author: O’Brien, J.:

text:
    Jacob A. Zimmermann and Joseph J. Zimmermann, Appellants, v. Christian Jourgensen, Respondent.

      Building contract — completion of the work by the owner — right of the contractor to recover payment under the contract — substantial performance — evidence.

    In an action brought on a building contract, by the contractors against the owner, to recover a balance claimed to be due under the contract, which fixed the price to be paid the plaintiffs for the entire work at $14,199, it appeared that, after the performance of a certain amount of work by the plaintiffs and the payment to them of the installments accrued, the- defendant, under a provision of the contract, forbade the plaintiffs to continue the work, on the ground of their failure to furnish a sufficiency of material and workmen, and took up and completed the work himself.
    The plaintiffs claimed that the work was substantially completed when the defendant took it up, and that they were entitled to the entire balance of the contract price, less a certain allowance to the defendant for the work done by him.
    It appeared that when the defendant took up the work, the premises were unfit for occupancy, and that, upon the plaintiff’s own theory, the cost of completion would have been more than $1,000, and upon the defendant’s theory, it was more than $6,000; and that there was imperfect work which had to be done over by the defendant at a cost of $175.

      Held, that it was a serious question whether this state of facts was not an insuperable bar to any recovery by the plaintiffs, as it excluded them from the benefit of the rule — that when a builder has in good faith intended to comply with the contract, and has substantially complied with it, although there may be slight defects caused by inadvertence or unintentional omission, he may recover the contract price, less the damage on account of such defects.
    It appeared that more was expended by the defendant to complete the building than remained unpaid upon the contract, and it was claimed by the plaintiffs that this was caused by the defendants departing 'from the plans and specifications and introducing extra work. The contract, however, provided for changes in the plans and specifications, and that the cost thereof should be added to or deducted from the amount of the contract, as the case might be.

      Held, that it was not the duty of the defendant, after the plaintiffs had unreasonably delayed their work, and failed to provide necessary materials and sufficient workmen, to adhere strictly to the plans and specifications, to his own prejudice, merely for the purpose of having correct accounts at the completion of the work; and that, as it was not shown that any changes in the plans and specifications were made in bad faith or with a view to injuriously affect the plaintiffs, they had no reason to complain.
    On the trial before .the referee, a question put by the plaintiffs, to the carpenter who finished the work for the defendant, as to whether he was able to state how much of the work that he did was embraced in the plans and specifications, was objected to and the objection sustained upon the ground that the specifications would speak for themselves. The witness had testified fully as to what work he did, and the specifications were present for examination.

      EM, that the question was properly excluded, since it called for the conclusion of the witness upon a matter as to which the referee was competent and able to draw a conclusion for himself.
    Certain incompetent evidence on the part, of the defendant was admitted, over the objections of the plaintiffs, but it appeared that this evidence was upon points as to which the referee found in favor of the plaintiffs, although the case was decided in favor of the defendant.

      Held, that, under these circumstances, the rulings complained of did no harm to the plaintiffs and afforded no ground for disturbing the judgment.
    Appeal by tbe plaintiffs, Jacob A. Zimmermann and Joseph J. Zimmermann, from a judgment of tbe Supreme Court, entered in tbe office of tbe - clerk of tbe city and county of New York on tbe 24th day of December, 1892, upon tbe report of a referee dismissing tbe complaint upon tbe merits and in favor of tbe defendant upon a counterclaim.

      J. G. Flammer, for tbe appellants.

      Frcmk ddudd, for tbe respondent.
   O’Brien, J.:

This is tbe second time this action has come before this General Term for review. It was brought on a building contract between plaintiffs as contractors and defendant as owner to recover a balance claimed by plaintiffs to be due for making alterations and additions to defendant’s building in Maiden Lane in this city under such written contract. By its terms tbe contract provided for tbe payment to plaintiffs of the sum of $14,199 for the entire work, in the following manner : $4,000 when the third tier of beams was placed in position, $4,000 when the roof was on, and the balance, $6,199, ten days after the entire work was completed. Although no time was specified in the contract, it was insisted by defendant that May 1, 1890, was agreed upon as the date of completion, but the referee has found against this contention, holding that no time was agreed upon between the parties within which the said work should be finished.

Upon the execution of the contract, which was made in March, 1890, the plaintiffs commenced work thereunder and continued until August twentieth, when the defendant, availing himself of a clause in the contract, entered into possession of the premises and elected to complete the work himself for and on account of plaintiffs, claiming that they had neglected to supply a sufficiency of material and workmen.

The first two installments, $4,000 each, having been paid, there would have been due, had the plaintiffs fully completed their contract, $6,199, in addition to an unpaid balance of $355 which, as found by the referee, was due plaintiffs for extra work performed at defendant’s request. The plaintiffs allege that defendant would be entitled to an allowance on the final payment of $1,118 for completing the work; and it is the entire balance together with |>ay for the extra work, less such allowance to defendant, for which plaintiffs demand judgment.

The plaintiffs in their complaint allege that the work was substantially finished when defendant took possession of the premises, and it is seemingly their theory that it is the entire contract price, less what would be the reasonable value of completion, which should determine the amount for which they are entitled to judgment. We think, however, that there can be no dispute upon the evidence as furnished by the plaintiffs themselves, that when the defendant, after service of a notice upon the plaintiffs, assumed the right to take up the work and complete it himself, it was not substantially finished. The testimony shows that upon that date the premises were unfit for occupancy — glass flooring half laid, floor and ceilings wanting, and portions of the building exposed to the weather. If the plaintiffs had abandoned their work at that stage, we fail to see how they would have been entitled to recover anything, because upon such facts showing that the cost of completion, according to plaintiffs’ own theory, would be more than $1,000 ' and according to the defendant’s more than $6,000, there would have been no such substantial completion as, under the authorities, would have entitled the plaintiffs to recover the contract price less the amount required to complete the building.

The familiar case of Woodward v. Fuller (80 N. Y. 312), states under what circumstances a recovery may be had on a contract without a literal or exact performance of it, in the following language: “Where a builder has in good faith intended to comply with the contract, and has substantially complied with it, although there may be slight defects caused by inadvertence or unintentional omissions, he may recover the contract price, less the damage on account of such defects. The defects must not run through the whole, nor be so essential as that the object of the parties, to have a specified amount of work done in a particular way, is not accomplished.”

In addition to the work which then remained to be done, there was imperfect work which had to be done over, and which, as found by the referee, cost defendant $115. The existence of this condition of affairs, showing that a portion of plaintiff’s work had been imperfectly done, requiring the expenditure of time and money by the defendant, raises a serious question as to plaintiffs’ right to maintain the action at all. We do not, however, decide that this is an insuperable bar to a recovery, but will proceed to dispose of the case upon the merits as they were presented before the referee ; but it is proper that the matter should be adverted to, as it is also that we should endeavor to ascertain from the complaint itself the theory upon which the plaintiffs base thoir right to recover.

As already remarked, we must discard the theory in one part of the complaint presented, that plaintiffs are entitled to recover because, having substantially performed their contract, they should receive the entire amount thereunder provided to be paid, less what was necessary to be expended by the defendant to entirely finish the work. In another paragraph of the complaint it is alleged that, after commencing the plaintiffs continued the work “conscientiously, diligently and with all possible speed and used their best endeavors to get prompt and sufficient supplies of the building material to be used in the construction of the said work until August 20th, 1890, when the defendant refused to permit the plaintiffs to complete the said work and prohibited them, their agents and servants from entering the said buildings, Nos. 96 and 98 Maiden lane, and notified the plaintiffs that he would finish the said building and deduct the expense thereof from the amount still due and owing to the plaintiffs under the said contract.”

Had the plaintiffs succeeded in sustaining these allegations, then they would have been entitled to recover damages as against the defendant for a breach of the contract on his part, because the charge thus made is the exact equivalent of saying that the defendant wrongfully broke his contract. Upon such facts, the plaintiffs would have had three remedies in law: First, they could treat the contract as at an end, and claim damages for its breach; second, they could recover on a qua/ntum meruit for all work done by them up to the breach, which remained unpaid for; or, third, they could recover the full contract price if the contract was substantially performed. It is evident from the testimony that plaintiffs did not elect to proceed upon either the first or, the second of the remedies above mentioned, and we are, therefore, left to assume that recovery was sought upon the theory that the contract was substantially performed.

Eor reasons already given, it is difficult to see how a recovery could be had upon this ground. But as the case was fully tried out, it is perhaps right that we should treat it as the parties themselves did seemingly upon the trial, by examining into the questions in dispute between them, regardless of the issues as made by the pleadings, determine whether, upon the facts as proved and found by the referee, the conclusions of the latter were sound.

