author: Per Curiam.

text:
    JOSEPH W. FISKE, Respondent v. JOHN J. ROGERS, et al., Appellants, Impleaded with Others, Respondents.

      Lien against moneys due a contractor, from the city of New York, filed and assigned to plaintiff and sought to be foreclosed by plaintiff.

      Held, that as to most of the lienors there is a fundamental consideration which disposes of the lien as to them. It was found below that the notices of lien filed by them were valid under section 1825 of chapter 410 of the Laws of 1882. That section requires that the notice shall state the amount of the claim and from whom due, whereas the notices stated in legal effect that the amount claimed was due by Rogers, the contractor with the city, under a contract made by Rogers through his agent, one Fortunato. The referee found that this was not in accordance with the facts; that Fortunato was not the agent of Rogers, and the contracts were made with Fortunato, who was a sub-contractor of Rogers. The notices, therefore, were not within the statute, and were not the foundations of liens, and the judgment rendered in favor of the plaintiff and defendants Smith & Brandell, and Curtis & Blaisdell, should be reversed and a new trial ordered. The notice of lien, filed by defendants Ritch was objected to on the ground that the contract made with Rogers was in reality made with a firm to which defendants succeeded. This matter was not open to litigation, for the appellants in their answer affirmatively allege that they entered into a contract with defendants Ritch to furnish stone as alleged in their complaint. This objection to the notice should not be sustained. The facts connected with the claim-of the defendants Ritch cannot be examined because it does not appearthat all the evidence is in the case that was settled, and the judgment as to the respondents Ritch should be affirmed.
    Before Sedgwick, Ch. J., Dugro and Gildersleeve, JJ.

      Decided March 14, 1892.
    Appeal from judgment entered upon the report of a referee.

      Dudley R. Horton, attorney and of counsel, for appellant Rogers.

      Leavitt, Wood & Keith, attorneys, and James Brooks Leavitt of counsel, for respondent Fiske.

      Kellogg, Rose & Smith, attorneys, and L. Laflin Kellogg of counsel, for respondents Ritch.

      Albert H. Atterbury, attorney and of counsel, for respondent Smith and others.

      S. D. Sewards, attorney and of counsel, for respondent Russo.
   Per Curiam.

The action was to determine the right of the parties, under notices of lien, to money due under a contract made with the city.

As to most of the lienors there is a fundamental consideration which will dispose of the appeal as to them. It Avas found below, that the notices of lien filed by them were valid under section 1825 of chapter 410, laws of 1882, vol. 2. That section requires that a notice shall state the amount of the claim and from whom due. Whereas, the notices now in Anew stated in legal effect that the amount claimed was due by Rogers, the contractor with the city, under a contract made by Rogers through his agent, one Fortunato. The referee found that this was not in accordance with the facts which were, that Fortunato was not the agent of Rogers, and the contracts were made with Fortunato, who was a sub-contractor of Rogers. The notices were, therefore, not within the statute, and were not the foundations of liens. The judgment that was in favor of the plaintiff, and the defendants Smith & Brandell, and Curtis and Blaisdell, should be reversed, and a new trial ordered, with a single bill of costs to abide the event.

The notice of lien, filed by defendants Ritch, was objected to on the ground that the contract made Avith defendant Rogers was in reality made with a firm to which the defendants Ritch had succeeded, but the notice stated that it was made with the defendants. This matter was not open for litigation. The appellants, in their answer, affirmatively allege that they entered into a contract with said defendants Ritch to furnish stone as alleged in their complaint.” The objection to the notice should not be sustained.

• The facts connected with the claims of the Ritches cannot be examined because it does not appear that all the evidence is in the case that was settled.

The judgment as to the respondents Bitch should be affirmed, with costs.

No ground has been claimed for reversing the judg- . ment in favor of Russo. It is, therefore, affirmed, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    JAMES SAXTON, Respondent v. THE NEW YORK ELEVATED RAILROAD COMPANY, et el., Appellants.

      Damages caused by elevated railroad—Hearsay evidence of statements of tenants as to physcial annoyance.

    In an action to recover an injunction and damages with respect to real property abutting upon a street occupied by defendants’ elevated railroad, the janitor of premises upon the same street was called as a witness for the plaintiff and testified, against objection, that the question called for hearsay evidence, that tenants objected to dirt and noise from the elevated railroad; that they cannot open the windows because if they do they get the dirt into the rooms in the best part of the house, in the front; and that such objections had been going on six or seven years. Held, that such evidence was hearsay and improperly received.
    Before Sedgwick, Ch. J., Dugro and Gildersleeve, ,JJ.

      Decided March 14, 1892.
    Appeal by defendants from a judgment entered upon decision of judge after trial at special term. The action was to recover an injunction and incidental damages by reason of defendants’ elevated railroad in Third avenue in the city of New York, with regard to abutting property owned by plaintiff. The trial judge awarded an injunction, fixed a sum as compensation which defendants might pay to plaintiff to obviate the same, and directed judgment for rental damages. The facts are sufficiently stated in the opinion.

      Davis & Rapallo, attorneys, and Arthur O. Townsend of counsel, for appellants.

      Peckham & Tyler, attorneys, and E. W. Tyler of counsel, for respondent.
   Per Curiam.

This is the usual action against the defendants to enjoin them from maintaining and operating their elevated road in front of plaintiff’s premises.

On the trial a witness was called who was the janitor of the building in question. He testified to a reduction of rent through a course of years. The counsel for plaintiff then asked what during these years have the tenants stated as the ground of their objections to their Third avenue rooms, and if so, have they given substantially the same objection or a variety of objections. The answer was, there is one objection, and they made objection referring to different objects—different things in connection with the elevated road. All the objections refer to the elevated. The objection was to dirt and noise from the elevated road ; they cannot open the windows, because if they do, they get the dirt in their rooms, in the best part of the bouse in-front.

The question that called out this testimony was validly excepted to, on the ground that the declarations of the tenants -were hearsay. The declarations did not accompany the tenants leaving apartments, and were not the statement of reasons for not taking them. In either of such cases there might be room to argue that the declaration was part of a transaction. They were but isolated utterances of different individuals not under oath or subject to cross-examinations.

There are some questions in this case which perhaps are like those on the same subject considered in the Boehm and Somer’s cases. These cases had not been decided at the time of the trial here. It is not necessary to pass upon the questions now, as the new trial will be had, under the cases in the Court of Appeals.

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


text:
    JOHN MORPIE, by Guardian ad litem, Respondent v. MANHATTAN BRASS COMPANY, Appellant.

      Security for costs.

    It did not appear in this case that the guardian ad litem, had filed security for costs, or that the plaintiff had obtained leave to sue as a poor person, therefore the defendant’s motion should have been granted.
    Before Sedgwick, Ch. J., Dugro and Gildersleeve, JJ.

      Decided March 14, 1892.
    This action was commenced on October 2, 1891.
    On October 16, 1891, defendant appeared, demanded complaint, and on the same day obtained order requiring plaintiff to give security for costs by paying into court two hundred and fifty dollars, or by filing an undertaking, or show cause October 23,1891, why he should not give security with an ad interim stay of proceedings.
    The plaintiff then gave notice of motion for leave to sue as a poor person.
    These applications were heard together on November 30, and on December 3 the justice hearing the motions denied the plaintiff’s motion for leave to sue as a poor person, and also denied the defendant’s motion for security for costs.

      The plaintiff did not appeal, but the defendant brings this appeal from the order denying its motion.

      Brownell & Lathrop, attorneys, and William G. Lathrop, Jr., of counsel, for appellant, argued:
    There having been no laches or delay, and the plaintiff’s application for leave to sue as a poor person having been denied, the defendant was entitled as a matter of right to security for costs. Code Civ. Pro., §§ 459, 469 and 3268 (all as amended by chap. 170, Laws of 1891); §§ 3271 and 3272. Whatever doubt existed before the amendments of chapter 170, Laws of 1891, is removed by those amendments. They give a defendant an absolute right to security. Before these amendments the following cases held this to be law. Meredith v. 42d St. and Grand St. R. R. Co., 1 Civ. Proc. R., 15n.; Healey v. 23d St. R. R. Co., 1 Ib., 15; Blake v. Dolan, 2 Law Bulletin, 14; Buckley v. Gutta Percha Manfg. Co., 3 Civ. Proc. R., 428; Churchman v. Merritt, 50 Hun, 270; Robertson v. Barnum, 29 Ib., 657; McDonald v. Peet, 7 Civ. Proc. R., 200; Weber v. Moog, 12 Abb. N. C., 108. The case of Steinberger v. Manhattan El. R. R. Co., 46 Superior Ct. Reports, 216, which seems in conflict with the above authorities, was decided by this court before subdivision 5 of § 3268 and § 3272 of chapter 12 of the Code of Civil Procedure took effect.

      Adam Finch, for respondent.
   Per Curiam.

The defendant’s right to security for costs depended upon section 3268 Code Civ. Pro., as amended by chapter 170, Laws of 1891. It says that a defendant may require security for costs to be given where the plaintiff is, when the action was commenced, subd. 5, an infant whose guardian ad litem, had not given such security excepting as otherwise provided in §§ 459 and 469 of the act. These sections refer to the right of an infant to obtain leave to prosecute as a poor person.

As in this case it did not appear that the guardian ad litem had filed security for costs, or that the plaintiff had obtained leave to sue as a poor person, the defendant’s motion should have been granted. The order appealed from is reversed and defendant’s motion below granted, with $10 costs.


text:
    JACOB B. TALLMAN, Respondent v. DANIEL J. SPRAGUE, Appellant.

      Judgment taken for want of answer—Motion to open the default—Terms.

