author: O’Gorman, J.

text:
    BENJAMIN W. FRANKLIN, Respondent, v. MARY C. BROWN, Appellant.

      Landlord and tenant—No implied covenant as to fitness of premises as dwelling-house—Noxious odors and gases.

    There is no implied covenant on the part of the landlord that premises let for a private residence, are fit for such purpose.
    Accordingly, where plaintiff let to defendant premises to be used by the latter as a dwelling-house, and defendant is forced to move therefrom, before the expiration of the term, by reason of noxious gases and odors, arising from adjacent premises, and of which both parties were ignorant at the time of the letting, defendant cannot set up as a counter-claim the damages caused thereby, in an action brought by the landlord for rent.
    The rule is the same though the premises be let furnished, to be used as a private residence only.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.

      Decided July 2, 1886.
    Appeal by defendant from judgment entered upon the report of a referee.
    Action to recover rent for three months, claimed to be due plaintiff by defendant, according to the terms of a written lease, of the dwelling-house, No. 6 West 17th Street, in this city'.

      The defendant admitted the living in and occupation of the house as stated in the complaint, but alleged as a counter-claim that by reason of the existence of noxious gases and stench in and pervading the house, she became so ill that she was obliged to leave it, and to incur various medical and other expenses necessary to her cure, which amounted to more than the rent claimed to be due. The referee found that during the times covered by the lease, noxious gases and vapors and unhealthy odors existed throughout the house in very large quantities, and made it impossible for the defendant to use the furniture therein without injury to her health ; that in attempting to use such furniture her health was injured by the vapors, odors and gases ; that the furniture in the house was an important - element in determining the consideration to be paid by defendant to plaintiff; that the house was unhealthy during the period covered by the lease, and not in fit condition to be inhabited by the defendant without danger to her health ; and that the house, its fixtures and furniture were let to defendant for a private dwelling-house to be used by her as a private residence only.
    The referee found also that the defendant incurred medical expenses which were the immediate and necessary result of her living in said house, and that she incurred certain hotel expenses, while she was unable to live in the house by reason of its unhealthy condition. He found, however, that the noxious gases did not arise from the house itself, but came from the adjoining premises, which were used as a stable, and that neither the plaintiff nor the defendant knew of the existence of these noxious gases, &c., in the house prior to the defendant signing the lease.

      John G. Agar, for appellant:

    If a person contracts for a consideration to let another use a furnished dwelling-house for a particular purpose, e. g., dwelling therein as a private residence, he impliedly warrants the use for that purpose for which he receives the consideration, free from all defects and incumbrances. (1) Contracts for the letting and hiring of ready furnished houses and apartments are contracts of a mixed nature, partaking partly of a demise of realty and partly of a contract of letting and hiring of movable chattels. The lessor, therefore, in such contracts, is clothed with the obligations resulting from the contract of letting and hiring of chattels, in addition to those which have been acknowledged to flow from the demise of realty simply. (1 Addison Contr. 446-7; 1 Washburn Real Prop. 544; Taylor Landlord & Tenant, § 382). (2) A person who lets a chattel for hire for a particular purpose, and imposes an obligation upon the hirer that it shall be used for no other purpose, intends that it shall be fit, and impliedly represents, and therefore impliedly warrants, that it is fit for that purpose (Harrington v. Snyder, 3 Barb. 38 ; Horn v. Meakin, 115 Mass. 330; Fowler v. Locke, 7 L. R. Comm. Pleas, 280 ; 1 Addison Contr. 510; Edwards Bailments, 374; Story Bailments, § 383, 9 ed.). (3) The plaintiff intended and represented the furniture in this house to be applicable to the use of a dwelling-house, by covenanting with defendant that she should use it for no other purpose. (4) The breach of the implied covenant of warranty is sufficient to predicate defendant’s counter-claim upon (Mayor v. Mabie, 13 N. Y. 151). (5) Smith v. Marrable (11 Mees. & W. 5), was an action for use and occupation of furnished house. The house was infested with bugs and unfit-for occupation, and the tenant quit. Held, that there is an implied condition in letting a furnished house that it shall be reasonably fit for habitation. If not, tenant may quit. See also to same effect Sutton v. Temple (12 Mees. & W. 60); Campbell v. Lord Wenlock (4 Foster & Finlanson, 716); Wilson v. Hatton (E. L. R. Exch. Div, 336). This law has been approved in America, in Dutton v. Gerrish (9 Cush. 94); Howard v. Doolittle (3 Duer, 469); Cleves v. Willoughby (7 Hill, 88 ; 1 Washburn Real Prop. 544; Taylor, Landlord & Tenant, § 382 ; 3 Kenfs Comm. 469, note b). It has been criticised in Chadwick v. Woodward (13 Abb. N. C. 441). But that case is wanting in every element which distinguishes the English cases, and makes them resemble the case at bar.

      Augustus H. Vanderpoel and Delos McCurdy, for respondent:
    In the English cases cited by appellant, the houses were rented for a brief period as summer residences, and, as the court assumed, were represented by one party and understood by the other to be in suitable condition to be used as residences during the short period for which they were to be occupied, and the actions were for damages for use and occupation. Parke, B., states (Sutton v. Temple, 12 Mees. & W. 60), that in order to support the doctrine of Smith v. Marrable, Edwards v. Etherington, Collins v. Barrow, &c., it is necessary to import into the cases the fact, “that there was some default on the part of the landlord, in not making the premises fit for occupation, pursuant to an express contract to do so.” And further, the case of Smith v. Marrable is understood to have been distinctly overruled by the subsequent cases of Sutton v. Temple (12 M. & W. 60), and Hart v. Windsor (12 Ib. 68); Francis v. Cockrell (L. R. 5 Q. B. 501); Carson v. Godley (26 Penn. St. 111) ; Howard v. Doolittle (3 Duer, 464); Dutton v. Gerrish (9 Cush. 89) ; Foster v. Peyser (9 Ib. 242) ; Royce v. Guggenheim (106 Mass. 201); Edwards v. N. Y. & H. R. R. Co. (98 N. Y. 245).
    II. The rule of law is well settled in this state that upon the letting of a dwelling-house there is no implied warranty of its fitness for the purpose for which it was let (Jaffe v. Harteau, 56 N. Y. 398 ; Cleves v. Willoughby, 1 Hill, 83 ; Mumford v. Brown, 6 Cow. 415 ; Westlake v. Degraw, 25 Wend. 669 ; Chadwick v. Woodward, 13 Abb. N. C. 441; Coulson v. Whiting, 14 Ib. 60 ; Sutphen v. Seebass, 14 Ib. 68 ; Edwards v. N. Y. & H. R. R. Co., 98 N. Y. 245).
    III. It was claimed below that because furniture was included in the lease the contract was taken out of the ordinary rule of law, and an implied warranty raised that the house itself was and would continue to be fit for the purpose for which it was let. No such rule of law exists in this state or elsewhere. The maxim caveat emptor applies to the transfer of all property, real, personal and mixed, and the purchaser takes the risk of its quality and condition unless he protects himself by an express agreement to the contrary. The only exceptions are believed to be a sale by sample, a sale of goods for a particular purpose, an executory contract to manufacture an article for a specific use and a sale of provisions for domestic use.
    IV. Even if the lease of these premises had contained an express covenant that the house was and would remain fit for habitation, such covenant is not broken by a nuisance arising in the-neighborhood not caused by the landlord or under his- control, even if such nuisance renders the house unfit for habitation (Cohen v. Dupont, 1 Sandf. 266 ; Royce v. Guggenheim, 106 Mass. 201; Pendleton v. Dyett, 4 Cow. 581 ; Edwards v. N. Y. & H. R. R. Co., supra). A covenant for quiet and peaceable enjoyment only secures the tenant from the lawful interruption of such enjoyment by persons having a title paramount to that of his landlord, or an interruption by the landlord, or those claiming under him, and not by a stranger (Gilhooley v. Washington, 3 Sandf. 330 ; Gilhooley v. Washington, 4 N. Y. 217; Townsend v. Gilsey, 7 Abb. N. S. 59 ; Ogilvie v. Hull, 5 Hill, 52; Egerton v. Page, 20 N. Y. 281 ; Wood’s Landlord and Ten. 801-804 ; Mortimer v. Brunner, 6 Bosw. 653).
   By the Court.

O’Gorman, J.

(After stating the facts as above.)-—There is sufficient evidence to sustain these findings of fact, and the only question of law which arises, is whether or no there was any implied covenant on the part of the lessor, plaintiff, that the house was fit for habitation as a dwelling-house, or whether any duty existed on his part towards the plaintiff, from the breach of which she incurred damages, which she was legally entitled to charge against him as a counter-claim in this action.

This question has, from time to time, been the subject of contention in the courts, both of England and of the United States. In this state, however, the conclusion may be fairly gathered from decisions of prevailing authority, that, in the absence of any covenant in the lease itself, as to the fitness of the leased premises for occupation as a dwelling, , no covenant of the lessor can be implied on the subject, and that unless by reason of direct or constructive fraud or culpable negligence on the part of the lessor, the tenant hires at his peril; and a rule similar to that of caveat emptor applies, and throws on the lessee the responsibility of examining as to the existence of defects in the premises and of providing against their ill effects.

There is no responsibility on the landlord in such cases, except such as arises from absolute delictum on his part (Jaffe v. Harteau, 56 N. Y. 398 ; Meeks v. Bowerman, 1 Daly, 99 ; Wallace v. Lent, Ib. 481 ; Coulson v. Whiting, 14 Abb. N. C. 60 ; Sutphen v. Seebas, Ib. 61). If, for instance, the landlord knew before, or at the time of the letting, that the premises were, by reason of some latent defects, unfit for occupation in the use for which they were hired, and he failed to disclose these defects, he would be guilty of negligence (Edwards v. R. R., 98 N. Y. 245). He would also be liable if the defect arose from his own wrongful act (Chadwick v. Woodward, 13 Abb. N. C. 441 ; Rhinelander v. Seaman, Ib. 455).