Upon conflicting evidence, the referee has found, and we see no reason to disturb such findings, as follows:

Sixth. That for some time prior to the loth day of August, 1890, plaintiffs refused and neglected to supply sufficient workmen and material for the proper prosecution of the said work. That on the said day the defendant served on the plaintiffs, a notice in writing in accordance'with the said fourth section of said contract; that for three days thereafter and down to said August 20th, 1890, plaintiffs still failed, neglected and refused to supply a sufficiency of material and workmen, and thereupon the defendant excluded said plaintiffs, their agents and servants from said premises, and proceeded to complete said work himself.
Seventh. That a large portion of the work as called for by said contract, constituting a material and substantial part of said work,. remained unfinished on the said 20th day of August, 1890, when the plaintiffs were so forbidden to finish said work.”

Upon these facts the defendant, under the terms of the fourth clause of the contract, was entitled to finish the work and deduct the expense from the amount due under the contract.

That more was expended to complete the building in the manner in which it was completed than remained unpaid under the contract, is abundantly shown by the evidence. It is insisted, however, by the plaintiffs that the large expenditures thus made were the result of departing from the plans and specifications, and of introducing additional and extra work, which, if the defendant were entitled to deduct from the contract price, would result in injustice to them. It should be remembered, however, that the contract itself provided for changes in the plans and specifications in language as follows:

“ Thvrcl. Should the owner at any time during the progress of the said building request any alterations, deviation, addition or omission from the said contract, he shall be at liberty to do so, and the same shall in no way affect or make void the contract, but will be added to or deducted from the amount of the contract, as the case may be, by a fair and reasonable valuation.”

This provision, as well as the specifications themselves, show that it was in the contemplation of the parties, in view of the nature of the work, that variations from the plans and specifications would be necessary. And as it was not shown that any changes in such plans and specifications were made in bad faith or with a view to injuriously affecting the plaintiffs, we do not see that they have any reason to complain. It certainly was not the' duty of the defendant, after the plaintiffs had unreasonably delayed their work and failed to provide necessary material and sufficient workmen, merely for the purpose of having correct account's at the completion of the work, to adhere strictly to the plans and specifications, to his own prejudice. It would of course have saved much question and presented the matter in a clearer way if the defendant had kept a more exact statement of the payments made for work done under the plans and specifications separately from the amounts expended for such deviations and alterations from the plans and specifications as were required by the nature of the work.

It was suggested in the former opinion of this General Term that the burden was upon the- plaintiff of showing what it would cost defendant to complete the contract according to the plans and specifications, and that it was the contract price, less such cost, that they could alone recover. Exception is taken to this statement of the law; but if we assume the plaintiffs’ view to be correct, that the burden was upon the defendant, it was met, as far as the defendant had it in his power to meet it, by his presenting a detailed statement of the amounts paid all the different workmen, and by showing what such payments were made for. And after a careful examination, having the plans and specifications before him, the referee reached the conclusion upon such testimony that the cost to defendant of completing the contract was more than the final payment which would have been due to the plaintiffs had they themselves finished the work. As against such evidence, showing as far as it was possible what the completion of the work cost, there was presented by the plaintiffs their view of what they regarded as the fair and reasonable value of such work. No sufficient reason has been assigned why we should differ with the referee, who, upon all the-testimony, and after analyzing the proofs, reached a conclusion as to what was necessary to be expended by the defendant in order to complete the building.

In addition to the merits, the appellants rely upon certain rulings, of the referee in the admission and exclusion of evidence.

The first relates to a question asked of the carpenter who finished the work for defendant, whether he was able to state how much of the work that he did was embraced or comprised in the plans and specifications. This was objected to, and the objection sustained upon the ground that the specifications would speak for themselves.. This witness had testified fully as to what work he did, and the specifications were present for examination. The question called for the witness’ conclusion as to what portion of the work done by him he thought was embraced within the specifications, with respect 'townich, the referee was competent and able to draw conclusions for himself.

Another error assigned was the permitting the defendant to give testimony as to whether or not there was a bulletin or directory for tenants on the inside of the building. We agree with the appellants that such evidence was entirely incompetent, but, as shown by the conclusions reached by the referee, entirely harmless. It was, no doubt, introduced for the purpose of sustaining the defendant’s view that there was an agreement that the work was to be completed by May first, but as the referee found with the plaintiffs upon this point, and against the defendant, it is evident that no harm was done by admitting this evidence.

The same may be said of the next exception, which relates to a ruling by the referee, admitting the entire conversation at the time of the execution of the contract, for the purpose of varying its terms. The ruling was erroneous; but as the conversation introduced was for the purpose of supporting the defendant’s theory that the work was to be completed by May first, and as the referee has found against the defendant upon that point, the ruling did no harm.

The next exception is as to testimony allowed as to the cause of refusal of tenants to take offices in the building. This, of course, was incompetent, but as it was introduced for the purpose of showing loss of rentals, which was not allowed by the referee, who, upon this subject, found with the plaintiffs, it presents no reason for disturbing the judgment.

Our conclusion, therefore, upon an examination of the entire record, is that the disputed questions between the parties were fully and fairly tried; that the substantial issue as to the exact cost to defendant of the completion of the work subsequent to his having taken possession thereof on August twentieth, was upon conflicting testimony presented for the consideration of the referee, and that we find no ground for interfering with his findings or with the conclusions which necessarily follow, resulting as they did in the judgment appealed from.

The judgment- should, therefore, be affirmed, with costs.

Follett, J., concurred; Yan Brunt, P. J., concurred in result.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Lawrence, J.:

license: Public Domain

text:
    In the Matter of the Estate of Samuel Wood, Deceased; Augustus J. Hewlett and Others, Petitioners, Appellants; Jennie E. Wood, as Administratrix, etc., Respondent.

      Administratrix with the will annexed — application for revocation of letters, under section 2685 of the Code of Givil Procedure.

    On appeal from a decree of a Surrogate's Court denying an application made, under section 2685 of the Code of Civil Procedure, by persons interested in an estate, for the revocation of letters of administration, with the will annexed, which had been issued to an administratrix, in which proceeding an allegation of waste was based upon the charge that the administratrix had sold a piece of land at less than its value, it appeared that, although the affidavits presented on the part of the petitioners placed the value of the property at a much greater sum, there were affidavits produced before the surrogate tending to show that the sum for which the property was sold by the administratrix was its fair and reasonable value.

      Meld, that in view of this conflict of evidence, the petitioners had not made out such a case of improvidence against the administratrix as would justify her removal.
    Another ground of the application for revocation of the letters was that the administratrix was under the control of an attorney who, with her connivance, had committed a fraud in securing an opinion of the General Term of the Supreme Court upon an agreed case.

      Held, that the facts in connection with this allegation did not call for the removal of the administratrix, since, although the submission was made under the advice of the attorney,, and it appeared that the General Term recalled the decision which it had rendered thereon, and that while the conduct of the attorney may have been improper, it was not established that the administratrix knew or had reason to believe that there was any impropriety in his action.
    The application was also based upon an allegation that the administratrix had concealed herself so that process could not be served upon her.

      Meld, that this fact was not sufficiently substantiated to warrant a reversal of the decision of the surrogate.
    Appeal by the petitioners, Augustus J. Hewlett and others, from a decree of the Surrogate’s Court of the county of New York, entered on the 3d day of June, 1892, denying their application for the revocation of letters of administration theretofore granted to Jennie E. Wood.

      Julien T. Davies and Byron Tra/ver, for the appellants.

      B. E. Valentme, for the respondent.
   Lawrence, J.:

This is an appeal from an order or decree of the surrogate of the city and county óf New York, denying the application of the appellants for a revocation of the letters of administration, with the will annexed, upon the estate of Samuel Wood, deceased, theretofore issued to the respondent, Jennie E. Wood. The application is made under section 2685 of the Code of Civil Procedure, and is based upon four grounds: (1) That she has wasted the estate to which the appellants would be ultimately entitled; (2) that she is completely under the influence of an attorney for persons asserting large claims against the estate, and who was using the administratrix for his own ends and purposes; (3) that she had kept herself concealed, under the advice of such attorney, so that process could not be served upon her; and (4) her connivance at the commission of a fraud on the part of said attorney in securing an opinion on a question of law from this court upon an agreed case.

The testator, Samuel Wood, died in 1878, leaving a will and codi» oil, which were duly admitted to probate by the surrogate of the county of New York. He devised his residuary estate to his executors, in trust, to invest and provide for the payment of certain life annuities and legacies, and, second, to create and maintain a benevolent hospital. By the codicil it was provided that, instead of a hospital, the devise and bequest of the residuary estate should be applied to the founding of a musical institution, to be known as, and called “The Samuel Wood Musical College,” or “The Samuel Wood College of Music of the City of New York.” The gift in trust for charitable uses was Anally declared to be incapable of enforcement, and void, and, therefore, so much of the residuary estate as was directed to be applied to such uses, passed to Abraham Hewlett, the nephew of the testator, and his sole heir and next of kin. Two of the executors are dead, one was removed, and the letters to the fourth were revoked, as having been improperly granted. In January, 1S91, the office of executor under the will and codicil being vacant, letters of administration cum testamento a/nnexo were issued to the respondent, Jennie E. Wood.

