author: Bookstaver, J.

text:
    Patrick Skelly, Resp’t, v. The New York Elevated Railroad Company et al., App’lts,

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    1. Evidence.—Judicial notice.
    The court may take judicial notice of the general direction of the streets in the city of New York, and where they begin and end.
    2. Same.
    The courts will take judicial notice that the elevated railroads increase the traffic in broad avenues and generally promote and increase the business therein, etc.
    3. Damages.—Elevated bailboads.
    Where property has not increased in value to the same extent that it would llave done hut for the erection and operation of the road, this is a fact which shows damage.
    4. Appeal.—Request to find.
    A request to find either facts or law should he plainly stated in a proposition, so that the whole of it can he either granted or refused.
    5. Same.—Revebsal.
    A judgment, in an action against an elevated road, should not be reversed, if, upon the whole record, the court can see that no harmful error was committed, and that the proper principles of law were not misapprehended or misapplied.
    6. Evidence.—Elevated bailboads.
    In an action against an elevated railroad, the opinion of a witness as to the cause of the appreciation of the property, is inadmissible.
    7. Same.
    In such an action, the defendant’s offer of the application of plaintiff to a hank for a loan upon the premises in question, and the bank’s appraisement of the value of the premises, is properly excluded.
    Appeal from a judgment rendered at an equity term of this court.

      Davies, Short & Townsend (Julien T. Davies and Ezra A. Tuttle, of counsel), for app’lts; Johnston & Johnston (Eugene D. Hawkins and Edward W. S. Johnston, of counsel), for resp’t.
   Bookstaver, J.

This action was brought by the plaintiff as the owner in fee of the premises Nos. 21, 23 and 25 Ninth avenue (between Little West Twelfth street and Thirteenth street) for an injunction and damages by reason of the erection, maintenance and operation of defendant’s road. It is the usual abutting property owners’ action about which so much has been written that there is little or nothing to be said in further elucidation of the law governing such cases.

Appellants contend that the court erred in refusing to find defendants’ seventeenth, eighteenth and nineteenth requests which are to the effect that the presence of defendants’ station at Fourteenth street brings a larger number of persons daily into Ninth avenue, and in the immediate neighborhood of these premises, and increases the traffic in and upon the avenue at this point. And that the result of the proximity of defendants’ station at Fourteenth street to the premises in suit is advantageous to the business portion of said premises and produces a special benefit to the same for business and which is equal to and off-sets any disadvantage to the dwelling apartments in said premises occurring from the maintenance and operation of the railroad.

The court found that this station did bring a larger number of persons daily into Ninth avenue in the immediate neighborhood of plaintiff’s premises but refused to find as requested in all other respects. The court might well have refused to find the proximity of the station increased the “ traffic in and upon the avenue at this point ” as too indefinite. The request is so framed as to leave it doubtful whether the “point” referred to was Ninth avenue at the station or at plaintiff’s premises; if the former, it was wholly immaterial to the issue, if the latter, we do not think the fact established by a clear preponderance of the evidence.

It must be borne in mind respecting this and the other refusals to find before stated, that this was an old settled neighborhood long before the advent of defendant’s road ; the houses on the lots in question having been built in 1842 as dwellings. The whole vicinity was as late as 1870 used almost exclusively as a residence neighborhood and was thickly built up. • About that time it began to change from private dwellings to stores and tenements, warehouses, storehouses and manufactories, which change is still going on in some portions of that vicinity.

This change began not along the line of Greenwich street, some parts of which are still used for residence purposes, notwithstanding defendants’ road runs through it, but commenced in Hudson street, from which it spread to Ninth avenue above Fourteenth street where Hudson street terminates in Ninth avenue. Thus conclusively showing that the change from residence to business purposes was not due to the railroad, but antedated.it and did not follow the line of the road, but another street from which it spread uptown along the line of defendants’ road and not down. The reason for this is not far to seek. We may take"judicial- notice of the general direction of the streets in the city of New York, and where they begin and end; both because such facts are within the general knowledge of its citizens and the plan of the city has been approved by law and is laid down on public maps. Brady v. Page, 59 Cal., 52 ; Gardner v. Eberhart, 82 Ill., 316 ; Vanderwerker v. The People, 5 Wend., 530. Fourteenth street crossing Ninth avenue at right angles is a business street from river to river, with the exception of a few dwellings, and diverts much travel. Hudson street runs into Ninth avenue on a slight angle at Fourteenth street in immediate proximity to the station; for many years this has been the chief downtown thoroughfare on the west side of the city as far as Chamber street, while Greenwich street, which is a continuation of Ninth avenue -from the point where they come together at G-ansevoort street, although nearly parallel with Hudson street, has not been so much used as a business thoroughfare.

Again, Gansevoort street, of late years, for reasons which will be hereafter stated, has diverted a great deal of travel through it, thus leaving three blocks of Ninth avenue between Gansevoort street and Fourteenth street, including that on which plaintiff’s premises are situated, comparatively little used; and hence it follows that there has been no such increase of travel and traffic on 'that part of Ninth avenue as usually results from proximity of stations on wide avenues. In arriving at this conclusion, neither the court below nor this court has overlooked the rule laid down in Bookman v. N. Y. Elevated Railroad Co., 137 N. Y., 302; 50 St. Rep., 703, and Sutro v. Manhattan R. Co., 137 N. Y., 592; 50 St. Rep., 701.

We fully recognize the fact that the nature and operation of the elevated railroads is so notorious that the courts may take judicial notice that they increase the traffic in broad avenues and .generally promote and increase the business therein, and that the inconveniences and annoyances incident to the operation of the road may be, and in the case of business property especially, are quite likely to be offset, in whole or in part, by the increased facility of access afforded by the elevated system, thereby mitigating or preventing actual loss, and that in such cases it would be inequitable to estimate and award damages irrespective of benefits. But while this is generally true of all property on the wide avenues well uptown, where the population was sparse before the advent of the elevated system, and facilities of access and departure have been greatly increased thereby, there are exceptions to it even on wide streets lower down town where the population was dense and facilities for arrival and departure ample before the road was built, and we think the facts established by the testimony in this case show it to be one of these exceptions.

It is evident, both from his findings of fact and conclusions of law, that the learned judge who tried this case was conscientiously endeavoring to apply the rule laid down in the Newman Case, 118 N. Y., 618; 30 St. Rep., 36, and the Bohm Case, 129 N. Y., 576; 42 St. Rep., 247, and reaffirmed in the cases supra, to the facts before him, for he found as a fact that the presence of the defendants’ station at Fourteenth street brings a large number of persons daily into Ninth avenue in the immediate neighborhood of the premises in question, while he refused to find as a fact that this number increased the traffic upon the avenue in front of plaintiff’s premises. It is true he did not give his reasons for this refusal although the presumption was, it would in most cases increase the traffic, but he was bound to do so, if the facts and inferences (some of which we have attempted to give briefly), warranted, him in so doing. That he had the rule in mind is further apparent from his rulings upon the questions of law submitted to him by the defendants in their favor, among which were the following: “ 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; ” also, “ the plaintiff is not entitled to more than a nominal-sum,for compensation for the easements appurtenant to the premises taken, appropriated or interfered with by the construction and maintenance of the elevated steam railway unless he has proved that the physical interference with said easements has resulted in substantial pecuniary injury to the market fee value of the premises, the burden of showing which was upon him.”

Also to the effect' that plaintiff must show that “ the actual market fee value” of his premises would have been greater if the road had not been built before he could recover more than nominal damages; also, “ that the sum which the defendants might pay to obviate any injunction should not exceed the damages resulting to the remainder of plaintiff’s premises from defendant's appropriation of so much of the easements of light, air and access as have been taken for the purposes of maintaining and operating their elevated railroad.”

On the submission of the case the defendants presented a series of requests to find, to the effect that there had been no depreciation in the rental value of plaintiff’s premises since the defendant’s railway had been maintained and operated in front of them, that there had been no depreciation in the rental value of plaintiff’s premises since he purchased the same, and that the fee value of plaintiff’s premises had not decreased since he acquired title thereto ; to which the court answered by finding that the rental value of plaintiff’s premises had not been less than it was before the roads were operated, and not less than it had been since the plaintiff purchased the same, and that the fee value had not been less than it was prior to the time of his purchase. He also found that the fee value of the premises in question had increased since the plaintiff acquired title thereto, and also had increased after the date of the erection and operation of the railroad. And appellants now contend that the judgment rendered in this case is inconsistent with these findings, arguing that since the rentals had not decreased and the value of the fee; had actually increased, the maintenance and operation of the railroad could have been of no damage to the premises; which we think is not well founded, and assumes that the fee and rental values of property in this city will remain stationary no matter what had affected such values before the building of the road, and leaves out entirely the facts proved on the trial, which we have before referred to, and also the further fact of the recent establishment of the Farmers’ and Gansevoort markets in its near vicinity. One of plaintiff’s witnesses testifies that since the establishment of these markets, property in Thirteenth street, between Ninth and Tenth avenues, has risen inore than two hundred per cent.; in Little Twelfth street, between the same avenues, property has risen from $5,000 or $6,000 to $16,000 and upwards; in the same street, between eighth and ¡Ninth avenues, lots have risen from $7,000 to $12,000; and in Eighth avenue, below Fourteenth street, further east than plaintiff’s property, there has been a rise of from forty to fifty per cent, in the value of property.

