text:
    Otto Hoske, Appellant, v. Henry Gentzlinger, Respondent.

      Landlord and tenant — protection given by chapter 357 of 1889 — when notice is unnecessary — right of a landlord to take peaceable possession of leased premises.

    Chapter 357 of the Laws of 1889 was enacted for the benefit of tenants ; it requires from a landlord a notice of his intention to terminate a tenancy and protects a tenant from removal without his being afforded an opportunity to secure other property, but it has no application where the tenancy is terminated by the act of the tenant. In such a case there is no necessity for serving the notice provided for thereby.
    There is no question as to the right of a landlord to the possession of his premises upon the termination of a lease thereof. He may enforce such right through a judicial proceeding, but he is entitled to re-enter upon the property without judicial process provided he can do so without violence or a breach of the peace.
    The true owner may always regain possession of his property in a peaceable manner. When the entry of the landlord is peaceable he may lawfully resist any act of a former occupant to regain possession.
    Appeal by the plaintiff, Otto Hoske, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 3d day of April, 1894, upon the verdict of a jury rendered after a trial at the Kings County Circuit dismissing the plaintiff’s complaint on the merits, and also from an order entered in said clerk’s office denying the plaintiff’s motion for a new trial.

      Meyer Auerbach, William H. Gohen and Henry L. Bcheuermcm, for the appellant.

      Alfred é¡ Gha/rles BtecMer, for the respondent.
   Brown, P. J.:

This action was brought to recover damages for an alleged unlawful entry upon property on Graham avenue, in the city of Brooklyn, of which the plaintiff claimed to be in possession as a tenant of the defendant and for injury to property therein.

It appeared that the plaintiff bad been in occupation of the premises as a monthly tenant of the defendant for upwards of three years. On June 1,189T, he paid the rent for that month in advance to 'William Gentzlinger, the defendant’s son and agent, and received a receipt which stated that the rent was for the month “to commence June 1, 1891, and ending July 1, 1891.”

'William Gentzlinger testified that when plaintiff paid him that rent he told him that he had bought a house on JVIeeker avenue and that he would move out of defendant’s house at the end of June. That the witness could put up a notice “ to let,” and if any one came to see the house he would let them come in and would show it to them. Thereafter two notices were put on tlie premises; one was, “ this house to let,” and the other, “ this business will remove to 50 Meeker avenue.” The former remained on the house until a short time prior to July first, when the house was rented to another tenant, and the latter until it was removed by the defendant’s agent.

. On July first the plaintiff tendered to William Gentzlinger the rent for the month of July, which was refused, and in the afternoon of that day defendant, by his agent, broke open the door of the store on the first floor of the building and removed therefrom such property as was then therein. The amount and value of this property was in dispute, but it is of no importance upon this appeal.

By chapter 357, Laws of 1889, it is provided: “No monthly tenant shall hereafter be removed from any lands or. tenements in the city of New York or in the city of Brooklyn on the grounds of holding over his term (except when the same expires on the first day of May), unless at least five days before the expiration of the term the landlord or his agent serves upon the tenant, in the same manner in which a summons in summary proceedings is now allowed to be served by law, a notice in writing to the effect that the landlord elects to terminate the tenancy, and that unless the tenant removes from said premises on the day on which his term expires, the landlord will commence summary proceedings under the statute to remove such tenant therefrom.”

The court charged the jury that, if the tenant gave notice of his intention to quit at the end of the month it was not necessary for the landlord to give the five days’ notice required by law, and that the defendant had a right to take possession on July first, to which, the plaintiff took an exception.

We are of the opinion that this charge was correct.

The statute quoted was enacted for the benefit of tenants. It required from a landlord a notice of his intention to terminate a tenancy, and protects tenants from removals without being afforded an opportunity to secure other property. But it has no application to a case where the tenancy is terminated by the act of the tenant. In such a case there is no reason that the landlord should serve a notice, and such a requirement would be a useless one.

Yhe plaintiff having terminated the tenancy it was his duty to remove from the property on July first, and the defendant was entitled to take possession provided he could do so without violence or a breach of the peace. As to the landlord’s right to possession at the termination of the lease there can be of course no question. He might enforce such right through a judicial proceeding, but he was entitled to re-enter on the property without judicial process provided Ire could do so without violence or a breach of the peace. The true owner may always regain possession in a peaceable manner of his. own property, and when the entry is a peaceable one he may lawfully resist the attempt of a former occupant to regain possession.

The testimony shows that prior to July first the plaintiff had removed his family and substantially all his property to the house on Meeker avenue. The store was unoccupied and the door locked. It was not wrongful to the plaintiff for the defendant' to break the lock on the store door. In doing so defendant injured no property except his own, and the act was not an invasion of any of the plaintiff’s rights.

There are other exceptions in the case, but they are without merit and require no notice.

The judgment must be affirmed, with costs.

Cullen and Dykman, JJ., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Dykman, J.:

license: Public Domain

text:
    William H. Burroughs, Appellant, v. Tradesmen's National Bank of the City of New York, Respondent.

      Bank — failure to pay a customers cheek — measure of damages.

    The failure of a bank, which has on deposit funds sufficient for the purpose, to pay the check of a depositor, renders it liable either in tort or upon contract.
    Where, however, the depositor brings an action against the bank as for a breach of contract, and the failure of the bank to pay is not charged as willful, and no special damages are alleged or proved, and the check has finally been x>aid, the plaintiff is not entitled to recover more than nominal damages.
    Appeal by the plaintiff, William II. Burroughs, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 20th day of March, 1891, upon the verdict of a jury for thirty-four cents in favor of the plaintiff, rendered after a trial at the Kings County Circuit.

      McGuire & Low, for the appellant.

      Stern & Rushmore, for the respondent.
   Dykman, J.:

This suit is brought to recover damage for the failure of the bank to pay on presentation a check drawn by the plaintiff against his account kept with it.

There is no charge in the complaint of any willful or wrongful act on the part of the defendant, and there is no allegation of special damages.

The plaintiff is, therefore, confined to the recovery of such damages as the proof shows was sustained.

The contract which the law implies between a bank and its depositor, is that the bank will hold the funds and pay them out according to the order of the depositor.

A failure in the performance of the duty which the law thus imposes upon the bank constitutes a breach of the contract which the law implies, and renders the bank legally liable either in tort or upon contract. (Citizens' Nat. Bank v. I. & T. Bank, 119 N. Y. 199.)

In this case the check of the plaintiff was dated October 15, 1891, and it is to be gathered from the testimony, although not stated explicitly, that it was presented to the bank for payment the same day.

The check was not honored at that time, but on the twentieth day of the same month, five days afterward, the error was discovered and the check was paid.

At the close of the testimony on the part of the plaintiff the counsel for the defendant moved for a dismissal of the complaint upon the ground, among others, that the action was based upon the contract and not upon a tort; that there was no allegation' of special damages and no charge of willful or malicious injury, and that the plaintiff had failed to establish a cause of action.

The motion to dismiss was denied, and the trial judge directed a verdict in favor of the plaintiff for thirty-four cents, the interest upon the check for five days.

The denial of the motion to dismiss the complaint was not erroneous. This must be deemed an action for the recovery of damages for a breach of the implied contract on the part of the bank to pay out the money of the plaintiff according to his order. There was a technical breach of the contract, and for that the plaintiff is entitled to a recovery.

If the bank had not paid the money the measure of damages would be the amount of the check.

Inasmuch, however, as the check was paid by the bank the plaintiff sustained no actual damage. He did not lose the interest upon the money called for by tlie check. If any one lost the use of that money it was the payee of the check. The bank was under no obligation to pay interest to the plaintiff, and he never made any effort to draw the money for his own use.

The verdict was, therefore, excessive, but it cannot be disturbed because the defendant has not appealed.

As the check was paid the plaintiff was entitled to recover nominal damages, although he had sustained none. (Citizens’ Nat. Bank v. I. & T. Bank, supra, 202.)

This case and the cases to which reference is made, teach us that the plaintiff under the facts in this case is entitled to nominal damages only, and he is entitled to that simply because there was a technical breach of the implied contract.

The judgment should be affirmed, with costs.

Cullen, J., concurred; Brown, P. J., not sitting.

.Judgment affirmed, with costs.


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    James Finlay and Another, Appellants, v. John J. Leary, Respondent.

      Attorney and client — transactions between them, when presumed to be unfair — equity.
    The law views all transactions between attorney and client- with caution, and the burden rests upon the attorney to show that his conduct was fair.
    Any arrangement made by the attorney’s advice for his own benefit is inconsistent with the fiduciary relation, and is impressed by the law with the presumption of invalidity.
    The correction of such abuses is a well-recognized head of equity jurisprudence.
    Appeal by the plaintiffs, James Finlay and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 24th day of April, 1894, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing the complaint upon the merits.

      Hector M. Hitchings, for the appellants.

