author: Merwin, J.:

text:
    In the Matter of the Application for a Voluntary Dissolution of Eureka Mower Company. The Standard Harrow Company, Appellant; Adolphus I. Simmons, Receiver, etc., of Eureka Mower Company, Respondent.

      Matures, how determined — intent and conduct of the parties •— effect of the enumeration of certain of the articles in a conveyance.

    Ordinarily, in determining whether a certain article is a fixture and a part of the realty, the purpose of the annexation and the intent with which it was made are the most important considerations. The intent is sometimes presumed or it may be inferred from circumstances.
    When, however, there is an agreement on the subject between the parties, then the intent of the parties is to be given effect, and the question becomes one of interpretation and construction, determinable by the general rules applicable in such cases. In such cases the conduct of the parties is material, and if the language of the contract is indefinite or ambiguous, the practical interpretation of it by both parties is a consideration of importance.
    If there be many things of the same class or kind, the expression of one or more than one thing in a conveyance implies the exclusion of all not expressed, although the law would have included all if none had been enumerated.
    What specific articles are or are not fixtures which become part of the freehold, considered.
    Appeal by The Standard Harrow Company from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Oneida on the 8th day of January, 1895, adjudging certain property to be personal property, to the possession of which the receiver of the Eureka Mower Company is entitled.

      Sisley, Sobinson c& Love, for the appellant.

      Ooohingham & Sherman, for the respondent.
   Merwin, J.:

In February, 1893, tbe respondent Simmons was appointed receiver of the Eureka Mower Company, a domestic corporation organized for the purpose of manufacturing and selling mowing machines and other agricultural tools. At this time the company was in possession of about seven acres of land, on which were located brick buildings built by the company in which to conduct its business, and it had there manufactured mowing machines and also spring tooth harrows and cultivators. The receiver, after his appointment, continued to some extent to carry on the business for the purpose of closing up the affairs of the company. On the 6th. of September, 1893, by authority of the court, the receiver entered into a written contract with Edwin II. Risley, leasing to him for one year the real estate and certain machinery, and giving him the right to purchase the same on certain terms, provided he gave notice in writing on or before July 1, 1894, of liis desire and determination to do so. This option of purchase was in due time accepted by the Standard Harrow Company, the assignee of Risley, and for whose benefit, apparently, Mr. Risley acted in the transaction. In carrying out this contract a controversy arose as to whether certain articles on the premises were real estate and so passed under the contract, or whether they were personal property, and not included in the contract of sale. Thereupon the parties agreed upon a statement of the facts, and the receiver, upon notice, applied to the court for instructions, and for a determination of the questions involved, each party stipulating to abide by the decision of the court, without prejudice to the right of appeal. After hearing both parties the order appealed from was made.

In the contract of September 6, 1893, the property leased is described as follows: The manufacturing plant known as the Eureka Mower Company’s property, consisting of about seven (7) acres of land, on which are erected an office building, foundry, machine shops, storehouse, lumber sheds, scales, and other appliances for conducting a manufacturing business, including only such machinery and office furniture as is mentioned in a schedule hereunto attached marked A,’ with ail the appurtenances, rights, privileges and benefits, railroad tracks, water rights, and other privileges incident to said real estate.”

In giving the option of purchase, the property is described as “ the property embraced in this lease.” In Schedule “ A,” annexed to the contract, there was first, under the head of office furniture,” a list of such articles, then, under the head of “ machinery, etc., in wood shop,” a number of articles were specified, including one grindstone with iron frame,” several circular saws arid tables, a planer, a lathe, a section fan and its air pipes, work benches and iron vises on them, and “ all countershafts and belts now used for driving all the foregoing machinery.” Then, under the head of “ machinery and tools in blacksmith shop ” several articles were named, among others “ one Merrill & Bros, drop hammer,” a spring hammer, all countershafts, and belts used for driving them, “ one fan blower with its countershaft, belting and air pipes,” and lastly, under the head of “ machinery, piping, shafting, etc.,” there was entered all piping, line shafting and line belting, boilers, engines, heaters, steam pumps, all tools and appliances in the engine and boiler rooms.”

On the same day that this contract was made, the receiver took back from Risley a lease for a year of “ all that part of the Eureka Mower Company plant in Utica, described as follows: The north one-lialf of the machine shop and the rooms known as the milling, grinding and chipping rooms, on the north front of said plant, the foundry, sand house and pattern house, the cupola house, core room, and the iron and coke sheds, the easterly lumber shed,” and a certain portion of the office and furniture therein. On the 2d of January, 1894, the receiver gave to Hart & Crouse a lease from January 1 to September 1, 1894, of all that part of the Eureka Mower Company plant in Utica, New York, which is described as follows: The entire foundry, the sand house, pattern house, core room, cupola house, coal and coke houses, the milling and grinding, rooms, and all the machinery therein,” excepting certain things not important here. Prior to June 23, 1894, Risley assigned to the Standard Harrow Company the contract and option of September 6, 1893, and that company also acquired of Hart & Crouse their lease for the months of July and August, 1894, and entered into, possession uüereunder.

The articles- in controversy are a cupola, a blower, seven tumbling barrels, two grindstones, a power press, a drop hammer, two pattern-makers’ work benches, one having an iron vise and the other a wooden vise, and a quantity of hose and couplings. It is not claimed that any of these articles are mentioned in Schedule A attached to the contract of September 6, 1893. That contract by its terms included only such machinery ” as was mentioned in the .schedule. So that if the articles in question are to be deemed machinery within- the contemplation of the parties, they did not pass. The appellant claims they were so attached or used that they formed part of the realty and were not affected by the provision in the contract as to machinery.

Ordinarily in determining whether a certain article is a fixture and a part of the realty, the purpose of the annexation and the intent with which it was made are the most important considerations. (McRea v. Central Nat. Bank of Troy, 66 N. Y. 489.) The intent is sometimes piresumed (Tifft v. Horton, 53 N. Y. 382; Ewell on Fixtures, 43) or it may be inferred from circumstances. (McRea v. Central Nat. Bank, supra; Voorhees v. McGinnis, 48 N. Y. 278.) So that, in the present-case, although the intent with which the annexations were made is not specifically stated in the facts agreed upon, still the object and purpose of the annexation appear from the surrounding circumstances, and these facts are to be considered in ascertaining the intent of the annexation so far as it may be material. When, however, there is an agreement on the subject between the parties, then the intent of the parties is to be given effect and the question becomes one of interpretation and construction, determinable by the general rules applicable to such cases. (Ewell on Fixtures, 307.) In such cases the conduct of the parties is material, and if the language of the contract is indefinite or ambiguous the practical interpretation of it by both parties is a consideration of importance. (Woolsey v. Funke, 121 N. Y. 92.)

It is conceded that most if not all of the articles in controversy were placed in the buildings by the Eureka Company for its use in its manufacturing business. It is also quite apparent that many articles so placed were by all parties without question considered personal property.

Of the articles in question, the cupola, the blower and the tumbling barrels -were used in connection with the foundry. The cupola was in the foundry building and was used for melting iron to be used in making castings. It rested on a concrete foundation let into the ground and extended upward through the floor and through the roof and was covered with iron. It consisted of an iron shell about fifty-six inches in diameter, lined on the inside with fire brick, and was supported in its vertical position by iron stops bolted to the floor and to the roof. The structure seems to have been ■called the cupola house in the sublease to the receiver. The blower in question was used in connection with the cupola and was necessary to its operation. * It was located on the second floor of the building to which it was firmly attached by bolts, and it was connected with the interior of the cupola by a metallic pipe. Motion wras imparted to the blower through a system of shafts, pulleys and belts which connected with the main line of shafting in the building. The countershafting was supported by hangers bolted to timbers connected with the frame work or works of the building. The Standard Harrow Company upon taking possession under the lease assigned to it by Hart & Crouse severed the blower from all ■connection with the building cupola, and at the termination of the lease the blower together with its countershaft, pulleys, hangers and bolts lay on the floor in the foundry building.

Tumbling barrels are used in all iron casting foundries to free the castings from sand and other roughness of surface. The barrel is mounted on shafts supported in bearings made of cast iron which in turn are supported on a concrete foundation, the bearings being held in position by bolts, the heads of which are built into the concrete foundation and the bolts pass through the base of the bearings and are held in position by nuts. On one end of the bearings is a large cast iron pulley from which a belt runs to a countershaft, and this by belt is connected with the main line of shafting. One of the barrels in question -was in the same room with the cupola and the others were in a tumbling barrel room and were to some ■extent sejiarated by wooden partitions. They were all supported in -a similar way and were driven by belts running to countershafting, and that in turn receiving power through belts from the main line.

