text:
    Joseph B. Schram, Plaintiff, v. Henry Werner and Others, Defendants.

      Subrogation — between cosureties — limitation as to a surety’s liability — oral proof thereof — promissoi'y note, how fm' subject to oral proof .

    Where one has been compelled to pay a debt which ought to have been paid by another he is entitled to a cession of all the remedies which the creditor possesses against such other person.
    The obligation of co-sureties to contribute to each Qther has grown out of the rule of equity that equality is equity, and is not founded on the idea of a contract between the sureties.
    Contribution may be demanded by the one surety as against the other when the former has been compelled to pay the obligation of the principal debtor, although he was without any knowledge down to the time of payment, or even later, that his co-surety had also obligated himself to pay the same debt; nor will the fact of their becoming sureties at different times or by different instruments, without the knowledge of each other, affect their liability to contribute one to the other as co-sureties. '
    A surety, at the time of entering into the obligation of suretyship, may make such stipulation as he sees fit in regard to his liability, so long as it is done in good faith and his signature is not permitted to seem to be what it is not, so as to mislead others and induce them to become sureties under the belief that he is a co-surety for a common principal, when in fact his liability is restricted.
    If the fact be that a person from whom contribution is sought as co-surety actually signed as a surety for the party claiming contribution as well as for the principal, that face may be shown, although it does not appear in the writing by which he became bound. The contract may rest in parol, and if it does it may be shown, and thereupon it will be given the same effect as if it were contained in the writing.
    The obligation of a promissory note, as between its makers and the payee named therein, cannot be changed by parol evidence, but as between the signers to it it does not constitute the exclusive and only proof of their agreement and relations. It is proper by oral evidence to show the true relations of the signers and the real nature of the contract between them.
    Upon the trial of an action brought by a surety against the drawers and acceptors of three drafts, asking that the plaintiff be subrogated to the remedies of the bank to which the draft had been paid by him against the acceptors thereof, it appeared that the plaintiff executed and delivered to a bank a bond by which he agreed to pay to said bank all present and future liability of the firm of I. Efron & Co., his liability to continue until terminated by notice; that while said bond was in full force the firm of I. Efron & Co. drew three drafts on a firm trading under the name of Henry Werner, and that the firm of Henry Werner accepted the drafts without consideration and for the accommodation of I. Efron & Co., but with knowledge on the part of the firm of Henry Werner of the existence of the plaintiff’s guaranty, and with the understanding and agreement between it and the firm of I. Efron & Co. that the drafts were to be discounted with the bank which held the plaintiff’s guaranty, by which guaranty as well as by the firm of I. Efron & Co. the acceptors were to be protected. Before the bank acquired the third acceptance, its cashier was informed by a member of the firm of Henry Werner that these three acceptances had been made for the accommodation of I. Efron & Co. in pursuance of an arrangement that the firm of Henry Werner should only be liable thereon after the firm of I. Efron & Co. and the plaintiff.
    After the maturity and dishonor of the acceptances, the bank brought an action against the plaintiff upon the bond for the amount of the drafts, and collected from him that amount.

      Held, that the firm of Henry Werner undertook to become surety for I. Efron & Co. and the plaintiff, and were not co-sureties with the plaintiff; that said firm was a successive surety, its liability being restricted to that of a surety for the principal debtor and the other surety, the plaintiff, and that the plaintiff was not entitled to recover on said drafts against said firm.
    Motion by the defendants, Henry 'Werner and others, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance upon the verdict of a jury in favor of the plaintiff, rendered by direction of the court after a trial at the New York Circuit on the llth day of December, 1893.

      Demid Deventritt and ATbertus Perry, for the plaintiff.

      Ffathemiel Myers, for defendant Werner.

      Joseph Fettretch, for defendant Strauss.
   Parker, J.:

In December, 1883, the plaintiff, who is the father of Samuel Schram, one of the members of the firm of I. Efron & Co., trading also under the name of Efron & Schram, executed and delivered to the Importers and Traders’ National Bank of this city his bond, by which he undertook to pay to the bank all present and future indebtedness and liability of Isadore Efron and Samuel Schram, and each of them, whether they, or either of them, should be alone liable, or liable jointly with another or others, on any amount up to $30,000, the liability to continue until terminated by notice.

During the year 188Y, and while the bond was in full force, I. Efron & Co. drew three drafts on the defendants Werner and Strauss, trading under the firm name of Henry Werner, and the latter accepted the drafts without consideration and for the mere accommodation of I. Efron & Co. These accommodation acceptances were made with full knowledge on the part of Werner and Strauss of the existence of plaintiff’s guaranty, and upon a full understanding and agreement between them and I. Efron & Co. that the drafts were to be discounted at the Importers and. Traders’ National Bank, and that the plaintiff’s guaranty, as well as I. Efron & Co., was to protect the defendants Werner and Strauss, from loss. ,/

Before the bank acquired the third acceptance its cashier was informed by the defendant Werner that the acceptances were for the accommodation of I. Efron & Co., made in pursuance of an arrangement with them that Werner and Strauss should only be liable after I. Efron & Co. and J. B. Schram, this plaintiff.

After the maturity and dishonor of the acceptances the bank, acting upon such understanding, brought an action in Wisconsin upon the bond given by J. B. Schram for the amount of the drafts, and therein obtained judgment and satisfaction.

Thereafter plaintiff commenced this action against the drawers and acceptors of the drafts, claiming that he, as surety for I. Efron & Co., having been compelled to pay the same to the holder of the drafts, was entitled by subrogation to all the rights, remedies and securities possessed by the bank as a means of enforcing payment of the drafts, including the drafts and debts represented by them.

The trial court was persuaded that this view was correct, and directed judgment for the full amount of the drafts against all of the defendants, including "Werner and Strauss, the acceptors. The question is whether this ruling was right, in so far as it affects the accommodation acceptors.

The doctrine of subrogation is correctly stated by the learned counsel for the appellant as follows: “ When one has been compelled to pay a debt which ought to have been paid by another, he is entitled to a cession of all the remedies which the creditor possessed against that other.”

