author: Mohell, J.

text:
    Alonzo F. Robbins and others, plaintiffs and respondents vs. Richard E. Mount, Jr. et al. defendants and appellants.
    1. The liability of the osifer of a building for injuries to third persons, caused by a defect in the contraction of it or its appurtenances, without any immediate or active agency on his part, does not extend to his mere agents or those employed by him.
    2. Where the executor of a deceased owner of a building, is empowered by his last will merely to receive the .rent thereof, until guardians are appointed of infant devisees under such will, and has no estate in the land, he is not personally responsible for damages caused by the overflow of water from a basin or other fixture belonging to such building, when he neither placed nor maintained it there, nor had any other agency, active or passive, in producing such injury.
    3. As the liability of principals for the misconduct of their agents arises wholly from the supposed express or implied authority given by the former to the latter and the consequences of its exercise, an infant, who cannot legally create an agent, is not responsible Tor the misconduct of those who act as such. . The only tortious acts for which he can be made responsible, are those com-j mitted by himself, or under his immediate inspection, and by his express 4 direction or authority to commit them.
    4. But if the mere passive ownership of real estate, upon which a structure or any of its fixtures, productive of injury to others, exists either improperly con-f structed or which ought not to have been there or is destitute of the safe- | guards which ought to have been used to prevent injury therefrom,is sufficient to * create a liability, it would seem that such liability might extend to infant owners.
    5. Whether the principle of the liability of owners of real estate as insurers, without regard to any question of negligence, arising from motives of public policy is applicable where a relation of landlord and tenant subsists; Quiere ? as any responsibility in such cases .is founded on contract.
    6. Where there is no covenant to repair by the lessor, contained in a lease, no contract can be implied from the mere demise, that the demised premises shall continue suited to the purposes for which they were leased.

