author: Monell, J.

text:
    WILLIAM O. ROOME et al., Plaintiffs and Respondents, v. GRANVILLE NICHOLSON et al., Defendants and Appellants.
    Where, in an action to recover for a cargo of coal sold and delivered, the answer alleged that the purchase was made through a broker, who represented that he was selling it for a person other than the plaintiff—Meld, upon affidavits, that the plaintiff was the owner, and the broker his agent; that the answer should be stricken out as sham. The unauthorized representations of the plaintiff’s agent will not defeat a recovery, even though such representations are believed.
    The test of a sham answer is that it is untrue. It is not necessary that the defendant knew it was not true.
    A defendant need not be adjudged guilty of perjury, to have his answer declared to be false. He may have wrong information, or mistaken views of the law.
    If the defense is shown to be in fact false, it should be stricken out.
    Before Monell, McCunn, and Fithian, JJ.

      [Decided October 30, 1869.]
    This is an appeal from an-order of Mr. Justice Freedman, striking out defendants’ answer as sham.

      Mr. T. W. Wardell for appellants.
    The court will not strike out an answer as sham, unless plaintiffs make a clear case, or where defendants show that their answer is put in in good faith, and support it by affidavit affirming its truth, and showing specially the facts on which they" rely to sustain it (People v. McComber, 18 N. Y., 325; Bailey v. Lane, 13 Abb. Pr. R., 354; Lockwood v. Salhager, 18 Abb. Pr. R.) ; and that slight circumstances indicating good faith will be sufficient to prevent an answer from being stricken out as sham, and the power will be cautiously exercised (Munn v. Barnum, 1 Abb. Pr. R., 281; People v. McComber, 18 N. Y., 325 ; Webb v. Van Zandt, 16 Abb. Pr. R., 190; Manf. Bank v. Hitchcock, 14 How. P. R., 406).

      Mr. W. W. Goodrich for respondents.
    The order to strike out the answer was properly made. The answer constitutes no defence. Even if Packer & Co. owned the coal, the answer set up no claim or cause of action against them to offset the amount due for the coal.
    The plaintiffs support their ownership of the coal by their own affidavit, and by the affidavits of Packer & Bass.
    No action could be maintained by Packer against the defendants, because they would in such an action be estopped by the facts and by their affidavits on this motion.
    The only affidavit used to oppose the motion and to contradict the facts set up in the affidavits of Boome, Packer, and Bass is that of Nicholson, one of the defendants; but, even if that affidavit were true, the facts could not he proven under the defendants’ answer.
   By the Court:

Monell, J.

The affidavits used upon the motion at Special Term establish clearly two facts: First. That the coal in question was the property of the plaintiffs, and was sold by them to the defendants; and, second, that Bass, who made the sale, was the agent of the plaintiffs to make the sale. These facts are not controverted. The most that the defendants claim is that Bass represented to them that the coal belonged to, and he was selling it for, Packer & Son, and that they supposed they purchased it from such latter firm.

The unauthorized representation of the plaintiffs’ agent will not defeat the .plaintiffs’ right to recover. The representation made in this case was not only not within the scope of the agent’s authority, but was in direct hostility to the purpose for which he was appointed. And, however much the defendants may have been misled, they cannot avail themselves of the false representations of the agent to defeat the recovery of the principal (N. Y. Life Ins. Co. v. Beebe, 7 N. Y. R., 364).

No doubt the defendants believed they were making the purchase of Packer & Son.; but when they made their answer they had been informed that the purchase was in fact made of the plaintiffs; and they must, therefore, have known that their answer was untrue, unless they designed or hoped to defeat the action by means of the representations of Bass. As such representations cannot affect the plaintiffs’ rights, and there is no possible doubt, upon the proofs now before the court, that the plaintiffs must succeed, it was correct to strike out the answer as sham. The test of a sham answer is that it is untrue in fact, and it is immaterial whether -the party making the answer knew of its untruth. If the court can see that it is false, it should he stricken out, notwithstanding the defendant may have believed it to be true.

It is not necessary to adjudge a defendant guilty of perjury, or even to impute to him such a crime, in holding his answer to be false. He may have made his allegations in perfectly good faith, believing them to be wholly true, and yet the court, satisfied by proof that such allegations are untrue, must strike the answer from the record.

That is this case; The answer was probably made in the belief that the representatives of Bass would enable the defendants to avail themselves of their set-off against Packer & Son. But they were mistaken; and it was correct, therefore, upon the undisputed proof that the purchase was in fact made of the plaintiffs, to hold the answer to be sham, so as to authorize it to be stricken out.

The order appealed from should be affirmed, with costs.


source: Caselaw Access Project

author: Fithian, J.

license: Public Domain

text:
    HENRY BECKER, Plaintiff and Respondent, v. GERARDUS B. DE FOREST, Defendant and Appellant.
    An agreement to give a lease or to rent is not a lease unless accompanied by actual possession; and unless there be a special covenant to that effect, a lessor is not bound to put his lessee in possession of the demised premises as against a -wrongful holder.
    Before Monell, McCunn, and Fithian, JJ.

      [Decided October 30, 1869.]
    This case was tried before Mr. Justice Jones and a jury.
    In August, 1865, the defendant, De Forest, was the owner and landlord of premises No. 206 West street, which were then occupied by one O’Donnell, as tenant of defendant, under á lease which would expire August 31, 1866. The plaintiff, being desirous of renting the premises upon the expiration of O’Donnell’s lease, paid to the defendant $300, and took from him the following receipt and agreement:

      “ Received, New York, August 8, 1865, of Henry Becker, three hundred dollars, for one quarter’s rent of store corner of West and North Moore, No. 206 West street, to which, when the present tenant’s lease is up, I agree to give a three-years lease to the said Henry Becker in the same manner that my other leases are drawn, to correspond with the present lease when it expires.
    “ G. DE FOREST.”
    Subsequently, on the 1st of September, 1866, the plaintiff demanded of the defendant a lease and possession of the premises pursuant to the foregoing receipt and agreement. This demand was not at once complied with, and the plaintiff did not get a lease until some time after the first of September, and was unable to obtain possession of the premises from the outgoing tenant, O’Donnell, until the 8th day of October, 1866.
    Subsequently the plaintiff brought this action, wherein he alleged that he leased the premises for use as a place for the sale of liquors, and claimed damages for the non-delivery of the lease and failure to give possession of the premises for the time above stated.
    It appeared on the trial that a lease was executed and delivered by defendant to the plaintiff, dated September 1, 1866, of the premises in question, for three years from that date, at the yearly rent of $1,200, payable quarterly in advance. There was a conflict of evidence as to when the lease was delivered, the plaintiff claiming that it was not delivered to him until the fourth day of October, while defendant insisted that the delivery was not later than the sixth day of September. It was not disputed that the plaintiff did not get possession of the premises until October eighth.
    The defendant’s counsel asked to have the complaint dismissed oil the ground that there was no cause of action proved.
    The presiding justice charged the jury that the only question to be submitted to the jury was the time of delivery of the lease from defendant to plaintiff; that the plaintiff was entitled to recover for the number of days between the first day of September, 1866, and the day the lease was delivered to the plaintiff, at the rate of $1,200 per annum, which would amount to $3.28 per day; to which the defendant’s counsel duly excepted.
    The jury found for the plaintiff $134.43, and the defendant appealed.

      Mr. Nelson Smith for appellant.

      Mr. Charles S. Spencer for responden
   By the Court:

Fithian, J.

In the case of Gardner v. Keteltas (3 Hill, 330), the Supreme Court held that, in the absence of an express covenant so to do, a lessor was not bound to put his lessee into the actual possession of the demised premises, as against a wrongful holder thereof. And this because the usual covenant for quiet enjoyment in the lease extends'only to protect the tenant in the enjoyment of the premises against persons lawfully claiming, but not against wrongdoersfor, as to the latter, the right and remedy of the lessee to dispossess such wrongful holder is as perfect and effectual as was that of the lessor before the execution of the lease. Accordingly, if the lessor give to his lessee .a complete and perfect right of possession to the demised premises, he has done all that he is "required to do by law or the terms of his lease, and the tenant assumes the burden of enforcing such right of possession as against all wrongful possessors. Im the case at bar, however, the plaintiff did not obtain such right of possession until the execution. and deliveiy of the lease of the date of September first. The landlord could not have recovered of plaintiff rent under this lease for any period of time previous to its delivery, unless the plaintiff had been in the actual occupation of the premises during such time.

