author: Bischoff, J.

text:
    George L. Baber, by Guardian, etc., App’lt, v. The Broadway and Seventh Avenue Railroad Company, Resp’t

      (New York Common Pleas, General Term,

      Filed November 5, 1894.)

    1. Master and servant—Liability—Tort.
    The rule respondeat superior obtains though the servant’s conduct, while acting within the scope of his authority, was wanton and reckless, unless the exercise of authority was a mere pretense for the accomplishment of some independent wrong.
    2. Same—Authority.
    Proof of express authority to the defendant’s driver to eject a trespasser from the car is not required.
    3. Same—Negligence—Contributory.
    Where one person, through the fault of another, is forced to assume a perilous alternative to escape other impending danger, negligence cannot he imputed to him.
    Motion for a new trial upon exceptions taken to the dismissal of the complaint and directed to be heard in the first instance at general term.

      Action to recover damages for personal injuries sustained through the conduct of the defendant’s servant in the course of his employment.
    Lamb, Osborne & Petty (Gilbert D. Lamb, of counsel), for app’lt; Root & Olark, for resp’t.
   Bischoff, J.

When the trial judge directed the dismissal of the complaint it sufficiently appeared from the evidence that the plaintiff sustained his injuries through the fault of the defendant’s drivér, and that the plaintiff was free from contributory negli: gence. The conduct of the driver, though wanton, was in the course of his employment.

On the evening of April 9, 1891, the plaintiff, a newsboy, 11 years of age, without molestation by-the driver, who was standing close by, boarded the front platform of the defendant’s car, which had come to a stop at Twenty-fourth street and Seventh avenue. His object in so doing was to supply a passenger, who had beckoned him, with a newspaper. While the plaintiff was making the change of the coin given him by the passenger, the car started up and was under considerable headway as it approached Twenty-third street. At this point the lad asked the driver to stop the car to enable him to alight. The request was refused, the driver at the same time ordering the plaintiff to “jump” off the car. Twice the plaintiff repeated his request, each time with the same result. The last time the dri ver’s command to “jump” was accompanied by gestures manifesting anger —the stamping of his foot and reaching forward as if about to seize his lash or whip, which at the time was hanging over the dashboard. Fearful of being beaten off if he remained, yet appreciating the risk of injury if he alighted from the moving car, the plaintiff leaped, fell and so sustained- the injuries of which he complained.

The plaintiff was a trespasser, but, even so, the fact did not lawfully expose him to the use of excessive force or means of ejecting, him which were unnecessarily menacing to his life or limb. Amato v. Sixth Ave. R. R. Co., 59 St. Rep. 674; 29 N. Y. Supp. 51, and the rule respondeat superior -obtains though the servant’s conduct, while acting within the scope of his authority, was wanton and reckless, unless the exercise of authority was a mere pretense for the accomplishment of some independent wrong. Hoffman v. H. Y. C. & H. R. R. R. Co., 87 N. Y. 25.

Proof of express authority to the driver to eject a trespasser was not required. The authority of the servant to protect his master’s premises from the intrusion of third persons is an incident of ordinary employment. Hence the fact of such authority is inferable from the fact and character of the employment. Hoffman v. N. Y. Cent. & H. R. R. R. Co., supra; Wood’s Master & Servant, § 279, etc. If the driver of the defendant’s car were sued'for an assault for having ejected the plaintiff, without resort to excessive force "or unusual means, his implied authority would constitute an adequate defense. Hoffman v. N. Y. Cent. & H. R. R. R. Co., supra. Unquestionably, therefore, the driver was acting in the course of his employment in ejecting the plaintiff.

Contributory negligence was no predicable of the fact that the plaintiff leaped from the moving car. It was not his voluntary act. The driver’s conduct left him with that as the only escape from being beaten or violently thrown from the car; and it" is a familiar rule 'that if one person, through the fault of another, is forced to assume a perilous alternative to escape other impending danger, negligence cannot be imputed to the former. Neither is error of judgment in a sudden and instinctive effort to escape impending danger to be accepted as a proximate cause of resultant injury. Am. & Eng. Ency. of Law, Vol. 4, p. 48, etc., and cases collected in the notes.

The exceptions should1 be sustained, and a new trial ordered, with costs to the plaintiff to abide the event.

All concur.


source: Caselaw Access Project

author: .Daly, Ch. J.

license: Public Domain

text:
    Isaac Bierman et al., App’lts, v. City Mills Company, Resp’t.

      (New York Common Pleas, General Term,

      Filed November 5, 1894.)

    1. Sale—Warranty.
    No implied warranty is broken, in tbe sale of felt cloth to be made into coats, where such garments are not shown to be unable to stand the wear of ordinary felt cloths and, therefore, unmerchantable.
    2. Same.
    Where the strength of the goods can be tested in the ordinary manner, and there is no latent defect discoverable upon use, no claim for defects can survive the delivery and acceptance of the goods.
    3. Same.
    A purchaser can have no cause of action for represntations as to the wearing quality of goods, even though false, where he can best know whether they are suitable for his business.
    4. Same—Principal and agent.
    Where a manufacturer entrusts an agent with the sale of his goods, he is not bound by the latter’s warranty, unless there is proof of express authority or of a usage to warrant on such sales.
    ■ Appeal by the plaintiffs from a j udgment of this court, entered upon a verdict in favor of defendant, rendered, by'direction of the court.

      Wolf, Kohn & TJllman (Sol. Kohn,oi counsel), for app’lt; Edward Rinman (Austin (?. Fox, of counsel), for resp’t.
   .Daly, Ch. J.

The plaintiffs purchased of the defendant about 4,200 yards of felt cloth, at the price'of one dollar per yard, and this action is brought to recover damages of the vendors for alleged misrepresentations and concealment in the sale of the goods. The complaint alleges that the defendant, b}’ its agent thereunto lawfully authorized, represented to the plaintiffs that the defendant had manufactured and was about to manufacture, certain kinds of beavers and cloths which were first class articles, and fit for use in the plaintiffs’ business, and which they could manufacture into coats. On the trial the complaint was treated as upon a warranty, but no such representation nor warranty as alleged was proved. The plaintiffs’ testimony showed that a sample of cloth was brought to them by one Nicholls, the defendant’s agent, and that he stated in answer to the question, “ How does the goods wear ? ” that “It wears like buckskin,” and that he had an ulster himself of those goods and wore it two years, and that he would warrant it to wear and that the goods would make a good ulster.

The defendant moved to strike out the plaintiffs’ evidence as to the several representations because they were not pleaded; and although the motion was at first denied it was subsequently entertained and granted. This left the cause of action wholly unproved ; unless we can find in the pleadings and evidence a ground of recovery for fraudulent concealment of defects, or for breach of implied warranty.

The complaint sets forth that the goods, after having been made up iuto clothing, were discovered to be damaged, of an inferior quality, rotten and unfit for any purpose whatsoever ; and that the defendant knew the fact and concealed it from the plaintiffs; and that the plaintiffs could not tell from an inspection of the goods that they were rotten; that the defect was latent; but that slight use and exposure to the air, in the wear of the goods manufactured of the cloths, indicated the entire rottenness thereof.

There was no evidence that the goods were rotten. It was shown that they did not wear well, many of the coats having been returned by purchasers; but it is shown that'the goods were felt, a manufacture which has not the lasting properties of woven cloth, and the use which the plaintiffs made of the stuff, i. e., making it up with a rubber lining for waterproof garments, was not, so far as the evidence discloses, within the contemplation of the parties to this sale. No test of the wearing properties of the cloth excepting in connection with the rubber lining was made, and there was no evidence that the goods were imperfect or differently made from the class of felt cloths of the price at which they were sold. There was evidence that cloth is regarded as good or inferior according to the price paid and that this was a merchantable article for the price. The quality of the goods was indicated by the price, which was one dollar per yard of double width, less a discount for cash,

There was no evidence that the goods could not be made into coats which would stand the wear of ordinary felt cloths, and therefore it was not shown that the goods were unmerchantable, and so no implied warranty was broken. It furthermore appeared that the strength of the goods could have been tested in the ordinary manner and that there was no latent defect discoverable upon use. No claim for defects therefore survived the delivery and acceptance of the goods. Dounce v. Dow, 64 N. Y. 411; Sprague v. Blake, 20 Wend. 60; The Oneida M. Co. v. Lawrence, 4 Cow. 440. The plaintiffs would have had no cause of action for representations as to the wearing quality of the goods even if any representation had been proved as pleaded, because, being manufacturers of garments, they could best know whether the stuff was suitable for their business.

The motion- to strike out the evidence of representations of warranty was made also upon -the ground of want of authority in the agent who sold the goods, to make a special contract of warranty, and the motion was properly granted upon that ground assuming the action to be for breach of warranty, as both sides have assumed on this appeal. Where a manufacturer entrusts an agent with the sale of his goods he is not bound by the latter’s warranty unless there is proof of express authority or of a usage to warrant on such sales. Wait v. Borne, 123 N. Y. 592-604; 34 St. Rep. 344; Argersinger v. McNaughton, 114 N. Y. 535-538; 24 St. Rep. 16. Proof of express authority or of such usage must be made by the party alleging the warranty and claiming a breach of it. Herring v. Skaggs, 34 Am. Rep. 4. None of the exceptions urged upon the appeal presents reversible error because the evidence excluded-did not relate to the material points of the case above considered.

Judgment and order affirmed, with costs.

All concur.


text:
    George W. Brand, App’lt, v. The New Jersey Steamboat Company, Resp’t.

      (New York Common Pleas, General Term,

      Filed November 5, 1894.)

