text:
    THE MAYOR, Etc., OF THE CITY OF NEW YORK, Respondents v. ANDREW J. CONSTANTINE, et al., Appellants.

      Undertaking to pay to the commissioners of charities and correction a certain sum weekly for the support of a family for one year.

    This action was tried before a judge of this court, without a jury, and judgment was entered upon his findings of fact and conclusions of law. In such a case there is no jurisdiction to entertain a motion for a new trial upon the minutes of the judge under section 999 of the Code. That section applies only to jury trials.
    I-Ield, that the motion for a new trial, which was made in the court below upon all the grounds stated in section 999, was, therefore, properly denied, and the order is now affirmed.
    It appeared upon the trial that in February, 1887, the same plaintiffs brought an action against the same defendants upon the same recognizance or undertaking, and for a breach thereof in the district court of the first judicial district of the city of New York. That Andrew J. Constantine answered in that action and set up several defences, and upon a trial of the issues raised by the findings in that action a general judgment was rendered in favor of defendants, and upon an appeal from said judgment to the general term of the court of Common Pleas the said judgment was, on or about October 29, 1887, in all respects affirmed. It is well settled that only one recovery upon the recognizance or undertaking may he had upon a refusal to fulfil its conditions at any time after it has been executed, and that the whole amount is forfeited upon a single breach. Held, that the judgment referred to, in the absence of proof that it was given for a specific reason which preserved the right to bring another action, constitutes a former adjudication, and as such, it is conclusive between the parties on every question caused by it, and is a complete bar to the present action, at least,-so far as the -appellant now before the court is concerned.
    Judgment reversed and a new trial ordered.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.

      Decided May 2, 1892.

      Appeal from judgment and from order denying motion for new trial.

      John D. Quincy, attorney and of counsel, for appellants, argued :—
    The judgment for defendant in the district court is res adjudicaba as to the issues herein and a bar to this action. The return on appeal shows that the case was heard on the 26th day of May, 1887, upon the proofs given by both parties that the case was closed, and that thereupon the justice, on the 10th day of June, 1887, rendered judgment in favor of the defendant and against the plaintiff. This was a final determination upon the merits, a bar to another action and a judgment for which an appeal will lie. Blair v. Bartlett, 75 N. Y., 150; Blum v. Hartman, 3 Daly, 47. Whatever was requisite to be proved and established as facts by plaintiff in order to obtain judgment is, so long as the judgment remains unreversed, res adjudicaba between the parties and conclusive upon them, and the judgment is conclusive on every question that might have been litigated. Blair v. Bartlett, supra. An adjudication in another action between the same parties upon the same claim or demand is conclusive not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. The question is settled forever between them by that judgment. It cannot be opened and litigated again by either of them- in another action. Blair v. Bartlett, supra; Hallock v. Dominy, 69 N. Y., 238.

      Louis Hanneman, corporation attorney, and Herman Stiefel of counsel, for respondent, argued:—
    As to the question of a former judgment in the district court. The return on appeal shows that the proofs given by both parties before the justice of the district court was such complete and positive proof as to render a judgment in favor of the plaintiff instead of in favor of the defendant. The justice in rendering the judgment must have been mistaken in the rendition thereof, and therefore where it appears from the return and from the testimony taken in the former litigation that the judgment should have been in favor of the plaintiff, that it will not be considered res adjudicata in the case bar, for the proof and facts established by the plaintiff were such as to leave no doubt in the mind of any court that the judgment rendered by the justice in the district court was error and should have been in favor of the plaintiff. The justice in the district court writing no opinion, and therefore could not gather upon what ground he rendered the decision in favor of the defend? ant. Taking all the testimony and the proof as submitted there can be no doubt that the judgment was error, and therefore this present action is not res adjudicata. Chapman v. Rollins, 78 N. Y., 311.
   By the Court.—Freedman, J.

The issues in this case were tried by a judge of this court without a jury and he filed his decision containing his findings of fact and conclusions of law and the direction for judgment, and judgment was entered accordingly. In such a case there is no jurisdiction to entertain a motion for a new trial upon the minutes of the judge under section 999 of the Code. That section applies only to jury trials. The motion for a new trial which was made upon all the grounds stated in said section, was, therefore, properly denied, irrespective of the particular reason which may have influenced the learned judge.

Upon the appeal from the judgment various reasons have been assigned for reversal, but it is only necessary to notice one of them, because it is fatal. The printed case leaves it somewhat uncertain whether both defendants appeal, or only the defendant Andrew J. Constantine, but from the points submitted it clearly appears that the appeal is prosecuted by him alone. As to him the former judgment of the district court which was in his favor, and which he pleaded herein as a defence, is a bar to this action.

The present action was brought in December, 1887, by the above named plaintiff against the defendant Andrew J. Constantine as surety upon a recognizance or undertaking given by the defendant Thomas S. Constantine upon his conviction before a police justice of this city of being a disorderly person for neglecting to support his wife and children. The recognizance or undertaking was given under the provisions of the Code of Criminal Procedure, and the condition was that Thomas S. Constantine should be of good behavior for one year and should pay ten dollars weekly to the commissioners of public charities and correction for the support and maintenance of his family. The breach alleged is that Thomas S. Constantine had not. paid to said commissioners the ten dollars per week from the giving of the recognizance or undertaking until the expiration of the year therein mentioned.

Upon the trial it was shown that, in February, 1887, the same plaintiff brought an action against the same defendants upon the same recognizance or undertaking, and for a breach thereof, in the district court in the city of New York for the third judicial district, that Andrew J. Constantine answered and set up various defences, that, upon a trial of the issues raised by the pleadings in that action, a general judgment in favor of said defendant was r'endered on or about June 10,1887, and that upon an appeal by the plaintiff from said judgment to the general term of the Court of Common Pleas, the said judgment was, on or about October 29, 1887, in all respects affirmed.

As it seems to be well settled that there can be but one recovery upon the recognizance or undertaking sued upon, that a recovery may be had upon refusal to support at any time after the recognizance or undertaking has been given, and that the whole amount is forfeited upon a single breach, the judgment referred to, in the absence of proof that it was given for a specific reason which preserved the right to bring another action, constitutes a former adjudication, and, as such, it is conclusive between the parties on every question covered hy it, and a complete bar to the present action, at least so far as the appellant now before the court is concerned.

Moreover, it may well be doubted whether upon the last trial the plaintiff sufficiently established a breach of the condition within the rule laid down in People v. Pettit, 74 N. Y., 320.

The order denying defendants’ motion for a new trial should be affirmed, but the judgment should be reversed and a new trial ordered, with costs to the appellant, Andrew J. Constantine, to abide the event.

Sedgwick, Ch. J., and McAdam, J., concurred.


source: Caselaw Access Project

author: By the Court.—Freedman, J.

license: Public Domain

text:
    JULIUS LEHMAN, as Receiver, etc., Respondent v. GEORGE F. BENTLEY, Appellant.

      Assignments or conveyances with intent to hinder, delay or defraud creditors.

    Action to set aside a bill of sale and an assignment of accounts as fraudulent and void as respects judgment creditors, represented by plaintiff as receiver.

      Held, on appeal, that the evidence amply sustains the findings of fact made by the trial judge, and the judgment creditors represented by the plaintiff are not estopped from maintaining this action ; and the legal conclusions reached are the logical and inevitable result. Even in the absence of an actual intent to hinder, delay or defraud creditors, a conveyance or transfer of property, the only consideration of which is an agreement on the part of the transferee that he will apply the proceeds in payment of the debts of the transferor, is void, unless the same is executed in the manner prescribed for a general assignment, and a conveyance in consideration of future services of any kind is also void as against then existing creditors.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided May 2, 1892.
    Appeal by defendant from a judgment entered upon the decision of a judge at the equity term.