      John J. Leary, respondent, in person.
   Dykman, J.:

This is an action in equity to procure tlie nullification of certain settlements and agreements between tbe plaintiffs and tlie defendant, for tlie reason that they were unconscionable and unjust, and because they were unjustly extorted from the plaintiffs by the defendant. The action has for its object also the procurement of an accounting for money wrongfully withheld from the plaintiffs by the defendant.

The defendant is a lawyer and he was the attorney and counselor of the plaintiffs in the transactions specified in the complaint.

In the view we take of the case it will be unnecessary to make any detailed statement of the allegations in the complaint or of the proof made in support upon the trial.

The complaint was dismissed by the trial judge and the plaintiffs have appealed from the judgment of dismissal.

Tlie transactions between the plaintiffs and the defendant related to dealings in real property, and the latter was the confidential adviser of the former in respect to all of them.

The evidence in the case discloses a mode of advice, persuasion and coercion on the part of the defendant, which tended in each instance to his benefit and to the disadvantage and loss of the plaintiffs.

It is impossible to escape the conclusion that an undue advantage was taken of the confidential relations existing between the defendant and the plaintiffs to the aggrandizement of the former, and a proper case is thus presented for the interposition and scrutinization of a court of equity, which always scrutinizes closely all transactions between attorney and client and all other parties occupying confidential relations.

The law views all transactions between such parties with caution and waits for evidence of their fairness.

Any arrangement made by the advice of a fiduciary for his benefit is inconsistent with his relation, and is impressed by the law with the presumption of invalidity.

The correction of such abuses is a well-recognized head of equity jurisprudence, and in this case the only remedy of the plaintiffs and their only method for the procurement of the relief which they seek is by an appeal to a court of equity.

The foregoing statements are justified by the following authorities : Ford v. Harrington (16 N. Y. 285); State of Michigan v. Phœnix Bank, (33 id. 25); Bain v. Brown (56 id. 285).

The evidence established a plain cause of action in favor of the plaintiffs for the relief demanded in their complaint, and the judgment should be reversed and a new trial granted, with costs to abide the event.

Brown, P. J., and Cullen, J., concurred.

Judgment reversed and a new trial granted, costs to abide the event.


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    John J. Butler, Respondent, v. The Steinway Railway Company of Long Island City, Appellant.

      When a verdict will he set aside.

    Appellate courts interfere cautiously with the verdicts of juries where there are no errors of law and only questions of fact are involved, but where a verdict indicates the presence of misapprehension or prejudice it will he set aside.
    Appeal by the defendant, The Steinway Railway Company of Long Island City, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 81st day of October, 1894, upon the verdict of a jury rendered after atrial at the Queens County Circuit, with notice of an intention to bring up for review upon the appeal an order made on the I9th day of October, 1894, denying the defendant’s motion upon the minutes for a new trial.

      Eugene L. Busche, for the appellant.

      McDonough & Collins, for the respondent.
   Dykman, J.:

The verdict in favor of the plaintiff in this action is palpably unjust and should never receive the sanction of this court. There are sufficient facts undisputed to convince the judicial mind of the injustice done to the defendant by this judgment.

The plaintiff entered one of the cars of the defendant with a dog, and when he was informed that the presence of the animal upon the cars was a violation of a rule of the company, he refused to remove him.

By his persistence in transgressing the rule of the company he forfeited his right to continue in the car and conferred upon the conductor the right to remove him therefrom.

The trial judge charged the jury that the conductor had the right to remove the plaintiff from the car and to use as much force as was necessary for that purpose.

That reduced the case to the question whether excessive violence was exerted in the removal of the plaintiff from the car. Upon that question the plaintiff held the affirmative, and the preponderance of the evidence is against him.

The testimony shows that he was perceptibly under the influence of intoxicating liquor, and such intoxication would naturally obscure his intellect, and destroy his power to recollect the particulars of the transaction.

Independent of his interest, therefore, and his natural enmity, his testimony is very unsatisfactory.

The testimony, taken together, fails to prove the use of unnecessary force. He was not struck or kicked, and the conductor manifested no anger. The plaintiff was pushed from the car. lie was injured, but his injury was the result of his own misconduct.

Appellate courts interfere cautiously with the verdicts of juries where there are no errors of law, and only questions of fact are involved. But there can be no hesitation in the prevention of injustice.

The verdict in this case indicates the presence of misapprehension or prejudice.

In our view twelve fair-minded men, free from prejudice and misconception, will not find upon the facts of this case that the conductor of the car used unnecessary violence in the removal of the plaintiff therefrom.

The judgment-and order denying the motion for a new trial upon the minutes of the court should be reversed, and a new trial granted, with costs to abide the event.

Brown, P. J., concurred ; Cullen, J., not sitting.

Judgment and order reversed and new trial granted, costs to abide event.


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    John C. Orr and Others, Appellants, v. Charles Nagle and Others, Respondents.

      Application of payments — what is a failv/re of a debtor to direct.

    While it is tlie right of the debtor, in making a payment, to direct its application, if he fails to do this the creditor may apply the payment as he pleases.
    Certain lumber merchants had a running account with a contractor who was engaged in building a house for one Willert, from whom the contractor received money on account of Willert’s indebtedness to him, and theieafter, while making a payment upon his own account to the lumber merchants, the contractor stating that it was the money of Willert, said : “ And I give it to you on account.”

      Held, that such a statement did not constitute a direction by the contractor as to the manner of applying the payment; and that the lumber merchants might properly credit it upon another and older debt existing in their favor against the contractor.
    Appeal by the plaintiffs, John. C. Orr and others, from a judgment of the County Court of Queens county in their favor, entered in the office of the clerk of the county of Queens and dated October 20, 1894, upon the decision of the court rendered after a trial before the court without a jury, in so far as it fixed the plaintiff’s recovery at $3J5.28, with interest and costs, instead of $T25.28, with interest and costs.

      Alfred B. Cruikshank and Charles L. Pashley, for the appellants.

      A. T. Payne, for the respondent Muller.

      S. B. & D. Noble, for the respondent Willert.

      Matthew Marx, for the respondent Marx.

      Arthur M. Sanders, for the respondent Sherwood.
   Dykman, J.:

This action is brought for the foreclosure of a mechanic’s lien. The defendants Nagle & Sons were contractors for the building of a house for the defendant Willert.

The plaintiffs furnished materials to the contractors for the construction of the building, amounting in value to the sum of $'725.28, and charged the same to Nagle & Sons in the general account which they bad against them for lumber furnished for this house and for other buildings.

The plaintiffs filed a mechanic’s lien against the land and building of Willert for $725.28, the full amount of their claim, and the defendant Muller filed a second lien upon the same premises for $LU. The amount due from the owner to the contractors was $1,031.36.

The cause was tried before the county judge of Queens county, and he found that the plaintiffs had furnished materials to the amount of $725.28 in value, but that $350 had been paid on account thereof.

The plaintiffs have appealed from the judgment entered upon that decision.

The case turns here, as it did below, upon the application of payments. While the plaintiffs were delivering the material for the building in question to Nagle & Sons the latter paid them $100 at one time and $250 at another, and the plaintiffs credited and applied those payments to another and older account which they had against Nagle & Sons. The defendant Midler now claims that the sum so credited upon the old account should have been applied to the account for the material used in' the building of Willert, and the county judge so found and decided.

There is no proof that Nagle gave any direction for the application of the payments to any particular account. On the contrary, there is proof that no such direction was given.

The payments were made to Biela, an agent of the plaintiffs, and he testified positively that no such direction was received.

The defendant Claus Nagle was called as a witness for the defendant, and said this, among other things: “ Q. Did you tell Mr. Biela that you got this money from Willert? A. Yes. Q. That this was to be applied on the Willert job ? A. No, not that exactly ; but I told him that that was money of Mr. Willert, ‘ and I give it to you on account.’ ”

Neither Nagle nor Willert raise any objection to the application made by the plaintiffs of the payment of the $350, but the county judge seems to have assumed and decided that it was the right of Muller, as a subsequent lienor, to have the payment applied to the payment of the material furnished for the building of Willert because the money came from him. The theory is faulty and erroneous.

The money was paid by Willert to Nagle on account of his indebtedness, and when it was delivered to the latter it became his absolute property, and the former ceased to have any interest or equity in it or any right of control over it.

Nagle was under no obligation to appropriate the money in any particular manner. Although he obtained it from Willert for the purpose of paying it to Biela, yet he was not obliged to pay it to him. He had the power and the right to appropriate it as he pleased.

It was his right when he paid the money to Biela to direct its application to the payment of the account for materials furnished for the Willert building, but he did not do so. Tie told Biela he gave it to him on account, but he did not specify any particular account upon which he so ¡said it. That left the plaintiffs at liberty and conferred upon them the right to apply the payment at once to either one of their accounts or claims against Nagle. They accordingly applied it at the time to an account that they had against Nagle which was older than that for the material for the Willert building. (Sheppard v. Steele, 43 N. Y. 60; Mack v. Colleran, 136 id. 617.)