The receipt and agreement of August 8, 1865, was not a lease either present or future. It was an agreement to give a lease only (Jackson v. Delacroix, 2 Wend., 433). It did not clothe the plaintiff with the title to or right of possession of the demised premises, even as against the defendant himself, much'less as to third persons. It was-an executory contract, whereby the plaintiff could compel the execution and delivery of a ' leasé on the day therein named ; but. until the delivery of such lease the plaintiff was without lawful right or remedy tó oust 'the previous tenant, who was wrongfully holding over (Norman v. Wells, 17 Wend., 136). It is true the printed case contains a stipulation signed by. the counsel of the respective parties, whereby it is agreed that under the agreement of August 8, 1865, the plaintiff “was entitled to the possession of the demised premises on the 1st day of September, 1866,” but that is not a stipulation as to any fact in the case. It is at best but an illegal conclusion. If, as is probable, the plaintiff g counsel, by stipulating that his client was “ entitled to the possession,” &c., under the - agreement of August, 1865, intended only to assert in general terms his rights and remedies ill this action growing out of that paper, then the stipulation is consistent with all the other facts and proceedings in the case; but if it be claimed that such stipulation is to have the effect of construing a written instrument, set forth in the case, directly contrary to its language, tenor, and legal effect, the court cannot be bound by any such stipulation. The agreement of August, 1865, is before us, and we must construe it according to its clear language, tenor, and legal effect. The agreement is in evidence. Its language is clear and explicit, and “ needeth not to be interpreted,” and it cannot be permitted that any different or other meaning should be given to it by a stipulation than its language clearly imports.

By this agreement the defendant obligated himself to execute and deliver to the plaintiff on the 1st day of September, 1866, a lease of the premises in question for three years'—such a lease as would enable the plaintiff to obtain and hold the possession of the premises for that period of time against all others. The defendant, although duly requested so to do, refused or neglected to deliver such lease for a number of days. This was a breach of his contract, and for such breach the plaintiff was entitled to recover such actual damage as he had sustained in consequence. He seeks in his complaint to recover for loss of profits which he might have made in the business he proposed to conduct in the premises. But the justice at circuit properly excluded evidence of or right to recover such damages as too remote and contingent. The plaintiff, however, was clearly entitled to recover for the rent he paid for the use of the premises during that time. Had the defendant kept his contract and delivered the lease on the day named in the agreement of August, 1865, then, within the ruling of Gardner v. Keteltas, supra, plaintiff would have had his remedy and been obliged to look to the wrongful hold-over tenant, and could have recovered of him not only the possession, but damages, for the withholding; but without his lease he had no rights in the premises as against the tenant holding over; and defendant, therefore, is clearly liable to respond to the plaintiff for such legal damages as he has sustained in the premises. It is claimed by the defendant’s counsel that the --verdict is for-a larger amount than the evidence will warrant. The rent agreed upon was $300 per quarter, or $1,200 per year, which would be at the rate of $3.28 per day, and the jury were authorized to award to the ^plaintiff that sum per day for as many days as they should find the lease remained undelivered to plaintiff. It'is claimed by the defendant that the jury have awarded damages for a greater number of days than is testified to by any witness." There is a direct conflict of evidence as to what day the lease was actually delivered to plaintiff. The plaintiff swears the lease was not delivered until the 4th day of October. On the contrary, there is evidence—and 1 think a preponderance of evidence—to show that the lease was delivered as early as the 12th of September; but as there is evidence to sustain a verdict for thirty-four days, I do not think the evidence to the contrary is such as will authorize the reversal of the judgment as against evidence.

Judgment affirmed, with posts.


text:
    ROBERT P. PARROTT, Plaintiff, v. THE KNICKERBOCKER ICE COMPANY, Defendants.
    At .tlie common law, as well as by the statute, where a power, authority, or duty is confided to three or more persons or officers, and which may be performed by a majority of such persons or officers, all must meet and confer, unless special provision is otherwise made. The rule of the common law was applied only to persons or officers having a public duty to perform; in matters of a private nature, it required the whole body to be unanimous.
    The cases stated in which the statute has been applied to quasi judicial bodies.

      Whether the statute was intended to apply to judges of courts, quero.
    To make such application would lead to differences of opinion in determining the meaning of the statute, as to what would constitute a meeting of all.
    Upon a motion to set aside a decision made by two judges, the third not having been consulted, and there not having been any meeting appointed, or held, for conference, held, in the doubt of the application of the statute to judges of courts, that the decision should not, for the reason stated, be regarded as irregular. But as the order entered upon the decision was otherwise irregular, it should be set aside, and the appeal left to be decided by the justices who heard it. The propriety of consultations and conferences.in relation to questions which a court is to decide, illustrated and recommended., ■ .
    Before Monell, McCunn, and Fithian, JJ.

      [Decided October 30, 1869.]
    This was a motion made at General Term to set aside an order made at a previous General Term, reversing a judgment entered upon a report of a referee.
    An appeal from the judgment had been argued before a General Term of the Court composed of three of its justices. Subsequently, upon a concurrence of two of the justices, a decision was filed and an order entered reversing the judgment.
    A motion is now made to set aside the order, and for a re-argument of the appeal, founded" on the fact, as stated in the certificate of one of the justices, to the effect, that such decision was rendered without consultation or conference with him, there not having been any meetings appointed or held by the three justices to consult and confer upon the decision.

      Mr. Charles M. Da Costa for motion.

      Mr. Titus B. Eldridge opposed. .
   By the Court:

Monell, J.

It has long been a provision of law (2 R. S., 555, see. 21), that whenever any power, authority, or duty is confided by law to three or more persons, and whenever three or more persons or officers are authorized or required by law to perform any act, such act may be done, and such power, authority, or duty may be exercised and performed, by a majority of such persons or officers, upon a meeting of dll the persons or offieers so intrusted or empowered, unless special provision is otherwise made. This provision is found under the title of “ General Miscellaneous Provisions concerning Suits and Proceedings in Civil Cases.” .

, The language of the statute, it would seem, is sufficiently broad to comprehend all" officers, judicial as well as ministerial. In respect to such persons or officers as it was intended the statute should include, all of them must meet and confer, and the action of a number less than the whole, although a majority, is void.

Before the statute, the rule was stated to be that, where several persons constitute a judicial body, a tribunal appointed by law to act, in matters of public concern, in the decision of controversies and causes, they must all convene and act. Where so convened and acting, a majority may decide, notwithstanding the express dissent of the minority [Ex parte Rogers, 7; Cowen, 526). The rule, however, was confined to officers or persons clothed with authority to perform or discharge a pubUc duty. In cases of private arbitration and matters of a private nature, . it was required that the whole body should be unanimous. The , statute referred to merely enacts the rule thus laid down.

This statute has frequently been applied to quasi judicial officers, and it is uniformly held that all must be present to confer.

In Green v. Miller (6 Johns. R., 39), there was a parol submission to five arbitrators; four only signed the award,'and it was held all must concur.

That decision was before the statute (2 R. S., 542, sec. 7).

In Downing v. Rugar (21 Wend., 178), one overseer of the poor applied for a warrant, and it did not appear there were two overseers, although the statute required two to be elected. Cowen, J., says: “ The rule seems to be well established that in the exercise of a public as well as private authority, whether it be ministerial or judicial, all the persons to whom it is committed must confer and act together, unless there be a provision that a less number may proceed.”

In Crookcr v. Williams (id., 211) four out of fifteen commissioners to receive subscriptions to and make distribution of the capital stock of a railroad company, did not attend the meetings of the commissioners. The court held that the distribution of the stock was a judicial power, vested in all the commissioners, and that where a statute constitutes a board of commissioners, or other officers, to decide any matter, but makes no provision that a majority shall constitute a quorum, all must be present to hear and consult, though a majority may then decide.