In Cesar v. Karutz (60 N. Y. 229), the plaintiff claimed damages from defendant on the ground that, being owner of a house, in certain rooms of which tenants had been recently ill of smallpox, he with knowledge of that fact, failed to disclose the same to the plaintiff, and leased to the plaintiff the rooms which had been thus occupied to the damage of the plaintiff. The court of appeals sustained a verdict for the plaintiff on these facts.

In the case at bar, however, the facts are not similar. Here, the plaintiff, lessor, and his tenant, the defendant, were, at the time of the execution of the lease, equally ignorant of the existence of the noxious gases and odors which rendered the premises unfit for the purposes of her living there, and no defect in the house itself was the cause of the mischief, but it was wholly attributable to the stench from the adjoining stable, and the stench increased in intensity after the plaintiff had for some time continued her occupation under the lease. Nor did the defects arise from any wrongful act or culpable negligence of the plaintiff.

On these facts the referee’s conclusions of law were proper and must be sustained. In Edwards v. R. R. (98 N. Y. 245, et seq.), the rule of law as to the. responsibility of the landlord is clearly laid down. “ The responsibility of the landlord is the same in all cases. If guilty of negligence, or other delictum, which leads directly to the accident and wrong complained of, he is hable ; if not so guilty, no liability attaches to him.

The judgment below is affirmed, with costs.

Sedgwick, Oh. J., and Truax, J., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    WILLIAM H. POWERS v. HENRY ELIAS.

      Chattel mortgage, mortgagor to remain in possession until due.-—-Surrender of possession before due gives absolute title, and mortgagor has no leviable interest— Whether surrender before levy or not may be question or fact for jury.—Money had and received, receipt of money claimed or its equivalent necessary—-Application of doctrine.

    In an action for money had and received, brought by a purchaser at a sheriff’s sale of certain property subject to a chattel mortgage (not due by its conditions), against the assignee of the mortgage for the amount alleged to have been received by him in excess of the mortgage debt, on a sale made by him of the property,—the following points were ruled:
    (1.) Prior to a chattel mortgage (by the conditions of which the mortgagor was to retain possession until it became due) becoming due by its term, the absolute title to the mortgaged property may become vested in the mortgagee by the mortgagor surrendering possession to the mortgagee; leaving in the mortgagor a naked equity of redemption which is not leviable.
    (2.) But whether such surrender was made before levy may be, and under the evidence in this case was a question for the jury; and the non-submission of that question in this case would have been error, for which the judgment entered on a verdict for defendant on direction of the court, under exceptions, would be reversed, were it not—
    (3.) That before the sale by the sheriff, the mortgagee had transferred the mortgage to the defendant who paid and satisfied the mortgage, and then sold the property to the wife of the mortgagor, and that the mortgaged property was not worth more than the mortgage; and that defendant had not in fact received any money from the property; which facts being undisputed called in this action for a judgment for defendant.
    (4.) That the defendant on the transfer by him, expressed in the bill of sale a larger consideration than the amount of the original mortgage, the excess representing money paid out by him in discharge of various claims against the mortgagor, one thereof being due him; does not (it being undisputed that the mortgaged property was not worth more than the mortgage) establish that he had received any money for plaintiff's use.
    Before Sedgwick, Oh. J. and O’Gorman, J.

      Decided July 2, 1886.
    Exceptions taken by plaintiff ordered to be heard in the first instance at general term, and verdict directed for defendant.
    The facts appear in the opinion.

      John Brooks Leavitt, attorney and of counsel for plaintiff.

      Guggenheimer & Untermeyer, attorneys and Samuel Untermeyer, of counsel for defendant.
   By the Court.

O’Gorman, J.

—The action was brought to recover $1,800, as money received by the defendant for the use of the plaintiff, or the lesser sum of $500 and interest, which plaintiff’s counsel in his brief submitted on this appeal, stipulates to receive in full satisfaction of his claim, if judgment absolute be rendered in his favor for the reduced amount.

The question for this court is whether, on the undisputed evidence, the plaintiff has failed to sustain his contention.

The facts are these: Before June 2, 1883, Joseph L. Mayer had been occupying the premises No. 48 Charlton street, where he had carried on the business of a hotel and liquor saloon. On July 2, 1883, he mortgaged certain of his chattel property, consisting of hotel fixtures and utensils, &c., to Robert Coles for $1,700. By the terms of the mortgage, the principal was not payable until May 1, 1885, and until that time, and a failure to make payment, Mayer was to ‘retain possession of the mortgaged property. Mayer becoming deeply in debt, and on March 2, 1884, he went away from New York, abandoned his business, and did not return for four or five months.. Before he went away, he had a conversation with his wife about this mortgaged property, in which he said to her, “You have got full charge of this. I do not want anything of it, and you must dispose of it to Mr. Coles, if you choose to do so.” Mr. Coles had then made demand on Mayer for payment of interest then due on the mortgage, and Mayer was not able to pay him. After this conversation, the wife of Mayer entered into full possession of the mortgaged property, with full right and power of disposing of the same as she chose, Mayer surrendering to her, all his interest therein. He never afterwards made any claim to ownership of the property, or in any way, attempted to revoke the right to possession thereof, which he in that conversation, transferred to his wife. Soon after that conversation, and on March 4 or 5 (the exact day is not certain), she transferred all the mortgaged property :to Coles, the mortgagee, who thereupon entered into absolute possession of the same, and used it in the hotel and liquor saloon business, which he .thenceforth carried on in the same premises, with the aid of the wife of Mayer, On March 5, one Chase recovered judgment against Mayer, and on the same day issued execution and placed the execution in the hands of the sheriff, who, on the same day, made a formal levy on all the right, title, and interest of Mayer in the property on the premises, including the said chattels covered by the mortgage to Coles, who gave notice to the sheriff of his claim to absolute ownership of the property. On April 17, 1884, the sheriff sold by auction all the right, title, and interest of Mayer in the mortgaged property to the plaintiff for $25.

The first question is, whether, at the time of the levy and sale,- there was any interest in Mayer, the judgment creditor, capable of levy and sale under execution. If not, then the plaintiff’s action must fail.

Until default made by Mayer, on May 1, 1885, the right to possession of the mortgaged property was vested in Mayer, and if this right had existed in him at the time of the levy, it was an interest in the property, which could be sold under execution. If, however, Mayer had surrendered the possession of the property to his mortgagee, even before default in payment of the principal on May 1, 1885, then the legal title would have become absolute in the mortgagee (Hill v. Beebe, 13 N. Y. 556), and there would have remained in Mayer only a mere naked equity of redemption in the mortgaged property, and that equity of redemption was not a proper subject of sale under execution (Hale v. Sweet, 40 N. Y. 97; Porter v. Parmley, 52 Ib. 185).

The questions as to whether Mayer’s wife, in pursuance of the authority vested-in her by him, had, before the levy was made, transferred the possession of the mortgaged property to the mortgagee, and whether he had thereafter retained actual possession thereof were material questions undetermined, and which, I think, should have been submitted to the jury (Hull v. Carnley, 11 N. Y. 501).

As to the validity of the mortgage, and its due and proper filing, there is no dispute.

Whether, in fact, a valid levy had been made on this mortgaged property by the sheriff before it was reduced into possession by Coles, the mortgagee, under the transfer made to him by the wife of Mayer, is a question by no means free from doubt on the evidence. It was held in Roth v. Wells (29 N. Y. 411), that the true test of a valid levy is whether enough had been done to subject the officer to an action of trespass, but for the authority of the execution.

The evidence in the case at bar as to the conduct of the sheriff’s officer on the occasion of his first visit to the premises, in which the mortgaged property was kept; his failure to take then open and manifest possession of the property, and his subsequent conduct in accepting money from Mrs. Mayer, from time to time, in consideration of his staying away, left a material question undetermined, which, I think, should have been also submitted to the jury under the direction of the court.

■ But, even if the facts were so found by the jury, that it should be held as matter of law, that a valid levy had been made, and that the title and right to possession of the mortgaged property became vested in the plaintiff, as purchaser at the sheriff’s sale, another material question of fact would still remain to be disposed of, that is, the amount of money, if any, which the plaintiff would be entitled to recover in this action.

It appears that after the sheriff’s sale, the plaintiff did not attempt to take possession of the mortgaged property, and that shortly before the sale it had been transferred by Coles, the mortgagee, to Elias, the defendant, who sold it to Mrs. Mayer by bill of sale, dated April 11, 1884, in which the consideration received by Elias is stated as $3,594.21. The mortgage to Coles was paid and discharged by Elias.

Plaintiff claims to recover from Elias all the money received by him over and above the amount paid in discharge of the mortgage, as money belonging to the plaintiff and received by Elias for the plaintiff’s use. But there is uncontradicted evidence that the mortgaged property was not worth more than $1,700, the amount of the mortgage, and Elias, in his testimony, explains the transaction which led to the sale by him to Mrs. Mayer, and shows that he did not receive any money from Mrs. Mayer, but that the consideration, as set forth- in the bill of sale, represents only an amount of money, in fact,"paid out by him in discharge of the mortgage, and in settlement of various other claims against Mayer.

The interest, if any, in the mortgaged property, which plaintiff acquired at the sheriff’s sale, and for which he paid $25, had not in fact, even in the aspect of the case most favorable to the plaintiff, that value or any substantial value. If he had then taken actual possession of the property, it was still subject to the mortgage, which would become due on May 1, 1885, and all the value of the property would have been exhausted in the payment.

His claim in this action is therefore for the recovery of money, which was never in fact received by the defendant for the use of the plaintiff or at all. There never was any balance in the hands of Elias, the defendant, arising out of the sale of the mortgaged property, and remaining after payment of the mortgage. The claim of Elias himself for $500 due him by Mayer was not paid out of any such balance.

The plaintiff has suffered no loss by any. act of the defendant, and his claim to recover from the defendant the amount set forth in his complaint, or any amount in this action, is not sustained.

This action is an equitable action, and presents the question, to which party, money, ex aequo et bono, belongs (Kingston Bank v. Eltinge, 66 N. Y. 625). It would be clearly inequitable and unjust to charge the defendant with the receipt of money, for the use of the plaintiff, which he never did in fact receive.

Plaintiff’s exception to the denial of. a verdict by defendant was not well taken, and judgment should be entered in favor of the defendant, on the verdict as directed, with costs.