      7. The question of negligence is material in an action for damages, caused by a fixture in a building, whose construction was not unlawful by being a nuisance ■ per se or otherwise, against the owner of such building and fixture. If such fixture was originally insecurely constructed, so as to be likely to be productive of the injuries complained of, the owner’s liability rests on his positive malfeasance, without regard to any negligence.
    8. The owner of a fixture in a building, whose use, if made with proper care, will not be productive of injury to any one, is not responsible for its negligent or careless use by third persons, even if he has parted with its control to them. For any injuries arising from such improper use, only the person guilty of it is responsible. But the person injured is not entitled to any indemnification, if his own negligence has concurred in producing the irqury.
    9. the duty of a landlord towards his tenants, in regard to the fixtures in a building, for supplying such tenants with water, ends .with their proper construction and the sufficiency of the materials of which they are composed to enable them to be used with safety, if used with ordinary care. Their responsibility does not last during the whole continuance of such fixtures for the improper conduct of others in causing them to do damage by an overflow of water, or other careless use of them.
    10. In an action for damages for injuries caused by the improper use of a fixture for supplying a building with water, where the evidence on the trial that it was harmless if used with proper care, is- uncontradicted, and there is no proof that the defendant was the author of the particular act or acts of improper use from which the injuries-complained of ensued, any submission of the question of the supposed suitableness or unsuitableness of the fixture in question for the purposes for which it was constructed, is improper. The court should, in such case, direct a verdict for the defendants.
    11. In an action for damages for injuries by negligence of another, the burden of proof rests on the plaintiff, and although circumstantial evidence is sufficient, it must be such as to lead directly to the conclusion that such negligence was attributable to some act of commission or omission of the defendant.
    12. The employment and payment of a person, put in charge of a building by the owner, by a tenant of part thereof, to clean and keep in order such part, and make his fires, cannot make the landlord liable for any injury arising from the negligence of such person, while engaged in such employment, without some provision in the lease to such tenant, requiring him so to employ such third person.
    (Before Monem,, Garvin and McCunn, JJ.)
    Heard February 14, 1867;
    decided April 1, 1867.
    Appeals from orders made at special term, denying motions for a new trial.
    The action was to recover damages for injury to the plaintiffs’ property by water. They occupied, as tenants, the first floor of the building on the north west corner of Broad wav and Worth street, in the city of New York. The upper parts of said building were occupied as officés, one of said parts, being upon the second floor, was occupied by George Gifford, as a law office. The building was formerly owned by William B. Moffat, who died in April, 1862, devising his real estate to the defendants, Oora and Myra Moffat, then and now infants. The defendant Mount was appointed and qualified as executor. The only authority, if any, given by the will to the executor, over the real estate was in the following clause: “ I hereby authorize and empower my executors, hereinafter named, to collect and receive the income and rents of all my real estate, for the benefit of those entitled to the same.”
    The plaintiffs had possession of the first floor of said building under a lease from William B. Moffat, (the devisor of the defendants Cora and Myra Moffat,) dated in March, 1861, for the term of four years from May 1, 1861. The rooms occupied by Gifford, were held under a lease made in February, 1863, by Smith, the agent of the estate of said William B. Moffat, for one year, from May 1st, 1863. Those rooms, which were directly over the store of the plaintiffs, contained a urinal, constructed when the building was erected, for the use of those rooms. Such urinal contained a stop cock above it, and was perforated with several holes in the bottom of the basin, for the out flowing of the water. One Anderson, was trustee for the Moffat children, and was employed by the defendant Mount to collect the rents. One Grevalt was the “janitor” of the building, employed by Moffat in his life time, whose business was to take care of the building, clean the passages, and let the tenants in and out. He was employed by Gifford to-' sweep and dust his offices, and had a key to the door opening from the hall. He slept at the head of the stairs, on the floor where Gifford’s office was. Grevalt testified, that on the night the 9 th of April, 1864, he was up until after 12 o’clock. The next day, which was Sunday, between one and two o’clock in the afternoon, he heard the running of water in Gifford’s room, went there and saw the water flowing over the basin of the urinal. There was a small stream running through the stop cock. ■ He shut off the water and took out of the urinal at that time, tobacco leaves of a cigar, and a little piece of paper spread out, just covering the holes in the bottom of the basin. He employed a woman to assist in cleaning the offices, making fires, &c. He stated that he went into Gifford’s rooms on Saturday evening and prepared the fires for lighting, and then let the woman in to do the cleaning.
    The evidence, which it was claimed tended to prove negligence, was, that Grevalt, the janitor, and the woman employed by him, were in Gifford’s offices to clean the same, after Gifford and his clerks had left on Saturday evening. When the last clerk (Beggs) left, he stated that he had occasion to go into the water closet and that the stop cock and urinal were in good order. Two of Gifford’s clerks had keys of the office ; another key was sometimes left hanging in the office of Anderson, the agent, by the janitor. The janitor, or the woman in his service, was, according to the evidence, the last person in Gifford’s offices on Saturday night. There was no evidence that either of them opened the stop cock, or left it open ; nor was it not known how, or by what means, it came to be opened, and left open. There was evidence that the supply pipe connected with the mains in the street, and that the water did not always rise to the second story of the building. The evidence failed to show who had left the stop cock open, and it was entirely conjectural.
    To connect the defendants with such negligence, it was proved that Grevalt, the janitor, was employed by Moffat in his lifetime, and afterwards by the estate, to keep the house clean, as janitor of the building, to sweep the passages, and other duties in the agent’s office. He employed a woman to assist him in cleaning. He had a key of Gifford’s office, and was employed by him to sweep the office and dust it; wipe up the floor, and, in the winter, to take charge of the fires and ashes. There was also some evidence that a short time previously water had run down into the plaintiffs’ store from a water closet above, and the plaintiffs sent for Anderson, the agent, and he promised it should not occur again.
    The improper or insufficient construction of the urinal consisted in, its not having an overflow, so that if the holes at the bottom were closed with paper or any thing, the water would flow through the holes in the top; also in not having a “ safe ” with access to the pipe connecting with the waste pipe, so that if the urinal overflowed, the water could run from that pipe into the waste pipe.
    Some witnesses testified that the perforated holes at the bottom were sufficient, if unobstructed, to carry off a continuous flow of water from the supply pipe ; others testified that such holes were.not sufficient for such purposes. But all the witnesses agreed that there could not be an overflow, if proper precaution was taken to turn the stop cock after it had been used, so as to shut off the water.
    A motion was made to dismiss the complaint as to all the defendants.
    The court granted the motion as to the defendant Mount, and the plaintiffs excepted. The motion as to the other defendants was denied, and they excepted.
    After evidence on the part of the defendants, the justice sub-x ' Wmwnr-i----- ---- quitted the case to the jurv^ and charged, first, that if the overflow was caused by the negligence of the defendants, they were liable; and, second, that if the jury believed that the urinal, with its draw cock, was constructed improperly, or should not have been there at all; or that the safeguards that could possibly be placed there should have been placed there, and they believed that it was unsafe, they would be justified in finding for the plaintiffs, even if they should find that the defendants, or their servants, were not the immediate cause of the damage.
    The defendants requested the court to charge, that there was no legal evidence to make the defendants liable; that they were not liable for the act of any person, who, without their authority or assent, entered Gifford’s apartments and set the ■water running, and that there was no evidence that any person did go with their authority or assent; that it was no part of the duty of the janitor, towards the defendants, to inspect the urinal or stop cock on the premises of Gifford; that if the urinal and stop cock were so constructed that an overflow could not be caused, except by the negligence of some person who failed to close the stop cock when it should be done, such negligence did not make the defendants liable, unless it was the act of some person acting with their authority or consent; and that if-the urinal was properly constructed at the time of its construction, and continued to be sufficient, with ordinary care and prudence, the landlord was not liable because he did not, from time to time, adopt new improvements and additions.
    The justice refused to charge, as requested, further than he had already charged.
    The defendants excepted to the charge and refusals to charge.
    The plaintiffs had a verdict.
    A motion was made by the plaintiffs at the special term, upon a case and exceptions, for a new trial against the defendant Mount, which, was denied. A motion was also made by the defendants Cora and Myra Moffat at special term, upon a case and exceptions, for a new trial as to such defendants, which was also denied. iA
    Each party respectively appealed from the orders denying said motion for a new trial.
    The appeals were heard together.