An apportionment of a school tax made by two trustees, the third not being consulted, was held to be void (Lee v. Parry, 4 Denio, 125); and in Keeler v. Frost (22 Barb., 400), an assessment of a school tax made by two trustees was carried to the third trustee, who signed it. Yet the court held it to be void, using this strong language: “It is expressly shown that Worden did not meet with the other two trustees when the assessment was made, nor was he notified of their meeting for that purpose. The fact, if admitted, that he signed the warrant, does not relieve the case in any respect. The statute and common law both require the apportionment to be made upon the joint consultation of all the trustees, and not that the warrant shall be signed by all.” The same interpretation of the statute is made in Horton v. Garrison (23 Barb., 176), with this qualification, that if all the officers are notified to meet, and any refuse or negleet to attend, it is the same as if they had attended and dissented from the majority. So, an order laying out a highway, signed by only two commissioners, was held to be void, it not appearing that the third .commissioner met with them, or was notified and. failed to attend (Stewart v. Wallis, 30 Barb., 344).

In all the cases to which I have referred, the officers were merely graasi judicial officers. They were clothed with certain discretionary powers, and could exercise certain judicial functions, but were not what are denominated judges, who have power to make decisions and determinations in causes and controversies between parties. Yet. the principle of the rule of the common law, as well as of the statute, would seem to be applicable to the latter class. The reason which suggested the adoption of the rule and the enactment of the statute, applies with equal force to each class; and parties have quite as much and even more interest in having their controversies settled by the, united wisdom of all the judges before whom their controversies are brought, than individuals have in matters appertaining to the administration of the affairs of towns or counties.

Nevertheless, I have not been able to satisfy myself that the statute referred to was designed to include strictly judicial officers, as distinguished from mere quasi judicial officers to whom certain functions and powers are given, expressly and by name, by statute. The language of the statute referred to, “ whenever three or more persons or officers are authorized,” &c„, would seem to imply that it was intended to confine its effect to persons or officers designated by statute, and who are required by statute to perform certain acts which, although sometimes of a semi-judicial character, are chiefly ministerial.

To apply the statute to strictly judicial officers would inevitably lead to wide differences of opinion in determining the meaning of the statute as to what would constitute a meeting of all the judges who had sat at the hearing of a cause.

This view of the statute was taken in the case of The People ex rel. Hawes v. Walker (23 Barb., 304), where a distinction is drawn between officers or persons, upon whom a public authority is conferred and the members of a court of justice. In that case, three distinct bodies, i. e., the Supervisors of How York, the Judges of the Superior Court, and of the Court of Common Pleas, were constituted by law a commission, with power to appoint a commissioner of jurors; and it was held, in a decision made at Special Term, that after notice to all the members of such bodies," a majority of the whole number constituted a quorum and could act. The learned, justice says : That where a public authority is conferred on individuals (not on a court) who are to act judicially, all must confer together.” * "* * No reason, however, was assigned for excluding courts from the operation of the rule.

The ease of Corning v. Slosson (16 N. Y. R., 294) contains a dictum, which should be constantly remembered by all judicial officers. An appeal had been heard by three justices of the Supreme Court. Subsequently a decision was rendered by a court composed of two of the justices who had heard the appeal, and another judge, who did not hear the argument. The case turned upon the construction of section 2 of 2 R. S., 275, prohibiting any judge from deciding or taking part in a decision of any question which shall have been argued in the court when he was not present and sitting therein as a judge. The Court of Appeals held that the court was properly constituted: that it would presume that the judges who heard the argument had agreed to the decision, and it was proper for the two who sat and who had heard the appeal to render the decision, the other judge, who had not heard the appeal, taking no part in the decision, and sitting merely as one of the three necessary to constitute the court.

But the court uses this significant language : “ It was the duty of the three judges who heard the argument to consult together in relation to the decision of the questions involved in the motion, in order,that each might have the benefit of the views of his brethren to aid him in arriving at a proper conclusion, and doubtless such consultation was had; it is to be presumed that they discharged their duty in that respect.”

The differencé in the constitution of the General Terms of the Supreme Court and of this Court, the former requiring three judges (Cons,, art. 6, sec. 6), and two being sufficient in this Court (Code, sec. 36), does not affect the question. If more than two judges sit, a concurrence of a majority is necessary to a valid decision; and the rule of the common law and of the statute, which requires that all who sat at the hearing shall meet and confer, is alike- applicable to a court- composed of two as of a court of any greater number of judges.

' It cannot, I think, be doubted that the practical effect- of consultations and conferences in relation to questions which a court is called on to decide, is both useful to the court and beneficial to the parties. It must be within the experience of every member of the judiciary, who has occupied a seat for a few 'years upon the bench, that views have been shaken and opinions changed at consultation meetings. A fact which has been overlooked, or not appreciated', may change a, theory or shed new and different light on the case. The investigations of one judge, more diligent than his associates, may discover a leading case or a new statute, the discussion of which may reverse opinions previously formed; and, generally, more enlarged and enlightened views are sure to he obtained and expressed.

In the doubt, however, which we entertain of the application of the statute to judges of courts, we are not prepared to hold that, for the reason assigned in the moving papers, the decision of the appeal by two of the justices who hearcj it, and which was made without consultation with their associates, should be regarded as irregular, or of no effect. But, as the order entered upon such decision, which merely reverses the judgment without ordering a new trial, is irregular, we will set it aside, and will leave the case in the hands of the justices who composed the court when-it was heard, as undecided.


author:
Fithian, J.
      Monell, J.

text:
    WILLIAM K. CLARE, Plaintiff, v. THE NATIONAL CITY BANK OF NEW YORK, Defendants.
    While passing defendants’ premises, plaintiff was injured by a piece of wood falling upon him. Held, there was evidence tending to show the missile fell from the defendants’ premises; and, if so, it was prima facie proof of negligence against defendants.
    Before Monell, McCunn, and Fithian, JJ.

      [Decided October 30, 1869.]
    This case was tried before Mr. Justice Monell and a jury.,
    The action was to recover damages alleged to have been sustained by plaintiff from injuries received through the negligence of the defendants. It is admitted in the pleadings that at the time of the injury complained of the defendants were the owners, and the occupants in part, of the premises known as the westerly part of No. 52 Wall street, in the city of New York, and also that at that time defendants were engaged in causing alterations to be made in and upon the premises. On the trial of the cause it appeared without dispute that the plaintiff was passing on the sidewalk in front of the premises, and was struck upon the head, knocked down, and considerably injured, by a board or plank falling upon him from above. The plaintiff was unable to tell from whence the blow came. Three witnesses were sworn for the plaintiff, in addition to his own testimony. One witness saw a piece of plank six or eight feet long falling and whirling through the air into the crowd of passers-by. Plaintiff was struck, but the witness did not state from whence the plank came. Another witness testified to the condition of the sidewalk at the place in question; that it was cumbered with blocks' of marble and rubbish. Mr. William E. Curtis, however, testified further, that he knew defendants’ premises, and that at the time the front was being substantially rebuilt; that at the time in question, he saw a board “ fall from a window ” in the front of defendants’ building into the crowd passing by, which scattered, and thereupon witness' saw the plaintiff remaining “ prostrate and senseless on the groundand that the plaintiff, when struck, was in front of the middle of the defendants’ portion of the building. Evidence was given as to the extent of the injury, when plaintiff rested. Whereupon, on motion of defendants’ counsel, the court dismissed the complaint, on the ground that there was no evidence to charge the defendants with negligence, and no case made to go to the jury. Plaintiff’s counsel excepted, and requested to have the evidence passed upon by the jury. The exceptions were directed to be heard in the first instance at the General Term. Defendants’ counsel now moves for judgment upon the order dismissing the complaint.

      Mr. Luther R. Marsh for plaintiff.
    Enough was proved to entitle the plaintiff to go to the jury.
    The ownership of the building by the defendants, its occupancy by the defendants, the alterations in the building then being made by the defendants, are all admitted in the answer.
    These alterations -were extensive, the whole front being substantially rebuilt, the sidewalk and street filled with rubbish by the defendants, and the board, doubtless used in the process of making such alterations and repairs, was permitted to come down from one of the windows in the front thus being altered and rebuilt. This established presumptively the connection of the defendants with the board and its fall, and threw upon it the burden of disproving such connection.
    At all events, we had a right to take the judgment of the jury on the question.
    The ruling of the court was a practical denial of all redress to the plaintiff, -and seemed to require that, unless some one was present, with his eyes fixed on the board, and saw the defend-. ants’ agency in its fall, at the precise instant of its fall, the plaintiff could never make out a case that could get to the jury.
    This cannot be the rule.

