author: DALY, P. J.

text:
    Malkmesius v. Pauley et al.

    (Supreme Court, Appellate Term, First Department,
    July 29, 1896.)
    Fraudulent conveyances—Fraud of assignor’s agent.
    An assignment for benefit of creditors, executed at the suggestion of the assignor’s agent, who had exclusive control and management of the busi ■ ness, will be set aside if the agent thereby intended to defraud the assignor’s creditor’s, though the assignor- was personally ignorant of liis intention.
    Motion for reargument. For decision on appeal, see 39 N. Y. Supp. 1095.
   DALY, P. J.

A case in the appellate division, reported since the argument of this appeal, is relied upon in support, of this motion. The decision in question (Bank v. Wallace, 4 App. Div. 382, 38 N. Y. Supp. 851) holds that a general assignment for the benefit of creditors, made by a co-partnership, is not vitiated by the fraud of one partner in diverting (without the knowledge of the others) funds of the firm to the payment of his own debts, nor by his design, equally unknown to his co-partners, to secrete its assets to his own use. This betrayal of his trust does not impeach the good faith of the firm, who were in fact defrauded by him, and who, when his fraud was discovered, made the assignment in order to protect their creditors. But what would have been the decision of the court if the fraud of the co-partner, instead of being directed against his fellow members in the firm, had been in their interest,—if the fraud consisted in concocting a false schedule of liabilities and making an assignment'in order, to thus defraud their creditors? Upon such a state of facts the innocent members of the concern would not be permitted to reap the benefit of their co-partner’s fraud; and if it appeared that he had been able to effect it by their surrender of the whole control of the business to him, and that they made the assignment and schedules as he dictated, the court would not have assisted the attempted fraud by holding the assignment to be valid. The assignors in this case stand in that predicament, and the fraud in the case was perpetrated by their managing agent for their benefit, or at least for the benefit of the assigned assets; the assignors being nominally such owners, while the agent had the exclusive control and management of the business, if not the exclusive interest in it. He was the husband of one of the assignors. He failed in business, and was carrying on a concern nominally for his wife and another party, who knew nothing of its circumstances, and left it entirely to him. They executed the assignment at his suggestion. It was an attempt to defraud the creditors of the business, and cannot be sustained on the ground that they were personally ignorant of the intention of the agent. So far as the validity of the instrument is concerned, his intention is to be deemed their intention, as their acts simply effectuated his fraudulent purposes.

The motion should be denied..


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Manhattan Railway Co. et al. v. O’Sullivan et al.

    (Supreme Court, Appellate Division, First Department,
    July 31, 1896.)
    Eminent domain—Appeal from award—Right op appellant to stay.
    A judgment directing payment of the award in condemnation proceedings will not he stayed pending an appeal on the ground that the award wes excessive, hut a hond may he taken from the landowners conditioned to make restitution in case the award should be reduced.
    Appeal from special term, New York county. •
    Application by the Manhattan Railway Company and the Metropolitan Elevated Railway Company to acquire title to certain real property in the city of New York, owned by Christina O’Sullivan, Eugene O’Sullivan, Vincent J. O’Sullivan, Percy J. O’Sullivan, Ernest P. O’Sullivan, and Charles A. O’Sullivan. An order setting aside the award of the commissioners as excessive was reversed by the appellate division (40 N. Y. Supp. 326) and petitioners appealed to the court of appeals. From an order staying execution until decision of the appeal to the court of appeals the landowners appeal.
    William V. Rowe, for appellants.
    E. C. James, for respondents.
   PER CURIAM.

The order which was appealed from in this proceeding is a final order. Code Civ. Proc. sec. 3371. Whether an appeal lies to the court of appeals is a matter to-be determined by that court (Barnum v. Bank, 6 How. Prac. 82; Morrison v. Morrison, 16 Hun, 507), and cannot be considered upon the hearing of this motion. If the plaintiffs are entitled to review that order, it is quite clear that they should have either a stay of proceedings or some other way of protecting their rights during the pendency of the appeal. Under ordinary circumstances, where the question at issue-was whether or not the successful party was entitled to recover any tiling, it would be the better course to give a stay of proceedings upon the defeated party’s giving a bond to-pay the judgment if it should be affirmed, as was done in. this case pursuant to the order of the special term. But that is not this case. Here there is no doubt of the right of the defendants to have from the plaintiffs, as the price of this property which is to be condemned, a considerable sum-, of money, and the only question is whether the sum which, was awarded to them was more than they should have recovered. The plaintiffs have the property, and as long as they hold the property it certainly is no more than just that, they should pay to the defendants, whose property they are in possession of, the purciiase price. It would seem not to be quite fair that the plaintiffs, holding the property,, and conceding ¡.hat they were bound to pay to the def endantssomething because they had appropriated it, should be at the same time permitted to keep the property, and keep also that sum which should be awarded to the defendants as-the value of it. If the plaintiffs succeed in their appeal, and this order is reversed, and a new appraisal ordered, the amount which is to be paid by them to the defendants may possibly be reduced; and the danger that, if they pay the amo.unt of the present award, they may not be able to obtain restitution from the defendants, is the only filing to be apprehended. That danger is very easily averted by requiring that the defendants, if they desire to have the amount of the award paid to them before the final determination of the appeal by the court of appeals, shall give to the plaintiffs a bond approved by a justice of this court in the penalty of $40,000, conditioned that, if the final order shall be reversed, and a new appraisal made, upon which a less sum shall be awarded to the defendants than is awarded by the present order, they will, make restitution to the plaintiffs of the difference between the amount which they receive under this order and ¡.hat which they shall receive under a new order if the award shall be reduced. If the defendants desire to obtain the award upon those terms, it is proper that they should be permitted to have it.

The order should therefore be reversed, and the stay vacated upon condition that the defendants serve upon plaintiffs within 10 days a bond in the sum of $40,000, with two sureties approved by a justice of this court, conditioned that if the final order appealed from shall be reversed, and upon a new appraisal the award shall be reduced, the defendants will make restitution to the plaintiffs of the.difference between the amount received under the present award and the amount which they shall receive under the new award if it shall be vacated. If such bond is given within 10 days, the stay shall be vacated; if not, the order will be affirmed, without costs to either party of this appeal.


author: PER CURIAM,

text:
    William S. Ridabock v. Metropolitan El. Ry. Co. et al.

    (Supreme Court, Appellate Division, First Department,
    July 31, 1896.)
    Dosts on appeal—Stenoobafhbrs’ pees.
    The amount paid for a copy of the stenographers’s minutes obtained for the purpose of properly preparing amendments to the case on appeal is a taxable disbursement.
    Appeal from special term, New York County.
    Action by William S. Eidabock against the Metropolitan Elevated Eailway Company and another for an injunction and damages. Plaintiff obtained a judgment, from which defendants appealed to the appellate division, where it was affirmed. 39 N. Y. Supp. 131. On taxation of costs the clerk refused to allow plaintiff to tax the amount paid for the stenographer’s minutes used in preparing amendments to defendants’ case on appeal. A motion for a retaxation of costs .was denied, and plaintiff appeals.

      S. T. Cannon and Wilfrid N. O’Nesl, for appellant.
    Davies & Rapallo, for respondents.
   PER CURIAM,

The rule in this department is that the amount paid for a copy of the stenographer’s minutes, obtained for the purpose of properly preparing amendments to the case on appeal, is a taxable disbursement. Sebley v. Nichols, 32 How. Prac. 182; Cutter v. Morris, 7 N. Y. St. Rep. 426; Stevens v. Railroad Co. (Super. N. Y.) 9 N, Y. Supp. 707. The cases contra deal mainly with minutes obtained for use upon the trial. It is said however, in Pfaudjer Co. v. Sargent, 43 Hun, 154, that the stenographer’s fees are not taxable, even when procured for the purpose of enabling a party to prepare amendments to a case. This was not necessary to the decision of that case, and it seems to overlook rule 32 of the general rules of practice, which provides that, “if the party proposing the amendments claims that the case should be made to conform to the minutes of the stenographer, he must refer at the end of each amendment to the proper page of such minutes.” The respondent is thus practically compelled to procure the stenographer’s minutes if he desires a fair and truthful record. He can only obtain this by complying with the rule. Thus the rule, in substance, makes the disbursement “necessary, according to-the course and practice of the court,” as provided in section 3256 of the Code of Civil Procedure, The appellant here presented an affidavit to the clerk to the effect that “the copy of the stenographer’s minutes was actually and necessarily obtained and used for the purpoe of preparing the amendments of plaintiff to the defendants’ proposed case on appeal.” Under the circumstances, we think the item should have been allowed.

The order appealed from should therefore be reversed, with $10 costs and disbursements, and the motion for a re-taxation granted, with $10 costs, and the item allowed.


text:
    Matter of Havermeyer’s Estate. Matter of Humfrevile.
    (Supreme Court, Appellate Division, First Department,
    July 31, 1896.)
    Decree of surrogate—Modification.
    Error in allowing commissions to an executor may he corrected by appeal from the decree, and therefore a modification of the decree by the surrogate by striking the allowance of the commissions is not authorized by Code Civ. Proc. § 2481, subd. 6, which provides that the surrogate may modify his decree for “ fraud * * * or other sufficient cause.”
    Appeal from surrogate’s court, New York county.

      Judicial settlement of the accounts of J. Lee Humfreville one of the executors of the will of Mary J. Havermyer. On January 27, 1896. a decree was made refusing to remove Mr. Humfreville as executor. On appeal this decree was reversed. 38 JST. Y. Supp. 292. In the meantime, on March 17, 1896, a decree was made settling the accounts of Mr. Hutnfreville from July 15, 1892, to tieptember 5, 1893, and allowing him commissions. From an order denying a motion to modify the ‘decree of the surrogate by striking out the allowance of commissions to the accounting party the other executors appeal.
    Henry H. Whitman, for appellants.
    Abram Filing, for respondent.
   PER CURIAM.

