text:
    John Brown, App’lt, v. Patrick Fox, Resp’t.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    Textures—Vendor and purchaser.
    A vendor is not entitled a remove a building from land sold, though he reserves the right to do so before the time fixed for the delivery of the deed, where he does not remove it before such time and there is no agreement between him and the purchaser to the effect that it is to be considered as a chattel.
    Appeal from a judgment in favor of defendant, rendered by the justice without a jury.
    Wm. Doll, for app’lt; George S. Wilkes, for resp’t.
   Bischoff, J.

In this action plaintiff sought to replevy a certain building erected upon land of which defendant became owner through a conveyance from one Whelp. From the evidence it appears that Whelp, by contract of date June 15,' 1892, agreed to sell to defendant the premises in question, but reserved the right to remove the building thereon erected before September 12, 1892, which was the day set for the closing of the title. On July 18, 1892, Whelp sold the building to plaintiff, which sale was evidenced by a memorandum in writing, but no provision as to the date of removal was ■ therein contained, nor as to the amount of consideration, which last was expressly stated to rest in verbal agreement. The date of closing the title upon the sale by Whelp to defendant was adjourned to October 19, 1892, and on that day possession of the land and building was given by the former to the latter, who, in explanation of his having given such possession, testified that Brown was required to remove the building before that time. No objection was made to this testimony, and no contrary agreement was shown in behalf of the plaintiff.

We think that the justice’s conclusion in favor of the defendant is to be supported. Prima facie, the building was not a chattel, but became a part of and passed with the freehold. Smith v. Benson, 1 Hill, 178; and while, by express agreement between the owner of the land and the party claiming an erection thereupon as personalty, the legal effect of the annexation may be overcome, and the erection viewed as a chattel, Ford v. Cobb, 20 N. Y. 349, the evidence in this case was distinctly to the effect that, as against Fox, there was no agreement whereby the house was to be taken as in the nature of a chattel if not removed before September 12th, or, at the latest, October 19th (the adjourned date of closing title), nor after such latter date, according to the agreement with Whelp, as testified to by him. The plaintiff’s testimony that defendant had recognized his ownership, and had told him to take his time about removing the house, was directly contradicted by the latter, and upon this simple conflict the justice’s finding concludes. Plaintiff’s assertion of ownership and demand for the alleged chattel being made after the date when title thereto had passed to defendant with the freehold, his action necessarily failed.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Daly, C. J.

license: Public Domain

text:
    James Reilly, Resp’t, v. Hiram Merritt, App’lt.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    Appeal—Proof.
    The evidence, in this case, was held not sufficient to sustain a judgment for plaintiff.
    Appeal from a judgment in favor of plaintiff.

      Canton & Atwater, for app’lt; Samuel Mullen, for resp’t.
   Daly, C. J.

The evidence showed that the plaintiff was a tenant of premises of which defendant was general agent. Plaintiff occupied the store floor, and had there an ice box, an oil tank, and certain grocer’s goods, in cans. While he was absent, a plumber, under defendant’s directions, came to the premises, and, by permission of plaintiff’s wife or his daughter, entered to make certain necessary repairs to the Croton water fixtures, which were leaking. When plaintiff returned he found some of his goods missing, his ice box pulled apart, and his oil tank bursted. He was not able to connect the plumbers with the disappearance of the groceries, but the testimony justified the inference that the ice box and oil tank had been moved by them in getting at the pipes, and it is claimed on his behalf that the judgment of $25 rendered by the justice was compensation for the injuries done to those articles. There was no evidence, however, of the amount of damage inflicted by the plumbers, since there was no proof of what it would cost to repair the articles in question. The plaintiff testified that the ice box cost him $13, and the oil tank $25, three years before the trial, but this was no evidence of the cost of repairs. Nor can we say from the record before us that no part of the damages was awarded by the justice for the loss of the groceries. He admitted proof of their value, under the objection of defendant, although there was not the slightest evidence that defendant was responsible for abstracting them. No damages were allowable for entry upon the plaintiff’s premises, because it was the landlord’s privilege, as well as duty, to make repairs necessary for the fixtures common to the whole house, as in this case. The judgment should be reversed, and a new trial ordered, with costs to appellant, to abide the event.

All concur.


author: Bischoff, J.

text:
    Alvin M. Gage et al., Resp’ts, v. Gustav Lippman et al., App’lts.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    1. Appeal—Case—Certificate.
    In the absence of a certificate in the record of appeal that all the evidence taken upon the trial is thereby presented, the appellate court will confine its examination to the sufficiency of the evidence in the record to support the findings of fact and the foundation provided by such findings, for the conclusion of law, in so far as these questions are presented by the exceptions taken.
    3. Pleading—Adequate remedy at law.
    The defense that plaintiff has an adequate remedy at law is not available in an equitable action, unless pleaded.
    Appeal from a judgment in favor of plaintiffs.

      Louis Levy, for app’lts; Henry S. Bennett, for resp’ts.
   Bischoff, J.

The lease of which cancellation was sought and had was of the third loft of a certain building, to be used by the plaintiffs for the exposai and sale of goods. It was alleged to have been.executed by the plaintiffs, the lessees, upon the express con-' dition that .it should not be of effect until an instrument should be executed by the defendants, the lessors, granting to the plaintiffs an option to occupy a portion of the fifth loft in the same building for storage of stock, both instruments being called for by the terms of a previous oral agreement. Defendants afterwards refused to execute the second instrument, and the plaintiffs repudiated the transaction. Upon the defendants seeking to enforce the terms of the lease, this action was brought.

The grounds of appeal relied upon by the appellants are that the findings of fact made by the learned trial judge are against the weight of the evidence adduced upon the question of the agreement of the parties, and that the plaintiffs had an adequate remedy at law in an action for damages for the breach of the oral .agreement to execute a lease of the portion of the fifth loft, assuming such an agreement to have in fact existed. There being no certificate in the record of the appeal that all the evidence taken upon the trial is thereby presented, we are unable to determine the question of the preponderance of proof, but must confine our examination to the sufficiency of the evidence in the record to support the findings of fact, and the foundation provided by such findings for the conclusions of law, in so far as these questions are presented by che exceptions taken. Aldridge v. Aldridge, 120 N. Y. 614; 31 St. Rep. 948 ; Porter v. Smith, 107 N. Y. 531; 12 St. Rep. 479.

The testimony given on behalf of the plaintiffs amply supports the finding that the agreement of the parties required the execution of a lease of the third loft, and of an instrument granting to the plaintiffs an option to occupy a certain portion of the fifth loft for at least one year, and an equivalent space thereafter for the remainder of the term of the lease ; that the plaintiffs had executed the lease in suit expressly upon the condition that it was not to be operative until the other instrument should be executed and delivered by the defendants, which condition the defendants accepted through their agent; that such instrument was never executed; and that the plaintiffs disaffirmed the entire transaction; but that the defendants insisted upon the performance of the terms of the lease.

The conclusion that the plaintiffs should have judgment, as prayed, for the delivery and cancellation of the lease, and further, enjoining the defendants from enforcing thesame, was a legitimate sequence from the facts thus found.

As to the contention that the plaintiffs had an adequate remedy at law, viewed apart from the effect of the findings made, it is only to be said that the defendants not only failed to plead this defense, which was essential, Ostrander v. Weber, 114 N. Y. 102; 22 St. Rep. 979 ; Town of Mentz v. Cook, 108 N. Y. 507; 13 St. Rep. 845, but actually submitted the case to the equity side of the court for determination, they themselves praying for affirmative equitable relief in the form of a decree against the plaintiffs for specific performance, “and for such further relief as shall be consistent with equity,” Town of Mentz v. Cook, supra.

The exceptions taken by the appellants to rulings upon the trial were not urged upon this appeal. However, upon examination, we fail to discover any prejudicial error presented thereby.

The judgment is affirmed, with costs.

All concnr.


text:
    Edmund S. Whitman et al., App’lts, v. Edwin L. Johnson, Resp’t.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    Appeal—Restitution
    Where, upon an appeal taken from an order denying a motion for a new trial, but not from the judgment, the order is reversed, the reversal order should provide for setting aside the judgment and for restitution of moneys paid under it.
    Settlement of order, reversing an order denying a motion for a new trial.

      Osgood Smith, for pl’ffs; Southard & Fairchild, for def't.
   Daly, C. J.

