text:
    LOUIS STERNBERGER, et al., Respondents v. MEYER A. BERNHEIMER, Impleaded with JOSEPH FALK and GEORGE W. FALK, Appellant.

      Judgment, error in entering on general verdict, how corrected,—Joint contract, evidence to establish, pool, evidence of entering into with acts and declarations sufficient—Pool, definition, resort to cases may be had for.

    An error in entering judgment against one of two contractors (the other not having been served) upon a general verdict against the one who litigated can be remedied by motion only.
    Joint contract may be shown by testimony of witnesses that the defendants entered into a pool to purchase, and by their act and declaration showing that the purchase was a joint venture, and that they used the word “Pool” as designating a joint venture in which they were to be engaged.
    Pool, definition of, a resort to reported cases might properly be made for its definition.
    Before Sedgwick, Ch.. J., and Ingraham, J.

      Decided January 7, 1889.
    Appeal by defendant from judgment entered upon verdict of jury.
    This action was brought to recover commissions alleged to have been earned by Louis Sternberger, a stock broker, for services alleged to have been rendered by him as broker'in the purchase by him for the defendants jointly and at their request certain shares of stock, and for a balance due on the purchase money of such stock advanced by him for the purchase thereof at the request of the defendants. The complaint, among other things, alleged that the defendants were copartners in a joint venture and business dealing in said stock.
    The summons was not served on defendant Joseph Falk and he did not appear or answer. The other two appeared and answered.
    On the trial the jury found a general verdict for plaintiff against the defendant Meyer A. Bernheimer and assessed the plaintiff’s damages, and also found a general verdict , in favor of defendant, George Falk. On this verdict a judgment was entered in favor of the plaintiff against the defendant Meyer A. Bernheimer for the damages assessed by the jury and costs as taxed, and in favor of defendant George Falk against the plaintiff, adjudging that the complaint be dismissed on the merits as against defendant George Falk, and that defendant George Falk recover of plaintiff his costs as taxed.
    Other facts appear in the opinion.

      Bettens & Lilienthal, attorneys, and Jesse W. Lilienthal of counsel for appellant, argued:—
    I. The judgment on the verdict has been erroneously entered and should be reversed, and a new trial should be granted. Three defendants, Bernheimer, Joseph Falk and George Falk, are sued upon a joint liability and only two, Bernheimer and George Falk, are served and appear. The jury rendered a verdict against defendant Bernheimer and in favor of . defendant George Falk. The plaintiff’s proof is to the effect that Joseph Falk, the defendant not served, employed the plaintiffs as brokers to purchase stock for a “ pool,” composed of himself, Brunner, Cahn, Bernheimer and George Falk. The appellant, Bernheimer, was entitled to have the judgment entered against defendant, Joseph Falk, the alleged co-contractor, as well as against himself, so that joint property might be applied to satisfy the execution. Niles v. Battershall, 2 Robt. 146, S. C., 18 Abb. Pr. 161; Nelson v. Bostwick, 5 Hill, 37; Produce Bk. v. Morton, 67 N. Y. 199; National Bk. v. Spencer, 19 Hun, 569.
    II. Assuming that the respondents were not bound to enter up judgment against the co-contractor of the appellant, sued but not served, they at all events had this right, and therefore the effect of the omission so to do, was to release said co-contractor. And the effect of releasing him would be to deprive the appellant of his right to enforce contribution, and therefore the judgment entered against appellant alone was erroneous in depriving him of this substantial right, and should be reversed. Waggoner v. Walrath, 24 Hun, 443 ; Tobias v. Rogers, 13 N. Y. 59.
    III. The motion for the nonsuit should have been granted. It was made at the close of the plaintiffs’ case, and again before the summing up, on the ground that the complaint states a joint employment in a joint venture undertaken by the three defendants, while there was no evidence to establish a joint venture. The case was allowed to go to the jury, although there was no evidence of a joint adventure, unless the evidence of a “ pool,” without any explanation of its meaning, or how it was understood by any of the parties, be such evidence. It will be conceded that the burden is on the plaintiffs to prove the material allegations of the complaint denied by the answers. Now, then, will the court take judicial notice that a “pool” is a joint venture ? The utmost diligence of counsel has failed to find a single expression of opinion in the books to warrant such an assumption. The only references to the word “ pool ” that have been found are contained in: Kilbourne v. Thompson, 103 U. S. 168; Harris v. White, 81 N. Y. 532.
    Counsel here entered into an extended analysis of the evidence to show that apart from the expression “pool” there was no evidence of a joint adventure.

      D. Solis Hitterband, attorney, and James M. Smith of counsel for respondents.
   By the Court.—Sedgwick, Ch. J.

The action was upon a joint liability on contract. One defendant was not served and did not appear. The trial proceeded against the other two defendants. The verdict was against one of these and in favor of the other. Judgment was entered against the former individually, who is the appellant here. On the appeal he claims that the judgment should have been entered against him and the defendant not served, jointly. The duty of entering judgment upon a general verdict, is upon the clerk. § 1189 Code Civil Procedure. A mistake by him is to be remedied by motion to the court and then, if the motion be denied, by appeal from the order made. The remedy is not, by an appeal from the judgment. Wright v. Nostrand, 94 N. Y. 41, and the cases there cited.

Upon the trial the defendants asked for a dismissal of the complaint, on the ground that the evidence did not show any joint venture or joint liability. The learned counsel for appellant supposes, that the only testimony that would tend to show a joint interest or contract, was the use by witnesses of the word “ pool,” and he urges that the word pool ” is unknown to the law, and was not at all explained on the trial. This does not do justice to the evidence. The jury could know what was intended by the parties, because the testimony showed what was done, in the pool ” under the joint order given by the parties, and the recognition by the appellant that the plaintiffs had acted properly. I think also, that so many decisions have been made concerning pools that resort to the cases might be made properly for a definition of the word. It is unnecessary to refer to them, because the acts and declarations of the parties showed what they meant when the word was used.

The condition of the testimony would not justify a setting aside of the verdict as against the weight of evidence.

The judgment and order appealed from should be affirmed with costs.

Ingraham, J., concurred.


source: Caselaw Access Project

author: By the Court.—Freedman, J.

license: Public Domain

text:
    EVA HEATON, Respondent v. LEONARD F. TRACY, Appellant.

      Opening and closing argument, which party entitled to same.

    Where the defendant has the affirmative of an issue, he has the right to open and close the argument to the jury, and it is error to deny him the right. Murray v. N. Y. Life Ins. Co., 85 N. T. 236. It is a legal right not resting upon the discretion of the court, and if denied and exception is taken to the denial, is subject to review on appeal.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided January 7, 1889.
    Appeal from judgment entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendant’s motion for a new trial upon the minutes.

      James II. Elliot, attorney, and Austen G. Fox, of counsel for appellant, argued:—
    It was error to deny to the defendant the reply in summing up and the closing argument. The defendant had the affirmative of the issues-. He had the right to open and to close; certainly the same right to close that he had to open. “ The right of the party holding the affirmative upon an issue of fact to open and close the evidence, and upon the final submission of the case to the jury to reply in summing up, is too well settled to admit of any question!” This is the language of the opinion of the court in Murray v. N. Y. Life Ins. Co., 85 N. Y. 236; citing Millerd v. Thorn, 56 N. Y. 402. See also: Elwell v. Chamberlain, 31 N. Y. 611; Hoxie v. Greene, 37 How. 97 ; DeGraff v. Carmichael, 13 Hun, 129; Linsley v. Europ. Petr. Co., 3 Fans. 176; Opper v. Caillon, 9 Daly, 157; Brennan v. Security Life Ins. Co., 9 Ib. 166; Katz v. Kuhn, 4 Ib. 296; Morss v. Gleason, 2 Hun, 31; Huntington v. Conkey, 33 Barb. 218; Ayrault v. Chamberlain, 33 Ib. 229 ; Davis v. Mason, 4 Pick. 156; Stormont v. Waterloo L. & C. Ass. Co., 1 F. & F. 22; Hill v. Fox, 1 Ib. 136; Geach v. Ingall, 14 Mee. & Wel. 95; Ashley v. Bates, 15 Ib. 589 ; Barker v. Malcolm, 7 C. & P. 101; Mills v. Oddy, 6 ib. 738 ; Huckman v. Fernie, 3 Mee. & Wel. 505. This is a legal right not resting in the discretion of the court, and when insisted on and denied may be excepted to, and the ruling reviewed upon appeal from the j udgment: Cases before cited; also Howard v. Hayes, 47 Super. Ct. (15 J. & S.) 89. In Davis v. Mason, 4 Pick. 156, before cited, the judgment was reversed on the sole ground of error in ruling upon this question, although the Appellate Court thought that the verdict was right.