      It was enough, to prove circumstances from which the jury may infer neglect on the part of the defendants, and such circumstances were proved in this case.
    A verdict of the jury against the defendants upon this proof would never have been set aside as being against the weight of evidence.
    Courts and juries act on circumstances; draw inferences from circumstances; give verdicts and award judgments on circumstantial proof.
    If every fact must be seen by an eye-witness, or heard by an ear-witness, the range of judicial inquiry would be very much restricted (Johnson v. Hudson Riv. R.R. Co., 20 N. Y., 65 ; Hines v. Barton, 25 N. Y., 544; Field v. N. Y. Cent. R.R. Co., 32 N. Y., 339; Wolfkiel v. Sixth Avenue R.R. Co., 38 N. Y., 49 ; Ernst v. Hudson Riv. R.R. Co., 35 N. Y., 10).

      Mr. William H. Arnoux for defendants.
    There was not the slightest proof that the defendants were the owners or occupants of, or that any repairs or alterations were going on in, that part of the building from which the plank fell. There was no proof of human agency in connection with the falling of the plank, nor, if so, that the defendants were liable for the acts of such individual. There was no proof that there were any workmen employed by the defendants in the building at the time of the accident, or, if there were any workmen there, that they had any thing to do with the falling of the plank; or further, if any workmen there had any thing to do with it, that their actions were in the course of their employment as servants of the defendants.
    It is necessary for the plaintiff to establish by evidence, circumstances from which it may be fairly inferred that there is reasonable probability that the accident resulted from the want pf some precaution which the defendants might and ought to have resorted to (Daniel v. Met. Ry. Co., L. R., 3 C. P., 216,222.)

      "Unquestionably no one can be made liable for an act or breach of duty, unless it be chargeable to himself or to his servants in the course of their employment ” (Pickard v. Smith, 10 C. B., N. S., 480).
    The judge rightly refused to submit to the jury the question whether the plank that struck the plaintiff was permitted or caused to fall through the negligence of the defendants.
    There was no proof on the subject at' all; and if there were, the fact that the plaintiff voluntarily placed himself in a recognized danger would exonerate the defendants from all liability'.'
   Fithian, J.

In this case, I think the learned justice at the trial erred in' dismissing the complaint and withholding the case from the jury. In making alterations and repairs upon their building, the defendants were required to take all proper and needful care and precaution to prevent passers-by, on the sidewalk in front, from being injured by any object falling from defendants’ premises. If, with ordinary care and precaution, defendants could not prevent objects falling, it was their duty then to barricade the sidewalk and prevent persons passing in dangerous proximity. If the board or plank which struck plaintiff did in fact fall from the defendants’ premises, I am of opinion that, within the principle of the decisions cited by plaintiff’s counsel, such fact established, 'prima facie, a want of that proper and needful care which the defendants, for themselves and servants, were bound to take and observe in the premises (Lynch v. Burdin, 41 En. G. L. R., 422 Johnson v. Hudson R. R.R., 20 N. Y. R., 65 ; Hines v. Barton, 25 N. Y. R., 544; Field v. N. Y. Central R.R. Co., 32 N. Y., 339 ; Wolfkiel v. Sixth avenue R.R. Co., 38 N. Y. R., 49; Pigott v. Eastern Co. Ry. Co., 3 Maning G. & Scott, 229; Ellis v. Portsmouth and Roanoke R.R. Co., 2 Iredell, 138). That verdicts of juries are sustained, which are founded upon facts established by inference from other facts and circumstances proved, is the constant' experience of the courts. In this case, I think the jury would have been justified, and their verdict not against evidence, had they found (if permitted) that the plank causing the injury to plaintiff fell from the premises of defendants. And such finding would be sufficient, within the above-cited authorities, prima facie, to charge the defendants with negligence.

In the case of Norris v. Kohler, recently decided by this court, there was seemingly less evidence to charge the defendant with negligence than in the case under consideration. In that case the plaintiff was injured in the street by a horse running and having attached a wagon used for vending pies. The proof was that, immediately preceding the injury, the horse and wagon were in the custody of two young men (not parties to the suit), and being used for distributing bakers’ supplies about the city. The horse and wagon was stopped in front of the building of a dealer in such articles. One of the men in charge of the vehicle stepped inside; and in a minute after, the horse, with wagon attached and unattended, was seen running furiously along the street, one of the men before in charge following after. There was proof that the horse and wagon belonged to the defendant; but there was no proof that the men in charge, or either of them, were the servants of or in the employ of the defendant, or that the property was engaged in any business of the defendant. The plaintiff was nonsuited at the trial, on the ground that the proof failed to charge defendant with negligence in the premises. That decision was affirmed by the General Term of this Court. An appeal was taken to the Court of Appeals, and there the decision of this court was reversed and a new trial ordered. I have not seen the opinion in that case (if any was delivered), but 1 infer the Court of Appeals must have adopted the principle that, where an injury is caused by the negligence of some' person unknown, and such injury is inflicted through thé instrumentality of property owned by a defendant, such ownership alone is sufficient, prima facie, to charge such owner yith negligence in the premises. This is going much farther than is necessary to sustain a verdict for the plaintiff in the case at bar.

The order dismissing the complaint should be reversed, defendants’ motion for judgment denied, and a new trial ordered, costs to abide the event.

Monell, J.

(concurring). In concurring in the opinion that the exceptions should he sustained and the case sent back for a new trial, it is proper for me to state that the testimony of the witness William E. Curtis, which - now appears in the printed case, was not talcen at or introduced upon the trial. By stipulation between the attorneys of the respective parties, it was supplied after the trial, and inserted in the case by consent. Of course it did not come to my notice on the trial. The court is unanimous that without such testimony there was nothing to go to the jury, and it was therefore correct to dismiss the complaint.

The testimony of Hr. Curtis, however, which now forms a part of the case, is deemed by all of us to be sufficient to make out a prima facie case against the defendants.


author: Monell, J. Fithian, J.

text:
    HONORA BARRETT, Administratrix of John Barrett, deceased, Plaintiff and Appellant, v. THE SINGER MANUFACTURING COMPANY, Defendants and Respondents.
    Where an elevator, owned by the defendants, was, at the time of the injury to the plaintiff, being operated by a contractor of the defendants, and it not appearing that the defendants had any control over the apparatus, but merely gave the use of it to the contractor, and supplied the requisite power—lleld¡ defendants were not liable for the injury, even though the injury was caused by the insufficiency or insecurity of the apparatus.
    This is different from the cases where a master is held to be liable for an injury to his servant. In those cases the liability rests upon the relations of master and servant, and where the latter is under the control and bound to obey the orders Of the formo** Per Monell, J,
    Before Monell, McCunn, and Fithian, JJ.

      [Decided October 30, 1869.]
    This, case was tried before Mr. Justice Freedman and a jury
    The action was to recover damages sustained in consequence of the death of plaintiff’s husband, through the alleged negligence of defendants. The defendants are a corporation, and own a factory building in Delancey street, in the city of New York, and were and are engaged in the business of manufacturing and selling sewing-machines. On the trial it appeared, on the part of the plaintiff, that one Tucker was employed to do mason-work in and about the defendants’ factory building, some or all of which was in the upper part of the building, and for that purpose Tucker had in his employment several persons, one of whom was Barrett, the deceased. There was a hoisting apparatus or elevator in the building, operated by steam-power from a steam-engine owned by the defendants, and managed by an engineer in their employment, in the lower part of the building, and which was used by Tucker and his employes in hoisting material for the mason-work. On the 4th of May, 1868, the deceased was upon the elevator with two harrow-loads of brick, being hoisted to the top floor of the building; the hoisting rppe broke, in consequence of a defect in the drum on that part of the hoisting apparatus over which the rope passed. The elevator, with Barrett thereupon, was precipitated to the bottom of the building, and he so injured as to cause his death. At the close of plaintiff’s testimony, the court, on motion of defendants’ counsel, dismissed the complaint, on the ground that there was no case made to go to the jury, to which ruling and decision plaintiff’s counsel excepted, and from the judgment entered thereon plaintiff’s counsel appealed.

