text:
    C. B Keogh Manufacturing Company, Resp’t, v. William Eisenberg, App’lt.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    1, Quantum Meruit—Contract.
    Where a party has fully performed, he may recover on a quantum meruit, even though the proof shows an express contract at a fixed price.

      2. Contract—Building.
    An action on a building contract can be maintained where there has been a substantial compliance, though matters'of small amount or value have not been done according to the terms of the contract.
    3. Pleading—Substantive tacts.
    What the pleader is called upon to allege in his complaint is the substantive facts constituting the cause of action, and not the evidential facts from which the existence of the substantive facts is to be inferred.
    4. Mechanic’s lien—Note.
    The taking of a promissory note for the amount due does not deprive the claimant of his right to acquire a lien.
    5. Same.
    A mere agreement to take notes cannot avoid the lien law, if the owner afterwards refuses to give them.
    Appeal from a judgment foreclosing a mechanic’s lien entered in favor of the plaintiff on the report of a referee.

      Fromme Brothers, for app’it; Abner 0. Thomas, for resp’t.
   Bookstaver, J.

The complaint alleged the sale and delivery to the defendant between ¡November 1, 1890, and May 8, 1891, of certain merchandise, consisting of doors, sashes, blinds and other-building materials, at the agreed price of $4,200, and of certain other materials not included in this contract, of the value of $112.95, and admits payments to the amount of $1,500, leaving a balance of $2,812.95 and interest claimed to be due plaintiff. The answer after certain denials, setup three counterclaims, each based on a contract between the parties dated ¡November 10, 1890, which contract was offered in evidence on the trial. The first of these counterclaims is to the effect that the plaintiff delayed for eighty days after December 30, 1890, to deliver said goods, and stipulated damages according to the contract at the rate of $20 per day is demanded, amounting to $1,600. The second of the counterclaims alleges that part of the materials contracted to be delivered was not furnished at all, and that defendant purchased them elsewhere at an expense of $200. The third counterclaim is for $1,000 for alleged damages in loss of rent caused by delay in furnishing materials.

To these counterclaims a reply was interposed which denied all the allegations contained in each counterclaim. After issue joined, the court ordered a bill of particulars of the various items of the counterclaims.• The issues so joined were tried by a referee, who-found in favor of the plaintiff the full amount of its claim, deciding, in substance, that the plaintiff was delayed by the fault of carpenters and other workmen employed by defendant, and that as to many different items of trim, the plaintiff, prior to December 30, 1890, delivered a quantity sufficient to complete the buildings in controversy, and afterwards, at the request of defendant, made further deliveries in excess of the quantity it should have been required to deliver. From the judgment entered on the referee’s report this appeal is taken. '

The appellant contends that inasmuch as the complaint alleges a cause of action for goods, wares and merchandise furnished merely, and does not expressly set forth -that such claim is based on a written agreement, while the referee finds that whatever materials were furnished were delivered under a written contract at a fixed price, which provided that all the material should be delivered not later than the 30th of December, 1890, under a penalty for delay, and further found that some of the goods were furnished as late as the 6th of April, 1891, he erred in admitting evidence tending to show why the delivery was not completed within the time stipulated, the complaint not alleging any excuse for delay. This contention rests on Elting v. Dayton, 17 N. Y. Supp., 849; 43 St. Rep., 363. In that case, as appears from the opinion, the complaint alleged that on a certain date the plaintiff entered into a contract with the defendant to do certain work and furnish certain materials at a fixed price, and that he had fully kept and performed the contract, and had performed all the conditions thereof on his part The answer admitted the contract, which it alleged was in writing, and a copy was annexed thereto; the answer denied that the plaintiff had kepi and performed the contract or its conditions upon his part, and then alleged, among other things, that the agreement provided the plaintiff would on or before a certain date complete his contract under a penalty. On the trial there was no dispute but that the contract was not -completed at the time fixed in it or for some time after. When the plaintiff offered evidence tending to excuse his failure to perform, it was objected to as incompetent, for the reason that the plaintiff had sued upon a contract alleging he had strictly kept and performed •all the conditions thereof-, and that no excuse for non-performance and no modification or waiver had been set up in the- complaint. The referee overruled the objection, to which defendant excepted, and on appeal, this ruling was held error. We think that case well decided on the pleadings and facts then before the court, but they differ materially from the pleadings and facts now before us. In this case the complaint did not set up a contract nor aver performance of all its conditions. But it may be argued the answer did allege the written contract and avers its breach, in that the work was not performed within the time therein limited, which was denied by the reply, and thus the same question is .presented which was passed upon in Elting v. Dayton, supra. To this we answer the contracts in the two cases differ very materially. The appellant has laid much stress upon the provision in the contract which called for the full performance of it, not later than the 30th of December, 1890, while he has studiously overlooked the further provision in the same paragraph of the contract and separated from the one insisted on by him by a -comma only, to the effect that if delay was caused by the defendant, the time of the plaintiff for the completion of the contract should be extended a corresponding length of time, so that the whole paragraph reads as follows: “And the said parties of the second part hereby agree to commence furnishing trim on November 20. 1890, and to complete and fully furnish the entire contract not later than December 30, 1890, except they shall he ■delayed by reason of delay on the part of the party of the first part, and then only at such' time later, than said 30th day of December, 1890, as will be equal to the time delayed by reason thereof, .and then the time extended for the completion of the said contract shall be equal to the actual delay caused by said party of the first part." Reading the whole passage together as we must in order to ascertain its meaning, the intention of th,e parties clearly was that the plaintiff should have until the 30th of December, 1890, to complete the contract, plus such additional time as would be equal to the delay caused by the defendant, if any. Viewed in this light, the testimony admitted under appellant’s objection was competent and proper, not to prove any waiver or modification of the contract on the part of the defendant nor to excuse non-performance on the part of the plaintiff, but to show a performance by the plaintiff within the terms and conditions of the contract. In other words to show how much the time limited in the contract had been extended by its own provision.

This is the reverse of what was attempted in Elting v. Dayton, supra. It cannot be successfully argued that as the penalty for delay is inserted in the agreement after the provision for additional time in case the defendant caused the delay, and the penalty clause contains nothing respecting such delay, that the latter clause must control, and the defendant recover the penalty, for such a construction would put a premium upon the defendant’s own wrong doing, and would be unconscionable.

So far on the appellant’s own theory of the law of this case. But we do not understand that where there is a specific contract for a certain service at a fixed price, the plaintiff must in every case set forth that contract in his complaint, and aver performance, or excuse non-performance, where the defendant has himself been guilty of a breach of the contract, as the referee has found to be the fact in this case both in respect to delay and to payment. Where there has been a breach of the contract on the part of the defendant, the plaintiff may waive the contract and its breach, and sue on a quantum meruit, just as if no contract had been made, only in that case he would waive his damages for the breach, or he may set up the contract and sue for his damages on the breach, in which case he must excuse non-performance on his part in the complaint. • So where the plaintiff has fully performed, as the referee has found this plaintiff did, he may still sue on a quantum meruit, and recover, even if the proof shows an express contract at a fixed price. The only effect in such a case of proof of an express contract fixing a price, is that the stipulated price becomes the quantum meruit in the case. It is not a question of variance, but only of the mode of proof of the allegations of the pleadings. Fells v. Vestvali, 2 Keyes, 152. The Code undoubtedly requires that the complaint shall contain a plain and concise statement of the facts constituting a cause of action, but as was pointed out in Clark v. Tryon, 23 N. Y. Supp., 780; 53 St. Rep., 123. This means “ those facts which the evidence on the trial will prove, and not the evidence which will be required to prove the existence of the facts. In other words, what the pleader is called upon to allege in the complaint is the substantive facts constituting the cause of action, and not the evidential facts from which the existence of the substantive facts is to be inferred.” In the case under consideration the substantive facts are the furnishing of certain goods, wares and merchandise to, and which were used in defendant’s buildings, and these are well sustained by the evidential facts found by the referee of the performance by the plaintiff of a specific contract at a fixed price according to its terms as extended by reason of defendant’s delay.

If we are correct in these conclusions it not only follows the evidence objected to was properly admitted but the referee did not err in refusing to dismiss on the same ground which was the chief one argued on this appeal.

Another ground on which the appellant moved to dismiss the complaint was that the plaintiff had failed to prove what goods or materials were furnished to the defendant and used in the buildings on the premises. This may properly be considered with the exception to the 10th finding of fact, which isas follows: “ X. That as to many kinds of articles included in said trim the plaintiff furnished on or prior to December 30, 1890, an ample quantity thereof to complete said budding, and thereafter at the request of defendant made further delivery of the same kind of articles in excess of the quantity which it should have been required to deliver.” A bill of particulars of the defendant’s counterclaim was ordered by the court and furnished by the defendant ; from this bill it will appear that the entire alleged value of the goods furnished by the plaintiff after December 30, 1890, was only $624.35, and the entire amount claimed for goods purchased by the defendant of parties other than the plaintiff, amounted" to $200 only; thus admitting that all of the other trim was furnished. But it appears by the evidence of Mr. Tebbetts that the actual value of the goods furnished by the plaintiff after December 30th instead of being $624.35, was "$217 only. Even if there were proof that goods to this amount were not furnished, the amount is so small in comparison with the contract price for all the goods, that the referee would have been justified in refusing to dismiss the complaint on this ground and in finding that the contract had been substantially complied with. For it has been repeatedly held that actions of this character can be maintained where there has been a substantial compliance, although matters of small amount or value have not been done by the contractor according to the terms of his contract.

