author: Earl, J.

text:
    Andrew H. Hammond, Respondent, v. James Morgan, Appellant.

      It seems that a judgment for plaintiff in replevin may be entered although the jury has not assessed any damages or found the value of the property; the judgment, however, can only be enforced by execution, not by punishment for contempt. (Code of Civ. Pro., §§ 1730, 1731.)

      It seems that the proper mode of trial of an action in equity is before the court without a jury, unless at the instance of the court or a party, some one or all of the issues are ordered to be tried before a jury, and for that purpose the questions by the jury should be distinctly framed.
    If the facts so determined with those admitted by the pleadings cover the whole case, motion may at once he made for judgment upon which both parties have a right to be heard. The court may order judgment upon the case as so made, or it may set aside the findings of the jury, or use some of them, and it may allow either party to give further evidence.
    If motion for judgment he not at once made, it must be brought on upon motion.
    If the findings and admissions do not cover the whole case, the action must he regularly brought to a hearing before the court, which may adopt or reject tlie findings of the jury, and receive proof of other facts, and in such case the court must make findings of fact and law. (Code of Civ. Pro., §§ 968-972, 1225.)
    Plaintiff’s complaint alleged in substance that he delivered to defendant, to be held by him in trust for plaintiff, an assignment of certain letters-patent, etc., executed to plaintiff by defendant and others, also a release from certain obligations and contracts, which papers defendant refused, to deliver upon demand. Judgment was prayed directing defendant to return the papers and for damages because of the detention. The action was put by the plaintiff upon the Special Term calendar, but was stricken therefrom on motion of defendant on the ground that it was an action at law. It was then noticed by plaintiff for trial and was tried at a jury term. The jury rendered a verdict finding the title of the property in the plaintiff and that he should have the return thereof. Plaintiff thereafter on application ex parte to the judge who presided at the trial, obtained an order directing judgment ordering defendant forthwith to deliver to plaintiff the instruments so detained, and thereupon judgment was entered as directed. On motion to set aside the order and judgment, held, that considering the action, either as one in replevin or as an equitable one, the order and judgment were irregular and unauthorized; that defendant did not have a remedy by appeal from the judgment, his only remedy was by motion.

      It seems that where from the nature of the case or of property unlawfully detained, an action in trover or replevin will not give a proper or sufficient relief an equitable action may be instituted for the specific delivery of the property, judgment in which may be enforced by punishment for contempt, but in such case the facts conferring equity jurisdiction must be alleged and proved.
    (Argued December 8, 1885;
    decided January 19, 1886.)
    Appeal from order of the General Term of the Superior Court of the city of Hew York, made May 15, 1885, which affirmed an order of Special Term, to. set aside a judgment herein in favor of plaintiff and the order upon which it was entered as irregular and unauthorized.
    The nature of the action and the material facts are stated in the opinion.

      A. J. Vanderpoel for appellant.
    An action at law is still triable by a jury while one in equity is triable by the court. Damages are given in the former, specific relief in the latter. (Reubens v. Joil, 13 N. Y. 488.) The facts to entitle a party to specific relief must, under the Code, be the same as entitled him to specific relief formerly. (Coles v. Reynolds, 18 N. Y. 74.) The answer interposed clearly raised an issue of fact, and whether it should have been tried by the court or jury depended upon the nature of the action. (Code of Civ. Pro., §§ 968, 969.) The entry of the order of judgment and decree in a common-law action was irregular. (Wylie v. Speyer, 62 How. Pr. 107; Code of Civ. Pro., § 1287.) The verdict of the jury, since the chattel was never replevined, should have found its value at the time of the trial. (Code of Civ. Pro., § 1726.) The judgment should have been in the alternative and awarded to plaintiff the sum fixed as the value of the chattel to be paid by the defendant if possession thereof was not delivered to the plaintiff. (Code of Civ. Pro., § 1730.) If the action be one in equity, as now claimed by the plaintiff, in the nature of specific performance, the issues raised by the pleadings were triable by the court, unless a reference or jury trial was directed. (Code of Civ. Pro., §§ 969, 970, 971.) After the issues of fact directed to be tried by a jury have been distinctly and plainly stated for trial accordingly, and the jury has rendered its verdict, judgment may be taken upon the application of either party. (Code of Civ. Pro., § 1225.) The decision of the court should have been filed in the clerk’s office and should have stated separately the facts found and the conclusions of law. (Code of Civ. Pro., §§ 1010, 1022.) The question of the irregularity of the judgment was properly raised by motion to set it aside. (Schultz v. Hoagland, 9 Weekly Dig. 319.) By appealing from the judgment only errors committed on the trial could have been raised. (Code of Civ. Pro., § 999.) A motion for a new trial, upon the judge’s minutes, is made upon exceptions; or because the verdict is for excessive or insufficient damages, or otherwise contrary to the evidence. (Code of Civ. Pro., § 999.)

      Marshall P. Stafford for respondent.
    The appeals should be dismissed. The orders are not appealable. (Harris v. Brown, 93 N. Y. 390; Robbins v. Ferris, 5 Hun, 286; Noble
      v. Prescott, 4 E. D. Smith, 140; Peel v. Elliott, 16 How. 483; N. Y. Ice Co. v. N. W. Ins. Co. 23 N. Y. 357; Foote v. Lathrop, 41 id. 358; Schaettler v. Gardineer, 47 id. 406; McLean v. Stewart, 14 Hun, 472.) The cause of action stated in the complaint is one in which the trial court had power to decree specific performance. (Story’s Eq. Jur., §§ 703, 709; Johnson v. Brooks, 93 N. Y. 337; Jackson v. Butler, 2 Atk. 306.) The action was brought in equity for specific performance, and not at law, in replevin. (Rodgers v. Rodgers, 11 Barb. 395; Spalding v. Spalding, 3 How. 297; Dows v. Green, id, 377.) When this court is called upon to review or take into consideration deliberate and formal proceedings had at special and trial terms of the court below, it requires an official record made by that court itself, in the way prescribed by the Code and rules of practice, setting forth what its proceedings were, what it did and decided, and what was the basis and reason for its acts. Affidavits of attorneys giving their version of these particulars are not an authorized or reliable source of information upon such matters and cannot be considered. (People v. Kelly, 94 N. Y. 526; Briggs v. Waldron, 83 id. 582; Dow v. Darragh, 92 id. 537; Scott v. Morgan, 94 id. 508; Laning v. N. Y. C. R. R. Co., 49 id. 539; Grant v. Morse, 22 id. 324; Union Bk. v. Kupper, 63 id. 618.) The fact that a decree for specific performance was entered raises the presumption that the course of the trial was such as to make that the appropriate judgment. (Grant v. Morse, 22 N. Y. 325; Appleby v. Erie Co. S. Bk., 62 id. 18; Briant v. Trimmer, 47 id. 96; Standard O. Co. v. Triumph I. Co., 64 id. 85; Fisher v. Hepburn, 48 id. 55; Lewis v. Jones, 13 Abb. 427; Tracy v. Altmeyer, 46 N. Y. 598; Cushman v. Brundrett, 50 id. 296.) The Code expressly authorizes the employment of a jury in the trial of an equity suit either upon the application of a party or on its own motion. ( Wright v. Nostrand, 94 N. Y. 41; Carroll v. Deimel, 95 id. 255.) The order and judgment are themselves evidence of the facts recited in them. (Agricultural I. Co. v. Barnard, 96 N. Y. 532; Wright v. Nostrand, 94 id. 31.) When the case finally came up for trial, it was entirely in the discretion of the trial judge to decide how the case should be tried. (Code of Civ. Pro., § 967.) The court is not bound by the verdict of the jury in an equity suit. It may adopt the verdict in whole or in part, or it may disregard it entirely, find the facts exactly the opposite of what the jury finds them, and render judgment accordingly. (Learned v. Tillotson, 97 N. Y. 6; Carroll v. Deimel, 95 id. 255.) The appellant was bound to state the grounds of his motion and he must stand or fall by those he has named. (Rule 87; Gurnee v. Hoxie, 29 Barb. 547; Seelover v. Forbes, 22 How. 477; Dewes v. Graham, 16 Abb. 126; McKeon v. See, 51 N. Y. 300; Harder v. Harder, 26 Barb. 409; People v. Stevens, 1 How. 241; Roche v. Ward, 7 id. 416; Craig v. Fanning, 6 id. 336; Lillie v. Sherman, 39 id. 288; McLean v. Stewart, 14 Hun, 472; Hotaling v. Marsh, 14 Abb. 161.) The appellant is estopped from claiming that a decree for specific performance was not the proper judgment to enter as the result of the trial. (Jencks v. Smith, 1 N. Y. 92; Manning v. Port H. I. Co., 91 id. 666; Wright v. Cabot, 89 id. 570; Thayer v. Marsh, 75 id. 342; Salisbury v. Howe, 87 id. 128; Fitch v. Russell 48 id. 672; Wilson v. Roche, 58 id. 642; Devy v. Schaeffer, 55 id. 446; Forrest v. Havens, 38 id. 469; Bidwell v. Astor M. I. Co., 16 id. 263; Hazard v. Spears, 3 Keyes, 469.) There is no irregularity in the judgment entered. (Marble v. Lewis, 53 Barb. 437; Code of Civ. Pro., § 1228; Clapp v. Hawley, 96 N. Y. 614; Dwight v. Enos, 9 id. 470; Kennedy v. Apgar, 93 id. 539; Ingersoll v. Bostwick, 22 id. 425.) The order for judgment is not reviewable in this court. (Clark v. Hall, 7 Paige, 382; Smith v. Rathbun, 88 N. Y. 666; Van Slyke v. Hyatt, 46 id. 262; Buck v. Remsen, 34 id. 385; Whitney v. Townsend, 67 id. 40; Lawrence v. Farley, 73 id. 187; Cushman v. Brundrett, 50 id. 296; Howell v. Mills, 53 id. 322.) If the order for judgment were reviewable, it could be reviewed only by appeal from the judgment. (Smith v. Rathbun, 88 N. Y. 666; Smith v. Wylie, 4 Rob. 641.)
   Earl, J.