      Barlow & Carman, attorneys for respondent, argued :—
    It was no error to deny the defendant the closing of the argument, as the burden of proof and, with that, the affirmative of the issues on the pleadings, as amended, still remained with the plaintiff. The plaintiff, in his complaint, alleges that on or about the 16 th day of January, 1882, the defendant made his certain promissory note in writing, bearing date on that day, wherein and whereby the said defendant promised to pay on demand, after date thereof, to the order of the plaintiff, the sum of $5,000, with interest from the date thereof, for value received, and delivered the said note to the plaintiff, who is now the lawful owner and holder thereof ; that the payment of said note was duly demanded and refused; that no part of said note has ever been paid, and that there is now due and owing to the plaintiff on account thereof the sum of $5,000, and interest thereon from the 16th day of January, 1883.
    The defendant in his answer, as amended, says: “ 2nd.—The defendant admits that on or about the 16th day of January, 1882, he delivered to the plaintiff a promissory note for the sum of $5,000, and that he has not paid the said note.” “ 3rd.—The defendant, further answering, alleges that he received no consideration nor value for the said note as aforesaid delivered by the defendant to the plaintiff, and that the same was and is wholly void for want of consideration.”
    Eight to open and close. If plaintiff has to give any evidence in order to be entitled to a verdict for the amount claimed, he has the right to begin by opening the case to the jury and adducing his evidence first. The recent decisions seem to regard the question as to which party shall open the case, as one of practice, to be regulated by the discretion of the judge, and that his decision upon it is not a subject of exception. In Booth v. Millns, 15 M. & W. 669, it was said that “ the weight of authority seems to hold that an erroneous ruling as to the right to begin, to be ground for a new trial, must have worked manifest injustice.” We cannot see that the defendant suffered from the ruling in the case, and if we had the power to review a decision upon a matter which is the subject of discretion Ave should not be disposed to reverse the judgment in the case for error in the exercise of discretion.
   By the Court.—Freedman, J.

The question presented by the appeal is not controlled by the pleadings as they originally stood. The answer, as amended upon the trial, entitled the plaintiff to the direction of a verdict for the amount of the promissory note sued upon, unless the defendant established at least one of the two affirmative defenses pleaded, viz.: duress and no consideration. Upon this issue the trial judge properly held that the defendant had the affirmative and that he was entitled to open the case.

The burden of establishing a defense' having thus been put on the defendant, and the defendant, as must be assumed from the case as settled, having given evidence upon which the jury might have found in favor of both grounds of defense, it was error thereafter to deny to the defendant the right to make the closing argument to the jury. Murray v. N. Y. Life Ins. Co., 85 N. Y. 236. The jury having found for the plaintiff, the error aforesaid calls- for reversal.

The judgment and order should be reversed and a new trial ordered with costs to appellant to abide the event.

Sedgwick, Ch. J., and Ingraham, J., concurred.


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    ROBERT BROWN, et al., as Administrators, &c., Respondents v. CARL L. RECKNAGEL, et al., Appellants.

      Verdict of a jury, under instructions not excepted to, when the result of discriminations that are not apparent, not to he set aside for that reason.

    Where under the instructions of the court, not excepted to, the jury-reached a conclusion evidently by discriminations made under the instructions, the result of their discriminations is not to be set aside solely for the reason that it is not apparent how they arrived at the result. It must be sustained, if under the whole charge and upon the whole case, no sufficient reason appears to set aside the verdict.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided January 7, 1889.
    Appeal from judgment in favor of the plaintiffs entered upon the verdict of a jury, and from order denying defendants’ motion upon the minutes for a new trial.
    Seward, DaCosta & Guthrie, attorneys, and William D. Guthrie of counsel, for appellants.

      Henry G. Atwater, attorney and of counsel, for respondents.
   By the Court.—Freedman, J.

This action was brought by the plaintiffs to recover $831.67 for commissions earned by their intestate, Gerhard Henry Koop, under a certain contract with the defendants for the prosecution and collection of certain claims of the defendants.

The defendants, at. the trial, insisted that Koop had done a large part of the work necessary to be done, through an attorney, Jerome F. Manning; that Koop had authorized Manning to collect from the defendants money to be used in the prosecution of the claims under an agreement that the amounts so .advanced should be deducted from the amount of thé commissions to be earned by Koop; and that pursuant to such authority Manning had made such an agreement with the defendants, and upon thé faith of such agreement the defendants had paid to Manning various sums of money amounting in the aggregate to about $750.

The substantial controversy at the trial was as to whether the defendants had paid these sums on Koop’s account or on the individual responsibility of Manning.

The only direct evidence adduced on this point by the defense was the testimony of Manning. He was not only impeached, but the force of his testimony was weakened by the fact, among other things, that at one time he had given to the defendants his individual note for one of the sums so obtained, and that none of the moneys had been paid over to Koop. The entries on the books of the defendants which got into the case on the cross-examination of Manning, were not conclusive.

The issue was submitted to the jury who found a verdict for the plaintiffs for $400.

The defendants now claim that this verdict is inconsistent and illogical and therefore contrary to the evidence.

In submitting the issue above referred to to the jury, the trial judge, among other things, charged as follows, viz.: “ If you find that there is any reasonable distinction which ought to be applied between these various payments,—that is to say, that there is evidence before you that one was meant to be a payment on account of Mr. Koop and another made specially to Mr. Manning himself, you will treat the account accordingly as you, as merchants, understand. On the other hand, if you think they were all covered by the same general idea, then you will find accordingly.”

To this part of the charge no exception was taken, although the defendants did except to a prior part of the charge which left it for the jury to say whether the money was advanced to Manning on his own individual responsibility. Under this instruction the jury discriminated, and the result of their discrimination is not to be set aside solely for the reason that it is not apparent how they arrived at the result. Suffice it to say, that under the whole charge and upon the whole case, no sufficient reason appears why the verdict should be set aside.

There was no error calling for reversal in the admission or rejection of evidence or in the charge as delivered, and none of the exceptions taken are tenable.

The judgment and order should be affirmed with costs.

Sedgwick, Ch. J., and Ingraham, J., concurred.


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    MILTON J. ROBERTS, Plaintiff and Respondent v. CHARLES C. LLOYD, Defendant and Appellant.

      An exception to the instructions of the court to the jury, should be specific, and if general, is untenable.

    In this case, where a recovery was sought upon a contract for medical service for a year, at a given price, the trial judge held that the defendant had not proved, nor given evidence that tended to prove, that he had the right, if dissatisfied, to withdraw his child from plaintiff’s professional treatment at the end of six months, as claimed in the answer.
    Entertaining this view, and the answer admitting a contract for a year, the judge instructed the jury to find a verdict for the plaintiff in the sum of $350, with interest which remained due under the contract between the parties as the judge assumed it was proven.
    To said instruction the counsel for the defendant excepted. The exception is untenable because it is a general one, and because on examination of the evidence, it is found to be insufficient to establish the defense in the particulars stated by the judge.
    If there was any other question upon which the defendant claimed the right to go to the jury, it should have been pointed out for consideration by defendant’s counsel.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided January 7, 1889.
    Appeal from judgment entered in favor of the plaintiff upon the verdict of the jury, and from order denying defendant’s motion upon the minutes for a new trial.

      S. F. Kneeland, attorney and of counsel for appellant, argued:—
    The rule to he, that where both plaintiff and defendant seek to take the case from the jury by a motion to the court for dismissal, nonsuit or direction to find a verdict, they elect to consider it a question of law, and an exception to a direction to find against them will not be sufficient to raise the questions sought to be raised in this case, but whenever but one side asks the court to take it from the jury, the other side may rest securely upon an exception to the decision of the court against him without any specific request to charge.
    The leading case on this point is Stone v. Flower, 47 N. Y. 566. The court of appeals there held that where, upon the trial of an action there are disputed questions of fact, a direction by the court to the j ury to find for the defendant is in effect a decision that the plaintiff is not entitled to recover upon any finding warranted by the testimony, and the exception to such direction is sufficient to present the question of law upon appeal, and that the plaintiff is not required to request the court to submit the questions of fact or make a specific charge to the jury. This principle has been followed in a large number of cases, and is the law in this state on this point. If we, at the conclusion of the trial, had asked the court to direct a verdict for the defendant, or for a nonsuit, then we would have consented that the whole question go before the court. It would bring us within the only exception to the foregoing rule, and the exception taken would have been insufficient. The rule as laid down in Stone y. Flower is followed in this court in Miner v. Mayor of New York, 37 Super Ct. (5 J. & S.) 174, and in the court of appeals in Trustees of Easthampton v. Kirk, 68 N. Y. 459. The exception to the rule is shown in Hegaman v. Burr, 41 Super. Ct. (9 J. & S.) 423, and in several cases in the court of appeals. Chief Justice Daly, in Waters v. Marrin, 13 Daly, 57, states the rule clearly, and shows it to be directly applicable to the case at bar. The learned Chief Justice, on page 58, says: “ The case on which the defendant’s counsel relies' as controlling (Stone v. Flower, 47 N. Y. 566), was a case in which the court directed the jury to find a verdict for the defendant, to which the plaintiff excepted, and in which it was held that if upon any finding warranted by the testimony the plaintiff would have been entitled to recover, this ruling was erroneous; and that the point was sufficiently raised by an exception to the court directing a verdict for the defendant. This ease would have been applicable if' the defendant in the present case had excepted to the judge’s directing the jury to find a verdict for the plaintiff. If the defendants had taken such an exception, which they did not, they would under it, upon this authority, have been entitled to a new trial if it appeared that upon any finding warranted by the evidence the defendants could have recovered.”. I cite this opinion specially for the purpose of showing that the rule applies as well where the court directs the verdict for the plaintiff and the exception is made by the defendant, as in the case of Stone v. Flower, where the direction is made for the defendant and the exception taken by the plaintiff.

      Warner & Frayer, attorneys, and Eugene Frayer of counsel, for respondent.
   By the Court.—Freedman, J.