But we think in this case there is abundant proof that all of the goods called for by the contract, were furnished. Mr. Tebbetts’ testimony is- not seriously qualified or contradicted, and we think substantiates the referee’s findings. Besides the testimony of Peyser, Keogh, Chrystie and others, abundantly supports the finding, as do the following considerations.

The defendant claims to have purchased 1,400 feet of base because of the failure of the plaintiff to deliver. Tebbetts says the entire amount of base required, allowing ten per cent, for waste was 4,200 feet. The amount delivered, as shown by the receipts in evidence, was as follows: December 12, 1890, 1,500 feet; on same day, 1,852 feet; on the 13th December, 958 feet; on the 6th February, 60 feet; on the 6th April, 250 feet; making a total of 4,620 feet. In other words, more than enough to finish the building was delivered to the defendant by the plaintiff prior to the 30th day of December, 1890. The defendant claims to have spent .$48.50 for wainscoting not furnished by the plaintiff. According to Mr. Tebbetts’ testimony, the entire amount of wainscoting required was 7,000 lengths of yellow pine, and 1,400 lengths of white wood. The case shows deliveries of wainscoatings as follows: December 19, 1890, 1,300 lengths; December 20,2,750 lengths; December 30, 3,950 lengths; February 17, 500 lengths, and February 28, 217 lengths; making a total of 8,717 lengths. And here again we find that 8,000 lengths were furnished on ■and prior to December 30, 1890, or much more than called for by the contract. On the 13th December, 1890, the case shows 1,400 lengths of white wood wainscoting was furnished, which was just the amount required by the contract; but, notwithstanding this, sixty lengths were afterwards furnished on the 16th February, 1891.

The defendant claimed to have paid ninety-four dollars for sink backs and pipe casings. The receipts show delivery of material of this kind. The specifications stipulate that pipe ■casings are only to be supplied for the kitchens. The uncontroverted evidence is that pipe casings were used in the bathrooms.

The entire amount of chair rail in the two buildings as tested by actual measurement, was 1,796 feet. This- included 1,464 feet in the apartments and 332 feet in the stores. The specifications do not require the plaintiff to furnish any chair rail for the stores, and all of that used was apparently obtained from the plaintiff without compensation. We think it clearly appears from the evidence that the amount of chair rail delivered at the buildings before December 30th was 1,900 feet, or much more than necessary to put up all the chair rail called for by the contract.

Four boxes of glass were delivered on the 13th of January, and was quite sufficient to complete the buildings. However, a further delivery of three boxes was made on the 6th of April. This was because the glass first delivered was broken after it ■came to the buildings and through no fault of the plaintiff.

We therefore think the referee was abundantly justified in refusing to dismiss the complaint upon this ground, and, also in making the findings he did.

Another ground on which the defendant moved to dismiss the complaint was that the notice of lien was not filed within ninety ■days of the completion of the work. The testimony shows that the last item was furnished on the 6th of April, 1891, and the referee has so found. The lien was filed on the 8th day of May, 1891, much within the time limited by law for filing the same.

Defendant claims the plaintiff has waived any right to a lien because the contract proved on the trial showed that it was to take part payment in notes having three months to run, and the last of which was not to be given until thirty days after the work had been fully completed, thus carrying it beyond the time when a lien could have been filed. It is a well established rule in this court that talcing a promissory note’ for the amount due, does not deprive the claimant of his right to acquire a lien.' The only effect is to suspend its enforcement during the period for which the credit is thus given. And the mere agreement to receive the note in payment does not deprive the plaintiff of his right to bring the action if such note was not delivered and paid when due. Miller v. Moore, 1 E. D. Smith, 739; Lutz v. Ey, 3 id., 621; Althause v. Warren, 2 id., 657. But it is unnecessary to discuss this subject further as there is not a particle of proof in the case that the defendant ever gave or even tendered these notes. A mere agreement to take notes certainly cannot avoid the mechanic’s lien law, if the defendant wilfully violates the conditions of the contract by refusing to give the notes.

The defendant objected to one pf the witnesses for the plaintiff testifying as to what Simon Peyser had said in regard to the furnishing of materials and the cause for delay in the work, which was overruled by the referee and he excepted. But the defendant had before that time testified that Peyser was his representative at the building, that he (defendant) did not exercise general supervision over the building, but the superintendent did, and that he told the defendant what was needed, and everything that was going on, who was furnishing the material right and who was • not; that while he, Eisenberg, gave some orders, Peyser had power to give them also; that he himself never receipted for goods delivered, but that it was the duty of Eisenberg to do so, and that he was in charge there. It thus appears that the defendant himself relied upon Peyser for information as to what was going on at the buildings, and it would be strange if the plaintiff did not have a right to rely upon the same information and to give it in evidence if material; and that it was material is apparent without argument.

We have carefully examined the other exceptions taken by the defendant during the progress of the trial, but do not think there was any substantial error committed by the referee, certainly none which could in any way have affected the result. The judgment should therefore be affirmed, with costs.


source: Caselaw Access Project

author: Bookstaver, P. J.

license: Public Domain

text:
    Frederic Lyster, Resp’t, v. Aylma Y. Pearson, App’lt.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    1. Judgment—Void.
    A judgment, rendered upon the service of a summons on a person whose designation was never accepted by him nor filed in the county clerk’s office, while the defendant was within the limits of the United States, is void.
    3. Same.
    A delivery and acceptance of such paper, whether a designation or mere power of attorney, are essential to its validity for any purpose.
    3. Same—Notice op withdrawal.
    After a notice of withdrawal has been acted upon, it cannot be rescinded except by the permission of the court.
    Appeal from an order of the general term of the city court which affirmed an order made at special term.

      Smith, Bowman & Close (Artemas B. Smith, of counsel), for app’lt; Secor & Page (Charles B. Page, of counsel), for resp’t;
   Bookstaver, P. J.

The order from which the original appeal below was taken, was entered upon a motion made by appellant to vacate the judgment entered against him as void for want of jurisdiction of defendant and for its improper entry. The order at special term directed that the “ default be opened, etc.,” on condition that the appellant pay plaintiff’s attorneys $15 and serve his answer in six days, otherwise that the motion be denied. This appeal is taken to review so much of the order as imposes conditions upon the setting aside of the judgment, thereby in effect adjudging that the process was served upon the defendant. The judgment sought to be vacated was entered as by default and was not based upon the personal service of the summons upon the defendant but upon an alleged service upon Charles Mortimer, the person, claimed by respondent to have been designated by said defendant according to law to receive summonses for him. The instrument alleged to be a designation is contained in the judgment roll and was never filed with the county clerk, nor does it appear to have been accompanied by any written consent of the person designated, executed or filed according to law. It also appears from the appeal book that the appellant has not been outside of the United States.

Respondent, both on the argument and in his brief, practically conceded that the order was appealable to this court as it affected a substantial right. A motion to vacate the judgment was the proper remedy. The questions raised here could not be raised by an answer or demurrer; Waits Pr., 541, § 2 ; Vilas v. P. & M. R. R., 123 N. Y., 450; 34 St. Rep., 67. It was conceded that there was no personal service on the defendant, but it is claimed that Charles Mortimer was duly designated as the proper person upon whom to serve a summons in his stead. Section 430' of the Code, which regulates such designation, is as follows:

“ A resident of the state of full age may execute under his hand and acknowledge in the manner required by law to entitle a deed to be recorded, a written designation of another resident of the state, as a person upon whom to serve a summons or any process or other paper for the commencement of a civil special proceeding in any court or before any officer during the absence from the United States of the person making the designation, and may file the same with the written consent of the person so designated, executed and acknowledged in the same manner, in the office of the clerk of the county where the person making the designation resides. The designation must specify the occupation or other proper addition and the residence of the person making it, and also the person designated; and it remains in force during the period specified therein, if any, or if no period is specified for that purpose, for three years after the filing thereof.” * * *

The affidavits in this case show that the original designation of the defendant was never filed in the office of the county clerk. They also show that the written consent of the person so designated was never executed, acknowledged and filed in the office of the county clerk. We, therefore, think the designation was not valid under the provisions before quoted, and that Mortimer was never properly designated as the person upon whom the summons in this action could be served. It also appears from the affidavits in the case that the defendant had not gone beyond the limits of the United States when the process was served. For these reasons the court below never acquired jurisdiction of the appellant and the judgment was absolutely void. Read v. French, 28 N. Y., 285, 294-5. The same conclusion was reached in a precisely similar case in the special term of the supreme court, in Lynch v. Pearson, N. Y. L. J., Dec. 22, 1893, p. 762.