Another witness testifies to three successive sales of a plot in Thirteenth street, between ¡Ninth avenue and Washington street, on which there were some old tenements and an abandoned foundry, the first of which was in 1874 sold for $24,500 ; in 1881 for $29,700, and in 1882 for $69,200. While there is testimony in the case that the value of plaintiff’s property on ¡Ninth avenue has not increased more than fifteen per cent, or much less than the rise as far east as Eighth avenue, and it seems to us from the evidence in the case that the chief reason for the failure to advance with other property in the neighborhood can be attributed to no other cause than the maintenance and operation of defendants’ road. ' The testimony offered of the appellant on the same subject varies greatly as between the different witnesses, and the same witness even, testifies in a contradictory manner concerning the value of the same property at the same time. ¡Now, there is a nearly uniform relation between fee and rental values of property in this city, which is from seven to eight per cent., and on this basis of fee value, it is apparent that the present rentals are a good deal below what they should have been but for defendants’ road. On a review of all the evidence, we think the court was fully justified in coming to the conclusion it did as to the effect of the railroad on fee and rental values. In Becker v. Met. Elevated R. R. Co., 131 N. Y., 511; 43 St. Rep., 726, it was said: “ If it (the property) had not increased in value to the same extent that it would have done but for the erection and operation of the road, that is a fact which shows damage. What we now say is, that evidence that the value of land on the avenue has not increased in the same proportion as land in the side streets is admissible, and may be considered in connection with the other evidence in the case, upon the question of fact, whether the land of the owner ,has increased in valúe to the same extent that it would have done but for the presence of the road * * * In the nature of the subject, proof of a possibly greater value attaching to the property but for the building of the road is difficult and somewhat shadowy and vague.”

The appellants further contend that the court erred in refusing to find defendants’ 13th conclusion of law, as requested by them, which was to the effect that in estimating and fixing the sum which the defendants might pay to obviate the injunction herein, the special benefit resulting from the operation of defendants’ railroad to the premises in suit should be offset against any consequential damages resulting to said lot and building from the appropriation or interference with the easements in ¡Ninth avenue, appurtenant thereto, by the maintenance and operation of defendants’ railroad in front thereof. This the court very properly refused because it had before found as a fact on sufficient evidence that no special benefits to plaintiff’s property resulted from the railway.

And for the reasons before given, there was no error in the court’s refusing to dismiss the complaint either upon the plaintiff’s case or upon all the evidence offered.

Appellants also contend that the court below erred in finding in the 19th paragraph of findings of fact that “ the structure is boarded over between the tracks ” insisting that this is absolutely repugnant to the fact and is wholly unsupported by any evidence in the case. If this were so, it would not be surprising that the learned judge had made such an error in the multiplicity of findings requested by the parties hereto. In the case at bar, the defendants made thirty-six requests to find facts and twenty-one requests to make rulings upon questions of law; and in addition, they asked that if the court refused to find any one of the findings of fact, that it should find the same as a ruling upon a question of law, and the same request was made as to proposed requests for rulings upon questions of fact, and also that each sentence of each proposed finding was proposed separately the same as if separately numbered. We have not had the patience to compute the entire number of requests to find and conclusions of law submitted according to these proposals. In Steubing v. N. Y. El. R. R. Co., 138 N. Y., 658; 53 St. Rep., 186, the court says: “ This is a practice not to be tolerated. The large number of requests are generally quite embarassing to the courts. But when the same matter is requested to be found both as facts and law, it duplicates all the specific findings requested, and the number is still largely increased when every sentence is also requested to be found both as fact and law. Such a practice is not needful for the protection of the rights of any party, and the tendency must be to ensnare the trial judge and frequently to defeat the ends of justice by inducing mistakes, confusion and uncertainty into the records of cases brought up for review.

Proper practice requires that a request to find either facts or law should be plainly stated in a single proposition, the whole of it can be granted or refused, and any modification of the requested finding should be left to the discretion of the trial judge. And the court has therefore held that where a request to find embraces several propositions, some of which the party making the request is entitled to have found, and some not, the refusal of the request is not error; and therefore says : “There is considerable difficulty attending the trial of this class of cases, and a judgment should not be reversed, if upon the whole record we can see that no harmful error was committed, and that the proper principles of law were not misapprehended or misapplied. See, also Struthers v. N. Y. El. R. R. Co., 54 St. Rep., 785; and we think this is specially applicable to this case. We do not see how this finding, even if unsupported by evidence, could or did in any way injure the defendants. The testimony is clear that the nearest' rail of the structure is not nearer to the plaintiff’s house-line than 36 feet. The finding itself is obscure. The whole sentence reads, “ The structure is boarded over between the tracks, and between the rails of the tracks there are ties running at right-angles with the lines of the house.” But a reference to the testimony of Mr. Osborn and the diagram, PMs. Ex. A., which is referred to in the index of this case as printed, but which is not, and which we have consulted as we have a right to do, it being on file in this court, shows that the elevated railroad in front of the premises in suit, is composed of two independent structures, one for the uptown trains and the other for the downtown trains, and that between the two sets of tracks on each of these structures, it is boarded over, so that the finding is supported by unquestioned testimony.

This disposes of all the exceptions to the findings of fact and conclusions of law urged upon the argument of this appeal, and in appellant’s brief.

Besides these, two exceptions to the exclusion of evidence were argued by them. The first respects the exclusion of the opinion of one of plaintiff’s witnesses as to the cause of the increase in the value of lots west of Ninth avenue and adjacent to Gfansevoort Market. When the propriety of this question was urged before the trial judge, counsel was asked by the court, 11 Is not that one of the questions to be determined in this action ?” to which defendants’counsel replied, “I think not. As I understand, the rulings of the court of appeals is this: That we cannot ask what ■would have been the value if the road had not been built, which is the conclusion for the court to draw. But it seems to me to be entirely proper for me to show all of the facts, circumstances and conditions.” To which the court replied, and as we think very properly : That you may show ; but that is not what you are asking for. You are asking for the opinion of the witness as to the cause of the appreciation of the property; when, if the witness had been asked to state his opinion as to the cause of the depreciation, it would have been directly within the rulings of the court of appeals.”

The defendants offered proof of the application of plaintiff to the Union Dime Savings Bank for a loan upon the premises in suit, and the bank’s appraisement of the value of the premises, which was excluded. Mr. Leake, the secretary of the Union Dime Savings Institution, was then on the stand, and most of the questions asked were ruled out because he had no personal knowledge of the matters inquired of. But the papers themselves were in no sense evidence. As we understand them, they were not under oath, were prepared merely for the purpose of procuring a loan ; it was a matter entirely foreign to anything connected with the issues in this case, and for this reason, the plaintiff’s statement contained in them could not be taken as an admission as against his interests in this action.

The judgment should therefore be affirmed, with costs.


source: Caselaw Access Project

author: Bookstaver, P. J.

license: Public Domain

text:
    Bertha Zinc and Mineral Company, Resp’t, v. Frank M. Clute, as Assignee for the Benefit of the Creditors of Lucius Hart, Impleaded, etc., App’lt.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    1 Affidavit—Complaint.
    A complaint, wherein the allegations are made unqualifiedly, that is, not on information and belief, and are sworn to be true, will be treated as an affidavit upon an application for an injunction.
    2. Injunction—When granted.
    A state of facts which establishes that the defendant is about to do an act in violation of plaintiff’s rights as tending to render a judgment ineffectual, is sufficient to sustain an injunction.
    3. Same.
    An injunction pendente lite will be granted to prevent dispersion and in termingling of a specific fund.
    4. General assignment—Factor.
    Debts due a factor for consigned goods sold by him, after his expenses and charges have been paid, do not pass to the assignee of such factor under a general assignment for the benefit of creditors.
    5. Corporation—Foreign—Certificate.
    A certificate, under section IS, chap. 687 of 1892, is not required before a foreign corporation can safely consign its goods to a citizen of this state for sale for it.
    Appeal by the defendant, Clute, as assignee, from an order made at special term, denying a motion to vacate an injunction during the pendency of the action.

      Hatch & Wiclces, for Clute, app’lt; Butler, ■Stillman & Hubbard {Adrian H. Joline, of counsel, for resp’t); Thomas W. Peyton, for defendant, Hart.
   Bookstaver, P. J.

