text:
    SIGMUND KLEINBERGER, Respondent, v. HARRIS BROWN, et al., Appellants.

      Chattel mortgage. After default the title to the property mortgaged becomes absolute in’ the mortgagee.

    In September, 1887, one Anna Anstead purchased from plaintiff certain goods and chattels for $1,000, and paid $500 cash and executed and gave ten promissory notes for the sum of $50 each and a chattel mortgage to secure same; one of said notes being made payable every month thereafter^' Two of said notes were paid but there was a default in the payment of the third note that became due December 23, 1887. The mortgage was duly filed September 25, 1887, in the office of the register. Subsequently, and about December, 9,1887, Mrs. Anstead executed and delivered to defendant, Harris Brown, another chattel mortgage on the same property,and he foreclosed the same and sold the property on or about December 31, 1887, without any regard to plaintiff’s mortgage or to his title to the property described therein. There was some difference in the statements of the witnesses as to the exact date of the sale, one testifying to December 22, another that it occurred near the close of December, while the notice of sale printed in the N. T. Staats Zeitung of the 29th of December, 1887, which was introduced and proved on the trial, named Saturday, the 31st of December, as the day of sale.

      Held, that as the defendant Brown claims only through the mortgagor, Anna Anstead, and as she had no title nor interest in the mortgaged property after December 23, 1887, the act of the defendants in taking and selling the mortgaged property after that time was a conversion.

      Also held, that there being conflicting evidence as to the exact date when the defendants took possession of the property, if defendants desired to have that question determined by the jury, they should have made a request to have it submitted, but no such request was made. The defendants moved that the complaint be dismissed, which was properly denied, and the court then instructed the jury to find for the plaintiff. An exception to this direction does not raise any question for review.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided March 4, 1890.
    Appeal from a judgment, entered at trial term upon the verdict of a jury, and from an order denying defendants’ motion to set aside the verdict and grant a new trial.

      Louis Levy and Julius Levy, attorneys, and Smith Tuttle of counsel, for appellants, argued
    That if the mortagor be in possession before default in payment of the mortgage and before demand of possession by the mortgagee, that such interest of the mortgagor is subject to the claims of creditors ; accordingly, if Mrs. Anstead, at the time of the foreclosure of the Brown mortgage, had a leviable interest in the goods and chattels covered by the plaintiff’s mortgage, the defendants had the right to enter the premises where said goods and chattels were, and upon default in the payment to seize and sell the goods and chattels ; in other words, the defondants had a right “ to sell the interest of the mortgagor and deliver the property to the purchaser, and the purchaser was warranted in taking it into his possession and using it for the purposes to which it was adapted until the day of payment. And he had, moreover, a right to pay the mortgage debt, and thus extinguish the lien.” Hull v. Carnley, 11 N. Y.5 06. Hathway v. Brayman, 42 lb. 322; Harnill v. Gillespie, 48 lb. 556. It becomes, therefore, an exceedingly important question in this case as to whether or not the mortgagor was in possession at the time of the seizure or entitled to the possession for a definite period as against the mortgagee Kleinberger. The evidence is conflicting as to when the defendants made a demand and put the mortgagor in default. Mrs. Anstead testifies that the foreclosure sale took place on the 22d day of December ; that demand was made two or three days previous. Mr. Spier testifies about the same date. Mr. Myers, the other defendant, testifies to about the same date as being near the close of the month of December, but by all the evidence in the case the mortgagor was in possession," and the mortgagee had not made any demand for the mortgaged property. This question therefore should have been submitted to the jury under proper instructions, as it was the most material one in the case, and decisive of the right of the defendants. If the jury believed that the mortgagor, Mrs. Anstead, was in the rightful possession of the mortgaged property at the time of the seizure by the defendants, then they were entitled to a verdict. This the learned judge refused to submit to the jury and the defendants duly excepted.
    II.—There is not the usual provision in the mortgage, given by Mrs. Anstead to the plaintiff, by which the whole amount secured to be paid should become due upon default in the payment of any one of the notes ; the last note was not due until July 23, 1888, and consequently there could be no default in respect to the whole sum until that date; and the mortgagor was entitled to remain in possession until then. Parker v. Paschall, Gen. T. Com. Pleas, 5 N.Y. Legal Obs., 418, which holds, “ where a chattel mortgage is for a certain sum to be paid in installments until the whole is paid ; and, in case of default of the payment of said sum, the mortgage to be forfeited. The mortgagee is not entitled to take the property until default has been made in the payment of all the installments and the whole sum is due.”

