author: Per Curiam :

text:
    DANIEL B. FAYERWEATHER, et al., Appellants, v. THE PHENIX INSURANCE CO., Respondent.

      Marine insurance—Negligence, not amounting to barratry, insurers not liable for—Fresumption of unseaworlhiness from sinking of vessel— Clause in policy subrogaling insurers to claim of assured against carriers, and clause in bill of lading giving carriers, in case of their liability, full benefit of insurance; assured in such case cannot recover against insurers for loss caused by carrier's negligence.

    Before Sedgwick, Cli. J., Freedman and O’Gorman, JJ.

      Decided May 2, 1887.
    Appeal by plaintiffs from a judgment entered in favor of defendants on a trial before the court without a jury, the court rendering the following opinion:
    Tritax, J.—“ The plaintiffs seek to recover for a loss that they sustained upon goods that had been insured by the defendant under a policy of marine insurance. The goods were on board a steamer at the time the loss occurred. The goods were insured against ‘ perils of the sea, barratry of the master and mariners, and all other perils, losses and misfortunes that have or shall come to the hurt, detriment or damage of the said goods and. merchandise or any part thereof.’ The evidence shows that the steamer sank through the negligence of one of the mariners.

      “ The negligence of the master or mariners was not one of the things insured against. Negligence is not barratry unless it be so gross as to amount to evidence of .fraud. Atkinson v. Great Western Insurance Co., 65 N. Y. 538. In this case, there is no evidence of gross negligence. There is nothing in the case which tends to show that the vessel was sunk through the willful or fraudulent act of the master or mariners, and it is settled that insurers are not responsible for the fault, negligence or misconduct of the master or mariners not' amounting to barratry. Grimm- v. Phenix Insurance Co., 13 Johns. 451.
    “ No presumption arises from the fact that the vessel sank that she was unseaworthy at the time of the commencement of the voyage, because she sank after the voyage had ended, and the cause of her sinking is explained and is shown to have been something outside of the condition of the vessel. In other words, the evidence shows a cause of loss that excludes an inference of unseaworthiness. Berwind v. Greenwich Insurance Co., 53 Super. Ct. 103.
    “ It was agreed in the policy of insurance that the assured would subrogate to the insurer all their claims against the transporters of said merchandise not exceeding the amount paid by said insurers. After making this agreement with the insurers, the plaintiffs contracted with the transporters— That in case of any loss, detriment or damage to be sustained by any of the property herein receipted for during the transportation whereby any legal liability or responsibility shall or may be incurred by the terms of this contract, the carrier shall have the full benefit of any insurance that may have been effected upon, or on account of, said goods.’ The evidence shows that the goods were lost through the negligence of the transporters. This is enough to make them liable to the plaintiffs. And, therefore, by the above provision of the contract between the plaintiffs and the transporters, the transporters were entitled to the full benefit of this policy of insurance; but, by the very terms of the policy of insurance, it was agreed that the defendant, the insurer, should be subrogated to any claim that the plaintiffs might have against the transporters. But for this clause of the bill of lading, the defendant would have a right of action against the carrier for damages. This right of action does not depend upon the implied right of subrogation ; the contract which gives the defendants this right of action is express. It is an agreement between the plaintiff's and the defendant that the plaintiffs will assign to the defendant any cause of action that they may have against the carriers; but by the agreement above mentioned they have in effect released the carriers from any cause of action. If the plaintiffs should recover in this- suit compensation from the insurance company, the agreement in the bill of lading has made it impossible for plaintiffs to do what they agreed with the defendant they would do.
    “ The plaintiffs allege that they gave to the defendant due notice and proof of loss, as required by the policy of insurance. This allegation is denied by the defendant. There was no evidence given on the trial that would authorize me in finding that, as a matter of fact, the plaintiff did give to the defendant proof of loss; but there is evidence that would warrant me in finding, if such fact had been alleged in the complaint, that strict service of the proof of loss had been waived by the defendant. But, as this allegation of waiver was not made in the complaint, I make no finding in regard to it. It is well settled that a proof of loss is a condition precedent to maintaining the action, and that, if the plaintiff relies on a waiver of the proof of loss instead of upon the fact that proof of loss was made, such waiver must be alleged in the complaint and proved on the trial.”