This action was commenced on the 16th of August, 1893, by the service upon the defendants, Hart and Clute, of copies of the injunction order herein and the papers on which the same was granted, together with the undertaking on injunction and the summons and complaint. On the twenty-ninth of the same month, the defendant, Clute, as assignee, moved to vacate the injunction ordér upon the papers upon which it was granted, which was denied, and from that order this appeal is taken. As the motion was made upon the papers upon which the injunction was granted, the allegations in those papers must be taken as true. From them it appears that the plaintiff is a foreign corporation ; defendant, Hart, was doing business in the city of New York under the firm name of Lucius Hart & Co.; this concern was plaintiff’s agent, selling goods manufactured by it on commission; those sales were generally made in its _ own name, but deliveries were made from a stock of metal kept in its hands by plaintiff; bills for the goods so sold were also made out in defendant’s name and collections made by it, and it rendered monthly accounts, paying plaintiff the net amount after deducting freights, commissions, etc.; all sales were guaranteed by Lucius Hart & Co., for which that concern received a commission. On the 20th of June, 1893, the defendant, Hart, individually, and as the firm of Lucius Hart & Co. made a general assignment for the benefit of creditors, to the defendant, which was duly acknowledge and recorded. On June 23, 1893, the plaintiff gave notice to Clute of the fact that Hart had acted solely as its agent in making sales, and demanded the delivery of the stock of metal on hand and also the proceeds of sales collected and unaccounted for, and the transfer to it of all uncollected debts. Clute delivered the metal belonging to plaintiffs, then on hand, but refused to recognize any claim to the proceeds of the sales of metal whether collected or uncollected by Hart & Co.

The papers further show that Clute as assignee has since the assignment collected a portion of the outstanding sales, and that a portion still remains uncollected. Plaintiff claims that it is entitled to these proceeds of sales, and that such proceeds ought not to be regarded as a part of the general assets, and also claims •that it is entitled to the proceeds of the uncollected accounts, or, if they shall be collected by the assignee, that they should be -collected for plaintiff’s benefit. Plaintiff also shows that it is apprehensive that unless enjoined by the court, the assignee will divert the proceeds of sales collected, or to be collected, or will mingle the same with the general assets of Lucius Hart & Co., so that they cannot be distinguished, whereby the plaintiff would sustain irreparable damage. The judgment prayed for is that the rights, liens and equities in respect to all proceeds of sales collected and uncollected may be established ; that the rights of the plaintiff to the proceeds of any sale of its goods may be adjudged to belong to it; and that defendant may be restrained from inter-meddling with or intermingling the proceeds of sales of its goods with the general assets of Lucius Hart & Co., and from not now •separating and keeping separate accounts of such proceeds, and from collecting any of the outstanding accounts except for the benefit of the plaintiff, and from mingling any sums hereafter ■collected with the general assets of Lucius Hart & Co.

This injunction was not granted under' § 603 of the Code, as .appellant contends, but as we conclude from the injunction order itself; the complaint and the affidavits upon which it was granted, ■under § 604 of the Code of Civil Procedure, in which case the preliminary injunction may be granted at the time of issuing the summons. But he contends that if it was granted under that section, then that no facts sufficient to warrant the granting of the order of injunction pendente lite were shown by affidavit. Where in the complaint the allegations are made unqualifiedly, that is, not on information and belief merely, and are sworn to as true, it will be treated as an affidavit; Code, § 3343, subd. 11; Roome v. Webb, 3 How., 327; Benson v. Fash, 1 C. R., 50; Minor v. Terry, 6 How., 208; Penfield v. White, 8 id., 87; Woodruff v. Fisher, 17 Barb., 224; Jones v. Atterbury, 1 C. R. N. S., 87; Levy v. Levy, 6 Abb., 89; Hecker v. Mayor, 18 id., 369; Cushing v. Buslander, 49 Hun, 19; 17 St. Rep., 245.

The complaint in this action was so sworn to, except “ as to -matters therein stated to be alleged on information and belief and that as to those matters he believes it to be true.” Now, all the allegations in the complaint are stated as of the knowledge of the president of the corporation except some in the fourth and fifth paragraphs, which are stated to be upon information and belief, and these are stated in the affidavit of Mr. Moxham, the general agent and manager of the plaintiff, to be within his knowledge, except as to certain amounts collected and uncollected which he swears he obtained from the books of Lucius Hart & Co. From the positive allegations of the complaint it appears that “ the said defendant Frank M. Clute as assignee as aforesaid, has declined to recognize in any manner the rights, liens and equity of the plaintiff of, in and in respect to the outstanding and uncollected accounts for said metal sold, or in and to such proceeds of sale collected by said assignee subsequent to said assignment”; and further, “ Plaintiff further shows that it is apprehensive that unless enjoined and restrained by order of this court, the said defendants, or some one of them, or the said assignee, will divert the proceeds realized and collected from the sale of said metal of the plaintiff and the proceeds of sale which shall thereafter be collected, or will mingle them with the general assets of said firm of Lucius Hart & Co., so that the same cannot be identified or distinguished whereby this plaintiff will suffer and sustain irreparable loss and injury.” We think as the learned chief justice has well said in his opinion upon granting the injunction: “ It is to be inferred from his (that is, the assignee’s,) refusal to recognize the right of plaintiff, the consignor, to the proceeds of sale of the consigned goods, that he regards such proceeds as part of the assigned estate of the assignees, and it necessarily follows that he will dispose of them as such, in which case any judgment directing him to account therefor may be ineffectual.” Such a state of facts is sufficient to sustain an injunction upon the ground that the defendants are about to do an act in violation of plaintiff’s rights as tending to render a judgment ineffectual. This is a specific fund; the collections can all be traced upon the books, and the persons from whom uncollected book accounts are due for Bertha Spelter can also be ascertained. Under all the authorities an injunction will be granted pendente lile to prevent dispersion and intermingling of such a fund. Keller v. Payne, 16 St. Rep., 245 ; Bates v. Plonsky, 28 Hun, 113; Holmes v. Davenport, 14 N. Y. Supp., 738.

A voluntary assignee for the benefit of creditors is not a bona fide purchaser; he takes subjects to all equities and has no greater rights in the assigned estate than his assignor had ; it comes into his hands charged with all the equities existing with respect to it at the time of the assignment; Burrill on Assignments, 6th. ed., 478, and cases cited; Van Heusen v. Radcliff, 17 N. Y., 580 ; Chase v. Chapin, 130 Mass., 128 ; Hathaway v. Bank, 131 id., 14; Merrill v. Thomas, 7 Daily, 393. As to goods consigned, if they were not sold at the time of the assignment, they did not pass-to the assignee; White v. Platt, 5 Den., 269-273. Debts due a factor for consigned goods sold by him, after his expenses and charges have been paid, do not pass to the assignee of such factor under a general assignment for the benefit of creditors, and the assignee cannot be enjoined at the suit of a creditor of the factor, from paying over to the consignor the proceeds of such debts collected by the assignee. In such case, this court has held in Springville Man. Co. v. Lincoln, 16 Daly, 324; 32 St. Rep., 668, that the assignor may proceed and collect the debts himself.

The contention by appellants is that the plaintiff as a creditor of Lucius Hart & Go., would be entitled to notice of any proceedings in which the account of the assignee could be settled and the funds in his hands paid out and distributed, and that therefore' this action is unnecessary and improper and without any force whatever. Hot only the property, but the funds collected and to be collected belonging to the plaintiff, he is not bound to wait a year or any other length of time in order to obtain his property or its proceeds. He has a right to them at once.

For the same reason the contention that he has given a bond to which the plaintiffs can look if he improperly performs his duty as assignee, is also without force.

The contention of the appellants, as to a portion of the order is too refined for us to follow or appreciate. As we read the order, the portion criticized merely restrains the assignee from mingling the funds of the plaintiff with the general funds. This was certainly an essential part of the order under the circumstances of the case.

Hor do we appreciate the contention that any part of it is too vague and. uncertain in its terms. The part criticised in this respect seems to us clear, and to restrain the assignees from collecting funds not now collected except for the benefit of the plaintiff, which he is permitted to do; and this certainly any man, without advice or intricate process of reasoning, can well understand.

The construction we have put upon the portions of the injunction order criticised brings it expressly within the provisions of the undertaking given upon the issuing of that, order, and if it is eventually found that the injunction should not have been granted, the undertaking will be ample to afford the assignee every indemnity he may be entitled to.