      Abraham L. Jacobs, attorney and of counsel, for respondent, argued :—
    I.—It is conceded that plaintiffs mortgage was a first lien on the chattels mortgaged and was executed to secure part of the purchase money therefor on the sale thereof by plaintiff, Mrs. Anstead, the mortgagor ; also that the mortgagor, Mrs. Anstead, defaulted in the payment of the third note which became due on December 23, 1887, thus making plaintiffs mortgage wholly payable by its terms and entitling him to absolute possession of the mortgaged property. Plaintiffs title to the chattels became, complete upon the failure to pay the installment then due and no action on the part of the mortgagor or any person claiming under or from her, could affect plaintiffs lien or right of possession. Judson v. Easton, 58 N. Y. 664 ; 1 Supm. Ct. (T. & C.), 559 ; 2 N. Y. Leg. Obs. 160 ; Willis v. O’Brien, 35 N. Y. Supr. 536 ; Hall v. Sampson, 35 N. Y. 274; Hathaway v. Brayman, 42 lb., 324 ; Wheeler v. Lawson, 103 lb., 40. The rule is clear that any interference with the mortgagee in possession or entitled to possession is unwarranted and a conversion. In this case there was no reversionary interest attacked, but plaintiff s right of possession was arbitrarily violated. Plaintiff’s mortgage became due December 23, 1887, by the mortgagor’s default, and notwithstanding this fact the defendants entered upon the mortgaged property and sold the same on December 31, 1887. While there is some conflict of defendant’s evidence as to the exact day of sale, the difference was substantially settled by the introduction of the New York Staats Zeitung of December 29, 1887, advertising the sale to take place on December 31, 1887. Plaintiff’s possessory rights having been violated by the defendants’ acts, they are guilty of conversion. Goulet v. Asseler, 22 N.Y. 225 ; Manning v. Monoghan, 28 lb. 585 ; Hathaway v. Bray man, supra.

    II.—The sale of the mortgaged property by the defendants was hostile to plaintiff’s rights. Without regarding plaintiff’s title in any manner, in fact entirely ignorant of plaintiff’s lien (to place the most charitable construction on the defendants’ conduct) the defendants entered upon the mortgaged property, and sold it at auction. No notice was given to the plaintiff and the property was immediately distributed and scattered in parcels among the many purchasers, who carried it away beyond the pow;er of the plaintiff. Where, therefore, the defendants act in hostility to plaintiff’s rights, the property is sold, distributed and scattered among bona fide purchasers without notice of plaintiff’s lien, the defendants are clearly liable. Hale v. Omaha Natl. Bk., 64 N. Y. 550 and cases cited, supra.

   By the Court.—Ingraham, J.

In Champlin v. Johnson, 39 Barb. 606, after a careful review of all the authorities, it was held that on a default in a condition of a chattel mortgage the title to the mortgaged property became absolute, and that the mortgagor had no interest in the property that could be sold on. execution ; that it made no difference, that the mortgagor remained in possession ; that a sale of the mortgaged property under an execution against the mortgagor was a conversion of such mortgaged property.

This case was cited with approval in Judson v. Easton, 58 N.Y. 664.

