text:
    BENJAMIN C. THORNAL, Plaintiff and Respondent, v. WILLIAM PITT, Defendant and Appellant.
    I. Contract—when not abandoned or rescinded so that a Party has no Right op Action.
    1. Broker to sell real estate.

    1. A. employed B., a real estate broker, to sell certain of his real estate on which there were various mortgages, one of them being held by B’s. wife. Some time after, B. not having as yet been able to get an offer which would cover the mortgages, A. put it in charge of C., a lawyer; C. thereupon saw B., and told him that as a sale of the property could not be consummated, and as B’s wife with others held mortgages amounting to §90,000 in all, that A. had employed him (C.) to take charge of the matter, and that he had come to see about obtaining a satisfaction of the mortgages, and that he wished to deal with B. as the agent of his wife and the other parties ; and C. repeatedly told B. that he no longer acted as broker in the matter, and that he had an adverse interest; and B. stated in reply that he represented the other parties entirely ; B. having all the time.continued his efforts to sell the property, and finally procured a purchaser for them ; this offer he communicated to C., who in turn communicated it to A., by whom it was accepted. The court Ipft it to the jury to determine whether B. (the plaintiff) had relinquished his commission, charging that an employment as agent for mortgagees was not inconsistent with an employment by the owner, and that the mere fact that the broker acted as agent for the mortgagees was not sufficient to show a relinquishment or an intention to relinquish the commissions.
    Held—
    1. A proper disposition of the case.
    2. That the statements made by 0. to B. did not discharge B. from, or put an end to, his employment by A.

      a. Because no such authority was vested by A. in 0.
    3. That there was no inconsistency between B’s. employment as agent for the mortgagees and his employment by the owner.
    II. —Presumptions. —Evidence.
    1. Silence of an agent, at the time of the consummation of a contract, as to this compensation.

      a. Such silence is not a circumstance to be weighed against the claim for compensation.
    HI.—Instrument.—Construction op.
    1. A broker’s commission in effecting a sale of real estate does not fall within a clause of an instrument executed to the owner of the property by the broker as agent for mortgages to wit:
    Before Monell, Curtis, and Sedgwick, JJ.

      Decided November 29, 1873.
    “ We agree to accept in full satisfaction of all claims of every nature whatsoever upon said lots.”
    1. A claim for broker’s commission is not a claim upon said lots.
    2. Oral evidence, effect of, on the contract.

    1. Evidence that at the time the instrument was drawn and executed the attorney of the owner told .the broker that to avoid any question about the owner’s being liable for anything more than the amount of the notes to be given, he wanted the agreement, and that in order to avoid any misunderstanding about this matter, the agreement should include every dollar the owner should have to pay in relation to the transaction ; that the broker after the-agreement was drawn read it over, but kept silent as to having any claim for commissions, is not sufficient to call on the court, to construe the written aoni/ract as covering a claim for commissions.

    Appeal from judgment and from an order denying a motion made on the minutes for a new trial.
    The plaintiff sues to recover commissions for services as broker in selling twenty lots o.f land in the city of New York for the price of $85,000, and which services are alleged to have been rendered defendant between January 4th and October 19th, 1869.
    The answer states that the plaintiff was the agent of other parties in respect to the transactions mentioned in the complaint, and denies that he ivas employed by, or acting for, or on behalf of, the defendant. There was a verdict of $993.79 for the plaintiff, and the defendant appeals from the judgment.
    It appears from the evidence that in the early part of January, 1869, the defendant employed the plaintiff to sell for him the lots in question. The plaintiff procured an offer of $85,000 for the property in the September following, which the defendant accepted, and conveyed it accordingly. The premises were subject.to a first mortgage of $65,000, and to other mortgages subsequent to sundry persons amounting to $25,000, making the mortgage liens in all $90,000. The plaintiff’s wife held one of these latter, being a mortgage to secure $6,500. As the price paid for the property was less than the amount of the mortgage upon it, the defendant, in order to carryyout the sale, made good the deficiency by giving his notes with his father’s endorsement to secure it with other claims upon the lots above the $85,000, payable in fifteen months, which were paid at maturity.”
    The defendant testifies that he employed the plaintiff to sell the property probably about the month of October, 1868; that it was understood that he was to pay him a commission, and that in the month of May following he gave the property in charge to Mr. Bitch, his attorney at law, by whom, about the month of August thereafter it was communicated to him, there was a purchaser.
    The plaintiff testifies that he communicated the proposition to pay $85,000 for the lots to Mr. Bitch, as the defendant’s agent, and Mr. Bitch testifies he communicated it to the defendant. Thus far there is nothing to sustain the defence, but Mr. Bitch testifies that on the 22d of June, 1869, be saw the plaintiff and told him that as a sale of the property could not be consummated, and as the plaintiff’s wife with others held mortgages amounting to $90,000 in all, that the defendant had employed him to take charge of the matter, and that he had come to see Mm about obtaining a satisfaction of these mortgages and possession of the bonds ; that the matter was entirely in his hands now, and that he wished to deal with the plaintiff as the agent of his wife and the other parties.
    The witness states there were repeated conversations with plaintiff in respect to this matter afterwards, and also that he repeatedly stated to the plaintiff that he no longer acted as broker in this matter; that b.e bad an adverse interest, and that the plaintiff stated to the witness' in substance that he represented the other parties entirely, and that these conversations were principally within the two or three days prior to the making of the contract and of the agreements. .
    At the time of the execution of the contract for the purchase of the lots, the plaintiff, as agent for some of the mortgagees and-one of the mortgagees in person, executed the following agreement:
    “In consideration of one dollar to us in hand paid by William Pitt, the receipt whereof is hereby acknowledged, and of the sale of twenty certain lots on Eighty-third and Eighty-fourth streets sold by said Pitt for $85,000, by contract of this date. We hereby agree to and with said Pitt to accept and receive, in full satisfaction and discharge of all claims of every nature whatsoever against said Pitt upon said lots, including the interest accrued upon all mortgages upon the premises by him agreed to be conveyed, such taxes and assessments as are or may be liens upon the premises, the expenses of said conveyance, and the deficiency between the said sum of $85,000 and the entire amount of the mortgages upon said premises (to wit, $5,000), the notes of said William Pitt endorsed by Charles Pitt, bearing date, October 1, 1869, and payable in fifteen months from said date with interest. Bonds and mortgages to the amount of $25,000 to be surrendered to said Pitt; said notes to be delivered to us or to Mr. Thornal, our agent, and the conveyances required by the above contract to be delivered to the purchaser at the same time and a¡3 parts of the same transaction.
    Said notés to be four in number, each for an equal amount, to wit: $2,004.79.
    It is understood that all amounts payable to said Pitt on account of his contract above referred, above the mortgages for $65,000, are payable to us.
    B. C. THORNAL. [Seal]

    JOHN EMMONS. [Seal] ”
    This agreement was executed at the request of defendant’ s attorney, who stated to plaintiff that to avoid any questions about Mr. Pitt being liable for anything more than the amount of the notes he was about to give, he wanted an agreement drawn, and that to avoid any misunderstanding about the matter, he wanted the agreement to include every dollar that Mr. Pitt should have to pay in relation to this transaction. The agreement was then drawn and read over by the plaintiff, who signed, making no claim for commissions.
    The following requests to charge were made by defendant’s counsel, refused by the court, and exceptions taken:
    1st. That if the plaintiff represented a hostile interest, he cannot claim as the broker of the defendant.
    (The court refused so to charge, and the defendant excepted.)
    2d. That the broker is not entitled to represent adverse interests.
    (The court refused so to charge, and the defendant excepted.)
    3d. That if the contract was signed with the understanding that all the charges, including this brokerage or commissions, were included in the amount to be paid by Mr. Pitt, then the plaintiff cannot recover.
    (The court refused so to charge, and the defendant excepted.)
    4th. That the silence of the plaintiff at the time of the consummation of the sale on the subject of brokerage is a circumstance to be weighed against his claim.
    (The court refused so to charge, and the defendant excepted.)