Appellant also contends that the complaint does not state that the plaintiff has procured a certificate of authority as required by section 15 of chapter 687, Laws 1892, and within its terms cannot maintain this action. It is quite true that -the complaint does show that the plaintiff is a foreign corporation, but it does not in terms state that it is a joint stock corporation, nor is there anything in,the papers which makes this appear affirmatively. As the point taken is extremely technical, this might be a sufficient answer to the objection. But we prefer not to rest it upon that ground. The section referred to, among other things, provides : “Ho such corporation (i e., foreign joint stock corporation) now doing business in this state, shall do business therein after December 31st, 1892, without having procured such certificate from the secretary of state ; but any lawful contract previously made by the corporation may be performed and enforced within the state subsequent to such date. No foreign stock corporation doing business in this state without such certificate shall maintain any action in this state upon any contract made by it in this state until it shall have procured such certificate.” It nowhere appears from the papers in this case that plaintiff ever made any contract with Lucius Hart & Co., or any other company or person within this state.

On the other hand, it expressly declares that the usual and ordinary course of the business dealings and relations between the plaintiff and Lucius Hart & Co. in the retail or jobbing business was, in substance, as follows: “ The plaintiff kept at the disposal of the defendants a stock of the metal manufactured by the plaintiff, which was stored by the defendants, and from, this stock the defendants filled orders, making bills in their own name to their customers, collecting the amounts realized from the sale thereof, and rendering to the plaintiff monthly accounts of all metals sold and the proceeds realized from such sale, and making payment to the plaintiff of the balance, after deducting therefrom freights, expenses and commissions of the defendants.” Presumably this contract had been of some years duration. It certainly does not appear that it was made after the 31st of December, 1892. These allegations also tend to show that the plaintiff itself did no business whatever in this state; that all of the business of selling its metal was done by the firm of Lucius Hart & Co. To hold that the mere consignment of its goods to Lucius Hart & Co. as factors was doing business within the meaning of that act, or that a certificate would be required before the plaintiff could safely consign its goods to a citizen of this state for sale by him, would prevent many of our merchants from being factors for foreign corporations, which is a large part of the business of many in this city, and we think could never have been contemplated by the legislature. In brief, we think that the factor and not the consignor does the business of selling and collecting under such circumstances.

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


author: Bischoff, J.

text:
    Richard P. Lydon et al., App’lts, v. The Metropolitan Elevated Railway Company et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed February 5, 1894)
    Elevated bailway—Action against.
    Where a will devises a life estate in land, and directs the executor, on the death of the life tenant, to sell such premises and distribute the proceeds among the children'of the life tenant, such children are not entitled to maintain an action against an elevated railway company, whose structure abutted the premises, for an injunction and damages.
    Appeal from a judgment entered upon the report of a referee, dismissing the complaint of plaintiffs with costs, in an action brought to enjoin the defendants from maintaining, continuing or operating their elevated' railroad in front of the premises No. 843 Sixth avenue, and for damages sustained thereby.

      Redfield & Redfield {Amasa A. Redfield, of counsel), for app’lts; Davies, Short & Townsend {Julien T Davies and Frank S. Williams, of counsel), for resp’ts.
   Bischoff, J.

Plaintiffs base their right to maintain their action on the provisions of the will of Dennis W. Buckley, their ancestor, under which they claim title as remaindermen in fee of the premises in suit. The life tenant under the terms of the will of said testator, Ellen Lydon, is still living, and the plaintiffs are her children.

The right of plaintiffs to maintain this action therefore depends upon the construction to be given to the will of Dennis W. Buckley, deceased.

Appellants are undoubtedly correct in their contention that as a matter of law, where there is a direction for a future conversion of real property into personalty, the property is not deemed to be converted, until the time of its conversion as indicated by the testator has arrived. This proposition is abundantly established by authority, Underwood v. Curtis, 127 N. Y., 533; 40 St. Rep., 255; Savage v. Burnham, 17 N. Y., 561; Moncrief v. Ross, 50 id., 431; Vincent v. Newhouse, 83 id., 505; but they are in error in supposing the correctness of such contention is decisive of this action in their favor.

Under the terms of testator’s will, so far as the question in controversy is concerned, testator has provided as follows % I give, devise and bequeath to my daughter Ellen Lydon, wife of P. H. Lydon, the house and lot No. 843 Sixth avenue in the city of New York * * * for and during her natural life * * * * On the death of each of my said children to whom I have devised real estate for life, I order and direct and I do hereby authorize and empower my executors to sell and dispose of the said premises herein devised to such child so dying for life and to distribute the proceeds therefrom as follows ; * * * If he, or she leaves children or descendants of children, then among said children and descendants of children, the descendants of a child taking the share the parent would have taken if living; if he or she leave no children or descendants of children then among his or her brothers and sisters, and descendants of brothers and sisters, said descendants taking the share the parent would have taken, if living, provided that on the death of a son leaving a wife surviving him, that before any such distribution one-fifth part of said proceeds of property devised to him for life shall be paid to said wife for her own use and benefit.”

It will be observed that the plaintiffs, by the language of the will, they being grandchildren of testator, are given their respective shares in the proceeds of the lands when sold, the executors having a power of sale in trust for the purpose of distribution. Under such circumstances the plaintiffs, no matter where the title to the real estate may be at any time after the death of testator, have no interest whatever given them by the terms of the will in the land itself as land. It was the manifest intention of the testator that the beneficiaries should have their respective interests in money and not in land, and the question of where the legal title to the land may be in the meanwhile cannot affect their rights as long as they have no present right to require the executors to-convert the said real property into personalty.

The position and the rights of the plaintiffs under testator’s will are well stated in Meakings v. Cromwell, 5 N.Y., 138, wherein the court of appeals says, quoting from the vice chancellor, Sir John Leach, in the case of Smith v. Claxton, 4 Madd., 492: “A devisor may give to his devisees either land or the price of land, at his pleasure; and the devisee must receive it in the quality in which it is given, and cannot intercept the purpose of the devisor. Where a devisor directs his land to be sold, and the produce divided between A. and B., the obvious purpose of the testator is, that there shall be a sale for the convenience of division ; and A. and B. take their several interests as money, and not land. So, if A. dies in the lifetime of the devisor, and the heir stands in his place, the purpose of the devisor, that there shall be a sale for the convenience of division still applies to the case, and the heir will take the share of it as A would have taken it as money and not land. * * * By the settled doctrine of equitable conversion, the testator gives money and not land, * * * and the gift for all substantial purposes becomes a legacy.”

In the leading case of Bogert v. Hertell, 4 Hill, 492, much light is thrown on the rights of the parties in this action. In that case it was held there was an equitable conversion of realty into personalty ; yet, the position was taken by the court below that, notwithstanding the power given by the will to sell and dispose of the real estate and convert the mass into money, that when so converted it still was to be regarded as land subject to the rules and principles governing the disposing of real estate, and that the executors, having no control over the lands, could not control the proceeds thereof.

The court of appeals says : “ It is said by the court below to be an established rule in the doctrine of equitable conversion of real- into personal property, that where the devisor directs the conversion for a particular specified purpose, and not absolutely, to all intents and purposes, or “ out and out,” as the phrase is, courts are bound still to regard the estate as land, and that no part of the mass thus converted has impressed upon it the character of personalty.

How I think the authorities demonstrate that where'the devisor has .directed or authorized the conversion of his real estate even for a particular special purpose, such as distribution, courts are bound, as long as the purpose and object exist and continue, to regard it as of that species of property into which it was directed to be converted; and, to the extent and for the purposes declared, it is to be treated as money and not land. This will be found to be the uniform language of all the cases on the subject. If the purpose and object of the conversion fail altogether, or in part, then the whole estate in the one case, and the part in the other, is regarded as an estate or interest undisposed of by the will; and as the devisor, in the event happening, has made no disposition of the estate, it takes the direction given to it by law, independently of the will, and goes to the heir at law. But in the latter case, where there is only a partial failure, if the purposes of the will still requires a sale or conversion, the heir takes the part thus undisposed of, as money, and not as land; and on his death, it will go to his personal representatives. * * The law regards the property, for all the purposes of the will, in the state and condition of real or personal, exactly according to the character impressed upon it by the manifestation of the testator’s intent.”

In Fisher v. Banta, 66 N. Y., 468, wherein the court held the will to have made an equitable conversion of realty into personalty, the court says: “ From the moment of the testator’s death the conversion took place, and the land became money for all purposes of distribution. The impression of money was fixed upon it; and the sons took their interest in the converted property as legatees, and upon their death, before actual sale, it would pass to their personal representatives.”

It follows from these authorities that the interest of plaintiffs in the property is that of legatees in the proceeds of the land to be sold and not in the land as land.

Appellants cite in vain 1 R. S., 729, § 56, as establishing any rights in them under the will of testator in the property as land. The statute provides that a devise of lands to executors or other trustees, to be sold or mortgaged where the trustees are not also empowered to receive the rents and profits shall vest no estate in the trustees, but the trust shall be valid as a power, and the lands ■shall descend to the heirs or pass tq the devisees of the testator subject to the execution of the power.