      D. D. Field, for the plaintiffs.

      J. T. Brady, for the defendants.
   By the Court,

Mohell, J.

William B. Moffat, by his will, devised his real estate to his two infant daughters, the defendants Cora and Myra Moffat. The devise was in fee simple absolute, without condition or limitation. Upon the death of the testator, the devisees became seised, as tenants in common, and entitled to the rents and profits. Until the appointment of guardians of their estates, (2 R. S. 150, §§ 3,10; Vail v. Vail, 4 Paige, 317; Bradley v. Amidon, 10 id. 235,) the duty of collecting and receiving such rents and profits was imposed by the will upon the executors. But the executors took no estate whatever in the lands, their authority being a mere naked power to receive the rents, determinable at any time upon the appointment of guardians. (Cases supra.)

The action, therefore, was not maintainable against the defendant Mount, as owner, in either of the aspects in which the case was given , to the jury. He neither placed the fixture in the building, nor maintained it there. Nor does he seem, from the evidence, to have been an active or passive agent, ^producing or contributing to the injury. The owner of real .property may be liable'for the defective construction of his build- , ings or their appurtenances, without any immediate or active agency in the injury; but such liability is confined to the owner, and does not extend to agents, employees or servants of the owner.

There was no error, therefore, in dismissing the complaint, as to the defendant Mount, and the order denying a motion for a new trial, as to him, should be affirmed.

The case against the infant defendants was put to the jury upon two grounds: First. If the overflow was caused by the negligence of the defendants, they were liable ; and Second. If'the fixture was improperly constructed, or should not have been there at all ; or if all the safeguards that could possibly have been placed there, were not placed there, and the fixture was unsafe, the defendants were liable.

Upon the first proposition, it was not pretended that any act of negligence by the defendants, in person, or by their direction or authority, caused the injury. But it was claimed.. that the rule of respondeat superior applied, and that thev.ara .responsible for the negligence of their agents.^

If this case depended upon the ordinary principles applicable to principal and agent, or master and servant, and there was any evidence of negligence, it was proper to submit such question to the jury. A person capable in law of being a principal or master, renders himself liable for the want of skill or care of his agent or servant, the relation between such persons being upon the principle of agency. (Story on Agency, §308.) Quifacit per alium facitper se. An infant, however, is incapable in law, of appointing an agent. (Story Agency, § 6.) He cannot appdiS'aiPaltS^^^(2 R. S. 446, § 2,) nor sue or be sued, except by next friend or guardian. (Code, § 115.) JÍA~cannofgh^‘rTs^lF^lB^<°Tr^ri*!^. 116, § 1; People v. Dean, 3 Wend. 438 ;) is not liable on contract and generally has no legal capacity to’act for himself. DUcElegal incapacity, however, does not exempt him from the consequences of his tortious acts. In respect to those, he is held responsible, if doli capax when the wrong is done. JBnt snob, tortious acts must be ■.committed b-y the infant himself, or Under his immolate view, or by his direction or ajitboritv* ^shecannot create" an agency, he cannot appoint a servant, and therefore cannot delegate powers to another, nor can he guarantee or insure the fidelity, care or skill of such other.

The foundation of the rule respondeat superior, is that the principal holds out his agent as competent and skillful, and fit to be trusted, and thus, in effect, warrants his fidelity and good conduct in all matters within the scope of the agency. An infant being incapable of contracting, cannot-warrant the competency or skill, or care of a person, with whom the relation of agent cannot exist. To apply the rule, therefore, there must be an agency, and the act must be within the scope of the agency ; if not, the principal is not liable. (Paley’s Ag. 298.) So if the act be willful, the principal will not be responsible, unless it be within the general scope of authórity. (Weed v. Panama Railroad Co., 17 N. Y. Rep. 362.) All these rules necessarily include both the right and power to constitute the relation of master and servant. Such relation exists only in contract, and requires the same capacity in the contracting parties, as in the formation of any other agreement. If either is incapable of contracting, there is no mutuality, and neither is bound. (Cooke v. Oxley, 3 T. R. 653.)

The result of this review of the principles of agency is, that the liability of principals for the negligence or other misconduct of their agents, arises from the express or implied authority of the latter, and the implied guaranty of the former, and has its foundation in the contract, which creates the relation, and by which it is implied that persons shall not suffer by the negligence of those they employ. (Reeves' Dom. Rel. 3d ed. 519.) In the case of an infant these principles cannot be applied. He cannot in law become a master, or be responsible as a master, for the negligence or want of skill of his servant.