      Stewart L. Woodford and William C. Wallace, for appellants.

      George A. Black, for respondent.
   Per Curiam :

“The judgment is affirmed, with costs, on the opinion of the learned trial judge.”


source: Caselaw Access Project

license: Public Domain

text:
    EDMUND BLUNT, Appellant, v. ELMER BARRETT, Respondent.

      Burden of proof—License—Conversion—In action of conversion where defense rests upon possession of the property under license, the original taking being admitted by plaintiff to have been under such license, the burden of proof is upon plaintiff to show discontinuance of said license before loss of the property.

    Before Sedgwick, Ch. J., and O’Gorman, J.

      Decided May 18, 1887.
    Appeal from, judgment in favor of defendant, and from order denying motion for new trial.
    Action for wrongful conversion of a small steam yacht belonging to plaintiff and of which defendant had been, during the summer of 1884, engineer and caretaker, in the employment of plaintiff.
    Prior to December 21, 1884, the boat was laid up for the winter by the defendant, under direction of the plaintiff, and plaintiff testified that thereupon all employment by him of defendant and all the authority of defendant over the boat came to an end. Defendant afterwards removed the boat from the place where it had been laid up by him to another place, from which it drifted, went ashore and became a total wreck. Defendant testified that he was employed by the plaintiff to look after the boat during the whole winter, and in the exercise of the general license and powers thus conferred on him, he continued in charge of the boat, and in the exercise of his best judgment removed the boat from where she had been first placed by him, and that her loss was the result of an accident, and not of any negligence or wrong doing for which he was to blame. The trial judge charged the jury that the plaintiff, in order to recover, should establish the wrongful taking of the boat, and for that purpose it was enough to establish a taking by defendant without authority or the color of authority. To this instruction counsel for plaintiff excepted, on the ground that it was sufficient for plaintiff to prove that he owned the boat, and that defendant took it away, and that the onus of proving license in defendant rested on him.
    The Court at General Term (after stating the facts as above), said:—“ This exception is not well taken. The action is for a wrongful taking of the boat about January 15, 1885. That the defendant had a right to the possession of the boat by the consent and direction of the plaintiff up to the latter part of December, 1884, is testified to by plaintiff himself...... That such authority did not continue was the gist of the action, and the foundation of plaintiff’s claim; and unless that discontinuance was proved, the plaintiff could not recover. The plaintiff did, in his own testimony at the trial, give evidence that the defendant’s authority over the boat did not continue, but ceased by his full discharge in the latter part of December. In this he was contradicted by the defendant and by witnesses examined on his behalf, and the question was «left to the jury to decide on all the evidence. The affirmative of that issue was clearly with the plaintiff, and the trial on his part was conducted under that theory.....”

      Charles E. Wilber, for appellant.

      Charles Blandy, for respondent.
   Opinion by O’Gorman, J.; Sedgwick, Ch. J., concurred.

Judgment affirmed, with costs. .


text:
    WILLIAM M. KEELER, Appellant, v. BARRETT’S PALMER & HEAL DYEING ESTABLISHMENT, Respondent.

      Separate appeal from order denying motion for new trial made under § 999 Code—costs on.

    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.