There being no dispute about the facts we can do justice to all the parties without reversing the judgment. The judgment should be modified by awarding to the plaintiffs the full amount of their claim, $725.28, with interest from December 2,1893, with the costs of this court to be paid from the fund.

BeowN, B. J., concurred; Cüllen, J., concurred, but thought a new trial should be ordered.

Judgment modified so as to award to the plaintiffs the full amount of their claim, $725.28, with interest from December 2, 1893, with costs of this court to be paid from the fund.


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    Isabella Dougherty, Respondent, v. The Metropolitan Life Insurance Company, Appellant.

      Insurance — a waiver by the assured, in his application, of the protection of section 884 of the Gocle of Civil Procedure, makes competent the testimony of the attending physician.

    An application for a policy of life insurance contained the following stipulation: " The provisions of section 884 of the Code of Civil Procedure of the State of New York, and of similar provisions in the laws of other States, are hereby waived, and it is expressly consented and stipulated that, in any suit on the policy herein applied for, any physician who has attended or may hereafter attend the insured, may disclose any information acquired by him in any wise affecting the declarations and warranties herein made.”
    Upon the trial of an action brought by the beneficiary of the policy, to recover the amount thereof, the defendant attempted to prove by a physician who attended the assured the condition of his health when his application for the insurance was made.
    The court excluded the evidence, upon the plaintiff’s objection ; not, however, upon the ground that the evidence would disclose confidential communications or facts which would tend to disgrace the memory of the patient.

      Held, that the exclusion cf the proposed evidence was erroneous;
    That such exclusion was not justified by the fact that the waiver of the provisions of section 884 of the Code had been made by the assured himself before the trial, and that they had not “been expressly waived on such trial or examination by the personal representatives of the deceased patient,” within the language of section 886 of the Code relative to such waiver;
    That it was competent for the assured to waive a statutory provision to whose benefit he was entitled, and that the time of the waiver was immaterial;
    That the stipulation was not against public policy, inasmuch as the evidence would have related simply to the physical condition of a private person, a matter in which the public had no interest.
    Appeal by the defendant, The Metropolitan Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 3d day of October, 1894, upon the verdict of a jury rendered after a trial at the Richmond Circuit, and also from an order entered in said clerk’s office on the 9th day of October, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      Frederick B. Campbell, for the appellant.

      W. J. Powers, for the respondent.
   Dykman, J.:

This is an action by tlio plaintiff as the beneficiary under two policies of insurance issued by the defendant upon the life of one Francis Farley. The cause was tried at the Circuit before a jury, and' a verdict was rendered in favor of the plaintiff. .

From the judgment entered upon the verdict, and from the order denying the motion for a new trial upon the minutes of the court, the defendant has appealed to the General Term of the court.

Upon the trial the counsel for the defendant sought to prove, by a physician who attended the insured at that time, the condition of the health of the insured when the application for the second policy of insurance was made.

The counsel for the plaintiff made objection to such testimony, and it was excluded by the trial judge upon the ground that its admission would be against public policy.

The counsel for the defendant excepted to the exclusion of the testimony, and that exception presents the first question for determination upon this appeal.

The question depends for its solution upon the interpretation of certain sections of the Code of Civil Procedure.

Section 834 of that Code is this: “A person duly authorized to practice physic or surgery shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.” Sections 833 and 835 contain similar prohibitions against ministers of religion and attorneys and counselors at law.

Then follows section 836, which contains this language : “ The last three sections apply to any examination of a person as a witness unless the provisions thereof are expressly waived upon the trial or examination by the joerson confessing, the patient or the client. But a physician or surgeon may upon a trial or examination disclose any information as to the mental or physical condition of a patient who is deceased, which he acquired in attending such patient professionally, except confidential communications and such facts as would tend to disgrace the memory of the patient, when the provisions of section eight hundred and thirty-four have been expressly waived on such trial or examination by the personal representatives of the deceased patient.”

The application for the second policy contained this stipulation : “ The provisions of section 831 of the Code of Civil Procedure of the State of New York and of similar provisions in the laws of other States, are hereby waived, and it is expressly consented and stipulated that in any suit on the policy herein applied for, any physician who has attended or may hereafter attend the insured, may disclose any information acquired by him in any wise affecting the declarations and warranties herein made.”

It does not appear that the testimony sought from the physician would have disclosed confidential communications or any facts which would tend to disgrace the memory of the patient, and the evidence was not excluded upon that ground.

The waiver, therefore, was not inhibited by the exception from the right to waive the privilege contained in section 831 of the Code.

The exclusion of the evidence must, therefore, be upheld, because the waiver was not made at the trial, or because the inclusion thereof in the application was against public policy.

The statute imposed silence upon the physician for the protection of the patient. The Legislature locked up the secret and gave the key to the patient. He can forego the privilege and unlock the mouth of the doctor. The statute requires that, to be done expressly upon the trial, but there is no method prescribed for the accomplishment of the object.

If the patient be alive an entry upon the record at his trial by his counsel would be sufficient. In case of his inability to attend the trial a written stipulation signed by him and entered upon the record would remove the prohibition.

That being so, it must certainly be immaterial when the stipulation is signed. In this case it was signed long before the trial in anticipation of that event, and with the design of having it used thereat. It cannot be assumed that the insertion of the stipulation in the application was an idle ceremony. It was important to the company, and entirely within the competence of the assured. The reasonable construction of the statute, therefore, is that the provisions are expressly waived upon the trial if a proper stipulation to that effect be produced thereat and entered upon the record, regardless of the time when the waiver was executed.

We are now to inquire wlietber tlie provision for a waiver is contrary to public policy. The phrase is comprehensive and its limit of operation is undefined. It may be asserted, however, that no action, proceeding or method falls within its range, except such as affects the public. A mere private act does not concern the public, and, therefore, such an act can never be contrary to public policy. Before a statute or a contract can be declared void because it is in contravention of public policy, the objection to it must be based upon seme distinct principle. The general public can have no interest iu the execution of the statute in question. Its operation can be neither injurious nor disadvantageous to the public, and it is not opposed to good morals. It simply prescribes a rule of evidence between party and party upon the trial of a cause.

The secrecy imposed upon the physician by the statute is evidently for the benefit of the patient. His communications are privileged, but the public has no concern in their suppression. If he waives his privilege it cannot be insisted upon to exclude the testimony.

It has ever been held that parties may waive their legal rights and make stipulations in legal proceedings which shall control their rights in the conduct of a litigation. (Matter of N. Y., L. & W. R. R. Co., 98 N. Y. 447.)

What possible interest can the public have in the exclusion of the evidence of a physician respecting the physical condition of a private individual where the patient himself raises no objection to such disclosure ?

.The chief justice who expressed the opinion of the Supreme Court of tlie United States in the case of Hunt v. Blackburn (128 U. S. 470) laid down the following rule upon the subject under consideration here, although in that case the question had reference to the relation of attorney and client: But the privilege is that of the client alone, and no rule prohibits the latter from divulging his own secrets, and if the client has voluntarily waived the privilege it cannot be insisted on to close the mouth of the attorney.”

This statute has been frequently under consideration before the Court of Appeals in this State, and it has ever received a broad and liberal construction, and been so applied as to permit no invasion of the rights and privileges of the persons for whose benefit it was enacted.

Judge Andrews gave a very lucid exposition of tbe statute in bis opinion in the case of Buffalo Loan Trust & S. D. Co. v. K. T. & M. M. A. Association (126 N. Y. 455), and closed with these words: “ The statute should have a broad and liberal construction to carry out its policy. By reasonable construction it excludes a physician from giving testimony in a judicial proceeding in any form, whether by affidavit or oral examination involving a disclosure of confidential information acquired in attending a patient, unless the seal of secrecy is removed by the patient himself.”

So far as we can discover, every case in the Court of Appeals is in harmony with the views thus expressed.

Ye are committed to the same doctrine by our decision in the case of Foley v. The Royal Arcanum (78 Hun, 222).

These considerations lead to the conclusion that the judgment arid order should, be reversed and a new trial granted, with costs to abide the event.

Brown, P. J., concurred; Cullen, J., not sitting.

Judgment and order reversed and new trial granted, costs to abide event.


author: Dykman, J. :

text:
    Orpha D. Van Houten, Appellant, v. Isaac E. Pye, Respondent.

      Statute of Frauds —sales—purchaser in good faith of MU of lading — protection afforded by a bill of lading.

    In an action brought for the conversion of personal property, it appeared that in August the defendant ordered of certain dealers in Ohio a carload of hay of a value greater than fifty dollars, under an agreement that the charges for transportation should be paid by the defendant.
    In October the vendors drew on the defendant a draft, with a bill of lading attached, for the price, which the defendant refused to pay, or to accept the hay, upon the ground -of delay in its delivery, except at a reduced price, which he offered to pay. To this proposition the defendant received no answer. At this time the hay was in transit and arrived two weeks later, when the defendant was notified by the freight agent at his residence that a carload of hay from the same vendors had been received for him. The defendant, supposing that the vendors had accepted his offer of a reduced price, paid the freight and used the hay. It appeared that when the vendors received the defendant’s letter declining to pay the original price, they sold the hay to the plaintiff, drew on her for part payment, accompanying tlic draft 'with, the bill of lading, and that the plaintiff had paid the draft.
    Upon the trial of the action the complaint was dismissed.