Sedgwick,- Oh. J., concurred.


text:
    THE BENEDICT & BURNHAM MANUFACTURING CO., Respondent, v. DAVID J. HUTCHINSON, Impleaded, &c., Appellant.

      Estoppel.—Res adjudieata.—Special partnership.

    The receipt of a dividend under an order on an accounting in proceedings on an assignment made by A. and B., for the benefit of the creditors of said firm as a limited partnership, and an appearance in said proceedings, does not estop the creditor from bringing an action thereafter for the balance of the claim against all the partners, and enforcing the liability of 0., the alleged special partner, as a general partner, it not appearing that the court in said assignment proceedings had power to litigate the question whether C. was a general or a special partner, or that said question was in fact there litigated.
    Sharp *. Hutchinson 100 (N. T. 533); Durant «. Abendroth (9111). 132); and Magin v. Lawrence (45 Super. Ot. 235), followed as to what constitutes a sufficient payment of special capital under the statute relating to special partnership.
    Before Sedgwick, Oh. J., Truax and O’Gorman, JJ.

      Decided July 2, 1886.
    Appeal by defendant from judgment entered on a verdict for the plaintiff found on the direction of the trial judge, and from an order denying a motion for a new trial.
    Action against David J. Hutchinson, Alexander Hogg, and Alexander Patterson, as copartners, to recover $4,207.83, being the aggregate amount remaining due on account of certain promissory notes made by the firm of Hogg & Patterson, and payable to the plaintiff.
    Of this firm the plaintiff claimed that Hutchinson was a general partner, by reason of his having falsely stated in a certificate of special partnership filed by him, that he had contributed, as special partner, $10,000 to the common stock of the partnership, whereas, in fact, he then contributed only the sum of $8,000.
    The main defense relied on by the defendant Hutchinson was, that the plaintiff was estopped from maintaining this action because, in certain proceedings had in the court of common pleas, relating to a general assignment made by Hogg & Patterson, as general partners, and purporting to be for the benefit of the creditors of the firm of Hogg & Patterson, as a limited partnership, the plaintiff had presented the claim now in suit to the assignee for payment, and, during the pendency of this action, had received and accepted from the assignee $1,696.06 on account of its claim.

      George II. Forster, for appellant:
    I. The referee in the assignment proceedings refused to find the liability of Hutchinson as general partner for the copartnership debts. The question was litigated before the court on the plaintiff’s exceptions to these refusals to find. The court confirmed the referee’s conclusions and decreed accordingly. This decree was never reversed, but stands in full force. Even if the conclusions of law of the referee and the decree of the court were erroneous, yet the same can only be questioned by a direct appeal and a reversal, and cannot be questioned collaterally. The recital in the decree, that on May 12, 1881, Andrew H. Hogg and Alexander H. Patterson as copartners, under the firm name of Hogg & Patterson, at No. 17 West Houston street, New York city (although the issue as to whether one David J. Hutchinson was a general or a special partner in said firm, was not tried or determined by said referee and is not passed upon by this court), executed and acknowledged an assignment in writing, does not help the plaintiff. The plaintiff had a right to request findings of fact and conclusions of law, and it was the duty of the referee to note the manner in which' each proposition was disposed of. This determination by the referee, shown by the record and excepted to by the plaintiff, is not to be disposed of by such a recital in the decree. The plaintiff "was duly served with process, appeared by attorneys, took part in the proceeding; the appellant was also a party duly served with process, and the decree of the court of common pleas was a final adjudication between the parties by a competent tribunal, as to their rights. This court has no jurisdiction to try the question which has been so adjudicated (Norton v. Woods, 22 Wend. 522; White v. Merritt, 7 N. Y. 352 ; Demarest v. Darg, 32 Ib. 281; Gates v. Preston, 41 Ib. 113). This is so though the judgment is against the facts or without facts to sustain it (Hunt v. Hunt, 72 N. Y. 218 ; Jenkins v. Fahey, 73 Ib. 355 ; Jordan v. Van Epps, 85 Ib. 427; Glacius v. Fogel, 88 Ib. 435). The claim of Hutchinson, to share in the assigned estate as a creditor, necessarily involved the question whether or not he was such a creditor. If a general partner, he could not be such a creditor. The decree that he was entitled to a dividend as a creditor, necessarily involved then, a determination that he was not a general partner, and by this, however erroneous, plaintiff was bound until reversed on appeal. The adjudication in the court of common pleas, that Hutchinson was a creditor, is a defense to this action, both as an adjudication, and as the best evidence to be had on the subject, of whether he was, or not a general partner (Hunt v. Hunt, 72 N. Y. 230 ; Brown v. Mayor, 66 Ib. 390; Burckhead v. Brown, 5 Sandf. 134; Etheridge v. Osborn, 12 Wend. 403 ; Dunham v. Bower, 77 N. Y. 79 ; White v. Merritt, 7 N. Y. 352 ; Bellinger v. Craigue, 31 Barb. 537). Durant v. Abendroth (97 N. Y. 132), has no application because, unlike that case, here the creditors in question were parties to the proceedings, brought in by process, appearing by attorneys, and actually litigating the question.
    II. When the assignment was made, plaintiff was called on to elect, and it did so, and is now conclusively bound by that election. Were the partnership a general partnership, Hutchinson should have joined in the assignment, which he did not. After knowledge of this the plaintiff proved its claim against the estate, which was not assigned, if Hutchinson was a general partner, and when he did so it must be held to have claimed and elected to hold that Hutchinson was not a general partner (New York Fireman Ins. Co. v. Lawrence, 14 Johns. 55 ; Goss v. Mather, 46 N. Y. 689; 2 Lans. 283 ; Wright v. Ritterman, 1 Abb. N. S. 430 ; Cavanagh v. Morrow, Daily Register, July 15, 1884; Leading Cases Eq. W. & T. 541; note to Noyes v. Mordaunt, and Strutfield v. Strutfield ; Estate of James Burke, Parson Select Cases [Penn.] 470 ; Burrill on Assignments, § 478, 4 ed).

      Robertson, Harmon & Cuppia, and Roderick Robertson, for respondent:
    I. The defendants were liable as general copartners on .the ground that the special capital specified in the certificate and affidavit was not paid in, in cash, as required by law (2 R. S., chap. IV., tit. I; Durant v. Abendroth, 41 Super. Ct. ; affid, 69 N. Y. 148 ; Haviland v. Chase, 39 Barb. 283 ; Van Ingen v. Whitman 62 N. Y. 518 ; Durant v. Abendroth, 97 Ib. 132 ; Sharp v. Hutchinson, 100 Ib. 533 ; Pierce v. Bryant, 87 Mass. 91; Maguire v. Lawrence, 45 Super. Ct. 235 ; Met. Bk. of N. Y. v. Sirrett, 15 Abb. N. C. 318).
    II. The joinder by plaintiff in the assignment proceedings and the acceptance of a dividend therein did not prejudice his rights here, nor was there any adjudication in that matter as to the nature of the copartnership of Hogg & Patterson. The plaintiff appeared, specially, in such proceedings, saving all rights to prove, in any suit or proceeding, that the defendant Hutchinson was a general partner. Whether plaintiff had or had not reserved its rights, and even though the referee and court had remained silent on the question as to whether or not the firm of Hogg & Patterson was a general or special partnership, plaintiff’s participation in the assignment proceedings would not have prejudiced him here. The assignment proceedings were only proceedings m rem, and did not estop plaintiff from proceeding against the firm as a general partnership (Durant v. Abendroth, 97 N. Y. 133).
   By the Court.

O’Gorman, J.

—(After stating the facts as above).—The evidence is sufficient to sustain the plaintiff’s contention that the defendants were general partners, for the cause set forth in the complaint.

Of the amount of $10,000 stated to have been paid into the funds of the firm by Hutchinson, only $8,000 was actually paid, and as to the remaining $2,000, he returned a note made by Hogg individually for that amount, which was put to the credit of Hutchinson on the books of the new firm. This is not a compliance with the requirements of the law (Sharp v. Hutchinson, 100 N. Y. 533 ; Durant v. Abendroth, 97 Ib. 132 ; Maginn v. Lawrence, 45 Super. Ct. 235).

The only material question which remains is whether the plaintiff is not estopped from taking advantage in this action of the defendant’s failure to create a limited partnership.

The proceedings in the court of common pleas, on which defendant Hutchinson relies, proceeded necessarily on the assumption that the assignment made by Hogg & Patterson as general partners, was a valid assignment.

A referee was appointed to fake proof, who found, among other things, that Hogg, Patterson & Hutchinson were engaged in business under the firm name of Hogg & Patterson, but that the issue as to whether Hutchinson was a general or a special partner in said firm was not tried or determined by the referee.

The plaintiff appeared on the reference, and offered to prove the failure of Hutchinson to comply with the requirements of the law as to the creation of special partnership, which proof was excluded by the referee on the objection of counsel for Hutchinson, and on the ground that the question whether or not Hutchinson was liable to creditors as a general partner could not be tried on that reference. On the return of the citation, duly issued, requiring the creditors of the firm to appear in court and attend to the final settlement of the assignee’s accounts, the plaintiff appeared by counsel, but “without prejudice to its right to claim in any suit or proceeding that the firm of Hogg & Patterson was not a special or limited partnership, but a general one, and without waiving any right to proceed against the general partnership.” In the order of the court of common pleas, confirming the referee’s report, it is set forth that the issue as to whether Hutchinson was a general or special partner in said firm was not tried or determined by the referee, and was not passed on by the court.

There is here, therefore, direct and ample evidence that the question was not only not litigated, but was expressly excluded from the consideration of that court and of the referee. Indeed, the consideration of any question as to the validity or invalidity of the assignment was foreign to his functions, which were only to ascertain how the provisions of the assignment should be legally carried out (Re Holbrook, 99 N. Y. 539).

The objection that plaintiff, by electing to take advantage of the proceedings to give effect to the assignment, and by accepting and receiving from the assignee payment of a part of its claim, has disabled itself from maintaining this action, is without merit.

The plaintiff’s contention here is that the proceedings in the court of common pleas, were, strictly speaking, in rem; that the assignment was void because all the general partners had not joined in executing it; that the property in the hands of the assignee was still the property of the firm of Hogg & Patterson, and that the plaintiff has always expressly reserved all its rights to all remedies against the partners in another action.