As the defendant Brown claims only through the mortgagor, and as the mortgagor had no title or interest in the mortgaged property after the 23d of December, 1887, the act of the defendant in taking possession of and selling the mortgaged property after that time was a conversion.

If defendant took possession of the property before December 23d, he was bound to return it to plaintiff on demand, and if he refused he was guilty of conversion. If he took possession after the 23d of December, the taking was a conversion and the defendant was in either event liable.

There was evidence that the sale under the mortgage took place on December 22d. There was also evidence that would justify a finding that it took place some days later and as late as December 31st,

If the defendants desired to have had that question determined by the jury they shouldhave made a request to have it submitted. No such request was made. The defendants moved that the complaint be dismissed, which was properly denied, and the court then instructed the jury to find for the plaintiff.

An exception to this direction does not raise any question for review. In Ormes v. Dauchy, 82 N. Y 448, Miller, J., says : “At the circuit, the judge directed a verdict in favor of the plaintiff, to which the defendants expected.

It is now claimed that the defendants having-relied upon their motion to dismiss the 'complaint and not having requested that any fact be submitted to the jury, it cannot be properly urged that there was any question of fact for the jury.

We think that the defendants should have asked to go to the jury upon the facts, and the exceptions to the rulings and direction of the court is not, under the circumstances, available. Dillon v. Cockcroft, 90 N. Y. 649.”

I do not think that any of the rulings on questions of evidence require that the judgment-should be reversed. I think, therefore, that the judgment should be affirmed, .with costs.

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


source: Caselaw Access Project

author: By the Court.—Truax, J.

license: Public Domain

text:
    WILLIAM J. BREWSTER, Plaintiff, v. GEORGE H. WOOSTER, Defendant.

      Contract or Agreement, joint and not several, cannot be enforced or recovered upon by one of the parties—Rescission, one of three joint contractors cwnnot rescind the contract without the consent 'of the other two joint contractors.

      Held, that the agreement in question was a joint and not a several agreement, on the part of Brown, Brewster and Bateman with defendant; and defendant was under no obligation to convey to them the property described in the agreement until each of the three persons had performed his part of the agreement; and there being no evidence of such performance there was no question that should have been submitted to the jury. The plaintiff could not recover damages as for a breach of the agreement,because there could be no breach on the part of defendant until B. B. and B. had performed or offered to perform their part of the contract, or defendant had waived performance or refused to perform on his part. The plaintiff being one of three joint contractors cannot rescind the contract without the consent of the other two joint contractors.
    AEefore Sedgwick Oh. J., Truax and Dugro, JJ.

      Decided March 4, 1890.
    This cause was tried at a trial term before a judge and a jury. The court directed that the' complaint be dismissed, and ordered the exceptions to be heard in the first instance at general term.
    On the 26th day of April, 1876, the defendant, George H. Wooster, entered into a written agreement, under seal, with the plaintiff, William J. Brewster, and Horatio Bateman and Henry S. Brown ; if was provided in said agreement that the said Wooster as party of the first part, should sell to the said parties of the second part, and the said parties of the second part agreed to purchase of said Wooster certain personal property, for which the said parties of the second part agreed to pay to said Wooster the sum $44,000, as follows : $10,000 thereof in satisfactory value by the said Henry S. Brown ; $8,000 thereof by conveying to said Wooster, free from all incumbrances at the date of conveyance except a mortgage for $9,500, the house and lot known as number 403 West 42nd street in said city ; the further sum of $9,000 thereof by conveying to said Wooster, free from all incumbrances except a mortgage for $10,000, the house and lot number 535 West 59th street in said city ; which two pieces of property were to be conveyed by the said William J. Brewster ;—and the further sum of $5,000 by conveying to said Wooster, free from all incumbrances, excepting mortgages to the amount of $11,750—a house and lot in East 77th street; and the further sum of $12,000 by conveying to said Wooster two houses and lots on the south side of West 133rd' street, about 100 feet west of 6th avenue, each of which houses was subject to a mortgage of $9,000—the last two pieces of property were to be conveyed by said Bateman.
    The time when the conveyances were to be made was fixed as of the 30th day of May, 1876.
    On the 2nd day of July, 1876, this agreement was modified by substituting certain other pronerty.
    Further facts appear in the opinion.