The plaintiff in his complaint alleges that on the 13th day of May, 1882, he delivered to the defendant a certain written assignment dated in the month of April of that year, and executed by the defendant and Jane Matthews as executors of Mason J. Matthews, deceased, whereby they conveyed to him all the interest of the deceased in certain letters-patent and licenses under an assignment of letters-patent, and also all the interest in any claim which the defendant and Jane Matthews, either by themselves or as executors, or jointly with the defendant and John Nichol had or might have against the Mechanical Orguenette Company of New York, or against any other parties relating to or growing out of the manufacture and sale of mechanical musical instruments; that the assignment was delivered to the defendant in trust to be returned to the plaintiff, but that the defendant failed and refused to return the same, although due demand therefor was made; and further, that in or about the month of March, 1882, a paper in the nature of a release was executed by the' firm of Needham & Son to the plaintiff whereby the plaintiff was wholly released from certain obligations, dues and contracts to and with the firm, of which release the defendant obtained possession and still retained possession without right thereto and in violation of plaintiff’s right to the possession thereof, although demand for delivery to the plaintiff had been made of defendant and refused; that the assignment and release were of great value to the plaintiff, and that the retention thereof by defendant had greatly damaged him. And judgment was prayed that the defendant be ordered to return the assignment and release and deliver them to the plaintiff, and that the plaintiff have such damage for the detention thereof as a reference for that purpose might show that the plaintiff had suffered, besides costs of the action. The answer denied all the allegations of the complaint except that the papers mentioned- therein had been demanded by the plaintiff. The action was subsequently by the plaintiff put upon the Special Term calendar for trial, and was stricken therefrom on motion of defendant’s attorney, on the ground that it was at law and not triable there. The plaintiff then noticed the action for trial at a jury term of the court and it was brought to trial, and appears to have been tri'ed as an action of replevin. The jury rendered “ a verdict for the plaintiff and found the title of the property in the plaintiff and that he should have the return thereof.” Four days after the rendition of the verdict, the plaintiff applied to the judge who presided at the trial, ex parte, without any notice whatever to the defendant, and obtained from him an order which directed that the plaintiff have judgment against the defendant ordering him -to deliver forthwith to the plaintiff the two instruments mentioned in the complaint, and particularly described in the order, and that plaintiff have judgment against the defendant for costs to be taxed, and that he have execution therefor. Thereupon, on the same day, without any notice to the defendant, the plaintiff entered judgment in pursuance of that order, wherein it was adjudged and decreed that the defendant deliver forthwith to the plaintiff the two instruments mentioned in the complaint, and that the plaintiff have judgment against the defendant for costs of the action which had been adjusted at $210.92, and that he have execution therefor. A motion was subsequently made by the defendant, among other things, to strike the costs from the judgment, before the same judge who tried the action, and he, seeming yet to treat the action as one in replevin, struck the costs from the judgment on the ground that the jury had not found any value to the property nor any damages for the detention thereof, and that, therefore, there was no basis for au allowance of costs under subdivision 2 of section 3228 of the Code of Proceedure. The defendant subsequently by permission of the court made a motion to set aside the order and judgment as irregular and unauthorized, which motion was denied at the Special Term. He then appealed to the General Term and from affirmance there to this court.

From the form of the complaint it is not certain whether the action is at law to recover the possession of the written instruments mentioned in the complaint or "in equity to compel the defendant to specifically perform, by delivering the instruments to the plaintiff. It does not seem to be disputed that if the action was one in replevin the judgment is irregular, because it is not such as is prescribed in the Oode. A judgment in replevin should award the property to the plaintiff, together with damages for its detention, and, in case delivery of the property cannot be made, its value as determined by the jury in lien thereof ; and the judgment must be enforced by execution and not by punishment for contempt. (Oode, §§ 1730, 1731.) A judgment in replevin may undoubtedly be entered, although the jury has not assessed any damages or found the value of the property. In that case the judgment would simply award the property to the plaintiff, to be enforced by execution, and if the return of the property could not be thus obtained, the judgment would be unavailing.

But here the property was not replevied, and it is not now claimed by the counsel for the respondent that the action is to be treated as one at law for the recovery of chattels.

If, on the other hand, this is to be treated as an action in equity to compel specific performance ón the part of the defendant, as now claimed on behalf of the plaintiff, then the judgment was wholly unauthorized and the practice quite irregular. In that event the case was properly noticed at the Special Term and should there have been tried before the judge without a jury, unless at his instance or upon the motion of one of the parties some or all the" issues were ordered to be tried before a jury ; and for that purpose the questions to be answered by them should have been distinctly framed. In such case the issues are sent to a jury for the aid and information of the court. If the questions thus submitted to and answered by the jury, together with facts admitted by the pleadings, cover the whole case, so that no further facts need be proved for the information of the court, motion may at once be made for judgment. Upon such motion both parties have a right to be heard, and the court may order judgment upon the case as then made, or it may set aside the findings of the jury, or use some of them, and it may allow either party to give further evidence. So if the motion for judgment be not at once made, it must be brought on upon motion so that both parties may be heard. But if the findings of the jury together with the facts admitted in the pleadings do not cover the whole case, and other issues remain to be tried, or other facts requisite for equitable relief remain to be proved, then the case must be regularly brought to a hearing before the court, when it may or may not adopt the findings of the jury, and other facts may be proved, and in such case the court must make findings of fact and law to which exceptions may be taken by either party desiring to appeal. Such is the general scheme of practice prescribed by the Code, and in this case there was no sem-' blance of compliance with it. (Code, §§ 968, 969, 971, 972, 1225.)

Here there was no order sending issues for trial to the jury, and no questions or issues were framed; no proof was subsequently taken before the court, and no notice was given to defendants’ attorney of the application for the order and judgment.

But if we assume that the verdict of the jury may stand, as no objection was made to the mode of trial or to the verdict, then what did it determine ? Simply that the plaintiff owned the instruments and that the defendants wrongfully detained them. These findings, so far as they went, were ample for an action of replevin, but were they, without more, sufficient for the equitable relief awarded ? The ordinary remedies of a party against one who has wrongfully converted and wrongfully detains his chattels or choses in action is by an action of trover or replevin. But in peculiar cases, where from the nature of the case or of the property detained, neither of such actions will give proper or sufficient relief, an equitable action may be instituted for the specific delivery of the property, and judgment in such an action may be enforced by punishment for contempt. But before the equitable relief can be granted, the facts conferring equity jurisdiction should be alleged and must be proved. (Pomeroy’s Eq. Jur., §§ 177,1402.)

Here, after the rendition of the verdict, the court could have taken further proof, if necessary, and could thus, after hearing the parties, have given judgment based upon its findings of fact and law, including the findings of the jury.

We think, therefore, that the order for judgment and the judgment should be set aside, and then the case will stand where it stood after the verdict, and if the court shall then treat this as an equitable action, it may hear the parties, and if further proof be offered or needed, can take it and then render the proper judgment.

We do not determine whether this should be treated as an action at law or in equity. We leave such determination to the court below. All we now determine is, that the order and judgment should not have been made without notice to and hearing of the defendant, and probably without further proof and findings of fact and law by the judge. The defendant did not have a remedy for the error or irregularity he complains of by an appeal from the order or judgment. His only remedy was by motion.

The orders of the General and Special Terms should be reversed and the order and judgment should be vacated, and the case remitted to the Special Term of the court below for further action therein; and the defendant should have costs of the appeal to the General Term and to this court, and $10 costs of motion.

All concur.

