author: Barrett, J.

text:
    The People ex rel. Edwin M. Worth, App’lt, v. Hugh J. Grant, Mayor, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Municipal cobpobations—Amusements—License.
    The provision of the charter of the city of New York authorizing and empowering the mayor to grant licenses for public exhibitions is not mandatory, but the mayor is vested with discretionary power, and in a proper case may refuse to grant a license, although the statutory fee is tendered.
    Appeal from an order denying the relator’s application for a peremptory mandamus to compel the respondent to grant to him, on receiving the sum of $500, a license to give vocal and instrumental concerts, and to give museum exhibitions without stage scenery or apparatus, on the premises located at 492, 496 and 498 Sixth avenue, in the city of New York, and known as “ Worth’s Museum.”

      A. J. Dittenhoefer and David Gerber, for app’lt; Charles Blandy and William H. Glarh, for resp’t
   Barrett, J.

The above statement sufficiently indicates the character of this appeal. The relator contends that the mayor is not vested with discretionary power in the premises,' and that upon tender of the fee specified in the statute (Consolidation Act, § 1999), he is absolutely entitled to the license asked. The respondent, on the other hand, contends that the question whether the license shall issue rests in his sound discretion. Whether a duty imposed upon a public officer is imperative or discretionary is always a question of legislative intention. . “ Each case,” as Judge Dillon observes in his work on Municipal Cor- , porations, § 96, “ must be largely decided on its own circumstances and the legislative intent gathered from the whole act. Ho positive or stereotyped rule can be laid down.” Keeping this doctrine in mind, cases which might otherwise seem to conflict are easily reconcilable. To illustrate: In People v. The Mayor, 7 How. Pr., 81, Judge Mitchell held that the mayor’s discretion to license a stage-driver was absolute, that he was not bound to assign any reason for his decision, and that impeachment was the only remedy for an abuse of power.

In The People v. Perry, 13 Barb., 206, Judge Harris held that the mayor of Albany was absolutely bound to grant a license (to carry on the business of booking emigrant passengers) to any person who brought himself within the terms of the act The conflict here is but seeming. The ordinance under consideration in People v. The Mayor, “authorized and required the mayor to issue licenses to as many persons as he might think proper and to revoke the same at his pleasure ” (p. 84), while the act of 1848, chap. 219, § 7,'which was construed in The People v. Perry, conferred no such broad authority, but simply provided that no person should exercise the vocation of booking emigrant passengers without keeping a public office for the transaction of that business, u nor without the license of the mayor, for which shall he paid the sum of twenty-five dollars per annum,” and giving a satisfactory bond to the mayor as security for the proper manner in which the business should be conducted. The italicized phrase was the only expression of authority contained in the act, and Judge Harris, while intimating that it would have been better if the legislature had authorized the mayor to grant or withhold licenses in his discretion, held that such discretion could not be inferred from the language quoted; that the only discretion vested in the mayor was that of determining whether or not the bond offered by the applicant was satisfactory, and that if any further discretion had been contemplated, “ the rules of interpretation required him to suppose such intention would have been distinctly expressed.”

The language employed in the consolidation act is not as broad as that used in the ordinance under review in People v. The Mayor, nor as narrow as the expression contained in the act construed in The People v. Perry. Section 1998 provides that the exhibition shall not take place until “ a license for the place of such exhibition for such purpose shall have been first had and obtained.” Then follows § 1999, the material part of which reads as follows:

“ The mayor of the city of Hew York is hereby authorized and empowered to grant such license, to continue in force until the first day of May next ensuing the grant thereof on receiving for each license so granted and before the issuing thereof, the sum of $500.”

The relator’s contention is that these words, “ authorized and empowered,” should be considered as imperative, and he cites authorities for the proposition that permissive words may sometimes be treated as mandatory. This proposition will not be denied, but the question is whether the circumstances here call for such a construction. The rule undoubtedly is, that where public bodies or officers are empowered to do that which the public interests require to be done, and adequate means are placed at their disposal, the proper execution of the power may be insisted upon though the statute conferring it be only permissive in its terms. Mayor v. Furze, 8 Hill, 612. The word “ may ” is thus construed at times to mean “must.” But why, it may be asked, should this construction be given to the act under consideration ? What public interest demands that the mayor should be required under all circumstances to accept the fee and grant the license ? It seems to me that it is quite the other way. The public good clearly requires that the permissive words in question should be read in their natural and ordinary sense. The title which heads these sections is “ Amusements,” and a system follows, regulating places of public entertainment in important particulars. Exhibitions upon Sunday are forbidden, § 2007; so are public masquerades, § 2008; so is the sale of wine, beer or strong or spirituous liquors, § 2010; so is the presence of minors under the age of fourteen unaccompanied by an adult person. The whole act is plainly within the police power, and the payment of license fees to the society for the reformation of juvenile delinquents is a mere incident.

In Wallack v. The Mayor, 3 Hun, 84, the same view was taken of the act of 1872, from which the sections of the consolidation act already referred to were drawn. That act was entitled “An Act to Regulate Places of Amusement in the City of Hew York,” Laws 1872, chap. 836. It was of this enactment that Davis, P. J., in the case cited, observed:

“The chief object of this act is to provide for the regulation of places of amusement in the city of Hew York, by placing them under the control of the public authorities through a system of licenses to be granted by the mayor on the payment of a fixed fee.” ,

The learned judge further observed that: “It may be no difficult task to show that the system of licenses, and its consequent preclusion of unworthy exhibitions, from which license is or ought to be withheld, is greatly advantageous to such establishments as the plaintiff’s, by preventing the degradation of all such performances in the public estimation, which would be quite certain to grow out of the promiscuous and unrestrained exhibitions which would spring up in the absence of legal restrictions.”

The relator lays great stress upon the fact that the license is not for the entertainment itself, but for the place where it is to be given. But the language is: “ For the place of such exhibition for such purpose that is, for the purpose of the‘proposed entertainments. The applicant must, therefore, specify the purpose as well as the .place, and the inquiry which the mayor may then properly institute is not limited to the applicant’s characterization of his intended performance. If the applicant openly avows an immoral purpose, surely the mayor is not bound to facilitate the execution of such purpose. If, however, the purpose is apparently proper, the mayor may look beneath the surface, and ascertain the real purpose; and if, upon investigation, that purpose in his judgment is inimical to good order and public decency, he may properly withhold the license. It would indeed be a remarkable construction, subversive of the entire object sought to be attained by the act, which would compel the mayor to license an avowedly indecent exhibition, or a disorderly place of entertainment The relator insists that even under such circumstances the license must be granted, and that the only remedy is to treat the exhibition as a nuisance, and check it by the operation of the criminal law. This, however, would be entirely inadequate. The purpose disclosed or ascertained might be grossly immoral, and yet outside the Penal Code. It is no answer to say that after the license is obtained the manager may change his plans, and foist an improper exhibition upon the public, or that he may lease to another, who will do likewise. Th^t may be, and yet it furnishes no good reason for depriving the mayor of the exercise of original judgment.

On the contrary, it is an argument in favor of careful discrimination in the first instance. But even if the mayor’s authority were limited to the place, without regard to the purpose, his discretion remains. The locality of play houses, circus pavilions, concert halls and the like, is clearly a matter of public concern. It may well be, for example, as Mayor Grant has decided in the present instance, that a building for the exhibition of curiosities, with the enlivenment of music and song, erected upon the site of “The Argyle” and “ The Haymarket,” formerly notorious resorts, would be likely to attract the evil characters who are said to abound in the neighborhood and who were formerly patrons of the resorts named. The question of the neighborhood was thus highly important, and it was clearly a question upon which the mayor might exercise his judgment.

The view which we have taken of the act under consideration is fully supported by the authorities. In Morse v. Edson, Supr. Ct., MSS. opinion, Mr. Justice Ingraham carefully examined the subject, and in an able opinion, reviewing the cases, arrived at the conclusion that the power to license was discretionary. Since that case was decided the same conclusion was arrived at with regard to a similar act, in The People ex rel. Dorr v. Thacher, 42 Hun, 349 ; 3 N. Y. State Rep., 710. In the latter case the language used was also permissive. It was held that it would be contrary to the policy of the law to treat it as mandatory, and that it was intended to be permissive “ in view of the object and end to be answered by an observance of the right conferred.”

The Commonwealth ex rel. Miller v. Stokley, 12 Phil., 316, is cited by the relator as an authority against the claim of discretion. An examination of the case, however, will show that the language of the act was mandatory, “ which license shall be granted upon the payment, etc.,” and that the decision was regretfully placed upon that express ground.

Other questions are discussed upon the appellant’s brief, but they are not entitled to serious consideration upon this appeal. Por instance, the argument against the constitutionality of the act. That argument certainly does not advance the relator in the direction of a mandamus. It is only by ignoring the law and proceeding without a license that he can raise that question.

