text:
    Erastus Crawford, Resp’t, v. Thomas M. Tyng, App’lt.

      (New York City Court, General Term,

      Filed February 8, 1894.)

    Evidence.—Admission
    A paper, shown to have been handed to a witness by defendant and claimed by the latter to fix his claim and compensation, is admissible.
    Appeal from a judgment in favor of plaintiff,

      T. M. Tyng, app’lt in person, Jacob Fromme, for resp’t.
   Fitzsimons, J.

The plaintiff had the affirmative as the record a to open case. did not claim the affirmative and the record does not show that it was denied him, therefore it was proper for the trial justice to deny his application for the affirmative in summing up. The paper marked Plaintiff’s Exhibit Nunber 3 and set out on page 82 of the printed case was certainly properly admitted in evidence because the witness Scott testified that it was a copy of a paper given him (Scott) by the defendant Tyng personally, which paper the witness said Tyng claimed fixed his compensation and claim to the fund in the “ Scbreyer matter.” The testimony submitted fully justifies the verdict rendered, and we find no error in the charge of the trial justice. The verdict is therefore affirmed with costs.

All concur.


source: Caselaw Access Project

author: Adams, J.

license: Public Domain

text:
    The Market and Fulton National Bank of New York et al., Pl'ffs, v. Thomas Jones et al., Def’ts.

      (Supreme Court, Cayuga Equity Term,

      Filed January 30, 1894.)

    1. Pleadings—Demurrer.,,
    Demurrer will lie to each of two causes of action, if, upon either of them plaintiff may recover against some of the defendants, though they are both stated in one count.

      2. Corporations—Mortgages.
    Judgment creditors cannot take advantage of the omission of the written assent of the requisite number of stockholders to the execution of a corporate mortgage.
    Demurrer by defendant Jones, to a certain portion of the amended complaint of the plaintiffs.

      W. E. & F. E. Hughití, for pl’ffs; E. 0. Aiken, for deft Jones.
   Adams, J.

The plaintiffs as judgment creditors of the Rheubottom and Teall Manufacturing Company, bring this action for the purpose of having declared fraudulent and void, as against their judgments, certain real estate and chattel mortgages executed by the above named judgment debtor to the defendant Jones, and also a certain judgment obtained by the defendants Rheubottom and Wright, and by them assigned to the defendants the National Bank of Auburn and the State Bank of Syracuse. The complaint in setting forth the facts upon which the plaintiffs rely to obtain the relief sought, does not attempt to number and state separate causes of action, but it nevertheless proceeds upon the theory that the Jones mortgages are void, for the reason that they wrere given in contemplation of insolvency when the mortgagor was actually insolvent and without the written assent of a majority of the stockholders of the mortgagor, nor of the stockholders owming two-thirds of the capital stock of said mortgagor, corporation having been first obtained; and that the Rheubottom and Wright judgments were suffered and procured by fraud and collusion, to which latter transaction it is not pretended that the defendant Jones was in any sense a party. It would seem therefore that the complaint does contain separate and distinct causes of action, upon either one of which plaintiff might recover as against some of the defendants, and it follows that a demurrer may be interposed to each of these causes of action, although they are both stated in one count. Wiles et al. v. Suydam, 64 N. Y. 173 ; Goldberg v. Utley, 60 N. Y. 427.

The portion of the complaint demurred to is that which alleges that the Jones mortgages were obtained without procuring the written assent, of the requisite number of stockholders, and seeks by reason thereof, to have the same declared void as against the plaintiff’s judgments, the defendant insisting that this statutory pre-requisite is one which concerns the stockholders only, and that the plaintiffs as judgment creditors, can take no advantage of its omission.

The question which is thus presented is one which has been several times incidentally considered by the courts of this state, but no adjudication has been cited, and I am unable to find one in which it has been actually and definitely determined. It may be profitable therefore to briefly consider the several statutory provisions which are designed to restrain and regulate the mortgaging of the real and personal property of corporations, and then to give proper construction to the same with the aid of such interpretations as the courts have intimated ought to be applied.

At common law, any corporation, unless restrained by some provision of its charter, was permitted to mortgage property payment of its debts or to secure money borrowed for business purposes, De Ruyter v. St. Peter's Ch., 3 N. Y., 238 ; Curtis v. Leavitt, 15 N. Y., 9, but this right was curtailed by the general act to authorize the formation of corporations for manufacturing, mining, mechanical or chemical purposes,” which provides that any corporation formed under that act shall be capable in law of holding and conveying any real or personal estate, which may be necessary to enable it to carry on its business, “ but shall not mortgage the same nor give a lien thereon." Laws 1848, chap. 40 § 2.

This prohibition was modified, however, in 1864 by permitting a corporation to mortgage any or all of its real estate to secure the payment of any debt contracted by it. Laws 1864, chap. 517, § 2. In 1871, it was still further relaxed by extending the privilege so as to include personal property, Laws 1871, chap. 481, and again in 1878, so as to embrace its “ franchises, rights and liberties.” Laws 1878, chap. 163. But to each of these enabling acts is attached the proviso that the written assent of the stockholders owning at least two-thirds of the capital stock of such corporation shall be first filed in the office of the clerk of the county where the mortgaged property is situated, although this condition was so far modified in 1875, as to permit the certificate of assent to be filed nunc pro tunc in any case where, by accident, or mistake, it has been omitted. Laws of 1875, chap. 88. It appears, therefore, that while the tendency of legislation upon this subject has been constantly in the direction of affording greater liberty and better opportunities to corporations in the conduct of their business and in the management of their affairs, the legislature has in all of these changes and modifications attempted to guard and protect such persons as may be affected thereby, and the question now presents itself, who are the persons for whose interests so much consideration has been shown, are they the corporators or the creditors? It will not be claimed, I assume, that the inhibitory feature which was embraced in the original act was designed to benefit any one but the members of the corporation themselves, and it appears equally certain that its modification was due to the requirements of business which demanded that artificial persons should to a certain extent, be placed upon the same plane as natural ones, and to that end, that they should be permitted to secure their debts and even to borrow money, in like manner as individuals. But yet some restriction was necessary. A corporation organized under this act was a creature of the state, and therefore the state owed to the individual stockholders the duty of affording them adequate protection, consequently it enlarged the powers of the aggregation, but upon condition only that the majority of those interested in availing themselves of the privilege thus offered, should assent in writing thereto; or in other words, it inhibited any officer or officers of the corporation from incumbering its property, until a certain proportion of the members thereof had formally certified that such a course was satisfactory. This, then, is clearly a provision designated for the protection oí the stockholders, instead of the creditors of a corporation, and if so, then it is difficult to see what interest the latter have in insisting upon its observance. It is undoubtedly true that a mortgage of the real or personal property of a corporation, executed by its officers, without first obtaining and filing the statutory consent of the requisite number of stockholders, is, in a certain sense void, because it fails to comply with the requirements of the statute, but it has been held, and it seems to me very properly, that where it is the manifest intention of the legislature to give protection to determinate individuals, the purpose is sufficiently accomplished, if those individuals are afforded the liberty of avoiding the inhibited act. Rex v. Hipswell, 8 B. & C., 466 ; Terrell v. Anchener, 14 Ohio (N. S.), 80 ; Beecher v M. & P. R. M. Co., 23 Alb. Law Journal, 316. Applying the rule thus stated to this case, it follows that if a corporation mortgrge its property in contravention of the provisions of the statute, the individual for whose protection those provisions were enacted may avoid the mortgage, but they may also treat it as a valid security, and if they elect to pursue the latter course, what right has a creditor to complain ? This view of the matter is not without-considerable authority in the way of dicta although as before stated, it has not as yet been formulated into an express adjudication. In the case of Greenpoint Sugar Co. v. Whitin, 69 N. Y., 328, 333, Church C. J., says, “It is quite manifest that the prohibition of the act of 1848 against mortgaging corporate property and the qualifications in the act of 1864 to the right of mortgaging were enacted for the benefit and protection of the stockholders.” This case has been repeatedly cited with approval of the expression quoted and in Paulding v. The Chrome Steel Co., 94 N. Y., 334-341, Danforth J. says, that the statutory assent “ has been considered by us as enacted for the benefit and protection of stockholders against improvident or corrupt acts of the officers of the corporation and not because the legislature regarded the mortgaging of corporate property as improper per se and it is at least doubtful whether any but stockholders can complain that the condition was not complied with.”