I. Efron & Co. were in this matter the principal debtors, and, as against them, the doctrine of subrogation can be successfully invoked. Had Werner and Strauss been, as upon the face of the acceptances they seemingly were, the principal debtors, the principle of subrogation would have been equally applicable to them; or had the plaintiff, with knowledge of the fact that Werner and Strauss were the acceptors of the drafts, acted on that appearance and without any other knowledge, then, as to him, Werner and Strauss would have been estopped from denying that they were such. But the facts were otherwise. The plaintiff had no knowledge of Werner and Strauss; he neither gave his guaranty on their account nor permitted it to continue in force longer than he otherwise would, because information had come to him that they were the acceptors. When the drafts were discounted there came into existence at the same moment a liability on the part of both plaintiff and Werner, and Strauss to pay them. Their liability grew out of separate instruments, but both became liable nevertheless as sureties for I. Efron & Co. Whether they were co-sureties or successive sureties we must now inquire. If the former, they must equally divide the loss. If the latter, the one in the rear of the other must bear the entire burden.

The obligation of co-sureties to contribute to each other has grown out of that favorite rule of equity that equality is equity.

It is not at all founded on the idea of contract between sureties, and may be invoked by the one against the other when he has been compelled to pay for the principal debtor, although without any knowledge down to the time of payment or later that his co-surety has also obligated himself to pay the same debt.

Nor will their becoming sureties at different times and by different instruments without the knowledge of each other affect their liability to contribute one to the other as co-sureties.

If, then, there were no other facts than that Werner and Strauss became sureties for I. Efron & Co. by accepting the drafts for their accommodation, and that J. B. Schram became their surety for the same indebtedness by virtue of the bond lodged by him with the bank, the plaintiff would be in a position to insist that Werner and Strauss were his co-sureties for such indebtedness, and, therefore, bound to contribute to the extent of one-half of the amount paid by the plaintiff.

But the defendants Werner and Strauss undertook to become sureties for I. Efron & Co. and the plaintiff, not with the plaintiff. Their understanding with I. Efron & Co. was that they should respond only in the event that both they and their guarantor Schram could not pay, an event which I. Efron & Co. assured them could not possibly happen because J. B. Schram was such a very rich man.

The question now presented is whether this agreement operated to make J. B. Schram and Werner and Strauss successive sureties.

In considering that question it should be borne in mind that in no manner whatever, either by appearance or otherwise, did the defendants induce the plaintiff to give his bond to the bank, or to refrain from terminating his liability thereunder by notice.

Both his acts of commission and omission were without reference to or knowledge of Werner and Strauss, and he imposed no limitation whatever on his liability. On the other hand, when Isadore Efron and Samuel Schram requested the defendants Werner and Strauss to become sureties' for them Werner and Strauss were informed of the guaranty of this plaintiff and of his ability to respond for the amount of the drafts should I. Efron & Co. fail to pay them.

The question propounded to Werner and Strauss was whether they' would accommodate their friends who needed still another surety. It being a mere matter of accommodation, they were at perfect liberty to decline or accede to the request, and, if granted, to impose as a condition of their becoming sureties that they should not be co-sureties witli the plaintiff, but should be sureties for I. Efron & Co. and the plaintiff. This condition was insisted upon and assented to by the principal debtor. Had the condition been incorporated in the drafts, it would not be for a moment questioned, but they had accomplished what was intended, and had made themselves in fact sureties for the plaintiff as well as for I. Efron & Co.; for the rule is that the surety at the time of entering into the obligation of suretyship may make such stipulation as he sees fit in regard to his liability so long as it is done in good faith, and his signature is not permitted-to seem to be what it is not, so as to mislead others and induce them to become sureties upon the belief that he is a co-surety for the principal, when in fact his liability is restricted. This'rule is followed in Harris v. Warner (13 Wend. 400), where a principal and four sureties executed a note as makers. Opposite each of the names of the first three sureties was written the word surety,” while the fourth wrote opposite his signature surety for the above names.” The principal failing to pay, the first surety was compelled to, and sought contribution against all the others, including the fourth surety, and it was held that from him there was no right of contribution, because he had refused to sign as co-surety with the other sureties, and had a right to qualify his contract as he pleased within the rules of law. To the same effect is Sayles v. Sims (73 N. Y. 551). Other cases in which the rule has been referred to and applied might be cited, but it is deemed too well settled to call for a further citation of authority. But if the fact be that a person, from whom contribution is sought as co-surety, actually signed as a surety for the party claiming contribution, as well as the principal, it may be shown, although it does not appear in the writing by which he became bound. The contract may rest in parol, and if it does it may be shown, whereupon it will be given the same effect as if it were contained in the writing. This proposition is recognized in Wells v. Miller (66 N. Y. 255), where the court, in discussing the question of contribution between sureties, held that there will not be contribution if one surety stipulates for an advantage over the other.

The court said: “ It is not sufficient that both parties are sureties — they must occupy the same jposition in respect to the principal and have no equities between themselves, giving an advantage to one over the other. And it is competent to prove bj jparol the relation of the parties and that one surety agreed to indemnify another, or cmy extrinsic facts affecti/ng the equit/ies between them-.”

In Chapeze v. Young (87 Ky. 476) Chapeze had offered to become surety at the bank for one Gleason.

The bank requested another name, whereupon Gleason applied to Y oung. The latter said to Gleason, not to the bank, that he would become surety “ on the condition and with the agreement that he was binding herself as the surety only of Gleason and Chapeze.”

Chapeze was ignorant of the fact that Young’s name was on the paper until the failure of Gleason to pay. The action was by Chapeze for contribution after payment of the paper, and Young had judgment. The existence of the agreement by which Young was restricted in his liability did not appear on the paper, but the court held on reasoning entirely satisfactory that the existence of such agreement between Young and Gleason, the principal debtor, could be shown by parol.

In Adams v. Flanagan (36 Vt. 400) there were four makers of a promissory note; opposite each of the names of the last two the word surety was written. The first surety paid the note and brought the action against the other to compel contribution.

Upon the trial it appeared that the second surety signed upon.the express understanding with the principal debtor that he signed as surety for the plaintiff and not as co-surety with him. In denying his right to contribution, the court said : “ As between the makers and the payee, the note excludes all parol evidence. * * * But, as between the signers to it, it was not made or intended to be the exclusive proof of their agreement and relations. It is well settled that it is open to parol evidence to show the true relations of the signers and the real nature of the contract between them.”