It is not necessary to consider the question whether the discretion is under any circumstances reviewable. The relator contends that if it exists at all, the discretion is qualified by the requirement of good faith. He insists, in other words, that it is not an arbitrary discretion, but one which must be reasonably exercised. There are cases where an abuse of discretion may be controlled by mandamus. Topping on Mandamus, Am. Ed., 66 ; Glencoe v. The People, 78 Ill., 382, but the difficulty here is that the court cannot substitute its judgment for that of the officer. To do so would be in effect to usurp the power to grant the license. People v. Supervisors of Albany, 12 Johns., 414. But this subject need not be pursued, for the relator has not made out a case of this extreme description. Many of his statements, it is true, are expressly admitted or not denied, but his averments of good moral character, and his intention to give proper and moral performances, are explicitly denied. The mayor expressly puts his refusal to license the relator upon two grounds : first, that he is not, in the major’s judgment, a man of such character as to render him a proper person to be entrusted with the license; and, second, that it would be dangerous to the good morals and welfare of the community to license the premises in question. Several facts are stated, somewhat generally, it is true, in support of these positions, and it is therefore impossible to treat the mayor’s decision in the matter as an abuse of discretion. Certainly, the relator has made out no case for a peremptory mandamus, for the facts upon which he claims that the mayor’s conduct was arbitrary and oppressive are sufficiently in dispute to raise an issue upon that head; and an alternative mandamus was not asked.

It follows that the order denying the application for a peremptory mandamus should be affirmed, with $10 costs and the usual disbursements.

Van Brunt, P. J., and Bartlett, J., concur.


source: Caselaw Access Project

author: Bartlett, J.

license: Public Domain

text:
    Michael Fuchs, Pl’ff, v. The Wm. H. Sweeney Mf’g Co., Def’t.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. Master and servant—Negligence.
    The obligation of a master to exercise all reasonable care to keep machinery in repair is no less absolute than his obligation to use the same degree of care to furnish safe and suitable machinery for the use of his servants in the first instance.
    2. Same.
    Plaintiff, while working for defendant, had his fingers injured, and claimed that if the machinery had been in order it could not have happened. He had shortly before notified the superintendent that the machine was out of order, and the latter examined it and said it was all right. The evidence as to the examination was conflicting. Another workman testified that he cleaned it two or three days later and found it in good working condition, but on cross-examination said that if the clutch had been in order the accident could not have happened, and that he had a new clutch made. Held, that there was enough to take the case to the jury on the question of negligence, and that a dismissal was improper.
    Exceptions of the plaintiff ordered to be heard in the first instance at general term, after a dismissal of the complaint at circuit at the close of the evidence on both sides.

      Samuel D. Levy, for pl’ff; Charles H. Hill, for def’t.
   Bartlett, J.

The plaintiff was hurt while at work upon a stamping machine. Trie hammer, according to his testimony, came down when his foot was not upon the treadle, and this it could not have done, he asserts, if the machine had been in proper order. Were there nothing else in the case to show that it was out of repair, I should be quite satisfied with the dismissal of the complaint at the circuit; but there is much more. About two hours before the accident, the plaintiff observed that the machine could not be easily operated, and he called the attention of Mr. Sweeney, the defendant’s superintendent, to the fact, telling him that something was the matter with the machine. Therefore, says the plaintiff, Mr. Sweeney came down and looked at it, but did not work it; and declaring that the machine was all right, he directed the plaintiff, in rather emphatic langnuage, to go on using it. Mr. Sweeney denies having uttered the violent words attributed to him by the plaintiff on this occasion, and states that when he was told that something was the matter with the machine, he had the plaintiff operate it in his presence, and it worked as it should work. The same witness testifies that he also examined the machine immediately after the accident, and that he found the clutches all right and nothing the matter with it. The machine, two or three days later, was turned over to one Thomas Scully, another workman, who took it apart and cleaned it. He was called as a witness, and on his direct examination said that he found it in good working condition. On cross-examination, however, he testified as follows:

“ Q. If that lower clutch had been in a proper condition on the 28th day of August, it would have been impossible for the hammer to have struck Mr. Fuchs’ fingers? A. Yes, sir.

“ Q. Did you repair the under clutch after you got back to work there? A. Yes, sir.

“ Q. Is it in the same condition now that it was when Mr. Fuchs was working there ? A. About three months after I had another one made.

“Q. So as to protect the workmen ? A. Yes, sir.” I think this testimony points toward the existence of a defect in the machine at the time the plaintiff was hurt, and if such a defect existed, and the defendant’s superintendent instead of testing the machine by having it operated in his presence, as he says he did, was content with the much slighter examination indicated by the evidence of the plaintiff, this, together with the other facts in proof, would furnish a basis for the charge of negligence. If by the exercise of proper care and inspection the defendant’s superintendent ■could have discovered and remedied the defect which led to the injury, the defendant is liable.

The obligation of a master to exercise all reasonable care to keep machinery in repair is no less absolute than his obligation to use the same degree of care to furnish safe and suitable machinery for the use of his servants in the first instance. Benzing v. Steinway, 101 N. Y., 547. Upon the present review of the case at bar we are bound to give the plaintiff the benefit of the most favorable view of the evidence which can be taken in his behalf; and doing this, it seems to me quite clear that there was enough to take the question of negligence to the jury. I think the plaintiff’s exception to the dismissal of the complaint was well taken and that he should be granted a new trial.

This case ought not to bed isposed of, however, without expressing our disapproval of the manner in which the appeal book has been printed. The plaintiff’s attorney has caused to be printed in italics or even small capitals all those portions of the evidence which are most favorable to his client. This is a flagrant disregard of Rule 42 of the General Rules of Practice, which would not have been overlooked except for the fact that the case was submitted without oral argument so that the matter was not brought to our attention until after the term had ended. Because of this violation of the rule the appellant must be deprived of the costs which would otherwise be awarded him to abide the event of the new trial.

Van Brunt, P. J., concurs.


text:
    The People ex rel. Thomas A. Carman, v. Charles F. MacLean et al., Police Comm’rs.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Municipal corporations—Police—Removal.
    Relator was removed from office on the ground of intoxication. The roundsman and police surgeon, who examined him when brought in, testified that his breath smelt of liquor. Relator testified that under a physician’s advice he had taken morphine and belladonna, but the physician stated that the drugs were not sufficient under ordinary circumstances to produce that effect. Relator did not deny having taken an intoxicating drink on that night. Held, that there was no such preponderance of evidence in favor of relator as called for reversal.
    Certiorari to review the action of the board of police commissioners in dismissing the relator from the police force of this city.

      John M. Tierney, for relator; K II. Hawke, Jr., Chas. A. O'Neil, and William H. Clark, for resp’ts.
   Barrett, J.

There was no such preponderance of evidence in this case, in favor of the relator, as would justify us, under the authorities, in reversing the action of the board. All that can possibly be said is, that the question whether the relator was under the influence of drugs or drink was a doubtful one. But there was one significant fact which seems to have been overlooked by the learned counsel, and that is, that while the relator pleaded not guilty to the charge, he nowhere in his testimony denied having taken any intoxicating drink on the night in question. His testimony was elaborate and detailed with regard to his movements, and he told the board that, under medical advice, he had taken a preparation of morphine and belladonna, which might, according to the statement of his physician, have reduced him to the unconscious state in which he was found. But this physician also stated that the doses which he prescribed were not sufficient, under ordinary circumstances, to produce the effect claimed by the relator. They might, however, have done so, he explained, in view of the relator’s mental worry. And so they might also have acted more intensely if supplemented by drink. Mow, although the rounds-man and the police surgeon, who first examined the relator when he was brought to the station house, pronounced him intoxicated, and declared that the smell of liquor proceeded from his breath, he contented himself with proof of illness, worry and the use of these drugs. The fair inference is that drink had been added to his other burdens and that the totality was too much for him.

There is no principle upon which we can interfere on his behalf, and the writ should be dismissed; with costs.

Van Brunt, P. J., and Bartlett, J., concur.


author: Yah Bbuht, P. J.

text:
    In the Matter of the Application of Robert Schell.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Attorneys—Summary Proceedings against—Cannot be maintained by ASSIGNEE OP CLIENT.
    A summary proceeding against an attorney to compel the payment of money by_ him cannot be maintained by an assignee of a claim against him. It is a procedure strictly between attorney and client, and by the assignment of his claim the client cannot assign his relationship.
    Appeal from an order requiring the appellant, an attorney of this court, to pay over certain moneys or be committed as for a ■contempt.

      M. B. Smith, for app’lt; John Délahauty, for resp’t
   Yah Bbuht, P. J.

The papers in this case present the rather curious anomaly of two separate, distinct and inconsistent ordeis being entered upon a single application with nothing upon the face of the papers to show that one order is intended to replace or be a resettlement of the other.

This practice is one that is not to be encouraged, and if no other reason existed, we think it would form a sufficient ground for a reversal of the order appealed from.

But there are other points which seem to be fatal to the application, and these may as well be disposed of upon this appeal as at any other time.

It appears from the papers in the case that the appellant had been retained by one Edward Schell to vacate an assessment and subsequently to recover certain moneys paid to the mayor, etc., because of said assessment.

It was claimed upon the part of the appellant that he had two distinct retainers, and that he was entitled under such retainers to retain the sum of fifty per cent of the recovery. The respondent, however, claims that he was only entitled to retain twenty-five per cent and that the respondent was entitled to the payment of the balance. Edward Schell assigned his claim against the appellant to one Robert Schell, who brought this proceeding against the appellant for the payment of the money or his punishment for a contempt

We do not think that an assignee of a claim against an attorney can avail himself of this summary remedy. It is a procedure strictly between attorney and client, as is recognized in the Matter of Knapp, 85 N. Y., 284, and by the assignment of his dlalm against the attorney the client cannot assign his relationship. It is a grievance personal to himself. It is because of the relations existing between attorneys and clients, that the client is allowed to pursue this extraordinary remedy; and it is because it is the duty of the court to see that the attorney acts with fidelity as well to"the court as to the client that it assumes this jurisdiction. There does not seem to be any principle upon which a stranger, simply because he has become the owner of a demand which had once been owned by a client, can seek this protection of the court. The court does not owe any duty to him. He has not confided in the attorney because of this summary jurisdiction which he might invoke for his protection, and he stands, therefore, in an entirely different relation to the attorney than that which the client occupies. .