But the court below evidently proceeded upon the theory that although the designation might not be-valid under § 430 of the Code, yet it was good as a power of attorney and the service of the summons upon Mortimer was proper for this reason. We know of no law which forbids a party-if he chooses to do so, to waive the right of personal service and give a power of attorney to another to receive it in his stead. Where one expects an action to be brought against him, he frequently notifies his adversary that the summons may be served upon attorneys designated by him, and such service would, doubtless, be held good. But where an adversary relies upon such a power he must, at all times, be ready to show its validity, and that the power of attorney was in force at the time of making the service. We think the paper bears internal evidence of not having been executed as a mere power of attorney, but rather as a designation under § 430 of the Code, as its language and various provisions conform to this view of it. But it is clear frpm the appeal book that this power of attorney or designation was never delivered to Mortimer for use. The plaintiff says, in his affidavit, and it is uncontradicted, “ that the said' paper was left by me at my said office, of which said Mortimer had charge, but I expressly told the said Mortimer and instructed him that the said designation should not be used by him in any manner, nor should the same be filed * * * until such time as I shall be traveling outside the United States, and should notify and instruct him by letter to take the designation to my regular counsel, Messrs. Smith, Bowman & Close, and have them perfect the designation by filing said paper in the office of the county clerk of the city and county of Uew York; that said Mortimer told me he would obey my instructions, and I relied upon his so doing, as I then believed him to be trustworthy. I have never changed or modified the instruction to the said Mortimer, that the said Mortimer should deliver the said designation which I executed as aforesaid, either to the plaintiff or his attorneys, and if the said Mortimer has delivered the said designation which I executed as aforesaid, either to the plaintiff or his attorneys, he has acted contrary to my directions and wholly without authority from me, and I repudiate his act in so doing.” It is clear from the foregoing that the paper was simply left at defendant’s office with express instructions that he should not use it until notified to do so, and that the instrument was never delivered or intended to be used either by the defendant or Mortimer except in the case specified.

A delivery and acceptance of that paper was essential to its validity for any purpose. The appellant had a right to leave the instrument in his office and impose conditions upon its use of taking effect. Pendleton v. Hughes, 65 Barb., 145; Crawford v. West Side Bank, 100 N. Y., 55. Equally fatal to the so:called designation or power of attorney is the positive proof that Mortimer never accepted it.

But even if good as a power of attorney, we think that plaintiff waived his right to take any judgment. After the service of the summons upon Mortimer, the plaintiff, by one of his attorneys, told one of defendant’s attorneys no further attention need be paid to the paper, and endorsed on the copy summons which had been served the words “ withdrawn, Aug. 15, 1893, Secor & Page,” and returned the copy of .the summons so indorsed to the defendant’s attorney. The respondent’s attorneys afterwards notified appellant's attorney that this withdrawal was withdrawn by them. There is no doubt that such notice would be good provided the appellant had not acted upon it; but he had acted and relied upon the withdrawal inasmuch as he made no motion to set aside the alleged service as he could have done, and as it would have been his duty to have done but for the memorandum. After such a paper has been acted upon1 it cannot be rescinded except by permission of the court. Owen v. Cawley, 36 N. Y., 605-6.

Having arrived at this conclusion, it is unnecessary to determine whether or not the judgment was absolutely void or voidable only because it was entered by the clerk and not by the court.

The order appealed from should be reversed with costs and disbursements, and should be remitted to the court below for proper action.


text:
    Louisa Carlson, App’lt, v. Maria L. Winterson, Resp’t.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    1. Appeal—Restitution.
    The court, which modifies or reverses a judgment or order, has power to make or compel restitution.
    2. Same.
    Where the judgment is reversed by the common pleas, the city court, it seems, has no jurisdiction to grant such order.
    3. Same—Discretion.
    The granting or refusal of such order is in the discretion of the. court.
    4. Same.
    . Where the reversal is upon a question of law, which does not preclude a recovery in the action, such order should not be granted.

      Appeal from an order of the general term of the city court.

      Hector M. Hitchings, for app’lt; Edward F. Bullard, for resp’t.
   Bookstaver, P. J.

Judgment was recovered upon the trial of this action in the city court and affirmed upon an appeal to the general term of that court. On appeal to this court that judgment was reversed for an error of law, and a new trial was directed. Nothing was said in that decision as to restitution. Pending these appeals the defendant, having given no security, execution was issued upon the city court judgment and satisfied by sheriff’s sale of certain real property of the defendant. The order herein appealed from set aside and vacated this sale and restrained the sheriff from executing a deed in pursuance thereof. The law of this state makes ample provision for restitution in case any property has been wrongfully obtained by reason of an erroneous judgment or order of the court. By the common law a. promise is implied to repay moneys received upon such judgment or order, which may be recovered, by action in all cases, by proceedings as for contempt where the parties are before the court or where the person proceeded against is an officer of the court, by execution in appropriate cases, and in certain other contingencies provided for in the Code. But the suitor seeking redress under the provisions of the Code must make an intelligent choice of the remedies applicable to the facts of his ease. The notice of motion, the fact that it was made to the general term of the city court, and the order granted, show that this application was under § 1323 of the Code of Civil Procedure, which provides, “ where a final judgment or order is reversed or modified upon appeal, the appellate court or the general term, as the case may be, may make or compel restitution.” That this confers the power of restitution upon the court which modifies or reversed a judgment or order, is clear without the authority of Market Natl. Bank, v. Pacific Natl. Bank, 102 N. Y., 464. If there were any doubt about it, that case is conclusive upon the point.

In speaking of 1292, which reads, where a judgment is set aside, for any cause, upon motion, the court may direct and enforce restitution in like manner, with like effect and subject to the same conditions, as where a judgment is reversed,” the court said: “The court meant in this section is the court which set aside the judgment.” Section 1292 is less completely expressed than section 1323, to which it refers and on which it depends. It is proper, therefore, to regard the decision thus quoted from as equally applicable to either. We, therefore, think the city court had no jurisdiction to grant the order upon the application made to it under the facts in this case.

If it were otherwise, we think the court below should not have made the order it did at the time it did. Section 1323, just cited in parts, says: “The court may make or compel restitution.” It will be observed that the word “ may ” is used instead of “ shall,” thus making the order appeal to the sound discretion of the court as to whether it ought to be granted or not. The provisions of this section are similar to those of section 369 of the old Code, where the Word “shall” instead of “may ” is used. But even under that section the court of appeals expressed great doubt whether restitution was a matter of strict right, and would in all cases be ordered where the judgment of reversal was not final, but directed a new trial, and for reasons which did not prevent the respondent from further maintaining the action. Martin v. Brewster Iron Mining Co., 56 N. Y., 671. The reasoning of the court in that case is especially applicable to the one under consideration. We did not reverse the judgment upon its merits, but upon a question of law which did not by any means preclude a recovery in the action, and until that action is tried we think, under the circumstances of the case, the order should not have been granted. Beside there is not a little reason for belief that the order affected the title of a purchaser in good faith and for value, in which case section 1323 prohibits restitution, but it is not now necessary to determine that question.

The order appealed from should, therefore, be reversed, with costs.


text:
    William Risk, Resp’t, v. Richard Uffelman et al., App’lts.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)
    1. Judgment—District court.
    In the district court, where the original summons is not returned as required by law, judgment may be entered in favor of defendant on plaintiff’s failure to appear.
    2. Same—Entry.
    The judgment is complete, as far as the justice is concerned, when he has made the necessary entries upon the original summons or the copy thereof.
    3. Evidence—Documentary.
    In an action on an attachment bond, the original summons and the marshal’s return thereon, which were never returned to the court, are properly excluded.
    4. Same.
    Where a party, by his own acts, has brought into the case an issue, he cannot claim that the admission of evidence bearing upon it is reversible error.
    5. Appeal—Charge.
    Where there was conflicting evidence on an issue, a request to charge, which assumes that there was none, is properly refused.
    6. Damages—Attachment.
    Where a judgment of non-suit is rendered against the plaintiff in the attachment action, the condition of the bond is broken, and prima facie the sureties are responsible for the full value of the property seized on the attachment.
    1 Appeal from a' judgment of the city court affirming a judgment and order entered at a trial term.

      Uriah W Tompkins {C. J. 6. Hall, of counsel), for app’lts; James B. Angel, for resp’t
   Bookstaver, P. J.

On or about the 31st October, 1892, one Tilly Siegmann, procured a summons from the district court of the city of New York for the first judicial district, upon an alleged claim for $250 against William Risk, the respondent herein, being the defendant in that action. On the same day a warrant of attachment was issued in such action at the instance of the plaintiff herein, and upon procuring such warrant the usual bond in such case, executed by the defendants in this action was given. Said attachment having been delivered by the plaintiff or someone in her behalf to one John Salmon, a city marshal, he proceeded with a posse of men between six and seven o’clock in the evening of the same day to the grocery store of Risk, at 280 Pleasant avenue in this city and seized :and took possession of the stock of groceries claimed to belong to the respondent, by virtue of the attachment, and served him with a copy of the same and also with a copy of the summons in the action, and thereafter ejected Risk and his wife, who was assisting him in his business, from the store, and he or someone claimed by the plaintiff in this action to be acting with him, remained in possession of the stock of "goods until about ten o’clock the next morning when, as Risk claims, Salmon caused the entire stock to be sold out at public auction, he himself being present and directing the sale, although Salmon denied on the trial that he was present or had anything to do with it. The entire stock of goods was sold at that time and thus lost to Risk. As far as appears from the evidence no inventory of the goods so seized was ever made by the marshal or served upon Risk or filed in the clerk’s office, and no return whatever of the warrant of attachment or the summons was ever made or filed with the court. The district court summons was made returnable before the court November 11th, 1892, at 10.30 o’clock. On the return day Risk appeared in the court pursuant to the summons with his counsel ready to defend the action, and waited more than an hour, during which time the plaintiff in the suit and attachment did not appear in person or by attorney, whereupon Risk the •defendant in that action and plaintiff in this, moved the court to -dismiss the action and to vacate the attachment by reason of plaintiff’s default in appearance, which the court did, endorsing the judgment of dismissal and vacation of the attachment upon the copy of the summons served by the marshall upon Risk and filing the same with the clerk of the court as the judgment record thereof. Thereafter this action was brought against the defendants herein on the undertaking before mentioned to recover the full amount thereof as damages claimed by the plaintiff to have been sustained by him by reason of the levying of the warrant of attachment before mentioned. Issue was joined and on the 18th October, 1893, was tried in the city court and resulted in a judgment in .favor of plaintiff for $653.51 damages and costs, from which an appeal was taken to the general term of that court where the judgment was affirmed. . Hence this appeal.