In England he cannot be an innkeeper, so as to be charged on the custom of the realm, for negligence. (Bac. Ab. tit. Infancy E.) Nor can he be a trespasser by prior or subsequent assent, but only for his own act. (Co. Lit. 180 b, n. 4.) He is not responsible even for his own act, if it occurred through his unskillfulness and want of knowledge, discretion and judgment, (Campbell v. Stakes, 2 Wend. 144;) and a contract upon which he is not liable, cannot be turned into a tort, for the purpose of charging him. (Jennings v. Rundall, 8 T. R. 335. Hunger v. Hess, 28 Barb. 75.)

• The defendants in this case could not appoint either Anderson, as agent of the estate, or Grevalt, as janitor of the building ; such appointments, had they been made, would have imposed no liability upon the defendants for any negligent act of the employees.

But there is no evidence that either the agent or the janitor received his appointment from the defendants. Anderson collected the rent for Mr. Mount, the executor, and Grevalt, the janitor, was continued in service by the estate.

The case, therefore, fails entirely in connecting the defendants with any person, for whose unlawful act they can be held responsible,. The only person suspected of having let the water on, (either the janitor or the woman employed by him,) was not the agent or servant of the defendants.

But furthermore, if they were the agents of the defendants,^ their authority did not extend over ^ Gifford's apartments. Grevalt testified, that he was employed to take a general superintendence of the house ; to see that the halls were kept clean, and the outer door closed. He Was employed by the occupants of rooms to clean and make fires. Gifford employed him, and he had access to Gifford’s office's by his authority and consent. There was no condition in Gifford’s lease that he should employ such persons as the landlord might select, and Grevalt, therefore, by virtue of his employment, became ^ the servant of Gifford. The services of the janitor, according to all the evidence, was confined, as respected the landjord^fQ > Theanvservices in ^the apartments of tenants. Eh was employed and paid by them, The evidence, therefore, coupled the person, whom the jury, it seems, inferred had produced or contributed to the injury, with Gifford, and not with the defendants.

But more than this^ I think the evidence of negligence was not sufficient to go to the jury.

The burden of proof was on ' the. plaintiffs, and although circumstantial evidence may be sufficient, (Holbrook v. Utica and Schenectady R. R. Co., 12 N. Y. Rep. 236,) it must be of such a character, as to lead directly to the conclusion that,, some designated person was in fault. It is not pretended that the prodTñTTirTrag^sKo^spOT^Poi11^ out ^ie person by whose neglect the water in Gifford’s office was left to flow. It was not shownwhosejiand-tuxned the faucet, nor who omitted ^to shutjfche^water off. That it was the janitor or the woman, was mere supposition" and conjecture. The only circumstance at all tending to such conclusion was that the former went into Gifford’s room to prepare the fires for lighting and afterwards let . the woman in, to clean. There was quite as much reason to suspect or conjecture that Mr. Gifford or one of his clerks had 1 left the faucet open. The urinal was for the exclusive use of [: • Gifford’s offices, and the woman was directed to obtain water for cleaning from another part of the building. The pipe to which the stop cock was attached, received its supply of water from the street main. It was proved that the water would not always rise to the faucet, owing to the lack of supply in the distributing reservoirs, and that sometimes it would not run at all. It was quite possible that one of Gifford's clerks, desiring to rinse the basin, may have turned the faucet, and the water failing, left it open ; and its condition would not attract attention or excite observation. Besides, I think, the proximate cause of the overflow, was as much the tobacco leaves.and paper, which had' negligently been thrown into the basin, as the omission to shut off the draw cock. Some of the witnesses, especially Beggs, one of Gifford’s clerks, who examined it daily, having testified that the holes at the bottom, if unobstructed, were sufficient to discharge all the water from the supply pipe, even if left constantly running. Beggs further testified he was the last person who left the office, and that he examined the urinal and it was in good order, and that the faucet was' shut off. Ifj however, the water did not not flow and the pipe emitted no sound, the clerk’s attention would not probably be called to the condition of the faucet, and he simply said, on his cross-examination, that it was in order.

It seems to me, the evidence failed to designate the agent whose act occasioned the damage, and that the jury could- not conscientiously say it was the janitor or the woman, there being evidence that it might have occurred through the fault of another person.

The second proposition of the learned justice, was, that if the fixture was improperly constructed ; or should not have been there at all; or if all safeguards which could possibly be placed there, should have been placed there, and the jury believed that the urinal was unsafe, the defendants were Rabie.

If the facts were such as would render an adult owner Rabie' under this proposition, I am inclined to think such liability / would also attach to infant owners. The liability in either j case rests, if it has a foundation at all, upon the maxim sic f títere tuo, &c. and not upon any contract or obRgation implied 1 from the relation of the parties.