      5th. That the agreement "being signed "by plaintiff individually estops him from claiming commissions.
    (The court refused so to charge, and the defendant excepted.)
    6th. That it is the province of the jury to determine whether Mr. Hitch terminated the employment of plaintiff as defendant’s "broker in June, 1869.
    (The court refused so to charge, and the defendant excepted.)
    7th. That if the employment of the plaintiff was so terminated, his subsequent action, if without the request or employment of the defendant, created no liability "upon the defendant, however beneficial such action might have been to defendant.
    (The court refused so to charge, and the defendant excepted.)
    The court charged the jury as follows :
    “The evidence in this case is sufficient to show, I think, that the plaintiff was employed by the defendant to find a purchaser for this property, and that he found a purchaser; that the defendant accepted of him and entered into a contract with him, and, pursuant to its terms, executed a deed conveying' the property. The plaintiff earned his commission. The sole question for you to determine is whether he relinquished his commission.
    “The mere fact that he acted as agent for the holders of these mortgages "is not sufficient to show that he relinquished or intended to relinquish his commission for the sale. An employment as agent for the mortgagee is in no way inconsistent with an employment to find a purchaser for the property.
    “ Mr. Rich, however, states on the stand that there was some conversation between him and the plaintiff at the time this contract was entered into on behalf of the mortgagees, which the defendant’s counsel claims was ■sufficient to amount to the relinquishment, on the part of the plaintiff, of his claim for a commission. He claims also that it was relinquished in the contract itself which was signed "by the plaintiff. I leave that question to you. If you find that he did relinquish his commission, the defendant will he entitled to a verdict. If you do not find that, your verdict will he for the plaintiff for $993.79.
    (Defendant’s counsel excepts.)
    The defendant’s counsel excepted to that part of the judge’s charge to the jury wherein he instructed the jury that the evidence was sufficient to show that the plaintiff was employed hy the defendant to find a purchaser , for this property; that he found a purchaser, and that the defendant accepted of him, and to every part thereof.
    The defendant’s counsel also excepted to that part of' the judges charge to the jury wherein he instructed the' jury that the plaintiff earned his commission, and that the sole question for the jury to determine was whether he relinquished his commission, and to every part thereof.
    The defendant’s counsel also excepted to that part of the judge’s charge to the jury wherein he instructed the jury that the mere fact that the plaintiff acted as agent for the holders of these mortgages is not sufficient to show that he relinquished or intended to relinquish his commissions for the sale; that an employment as an agent for the mortgagees was in no way inconsistent with an employment to find a purchaser for the property, and to every part thereof.
    The defendant’s counsel also excepted to that part of the judge’s charge to the jury wherein he instructed the jury that he left to them the question whether the plaintiff’s claim for commission was relinquished in the contract itself which was signed hy the plaintiff, and to every part thereof.
    The jury rendered a verdict for plaintiff. Defendant’s counsel moved for a new trial on the judge’s minutes, which was denied. The defendant appeals from the judgment entered on the Verdict and from the order denying the motion for a new trial.

      Arnoux, Ritch & Woodford, attorneys, and Wm. Henry Arnoux, of counsel for appellant, urged :
    I. The. relation of a broker to his principal is such that the law will not permit him to receive compensation from two principals representing diverse interests in the same transaction, and if he is paid for his services by one principal, he ceases to have any further claim against any other person in relation to such transaction (Watkins v. Corrsall, 1 E. D. Smith, 65; Vanderpoel v. Kearns, 2 E. D. Smith, 170; Dunlop v. Richards, 2 E. D. Smith, 181; Pagsley v. Murray, 4 E. D. Smith, 245).
    II. The court erred in submitting to the jury that they were to determine the effect of defendant’s Exhibit No. 1, and should have charged the jury as matter of law that the execution under seal of that instrument by plaintiff estopped him from claiming any commissions whatever.
    But if that were not so, then the court should have charged the jury that if he signed this instrument with the understanding that his brokerage was included, in the amount to be paid by Mr. Pitt, then he could not recover.
    1st. The rights of the parties are to be determined by the language of the instrument, which is always a question-of law (Westcofct v. Thompson, 18 H. Y. 363, 367). 2d. The language of the instrument covered these commissions.
    ITT. The court also erred in refusing to charge the jury that it was their province to determine, as matter of fact, whether plaintiff’s agency had been terminated before negotiations for this sale were commenced, and that plaintiff could not recover for volunteer services.

      1st. It was an issue of fact which was material (Redfield v. Tegg, 38 N. Y. 212).
    The court, therefore, had no right to pass upon it, but was bound to submit it to the jury (Lloyd v. Matthews, 51 N. Y. 124, 129).
    2d. The plaintiff could not recover for volunteer services (Bartholomew v. Jackson, 20 John. 28; Sheldon v. Sherman, 42 N. Y. 484, 489; see Pierce v. Thomas, 4 E. D. Smith, 354).

      Chase, Bestow & Holt, attorneys, and Ph. Chase, of counsel for respondent, urged :
    1st. As to the first and second requests to charge, the refusal of the chief justice was correct.
    There were no facts in the case showing that the plaintiff represented any interests adverse or hostile to the defendant (3 Gra. & Wat. on New Trials, 828).
    Besides, the proposition embraced in these two requests is not law. The agent may represent hostile or adverse interests, as when the principal consents that his agent may represent hostile or adverse interests (Redfield v. Tegg, 38 N. Y. 212.)
    2d. As to the third request, the defendant was not entitled thereto.
    1st. He had set up no such defence in his answer. The defendant did not plead accord and satisfaction, or payment. These defences must be specifically averred, and if not, testimony to prove them is inadmissible (McKyring v. Bull, 16 N. Y. 297; Morrell v. Irving Fire Insurance Co., 33 N. Y. 443).
    2d. The chief justice did in fact charge substantially as requested by counsel.
    3d. The chief justice did not err in his refusal of the fourth request.
    1st. It did not appear that the plaintiff was present at the consummation of the sale, that is, when the title passed.
    2d. If the counsel meant when the agreement was made, his request has no force. The plaintiff’s claim for commissions was not then in question ; it was not a part of the subject-matter of the agreement; it was not a claim between the same parties.
    4th. The chief justice did not err in his refusal of the- , fifth request. The agreement was not intended to include the plaintiff’s claim for commissions, and did not.
    The maxim “ Exclusio est unius est exclusio alterius,” the express mention of one thing implies the exclusion of another, applies.
    When parties enter into express written stipulations, the presumption is that they have expressed all the conditions by which they intend to be bound (Broom’s Legal Maxims, 481).
    5th. The chief justice did not err- in refusing the sixth request. It is the -province of the jury to determine facts, and of the court the legal effect of facts.
    Whether the legal effect of Mr. Bitch’s acts in June, 1863, were to terminate the plaintiff’s employment or not, it was not disputed that the plaintiff did thereafter procure a purchaser satisfactory to the defendant.
    6th. The chief justice did not err in refusing the seventh request. If the defendant ratified the plaintiff’s acts, or accepted and adopted an offer obtained by him, he was liable for the plaintiff’s commissions, even if the previous employment had terminated without a further request or employment, especially considering the facts of the former employment and efforts of the plaintiff to sell (Stillman v. Mitchel, 2 Robt. 523; Holly v. Gosling, 3 E. D. Smith, 262).
   By the Court.—Curtis, J.

It came very properly within the scope of Mr. Bitch’s professional duties to take measures to liberate the property from the embarrassments arising from these heavy liens, and to prepare the way so that a sale could be consummated ; and ■such appears to have been the nature of his employment by the defendant. The evidence shows no instructions or authority from the defendant to discharge the plaintiff from his employment as the defendant’s broker to sell the property, or even to interfere with such employment in any way. The witness was not a real estate broker or agent. He told the plaintiff he wished to deal with him as the agent of the parties who held the mortgages. The plaintiff appears to have acquiesced in this, and to have represented all the other parties, and to have aided and negotiated in carrying out the arrangement to make the property marketable. The witness states that he told the plaintiff repeatedly, and principally about the time of the sale, that he, the plaintiff, acted no longer in this matter as broker—that he had an adverse interest. But the difficulty is that he seems to have given this notice to the plaintiff without any authority to do so from the defendant; that it was never acquiesced in by the plaintiff, or acted upon by the defendant; that the witness was himself the medium of communication through which the defendant was notified of the result of the plaintiff’s endeavors to find a purchaser, and whose acts in that behalf were accepted and adopted by the defendant without hesitation or question. There is nothing in the conversations with the plaintiff testified to by Mr. Bitch that is inconsistent with the idea that the plaintiff endeavored to facilitate what Mr. Bitch had in view professionally in respect to the liens upon the property, and at the same time continued in good faith rendering his services .as a broker to the defendant to bring about the sale of the premises ultimately effected by him as such.

If the agreement with the defendant is referred to, it will be seen that there is nothing in it that releases the ■defendant from an obligation to pay for the services of Ms broker. That agreement upon its face is limited to the claims or liens upon the lots, except such as are specified in it, and none of those so specified relate to brokerages, nor can it be contended that the latter are in any way claims upon the lots. There is no evidence in the case that shows that the plaintiff intended to render his services as a broker gratuitously to the defendant, or that he relinquished his claim for what might be or become due to him for such services, or that he ceased to be the broker of the defendant to effect such sale from the time the defendant testifies he employed him until he carried through the sale. Nor does it appear that the defendant at any time discharged him from such employment or authorized any one else to do so in his behalf. The plaintiff’s testimony that Mr. Bitch offered to pay him is not controverted by Mr. Bitch. The latter states that he did not offer the plaintiff an extra commission if he would sell this property for an extra sum. This fails to contradict the plaintiff’s statement.

If these views as to the evidence are correct, they dispose of most of the defendant’s exceptions.

There was no evidence that the plaintiff represented an adverse or hostile interest to the defendant, or that Mr. Bitch terminated the plaintiff’s employment as defendant’s broker in June, 1869. On the contrary, the interests of the mortgagees represented by plaintiff were in harmony with the object the defendant had in view, and the plaintiff representing them was auxiliary to its being carried into effect. There was nothing to submit to the jury in respect to Mr. Bitch’s terminating the plaintiff’s employment, as there was no evidence showing it; and if there had been, it would not have availed against the subsequent course of Mr. Bitch and the defendant in accepting, adopting, and ratifying the plaintiff s acts, and delivering him the contract to consummate the sale.

