text:
    James A. Van Schaick, Respondent, v. Edgar C. Van Buren, Paul C. Van Buren and T. Franklin Silvey, Appellants.

      Agreement not capable of enforcement became of uncertainty.

    The defense interposed to an action brought upon a promissory note for §1,500, made by the defendants to the plaintiff, was to the effect that the giving and taking of the note were a part of an agreement by which the plaintiff was to loan to one of the defendants §3,000, to enable him to purchase and stock a farm, on which the plaintiff was to take a mortgage; that the $1,500 represented by the note was a part of this loan, and that the balance of $1,500 was to be advanced at the maturity of the note when the note was to be taken up, and a mortgage was to be taken for the whole $3,000 for a term of years; that at the maturity of the note, the said defendant offered to execute the mortgage, but the plaintiff refused to take up the note and advance the further sum of 31,500, or to take the mortgage.

      Held, that conceding that the agreement on the part of the plaintiff was to advance an additional $1,500, and then take a mortgage for the whole $3,000, and surrender up the note for §1,500, still the agreement was not capable of being enforced, by reason of its uncertainty.
    Appeal by the defendants, Edgar O. Yan Burén, Paul C. Yan Burén, and T. Franklin Silvey, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Washington county on the 27th day of July, 1892, upon the report of a referee.
    The facts and questions presented are set forth in the opinion of the referee, I). M. Westfall, Esq., which is as follows:
    “ This action is brought upon a promissory note for $1,500 given by defendants to plaintiff, dated April 1, 1884, payable one year from date with interest. The defendant, Edgar O. Yan Burén, answers separately, and the other two defendants answer together. Neither answer denied any allegation of the complaint. The answer of Edgar O. Yan Burén sets up as a defense, in substance, that the giving and taking of the note were a part of an agreement by which the plaintiff was to loan to the defendant, Edgar C. Yan Burén, the sum of three thousand dollars to enable him to purchase and stock a farm, and the plaintiff was to take a mortgage therefor on such farm £ for a term of years thereafter; ’ that the fifteen hundred dollars represented by said note was a part of said loan, and the balance of $1,500 was to be advanced at the maturity of the note, the note to be taken up and mortgage to be taken for the whole three thousand dollars for a term of years; that at the maturity of the note, the defendant, Edgar C. Yan Burén, £was ready and willing and offered to execute said mortgage,’ but the plaintiff refused £ to take up the said note and advance the said further sum of fifteen hundred dollars * * * or to take the said mortgage upon the said lands for a term of years for $3,000, and refused to perform,’ &.c., by reason whereof the defendant, Edgar C. Yan Burén, £ was prevented from properly stocking and working and managing the said farm, and was deprived of the profits thereof.’

      “ The other answer sets up as a defense, in substance, that prior to or at the time of the execution of the said note, it was agreed between tbe parties that tbe c plaintiff would take up tbe said note when it became due and advance fifteen hundred dollars more to the defendant, Edgar O. Van Burén, and release and discharge these defendants from all liability on the said note, and for the whole sum which these aggregated, three thousand dollars, would -take a mortgage for a term of years upon the real estate of the defendant, Edgar O. Van Burén;’ that said defendant, Edgar C. Van Burén, was ready and willing and offered to execute the said mortgage * * * but that the said plaintiff refused to take up the said note. * * * or to advance fifteen hundred dollars more of money or to take and accept therefor the mortgage of the said defendant, Edgar C. Van Bfiren, upon the said lands for the whole amount.
    “The plaintiff replied to the answer "of Edgar C. Van Burén denying the matters of counterclaim therein.
    “ The defendants by their answers aver that the real estate in question was of the value of six thousand dollars. It was in fact-worth only $3,000, or at most $3,500, and of that from $2,200 to-$2,500 was in the buildings.
    “ There was upon the trial much conflict, indefiniteness and discrepancy. in the evidence as to the negotiations and conversations-between the parties, and much indefiniteness as to precise dates. But I think the evidence fairly leads to the following conclusions and in the following order, viz.:
    “In March, 1882, the defendant, Edgar C. Van Burén, bought a farm of three hundred acres in Sunderland, Vermont, from the Hawleys, and took as his only title a quit-claim deed thereof from James Law, and gave to Law a mortgage thereon for $2,700, and to the Hawleys a mortgage thereon for $300. The mortgagor paid the-interest on the Law mortgage in the spring of 1883. On the last day of March or the 1st day of April, 1884, defendant, Paul O. Van Burén, applied to the plaintiff for a loan to his son, the defendant, Edgar, of $3,000 on said farm; and represented the farm to be worth from five thousand to six thousand dollars. Plaintiff replied that if he had $3,000, he would like to let it on such security as that, but that he had on hand only fifteen hundred dollars. Later the same day, the parties met at Schuylerville and talked about the matter, and defendant Silvey represented to plaintiff that he was acquainted with, the farm and thought it was worth from four thousand to six thousand dollars, and that if he had the money to loan himself he would have no hesitancy in loaning it on that security. The plaintiff repeated that he had only fifteen hundred dollars, and the defendant Edgar requested plaintiff to loan him the $1,500 on a second mortgage, which he declined to do, and then defendant Edgar requested the plaintiff to raise the three thousand dollars, or to have it raised in some way, and take a first mortgage on the farm, which the plaintiff also declined to do, and suggested or proposed in substance, £ you give me your note, get your father and Silvey to sign it with you, I will let you have the fifteen hundred for a year, and if I get this money (meaning moneys expected from the west) during the year, I will pay it to you and take a first mortgage, just as we are talking now.’ Defendant Edgar testifies that this was the proposition, and the other defendants agree with him that there was talk about moneys expected by plaintiff from the west, and they all agree that plaintiff’s excuse for not making the further loan was that his moneys did not come from the west. Silvey was unwilling to sign the note without first consulting with his son. Defendants, therefore, told plaintiff they would let it rest that way and see him the next day, and they went elsewhere to look for the money, but failing to get it, they returned the next day (April 1st or 2d) and reported to the plaintiff that Silvey’s son had consented to let him sign the note if he would take a mortgage at the end of the year for three thousand dollars. There is great discrepancy among the four parties as to the order, form and substance of what was said and done on that occasion, but the note in suit was then drawn, executed and delivered, and defendant Silvey received therefor the plaintiff’s check for fifteen hundred dollars, payable to Silvey’s order, and dated April 1st, 1881. It is more than probable that both Silvey and plaintiff believed the farm to be a sufficient security for a three thousand dollar loan, although the plaintiff had never seen it, and that the plaintiff would be in funds to make the loan within the year, and that, therefore, the plaintiff told Silvey that ‘ he need not be worried, that it would be all right at the end of the year, and I will advance the money and take the first mortgage, provided there is no other mortgage on it.’ But in all the conversations and negotiations in the matter not one word was said in regard to the time or terms of the proposed mortgage. There was no attempt even to prove the allegation of the answers to the effect that the mortgage was to be ‘ for a term of years.’ Nor was any attempt made to prove that the funds which plaintiff was expecting to come in, ever in fact came in. 'I was impressed upon the trial, and am more strongly impressed now upon reviewing the evidence and circumstances that, although the plaintiff gave the defendants strong assurances that he would make the three thousand dollar loan, yet none of the parties understood at the time that there was any definite, conclusive and binding agreement to do so that could be enforced by either party, or that would operate to invalidate the note if the loan was not made, but rather that the parties, especially the plaintiff and the defendant Silvey, confidently expected that the plaintiff would have the funds, the security would prove satisfactory, and the terms of the mortgage would at some future time be agreed upon.
    “ Upon the receipt of plaintiff’s check defendant Silvey indorsed it and received for it at the Schuylerville bank a twelve hundred dollar draft and three hundred dollars in currency, with which he and defendant Edgar started for Yermont. Plaintiff advised or requested Silvey to see that everything was all right, just as it had been recommended to be, and that there were no liens on the. property, and learn whether or not Mr. Law would accept the money on his mortgage if plaintiff’s money should come in soon, and so save plaintiff the trouble of driving over there, and to bring the money back with him if he did not find it all right.
    “ Silvey and Edgar stopped at the Cambridge bank and got the draft cashed and proceeded directly from there to Mr. Law’s without first going to the clerk’s office to make any inquiry, and paid him upon his mortgage $1,262, and for taxes on the place $26.87, amounting to $1,288.87, reducing the mortgage to fifteen hundred dollai’s. The Hawley mortgage was taken up and discharged that day or the next, and Edgar gave to Silvey a mortgage for $1,500 to indemnify him against the note. Silvey made a memorandum in his pocket account book, noting the signing of the note and the furnishing of the funds to pay Law and Hawley, but making no mention of any agreement for a further loan. January 16, 1885, plaintiff notified Silvey by letter that he should want the' money'on tbe note in tbe spring, and Silvey notified Paul Van Burén. They reminded the plaintiff that the understanding was that he should advance $1,500 more. He replied that he could not do it, that his money was west, and he wanted this and must have it to send there to secure moneys he had already invested there.
    “In the latter part of March or on the 1st of April, 1885, "Silvey paid the plaintiff one year’s interest on the note with funds provided by the Van Burens, and afterwards and about April 2d or 3d, the defendants and Silvey’s son-in-law met by appointment at Schuyler-ville and called on plaintiff, and he admitted to them that he had intended to advance $1,500 more.and take a mortgage, but that instead of receiving money from where he had expected, he had had to send more there, and they demanded that he fulfill his agreement, but made no special tender of any mortgage. At that time the Law mortgage and Silvey mortgage of $1,500 each remained upon the premises. Subsequently and about the middle of April, 1885, Silvey and his son and his son-in-law called on the plaintiff, and Silvey demanded that he be released from the note, and offered to transfer his mortgage to plaintiff. The plaintiff refused to release Silvey or to accept his mortgage. In June, 1885, plaintiff asked defendant Paul Van Burén whether the defendants were going to raise that money for him; to which he replied that he did not know, but if he could make a strike he would get it; and on two or three occasions before this action was brought the defendant, Paul C. Van Burén, said to the plaintiff that they had made arrangements to get the money and have it the next spring, and on' one occasion when plaintiff was threatening to sue the note, the defendant, Paul O. Van Burén, said he would do the best he could to raise the money.
    “ This action was commenced in August or September, 1888, and in December, 1888, Silvey executed a satisfaction of his mortgage, and defendant Edgar Van Burén sold the place and two tons of hay for $2,200, realizing about $300 over the Law mortgage and interest.
    “ Upon first reading the pleadings a doubt arose in my mind as to the sufficiency of the answers to constitute a defense. However that may be, the proofs have not satisfied me that any valid, enforcible contract to make the further loan and take a mortgage was entered into, nor that the loan made and the one to be made were inseparable or dependent, nor that plaintiff has failed in the performance of any valid agreement made by him; and I am at a loss to know what kind of a mortgage the defendant Edgar should have tendered to entitle him to specific performance or to damages for non-performance. So far as the agreement between the parties rested in parol, it was void for incurable uncertainty. (Parsons on Contracts [6th ed.], 561, 565; Abeel v. BadcUff,.13 Johns. 297; Baurmam v. Binzen, 16 N. Y. Supp. 342.) Nor was this part so much a part of the note as to vitiate it, or to constitute a complete defense to it except by way of counterclaim. (Batterma/n, v. Pierce, 3 Hill, 171; Abeel v. BadcUff, 13 J. R. 297; Swift v. Opdyhe, 43 Barb. 274; Tipton v. Feiimer, 20 N. Y. 423; Isaacs v. The FT. Y Plaster Works, 67 id. 124.)”