As the verdict of the jury shows that upon the second cause of action their finding was for the defendant, it is only necessary to consider the disposition which was made of the issues concerning the first^ cause of action. Upon this branch of the case the trial judge held that the defendant had not proved, or given evidence that tended to prove, that he had a right, if dissatisfied, to withdraw the child from plaintiff’s professional treatment at the end of six months. Entertaining this view, and the answer admitting a contract for a year, the judge instructed the jury to find a verdict for the plaintiff in the sum of $350 with interest which remained due under the contract between the parties as the judge assumed it was proven.

To such instruction the counsel for the defendant excepted. The exception is untenable because it is a general one, and because on examination the evidence is found to be insufficient in the particulars stated by the judge. If there was any other question upon which the defendant claimed the right to go to the jury, it was the duty of the counsel for the defendant to point it out and to insist upon its consideration.

What then occurred is as follows, viz.: Defendant’s counsel asked that the jury should be charged that if they should find “ that the agreement was, at the time of the payment of the first $350, and of the making of the contract for one year, that a certain instrument should be made within six weeks, and if that instrument was not made, then the plaintiff had broken his contract, and was not entitled to recover anything whatever.” The court refused so to charge and said: “I do not think that the evidence would warrant any such conclusion. ' The mere expectation on the part- of the doctor that he would have an instrument of that kind, or that the child would be able to walk in six weeks, or in any other time, as testified to by the witness for the defense, does not constitute an agreement.”

To this ruling no exception was taken, nor was a request made that the question of fact therein referred to should be submitted to the jury. By doing neither and failing to do both, the defendant acquiesced in the ruling and waived the right, if any he had, to have such question submitted.

This being so, and the general exception taken to the direction of the verdict applying only to the specific reasofi assigned for the direction, and the reason so assigned being a good and valid one, the decision of The Trustees of East Hampton v. Kirk, 68 N. Y. 459, does not apply, but the case is controlled by the principle of the decisions of Muller v. McKesson, 73 N. Y. 195, and Ormes v. Dauchy, 82 N. Y. 443.

Upon the whole case nothing appears which constitutes ground for reversal.

The judgment and order should be affirmed with costs.

Sedgwick, Ch. J., and Ingraham, J., concurred.


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    MICHAEL BYRNE, Respondent v. THE KNICKERBOCKER ICE COMPANY, Appellant.

      Negligence, damages resulting therefrom—Ambulance entitled to right of way.

    Upon the question of defendant’s negligence and plaintiff’s contributory . negligence this case was one for the consideration of the jury.
    Under chapter 186, of the laws of 1879, the ambulance was entitled to the right of way as against the ice wagon, and the plaintiff, in a certain aspect of the case, had a right to assume that defendant’s driver would pay proper heed to the ringing of the ambulance bell and plaintiff’s shout- ' Ing.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided January 7, 1889.
    Appeal from judgment entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendant’s motion upon the minutes for a new trial.

      Maclay & Forrest, attorneys, and Albert Stichney, of counsel for appellant.

      Isaac Fromme, attorney, and Arthur C. Palmer, of counsel, for respondent.
   By the Court.—Freedman, J.

The action was brought to recover damages for personal injuries sustained by the plaintiff in a collision between an ambulance driven by him and an ice wagon driven by a servant of the defendant. Upon the question of defendant’s negligence and plaintiff’s contributory negligence, "the case, upon all the facts and circumstances disclosed .at the trial, was one for the consideration of the jury, especially as under ch. 186 of the laws of 1879 the ambulance was entitled to the right of way as against the ice wagon, and the plaintiff, in a certain aspect of the case, had a right to assume that defendant’s driver would pay-proper heed to the ringing of the ambulance bell and plaintiff’s shouting. The questions of fact involved were fully and fairly submitted to the jury under a charge which placed the burden of proof upon the plaintiff and in all other respects carefully guarded all the rights of the defendant. Upon the whole case no error appears in the charge, or the refusals to charge, upon the question of damages, nor can it be held that the verdict is excessive.

The record disclosing no ground for reversal, the judgment and order should be affirmed with costs.

Sedgwick, Ch. J., and Ingraham, J., concurred.


text:
    AMERICAN SURETY COMPANY, Respondent v. FRANCIS B. THURBER, et al., Appellants.

      Bond or Agreement of Indemnity by the defendants to the plaintiff, covenanting to save plaintiff’s harmless upon its guaranty of indemnity to a sheriff, against the consequences of levies under executions in his hands—Extent of liability.

    The extent of the liability depends upon the conditions of said agreement, and these are to be so construed as to give due effect to each and every part thereof, according to the intention of the parties at the time. When thus construed, a reference in a part of one of the recitals to a sum of $214.52, must be rejected as plainly erroneous when it so appears from the remaining portion of the same recital.
    This reference does not constitute the whole of the recital, in regard to the extent of the bond given by the plaintiff for defendants to the sheriff, for in continuance the recital' further states in reference to the said bond “ a copy of which bond is hereto annexed marked * A ’ and forms a part hereof.” The copy of the bond referred to, being actually annexed, it forms a part of the recital, and corrects any misdescription therein, and shows the amount of liability assumed by the plaintiff to be $10,000. There is no ambiguity. The operative words of the agreement are clear and cannot be controlled nor affected by the erroneous recital. Holmes v. Hubbard, 60 N. Y. 183.
    It makes no difference, that some of the other execution creditors executed to the plaintiff separate indemnity agreements for the whole loss, similar to that given by these defendants. If all the execution creditors, including the defendants, had executed to the plaintiff a joint indemnity agreement, a different question would be presented.
    Before Freedman and Ingraham, JJ.

      Decided January 7, 1889.
    Appeal from, judgment in favor of the plaintiff entered upon the verdict of a jury, and from order denying defendant’s motion upon the minutes for a new trial.

      H. Arlington, attorney and of counsel for appellants, argued: —
    I. A recital in a bond preceding the condition is conclusive upon the parties as an admission of the fact recited, and restrains the condition, the words of which imply a greater liability than the recital. Bell v. Bruen, 1 How. U. S. 183; Arlington v. Merricke, 2 Saund. 403; Liverpool Waterworks Co. v. Harpley, 6 East 507; Wardens, &c., v. Bostock, 2 Bos. & P. 175 ; Leadley v. Evans, 2 Bing. 32; Pepin v. Cooper, 2 Barn. S Aid. 431; Sanger v. Baumburger, 51 Wis. 592; Bennehan v. Webb, 6 Fred. L. (N. C.) 57 ; Carpenter v. Buller, 8 M. &, W. 209; Payler v. Hammersham, 4 Maule & S. 423. It will be observed by referring to the bond given by the defendants to the plaintiff, that the recital and the condition point in different directions in reference to the extent of the obligation incurred by the defendants. in giving the same. It will also be observed that in paragraph “ First ” of said bond so given by defendants to the plaintiff the annual charge or premium to be paid by the defendants to the plaintiff for executing the bond mentioned in the recital above set forth is two dollars and fifteen cents. The condition of the bond so executed by the defendants is broad and general in its terms, and such as is usually found in bonds of this character.
    II. Where several creditors under separate levies give indemnity bonds, an action cannot be maintained against any one creditor for the entire damage by reason of such levies. Posthoff v. Schriber, The Daily Register, March 12th, 1888; Livingston v. Bishop, 1 John. 290 ; Miller v. Fenton, 11 Paige, 19.