The two grindstones were located in the room adjoining that containing the tumbling barrels. The grindstone beds or walls were built •of brick and mortar and let into the ground and on the top of the walls there were bolted two timbers, one on each wall, and on these timbers the hangers for supporting the grindstone shafts were bolted. On the end of each grindstone shaft ivas a large cast iron pulley-connected by belt with the countershafting and that by belt connected with the main line. On the 16th of January, 1894, the receiver sold at public salo a large amount of property located in the said buildings, including the said grindstones, witb the- belts, pulleys, countershafts and hangers therefor, and Risley and the manager of the harrow company were present and saw the same sold and made no objection thereto or any claim on the property.

The power press and the drop hammer were in the machine shop. The press rested upon a large flat stone placed on a concrete foundation about four feet square let into the ground a sufficient depth to' support and steady the press in its work, the press being held in position by its own weight. The drop hammer ivas placed on a block of wood set in a vertical position and let into the ground a number of feet. The base of the hammer was bolted to the block by7 bolts so as to 'be held firmly in position. Both the press and the hammer were connected by pulleys and belts with the countershafting, and were operated by power derived in that way. They were located in that part of the building occupied by Risley7 and the liar-row company, and on the 4th of October, 1893, the harrow company rented them of the receiver for several months.

The work benches and vises were for the use of patternmakers, and were in no way fastened to the buildings. During the term of the lease they7 were removed by7 the harrow company from the room they were in at the time of the lease to another. The hose was at the date of the lease distributed in different rooms, and was fitted to be attached to hydrants in the yard of the mower company, for use in case of fire, and for any other purpose which it was suited for. It was provided for the safety of the plant, and the couplings were arranged to connect with the couplings of the hydrants. Neither the hose or the couplings were special, but were such as were in general use.

It is evident that all the articles in controversy, except the cupola, that were attached to the buildings or grounds, could be removed without injury, so that each of such articles may he said to be in itself a complete machine, or a complete article of machinery capable of being used in other places of like character. It is to be observed that in the schedule of machinery attached to the contract there are specified a fan blower and belting, and a drop hammer. The failure to specify the similar articles in controversy would indicate an intention they should not be included. All line shafting and line belting are specified, but only the countershafts and belts then used for driving the machinery therein specified. The inference would be that the countershafting and belting, in connection 'with articles not specified, were not intended to be included, as all the countershafting was attached to the buildings in substantially the same form. The conduct of the parties in regard to the sale of the grindstones and the renting of the power press and drop hammer, although the latter was at the time in possession of Risley and the harrow company, is suggestive of an understanding at the time that they were not covered by the original contract. The purpose of the lease in the contract of September 6,. 1893, was to enable the lessee or the harrow company to manufacture harrows. For that purpose they had no use for the articles specially connected with the foundry, and so it may be said that for that reason they were not mentioned in the schedule of machinery or intended to be included in the contract of purchase. The tumbling barrels were such as were used in similar foundries, and if the countershafts used in connection with them were not intended to be covered by the contract, as they were not therein specified, it may also be said that the barrels were not intended to be covered. They were certainly no more a part of the realty than the line shafting, and the specification of the latter gives point to the failure to specify the other.

If there be many things of the same class or kind, the expression of one or more of them in a conveyance implies the exclusion of all not expressed, although the law would have implied all if none had been enumerated. (2 Pars. on Cont. [8th ed:] 516 ; Hare v. Horton, 5 B. & Ad. 715.)

The foregoing considerations lead to the conclusion that the cupola should be deemed to be a part of the realty, but that all the other articles in controversy should be deemed machinery within the contemplation of the parties, and not being specified in the schedule attached to the contract, were not intended to be covered by its provisions.

The order appealed from should, therefore, be modified by declaring that the cupola is a part of the realty; in other respects the order should be affirmed.

Hardin, P. J., and Martin, J., concurred.

Order modified as stated in the opinion, and as modified affirmed, without costs of appeal to either party.


source: Caselaw Access Project

license: Public Domain

text:
    Violet A. McLaughry, an Infant, by Walter Scott, her Guardian ad Litem, Respondent, v. William C. Porter and Others, Appellants, Impleaded with Others.

      Personal injuries — wrongful removal under a wcn’rant of dispossession — change of the court as to the sheriff’s right to summon a posse.

    “Upon the trial of an action brought to recover damages for personal injuries, sustained by the alleged wrongful removal of the plaintiff from a certain house upon the execution by a deputy sheriff and his assistants of a warrant of 'dispossession, issued by a justice of the peace upon the petition of one of the defendants, the defendants gave evidence tending to show that the assistants were in good faith summoned to aid the officer, and were all necessary for the proper removal of a large amount of personal property, such as lumber and hay, which were upon the premises.
    The court charged the jury, among other things, as follows: “If he (the officer) went there with a posse selected by himself, not for the purpose of overcoming any resistance which he apprehended, or which was present, or which was determined to be present, then, gentlemen, he was there without lawful authority with his assistants, and he and his assistants, every one of them, became trespassers from the beginning, and cannot be protected in the proceedings which were enacted and which followed.”

      Held, that it was error to so charge, as a matter of law; that the defendants were entitled to have the jury determine as to whether the assistants were present in good faith, and the court had no right to withdraw such question from its consideration.
    Appeal by the defendants, William 0. Porter and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 29 th day of September, 1893, upon the verdict of a jury rendered after a trial at the Delaware Circuit, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 12th day of October, 1894, denying the defendants’ motion for a new trial made upon the minutes.

      Edward O' Goivnor and F. R. Gilbert, for the appellants.

      Walter Scott, for the respondent.
   Merwin, J.:

The exceptions only are before us upon this appeal. The action is brought to recover damages for personal injuries sustained, as the plaintiff claims, by her wrongful removal from the house occupied by her parents, upon the execution by the defendant Porter, a deputy sheriff, and his assistants, of a warrant of dispossession issued by a justice of the peace, upon the petition of the defendant McDonald after a foreclosure by advertisement of a mortgage made by the father of plaintiff, David H. McLaughry, who was then the owner of the premises. The plaintiff claims that she was at the time of her removal sick, and in substance, that the officer and those who assisted him were guilty of an abuse of the process in that they used unnecessary and unreasonable force in her removal, and that the assistants, or posse, which the officer had there were not summoned in good faith or for any legitimate purpose, but for the purpose of intimidation and violence. It is not alleged in the complaint that defendant McDonald was personally engaged in the removal, but it is alleged that the wrongful acts of the other defendants were done by and through his aid, advice, procurement and instigation. It appears that after the removal, and before the commencement of this action, the final order of the justice of the peace under which the defendants acted was, on appeal to the County Court, reversed. The court, however, charged that the officer and those who acted under him were protected unless there was an abuse of the process.

At the close of the evidence the counsel for the defendant McDonald moved that as to him the complaint be dismissed on the ground that sufficient facts had not been proven to establish a cause of action against him. This motion was denied and exception taken. The plaintiff claimed that there was sufficient evidence to make a question for the jury to say whether or not McDonald aided and abetted the other defendants in their improper conduct. There is evidence tending to show tliat McDonald was there on the premises and near the house and in consultation with the officer and with the two physicians that were there at his, McDonald’s, request, and took an active part in the removal; that the attorney, who represented him before the justice in obtaining the warrant, was present and took an active part in the matter; that his, McDonald’s, orders were to put the plaintiff into the road; that lie afterwards furnished to the officer the money with which he paid his assistants and the physicians. Ve are inclined to the opinion that the question as to McDonald’s participation in the matter was for the jury, and that the motion to dismiss as to him was properly denied.

The counsel for the defendant McDonald asked the court to charge “that if the jury find that the only connection defendant McDonald had with the eviction of this plaintiff was the presenting of the petition and commencing of the summary proceedings before the magistrate he is not liable in this action.” This was properly refused, for the reason that, on the undisputed evidence, McDonald was in fact connected with the eviction beyond what was stated in the request.

In the charge of the court there occurs the following: “ If he (the officer) went there with a posse selected by himself, not for the purpose of* overcoming any resistance which he apjn’ehended, or which was present, or which was determined to be present, then, gentlemen, he rvas there without lawful authority with his assistants, and he and his assistants, every one of them, became trespassers from the beginning and cannot be protected in the proceedings which were enacted and which followed.” Exception was duly taken. The charge, in effect, was that the officer had no right to take there the assistants which he did unless he apprehended resistance, and that if he took them there for any other purpose they were all trespassers. It was error to charge this as matter of law, inasmuch as the defendants claimed, and gave evidence tending to show, that the assistants were in good faith summoned to aid in, and were all necessary for the proper removal of, a large amount of personal property, such as lumber and hay, which the McLaughrys had on the jxremises. This aspect of the case the defendants were entitled to have the jury consider, and the court had no right to withdraw it from its consideration. It-may be claimed that taking the charge as a whole the error was cured. In this view we have examined the charge and are of the opinion that the error was not cured, although the attention of the court was expressly called to it by the exception taken at the close. The jury was liable to have been misled, and we cannot say that it was not. The evidence was very conflicting and the case was a peculiar one. We think that the exception was a good one', and that it inures to the benefit of McDonald as well as to the other appellants. Under the allegations of the complaint McDonald is only liable on the basis that the officer and his assistants improperly did their duty and committed a wrong on the plaintiff.