Again Judge Andrews in the the case of Rochester Savings Bank v. Averell et al., 96 N. Y., 467, while stating that the assent of stockholders “is an indispensable condition to the creation of a valid mortgage under the act of 1864, takes occasion to add that “ the object of the legislature in requiring such assent, was the protection of stockholders against improvident collusive acts of the trustees, the governing body of the corporation, in incumbering the corporate property.” This case is cited by the learned counsel for the plaintiff as an authority against the contention that none but stockholders can avail themselves of this privilege, inasmuch as the question was there raised by subsequent lienors for the purpose of defeating the plaintiff’s mortage. It is true that the defendants were purchasers under a second morgtage foreclosure, but it appears that they were also stockholders in the corporation which executed the mortgage and were therefore in a position to raise the question. Still more recently the dictum of Judge Church in the Whitin case, has been referred to with apparent approval of the principle therein contained, as for instance he is quoted by Batallo J. with the supplementary suggestion that the legislative enactments plainly evince that their purpose and intent were to “ protect the stockholders from improvident or corrupt acts by the officers of the company ’’ and that the policy adopted indicates a fear of its improper exercise (i„ e. the mortgaging of corporate property) and an intention to guard against it.” Lord v. Yonkers Fuel Gas Co. et al., 99 N. Y., 547, 555, and in the case of Welch v. Importer & Traders Nat. Bank et al., 122 N. Y. 177, 187 ; 33 St. Rep. 452, Follett C. J. in giving construction to the act of 1864, and its amendments says, ” the enabling part of this section was enacted to relieve corporations from the prohibition against mortgaging their property, contained in the second section of chapter 40 of the laws 1848, and the proviso in respect to the assent of shareholders is for their protection.” It is impossible to read what has thus been quoted from cases decided by the court of appeals without receiving the impression that the view urged by counsel for defendant Jones upon the argument of this demurrer, is the one which must receive authoritative sanction from that tribunal whenever it shall be called upon to meet the question here presented, and so strong is that impression that I should be compelled to adopt that view even if it were not in consonance with my own judgment which, it is proper to add, is not the case. The single instance in which a different view appears to obtain is in the decision of Rochester Savings Bank v. Averill, at the general term, 26 Hun, 646, where Hardin J. says, “The purpose of the statute was to protect stockholders of the company and Iona fide creditors,” and in support of this expression of opinion the learned justice cites the case of Beecher v. M. & P. R. M. Co., supra, and Post v. Dart, 8 Paige 639. It has already been shown and a careful reading of Judge Cooly’s opinion in the former case, will make it very clear, that so far from that being an authority for the proposition that protection to creditors was within the contemplation of the legislature when the statutes in question were enacted, it holds in so many words, that a statute somewhat similar in its provisions, was designed for the protection of stockholders only; while the case Post v. Dart, simply decides that a stranger can not insist upon the invalidity of a usurious mortgage in respect of which he is neither a party or a privy, which is a principle quite in harmony with the defendant’s contention in this case.

But, it is argued, the amendments to the act of 1848, merely permit the giving of a mortgage on corporate property, provided certain things be done and that if they are not done the original act applies with its prohibition. This however, is not my understanding of the intention of the legislature as expressed by the various amendments to which reference has been made and as the same has been construed by the courts. On the contrary its policy seems to be to recede from the inhibitory feature of the original act and to declare that the mortgaging of corporate property is not improper per se so long as the individual members of the body are protected from any improvidence or corruption on the part of their officers.

The views which I entertain and which are here expressed, lead to a conclusion which sustains the demurrer and make the consideration of the other questions discussed, unnecessary.

The demurrer is therefore sustained with costs to the defendant Jones to abide the result of the trial of the issues of fact raised by the answer to the original complaint.


author: Gtegerich, J.

text:
    Margaret Burckle, App’lt, v. David Shannon, Resp’t.

      (New York Common Pleas, General Term,

      Filed February 28, 1894.)

    1. Fobmeb adjudication—Bab.
    A judgment, which, determined the issue of eviction adversely to the tenant, is no bar to an action for subsequent rent.
    2. Same—Removal pbom pbbmises.
    The fact that the tenant removed from the premises subsequent to the date of such alleged eviction, does not, of its own force, effect a suspension of the rent.
    Appeal by the plaintiff from so much of the judgment of the district court in the city of New York for the eleventh judicial district as fails to adjudge that such plaintiff is entitled to recover the sum of $150.
    Action for rent. The opinion states the material facts.

      Arnoux, Bitch S Woodford, for app’lt; Hirsh & Basquin, for resp’t.
   Gtegerich, J.

To an action for rent the defendant pleaded evection and a former adjudication. None but record evidence was submitted by the parlies, the plaintiff’s case resting upon the pleadings and the defendant’s upon a record of a former action between the parties, in the city court of Brooklyn, and a stipulation as to the facts entered into by the parties to obviate the production of witnesses. The lease under which the relation of the parties subsisted, provided for rent at the rate of $50. per month and this action was brought for the rent due for the months of December, 1891, and January and February, 1892. That such rent was unpaid was admitted by the stipulation, and the allegations of the complaint generally were admitted, the defense being confession and avoidance. The former adjudication upon which the defendant relied was in an action of the nature following: This defendant there brought suit against his landlord, the plaintiff herein, for damages sustained by reason of the imperfect construction of an ice house upon the premises demised by the lease now in question. To that action was counterclaimed the rent for the months of September, October and November, 1891, and to the counterclaim eviction was set up by the reply. The trial resulted in a verdict for this defendant for $41, over and above the amount claimed for the rent, the jury being instructed to find for the defendant, this plaintiff, upon that issue. The ground of this instruction was that the plaintiff in that action had retained possession of the premises by leaving his goods thereupon. Neither party appealed from the judgment and this ruling stands as the accepted law of the case. According to the stipulation in this action the defendant removed his goods on December 19th,' 1891, and the justice following the ruling above noted, rendered judgment for the .plaintiff for $50. the amount of rent for the month of December. In that the judgment was not rendered for the full three month’s rent, lies the appellant’s grievance.

The result of the former action was that this defendant had suffered damage, for which he was thereby compensated; that there had been no eviction at that time which could be available as a defense to the rent, and that this plaintiff was entitled to the rent there claimed.

The former adjudication as to this cause of action, viz.: the rent, even if it might be considered as bearing upon the rent subsequently accruing, is an adjudication adverse to the defendant; as an adjudication of eviction it manifestly fails. It is conceded that upon the 1st of December, the position of the defendant was the same as during the period embraced within the determination of this prior judgment. Thus the record in evidence in no proof of an eviction occurring before the period for which the rent in this action is demanded; it is indeed squarely to the contrary. How then can the fact, as conceded, that the defendant removed from the premises subsequent to this above mentioned date, of its own force effect a suspension of the rent ? In the absence of any evidence that the premises were wholly or partially untenantable at the time when the rent, for which this action is brought, accrued, the defendant’s case is obviously insufficient and there is unquestionable merit in the appeal.

The judgment as appealed from should be reversed and a new trial ordered with costs to the party there prevailing.


author: The Court.

text:
    John Lees, Resp’t, v. James W. Pitney, App’lt.

      (New York Common Pleas, General Term,,

      Filed March 6, 1894.)

    Appeal—Reversal.
    Where the return shows, first, a judgment in favor of defendant and ultimately one in favor of plaintiff, the judgment will he reversed.
   The Court.

This is an appeal by defendant from a judgment court an of replevin to recover a horse and cart which was held by the defendant, a stable keeper, under a claim of lien. The question litigated upon the trial was whether defendant-had a lien. The justice found that he had to the amount of $25 after setting off against his charges various charges for cigars he had bought; and on January 19, 1893, signed and filed a “ memorandum ” as follows:

‘‘The cigars of August 4th allowed at $70, and thesixhundred cigars admitted at $30 dollars, making $100. The keep of the horse from August 1st to December 31st, at $25 dollars a month, $125 ; therefore, judgment for defendant that he retain possession of one roan horse to satisfy a lien of $25. Dated N. Y„ Jan. 19, 1893.”

But the return upon appeal certifies that on the 19th day of January, 1898, he rendered a judgment “in favor of the plaintiff • against the defendant as set forth in the judgment annexed to it.” No judgment is annexed except the memorandum above referred to. The return therefore shows first, a judgment in favor of defendant and ultimately one in favor of plaintiff, and will have to be reversed. There being a finding of a lien in favor of defendant he should have had judgment.

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


text:
    David H. Carroll, Resp’t, v. Arthur Tucker et al., App’lts.

      (New York Common Pleas, General Term,

      Filed March 6, 1894.)

    Appeal—Charge—Request.
    A refusal to charge a request, which leaves to the jury the case upon the facts without an instruction as to the only point, up on which the requesting party relies, is prejudicial to him.

      John Broohs Leavitt, for app’lts; L. L. Settel {John F. McIntyre of counsel), for resp’t.
   The Court.

Y7e are of the opinion that the exception to the request was well taken. Upon the second trial of the case evidence was given of admissions by the defendant, Clarence Tucker: and that was the only substantial difference in the evidence on the two trials.

This court has held and it is the law of the case, that the évidence as it stood on the first trial was insufficient to establish the agency of Thomson in the employment of Carroll. Upon the second trial evidence was given of an admission of the defendant, Clarence Tucker, that Thompson had authority to employ another broker, and upon that and that alone, the plaintiff was entitled to go to the jury. If such evidence had not been given it would have been the duty of the trial court to dismiss the complaint. It was therefore, of the utmost value to the defendant to have the jury clearly instructed that upon that evidence alone de- . pended the right of the plaintiff to recover. In the course of a trial involving many questions of fact and a great deal of evidence it is impossible for the trial judge to recall at the request of counsel that certain evidence was or was not given, or was all the evidence in the case. But upon a second trial, where the right to recover depends upon certain new testimony and that- alone, counsel is entitled to an instruction accordingly. When the coui’t was requested by defendant to charge the juiy “that the only evidence in this case upon which they can find a verdict against the defendants is the alleged admission by Clarence C. Tucker to Mr. Settel that Thompson had authority to employ another broker, the court said : “ I do charge the jury that, if that is all the evidence, the jury cannot infer any' other.” Now, that left it to the jury to a certain extent to infer that there was other evidence of authority in this case, whereas there was not. And when the request was repeated—r

Mr. Settel : Mr. Holbridge had testified that Mr. Clarence Tucker said that Mr. Thompson had full authority to employ a broker, and that evidence was before the jury.