It follows from these authorities that Werner and Strauss established, by competent evidence, the existence of an agreement by which their liability was restricted to that of sureties for the principal debtors, and the other surety, J. B. Schram, this plaintiff. And as there are no facts present which cause such restriction to be inequitable as against the plaintiff, they must be held to be successive sureties, and the plaintiff in the rear of the defendants Werner and Strauss, and, therefore, not entitled to recover as against them.

The exceptions should be sustained, and a new trial ordered as to the defendants Werner and Strauss, with costs to abide the event.

Yan Brunt, P. J., and O’Brien, J\, concurred.

Exceptions sustained, and a new trial ordered as to defendants Werner and Strauss, with costs to them to abide event.


source: Caselaw Access Project

author: Parker, J. :

license: Public Domain

text:
    Ada M. Dow Currier, Respondent, v. David Henderson, Appellant.

      A servant has only one master —■power of reversal of a judgment without exception tajeen — when not exercised in a civil action — expert evidence as to injuries sustained — form of objections thereto.

    The law does not recognize two principals, who are not in any way connected, as severally responsible for the acts of one servant.
    Upon the trial of an action brought to recover damages for injuries resulting from alleged negligence, it appeared that the accident was due to the negligence of a flyman who was in the defendant’s general employment, as one of the regular attaches on the stage of defendant’s theater, and at. the time of the accident was operating the scenery in the theater under the direction of the plaintiff, who was the stage directress of a theatrical company. The contract between the defendant and the theatrical company provided that the defendant was to supply the theater, with stage and staging scenery, regular attaches on the stage and in front of the house, and some others, for which the defendant was to receive fifty per cent of the gross receipts of the house.

      Held, that the servants which the defendant agreed to furnish were his servants, and that that relation was not at all affected by the fact that the theatrical company or the plaintiff as its directress was at liberty to direct when and how such servants should perform their duties in the course of the presentation of a play, and that the defendant was liable for the negligent acts of the flyman.
    The power of the General Term to reverse a judgment, although an exception be not taken to an error committed by the trial court, is never exercised in a civil action when the error complained of is one that could have been cured on the trial if the attention of the court and opposing counsel had been brought to it.
    It is competent in an action brought to recover damages for personal injuries to show by expert witnesses what results are reasonably certain to ensue from the injuries sustained, and the form of the objection to evidence given by an expert witness on such subject should be such as to call the attention of the court sharply to the fact that the testimony being adduced is not confined within the limitations of the rule.

      Appeal by the defendant, David Henderson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of June, 1894, upon the verdict of a jury rendered after a trial at the New York Oircúit, and also from an order entered in said clerk’s office on the 28th day of May, 1894, denying the defendant’s motion for a new trial.

      Louis Marshall, for the appellant.

      Christopher Fine, for the respondent.
   Parker, J. :

The jury rendered a verdict in favor of the plaintiff, in the sum of $18,000, for damages sustained by the falling of a batten from the flies in defendant’s theater, which struck her on the head apd fractured her skull. A portion of the skull had to be removed, and her life was for a time seriously threatened.

The evidence tends to show that the accident was due to. the negligence of the flyman, who was in the. defendant’s general employ, but at the time of the accident was operating the scenery under the direction of the plaintiff as stage directress of the■ Julia Marlowe Company.

Defendant contends that by reason of the fact that the plaintiff, as such directress, had the right to direct and control the action of the flyman during the performance, the defendant did not stand in the relation of superior to the flyman, whose wrongful act constitutes the ground of action. The point is presented by exceptions taken to the following portions of the charge of the trial court: “The defendant, under the agreement between himself and the Julia Marlowe Company, was liable to the plaintiff, as a member and component part of that company, for any injuries which she received from the carelessness and negligence of the defendant, or any of the attaches or employees which he supplied or furnished on the stage ordn the fly gallery, in either the management or manipulation of the hoisting or lowering of any of the scenery used in the play that the company was performing.

“Although the defendant’s servants were under the immediate control of the theatrical company, yet they were not its servants in the ordinary sense. They were none the less his, the defendant’s, servants. He alone employed and paid them, and he alone had the power to discharge them.”

Either the defendant or the Julia Marlowe Company was, in a legal sense, the flyman’s superior when the accident occurred. Both could not be, for the law does not recognize two principals who are unconnected as severally responsible. (Hobbitt v. L. & N. W. R. R. Co., 4 Exch. 253; Pack v. The Mayor, etc., 8 N. Y. 222; Sloane v. Elmer, 64 id. 201.)

If the plaintiff or the Julia Marlowe Company was the flyman’s superior then the exception was well taken, otherwise not.

"We have been favored on this argument with extracts from opin. ions which, if accepted instead of the decisions actually made, would seem to support equally well the contention of either party. But, as we have said, both parties could not stand in the relation of superior to the flyman. One of them clearly did, and we think that one was the defendant. The evidence, which includes the contract between the defendant and the Julia Marlowe Company, shows that the defendant was to, and did, supply the theater with stage and staging scenery, police, regular attaches on stage and in front of the house leader of and orchestra, for which the defendant was to, and did receive from the Julia Marlowe Company fifty per cent of the gross receipts of the house. The flyman was one of the regular attaches on. the stage, and he, together with all the other attaches and servants which tire defendant by his contract agreed to furnish, were employed and paid by the defendant.

They were not employed for this special occasion, but were the standing employees in defendant’s theater. In other words, the defendant agreed to furnish to the Julia Marlowe Company, for fifty per cent of the gross receipts, the theater, scenery and all necessary employees for its conduct and management, and the company, in consideration therefor and of fifty per cent of the gross receipts, agreed to give certain performances. The servants which the defendant agreed to furnish, and did furnish, whom he hired and paid and alone had authority to discharge, were his servants, and that relation was not at all affected by the fact that the Julia Marlowe Company, or the plaintiff as its directress, was at liberty to direct when and how they should perform their duties in the course of a presentation of a play.