It follows that, by reason of the error suggested, a new trial must be granted.

Hardin, P. J., and Martin, J., concurred.

Judgment and order reversed on the exceptions and a new trial ordered, costs to abide the event.


text:
    Providence Steam and Gas Pipe Company, Appellant, v. Lansing W. Connell, Respondent.

      Foreign coiporations — when they can enforce an obligation without obtaining a certificate under chapter 687 of 1892 ■— liabilities of the directors for a failure to file an annual report — effect of extending the time of payment.

    A foreign corporation carrying on business in the State of Hew York at the time of the passage of chapter 687 of the Laws of 1892 had the same capacity to sue as had a domestic corporation. It had the right, to conduct its business in the ordinary way without the certificate provided for by section 15 of such act up to and including December 31, 1893, and after that date to perform and enforce any lawful contracts previously made; but if, after that date, it desired to do business beyond the performance and enforcement of previous contracts, it must have had such a certificate, and the provision in such section, that contracts made by such corporations when so acting could not be enfoi'ced until such certificate was procured, is applicable only where the corporation had been doing business in defiance of the law.
    It was not the design of the statute to interfere with the ordinary remedies where the corporation seeking to enforce a contract had the right to carry on its business when the contract sought to be enforced was made.
    Where a debt was contracted by a corporation, during the time of its default and failure to file the annual report required by section 30 of chapter 564 of the Laws of 1890, as amended by section 30 of chapter 688 of the Laws of 1892, the fact that tlie notes given by such corporation in payment of such obligation, during the continuance of such default, were not due during the continuance of the default or prior to the time that the report of the corporation was subsequently filed, does not relieve the directors of such corporation from personal liability upon such notes. In such case the debt having been contracted during the default was within the statute, although not due, and an extension of the time of payment by the corporation would not discharge the liability of its directors, although it would postpone the remedy, and the obtaining of a judgment therefor against the corporation would not affect the liability of its directors if the debt was not paid by it.
    Appeal by tlie plaintiff, the Providence Steam and Gas Pipe Company, from a judgment of the Supreme Court in favor of tlie defendant, entered in tlie office of the clerk of tlie county of Onondaga on the lotli day of November, 1891, upon the decision of the court, rendered after a trial at the Onondaga Circuit before the court without a jury, dismissing the plaintiff’s complaint, with notice of an intention to bring up for review all orders made in said action.
    In the decision it was held: “ 1. That the plaintiff, not having made the proof required by section 16 of the General Corporation Law, and not having procured the certificate required by section 15 thereof, cannot maintain this action. 2. That the complaint should be dismissed, with costs.”

      H. E. Miller, for the appellant.

      Oharles II. Peeh, for the respondent.
   Merwin, J.:

This action is brought by a creditor of a stock corporation to enforce the liability of a director for failure on the part of the corporation to file an annual report as required by section 30 of the Stock Corporation Law (Chap. 561 of the Laws of 1890, as amended by § 30 of chap. 688 of 1892). The main questions here are, (1) whether the plaintiff itself, being a foreign corporation, has capacity to sue, and (2) whether the debt due the plaintiff is within the provision of the statute making the directors liable for all the debts of the corporation then existing, and for all contracted before such report shall be made.”

The plaintiff, at the time of the transactions in question, was a foreign manufacturing stock corporation, organized several years before under tlie laws of the State of Rhode Island. It was doing business within this State, and has not at any time filed in the office of the Secretary of State the proofs required by section 16 of the General Corporation Law (Chap. 563 of 1890, as amended by chap. 687 of 1892), and procured the certificate required by section 15 of that act (Chap. 687 of the Laws of 1892). The Syracuse Bamboo Furniture Company is a manufacturing stock corporation, incorporated on the 19th of August, 1891, under the provisions of the Business Corporation Law (Chap. 567 of 1890), and the defendant is, and has been since its incorporation, one of its directors. Its business was carried on first at Syracuse, and afterwards at Baldwinsville in this State. On the 12th of April, 1892, the plaintiff and the furniture company entered into a contract in writing, by which the plaintiff agreed to supply to the factory of the furniture company at Baldwinsville a system of automatic fire extinguishers for the price of $950, which the company agreed to pay. The plaintiff completed the contract on its part on or about July 14, 1892. On December 9, 1892, the furniture company, for the price stated in the contract, gave to the plaintiff three notes dated that day for $300 each, and payable respectively in one, two and three months from date, with interest, and the balance of the price was paid in cash. The first of these notes was paid at maturity; upon the second there was paid $103.20, and the balance of that and the third note have not been paid. On the 17th of June, 1893, the plaintiff recovered a judgment against the furniture company for the balance due on the notes. It was found by the Special Term that the notes were made and accepted in full payment and settlement of the plaintiff’s claim, and that it was so agreed between the parties. The furniture company did not, in January, 1892, file any annual report as required by section 30 of the Stock Corporation Law, and it filed none until January 31, 1893, at which date it filed its report in the office of the clerk of Onondaga county, and on the first of February a duplicate was filed in the office of the Secretary of State. This report was verified by J. O. Kenyon, who deposed that he was the vice-president and treasurer of the company.

Section 15 of the General Corporation Law is as follows: “§15. Certificate of authority of a foreign corporation.— No foreign stock corporation other than a moneyed corporation shall do business in this State without Laving first procured from the Secretary of State a certificate that it has complied with all the requirements of law to authorize it to do business in this State, and .that the business of the corporation to be carried on in this State is Such as may be lawfully carried on by a corporation incorporated under the laws of this State for such or similar business, or, if more than one kind of business, by two or more corporations so incorporated for such kinds of business respectively. The Secretary of State shall deliver such certificate to every such corporation so complying with the requirements of law. No such corporation now doing business in this State shall do business herein after December 31, 1892, without having procured such 'certificate from the Secretary of State, but any lawful contract previously made by the corporation may be performed and enforced within the State subsequent to such date. No foreign stock corporation doing business in this State without such certificate shall maintain any action in this State upon any contract made by it in this State until it shall have procured such certificate.”

Section 16 states what proof shall be filed with the Secretary of State before he shall grant the certificate. These two sections were not in the law of 1890. The act of 1892 (Chap. 681) was passed May 18, 1892, and took effect twenty days after its passage, except as therein otherwise provided. So that when the contract was made between the plaintiff and the furniture company the capacity of the plaintiff to sue was the same as that of a domestic corporation. (Code Civ. Proc. § 1779; Demarest v. Flack, 128 N. Y. 205.) It was doing business in the State when the act of 1892 took effect, and it is expressly provided in section 15 that no such corporation now doing business in this State shall do business herein after December 31, 1892, without having procured such certificate from the Secretary of State, but any lawful contract previously made by the corporation may be performed and enforced within the State subsequent to such date.” This in effect provided that a corporation in the situation of the plaintiff had a right to go on with its business in the ordinary way without a certificate up to and including December 31, 1892, and, after that date, perform and enforce any lawful contracts previously made, but that if, after that date, it desired to do business beyond the performance and enforcement of previous contracts, it must have a certifícate. The last clause of the section was not intended to change these provisions, but was applicable to cases where corporations were doing business in defiance of the law, and it provided that contracts made by them when so acting could not be enforced until the certificate was procured. (See White on Corp. 21.)

This action of the plaintiff is not, strictly speaking, upon any contract made by it (Stokes v. Stickney, 96 N. Y. 323; Carr v. Rischer, 119 id. 117); but, assuming it is in substance an action to enforce its contract with the furniture company, the inhibition in the last clause of the section does not, we think, apply. The plaintiff had a right to carry on its business when the contract and notes were made, and it was not the design of the statute to interfere with the ordinary remedies in such a case. We think, therefore, the plaintiff had capacity to sue.

The defendant further claims that he is not liable because the notes that represent the balance of the debt due to plaintiff were not either of them due until after tlie annual report was filed on January 31, 1893. The plaintiff says the debt was contracted before and that was enough.

The position of the defendant is based on the idea that the debt for the contract price of the articles supplied by plaintiff, which had been due for some time before the giving of the notes, was satisfied by the notes so that a liability against defendant cannot be predicated on the original debt. It is not entirely clear that the evidence authorizes a finding that the notes were received in satisfaction of the prior debt (Carroll v. Sweet, 128 N. Y. 21), but assume that they were, then we have a case of a debt contracted on December 9, 1892, but not due until after January, 1893. Is the defendant relieved of liability because the debt was not due during the existence of the default in filing the report ?