      John B. Uhle, attorney and of counsel, for appellant, argued:—
    In proceedings supplementary to their execution, on the fifth day of February, 1891, or two years and thirty-six days after the insolvency of Sterling & Wilkinson, Lucius Hart & Co. procured the appointment of the present plaintiff as receiver of Sterling & Wilkinson. Admitting, as far as necessary, the application of the general principle, that a receiver of an insolvent unites in himself the rights of both debtor and the creditors, to such a degree that he may assert a claim as representative of the creditors which he might not as representative of the insolvent, and therefore disaffirm dealings of the debtor which have been in fraud of the creditors— Pittsburg Carbon Co., Lmtd., v. McMillin, 119 N. Y., 46; per Andrews, J., p. 53. Yet a receiver appointed in a proceeding supplemental to one execution, with no extension to the judgment of any other creditor, stands in no better plight than the creditors upon whose judgment he was appointed. He is privy with Lucius Hart & Co. Tinkham v. Borst, 24 How., 246. That is, the right of the receiver to recover in this action does not spring from the debtor, for as to the debtor, the transfer is valid, but from the fraud perpetrated on the creditor. Hence the right of the receiver is no greater than because the same as that of the creditor, and is subject to the adverse rights (whatever these may be) of the transferee, so that an estoppel against the creditor may be availed by the alleged fraudulent transferee to defeat the special receiver’s action. Bostwick v. Menck, 40 N. Y., 383, 384-7; per Grover, J. Affirmed as to the power of the receiver as late as Haynes, et al., v. Brooks, et al., 116 N. Y., 491. Standing in no better position than Lucius Hart & Co. and subject therefore to the same estoppel as that firm, who may be regarded as his principals, the important question is what was proved by the receiver in his suit? There was no necessity to prove the assignment of the accounts and the delivery of the bill of sale. The denials of the answer were directed entirely to the allegations of intent to hinder, delay and defraud the creditors of Sterling & Wilkinson, and of the defendant’s knowledge of that intent. In the efforts to prove his allegations, the plaintiff called Mr. Comstock, an indifferent witness, and the defendant. Their testimony established the controlling facts that Mr. Comstock planned the dissolution of Sterling & Wilkinson, procured the defendant to represent that firm while he represented the entire number of known creditors, directed the making of the bill of sale and assignment of accounts, and in the subsequent sheriff’s sale and replevin proceedings not only represented Lucius Hart & Co., but was actually assisted by their private counsel, now appearing in this action for them receiver. These facts constitute an estoppel en pais ; for since at least 1837, to stand by at a sheriff’s sale has estopped the silent party from proving any facts to the contrary of his inaction. Pickard v. Sears, 6 Adolphus & Ellis, 469; Dezell v. Odell, 3 Hill, 215, 219. Such facts as these go to the original cause of action [the hill of sale and the replevin suit under it], and arising during the plaintiff’s proof, must be observed by the trial term, without pleading on the defendant’s part. Rogers v. King, 66 Barb., 495. Of course, Lucius Hart & Co., and their attorneys, George C. Comstock and Blandy & Hatch and Hatch & Warren and Mr. Peyton, all stand on one level. Such an elementary fact was recently recognized in Bolt v. Hauser, 10 N. Y. Supp., 397, 400; affirmed 11 N. Y. Supplem., 366; S. C., 57 Hun, 567; Hawley v. Griswold, 42 Barb., 18, 23. And it is of no importance whatever, whether express language or open and general conduct cause the estoppel. Calaman v. McClure, 47 Barb., 206, per Miller, J. The attorney for Lucius Hart & Co. allowed the discontinuance of the replevin proceedings by which the goods mentioned in the bill of sale were obtained by the defendant, by virtue of that bill of sale. This, in effect, was a direction to the sheriff to surrender these goods to the defendant and was in law tantamount to a delivery by Lucius Hart & Co. [and the other execution creditors] of these goods to the defendant. And this without a scintilla of evidence of any misstatement or other fraud in fact by the defendant. The motive of this delivery is apparent from the evidence but is really immaterial, for “ It is enough that the act was calculated to mislead and actually did mislead the defendant while acting in good faith and with reasonable care and diligence. Blair v. Wait, et al., 69 N. Y., 113, per Miller, J., citing Bank v. Hazard, 30 N. Y., 226.

      Hatch & Warren, attorneys and of counsel, for respondent argued:—
    1. A conveyance of property, the only consideration of which is an agreement on the part of the transferee that he will apply the proceeds in payment of the debts of the transferor, is void, unless recorded in the manner prescribed for a general assignment. Such a conveyance is deemed to be made to hinder, delay and defraud creditors, for the reason that it deprives them of the right to collect their claims by process of law or of the protection given by the general assignment act. It enables a debtor to pay his debts, when and how he chooses, through an assignee, who is not accountable to any court, and the terms of whose trust may be kept secret. Nichols v. McEwen, 17 N. Y., 22; Britton v. Lorenz, 45 Ib., 51; Hine v. Bowe, 46 Hun, 196, and affirmed in 114 N. Y., 350.
    II. A conveyance in consideration of future services of any kind, is void against creditors for want of consideration. Davis v. Briggs, 24 State Rep., 896; Swift v. Hart, 35 Hun., 129; Moore v. Ryder, 65 N. Y., 438, p. 443. A retainer, in consideration of legal services yet to be rendered, is certainly not a more meritorious consideration than an agreement to furnish food, lodging and clothing, which was the consideration in Davis v. Briggs, supra, and cases cited.
    III. The evidence clearly sustains the findings of the trial judge in favor of the plaintiff at all points. The plaintiff rested his case entirely upon the testimony of the defendant and of Mr. Comstock, his cousin and associate in the transaction. There is not the slightest pretence anywhere that a dollar’s worth of present consideration passed from Mr. Bentley, the defendant, to either Cooper & Co., or to Wilkinson.
    IV. The defendant’s admission in the answer is conclusive upon him and he is not at liberty to offer proofs to contradict it. Paige v. Willett, 38 N. Y., 28; Robbins v. Codman, 4 E. D. S., 315, p. 325.
    V. This case is something more than a mere assignment of moneys to be realized upon and to be applied to the payment of creditors in a manner forbidden by the statute. The evidence shows conclusively that the defendant has attempted deliberately to convert this property entirely to his own benefit. It is admitted that he has never parted with any money to any person as a consideration of getting it, and he now claims the right to hold it in consideration of his having rendered services in collecting it, in defending his title to it against the very judgment creditors for whose benefit he was to take it, and he has even the effrontery to claim that his services to the firm in collecting these moneys are worth more than anything he has received, and to ask forty dollars ($40) additional compensation for the services rendered by him in converting these assets to his own use. It is difficult to see upon what theory of law or justice such an arrangement can be allowed in a court of equity.
   By the Court.—Freedman, J.

A careful examination of the whole case has satisfied me that the evidence amply sustains the findings of fact made by the trial judge and that the judgment creditors represented by the plaintiff, as receiver, are not estopped from maintaining the action. The admissions made by the defendant in his answer are conclusive upon him. Under then circumstances the legal conclusions reached are the logical and inevitable result. Even in the absence of an actual intent to hinder, delay or defraud creditors, a conveyance of property, the only consideration of which is an agreement on the part of the transferee that he will apply the proceeds in payment of the debts of the transferor, is void unless executed in the manner prescribed for a general assignment. Britton v. Lorenz, 45 N. Y., 51. And a conveyance in consideration of future services of any kind, is also void against then existing creditors. Davis v. Briggs, 24 N. Y. State Rep., 896; Swift v. Hart, 35 Hun, 129.

The exceptions taken by the defendant are untenable.

The judgment should be affirmed, with costs.

Sedgwick, Ch. J., concurred.


author: By the Court.—McAdam, J.

text:
    SHAARAI BEROCHO, a Religious Society, Respondent v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellant.

      Taxation, exemption from, by a religious society, upon the building and premises used by it for public worship.

    The only question of law involved in this case is whether or not the premises were exclusively used for the purpose of public worship within the meaning of the statute exempting such property from taxation. The appellant claims that the premises were not used exclusively for public worship because part of the top floor was occupied by the janitor of the church for residential purposes.

      Held, that the claim and objection are technical and without merit. The janitor paid nothing for the use of the rooms, was not a tenant, had no proprietory interest or estate in the premises or any part thereof, was removable at the will of the plaintiff and continued there simply because his presence was required by night as well as by day as a caretaker and watch over the property, and was also required for the proper performance of his duties as janitor in heating, opening, lighting and closing the premises. He had no possession distinct from that of the plaintiff which, being a corporation, could care for its property and perform its mission only through the necessary agents and servants required to accomplish the same. The position of janitor was incidental to the purpose of the corporation, hut his presence on, or absence from, the premises in no degree nor manner affected the right of the defendant to impose taxes on the plaintiff’s property if otherwise it was exempt from the same.
    Before Sedgwick, Ck. J., Freedman and McAdam, JJ.