The Court: That is the same admission. The defendants did not ask the court to charge the jury “ unless they believed the evidence of the plaintiffs attorney they could not find,” but “ unless they believed the admission was made.” Two witnesses testified to it, but it was the same admission. ' Then the defendant’s counsel, not being satisfied asked that the jury be charged “ that if Clarence Tucker did not say to Mr. Settel that Thompson had authority to employ another broker, then their verdict must be for defendants.” The court said: “If there is no other evidence in the case except that; ” thus leaving it to the jury to decide whether there was evidence or not. And w^ien the request was repeated it was refused. That refusal was excepted to. It certainly injured the defendants, for it left to the jury the case upon the facts without an instruction as to the only point upon which defendants relied ; and that was the difference in the testimony between the first and the second trials as to the alleged admission. It will not do to say that the court had substantially charged as requested taking all the charge together; for here was a positive refusal to charge which was not cured by any other instruction.

We shall, therefore, have to reverse the judgment, and order a new trial, costs to the appellant to abide the event of the action.


author: The Court.,

text:
    Hyman Schnitzer, Resp’t, v. Morris Willner, App'lt.

      (New York Common Pleas, General Term,

      Filed March 6, 1894.)

    Motion and Order—Irregularity.
    An irregularity, not specified in the notice of motion or order to show cause, may he disregarded.
    Appeal by defendant, a judgment debtor, from an order of the general term of the city court, affirming an order of the special term, which denied his motion to vacate an order for his examination in supplementary proceedings.

      Isaac L. Sink, for app’lt; David Leventritt, for resp’t.
   The Court.,

The order in supplementary proceedings was issued upon the affidavit of David Leventritt made on June 14, 1893, stating that he was the attorney for the plaintiff, the judgment creditor. The judgment debtor moved to vacate the order upon an affidavit stating that the judgment had been assigned to one Adolph Cohen prior to June 2, 1893, that Cohen had commenced an action against the debtor and others to set aside an alleged fraudulent conveyance of the debtor’s property; and that the supplementary proceedings were prosecuted for the purpose of obtaining evidence for Cohen and to be used for his advantage on the trial of his case. The motion vras denied and, we think, properly. It is based on two grounds as now argued before us:

First. That the affidavit in supplementary proceedings was irregular because it was not made by the attorney of the assignee of the judgment and did not recite the assignment. The irregularity was not specified in the debtor's notice of action, or order to show cause, as required by the rules, and therefore might be disregarded. Rule 87.

Second. That the supplementary proceedings were unauthorized by the assignee of the judgment. But the debtor’s affidavit shows the contrary, for he expressly states that the proceeding was taken for Cohen’s benefit in aid of his action to cancel the fraudulent conveyance.

The order is affirmed, with costs and disbursements.


text:
    Elias Hempstead, Resp’t, v. Ernest Flagg, App’lt.

      (New York Common Pleas, General Term,

      Filed March 6,1894.)

    Appeal—Dismissal oe Complaint.
    Where there is no motion to dismiss the complaint at the close of the whole case, the defendant thereby concedes that there was evidence for the consideration of the justice upon the issue under the pleadings.
    Appeal from judgment of the first district court in favor of plaintiff for $92.60 damages and costs. The action was for trespass and the defense was a general denial. The injury proved was the destruction of two boilers belonging to the plaintiff.
   The Court.

The boilers for the destruction of which the plaintiff claims damages, were in the old Hotel Clenham at Fifth avenue and 22nd street, the demolition of which, defendant, as architect and supervisor for the owners, was directing, preparatory to the building of a new structure. He made a contract with one Seagrist to take down the old building, and Seagrist was to have the old material, which included the boilers. Seagrist sold them to the plaintiff before removing them and subsequently, as it is claimed, abandoned his contract, leaving them on the premises. The plaintiff notified defendant of his purchase and tried to sell the boilers back to him. This offer was refused, and defendant notified plaintiff to move the boilers at once. This not being done, within five days thereafter defendant directed one Briggs to take them away, and they were broken up and sold by the latter. There was a question as to whether there was undue delay on plaintiff’s part in getting out the property, which was enclosed in a vault under the sidewalk; and as to whether he stood by and acquicsed in their destruction, when he could have removed them ; but these questions of fact were disposed of by the justice in plaintiff’s favor upon evidence which supports the finding. The plaintiff's title to the property by purchase from Seagrist, which was ratified by defendant, who had authority from the owners, cannot be successfully disputed. The value of the boilers was the subject of conflicting evidence and the finding that they were worth the moderate amount allowed ($75.) ought not to be disturbed.

It is argued that plaintiff failed to prove trespass because he had not possession, or right to immediate possession. The point that he had not proved the cause of the action alleged was not taken in the court below, the motion to dismiss the complaint being made only when plaintiff rested and placed upon the ground that he had not proven sufficient title to maintain an action either for trespass or conversion ; and, there being no motion to dismiss at the close of the whole case, the defendant thereby conceded that there was evidence for the consideration of the justice upon the issue under the pleadings. This disposes of the question now raised that plaintiff had failed to prove title and right to immediate possession. Such questions cannot be raised for the first time on appeal.

The judgment must be affirmed.


text:
    John S. Forster, Resp’t, v. David Eberle, App’lt.

      (New York Common Pleas, General Term,

      Filed March 6, 1894.)

    Landlord and tenant—Board of health.
    A tenant cannot, upon receiving notice from the board of health requiring compliance with § 53 of the Sanitary Code, voluntarily abandon the premises and thereby avoid the payment of rent.
    Appeal from a judgment of the justice of the sixth district court, rendered in favor ot‘ plaintiff for $88 and $17 costs. The action was for rent and the defence was dispossession by order of the board of health. ■
   The Court.

The plaintiff leased to defendant for one year from May 1st, 1891 the stable in the rear of 251 and 253 Hudson street in this city, “to be occupied as a stable and not otherwise.” On August 20th, 1891 defendant was served with a notice from the board of health requiring him in alleged conformity with the provisions of the Sanitary Code “to alter, repair, cleanse and improve the premises” as follows, viz: “Thatall horses be removed from the premises and the stabling of horses there at be discontinued,” and notifying him that any application for necessary extension of time or for suspension of any part of the requirements, must be made to the department within three days from receipt of the notice. The defendant on August 27th, 1891, discontinued the use of the premises, and resists the claims for rent accruing after that date. The plaintiff recovered the rent unpaid for the whole term. The defendant proved at the trial the provisions of the Sanitary Code, § 53, “That no cattle, swine, or sheep, geese, goats, or horses, shall be yarded within or adjacent to the built up portions of the city of New York, without the permit of this department, or otherwise than according to its provisions.” The tenant made no application to the board of health for an-extension of time or suspension of the requirements of the notice.

There was no eviction by the landlord and no final order of the board of health after the hearing of the application for suspension which the tenant was entitled to request under the notice. The tenant voluntarily abandoned the premises without contest. If he is therefore relieved from the payment of rent any lessee by collusively procuring such a notice to be issued and by immediately complying with it might terminate his lease. And it does not appear that there was any violation of any provision of the Sanitary Code. The “yarding” of cattle, swibe, sheep, geese, goats, or horses, is a wholly different thing from the stabling of horses in a properly kept stable. If the lessee kept the horse in the yard instead of the stable, or failed to keep the stable clean so as to authorize the interference of the board that is his fault. But the whole case fails to disclose facts which gave the board of health jurisdiction under the section in question.

Judgment affirmed with costs.


text:
    Alexander Rich, Resp’t, v. The Manhattan Railway Company et al., App’lts.

      (New York Common Pleas, General Term,

      Filed March 7,1894.)

    Apfbal—Former decision.
    Where the appeal from the final judgment, rendered in accordance with the decision upon appeal from the interlocutory judgment, presents no different state of facts and no new question of law, the judgment will be affirmed.

      Leo G. Lessor (Leo G. Lessor and Edwin M. Felt, of counsel) for app’lts; Lavies & Rapallo (Julien T Lavies and Brainard Tolies, of counsel), for resp’t.
   The Court.

The law of the case is settled by the decision of the former general term upon the appeal from the interlocutory judgment in this action, Rich v. The Manhattan Railway Co., 19 N. Y. Supp. 543 ; 46 St. Rep., 673 ; and as this appeal from the final judgment, rendered in accordance with that decision, presents no different state of fact and no new question of law, the judgment will be affirmed.


text:
    George Maitland et al., Resp’ts, v. Central Gas and Electric Company, App’lt.

      (New York Common Pleas, General Term,

      Filed March 7, 1894.)

    1. Pleadings—Answer—Fraud.
    To make available the defense of fraud in an action for royalties, the answer should contain an allegation that, before the royalties accrued, the defendant rescinded or surrendered the license and notified plaintiff thereof.
    2. Jurisdiction—City Court.
    The city court has no jurisdiction to grant affirmative equitable relief.
    Appeal from judgment of the city court general term sustaining demurrer to a separate defense.
    The action was for the recovery of royalty under a license from plaintiffs, patentees, to defendants. A separate defense was pleaded which alleged fraud of plaintiffs inducing defendants to enter into the license agreement. The alleged fraud was the representation of the licensors that the letters patent were valid.

      Birdseye, Gloyd & Bayliss (Benjamin J. Bayliss, of counsel), for app’lt; A. Walker Otis, for resp’ts.
   The Court.