The allegation of waste is based upon the fact that the administratrix sold a piece of land containing one and three-quarter acres to one Nesbit for $500, which it is claimed was far below the value of the property, and that in consequence of its peculiar situation with reference to other portions of the property it was largely increased in value. We deem it sufficient to say in regard to this allegation that on the proceeding before the surrogate, affidavits were produced tending to show that the sum for which the property was sold by her was its fair and reasonable value. It is true that the affidavits produced on the part of the appellants place the value of the [property at a much greater sum. But in view of this conflict of evidence, we do not think the appellants have made out such a case of improvidence against the administratrix as would justify her removal.

Neither do we consider that the appellants have made out that the administratrix is so thoroughly under the control of her attorney that she ought to be removed. The submission of the case of Wood v. Wesbii, to the General Term was undoubtedly done under the advice of the attorney, but we cannot say that that act was so improper on the part of the respondent as to lead us to deprive her of her office. The General Term in that case decided that the attorney was in fact the counsel for both parties and that the controversy was not of that character which the Oode contemplates, and, therefore, it recalled the decision which it had rendered upon the submitted case. The conduct of the attorney may have been improper, but it is not established that the respondent knew or had reason to believe that there was any impropriety in the action which the attorney had taken.

As to the point that the letters issued to the respondent were improperly issued, we think that the appellants are not entitled to question the validity of those letters, in view of the decision of the surrogate, made upon the application of Joseph S. Wood, who claimed a prior right to the administratrix to such letters.

In respect to the allegation that the administratrix has concealed herself so that process could not be served upon her, we do not And that fact sufficiently substantiated to warrant us in reversing the decision of the surrogate. The surrogate has had the matter of this will and the appointment of the respondent frequently before him and has been fully apprised of her acts. After a full hearing of the allegations of the petitioners and the respondent, and argument thereon, he has declined to grant the prayer of the petitioners, and although we have the. right to examine this matter as res nova, we think that upon the whole case the decision of the surrogate should be confirmed.

Yarious technical exceptions to the procedure of the petitioners and the regularity of their practice are discussed in the brief submitted on the' part of the respondent, which it is unnecessary, in the view we have taken of this ease, for us to consider. We are, therefore, of opinion that the decree or order of the surrogate should be affirmed, with costs.

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

Decree of surrogate affirmed, with costs.


author: Lawrence, J.: Van Brunt, P. J.:

text:
    The People ex rel. Alice Sanders, Appellant, v. Hugh J. Grant, as Mayor of the City of New York, Respondent.

      Prohibition of the employment of children in singing and dancing in a theatrical exhibition — consent from the mayor of a city — punctuation of a statute, considered in its construction.

    Section 292 of the Penal Code, as amended by chapter 309 of the Laws oí 1892, enumerates, among the employments prohibited to children under the age of sixteen years: “In singing; or dancing; or playing upon a musical instrument; or in a theatrical exhibition; or in any wandering occupation; ” and afterwards provides as follows: “But this section does not apply to the employment of any child as a singer or musician in a church, school or academy; or in teaching or learning the science or practice of music, or as a musician in any concert or in a theatrical exhibition, with the written consent of the mayor of the city,” etc.

      Held, that the latter clause does not authorize a performance by a child in singing or dancing in a theatrical exhibition, even with the consent of the mayor of the city.
    That it was the intention of the Legislature that the whole permissive part of the , section above quoted should relate to the musical question and nothing else; and that the word “musician” in the last clause qualified both concert and theatrical exhibition.
    That this appeared from the punctuation of the several paragraphs of the act.
    Appeal by Alice Sanders, the relator, from an order made at Special Term and entered in tbe office of the clerk of the city and county of New York on the 23d day of September, 1892, denying her application (made on the return of an order to show cause) for a peremptory writ of mandamus against the mayor, requiring him to give his consent, under chapter 309 of the Laws of 1892, to the appearance of Zelda Sanders, her daughter, eleven years of age, in a theatrical entertainment at Palmer’s Theater, in which said child was desired to sing and dance.

      Myer J. Stein and Wales F. Severance, for the relator.

      William, M. Ciarle and Flbridge T. Gerry, for the respondent.
   Lawrence, J.:

It is too late to question the constitutionality of section 292 of the Penal Code, and of chapter 309 of the Laws of 1892, amending the same.

The opinion of Mr. Justice Reach, at the Special Term, fully answers all the questions sought to be raised upon this appeal, and concurring as I do in the views expressed by him, I am of the opinion that the order denying the motion of the relator for a writ of peremptory mandamus should be affirmed.

O’Brien, J., concurred.

Van Brunt, P. J.:

In concurring with the opinion of Mr. Justice Lawrence herein, I think it is proper that a word or two should be said in respect to some points which have been made upon this appeal, and which do not appear to have been discussed in the opinion of the court below.

Section 292 of the Penal Code (Chapv31 of 1886) reads as follows:

“ § 292. A person who employs or causes to be employed, or who exhibits, uses, or has in custody, or trains for the purpose of the exhibition, use or employment of, any child apparently or actually under the age of sixteen years; or who having the care, custody or control of such a child as parent, relative, guardian, employer, or otherwise, sells, lets out, gives away, so trains, or in any way procures or consents to the employment, or to such training, or use, or exhibition of such child; or who neglects or- refuses to restrain such child from such training, or from engaging or acting, either
“ 1. As a rope or wire walker, dancer, gymnast, wrestler, contortionist, rider or acrobat; or upon any bicycle or similar mechanical vehicle or contrivance; or,
u 2. In begging or receiving or soliciting alms in any manner or under any pretense, or In any mendicant occupation; or in gathering or picking rags, or collecting cigar stumps, bones or refuse from markets; or,
“ 3, In peddling, singing, or playing upon a musical instrument, or in a theatrical exhibition, or in any wandering occupation; or,
“ A In any illegal, indecent or immoral exhibition or practice; or in the exhibition of any-such child when insane, idiotic, or when presenting the appearance of any deformity or unnatural physical formation or development; or,
5. In any practice or exhibition or place dangerous or injurious to the life, limb, health or morals of the child:
Is guilty of a misdemeanor. Rut this section does not apply to the employment of any child as a singer or musician in a church, school or academy, or in teaching or learning the science or practice of music, or as a musician in any concert with the written consent of the mayor of the city, or the president of the board of trustees of the village where such concert takes place.”

In 1892 this section of the Penal Code was amended so as to read as follows (Chap. 309 of 1892):

AN ACT to amend section two hundred and ninety-two of the Penal Code, relative to the licensing of children* in theatrical exhibitions.
‘1 Approved by the Governor April 15,1892. Passed, three-fiftbs being present.
The People of the State of New York, represented in Senate cmd Assembly, do enact as follows:
“ Section 1. Section two hundred and ninety-two of the Penal Code is hereby amended so as to read as follows:
“ § 292. A person who employs or causes to be employed, or who exhibits, uses, or has in custody, or trains for the purpose of the exhibition, use or employment of, any child actually or apparently under the age of sixteen years ; or who having the care, custody or control of such a child as parent, relative, guardian, employer, or otherwise, sells, lets out, gives away, so trains, or in any way procures or consents to the employment, or to such training, or use, or exhibition of such child; or who neglects or refuses to restrain such child from such training, or from engaging or acting, either
“ 1. As a rope or wire walker, gymnast, wrestler, contortionist, rider or acrobat; or upon any bicycle or similar mechanical vehicle •or contrivance; or,
“ 2. In begging or receiving or soliciting alms in any manner or under any pretense, or in any mendicant occupation; or ingathering or picking rags, or collecting cigar stumps, bones or refuse from, markets; or in peddling; or
“ 3. In singing; or dancing; or playing upon a musical instrument; or in a theatrical exhibition ; or in any wandering occupation; or,
“ 4. In any illegal, indecent or immoral exhibition or practice ; or in the exhibition of any such child when insane, idiotic, or when presenting the appearance of any deformity or unnatural physical formation or development; or
“ 5. In any .practice or exhibition or place dangerous or injurious to the life, limb, health or morals of the child, is guilty of a misdemeanor. But this section does not apply to the employment of any child as a singer or musician in a church, school or academy; or in teaching or learning the science or practice of music; or as a musician in any concert or in a theatrical exhibition, with the written consent of the mayor of the city, or the president of the board of trustees of the village where such concert or exhibition takes place. Such consent shall not be gimen unless forty-eight hours’ previous notice of the application shall have been served in writing upon the society mmtioned in section two hundred and ninety-three of the Penal Oode, if there be vne within the county, and a hearing had thereon if requested, and shall be revocable at the wild of the authority giving it. It shall specify the name of the child, its age, the names and residence of its parents or guamdians, the natume, tíme, du/ration and number of performances permitted, together with the place and cha/racter of the exhibition. Put no such consent shall be deemed to authorize any violation of the jvt'st, second, fourth or fifth subdivisions of this section.
§ 2. This act shall take effect on the first day of September, •eighteen hundred and ninety-two.”

The changes in the phraseology are few, and are shown by the-italics in the Code as cited.