As already intimated, it is the duty of the court to see that an attorney acts with fidelity towards his client. No such obligation is placed upon the court as to strangers, and we have not been able to find any occasion on which such authority has ever been assumed or even hinted at.

There certainly is no fiduciary relation existing between the assignee of a client and the attorney. Whatever obligations may exist between them are simply contractual, and the assignee, in taking an assignment from a client of a claim against an attorney, has no reason to suppose that he can claim against such attorney the penalties which a client may invoke. As already stated, the right depends upon the relationship; upon the credit given by the client to, and the confidence reposed in the attorney because of his being an officer of the court. To hold that an assignee, who is a stranger so far as being the client of the attorney is concerned, should be able to invoke these extraordinary remedies would be to establish a principle which would entitle any creditor •of an attorney to resort to the same procedure.

And further, in this case there was a dispute as to what the ■contract was between the attorney and client, and- it seems to ns that unless it appears that this dispute was clearly frivolous, resort to these proceedings should not be encouraged.

The order should be reversed, with ten dollars costs and disbursements, and the application denied.

Bartlett and Barrett, JJ., concur.


author: O’Brien, J.

text:
    Annie C. Leadbetter, Pl’ff, v. N. H. Leadbetter, Limited, Def’t.

      (Court of Appeals,

      Filed January 13, 1891.)

    1. Chattel mortgage—Rights and priorities as between mortgagee, JUDGMENT CREDITOR AND RECEIVER OB MORTGAGOR.
    A chattel mortgage given as security for notes falling due at different times provided that if any instalment was not paid, or if any judgment was entered against the mortgagor, the whole sum would become due, and that the mortgagee could take possession and sell on giving five days’ notice. One of the notes fell due, and was unpaid, and three judgments were recovered, and executions levied on the mortgaged property three days before a receiver of the mortgagor was appointed. By consent of all parties the receiver sold the property, the proceeds to be held subject to the rights of the respective parties. ' Held, that the judgment creditor took nothing by his levy, for the reason that the defendant in the execution had no interest upon which the lien of the execution could attach.
    53. Same.
    After default, the mortgagor has no interest in the mortgaged property that can he sold on execution against him, and the event had happened which made the mortgage instantly due, and there was no right of possession in the mortgagor when the levy was made.

      3. Same—Notice.
    The condition in the mortgage in regard to notice applied only to the time and place of the sale under the mortgage, and the notice was not necessary in order to perfect the default.
    Appeal from judgment of the supreme court, general term, first department, affirming order of special term confirming report of referee.

      Z. 8. Sampson, for app’lt; Joseph F. Bosworth, for resp’t.

       Affirming 32 N. Y. State Rep., 890.

   O’Brien, J.

The order from which this appeal is taken determined the right of two claimants to a certain fund which both claimed to be entitled to. The party who succeeded in the courts below is the receiver of the defendant, and the other claimant who failed and brings this appeal is a judgment and execution creditor of the defendant.

The undisputed facts upon which the question arises are these: The defendant is a corporation organized under the limited liability act. In proceedings in this action to dissolve it, by reason of insolvency, the respondent, William Gk Shailer, was appointed receiver on the 28th of October, 1889. Previous to this, and on the 13th day of February, 1889, the defendant duly executed and delivered and procured to be filed in the proper office a chattel mortgage for $3,000, to secure the payment of its notes to that amount for money borrowed. The condition of the mortgage was that the defendant should pay the notes as they became due, and that in case of default in the payment of the notes, or any of them, when due, or in case the mortgagor before the notes, or any of them became due, should remove any of the goods or suffer any attachment or other process against property to be issued against it, or any judgment to be entered against it, then the said sum of $3,000 should become instantly due and the mortgagee or his assigns should have the right to take possession of the goods and carry them away and sell the same for the best attainable price, on five days notice to the mortgagor, and from the proceeds pay the amount unpaid on the notes and render the sum remaining to the mortgagor or his assigns. Some of the notes, to secure which the mortgage was given, were paid. Before the receiver was appointed, two of the notes became due and remained unpaid, one on the 10th of August, 1889, and another on the 10th of October, 1889.

On the 25th of October, 1889, William E. Hardy, who brings this appeal, recovered a judgment against the defendant for $4,823.42, and on the same day procured execution to be issued thereon and a levy to be made on the property covered by the mortgage. This levy was made, as will be seen by the dates, three days before the receiver was appointed. On his appointment there were three parties claiming the property, namely : The holder of the chattel mortgage and the unpaid notes to'secure the payment of which it was given, Hardy, the judgment and execution creditor, and the receiver. In this condition of affairs an order was entered in the action to dissolve, upon the consent of the receiver, the mortgagee and the judgmént creditor, the plaint■iff’s attorney in the suit not objecting, that the property be sold by the receiver, and that “ the proceeds arising from such sale or sales be substituted for and take the place of the property sold and be subject to the same liens as existed against the property, and the rights of all the parties remain in full force arid effect as they were at the time of the sale.” This order also, upon the ■same consents, appointed a referee “to hear and determine the rights, liens and priority of claims to said property or proceeds,” the expenses of the sale to be paid first from such proceeds, and the balance to be paid over on the coming in and confirmation of "the referee’s report as therein provided. The referee found that the net proceeds of the sale, after paying expenses, was $4,107.83 ; "that the amount due on the notes secured by the mortgage was $2,000, and interest thereon from February 7, 1889 ; that out of the net proceeds of sale there should be paid first to the holder of the notes and mortgage the amount so found due. That as there was default in the payment of the mortgage when the levy "was made by the judgment creditor, both by reason of the nonpayment of the notes and the entry of the judgment, the mortgagor had no legal interest in the property, and that the receiver was entitled to the balance remaining after payment of the mortgage. The report was confirmed by the court and the order entered thereon affirmed on appeal by the general term.

We think that the appeal of the judgment creditor cannot be sustained. Though he made the levy three days before the receiver was appointed, yet he took nothing by it for the reason that the defendant in the execution had no interest upon which the lien of the execution would attach. The law seems to be settled in this state that after default the mortgagor has no interest in the mortgaged property that can be sold on execution against him. Hull v. Carnley, 11 N. Y., 502; Hall v. Sampson, 35 id., 274; Galen v. Brown, 22 id., 37; Manchester v. Tibbetls, 121 id., 223; 30 N. Y. State Rep., 721. The event had happened that made the mortgage instantly due, and there was no right of possession in the mortgagor when the levy was made. The condition in the mortgage in regard to notice applies only to the time and place of the sale under the mortgage, and notice was not necessary in order to perfect the default.

The order should be affirmed, with costs.'

All concur.


text:
    Miguel Garcia, Executor, App’lt, v. Mary R. Callender, Resp’t.

      (Court of Appeals,

      Filed January 13, 1891.)

    Deed—Covenant by grantee to give grantor the right oe “pre-' EMPTION.”
    A deed contained a covenant that the grantor, his heirs, etc., “at any time shall have the right of pre-emption of the premises described * * * for the sum of twelve thousand dollars.” Held, that the term meant, not that the grantor could at any time require a reconveyance on tendering $12,000, hut that when the owner desired to sell the property or offered it for sale or when it was put upon the market again at the price of $12,000, then the grantor should have the first right of purchase or the option to buy it in preference to any one else at that price.
    Appeal from judgment of the supreme conrt, general term, first department, affirming judgment entered; upon trial at special term dismissing plaintiff’s complaint

      John J. Weekes, Jr., for app’lt; Henry II. Anderson, for resp’t

       Affirming 24 N. Y. State Rep., 654.

   O’Brien, J.

The plaintiff brought this action to compel the defendant to specifically perform a covenant contained in a deed of real estate executed by the plaintiff’s testator to the defendant’s ancestor, or to recover his damages for breach of the covenant. On the 24th of October, 1854, John Garcia, the plaintiff’s-testator, conveyed to Jane J. Callender, the defendant’s mother, in consideration of $12,000, a dwelling house on Twentieth street,, between Fifth and Sixth avenues, in the city of Mew York. The defendant is in possession of the premises as heir-at-law of the grantee in this deed. The conveyance contains covenants of seizin and warranty, and then follows the special covenant which gave rise to this action: “And the said party of the second part for herself, her heirs and assigns, doth hereby further covenant and agree to and with the said party of the first part, his executors, administrators and assigns, that the said party of the first part, his heirs, executors and administrators, shall at any time have the right of pre-emption of the premises above described and conveyed to the said party of the second part by the party of the first part, at and after the same price as the above mentioned consideration for the conveyance, to wit: the sum of twelve thousand dollars ($12,000), and the said party of the second part for herself, her heirs and assigns, doth forever covenant and agree to and with the said party of the first part, his executors, administrators and assigns, that she, the said party of the second part, will not make, or cause to be made, any change or alteration in the exterior appearance of the building now erected on the premises above described that will destroy or alter its present uniform appearance with the buildings adjoining on each side.”