      Held, that the dismissal of the complaint was erroneous;
    That the contract was void under the Statute of Frauds, inasmuch as there was no note or memorandum of the contract, and as none of the goods were received, and no part of the purchase money was paid before the contract was repudiated; That the plaintiff was a purchaser in good faith and for value;
    That the defendant never had title, while the plaintiff, although she never had possession, acquired an absolute title upon paying the draft;
    That the defendant gained no rights by paying the freight, as at that time he received no bill of lading, and as he did not and could not then know that the vendors had accepted his offer of a reduced price.
    Appeal by the plaintiff, Orplia D. Van Ilouten, from a judgment of the County Court of the county of Rockland in favor of the defendant, entered in the office of the clerk of the county of Rockland on the 3d day of July, 1894, upon the verdict of a jury dismissing the complaint, and also from an order made upon the trial of the action for such dismissal, and directing a verdict for the defendant.

      Frank Comesky, for the appellant.

      Snider & Hopper, for the respondent.
   Dykman, J. :

In the month of August, 1893, the defendant purchased a carload of baled hay of Rupright Brothers of Wren in the State of Ohio, at sixteen dollars and fifty cents a ton, to be delivered at Nyaclc in Rockland county. The freight charges for the transportation of the hay were to be paid by the defendant and credited upon the purchase price.

On or about the 22d day of October, 1893, a bill of lading for the hay, accompanied by a sight draft upon the defendant for the price thereof, was received at the Nyack National Bank.

The defendant refused to honor the draft, and assigned as a reason therefor the long lapse of time since the purchase of the hay.

The draft was returned to the drawers, Rupright Brothers, and the defendant wrote them a letter in which he stated that he would not accept the hay at that late day at the price he had agreed to pay, but he would pay them fifteen dollars and fifty cents a ton if they would allow it to come in at that price. At that time the car of hay was on its way to Nyack.

The defendant received no answer from Rupright Brothers to his letter to them containing his refusal and proposition.

On the 3d day of November, 1893, the defendant was notified by the freight agent at Nyack that a carload of hay from Rupright Brothers had been received for him.

Acting upon the supposition that the consignors had accepted his last proposition, the defendant paid the freight upon the hay, which was forty-three dollars, and unloaded it and delivered it to his customers.

The suit is brought against the defendant for the wrongful conversion of the hay, and the plaintiff bases her right to the hay upon the following facts:

Upon the receipt of the defendant’s letter rejecting the hay, Rupright Brothers sold the same to the plaintiff, who is a dealer in hay and grain at Nyack, and drew a draft on her for eighty dollars in part payment for the hay. That draft, with a bill of lading, was received at the Nyack National Bank on the 8th day of November, 1893, and was paid by the plaintiff on that day.

In the meantime the hay had reached Nyack, as we have seen, and had been received and sold by the defendant.

The cause was tried at a term of the Rockland County Court, and at the close of the plaintiff’s case a verdict in favor of defendant was directed by the court.

The plaintiff has appealed to this court from the order dismissing the complaint, and also from the judgment for costs entered upon the verdict.

In the further consideration of the case it may be assumed that the defendant had a right to repudiate his purchase of the hay and be absolved from his contract therefor by reason of the delay in the delivery of the property.

The assumption is justified as against the defendant, because it recognizes the legality of his action, and because his vendors acquiesced in his repudiation, and conceded his right to recede from his contract.

1-Iis refusal to accept tlie draft of bis vendors, and bis letter to them declining to receive the hay, terminated his right to the property, and he never acquired any right to the same thereafter. He made a proposition for a new purchase of the hay, but it was never accepted.

The defendant received no bill of lading for the-hay, and he had no legal right to it when he unloaded it from the car and sold it.

It is true he was misled by the notification of the freight master of the railroad company, but he knew he had no right to receive the hay, or, to make the statement more mild, he did not know he had any such right. He acted upon the supposition that his second offer had been accepted by his vendors, but the assumption was false, and he is himself responsible for all the complications which arose, for they all resulted from his refusal to accept the hay under his first contract.

Moreover, the evidence fails to disclose any agreement by the defendant for the purchase of the hay, although the case has been thus far considered upon the theory that he had such a contract.

Pie said he ordered the hay, but it does not appear, except by inference, that the order was accepted. There was, therefore, no note or memorandum of the contract in writing, none of the goods were received previous to the repudiation, and no part of the purchase money was paid.

If, therefore, it can be assumed that there was a contract for the purchase of the property, it was void under the Statute of Frauds, and the defendant obtained no property in the hay.

Turning now to the consideration of the rights of the plaintiff, we find them foreshadowed in the foregoing observations. The plaintiff is a purchaser in good faith for value.

She bought the hay and paid for it, and thus obtained the absolute title to it immediately upon her purchase.

Although she never had the possession of the hay, she had the title, and that gave her the legal right to the possession.

The defendant had no right to the property, and his taking of the same was wrongful as against the plaintiff.

The defendant is placed in an unfortunate position without any apparent intention to do wrong. On the contrary, when he discovered that the plaintiff laid claim to the hay, he. made a proposition to adjust the difficulty amicably, and if his efforts at conciliation had been met by the plaintiff in the same spirit in which they were made, she would have sustained no loss, and the necessity for a lawsuit would have been saved.

Even in this view, however, we cannot disregard the rules of law to meet a hard case.

"We, therefore, reach the conclusion that the dismissal of the complaint was erroneous, and the judgment must be reversed and a new trial granted in the County Court, with costs to abide the event.

Brown, P. J., and Cullen, J., concurred..

Judgment reversed and new trial granted, costs to abide the event.


text:
    Rose Corley, Appellant, v. James McElmeel and Others, Appellants, Impleaded with Others, Respondents.

      Evidence — a surrogates decree rejecting a will of real estate is not binding in an action for its partition — right of a devisee thereunder to a fury trial.

    The will of Patrick Trenor, which related to real and personal estate, was offered for probate in the proper Surrogate’s Court and was rejected. Subsequently one of his heirs brought an action for the partition of his real estate and so framed her complaint as to test the validity of the will, alleging that it was void and ineffectual. A defendant who was the devisee under the will of the property sought to be partitioned answered, alleged that the will was valid and claimed rights under it.
    Upon the trial of the action the plaintiff offered in evidence the surrogate’s decree rejecting the will, which the court excluded. The answering defendant succeeded upon the trial and established the validity of the will.
    Held, that the ruling was correct;
    That the surrogate’s decree was not res adjudicata between the parties and had no effect upon the title of the devisee under the will which vested at the death of the testator;
    That any other construction would deprive the devisee of the right to a trial by jury in respect to the land devised.
    The distinction between decrees admitting wills to probate and those rejecting wills pointed out.
    Appeal by the plaintiff, Rose Corley, and by the defendants James McElmeel and others, from a judgment of the Supreme Court in favor of the defendant Annie E. Stover, entered in the office of the clerk of the county of Kings on the 28th day of June, 1894, upon the decision of the court rendered after a trial at the Kings County Special Term, and also from an order entered in said clerk’s office on the 31st day of May, 1894, denying their motion for a new trial made upon the minutes, with notice of an intention to bring up for review upon the appeal the decisions made in the action by Mr. Justice Kellogg and Mr. Justice Gaynor to the effect that the decree of the surrogate of the city and county of New York denying the probate of the alleged will of Patrick Trenor, deceased, was not conclusive as to any parties claiming under said will, nor as to any parties cited to appear or appearing in the said proceedings before the surrogate, and allowing the said will to be presented and proved in this action, and directing that the issue touching the validity or invalidity of the said will be tried by a jury in this action.

      Shepard & Quinn and Robert Sewell and Edward F. Dwight, for the plaintiff, appellant.

      Thomas Bracken and Joseph T. McKeon, for the defendants, appellants.

      Charles J. Patterson for Annie E. Stover, respondent.

      Ayres & Walker, for the executors, respondents.
   Dykman, J.:

This is an appeal from a judgment in favor of the defendant Stover.

The action was brought for the partition of real property which formerly belonged to Patrick Trenor, deceased.

Trenor died in February, 1888, leaving a last will and testament by which he devised the real property in question to Annie E. Stover. When the will was presented for probate to the surrogate of the county of New York it was contested, and at the close of the contest the will was rejected and probate thereof was refused.

Thereupon, this action was commenced for the partition of the property. The plaintiff and some of the defendants are heirs at law of Patrick Trenor. deceased.

The complaint is framed for the purpose of testing the validity of the will of Trenor, and contains an allegation that it is void and ineffectual.

The defendant Annie E. Stover answered and set up the will as a defense to the action, alleged its validity and claimed the property as devisee under it.