      B. A. Parmenter, for the appellants.

      I. Fraser, for the respondent.
   Herrick, J.:

I am not entirely satisfied with the findings of the referee upon the facts in the case. It seems to me that the preponderance of evidence shows that the agreement upon the part of the plaintiff was to advance an additional $1,500 in the spring of the year following the giving of the note in question, and to then take a mortgage for the whole $3,000, and surrender up the note of $1,500.

But conceding the true state of facts to be as I have suggested, still the agreement is one that does not seem to be capable of being enforced by reason of its uncertainty.

The authorities on that point cited by the referee in his opinion, and also by the court, in the case of Baurmam v. Binzen (16 N. Y. Supp. 342), seem to sustain the contention of the referee upon that point (see, also, Millimam v. Huntington, 68 Hun, 258), and I, therefore, think that judgment should be affirmed. I see no occasion for writing an opinion.

Let judgment be affirmed, with costs.

Mayham, P. J., and Putnam, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Herrick, J.:

license: Public Domain

text:
    Isaac Kilmer, Appellant, v. Peter Messling, Respondent, Impleaded with Joseph Acker.

      Appeals from Justices’ Courts — a Primal error in the amount of the judgment, disregarded.

    Parties should not be encouraged to appeal from judgments of Justices’ Courts where the error is trivial in amount, and such judgments should not be disturbed where substantial justice has been done between the parties.
    Appeal by the plaintiff, Isaac Kilmer, from a judgment of the County Court of Rensselaer county, entered in the office of the clerk of that county on the 12th day of December, 1892, in favor of the defendant, Peter Messling, reversing, upon appeal, a judgment of a Justice’s Court in favor of the plaintiff and against the said defendant.
    The action was brought in a Justice’s Court to recover the sum of forty dollars for work, labor and services alleged by the plaintiff to have been performed by him for the defendants at them request, at an agreed price and otherwise, for goods, wares and merchandise sold and delivered, and for balance due on book account and for balance due on settlement, and interest thereon. The justice rendered judgment in favor of the plaintiff, against the defendant Messling, for thirty-one dollars and nineteen cents damages, and nine dollars and fifteen cents costs. It appeared that the amount of damages was arrived at by allowing two dollars and seventy-five cents for interest upon the sum of twenty-eight dollars and twenty-five cents, to which latter sum evidence on behalf of the plaintiff tended to show that his labor account amounted.

      Nelson Webster, for the appellant.

      Frederick A. Chew, for the respondent.
   Herrick, J.:

Prom an examination of the testimony in this case, I am satisfied that there is sufficient evidence to justify the justice in holding the defendant Messling liable to the plaintiff.

The plaintiff was entitled to interest upon his claim; it may be, however, that the justice has made an error in the computation of the amount. Tbe error, however, is so small that I do not think that substantial justice would be done by reversing the judgment of the justice for that reason. The Code (§ 3063) says, “ The appellate court must render judgment according to the justice of the case, without regard to technical errors or defects, which do not afíect the merits.”

I do not think that parties should be encouraged to appeal where the error in amount is trivial, and incur the expense of the appeal themselves, or subject their adversaries to such expense.

"When substantial justice has been done between the parties, the judgment ¡should not be disturbed.

The judgment of the County Court should be reversed and that of the justice affirmed, with costs.

Mayham, P. J., concurred; Putnam, J., not acting.

Judgment of County Court reversed and that of the justice affirmed, with costs.


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    In the Matter of Bridget Collins, Appellant, v. The Village of Saratoga Springs, Appellant; The Board of Street Commissioners of Saratoga Springs, Respondent.

      Saratoga Springs — milage attorney — stipulation by, as to the ascertainment of damages caused by a change in the grade of a street — board of street commissioners.

    When the charter of an incorporated village confers upon the village in its corporate name the power “ of suing and being sued, pleading and being impleaded, answering and being answered unto, defending and being defended, in all courts and places whatever,” and the village board of trustees is empowered by the general provision of chapter 291 of the Laws of 1870 (title 3, § 8, subd. 5) “to employ an attorney or attorneys, for the transaction of any matter requiring legal skill,” the authority vested in the board of trustees to employ attorneys for the village is, in the absence of any provision to the contrary in the charter, exclusive, and no other village board or official has power to employ attorneys in behalf of the village, and no attorney has the right to represent the village or any board or officer thereof except the attorney designated by the board of trustees.
    A stipulation made, without fraud or collusion, by an attorney for the village, appointed by the board of trustees under such authority, with the attorney for the petitioner in a proceeding brought against the village under chapter 113 of the Laws of 1883, as amended by chapter 281 of the Laws of 1884, for the appointment of commissioners to appraise the damages to he paid by the village, caused by a change of grade of a street affecting the petitioner’s property, will empower the court to make an order appointing such commissioners before the day mentioned in the notice of motion, without notice of such proposed action to the hoard of street commissioners of the village or to an attorney employed by that board, although the powers of commissioners of highways are vested, by the village charter, in the board of street commissioners and the petition for the appointment of commissioners of appraisal and the notice of motion thereon .has been served upon such board of street commissioners as being the “person or persons having complete authority to make such change ” in the grade of the street.
    Appeals by tbe petitioner, Bridget Collins, and by the village of Saratoga Springs, from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of Saratoga county on the 8th day of March, 1893, vacating and setting aside an order theretofore made at Special Term appointing commissioners to appraise the damages to the petitioner’s real property, caused by the change and alteration of the grade of Beekman street in the village of Saratoga Springs.

      Henning <& McCall, for the petitioner, appellant.

      J. F BwamAck and J. T. Brusnihan, for the village, appellant.

      Fdgarr T. Brackett, for board of street commissioners of Saratoga Springs, respondent.
   Herrick, J.:

In 1888 the board of trustees of the village of Saratoga Springs caused the grade of one of the public highways of such village to be changed.

The petitioner ivas the owner of certain premises on such street or highway, which premises, she allegés, were damaged by such change of grade. About the 1st of January, 1893, she presented her claim for damages to the board of trustees of said village, who refused or neglected to pay the same. She thereafter and in February, 1893, moved under chapter 113 of the Laws of 1883, as amended by chapter 281 of the Laws of 1884, for the appointment of commissioners to appraise the damages to her property caused by such change of grade; notice of the motion, and her petition, was served upon the board of trustees and the board of street commissioners of the defendant.

The village of Saratoga Springs appeared by its attorney, and served notice of appearance and retainer upon the attorneys for the petitioner. It was subsequently stipulated between the attorneys for the petitioner and the attorneys who appeared for the village of Saratoga Springs, that the order prayed for in the petition of the petitioner be made, and the commissioners were agreed upon in and by such stipulation, and upon the coming in of such attorneys, and the presenting of such stipulation to the Special Term, an order was made appointing commissioners to appraise the damages claimed.

Subsequently the board of street commissioners, by an attorney of this court employed by them, moved at a Special Term of this court to vacate and set aside the order appointing such commissioners, upon the ground that it was done without the consent of the board of street commissioners, and further claiming that the board of trus-’ tees of the village of Saratoga Springs had no authority to employ counsel who could stipulate in such proceedings without the said board of street commissioners being represented and having a right to be heard thereon; the motion was granted, the order appointing commissioners was vacated, with costs of the motion.

The village of Saratoga Springs was incorporated by chapter 220 of the Laws of 1866, and by such act of incorporation the board of trustees was vested with the powers and duties of commissioners of highways. By chapter 470 of the Laws of 1890, chapter 220 of the Laws of 1866 was amended so as to provide for the appointment of a board of street commissioners, and by such act all the powers and duties in relation to the public streets and highways of said village theretofore vested in the board of trustees was vested in the board of street commissioners. As we have said, these proceedings are taken under chapter 113 of the Laws of .1883, as amended by chapter 281 of the Laws of 1884, which law provides that due notice of the application for the appointment of commissioners shall be given to the person or persons having complete authority to make such change or alteration, and it further provides that the damages awarded shall be a village charge. Although the change of grade was made in 1888, before tbe passage of tbe law providing for the appointment of the board of street commissioners, yet for the purpose of this case I assume that their contention is right, and that they are the persons who, under the statute, are to be notified of the application in question ; but it does not follow therefrom that it is either their duty or their privilege to employ counsel in such proceedings, nor is it necessary that they should consent to an entry of the order appointing commissioners.