      Arnoux, Bitch & Woodford, attorneys, and William H. Arnoux of counsel, for plaintiff.

      Thomas B. Browning, attorney and of counsel, for defendant.
   By the Court.—Truax, J.

Under the agreements between the defendant and Brown, Brewster and Bateman, the defendant was under no obligation to convey to .the said Brown, Brewster and Bateman the property mentioned in the agreements until each of the three persons- above named had performed his part of the agreements ; that is,. the agreement on the part of Brown, Brewster and Bateman was a joint and not a several agreement; there was no evidence that would warrant the jury in finding that they had performed their part of the agreement, and, therefore, there was no question that should have been submitted to the jury. „

The plaintiff could not recover damages as for a breach of the contract, because there could be no breach on the part of the defendant until Brown, Brewster and Bateman had performed, or offered to perform, their part of the contract, Nelson v. Plympton Fireproof Elevating Co., 55 N. Y. 480—or the defendant had waived performance or had refused to perform on his part, Lawrence v. Miller, 86 N. Y. 131—in which event, such waiver of performance or refusal to perform must be alleged in the complaint and proved on the trial, Oakley v. Morton, 11 N. Y. 25.—which was not done in this case.

On the other hand the plaintiff on the trial sought to recover as on the rescission of the contract, but the. plaintiff who is but one of three joint contractors, is not entitled to rescind the contract without the consent of the other two joint contractors. The case does not show that plaintiff ever has obtained this consent, and if he were the only person who had contracted with the defendant, the contract could only be rescinded by the acts or assent of both parties thereto, The N. Y. Iron Company v. The Gilbert Elevated Railroad Co., 91 N. Y. 155—in which event the plaintiff would be restored to his original rights, which are to recover what he had paid on the contract. Battle v. The Rochester City Bank, 3 N. Y. 88.

. The evidence shows that plaintiff had paid nothing ; he had, however, conveyed to the defendant certain real estate, and in a proper case would be entitled to recover from the defendant the value of that real estate ; but there is nothing in the evidénce in this case that shows the value of the real estate conveyed to the defendant by plaintiff and therefore: no srim that plaintiff is entitled to recover is shown.

The exceptions of the plaintiff are overruled, and judgment is ordered for the defendant with costs and disbursements.

Sedgwick, Ch. J. and Dttgro, J., concurred.


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    WILLIAM WALLACE, et al., Respondents v. FREDERICK D. BLAKE, et al., Appellants.

      Contract of sale of goods, etc., claimed, to have been changed into a contract of consignment.

    The main question in controversy in this case was, whether the goods in question that were delivered to the defendants, were delivered as goods purchased by them or were delivered to be sold by the defendants for and on account of the plaintiffs. The court below refused to allow the defendants to show that the contract of sale had been changed into one of consignment, on the ground that such a defence had not been pleaded. Held on appeal, that the answer did not contain an allegation that it was agreed between the parties that the goods sold and delivered to defendants in March should be afterwards treated as goods consigned by the plaintiffs to the defendants, and did not warrant the admission of the evidence that was ruled out by the court,'nor was the defence thus sought to be proved by defendants on the trial admissible under the general denial. It was an affirma.tive defence and related to something that had taken place after • plaintiffs’ cause of action had accrued and should have been specially pleaded.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.

      Decided March, 4, 1890.
    This is an appeal from a judgment entered in favor of the plaintiffs on a verdict which was ordered" by the court; and from an order denying a motion for a new trial'.
    The action was brought to recover for goods sold and delivered.

      William C. Beecher, attorney, and C. Bainhridge Smith of counsel, for appellants.