      Decided May 18, 1887.
    Appeal from order directing re-taxation of costs of respondent upon affirmance by the general term of an order denying motion for new trial on judge’s minutes.
    The issues in the action were duly tried before the court and a jury, and a verdict was rendered for defendant ; plaintiff then made a motion for a new trial on the minutes, which was denied; subsequently plaintiff took an appeal from the judgment which was entered on the verdict, and such appeal was heard by the general term, and the judgment affirmed. Thereafter an order was entered by plaintiff denying the motion for a new trial, upon the judge’s minutes, and a separate appeal taken therefrom to the general term, which affirmed the order with costs.
    The clerk refused to tax the bill of costs as presented by defendant and respondent, and allowed only $10 motion costs, on the ground that no case had been made on the original motion under § 3251, subd. 3, of the Code of Civil Procedure. Defendant claimed the right to his bill of costs as proposed, under § 3251 Code, subd. 4.

      S. F. Kneeland, for appellant.

      Taylor & Ferris, for respondent.
   Per Curiam :

Order affirmed, with $10 costs.


author: Per Curiam:

text:
    MICHAEL NOONAN, Respondent, v. JOHN H. STRAHAN, Appellant.

      Evidence—Admission by •defendant that he still owed plaintiff a certain amount which he did not have money to pay—Evidence that defendant then had more than that sum in bank, not admissible in his behalf to support his contradiction of such alleged admission.

    Before Freedman and Truax, JJ.

      Decided June 23, 1887.
    Appeal from judgment rendered after trial by jury, and from an order denying motion on the minutes to set aside the verdict and for new trial.
    For the facts in the case, see 53 Suffer. Gt. 419.
    The respondent had testified that the appellant at one time had told him that there was three or four thousand dollars more due the respondent, which he (the appellant) could not pay; that he did not have the money at that time, but that he would give his note at three or four months for said amount. This testimony was contradicted by the appellant. The appellant then sought 0 to show that as a matter of fact he had at the time this ^statement was alleged to have been made more than the sum of three or four thousand dollars in the bank—and questions tending to show that such was the fact were asked, and under the objection of the respondent, excluded.
   Per Curiam:

“.....There was no error in so excluding this evidence. It did not prove, nor did it tend to prove, that the appellant had not made the statement which it was alleged that he had made. The record fails to show an exception that constitutes a ground for reversal, and the verdict cannot be held to be against evidence or the weight of evidence.”

T. Allison and D. J. Dean, for appellant.

L. Lajlin Kellogg, for respondent.

Judgment and order affirmed, with costs.


text:
    ROBERT F. AUSTIN, Respondent, v. JOSEPH F. BYRNES, Appellant.

      Motion to vacate order for examination in proceedings supplementary to execution on ground that judgment is paid, when not granted, but moving party remitted to motion in the aetion to have judgment declared satisfied.

    Before Sedgwick, Ch. J., and Ingraham, J.

      Decided December 30, 1886.
    Appeal from an order denying motion to vacate proceedings supplementary to execution.
    The Court at General Term said :— The judgment upon which the order to examine the defendant was granted, is regular, unsatisfied of record, and sufficients to sustain the order. If there is anything due or unpaid on the judgment, the motion to vacate the order was ■properly denied. The facts upon which the defendant claims the judgment was paid, or satisfied, are either denied by the assignee of the judgment, or their legal effect disputed, and whether the whole judgment is or is not satisfied depends on the right to set off a claim that the defendant has against the person who paid a portion of the judgment and for whose benefit it was assigned. Under the circumstances we think the proper remedy for the defendant is by motion in the action to have the judgment declared satisfied of record. On such a motion a reference can be ordered if necessary to take proof of the facts, and on such reference the question of the amount if any, that remains unpaid can be much more satisfactorily determined than on the papers before us, and the order on that motion can, if the motion is granted, make proper provision as to any set off required.”

      W. H. Arnoux, for appellant.

      George W. Carr, for respondent.
   Opinion Per Curiam.