■Ordered accordingly.


source: Caselaw Access Project

author: Danforth, J.

license: Public Domain

text:
    In the Matter of the Petition of Lewis Knaust to Vacate an Assessment.
    The act of 3866 (Chap. 367, Laws of 1866), entitled “ An act relative to the powers and duties of the commissioners of Central Park,” is not violative of the constitutional requirement (State Const., art. 3, §16), that a local or private bill shall embrace but one subject, which shall be expressed in the title.
    The said act was not superseded by the act chapter 697 of the Laws of 1867 (amended by chap. 288, Laws of 1868).

      The power conferred upon the commissioners of Central Park by said act of 1866, in respect to the improvement directed, and subsequently transferred to the department of public works (Chap. 383, Laws of 1870; chap. 872, Laws of 1872), is exclusive of that conferred upon any other body; and the manner of doing the work is left to their discretion.
    Accordingly held, it was no objection to an assessment for the improvement that there was no ordinance of the common council authorizing it, or that the work was not done by contract let to the lowest bidder.

      In re Beering (85 N. Y. 1), distinguished.
    (Argued December 8, 1885;
    decided January 19, 1886.)
    Appeal from order of the General Term of the Supreme Court, in the first judicial department, made April 8, 1881, which reversed an order of Special Term, vaeating'an assessment for regulating, grading, etc., Manhattan street in the city of New York.
    The facts are sufficiently stated in the opinion.

      James A. Deering for appellant.
    The power to initiate a local improvement and assess can be conferred only by ordinance of the council. (Laws of 1813, chap. 86, § 176; Laws of 1870, chap. 137, § 12; Matter of Deering, 85 N. Y. 1.) The failure to advertise for proposals and contract for the work was a substantial error, vitiating the assessment. (Laws of 1861, chap. 308; Laws of 1870, chap. 137, § 104; Matter of Emigrant Bk., 75 N. Y. 388; Matter of Trustees of Presbytery, 57 How. Pr. 500; Matter of Robbins, 82 N. Y. 131; Matter of Merriam, 84 id. 80; Matter of Lange, 85 id. 14.) The departments of public parks and public works, which succeeded to the jurisdiction of the department of parks under chapter 872, Laws of 1872, had not jurisdiction to. improve Manhattan street in any manner whatever. (Laws of 1867, chap. 867; Laws of 1859, chap. 363 ; Laws of 1864, chap. 275 ; Laws of 1864, chap. 319 ; Laws of 1865, chap. 564; chap. 565 í chap. 581; Laws of 1866, chap. 367.; chap. 550; chap. 632 ; People v. Brooklyn, 69 N. Y. 605; Sedg. on Stat. Constr. 97, 104, 365, 377.) The fact that it was shown or retained, although widened upon the map made in March, 1868, under the act of 1867, did not make it a street “laid out” by the commisioners of Central Park. (Matter of Deering, 85 N. Y. 1; Matter of Em. Ind. Bk., 73 id. 388; People v. McNeil, 2 Supr. Ct. 140.) Chapter 367, Laws of 1866, is unconstitutional. Its title does not express its subject. (In re Blodgett, 89 N. Y. 392; People v. Hill, 35 id. 449; Gaskin v. Meek, 42 id. 186: People v. Allen, id. 404; People v. Brooklyn, 13 Abb. [N. S.] 121; In re Sackett St., 74 N. Y. 95.) The moneys required for “ the maintenance and government of the Central Park ” were required to be raised by taxation only. (Laws of 1860, chap. 85, § 4.) The regulating, grading, etc., of a street is an “ improvement ” thereof. (Astor v. Mayor, etc., 62 N. Y. 580.)

      D. J. Dean for respondent.
    The department of public parks was clothed by the legislature with full power to initiate and prosecute the improvement- in question without resolution, or ordinance of the common council. (Laws of 1866, chap. 367, §§ 2, 3, 7; Astor v. Mayor, etc., 62 N. Y. 567.) It was not necessary that the work should be done upon sealed bids and proposals founded upon public advertisement. (Laws of 1857, chap. 771, § 4; Parr v. Village of Greenbush, 73 N. Y. 463; Kingsley v. Brooklyn, 7 Abb. N. C. 29; Green v. Mayor, etc., 60 N. Y. 303; Laws of 1872, chap. 872, § 7; In re Robbins, 82 N. Y. 131; Kingsland v. Palmer, 52 id. 85; In re Commissioners, 50 id. 493; In re Cram, 69 id. 452; Sedgw. Stat. Constr. 98; In re Zborowski, 68 N. Y. 88.) Mo question as to the constitutionality of the act in question can be raised and considered in this court. (In re Eager, 46 N. Y. 109; In re Clark, 31 Hun, 198; In re Rich's Case, 12 Abb. 118, In re Miller's Case, id. 121.) When a general purpose is expressed in the title of an act, all matters fairly and reasonably connected with that purpose are germain to the title and properly included in the text to the enactment. (Harris v. People, 59 N. Y. 599; Devlin v. Mayor, etc., 63 id. 8; Kerrigan v. Force, 68 id. 381; People v. Briggs, 50 id. 553; Volkening, 52 id. 650; Wensler v. People, 58 id. 505; Matter of Mayer, 50 id. 504, 86 id. 439; Sun Mut. Ins. Co. v. Mayor, etc., 8 id. 253; Conner v. Mayor, etc., 5 id. 293.) The court will not adopt a doubtful construction of a constitutional provision for the purpose of invalidating a statute and defeating the will of the legislature. (In re Middletown, 82 N. Y. 199; Kerrigan v. Force, 68 id, 381; Gilbert Elev. R. R. v. Kobbe, 70 id. 367.)
   Danforth, J.

Ac Special Term the petitioner succeeded, but the General Term reversed the decision there made, and he now appeals to this court, alleging two grounds of error : First. “ The absence of any ordinance of the common council authorizing the improvement” in question; and Second. That the work was not done by contract let after public bidding.” The questions were before the court in Matter of Walter (75 N Y. 354), upon the same assessment, but the case, was determined upon other propositions, and these were not passed uj)on. They are, however, insufficient to sustain this appeal. The act of 1886 (Chap. 367, § 1) made it the duty of the commissioners of Central Park to lay out and establish the grade of an avenue to be called St. Nicholas, empowered them to extend and widen Manhattan street, and whenever they should deem it necessary “ fix and establish, or change the grade of any street or avenue, or any part of any street or avenue that intersects any street, road or avenue required by law to be laid out, established, regulated or improved by them, or under their direction.” They were also directed (§ 3 of same act) to make and file maps of surveys of the avenue and of the widening and extension of Manhattan street, showing its width, location and grade. Section 4 makes these maps and surveys final and conclusive in respect to the matters referred to, “as well in respect to the mayor, aldermen and commonalty of the city of New York as in respect to the owners and occupants” of lands affected thereby, and “in respect to all persons whomsoever.” Section 7 of the same act declares that the said commissioners of the Central Park shall, with respect to the avenue to be laid out by them, as required by this act, and with respect to that portion of Seven th avenue lying north of the Central Park, in said city, and with respect to all streets, avenues, roads and portions of said city required by law to be laid out or improved, under the direction of the said commissioners, and the laying out, grading, regulating, sewering, paving, and improving the same, possess all the powers and perform all the dtdies now or heretofore possessed, enjoyed or exercised Toy such commissioners in respect to the Central Park, in said city, and by the mayor, aldermen and commonalty of the city of New York, and the several departments of the said city, in relation to the said streets, avenues and similar improvements thereof in other parts of said city,” and enacts that “it shall be lawful for the said commissioners to do all the work required to be done by them, by day’s work, or by contract, or in such manner as they shall deem expedient.” In Walter's Case {supra) it appeared that the whole work on Manhattan street, including paving, for which the assessment in question was made, was covered by a single resolution of the department of public parks, passed on the 2d of May, 1871, for the regulating, grading, paving and improving Manhattan street from Twelfth avenue to Avenue St. Nicholas. That resolution was said to be “ the acknowledged source of authority for the work,” and it was all done under the direction of that department and its successor, the department of public works. Such is the case here. The resolution at the bottom of the proceedings is that of the commissioners referred to in the Walter Case, and under it the work was done, partly by contract and partly by the day. It was completed by the department of public works, to which the powers of the Central Park commissioners were transferred. (Laws of 1870, chap, 383, § 16; Laws of 1872, chap. 872, § 7.) The language of the act of 1866, above quoted, is so plain and comprehensive as to permit no other construction than that given to it by the commissioners. The power granted m respect to the improvement was exclusive of that of any other body, and the manner of doing it is left to their discretion. As to both matters their authority was ample.