      Dill, Chandler & Seymour, attorneys, and Edward C. James, of counsel for respondent, argued:—
    ■ I. It is not true that the indemnity agreement, given by the defendants, recites that it was given only for $214.52. The recital referred to is in these words: “ Whereas, at the special instance and request of the parties of the first part, and on the security hereof, the American Surety Company has become surety for said Thurber, Whyland & Co., on a certain bond to the sheriff of ■Columbia county, of even date herewith, for the sum of $214.52, in an action in the Supreme Court of the county of New York and state of New York, wherein said Thurber, Whyland and others are plaintiffs, and Mark T. Mason is defendant, a copy of which bond is hereto annexed, marked ‘ A,’ and forms a part thereof.” The copy of the bond to the sheriff, which forms part of the same recital and corrects any misdescription therein, shows the amount of liability assumed by the plaintiff to be $10,000; it recites the names of all the execution creditors, interested in the proposed levy, and it expressly covenants to indemnify the sheriff against all damages, etc., which may arise from the levying and making sale, under and by virtue of such executions, of all or any personal property, which he may judge to belong to such judgment debtor, etc. This clearly contemplates that the sheriff is to levy under all such executions. With this undertaking in their immediate view, and annexed to their own agreement, the defendants covenant with the plaintiff, that they “ will at all times indemnify and keep indemnified the said company from and against all loss, damages, costs, charges, counsel fees and expenses whatsoever, which said company shall, or may, for any cause, at any time, sustain or incur, by reason, or in consequence of said company having executed said agreement, and do further covenant and agree to pay to said" company and its representatives, all damages for which said company, or its representatives, shall become responsible upon the said bond, before said company, or its representatives, shall be compelled to pay the same,” etc. Nothing in this contract limits the obligation of the defendants to the amount of their execution, which was $256.79 instead of $214.52. There is no agreement to pay a pro rata share of the loss, or to the extent of their interest in the levy, and there is no reference to any other agreements of like character, or to any other persons who are to bear a portion of the loss. This is a plain, direct and specific contract on the part of the defendants to save the plaintiff harmless from the whole loss.
    When a bond is received by an obligee, as a security against and a consideration for becoming surety, it should have that interpretation, as between the parties, which will make it effectual. Belloni v. Freeman, 63 N. Y. 383, 388-9. When the operative words of a deed are clear and unambiguous, a recital may not control them. Holmes v. Hubbard, 60 N. Y. 183-6. Here the obligation of the defendants to pay the whole loss, even before the plaintiff is obliged to pay any of it, is clearly expressed in their written contract; the recital "referred to does not qualify or limit that obligation; •any ambiguity which might otherwise arise from the misdescription of the bond is corrected and dispelled by annexing a copy of the bond as a part of the recital. The defendants had a perfect right to ask the plaintiff to indemnify the sheriff against all of these losses, and to agree to secure the plaintiff harmless from all damage in consequence of its so doing. It was-not even necessary that the defendants should have had any interest in the proposed levy to do this. The case against them is not weakened by the fact that they were interested parties. The plaintiff is simply a surety, having no interest in the acts of the sheriff. It could have let the matter entirely alone. It acted as surety at defendants’ request, and in the faith of their contracts. The defendants were well known and responsible parties. If they had not given this agreement of indemnity to the plaintiff, the latter would not have guaranteed the performance of the undertaking given to the sheriff. The defendants’ agreement to indemnify the plaintiff against all damages arising from these levies may have' been an unwise one, but they should have thought of that before they gave it, and induced plaintiff’s action on the faith of it. The court has no power to change it. A contract is a contract, and, if valid, must be enforced according to its terms. The motion to dismiss the complaint was properly denied.
    II. As to the other indemnity agreements. There was a large number of other judgment creditors, whose executions were also in the sheriff’s hands, and who wrere likewise interested in the proposed levy. Some of these executed to the plaintiff separate indemnity agreements for the whole loss similar to that given by these defendants. The position of the defendants is that they should not perform their contract with the plaintiff, because the plaintiff did not pursue its remedy against these other indemnitors upon their separate agreements. This position is wholly untenable. This is a case where each tub stands on its own bottom. It is none of defendants’ business how many separate indemnity agreements the plaintiff holds for this loss. The sheriff and the several judgment creditors, who directed him to levy upon the property of Brown, were trespassers. Fonda v. Van Horne, 15 Wend. 631; Stevens v. Somerindyke, 4 E. D. Smith, 418. Had all the judgment creditors united in the request, each would be liable for the whole damage, and, if one was compelled to pay the whole, he would have no remedy for contribution from the others. Peck v. Ellis, 2 Johns. Ch. 131; Miller v. Fenton, 11 Paige, 18; Wehle v. Haviland, 42 How. Pr. 399; Andrews v. Murray, 33 Barb. 354. Had all united in a joint contract of indemnity to the plaintiff, and one been obliged to pay the whole damage, he would be entitled to compel contribution from his fellows, and his remedy against them would be confined to a claim for contribution. Booth v. F. & M. Nat. Bk., 74 N. Y. 228-232. But here there is not even a joint contract. Each judgment creditor stands entirely separate from the others. Each contracted separately with the plaintiff that, in consideration of its guaranteeing the performance of the bond of Hamilton and Wood to the sheriff, he would pay all the damages which the plaintiff suffered in consequence of such guaranty. No one is a surety for any other; there is no claim that any one of them acted at the request of any other. It is simply the case of separate and independent contracts of indemnity against an obligation. Each is held to the full performance of his own contract, precisely the same as if the separate contracts never existed.
   By the Court.—Freedman, J.

This action was brought upon an indemnity agreement executed by the defendants to the plaintiff, to recover the sums which the plaintiff had been compelled to pay. The extent of the liability of the defendants depends upon the said agreement, and this is to be construed so as to give due effect to each and every part thereof according to the intention of the parties at the time.

! ' When thus construed, the reference in one' of the recitals to the sum of $214.52 must be rejected as plainly erroneous. It does not constitute the whole of the recital as to the extent of the bond given by the plaintiff at the request of the defendants to the sheriff of Columbia county, but, on the contrary, the recital goes on and says, viz.“ a copy of which bond is hereto-annexed, marked ‘ A ’ and forms- a part hereof.”

The copy of the bond thus referred to appears to have been actually annexed. It therefore forms part of the same recital and corrects any misdescription therein.. It shows the amount of liability assumed by the plaintiff to be $10,000; it recites the names of a large number of execution creditors interested like the defendants in the proposed levy, and it expressly covenants to indemnify the sheriff ’ against all damages, etc., which may arise from the levying upon, and making sale of, under and by virtue of “such executions” all or_any personal property which he may judge to belong to such judgment debtor, etc. This clearly contemplated that the sheriff was to levy under all such executions.

• With this bond in their immediate view and annexed to their own agreement, the defendants covenanted with the plaintiff that they will at all times indemnify and keep indemnified, the said company from and against all loss, damages, costs, charges, counsel fees and expenses whatsoever, which said company shall or may, for any cause, at any time, sustain or incur by reason or in consequence of said company having executed said agreement; and does further covenant and agree to pay to said company and its representatives all damages for which said company or its representatives shall become responsible upon the said bond before said company or its representatives shall be compelled to pay the same, etc.

Nothing in this agreement limits the obligation of' the defendants to the amount of their execution, which was $256.79, instead of $214.52, or to any pro rata share of the loss, and there is no reference to any other agreements of like character, or to any other persons who are to bear a portion of the loss. The agreement, as a whole, is a plain, direct and specific contract on the part of the defendants to save the plaintiff harmless from the whole loss. There is no ambiguity. The operative words of the agreement being clear and unambiguous, they cannot be controlled by the erroneous recital. Holmes v. Hubbard, 60 N. Y. 183. For the same reason it can make no difference that some of the other execution creditors executed to the plaintiff separate indemnity agreements for the wdiole loss similar to that given by these defendants. If all the execution creditors, including the defendants, had executed to the plaintiff a joint agreement, a different question would be presented.

The defendants failed to prove any conspiracy or collusion, and an examination of the whole case shows that all the exceptions taken by them are untenable. When the proofs were closed, there was no question for the jury, and consequently the verdict was properly directed.

' The judgment and order should be affirmed with costs.

Ingraham, J., concurred.


author: By the Court.—Truax, J.

text:
    ANNA GRANGIER, Appellant v. WILLIAM D. HUGHES, et al., Respondents.

      Attorney, misconduct of; Summary power and jurisdiction of the court in the premises, should be invoked only in an action in which the alleged misconduct was committed and in the court in which such action was brought.

    This court has power over an attorney, only so far as relates to his conduct in an action in this court. The practice has always been to make a motion of this kind in the particular action in which the misconduct occurred. It does not appear that defendants have so conducted themselves in this action, that the summary power of the court should be invoked against them.
    The application should have been made in the original action in which the alleged misconduct was. committed, and it does not appear that such original action was or was not in this court, and if it was not, the application could not be entertained, hence the order denying the motion is denied.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided January 7, 1889.
    Appeal from an order denying a motion to compel the defendants to pay a judgment recovered against them.

      V. Wright Kingsley, attorney and of counsel for appellant, argued:—
    I. The Bowling Green Savings Bank of N. Y. v. Lewis L. Todd, 52 N. Y. 489, was an action of foreclosure, and the special term, ordered attorneys to pay over $ 1,118.08, which they retained for services, within ten days, or that a non-bailable attachment issue. The general term modified the order to $519.81 and the court of appeals affirmed the general term, and held, the practice in this state has been uniform to allow an attachment when an attorney retains money in his hands that justly belongs to his clients. “The court exercises this jurisdiction over officers of the court in which correct conduct, as officers, the dignity of the court is involved. The misconduct for which punishment is authorized, is the retaining of the client’s money, without legal grounds.” The court will consider whether it is a case for summary proceedings, under the statutes and practice of the court..
    II. It is now well settled that summary jurisdiction extends to any matter on which an attorney has been employed by reason of his professional character whether in actions or not. Anderson v. Bosworth, R. J., 1887, 6 Atlantic Rep. 339 ; 24 Weekly Digest, 200 ; Stage v. Stevens, 1 Den. 267; Gains v. Graves, 2 Rob. 707; People v. Wilson, 5 J. R. 367. By the Laws of 1846, chapter 150, p. 164, it provides, “that in all actions upon contract for moneys received by an attorney, or by any other male person in a fiduciary capacity, the defendant or defendants, shall be liable to imprisonment as in actions for wrongs.” This statute (with the Laws of 1847, ch. 390), are ample for the courts to exercise any summary proceedings in actions brought against attorneys who are acting in a fiduciary capacity, and they may be arrested by an order of the court, when action is brought, or when judgment is recovered therein, provided that he has not been arrested before judgment is recovered.
    III. An attorney is an officer of this court, and is liable to be .called to account for his professional conduct toward his client whether in an action or otherwise. Code, §§ 14 and 2266; Pitts v. Davison, 37 N. Y. 235; 2 Rev. St. 534. If he collects moneys for his client as an attorney, and conceals the fact and converts the same to his own use and refuses to pay over the same when demanded, he is liable to arrest by an order of court or in default to pay, to be attached for contempt ■in disobeying the order. This remedy may be had either in a summary way when there is an action in •which the' delinquency occurred, or when an action is brought therefor.

      Hughes & Morris, attorneys, and H. J. Morris, of counsel for respondents, argued :—
    I. The action was simply for money had and received, and so was the judgment and also the findings of Judge Arnoux at trial term. The erroneous allegations of a wrongful conversion in the complaint did not change the nature of the. action. Eector &c. v. Crawford, 36 Super. Ot. 308.
    II. The plaintiff could have originally instituted this proceeding against defendants for the sum of $95, but having elected to proceed by action, she is confined to such remedies as may be afforded her in ' that action. Bohanan v. Peterson, 9 Wend, 503 ; Cottrel v. Finlayson, 3 How. 242.
   By the Court.—Truax, J.