It is alleged in the complaint that the premises are now worth the sum of $35,000, and it is found by the trial court that before the commencement of this action the plaintiff tendered to the defendant $12,000 and demanded a conveyance of the same to him, which was refused; also that the defendant had never offered the property for sale, that it was not for sale and that defendant did not intend to sell'it and that its value was $28,000. Mo proof was given upon the trial to show what was the purpose of the parties in inserting this peculiar covenant in the deed, and we must therefore give construction to it from the language alone. In Randall v Sanders, 87 N. Y., 578, it was held that in a sale and conveyance of lands it was competent for the grantor and grantee to contract with each other for a re-sale, but in that case the instrument provided in terms for a conveyance of the property within a period named and for a specified sum. In this case the right given to the grantor by the words of the covenant is that of “ preemption of the premises ” for the price of $12,000, and the question is what did the parties mean by that term; for this covenant must be construed; like all other contracts, according to the intention of the parties to be gathered from the language used and all the surrounding circumstances.

Whatever right was given by the covenant, was to be exercised “ at any time,” and the plaintiff contends that after the lapse of thirty-one years, when the parties to the deed are both dead, he has the right to tender the $12,000 and compel a conveyance to him though the property is concededly worth considerable more than double the sum tendered. If the covenant is fairly susceptible of some other construction than the one urged by the plaintiff it ought to be given to it The term “ pre-emption ” at common law was used to express the right of the king through his purveyors to buy provisions and other necessities for the use of his household at an appraised value in preference to all others, and even without the consent of the owner; and also of forcibly impressing the carriages and horses of the subject to do the king’s, business on the public roads in the conveyance of timber, baggage' and the like, however inconvenient to the owner, upon paying him a settled price. 1 Shars. Black. Com., 287; 1 Steph. Com., 8th ed., 539 ; Webster’s Diet., Pre-emption.

In international and commercial law the term is used as expressive of the right of a nation or country to detain the goods of strangers passing through its territories or seas in order to afford to its subjects or citizens a preference of purchase. Chitty Com. Law, 103; Manning’s Law of Nations, 393, 395; 2 Bouv. Law Diet., 361.

It is quite safe to conclude that when the convenant in question was made, the parties to it must have used the word in some other sense and for the purpose of expressing some other idea. In this country the term has been given a peculiar meaning in common parlance as well as in the practice of the departments of the government of the ' United States charged with the duty of administering the regulations of congress for the sale of the public lands to settlers. The right of a person to purchase some part of the public lands at a specified price, when opened for sale, in preference to any one else is called the right of pre-emption in the practice of the government and in the decisions of the United States. The term is used- here to express the idea that some one has the first right to purchase when the land is offered for sale, or the option of buying first. This meaning of the word is recognized in the acts of congress and in numerous cases. U S. v. Fitzgerald, 15 Peters, 407; Wilcox v Jackson, 13 id., 498; Lytle v. State of Arkansas, 9 How.,U. S., 533; Cunningham v. Ashley, 14 id., 377; Barnard's Heirs v. Ashley's Heirs, 18 id., 44; Garland v. Wynn, 20 id., 6; 2 Bouv. Law Dict., 561; Rev. Stat., U. S., § 2269, § 2273.

In this state grants of land under water heretofore made by the state to the city of New York were subject to the condition that when the city offers such lands for sale the owner of the adjacent uplands shall have the first right to purchase the same. This peculiar right of the owner of adjacent uplands is called by the courts and in common language the right of pre-emption. Mayor, etc., v. Hart, 95 N. Y., 456; Furman v. The City, etc., 5 Sand., 43; Towle v. Palmer, 1 Robt., 437, 446. We think that it was in this sense that the term was used in the covenant in question. It meant, not that the grantor could at any time require a re-convey-once on tendering $12,000, but that when the owner desired to sell the property or offered it for sale, or when it was put upon the market again at the price of $12,000, then the grantor should have the first right of purchase or the option to buy it in preference to any one else at that price.

If this is the correct construction to be given to the words of the covenant then the plaintiff was not entitled to recover.

The judgment should be affirmed, with costs.

All concur, except Ruger, Oh. J., and Earl, J., not voting.


author: _ Gray, J.

text:
    De Witt C. Ward, App’lt, v. The Hudson River Building Co., Resp’t.

      (Court of Appeals,

      Filed January 13, 1891.)

    1. Contract—Excuse for non-performance—Act of God. ,
    Plaintiff having contracted to erect certain houses by an agreement which stated that he was to pay $10 for every day’s delay after a certain time, as liquidated damages, was in default prior to March 5, 1888, and the parties entered into another agreement reciting the failure to complete the original contract, etc., and that it was mutually agreed that the sum, or penalty, due under said contract on March 25, 1888, shall be $1,540, by way of liquidated damages, unless said four villas and all extra work are then entirely finished, etc. On March 25th another agreement was made settling matters of difference, “ but leaving the question of said penalty for litigation" in case plaintiff chose to bring suit within six months. He did so. claiming that his work was delayed by an act of God, the great storm of March 12th, known as the “Blizzard.” Held, that this was not a case for equitable relief, that the last agreement was simply s settlement of the controversies which had arisen but left out for litigation the question of the penalty; that none of the features of a penal obligation were present, and plaintiff should be held to his agreement.
    2. Same—Liquidated damages.
    Where parties have stipulated for a payment in liquidation of damages, which are in their nature uncertain and unascertainable wi h exactness and may be dependent upon extrinsic considerations and circumstances, and the amount is not on the face of the contract out of all proportion to the probable loss, it will be.treated as liquidated damages.
    3. Same.
    The use of the word “penalty” in the last agreement- did not furnish a rule for construction or prevent the court from inquiring into what was covered by'that expression.
    Appeal from judgment of the supreme court, general term, second department, reversing judgment entered on trial before a judge without a jury.
    The plaintiff was a contractor and builder, and entered into contracts with the defendant for the erection of certain houses. By this action he seeks to be relieved from what he terms the penalty contained in his contracts, and to recover from the defendant a certain amount of money withheld hy it. Bach of the original building agreements contained a provision that in default of a completion of the work by a certain date mentioned, “ the contractor shall pay to the owner ten dollars for every day thereafter that the said work shall remain unfinished, as and for liquidated damages.”
    The plaintiff was in default as to each contract, and on March 5th, 1888, some time after the default, the parties entered into a further agreement with respect to their matters. This latter instrument recited the making of the original contracts ; the failure to complete; the desire of the contractor for an extension of time, and to avoid the payment of the penaltyj and then the following agreement is inserted: “ It is mutually agreed that the sum, or penalty, due under said contract, on March 25th, 1888, shall be $1,540, by way of liquidated damages, unless said four villas and all extra work are then entirely finished, etc.” The contract specifies what further is to be done in the way of work, etc., in order to entitle Ward to a waiver on the company’s part of his default, and it contains a further agreement in these words: “It is further mutually agreed that in case said Ward fails to complete said villas on or before said 25th day of March, 1888, as aforesaid, there shall be due and owing to said Hudson River Building Company, its successors or assigns, the sum of $1,540 by way of liquidated damages, etc.”
    When March 25th had arrived, the work was still not completed, and on March 30th the parties again came together and entered into a further agreement. It recited the making of the previous contract of March 5th, the failure to complete, and that “ the said Ward claims that, notwithstanding that fact, the penalty referred to in said contract should not be exacted by reason of the allegations of fact as contained in a type written statement made by James M. Hunt, and this day presented to the company; and, whereas, the parties hereto are willing to close all matters of difference this day, leaving the question of the said penalty for litigation, in case said Ward chooses to litigate the same, said suit to be commenced within six months from date, if at all, and the said parties reserving all other questions and property from this controversy, except the one question of penalty, as alleged.” The parties then proceed to state their respective agreements in relation to matters of work, liens and payments; which are not material to be particularly recited here.
    The statement of Hunt, referred to as containing the plaintiff’s objection to the exaction of a penalty, relates the occurrence of the so-called “blizzard” of March, 1888, states the consequent impossibility of proceeding with the contractor’s work, argues that delay was excusable, for being caused by an act of God, and then makes demands for payments and propositions for the completion of the work, etc.
    This action was commenced within six months of the last contract, and the basis for the relief demanded in the complaint is that there had been a substantial performance, and that entire performance was only prevented by an act of God, in the occurrence of the great storm known as the “ blizzard,” and that the work had been finished and accepted by defendant
    At special term the plaintiff had judgment, which was reversed at the general term, and from that reversal the plaintiff has appealed to this court.

      James M. Hurd, for app’lt; George W. Cotterill, for resp’t.

       Affirming 24 N. Y. State Rep., 347.

   _ Gray, J.