Jones v. Barlow (62 N. Y. 202) is cited on both sides. That was an action to enforce the liability of a trustee, under the General Manufacturing Act (Chap. 40 of the Laws of 1848, § 12), by reason of failure to file an annual report in January, 1871. A report was filed in January, 1872. (See Jones v. Barlow, 38 Super. Ct. [6 J. & S.] 143.) The plaintiff in 1871 sold goods to the corporation for which in December, 1871, the corporation gave its notes on time. On the 6th of June, 1872, these notes were taken up and ten new ones given severally maturing the first one month from date and the others successively at intervals of one month. The action was commenced February 7, 1873, and at that time three of the notes were not due. The court below sustained a recovery for the full amount of all the notes, but the Court of Appeals held that the recovery must be limited to the amount due when the suit was commenced. It was not decided that a debt must become or be due during the existence of the default in filing the report in order to be recoverable. On the contrary, Judge Allen, at page 206, says: It would not be contended by any one that for merchandise sold the corporation, upon an agreed credit, while the trustees are in default for not making the statutory report, an action would lie against the trustees at once and before the expiration of the term of credit. The law does not vary the contract of the parties or absolve either from its performance or an observance of its terms. In such cases there would a liability, but it would be dormant, and not constitute a cause of action until the debt shall become due.'’

The case of Whitney Arms Co. v. Barlow (68 N. Y. 34) does not help the defendant. That was the case of an executory contract for the delivery of a certain quantity of locks, and it was not shown that, during the existence of the default in filing the report there had been any such performance as created an obligation to pay either presently or in the future. It seems to have been conceded that if there had been a performance, an indebtedness would have existed within the statute although the corporation had a term of credit for the price.

In Vernon v. Palmer (16 J. & S. 231) it is said that the true doctrine is that a debt is contracted when, in consideration of value received by the corporation, a payment is to be made, no matter whether at once or at a future period. (See, also, Carr v. Risher, 50 Hun, 148.)

We are of the opinion that the debt to plaintiff is within the statute. It was contracted during the existence of the default,-and the fact that the notes of December, 1892, were not due when the report of 1893 was filed, does not relieve the defendant. The debt was contracted and so within the statute though not due. All the notes became due long before the present action was commenced. An extension of time by tlie corporation would not discharge the defendant though it would postpone the remedy. (Jones v. Barlow, supra) The obtaining of a judgment by the plaintiff against the corporation did not affect the defendant’s liability as the debt was not paid. (Deming v. Puleston, 35 Super. Ct. [3 J. & S.] 309, 314; affd. in 55 N. Y. 655.)

These considerations lead to the conclusion that the complaint was improperly dismissed.

Hardin, P. J., and Martin, J., concurred.

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


author: Mbrwin, J.:

text:
    In the Matter of the Final Judicial Settlement of the Accounts of James Stevenson and Another, as Executors, etc., of Betsey Everts, Deceased, Respondents; Clarisse M. Harrison, Appellant.

      Surcharging an executor’s account —impeachment of pa/yment of a claim for nursing by a daughter — no implied contract — cases where an executor has allowed and has not allowed a claim, contrasted.

    Upon an accounting the affirmative of establishing more assets than are acknowledged by the inventory and account is with the party objecting, and it should be established with reasonable certainty and not left to mere conjecture or suspicion.
    Upon an accounting by executors the burden rests upon the contestants to impeach the payment by the executors of the claim of a daughter of their testatrix for nursing the deceased, and where such a claim has been paid by the executors, it cannot be presumed, as a matter of law from the fact that the deceased lived with her daughter, that there was no agreement that such daughter should be paid for her services.
    The individual claim of an executrix against the estate of her testator must be established by legal evidence.
    Where a question is presented as to the allowance to an executrix of a claim made • by her for nursing the testatrix, her mother, the performance of a filial duty should not be placed upon a pecuniary basis, nor should a child living away from home, if she performs services for a sick parent, be entitled, as a matter of law, to compensation upon the basis of a contract obligation. ■
    The mere fact that one person labors for another is ordinarily sufficient to sustain the finding of an implied contract to pay therefor, but this rule does not apply when the services are rendered between the members ®£ the same family.

      Appeal by Olarisse M. Harrison, one of the legatees named in the will of Betsey Everts, deceased, from a decree of the Surrogate’s Court of the county of Madison, entered in the Madison County Surrogate’s Court on the 15th day of March, 1894, settling and allowing the accounts of James Stevenson and another, executors, etc., of Betsey Everts, deceased, as adjusted and filed, and directing the distribution of the assets.

      A. 0. Phillips and P. A. I/ymcm, for the appellant.

      John F. Smith, for the respondents.
   Mbrwin, J.:

Betsey Everts died on the 16th of September, 1891, leaving a will bearing date November 4,1889, in which, after providing for the payment of debts and expenses and devising to her son Henry and his wife a farm for life with remainder over to their daughter, and giving to her daughter, A. Elavilla Everts, the sum of $1,600, which is stated to have been already advanced to her, she then gave to her daughters, Mary E. Blair and Olarisse M. Harrison, each the sum of $1,600. The residuary legatees were the four children above named of the testatrix. The personal estate, according to the account of the executors, amounted to about the sum of $3,500, and, after the payment of debts and expenses, there was, according to the decree appealed from, the sum $3,022.16, applicable toward the payment of the legacies to Mrs. Blair and Mrs. Harrison, and one-half thereof was distributed to each.

Hpon the accounting Mrs. Harrison claimed that, in addition to the amount charged in the account, the executors should be charged with a note of $1,000, made by Mi’s- Jackson, and a United States bond for $500. She also objected to the allowance to the executors of an item in the account of $100 paid to A. E. Everts for care of her mother, and to the allowance of an individual claim of the executrix, Mrs. Blair, of $124 for care and attendance upon her mother for 124 days, from May 15 to September 16, 1891. The surrogate declined to charge the executors with either of the additional items of assets and allowed each of the claims for care. The correctness of the decision of the surrogate as to each of these four items is challenged upon the appeal.

It was shown, that, at some time before her death, the testatrix owned a $1,000 note, made by Mrs. Jackson, and a $500 bond. It is not shown that either of these ever came into the possession of the executors, or that they were in the possession of the testatrix at the time of her death. There is evidence tending to show that the testatrix, a short time before her death, made a gift of the note to Mrs. Jackson, who is the daughter of Mrs. Blair, and that the bond was given by the testatrix to her daughter Flavilla. Upon an accounting, the affirmative of establishing more assets than are acknowledged by the inventory and account is with the party objecting, and it should be established with reasonable certainty and not left to mere conjecture or suspicion. (Marre v. Ginochio, 2 Bradf. 165; Bainbridge v. McCullough, 3 T. & C. 487; Redf. Surr. Pr. [5th ed.] 797.) No inventory had, in the present case, been filed previous to the accounting, but the appellant, about a year after the death, had a list of the property as claimed by the executors, and knew that the note and bond in question were not in it, but were claimed by the donees above referred to. No steps were taken to compel an inventory to be made. We are not prepared to say that the surrogate erred in holding, in substance, that a case was not made for charging the executors personally with the amount of the note and bond. No request was made for a direction to the executors to take legal proceedings to recover those items. Such a direction might have been given, according to the view taken of the power of the surrogate in Matter of Underhill (117 N. Y. 471).

The burden was on the contestant of impeaching the payment of the claim of A. Flavilla Everts. (Boughton v. Flint, 74 N. Y. 477; Metzger v. Metzger, 1 Bradf. 265 ; Matter of Accounting of Frazer, 92 N. Y. 239.) It was shown that the deceased lived with her daughter Flavilla, but we have no right, according to the case of Ulrich v. Ulrich (136 N. Y. 120), to presume as matter of law that there was no agreement that Flavilla should be paid for her services. The burden of proof being on the appellant, we find no good reason for disturbing the conclusion of the surrogate that the claim had not been shown to be invalid.

The individual claim of the executrix stands on a different basis. She is bound to establish her claim by legal evidence. (Code, § 2731; Kyle v. Kyle, 67 N. Y. 408.) The testatrix lived with her daughter 'Flavilla and Mrs. Blair lived near them. The testatrix was an old lady, and on the 15th of May, 1891, she fell and broke her hip and died on the 16th of September, 1891. Mrs. Blair claims that she sat up with her mother every night from the time of her injury to her death, being 124 days. She testified that her mother was confined to her bed and unable to help herself, and required the services of a nurse night and day; that her sister Flavilla “ generally took care of her during the day, and I generally took care of her during the nights; I set up with her one hundred twenty-four nights; it was worth one dollar per night. I was obliged to leave my own home to take care of her nights.” There was evidence that the wife of the son ITenry helped to take care of the mother, was there, when she could be, and some of the time stayed nights ; also, that Mrs. Harrison visited her mother during the summer as often as she could; was there several times, and sat up nights; also, that the granddaughter, Mrs. Jackson, was at her mother’s eleven weeks during that summer, and came over frequently to Flavilla’s and helped. There is also evidence that at the time the mother came to live with her daughter Flavilla, Mrs. Blair repeatedly stated that she wanted her mother to live near her so that if she was sick she could help take care of her and repay her for what the mother had done for her; that after her mother’s death Mrs. «Blair stated that her mother said she wanted her property equally divided between her children. These statements Mrs. Blair does not seem to deny. It was also shown that the mother told her son Henry repeatedly that she wanted her property equally divided between her children. The gift to Mrs. Jackson of the $1,000 note was claimed to have been made during the sickness of the testatrix.