The board of street commissioners is not the corporation of itself; it is only one of the branches or arms of the municipality of the village of Saratoga Springs; it is not the whole village government, and except in those particulars in which the statute has clothed such board with specific'powers, it is subordinate to the board of trustees of such village; it has no power or authority, except that which has been specifically granted to it, and that which is necessary to enable it to discharge the duties and exercise the privileges specifically imposed upon and granted to them. They are not specifically authorized to employ counsel, and it is not necessary in the discharge of their duties that they should employ counsel; the employment of counsel is otherwise provided for.

The municipality of the village of Saratoga Springs embraces its president, board of trustees, board of street commissioners, and all other boards and village officers, and they must all be considered together as forming a complete whole. These proceedings are taken against the village of Saratoga Springs, not against the board of street commissioners, and the damages to be awarded are to be paid by the village of Saratoga Springs, not by the board of street commissioners thereof. ,

The fact that notice was directed to be given to such board, no more authorized it to employ counsel and appear in court, than the fact that in many cases notice of claims for damages, or upon contracts, are required to be presented to the city or village clerk, or street superintendent, authorizes such officers to employ counsel and appear in court and defend.

By chapter 220 of the Laws of 1866, such village is created a body corporate under the name of the village of Saratoga Springs, and in and by that name is given the power “ of suing and being sued, pleading and being impleaded, answering and being answered unto, defending and being defended, in all courts and places whatsoever.”

These words; it seems to me, embrace all judicial proceedings that can be taken by or against the village as a corporation. By chapter 308 of the Laws of 1881, the trustees and officers of the villages of this State, created,, by special charters, are given the same powers as are prescribed in any general act for the incorporation of villages within this State, except as such special charter may he in conflict with the provision or provisions of such general acts.

By chapter 291 of the Laws of 1870, title 3, section 3, subdivision 5, boards of trustees are authorized and empowered “ To employ an attorney or attorneys for the transaction'of any matter requiring legal skill.”

Under this law, therefore, the trustees of the village of Saratoga Springs had power and authority to employ an attorney in these proceedings, there being nothing in conflict with the last-quoted statute in the special act by which the village was chartered.

It seems to me that the authority vested in the board of trustees to employ attorneys is exclusive, and that no other board or official has the power to employ attorneys in behalf of the village, and that no attorney has the right to represent the village, or any board or officer thereof, except the attorney designated by the board of trustees.

It is an admitted fact that the board of trustees of the village has employed attorneys to act for it in all legal matters, and that they appeared for the village of Saratoga Springs in these proceedings, and that by a written stipulation, and by afterwards appearing in open court, they consented to the appointment of commissioners in these proceedings.

It seems to me that there can be no question but that the attorneys appointed by and appearing for a municipal corporation stand in the same position as attorneys employed by and appearing for private persons, and that courts have the right to rely upon stipulations and consents made by them in the course of judicial proceedings, the same as upon those made by attorneys appearing for private persons, and that they have the same power and authority to bind the clients for whom they appear, and that in the absence of fraud or collusion, orders entered or proceedings taken, in rebanee upon such appearance and stipulation or consent, will not be set aside.

No charge of fraud or collusion is made in this case; neither is there any claim that the persons appointed commissioners are,unfit or improper persons. Neither is it contended that the petitioner is not entitled to have commissioners appointed to appraise her damages.

The court below seems to have fallen into an error in regard to the service of the notice of the proceedings, and to have held that no notice of the proceedings was given to the board of street commissioners. In the moving affidavit for the vacation of the order it is expressly stated that the petition and notice of motion for the appointment of commissioners to appraise the damages was served upon the board of street commissioners.

Hence there is no jurisdictional defect for want of the proper notice, as held by the court at Special Term, although it seems to me that the neglect to serve upon the proper parties, if there had been such a neglect, is a defect or irregularity that could have been waived by the attorneys appearing for the village. The complaint made in the moving affidavit is that before the day mentioned in the notice of motion, the attorneys for the petitioner and the village attorneys, by mutual consent went into court and consented to the entry of the order, and that no notice of such proposed action was given to the board of street commissioners or the attorney employed by them. None was necessary; the petitioner had given the notice required by statute; the proceedings were against the village; the village appeared by its regularly designated attorneys, and they did what is very common for attorneys to do, agreed, for mutual convenience presumably, to go into court and dispose of the matter on a different day from that mentioned in the notice of motion.

No doubt members of municipal boards, or any other municipal officers, have the right to employ counsel at their own expense to look after legal proceedings and see that the legally appointed attorneys for the municipality do their duty, but the counsel so employed does not represent the municipality, and is not as a matter of law .entitled to notice of proceedings in the court, and in the absence of any charge of neglect of duty on the part of the regularly constituted attorney, full faith and credit will be given to his action by the court.

It follows from tills that the order appointing commissioners was properly and regularly granted, and that the order vacating and setting the same aside should be reversed.

Let an order, therefore, be entered, reversing the order appealed from, with ten dollars costs of motion, and ten dollars costs of this appeal and printing and other disbursements, against the board of street commissioners personally.

Mayham, P. J., and Putnam, J., concurred.

Order reversing the order appealed from, with ten dollars costs of motion, and ten dollars costs of this appeal and printing and other disbursements against the board of street commissioners personally.


text:
    Abram Freligh, Respondent, v. The Directors of the Village of Saugerties, Appellant.

      Tillages incorporated by special chm'ter — actions against, for personal injuries— notice of claim.

    The provision of the general law in relation to incorporated villages (Chap. 291 of the Laws of 1870, as amended by chap. 440 of the Laws of 1889) that “no action shall be maintained against the village for damages for personal injuries, or injury to property, alleged to have been sustained by reason of the negligence of the village, * * * unless the claim shall have been presented, and notice of the time and place at which such injuries were received shall have been filed with the village clerk, or duly presented to the board of trustees,” applies to a village incorporated by a special charter containing no requirement of a notice of a claim for personal injuries, by force of the provision of chapter 308 of the Laws of 1884, that “the trustees and officers of any village of this State created by special charter shall have and possess the same powers as are prescribed in any general act for the incorporation of villages within this State, except as such special charter may be in conflict with any provision or provisions of said general acts.”
    The claims and notice required by the statute as a condition precedent to the bringing of an action against a village corporation for damages for a personal injury must be presented to the village authorities a sufficient time before the commencement of an action to give them a reasonable opportunity to examine the claim after it has been presented; commencing an action the same day, although after, the notice has been presented, is not a compliance with the spirit and intention of the law.

      Appeal by tlxe defendant, tbe Directors of tbe Tillage of Saugerties, from a judgmeixt of tlxe County Court of Ulster county, entered in tbe office of tbe clexxk of that couxxty on tbe 7th day of January, 1892, upoxx tbe verdict of a jury ixx favor of tbe plaintiff, and from an order denying tbe defendant’s motion for a new trial made upon tbe minutes.

      Charles Dmis and Peter Gcmtme, for tbe appellant.

      Ocurroll Whitaher, for tbe respondent.
   Herrick, J.:

The defendant in tbe above-entitled action appeals fx-om a judgment rendered against it in tbe Ulster County Court, upon a verdict of a jury, for tbe sum of $311.26 damages and costs.

Tbe action was brought to x’ecover damages for tbe alleged negligence of tbe defendant in placixxg, causing or permitting to be placed, a large pole in one of tbe defendant’s streets, outside of tbe curb line, against which pole the plaixxtiff’s cart, caxHage or wagon collided, and bis horse, harness and cart were thereby injured.

Tbe accident happened May 10, 1891. On May fourteenth, tbe plaintiff, through bis attorney, xnailed a xxotice, directed “to tbe Board of Directors of tbe Tillage of Saugerties, N. Y.”

The notice was that tbe plaintiff bad placed in tbe bands of tbe writer a claim against tbe village for tbe loss of a wagoxx, aixd for injuries to bis person and property by reasoxx of its coxxxixxg in contact with a pole which stands in Post street. Such notice or letter coxxtaixxed xxo statement of tbe time when tbe accideixt happened, nor the particular portion of Post street where it happened.

It appears that tbe board of directors of Saugerties has regular meetings once a month; that it bad its regular monthly meeting on the fourth day of May; tbe next meeting thereafter was a special meeting, held May twenty-first; at that meetixxg this notice or letter was presented, and on tbe saxne day a summons, dated May 20, 1891, was sei’ved upon the defendant’s president.

Objection was made in behalf of tbe defendant to tbe plaintiff’s notice or letter being received in evidence, upon tbe grounds that it bad not been pleaded in tbe complaint; that the time of tlxe accident was not stated, and that it was not such a dexnand as tbe law required; the objection was overruled, and it was received in evidence.

The court held that as a notice it was insufficient; it held that the act of 1884, hereafter referred to, did not apply to the defendant;. that defendant being incorporated under a special act or charter, which did not require any notice or claim for personal injuries to be given to it, that, therefore, no notice was to be given before commencing an action, but allowed the plaintiff to amend his complaint so as to plead that he had given notice under the law of 1889, so that plaintiff could raise the question as to whether the notice was sufficient. Chapter 308 of the Laws of 1884 reads as follows: “ The trustees and officers of any village of this State created by special charter shall have and possess the same powers as are prescribed in any general act for the incorporation of villages within this State, except as such special charter may be in conflict with any provision or provisions of said general acts.”

This law was evidently intended, as far as possible, to make the general laws of the State in relation to villages applicable to all villages of the State, except where there is something in the special charter granted to a village in conflict with such general law. It was intended to have one harmonious system of law in relation to the villages of the State.