This situation seems to us precisely analagous to that of person who hires from a liveryman a team with carriage and driver for an afternoon’s drive. To a limited degree the hirer acquires dominion over the servant, may direct upon what streets to drive and where to stop, but the driver continues in legal contemplation the servant of the owmer, who is responsible for his negligence, though it occurs in the course of a drive which the hirer directs.

It is further urged that a recovery was had upon a ground not alleged in the complaint; that the plaintiff charged that the defendant was careless and negligent in the maintenance and construction of the scenery, and in’ permitting the same to become and remain out of repair, and not that it was due to the negligent acts of the flyman.

This point is not well made for two reasons :

(1) The evidence relating to the misconduct of the flyman was admitted without objection being made by the defendant that it was not within the pleadings.

(2) Neither by a request to charge, nor by an exception to the charge as made, was the attention of the court called to the claim which appellant now makes. Counsel in effect concedes that the exceptions to the charge were lacking in definiteness, but invokes the power of the General Term to reverse though an exception be not taken.

It is a sufficient answer to make in this case to say that this power is never exercised in a civil action when the error complained of was one that could have been cured on the trial, if the attention of the court and opposing counsel had been brought to it. In this case the court could, and doubtless would, have conformed the complaint to facts proved, had the fact of the variance between the complaint and the proofs been alluded to.

Dr. Graham, who attended the plaintiff during a portion of her. illness, described the nature of the injury to the plaintiff’s brain, after which the examination continued as follows:

“ Q. What results usually follow such an injury of the brain ? A. You mean what may follow. Q. What usually follow? [Objected to. Objection overruled. Exception.] Well, sometimes they get entirely well and leave no results, but injuries of that kind are almost certain to leave damage to the brain- — permanent damage such, as — well, you might sum it all up, say an unstable condition of the nervous system manifested in various ways. One might be simple hysteria or a loss of equilibrium of temperament, such as fr.etfnlness and that kind of thing, epilepsy, insanity, feeble-mindedness generally; those are the jjossible insults and -what often follow these injuries. That is what I mean to say. Q. Plow long after the injury may these different symptoms be manifested ? [Objected to. Objection overruled. Exception.] A. Oh, might be for a lifetime. Q. You do not understand my question. I will make it more clear. Do those symptoms necessarily follow' immediately after a healing of the wound, or may they come at a later period ? A. You mean these various manifestations. Q. Yes, sir,? A. Well, it is possible that they continue right along from the time of the injury to the healing of the wound, or some of them may come on at any time later. Q. And is this time in which they may appear limited by any number of years ? A. No, except the further along the patient goes without any, the less liable they are to come. One of the manifestations that I describe is that of extreme irritability. Q. Suppose they were to appear in this plaintiff, within a period of from one to three years after this injury, would you consider them due to the injury ? A. Well, it would be a matter of opinion; it would be a fair inference. * * * Q. In your judgment would this injury necessarily affect the future conduct of the patient with respect to the business she might follow' or habits of life which she might pursue? A. Well, I could not say it would necessarily, but I would say it was more liable to. Q. In what way ? [Objected to. Objection overruled. Exception.] A. Well, if any of these sequels or manifestations I have previously described should be present she would be, to a certain extent at least, unfitted for any occupation of any kind if she would have epilepsy. Of course, if she would have simply loss of equilibrium or mental condition unstable, why, she would be somewhat incapacitated for certain kinds of work. Of course, if she became entirely insane, she would be entirely unfitted. Q. Would she, in your judgment, be able to take part in any business of an exciting nature or one which required her to remain up late at night? [Objected to. Objection overruled. Exception.] A. Well, there would be more likelihood of her inability to do that than if she had never been injured.”

Had. a proper objection been made, it is clear that the evidence objected to should have been excluded under the authority of Strohm v. The N. Y., L. E. & W. R. R. Co. (96 N. Y. 305). (Griswold v. N. Y. C. & H. R. R. R. Co., 115 id. 61.)

It is competent in such cases to show by competent experts what results are reasonably certain to ensue from the injury, and that being so, the form of the objection should be such as to call the attention of the court sharply to the fact that the testimony being adduced is not confined within the limits established by the decisions of the courts. (McCooey v. Forty-second Street R. R. Co., 79 Hun, 255.)

This general rule should be insisted on, because, in the giving of testimony by an expert upon a general subject which he is presumed competent to testify about, the court may not appreciate that the witness is testifying as to a result which may or is liable to occur rather than one which is reasonably certain to ensue from the injury. Whereas, if his attention be brought to the distinction by the form of the objection, a correct rule will be observed and no injustice will result to either party. Any other course would be to encourage counsel in setting pitfalls for the court with new trials as the attendant result.

The judgment and order should be affirmed, with costs.

Yan Brunt, P. J., and O’Brien, J., concurred.

Judgment affirmed, with costs.


author: Per Curiam :

text:
    Wood Gibson, Respondent, v. Samuel G. Blakley, Individually and as Administrator with the Will Annexed of James Blakley, Deceased, Appellant, Impleaded with Others.

      lien of a judgment— when presumed to home expired — •action against a person individually and as administrator under section 1815 of the Code of Civil Procedure.

    The complaint in an action brought against a defendant as an individual and as administrator with the will annexed of a testator, alleged that the defendant’s testator became liable to the plaintiff in a certain sum because of an agreement by the testator to pay that sum upon the payment by the plaintiff of a judgment which had been recovered against the plaintiff in the year 1867, and was a lien on premises purchased of .the plaintiff by the defendant; that the said testator had received from the estate of the father of the plaintiff moneys properly applicable to the payment of such judgment to an amount more than sufficient to pay the same, but that said judgment had never been canceled of record. It, also, alleged the death of the defendant’s testator; that the defendant was his only heir and next of kin; that he had been appointed administrator with the will annexed of his estate; that no part of the amount due plaintiff had been paid, and that the defendant had received assets from his testator’s estate in an amount more than sufficient to pay said sum. The prayer for relief was that the judgment be canceled of record, and that the plaintiff have judgment against the defendant, as such administrator, for said sum with interest.