It affords no ground for a new trial that the court dedined to charge the jury on matters in respect to which there was no evidence.

hieither was there error in the refusal to instruct the jury that the silence of the plaintiff at the time of the consummation of the sale on the subject of brokerage was a circumstance to be weighed against his claim. Agents, including brokers, like professional men, are required to exercise their judgment and knowledge as may be most advantageous to those who employ them, so far as is consistent with justice and the welfare of society. In the highest and best exercise of what is thus required and expected of them, embarrassments might arise if they were at the same instant obliged to give notice of their claim for compensation. It would be an unwise as well as a harsh rule of law, that silence in respect to remuneration at such a moment was to be weighed against them. On the contrary, the policy of the law, and the usages of society, have rather tended to regulate and determine their compensation, than to leave it a subject of clamor and contention.

There was no error in the refusal of the court to charge the jury that if the contract was signed with the understanding that all the charges, including the brokerages or commissions, were included in the amount to be paid by defendant, then the plaintiff cannot recover. It neither appeared from the contract itself nor other evidence that plaintiff’s brokerage was so included, and there was no defence of accord and satisfaction, or payment set up in the answer. Under such circumstances, the failure to charge as requested constitutes no reason for a new trial. The court instructed the jury to find whether there was a relinquishment or not by the plaintiff of the commissions, calling their attention to the conversation which Mr. Hitch stated he had with the plaintiff, and which was claimed on the part of the plaintiff to amount to a relinquishment, and also calling their attention in this connection to the contract signed by the plaintiff, so that the defendant appears to have had all he asked for substantially submitted to and passed upon by the jury.

There were exceptions taken by the defendant to the admission of testimony on the trial, but the rulings of the court seem to be correct. To only one of these was attention called upon the argument. The testimony in that instance was properly held to be irrelevant and immaterial, but was not ultimately excluded.

The judgment appealed from should be affirmed, with costs.

Monell and Sedgwick, JJ., concurred.


source: Caselaw Access Project

author: By the Court.—Freedman, J.

license: Public Domain

text:
    JACOB STAPENHORST et al., Plaintiffs and Respondents, v. THE AMERICAN MANUFACTURING COMPANY, Defendant and Appellant.
    1. Occupants op a House.—Relative Rights, Duties, and Liabilities.
    1. Maxim—Bic utere tuo ut aiienvm non laedas.

      a. One occupying an upper story must use in the conduct of his business therein such care, caution, attention, and discretion as an ordinary prudent man would put forth to prevent injury being sustained by the occupant below.
    5. The occupant below is bound to use similar diligence to guard against injury.
    1. Consequently, if the occupant below uses the proper degree of diligence, but the occupant above does not exercise the proper care, and injury thereby results to the occupant below, a cause of action for such injury accrues to the occupant below against the occupant above by reason of his negligent omission.
    1. This, although there was no positive intention on the part of the occupant above to injure the occupant below.

      a. Consequently, when the defendant occupied the upper stories of a building for the purpose of a manuf acturing business in which oil was used, and the floor immediately below was occupied by a machinist, and the floor below that was occupied by plaintiffs, who were defendant’s lessees, for the purpose of manufacturing mustard, and the defendant negligently permitted oil to leak through the floor and drip on iron stored in the floor below, whence it, impregnated with iron filings or particles of iron finely pulverized, dripped into plaintiff’s floor, and so damaged the mustard in iirocess of manufacture by plaintiff as to render it useless.
    " Held,
    THAT DEFENDANT "WAS LIABLE.
    1. Landlord and tenant. This relation is hut one, and a comparatively unimportant circumstance in determining the question of negligence under such circumstances, and such a case cannot he disposed of on the simple theory that as between landlord and tenant, the landlord is not hound to repair without express covenant.
    H. Damages.—Injury to Business.
    1. Evidence, what not admissible.

      a. Proof that during the period in the year preceding the one in which the damage was sustained, corresponding to the period during which the damage was sustained, the plaintiffs had a certain number of customers from whom they realized a profit of not less than a certain sum per 'month, and which subsequently were all lost, is inadmissible,

    1. Where the complaint contains neither the names of the customers so lost, nor an averment of loss of customers as an item of special damage in general terms.
    3. When the action is based on a negligent omission, such proof is inadmissible, as too remote.

      b. Admission of such Evidence, when material Error.
    1. It is material when the judge charges the jury that in the event of their finding certain facts, they should find from the evidence, in addition to other things, what dmnage was done to the business.

    3. Measwre of, in an action based on a negligent omission.

    1. Only such damages as spring naturally from the negligent omission, unaffected by extraneous causes, can be recovered.
    III. Pleading. —Complaint.
    1. Averment in, in actions based on negligence, what requisite to permit the introduction of proof as to damage to business,

      a. An averment giving the names of the customers whose business has been lost, or at least an averment of the loss of customers %s an. item of special damage in general terms.

      Before Barbour, Ch. J., Monell and Freedman, JJ.

      Decided November 29, 1873.
    Appeal from judgment entered upon the verdict of a jury in favor of the plaintiffs for $1,759.59.
    The facts sufficiently appear in the opinion.

      Arnoux, Ritch & Woodford, attorneys, and Wm. Henry Arnoux, of counsel for appellant, urged :
    I. The doctrine of caveat emptor demands that a tenant hiring a portion of a manufacturing establishment shall, at his peril, ascertain the established method of using the building and the physical conditions resulting therefrom, to the same extent that it does in respect to the permitted and unarfested action of the elements upon the premises and the injuries that may result therefrom.
    1st. Under a contract for hiring, there is no implied covenant that the premises are tenantable, the common law imposing upon the tenant the duty of ascertaining that the same are suitable for his occupation and use (O’Brien v. Capwell, 59 Barb. 497; Cleves v. Willoughby, 7 Hill, 83; McGlashan v. Tallmadge, 37 Barb. 313; Howard v. Doolittle, 3 Duer, 464; Izon v. Groton, 5 Bing., N. C. 501; Arden v. Pullen, 10 M. & W. 321; Anwortk v. Johnson, 5 C. & P. 239 ; Torriana v. Young, 6 C. & P. 8; N. Y. Civil Code, § 990 and note).
    2d. If this proposition were not true, then the converse must be true, for there is no middle course, that the rule in letting is caveat venditor. This would make the landlord a warrantor and insurer of the premises, and the statement of it bears its own refutation.
    The true rule is thus laid down in a case in our own State:
    “A man may make a proper use of his own, and others must take notice of his right to do so ” (Hay v. Cohoes Co., 3 Barb. 50).

      And the only exception that there seems to be to the rule is the case of a furnished house or furnished apartments (Smith v. Marrable, 11 M. & W. 5).
    This exception seems to be based upon the doctrine of latent defects, according to the argument of counsel and the observations of one of the barons in a later case (Sutton v. Temple, 12 M. & W. 52).

      3d. The court, in charging the jury, declared that the defendants’ liability for the oil was the same as if the landlord suffered the roof to leak, and the water, percolating downward, carried with it the iron complained of to the plaintiff’s damage. To this proposition we assent, but say that in neither case could the landlord be held liable.
    Nor is there any distinction in principle or in decisions between effects resulting from natural causes or those produced by artificial causes (Westlake v. De Graw, 25 Wend. 669 ; Sutton v. Temple, 12 M. & W. 52; Foster v. Peyser, 63 Mass. 242; Dutton v. Grerrish, 63 Mass. 89 ; Welles v. Castles, 3 Gray, 324).
    The doctrine of contributive negligence, which is in this case synonymous with caveat erwptor, is equally fatal to the plaintiff’s claim.
    That the party injured must not, by his own negligence, have contributed to the injury, must be considered a legal postulate (Johnson v. Hudson River R. R. 20 N. Y. 69).
    II. As, according to plaintiffs’ testimony, the iron was the sole cause of the injury complained of, and the defendants had established the use of the building prior to the tenancy of First & Pryibil, who, with full knowledge of the dripping of the oil, so placed, their iron that thereby alone the iron particles were conveyed into plaintiff’s mills, the defendants were the remote and not the proximate cause of the damage, and consequently was not liable therefor.
    1st. The cases all agree in this proposition, that negligence must Tbe proximate and not remote (Austin v. New Jersey Stbt. Co., 43 N. Y. 82).
    2d. An injury is considered immediate when the act complained of itself, and not merely the consequences of that act, occasions the injury (1 Chitty's Pleading, 117; Approved Scott v. Bay, 3 Maryland, 443 ; Panton v. Norton, 18 Hill, 500; Ryan v. N. Y. O. R. R., 35 N. Y. 210; Webb v. Rome W. & O. R. R. 49 N. Y. 420).
    III. Under any circumstances the judgment should be reversed for the erroneous instruction given to the jury by the court, that they might give to plaintiff compensation for damage done to the good-will of plaintiff’ s business.
    1st. The Court of Appeals in this State have of late held that there are no degrees in neglignce in harmony with English and national decisions (Filer v. N. Y. C. R. R. 49 N. Y. 47, 51; Perkins v. Do., 24 N. Y. 196, 206; Wells v. Do. 24 N. Y 181; Smith v. Do., 24 N. Y. 222, 241; Hinton v. Dibbin, 2 Q. B. 646, 661; Grill v. Iron Screw C. Co. L. R., 1 C. P. 600; Wilson v. Brett, 11 M. & W. 113; New World v. King, 19 How. U. S. 474; 14 U. S. 483.
    Recently the judges of several English courts have expressed their disapprobation of attempts to fix the degrees of diligence by legal definitions, and have complained of the impracticability of applying them (Wylde v. Pickford, 8 Meeson c§ West, 443, 461, 462; Hinton v. Dibbon, 22 B. 646, 651). It must be confessed that the difficulty in defining gross negligence, which is apparent in such cases as Tracy v. Wood (3 Mason, 132), Foster v. Essex Bank (17 Mass. 479), would be sufficient to justify these complaints. It may be added that some of the ablest commentators on the Roman Law and on the Civil Code of France have wholly re-' pudiated this theory of three degrees of diligence as unfounded in principles of natural justice, useless in practice, and presenting inextricable embarrassments and difficulties (Toulliers Droit Civil, Vol. 6, p. 239, 11 Vol. p. 203; Makeldey Man. Du Droit Domain, 191).
    In Hurton v. Dibbin, Lord Denman said: “It may well be doubted whether between gross negligence or negligence merely any intelligible distinction exists.”
    Under these decisions, the Court erred in charging the jury that great and continuous negligence was equivalent to gross negligence.
    2d. If there were such negligence, it did not alter the rule xof damages, and damage to the good-will is too remote to be considered.
    Thus, where an act caused such injury that plaintiffs were forced "to make an assignment, it was held that' that was not the legitimate consequence of such act (Donnell v. Jones, 13 Ala. 490).
    Where a telegraph company neglected to send a despatch, commissions on sales that would otherwise have been effected, were1 held to be too remote damages (Landsberger v. Telegraph Co., 32 Barb. 530).
    Where customers refused to purchase anything from plaintiffs’ establishment, in consequence of the bad repute caused by defendants having sold plaintiffs diseased meat, held that such loss was not the legal and natural consequences of the act (Crain v. Petrie, 6 Hill, 522.)
    IY.—1st. The evidence was improperly admitted respecting the leaking of oil of vitriol the year previous to this alleged leakage of oil, and of the leaking of water during that year.
    Its direct tendency was to prejudice the mind of the jury against the defendants. It had not the slightest relevancy to the case before the court. It directly appeared that the defendants had settled for the water, and that no claim whatever existed on account thereof.
    2d. The evidence about the business of the plaintiffs between January and June, 1868, was improperly admitted.
    It formed no basis whatever for determining the profit of the plaintiffs in 1869, or the damage to the good-will of their business.