      Norwood & Coggeshall, attorneys, and Carlisle Nor-wood, Jr. of counsel, for respondents.
   By the Court.—Truax, J.

The case shows that the plaintiffs sold and delivered to the defendants certain goods at an agreed price, but the defendants attempted to show that after the sale and delivery it was agreed between them and the plaintiffs that the contract of sale and delivery should be changed to one of consignment, and their exception to the refusal of the court to allow them to show this consignment presents the only point on which they ask this court to reverse the judgment, or, in the words of the counsel for the defendants, which are to be found on page 2 of his brief, “ the main question in controversy in this case is, whether the goods so delivered to the defendants were purchased by them, or whether they were to b'e sold by the defendants for and on account of the plaintiffs ? ”

The court refused to allow the defendants to show that the contract of sale had been changed to one of consignment, on the ground that such a defence had not been pleaded.

It was alleged in the complaint that on the 3rd, 10th, 17th, 24th and 31st days of March the plaintiffs sold and delivered to the defendants certain goods.

The answer sets up as a defence, and by way of counter-claim, that prior to the dates of the alleged transactions set forth in the said complaint, the plaintiffs had shipped to the defendants divers merchandise consisting of yarn which they had intended to sell to defendants, and which the defendants intended to purchase from them ; but after the receipt of the said yarn it was discovered, as was a fact, •that same was not such yarn as the plaintiffs had agreed to sell to the defendants, and thereafter it was agreed between the plaintiffs that. said yarn should not pass to the defendants as a sale thereof to them from the plaintiffs, but that same should be considered and thereupon become consignments of yarn to the defendants from the plaintiffs to be sold for the account of the plaintiffs by the defendants.

This is not an allegation that it was agreed between the plaintiffs and defendants that the goods sold and delivered to defendants in March should be treated as goods consigned by the plaintiffs to defendants, and did not warrant the admission of the evidence that was ruled out by the court as above stated ; it referred to other and to different yarn. In fact, the defendant, Blake, said that the complaints referred to were not of the March shipments, but of the same number,—they were not complaints of that particular yarn in the custom-house which was then intact and in bulk. Nor was the defence that the defendants sought to prove on the trial admissible under the general denial. It was an affirmative defence and related to something that had taken place after plaintiffs’ cause of action had accrued, and should have been pleaded.

The evidence excluded did not tend to controvert the material affirmative allegation of the complaint which was the allegation of sale and delivery. The ruling was in harmony with the decisions of the Court of Appeals in the cases cited by counsel for the defendants.

In the case of Hier v. Grant, 47 N. Y. 278,—which was also an action for goods sold and delivered, the defendants were allowed under a general denial to show that they had not purchased the goods, by showing that the person who purchased the goods was not at the time of the purchase the agent of the defendants. In that action it was claimed by the plaintiff that the goods were purchased by a person who was acting as agent of the defendants.

In the case of Schwarz v. Oppold, 74 N.Y. 307, the defendants were allowed to show that they had not made the note in suit, by showing that the words “ with interest ” had been added to the note after it was signed by them. This is not an affirmative defence like the one which the defendants sought to prove on the trial of this action.

The judgment and order appealed from are affirmed, with costs.

Sedgwick, Ch. J., and Dugbo, J., concurred.


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    JAMES A. HAMILTON, et al., AS TRUSTEES, &c., Respondents and Appellants v. THE MANHATTAN RAILWAY COMPANY, et al., Appellants and Respondents.

      Witnesses, what may be asked of them on cross-examination tending to show hostility to or bias in favor of one of the parties to the action—Damages sustained and recovery sought, how affected by statute of limitations.

    One of the questions presented by the exceptions of defendants was to the ruling of the court at trial term permitting witnesses to testify as to what, in their opinion, the rental value of plaintiffs’ premises would have been if the defendants’ railroad had not been constructed.