The demurrer was well taken. To make this attempted equitable defense good against the action for royalties it ought to contain an averment that, before the royalties accrued, the licensees had notified the licensors that they repudiated or surrendered the license, so that the latter might be in position to sue for infringements during the period for which they now claim royalties. Marston v. Swett, 66 N. Y., 206 and 82 17. Y. 527 ; Saltus v. Belford, 133 N. Y., 488; 45 St. Rep. 872 ; Skinner v. Walter A. Wood M. & R. Machine Co., 140 N. Y., 217; 55 St. Rep. 568 ; Hyatt v. Ingalls, 124 N. Y, 93 ; 35 St. Rep. 114. See also Hyatt v. Dale Tile Mfg. Co., 106 N. Y. 651 ; 8 St. Rep. 631 ; reported in full in 125 U. S. 49 under title Dale Tile Mfg. Co. v. Hyatt.

The present allegations might be entirely adequate in an action to set aside the license for fraud, if plaintiffs brought such an action in a court having jurisdiction to grant that relief; but that relief would date from the time of the decree setting the license aside and would be no defense in an action for royalties previously accrued. The city court has not jurisdiction to grant such affirmative equitable relief and so the allegations of the so called separate defense are not available in this action as a defense, or for affirmative relief.

The absence of an allegation that before the royalties sued for accrued defendants rescinded, or surrendered, the license and notified plaintiffs thereof, makes this defense bad as an equitable defense, or any defense in this action.

If defendants have a good defense of rescission or surrender and wish to set it up in proper form they must make application to the city court for leave to amend.

We have only to affirm or reverse the judgment.

Judgment affirmed.


text:
    Patrick Cassidy et al., App’lts, v. Frederick K. Aldhous, Resp’t.

      (New York Common Pleas, General Term,

      Filed March 7, 1894.)

    Bills and notes—Consideration.
    The release of a mechanic’s lien, rescinded by mutual consent, furnishes no consideration for an agreement to give a note.
    Appeal by the plaintiffs from an affirmance, of the general term of the city court, of a judgment dismissing the complaint, at the close of the plaintiffs’ case. The action was to recover the value of plumbing materials to the amount of $540.30 from the defendant, through Pierce & Thornton, from whom it was alleged he retained the money to pay the plaintiffs and agreed to do so. The answer was a general denial. The complaint was amended by setting up an agreement of defendant to give the plaintiffs his note for $500 on condition that they satisfy a mechanic’s lien which they had filed for said materials; their compliance with the condition and his refusal to perform his agreement.

      Thomas G. Hnnever, for app’lts; W. H. Benjamin, for resp’t.
   The Court.

When the plaintiffs rested they had failed to prove any authority in Pierce & Thornton to purchase goods on defendant’s credit. So that their sole claim of his liability rested upon the agreement set up in the amendment to their complaint. The proof showed that defendant agreed to give a note for $500 if the plaintiffs removed their lien; that they did discharge the lien, and that defendant subsequently refused to give the note and told the plaintiffs that they might put the lien back again, which they did and filed it against his property. It thus appeared that the agreement for the note in consideration of the removal of the lien was rescinded by mutual consent and the lien restored. Tiiis disposed of the alleged cause of action under the amendment and the complaint was properly dismissed. It is urged by appellant that defendant ratified the purchase by Pierce & Thornton by the agreement to give the $500 note, but the evidence showed that when he agreed to give the note he refrained from acknowledging any liability for the goods.

Judgment affirmed.


text:
    Augustus Schieck, App’lt, v. Hanna Herzog, Resp’t.

      (New York Common Pleas, General Term,

      Filed March 7, 1894.)

    Services—Plumber—Certificate.
    A plumber, who performed services between February 28, 1893, and September 1, 1893, can recover therefor without a certificate on registering as a licensed plumber.
    Appeal from a judgment of the ninth district court dismissing the complaint.
   The Court.

The action was by a plumber for work and materials, for which a balance of $54.86 was claimed. There was a general denial and a counterclaim of $18.75. The justice dismissed the complaint on the ground that the plaintiff had not complied with the provisions of § 5 of chap. 602 of the Laws of 1892, which prescribes an official examination of all persons about to engage in the plumber’s trade, and the obtaining by them of a certificate of competency from the board created by the act; and declares that after March 1st, 1893, it shall not be lawful to engage in the business of plumbing before first obtaining such certificate and registering as a licensed plumber.

It appears, however, that the statute in question was amended by chap. 66 of the Laws of 1893, by which the limitation of time to obtain the certificate was extended to September 1st, 1893. The amendatory act was passed February 28th, 1893, and the work sued for was done between the two last named dates, during which period there was no prohibitory statute.

The judgment must be reversed.


text:
    Agnes S. Lyon, an Infant, by Guardian, etc., App’lt, v. The Manhattan Railway Company, Resp’t.

      (New York Common Pleas, General Term,

      Filed March 9, 1894.)

    Deposition—Physical examination.
    An order for the physical examination of a party should not be granted where it is not made in connection with, or as a part of, an order for his oral examination before trial under § 873 of the Code.

      Appeal from an order of the special term directing the plaintiff to submit to a physical examination on the application of defendant.
    Action to recover damages for personal injuries.

      Davies, Short & Toiunsend (Julien T. Davies and Joseph B.„ Adams, of counsel), for resp’t.
   The Court.

The order will have to be reversed because it was not made in connection with, or as a part of, an order for the oral examination of the plaintiff before trial under § 873 of the Code. The new legislative enactment, Laws of 1893, chap. 721, which gives the defendant when sued for personal injuries the right to demand that the plaintiff submit to a physical examination is as follows: “In every action to recover damages for personal injuries, the court or judge, in granting an order for the examination of the plaintiff before trial, may, if the defendant apply therefor, direct that the plaintiff submit to a physical examination by one or more physicians or surgeons, to be designated bv the court or judge, and such examination shall be had and made under such restrictions and directions as the court or judge shall deem proper. In any action brought to recover damages for personal injuries, where the defendant shall present to the court or judge satisfactory evidence that he is ignorant of the nature and extent of the injuries complained of, the court or judge shall order that such physical examination be made.” This statute contemplates that the application for physical examination shall be made as an addition to an application for the ordinary examination of an adversary before trial. It is enacted as an amendment to the section providing for the latter. ' It leaves the question of ordering a physical examination in actions for personal injuries to the discretion of the judge unless the defendant proves “ that he is ignorant of the nature and extent of the injuries complained of,1’ in which case the court is bound to grant the order. The reason for thus connecting the physical examination with the oral is plain: It is to afford the plaintiff who is examined, as well as the defendant who has demanded the examination the benefit of such examination at the trial and to that end to preserve the record of it, Sections 880 and 881 enact, of examinations under § 873, that “ the deposition when completed must be carefully read to and subscribed by the person examined; must be certified by the judge or referee taking it; and, within ten days thereafter, must be filed in the office of the clerk.” Also that “ the deposition, or a certified copy thereof, may be read in evidence by either party at the trial.” Where a physical examination is had the questions put to the plaintiff, the answers thereto, and the testimony of the physicians by whom the examination is made, are (so far as required by either party) to be reduced to writing, verified, certified and filed, and may be read by either party. Were it otherwise there would be no record of the physical examination and the evidence obtained by it would be available to the party who calls the physician and then only to the extent of his recollection or the accuracy of his notes, if he makes any.

These ' difficulties and dangers presented themselves to the learned judge at special term, who, in view thereof, has devised an excellant means of working the statute which can be put in practice under § 873 of the Code under the proper order.

The question of the constitutionality of the statute is not before us as the order does not come up in a shape to present that question.

Order reversed.


text:
    William Tubridy, App’lt, v. Stephen J. Wright et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed March 12, 1894.)

    1. Mechanic’s lien—Death ot owner.
    A mechanic’s lien, filed subsequently to the owner’s death, does not attach to the building or land or the interest of the heirs or devisees.
    2. Same—Consent op trustee.
    The consent of a trustee to the completion of the work does not relate hack so as to bind the estate for the work done under contract with the former owner.
    Exceptions to referee’s report on appeal from judgment.

      Earley & Prendergast¡ for app’lt; E. H. Moeran ( Wm. J. Leitch, of counsel), for resp’ts.
   The Court.

We have repeatedly held that the right to file a mechanic’s lien for and labor performed, upon a contract with the owner of a building, terminates with his death; and that a lien filed subsequently does not attach to the building or land, or the interest of the heirs or devisees. Crystal v. Flannelly, 2 E. D. Smith, 583 ; Meyers v. Bennett, 7 Daly, 471 ; Brown v. Zeiss, 9 Daly, 240.

These decisions were under former mechanic’s lien acts, and the appellant now contends that they are not controlling under the act of 1885, chapter 342, the benefit of which is claimed by the lienor here. This contention is based mainly upon the fifth section of the act, which provides that the lien filed under it shall be preferred as prior to any conveyance, judgment, or other claim, which was not docketed or recorded at the time of filing the notice of lien; and the argument is that except as against recorded conveyances and claims and docketed judgments, the lien is to be preferred against every other claim whatsoever; the legislature intending to exclude all preferences over the lien not specified in the statute.