      Reid, that as twenty-seven years had elapsed from the time of the recovery of the judgment it had presumptively ceased to be a lien on the real estate of the judgment debtor or even an enforcible claim against him personally, and that a good cause of action was set forth as against the defendant in his representative capacity;
    That under the provisions of section 1815 of the Code of Civil Procedure, an. action might be maintained against the defendant to recover against him both personally and as administrator in case he was liable in both capacities, and that in this case facts were alleged sufficient to constitute a cause of action against the defendant individually.
    Appeal by tlie defendant, Samuel G. Blakley, individually and as administrator with the will annexed of James Blakley, deceased, from an interlocutory judgment of tbe Supreme Court in favor of the plaintiff, entered in the office of tbe clerk of tbe county of New York on the 19th day of December, 1894, upon tbe decision of the court, rendered at tire New York Special Term, overruling the defendant’s demurrer to the plaintiffs complaint.

      Abram KUng, for the appellant.

      David Keane, for the respondent.
   Per Curiam :

April 24, 1867, Wood Gibson, Sr., recovered a judgment against bis son, Wood Gibson, Jr., for $23,300.11, which became a lien on tbe interest of tbe judgment debtor in No. 295 West Eleventh street. November 2, 1869, tbe judgment debtor conveyed his interest in said premises to James Blakley, who in consideration thereof executed and delivered to the grantor (tbe plaintiff herein) a contract of which the following is a copy:

“Whereas, I, James Blakley, of the city of New York, have purchased from Wood Gibson, Jr., of said city, his interest in the property in the city aforesaid, known by the number 295 "West Eleventh street, as appears from his certain deed (in which Elizabeth J. Guión and Clement Guión join) to me, conveying said property, which deed bears even date herewith; and

Whereas, the consideration of the said conveyance to me by the said Wood Gibson, Jr., is the sum of fourteen hundred dollars ($1,400), which sum I have not yet paid to the said Gibson by reason of the existence against him of a judgment in favor of his late father;
“ Now, therefore, I, the said James Blakley, do hereby covenant and agree that upon the cancelment of the said judgment, or upon the release from the lien thereof of the property aforesaid, I shall, upon demand, pay to the said Wood Gibson, Jr., the sum aforesaid fourteen hundred ($1,400) dollars, with lawful interest from the date thereof. This covenant to apply to and bind the lawful representatives of myself and of the said Gibson.
“Dated, November 2, 1869.
“(Signed) JAMES BLAKLEY.
“ In presence of
“(Sgd.) Chas. Coudert, Jr.”

July 19, 1869, Wood Gibson, Sr., died, leaving a last will and testament, which was duly admitted to probate September 8, 1869, and letters testamentary thereon were duly issued to said James Blakley, who was nominated as an executor therein. The testator bequeathed one-fourth of his estate to said James Blakley in trust for the following.purposes: (1) To pay the aforesaid judgment; (2) the remainder of the fourth to be invested and the income therefrom paid to Wood Gibson, Jr., during his life. The executor received from said estate moneys properly applicable to the payment of the judgment to an amount more than sufficient to pay the same, but the judgment has never been canceled of record. June 25, 1888, James Blakley died, leaving the defendant, his son, his only heir and next of kin, who was duly appointed the administrator of his. said estate. These facts are set forth in the complaint, and it is also alleged that no part of the $1,400 promised to be paid by said contract has been paid, and it is also alleged that the defendant has received assets from his father’s estate in an amount more than sufficient to pay said sum. The complaint closes with a prayer that the judgment be canceled of record, and that the plaintiff have judgment against the defendant as administrator for $1,400, with interest thereon from November 2, 1869. It is more than twenty-seven years since this judgment was recovered and more than a quarter of a century since the defendant’s testator received from the plaintiff a conveyance of the premises. Presumptively the judgment has long since ceased to be a lien on the real estate or even an enforcible claim against the judgment debtor personally, and a good cause of action is set out as against the defendant in his representative capacity.

It is insisted that facts sufficient to constitute a cause of action against the defendant individually are not set forth in the complaint. In considering this question, it must be borne in mind that this action is not against devisees or legatees, nor is it against one of several next of kin, or one of several heirs, and many of the facts which are necessary to be alleged in such cases are not necessary to be in this action. In so far as this is a personal action, it is against a sole heir and next of kin, who has received the whole estate of his ancestor, subject to the liability to pay the debts of the - ancestor in so far as the defendant has received sufficient assets, and sufficient facts are alleged to constitute a cause of action against the defendant individually. An action may be maintained against a defendant -to recover against him personally and as an administrator in case he is liable in both capacities. (Code Civ. Proc. § 1815.)

It does not appear on the face of the complaint that there is a defect of parties defendant. It is not alleged that an administrator with the will annexed or a testamentary trustee for the estate of Wood Gibson, Sr., has been appointed, and for aught that apjjears the estate may have been settled and the trust terminated.

The judgment should be affirmed, with costs.

Present —Yan Brunt, P. J"., Follett and Parker, JJ.

Judgment affirmed, with costs.


author: Parker, J.:

text:
    Emeline Lee, Appellant, v. Mary A. Timken, Respondent.

      Settlement of a disputed claim, — release.
    Where it is claimed by one person that another owes her $10,000, which liability is wholly disputed, and it is agreed between them that $4,000 shall be paid and accepted in settlement of the claim, which is done, and a release is executed, such release is a bar to any recovery by the creditor for the claim, unless it is made to apnear that the acceptance of the same was induced by fraud.
    Appeal by the plaintiff, Emeline Lee, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 12th day of January, 1895, upon the decision of the court rendered at the New York Special Term sustaining the defendant’s demurrer to the complaint, and also from the order directing the entry of said judgment and sustaining the defendant’s demurrer to the complaint.

      V. W. Kingsley, for the appellant.

      Geo. K. Mott, for the respondent.
   Parker, J.:

We quite agree with the reasons given by the learned judge at Special Term for sustaining the demurrer to each of the causes of action attempted to be alleged in the complaint, and were it not that the appellant seems to present a question to this court, not brought to the attention of the Special Term, further discussion could be avoided.

The facts alleged as constituting the first cause of action are that James Lee, the father of the defendant and the husband of plaintiff, being the owner of two pieces of real estate, one of which he desired the plaintiff to have, and that defendant should have the other, summoned them to him and proposed that he should execute to them, and deliver to one White in escrow, deeds for the property which he intended they should respectively have, and required of the defendant, as the property to be conveyed to her was of far greater value than that intended for his wife, that she should agree to pay off a. $10,000 mortgage which was an incumbrance upon the property to be conveyed to the plaintiff. That defendant assented to this arrangement, and the deeds were accordingly executed and delivered in escrow.