It is claimed upon the part of the appellants that under the act in question the mayor has a right to license children to sing and dance-in theatrical entertainments; and our attention is called for the purpose of aiding us in the construction of the act under consideration,, to certain what are called notorious facts in connection with the emendation of the section of the Code in question. It may be a misfortune that the court is entirely unfamiliar with these notorious facts, and hence cannot seize upon them to aid it in the construction, of the act.

If it is true that this amendment was the result of a compromise-between the advocates of different views in reference to the propriety of the employment of children to sing and dance in theatrical, entertainments as claimed by the appellants, and that it was understood that under this amendment such employment as long as sanctioned by the mayor or president of the trustees of the village where-such entertainment should take place, was permissible, it would seem, that the advocates of the restricted right had been more expert in. the use of language than were the advocates of the more liberal views, because a very brief consideration of the section as amended will show that there is no room for the construction claimed by the-appellants.

As has been seen by section 292 as amended, any person who: First, employs or consents to the employment of a child under the age of sixteen years as a rope or wire walker, etc.; second, employs- or consents to the employment of such child in begging, etc.; third, employs or consents to the employment of such child in singing; or-dancing; or playing upon a musical instrument; or in a theatrical, exhibition; or in any wandering occupation; or, fov/rth, employs or consents to the employment of such child in any illegal, indecent or immoral exhibition or practice, etc.; or, fifth, employs or consents-to the employment of such child in any practice or exhibition or place dangerous or injurious to the life, etc., shall be guilty of a-misdemeanor.

The section then goes on: But this section does not apply to the employment of any child as a singer or musician in a church, school or academy ; or in teaching or learning the science or practice of: music; or as a musician in any concert or in a theatrical exhibition, with the written consent of the Mayor of the City,” etc.

Under the third subdivision above spoken of, the employment of such child in singing; or dancing; or playing upon a musical instrument; or in a theatrical exhibition; or in any wandering occupation is an offense against the statute.

Now, when the child is to be permitted to appear in certain classes of entertainments, and in a certain capacity in such entertainments, the connection of the phrases is entirely different, although the same words are used to some exent.

Eor example, in the permissive part of the fifth clause it states, “ Rut this section does not apply to the employment of any child * * * as a musician in any concert or in a theatrical exhibition,” the word “musician” qualifying both the subsequent clauses of the sentence. But when they desire to separate the different classes of doings they use the proper signs. For example, when they desire to separate singing from dancing they place a semicolon between the two phrases. And when they desire to separate playing upon a musical instrument from appearing in a theatrical exhibition they put a semicolon between them, in order to show that they are independent phrases, having no relation the one to the other. But in the fifth clause, when they come to determine the cases in which the child may be exempt from the general prohibition contained rn> the previous part of the section, they specify the name and character of the performance which it was the intention of the Legislature to exempt, viz., as a singer or musician in a church, school or academy; or in teaching or learning the science and practice of music; or as a musician. Where ? In any concert, or in a theatrical exhibition. This seems to show clearly what was the intention of the Legislature, and that the whole permissive part of subdivision 5 related to the musical question and nothing else; and, therefore, the word “musician” in the phrase under consideration qualified both concert and theatrical exhibition.

The order should be affirmed, with costs.

Order affirmed.

       [The opinion of Mr. Justice Beací referred to is given on page 244 {post). It covered five similar applications brought before him at Special Term.]


author: Lawrence, J.: Andrews, J.:

text:
    In the Matter of the Application of Charlotte Ewer, Appellant, for Writs of Habeas Corpus and Certiorari; The People of the State of New York, Respondent.

      Prohibition of the employment of female children as dancers — its constitutionality.

    The provision of section 392 of the Penal Code which makes it a misdemeanor for any person having the care, custody or control of a female child under the age of sixteen years, as parent, to procure or consent to the employment or exhibition of such child as a dancer, is not unconstitutional on the ground that it infringes upon a parent’s right to the custody and services of his infant child.
    Nor is this provision unconstitutional as being a violation of the right to liberty secured to the infant by the Constitution.
    The determination, by the Legislature, in the exercise of the police power of the State, that it is for the best interest of the State and of young girls that they should not be exhibited as dancers before they reach the age of sixteen years, is final and is not subject to review by the courts upon the ground that the law infringes upon the rights of parents in some particular cases.
    The doctrine that the Legislature cannot, under pretense of protecting the health or morals of the community, prevent the carrying on of particular kinds of business in certain places, or the manufacture of certain articles, is not applicable to the above statutory provision, which was obviously adopted by the Legislature in good faith, for the sole purpose of protecting the health and morals of children.
    Appeal by the petitioner, Charlotte Ewer, from an order made at the New York Special Term of the Supreme Court, at Chambers, and entered in the office of the clerk of the city and county of New York on the 27th day of July, 1892, overruling her demurrers to the returns to writs of habeas corpus and certiorari issued upon her petition, and dismissing the writs and remanding the petitioner to custody.
    Charlotte Ewer, the appellant, was arrested upon a warrant and taken before a police magistrate in the city of New York, June 16, 1892, charged with a misdemeanor in violating section 292 of the Penal Code by unlawfully exhibiting, using, procuring and consenting to the exhibition of her daughter, Mildred Ewer, aged seven, as* a dancer in the Broadway Theater in said city. She demanded an examination, upon which the charge was fully sustained, and she was thereupon held to await the action of the grand jury in default of $500 bail.

      Immediately writs of habeas corpus and certiorari were issued out of this court. The warden returned the body of the prisoner with the commitment, and the magistrate returned the complaint, warrant of arrest and testimony taken on the hearing. Thereupon the appellant demurred specially to the returns, alleging that the statute was unconstitutional, and that upon the conceded facts no offense had been committed.
    After hearing argument Justice Andrews dismissed the writs and remanded the prisoner, upon the grounds stated in his opinion. From the orders of dismissal the present appeal is taken.

      A. J. Dittenhoefer and Devoid Gerber, for the appellant.

      De Lcmcey Eicoll, District Attorney, and Elbridge T. Gerryy for the respondent.
   Lawrence, J.:

As the only ground assigned for assailing the proceedings before the police magistrate is that section 292 of the Penal Code is in conflict with the provisions of the Constitution, I deem it sufficient, to say, that under numerous decisions of the Court of Appeals, the position taken by the appellant cannot be sustained. The opinion of Mr. Justice Andrews, at the Special Term, fully covers the case, and it is unnecessary to add anything to the reasoning therein contained.

It, therefore, results that the orders appealed from should be affirmed.

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

Order affirmed.

The opinion delivered at Special Term was as follows:

Andrews, J.:

Section 292 of the Penal Code provides, among other things, that á person who, having the care, custody or control of a female child under the age of sixteen years, as parent, procures or consents to the-employment or exhibition of such child as a dancer, is guilty of a misdemeanor. The defendant, who is the mother of an infant girl, seven years of age, was arrested upon a charge of having violated. this statute, and, having waived an examination, was held for trial; and the question of the legality of her commitment is now brought before this court by writs of habeas corpus and certiorari. The sole ground upon which it is claimed that the defendant should be discharged is that the above-cited provisions of the Penal Code are unconstitutional. The first contention is that said provisions of the Penal Code are unconstitutional because they infringe upon a parent’s right to the custody and services of his child. It is conceded that, for reasons which concern both the State and the children themselves, the Legislature has the power to prevent parents from employing their children, or permitting them to be employed, in any indecent or immoral exhibition or practice, or in any practice or exhibition dangerous or injurious to the life, limb, health or morals of the children. Indeed, in view of the various laws, passed for the protection of children against the acts of their parents, by this State, and by every other civilized State in the world, and the validity of which has never been questioned, the learned counsel for the defendant could not well avoid making this concession. But, says the counsel, the Legislature cannot go further and take from the parent the right to employ a child in a lawful occupation, not indecent or immoral, and not dangerous or injurious to the life, limb, health or morals of the child; and, while the nightly exhibition of very young girls, as dancers, in public theaters, concert halls and dance houses, may, in many, cases, be injurious to their health or morals, nevertheless, in this particular case, the nightly exhibir tion by the defendant of her little girl, as a dancer, in a separate piece, performed in a respectable theater, could not injure the health or morals of the child; and, therefore, the above-cited provisions of the Penal Code, which forbid the mother to permit such exhibition, are unconstitutional.

It seems to me that the mere statement of this argument is a refutation of it. But to go further, in the first place, counsel assumes, without a particle of evidence, that the defendant’s child, which is of the age of seven years, will not be injured in health or morals by being continuously exhibited as a dancer; and as this assumption is wholly unwarranted, the arguments, which rest entirely upon it, necessarily fall to the ground. But, assuming that in this present ease, and in some other cases, young girls may be exhibited as dancers without injury to their health or morals, that fact does not tend to establish that the act in question is unconstitutional. The Legislature is vested with the entire police power possessed by the people of this State, and, in having determined that it is for the best interest of the State and of young girls that they should not be exhibited as dancers before they reach the age of sixteen years, its decision is final, and is not subject to review by the courts upon the ground that the law infringes upon the rights of parents in some particular cases.