      Decided May 2, 1892.
    Statement of the Case by the Court.
    The plaintiff is a religious society, incorporated under the laws of the state of New York. From January, 1883, to May, 1891, it was the owner in fee of a certain lot of land, with the building thereon, situate on the Southerly side of Forty-fifth street, west of Second avenue in the city of New York, known on the tax map of the city as No. 32, in Block 248, in the Nineteenth Ward. The building was used and occupied as follows :
    The basement was used for the heater and for fuel. The ground floor, which extended to nearly the full depth of the lot, was used exclusively as a synagogue or place of public worship for the congregation of the plaintiff. The second floor was mainly used asa place for religious services or instruction on mornings and afternoons during the week and for Sabbath-school exercises on Saturday afternoon and Sunday morning. The religious worship and instruction were free to all. A small portion of this floor was separated from the rest by a partition and was used, when required, as an office by the treasurer of plaintiff, and by plaintiff’s trustees. The third or top floor contained six rooms, which were used as follows : Four of the rooms by the sexton or janitor of the building, his wife and their grandchild, as living apartments. The fifth room was fitted up as a reception room, and was used by the janitor and his family, and also as a meeting place for the trustees of the plaintiff, whenever they required it. The sixth room was used as a store-room for keeping archives of the plaintiff, and the paraphernalia of the synagogue.
    The sexton or janitor paid no rent for the use and occupancy of his rooms, but received a salary from the plaintiff for his services.
    During each of the years, from 1884 to 1890 (both included), plaintiff’s premises were assessed and taxed by the defendant for state and local purposes. The taxes were regular in form but were not paid, and the plaintiff brought suit for the purpose of having the taxes declared illegal, and restraining the collection thereof on the ground that the property was exempt.
    The court at special term rendered judgment for the plaintiff granting the relief prayed for and the defendant’s appeal.

      William H. Clark, counsel to the corporation, and George S. Coleman of counsel, for appellant, argued:—
    I. Under the general laws of the state taxation is the rule, exemption from taxation is the exception. The language of the statute is “ all lands * * * within this state shall be liable to taxation, subject to ” certain specified exemptions.
    II. A party claiming exemption from taxation must he able to show some general or special statute conferring the immunity. Catlin v. Trustees of Trinity College, 113 N. Y., 133, pp. 137, 138.
    III. Exemptions from taxation are strictly construed and the illegality of a tax must affirmatively, unqualifiedly and conclusively appear. Cooley on Taxation, 2d edition, pp. 204, 205; People ex rel. Westchester Fire Insurance Co. v. Davenport, 91 N. Y., 574, pp. 585, 586; People ex rel. Twenty-third Street Railroad Co. v. Commissioners, 95 Ib., 554, pp. 556, 557.
    IV. In statutes relating to taxation, as in other statutes of a general character, words are to be taken in their ordinary sense. Cooley on Taxation, 2d ed., p. 264.
    Y. A simple and natural construction of the statutes above quoted would not warrant the exemption of plaintiff’s real estate. A building cannot be used exclusively for “ public worship ” and at the same time be devoted, either in whole or in part, to purposes foreign to such worship. In the present instance one floor of plaintiff’s building was used for residential purposes. It was practically a flat where people lived, and slept and prepared and ate their meals. It was the janitor’s home, and not simply and exclusively the house of God. The public worship was confined to stated intervals; hut the secular use was constant and continuous.

      VI. Even the most liberal construction consistent with a right use of words would not entitle, the plaintiff to the relief demanded. The court should not be asked to go any farther in its endeavor to ascertain the legislative intent than to accept and act upon the following proposition: Any building may be said to be used exclusively for public worship so long as the several parts of the building are wholly devoted to purposes necessarily connected with such worship. In the city of New York, during the winter months, it is practically essential to health that a public building be properly heated. All necessary appliances for that purpose are as appropriate to a house of worship as to any other edifice. And if a building for public worship were so large, and the heating apparatus so complex and delicate, and the public services so frequent that the constant presence of a caretaker were required, the court would doubtless feel at liberty so to construe the law as to permit the caretaker to sleep on the premises if a residence near by were shown to be impossible or insufficient. But even that would be very different from permitting a family to dwell in the building, and to carry on there its usual social life. Three comparatively recent decisions bear more or less closely upon the general provisions of the Consolidation Act (§ 827) relative to “ exclusive use,” but only one of them, the case in 52 Hun, are near the point now presented. The cases referred to are: Young Men’s Christian Association v. Mayor, 113 N. Y., 187; Church of St. Monica v. Mayor, 119 Ib., 91; Congregation Kol Israel v. Mayor, 52 Hun., 507. In each instance the tax was sustained, and we think that the views expressed in our brief accord with the principle enunciated in the case of the Congregation Kol Israel (page 509). In other words, if it were shown that the residence of the janitor and his family in the plaintiff’s building “ formed a part of the religious conduct of the plaintiff,” the exemption now contended for might be maintained, but such a claim is not made and is not proved. The judgment of the special term, in the present controversy, was based upon the opinion of the same court in the St. Monica Church case, reported in 55 Superior Court Reports, 160-172. On the question of exclusive use the court said (p. 171): “ It still remains to be considered whether the school-house and premises in question were used exclusively for school purposes. The land involved consists only of a lot 19 feet 6 inches in width and about 102 feet in depth, and on that the building stands. The building had prior to 1882, been fitted up for school purposes, and during the whole of that year it was in use as a school. Every floor was in actual use for the purpose of furnishing instruction to pupils, free of charge, except that the top floor was occupied and used by some sisters of the church as a residence. But as the sisters thus residing there had the immediate management of the school, and resided on the premises only on that account, and as their residence did not constitute a source of revenue or profit to the plaintiff, the top floor may be fairly said to have been as much devoted to a school purpose as the other floors were. Upon all the facts, the whole building and the entire premises were used exclusively for school purposes within the meaning of the statute.” In the Court of Appeals the decision turned on another point, and the court did not undertake to give a precise construction” (119 N. Y., p. 95), to the word “ exclusively,” as used in the Consolidation Act.

      Metzger & Goldey, attorneys, and Bernard Metzger of counsel, for respondent, argued :—
    I. It is conceded by the defendant that the plaintiff possesses all the elements which would entitle it to exemption under the statute, except the sole and exclusive contention upon part of the defendant, that the premises in question were, not exclusively used for the purpose of public worship within the meaning of the statute, which is as follows : “ Every building erected for the use of a college, incorporated academy or other seminary, of learning, and in actual use for either of said purposes, every building for public worship, every school-house, court-house and jail, used for either of such purposes, and the several lots whereon such buildings so used, are situate, and the furniture belonging to each of them, shall be exempt from taxes.” Banks, 8 Rev. Stat., vol. 2, p. 1083. The law applicable to the city of New York, passed in 1882, and known as chapter 410, section 827, thereof, says as follows : “ Exemption from taxes of every building for public worship, and every school-house, or other seminary of learning, under the provisions of subdivision 3 of section 4, chapter 1, of chapter 13 of part 1 of the Revised Statute or amendment thereof, are not applied to any such building or premises, in the city of New York, unless the same shall be exclusively used for such purposes and exclusively the property of such religious society.” Chapter 282 of the laws of 1852, page 417, were substantially re-enacted in chapter 410 of the laws of 1882, and made no abridgment in the exemption prescribed by the Revised Statute. It is conceded that the plaintiff is a religious corporation, duly incorporated under the laws of the state of New York. It is further conceded that the property in question belonged exclusively to the plaintiff as such religious society. It is also conceded that the said premises were used by said plaintiff as such religious society, for public worship and religious instruction, except some three rooms on the top floor which was occupied by the janitor and sexton of said religious society. It would be the most unnatural, forced and violent construction of language, to hold that because a sexton and janitor occupies three or four rooms of a church edifice, consequently such premises are not exclusively devoted to religious purposes. The question at issue affects a large number of churches and synagogues belonging to various denominations, and is consequently of great importance. The findings of fact clearly establish, that it was necessary for the janitor and sexton to reside in said premises, for the following reasons: (a.) To enable the said religious society to exercise its religious belief amongst its members, by permitting them to hold religious services for public worship every morning and afternoon, during the week and for Sabbath exercises on Saturday afternoon and Sunday morning, and that to open and to close the church edifice and to do other necessary things to hold such services, it was absolutely requisite for him to he at the premises in question. (6.) It was a part of his duty as janitor to keep said premises clean, and also, during the winter months, take care of the heater and fires in said synagogue, (c.) It was also the duty of the janitor, as appears by the findings, to take care of the property of the plaintiff. There are many articles used in the ceremonies and rituals attending the public worship, which consist of both gold and silver and precious stones, and it is consequently necessary that such property should have protection.
    II. It is consequently shown, that, in this case, there was a full and substantial compliance with the statute. It is not claimed that the plaintiff received or collected any revenue from the rooms occupied by the sexton ; upon the contrary, it has been found by the court, that the sexton or janitor received a salary from the plaintiff for his services. In the case of the Congregation Kol Israel v. The Mayor, 52 Hun, 507, it appears that the first floor of the synagogue was used for living apartments by the janitor, and also for bathing apartments accessible to all men and women of the Hebrew race, whether members of the congregation or not, upon payment of a pecuniary compensation for the use thereof; consequently, the plaintiff, in that case, received a revenue and carried on a separate business, and it was upon that ground that the court held that the same was subject to taxation. The test appears to be, did the plaintiff derive any income or revenue from the rooms in question or did the plaintiff carry on a separate establishment which was foreign or outside of its proper functions as a religious society. The precise point was adjudicated upon, in the case of the Church of St. Monica v. The Mayor, 55 Sup. Court, 106. Freedman, J., amongst other things, says on page 171: “ Every floor was in actual use for the purpose of furnishing instruction to pupils free of charge, except the top floor, which was occupied by some Sisters of the Church as a residence; hut as the Sisters thus residing there had immediate management of the school and resided on the premises only on that account, and as their residence did not constitute a source of revenue and profit to the plaintiff, the top floor may be fairly said to have been as much devoted to a school purpose as the other floors were. Upon all the facts, the whole building and entire premises, were used for school purposes within the meaning of the statute,” etc., etc., etc. It is true that this case was subsequently reversed by the Court of Appeals, 119 N. Y., page 91, opinion by Earle, J. The only and precise point, however, upon which the case in question supra was reversed was that the premises, or the legal title thereto, was not held by a religious society, duly incorporated under the laws of the state of New York.
    III. The case at bar is entirely different and distinguished from any of the cases cited. It was possessed of all the legal attributes to entitle the plaintiff to exemption. It is a duly incorporated religious society; it exclusively owned the property in question; the same was entirely devoted to religious worship and instruction within the contemplation of the statute. The plaintiff received no income or revenue whatsoever from any portion of the synagogue or church edifice, except such as were paid by its contributing members. The religious worship and religious instruction were open and free to all, and such societies or religious bodies should be encouraged and the statute liberally construed. 11 Hun, 505, supra; 55 Sup. Court, 160.
   By the Court.—McAdam, J.