      Mr. B. Wright for appellant.
    The idea oí privity of contract in this case was error. It is not required where the cause, of action is for an injury received through the negligence of another. In a suit founded upon contract, and for a breach thereof, privity is essential, but not where the basis of the suit is in tort and for negligence. The law implies the same duty to use competent care and skill, and to be liable for the neglect of it, whether that, dnty is towards a public or a private individual, where human life is at stake. It made no difference, if the defendants gratuitously undertook to furnish and perform what they were under no legal obligation to do, viz., to elevate and lower the contractors’ workmen a*nd materials. They assumed to do both, and the contractor allowed them so to act, implying and assuming that they would use all due care in the preservation of human life, and that they would not introduce him to a defective machine, or one .improperly erected. The mechanic felt equally safe, and was legally warranted in so assuming. The situation of the defendants was one to imply skill and confidence, and to inspire confidence and safety (2 Seld., 410 ; 15 N. Y., 448 ; 1 Hilton, 436).
    Mr. R. T. B. Easton, for respondents.
    The plaintiff has failed to prove that the elevator was kept, maintained, and operated by the defendants, or that it was kept, maintained, and operated for raising up and lowering down men and'persons, or that the deceased was in the employ of the defendants, or of their servants, agents, or employes, orthathe entered the elevator in obedience to instructions and to perform the labor allotted to him, or that there was any neglect on the part of the defendants with reference to the elevator.
   By the Court:

Monell, J.

There was some, evidence in this case, sufficient, I think, to have gone to the jury, that the elevator which fell with the deceased was constructed wholly or in part by the defendants. The contractor testified that he put the platform together, but the drum, which was the cause of its falling, had been constructed by the defendants. 'There was also some evidence of the insufficiency or insecurity of this apparatus, sufficient, perhaps, to charge the defendants with negligence, if they occupied such a relation to the deceased as, upon principles applicable to the case, would otherwise render them liable.

The elevator was, however, in the possession of, and, at the' time of the accident, being. operated by and for the defendants’ contractor, and the deceased was in his employment, and, there-, fore, his servant. It did not appear that the defendants had any control over the apparatus, or were in any manner connected with its operation. They merely gave the use of it to the contractor, and supplied the requisite power.

This is a case quite different, therefore, from the qlass of cases where a master is held liable for an injury to his servant caused by his negligence, or by defective or unsuitable machinery, which ' the servant, in the course of his employment, is required to use. In those cases, the liability rests solely upon the relation of master and 'servant, and the employer is bound to exercise all ordinary care, and the servant has a right to rely upon such care. The rule is, that a servant is under the control and is bound to obey the. orders and directions of his master; and where a servant, who has not the same means of knowledge of the safety of machinery as his employer, is injured by some defect in it, which was known to the master, or which he had negligently failed to ascertain, and therefore ought to have known, the liability of the master is, in such a case, founded upon the same principle (Ryan v. Fowler, 24 N. Y. R., 410 ; Loonan v. Brockway, 3 Robt., 74).

But where the relation of master and servant does not exist between the party charged with negligence and the injured person, the principle which underlies the liability of the" master does not apply. In this case no such relation existed between the defendants and the deceased. The work in which he was engaged was being done under a contract between the defendants' and one Tucker, in serving whom the deceased was killed. He was the servant of the contractor, and the rule of respondeat superior has no application (Blake v. Ferris, 5 N. Y. R., 48). . ,

Nor was this a case falling within the principle which holds a party liable for an injury sustained by any one without fault, xvhich was the probable consequence of his own negligence, when such negligence was imminently dangerous to life (Thomas v. Winchester, 6 N. Y., 397; Smith v. N. Y. & Harlem R.R. Co., 19 id., 127).

For these reasons I am of the opinion that no cause of action against the defendants was shown, and the complaint was, therefore, properly dismissed.. "

I am in favor of affirming the judgment.

Fithian, J.

(concurring). I am unable to discover any evidence in this ease tending to charge the defendants with any negligence causing or 'contributing to the injury for xvhich the action is ’ brought. The injury was caused from negligent and defective construction of an elevator or hoisting apparatus in defendants’ building. _ The proof, upon plaintiff’s own shoxving, is conclusive that this elevator or hoisting apparatus was not constructed, operated, or in any manner used or controlled by the defendants. The defendants, as is conceded, were engaged in the business of manufacturing sewing-machines in this factory in question, and for that purpose, or some other purpose, had and used in their building a steam-engine for steam power.” Desiring to have some necessary work done in their building, defendants employed the witness Tucker, a mason and builder ” (fol. 25), to do this work under his own directions, and by men employed by him; and it became necessary that material for this work should be elevated to the upper part of the building. Tucker purposed to construct an elevator for that purpose, and defendants’ officers gave him permission to use steam-power from the defendants’ engine for hoisting, and any suitable materials of defendants which he could find about the building, for the construction of such elevator. Availing himself of this permission, Tuclcer did construct the elevator in question, cut holes in the floor through which it was to work, attached it to defendants’ engine so as to get “ power,” and managed and operated it entirely under his own supervision and that of his employes. True, he consulted with-Van Dyke, defendants’ superintendent of alterations, and got some suggestions from him as to how the elevator should be made. But that does not make it defendants’ job. There was no evidence to show that constructing an elevator was any part of the “ alterations” which Van Dyke was employed to superin tend. The proof is the reverse. Upon these facts I know of no principle of law upon which the defendants can be held responsible for any injury caused by negligence in the construction or operation of that elevator while thus in the management of a third person. The facts do not bring the case within the authority of the case of Cook v. President of the New York Dry-dock Company (1 Hilton, 436), or the other authorities cited by appellant’s counsel. The judgment should be affirmed,'with costs.


text:
    JOHN H. TALLMAN, Plaintiff and Respondent, v. MARTIN R. COOK, impleaded, &c., Defendant and Appellant.
    A motion to stay proceedings in an action to foreclose a mortgage on the ground of an equitable defence, is addressed to the discretion of the court. It will not, in gen - eral, be granted, where such equitable defence is set up in the answer, and forms the only issue.
    Where a mortgage contained a clause that, if the interest remained unpaid for thirty days, the whole principal should become due, at the option of the mortgagee ; and the defendant, by answer, set forth reasons for not paying the interest, which might relieve the forfeiture—Held^ not error to deny a motion for a stay.
    Whether the order denying the motion is appealable, quere. Per Monell, J.
    Before Monell, McCunn, and Fithian, JJ.

      [Decided October 30, 1869.]
    Appeal from an order made at Special Term by Mr. Justice Jones, denying a motion to stay the proceedings in the action.
    The action was to foreclose a mortgage made by Jacob B. Tallman, one of the defendants, to John P. Hays, and assigned to the plaintiff. The principal secured was not due; but the mortgage contained a clause by which it was agreed that, if the interest should- remain unpaid for thirty days after it had. become due, the whole of the principal should, at the option of the mortgagee, become immediately payable. The premises had been conveyed to the defendant Cook, subject to the mortgage.
    The complaint alleged non-payment of the interest, and the lapse of thirty days after it. had become due, and the plaintiff elected to have the whole principal to be due and payable.
    The answer of the defendant Cook alleged that, when he purchased the premises, Hays had not assigned the mortgage, and that it was his invariable custom to call at the defendants’ place of business, and collect the interest; that such custom continued to the time of the assignment to the plaintiff, in May, 1869, and that no notice of the assignment was given to the defendant. The defendant averred readiness to pay the interest, and alleged his reliance upon the above-mentioned custom as a reason for not paying the interest within the thirty days.
    Upon these facts, the defendant Coolc moved, at Special Term, for a perpetual stay of proceedings in the action, upon payment of the interest due.
    The motion was denied, and the defendant appealed.

      Mr. James C. Carter for appellant.

      Mr. James M. Smith for respondent.
   By the Court:

Monell, J.

The ground upon which the motion in this case was founded is set up in the answer, and forms the only issue to be tried in the action.

Without, therefore, determining whether such ground is sufficient to relieve the mortgagor and his assigns from the consequences of the omission to pay the interest within the stipulated time; and also without denying the power of the court upon a motion in a suitable case to restrain' thé prosecuting of a foreclosure, we are yet of the opinion that the learned justice decided correctly at Special Term, in leaving the question of the sufficiency of the ground for equitable relief in this case to be determined at the trial.