Matter of Deering (85 N. Y. 1, 11), referred to by the appellant, has no application. The avenue, to the improvement of which the proceedings then in question related, had already been laid out and opened, and improvements made under direction of the city government; and as the act of 1865 (Chap. 506), by which it was sought to justify them, confined and limited the power of the commissioners of Central Park to streets laid out by them, it was held they had no jurisdiction, and that the assessment was invalid for want of some resolution or ordinance of the common council authorizing the work. The decision turned on the construction of the statute.

In the case at bar there is no such limitation, and the statute under which the commissioners have acted specifically conferred the power which they have exercised. It authorized the improvement and declared the powers of the commissioners in respect thereto. It not only authorized the laying out of streets, but extended the power of the commissioners so as to include all streets, whether laid out by them, or simply improved under their direction; as to those they were vested with all the powers possessed by them in respect to Central Park, and by the corporation of the city and its several departments over such matters.

A variety of cases are cited by the appellant in support of the objection that the work was not contracted for after advertisement for proposals. They relate to work done under the charter or city ordinances, but imply no limitation to a discretionary power in respect to work ordered by a body whose "jurisdiction is derived directly from the legislature.

It is also contended in behalf of the appellant that the act of 1866 was superseded by the act of 1867 (Chap. 696), amended in 1868 (Chap. 288). There are no express words to that effect, and if repealed it is by implication. Such effect cannot be given to the later act, unless its provisions are so inconsistent with, or repugnant to, those of the other, that the two cannot stand together. Bor is the court to strive for such a result. If it is not apparent that the legislature did intend to deal with the very case to which the former statute applied, it should not be disturbed. Here we find no such intention. The existing power of the commissioners is extended, and neither extinguished nor taken away. Their jurisdiction over Manhattan street was specifically conferred by the act of 1866. Its exercise was not forbidden by the act of 1867; nor is it inconsistent with its provisions.

A larger question is also presented. The learned counsel for the appellant insists that the act of 1866 is unconstitutional, saying, “ Its title does not express its subject.” It is, “An act relative to the powers and duties of the commissioners of Central Park,” and a careful scrutiny of its provisions has not enabled us to discover in what respect — having in mind repeated decisions in answer to such objection—the title could be improved. It expresses a general object, and it must now be considered as the settled rule of construction that where such is the case, all matters fairly and reasonably connected with it, and all measures which will or may facilitate its accomplishment, are proper to be incorporated in the act and are germain to the title. (People v. Briggs, 50 N. Y. 553; In re Mayer, id. 504; In re Department of Public Parks, 86 id. 437; In re Upson, 89 id. 67; Water Commissioners of Clinton v. Dwight. ) Those now before us are strictly within this rule. The provisions of the act, if literally applied, would include no matter not intrusted to the commissioners, nor any subject over which they are not by its terms given jurisdiction.. Each section of the act defines a power or prescribes a duty of the commissioners.

We agree with the General Term in the conclusion that the assessment was well laid. The order appealed from should, therefore, be affirmed.

All concur.

Order affirmed.

        Ante, page 9.


author: Finch, J.

text:
    People, ex rel. Leon Van Heck, Respondent, v. New York Catholic Protectory, Appellant.
    The section of the Penal Code (§ 291), authorizing and directing the arrest of children found begging, etc., and their commitment “to any charitable reformatory or other institution authorized by law to receive and take charge of minors,” does not repeal, or, as to commitments under said act to the New York Catholic Protectory, dispense with the provisions of the charter of said protectory (Chap. 448, Laws of-1863), or of the Consolidation Act (§ 1618 et seq., chap. 410, Laws of 1882) requiring notice of the commitment to be given to the parents, guardian, etc., of a child so committed, and giving the parents or guardian an opportunity to be heard.

      It seems the section simply means that the magistrate or court before whom the child is brought, knowing the authority of the different institutions to receive and retain minors, and the limitations upon that authority, may select from among them the one'he deems most fitting, and the one so selected takes and holds the child for the time, in the manner and under the regulations prescribed by its fundamental law.
    Where, therefore, a boy nine years of age was committed for begging to said protectory, to remain under its guardianship ‘ ‘ until therefrom discharged in manner prescribed by law,” no notice of the commitment having been given to the father of the child, and upon returns to a writ of certiorari and to a writ of habeas corpus to inquire into the cause of the commitment, which writs were issued more than twenty days after the commitment, the boy was discharged. Held no error.
    (Argued December 22, 1885;
    decided January 19, 1886.)
    Appeal from order of the General Term of the Supreme Court, in the first judicial department, made October 30,1885, which reversed an order of Special Term dismissing a writ of certiorari and of habeas corpus issued herein, and which directed that John Yan Heck, son of the relator, be discharged from the custody of defendant and delivered to the custody and control of relator.
    The material facts are stated in the opinion.

      Elbridge T. Gerry for appellant.
    Where the merits of a ease have once been inquired into before the committing magistrate and the commitment made the appellate tribunal will not review the facts, but confine itself to errors appearing on the face of the commitment. (People, ex rel. v. Sisters of St. Dominick, 1 How. Pr. [N. S.] 132; In re Moses, 13 Abb. N. C. 189.) The child was properly committed under the Penal Code, which does not require any notice to be given. (Laws of 1882, chap. 410 ; Laws of 1884, chap. 46, §§ 5, 6; amending §§ 291, 292 of Penal Code; People, ex rel., v. Catholic Protectory, 61 How. Pr. 445.) ,

      F. R. Coudert for respondent.
    The child was not one of those the Catholic Protectory is authorized to receive under commitment. (Penal Code, § 291; Laws of 1882, chap. 410, §§ 1619, 1621, 1622; People, ex rel. v. N. Y. Juvenile Asylum, 12 Abb. Pr. 95.) Under the commitment made by virtue of section 291 pf the Penal Code, reference must be had to the law governing the institution in order to ascertain whether it is authorized to receive the particular child committed.' (In re Moses, 13 Abb. N. C. 196; People, ex rel. v. N. Y. Juvenile Asylum, 12 Abb. Pr. 95; Code of Crim. Pro., § 887, subd. 8.) A law which allows a child to be taken from its parents and committed to an institution during its minority, without notice to the parents or an opportunity for them to be heard, violates the constitutional principle which allows to all citizens the “ enjoyment of life, liberty and pursuit of happiness.” (Bartemeyer v. Iowa, 18 Wall. 136, 139, 140; Butcher's Union Co. v. Crescent City Co., 111 U. S. 746; People v. Marx, 99 N. Y. 377.)
   Finch, J.

A police justice of the city of Hew York, on the. 5th day of Hovember, 1884, committed John Van Heck, a boy of the age of nine years, to the Catholic Protectory, for begging in the streets, in violation, as the commitment asserted, of the Consolidation Act of 1882, of the Penal Code, and of the Code of Criminal Procedure. Under which of these acts the magistrate proceeded he did not at all determine, and we have no means of knowing. The commitment directed that the child should be and remain under the guardianship of the Protectory until therefrom discharged in manner prescribed by law.” There is no provision for' his discharge, unless the requirements of the charter of the Protectory, which determine how long he may be held by that institution, are unrepealed and remain applicable to the ease. More than twenty days after this commitment, and on the twenty-third day of the following December, a writ of certiorari, and on the fifteenth day of January in the next year, a writ of habeas corpus was issued to inquire 'into the detention of the child. The process was awarded upon the petition of the father, who alleged that the act of "the child in soliciting alms, if such act did occur, was not due to the petitioner’s neglect or misconduct, but that the child had been an attendant at the city schools from the 16th of April, 1884, to the 1st of November, 1884, just five days before he, with his mother, were arrested for beggary. He further alleged that the child had never been guilty of violating section 290 of the Penal Code, as recited in the warrant ; and that is admitted; the answer being that section 291 was intended, and the reference to section 290 was a clerical error. He further alleged that no notice, as required by law, was given to him, either by personal service or by posting in the station-house. As the mother was arrested with the child, and very probably herself committed, the father was left to miss his son and find what had happened to him as best he might be able. And then, upon discovering the facts, he is met by the contention of the Protectory that the commitment is final, and no notice to the father was requisite, and he had no right to be heard upon the question of the disposition of his child; and that is said to result from the effect of section 291 of the Penal Code, which is claimed to have made unavailing and inapplicable the wise and prudent provisions of the charter of the Protectory. That institution is a very worthy and commendable charity, intended primarily for the benefit of Catholic children, and to save them from suffering, and throw over them the care and protection of the Catholic church. (Laws of 1863, chap. 448.)