The difficulty with appellants under this statute is that they are neither the heirs, nor the devisees, of testator. Their mother is living, and so long as she lives they cannot be said to be heirs of their grandfather, nor are they devisees of the testator in the sense indicated by the statute cited. There is no devise under the terms of the will to them of the land in question. They are legatees of certain proceeds, first to be realized from a sale under the power granted the executors for the purpose of distribution.

The provision of the statute as to devisees undoubtedly has reference to devisees of land as land followed by a naked power in trust to the executors to sell. In such a case the devisees could defeat the power of sale by a prior conveyance of their interest, but it would be absurd to claim that the plaintiffs in this action by a deed made at the present time could defeat the power of sale of the executors, the plaintiffs having neither an interest in the land as land or a power of disposition thereof.

Under § 56, 1 R. S., 729, it may be that the legal title to the property in suit is in the heirs of testator; but plaintiffs certainly do not answer that description and could not so hold or claim any interest therein; hence a discussion of the rights of the heirs would be immaterial.

It follows that the judgment should .be affirmed, with costs to respondents.


author: Pryor, J.

text:
    Theodore Pots, Resp’t, v. Jacob Herman, App’lt.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    1. Appeal—Discretion.
    An exercise of discretion by the city court is not the subject of review by this court.
    2. Same.
    An order for the examination of a party before trial granted by the city court upon prima facie proof of the requisite facts, is not reviewable by this court.
    3. Same.
    Such order granted without any proof of the requisite facts, involves no exercise of discretion, but is absolute legal error, and so is within the appellate jurisdiction of this court.
    4. Depositions—Examination of party before trial.
    To authorize an order for the examination of the defendant to enable the plaintiff to frame his complaint, it must appear that the information sought is material and necessary for the purpose; that the plaintiff has not the information, and that he cannot obtain it except by examination of the defendant.
    Appeal from order of the general term of the city court, affirming order denying motion to vacate order for examination of defendant to enable plaintiff to prepare his complaint.

      Sam'l G. Adams and Nathan Lewis, for app’lt; A. H. BerricJc, for resp’t.
   Pryor, J.

The respondent objects, in limine, that the order is not the subject of review by this court.

We have no jurisdiction to entertain an appeal from an order which the city court has granted in the exercise of its discretion. Keller v. Feldmann, 49 St. Rep., 718. An order for the examination of a party before trial, if the requisite facts be presented, is discretionary; and so, is not open to revision by us on appeal from the city court. Robinson v. Cornish, 36 St. Rep., 39; Finley v. Chapman, 119 N. Y., 404; 29 St. Rep., 579; Jenkins v. Putnam, 106 N. Y., 276; 8 St. Rep., 710; Glenney v. Stedwell, 64 N. Y., 120; Merchants' National Bank v. Sheehan, 101 id., 176; Herbage v. City, 109 id., 81; 14 St. Rep., 845; Clyde v. Rogers, 87 N. Y., 625; Stilwell v. Priest, 85 id., 649. But, if the facts indispensable to the allowance of the order be not apparent in the papers, the court has no power to grant it; and having no discretion to make an order beyond its jurisdiction, in making it the court commits legal error. “ If the affidavit discloses such a case as gives the judge the power to act, what action he will take is discretionary with him.” Glenney v. Stedwell, 64 N. Y., 128; Jenkins v. Putnam, 106 id., 276; 8 St. Rep., 710. “ Here there were facts upon which the court had the power to exercise its discretion, and that is as far as our inquiry can extend.” Stilwell v. Priest, 85 N. Y., 650.

To authorize an order for the examination of the defendant with a view to the preparation of the complaint, the moving affidavit must show the desired information to be material and necessary for the purpose; that the plaintiff is without such information, and that it is inaccessible to him otherwise than by recourse to his adversary. Martin v. Clews, 55 N. Y. Supr., 552; 18 St. Rep., 463 ; DeLacy v. Walcott, 36 id., 79; Jenkins v. Putnam, 106 N. Y., 272 ; 8 St. Rep., 710; Strakosch v. Press Co., 53 Hun, 503 ; 25 St. Rep., 189; Britton v. MacDonald, 3 Misc., 514; 52 St. Rep., 494. The plaintiff’s affidavit exhibits neither that the facts he seeks are necessary to enable him to frame his complaint, nor that he is ignorant of them, nor that he cannot obtain them except by examination of the defendant. On the contrary, the allegations in the affidavit comprise all the elements of a sufficient complaint; and they purport to be made on the personal knowledge of the plaintiff.

Plaintiff’s application was premature. After issue joined, he may well claim the examination of the defendant with a view to the trial.

Upon the ground that nothing was presented to the court below to justify the order, it is reversed, with costs.


text:
    Charles S. Halsted, App’lt, v. Sarah B. Halsted, Resp’t.

      (New York Common Pleas, General Term,

      Filed February 5, 1894)

    Pleading—Supplemental complaint.
    Leave to set up, in an action for divorce, an act of adultery committed after the commencement of the action, by way of supplemental complaint, should not be granted.
    Appeal from an order made at special term which denied plaintiff’s motion for leave to serve a supplemental complaint averring defendant’s commission of adultery since the commencement of the action. Action for a divorce on the ground of adultery.

      Geo. W. Carr, for app’lt; Edward B. Merrill, for resp’t.
   Bischoff, J.

The office of a supplemental complaint is to aid the cause of action already averred, not to enable the plaintiff to recover upon a cause of action which has accrued since the action was commenced. Bostwick v. Menck, 4 Daly, 68; McCullough v. Colby, 4 Bosw., 603; Cont. Const. & Imp. Co. v. Vinal, 14 Civ. Pro., 293; 15 St. Rep., 968 ; Bull v. Rothschild, 16 Civ. Pro., 356; 22 St. Rep., 536; Muller v. Earle, 37 N. Y. Supr. Ct., 388.

One act of adultery affords a sufficient cause of action for a divorce a vinculo matrimonii, and in this respect an action for divorce a vinculo matrimonii is to be distinguished from an action for separation or divorce ct mensa et thoro, on the ground of cruelty and inhuman treatment. A single act of cruelty does not authorize a decree of separation or divorce a mensa et thoro, unless there is also evidence of reasonable ground for apprehension that the cruelty will recur. Perry v. Perry, 1 Barb. Ch., 516; Am. & Eng. Ency. of Law, vol. 5, p. 792.

In an action for divorce a vinculo matrimonii, the plaintiff can: not recover upon proof merely that the defendant has committed an act of adultery since the action'was commenced (Ferrier v. Ferrier, 4 Edw. Ch., 296), for the obvious reason that the adultery proved is not the adultery alleged and complained of. Thus the cause of action assigned is improved. The subsequent adultery is ground for a new and independent action, and leave, therefore, to set it up by supplemental complaint should not be granted. Milner v. Milner, 2 Edw. Ch., 114; Morange v. Morange, 2 Month. Law Bull., 30.

Assuming that evidence of the commission of adultery with the alleged co-respondent, subsequent to the commencement of the action, is admissible on the trial as tending to establish the relations between the defendant and the alleged co-respondent before the commencement of the action, and so as tending, in connection with other evidence, to establish the adultery alleged and complained of. Stale v. Bridgman, 24 Am. R., 124, 129. The plaintiff’s motion to leave to assert the subsequent adultery by supplemental complaint was, notwithstanding, properly denied under the rule which requires that only the facts constituting the cause of action, that is to say, the issuable or ultimate facts, and not the evidence of those facts, should be pleaded. Code Civ. Pro., § 481, subd. 2; Bliss on Code Pleading, § 206, etc.; The Nat. Union Bk. of Dover, v. Reed, 35 St. Rep., 572 ; Goodrich, v. Dorman, 38 St. Rep., 198.

. The order should be affirmed, with costs.


text:
    Henry C. L. Peetsch, App’lt, v. William H. Quinn, Resp’t.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    1. Interest—Goods sold.
    The plaintiff is entitled as matter of law to interest on the amount of his recovery for goods sold and delivered.

      '■2. Same—Correction.
    Interest on such amount is not the subject of proof but of computation; and if the verdict as rendered fail to include interest, it should be corrected by the addition of interest, and be' recorded as. so amended. ' ,
    Appeal from judgment of the general term of the city court ■affirming judgment on verdict.
    Also appeals from orders of the general term of the city court affirming order denying motion to vacate order of affirmance, and order denying motion to enter order of affirmance nunc pro tunc, and order .granting leave to issue execution.
    The opinion sufficiently states the case.

      Johnston & Johnston (Edward W. S. Johnston, of counsel), for app’lt; MichaelH. Gurran, for resp’t.
   Pryor, J.