    In this case the defendant asked the court to open this default and permit him to plead partial payment and usury, which the court denied unless the defendant gave a bond for the full amount of the note, with two sureties justifying in $5,000, which condition defendant claims to be onerous and deprives him of Ms defence, as he is unable to give such a bond. Held, that the affidavits in this case were too vague and uncertain to authorize the court to hold that usury was shown to have existed under the facts shown, especially when the form of the statements on this subject intimates that there are other facts not stated wMch would be relevant and should be considered before holding that there was a defence of usury.
    The' defendant also claimed that he had a defence of payment or partial payment by the giving of a note for about half of the amount of the note in action. If this note was given, it would not have been a payment. The defendant’s affidavit left it doubtful as to whether the note was ever given to plaintiff, while the affidavits of the plaintiff are to the effect that the note was not given. The court would have been justified in denying the motion absolutely.
    Before Sedgwick, Ch. J., and Gildersleeve, J.

      Decided March 14, 1892.
    • Appeal by defendant from order denying his motion to open a judgment taken for want of answer.

      J. Noble Hayes, for appellant, argued:—
    I. It is obvious that there is a serious issue between the parties as to the payment of $1,666, by the defendant, on account of the note in suit, which ought to be tried. It is equally obvious that the defendant has a meritorious defence of usury to the note in suit, which he could have availed himself of but for this “ snap judgment.” It is also obvious that the plaintiff overreached the defendant in obtaining the judgment of which the plaintiff had no knowledge until five weeks after the same was entered. And that the defendant was justified in believing that no further proceedings would be had in this action, or, at least, until the final disposition of the motion in the U. S. Court referred to, which was on Nov. 12th, 1892, fourteen days after the entry of the judgment.
    II. It is an abuse of discretion to deny this motion and impose such terms as leave the defendant at the mercy of the holder of this second note for $1,666, which he may thus be obliged to pay twice. The conditions are onerous, and weigh down and crush the defendant’s rights, and are tantamount to an absolute denial of the motion. The courts on appeal have disapproved onerous conditions imposed in opening defaults. In the case of Fox v. Baker, 2 Wend., 244, in setting aside an inquest, defendant was put under term of withdrawing a plea of the statute of limitations. This decision was disapproved in Allen v. Mapes, 20 Wend., 633, and Lovett v. Coroman, 6 Hill, 223. A case directly in point is Rice v. Maddock, 7 N. Y. Suppl., 632, C. P., when a default was ordered to be opened on defendant’s payment of costs of motion and giving of a bond to pay the judgment should it be affirmed, but she was unable to procure a satisfactory bondsman. Held, on appeal, that the default should be opened on plaintiff’s payment of costs of motion, and the giving of such bond as she is able to procure. See also, Hinz v. Starin, 25 State Reporter, 329.

      III. The order is appealable upon all grounds and the early cases to the contrary have been overruled. Security Nat. Bank v. Nat. Bk. Comm., 2 Hun, 287, where the court said : “ When a judgment has been obtained by default an order refusing to open it upon application made on affidavits showing merits, and a reasonable excuse effects a substantial right and is appealable.” Allen v. Mapes, 20 Wend., 633; Lovett v. Coroman, 6 Hill, 223; Rice v. Maddock, 7 N. Y. Suppl., 632 C. P.; Hinz v. Starin, 25 State Rep., 329.
    IV. The defence of usury is now regarded as a meritorious defence and entitled to the same consideration as all other legal defences. McQuen v. Babcock, 3 Keys, 428; Barnett v. Phillips, 10 Hun, 109; Bank of Kinderhook v. Gifford, 40 Barb., 659. Where Peckham, J. held : “ that on opening a default properly excused, this court will not impose as a condition that the defendant shall not set up usury or the statute of limitations.” The proper order would have required no terms under the circumstances of the case, or if any, only that the judgment should stand as security, and that costs of motion should be imposed, not that an impossible bond with sureties should be given.

      Michael Jacobs, for respondent, argued:—
    I. The order made was a discretionary one. The application was made under section 724 of the Code of Civil Procedure, which provides “ that the court may * * * in its discretion and upon such terms as justice requires * * * relieve a party from a judgment,” etc. The very language of the section describes the application as a discretionary one, and expressly provides “ that the terms upon which relief is to be granted rests with the judge to whom the application is made.”
    H. The order is not appealable. The order being discretionary, the terms on which it is made cannot be reviewed on appeal. Foshay v. Drost, 4 Bosw., 664; Jacobs v. Marshall, 6 Duer., 669; Lord v. Vanderburgh, 15 How., 362; Whitaker v. Des Forse, 7 Bosw., 678; Dorlan v. Wilson, 9 Civ. Pro. R., 69. And even if the order be regarded as appealable, there was no abuse of discretion, and in the absence of the same there is nothing to review.
   Per Curiam.

The defendant asked that the default be opened, that he might make the defence of usury. The affidavits were too vague and uncertain on this subject to permit it to be held that usury was shown. The mere fact of giving a note and then at its maturity another note for a greater amount, does not necessarily involve usury, especially when the form of the statement on the subject intimates that there are other facts not stated which would be relevant and should be considered before holding that there was usury.

The defendant also maintained that he had a defence of payment or partial payment. As to the first, the affidavits did not support it. The second was said to be the giving of the defendant’s note for about the half of the amount of the note in action. If given, this would not have been a payment. The defendant’s affidavits left it doubtful as to whether it was ever given to plaintiff. The affidavits of the plaintiff are to the effect that it never was.

The court would have been justified in denying the motion absolutely.

Order affirmed, with $10 costs.


author:
      McAdam, J.
     By the Court.—Dugro, J.

text:
    HENRY WEHLE, as Receiver, etc., Appellant v. JOHN Y. KOCH, as Executor, etc., Respondent. HENRY WEHLE, as Receiver, etc., Respondent v. JOHN V. KOCH, as Executor, etc., Appellant.

      Complaint, dismissal of—Answer, demurrer to, in same action, effect of.

    One of these appeals is by the defendant from an order sustaining plaintiff’s demurrer to part of the answer. The others are by. the plaintiff from an order striking out his amended complaint, and from a judgment dismissing his complaint. The plaintiff’s appeals are decided against him upon the opinion of the judge who dismissed the complaint.

      Held, that upon this action the result follows that the order sustaining the demurrer and the judgment thereon must be reversed, for on a demurrer to an answer the defendant may show that on the face of the record plaintiff is not entitled to a final judgment. When the complaint states no cause of action, even though the answer is insufficient, the defendant is entitled to judgment dismissing the complaint.
    Before Sedgwick, Ch. J., Gildersleeve and Dugro, JJ.

      Decided April 11, 1892.
    Appeal by plaintiff from an order striking out bis complaint and from the judgment entered thereon.
    Appeal by defendant from an order sustaining plaintiff’s demurrer to part of the answer and from the judgment entered therein.
    The facts and points in the. case in the first appeal fully appear in the opinion of the judge at special term, which is as follows :—
   McAdam, J.

"The in the hands of the defendant are held by him in trust under the will of John C. Koch. ' The trust is, therefore, one created by a person other than the judgment debtor (Code § 1879). A judgment creditor might, nevertheless, by bill in equity reach any surplus that had accumulated in the hands of the trustees, and provision might be made in the judgment determining what would be a reasonable alloAvance for the cestui que trust, and directing the application towards the judgment of any future surplus until the same is fully paid (Williams v. Thorn, 70 N. Y., 270; Wait on Fraud. Convey., §§ 45, 360); and a receiver appointed in supplementary proceedings may seemingly maintain such an action (McEwen v. Brewster, 19 Hun, 337, overruling previous decision in same case reported in 17 Hun, 223). But that is not the nature of the present suit. The complaint proceeds on the theory that the judgment debtor was entitled at the time action was commenced, as of right, to money more than sufficient to satisfy the plaintiff’s judgment, and the prayer is for an accounting and decree directing the defendant to satisfy the demand at once. It appears that John C. Koch, the testator, died February 7, 1888, and by the tenth clause of his will he gives to his son (the judgment debtor) a legacy of $10,000, to be paid in installments of $1,000 each year, the first to be paid in one year after the decease of the testator. Under this provision the judgment debtor became entitled to $1,000 February 7, 1889, $1,000 February 7, 1890, and $1,000 February 7,1891, in all $3,000. The complaint further alleges that the judgment debtor owed the testator at the time of his decease $1,829.15, and that the defendant paid the judgment debtor $1,827.10. The two sums, aggregating $3,656.25, exceed the installments due the judgment debtor when this suit Avas commenced; hence there was nothing owing to him or his receiver at that time. The legacy to the son did not discharge the debt he owed the testator, Rickets v. Livingston, 2 Johns. Cas., 97; Clark v. Bogardus, 2 Edw., 387, and cases collated in Redf. Surrogate’s Pr., 3 ed., 579. It was the duty of defendant, as executor, to first apply the debt pro tanto to the extinguishment of the legacy (Stagg v. Beekman, 2 Edw., at p. 92); and he could not postpone or avoid this duty. It is apparent, therefore, that an accounting cannot change these figures nor alter the result which follows. The plaintiff desired to amend his complaint by omitting, the allegations as to the debt. This would simply impose upon the defendant the duty of pleading and burden of proving the debt, which might be accomplished by reading in evidence the original complaint, in which its existence is affirmatively alleged (Fogg v. Edwards, 20 Hun, 90; Whitney v. Town, 53 Ib., 214); so that the amendment proposed has nothing of practical utility to commend it. The amendment could not alter the facts, and the application therefor will be denied and the complaint dismissed, without prejudice to a new action in suitable form at the proper time. Submit findings and order embodying the decision.”