Its acceptance of money from the assignee of two of the partners, in part payment of the indebtedness of the firm to it, is not, under the circumstances of this case, a waiver of any other claim, nor does it preclude it from suing all the partners in another action and recovering any balance remaining due (Durant v. Abendroth, 97 N. Y. 132).

The judgment and order must be affirmed, with costs.

Sedgwick, Oh. J., and Trtjax, J., concur.'


author: Ingraham, J.

text:
    WILLIAM KRAMER, Respondent, v. THE BOARD OF POLICE OF THE POLICE DEPARTMENT OF THE CITY OF NEW YORK, Appellant.

      Police department.—Injunction against arrests by, for claimed violation of law forbidding sale of wine in auditorium or lobbies of places where theatrical, etc., performances are given—Equity jurisdiction as to.

    An action in equity will not lie to determine the question of the guilt or innocence of one charged, with an offense against the criminal law.
    Therefore, where from the complaint in an action for an injunction, it appears that the acts sought to be restrained consisted in. the arrest by the police department, of persons claimed by it to be engaged in the selling of wine, etc., in the auditorium or lobbies of places where theatrical, minstrel, equestrian, circus, acrobatic, juggling or rope dancing performances are given, contrary to § 2010 of chapter 410 Laws 1882 (the Consolidation Act), which makes such selling a misdemeanor, and its interference with a business claimed by it to consist in part of such sale, and that the injunction is asked for on the sole ground that the plaintiff violates no law, but that nevertheless the police under such claim threaten to arrest the plaintiff and his employees, and to interfere with his business, whereby he will sustain irreparable injury which cannot be estimated or ascertained in an action of law,—a court of equity has no jurisdiction to grant the injunction. A fortiori, it has no jurisdiction to generally restrain the arrest by the police for any cause or offense whatever, of any person while engaged on. the premises of the plaintiff in the transaction of any business with him.
    Before Trtjax and Ingraham, JJ.

      Decided July 2, 1886.
    Appeal from order granting injunction.

      The defendants in this action are sued as “a body duly created by law specially charged "with enforcing the laws of this state and preserving the peace of the city,” and the complaint alleged that the defendants by their servants and policemen have threatened to arrest the plaintiff and all his employees, and to interfere with plaintiff’s business and prevent him from carrying on the same at his place of business in the city of New York, claiming that the plaintiff violates the law, and further alleging ‘1 that plaintiff violates no law whatever, and unless the defendants are enjoined from interfering with plaintiff’s business and making the threatened arrests, the injury plaintiff will sustain will be irreparable which cannot be estimated or ascertained in an action at law and the complaint demanded judgment, “ that the defendants, its superintendent, inspectors, captains, sergeants, rounds-men, patrolmen, &c., be enjoined and restrained from arresting or taking into custody, any person engaged upon the premises of the plaintiff in the transaction of the business of the plaintiff, and from interfering with or hindering any such persons in the transaction of said business, and from in any manner proceeding against such persons by arrest, or otherwise, in the conduct of said business on plaintiff’s premises, and from in any manner interfering with or hindering plaintiff or such person or persons authorized in carrying on the business as aforesaid.”
    On this complaint and the affidavit of the plaintiff, which it was claimed tended to show that the business carried on at the premises described in the complaint, was not in violation of law, and that he and his servants were not guilty of the crime charged, an order was entered which provided, “that the said defendants and all persons acting under defendants’ authority or by its direction, desist and refrain until the final determination of this action, from arresting or taking into custody any persons engaged upon the premises of the plaintiff in the transaction of any business with the plaintiff, and from interfering with or hindering any such person in the transaction of said business, and from in any manner proceeding against any such person by arrest, or otherwise, in the conduct of said business upon the plaintiff’s premises, and from in any other way interfering with or hindering plaintiff or such person or persons as may be authorized by him in carrying on his business as aforesaid.”

      E. Henry Laeombe, counsel to the corporation, and Francis M. Scott and D. J. Dean, of counsel for appellant,
    on the questions considered in the opinion, argued : —I. The plaintiff fails to make out any case for the equitable action of the court. His plea is, that the police accuse him of committing a misdemeanor by selling and furnishing wine, beer and strong and spirituous liquors in the auditorium of a place of amusement, contrary to the provisions of section 2010 of the Consolidation Act, whereas, he asserts, on his part, that the place in which he carries on his business is not a place specified in the section last quoted, and, therefore, that he does not fall within the provision of that section; and he, therefore, asks the court to restrain his arrest, until it shall have determined whether or not he has been guilty of a misdemeanor. It seems to be well settled that an injunction will not lie to restrain an arrest under circumstances such as are disclosed by the papers in this case (Birch v. Cavanagh, 12 Abb. Pr. N. S. 415 ; Murphy v. Board of Police, 11 Ib. 351; Finck v. Police Comm’rs, 66 How. Pr. 318 ; Davis v. The American Society, &c., 15 N. Y. 362).

      Howe & Hummel, attorneys and of counsel for respondent.
   By the Court.

Ingraham, J.

—[After stating the facts as above.}—By section 250 of chapter 410 of the Laws of 1882, known as the Consolidation Act, it is provided that the government and discipline of the police department of the city of Hew York shall be such as the board of police may .from time to time, by rules and regulations prescribe, and by section 277 of the said act, “The several members of the police force shall have power and authority to immediately arrest, without warrant, and to take into custody any person who shall commit, or threaten, or attempt to commit, in the presence of such member or within his view, any breach of the peace, or offense directly prohibited by act of the legislature, or by any ordinance of the city. The members of the police force shall possess in the city of blew York, and in every part of this state, all the common law and statutory powers of constables. . .”

By section 2010 of the said act it is provided : “It shall not be lawful to sell or furnish any wine, beer or strong or spirituous liquors to any person in the auditorium or lobbies of any place of exhibition or performance mentioned in section 1998, or in any apartment connected therewith by any door, window or other aperture and by section 2012 it is provided, that any person violating any of the provisions of section 2010, shall be deemed guilty of a misdemeanor.

The selling or furnishing of any wine, beer or liquor in the auditorium or lobby of a place of exhibition or performance having been made a misdemeanor, it became the duty of the members of the police force to arrest the plaintiff, if he sold or furnished wine or liquor in the place prohibited by the statute, and the ground upon which the plaintiff requested the court below to grant the injunction was that the acts of the plaintiff and his servants were not in violation of the section referred to ; or, in other words, that they were not guilty of the misdemeanor for which the police threatened arrest. This was the only question discussed in the opinion below and in the briefs submitted by counsel for respondent on this appeal.

The court below held that the plaintiff was not guilty of the crime, thus trying in a court of equity the guilt or innocence of a person accused of a crime on affidavit. There was no charge in the complaint that the police had threatened to make the arrest without a warrant or the authority required by law. The allegations are that plaintiff was accused of a crime ; that the police threatened to arrest him for committing such crime ; that he was innocent of the crime charged, and did not want to be arrested because it would injure his business ; and whether or not a court of equity has jurisdiction to determine such a question in this action, is presented.

It is clear that the assumption of such jurisdiction by a court of equity would entirely subvert the method provided by law for the trial of criminal cases. If such jurisdiction should be upheld, every person accused of crime would have the right to apply to the court for an injunction restraining his arrest, and the court would be bound to entertain the application and to try the question of his guilt or innocence upon affidavits. Upon no principle could the jurisdiction be restrained to a particular class of crimes, and a person charged-with the crime of murder would be as much entitled to the remedy as a person charged with a violation of the section of the statute referred to.

The tendency has been to greatly extend the remedy by injunction in civil cases, but certainly such remedy should be limited to civil cases, and criminal cases left to be disposed of in the criminal courts.

The question was presented to the court of appeals in the case of Davis v. The American Society, &c. (75 N. Y. 362), where, as in this case, the plaintiff claimed that his acts were not in violation of the statute under which the officers of the defendant claimed the right to arrest, and it was there held that the action was absolutely without sanction in precedent cr principles of equity. The court say: “The only question for contestation was whether, as matter of fact, they were guilty or innocent, of such violation, and the determination of that question could not by such an action as this be drawn to a court of equity. Whether a person accused of a crime be guilty or innocent, is to be determined in a common law court by a jury, and the people as well as the accused have the right to have it thus determined.”

But the order granted in this case went further than to restrain the arrest of the plaintiff and his employees. The defendants are enjoined from arresting or taking into custody any person engaged upon the premises of the plaintiff in the transaction of any business with the plaintiff, and from in any manner proceeding against any such person by arrest, or otherwise, in the conduct of said business upon plaintiff’s premises.”

Such an injunction would give any person engaged upon the premises of the plaintiff in the transaction of any business, immunity from1 arrest for any crime, and practically nullify the statute which gives to the members of the police force power and authority to arrest and take into custody any person who shall commit or threaten or attempt to commit in the presence of such officer any offense prohibited by law.

We do not decide whether or not the acts of the plaintiff were in violation of section 2010 of the Consolidation Act, but we are of the opinion that such questions cannot be determined by this court in this action.

The order appealed from should therefore, be reversed, with ten dollars costs and disbursements, and motion for injunction denied, with ten dollars costs.

Truax, J., concurred.


author: —Sedgwick, Ch. J. Truax, J.

text:
    RUDOLPH SCHMIDT v. HERMAN SCHANZLIN, et al.

      Evidence.—Letters, posting of, secondary evidence.—Position not ialcen on trial—when cannot he first talcen on appeal.

    The testimony of a witness that a letter had been mailed in the regular way, is prima facie proof that it was mailed properly addressed, and with postage prepaid.
    In an action to recover the possession of certain goods, plaintiff having taken the position on tjie trial, that they were consigned by him to defendant for sale on commission only, and the defense being that they were sold outright by plaintiff to defendant, evidence of defendant’s insolvency at the time when he ordered the goods, is admissible as tending to furnish, if defendant’s position be maintained, a ground of recovery admissible under the complaint, and as bearing on the probabilities as to whether the transaction was a consignment or a sale.
    Where secondary evidence of the contents of a letter is offered, and on objection being made, proof of service of a notice to produce is givfen, and the court holding such notice insufficient, rejects the evidence, the party offering the same, after having-had the benefits of an exception, cannot take the position on appeal, for the first time, that the paper being out of the jurisdiction of the court, a notice to produce was not necessary to permit secondary evidence (Per Sedgwick, Oh. J.).
    Before Sedgwick, Oh. J., Truax and O’G-orman, JJ.

