard the defendant tell the barkeeper to “ go out and do that man up.”

      Wood & Morschauser, for app’lt; Hackett & Williams ( William R. Wood, of counsel), for resp’t.
   Dykman, J.

This is an action, for assault and battery, and upon the the plaintiff introduced proof two assaults and injuries, one committed by the defendant himself, and one committed by Glynn, by direction of the defendant. There was much contradiction in the testimony. One witness, however, who was with the plaintiff, testified positively that he heard the defendant say, after the plaintiff was outside of the defendant’s house, “ Glynn, go out and do that man up.” That was denied by the defendant, and other witnesses who were present said they did not hear it said.

That was a very material question upon the trial, because the serious injuries of the plaintiff were received outside of the house.

Upon that sharp conflict of testimony the case went to the jury and the verdict was found for the plaintiff for $570.

The injuries of the plaintiff were very severe, and the verdict indicates the belief of the jury of the testimony introduced in his behalf. That being so, the evidence established an aggravated ■case, and this court cannot interfere.

The judgment should be affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.


author: Pratt, J.—There Dykman, J.

text:
    Charles A. Silliman, Resp’t, v. The Albany & Troy Steamboat Co., Limited, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    1. Brokers—Employment—Sale of vessel.
    Plaintiff, who was engaged in brokerage of vessels, had conversations with defendant’s president, who said they would sell a steamboat if they could get enough for tier, and afterwards brought to him an agent of another line, to which the vessel was sold. At the first interview plaintiff said he wanted a commission if a sale was made. Held, that there was sufficient proof of an employment.
    3. Same.
    The year previous defendant had offered the vessel to said company for $30,000, but the offer was refused. The sale in question was foils?,000. Held, that this showed that a new negotiation was undertaken, and that the sale was not the outcome of the former negotiation.
    Principal and agent—Presumption of repobt by agent.
    The law presumes without proof that an agent reports to his employer.
    Appeal from judgment in favor of plaintiff, entered upon a verdict for $6G0.
    Action to recover commissions on the sale of a steamboat.
    Plaintiff testified that he had u several off-hand conversations ” with Mr. George Mark, the president of-the defendant company, relative to the sale of the steamboat F. P. James, asking whether it was for sale, and that Mark replied, “ Why certainly we will sell her if we can get money enough for her, of coursethat thereafter he had communication with Dodd, who was in some way connected with the College Point Ferry Company, and that he took him to see Mr. Mark in regard to a sale of the boat; he says that this conversation with Mark and Dodd was at the office of James- M. Matthews, No. lljL Broadway, New York; he says that he introduced Dodd to Mark as the agent of the College Point Ferry Company, stating that Dodd had authority to make the purchase, and he said to Mr. Mark that if the sale was effected he wanted a commission, to which Mark said “ Hoo, hoo, hoo !’’
    The witness further stated that he had not seen Mr. Dodd about the matter until just before he took him to the office of Mr. Mark.
    Dodd testified that he was employed as agent of the Ferry Company and ordered to go to work and buy or charter a boat, and that after that he met the plaintiff and went with him to see Mr. Mark.

      W. W. Goodrich, for app’lt; Edwin G. Davis, for resp’t.
   Pratt, J.—There

was enough evidence of employment to take the case to the jury.

There is no substantial contradiction that at the first interview between Dodd and Mark the plaintiff stated that he was acting as broker, and should claim a commission if a sale was made. Nor does it appear that any denial was then made of defendants’ obligation to pay commission in that event. The president of defendant says he answered: “ No, sir, I have nothing to do with the handling of the steamboat; ” but he also testifies that the negotiation was at once engaged in between one of defendants’ officers and the agent of the purchaser.

The fact that defendants paid a commission of $1,000 on the sale to one of their agents who came into the discussion at this stage cannot affect the plaintiff’s right.

It is urged that the final sale was the outcome of a negotiation begun the year previous.

At that time defendants offered the vessel for $30,000, and the offer was refused.

It is plain defendants considered that negotiation abandoned, for they chartered the vessel to another corporation for the season. So the fact that the sale was for $7,000 more indicates that a new negotiation was undertaken.

A vendor whose offer is refused as too high does not ordinarily as a part of the same negotiation raise his price.

It is said the proof does not show that Dodd reported his action to the purchaser.

The law presumes without proof that an agent reports to his employer. Story Agency, §§ 160, 208. So strong is that presumption that knowledge of the agent is notice to the principal.

Judgment affirmed, with costs.