When the cause came on for trial a question arose respecting the effect of the surrogate’s decree rejecting the will, and a stipulation was made that the jury which had been impaneled should be discharged, and if the trial judge decided that the surrogate’s decree was not conclusive, then the issue touching the validity of the will should be tried before a jury at a subsequent term, and if the judge decided that the decree was conclusive against the will the plaintiff should prevail in the action.

The decree of the surrogate and certain other papers connected therewith were then received in evidence, and the decision respecting their effect was reserved.

Subsequently, the trial judge decided that the decree of the surrogate was not conclusive against the validity of the will and directed the issues respecting the same to be tried by a jury.

Pursuant to that direction the cause was tried before a jury and a verdict was rendered in favor of the defendant Stover, establishing the validity of the will.

Upon this last trial the counsel for the plaintiff offered in evidence the decree of the surrogate rejecting the will. The decree was excluded, and that exclusion presents the sole and only question involved upon this appeal.

A decree of a surrogate admitting to probate a will of real property establishes presumptively all the matters determined by the surrogate (Code Civ. Proc. § 2627), while a decree of a surrogate admitting to probate a will of personal property is conclusive as an adjudication upon all questions legally determined by the surrogate. (Code Civ. Proc. § 2626.)

Such are the effects of surrogates’ decrees -admitting wills to probate, but we are required now to ascertain and determine the effect of a decree rejecting a will of real property.

The first impression upon the mind on the presentation of the question is that such a decree can have no legal effect upon the will as a muniment of title to land. That conclusion is reached naturally from the nature and character of the will. It becomes operative upon the death of the testator, and the title of the devisee to the land devised becomes vested at that time. A failure to propound the will for probate can have no effect upon such title, because it is derived from the will. Its probate would be of no avail except to supply presumptive evidence of its validity, and that may be repelled at any time by contrary proof. (2 R. S. 58, § 15.)

Wills of real property may be used to establish a title, which they create in the same manner as a deed. In fact, they have sometimes been called statutory conveyances.

They may be introduced in evidence upon proper proof in any action to recover the property devised, or to defend the possession thereof. (Norris v. Norris, 32 Hun, 176.)

A will may be read in evidence as an ancient instrument when it has sufficient age and possession has been in accordance with it, without proof of its execution, the same as a deed. (Greenleaf’s Ev. § 21; Jackson v. Blanshan, 3 Johns. 294.)

The argument of the appellants is not only that the decree of the surrogate should have been received in evidence, but that it was res acbjudicata and a final determination of the rights of the parties.

The contention of the appellants, if successful, -would deprive the devisee of the constitutional and common-law right of trial by jury in respect to land devised by the will, and such deprivation is beyond the province even of the Legislature.

The foregoing views are supported by the decisions in the cases of Bogardus v. Clark (4 Paige, 623) and Harris v. Harris (26 N. Y. 437.)

Without further pursuit of the subject our conclusion is that the judgment should be affirmed, with costs.

Brown, P. J., and Cullen, J., concurred.

Judgment affirmed, with costs.


author: Brown, P. J.:

text:
    William W. Rider, Respondent, v. The City of Mount Vernon and Another, Appellants.

      Mount Vernon — personal injuries from obstructions in a street — presentation of a claim therefor — liability of the creator of the obstruction — legislative control over municipal liability — reversal by the General Term of a judgment as to one of two defendants.

    It is essential to the maintenance of an action, brought against the city of Mount Yernon to recover damages for personal injuries sustained by the plaintiff by reason of an alleged obstruction in a street of that city, to prove that the provision of the charter of such city to the effect that all claims against the city for such injuries should be presented to its common council within a specified time, and that the failure to do so should be a bar to any claim or action thereon, has been complied with; the failure to serve a claim for such injuries upon the common council of such city within the specified time is fatal to the plaintiff’s right of recovery against it.
    There is no provision of the Constitution of the State of New York which requires that laws shall be uniform in their operation throughout the State; the whole matter of municipal liability is subject to legislative control.
    The Legislature may prohibit all actions against municipalities to recover damages for personal injuries sustained by reason of obstructions in the streets of a municipality, and it may impose such conditions precedent to the maintenance of such actions as it sees fit, and may prescribe one limitation for certain cities and another period for others.
    The failure to serve such claim for injuries is not, however, available as a defense to a defendant who created the obstruction.
    The General Term of the Supreme Court has the power in a proper case to sustain a judgment as to one of two defendants against whom it was recovered, and reverse it as to the other defendant.
    Appeal by tlie defendants, The City of Mount Vernon and another, from a judgment of tlie Supreme Court in favor of the plaintiff, entered in the office of the clerk of. the county of 'Westchester on the 29th day of December, 1894, upon the verdict of a jury rendered after a trial at the "Westchester Circuit; also an appeal by the defendant The City of Mount Vernon from an order entered in said clerk’s office on the 27th day of December, 1894, denying its motion for a new trial made upon the minutes; also an appeal by the defendant John JBorgwald from an order entered in said clerk’s office on the 20th day of December, 1894, denying his motion for a new trial made upon tlie minutes.

      David Swits, for the appellant the City of Mount Vernon.

      Isaac N. Mills, for the appellant Borgwald.

      William M. Safford, for the respondent.
   Brown, P. J.:

The plaintiff was injured by the upsettting of his wagon while driving on one of the public streets of the city of Mount Vernon on the night of August 6, 1893.

The accident was caused by driving upon a heap of sand which had been deposited in the street by the defendant Borgwald, who, as a contractor, was erecting a building upon land adjoining the street.

The testimony was ample to establish the negligence of the defendants and the freedom from negligence of the plaintiff.

The charter of the city (Chap. 182, Laws of 1892, § 164) provides as follows: All claims against the city for injuries to the person or property claimed to have been caused or sustained by defects, want of repair or obstructions from snow or ice or other causes in the highways, streets, sidewalks or crosswalks of the city, shall be presented to the common'council in writing within three months after the said injury is received. Such writing shall describe the time, place, cause and extent of the injury so far as then practicable, verified by the oath of the claimant, if practicable or otherwise; if not, the omission to present said claim as aforesaid within three months shall he a bar to any claim or action therefor against the city, and no action shall be commenced against said city on such claim until after two months from the presentation of said claim.”

The plaintiff’s injury was received on August 6, 1893, but the claim against the city was not presented to the common council until November twénty-first. It bore date and was acknowledged on November thirteenth and was delivered to the city clerk on November fifteenth.

The counsel for the city seasonably moved to dismiss the complaint on the ground that the claim was not presented within three months after the injury was received, which motion was denied, to which ruling exception was duly taken.

It was essential to the maintenance of the action against the city to prove that the provision of the charter which I have quoted had been complied with, and the failure to serve the claim upon the common council within three months after the injury was received was fatal to the plaintiff’s case. (Olmstead v. Town of Pound Ridge, 71 Hun, 25; Curry v. City of Buffalo, 135 N. Y. 366.)

The contention of the respondent, that a statute of limitation must be uniform throughout the State and can only be established by a general act of the Legislature, has no support in the Constitution or the decisions of the courts.

There is no provision of our State Constitution which requires that laws shall be uniform in their operation throughout the State, and the whole matter of municipal liability is subject to legislative control. The Legislature may prohibit all actions of this character against municipalities, and it may impose such conditions precedent to the maintenance of such actions as it sees fit. And it may prescribe one limitation for one city and another period for others. (Curry v. City of Buffalo, supra.)

It was error, therefore, to deny the motion to dismiss the complaint against the city, and the exception to that ruling must be sustained.

Tire failure to serve the claim for injuries upon the common council of the city is not, however, available as a defense to the defendant Borgwald. The liability of this defendant was not alone a joint liability, but* a several one. All who caused the injury were liable, and could be sued separately or all could be joined in one suit. The jury could have found a verdict against one defendant and acquitted the other, and the court could have dismissed the action against the city and retained it against Borgwald. . In fact, as originally brought, the action was also against the owner of the property upon which the building was being erected, and was dismissed as against him upon the trial, but that fact did not affect the right of the plaintiff to proceed with the action against the other defendants. This court has the same power as the trial court, and we may sustain the judgment as to one defendant and reverse it as to the other.

We have examined the exceptions taken by the defendant Borgwald, but find none that affect the validity of the judgment against him.

The judgment against the city of Mount Vernon and the order denying the motion for a new trial as to such defendant must be reversed and the complaint dismissed, with costs.

The judgment and order against the defendant Borgwald must be affirmed, with costs.

Cullen and Dykman, JJ., concurred.

Judgment against the city of Mount Vernon and the order denying such defendant’s motion for a new trial is reversed, and the complaint dismissed, with costs. The judgment and order against the defendant Borgwald is affirmed, with costs.


text:
    Eliza Beck and Another, Respondents, v. The Brooklyn Elevated Railroad Company and Another, Appellants.

      Damages — caused by the operation of an elevated railroad — evidence of value, necessary to justify a recovery.