      Decided July 6, 1886.
    Defendants’ exceptions ordered to be heard in the first instance at general term.
    Action in replevin to recover certain wines which plaintiff claimed to have consigned to defendant Schanzlin for sale, and which defendant claimed to have bought.
    The complaint alleged :
    “ That the defendants have become possessed of and wrongfully detain from the plaintiff the following goods and chattels, the property of the plaintiff, that is to say, thirteen puncheons of wine, marked H. S., of which ten contained claret, one hock, one dry muscatel, and one Riesling, of the value of $1,209.63. ,
    “That said goods were duly demanded from defendants before the beginning of this action, but that defendants have failed and neglected to deliver the same to plaintiff, to plaintiff’s damage $1,400. Wherefore plaintiff prays,” &c.

      Meyer Auerbach, for plaintiff.

      P. & B. Mitchell, for defendants.
   By the Court.

—Sedgwick, Ch. J.

—The first exception was to the introduction of a copy of a letter, which plaintiff claimed he had sent by post to the defendant Schanzlin. The only objection taken was that plaintiff had not shown that the letter had been mailed or properly addressed to the defendant, or that the postage was prepaid. The objection was not sound, for, according to the rule in Oregon Steamship Co. v. Otis (100 N. Y. 446), all the things referred to, had been prima facie proved by an answer of an earlier witness, that the letter in question had been mailed to the defendant Schanzlin-in the regular way.

An exception was taken to the admission as evidence of the schedule attached to an assignment made by defendant Schanzlin for the benefit of his creditors. Primarily, these were objected to as immaterial. The counsel for plaintiff then said that he wanted to show that Mr. Schanzlin was insolvent when he made the proposition, when he bought the wine, and that he knew himself to be insolvent. The defendants’ counsel then made the further objection that the plaintiff had taken the position that the goods had been only consigned to defendant, and could not introduce evidence on an inconsistent position that the goods were sold'by plaintiff and bought by defendant. The objection was overruled. The plaintiff does not seem to have taken the position as a ground of recovery in offering the testimony, that the defendant had in fact bought the goods, not intending to pay for them, except in this way. The defendant when the plaintiff’s agent demanded the goods of the defendant, gave as a reason for retaining them, that he had bought the goods of plaintiff, and such was the substantial defense of the action as claimed. Thereupon the plaintiff proposed to prove that even if by supposition, the goods had been bought, the defendant did not intend to pay for them, and for that reason the defense or the reason for retaining them after demand, was not valid. The plaintiff would have had a right to argue to the jury, not only ha-ve the witnesses shown the goods were consigned, but the defendant meets this only by setting up a sale which, if it occurred, would have been fraudulent, and which under the complaint would have entitled the plaintiff to recover. In other words, if the plaintiff’s primary position did not furnish a ground of recovery, the position assumed as a defense did furnish it. In the conflict of claim it was something that the jury might consider, whether, if the defendant were insolvent, he would more likely solicit consignments or incur the liabilities of a purchaser of goods. I think there was no error in the ruling of the court. Although insolvency be not proof of an intent not to pay, it is relevant testimony on the subject.

The counsel for defendant excepted to the exclusion of copies of letters written by the defendant to the plaintiff, and which formed part of the correspondence from which, mainly, the relation of the parties was to be learned. The original letters themselves seem, at the time of the trial to have been in San Francisco. The plaintiff objected to the copies as improper, secondary evidence. The defendant proved that they had served notice to produce the originals. As this appeared to have been served on the day before the offer was made, and the plaintiff lived in San Francisco, and was not present at the trial, the court properly held that the time given for the production was not sufficient. It is now argued, and perhaps correctly, that it wms not necessary to give notice to produce a paper out of the jurisdiction of the court, in order to give a party a right to prove its contents by secondary evidence. But such position was not taken at the trial. The counsel for plaintiff was led to believe that the paper was offered only in pursuance of the notice, and therefore to take an objection which resulted in an exception fatal to a recovery, if it can now avail the defendants. The objection, it must be assumed, would not have been taken, if the defendants had presented the claim they now do that the evidence was proper if no notice had been given.

As the exceptions were not valid, they should be overruled, and there should be judgment for the plaintiff, on the verdict, with costs.

Truax, J.

—[Concurring.]—The letters that were rejected do not show, nor do they tend to show that the goods were not consigned to the defendant Schanzlin, and therefore it was not error to refuse to admit them. I concur.

O’Gorman, J., concurred in the result.


author: —O’Gorman, J.

text:
    WILLIAM PERZELL, Respondent, v. SHERIDAN SHOOK, et al., Appellants.

      Contract.—Lease.—Liquidated damages.

    A contract for the letting of a theater for three weeks, provided that the lessee should pay to the lessor on the execution thereof, the sum of §1,000, to be applied to the payment of the rent for the last week, but in case of the failure of the lessee to fully perform any of the conditions of the agreement, said sum was not to be applied towards the payment of any rent, but was to be forfeited to the lessor for his own use and benefit, and taken and considered as liquidated damages paid by the lessee to the lessor. The only condition on the part of the lessee stipulated for by the lease, was the payment of a stipulated weekly rent. At the expiration of the first week, which was paid for, the lessee ceased to use the theater and paid no more rent.

      Held, that the §1,000 paid on the execution of the contract, is to bo regarded as liquidated damages, and as covering all claims against the lessee by reason of the breach of the contract, including breach of the covenant to pay rent.

      Further, held, that the contract not being ambiguous, severe or inequitable, parol evidence of the intent of the parties, as to the clause relating to the payment of $1,000 was inadmissible.
    Before Sedgwick, Cli. J. and O’G-orman, J.

      Decided July 6, 1886.
    Appeal from a judgment in favor of the plaintiff for $141, entered on a verdict under direction of the court.
    In March, 1883, the plaintiff' entered into a written agreement with Albert M. Palmer, for the lease by him to the plaintiff of the “Union Square Theatre,” of which agreement the following is a copy :
    “First.—That the party of the first part (Palmer) hereby agrees and covenants to furnish for the term of three weeks, commencing August 20, 1883, to the party of the second part (the plaintiff), the Union Square Theater in the City of New York, cleaned and lighted for the production of and representation therein of a certain play known as or entitled “ Vera,” and other plays if necessary, and also covenants and agrees to furnish the necessary stage hands, the usual orchestra of the theater, property men, gas men, the ushers, the ticket sellers and ticket takers, at said performances.
    “ Second.—The party of the second part hereby agrees to pay the party of the first part for the weeks commencing August 20, 1883, and August 27, 1883, the sum of $1,650 for each of said weeks, and $1,800 for the week commencing September 3, 1883.
    “ Third.—The party of the second part agrees to pay now to the party of the first part the sum of $1,000, which said $1,000 shall be applied toward the payment of the last week referred to in the second paragraph.
    “Fourth.—Each payment for the weeks referred to in the second paragraph shall be made on the Monday of each of the above-mentioned weeks in advance, viz., on Monday, August 20, $1,650 ; on Monday, August 27, $1,650; on Monday, September 3, $800, and the $1,000 above mentioned to be applied towards the balance of the rental aforesaid for the weeks as stated aforesaid.

      “Fifth.—If there should be a failure of the party of the second part to fully perform any of the foregoing paragraphs or any part of this agreement, the said $1,000 shall not be applied toward the payment of any rent, but the same shah be forfeited to the party of the first part for his own use and benefit, and shall be taken and considered as and for liquidated damages paid by the party of the second part to the party of the first part.”
    This money ($1,000) was actually paid by the plaintiff to Palmer on the execution of the contract. Soon after-wards the defendants succeeded to the rights and obligations of Palmer under the contract. On Monday, August 20, the rent for the first week was duly paid in advance, and plaintiff proceeded to give representations in the theater. The enterprise was not successful; the business was very bad, and money came in slowly. The employee of the defendant who was in charge of the box office and received money for tickets sold, retained and refused to pay over to the agent of the plaintiff the money received for the performances of Friday night, Saturday matinee and Saturday night, amounting to $326; and when plaintiff applied to defendants for the money on Saturday night, the defendants refused to pay it over to the plaintiff, and said “ they meant to keep it.” Plaintiff thereupon said : “You have broken your contract,” and that if he did not get his money from them he would not give any more performances in the theater. In the conversation-with them at that interview, he also said that he was not immediately prepared to pay, and he submitted to the defendants a written memorandum of a new agreement, which he desired them to execute. They never did execute this proposed agreement. The plaintiff did not pay the rent payable in advance on the following Monday, or any further rent, and he ceased to use the theater.

      A. J. Ditterihoefer, for appellants.

      Stafford <& Graff, for respondent.
   By the Court.

—O’Gorman, J.

—[After stating the facts.]—On these facts, the plaintiff claims that the defendants’ refusal to pay over to him the proceeds of the three performances, before any rent was due by him, amounted to an eviction or a breach of the contract, giving him the right to recover the money so retained by defendants, together with the $1,000 deposited by him, on the execution of the contract, amounting in all to $1,326.

The defendants, on the other hand, claim that the contract was first violated by the plaintiff in his failure to pay his rent, due in advance on Monday, August 27, and that they are entitled to retain the $1,000, and also to have judgment against the plaintiff for $3,729.22 being the amount which would. have accrued under the contract, for the second and third weeks’ rent, together with the amount of certain claims for services admitted to be due by plaintiff, and assigned to defendants.

The trial judge, in directing a verdict for the plaintiff for $141, being the money of the plaintiff retained by defendants, less the amount of said claims, was, no doubt, of opinion that the contract was first violated by the plaintiff, in his failure to pay rent accruing due in advance under the contract, and that the $1,000 deposited should be regarded as liquidated damages, and as covering all claims against the plaintiff by reason of the breach of ■the contract. In this opinion I think he was correct.