The plaintiffs appealed from an order denying their motion for a new trial, but not from the judgment dismissing their complaint. The order having been made at a trial term of this court, the appeal from it could be entertained by our general term. Voisin v. Insurance Co., 123 N. Y. 120 ; 33 St. Rep. 160. After hearing argument on the appeal, the general term ordered a new trial. The order entered upon the decision reversed the-judgment, and ordered a new trial, with costs to the appellant to abide the event; and also directed a restitution of the moneys collected under said judgment, being the costs and extra allowance awarded, with interest, and allowed judgment and execution therefor against defendant. The order was subsequently amended-by striking out the provision reversing the judgment, and substituting in place thereof a direction that the order denying plaintiffs' motion for a new trial be reversed, with costs to the appellant to abide the event; and the question as to further resettlement of the order was referred to this general term. The amended order should have also contained a 'provision that the judgment be vacated and set aside, and restitution of' the moneys paid under it made to the plaintiffs, with judgment and execution therefor. While there can, technically, be no reversal of a judgment which has not been appealed from, it must necessarily be vacated and set aside if a new trial be granted, since it is then wholly without foundation; otherwise, if plaintiffs recovered upon the second trial, there would be contrary judgments upon the same issues in the action ; if, indeed, upon the second trial, the plaintiffs would not be embarrassed by a former unreversed adjudication upon the facts m favor of defendant. The Code provides that the entry of final judgment, and the subsequent proceedings to collect or otherwise enforce it, may be stayed by order on a motion for a new trial; and that, where a new trial is granted, the court may direct and enforce restitution as where a judgment is reversed upon appeal. Section 1005. The authority to vacate the judgment if the motion for a new trial is granted is plainly implied in this section, for if the entry of judgment, or the enforcement-of it, may be stayed pending the motion, the judgment is clearly made dependent upon the result of the motion. The express authority in the section for ordering restitution if a new trial is granted implies-that the judgment, if entered and collected pending the motion, is to be set aside. Had the motion for a new trial been granted at the trial termor the special term, the judgment, if already entered, would have been necessarily vacated "as part of the relief upon that motion. Such was the practice in O’Gara v. Kearney, 77 N. Y. 423, which was a case resembling the present in many particulars : “The jury rendered a verdict in favor of the defendant. Upon this verdict judgment was entered dismissing the complaint, and for $125 costs. The costs were voluntarily paid to the defendant’s attorney. The judgment was afterwards, on motion, set aside, on the ground that improper evidence vvaa admitted on the trial.” An order for restitution was made at special term in that case under the authority of section 1292 of the Code, which provides : “ Where a judgment is set aside for any cause upon motion the court may direct and enforce restitution in like manner, with little effect and subject to the same conditions as where a judgment is reversed upon appeal.” Where the general term grants the relief which should have been given at trial term, or special term upon a motion for a new trial, it may, of course, exercise the same power over the judgment possessed by the special term or trial term, and in granting a new trial may vacate the judgment and order restitution. As to the propriety of ordering restitution of the costs of the former trial collected under judgment which is now vacated, there can be little question. The parties should be restored to their original position. If defendant is again successful, and is entitled to the costs of the former trial, he can again tax them and collect them; if he is not (under the terms of the order awarding costs to the appellant to abide the event) en-, titled to the costs of the former trial, Starr Cash Car Co. v. Reinhardt, 56 St. Rep. 404, he should not retain them now, because he cannot have them in any event. It is to be observed also that the judgment includes an extra allowance which necessarily falls with it, and could not be taxed upon the new trial without a new order for allowance. The order of reversal as amended must therefore be further amended and settled by providing that the judgment entered by defendant in this action be vacated and set aside, and that plaintiffs have restitution to the amount collected thereon, and have judgment and execution therefor.

All concur.


text:
    Hugh J. Grant, as Receiver, etc., Resp’t, v. Mart J. MacNutt, App’lt.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    1. Bills and notes—Check—Presentment.
    Where the drawee has no funds of the drawer wherewith to pay the check, presentment and notice of dishonor are not essential in order to charge the drawer; and the same rule properly applies in the case of a partial deficiency of deposit to meet it.
    2. Banks—Clearing-house contract.
    A contract by a bank to pay checks drawn on another bank, presented through the clearing-house, does not impose upon the former bank the same liability in regard to such checks as attaches to the latter bank.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.

      Albridge C. Smith, for pl’ff ; John Delahunty, for def't.
   Bischoff, J.

Defendant drew her check for $450 against her account with the Madison Square Bank on August 8,1893, payable to her own order, and indorsed the same, receving the amount called for thereby from the Hoffman House, to the credit of whose account the check was placed with the Seaboard National Bank, and paid to the latter by the St. Nicholas Bank, on the same day, as clearing house agent for the Madison Square Bank. On the day following,' the check was sent by the St. Nicholas Bank to the Madison Square Bank for collection, but was not presented for payment, owing to the fact that the latter institution- was on that day insolvent, and in the hands of the state banking department. Notice of the fact that the check was unpaid was sent to defendant by the St. Nicholas bank about three weeks thereafter, and, upon her subsequent failure to pay the amount, this action was brought by the plaintiff, as receiver of that bank, and a verdict for the amount claimed was directed at the trial, subject to a review of receptions at the general term.

An objection was made that the complaint did not allege, nor was it proven, that presentment for payment had been made and prompt notice of dishonor given to the defendant, and the point is now presented. In view of the further facts alleged in the complaint and proven at the trial, an allegation and proof of present- , ment and notice were not necessary. A drawer of a check is discharged from liability by reason of the drawee’s default if presentment for payment is delayed beyond the space of one day after its delivery, Railroad Co. v. Collins, 57 N. Y. 641; Kelty v. Bank, 52 Barb. 328; Cawein v. Browinski, 6 Bush, 457 ; Strong v. King, 85 Am. Dec. 336; but, where the drawee suspends payment within the time required for presentment, such presentment and notice of dishonor are not essential in order to charge the drawer. Lovett v. Cornwell, 6 Wend. 370, s. c. affirmed, reported Cromwell v. Lovett, 1 Hall, 64. See, also, Railroad Co. v. Collins, 3 Bans. 29. So, also, where the drawee has no funds of the drawer wherewith to pay the check, Little v. Bank, 2 Hill, 425; Bank v. Broderick, 10 Wend. 304; Murray v. Judah, 6 Cow. 490; Brush v. Barrett, 82 N. Y. 400 ; Franklin v. Vanderpool, 1 Hall, 88 ; 3 Am. & Eng. Enc. Law, p. 212, and cases cited ; Daniel, Neg. Inst. § 1596; and the same rule properly applies in the case of a partial deficiency of deposit to meet it, Daniel, Neg. Inst. § 1597; Eichelberger v. Finley, 7 Har. & J. 381. Upon the day when the check in suit was drawn, the defendant’s account with the Madison Square Bank was credited with but $440.63 (an amount insufficient to meet the check), and that bank had suspended payment within the time allowable to the holder, the St. Nicholas Bank, for presentment. 3 Am. & Eng. Enc. Law, p. 214. Hence the objection was not well founded.

The only other point raised by the defendant, and presented in support of the exception to the denial of the motion for dismissal of the complaint, is that the St. Nicholas Bank, by reason of the contract made with the Madison Square Bank to pay its depositors’ checks when presented at the clearing house, practically stood in the shoes of the latter, and that the most which it could demand from the defendant upon this check would be the difference between her deposit with the Madison Square Bank, and the amount paid. This position is not tenable. The evidence utterly fails to support the assumption that, by the contract between the two banks, the St. Nicholas Bank assumed the relation held by the Madison Square bank to its depositors, or had any claim to funds on deposit with the latter otherwise than as holder of checks drawn against it, which checks in no way effected an assignment to the holder of the depositors’ funds in bank. Duncan v. Berlin, 430 N. Y. 151; Attorney General v. Continental Life Ins. Co., 71 N. Y. 831; Risley v. Bank, 83 N. Y. 324; First National Bank v. Clark, 134 N. Y. 368; 48 St. Rep. 283. The St. Nicholas Bank assumed merely to meet certain calls upon the Madison Square Bank, by honoring checks drawn upon it, and was secured by a •deposit of collateral security, and nothing is found in the relation of the parties which would require the former to relinquish its rights as lawful holder of the checks so received, and look only to this security, which, as a matter of fact, in the present instance, was exhausted upon the day when payment of the check in suit was made. The case of Wheatland v. Pryor, 133 N. Y. 97; 44 St. Rep. 311, relied upon by defendant, fails in any manner to bear upon the question. In so far as it deals with the existence of commercial paper, that case but applies familiar doctrines, with regard to the transfer and ownership of a draft, to a state of facts lacking the remotest connection with the situation before us.

Exceptions overruled, and judgment for plaintiff upon the verdict as directed below, with costs.

All concur.


text:
    Neuchatel Asphalt Company, Limited, App'lt, v. Mayor, Aldermen and Commonalty of the City of New York, Resp’t.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    1. Corporation—Foreign—Certificate.
    A foreign corporation, doing business in this state before the enactment of chap. 687 of 1892, though it fails to procure the certificate within the time limited, may sue on a contract previously made, where it afterwards procures the certificate.
    2. Mechanic’s lien—Expiration.
    A mechanic’s lien is saved by the fact that an action is commenced by another lienor, and the owner and contractor and all other lienors are made parties and served therein, before the expiration of ninety days from its filing.
    Appeal from a judgment, dismissing the complaint.

      Thomas M. North, for app’lt; C. J. G. Hall, for resp’t.
   Daly, C. J.