By subdivision 6 of section 2481 of the Code the surrogate is given power to vacate or modify his-decree for “fraud, newly-discovered evidence, clerical error, or other sufficient cause.” The appellants rely upon the last ground. It has been held that the section was intended to cover' only those cases where relief could not be had by appeal or action to set aside the decree. In re Til-den, 98 N. Y. 434. It would seem in this case that a remedy existed for the appellants in an appeal from the decree-.awarding the commissions. They might, in that proceeding, have offered evidence of Mr. Humfreville’s misconduct and consequent forfeiture of his right to commissions, and, if the surrogate failed to give this evidence proper effect, have appealed, and obtained a reversal. (The fact that an executor is not entitled to his commission till allowed by the surrogate plainly indicates an intention that the surrogate should review his conduct in the accounting.) The only answer of the appellants is that it would have been unfair to Surrogate Fitzgerald, who made the decree in the accounting proceedings, to appeal from that decree, since he made it relying upon Surrogate Arnold’s decision in the other proceeding that Humfreville had not been guilty of misconduct. , There is no force in the suggestion. Surrogate Fitzgearld was bound to act upon the evidence adduced before him. If' the appellants adduced none, they have only themselves to ■ blame. It is said that the power of the surrogate under section 2431 is analogous to that of a court of record under section 1283 (Tilden’s Case), end that the latter section permits the court to vacate or modify in case of “error of fact not arising upon the trial.” The error here, however, plainly did arise upon the trial. Surrogate Fitzgerald thought that ^Humfreville had been guilty of no misconduct, either because no evidence of misconduct was advanced, or because he misconstrued the effect of what • was given. This error, if it was the surrogate’s, was to be remedied by appeal, and by appeal only.

The order should be affirmed with $10 costs and disbursements. ■


text:
    Matter of Seagrist’s Will.
    (Supreme Court, Appellate Division, First Department,
    July 31, 1896.)
    Costs—Judgment of appellate court.
    An award of costs against the contestants of a will personally on appeal does not charge them personally with the costs of the contest in the surrogate’s court.
    ' Appeal from surrogate’s court, New York county.
    Proceeding for the probate of the will of Nicholas Sea-grist, deceased. From an order denying a motion to charge costs of probate personally on Francis S. K. Seagrist and Theresa Seagrist, they appeal.
    For a report of decision admitting the will to probate see 82 N. Y. Supp. 1095.
    George W. Taylor, Jr., for appellants.
    Joseph H. Hayes, for respondents.
   PER CURIAM.

Upon making the original decree, which was appealed from, the surrogate exercised his discretion as to the award of costs in the manner which at that time seemed to him just. The order of the appellate division made upon the appeal was not intended to affect the award of costs made by the surrogate, but applied only to the costs of the appeal. It did not follow, because the appellate division awarded costs against the contestants personally upon the appeal, that they should personally be charged with the costs of the original contest in the surrogate’s court. The direction of the appellate division with regard to costs of the appeal had no effect, therefore, upon the decree of the surrogate awarding costs, which stood as effectual unless it was reversed or modified upon the appeal. The fact that the appellate division had awarded costs of the appeal against the-contestants personally afforded no reason why the surrogate should change his original award. No other reason was suggested, and therefore the order appealed from was proper, and should be affirmed, with $10 costs and disbursements.


author: PEE CTJEIAM.

text:
    Arthur A. Carey v. Cecilia Kieferdorf et al.

    (Supreme Court, Appellate Division, First Department,
    July 31, 1896.)
    Parties—Right to intervene—Interest in controversy.
    _ One who has no interest in or lien on mortgaged, premises is not entitle! to be made a defendant in an action to foreclose tne mortgage.
    Appeal from special term, New York county.
    Action by Arthur A. Carey against Cecilia v. Kieferdorf and others to foreclose a mortgage. From an order granting the application of T. E. Egan to be made a party defendant, plaintiff appeals.
    H. V. N. Philip, for appellant.
    James W. McElhinney, for respondents.
   PEE CTJEIAM.

The order appealed from should be reversed, for the reason that the applicant was not a judgment creditor of the owner of the premises at the time of the filing of the notice of lis pendens. He was consequently neither a necessary nor a proper party, and he had no right to intrude into the action merely to secure notice of the sale of the premises. Having avowedly no defense to the action as he had no lien upon or interest in the premises at the time of its commencement, his application should have been denied, with costs.

The order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs.


author: LANDON, J. PUTNAM, J.

text:
    Benjamin M. Tasker v. Thomas Ryan.
    (Supreme Court, Appellate Division, Third Department,
    April 14, 1896.)
    Replevin—Who liable—Mortgagees.
    A mortgagee of chattels to which the mortgagor had no title is liable to the real owner where he sells the chattels under the mortgage and delivers them to the purchaser after notice of the owner’s claim, and it is no defense that he parted with the possession or control of the chattels before the action against him was commenced. Putnam; J., dissenting, on the ground that plaintiff failed to show title.
    Appeal from county court.
    Eeplevin by Benjamin M. Tasker against Thomas Eyan. There was a judgment in favor of defendant, and plaintiff appeals.
    M. H. O’Brien for appellant.

      Potter & Keellogg (Y. A. Kellogg, of counsel), for respondent.
   LANDON, J.

I advise reversal. The judge directed a verdict. The jury might have found upon the evidence; (1) that Be Forrest, the vendor of the furniture to Saunders, never forfeited Saunders’ right to pay the balance due the vendor upon it; (2) that Brewer, in paying the vendor the balance due from Saunders thereon, did so as the tenant of Saunders, or as his agent and manager; (3) that die bill of sale from the vendor, DeForrest, to Brewer .(defendant’s Exhibit 2), was merely given to enable Brewer, as he said, to show Saunders as a voucher. These facts being found, then Brewer had no title. The mortgagees had only such rights as Brewer, the mortgagor, had at the time he gave the mortgage; and thus the mortgage under which defendant sold the furniture did not impair Saunders’ right. The defendant did more than a mere servant disclaiming power to deliver goods intrusted to him by his master upon the demand of a stranger. There is evidence tending to show that after he knew of plaintiff’s claim he exercised dominion over the property, assumed to control the possession, and, as he testifies, delivered the property to the purchaser. Allen v. Crary, 10 Wend. 349; Knapp v. Smith, 27 N. Y. 277; Boyce v. Brockway, 31 N. Y. 493, Wells, Rep. secs 362, 364; Story, Ag. sec. 312. “He who assumes to deal or intermeddle with chattels not his own must see to it that he has a warrant therefor from the owner, or from one who has authority from the owner to confer such warrant.” Spraights v. Hawley, 39 N. Y. 441. The fact that defendant may have parted with the possession or control before this suit was commenced would not be a defense. Barnett v. Selling, 70 N. Y. 494; Nichols v. Michael, 23 N. Y. 264.

PARKER, P. J., and HERRICK and MERWIN, JJ.$ concur.

PUTNAM, J.

(dissenting.) The plaintiff, to sustain his action in the county court, was required to establish his title to the chattels described in the complaint, and that they were, or had been, wrongfully possessed, taken, or detained by the defendant. I think he failed to show title. Both parties claim under De Forrest, who made a conditional contract for the sale of the property in question, with the plaintiff’s vendor, Saunders, by which- he retained the title to the furniture until the whole purchase price was paid. Neither Saunders nor plaintiff eArer paid, or tendered payment of, the balance due for such purchase price, and hence neither acquired title. The title to the furniture so remaining in De Forrest, Brewer (under whom Newton and; Hill and the mortgagees claim) paid the balance due on the-contract, and received the bill of sale, which transferred to him De Forrest’s interest in said furniture. It did not appear that Brewer made the payment to De Forrest with money belonging to Saunders; nor was there any evidence, sufficient to submit to a jury, that there Avas any breach of contract or fraud on the part of BreAArer in taking the bill of sale. The evidence of the witnesses Armstrong and Hicks, tending to show that, under the contract between Saunders and BreAver, the latter was to pay certain bills of the former, is not in conflict Avith the uncontradicted testimony of: Brewer that he was to pay these bills from Saunders’ share of the profits of running the hotel, and that there Avere,in fact, no profits. The evidence etablished the fact that BreAver was compelled to advance money to pay for the furniture in. question. I think, therefore, he had the right (advancing his own money to retain the furniture in the hotel) to take an assignment of De Forrest’s interest therein; and Saunders, or the plaintiff, as his vendee, could only obtain title thereto by paying or tendering the blanee due on the purchase price thereof.

I am also of the opinion that plaintiff failed to sIioav such a wrongful interference with or detention of the property in question by the defendant as Avas necessary to be proved, to maintain the action against him. Brewer obtained the legal title to the furniture through the bill of sale from De For-¡ rest, the legal owner thereof. That title Brewer transferred to.the mortgagees, for whom, at the time the action was commenced, the defendant was acting as agent. If it is conceded that the act of BreAver in taking the bill of sale was a fraud on Saunders, yet there Avas no evidence that the mortgagees or Ryan knew of BreAver’s breach of faith. Therefore, before the plaintiff could maintain the action, it Avas necessary to make a proper demand for the possession of the goods. Hovey v. Bromley, 85 Hun, 540, 67 St. Rep. 147; Goodwin v. Wertheimer, 99 N. Y. 149,1 N. E. 404. It Avas shown that the property Avas moved from the Eldridge house by the mortgagees to the warehouse of one of them, and hence, when the demand Avas made of Ryan, was in the actual possession of the mortgagees. It does not appear that the furniture Avas at "that time even in the custody of Ryan. In Goodwin v. Wertheimer, supra,—also an action of replevin,—the goods Avere demanded of an agent in charge of them. Andrews, J., in his opinion, says:

“The refusal of a servant to deliArer goods intrusted to him by his master, on a demand by a stranger, is not sufficient to maintain repleA’in against the serArant, nor against the master, when a demand and refusal is necessary to málce the possession of the defendant tortious.”