    In an action brought to recover fee damages to real estate alleged to have been caused by the construction and operation of an elevated railway, where no diminution of the value of the land in question is shown, in order to establish a right to recover it is necessary for the plaintiff to show that there has been some general advance in the value of property in the vicinity upon side or parallel streets not attributable to the elevated road, of which he has been deprived by the presence of the elevated railway structure in front of his property.
    Appeal by the defendants, The Brooklyn Elevated Railroad Company and'another, from a judgment of the Supreme Court in favor of the plaintiffs, made on the 7th day of December, 1894, and entered in the office of the clerk of the county of Kings upon the decision of the court rendered after a trial at the Kings County Special Term enjoining and restraining the defendants, their agents, successors or assigns, from maintaining or in any way using the elevated railroad in front of and adjoining the plaintiff’s premises, and also from the decision upon which said judgment was rendered.

      William H. Page, Jr., for the appellants.

      Stephen M. Hoye and Francis Russell Whitney, for the respondents.
   Brown, P. J.:

This is one of the usual actions in equity to recover damages for injuries to the easements pertaining to the plaintiffs’ property caused by the erection, operation and maintenance of an elevated railroad in front thereof, and to restrain the defendants from further maintaining and operating said railroad in the street adjacent to plaintiffs’ property.

IJpon the trial no damages were awarded for loss of rental, but the sum of $250 was awarded for damages to the fee.

We are of the opinion that the testimony does not sustain the finding of the court, and the judgment must be reversed.

The plaintiffs purchased the property in January, 1888, for $1,500. At that time the railroad structure had not been erected in front of the property, but it was in process of erection, and the stone for the foundation for the pier was lying in the street. Upon the property was a frame building, to which an addition was erected by the plaintiffs, and since the purchase the upper part of the building has been occupied by the plaintiffs as a residence, and the other part as a manufactory for dolls and baby carriages.

The plaintiff George Beck testified that subsequent to the purchase of the property he was offered for it $1,000. Of the two witnesses called by the plaintiffs upon the question of value, one testified that the present market value of the property was $5,000, and the other that the present value of the lot without the building was $5,000. No diminution of valuation was, therefore, shown, and to establish a right to recover it was necessary for the plaintiffs to show that there had been some general advance in the value of property in the vicinity upon side or parallel streets, not attributable to the defendants’ road, of which they had been deprived by the presence of the elevated structure in front of their property. No proof'of that character was offered. Indeed, it appears clearly from the testimony of the plaintiffs’ experts that there has been no general advance in value in the surrounding streets. The value of property in the vicinity has either remained stationary or retrograded, but this has been due to causes for which the defendants are in no way responsible.

The desire of people to live further out along the railroads, where newer buildings afford them better accommodations ’for less money, and. the erection of large stores in other parts of the city, which have drawn to themselves business that was formerly done in smaller stores in the vicinity of plaintiffs’ property, have changed the character of the neighborhood and lessened the value of rents for store or residential property.

The general opinion of the witnesses appears to be that the buildings on the plaintiffs’ property are .worthless in any estimate of the market value thereof, and we have the fact, therefore, clearly established that their land is worth more at the present time than when they purchased it.

The judgment must be reversed and a new trial granted, costs to abide the event.

Cullen and Dykman, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event.


author: Brown, P. J. :

text:
    John H. Cheever, Respondent, v. John F. Schall, Appellant.

      Statute of Frauds — defense of, must he pleaded — requisites of the memoranda required, — general letter of credit — acceptance thereof.

      A note or memorandum, sufficient to take a contract out of the operation of the Statute of Frauds, must state the whole contract with reasonable certainty so that the names of the parties thereto and the substance thereof may be made to appear from the writing itself without recourse to parol evidence.
    As soon as any person accepts the proposition tendered in a general letter of credit and complies with the request of the letter, the contract is at once completed between himself and the letter writer. A direct privity arises at once between the acceptor and the letter writer, and the contract becomes the same in effect as if the letter had been especially directed to the acceptor.
    A defense founded upon the Statute of Frauds must be pleaded, and, in the absence of such plea, the party failing to set forth the same will be deemed to have waived the benefit of the statute where the defect in the adverse party’s cause of action (if any) appears on the face of his pleading.
    Appeal by tlie defendant, John F. Schall, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 2d day of December, 1893, upon the verdict of a jury rendered by direction of the court after a trial at the Westchester Circuit, and also from an order entered in said clerk’s office on the 7th day of April, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      George C. Andrews, for the appellant.

      Abram J. Miller, for the respondent.
   Brown, P. J. :

On April 1, 1886, the plaintiff leased to George Gablemann a farm in the town of Greenburgh, "Westchester county, for the term of five years at an annual rental of §250, payable half yearly.

This action was brought against the defendant to recover a balance of unpaid rent for said farm, upon an instrument of which the following is a copy:

“Tarrytown, December 5th, 1885.
“ Dear Sir.— Let Mr. George Gablemann have your farm at Saw Mill River Talley for the term of five years and I will see you paid.
“ Yours,
“JOHN F. SCHALL.”

The farm leased by the plaintiff to Gablemann was situated in the Saw Mill River Talley, and it appeared from un contradicted testimony that negotiations for the leasing of the farm commenced between the plaintiff’s agent and Gablemann in the fall of 1885-; that security for the payment of the rent was required by the plaintiff, and that at the time of the execution and delivery of the lease the instrument in suit was delivered to the plaintiff.

At the close of the evidence the court directed a verdict for the plaintiff, and from the judgment entered thereon the defendant has brought this appeal.

The defendant asks us to reverse the judgment on two grounds : First, that the guaranty is void for the reason that it does not disclose upon its face in whose favor or to whom it was made; and, second, that the lease contains special covenants not contemplated by the guaranty.

A note or memorandum sufficient to take a contract out of the operation of the Statute of Frauds must state the whole contract with reasonable certainty, so that the names of the parties thereto and tbe substance thereof may be made to appear from the writing itself without recourse to parol evidence. (Mentz v. Newwitter, 122 N. Y. 491 and cases cited.)

That case arose upon a contract to sell land, but the rule there applied is equally applicable to all contracts, which, by the Statute of Frauds, are required to be in writing. • I am of the opinion, however, that the rule applied in that case is not applicable to the case under consideration.

The instrument sued upon is a general letter of credit, and the rule applicable to that class of instruments is that as soon as any person accepts the proposition tendered and complies with the request of the letter, a contract is at once completed between himself and the letter writer.

A direct privity arises at once between the acceptor and letter writer and the contract becomes the same in effect as if the letter had been specially directed to the acceptor. (Watson’s Executors v. McLaren, 19 Wend. 565 ; 26 id. 425; Birckhead v. Brown, 5 Hill, 642; Union Bank v. Coster’s Executors, 3 N. Y. 203 ; Benedict v. Sherill, Hill & Den. 219; 2 Daniel on Neg. Inst. [4th ed.] § 1797a.)

We are, moreover, of the opinion that the question of the validity of the instrument sued upon is not before us on this appeal. A defense founded upon the Statute of Frauds must be pleaded, and, in the absence of such a plea, the defendant will be deemed to have waived the benefit of the statute. (Crane v. Powell, 139 N. Y. 379.)

The complaint in this action set forth the instrument sued upon, and the defect in the plaintiff’s cause of action (if any existed) ajDpeared on the face of that, pleading. The defendant neither denied the contract nor did he plead the Statute of Frauds as a defense in his answer. Under such circumstances, it was held by the Court of Appeals in the case cited that a defendant waived the benefit of the statute.

None of the conditions of the lease can be deemed to be beyond the contemplation of the guarantor. lie intended to guarantee the payment of the rent of a farm for five years, and contemplated a lease of a farm upon such terms and conditions as were usual to that class of property. The covenants as to the payment of the rent and the reservation by the lessor of a right to re-enter upon the farm and repossess himself thereof in case of its non-payment, together with the covenants on the part of the tenant to keep open the ditches and cultivate the farm according to the usual course of husbandry as practiced in the neighborhood, were all the usual and ordinary conditions of farm leases, and must be presumed, in the absence of evidence to the contrary, to have been within the contemplation of the defendant when he signed the instrument in suit.

It does not appear that the plaintiff ever notified the defendant of the acceptance of the guaranty or that he had leased his farm to Gablemann on the credit of defendant’s letter. In the absence of any proof of that character the defendant’s liability for the rent might be questionable. But no point of this kind was made upou the trial, and the question is not before us for review.

The judgment must be affirmed, with costs.

Cullen, J., concurred; Dykman, J., not sitting.

Judgment affirmed, with costs.


author: Brown, P. J.: Cullen, J.: Dykman, J.:

text:
    Maria O. Simms, as Executrix, etc., of Henry C. Simms, Deceased, Appellant, v. The City of Brooklyn, Respondent.

      Chapter 559 o/1871— award for lands taken thereunder — when it does not pass by a deed.