The New York Juvenile Asylum isa similar charity, having in its charter corresponding provisions as to notice, and intended primarily for the benefit of Protestant children. If a police magistrate of the city may commit a child of tender years found soliciting alms in the street, without notice to the parents, and giving them an opportunity to be heard, several results may follow. A boy, nine years old, may have begged in the street, without the knowledge of his parents, or any cause or occasion so far as they were concerned; be convicted without the least chance of defense or explanation; be sent to one or the other of these institutions permanently during his minority ; and without opportunity for redress. For the construction of the Penal Code which makes the commitment absolute and final and sweeps out a part of the terms on which the institution can receive and hold the child, must necessarily sweep them all out, and, among the rest, section 1623 of the Consolidation Act which directs the corporation when it shall be made to appear to its satisfaction that the child has been committed on insufficient cause, false or deficient testimony, or otherwise wrongfully or improvidently committed,” to discharge him from its custody. If not, an absolute commitment by the magistrate may be reversed by the Protectory. It may further result that, where the beggary and destitution were real and a commitment proper, the magistrate may ignorantly and innocently, or following the drift of his own denominational convictions, send the child of Catholic parents to be educated and brought up under Protestant influences, or the reverse. The provisions relating to the Protectory are found in the Consolidation Act and were substantially copied from the charter of the institution passed in 1863 and subsequent acts amending it. By section 1618 a magistrate of the city may send to the Protectory children between the ages of seven and fourteen found in any street or public place in circumstances of want and suffering or abandonment, exposure, or neglect, or of beggary,” and the form of commitment is prescribed. The child is to be conveyed to the house of reception established by said corporation,” and such child is to be there detained until removed or discharged as afterward provided. Section 1619 commands that “ immediately upon the making of such order the magistrate or court making the same shall deliver to a policeman of the city, especially detailed for that purpose, a notice, in writing, addressed to the father of such child, if its father be living and resident within the city, and if not, then to its mother if she be living and be so resident, and, if there be no father or mother of such child resident within the city, then addressed to the lawful guardian of such child, if any, or to the person with whom, according to the examination of the child and the testimony, if any, received by such magistrate or court, such child shall reside, in which notice the party to whom the same is addressed shall he informed of the commitment of such child to the house of reception of said corporation, and shall be notified that, unless taken therefrom in the manner prescribed by law within twenty days after the service of such notice, the child therein named shall he committed to the asylum of said corporation.” Section 1620 provides for the personal service of the notice and, if that has proved impossible, then for a substituted service by posting a notice, the form of which is prescribed, in the police station nearest the alleged residence of the child. By section 1621 if, within the twenty days, the parent or other person shall prove to the satisfaction of the committing magistrate that the suffering or destitution have not been occasioned by the habitual neglect or misconduct of the parents or guardian, the magistrate is required to order the child to be discharged; but by section 1622 it is directed that, in case no such proof is made or nobody appears, the magistrate shall transmit to the superintendent of the Protectory a notice to that effect, whereupon the child shall be removed to the asylum of the corporation. Section 1623 we have already referred to as providing for a discharge by the corporation, not only when satisfied that the commitment was without due cause, but whenever circumstauces after occurring render it proper or expedient.

It is obvious that these provisions relate not to a case of crime, but one of misfortune on the part of the child and often of the parents. They result in depriving the latter of their children, to whose care and custody they have a natural right, and the injustice of doing so without giving them opportunity to be heard, and to show the real facts, is sedulously avoided. All this wisp and careful provision results in a double opportunity of the parent to be heard. During the twenty days he may satisfy the magistrate that the begging was no fault of his, and after the twenty days he may apply to the Protectory. The section of the Penal Code which is said to override and change all this is as follows. After describing the children to whom it applies as those begging, homeless orphans or children of criminals, frequenting the company and dens of thieves and prostitutes, it authorizes the court or magistrate to commit the child to any charitable, reformatory, or other institution, authorized by law to receive and take charge of minors, or make any disposition of the child such as now is or hereafter may be authorized in the cases of vagrants, truants, paupers or disorderly persons. There is nothing in this section which repeals by implication any of the provisions of the Consolidation Act. It authorizes a commitment. As the General Term suggest, it does not say it shall be absolute, final, unconditional. Most clearly it means that the magistrate, knowing the authority of the different institutions to receive and retain, and the existing limitations upon that authority, may select from among them that which he deems most fitting.- The •enactments can be read together and easily stand together without the least clash or conflict, and where that, can be done our duty is to reconcile them and give to each its operative force. A further rule of construction points to the same result. The provisions of the Consolidation Act defining the authoi’ity of the Protectory are local and special, confined to the city of New York, and having respect to its situation and needs. The provision of the Penal Code is general and applies to the State at large. It is the uniform rule that such a special and local act is not repealed or modified by the later general one, unless some specific words plainly disclose that intention. We are bound to apply these rules, and especially so in a class of cases which involve questions of personal liberty and parental control. A construction which stands upon the Penal Code alone and rejects the influence and modifying effect of the charters is very clearly shown to be inadmissible by an illustration suggested by the learned counsel for the respondent. Under section 1466 of the Consolidation Act, certain females over fourteen and under twenty-one may be committed to the Protestant Episcopal House of Mercy or the Roman Catholic House of the Good Shepherd. These institutions answer the sole description of the Penal Code as “ authorized by law to receive and take charge of minors,” and so, on the construction claimed, this boy might have been lawfully committed to one of those institutions. The same thing would be true, as it respects the Hew York Infant Asylum, which is authorized to receive children of two years or under; and as it respects the American Female Guardian Society, which receives girls under fourteen and boys under ten. Could a boy over fourteen but under sixteen be committed to this latter institution by force of the Code ? Institutions abound by whose fundamental law they are fitted and adapted to each of the varying forms of misfortune and vice. Does the Penal Code disregard this fitness and adaptation and mean to substitute for it the unlimited discretion of a magistrate?

The learned counsel for the appellant put stress upon the alternative provisions of section 291, which permit the magistrate to commit the child to a charitable institution, or “ make any disposition of the child, such as now is or hereafter may be authorized in the cases of vagrants, truants, paupers or disorderly persons.” Different classes of children are brought within the section and obviously require very different treatment. These are children found begging; those who are homeless; destitute orphans; children of convicted criminals, living with them; and those frequenting concert and liquor saloons, or associating with thieves and prostitutes. If the Penal Code means that a child who is merely homeless, or a destitute orphan may be punished as a disorderly person, it is extremely harsh and unjust. But its meaning is much more sensible. The section itself provides that the child must be proceeded against, as a vagrant, disorderly or destitute child,” and whichever is selected as the ground of complaint must be supported by the proper and competent proof. The complaint here, and its proof, was not that the child was disorderly or destitute, but that it was a vagrant. Under the Eevised Statutes a child found begging was classed with vagrants and sent to the county house or the alms-house till discharged by the superintendents of the poor, and without notice to the parent, as it is said may be clone now. (1 E. S. 633, § 4; Code of Crim. Pro., §§ 887, 893.) But in such case the child passes into the custody of public officers authorized to discharge, and as public officers amenable-to authority, and naturally anxious to lessen the public burden at the earliest opportunity. When in such a case a private charity was substituted as the custodian, whose officers are but individuals, and governed by their own charter instead of the public law, it is not to be supposed that restrictions and limitations, prudently and carefully interposed to fit the emergency, were intended to be taken away, and suddenly and without reason deemed unnecessary. We are impressed with the conviction that the sole effect of the first alternative contained in section 291 is to permit the magistrate who, theretofore; under the Consolidation Act, could commit the destitute child to but one of three specified institutions, to commit such child to any charitable or reforma-a tory institution authorized by law tó take charge of minore, but in every case the institution so authorized was left to take and hold the child for the time and in the manner and under the regulations prescribed by its fundamental law.

The order should be affirmed.

All concur, except Eael, J., not voting.

Order affirmed.


author: Ruger, Ch. J.

text:
    The Steuben County Bank, Respondent, v. John L. Alberger et al., Appellants.
    Where a member of a firm, who had charge of its financial business, took up firm notes by giving in exchange therefor notes of a third person, indorsed by him in the firm name, which indorsement was without the knowledge of his partner,—Held, that the indorsement was within the authority of the partner making it; and that the firm was liable thereon.
    (Argued December 9, 1885;
    decided January 19, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made April 26, 1879, which affirmed a judgment in favor of plaintiff, entered upon the report of a referee.
    This action was against defendants as members of the firm of J. L. Alberger & Co., upon indorsements in the name of that firm upon notes made by S. W. Mash, payable to the order of the firm, which indorsements were made by one of the members of the firm.
    The material facts are stated in the opinion.

      ■John Campbell Uabbell for appellants.
    Plaintiff, not being a bona fide holder without notice, cannot invoke the presumption that the paper was issued within the scope of the partnership business. (Fielden v. Lahens, 6 Abb. [N. S.] 341; Stall v. Catskill Bk., 18 Wend. 478; Bk. of Rochester v. Bowen, 7 id. 158; Joyce v. Williams, 14 id. 141; Gansevoort v. Williams, id. 133.)

      Spencer Clinton for respondent.
   Ruger, Ch. J.