Edward Grosse, for plaintiff, appellant and respondent, argued:—

I. The complaint alleges: That said defendant, as such executor, has now in his custody the amount of seven thousand nine hundred and thirty-five dollars and interest, the balance of said legacy in the tenth clause of the will mentioned, of which balance the sum of seven hundred and thirty-five dollars and interest is now due and payable by the terms of the tenth clause of said will, and the sum of sixty-five dollars became due on April 7 under the provisions of said agreement between Herman Koch and defendant, and has not been paid. There is no averment conflicting with this allegation, hut suppose there were, how can the plaintiff be deprived of his day in court to prove this allegation ?

II. The legacy to Herman Koch is an absolute gift to him, and the money due to him by defendant is his absolute property. The plaintiff can invoke the court to have his title to it recognized, whether it is payable now or later.

III. The plaintiff is entitled to an accounting by virtue of the fact that money belonging to his estate is in defendant’s custody.

William O. Campbell, for defendant, respondent and appellant, argued:

I. The complaint does not state facts sufficient to constitute a cause of action. The complaint alleges : (1.) A legacy by John C. Koch, the testator, to Herman Koch, the cestui que trust, of $10,000, payable in ten years in amounts of $1,000 in each year. (2.) An indebtedness by Herman Koch to said estate of $1,829.15. (3.) Actual payments by said trustee, defendant herein, to Herman Koch, of $1,827.10. This would leave the account as follows on March 7th, 1891:

Amounts actually paid by defendant to Herman Koch .....$1,827 10

Amount of Herman Koch’s debt to estate . 1,829 15

3,656 25

Amount due to Herman Koch under the will ... . . . . 3,000 00

Overdrawn by Herman Koch . . . $656 25

The complaint further alleges an agreement between trustee and cestui que trust, whereby the trustee was to pay Herman Koch $65 per month in cash, and credit balances on indebtedness every year for ten years. Such an agreement, if made, was void, as it was the duty of defendant as executor to first apply the debt pro tanto to the extinguishment of the legacy. Stagg v. Beekman, 2 Edw. Ch., 92. Further, the complaint alleges a trust created by a person other than the judgment debtor and seeks to reach the trust fund by this proceeding. This cannot be done. Code Civ. Pro., § 1879.

IT. Plaintiff cannot recover in this form of action. The trust herein is one created by a person other than the judgment debtor. The judgment creditor might, by a bill in equity, reach any surplus that had accumulated in the hands of the trustee, and provision might be made in the judgment determining what would be a reasonable allowance for the cestui que trust, and directing the application towards the judgment of any future surplus until the same is fully paid, and a Receiver appointed in supplementary proceedings may seemingly maintain such an action. Williams v. Thorn, 70 N. Y., 270; Wait on Fraud. Con., §§45, 360; McEwen v. Brewster, 19 Hun, 337. But that is not the nature of the present suit.

III. Plaintiff’s amended complaint was properly stricken out. The service of the amended complaint could have no other effect but that of delaying the action, and the defendant would have lost the benefit of a term. The Code of Civil Procedure provides for such contingencies, section 542. The only change made by the amended complaint was the omission of the allegation of debt due from Herman Koch to his father’s estate. This would merely impose upon the defendant the burden of alleging and proving the debt, which could be done by reading in evidence the orignal complaint in which the existence of the debt is affirmatively alleged under oath by the plaintiff. Fogg v. Edwards, 20 Hun, 90; Whitney v. Town, 53 Ib., 214.

IV. Where the complaint states no cause of action, even though the answer is insufficient, the defendant is entitled to judgment dismissing the complaint. Parsons v. Hayes, 14 Abb. N. C., 419; S. C., 50 Super. Ct., 49; Harvey v. Brisbin, 16 State Rep., 42, citing and following People v. Booth, 32 N. Y., 397, and Nixon v. Bentley, 7 How., 316; Genet v. Kissam, 53 Super. Ct., 43; Richard v. Brice, 13 State Rep., 728; Young v. Brice, 18 Ib., 945. See also, Van Alstyn v. Freday, 41 N. Y., 176, where same ground was taken when plaintiffs moved for judgment alleging that answer was frivolous and false.

By the Court.—Dugro, J.

Of these appeals one is by the defendant from an order sustaining plaintiff’s demurrer to part of the answer, and from the judgment entered thereon. The others are by the plaintiff from an order striking out his amended complaint, and from a judgment dismissing the complaint.

The plaintiff’s appeals are decided against him upon the opinion of the learned judge who dismissed the complaint. It follows, that the order sustaining the demurrer, and the judgment thereon, must be reversed, for on a demurrer to an answer, the defendant may show that, on the face of the record, plaintiff is not entitled to final judgment. Parsons v. Hayes, 50 N. Y. Super. Ct., 29; Genet v. Kissam, 53 Ib., 43.

Sedgwick, Ch. J., and Gildersleeve, J., concurred.


author: By the Court.—Dugro, J.

text:
    ELIZA W. WHITE, et al., Plaintiffs v. EDWARD M. BENJAMIN, Defendant.

      Usury must be proved by clear and positive proof, it is never presumed.

    The note, that is the subject of this action, was executed and delivered upon the surrender of a note given for a similar amount, and bearing date of January 1, 1884. The latter note was given for a note of same amount, bearing date of January 1, 1883. The evidence does not connect the last note with any preceding loan or note. On January 1, 1881, ’ a note of §100,000, payable in eighteen months from date, was delivered by defendant to plaintiffs. The evidence fails to connect this last note with the note in suit sufficiently to warrant any consideration for it or for any loans which are alleged to have preceded the same.
    Held, that any usury which is alleged to have tainted the loans which preceded the note last mentioned, is not connected by the evidence with the note in suit, and the defence of usury fails. In reference to the checks that were offered in evidence and claimed to represent payments of a portion of the profits of defendant’s business, the evidence does not warrant a finding that they were the result of a usurious agreement.
    Before Sedgwick, Ch. J., Dugro and Gildersleeve, JJ.

      Decided April 11, 1892.
    Motion by defendant for a new trial on exceptions to be heard in the first instance at the general term.

      Whitlock & Simonds, attorneys, and W. C. Beecher and Alex B. Simonds of counsel, for plaintiffs.

      Smith & Dougherty, attorneys, and J. Hampden Dougherty of counsel, for defendant.
   By the Court.—Dugro, J.

This action is upon a note for one hundred thousand ($100,000) dollars, dated January 1, 1885, payable in eighteen (18) months. The defence is usury. The exceptions were ordered to be heard in the first instance at general term.

It seems that the note, made the basis of this action, was given upon the surrender of one for a similar amount, dated January 1, 1884 •, and that the latter was given for one of a similar amount, dated January 1, 1883. The last note is not connected by the evidence with any preceding loan or note.

It appears that on January 1, 1881, a note of one hundred thousand ($100,000) dollars, payable in eighteen months, was delivered by the defendant to the plaintiffs. This note is not sufficiently connected with the note in suit to warrant its consideration, as that of the loans which are alleged to have preceded it. The usury, therefore, which is alleged to have tainted the loans which preceded the note last mentioned, is not connected by the evidence with the note in suit.

A question still remains with respect to the checks which were offered in evidence and which were claimed to represent payments of twenty per cent, of the profits of the defendant’s business. It may be said that the evidence does not warrant a finding that they were the results of a usurious agreement.

The exceptions to rulings upon the admissibility of evidence have been carefully examined and none of value found.

The motion for a new trial upon the exceptions must be denied and judgment ordered for the plaintiff upon the verdict.

Sedgwick, Ch. J., and Gildersleeve, J., concurred.


text:
    DAVID J. BOEHM, Respondent v. GEORGE P. LIES, et al., Appellants.

      Agreement in writing, its provisions and conditions cannot be varied or changed by oral evidence when it appears to be a complete agreement covering the obligations and duties of both parties thereto.

    The main qxxestion in this case is presented by the claim of defendants, that this agreement of January 9,1888, was partly oral and partly written. The oral part, as claimed, was, in effect, that the plaintiff shoxxld not compel an acceptance of the stock and payment therefor, until certain machines should prove to be perfect and practical. The agreement, as proved by the plaintiff, had a settled legal meaning as to time of performance, namely, within a reasonable time from its date; and this mean, ing was known to the parties and considered in the making of the contract. The law applies that meaning as effectively as though it appeared in express words, that performance was to be made within a reasonable time, and this legal implication cannot be rebutted by parol testimony tending to show another and a definite time for performance, because the admission of such testimony changes and varies the written contract and the terms and conditions there clearly expressed in writing.

      Held, that the written agreement, in evidence, is complete in itself. It covers the obligations and duties of both parties and leaves nothing unprovided for. If it is to be affected or controlled by evidence of the parol stipulation, alleged in the answer, its legal import as to time of performance will be varied and changed. It will not be as the law implies from the writing itself, a contract to be performed by the parties, within a reasonable time, but one to be performed when the machines were tried and perfected. The defendants sought to vary a written contract by oral evidence, and the court below very properly refused to permit the same.
    Before Dugro and Gildersleeve, JJ.

      Decided April 14, 1892.
    Appeal by defendants from a judgment entered upon the verdict of a jury, and from an order denying a motion to set aside the verdict.

      Wise & Litchtenstein, attorneys, and Morris S. Wise of counsel, for appellants.

      Leavitt & Keith, attorneys, and John Brooks Leavitt of counsel, for respondent.
   By the Court.—Dugro, J.

This is an appeal by the defendants from a judgment and an order denying a motion for a new trial.

The plaintiff’s claim was based upon a written agreement in the following terms, signed by the parties to this action:

“New York, Jan. 9, 1888.
“ In consideration of one dollar to each another in hand paid, David J. Boehm and George P. Lies & Co. agree to the following: That said David J. Boehm hereby agrees to deliver to said George P. Lies & Co. two hundred and fifty shares of stock of the North American Cigar Machinery Co., at the rates of thirty dollars per share, and said George P. Lies & Co. agree to accept from said D. J. Boehm said above mentioned shares of stock and pay to said Boehm the sum of seven thousand five hundred dollars for the two hundred and fifty shares of said stock.
D. J. Boehm.
“ Geo. P. Lies & Co.”