      W. M. Powell, attorney, and Moody B. Smith, of counsel for respondents, urged among other things :
    The instruction of the court to the jury “that in 11 case they found the defendant was guilty of gross neg- ‘ ‘ ligence, it was liable for damages to business and loss “ of time,” is correct.
    The court might have gone much farther and instructed the jury that if they found, gross negligence they Avere not restricted to direct and immediate damages, but could find all damage distinctly and clearly proven and capable -of computation, however remote. The following cases sustain this doctrine : Scott v. Shepherd, 2 W. Black, 892 (the Squib case); Gruille v. Swan, 19 Johns R. 381 (Balloon case); Vandeburg v. Knox, 4 Denio, 464 ; Chandler v. Allison, 10 Mich. 460 ; Jolly v. Single, 16th Wis. 280; Fults v. Wykoff, 25 Ind. 321; Simmons v. Brown, 5 R. I. 299 ; Dubois v. Glaub, 52 Penn. 238 ; Hanover R. R. Co. v. Coyle, 55 Penn. 395 ; Sewall’s Falls Bridge v. Fisk, 3 Fost. (N. H.) 171; Sexton v. Bacon, 31 Vt. 540 ; Sedgwick on Damages, p. 85.
    The charge of the judge that “whether the defendant intended or knew of the injury is immaterial as “regards immediate damages,” is correct. (Sedgwide on Damages, 455; Rockwell v. Third Avenue R. R. Co., General Term, 1st department.
   By the Court.—Freedman, J.

The complaint alleged that the defendant let and rented to plaintiffs the first floor and basement of certain premises situate on the corner of Mott and Hester Streets in the city of Hew York ; that the plaintiffs occupied the demised premises for the manufacture of French and German mustard; that during the same time the defendant occupied the upper stories of said premises for manufacturing-umbrella frames; that from the first of May, 1868, to June, 1869, oil impregnated with iron filings, or particles of iron finely pulverized, leaked, through the negligence of the defendant, through from defendant’s premises into plaintiff’s mustard mills ; that in consequence thereof great damage has been done to plaintiff’s business ; that a great deal of their mustard has been ruined thereby ; that the character and reputation of their manufactured mustard has been almost ruined, and that their business has been greatly injured thereby; that the plaintiffs have been damaged in the premises in the sum of $25,000, and that said damage has been done without any negligence on the part of the plaintiffs.

The gravamen of the charge, therefore, was negligence on the part of the defendant in carrying on its business operations in that part of the premises occupied for that purpose. Such negligence is not a positive element, but it consisted, if it existed, in a mere omission to do something which the law required under the circumstances, or, in other words, in a want of diligence without positive intention to injure the plaintiffs. The law required that in carrying on its operations the defendant should use due diligence to prevent injury to the plaintiffs, that is to say, the defendant was bound to use the same amount of care, caution, attention, and discretion as the ordinary prudent man would put forth under precisely the same circumstances. The plaintiffs were bound to use similar diligence to guard against injury. The want or omission on either side, of such care, caution, attention, or discretion constituted negligence. Thus, the duty of such diligence, etc., etc., and consequently the negligence, was relative on both sides, that is, relative to the actual situation of affairs and the means of knowledge of the parties. These questions, therefore, had to he determined upon all the circumstances of the case, of which the relation of landlord and tenant was hut one, and a comparatively unimportant one ; and in determining them it became necessary for the learned judge below, and for the jury, if the case was rightfully sent to them, to place themselves in the position of the persons whose acts had to be judged. The evidence given upon the trial, when considered in the light of these principles, was not of such a character as would have authorized the court to determine the diligence or negligence of either side as matter of law, and consequently the questions relating thereto on both sides had to be submitted to the jury as questions of fact. For this reason defendant’s exception to the refusal of the court to dismiss the complaint is clearly untenable. The case could not be disposed of on the simple theory that as between landlord and "tenant the landlord is not bound to repair without express covenant.

A more serious question is presented by the exceptions relating to the reception of certain evidence and to certain portions of the charge that bear upon the question of damages. Evidence had been given that plaintiff’s business extended to the principal cities of the United States, and of the manner in which it was conducted ; that in March or April, 1869, mustard commenced to be returned by plaintiff’s customers on the ground of its bad quality, and that in the course of some further time all the mustard manufactured between the 1st of January and the month of June, 1869, was thus returned ; that on investigation the said mustard was found to be utterly worthless, and that it had to be thrown away ; that thereupon numerous attempts were made by plaintiffs to discover the cause, and that for that purpose and at great expense, the mills were frequently stopped, cleaned up, and thoroughly inspected, and chemical analyses were made of the mustard, and of the materials that entered into its manufacture, and that finally it was discovered that oil impregnated with iron was leaking from defendants’ premises into plaintiffs’mustard mills, and to all appearances had been thus leaking for some time, and that this had worked the injury. Evidence had also been given of the quantity of mustard thus lost, ofits market value in a sound condition, and of the expenses incurred by plaintiffs in discovering the cause of the difficulty and in obviating the injurious effects produced. Then it happened that Julius Wolff, one of the plaintiffs, on being recalled, was allowed to testify against defendant’s objection and exception, that from the first of January to the first of June of the preceding year plaintiffs had about two hundred customers, from whom they realized a profit of not less than one thousand dollars per month, and which subsequently were all lost. This ruling was erroneous for several reasons. The complaint did not allege the names of said customers. It did not even contain an averment of loss of customers as an item of special damage in general terms, bio such loss could therefore be proven (Hallock v. Miller, 2 Barb. 630 ; Tobias v. Harland, 4 Wend. 537). The evidence already given showed affirmatively that-no damage had occurred prior to 1869, and consequently the testimony objected to related to a period too remote in any aspect of the case ; for the damage complained of not being the result of intention, but of negligence, the law holds the defendant responsible only for such results as spring naturally, i. e., according to the usual course of things, from defendant’s negligent acts, unaffected by extraneous causes. Upon any such result the said testimony had no legitimate bearing, and that it may have prejudiced the defendant becomes apparent when it is considered in connection with the charge. The jury were instructed that in case they found that the negligence of the defendant was not occasional, but general and continuous—in the language of the law, gross—they should in addition to the market value of the goods actually-spoiled, and the interest thereon, find from the evidence what damage was done to the business of the plaintiffs, and should also give them compensation for the loss of time and for the trouble that they were put to. Plaintiffs’ counsel requested the court to charge further that if the defendant was guilty of gross or of reckless negligence, it is liable for the injury to the good-will of plaintiffs’ business. This proposition the court submitted to the jury by saying: “I charge you that in effect, except I prefer not to use the words good-will of the business,’ but to say the damage done to the business, as it has been given in evidence before you.” This was equivalent to saying that the jury had a right to consider the testimony objected to in determining the aggregate amount of damages.

The error committed in the reception of said testimony cannot, therefore, be disregarded ; and this being so, it is unnecessary to express an opinion on the questions raised by the remaining exceptions.

The judgment appealed from is reversed, and a new trial ordered, with costs to appellant to abide the event.