It will be observed that in the case cited the servant or agent had the actual custody of the property sought to be recovered, while in'the case under consideration, as far as the evidence discloses, the property remained at the warehouse, and in the actual possession and custody of the mortgagees. Hence, there was no sufficient demand of the goods to show an unlawful detention thereof by Ryan or the mortgagees, or to entitle the plaintiff to maintain the action. It was not shown that the defendant was ever in the possession of the furniture in question. As we have seen it was moved by the mortgagees to their warehouse, and at the time of the demand and sale, was at that place, presumably in the actual possession and custody of the mortgagees. It is true -one of the witnesses (Converse) testified that the defendant, at the time he replevied the property, was in possession of the goods in question; but on cross-examination he said:

“1 meant, when I Said I found the goods in the possession of Thomas Ryan when I served the second papers on him, that they had not been disturbed,—they were in the same place.”

Such testimony did not show any legal possession by Ryan of the property. There was also evidence of a demand on Ryan on behalf of the plaintiff, and failure to deliver the goods; but such evidence was unimportant, unless Ryan the .shown to be in possession of them,—unless he could deliver them. The property was bid in by one of the mortgagees. The defendant testified that he delivered it to the purchaser, but the notice of sale under which he assumed to act, and the evidence, showed that he was acting as a mere agent and auctioneer for the mortgagees; and, when he thus testified, he must be understood to have meant that he made such ■delivery as such agent. When the plaintiff made the demand of Ryan, the latter could not surrender property not in Ms possession or custody, but in the actual possession and custody of the mortgagees. Hence an action based upon his unlawful detention thereof could not be maintained. See Mount v. Derick, 5 Hill, 455; McDougall v. Travis, 24 Hun, 590; Mires v. Solebay, 2 Mod. 242; Alexander v. Southey, 5 Barn. & Aid. 247; Welton v. Holmes, 26 Wkly. Dig. 24; McClellan v. Wyatt, 26 Abb. N. C. 144, 11 N. Y. Supp. 686. The ■cases cited do not conflict with principles established in Spraights v. Hawley, 39 N. Y. 441; Boyce v. Brockway, 31 N. Y. 490; Knapp v. Smith, 27 N. Y. 277; Allen v. Crary, 10 Wend. 349; and 1 ke cases. An auctioneer may become liable to an action of replevin, if he is at the same time a bailee as in the case of Spraights v. Hawley, supra; or if he assume to exercise an unlawful direction or control of the property of another, as in Allen v. Crary, Knapp v. Smith, and Boyce v. Brockway, supra. But in this case the defendant never exercised, or assumed to exercise, any dominion or control over the property in question. It remained in the actual possession of his principals, and the only connection defendant had with it was as their agent. Byan did not advertise the property for sale. The mortgagees did that, Byan being merely their servant or agent.

I think, therefore, the trial court made the proper disposition of the case, and that the judgment should be affirmed, with costs.


author: PEB CUBTAM.

text:
    Samuel White et al. v. Edwin M. Hall et al.

    (Supreme Court, Appellate Division, First Department,
    July 31, 1896.)
    Change of venune—Convenience of Witness—Affidavit.
    Moving affidavit is insufficient where it merely states that affiant expects to prove certain things, and not that he can prove them.
    Appeal from special term, New York county.
    • Action by Samuel White and others against Edwin M. Hall and others to recover chattels. From an order denying a motion to change the place of trial from the county of New York to the county of Tompkins, defendants appeal.
    Tompkins & Cobb, for appellant Hull and others.
    Halliday & Denton, for appellant First Nat. Bank.
    James L. Baker, for respondents.
   PEB CUBTAM.

The rule that an application of this kind can not be granted without an affidavit of merits in proper form is too well settled to be now questioned. The affidavit of merits submitted by the defendants in this action was clearly insufficient, and for that reason the motion below was properly denied. The moving affidavit of Henry L. Clark was also insufficient in that it states that he expects to prove certain things by witnesses, and not that he can prove them. See McPhail v. Bidout, 83 Hun, 446, 31 N. Y. Supp. 934; Thurfjell v. Witherbee, 70 Hun, 401, 54 St. Rep. 96. We do not wish to be understood as passing upon the merits of this application, and this decision is without prejudice to a renewal of the motion at special term upon proper affidavits.

Order affirmed, with $10 costs and disbursements, without prejudice to another application upon new papers.


text:
    Frank Sgobel et al. v. Fillippo Cappadonia et al.

    (Supreme Court, Appellate Division, First Department,
    July 31, 1896,)
    Liens—Creation—Payment of custom duties.
    Where plaintiffs advanced money to pay the customs duties on goods imported by defendants, the advances being made under an agreement that plaintiffs should have a lien on the goods for the money so advanced, they are entitled by subrogation to the lien of the government for th© duties.
    Appeal from special term, New York county.
    Action by Frank S obel and Horace W, Day against Filippo Cappadonia and the E„ L„ Goodsell Company, Limied. From an order continuing an injunction restraining defendants from disposing of certain boxes of lemons consigned to defendant Cappadonia in any other manner than by selling the same at auction, and from paying over either to defend, nt Cappadonia or to the owner of the lemons so m ch of the proceeds of the sale as will be sufficient to-satisfy plaintiffs’ claim of $250, defendants appeal.
    Dallas Flannagan, for appellants.
    George A. Black, for respondents.
   PER CURIAM.

The plaintiffs having advanced to the defendant Cappadonia the money necessary to pay the duties upon the lemons under an agreement that they should have a lien upon such lemons for the amount so advanced, and the defendant Cappadonia having used the money borrowed fr< xm the plaintiffs for the payment of such duties, we think tl at the lien of the government upon the lemons for duties passed to the plaintiffs by subrogation; so that the plaintiffs became vested with the lien of the government for such duties, and would be entitled to enforce such lien in this acetion. The shippers of the lemons have no claim against these plaintiffs, and have no right to offset as against them the claim against the defendant Cappadonia so as to destroy the plaintiffs5* lien. The shippers of the goods make no claim here to the proceeds of the sale,-and it would be unjust to allow the proceeds of the sale to be paid to the defendant Cappadonia to enable him to defraud the plaintiff by repudiation of his agreement with them that the goods themselves should be disposed of, and the amount that plaintiffs advanced repaid out of the sale of the goods.

The order should therefore be affirmed, with $10 costs and disbursements.


text:
    Richard H. Savage v. Frank I. Neely.
    (Supreme Court, Appellate Division, First Department,
    July 31, 1896.)
    1. Examination of party beforr trial—Affidavit.
    An affidavit of the examination before trial of defendant in an action for an accounting as to books sold by defendant under a royalty contract is sufficient where il states that defendant’s testimony is material and necessary; that plaintiff expects to prove the number of books printed, the number sold, to whom sold, the amounts received therefor, the number of books on hand, and the amount of all charges against defendant, and the nature of the same; and that such facts are within the knowledge of defendant, but not within the knowledge of plaintiff; and that the testimony of defendant is taken for the purpose of being read on the trial of the action.
    3. Same—Subpoena duces tecum.
    Though plaintiff, on'an application for the examination of defendant before trial, can not have a discovery of books and papers, he may have a subpoena duces tecum to compel defendant to bring his books and papi rs, in order that plaintiff may, on the examination of defendant, prove any entry tending to substantiate his case.
    Appeal from special teian, New York county.
    Action by Richard Savage against Frank Tennyson Neely for an accounting, and for an adjudication that a certain agreement is null and void. From an order Amcating an order for the examination of defendant before trial and a subpoena duces tecum plaintiff appeals.
    C. Bainbridge Smith for appellant.
    Burnett Stayton & Hagen for respondent.
   PER CURIAM.

The plaintiff is an author and the defendant a publisher. They entered into an agree nent Avhereby the defendant was to publish and to pay the plaintiff a specified royalty upon the books sold. The plaintiff, in his complaint, asks for an account of all the books sold by the defendant under this contract. In such an actio", upon proper papers, the right to an examination before trial is almost a matter of course. The plaintiff here states that the defendant’s testimony is material and necessary for the prosecution of the action; that he expects to pro've by the examination “the number of books printed; the number1 of books sold, to whom sold, and the amounts reeeÍAred therefor; the number of books on hand, and the number of damaged books returned; and the amount of all charges and claims against the plaintiff, and the nature of the same.” He also avers that the facts Avhicli he thus expects to prove are £Svithin the knoAA'ledge of the defendant, but are not within the knowledge of the plaintiff, and the testimony of the said defendant is taken for the purpose of being read by. and on the part of the plaintiff on the trial of this action.” This was amply sufficient to entitle the plaintiff to an order for the exa minion of the defendant before trial. As to the subpoena duces tecum, it is sufficient to say that, while the plaintiff can not, in this proceeding, have a discovery of b xilcs and papers, lie may, upon the examination of the defendant, prove any entry or paper tending to substantiate his claim. To effectuate this, a subpoena dittoes tecum is appropriate. The use which may be made of such books and papers upon the examination is stated in Horst v. D. G. Yuengling Brewing Co., 1 App. Div. 629.

The order appealed from should be reversed, with $10 costs and disbursements, and the motion to vacate the order for the examination of the defendant, and the subpoena duces tecum, denied, with $10 costs; and a day will be fixed in the order for the examination.


author: PER GURAM.

text:
    Charles R. Sickles v. Thomas Canary et al.

    (Supreme Court, Appellate Division, First Department,
    July 31, 1896.)
    Mortgages—Foreclosure—Appointment op receiver.
    An affidavit made by plaintiff’s attorney as to the value of the premises, stating that he is informed by plaintiff that it is extremly doubtful whether the premises will sell, subject to the other incumbrances, for enough to pay plaintiff’s mortgage, is not sufficient to justify the appointment of a receiver.
    Appeal from special term, New York county.
    Action by Charles R. Sick els against Thomas Canary and others to foreclose a mortgage. From an order appointing a receiver of the rents of the premises pendente lite, defendants appeal.
    Joseph C. Rosenbaum, for appellants,
    Jonathan C. Ross, for respondent,
   PER GURAM.