This contention is disposed of by the decision in McCorkle v. Herman, 117 N. Y. 297 ; 27 St. Rep. 333, where the present lien act and this particular section of it were under consideration. The court held that the section gave the lien priority over unrecorded conveyances and undocketed judgments, etc., but that no other priorities are given by the act; and that where a creditor, who prior to the filing of the lien, has pursued the usual remedies for the collection of debts and acquired a legal or equitable right to have the sum due from the owner for labor or materials, applied in satisfaction of his claim, such right is not overreached by liens subsequently filed under the act Upon this reasoning it must be held that the interest of the heirs or devisees of the deceased owner, not being included in the action enumerating the claims over which the lien is to have priority, the lien filed subsequently to the vesting of their title is not to be preferred over it. As to the consent of the trustees to the completion of the plaintiff’s work, that consent does not relate back so as to bind their estate for the work done under the consent of the former owner. Mitchell Vance Co. v. Daiker, 46 St. Rep. 189 ; 19 N. Y. Supp. 378.

The judgment is affirmed, with costs.


author: Thf Court.

text:
    Bernard Katz et al., Resp’ts, v. John Haffen et al., App’lts.

      (New York Common Pleas, General Term,

      Filed March 14, 1894.)

    Principal and agent—Liability.
    Where the arrangement between the defendants and a third party was, in substance, to allow the latter for his compensation what he could earn above the expense of running the store and a nominal rent, he is the agent of defendants and his transactions bind them.
    Appeal from a judgment of the justice of the first district court in favor of plaintiff for $247.82 damages and costs. The action was for the value of ale and porter sold and delivered at the retail liquor store 207 West street, and corner of Canal and Sullivan streets, in this city, between March 31st, and June 1st, 1892.

      Wm. F. Browne, for app’lts; F. Fider, for resp’ts.
   Thf Court.

The complaint alleges a sale to defendants and the answer denies it The transactions were between plaintiffs and one Mark Mayer, who was at the time ostensibly proprietor of the stores, but there was evidence that he was but the agent of defendant to conduct the business for them. They were brewers and engaged in the business of brewing and selling lagerbeer, and the plaintiff’s evidence showed that they put Mayer in charge to run the stores, requiring him to turn over to them weekly all the receipts above the expenses and $15 a week for his wages; and that after the delivery of these goods they promised to pay for them and instructed Mayer to do so; that they admitted the ownership of the stores and that they had Mayer in charge of them; that they instructed Mayer to buy goods in his own name; and that when they saw fit they transferred him from one store to the other, and finally dismissed him. The evidence in defendant’s behalf showed an arrangement for a nominal rental to be paid by Mayer, but it was contingent upon his taking in sufficient money for that and the running expenses, and the whole case warrants the inference that this was but an arrangement to allow Mayer for his compensation what he could earn above the expense of running the place and the nominal rental.

The judgment must be affirmed.


author: The Court

text:
    Joseph Birnbaum, an Infant, by Guardian ad litem, etc., Resp’t, v. Samuel Lord et al., App’lts.

      (New York Common Pleas, General Term,

      Filed March 14, 1894.)

    1. Appeal—Exception.
    An exception to a ruling, made upon an objection which does not point out the error, is not available.
    2. Negligence—Sudden danger.
    Where sudden and instinctive impulse on the part of the boy to escape impending danger, after receiving warning thereof, results in an accident, in the absence of time to form an intelligent and deliberate judgment as to the best means of escape, negligence is not imputable to him.
    Appeal from judgment of the general term of the city court, affirming a judgment for plaintiff, entered upon a verdict of a jury for $250. The action was for negligence on the part of the driver of defendant’s wagon in running over the infant plaintiff, a boy about twelve years old, while he was crossing Chrystie street at Stanton street, in this city.

      Henry Tompkins, for app’lts; Kdward 0. Stone (Charles G. F. Wahle, of counsel), for resp’t.
   The Court

The complaint was sufficient in alleging that the wagon belonged to defendants and was by one of their agents or servants, although it does not otherwise allege that the latter was then engaged in the defendant’s business; but that it is involved in the allegation that the wagon was driven by their agent or servant; for, if the servant was not engaged upon his master’s business, he would be neither agent or servant, but his own master. As to the proof of ownership of the wagon, the defendants’ name was on the wagon and there is no pretence of evidence on the trial that it did not belong to them. No witness was called by them on that point, although the proof of the fact, if it existed, must be deemed to be in defendants’ possession; all presumptions on that point were therefore against them. Wennerstrom v. Kelly, 27 N. Y., Supp. 326 ; 57 St. Rep., 522. The ownership of the wagon and the agency of the driver was, therefore, questions for the jury.

As to the exceptions to rulings upon evidence : In some cases the grounds of objection were not stated and the exceptions are of no avail. Cruikshank v. Gordon, 113 N. Y., 178 ; 28 St. Rep., 784. As to the objection to the question calling for the conversation of the plaintiff’s witness, Stone, with the alleged superintendent of the defendants, it was put upon the ground that the conversation was in the absence of the defendants, not that the person in question had no authority to act for them. When the conversation was given, and it appeared that the alleged superintendent had impliedly admitted that the accident had been reported to him, by some person in defendants’ employ who had charge of the horses and wagons, a motion was made to strike it out upon the ground that it was a conversation with an alleged servant of defendants, in their absence, not upon the ground that the servant had no power to bind his master by such admissions. Besides, the motion was to strike out all the testimony, and it did not consist wholly of admissions; the alleged superintendent directed that the doctor call and see the boy. This was an act which might have been within his authority, and the motion to strike out, as we have seen, was not based upon want of authority. The exception to the ruling made upon an objection which did not point out the error is not available. Sterrett v. Third Nat. Bank, 122 N. Y., 659 ; 34 St. Rep., 241.

There is no force in the objection that the minutes of the former trial were improperly admitted. They were proved without objection by the testimony of defendant’s counsel. There was no objection that the proper foundation for their admission, in impeachment of defendants’ witness, had not been laid by first questioning the witness as to his testimony upon the former trial. The judge’s statement that they were admitted to impeach the witness was not excepted to. The exception was as to the admission of the minutes; and the attention of the court was not -called to the point now made, that the reason given for admitting the paper might have influenced the jury.

On the main issue in the case, that of negligence, there seems to have been sufficient evidence to go to the jury on the question both of the driver’s negligence and the alleged contributory negligence of the plaintiff. Here was a boy of 12 years of age, carrying a load of empty cigar boxes, and about to cross the street. When he left the side-walk and first saw this wagon it was in the middle of the .block going slowly, so that it was not imprudent for him to cross at that time. While crossing the driver whipped his horse, and said “get up” and the horse began to run. The ■ plaintiff tried to run across and was struck. The presumption is that the driver saw him in view ; because it was his duty to look out before him for pedestrians and so he could have easily avoided the accident by turning his horses. Whether it was prudent on the boy’s part when he heard and saw the driver, and the horse commence to run, to cross in front of the horse, or whether he should have stepped back, was a question for the jury; and it is for them to say whether he exercised that care which was to be expected of a boy of his age. Even if it were not a prudent act for him to start and run, the sudden peril excused him. If a sudden and instinctive action on his part to escape impending danger, after receiving warning thereof, resulted in the accident, there not being time to form an intelligent and deliberate judgment as to the best means of escape, negligence is not imputable to him, Quill v. N. Y. C. & H. R. R. R, 16 Daly, 313 ; 32 St. Rep., 612 ; affirmed, 126 N. Y. 629 ; 36 St. Rep., 1012.

The judgment must be affirmed.


text:
    Herman Oetjen, Resp’t, v. Henry F. Fayen, App’lt.

      (New York Common Pleas, General Term,

      Filed March 14,1894.)

    1. Judgment—Vacation.
    When the papers have been served upon the defendant, his motion to set aside a judgment upon the ground that his oSer thereof, or consent thereto, was procured by false representations as to the claim made by the-complaint, is properly denied.
    2. Same—Waiver.
    The defendant, by consenting to a judgment for the whole amount, waives the objection that the credit as to part of the indebtedness has not. expired.
    Appeal by defendant from an order of the general term of the-city court affirmed an order denying his motion to vacate the judgment against him or to reduce the amount thereof, and to vacate attachment issued in the action.

      Gumbleton & Hottenboth, for app’lt; Foster, Hotaling & Klenke,. for resp’t.
   The Court.

The defendant swore that he had never been served with the summons, nor complaint, nor with the affidavits-upon attachment, but he was contradicted by at least three witnesses, and we cannot interfere with the conclusion of the city court upon a question of fact so presented. The motion to set aside the judgment upon the ground that the defendant’s offer thereof, or consent thereto, was procured by false representations as to the claim made by the complaint, was properly denied; since as he-had been served with the papers, he had the means at hand of discovering the falsity of the representation and of ascertaining what he was sued for. It also appears that the judgment was entered for no greater sum than he owed, if the time of credit had not expired. As to a part of the indebtedness the credit had not expired, but he could waive that objection and he did so by consenting to a judgment for the whole amount. It does appear that, he overlooked the fact that a credit of $20, was not allowed him, but as the judgment was immediately satisfied he was not injured. The motion to vacate the attachment upon the merits was made-upon the facts and as there was sufficient evidence to sustain the finding the decision will not be disturbed. No irregularities in the-affidavits were pointed out in the notice of motion as required by the rules.

The order is affirmed.


text:
    Christopher A. Johnson, as Administrator, etc., App’lt, v. John P. Friedhoff, Resp’t.

      (New York Common Pleas, General Term,

      Filed March 14,1894.)