    1. Carrier—Goons—Liability.
    Carrier of goods retains its character as such, with the attendant liability as insurer, until the goods have been delivered to the consignee, either actually or constructively

      2. Same—Constructive delivery. .
    To constitute constructive delivery, there must be notice of arrival and the affording of a reasonable time for the removal of the goods by the consignee.
    3. Same—Reasonable time.
    The circumstances of the particular case must control in determining the extent of this reasonable time.
    4. Same.
    In such case, the consignee’s obligation to exercise due diligence in removing the goods is a material element of consideration. ,
    5. Warehouseman—Liability.
    ' If the carrier fails, after such reasonable time, to divest itself of all liability by storing-the goods for the consignor, a liability as warehouseman attaches.
    6. Same.
    In such case, an absence of ordinary and reasonable care of the goods must be shown, in order that a liability for their injury may be imposed.
    Appeal from a judgment entered upon the report of a referee. Action for injuries to goods when in the defendant’s custody under contract for carriage. The plaintiff shipped 63 bales of hops, by the defendant’s steamboat from Albany, consigned to the Claus Lipsius Brewing Co., in Williamsburg, under a verbal contract of affreightment. The goods were lightered by the defendant upon their arrival in New York and were transported to a dock within one mile of the consignee’s place of residence, the lighter reaching the dock'at 8.30 in the morning of July 19th 1889. The consignee was notified of the arrival of the goods and a reply was received that removal of the hops would be made early in the morning of the above date. By nine o’clock that morning a dray arrived from the consignee’s brewery, and took on a load of seventeen bales, delivering the same at the brewery by ten o’clock, but no other wagons from the consignee arrived at the dock that day. At one o’clock the captain of the lighter telephoned to the brewery with regard to the delivery of the remaining bales, and was told that they would be sent for during the day; at five he telephoned again, and received word 'that no more hops would be taken that day. Thereupon the bales were covered with tarpaulins, in the manner followed by lightermen, and remained on board during the night. Before morning a particularly heavy rain storm took place and damage to the goods occurred, resulting in their refusal by the consignee and a consequent loss to the plaintiff. It appeared that an order had been given by the consignee to its servants to send three drays for the purpose of unloading these goods, and that a number'of drays sufficient for the carrying out of the order could have been made available; also that three loads would have sufficed for the transportation of the entire consignment. The evidence tended to show that this transportation was not made owing to the opinion of the consignee’s servants that the weather was threatening, and the testimony as to the state of the weather during the day presented a conflict.
    The referee rendered judgment in favor of the defendant for dismissal of the complaint upon the merits.

      Adam F. Schaiz {Wm. 0. Campbell, of counsel), for app’lt; W. P. Prentice, for resp’t.
   Bischoff, J.

No claim is made that the goods in suit were injured while in the course of actual transportation by the defendant carrier, and the only question raised by the appellant relates to the defendant’s liability for the damage occurring, under the state of facts above recited, either in the capacity of 'carrier or of warehouseman.

It is well settled that a carrier of goods retains its character as such, with the attendant liability as insurer, until the goods have been delivered to the consignee either actually or constructively, and that to constitute a constructive delivery there must be notice of arrival and the affording of a reasonable time for the removal of the goods by the consignee. After this reasonable time has elapsed, and the carrier should fail to divest itself of 'all liability by storing the goods for the consignor, as it may, a liability as warehouseman attaches and an absence of ordinary and reasonable care of the goods must be shown in order that a liability for their injury may be imposed. Tarbell v. Royal Exchange Shipping Co., 110 N. Y. 180; 17 St. Rep. 153; McKinney v. Jewett, 90 N. Y. 271; Redmonds v. Liverpool, etc., S. S. Co., 46 Id. 578; McAndrew v. Whitlock, 52 Id. 40; Fenner v. Buff. & S. L. R. R. Co., 44 Id. 505; Draper v. Pres't, etc., D. & H. C. Co., 118 Id. 118; 27 St. Rep. 931. The circumstances of the particular case must control in determining the extent of this reasonable time, McAndrew v. Whitlock, supra, and, in this connection, the consignee’s obligation to exercise due diligence in removing the goods is a material element of consideration, Tarbell v. R. E. S. Co., supra.

As to the defendant’s liability as carrier, then, the case turns upon the question whether or not the space of one day afforded a reasonable time for the unloading of the hops in suit, and, in view of the circumstances of the case, we agree with the learned referee that this was such a reasonable time.

There was no provision for “ lay days ” in the contract of carriage and the consignee, at intervals during the day of the lighter’s arrival, expressed his intention of removing the goods before night, which removal, by the means contemplated, could readily have been accomplished in a short space of time, and it appears from the evidence, considering the perishable nature of the goods, that the carrying out of its expressed intention by the consignee would have been but the performance of its duty to the carrier as imposed by law. There is ample evidence to support the referee’s finding that upon this particular day the state of the weather reasonably admitted of the safe transportation by the consignee of the goods, notwithstanding the conflict ppon this point, and the defendant is in no way accountable for errors of judgment on the part of the consignee’s servants with regard to the expediency of carting the hops during the period in question.

Not being liable as carrier for the injury which occurred to the-goods, is the defendant chargeable with negligence in caring for them as warehouseman?

That the defendant’s agent, the captain of the lighter, exercised reasonable care in covering the hops for the night cannot, we think, be seriously disputed, and, indeed, the appellant’s argument upon this point is confined to the proposition that it was the defendant’s duty to place the goods in storage for their proper protection.

It is not contradicted that the captain carefully employed the usual means provided for protecting goods. upon a lighter, nor that these means, under ordinary circumstances, would suffice for their purposes, and, in view of the repeated expressions by the consignee of its intention to remove the goods that day, together with its failure to give notice of its change of intention until the end of the day, it cannot be questioned that the placing of the goods in storage over night would have been an act of extraordinary diligence not required of the defendant. The duties of the parties were correlative, Tarbell v. R. E. S. Co., supra, and those of the defendant were not to be increased by the consignee’s failure to observe those on its part to be performed. Button v. Hudson River R. R. Co., 18 N. Y. 256.

'The appellant raises no points which require a further discussion and we ar,e well content to affirm the judgment, whereby the respondent appears to have obtained but justice.

Judgment affirmed with costs.

Bookstaver, P. J., and Pryor, J., concur.


author: Bischoee, J.

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

      (New York Common Pleas, General Term,

      Filed November 5, 1894.)

    1. Evidence—Declarations—Agent.
    The declarations of an agent at the time of- an accounting by him, concerning the source from whence the moneys accounted for were derived, are inadmissible in evidence as between third persons.
    2. Damages—Elevated railroad.
    The evidence was held sufficient to show substantial pecuniary damage as a result of the maintenance and operation of the road.
    Appeal from a judgment for the plaintiff which was entered upon the report of a referee.
    Action by an abutting owner for injunctive relief and to recover damages for the' loss of rental value caused by the maintenance and operation of the defendants’ elevated railroad in the street in front of the plaintiff’s premises.

      Davis & Bapallo (Judien T. Davis and J. 0. Thomson, of counsel), for app’lts; J. Aspinwall Hodge, Jr., for resp’t.
   Bischoee, J.

The action was brought by the owner of the premises three hundred and twenty-two east Thirty-fourth street, between First and Second avenues, in the city of New York, to enjoin the operation of the defendant’s elevated road which extends along said street from Third aven ue to the ferry on the East river, a distance of about three blocks ; and for the recovery of past damages arising from a loss of rents alleged to have been occasioned by the presence of the railroad. The judgment for the plaintiff is alleged insufficiency of the evidence to show substantial pecuniary damage as a result of the maintenance and operation of the railroad, and for alleged erroneous rulings on the trial.

It appears in evidence that the plaintiff’s premises consists of a lot of land which is twenty-five feet in width and ninety-eight feet nine inches in depth, and abuts on the railroad; that East Thirty-fourth street is a wide street, and that the rental value of premises on such streets is uniformly higher than that of premises of like character on other streets; that the ratio of rental to fee value has declined since 1880 to nine per cent., it having theretofore been ten per cent.; that from 1871 to about May, 1886, there was erected upon the lot in question a four-story building, twenty-five feet wide and forty-five feet deep, the first floor of' which was used as a store, and the three remaining floors, each sub-divided into a front and rear apartment of four rooms each, as tenements; that during the year from May, 1886, to May, 1887, the building was replaced by a new one being five stories in height, in width the same as the old one, and eighty-five feet in depth, the first floor of which was likewise used as a store, and the upper floors, each subdivided into four apartments, two front and two rear, of four rooms and three rooms each, respectively, as tenements; that immediately before the commercial panic of 1873 the fee value of the premises was $15,000, the rental value $1,500; that in the general depression which succeeded the panic these values declined until in 1887 they had reached $13,000, and $1,300, respectively; that'in 1878 the railroad was constructed and its operation commenced in 1879; that in 1877 there began a period of gradual recovery of real estate'values from the effects of the panic, which extended to the locality of the plaintiff’s premises; that at the time of the trial these values had' reached a point which was in excess of the values prevailing before the panic, but that property abutting on the railroad, and in character and situation similar to the plaintiff’s, had further declined below the values of 1877. To illustrate, the premises 318, 320 and 324 East Thirty-fourth street, which adjoin the plaintiff’s premises, and are identical with the latter as they existed up to May, 1886, in 1873 possessed a fee value of $15,000, and a rental value of $1,500, each, and in 1877 a fee value of $13,000, a rental value of $1,300. At the time of the trial the actual rental value was shown to be about $1,150, or $150 less than in 1877. At the changed ratio of rental to fee value these premises were worth at the time of the trial about $12,800, each. Had the rental value of 1877 continued they would have been worth about $14,450, each, and if the rental value of 1872 had been restored, about $16,650. From the foregoing facts it was fairly deducidle that the plaintiff had sustained a loss of rents averaging $150 a year, and a damage 'to the fee of .$1,875, the amounts awarded by the referee. Nothing was awarded for the year during which the new building was in process of construction, and, allowing for the increased space available for rental purposes in the new building, there was nothing to indicate that the rental and fee values of the plaintiff’s premises would have been greater than what they were shown to be at the time of the trial had the cause of depression of these values not been extant.