There was no proof before the court below to show that the mortgaged premises were insufficient security to pay the mortgage debt. The only affidavit upon the subject of the value of the property was the affidavit of the attorney for the plaintiff, in which he says that he is informed by the plaintiff that it is extremely doubtful whether the mortgaged premises will sell at a foreclosure sale, subject to the incumbrances mentioned, for enough to pay the amount of the mortgage to the plaintiff. There is nothing to show that the plaintiff had any knowledge as to the value of the premises, or upon what he based his statement; nor is the belief of the plaintiff’s attorney evidence of the fact. The rule is well settled that, to justify the appointment of a receiver of mortgaged premises, there must be some evidence of the insufficiency of the properly to to satisfy the mortgage, and in the absence of such evidence the court is not justified in taking the property away from the possession of the mortgagor pending the foreclosure ac- ■ tion. As to the value of the ¡aroperty, the defendant swears positively that it is worth at least $100,000, and that statement is not denied, except by a communication of the plain- • tiff to his counsel, not under oath. We think, therefore, that1 the appointment of a receiver was unauthorized; and the, order appealed from must be reversed, with $10 costs and' disbursements, and the motion for a receiver denied, with $10 costs.


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    Matter of Brook Avenue.
    (Supreme Court, Appellate Division, First Department,
    July 31, 1896.)

      Í. Street assessments—Amount of award—Review.
    The amount to be awarded for land taken is within the exclusive control of the commissioners, and they should net be interfered with, where there is nothing to impair the fairness of the award.
    2. Same—Power of commissioners.
    The authority given to the commissioners by Laws 1893, cc. 267, 660, to fix the assessment area, will not be interfered with unless they abuse their discretion or are palpably wrong.
    Appeal from special term, New York county.
    Application by the board of street opening and improvement, for and on behalf of the mayor, aldermen, and commonalty of the city of New York, relative to acquiring title to Brook avenue from East 155th street and Webster avenue to Wendover avenue, in the Twenty-third and Twenty-fourth wards of the city of New York. From an order affirming the report of the commissioners of estimate and assessment, the New York & Harlem Railroad Company, the Farmers’ Loan & Trust Company, and William H„ Morris, appeal. Affirmed.
    Truman H. Baldwin, for appellants.
    John P. Dunn, for respondent.
   PER CURIAM.

This is an appeal from an order of the court, at special term, confirming the report of commissioners appointed in thp above-entitled matter. Certain objections were filed by William H. Morris, the New York & Harlem Railroad Company, and the Farmers’ Loan & Trust Company, executors and trustees under the will of Charles K. Beck, deceased. Conspicuous among these objections is one relating to the alleged insufficiency of the' ■compensation awarded to each of the objectors for the damage sustained by them in consequence of the improvement; but we do not find that there is anything to impair the fairness or the honesty of the award made in this record, and it has been so frequently determined that the question of amount of compensation is so clearly within the exclusive control of the commissioners, and that the court will not interfere with their honest judgment upon that subject, that it is somewhat suprising that the question is constantly brought up, notwithstanding the fact that it has been so long and so thoroughly settled. In re William and Anthony Streets, 19 Wend. 694; In re Broadway Widening, 63 Barb. 575; In re Boston Road, 27 Hun 409; In re Wendover Ave. (Sup.) 20 N. Y. Supp. 563. The attempt made in this case to impugn the fairness of the action of the commissioners is altogether futile, and without any reasonable ground to sustain it. We are to consider only such objections, therefore, as are urged in connection Avith the principle upon Avhich the awards were made, and to ascertain whether there has been any violation of the law, Avhereby the rights of either of these appellants have been impaired. The three sets of objections, upon being analyzed, may be grouped as follows i (1) That the area over which the assessment has been extended by the commissioners largely exceeds the area of the property actually benefited by the improvement; (2) that, as to ■ some of the land of the appellants, the assessment for bene-' 'fit has been much augmented, in consequence of certain ■other lands within the area of the assessment being assessed at only 50 per cent, of the value of such other lands, as ascertained and fixed by the tax commissioners; (3) that some of the lands of the appellants have been assessed at more than one-half of their value, as such Aralue has been ascertained and fixed by the commissioners of taxes of the city of New York. These are objections which apply to the principle upon what the commissioners in this proceeding acted, and are therefore properly before the court.

Concerning the first objection, as those objections are grouped, it is evident that the commissioners acted in accordance with the provisions of the Act of 1893 (chapter 267 and chapter 660) amending the consolidation, act. By the second section of chapter 267 of the LaAVS of 1893, section 958 of the consolidation act Avas amended so as to provide, with reference to certain improvements, “that the said commissioners of estimate and assessment who may be appointed as herein provided, shall not be limited as to the area of assessment by any of the provisions of the act hereby amended, but may assess for such opening all parties and persons, lands and tenements, as they may deem to be benefited by such improvement, to the extent which said commissioners of estimate and assessment [being] such parties, persons, land and tenements benefited thereby.” The word “ being” is evidently a clerical error, and the word “deem” is meant. By the fifth section of chapter 6G0 of the Laws of 1893, section 970 of the consolidation act is amended so as to provide that, in making the estimate of damage and benefit, the commissoners should not be circumscribed within any definite limits, “ but they shall and hereby are authorized to extend such estimate and assessment to any and all such lands, tenements and hereditaments and premises as they may deem to be benefited by the operation.” Authority was therefore given by the law to these commissioners to fix the area of the assessment, and unless it is shown clearly that there is some abuse of their discretion, or that they are palpably wrong, or there is a manifest error, the court should not interfere. It seems there were 60 parcels of laud included within the area of assessment that could not be assessed, under the provisions of the law, at more than one-half of the value fixed by the tax commissioners.

Concerning the second objection, it is claimed that the as-' sessment upon the appellants’ land has been increased by so much of the total amount of assessments as the commissioners in this proceeding were unable to charge upon these 60 pieces by reason of the limitation referred to. It is not made to appear distinctly that the appellants’ lots have borne a part of this burden, but we assume that that must necessarily. have been the case. The objection now under consideration; Avas distinctly raised and passed upon in Ee Wendover Ave. (Sup.) 20 N. Y. Supp. 563; and we are not able to see in this case that the commissioners have increased the assessment beyond the amount of benefit received by the appellants’ lands as the result of the improvement.

As to the third objection: This objection iirvolves considerations of fact. It is said that the assessment on blocks 2092 and 2391 exceeds one-half of the tax valuation of the Brook avenue halves of those blocks, and the benefit to the Webster aArenue halves thereof, and should be vacated or reduced. We have looked into the record and the evidence before the commissioners sufficiently to enable us to say that Ave can not declare that they were clearly in error respecting their conclusions on this subject. It is for the objectors to show that they have been assessed more than one-half the value of their lauds as fixed by the tax commissioners; and taking into cons deration all the elements of fact involved, and as they are discussed in the briefs of counsel on both sides, we are unable to say that either with reference to the property of the Beck estate, or of the New York & Harlem Railroad or of Mr. Morris, the commissioners have violated the section of the statute relating to this subject.

The oi'der confirming the report of the commissioners is affirmed, with costs.


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    James S. Hanlon v. Henry Marcus et al.

    (Supreme Court, Appellate Division, First Department,
    July 31, 1896.)
    1. Attachment—Affidavit by agent—Knowledge of facts.
    An affidavit that affiant was the duly authorized agent of plaintiff, followed by a positive recital of the facts on which it was claimed that plaintiff had a cause of action, and a statement that the transaction out of which the cause of action arose was had with the agent, but without expressly stating that affiant was the agent, is sufficient to show that affiant, had personally knowledge of the facts stated.
    2. Sane—Quality of evidence.
    An allegation in the affidavit as to the amount alleged to be due need not be made by plaintiff, but may be made by plaintiff’s agent, since the facts are to be proved merely to the satisfaction of the judge (Code Civ. Proa § 636), and the best evidence is not necessary.
    Appeal from special term, New York county.
    Action by Mabel Hanson against Henry Marcus and others-From an order denying a motion to vacate an attachment,, defendants appeal.
    B. N. Cardozo, for appellants.
    Arthur Rothschild, for respondent.
   PER CURIAM.

James S. Hanson, upon whose affidavit this attachment was granted testified that he was the duly-authorized agent, manager, and attorney in fact of the plaintiff. Following that statement in the affidavit, he proceeded to state as of Iiis own knowledge the facts upon which it was claimed that the plaintiff had a cause of action against fhe defendants. It appears from the affidavit that all the business transacted between the plaintiff and the defendants under the agreement which lay at the foundation of the cause of action was had with the agent, but whether or not Hanson was that agent does not appear by direct statement. Since, however, the.statements in the affidavit purport to be. of his own knowledge, it must be assumed (following the case of Ladenburg v. Bank, 5 App. Div. 219, 29 N. Y. Supp.. 119.) that he had knowledge of the facte as to which he swore. The rule laid down in that case—which is founded upon good sense— is that statements in affidavits will be presumed to have been made upon personal knowledge, except when stated to have been made upon information and belief, or where it appears affirmatively or by fair inference, upon the face of the affidavit itself, that the statements could not have been made, and were not made, upon personal knowledge. There is nothing in the affidavit here from whch it can be even inferred that Hanson did not have personal knowledge of all the facts he stated, and, applying the rule as above laid down, it must be assumed that he knew whereof he spoke.

It is claimed, however, that the allegation in the affidavit that the amount claimed in the complaint was due, above all counterclaims known to Hanson or to the plaintiff, should have been made by the plaintiff; and the rule is invoked that in such cases it is the duty of -the party asking for the attachment to furnish to the judge the best evidence which can be procured. The law does not so require. The provision of the Code requires that the facts must be proved to the satisfaction of the judge. Code Civ. Proc. sec. 636. That is done, not necessarily by presenting to him the best evidence, but by presenting such evidence as is competent in its nature, and sufficient to prove the fact; and when that has been done the requirements of the statute have been complied with. That has been done in this case because the transactions were had with the agent, and the presumption is that the agent and manager of the plaintiff was the person who knew as to the condition of her affairs with the defendant.

For these reasons we think the affidavit is sufficient, and that the order denying the motion to vacate the attachment must be affirmed, with $10 costs and disbursements.


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    Maximilian Toch v. Henry M. Toch et al.