      1. Sale—Good will.
    The vendor, who sells the good will of a business, guarantees nothing.
    2. Same.
    In such case, the purchaser is without remedy, unless he can show fraudulent representation or suppression of fact on the part of the vendor.
    Appeal by the plaintiff from a judgment of the general term of the city court affirming the dismissal of the complaint. The action was brought to recover the sum of $1,210, balance due on the purchase of the lease of the premises 112 Sixth Ave., and the-good will of the business theretofore conducted at said place. The premises were sold at public auction and the defendants bid. was §1,250. The answer of the defendant contains various denials, putting in issue allegations of the complaint; but, admits the sale to him at auction for the said price, and alleges that the good will of the business sold to him consisted of the patronage of a retail liquor saloon; that he afterwards ascertained that there was no good will to the said business; that the premises had been raided by the police authorities on account of a murder committed there, and the license to carry on the liquor trade issued to the plaintiff had been revoked at the time of the sale and the good will of the business was therefore worthless; that all this was known to the plaintiff and the fact of the revocation of the license was suppressed at the sale and not made known to the defendant. The court dismissed the complaint on the ground that there was no good will to sell.

      D. Frank Lloyd, for app’lt; Babe & Keller, for resp’t.
   The Court.

The good will of a business is the custom which it attracts and the benefits or advantage it receives from constant or habitual customers and the probability that the old customers will continue to come to the place. Burrill’s Law Dic. vol, 1, 689 ; Fenn v. Bolles, 7 Abb. 202. The vendor who sells the good will of a business guarantees nothing; for in the nature of things he can give no assurance that the patronage of the place will continue. It is the sale of a mere chance that a preference which has usually been extended will continue. Am. & Eng. Enc. Law Vol. 8, p. 1366. He sells what he has, and if the purchaser when he attempts to continue the business discovers that there is no trade or custom connected with it he is without remedy unless he can show some fraudulent representation or suppression of fact on the part of the vendor. In this case there is an allegation of a suppression of fact, but there is evidence that the auctioneer expressly stated at the sale that the license had been revoked, If there were any questions of fact upon that point it was for the jury. The court dismissed the complaint upon the ground that the evidence established that there was no good will to sell. It appeared that the license of the place had been revoked on account of a crime committed there, but there was nothing in the evidence besides to show that if the place were re-opened under reputable management a license could not be procured and the business conducted so as to attract the trade or custom which it formerly enjoyed or which it was likely to acquire on account of the location of the premises. Until the defendant had actually attempted to conduct the business upon the premises there was no means of determining whether the former custom could be induced to return. This was a matter which depended wholly upon experiment, and the experiment had not been tried.

As to the failure to assign the lease, the defendant having refused to complete his purchase, the tender of such assignment was not necessary, and the court having expressly refused to dismiss upon the ground of want of assignment, thereby relieving the plaintiff from the necessity either of proving it or amending his complaint, which he might have asked leave to do, the dismissal cannot be affirmed on that ground.

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


text:
    William H. Weaver et al., Resp’ts, v. Joseph T. Farrington et al., App’lts.

      (New York Common Pleas, General Term,

      Filed March 15, 1894.)

    Bills and notes—Holder for value.
    A transferee of a negotiable note, taken before maturity as collateral security for a precedent debt, may, in the absence of diversion and fraud, enforce it against an accommodation maker and endorser.
    Appeal by defendant from a judgment of the general term of the city court, affirming a judgment for plaintiff, entered upon a verdict directed by the court. The action was upon a promissory note made by George Blair and endorsed by Joseph T. Farrington.

      Samuel 0. Mount, for app’lts; Nelson S. Carr, for resp’ts.
   The Court.

The facts which the appellant Farrington, the endorser, sets up in his answer, the right of the plaintiff to recover; for, while alleging that he endorsed the note for the accommodation of Blair, he avers substantially" that the latter transferred it to the plaintiff as collateral security for an existing indebtedness of Blair, and nowhere alleges that there was either fraud or diversion in such transfer.

In the case of The Mechanics and Traders' Bank v. Livingston, 55 St. Rep. 394 ; 26 N. Y. Supp. 25, we held that the transferee of a negotiable note, taken before maturity as collateral security for a precedent debt is a holder for value and he may enforce it against the accommodation maker and endorser if there be no diversion or other fraud in its acquisition. None of the defenses which were attempted to be proved on the trial were set up in the answer and were therefore properly excluded.

The judgment must be affirmed.


text:
    Louis Curtis, App’lt, v. Charles L. Ritzmann, Resp’t.

      (New York Common Pleas, General T&rm,

      Filed March 15, 1894.)

    1. Appeal—Limitation.
    Strict practice is required of a party who would limit the time of his adversary to appeal.
    2. Same—Notice op entry op judgment.
    The omission of the date of entry of the judgment in the notice cannot be supplied by information in the copy of judgment, upon which such notice is indorsed.
    Appeal by the plaintiff from an order of the general term of the city court affirming an order denying his motion to dismiss defendant’s appeal from an interlocutory judgment on the ground that the appeal was not taken in time.

      R F. Bullard, for app’lt; J. G. Tlammer,'for resp’t.
   The Court.

The defendant interposed a demurrer which was overruled, an interlocutory was 28, 1893. His notice of appeal therefrom was served on January-19, 1894, and was too late if plaintiff had given proper notice of the entry of his judgment more than ten days previously. Code, § 3190.-

We agree with the city court that the notice waá not sufficient, because it failed to state the date of the entry of the judgment. It was indorsed upon a copy of the judgment and its sufficiency must be determined by what it contained and cannot be supported by information as to the date of entry contained in another part of the document. Date of entry of the judgment is a requisite of the notice. Matter of N. Y. C R. R. Co., 60 N. Y. 112. This is to enable the adversary to insert the exact date in his notice of appeal, for if there be error in giving date of entry of the judgment in the notice of appeal, or in the undertaking on appeal, they are irregular and may be disregarded. Dinkel v. Wehle, 61 How. 159. Strict practice is required of a party who would limit the time of his adversary to appeal. Good v. Deland, 119 N. Y. 153 ; 28 St. Rep. 935.

Order affirmed, with costs and disbursements.


text:
    Bernard S. McKean, App’lt, v. Charles H. Adams, Resp’t.

      (New York Common Pleas, General Term,

      Filed March 15, 1894.)

    Appeal—Noe-appealable.
    An order of the general term of the city court vacating the case on appeal and the settlement thereof on the ground of irregularity, is not appeal-able to the court of common pleas.

      F. G. Bullard (F. F. Bullard, of counsel), for app’lt; Booraem, Hamilton & Beckett ( William H Hamilton and Henry M. Ward, of counsel), for resp’t.
   The Court.

The appeal will have to be dismissed because the general term of the city court of which appellant complains is not appealable to this court under any provision of the Code. It is an order vacating his case on appeal and vacating the settlement thereof, and was made because the settlement of the case was procured irregularly. The appellant is not thereby deprived of his appeal from the judgment. He still-has his remedy. The facts are these: He appealed in the city court from a judgment of the trial term and served a case upon appeal. It was returned for alleged irregularities, and he subsequently applied to the justice who tried the cause for a settlement of the case upon the ground that no amendments had been served. The application was granted and the case settled and filed and notice thereof given to the respondents, who immediately moved before the justice upon affidavits to vacate the order settling the case and ordering it on file and to vacate the case. The motion was granted, manifestly because the appellánt had not disclosed, when he applied to the judge for an order settling the case and ordering it on file, that it had been returned by the respondents. The judge very properly vacated his order, leaving the appellant to his remedy by motion to compel the respondent to receive the case. . That he can make now, and no substantial right is affected by the order appealed from.

The question determined by the city court was a minor point of practice of the correctness of which they are the judges, and does not affect the merits. People v. N. Y. Cent. R. R. Co., 29 N. Y., 421. The question whether the action to vacate the order and case should have been made at a special term or before the judge who settled the case is immaterial, as the order is not appealable in any respect for the reasons stated.

Appeal dismissed, with $10 costs and disbursements to respondent.


text:
    August Gemunder et al., Resp’ts, v. Isidor Hauser, App’lt.

      (New York Common Pleas, General Term,

      Filed March 15,1894.)

    Bbokbb—Commission.
    Where the sale is certainly the result of the broker’s efforts and not due to any other agency, he is entitled to compensation.
    Appeal from a judgment of the general term of the city court affirming a judgment for plaintiff entered upon the verdict of a jury. The action was to recover $500 commissions for procuring the sale of a “ Stradivarius ” violin at the price of $5,000 upon a special agreement of employment by defendant.

      Toionsend, Dyett & Mnstein (Henry Yonge, of counsel), for app’lt; Tillo, Buebsamen & Cochran, for resp’ts.
   The Court.

The evidence was sufficient to sustain a finding by the jury, that the plaintiff was the procuring cause of the sale of defendant’s violin, to Mr. Gordon McKay. It seems that the sale was effected through Miss Yan Stosch, an eminent performer on the violin, who called the attention of Mr. McKay to the instrument in question, and he purchased it in order that she might have a superior instrument to play upon. He was a man of wealth who could afford thus to indulge his artistic taste and generous sentiments.