The sole ground of error alleged, in the judgment appealed from is, that there was not sufficient evidence to sustain the finding of the referee, that John L. Alberger was authorized to use the firm name of J. L. Alberger & Co., as accommodation indorser upon the notes of S. W. Mash. The findings of the referee, as well as the proof, showed that on the 4th day of Movetnber, 1873, the plaintiff held two notes for $5,000 each, made by J. L. Alberger & Co., and upon which they were unquestionably liable, as principal debtors. One of said notes was past due and unpaid, and the notes in suit were made by S. W. Mash and indorsed by J. L. Alberger & Co., for the purpose of retiring the former ones, and they were used in doing so. The notes for $5,000 each, held by the plaintiff as described, were made by J. L. Alberger on behalf of his firm; and exchanged with said ¡Nash for his notes of a similar date and amount for the purpose of enabling Nash to borrow money thereon, and he did obtain the money on them from the plaintiff. Said Nash and the firm of J. L. Alberger & Co. both resided and carried on business at Buffalo, and had been for several years prior to the execution of the notes in suit, in the habit of exchanging notes with each other, for their respective accommodations. Samuel F. Alberger had knowledge of this course of business, and so far as appears, approved the same. It farther appeared that John L. Alberger had charge of the financial business of his firm, gave its notes and provided funds for their payment, borrowed money and notes for its accommodation, and attended generally to the business of raising funds, with which to meet its obligatians. Under these circumstances the notes in suit were indorsed in the firm name by John L. Alberger without the knowledge of his partner, Samuel F. Alberger, for the purpose stated.

We do not doubt but that the making of the indorsements in question, was entirely within the general authority of the financial partner of the firm, to provide funds to meet its liabilities. The "notes for which those in suit were exchanged were given by the firm for value, and constituted obligations, upon which the firm were unquestionably liable; and in making the indorsements in question in the firm name, John L. Alberger was simply performing the duty which he had always exercised in the management of the affairs of the firm, of providing funds to meet its liabilities. The notes in suit were actually used in retiring the obligations of the firm, and, so far as the case showed, no limitation was ever placed upon the power of John L. Alberger to provide funds for such a purpose. In this case he procured the extinguishment of their liability as principal debtors by substituting therefor a conditional liability as indorsers, and imposed the primary duty of paying the indebtedness upon another; and such an exercise of power was, we think, within the authority previously exercised by him as the financial member of the firm. (Commercial Bank of L. E. v. Norton, 1 Hill, 501.)

The judgment should be affirmed.

All concur.

Judgment affirmed.


text:
    Abram Wakeman, Jr., et al., Appellants, v. The Wheeler & Wilson Manufacturing Company, Respondent.
    The parties entered into a contract by which defendant agreed that, if plaintiffs should succeed in selling fifty of the defendant’s sewing machines to one firm or party in Mexico, during a trip of their agent about to be made, for every fifty machines so sold they should have the sole agency for the sale of said machines in that locality, and defendant agreed to furnish the machines. Plaintiffs’ agent made two sales of fifty machines to persons in different localities in Mexico under an agreement that the purchaser should be the sole agent for the sale of the machines in ’that locality; one of the orders defendant filled, the other it refused, and refused to fill further orders from plaintiffs or their agents, and repudiated the contract. In an action to recover damages for breach of the contract, held, that plaintiffs were not confined to the damages sustained by reason of the refusal of the defendant to fill the orders actually given, but were entitled to recover such damages as they could show they had sustained by a total breach of the contract; i. e., the value of the contract, not merely imaginary or speculative damages, but such as were reasonably certain, and such only as actually followed or might follow from such breach, such as a jury could determino approximately upon reasonable conjecture and probable estimates.
    A person violating a contract should not be permitted entirely to escape liability because the amount of the damage he has caused is uncertain.
    Prospective profits, so far as they can properly be proved, and which would certainly have been realized but for defendant's default, are alowable as damages, although the amount is uncertain.
    The rule that damages which are contingent and uncertain cannot be recovered embraces only such as are not the certain result of the breach, not such as are the certain result but uncertain in amount.

      The authorities on the subject of the allowance of prospective profits as damages collated and discussed.

      Howe Machine Oo. v. Bryson (44 Iowa, 159), disapproved.
    Plaintiff offered to show on the trial, that, subsequent to the repudiation of the agreement, defendant established agencies in Mexico, and the number of machines sold through them. This was excluded. Held error.

      'Bu.t held, that the opinions of witnesses as to the value of the agreement, the profits which it, or any agency established in pursuance of it, could produce, the damages realized, and as to the number of machines they could have sold, were properly excluded.-

      Taylor v. Bradley (39 N. Y. 129), limited.

      Mitchell v. Bead (84 N. Y. 556), distinguished.
    (Argued December 11, 1885;
    decided January 19, 1886.)
    Appeal from judgment of the General Term of the Oourt of Common Pleas in and for the city and county of Yew York, entered upon an order made March 15, 1883, which affixed a judgment in favor of plaintiffs, entered upon a verdict, and affirmed an order denying a motion for a new trial.
    This action was brought to recover damages for an alleged breach of contract, the substance of which as well as the material facts are set forth in the opinion.

      Abram Wakeman, for appellants.
    The plaintiffs are entitled to recover as damages the value of their contract; that is, what such a privilege as was conferred by their contract, under all the circumstances, was fairly worth. (Taylor v. Bradley, 39 N. Y. 129, 144; Griffin v. Colver, 16 id. 494.) If there is no more certain method of arriving at the amount, the injured party is entitled to submit to the jury the particular facts and'to show the whole situation which is the foundation of the claim and expectation of profit, so far as any detail offered has a legal tendency to support such claims. (1 Suther. on Dam. 113.)

      William H. Williams for respondent.
    The alleged contract between the plaintiffs and defendant was by paroi, and was not, by its terms, to be performed within one year from the making thereof, and was, therefore, void. (2 R. S. 136, § 2;
      Oddy v. James, 48 N. Y. 685; Dung v. Parker, 52 id. 494; Childs v. Warren Chem. Manfg. Co., 13 Weekly Dig. 59.) Defendant’s agreement to furnish the plaintiffs’ machines at the lowest net gold prices was a contract for the sale and supply of machines, and was void because no note or memorandum in writing was made. (2 R. S. 136, § 3; Cook v. Millard, 65 N. Y. 352.) The jury having found that there was an agreement as alleged, which defendant had violated, the measure of damages was the profits lost on actual sales made by plaintiffs. Estimates of probable sales furnish no proper criterion for fixing damages. (Washburn v. Hubbard, 6 Lans. 1; Griffin v. Colver, 16 N. Y. 489; Blanchard v. Ely, 21 Wend. 342; Mitchell v. Cornell, 44 N. Y. Supr. Ct. 401; Masterton v. Mayor, etc., 7 Hill, 62; White v. Miller, 71 N. Y. 118; Hamilton v. McPherson, 28 id. 77; Morey v. Mut. Gas-light Co., 38 Supr. Ct. 189; Schooner Lively, 1 Gall. 315; Washburn v. Hubbard, 6 Lans. 14; Cassidy v. Lefevre, 45 N. Y. 562.) The plaintiffs cannot recover for loss of custom not specially alleged in their complaint. (Stapenhorst v. Am. Mfg. Co., 15 Abb. [N. S.] 355; Shipman v. Burrows, 1 Hall, 442; Low v. Archer, 12 N. Y. 282; Vanderslice v. Newton, 4 id. 130.) The contract being in part executory, plaintiffs were not entitled to recover damages for defendant’s refusal to deliver the machines, unless they alleged in their complaint and proved on the trial that they had performed, or offered to perform, the conditions of the sale on their part. (Chitty on Cont. [10th Am. ed.] 467; Benj. on Sales, 638, § 562; Cutler v. Powell, 3 Smith’s Lead. Cas. [note to Am. ed.] 23.) Any effect the termination of the agreement as to the sale of sewing machines might have on the plaintiffs’ original business is toe^remote for a basis for damages in this action. (Griffin v. Colver, 16 N. Y. 489; Hamilton v. McPherson, 28 id. 77; Cassidy v. Le-Fevre, 45 id. 562.) Sales the plaintiffs could have made and were prevented from making by the act of defendant are special damages, and to be recovered they should have been alleged; not having been, they cannot be proved. (Stapenhorst v. Am. Mfg. Co., 15 Abb. [N. S.] 355.)
   Earl, J.

