text:
    The People of the State of New York ex rel. Oscar C. Wood, Appellant, v. The Board of Commissioners of Excise of the Town of Randolph, Respondent.

      Local option —local prohibition — •election of no-license excise commissioners — duty as to refusing licenses —section 41 of the Excise Lam of 1892 (Gha/p. 401).
    The provision of section 41 of the Excise Law of 1892 (Chap. 401), that “nothing herein, except § 31, shall in any manner apply to any town where the majority of voters have voted for or hereafter vote for local prohibition until such town shall reverse by vote such local prohibition,” apparently recognizes the right of each town to establish local prohibition by the vote of its electors without any special provision of law prescribing the mode of taking such vote.
    Under the system of local option and local prohibition existing at the time of the enactment of the above provision, and apparently recognized and sanctioned thereby, it is the .right of the electors of a town, under the act of 1892, at the annual election of town excise commissioners, to exercise their choice in the election of no-license commissioners, and when that has been done, the commissioners so elected are both legally and morally bound to refuse all licenses to sell liquor in their town.
    If, however, the Legislature has not so far recognized and sanctioned the existing system- of local option as to give to the vote of a town the force of law and make it absolutely binding upon commissioners elected as no-license commissioners, still commissioners so elected are justified in giving to such vote a controlling effect in the exercise of their discretion whether to grant or refuse licenses in their town.

      Appeal by the relator, Oscar 0. Wood, from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of Cattaraugus county on the 4th day of September, 1893, dismissing his proceedings by writ of certiorari to review the action of the board of commissioners of excise of the town of Randolph in denying his application for a hotel license.

      William 11. Henderson, for the appellant.

      D. O. Reilly, for the respondent.
   Dwight, P. J.:

The return of the commissioners is to the effect that they were elected as no-license commissioners, and that for that reason they felt it to be their duty, both in a legal and moral sense,” to refuse to grant the license applied for. We think the order of the Special Term dismissing the proceedings was well based upon such return and should be affirmed.

Section 41 of the Excise Law of 1892 (Laws of 1892, chap. 401) is as follows: “ Local Option. Nothing herein, except § 31, shall in any manner apply to any town where the majority of voters have voted for, or hereafter vote for, local prohibition until such town shall reverse by vote such local prohibition.” Section 31, referred to, makes it a misdemeanor to 'sell intoxicating liquor without a license.

The section 41 above quoted is in all material respects a transcript of section 6 of the Excise Law of 1813 (Laws of 1813, chap. 549), with the omission of the words “ m, accordance with a/rvg law providing for such voting,” which, in the act of 1813, occurs after the words “ vote for local prohibition.” In other words, the act of 1873 recognized and gave effect to the vote of any town for local prohibition only when such vote was given in accordance with some existing law providing therefor; whereas the act of 1892, by omitting the qualification mentioned, apparently recognized the right of each town to establish local prohibition by the vote of its electors without any special provision of law prescribing the mode of taking such vote.

The recognition, if intended, was certainly in’ accordance with the practical effect which had been given to existing laws for many years. The act of 1873 was followed in 1874 by the provision for the election in each town of separate officers designated as commissioners of excise, to be voted for on a sejrarate ballot, which should be deposited in a separate box marked “ excise.” (Laws of 1874, chap. 444, §§ 1, 2.)

The court will take judicial cognizance of the fact as part of the contemporary history of the State, that ever since the last-mentioned act became a law, the people of the State have given to its provisions (in connection with that before quoted from the act of 1873) the effect of establishing a system of local option; and that, accordingly, ever since 1874, the annual election of commissioners of excise in the towns has been made the occasion of an expression, at the polls, of the sentiment of the town for or against the granting of licenses for the sale of liquor. .This has been done by each elector’s casting his vote in favor of commissioners known and understood to he, respectively, in favor of or opposed to the granting of licenses.

And thus “local option” everywhere, and “local prohibition” wherever the expressed will of the electors has demanded it, have come to he accomplished facts, in this State, known of all men.

It would seem, therefore, to be something like an impeachment either of the good faith or of the good sense of the Legislature of 1892, to suppose that, in re-enacting section 6 of the act of 1873 — especially with the significant omission of the qualification above mentioned — it did not intend to recognize the existing, actual and practical system of local option which had been in force throughout the State for nearly a score of years.

If we assume that such was the intention of the Legislature then, under the system of local 'option thus recognized and sanctioned, it was the right of the electors of the town of Randolph to exercise their choice in the election of no-license commissioners; and, having done so, the commissioners so elected were — as they have testified. they felt themselves to be — both legally and morally bound to refuse all licenses to sell liquor in their town.

This view of the meaning and effect of the provision quoted from the statute of 1892 has been maintained with much force in several cases at Special Term within the past year. (See People, ex rel. Watkins v. Commissioners of Warsaw, 54 N. Y. St. Repr. 202; People ex rel. Davis v. Truman et al., 53 id. 726.) In the latter of these cases Forbes, J., and in the former Ward, J., have so elaborated the statement of the grounds of their decision that we deem it only necessary to refer to their opinions for further argument of the questions there presented.

Put if it should be held that the Legislature has not so far recognized and sanctioned the existing system of local option as to give to the vote of the town the force of law, and make it absolutely binding upon the commissioners, yet we can have no doubt that the commissioners were justified in giving to such vote a controlling effect in the exercise of their discretion whether to grant or refuse licenses in their town (People ex rel. Kidd v. Commissioners of Montgomery, 25 N. Y. Supp. 873), and we find nothing in the return of the commissioners in this case which necessarily opposes the conclusion that they refused the application of the relator in the exercise of a just discretion based upon a proper consideration of the views and wishes of the electors of the town as demonstrated in their own election.

The order appealed from should be affirmed, with costs to the respondents.

Lewis and Hai&ht, JJ., concurred.

Order appealed from affirmed, with costs.


source: Caselaw Access Project

author: Dwight, P. J.:

license: Public Domain

text:
    Romane Depew, Respondent, v. Celina B. Ketchum and Others, Appellants.

      Lease to work on sha/réS — owner to pay damages in case of a sale — measure of the da/mages.

    When, in a contract by which a farm is let to be worked on shares for a term of years, the owner reserves the right to sell the farm at any time during the - term, and the worker agrees thereupon to surrender possession at the end of the current farm year, the owner agreeing to pay any damages which the worker may sustain by reason of the sale, the measure of the worker’s damages, in case of a sale and consequent surrender of possession before the expiration of the term, is the value of the term surrendered, based upon the capacity of the farm to yield a profit to one working it under the contract.

      Tie liability of tie owner, under a farm contract containing suci stipulations, to pay damages to the worker, in case of a sale of tie farm, is as binding as it would be in case file owner made a sale of tie farm in violation of iis contract.
    Appeal by the defendants, Celina B. Ketclmin and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Yates comity on the 16th day of .December, 1892, upon a verdict rendered at the Yates Circuit, and from an order denying the defendants’ motion for a new trial'made upon the minutes, entered in said clerk’s office on the 30th day of December, 1892.
    The action was brought to recover the damages alleged to have been sustained by the plaintiff in consequence of the sale by the defendants of a farm which was being worked by the plaintiff under a contract between defendants, owners of the farm, on the one part, and the plaintiff .on the other.

      E. Hides, for the appellants.

      G. W. Kimball, for the respondent.
   Dwight, P. J.:

The plaintiff took the farm of the defendants to work on shares for a term of five years from the 1st day of April, 1891. The contract was in writing and contained the following provision: “ The parties of the first part reserve the right to sell this farm at any time during said term, and the party of the second part agrees to surrender possession of the same on the first day of April in any year of said term, in case said sale is made, and the parties of the first part hereby agree to pay any damages that the party of the second part may sustain by reason of a sale, said damage to be determined, if the parties cannot agree, by each party selecting a man who shall assess the damages.”

Under the right thus reserved the defendants made a sale of the farm during the first year of .the term, and the plaintiff, in performance of the same provision of the contract on his part, surrendered the possession on the 1st day of April, 1892. Shortly afterwards he called upon the defendants to select a person on their part to act as appraiser of his damages, and,, upon their declining to do so, he brought this action.

The action was for the value of that portion of the term which was surrendered by the plaintiff; and this, we have no doubt, he was entitled to recover under the terms of his contract. The defendants’ right to sell the farm during the term is reserved on the condition that they pay the plaintiff his damages caused by such sale; and the plaintiff’s agreement to surrender the possession is bn the condition that he be paid such damages. The defendants’ obligation, under the contract, to pay damages, is as binding as if it arose from a violation of the contract on their part.

The only question in the case is, therefore, what are the damages, to be paid, how ascertained and how measured. The contract says : “ Any damages that the party of the second part may sustain by reason of a sale.” That means any damages directly or proximately consequent upon, or resulting from a sale. And that the loss of his term, of the rights and privileges which lie would otherwise have enjoyed during the term, is to be, mainly, the basis of such damages,. cannot well be doubted. And what are those rights and privileges ? Clearly, among others, the right and privilege to work the farm for four years more, and to make out of it all the gain and profit which it was capable of affording. The measure of the plaintiff’s damages, then, is the value of the term surrendered, and the value of the term depends upon the capacity of the farm to yield a profit to the man who works it under the contract which the plaintiff held in this case.