Having within a reasonable time tendered to the defendants the stock referred to in the agreement, the plaintiff demanded payment therefor, and upon its refusal brought this action.

The defendants, for a first defence, denied that the copy agreement set forth in the complaint is a truthful or accurate copy of the original agreement, and for a further defence, alleged that they were induced to sign the contract through the fraudulent representations of the plaintiff, and by a reliance upon an oral contemporaneous agreement whereby it was agreed that no time for the delivery of the stock should be specified, and that the defendants should be under no obligation to accept or pay for the stock until the machines would prove perfectly practical and thoroughly suited to do the work and effect the saving claimed for it by the plaintiff.

Upon the trial the defendants claimed the right to open the case to the jury and excepted to the denial of their claim.

The first defence contained in the answer is a denial that the agreement set forth in the complaint is a truthful and accurate copy of the original contract. This denial raised no issue. It does not, however, lie with the defendants to claim that this is so. The court took their action in interposing it to have been in good faith, accepted their claim, or representation that the matter set forth, if true, constituted a good defence, and proceeded with the trial accordingly. In the absence of a clear and positive disclaimer of this matter as a defence, they cannot be heard to complain, because the court in disposing of their motion accepted their view of its sufficiency. To hold otherwise would be to permit a defendant who has interposed a frivolous answer to gain an advantage thereby.

If the court was misled it was through the defendants’ action.

The main question in this case is presented by the claim that the agreement of January 9th was partly oral and partly written. The oral part, it is claimed, was, in effect, that the plaintiff should not compel an acceptance of the stock until the machines should prove perfect and practical.

I will assume that the defendants offered evidence tending to establish the oral part of the alleged agreement.

It seems to me that if the defendants are permitted to show an oral agreement providing for the time of payment to be otherwise than within a reasonable time, they would vary the terms of the written contract.

The written agreement had a settled legal meaning as to time of performance, and this meaning it must be presumed was known to the parties and considered in the making of the contract. The law implies as effectually as though it appeared in express terms, that performance was to be made within a reasonable time, and the implication cannot be rebutted by extrinsic testimony going to fix a definite term, because this varies the contract. Parsons on Contracts, vol. 2, p. 794; Atwood v. Cobb, 16 Pickering, 227. Thus, also, a written promise to pay money, no time being expressed, means a promise to pay it on demand, and evidence that a payment at a future day was intended is not admissible. Parsons on Contracts, vol. 2, p. 552.

The general rule which excludes parol evidence when offered to contradict or vary the terms or legal import of a written agreement is well settled. It has exceptions, and among them, claimed as pertinent, that the promisor may show that the instrument sued upon was executed in part performance of an entire oral agreement; that the rule has no application to collateral undertakings. Engelhorn v. Reitlinger, 122 N. Y., 76; Eighmie v. Taylor, 98 Ib., 288.

The writings which are protected from the effect of contemporaneous stipulations are those containing the terms of a contract between the parties, and designed to be the repository and evidence of their final intention. If, upon inspection and study of the writing, read, it may be, in the light of surrounding circumstances, in order to its proper understanding and interpretation, it appears to contain the engagement of the parties and to define the object and measure the extent of such engagement, it constitutes the contract between them and is presumed to contain the whole of the contract. ****** When the writing does' not purport to disclose the contract or cover it. When in view of its language, read in connection with attendant facts, it seems not designed as a written statement of an agreement, but merely as an execution of some part or detail of an unexpressed contract. When it purports only to state one side of an agreement merely, and is the act of one of the parties only in the performance of this promise. In these and the like cases the exceptions may properly apply and the oral agreement be shown.” Examining the character of the writing and reading it in the light of the purpose of the makers and the surroundings, we must determine whether this* case falls within the exception.

Here is a complete agreement. It covers the obligations and duties of both parties and it leaves nothing unprovided for. If it is to be controlled by evidence of the parol stipulation alleged in the answer, its legal import as to time of performance will be varied; it will not be, as the law implies from the writing, a contract to be performed within a reasonable time, but one to be performed when the machines are perfected, etc.

I think the defendants sought to vary by oral evidence a Avritten contract, and this the court properly refused to permit. All of the defendants’ exceptions to rulings upon the admissibility of evidence and to the charge and refusals to charge have been carefully examined and none of merit discovered. The charge presented the questions in the case fully and fairly; and though the learned chief judge stated to the jury his opinion as to certain testimony, he explained to .them that they were the judges of the facts and were not to be controlled by his opinions.

The judgment and order should be affirmed.

Gildersleeve, J., concurred.


author: By the Court.—Gildersleeve, J. Dugro, J.—(dissenting.)

text:
    CAROLINE PARET, et al., Respondents v. THE NEW YORK ELEVATED RAILROAD COMPANY, Appellants.

      Action at law to recover damages to rental value of premises, and for depreciation infeevalue—When no recovery allowablef or depreciationin selling price—When next-of-lcin may not recover rental damages accrued during lifetime of former life tenant, no executor or administrator of decedent being joined in the action—Special findings of jury inconsistent with general verdict, which to prevail—Directing judgment at general term in favor ttf defendant upon special finding of jury.

    Hester Paret, the mother of plaintiffs, having a life estate in the premises in suit, which ahut on Greenwich street, in the city of New York, died December 20, 1882. The plaintiffs thereupon succeeded to the title as tenants in common, which they held until October 4,1883, when they sold the premises. On July 19, 1884, the plaintiffs brought this action at common law, the complaint setting forth two causes of action, (1) to recover the damages to the use or rental value of the said premises caused by the elevated railroad of the defendant in said street, from the date of the construction of said railroad in 1870 down to October 4, 1888, and (2) the loss in the selling value of said premises caused by said railroad as shown by the reduced price obtained at the sale. Neither the executor nor the administrator of Hester Paret was made a party to the action. The trial judge excluded the recovery of all damages accrued prior to July 19, 1878, applying the statute of limitations, and further instructed the jury to award to plaintiffs damages for “ such loss of the fee value of the property which they sold as was caused by the wrong-doing of the elevated railway in this case.” The jury were further instructed to bring in a general verdict, and in response to certain suggested special findings, which they were allowed in their discretion to make, rendered the following verdict: “The jury make answer to the special questions submitted to them as follows: (1) For the period from July 19, 1878, to December 20, 1882, with interest, if allowed, from July 19, 1884, to date, the interest to be stated separately, three thousand two hmidred and eight dollars, with interest from July 19, 1884, to date, $1,069. (2) For the period fromDecember 20,1882, to October 4,1883, with interest, if allowed, from July 19, 1884, to date, the interest to be stated separately, four hundred and twenty-six dollars, with interest from July 19, 1884, to date, $142. (3) The amount of loss, if any, to the fee value by the sale on October 4,1883, with interest from July 19, 1884, to date, if allowed, the interest to be stated separately, thirty-six hundred and thirty-four dollars, with interest from July 19, 1884. We have not allowed any damages as to rental value. (4) General verdict to be the aggregate of the above, or thirty-six hundred and thirty-four dollars, with legal interest from July 19, 1884; total, $4,845.”
    Counsel for defendant moved for judgment in favor of defendant upon the verdict, upon the ground that the verdict was against the plaintiffs upon the question of damages to rental value, damages to fee value not being recoverable in the action. The trial judge denied the motion and directed judgment in favor of plaintiffs for the entire amount of the verdict.

      Held, that the second alleged cause of action did not constitute a separate cause of action, but only a separate item of damage, and presents a claim for loss of fee or selling value which could not be recovered in a common law action for money only, and did not fall within the legal measure of damages in this case.
    In regard to the claim for rental damages accrued during the lifetime of Hester Paret, Held, that the plaintiffs had no personal right of action to recover such damages, and that the trial judge erred in holding, that the plaintiffs in their capacity as next-of-kin were entitled to recover such damages. The right of action is a personal asset accruing to the owner upon the happening of the injury. The executors or adminxstrators of Hester Paret were entitled to receive the damages sustained during her lifetime and to enforce their payment by action if necessary as part of the estate to be administered by them. The plaintiffs were without authority to maintain a suit for the recovery of such damages while the right of action therefor was vested in the executors or administrators.
    The only possible recovery by the plaintiffs herein was for the rental damages accrued between the date of the death of Mrs. Paret, December 20, 1882, and October 4, 1883, the date of the sale of the premises by the plaintiffs; but as the jury failed to find any damages as to rental value, the trial judge should have directed entry of judgment in favor of defendant upon the verdict.
    The practice pursued on the trial of submitting to the jury under section 1187 of the Code of Civil Procedure special questions of fact was perfectly regular. The special findings by the jury herein were, however, inconsistent with the general verdict and controlled the latter under section 1188 of the Code of Civil Procedure. Held, that the order denying defendant’s motion for judgment in its favor upon the verdict should be set aside and judgment entered for the defendant upon the verdict. The appeal from the judgment is dismissed without costs. As the defendant made no motion before the trial judge to set aside the judgment entered below, the general term will not take action with respect thereto upon its' own motion, but makes this disposition of the case without prejudice to a motion at special term by the defendant to set aside the same.
    If the case had been properly tried and an intelligible verdict rendered, a recovery for past damages accrued during the period of the plaintiffs’ ownership would have resulted. The decision of the general term should, therefore, be without costs.
    Before Sedgwick, Ch. J., Dugro and Gildersleeve, JJ.

      Decided April 14, 1892.
    Appeal by defendant from a judgment in favor of plaintiffs entered on the verdict of a jury, and from an order denying defendant’s motion for judgment in its favor on said verdict. The facts are sufficiently stated in the opinion of the court.