The facts are not in dispute, and the single question of law involved is. whether the premises, during the period mentioned, were exclusively used for purposes of public worship, within the meaning of the statutes exempting such property from taxation. Consol. Act, 1882, § 827. It is urged by the appellant, that the premises were not used exclusively for public worship, because, as they assert, part of the top floor was occupied by the janitor of the church for residential purposes. The objection is technical and without merit. The janitor paid nothing for the use of the rooms, was not a tenant, had no proprietory interest or estate in any part of the premises, was removable at will, and was there, simply because his presence, by night as well as day, was required as a caretaker of the property. He was also required to heat, open, light and close the premises. He had no possession distinct from that of the plaintiff, which being a corporation, could care for its property and perform its mission, only through the necessary agents and servants required to accomplish the praiseworthy end in view. The position of janitor was incidental to the purpose of the corporation, but his presence on or absence from the premises in no manner affected the right to impose taxes on the plaintiff’s property, if otherwise exempt from the taxing power. The property was not used for pecuniary gain as in Congregation K. I. A. P. v. The Mayor, etc., 52 Hun, 507, nor was the principal use applied to other than religious purposes as in Young Men’s Christian Asso. v. The Mayor, etc., 113 N. Y., 187, nor is the right of the plaintiff to exemption open to the want of incorporation, which was the ground of objection sustained in Church of St. Monica v. Mayor, 119 N. Y., 91, so that the cases relied on by the defendant do not reach the vital point at issue here. The object of the statute was to foster incorporated religious societies, and it must be reasonably construed according to its spirit in furtherance of the legislative intent. It cannot be frustrated by a technicality so finely drawn as that urged against the plaintiff’s right to exemption. Effect must be given to the principal thing the legislature had in view, the policy that dictated the act. These should not be subordinated to mere incidents required to give it efficacy and life. The former control—the latter follow. The judgment was right and must be affirmed, with costs.

Sedgwick, Ch. J., and Freedman, J., concurred.


author: Opinion by Dugro, J., Sedgwick, Ch. J.,

text:
    EMANUEL STEINHARDT, et al., Appellants v. MAX BEIR, Respondent.

      Order of arrest—Intent to defraud must be stated in moving papers.

    The plaintiffs obtained an order of arrest alleging in the affidavit in support of the order that defendant made certain promises to plaintiffs thereby inducing them to sell and deliver to him certain goods, and defendant wholly failed and neglected to keep said promises. There was no allegation that defendant made such promises with intent to deceive. The defendant moved upon the papers on which the order of arrest was granted to vacate the same, which motion was granted. Held no error ; that no facts are set forth showing the defendant guilty of fraud ; that because defendant failed to perform his agreement does not raise a presumption that he intended non-performance at the time he made the agreement ; retroactive presumptions are not applicable to cases of this character.
    Before Sedgwick, Ch. J., and Dugro, J.

      Decided November 10, 1891.
    Appeal from an order vacating an order of arrest, upon motion made upon the papers supporting the order of arrest.

      Edward Jacobs, for appellants.

      David M. Neuberger, for respondent.
   Opinion by Dugro, J., Sedgwick, Ch. J.,

concurring, holding as stated in the head-note. Order affirmed, with ten dollars costs.


text:
    Charles C. Bauer, Respondent v. The Consumers’ Ice Company, Appellant.
    Decided October 10, 1891.
    Appeal by defendant from judgment entered on a verdict of jury in favor of plaintiff, and from order denying motion for a new trial.
    Edwards & Odell, for appellant. Lachman, Morgenthau & Goldsmith, for respondent.
    Before Freedman, P. J., Dugro and Gildersleeve, JJ.
   Opinion by Dugro, J.; Freedman, P. J., and Gildersleeve, J., concurred.

Judgment and order affirmed, with costs.


text:
    Charles G. Gabrielson, Respondent v. Frederic Waydell, et al., Appellant.
    Decided October 10, 1891.
    Exceptions by defendants directed to be heard in the first instance at general term upon verdict in plaintiff’s favor.
    N. B. Hoxie, for defendants. George P. Gordel, for plaintiff.
    Before Dugro and Gildersleeve, JJ.
   Opinion by Dugro, J.; Gildersleeve, J., concurred.

Exceptions overruled and judgment directed for plaintiff upon the verdict.


author: Per Curiam.

text:
    Warren Rosevelt, Respondent v. Alexander McGaw, Appellant.
    Decided November 10, 1891.
    Appeal by defendant from order of reference.
    Leavitt & Keith, for appellant. William G. Bussey, for respondent.
    Before Sedgwick, Ch. J., Freedman and Dugro, JJ.
   Per Curiam.

Order affirmed, with $10 costs.


text:
    The New York Life Insurance Co., Respondent v. James Aitkin, as Executor, etc., Appellant.
    Decided November 10, 1891.
    Appeal from part of order allowing defendant to amend answer terms.
    Johnston & Johnston, for appellant. H. G. Atwater, for respondent.
    Before Sedgwick, Ch. J., Freedman and Dugro, JJ.
   Per Curiam.

Order affirmed, with $10 costs and disbursements.


text:
    William Nelson Cromwell, as Assignee, etc., Respondent v. William F. Black, Appellant.
    Decided November 10, 1891.
    Appeal from order .denying defendant’s motion for a further bill of particulars.
    Eugene D. Hawkins, for appellant. William J. Curtis, for respondent.
    Before Sedgwick, Ch. J., Freedman and Dugro, JJ.
   Per Curiam.

Order affirmed, with $10 costs and disbursements.


text:
    William Dempsey, Appellant v. John Heaney, Respondent.
    Decided November 10, 1891.
    Appeal from order vacating order for examination of defendant before trial.
    Edmund Luis Mooney, for appellant. Bernard Metzger, Metzger, for respondent.
    Before Sedgwick, Ch. J., and Dugro, J.
   Per Curiam.

No necessity appears for the examination. Order affirmed, with $10 costs.


text:
    C. Gray Bolton, et al., Appellants v. William Schriever, et al., Respondents.
    Decided December 15, 1891.
    Appeal from order denying motion to vacate order for extra allowance and to have costs of defendants retaxed.
    Smith & Perkins, attorneys, and Edward C. Perkins of counsel^ for appellants. Johnston & Johnston, for respondents.
    Before Freedman, P. J., and McAdam, J.
   Per Curiam.

Order affirmed, with $10 costs.


text:
    Eliza Whitlock White, Respondent v. The New York Elevated Railroad Company, et al., Appellants.

      Decided December 17, 1891.
    Appeal by defendants from judgment entered upon decision of at equity term.
    Davies & Rapallo, attorneys, and J. C. Thomson of counsel, for appellants. G. Willett Van Nest, for respondent.
    Before McAdam and Gildersleeve, JJ.
   Per Curiam.

Judgment affirmed, with costs.


text:
    Edith Kane, Respondent v. The Metropolitan Elevated Railway Company, et al., Appellants.
    Decided December 17, 1891.
    Appeal by defendants' from judgment entered upon decision of judge at equity term.
    Davies & Rapallo, attorneys, and J. C. Thomson of counsel, for appellants. John A. Weekes, Jr., for respondent.
    Before McAdam and Gildersleeve, JJ.
   Per Curiam.