Granting, what we have assumed, that the liability of the defendants is the same under a contract by which they stipulated to pay damages in case of a sale, as it would have' been had they made a sale in violation of the contract, then the case of Taylor v. Bradley (39 N. Y. 129) is authority for the plaintiff’s contention upon nearly every question arising in this case. And its doctrine is, in great measure, reaffirmed in the case of Wakeman v. Wheeler & W. S. M. Co. (101 N. Y. 205). Both of these were cases of damages resulting to the plaintiff from a breach of the contract. In the former of them the contract was of the same character as in this case, viz., the letting of a farm to work on shares, and the court held, in an elaborate opinion by "Woodham. J., that the plaintiff was entitled to recover as damages the value of his contract, i. e., what such a privilege of occupying and working the farm was worth, subject to the conditions of the agreement, and under all the contingencies which were liable to affect the result. “ Ilis damages are what he lost by being deprived of his chance of profit.” .Also, that such damages might be recovered immediately upon the refusal of the defendant to perform the agreement; and in the case of Wakeman v. The Wheeler & W. Sewing Machine Company the same rule was applied to the estimate of damages for the breach of a contract to give the plaintiff the exclusive privilege to sell machines in certain territory, and to furnish him the machines for such sales as he should make therein. Both of these cases are very instructive in respect to the limitations to be put upon the rule that speculative and uncertain damages cannot be recovered; and, at least in the latter of them, the admission of evidence was approved which showed something of the extent and profit of the plaintiff’s business so far as he was enabled to prosecute it, as tending to show what it might have been in case of full performance of the contract on the part of the defendant, and that the case was not one for expert or opinion evidence as to what machines might have been sold and what profits made. The rule of the latter case as to the allowance of prospective profits and the mode of estimating them, was adopted in Dart v. Laimbeer (107 N. Y. 664).

This case was, we think, submitted to the jury in a charge very carefully in accord with the principles established by the cases above cited. The jury was instructed that the profits of the year dating which the plaintiff had the benefit of his contract were not to be taken as the measure of the profits which might have been realized in the four succeeding years, but as facts which might aid the jury-in estimating the value of the contract one year, with another; and it would seem that under the careful instructions pf the court the jury did not go very far astray into the region of speculation and conjecture. Their verdict was for $1,500, which fixes the value of the plaintiff’s contract at $375 a year, not an extravagant profit to be realized over and above the expenditure of labor and care, enterprise and responsibility involved in the management of a farm of 234 acres of fertile and highly improved laud.

We find no error in the case which should vitiate this verdict.

The judgment and order appealed from should be affirmed.

Lewis and Haight, JJ., concurred.

Judgment and order appealed from affirmed.


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    Frederick W. Smith, as Receiver of The Flour City Life Association Plaintiff, v. George G. Bown, Defendant.

      Go-operative assessment insurance — contract liability of a member to pay assessments.

    When the contract between a co-operative assessment insurance company, organized under chapter 175 of the Laws of 1888, and a member thereof, as evidenced by the by-laws and certificate of membership, creates an obligation on the part of the member to pay, at regular fixed periods, a stated fixed sum, whether called an assessment or a due, the payment of such sum may be enforced at law on the member’s first default, although his default works a forfeiture or termination of his membership so that he is not liable to pay any further assessments.
    Submission of controversy on agreed facts, without action, under section 1279 of the Code of Civil Procedure.

      William De Groff, for the plaintiff.

      P. M. French, for the defendant.
   Dwight, P. J.:

The controversy here submitted is between the receiver of a dissolved co-operative assessment insurance company, organized under chapter 175 of the Laws of 1883, and one of its members, and presents the question whether, by becoming such member, the defendant contracted a liability to pay dues and assessments which can be enforced at law, or whether, on the other hand, Ms liability was limited to a forfeiture of his membership on his neglect or refusal to pay. The question, of course, is one of contract, and the inquiry is, what was the contract between the parties ?

The only reported case in this State in which the question of liability to pay was directly adjudicated was that of McDonald v. Ross-Lewin (29 Hun, 90), which was a case in our own department in 1883. In this case the court found a contract to pay and held the member liable to an action to recover the first of the assessments on which he made default, but held that his default at the same time worked a forfeiture or termination of his membership, and that he was not liable to pay any further assessments. The defendant’s application in that case contained the clause “ and in case a certificate is granted on the statements and good faith of the above declarations, I hereby agree to accept and pay for the same, subject to all tbe conditions of tlie by-laws and regulations of this association.”

Tlie only other case in this State in which the question of the member’s enforcible liability to pay' assessments was considered, though not involved in the action, was that of The Matter of The Globe Mutual Benefit Association (63 Hun, 263). The question there presented was whether it ivas competent for associations of this character to insure infants. It was held not competent, and by a majority of the court, in an opinion by O’BexeN, J., for the reason that there was necessity for a mutual contract between the association and the member, of which the infant ivas incapable; and the case of Ross-Lewin (supra) was cited as authority for the proposition that there is a contract on the part of the member to pay his assessments upon which an action will lie. Van Brunt, P. J., dissented from the ground of the decision above stated and expressed an opinion that the member assumed no obligation to pay, but that the extent of his liability was to forfeit his membership for non-payment. In affirming the judgment of the Supreme Court, the Court of Appeals (135 N. Y. 284) in the language of Andrews, J., said: “ AVe place our assent to the judgment below on the ground that it appears from a consideration of the statute of 1883, and the nature and object of co-operative insurance companies, cmd the relation which members hold to the corporation, that adult persons only were contemplated as entitled to be members.” It is not made clear what the court consider to he the relation which members hold to the corporation, but the decision certainly does not condemn or disapprove the views held by the majority of the court below, nor the conclusion of the court in the case of Ross-Lewin (supra). The latter case, therefore, stands, so far, unquestioned as authority, and we feel ourselves bound to follow it so far as the facts of this case bring it within the reasoning and the rule there adojhed.

The only question here is, therefore, wras there in the contract between the association and the member in this case, a promise, either expressed or reasonably-to be implied, to pay the assessment, so called, which is in question in this action. And the first remarle we feel inclined to make is that the payment in question was not in any true or proper sense an assessment at all, but a regular bi-m'onthly due, the amount and time of payment of which were fixed, at the outset, by the contract between the parties, and which was to remain constant and unchanged throughout the whole term of the defendant’s membership. It bore no resemblance to the “mortuary” assessment which was required to be levied on the occasion of the death of a member to provide means to pay his certificate. The payment in question was required only of members of “ Glass B ” which seems to have been an addendum rather imperfectly tacked onto the original scheme of the organization.

The provision for it is found in article 20 of the by-laws, and is as follows : “ § 4. Assessments will be levied on the first working-day of February, April, June, August, October and December of each year; and will fall due on or before the first of the month following, and based on the following: ” and here follows a table of “ rates,” from which it appeared that the regular bi-monthly payment required of the defendant (determined by his age and the “ number of shares ” held by him) was five dollars and sixty cents. Here, it is apparent, was no “ assessment” to be “levied ” on the bi-monthly dates above mentioned, but that, by whatever process the amount was arrived at, it was done once for all when the by-law and the accompanying table were adopted.

Looking further for evidence of a contract to pay on the part of the member, we find that section 1 of article XY of the by-laws prescribes'the form and contents of the certificate of membership and, among other things, that it “ shall contain the specified terms of the agreement or contract between the association and the member to whom it is issued,” and turning to the certificate itself, issued to the defendant, we find its first clause to be as follows: “ For and in consideration of the representation made to it in the application for this certificate, and the sum of twenty-five dollars to it in hand paid, and the further sum of five dollars and sixty cents to be contributed bi-monthly * * * do hereby constitute George G. Down * * * a member of this association, in Class B.”

Here was, unquestionably, sufficient evidence of a contract obligation on the part of the defendant to pay the bi-monthly five dollars and sixty cents — whether it be called an assessment or a due — to bring the case within the doctrine of the case of Ross-Lewin.

The further question is raised by the submission — whether the notice given to the defendant of tlie time and amount of the payment in question was sufficient under tlie requirements of the statute (Act of 1883, siopra). We think that what we have already said in respect to the character of the payment is an answer to the objection to the notice.

The provision of tlie statute referred to (§ 17, as amended by £ 5 of chapter 285, Laws of 1887) is as follows : “ Each notice of assessment made by any corporation, association or society transacting the business of life or casulty insurance, or both, upon the co-operative or assessment plan, made upon its members, or any of them, shall truly state the cause and purpose of such assessment. And shall also state the amount paid on the last death claim paid; the name of the deceased member, and tlie maximum face value of the certificate or policy, and if not paid in full, the reason therefor.” The notice given to the defendant served the useful purpose reminding him of the nature of the payment required, the amount to be paid, the day of jiayment and the consequences of his failure to pay. It did not conform to all the requirements of the statute, and we think it need not for tlie reason that the payment called for was not an assessment within the meaning of the statute, and to give it the name of an assessment did not bring it within the statutory provisions. It was, so far as we can see, to all intents and purposes a bi-monthly jiremium, subject to no change of amount or date of payment during the continuance of the membership, unaffected by death losses or other vicissitudes of tlie business, and which the defendant had contracted to pay in consideration of the issuance of the certificate to him.