The plaintiff had urged Miss Yan Stosch to use the instrument suggesting that some wealthy person might buy it for her, and had communicated that suggestion to defendant who had employed him to find a purchaser. The result turned out as plaintiff hoped, and was due to his interesting Miss Yan Stosch, who strongly-recommended the instrument to Mr. McKay, so that the sale was certainly the result of plaintiff’s effort and not to any other agency. We do not consider it of much, if any, importance that plaintiff had originally been the first to speak to Miss Yan Stosch about the violin and had called her attention to it, (long before she saw it or spoke to defendant about it); because, as she says, that went out of her mind; and if that was all that there was in the case we doubt if the plaintiffs would be entitled to recover. But when some weeks afterwards, she saw the violin at the defendant’s house, she recalled that plaintiff had spoken to her about it, and next day went to plaintiff, mentioned the subject and then came his suggestion which ultimately resulted in. the purchase by Mr. McKay.

As to the exceptions, they are disposed of by the appellant’s brief, and there is no error which calls for reversal.

Judgment affirmed, with costs.


text:
    John C. McQuhae, Resp’t, v. Charles Lehman, App’lt.

      (New York Common Pleas, General Term,

      Filed March 16, 1894

    Appeal—Default—Opening.
    The principle, enunciated in this case, is concisely stated in the opinion of the court.

      William McArthur, for app’lt; Thomas D. Bambant, for resp’t.
   The Court.

The motion to open the default should be denied ior the reasons ; that the appellant failed to appear on Monday, March 12th, the day that the appeal was set down for argument; that he failed to pay the costs previously imposed before the case was called on that day; and finally, that the order which he appeals from was entered upon his own motion at special term and .-granted him leave to come in and defend upon terms; that he did not comply with the terms and that a final order denying his motion has been entered it appears, upon his consent.

Motion denied without costs.


text:
    Eliphalet L. Davis, Resp’t, v. Ella V. A. Dayton et al., App’lts.

      (New York Common Pleas, General Term,

      Filed March 16, 1894.)

    Bills and notes—Bona fide holder.
    The bona fide holder of a check is entitled to enforce it against an accommodation maker and indorser.
    Appeal by defendants from an affirmance by the city court of a judgment in favor of plaintiff, entered upon the verdict of a jury.

      Alfred P. W. Seaman, for appl’ts; Foley & Powell (Henry A. Powell, of counsel), for resp’t.
   The Court.

The action was upon a check made by Ella Y. A. Dayton and endorsed by Abram H. Dayton. Both defendants ■put in issue the allegations of the complain, and the answer of Mr. Dayton sets up that the check was signed in blank by Mrs. Dayton and delivered to him, to be used as he might require, when there was any balance in bank to draw against; and that lie delivered the check to one Ward (who had previously asked him for a note •or check for his, Ward’s accommodation), and that Ward received the check on the agreement that it should not be presented for payment, or deposited, and was informed that there were no funds in bank to meet it; and that, if it was transferred to plaintiff, it was after it was due and payable, and without consideration and ior the accommodation of Ward. On the trial the plaintiff proved "that he received the check two days after it was made and that he paid Ward the whole face of the check and was told by the latter to hold it. It was presented afterwards at the bank for payment and payment was refused. Plaintiff was a bona fide holder of the check and entitled to enforce it against the maker who had made it for the accommodation of the latter. It had legal inception when plaintiff had purchased it from Ward for full value. No defense of diversion was pleaded and the court properly excluded offer of proof thereof either by Dayton or Ward, although,, when plaintiff waived objection to such proof, defendants did not offer any. The exceptions are unavailing. There was a motion to dismiss the complaint (made apparently before plaintiff rested), on the ground that there was no proper demand and notice to charge the endorser; but after the plaintiff rested the motion was not renewed and no further objection was made on that ground. Exception was taken to the exclusion of a conversation between Ward and a witness called for defendant. The object of it was not stated except that it was to be connected so as to prove knowledge of the plaintiff. Plaintiff’s knowledge could not be proved by giving testimony as to what Ward knew, said or heard.

Judgment affirmed with costs.


author: Martin, J.

text:
    George W. Beagle, Resp’t, v. Robert Harby et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 8, 1893.)

    Evidence—Parol.
    Parol evidence is admissible, where the written instrument was executed in part performance only of an entire oral agreement.
    Appeal from a judgment in favor of plaintiff, and from an order denying a motion for a new trial made on a case and exceptions.

      H. II. Hanford, for app’lts ; Alexander Neish, for resp’t.
   Martin, J.

The facts in this case, so far as they relate to the questions presented on this appeal, can be briefly stated. The action was to recover damages for the breach of contract. The contract as alleged, and found by the jury, was that the plaintiff would transfer to the defendants his farm for the sum of $2,200 ; that the defendants would sell it to one Olmstead, if possible, and get the highest price.they could obtain, and divide equally with the plaintiff any sum they should receive for it in excess of the price paid. In pursuance of this agreement the plaintiff deeded his farm to the defendants, who on the same day sold and conveyed it to Olmstead. The consideration for the last transfer was $2,800, which was paid by transferring to the defendants another farm at the agreed price of $1,700, and delivering to them a bond and mortgage for $1,100. The defendants paid the plaintiff the consideration named in the deed to them, and for certain personal property purchased by them of the plaintiff, but did not pay him any portion of the amount they were to receive for the farm in excess of the price paid. This action was to recover one-half of the profits arising from such purchase and sale. If the contract between the parties was valid, the proof was sufficient to sustain the verdict. The farm received from Olmstead in exchange for the one sold by the plaintiff has not been sold by the defendants, yet the plaintiff’s proof was that he offered to take the place at the price allowed for it by the defendants, provided they would allow him one-half of the sum that the defendants would thus receive above the $2,200 paid for the plaintiff’s farm, as they agreed, and that the defendants not only refused to allow or pay him that sum, but denied the existence of any such contract, or any liability on their part to pay the plaintiff any portion of the profits of the transaction. Under these circumstances we are of the opinion that the plaintiff was entitled to maintain this action, provided the contract between the parties can be enforced, and that the defendants’ motion to dismiss the action because it was prematurely brought was properly denied.

The-most important and the only other question raised on this appeal relates to the admissibility of the plaintiff’s evidence to establish the contract between the parties. The appellants claim that parol evidence of the contract made between the parties was inadmissible, because all their preceding negotiations were merged in the deed, and that it tended to contradict or vary its terms. If the deed between the parties embraced all the agreements and understandings made or had between them, the former negotiations would be merged in it. But the rule that all previous negotiations or conferences between the parties ’ merged in a subsequent written instrum^*- ~y __ qualification. A contract which is not required b, ovatuté to be in writing may be partly expressed in writing, and partly by an unwritten understanding between the parties, and, if so, such understanding may be proved by parol. Where a verbal contract is entire, and a part, only, in part performance, is reduced to writing, parol proof of the entire contract is competent. Hutchins v. Hebbard, 34 N. Y. 24 ; Hope v. Balen, 58 N. Y. 380 ; Brigg v. Hilton, 99 N. Y. 517. The plaintiff’s proof in this case showed that the whole contract between the plaintiff and defendants was not reduced to writing, and that the deed was executed and delivered in part performance, only, of the entire contract between them. We think this case falls within a qualification of the general rule, and that the court properly admitted the evidence unless the defendants’ claim that it tended to contradict or vary.the deed should be sustained. The general rule which excludes parol evidence when offered to contradict or vary the terms, provisions, or legal effect of a written instrument is well settled. There are various cases, however, where this rule does not apply. “It has no application to collateral undertakings,— Lindley v. Lacey, 17 C. B. (N. S.) 578 ; Jeffery v. Walton, 1 Starkie, 267 ; Batterman v. Pierce, 3 Hill, 171 ; Erskine v. Adeane. 8 Ch. App. 756,”—Engelhorn v. Reitlinger, 122 N. Y. 80 ; 33 St. Rep. 275 ; or where the written instrument was executed in part performance, only, of an entire oral agreement. Chapin v. Dobson, 78 N. Y. 75 ; Van Brunt v. Day, 81 N. Y. 251 ; Juilliard v. Chaffee, 92 N. Y. 529 ; Brigg v. Hilton, 99 N. Y. 526 ; Ferguson v. Baker, 116 N. Y. 257; 26 St. Rep. 626 ; Routledge v. Worthington Co., 119 N. Y. 593 ; 30 St. Rep. 195 ; Pond v. Harwood, 139 N. Y. 126 ; 54 St. Rep. 640. If the. plaintiffs theory in this case was correct, and the jury has so found, the deed from the plaintiff was not a complete contract embracing all the particulars of the agreement, or designed to express the whole arrangement between the parties, and the parol evidence given was consistent with, and not contradictory of, the deed. This case does not, therefore, come within the principle of Thomas v. Scutt, 127 N. Y. 133, 138; 38 St. Rep. 692 ; and kindred cases. We are of the opinion that the court properly admitted the parol evidence of the agreement between the parties, and, as no other errors are claimed by the appellants, the judgment should be affirmed. Judgment and order affirmed, with costs. All concur.


text:
    Loren Doing, as Administrator of Robert P. Hare, Deceased, App'lt, v. New York, Ontario & Western Railroad Company, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed December 8, 1893.)

    1. Master and servant—Rules.
    A company is not negligent in not making a rule to govern the conduct oí employes in shifting cars, where there is no evidence that other companies had rules on the subject, or that rules are necessary or practicable in such case.
    3. Same—Appliances.