Subsequently the grantor died, and the deeds were respectively delivered to the plaintiff and defendant, but defendant in violation of her agreement refused to pay off the $10,000 mortgage, and a settlement was thereafter had whereby plaintiff was induced to accept $4,000 and execute a release to the defendant.

The complaint continues that since the settlement plaintiff has discovered that defendant admitted to certain parties that she had agreed to pay the sum of $10,000 to cancel and discharge the mortgage, and the prayer demands that the release be set aside as having been procured and obtained from the plaintiff upon false representations. An examination of the complaint fails to disclose any suggestion that the plaintiff was misled by the assertions of the defendant ; on the contrary, it appeal’s that she then understood the facts to be precisely as she now claims them. She alleges, in effect, that this understanding and agreement between James Lee, this defendant, and herself was arrived at when all three were together. So, when defendant refused to pay the mortgage and denied the existence of the agreement, the plaintiff knew what the facts were, and, with that knowledge, she concluded to accept $4,000 in settlement rather than attempt to enforce her claim for the full amount. Her position, as stated in the complaint, therefore, is, 1 knew all about the facts when I settled with the defendant, but I feared to risk a contest. Now lam informed that I-can strengthen the evidence which I had by the admissions of the defendant, and so I ask that the settlement be set aside as fraudulent. Clearly the facts alleged do not entitle the plaintiff to any such relief.

It is also urged, and with some appearance of seriousness, that the acceptance of $4,000 from the defendant, and giving a release therefor, does not stand in the way of a recovery by the plaintiff, because, according to the allegations of the complaint, it was within the rule that the payment of a lesser sum in satisfaction of a greater cannot be any satisfaction for the whole. And some of the many authorities are cited, which, from Cumber v. Wcme (1 Strange, 426) to the present time, have maintained that a creditor can never bind himself by simple agreement to accept a smaller sum in lieu of an ascertained debt of a larger amount, such agreement being nudmmpacfmm.

But tliat is not this case, and tbe authorities cited have no bearing upon it whatever. "Whether there was anything due was in dispute between these parties, the plaintiff insisting that $10,000 should be paid, and the defendant that she was not liable to pay anything. And out of this dispute there came a settlement, by which the defendant agreed to pay and the plaintiff to receive the sum of $4,000.

In accordance with this agreement payment was made, and the plaintiff executed a release to the defendant. While this settlement stands, it is a bar to any further recovery by the plaintiff, and it must continue to stand unless it shall be made to appear that it was induced by the fraud of the defendant.

The judgment should be affirmed, with costs, but with leave to the plaintiff to amend her complaint within twenty days after entry of an order herein upon payment of the costs in the interlocutory judgment and of this appeal.

Yan Brunt, P. J., and O’Brien, J., concurred.

Judgment affirmed, with costs, but. with leave to plaintiff to amend complaint within twenty days after entry of order hereon on payment of costs in interlocutory judgment and of this appeal.


author: Per Ouriam :

text:
    Theresa Boas, Respondent, v. The Mayor, Aldermen and Commonalty of the City of New York, Appellant.

      Recovery of an amount paid on a void assessment.

    .Where a person has paid an assessment to a city for a local improvement, without knowledge or notice of the existence of facts rendering it void, he is entitled to recover from the city the sum thus paid.
    Appeal by the defendant, The Mayor, Aldermen and Commonalty of the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of November, 1894, upon the decision of the court rendered after a trial at the New York Special Term.

      George L. SterVmg, for the appellant.

      James A. Deeri/ng, for the respondent.
   Per Ouriam :

This action was brought to recover $255.61, the amount of an assessment on plaintiffs lots situated on One Hundred and Forty-seventh and One Hundred and Forty-eighth streets, levied on account of the construction of the Boulevard sewers. October 1Y, 1883, the plaintiff paid this assessment without knowledge or notice of the existence of the facts which, it is asserted, renders the assessment void.

Section 91, chapter 335, Laws of 18Y3, provides: Whenever any work is necessary to be done to complete or perfect a particular job, or any supply is needful for any particular purpose, which work and job is to be undertaken or supply furnished for the corporation, and the several parts of the said work or supply shall together involve the expenditure of more than one thousand dollars, the same shall be by contract, under such regulations concerning it as shall be established by ordinance of the common council, excepti/ng such works now in progress as cure authorized by leuw or ordinance to be done otherwise tha/n by cont/ractP

The exception in italics relates to particular works in progress April 30, 18Y3, when the statute took effect, which had then 'been authorized by law or ordinance to be done otherwise than by contract. Two conditions must have existed April 30, 18Y3, to bring the Boulevard sewer within the exception: (1) The work must have been in progress; and (2) it must have been authorized by law or ordinance to be done otherwise than by contract.”

It is admitted in the answer that the Boulevard sewers were wholly constructed by day’s work and not by contract; that the expense thereof was more than $1,000, and that the common council of the city did not adopt an ordinance directing the said work to be done otherwise than by contract. The Boulevard is about five' miles long, and for the purpose of constructing the sewers therefor it was divided into five sewer sections designated as 1 D, 2 O, 12 E, 13 B and U B.

Section 12 E extends from One Hundred and Sixth to One- Hundred and Fifty-third streets and embraces the plaintiff’s property. This section was divided into three sub-sections. Work upon the sub-section which includes the plaintiff’s property was not begun until after July 1, 1873, two months after the section above quoted of chapter 335, Laws of 1873, went into effect, although work upon one of the subdivisions of section 12 E was begun in August, 1872.

In The Matter of French (30 Hun, 83; affd., 93 N. Y. 634) an assessment upon property embraced within this particular subsection for the construction of this sewer was vacated on the ground that the work had not been begun upon the sub-section prior to May 1, 1873, and that the fact that work had been begun upon another subdivision of section 12 E did not render the assessment valid. The case referred to, as held by the learned judge at Special Term, is decisive of the one at bar. (See, also, Matter of Blodgett, 91 N. Y. 117.) The plaintiff having paid the assessment without knowledge or notice'of the existence of the facts rendering it void, is entitled to recover the sum paid. (Mutnial Life Ins. Co. v. Mayor, 79 Hun, 482; affd., 144 N. Y. 494.)