Granted, that as between principal and agent the presumption will prevail, in the absence of evidence to the contrary, that the latter has properly accounted for all moneys which have come into'his hands in the course of his employment, Turner v. Kouwenhoven, 100 N. Y. 115, 121, it does not follow that, as between third persons, the declarations of the agent at the time of an accounting by him, concerning the Source from whence the moneys accounted for were derived are admissible in evidence. Ocean Nat'l. Bk. v. Carll, 55 N. Y. 440. Such evidence is clearly hearsay. An exception exists where the declarations consists of the entries of an absent or deceased agent made in the course of the performance of duty, Rice on Ev. vol. 1. p. 392, § 213. Hence the referee properly excluded the testimony of the witnesses Holly and Turley which was to the effect that the moneys paid them by their agents were received by the latter for rent of particular premises, and for particular periods, when it appeared from the admissions of the witnesses that the only knowledge which they had of the facts was derived from the declarations of their agents to them. Other alleged errors in the rulings of the referee do not seem to merit discussion. The judgment should be affirmed, with costs. All concur.


author: J. E. Daly, C. J.

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

      (New Fork Common Pleas, General Term,

      Filed November 5, 1894.)

    1. Pleadings—Denial.
    An allegation of non-payment, in an action for money loaned, is not put in issue by a denial in the answer.
    2. Trial—Dismissal op complaint.
    In such case, it is not error for the court to deny a motion to dismiss the complaint on the ground that plaintiff failed to prove non-payment of the loan/
    3. Payment—Third person.
    A payment, made by a third person at defendant’s request, inures to his benefit.

      T. M. Tyng, app’lt in person ; Jacob Fromme, for resp’fc
   J. E. Daly, C. J.

This is an appeal from an affirmance by the city court, general term, of a judgment in favor of plaintiff for $1,000, with interest from October 5th, 1888, and costs. The complaint was for money loaned and advanced in divers sums amounting to $1,000 on and previous to July 3rd, 1888, which it was alleged defendant on that day promised in writing, to repay on the 5th day of October, 1888, and which defendant failed to pay. The answer admitted the advance of sums of money, amounting to $1,000, to be repaid on October 5th, 1888, and averred that since that date it had been repaid by professional services, rendered plaintiff at his request by defendant, which were worth $3,000 upon which $1,250 had been paid ; and defendant counterclaimed $1,750'. The answer also contained a denial of each and every averment in the complaint except such as were specifically admitted.

As there was no specific admission of the allegation of nonpayment, the defendant claims that that fact was put in issue by the denial and that plaintiff was bound to prove it; and cites in support of this contention Knapp v. Roche, 94 N. Y. 329, and Lent v. N. Y. & M. R. Co., 130 id. 504; 42 St. Rep. 592. In the first case cited the allegation of non-payment was in reference to the contract of a third party, whose default was alleged as the ground of defendant’s liability ; and so it was held that under a general denial non-payment must be proved. In the second case cited the non-payment was alleged of defendant’s own contract to pay; and while such allegation was held to be essential to the statement of a cause of action, the well settled rule that payment is an affirmative defense was considered, and it was suggested that, while the averment of non-payment was an issuable fact, a general denial does not put that fact in issue, and to that extent the rules that payment must be pleaded must be deemed to modify the rule of pleading under the Code in reference to a general denial.”

As the allegation of non-payment was therefore not put in issue by defendant’s denial, it was not error for the court to deny the motion to dismiss the complaint on the ground that the plaintiff was bound to prove non-payment of the loan. But the denial in the answer put in issue the fact of a written promise as averred in the complaint; for the admission of an advance of sums of money to be repaid on the 5th of October, 1888, was not a specific admission of a promise in writing made on the 8d day of July, 1888, to that effect, and the plaintiff should have been required to make proof of his written instrument. The denial of the motion to dismiss the complaint, when the plaintiff rested without such proof was therefore error.

The injurious effect of the ruling, to the defendant, is unquestionable, for when the only written promise shown to have been executed by him to plaintiff was produced by himself, and payment of the identical sum therein mentioned, with interest, to plaintiff, was established, the latter claimed to recover for a different loan, not evidenced by any writing whatever, and in fact not proved upon the trial.

It is disputed by plaintiff that the payment relied upon by defendant inured to his benefit, because it was made by a third party not in privity with him. But the written acknowledgment by plaintiff of such payment recites that it was made by defendant's request and a payment so made inures to his benefit. Madison Square Bank v. Pierce, 137 N. Y. 444-8; 51 St. Rep. 175. The instrument executed by defendant reciting his indebtedness and promising to pay the loan was an assignment to plaintiff, as collateral security, of a mortgage made by one Green to defendant, and this mortgage plaintiff afterwards assigned to one McGrath in consideration of the sum of $1,163.17 paid to him; the assignment stating that it was made at the request of the mortgagee, defendant, and the mortgager Green. It appears, therefore, that the debt which was evidenced by the writing had been repaid.

As the payment in question and the assignment of the mortgage were made after the issue was joined in the action the defense of payment by that transaction was not set up in the answer; but the evidence was received without objection.

The judgment should be reversed and a new trial ordered', with costs of the appeals and the former trial to appellant, to abide the event. All concur.


author:
Bischoff, J.
      Pryor, J.

text:
    Mary Demann, Resp’t, v. The Eighth Avenue Railroad Company, App’lt.

      (New York Common Pleas, General Term,

      Filed November 5, 1894.)

    1. Negligence—Railroad.
    Company is chargeable with the negligence of the driver, who fails to obey the signal to stop given by the conductor, but merely decreases the speed of the car, thereby inviting a passenger to assume the position which results in his injury.

      2. Damage—Mental pain.
    Mental pain and anguish can be considered as elements of damage in such case.
    Appeal from a judgment entered upon a verdict in favor of the plaintiff and from an order denying a. new trial.

      Action for personal injuries claimed to have been sustained by reason of plaintiff’s fall from a street car of the defendant.

      Purrington & Shannon (W. A. Purrington, of counsel), for resp’t; Coudert Bros. (Joseph Kling, of counsel), for app’lt.
   Bischoff, J.

As to the manner in which the accident, the subject of this suit, occurred, the plaintiff’s testimony furnished the sole evidence, all knowledge of the matter being denied by the defendant, and the main point raised upon this appeal is that the evidence failed to establish the fact that plaintiff was gi passenger upon one of the defendant’s cars when her injuries were sustained.

The plaintiff did not directly state that she boarded an Eighth avenue car, or a car in Eighth avenue, nor that she was thrown from a car in the line of the defendant’s route, her testimony being merely that she “ went right to the corner and took the car.1” It appears that upon this occasion she left her place of employment, situated on Fourteenth street, between Seventh and Eighth avenues, and proceeded up-town upon the ear which she boarded, yet, should we concede, in the absence of proof, that Eighth avenue formed the only immediate intersection with Fourteenth street where a line of cars proceeding up-town was operated, the testimony considered would be entirely consistent with the fact that the plaintiff went, without loitering, to any particular corner of that street where a car going in the desired direction might be found, and while an inference might be drawn that she had the corner of Eighth avenue in mind while testifying, we should be disinclined to held this sufficient, without more, to charge the defendant company. Other evidence appears, however, which is sufficient to support the verdict upon this point.

During the cross-examination of the plaintiff’s witness Duffy, defendant’s counsel produced a'letter, written by the witness to the defendant, regarding the accident in question, and offered it in evidence. This letter was received in evidence, without limitation, and the further cross-examination was devoted merely to 'showing a discrepancy between certain dates as given.

In this document appeared a statement that the plaintiff “was thrown from one of your cars,” and the witness was in no way examined concerning the statement for the purpose of explaining it or altering its effect. As it stood, then, it was properly evidence in support of the plaintiff’s case, Helwig v. Mut. L. Ins. Co., 132 N. Y. 331; 44 St. Rep. 439, and so to be weighed by the jury as against certain testimony relied upon by the defendant in support of a contrary inference, toward which it is now claimed that the evidence preponderated.

This evidence was, in one instance, the testimony of the plaintiff, that the conductor in charge of the car wore “ one of those light base-ball caps,” whereas the defendant’s witness testified that the conductors in its employ wore dark colored caps, the conductors of the Ninth avenue road wearing those of a straw color. The remaining evidence upon which stress is laid is that the plaintiff has herself made a complaint, concerning this accident, at the stables of the Ninth avenue line.

In view, however, of the fact that the word “ light ” could weli have been intended to designate the texture of the material rather than its color, and that the plaintiff’s application to another railway company could reasonably be viewed by the jury as a mistake which was properly rectified upon its discovery, they taking into consideration the degree of intelligence attributable to the pláintifí, we are not inclined to disturb the determination reached.

We find no force in the argument that, upon the facts testified to, no negligence on the part of defendant’s servants was shown, and that the plaintiff was chargeable with contributory negligence. As the car slowed down at plaintiff’s signal that it was her intention to alight, she placed herself in a position which the jury could well find was not dangerous under the existing conditions, the cOntinuance-of which conditions, until the final stoppage of the car, the plaintiff had the right to expect in so far as it depended upon the exercise of reasonable care on the part of defendant’s servants. The unlooked-for movement of the -car, which caused the-plaintiff to loosen her hold, was due to the acts of the individuals managing it, and these acts were negligent. For the conductor, having been warned by the plaintiff of her intention, and having given the signal which resulted in the diminished speed of the car as it approached a standstill, was not justified in occasioning the resumption of speed until the passenger had alighted, and assuming, as contended, that he mistook plaintiff’s further signals after the car had failed to stop for a considerable space past the crossing where the signal of the driver had been given, and considered that she had changed her intention, still the defendant is chargeable with the negligence of the driver, who failed to obey the signal to stop given by the conductor, and merely decreased the speed of the car, thereby inviting plaintiff to assume the position which resulted in her injury. See Ganiard v. Rochester City & B. R. R. Co., 50 Hun, 22; 18 St. Rep. 692; 121 N. Y. 661; 30 St. Rep. 1012; Medler v. Atl. Av. R. R. Co., 36 St. Rep. 89; 126 N. Y. 669; 37 St. Rep. 963.