      Davies & Rapallo, attorneys, and Julien T. Davies and Brainard Tolles of counsel, for appellant, argued:—

      The trial court erred in denying defendants’s motion for judgment on the verdict. The practice pursued by the learned trial judge in submitting special questions of fact to the jury to be answered in conjunction with a general verdict was perfectly regular and is authorized by section 1187 of the Code of Civil Procedure. The verdict was a general one in favor of the plaintiffs, and was controlling, except so far as the special findings were inconsistent with it. Code of Civil Procedure, § 1188; U. S. Trust Co. v. Harris, 15 Super. Ct., 75. It was the duty of the court, however, to determine, at the trial, whether the special findings were or were not consistent with the general verdict, and in case they were inconsistent with it, to direct the entry of such judgment as was legally required by the special findings. Code of Civil Procedure, §§ 1188,1189 ; U. S. Trust Co. v. Harris, 15 Super. Ct., 75; Dempsey v. Mayor, etc., 10 Daly, 417. In this ease our contention is that judgment should have been directed in favor of the defendant upon the findings, because: (1.) The jury expressly found against plaintiffs as to the first cause of action. (2.) The second alleged cause of action was insufficient in law to support a judgment in plaintiffs’ favor.
    As to the first cause of action:—The plaintiffs in this case did not request that a verdict for nominal damages should be directed in their favor. They acquiesced in the instruction of the court to the jury, that in case the depreciation of rental value should be found to be due to other causes than defendant’s railroad, the verdict should be in favor of defendant on that issue. They have never in any manner attacked the verdict or appealed from the judgment which found against them on that issue. The decision of the jury on this issue was approved by the trial judge, and has not been questioned by either party. It is not for the plaintiffs, therefore, on this appeal, to attack this portion of the verdict as against the weight of evidence. Nor is it possible for plaintiffs to attack the verdict on the score of irregularity or ambiguity. If any criticism was to be made upon the form of the verdict, it should have been made at the trial, when it might have been remedied. Briggs v. Hilton, 99 N. Y., 517.
    But the verdict Avas neither irregular nor ambiguous. It is true that the question was not expressly put to the jury in Avriting, whether there were any damages sustained in respect to rental value. But that was one of the questions which the trial judge charged them at plaintiffs’ request, that it would be well for them to specifically pass on. It certainly is not open to plaintiffs to criticise the action of the jury in adopting a suggestion which the plaintiffs themselves requested the court to make to them. Moreover the jury had a right, according to the immemorial practice of common law courts and independent of any statute, to state in their verdict upon which of the two issues submitted to them their award was based. This portion of the verdict, though not responsive to any question specially submitted to them, has all the force of a special finding. This was so held in Fraschieras v. Henriques, 6 Abb. N. S. 251. The answers of the jury to the first and second special questions are not inconsistent with the finding that there was no loss of rental value. The jury were not requested to find the loss of rental value during the periods mentioned in those questions, but the damages caused by defendant’s railroad. The sums found as damages for these two periods, when added together, constitute the sum of $3,634, the very sum found to be the damage to fee value. It is clear, therefore, that the jury found that the fee damage was not produced all at once, but that the reduction Avas gradual, and they distributed it between the two periods specified by the court. Such findings were not unreasonable, and were very likely true in point of fact. With the legal proposition that it made no difference when the depreciation of fee value took effect the jury had nothing to do. They answered the questions put to them, literally and truthfully, to the best of their ability. No trace of ambiguity can be found in the verdict, unless it be assumed that the jury ought to have perceived, by some preternatural exercise of sagacity, that the words, “ damages caused by defendant’s railroad ” did not refer to the only kind of damages which they found to exist.

      As to the second cause of action:—The second cause of action, although separately stated and numbered, is really nothing more than the statement of a separate item of damages alleged to have resulted from the same wrongful acts of the defendant which form the basis of the first cause of action. Plaintiffs cannot derive two causes of action from the same act, merely because two species of damage result from it. Trask v. R. R. Co., 2 Allen, 331; Van Leuven v. Lyke, 1 Comst., 517; Howe v. Peckham, 6 How., 229. The controversy about this so-called “second cause of action” is, therefore, not really over the validity of the cause of action but over the measure of damages. That a recovery for loss of fee or selling value in actions of this nature is unwarranted has been many times decided. Uline v. N. Y. Central R. Co., 101 N. Y., 98; Pond v. Metropolitan El. R. Co., 112 Ib., 186; Ottenot v. N. Y. L. & W. R. Co., 119 Ib., 603; Tallman v. Metropolitan El. R. Co., 121 Ib., 119; Porter v. Metropolitan Elevated R. Co., 120 Ib., 298; N. Y. Elevated R. Co. v. Fifth Nat. Bank, 135 U. S., 441; Pappenheim v. Metropolitan El. R. Co., 40 N. Y. St. Rep., 445. Plaintiffs therefore stood in this situation upon the rendition of the verdict: As to the only item of damages upon which they were entitled to recover, the jury had found against them, and as to the item which the jury had found in their favor, it was not allowable, because not within the legal measure of damages. In such a situation it was the-clear duty of the trial judge to direct judgment to he entered for defendant upon the verdict. He having failed to do this, it is the clear duty of the general term to give that direction as to entry of judgment which the trial judge ought to have given. There is no need for a new trial because the verdict is free from error, and is not questioned or impeached by either party. The only errors complained of are subsequent to the verdict, and can be corrected without disturbing the verdict.
    'Talcott & Meyer, attorneys, and William A. Talcott of counsel, for respondents.
   By the Court.—Gildersleeve, J.

The defendant constructed an elevated railroad in the street in front of premises No. 405 Greenwich street, in the city of New York, in 1870; and soon after it commenced the operation of said road, which has ever since continued. The plaintiffs here seek to recover damages to the premises in question, caused by the maintenance and operation of said elevated railroad. Hester Paret, the mother of the plaintiffs, held the premises as life tenant until December 20, 1882, when she died. It will be assumed that the plaintiffs owned the fee to the premises during the life tenancy of Hester Paret. Subsequent to the death of Hester Paret, and on October 4, 1883, the plaintiffs sold and conveyed the premises, and on July 19, 1884, they commenced this action. No executor or administrator of Hester Paret was joined in the action, and the trial court held that the plaintiffs, in their capacity of next-of-kin, were entitled to recover damages sustained by Hester Paret in her lifetime. The plaintiffs’ claim herein was (1) for loss of rental value of the premises from the time defendant’s railroad was constructed to October 4, 1883, the date when plaintiffs sold the premises, and (2) for the loss sustained in a sale of the premises on October 4, 1883, in a depreciated condition at a reduced price by reason of the wrongful acts of the defendant in constructing and operating its railroad in front of said premises. Although the complaint purports to set forth two causes of action, the second alleged cause of action (being the second claim above mentioned) is nothing more than the statement of a separate item of damages claimed to have resulted from the samé wrongful acts of the defendant which formed the basis of the first cause of action.

Two species of damage, resulting from the same act, do not give two separate causes of action. Trask v. Railroad Co., 2 Allen, 331; Van Leuven v. Lyke, 1 Comst., 517; Howe v. Peckham, 6 How., 229. This view was evidently taken by the learned trial judge. In his charge to the jury, he said: Now, there are two elements of damag’e which have been presented to you in this case, one is the diminution of rental value, and the other is the diminution of the proper price which the plaintiffs claim would have been got at a sale for the fee of the property, but for the interposition of the elevated railroad.” Against the protest of the defendant, the trial judge instructed the jury to award to the plaintiffs damages for such loss of fee value of the property which they sold as was caused by the wrong doing of the elevated railway in this case.” In the charge to the jury no mention was made of two causes of action. On account of the Statute of Limitations, the plaintiffs’ recovery of rental damages was limited to the period between July 19, 1878 and October 4, 1883, the time of the sale of the premises by the plaintiffs. The jury was instructed to render a general verdict and to make in their discretion certain suggested special findings as follows :

The jury are to find what are the damages, if any, caused by defendant’s railroad, sub-divided as follows : (1) For the period from July 19, 1878, to December 20, 1882, with interest, if allowed, from July 19,1884, to date; the interest to be stated separately. (2) For the period from December 20,1882, to October 4,1883, with interest, if allowed, from July 19, 1884, to date ; the interest to be stated separately. (3) The amount of loss, if any, to the fee value by the sale of October 4, 1883, with interest from July 19, 1884, to date, if allowed; the interest to be stated separately. (4) General verdict to be the aggregate of the above.”

The jury, after deliberation, rendered the following verdict in writing:

The jury make answer to the special questions submitted to them as follows: (1) For the period from July 19, 1878, to December 20, 1882, with interest, if allowed, from July 19, 1884, to date, the interest to be stated separately, three thousand two hundred and eight dollars, with interest from July 19, 1884, to date, $1,069. (2) For the period from December 20, 1882, to October 4, 1883, with interest, if allowed, from July 19, 1884, to date, the interest to be stated separately, four hundred and twenty-six dollars, with interest from July 19, 1884, to date, $142. (3) The amount of loss, if any, to the fee value by the sale on October 4, 1883, with interest from July 19, 1884, to date, if allowed, the interest to be stated separately, thirty-six hundred and thirty-four dollars, with interest from July 19, 1884. We have not allowed any damages as to rental value. (4) General verdict to be the aggregate of the above or thirty-six hundred and thirty-four dollars, with legal interest from July 19, 1884; total $4,845.”

Counsel for defendant moved upon the minutes of the court and upon the verdict as rendered for judgment in favor of the* defendant, upon the ground that the verdict being against the plaintiffs upon the question of damages to rental value, and damages to fee value not being recoverable in this action, the defendant was entitled to judgment. This motion was denied and exception taken. On this verdict judgment was entered awarding the plaintiffs the sum of $5,333.83 damages, interest and costs. Subsequently an order was entered denying the defendant’s motion for judgment, which order is before us on appeal in connection with the appeal from the judgment.