Barbour, Oh. J., .and Monell, J., concurred.


author: By the Court.—Sedgwick, J.

text:
    JOHN H. TAYLOR, Plaintiff and Respondent, v. JOHN HOEY, Defendant and Appellant.
    I. Attorney, Power of, to sell and exchange for stjch Price and on such Terms as to the Attorney shall seem meet certain Lands.
    1. What is not included in such a power,

      a. It does not authorize the attorney to sell any of the specified property on the terms that other property of his principal (not included in the power), shall be exchanged for property of the purchaser, and that his principal shall on such exchange' give a mortgage on the property received by him for a certain sum, and that a release of such mortgage shall be taken as a payment of so much on the purchase money of the property specified in the power.
    1. This, although the property of the principal so to be exchanged with the purchaser for property of his was itself received in exchange for property which the attorney was authorized to dispose of under the power.
    II. Ratification, what dobs not amount to.
    • 1. The execution at the attorney’s request of a deed by the principal for the property so to be exchanged, upon information from which he might well draw the conclusion that he was to receive cash, and without any knowledge that the purchase money was to be paid by the taking in exchange property of the purchaser on which he (the principal) was to give a mortgage for a part of the sum at which it was valued in the trade, does not ratify the act of the attorney in contracting the bargain of exchange.
    III. Application os’ above Pbincifles.
    When the attorney contracted to sell to the defendant lot A specified in the power of attorney for a certain sum payable in part by the assumption of certain mortgages, and the balance in cash, and the deed of the property was delivered to the defendant, who assumed the mortgages, and paid a part of the cash, and prior to this contract the attorney and the defendant entered into a contract by which the defendant agreed to convey to plaintiff lot B, belonging to him and the attorney, in behalf of the plaintiff agreed to pay therefor by giving the plaintiff’s bond secured by a mortgage on the said B, and conveying to defendant lot C of plaintiff’s not specified in the power of attorney; and the plaintiff, under circumstances not amounting to a ratification, executed a deed (which was never delivered) of lot C ; and at the time of the closing of the sale of lot A the attorney agreed on behalf of the plaintiff that so much of the cash to be paid by defendant as was equal to the amount of the mortgage to be given on lot B should be paid and satisfied by defendant releasing plaintiff from his obligation to give a mortgage on lot B ; and at the time and place fixed for the exchange of lots B and C defendant attended and was ready and willing, and had ever since been ready and willing, to perform on his part, but the plaintiff did not attend, and was not ready and willing to perform, and never has performed.
    Held,
    In an action brought by plaintiff to recover so much of the cash payment to be made on the sale of lot A which had not been paid, to which defendant answered, claiming a payment in the above manner, and also damages for the breach of the contract for the exchange of lots B and G that the contracts being separate and distinct—
    1. The plaintiff was entitled to recover the amount agreed to be paid in cash for lot A, less so much as had already been paid in cash.
    2. That the defendant was not entitled to recover damages for the breach of the contract relating to lots B and G.

      Before Monell, Curtis, and Sedgwick, JJ.

      Decided November 29, 1873.
    TV. Deed.—Clause acknowledging Payment oe Consideration.— Pleading—Evidence .
    1. The pí'má-facie evidence of payment, furnished by said clause, may be overcome by admissions and averments in a pleading.
    Appeal from a judgment entered on the verdict of a jury.
    The facts sufficiently appear in the opinion.

      Vose & McDaniel, attorneys, and Everett P. Wheeler of counsel for appellant.

      Mundy & Stout, attorneys, and Charles H. Mundy, of counsel for respondent.
   By the Court.—Sedgwick, J.

The plaintiff sued to recover $8,000 as due upon the sale and conveyance of real estate by her to the defendant.. The answer-averred that such sale and conveyance was made 19th of February, 1870, pursuant to a written contract executed on the part of the plaintiff through her agent; that before this sale and conveyance and contract the plaintiff entered into an agreement with the defendant, by which the former was to buy from the latter certain real estate in blew Jersey, and the plaintiff was to pay for the same by conveying to the defendant two lots of land in Fifty-seventh and Fifty-eighth streets hi blew York City, and also by giving her bond to the defendant in $8,000, secured by a mortgage upon the bTew Jersey land; that the defendant attended at the proper place and duly tendered performance on his part, and the plaintiff, although, professing an intention to convey the lots in Fifty-seventh and Fifty-eighth streets, and " to treat the said $8,000 as a part execution and fulfil“ment of the said contract,” was not prepared to convey those lots as provided "by the contract, because they were encumbered by mortgages. The averment above quoted from the answer referred to a previous part of the answer which stated that “ at the time of closing the “sale and conveyance referred to in the complaint, the “plaintiff being justly indebted under the contract set “up by the answer in the sum of §8,000 which, in lieu “of giving her bond and mortgage therefor, she elected “to pay by deducting the same from the cash payment “ of §9,500, which the defendant was to make upon the '‘sale and conveyance mentioned in the complaint, and “that accordingly it was agreed between the parties “that the whole of the said cash payment should be and “ the same was in and by the said deed mentioned in “the complaint acknowledged by the plaintiff to have “been paid, and that the same was in fact paid, parcel “thereof, to wit, the sum of §8,000, by releasing the “ said plaintiff from her contract to give a bond for that “ sum secured by a mortgage on the said lands at Long “Branch,” and the residue thereof, to wit, §1,500 in cash.

It does not appear by the pleading, and the contrary is to be inferred from them, that the contracts referred to were to be completed cotemporaneously. I should infer that the alleged failure of the plaintiff to perform her part of the contract set out in the answer occurred before the delivery of the deed referred to in the complaint, andthatthe claim was, thatafter that time the plaintiff elected that defendant’s obligation to pay her §8,000 should be satisfied by her being released from her obligation to give her bond for §8,000 and mortgage on the blew Jersey land. The answer, however, assumes in one part that this election had been made before the time for the completion of the contract set up in the .answer.

The answer demands judgment for damages for the plaintiff’s failure to convey the Fifty-seventh and Fifty-eighth Street lots as agreed.

As the testimony showed, the plaintiff was absent from this country during the transactions involved. She executed in Europe a deed of the Fifty-seventh and Fifty-eighth Street lots to the defendant, and sent it to Mr. Lynch, and wrote a certain letter concerning it to Mr. Lynch. This deed was never delivered to defendant, but destroyed. Beyond this, the matters set up in the answer refer to things done and agreements made in her name by Mr. Lynch, and an important and perhaps the only question is, was Mr. Lynch authorized to act for her ?

It is not disputed that Mr. Lynch was authorized, by power of attorney, to make the contract for the conveyance of the property referred to in the complaint. That power made him the attorney of the plaintiff, “ to grant, ‘' bargain, sell, or exchange for such price and on such “terms as to him shall seem meet” the property referred to in the complaint. The defendant urges, that it not being disputed that the attorney had the right to make the contract for the conveyance, he had the right to modify it before it was executed, and that therefore he had the right to bind her to take payment of $8,000 in some other way than in cash as first agreed. But, confining ourselves to the facts of this case, it seems clear, everything else being conceded, that he cannot uphold the agreement as one of binding obligation on the defendant, and then satisfy the defendant’s obligation by setting off against it, or consenting that there should be set off against it, an obligation on the part of the plaintiff made by him in her name and which he was not authorized to make. He would have been as much authorized to give a receipt in full, and release without any payment of the money in any form.

All other considerations being left out of view, the answer could not be maintaimed without proving that Mr. Lynch, was authorized by the plaintiff to make the agreement that she would buy the New Jersey property, and would give her bond and the mortgage on that property to secure it. As to this, I cannot see that there is any proof whatever that the plaintiff either originally or by ratification 'authorized Mr. Lynch either to bind her to give a bond, or to give one in her name which would become her bond, or to buy real estate for her, or to exchange the Fifty-seventh and Fifty-eighth Street lots for real estate. The power of attorney in writing, under which Mr. Lynch sold the property referred to in the complaint, has no relation to the Fifty-seventh and Fifty-eighth Street lots. It does not appear that she ever was informed that it was proposed that she should exchange that property for real estate and was to- give a mortgage upon the latter. On the contrary, the information she received, in pursuance of which she executed the deed of the Fifty-seventh and Fifty-eighth Street lots, was that they were to be sold for cash or at least for first mortgages, not for real estate on which she was to give a mortgage.

I think, therefore, that the conclusion of the learned judge below, that the defendant had not shown any authority from the plaintiff to Mr. Lynch to make the agreements on which the defence rests, was correct, and the various rulings made by him on that position were also correct.

Further, the learned judge was correct in deciding that the presumption created by the admission .in the deed (of the property referred to in complaint) that the consideration had been paid in money, was modified by the statements in the answer setting up the mode of payment, and that it was not in money.

The judgment should be affirmed, with costs.

Mohell and Curtis, JJ., concurred.


author: By the Court.—Monell, J.

text:
    DAVID WOOLF, Plaintiff and Respondent, v. AARON JACOBS, Defendant and Appellant.
    I. Supplementary Proceedings.
    1. Injunction in.

      a. When non-adjournment of proceedings does not ea/use the injunction to fall.

    1. Where the proceedings standing adjourned to a certain day, the defendant in the meantime obtains an order to show cause why they should not be set aside, and a stay of proceedings until the motion to set aside should be decided, and is successful in obtaining an order granting this motion, which, however, is reversed on appeal, but no adjournment of the supplementary proceedings was had on the day to which it stood adjourned at the time when the stay was granted—

      Held,

    1. That under these circumstances, notwithstanding the non-adjournment of the supplementary proceedings, and notwithstanding the order at special term setting aside the proceedings, the injunction continued in full force.