In view of the evidence as to the suspended, if not destroyed, earning capacity of the plaintiff, and the previous extent of that capacity, together with the expert testimony regarding the nature and probable result of her injuries, we are satisfied that the award of damages was not beyond the proper province of the, jury to make.

The exception to the court’s charge that mental pain and anguish could be considered as elements of damage presents no error,• Caldwell v. C. P., N. & E. R. R. R. Co., 7 Misc. 67; 57 St. Rep. 489, nor does the one general exception taken to the charging of plaintiff’s requests, Adams v. N. J. St. Co., 9 Misc. 25; 59 St. Rep. 720; Huerzeler v. Central C. T. R. R. Co., 139 N. Y. 490; 54 St. Rep. 863, and the other points raised by appellant are met by the views above expressed.

The judgment should be affirmed, with costs.

Bookstaver, P. J., concurs.

Pryor, J.

(Dissenting.)—I am not satisfied that the verdict is supported by sufficient evidence of the defendant’s negligence or of the plaintiff’s non-negligence.

It is neither clear that the conductor knew or should have known the precarious position of the plaintiff ; nor that he understood or should have understood her motion as a signal to stop.

The position she had assumed was evidently insecure; and that position as much as the accelerated movement of the car was the cause of her fall.

The damages too, I believe to be excessive.

There should be another trial of the cause.


author: BischoEE, J.

text:
    Heinrich Eckensberger, an Infant, etc., Resp’t, v. Bernard G. Amend, App’lt.

      (New York Common Pleas, General Term,

      Filed November 5, 1894.)

    1. Appeal—Dismissal of complaint.
    Failure to except to the denial of a motion for the dismissal of the complaint, or the direction of a verdict, made when all the proof is in, concedes that there is sufficient evidence to carry the case to the jury and to support the verdict.
    2. Appeal—Order denying motion for new trial.
    No appeal to the common pleas lies from an order denying a motion for a new trial.
    3. Appeal—Charge—Negligence.
    Refusal to charge, in an action for personal injuries, that “ if the view was unobstructed and the wagon in plain sight, it is evidence of negligence if the plaintiff did not see it approaching,” is error, where the request does not involve an assumption of facts contrary to the evidence.
    Appeal from a judgment of the general term of the city court of New York, which affirmed a judgment entered upon a verdict in favor of the plaintiff and an order denying a new trial.
    Action for personal injuries.

      Charles C. Nadal, for app’lt; Alfred & Charles Stechler, for resp’t.
   BischoEE, J.

The judgment of affirmance of the court below precludes examination into the evidence in this case for the purpose of determining the preponderance, Arnstein v. Haulenbeek, 16 Daly, 382; 34 St. Rep. 297; Smith v. Pryor, 16 Daly, 169, 30 St. Rep. 553; Rowe v. Comley, 11 Daly, 318, and failing an exception to the denial of a motion for a dismissal of - the complaint or the direction of a verdict, made when all the proof was in, we must assume that there was sufficient evidence to carry the case to the jury and to support the verdict. Barrett v. Third A. R. R. Co., 45 N Y. 628; Schwinger v. Raymond, 105 Id. 648; 7 St. Rep. 544. No such motion having been made in the case at bar, the exception to the denial of. appellant’s motion for dismissal, made when plaintiff rested, presents no ground for review, he having elected to submit the issues to the jury upon the whole evidence without objection, Sternwald v. Siegel, 57 St. Rep. 491; Barrett v. Third A. R. R. Co., 45 N. Y. 628, 632. The exception taken to the denial of the motion for a new trial is not available upon this appeal, Myers v. Cohn, 7 Misc. 185; and no appeal lies from the order denying such motion. Code Civ. Pro. § 3191; Pharo v. Beadleston, 2 Misc. 424; 50 St. Rep. 609.

While we are thus concluded as to the facts relating to the accident in suit, yet the remaining exception in the case presents error which calls for a reversal of the judgment. This exception was taken to the refusal of the trial justice to charge that “If the view was unobstructed, and the wagon in plain sight, it is negligence if the plaintiff did not see it approaching.” While the failure of a wayfarer, crossing a street, to look for approaching danger is not actual negligence as a matter of law, as it would be in the case where the crossing of a railroad track is attempted, yet the rights and obligations of pedestrians and drivers are correlative and each owes a duty to the other to avoid an accident. Reens v. Mail & Exp. Pub. Co., handed down herewith. The appellant was entitled to tlie charge as requested, leaving it to the jury to find how far the surrounding circumstances justified the plaintiff’s failure to see the approaching wagon, which failure unexplained by such circumstances, would certainly be evidence of a nonobservance of the duty, owing from him to the driver of the vehicle, Moebus v. Hermann, 108 N. Y. 349; 13 St. Rep. 648. The refusal to so charge was in effect a ruling that all the duty of avoiding the accident, in such a case, was upon the defendant’s servant, and it cannot be said that prejudice did not thereby result. According to the plaintiff’s testimony, the wagon came around the corner and then ran over him, but the defendant’s driver testified, on,the contrary, that he drove directly along the street, and was in plain view of the boy for a considerable space. While the jury may have believed the plaintiff’s story in this regard, and so have found that the wagon could not have been seen by him in time to avoid the accident, yet, in view of the conflicting testimony noticed, the request did not involve an assumption of facts contrary to the evidence, and the ruling made is not to be otherwise justified.

Judgment of the general and trial terms below reversed, and a new trial ordered, with costs to abide the event.

All concur.


text:
    Howard J. Forker, as Receiver, etc., App’lt, v. Walston H. Brown et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed November 5, 1894.)

    1. Fraud—Kinds.
    Fraud in law, is of two two kinds, actual and constructive.
    2. Same—Emotion.
    Fraud is never predicated of a mere "emotion of mind.”
    3. Pleadings—Fraud.
    The complaint must set forth the issuable or ultimate facts of which the claim of fraud is predicated.
    4. Same.
    Denials merely, though of matter-which a properly framed complaint ought to have affirmatively alleged, do not supply the omission of such matter.

      5. Corporations—Directors.
    Directors of a corporation are fiduciaries, and subject to the rule that persons, standing in such a relation, will not be suffered to retain a personal profit out of transactions respecting the subject matter of the trust.
    6. Same.
    The election of the cestui que trust, to avoid the contract, cannot be defeated by showing that the contract was in every respect fair and reasonable, and prompted by none but honest motives on the part of the trustee.
    7. Same—Receiver.
    In the absence of an allegation that there are creditors, or the company is insolvent, the receiver cannot insist that he may avoid, or dis-affirm, the acts of the company, done in fraud of the rights of creditors or others interested in the trust estate.
    8. Same—Disaffirmance.
    The right to disaffirm a contract or conveyance, on the ground of fraud, is inseparable from the equitable title to the property affected thereby.
    9. Same—Title.'
    It is only in proceedings, instituted for the purposes of the dissolution of a corporation, that title to the corporate property is transferred to the receiver.
    10. Appeal—Dismissal of complaint.
    Where the plaintiff does not ask for leave to amend, and the facts alleged in the complaint do not set forth a cause of action, the granting of a motion to dismiss the complaint is not a matter of discretion.
    Appeal from a judgment which directed the dismissal of the complaint for insufficiency of the facts alleged to constitute a cause of action.
    ■ Action against the directors of a corporation for an accounting as trustees under a constructive trust.

      Charles F. Fstwiclc ( William Strauss, of counsel), for app’lt; Robert Q-. Ingersoll, Wheeler II. Peclcham and Thomas F. Went-worth, for resp’ts.
   Bischoff, J.

No evidence was adduced on the trial, and the complaint was dismissed for insufficiency of the facts alleged to constitute a cause for action. The judgment recites that certain allegations of the complaint, those referring to the construction contract of the railroad company with Brown, Howard & Co., were waived or withdrawn in open court, but since the record does not support the judgment in this respect-, we are constrained to predicate our decision of the complaint as it was presented to us upon this appeal. Kley v. Healy, 127 N. Y. 555; 40 St. Rep. 215.

5. Fraud, in law, is of two kinds, actual and constructive. The former arises from deception practiced by means of the misrepresentation or concealment of a material fact; the latter, from a rule of public policy, or the confidential or fiduciary relation which one of the parties affected by the fraud sustained towards the other. It is a constituent of actual fraud that the party alleged to have been defrauded was deceived. Lefler v. Field et al., 52 N. Y. 621. No positive dishonesty of purpose is required to show constructive fraud. Am. & Eng. Ency. of Law, vol. 8, p. 635.

The facts constituting the fraud must be alleged, that is to sayr the complaint must set forth the issuable or ultimate facts of which the claim of fraud is predicated. Goodrich v. Dorman, 38 St. Rep. 198. Fraud not alleged cannot be proved. Chautauqua Co. Bk. v. White, 6 N. Y. 236; Bailey v. Ryder et al., 10 id. 363.

Treating the complaint in this action asoné predicated of actual fraud, it is incontestably true that the facts alleged are inadequate to a cause of action. No misrepresentation, no concealment, and no deception is charged or inferable from the facts alleged. True, the complaint says that the defendants “ conspired and confederated together” to defraud the railroad company; but this, without allegations to the effect that the company was deceived, is palpably insufficient. Fraud is never predicable of a mere “ emotion of mind; ” to be actionable there must have been a wrong committed and an injury sustained. People v. Cook, 8 N. Y. 67.