      Held, that the reasons and construction of the general term of the supreme court, of the First District in the Kinkele case, and the fact that there ‘is sufficient evidence to sustain the findings of damages, etc., in the case at bar, other than that to the admission of which exceptions were taken, justify the overruling of said exceptions in accordance with the suggestions contained in the McG-ean case. A witness may be asked questions on cross-examination, tending to show his hostility to or bias in favor of one of the parties to the action, and if he denies such hostility or bias, he may be contradicted by other evidence. Such is the general rule that has been so long established by the courts in the trial of cases that it should not be disturbed by the judges. Any change in the same should be left to the Legislature.

      Held also, that no recovery can be had for damages that arose more than six years prior to the commencement of the action; but all damages sustained within the said six years may be recovered under a lease that was made more than six years before the commencement of the action, but after the construction of the elevated railroads. Damages sustained during any particular period embraced within the six years, may be recovered.
    Before Freedman and Truax, JJ.

      Decided March 4, 1890,
    Appeals by both parties from judgments in Actions Nos. 3 and 4, entered upon findings at equity term.

      The plaintiffs appeal from all portions of the judgment in which it was adjudged that plaintiffs were not entitled to recover for any damages that occurred prior to May 1, 1883, and defendants appealed from both judgments.

      Burnett &. Whitney, attorneys, and Henry L. Burnett and Edtoard B. Whitney of counsel, for plaintiffs-respondents and appellants.

      Davis &. Rapallo, attorneys and of counsel, for defendants - appellants and respondents.
   By the Court.—Truax, J.

Most of the questions that are presented on the defendants’ appeal have heretofore been decided adversely to the defendants, and a further discussion of them is unnecessary.

The question presented by the exception of the defendants to the ruling of the court permitting witnesses to testify what, in their opinion, the rental value of plaintiffs’ premises would have been if the defendants’ railroad had not been constructed, has lately been decided by the general term of the supreme court in the First Department adversely to the defendants. Kinkele v. Manhattan Ry. Co., 55 Hun, 398.

The reasons assigned in that case, and the fact that there is plenty of evidence to sustain the findings of damages other than that to the admission of which exceptions were taken by defendants, warrant us in overruling such exceptions, and in doing this we follow the suggestion contained in the McGean case.

The defendants put a witness on the stand who testified that during the trial he went to the property described in the complaint and asked to be admitted so as to make observations, but the proprietor, Mr. O’Brien, who had been called by plaintiffs as a witness in their behalf, refused to admit him. The defendants then asked their witness to state the reasons he, O’Brien, gave ; this question was objected to and excluded, and the defendants duly excepted. It was stated by defendants’ counsel that the object of the question was to show the animus of O’Brien in the case.

I have always understood the rule to be, that a witness may be asked questions tending to show his hostility to or bias in favor of one of the parties to the action, and if he denies such hostility or bias, he may be contradicted by other evidence, and such is the rule laid down in the following cases. Long v. Lambkin, 9 Cush. 361 ; Atwood v. Welton, 7 Conn. 66 ; Starks v. People. 5 Den. 106 ; Newton v. Harris, 6 N. Y. 345 ; Campbell v. State, 23 Ala. 44 ; Schultz v. Third Ave. R. R. Co., 89 N. Y. 242.

In a civil action, says G-reenleaf, a witness may be asked if he has not expressed feelings of hostility to one of the parties, and if he denies the fact he may be contradicted by other witnesses. 1 Greenl. on Ev., § 450.

It is true that it was said in Schultz v. Third Ave. R. R. Co. supra, that it is always competent to show that a witness produced upon the trial of an action is hostile in his feelings toward the party against whom he is called to testify, or that he entertains malice toward that party, and many cases were cited in support of that proposition, but in all of the cases cited except one the witness whose bias was attempted to be shown either was a party to the action or was first questioned in reference to his feelings of hostility toward the party, and such was the course of procedure in the Schultz case itself, and in the excepted case it does not appear whether the witness had or had not first been examined in regard to the alleged statement of hostility.