      2. That the conveyance by the judgment debtor, after the Special Term order and before the General Term order, of real estate deeded to him, by deed dated before the granting of the injunction, and delivered after the Special Term order but before the General Term order, was a violation of the injunction, and subjected the judgment debtor to punishment as for a contempt

    II. Contempt.—Injunction.—Conveyance of Real Estate.
    1. What facts do not authorize a holding, that a conveyance of real estate by one who is by an injunction restrained from parting with his property, is not in judgment of law a violation of the injunction.

    1. The ba/re fact that the property so conveyed was, although standing in the name of the one so enjoined, in fact purchased with the money of his wife advanced for that purpose does not authorize such holding.

      Before Mowell and Curtis, JJ.

      Decided December 31, 1873.
    Appeal from an order.
    This was an appeal from an order directing an attachment to issue against the defendant for a contempt in disobeying an injunction order dated July 7, 1870, made in proceedings supplemental to an execution. The order contained the usual injunction enjoining the defendant from disposing of his property.
    The proceedings were regularly adjourned to the 30th of August, 1870. On the 17th of August the defendant obtained an order to show cause on the 22d of August, why the judgment in the supplementary proceeding should not be vacated, and a new trial granted, with a stay of all proceedings on the judgment on the part of the plaintiff until the hearing and decision of the motion. The motion was not decided until January 12, 1871, when it was granted, and an order to that effect entered on that day. Upon appeal to the General Term, the decision was reversed, and an order to that effect entered on that day.
    The motion for the attachment was founded upon proof that during the pendency of the stay of proceedings the defendant had violated the injunction by conveying certain real estate.
    The papers on appeal show that no adjournment of the supplementary proceeding was had on the 30th of August, 1870, or at any time afterwards; that the real estate conveyed by the judgment debtor had been con veyed to him by a deed executed by Simon S. West-brook, which although dated. February 14, 1871, yet was not delivered to or received by him until October 18, 1871, and although the legal title to such premises stood in the name of the judgment debtor by the conyeyance to him, yet the purchase therefor was paid with money belonging to the wife, advanced by her for that purpose.
    "Upon these subjects the judgment, debtor in his affidavit swore as follows:
    “Deponent further says, that the money with which the said property in question was bought was the money and separate property and estate of his wife, Hannah Jacobs, who is now, was then, and has been for the last ten years, engaged in the business of tailors’ trimmings, in the city, on her own account and in her own name, and that the taking of the deed of said property in deponent’s name and of transferring the said property in his name ivas a mere matter of convenience and form, inasmuch as deponent was a judgment creditor of the said Woolf, on an execution against whom said property had been sold by the said Westbrook, as sheriff of Ulster County, but that the money paid and received therefor belonged to, and was received by, the said Hannah Jacobs.”

      Christopher Fine, attorney and of counsel for appellant, urged:
    1st. Even the nominal ownership in Mr. Jacobs did not come to him until the 18th day of October, 1871, while the supplementary order was made and served on the 1th day of July, 1870.
    After acquired property is not bound or affected by the supplementary order, etc. (Woodman v. Goodenough, 18 Abb. Pr. 265; Graff v. Bennett, 25 How. Pr. 470 ; Campbell v. Genet, 2 Hill, 294; 3 Abb. N. S. 264).
    2d. The defendant, Mr. Jacobs, did not actually own the property, but the same belonged to his wife.
    This is uncontradicted.
    3d. The supplementary order of Chief Justice Barbour of 7th July, 1870, had been terminated, waived, and abandoned by the plaintiff, and was superseded "by the subsequent order of the court of 12th January, 1871, granting a new trial.
    The case at bar is quite distinguishable from the case of Cowdrey v. Carpenter (2 Rob. 606). In that case the question was whether one judge could set aside or dismiss a supplementary order granted by another judge, because an appeal had been taken from the judgment. In the case at bar, the questions are, did not the order granting a new trial, and the various other orders, supersede the order for the examination? and did not plaintiff, both expressly and by his neglect ever to revive the order for examination, and by his long and otherwise unexplained laches, waive any and all advantage under the supplementary order of 7th July, 1870 ? The order was for his benefit, and of course he could waive it.
    “The proceedings may be terminated as absoltitely ‘6 by the or editor1 s abandonment of them as by an order 11 of the judge before whom they are pending.’ ’ Designedly omitting to attend on an adjourned day, etc.,will be deemed an abandonment (Squire v. Young, 1 Bosw. 690).
    Surely, then, omitting to have any time or place fixed for examination—omitting to have any day adjourned or otherwise designated, and allowing the whole order to sleep from February 3, 1872, until the 15th day of October, 1872, and, indeed, even to the present time, should be held to be an abandonment of the order for examination.
    Unless the proceedings are regularly adjourned from day to day, jurisdiction is lost of them (Squire v. Young, 1 Bosw. 690.

      C. Bainbridge Smith, of counsel for respondent, urged :
    1st. The order restraining the defendant from parting with any of his property was in full force and effect when he conveyed the property to Bernstein.

      If an injunction granted on a creditor’s bill is dissolved because the bill does not show that the remedy at law is exhausted, the defendant should, nevertheless, be punished for his disobedience, by being charged with the costs of the proceedings against him for his contempt (Smith v. Fitch, Clark, 265 ; Sullivan v. Judah, 4 Paige, 444).
    2d. The case of Cowdrey v. Carpenter (2 Robertson R. 601) is decisive of the question now before the court.
    I. The above case is not inconsistent with those cases where the proceedings have been voluntarily abandoned by the plaintiff (Squire v. Young, 1 Bos. 690).
    II. Although it was said in Hawes Barr (7 Rob. 452) “ whether the General Term can make a new order requiring the judgment debtor to appear and be examined, or direct a single judge to make such an order, is ■a matter not free from doubt.”

        Query: Does the decision of the court go to the extent of holding that after acquired property can be bound by a supplementary order, or does it not simply hold that the judgment debtor was really the owner at the date of deed, although the title may not have vested in him until its actual delivery.

   By the Court.—Monell, J.

There were sufficient facts, we think, before the Special Term to put the defendant in contempt. The allegation that the defendant’s wife had some right or interest in the real estate, conveyed by reason of her having advanced the purchase money therefor, does not affect the question. The defendant had the legal title to the property (1 R. S. 728, § 51), and there was no resulting trust in favor of his wife (Bodine v. Edwards, 10 Paige, 504; Jencks v. Alexander, 11 Id. 619 ; Garfield v. Hatmaker, 15 N. Y. R. 475).

If, therefore, the injunction was subsisting when the defendant conveyed the property, the fact stated in his affidavit was no answer to the alleged contempt; and the real and only question, we think, is, whether the injunction was then in force.

In Cowdrey v. Carpenter (2 Robt. 601), this court held that a stay of proceedings upon a judgment merely suspended supplemental proceedings upon the judgment; and that it was not competent for the court or judge, pending such stay to dismiss the supplemental proceeding. In that case the stay was obtained by giving an undertaking upon an appeal from the judgment, and the court says the appeal suspends the plaintiff’s right to obtain the benefit of his lien, but does not take it away.

We have examined the other objections taken by the appellant, but do not find any of them to be well taken.

The order appealed from, was correct, and should be affirmed, with costs.

Curtis, J., concurred.


text:
    CHARLES A. HINCKLEY, Plaintiff and Respondent, v. WILLIAM KREITZ and EMIL UNGER, Defendants and Appellants.
    I. Undertaking on Appeal to the General Term—Costs of Appeal to Court of Appeal.
    1. Liability of the sureties on.

      a. Such undertaking includes and covers the costs of an appeal to the Court of Appeals, and the sureties thereon are liable for such costs.

      2. Release of sureties on.

      a. Whether a stipulation, in an agreement between an assignee of the judgment (Gunther) and an attorney (Elmore) who had a lien, etc., by which the attorney, in consideration of $500, agreed to accept that sum in full of all costs and counsel fees and disbursements then or thereafter to be incurred, and to take all necessary and proper means to enforce the judgment as against the judgment-debtor without further charge or expense, that no proceedings should be taken on the judgment against the sureties on the appeal to the Court of Appeals; and a clause in an assignment of said judgment by said assignee to said attorney, whereby the attorney, in consideration of the assignment releases the sureties on appeal to the Court of Appeals from any and all liability by reason of their having been bail in the action, and agrees to protect and indemnify them against any liability incurred by them, or either of them by reason of being such bail, and from any and every and all liability whatever; and whereby the assignee covenants on the part of said sureties, that they will not or either of them bring any claim or make any demand against the attorney on account of any money paid to the plaintiff in the action, or said attorney in the action, or in the proceedings therein by said sureties on the appeal to the Court of Appeals; coupled with the oral testimony of one of such sureties that he paid $350'to his co-surety (since dead) “ who attended to the whole matter; ” and the oral testimony of the attorney to the effect that he received the $500 mentioned in his agreement with Gunther, from Gunther; that he knew the sureties on appeal were uneasy; that Gunther told him " he bought the judgment from Dennstaedt (the judgment plaintiff), and made that agreement with Schuchman and Muller ” (the sureties on the appeal to the Court of Appeals) operate to release the sureties on the appeal to the General Term—was not passed on by the court, such defence not being set up in the answer.
    Before Monell, Curtis, and Sedgwick, JJ.