We think the case was within the doctrine of McDonald v. Doss-Dewin {supra) in respect to the obligation to pay, and that it is not within the purview of the statute in respect to notice of assessments, and, therefore, that judgment should be given to the plaintiff for the amount of the so-called assessment-, with interest from September 1, 1891, but without costs, since costs 'are expressly disclaimed by both parties to the submission.

Lewis, LIaioht and Bkadley, LL, concurred.

So- ordered.

       So in original.


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    John Zorn, Respondent, v. Frederick W. Haake, Appellant.

      Trespass — not maintainable against one in possession of the land.

    An action of trespass qua/re clausum fregit cannot be maintained against one who is in the actual, exclusive and adverse possession of the locus in quo.

    The doctrine that title to the whole of a piece of land and possession of. a part gives constructive possession of the whole does not apply where the possession of the locus in quo is actually in another,
    Appeal by tbe defendant, Frederick W. Háake, from a judgment of tlie Supreme Court in favor of the plaintiff, entered in the office of the clerk of Erie county on the 15th*day of March, 1893, upon a verdict rendered at the Erie Circuit, and from an order entered in said clerk’s office on. the 23d day of June, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      Stephen Lockwood, for the .appellant.

      Allen, & Butterfield, for the respondent.
   Dwight, P. J.:

The action was trespass to lands. The parties owned and occupied adjoining lots on the west side of Bailey avenue in the city of Buffalo. Jacob Klein was their common source of title. He took title, in 1867, to the entire front of lots Nos. 51 and 52 of the Buffalo Creek reservation, on the Williarnsville road (now Bailey avenue), being, by description, 20 chains 20 links, or 1,353 feet, in length along the west side of Bailey avenue. The strip was bounded on the south by the south line of lot 51 and on the north loy the south line of lot 53. The south line of lot 51 was the center line of Clinton street^ which crossed the Williarnsville road at right angles and Clinton street was sixty-six feet wide ; so that, deducting from the entire length of the strip as given in Klein’s deed, one-half the width of Clinton street, his front on Bailey avenue was, by description, 1,320 feet.

In the years 1812, 1873, 1880 and 1881, Klein sold off and conveyed several lots varying from thirty to ninety feet front, all located in succession from the north end towards the south, but in each of the conveyances the description commenced at the southeast corner of tlie lot conveyed, wliicli was described as being so many feet from the north line of Clinton street. Thus, of the first lot, conveyed to Johannah Buse, the front line was described as commencing in the west line of the Williamsville road (Bailey avenue) 1,260 feet from the north line of Clinton street, and running north sixty feet, which, according to the description in Klein’s deed, would bring it to the north line of the strip, or the south line of lot 53. So, in case of each successive conveyance the width of the lot conveyed was added to that of all the lots previously conveyed, and the sum being deducted from the whole 1,320 feet front, gave the distance from the north line of Clinton street, at which the description began. This,,in effect, bounded each lot on the north by the south' line of the lot next previously conveyed. The plaintiff’s lot was the seventh in the order of conveyance and of consecutive location from the north southward. The six lots previously conveyed had an aggregate front of 350 feet, and the plaintiff’s of thirty feet, and, accordingly, the description in his deed commenced at a point-940 feet north from the north line of Clinton street. The next conveyance was in 1881 to one Martin, of a lot ninety feet front, and the description began at a point 850 feet north from the north line of Clinton street. This was the lot subsequently conveyed to the defendant.

The plaintiff took his deed in 1880, at which time there was a fence on the supposed south line of the lot north of him, and he took possession of thirty feet front south of that fence.' "Within a year or two thereafter he built a fence part way through from the front, on his supposed south line, thirty feet south from the fence above mentioned, and within a year or two from the same time. Martin, the- defendant’s grantor, completed the fence through to the rear of their lots on the same line. The plaintiff testifies that he built his part of the fence on the line which his grantor pointed out to him as his south line, and that he and- the defendant’s grantor agreed on the division of the fence between them substantially as it was built by them at this time.

The defendant took his title in 1890, taking possession up to the line of the fence last above mentioned. In January, 1891, he commenced to excavate clay for bricks in the north part of his lot near the fence. lie did so without objection from the plaintiff, until the latter became alarmed for the safety of his fence, and objected to his coming nearer the line. XJpon the defendant’s persisting, the plaintiff procured a surveyor to locate the line accurately, and was as much surprised as the defendant was to learn that the point 940 feet north from the north line of Clinton street, which, according to the description in both deeds, was the plaintiff’s southeast and the defendant’s northeast corner, fell nine and one-fourth feet south of the fence between their lots, but he proceeded thereupon to bring his action for damages for breaking and entering his close and taking and carrying away the soil of his lot.

That action, we suppose, could not be maintained on the facts stated, for want of possession in the plaintiff, and the objection was taken by the defendant in his motion for a nonsuit on that ground. The action of trespass guare clausum fregit has always been regarded as a possessory action, and one which could be maintained only by the party in possession. (4 Kent’s Comm. 120, note d; Campbell Arnold, Johns. 511; Tobey v. Webster, 3 id. 468; Stuyvesant v. Dunham, 9 id. 61; Frost v. Duncan, 19 Barb. 560.) It is true that the possession necessary to the maintenance of the action need not in all cases be an actual possession. As was said by Chief Justice NelsoN in Holmes v. Seeley (19 Wend. 507): “The plaintiff must have the actual possession at the time, or, what is deemed equivalent, a possession which the legal title draws after it.” But the legal title does not draw after it the possession of land which is at the same time in the actual, exclusive and adverse possession of another. In Van Rensselaer v. Radcliff (10 Wend. 639) it was held that a party having title to lands, though not in the actual possession thereof, may maintain trespass against another who is not, himself, in the actual possession of the premises. The language of Judge Savage, at pages 652 and 653, was: “ The possession of the plaintiff was sufficient against a stranger ; he showed title to lands which were not in the possession of any other; he was, therefore, in possession, as, in such cases, the possession follows the title.” (See, also, Wickham v. Freeman, 12 Johns. 183, 184.) The cases cited by counsel for the plaintiff, to the effect that title to the whole and possession of a part give constructive possession of the whole, do not apply to cases where the possession of the locus in quo is actually in the defendant. In Munro v. Merchant (28 N. Y. 9) the question was what form of holding was sufficient to constitute an adverse possession in the plaintiff, but here was adverse possession in the defendant. It is impossible that two persons should be in possession of the same piece of land at the same time, unless they are joint tenants or tenants in common.

In the case of The Congregational Society v. Baker (15 Vt. 119), it was held that, to maintain trespass gua/re dausmn fregit, the plaintiff must have, either title or exclusive possession, and there must be no adverse possession in any other person. Here the actual, exclusive and adverse possession of the defendant ivas unquestioned. The principles involved in this discussion were well stated, by the Supreme Court of North Carolina, in Dobbs v. Gallidge (4 Dev. & Batt. 68) as follows : “ The action of trespass quare clausmn fregit, being a remedy for injury to the possession, cannot be maintained by him who had not possession when the wrong was done. But where there is no actual possession in another, the law adjudges him in possession who has the property, and this possession, which is usually called constructive possession, is fully sufficient to maintain the action.”

The answer here given to the plaintiff’s present action renders it unnecessary to consider the questions which might have properly arisen in the case, had the action been one asserting title in the plaintiff, and claiming to recover possession of the defendant.

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

Lewis, Haight and Beadley, JJ., concurred.

So ordered.


text:
    Harriet A. Raymond, Dora S. Rappleyea, and Ira June Lotzar, Plaintiffs, v. Rochester Trust and Safe Deposit Company, as Administrator, with the Will Annexed, of Henry B. Raymond, Deceased, Defendant.

      Trust imposed upon an executor ■ — ■ estate for life or widowhood — the union of the interest of life tenant and remaindermen in the widoto does not terminate the trust.

    A will, after giving to the testator’s wife the use of all his property during her life or widowhood, accompanied with a direction for the maintenance of the testator’s father, and giving the remainder, on the death or remarriage of the wife, to the testator’s children, provided as follows: “I authorize my executors, hereinafter named, out of any moneys which may come into their hands, to pay any and all taxes, interest or payments on incumbrances on my real estate, which in their discretion may he necessary and proper; and I further authorize and empower my said executors to sell and dispose of any and all of my real estate, and give good and sufficient deeds of conveyance therefor.”