Judgment affirmed, with costs.


text:
    Frederick Zimmerman, Respondent v. The Broadway and Seventh Avenue Railroad Company, Appellant.
    Decided January 11, 1892.
    Appeal by defendant from judgment entered on verdict of jury in the plaintiffs favor and from an order denying motion for a new trial.
    Root & Clarke, for appellant. Earned & Warren, for respondent.
    Before Freedman, P. J., McAdam and Gildersleeve, JJ.
   Opinion by Freedman, P J.; McAdam and Gildersleeve, JJ., concurred.

Judgment and order affirmed, with costs.


text:
    Margaret Arnold, Respondent v. The Metropolitan Elevated Railway Company, et al., Appellants.
    Decided January 11, 1892.
    Appeal by defendants from judgment entered upon the report of a referee.
    Davies & Rapallo, attorneys, and Joseph E. Lord of counsel, for appellants. Edwin M. Felt, for respondent.

      Before Freedman, P. J., McAdam and Gildersleeve, JJ.
   Opinion by McAdam, J.; Freedman, P. J., and Gildersleeve, J., concurred.

Judgment affirmed, with costs.


text:
    Jacob Bookman, Respondent v. The New York Elevated Railroad Company, et al., Appellants.
    Decided January 11, 1892.
    Appeal by defendants from judgment entered upon decision by a judge after trial at special term.
    Davies & Rapallo, attorneys, and Edward B. Thomas of counsel, for appellants. William G. Peckham, attorney, and E. W. Tyler of counsel, for respondent.
    Before Freedman, P. J., McAdam and Gildersleeve, JJ.
   Opinion by McAdam, J.; Freedman, P. J., and Gildersleeve, J., concurred.

Judgment affirmed, with costs.


text:
    George Southwick, Respondent v. Adolph Bernhard, Appellant.
    Decided January 11, 1892.
    Appeal by defendant from judgment entered upon the verdict of a jury in plaintiff’s favor, and from an order denying defendant’s motion for a new trial. Action to recover damages for wrongful discharge of plaintiff from defendant’s employ.
    E. A. Jacob, attorney, and David Leventritt of counsel, for appellant. Milnor & Willis, for respondent.
    Before Freedman, P. J., McAdam and Gildersleeve, JJ.
   Opinion by McAdam, J.; Freedman, P. J., and Gildersleeve, J., concurred.

Judgment and order affirmed, with costs.


text:
    Emerson A. Phelps, Respondent v. The Metropolitan Elevated Railway Company, et al., Appellants.
    Decided January 11, 1892.
    Appeal by defendants from judgment entered upon the report of a referee.
    Davies & Rapallo, attorneys, and J. C. Thomson of counsel, for appellants. Edwin M. Felt, for respondent.
    Before Freedman, P. J., McAdam and Gildersleeve, JJ.
   Opinion by McAdam, J.; Freedman, P. J., and Gildersleeve, J., concurred.

Judgment affirmed, with costs.


text:
    William N. Pooley, Respondent v. Mendez D. Senior, Appellant.
    Decided January 11, 1892.
    Motion by plaintiff at the general term to vacate order of the general term entered October 10, 1891.
    Before Freedman, P. J., McAdam and Gildersleeve, JJ.
   Per Curiam.

Motion granted, with $10 costs of motion to be paid by defendant’s attorney, personally.


text:
    Benjamin B. Johnston, Respondent v. The Manhattan Railway Company, et al., Appellants.
    Decided January 11, 1892.
    Appeal from a judgment rendered at the special term.
    Davies & Rapallo, attorneys, and Joseph E. Lord of counsel, for appellants. Peckham & Tyler for respondent.
    Before Freedman, P. J., McAdam and Gildersleeve, JJ.
   Opinion by Gildersleeve, J.; Freedman, P. J., and McAdam, J., concurred.

Judgment affirmed, with costs.


text:
    Frederick Esper, Respondent v. The New York Elevated Railroad Company, et al:, Appellants.
    Decided January 11, 1892.
    Appeal from a judgment rendered at the special term.
    Davies & Rapallo, attorneys, and Joseph E. Lord of counsel, for appellants. Peckham & Tyler, attorneys, and Henry G. Atwater of counsel, for respondent.
    Before Freedman, P. J., McAdam and Gildersleeve, JJ.
   Opinion by Gildersleeve, J.; Freedman, P. J., and McAdam, J., concurred.

Judgment affirmed, with costs.


text:
    Katharine Neuman, Respondent v. The New York Elevated Railroad Company, et al., Appellants.
    Decided January 11, 1892.
    Appeal from a judgment rendered at the special term.
    Davies & Rapallo, attorneys, and Joseph E. Lord of counsel, for appellants. Peckham & Tyler, attorneys, and Henry G. Atwater of counsel, for respondent.
    Before Freedman, P. J., McAdam and Gildersleeve, JJ.
   Opinion by Gildersleeve, J.; Freedman, P. J., and McAdam, J., concurred.

Judgment affirmed, with costs.


text:
    William B. Norman, Respondent v. Solomon Johnson, Appellant.
    Decided January 11, 1892.
    Appeal by defendant from judgment entered on verdict of jury and from order denying motion for a new trial.
    William B. Waring, attorney, and Charles W. Brooke of counsel, for appellant. Walter R. Beach, for respondent.
    Before Freedman, P. J., and Gildersleeve, J.
   Opinion by Gildersleeve, J.; Freedman P. J., concurred.

Judgment and order affirmed, with costs.


text:
    Philip Milligan, Respondent v. The Metropolitan Elevated Railway Company, et al., Appellants.
    Decided January 11, 1892.
    Appeal by defendants from judgment entered upon report of referee.
    Davies & Rapallo, for appellants. Edwin M. Felt, for respondent.
    Before Freedman, P. J., McAdam and Gilder-sleeve, JJ.
   Per Curiam.

Judgment affirmed, with costs.


text:
    Emanuel S. Sutro, et al., Respondents v. The Manhattan Railway Company, et al., Appellants.

      Decided January 11, 1892.
    Appeal by defendants from a judment entered at special term.
    Davies & Rapallo, attorneys, and Edward B. Thomas of counsel, for appellants. Peckham & Tyler, attorneys, and E. W. Tyler of counsel, for respondents.
    Before Freedman, P. J., McAdam and Gildersleeve, JJ.
   Per Curiam.

Judgment affirmed, with costs.


text:
    Valentine Diefenthaler, Respondent v. The Metropolitan Elevated Railway Company, et al., Appellants.
    Decided January 11, 1892.
    Appeaf by defendants from judgment entered upon the report of a referee.
    Davies & Rapallo, for appellants. Edwin M. Felt, for respondent.
    Before Freedman, P. J., McAdam and Gildersleeve, JJ.
   Per Curiam.

Judgment affirmed, with costs.


text:
    Dedrick H. Bultman, Respondent v. The New York Elevated Railroad Company, et al., Appellants.
    Decided January 11, 1892.
    Appeal by defendants from judgment entered at special term.
    Davies & Rapallo, for appellants. Peckham & Tyler, for respond-dent.
    Before Freedman, P. J., McAdam and Gildersleeve, JJ.
   Per Curiam.

Judgment affirmed, with costs.


text:
    William Murphy, Respondent v. The Broadway and Seventh Avenue Railroad Company, Appellant.
    Decided January 11, 1892.
    Appeal by defendant from judgment entered in favor of the plaintiff upon the verdict of a jury and from order denying defendant’s motion for a new trial.
    Root & Clarke, for appellant. Shaffer & Burt, attorneys, and Chauncey Shaffer of counsel, for respondent.
    Before Freedman, P. J., McAdam and Gildersleeve, JJ.
   Per Curiam.

Judgment and order affirmed, with costs.


text:
    George Langdon, Plaintiff v. The New York Book Company, Defendant.
    Decided January 11, 1892.
    Appeal by receiver from order denying motion to vacate order granting John B. Alden leave to sue receiver.
    Straley, Hasbrouck & Schloeder, attorneys, and Frederic R. Kellogg of counsel, for respondent Alden. Dill, Chandler & Seymour, attorneys for George H. Stonebridge, Jr., the receiver, appellant.
    Before Freedman, P. J., and Gildersleeve, J.
   Per Curiam.

Order affirmed, with $10 costs’ and disbursements to be paid by the receiver.


text:
    Samuel H. Randall, Respondent v. Jacob A. Sherman, and another, Appellants.
    Decided January 11, 1892.
    Appeal by defendants from order of reference.
    Leavitt & Keith, attorneys, and John Brooks Leavitt of counsel, for appellants. Samuel H. Randall, attorney in person, for respondent.
    Before Freedmen, P. J., and Gildersleeve, J.
   Per Curiam.