    When injury to an employe results from a defect in the implements, it must be shown, in order to render the master liable, that he knew of the defect, or omitted the exercise of proper care to discover it.
    Appeal from a judgment dismissing the complaint with costs.

      W. F. Jenlcs and George W. Bay, for app’lt; Howard D. Newton, for resp’t.
   Martin, J.

This action was for negligence. The plaintiff’s intestate was in the employ of the defendant as a car repairer. On March 3, 1890, he wag engaged in his work underneath a car that was blocked up for repairs inside of the defendant’s repair shop in the village of Norwich. The shop was about 200 feet long and 50 feet wide. There were three doors in the south end and no window. Three tracks were laid into this shop from the south, which connected with a track running to and connecting witli the main tracks in the defendant’s yard. That day, while attempting to place a car, partially loaded, opposite a pile of scrap iron by the side of one of the tracks leading into the shop, other employes of the defendant drew the car by an engine to a switch about 800 feet from the shop, and then “shunted” or “kicked” the car onto the track from that point It passed over the distance between the switch and shop, and ran through the doors, which were closed, into the shop, and fatally injured the plaintiff’s intestate. The plaintiff claims that the defendant was negligent (1) in not furnishing his intestate a safe place in which to do his work; (2) in not making and promulgating proper and necessary rules for the government of its employees while managing and shifting cars in its yard; (3) in not keeping the brake upon the car which caused the injury in proper repair.

A careful examination of the evidence fails to disclose any proof which even tended to show that the place where the intestate was engaged in his work was not a safe and proper place for the work in which he was engaged. Hence the court could not have properly submitted that question to the jury.

The next question is whether the defendant was guilty of negligence in not making or promulgating proper and necessary rules for the government of its employes when managing and shifting cars in its yard. We think the evidence failed to establish the fact that no such rule was made and promulgated. It was quite to the contrary, and insufficient to justify the jury in so finding. But, if the evidence had been sufficient to sustain such a finding, we should still be of the opinion that it was insufficient to justify the court in submitting the question of the defendant’s negligence to the jury on that ground. In this case no evidence was given that any rule was in use by other corporations engaged in business of similar character, or by experts or other witnesses to show that any rule was necessary or practicable in such a case; nor was the evidence such as to make the necessity and propriety of making and promulgating the rule contended for so obvious as to make the question one of common experience and knowledge. In Berrigan v. N. Y., L. E. & W. Railroad Co., 131 N. Y. 582 ; 42 St. Rep. 858; in discussing a similar question, it was said :

“ The defendant was only bound to use ordinary care in formulating rules, and it is not reasonable to proceed upon the assumption that every injury to an employe can be guarded against and prevented by making such rules. It was the duty of the defendant to anticipate and guard against, by rules or otherwise, only such accidents and casualities as might reasonably be foreseen by 'the managers of the corporation, exercising ordinary prudence and care. * * * In the absence of some proof on the part of the plaintiff that such a rule was in operation .by other roads, or of persons possessing peculiar skill and experience in the management and operation of railroads to the effect that such a rule was necessary or practicable under the circumstances, or unless the necessity and propriety of making and promulgating such a rule was so obvious as to make the question one of common experience and knowledge, the court is not warranted in submitting such a question to the jury.”

See also Morgan v. Hudson River Ore and Iron Co., 133 N. Y. 666 ; 45 St. Rep. 112 ; Larow v. N. Y., L. E. & W. R. R. Co., 61 Hun, 11 ; 40 St. Rep. 26.

Was the evidence such as to require the court to submit the question of the defendant’s negligence to the jury on the ground that the brake upon the car was out of repair? The evidence bearing upon that question was very slight, but perhaps sufficient to have justified the court in submitting the question to the jury, if there was any proof that it had been out of repair a sufficient length of time to justify the jury in finding that the defendant knew of its condition, or was negligent in not ascertaining it. An employer does not undertake absolutely, with his employes, for the sufficiency or safety of the implements and facilities furnished for their work, but only for the exercise of reasonable care; and, when injury to an employe results from a defect in the implements, knowledge of the defect must be brought home to the employer, or proof given that he omitted the exercise of proper care to discover it. Devlin v. Smith, 89 N. Y. 470 ; Wright v. N. Y. C. R. R. Co., 25 N. Y. 562 ; Chapman v. Erie R. R. Co., 55 N. Y. 579 ; Baulec v. N. Y. & H. R. R. Co., 59 N. Y. 856 ; Edwards v. N. Y. & H. R. R. Co., 98 N. Y. 245 ; Kelly v. N. Y & Sea B. R. R. Co., 109 N. Y. 44 ; 14 St. Rep. 36. We think the evidence" was insufficient to justify the court in submitting to the jury the question of the defendant’s actual or constructive knowledge of the defect in the brake. It is manifest, we think, that the injury to the plaintiff’s intestate was caused by the negligence of his coemployes, and that the court properly nonsuited the plaintiff.

Judgment affirmed, with costs.

All concur.


text:
    Adelaide Knight, Resp’t, v. Alonzo Church, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 8,1893.)

    Evidence—Judgment.
    In an action on a judgment, the value of defendant’s property at the time of the sale on execution, is inadmissible to establish satisfaction, unless he was deprived of other property than that sold or the sale was not in all respects fair and properly conducted.
    Appeal from a judgment in favor of the plaintiff entered on the report of a referee.

      C. W. Thompson, for app’lt; Wayland F. Ford, for resp’t.
   Martin, J.

This action was upon a judgment entered in Jefferson county, in favor of the National Union Bank of Water-town, against the defendant and Martin Y. Knight, for $265.16. The defense was payment. The issues in the action were referred to a referee to hear and determine. The referee found that such judgment was fully recovered; 'that it was assigned by the bank to the plaintiff, May 9th, 1887; that, as between him and Martin Y. Knight, the defendant was liable for the amount due thereon ; that there had only been paid thereon the costs of the action, $23.42; $25 March 20th, 1878, and $14 May 10th, 1878 ; that on October 4th, 1887, the defendant, with full knowledge of the assignment and the amounts paid on such judgment, settled and paid this then existing indebtness to the Union Bank; that the payment to the bank or its attorney to apply on the obligations held by it against the defendant did not equal the amount of such obligations and interests; and that the defendant acquiesced in and ratified the applications of the money paid on his obligations to the bank at and before the time of such settlement. Asa conclusion of law th.e referee held that the plaintiff was entitled to recover of the defendant $241.74, with interest from October 23d, 1877, which amounted to $393.69, after deducting $25 paid March 23d, 1878, and $14 paid May 10th, 1878, and directed judgment accordingly.

The only issue between the parties in this case arose upon the allegation in the answer that the judgment upon which the action was brought had been paid. The burden of proof was upon the defendant to establish this defense. A careful study of the evidence contained in the appeal book renders it quite manifest that the defendant did not establish his defence with sufficient clearness to require the referee to find in his favor upon that issue. Indeed, we think the evidence was quite sufficient to justify the referee in finding affirmatively that no portion of the judgment had been pai’d except as found by him in his report. Hence we see no reason to disturb the judgment appealed from, unless the referee has committed some error in the reception or rejection of evidence which requires a reversal.

On the trial the defendant testified to the value of certain property which he had upon his farm at the time of the sale upon executions issued upon the judgment upon which this action was brought, and other judgments against the defendant. The plaintiff moved to strike out the evidence as to the value of the property on the ground that the same was sold on execution against the defendant, and that an execution creditor was only chargeable with the amount for which the property sold on the exection, and also on the ground that the evidence was improper and inadmissible. This motion was granted, and the evidence was stricken out. To this the defendant excepted. He then offered to prove the value of the hay sold, the mowing machine, hay, oats, wheat, and straw. This the referee declined to permit, but stated that he would allow the defendant to prove the amount of the property sold, to whom sold, and the amount for which the same was sold. To that ruling the defendant excepted. An examination of the appeal book shows that the witness had testified that he had, at the time of the sale on the place occupied by Burgen, certain articles of property mentioned, giving the value of each, without showing that it was the property levied on by the sheriff. There was no evidence in the case to show that any portion of the property levied upon was removed from the defendant’s premises, except that which was sold by the sheriff, or that the sale was not in all respects fair, and properly conducted by the officer who made it. Under such circumstances, it is difficult to perceive how the judgment upon which this action was brought could have been regarded as satisfied except to the extent of the sum received upon such sale, and applied upon the execution issued thereon, especially as there was evidence which tended to show that the defendant gave directions as to the manner in which the money realized on such sale should be applied. If the property mentioned by the defendant was not levied upon, or levied upon and not sold, nor he deprived of it by the act of the plaintiff’s assignor, it would in no way operate as a satisfaction of the judgment. Peck v. Tiffany, 2 N. Y., 451, 456. Hence evidence of its value was immaterial and improper. As to the value of that sold on execution, if the sale was fairly conducted, the amount for which it was sold was the only sum that could be applied upon the judgment. Moreover, this evidence was given after the defendant had rested, and the referee may well have excluded the evidence upon the ground that the defendant should have given it, if admissible, before resting his case, and that it was not admissible in rebuttal. We find no error in this rnling which would justify us in disturbing the judgment.

Nor do we find any reason to disturb the judgment because of the referee’s refusal to find the defendant’s ninth, fourteenth and sixteenth requests. We think the decision and judgment were sustained by the evidence, and that there were no errors in the rulings to which our attention has been called which would justify a reversal of the judgment.

Judgment affirmed, with costs.

All concur.