In an action for fifty-two dollars, the price of goods sold and delivered, the defendant challenged an item of two dollars and fifty cents, which the jury disallowed, and returned a verdict of forty-nine dollars and fifty cents for the plaintiff. The recovery being for less than fifty dollars, the costs, sixty-eight dollars and sixty-two cents, were credited to the defendant; and the forty-nine dollars and fifty cents being deducted from that amount, judgment was entered for the defendant in the sum of nineteen •dollars and twelve cents.

Upon the return of the jury to render their verdict, but before it was announced, the court was requested and declined to instruct the jury that the plaintiff was “ entitled to recover interest upon whatever amount they might find.” Again after the rendition of the verdict, but before the discharge of the jury plaintiff’s counsel asked the court to direct the jury “to add interest from whatever date they may find the plaintiff is entitled to interest upon - that amount;” and this request too the court rejected. To both rulings .the appellant duly excepted.

That, of absolute right, the plaintiff was entitled to interest on the amount of his recovery, we had supposed to be too plain a proposition of law to be mistaken even in the hurry of nisi prius proceedings. Dana v. Fiedler, 12 N. Y., 40; Andrews v. Durant, 18 id., 496, 502; McCormick v. Pa. R. R. Co., 49 id., 304; Brennan v. Security Co., 4 Daly, 296; Mansfield v. R. R. Co., 114 N. Y., 331, 336; 23 St. Rep., 739. No time of payment for the goods being •specified, the price was payable immediately on delivery, and carried interest from that moment. Chester s. Jumel, 125 N. Y., 237, 254; 35 St. Rep. 4. A bill was sent with the goods (Sept 6,1890,) and thus for another reason interest ran from the time of delivery. Mackovsky v. Manhattan Co., 11 St. Rep., 649. But, as the complaint claims interest only from Oct. 3d, perhaps it should not be recovered beyond that period.

In its opinion at general term the court below says: “ The jury had the right to allow the amount claimed or any smaller amount. It is quite possible that they did not intend the plaintiff should recover a larger verdict including interest.” Indisputably, if the plaintiff was entitled to a verdict, he was entitled to recover at least $49.50 ; and nothing in the pleadings or proofs ■authorized a verdict in his favor for any smaller sum, exclusive of interest

In denying the motion for a new trial the learned trial judge seems to found his decision on two grounds: That there was no proof of interest, and that by disallowing interest and so throwing the costs on the plaintiff, suitors would be admonished not to vex the city court with trivial litigations.

In Brennan v. Security Co., 4 Daly, 296, 297, we said: “ Interest is a mere incident to the principal claim, and in law is entirely certain. No fact is to be proved in respect of it, and its computation is a mere clerical act, that may be performed on the trial by the judge, or referred to the clerk or jury.” „

Interest being the plaintiff’s legal .right may not be refused him, however commendable the motive of the denial.

In refusing plaintiff’s request on the trial for interest, the learned judge intimated that the application came too late. But, any error as to interest, “ is the subject of correction at any stage of the proceeding.” 4 Daly, 297. Cr, in the language of counsel for the appellant, “ where the jury, through mistake, fail to include interest in their verdict, it may be recorded so as to include interest.” Citing, West v. Lynch, 1 City Ct., 225 ; Burhans v. Tibbitts, 7 How., 21; Wells v. Cox, 1 Daly, 515; Blackley v. Sheldon, 7 Johns., 32; Root v. Sherwood, 6 id., 68; Clark v. Lude, 63 Hun, 363; 43 St. Rep., 607. This was precisely what the plaintiff demanded, and it was error to deny his request.

' By reversal of the judgment of the general term the several subsequent orders became ineffectual, and we have no occasion to consider them.

Judgment reversed, with costs ; verdict corrected by the addition of interest on its amount from October 3, 1890, to the day of trial, and judgment for plaintiff on the verdict as corrected, with costs. 63 Hun, 366; 43 St. Rep., 607.


author: Daly, Ch. J.

text:
    Amelia Spengeman, Resp’t, v. Henry Alter, App’lt.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    1 Negligence.—Cellar hole.
    It is not negligence, per se, for a person to take the cover off of a hole in his cellar to do a necessary act, and leave it uncovered while there at work.
    2. Same.
    Where the defendant was engaged in a necessary and lawful act in his cellar and for that purpose had the hole uncovered, and had no cause, from the circumstances, to apprehend danger "to any person, he is not legally accountable for an accicient occasioned thereby.
    Appeal by defendant from judgment in favor of plaintiff entered upon the verdict of a jury for $900 damages for alleged negligence and from an order denying motion for new trial.

      Edward P. Orrell (Edward W. S. Johnston, of counsel), for app’lt; John H. Webster (Henry Hoyt, of counsel), for resp’t.
   Daly, Ch. J.

The plaintiff, who was janitress of No. lid West 102d street, owned by the defendant and his wife, was injured by stepping into a hole in the cellar of the premises, which was left open and unguarded, as she claims, through the negligence of the defendant. He was engaged in the cellar at the time of the accident in endeavoring, with the assistance of his wife, to sweep out water with which it had been flooded from the bursting of a pipe in the floor above. The hole was at the front part of the cellar, near the bottom of a flight of steps which led from the front area, and the plaintiff descended these steps and entered the cellar, which was dark, and, at the second step she made into the cellar, fell into the hole. The hole was ordinarily covered with a board that fitted it, but on this occasion it was displaced and lay near the hole. Whether it had floated off the hole when the cellar was flooded, or had been taken off by defendant was a matter of dispute in the case, but the defendant knew it was off and was sweeping the water out of the hole, where it had collected, towards a cesspool outside where it immediately ran off.

The question of negligence is one which depends upon circumstances. An act may be imprudent at one time and not at another. There would ordinarily be no negligence in taking the cover off the hole in the defendant’s cellar to do any necessary ct, no' e. g., to to to gave access, or renove water with which, as in this case, it was flooded, and as the (defendant was engaged in removing water from the cellar when the accident occurred it was not, per se, negligence for him to leave the hole uncovered while he was there doing the work. It might, however, be a negligent act if he had reason to expect that the plaintiff, or any person, would enter the cellar from the front area; for the hole was near the bottom of the front steps and the cellar was dark.

There was no evidence that defendant knew, or had reason to suppose, that the plaintiff, or any person, would enter the cellar from the front. He was looking for her to come and light the gas in the cellar, but there was an inside stairway leading to the upper part of the house, and the gas jet was near this inside stairway. It was the duty of the plaintiff to come to the house every evening (she lived elsewhere in the neighborhood), and to light the gas in hallways of the house from the top floor to the cellar. On this occasion she came, while the defendant and his wife were in the cellar, and proceeded to the top of the house and lit the gas on every floor down to the first. She then went out of the front door and down the area steps to light the gas in the cellar, when she met with the accident.

She testified that it was her custom to enter the cellar that way, from the outside, every evening to light the gas. Her explanation was that she would have to unlock the door leading to the cellar from the interior of the house and after lighting the gas to ascend again, lock the door and go home through the front doorj and that it was more convenient to leave the door to the cellar stairs locked, go outside and down the area to the cellar and after lighting the gas to make her exit again by the area. Of this custom it was not shown that the defendant had knowledge. On the contrary, he says he never saw her go' down that way. He had sent his daughter out to the front of the house to watch for the plaintiff’s coming and to tell her to light the gas in the cellar and that the cellar was flooded; and she was so told ; but there was no instruction to send her down the area steps, and when she came she went into the house, lighted the gas above and then came outside and went down the area steps.

Defendant and his wife both testify that they saw her coming down the steps and warned her about the hole, but she denied this, and as the jury found in her favor they must have disbelieved the defendant’s testimony; so that we cannot assume from the evidence that the defendant saw her and did not warn her.

It, therefore, appears from the evidence that the defendant was engaged in a necessary and lawful act in his cellar, and for that purpose had the hole uncovered; that he had no cause to apprehend danger to any person from the circumstances, and that the accident was one for which he was not legally accountable.

An exception to the charge presents the question whether the jury were properly instructed as to what constituted negligence on the part of defendant. They were told that if the defendant lifted the cover off the hole and put it on one side, then if he did not warn the plaintiff of- that fact, he was guilty of negligence This instruction omitted the qualification that the jury must alsc find that defendant knew, or must have known, that the plaintiff was approaching, or might approach, the place of danger before he was required to warn her. The instruction was excepted to, and the exception was well taken.

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


author: Per Curiam.

text:
    Hans F. Jorgensen, Resp’t, v. The Ministers, etc., of the Reformed Low Dutch Church, etc., Impleaded, etc., App’lt.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    Appeal—Stay.
    The allowance of a stay on appeal is a matter within the discretion of the special term.
    Appeal from an order denying a motion for a stay on appeal from an interlocutory judgment.