Omissions in the complaint arc cured by admissions in the answer; Strauss v. Trotter, 55 St. Rep. 489; but denials merely, although of matter which a properly framed complaint ought to. have affirmatively alleged, do not supply the omission of such matter. Tooker v. Arnoux, 76 N. Y. 397; Scofield v. Whitelegge, 49 id. 259.

Assuming the plaintiff, in his capacity as receiver, to have succeeded to all the rights and property of the railroad company, and viewing the complaint as one grounded in constructive fraud, its allegations are sufficient. The facts alleged, and the facts inferable from such as are alleged, all of which must, for the purposes of the motion to dismiss the complaint, be taken as admitted, Culler v. Wright, 22 N. Y. 472; Marie v. Garrison, 83 id. 14; Kain v. Larkin, 141 N. Y. 144; 56 St. Rep. 675, are, in substance, that the plaintiff was duly appointed, and has duly qualified, as receiver of the “ Rochester & Pittsburgh Railroad Company,” a corporation organized under the laws of the state of New York, in September, 1881; that the plaintiff was, by order of the court, permitted to prosecute this action; that the defendants, while severally directors of the railroad company, and acting, or in duty bound to act, as such, caused the railroad company to issue to them, for their personal benefit, four million dollars of its capital stock in exchange for an equal amount of the capital stock of the “Rochester & Pittsburgh Coal & Iron Company,” which the defendants owned as individuals, and which was of lesser value than the railroad stock; that again, while the defendants were such directors, acting, or in duty bound to act, as such, they caused the railroad company to issue to them, for their personal benefit, twenty million dollars of its capital stock at less than its par and market values, 'from the sale of which stock the defendants have derived large profit; and lastly, that while such directors, acting, or in duty bound to act, as such, they caused the railroad company to enter into a contract with Brown, Howard & Co., for the construction of its way, and the extensions thereof, in which contract, and its performance, the defendants were at the time personally interested, and from which they derived a considerable profit.

Directors of corporations are fiduciaries and subject to the rule that persons standing in such a relation will not be suffered to retain a personal profit out of transactions respecting the subject matter of the trust, but will be compelled to account to their cestui que trust therefor. Beach on Mod. Eq. Jur., §§ 127, 845 ; Am. & Eng. Ency. of Law, vol. 17, pp. 91, etc.; Beach v. Miller, 17 Am. St. Rep. 298 and note; Munson et al. v. Syracuse, G. & C. R. R. Co. et al., 103 N. Y. 59; 3 St. Rep. 31; Koehler v. Hubby, 67 N. S. 339, Lawyers’ co-op. ed. and note; Wardell v. U. P. R. R. Co., 103 U. S. 509, L. co-op. ed.; McGourkey, Trustee, etc. v. The T. & Cent. Ry. Co., 146 U. S. 1079, L. co-op. ed., and note.

As in other cases of fraud, whether actual or constructive, the contract of a corporation with one or more of its directors is not void, but voidable merely at the election of the corporation, or others affected by the fraud. Skinner v. Smith, 134 N. Y, 240; 47 St. Rep. 528, and cases there cited. In the case of constructive fraud, however, arising from the fiduciary relation of the person charged therewith, the cestui que trust is not required to show that the contract was iniquitously conceived by the fiduciary. Neither can the election of the cestui que trust to avoid the contract, be defeated by showing that the contract was in every respect fair and reasonable and prompted by none but honest motives on the part of the fiduciary. Munson et al. v. The S., G. & C. R. R. Co. et al., supra.

A vice of the cdmplaint, however, whether it be considered as one for actual, or constructive fraud, is that the plaintiff’s right to disaffirm the transactions between the railroad company and the defendants, does not appear. It is not alleged that there are creditors of the railroad company, or that the company is insolvent. Hence the plaintiff cannot insist that he may avoid, or disaffirm, the acts of the company, done in fraud of the rights of creditors or others interested in the trust estate, pursuant to the authority conferred upon receivers and trustees generally, by chapter 314 of the Laws of 1858. Only such as are affected by the fraud may complain thereof. French v. Shotwell, 4 Johns. Ch. 555; aff’d, 20 Johns. 668. Yet it does not appear that either the railroad company, or its stockholders, have repudiated • the transactions with the defendants. Until such appears no cause of action is extant. Furthermore, the right to disaffirm a contract, or conveyance, on the ground of fraud, is inseparable from the equitable title to the property affected thereby. McMahon v. Allen, 35 N. Y. 402; Graham v. La Crosse & Ry. Co., 102 U. S. 107, L. ed.; Dickinson v. Durrell, L. R., 1 Eq. 337; Williams v. Boyle, 1 Misc. R. 364; 48 St. Rep. 713; Greenwood on Public Policy, 432, etc. But the complaint does not apprise us that the plaintiff has succeeded to the railroad company’s equitable title to the moneys sought to be recovered in this action. No transfer or assignment from the company is alleged. So far as appears the plaintiff, as receiver, is no more than the custodian of its property, without title, legal or equitable, thereto. Keeney v. Home Ins. Co., 71 N. Y. 396. Without statutory provision to that effect no transfer of title follows by operation of law from the appointment of a receiver of the property of a corporation. Decker v. Gardner, 124 N. Y. 335; 36 St. Rep. 267.

The complaint informs us that the plaintiff was “ appointed the-receiver of the property of the said railroad company, as also- its-books, papers, stock, bonds, rights, claims, franchises, contracts, things in action and effects of every kind and nature, with, the-usual power and duties of receiver;” but neither of the nature of the' plaintiff’s receivership, nor of the nature of the action or proceeding in which he was appointed receiver, is there any intimation. It is only in proceedings instituted for the purposes- of the dissolution of a corporation that the title to- the corporate property is transferred to the receiver, and the corporate existence- is merged in the receivership, but that is only by force of the- statute for such cases made and provided. Decker v. Gardner, supra.. It is not to be inferred, therefore, that the plaintiff has any title-whatever to the moneys sought to be recovered in this action, and without such title he is without right to disaffirm the contracts-under which the defendants are alleged to claim the right to. the possession of those moneys.

Where the plaintiff does not ask for leave to amend, and the facts alleged in the complaint do not set forth a cause of action, the granting of a motion to dismiss the complaint is not a matter of discretion. It is error to deny it. Tooker v. Arnoux, 76; N. Y. 397; Scofield v. Whitelegge, 49 id. 259; Coffin v. Reynolds, 3.7 id. 640.

The judgment should be affirmed, with costs.

All concur.


author: Bookstaver, P. J.

text:
    William A. Hankinson, Resp’t, v. William H. Riker, Resp’t, and Amy E. Vantine et al., App’lts.

      (New York Common Pleas, General Term,

      Filed November 5, 1894.)
    1. Evidence—Paiiol.
    It is only when the right asserted is independent of, and not growing out of, or does not originate in the relations established by, the instrument, that the effect of the writing may be varied by parol evidence.
    2. Mechanic’s lien—Notice.
    If the intended lienor, by inadvertence or inability to learn the true owner of the premises, places the ownership in the wrong p'erson, he will not be deprived of the benefit which the statute is designed to give.
    3. Same—Assignment of leasehold.
    An assignee of leasehold, for full value and in good faith, takes it free from an inchoate right to a lien, where no steps have been taken to consummate it.
    Appeal from a judgment in favor of plaintiff entered upon the report of a referee.

      Lockwood & Hill {John L. Hill, of counsel), for Yantine, app’lt; Strong & Cadwalader {George W. Wichersham, of counsel), for Dimond, app’lt and resp’t; Butler, Stillman & Hubbard {John Noiman, of counsel), for Otis, app’lt; T. J. Farrell {Dennis McMahon, of .counsel), for Riker, resp’t; John J. Adams & James McKeen, for Oomyn, resp’t.
   Bookstaver, P. J.

This is an action by the plaintiff to foreclose .a mechanic’s lien claimed by him against the property of the defendant, Amy E. Yantine, known as 355 Sixth avenue, and o£ William B. Riker, known as 353 Sixth avenue. Various others, lessees of the property and claimants to liens upon the same, are named as defendants and appear upon this appeal as appellants or respondents, but the question that will be first considered is that between the plaintiff and the defendant Yantine. The services and materials for which plaintiff is seeking compem sation, were furnished in making alterations in the above named buildings under the following circumstances: Defendant William H. Riker, who already held a lease of No. 353 Sixth avenue, secured an assignment to himself of an existing lease of the adjacent building No. 355, in order to enlarge his drug store by throwing the two- into one. At the time of the assignment defendant Yantine gave the following consent as to alterations: “And X do hereby further consent that the said Riker * * * shall have the right to make alterations and improvements to said premises, such alterations and improvements to become part of said premises and to remain thereon at the expiration of said lease as the property of the owner of the said premises at the time; ” and had received the following agreement from Riker'in exchange: “And I do hereby further covenant and agree with Amy E. Yantine that whatever alterations shall be made by me on said premises, I will, at the expiration of said lease, either leave the same thereon, or will restore said premises to its present condition if the said Amy E. Yantine shall so require the same-to be done * * * .” He thereupon engaged the plaintiff to make extensive alterations upon the two buildings for the purpose of throwing them into one so far as the interior was concerned and of giving them an exterior appearance of unity. The total expense of these changes was found by the referee to be $8,002.03, and 60.59 per cent, of this amount was charged to the building of Miss Yantine. Judgment against her was entered for costs and for $2,418.-44, which was found to be her proportionate share, upon the above basis, of the total expense, after deducting certain payments on account made by Riker, the tenant. Her defense is that she had conversations with Riker at the time of the execution of the above consent and was then informed and understood that the changes were to consist of the erection of an arch between the two buildings upon the first floor and an elevation of the ceiling of the same floor, and that her consent was limited to such alterations, the cost of which would have been far less than the amount which was spent. The sixteenth finding of the referee was as follows: “That the said Amy E. Yantine was in a position before signing the agreement aforesaid to ascertain the full particulars of the work which the said William H. Riker proposed to have done upon her said building, and the cost of the same. Precisely how far she did make inquiries,'and how full was the information she received, is not conclusively shown by the evidence, and is regarded by the referee as immaterial, as the said Amy E. Yantine could have ascertained every detail and might have refused her consent to the making of the alterations until she was furnished with detailed plans and specifications of the work and estimates of the costs.” It is urged that the referee here committed error in refusing to pass upon a material issue. But it should be observed that the issue was to restrict the meaning of the comprehensive language of the writing, and to this end parol evidence, is as a rule, incompetent. The only evidence offered was oral testimony as to conversations preceding the execution of the instrument which was objected to and admitted by the referee but with the restriction, as he said at the time, that it could not be used for the purpose of varying the writing. This restriction was correct we think, because the language is not such as is explainable between the parties, nor does the plaintiff stand in the relation of a stranger to it. As was said by this court in Spingarn v. Rosenfeld, 4 Misc. Rep. 523, 527; 54 St. Rep. 128, it is only when the right asserted is independent of, and not growing out of, the instrument, or does not originate in the relations established by the instrument that the effect of the writing may be varied by parol evidence. Here the plaintiff claims directly through the contract. As no competent evidence was offered to limit this written consent of Miss Yantine, no harm was done in giving full effect to the same although the broad language of the finding would make it appear that the result may have been reached upon a wrong theory. It is also argued that the basis of a mechanic’s right to a lien is an equity, viz : that the owner who has been benefitted by labor and material shall be liable for the value of the same; Pell v. Baur, 133 N. Y. 382; 45 St. Rep. 241, and that this basis is wanting here because it does not appear that the property was increased in fee value nor did the owner receive any increased rent as an inducement to,’ or a consideration for, her consent to the assignment. In reply it is sufficient to say that Riker’s agreement to leave all alterations as a part of the property if the owner so elected at the expiration of the leasehold period and his other agreements in the instrument were stated to be in consideration of Miss Yantine’s consent to the assignment to him.