Section 1187 of the Code of Civil Procedure provides as follows : Where the jury find a general verdict, the court may instruct it to find also specially upon one or more questions of fact stated in writing. The special verdict or special finding must be in writing, and it must be filed with the clerk and entered in the minutes.”

The submission of the foregoing special questions seems to have been fully authorized and the practice pursued by the learned trial judge perfectly regular.

Section 1188 of the Code proxddes that “ Where a special finding is inconsistent with the general verdict, the former controls the latter, and the court must render judgment accordingly.”

If in the finding of a jury special matter follows or is followed by general matter, the verdict will be judged according to the special matter. Fraschieras v. Henriques, 6 Abb. N. S., 251. The verdict herein was a general one in favor of the plaintiff, and was controlling except so far as the. special findings were inconsistent with it. Code § 1188; U. S. Trust Co. v. Harris, 2 Bos., 75. The special findings herein were inconsistent with the general verdict, and legally required the entry of a judgment in favor of the defendant. Upon the foregoing findings, as rendered by the jury, it became the duty of the court to direct the entry of judgment in favor of the defendant. Code §§ 1188, 1189; U. S. Trust Co. v. Harris, supra; Dempsey v. The Mayor, 10 Daly, 417.

The plaintiffs have no personal right of action for damages sustained by their mother, Hester Paret, in her life-time, and the trial judge erred in holding that the plaintiffs, in the capacity of next-of-kin, were entitled to recover such damages. The devisee does not acquire by the devise the right to recover for injury to the rental value of real estate which happened prior to the passing of title under the devise. The right of action is a personal asset, accruing fco the owner upon the happening of the injury. The executors or administrators of Hester Paret were entitled to receive the damages sustained during her life-time, and to enforce their payment by action, if necessary, as part of the estate to be administered by them. The plaintiffs were without authority to maintain a suit for the recovery of such damages, while the right of action therefor was vested in the executors or administrators. Griswold v. Met. El. Ry. Co., 122 N. Y., 102; Shepard v. Man. Ry. Co., 117 Ib., 441.

The most that the plaintiffs herein would be entitled to recover for damage to the rental value would be such loss as was sustained by reason of the wrongful acts of the defendant between December 20, 1882, the date of Mrs. Paret’s death, to October 4, 1883, the date when they sold the property, a period of less than ten months. But this error is unimportant, because of the following finding of the jury : “We have not allowed any damages as to rental value.”

The second alleged cause of action, constituting, as we have already shown, not an additional cause of action but only a separate item of damage, presents a claim for loss of fee or selling value which cannot be recovered in a common law action for money only. Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y., 98; Tallman v. Met. El. Ry. Co., 121 Ib., 119; Pappenheim v. Met. El. Ry. Co., 40 State Rep., 445.

In the last cited case, the rights of persons in the situation of these plaintiffs is very thoroughly discussed. The Court of Appeals, Peckham, J., say as follows: “ I have thus far referred- to the case of the vendee for the purpose of inquiring what rights appertained to him as the present owner of that property. But the argument in favor of the vendor, who owned the property when the road was built, and who sold his land in a depreciated market, caused by the wrongful acts of the defendants, is not to my mind very strong. In the first place, he had his right of action to recover for all damages caused by the trespass up to the time of the commencement of his action, and the subsequent conveyance of the land would not in any way affect that right. If he desired to restrain its further continuance or to recover for the permanent damage caused, he could, while owner, commence and maintain his action in equity. In that action, he would obtain full relief. If he chose to sell, instead of using the remedies which the law gives him, that is a matter, legally speaking, of his own choice. The defendants did not compel or limit or restrain such sale. Nothing that they did could be said to amount to any compulsion by them. The law says their action cannot he regarded as a permanent trespass for the very reason that it is unlawful, and the law will not presume that an unlawful act is to be forever continued. His choice to sell, rather than avail himself of the remedy given him by the law, does not furnish him with a cause of action against the defendants to reimburse him for the loss arising because of the presumption he has indulged in that the trespass would be continuous and unpaid for. He has chosen to regard the trespass in a light opposite to that in which the law regards it, and the loss which he has suffered thereby is not one which the law can regard as caused by the defendants.”

It is clear that the alleged loss sustained by the plaintiffs, upon the sale of the property in question, did not fall within the legal measure of damages in this case. As to the only claim of damages upon which the plaintiffs were entitled to recover, the jury found. against them, and the claim Avhich the jury found in their favor the laAv declares not to be Avithin the legal measure of damages. This situation demanded from the trial judge the direction that judgment be. entered upon the verdict in favor of the defendant. This the learned trial judge did not do.

For the reasons above indicated, the order denying defendant’s motion for judgment in its favor should be set aside, and judgment entered for the defendant upon the verdict. The appeal from the judgment is dismissed Avithout costs. We do not overlook the fact that this disposition of the case will cause the records to sIioav two judgments herein, to wit, the one entered upon the trial in favor of the plaintiffs and the judgment here directed. There was no motion before the trial judge by the defendant to set aside the first judgment. We do not think this court should take action in respect to that judgment upon its own motion, but deem it proper to say that this decision is without prejudice to the defendant to move at special term to set aside said judgment. We think this decision should be without costs, since it occurs that had the action been properly tried, and an intelligible verdict rendered, a recovery for past damages, covering a period of about ten months, to wit, from December 20, 1882, to October 4, 1883, would have resulted.

Sedgwick, Ch. J., concurred.

Dugro, J.—(dissenting.)

I agree with my associates that there can be no recovery in this action for damages other than those to rental value between December 20, 1882, and October 4,1883. The judgment should, therefore, be reversed and a new trial ordered, with costs to defendant to abide the event.

The order denying defendant’s motion for judgment upon the verdict was properly made. The special findings were inconsistent. The first and second allowed damages to rental value, and the third contained a statement that no damages to rental value had been allowed.

It is manifest that the jury did not understand the questions upon which they passed; the verdict is conclusive evidence that this was so.

The verdict contains contradictory statements and should not have been accepted by the court. No judgment should have been ordered upon it.


author: By the Court.—Freedman, J.

text:
    MARY N. TOWNSHEND, Appellant v. ELLEN L. THOMSON, et al., Respondents.

      Ejectment—Adverse possession—Foreclosure of mortgage and the estate and interests of parties not made parties in the action of foreclosure.

    This action was brought to recover the possession of real estate from which, as alleged, the plaintiff had been unlawfully ejected by the defendants. The facts appearing on the trial and the points claimed by the respective parties are fully set forth in the opinion of the court.
    Held, that, upon the whole case, the plaintiff failed to establish title in herself, by adverse possession, or any right to possession superior to that of the defendants.
    Another view of the case also favors the defendants, namely: The defendants are in possession and have at least the rights of mortgagees in possession. Upon the sale under the first foreclosure of Price v. Scudder, the premises were bought by Edward Price, who immediately entered into possession. Although the foreclosure was defective the mortgage was good, and Price became at least a mortgagee in possession. He was expressly authorized by the terms of the mortgage to take possession on default, and the presumption is warranted that he went into possession with the consent of the mortgagor. That he continued in possession until June 26, 1855, the date of his death, is admitted in the brief of the attorney for appellant. The defendants claiming under Edward Price by mesne conveyances, became subrogated to the rights of Price as mortgagee in possession. The master’s deed on foreclosure passed to the purchaser the mortgagee’s right to the debt, and the defendants are entitled to all the rights of Edward Price by virtue of his possession as mortgagee, as well as those derived by virtue of the conveyance from the master. For these reasons ejectment will not lie against defendants. The remedy of the plaintiff was in equity. In every aspect of the case, as made by the plaintiff, the complaint was properly dismissed.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.

      Decided May 2, 1892.
    Appeal from judgment entered in favor of defendants upon a dismissal of the complaint at the trial.