The application of the principles of equity are largely, if not wholly, in the discretion of the court; and in the exercise of such discretion, appellate courts, as a general rule, will not interfere ; and it may very well be doubted whether an order made upon a motion at Special Term, refusing equitable relief, is even appealable. It may be otherwise, where relief is granted and such relief, in effect, determines the action.

But as the defendant in this case is merely sent from one branch of the court to another branch, to obtain the same relief, he can have but small cause to complain.

The order should be affirmed, with costs.


text:
    HENRY H. SMITH and Another, Plaintiffs and Respondents, v. PHILIP SMITH, Defendant and Appellant.
    An appeal from a ¡judgment presents only questions of law. Questions of fact cannot be reviewed, except upon an appeal from an order at Special Term, denying a motion for a new trial on a case.
    A broker employed to sell real property has earned his commission when he has procured a purchaser able and willing to purchase on the stipulated terms.
    Before Monell, McCunn, and Fithian, JJ.

      [Decided October 30, 1869.]
    This case was tried before Mr. Justice Jones and a jury.
    The action was brought to recover commissions on the sale of certain real estate belonging to the defendant. The defendant denied in his answer that the plaintiffs procured him a purchaser for the property.
    The jury found a verdict for the full amount claimed and the defendant appealed.
    A motion was made for a new trial on the judge’s minutes and denied, but no appeal was taken from the order denying said motion.

      Mr. E. D. Culver for appellant.
    Where the employer fixes a price, the broker is not .entitled to commissions unless he obtains a purchaser at that price (Jacob v. Kolff, 2 Hilt., 133).
    A variation from the terms of contract does not bind the vendor (Davis v. Shields, 26 Wend., 341).
    “ There is no contract unless the parties thereto assent; to the same thing in the same sense“ the obligation must, in general, be mutual”'(l Parsons on Contracts, 399).

      The plaintiffs did not produce a purchaser who was satisfactory to the owner, and who contracted to purchase on the owner’s terras, viz., §6,500 per lot.
    A broker is only entitled to commissions when he produces a party who contracts to buy upon the owner’s terms (Glentworth v. Luther, 21 Barb., 145).
    A broker is not entitled to commissions until he obtains a contract upon the terms which he is authorized to grant (Barnes v. Roberts, 5 Bosw., 73).
    The contract of the plaintiffs was to produce a purchaser at $6,500 per lot. He produced a pretended purchaser for $6,000 per lot.
    The court erred in refusing to charge that, unless the purchaser and seller agree upon the terms of sale, the broker was not entitled to commissions.

      Mr. David McAdam for respondents.
    The motion to dismiss the complaint was properly denied.
    The plaintiffs found a person willing to buy on the owner’s terms; this is all they contracted to do, or possibly could do, and thereupon earned their brokerage; and the refusal of the owner to make the contract of sale cannot deprive the broker of his brokerage or affect his right to recover it (Barnard v. Mannot, Court of Appeals, 33 How., 440).
    The motion to dismiss on the close of the case was also properly denied, and the question of procuring cause properly left to the jury; it was for them to decide that question from the evidence. They found for the plaintiffs, and their finding cannot be reviewed on this appeal (Redfield v. Tegg, 38 Transcript Appeals, p. 320).
    It was conceded that McBride was willing to "buy on the ownner’s terms, and the only question was, who procured him; and the Court had already charged the jury fully on that subject, and on all matters bearing on the issue.
   By the Court:

Monell, J.

This is an appeal from a judgment, and presents only questions of law. No appeal seems to have been taken from the order denying the motion for a new trial, which appears to have _been made upon the judge’s mimdps. Therefore, the questions of fact are not before us for examination, even if it were necessary to see if the evidence was sufficient to sustain the verdict. The whole of this controversy seems to have been whether the plaintiffs, or one Leman, another broker, were entitled to the commissions for procuring a purchaser for the defendant’s lots. There was no substantial dispute that McBride was procured to make the purchase, or that he agreed to purchase; that the price was agreed upon and that the defendant consented to the price. Nor was there, nor could there have been, any doubt that enough was done to entitle the' broker who had procured McBride, and brought about the agreement on his part to purchase, to his commission. Indeed, the only doubt then was in the case, and the defendant himself put his defence on that ground, was whether McBride had been procured by Leman or the plaintiffs. And the evidence did not furnish much aid in elucidating the question.

Such being the matter in dispute, and enough having been shown to entitled the broker to his commissions (Barnard v. Monnot, 3 Keyes, 203), there was no reason for dismissing the complaint on the ground that no contract in relation to the terms of sale had been made, and that motion was properly overruled.

The plaintiffs were employed by the defendant to sell the lots. A purchaser was obtained by the plaintiffs, or by Leman. The defendant acceded to the price offered. Thus all was done to entitle the broker who had procured the purchaser to his commissions. This view also disposes of the second request to charge, “that unless the purchaser and seller agree upon the terms of the sale, the broker is not entitled to commissions,” as the evidence was uniform that the terms of sale were agreed upon, and the only reason for not carrying it into complete execution was the doubt in the defendant’s mind that Leman was the primary procuring cause, and the fear that he might have to pay commissions to him.

The motion to dismiss - the complaint on the ground that the plaintiffs were not the procuring cause of the sale, and also the request to charge that if either of the brokers named was entitled to commission it was Leman, were correctly disposed of. The only question in the case was, who was the procuring cause in obtaining a purchaser; and upon the evidence in the case that was a proper question for the jury.

The evidence was somewhat conflicting, but we are not at liberty to disturb the verdict. The case was given to the jury under a very careful charge, and they, it seems, were satisfied that the weight of the evidence was with the plaintiffs.

Leman, who was examined as a witness, was not asked a single question by the defendant in relation to the matter, and that omission was doubtless regarded by the jury as significant of weakness in the defence.

The judgment should be affirmed.


text:
    DAVID R. DE WOLF, Plaintiff and Respondent, v. EBENEZER V. CRANDALL et al., Defendants and Appellants.
    Where the language of a contract is so uncertain, or the subject-matter to'which it ia intended to apply is so doubtful, that the true, intent -and meaning of the instrument cannot be satisfactorily ascertained from the contract itself, parol evidence is admissible to explain.
    On a question of fact, where there is evidence tending to sustain the cause of action or defence, the case should be submitted to the jury.
    A new trial granted for error in the judge in excluding competent evidence, and in taking case from the jury which should have been submitted to them.
    Before Monell, McCunn, and Fithian, JJ.