The appeal of'the Otis Brothers & Co. as against William B. Riker, the owner of 353, is not well grounded. Their notice of lien states that “ The name of the person against whose interest a lien is claimed is the said William H. Riker, the lessee of the premises herein described and those claiming under him, to wit, etc.” The notice nowhere mentions the name of the owner o.f the fee nor intimates that it is sought to charge the fee interest. But their appeal as against defendant William H. Riker is good and personal judgment against him for $2,000 with interest and costs should have been rendered. The findings necessary to such a judgment were made by the referee at fol. 602, and sec. 15 of the act provides for such a judgment, although no lien is established.

The appeal of defendant Dimond rests on rather different and better ground. True, his notice of lien states that “the names of the owner or reported owners against whose interest a lien is claimed is W. B. Biker & Son and William H. Biker. That the name of the person by whom the claimant was employed, and to whom he furnished such material is William B. Biker & Sons ” (p. 252, B). Here was evidently an attempt to charge the owner of the fee albeit under a wrong name. Sec. 4 of the act, however, expressly provides that a failure to state the name of the true owner shall not impair the validity of the lien, and in Schmalz v. Mead, 125 N. Y. 188; 34 St. Rep. 779, the court said “ the statute provides that a mistake in the name of the owner shall not defeat the lien,” and in Walkam v. Henry, 7 Misc. Rep. 532, it was said: “ It would seem, from the language of the statute, that it was designed to protect the person seeking to establish his lien against any mistake as to the ownership of the property, and if, by inadvertence, or inability to learn the true owner of the premises, he places the ownership in the wrong person, he shall not thereby be deprived of the benefit which the statute designed to give.” This is just such a case. That the claimant was uncertain as to the name of the owner Is shown by his use of the word “ reported.” The defendant, W. B. Biker, argues that as “owner” under the act includes a lessee, and the names used in the notice of lien are those of the lessee (W. B. Riker & Son being the statutory name under which W. H. Riker continued the business) it must, therefore, be concluded that the interest sought to be charged was the leasehold.

We think, however, that “owner” as used in the notice should be taken in its ordinary sense of owner of the fee. True, a much broader significance is expressly given to the term owner ” by § 1 of the act, but this is only for the purpose of explaining the act by defining the term as used therein and does not attempt to give a new and different meaning to the word when used by parties to a proceeding under the act. Such a construction would be contrary not only to a fair interpretation of § 1, but also to § 25, which explicitly declares that the act is to be construed “liberally to secure the beneficial interests and purposes thereof.” 'The facts necessary to sustain the lien were sufficiently found, we think, particularly in findings 38, 39, 40, .41 and 42, at folios 321-329. W. B. Biker’s consent is not distinctly found but the evidence warrants such a finding and the case contains a certificate that all the evidence is printed therein.

The appeal as against respondents Marshall, Bolton, Bunyon & Oahoun and their successors the present owners of the leasehold, the William B. Biker & Son company, is not well taken. At the time the above four individuals secured thé assignment of the leasehold no lien had been filed. They made careful search of the records and it is.undisputed that they paid a full value in good faith. The claim that the leasehold passed to them subject to the obligations of William H. Biker, their assignor, to various mechanics for improvements made to the property, is not valid. The ground of the claim is that property may not only be subject to a lien, but also to an inchoate right to a lien, although no steps have been taken to consummate the same. No authority in support of such a contention has been presented, nor do we find good basis for it in reason. So far as Miss Yantine’s relations to these respondents are' concerned, her subsequent assent to the assignments made to and by them must be regarded as a waiver on her part of any objection to their violation, if any, there was, of the covenant not to assign.

The judgment should, therefore, be affirmed with costs of this appeal to the respective respondents and against the respective appellants who have taken appeals herein against them; except that the judgment should be modified to the extent of entering a personal judgment against William H. Eiker in favor of Otis Brothers & Co. for the amount found due them by the referee, with interest but without costs to either party as against the other; and except that the judgment should be reversed as to the appellant Margaret A. Dirnond, and a new trial of issues as between her and the defendants William B. Eiker and William H. Eiker, should be ordered with costs of this appeal to the appellant Dirnond to abide the event

All concur.


text:
    Joseph Hughes, Resp’t, v. Henry Hughes, Impleaded, etc., App’lt.

      (New York Common Pleas, General Term,

      Filed November 5, 1894.)

    1. Appeal—Case
    Error, to be available for reversal, must appear from tbe record.
    2. Same—Harmless.
    Errors, not prejudicial, do not afford ground for reversal.
    3. Pleadings—General denial—Ejectment.
    In an action of ejectment, anything, which tends to disprove the plaintiff’s allegations of seizin and right to possession, is admissible in evidence under a general denial of those allegations.
    Appeal from a judgment for the plaintiff which awarded him exclusive possession of the premises- and was entered upon the verdict of a jury in an action of ejectment.
    The complaint alleged exclusive seizen of the plaintiff in fee simple and wrongful entry and detention of possession by the defendant. The answer denied the allegations of the complaint, and for a further defense asserted that the defendant is the owner in fee simple of an undivided one-eighth of the premises and in pos-i session as tenant in common with the plaintiff, the derivation of the defendant’s alleged title to such one-eighth being specifically pleaded.

      John J. Gleason, for app’It; Edw. W. B. Johnston, for resp’t.
   Bischoee, J.

The notice indicates that the appeal is intended to be taken from the judgment only. Hence we are not to inquire into the weight of the evidence but to confine our review to the exceptions taken to the rulings of the trial court before the verdict was rendered. Code Civ. Pro. §§ 992, 994, 995, 1346; Boos v. World Mut. L. Ins. Co. 64 N. Y. 236; Matthews v. Meyberg, 63 N. Y. 656.

From the evidence adduced for the plaintiff it appeared that on November 4th, 1874, by deed dated and recorded on that day, the executors of Thomas Kivlen, deceased, conveyed the premises described in the complaint to Lewis Johnston ; that Johnston, by .lease dated November 4th, 1874, and recorded November 15th, 1874, demised the premises to William Hughes, the tenant in possession, for five years and five and one-half months, with a privilege of ten years’ renewal from May 1st,-1880; that thereafter Johnston conveyed the premises, subject to the lease, to Mary C. Powers, the wife of William P. Powers, by deed dated November 5th, 1874, and recorded November 12th, 1874; that Mary C. Powers, by deed dated May 1st, 1875, and recorded three days later, conveyed to Catharine Barrett, again subject to the lease to William Hughes. It is from this period that the divergence in the claim of title by the respective parties to this action begins.

For the plaintiff it further appeared that by deed dated May 20th, 1875, and recorded May 25th, 1875, Catharine Barrett conveyed the premises to Bridget Barrett, subject to the lease to William Hughes ; that Bridget Barrett died in February, 1878 or 1879, intestate, leaving her surviving her husband, Michael, who died in August, 1881, a son, Michael, a daughter, Delia Dugan, and six grandchildren, Irene Florence Marian, Julia Therese, Lavinia, John Joseph, Emma and Mary Kate Barrett, the children of a deceased son, John Barrett; that -Emma and Mary Kate Barrett died intestate, and without issue, leaving their three sisters and brothei’ surviving, as their heirs at law; that on J une 25th, 1891, by deed of that date, and recorded August 11th, 1891, Michael Barrett, the son of Bridget, conveyed his interest to the plaintiff ; that by deed of like date and record Delia Dugan, the daughter of Bridget Barrett, and Irene Florence Marian Barrett, and Julia Therese Barrett, two of the surviving grandchildren of said Bridget Barrett, conveyed their respective interests, also to the plaintiff; that on behalf of Lavinia Barrett and John Joseph Barrett, who were infants at the time, proceedings were instituted in the supreme court, pursuant .to the statute for such cases made and provided, for a sale of their interests; and that these proceedings culminated in a sale and conveyance of the interests of the infants to the plaintiff by deed dated and recorded September 22nd, 1891. From the testimony -of witnesses called for the plaintiff it appeared that William Hughes, the tenant in possession, attorned to Bridget Barrett, and that the latter was in receipt of the rents which accrued under the lease from Johnston to William Hughes. The record title and possession being thus united in Bridget Barrett, the plaintiff’s right to possession, as the grantee of her heirs at law, seems indisputable.