The plaintiff, a foreign corporation, filed a notice of lien against the premises in question on October 25,1893. It is objected that no lien was thereby effected, because the plaintiff’s contract was not enforceable, owing to non-compliance with the provisions of the general corporation act of 1892, requiring foreign corporations to procure from the secretary of state a certificate that they have, complied with all the requirements of law to authorize them to do business in this state. It is also contended

that, if a valid lien was originally acquired, it was lost Joy failure to bring an action of foreclosure within ninety days after filing of the notice. Consolidation Act, § 1827. The general corporation act, referred to, prohibits a foreign stock corporation, other than a, moneyed corporation, doing business in this state without having procured the certificate referred to; and the section concludes with the provision: “No foreign stock corporation doing business in this state without such certificate shall maintain any action in tins state upon any contract made by it in this state until it shall have procured such certificate.” The plaintiff was doing business in this state when the act was passed,' and made the contract and performed the work upon which defendant’s claim is based in this, city in the year 1893, but did not procure the certificate required by the act until December 4, 1893, which was after- the filing of its lien, but before it attempted to commence an action of foreclosure. Although this contract when made was prohibited by the statute, it was, nevertheless, enforceable by action as soon as. the certificate was procured. The clause quoted undoubtedly refeis to prohibited contracts,—i. e., contracts made while the corporation was doing business without a certificate; for, by its terms it applies to corporations so doing business, and no others. Were it intended to prohibit actions upon contracts untainted by illegality (such as contracts made before the statute), the qualification “ without such certificate,” would have been omitted, and the-^clause would have simply provided that “no foreign .corporation doing business in this state shall maintain any action in this state upon any contract made by it in this state until it shall have procured such certificate.” By qualifying the corporation as one-“doing business in this state without a certificate,” the provision applies only to "corporations engaged in violations of the act, and its only purpose is to afford such corporations an opportunity to make their contracts, otherwise unenforceable, cognizable by the courts of this ctate. By this construction effect is given to every part of the section of the act in question; for, if the last clause were not intended to help contracts that were invalid, it would be mere surplusage; the general prohibition contained in the first part of the enactment would be sufficient to prevent recovery upon contracts made in violation of such prohibition. This construction also relieves the court from the necessity of considering the-point suggested in Murphy Varnish Co. v. Connell, 10 Misc. Rep. 553 ; 65 St. Rep. 817, that the act in question may be in conflict with the constitution of the United States, reserving to congress the regulation of commerce between the states and with foreign nations; for we regard the statute as merely refusing, in certain cases, the use of the courts of this state to foreign corporations until they comply with its laws.

Having procured the certificate of the secretary of state on December 4, 1893, this plaintiff was enabled to maintain an action upon its contract, and to foreclose its lien by action. An attempt to commence such an action was made in January, 1894, but the contractor Matthias' Theriault, under whom plaintiff claims as subcontractor, was not served with the summons in that action until February 7,1894, which was more than ninety days after the filing of the lien. The lien act declares that no lien shall be binding upon the property unless an action be commenced within ninety days from the filing of the same, and a notice of pendency of action be filed with the comptroller. Consolidation Act, § 1827. The same act declares that any claimant who has filed a lien may enforce his claim by a civil action. Section 1829. The party commencing such action must make all parties who have filed claims—the contractor and the city—parties defendant. Section 1830. It is contended against the plaintiff that his failure to serve his summons upon the contractor within ninety days from the filing of his lien was a failure to commence an action within that period, as the contractor was a necessary party and the principal party to the litigation, and that the service upon the city within the prescribed time was not the commencement of the action. If this contention were fair, then it would result that in any case where a lienor plaintiff commenced an action, but failed to serve his summons upon any other lienor, within the ninety days, such plaintiff’s lien would cease to be binding; for the statute makes every claimant a necessary party equally with the city and the contractor. It would seem a reasonable compliance with the statute to hold that an action is commenced if all the necessary parties are included in it, and service upon either the contractor or the owner or holder of the fund claimed is effected within the ninety days; but it is not necessary to rest a decision in favor of this plaintiff upon that construction, as his lien is saved by the fact that an action was commenced by another lienor, and the city and the contractor served therein, before the expiration of ninety days from the filing of this plaintiff’s lien. The statute does not prescribe that each lienor must commence a separate action to foreclose his lien, but that, within ninety days from the filing of it, “an action” shall be commenced; and as all the parties who have filed liens are necessary parties to any such action, and may set forth their claims by answer, and the court is to decide the extent, justice, and priority of the claims of all parties therein (§ 1830), it would seem that any action so commenced is, in effect, an action on behalf of each party entitled when it is so commenced to .maintain an action to enforce his own lien.' Even were the plaintiff in such action to fail therein for want of a lien, the action would not abate, but would be retained to afford the defendants the relief which they were entitled to among themselves. Morgan v. Taylor, 24 St. Rep. 60.

One of the parties filing liens upon this fund under the contract with Theriault was Kulinla, who filed his lien on October 20, 1893, and who commenced an action to foreclose it, and served the city and the contractor within ninety days after that date, and of course within ninety days from the filing of the plaintiff’s lien, which was on October 25, 1893. To that action the plaintiff was a necessary party, made so by statute, and, if omitted, would have to be brought in upon his own application, or that of any other party. He was made a party, and answered. His lien -was therefore enforceable" by him in that action, which was commenced while his lien was binding upon the fund; and when that action was consolidated with his own, and with that of a third lienor, the consolidated action still remained Kuhnla’s action, and plaintiff was entitled to all the benefits which he derived from its timely commencement.

The judgment should therefore be modified so as to provide for the payment out of the fund of the plaintiff’s lien, in the order of priority of its filing, and as so modified, affirmed, with costs of this appeal to the appellant, to be paid out of the fund. McAllister v. Case, 24 St. Rep. 813.

All concur.


text:
    Kate O’Brien, Resp’t, v. Prudential Insurance Company of America, App’lt.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    1. Insurance—Cancellation.
    A provision that the company may cancel a policy without notice unless the premiums are paid within a certain time, requires some affirmative act on the part of the company to effect a cancellation.
    2. Same—Evidence.
    In an action on a life insurance policy, claimed by the company to have been cancelled for nonpayment of premiums; the correspondence between the plaintiff’ attorney and the company in relation to the farmer’s premium receipt book, which had been delivered to the company with the proofs of death, is admissible in evidence to show that the book had been in the possession of the company for a certain length of time, that it was claimed to have contained certain entries, and that when returned the attention of the company was called to the fact that there appeared to be an erasure of such entries.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Wm. O. Campbell, for app’lt; Blackwell Bros., for resp’t.
   Daly, C. J.

The question upon the appeal is one of fact, as to which the jury has found in favor of the plaintiff, upon sufficient evidence. It-is undisputed that the premiums were in arrears for ten weeks on November 23, 1893, when Zahner, the assistant superintendent of the company called on Mrs. O’Brien. He was not the regular collecting agent, but called because the premiums were long in arrears. The company had issued six or more policies on the lives of plaintiff’s family,—these two on her husband’s life, one on her father’s, and others upon other members of the family. Mr. Zahner asked what she could do that week,—if she could settle her father’s that week, or, in consequence of his age, it would be lapsed. She told him to come the following day, and then she settled eight weeks of arrears on her father’s policy, and asked him how much longer she could run on the other policies, to which be answered two or three weeks. Within two weeks, one of the collecting agente, named Pfennig, called, and received five dollars, and receipted for ten weeks’ premiums for her husband’s policy. This was the day before her husband died, and she had no knowledge at the time of the payment that he was in danger of death. Such was the plaintiff’s testimony, and although Zahner denied that he agreed to extend her time on the policies in suit, and testified that he notified her that they would be lapsed, he admitted receiving a part of the arrears on her father’s policy, and that he “ let it go ” without canceling, because she paid within a few weeks; and he admitted that he had authority to do that for the company. There was a dispute as to whether the five dollars paid to Pfennig on the 6th of December was tendered back to her shortly after the death of her husband, or not until March 8, 1894.

There was a fair question for the jury upon the evidence as to whether Zahner had not extended the time of payment of the premiums of these policies for a period which had not expired when the insured died, and as to whether he was not duly authorized to do so. He swore that he had authority to extend the time upon her father’s policy, and the verdict should not be disturbed upon that question. The question of fact was also submitted on the defense that the policies “ were both duly lapsed” for the nonpayment of premiums. Bach policy provides that it shall be void if the premiums are not paid according to its terms, and provides that if, for any reason the premium is not collected by the agent when due, it shall be the duty of the policy-holder, before the said premiums shall be in arrears four weeks, to bring or send said premium to the home office, or to the company’s agent; and, in event of a failure to perform this duty, the company may cancel this policy without notice to any person or persons interested therein. This requires some affirmative act on the part of the company to effect a cancellation of policy. Brady v. Insurance Co., 9 Misc. Rep. 6; 59 St. Rep. 659.

It is claimed by defendant: That cancellation was effected in this case on November 27, 1893, which was before the death of .the insured. That it was effected in the usual course of business in the following manner: A lapsed policy schedule was made out on November 23, 1893, at the company’s office, signed by Pfennig as agent, and Zahner as assistant superintendent, giving a list of six policies, and the “ actual date of last payment shown in policyholder’s receipt book ” as October 23, 1893. That this schedule was sent to the home office of the company, where it was received on November 24, 1893, and a “ Lapse Register,” reciting the same facts as to last date of payment of premium, returned to the agent. Documents bearing all the formal evidence of regularity were produced by defendant to show that this was done; and yet the uncontradicted evidence of the defendant’s collecting agent Pfennig shows that the entry of payment of premium due October 23, 1893, was not written on the policy holder’s receipt book until December 6, 1893,—the date that he received the five dollars from Mrs. O’Brien, and receipted in her book for it. When the policy holder’s book was returned by the company (to whom it was delivered immediately after the death .of the assured), the last entry of payment of premiums appearing in it was for the premium due October 23, 1893. Plaintiff testified that there were three subsequent entries of payments which Pfennig made on it when he received the five dollars on December 6th, and that they were rubbed out. Pfennig’s entries at that time commenced October 13 th, which paid the premi urn due September 11th, and the last entry must have been of December 5th, paying the premium due November 13th. An erasure of the three last entries would leave the last payment as of October 23, 1893,—four weeks prior to the date of the “ Lapsed Schedule” of November 23d,—and thus bring the cancellation apparently within the terms of the four-weeks clause quoted above, though not so in fact, for the next payment would not be due until October 30th, and the four weeks would not be up on November 23d. In view of the evidence, amounting to demonstration, that the defendant’s documents were false, no court would disturb the finding of the jury against the claim that alleged cancellation of the policy was effected before the death of the assured.