    (Supreme Court, Appellate Division, First Department,
    July 31, 1896.)
    Motion—For distribution or money in court.
    Where real estate has been sold under a judgment, and the surplus, after satisfying plaintiff’s claim, has been paid into court, a person who claims. to be entitled to a portion of the surplus may move, at the foot of the judgment, for the appointment of a referee to determine his interest.
    Appeal from special term, Mew York county.
    Action by Maximilian Toch, as administrator, against Henry M. Toch, as executor, and Bella B. Mayer, to recover certain legacies directed to be paid under the wills of Moses Toch and Bernard Toch, respectively, and to have said legacies declared liens on certain real estate, and to have said real estate sold, and out of the proceeds to have said legacies paid. From so much of the order as appoints a referee to as certain and report the amount due to Bella B. Mayer, or to any other person, which is a lien upon certain surplus moneys deposited with the chamberlain under the provisions of a judgment directing the sale of the real estate, and to report the priorities of the several liens, defendant Henry M. Toch, as executor of Bernard Toch, appeals.
    Louis Wertheimer for appellant.
    Charles G. F. Wahle, for respondent.
   PER CURIAM.

It appeai-s on this motion that, in pursuance of the judgment entered in this action, certain real estate was sold, and that from the proceeds of such sale the sum of $8,000 and interest was paid to the plaintiff, and the surplus was deposited with the chamberlain of the city of New York, to the credit of this action, to abide the further order of the court in the premises. In pursuance of such judgment, the sum of $33,206.07, the surplus of such sale, was paid to the chamberlain of the city of New York, and is now in his possession under such judgment. The moving party, the respondent here, claims to have been one of the owners of the fee of the premises sold, and claims to be entitled to a portion of such surplus money. The court below ordered a reference to ascertain and report the amount due to the said Bella B. Mayer, or to any other person, which is a lien upon such surplus money, and to ascertain the priorities of the several liens thereon. We think this order should be affirmed. The money was in court, being the proceeds of certain real estate which had been sold, under a judgment of the court, to satisfy certain liens thereon. The court having the possession and control of the money, which stood in place of the property sold, anyone having a lien upon or being entitled to a portion of such moneys was entitled to apply to the court to have the amount of the respective interests of the parties ascertained, and the money paid to those entitled to it. No reason appears why the court could not exercise such jurisdiction at the foot of the judgment, and it is quite apparent that such a method would be much more economical and expeditious than by the more cumbersome method of an action. The appellant’s rights can be as effectually secured before the referee as by the action that he has commenced for the distribution of this fund. It is not necessary to determine whether rule 64 of [he-general, rules of practice applies to such a proceeding. Assuming that it does it is not claimed but that the provisions of that rule have been observed in this proceeding. The fact that a motion made by one of the other parties to the action, who claimed an interest in the fund, was denied, is not controlling upon the respondent. That application seems to have been denied because the moving party had been served with a summons in an action brought to determine the interests of the respective parties in this fund; but as the summons in that action had not been served upon the respondent here, and there was no way by which this respondent could get in to that action, she certainly was not bound to wait imtil the plaintiff there should see fit to serve her, and so give her an opportunity to assert her rights.

The order appealed from is therefore affirmed, with $10 costs and disbursements to be paid by the appellant to the respondent.


author: PEE CURIAM.

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    Frank T. Morrill v. Demetrius Kazis.
    (Supreme Court, Appellate Division, First Department,
    July 31, 1896.)
    Pleadikg—Bill of particulars. ,
    In an action for breach of a contract by which defendant agreed to purchase cigarettes from plaintiff, including any which plaintiff had sold and which might be returned to him by the purchaser prior to a certain date, defendant does not, in order to answer, require a bill of particulars stating-the name and address of each purchaser returning any cigarettes, the date-of their purchase and return, and the number of each brand returned.
    Appeal from special term, New York county.
    Action by Frank T. Morrill against Demetrius Kazis on a contract for the sale of a cigarette business. From an order requiring plaintiff to serve a bill of particulars, plaintiff appeals.
    William R. Bronk, for appellant.
    Eustis, Foster & Coleman, for respondent.
   PEE CURIAM.

¡The only ground upon which the bill of particulars ivas applied for was that it was necessary to enabl e the defendant to answer. It was not necessary for that purpose. The action is for a breach of a contract to take and pay for certain cigarettes sold by the plaintiff to the defendant and one Timayenis under a written contract. The plaintiff alleges the making of the contract in writing, and that under it the plaintiff sold to the defendant, and the defendant purchased and promised to pay for, all the-right, title, and interest of the plaintiff in and to the business conducted under the name of Egyptian Harem Cigarette Company; the sale including all cigarettes theretofore manufactured, and all tin and paper boxes and cigarette paper then in stock, at the prices and for the sums in the agreement mentioned. The complaint further alleges that the plaintiff kept and fully performed all the conditions of the contract, and prior to the 31st of March, 1896, the plaintiff delivered to the defendant, and the defendant received and paid for, under the said agreement, 125,000 of the cigarettes manufactured and on hand in said business at th? time of the making of said contract, and that the plaintiff was ready and willing at all times to deliver all of said cigarettes, prior to December 31,1895, but that the defendant was not ready or willing to receive or pay for the same.' It is further alleged in the complaint that the defendant agreed to purchase ayd take from the plaintiff any and all of the cigarettes, of the brands specified in said contract, which might be returned to the plaintiff prior to the 31st day of March, 1896, by any dealer or other person who might have purchased the same prior to August 15th, 1895, and to pay for the same at the respective rates per 1,000 specified in said contract. It is further alleged that on the 1st of April, 1896, the plaintiff had in his possession of the cigarettes which the defendant agreed to purchase, a certain amount, partly consisting of those manufactured and on hand on August 15, 1895, and partly of cigarettes which had been returned prior to March, 1896, by dealers or persons who had purchased the same prior to the the 15th day of August. The amounts and brands of these cigarettes are stated. They aggregate 61,550, amounting in the value to $551.27. The breach of the contract to purchase is then alleged, and that the defendant refused and neglected to pay for the balance of cirgarettes then on hand, and they also refused to pay for the cigarettes returned; and a money judgment for damages is demanded. The order appealed required the plaintiff to furnish a bill of particulars stating, as to the cigarettes sued for, the number of each brand manufactured and on hand August 15, 1895, and the name and address of the purchaser returning any cigarettes sued for, the date of their purchase and return, and the number of each brand returned by said several purchasers severally. This order ivas made upon an affidavit in which the moving party stated that he had no knowledge or information or means of ascertaining the items included in plaintiff’s claims, and can not intelligently answer until informed who made such alleged returns, and can investigate the justice of the claims based thereon by plaintiff.

It seems to be obvious that the only purpose of making an application of this kind was to enable the defendant to get from the plaintiff the evidence intended to be used on the trial. That such is not the office of a bill of particulars, it is unnecessary to argue. In Hayes v. Lodging House, 89 Hun, 28, 69 St. Rep. 109: Bender v. Bender, 88 Hun, 449, 68 St. Rep. 787: and in Newell v. Butler, 38 Hun, 104, —that practice was condemned. It was not necessary, in any way, to enable the defendant to answer the complaint, that he should have the information sought to be obtained. It was entirely competent for the defendant to answer, denying upon information and belief either of the matters upon which the plaintiff’s cause of action was based.- The pur-1 pose of an answer is to raise an issue; and to say that the defendant, in order to raise an issue, must be informed by the plaintiff of all the evidence that he has to support each and every particular item of what apparently would constitute a long account, is an absurdity. The Code of Civil Procedure expressly provides the form in which an answer may be made, where the party does not possess the information to enable him positively to contradict an averment of the complaint.

The order appealed from should be reversed, with $10 costs and disbursements and motion denied, with $10 costs.


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    John Sugden et al. v. Magnolia Metal Co.
    (Supreme Court, Appellate Division, First Department,
    July 31, 1896.)
    Contracts—Recession by parties—Election.
    Plaintiffs entered into a contract with defendant for the purchase of goods, and the exclusive right to sell in certain countries. The contract provided that, if plaintiffs should break the agreement in any particular, all their rights thereunder should cease. After plaintiffs had made pay- ■ ments under the contract, including part of the price of goods not deiiv- , ered, disputes arose, and plaintiffs refused to receive any more goods, but afterwards offered to receive ail the goods, and to pay the price thereof, and damages for the delay; hut defendant insisted that plaintiffs, by their .breach, had terminated the contract, but did not offer to return the ad vane payments made by plaintiffs. Plaintiffs assigned their claim for such advance payments, and the assignee sued defendant therefou Held, that plaintiffs, by such assignment, were precluded from asserting that the , contract was continued in force by defendant’s retention of such money.
    Appeal from special term, New York comity.
    Action by John Sugden and others against the Magonlia Metal Company. From an order denying a motion to continue a preliminary injunction restraining the defendant from intefering with their business, plaintiffs appeal. Affirmed.
    On February 16, 1894, the plaintiffs, as trustees of a corporation to be formed, to be called the “Magnolia Anti-Friction Metal Company, of Gréat Britain, Limited” (styled the "English Company”), and the defendant (styled the American Company”), entered into a contract whereby the former agreed to purchase of the latter 3,000,000 pounds of magnolia metal, at ten cents a pound. Part of this amount, the contract recites, has been delivered and paid for. The unordered balance of 1,000 tons was to be delivered in 12 monthly installments, of not less than 92 tons each, com mencing with the first of the ensuing March. The plaintiffs, however, were given the option of taking, instead, net less than 46 tons a month, in which case they were to pay, at or before the end of each month, four cents a pound upon the balance of metal necessary to make the purchase for that, month 92 tons. If, on March 1, 1890, the plaintiffs should not have taken the whole 3,000,000 pounds, they were to take the balance in such quantities as they might choose, not less than one-fourth each quarter year from March 1, 1895. During the continuance of this agreement, the English Company obtained the sole right to sell the magnolia metal in Fmgland and all its dependencies except Canada, and many other countries specified, upon the continent and elsewhere. As soon as the English Company should have ordered and paid for the full 3,000,000 pounds of metal and sent the American Company written notice that it would not avail itself of an option given it to require ,the American Company to take back part of the metal, the English Company became entitled to all the business which then existed, or might thereafter be developed by it in the countries where it was licensed to sell; and the American Company contracted to execute all necessary instruments of transfer. If, on the other hand, the English Company should break the agreement in any particular, the American Company became entitled" to take possession of its business, and the English Company agreed to relinquish it. This agreement was to be substituted for a prior agreement made March 25, 1891, upon the organization of the English Company; and upon its incorporation, the prior agreement was to be canceled. The company was never organized, but subsequent correspondence between the parties gave plaintiffs, if they fulfilled the terms of the agreement the same rights the company would have had. The plaintiffs had not ordered all of the metal on March, 1, 1895; and on September 1, 1895, the second quarterly shipment day thereafter, a shipment of 126 tons was due. On August 24th the plaintiffs had written specifying where the metal was to be sent. Defendant was about to make this shipment ■ when the first dispute between it and the plaintiffs arose. A suit brought by one Hoveler against Edward C. Miller, one of the defendant’s officers,' to annul an English patent upon the magnolia metal, was pending in the English courts. Defendant had agreed to defend this suit, as part of the agreement, with the plaintiffs. It had retained English counsel, and a disagreement had arisen between them respecting the payment of a bill. At this time the solicitors threatened to withdraw from the action, whereupon, on September 12, 1895, plaintiffs cabled and wrote the defendant, refusing to accept the draft for the shipment which' was about to be made, or to have further dealings with it, until satisfied that the solicitors would be paid and the defense of the suit continued. Defendant replied that it intended to fulfil all the conditions of its contract; that the plaintiffs’ refusal to accept the draft was a breach on their part; and that it had stored the metal for the plaintiffs’ account, and drawn for the amount. A long correspondence followed, during which the plaintiffs steadily adhered to their position, and claimed damages on account of the defendant’s failure to ship goods, at no time consented to pay the contract price for the metal without conditions or deductions. The matter was subsequently placed in the hands of Mr. Constant, an American attorney, who, on February 28, 1896, served an unconditional offer to receive and pay for the whole balance of metal under the contract of February 16, 1894, and agreed to pay the damage caused by plaintiff’s delay. The defendant, however, asserted that the plaintiff's had, by their breach terminated the contract. At the time of the disagreement, in September, 1890, the defendant had in its possession advance payments upon metal not ordered by the plaintiffs during the year from March 1, 1894, to March 1, 1895, amounting to about $36,000. This sum it has not offered to return. Prior to the date of their offer to receive the unshipped metal, the plaintiffs assigned their claim to this sum to one Lawlor, who brought suit thereupon in the supreme court, New York county, and obtained an attachment against the defendant’s property.
    L. A. Gould, for appellants.
    Samuel G. Metcalf, for respondent.
   PER CURIAM.