In 1889, by chapter 440, the general law in relation to villages was amended, as follows: “ No action shall be maintained against the village for damages for personal injuries, or injury to property, alleged to have been sustained by reason of the negligence of the village, or of any officer, agent or employee thereof, unless the same shall be commenced within two years after the cause of action therefor shall have accrued, nor unless the claim shall have been presented, and notice of the time and place at which such injuries were received shall have been filed with the village clerk, or duly presented to the board of trustees, within one year after such cause of action shall have accrued.”

That became, and was at the time of the happening of the accident in question, a part of the general village law of the State. When we come to apply chapter 308 of the Laws of 1884, we apply it to the General Act for the Incorporation of Villages as it is at the time of the happening of the event which calls for a construetion of the law; the law-in relation to villages, at the time of the happening of this accident, was chapter 291 of the Laws of 1870, as amended by chapter 440 of the Laws of 1889, with which we are to couple chapter 308 of the Laws of 1884, and read them as one law, all of them having relation to the same subject, and intended for the same purpose, and in all its provisions, I think, applied to the defendant.

But it is said that chapter 308 is a grant of power to trustees and officers of villages incorporated by special charter, and that the provisions of chapter 440 of the Laws of 1889 do not come within the meaning of the word powers; ” that they do not confer any authority or ability upon villages or village officers, but are restrictions or limitations upon the acts of third persons against villages and village officers; the contention is, that all that was meant by the use of the word “ powers,” was ability to act, capacity to do something positive. I think that is too narrow a meaning, that the Legislature intended something broader.

The word power ’ is sometimes used in the same sense as right.’ ” (Rapalje & Lawrence’s Law Dictionary.)

Sometimes the liability to be sued is spoken of as a corporate power, in defining the powers of corporations.” (4 Am. &Eng. Ency. of Law, 188, 189.)

The capacity to be acted upon in some particular manner, is also one of the definitions of power.” (Worcester’s Dictionary.)

It seems to me, therefore, that in chapter 308 of’the Laws of 1884, when the Legislature said that the officers of any village incorporated by a special charter shall have and possess the same powers, as are prescribed in any general act for the incorporation of villages, it meant that such officers should thereby not only have the same ability to act, but the same capacity to be acted upon, and the same rights as are granted to villages or the officers of villages incorporated under the general laws of the State; and, as under the general laws of the State, an action for an injury could not be brought-against a village until a notice had been served, that the plaintiff in this action could not commence his case without serving the statutory notice. The presentation of such notice is a condition precedent to the bringing of an action. (Reining v. City of Buffalo, 102 N. Y. 308; Curry v. Buffalo, 135 id. 366.)

In this case the notice is defective in that it did not specify the time of the accident, and I also think it was defective in that it was not more particular in specifying the place where the accident happened.

The notice was directed to tbe board of directors; of course it could not reach them until they met; they met on tbe evening of tbe twenty-first of May, and that same day the suit was commenced. Even if the notice bad been regular in form, I do not tbink that that would have been a compliance with tbe statute; its purpose is to give tbe village authorities an opportunity to investigate tbe claim, and a chance to pay it if just, and so avoid tbe expense of litigation.

To receive tbe benefit intended by tbe statute, they must have a reasonable opportunity to examine the claim after it lias been presented; commencing an action the same day, although after tbe notice has been presented, is not a compliance with tbe spirit and intention of tbe law.

Tbe plaintiff having failed to comply with the law requiring him to give notice of bis claim, he is not entitled to maintain bis action, and judgment should be reversed, with costs.

Mayham, P. J., and Putnam, J., concurred.

Judgment reversed, new trial granted, costs to abide tbe event.


text:
    Darwin W. Sherman, Respondent, v. Lyman Jenkins, Appellant.

      Assignment for the benefit of creditors, by a copa/rtnership — deed of assignment signed by one pa/rtner only — replevin of the individual property of a non-signing partner — effect of a judgment in an action by the non-signing pa/rtner overruling a demurrer to a defense set up in the answer of the assignee.

    When, in an action of replevin brought against the assignee under a general assignment for the benefit of the creditors of a copartnership, signed by one of the partners, to recover the possession of personal property alleged by the plaintiff to have been purchased by him from a partner who had not signed the deed of assignment and to whom it is alleged the property belonged individually, it appears that the property in question was, prior to the assignment, in the possession of and used by the copartnership in its business, with the knowledge of the plaintiff’s transferrer, the plaintiff cannot assert, as against the creditors of the copartnership, the alleged individual ownership of the property and that it was not copartnership property.
    When, in such an action, it appears that the copartnership assignment, executed to the defendant by one of the partners, is valid upon its face and shows that the person signing it was authorized to sign it, it is not necessary for the assignee for creditors io prove that the plaintiff’s transferrer authorized or consented to his copartner’s executing it for him, but if in fact there was no such authority or consent given the burden of proving such fact rests upon the plaintiff.
    When the answer of the assignee, in such an action of replevin, sets up as a defense the pendency of an action brought against him by the plaintiff’s transferrer, after the execution of the general assignment, seeking to have the property in suit adjudged the individual property of such transferrer, and that an injunction had been obtained in such other action prior to the plaintiff’s demand and with his knowledge, and was still in force, restraining the defendant from disposing of the property in suit, and such defense has been demurred to but the demurrer has been overruled by a judgment remaining of record unreversed, and the plaintiff has failed to avail himself of the permission of replying to such defense, such adjudication upon the admission by the demurrer of the facts alleged as a defense is binding upon a referee on the trial of the action of replevin, as a determination that there was no unlawful detention of the property by the defendant.
    Appeal by the defendant, Lyman Jenkins, from a final judgment of the Supreme Court in favor of the plaintiff, entered in tlie office of the clerk of Warren county on the lYth day of August, 1892, upon the report of a referee.
    The action was in replevin, brought to recover the possession of four horses and two sleighs, held by the defendant as assignee for the benefit of the creditors of a copartnership styled the “New York and Oriental Tea Company,” composed of William H. Robinson and Godfrey R. Martine, under a deed of assignment executed in the firm name by William H. Robinson, and accepted by the defendant. The deed of assignment was accompanied by a notary’s certificate that its execution was acknowledged by Robinson, and that the notary “ knew William H. Robinson to be a member of the firm of New York and Oriental Tea Company, and he also acknowledged that he was duly authorized and empowered to execute and sign for said New York and Oriental Tea Company the foregoing instrument.”
    The plaintiff claimed that the property in suit had belonged to Godfrey R. Martine individually, and not to the partnership, and that he had purchased it from Martine.

      T. IF. McArthur, for the appellant.

      A. Armstrong, Jr., for the respondent.
   Herrick, J.:

The assignment to the defendant on its face was a valid assignment ; the burden, therefore, was on the plaintiff to prove that it was invalid for reasons outside of the record. (Hooper v. Baillie et al., 118 N. Y. 413.)

I have been unable to find anything in the evidence in the case proving, or tending to prove, that the member of the copartnership who signed the instrument of assignment, was not authorized to do so by his copartner, as set forth in the acknowledgment. The defendant would, therefore, lawfully become possessed of all the copartnership property.

The plaintiff’s assignor was a member of said copartnership. The property in question was in the possession of and used by said copartnership in the transaction of its business; it must have been so with the knowledge and consent of plaintiff’s assignor, and as against the creditors of the copartnership the plaintiff ought not to be permitted to assert the alleged individual ownership of his assignor therein, and that it was not copartnership property.

The defendant represents the interests of the creditors of said copartnership.

I think the referee erred in the view taken by him of the assignment. He seems by his qualifications of the defendant’s request to find that the copartnership executed an assignment for the benefit of creditors, to the defendant, to have held that it was necessary for the defendant to prove that plaintiff’s assignor executed such assignment, or authorized or consented to his copartner doing it for him.

This, as we have already seen, was not incumbent upon the defendant to show, the assignment being valid upon its face, and showing that the person signing it was authorized to sign it. If in fact there was no such consent and authority given, it was for the plaintiff to prove that fact, which, he has failed to do.

The referee also erred in his holding in regard to the third and fourth counts in defendant’s answer.

They had been demurred to by the plaintiff, and the demurrers overruled, and the plaintiff had failed to avail himself of the permission granted to him of replying to such counts in the answer; the judgment upon the demurrers was of record, and, so remaining on the record, was an admission of the facts set forth in such cou'nts. (Cutler v. Wright, 22 N. Y. 472.)

The third count of said answer rlleges that the plaintiff’s assignor and another commenced an action against this defendant and another, after said assignment, in which they alleged that plaintiff’s assignor was the owner of the same property which is in question in this action, and demanded, among other things, that he be so adjudged the owner of said property, and that the defendant therein be directed to deliver the same to plaintiff’s assignor, and that such action was still pending against this defendant at the time of the commencement of this action, and so commenced before the plaintiff claims to have acquired his title to the property in question; that plaintiff procured his alleged title to said property during the pendency of such action, and with full knowledge that it was pending.

The fourth count in said answer alleges that in the action, set up in the third count, an injunction was granted enjoining and restraining the defendant from disposing of or interfering with said property, and that the demand made upon defendant by the plaintiff for the property in question herein was made while said injunction or order was in force, and with the knowledge by the plaintiff of the pendency of said action, and of said order.

These things so alleged being admitted by the demurrer, as before stated, there was no wrongful detention of the property by the defendant, even admitting that he had no lawful title to it under the assignment, and as there was no unlawful taking of the property by the defendant originally, there is nothing, it seems to me, upon which an action of replevin can be sustained. .

The decision of the Special Term upon the demurrer being unreversed, was binding upon the referee, and as to him it was a final decision in the case as to the question decided by it, and the referee erred in considering it an open question to be passed upon by him. For these errors, judgment should be reversed, the referee discharged, and a new trial granted, costs to abide the event.

Mayham, P. J., and Putnam, J., concurred.