Order affirmed, with $10 costs.


text:
    James H. Shady, Respondent v. The Metropolitan Elevated Railway Company, et al., Appellants.
    Decided January 29, 1892.
    Appeal by defendant from judgment entered on the report of a referee.
    Davies & Rapallo, attorneys, and Plerbert Barry of counsel, for appellants. Edwin M. Felt, for respondent.
    Before Freedman, P. J., McAdam and Gildersleeve, JJ.
   Opinion by Gildersleeve, J.; Freedman, P. J., and McAdam, J., concurred.

Judgment affirmed, with costs.


text:
    Annie C. Sperb, Respondent v. The Metropolitan Elevated Railway Company, et al., Appellants.
    Decided January 29, 1892.
    Appeal by defendants from judgment in favor of plaintiff entered upon the report of a referee.
    Davies & Rapallo, attorneys, and Brainard Tolles of counsel, for appellants. Edwin M. Felt, for respondent.
    Before Dugro and Gildersleeve, JJ.
   Opinion by Gildersleeve, J.; Dugro, J., concurred.

Judgment affirmed, with costs.


text:
    Sophia Frank, Respondent v. The Metropolitan Elevated Railway Company, et al., Appellants. Barbara Fahrbach, Respondent v. The Metropolitan Elevated Railway Company, et al., Appellants. Charles Ludovici, Respondent v. The Metropolitan Elevated Railway Company, et al., Appellants. Isaac Lubin, Respondent v The Metropolitan Elevated Railway Company, et al., Appellants.
    Decided March 14, 1892.
    Appeals by defendants from judgments respectively entered upon the reports of a referee.
    Davies & Rapallo, for appellants. Sackett & Bennett, for, respondents.
    Before Sedgwick, Ch. J., Dugro and Gildersleeve, JJ.
   Opinion by Dugro, J.; Sedgwick, Ch. J., and Gildersleeve, J., concurred.

Judgments affirmed, with costs, upon authority of Jordan v. The Metropolitan Elevated Railway Co., ante page 385.


text:
    Silvia Livingston, Respondent v. The Metropolitan Elevated Railway Company, et al., Appellants.
    Decided March 14, 1892.
    Appeals by defendants from, a judgment in favor of plaintiff, entered on the report of a referee.
    Davies & Rapallo, attorneys, and Herbert Barry of counsel, for appellants. Olin, Rives & Montgomery, attorneys, and George L. Rives of counsel, for respondent.
    Before Sedgwick, Ch. J., Dugro and Gildersleeve, JJ.
   Opinion by Gildersleeve, J.; Sedgwick, Ch. J., and Dugro, J., concurred.

Judgment affirmed, with costs, on opinion in Livingston v. The Metropolitan Elevated Railway Co., ante page 389.


text:
    Morgan L. Livingston, and Another, Respondents v. The Metropolitan Elevated Railway Company, et al., Appellants.
    Decided March 14, 1892.
    Appeal by defendants from a judgment in favor of plaintiffs, entered on the report of a referee.
    Davies & Rapallo, attorneys, and Herbert Barry of counsel, for appellants. Olin, Rives & Montgomery, attorneys, and George L. Rives of counsel, for respondents.
    Before Sedgwick, Ch. J., Dugro, and Gildersleeve, JJ.
   Opinion by Gildersleeve, J.; Sedgwick, Ch. J., and Dugro, J., concurred.

Judgment affirmed, with costs, on opinion in Livingston v. The Metropolitan Elevated Railway Co., ante page. 389


text:
    Samuel Weiss, et al., Respondents v. The Metropolitan Elevated Railway Company, et al., Appellants.
    Decided March 14, 1892.
    Appeal by defendants from a judgment in favor of plaintiffs, entered upon the report of a referee.
    Davies & Rapallo, for appellants. Sackett & Bennett, attorneys, and Charles Gibson Bennett of counsel, for respondents.
    Before Sedgwick, Ch. J., Dugro and Gildersleeve, JJ.
   Opinion by Gildersleeve, J.; Sedgwick, Ch. J., and Dugro, J. concurred.

Judgment affirmed, with costs.


text:
    Lewis Seasongood, et al., Respondents v. The New York Elevated Railroad Company, et al., Appellants.
    Decided March 14, 1892.
    Appeal by defendants from judgment in favor of plaintiffs entered upon the report of a referee.
    Davies & Rapallo, for appellants. Sackett & Bennett, for respondents.
    Before Sedgwick, Ch. J., Dugro and Gildersleeve, JJ.
   Opinion by Gildersleeve, J.; Sedgwick, Ch. J., and Dugro, J., concurred.

Judgment affirmed, with costs.


text:
    John M. Otter, Respondent v. The Metropoltan Elevated Railway Company, et al., Appellants.
    Decided March 14, 1892.
    Appeal by defendants from a judgment, entered on the report of a referee, in favor of the plaintiff.
    Davies & Rapallo, for appellants. Sackett & Bennett, attorneys, and Charles Gibson Bennett of counsel, for respondent.
    Before Sedgwick, Ch. J., Dugro and Gildersleeve, JJ.
   Opinion by Gildersleeve, J.; Sedgwick, Ch. J., and Dugro, J., concurred.

Judgment affirmed, with costs.


text:
    Florence W. Haigh, and another, Respondents v. Christine H. Crocker, et al., Appellants.
    Decided March 14, 1892.
    Appeal by defendants from order continuing injunction.
    D. A. Stephens, for appellants. Foster & Stephens, attorneys, and George W. Stephens of counsel, for respondents.
    Before Sedgwick, Ch. J., Dugro and Gildersleeve, JJ.
   Per Curiam.

Order affirmed, with $10 costs to abide the event.


text:
    Eliza L. Hinschberger, Respondent v. The Manhattan Railway Company, et al., Appellants.
    Decided March 14, 1892.
    Appeal by defendants from judgment in favor of plaintiff entered upon decision of a judge at special term.
    Davies & Rapallo, attorneys, and Joseph E. Lord of counsel, for appellants. Peck-ham & Tyler, attorneys, and Charles A. B. Pratt, Jr. of counsel, for respondent.
    Before Sedgwick, Ch. J., Dugro and Gildersleeve, JJ.
   Per Curiam.

Judgment affirmed, with costs.


text:
    Gretchen Seebach, individually, etc., et al., Respondents v. The Metropolitan Elevated Railway Company, et al., Appellants.
    Decided March 14, 1892.
    Appeal by defendants from judgment in favor of the plaintiffs entered upon the report of a referee.
    Davies & Rapallo, for appellants. Sackett & Bennett, for respondents.
    Before Sedgwick, Ch. J., Dugro and Gildersleeve, JJ.
   Per Curiam.

Judgment affirmed, with costs.


text:
    Elizabeth A. Culliford, Respondent v. Montgomery Gadd, Appellant.
    Decided March 14, 1892.
    Motion by appellant for re-argument.
    Sidney Harris, for appellant. F. Spiegelberg, for respondent.
    Before Sedgwick, Ch. J., and Dugro, J.
   Per Curiam.

Motion denied, with ¡$10 costs.


text:
    John H. F. Uhlenhaut, Respondent v. The Manhattan Railway Company, et al., Appellants.
    Decided April 11,1892.
    Appeal by defendants from judgment in favor of plaintiff entered upon decision of judge at special term.
    Davies & Rapallo, for appellants. Charles E. Crowell, attorney, and Roger Foster of counsel, for respondent.
    Before Sedgwick, Ch. J., Dugro and Gildersleeve, JJ.
   The trial judge directed each of defendants’ proposed findings to be marked refused except so far as covered by the findings of fact and conclusions of law settled and signed by me.” The general term held that this was not prejudicial error requiring reversal. Opinion by Dugro, J.; Sedgwick, Ch. J. and Gildersleeve, J., concurred. Judgment affirmed, with costs.


text:
    UNITED STATES TRUST COMPANY OF NEW YORK, as Trustee, Etc., Respondent v. MILES M. O’BRIEN, Appellant.

      Landlord and tenant—Lease, breach of covenant thereof—Damages.

    This action was brought to recover damages for an alleged breach of the usual clause or covenant in a lease which required the defendant (the lessee) to permit the notice “ To Let ” to be placed upon the building, and to allow the building to be inspected by persons desiring to rent the same from the plaintiff (the lessor). A sub-tenant of the defendant occupying the premises from March 1 to May 1, 1889, the last portion of the term, refused to permit the plaintiff to exhibit the premises or to put up the bill of “ To Let ” thereon, as provided for in the covenant.
    There was no evidence that the plaintiff could have rented the premises, beyond that to be inferred from the fact that defendant’s sub-tenant refused to show the premises to a person taken there to inspect them and to permit the bill “ To Let ” to remain on the premises. After the termination of the lease the premises remained vacant for about five months. They were worth about $75 per month, and the jury awarded the plaintiff $375 damages, being the rent for the time the premises were vacant.