This action was brought to recover damages for the breach of an agreement made in the city of New York in February, 1878, which is set forth in the complaint as follows: That if the plaintiffs shall succeed in placing, that is to say, selling, fifty of the defendant’s sewing machines to one firm or party in the Republic of Mexico during the next trip of their agent to that country then about to be made, they, the plaintiffs, for every fifty machines so sold shall have the sole agency for the sale of the defendant’s sewing machines in that locality and its vicinity in that Republic, and the defendant should furnish to the plaintiffs machines at the lowest net gold prices.” The defendant denied the agreement, but the jury found it substantially as alleged; and it is conceded that we must assume here that such an agreement was made. The plaintiffs at once entered upon the performance of the agreement, purchased a sample machine of the defendant, caused their agent to be instructed in its mechanism and management, and then sent him to Mexico. After reaching there he sold fifty machines to one Mead of San Louis Potosí, on his promise to Mead that he should be the general agent of the defendant for that locality and its vicinity. The order for the fifty machines was sent to the defendant and filled by it, and those machines were forwarded to Mexico and paid for. Shortly thereafter plaintiffs’ agent made another sale of fifty machines for another locality in Mexico, and an order for those machines was sent to defendant, which it absolutely refused to fill. Plaintiffs’ agent procured another order for one machine and sent that to the defendant, which it also refused to fill; arid then it refused to fill any further orders from the plaintiffs or their agents, and absolutely refused to perform and repudiated its agreement. Upon the trial of the action the plaintiffs made various offers of evidence to show the value of their contract with the defendant, the most of which were excluded. In his charge to the jury the judge held as matter of law that the plaintiffs could recover damages only for the refusal of the defendant to fill the orders actually given; and the plaintiffs’ profits having been -shown to be $4 on a machine, their recovery was thus limited to $204. They excepted to the rule of damages thus laid down, and the sole question for our determination is what, upon the facts of this case, was the proper rule of damages? Were the plaintiffs confined to the damages suffered by them in consequence of the refusal of the defendant to fill the two orders for fifty-one machines, or were they entitled also to recover the damages which they sustained by a total breach of the agreement on the part of the defendant? The judge limited the damages, as stated in his charge, because any further allgwance of damages for the breach of the agreement would, as he claimed, be merely speculative and imaginary.

It is frequently difficult to apply the rules of damages and to determine how far and when opinion evidence may be received to prove the amount of damages; and the difficulty is encountered in a marked degree in this case. One who violates his contract with another is liable for all the direct and proximate damages which result from the violation. The damages must be not merely speculative, possible and imaginary, but they must be reasonably certain, and such only as actually follow or may follow from the breach of the contract. They may be so remote as not to be directly traceable to the breach, or they may be the result of other intervening causes, and then they cannot be allowed. They are nearly always involved in some uncertainty and contingency; usually they are to be worked out in the future, and they can be determined only approximately upon reasonable conjectures and probable estimates. They may be so uncertain, contingent and imaginary as to be incapable of adequate proof, and then they cannot be recovered because they cannot be proved. But when it is certain that damages have been caused- by a breach of contract, and the only uncertainty is as to their amount, there can rarely be good reason for refusing, on account of such uncertainty, any damages whatever for the breach. A person violating his contract should not be permitted entirely to escape liability because the amount of the damages which he has caused is uncertain^ It is not t rue "that loss of profits cannot be allowed as damages for a breach of contract. Losses sustained and gains prevented are proper elements of damage. Most contracts are entered into with the view to future profits, and such profits are in the contemplation of the parties, and so far as they can be properly proved, they may form the measure of damage. As they are prospective they must, to some extent, be uncertain and problematical, and yet on that account a person complaining of breach of contract is not to' be deprived of all remedy. It is usually his right to prove the nature of his contract, the circumstances surrounding and following its breach, and the consequences naturally and plainly traceable to it, and then it is for the jury, under proper instructions as to the rules of damages, to determine the compensation to be awarded for the breach. When a contract 'is repudiated the compensation of the party complaining of its repudiation should be the value of the contract. He has been deprived of his contract, and he should have in lieu thereof its value, to be ascertained by the application of rules of law which have been laid down for the guidance of courts and jurors.

These rules will be illustrated. and limited by a few cases, some of which are quite analogous to this, to which attention will now be called. In Masterton v. Mayor, etc. (7 Hill, 61), Nelson, Ch. J., said: “ When the books speak of the profits anticipated from a good bargain as matter too remote and uncertain to be taken into the account in ascertaining the true measure of damages, they have reference to dependent and collateral engagements entered into on the faith and in expectation of the performance of the principal contract. * * * But profits or advantages which are the direct and immediate fruits of the contract entered into between the parties stand upon a different footing * * * It is difficult to comprehend why, in case one party has deprived the other of the gains or profits of the contract by refusing to perform it, this loss should not constitute a proper item in estimating the damages.” In Bagley v. Smith (10 N. Y. 489), it was held that one partner could maintain an action at law against the other for a breach of the partnership articles in dissolving before the period therein limited ; that the damages in such an action are the profits which would have acerued to the plaintiff from the continuation of the partnership business and which are lost by the unauthorized dissolution, and that evidence of the actual gains of the partnership during its continuance is admissible as an element in determining the value of the prospective profits. Johnson, J., writing the opinion said: “ The object of commercial partnerships is profit. This is the motive upon which men enter into the relation. The only legitimate beneficial consequence of continuing a partnership is the making of profits. The most direct and legitimate injurious consequence which can follow upon an unauthorized dissolution of a partnership is the loss of profits. Unless that loss can be made up to the injured party it is idle to say that any obligation is imposed by a contract to continue a partnership for a fixed period. The loss of profits is one of the common grounds, and the amount of profits lost one of the common measures of the damages to be given upon a breach of contract,” and that it is very true that there is great difficulty in making an accurate estimate of future profits. This difficulty is inherent in the nature of the inquiry. We shall not lessen it by shutting our eyes to the light which the previous transactions of the partnership throw upon it. ÍTor are we the more inclined to refuse to make the inquiry by reason of its difficulty, when we remember that it is the misconduct of the defendant which has rendered it necessary.” In Taylor v. Bradley (39 N. Y. 129), the action was to recover damages for the total breach by the defendant of a contract to let a farm to the plaintiff for three years, each party to furnish part of the stock, seeds, tools, etc., the plaintiff to occupy and work the farm and have certain specified supplies for his family, and all proceeds to be divided equally, and it was held that the plaintiff was entitled to recover as damages the value of the contract, that is, what such a privilege of occupancy and working the farm, subject to the conditions of the agreement and under all the contingencies which were hable to affect the result, was worth. Woodrüff, J., writing the opinion, said: To my mind the only rule which will do justice to the parties is that the plaintiff is entitled to the value of his contract; he was entitled to its performance; it is broken; he is deprived of his adventure; what was this opportunity which the contract had apparently secured to him worth ? To reap the benefit of it he must incur expense, submit to labor and appropriation of his stock. His damages are what he lost by being deprived of his chance of profit.” An opinion in the same case by Judge G-roveb is reported in 4 Abb. Ct. of App. Dec. 363, in which he said: An examination of the cases will show that the courts have been endeavoring to establish rules by the" application of which a party will be compensated for the loss sustained by the breach of the contract; in other words, for the benefits and gains he would have realized from its performance, and nothing more. It is sometimes said that the profits that would have been derived from performance cannot be recovered; but this is only true of such as are contingent upon some other operation. Profits which would certainly have been realized but for the defendant’s default are recoverable. * * * It is not an uncertainty as to the value of the benefit or gain to be derived from performance, but an uncertainty or contingency whether such gain or benefit would be derived at all. * * * It is sometimes said that speculative damages cannot be recovered because the amount is uncertain; but such remarks will generally be found applicable to such damages as it is uncertain whether sustained at all from the breach. Sometimes the claim is rejected as being too remote. This is another mode of saying that it is uncertain whether such damages resulted necessarily and" immediately from the breach complained of. The general rule is that all damages resulting necessarily and immediately and directly from the breach are recoverable, and not those that are contingent and uncertain. The latter description embraces, as I think, such only as are not the certain result of the breach, and does not embrace such as are the certain result, but uncertain in amountthat “ the plaintiff will be fully compensated by recovering the value of his bargain. He ought not to have more, and I think he is not precluded from recovering this by any infirmity in the law in ascertaining its amount.” In Schell v. Plumb (55 N. Y. 592), it was held that an agreement by one party to support another during life is an entire continuing contract, and that'upon a total breach thereof the latter may recover full and final damages, not only the expenses of support up to the time of trial, bat all the prospective expenses during life, and that the ¡Northampton Tables are competent evidence as to the probable duration of life. Grover, J., writing the opinion, said: “ The counsel for the appellants insists that such cannot be the rule, for the reason, as he insists, that it is impossible to ascertain the damages, as the duration of life is. uncertain, and a further uncertainty arising from the future physical condition of the person. * * * * It may be. further remarked that in actions for personal injuries the constant practice is to allow a recovery for such prospective damages as the jury are satisfied the party will sustain notwithstanding the uncertainty of the duration of his life and other contingencies which may probably affect the amount.” In Dennis v. Maxfield (10 Allen, 138), it was held that if a written contract by which the master of a whaling ship is employed provides that he shall have a certain lay” in the proceeds and also an additional compensation depending upon the amount of the cargo, and he is wrongfully discharged by the owners before the expiration of the contract, he may recover as a part of his damages his share of the earnings of the ship both before and after his removal. Bigelow, Gh. J., writing the opinion and speaking of the earnings of the ship, said: “ They are undoubtedly in their nature contingent and speculative and difficult of estimate, but being made by express agreement of the parties of the essence of the contract, we do not see how they can be excluded in ascertaining the compensation" to which the plaintiff is entitled. Would it be a good bar to a claim for damages for breach of articles of copartnership that the profits of the contemplated business were uncertain, contingent and difficult of proof, and could it be held for this reason that no recovery could be had in case of a breach of Such a contract ? Or in an action on a policy of insurance on profits, would it be a valid defense in the event of loss to say that no damages could be claimed or proved because the subject of insurance was merely speculative, and the data on which (he profits must be calculated were necessarily inadequate and insufficient to constitute a safe basis on which to rest a claim for indemnity ? ”