It appears by the moving papers that the defendant has taken the position of business rival of the IDlaintiffs in the sale of magnolia metal in territory reserved to the latter by the contract of February 16, 1894, and is striving to divert their business by the issuance of circulars,, employment of agents, etc. These acts the court below has declined to interfere with. In order to determine whether the decision is correct, it is necessary to decide whether the plaintiffs have lost the exclusive right to the business built up by themselves by noncompliance with their contract. That the plaintiffs did, in fact, break their contract by a wrongful refusal to receive and pay for the metal they had agreed to purchase, is now conceded. It is said, however, that the defendant did not elect to rescind the contract when the breach occurred, but, on the contrary, chose to keep it alive. That seems to be true. The action of the ■defendant in retaining the $36,000 of advances, which it had received under the contract, but for which it had given no ■equivalent, is not consistent with an intention to disaffirm. If the. defendant did not intend to furnish the rest of the metal, it had no right to keep this sum, which was part of the purchase price thereof. It is probable, therefore, that the plaintiffs would have been, but for their own action, in a position to claim their rights under the contract—at least, their right to the business built up by them—as long as the defendant retained the advance payments. But they destroyed this right Avlien they assigned to Latvlor their claim to the $36,000. That Avas a binding election to regard the contract as rescind. This money belonged to the plaintiff only in the eArent of the contract being AA’holly terminated, .so that nothing more Avas to be done under it. If the contract Avas to be carried out further, and the remaining shipments made, then the money did not belong to the plaintiffs, and the defendant Avas entitled to its possession eA'en before the rest of the metal should be shipped. The plaintiffs Avere to become entitled to the English business only by paying for the Avhole 3,000,000 pounds of metal. So far from doing this, they have sought to recover, or at least have transferred to another all their right to recover, part of the very money Avhich the contract provided as a consideration for the acquisition of that business. It is plain that they thereby made a binding election, which deprived them of their right to the same.

It is claimed that the plaintiffs offered unconditionally to peiform the contract before February 28, 1896, and at a date prior, so far as the record sIioaa’S, to the assignment to Laivlor. In fact, however, there is no prior offer Avhich can be regarded as an unconditional tender of performance. But, if it were otherwise, the LaAvlor suit operated as a withdinwal of any such offer, and pledged the plaintiffs to a different line of conduct, denning for them, as it did, a different attitude.

The order should be affirmed with costs.


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    Matter of Peekamoose Fishing Club.
    (Supreme Court, -Appellate Division, First Department,
    July 31, 1896.)
    Vacating order for irregularty—Laches.
    A motion to vacate an order as irregular will be denied on the ground of laches, where it was made eight months after the order was entered, and after it had been affirmed on appeal.
    Appeal from special term, New York county.
    Application by one of the two trustees of the Peekamoose Fishing Club for its dissolution. From an order denying a motion to vacate an order dissolving the corporation and from an order directing the receiver to sell the property» Anthony W. Dimock and others appeal.
    G. H. Hart and B. C. Chetwood, for appellants.
    D. McClure and F. Bien, for respondent.
   PER CURIAM.

The appellants have been guilty of gross laches in the making of the present motion. The orders which are complained of as irregular were made in October of last year and the present motion was made in June of this year. Meanwhile the appellants have wasted their time in fruitless appeals from the orders which they now seek to-set aside as irregular, and in applications to open the default which resulted in the making of the orders in question. They spent further time in appeals from the order denying their application to open this default. And now, when their incorrect practice has been brought home to them by repeated adjudications, they go back to where they were in October-of last year, ignore the subsequent action, and ask directly to vacate the orders complained of as irregular. This motion to so vacate was properly denied, because of their laches and because the steps which they took for relief against these orders were inconsistent rvith the present claim of irregularity. It matters not that the irregularity has been pressed upon the court in various phases of these other applications. We must look to the precise nature of these other applications, as formulated by the notices of motion, or orders to show cause,—not to the arguuments addressed to the court thereupon—to ascertain whether they were inconsistent with the present application. Clearly, an application to open a default, appealing to the discretion and favor of the court, proceeds upon an entirely different theory from an application to set aside the default, as matter of right, because of the alleged and specified irregularity. Then, too, the laches is not excused because it occurred during a period which was utilized in the making of motions and taking of appeals which were futile in themselves, and which proceeded upon a recognition of regularity, and the desire to be relieved as a matter of favor.

We think, hoAvever, that the present motion Avas properly denied upon the merits. There Avas in fact no irregularity. The fallacy of the appellants’ contention, throughout, consists in the assumption that Whiton’s orb,"nal application AA'as a mere interlocutory motion in the proceeding, and that the only relief which the petitioner could have thereon, in case of Whiton’s default, was a dismissal of such motion. The true vieAV of Whiton’s application is that it was an applicat tion for a final order in this special proceeding. Of course, the final order that he desired and demanded was a final order dismissing the proceeding. But it was none the less an application for a final hearing of the entire proceeding. When that application was brought on, all parties in interest were before the court, and the hearing was regularly adjourned to a later day. At this point the court took jurisdiction of the application, and acted upon it preliminarily. All parties Avere heard upon the application for the postponement. Thus, when the matter came up upon the adjourned day, the proceeding was regularly before the court, as a court of equity, for final hearing and disposition. It was there for final judgment; that is, for a final order,—for a final order of dismissal, or a final order of dissolution, as the-court should determine. After one of the parties had moved for a final order r.:ch as he desired, and after an adjournment of that application in the presence of, and after hearing, all the parties to the special proceeding, it was not necessary for any of the parties to serve a notice of motion ■ for such final order of a different character as he desired. , The adjournment being thus had for the purpose of a final ; hearing, the AArhole matter was before the court, and came-up, as unfinished business, upon the adjourned day. Thereafter the court had full power, without further notice, to proceed to grant such final order, either way, as it deemed just. By the adjournment the parties agreed, in substance, to-proceed to a final hearing of the special proceeding upon the adjourned day; and whatever judgment was then pronounced—whether a judgment of dismissal or a judgment, of dissolution—was at least regular.

That disposes of this appeal. There is also an appeal from an order directing the receiver to sell the property. This order AA’as clearly proper. It is, indeed, quite time that this property should be sold, and the corporation wound up. There has already been too much vexatious delay in the proceeding.

Both orders should therefore be affirmed, with $10 costs of each appeal, and disbursements.


text:
    Maria L. Winterson v. Harriet D. T. Wilson et al.

    (Supreme Court, Appellate Division, First Department,
    July 31, 1896.)
    Mortgages—Discharge.
    A mortgage cannot be discharged of record by order, unless all the parties interested therein are made parties, so that the rights of all can be determined, and the lien of each transferred to the money which is substituted for the property.
    Appeal from special term, New York county.
    Action by Maria L. W interson against Harriet'D. T. Wilson and others, to determine the amount to be paid on a mortgage of $1,000, and to remove the same as a cloud on title. Prom an order directing the register to discharge the mortgage of record, defendant Wilson appeals.
    William A. Abbott, for appellant.
    E. G. Bullard, for respondent.
   PER CURIAM.