It is said that the statute is a violation of the iiberty secured to the infant by the Constitution; in other words, that in the present case, a female child of the age of seven years has a constitutional right to exhibit herself as a dancer. This claim seems to me to have no foundation whatever. In this State, and in every civilized community, children are under many Hmitations. In most jurisdictions, they cannot make contracts; their earnings belong to their parents, to whom also they must render obedience; they cannot marry before a certain age; they are not allowed to purchase intoxicating liquors, nor to attend theaters except in company with adults, and the male infant is not allowed to vote until he reaches the age of twenty-one years. In view of these and many other restrictions which have been imposed upon the “ liberties ” of infants, it is certainly a most extraordinary doctrine, and one which finds no support in our Con-, stitution, that girls of the age of seven years have an inalienable right to publicly exhibit themselves as dancers, of which they cannot be deprived by an act of the Legislature.

Yarious cases are referred to by defendant’s counsel, but they lend no support to the views set forth in his brief. All that was decided in those cases was that the Legislature could not, under pretense of protecting the health or morals of the community, prevent the carrying on of particular kinds of business in certain places, or the manufacturing of certain articles. In the case at bar, no such questions can arise, for there can be no question but that the above-cited provisions of the Penal Code were adopted by the Legislature in good faith, with the sole purpose of protecting the health and morals of children.

The writs of habeas corpus and certiorari must be dismissed.


author: Lawrence, J.: Beach, J.:

text:
    In the Matter of the Application of Benjamin D. Stevens, Appellant, for Writs of Habeas Corpus and Certiorari; The People of the State of New York, Respondent.

      Prohibition of “ singing; or dancing” in theatrical exhibitions by children — not obviated by the consent of the mayor of the city.

    The words “singing or dancing,” in the third subdivision of section 292 of the Penal Code, which enumerates, as among the employments prohibited to children under sixteen years of age: “Singing; or dancing; or.playing upon a musical instrument; or in a theatrical exhibition; or in any wandering occupation;” are independent of the words “in a theatrical exhibition;” and the authority conferred upon the mayors of cities, by chapter 309 of the Laws of 1892, amending this section, to give a consent which shall permit children to perform in theatrical exhibitions, does not give to such consent the effect of including and permitting singing or dancing in a theatrical exhibition.
    Appeal by 1116 petitioner, Benjamin D. Stevens, from an order made by a justice of tbe Supreme Court, at the New York Special Term, at Chambers, and entered in the office of the clerk of the city and county of New York on the 16th day of September, 1892, overruling the petitioner’s demurrer to the returns to writs of habeas corpus and certiorari issued on his petition, and dismissing the writs and remanding the petitioner to custody.
    Benjamin D. Stevens, the appellant, who is managei of a theatrical troupe, publicly exhibited in the Broadway Theater, in the city of New York, on September 5, 1892, a little girl named Lillian Kline, aged five years, in singing and dancing, in a play called “ Wang,” performed therein. He was arrested September Y, 1892, upon a warrant issued by a police justice of said city, at the instance of the New York Society for the Prevention of Cruelty to Children, charged with a misdemeanor in violating section 292 of the Penal Code which prohibits the exhibition of a child under the age of sixteen years in singing or dancing: Hpon the examination which thereupon took place, the facts alleged were proven, but he claimed to have a consent in writing from the mayor of the city of New York legalizing the exhibition. He was duly committed by® the magistrate to await the action of the grand jury.
    Immediately writs of habeas corpus and certiorari were issued by this court. The warden returned the body of the appellant in custody with the commitment. The magistrate returned the complaint, warrant of arrest, and testimony taken on the examination. Special demurrers were then interposed to each return, and a hearing had before Mr. Justice Beach, who dismissed the writs and remanded the prisoner upon the grounds stated in his opinion. From the orders of dismissal the present appeal is taken.

      Luden OudÁn, for the appellant.

      De Lcmcey IficoTl, District Attorney, and ETbridge T. Gerry, for the respondent.
   Lawrence, J.:

We think that the construction given to chapter 309 of the Laws of 1892, amending section 292 of the Penal Code, by the learned justice, before whom the writs of habeas corpus and certiorari were brought at the Special Term, was correct, and adopting his opinion as our own, an affirmance of the orders appealed from is directed and the prisoner remanded.

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

The opinion of the justice before whom the writs were brought at Special Term was as follows:

Beach, J.:

Prior to the act of 1892, and under section 292 of the Penal Code, the written consent of the mayor could be given to the employment of a child in certain ways mentioned. By the act of 1892, entitled: “ An act to amend section two hundred and ninety-two of the Penal Code relative to the licensing of children in theatrical exhibitions,” the consent of the mayor was extended to include such exhibitions.

The third subdivision of section 292 specifies certain of the prohibited acts in these words :

Third. In singing; or dancing; or playing upon a musical instrument; or in a theatrical exhibition; or in any wandering occupation.”

The question raised in these proceedings, is whether or not the mayor can grant a consent for a “theatrical exhibition” which includes “ singing ” or “ dancing ” by the child.

I am of opinion that he cannot. The intent of the Legislature is to be ascertained, and wlien settled followed by the court in construing tbe enactment. But this intent is not to be gathered from the shifting uncertainties of outside opinion or circumstances likely to be modified or wholly changed when subject to proof and judicial examination, but rather from the signs and indications furnished by legislation upon the particular subject then under legislative consideration.

Judicial construction is seldom assisted by that applied to other enactments, which is always influenced or controlled by particular verbiage. Such are the cases of the Society for Reformation of Juvenile Delinquents v. Diers (10 Abb. Pr. [N. S.] 216); Bell Treas. Philadelphia v. Mann, (121 Penn. St. 225).

There is no doubt but that the court can disregard the exact and literal wording of a legislative act, if, upon a survey of the whole act, and the purpose to be accomplished or the wrong to be remedied, it is plain that such exact or literal rendering of the wording would not carry out the- intent of the Legislature. (Bell v. The Mayor, 105 N. Y. 139, 144.)

This principle is not directly applicable to the question at bar, because exact and literal wording is not opposed to plain intent.

The point involved here relates to the inclusive power of the term “ theatrical exhibition ” relative to “ singing ” or “ dancing.” These terms are used in the act under review, and the court, to ascertain the legislative intent, is remitted to the use by the Legislature of those terms and the legal effect of that use.

The original act, and as amended, contains specified prohibited acts.

These under the present section, and included in paragraph 3, are plainly five in number: First, singing; second, dancing; thvrd, playing upon a musical instrument; fourth, in a theatrical exhibition ; fifth, in any wandering occupation. The answer to parts of the argument urged by learned counsel for the defendant and relators is the obvious deduction from the particular specifications that each has a distinct and separate significance, and, therefore, no one is inclusive of any other. .

The final clause of the amendment, “ But no such consent shall be deemed to authorize any violation of the first, second, fourth or fifth subdivisions of this section,” is of little aid to judicial construction.

The third subdivision is not named, but the reason for its omission is that a violation of its parts was authorized when consent of the mayor was obtained. This applies only to the term “ theatrical exhibition,” leaving singing, dancing, playing upon a musical instrument, and wandering occupation, in the same status as the other subdivisions.

The substitution of the word “ dancing ” for “ dancer ” seems to indicate an intention to enlarge the scope of prohibition beyond a signification applicable only to a professional.

It is also apparent that the third subdivision was properly omitted, because it includes what is subject to a consent by the mayor, to wit, playing on a musical instrument at a concert and theatrical exhibitions.

The court is of opinion that the tenor of the act, its title and specific designations, by explicit words, will not permit the inclusion of singing and dancing by the words “ theatrical exhibitions.”

There are, under the latter term, many acts not harmful or inappropriate within the limit of children’s effort, and such may be permitted. Those of singing and dancing are excluded, in the wisdom of supreme legislative authority, which cannot and should not be overruled by the courts, especially when exercised with the humanitarian object of protecting those who, from youth and consequent inexperience, are unable to guard and protect themselves.

The motions for a mandamus are denied, the writ of habeas corpus and certiorari discharged, and the prisoner remanded.


author: Follett, J. :

text:
    George F. Vietor and Others, Appellants, v. Moritz Bauer and Cacilie Bauer, Respondents.

      Beceipt from a debtor of the note of a third pan'ty, diverted by the debtor from its intended purpose — a credit upon account does not render the creditor a holder for value.

    The mere crediting, by a creditor, the account of a debtor upon a pre-existing indebtedness, with the amount of a note, received from the debtor before maturity, made by a third party to his own order and indorsed by the maker and another third party, which had been delivered by the maker to the debtor for the special purpose of the debtor’s procuring it to be discounted for the maker, and was thus diverted from that purpose by the debtor, does not render the creditor a holder for value so as to entitle him to recover upon the note against its maker and indorser.
    Nor is the legal status of the creditor in reference to a note so received by him changed by the fact that, after its maturity and after he had commenced an action thereon against the maker and indorser, he agreed with the debtor to receive the note in part satisfaction and discharge of his account and gave the debtor a release.
    Appeal by tbe plaintiffs, George F. Yietor and others, from a judgment of tbe Supreme Court dismissing tbe" complaint, entered in tbe office of tbe clerk of tbe city and county of New York on tbe 8d day of February, 1893, upon tbe report of a referee.