The appellant seeks to excuse the failure to perform _ his agreement and to be legally absolved from the pecuniary loss consequent thereupon, by invoking the application of an equitable rule which relieves from a penalty and from forfeiture whenever performance has been rendered impossible by the act of God; by which expression he characterizes the storms and atmospheric disturbances in the state of New York and elsewhere which set in about March 12, 1888, and was popularly described as “the blizzard.” We do not think, however, that this is a case for equitable relief, or for any such application of the rule referred to. By the original contracts of the parties, .default in completion of the houses, which were the subject matter of their making, subjected the contractor to the liability to respond to the owner in a sum measured by the number of days of default and-agreed upon between them to be in liquidation of all damages. When the default occurred, the new contract which'followed did not excuse the plaintiff or waive his default; but, on the contrary, was an agreement between the parties fixing what the amount of the sum due by way of liquidated damages would be upon a certain date and stipulating that it should be due and owing then, if the contractor’s work still remained unfinished. The last agreement has no further bearing upon this matter than to evidence the fact that the continuing default of the contractor was not excused, and that if he chose to litigate the question of an excuse by act of God, which his lawyer advanced, he was at liberty to do so. It was, simply, an agreement in settlement of the controversies which had arisen; but which left out of them for subsequent litigation the one question of what is there called the penalty. Whether the sum agreed between the parties to be paid, in tíre event of a breach of some agreement, is termed by them a “penalty” or “liquidated damages,” is not controlling upon the question of construction. Their use of such words is not always conclusive as to their legal meaning. To get at that we must consider the subject matter and nature of the agreement and understand clearly the intention of the parties. If it shall then appear that the damage or loss which may be presumed to result from non-performance are uncertain and incapable of exact ascertainment, then the payment or liability fixed by them must be deemed to be liquidated damages and recoverable as such.

Where, however, a sum has been stipulated as a payment by the defaulting party, which is disproportionate to the presumable, or probable damage, or to a readily ascertainable loss, the courts will treat it as a penalty and will relieve, on the principle that the precise sum was not the essence of the agreement, but was in the nature'of a security for performance. This subject has been reviewed in very many opinions, to a few of the more interesting of which in the English reports and those of our state I may call attention.

In Lowe v. Peers, 4 Burr., 2228-9, Lord Mansfield, and in Kemble v. Farren, 6 Bing., 141, Tindal, C. J., discuss the subject. In Dakin v. Williams, 17 Wend., 447, and 22 id., 201, Nelson, Ch. J., in the first report, and Chancellor Walworth, in the second, review the question in the light of the English and New York cases. Hosmer v. True, 19 Barb., 106; Lampman v. Cochran, 16 N. Y., 275; Clement v. Cash, 21 id., 253; Little v. Banks, 85 id., 258.

The result of an examination of cases is to confirm the idea that it is difficult, if it is even possible to lay down a general rule applicable to all the cases which arise where parties have undertaken to provide against a loss consequent upon a breach of an agreement. We may, at most, say that where they have stipulated for a payment in liquidation of damages, which are in their nature uncertain and unascertainable with exactness, and may be dependent upon extrinsic considerations and circumstances, and the amount is not, on the face of the contract, out of all proportion to the probable loss, it will be treated as liquidated damages.

In this case, the last agreement of March 30th, upon which the plaintiff seems to rest the use of the word “ penalty,” does not furnish a rule for construction and does not prevent us from inquiring into what was covered by that expression. That inquiry commences with the making of the original contracts and extends over their execution and until the parties made their final agreement of March 30th. As contracts for the erection of dwelling houses, a presumable damage would accrue from the houses not being in readiness for sale and occupation at the time fixed. What that damage would amount to was, obviously enough, incapable of exact ascertainment. But it can be readily seen that for the owner it was a matter of considerable pecuniary importance that the invested capital should be made productive from the earliest possible moment. A provision in his contract with' the builder, by which the latter agrees to pay him a fixed sum as liquidated damages, in the case of non-completion by the day appointed, is as reasonable as it is quite just to both parties. So, looking at what was contemplated, what was written, and what occurred in this case, I think it is evident that the use of the term liquidated damages in the original contract exactly defined what the parties must reasonably have intended, namely: the payment of a certain sum of money, which should operate to extinguish any claim of the owner for damages by reason of the plaintiff’s non-completion of the houses ; that the contract made after the default had occurred recognized, on the contractor’s part, a liability therefor, and was made for the purpose of stating the sum due and payable by him on a certain day, and of opening a way for him to be forgiven its payment.

None of the features of a penal obligation are present, and the plaintiff should be held to his agreement. The damages were liquidated, and the contract made no provision against the result of an interference with its performance by the intervention of occurrences unforeseen and beyond the plaintiff’s control. Having contracted absolutely to complete the houses on or before a certain date, unforeseen contingencies, no matter of what nature, are not available to plaintiff as a defense to the exaction of damages. Harmony v. Bingham, 12 N. Y., 99; Tompkins v. Dudley, 25 id., 275; Wheeler v. Ins. Co., 82 id., 543.

In the view we have taken of the contracts of the parties, discussion of the other points presented by the appellant as to admissions in the pleadings, and as to whether the reversal by the general term was justified upon the facts, is needless. The litigation was over the mooted point that the default clause in the contracts was in the nature of a penal obligation, and that the performance being rendered impossible by the act of God, the penalty could be relieved against. The trial court so found and adjudged. We have sustained the reversal at general term, and hold that the parties had themselves fixed the damages chargeable to delay in performance of the contract, and that no legal defense existed to the exaction of the stipulated sum, by reason of the occurrence of an unforeseen contingency.

The order reversing the judgment at special term and ordering a new trial should be affirmed, and under the stipulation judgment absolute is ordered for the respondent, with costs.

Judgment of general term affirmed, and judgment absolute ordered for the defendant on the stipulation, with costs.

All concur.


author: Peckham, J.

text:
    Charles Cleveland, Resp’t, v. The New Jersey Steamboat Co., App’lt.

      (Court of Appeals,

      Filed January 13, 1891.)

    1. Negligence—Steamboat.
    Plaintiff having boarded defendant’s steamboat, turned round to wave his handkerchief to his friends on shore, just as the boat started, and some one rushing by him jumped overboard and the people rushing to the side pushed plaintiff into the water. At this time the lines were cast off, the mate had the gate of the gangway in his hands and was in the act of putting it in its place. It did not appear that there was an order to close and secure the gate before the steamer started. Held, that the accident was the result of causes for whose existence no one was legally responsible, and therefore defendant could not be found guilty of negligence.
    3. Same.
    It is immaterial whether the mate when he heard the voice and turned around, did so for the purpose of letting the man through the opening or only for the purpose of seeing what was being done with a view to perform his own duty more intelligently.
    (Rugee, Oh. J., dissents.)
    Appeal from judgment of the supreme court, general term, fourth department, affirming judgment for plaintiff entered upon a verdict.

      W. P. Prentice, for app’lt; Edwin H. Bisley, for resp’t.

       Reversing 25 N. Y. State Rep., 666.

   Peckham, J.

This is the third time this case has been before

us. On the former appeals the judgments for the plaintiff were reversed on the ground that no negligence on the part of the defendant was proved. Subsequent to the last reversal a third trial was had at the circuit and the plaintiff was nonsuited in obedience to what was supposed to have been the ruling of this court. That nonsuit was set aside on appeal to the general term of the supreme court, and a fourth trial was had, resulting in the recovery of a judgment by the plaintiff, which has been affirmed by the general term, and from that affirmance the defendant has appealed here.

The action'was commenced on the 18th of December, 1873, and from that time it has been fought with great tenacity by both sides. The case is a strong illustration of the uncertainties inherent in the application of well known and easily understood principles of law to facts as they appear on different trials. One side contends that the facts now before us are substantially the same as those which have been passed upon by this court in the former appeals, while the other contends that the principal question for us now-to determine has never been decided adversely to him by this court, nor has it been presented on its merits as it now stands.

We must take the case from the record now before us, and if the plaintiff made out a case to go to the jury we cannot interfere, although the defendant should claim that the evidence on the part of the plaintiff was so contradictory as to be unworthy of belief In general, the credibility of witnesses is for the jury to pass upon, and this court has no function of that kind to perform.

Some things have been adjudicated in the former appeals and are not now open for discussion. It has been decided that the plaintiff was on the boat in the character of a passenger, and the defendant owed him the duty which a carrier of passengers owes to a person in its charge as such. It was conceded then, and is not denied now, that the defendant had on its boat all the appliances necessary and proper to prevent such an accident. It was stated on the first appeal that it was plain the accident would not have happened but for an extraordinary and unprecedented concurrence of circumstances, viz., the attempt of three rash persons to regain the land after the boat had started; then the heedless and unthinking rush and pressure of a crowd of passengers of ordinary sobriety and prudence, and then the wrongful opening of the gate by an unauthorized person. Had not these three things conjoined, the court could not say that the plaintiff would have been harmed.

Upon the trial now under review the plaintiff claimed that the defendant was negligent in not closing the gangway before the boat started, as it had ample means for doing so but failed to use them. He also claimed that in starting the boat before the gangway was closed the servants of defendant disobeyed its standing orders, which he stated were to close and secure the gangway as soon as the gang-plank was hauled and before the boat started. The plaintiff’s counsel argues that there is a difference which is most material between the fastening of the gate itself before the boat started and putting in .place the rail (which was put on top of the .gate) and stanchions before such starting. It was held on the first appeal that defendant was not chargeable with negligence in not putting in place the rail and stanchions before the boat started. Judge Folger said that experience had not shown that danger was to be apprehended from that source, or that it was necessary to be guarded against. 68 N. Y., 306, at 313.

In order to see precisely what the case now before us is, it is best to take some extracts from the evidence on the part of the plaintiff as to what was the condition of things - when .the accident occurred. I will take the evidence of the plaintiff and his friend Schwab, who accompanied him, which is as favorable an account for him on the facts as can be found in the record.