      Held, on the submission of a controversy for the construction of the will, that the person finally charged with the execution of the will, though not in terms denominated a trustee by the will, was yet manifestly charged thereby with a trust in respect to the personal estate which could not be divested or extinguished during the life or widowhood of the testator’s widow, and which required the person charged with the trust to retain possession of the corpus of the personal estate during the continuance of the trust.
    Such a trust is not terminated or extinguished by the union of the interests of the life tenant and remaindermen in one person.
    Submission of a controversy, without action, upon an agreed statement of facts under section 1279 of the Code of Civil Procedure.
    The question to be submitted to the court arose under the will of Henry B. Raymond and was as follows: Under the provisions of said will, is there an existing trust as to the personal property in the hands of the defendant as such administrator with the will annexed, which cannot be divested- and extinguished during the lifetime or widowhood of the plaintiff, Harriet A. Raymond?

      W. II. Shuart, for the plaintiffs.

      W. 21. Cogsioell, for the defendant.
   Dwight, P. J.:

The controversy here submitted relates to the construction of the. will of the defendant’s testator, of which the following is the text complete, viz.:

“ I, Henry B. Raymond, of the city of Rochester, Monroe county, N. Y., do make, publish and declare this my last will and testament as follows, to wit:
“First. After all my lawful debts and funeral expenses are paid I give, devise and bequeath to my wife, ITattie A. Raymond, the use of all my real and personal property, including all life insurance moneys, during the term of her natural life, or so long as she shall remain my widow, charging and directing, however, that my said wife give and furnish to my father, Alexander B. Raymond, a good and comfortable support and maintenance during his natural life.
Second. After the death or remarriage of my said wife I give, devise and bequeath the rest, residue and remainder of my property to my children, Frank II. Raymond and Dora S. Rappleyea, forever, share and share alike.
“Third. I authorize my executors, hereinafter named, out of any moneys which may come into their hands, to pay any and all taxes, interest or payments on incumbrances on my real estate, which in their discretion may be necessary and proper, and I further authorize and empower my said executors to sell and dispose of 'any and all of my real estate, and give good and sufficient deeds of conveyance therefor.
“ I hereby constitute and appoint my said wife, Hattie A. Raymond, and John 0. Bertholf of the city of Rochester, Monroe county, N. Y., as the executors of this my last will and testament, revoking hereby all former wills by me made.
“ In witness whereof I have hereunto set my hand and affixed my seal this 23rd day of February, 1891.
“ (Signed) HENRY B. RAYMOND, [l. s.] ” ■

The specific question submitted is whether this will, by its third clause, creates a trust as to personal property which cannot be divested or'extinguished during the lifetime or widowhood of the widow, the plaintiff Harriet A. Raymond.

Letters testamentary were originally granted to John 0. Bertholf, above named, as one of the executors of the will, but they were subsequently revoked and letters of administration with the will annexed were issued to the defendant.

The controversy arises under the following circumstances: The' devisee and legatee in remainder, Frank II. Raymond, has sold all his interest in the estate, real and personal, to the plaintiff jLotzar, and the latter, with the other legatee and devisee in remainder, Mrs. Rappleyea, have agreed to sell all their interest in the estate to the widow, and she has agreed to purchase the same at a fixed price, provided the defendant, as administrator, etc., will account and pay over to her, as the assignee of the other two plaintiffs, absolutely, all the balance of personal property remaining in its hands.. This the defendant, as such administrator, declines to do before it shall have been judicially determined whether there is not an existing trust under the will which cannot be divested or extinguished during the life or widowhood of the plaintiff, Mrs. Raymond, and it unites in the present submission to obtain the determination mentioned.

The action of the defendant was prudent, and its contention here we believe to be well founded. The defendant, as successor or substitute for the executors named in the will, though not in terms denominated a trustee by the will, was yet manifestly charged with a trust in respect to the personal estate. (Ward v. Ward, 105 N. Y. 68, and the cases cited ; Marx v. McGlynn, 88 id. 358-375.) In this case the trust was not merely to invest the moneys of the estate and collect the income thereof and pay it to the widow, during the term limited by the will, but also, in their discretion, to apply such moneys for the benefit of the real estate, not only in the payment of taxes and assessments, but in the reduction of existing incum-brances thereon. These incidents certainly rendered the possession of the corjoics of the estate by the executors convenient and reasonably necessary,” and, as was said in Ward v. Ward (supra), rendered them trustees for the performance of their duties to the same extent as though declared to be so by the most explicit language.”

Such a trust, being created and devolved upon the person or persons finally charged with the execution of the will, it seems to be settled by authority, as well as consonant with the reason of the case, that it will not be terminated or extinguished by the union of the interests of the life tenant and the remaindermen in one person. Such is the clear doctrine of the cases of Greer v. Chester (62 Hun, 329; aff'd., 131 N. Y. 629), and Asche v. Asche (113 id. 232), and both the rule and the reason of it are well stated in the opinion of Adlington, surrogate, in The Matter of Lewis (3 Misc. Rep. 164). In the first of the cases cited it resulted from the declared invalidity of certain provisions of the will, that the beneficial interest in a trust for life and the estate in remainder in the same fund became at once united in the same person. The court at General Term, in the third department, say: “ There is nothing inconsistent in the fact that the trustee should have an estate in trust for the life of the beneficiary * * * and that the beneficiary should have the remainder in fee. * * * lie can dispose of the remainder in the half of the estate in which he has a beneficial interest subject to the trust. (1 R. S. 729, § 61). But, notwithstanding this, the object of the testatrix (as we may suppose), viz., to secure the income to the grandson for life against the risks of business or improvidence, should be carried out.” And in Asche v. Asche, the widow, as in this case, was the beneficiary of the trust for her life, and the remaindermen were her own two children, and it was argued that upon the death of both children the widow, as their heir, and at the same time the sole beneficiary of .the trust, would become entitled to the immediate possession and control of the trust fund. But the court say: “We do not think so. The object of the creation of the trust estate would not then have been accomplished. The intention of the testator to put the corpus of the fund beyond the hazard of impairment and waste during the life of his wife, cannot be defeated or affected by the acquisition by her of the estates in remainder created by the will.”

This statement discloses an apparently sufficient reason for the rule previously stated, and it is applicable, in terms, to the case before us.

The question propounded by this submission must be answered in the affirmative, and judgment accordingly directed in favor of the defendant.

Lewis and Haight, JJ., concurred.

Judgment on the submission ordered for the defendant, with costs, payable out of the fund.


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    George H. Thornton, Respondent, v. James C. Rogers, Appellant.

      Jfew trial — v&rdiot aga/inst evidence — charge for a copy of testimony talcen as to a contested seat in the Senate.

    On tlie trial of an action brought to recover from the contestant of a seat in the State Senate fees for a copy of the minutes of the contest, the plaintiff, who was the official stenographer of the Senate and of the committee to which the contest was referred, testified that the copy was furnished on the request of the contestant’s counsel, from day to day as the investigation of the contest proceeded, under an agreement by the counsel, on behalf of the contestant, to pay therefor at a certain rate per folio. The plaintiff was positively contradicted by the counsel, and the defendant introduced in evidence a letter written by him to the plaintiff, at the close of his case on the contest, requesting that, if the plaintiff had prepared copies of the minutes, he would send one to the counsel for use in making his brief, stating that if sent it would be returned to the committee with the brief, and a reply from the plaintiff that he would send a copy as requested. The jury rendered a verdict for the plaintiff, and a motion by the defendant for a new trial was denied,

      Meld, that a new trial should have been granted, on the ground that the verdict was against the weight of evidence. (Haight, J., dissenting.)
    Appeal by the defendant, James 0. Rogers, from a judgment of Supreme Court in favor of the plaintiff, entered in the office of the clerk of Erie county on the 2Sth day of October, 1892, upon a verdict rendered at the Erie Circuit, and from an order denying the defendant’s motion for a new trial made upon the minutes on the 2d day of March, 1893.

      J. O. Rogers, for the appellant, in person.

      John Laughlin, for the respondent.
   Dwight, P. J.:

The defendant, during the session of the Senate of this State in the year 1890, contested the seat of the sitting member for the sixteenth senatorial district. The plaintiff was the official stenographer of the Senate and of the committee of privileges and elections, to which the defendant’s contest was referred for investigation. During, or at the close of the taking of testimony by the committee, the plaintiff furnished to the defendant a copy of the minutes of the proceeding, and in October, 1891, this action was commenced, in which, by his original complaint, he claimed to recover only on a qucmt/um meruit the sum of $680 for such copy. Issue was joined by an answer and an amended answer of the defendant, and he made an offer of judgment for $225, which was not accepted. At the opening of the trial the plaintiff was permitted to amend his complaint by inserting an allegation of a special contract of the defendant by Mr. George B. Wellington, his counsel in the legislative proceeding, to pay the plaintiff for the copy of the minutes to be furnished to him at the rate of twenty cents a folio.