The first question which arises on this appeal is whether the district court judgment before mentioned was regular and could be entered upon a copy of the summons, the original never having-been returned or filed in the court. Appellants claim that the judgment was irregular and could not be entered upon the copy of the summons, the marshal not having made any return to the original, citing § 2916 of the Code, and Jackson v. Sherwood, 50 Barb., 356. The portion of the section quoted is to the effect-that, “the justice may upon the return of the summons or at any time to which the action is adjourned vacate the warrant of' attachment upon his own motion if he deems the papers upon which it was granted insufficient," or he may at that time do so-upon the motion of defendant; and Jackson v. Sherwood holds-that the summons must be returned to the justice with a written return thereon by the officer or person making the service to confer jurisdiction upon the justice to proceed. But this latter case, and many others which could be cited, arose in instances-where the plaintiff undertook to proceed without the return in writing under the hand of the marshal; and even as to those-cases it was said in Reno v. Pinder, 20 N. Y., 298, 304, “that-evidence may be given in fact of the actual service of the process, and the position taken by plaintiff's counsel that the fact of service without the return would not give jurisdiction, cannot be sustained.” Appellant seems to rely mainly upon the sections of the Code which relate to district court actions, as he quotes from them. While it is true that these sections were made applicable to district courts of this city, the Code § 3211, sub. 3, expressly provides that “the manner of applying for, granting and executing an order of arrest and warrant of attachment or a requisition to replevy, and the proceedings thereupon and with respect thereto as prescribed in the articles so made applicable (to district courts) are subject to the statutes remaining unrepealed after this chapter takes effect especially applicable to those-courts or to any of them, prescribing the duties of the justice or the clerk thereof, or regulating the mode of transacting business in an action brought therein.’1 So that it is not safe to rely upon the Code, but reference must be had to chap. 410 of Laws of 1882, commonly known as the Consolidation act. Section 130$ of that act provides that the action in the district court should be deemed commenced at the time the summons is actually delivered for service; and § 1296 provides that it must be commenced by the voluntary appearance of and joinder of issue of the parties or by the service of a summons. Another section of the same act provides that such service must be made personally upon one of full age and not under disability.

In this case a copy of the summons, together with a copy of the attachment, was served upon Bisk personally. The action, we think, must therefore be deemed to have been commenced at that time, and Bisk could refuse to obey the directions of the summons only at his peril. As to him, the action was then actually commenced, and his appearance on the return day in accordance with its requirements gave the court jurisdiction as to him. Whether the court acquired jurisdiction or could proceed against him in his absence on plaintiff’s motion before a return as required by law was made by the marshal, is an entirely different question. Section 1366 provides that if the plaintiff fails to appear on the return of the summons and make his complaint, the action must be dismissed ; and § 1382, that “ judgment that the action be dismissed, with costs without prejudice to a new action shall be rendered in the following cases. (2) Where the plaintiff fails to appear at the time specified in the summons or upon adjournment;” and § 1420, that if judgment be given against the plaintiff for any cause in any action after an appearance by the defendant, the defendant shall recover ten dollars where judgment is entered without a trial.

This was precisely what was done in this action. But appellants contend that notwithstanding this, inasmuch as the original summons was not returned as required by law, no judgment could be entered. While we concede that this contention may be well founded as far as the plaintiff is concerned, we think it has no application to proceedings by the defendant on plaintiff’s failure to appear. It was the marshal’s duty to return the summons as required by law, but his failure to do so is not the defendant’s fault. If he could not proceed because of this, he would be left remediless. As we understand appellants’ contention, the judgment must be entered upon the original summons. After diligent search we find no provisions of law to this effect. It is not in analogy with proceedings in any other court. In courts of record where judgments are entered in favor of the defendants, the original summons is seldom or never filed with the judgment roll; it is not necessary even to file the copy served, but a copy of that copy answers the purpose. In the case under consideration there was no other way of entering the judgment than that pursued by the justice who gave it. The plaintiff by obtaining the summons and giving it together with the copy to the marshal, is estopped from disputing the validity of that copy. It was his act which brought the defendant into court.

Appellants also contend that no docket was ever made of the judgment and it was therefore void. But a careful examination of the testimony does not show that no docket was ever made as required by law. On the other hand, the clerk when asked by appellants’ counsel whether there was a docket of the judgment, or not, replied he would not like to answer a question of that kind without making other searches; that is, that he was not prepared to testify there was no docket. But even if there had been none, this would not vitiate the judgment, for § 1386, chapter 410, recognizes the distinction between a judgment and its docket. To keep the docket is the duty of the clerk and not of the justice; as far as he is concerned the judgment is complete when he has made the necessary entries upon the original summons or the copy thereof. The judgment is sufficiently rendered when an entry is made by the judge in his minutes or a memorandum of it is made upon the papers if made within five days, although no entry is made in the docket until afterward. Hall v. Tuttle, 6 Hill, 38; Walrod v. Shuler, 2 N. Y., 134. Section 1414 of chapter 410 of the Laws of 1882, provides that a certified copy by the clerk or his deputy of any paper or folio in his office, shall Be prima fade evidence of that paper, much more must the original itself, which was produced and offered in evidence in this case.

Appellants further contend that the warrant of attachment was countermanded by plaintiff’s attorney, and that thereupon his .authority ceased, and he could and did do nothing further under the attachment Also that there was a compromise and agreement between the plaintiff in this action, so being defendant in that, and the plaintiff in that action and Smith & Sills, whereby the property levied upon was conveyed to Smith & Sills, and the plaintiff in this action had no further interest in it and could not recover upon the undertaking given on issuing the attachment in damages for its taking. All these questions were hotly contested on the trial of this action, and what actually took place is left very much in doubt. The testimony in behalf of the plaintiff is somewhat confused, and on the part of the defendants it is manifest that neither Salmon nor any one connected with him in the transaction desired to tell more about it than they were actually compelled to in order to make a show of defense, and their testimony was even more conflicting and self-contradictory than the plaintiff’s. The questions as to the vacation and discharge of the attachment, the compromise and settlement of the action and as to the ownership of the property and as to the marshal’s action under the attachment, were all fairly submitted to the jury, and their findings on these questions, although they might have been reviewed by the general term of the city court, are conclusive, upon us.

Appellants claim that it was error to exclude the original summons and warrant with the marshal’s return thereon. By the marshal’s own confession, neither the summons nor the attachment was ever returned to the court; the return was not in his handwriting, nor does it appear when what purports to be a re-' turn was actually made. To permit such papers in evidence would open a wide door for fraud and oppression.

Appellants also claim that no evidence as-to the duress of property should have been allowed in this case. But they themselves, by their counsel, opened the door to this, and it was one of the issues brought into the case by their own acts, and there was no error in admitting the testimony.

It was not error to exclude defendant’s Exhibit, No. 1, for identification. At the time it was offered the signature of Mrs. Risk had not been sufficiently proved to permit its being received in evidence, and at that stage it was incompetent. The court expressly stated it was to be admitted if connected otherwise, if sufficiently proved. When her signature was subsequently proved, it was not again offered in evidence, but notwithstanding it was practically before the jury, and they doubtless considered it.

The objection taken to the question about plaintiff’s ejectment from his store, was not well taken, as no ground for it was stated. Although the question as to the effect of the attachment upon plaintiff’s business was improper in form, it is clear it did the defendants no harm, as the answer stated facts and not conclusions.

The exception to the charge is not well taken. It was not in substance “ that if the bill of sale had been secured by force or fraud, the verdict of the jury should be for the plaintiff,” but was in the following language: “ Was the attachment vacated and discharged or did the sale that occurred on the following day occur under a bill of sale properly executed, or was it secured by force or fraud,” which was entirely proper under the evidence given in the case.

The refusal of the court to charge defendant’s first request in the following words : “ That the plaintiff is not entitled to recover more than nominal damages by reason of the marshal being in possession of the property for about one and a half hours before he was notified to withdraw the attachment was proper, and the exception to such refusal was not well taken, because there was much conflicting evidence on this question, while the request assumes there was none, and the law applicable to those facts had been before clearly stated by the judge who tried the case.