Having approached the boat, which was lying at its slip in Hew. York city, a short time prior to its departure on the 8th of September, 1873, at six o’clock p. x, the- plaintiff and his friend boarded it on its starboard side a little aft the wheel house, the boat heading towards the west. They went from the dock down on the boat by means of a gang-plank about the width of the gangway opening, and which plank was guarded with rails on each side. .Continuing, the plaintiff says : “ I went on the boat and turned around, took my handkerchief out of my pocket and waved it to my friends on the pier. Just at that time, I think, the-boat started. I heard an order to castoff, or throw off the line, something like that; I did not understand about it, and the . boat started. Just at that instant somebody from back in the crowd, back in the boat, came running through the crowd hallooing and coming pretty fast, rushing against people and coming towards the edge of the boat to get off. The boat was going, had gone quite a distance, probably twenty-five feet. It had swung out away from the pier twelve or fifteen feet, I should think. This man jumped out of sight overboard. There was a ■man that was there by the gate. The people hallooed 1 man overboard,’ and immediately there was a big rush that pushed seven or eight of us .in immediately. I heard the order to haul in the gang-plank. I didn’t understand whether it was -to haul in or haul out. I know it was swung out on the pier. They raised the end on the boat and swung it in, just raised it up and swung it back on the pier. Just at the time the hawser was cast off, going on at the same time, there was men right there had the big lines in their hands then, right at the edge of the gangway. That was at the same time the hawser was being hauled up. They swung it up and commenced hauling up the hawser at the same time. The boat was,going. The mate had the gate. Mr. Mull was the mate. At the time this man came through, Mr. Mull was standing partly in front of the gangway opening, at the post this gate sets on. He had the .gate. I supposed he was in the act of putting it in. He had the gate in his hand, partly in front of the gangway opening; as this man came through he partly turned; he had hold of the gate some way with both hands; this man passed right by through there along the boat, outside of this guard, and stepped right along on that and jumped. I was pushed overboard, right there There was no gate in. I didn’t see the gate after that; it was knocked out of the way, at least it was not there when I got to it.”

The testimony of Schwab is substantially corroborative of "this. He says the gate had not been closed before the accident happened; “ there was a man had hold of the gate. He had it in his hand and in the act of putting it in. The man was in the set of putting the gate in, about as the crowd came and pushed .along.”

As to the alleged standing order of the defendant not to start the boat until the gangway had been closed and secured after the hauling in of the gang-plank, the evidence does not come up "to the allegation. The evidence of Kellar, a deck-hand, was that "the orders were to close the gangway as soon as the plank was hauled. He says nothing as to this being done before the boat started. He also says it would take two or three minutes to put in the gate and secure the gateway opening. Mr. Mull, the mate, said there was a general standing order to close the gate immediately upon hauling the gang-plank. Mr. Scoville was clerk on board the boat, whose duty kept him in the office where he sold tickets, and he had nothing to do with the running of the boat. He was called by the defendant, and upon his cross-examination by plaintiff’s counsel he said that he had always understood that one of the standing orders on the boat was that the gate must be closed and secured before the boat started, although he admitted he had never heard the order given.

There cannot be said to be any proof that the order was to close and secure the gate before the steamer started.

Now upon this evidence, which is at least as favorable to the plaintiff as any in the case, we are bound to say there is no proof of negligence on the part of the defendant

It appears that as soon as the signal was given the gang-plank was hauled up, and the boat started. Immediately upon the hauling up of the gang-plank, the mate started for the gate and brought it to the gangway opening, and was in the very act of setting it in position when the man brushed by him and jumped At this "time the boat had only moved thirty-five or forty feet along the pier, and was about twelve or fifteen feet away from it, and yet in "that brief period the mate had almost accomplished a secure shutting of the gate.. To say that the boat should not have been allowed to move a foot from the dock until this gate had been thus ■securely fastened, and the rail and stanchions placed in position, is to decide the matter in view of the facts which subsequently occurred, and not from the circumstances existing prior thereto. It was an accident which could not, as I think, have been reasonably ■anticipated. The attempt of a belated man to jump from the boat to the wharf immediately after the starting of the boat, his failure to reach the dock, and his consequent falling in the water, the cry of “man overboard,” the instantaneous rush of a crowd of ordinary passengers towards the side of the boat whence the cry proceeded, and the shoving of the plaintiff overboard, altogether form such an extraordinary, and, therefore, unheard of combinatian of circumstances, that the failure to foresee their possibility, and to guard against their happening cannot in any fair or proper view of the subject be called negligence. The mere fact that an accident of the kind has never before happened may not be enough to avert the charge of negligence. If it might reasonably have been anticipated, or if its occurrence would not, in the minds of reasonable men, be in the highest- degree unlikely, if things were left in the condition then presented to -them, the charge of negligence might be a proper one for the jury to pass upon. Dougan v. Transportation Co., 56 N. Y., 1; Hubbell v. City of Yonkers, 104 id., 434; 5 N. Y. State Rep., 730.

But here is a case where an accident of the nature proved not only never happened before, but it resulted from causes which no human being up to that time could reasonably expect to concur.

In this view it is wholly immaterial whether the mate, when he heard the voice and turned around, did so for the purpose of letting the man through the opening, or only for the purpose of seeing what was being done with a view to perform his own duty nlore intelligently. It was not to be anticipated that the man would make an ineffectual effort to jump to the dock and fall in the water, and that then all the other circumstances should occur which resulted in shoving the plaintiff overboard.

The accident, upon the proof in the case, looking at it in the most favorable light for the plaintiff, was the result of causes for whose existence no one was legally responsible.

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

All concur, except Ruger, Oh. J., dissenting.


author: . Pratt, J.

text:
    Mary P. Taggart, P’lff, v. Mary G. Rodgers et al., Def’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    Redemption—By wife of mortgagor not served in foreclosure.
    Plaintiff joined with her husband in a mortgage on his property, which was foreclosed, but she was not served with process in the action. Thereafter and during the life of her husband, she brought this action to redeem. Judgment was rendered denying a redemption in case plaintiff settled or released plaintiff’s dower in the premises. Held, that this was as favorable to the plaintiff as the facts warranted.
    Motion for a new trial under § 1001 of the Code.
    In 1874 James Taggart, the husband of the plaintiff, being the owner of the fee of a house and lot on Willow street, in the city of Brooklyn, executed a mortgage thereof to Sarah J. Nagle. Default having been made in the payment of the interest thereof Mrs. Nagle brought an action of foreclosure, making the plaintiff a party defendant. The plaintiff however was never served with the summons or complaint. Judgment was finally entered in favor of Mrs. Nagle and the premises were publicly sold by the sheriff and • bid in by the defendant John B. Wade. Subsequently he conveyed to the defendant Mary Gr. Rodgers. Plaintiff demanded , the possession of the premises from the defendant, Mrs, Rodgers, and that she account for the profits thereof while in her possession and also tendered and offered to pay what, upon such accounting, should remain due of the principal and interest of said mortgage, and upon her refusal this action was brought to redeem the property.
    The following is the opinion at special term:
    Cullen, J.—I shall assume that the inchoate right of dower of the plaintiff is a sufficient present estate of interest in the premises sold under foreclosure to entitle her to redeem. It was so held by the special term on the former trial and the general term agreed with the special term on this question. The only question, therefore, open before me, is the nature and terms of the redemption to be granted. The foreclosure was not, void, for the owner of the equity of redemption was made a party to it and his estate cut off by the decree and sale. The plaintiff was-not affected by the foreclosure, for she was not served with the process. Her right to redeem rests in equity upon the principle that her rights should not (be) cut off without her day in court. But it seems plain on principle that equity will go only to the extent of protecting the plaintiff’s right and not give her any greater right by reason of the irregular foreclosure than she had before the foreclosure. The rule that a party must redeem the entire premises from the lien of the whole mortgage is primarily for the benefit of the mortgagee, and is not of universal application. Here the plaintiff had, before the foreclosure, an inchoate right of dower in the premises. She seeks by redemption to acquire the fee of the premises. It is not only possible, but in many cases probable, that on account of the enhancement of the value of the premises the purchaser, treating him as a mortgagee in possession, may have been entirely repaid the mortgage debt out of the rents and profits. It may be so in this case. Is the property to be then conveyed to plaintiff without consideration ? Conceding that the defective foreclosure no wise impaired her rights, on what principle of law or equity can it be contended that a defect in a suit to which she was not a party operated to convey to the plaintiff an estate she never before possessed ? In case there should prove something still unpaid on the mortgage, as long as such sum in addition to the value of the estate or lien sought to be protected by the redemption is less than the value of the premises, the injustice of a general redemption still -exists. The difference between the two cases is in degree, not in kind. The foreclosure suit passed to the defendant the title of all parties in interest, save that of the plaintiff. Of the title so acquired by defendant she should not be deprived, if she is willing to release the estate of the plaintiff from the lien of the mortgage, or to satisfy the plaintiff’s claim. Thus the plaintiffs rights will be protected and the defendant will not be deprived of her purchase.
    I am not without authority to justify this course. In Boqut v. Coburn, 27 Barb., 230, the plaintiff, a subsequent purchaser of a part of the mortgaged premises, had been omitted from the foreclosure suit and brought the action to redeem. The judgment entered gave the defendant the right, if he so elected, to retain the residue of the lands upon his releasing the plaintiff’s lands from the lien o_ his mortgage. As the defendant alone appealed, the discussion in the opinion, as to how a right of redemption should be-had, may be said to be obiter. But granting that the principle-enunciated by the court has not the weight of authority, it seems, to me unassailable in law or logic.
    Judgment should be entered that a redemption be denied, upon defendant's releasing plaintiff’s right of dower from the mortgage under which her title is derived, or paying the present value of plaintiff’s inchoate right (as to these alternatives the plaintiff is to have the right of election) ; if defendant fails to so satisfy or release plaintiff’s dower, then that plaintiff may redeem the premises upon paying the amount due on the mortgage, after charging defendant with the rents and profits, and crediting her with payments and disbursements properly made for the benefit of the premises, costs to neither party.