      John Townshend, for appellant, argued:
    I. The motion to dismiss the complaint was in fact on the ground that plaintiff had failed to prove that defendants withheld possession of premises. The reply to which is that the ansiver admits defendants withheld possession from plaintiff. Defendants had driven off plaintiff’s tenant Wieck, by serving him with a squatter notice, and had given leases of the lot to Eiser, March 30, 1888, January 5,1889 ; they were, therefore, proper parties defendant. It was not necessary to give any proof of ouster nor of an actual entry. It sufficed for plaintiff to show a right to the possession. Siglar v. Van Riper, 10 Wend., 414.
    II. At the time of Price’s foreclosure, 1845, the title, subject to the mortgage, was in Waddell as assignee of Williams. Price conveyed to Scudder. Scudder conveyed to Williams. Williams was bankrupt and Waddell was his assignee. Upon one being declared a bankrupt all his property, thereupon, and by operation of law, vested in an assignee appointed by the court for the purpose, and such assignee was vested with all the rights, titles, powers and authority to sell, manage and dispose of the estate, and sue for and defend the same, subject to the orders of the court. No suit commenced by or against the assignee abated by his death or removal from office, but might be prosecuted or defended by ''bis successor. The Bankrupt Act was repealed March 3, 1843, but the repealing act provided “ This act shall not affect any proceeding in bankruptcy commenced before the passage of this act,” * * * “but every proceeding may be continued to its final consummation in like manner as if this act had not been passed.” “It is unquestionable that upon the bankruptcy of Williams his title passed to his assignee.” Landon v. Townshend, 112 N. Y., 98.
    III. The discharge of Williams as a bankrupt did not affect the assignee’s title. The Bankrupt Act provided that every bankrupt who should bona fide surrender his property and otherwise conform to the requisition of the act “ shall be entitled to a full discharge from all his debts, * * * and such bankrupt shall at all times be subject to examination * * * in all matters relating to such bankruptcy and his acts and doings and his property and rights of property, which in the judgment of such court are necessary and proper for the purposes of justice. Bankrupt Act, 1841, ch. 9, §4.
    IV. “ The position of an assignee in bankruptcy in respect to the estate of the bankrupt is in many respects analogous to that of an executor in respect to the estate of a decedent. He holds the assigned estate in trust for the bankrupt and his creditors.” Van Sachs v. Kretz, 72 N. Y., 555. The statute does not run as to creditors’ claims against the estate of the bankrupt not barred at the time of the adjudication. Ib., 556; Hill v. McDonald, 34 N. Y. St. Rep., 814. In this case the court, having jurisdiction of the estate, in effect, decided that the proceeding was pending by making an order on the assignee to sell, and further by advertising for claims and declaring and paying a dividend. The jurisdiction of a court is not exhausted by the rendition of its judgment, but continues until the judgment is satisfied. Wayman v. Southard, 10 Wheat., 32, repeated; Lemaster v. Keeler, 123 U. S., 389; Covill v. Heyman, XVII. The Reporter (Boston), 546, in U. S. Supreme Ct. Where property of a debtor is brought within the jurisdiction of a court, its jurisdiction and control of the property does not cease upon the death of the debtor. Rio Grande R. R. v. Gomila, 132 U. S., 478.
    V. The United States Court in bankruptcy had jurisdiction of the proceedings in bankruptcy and of the bankrupt’s estate, and it duly made an order for the sale in 1869. (1) The order of the court was a matter within its jurisdiction and cannot be attacked collaterally. (2) Law was a bona fide purchaser for value at the sale. No wrong-doing is •imputed to him, and he took the bankrupt’s title. (3) Law conveyed to plaintiff in 1873. Plaintiff took possession in 1875. (4) Plaintiff was in possession by her tenant Wieck, when he was driven off by defendants in August, 1886. This established plaintiff’s right to recover, and there was nothing shown to defeat that right.
    VI. The attempted foreclosure by Price in 1845 did not affect assignee’s title, nor give any title to Price. As neither Williams nor Waddell was a party to this foreclosure, neither was bound by it, and Price after the foreclosure as before was simply mortgagee. Winslow v. Clark, 47 N. Y., 261; Gage v. Brewster, 31 Ib., 218; Robinson v. Ryan, 25 Ib., 324. The owner of the equity of redemption in the mortgaged property is therefore a necessary party to a suit for a foreclosure of a mortgage, and if the suit proceeds without his being made a party, his title is not affected by the decree.” Landon v. Townsend, 112 N. Y., 93; Moore v. Appleby, 108 Ib., 241. Waddell not having been made a party to the action the foreclosure was a nullity as to him. Gage v. Brewster, 31 N. Y., 218; Miner v. Beekman, 50 Ib., 344. “ The purchaser at a mortgage sale ineffectual to pass the title acquires thereby title to the mortgage,” and such purchase is a mortgage in possession. Minor v. Beekman, 50 N. Y., 345; Winslow v. Clark, 47 Ib., 263.
    VII. The entry by Price was as mortgagee. He was mortgagee in possession and nothing more. Williams in 1842 confessedly had the “ legal tide ” to the premises and “was presumed to be in the possession thereof ” and “ the occupation by another person is deemed to have been under and in subordination to the legal title.” 2 R. S., 293, § 8; Code of Pro., § 81; Code of Civ Pro., § 368. “ In the absence of an adverse possession the possession follows the legal title.” Talcot, J., Wood v. Squires, 1 Hun, 483; revd. on another point, 60 N. Y., 191. Where a party has title his possession is presumed, and the occupation by any other person is presumed to be in subordination to the legal title. Woodruff, J., Stevens v. Hauser, 39 N. Y., 302.

      Foster & Thompson, for respondents, argued :
    I. Plaintiff has totally failed to prove a title to the premises in question, either of record or by adverse possession, (a.) The burden was on the plaintiff to prove the allegations of the complaint. The plaintiff had the affirmative on the trial, the defence being practically a general denial. It was incumbent upon her to establish the truth of the allegations of the complaint by competent evidence sufficient for that purpose. In other words it was necessary for her to make a prima facie case. Stearns v. Field, 90 N. Y., 640. “ The plaintiff must at the beginning by evidence competent and sufficient if uncontradicted, establish the truth of his averment.” Southwick v. First Natl. Bk. Memphis, 84 N. Y., 420; Neudecker v. Kohlberg, 81 Ib., 286. “ It is necessary for the plaintiff to deduce title from some source before he can recover, and until he shows a permanent title the defendant is entitled to a verdict, and this without producing the evidence on which his title is based. Possession is always regarded either as prima facie evidence of title, or as a species to title itself and a party cannot be deprived of possession by any one hut the lawful owner. This is but another way of stating that the plaintiff must recover on the strength of his own title and not upon the weakness of that of his adversary.” Sedgwick & Wait on Ejectment, § 800, citing Henry v. Rechert, 22 Hun, 294; Cobb v. Lavalle, 89 Ill., 331; Holbrook, v. Nichol, 36 Ib., 168; Boylan, ads. Meeker, 28 N. J. L. R., 297; Love v. Sims, 9 Wheat., 515; Jackson v. Harrington, 9 Con., 85; 2 Greenleaf on Evidence, §331. “Plaintiff can only recover on the strength of his own title. Proof of a cloud on title is not enough. The failure of defendant to show title cannot avail.” Abbott Trial Evidence, p. 690., citing Brady v. Hennrion, 8 Bosw., 528; Tyler on Ejectment, 72; Watts v. Lindsay, 7 Wheat., 158. (b.) The plaintiff has failed to show a record title. The alleged deed from William C. H. Waddell to George Law conveyed no interest in the premises. (1) The assignee had divested himself of any title 23 years before the attempted conveyance to Law. The assignee filed a report February 8, 1845, in which he reported that certain assets of Williams, among which the premises in question and the Landon property next door are enumerated, were, “ in his opinion, of uncertain value, and ought to be disposed of at once without incurring further expense or delay respecting them.” The premises in question, including- the Landon property, were thereafter sold by the assignee Waddell, at auction, March 23, 1846, for the sum (probably) of $13, and the assignee, in his account of the assets and sales of Williams, which is in the custody of the plaintiff’s attorney, charges himself with this amount, as received, on the sale of this property. There is a very great probability that the person who purchased at this sale subsequently conveyed his interest to Edward Price, who was then in possession of the premises under the sale on foreclosure of Price v. Scudder, and proof to this effect was introduced on the trial of Landon Townshend, although not available in this case. At all events Waddell was absolutely divested of all interest in or control of the property, and absolutely divested of any right to sell the same. His interest and powers were spent as far back as 1846. (2) At the time of the subsequent attempted sale and conveyance to Law, Waddell had no interest in the premises independently of the sale in 1846. The only interest Waddell ever had in the premises was as Williams’ assignee in bankruptcy, and at the time of the attempted sale in 1869, that interest had reverted to the bankrupt or his heirs, the purposes for which the trust was created having expired.
    II. The defendants were entitled to judgment in their favor, (a.) By reason of the failure of the plaintiff to prove title. The plaintiff having utterly failed to make out a title in herself, the defendants were entitled to a verdict, and it was unnecessary for them to produce the evidence on which their title was based. Sedgwick and Wait on Ejectment, supra. [b.) The defendants proved a perfect record title. The only alleged defect in the record of the defendants is in the foreclosure of the mortgage from Scudder to Price. But this defect, if it were a defect, does not enure to the benefit of the plaintiff. She must recover on the strength of her own title solely, and she can reap no advantage from any defect in the title of the defendants. Sedgwick & W. on Ejectment, (supra); Abbott’s Trial Evidence (supra). The defendants are also entitled to the benefit of the presumption that where a title has been accompanied by possession for a long term of years missing links in the title will be presumed in order to quiet the title. Wharton on Evidence, § 1153; Greenleaf on Evidence, (14th ed.), 46 note a; Doe v. Phelps, 9 Johns., 169; Clements v. Machebœuf, 92 U. S., 418; Oldham v. Wooley, 8 B. & C., 22; Roscommon’s Claim, 6 Cl. & F., 97.
   By the Court.—Freedman, J.

This is an appeal by the plaintiff from a judgment entered upon the dismissal of the complaint at the trial.

The action is brought by the plaintiff upon the claim that on June 1,1887, she was seized of an estate in fee and was lawfully in possession of the premises in suit consisting of a lot on the southwest corner of 117th street and 8th avenue in the city of New York, and that while plaintiff was in such lawful possession on that day the defendants unlawfully entered upon the premises and ejected the plaintiff therefrom, and have ever since withheld possession from the plaintiff, wherefore plaintiff demands judgment that she recover possession, etc.

The answer admits that the defendants at the time alleged were and still are in possession, and that they withheld and do withhold possession from plaintiff, and alleges that the defendants have been and are lawfully in possession, and denies the other allegations of the complaint.

Upon the trial before a judge of this court and a jury the substantial facts proved were as follows :

The premises in question with other property were owned in 1835 by one Edward Price. His title is admitted by both parties to have been good. He became seized of the premises in 1827.

In 1835 Edward Price conveyed the premises hy deed to John Scudder, taking from Scudder a purchase money mortgage thereon. In 1838 John Scudder conveyed to Ebenezer L. Williams. In 1843 Ebenezer L. Williams, while the owner of the premises, was adjudicated a bankrupt upon his own petition under the Act of 1841, and William 0. H. Waddell was duly appointed his assignee.

In 1845 a bill was filed by Edward Price to foreclose the purchase money mortgage made hy Scudder, and in 1846 a decree of foreclosure and sale was entered, the premises sold and conveyed by deed of the master in chancery to Edward Price. But neither Williams nor Waddell were made parties to the foreclosure.