Judgment reversed, new trial ordered, referee discharged, costs to abide event.


author: Macomber, J.

text:
    In the Matter of the Assignment of William Sutcliffe to Hadley Jones for the Benefit of Creditors.
   Order of the special county judge of Cayuga county appealed from reversed, with costs payable out of the fund and the motion granted.

Opinion by

Macomber, J.

(Opinion not published at request of Ma-comber, J.)


text:
    William P. Mannion, Appellant, v. Jesse Barber, Respondent.
   Judgment appealed from affirmed.


text:
    Railroad Equipment Company, Respondent, v. Mitchell S. Blair, as Receiver of the Rochester, Hornellsville and Lackawanna Railroad Company, Appellant.
   Judgment appealed from affirmed.


text:
    Adolph Scheftel, Respondent, v. Jesse W. Hatch, Appellant.
   Judgment and order appealed from affirmed, on the opinion of Rumsey, J., at Circuit.


author: Per Curiam:

text:
    Albert G. Smith, Plaintiff, v. Charles E. Mott, Defendant.
   Defendant’s motion for a new trial granted, costs to abide event.

Per Curiam:

On a former hearing of this motion (48 N. Y. St. Repr. 300), it was considered that although evidence of the annual reports of the “ Bohemian Oat and Cereal Company,” filed in the office of the Secretary of State of Michigan, may have been improperly excluded, yet that the defendant was probably not prejudiced by such ruling. A further examination of the case of Matson v. Blossom (18 N. Y. St. Repr. 726), affirmed without opinion by the Court of Appeals, leads us to the conclusion that that evidence should, have been received and submitted to the jury upon the question of fraud in procuring the note from the defendant. And such being the case, the exception to the exclusion of such evidence should be allowed, and the motion for a new trial granted.


text:
    Jane E. McLaughlin, Appellant, v. Edward Webster and Others, Executors, etc., Respondents.
   Judgment appealed from affirmed.


text:
    Fred A. Smith, Respondent, v. The New York Stock and Produce Clearing House Company, Appellant.
   Judgment appealed from affirmed, on the opinion of Rumsey, J., at Circuit.


text:
    Archie D. Sanders and Another, Appellants, v. Pottlitzer Bros. Fruit Company, Respondent.
   Judgment appealed from affirmed, on the opinion of the referee.


text:
    Commercial Bank, Respondent, v. H. Israel Weinberg and Others, Appellants, Impleaded, etc.
   Judgment appealed from affirmed, with costs, on the opinion of the referee.


text:
    Annie E. Lick, Respondent, v. The Town of Moravia, Appellant.
   Judgment and order appealed from affirmed.


text:
    Eliza Hiltzinger, Respondent, v. Charles T. Kalb, Appellant.
   Judgment and order appealed from affirmed.


text:
    Peter McGarry, Respondent, v. The City of Buffalo, Appellant.
   Order appealed from affirmed, with costs, on the opinion of Childs, J., at Circuit.


text:
    Celinda A. Fulton, Respondent, v. George Macnoe, Appellant.
   Interlocutory judgment appealed from affirmed, on authority of Goetz v. Ballou (64 Hun, 490).

Haight, J., not voting.


text:
    The People of the State of New York ex rel. Frank Allen, Respondent, v. Alfred H. Neal, Superintendent of Erie County Penitentiary, Appellant.
   Order of the county judge of Erie county appealed from reversed, and relator remanded to the custody of the superintendent of the Erie County Penitentiary. (Laws of 1892, chap. 401, § 35; Code Civil Procedure, § 2038.)


text:
    William C. Borland, Appellant, v. John Hahn, Respondent, Impleaded, etc.
   Judgment appealed from affirmed, on the opinion of the referee.


text:
    The People of the State of New York, Respondent, v. Israel Adler, Appellant.
   Judgment and conviction of the Monroe Court of Sessions appealed from affirmed, and case remitted to that court to proceed thereon.

Dwight, P. J., not voting.


text:
    Alvira M. Clifford, Appellant, v. Sarah A. Gates and Others, Respondents.
   Judgment affirmed, with costs, on the opinion of Childs, J., at Special Term.


text:
    Etta L. Alexander v. The Rochester City and Brighton Railroad Company.
   Motion for new trial denied and judgment ordered for the defendant upon the nonsuit.


text:
    In the Matter of the Widening of Belmont Park, etc.
   Order and report appealed from affirmed, with costs.


text:
    Abigail Depuy, Appellant, v. Jane Cook, Respondent.
   Judgment appealed from reversed on the opinion of Bheinhardt v. Fritzsche, decided at the present term.

Bradley, J., not voting.


text:
    David E. Barrows, Appellant, v. Henry Webster, Respondent.
   Judgment affirmed on the opinion written upon a former hearing (21 N. Y. Supp. 828).


text:
    Marion D. Fenner, Appellant, v. L. Hayden Humphrey and Others, Respondents.
   Order of the Wyoming County Court appealed from affirmed, with ten dollars costs and disbursements.


text:
    Maurice D. Fenner, Appellant, v. L. Hayden Humphrey and Another, Respondents.
   Order of the Wyoming County Court appealed from affirmed, with ten dollars costs and disbursements.


text:
    Eleanor D. Gaylord, as Administratrix, etc., Respondent, v. Nelson Beardsley, Appellant.
   Order appealed from affirmed, with ten dollars costs and disbursements on Mem, of Vann, J., at Special Term.


text:
    Motions.
    Richard Gibson v. Henry J. Gibson and Others.
   Former decision amended so as to direct that the costs and disbursements be paid out of the income of the fund provided for in the fourth item of the last will and testament of Henry B. Gibson, deceased.


text:
    Mary Moore v. The Citizens’ Mutual Life Association.
   Motion to dismiss appeal denied.


text:
    Margaret A. Root, Respondent, v. John R. Strong, as Executor, etc., Appellant.
   Motion to dismiss appeal on account of the non-service of printed papers granted on default.


text:
    Thomas O. Swanson, Respondent, v. Charles P. Hinton, Appellant.
   Motion to dismiss appeal on account of the non-service of printed papers granted on default.


text:
    Frank D. Wright, Respondent, v. George Martin and Another, Appellants.
   Motion to dismiss appeal and for judgment on account of non-service of printed papers denied.


text:
    Valentine Fromm v. Daniel Ide.
   Motion for leave to appeal to the Court of Appeals granted.


text:
    Alonzo C. Monson, as Executor, etc., Respondent, v. The New York Security and Trust Company, as Trustee, etc., Appellant, Impleaded with Reuben B. Withers and Others, Respondents.
   Judgment in this case is affirmed (with costs, [1] to the plaintiff, [2] to the defendant, Reuben B. Withers and others, [3] to the United States Trust Company and to the New York Security and Trust Company, as trustee, payable out of the estate of Reuben Withers), upon the opinion of Mr. Justice Patterson at Special Term.


text:
    Hattie E. Bucki, Respondent, v. Charles E. Bucki, Appellant.
   Order affirmed, with ten dollars costs and disbursements.

Per Curiam:

The allegations in the complaint, if supported by evidence on the trial, will entitle plaintiff to the judgment prayed for. A situation, therefore, was presented on the motion which authorized the court, in the exercise of a proper judicial discretion, to make an allowance for costs and alimony pending the action. The amount awarded was justified, we think, by the affidavits before the court. The order appealed from should be affirmed, with ten dollars costs and disbursements.


text:
    National Park Bank, Appellant, v. Moses S. Levy, Respondent, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Otillie Sentennis and Others, Appellants, v. Edward R. Ladew and Others, Respondents.
   Order affirmed, with ten dollars costs and disbursements.


text:
    William E. Wamsley, Respondent, v. H. L. Horton & Co., Limited, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Selig Maass and Others, Appellants, v. Abraham Falk and Others, Respondents.
   Judgment affirmed, with costs, on opinion of the court below.


text:
    In the Matter of John K. Van Ness.
   Referred to F. S. Wait to take proofs.


text:
    Katherine Palmer, Respondent, v. George Jones, Appellant.
   Motion denied, with ten dollars costs.


text:
    The De Bardeleben Coal and Iron Company v. Buena Vista Iron Company.
   Judgment affirmed.


text:
    Herman Gernau, Administrator, etc., Appellant, v. The Oceanic Steam Navigation Company, Respondent.
   Judgment affirmed, with costs.

Per Curiam:

There seems to have been no substantial change in the evidence which was presented to the court upon the prior appeal, and that which is contained in the present record, except perhaps to strengthen the case upon tne part of the defendants. It was then held that there was no evidence of negligence upon the part of the defendants sufficient to go to the jury, and, therefore, it seems unnecessary to rediscuss the same. Some exceptions are called to our attention by the counsel for the appellant, which might have needed notice had the case gone to the jury; but they do not seem in any way to have been injurious, in view of the fact that the plaintiff’s complaint was dismissed. The judgment appealed from should be affirmed, with costs.


text:
    Joseph Arthur, Respondent, v. Harry Lacy, Appellant.
   Motion granted, with ten dollars costs.


text:
    Elizur V. Foote, Respondent, v. The Metropolitan Elevated R. R. Co. and Others, Appellants.
   Judgment affirmed, with costs.—

Per Curiam:

The question involved having been previously decided by the General Term, the judgment should be affirmed, with costs. (See 58 Hun. 478.)


author: Van Brunt, P. J. :

text:
    Peter N. Ramsey, Appellant, v. Telemaque T. Timayenis, Respondent.
   Order affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J. :

We see no reason for interfering with the order appealed, from or for differing with the conclusions arrived at by the learned judge who heard the motion resulting in the order, and, which are embraced in nis memorandum contained in the record. There seems to he no question whatever but that the contentions; upon the part of the plaintiff are absolutely inconsistent with the statements in writing made by him. The letter of the 20th or July, 1891, in answer to the defendant’s letter of the 17th of July, 1891, is in manifest contradiction to the claims now advanced upon the part of the plaintiff. And it seems to be almost incredible that the plaintiff, after he had learned that he had been swindled in the manner claimed by him upon this application, should have written the letter of tne 3d of February, 1892, months after the advances which formed the subject-matter of this action were made. The order should be affirmed, with ten dollars costs and disbursements.