      [Decided October 30, 1869.]
    This case was tried before Mr. Justice McCunn and a jury.
    The action was brought to recover two instalments of money agreed to be paid by the defendants to the plaintiff, by virtue of the written contract following. The instalments claimed became due December 31, 1867, and January 1, 1868. The contract sued on was set forth in the complaint, and admitted by the answer, and is as follows :
    6 This memorandum of agreement, made and entered into this 23d day of March, in the year of our Lord 1867, by and between David R. De Wolf, of the City of New York, in the United States of America, merchant, party of the first part, and Ebenezer V. Crandall, George Umphray, and Henry V. Crandall, all of the City of New York aforesaid, merchants, of the second part, witnesseth that the said parties hereto of the first part and second part, for and in consideration of the sum of one dollar by each party paid to the other party, the receipt whereof is hereby mutually acknowledged, do covenant and agree as follows: the party of the first part does for himself, his heirs, executors, administrators, and assigns, covenant and agree to sell, relinquish, transfer, and deliver to the party of the second part the good-will and interest of the business now being conducted and carried on at No. 103 Broad street, in the City of New York, under the name, style, and firm of D. R. De Wolf & Co., as a shipping and commission business (the co-partnership now existing is to terminate and be dissolved by the 1st day of May next), together with the lease of the office now occupied at No. 103 Broad street, which has three years yet to run from the 1st day of May next, at an annual rent of nine hundred dollars, which rent is to be paid by the parties of the second part; all the office furniture now in the office, excepting the safe, one desk, one chair in the private or inner office, all the books, papers, stationery, and any and all articles of a private nature which have not been mentioned belonging either to the party of the first part or to any other person; the inner or private office is to be retained and occupied by the party of the first part, with the furniture now in it, free from any rent or charge whatever, the use of which is his during the term of the lease ; also the business of the vessels when in this port, in which the party of the first part now at the present time owns a share, or which he may be able or can control, except the making of charters or procuring of freights for the same (in which case the commissions are to be divided), or effecting insurance on either the vessels or their freights, or buying any articles for them. It is understood that the direction and control of the vessels are not hereby given up, neither any restraint from selling and disposing of the same in any way. The sale and delivery of the business to take place oil and after the 1st day of May next ensuing, and all business of any nature which may have been commenced prior to the 1st day of May, or any vessels which may have arrived up to the 1st day of May, shall be considered the business of the party of the first part, and shall be continued and finished by the present firm. The said party of the first part agrees that from and after the 1st day of May next he will not start, commence, or do any business of the same nature or kind in the City of New York during the term of five years next ensuing, commencing from the first day of May next. This is not to be understood as debarring him from buying and selling’ to any extent, nor from acting as broker in merchandise, ship, or commercial broker (except buying for and shipping to any of the customers of the present firm), insurance broker, or chartering vessels for others or on his own account, or making advances on or for vessels, or for any person, or furnishing new, vessels with outfits, &c.
    “And the said parties of the second part, for themselves, their heirs, executors, administrators, and assigns, hereby covenant and agree jointly and severally with the said party of the first part, upon the delivery and relinquishment of the business aforesaid, to pay to the said party of the first part the sum of twenty thousand dollars in good and lawful money of the United States of' America, the payment to be made as follows, viz.: two thousand dollars in cash on the 1st day of May, three thousand dollars on ' or before the 31st day of December next ensuing, and seven hundred and fifty dollars on the first day of each quarter of the year, commencing on the 1st day of January, 1868, and so com tinning on the first day of each quarter until the whole amount of twenty thousand dollars shall have been paid, making tl)e last payment due and payable on the first day of October, 1872.
    “And the said party hereto of the first part binds himself to the parties hereto of the second part, and the said several parties of the second part bind themselves to the said party of the first part, in the penal sum of twenty thousand dollars for the faithful performance of this agreement.
    “ It is understood and agreed that the parties of the second part shall not sell nor dispose of nor make any change in the business without first offering it to the party of the first part.

      “In witness whereof, the said parties have hereunto their hands and seals subscribed and set the day and year first above written.
    [l. s.] DAVID B. DE WOLF,
    [l. s.] EBENEZEB V. CRANDALL,
    [L. S.] GEO. UMPHRAY,
    [L. S.] H. V. CRANDALL.”

      The answer set up two defenses : First, that the plaintiff had not performed or kept the covenants in the agreement on his part to be performed and kept, and could not, therefore, maintain any action for a breach of defendants’ covenants; and second, a separate defenes by way of counterclaim, alleging a breach of various covenants on the part of the plaintiff, and counterclaiming damages therefor, as follows :
    The defendants, for a further and separate answer and counterclaim to the complaint, allege that, in violation of the contract or agreement in the complaint set forth, the plaintiff has, since the 1st day of May, 1867, done and carried on, in the city of ¡New York, business of the same nature and kind as that in the said agreement sold and agreed to be relinquished and delivered to the defendants, and has done the business of the vessels in which the plaintiff was part owner when in this port, and of vessels which he could control, besides the making charters and procuring freights for the same, and effecting insurance on vessels and freight and buying articles for them, and has bought and sold merchandise for and to the customers of the said late firm of D. R De Wolf & Co., and other persons, in violation of his said agreement.
    That by reason of the premises the defendants have sustained injury and damage to the amount of ten thousand dollars, or thereabout, which the defendants claim to recover against the plaintiff in the action.
    Wherefore the defendants demand judgment against the said plaintiff for the amount of their damages aforesaid, with costs of defending this action.
    The plaintiff replied, denying the counterclaim.
    The plaintiff proved the transfer and delivery to defendants of the office, business, and place of business, furniture, &c., to defendants at the time specified in the contract; that defendants took possession and entered upon the prosecution of the business specified in the contract, paid the first instalment therein provided for, and have continued in the business ever since, but have refused, after demand made, to pay any subsequent instalment.

      The defendants gave evidence to show that the plaintiff had violated his covenant not “ for five years to start, commence, or do any business of a similar kind in the city of New York;" in this, that plaintiff had, against defendants’ objection, continued at the same place to do a general “shipping and commission business,” in all respects as he had done before the execution and delivery of the agreement. Also, that plaintiff had persisted, in disregard of defendants’ remonstrance, in doing the general business as well of “ vessels ” in which he “ owned a share,” as those which he “ could and did control;" all of which business he had expressly and specifically sold to the defendants. Also, evidence tending to show that plaintiff had “bought for custom ers of defendants’ firm,” and did all the general business of ships whose owners had been customers of the old and continued to be customers of the new firm. Also, that plaintiff had endeavored to and had dissuaded persons, who had been customers of the old firm, from continuing with the new firm of defendants, and had successfully diverted such business to himself.
    On the trial the defendants’ counsel offered to prove the meaning of the words “ shipping and commission business,” which was excluded by the court,'under'defendants’objection-. The court likewise excluded evidence offered by defendants’ counsel to show that the persons for whom plaintiff had transacted “ shipping business,” viz., selling bills of exchange for money to pay for supplies, were customers of the old firm. To this there was an exception. Defendant also gave evidence to show the damages sustained by them in consequence of such allóged violation of the agreement on the part of plaintiff.
    At the close of the testimony defendants’ counsel, among other things, demanded permission to ■ submit to the jury the evidence as to his counterclaim, insisting there was evidence upon which the jury would be authorized to find damages, by' way of counterclaim, in defendants’ favor. The justice excluded the evidence from the jury, and directed a verdict for plaintiff for the full amount claimed, less a single item of four dollars and seventy-five cents; to all which defendants’ counsel excepted. From the judgment entered on the verdict defendants appealed.

      Mr. E. C. Benedict for appellants.
    The court erred in holding that the clause in the agreement “ stipulating that the plaintiff should not engage in the shipping business for five years,” was qualified by the clause which provided that he should not engage in that business with any of the customers of the firm of D. R. De Wolf & Co.
    The plaintiff sold to the defendants his “ interest of the business now being carried on at No. 103 Broad street, New York, under the name, style, and firm of D. R. De Wolf & Co., as a shipping and commission business,” and he covenanted that he would not “ start, commence, or do any business of the same nature or hind in the city of New York for five years, but this was not to be understood as debarring him from doing business as a merchandise, ship, commercial, or insurance broker (except buying for and shipping to any of the customers of the present firm), or chartering vessels for others on his own account, or making advances for vessels or for any person, or furnishing vessels with outfit.”
    This the court held to be an exception, including every kind and description of business done by the old firm, and that it only prohibited the plaintiff from doing a shipping business with the customers of the old firm.
    The court erred in refusing to dismiss the complaint after the plaintiff had rested.
    By the terms of the agreement, the plaintiff had agreed not to carry on any business of the same nature or kind as a shipping and commission business, in the city of New York, for five years.
    It appeared in evidence by the sworn admission of the plaintiff that “ he has been and still is engaged in business as a shipping and commission merchant” ever since the malting of the agreement. This is a violation of his contract.

      A shipping and commission business is not what is reserved. Moreover, the court had no right to assume that the business done was within the limits of the reservation.
    The party relying upon an exception or reservation must always prove himself within it. The presumption is against, him antecedent to proof (1 Duer on Ins., 161; Breasted v. The Farmers’ Loan & Trust Co., 6 N. Y., 405 ; Hoffman v. The Etna Ins. Co., 32 N. Y., 405).
    The .court erred' in refusing to allow the defendants to show that the parties for whom this business was transacted were customers of D. R. De Wolf & Co., also in refusing to allow proof of the meaning of “ shipping and commission business.”
    The court below held that the agreement only prohibited the plaintiff from engaging in the business of the old firm with any of its former customers.
    Under this construction it was the right of the defendants to show that the parties for whom this business was transacted were customers of the late firm.
    The court erred in refusing- to submit the ease to the jury to decide upon the question whether the plaintiff had violated his part of the contract.
    If the court should hold that our claim for the violation is a recoupment, we were entitled to the verdict of the jury upon fhe amount of damages.

      Mr. Erastus Cooke for respondent.
    After the agreement went into effect, the plaintiff carried on no business, nor did he do any act which did not come within the reservation clauses in the agreement.
    After delivery of the business, office, and furniture, on the first d'ay of May, 1867, the covenants were, from the nature of the case, independent, and each can be enforced without any regard to the others.
    The plaintiff never bound himself not to sell bills of exchange, consequently the judge was right in ruling out the transactions with Irving & Co.