Barnard, P. J., concurs.

Dykman, J.

This is an action for the recovery of commissions for the sale of the steam ferry boat “ F. P. James.’’

The claim was contested upon two grounds: First,- that the plaintiff was not employed to make the sale; and, second, that the sale was not made by him.

There was no direct proof of employment; but there was testimony and there were circumstances from which an employment might fairly be inferred.

There was much conflict in the testimony; but the case was ■one peculiarly for the jury, and it was submitted in a plain and correct charge by the trial judge, and both questions were found in favor of the plaintiff.

The counsel for the respondent took the position that there was no certificate that the case contained all the evidence; but the point was waived on the argument, and we have examined the case as though it contained all the testimony.

There being testimony sufficient to sustain the verdict, we cannot interfere with the verdict.

The judgment and order denying the motion for a new trial upon the minutes of the court should be affirmed, with costs.


text:
    Franklin D. Newton, App’lt, v. Gertrude E. Lee et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    Set-off—Rights of subeties against assignee of claim.
    In an action by an assignee of a claim for goods sold and delivered, the answer denied the sale and set up that the defendants were only sureties for the payment of the account of a company to whom said goods were sold under a contract; that there had been a breach of the contract, and asked to set-off the damages thereby occasioned. Held, on demurrer, that such defense was a good one; that plaintiff took the claim subject to all defenses for breach of the contract out of which it arose; and the defense is good so far as the entire extinguishment of the entire assigned claim, if the proof of damages is sufficient.
    Appeal from interlocutory judgment overruling demurrer to a portion of the answer.

      Nelson S. Spencer, for app’lt; James W. Perry, for resp’ts.
   Barnard, P. J.

The complaint states that certain articles of personal property were sold and delivered by the Naugatuck Malleable Iron Company to the defendants; that the bill for the value of the same is unpaid, and that the company has assigned the claim to the plaintiff. The defendants deny the sale, the value claimed and the assignment to the plaintiff. The answer then proceeds to make a distinct and separate defense to the effect and purport that the sale was made to the American Bit Brace Company, and not with the defendants. That this Bit Brace Company made a contract with the Naugatuck Malleable Iron Company to furnish castings from patterns furnished by the American Bit Brace Company. That the Naugatuck Company, on the 13th of July, 1892, made an order for castings, and thereby caused great loss to the American Bit Brace Company; and the defendants ask to recoupe, set-off and counterclaim this damage against the plaintiff’s claim. The distinct and separate defense further states that the defendants were only sureties for the payment of the account of the American Bit Brace Company to the Naugatuck Company. The separate answer states a clear case where the counterclaim, existing against the Naugatuck Company at the time of the assignment, should be available to destroy tine claim assigned to the plaintiff, as far as it was to go, or, as stated in the demand for judgment, as far “as shall be necessary to extinguish the plaintiff’s demand.” The demurrer was properly overruled. Code, § 502, sub. 1; Baker v. Hotchkiss, 97 N. Y., 395.

The plaintiff took the contract with all defenses against the assignor for the breach of the contract out of which the claim arose, and the defense is good so far as the entire extinguishment of the assigned claim if the proof of damages is sufficient. No personal claim is made against the plaintiff. Bates v. Rosekrans, 37 N. Y., 409.

Judgment affirmed, with costs.

Dyioian and Pratt, JJ., concur.


author: Barnard, P. J. Dyioian, J.,

text:
    Henry D. Leslie, Rec’r, Pl’ff, v. Henry M. Goodhue, Def’t.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    Contract—Failure to complete—Sale at auction—Liability for deficiency.
    Plaintiff is a receiver appointed by the court of chancery of New Jersey, and also appointed ancillary receiver by the supreme court of this state, and as such sold certain property at public sale. By the terms of sale a certain sum was to be paid down, and the sale was not to be binding until the New Jersey court confirmed it. Defendant bid in the property but failed to make the payment, whereupon plaintiff immediately put it up again and sold it to another, and the latter sale was confirmed by said court. Held, that there was-no contract between plaintiff and defendant, and that an action to recover the deficiency on the resale could not be maintained.
    (Dykman, J., dissents.)
    Motion for a new trial on exceptions ordered to be first heard at general term, after a nonsuit
    Action to recover for breach of contract by defendant in failing to complete his purchase at an auction sale of goods of a corporation of which plaintiff was receiver.

      Alfred A. Gardner, for pl'ff; J. & Q. Van Voorhis (Eugene Van Voorhis, of counsel), for deft.
   Barnard, P. J.