The defendant excepted to the admission of the correspondence between the company and the plaintiff’s attorney with respect to his demands for the plaintiff’s premium receipt book, which had been delivered to the company with the proof of death of the insured, and which plaintiff claimed (had been altered by the erasure of the last three entries made by Pfennig. If the letters of plaintiff's attorney were offered as proof of the facts recited therein, they would have been inadmissible so far as defendant’s reply did not admit such facts and they were unsupported by the evidence in the case. Waring v. Telegraph Co. 4 Daly, 233. But the correspondence was material to show that the book had been in the possession of defendant a certain length of time; that, before it was returned, the plaintiff’s attorney claimed that it contained certain entries; and that, when it was returned, he called attention to the fact that there appeared to be an erasure of such entries. This evidence was material and competent to prove the time when the attention of both parties was directed to the condition of the book, and when it was restored to the plaintiff’s possession. As to the statement of fact in the letters that there were apparent erasures, the book itself was produced, and the jury had the best evidence upon that point; and the letters tended to show that the erasures were not made after plaintiff regained possession of it, and nothing was stated in the letters that was not proved by competent evidence, ‘ The material fact stated, that the book originally contained entries of receipts of Pfennig which had been erased, was hardly a matter of dispute-upon the evidence; Pfennig testifying, “ I guess I credited the whole five dollars on that book,” which would have required ten entries of fifty cents each, whereas the book showed but seven; and while he said, “ There are none that are gone,” he reiterated that he gave plaintiff receipts for five dollars on the same book on the same day. It clearly appears, therefore, that the defendant could not have been injuriously affected by the admission of the letters.

Judgment and order affirmed, with costs.

All concur.


author: Pryor, J.

text:
    James B. Smith, App’lt, v. Ingersoll-Sergeant Rock Drill Company, Resp’

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    1. Damages—Nominal award.
    An award of nominal damages for a substantial injury is error.

      % Injunction—Against nominal injury.
    A nominal injury constitutes no title to injunctive relief.
    Plaintiff appeals from all the j udgment except so mucii thereof as awarded costs, and defendant appeals from the whole-judgment.

      Jacob F. Miller, for pl’ff; William L. Turner, for def’t.
   Pryor, J.

On an appeal by both parties, each solicits a new-trial; and, on the record before us, we have no alternative but to accommodate the decision to their desire. The action is to restrain a nuisance, and for damages. The learned trial judge finds as a fact that the nuisance “has materially lessened the beneficial use and enjoyment of plaintiff’s premises, and that it will continue to lessen the beneficial use and enjoyment of plaintiff’s premises;” and, accordingly, he concludes that, as a deduction of law, the plaintiff is entitled to injunctive relief, but he estimates that six cents is an adequate award of damages. Here must be fallacy either in the premise or conclusion. A party is entitled to indemnity commensurate with his injury, and nominal damages is the recompense only of nominal loss. If the sum awarded to plaintiff be sufficient, lie sustained no substantial injury ; if he sustained substantial injury, the amount is insufficient. The dilemma involves error fatal to the judgment. If the plaintiff suffered substantial loss, the compensation afforded him is inadequate. If his injury be unsubstantial, he has no right to an injunction. “The injunction is so dependent upon the damages that the general term could not with propriety reverse the judgment as to damages, and permit it to stand as an injunction.” Gray v. Railroad Co. 128 N. Y. 499, 509; 40 St. Rep. 478 ; Genet v. Canal Co., 122 N. Y. 505, 529; 34 St. Rep. 346; Purdy v. Railroad Co., 36 St. Rep. 43.

The award of nominal damages may not be vindicated on the .ground that the evidence was only of an uncertain and indeterminate amount, because the court found six cents to be the sum to which “ the plaintiff is entitled,” and because, as against a wrongdoer, the injured party is not bound to proof of his exact loss. Wakeman v. Manufacturing Co., 101 N. Y. 205, 216 ; U. S. Trust Co. v. O'Brien, 143 N. Y. 284, 289; 62 St. Rep. 336 ; Drucker v. Railroad Co., 106 N. Y. 157; 8 St. Rep. 599 ; Brush v. Railroad Co., 13 Supp. 908.

Judgment reversed, and new trial ordered, without costs to either party.

All concur.


text:
    Bernard Sheridan, Resp’t, v. Mayor, Aldermen and Commonalty of the City of New York, App’lt.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    .1. -New tri al-t-Exceftions .
    Upon a motion for a new trial on exceptions ordered to be heard at general term in the first instance, the court is restricted to a review of exceptions taken upon, and not after, the trial.
    2. Municipal corporation—Streets.
    A municipal corporation is not relieved from the performance of the duty of keeping its streets and avenues in a condition which renders them reasonably safe for the use of travelers thereon, because others, specially charged with the construction of a park, have left the adjacent streets- and avenues in a condition which is menacing to the life and limb of travelers.
    3. Same.
    If, in view of all the circumstances, the act complained of is such that it may not improbably cause damage of some kind, the doer of the act cannot shelter himself under the defense that the actual consequence is one which rarely follows from that particular act.
    4. Same—Causes.
    When two causes combine to produce an injury to a traveler upon a highway, both of which are in their nature proximate, but one is a culpable defect in the highway and the other is some occurrence for which neither party is responsible, the municipality is liable, provided the injury would not have been sustained but for such defect.
    Motion for a new trial on exceptions, ‘'ordered to be heard at general term in the first instance.

      James P. Niemann, for pl’ff; Theodore Connoly and Terence Farley, for def't.
   Bischoff, J.

Whether the verdict for the plaintiff was in accord with the preponderance of the evidence, or the damages-awarded were excessive or not, are questions which do not arise upon this motion, our authority being here restricted to the review of exceptions taken upon and not after the trial. Code Civ. Proc. sections 992, 1000; Baylies New Trials, pp. 317, 318, and cases there collated ; Bearing v. Pearson, 8 Misc. Rep. 269; 59 St. Rep. 201; Gundlin v. Packet Co., 8 Misc. Rep. 291; 59 St. Rep. 208. We omit special notice of the exception taken to the denial of the defendant’s motion for dismissal of the complaint, made when the plaintiff rested, since any defect in the proof, then extant, was curable by evidence thereafter adduced by either party, Van Houten v. Fleischman, 1 Misc. Rep. 130; 48 St. Rep. 763, and cases there collated; and so proceed, at once, to consider the exception taken to a like motion made when the cause was ready for submission to the jury. At the time of the last-mentioned motion it appeared in evidence that the plaintiff sustained the injury complained of from a fall in the vicinity of the Central Park, Fifth avenue, and 110th street, in the city of New York; that the surface of the park, where it. is immediately adjacent, to the westerly sidewalk of Fifth avenue, between 109th street and 110th street, was from four to live feet below the grade of the avenue; that the sidewalk at this point was supported by a retaining wall, which extended in height to the level of the former, between which and the park there was no railing, guard, or other obstruction; that the sidewalk was thirty-two feet wide, and that extending along the center thereof there was a bluestone path four feet in width; that near its curb the sidewalk was provided with ornamental shade trees, and that also near the curb, and about fifty feet from the place where the plaintiff fell, there was an ordinary street lamp. It also appeared, and remained unchallenged, that the condition of the locality mentioned had been as above described for a long time. In fact, it was conceded that its condi- ■ tian was "never otherwise since the adoption of the locality for park and street uses, and that this condition was known to the plaintiff at the time of the accident was apparent from the fact that he had traveled over this part of the city repeatedly before. It furthermore appeared in evidence that on April 2,1892, between seven and eight o’clock in the evening, the plaintiff, a journeyman plumber, was proceeding homeward from his work, on and along the westerly sidewalk of Fifth avenue, towards 109th street; that the light from the street lamp was obstructed by the trees near by, in consequence of which the immediate place of the accident was left in comparative darkness, and the plaintiff’s vision was obstructed ; that, approaching the scene of his mishap off the blue-stone path to the park side, the plaintiff stumbled against some' obstruction which projected from the earth, was pitched forward towards the park the distance of several steps in his efforts to save himself from a fall, and was precipitated headlong over the retaining wall into the park, thus sustaining the severe injury of which he complained. Upon this state of the facts we are of the opinion that the question of the defendant’s negligence was properly submitted to the jury. It was the defendant’s duty to keep its streets and avenues in a condition which rendered them reasonably safe for the use of travelers thereon, and from the performance of that duty, the defendant was not relieved because others, specially charged with the construction of the park, had left the adjacent streets and avenues in a condition which was menacing to the life and limb of travelers. Actual notice to the defendant of- the condition of the locality was not required to be shown. The condition had, concededly, existed for a long time, and arose from the original construction of the park and avenueiu the locality. Knowledge on the part of the defendant of the condition was therefore fairly inferable from the facts. The plaintiff's injury was a direct and probable result of the defendant’s negligence. True, “that which never happened before, and which in its character is such as not to naturally occur to prudent men, to guard against its happening at all, cannot, when in the course of years it does happen, furnish good ground for a charge of negligence in not foreseeing its possible happening, and guarding against that remote contingency.” Hubbell v. City of Yonkers. 104 N. Y. 434; 5 St. Rep. 730. See, also, Glasier v. Town of Hebron, 131 N. Y. 447 ; 43 St. Rep. 319. But, surely, the risk of injury to a traveler, at nighttime, from a fall into an unguarded pit or excavation, or down an unguarded declivity, adjacent to an ill lighted and much-frequented street of a populous city, is patent to every one; and where, therefore, the risk of injury to others, from the omission of ordinary precaution, is apparent, the fact that the precise manner in which an injury results was not within the bounds of reasonable apprehension does not operate to relieve the person omitting the precaution from the imputation of negligence. The law, as we understand it to be, is that if, in view of all the circumstances, the act complained of was such that “it might not improbably cause damage of some kind, the doer of the act cannot shelter himself under the defense that the actual consequence was one which rarely follows from that particular act” See note, p. 810, to Gilson v. Canal Co., 36 Am. St. Rep. 802, and cases there collated. Indeed, in very few cases, if ever, would responsibility for the omission of ordinary precaution against the risk of injury to others attach, if such responsibility were to depend,' in each instance of resulting injury, upon the presénce of the reasonable ability of the person guilty of the omission to apprehend the particular occurrence which led to the injury from a menacing •danger. “Where there is danger, peril, risk of a particular injury, which actually occurs, we must surely say that it is the usual, or- . dinary, natural, and probable result of the act exposing the person or thing injured to the danger and peril.” West v. Ward, 42 N. W. 309.