      Robert A. Johnston (Douglas A Levien, Jr., of counsel), for app’lt; William B. Tullis, for resp’t.
   Per Curiam.

Whether to allow the stay was a matter within the discretion of the special term judge; and upon the papers we are well satisfied with the exercise of his discretion.

Order affirmed, with costs.


text:
    De Youngs, Resp’t, v. Solomon Jung, App’lt.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    1. Trade mark—Injunction.
    Equity will enjoin a party from so using his name as to cause the public to believe the goods of another person or firm are his production
    2. Same—Infringement.
    An infringement has been committed when ordinary purchasers, buying with ordinary care, are likely to be misled.
    Appeal from an order made at special term granting an injunction against the defendant.

      D. B. Anthony, for app’lt; John Jerolomon, for resp’t.
   Bookstaver, J.

This is an appeal taken by the defendant from an injunction restraining him from using the words “ The Young ” or “ The Youngs ” directly or indirectly, in connection with the business of making or vending photographic art products in a way calculated or intended to convey the impression that such business is identical with plaintiff’s; also the use of the name “Young" or “Youngs" in script, with the prefix “The," or one of like sound, and with or without a dash underneath, in connection with such business.

“ De Youngs ” is the trade-mark of the plaintiff, an incorporated company, organized under the laws of the state of New York and doing business at 835 Broadway, and is placed on its photographs, crayons, circulars, bills and signs, with a dash underneath. Prior iy 1st, the defendant had been using the words “ The .¿s,” with.a dash underneath, upon his photographs, etc. On „ne 1st of May, 1893, he moved into the second story of the building corner of Thirteenth street and Broadway, about a block above the plaintiff’s place of business, and there established a photographic business under the name of “The Youngs” with a dash underneath, using the name upon his signs, photographs, etc.

It may be as claimed by the respondent, that in modern German, the “ Y ” is sometimes substituted for the “ J,” and hence that the family name of Young may now be used in that country; and that therefore the inference drawn by the learned judge wlio granted the injunction is not warranted by the facts. But the use of the word “ The ” before the family name and the addition of the “s” to the name “ Young” arouses suspicion. The “ The ” and the De ” being of the same sound or nearly so. The proximity of the business of the appellant to that of the respondent, the close similarity of the script used, the dash underneath displayed on signs, below the photographs, etc., together with the distribution of circulars in which it is said that “ the reputation of our work is so well known by the public that customers may feel confident of receiving satisfaction,” when in reality the business was only two or three years old and was carried, on by the defendant individually, the additional fact that at the top of such circulars there are fac similes of medals given as awards of premium or merit at the Philadelphia exhibition in 1876, the close similarity of the numbers of the street in which their respective business is carried on, deepens this suspicion into something like conviction that the resemblances are not altogether unintentional and without design ; especially when we remember that the word “ The ” cannot stand as an abbreviation of the defendant’s given name which appears by his naturalization papers and his passport to be “ Sol,” and defendant swears he has been known by that name from youth up, and not by the name of “ Solomon ” or “ Theodore ” or any other name that can be abbreviated into “ The.” That these coincidences of names, styles of signs, impressions on bill heads, etc., have led unwary persons from plaintiff’s business, -is apparent from the affidavits which were read as a part of plaintiff’s moving papers. As was well said by the learned judge who granted the injunction: “ Ho person is bound to accept his patronymic as a surname, and he may engage in business under whatever name he sees fit, provided, however, that the assumption of any particular name for such purposes is unaccompanied by design to perpetrate a fraud upon others. If so, the use of the assumed name should be restrained.” And equity will enjoin a party from so using his name as to cause the public to believe the goods of one man or firm are the productions of another. Holmes, Booth & Hayden v. Homes, Booth & Atwood Co., 37 Conn., 278 ; McLean v. Fleming, 96 U. S., 245.

So, too, a party has a right to use his own name, but he has no right to do so with such additions to it as may deceive the public or lead it to believe that he is selling an article made by another. Meneeley v. Meneeley, 62 N. Y., 427, cited in Caswell et al. v. Hazard, 121 N. Y., 482; 31 St. Rep., 576; Clark v. Clark, 25 Barb., 76. To constitute an infringement of a trademark, exact-similitude is not required, but an infringement has been com- * mitted when ordinary purchasers, buying with ordinary caution, are likely to be misled. McLean v. Fleming, supra. And positive proof of fraudulent intentions is not required when probability of deception has been established. T. A. Vulcan v. Myers, 139 N. Y., 367; 54 St. Rep., 603 ; Taensticksfabriks A. Vulcan v. Myers, 11 N. Y. Supp., 663; 34 St. Rep., 122; Cox on Trademarks, 481; Colman v. Crump, 70 N. Y., 573. In the latter case, Judge Allen said: “ If the false is only colorably different from the true, if the resemblance is such as to deceive a purchaser of ordinary caution, if it is calculated to deceive the careless and unwary, and then to injure the sale of the goods of the proprietor of the trademark, the injured party is entitled to relief and may maintain an action to restrain such violation.” Proof that any one has been deceived is not necessary. T. A. Vulcan v. Myers, supra; Manfg. Co. v. Trainer, 101 U. S., 57.

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


text:
    John Snaith, Resp’t, v. George D. Smith, App’lt.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    1. Appeal—Case.
    .In the absence of a certificate that all the evidence is contained in the case, the appellate court can review only the questions of law presented by it.
    2. Contract—Architect’s certificate.
    Where the contract makes the architect’s certificate conclusive on the question of performance, the certificate, though it does not contain the very language of the contract, but does so by necessary implication, is just as binding upon the parties as though the very words of the contract had been employed.
    3. Same.
    Such certificates can be disregarded only for fraud, mistake or bad faith of the architect.
    4. Same—Delay.
    In an action to recover damages caused by delay on the part of the contractor, the excuse for such delay, when caused by the owner or his employes, extends throughout the entire period.
    5. Mechanic’s lien—Foreclosure.
    In an action to foreclose a mechanic’s lien, the defendant is not entitled to a dismissal of the complaint merely because the plaintiff fails to prove his lien.
    6. Same.
    In such case, a personal judgment may be recovered.
    Appeal from a judgment of the general term of the city court affirming a judgment entered at a special term thereof.

      J. Delahunly, for app’lt; Wilmot & Gage (De B. Wilmot, of counsel), for resp’t.
   Bookstaver, P. J.

The action was brought to foreclose a mechanic’s lien and the plaintiff prays judgment of foreclosure. The answer sets up counterclaims for delay in the completion of ,the work and for the cost of finishing it

,, We can find no certificate that all the evidence is contained in the case as printed, and therefore can only review the questions of law presented by it. See authorities cited in Howe v. Woolsey, handed down herewith.

The exceptions taken to the admission or exclusion of evidence by the defendant during the progress of the trial, raise the single question as to whether the final certificate given to plaintiff by defendant’s architect was conclusive and binding on defendant in regard to the character and final acceptance by him of the work done and materials furnished under the written contract. The appellant contends that it was not, as the certificate was not in the terms in which it was provided by the contract it should be couched. The contract, among other things, provides for payment as the work progresses and also a final payment, and then contains the following: “ It being understood that the final payment shall be made within thirty, days after this contract is completely finished ; provided, that in each of the said cases the architect shall certify, in writing, that all the work upon the performance of which the payment is to become due, has been done to his satisfaction.” The certificate was in the words and figures following:

“Ho. 2117. > Hew York, March 19, 1891.
> “ This is to certify that there is now due to John Snaith, from ■George D. Smith, the final payment on his contract for work at 48 East Fourteenth street the sum of $1,169.
“R. H, Robes,tsoh,
Architect
“ Received payment”

Appellant contends this certificate is not a compliance with the terms of the contract and does not conclude the defendant from questioning the character of the work performed and the materials furnished, the complete performance of the contract, nor the fact of delay on the part of the plaintiff beyond the time allowed in the agreement and his consequent right to recover for such delay. He cites in support of this contention, Smith v. Briggs, 3 Den., 73, and Stewart v. Keteltas, 36 N. Y., 388. In the first of these cases," the contract required as a condition precedent to the payment, a certificate from the architect that the work was “ fully and completely finished according to the specifications.”

Instead of giving any certificate, the architect wrote the owner a letter in which he substantially admits that the houses then in question were not finished according to the specifications, but says that “ Were 1 the owner I would accept them for myself; ” and the court very properly held that such a letter was not a compliance with the terms of the contract, and that until the provision of the contract was complied with, “ in terms or in substance and spirit, no cause of action ” could be maintained on the agreement. In Stewart v. Keteltas, supra, although the contract provided that the work should be done according to the drawings and specifica- > tions of the architect “ Within the time aforesaid in a good, work-., manlike and substantial manner, to the satisfaction and under the direction of the said architect, to be testified by a writing or certificate under the hand of said architect,” it was held that a certificate which merely said the contractors had “ completed the masonwork to your building,” was a sufficient compliance with the terms of the contract. It is true, in the course of that opinion, the judge who delivered it, referred to Smith v. Briggs, supra, and incidentally said that the language of the contract should have been averred in the certificate, but that question was not then before the court for decision, and the court which decided the case-said, only as before stated, that the provision of the contract should be complied with in terms or in substance and spirit, which is a very different matter.