To maintain the affirmative of the issue thus made the plaintiff gave no evidence except by his own testimony. He testified that the investigation was commenced in the latter part of January, 1890; that after the first two or three sittings of the committee, Mr. Wellington applied to him to be furnished with copies of the minutes; that he agreed to furnish them at twenty cents a folio and that he did so — having a copy of the testimony taken up to that time transcribed and furnished to Mr. Wellington — and, after that, furnished him with copies as the investigation proceeded. He denied any recollection or belief that he ever received any letter from the defendant himself on the subject of furnishing the copy to him or his counsel, and lie reiterated more than once his statement of the manner in which the copy was furnished; — once in the following language on cross-examination : “ Tes, sir; I say that I furnished the testimony along in detached parts, a session at a time, as a rule.”

The testimony thus given was met on the part of the defendant by the testimony of Mr. Wellington, who positively denied that he ever applied to the plaintiff for a copy of the minutes; that he ever promised to pay him twenty cents a folio for such a copy, or ever had any conversation with him on the subject; by the testimony of the defendant to the effect that in the latter part of March, .and after the case for the contestant was closed, he wrote a letter to the plaintiff, informing him that Mr. Wellington desired a copy of the stenographer’s minutes for the purpose of making his brief for argument, and that if he (the plaintiff) had prepared copies of the minutes and would send one of them to Mr. Wellington to be used for the purpose mentioned, it would be returned to the committee with the brief at the close of the case; that the next day lie received a letter in answer from the plaintiff. The letter of the plaintiff was produced and put in evidence ; it was as follows:

“ AlbaNY, March 21, 1890. •
Gen. James 0. Rogebs : ■
“ Deab SiR' — •Tour favor of yesterday is at band. I will have prepared and send to Mr. Wellington a copy of tbe proceedings tints far taken, as you request.
“ Tours truly,
“(Signed) GEORGE H. THORNTON.”

Tlie foregoing statement contains tbe substance of tbe material evidence in tbe case, upon tbe submission of wbicb to tbe jury a verdict was rendered in favor of tbe ■ plaintiff. The defendant moved for a new trial upon tbe ground, among others, that the verdict was contrary to the evidence, and bis motion was denied.

W e think tbe motion was well founded and that its denial was error. . .

Tbe plaintiff held tbe affirmative of tbe issue, and was bound to support it by a fair preponderance of tbe evidence or fail of a recovery. To that purpose his own testimony stood alone. It was uncorroborated by any evidence in tbe case, either direct or presumptive. He was interested in tbe result of tbe action to the full extent of tbe recovery sought. He was fully contradicted upon tbe question directly in issue by tbe testimony of a disinterested witness, and by tbe well-nigh conclusive presumption to be drawn from bis own letter to tbe defendant. It is not easily credible that be should have written that letter, in answer to tbe letter of tbe defendant, tbe receipt of which be acknowledges, if be bad already concluded a bargain with tbe defendant’s counsel to furnish him copies of tbe minutes at a price agreed upon; and especially if, as he repeatedly testifies, be bad already been engaged for nearly two months in furnishing tbe counsel with these copies from day to day of tbe sessions of tbe committee.

We understand tbe reluctance with wbicb a judge at tbe Circuit, who has once submitted a case to the jury, interferes to set aside tlie verdict when it is rendered in response to such submission, but that, sometimes, it may be bis duty to do so, cannot be doubted; and this even in a case where bis denial of a motion for a nonsuit was not error. For, as was said by Allen, J., in Colt v. Sixth Ave. 12. 12. Co. (49 N. Y. 671), the evidence may be sufficient in law to sustain a verdict although so greatly against the apparent weight of evidence as to justify the granting of a new trial. (See, also, Adsit v. Wilson, 7 How. Pr. 64, 66; Smith v. Ætna Life Insurance Co., 49 N. 7. 211; Mulligan v. N. Y. C. & H. R. R. R. Co., 33 N. Y. St. Repr. 534.)

It is manifest that the present is a strong case for setting aside the verdict. The contradiction of the plaintiff was not by the other party interested, but by a disinterested witness and by the letter of the plaintiff himself. It is impossible to say that this verdict is supported by a fair preponderance of the evidence. The contrary is plainly the case, and the motion for a new trial should have been granted, on that ground if no other.

Lewis, J., concurred; Haigiit, J., dissented.

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


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    J. Clarence Osburn, Appellant, v. Clara Delafield and Others, Respondents.

      Commission merchants — violation of instructions as totlie price at wMchto sell goods,

    When a consignor of goods, for sale on commission, instructs the consignee to sell the goods at a price which will pay the consignee Ms advances, freight and commissions, and the consignee sells for a less price and draws for the difference, the consignor, who does not pay the draft, having sustained no loss by the violation of his instructions, cannot maintain an action against the consignee for the difference between the price as fixed by his instructions and the price at which the goods were sold.
    Appeal by the plaintiff, J. Clarence Osburn, from a judgment of the Supreme Court dismissing his complaint upon the merits, entered in the office of the clerk of Cayuga county on the Yth day of June, 1893, upon the report of a referee.
    The action was brought to recover as damages the difference between the price at which the defendants sold a consignment of dried apples, consigned to them by the plaintiff for sale on commission, and the sum for which'the plaintiff had authorized the apples to be sold.

      Lows E. Fuller, for tbe appellant.

      E M. Wells, for tbe respondents.
   Dwight, P. J.:

On tbe 24th of November, 1891, tbe plaintiff, at Port Byron, in Cayuga county, consigned to tbe defendants, commission merchants at New York city, 200 boxes of evaporated apples, to be sold for bis account, and received from them an advance on tbe consignment of $500. The defendants also paid freight and other charges on the shipment, which, with their commissions on the sale, finally made, amounted to the sum of seventy-two dollars and seventy-five cents. The market for the goods seems to have been a falling market, and after some correspondence between the parties in respect to the price at which they should be sold, the plaintiff, finally, by the letter of April 12, 1892, consented to a sale of the. apples — to quote the language of the letter — “ at a price that will pay you what you have paid me and your freights and com.”

On the twenty-eighth of April the defendants, without further communication with the plaintiff, sold the apples for a price less than that limited by the plaintiff’s letter of April twelfth, and rendered to him an account of sales, which charged him with the amount advanced and interest, with freight and other charges, and with their commissions, and credited him with the amount received for the apples. The statement exhibited an apparent balance due them of $138.34, for which they drew on him at sight.

The plaintiff did not pay the draft, but he brought this action, in which he claimed to recover from the defendants the difference between the price limited by his letter of April twelfth and the price at which the apples were sold. Upon his own theory of the case, the action was ill-advised. lie might have well rested content with his advantage and have permitted the defendants to bear the loss which they had themselves incurred by selling the consignment for less than their advance and expenses. Certainly the plaintiff had sustained no loss by the violation of his instructions, for he had already received, or had the benefit of the full price at which lie had authorized the sale to be made, viz., the amount advanced by the defendants on receipt of the consignment and their expenses and commissions.

The facts above recited are found by the referee mainly as requested by the plaintiff, and his conclusions of law and direction for judgment are well founded thereon.

The judgment' entered accordingly, must be affirmed.

Lewis and Haight, JJ., concurred.

Judgment appealed from affirmed.


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    Henry Oberlies, Respondent, v. Balthasar Bullinger, Appellant.

      Building contract — a/rbitration — ae’chitect’s certificates as to final payment — distinction between substantial and minor defeats in the work — damages for delay.

    A contract for tlie carpenter work of a house, after providing that the owner might make any “alterations, deviations, additions or omissions” in the work or materials, the true value of which should he added to or deducted from the contract price, as the case might he, provided in a subsequent clause that “should any dispute arise as to the true value of the alterations, deviations, additions or omissions in the work or the materials hereby contracted for,” the value in dispute should he determined by arbitration ;
    Held, that the “alterations, deviations, additions or omissions” which were made the subjects of arbitration were those which the owner might make, and did not include shortcomings and defects resulting from the error or bad faith of the contractor;
    And, hence, that proof of an arbitration or offer to arbitrate upon a defect resulting from the contractor’s failure to fully comply with the contract and specifications, was not a condition precedent to the contractor’s right of action against the owner for the unpaid balance of the contract price.
    The contract also contained the following clause; “Eighty per cent of the value of the work executed will be paid from time to time as the work progresses, and the balance when the whole job has been completed and accepted. Payments made in accordance with the architect’s certificates.”
    Held, that the wording of this clause did not make an architect’s certificate that the work had been completed in full compliance with the contract and specifications a condition precedent to the contractor’s right of action against the owner for the balance of the contract price withheld until the completion of the work;
    That no final certificate of the architect could deprive the defendant owner of either a complete or partial defense to the contractor’s action for the unpaid balance of the contract price — the former in case of a substantial failure on the part of the contractor to perform his contract, the latter in case of minor defects of performance for which compensation might be rendered in damages.
    In such an action brought by the contractor to recover from the owner the unpaid balance of the contract juice of the work, the question of the defendant’s damages by reason of the plaintiffs delay in the completion of the work was litigated and submitted to the jury under the instruction that if the defendant permitted the plaintiff to go on with the work after the time limited by the contract, without expressing his disapproval and' dissatisfaction, he thereby waived the damages for such delay which he might otherwise .have claimed,

      Held, that such instruction was improper
    The trial court instructed the jury, in respect to what might constitute a substantial failure of performance of his contract on the part of the plaintiff, to the effect that no defect of construction could be regarded as substantial unless it was one which ran through the entire structure, and which could not be remedied without disturbing or interfering with the main building.