Conceding the obstruction in the sidewalk against which the plaintiff stumbled to have been a cause which led to his injury, . ■and for the presence of which the defendant should not be held to answer, it remains that the defendant’s neglect to provide a means ■of avoiding injury to travelers from a fall down the declivity adjacent to the sidewalk was efficient in producing the result of his fall to the plaintiff; and “when two causes combine to produce an injury to a traveler upon a highway, both of which are in their nature proximate,—the one being a culpable defect in the highway, and the other some occurrence for which neither party is responsible,—the municipality is liable, provided the injury would not have'been sustained but for such defect.” Ring v. City of Cohoes, 77 N. Y. 83, 88. The plaintiff’s injury was directly sustained from his fall into the park. It cannot be said, as a matter -of law, that he would have sustained any injury whatever from his -collision with the obstruction in the sidewalk alone. The question, therefore, which of the two causes present was proximate and efficient cause of the 'injury sustained, was, under the circumstances, one of fact, the solution of which was for the jury. Van Houten v. Fleischman, 1 Misc. Rep. 130, 135; 48 St. Rep. 763, and cases there collated; affirmed 142 N. Y. 624: 60 St. Rep. 867.

An exception was taken to the refusal of the court to charge the jury, as requested by the defendant’s counsel, that, in deviating from the bluestone path, the plaintiff was guilty of contributory negligence, which precluded his recovery in this action. The request was -obviously objectionable, in that it sought to eliminate from the jury’s consideration that the plaintiff may not have knowingly or volunarily deviated from the path. It is to be borne in mind that the evidence showed the locality to have been obscured by nightfall at the time. The exceptions present no error, for the reasons stated. They are therefore severally overruled, and the defendant’s motion for a new trial is denied, with costs. The plaintiff has leave to enter judgment upon the verdict.

All concur.


text:
    David Boyd, Resp’t, v. Robert Boyd et al., App’lts, et al., Def’t.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    Trial—J tjry—W aiver.
    A party waives lxis right to a jury trial by noticing the cause for an equity term, and it is discretionary with the court to deny a subsequent application for a trial of all or any of the issues by a jury.
    Appeal from an order, denying a motion to strike the cause from the equity calendar, and to send it to the trial term for trial by jury, or to show cause why one or more of the issues should not be framed for trial, or why all the issues should not be so tried, or why such of the alleged causes of action as are legal in their nature should not be tried by a jury.

      Johnston & Johnston (Edward W. S. Johnston, of counsel), for app’lts; Henry Daily, Jr., for resp’t.
   Daly, C. J.

The action was brought to recover possession of premises on Elm and Pearl streets in this city, formerly owned by Robert Boyd, and sold under execution against him to one Brit-ton, and thereafter redeemed by Samuel Boyd, another judgment creditor, to whom the sheriff issued a certificate, and who became entitled to a deed, but died before receiving it, leaving the plaintiff his only heir at law, to whom letters of administration upon his estate were issued. After the death of Samuel Boyd, the sheriff, upon production to him by the other defendants of an alleged forged assignment of said certificate, executed a deed of the premises to the defendant Carberry, who conveyed them to the defendant Robert Boyd, the husband of Elise Boyd, who is now in possession, claiming to own the premises in fee under the alleged fraudulent conveyances. As incidental to the recovery of the premises the plaintiff asks that the alleged forged assignment of the sheriff’s certificate, and the deed delivered in pursuance thereof, and the conveyances by which Robert Boyd holds the premises be adjudged fraudulent and void; that the sheriff make a conveyance to the plaintiff, as administrator of Samuel Boyd, deceased, in trust for himself, as his heir at law, and that the other defendants release and convey to him any and all claim, right, title, and interest to the premises and the said certificate. This is, in substance, an action to recover the possession of real property, and is therefore an action of ejectment as defined by the Code. “The words ‘an action of ejectment’ [refers] to an action to recover the immediate possession of real property.” Section 3343, subd. 20. And the first question is whether the action may be maintained in this form by one who has an equitable title only. Ordinarily, the action is by one who has the legal title as well as-the immediate right of possession; but this is so as against a stranger in possession, who is no party to the transaction which forms the basis of the plaintiff’s equity. In such a case the plaintiff would first be compelled, in an action in equity against the proper parties, to establish his right to procure his deed, and then,, having the legal -title, to maintain his action of ejectment; but, where all the parties are before the court, the equitable as well as the legal relief can be awarded in the same action. Peck v. Newton, 46 Barb. 173. In an action of ejectment, under the Code, the plaintiff may attack for fraud the deed under which the plaintiff claims title. Phillips v. Gorham, 17 N. Y. 270. In that case the plaintiff was the heir at law of the grantor, and vacating the deed would vest him with the legal title. In this cáse the plaintiff, if he establishes the forgery of the assignment of the sheriff’s certificate, and avoids the deeds made on the faith of it, must nevertheless procure a deed from the sheriff to himself before he is vested with the legal title. But, inasmuch as a necessary part of the relief to which he would be entitled against the defendants would be a judgment excluding them from any interest in the premises under such deeds, and their whole title thereunder would therefore be determined in this action, it would be a useless formality to require him to prosecute another action against any of them to recover possession. The plaintiff’s legal title against all the parties-will be established in this action, and his right to possession ensues therefrom.

As the action is, therefore, in substance, to recover the possession of real property, and is an action of ejectment, the defendants would be entitled to a jury trial under the Code, which provides that an action of ejectment must be tried by a jury. Section 968. Parties defending in ejectment were always entitled to a jury trial as a matter of right, and it matters not how their title is attacked, whether upon equitable or legal grounds. Though not in form an action of ejectment, yet, if it is so in substance, the defendants are entitled to a trial by jury. Prayer for equitable relief does not affect the right. New York Life Ins. & Trust Co. v. Mayor, etc., of City of New York, 6 St. Rep. 656. The verdict of the jury for the plaintiff finds all the facts essential to the right of possession, as well as the right to the equitable relief demanded, and he can apply for the proper judgment upon the verdict. It is suggested that no judgment awarding possession to the defendants can be granted in this action, although prayed for, because it is not technically an action of ejectment, and therefore defendants are not deprived of any substantial right by being denied a jury trial of the issues therein; and that they will have their trial by jury when the plaintiff, having secured his deed from the sheriff upon the judgment in this action, shall afterwards institute his action of ejectment. But of what avail will a jury trial be in such a case? -The defendants will be concluded by the judgment in this action upon the whole dispute, and the action of ejectment, as before observed, will be a mere formality. If, before they are deprived of possession, defendants’ right must be determined by a jury, as the law seems to intend, they must have their jury in this action or never. Ho case cited by respondents establishes that an action which is in substance to recover possession of real property can be so framed as to give a court of equity exclusive jurisdiction, and deprive a defendant of his right to a jury trial. Actions by judgment creditors to set aside fraudulent transfers of the debtor’s property are not in point, as between a grantor and grantee the title of the latter is not affected in such actions, which are only brought to enable the creditor to collect his judgment out of the property. Hor is equitable jurisdiction, in actions in form or in substance for specific performance, or to set aside conveyances as between .grantor and grantee, to be urged against this view. They were always of equitable cognizance. The right to recover here is based upon superior title, and whether it is to be established upon equitable grounds or not cannot affect defendants’ right to a trial by jury. But the defendants may waive a jury trial, though entitled to it as a matter of right. Code, § 1009. He may waive it in other ways than those specified in that section. “ The provision is not exclusive, and the same effect may be given to any evidence, either of conduct or acquiescence by the party, which in other cases would require a conclusion that a right designed for his benefit had been waived.” Mackellar v. Rogers, 109 N. Y. 468 ; 16 St. Rep. 406. In the case cited the waiver was evidenced by both parties noticing the issues for trial at a special term, and it was held that the act of the defendant in so noticing the issues at a court of which a jury forms no part was inconsistent with any intent to take advantage of the right to a jury trial, and that by his notice the defendant must be held to have consented to a trial before the court, and without a jury. In this case both parties noticed the cause for the October equity term, 1894, and when it was reached it was marked “Ready,” and passed from day to day, being finally set down for trial on October 25th, when it was marked off on defendants’ motion for the illness of their attorney. An application for a jury trial, or the framing of issues for a jury, was made at the same term before the judge presiding in equity, and was denied. The order denying such motion was entered by consent. In Hovember defendants served a notice stating that their notice of trial for October equity term was withdrawn. But this attempted withdrawal was ineffectual, having been given after the commencement of the term, and after the parties had appeared in court, and the cause had been marked “Ready.” The defendant plainly waived his right to a jury trial by noticing the cause for the equity term, and it was discretionary, therefore, with the court to deny the application for a trial of all or any of the issues by a jury. The cause will go upon the equity calendar, and be tried by the court without a jury, unless the judge presiding shall deem it proper, in his discretion, to impanel a jury for the trial of the issues. Should he determine, in his discretion, that such a course would be proper, the trial by j urv may be had immediately before him, and plaintiff would not be prejudiced by delay. Although this order must be affirmed on the ground that a jury trial has been waived, and the order appealed from was discretionary with the court, it seems proper to express the foregoing views concerning the scope of this action, and the relief to which the plaintiff is entitled in it, for that question will come before the court, no matter how the action is tried. It would seem that the fullest relief can be awarded the plaintiff under the pleadings, including all that he would obtain by the ordinary action of ejectment, if he succeeds in establishing his right to the deed from the sheriff Order appealed from affirmed, with costs and disbursements of appeal.