The judgment should be affirmed, with costs.

Present — Yak Brunt, P. J., Eollett and Parker, JJ.

Judgment affirmed, with costs.


text:
    George W. Millar and Another, as Executors, etc., of John Morton, Deceased, Appellants, v. William J. Larmer, Respondent.

      Findings of fact and lam — not reviewed on appeal in the absence of exceptions.

    Where the parties appealing from a judgment fail to serve or file exceptions to the decision of the Special Term upon which the judgment was entered, they are not, upon appeal, in a position to challenge the findings of fact or conclusions of law Of that court.
    Appeal by the plaintiffs, George W. Millar and another, as executors, etc., of John Morton, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 7th day of November, 1894, upon the decision of the court rendered after a trial at the New York Special Term.

      A. B. Cruihshanlc, for the appellants.

      A. A. /Spear, for the respondent.
   Per Curiam :

The appellants, not having served or filed exceptions to the decision of the Special Term, are not in a position to challenge the findings of fact or the conclusions of law. The exceptions taken by the appellants to the reception and exclusion of evidence were not argued at the bar of this court, nor on their brief, and besides none of them is tenable.

The judgment should be affirmed, with costs.

Present — Yan Brunt, P. J., O’Brien and Follett, JJ.

Judgment affirmed, with costs.


author: Per Curiam:

text:
    Adolfo Casola, Respondent, v. Francisco Vasquez, Appellant, Impleaded with Another.

      A limited co-pa/rtnership agreement — rights of the partners controlled thereby.

    ■Where co-partners by agreement assume to form a limited co-partnership, fixing the liability of each as between themselves, they cannot thereafter be heard to say in an actión between themselves that their rights were not controlled by such agreement.
    Appeal by the defendant, Francisco Yasquez, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of December, 1894, denying his motion to vacate an attachment heretofore granted in the action.

      Jones <& Q-oxvn, for the appellant.

      louis Mctrshdll, for the respondent.
   Per Curiam:

The co-partners, by an agreement, having assumed to form a limited co-partnership, fixing the liability of each as between themselves, cannot now be heard to say in. an action between themselves that their rights were not controlled by such agreement.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Present — Van Brunt, P. J., O’Brien and Eollett, JJ".

Order affirmed, with ten dollars costs and disbursements.


text:
    Thomas W. Reilly and Another, Respondents, v. John R. Lee, Appellant.

      Counterclaim — must be a complete ca/ase of action — action on contract — defense of its breach and of a counterclaim of damages — defendant’s costs — taxation thereof.

    It is just as necessary for a defendant to have a complete cause of action, in order to set it up by way of counterclaim in his answer, as it would be if he had brought an independent action thereon.
    When the defendant, in an action brought upon a contract, interposes the plaintiff’s breach of contract to prevent any recovery against him and obtains a decision in his favor upon such defense, he thereby deprives himself of the right to recover in that action damages against the plaintiff because of such breach. If, however, the defendant permits a recovery by the plaintiff for the amount due the plaintiff under the contract, he is entitled to set up, by way of counterclaim, the damages sustained by him by reason of the plaintiff’s breach of the contract, although they may largely exceed the amount due the plaintiff under the contract, and for such excess the defendant is entitled to an affirmative judgment against the plaintiff.
    Where both the parties to an action are entitled to costs under section 3234 of the Code of Civil Procedure, the defendant should present his hill of costs to the clerk and have them taxed, and, if the clerk refuses to enter them in the judgment, the defendant should make a motion that they be so entered.
    Appeal by the defendant, John R. Lee, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 10th day of April, 1894, upon the report of a referee.

      Artemas B. Smith, for the appellant.

      B- Lafiin, Kellogg, for the respondents.
   Parker, J.:

The complaint alleged two separate canses of action growing out of two different contracts. As to one there is no dispute, and for convenience we shall treat the matters in controversy as if but one cause of action was pleaded in the complaint. In brief it was for a balance claimed to be due under a written contract entered into between the parties to this action in June, 1889, by which the plaintiffs agreed to build, construct and finish in the most substantial and workmanlike manner, and to the satisfaction and acceptance of the engineer or engineers in charge of the Pennsylvania, Poughkeepsie and .Poston Railroad Company, all the masonry work required to be done by the first party (this defendant) for the bridge to be constructed by it across the Lehigh river at or near Slating-ton, Pennsylvania.” And the defendant engaged that whenever, in the opinion of the said engineer or engineers in charge, the said work should be completely finished in every respect and performed agreeably to the various stipulations and specifications in the said agreement contained, and the said engineer or engineers in charge should have furnished to the defendant a certificate to that effect, together with an estimate of the quantity of work done by the plaintiffs, he would, within twenty days thereafter, pay the plaintiffs the amount found to be due.

Performance by the plaintiffs and the making and delivery of the required certificate and estimate by the engineer in charge, under which they claimed to be due $1,671.95, was also alleged. The answer put in issue the allegations of performance and the making of the certificate and estimate by the engineer, and by way of counterclaim asserted that the plaintiffs failed to construct the masonry in a substantial and workmanlike manner as required by said agreement, and that a portion of the work was so defectively done that it was rebuilt at defendant’s expense, and the sum expended therefor defendant claimed the right to recover against the plaintiffs under the fifth provision of the contract, which is as follows:

“ Fifth. It is mutually agreed between the parties hereto that if the second party shall execute airy part of such work defectively, then such defective work shall be rebuilt at the expense of the party of the second part, upon receiving the order from the engineer or engineers in charge to that effect.”

The referee found that the engineer in charge did not furnish to the defendant a certificate that the work had been performed in a substantial and workmanlike manner ; nor make and deliver to the plaintiffs an estimate of the quantity of work done by the plaintiffs, all of which was by the terms of the contract a condition precedent to a right of recovery by the plaintiffs, and he further found that there was no proof of a waiver of such certificate by defendant.