The principle laid down by the learned justice, follows in its scope, that class of cases where owners are held responsible as insurers, without regard to the question of negligence. (Dygert v. Schenck, 23 Wend. 446. Congreve v. Smith, 18 N. Y. Rep. 79. Id. 84. Davenport v. Ruckman, 10 Bosw. 20.) In all the cases cited it was held that any use of a public highway or street for private purposes, was unlawful, and therefore any obstruction placed upon it, or any thing done below the surface, which rendered its use hazardous, was a public nuisance, and any person constructing or continuing such nuisance was responsible to the public and to individuals receiving special damage therefrom. These decisions were predicated upon the unlawful use of the highway by individuals for their private purposes, and the liability was fixed, without regard to the care and skill bestowed in erecting the obstructions. If an injury occurred it was the fault of the individual who had caused the nuisance ; and no prudence, care or skill or perfectness in construction or finish, to render it safe, would excuse the fault. As was said in Davenport v. Ruckman, (supra,) a person making openings in the highway for his private use is an insurer of all persons who pass over the opening, however carefully protected.

I think it may be doubted, however, whether the principle of these cases, applies to questions arising between landlord and tenant. The relation between such parties is founded on contract, and there cannot, in general, be an implication of duty or obligation, upon which a responsibility can attach. Hence, there can be no implied contract of warranty on the part of the landlord, that the building shall continue fit for the purposes for which it was demised j there being no covenant to repair, (Howard v. Doolittle, 3 Duer, 464,) nor an implied covenant of warranty that the premises are in a tenantable condition. (Cleves v. Willoughby, 7 Hill, 86.)

All analogy between the cases referred to and the one at bar (is lost in the fact that the fixture erected and maintained i upon the premises, was not unlaiuful, and was not per se a nuisance, and therefore the question of negligence becomes material.

The owner’s liability then, rests upon his misfeasance in constructing an unsafe fixture in another part of the premises, the insecurity of which caused the damage.

It was not wholly a question whether the construction was suitable for the purpose intended, nor whether it was positively safe. Persons might differ as to both points, and there is no principle which admits a liability for a mere partial or temporary unfitness without express negligence. But the question was whether under all circumstances, at all times, with the aid of ordinary skill, and the exercise of ordinary care, the fixture was dangerous. The negligence of the party injured contributing to the injury, will defeat a recovery, however negligent the other party may be; so will the concurrent negligence of a tenant, of another portion of the building, defeat an action against the common landlord.

The fixture complained of, was put in the building when it was erected in 1852, and had remained there without alteration down to the accident, without injury to any one. It was constructed with a basin, five inches deep in the center and a foot in diameter on the top, perforated with five or six holes. Above it was a supply pipe, with a stop cock to shut off the water after using it to rinse or cleanse the basin. There was a difference among the witnesses whether the holes in the bottom of the basin would discharge all the water, if the supply was kept continually running. Beggs, whose knowledge was experimental, said they would, if unobstructed. Other witnesses were of opinion they would not. The construction of the fixture was criticised by several experts, some of whom objected that it did not contain an overflow, and others that it did not contain a supplemental flow-pipe of zinc or lead in the basin, inclining towards the waste pipe. But all the witnesses agreed, that if proper precaution was taken and the stop cock was turned off, there could not he an overflow, and that an overflow could occur only hy leaving the stop cock turned on

Then, according to all the evidence, the urinal was suitable, sufficient and safe, if it was used with care, and it became unsafe, only if it was used without care.

One of the requests to charge, that if the urinal and stop cock were so constructed that an overflow could not be caused, except by the negligence of some person who failed to close it, the defendants would not be liable, it seems to me, was correct and eminently proper.

I have already endeavored to show, that the owners were not insurers, or liable at all events, without regard to their negligence. If I have succeeded, then it follows, that they are liable only for negligence, and such, I understand to be the dictum in Eakin v. Brown, (1 E. D. Smith, 36,) where Judge Woodruff says : “ If the injury result from the negligence of the owner, either in constructing or upholding the freehold, he is responsible ; ” but, he adds, “if it result from the negligence of the tenant, in any manner, he is liable.”

The liability of carriers of passengers rests as well on contract as for negligence, (Weed v. Panama R. R. Co., 17 N. Y. Rep. 362,) and a breach of a contract may result from negligence. In that class of cases the rule is strict, that the carrier warrants the passengers that his vehicle is equal to the journey, (Bremner v. Williams, 1 Carr. & P. 414,) and he is bound absolutely, and irrespective of negligence, to provide road worthy' vehicles, (Alden v. N. Y. Central R. R. Co., 26 N. Y. Rep. 102,) and to adopt all known and tested improvements for the safety of passengers. These cases rest upon the principle that carriers of persons are not only bound to a very high degree of caution, and should provide, as far as human care and foresight can go, for their security, but that they absolutely warrant their safe conveyance. Ho such principle, however, is applicable to persons standing in the relation occupied by the parties to this suit, nor can any case be found which makes an owner an insurer of the sufficiency of his structures. If, then, the fixture was suitable and safe, if used with care, no responsibility can rest upon the owner ; and if by its negligence or careless- use, it is made to cause an injury, the person guilty of such negligence must be looked to for damages.