text:
    Wealthy A. Stevens, as Guardian, etc., Respondent, v. Clinton G. Baker, Appellant.
   Judgment affirmed, with costs.


text:
    Philip Schuyler, Respondent, v. Ernest Curtis and Others, Appellants.
   Judgment affirmed, without costs.


text:
    Luz Diaz Govin, Plaintiff, v. Luciana Govin de Miranda, Defendant.
   Exceptions sustained as to the amount Of damages for detention. All other exceptions overruled, and judgment directed upon the verdict for a return of the bonds mentioned in the complaint; and in default of such return, for the value of said bonds, $9.478, and the verdict for damages for detention modified by limiting such damages to legal interest upon said amount from the date of demand, which appears to be the 13th of January, 1892, to the date of trial, without costs of this application.


text:
    Felix St. Anna Govin and Others, Plaintiffs, v. Luciana Govin de Miranda and Others, Defendants.
   Exceptions sustained as to the amount of damages for detention. All other exceptions overruled, and judgment directed upon the verdict for a return of the bonds mentioned in the complaint, and. in default of such return, for the value of said bonds, $17,950; and the verdict for damages for detention modified by awarding as such damages, legal interest upon said amount from the date of demand, which appears to be the 13th of January, 1892, to the date of trial, without costs of this application.


text:
    William Baumgarten v. William G. Nichols and Others.
   Application granted.


text:
    William L. Reynolds v. Sylvester H. Knecland.
   Motion denied.


text:
    Sells E. Woodhull v. The Mayor, etc.
   Motion granted upon payment of ten dollars costs.


text:
    Decisions handed down July 8, 1898.
    The People of the State of New York ex rel. United Lines Telegraph Company v. Frank Campbell, Comptroller of the State of New York.
   Decision of Comptroller confirmed, with costs (see opinion of Putnam, J., with second case below).


text:
    The People of the State of New York ex rel. French Atlantic Telegraph Company v. Frank Campbell, Comptroller of the State of New York.
   Decision of Comptroller confirmed, with costs (see opinion of Putnam, J., with next case).


author: Putnam, J.:

text:
    The People of the State of New York ex rel. Commercial Cable Company v. Frank Campbell, Comptroller of the State of New York.
   Decision of Comptroller confirmed, with costs.

Putnam, J.:

It being represented to us by counsel for the respective parties that the facts in the above cases are substantially the same as in The People ex rel. Postal Telegraph Cable Company v. Campbell, a Comptroller, for the reasons stated in the opinion written in that case, the decision in each of the above cases should be confirmed, with costs.


text:
    Kate Hall, as Administratrix of Lyman Hall, Deceased, Respondent, v. Franklin Thompson, Appellant.
   Judgment reversed, referee discharged and a new trial granted, costs to abide the event.—

Putnam, J.:

This action was brought to foreclose a mortgage executed by defendant to plaintiff’s intestate, Lyman Hall, on or about March 15, 1876, for $330. The defendant asserted in his answer that the bond and mortgage set out in the complaint were given to secure the payment of $100 to said deceased, and the sum of $230 to his brother, John Hall, and further alleged payment in full of said sums to said deceased and John Hall. The issues were referred and the referee found in favor of the plaintiff for the full amount of the mortgage and interest. We are of the opinion that the conclusions reached by the referee are not sustained by the testimony given upon the trial, and that the judgment should be reversed on tbe evidence. Defendant’s witness, John Hall, the brother of deceased, who appears to be a banker and a reputable witness, testified that he drew the mortgage in suit and the accompanying bond. Said papers were given to secure a debt of $100 to deceased, and the sum of $230 to the witness. That deceased afterwards admitted to him the payment of the said $100, and that the witness had been fully paid the amount of the mortgage debt coming to him. Four other witnesses testified to statements by or conversations with deceased, corroborating the testimony of said John Hall. Such evidence, tending to show the payment of the mortgage, was strengthened by the lapse of time since the execution of the instrument. It was executed March 15,1876, and the action was commenced'in 1891. According to the theory of the plaintiff, which was adopted by tbe referee, tbe mortgage ran a period of fifteen years without any payment of either principal or interest. Although the action was not barred by the Statute of Limitations, yet it is well settled that the lapse of time may be properly considered in connection with other evidence on a question of payment. (McAuley, as Survivor, v. Palmer. 125 N. Y. 744.) The evidence above mentioned, showing payment of the said bond and mortgage, seems entirely uncontradicted. The fact that the mortgage contained a clause stating that it was given for the purchase money of said property does not contradict the testimony given by John Hall or the other witnesses, in the absence of proof that John Hall did not own or was not interested in the real estate conveyed to defendant and on which he executed the mortgage, or in the purchase price thereof. We conclude that the judgment should be reversed on the evidence and a new trial granted, costs to abide the event.


text:
    Charles E. Bullard and Another, Appellants, v. Mary C. Harris, Respondent, Impleaded, etc.
   Judgment reversed, new trial ordered, costs to abide the event.

Per Curiam:

This is the same case as that of Bullard v. Kenyon, in which a separate judgment was entered in favor of the defendant Harris against the plaintiff Bullard. Following the decision in that case, made at this term of court, judgment herein should be reversed and a new trial ordered, costs to abide the event.


text:
    Charles E. Bullard and Another, Appellants, v. James H. Kenyon and Others, Respondents.
   Judgment reversed, new trial ordered, costs to abide event.

Per Curiam:

Heretofore the judgment of the trial court in this case was affirmed by this court upon appeal. Subsequently, at the Februaiy term, 1893, of this court, a reargumeut of the appeal was ordered. Upon a reconsideration of the case, we are satisfied that it comes plainly within the rules laid down in Karst v. Gane et al. (136 N. Y. 316), and that, following that case, the judgment herein should he reversed and a new trial ordered, costs to abide the event.


text:
    Daniel H. Deyoe, Appellant, v. Herbert J. Woodworth and Others, Respondents.
   Judgment affirmed, with costs.

Mem. by

Herrick, J.:

This is a companion case to Deyoe v. Ewen, decided at this term of the court, and the questions involved are the same. The judgment appealed from is affirmed, with costs.


author: Per Curiam :

text:
    David J. Johnston, Respondent, v. John Garside, Mayor, etc., and Others, Appellants.
   Order affirmed, with costs and disbursements.

Mem.

Per Curiam :

The action was an equitable one, and upon that ground, as well as the change in the law, by which the parties were legislated out of office, before' the trial of the action, the Court at Special Term could allow a discontinuance, without costs. The application was addressed to the discretion of the court below, and we are of the opinion that no such an abuse of discretion, or misapprehension of the facte, or of the rights of the parties, appear in the case, as would justify a reversal of the order. (Crosby v. Fitzpatrick, 23 Wkly. Dig. 35; Morss v. Hasbro > tele, 13 id. 393; Byron v. Dui'rie, 6 Abb. N. C. 135; Smith v. Banker, 3 How. 142.) The order should be affirmed, with costs and disbursements.


text:
    Charles F. North and Others, Respondents, v. John Garside, Mayor, etc., and Others, Appellants.
   Order affirmed, with costs and disbursements. (Same Mem. as in preceding case.)


text:
    Clara M. Jacobie, Appellant, v. Henry Mickle and Others, Respondents.
   Judgment affirmed, with costs.

Per Curiam :

We think the court below reached a correct conclusion. In the foreclosure action brought by Samuel T. Guilford against the plaintiff and others, on the second bond and mortgage, plaintiff was made a party defendant, and did not answer or demur, and judgment in the action was regularly and properly entered for the sale of the mortgaged premises, and for the payment of plaintiff’s bond and mortgage out of the first proceeds. We think, under the circumstances, plaintiff being a party to that action, and not having answered or demurred, is bound by the judgment. (See Guilford v. Jacobie, 52 N. Y. St. Repr. 837, 838.) It would seem almost absurd to allow the plaintiff to obtain another judgment for the sale of the mortgaged premises. It is suggested that the Guilford judgment has been reversed. But we are compelled to decide the question submitted to us on this appeal on the facts appearing in the printed case. The fact of the reversal of said judgment does not appear in the case and did not appear on the trial in the court below. The proper remedy for the plaintiff under the circumstances is probably by motion in the court below. (Parhhurst v. Berdell, 110 N. Y. 392.) The judgment should be affirmed, with costs.


author: Per Curiam

text:
    Henry W. Sage and Others, Appellants, v. David C. Burton, Respondent.
   Judgment reversed and a new trial granted, costs to abide the event.

Per Curiam

(Herrick, J., not acting): The defendant failed to show any authority in Abbott to indorse the check. On the contrary, it appeared that he had no such power. Certainly without any proof of error or mistake in plaintiff’s account, which is admitted by the answer, he was not shown to have possessed any power, as agent of plaintiffs, to receive a check for $100 less than plaintiffs’ conceded account in payment thereof. The check with which defendant claims to have paid the account set out in the complaint was produced on the trial by defendant, with a forged indorsement, and hence was then in defendant’s possession unpaid. We think defendant did not show payment of plaintiffs’ conceded account, and hence that it was error to nonsuit. The judgment should be reversed and a new trial granted, costs to abide the event.


text:
    Michael P. Conboy, Respondent, v. Mary Cunningham and Others, Appellants.
   Judgment affirmed, with costs to be deducted from share of appellant on proceeds of sale.