Order affirmed with $10, costs and disbursements.


text:
    Paul Bechet v. Margaret Smithers.
    Decided December 17, 1886.
    Before Sedgwick, Ch. J. Freedman and Ingraham, JJ.
   Judgment affirmed, with costs. Ingraham, J., dissenting.


author: Opinion per Curiam.

text:
    Charles W. Hassler, as Trustee, &c., Appellant, v. Henry B. Turnbull, Respondent.
    Decided December 17, 1886.
    Appeal from judgment dismissing complaint entered on the report of a referee.
   Opinion per Curiam.

Before Sedgwick, Ch. J., Freed-

man and Ingraham, JJ. Judgment affirmed, with costs.


text:
    The Mayor, &c., of New York City v. The Independent S. Co. The Mayor, &c., of New York City v. The N. J. Steamboat & T. Co.
    Decided December 17, 1886.
    Before Sedgwick, Ch. J., and Freedman, J.
   Judgments affirmed, with costs.


author: Opinion by Freedman, J.

text:
    Henry Wehle, as Receiver, &c., Respondent, v. Michael A. Coleman, et al., Appellants.
    Decided December 30, 1887.
    Appeal from judgment in favor of the plaintiff entered upon the decision of a judge at Special Term. Sewell, Pierce & Sheldon, for appellants. John Fennel, attorney, and Henry Wehle and Charles Goepp, of counsel for respondent.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
   Opinion by Freedman, J.

Judgment affirmed, with costs.


author: Per Curiam.

text:
    James A. Deering, Appellant, v. Sarah M. Starr, Respondent.
    Decided December 30, 1886.
    Appeal by plaintiff from judgment and from order denying motion for new trial, made upon the minutes. Lewis Sanders, for appellant, Albert Matthews, for respondent.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
   Per Curiam.

“Judgment- and order affirmed, with costs! An irregularity in the form of the judgment should be corrected. The judgment is as if a verdict had been directed. In fact, upon the trial the complaint was dismissed.”


text:
    David C. Carleton, Appellant, v. Thomas Darcy, et al., Respondents. David C. Carleton, Appellant, v. George H. Dean, et al., Respondents. The Mayor, &c., of New York, Respondents v. David C. Carleton, Appellant. The Mayor, &c., of New York, Respondents, v. David C. Carleton, et al., Appellants.
    Decided December 30, 1886.
    Appeals from judgments. Before Sedgwick, Ch. J., and Freedman, J.
   Per Curiam.

Judgments severally affirmed, with costs.


text:
    William M. Keeler, Appellant, v. Barrett’s, Palmer & Heal Dyeing Establishment, Respondent.
    Decided December 30, 1886.
    Appeal from judgment entered in favor of the defendant upon the verdict of a jury. S. F. Kneeland, for appellant. Taylor & Ferris, for respondent. Before Sedgwick, Ch. J., and Freedman^.
   Per Curiam.

“The appeal being from the judgment only, and no appeal having been taken from the denial of the motion for a new trial, the verdict of the jury must stand as conclusive upon the questions of fact sought to be raised by the points submitted on behalf of the appellant. Judgment affirmed, with costs.”


author: Opinion Per Curiam.

text:
    National Bank of Virginia, Respondent, v. Robert A. Mills, et. al., Appellants.
    Decided December 30, 1886.
    Appeal from judgment entered upon the verdict of a jury, and from two orders denying defendants’ motion for a new trial. Aaron J. Vanderpoel, for appellants. Edward P. Wilder, for respondent.
   Opinion Per Curiam.

Before Sedgwick, J., Van Vorst and Freedman, JJ. Judgment and order denying defendants’ motion for new trial on the minutes affirmed, with costs. Order denying defendants’ motion for new trial on the ground of surprise and newly discovered evidence affirmed, with ten dollars costs and disbursements.


text:
    Helen D. Adams, Respondent, v. The Irving National Bank, Appellant.
    Decided December 30, 1886.
    Appeal from judgment in favor of plaintiff entered upon the verdict of a jury, and from order denying defendant’s motion for a new trial upon the minutes. Lindsay & Flammer, attorneys, and Gratz Nathan, of counsel for appellant. Wm. F. Scott, of counsel for respondent.
    Before Sedgwick, Ch. J., and Freedman, J.
   Opinion Per Curiam.