      Jamies Dtorme, for tbe appellants.

      Bemjamnvn U. Camdozo, for tbe respondents.
   Follett, J. :

This action was brought to recover on a promissory note made by Moritz Bauer September 18, -1885, whereby be promised to pay to bis own order $2,500, four months after date at tbe Murray Hill Bank. It fell due January 21, 1886.

It is alleged and admitted that afterwards the maker and Cacilie Bauer, tbe other defendant, indorsed tbe note, but it is denied that it was made or indorsed for value, and it is also denied that it was delivered. As an affirmative defense it is alleged that tbe note was made, indorsed and delivered to Leopold Levy, for tbe purpose of having the same discounted and tbe proceeds given to tbe defendants.

Tbe referee found that tbe note was made and “ indorsed to tbe said Leopold Levy for tbe specified purpose of having tbe same discounted and the proceeds thereof forthwith turned over to tbe defendants, or that otherwise tbe said note should be returned to them.”

This finding is supported by tbe evidence. A witness who was present when tbe note was made and delivered to Levy, testified: “ I recognize tbe bandwriting of tbe note ; what I recollect to have occurred in the interview between Moritz Bauer and Leopold Levy, having reference to this note, is that Mr. Bauer banded that note to Mr. Levy, requesting Mr. Levy to have that note discounted for him in tbe Bowery National Bank, Levy saying that he would get Mr. Hamilton to give him the money for it; Mr. Hamilton is the cashier of the Bowery National Bank; Bauer told Levy he needed the money very particularly, and asked if Levy would try and get it for him to-morrow, and Mr. Levy said he would try and have it done for him the next day, and that if he did not he would return the note the next evening to Mr. Bauer.”

There was no dispute on the trial about the fact that the note was not discounted by any bank. October 15, 1885, Levy was indebted to the plaintiffs in the sum of $3,940.26 on account, which was carried on their books under the head of suspended debtors.” In the autumn of that year Levy went to Europe, carrying with him the note, and an agent of the plaintiffs followed him for the purpose of collecting their account. What occurred there does not appear. On the 18th of January, 1886, the plaintiffs, at the city of New York, received by mail this noto from Levy, who was then in Germany. The plaintiffs, after making inquiry as to the responsibility of the maker and indorser, credited Levy’s account with the note. Three days afterwards, January 21, 1886, the note fell due and was protested. February 4, 1886, this action was begun, and an answer was interposed denying the validity of the note. In November, 1886, an agent of the plaintiffs met Levy in Montreal, Canada, received from him $500 in cash and executed and delivered to him a release in full of the claims of the plaintiff. These facts were found by the referee and the findings are supported by the evidence.

Under this state of the evidence it was well found by the referee that there was no consideration for the note, but that it was made and delivered to Levy for the purpose of having the same discounted and the avails delivered to the maker, and also that the plaintiffs did not receive the note before it fell due in part satisfaction or discharge of then* account against Levy.

The agreement to receive it in part satisfaction and discharge of the account, in November, 1886, was long after this suit was begun.

This case has now been three times tried. On the first trial a verdict was directed for the plaintiffs. At that time it was not alleged in the answer that the note was made and delivered to Levy for a particular purpose and had been by him diverted. On the trial the defendants offered to prove this fact. The evidence was objected to as immaterial and incompetent, but not on the ground that such a defense was not pleaded. The court, in considering the question as to whether the plaintiffs were holders for value, said:

“That the defendants were not precluded from making this defense to the note by the credit of it as a payment on the account they had against Levy, is quite well established by the authorities. By that credit they neither parted with any value, nor surrendered anything whatever on the faith of it. If they had, they would stand in a very different legal position requiring the exclusion of this defense. But if they shall be deprived of this credit by the proof of tliis defense, then- account will stand as it did before, as a legal demand against their debtor Levy. Their right to enforce and collect it will be in no manner affected by the fact of this credit, and its effacement through proof of the fact that Levy had no authority to use the note for that object. And where that is the condition of the holders of commercial paper fraudulently diverted from the purpose for which it had been made and indorsed, there the maker and indorser may relieve themselves from liability upon it by proof of such facts as were proposed to be shown in this instance.” (11 N. Y. St. Repr. 531.)

On the second trial the question whether the maker received a consideration for the note from Levy was submitted to the jury, and found for the plaintiff. The General Term in reviewing the case (32 N. Y. St. Repr. 198), again held, that under the undisputed evidence given by and in behalf of the plaintiffs, they surrendered nothing when they received the note in January, 1886. That they were not holders for value, and that their subsequent discharge of Levy from all liability on the account did not affect the legal status of the plaintiffs at the time they received the note.

The learned referee in deciding this case followed the rule laid down by this court in this case, and it may be added that the rule as stated is supported by a long line of adjudications in this State.

The judgment should be affirmed, with costs.

Yan Brunt, P. J., and Barrett, J., concurred.

Judgment affirmed, with costs.


author: Follett, J.:

text:
    The Mayor, Aldermen and Commonalty of the City of New York, Respondent, v. John Brady and William Hollweg, Appellants.

      Indemnity to a city, given by a contractor, against Ms negligence — how fan' the judgment against the city in an action for negligence is evidence against the contractor’s sureties in an action by it for indemnity.

    A contract with a city for building a sewer in one of its streets, provided that the contractor should guard the work and should indemnify the city against all suits and damages to which it might be subjected by reason of injury to anyone, resulting from negligence in the performance of the work or in the guarding of it.
    A person injured by an obstruction on the sidewalk, caused by the work, recovered a judgment for damages because thereof against the city, which was paid by the city, and the city thereafter brought an action against the sureties who had engaged for the due performance of his contract, by the contractor, to recover the amount which it had been compelled to pay by reason of the judgment.

      Held, that it was essential to a recovery, in the absence of any provision in the contract to the contrary, to show that the judgment recovered against the city was for damages caused by some negligent act or omission of the contractor, for which, as between him and the city, the contractor was primarily liable.
    When indemnity is sought by one who has been adjudged liable for damages arising from negligence for which the other is primarily liable, the judgment is evidence, in the action brought to recoyer indemnity, that the defendant in the first action (plaintiff in the second) was liable for the damages.
    When notice has been given to defend, the judgment is evidence of the amount of the damages arising from the injury, but it does not establish which of the . wrongdoers is primarily liable.
    In an action brought by the corporation of the city of New York against the sureties of a contractor, who had engaged to build a sewer in one of the streets of that city, to recover indemnity for what the city had been compelled to pay under a judgment recovered against it in an action brought against it and the contractor for the recovery of damages for a personal injury, which had been tried as against the city, but had not been noticed for trial as against the contractor, the judgment roll was put in evidence, which contained only the summons, complaint, answer and a judgment in the ordinary form of judgments upon a verdict in common-law actions for damages, which disclosed neither the nature of the action nor the particular cause for which judgment was rendered ; the purport of the allegations of the complaint was that the injury was caused by the concurring acts of the contractor and of the city.

      Held, that the judgment roll showed that the issue whether the city or the contractor was primarily liable, as between themselves, was not presented or tried; and hence, that the judgment roll did not establish a cause of action in favor of the city against the contractor’s sureties.

      It was shown by the defendants (the contractor’s sureties) that the city had made payments to the contractor after the plaintiff in the action in which judgment .had been recovered against the city was injured and had presented his claim against the city.