      Held, that there was no reasonable certainty that the plaintiff would have let the house if the covenant claimed to have been violated had been literally and fully performed. There was no solid substantial basis on which the jury could find, as matter of fact, that the refusal to perform this covenant was the sole cause of keeping plaintiff’s house idle for five months, and in consequence plaintiff lost so many months’ rent. The result arrived at was necessarily speculative and conjectural. The jury were limited to an award for damages or compensation for the actual, not the possible loss, and from the evidence there is no way of determining that the sum awarded was necessary to compensate for the real injury done, or that the acts of the under-tenant were the proximate cause of so much damage. There was nothing in the proofs, presented on the trial of this action to warrant the damages allowed to the plaintiff and awarded by the verdict of the jury.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.

      Decided May 2, 1892.
    Statement of the Case by the Court.
    The action is by the plaintiff, as the successor in interest of the landlord of No. 240 East 60th street, against the defendant as tenant, to recover damages, for a breach of the following covenant, contained in the lease of the premises “ that the defendant will at any reasonable hour in the daytime, permit the lessor or his agent to show the premises to such persons as he desires for the purpose of selling or leasing the same, and will permit the usual notice of ‘ To Let ’ to be posted on the premises there to remain without molestation.” The demise was for three years commencing May 1, 1886, and ending May 1, 1889. In November, 1888, the defendant vacated the" premises, and in the following February, he sub-let them from March 1 till May 1, 1889, to a Mrs. Worms, who refused to permit the plaintiff to exhibit the premises or put up the bill of “ To Let” provided for by the covenant. Mrs. Worms moved away on May 1,1889, and the premises remained vacant for about five months. They were worth about $75 per month, and the jury awarded the plaintiff $375 damages, being the rent for the time the premises were vacant. There was no evidence that the plaintiff could have rented the premises, except that to be inferred from the fact, that the defendant’s lessee, Mrs. "Worms, refused to show the premises to a person taken there to inspect them and saying she would not permit any person to examine them, and by her refusal to permit the bill of “ To Let ” to remain on the premises.
    The defendant moved for a new trial, which was denied, and from the judgment and order denying said motion the defendant appeals.

      Durnin & Hendricks, attorneys and of counsel, for appellant, argued:
    I. It cannot be said that the proximate cause of the house remaining idle from the first of May, 1889, until the first of February, 1890, was the act of the defendant in refusing to allow the notice “ To Let ” to be placed upon the house or persons to inspect the same, or that the fact that the house remained empty was the natural result of such acts, and, therefore, no damage was shown and the motion to dismiss the complaint, either at the close of the plaintiff’s case or at the close of the whole case, should have been granted. Sedgwick on Damages, 8th edition, vol. 1, p. 56 ; Greenleaf on Evidence, 14th edition, vol. 2, § 256; Griffin v. Colver, 16 N. Y., 489; Baldwin v. U. S. Tel. Co., 45 Ib., 744; Parsons v. Saltus, 66 Ib., 92; Frye v. Maine Central, 67 Maine, 414 ; U. S. Tel. Co. v. Gildersleeve, 96 Am. Dec., 519; Ashe v. De Rosset, 72 Ib., 552 ; Wulstein v. Mohlman, 57 Supr., 50-57 ; Allen v. McConike, 124 N. Y, 342. In Griffin v. Colver, 16 N. Y., 489, one of the leading cases in this state, at page 49, the rule is laid down as follows : “ The damages must be such as may fairly be supposed to have entered into the contemplation of the parties when they made the contract, that is, must be such as might naturally be expected to follow its violation; and they must be certain, both in their nature and in respect to the cause from which they proceed. The familiar rules on the subject are all subordinate to these. For instance : That the damage must flow directly and naturally from the breach of contract, is a mere mode of expressing the first; and that they must be not the remote but proximate consequence of such breach, and must not be speculative or contingent, are different modifications of the last. These two conditions are entirely separate and independent, and to blend them tends to confusion, thus the damages claimed may be the ordinary and natural, and even necessary result of the breach ; and yet if in their nature uncertain they must be rejected, as in the case of Blanchard v. Ely, where the loss of the trips was the direct and necessary consequence of the plaintiff’s failure to perform. So they may be definite and certain, and clearly consequent upon the breach of contract, and yet if such as would not naturally flow from such breach, but for some special circumstances collateral to the contract itself or foreign to its apparent object they cannot be recovered ; as in the case of the loss by the clergyman of his tithes by reason of the failure to deliver the house.” In Allen v. McConike, 124 N. Y. R., 342, at page 347, the court says : “ The general rule for determining the amount of damages recoverable for the violation of a contract or the breach of a duty is that the injured party is entitled to such as are the natural (or to be apprehended) direct and immediate results of the breach (Grffin v. Colver, 16 N. Y., 489 ; Hamilton v. McPherson, 28 Ib., 72; Hadley v. Baxendale, 9 Exch., 341). This rule is subject to the qualification that if the person injured thereafter negligently suffers his loss to be enhanced the increase so occasioned cannot be recovered from the person who first violated his contract or duty, and in some cases it is incumbent on the person damnified to take suck active measures as he reasonably may to minimize the damages naturally flowing from the breach. Hamilton v. McPherson, 28 N. Y., 72; Johnson v. Meeker, 96 Ib., 93-97 ; 1 Suth. Dam., 148; 1 Sedg. Dam., 7 ed., 56; May Dam., 86.
    H. “ Damages for breaches of contract are only those which are incidental to, and directly caused by the breach, and may reasonably be presumed to have entered into the contemplation of the parties,” that a lessee should be liable for a breach of a covenant like the one in the case at bar. During the period after the lessor has taken possession and until the premises are again rented cannot reasonably be presumed to have entered into the contemplation of the parties. Hamilton v. McPherson, 28 N. Y., 72; Cases cited, supra. (1.) There is no evidence that any one was willing to take the premises from May 1, 1889, the property certainly could not have been occupied by any tenant while the mechanics were there repairing. It took about three weeks to make the repairs, and the exception to the judge’s charge that the measure of damages was the reasonable rental value from May 1,1889, until the premises were rented is well taken. (2.) The exceptions to the refusal to charge are also well taken. The plaintiff did not attempt to post the notice “ To Let ” after February 1, 1889, but acquiesced in the occupant’s refusal to allow them to do so.

      Stewart & Sheldon, attorneys, and Samuel H. Benton of counsel, for respondent, argued :
    I. The court did not err in refusing the motions to dismiss, made on the ground that there was no proof that the failure to rent was the result of defendant’s acts. We assume that the motion was directed to the point that the evidence did not show a connection between the injury and the damage. The motion to dismiss was renewed at the close of the testimony “ on the ground that there is no evidence in the case upon which a verdict of the jury can be based against the defendant. That there is no proof of damages and on the ground that if the case be submitted to the jury it will be speculative as to the amount of damages.” The question here is, is this a case of injuria sine damno (Sedgwick on Damages, § 32), or of injuria resulting in damage ? That is, does the damage proved by the plaintiff result from the wrong of the defendant. The wrong is admitted. The only denial is that it caused the damage. The defendant cannot set up as an answer to the action the bare possibility of a loss if his wrongful act had never been done. Davis v. Garratt, 6 Bingham’s Reports. This was the famous case where a cargo of lime was damaged by a tempest, the defendant having deviated from the course agreed upon. The defence was that no damages were proved, because the cargo might not have been brought safely to port in good condition had the deviation not taken place. The defence was held bad. Tendal, Ch. J., said : “ No wrongdoer can be allowed to apportion or qualify his own wrong ; as a loss has actually happened whilst his wrongful act was in operation and force, and which is attributable to his wrongful act, he cannot set up as an answer the bare possibility of a loss if his wrongful act had never been done.” This principle was adopted in Drucker v. Manhattan Ry. Co., 106 N. Y., 157. The court say, at page 164: “ But when all the proof which, in the nature of the case is fairly possible has been given, the good sense of a jury must provide the answer, and it is no defence that such judgment involves more or less of estimate and opinion having very little to guide it. That criticism has no force in the mouth of the wrongdoer when all reasonable data have been furnished for consideration.” It has never been held in this state that in an action for breach of contract it must be shown with absolute certainty that the damage resulted from the breach, and could have proceeded from no other acts. Hexter v. Knox, 63 N. Y., 561; Mayers v. Burns, 35 Ib., 269; Van Wyck v. Allen, 69 Ib., 61; Parks v. Morris Ax Co., 54 Ib., 586. In Van Wyck v. Allen cabbage seed sold were warranted to be of a particular kind. When sowed they produced an inferior crop. Held that the damage was the difference in the value of the crop raised and that which would have been raised if the seed had been according to warranty. The objection was made in this case that it by no means followed that if the defendant had obtained the original seed he would have raised any crop at all; but the court took the view that as the vendor had broken his contract he could make no such defence, and it was not incumbent upon the plaintiff to prove absolutely, what was clearly impossible, that he could have raised and sold a crop from the seed contracted for. In Parks v. Morris Ax Co., 54 N. Y., 586, bad steel was sold to the plaintiff, who manufactured it into axes. Held, that his damage was the difference between the value of the manufactured product and what its value would have been had he received good material from the defendant. The rule as to what damages can be recovered for breach of contract is well laid down in Allen v. McConike, 124 N. Y., 342. The court say at page 347, “ The general rule for determining the amount of damages recoverable for the violation of a contract or the breach of a duty, is that the injured party is entitled to such as are the natural (or to be apprehended), direct and immediate results of the breach.” Citing, Griffin v. Colver, 16 N. Y., 489, and other cases. It is certainly the direct and natural result of refusal to allow the premises to be seen that no one would rent them. The contract was made to give an opportunity for renting the premises in the ordinary way, and the parties clearly had in mind this object. They drew the contract so that the right to show the premises might exist, and a remedy be afforded for a failure to comply therewith. It would probably surprise a plain man to be told that where a tenant had made a contract to allow the-premises to be billed “To Let ” and shown to applicants,' and then refused to permit these things, and the property remained unrented thereafter, although the landlord diligently attempted to rent the same, that the vacancy was not produced by the refusal to allow the premises to be shown. The burden of proof was on the defendant to show, that the failure to let did not proceed from his acts, the plaintiff having proved diligent effort to rent the premises.
    ' II. The verdict was clearly in accordance with the evidence. It does substantial justice, and the judgment should be affirmed. The case was tried with great liberality towards the defendant by the court. The complaint alleged breach of contract by failure to allow the premises to be billed and .shown to persons desiring to rent. The only defence, was a denial, no special defence being set up. Notwithstanding this fact, the court allowed the defendant to give evidence of attempts to rent the premises and to furnish a tenant to the plaintiff long prior to the breach alleged.
   By the Court.—McAdam, J.