By answer, however, the defendant-appellant denied the plaintiff’s seizin and right of possession. He further asserted that by a deed dated May 3rd, 1875, seventeen days before her .deed to Bridget Barrett, and recorded November 8th, 1877, about two and a half years after the record of the last mentioned deed, Catharine Barrett conveyed the premises in question to William P. Powers; that Powers died leaving a last will and testament by wbicb he devised his real property in equal shares to Joseph Hughes, the plaintiff, and William Hughes, a brother of the plaintiff and the defendant-appellant; that thereafter said William Hughes died, intestate, leaving him surviving, as his heirs at law, the plaintiff, the defendant-appellant, Susan Riordan, a sister, and Michael William Hughes and Mary C. Adams, the children of a deceased brother, Michael Hughes. As such heir at law of William Hughes the defendant-appellant claimed to be entitled to one undivided one-eighth of the premises and to be in possession as tenant in common with the plaintiff.

The exceptions specially urged and argued upon this appeal may be grouped together into two classes, those relating to the exclusion of the alleged deed from Catharine Barrett to William P. Powers, the alleged will of William P. Powers, and of evidence tending to show Bridget Barrett’s knowledge of the existence of the prior deed to Powers at the time of Catharine Barrett’s deed to her; and those relating to the exclusion of evidence tending to show that at the time of the several conveyances to the plaintiff the premises were in the adverse possession of the defendant-appellant from which fact it would appear that the several conveyances to the plaintiff were not such in fact because contrary to the statute which provides that “every grant of lands shall be absolutely void, if at the time of the delivery thereof, such lands shall be in the actual possession of a person claiming under a title adverse to that of the grantor,” R. S. Banks Bros. 7th od. vol. iii., p. 2196, § 147, and so, that the plaintiff had failed to establish his title and right to possession.

Neither of the exceptions comprising the first mentioned class presents error. Error is never presumed. To be available for reversal it must appear from the record. Standard Oil Co. v. Triumph Ins. Co., 64 N. Y. 85; Tracey v. Altmeyer, 46 N. Y. 598, 604; Appleby v. Erie Co. Sav. Bk., 62 N. Y. 12, 18; Carman v. Pultz, 21 N. Y. 547; Briant v. Trimmer, 47 N. Y. 96. By omitting from the record presented to ns the papers, of the exclusion of which the defendant-appellant seeks to predicate error ; we are denied every opportunity for judging of their relevancy or materiality, or of their admissibility without proof of their due execution. We are unable, therefore, to determine that any error, prejudicial to the defendant-appellant, was committed in the exclusion of those papers. Errors, not prejudicial, do not afford ground for reversal. Biershenk et al. v. Stokes, 7 Misc. 692; 58 St. Rep. 330, and cases there cited. Eor the like reason the record does not disclose that the testimony offered to show knowledge on the part of Bridget Barrett of an alleged prior deed to Powers related to relevant or material matter,, or that the exclusion of the testimony operated to the defendant-appellant’s prejudice.

The second class of exceptions, however, presents error for which the judgment must be reversed. As already stated, it appeared from testimony for.the plaintiff that William Hughes was in possession of the premises as the tenant of Bridget Barrett. It likewise appeared from the testimony that the defendant-appellant was associated in business, conducted upon the premises, with William Hughes, and that during the lifetime of the latter, and while he continued in possession, the defendant-appellant succeeded to the business and possession. Furthermore, the plaintiff was permitted to introduce in evidence a paper executed by William Hughes only, and purporting to be a lease from him to the defendant-appellant. From these facts an inference was that the defendant-appellant entered into possession as tenant of the plaintiff’s grantors and so was within the rule which estops a tenant from disputing his landlord’s title and right to possession. The court so ruled.

The plaintiff was entitled to recovery of possession only-upon the strength of his own title, not upon the failure of the defendant to prove title and right to possession in himself, Roberts v. Baumgarten et al., 110 N. Y. 380; 18 St. Rep. 162, and anything which tended to disprove the plaintiff’s allegations of seizin and right to possession was admissible in evidence under a general denial of those allegations. Griffin v. The L. I. R. R. Co., 101 N. Y. 348; O'Brien v. McCann, 58 N. Y. 373. It would have been competent to the defendant-appellant to show that the instruments under which the plaintiff claimed to have derived title and right to possession were forgeries. Hence, if for other extraneous matter, the instruments purporting to be grants to the plaintiff were not such in fact, the defendant-appellant was entitled to the admission of such matter in evidence. When, however, the defendant-appellant offered himself as a witness in his own behalf tq show that Powers was in possession of the premises during William Hughes’ occupancy, and that neither Powers, nor William Hughes, nor the defendant-appellant, ever acknowledged Bridget Barrett or the plaintiff’s claim of title, but that they and each of them disputed the claim, and held possession of the premises adversely thereto, and under Catharine Barrett’s alleged deed to Powers, his testimony was excluded under objection from the plaintiff’s counsel regarding its relevancy, materiality and competency.

It nowhere appeared that the testimony offered and excluded related to a personal transaction or communication between the witness and a deceased person through whom he claimed to have derived title. Hence the witness was not disqualified under the provisions of § 829 of the Code of Civil Procedure.

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

All concur.


text:
    Anna A. Johnson, Resp’t, v. The New York Elevated Railroad Company et al., App’lts.

      (New York Common Pleas, General Term,

      Filed November 5, 1894.)

    1. Damages—Elevated railroad.
    It does not follow that, because the trial judge found the fee value of the plaintiff’s premises, at the time of the trial, to be fully up to the value of 1873, his conclusion that the plaintiff sustained a loss to such value, is without support.

      % Same.
    Where the trial judge finds the damage to have resulted from the structure and operation of trains, no error is to be predicated of his refusal to find that no damage resulted from either cause separately.
    3. Evidence—Elevated railroads.
    Evidence of the decline of rentals of property on the same street with the property alleged to have been damaged, is relevant.
    Appeal from a judgment for the plaintiff which was entered upon the decision of the court.
    Action by an abutting owner to restrain the maintenance and operation of the defendants’ elevated railroad in the street in front of the plaintiff’s premises; and for damages alleged to have accrued from the loss of rents due to the presence of the railroad.
    Davies, Short & Townsend (Julien T. Davies and Brainard Tolies, of counsel), for app’lt; Johnston & Jahnston (Edward W. S. Johnston and Ehtgene D. Hawkins, of counsel), for resp’t.
   Bischoff, J.

The judgment is assailed for alleged insufficiency of the evidence to show pecuniary damage to either the fee or rental value of the plaintiff’s premises, and for alleged erroneous rulings on the trial.

The premises affected by the action were owned by the plaintiff since May 1, 1888, and consist of the two four story buildings known as 633 and 635 Third avenue, with the plot of ground upon which they are erected, the plot being forty-nine feet six inches in width, sixty-four feet four inches in depth, and situated in the southeast corner of Third avenue and Forty-first street, in the city of New York, with the frontage and width on Third avenue. The present buildings are the same which existed in 1872, and the first floors thereof are used for stores, the upper floors for dwellings. The defendant’s elevated railroad extends on and along Third avenue, in front of the premises, was constructed in 1878, and has been continuously operated since that time. The action was begun in 1890 and tried in 1892.

The injurious character of the physical effects of the railroad upon the plaintiff’s premises appeared from evidence which remained uncontroverted; and the awards of $1,280 for rental, and $2,000 for fee damages, find adequate support. Freúnd, a builder, real estate owner, dealer and agent, of more than twenty years active experience in the locality of the plaintiff’s premises, testified to the effect that the premises in 1873 were worth $61,000, and that the ratio of rental to fee value, then generally prevalent, was ten per cent.., but that at the time of the trial, in 1892, the ratio had declined to from seven to eight per cent The accuracy of this testimony was not challenged. From the testimony of Kyle and Kennan it appeared that the aggregate annual rental value of the plaintiff’s premises in 1892 was not above $4,576, which, at at the ratio of eight per cent, to the fee value, fixed the latter at not more than $57,200. From Freund’s testimony it is to be concluded that the rental value of the plaintiff’s premises in 1873 was $6,100, and it is apparent, therefore, that nad the premises recovered their former rental value, they would have been worth at the time of the trial, at the ratio of eight per cent., $76, 250.

By fair inference from the evidence, also, the continued depression of the fee and rental values of the plaintiff’s premises was attributable to the presence of the defendant’s elevated railroad. Erennd further testified that rents generally in the locality of the premises declined from 1875 to 1880 ; but that in 1880 there began a period of gradual recovery which endured, with regard to property elsewhere than on Third avenue, until the time of the trial, at which time the rents had reached a point which was in excess of the rents of 1873. Further, that with regard -to property on Third avenue the recovery ceased about 1885 or 1886, from which time they had again declined, and at the time of the trial were from twenty to thirty per cent, below the rents of ‘1873. It was conceded that Third avenue, because of its greater traffic, was a street superior to other streets, adjacent to and crossing it. Testing the witness’ statements by the annual rents shown to have been collectible from premises other than those affected by this action, he appears to be well corroborated. Lots on First avenue, where there is no railroad, in 1873 sold for $6,500, in 1891 for $12,000. In 1873, at the ratio of ten per cent., their rental value was $650, in 1892, at. the ratio of eight percent., $960, an increase of nearly fifty per cent. Betjeman’s property at Third avenue and Thirty-sixth street, rehted in 1873 for $2,600, in 1892 for $2,100, a decrease of about twenty per cent. The Seasongood house, 764 Third avenue, in 1874 rented for $3,876, in 1892 for $3,132, a decrease of over twenty per cent. Kelner’s house, 670 Third avenue, in 1874 produced an average monthly rental of $834, which was at the rate of $4,008 annually; in 1892, the annual rental was $3,252, a decrease of about twenty per cent.