There is no evidence of any agreement between Mrs. Blair and her mother that Mrs. Blair should be paid for her services, or that there was any mutual understanding to that effect. The mere fact that one person labors for another is ordinarily sufficient to sustain the finding of an implied contract to pay therefor. But this rule does not apply when the services are rendered between members of the same family. In Williams v. Hutchinson (3 N. Y. 312, 318), it is said : “We find other motives than the desire of gain which may prompt the exchange of mutual benefits between them, and hence, no right of action will accrue to either party, although the services or benefits received may be very valuable. And this does not so mucli depend upon an implied contract tliat the services are to be gratuitous, as upon the absence of any contract or promise that a reward should be paid.”

The general rule is not disputed by the counsel for the respondents, but the claim is that it is not applicable here because Mrs. Blair went from her own home to attend upon her mother, and, therefore, should not be deemed to be a member of the same family within tlie rule. Reference is made to the case of Moore v. Moore (21 How. Pr. 211), where a son who did not live with the testator made a claim for professional services as a physician, and at page 223 it is said : “ He places his right to recover on showing that he rendered meritorious and valuable services which were accepted by the testator. Ordinarily, from the fact of rendition and acceptance of services beneficent in their nature, the law will imply a promise to pay what the services are reasonably worth. This implication may not be repelled wholly by the fact that the service is rendered to a parent by a son of full age; but the legal presumption of an obligation to pay is less strong when the relation of parent and child exists, than in the case of dealing between persons not bound to each other. If, to the relationship, lie added other circumstances tending to show, as a matter of fact, that the services were gratuitously rendered, and without any expectation at the time on either side that payment was to he made, the law will not imply a contract for compensation.” In Markey v. Brewster (10 Hun, 16) there was a promise to pay. In Matter of Wells (4 N. Y. St. Repr. 878), a granddaughter, at the express request of the testator, left her own home and performed services for the testator. The other cases cited do not seem to reach the present case.

In "Wood’s Master and Servant (§ 72) the rule is stated to be that in all cases where compensation is claimed for services rendered for near relatives, as a father, brother, grandfather, etc., the law will not imply a promise, and no recovery can be had unless an express contract or circumstances equivalent thereto is shown.” In 2 Parsons on Contracts (8th ed.), 49, it is said : In general, wherever service is rendered and received, a contract of hiring, or an obligation to pay, will be presumed. But it is said not to be so where the service is ren: dered to the parent or uncle, or other near relative of the party, on the ground that the law regards such services as acts of gratuitous kindness and affection.” In Burgess v. Burgess (109 Penn. St. 316) it is said: The law is well settled that between parent and child there can be no recovery for services or maintenance unless upon proof of an express contract to pay therefor, and to establish such a contract requires the production of direct, clear and positive evidence.” In Zimmerman v. Zimmerman (129 Penn. St. 229) the same doctrine was applied, even though at the time of rendering the service the son was not a member of his father’s family, and it was held that to support a claim for nursing or other services, such as filial duty or common humanity require a son to render, there must be better proof than loose declarations of gratitude and of an intention to compensate made by a father in his last sickness.

It is at least doubtful whether under the circumstances of this case Mrs. Blair, as to her claim, is in a better position than a member of the family would be. The performance of a filial duty should not be jfiaced on a pecuniary basis. Nor should it be said that a child, though living away from home, if he performs a service for his sick parent, should be entitled, as matter of law, to compensation as upon the obligation of a contract.

But at most there was only the presumption of a promise to pay, and the question then is whether upon the circumstances here shown, including the absence of any promise, the presumption is overthrown (Williams v. Finch, 2 Barb. 208). All of the children seemed to have aided in caring for the mother. The mother expected that her property would be equally7 divided among her children. Still she had given her daughter Flavilla, with whom she lived, and who had the main burden of her sickness, an additional $500. She gave the daughter of Mrs. Blair $1,000, and this gift Mrs. Blair was active in having consummated during the sickness of her mother. This was indirectly for Mrs. Blair’s benefit, and was a large portion of the estate. It is not probable that the mother expected to further compensate Mrs. Blair for her services. If she had, it would naturally have been so distinctly understood.

The case is here-upon the facts (Code, § 2586), and we are of the opinion that the evidence does not justify the allowance of the claim of Mrs. Blair.

It follows that the decree should be modified by disallowing the claim of Mrs. Blair and striking the amount thereof from the allowances made to the executors, so that the sum to be distributed to the legatees, Mary E. Blair and Olarisse M. Harrison, will be the sum of $3,116.16 instead of the sum of $3,022.16, and giving to each on her legacy the sum of $1,513.08, and as modified the decree should be affirmed, without costs of this appeal to either party.

Hardin, P. J., and Martin, J., concurred.

Decree modified as stated in the opinion, and as modified affirmed without costs of this appeal to either party.


author: Meewin, J.:

text:
    Seneca Duell and Another, Respondents, v. Sarah R. McCraw, Appellant.

      Authority of an architect inferred from the owner's acts — effect of an a/rchitect’s certificate — waiver of the certificates and of strict performance.

    Ordinarily building contractors bave tlie right to infer from the conduct of the owner that the architect has authority from the owner to consent to the modification of the contract in the character or manner of laying the foundation walls of a building.
    An architect in certifying that a payment is due, which by the contract was payable “ when the foundation is complete,” in effect certifies that the foundation was completed according to the contract, and ordinarily this will be conclusive except where fraud or mistake is shown.
    Circumstances under which it will be presumed that the owner has waived the production of an architect’s certificate as to the final payment, and for extra work and material, considered.
    Circumstances under which a party is relieved from the strict performance of a contract, and the rule permitting a substantial performance and an allowance for defective work will be applied.
    Appeal by tlie defendant, Sarali R. McCraw, from a judgment of tlie Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Broome on the 30th day of April, 1891, upon the report of a referee.

      Gurtiss dk Newell, for the appellant.

      Millard dk Stewart, for the respondents.
   Meewin, J.:

This action is brought to recover á balance claimed to be due on a building contract. On the 24th of October, 1890, the plaintiff Duell and the defendant entered into a contract in writing for the erection by Duell on or before April 1, 1891, of a store and tenement block on a lot owned by defendant on State street in the city of Binghamton. Specifications and drawings were attached that were made by an architect, Mr. Reynolds. The work was to be done under his direction to his satisfaction, and its performance was to be attested by his certificate. The price was $7,150, of which $400 was payable when the foundation was completed, $500 when the frame was up and sheathed, $1,000 when the brick work was finished, $1,000 when the block ivas inclosed, $1,000 when the block was plastered, $1,000 when the block was cased and trimmed, and the balance of $2,250 when the block was completed, provided that in each of the said cases a certificate be obtained from the architect that the payment is due.” The sixth clause of the contract was as follows: a Sixth. Should any dispute arise respecting the true construction or meaning of the drawings or specifications the same shall be decided by the architect, and his decision shall be final and conclusive, but should any dispute arise respecting the true vafee of extra work, or works omitted, the same shall be valued by two competent persons, one employed by the owner and the other by the contractor, and those two shall have the power to name an umpire, whose decision shall be binding on all parties.” The tenth or last clause was as follows: “ Tenth. The last payment on this contract shall not be paid until all charges for extra work and allowances for omissions have been rendered, agreed to and certified by the architect.”

Soon after the contract was executed the work was commenced, the plaintiff Carrington having by transfer from Duell, with consent of defendant, become owner of a one-half interest. The rear of the lot was low ground, and in the specifications there was the following clause: “ The ground being soft where rear of building is located it will be necessary to dig a trench four feet deep and six feet wide, and fill with concrete two feet deep composed of broken stone and the proper proportions of Howe’s Cave cement and as directed by architect. The water in the cove will have to be drawn back and kept, pumped out until the foundation is complete. Com Crete foundation to be extended forty feet on either side of building if considered necessary by architect.”