The undertaking of the defendants on the issuing of the attachment was to the effect that “if the defendant recover a judgment or the warrant of attachment is vacated, the plaintiff will pay all costs which may be awarded to the defendant and all damages which he may sustain by reason of the attachment, not exceeding the sum of $500. In Earl v. Spooner, 3 Denio, 246, which was an action on a bond similar in all respects to the undertaking now under consideration, the court said: “The defendants were bound by their bond to pay the plaintiff all damages and costs which he might sustain by reason of the issuing of the attachment referred to in said bonds if the plaintiff in said attachment failed to recover judgment thereon, No such judgment was recovered, but, on the contrary, a judgment of non-suit was rendered against the plaintiff in the attachment; the condition of the bond was thus broken and prima facie the defendants were responsible for the full value of the property which had been seized on the attachment. They had bound thems.elves to pay all damages which the defendant in the attachment might sustain ‘by reason of such attachment.’ And in Northrup v. Garrett, 17 Hun, 497, it was held that although the justice failed to acquire jurisdiction in the attachment suit, that the defendant in that suit might maintain an action upon the bond, quoting Bowne v. Mellor, 6 Hill, 496. The plaintiff, therefore, had fully made out the case and was entitled to judgment to the amount of the damages sustained by him, to wit, the value of the property. It is true that the proof of this was somewhat vague, but the property was of much greater value than the verdict rendered, and appellant cannot question the evidence because he deprived plaintiff of all opportunity of making an inventory or procuring other proof than that which was given of its value.

We regret to say that the evidence in this case leads us to believe that under color of law one of its officers has been guilty of inflicting a serious wrong on a poor and ignorant person, one of a. class both the law and its officers should be especially vigilant in protecting. The verdict of the jury, which we think entirely justified by the evidence, only rights this wrong in part. The marshal if proved guilty on proper charges should in addition be deprived of his office and severely punished.

We think no error was committed on the trial which requires us to reverse the judgment which is, therefore, affirmed, with costs.


author: Van Brunt, P. J.

text:
    In the Matter of the Broadway & Seventh Avenue Railroad Company. In the Matter of Acker, Merrall & Condit Company.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    1. Appeal—First instance.
    An objection not taken in the court below cannot be raised for the first • time upon the appeal.
    3. Condemnation proceedings—Where taken.
    Condemnation proceedings must be taken before the court and not before a judge. y
    3. Same—Petition.
    A petition, which alleges that the existing premises are inadequate, but. with the additional land will be sufficient, contains facts sufficient to show the necessity of the acquisition.
    4, Same.
    Under § 3365 of the Code, a denial of knowledge or information as to plaintiff’s corporate existence is sufficient to require plaintiff to prove that fact.
    5, Same.
    In such case, an admission on the trial that the petitioner’s officers are as stated in the petition does npt waive proof that plaintiff is a corporation.
    6. Same.
    Section 1776 of the Code has no application to such proceedings.
    Appeal from an order entered on June 23, 1893, overruling defendant’s objection to the petition, and allowing plaintiff to amend its petition, and directing defendant to answer in five days, and from an order entered on said June 23, 1893, setting down for trial on June 29th the issues expected to be raised by the answer to the amended petition, and from an order entered on June 29th appointing commissioners to appraise the property sought to be condemned.

      Cannon & Atwater (H. C. Atwater, of counsel), for app’lt; Chandler & Kremer (J. Chandler, of counsel), for resp’t.
   Van Brunt, P. J.

This proceeding was brought, under the condemnation act, to condemn for the use of the plaintiff the leasehold interest of the Acker, Merrall & Condit- Company in certain real estate known as No. 155 and 157 West Fiftieth street, New York city. The petition was presented on the 7th of June, 1893, and the Acker, Merrall & Condit Company appeared, and filed objections to the petition upon the ground that it did not state any facts showing the necessity for the acquisition by the plaintiff of the property sought to be taken for the purposes of the corporation, or for any public use. These objections were overruled, and before anything further was done the plaintiff applied for leave to amend the proceedings by adding the Metropolitan Traction Company as a party defendant. On the 23d of June, an order was entered upon this motion allowing the amendment, and directing the A.cker, Merrall & Condit Company to serve its answer to the amended petition on June 28th. On the same day a separate order was made, setting down the issues raised by the petition for trial on the 29th of June, 1893. The trial was had before Mr. Justice Ingraham on the said 29th of June, and was concluded the same day. A decision was made, and the order appointing ■commissioners entered on the same day.

It is urged upon the part of the appellant that the answer to the petition denied and put in issue nearly all the material allegations of the petition, and that on the trial no proof was given of many of the allegations so denied, and also that, at the time of the commencement of this proceeding, other proceedings had been pending, and that no documentary evidence was offered by the petitioner, except an order dismissing and discontinuing the former proceedings, and that only a few witnesses were examined, some ■of whom testified as to certain negotiations had by the plaintiff with the defendant as to the purchase of the property, and one of whom gave some slight evidence that the property sought to be condemned was needed for storing cars, etc. The point is also raised that the learned justice, although holding a special term on the 13th of June, 1893, the day on which the order was returnable, on the 23d of June, when the order to show cause was disposed of, was not sitting in court,—neither was he so sitting on the 29 th of June, the date of the trial,—and that, therefore, the order of June 23d, although it appears to have been made at special term, was, in point of fact, not a special term order, but a judge’s order, and that the trial was had before a judge, and not before the court.

It is undoubtedly true that proceedings for the condemnation of land must be taken before the court, and not before a judge. Section 3360 provides for the institution of the proceedings by the presentation of a petition by the plaintiff to the supreme court, and section 3367 provides that the court shall try any issue raised by the petition and answer at such time and place as it may direct, or it may order the same to be referred to a referee to hear and determine, etc.; thus showing that whatever proceedings are taken must be taken in court, and that a judge out of court has no power in respect to the same. But in the record presented to us there is no evidence whatever that Mr. Justice Ingraham was not holding a special term of the supreme court at the time he made the order complained of, and also when he tried the issues. There seems, therefore, to be no ground whatever for this objection.

It is further urged that the court erred in compelling the defendant to answer the petition in five days, and in setting down the issues for trial before an issue had been joined. But the difficulty • about this objection, raised for the first time upon this appeal is that the appellant went on and tried the issues without objection, submitted itself to the jurisdiction of the court, took the chances of a decision in its favor, and, now that it is beaten, claims that the court" exceeded its power in compelling it to go on with the trial when it did, when it does not appear from the record presented that there was any compulsion about it, but that the appellant went to trial willingly, and without dissent. If the appellant had raised this objection at the proper- time,there might have been serious question as to the regularity of the proceeding; but not having in any way dissented from the action of the court, but having gone on with the trial, as already stated, and taken the chances of a favorable decision, without notice of any such objection, it is too late now to raise the same.

It is further urged that the petition disclosed no facts showing the necessity of the acquisition by the plaintiff of -the property sought to be condemned. It seems to be conceded that, under the old railroad act of 1850, the allegations of the petition were amply sufficient. But it is urged that, in consequence of differences existing in the provisions of the present condemnation act, the petition herein was not sufficient to confer jurisdiction, in this: that the petition did not set forth with the certainty required by the act the public use for which the property was required, and a concise statement of the facts showing the necessity of its acquisition for such use. This objection, it does not seem to us, is well founded. The allegation in the petition is that it now owns the whole block, with the exception of the property in question, and which “ is now used by it for, and is necessary and convenient for, its stables, offices, power houses, stations and buildings, and for its corporate business, machinery, and fixtures, and for the accommodation and use of its machinery and passengers, freight, and business, and the operation of its said cable line of railroad; that said real property so owned and used by plaintiff, petitioner as aforesaid, is inadequate and insufficient for the uses aforesaid, and for the accommodation and use of its machinery, passengers, freight, and business, and for its corporate purpose now and as a cable railroad, but that, with the addition of the property sought to be condemned, it would be, for the present, adequate and sufficient for plaintiff’s said uses; that the particular lot described, and which is sought to be condemned, is the only lot in said parcel or square of which the petitioner has not possession; and that the necessities and convenience of transacting its business for the benefit of the public require that it shall have possession of the entire parcel.” It will be seen that the requirements of the statute are complied with. The facts which show the necessity of its acquisition for the use of the plaintiff are that the premises now occupied by it are inadequate for the carrying on of its corporate business, and. that, with the addition of the property sought to be condemned, the property would be adequate and sufficient. Therefore, the necessity for the acquisition is the want of present accommodation, and the fact that, by the acquisition, such accommodations will be afforded. These are all the facts necessary to appear to show the necessity of acquisition. It certainly was not the intention that the petitioner should be required to spread out a detailed statement of all the uses to which the property was' intended to be applied, but simply to apprise the court and the persons against whom it was proceeding of the facts upon which it claimed to exercise the right of eminent . domain.