In accordance therewith he held that the plaintiffs were not entitled to recover any sum whatever, and directed judgment accordingly. His report also directed that judgment should be entered dismissing the counterclaim set forth in the answer, but not upon the merits. With the reasons for the decision respecting the counterclaim as stated in the referee’s opinion, the appellant is dissatisfied. We shall refrain from a discussion of them, however, on this review, because we think the decision must be upheld upon other grounds, and it matters not whether proper reasons are given for rendering a correct judgment.

Assuming the defendant’s contention to be correct, that, under the fifth provision of the contract, which we have quoted, he was entitled to recover of plaintiffs the expense of rebuilding the pier, which it was proved was done by the railroad company with whom the defendant had contracted to do the work, which he subsequently sub-contracted to these plaintiffs, and which was done at a cost exceeding $3,000, he certainly could not recover until after'performance. And performance could not be undertaken until after the order, from the engineer or engineers in charge, to that effect had been received. They might have provided otherwise, but they chose this method of guarding against defective work, and in effect provided that the remedy for unskillful performance on the part of the plaintiffs should be the rebuilding of sucli work as should be done defectively. Even that was not left to the discretion of the defendant, for it was further conditioned that the rebuilding should only be done upon an order of the engineer in charge. There was a controversy on the trial whether the order was properly made by the engineer and received by the party to be affected, and whether the rebuilding was done at the expense of the party of the first part. But that is of no moment in the present discussion, for, conceding the defendant’s contention in such respects to be correct, nevertheless a cause of action in his favor could not arise therefrom until performance had been completed; and it was not completed until after the commencement of this action. At that time defendant could not have commenced an action against the plaintiff's to recover for the expense incurred iri rebuilding the pier, for the rebuilding had not been finished and his cause of action was not, therefore, complete. And it was none the less necessary that he should have a complete cause of action in order to set it up by way of counterclaim against these plaintiffs. (Patterson v. Patterson, 59 N. Y. 574; Taylor v. The Mayor, etc., 82 id. 10.)

"While the counterclaim was dismissed, the dismissal w'as not upon the merits, so the defendant is not thereby deprived of his right to enforce his cause of action if it has in the meantime become or shall become complete. The decision of the referee in dismissing the counterclaim is also justified by the decision in Walker v. Millard (29 N. Y. 375). In that case the plaintiff sought to recover a balance claimed, to be due under a building contract. The defendant answered that plaintiff could not recover because of his failure to fully perform the contract, and by way of counterclaim demanded damages for defective performance. It was held that the plaintiff had committed a breach of his contract and could not recover, and also that defendant could not recover on his counterclaim. The reason assigned is briefly stated in the opinion of Johnson, J., as follows : “ He alleges that the plaintiff has broken the contract or failed to perform it, and cannot, therefore, compel him to pay, and yet insists that he can compel the plaintiff to pay for defects in the work for which the latter gets no compensation. This, I apprehend, he can scarcely be allowed to do. He cannot both repudiate the contract and enforce it in the same action.

“ Had the defendant brought his action to recover damages for the non-performance of the contract on the part of the plaintiff, it would have been necessary for him to allege performance, or an offer to perform, on his own part, or he would not have stated a cause of action.
“ Certainly he is in no better situation in regard to his counterclaim as defendant; having interposed the plaintiff’s breach in avoidance of his own obligation to pay, and procured a ruling to that effect in his favor, he is in no situation to enforce the contract against the other party in any particular, especially in the same action.”

This case was cited and followed in Woodward v. Fuller (80 N. Y. 312). The same question came before the court in Lennon v. Smith (124 id. 578). In that case the plaintiff contracted to build a cellar within a certain time, and it was agreed that a penalty of twenty dollars a day should be enforced for each day the work should remain unfinished beyond the term. In an action brought to recover the contract price, the referee decided that there was a substantial breach of contract upon the part of plaintiff available to defeat recovery by him. And having decided that the defendant was entitled to be relieved from the obligations of the contract by reason of the breach by plaintiff, he proceeded to award damages in favor of defendant and against the plaintiff in the sum of $540 for non-performance of the contract. In reviewing that judgment the court said: “ She could not repudiate the contract for the purpose of barring the plaintiff’s claim for his work, and at the same time make it effectual for the recovery of damages against him for its breach, although she might, if the facts permitted, recover damages, if any there were in excess of the price or value of the plaintiff’s work. And the reason is that in such case the contract is permitted to remain operative for the purpose of the remedy and relief of both parties to it, and it is no less essential to support the defendant’s claim for damages than it is to sustain that of the plaintiff founded upon it for his work. It is apparent that a rule having the effect to give one of the parties to a contract the benefit of it to the exclusion of the other in the same action, would or might work very unjustly to the latter, and quite unreasonably to the profit of the former.”

If it should be assumed in this case that the cause of action which defendant set up by way of counterclaim was a completed cause of action, nevertheless he was not entitled to recover on it, because he interposed the plaintiffs’ breach of the contract to prevent any recovery by them, and obtained a decision in his favor, whereupon he deprived himself of the right -to recover in that action damages against the plaintiffs because of such breach.

Had he permitted a recovery by the plaintiffs for the amount due them under the contract he would have been entitled, under the authority of Lennon v. Smith, and upon principle, to counterclaim his damages against them, although they might have largely exceeded the amount due to the plaintiffs under the contract, and for such excess he would have been entitled to an affirmative judgment against them.

If the views expressed are correct, it is unnecessary to consider the exceptions taken to the admission of evidence and to the refusals of the referee to find certain facts which were requested by the defendant, for, if the rulings had been otherwise, the result could not have been affected.

Presumptively, both parties were entitled to costs under section 3234 of the Code of Civil Procedure, but it does not appear that the defendant presented a bill of costs for taxation or asked to have his costs inserted in the judgment. The defendant’s remedy was to have presented his bill of costs to the clerk and had them taxed, and, if the clerk had refused to enter them in a judgment, to have made a motion that they be so entered.

The judgment should be affirmed, with costs, but without prejudice to the right of the defendant to move for a correction of the judgment below in respect to costs.

Yan Brunt, P. J., concurred.

Judgment affirmed, with costs, without prejudice to right of defendant to move for correction of judgment below in respect to costs.