In Anderson v Meislahn, 12 Daly, 149, 151, the plaintiff was to-erect the buildings in conformity with the drawings and specifications made by the architect, “in a good, workmanlike and substantial manner, to the satisfaction and under the direction of the architect,” to be authenticated by a certificate in writing. The work was to be paid for in nine payments, and it was provided that in “ each of said cases ” or stages of the work, when the payments became due and payable, a, certificate was to be obtained, signed by the architect. The architect gave eight of these certificates and refused the ninth. As to the eighth, the court held that they must be regarded as certifying that the work, up to the time of each of these payments, had been done agreeably to the drawings and specifications, in a workmanlike and substantial manner under the direction and to the satisfaction of the architect, although the certificates only said that the contractor was entitled to the payment certified to. In that case it was also held that these eight certificates in the absence of fraud or mistake were conclusive as to the work done which entitled the contractors to these certificates, and there could be no inquiry as to the nonperformance of such work.

In Wyckoff v. Meyers, 44 N. Y., 145, which was an appeal from this court, the contract provided that the materials were to be furnished and the buildings were to be erected agreeably to certain drawings and specifications, in a good, workmanlike and substantial manner to the satisfaction and under the direction of the architect, and that the last installment of $1,800 was to be paid “ when all the work is completely finished and certified to that effect by the.architects.” The final certificate given by the architects in that case read, “ This is to certify that the last payment of $1,800 is due Wyckoff & Winham on your buildings, corner of Greenwich and Beach streets, as per contract.” The court of appeals said: “ The last payment was not to be made until the plaintiffs obtained the certificate of the architects to the effect that all the work was completely finished, both parties (in that case as in this) agreed to abide by the determination of the architects. * * * There was no attempt to show that the certificate was not given in good faith; and it concludes the rights of both parties. * * * It is claimed, however, that the certificate is not in proper form, because it does not in terms, certify that “ the work was completely finished. * * * But the certificate is, in substance all the contract requires. Plaintiffs were entitled to the $1,800 when the architects should certify to the effect that the work was all completely finished, and not before. The architects certified that the last payment was due according to the contract. This is clearly the same in effect, as if the architects had certified that the work was all completely done, and that the builders were entitled to the last payment.”

Turning to the contract in this case we find that the work included in the alterations and additions mentioned therein, should be well and sufficiently performed and finished agreeably to the drawings and specifications of the architect and under his direction and to his satisfaction. The contract expressly provides that in this supervision the architect acted as agent for the defendant. It also provides that in event of any doubt or question arising respecting the true meaning of the drawings or specifications, reference should be made to the architect, whose decision should be final and conclusive, also that if in the course of the work any alterations should be required, a fair and reasonable valuation of the work added or omitted should be made by the architect or referred to arbitrators.

It further provides that upon receiving notice from the architect to that effect, the plaintiff within twenty-four hours thereafter should take down all the portions of the work the architect should condemn as unsound or improper, or as in any way failing to conform to the conditions of the contract; that all damages, etc., caused by delays on the part of either party were to be fixed and determined by the architect or by arbitration. There are various other provisions of the contract which in certain contingencies make the architect the alter ego of the defendant, or the umpire between him and the plaintiff; and also a covenant whereby the plaintiff agreed to deliver to the defendant ready for use, the first story of the building in question on or before the thirtieth day, reckoning from the day of beginning, provided the owner agreed to furnish, if necessary, the tarpaulins to protect the building from the action of the elements.

In the light of the foregoing decision, we think there can be no doubt but that the contract made the architect named therein the agent of the owner, and that his decision upon the questions in controversy in this case was final, and the certificate, although it does not contain the very language of the contract, does so by necessary implication, and is just as binding upon the parties as if the very words of the contract had been employed and it had certified that all the work upon the performance of which the payment is to become due, has been done to his, the architect’s satisfaction.

Besides this final certificate, there must have been other certificates given for the intermediate payments. The forms of these we cannot ascertain from the case. We have looked carefully and do not find that any objection was made by the defendant to the form of the final certificate at the time it was presented to him. There was no reference to it in the complaint, nor is there any testimony concerning it in the case, as far as we have been able to discover. This objection first makes its appearance in the defendant’s proposed requests to find, after the judge who tried the case had in effect pronounced judgment, and we think is a mere afterthought, made to save his case, if possible, after decision.

No fraud, mistake or bad faith of the architect in giving this certificate was proved or attempted on the trial, and these are the only grounds upon which a final certificate given as this one was, can be disregarded. Wyckoff v. Meyers, supra ; Butler v. Tucker, 24 Wend., 449; Glacius v. Black, 50 N. Y., 153; Schencke v. Rowell, 3 Abb., N. C., 48; Whiteman v. The Mayor, 21 Hun, 117. The court below was therefore right in regarding the certificate as final and excluding the évidence offered.

But even if our conclusions on this question are erroneous, still we think no substantial error was committed by the court below in refusing to allow the defendant anything upon his counterclaim for delay. By the terms of the contract, possession of the premises in question was to be given to the plaintiff, and the lines and levels of the building furnished him on or before the 20th day of November, 1890. This was not done by him, and could not be, because the plaintiff did not get possession of them until about the middle of December following. This threw the work over to a more inclement season of the year, and one in which occur the Christmas holidays, making it much more difficult to procure workmen at that time, and necessarily delayed the work for more than the thirty days contemplated. In addition to this, when work upon the building had been commenced, it was found that an iron girder in the old building had to be removed and walls taken down in order to complete the floor according to the specifications, which involved extra work and two weeks delay, according to the architect’s testimony, and which was not contemplated by the contract and necessarily prolonged the work. It also appears from the evidence that the defendant did not furnish the tarpaulins necessary to protect from the weather although it was bad.

While it is true that where time is of the essence of the contract and one makes a contract to be performed within a certain time he is bound to do it by that time, and nothing will excuse him from doing it unless the delay arises from acts of the other party to it. In the contract under consideration, such delay was expressly provided for. Besides, the defendant himself was first guilty of a breach of the conditions of the contract by not delivering possession for a month after the time agreed upon, and not furnishing the tarpaulins. In Franchi v. The Brunswick-Balke-Collender Co., 36 St. Rep., 793, we held that in an action to recover damages caused by delay on the part of the contractor, that when' such delay had been caused by tbe defendant and those employed by him, the excuse for such delay extended throughout the entire period from the time of making the contract and was a defense although the work was not actually commenced until after the time stipulated. We therefore think the architect was justified in giving the certificate he did and that it was conclusive upon the parties.

After the evidence was all in and the court had practically rendered its decision, the plaintiff stated in open court that he waived the mechanic’s lien and asked for a personal judgment only. Whereupon the defendant moved to dismiss the complaint upon the ground that it appeared that the plaintiff had no lien and that he was entitled to a jury trial; which was denied and defendant excepted.

The defendant asked too much, he was not entitled to a dismissal of the complaint merely because the plaintiff failed to prove his lien. If the complaint contains an equitable and also a legal cause of action, and the plaintiff upon the trial of the former, fails in establishing a case entitling him to relief, he has still a right to a trial of the legal cause of action set out, in such case the defendant is not, therefore, entitled to a dismissal of the complaint until the latter has been tried. Beck v. Allison, 56 N. Y., 366, 373; Sternberger v. McGovern, id., 12; Hawes v. Dobbs, 137 id., 470; 51 St. Rep., 271. In this case the complaint set out a complete cause of action for work, labor and services performed and materials furnished irrespective of the allegations contained in it entitling the plaintiff to equitable relief, and it would have been error to have dismissed the complaint on the grounds stated in the motion.

Defendant also contends that the form of the judgment is incorrect. But in this he is clearly in error. Chap. 342, Laws 1885, § 15, especially provides, “ whenever in any action brought under the provisions of this act, any claimants shall fail for any reason to establish a valid lien, he may, nevertheless, recover thereon judgment against the party or parties to the action for such sum or sums as may appear to be due him and which he might recover upon a contract against the said party or parties. ” Even prior to this provision, it was held that personal judgment might be recovered in a mechanic’s lien action. Schaettler v. Gardiner, 47 N. Y., 404; McGraw v. Godfrey, 56 id., 610; Darrow v. Morgan, 65 id., 338; Thomas v. Sagahian, 10 N. Y. Supp., 874; 32 St. Rep., 1057.

The judgment should therefore be affirmed, with costs.