It was soon found that the character of the ground where the rear wall was to be located was such that the concrete foundation' specified in the specifications would not answer the purpose. The plaintiffs so informed the defendant, who replied that they must consult the architect about any changes in the foundation. Thereupon the architect, at the expense of the defendant, caused rows of spiles to be driven as a basis for the rear foundation wall, and upon these the plaintiffs by direction of the architect built the wall, and it was agreed between the plaintiffs and the architect acting for the defendant that the sum of sixty-five dollars should be allowed by the plaintiffs to the defendant out of the contract price for the concrete not used under the rear wall as called for by the specifications. The work proceeded, and on or before January 26,1891, the foundation walls were completed, and soon thereafter they were inspected, measured and accepted by the architect, and on the 27th of March, 1891, he issued his certificate No. 1 stating that $500 was due the plaintiffs. This amount included the first payment of $400 on the contract, and the delay in issuing the certificate W’as occasioned by the filing of a lien by. the mason who constructed, the walls. On this certificate the defendant ¡laid $485. On the 21st of February, 1891, the architect issued his certificate No. 2 for $500; on March 1, 1891, his certificate No. 3 for $1,000, and on March 24, 1891, his certificate No. 4 for $1,000, and the defendant paid the plaintiffs the full amount of these certificates. After the issuing of these certificates a dispute arose between defendant and one Lee over the materials furnished by him for the plastering in the building, and the architect issued no certificate for the payment due when the plastering was completed, and lias never issued any further certificates. It is not claimed that the plaintiffs are responsible for the contest with Lee. The defendant afterwards, without a certificate from the architect, paid the plaintiffs, on the 18th of April, 1891, the sum of $500; on April 30, $1,000; on May 10, $245; on May 13,'$125, and on May 23, $600. These payments amounted to $5,455. Adding thereto the amount of the claim of Lee, $579.35, which the defendant assumed, also the sum of $65 allowed as hereinbefore stated oil account of not using concrete, and the sum of $105 agreed to be deducted from the contract price on account of changes made soon after the execution of-the contract, there remained of the contract price the sum of $945.65. The building was not completed by April first, but the delay, as the referee properly finds, is not chargeable to plaintiff's as it was mainly occasioned by the change in the basis of the foundation wall.

The main controversy at the trial was in relation to the settling of the rear, side and center walls, its cause and the consequent injury to the building, and also over the question of acceptance.

There is no doubt that the walls settled to some extent, but the evidence is conflicting as to how much and also as to the effect. The defendant claimed that the settling was mainly due to the improper foundation of the side and center walls and the failure to bind the center to the rear wall, while the claim of the plaintiffs was that the settling was attributable to the manner in which the piling was placed by the defendant under the rear wall, and the failure to place it to some extent under the other walls. The main ■defect claimed to exist in the foundation of the side and center walls was the failure to lay a concrete basis. This was not required by the architect, and the defendant suggests that he had no discretion to dispense with it under the terms of the specification on that subject above quoted. ¥e are, however, inclined to think that he had. That was his interpretation of the provision, and, under the contract, in case of doubt in the construction or meaning of the drawing or specifications, he was the arbiter. He accepted the walls knowing the concrete was not there. It is. also claimed that the base course under the side and center walls does not conform to the specifications. It is, however, in effect, found that they were constructed under the direction of the architect, and that when he gave the certificate No. 1, which covered the first payment, he knew that the base course was not in all respects such as was called for by the plans and specifications, and he knew the general character, size and quality of the base courses complained of. The defendant claims that, in regard to these base courses and their foundation, the plaintiffs were guilty of concealment and fraud, but the referee declines to so find, and this finding should not, we think, be disturbed. It is also found that the building was constructed under the direction of tlie architect, who was also employed and paid by the defendant to superintend its construction; that, as the work progressed, the original plans and specifications were departed from in many respects, but such departures were either authorized by defendant or the architect, or were waived or excused, and the work accepted after it was completed; that there are numerous defects in the construction of the building, but they are not of such a character as to pervade the whole work, and the most serious defects did not arise from and were bot caused by any willful acts of the plaintiffs, and are susceptible of remedy; that the plaintiffs substantially performed the conditions of the contract before the commencement of the action, except such as were modified, 'waived or excused, and the plaintiffs intended in good faith to comply with the terms of the contract. These findings are challenged by the defendant, but in view of the acceptance, to be hereafter referred to, and the allowances made by the referee for defects, we find no good reason for the defendant to complain. It is suggested that the architect had no authority from the defendant outside of that given by the contract, and at one period in the course of the trial, it seems to have been so conceded. Still, afterwards, it was proved, without objection, that defendant employed the architect to overlook and superintend the building, and the finding of the referee on the subject is fully supported. It is quite clear that the plaintiffs, from the conduct of the defendant, had the right to ‘believe that the architect had authority from her to consent to modifications in the character or manner of laying of the foundation walls. (Thomas v. Stewart, 132 N. Y. 580.)

The architect, in certifying that the payment was due which, by the contract, was payable “when the foundation is complete,” in effect certified that the foundation was built according to the contract. Ordinarily this would be conclusive except for fraud or mistake. (Wyckoff v. Meyers, 44 N. Y. 143; Anderson v. Meislahn, 12 Daly, 149.) The referee finds that the architect, when he gave his certificate as to the basement, did not know of the manner in which one of the side walls was laid over a portion of a stump, and to remedy this defect the referee allowed the defendant the sum of ninety dollars. He also found; quite favorably to the architect, that he did not know of the failure to bind a portion of the center wall to the rear wall, and. to remedy this defect he allowed the defendant the sum of $220. To remedy minor defects in other portions of the building the referee allowed the defendant the sum of $111, making in the aggregate the sum of $121 allowed for remedying defects.

Upon the subject of acceptance the referee finds: “Forty-fifth. — • That on the 2d of May, 1891, the defendant, in company with said architect, went to said building where plaintiffs were at work and requested plaintiffs to allow defendant to move a family into said building. In reply to such request the plaintiff Duell stated to the defendant and said architect in substance that he was unwilling to permit defendant to move into said building unless she would accept the building as far as the work had been completed. 'Whereupon said architect, in the presence of defendant, said to plaintiffs in substance that they were satisfied with the work as far as it was completed excepting the plastering, and that if plaintiffs would allow them to take possession of said building defendant would pay plaintiffs when they finished the building for the balance unpaid on the contract, including extra work, except the sum of $5Y9.35, the amount of Lee’s claim, for materials used in plastering;

“Forty-sixth.■ — That relying upon the statements made by defendant and said architect, plaintiffs then and there consented that defendant might move into the building, and on that day she moved a tenant therein, and the plaintiffs surrendered up to her the possession of said building, since which time the defendant has been in possession and occupancy of said building;
Forty-seventh.— That on said 2d day of May, 1891, when defendant took possession of said building, plaintiffs had nearly completed the same, there remaining to be done some work on the stairs, the hanging of a few doors in the rear of the building upon the lower floor or floors, the putting in of two or three windows in the cellar, and some painting upon the inside in the rear of said building;
“ Forty-eighth. — What within a few days thereafter plaintiffs substantially completed what remained to be done upon said building, and called upon defendant for the balance of their pay.”

The evidence is sufficient to sustain these findings. The defendant afterwards made payments to the extent of $9Y0, the items being above stated, and no certificate was asked for. The defendant took upon herself the adjustment of the Lee claim, and the amount of it was, by consent, deducted from the contract price. The controversy over the Lee claim seems to have been the occasion of the architect’s stopping his certificates. Inferentially the dispute between Lee and the defendant continued after this suit was commenced. The plaintiff, before commencing suit, applied to the architect for a final certificate, which he declined to give. The referee allowed extras to the amount of $127.19. The evidence fully sustains this allowance, but the amount was not agreed to by the parties or the value ascertained in thg manner specified in the sixth clause of the contract. It is found, however, that the plaintiffs, before suit, proposed to the defendant that the same be valued by two competent persons, one to be appointed by the plaintiffs and the other by the defendant, they to have power to name an umpire, but the suggestion was not entertained by defendant, and she omitted and neglected so to do. (Smith v. Alker, 102 N. Y. 87.)

The referee held that by the agreement of May 2, 1891, followed by the taking of possession by defendant, there was a waiver by defendant of an architect’s certificate as to the final payment, or for the extra work and materials. The authorities sustain the referee in this conclusion. (Flaherty v. Miner, 123 N. Y. 382, 390; Smith v. Alker, supra ; Fallon v. Lawler, 102 N. Y. 228; Nolan v. Whitney, 88 id. 648.)

An item of $200 was allowed the plaintiffs by the referee in regard to which some question is made. The plaintiff Duell, soon after the making of the contract, discovered that he had made a mistake of $300 in his figuring on the brick work. He informed the defendant of this mistake, and then, as the referee finds, it was agreed between him and defendant that he should go on and complete the building, and, when completed, he should exhibit to defendant his bills showing the cost of constructing the building, and, if it appeared that he had not made anything upon the contract, the' defendant would allow him the sum of $200 in addition to the amount specified in the contract. The cost of construction was in fact $7,428.39. It is found that after the building was completed, and before suit, the plaintiffs at different times demanded of defendant a settlement and payment, and were ready and willing to show defendant their bills, and what they had paid out in erecting the building, and asked defendant to fix a time when she would look over their bills, but defendant neglected and omitted so to do, or to pay plaintiffs the balance unpaid on the contract. It is not claimed that there was not a sufficient consideration for the agreement of the defendant (Munroe v. Perkins, 9 Pick. 298, 305; Lattimore v. Harsen, 14 Johns. 330; Stewart v. Keteltas, 36 N. Y. 392; 3 Am. & Eng. Ency. of Law, 836, note), but it is claimed that the plaintiffs did not exhibit their bills. They seemed to have been ready to do it, but the defendant did not care to settle. We think the item was properly allowed. At the trial one of the questions in dispute was whether the defendant in fact made a certain payment which the plaintiffs denied. This was clearly a question of fact, and the conclusion of the referee should not be disturbed.