—There is no question that the court has jurisdiction in an action brought for the relief which is sought here. Whether it would be proper, in such case, under any circumstances, to grant the relief which was given by this order, before final judgment in the action, it is not necessary to determine. Certainly, such relief •can not be granted by order, unless the parties interested in the mortgage are made parties to the action, so that the rights of everybody can be determined, and the lien of every party to the action be transferred to the money which is substituted for the property upon which the mortgage was given. That was not the case here. Mrs. Bullard, whose right to a certain portion of this property is alleged in the complaint is not made a party to this action; and for that reason, without discussing any other reasons, the mortgage should not have been canceled, and it was erroneous to grant the order, which must be reversed, with $10 costs and disbursements.


text:
    William M. Colgin v. United States Mercantile Reporting Company.
    (Supreme Court, Appellate Division, First Department,
    July 31, 1896.)
    Pleading—Amendment—Separate causes op action.
    A complaint for libel, which recites as a single cause of action two separate publications concerning plaintiff, may be amended so as to state separately each publication as a separate cause of action.
    Appeal from special term, New York county.
    Action by William M. Colgin against the United Slates Mercantile Reporting Company for libel. From an order striking out the first cause of action from the amended complaint, plaintiff appeals
    The original complaint is as follows;
    The plaintiff, by his attorney, S. L. Samuels, for his complaint herein alleges: First. Upon information and belief, that at all the times hereinafter mentioned the defendant was and is a corporation created and organized under the laws of the state of New York. Second. That the plaintiff now is and hitherto has been, of good name, fame, and reputation, and at the time of making and publishing the false, scandalous, and malicious libel hereinafter mentioned of and concerning plaintiff, he was engaged in the business of buying and selling dry goods, as a merchant, in the town of Cfaiesville, in the state of Texas. Third. That the defendant now is, and for a long time past has been, engaged in the business of making reports, in writing and otherwise concerning the solvency, credit, and reputation of merchants and others, for the benefit of its subscribers, of whom it has and has had, .large numbers throughout the United States. Fourth. That the defendant, contriving and maliciously intending to draw and bring the plaintiff into contempt and ignominy, and to cause it to be believed that plaintiff was unworthy of credit as a merchant in his said business, did, at the city of New York, and at various other places throughout the United States, and on or about the 25th day of August, 1894, make, devise, compose, write, and publish, and cause to be made, composed, written, and published, a certain false, scandalous, and malicious libel of and concerning the plaintiff in words following; that is to say: “Colgin & Powell, W. M. Powell, W. M. Colgin,. has Been doing business here (by diere* meaning said town of G-atesville, Texas) for several years with one or two failures to his record, and he appears to have lost the confidence of the trade. Powell is a relative, said to be a saloon keeper from Wichita Falls, with some little means, estimated at $2,500; and he was admitted in January, 1893, in hope of strengthening the firm.* credit. Up to writing, the change has not made any noticeable impression on the trade in Ft. Worth, where the accoun l is either handled on a cash basis, or sharp thirty (30) days; and, in short, their success seems to be regarded out of the question, as long as Colgin remains at the head of affairs. The Martin-Brown Co. and Butts Bros., of Fort Worth, know all about them; and, so far as Colgin is concerned, he is not entitled to the slightest consideration in the way of credit. W. M. Colgin—dry goods, etc.—opened here (by ‘here’ meaning said town of G-atesville) in 1885 from Calvert, Texas; ami he had a partner for a time, and until August, 1887, as Colgin & Co. Compromised -with his creditors in the fall of 1891, when he left for Weatherford, Texas; and he returned here in February, 1894. In January, 1893, he admitted a relative named Powell, a saloon keeper at Wichita Falls, Texas, with the object of improving his credit, but his little scheme did not work. The business also fell off very materially at Weatherford, and in the branch store at Taylor, Texas, his sharp methods being directly opposed to confidence; and it is very much doubted if he will do any better at this point, Ms failure having lost him the confidence of the trade. The stock runs to ten or twelve thousand dollars. He is said to do a cash business, and appears to pay current bills without complaint. Heretofore lie has bought largely at Ft. Worth, Texas, the account being handled either for cash, or sharp thirty; and both the man and his methods are well known in that city to the Martin-Brown Co. and Butts Bros.” Fifth. That, by reason of the premises, plaintiff has been greatly damaged in Ms good name, fame and reputation, and in his said business and has been refused credit by merchants, to his damage twenty-five thousand dollars. Therefore plaintiff demands judgment against defendant in the sum of twenty-five thousand dollars, besides the costs of this action.
    The amended complaint is as follows:
    The plaintiff, for his amended complaint herein, alleges for a first cause of action: First. Upon information and belief, that at all the times hereinafter mentioned the defendant was and is a corporation created and organised under the laws of the state of New York. Second, That the plaintiff now is, and hitherto has been, of good name, fame, and reputation, and at and before the time of making and publishing the false, scandalous, and malicious libel hereinafter-mentioned of and concerning plaintiff, he was a member of the mercantile firm of Colgin & Powell, which was engaged in the business of buying and selling dry goods and other wares, as merchants, in the town of Weatherford, in the state of Texas. Third. That the defendant, at the times hereinafter mentioned, was engaged in the business of making reports in Avriting, printing, and otherwise, concerning the solvency, credit, history, and reputation of merchants and others, Avhich it sent to its subscribers, of viiom it then had large numbers throughout the United States, and AArho paid it a pecuniary consideration for such sendees. Fourth. That the report mentioned in paragraph fifth of this first cause of action Avas printed, or caused to be printed, by defendant, and Avas sent, or caused to be' sent, by it to its said subscribers, at or about the time mentioned in said paragraph. Fifth. That the defendant, contriving and maliciously intending to draw and bring the plaintiff into contempt and ignominy, and to cause it to be believed that plaintiff was unworthy of credit as a merchant in his said business did, at the city of Nbav York, and at various other places throughout the United States, and on or about the 30th day of June, 1893, make, devise, compose, write, print, and publisher cause to be made, composed, written, printed, or published, a certain false, scandalous, and malicious libel of and concerning the plaintiff, in words folloAA’ing; that is to say: “Weatherford, Texas, Parker County, June, 1893. Col-gin & Powell. William 31. & H., dry goods, etc. (meaning William 31. Colgin, the plaintiff, and H. PoAvell, the persons composing said firm of Colgin and PoAvell, and that they were engaged in the business of buying and selling dry goods, etc.), Colgin (meaning plaintiff) has been doing business here (by ‘here’ meaning said town of Weatherford, Texas), for several years, with one or txvo failures to his record and he appears to have lost the confidence of the trade. PoAArell, is a relative, said to be a saloon keeper, from Wichita Falls, with some little means, estimated at $2,500; and he was admitted in January, 1893, in the hope of strengthening the firm’s credit. Up to this Avriting the change has not made, any noticable impression on the trade in Fort Worth * * * where the account is either handled on a cash basis or sharp 30 (meaning that Colgin & Powell and Colgin alone had no credit at Fort Worth, Texas, where they bought goods, and could only buy goods there for cash, or on credit not longer than 30 days), and in short their success seems to be regarded out of the question so long as Colgin remains at the head of affairs.” Sixth. That, by the two stars contained in the next preceding paragraph, defendant meant and so published that it had additional items of information concerning Col-gin & Powell, which had reference to Ft. Worth, Texas, and which Avere not intended to subvert what Avas already said by defendant concerning Colgin & PoAvell, and which it would communiccate to its subscribers personally or by. letter. That said additional item so referred to was as follows: “ ® * * The Martin-Brown Co. and Butts Bros, know all about them and, so far as Colgin is concerned, he is not entitled to the slightest consideration in the way of credit (meaning that the Martin-Brown Co. and Butts Bros., who were merchants doing business at Fort Worth, Texas, and were wholesale houses of great prominence and influence, would confi m what was stated in the report specified in paragi aph fifth, and in the report specified in paragraph sixth).” And plaintiffs alleges, on information and belief,r that defendant, on or about June .30, 1893, for the purpose and object specified in paragraph fifth of this complaint, maliciously published the said additional item, the same being false and libelous, of and concerning plaintiff. Seventh. That, by reason of the premises, plaintiff has been greatly damaged in his good name, fame and reputation, and in his credit as a merchant, and in his said business, and has been refused credit by merchants, all to his damage in the sum of tivelve thousand five hundred ($12,500) dollars.
    For a second cause of action: First. Plaintiff repeats, as though the same were here stated in full, the allegations contained in paragraphs first and third of the first cause of action. Second. That plaintiff now is, and hitherto lias been of good name, fame and reputation, and at and before the time of making and publishing the false, scandalous, and malicious libel hereinafter mentioned of and concerning plaintiff, he was engaged in the business of buying and selling dry goods and other wares, as a merchant, in the town of Gatesville, in the state of Texas. Third. That the report mentioned in paragraph fourth of this second cause of action was printed or caused to be printed, by defendant, and was sent, or caused to be sent, by it to its said subscribers, on or about the time mentioned in said paragraph. Fourth. That the defendant, contriving and maliciously intending to draw and bring the plaintiff into contempt and ignominy, and to cause it to be believed that plaintiff was unworthy of credit as a merchant in his said business did, at the city of Mew York, and at various other places throughout the United States, and on or about the 31st day of May, 1894, make, devise, compose, write, print, and publish, or cause to be made, composed, written, printed, and published, a certain false, scandalous, and malicious libel of and concerning the plaintiff, in words following; that is to say “Gatesville, Texas. May, 1894. Wm. M. Colgin, dry goods, etc., opened here (meaning that plaintiff had opened a business in the selling of dry goods and other wares and merchandise at said town of Gatesville, Texas) in 1885, from Calvert, Texas; and he had a partner for a time, and until August; 1887, as Colgin & Co. Compromised with his creditors in the fall of 1891, when he left for Weatherford, Texas, and he returned here (by ‘here’ meaning Gatesville, Texas) in February, 1891. In January,, 1893, he admitted a relative named Powell, a saloon keeper at Weatherford, Texas, with the object of improving his credit, but his little scheme did not work. The business also fell off' very materially at Weatherford, and in the branch store at Taylor, Texas, his sharp methods being directly opposed to confidence; and it is very much doubted if he will do any better at this point, his failure having lost him the confidence of the trade. The stock runs $10,000 to $12,000. He is-said to do a cash business, and appears to pay current bills without complaint. Heretofore he has bought largely at Ft. Worth, Texas, the account being usually handled either for cash, or sharp 30 (meaning that his usual transactions at Ft. Worth he could obtain no credit, and was obliged to purchase either for cash, or on a credit not longer than thirty days); and both the man and his methods (meaning the sharp methods which were directly opposed to confidence above mentioned) are well known in that city to the Martin-Brown Go., and to Butts Bros, (meaning that the Martin-Brown Co. and Butts Bros., who were merchants of high standing, influence and prominence, doing business at Ft. Worth, Texas, would give information confirming the statements of this report.)” Fifth. That by reason of the premises, plaintiff has been greatly damaged in his good name, fame, and reputation, and in his said business, and in his credit as a merchant, and has been refused credit by merchants, to his damage twelve thousand five hundred ($12,500) dollars. Wherefore plaintiff demands judgment against defendant for the sum of twenty-five thousand ($25,000) dollars, besides the costs of this action,
    S. L. Samuels, for appellant,
    John B. Talmage, for respondent,
   PER CURIAM.