It is further urged that the plaintiff did not prove that it was a corporation, de jure, or that it had any right to acquire real estate for its use. The allegations of the petition are that the plaintiff, petitioner, is a street surface railroad corporation, organized and existing as such under and by virtue of the laws of the state of Hew York; that, “ as such corporation aforesaid, it is authorized by law, in addition to the real property owned by it, to acquire and hold title to the real property hereinafter described for its use, by condemnation; that the object, corporate right, and purpose of petitioner is to own a street^ surface railroad, and the appurtenances and lands necessary and convenient for operating the same, for a public use.” The answer of the defendant denies that it has any knowledge or information sufficient to form a belief as to any of the said allegations. On the trial, no evidence of any kind was introduced to show that the plaintiff was a corporation de jure. It is urged upon the part of the respondent that this is not necessary, because of the provision of § 1776 of the Code, which declares that “in an action brought by or against a corporation the plaintiff need not prove, upon the trial, the existence of the corporation, unless the answer is verified, and contains an affirmative allegation that the plaintiff or the defendant, as the case may be, is not a corporation. And our attention is called to the case of In re New York L. & W. Ry. Co., 99 N. Y., 12. The facts in that case were that it was claimed that the railroad company had not legally established its corporate existence. In its petition, by which the proceeding was initiated, and which was verified, the due incorporation of the company was affirmatively alleged. The counter affidavit of the owner did not deny the allegation of the petition in that respect, but simply stated that such owner had no knowledge or information sufficient to form a belief upon the subject. And the court held that, treating the . answer simply as an affidavit, it failed to contradict the positive averment of the petition, and resulted only in saying that the affiant did not know, and had not learned, whether the sworn assertion of the petitioner was true or not, which was clearly insufficient in an affidavit. And the court held that, if there was nothing in the case but the two affidavits touching the question of corporate existence, the court would be justified in acting upon the affirmative averment of the one not effectively disputed by the other. It is then suggested that if these affidavits ought to be treated as pleadings, and assimilate the proceedings to an action, as had been done in the case of Railway Co. v. Davis, 55 N. Y., 145, even then the result is not changed. Treated as an answer, there is no sufficient contradiction of the petitioner’s pleading, viewed as a complaint, for the Code provides—reproducing the amendatory act of 1875—that the corporation need not prove its existence, unless the answer is verified, and contains an affirmative allegation that the plaintiff is not a corporation; so that, in either aspect of the proceeding, the issue of corporate existence was not raised, and the court was entitled to proceed upon the uncontradicted assertion of the moving petition. If, therefore, this provision of the Code is to apply as to the fact of incorporation, no issue was raised by the averment of want of knowledge or information sufficient to form a belief. But upon an examination of § 3365, it seems to us, it will be seen that § 1776 cannot apply to these proceedings, because, by that section, it is expressly provided what an answer is to contain, and how an issue is to be raised. It says:

“ "Upon presentation of the petition and notice with proof of ■service thereof, an owner of the property may appear and interpose an answer which, must contain a general or specific denial of each material allegation of the petition controverted by him, or -of any knowledge or information thereof sufficient to form a belief."

How, it is clear that it was the intention of this section that, ■where an answer is made in the form prescribed, the right to proceed must be established by proof; and it is apparent, when we consider the nature of these proceedings, why this difference between pleadings in an action and pleadings in these proceedings should be made. In ordinary civil actions, a de facto corporation may recover. In actions for the condemnation of real property, a de facto corporation, unless it is able to prove that- it is also a •de jure corporation, cannot succeed. And, therefore, it was intended, by the denial of want of knowledge or information as to corporate existence, to put the corporation to proof of its right to take the property of another for its purposes, against his will. It was not intended to leave the question as it had been left by the decisions which existed at the time of the passage of this section. It was intended, plainly, to introduce a new system, and to provide what the pleadings should contain, and how issues should be raised. It seems to us, therefore, that the provisions of § 1776 have no application, and that an answer in the form prescribed by § 3365 raises an issue, and the corporation seeking to proceed must meet it by proof.

It is urged, however, by the respondent, that, by the admissions contained in the record as to the plaintiff’s offices, the appellant waived the averments of its answer. The question was asked by the court, “ State who are the officers of the Broadway & Seventh Avenue Railroad Company ? " and the defendant’s counsel admitted that the officers were as stated in the petition. But that admission would apply to a de facto as well as to a de jure corporation, and it was not the intention to waive the averments contained in the answer, and was not so understood. It would seem, therefore, that, without proof of the allegation in the petition, to which reference has been made, the plaintiff cannot ¡succeed in these proceedings. The order appointing the commissioners should be reversed, with costs, and a new trial had of the issues involved.

All concur.


author: Parker, J.

text:
    Arrow Steamship Company, Resp’t, v. James Gordon Bennett, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    Libel—Innuendo.
    The court will inquire whether an innuendo is warranted by the language used, considered in connection with the other facts to which they have relation, and, if found to he warranted, the demurrer will he sustained, unless the words, without the innuendo, are actionable.
    Appeal from an- interlocutory judgment overruling a demurrer to the complaint.

      John Townshend, for app’lt; Turner, McClure & Eolston (David McClure, of counsel), for resp't.
   Parker, J.

The complaint alleges ten causes of action. Of these, the ninth is not only first attacked, but is made the subject of far more extended consideration than the others, on this appeal. This indicates that the learned counsel was of the opinion, as are we, that the other causes of action alleged are still stronger than this. As we have reached the conclusion that the special term rightly overruled the demurrer as to the ninth cause of action, we shall discuss that one, only. It reads as follows :

“ (1) The plaintiff is, and was at the times hereinafter mentioned, a domestic corporation, having its principal office at the city of New York, organized for the purpose of construction, using and leasing vessels and machinery under patents, inventions and devices .owned by said company, and such as might be acquired by it. (2) The defendant, at the times hereinafter mentioned, was the proprietor and publisher of the New York Herald, a daily newspaper published at the city of New York, state of New York, which newspaper, as this plaintiff is informed and believes, is one of large circulation; so that, at the time the said articles hereinafter mentioned were published therein, the daily circulation of said paper was in the neighborhood of two hundred thousand copies, or more. (3) The prosperity, usefulness, perinancy and progress of the plaintiff company were, from the time of its incorporation, dependent, not only on the honesty, good faith and skill of its management, and of the agents in various capacities employed by it, but "also in the confidence of the public therein, and in the officers and agents who conducted the same. (4) The plaintiff further avers, on information and belief, that the defendant undertook, as hereinafter more particularly set forth, by a series of malicious and wanton attacks on the officers of the plaintiff company, and upon the trustees of said company, and upon the general management, business, objects and purposes of said company, to break down and ruin the credit and reputation of said officers and of said trustees, and the purposes and objects of said company. On the 27th day of December, 1887, the defendant maliciously published in the said New York Herald, and caused the same to be circulated throughout the Unite,d States and elsewhere, certain false and defamatory matter concerning the officers of this plaintiff, and the management and affairs of this plaintiff, and of the plaintiff itself; said false and defamatory matter being contained in an article in the editorial column of said paper, entitled ‘Real Progress in the South versus Booms,’ wherein it vías stated as follows: “When the Arrow Steamship Company went fishing for stray twenty-dollar bills, we looked through the little scheme, and told what we saw. The Arrow Steamship Company was not pleased. They even accused us of misstating facts. But they packed up their gripsack, all the same, and started for a healthier clime ’ (meaning that, after the publication of the articles above set forth, the plaintiff company conceded to the public that it was engaged in a swindling scheme, and, by reason of the publication of said articles, was forced to discontinue its business); and wherein it was further stated as follows: ‘ The Herald tells the exact truth about these things ’ (meaning the articles published as aforesaid, referring to plaintiff).’’

This is followed by allegations of damage, both general and special, and a demand for judgment.

The general rule, in determining the sufficiency of a pleading demurred to, is that it must be assumed that the facts stated therein, as well as such as may, by reasonable and fair intendment, be implied from the allegations made, are true. Milliken v. Telegraph Co., 110 N. Y., 403; 18 St. Rep., 328. Formerly, it was necessary that the complaint should contain a preliminary averment pointing out the application to the plaintiff of the matter published. But this requirement was done away with by the Code, and it is now sufficient to state, generally, that the words were published concerning the plaintiff. Section 535. If such allegation be controverted, plaintiff may establish it on the trial. Appellant insists that the plaintiff has not complied with the requirement of the Code in such respect. But his position is not well taken. The paragraph of the complaint introducing the publication of the alleged libelous matter alleges, distinctly, that defendant published, and caused to be circulated, “ certain false and defamatory matter concerning the officers of this plaintiff, * * * and of the plaintiff itself, wherein it was stated as follows.” Comment is unnecessary, for it is obvious that this allegation is in compliance with the Code. Regarding the right of a corporation to recover damages because of the use of language, spoken or written, which injuriously affects its reputation and credit, Mr. Townshend, in his work on Slander and Libel, says:

“ A corporation, like an individual, may have a reputation, and a good reputation is equally as valuable to a corporation as to a natural person; and, as an individual may sustain injury by language affecting his reputation, so, in like manner, may a corporation.” Section 262.
“ As regards a corporation engaged in manufacturing, trading, banking, or other occupation in which credit may be material to its success, there language concerning such a corporation, calculated. to inj uriously affect its credit, must necessarily occasion it pecuniary injury, and in such a case an action may be maintained by the corporation without proof of any special damage.” Section 263.

See, also, Bank v. Thompson, 18 Abb. Pr., 413; Mutual Reserve Fund Life Association v. Spectator Co., 50 N. Y. Super. Ct., 460.