We have thus considered what appear to be the main features of the case. The more important issues were on questions of fact. In view of the acceptance and promise, and subsequent occupancy by the defendant,.a case is presented where strict performance in every particular should not be deemed a condition precedent to the plaintiffs’ right of action on the contract, but the rule as to substantial performance (Woodward v. Fuller, 80 N. Y. 312; Murphy v. Stickley Simonds Co., 82 Hun, 158, and cases cited)- should be applied and the plaintiffs be allowed to recover the balance of the contract price, less the damages from defects attributable to the plaintiffs and not waived by the defendant. The referee has pro- ■ ceeded on this basis, and we find no good reason for disturbing the result.

LIardin, P. J., and Martin, J., concurred.

Judgment affirmed, with costs.


text:
    William H. Goodwin, Respondent, v. John C. Schreiber, Appellant.

      Numerous sales on credit me not alone proof of fraud — judgment that does not conform to the verdict — hoto corrected.

    The mere fact that a large number of the sales from a firm were on credit, although the vendee might have known that the firm was in failing circumstances, does not establish fraud.
    If a judgment as entered in an action does not, in fact, conform to the verdict rendered therein, the proper remedy is by motion to correct and not by appeal.
    Appeal by tlie defendant, John C. Schreiber, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 30th day of October, 1893, upon tlie verdict of a jury rendered after a trial at the Oneida Circuit, and also from an order entered in said clerk’s office on the 1st day of November, 1893, denying the defendant’s motion for a new trial made upon the minutes. -

      Jones c& Townsend, for the appellant.

      Matteson (& JDeAngeUs and William K&rncin, for the respondent.
   Mbrwin, J.:

On the 16th day of September, 1892, the defendant, as sheriff of the county of Oneida, under an attachment against the property of Enos Bontilier and Alexander JVÍ. Iiubley, composing the firm of Boutilier & Co , levied upon 410 bales of rags, then being in the possession of the plaintiff. On the 20th of September, 1892, a-similar levy was made by defendant under another attachment, and on the 2d of February, 1893, the property was sold by the defendant under executions issued on judgments recovered in the actions in which the attachments were issued. The plaintiff was a dealer in rags, and the property levied on consisted of his entire stock in his storehouse. The sheriff took possession of tlie storehouse and so remained about a month, when he removed the goods. This action is brought to recover damages for the conversion of the goods taken by the defendant and for damages to the premises and business of the plaintiff. The verdict is for the value of the goods.

The claim of the defendant is that all the goods taken were sold by Boutilier & Co. to the plaintiff under such circumstances as indicated an intention on the part of Boutilier & Co. to hinder, delay and defraud their creditors, and that the plaintiff participated in the fraud. The plaintiff claims that a considerable portion of the goods were purchased by him of other parties, and that what he purchased of Boutilier & Co. were purchased in good faith for a valuable consideration and without any notice of any fraudulent intent on the part of Boutilier & Co.

Boutilier & Co. had for several years been engaged in the business of buying, selling, sorting and grading rags to the extent of about $300,000 a year, though they apparently did not have capital of any very large amount. In the spring of 1892 they met with some large losses, but they continued in business, making large purchases and sales and using the proceeds in their business, until about the 6th of September, 1892, when the crisis came, the immediate cause being the refusal of further discounts at the banks at which they did business. The event showed that they were largely insolvent, and evidence was given on the part of the defendant tending to show that many purchases were made by them when they knew that they were insolvent and would not be able to pay the price when it became due. These purchases, however, so far as the property in controversy is concerned, are not repudiated by the sellers, as the property here is sought to be reached by the defendant as the property of Boutilier & Co. The issue here is over the character and purpose of the sales from Boutilier. & Co. to plaintiff.

The plaintiff commenced the business of buying, sorting and selling rags the latter part of May, 1892. He had then in money, according to his testimony, the sum of $700, and he soon afterwards borrowed of his father and used in the business the sum of $2,450. From the time of starting up to the sixth of September following at various times he purchased goods of Boutilier & Co. to the amount of about $23,700,, paying therefor in cash and merchandise, as the evidence tends to show, about the sum of $7,000, and the balance by notes, the most of which were on four months’ time, though there were some at two and three months. He purchased goods of other parties to the extent, as he testifies, of $11,000 or $12,000. The notes given to Boutilier & Go. were used in their business, and those that became due prior to the seizure by the defendant of the property seem to have been paid. After September 16 aM prior to January 1, 1893, notes to the amount of about $2,900 seem to have been paid, and the balance of the indebtedness for goods is in amount about equal to the -value of the property in controversy. The plaintiff, after obtaining possession of his storehouse, continued to carry on the business, and was so engaged at the time of the trial in .October, 1893.

At the trial the court charged the jury that the questions for them to consider were, first, did the firm of Boutilier & Co. transfer their property to the plaintiff with the intention of defrauding their creditors, and, secondly, did the plaintiff accept the transfer either knowing of that intent or having reasonable cause to believe that the intent existed, and that if either of these questions was found in the negative the plaintiff was entitled to their verdict. The defendant does not complain of this presentment of the questions, but does claim that the verdict for the plaintiff is against the evidence.

The question of fraud was one to be determined from a large number of circumstances, the bearing and effect of which might seem to be different to different' minds. The fact standing alone that a large number of the sales to plaintiff were on credit, although plaintiff may have known that Boutilier & Co. were in failing circumstances, did not establish fraud. (Loeschigk v. Bridge, 42 N. Y. 421; Ruhl v. Phillips, 48 id. 128.) The jury -had a right to believe from the evidence that the plaintiff, had he been let alone, would have paid for all that he bought and that the price he agreed to pay for the goods was as much as at the time they were reasonably worth, and that all the proceeds were being used by Boutilier & Co. for the payment of their debts, without any reservation for their own individual benefit. The absence of any such reservation or expectancy would be a material element on the question of fraud as well as of notice to plaintiff. The evidence to say the least does not make it clear that the plaintiff had any design to furnish Boutilier & Co. any secret benefit, or assist them in getting rid of thejr debts. The plaintiff at the trial presented an explanation to many of the circumstances upon which defendant relied as being suspicious or as pointing towards fraud. The weight or force to be given to these explanations was peculiarly within the province of tlie jury to determine, as they saw the plaintiff and heard him testify as well as the witness Baxter who was said to have been tlie chief assistant of the plaintiff in the transactions.

We have carefully examined, the evidence and we are of the opinion that there is no such preponderance in favor of the defendant as would justify us in disturbing tlie verdict. (4 R. S. [8th ed.] 2593, § 4; Bulger v. Rosa, 119 N. Y. 459.)

The defendant claims that the court erred in allowing the plaintiff to testify as to the reason why his brother-in-law, Baxter, helped him to keep his books. This, however, was proper by way of explanation iu regard to what had appeared on the cross-examination of the plaintiff by the counsel for the defendant.

A witness for the defendant, after having testified that he assisted in the weighing and appraisal of the stock in plaintiff’s warehouse in October, 1892; that the stock was piled in the rooms and not classified according to grades; that there ivas no order observed as to the classifying of them at all; that he was accustomed to the manner of keeping goods of that character in storehouses and knew how it is done in the trade, was asked the question : “What is the custom iu the trade in that respect ? ” This was objected to by the plaintiff as incompetent and was excluded and an exception taken. This is claimed to be error. It hardly needed evidence to show that the orderly conduct of the business required proper classification. The facts on the subject fully appeared and it is not clear how any custom in the trade would make the matter better or worse. Besides it had been previously shown by the defendant without objection that it was customary for rag dealers to have the different grades of rags placed together by themselves in the storehouse, and it was subsequently shown by defendant without objection by another witness, who was a rag dealer, that “ we try to keep the grade together as much as we can when we pile up the bales.” There was no dispute on the subject. We fail to see in this ruling any good ground for a reversal. Our attention is not called to any other ruling. There was no exception to the charge and there was no motion for a nonsuit.

It is suggested that the verdict was for the sum of $ll,448!l6, and that the judgment was entered on the basis that the verdict was for the sum of $11,948.16. A correction of the judgment is asked for. Tlie verdict as it appears in tlie appeal book in tbe clerk’s minutes of tbe trial is tbe sum of $11,448.76. In tbe order denying tbe motion on tlie minutes for a new trial it is recited that tbe verdict was for tbe sum of $11,948.76 and it is so recited in tbe judgment. It is also so stated in tbe statement in tbe printed ease under rule 41. At the sheriff’s sale on February 2,1893, tbe property sold for $11,449, and under tlie charge tlie jury were allowed to take that as tlie measure of damages with interest from February 2, 1893, to tlie time of tbe rendition of tlie verdict on October 24, 1893. This would make tbe verdict substantially as entered in tbe judgment. If tlie judgment as entered does not in fact conform to tbe verdict, tbe proper remedy is by motion to correct and not by appeal. (Leonard v. Columbia Steam Nav. Co., 84 N. Y. 48, 56, and cases cited.)