    Subsequent to the passage of chapter 559 of the Laws of 1871 the owner of a lot of land abutting on the street affected by such act conveyed the lot to another for the expressed consideration of one dollar. Such conveyance described the original lot, including the front taken by the city for widening the street, and was made “ subject to the rights of the city of Brooklyn in and to so much of the front of the premises above described on North Second street as was taken or attempted to bo taken for the widening thereof ” by such act. It contained the usual covenant of seizin. »

      Held, that the award made for the taking of the front of such lot for the widening of such street, which was a mere right of action not running with the land, did not pass under such conveyance.
    Appeal by the plaintiff, Maria O. Simms, as executrix, etc., of Henry O. Simms, deceased, from a judgment of the Supreme Oourt in favor of the defendant, entered in the office of the clerk of the county of Kings on the 25th day of October, 1894, upon the decision of the court rendered at the Kings County Special Term dismissing the plaintiff’s complaint upon the merits.

      John T. Barnard, for the appellant.

      Albert G. McDonald and Richard D. Greenwood, Jr., for the respondent.
   Brown, P. J.:

This action was brought to recover the amount of an award made by commissioners for land taken for the widening of North Second street in the city of Brooklyn, pursuant to chapter 559 of the Laws of 1871. No question arises as to the liability of the city for the amount of the award, and the only contention is as to the person entitled to receive it. The title to the land taken for the improvement vested in the city by force of the act referred to, but, as I understand the evidence, the improvement had not been made when the deeds hereinafter referred to were executed, but the street and the adjoining lots remained as they were before the law was passed. Henry O. Simms was the owner of a lot of land fronting on North Second street when the act referred to was passed and when the report of the commissioners was made, and was in his lifetime entitled to receive the award. He died in the year 1883, leaving a will whereby he gave all his property, real and personal, to the plaintiff, who was his wife, and apjsointed her and Jais two sons his executors. On April 26, 1886, the plaintiff conveyed the lot of land devised to her by said will to Harry E. Stam. The consideration expressed was one dollar, and the description was that of the original lot including the front taken by the city for widening the street. The conveyance was expressed to be subject to the rights of the city of Brooklyn in and to so much of the front of the premises above described on North Second street as was taken or attempted to be taken for the widening thereof by an act passed April 19, 1871,” etc. And it contained the usual covenant of seizin.

Subsequently Stam conveyed the same premises to Matthew Charde, and he conveyed them to Emily J. Charde and others. The last-named parties sued the defendant for the award in the City Court of Brooklyn and recovered a judgment therefor, which has been affirmed by tlie General Term of that court. (8 Misc. Rep. 598.)

The question presented in this action is whether the award passed to Stam by the conveyance of the plaintiff above referred to. The facts differ from those in the cases of Magee v. City of Brooklyn and Delap v. Same (144 N. Y. 265), upon which the decision of the City Court rests.

In Magee's case the decision was placed upon the ground that the land was conveyed precisely as if the title was not affected by the passage of the act. That the award in equity represented the portion of the land taken, and having conveyed the land with full covenants, the grantors were held to have transferred the award to their grantees.

In Delap's case title was acquired under the foreclosure of a ' mortgage which was upon the land at the time of the passage of the act, and in which judgment was entered and sale had before the award was made, and it was held that the purchaser at the foreclosure sale was entitled to the award. In respect to the reservation contained in the deed from the plaintiff to Stam, this case also differs from Englehardt v. The City of Brooklyn and Schafer v. The City of Brooklyn (44 N. Y. St. Repr. 474), also decided in the City Court of Brooklyn.

This case is one that must be decided upon its equities, and the deed to Stam must be construed according to tlie intent and design of the parties, manifested by the language used and the surrounding circumstances.

I am unable, however, to find anything in the conveyance or in tlie facts before us indicating an intent to assign the award.

No particular importance is attached to the fact that tlie plaintiff was the executrix of her husband, and held title to the award in her representative capacity and title to the land in her individual character. She took under her husband’s will the whole beneficial interest in the estate, and if there was any fact or circumstance to indicate that she assumed to convey to Stam the whole lot of land, including that taken by the city, the case would fall within the rule applied in Magee's ease, and the judgment would have to be affirmed. But the parties recognized tlie rights of tlie city, and the nominal consideration expressed in the deed indicates, not a sale for the value of the full lot, but a gift of such title as the plaintiff possessed. Undoubtedly she intended to convey all the land to which she had title, and if the city had no rights she intended her grantee to take the whole lot; but it is equally apparent that both parties recognized a possible title in the city to the front of the lot, and if that proved to be the fact then the grantee was to take under the deed, title only to the balance of the land, and I can find no fact indicating that in the latter case the grantee was to take the award in place of the front of the lot, nor any indication that the plaintiff intended to assign it. Indeed, if we assume that this transfer was for a nominal consideration, which we must do from the expressed consideration of the deed; in other words, that it was substantially a gift to Stam, then there is nothing in the case to indicate that the plaintiff intended to assign the award. That was not in terms embraced in the conveyance. It was a mere right of action not running with the land, and was held by the plaintiff as executrix of her husband, and it was incumbent on the defendant, in order to defeat her right to recover the award, to produce some competent evidence that she had assigned it.

It is unfortunate that the several claimants to this award had not all been made parties to one suit so that the defendant might not be subjected to a doxrble liability, but as the plaintiff is not in any way bound by the decision in the Cha/rde case she is entitled to have the question decided upon its merits.

I think the judgment should be reversed and a new trial granted, with costs to abide the event.

Cullen, J.:

I concur in the opinion delivered by Justice Brown. As the result of this opinion is a decision opposed to that made by the City Court of Brooklyn in Charde v. City of Brooklyn (8 Misc. Rep. 598), I have examined the record in that case. There it was conceded and found that many years after the making, filing and confirmation of said report of said commissioners without anything further being done towards the completion of the widening of North Second street, and it was not known whether said defendant would finish said work, or whether the making of said improvement would be abandoned entirely.” It was further found that there was on the lot a three-story brick house in existence from 1855 till the present, fourteen feet of which are taken by the widening. These facts do not appear in the record before us. If such were the facts, and especially if it should be made to appear that there was a substantial consideration paid plaintiff for the conveyance, I think there would be little difficulty in holding that she had transferred by the conveyance her right to the award.

Dykman, J.:

This suit was instituted for the recovery of an award for land appropriated under the right of eminent domain for the widening of public streets in the city of Brooklyn.

The property for which the award was made was owned by Henry C. Simms, and he was entitled to the money. He died in 1883, leaving a last will and testament, by which he gave all his property to the plaintiff, and appointed her and his sons the executors thereof.

In the year 1886 the plaintiff executed and delivered to Harry E. Stam a deed of conveyance for the lot, including the front which had been taken for widening the street.

The consideration named in the deed was one dollar, and it was made “ subject to the rights of the city of Brooklyn in and to so much of the front of the premises above described on North Second street as was taken or attempted to be taken' for the widening thereof by an act passed April 19, 1871.” The question involved in this appeal is whether the award passed to Stam, the grantee of. the plaintiff.

As we have already seen, the boundaries specified in the deed from the plaintiff to Stam included the property taken by the city, but the exception from the operation of the deed of the rights of the city in front of the property indicates a recognition of those rights by the grantee. The exception also indicates an intention to convey only the land to which the plaintiff had the title.

The deed is entirely destitute of language indicative of any intention to assign or convey the right of the plaintiff to the award in question, and it would not pass under the general language of the conveyance. The right to the award passed to the plaintiff under the will of her husband.

The case of King v. The Mayor (102 N. Y. 171) was similar to this, and it was there held that where, under a statute closing a highway, damages were directed to be awarded and paid to the owners of premises required by the closing, the right to damages was personal, and belonged to an owner at the time of the closing, although before, the award he had conveyed his title.

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

Judgment reversed and new trial granted, costs to abide event.


author: Cullen, J.: Brown, P. J.

text:
    George Reid, Appellant, v. Wilson L. Defendorf, Respondent.

      Judgment of a justice of the peace —perfected entry thereof— when the time to a/ppeal therefrom commenees to run.

    Tlie mere writing of a judgment by a justice of the peace in his docket book does not constitute a perfected entry of judgment. It may be doubted whether there exists a legal judgment until the docket book is open to the public.
    The time to appeal from a judgment entered in his dotf'T book by a justice of the peace does not commence to run until the docket book is open to the public. Brown, P. J., dissenting.
    Appeal by the plaintiff, George Reid, from an order of the Rock-land County Court, entered in the office of the clerk of the county of Rockland on the 14th day of May, 1894, determining that the notice of appeal and undertaking served upon the attorneys for the plaintiff, and the notice and consent to allow judgment served no the said attorneys for the plaintiff on behalf of the defendant, were served in time.

      Lexow & Wyre, for the appellant.