The papers on this appeal show that the plaintiff had employed the defendants as her attorneys to collect a certain claim for her; that they collected such claim, but that they did not pay over to her the amount of money that they had collected for her. A demand was made on the attorneys for the amount which the appellant claimed remained in their possession ; this demand was not complied with, and then the plaintiff brought an action to recover the-amount remaining unpaid, and recovered judgment for that amount with costs. Execution was issued on such judgment and was returned wholly unsatisfied. After such return of the execution the plaintiff, on affidavits and on the pleadings, made a motion to compel said defendants to pay the judgment recovered against them, as aforesaid. This motion was denied and the plaintiff appeals from the order denying this motion.

It was held by the special term, that by obtaining the judgment aforesaid, the plaintiff no longer could proceed in this summary way to compel the defendants to pay the money, and the case of Bohanan v. Peterson, 9 Wend. 503, was cited as an authority for that proposition. This case is not an authority for that proposition. In the Bohanan case it appeared that the plaintiff in the action had settled the controversy between himself and his attorneys by taking a note from the attorney, and the court held that this note was a waiver of his right to proceed summarily against his attorney.

It is not necessary, for the decision of this appeal, that we should hold that a party waives his right to proceed summarily against his attorney by commencing an action to recover the amount claimed to be due from the attorney. This court has power over an attorney, only so far as relates to his conduct in an action in this court. Willmot v. Meserole, 16 Abb., N. S., 308.

'■ And the practice has always been to make a motion of this kind in that particular action in which the misconduct occurred. It does not appear before us that the defendants have conducted themselves in this particular action in such a manner that the summary power of the court should be invoked against them. The application should have been made in the original action in which the alleged misconduct was committed. It does not appear from the motion papers whether such action was or was not in this court; if it was not in this court, we cannot entertain this application.

The order appealed from is affirmed with costs.

Sedgwick, Ch. J., and Freedman, J., concurred.


author:
O’Gorman, J.
      By the Court.—Ingraham, J.

text:
    LIDGERWOOD MANUFACTURING COMPANY, Appellant v. JOHN C. ROGERS, et al., Respondents.

      New trial—Stenographer's minutes, inability to obtain by reason of death of stenographer and counsel's want of recollection as to details of testimony insufficient under the facts of the case to authorize the granting of a new trial.

    The appellant being unable to procure a copy of the stenographer’s minutes of the testimony by reason of the death of the stenographer, moved for a new trial on affidavits showing that fact, and on the affidavit of the counsel who tried the cause, to the effect, that the trial lasted three days; that very numerous witnesses were examined; that he had a general recollection of the tendency and bearing of the testimony, hut not of details, and had not enough recollection of the case to base a case on appeal thereon; and that he had been informed by the judge before whom the cause was tiled that his minutes were insufficient for the purpose of making a case on appeal. It did not appear that any exceptions were taken to the admission or rejection of evidence. The motion was denied and an order to that effect duly entered, and an appeal taken. On the argument of the appeal it appeared, by concession of counsel for appellant, that the only point of law involved was, as to an acceptance of the machine, for the purchase price of which the action was brought, by reason of its retention and use without objection for the space of a month.

      Held, that the grounds presented were not sufficient to authorize a new trial, and that the order below should be affirmed.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided January 7, 1889.
    Appeal from order denying motion to set aside verdict and for a new trial.
    The facts sufficiently appear in the opinions and the head note.

      The judge at special term on denying the motion, wrote as follows:—
   O’Gorman, J.

At the trial of this action the plaintiff was defeated, and the jury found a verdict for defendants on their counterclaim of $816.52. The plaintiff duly appealed to the general term from the judgment entered in favor of the defendants.

The plaintiff has used due diligence to procure a copy of the minutes taken by the official stenographer at the trial. The stenographer has died without copying his short-hand minutes into ordinary handwriting, and it is found to be impossible to make such copy from his minutes. The plaintiff being unable to make a case on appeal, as required by the Code, § 997, he applies for a new trial to this court at special term.

I am not aware of any provision in the Code warranting the granting of the relief asked for under the circumstances of this case. But, assuming that there is some inherent power in the court to protect litigants from manifest injustice the question arises, on which of two litigants, each having rights, and each being innocent, the consequences of this untoward event should fall.

First, as to the defendants, they have secured a judgment, and it continues in full force and effect until set aside on appeal. No further step was required of the defendants. Their legal rights were ascertained, adjudicated and beyond the reach of impeachment or question unless by means of a decision of the appellate court, setting aside this judgment. In order to cause it to be set aside the plaintiff was bound. to take certain steps essential to bringing the case before the appellate court. It has become impossible for him to take these steps, not because of any act for which either the defendants or the court is responsible.

This is not a case where, by reason of the delay or demise or change of office of a judge of the court, the case on appeal has not been signed or sealed as in the cases cited on this motion.

I cannot inquire into the merits of this action, but must assume that the judgment was rightful. As far as appears on this motion no error has been committed at the trial, no injustice has been done in the verdict, and the judgment is right. To set aside that judgment or even to impugn its force and effect without sufficient cause would be an injustice to the defendants. It would be to take from them, without due process of law, a valuable vested interest and property which they have lawfully acquired and possess. I know of no authority exactly in point, and must apply to this case the principle of law which I believe to be controlling.

Where parties have equal rights the law will not interfere against the party in possession. In aequali jure melior est conditio possidentis.

The motion for a new trial is denied, without costs.

Harriman & Fessenden, attorneys, and of counsel for appellant, among other things, argued :—

I. Under the Code of Civil Procedure and the rules of the court governing appeals, there is devolved upon the court the duty of supplying a copy of the testimony to a person entitled thereto, and litigants have a right to assume that the machinery of a court will do its work. The stenographer is an officer of the court. Code Civ. Pro., § 82. The original stenographic notes taken by the official stenographer are part of the proceedings in the cause. Code Civ. Pro., § 84. If the stenographer dies they must be delivered to his successor in office, to be held by him with like effect as if they had been taken by him;” and they must be written out at Length, if the stenographer is required to do so by a person entitled to the same. Ib. These provisions of the code are intended to be relied upon, and a litigant relying upon them properly assumes that when the trial is over the notes will be in possession of the court officer; that that officer will be competent to furnish him with the testimony written out, and the .event of the stenographer’s death is provided for by section 84. Therefore, there is no duty upon any one to have an additional stenographer present, for the sections of the Code cited amount to an undertaking by the court, that its records will be kept and its officers shall be competent to do with them what the law says they shall do, viz., transcribe the notes and furnish the testimony for making up the case. So, therefore, appellant urges that the court has failed to fulfil its obligation, failed to do the work which appellant had a legal right to demand to have done, and appellant is not in any respect at fault. The employment of a stenographer by appellant would have been superfluous because his notes could not have been used, without a stipulation from opposing counsel that they should be deemed conclusive, and such notes could not have been taken as the basis of making up the case. The law gives the plaintiff-appellant an appeal and regulates the details of it. To protect this right the law directs each court to appoint a competent stenographer to take the notes of the testimony and furnish the same, and directs that he or his successor shall do so. The law is not complied with if this is not done, and an assurance upon which the litigant properly relied is unfulfilled, because the deceased official stenographer was incompetent to take notes which his successor can decipher; or the successor is incompetent to transcribe the records left by his predecessor. Incompetence somewhere is the direct cause of the misfortune, and the embarrassment consequent upon it must be charged directly to the exercise of the power of appointment. It is not intended to reflect upon the competence of either stenographer to take and transcribe his own notes, but something more than that was required of the court’s appointees.

II. The court has authority to grant a new trial of this case on the grounds shown, notwithstanding that no special provision is made by the Code for new trial in such a cáse. The power is inherent. It has been done several times in precisely analogous cases, where parties had lost the benefit of exceptions after verdict and judgment. New trials have been granted for that reason in Borrowscale v. Bostworth, 98 Mass. 34; Nind v. Arthur, 7 Dowling & Lowndes Pr. Cas. 252; Bennett v. Steamship Co., 16 C. B. 28; Newton v. Boodle, 16 C. B. 795; McNamara v. Minn. R. R. Co., 12 Minn. 394; Waters v. Waters, 26 Maryland, 53; Cutler v. Rice, 14 Mass. 494.

III. The principle “ in aequali jure, melior est conditio possidentis ” is not controlling in this case. The maxim has its chief application in the cases of disputed title to real estate, or cases of actual tangible possession of the object in controversy. Broom's Legal Maxims (Phila. ed. 6th), 715. It is a principle applied in determining relative rights as matter of law, but it never governs courts in determining matters of practice. It is seen that the principle should not be applied in a case like this, for an illustration of the result of so applying it will show what it could accomplish if followed to its legitimate end. For example, let it be supposed that in the case at bar the verdict had been for a million dollars, or the title to Central Park, in the city of New York, and the stenographer’s notes had been obliterated or destroyed. Following the application of the principle to its logical end, would result in making the verdict of a jury upon a question of great magnitude final. It would deprive the appellant of a review of the exceptions and an appeal, and would make that verdict the final determination. This cannot possibly be the law, and the principle is as little controlling in the case of comparatively slight importance.