Hardin, P. J., and Martin, J., concurred.

Judgment and order affirmed, witli costs.


author: Pee Cueiam :

text:
    The City of Syracuse, Respondent, v. Sidney L. Benedict and Another, Appellants, Impleaded with Others.

      JShninent domain — purposes for which land can be condemned under cha/pter 291 of 1889, as amended by chapter 314 of 1890 — issues raised by an answer — section-3357 ct seq. of the Code of Girnl Procedure — zohen separate bills of costs will not be allowed the petitioner.

    In proceedings taken by the city of Syracuse under the provisions of chapter 291 of the Laws of 1889, as amended by chapter 314 of the Laws of 1890, it was held upon the trial of the issues “that the plaintiff is entitled ia this proceeding to acquire and condemn the right to lay, maintain, operate and repair within the limits of the property acquired for the purpose, not merely the one thirty-inch conduit pipe specified in the statute and referred to in the petition, but also the right to lay, maintain, operate and repair within said limits such other conduit pipe or pipes as from time to time the public use of said city hereinbefore referred to may require, and as tbe city may at any time be entitled to construct and lay.”
    In the judgment entered on the decision it was adjudged that the plaintiff was entitled to condemn and acquire “ the right to lay, relay, maintain and repair thereon such water pipe or pipes as shall be necessary or proper for the purpose of conveying water from Sbanealeles lake to said city, and to make such excavations and perform such other work thereon as may he necessary in the laying of said conduit pipe or pipes, and for its future care and maintenance.”

      Held, that the trial court erred in holding that the city had the right to lay any other pipe or pipes than the one mentioned in the statute;
    That the grant from the State was limited to the water that could be conducted through tiie one specified pipe, and no greater right was given, however much the city might in the future need it;
    That the right of eminent domain could only be invoked by the city to utilize the grant from the State as in fact made; and that it could not be assumed that the State would ever increase the grant;
    That in order to justify its condemnation the proposed use of the land of the owner must be clearly embraced within the legitimate object of the power conferred by the State.
    In an action brought by the city of Syracuse under the provisions of chapter 391 of the Laws of 1889, as amended by chapter 314 of the Laws of 1890, it was found by the Special Term as a matter of fact that the petitioner attempted to acquire by purchase from certain persons the property or rights sought to be obtained, but had been unable to agree With them; such allegation was coritained in the petition, but was denied by the answer, and there was no proof that sustained the finding.

      Held, that the finding was erroneous, as the burden rested upon the petitioner to prove the allegation.
    Condemnation proceedings instituted in aid of the provisions of chapter 391 of the Laws of 1889, as amended by chapter 314 of the Laws of 1890, are to be governed by section 3357 ei seq. of the Code of Civil Procedure, and in such proceedings the issues are to be formed and tried as in ordinary actions. The answer in the form prescribed by section 3365 of the Code raises an issue, and a corporation seeking to proceed must meet it by proof.
    Separate bills of costs should not be allowed in condemnation proceedings to the petitioner against two persons answering where if was alleged in the petition that such persons were co-partners, and owned the premises sought to be condemned as such, if such is found in the decision to be the fact.
    Appeal by the defendants, Sidney L. Benedict and another, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Onondaga on the 2d day of May, 1893, confirming the report and appraisal of commissioners appointed in condemnation proceedings and denying the defendants’ motion to set aside the said report, with notice of an intention to bring up for review upon said appeal a judgment entered in said clerk’s office on the 22d day of December, 1892, rendered after a trial at the Syracuse Special Term, adjudging that the plaintiff is entitled to the condemnation of certain property and directing the appointment of commissioners of appraisal, and all proceedings antecedent and subsequent to said judgment.
    This was a proceeding brought by the plaintiff in aid of the provisions of chapter 291 of the Laws of 1889, entitled “ An act to establish and maintain a water department in and for the city of Syracuse,” as amended by chapter 314 of 1890, to acquire by right of eminent domain certain property, rights and easements of twenty-eight defendants over whose lands a proposed conduit line passed from Skaneateles lake to the city of Syracuse. The petition of plaintiff is dated and verified November 21, 1892, and was presented at a Special Term of the Supreme Court at Syracuse on December 3, 1892. The appellants, Benedict and Martin, among others, put in an answer, and the issues joined were brought to trial at Special Term. Upon the decision of the court there made the judgment was entered, referred to in the notice of appeal. In pursuance of the judgment appraisers were appointed by order dated December 31, 1892. They afterwards made a report, and an order of confirmation was made on the 2d of May, 1893, which is the order appealed from.

      G. B. Milford, for the appellants.

      W. A. Beach, and Ghtmies L. Stone, for the respondent.
   Pee Cueiam :

1. By section 18 of the act of 1889, as amended by the act of 1890, it is provided as follows: “ The Syracuse water board is hereby authorized, under the restrictions and conditions hereinafter mentioned, to take and conduct water not required for the Erie canal from Skaneateles lake to said city through a pipe or main not exceeding thirty inches in diameter, for the purpose of supplying said city and its inhabitants with water.”

It was held and decided by the Special Term on the trial of the issues “that the plaintiff is entitled in this proceeding to acquire and condemn the right to lay, maintain, operate and repair within the limits of the property acquired for the purpose, not merely the one thirty-inch conduit pipe specified in the statute and referred to in the petition, but also the right to lay, maintain, operate and repair within said limits such other conduit pipe or pipes as from time to time the public use of said city hereinbefore referred to may require, and as the city may at anytime be entitled to construct and lay.” In the judgment entered on the decision it was adjudged that the plaintiff was entitled to condemn and acquire “ the right to lay, relay, maintain and repair thereon such water pipe or }DÍpes as shall be necessary or proper for the purpose of conveying water from Skaneateles lake to said city, and to make such excavations and perform such other work thereon as may be necessary in the laying of said conduit pipe or pipes, and for its future care and maintenance.”

We are of the opinion that the court erred in holding that the plaintiff had the right to condemn the right to lay any other pipe or pipes than the one specified in the statute. The grant from the State was limited to the water that could be conducted through the one specified pipe. No greater right was given, however much the city might in the future need it. The right of eminent domain could only be invoked by the city to utilize the grant from the State as in fact-made. That Avas limited to the one pipe as specified, and we cannot assume that the State will ever increase the grant. The proposed use of the lands of the OAvner must be clearly embraced within the legitimate object of the poAver conferred by the State. (Matter of Staten Island Rapid, Transit Co., 103 N. Y. 251, 257; Matter of Poughkeepsie Bridge Co., 108 id. 483; Lewis on Em. Dom. § 253 et seq.)

2. It was found by the Special Term, as matter of fact, that the plaintiff had attempted to acquire by purchase from the appellants the property or rights sought to be obtained, but had been unable to agree Avith them. There was an allegation to this effect in the petition and it was denied by the answer. There Avas no proof' that sustained the finding, and it is erroneous unless the burden is on the appellants to disprove the allegation. This was held to be the rule in some cases under the peculiar provision of the General Railroad Act (Chap. 140, Laws of 1850, § 15), Avhich provided that on the presentation of the petition any of the persons affected “ may show cause against granting the prayer of the petition, and may disprove any of the facts alleged in it.” There is, hoAvever, no such provision in the Condemnation Law (Code Civ. Proc. § 3357 et seq.), and we held at this term in the case of The City of Syracuse v. Stacey that a similar proceeding under the Syracuse "Water Act is to be governed by the provisions of the Code. The proceedings (§§ 3364— 3368) are made to conform to similar proceedings in actioiis, and it is quite evident that the issues are to be formed and tried as in ordinary actions. As said in Matter of Broadway & Seventh Ave. R. R. Co. (73 Hun, 13): “An answer in the form prescribed by section 3365 raises an issue, and the corporation seeking to proceed must meet it by proof.” We are of the opinion that the plaintiff was called on to furnish proof of its attempt to purchase and inability to acquire.

3. In the decree and judgment it is directed that the plaintiff recover separate bills of costs against the said defendants, Sidney L. Benedict and Nelson Martin. In the petition it was alleged that Benedict and Martin were co-partners and owned the premises as such, and it is so found in the decision. The answer of Benedict and Martin was a joint one. By section 3372 of the Code of Civil Procedure it is provided: “If a trial has been had and all the issues determined in favor of the plaintiff, costs of the trial shall not be allowed to the defendant, but the plaintiff shall recover of any defendant answering, the costs of such trial caused by the interposition of the unsuccessful defense, to be taxed by the clerk at the same rate as is allowed to the prevailing party for the trial of an action in the Supreme Court.” Under this provision separate bills of costs should not, we think, have been allowed against the appellants. (See Van, Tine v. Crane, 1 Wend. 524; 17 Am. & Eng. Ency. of Law, 918.)

Present — Hardin, P. J., Martin and Merwin, JJ.

Order appealed from reversed, with ten dollars costs and disbursements, and appraisal vacated and judgment reversed, with costs of the appeal to the appellants and a new trial ordered.

       See post, page 441.