It is urged that, without the innuendo, the matter averred is not libelous. The rule that the meaning of words in an alleged libel cannot be be extended by innuendo beyond their fair import, aided by intrinsic fácts with which they are connected, is invoked. It is claimed that it operates to prevent any consideration of the innuendo, and hence a cause of action is not alleged. The true rule, doubtless, is that in such a case the court will inquire whether the innuendo is warranted by the language used, considered in connection with the other facts to which they have relation, and, if found not to be warranted, the demurrer will be sustained, unless the words, without the innuendo, are actionable. Fleischmann v. Bennett, 87 N. Y., 231. The second portion of the innuendo, which alleges that the meaning of a portion of the article was “ that, by reason of the publication plaintiff was forced to discontinue business,” is clearly libelous; and the question, then, is whether such innuendo is fairly warranted by the publication complained of. If so, it follows that a cause of action is alleged. While, as we have seen, a corporation, as well as an individual, may have redress for injury done to its reputation, and, where the matters complained of are of the character presented here, each has precisely the same standing to recover for the wrong inflicted, yet the meaning of the language employed seems to be more readily apprehensible if the name of an individual be substituted in the place of a corporation. For that reason, we shall substitute, for the purpose of a brief discussion, the words “ James Jackson ” in the place of “ the Arrow Steamship Company.” Then, in an article headed “ Beal Progress in the South versus Booms,” we find it stated that, “when James Jackson went fishing for stray twenty dollar bills, we looked through the little scheme, and told what wc aaw.” Pausing for a: moment to measure the impression which the language so far quoted makes, we find that the inference is clearly suggested that the scheme which the defendant saw through, and which it felt called upon to tell about, was not a creditable one. This impression is strongly confirmed by the next sentence. After stating that it had told what it saw, the article continues: “James Jackson was not pleased. He even accused us of misstating facts'.” So far, then, tho inference may be drawn—indeed, it is required—that the article intended to inform the public that the scheme in which James Jackson was engaged was of such a character that it prompted defendant to look into it, and publish the facts, which were of such a nature that James Jackson denied them, which he would hardly have taken the trouble to have done, had they not been harmful to him. But while he accused us of misstating the facts, said the defendant, “ he packed up his gripsack, all the same, and started for a healthier clime.” Does not this assertion fairly warrant the innuendo that the effect of the publication was to compel Jackson to discontinue business in the place selected by him for that purpose ? Of what other inference is it capable ? From the statement as made, it would appear that James Jackson was attempting to do business of some kind, for it is alleged that he was looking for twenty-dollar bills, and while he was doing it the defendant published such a result of its inquiries about his business and plans, that, although he denied the accusation, still he packed up and went away. Clearly, the inference is permissible from the language employed that, by reason of the publication of said article, he was forced to discontinue his business. The innuendo was, therefore, warranted. The judgment should be affirmed, with costs and printing disbursements, with leave to the defendant to answer within twenty days after notice of the entry of the order of affirmance, and upon payment of the costs of the judgment appealed from, and this appeal.

All concur.


text:
    Joseph S. Bryce, Resp’t, v. Louisville, New Albany & Chicago Railroad Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    Pleading—Demübbeb.
    In an action upon the guaranty of a corporation, an averment in the complaint that it was made by defendant, who had authority so to do, for value received, under the direction of its board of directors, is not the statement of a mere conclusion of law.
    Appeal from an interlocutory judgment overruling the defendant’s demurrer to the complaint.

      Hawkins tfc Delajield (Eugene D. Hawkins, of counsel), for app’lt; Chambers & Baughton ( William P. Chambers, of counsel), for resp’t.
   Van Brunt, P. J.

The complaint alleges the incorporation of the defendant under the laws of the state of Indiana, and the incorporation of the Richmond, Hicholasville, Irvine & Beatty ville Railroad Company under the laws of Kentucky, and that theretofore the said last-named company duly made and executed, for value received, its negotiable coupon bond, in writing, bearing date the 1st day of July, 1889, whereby it promised to pay to the Central Trust Company, or bearer, the sum of $1,000, with interest at 6 per cent., payable semiannually, on the presentation and surrender of the coupons thereto annexed, and thereupon delivered said bond, with the interest coupons thereto annexed, to the Ohio Yalley Improvement & Contract Company, or to its order; that upon the execution of the bond, the same was certified by the Central Trust Company, as trustee; and that thereafter an instrument of guaranty of the payment of said bond and interest was indorsed on said bond by the defendant; and “ that said indorsement of guaranty was so made by defendant, having authority so to do, for value received, and the same was so made, executed, and delivered, under and in pursuance of the direction of its board of directors.” The complaint further alleged that said bond, so certified and guarantied as aforesaid, was sold to him for the sum of $900, by the then president of the defendant; and “that on the 1st day of July, 1891, there became due, for interest on said bond, the sum of thirty dollars; on the 1st day of January, 1892, the further sum of thirty dollars ; and on the 1st day of July, 1892, the further sum of thirty dollars—for all of which sums coupons were annexed to said bond ; and that said coupons were duly presented for surrender and payment, refused; and that notice of the default was duly given to the defendant.” The complaint also contained causes of action upon other similar bonds. The defendant interposed a demurrer to the complaint, upon the ground that, upon its face, the complaint does not state facts sufficient to constitute a cause of action. This demurrer was overruled, and from the judgment thereupon entered this appeal is taken.

It is now urged in support of said appeal that the defendant had no power to guaranty the bonds of railway companies in other states, of which the plaintiff had presumptive notice; and that the plaintiff’s alleged guaranty was for the accommodation of the railroad company executing the same; and that the plaintiff was charged with notice, by reason of the facts alleged with reference to the purchase of the bonds. These grounds really result in the plea that the making of the guaranty was ultra vires of the defendant corporation. "Whatever may be the result upon the trial, it is clear that no such ground can be claimed here, in view of the allegations contained in the complaint. The averment is that this indorsement of guaranty was so made by the defendant, having authority so to do, for value received, and the same was so made, executed, and delivered under the direction of its board of directors. It is urged that this allegation is a mere conclusion of law; but in this we think the learned counsel for the appellant is mistaken. It is the allegation of a conclusion of fact; and facts, not evidence, are to be alleged in a complaint. The question of authority is one of fact, although the existence of such fact may depend upon questions of law. As, for example, whether A. is the agent of B. is a question of fact; but whether certain facts constitute A. such agent may be a question of law. The existence of the agency, however, is nevertheless a question of fact. It follows, therefore, that, in view of the allegations of the complaint, the demurrer is not well taken, and the judgment must be affirmed, with costs, and with leave to withdraw the demurrer, and answer, on payment of the costs and disbursements of the appeal and costs in the court below. All concur.


text:
    David H. Houghtaling, Resp’t, v. Louisville, New Albany & Chicago Railway Company App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

      Hawkins & Delafield {M D. Hawkins, of counsel), for app'lt; Cambers & Baughton, (W. P. Chambers, of counsel), for resp't
   Van Brunt, P. J.

For the reasons stated in the case of Bryce v. Same Defendant, 57 St. Rep., 116 (decided herewith), the judgment should be affirmed, with costs, with leave to withdraw the demurrer, and answer, on payment of the costs and disbursements of the appeal, and costs in the court below. All concur.


author: Parker, J. Van Brunt, P. J. (dissenting).

text:
    Charles Buek, Resp’t, v. Metropolitan Elevated Railway Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    Appeal—Charge.
    In an action against an elevated railway company for damages, a refusal to charge, where there is evidence of special benefits, that plaintiff is not entitled" to recover except to the extent, if any, by which the disadvantages of the road have exceeded its advantages to said premises, is error.
    Appeal from a judgment in favor of plaintiff.

      Davies & Sapallo (Julien T. Davies and Brainard Tolies, of counsel), for app’lts; William G. Peclcham, for resp’t.
   Parker, J.

In Bohm v. Railway Co., 129 N. Y., 576; 42 St. Rep., 247, the court, having under consideration a judgment awarding damages to an abutting owner because of the defendants’ interference with his beneficial enjoyment of certain easements belonging thereto, held that the damages and the compensation to be paid in such case are measured by the balance of injury over benefits ; and in ascertaining them the advantages and the disadvantages are to be considered, and the benefits, whether general or special, form the construction and operation of the railroad, which tend to counterbalance the disadvantages, are to be taken into account in reaching the final result. And it has been held in subsequent cases that a refusal by a referee or trial court to find, upon being requested to do so, that the law is on that subject as stated in Bohm’s case, constitutes ground for reversal of the judgment if properly excepted to; the reason assigned being that, as the request to find states correct principles of law, a refusal to find it requires the inference that these principles are not fully applied, and thereby necessarily the defendant is deprived of the full benefit of them. Sperb v. Railway Co., 137 N. Y., 596; 50 St. Rep., 664; Livingston v. Railroad, Co., 138 N. Y., 76; 51 St. Rep., 660 ; Odell v. Railroad Co., 130 N. Y., 690; 42 St. Rep., 591; Gray v. Railway Co., 12 N. Y. Supp., 542 ; 35 St. Rep., 32.