      Held, that this instruction was erroneous.
    Appeal by the defendant, Balthasar Bnllinger, from a judgment ■of the Supreme Court in favor of the plaintiff, entered in the office •of the clerk of Monroe county on the 12th day of November, 1892, upon a verdict rendered at the Monroe Circuit, and from an order denying the defendant’s motion for a new trial made upon the minutes.
    IF. S. Jl'uibell, for the appellant.

      A. Benedict, for the respondent.
   Dwight, P. J.:

The action was to recover a balance claimed to be due on a contract by which plaintiff agreed to do all the carpenter work of a •house, to be built for the defendant, for the sum of $3,050. The complaint sets out the contract in full, and it contains the following, among other provisions:

“ Eighty per cent of the value of the work executed will be paid from time to time as the work progresses, and the balance when the whole job has been completed and accepted. Payments made in accordance with the architect’s certificates. * * *
“ Second. The party of the second part shall have the right and privilege, at any time during the progress of the said building, to make any" alterations, deviations, additions or omissions in the work or materials hereby contracted for, without making void this contract ; but the true value of said alterations, deviations, additions or omissions shall be added to or deducted from the amount specified in this contract, as the case may be. * * *
“fourth. Should any dispute arise respecting the true construction or meaning of the drawings or specifications, the same shall be decided by Oscar Knebel, architect, employed by party of the second part to superintend the construction of said building, with a view to the due execution of the works on the part of the party of the first part, and liis decision shall be final and conclusive; but should any dispute arise as to the true value of the alterations, deviations, additions or omissions in the work or the materials hereby contracted for, the value in dispute shall be determined by two competent persons, one employed by the party of the first part and the other by the party of the second part, and they shall have power to name an umpire, whose decision shall be binding on all parties.”

The architect made no inspection of the work during its progress,, and made no certificates of the amounts earned by the contractor from time to time, but the defendant made payments from time to time aggregating the sum of $1,900, and leaving unpaid of the contract price the sum of $1,150, for which, together with a small amount for extra work, this action was brought.

After the work was completed, as was claimed by the plaintiff, the architect made such inspection as he was then able to make, and gave to the plaintiff a certificate, in the following terms, addressed to the defendant:

“ Sir — This will certify that the carpenter and joiner work of your house on Alexander st., under contract with Iienry Oberlies, has been completed in accordance with the plans and specifications, with the exception of the roof of the addition, which is deficient in height about 5 inches.
“ (Signed) OSOAR KNEBEL,
Architect.”

The plaintiff presented this certificate to the defendant and demanded the entire balance of the contract price, together with the value of the extra work, amounting in all to the sum of $1,223.15, which the defendant declined to pay ; and lie declined to accept the house as built and completed in accordance with the contract.

There are other particulars, of perhaps minor importance, besides the defect in height of the rear portion of the house, in which the defendant complains that the work of the plaintiff was not done in conformity with the contract and specifications, and it is conceded' that the wort was not completed until something more than a month after the time, November 1, 1881, which was fixed, by the contract, for its completion.

The case has been twice tried. On 'the first trial, in January, 1890, the court directed a nonsuit, and ordered the plaintiffs except tions to be heard in the first instance at the General Term. A motion for a new trial was accordingly made in this court and was^ denied and judgment was ordered for the defendant on the nonsuit. It was then considered that, as matter of law, upon the undisputed evidence of the defect in the construction of the roof, the contract had not been substantially performed. (See opinion of the court by Macomber, J., 33 N. Y. St. Repr. 443.) On an appeal to the Court of Appeals the judgment entered on the order of this court was reversed, and a new trial was granted, it being there held that the defect in question was not shown to be such as to warrant the court in lidding, as matter of law, that the contract had not been substantially performed, but that whether it had been or not was-properly a question of fact for the jury. (See opinion per Curiam, 132 N. Y. 598.) The result of the new trial thus granted, and now under review, was a verdict in favor of the qfiaintiff for $1,217.96.

Two questions discussed on the present appeal were not determined by the decision of the Court of Appeals. One of them seems not to have been considered, and the other was held not to be presented by the record, because not raised on the trial. Both of these questions relate to what are claimed by the defendant to be conditions precedent to a cause of action on the part of the plaintiff ; both arise upon provisions of the contract which are quoted above, and both were raised on the second trial.

In respect to the last mentioned of them, the Court of Appeals, after quoting the fourth clause of the contract, as above quoted, said: “ The defendant seeks to uphold the nonsuit on the ground that an arbitration to settle the amount due under the contract was a condition precedent to the plaintiff’s right to recover, and that having failed to show that an arbitration has been had or that he has offered to arbitrate, he was not entitled to recover. The answer to this position is that this question was not raised on the trial; * * * had the defendant raised this objection the plaintiff might have shown that the defendant had refused to arbitrate or that an arbitration had been waived.”

The question was, undoubtedly, raised on the last trial, with the same absence of proof of an arbitration, or an offer to arbitrate, but the complete answer to it, we think, is that neither the claim of the plaintiff to recover, nor that of the defendant for damages, is within the provision for arbitration contained in the contract. Upon recurring to the fourth clause (supra) it will be seen that the only matter to be arbitrated is any dispute ” which may “ arise as to the true value of the alterations, deviations, additions or'omissions in the work or materials hereby contracted for.” "What are “ the alterations, deviations, additions or omissions ” here mentioned % The use of the definite article is significant. It suggests tliat the alterations, etc., referred to are elsewhere mentioned and provided for in the contract. And so we find in the second clause of the contract, above quoted, a provision giving to the party of the second part, the owner, the privilege, at any time during the progress of the building, to make any alterations, deviations, additions or omissions ” in the work or materials contracted for, the true value of which shall be added to or deducted from the contract price, as the case may be. These are, undoubtedly, the same alterations, deviations, additions or omissions” mentioned in the fourth clause, the true value of which, in case of dispute, is to be determined by arbitration. And these being such as the owner has the privilege to make, or cause to be made, it is evident that the category does not include shortcomings and defects which result from the error or bad faith of the contractor.

The other condition precedent to a recovery, contended for by the defendant, was the certificate of the architect that the work was completed in full compliance with the contract and specifications. But it is doubtful whether the words “ payments to be made in accordance with the architect’s certificates,” in the provisions of the contract first above quoted, have any application at all to the final payment of the amounts withheld during the progress of the work; certain it is that they cannot have the force for which the defendant contends, for that would be to make the architect the final arbiter of the rights of the parties. The most obvious reference is to those payments, to be made from time to time, which require the estimate and computation by an expert of the amount of work done and materials furnished, and, consequently, of the amount of money earned, since the last payment. The scheme of the contract, in this respect, is that twenty per centum of the amount earned by the con^ tractor, shall be withheld throughout the progress of the work, and that the eighty per cent to be paid from time to time shall be certified to be due by the architect after the estimate and computation necessary to ascertain the amount. The final payment requires no such estimate or computation, but is merely the balance of the contract price after deducting the payments already made.

But, further, to make the certificate of the architect that the work is completed, in all respects, in full compliance with the specifications of the contract, a condition precedent to the right to receive the final payment, would be to ignore the distinction which the law makes between substantial and minor defects of construction, or those which work a forfeiture of the contract and those for which compensation may be rendered in damages. Clearly, the question whether the defect described in the actual certificate was of the former or of the latter class, could not be finally determined by the architect, but was a question upon which either party was .entitled to take the judgment of the law.

"We conclude, therefore, that neither an offer to arbitrate nor an 'unqualified certificate of the architect was a condition precedent to the plaintiff’s right of action. On the other hand, by a similar course of reasoning, we arrive at the conclusion that no final certificate of the architect could have the effect to deprive the defendant of either .a .'complete or a partial defense to an action for the balance of the contract price, the former in case of a substantial failure to perform his contract on the part of the plaintiff, the latter in case of minor defects of performance (including delay in the completion of the work), for which compensation might be rendered in damages. Both of these questions were, therefore, issues to be litigated in this case, and both were questions for the jury. The defendant’s motions for a nonsuit and for the direction of a verdict were, therefore, properly denied, but for the same reasons it was error to exclude evidence of defects in construction other than that one specified in the certificate of the architect, and the defendant’s exceptions to rulings of that character were well taken.

"We think, too, that some of tlie defendant’s exceptions to the charge of the court point to error in the submission of the case to the jury, which must be fatal to the verdict. The question of damages for delay in the completion of the work was litigated, and was submitted to the jury under the instruction that if the defendant permitted the plaintiff to go on with the work after the time limited by the contract, without expressing his disapproval and dissatisfaction, he thereby waived the damages for such delay which he might otherwise have claimed. This, of course, was error, arising, probably, from a momentary confusion of the waiver of damages with the waiver of forfeiture, as a complete defense, by reason of delay; and we see no evidence that it did not mislead the jury, to the prejudice of the defendant on the question of damages.