      There is no act relied on by the defendants as a violation of the contract, until after the delivery of the business to the defendants, and after they had entered into the enjoyment of it, under the contract.
    If, then, the plaintiff broke his covenants, he may be liable for the breach, but it can form no defence to an action on an independent covenant.
    When a person has received part of the consideration for which he entered into the agreement, it would be unjust that, because he has not had the whole, he should therefore be permitted to enjoy that part without either paying or doing any thing for it, and therefore the lem obliges him to perform the agreement on his part, a/nd leaves him to his remedy to recover damages for not receiving the whole consideration (Peffee v. Haight, 20 Barb., 430, 440; Tompkins v. Elliott, 5 Wend. 498).
   By the Court:

Fithian, J.

The covenants contained in the agreement in this case are mostly independent. The only covenant or thing, the performance of which on the part of the plaintiff can be construed into a condition precedent to his right to demand the money agreed to be paid by defendants, is the delivery of the books of the old firm, with the possession of the office and furniture, and transfer of the lease. This the plaintiff did, so far forth, at least, that it was accepted by defendants as a sufficient “delivery and relinquishment of the business aforesaid,” to induce defendants to enter upon the performance 'of the contract on their part, by paying the first instalment or down payment and entering upon the business. The lease, it appears, was a verbal one, and could be transferred without writing. The delivery of the written agreement was doubtless a sufficient transfer to defendants of such verbal lease as against the plaintiff, especially when accompanied with a delivery of the possession of the demised premises. The other covenants on both sides were executory and continuing, relating to subsequent business and subsequent acts to be done and forborne. They were in their nature independent of each other, and neither could be a condition precedent to the performance of the other. The defendants having thus elected to enter upon the performance of this agreement on their part, could not be permitted thereafter to rescind the contract by reason of any failure on the part of plaintiff to perform any independent agreement in the contract contained and on his part to be performed. For any such breach, defendants have their action at law for damages (Day v. N. Y. C. R.R. Co., 53 Barb. R., 250). The defendants cannot, therefore, set up as a flat hcor to this action any non performance, by the plaintiff, of all or any of the independent covenants ón his part to be performed. In that regard the ruling of the learned justice on the trial was correct.

: The defendants may, however, under the Code, allege and prove, by way of defence, and for a counterclaim (which is in the nature of a cross-action), the neglect or refusal of the plaintiff to perform any or all the covenants by him agreed to be performed and kept, and may offset such damages as they can prox^e resulting from such breach, against the plaintiff’s demand in the action, so as to defeat plaintiff’s recovery altogether, if the damages shown be sufficient toYalan.ce the amount of - plaintiff’s demand proved on Iris part. This defence the defendants have alleged and attempted to prove. And, in my opinion, the proof was of a character which should have been submitted to the jury, under proper instructions from the court. The agreement is very loosely and inartificially drawn. There arc exceptions, reservations, and explanations. Different words, not-precisely equivalent in their meaning, are used in different parts of the instrument, in respect to the same subject-matter, while in two or more instances" general words are used, which, in their broadest and largest sig-' nifieation, would include matters entirely beyond the scope and-purview of the contract, thus showing an intent to use suchxvords in some technical or restricted sense.

It is not surprising then, but quité probable,-that in the hurry of a trial, without time to hear argument or carefully examine, a judge should err in the construction of so uncertain an instrument. Indeed, there are certain provisions of the contract which seem to me incapable of a satisfactory interpretation without parol evidence in explanation.

The first covenant on the part of the plaintiff is “ to sell, relinquish, transfer, and deliver to defendants the good-will and interest of the business now being carried on at No. 103 Broad street, under the name, style, and firm of D. R. De Wolf & Co., as a shipping and commission business,” together with a lease of the office, furniture, books, papers, stationery, &c. “Also, the business of the vessels when in this port, in which the party of the first part now at the present time owns a share, in which he may be able or can control ” (excepting, &c.). Then follows this provision: “ The said party of the first part (plaintiff) agrees that from and after the 1st day of May next, he will not start, commence, or do any business of the same nature or hind, in the city of New York, during the term of five years next ensuing, commencing from the first day of May next. This is not to be understood as debarring him (plaintiff) from buying and selling, to any extent, nor from acting as broker in merchandise, ship or commercial broker (except buying for and shipping to any of the customers of the present firm), insurance broker, or chartering vessels for others, or on his own account, or making advances on or for vessels or for any person, or furnishing new vessels with outfits,” &c.

The first step in construing or interpreting the foregoing provisions is to determine in some way what particular business transactions (if any) the plaintiff had covenanted to abstain from “starting,” “commencing,” or “doing,” and whether there was any thing pertaining to a “ shipping and commission business,” or “business of the same nature or hind” other or different, or not included in those particular business transactions, which it was stipulated the plaintiff should not be “ debarred” from doing. In order to determine these questions with any degree of certainty, it is necessary to ascertain, either from the contract itself or evidence outside, the precise character, nature, and extent of the business which was “ then (now) being conducted and carried on at No. 103 Broad street, under the name, &c., of D. R. De Wolf & Co., as a shipping and commission business.” This cannot be satisfactorily ascertained from the contract itself, because the term “ shipping business,” in its broadest extent, may mean any and every ldnd of business relating to ships, and may include ship-building; while the - term “ commission business,” in its largest signification, may mean any and every kind of business, for the transaction of which a commission is paid, and include every vendible commodity. It is clear that the term “ business conducted, &c., at No. 103 Broad street, in the name of D. R.De Wolf & Co., as a shipping-and commission business,” was not intended to have the large and extended signification above indicated. It was necessary and proper, therefore, to show by evidence aliunde the contract, what was the precise business carried on by the firm of De Wolf & Co. at No. 103 Broad street, “as 'a shipping and commission business.” This the counsel for the defendants was prohibited by the court from doing, though lie offered and desired so to do. Such ruling, I am of opinion, was erroneous.

Again, the plaintiff, in and by the contract, sells to the defendants not only his interest in the business of the firm of De Wolf & Co., but also the “ good-will ” of such business. And I see nothing in any other clause of the contract modifying or qualifying this provision. - If the term “ good-will of the business ” is to have any signification whatever, it must be held to be, even in its most restrictive sense, an agreement on the part . of a vendor that, in respect to the “ business ” which he thus sells the “ good-will ” of, he will not attempt, by any direct act or' word o'f his, to injure of depreciate' such business while being Carried on by his vendee, or divert from it any custom or "patronage which would otherwise come to it in consequence of the reputation and “good-will” pertaining to it while conducted, by the vendor. On the trial, defendants gave uncontradicted , evidence to show that, in a number of instances, the plaintiff: had deliberately and persistently intercepted business and custom, which would otherwise come to defendants’ firm, and' which before pertained to the firm of De Wolf & Co., and diverted the same to himself, by representing to the customer that defendants were unable and had not the facility of doing such business on as favorable terms as the plaintiff. There was also evidence of pecuniary damages sustained by the defendants in consequence of such conduct. This evidence should have been submitted to the jury, and if found to be true, defendants were entitled to recover for such damage.

Again, without examining the evidence in detail, which is quite voluminous, it suffices to say there was evidence tending to show quite satisfactorily that plaintiff had assumed to, and did, against the objections of the defendants, transact all and every the commission business of and for a number of vessels in the port of New York, in which he (plaintiff) at the time of the making of the contract owned a share,” and which he was “ able to and could control,” thus wrongfully diverting to himself moneys, being proceeds of business which he had expressly sold to the defendants, and which was the consideration of their agreement to pay. There was also evidence that plaintiff had likewise, in a number of instances, bought for ” the customers of the present firm” (D. R. De Wolf & Co.), which he was expressly prohibited from doing, as well in the clause enumerating the particular transactions, which plaintiff is not “ debarred ” from doing, as in the preceding general prohibitory clause; and that plaintiff had received as profits of such business divers sums of money which justly belonged to the defendants. The jury should likewise have been permitted to take this evidence into consideration, and, if true, awarded to defendants such damages as they have sustained in consequence.

For these reasons the judgment should be reversed and a new trial ordered, costs to abide the event.