It does not follow that, because the trial judge found the fee value of the plaintiff’s premises at the time of the trial to be fully up to the value of 1873, his conclusion that the plaintiff sustained a loss to such value is without support. As already stated, if the plaintiff’s premises had shared in the recovery of the rental values of 1873, their fee value at the time of the trial, observing the changed ratio of rental to fee value, would have been $15,250, above what it was in 1873.

No error is to be predicated of the trial judge’s refusal to find that the plaintiff s premises were not damaged by the railroad structure apart from the operation of trains thereon, and vice versa. He properly found the damage to have resulted from the structure and the operation of trains, treating the two elements as integral parts of one and the same obstruction. Peyser v. Met. Ry. Co., 13 Daly, 122; Sperb v. Met. Ry. Co., 137 N Y. 155; 50 St. Rep. 204.

Evidence of the decline of rentals of property on the sam'e street with the property alleged to have been damaged, is relevant and admissible. Myers v. Met. Ry. Co., 46 St. Rep. 130; 19 N. Y. Supp. 223, The Cook Case, cited by the defendants’ counsel, Cook v. N. Y. El. R. R. Co., 3 Misc. Rep. 248; 52 St. Rep. 253, holds no more than that such evidence does not sustain the claim of damage in the absence of evidence tending to show the rental value of the premises alleged to have been damaged. No error, prejudicial to the defendants, appears from other exceptions urged on this appeal.

Re taxation of the costs, so as to include the item of disbursements for the stenographer’s minutes furnished by direction of the trial judge was authorized. Baker v. Codding et al., 52 St. Rep. 416.

The judgment should be affirmed, with costs.

All concur.


author: Daly, Ch. J.

text:
    Munczi Lajos, Resp’t, v. Eden Musee American Company, Limited, App’lt.

      (New York Common Pleas, General Term,

      Filed November 5, 1894.)

      1. Statute of frauds—Not performed within year.
    An oral agreement for services, then actually commenced, and to be performed within the year, is not within the statute of frauds.
    2. Contract—Breach.
    Where the plaintiff has agreed to furnish an orchestra, misconduct of one of his employes, for which the latter has to be discharged, is a constructive breach of the contract.
    3. Pleading—Contract—Performance.
    Under a plea of performance, evidence of prevention of performance, or of waiver, is inadmissible.
    Appeal from a judgment of the city court, general term, affirming a judgment entered upon the verdict of a jury in favor of plaintiff for $150.

      Seligman & Seligman ( George W. Seligman, of counsel), for app’lt; Dittenhoefer, Gerber James (A J. & J. M. Dittenhoefer, of counsel), for resp’t.
   Daly, Ch. J.

The action was to recover $150 upon a contract for services as musician and leader of orchestra. The complaint alleged a contract made in November, 1891, for the period of one year at a weekly salary of $500, that plaintiff entered upon his duties under said agreement and performed all his obligations toward the defendant, and claimed a balance of fifty dollars a week for the three weeks of the 9th, 16th and 23d of April, 1892. The answer denied these allegations and set- up that the contract was not in writing and was not by its terms to be performed within a year.-

The defendant’s exceptions present for review the questions whether the plaintiff’s contract was made with defendant or with one Biringcr; whether it was within the statute of frauds as alleged in the answer; whether it was performed so as to entitle plaintiff to recover; and also present certain rulings of the trial court in the admissions of evidence.

The contract was undoubtedly made directly with the defendant through its president, Mr. Ilellman. Although Mr. Biringcr negotiated with plaintiff by means of cable dispatches and letters between America and Europe, it was expressly stipulated between them that no contract was to be made until the arrival of the plaintiff in this country, and after that occurred, which was .on December 22d, 1891, the contract was made directly with Hellman. Two or three days after his arrival the plaintiff went to Heilman and asked for a written contract and Heilman replied, “We do not need a written contract. You will be paid promptly. My word should be sufficient and yours is sufficient for me.”

There had been on plaintiff’s arrival a conversation between plaintiff, Heilman and Biringer, looking to the making of a written contract between Heilman and Biringer and then a contract between Biringer and the plaintiff guaranteed by Heilman; but this was not carried out, and was merely intended to give Biringer a standing as manager and to secure him a commission or payment out of the plaintiff’s salary. Biringer, while not an employe of the defendant, “was continually in the Eden Musee; it was his business; he had superintendence over the musicians; made out programmes; received applications for engagements,” and all his negotiations by letter and cable with plaintiff disclosed that he was acting for Heilman, who had originally, as early as June, 1891, in Europe, negotiated with plaintiff for the proposed engagement, and had stipulated for all the material points of the contract, viz., an orchestra of sixteen men, to include plaintiff’s brother Bela, at $500 a week, with a commission or allowance to Biringer of fifty dollars weekly out of that sum. The first cable from Biringer to the plaintiff in the following October was, “Cable if you can begin December 8th in New York on terms arranged with Heilman; ” to which plaintiff replied, “ Heilman’s condition accepted, sixteen, including Bela; arrange for passage on my account; advance $300.” In the last communication, a letter to plaintiff from Biringer, the latter writes, “ at the request of Mr. Heilman,” and says, “ With respect to the contract for a year. Mr. Heilman is of the opinion to make the same first here with me in order to have no difficulties in the country. I hope that in the meantime the word of Mr. Heilman and that of mine will be sufficient.”

When plaintiff arrived no such written contract was made, and the only agreement was, as we. have seen, directly between plaintiff and Heilman. There was, therefore, no question on that point to submit to the jury, and it is not necessary to discuss the correctness of the instruction of the court to the jury upon the submission of that question; nor the ruling excluding Biringer’s statement as to the arrangements between him and the Eden Musee. Long after the engagement of plaintiff commenced, and on January 26th, 1892, Heilman, as president, made a written contract with Biringer, by which the latter agreed to furnish the plaintiff’s orchestra, but this arrangement could in no way affect plaintiff’s direct agreement with Heilman,

The conversation between Heilman and the plaintiff, at and after his arrival in this country and the commencement of his service, was the only contract between the parties, and while it was not in writing it was for sefvices then actually commenced and to be performed within the year and therefore was not within the statute. The communications verbal and written before the plaintiff’s arrival in New York did not constitute a contract because it was expressly stipulated that no contract was to be made until arrival. Upon the day of arrival tbe plaintiff commenced his services at defendant’s request and a few days after, while they continued, the verbal stipulation was entered into with the president. Although there was then no reference to the terms and conditions previouly settled by the president in his oral communication with plaintiff at Marienbad and in the subsequent cables with Biringer, it was manifest that the service then commenced and continued at the president’s request was the employment previously negotiated for and settled upon ; and that this was so, was manifest from the regular payment of the weekly sums stipulated for up to the last three weeks of the engagement. The case is like Blake v. Voight, 34 St. Rep. 295; 11 N. Y. Supp. 716, where the agreement was not to take effect until a subsequent date, that of the actual commencement of the services ; and in this case we have what was wanting in Blake v. Voight, an express verbal agreement at and after the time of the actual commencement of the services.

The remaining question is as to performance by plaintiff of his obligations so as to entitle him to recover in the action. His orchestra was to consist of sixteen persons including his brother Bela. This person became insubordinate and was discharged by Biringer with defendant’s concurrence for infractions of the rules. In fact, Biringer paid him a large sum to rid the establishment of his presence. The defendant then deducted from plaintiff’s weekly payment $50, the amount of Bela’s salary. It is for these deductions that the present action is brought.

The plaintiff is entitled to his whole weekly payment unless he has committed a breach of his contract. Misconduct of one of his employees for which the latter has to be discharged, is a constructive breach of the contract; for it is an implied obligation of a contractor in plaintiff’s position, that those under him and subject to his authority will conform to the rules of the establishment into which he has introduced them, and observe the proprieties essential to the decent conduct of a'place of public resort; and the defendant would have the right to exclude therefrom any offender. After the discharge of Bela, however, the defendant would not permit the- plaintiff to fill his place with any other performer, but continued plaintiff under the contract, deducting from his weekly payments $50, which was the stipulated compensation of Bela.

■ Upon this state of facts, it is not easy to perceive what plaintiff’s grievance is, nnless he has suffered some damage from the discharge of Bela, but if the latter voluntarily left his employ, upon receipt of a consideration from defendant, there could be no liability on his part to Bela for wages or otherwise ; and not having to pay Bela the $50 per week withheld by defendant he has suffered no loss.

At all events, there could be no recovery by plaintiff upon the cause of action alleged in the complaint, viz. : for performance of the contract. He had not performed the contract because of Bela’s misbehavior and consequent discharge or voluntary departure, and the averment of the complaint that he had performed all his obligations to' defendant was not sustained. That allegation must be intended as an averment of performance of the contract; otherwise it is a mere legal conclusion and ineffectual for any purpose as pleading. Under a plea of performance evidence of prevention •of performance or of waiver, is inadmissible. No recovery could be had except upon proof of performance and this could not be shown. The defendant objected in due time to the admission of the evidence as irrelevant and moved to dismiss the complaint for want of proof of performance. The denial of the motion was error, for which a new trial must be granted. O'Leary v. Board of Ed., 9 Daly, 161; Elting v. Dayton, 43 St. Rep. 363; Morowsky v. Rohrig, 4 Misc. 167; 53 St. Rep. 220; Oakley v. Morton, 11 N. Y. 25; Clift v. Roger, 25 Hun, 39. If plaintiff have a cause of action for damages it must be shown under an amendment of the complaint.

Judgment reversed and new trial granted with costs to appellant of the appeals and of the foimer trial to abide the event.

All concur.