The retention ■ by defendants of the money of the plaintiff received by them, was, no doubt without authority or justification in law, but it did not constitute either an eviction or a breach of the contract.

Exceptions were taken by the learned counsel for the defendants to the exclusion of various questions, which he claims were put, for the purpose, among others, of showing that the parties to the contract never intended that the $1,000 should be considered to be liquidated'damages. Some of these questions were answered at other stages of the trial. None seem to me material or relevant on the question of the intent of the parties when they executed the contract. On that subject the contract must first speak for itself.

In cases where contracts are ambiguous or contain severe and inequitable provisions, embarrassment has been no doubt experienced, in the effort to reconcile the principles of justices with the well settled rule that every person has the right to make such a contract as he chooses, and that courts are bound to enforce it. In such cases the actual intention of the parties may be ascertained from the language of the entire contract itself, and also from the surrounding circumstances, as far as that can be reasonably done (Little v. Banks, 85 N. Y. 258 ; Kemp v. Knickerbocker Co., 69 Ib. 45).

In the case at bar, the language of the contract itself is not ambiguous, and is susceptible of no interpretation other than that given to it by the learned trial judge. The circumstances of the parties, when the contract was made, were before the court and it would be dangerous and improper to allow either of the parties ¡themselves, after a breach of the contract had taken place, to give his own interpretation of its meaning and intention.

The judgment appealed from should be affirmed, with costs and the order appealed from should be affirmed.

Sedgwick, Oh. J., concurred.


text:
    HERMAN KRATZENSTEIN v. THE WESTERN ASSURANCE CO. OF TORONTO.

      Insurance policy—printed and written portion—construction of same, when difference exists.

    Where a printed form of policy is used, providing that its general language should be controlled by indorsements of special risks, the printed portion of the policy is incomplete and ineffective as a contract, until made definite and certain by the indorsement which in each case fixes the amount and nature of the risk.

      Accordingly, where the printed policy insured against loss of goods “ laden on board vessels, railroad or carriage,” while the written indorsement insured the goods against “ risks of fire, and navigation, and transportation, while on vessels, steamboats, or railroads, or in hotels, and while in custody of the assured or his traveling salesman.”

      Held, that the word “carriage” not being found in the indorsement, the loss of goods while laden in a carriage is not one of the risks insured against.

      Further held, that the phrase “and while in custody of the assured or his traveling salesman,” cannot be taken as constituting a separate risk.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.

      Decided July 8, 1886.
    Case submitted under section 1279 of the Code of Civil Procedure.
    The facts appear in the opinion.

      Isaac N. Falk, for plaintiff.

      Carpenter & Mosher, for defendant.
   By the Court.

—O’Gorman, J.

—The parties in this action have submitted to this court, under section 1279 of the Code of Civil Procedure, the issue whether or not the plaintiff is entitled to recover judgment, against the defendant for the sum of $503.52, with interest, by reason of the loss of his goods insured by the defendant.

The conclusion to be arrived at will depend on the proper construction of the printed policy of insurance, in connection with a written “indorsement,” made by defendant’s agents thereon.

By the terms of the printed policy, the defendant agreed to insure against loss, goods “laden on board vessels, boats, railroad or carriage, .. at and from ports and places . . . for the several amounts and at the rates as hereon indorsed, subject to the conditions of this policy, or of any contract propositions, covered by this policy according to their true intent or meaning. Beginning the adventure at the port or place named in the indorsement. ” It was also provided by the policy, that no shipment shall be considered as insured until approved and “ indorsed ” thereon by the company. Upon the printed policy in suit, was a written “ indorsement,” containing these words, among others : Against “ risks of fire and inland navigation and transportation, while on vessels, steamboats, or railroads, or in hotels, stores or depots . . . and while in custody of the assured or his traveling salesman.”

The plaintiff’s goods were packed in trunks, and in custody of his travelling salesman, who was attempting to convey them in a two-horse wagon across a bay or a creek in Louisiana, when they were thrown into the water and damaged to the amount claimed in this action.

It will be noticed that the word carriage ” used in the policy, is not found in the indorsement, and the question here is, whether the loss of the goods, while being transported in a carriage, is a risk insured against by the defendant.

The printed policy is incomplete and ineffective as a contract, until made definite and certain by the indorsement, which in each case fixes the amount and nature of the risk (Chadsey v. Guion, 97 N. Y. 333). The printed clauses in a policy are subject to restriction and modification, by such as are written (Merchants’ S. S. Co. v. Mutual Ins. Co., 51 Super. Ct. 444).

In this instance, the scope of the risks as set forth in the printed policy is both modified and restricted by the indorsement. Goods, while in hotels, depots and stores, not covered by the terms of the printed policy, are covered by the indorsement; and goods, in carriage, which are covered by the terms of the written policy, are excluded in the indorsement.

In each instance the indorsement must be treated, in my opinion, as expressing the latest intention and agreement of the insurer and insured, and therefore, the loss of the plaintiff’s goods, while laden in a carriage, is not one of the risks covered by this insurance.

The plaintiff’s argument is, that the words in the indorsement, “and while in the custody of the assured or traveling salesman,” were intended to enlarge the scope of the insurance, and add to the number of risks insured against in the printed policy, every loss, from any cause, of the goods, if they were at the time “in custody of the assured or his traveling salesman.” This position can be sustained only by substituting the word “or” for the word “and” in the sentence, a process which may, no doubt, be sometimes resorted to when necessary to avoid a manifest contradiction or ambiguity. But there is no occasion for it here. The meaning of the words used can be ascertained without any violence to the language. The goods insured here, must, in addition to the requirements of the printed policy, be also, when lost, in custody of the assured or his traveling salesman.

The word “ custody ” does not necessarily mean physical and tangible possession of the insured property, but such possession and dominion over it as belongs to any ordinary traveler using ordinary care of his baggage.

Judgment should be entered for the defendant, with costs.

Sedgwick, Oh. J., and Truax, J., concurred.


author: Pee Cueiam.

text:
    ADOLPH SINSHEIMER, Appellant, v. MINNIE TOBIAS, et al., Respondents.

      Copartnership—agreement of one partner to pay firm, debts, action by outgoing partner for breach—damages.

    On the dissolution of a partnership, it rvas agreed that the stock, and assets of the firm should become the absolute property of one partner, the defendant, who agreed to pay all the partnership debts then outstanding. The defendant did not pay said debts, and several of the partnership creditors recovered judgments against the members of the firm, including the plaintiff.

      Held, that in an action for breach of this agreement, plaintiff was entitled to recover from the defendant the amount of the judgments, whether or not the plaintiff had paid them.

      Before Teuax and O’G-ormax, JJ.

      Decided July 8, 1886.
    Appeal from a judgment entered in favor of the defendants at special term.
    The facts appear in the opinion.

      Wehle & Jordan, for appellant.

      Michael J. Kelley, for respondents.
   Pee Cueiam.

Prior to August 9, 1883, the plaintiff and the defendant, Minnie Tobias, were partners. On that day they dissolved partnership. It was agreed between them that Minnie Tobias should have all the stock and bills receivable, and that she was to pay all the partnership debts then outstanding. She has received a transfer of the stock, and collected the bills receivable to the amount of about $1,800, but has not paid the firm debts, and judgments have been recovered thereon against plaintiff and the said Minnie Tobias to the amount of $1,606.11. These judgments have not been paid, and are still of record, and this action was brought to recover from the defendants damages for the breach of the agreement.

The judge before whom the case was tried, dismissed the complaint on the ground that the plaintiff was not entitled to the sole and personal ownership of the fund to be made by the defendant, Minnie Tobias, for the purpose of paying partnership debts, which would be the substance of the relief demanded, especially without the defendants having a legal assurance that the fund would be so devoted.

If the contract made by Minnie Tobias had been only to indemnify the plaintiff and save him harmless against claims of the creditors of the firm, payment of the claims or of some of them, by plaintiff, would have been necessary to sustain an action for damages, but in the case at bar the contract was not to indemnify but to pay the debts of the firm. The obligation to pay them was an absolute one, and on the failure to pay within a reasonable time a cause of action accrued against the defendant, Minnie Tobias (National Bank v. Bigler, 83 N. Y. 51; Trinity Church v. Higgins, 48 Ib. 532 ; Kohler v. Matlage, 72 Ib. 259).

The cause of action being complete on her failure to pay the debts, the only remaining question would be as to the amount of damages.

The court below found that several of the creditors of the said firm had brought suit against the plaintiff and defendant, Minnie Tobias, to recover the amount of their respective claims, and had recovered judgments against plaintiff and said Minnie Tobias, but refused to find as matter of law that plaintiff was entitled in this action to judgment against said defendant for the amount of the judgment which had been recovered against him. To this refusal plaintiff duly excepted.

It was error for the trial judge to refuse to find as requested. The agreement was an absolute one to pay the debts of the firm, and the plaintiff’s right of action arose the moment the debts became due and were not paid. It was immaterial whether or not the plaintiff had paid the judgments (Thomas v. Allen, 1 Hill, 145 ; Gilbert v. Wiman, 1 N. Y. 550; Belloni v. Freeborn, 63 Ib. 383, and the cases cited above).

The parties to this action having elected to try it as an action a.t law to recover the damages for the breach of the defendant’s agreement to pay the debts of the firm, the court should have found for the plaintiff in the amount of the judgments which had been obtained against plaintiff.

No cause of action was proved against the defendant, Theodore H. Tobias, and the judgment as to him should be affirmed, with costs.

The judgment in favor of Minnie Tobias is reversed, and a new trial is ordered, with costs to the appellant to abide the event.


text:
    THE N. Y. NATIONAL EXCHANGE BANK, Respondent, v. THE METROPOLITAN ELEVATED RAILWAY CO., et al., Appellants.

      Elevated railroads—damage by to easement in street attached to leasehold property ; rule as to provision in judgment permitting purchase of easement by railroad companies.

    Before Van Vorst and Freedman, JJ.