Herrick, J.:

The alleged errors sought to be reviewed upon this appeal, are those claimed to have been made by the referee in making and stating the accounts between the parties for rents collected and commissions charged for their collection and for moneys disbursed. The action is for a partition of land of which the parties were tenants in common. The alleged errors are errors of fact. The evidence as to rents collected, and moneys paid out, is not entirely satisfactory, but the referee had the witnesses before him in person, and heard their statements as to the manner in which they made out their accounts. I see no reason for believing that we could reach a conclusion any more satisfactory than the one at which he has arrived. Judgment should be affirmed, with costs or this appeal to be deducted from the share of the appellant in the proceeds of sale.


text:
    Betsey E. McClellan, Appellant, v. Lucy Jane Zwingli, Respondent.
   Judgment affirmed, with costs.—

Mem.

Per Curiam:

We think the finding of the referee that the deed under which plaintiff claimed title, was not shown to have been delivered, was erroneous. Being properly, acknowledged and in the possession of the plaintiff delivery will be presumed. But the error of the referee in the regard above mentioned did not injure plaintiff, for the reason that she failed to show any title to the premises in suit. The deed referred to was received in evidence by the referee, and after plaintiff had introduced the same she rested without any evidence showing title in the grantors named in said deed or any possession in said grantors of that portion of the premises occupied by the defendant. In Abbott’s Trial Evidence (p. 705) the proof required in such a case is correctly stated, viz.: “ Plaintiff rely in"* on a conveyance to him from a grantor other than the State must show that his grantor had either title or possession claiming title.” The fact that the deed under which plaintiff claimed was more than thirty years old does not change the rule, which requires in such a case proof of the title or possession of the grantors. This is especially true in the absence of evidence showing that the deed antedated the occuÍiancy of the defendant in the land in suit, n this case there was no evidence "whatever showing the title of plaintiff’s grantors to the premises occupied by defendant or that said grantors had ever been in possession thereof. The judgment should be affirmed, with costs.


author: Herrick. J.:

text:
    John Farley and Emma Farley, Respondents, v. The City of Amsterdam.
   Judgment affirmed, with costs.

Mem. by

Herrick. J.:

The case of Folmsbee v. The City of Amsterdam (66 Hun, 214), it seems to me is decisive of this, and that there is no occasion for an opinion. The judgment should be affirmed, with costs.


author: Barnard, P. J.:

text:
    Horace W. Garland and Another, Respondents, v. Cortlandt S. Van Rensselaer, Appellant, Impleaded with Another.
    “ Decision” authorizing a, final judgment on a demurrer.

    An order for judgment upon a demurrer is a decision sufficient under section 1010 of the Code of Civil Procedure to justify an entry thereon of a final judgment.
    Appeal by the defendant, Cortlandt S. Yan Rensselaer, from a judgment of the Supreme Court, entered in the office of the clerk of the county of “Westchester on the 1st day of March, 1893, and from an order entered in said clerk’s office on the 28th day of March, 1893, denying a motion to vacate said judgment.

      Howard Allison and Isaac _Y. Miller, for the appellant.

      Charles P. Cowles and Justus A. P. Cowles, for the respondents.
   Barnard, P. J.:

The defendant Yan Rensselaer demurred to the complaint of the plaintiffs. The demurrer was overruled and judgment ordered in favor of the plaintiffs therein, with leave to the defendant to answer within twenty days, upon the payment of twenty dollars costs. The order was entered on the 28th of January, 1893, and a copy with notice of the entry thereof was served on the attorney for the defendant on the 3d of February, 1893. The costs were not paid and no answer was served within the time. The plaintiffs entered judgment upon the demurrer in their favor March 1, 1893. The demurring defendant made a motion to set aside this judgment as irregular, in that no decision had been made and filed under sections 1010 and 1021 of the Code. The order for judgment was a sufficient decision under section 1010 of the Code. (Eaton v. Wells, 82 N.Y. 576 ; Wood v. Lary, 124 id. 83.)

The order for judgment was final if the terms were not accepted, and the judgment was regular under section 1021 for that reason.

The order should be affirmed, with costs and disbursements.

Pbatt, J., concurred; DyicMAN, J., not sitting.

Order affirmed, with costs and disbursements.


text:
    Horace W. Garland and Another, Respondents, v. Cortlandt S. Van Rensselaer, Appellant, Impleaded with Another.

      Mechanic’s lien — proper parties to its foreclosure — “owner” within section 5 of chapter 343 of 1885.
    An owner of land, wlio has entered into a contract for the sale thereof with a company which has purchased certain material for the building of a house thereon, is, under section 5 of chapter 343 of the Laws of 1885, to be deemed the owner of the land until the deed thereof has been actually delivered, and is a proper party to an action brought for the foreclosure of & lien filed by the. party selling such material to the contract vendee.
    The company, the contract vendee, is also a proper party defendant in such an action, but the sureties to the bond given by the owner, under section 34 of that act, in order to procure an order discharging the lien, are not necessary parties to an action for the foreclosure thereof, and the principal debtor can be properly sued alone upon such bond.
    Appeal by the defendant, Cortlandt S. Van Rensselaer, from a jiidgment of tlie Supreme Court, entered in the office of the cleric of the county of 'Westchester on the 1st day of March, 1893, overruling his demurrer to the plaintiff’s complaint, and from an order entered in said clerk’s office on the 28th day of March, 1893, denying a motion to vacate said judgment.
    The action was brought for the foreclosure of a mechanic’s lien on certain premises in the town of Harrison, Westchester county, New York, the complaint in which alleged that Cortlandt S. Van Rensselaer had entered into a contract for the sale of the land in question with the defendant, The Commonwealth Security and Improvement Company, which company was in lawful possession of the premises under such contract, and before the performance and completion of the same the plaintiffs, at its request, and with the knowledge and consent of the said Cortlandt S. Van Rensselaer, built and erected upon the premises a certain building and furnished and supplied therefor all the labor and material used in the erection and construction of the same.
    That thereafter, pursuant to the provisions of the statute, a notice of lien was filed describing the said land, and that subsequent to the filing of such notice The Commonwealth Security and Improvement Company, being the vendee in possession of said premises by authority of the aforesaid contract, relinquished and released to the said Cortlandt S. Van Rensselaer all its right, title and interest in and to said premises, together with the buildings and improvements erected thereon as aforesaid, the notice of lien being at that time uncanceled and of record, and thereupon said Cortlandt S. Van Rensselaer resumed possession of the premises.
    That the said Cortlandt S. Van Rensselaer subsequently filed with the clerk of the county of Westchester his bond, with two sureties, conditioned for the payment of any judgment that might be rendered against the premises in any proceeding to enforce said lien, which bond was duly proved and an order of the court was made whereby it was ordered that the said lien be discharged, and the clerk of Westchester county was directed to cancel the same of record.
    To this complaint the defendant, Cortlandt S. Van Rensselaer, demurred on the ground that it did not state facts sufficient to constitute a cause of action.

      Howard AUison and Isaac N. Miller, for the appellant.

      Charles P. Gowles and Justus A. B. Cowles, for the respondents.
   Barnard, P. J.:

Under the Lien Law (Chap. 342, Laws of 1885), the plaintiffs had a lien on the land in question. The defendant Van Rensselaer contracted to sell tbe same to tbe defendant, Tbe Commonwealth Security Company. Tbe security company built a small .bouse on tbe land witb lumber obtained of tbe plaintiffs witb tbe knowledge and consent of Yan Rensselaer. By the 5 th section of tbe Lien Act, Yan Rensselaer was to be deemed tbe owner until tbe deed was actually delivered. By tbe 24th section of tbe act tbe owner, by filing a bond witb surety, can procure an order discharging the lien. Such a bond was given and approved by the court and an order entered that tbe lien be discharged and canceled of record. The bond and order are made part of tbe complaint by an allegation to that effect and not by the actual annexation of a copy thereof to tbe complaint. It does not appear who signed tbe bond besides Yan Rensselaer. Yan Rensselaer alone demurs. His demurrer was properly overruled. He could only be made liable by proof that a lien actually existed on bis property. That made tbe defendant company a necessary party. It was not necessary that tbe plaintiffs should make tbe sureties to tbe bond parties. Tbe principal debtor can be sued alone upon it. (Code, § 454.)

Tbe order overruling tbe demurrer and tbe interlocutory judgment upon it must, therefore, be affirmed, witb costs.

Pbatt, J., concurred; DyKMAN, J., not sitting.

Order overruling demurrer to complaint and judgment therein affirmed, witb costs.


text:
    Elizabeth Heyler, Respondent, v. The New York News Publishing Company, Appellant.

      IAbel — amendment of the answer setting up a retraction, not allowed on the trial — information from others anddbsence of malice neither a defense nor justification.

    In an action brought to recover damages for the publication of an alleged libelous article in a newspaper, an application made by the defendant, when the case was called for trial, to be allowed to amend the amended answer, by stating that a retraction had been made, was denied, defendant's counsel, in support of such motion, making an unverified statement that he knew nothing of the retraction until the day before trial.

      Held, assuming that such a statement was proper, and that it tended to mitigate the alleged wrong done, that the trial judge did not abuse his discretion in denying the application;

      That it constituted neither a defense nor a justification in such an action, to prove that the charge was made on information obtained from others, or that the article came in as news, and was published without any express malice on the part of the defendant.
    Appeal by tbe defendant, the New York News Publishing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Queens county on the 16th day of June, 1892, upon the verdict of a jury for $1,000, rendered upon a trial at the Queens County Circuit by the court and a jury, and also from an order denying the defendant’s motion to set aside the verdict and for a new trial, on the minutes, entered in said clerk’s office on the 15th day of June, 1892.
    This action was brought to recover damages for a libelous article published in the defendant’s newspaper. The summons and complaint were served on the 20th day of November, 1891; the answer was served on the 2d day of January, 1892, and on the 4th day of June, 1892, a motion was made by the defendant for leave .to serve an amended answer; the motion was granted, and on the Ith day of June, 1892, the amended answer was served.
    The action came on for trial at the Queens County Circuit on the 14th day of June, 1892. After the jury was impaneled and sworn, the defendant’s counsel asked leave to amend the answer, and stated: “ Yesterday I learned for the first time that there had been a retraction published of this article, three days after it was originally published, and I move to amend the answer by settingup this retraction in mitigation of damages. The retraction was published on the nineteenth day of December, and the original article complained of, I think, was published on the 16th.”