All concur.


text:
    Olga J. C. Soltau, as Administratrix, etc., Resp’t, v. Goodyear Vulcanite Company, App’lt.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    1. Contract—Breach.
    The vendor is absolved from any duty of further performance by the definite and unretracted refusal in advance of the purchaser to perform the contract.
    S. Principal and agent—Revocation.
    Upon the death of the principal, no notice is necessary to relieve his estate from liability, even on contracts into which the agent had entered with third persons who were ignorant of his death.
    ■ Motion for a new trial on exceptions, ordered to be heard at general term,in the first instance.

      George M. Pinney, for pl’ff; William H. Hamilton, for deft
   Bischoff, J.

The plaintiff’s cause of action was admitted by the pleadings, and the issue upon the trial was confined to the defendant’s counterclaim for breach of a certain contract for the sale of goods to the defendant by plaintiff’s intestate, Eobert Soltau.

The contract was as follows :

“New York, May 19th, '1892.
“Sold to the Goodyear Vulcanite Go., for account of Mr. Eobert Soltau, 10 tons (about 22,000 lbs.) G. S. Borneo rubber, of the usual grade of this mark, at 29£c. per lb., net cash, payable half on August 2, 1892, and half on Sept. 2, 1892 ; rubber to be delivered, half during last half of June, and half during the last half of August. De Long, Betts & Co., Brokers, &e.”

No more than twenty-five baskets (5,754 pounds) of the rubber contracted for were delivered, and twenty-three baskets were subsequently offered by the vendor, Soltau, to defendant (in all about 10,000 pounds), and these latter were refused.

The circumstances attending this delivery and offer, and the attitude of the parties, appear from the following correspondence, received in evidence:

“June 28th, 1892.
“Goodyear Vulcanite Co., 353 Broadway, City—-Dear Sirs: I have advices of 25 baskets G. S. Borneo, a\c of your contract of May 19th, for 10 tons. These goods are due any day. Please send shipping instructions. Shall I notify Mr. Corfield to be on hand when weighing? [Etc., as to other matters.]
“Yours, truly, Robert Soltau,
“Betts.”
“Morrisville, Pa., July 1st, 1892.
“Robert Soltau, Esq., 15 Cedar Street, City—Dear Sir: In reply to your memod. of the 28th past, you surely know that no shipping directions are required, as all rubber goes to our works. Our weigher has instructions, and requires no special. [Further deals with other matters.]
“Yours, truly, The Goodyear Vulcanite Co.,
“S. S. Sonneborn, Treas.”
“New York, July 7th, 1892.
“Goodyear Vulcanite Co., City—Dear Sir : Inclosed I beg to hand you bill for 25 baskets rubber, on a | c of your contract with me. These goods were on the way to your factory when I received word from Messrs. De Long, Betts & Co., yesterday, that you did not want them shipped, and I could not recall them then.
“Very truly, yours, Robert Soltau.”

The bill sent with the above provided for payment August 2d, according to the terms of the contract. In answer the defendant sent the following:

“ New York, July 8th, 1892.
“ Mr. Robert Soltau, City—Dear Sir : We are in receipt of your yesterday’s favor with invoice inclosed for twenty-five baskets of Borneo, which, as you are well aware, was not delivered according to contract; and, while our factory is closed for repairs the better part of this month, we must ask you to mark the bill, if you wish us to keep it, Sept. 2d, instead of August 2d. On the other hand, it would be agreeable to us, if you have other use for the rubber, to return it to you.
“ Yours truly, Goodyear Vulcanite Co.,
“S. S. Sonneborn, Treas.”

In reply, under date of July 8th, the plaintiff's intestate wrote:

“ Dear Sirs: In reply to yours of 8th inst., while not entering too far upon the conditions of the contract, I wrote you on June 28, and have your reply that the goods were to be shipped as usual, and nothing was said about contract. When I rec’d word from Messrs. Delong, Betts & Co., the goods were on the way. If you refuse to receive these goods, it will cancel the whole contract, and you may upon this condition return the twenty-five baskets.”

Under date of July 13th, the defendant replied :

“ We own your favor of the 8th inst., and in reply would state that we decline to entertain your proposition of canceling the contract bv taking back the twenty-five baskets of Borneo. We have delayed answering your letter, as we preferred to fully consider the matter and advise ourselves on the subject. The contract we had with you speaks for itself, and we shall hold you responsible for its strict performance. We are, however, ready to carry out our proposition of the 8th inst”

Of the same date, from plaintiff’s intestate, in reply:

Yours of the 13th at hand. I understood from your previous letters that you wanted to return the twenty-five packages rubber lately shipped to you, and I agreed to this, and am waiting for them, and would like to know if you are going to return them or not. If your factory is not closed, you certainly knew this when I notified you that I had twenty-five baskets for you. Your answer indicated to ship them, which I did. As for changing the contract, I cannot do it. Either you take the goods as per contract, and as they arrive, or, if you wish, return the twenty-five baskets, and cancel the. sale. * * * I would like to know positively what you are going to do in regard to the twenty-five baskets, as your delay i@ causing me a loss,” etc.

Erom defendant, July 14th:

“ We are in receipt of your yesterday’s favor, and confirm for the third and last time that we are ready to return the twenty-five baskets of rubber, but not with the condition that we cancel the contract, which we absolutely decline to do. IE you wish to receive this rubber without conditions, we shall be glad to return it to you as soon as we hear from you.”

To which plaintiff’s intestate replied, July 15th :

“ Yours of 14th inst. at hand. I will not receive the twenty-five baskets unless upon the conditions that the contract is canceled, as I would be at a loss were I to take them back now, and tender them to some one else. I therefore return the bill to you for them.”

The next letter sent in the course of this correspondence follows :

New York, July 18th, 1892.
“ Goodyear Vulcanite Go., City—Dear Sirs: I have notice of shipment of twenty-three baskets G. S. Borneo rubber, which is due here about the 20th inst. As no shipping instructions are necessary, I shall ship this to your factory, as usual.
“ Yours truly, Robert Soltau,
“ P. T. BettS.”

This letter was returned to Mr. Soltau by defendant, bearing the statement:

“ Will only accept the above payable Sept. 2d.
“ Goodyear Vulcanite Co.,” etc.

Upon July 21st the defendant wrote : ' -

Having received no correct bill from you, we have returned to you the twenty-five baskets of Borneo rubber. There seems nothing left to us but to adhere strictly to the contract.”

■ As a matter of fact the rubber was never returned, and it appeared that on the 21st of July the vendor’s agent, Betts, had acceded to the proposition of defendant, and had made the bill payable September 2, in ignorance of the fact that Mr. Soltau had died on the 19th. Upon learning of this fact, Betts wrote to defendant, under date of July 26th, informing it of the death and the consequent nullity of his act after the- agency had terminated. It was admitted that the defendant’s damage resulting from the non-delivery of the rubber called for by the contract was as claimed. Upon the trial a verdict was directed for the plaintiff, and the defendants exceptions presenting the point as to the correctness of the ruling disallowing the counterclaim, and refusing a submission to the jury of the issue claimed to be raised by the evidence given in its support, are before us for review in the first instance.