      Decided January 4, 1886.
    Appeal by defendants from a judgment entered upon the decision of the court at special term.
    This action was brought to obtain equitable relief upon the ground that the plaintiff owns a leasehold interest in certain property upon the southwest corner of Chambers street and College Place, in the city of New York, and that attached to said property there is the usual easement in said streets ; that the Metropolitan Elevated Railway Co. constructed an elevated railroad, including a station, in front of the said property, and operated upon the structure of said railroad a steam railroad from June, 1878, to May, 1879 ; that at the time last mentioned the said road was leased by said company to the Manhattan Railway Co.; that since said time the said road has been continuously operated; and that such construction and operation materially abridged plaintiff’s easement in said streets, in consequence of which the plaintiff sustained a depreciation in the rental value of said property and specific losses of rent.
    The Court at General Term (after stating the facts as above), said :—“ The easement in question has its origin in a cession by the Trinity Church Corporation of the streets named, to the city of New York for street purposes. In this respect the case at bar is identical with the case of Glover v. The Manhattan Railway Co. (51 Super. Ct. 1). The evidence given at the trial established a cause of action in the plaintiff upon the grounds above stated and within the principle of the decisions in Story v. The N. Y. Elevated Railroad Co. (90 N. Y. 122); Taylor v. The Metropolitan Elevated Railway Co. (50 Super. Ct. 311); Glover v. The Manhattan Railway Co. (51 Super. Ct. 1) ; Drucker v. The Manhattan Railway Co. (51 Super. Ct. 429); and Ireland v. The Metropolitan Railway Co. (52 Super. Ct. 450). Unless, therefore, it appears that some error was committed in the course of the proceedings, or in the rendition of the judgment as entered, the judgment appealed from should be affirmed. Under the rules laid down in the cases of Drucker and Ireland, there was no error in the admission of evidence. So no error appears in the exclusion of testimony. Aside from other considerations, both the rapid transit act (Laws 1815, ch. 606, § 20), and the general railroad act as expounded in 29 Hun, 1, and 35 Hun, 260, prohibit any allowance or deduction on account of any real or supposed benefits flowing from the construction of the railroad. The judgment rendered awards to the plaintiff, (1) the sum of $112.80, payable by the Metropolitan Elevated Railway Co., being the amount of the depreciation of rental value sustained from June, 1818, to May, 1819, with interest and costs ; (2) the sum of $4,346.05, payable by both companies, being the amount of the depreciation of rental value sustained from May, 1819, to the time of the trial, with interest and costs ; and (3) an injunction to prevent the further operation of the road from and after a future day named. This award of damages is sufficiently supported by evidence, and if, therefore, there were nothing more in the judgment, the case would be completely covered by the decision of the case of Glover. The judgment, however, further provides that the defendants may buy so much of the easement of the plaintiff, as was taken for the purposes of the railroad, for the sum of $8,000, and that in case of such purchase the plaintiff shall make proper conveyance and there shall be no injunction. The findings show that, in determining the value of so much of the easement as was taken, the court refrained from considering, as an element of damage, the annoyance caused by noise, or any annoyance other than what constituted an interruption to the easement of light, air and access, in the proper acceptation of the term. And they further show that the sum of $8,000 represents the depreciation of the plaintiff’s property at the time of the trial; that, in arriving at that conclusion, proper regard was had for the specific loss of rental value for which a money judgment was given, and that the case is clearly distinguishable from that of Ireland, in which the verdict of the jury was inconsistent. The case, as a whole, also shows that there was sufficient evidence before the court to enable it to arrive at that conclusion. If more light could have been shed upon the case, the defendants as well as the plaintiff might have procured it. Exact and exhaustive particularization was not necessary. Upon all the facts and circumstances disclosed, it sufficiently appears that the judgment, as given, rests upon a solid as well as discriminating basis, and that, inasmuch as there is no obligation on the. part of the. defendants to pay the $8,000, the provision enabling them to purchase for that sum, is rather in the nature of a privilege. Moreover, the decision pursuant to which the judgment was directed to be entered, expressly provided that any party to the action should have leave' to move at the foot of the judgment for further direction as to the enforcement of the judgment. If, therefore, the defendants, or either of them, desired some additional equitable provision which the court might have made for their benefit, they should have made a proper request for it'.

    “As the case stands no error appears in the record, and consequently the judgment appealed from must be affirmed, with costs.”

      Julien T. Davies, and Edward S. Rapallo, for appellants.

      G. Willett Van Nest, for respondent.
   Opinion by Freedman, J.;'Van Vorst, J., concurred.

Judgment affirmed, with costs.


text:
    PHEBE E. CAMPBELL, et al., as Admrs., &c., Respondents, v. WILLIAM E. MAGINN, Appellant.

      Evidence—When testimony of defendant as to conversation of third party with deceased, in which conversation defendant tools no part, not admissible under § 829, Code Civ. Pro.

    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.

      Decided March 1, 1886.
    Appeal by defendant from judgment and from order denying motion for new trial on the minutes.
    The question litigatedpn this case, was whether or not the defendant employed the plaintiffs’ intestate, Sanford, to do certain repairs on premises at the corner of Hudson and Canal streets, for which the plaintiffs sought payment herein. In March, 1883, the defendant rented the store and cellar of the house from one Wolberg, who was himself a tenant ,of one Marshall, the owner thereof. The repairs were begun by Sanford about May 1. The death of Sanford made if impossible to prove by direct evidence, with whom the agreement for this work was made, and the plaintiffs’ case depended on evidence of various directions and orders, given by defendant to the artizans who had been employed by' Sanford to do the work, and the defendant’s declaration that he was the person who would pay for the work, tending to show that he regarded himself and held himself out as responsible for payment, and entitled to direct as to the progress of the work. That such directions were given and declarations made, defendant denied at the trial; and on that subject the case was given to the jury on the conflict of testimony. The defendant excepted to the refusal of the learned trial judge to admit testimony of defendant as to a conversation concerning the work in question, which took place between Marshall, the owner, Wolberg, the lessor of the defendant, and Sanford, since deceased, at which the defendant was present. The defendant testified that he did not join in the conversation.
    The Court at General Term (after stating the facts as above), said :—“If it was on the subject of the plaintiffs’ claim in this action, and relevant to the defense, it was not admissible under section 829 of the Code of Civil Procedure. It is held in Holcomb v. Holcomb (95 N. Y. 325), that this statute is a beneficial one and ought not to be limited or narrowed by construction ; that the policy' of the statute excludes the evidence of an interested witness concerning all communication between the person deceased and the witness, including communications in the presence or hearing of the witness, if he was, in any way, a party thereto, or communications to either one or two or more persons, if all were interested. Under this liberal construction, the testimony of the defendant, in this instance was properly excluded. There was enough of evidence in the case t.o sustain the verdict.” •

      M. L. Marks, for appellant.

      F. B. Chedsey, for respondents.
   Opinion by O’Gorman, J. ; Sedgwick, Oh. J., and Truax, J., concurred.

Judgment and order affirmed, with costs.


author: Per Curiam.

text:
    WILLIAM J. COMLEY, et al., Respondents, v. HENRY DAZIAN, Impleaded, &c., Appellant.

      Sale and delivery of goods upon agreement by vendee to sell the same with vendor's approval, and pay proceeds ratably among creditors of vendor —When vendor has cause of action against vendee for breach of— Variance between pleading and proof, when not fatal—Amendment oj complaint on trial.

    Before Sedgwick, Oh. J., O’Gorman and Ingraham, JJ.

      Decided March 1, 1886.
    Appeal by defendant from judgment entered on verdict in favor of plaintiffs, and from order denying motion for new trial made upon judge’s minutes.
    The complaint alleged that the plaintiffs assigned, or caused to be assigned and delivered to the defendants, certain theatrical costumes or wardrobes, upon the following terms : that the, defendant, Dazian, should solicit purchasers therefor, and use his efforts to sell said costumes at a suitable price, and with the consent and approval of the plaintiffs, sell the costumes, &c., and pay over the same ; that the defendants, in violation of said contract, have sold and disposed of the said costumes without the consent of the plaintiffs.
    The Court at General Term (after stating the facts as above), said: “ Proof of these facts, as alleged, would give a cause of action, although certain other allegations are made which somewhat obscure the real foundation of the plaintiffs’ claim. There were on the trial marked differences between the witnesses as to what the defendant, Dazian, promised. The jury has competently decided in favor of the plaintiffs. As against the plaintiffs, the testimony of one of them must be held to show that the whole of defendant Dazian’s promise was not alleged in the complaint. It omitted to aver that part of his promise was that he was to pay the proceeds of his sale of the goods ratably among the creditors of the plaintiffs, the two defendants being severally their creditors. This omission would not justify a dismissal of the complaint on the ground of variance between it and the testimony. A complaint may be conformed to the testimony, at any time, on such a point. It appears that the defendant was not surprised. There was enough testimony to support the complaint as thus amended. The letter of one of the plaintiffs to his counsel does not establish conclusively what the defendant, Dazian, agreed to do. It contained instructions as to the making of an assignment in the future. The testimony permitted the jury to find that the arrangement, as proposed by the letter, was not, in fact, carried out. It is argued that the plaintiffs had no cause of action; but thab any cause of action there might be was in the creditors to whom the defendant, Dazian, promised the plaintiff the proceeds of the sale should be ratably paid. The transaction was in the nature, it was claimed, of an assignment for the benefit of creditors, and established the relation of trustee and cestui que trust. The sale by the plaintiffs to the defendants was absolute, and was not in trust for the creditors. The consideration of that sale was the promise made by defendant, Dazian, that he would not sell excepting upon consultation with plaintiff, and to pay over the proceeds to creditors. The testimony did not show that it was the intention of the parties to the contract to give a cause of action to the creditors. The intention to authorize a distribution by Dazian of the money to be received by him, instead of payment to plaintiffs, and then a distribution by them. The legal purpose of the sale by the plaintiffs and of the promise given in consideration, was to benefit the plaintiffs and not the creditors. Therefore, the plaintiffs had a cause of action. Although the sale by plaintiffs was to the defendants, its consideration was a promise by Dazian singly. For this reason the complaint was dismissed against the other defendant.”

      A. J. Dittenhoefer, for appellant.

      F. K. Pendleton, for respondents.
   Opinion

Per Curiam.