The rule is stated in 2 Phillipps on Ev., 902, as follows : On the cross-examination of a witness, it will be permitted to ask him as to any vindictive expressions he may have used towards other persons, where the use of such expressions would affect the character or credit of the witness : but a witness cannot be asked as to such expressions used by another witness, on other occasions than that which is the subject of the trial, such expressions being only matter for the cross-examination of the witness himself.

Stephen in his Digest of the law of evidence says, (Art. 130): “ when a witness is asked under cross-examination (certain questions)......no evidence can be given to contradict him except in the following cases :—(2). If a witness is asked any question tending to show that he is not impartial, and answers it by denying the facts suggested, he may be contradicted.” (See also sec. 177. of the Draft Revision of the Commissioners appointed pursuant to chap. 124 of the Laws of 1887 to revive the laws relating to evidence.)

Whatever may have been the reason of the rule, it is a rul e that has so long obtained in the trial of causes that it should not be disturbed by the judges ; but, if wrong in principle it should be left for the Legislature to correct.

The reason of the rule, I venture to suggest, is that a witness must be examined in reference to the facts in issue, facts relevant to the issue, or facts deemed to be relevant to the issue. The facts in issue are the facts which are affirmed on the one side and denied on the other ; a fact is relevant to the issue when it proves or. tends to prove the existence or non existence of a fact in issue: certain facts which show title, custom, motive, preparation, subsequent conduct, and explanatory statements, certain facts joining part of the same transaction or facts in issue and certain acts of conspirators, are deemed to be relevant to the issue. Now the credibility of a witness is not one of the facts above referred to, but by well established precedent a witness may be asked on cross-examination, (and on cross-examination only), in addition to the questions above referred to, any questions which tend to test his accuracy, veracity or credibility ; or to shake his credit, by injuring his character, but he cannot be compelled to criminate himself. (Stephen's Dig. Art., 127, 2, 1, 3, 4, 5, 6, 7, 129, and 120.)

Witnesses have been asked questions tending to show that a party to an action has expressed feelings of hostility toward his opponent, without interrogating such party in reference thereto, and the answers to such questions have been admitted; but such questions have been admitted because they tend to show another motive for bringing the action, than the desire to enforce legal or equitable rights, and it is not necessary that the party should first have been interrogated in reference thereto, for the answers to such questions may be admitted in evidence although the party to whom they refer has not been examined as a witness.

The trial judge found, as matter 'of fact, in Action No. 3, that prior to April 4,1882, the premises in suit had been leased until May 1,1883, by certain executors, (predecessors in title of the plaintiffs,) under which lease the tenants occupied the said premises for the said term, and that the damage to the rental value of said premises caused by the defendants from April 4, 1882 to. May 1, 1883, was $ 500, but he found as matter of law that plaintiffs were not entitled to recover this sum of $ 500.

A like question arose in action No. 4. The right of a plaintiff to recover his damages in such a case, except so far as it may be barred by the statute of limitations, has been upheld by the general term of this court in the case of Mortimer v. The Manhattan Railway Co., 57 Super. Ct. 509.

In the case at bar it is claimed, however, that the action having been commenced April 4, 1888, the statute of limitations is a bar to any recovery for the period between April 4, 1882, and May 1, 1883, and this claim, as well as the ruling of the learned trial judge who sustained it, rests on the theory that the statute runs not from the day of the injury but from the date of the last prior lease. This is erroneous. The cause of action for a continuing tort, and this is what the acts of the defendants constitute, accrues afresh from day to day so that the statute of limitations commences to run each day against that day’s damage. No recovery can therefore be had for damages which arose more than six years prior to the commencement of the action. On the other hand all damages sustained within the six years may be recovered under a lease made more than six years before the commencement of the action, but after the construction of the elevated railroads, it may be more difficult than in another case to ascertain the precise amount of damage sustained during any particular period embraced in the six years for which damages may be recovered, but that difficulty is no reason for a refusal by the court to award any damage whatever. Fortunately the facts have been fully found, so that the judgment may be made to conform to them. Price v. Price, 33 Hun, 432.