The determination of the court at trial term proceeded upon the ground that the defendant, and not Soltau was first in fault, find that, by refusing to perform the contract according to its terms as to payment, the former committed a breach which entitled the latter to abandon further performance. It was held by the learned judge that the defendant could not now urge the vendor’s default of strict delivery under the contract, in that by its answer of July 1st to the vendor’s letter of June 28th, with no mention of the fact that the time for delivery had expired, it had waived such delivery during the last half of June, and, furthermore,, had acepted and used the goods delivered; ’that therefore it could not avail itself of the claim that there was in that regard a breach upon the part of the vendor. An extension of time for the performance of a contract operates as a waiver of forfeiture for delay, Gallagher v. Nichols, 60 N. Y. 438; yet knowledge of the facts constituting the forfeiture, is essential. Robertson v. Insurance Co., 88 N. Y. 545; People v. Connor, 46 Barb. 333. A party to a contract will be estopped from asserting the other party’s default where he has induced such party to act upon the reasonable belief that he will waive such default, and the party so acting has been misled by his reliance upon that belief (7 Am. & Eng. Enc. Law, p. 38, and cases cited); but the basis of such an estoppel is an action induced upon the part of the party seeking to avail of it. People v. Bank of North America, 75 N. Y. 560; Dezell v. Odell, 3 Hill, 215. It would, perhaps, seem that from the evidence in this case the jury might have found facts sufficient to support an inference that the defendant’s agent, Sonneborn, when writing on July 1st from Morrisville, Pa., in answer to Soltau’s letter of June 28th, addressed to defendant’s Hew York office, was acting Under a mistaken assumption of fact that the goods had been delivered in Hew York before the end of June. See Robertson v. Insurance Co.; supra. Ho agreed place of delivery was specified in the contract, and in such a casé it is to be assumed that the goods are to be at the buyer’s" disposal at the place where they are sold, in the absence of circumstances leading to an inference of a contrary intent. 21 Am. & Eng. Enc. Law, p. 526, and cases cited. Hor was the vendor induced by this letter to forego delivery within the time required by the contract, since it was not received until after that period had elapsed, and, furthermore, there was no proof that he had the capacity to perform within that time. Eddy v. Davis, 116 N. Y. 247; 26 St. Rep. 701; Nelson v. Plimpton Co., 55 N. Y. 484; Lawrence v. Miller, 86 Id. 137.

But, assuming that there was a question for the jury upon the issue of the waiver of June delivery, there is another' question in the case which, if it be determined, as matter of law, adversely to the defendant, necessarily renders this prior question of fact immaterial. The question relates to the defendant’s acceptance and retention of the goods delivered after the lapse of the agreed time for delivery, and, we think, calls for an answer which fully supports the conclusion reached below. The defendant, assuming a default upon the part of Soltau, took the position that the goods • should be returned, and the latter charged with a breach of the contract, the damages for which breach might be lessened, by his subsequent deliveries of rubber,—a position consistent with defendant’s legal rights. But, unfortunately for its present contention, this position was not maintained. It offered to retain the rubber upon condition that payment therefor under the contract should be deferred to the last period of payment for goods to be subsequently delivered, and refused to accept other goods of the earlier delivery except upon the same terms. To this Soltau did accede, but insisted that a return of the goods would cancel the contract, and claimed payment according to its terms if the rubber were retained by defendant. Assuming the fact of his previous default, his claim that a return of the goods would cancel the contract was legally unsupported, and defendant's right to return them, with no loss of its existing remedy upon the contract, unaffected. The return might, in view of Soltau’s position, have merely put him further in default, but the fact remains that the defendant, still insisting that no payment on August 2d, as called for by the contract, would be made, continued to retain the goods thus tardily delivered, and at no time returned them. By this the vendor’s default was waived. Bock v. Healy, 8 Daly, 156; Baldwin v. Farnsworth, 10 Me. 414.

The objection to the date of delivery, as reiterated by defendant in its letters, is not to affect the significance of its continued retention of the goods; and its definite and unretracted assertion of a determination to refuse payment on August 2d must be taken as a justification for the vendor’s abandonment of further performance. ■ As was said in the case of. Chapman v. Morton, 11 Mees. & W. 534, by Lord Ajbinger, C. B.:

“We must judge of men’s intentions by their acts, and not by expressions in letters which are contrary to their acts. If the defendant intended to renounce the contract, he ought to have given the plaintiff distinct notice at once that he repudiated the goods. * * * Instead of taking this course, the defendant has exposed ' himself to the imputation of playing fast and loose; declaring in his letters that he will not accept the goods, but at the same time preventing the plaintiffs from dealing with them as theirs.”

By reason of the defendant's definite and concededly unretracted refusal in advance to perform the contract, Soltau was absolved from any duty of further performance Shaw v. Insurance Co., 69 N. Y. 286; Monroe v. Reynolds, 47 Barb. 574; and the defendant being charged with the first fault, his abandonment of the contracni t its entirety laid him open to no liability for a failure to make delivery of the second lot of rubber, as called for during the last half of August, assuming the contract to have been in its nature divisible. Pope v. Proter, 102 N. Y. 366.

As to the effect of the letter sent by the agent, Betts, on July 21st (two days after the death of Soltau), acquiescing in the extension of payment proposed by defendant, it can avail the defendant nothing. While, in the case of a mere revocation of authority in fact, notice is required to be given by the principal in order that he may not be bound should the agent continue in his usual course of dealing in transactions wherein he had theretofore been recognized as such by all parties, Barkley v. Railroad Co., 71 N. Y. 205 ; McNeilly v. Insurance Co., 66 id. 23; Glaflin v. Lenheim, id. 301, yet, in the case of the termination of an agency, when not coupled with an interest, by the death of the principal, the question is determined upon different principles. The rule at common law which determines the authority of an agent by the death of his principal is well settled, and no notice is necessary to relieve the estate of the principal of responsibility, even no contracts in which the agent had entered with third persons who were ignorant of his death. Those who deal with an agent are held to assume the risk that his authority may be terminated by death without notice to them. Weber v. Bridgman, 113 N. Y. 605; 23 St. Rep. 674.

The conclusion is that plaintiff’s intestate was not chargeable with a breach of the contract, upon the evidence adduced, and the direction of a verdict in favor of the plaintiff upon her admitted cause of action was proper.

Exceptions overruled, and judgment for plaintiff as directed below.

All concur.


author: Bradley, J.

text:
    Mary J. Linneman Resp’t, v. Charles E. Bieber et al., App'lts.

      (Supreme Court, General Term Fifth Department,

      Filed April 12, 1895.)

    1. Mechanic’s lien—Mote.
    The right to make a mechanic’s lien available is not lost or defeated by taking a note, payable by the debtor before the time to enforce the lien by action expires.
    2. Same—Transfer.
    A contractor, after assigning anote taken by him for the amount due, may file his notice of lien and assign the lien to the holder of the note.
    3. Same—Setting aside deed.
    In an action to foreclose a mechanic’s lien, a conveyance of the premises before the lien was filed, but after the work was performed, may be set aside as in fraud of creditors, unless the grantee is a purchaser for a valuable consideration and without notice of his grantor’s fraudulent intent.
    Appeal from a judgment in favor of plaintiff.

      Edward C. Randall, for app’lts; Stone & Stone, for resp’t.
   Bradley, J.

The purpose of the action was to foreclose a mechanic’s lien on certain premises on Michigan street, in the city of Buffalo, for materials and work employed there pursuant to contract with Charles E. Bieber, and to set aside as fraudulent a conveyance of the premises made by him to his wife, the defendant Mary J. Bieber. The contract with Mr. Bieber to furnish the materials and erect the building was made and performed by John E. Linneman, and the price agreed upon therefor was $3,508. In the outset it was necessary to make provision for funds to enable Bieber to complete the payment for the lot, and to make payment" to Linneman. This was done by a $6,000 mortgage made by Bieber and wife to the German Bank. Thereupon, with the proceeds of a note made by one of them, indorsed by the other and Linneman, and discounted by the bank, the land was paid for. Afterwards, on May 12,1893, Bieber's note to Linneman for $1,000 was discounted by the bank, and the proceeds placed to his credit; and on the 1st of June following another note by Bieber to him for $2,000 was discounted at same bank, and the proceeds placed to his credit. So far there is no controversy about the tacts. The notice of lien was filed October 10, 1893. The referee found that there was then due to Linneman for work arid materials done and furnished by him upon that lot $1,256.08. This is disputed by the defendants, and they insist that the payments before mentioned reduced the amount due Linneman to $508; and such would be the fact if the contract price included the entire amount of the claim, and if the entire sum of $3,000 was applicable to it. But the referee has found that Linneman did some other work on the lot in removing a building from the front to the rear of it, and that such services were worth $123.08. This was not within the terms of the contract, but may be deemed to have been necessary to the performance of it and there is some evidence in support of that finding and the allowance of that sum to Linneman. The referee found that, out of the proceeds of those two notes so placed to his credit, Linneman paid to and for Bieber $625, leaving a balance of $1,256.08 due him for what he did upon the Michigan street lot. This conclusion of fact, although not required, was permitted by the evidence, and that is here treated as the situation when the work was completed. There were some other matters of account between Linneman and Bieber; and on July 28,1893, the latter gave Linneman his note of that date for $1,700, payable to his order six months after its date. Linneman then gave his receipt to Bieber to the effect that he had received that amount on account of settlement of all matters open between them, including full settlement of all sums due or to grow due for work and materials on the Michigan street store, with the stipulation added that he would hold ‘Bieber harmless with respect to any liens which might be filed against that store, and satisfy and discharge any lien that should be filed against it; and then followed the statement that “ this payment is not in full settlement of the accounts between us, said accounts remaining to be adjusted finally.” Immediately after this note was given Linneman indorsed and transferred it to his wife, the plaintiff.