In 1855 Edward • Price died intestate, leaving him surviving as his only children and heirs at law Artemas M. Price, Edward H. Price, James C. Price, Andrew J. Price, Julia Ann Coulter and Sarah M. Coddington. In February, 1858, Artemas M. Price and Caroline, his wife, filed a bill against the other children and héirs-at-law of Edward Price for a partition of the premises in question with others. Decree was entered and the premises sold, hut no conveyance was made.

In December, 1858, for the purpose, as may be assumed, of clearing the record title and foreclosing the rights of Williams’ assignee and the dower rights of Williams’ wife, a hill was filed by William Coulter, as administrator of Edward Price, against Rhoda Williams and William C. H. Waddell, alleging the execution of the mortgage, that Waddell had become seized of the interest of Seudder in the premises, the previous foreclosure suit of Price against Seudder, and asking for a decree of foreclosure and sale. Waddell appeared in the action and on the consent in writing of his attorney, a decree of foreclosure and sale was entered, and the premises were sold thereunder and bought by Julia Ann Coulter, and conveyed to her by the referee by deed dated January 28, 1859. But this foreclosure and sale were not effectual for the purpose of divesting the title of Waddell, as assignee of Williams, if any was left in him, because the suit had proceeded against him individually, and not in his representative character as assignee, and he had not appeared therein in his representative character. This has been decided in Landon v. Townshend, 112 N. Y., 93.

Julia Ann Coulter, by various conveyances, acquired all the interest of all the other heirs-at-law of Edward Price, and thereafter, viz., in April, 1863, she and her huband conveyed the premises in question to Timothy Donovan. In May, 1863, Donovan conveyed to Adams. In 1864 Adams conveyed to Wkitbeck. In 1867 Wkitbeck conveyed to Andrew. In 1868 Andrew and wife conveyed to William Thomson by deed dated March 9, 1868.

William Thomson died seized of the premises in question January 13,1872, leaving him surviving his widow Ellen L. Thomson, and John W. Thomson, William A. Thomson and Ernest A. Thomson, his only children, who are defendants in this action, and who, upon the death of William Thomson, became and still are seized of all the right, title and interest in the premises which the said William Thomson had in his life-time. William Thomson paid all the taxes and assessments imposed upon the premises from the time of his purchase until his death, and his executors and the defendants have paid all taxes since that time.

When the premises were sold and conveyed to Edward Price in 1846 under the decree of foreclosure and sale in Price v. Scudder, Price at once took possession under the master’s deed, and maintained his possession continuously down to his death in 1855, and his heirs and their grantees have continued in possession from that time down to the present, unless the proof offered by the plaintiff established the contrary.

The burden was upon the plaintiff to prove the allegations of her complaint, and she can recover only on the strength of her own title or of her own right to immediate possession.

The title claimed by the plaintiff rests (1.) upon an instrument in the form of a conveyance by William C. H. Waddell as assignee of Williams to George Law¿ executed March 1, 1869, and (2.) upon an instrument in the form of a quit claim deed executed by Law to the plaintiff in this action January 10, 1873. Of these two instruments, that executed by Law was, under the evidence in the case, absolutely void under the statute as against the defendants, because given while the property was in the possession of a person claiming under a title adverse to that of the grantor.

Moreover, Waddell, as assignee, had no title or estate left in 1869 which he could convey, and no order of the court authorizing or directing him to convey could invest him, with a title or an estate if he had none. He had divested himself of all title and estate he ever had, twenty-three years before the attempted conveyance to Law. On February 8, 1845, he filed a report, as assignee, in which he reported that certain assets of Williams, among which the premises in question and some adjoining property, which may be styled the Landon property, were enumerated, were, “in his opinion, of uncertain value, and ought to be disposed of at once without incurring further expense or delay respecting them.” In due course of proceedings the premises in suit, including the Landon property, were thereafter sold by him, as assignee, at auction, March 23,1846, for a small sum, and in his account of the assets and sales of property of Williams, which is in the custody of plaintiff’s attorney, the assignee charges himself with the amount, as received, on the sale of this property. There is a very great probability that the person who purchased at this sale subsequently conveyed his interest to Edward Price, who was then in possession of the premises under the sale on foreclosure in Price v. Sc udder, but, at all events, Waddell, as assignee, was absolutely divested of all interest in or control of the property, and absolutely divested of the right to sell the same a second time. This being so it is not necessary to determine whether the second sale in 1869 was or was not procured by fraud practiced upon the court.

A further consideration is that the only interest Wad-dell ever had in the premises, was as the assignee of Williams in bankruptcy, and that, independently of the sale of 1846, that interest under the authorities cited by respondents’ counsel, before the time of the attempted sale in 1869, may be deemed to have reverted to the bankrupt or his heirs, the purposes for which the assignment had been created having expired, the bankrupt having been duly discharged in 1843, and no debts having been proved against his estate prior to 1869. The alleged debt advanced by Yard, the receiver, in 1869, was barred by the statute of limitations, and, being so barred, the assignee could not for his own purposes create a liability of the estate where none existed.

The proceedings in the Superior Court and in the TJ. S. District Court brought by plaintiff to bolster up the alleged title which came through Waddell as assignee, do not bind the defendants in this action, because they were not made parties to the proceedings.

■ It having been sufficiently shown that the plaintiff could not, at the trial, succeed upon the strength of her record title, it remains to be seen whether she established a right to possession superior to that of the defendants.

It was shown that in 1875 the plaintiff caused a board fence to be built around the premises. But it was also shown that the fence disappeared about one year thereafter. The effect of the building of this fence was fully considered by the Court of Appeals in Landon v. Townshend, 41 N. Y. State Rep., 419, and the decision was adverse to the plaintiff now here.

It was further shown that hi 1878, the plaintiff repaired the curb and gutter stones in front of the premises. As this involved not even an entry, it is not evidence of adverse possession.

And finally it is claimed that in 1883, the plaintiff leased the whole plot, consisting of the premises in suit and the Langdon property, to one Wieck, who occupied the lot in suit for about four years. The lease was never recorded and it was not shown that the defendants ever had any notice of it, but it was shown by one of plaintiff’s own witnesses that Wieck’s retirement from the possession of the premises was peaceable and that he disclaimed any right to occupy the premises as against the defendants.

Upon the whole case the plaintiff wholly failed to establish title in herself by adverse possession or any right to possession superior to that of the defendants.

There is still another aspect of the case. The defendants are in possession and have at least the rights of mortgagees in possession. Upon the sale under the first f oréelo jure of Price v. Scudder the premises were bought by Edward Price, who immediately entered into possession. Though the foreclosure was defective, the mortgage was good, and Price became at least a mortgagee in possession. He was expressly authorized by the terms of the mortgage to take possession on default, and the presumption is warranted that he went into possession with the consent of the mortgagor. That he continued in possession until June 26,1855, the date of his death, is admitted in the brief of the attorney for the appellant. The defendants, claiming under Edward Price by mesne conveyances, became subrogated to the rights of Price as mortgagee in possession. The master’s deed on foreclosure passed to the purchaser the mortgagee’s right to the debt and the mortgage security, and the defendants are entitled to all the rights of Edward Price in the premises as well by virtue of his possession as mortgagee as by virtue of the conveyance from the master. For these reasons ejectment will not lie against the defendants. The remedy of the plaintiff was in equity.

The exceptions taken by the plaintiff in the course of the trial require no specific discussion, because they do not affect the final result.

In every aspect, therefore, that can be taken of the case as made by the plaintiff, the complaint was properly dismissed.

The judgment appealed from should be affirmed, with costs.

Sedgwick, Ch. J., and McAdam, J., concurred.


text:
    JULIUS BIEN, et al., Appellants v. THEODORE HELLMAN, Impleaded, etc., Respondent.

      Bill of particulars, motion for, when allowed or refused.

    The order in this case having been made before answer, it was incumbent on the moving defendant to establish a necessity for the order at that stage of the litigation to enable him to prepare an answer to the complaint, which claimed a recovery for a certain balance due upon the alleged contract.
    The defendant showed by his statements in the moving affidavits that he was never interested in business with his co-defendants in any way or manner, and if there is any agreement in writing with his signature, it is a forgery. Under these circumstances no necessity whatever existed for ordering the plaintiffs to furnish a bill of particulars, for the defendant showed his ability to answer the complaint and positively deny all its allegations.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.

      Decided May 2, 1892.
    Appeal from an order of the special term directing service of a bill of particulars by the plaintiffs upon the defendant.

      Franklin Bien, attorney and of counsel, for appellants.

      Seligman & Seligman, attorneys, and George W. Seligman of counsel, for respondent.
   By the Court.—Freedman, J.

The complaint is founded upon a theatrical contract alleged to have been made by the respondent and two other defendants as co-partners in a certain theatrical business.

The particulars which were ordered to be furnished, were as to (a.) The nature of the agreement sued on, whether oral or in writing, (b.) The nature and items of the theatrical printing and of the materials therefor alleged in the complaint to have been furtiished to the defendants, and of those alleged in the complaint to have been delivered to the defendants, (c.) The items of the credit of §1,115.50 to which the defendants are alleged in the complaint to be entitled.

The order having been made before answer, it was incumbent upon the moving defendant to establish a necessity for the granting of the order at that stage of the litigation in order to enable him to prepare his answer to the complaint which was for a certain balance due upon the alleged contract.

But the said defendant himself showed that he never was a partner of the co-defendants ; that he never had any dealings with the plaintiffs; that he never was interested in business with the co-defendants in any way or manner, and that if there is any agreement in writing with his signature, it is a forgery.

Under these circumstances no necessity whatever existed for ordering the plaintiffs to furnish a bill of particulars, for the defendant showed his ability to positively deny all the allegations of the complaint.

The order should be reversed, with ten dollars costs, etc.

Sedgwick, Ch. J., and McAdam, J., concurred.