Judgment and order appealed from affirmed, with costs.


text:
    LES SUCCESSEURS D’ARLES, DUFOUR & CIE., Respondents, v. JOSEPH FREEDMAN, Appellant.
    Before Sedgwick, Ch. J. and Truax, J.-

      Decided March 1, 1886.
    Pleading—“ Arrangement of claim,” what constitutes and how pleaded—■ Condition precedent—how must be pleaded under Code Civ. Proc. § 533.
    Appeal by defendant from judgment for plaintiff, for the demand of complaint, entered upon order sustaining plaintiff’s demurrer to defendant’s answer.
    Action upon promissory notes.
    The answer did not deny any of the averments of the complaint, but set up certain matter both as defense and counter-claim. They were as follows :—The defendant was largely indebted to the plaintiffs, and to other persons. The plaintiffs agreed with the defendant that “if he would arrange his then existing indebtedness by payment, or obtaining an extension thereof, or in any other way, and in case he arranged a certain claim then in suit against this defendant, of Strahlheim & Hertz, of Paris, France, amounting to $16,000, which claim was contested and disputed by defendant, and which claim this defendant then and now believes was not valid to any extent,” the plaintiff would give the defendant credit in not less than $25,000, and would deliver certain quantities of velvet and silk of the value of $25,000, theretofore ordered by defendant, &c.; “ and this defendant likewise agreed on his part, to obtain said extension and arrangement.” The answer avers that the defendant did, “by payment and arrangement with his creditors obtain such extension.” But it does not show that he arranged the claim of Strahlheirn & Hertz. It avers that he made and executed his bond in the sum of $5,000, to secure which his wife executed a mortgage upon her real estate, “for the express purpose of procuring the discontinuance of such suit of Strahlheim & Hertz, and for the purpose of carrying out and executing the terms of said agreement.” It no where avers that the suit was discontinued, or the purpose effected. It only alleges that the defendant notified the plaintiff of his settlement of the Stralheim & Hertz suit.
    The Court at General Term (after stating the facts as above), said :—“ This does not show, that there was a settlement. If the settlement of the claim was a condition precedent, or was part of the consideration, it is not the same as a discontinuance of the suit, upon the claim, or a settlement of the suit. The claim might survive both. It is urged that the defect in these respects is remedied by a further allegation that c this defendant in all respects carried out his agreement on his part.’ Such an allegation, if intended to plead that the defendant had performed, as conditions precedent, what is referred to as the agreement on his part, is ineffectual to that end. The only relief from pleading, as was required at common law, the doing the acts claimed to be the performance of the conditions, is found in section 533 of the Code of Civil Procedure. 1 In pleading the performance of a condition precedent in a contract, it is not necessary to state the facts constituting performance, but the party may state generally that he duly performed all the conditions on his part.’ To take the advantage of this statute it is necessary to plead, substantially in the words of the statute,- and the answer does not plead in that way. If the matters form the consideration, the thing done should be specifically alleged. If again, the answer intends to show the performance of an agreement made by defendant, the acts done should be averred. As the answer on this point now stands, the averment of performance of the agreement on defendant’s part is a statement of a conclusion or opinion. As the plaintiffs were to be bound only in case the. defendant should ‘arrange’ Strahlheim & Hertz claim, and as the-answer does not allege that it was arranged, the defendant shows no cause of action or valid counter- claim. The matters set up in the answer were not a defense, nor did they constitute a valid counterclaim.”

      Melville H. Begensberger, for appellant.

      Charles O. Brewster, Jr., for respondents.
   Opinion

Per Curiam.

Judgment affirmed, with costs.


text:
    EDWARD R. GOODRICH, Appellant, v. HENRY GEBHARD, Respondent.
    Trial— Waiver— When party loses his right to claim on motion for new trial, that the facts are not sufficient to sustain the verdict—Witness-interest of in recovery may be shown to affect credibility, though the fact that he is interested is admitted.

    Before O’Gorman and Ingraham, JJ.

      Decided March 1, 1880.
    Appeal from judgment entered on verdict in defendant’s favor.

      Action on a note made by defendant to one Chase, indorsed to plaintiff.
    The defense was, that the note was given for advertising for one year, payable monthly, that at the expiration of a month the agreement was canceled and the advertisement was withdrawn, and that month paid for.
    The Court at General Term, said :—“By the verdict of the jury it is established that it was part of the agreement between the parties when the contract in suit was made, that defendant should have the option to discontinue the advertisement at the end of any month ; that on such discontinuance the amount agreed to be paid should cease, and that defendant exercised his option to discontinue after the first month. No objection to the proof of such verbal agreement was made; no motion was made for judgment at the end of defendant’s case, and there was no exception to the charge of the court, or request to charge which was refused. Under such circumstances, defendant loses his right to insist that the facts were not sufficient to sustain the verdict, and the question cannot be raised on the motion for a new trial (Rich v. Solomon, court of appeals, MSS. Opinion). The appellant insisted on but two exceptions. First, that the verdict was against the weight of evidence; second, that the court erred in admitting evidence of the interest of the witness Chase in the cause of action. As to the first, as before stated, we do not think that the record presents the question, as there was no exception taken at the trial which raises the point; but if it did, an examination of the evidence has satisfied us that the verdict was sustained by the evidence. ... As to the evidence of the interest of Chase in the claim in suit, it is difficult to see on what ground it could have been excluded. A mere admission that he was interested in the recovery would not preclude the evidence of the interest of the witness being shown to affect his credibility. The witness was put on the stand to prove a transfer of the claim from himself to plaintiff, and the questions asked were legitimate cross-examination.”

      John Brooks Leavitt, for appellant.

      Lewis Sanders, for respondent.
   Opinion

Per Curiam.

Judgment affirmed, with costs.


text:
    HANNAH W. ANDREWS, General Guardian, &c., v. JOHN TOWNSHEND, et al.

      General guardian—when g^'operly made plaintiff—when properly appointed by surrogate, though infant is non-resident—Ejectment, judgment in, when not sustainable by reason of insufficient description of lands.

    Before Sedgwick, Ch. J., and Freedman, J.

      Decided May 3, 1886.
    Exceptions of defendants ordered to be heard in first instance at general term.
    Action in ejectment.
    The Court at General Term said :—“This action was begun before September 1, 1880 (Subd. 11, § 3347, Code Civ. Pro.). The general guardian was properly made plaintiff. Although the infant was non-resident, the appointment of plaintiff as general guardian by the surrogate was valid under chapter 442, Laws of 1875 ; chapter 59, Laws of 1870. . The grave questions that were raised by defendants’ counsel on the argument should not be examined now on account of fundamental defects. The judgment directed is for the possession of the lands described in the complaint. They cannot be identified by metes and bounds given in the complaint. The only measure is one along Eighty-fifth Street. Nor can they be identified by the names given to the lots, for they are given as both 200 and 201 on the Clinton map, and as 44, 45, 46, 47, 43 and 49 on block 469 on the Nineteenth Ward. map. In fact, the lots on the Ward map are not the same as the lots on the Clinton map. The testimony on the subject is vague and insufficient. Probably on the trial there was more testimony than appears in the printed case, or there were admissions made, which did not appear on the argument. As the case stands, the judgment could not be executed by the sheriff using only executive functions. The complaint should be amended before a new trial.”

      John Andrews, for plaintiff.

      John Townshend, for defendants.
   Opinion by Sedgwick, Ch. J. ; Freedman, J., concurred.

Exceptions sustained; verdict set aside; new trial ordered, with costs to abide event.


author: Pee Curiam.

text:
    LUCINDA H. BRUSH, Respondent, v. George Evans, Appellant.

      Chattel Mortgage—right of mortgagor after default—Stoddard v. Denison, 2 Sweeney, 54, followed as to action for wrongful destruction of such eguity.

    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided May 3, 1886.
    Appeal by defendant from judgment for plaintiff entered upon verdict of jury, and from order denying motion for new trial, made upon the minutes.
    The case below resolved itself into an examination of the rights of the plaintiff as a mortgagor of chattels, against the defendant, her mortgagee. There had been, as was determined by the court, a default by the plaintiff in performance of the condition. The defendant had sold under the mortgage. The plaintiff claimed that the sale Was intentionally so noticed and conducted that the chattels did not call for as much as they would have sold for on a fair sale, and that she was entitled to recover as damages the full value of the goods sold, less the amount due upon the mortgage. The jury was charged that such were the rights of the plaintiff. Proper exceptions were taken by the defendant.
    The Court at General Term (after stating the facts as above), said :—“ The case of Stoddard v. Denison (2 Sweeny, 54), makes it necessary to hold that after default, the interest of the plaintiff, as to the chattels, was only an equity of redemption, and that to enforce this right it was requisite, primarily, that the plaintiff should pay, tender, or offer in the complaint to pay the amount due upon the mortgage. There may be some plausibility in the proposition that if the equity of redemption be destroyed wrongfully, an action for damages will lie. This was involved in the case cited, and we should follow it.

      George F. Martens, for appellant.

      Wakeman & Latting, for respondent.
   Opinion

Pee Curiam.

Judgment and order reversed, with costs to abide event.


text:
    HENRY PROUSE COOPER & CO., Respondent, v. ALEXANDER D. FINDLEY, Appellant.

      Practice—Inquest not oq>ened in this case on affidavit of merits, &e.

    Before Sedgwick, Ch. J., and Ingraham, J.

      Decided May 3, 1886.
    Appeal by defendant from an order denying motion of defendant to open judgment against defendant entered after issue upon an inquest at trial term.

      The motion was based on an affidavit as to facts, and on an affidavit of merits. The opposing affidavits put in by the plaintiff claimed that the defendant had admitted the embezzlement alleged in the pleadings and that his counsel made a similar admission, and the said affidavits stated other grounds against granting the favor asked for.
    The Court at General Term said :—“ The discretion of the judge was properly used. It would not have been proper to open the default. The statements as to the reason for defendant’s not appearing are vague and indefinite and the affidavit of merits was more than counterbalanced by plaintiff’s affidavits. The affidavit of merits would be true, if the plaintiff had made an insignificant error in his demand.”

      Sutherland Tenney, for appellant.

      Beckham & Tyler, for respondent.
   Opinion

Per Curiam.

Order affirmed, with $10 costs.