It is urged that this note was made and taken as payment and in satisfaction of the claim for work, etc., on the Michigan street lot. There is some force in that contention, in view of what appears in the receipt, and of the fact that the work on that lot was not then entirely completed. But the referee found that the note was not given or accepted as payment, of that amount, and the circumstances go in support of that conclusion. The right to make a mechanic’s lien available is not lost or defeated by taking a note payable by the debtor before the time to enforce the lien by action expires. Miller v. Moore, 1 E. D. Smith, 741; Althause v. Warren, 2 id. 657. As.the note was held by the plaintiff at the time the notice of lien was filed by John E. Linneman, it is contended that no lien was effectually created. It would have been futile if the note had been taken in satisfaction of the debt, and such would have been the effect if he had then ceased to have any relation to the note, because he then would have no interest to protect. Nor could he enforce the lien without relieving the debtor from liability arising from the making of the noté and upon it. Teaz v. Chrystie, id. 621; 2 Abb. Pr. 109. Mr. Linneman was contingently liable as indorser of the note, having the right at its maturity, on default in payment by the maker, to take up and hold it against him. The agreement before mentioned, to indemnify Bieber against liens, and to discharge any which should be put upon the property, evidently had relation only to the assertion of liens by others than the contractor, Linneman, as the note to him was intended to cover the full amount remaining unpaid for work and materials which he undertook to supply to complete the building upon that lot. Mr. Linneman did not repossess himself of the note, and he could not until, he did so institute proceedings in his name to enforce the lien. But before the note became due, and on January 8,1894, he assigned to the plaintiff, who held the note, the mechanic’s lien which he had created by filing the notice in October, 1893, the cause of action on which it was founded, and all moneys derivable from it. This lien was security for the payment of the debt, and for his protection against liability to pay the note, which relation contingently existed when the lien was filed. Our attention is called to no reason why he could not transfer it with the claim upon which it was founded, as was done by him. And afterwards, after the maturity of the note, and within due time, the plaintiff brought this action to foreclose the lien. Upon the trial the note was delivered to the defendant Bieber, by whom it was made. By the action the plaintiff seeks priority over a deed of conveyance of the premises made by the defendant Bieber to the defendant Bieber, his wife, on July 10, 1893, on the alleged ground that it was made in fraud of the creditors of the grantor. No question as to the remedy on such ground is specifically raised; and. such relief is here treated as available in an action to foreclose a mechanic’s lien. Gross v. Daly, 5 Daly, 540; Tisdale v. Moore, 8 Hun, 19. The conveyance was recorded eighteen days after it bears date, and on the same day that Bieber made his note to Linneman. Whether or not the conveyance by Bieber to his wife was made with the intent to delay or defraud his creditors was, upon the evidence, a question of fact. The business relations between him and his wife were the subject of the testimony of Mr. Bieber, which was to the effect that the conveyance was made on account of his indebtedness to her. The referee, however, found that the deed was not made to her in good faith, but for the purpose of hindering and delaying Linneman in the collection of the amount due or to become due on his contract for work, etc., and was therefore void as to him and the plaintiff.

It is urged upon the part of the plaintiff that as the finding of the referee does not impute to Mrs. Bieber any want of good faith in taking the conveyance, or any failure of consideration for its support, the conclusion that the deed was ineffectual as against Linneman was not warranted. The proposition is that a conveyance of property, with intent on the part of the grantor to defraud his creditors does not as to them defeat the title of the grantee if he is a purchaser in good faith for a valuable consideration. Zoeller v. Riley, 100 N. Y. 102. The statute provides that a conveyance made with intent to hinder, delay, or defraud creditors shall be void. 2 Rev. St. 137, § 1. But that such provision shall not be construed in any manner to impair the title of a purchaser for a valuable consideration, unless it shall appear that such purchaser had previous notice of the fraudulent intent of his grantor. Id. § 5. The fact, as found by the referee, is all that is requisite, within the statute, to render the con veyance invalid as against the creditor. The burden was upon the purchaser to relieve herself from the effect of the fraudulent intent of her grantor, by proving that she was a purchaser for a valuable consideration. Starin v. Kelly, 88 N. Y. 418. The referee did not find that she was a purchaser for a valuable consideration, nor that she did net have previous notice of the fraudulent intent of her husband. Mrs. Bieber was not a witness on the trial. The relation of her husband to the controversy rendered the credibility of his testimony a matter for the consideration of the referee. In view of that fact, and upon all the evidence bearing on the subject, the conclusion of the referee seems to have been permitted and supported. Other questions raised require no expression of consideration. There was no error to the prejudice of the defendants in the rulings at the trial, or in the findings or refusals to find as requested. The judgment should be affirmed.

All concur.


author: Dwight, P. J.

text:
    Simeon J. Weaver et al., Resp’ts, v. Henry H. Brydges, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    1. Appeal—Appealable order.
    An order, made by a county judge, adjudging a judgment debtor guilty of contempt in refusing to appear for examination in supplementary proceedings on execution issued out of the county court, is appealable.
    3. Supplementary proceedings—Adjournment.
    The referee, in supplementary proceeding, has power to order an adjournment to a place other than that specified in the order directing the examination.

      Appeal from an order adjudging defendant guilty of contempt, in failing to appear before the referee to be examined touching his property.

      T. L. Hurlburt, for app’lt; E. L. Adams, for resp’ts.
   Dwight, P. J.

The order was made, by a judge out of court, in the course of proceedings supplementary to an execution issued out of the county court of Monroe county on a judgment recovered in the municipal court of the city of Rochester, of which a transcript had been filed in the office of the county clerk. The order adjudged the defendant in contempt for neglecting and refusing to ■appear, as directed by the referee, pursuant to.an adjournment of the proceedings for his examination as a judgment debtor. The order for his examination, which was made by the same judge, required him to attend and be examined concerning his property before the referee, at his office, in Fairport, on a day and at an hour named, “ and for that purpose to appear before the said referee from time to time as he shall direct and appoint.” Fairport is in Monroe county, about ten miles by rail from Rochester, and is the home of the judgment debtor and -his attorney, as well as of the referee. The defendant failed to appear at the time and place named in the order, but excuse was made for him, and an adjournment was taken to a subsequent day and hour, at the same place. On the adjourned day the defendant appeared, and his examination was begun, when it was disclosed that both the referee and the attorney for the defendant had an engagement in court, at Rochester, at eleven o’clock of the same day, and that an adjournment of the examination must be taken for their accommodation, whereupon the attorney for the judgment creditors, who was for the second time in attendance'for the purpose of the examination at Fairport, requested that such adjournment might be taken to his office, in Rochester, at two o’clock of that day; and it was so ■ordered by the referee, who directed the judgment debtor to appear accordingly. His attorney objected to the adjournment on the ground, as stated by the refei’ee, that the referee had no power to require the judgment debtor to attend at any other place than that tiatned in the order of the judge. The judgment debtor failed to attend before the referee pursuant to the last adjournment; and, these facts being made to appear to the special county judge on the return of an order to show cause, the order was made from which this appeal is taken.

The court is asked to dismiss the appeal on the ground that under section 2433 of the Code of Civil Procedure the only mode of review, in the first instance, of an order made in the course of proceedings of this character, is by motion to vacate or modify the ■order, addressed either to the judge who made it, or to the court out of which the execution was issued. And such is the general provision of the statute, as contained in the first subdivision of the section cited. But the second subdivision makes an exception of the precise case in hand, viz. “where the execution was issued out of a county court,” in which case it is provided that an appeal from such an order “ may be taken in like manner as if the order was made in an action brought in the same court; ” and by sections 1340 and 1342 it is provided that “ an appeal may be taken to the supreme court from an order affecting a substantial right, made by the court or a judge, in an action brought in ” a county court. The appeal in this case was therefore properly taken, but we think there was no good ground for the appeal.

The statute relating to proceedings supplementary to execution provides for an order requiring the judgment debtor to attend and be examined concerning his property, either before the judge or the referee, at a time and place specified therein (Code Civ. Proc. § 2442); also that the judge or referee may adjourn the examination from time to time as he thinks proper (Id. §- 2444). This language cannot be construed to confine the judge or referee, in the exercise of his discretion, to an adjournment to-the same place named in the original order. 'There might be imperative reasons for a change of place for the examination, and the construction of the statute contended for the appellant would necessitate an order de nova whenever a change of the place of examination was found to be necessary. An adjournment of the examination to such convenient and proper place as the referee may appoint must be regarded as within the discretion given him by the statute, to adjourn from time to time “as he thinks proper.” Moreover, the statute has taken pain^ to provide that, “ if the judgment debtor * * * is a resident of the state, he cannot be compelled to attend, pursuant to the order, or to any adjournment, at a place without the county where he lives. The provision plainly contemplates that he may be required to attend, pursuant to an adjournment, at some place within the county, other than that named in the order. Id. § 2459. It is only necessary, we think, that the change of place should be for some good cause, and reasonable in all respects. And such it clearly seems to have been in this case. Indeed, the propriety of. the change is not seriously questioned, but only the power of the referee to make it. The order appealed from should be affirmed. So ordered, with $10 costs and disbursements,

All concur.