      Richard S. Harvey, for the respondent.
   Cullen, J.:

This is an appeal from an order made by the County Court of Rockland county, declaring the service of defendant’s notice of appeal from a judgment rendered by a justice of the peace valid and made in time. The cause was tried before the justice on February first, and it was stipulated that the parties should have till February seventh to file briefs and the justice four days thereafter to decide the cause. The justice, finding himself in poor health, decided the case on February sixth before the receipt of the briefs of the parties, entered the judgment in his docket and placed the docket book in his safe. He then left the State on a visit and directed his nephew, in whose charge he left his affairs, to show his 'books to persons making inquiries. No notice was given to the defendant of the decision of the cause. He called several times at the justice’s office but found it closed, the nephew only attending the office at times. The justice returned on February twenty-eighth. The defendant learned of the judgment against him on March first, and on the seventeenth of that month served his notice of appeal and filed his bond. The plaintiff’s attorneys returned the notice of appeal as served too late. Thereupon the defendant applied for the order appealed from.

The Code of Civil Procedure allows twenty days after the entry of a judgment in the justice’s docket within which a party may take an appeal (§ 3016). Concededly more than that time elapsed from the entry of the judgment by the justice till the defendant took .the first step toward an appeal. If the writing by the justice in his book constituted a perfected entry of judgment then the defendant has lost his right to appeal. But we think the law is otherwise. It is not necessary for the successful party in a Justice’s Court to give any notice to his adversary to limit the time to appeal. The parties must examine the justice’s record and discover for themselves the decision of the court. But, of course, for this purpose it is necessary that the justice’s docket should be accessible and open for inspection, and the Code has enacted express directions in this regard. By section 3144 of the Code of Civil Procedure, when removing from a town, a justice must deliver his docket book to the clerk of the town. By section 3141 of the Code of Civil Procedure a justice’s docket must be kept open by him during the hours the sheriff’s office is required by law to be open, for search and examination. When the law provides that a judgment be entered in a docket book it means a docket book to be kept open as prescribed by law. Both sections of the Code must be read together. As long as the docket book was inaccessible to the party the judgment or decision might as well have only existed in the judge’s mind. It may be doubted whether there was a legal judgment in this case until the docket book was opened to the public, but in no view should the time to appeal commence to run until that time.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Dykman, J., concurred.

Brown, P. J.

(dissenting):

The right to appeal from a- judgment is created solely by statute, and where a period of time in which an appeal may be taken has been fixed by.the Legislature the court has no power to extend the time. (Wait v. Van Allen, 22 N. Y. 319 ; Salles v. Butler, 27 id. 639 ; Thomas v. Thomas, 18 Hun, 182.)

An appeal from a judgment rendered by a justice of the peace must be taken within twenty days after the entry of the judgment in the justice’s docket, and it is conceded that the appeal in this case was not taken within that period.

The judgment rendered against the defendant is either valid or invalid.. If it is void there is nothing to appeal from and the motion should have been denied. If it is valid it became so immediately upon being rendered by the justice, and nothing that happened thereafter, could enlarge the time to appeal therefrom. That it is a valid judgment there can be no question. The justice had jurisdiction of the parties and of the subject-matter. There was a trial, and there was power to enter the judgment. A judgment is rendered by a justice of the peace by entering it in his docket. (Code Civ. Proc. §-3015.) That was done in this case. That in so doing the justice violated a stipulation of the parties in reference to submitting their briefs is of no importance. That act, if true, was an irregularity only, and did not affect the power of the justice. The judgment, therefore, became valid and effectual when the justice entered it in his docket, and could be enforced by execution. The fact that the justice immediately left the State without delivering his docket to the town clerk and leaving it open for inspection, had no effect upon' his previous acts. Neither did it enlarge the defendant’s rights in reference to it. It was undoubtedly a violation of official duty, but a thing of no importance in determining the question before us. The case then comes to this; A valid judgment has been rendered against the defendant, and he has by the. act of the justice and through no fault of his own been deprived of the right to appeal therefrom. The court has no power to restore to him the right thus lost. The cases cited have settled that ques: tion, and the motion should have been denied. But he is not without a remedy. The facts set out in the motion papers, and which are not denied by the plaintiff, make a plain case for equitable relief. If the judgment had been recovered in a court of record the wrong suffered by the defendant could be remedied on a motion for a new trial. But a Justice’s Court has no power to entertain such a motion. Since courts of law have possessed- the power to grant new trials, courts of equity have rarely interfered to restrain the collection of judgments rendered therein, but the power to do so is one of the well-recognized heads of equity jurisdiction. (Dobson v. Pearce, 12 N. Y. 165 ; United States v. Throckmorton, 98 U. S. 61.)

The facts show that a species of fraud has been practiced upon the defendant. The justice should not have entered the judgment until after the date fixed for the submission of the briefs, and the plaintiff is not morally entitled to enforce a judgment in which the defendant was deprived of his right to argue the case. These facts' create a plain case for equitable cognizance. The order appealed from is in violation of the statutes and decisions of this State.

The opinion of my associate establishes a bad precedent, and hence I dissent.

Order affirmed, with ten dollars costs and disbursements.


text:
    Mary A. Pidgeon, as Administratrix, etc., of Patrick J. Pidgeon, Deceased, Respondent, v. The Long Island Railroad Company, Appellant.

      Master’s duty to famish a safe place for his servant — defective roadbed and track of a railroad caasiny the death of the servant.

    The rule of law that a master is obliged to use proper care and employ suitable skill to furnish a safe place for the performance of the duties pf his servants extends to the obligation of a railroad company to maintain its roadbed and track in a safe condition for use by its employees.

      The verdict of a jury in favor of the plaintiff, in an action brought, to recover damages resulting from the death of the plaintiff’s intestate, by reason of the alleged negligence of the defendant, a railroad company, in failing to keep its roadbed in proper condition, is a finding that the defendant has failed to discharge its obligation, to the deceased, to furnish him with a safe place for the performance of his duties.
    Appeal by the defendant, The Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 8th day of May, 1894, upon the verdict of a jury rendered after a trial at the Queens County Circuit, and also from an order made on the 1st day of May, 1894, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

      W. C. Beecher, for the appellant.

      Frederic A. Ward, for the resjiondent.
   Dykman, J. :

This is an appeal by the defendant from a judgment entered upon a verdict in favor of the plaintiff for $5,000, and from an order denying a motion for a new trial upon the minutes of the court.

The action is for the recovery of damages resulting from the death of the plaintiff’s intestate which was caused by the negligence of the defendant.

The plaintiff’s intestate was in the employ of the defendant, and on the 19th day of March, 1893, he was in charge of a train of freight cars which was passing down the trank of the defendant’s railroad from the North Shore freight yard at Long Island City. The tracks cross Borden avenue near the defendant’s yard, and at the point of crossing the tracks of the Long Island City and New-town trolley road intersect the tracks of the defendant at right angles.

• The train in charge of the deceased was backing slowly down, and he was standing on the top of a car directing the movements of the train.

Before the train' reached Borden avenue it was switched over from the right-hand track to the left-hand track, and when it was passing over Borden avenue the end car upon which the deceased was standing ran off the track and collided with the signal tower, which fell upon the deceased and caused his death.

There was evidence tending to show that the track at the avenue crossing was out of order, and had been so for some time. It was described by the witnesses as a Soft, spongy place where the tracks settled as the frost came out of the ground. The track would sink down when the ground was wet. One witness said the rail would sometimes work up and down two or three inches.

It was the theory of the plaintiff that such condition of the track caused the car to leave the rail, and the neglect to repair the track and maintain it in a safe condition was the negligence charged against the defendant and upon which the action was based.

The case was fairly submitted to the jury by the trial judge, and we must now assume that the jury gave credit to the testimony introduced by the plaintiff and adopted her theory in relation to the cause of the accident.

The recitation we have made of the facts is sufficient to show that the verdict is amply supported by the evidence and the circum-stances surrounding the accident.

Such being the situation, the judgment is justified by the law applicable to the case.

The obligation of the master to use proper care and employ suitable skill to furnish a safe and suitable place for the performance of the duties of the servant has been asserted in so many cases and in such a variety of language that a repetition of the rule or a citation of authorities for its support is entirely unnecessary.

The verdict of the jury in favor of the plaintiff is a finding that the defendant has failed to discharge its obligation to the deceased to furnish him a safe place for the performance of his duties.

The rule of law extends to the obligation of a railroad company to maintain its roadbed and track in a safe condition for use by its employees. (Hawley v. Northern Central Railroad Company, 82 N. Y. 370.)

"We have not overlooked the contention of the defendant’s counsel upon this appeal, that the deceased was guilty of contributory negligence by reason of his knowledge of the condition of the railroad track at the place of the catastrophe. But if we assume all that was said upon the subject it fails to show knowledge in the deceased of tlie extent of tlie disorder of tlie track or of tlie imminence of tbe danger therefrom.

Moreover, the subject was fully discussed in the charge to tlie jury, and the question of. such contributory negligence was fairly submitted to the jury.

"We detect no error in the record, and the judgment and order should be affirmed, with costs.

Brown, P. J., and Cullen, J., concurred.

Judgment and order affirmed, with costs.