      Held, that this fact was no defense to the action, since, in the contract between the city and the contractor, which was made a part of the bond executed by the defendants as security for the performance of the contract, the contractor agreed that the whole, or so much of the moneys due him thereunder as might be considered necessary by the city’s commissioner of public works, might be retained by the city, at its sole option, until all suits or claims for damages to third persons should have been settled, and evidence to that effect furnished to the satisfaction of the commissioner.
    Appeal by tbe defendants, John Brady and William Hollweg, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of tbe clerk of tbe city and county of New York on tbe 31st "day of January, 1893, upon a verdict rendered by direction of tbe court at tbe New York Circuit.
    August 31, 1883, Joseph D. Nutt and Patrick Kearns, wbo were partners under the firm name of Nutt & Kearns, entered into a contract in writing with tbe mayor, aldermen and commonalty of the city of New York whereby they agreed, in consideration of certain payments therein provided for, to construct a sewer in Ninth avenue between Eighty-first and Eighty-third streets in the city of New York and to complete tbe same in a good and substantial manner.
    Tbe contract contained tbe following provision : “ That during tbe performance of tbe said work be (they) will place proper guards upon and around tbe same for tbe prevention of accidents, and at night will put up and keep suitable and sufficient lights, and that be (they) will indemnify and save harmless the parties of tbe first part from all suits and actions of every name and description brought against them, and all costs and damages to which they may be put by reason of injury to tbe person or property of another, resulting from negligence or carelessness in tbe performance of tbe work, or in guarding tbe same, or from improper materials used in its construction, or by or on account of any act or omission by tbe said party of tbe second part or bis (their) agents.”
    Simultaneously with the execution of said contract a joint and several bond was entered into by said Nutt & Kearns, John Brady and William Hollweg, whereby they bound themselves in tbe sum of $5,000, tbe condition of tbe obbgation being that Nutt & Kearns
      “ shall well and truly and in good, sufficient and workmanlike manner perform the work mentioned in the aforesaid contract, and complete the same in accordance with the terms and provisions therein stipulated, and in each and every respect comply with the condition therein contained, then this obligation to be void; otherwise to remain in full force and virtue.”
    On the 13th of November, 1883, Augustus W. Cruikshank was injured by falling over an unguarded pipe left across the west sidewalk on Ninth avenue. December Y, 1883, he filed his claim with the city for the damages sustained, which was not allowed. In May, 1881, he began an action in the Supreme Court against the mayor, aldermen and commonalty of the city of New York, said Joseph D. Nutt and Patrick Kearns. He alleged in his complaint, among other things, as follows:
    “ IY. That during the progress of the construction of said sewer or sewers in the said portion of Ninth avenue, and in the month of November, 1883, the defendants, Joseph D. Nutt and Patrick Kearns, and their servants, having unlawfully, carelessly and negligently placed and extended a certain pipe over and across the sidewalk between Eighty-first and Eighty-second streets on the westerly side of Ninth avenue, which said avenue is a public highway, did negligently and carelessly suffer said pipe to remain extended and across said sidewalk uncovered and exposed without guarding the same, and without placing any light or signal near thereto to indicate danger, thereby creating and continuing a public nuisance and rendering said sidewalk insecure and dangerous to citizens and travelers.
    “ Y. That the defendant, the mayor, aldermen and commonalty of the city of New York and its servants, well knowing the premises, negligently left the said sidewalk in the dangerous condition aforesaid.
    “ YI. That on the 13th day of November, 1883, the plaintiff, while lawfully and carefully passing along said westerly side of Ninth avenue, between Eighty-first and Eighty-second streets, on the sidewalk, entirely unaware and unsuspicious of danger, without fault or negligence on his part, but wholly by reason of the wrongful act, neglect and default of the defendants, stumbled against said, pipe and fell over the same.”

      The defendants filed separate answers denying any liability. On the 6th of June, 1885, notice was given by the corporation counsel to Nutt & Kearns and to William Iíollweg and John Brady of the pendency of the action, the purpose for which it was brought, that damages were claimed, and they were asked to defend the action at their own expense. The defendants Iíollweg and Brady paid no attention to the notice and refused to appear and defend the action. On the 6th of October, 1885, the action was brought to trial and resulted in a verdict in favor of the plaintiff for $4,500 damages, and on the same day a judgment was entered for $4,884.94 damages and costs, which the city paid to the plaintiff on the 23d of December, 1885, together with interest, amounting in all to $4,937.05. Afterwards this action was begun by the city to recover from these defendants the amount which it had been compelled to pay.
    On the trial the plaintiffs introduced in evidence the contract, the bond and the judgment roll, proved the payment of the judgment and the amount expended in contesting the former action and rested. Thereupon the defendants moved for a dismissal of the complaint on the ground that the plaintiffs had not shown that the damages recovered by the judgment were caused by the negligence of the contractors for whom the defendants were sureties. This motion was denied and an exception was taken. The defendants then proved that the city paid on the contract the following sums at the following dates :
    December 1, 1883..........,........................$1,120 00
    January 30, 1884................................... 1,120 00
    March 31, 1884.................................... 1,059 80
    May 12,1884...................................... 1,050 00
    June 10, 1884..................................... 1,120 00
    August 28, 1884................................... 2,213 92
    May 2,1885....................................... 234 90
    Total.........................................$7,918 62
    The defendants also showed that August 28,1884, the contractors acknowledged full payment of all their claims arising out • of the contract and executed a general release of all demands against the city. The defendants then proved that the action brought by Cruikshank was not noticed for trial as against the contractors, and that in 1888 on their motion that action was dismissed for the want of prosecution. The defendants introduced sections 12, 14 and 17, of page 7 of the Revised Ordinances of the city, and offered to prove that soon after the contract was closed the contractors became and remained insolvent, which evidence was excluded and an exception was taken. This was all the evidence received oi’ offered on the trial. At the close of the evidence the defendants again moved to dismiss the complaint which motion was denied and an exception taken and thereupon the court directed a verdict in favor of the plaintiffs for $7,140.73, the amount of the former judgment with interest and $116.14, the expenses incurred in defending the former action. A judgment was entered from which the defendants appealed.

      James A. Jeering, for the appellants.

      Charles Blandy, for the respondent.
   Follett, J.:

There was no question of fact for the jury. The main contention on this appeal is, did the evidence establish a cause of action in favor of the plaintiffs ? The learned counsel for the defendants insisted that their liability was not established because it was not affirmatively shown that the judgment recovered by Cruikshank was for damages caused by some negligent act or omission of the contractors for which, as between them and the city, they were primarily liable. That it was necessary to show this fact unless some provision in the contract rendered it unnecessary is established by several cases in the court of last resort. (City of Rochester v. Montgomery, 72 N. Y. 65; The Mayor v. Troy and Lansingburgh R. R. Co., 3 Lans. 270; 49 N. Y. 657; City of Cohoes v. Morrison, 42 Hun, 216; 116 N. Y. 662; Oceanic Steam Navigation Company v. Compania Transatlantica Espanola, 134 id. 461.)

Does the fact affirmatively appear from the judgment roll that the damages were caused solely by the contractors’ negligence, or if jointly with the city, that as between them the contractors are primarily liable ? The judgment proper is in the ordinary form of judgments in common-law actions for the recovery of damages and discloses neither the nature of the action nor the particular cause for which the judgment was rendered. The postea simply recites that a verdict was rendered for $4,500. The only other papers contained in the roll are the summons, complaint and answer. In the third subdivision of the complaint it is set out that Nutt & Kearns entered into a contract with the city by which they undertook to build for it a sewer in Ninth avenue between Eighty-first and Eighty-third streets.

In the fourth subdivision which is quoted in the statement of facts it is set forth that Nutt & Kearns negligently left a pipe across the sidewalk- over which the plaintiff fell and was injured.

In the fifth subdivision it is alleged that the “ city of New York and its servants, well knowing the premises, negligently left the said sidewalk in the dangerous condition aforesaid.”

In the sixth subdivision it is averred that the plaintiff, without fault or negligence on his part, but wholly by reason of the wrongful act, neglect and default of the defendants, stumbled against said pipe and fell over the same.

The result of these allegations is that the injury was caused by the concurring acts of the contractors and of the city, but the issue whether the city, or the contractors, were primarily liable as between themselves was not presented nor tried, as, indeed,- it could not have been without the consent of both parties and the court for reasons stated in O. S. N. Co. v. C. T. E. (supra). This issue might have been raised as between the defendants in the original action by the .service of an answer by one defendant on a co-defendant as provided by section 521 of the Code of Civil Procedure.

"Whether the plaintiffs or the contractors are primarily liable for the negligence, is an issue on which neither the contractors nor their sureties have had their day in court. That it is possible that the city may be primarily liable is shown by the terms of the contract introduced in evidence by the plaintiffs, for by it the' city had .the right to supervise and direct the manner of doing the work, and among other things, it was provided that “ All iron, water and gas pipes which it becomes necessary to remove, shall be considered as the property of the parties of the first part (city) and left in such part or parts of the streets as the engineer may direct, unless notice to the contrary is given in writing by the Commissioner of Public Works to the said contractor, in which case -the same shall be removed or otherwise disposed of at the expense of said contractor.”

When indemnity is sought by one who has been adjudged liable for damages arising from negligence for which another as between themselves is primarily liable, the eases hold that the judgment is evidence in the action brought for indemnity, (1) that the defendant in the first action, plaintiff in the second, was liable for the damages, (2) when notice has been given to defend, of the amount of the damages arising from the injury, but it does not establish which of the wrongdoers is primarily liable. The reason of this is plain. The liability of the defendant in the first action and the amount of damages sustained were issues presented and determined; but which of the wrongdoers was primarily liable is an issue not usually presented or determined in the action. (O. S. N. Co. v. C. T. E., supra.)

Is there any provision in the contract which takes this case out of the general rule ? It provides that they will indemnify and save harmless the parties of the first part (city) from all suits and actions of every name and description brought against them (city).” The language quoted is part of subdivision H, which contains particular words limiting and controlling the general words, and makes it plain that the contractors and their sureties are not by the terms of the contract hable simply because a judgment has been recovered against the contractors. (Sedg. Cons. S. & C. Law, 360.)