The owner of a house is not bound to adopt all new inventions or improvements, as is required of carriers of passengers. The law does not impose such a duty. Iron pipe is now much, used, instead of lead pipe, as conduits in buildings, because of danger of leakage from the latter through the gnawing of rats ; but is every landlord bound to remove his lead pipe and put iron pipe in its stead ? To require it would make him absolutely warrant the safety and sufficiency of the lead pipe, without regard to any negligence in suffering it to be out of repair or to go to decay.

From these views, if they are correct, it follows, that the whole duty of owners towards their tenants is discharged, if the water fixtures in their buildings are so constructed, that in their careful use they perform the purposes of their construction. They do not warrant or insure against their negligent use, and are not liable, merely because some person, for whom they are not responsible, turned a faucet or negligently left it open. The submission, therefore, of any question to the jury of a supposed unsuitableness or insufficiency of the structure was improper. The evidence was uncontradicted, that it was safe if used with care ; and there being no proof that the defendants left it open, or caused it to be left open, the justice should have directed a verdict for the defendants.

The order denying their motion for a new trial, should therefore be reversed and a new trial ordered as to them, with costs to appellants, to abide the event. The order denying the plaintiffs’ motion for a new trial, as to the defendant Mount, should be affirmed, with costs.


source: Caselaw Access Project

author: Moueia, J.

license: Public Domain

text:
    Henry D. Brookman et al. plaintiffs, vs. Benjamin F. Metcalf, defendant.
    1. During the pendency of an action upon a promissory note, against the maker, a promise hy the defendant, that if the plaintiffs will suspend bringing an action upon another note given hy him at the same time, he, the defendant, will abide the decision in the pending action, even if it amounted to a promise to pay, would not be sufficient to take the note out of the operation of the statute of limitations if then outlawed. The Code requires such a promise to be in writing, and signed by the party to be charged.
    2. But where the offer to abide by the decision of the action upon the first note was made and accepted before the statute of limitations had attached to the second note, the consideration of the two notes being the same, they being subject to the same defenses, and a suit being about to be commenced upon the second note, pending the first action, the defendant promised the plaintifis that if they would suspend it he would abide by the decision of the first; and they, in consequence of such offer, delayed bringing an action upon the second note until after the decision of the action upon the first note, and when the statute of limitations had attached to the former; Held that upon the doctrine ofe quitable estoppel, or estoppel in pais, the defendant ought not to be allowed set up the statute as a defense.
    3. It is not essential to an equitable estoppel that the party creating it should design to mislead. If his act was calculated to mislead, and actually has misled another, who acted upon it in good faith, it is enough for the purpose.
    4. In an action upon a lost note a tender of the bond of indemnity required by the statute, at the trial, and before verdict, is sufficient.
    (Before Mowell, Gabvist and McCuuir, JJ.)
    Heard February 4, 1867;
    decided April 1, 1867.
    On the 8th of Eovember, 1855, the defendant made two promissory notes, each for five hundred dollars, payable respectively in six and twelve months after date, to his own order.
    The complaint alleged that, through successive indorsements, the notes were transferred to the plaintiffs ; that they were not paid ; and that after both had matured, and on or about the 11th of February, 1857, the plaintiffs commenced an action upon the six months note. That the defendant put in an answer to the complaint in such action ; that the issue was tried by a referee, who dismissed the complaint, with costs. That the plaintiffs appealed from such judgment to the general term, where the judgment was reversed, and a new trial ordered. That the defendant thereupon appealed to the Court of Appeals, stipulating that if such order granting a new trial was affirmed, judgment absolute should be entered against him in favor of the plaintiffs. That the Court of Appeals, on the 18th day of July, 1865, affirmed such order ; and judgment absolute thereupon was entered against the defendant.
    The complaint further alleged, that while said appeal to the Court of Appeals was pending, and in the year 1860, the plaintiffs directed their attorney to commence an action upon the twelve months note, and so informed the defendant; “whereupon, the defendant requested the plaintiffs not to commence such action against him, and to forbear enforcing judgment, while the appeal in the other case was pending; and to induce the other plaintiffs so to forbear, he, the defendant, then and there, in consideration of the premises and of such forbearance, promised and agreed to and with the plaintiffs, that if they would desist from commencing such or any action thereon to recover the same until after the decision and judgment should be rendered’ upon the appeal as aforesaid, he would immedi-. ately upon such decision and judgment, if the same should be against him, pay the amount due for principal and interest upon said note, without any action thereon.” That thereupon the plaintiffs revoked the said order to their attorney, and did not commence any action upon said note.
    The complaint further alleged, that after the decision of the Court of Appeals, affirming said order, and rendering judgment absolute, as aforesaid, they demanded of the defendant payment of said twelve months note ; which was refused.
    The defendant denied that he requested the plaintiffs not to commence any action against him or to forbear enforcing judgment while the appeal in the other case was pending; and he alleged that the cause of action did not accrue within six years before the commencement thereof.
    The action was tried before Justice Jorras and a jury.
    Henry D. Brookman, one of the plaintiffs, testified that after the decision of the general term, he directed a suit to be commenced on the second note. About that time he met the defendant in Wall street, and told him he was going to sue him on the second note ; his reply was, that he did not want to have any further litigation in the matter ; and if Brookman would suspend it, he would abide by the decision of the first. He, the plaintiff, then went to his attorney, and he laid it all over. This conversation was about the time the defendant appealed to the Court of Appeals, and in the spring of 1860. The order to commence the suit upon the second note, and the subsequent countermand, were also testified to by the attorney.
    A motion was made to dismiss the complaint on the grounds: (1.) That the acknowledgement or promise relied on by the plaintiffs was not sufficient evidence of a new or continuing contract to take the case out of the statute of limitations, because the same was not in writing signed by the party to be charged thereby; and (2.) That the plaintiffs had not tendered the bond required by the statute in a suit upon a lost note, there having been evidence that the note in suit was lost. The motion was denied, and the defendant excepted.
    The defendant testified that he had no such conversation with the plaintiff as he, the plaintiff, had testified to.
    The plaintiffs tendered to the court a bond, as required by the statute in a suit upon a lost note ; which bond was approved by the court.
    The case was submitted to the jury, who found for the plaintiffs.
    The exceptions were ordered to be heard in the first instance at the general term, and judgment in the meantime to be suspended.