      Myer J. Stem and Wales F. Severance, for the appellant.

      Thomas G. Kadien and Louis J. Grant, for the respondent.
   Barnard, P. J.:

The plaintiff recovered a judgment for $1,000 for a libel published by the defendant of and concerning her. She was a married woman and the article stated in effect that she was a single woman and had had a child which she strangled to death. The libel was one entirely without excuse or justification if the charge was untrue. The answer did not in direct terms state the truth of the charge, but pleaded that the circumstances under which the child was born led the public authorities to believe a crime had been committed. That the facts were published without malice and under the belief that it was true. The alleged libel was published on December 16, 1890. When the case was called for trial, in June, 1892, the defendant made an application to amend the amended answer by-stating that a retraction had been made on the 19th of December, 1890. Assuming that such a statement was proper in an answer, and that it tended in any way to mitigate the wrong done if a wrong had been done, the trial judge did not abuse his discretion in denying the application. An answer had been served in November, 1891, and an amended answer had been put in upon motion on the Jth. of June, 1892. No reason was given beyond an unverified statement of counsel that he knew nothing of the retraction until the day before the trial. No reversible error is shown by the refusal to permit the amendment on this state of the facts. The defendant knew of the retraction and should have pleaded it in time to permit a trial under the usual modes of procedure which are designed to make an issue for the trial. The publication by defendant was proven. The paper of defendant in which it was contained was bought at defendant’s office in Park row, and the defendant’s witnesses prove that it was published by the defendant. Upon the merits the verdict is sustained by the proof. The charge was exceedingly injurious, and the jury has said that it was unjustified and not so far excused but that the plaintiff was entitled to substantial damages. No error was committed on the trial. There are several exceptions taken to rulings on collateral issues and to the judge’s charge and refusal to charge. It was no defense or justification to prove that the charge was made on information obtained from others. It was proven that the article came in as news and was published without any express malice on the part of the defendants.

The judgment should be affirmed, with costs.

Pratt, J., concurred.

Judgment and order denying new trial affirmed, with costs.


text:
    Charles Greite, Respondent, v. Charles Henricks, Appellant, Impleaded with Leopold Kornick.

      Covenant not to engage in a certain business within a certain period or a certain distance — not against public policy.

    In a bill of salo given by Charles Henricks for the sale of premises used for hotel and saloon purposes to one Kornick, tlio former, for a valuable consideration. covenanted that neither Henricks nor his wife would in any manner engage in any hotel, inn-keeping, saloon, restaurant or boarding-house business within one-half mile from certain premises therein described at any time within five years from the date thereof. Kornick for a valuable consideration thereafter gave a bill of sale of the same property to one Griete, and provided therein that the same was given subject in all things to the terms, conditions and covenants in the first bill of sale expressed, and by its terms made the first bill of sale part and parcel thereof.
    Henricks, within five jrnars of the date of the first bill of sale and within one-half mile of the premises therein described, opened a saloon and hotel.

      Held, that the covenant not to engage in any hotel, inn-keeping, saloon, restaurant or boarding-house business was valid, and was not in general restraint of trade; that it was based upon a good consideration, was beneficial to the purchaser, and that its violation would be injurious to him ;
    That while such covenant was personal when it was made, it was legally incorporated in the second bill of sale; and passed to the grantee therein named, and that it was bought by him as incident to the premises, and ivas assignable.
    Appeal by the defendant, Charles Henricks, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of "Westchester on the 19th day of November, 1892, for the sum of $1,200 damages, and awarding the said plaintiff a permanent injunction against the defendant, restraining him from carrying on the business of a hotel, restaurant, saloon keeper, etc., after a trial by the court at the "Westchester Special Term.
    The court found, among others, the following facts:
    That prior to the 15th day of January, 1891, the defendant Charles Henricks carried on the business of keeping a hotel, saloon, boarding house and restaurant in the city of Mount Yernon, on the premises No. 3 South Fifth avenue and Nos. 18 and 20 "West First street.
    That by a written instrument under seal, bearing date January 15, 1891, in consideration of $5,000, defendant Charles Henricks, as party of the first part, granted, bargained and sold to defendant Leopold Kornick, his executors, administrators and assigns, as party of the second part, the personal property, chattels, stock, fixtures and furniture and other articles in, upon or about the premises occupied by said Henricks, No. 3 South Fifth avenue, and 18 and 20 West First street, used by said Henricks in the business of keeping a hotel, saloon, boarding house and restaurant, and also the good will of said business.
    That said Kornick took possession of said property under said instrument, and carried on said business therein referred to.
    That in and by said instrument said defendant Henricks covenanted as follows:
    “ And I, the said party of the first part, for the consideration aforesaid, and in consideration of the sum of one dollar, to me in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, hereby covenant and agree to and with the said party of the second part, that neither I, the said party of the first part, nor my wife, shall in any manner carry on or engage in any hotel, inn-keeping, saloon, restaurant or boarding-house business within one-lialf mile from said premises at any time within five years from the date hereof, and further, that during said period no other person shall carry on such business in any part of the premises now owned by me on said Fifth avenue.”
    That by a written instrument under seal, bearing date March 30, 1891, in consideration of $5,000, said defendant Leojiold Kornick assigned and transferred to this plaintiff, Charles Greite, said instrument executed by defendant Charles Henricks, dated January 15, 1891, the articles of personal property therein referred to, together with all rights and privileges thereby secured and the business of keeping a hotel, saloon, boarding house and restaurant, and also the good will of said business. Said Greite took possession of said property under said instrument and carried on and continues to carry on the business therein referred to.
    That when defendant Henricks executed said instrument to defendant Kornick, he owned the fee of the premises No. 3 South Fifth avenue, and was lessee of the premises 18 and 20 West First street, which lease said Henripks assigned to said Kornick under said instrument. Said lease expired May 1, 1892.
    That after defendant Henricks liad executed said instrument to defendant Kornick and before the lease therein referred to expired, said Henricks acquired the fee of the premises 18 and 20 West First street.
    That prior to the expiration of the lease of said premises 18 and 20 West First street and No. 3 South Fifth avenue, defendant Hen-ricks notified plaintiff that plaintiff must vacate said premises on May 1, 1892.
    That plaintiff applied to defendant Henricks for a new lease of said premises, but defendant Henricks refused to lease said premises to plaintiff and compelled plaintiff to vacate said premises on the 1st of May, 1892, when plaintiff’s lease of said premises expired.
    That in May, 1892, defendant Henricks opened a saloon on the premises Nos. 18 and 20 West First street, and ever since has carried on a saloon business on said premises and still carries on said business.
    That plaintiff requested defendant Leopold Kornick to bring an action to restrain defendant Henricks from carrying on said saloon business on said premises until January 15, 1896. Said Kornick refused to bring said action or to join plaintiff as a plaintiff in this action. Said Kornick was then made defendant in this action.
    That the plaintiff on and after May 2, 1892, carried on the said business purchased by him as aforesaid from defendant Kornick and continues to carry on said business on premises adjoining said 18 and 20 West First street.
    The bill of sale from Kornick to Greite contained, after the description of the property sold, the following provisions, “ being the same property mentioned and described in a certain bill of sale, executed and delivered by Charles Henricks to me, the said Leopold Kornick, bearing date on the fifteenth day of January in the year eighteen hundred and ninety-one, and this bill of sale being given subject in all things to the terms, conditions and covenants in the said bill of sale from the said Charles Henricks expressed, and which said last-mentioned bill of sale forms part and parcel hereof.”

      David Sioits, for the appellant.

      Martin J. Keogh, for the respondent.
   Barnard, P. J.:

The defendant Kornick conveyed a hotel, saloon, boarding-house and restaurant business to the plaintiff in Mount Yernon, N. Y. The consideration for the transfer was $5,000, and by the terms of the bill of sale, the covenants and conditions contained in a bill of sale from defendant Henricks to defendant Kornick, were made applicable to the sale to plaintiff. The bill of sale from Henricks to Kornick contained this covenant: “ Neither I, the said party of the first part, nor my wife, shall, in any manner, carry on or engage in any hotel, inn-keeping, saloon, restaurant or boarding-house business within one-half mile from said premises, at any time within five years from the date hereof.” The date was 15th of January, 1891. The business was conducted upon premises known as 3 South Fifth avenue and 18 and 20 West First street, Mount Yernon. The Fifth avenue property was owned by Henricks, and he was the lessee of the West First street property when he sold to Kornick under a lease which expired May 1, 1892. In 1891, Henricks bought the First street property and gave notice to plaintiff to vacate at the end of the lease. The plaintiff then bought the adjoining property and continued his business therein. On the 2d of May, 1892, Henricks opened the same business on the old premises. The covenant was valid. It is not in general restraint of trade. It was based upon a good consideration. It was beneficial to the purchaser, and its violation will be injurious to him. The rule governing such covenants is settled by the Court of Appeals in Diamond Match Company v. Roeber (106 N. Y. 473).

The covenant between the defendants was personal when made, but when the sale was made to the plaintiff, this covenant was legally incorporated in it. The case was then one where. Henricks had sold a business carried on in certain premises partly owned by him and partly hired, and had covenanted not to open a like business within a half mile within five years, nor to permit anyone to carry on the business in the Fifth avenue premises owned by him. The lease was given under this condition to Kornick, and before it expired, it was sold to plaintiff. This personal covenant, under these circumstances, passed to plaintiff. It was bought by Kornick as incident to these premises, and was assignable.

The judgment should be affirmed, with costs.

Pratt, J., concurred; Dyicman, J., not sitting.

Judgment affirmed, with costs.