Again, this action neither was brought nor tried on the theory that a judgment having been recovered against, and paid by the city for acts arising out of the construction of a sewer, rendered the contractors and their sureties hable under the language quoted from provision H, and it is not necessary to consider further this question.

The fact that the city made payments to the contractors after Cruikshank was injured and presented his claim, is no defense to this action, for the contract provides: “ The said party of the second part (contractors) hereby further agrees that the whole or so much of the moneys due to him (them) under and by virtue of this agreement, as shall or may be considered necessary by the Commissioner of Pubhc Works, shall or may be retained by the said parties of the first part (city) at their sole and exclusive option, until all such suits or claims for damages aforesaid shall have been settled, and evidence to that effect furnished to the satisfaction of the said Commissioner.”

The contract is referred to in, and is made a -part of, the bond, executed by these defendants.

The judgment must be reversed and a new trial granted, with costs to the appellants to abide the event.

Van Brunt, P. J., and Barrett, J., concurred.

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


text:
    H. Van Rensselaer Kennedy, Appellant, v. Mifflin Kennedy, Frederic P. Olcott and Others, Respondents.

      Railway reorganization — change in plan — withdrawal of bonds deposited — injunction against the reorganization committee.

    A railway reorganization agreement provided that the reorganization committee might make changes in the plan of reorganization, and that, on a change being made, any person who had deposited securities under the original agreement might withdraw them on paying his share of the expenses theretofore incurred in carrying out the agreement.
    A change having been made by the committee in the plan of reorganization, a bondholder who had deposited his bonds, with a transfer of the legal title, under the original agreement, refused to accept the change and demanded a return of his bonds, which was refused unless he paid his pro rata share of the expenses incurred up to that date; and there being a question between the parties as to how much he should pay, he brought an action against the committee to recover his bonds on payment of his pro rata share of expenses incurred, and asked that the defendants be restrained from dealing with the bonds deposited by him.

      Held, that the plaintiff was entitled to an in j unction pendente lite.

    Appeal by the plaintiff, H. Yan Bensselaer Kennedy, from an order made at the New York Special Term of the Supreme Court at Chambers, and entered in the office of the clerk of the city and county of New York on the 16th day of March, 1892, denying a motion to continue a preliminary injunction,
    “Either upon the giving and filing, within ten days after entry and service of this order, of an undertaking by or on behalf of the said defendants, in the amount of ten thousand dollars, to be approved as to form and sufficiency of sureties by a justice of this court, conditioned for the payment by the defendants herein, Frederic P. Olcott, Joseph Wharton, Henry Budge, Frederic Cromwell, J. Kennedy Tod, Alfred S. Heidelbach, Eric P. Swenson and the Central Trust Company of New York, to this plaintiff, of any damage sustained or that may be sustained by him, said plaintiff, through or by reason of the misappropriation by the said defendants or by any of them, of plaintiff’s equity in the bonds deposited by him, or of any part thereof, if any such misappropriation shall ultimately be adjudged in this action; or, upon the giving and filing by the plaintiff herein, within ten days after entry and service of this order, of an undertaking in the sum of sixty thou-, sand dollars, to be approved as to form and sufficiency of sureties by a justice of this court, conditioned for the payment by the plaintiff of such sum as may be decreed by the court, upon the trial of this action, as the amount properly chargeable and assessable to the plaintiff and due from him to the defendants, or to any of them, upon the return to him of said bonds, upon or in respect to the bonds deposited by plaintiff under the plan of reorganization of the San Antonio and Aransas Pass Bailway Company, bearing date March 2d, 1891, according to the terms and conditions of the said plan.” In case the last-mentioned undertaking was given, the bonds were to be returned to the plaintiff.

      George ZdbrisJ&ie and Qlmrles J. Hardy, for the appellant.

      WilUam Allen, Butler, for the respondents.
   Follett, J.:

The San Antonio and Aransas Pass Bailway Company is a corporation of the State of Texas. On July 1, 1886, the corporation mortgaged its property to a trustee to secure the payment of ten thousand bonds of the denomination of $1,000 each, with interest at six per cent per annum, payable on the first days of January and July in every year until July 1,1926, when the principal becomes due.

The plaintiff is the owner of 120 of these bonds. In July, 1890, the corporation made default in the payment of part of the interest on these bonds, and has paid none of the interest which has become due since July 1, 1890. In the month last mentioned, a receiver was appointed for the corporation on a judgment which is asserted to be a lien prior to the mortgage. On the 2d day of March, 1891, a contract was entered into between Mifflin Kennedy, party of tbe first part, and such of the share and bondholders of the corporation as should join therein and comply with its terms, as party of the second part, and Frederic P. Olcott, Joseph Wharton, Henry Budge, Frederic Cromwell, J. Kennedy Tod, Alfred S. Heidelbach and Eric P. Swenson, a committee of the share and bondholders of the corporation, parties of the third part. The purpose of the contract was to effect a reorganization of the corporation and to issue new securities to the various classes of its creditors according to a scheme set forth in the contract which is called a reorganization agreement, and the parties of the third part, a reorganization committee. The contract provides that the bond and shareholders, who elect to become parties to the contract, shall transfer the legal title to their shares and bonds and deliver the securities to the Central Trust Company of New York. Among other provisions, the reorganization agreement contains the following:

“Fourteenth. That the committee are vested with full power and authority to do any and all acts and things necessary and proper in their judgment to be done in order to carry out this plan of reorganization, including the power from time to time to make such changes in the same as they may consider necessary or expedient; provided, that no alteration or modification shall • be made by the committee involving the acceptance by them, after reorganization for distribution as hereinbefore provided, of any less amount or inferior quality of bonds or stock than are described herein.
“ Publication daily for twenty days in such newspaper or newspapers published in the city of New York, as the committee may designate, of any alteration or modification, shall be notice thereof to all parties to this agreement, and within two weeks after the last day of such advertisement any party to this agreement may withdraw his securities on surrender of his certificate of deposit and payment of his share of expense theretofore incurred in carrying out this agreement, and parties not so withdrawing shall be deemed to have assented to such alteration or modification.
“ In the event of this agreement not becoming binding, or not being consummated through the purchase of the property by the committee of reorganization^ or through the rehabilitation of the now existing company, then the committee shall return to the several depositors tlieir respective bonds, coupons, or stocks so deposited upon the payment of all advances paid and expenses incurred by the committee including their remuneration, and upon the surrender of the certificates issued on the deposit of the same.”

The plaintiff transferred his bonds and the unpaid coupons annexed to the Central Trust Company, receiving therefor certificates stating that the bonds were deposited under the agreement of March 2, 1891, and “ that the holder hereof assents to said agreement by receiving this certificate.” By the reorganization agreement the committee was authorized to compílete the Waco line and the Buffalo Bayou extension, and to do various other acts involving the expenditure of large sums of money, for which the bonds and shares transferred to the trust company were to be held as security. The committee completed the “Waco line” and expended large sums of money, the amount of which and for what purposes need not here be stated.

On the 14th of December, 1892, the reorganization committee modified the scheme contained in the contract of March 2, 1891, so that the bondholders of plaintiff’s class should receive for each bond a new one for $1,000, bearing four pier cent interest, imtead of like bonds bearing five per cent interest as provided by the original reorganization contract. The plaintiff refused to accept of the terms of the modified agreement and demanded a return of his bonds, which the committee declined to deliver, unless the pilaintiff paid his pro rata share of the expenses incurred under the reorganization agreement upi to that date, which are asserted to be about fifty per cent of the fane value of the bonds. The pilaintiff brought this action to recover his bonds on payment by him of his pro rata share of expenses incurred, and asks that the defendants be restrained from dealing with the bonds so deposited by him.

The only disputed question of fact between the parties seems to be over the question how much the plaintiff should pay in order to secure a return of his bonds. That he is not bound to assent to the terms of the modified agreement, is clear, it being so expiressly provided, and it seems to us equally clear that after the plaintiff gave his notice that he wished to withdraw his bonds, the reorganization committee could not thereafter, in execution of the modified pilan, create any further lien or charge upon them. Their right is limited to holding them as security for such expenses and advances as had been then made under the original reorganization agreement, and. they clearly have no right to sell, transfer or dispose of these bonds in any way, for the purposes of carrying into effect the modified agreement to which the plaintiff has not assented.

The plaintiff does not seek an injunction restraining the action of the committte under either agreement, nor in respect to any securities other than his own, and we are unable to see why he is not entitled to this relief.

The order should be reversed, with ten dollars costs and printing disbursemen ts, and the motion for an injunction granted, with ten dollars costs, upon the plaintiff’s giving an undertaking to the effect that he will pay to the parties enjoined such damages, not exceeding $10,000, as may be sustained, as provided by section 620 of the Code of Civil Procedure.

Yan Brunt, P. J., concurred in result.

Order reversed, with ten dollars costs and printing disbursements, and the motion for an injunction granted, with ten dollars costs, upon plaintiff’s complying with directions stated in opinion.