      8. P. Nash, for the plaintiffs.
    I. The undertaking sued upon was not “ a new or continuing contract, whereby to take the case out of the operation of” the statute of limitations, within the meaning of § 110 of the Code, and was valid, though not in writing. 1. The acknowledgment or promise contemplated by this section is one which is simply a renewal of the original promise, not an undertaking of a different character and on different terms, though based upon the original liability. 2. In the case at bar, the promise was in legal effect this: I dispute your right to recover at all on the two notes. You have a decision in your favor on the first, from which I am about appealing. If you will not sue on the second, I will agree not to dispute your right to recover upon it, if I am held liable on the first, and will pay as soon as such liability is adjudged. On such a promise the statute of limitations does not begin to run till the liability is finally adjudged. The fact that it has run on the original demand is no bar. This modified contract, which the creditor has taken in lieu of enforcing his original claim, is based on a new consideration, and is another contract in all its terms.
    II. All the cases which have been decided under the Code, have been cases where the new promise or acknowledgment was simply in recognition of the original debt, and where there was no colorable ground for starting a fresh liability from the date of the new promise. . If A buys goods in 1860, and in 1862 promises to pay for them, the plaintiff cannot date the liability from 1862, because a mere reiteration of promises leaves the cause of action where it was. Such was the case of Hope v. Bogart, (1 Hilt. 544;) Esselstyn v. Weeks, (2 Kern. 635 ;) and Wadsworth v. Thomas, (7 Barb. 445,) which merely held that promises barred before the Code took effect could not be revived by a verbal promise made afterwards. Van Alen v. Feltz, (32 Barb. 139,) went further and held that, though not barred when the Code took effect, the new promise must still be in writing. All these cases are upon the construction of section 73 of the Code, and do not touch the case at bar.
    III. The defendant is estopped from pleading the statute. By his own conduct he induced the plaintiffs not to sue, and should not now be permitted to take advantage of his own wrong. (See Gaylord v. Van Loan, 15 Wend. 308, 310; Brown v. Sprague, 5 Denio, 545.)

      Liv. K. Miller, for the defendant.
    I. The court erred in refusing to dismiss the complaint on both the grounds claimed, because,

      (a.) The statute is peremptory, that the bond must be given before the recovery can be.had. (3 R. S. 5th ed. 691, §§ 106-108. Desmond v. Rice, 1 Hilt. 530. Smith v. Young, 2 Barb. 545. Des Arts v. Leggett, 5 Duer, 156. 16 N. Y. Rep. 582.)
    (6.) The promise was not sufficient to take the case out of the statute, not being in writing. (Code, § 110. Wadsworth v. Thomas, 7 Barb. 445. Allen v. Feltz., 32 id. 139. Hope v. Bogart, 1 Hilt. 544. See als.o Esslestyn v. Weeks, 12 N. Y. Rep. 635; Wright v. Weeks, 25 id. 153, 157.)
    II. The Court of Appeals, in Winchell v. Hicks, (18 N. Y. Rep. 560,) hold, that in an action upon a debt otherwise barred by the statute, the action must be upon the new promise, not upon the original debt. How, in this case, if the action is upon the new promise, it fails.