      Clifford A. H. Bartlett, for pl’ff; Martin & Smith (Cep. A. Strong, of counsel), for def’ts.
   . Pratt, J.

This a motion for a new trial under § 1001, Code of Civil.Procedure.

It appears that prior to 1874, James Taggart, the husband of the plaintiff, was the owner of a house and lot in Brooklyn and she joined with her husband in a mortgage for a valid consideration which was afterwards foreclosed and sold under such decree in 1877, and defendant’s grantor became the purchaser.

The plaintiff was never served in the foreclosure suit although she was made a party.

The plaintiff now seeks to redeem the premises so sold by paying the judgment in the foreclosure suit after charging the defendant with the rents and profits since she entered into possession.

The question whether the plaintiff can make any valid claim, her husband being still alive and her claim being solely based upon an inchoate right of dower, is not raised upon this appeal, as the court at special term held “ the plaintiff’s inchoate right of dower gave her the right to redeem said mortgaged premises ” and there is no appeal on the part of the defendant.

The court, however, while holding that plaintiff had a right to-redeem, in effect restricted the recovery to her dower right

The case stands precisely as if James Taggart had deeded the property to the defendant, his wife not joining in the deed and releasing her inchoate right of dower; in other, words, her rights, have not been affected to her prejudice in the least degree.

The defendant has lawfully acquired the fee of the land subject to the incumbrance of the plaintiff’s inchoate right of dower, and the question arises as to which party has the right, one to discharge an incumbrance, or the qther to redeem under the facts disclosed in the record

In case of the death of her husband she could claim a life estate in one-third of the premises; is it reasonable that she can claim now upon an inchoate right that the defendant shall sell her the whole premises with improvements ?

In the former case the defendant would be allowed to retain the property and pay a fixed sum for dower; why cannot equity permit her now to discharge this incumbrance upon just principles?

We think the judgment rendered at special term was as favorable to the plaintiff as the facts warranted. ,

The opinion rendered at the trial discusses with great force the reasons for the judgment as rendered, and the position seems in-assailable.

The cases cited by plaintiff do not controvert the principles laid lawn in the decision at special term. It is conceded that the husland is bound by the foreclosure judgment, and has no right to redeem. How by this judgment the plaintiff is allowed to redeem all the rights she ever had in the premises. In fact there is no necessity for redemption, for her rights have never been invaded bj the defendants nor put in jeopardy by the foreclosure proceeding.

7be same principle of redemption was applied in the case of Boc^t v. Coburn, 27 Barb., 280, and has never been overruled.

Notion for new trial denied, with costs.

Bernard, P. J., and Dykman, J., concur.


author: Pratt, J.

text:
    Edvard McSorley, Resp’t, v. Brian G. Hughes et al., Impl’d, App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    1. Sfecibc performance—Contract to reconvey—Tender.
    Plai tiff desiring a loan to settle a foreclosure action, defendant Hughes advantd the amount to him on a conveyance of real estate, giving back an agrément to reconvey upon payment, on or before the 30th of June, of the aipunt advanced and certain judgments on the property. Plaintiff, by the dytii of his attorney, was prevented from making the payments within th time specified, but the day before the time specified defendant told him t go on and pay the judgments and see him again. Plaintiff procured %ney, paid the judgments and made a tender to defendant in August. 1 an action for specific performance of the agreement, Held, that if deferant desired to cut off plaintiff’s right to redeem he should have filed a ip for that purp se; and that not having done so, the tender was in time aj should have been accepted and the property reconveyed.
    2. Evidence—Eq?ty.
    In equity actng tjle improper reception of evidence is not ground for reversal.
    Appeal from jdgment of Richmond county court in favor of plaintiff.
    Action for specif performance of a contract relating to real property. The facV sufficiently appear in the opinion of the county judge, which'ffibws:
    Stephens, J.—Thisg an action brought by the plaintiff against the defendant Brian «"Hughes and wife for the specific performance of a contract rnade.y ancj between the plaintiff and said defendant Brian G-. Hughe^n -the 22d day of December, 1886, and for a conveyance of certa\ premises situate in the village of Port Richmond, in the county Richmond, to the plaintiff by said Brian Gr. Hughes and wife^d for other relief.
    The defendants answer i%at a law day was fixed by said contract, to wit, the 30th day of June, 1887, on or before which day. said contract was to be performed on the part of the plaintiff, and deny that the time for the performance of said contract was ever extended. On the other hand, the plaintiff claims that such time was extended by the defendant Brian Gr. Hughes.
    By the evidence offered upon the trial it appears that the plaintiff, Edward McSorley, prior to December 22, 1886, was the owner, in fee simple of certain premises situate at Port Eichmond, Staten Island, the value of which at that time, as testified to by Alfred Z. Eoss, a recognized expert upon the values of real estate or Staten Island, was $18,000. These premises were encumberel by a mortgage to secure the payment of the sum of $8,000 to tic Mutual Life Insurance Company of the city of New York, upen which was due the sum of $400 for interest. • There were alo docketed in the office of the clerk of Eichmond county th'ee judgments against said McSorley for the respective sums of $697.01, $1,729.24 and $1,729.24. A foreclosure of said mortgage had been begun and some expenses had accrued thereipon and there were some taxes due upon the premises anounthg together, including the interest due upon said mortgage ($4(0), to the sum of $1,167.24, making the total amount of the liens gainst said premises the sum of $13,322.73, and leaving at that <me an equity in said premises of $4.777.27.
    On the 22d day of December, 1886, McSorley conv^ed said premises to the defendant Brian Gr. Hughes by a warrpty deed and on the same day a contract was made and executd by and between said Hughes and McSorley, "whereby it was aTeed that McSorley, on or before the 30th day of June, 1887, w¿ to pay to Hughes in cash the sum of $1,392.24,being the amount (theseveral liens before stated for interest, taxes, costs of foreclcure, to wit: $1,167.24 and $225 bonus or brokerage, and also tcpay the three several judgments before mentioned, whereupon sal Hughes was to execute and deliver to said McSorley a bargainand sale deed of said premises free from all incumbrances excfet the mortgage for $8,000 as aforesaid.
    McSorley did not receive personally any portD of the sum of $1,392.24. Whatever was paid out of it was pal by Hughes himself. Hughes entered into possession of the p-Jnises on the first day of January, 1887, and has continued in pension thereof ever since, receiving the rents therefrom.
    McSorley testified that he was about nego^ting a loan to pay Hughes the amount called for in the ccorach through a Mr. Hall, an attorney, in May, 1887, and so sta ^ to Hughes and told him that he “wanted time for about a weh probably a week or two,” and Hughes said, “You can go orand get the loan and come back again, and I will see you.” ^r. Hall died on the 2d ' day of June, 1887, so that the negotis011 fed through. McSorley then applied to a Dr. Groff for a In ^or the same purpose. He then testified that about the 28tlW Jruie, 1887, he and Dr. Groff went to Hughes’ office and t1 doctor explained to him (Hughes) that he was getting the ln through to pay off these judgments, and he wanted a littlfe ore time; he told the doctor to “go on and execute the loan and pay off the judgments, and come and see him; that he would extend the time.”
    Dr. Cleveland W. Goff testified: “ On the 28th of June, a little "before 12" o’clock, I went up with Mr. McSorley to Mr. Hughes’ office on Centre street. "We met Mr. Hughes in his office, or store-room. I said, 1 Mr. Hughes, I came here with McSorley. Mr. Hall is dead. The expiration of the time to redeem some property is about around as I understand; it is impossible for inc to get the loan for him to pay off these judgments. within the time without great loss to Mr. McSorley.’ I stated to him that I had been employed by Mr. McSorley and was trying to procure him this loan. I told Mr. Hughes that I was trying to get the loan on the whole property. He told me to go along and mike my loan, pay off the judgments against it, and then he would come around and I could see him; that all he wanted was legil interest. He said, * Go on, make your loan.’ He referred meta his attorney, Mr. McAdam. I went and saw Mr. McAdam at lys office. He told me that they were about commencing a . suit p sell it out, but, if I was sure abont the loan, he would wait. I told him I had been working for two weeks; that I was sure d, the money.” Dr. Goff testified that he saw Hughes frequently after the 30th of June, 1887, and that “he invariably told me that he would return the property as soon as the judgments were pad off.” That subsequently he made a tender to Hughes of $l,40f (about the 3rd or 4th of August), the full amount stipulated,to be paid in cash, to wit: two five hundred dollar gold certificate!, four one hundred dollar bills, and the balance in silver. Tka\on the 5th of August, 1887, he paid the three judgments, whih were duly satisfied of record, in the office of the clerk of thejounty of Eichmond, which fact also appears by the certificates <\ the clerk of the county of Eichmond offered in evidence; th^ he informed Hughes that he had paid the judgments, and agin tendered him the amount to be paid in cash, which coveredfil the claims that Hughes had made. He further testified that Hghes told him “he got $225 for loaning the money.” That Ven he demanded from Hughes the deed of the premises, and thi^ke promised he would give it to him.
    The testimony f the defendant Hughes flatly contradicts the testimony of Dr. h>ff, so far as the same relates to an extension of the time within foich the contract was to be performed, and also as to a tender o, foe amount to be paid in cash; also, as to-his promise to reconW foe premises after the 30th of June, 1887, although he admits tKt p>r. Goff called upon him several times in regard to the matte! phe question now is, to whom credence is to be given. It is ai-,nfoSputed fact that the defendant Hughes is a sharp and shrewd Wn¡ whereas foe plaintiff McSorley is a dullard, and a ready victi. for such a person as Hughes to fall in with. We need go no fufler to confirm this fact than the testimony of the two themsehg given -upon the trial of this case. McSorley was sadly_ presse\for money, and, without fully realizing the force of his act, ^Veyed his property to Hughes, and then made and executed the fo question in order to tide Mm over his immediate embarrassment. Was there a distinct understanding by. both, parties that if the . contract was not fulfilled to the very letter that McSorley should be deprived of his property? On the part of Hughes, yes, but on the part of McSorley, clearly no. Had McSorley been left alone, such undoubtedly would have been the result; Fortunately for him, however, Dr. Goff came to his aid. His testimony is strong and emphatic; and, taking that in connection with the testimony of McSorley himself, I think the weight of evidence is in favor of the plaintiff; and, with this view of tie case, I think it is fair to conclude that the defendant agreed to extend the time within which the contract might be performid. This was unmistakably the understanding on the part of the plaintiff and Dr. Goff, else why did they go on and pay the judgments specified in the contracts, amounting to $4,155.49, thereby increasing the equity in the premises to $8,707.76, which Hughes was to acquire for the paltry sum of $1,392.24 ? Had an action been brought in a court of equity to declare the deed iron Mc-Sorley to Hughes to be a mortgage and only given as secuity for a loan, upon the evidence as here adduced there is no doubt but that a decree accordingly would have been granted. Thf plaintiff, however1, sought his remedy in the county court, uncir § 340 of the Code of Civil Procedure, and there is no questjm about the jurisdiction of the court to, enforce this contract. This right has been recognized and affirmed by the supreme cour, holding that in such a case the county court has the same equi*ble power as the supreme court. See Williston v. Williston, 41 Barb., 635.
    This contract, in its inception, was usurious, as ifis clear that the defendant Hughes expected to receive the am of $225 for an advance of $1,167.24, but the plaintiff waled the usury, • as he had a right to do, and asks to show the transction, and demands the performance of his contract. He had th right to show that it was not the intention of the parties at thftime of the execution of the contract that he should forfeit hi property, and I think the facts do show this. ¡