Another exception was well taken to the instruction given to the jury in respect to what might constitute a substantial failure of performance of his contract on the part of the plaintiff, to the effect, viz., that no defect of construction could be regarded as substantial unless it was one which ran through the entire structure, and which could not be remedied without disturbing or interfering with the main building.

Eor the errors indicated the judgment entered on the verdict of ¡the jury must be reversed, and a new trial may be had in which it is to be hoped that the questions for the jury here pointed out may be fully tried and .an end may be reached of an already protracted litigation.

Lewis and Haight, JJ., concurred.

Judgment and order appealed from reversed, and new trial granted, costs to abide the event,


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    Edward H. Nies, Respondent, v. Calvin E. Broadhead and Others, Appellants.

      Photographs as evidence — irresponsive answer of a witness.

    It is not essential to the competency of a photograph as evidence, that its accuracy as a true representation of its subject should be verified by the photographer who took it.
    Such verification, if required, may be furnished by any other eye witness of equally correct vision and powers of observation as the photographer, and equally interested to observe the features of the scene depicted.
    Photographs of the scene of a personal injury are admissible in evidence, as an aid in%he investigation of an action to recover damages for the injury, when they bear evidence, on their face, of the correctness of their representation of the scene depicted, in clearness of delineation, sharpness of outline, correct perspective, and in the just proportion between the various objects.
    The fact that the answer of a witness is not strictly responsive to the question on direct examination does not necessarily entitle the party against whom the evidence is given to have it stricken out.
    On the contrary, if the evidence embraced in the answer is, in itself, competent, and such as might be properly educed by another question, it is in the discre-' tion of the court to let the answer stand.
    Appeal by the defendants, Calvin E. Broadhead and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Monroe county on the 14th day of January, 1893, upon a verdict rendered at the Monroe Circuit, and from an order entered in said clerk’s office the 4th day of March, 1893, denying the defendants’ motion for a new trial made upon the minutes.

      II. G. Danforth, for the appellants.

      JE. Van VoorMs, for the respondent.
   Dwight, P. J.:

The action was for a bodily injury sustained by the plaintiff in being thrown from or in his buggy, down a high bank by the side of a temporary road constructed by the defendants to avoid a deep cut by which they had intersected the highway, in the construction of a railroad.

The motion for a new trial purported to be made “ on all the grounds set forth in section 999 of the Code of Civil Procedure,” but the only ground which seems to have been argued below was an exception to the admission in evidence of several'photographs of the locus of the accident, taken from different points of view; and that is the principal question made on this appeal.

The proofs preliminary to the introduction of the photographs showed that they were taken by a photographer about six weeks after the accident, and that the road and its surroundings had not been changed, in the meantime, in any substantial particular; and the plaintiff, who accompanied the photographer, and who had, himself, after that time, some experience in taking photographs, testified that each of the pictures was a correct representation of the scene from the point of view of each, at the time it was taken. This testimony was not contradicted.

Some time after the photographs were proved, as above stated, and marked for identification, they were offered in evidence by counsel for the plaintiff, whereupon, as we read from the record, counsel for the defendants objected to the evidence as incompetent; that there were changes between the time the accident occurred and the time the photographs were taken, and they are not proved by the photographer who took them to be accurate.” The objection was overruled and the defendants excepted. We think the exception was not well taken.

It will be seen that the only real ground of the objection stated, was that the photographer was not called to testify to the accuracy of the pictures. It is true that the photographer is often called, and it is very proper that he should be, to answer particular questions, if desired, in respect to his work; but it is not apparent that he is any more competent to speak of the accuracy of the picture, that is, we suppose, the correctness of the representation, than any other eye witness of equally correct vision and powers of observation, and equally interested to observe the features of the scene depicted. There is no case, we believe, in which the verification of the photographer has been held essential to the competency of the picture as evidence, and there are several cases in which the pictures have been admitted without such verification. (Roosevelt Hospital v. N. Y. El. R. R. Co., 21 N. Y. Supp. 205; Archer v. N. Y., R. H. & H. R. R. Co., 106 N. Y. 589; Alberty v. R. Y., L. E. & W. R. R. Co., 118 id. 71.) In Blair v. Pelham (118 Mass. 420) it was held, in an opinion by Gray, Ch. J., that the photograph must be verified by proof that it was a true representation of the subject; not that such proof must be made by the photographer, but, on the contrary, that the question whether it was sufficiently verified was a preliminary question of fact for the court, and its decision was not open to exception. It seems to be clear that the objection in this case on the ground stated, was not tenable, and was properly overruled. We are unable to see that there was any just ground for' the objection to the admission of the photographs in this case. It is undoubtedly true that photography has come to be recognized as a most efficient aid in investigations, the subjects of which cannot, themselves, be brought into court; and nowhere, as we think, have the principles upon which such aid is received been more correctly set forth than by the Supreme Court of Pennsylvania in 1874 in the case of Udderzook v. Commonwealth (76 Penn. St. 340), where that court said : “ It is evident that the competency of the evidence in such a case depends upon the reliability of the photograph as a work of art, and this, in the case before us, in which no proof was made by experts of this reliability, must depend upon the judicial cognizance we may take of photographs as an established means of producing a correct likeness. The Daguerrean process was first given to the world in 1839. It was soon followed by photography, of which we have had nearly a generation’s experience. It has become a customary and a common mode of taking and preserving views, as well as the likenesses of persons, and has obtained universal assent as to the correctness of its delineations. We know that its principles are derived from science; that the images on the plate, made by the rays of light, through the camera, are dependent on the same general laws which produce the -images of outward forms on the retina through the lenses of the eye. The process has become one in general use, so common that we cannot refuse to take judicial cognizance of it as a proper means of producing correct likenesses.” Much to the same purpose was the remark of our own Court of Appeals in the case of Cowley v. The People (83 N. Y. 464): “ We do not fail to notice, and we may notice judicially, that all civilized communities rely upon photographic pictures for taking and presenting resemblances of persons and animals, of scenery and all natural objects, of buildings and other artificial objects.” ¥e may add tliat we have examined the original photographs in this case, which are in the record before us, and find — as, no doubt, the judge at the Circuit found — that they bear evidence, on their face, of the correctness of their representation of the scenes depicted, in clearness of delineation, sharpness of outline, correct perspective and in the just proportion between the various objects depicted. We have no doubt of the competency or of the usefulness of the evidence in question.

The only other exception mentioned in the argument of counsel for the defendants, on this appeal, was to the refusal of the court to strike out an answer of one of the physicians as not responsive to the question put to him. The question was: “Won’t you state the character of the injury which Mr. Nies received more particularly ? ” The answer was, “ A. He liad, as I termed it, concussion of the spine, and that, if you will allow me to, I will explain to the jury as well as I can, what follows from that. It is considered by competent medical authority that an injury of that character, that don’t immediately make marked improvement and lead on to a complete cure in a few months, never gets well; in other words, after a patient has passed twelve months, without marked bettering of his condition, it shows or argues that there is structural change in the cord there, and it will be permanent.” Defendants’ counsel asked to have the answer stricken out as not responsive. The motion was denied, and the defendants excepted. The fact that the answer of a witness is not strictly responsive to the question on direct examination, does not, necessarily, entitle the party against whom the evidence is given to have it stricken out. On the contrary, if the evidence embraced in the answer is, in itself, competent and such as might be properly educed by another question, it is in the discretion of the court to let the answer stand, the only ground for striking out being that improper evidence has been put into the case in answer to a proper question, and so, without affording an opportunity to the other side to object to its introduction. In this case there was no objection to the evidence on the ground of incompetency, and if there had been we think it would have been untenable. It was, no doubt, competent for the plaintiff to give evidence of the probable duration of the injury which he had received, and whether it was likely to be permanent. Indeed, these are characteristics of an injury or disease, and were, therefore, in a manner, called for by the question by which the witness was asked to state the character of the injury. There seems to be nothing improper about the answer except the form of the expression “it is considered by competent medical authority; ” and this was only another form of stating what the science of medicine teaches on the point in question.

There seems to be no error in the refusal to strike out, and as no further complaint of error is made on this appeal, the judgment and order appealed from should be affirmed.

Lewis and Haight, JJ., concurred.

Judgment and order appealed from affirmed.


author: Haight, J.:

text:
    Queen City Bank, Appellant, v. M. Filmore Brown and Another, Respondents.

      Recoupment by a principal inures to the surety — -an error prejudicial to the respondent, disregarded on appeal.

    When a principal and surety are sued together, a successful recoupment hy the principal inures to the benefit of the surety even though the surety, if sued alone, could not have availed himself of the defense.
    In an action on a note, the maker answered, setting up a counterclaim, and offered to allow judgment to be taken against him for the amount demanded in the complaint, less the counterclaim. The offer was accepted and judgment against him was entered in accordance therewith. The indorser did not answer, and judgment was entered against her for the amount demanded in the complaint.