      Decided December 31, 1873.
    3, Payment, what is not.

      a. The $500 mentioned in the agreement between Gunther and Elmore, paid to and received by Elmore, does not enure to the benefit of the sureties on the appeal to the General Term as to payment on the judgment.
    Appeal from judgment and from order denying motion for a new trial made on minutes.
    Upon an appeal taken by one Anschutz from a judgment in the Court of Common Pleas against him, in favor of the plaintiff’s assignor, he gave an undertaking with these defendants as sureties. The appeal was from the Special to the General Term.
    The undertaking, after reciting the judgment and the appeal therefrom, was as follows :
    “Wow therefore, we, William Kreitz, of Wo. 156 East Houston Street, in the city of Wew York, and Emil Unger, of Wo. 46 East Houston Street, in said city, do hereby, pursuant to the statute in such case made and provided, undertake that the said appellant will pay all costs and damages which may he awarded against him on said appeal not exceeding five hundred dollars; and do also undertake, that if the said judgment so appealed from, or any part thereof, he affirmed, or the appeal he dismissed, the said appellant will pay the amount directed to he paid by the said judgment, or the part of such amount as to which the said judgment shall be affirmed, if it be affirmed only in part, and all damages and costs which shall be awarded against said appellant on the said appeal.”
    The judgment was affirmed by the General Term, and the defendant took a further appeal from such judgment of affirmance to the Court of Appeals, giving a new undertalcing with other sureties. The Court of Appeals affirmed the judgment of the General Term, and remitted the record to the court below, where judgment upon the remittitur was duly entered.
    The plaintiff in this action claimed, and was allowed to recover against these defendants, all the damages and costs in the action, including the costs of the appeal to the Court of Appeals. It appeared in the evidence as follows:
    On the 14th of April, 1869, Gottlieb Gunther executed an agreement purporting to be between him and J. B. Blwood, whereby, after reciting the judgment recovered in the Common Pleas by Dennstaedt against Anschutz and the affirming thereof by the General Term and an appeal pending in the Court of Appeals, and that such judgment had been by an instrument bearing even date therewith assigned by Dennstaedt to him (said Gunther) subject to the lien of said Elwood for costs, counsel fees, etc. It was in substance agreed that Elwood in consideration of $500, the receipt whereof he acknowledged, should accept said $500 in full payment of all costs, counsel fees, and disbursements in said action whichhad been or might thereafter be incurred, and should take all necessary and proper measures to enforce said judgment against said Anschutz without further charge or expense, and that no proceedings should be taken on said judgment against Philip Schuchmann and Nicholas Muller, the sureties who joined in the undertaking on the appeal to the Court of Appeals.
    On the 30th of December, 1871, by an agreement made between said Elwood and Gunther under seal, Gunther assigned the judgment and judgments in the above agreement mentioned to Elwood, and released Elwood from all the terms, conditions, and requirements thereof. Said agreement then proceeded as follows :
    “And the said Elwood on his part, in consideration of the foregoing, agrees to protect and save harmless the said Gunther from any and all liability by reason of his having been the owner of said judgment and judgments, and also releases and absolves the said Muller and Schuchmann, in said foregoing agreement named, from any and all liability by reason of their having been bail in said action, and agrees to protect, save harmless, and indemnify them forever from and' against any liability incurred by them, or either of them, by reason of being such bail, and from any and every and all liability whatever, except as qualified, as follows, to wit: The said Gunther covenants and agrees on the part of the said Muller and Schuchmann, that they will not, or either of them, bring any claim or make any demand of or against the said Elwood by or on account of any money paid to the plaintiff or to said Elwood in this action, or in the proceedings herein by the said Muller and Schuchmann, or either of them, and that he will protect and save harmless the said Elwood from and against any and all claims and demand they or either of them may make against him therefor.”
    On the 23d of November, 1872, Dennstaedt executed to the plaintiff the following assignment:
    “For a valuable consideration to me in hand paid, I hereby releáse, assign, transfer, and set over unto Charles A. Hinckléy, of the city of Hew York, all my right, title, and interest in and to the above described judgment and judgments and to the undertaking and undertakings given on the appeal and appeals in said action, and to any and all remedies and causes of action that I may have or might have had upon said undertaking and undertakings, or against the sureties thereto, had this transfer by me not been made ; and I do authorize the said Hinckley to do any and all acts in the premises for the collection of said judgments, and the enforcement of said remedies upon said undertakings and against the sureties thereto, in the same way and manner and as fully as I could have done, had I remained the owner and holder thereof.
    “Dated Hew York, Hov. 23, 1872.
    “Fr. Dennstaedt.”
    On the 29th of Hovember, 1872, Blwood executed to plaintiff an assignment in the same form as the one last above.
    The instruments were read in evidence. On the trial, John Philip Schuohmann, one of the sureties on the undertaking to the Court of Appeals, was called as a witness, and in answer to the question, “Did you ever pay any money to Mr. Dennstaedt, or to Mr. Blwood for Mr. Dennstaedt on account of this judgment % ” testified in substance that he could not say he paid money on account of the judgment; that it was Mr. Muller (his co-surety) that settled; that he did not do it himself; that he paid Muller $250, and left him “to attend to the whole matter.”
    Mr. Blwood testified that he received the $500 mentioned in the agreement between Gunther and him, from Gunther ; that he knew the sureties on appeal were very uneasy on account of the insolvency of their principal; that Gunther told him “he bought the judgment from Dennstaedt, and made that agreement with Schuchmann and Muller.”
    Dennstaedt testified that he had sold all his interest in the judgment to Gottlieb Gunther before Nov. 23, 1872, and that the assignment to Gunther was in writing. This assignment was not read in evidence.
    One of the defences in the present action was that the plaintiff was not the real party in interest, but that said J. B. Elwood was such real party. Some evidence was given which it was claimed tended to establish that defence.
    It was also claimed that the payment of the five hundred dollars mentioned in above agreement between Gunther and Elmore should be allowed against the plaintiff’s claim. At the close of the evidence on both sides defendant’s counsel moved to dismiss the complaint on the ground that there was no proof that the defendant, Anschutz, had not discharged his liability; second, that there vyas no proof that a demand was made upon the sureties for payment before suit; and third, on the further ground that the plaintiff is not the real party in interest, and that the defendants have been released.
    Motion was denied, and defendant excepted.
    Defendant’s counsel then asked leave to go to the jury on the question whether Mr. Elwood was not the real party in interest; also, whether part of the judgment had not been paid; also, as to whether the plaintiff was the real party in interest.
    Denied, and defendant excepted.
    Defendant’s counsel then asked the court to instruct the jury that they cannot find for the costs to the Court of Appeals. That they must credit on the judgment $500 and interest paid on the 14th of April, 1869.
    Denied, and defendant excepted.
    The court directed a. verdict for the plaintiff for $1,836.20.

      To which defendant excepted.
    Defendant’s counsel moved for a new trial on the minutes,, which was denied, and defendant excepted.
    Defendant appeals from the judgment entered upon the verdict, and from the order denying the motion for a new trial.
    S. Kauffman, attorney, and Lewis S. Sanders of counsel for appellants, urged :
    I. There was direct positive evidence of payment of $500 by Schuchmann & Muller on account of the judgment.
    II. Manifestly, the condition of the undertaking was fulfilled when judgment was rendered at the General Term, and appellants’ liability was. absolutely fixed and terminated then. We have,, also, in the case another undertaking covering the costs of the Court of Appeals.
    III. Dennstaedt or Gunther received from Schuchmann & Muller, sureties on the undertaking to the Court of Appeals, five hundred dollars, for which sum Messrs. Schuchmann & Muller were released from their undertaking. In fact, by a secret agreement the stay of proceedings of Dennstaedt against Anschutz on the judgment was cancelled, and Anschutz’s time to pay voluntarily extended for five hundred dollars until action of Court of Appeals.
    1. A voluntary extension to principal of time of payment for a valuable consideration, without the consent of the sureties, discharges the sureties, “the law presuming injury to the surety” (The Bank of Albion v. Burns, 46 N. Y. 175).

      2. Part payment, with an extension of time of payment of balance, discharges surety (Smith v. Townsend, 25 N. Y 482.
    “ Suspending right of action by the creditor has alike “effect, although but for a single day” (Place v. McIlvain, 38 N. Y. 99 ; Fellows v. Prentiss, 3 Denio, 518 Myers v. Welles, 5 Hill, 464-5).
    3. The acceptance of five hundred dollars by Dennstaedt or Gunther, and a cancellation of Schuchmann & Muller’s undertaking and stay of proceedings, worked a suspension over of the remedy of appellants Unger and Kreitz against Anschutz, and operates as a discharge of their liability as sureties (Myers v. Wells, supra).

    4. “ When a surety intervenes for the purpose of obtaining time for the principal, a prior surety will have the same rights against him as against the principal, such prior surety stands in the place of the creditor, and such latter surety stands in the place of the debtor, and can be relieved only by payment of the debt” (Schirtzel’s Appeal, 49 Penn. P. 25; Armstrong’s Appeal, 5 Watts & S. 356; Cunio v. The Huntingdon Bank, 1 Penr. & W. 398 ; Potts v. Nathan, 1 Watts & S. 157 ; McCormick’s Adm. v. Irwin, 11 Casey, 116).
    The release of Muller & Schuchmann was a release of the sureties ultimately liable to pay, and by operation of law was a release of the prior sureties, the appellants here.