The judgments should be modified by adding to plaintiffs’ damages $ 500, in action No. 3, and $ 545, in action No. 4, and, as so modified, the judgments should be affirmed with costs. But plaintiffs should have only one bill of costs in each case upon both appeals.

Freedman, J., concurred.


text:
    ALBERT J. RISS, Respondent, v. DANIEL MESSMORE, Appellant.

      Breach of warranty, damages for.— Counter-claim in answer for purchase price of article warranted not allowed.

    The action was brought to recover damages for a breach of warranty of a lintel sold to plaintiff by the defendant. Because of a defect in the lintel, the walls of the building into which the same was placed fell. The referee found that plaintiff was entitled to recover the damages caused by the fall with interest. Held, that the referee did not err as to his finding of the damages, but erred in giving interest on the same.
    The referee also allowed plaintiff as damages, the rental value of the house for two months. Held, that there was no evidence to sustain this finding. Held also, that defendant was not entitled to recover the contract price of the lintel as a counter-claim, because he had not delivered the same as he had agreed, and because there was no evidence of the value of the same. Held also, that the judgment should be reversed, unless plaintiff stipulates to reduce the same by a deduction of $852,73, and in case of the reduction, judgment affirmed without the costs of appeal.
    Before Tbuax and Dugbo, JJ.

      Decided March 4, 1890.
    Appeal from a judgment entered on the report of a referee.
    The action was brought to recover damages for a breach of a warranty of a lintel sold to plaintiff by defendant. The defendant by counter-claim sought to recover the purchase price of the lintel.

      Moody B. Smith, attorney and of counsel, for appellant.

      Rollin E. Beers, attorney, and Charles S. Miller of counsel, for respondent.
   By the Court.—Truax, J.

We do not think that the referee erred in finding, as matter of fact, that the walls of the building into which the lintel was put fell because of a defect in the lintel, and that plaintiff was entitled to recover from the defendant the damages that were caused by the fall of the lintel. But we think that the referee erred in giving plaintiff interest on the damages that he sustained by reason of the breach of warranty. ' It was held by the Court of Appeals in White v. Miller, 78 N.Y. 393, that interest should not be allowed as damages for a breach of warranty in the sale of goods.

The referee also allowed plaintiff as damages the rental value of the house for two months. There is no evidence to sustain this finding in its entirety. The plaintiff’s only witness on this point testified ( fol. 87) “ if we had not let the house it could have been done two months later, the 1st of July.” This, at the most, would only warrant the referee in giving plaintiff the rental value of the house from the first of July and not from the first of June.

The referee did not err in refusing to allow defendant his counter-claim. He was not entitled to recover the contract price because he had not delivered the thing he agreed to deliver, and he was not entitled to recover its value because there is no evidence of its value.

Our attention has been called to but one alleged error relating to the evidence. One of plaintiff’s witnesses testified that he was on the ground after the front of the building had fallen and examined the “ lintel that we all supposed was the cause of its falling,” and defendant’s counsel moved to strike out the words “ that we all supposed was the cause of its falling,” This motion was denied and defendant excepted to the ruling of the referee. We do not think that the judgment should be reversed because of this ruling. A number of witnesses had testified that the lintel was the cause of the fall, and the witness was only referring to that fact. But if this phrase were out of the case, the testimony remaining in the case would sustain the finding of the referee on this point.

Judgment reversed unless the plaintiff stipulates to reduce the judgment by deducting there from eight hundred and fifty-two dollars seventy-three cents, in which event judgment is affirmed without the costs of this appeal.

Dugro, J., concurred.