We think the order below was entirely unauthorized. The plaintiff, by his original complaint, alleged the publication of the statement referred to in the first cause of action, but alleged that it was made in connection with another statement which, in the amended complaint, constitutes a second cause of action. The amendment was merely to separate the two publications as having been made at two separate times, instead of both at one time, as alleged in the original complaint. There was nothing in this amendment which stated a new and independent cause of action. It was simply separating in the amended complaint two causes of action that had been improperly joined. If the defendant published of and concerning the plaintiff the statement contained in the first cause of action, the plaintiff has the right to sue to recover the damages sustained by such publication; and the separating of the two causes of action alleged in the original complaint as one cause of action does not now prevent the defendant from pleading any defense to either of the causes of action that he may have. The question as to the right to serve the amended pleading is not before us. The amended complaint was received without objection, and no motion was made to set it aside as improperly served.


author: HARDIN, P. J.

text:
    Ferdinand H. Duckwitz v. Adaline H. Fuller.
    (Supreme Court, Appellate Division, Fourth Department,
    June 17, 1896.)
    'Contracts—Interpretation.
    Defendant, after contracting with one B. for the purchase of land, entered into a contract with plaintiff referring to the contract with B., and providing that, on a resale of the land, plaintiff should have a certain portion of the amount realized in excess of the purchase price, and that in case the land should not be sold before a specified day, and defendant should take a deed from B., then defendant should give plaintiff a mortgage on the land for a certain sum. Held, that the contract between plaintiff and defendant did not require defendant to take a deed from B., and therefore the clause providing that defendant should give plaintiff a mortgage conferred no rights on plaintiff where defendant did not take a deed from B.
    Appeal from circuit court, Niagara county.
    Action by Ferdinand H, Duckwitz against Adaline H. Fuller for breach of contract. There was a. judgment in favor of defendant, and plaintiff appeals.
    The cause was tried before the court without a jury. “No part of the evidence is inserted in the return, the decision being based on the pleadings only.” The court found as conclusion of law as follows: “That the motion of the defendant to dismiss the complaint of the plaintiff herein upon the pleadings herein should be granted, and that judgment should be entered herein in favor of the defendant and against the plaintiff, dismissing the complaint of the plaintiff herein, upon the pleadings with costs,” Thereafter judgment was entered, from which the plaintiffs appeal. No exception appears in the appeal book, taken upon the trial, or to the decision made by the trial court.
    Thayer & Jackson, for appellant.
    Root, Orton & Baldwin, for respondent.
   HARDIN, P. J.

Inasmuch as no exception appears in the appeal book, the appellant is not in a situation to review any-ruling' made during the trial, or the decision made by the trial court. By the plaintiff’s complaint it appears that one Fredericka Beitz on the. 19th of May, 1892, entered into a •contract with the defendant, Fuller, whereby she; in consideration of $500, and of certain other considerations mentioned in the contract, agreed to sell to the defendant, Fuller, a tract Of land in the town of Wheatfield containing 50 acres of land, be the same more or less, which was de-, scribed (reserving out of the parcel described the lands owned by the New York Central & Hudson River Railroad Company), at the sum of $170 per acre, aggregating $8,500. A survey was to be made, and the amount of land was to be computed, and the payment therefor was to be made, viz., $500 down, $2,500 on or before the 1st of October, 1892, and the balance by executing a bond and mortgage bearing date the 1st of October, 1892, payable five years from date, with interest. The contract further provided that the second party was to deliver to first party, with the bond, a mortgage with the same conditions of the bond, with—

“A clause requiring the party of the first part, upon request of the party of the second part, * * ® to release from the lien of said mortgage any part or portion of the within-described premises (excepting the premises fronting-on Sawyers Creek road, upon which the buildings stand) upon the payment to the said parties of the first part of the snm of, and the rate of, $300 per acre.”

The contract further provided that Beitz, on receiving $2,500 on or before the 1st of October, 1892, should execute and deliver to the party of the second part a good and sufficient warranty deed of conveyance, executed by herself and her husband, Wilhelm Beitz. The Second party had the privilege of paying the $2,500 prior to October 1, 1892, and in that event the first parties were to deliver a deed, and receive the bond and mortgage payable five years from October, 1, 1892. On the 19th day of May, 1892 (upon the same' day that the defendant entered into the contract with Beitz), she entered into a contract with the plaintiff, reciting and referring to the contract made with Beitz and also reciting, viz.:

“It is understood between the parties hereto that the said premises are to be disposed of to the best advantage, and that the said Ferdinand H. Duckwitz is to have from the excess realized therefor, above said purchase price of $170 per acre, the next thirty (30) dollars per acre, and that, if said premises shall realize more than two hundred seventy-five (275) dollars per acre, he shall also have one-half the excess realized above two hundred seventy-five (275) dollars per acre for the consideration hereinafter recited.”

The contract further provided that in consideration of one dollar—

“And the execution and delivery of the said land contract by the said Fredericka Beitz to said Fuller, a copy of which is hereto annexed, and made a part of this agreement, and in consideration of the consent of said Duckwitz to the-said contract, and to the said conveyance to the said Fuller, and in consideration of the release by said Duckwitz of all claim of interest in and to the premises in said annexed agreement described, excepting under this agreement, it is mutually agreed that the said premises shall be sold .by the ■said Fuller for the best price and terms that can be obtained therefor, and that after such payment for said land ¡as by said contract with Beitz provided, including reimbursement to said Fuller, from the proceeds thereof, of the sum of three thousand dollars ($3,000) required to be paid on said Beitz contract prior to the delivery of the deed, that from the excess of cash received over such payment said Fuller shall pay to the said Duckwitz a one-third part of all such excess up to the sum of, and until said Duckwitz shall have received the sum of, fifteen hundred dollars ($1,500); that, in addition thereto, if the said premises shall realize a sum greater than two hundred seventy-five dollars ($275) per acre, said Fuller shall pay to the said Duckwitz; one-half of all the excess received over and above said $275 per acre, to Avit, one-half of all such excess in cash and securities, so that the same shall be equally dÍAÚded, share and share alike, and each receÍAre a like payment of the cash or securities received, as the case may be.”

It AATas further provided that that mortgage should be conditioned—

“That said Fuller shall pay to said Duckwitz the one-half of all moneys and securities, or either, in excess óf $275 per acre, that shall be received on the sale of the premises when sold by said Fuller.”

Evidently the parties to this action, Avhen they entered into the contract from which the quotations have just been made, contemplated an appreciation of the property, and that a rising market Avould afford an opportunity for carrying out the speculation they Avere contemplating. The words in the contract, “that in case the sale of the said premises shall not be made as hereby contemplated prior to October first, 1892, and said Fuller shall take a deed from said Beitz, and give back her purchase-money mortgage as by the said Beitz contract provided,” evidently Avere used for the purpose of qualifying, and creating a condition precedent to, the agreement on the part of Fuller to give to Duckwitz, the plaintiff, a second mortgage to secure one-half of the contemplated profits of $3,000, to wit, the sum of $1,500. The agreement to give the $1,500 mortgage was conditioned that Fuller should take a deed from Beitz, make so by the use of the words, “in case the sale of the said premises shall not be made * * ® prior to October first, 1892, and said Fuller shall then take a deed from said Beitz.” It is not alleged, and it does not appear from anything found in the appeal book, the Fuller took a deed prior or subsequent to the 1st of October, 1892. By the complaint it appears that the defendant did not sell the land prior to the 1st of October, 1892, and that she has never received a deed from Beitz. Her obligation, therefore, to give a mortgage to the plaintiff, has never matured, according to the tenor of the stipulation with the plaintiff. It is not made apparent that the speculative option given to the plaintiff has matured, or that the condition mentioned in the contract of the defendant with the plaintiff was broken before the commencement of this action. Inasmuch as the two contracts apparently were made the same day, and relate to the same subject-matter, it is proper to refer both of them in giving construction to either of them. It is to be borne in mind that there was • no absolute stipulation on the part of the defendant to sell the property at $290 per acre, nor is there anything in the contract to deprive the defendant of a discretion in respect to the purchase of the land. Nothing is found in the contract between the defendant and the platiff obligating the defendant absolutely to fulfill her contract with Beitz. The construction and contention of the plaintiff ought not to prevail. The conclusion reached at the trial term seems to be more reasonable. The foregoing suggestions lead to an affirmance.

Judgment affirmed, with costs.

FOLLETT and ADAMS, JJ., concur. WARD, J. not voting.


text:
    Catherine Finan v. John O’Dowd.
    (Supreme Court, General Term, Second Department,
    June, 1896.)
    Limitations of actions—Commencement of action—Plubies summons. Under Code Civ. Proc., § 2883, providing that, where it appears by the return of the constable to whom a summons was issued for service that it was not served, a second summons may be issued, and, on a like retura , thereof, a third summons may be issued, and that the second or third summons, as the case may be, relates back to the time when the first summons was issued, a third summons does not relate back unless the first and second were not served on defendant.
    Appeal from Queens county court.
    Action by Catherine Finan against John O’Dowd. A judgment in favor of plaintiff, rendered by a justice of the peace was reversed by the county court, and plaintiff appeals.
    George Brush, for appellant.
    Matthew J. Smith, for respondent.
   PER CURIAM.

Judgment affirmed, with costs, on the opinion of the county judge.