In Simpson v. London & N. W. R. Co. (L. R., 1 Q. B. D. 274), the plaintiff, a manufacturer, who was in the habit of attending agricultural shows to exhibit samples of his goods, and made profit by the practice, delivered them upon a show-groun d where he had been exhibiting them, to the receiving agent of the defendant, a railroad company, to .be carried by a particular day to a showground at another place where a similar show at which he intended to exhibit was to be held ; but nothing was expressly said about the intention of the plaintiff. The samples did not arrive until after the day stipulated and when the show was over; and the plaintiff lost several days in going to meet them and waiting for them. In an action for the breach of contract a verdict was given for damages which included a sum for loss of time or loss of profit; and it was held that the purpose of the plaintiff to exhibit was within the contemplation of the parties to the contract; that the plaintiff was entitled to the damages, on the ground that loss of profit was a natural and probable result of the failure of that purpose; and that no evidence was necessary of his prospect of making profit at the particular show in question; Oockburn*, 0. J., said : “As to the supposed impossibility of ascertaining the damages, I think there is no such impossibility; to some extent, no doubt, they must be matter of speculation, but that is no reason for not awarding any damages at all.” Mellok, J., said: “As to the difficulty of ascertaining the amount of profits which the plaintiff can he supposed to have lost, that is not a matter upon which we have to trouble ourselves.” Field, J., said: “As to the difficulty of ascertaining the profits which the plaintiff can be considered to have lost, a sufficient answer is that it must be assumed that the plaintiff would make some profits.” In Jaques v. Millar (L. R., 6 Ch. Div. 153), the plaintiff agreed with the defendant to take a lease of premises belonging to defendant for the purpose, as the defendant knew, of carrying on a trade which the plaintiff was about to commence. In consequence of the defendant’s willful refusal to fulfill his agreement, the plaintiff was unable for fifteen weeks to commence his trade ; and it was held that, in addition to judgment for specific performance of the agreement, damages must be awarded in respect to plaintiff’s loss of profits from his work during the fifteen weeks ? To the same effect are the following cases: (White v. Miller, 71 N. Y. 118; Mitchell v. Read, 84 id. 556; Danolds v. State, 89 id. 36; Hoy v. Gronoble, 34 Penn. 9; Garsed v. Turner, 71 id. 56; McNeil v. Reid, 9 Bing. 68; Fletcher v. Tayleur, 17 C. B. 21.)

In conflict, we think, with these authorities is the ease of Howe Machine Co. v. Bryson (44 Iowa, 159). In that case a party made a contract with the general agents of a sewing machine company, by the terms of which he was to rent a room, provide himself with a team, and furnish other necessary means for the sale of machines, and devote his time thereto, the agents agreeing to furnish him with all the machines he could sell at a price twenty-five per cent below the retail rate. The party performed his undertaking but the machines were not supplied as agreed; and it was held that the measure of damages was the value of the time lost as the result of the breach, without reference to the profits which might have been realised if the contract had been performed. Two of the five judges dissented, and we concur with them.

Under the Civil Damage Act (Chap. 646 of the Laws of 1873), and under the acts allowing the next of kin of one whose death has been caused by the wrong or carelessness of another to recover damages for such death, the amount of damages are exceedingly uncertain, problematical and contingent, and yet they must be left to the determination of a jury upon such facts as can he proved. (Etheringtqn v. R. R. Co., 88 N. Y. 641; Houghkirk v. D. & H. C. Co., 92 id. 219.)

It is quite clear that the rules of damages having the sanction of these authorities were violated upon the trial of this action. The plaintiffs had the right under their agreement to establish agencies for the sale of defendant’s machines anywhere in Mexico where they could sell fifty machines. An agency, when thus established, was to be exclusive, and was to have some permanency. It could not be broken up at the will of the defendant without some default on the part of the plaintiffs. That the agreement had some value to the plaintiffs is very clear, and of that value, whatever it was, they were deprived by the act of the defendant. It is quite true that that value, or in other words, the damage caused to the plaintiffs by the total breach of the agreement by the defendant, is quite uncertain and difficult to be estimated. But the difficulty is not greater than it was in several of the cases above cited. There are some facts upon which a jury could base a judgment, not certain nor strictly accurate, but sufficiently so for the administration of justice in such a case. The agent whom plaintiffs sent to Mexico was apparently intelligent, capable and well acquainted with Mexico. Machines could be delivered there, for about $30 per machine, and could then be sold at retail for about $125. The profit of the plaintiffs on each machine was about $1. Plaintiffs’ agents readily made sales of one hundred and one machines, and were about to make other sales. One of defendant’s agents subsequently sold in a single city twenty machines in six months, at $125 each. The plaintiffs had established two agencies, and to the value of such agencies at least they were entitled. Mead, who had one of the agencies, testified, that he had made arrangements with several parties to sell the machines; that he had all the facilities for carrying on an extensive and profitable business, and was well acquainted with the country. The population of several of the Mexican cities in which plaintiffs’ agent was engaged in establishing agencies was shown. From all these and other facts proved it cannot be doubted that the plaintiffs suffered damages to at least several hundred dollars, and they should not have been deprived of the damages which they made to appear because they could not make clear the full amount of their damages. AE the facts should have been submitted to the jury with proper instructions, and their verdict, not based upon mere speculation and possibüties but, upon the facts and circumstances proved, would have approached as near the proper measure of justice as the nature of the case and the infirmity which attaches to the administration of the law will admit. In 1 Sutherland on Damages, 113, it is said: “If there is no more certain method of arriving at the amount, th'e injured party is entitled to submit to the jury the particular facts which have transpired, and to show the whole situation which is the foundation of the claim and expectation of profits so far as any detail offered has a legal tendency to support such claim.”

The trial judge also erred in excluding evidence which would have given the jury some aid in estimating the damages. The plaintiffs made persistent efforts to show that subsequently to the repudiation of its agreement, the defendant established agencies in Mexico, and the number of machines sold through such agencies. This evidence was, upon the objection of the defendant, excluded. W e think it should have been received. It would have shown the market for these machines there, and the facility with which they could be sold, and would have had some tendency to show the extent of business the plaintiffs could have done there and the value of their agreement.

We think the opinions of witnesses as to the value of the agreement, as to the profits which it or any agency established in pursuance of it could produce, as to the damages plaintiffs realized, and as to the number of machines they could have sold, were properly excluded. This was not a case for expert or opinion evidence. There was no certain basis of facts proved, or facts assumed upon which an opinion could be based. The conflicting opinions of interested witnesses, selected because of their favorable opinions, instead of aiding the jury would probably add to their embarrassment. The safer rule in all such cases is to exclude opinions and receive the facts, and then leave the matter for the determination of the jury. They may not have any certain basis upon which to rest their judgments, but that cannot be helped. They are supposed to be disinterested and must apply their experience and common sense to the facts proved and reach the best results they can. Our views as to opinion evidence were so fully expressed in Ferguson v. Hubbell (97 N. Y. 507), that they need no restatement here. We have no means of knowing that the views expressed by Judge Woodruff in Taylor v. Bradley (supra), as to the proof of the damages, by the estimates of witnesses, were coincided in by Ms associates. They were not necessary to the decision of that case, and we are not prepared to assent to them. In Mitchell v. Reed (supra), the opinions of witnesses as to the value of certain leases, based upon certain facts assumed, were received. No question was made at any stage of that case that the opinions were not competent. The rule as to opinion evidence was liberally applied in that case, and we are inclined to think properly. There was some certain basis for the foundation of opinions by experts in reference to the worth of property which had salable value.

We have not considered the bearing of the statute of frauds upon this case, as no point or reference to it was made upon the trial.

Our conclusion, therefore, is that this judgment should be •reversed and a new trial granted, costs to abide event.

All concur.

Judgment reversed.