      3eld, that the indorser was entitled to an order modifying the judgment against her by reducing the amount thereof to the amount of the judgment against the maker of the note.
    Although an order contains an erroneous provision, prejudicial to the respondents, yet if the order is otherwise proper, it will be affirmed on appeal.
    Appeal by the plaintiff, the Queen City Bank, from an order of the Supreme Court, made at the Erie County Special Term and entered in the office of the clerk of the county of Erie on the 3d day of March, 1893, directing that a judgment in favor of the plaintiff against tbe defendants be satisfied upon tbe payment of tbe sum of $286.50.

      Lora/n L. Lewis, Jr., for tbe appellant.

      LIugh, O. Sells, for tbe respondents.
   Haight, J.:

Tbis action was brought to recover tbe amount due on a promissory note made by tbe defendant M. Fillmore Brown, indorsed by tbe defendant Libbie T. Brown, and discounted by tbe plaintiff. Tbe defendant Libbie T. Brown did not appear or answer. Tbe defendant M. Fillmore Brown answered, setting up a counterclaim in which be alleged 'that tbe plaintiff, in discounting this and other notes, bad unlawfully and wrongfully compelled him to pay for tbe use of tbe money a greater sum than tbe rate of interest allowed by law, and that by reason thereof tbe plaintiff bad become indebted to him in tbe sum of forty-five dollars and forty-six cents, which amount be desired to counterclaim upon tbe amount due upon tbe note, and thereupon be offered to allow tbe plaintiff to take judgment against him for tbe balance due upon tbe note. Tbis offer was accepted by tbe plaintiff and judgment entered against tbe defendant M. Fillmore Brown for tbe sum of $286.50, and against defendant Libbie T. Brown for tbe sum of $329.80.

Thereupon a motion was made to correct tbe judgment by reducing tbe recovery against Libbie T. Brown to tbe amount of tbe recovery against .M. Fillmore Brown. Tbe Special Term ordered that tbe defendants, upon payment of tbe amount of tbe judgment entered against M. Fillmore Brown, with tbe interest thereon to tbe plaintiff or its attorney, within ten days from tbe service of tbe order, shall receive satisfaction and discharge of tbe judgment; but if not so paid tbe motion was denied, with ten dollars costs to tbe plaintiff. From tbis order tbe plaintiff appealed.

We do not understand that tbe relief asked for under tbe motion was discretionary with tbe Special Term, and it, therefore, bad no right to impose tbe condition embraced in tbe order, but tbe defendants have not appealed. Therefore, the order may be permitted to stand if they were entitled to tbe modification of "the judgment asked for. It appears that tbe defendant Libbie T. Brown was tbe indorser, and as snob became surety for tbe defendant M. Eillmore Brown, who was the maker of the note and primarily liable for its payment. If she is compelled to pay the amount of the note she has a right to recover the amount so paid from the principal. But her principal has agreed with the plaintiff that the amount of his claim for unlawful interest, collected from him by the plaintiff, should be deducted from the amount of the note, and that judgment taken against him should be only for the balance due. If she is, therefore, compelled to pay the full amount of the note, and he to reimburse her for the amount so paid, he is thus deprived of the benefit of his agreement, and of his right of action against the plaintiff. We do not understand that this can be done. It is quite possible that his counterclaim, as pleaded, could not have been allowed in that action, for the reason that his claim was in the nature of a penalty. But the plaintiff, by allowing it and, accepting his offer, in effect credited that amount upon its claim upon the note, thereby reducing it to the amount for which judgment was entered against him. We understand the rule to be that when the principal and surety are sued together a successful recoupment by the principal inures to the benefit of the surety, even though the surety could not, if sued alone, avail himself or herself of the defense. (Springer v. Dwyer, 50 N. Y. 19-22; Gillespie v. Torrance, 25 id. 306.)

It follows that the defendants were entitled to the relief asked for in their motion, and that, therefore, the order should be affirmed, with ten dollars costs and disbursements.

Dwight, P. J., and Lewis, J., concurred.

Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    Mary Moore, Respondent, v. Citizens’ Mutual Life Insurance Association, Appellant.

      Policy of life insurance — when “ya/i'dmaster” construed as “ya/rdmastcr or yard conductor.”

    A person killed March 20, 1893, was at the time in the employment of a railroad company as a yard conductor, and was in the discharge of his duties. His life was insured by a contract of insurance which stated his occupation to be that of yard conductor or yardmaster, and contained the provision that in the event of his death occurring from any cause arising from his occupation as yardmaster, all claim under such insurance policy was waived by him.
    Upon the trial of an action brought to recover the amount of such insurance the proof showed that at the time of his taking out the policy, in June, 1891, he was yard conductor, and the September following he became yardmaster, and so continued until February 9, 1892. That during February, 1892, he acted in a double capacity as yardmaster and as yard conductor, with the title of yard conductor, and that at 'the time of the accident he was yard conductor.
    The yardmaster in the shifting of cars and making up of trains had charge of yard conductors, who acted under his orders, and had charge of the crews that did the work of shifting the cars and making up the trains.. The duties of both the yardmaster and yard conductor were extra hazardous.

      Held, that the use of the term “yardmaster” in the clause of the contract, whereby a claim thereunder was waived, in case the insured’s death occurred from any cause arising from his occupation as yardmaster, meant the same as his occupation as previously described therein, viz., as yard conductor or yardmaster; That under the provisions of the policy, the death of the insured having occurred by reason of his being engaged in the discharge of his duty as yard conductor, it was error to direct a verdict in- favor of the plaintiff.
    Appeal by the defendant, Citizens’ Mutual Life Insurance Association, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 3d day of March, 1893, upon the verdict of a jury for $2,070.20, by direction of the court, after a trial at the Monroe Circuit.

      L. C. Whiton, for the appellant.

      Walter S. Ilubbell, for the respondent.
   Haight, J.:

This action was brought to recover the sum of $2,000 upon a policy of insurance issued by the defendant upon the life of Jolm Moore, the husband of the plaintiff, and payable to her as beneficiary.

Moore was killed on the 20th day of March, 1892. The evidence tends to show that be was in the employ of the Buffalo, Rochester and Pittsburgh railroad as a yard conductor, and was in the discharge of his duty as such; that he had been sent out by the yardmaster at Rochester to take some cars down to the Rome, Water-town and Ogdensburgli railroad near Charlotte, and to get some cars therefrom; that as they arrived near Charlotte he got upon the tender of the engine and was engaged in giving signals to the engineer; that whilst so engaged in some way he slipped or fell therefrom and was run over and killed.

The defense was that the contract of insurance was entered into by the defendant subject to the following :

“I, John Moore, of Rochester, Monroe county, New York, having applied to the Citizens’ Mutual Life Insurance Association of New York, under date of June 4th, 1891, for $2,000 insurance on my life, and having stated in said application that my occupation was that of a yard conductor or yardmaster, do hereby certify that my duties do not require me to shift or switch cars in the yard, "and I do hereby agree to waive, and do waive, all claim under policy No. Y356, issued to me, in the event of my death occurring from any cause arising from my occupation as said yardmaster, and that in consideration of the statements and representations in this waiver said policy is delivered to me.
“ Dated at Rochester, N. Y., this 6th day of July, 1891.
“(Signed) JOHN MOORE.
“Witness-J. E. WELLINGTON.”

In his application he had described his occupation as that of yard conductor. The evidence tends to show that he had been both yardmaster and yard conductor; that at the time of making the application he was yard conductor; in September following he again became yardmaster, and so continued until February, 1892; that during February, 1892, he acted in a double capacity, as night yardmaster and yard conductor, with the title of yard conductor, and that at the time of the accident he was yard conductor. The yardmaster had charge of the yard conductors in the shifting of cars and the making up of trains. The yard conductor acted under the orders of the yardmaster, and had charge of the crew which did the work of shifting the cars and making up the trains. His duties as yardmaster or yard conductor were extra hazardous, and, as we have seen, he had served and continued to serve in both capacities from time to time. It was under these circumstances that the company exacted the execution of the instrument in question before delivering the policy of insurance. In it, as we have seen, he refers to his occupation as that of a yard conductor or yardmaster.” He then waives all claims under the policy issued to him in the event of his death occurring from any cause arising from my occupation as said yardmaster.” True, in this connection he does not make use of the term “ yard conductor,” but he speaks of his occupation, and evidently refers to it as previously described as that of yard conductor or yardmaster.” In other words, he treats both as one occupation. ■ It appears to us that this is the fair and reasonable interpretation of the instrument. This view is strengthened from the fact that at that time he was a yard conductor, as he describes himself in his application.

It is undisputed that his cause of death arose from his occupation as yard conductor. It consequently follows that if we are correct in our view as to the proper construction of the instrument, a verdict for the plaintiff should not have been directed.

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

Dwight, P. J., and Lewis, J., concurred.

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