The plaintiff is a receiver appointed by the court of chancery of the state of New Jersey of the Casey Machine & Supply Company, a corporation of that state. He is also an ancillary receiver by order of this court. By an order of the court of chancery he put up certain corporate property in this state and the defendant bid upon it and failed to complete his bid. The property was put up again and brought less than the defendant’s bid, and this action is brought to recover the difference between the two bids. The sale was not to be binding until confirmed by the chancellor, and ten per cent cash was required by the conditions of sale. The defendant did not pay the ten per cent, and no application was ever made to the chancellor either to compel the defendant to complete or to confirm the, sale; but the receiver at once, upon his default to pay the ten per cent, put up the property and sold it, and the sale was confirmed by the chancellor and was completed. The plaintiff has no cause of action. There was no contract between him and the bidder. Miller v. Collyer, 36 Barb., 250.

He was the executive agent of a court of chancery which did not empower him to make it a condition that the defendant should answer for the difference between his bid, not carried out, and a lesser bid which was. The court of chancery approved the sale at the less sum, and no opportunity was given to the defendant to be heard in the court of chancery as to his excuse for not carrying out his bid.

The judgment should be affirmed, with costs.

Pratt, J., concurs.

Dyioian, J.,

This is an for a new-trial upon the exceptions directed to be heard in the first instance at the general term.

The action was brought by the plaintiff as receiver to recover from the defendant damages for a breach of a contract of sale in failing to complete a purchase of certain personal prop- . erty.

The plaintiff was appointed receiver of the Casey Machine & Supply Company by the court of chancery of New Jersey in December, 1890. That company was a New Jersey corporation, but as its property was partly in the state of New York, the plaintiff was appointed receiver in this state of the same company in January, 1891.

The property in New York was sold twice at public auction previous to the sale to the defendant, and both purchasers failed to consummate the sale.

At the third sale the property was struck down to the defendant upon his bid of $20,000, but he was not prepared to pay the ten per cent, according to the terms of sale, and the property was thereupon set up and sold again for $11,700. This action is for the recovery of the difference between the two bids.

The complaint was discussed at the circuit, and the exception of the plaintiff thereto was directed to be heard at the general term in the first instance.

Whether the sale is to be considered a judicial sale or not, it was made upon certain written conditions, under which the defendant made his bid, and to which he thereby gave his assent.

Among other conditions were these: “ The terms of sale will

be ten per cent, cash on the day of sale, and the balance in twenty days thereafter, provided the sale shall have been then confirmed by the chancellor, and if not, then when so confirmed by him.

“ In case of the confirmation of the sale by the chancellor, if the purchaser or purchasers shall not attend to complete their purchase by the payment of the money, the bid and the amount paid thereon will be forfeited to the receiver and the receiver will, at his option, hold the purchaser for the amount of his bid or resell the property, hólding the purchaser for the expense of the resale, and any loss which may occur by reason of the property or any part thereof bringing a smaller price or smaller prices than the bid of the purchaser so in default.”

When the property was struck down to the defendant he became the purchaser thereof under the terms of sale, and such terms became a contract between him and the plaintiff, and he was under legal obligation to perform the same.

If he had complied with the terms of sale and paid ten per cent, of his bid then the sale would have been complete, and the title to the property would have passed to him, subject only to the contingency of the confirmation of the sale by the court. In that respect the defendant submitted himself to the jurisdiction of the court when he became the purchaser at the sale.

In this view the statute of frauds is not an important factor in the case, for if the defendant had paid the ten per cent, as he undertook to do that would have rescued the case from the statute, and no writing would have been essential.

It must be borne in mind that this action is not for the enforcement of the contract to purchase, but for damages for a breach of the contract.

The breach was complete and the liability of the defendant was incurred when he failed to pay the ten per cent., and that was payable at the time of the sale.

So far we have been considering the liability of the defendant under the terms of sale alone, but we think the sale made by the plaintiff was a judicial sale.

It was made by an officer of the court, under specific directions, and was subject to the approval of the court The whole proceeding, from commencement to end, was under the direction of the court, and was judicial in its character throughout.

Such sales are not within the mischief contemplated by the statute of frauds, and do not fall within its provisions.

In any view, therefore, we think the sale to the defendant was valid, and imposed upon him the obligation to complete the same, and as he failed so to do he became liable for the damages resulting from his failure so to do.

The exception should, therefore, prevail, and a new trial should be granted, with costs to abide the event.

Exceptions overruled and judgment affirmed, with costs.