Liability for breach of covenant is less extensive than that for a tort, and involves only such consequences as are the direct and proximate result of the act complained of. There are certain arbitrary rules in regard to such breaches, the principal of which is to give compensation for what is actually lost, to make the damages correspond with the real injury sustained, but not to permit a recovery where the loss cannot be directly traced to the act done or omitted. It will be sufficient if the injury is a natural or necessary consequence of the act, but remote or merely possible consequences are excluded from consideration. There are many cases of loss for which the law affords no adequate remedy, hence has arisen the system of preventive justice administered in the courts of equity, by means of injunction to restrain breaches of covenant. Covenants not to sub-let or assign have not generally raised any question of damage, but one of forfeiture (3 Sutherland on Dam., 143), owing to the difficulty in establishing any legal measure of compensation for the breach. The question involved here is much like that suggested. There is no reasonable certainty that the plaintiff would have let the house if the covenant said to have been violated had been literally performed. Sometimes the condition of the inside of a house is more uninviting than the outside, and an inside examination (if one had been afforded) might have repulsed the applicant for the house at once. There was therefore no solid substantial basis on which the jury could find as matter of fact that the refusal to perform the covenant was the sole cause of keeping the plaintiff’s house idle for five months, and that the plaintiff as a consequence lost so many months’ rent. The result arrived at was necessarily speculative and conjectural. If the action had been founded on tort, instead of upon contract, a more liberal field for the exercise of discretion would haAre been afforded to the jury, but they were limited in this case to the awarding of compensation for the actual, not the possible loss, and there is no way of determining from any of the evidence adduced that the sum awarded was necessary to compensate the real injury done or that the acts of the undertenant were the proximate cause of so much damage. It is owing to the impossibility to arrive at a legal measure of damages with any sufficient degree of certainty that courts of equity .entertain jurisdiction in such cases {Pom. Eq., § 1403), and by writ of injunction in the nature of specific performance enforce the terms of the covenant. This could have been done here by enjoining the defendant and his tenant from preventing the plaintiff putting up the bill of “To Let ” or from interfering with it after it was put up, or from exercising its right of showing the premises during some reasonable hour of the day to be determined by the court, and best calculated to serve the object of the covenant and the convenience of all concerned. The court gives specific performance instead of damages when it can by that means do more perfect and complete justice, and the covenant sought to be compensated by damages, could have been more effectually enforced at the time with perfect and complete justice in equity, than it can now by the uncertain character of proof available in an action at law for compensatory damages.

A man who enters into an agreement is bound in equity to a true and Hteral performance of it. He cannot be suffered to depart from it at pleasure, leaving the other party to his remedy for damages by law. Kerr on Inj., 534. It is no answer to say that the act complained of will inflict no injury on the plaintiff, or will be even beneficial to him. It is for the plaintiff to judge whether the agreement shall be preserved as far as he is concerned, or whether he will permit it to be violated. lb., p. 533. There is no wrong without a remedy, which means its appropriate remedy, and where that is to be found in equity it should be sought for there, or the plaintiff may be referred to Injuria absque damno or some other maxim which may defeat his recovery at law. There was nothing in the proofs presented to warrant the damages allowed to the plaintiff, and for this reason, the judgment and order appealed from must be reversed and a new trial awarded, with costs to the appellant to abide the event.

Sedgwick, Ch. J., and Freedman, J. concurred.


text:
    THE SWAN LAMP MANUFACTURING COMPANY, Respondent v. THE BRUSH-SWAN ELECTRIC LIGHT COMPANY OF NEW ENGLAND, Appellant.

      Complaint for goods sold and delivered sufficient to cover a special contract of sale of merchandise at a discount of 20 per cent, from trade prices, on ninety-day drafts.

      Meld, that the transaction between the plaintiff and defendant was practically a sale of goods by the former to the latter on its credit at twenty per cent, less than trade prices, deliverable in such manner as defendant directed.
    The defendant insists that, under the circumstances, the plaintiff should have declared on this special agreement and cannot recover on a general count for goods sold and delivered. The Code has not changed the former rule of pleading, that a party, who has fully performed a special contract may rely upon the implied assumpsit of the other party to pay him the stipulated price, and he is not bound to declare specially upon the special agreement. Under this rule the complaint was sufficient.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.

      Decided May 2, 1892.
    Appeal from a judgment entered in favor of the plaintiff on the report of a referee, to whom it was referred to determine the issues.

      Cravath & Houston, attorneys, and John W. Houston of counsel, for appellant.

      G. H. & F. L. Crawford, attorneys, and G. H. Crawford of counsel, for respondent.
   By the Court.—McAdam, J.

It is alleged by the defendant and admitted by the plaintiff that the goods furnished by the plaintiff were delivered under and pursuant to a contract between the defendant and the Swan Incandescent Electric Light Co., which was transferred by that company to the plaintiff, so that the plaintiff for all practical purposes was substituted as a party to the contract in place of that corporation. The defendant by the contract became the solé agent for the sale of electric lamps and other .electrical apparatus manufactured by the plaintiff, which agency covered certain territory specified in the agreement. The plaintiff was to deliver such goods as might be sold by the defendant and ordered by it on board of such cars or other conveyances as it might designate, and the defendant was to be allowed on such sales a discount of twenty per cent, from the trade price fixed by the plaintiff. The goods so delivered were to be paid for by the defendant, by ninety-day drafts, or at its option, in cash with one and a half per cent, additional discount. The plaintiff filled orders furnished by the defendant, until it became indebted in the amount found due by the referee. The transaction between the plaintiff and defendant was practically a sale' of goods by the former to the latter, on its credit, at twenty per cent, less than trade prices, deliverable in such manner as it directed. It certainly was not a sale of goods by the plaintiff to the defendant’s customers, for the plaintiff by the contract was to make no sales in the territory assigned to the defendant, except through it and on its responsibility. The defendant insists that the plaintiff should have declared on the special agreement, and could not recover as for goods sold and delivered. The answer to that objection is, that the Code has not changed the former rule of pleading, that a party who has fully performed a special contract on his part may count upon the implied assumpsit of the other party to pay him the stipulated price, and is not bound to declare specially on the agreement, Farron v. Sherwood, 17 N. Y., 227 ; Hosley v. Black, 28 Ib., 443; Higgins v. Newtown & F. R. R. Co., 66 lb., 604. The evidence adduced satisfactorily sustains the findings and conclusions of the referee, and we find no error in the rulings that require a new trial. The objection that as to a portion of the goods, the credit of ninety days had not expired when the action was commenced, is unavailing because not raised by the answer, Smith v. Holmes, 19 N. Y., 271. This upon the ground that new matter must be pleaded, Code § 500, subd. 2. It follows that the judgment appealed from must be affirmed, with costs.

Sedgwick, Ch. J., and Freedman, J., concurred.