The defendant requested the trial court to rule as a matter of law that “ plaintiff is not entitled to recover damages in this action, except to the extent, if any, by which the disadvantages of the defendants’ railroad have exceeded the advantages thereof to said premises.” The court refused, and to the ruling an exception was duly taken. The cases to which we have referred determine-that this ruling was erroneous, and command a reversal of the judgment, unless it appears elsewhere in the record that the rule embraced in the proposition was recognized and given force and effect by the trial court In Bischoff v. Railroad Co., 138 N. Y., 257; 52 St. Rep., 374, the court refused to reverse a judgment where the trial court had declined to rule substantially as requested here, but on the ground that there was no evidence of general, as distinguished from special, benefits, resulting to the property by the construction and operation of the railroad. If that were the case here, or if the findings disclosed that the trial court actually applied that which the courts have determined to be the true rule in measuring the damages which should be awarded, Bischoff’s case would point the way to an affirmance of the judgment, for under such circumstances the exception would point out a technical but unsubstantial, error. But it cannot be said here that there was no evidence before the court tending to show what is called general benefits resulting to this and other property in the same vicinity by the building and operation of defendant’s elevated railroad. Evidence tending in that direction can be found scattered all through the record; therefore the ruling cannot be disregarded on the ground that there was no evidence making it necessary for the trial court to apply the rule involved by the request. Ñor does it appear from the other findings made by the trial court that this rule was in fact applied. Until the decision in Bohm's case the courts had not gone so far in the direction of offsetting advantages against disadvantages ; the furthest step in that direction, prior thereto, having been taken in Newman v. Railway Co., 118 N. Y., 618; 30 St. Rep., 36, in which cdse it was held that in measuring the damages there, must be taken into consideration the benefits, if any, peculiar to the owner’s property which have arisen by the •construction of the road. The case under review was tried after the decision in Newman's ease, but before that of Bohm's, and the court, following the practice as it was then understood and applied by the courts, ruled as a matter of law that “ in estimating the damages, if any, to which, the plaintiff is entitled in this action, and in estimating the amount of compensation to which plaintiff is entitled for the taking of his easements, the benefits caused by defendants’ railroad to plaintiff’s said property, and not shared by the community in general, should be taken into consideration and refused to rule in the manner requested by the defendants, as hereinbefore quoted. It is apparent, therefore, that the inference is not permissible here, as in Bischoff’s case, that the court did not exclude from consideration the evidence presented by the defendants touching general, as' distinguished from special, benefits to plaintiff’s property, resulting from the construction of defendants’ elevated railroad. If the views expressed are correct, it follows that the judgment should be reversed, with costs to appellant to abide the event.

Follett, J., concurs.

Van Brunt, P. J. (dissenting).

I think the judgment should be affirmed. It seems to me to be impossible to determine from the decisions of the court of appeals what the rule is in respect to refusals to find, and the court did not err in its refusal to find a rule of law.


author: VAN Brunt, P. J.

text:
    William Campbell, Resp’t, v. Joseph Hughes et al., Imp’ld, etc., App’lts.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    Limitation—Accounting.
    In an action for an accounting, a counterclaim for damages, arising from a breach of the partnership agreement by one partner, cannot be defeated by a plea of the statute of limitations.
    Appeal from a judgment sustaining plea of statute of limitations interposed to the counterclaim.

      Stedman & Larkin (J. Larkin, of counsel), for app’lts; Spink & Martin, for resp’t.
   VAN Brunt, P. J.

This action was brought to obtain an accounting upon the part of the members of the firm of Harris, Hughes & Co. in respect go their copartnership transactions. The defendants Harris and Hughes, set up the defense of a release and a counterclaim against the plaintiff and their codefendant, Temple,, seeking to recover damages because of a' breach of the copartnership agreement. Upon the trial of the action the court found that the counterclaim was barred by the statute of limitations,, and awarded judgment for an accounting, appointing a referee to take and state such accounts; and from such interlocutory judgment this appeal is taken.

Various points have been raised upon this appeal which it is not at all necessary to consider, in view of the conclusion at which we have arrived upon the question of the statute of limitations. The ground upon which the decision of the learned court below was placed in respect to this issue seems to have been that the counterclaim alleged in the answer was simply an action at law to recover damages for a breach of contract, and, as it did not occur within six years, the statute of limitations ran. In arriving at this conclusion, it seems to us the court failed to' recognize the relations between the parties, and the true nature of the defense. It may possibly be that the defendants Harris and Hughes could not have maintained an action for damages against their copartners, unless the same was brought within six years from the time of the accruing of such cause of action; but when a claim is made against them, based upon the partnership agreement, there seems to be no reason why they may not offset, against such claim damages arising to them by reason of a breach of the partnership agreements by the claimants in such an action. This action was brought to obtain a settlement of the partnership transactions of Harris, Hughes & Go., and such settlement must take place under 'the partnership agreement. How, the defendants, Harris and Hughes, seek to recover damages by reason of a breach of the co-partnership agreement; and those defendants have the undoubted right to offset against any claim which may be established hy the plaintiff under the agreement such damages as they have sustained by reason of the breach of such co-partnership agreement by the plaintiff, as both causes of action arise out of the same transaction; viz., out of the partnership agreement. In this view, the facts set up as a counterclaim do not constitute an independent cause of action, having no relation to the cause of action set out in the complaint, because both arise out of the same instrument, one to enforce its provisions, and the other seeking damage because of the breach of its provisions. Certainly, the plaintiff cannot have the same rights under the partnership agreement, if he has violated its provisions to the damage of his copartners, as though he had complied with its terms, and had been guilty of no-wrong. All the rights of the partners under the agreement must be settled in this action, and the rights of one partner cannot be cut off by the statute of limitations, and those of another, under the same instrument, be enforced against him. It should be borne in mind that this action is an action in equity, and the question involved is: What, in equity are the rights of the parties, and what, in equity, should the defendants be compelled to pay the plaintiff? ” And if, because of any equitable considerations, the plaintiff should not be allowed to use the process of a court of equity for a recovery, such relief must necessarily be denied him. The maxim which is the foundation of all equity jurisprudence is that he who seeks equity must do equity. We are of opinion that the court erred in denying the defendants Harris and Hughes any relief on their plea of a violation by the plaintiff and his codefendant, Temple, of the copartnership agreement between the parties to the action. The judgment should be reversed, and a new trial ordered, with costs to the appellant to-abide the event.

All concur.


author: Per Curiam.

text:
    Frederick P. Forster, Resp’t, v. Elizabeth Moore, Impl’d, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed November, 17, 1893.)

    Receiver—Mortgage foreclosure.
    After the vacation of the appointment of a temporary receiver in fore closure proceedings, the court may, instead of directing the rents to he paid to the mortgagor, order the receiver to apply them first to the payment of interest on prior mortgages.
    Appeal from an order denying the motion of the mortgagor to compel the receiver to pay over to her rents collected by him.

      Robert J. Robeson, for app’lt; Forster & Spier, for resp’t.
   Per Curiam.

This action was begun in February, 1893 (the precise date not appearing), for the foreclosure of a third mortgage on real estate, and on the 27th of that month an order was made directing that the appellant be served by publication; and on the same day James L. McNeirny was appointed temporary receiver, pursuant to § 714 of the Code of Civil Procedure. The summons and complaint were personally served on the defendant’s husband March 3, 1893, seven days after the order of publication was made, and on the appellant March 29, 1893. On the 14th of April, 1893, the order authorizing service by publication, and the order appointing the receiver, were vacated by the general term. Foster v. Moore, 68 Hun, 526 ; 52 St. Rep., 662. The order appointing the receiver is not a part of the record, nor are its terms disclosed. Prior to April 21, 1893, the receiver collected rents to the amount of $631.20, and had expended $128.55. On the 21st of April, 1893, a motion was heard in behalf of the plaintiff, asking that McNeirny be appointed receiver, and that he be allowed to retain the moneys collected under the prior order.

On the same day a motion in behalf of the appellant was heard, asking that the moneys collected by the receiver be paid over to her. In one of the appellant’s moving affidavits it is averred: The defendants Moore have both answered the complaint herein, denying the making of the alleged bond and mortgage described in the complaint, upon which this action is brought, and deponent will use said pleadings on this motion.” The pleadings are not in the record. It is stated in an affidavit made by the defendant’s husband, on which the appellant’s motion was heard, “ that the interest on the first mortgages on said premises is due on May 1, 1893, and deponent’s wife wishes to use. the money which said MdNeirny collected for the purpose of paying said interest, which is about $500.” The mortgaged property is a flat heated by steam, and occupied by tenants. The plaintiff’s motion for the appointment of a receiver was granted, and the receiver was ordered “ to keep said premises in repair; to pay for gas, coal, also the taxes, assessments, water rates, and interest on prior mortgages upon said premises.” The appellant’s motion was denied. Instead of the matter in controversy being disposed of by a single order, two were entered; one granting the plaintiff’s motion, and the other denying the appellant’s. From the latter order Mrs. Moore has appealed. It is evident that the court directed that the rents be applied on the prior mortgages because the validity of the mortgage in suit was contested, and because Mrs. Moore, in her moving papers, stated that she wished so to apply the rents.

If the court should reverse the order appealed from, and grant the motion, the order appointing the receiver would be left standing, and there would be conflicting orders. It appears that the bond accompanying the mortgage in suit contains a clause that the mortgagee, in case of foreclosure, may take the rents by the aid of a receiver, but neither the bond nor mortgage is in the record; and we think, under a record which does not clearly disclose the rights of the parties, that we ought not to order the rents to be paid to the mortgagor. The order of the court directs the moneys to be applied precisely as the mortgagor stated in her moving papers that she desired to apply them, except the receiver is authorized to apply them in payment of taxes, assessments, water rates, and current expenses. If the moneys collected by the receiver are applied on the prior mortgages, the desire of the mortgagor will be effected, and the rights of all parties will be protected pending the litigation. The order appealed from should be modified by directing that the receiver apply all moneys collected by him under the first order in payment of any sums due on the prior mortgages, and as so modified affirmed, without costs to either party.