E. T. Lovatt, attorney and of counsel for respondents, submitted no points.

By the Court.—Ingraham, J.

The appellant based his application in the court below upon the fact, that in consequence of the death of the official stenographer he had been unable to obtain a copy of the minutes of the trial and that he had forgotten the testimony of the witnesses, and was therefore unable to make up the case on appeal, and therefore asked that the verdict be set aside and a new trial granted.

It is within a comparatively short time that stenographers have been used for the purpose of taking notes of the evidence given on trials of actions, and before their use was adopted, counsel for the parties were compelled to prepare the case and bill of exceptions from their notes or recollection of the testimony of the witnesses and the proceedings on the trial, and it is very certain that no court would have entertained an application for a new trial on the ground, that in consequence of the failure of counsel to remember the testimony they were unable to properly prepare the case or bill of exceptions.

No authority is cited to us to. show that a new trial was ever granted for such a reason. It was not necessary to insert in the case on appeal all the testimony. The questions of fact must be assumed to have been disposed of by the verdict of the jury, and the only question of law that counsel on the argument could state was involved in the case, viz., that the machinery, to recover the purchase price of which the action was brought, was accepted and used by the defendant without objection for upwards of one month, can be presented to the court on appeal without the insertion in the case of all the testimony.

It was the duty of the appellant to make the case, inserting so much of the evidence as he considered material to present the questions involved on the appeal. If the case as proposed by him did not fairly present the testimony, the respondent could then propose amendments and it was then the duty of the trial judge to settle the case. That this could have been done so as to preserve all the substantial rights of the appellant is clear, and this is especially true as, so far as appears, there was no exception taken at the trial either to the admission or rejection of evidence or to the instructions given to the jury.

This case is very different from the cases cited by the appellant where in consequence of the death or disability of the trial judge, the bill of exceptions could not be settled or sealed, and thus the defeated party lost the right to present the case to the appellate court.

In this case no such result follows from the failure of the appellant to obtain the testimony. The appellant’s right to appeal from the judgment still exists, and the only result of the inability to obtain a transcript of the notes of the stenographer was, to give the parties a little more trouble in preparing the case on appeal.

To set aside a verdict on such ground would be an act of great injustice to the respondents.

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

Sedgwick, Ch. J., and Freedman, J., concurred.


author: By the Court.—Ingraham, J.

text:
    FRANK BROWN, Respondent v. THE TWENTY-THIRD STREET RAILROAD COMPANY, Appellant.

      Negligence, rounding a corner at a greater speed than allowed by the ordinance, with other circumstances, sufficient to call for submission to the jury.—Contributory negligence, a foot passenger crossing a street railroad is not subject to the same duties as one crossing a steam railroad.— Failure to see approaching street car, not as matter of law contributory negligence.

      Where the injury sued for was caused by a street ear passing easterly, along a street running east and west, and rounding a curve southerly, into a street running north and south, striking the injured party at the northwest corner of the streets, and there is evidence that the car approached and rounded the corner at a rate of five or six miles an hour, and the driver testified that he saw the party when he was a block away in the street running east and west, that there was nothing between the car and the injured party, and it did not appear that the driver attempted to stop the car until it was close to the injured party, or that there was anything to prevent the driver from stopping the car before it struck the injured party, Held, that the question of defendant’s ■ negligence was properly submitted to the jury, and in connection with this evidence, the jury might consider the ordinance prohibiting the turning of corners with vehicles or horse, or horses, at a greater speed than three miles an hour.

      Contributory negligence.—The rule as to the duty of a person about to cross a steam railroad track does not apply in equal strictness to a person about to cross a horse-railroad in a crowded street in a city. A failure to see an approaching street car under such circumstances is not, as matter of law, contributory negligence.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided January 7, 1889.
    Appeal from judgment entered on the verdict of the jury on order denying motion for a new trial.
    The facts sufficiently appear- in the opinion.

      Leslie W. Russell, attorney and of counsel, and Welton O. Percy, of counsel, for appellant, among other things, argued:—
    Taking plaintiff’s own version of the occurrence, he cannot recover. He was negligent in not looking for the car before he stepped on the track. His own testimony is fatal. The day was clear. Plaintiff was thoroughly familiar with the place. He was on foot, and could easily have taken care of himself if he had not blindly walked on the track—thinking about his crabs. Young v. N. Y., L. E. & W., 107 N. Y. 500; Woodard v. N. Y., L. E. & W., 106 Ib. 369 ; Cordell v. N. Y. C. Co., 75 Ib. 330; Connely v. N. Y. C. Co., 88 Ib. 346; Salter v. U. & B. Co., 75 Ib. 273; Weber v. N. Y. C. Co., 58 Ib. 451. Add to all the other considerations the noise necessarily made by the car, especially if coming rapidly and it is perfectly plain that the so-called obstacles to the plaintiff’s observing the approach of the car, if he had paid the slightest attention, existed only in his own imagination. Cordell v. N. Y. C. Co., supra; Salter v. U. & B. Co., supra; Haight v. N. Y. C. Co., 7 Lansing, 11. But assume that he could not see. The law requires him to use all his senses, his ears as well as his eyes. To listen as well as to look. And if there were obstructions to his vision, the more imperative became his duty to stop and listen. He did neither and heedlessly and blindly walked on the track.

      Townsend, Dyett & Einstein, attorneys, and B. F. Einstein of counsel for respondent, argued :—
    I. The accident was caused solely by the negligence of the driver of the car, and there was no contributory negligence on the part of the plaintiff. The driver drove his horses, upon a down grade and around the corner of Beekman and South streets into South street, at the rate of five or six miles an hour, in defiance of the ordinance restricting the speed of horses under such circumstances to three miles an hour. It is very evident that this misconduct of the driver was the sole cause of the accident. The defendant insists that it was the duty of the plaintiff before venturing to cross the street to stop and look for a car. The plaintiff did not owe to the defendant the exercise of extraordinary care. The diligence which the law required of him was such as a prudent man would ordinarily exercise under similar circumstances. To hold, as matter of law, that the plaintiff should have stopped at the edge of the track and looked for a car would be requiring him to exercise extraordinary care. Not one man in a thousand in this city, under the same circumstances, would have stopped, and peeped from behind the wagons up the track for a car. It may have been a proper question for the jury to decide, whether his omission to stop was negligent, but it cannot be held that such omission is negligence per se. Kellogg v. N. Y. C. & H. R. R. R. Co., 79 N. Y. 72; Wilcox v. Rome, Watertown & Ogdensburg R. R. Co., 39 Ib. 358 ; Massoth v. Delaware & Hudson Canal Co., 64 Ib. 524; Davis et al. v. N. Y. C. & H. R. R. Co., 47 Ib. 400; Thompson v. N. Y. C. & H. R. R. R. Co., 16 N. Y. State Rep. 869.
    II. The plaintiff, not seeing the horses of the car when he started to cross the track, was justified in relying upon the belief that the driver of the car would observe the ordinance requiring him to walk his horses around the curve. Newson v. The New York Central R. R. Co., 29 N. Y. 383. It was for the jury to say whether, under the particular circumstances of this case, the plaintiff was justified in believing that there was sufficient time for him to cross the track in safety, Jetter v. N. Y. & H. R. R. R. Co., 2 Abb. App. Dec. 458; Mentz v. Second Avenue R. R. Co., 3 Ib. 274; O’Donnell v. The N. Y. & Harlem R. R. Co., 8 Daly, 409; Hegan v. Eighth Avenue R. R. Co., 15 N. Y. 380.
    III. The ordinance prohibiting the riding or driving of horses around a corner of any street in the city of New York with greater speed than at the rate of three miles an hour, was properly admitted in evidence. Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488 (and cases cited in the opinion of the court).
   By the Court.—Ingraham, J.

The only exceptions in the case are to the denials of defendant’s motions to dismiss the complaint, made at the end of plaintiff’s testimony, and again at the end of the case. The case was submitted to the jury. No exception was taken to the charge.

The only question presented is, whether on the whole case there was evidence to justify the jury in finding that the defendant was negligent and that the plaintiff was free from contributory negligence.

There was evidence tending to show that the car was being driven at the rate of five or six miles an hour. Plaintiff swore that he was crossing the street; that he could not see the 6car until he got in the middle of the track, when he discovered that the car was on him; that he jumped over by a box of crabs and the car struck him and knocked him over on the crabs.

The defendant’s driver swore that he saw the plaintiff standing in front of a fish box in the street. He crossed as far as the front of the box and when the car got to him he stopped as if to get some crabs. The driver put the brakes on and just touched him; that the driver saw the plaintiff when he was a block away. There was nothing between the plaintiff and the car.

It does not appear that the driver attempted to stop the car until he was close to the plaintiff, or that there was anything to prevent him from stopping the car before the plaintiff was struck.

On this testimony the court was justified in submitting the question of the defendant’s negligence to the jury. It was for the jury to say whether it was prudent to drive the car at the rate of speed that they find the car was driven around the corner in such a locality, and to consider in that connection the ordinance of the city of New York, which prescribed, that any person upon turning a corner upon any street in the city of New York, shall not ride or drive any horse or horses at a greater speed than at the rate of three miles an hour.

I also think that there was evidence that would justify the jury in finding that the plaintiff was free from negligence that contributed to the injury.