      T. B. Elwood, attorney, and of counsel for respondent.
    The defence as to the claim for costs in the Court of Appeals was unsustained (Traver v. Nichols, 7 Wendell, 434; Ball v. Gardner, 21 Wendell, 270; Bennett v. Brown, 20 N. Y. 99; Robinson v. Plympton, 25 N. Y. 484; Gardner v. Barney, 24 Howard, 467 [affirmed in Court of Appeals—see How. Pr. Reps. 599, note of Cases affirmed] ; Smith v. Crouse, 24 Barb. 433 ; Tibble et al. v. O’Connor, 28 Barb. 538, 61 Barb. 125).
    There is no pretence made by defendants of any payment by them, or either of them, or by the sureties, but only of a payment by Gunther, to his attorney when he was the owner of the judgment and actual plaintiff in the action. Any defendant in any action could ¡equally well insist upon a reduction from the amount to "be recovered from him of any sum that the plaintiff had paid his own attorney in the prosecution of the . action.
   By the Court.—Monell, J.

There was no disputed -question of fact in the case which required submission to the jury. The proof of the transfer of the judgment to the plaintiff was clear and abundant. Not only the written assignment which was not impeached, but the parol evidence furnished by the defendants, established very conclusively that the title to the judgment was in the plaintiff. The intermediate assignments from Bennstaedt (the plaintiff in the judgment) to Gunther, and from Gunther to Elwood, formed the links in the chain of title, after proof of the assignment from Elwood to the plaintiff. Had there been any equity or interest of the defendants affected by such several transfers, or by any of them, then a question of a different character might arise. But it does not appear that there was any defence which the defendants could have made available against Gunther or Elwood which was not equally available against the plaintiff. It was therefore immaterial so far as the defence was concerned, that the plaintiff’s title came through Elwood and Gunther. The written assignments conveyed the legal title, and that was enough as against the defendants, who had no •special equities as against any of the other parties.

The five hundred dollars paid to Elwood was not a ■payment on the judgment. It expressly appears that it was paid under the agreement between Gunther and Elwood that it should be received “in full satisfaction •of all costs, counsel fees, and disbursements in the action which had been or might be incurred. ’ ’ Such costs, etc., were such as the plaintiff in that action, or his assignee, Gunther, might incur or be liable for, and did not in-. elude or apply to the costs recoverable in the action, and which were included in the judgment against Anschutz, the defendant.

There was, therefore, no question of fact for the jury upon either of these branches, of the case, and the refusal to make the submission was not erroneous.

The right to recover in this action against the sureties on the appeal from the Special to the General Term, the-costs of the appeal to the Court of Appeals, presents a question which has not, I believe, been directly adjudicated upon by any court. There are many cases, fosóme of which I will presently refer, which are dicta, at least in favor of the right.

As an original question, I should incline strongly against it.

The defendants were sureties upon an appeal from a Special to a General Term of the court. Their engagement was that their principal, the appellant, would pay all costs and damages which might be awarded against him “on said appeal,” and if the judgment should be-affirmed, the amount of such judgment.

Here, it seems to me, is an express and clear limitation of the sureties’ agreement that if the appellant is-unsuccessful, he shall pay all costs and damages which may be awarded against him on such appeal. There is-nothing in the instrument that would indicate an intention on the part of the sureties to enlarge their liability, and extend it to other or further proceedings in. the action. An appeal from a Special to a General Term is a distinct and definite proceeding. Although, in one sense a continuation, it is, nevertheless, a separate and disconnected action, regulated by special provisions of law, and is as capable of involving a separate-liability and limitation, as in the case of any othersuretyship. x

This view is strengthened, I think, by the provision <of law, that to render an appeal to the Court of Appeals £ £ effectual for any purpose, ’ ’ a written undertaking must "be executed on the part of the appellant to the effect that he will pay all costs, etc., which may be awarded against him in that court (Code, § 334). Such undertaking requires at least two sureties. Here is a further appeal, but it is wholly separated from any prior appeal, and absolutely requires a new undertaking with a fresh and original liability of sureties.

If the intention of the legislature can be ascertained from the several provisions of law regulating these successive appeals, it is manifest, I think, that it was de" signed not only that security should be given upon each appeal, but that such security should be applicable and appropriate to each appeal. Had it been supposed that the sureties upon an intermediate or previous appeal could be held for the costs of all subsequent appeals, then the provision requiring a new undertaking in the Court of Appeals would have been onerous and unnecessary.

It seems to me, therefore, that the defendant’s liability did not extend beyond the costs, etc., in the General Term, and cannot be construed to include the costs of a further appeal to which they were not privy.

But I And a number of decisions, some of which are authority for us, in which language is used of such an unmistakable import as to render the question stare decisis.

In Travers v. Nichols (7 Wend. 434), the security was for the payment of any sum which might be adjudged against the party giving it, and it was held that the liability of the sureties extended to all the costs in the action, and included the costs of an appeal from a justice of the peace to the Court of Common Pleas.

In Ball v. Gardner (21 Wend. 270), the bond was given by the plaintiff upon suing out an attachment from a justice’s court, and was conditioned to pay alt damages and costs if he failed to recover. This was held to extend to the final determination of the action, and was not restricted to a recovery before the justice.

In Smith v. Crouse (24 Barb. 433), there was an appeal to the county court from a judgment of a justice of the peace. The undertaking was to the effect that if judgment should be rendered against the appellant, the sureties would pay any unsatisfied part of the judgment. The county court reversed the judgment of the justice. «An appeal was taken to the Supreme Court, where the judgment of the county court was reversed, and that of the justice affirmed. It was held that the sureties were bound for the costs in the Supreme Court.

In Tribbles v. O’Connor (28 Barb. 538), the undertaking was on behalf of a plaintiff in an action of claim and delivery of personal property, and was conditioned for the payment to the defendant of such sum as might" for any cause” be recovered. This was held to cover all the costs in the action, including those of an appeal to the General Term.

Gardner v. Barney (24 How. Pr. R. 467), was in most respects like the case before us. There was an undertaking upon appeal from the Special to the General Term. The judgment of the Special Term was reversed, and the respondent appealed to the Court of Appeals, when the General Term was reversed, and the •Special Term affirmed. In sustaining the right to the costs in the Court of Appeals, it was held that “there was nothing in the Code nor in the language of the undertaking which restricts the liability of the sureties to the action of the General Term.” This case was affirmed by the Court of Appeals (see Seacord v. Morgan, 3 Keyes, 638).

Bennett v. Brown, (20 N. Y. R. 99) was, like Ball v. Gardner (ubi sup.), an action upon a bond given upon the issuing of an attachment, and a like decision was made; and Letson v. Dodge (61 Barb. 125) was like Tibbetts y. O’Connor, (ubi sup.), and a like decision was made.

In Robinson v. Plimpton (25 N. Y. R. 484), the undertaking was the same as in this case, but the General Term reversed the judgment below. On appeal to the Court of Appeals the General Term was reversed and the Special Term affirmed. Mr. Justice Allen says (p. 485): “In terms the undertaking does not restrict the liability of the defendants to the contingency of an affirmance of the judgment by the Supreme Court. The condition may as well refer to an affirmance by the judgment of any court to which the cause may go by appeal, or the final decision of the action in the court of last resort. There was no reason for making the undertaking effectual only upon the first appeal, and for the judgment of a court which was not necessarily final; and the statute and the undertaking given in pusuance of it have respect to the final determination in the court of last resort, or the last court to which the parties may take it by appeal. The cause is the same in every court, and the question in each is the same, to wit, whether the first judgment—that appealed from by the defendant’s principal—was erroneous and should be reversed, or was right and should be affirmed. The condition is in substance for the ultimate affirmance of the judgment appealed from.”

I have quoted thus largely from the opinion that the import of the decision may be clearly seen. There is no mistaking the language of the learned justice, and it puts it beyond all doubt, that the court intended to hold, and did hold, that the liability of the sureties continued until the final decision in the Court of Appeals.

A distinction might be drawn, if the language of the opinion admitted of it, between a reversal and an affirmance in the General Term. It might be said that as the sureties limited their liability to an affirmance by the General Term, which, so far as they were concerned, was a final determination, .they cannot be deemed to have stipulated for any further liability. According to-all the cases, upon an affirmance the sureties immediately became liable. Upon what principle, then, is that liability to be extended on proceedings which they did not institute, and in which they took no part 1 It may be different where the judgment is reversed. Then (as Mr. Justice Allen says), the contingency of an affirmance has not happened.

But, as I have said, .there is no mistaking the language in the case last referred to. It is sufficiently comprehensive to take in this' case, and we must follow it.

Seacord v. Morgan (3 Keyes 636) was an affirmance as to one only of several defendants, and the undertaking was held to be binding as to that one ; but it does not clearly appear that the plaintiff sought to recover the costs in the Court of Appeals. The undertaking, however, in that case was upon the appeal to the Court of Appeals, and I refer to it merely as approving Gardner v. Barney (ubi sup.).

Following these decisions, there was no error in allowing a recovery of the costs in the Court of Appeals.

We have examined the other exceptions taken at the trial, but do not find any error in the matter to which they relate.

The judgment should be affirmed.

Curtis, J., concurred.