      (a.) Because of the statute, not being in writing. (§ 110 Code.)

      (b.) Because it was not to be performed within a year, and is void under the statute of frauds. (3 R. S. 5th ed. 221.)
    (c.) Because the promise was not absolute and unequivocal, such as the cases require. (See Commercial Mutual Ins. Co. v. Brett, 44 Barb. 489.) It was contingent. If the Court of Appeals should decide against the defendant, then he would pay. It did not become an absolute promise until such decision was made, in 1865. Long before then the debt had become barred, and the promise of no effect.
    III. But this action is founded on the note; The contract is to pay the note. The promise and liability were to pay the note. The plaintiffs are owners of said note.
    Finally and conclusively, the plaintiffs, at the trial, tendered the bond required in an action on a lost note ; and,
    IV. The action on the note being barred by the statute, this judgment should be reversed, with costs.
   By the Court,

Moueia, J.

The promise of the defendant that if the plaintiffs would suspend bringing an action upon the second note, he would abide by the decision of the first action, if it amounted to a promise to pay, was not sufficient to take the note out of the operation of the statute of limitations. Such promise is now required to be in writing, (Code, § 110,) and signed by the party to be charged.

The offer, however, to abide by the decision of the action upon the first note, was made and accepted before the statute of limitations attached to the second note. The consideration of the two notes seems to have been the same, and they were subject to the same defenses. A suit was about being commenced upon the second note before the determination of the first action, probably with the view of saving the statute. The defendant, upon being informed of such intended suit, stated to the plaintiffs that he did not want any further litigation in the matter; and that, if they would suspend it, he would abide by the decision of the first. Influenced by such offer/ the plaintiffs delayed bringing an action upon the second note until after the decision of the action upon the first noté, and until after the statute of limitations had attached. These facts are found in the plaintiffs'" favor by the verdict, which is general upon all the issues.

It seems to me, upon the doctrine of equitable estoppel, or estoppel in pais, the defendant ought not to be allowed to disregard his engagement, and set the statute up as a defense.

The offer of the defendant was made with the intention of influencing the plaintiffs, in reference to their contemplated suit upon the second note. The plaintiffs, acting under such influence, suspended all proceedings, and continued passive until the decision of the first action. Ho one can doubt, and so the jury found, that the suspension of action upon the second note was in consequence of the promise of the defendant to abide by the first suit. It is not necessary, to an equitable estoppel, that the. party should design to mislead. If his act was calculated to mislead, and actually has misled another, who acted upon it in good faith, it is enough. (Manufacturers and Traders’ Bank v. Hazard, 30 N. Y. Rep. 226.)

Mr. Parsons states the rule thus : “ When a man has made a declaration or a representation, or caused, or, in some cases, not prevented, a false impression, or done some significant act, with intent that others should rely and act thereon, and upon which others have honestly relied and acted, he shall not he permitted to prove that the representation was false, or the act unauthorized or ineffectual, if any injury would occur to the innocent party, who had acted in full faith in its truth or validity.” (2 Pars, on Cont. 340.)

Instances of estoppels in pais are numerous. A maker of a promissory note, having represented to the holder that it was given for value received, cannot set up the defense of usury. Holmes v. Williams, 10 Paige, 326. Clark v. Sisson, 4 Duer, 408. Ferguson v. Hamilton, 35 Barb. 427.) In St. John v. Roberts, (31 N. Y. Rep. 441,) the indorsers of a promissory note, who had caused the note to be sold at public auction, were estopped from setting up a want of demand and protest.

In Gaylord v. Van Loan, (15 Wend. 308,) the defendant, upon being applied to for payment of certain demands, the person applying saying the demands must be sued unless they were renewed, answered, that he would not avail himself of the statute, and a suit need not be brought on that account; held, an estoppel. And in Brown v. Sprague, (5 Denio, 545,) in several ejectment suits, there was an agreement that all should abide the result of one, and proceedings be stayed in the others ; and it was held, that the defendant should abide by his engagement.

The effect of the defendant’s promise to abide by the decision of the first suit, was to postpone all action upon the second note until after the statute had attached. There was no negligence on the part of the plaintiffs ; they were about to proceed, to save the statute, when they were met by the defendant’s promise, and, in good faith, acted upon it. The case is stronger against the defendant than Gaylord v. Van Loan, (supra,) and he must be held to his engagement. ' The tender of the bond of indemnity at the trial, arid Before verdict, was sufficient. (2 R. S. 406, § 76. Des Arts v. Leggett, 5 Duer, 156.)

The exceptions must be overruled, and judgment ordered for the plaintiffs on the verdict.