The rule that has been laid down in regard to persons about to cross a track of a steam railroad, does not apply in equal strictness to a person about to cross a crowded street in a city which is used for a horse railroad. A person about to cross a city street has to protect himself against not only railroad cars, but also against wagons and trucks using the street, and while he is bound to be vigilant and cautious, I do not think it can be said to be contributory negligence, as matter of law, because he fails to see an approaching car.

It is for the jury to say whether, under all the circumstances, plaintiff was negligent.

Upon the whole case I think no error was committed, and that the judgment and order should be affirmed with costs.

Sedgwick, Ch. J., and Freedman, J., concurred.


author: By the Court.—Ingraham, J.,

text:
    THE WESTERN DISPENSARY OF THE CITY OF NEW YORK, Plaintiff v. THE MAYOR, ETC., OF THE CITY OF NEW YORK, Defendant.

      Taxes—Almshouse, what falls within scope of the term as used in subdivision 4, section 4, title 1, chapter 13, part 1, Revised Statutes.

    The plaintiff’s building, upon which taxes were imposed, was, during the period for which they were imposed, used either as a hospital for indigent sick, or as a dispensary for the relief of the poor who called there, and its work in all its departments was entirely gratuitous, nothing being exacted for medical attendance, food, clothing, lodging, or for any other thing or reason.

      Held, that such use constituted the building an almshouse within the meaning of the term as used in the act relating to taxation above referred to, and that it was exempt from taxation.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided January 7, 1889.

      Submission of controversy upon agreed facts, and the question presented is, whether the real estate of the plaintiff used for the purpose of its incorporation is exempt from taxation.
    The facts sufficiently appear in the opinion.

      Robert W. Gilbert, attorney and of counsel for plaintiff, argued:—
    I. The institution of plaintiff was, when the taxes were laid, an almshouse within the meaning of 1 R. S., (388,) sec. 4, subd. 4, and therefore exempt from taxation. “ Section 4. The following property shall' be exempt from taxation......4. Every poorhouse, almshouse, house of industry, and every house belonging to a company incorporated for the reformation of offenders, or to improve the moral condition of seamen, and the real and personal property used for such purposes belonging to or connected with the same.” Association for Colored Orphans v. Mayor &c., 104 N. Y. 581; People ex rel. Swiss Benevolent Soc. v. Cornmrs. of Taxes, 36 Hun, 311; N. Y. Infant Asylum v. Supervisors of Westchester Co., 31 Ib. 116. (a) The object and work of an institution, not its name, decide whether it is an almshouse within the meaning of the statute. A house for infant, blind or insane paupers would commonly be called an. asylum; for the aged or maimed, a home; for the hopelessly sick, a hospital for incurables. By its corporate name the plaintiff is denominated a dispensary. The Avork of all is the same, in that they each assume the support of a class of the poor, and thus relieve the state of a part of its burden. They are, therefore, all almshouses within the meaning of the statute, (b) The use of the basement as a “ dispensary ” does not change the character of the building as a place of support for the poor, for besides contributing valuable aid to the poor in itself, the dispensary is “ fairly incident ” to the general work of the institution. People ex rel. Seminary of Our Lady &c. v. Barber, 42 Hun, 27; aff’d, 106 N. Y. 669; People ex rel. Acad, of The Sacred Heart v. Commrs. of Taxes, 6 Ib. 109; People ex rel. St. John’s Coll. v. Commrs. of Taxes, 10 Ib. 246. (c) The interpretation of the word “ almshouse ” here asked is analogous to that already given to the words “ religious society,” as they occur in the same section (§ 4). Hebrew Free School v. Mayor, 4 Ib. 446; Young Men’s Christian Assoc, v. Mayor, 44 Ib. 102. And to the words “ Public Library.” People ex rel. Amer. Geographical Soc. v. Commrs. of Taxes, 11 Ib. 505.
    II. The rule that statutes of exemption are to be construed strictly does not apply in cases of this nature. People ex rel. Amer. Geog. Soc. v. Commrs. (supra); Association for Colored Orphans v. Mayor, 104 N. Y. 587, 588 ; People ex rel. Swiss Benev. Soc. v. Comrs., 36 Hun, 314.
    III. The property being exempt by law, the tax was illegal and void. Assoc, for Colored Orphans v. Mayor (supra); N. Y. Inft. Asy. v. Supervisors, 31 Hun, 116 ; Young Men’s Christian Assoc, v. Mayor, 44 Ib. 102 ; Hebrew Benev. & Orph. Asy. v. Mayor, 11 Ib. 116 ; Matter of N. Y. Catholic Protectory, 77 N. Y. 346; Hebrew Free School Assoc, v. Mayor, 4 Hun, 446. The omission to appear before the commissioner of taxes does not give validity to the assessment. Hebrew Free School Assoc, v. Mayor (supra).

    IV. The tax is a lien valid on its face, and requiring extraneous evidence to show its invalidity. It is, therefore, a cloud upon the title, and an action in this form, and for the relief asked is proper. Assoc, for Colored Orphans v. Mayor, 104 N. Y. 581; Young Men’s Christian Association v. Mayor, 44 Hun, 102; Hebrew Benev. & Orph. Asy. v. Mayor, 11 Ib. 116; Hebrew Free School Assoc, v. Mayor, 4 Ib. 446; Washington Heights M. E. Church v. Mayor, 20 Ib. 297.

      Henry R. Beekman, counsel to the corporation, for defendant, argued:—
    Is the Western Dispensary an almshouse within the meaning of the statutes ? The definition of the word “ almshouse,” approved and adopted by the courts in the two cases just cited1,.is that given by Webster, “a house appropriated for the use of the poor.” If this definition should be applied literally to the facts above submitted, there would be hardly room to doubt that the Western Dispensary was an almshouse, and as such was entitled to exemption during the period mentioned. But if regard be had rather to the facts of the two cases to which reference has been made, and if the decisions be read in the light of the facts, the inquiry will suggest itself, Does the exemption of the statute apply to any institution which has not for its object, or for one of its objects, the housing of the poor ? In the case of the Swiss Benevolent Society, 36 Hun, 311, and the Colored Orphans’ Case, 104 IV". Y. 581, the societies were held exempt from taxation on the ground that they were incorporated for and in fact provided for the housing of the poor.
    In the case now submitted the object of the corporation is stated to be “the gratuitous medical and surgical relief of the poor in the city of New York.” Does this involve and permit the housing of the poor and the supplying of food and clothing, as well as medical and surgical treatment ? And if so, do the facts proven constitute the plaintiff an almshouse ? While fully appreciating the beneficence of institutions organized for charity, and conducted, as the plaintiff appears to have' been, for the comfort of many thousands of the poor, neither the city authorities nor their legal adviser feel at liberty to extend the provisions of the law beyond their clear intent, even to promote an object worthy in itself and deserving of private sympathy and co-operation. For the statutes do not in terms exempt the real or personal estate of all charitable societies from the burden of taxation. The question is therefore submitted for the opinion of the court, with a view to obtaining a judicial interpretation of the statute, as well as a determination of the present controversy.
   By the Court.—Ingraham, J.,

Plaintiff is a corporation duly organized under the act of 1848 for the incorporation of benevolent, charitable, scientific and missionary societies, and the objects stated in the certificate of the plaintiff’s corporation are, the gratuitous medical and surgical relief of the poor of the city of New York.

That during the years for which the taxes claimed to be illegal were imposed, the building on the property, upon which the taxes were imposed, was entirely devoted to charitable purposes, either as a hospital for indigent sick or as a dispensary for the relief of the poor who called there, and the work of the plaintiff in all its departments was entirely gratuitous, no fee or return having been exacted for medical attendance, food, clothing, lodging or for any other thing or reason whatever.

I think the use of this property by the plaintiff, is that of an almshouse as defined by the court of appeals in the case of The Association for Colored Orphans v. The Mayor &c., 104 N. Y. 587, and that it was exempt on that ground from taxation.

I think, therefore, plaintiff is entitled to judgment declaring the property described exempt from taxation, and that said taxes are illegal and void, and directing the cancellation thereof upon the books and records of the defendant.

Sedgwick, Ch. J., and Freedman, J., concurred.


text:
    WILLIAM H. ALDEN, et al., Respondents v. WILLIAM P. EARLE, Appellant.

      Brokers—commissions not earned, in the absence of bad faith, unless they bring parties to prove an agreement. Evidence, insufficient to establish a bringing of the parties to an agreement.

    Plaintiffs are real estate brokers and brought this action for commissions on a leasing of real estate. Defendant being desirous of leasing a building of which he was the owner, employed a broker named Goodale, who was in charge of the building and had the keys and who caused to be affixed on the building a sign, that persons wishing to rent should apply to him. The plaintiffs knowing that the building was to lease, sent a party to look at it and afterwards one of the plaintiffs had an interview with defendant in respect to leasing to that party, in which he said to defendant,—“ The commission is one per cent on five years lease, to which defendant replied that is all right but I think I would not like to rent to that party because I do not like the business; ” and also said, “ I suppose about $11,000 would take the building to a good party on alease.” Afterwards plaintiffs on behalf of their party, made a definite offer to defendant for a five years lease from May 1, 1887. This offer was declined. Defendant demanded that rent should begin March 1st and said to plaintiffs, “if your parties will take the place from March 1st, I will let them have it on the terms they propose.” After this, on January 31st, plaintiffs renewed the former offer with the exception of making the rent begin April 15th instead of May 1st, saying that was the best offer their parties could make. Defendant being pressed • to give a definite answer to this offer wrote to plaintiffs declining the offer and ending his letter with “ the negotiation is now closed.”—About a week after this the parties, on whose behalf plaintiffs had been negotiating with defendant, opened negotiations through Mr. Goodale, the ' result of which was a lease to them on the terms offered by plaintiffs, except that the rent was to commence April 1st. There was no evidence of bad faith on the part of the defendant. The facts were undisputed.