    While it is true that paroi evidence is not cmpetent to vary a contract in writing, nevertheless it is always ompetent to show what the true contract was; and, evidence o tbe whole transaction being given, the court will declare the ontract and enforce it. See Medlér v. Darrin, 50 N. Y., 437; ,soi Horn v. Keteltas, 46 id., 605.
    It is competent for the parties to a written contract, even though under seal, to waive or extend time of performance by paroi. Esmond v. Van Benschoten, lf Barb., 366; also Stone v. Sprague, 20 id., 509.
    A new consideration is not necesa’7 to give validity to an agreement to extend the time; the wa3r i® enough for that purpose. The effect of such enlargement® *9 substitute and to adopt the extended time for the time spec^ i11 *he original contract. It then stands as a new agreement herein the mutual promises furnish a good consideration. Gla' v- Dales, 20 Barb., 42. ^
    ^ I think it is the duty of the cc'*' *° sustain the plaintiff in his facts. Let a decree be entered that the plaintiff pay to the defendant, Brian Gr. Hughes, the sum of $1,392.24, with lawful interest thereon from the 30th day of June, 1887, within sixty days after the entry of judgment in this action, and directing a reference to settle and determine the amount due between the parties by reason of the rents and profits arising out of the premises in question, for which judgment shall be entered as found by the report of the referee; and further directing that upon the default of the payment by the plaintiff to the defendant, Brian Gr. Hughes, of said sum of $1,392.24, with interest as aforesaid, within said sixty days, that he be forever barred from the privilege of performing said contract on his part.

      Hays, Qreenbaum & Sehram, for app’lts; Lyman & Settel, for resp’t.
   Pratt, J.

The testimony fully sustains the findings of fact. The transaction was clearly a loan of money. The papers executed must be regarded as security for a loan.

At the expiration of the time of payment defendant, if he desired to cut off plaintiff’s right to redeem, should have filed a bill for that purpose. Hot having done so, plaintiff’s tender was made in due time and should have been accepted and the property re-conveyed.

Some exceptions were taken to the admission of testimony, and it is urged that a new trial should be. granted upon that ground. , But that has never been the practice in equity.

Under the ancient practice testimony in equity was taken before an examiner, who took all that was offered and the chancellor decided upon the case so brought before him. Under that system there could not well be any question" as to the proper reception of testimony. The judge was supposed to know what testimony was proper and what should be disregarded, and the recent practice of taking testimony in equity cases before the court has not so changed the rule as to make the improper reception of evidence a ground of reversal. Forrest v. Forrest, 25 N. Y., 510.

The proofs abundantly sustain the judgment, which must be affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


text:
    Ella S. Hadley, App’lt, v. Mary Jane Reed, Adm’rx, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

      1. Bills and notes—Consideration.
    Natural love and affection do not constitute a sufficient consideration to support a promissory note; neither does the fact that the note was given to equalize the distribution of the-maker’s estate among her children furnish one. u

    2. Same.
    Defendant’s intestate, who was a married woman, in 1883 gave the note in suit to plaintiff, her daughter, and about the same time distributed money to her other children. It was found that such arrangement was made for the purpose of distributing her property among the children, with the consent of all, but all were not present at any time when it was talked over and there was no proof of anjr act or declaration on the part of defendant or the other children by which plaintiff could have been, misled. Held, that the note'was without consideration and that defendant was not estopped from denying its validity.
    Appeal from judgment dismissing complaint
    This is an action brought by one of six children against her sister as the administratrix of the estate of their mother, Jane Lu Gar, deceased, on a demand note made by the mother, to the order of the plaintiff, for $1,000 and interest, dated June 12, 1888.
    The court found that the note was given under the following circumstances: On June 12, 1888, Jane Lu Gar, the defendant’s intestate, desired to make distribution of her property among her six children, to wit: Mrs. Ella S. Hadley, the plaintiff, Mrs. Mary Jane Reed, the defendant, Mrs. Estelle West, John B. Lu Gar,. Mrs. W. C. Moore and Mrs. Norton. It was agreed that a portion of her property should be divided among her said children as follows: To her daughter, the plaintiff, Mrs. Hadley, $1,500 ; to her daughter, the defendant, Mary Jane Reed, $1,500 ; to her son, John B. Lu Gar, $1,500; to her daughter, Mrs. Norton, $1,500, and to her daughter, Mrs. Estelle West, $1,400. This distribution was with the consent, knowledge and acquiescence of all of said children. It was agreed that all were to receive their respective shares in cash, except the plaintiff, who consented to accept $500 in cash, and to take her mother’s promissory note for $1,000, the remainder of her share. This agreement was carried out, the cash paid, and the note given accordingly. Upon the note thus given and accepted, this action is brought The note has not been paid, though payment thereof has been demanded of the administratrix.
    Jane Lu Gar died August 2, 1885, intestate. Her husband was her administrator. But he died, and plaintiff was. appointed her administratrix January 18, 1888.
    . The court also found that said note was a gift to plaintiff; that moneys were paid to her by intestate at that time, and afterwards ; that no consideration was given for such note, and dismissed the complaint.

      Martin J. Keogh, for appl’t; John Chetwood, for resp’t.
   Pratt, J.

The law seems to be firmly settled that natural love and affection do not constitute a sufficient consideration to support, an executory contract. Whitaker v. Whitaker, 52 N. Y., 372; Fink v. Cox, Executor, 18 Johns., 145 Harris v. Clark, 3 N. Y., 93.

Starting from this point, the question arises whether there is anything to take the case from under this rule. The counsel for the appellant claims that the note was given to equalize the distribution of the maker’s estate among her children. But this would not be a sufficient consideration. Parish v. Stone, 14 Pick., Mass., 198.

Neither has the claim that the defendant and the other heirs are estopped from denying the validity of the note any merit.

The note was given by the maker of her own free will, and the consent of her other children was neither necessary, or asked or given; besides all the children were not present at any one time when the matter was talked over, and there is no proof of any act or declaration on the part of the defendant or any of her sisters which could be said to have misled the plaintiff. Again, the maker being a married woman at the inception of the note, there is no proof that she was carrying on a separate business, or that it was made for the benefit of her separate estate, or that it was for property furnished at the time. The note, therefore, being without consideration, was void. Linderman v. Farquharson, 101 N. Y., 434; Saratoga County Bank v. Pruyn, 90 id., 254.

The judgment must be affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.