      Held, (1) that plaintiffs had not earned commissions in as much as they had failed to bring the parties to an agreement. (2) That a direction of a verdict for plaintiffs was error.
    Before Sedgwick, Ch. J., and Ingraham, J.

      Decided January 7, 1889.

      Appeal from judgment entered on verdict of the jury, in favor of the plaintiffs, under the direction of the court.
    The facts sufficiently appear in the opinion and the head notes.

      Hamilton Odell, attorney and of counsel for appellant, argued:—
    The duty that a broker undertakes, the obligation he assumes as a condition of his right to demand commissions, is to bring the buyer and seller to an agreement. Sibbald v. Bethlehem Iron Co., 83 N. Y. 381; Wylie v. Marine Bank, 61 N. Y 417; Salter v. Kimball, 14 Week. Dig. 191; Jacobs v. Kolff, 2 Hilt. 133; White v. Twitchings, 26 Hun, 503; Satterthwaite v. Vreeland, 3 Hun, 162. Tested by the rules laid down in these cases the plaintiffs’ claim must fail. They were authorized to find a tenant for these premises at a specified rental and for a specified term. Sterne testified that the defendant said to him: “ If Merwin, Hulbert & Co. will take this place from March 1st, I will let them have it on the terms that they proposed.” Merwin, Hulbert & Co. refused to do this. Their first offer was for five years from the first of May. Their next and final offer was to let the rent commence on the 15th of April. This (the plaintiffs informed defendant) “ is their best offer, and they desire to hear' from us at once your acceptance or rejection, as they have several other places in view.” The defendant promptly rejected the offer, and notified the plaintiffs that “ the negotiation is now closed,” Hulbert asked the plaintiff Alden “if that was an end of the negotiation.” He said : “ There is a letter; it seems to have come to an end; that is all we can do for it.” Afterwards, Merwin, Hulbert & Co. opened negotiations for the same premises through another broker, which resulted in a lease more favorable to the defendant than that proposed by the “best offer” which the plaintiffs were able to procure.

      Simon Sterne, attorney and of counsel, and John K. Creevey of counsel, for respondents, on the questions considered in the opinion, argued:—
    I. Under the facts in the case at bar plaintiffs earned their commission by the introduction of a customer to defendant. It was not necessary that they should conduct the negotiations. It is only where a fixed price is set upon property that the broker must bring a customer ready to give that price. Where there is no fixed price, the broker’s commission is earned when he has brought this customer and employer together and they, upon negotiations between themselves, come to an agreement. Wyckoff v. Bliss, 12 Daly, 324; Lloyd v. Matthews, 51 N. Y. 124; Sussdorf v. Schmidt, 55 N. Y. 319. In the case at bar no fixed price was set upon the property as its rental value, nor definite time fixed. After considering the proposition made on behalf of Merwin, Hulbert & Co., defendant agreed to accept the firm, as tenants provided they would take the premises from March 1st instead of May 1st, as they had proposed. The final agreement was an exact compromise between these two propositions. This case, therefore, differs radically from the case of Wylie v. Marine National Bank, 61 N. Y., 415, and also from the case of Sibbald v. The Bethlehem Iron Co., 83 N. Y. 378.
    II. Plaintiffs were the only efficient procuring cause of the lease in question. They not only brought the premises in question to the attention of the customer, and brought owner and tenant together, but they conducted the negotiation and brought it to a successful issue. It cannot be claimed that the final words in defendant’s letter “ the negotiation is now closed” were anything more than one move in the negotiation. It is of the essence of such negotiations that each party should present a firm front and should strive to impress the other with the opinion that he will not yield. The negotiations were not, in fact, closed, and there is nothing in the words quoted indicating, even by implication, a termination of plaintiff’s employment. The most that could be claimed under any circumstances would be, that the suggestions made by Goodale aided plaintiffs’ efforts to procure the slight modification demanded of having the term commence April 1st, instead of April 15th. Every other item and provision of the contract had been procured through their sole effort. Glentworth v. Luther, 21 Barb. 147; Wyckoff v. Bliss, 12 Daly, 324; Lloyd v. Matthews, 51 N. Y. 124; Fox v. Byrnes, 52 N. Y. Super. Ct. 150; Skillman v. Mitchell, 2 Rob. 523; Lyon v. Mitchell, 36 N. Y. 235; Morgan v. Mason, 4 E. D. Smith, 436; Smith v. McGovern, 65 N. Y. 574.
   By the Court.—Ingraham, J.

The action is brought by the plaintiffs, real estate brokers, to recover commissions for renting certain premises of the' defendant.

The obligation that a broker assumes and that he must perform before he is entitled to commissions, is stated in Sibbald v. The Bethlehem Iron Co., 83 N. Y. 381. Finch, J.,.in delivering the opinion of the court in that case says, The duty he undertakes, the obligation he assumes as a condition of his right to demand commissions, is to bring the buyer and seller to an agreement.”

The court among other cases cited the case of Wylie v. The Marine National Bank, 61 N. Y. 415, and in speaking of that case, it is said, “ It was held that to entitle a broker to commissions, he must produce a purchaser ready and willing to enter into a contract on the employer’s terms. This implies and involves the agreement of buyer and seller and meeting of their minds produced by the agency of the broker; ” and at page 382 it is said, “ But in all cases, under all and varying forms of expression, the fundamental and correct doctrine is, that the duty assumed by the broker was to bring the minds of the buyer and seller to an agreement of sale and the price and terms on which it is to be made,' and until that is done his right to commissions does not accrue.”

Another principle established by that case is “ To such a contract as existed in the present case where no time for the continuance of the contract is fixed by its terms, either party is at liberty to terminate it, subject, only, to the ordinary requirements of good faith.”

Applying these principles to the facts of this case, it is clear that the plaintiffs had not performed the work that they were employed to do, the performance of which was necessary before they were entitled to compensation, as they had not effected the leasing of the premises before this authority was revoked.

There was no employment of the plaintiffs by the defendant to obtain a tenant for the premises. Another broker was in charge; had the keys of the building and had a sign on the building that persons wishing to rent should apply to him.

The plaintiffs sent Mr. Hulbert to look at the premises. He obtained admission to the property and had an interview with the defendant without disclosing the fact that he had been sent by the plaintiffs. Subsequently, plaintiffs wrote two letters to the defendant, asking him to call on them in regard to the property. Defendant, however, did not call, and several days afterwards one of the plaintiffs called at defendant’s house and had an interview with him. Subsequently another interview was had at which plaintiffs stated that the commission would fee ¡one per cent on the five years lease, to which defendant said “ that is all right.” Defendant then stated “ that eleven thousand dollars a year would take the building to a good party on a lease,” and plaintiff then, made an offer -on behalf of Mr. Hulbert of $11,000 for the first year, $11,500 for the second year and $12,000 for the three years thereafter. To that defendant said, “That looks very good. I will think it over and let you know.”

There were subsequent negotiations between Hulbert and the defendant, and several letters were written by plaintiffs to the defendant to which no answer was returned ; and on January 31, 1887, plaintiffs wrote a letter to the defendant in which they say “ After considerable work on our part, we have induced them again (Merwin, Hulbert and Co.) to say they will take your building, No. 26 West 23d Street, upon the terms proposed by them and let the rent commence on the 15th of April. Thip they say is their best offer and they desire to hear from us at once your acceptance or rejection as they have several other places in view; ” and in reply to that letter on the same day defendant wrote to plaintiffs, The proposition you make for Messrs. Merwin, Hulbert and Co. for my building 26 West 23d Street on the terms of five years lease, I most ■ respectfully decline. The negotiation is now closed.”

Up to this time it is evident that the plaintiffs had not performed their obligation: they had not procured a tenant on terms satisfactory to the defendant. At no time had the defendant appeared anxious to have anything to do with them, or encouraged them to proceed on his behalf; and although the evidence would justify a finding, that there was an obligation to pay them the commissions if they had procured a tenant who had agreed to his terms and was satisfactory to him, there certainly was nothing that was said or done that would prevent defendant at any time revoking the authority that the plaintiffs had and that he did.

The plaintiffs subsequently endeavored to obtain from Mr. Hulbert a more favorable offer and failed, and then apparently abandoned the negotiations and had no further connection with the property.

There is not the slightest evidence of had faith on behalf of the defendant: he made no further efforts to negotiate with Hulbert, or, so far as appears, to lease the property.

It does appear, however, that about ten'days afterwards Mr. Hulbert went to the broker who had charge of the property, made him a new offer for the property on more advantageous terms than the offer made by plaint-tiffs, which offer defendant subsequently accepted.

The efforts of plaintiffs had been unsuccessful; they failed to bring the defendant and the proposed lessee to an agreement; the negotiations were closed and as was said in Sibbald v. The Bethlehem Iron Co., supra, at page 387, they very plainly had acquired no right to the commissions for anything that might ,happen in the future, unless upon the solé and only ground that the defendant terminated the agency in bad faith and as a device to get the benefit of the plaintiffs’ labors without paying for them.

I think therefore the complaint should have been dismissed.

The judgment should be reversed and a new trial ordered.

Sedgwick, Ch. J., concurred.