Judgment and order affirmed, with costs.


text:
    Harriet A. Mead, as Executrix, &c., Appellant, v. Hugh J. Grant, as Sheriff, &c., Respondent.
    Decided December 30, 1886.
    Appeal from judgment. John Brooks Leavitt, for appellant. Cockran & Clark, for respondent.
    Before Sedgwick, Ch. J., and Freedman, J.
   Per Curiam.

The judgment should be affirmed, with costs.


text:
    Peter A. Morris, Respondent, v. The Manhattan Railway Co., Appellant.
    Decided December 30, 1886.
    Appeal from judgment in favor of the plaintiff, entered upon the report of a referee. Davies, Cole & Rapallo, for appellant. Charles Blandy, for respondent.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
   Per Curiam.

The judgment appealed from should be affirmed, with costs.


text:
    David M. Marsh, et al., Appellants, v. Solomon Hexter, et al., Respondents.
    Decided February 14, 1881.
    Appeal from order. John L. Hill, for appellants. A. P. & W. Man, and Chas. C. Protheroe, for respondents.
    Before Freedman and Ingraham, JJ.
   Per Curiam.

“The order appealed from should be modified so as to make the last sentence thereof read as follows: This order shall not be considered as in any way adjudicating any question of fact or law affecting the merits of the action.’ As thus modified the order should be affirmed, without costs.”


author: Opinion by Truax, J.

text:
    James Fitzpatrick, as Administrator, &c., Appellant, v. The New York, New Haven & Hartford R. R. Co., Respondent.
    Decided March 14, 1887.
    Appeal from judgment in favor of defendant, entered on verdict rendered under direction of the court. Julius Lipman, for appellant, John E. Parsons, of counsel, and H. H. Anderson, for respondent.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.
   Opinion by Truax, J.

Judgment affirmed, with costs.


author: Opinion by Dugro, J.

text:
    George T. Newhall, Respondent, v. William H. Appleton, et al., Appellants.
    Decided March 14, 1887.
    Appeal by defendant from the judgment entered upon report of a referee. Edward W. Paige, for appellant. William W. Badger, for respondent.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.
   Opinion by Dugro, J.

Judgment affirmed, With costs.


text:
    James M. Constable et al., Respondents, v. Samuel Corn, et al., Appellants.
    Decided March 14, 1887.
    Appeal by defendants from judgment entered upon verdict óf jury, and from order denying motion for new trial made upon judge’s minutes. A. E. Dyett, for appellants. B. F. Watson, for respondents.
    Before Sedgwick, Ch. J., and Freedman, J.
   Per Curiam.

Judgment and order affirmed, with costs.


text:
    John Brooks Leavitt, Respondent, v. Lewis S. Chase, Appellant.
    Decided March 14, 1887.
    Appeal by defendant from order denying defendant’s motion for a further bill of particulars. Edwin R. Leavitt, for appellant. Austin G. Fox, for respondent.
    Before Sedgwick, Ch. J., and Truax, J.
   Per Curiam.

‘‘ The motion was made before answer served. The learned judge was right in denying the motion. It did not appear that an additional bill of particulars was necessary to defendant, to enable him to answer the complaint. Order affirmed, with $10 costs.”


author: Opinion by Sedgwick, Ch. J.

text:
    Clarence V. Kip, Respondent, v. John Ashcroft et al., Appellants.
    Decided April 13, 1887.
    Appeal by defendants from judgment entered on findings in an action tried at Special Term. Barnum & Rebhann, for appellants. George W. Van Slyck, for respondent.
    Before Sedgwick, Ch. J., and Freedman, J.
   Opinion by Sedgwick, Ch. J.

Judgment reversed and new trial ordered, with


text:
    Charles A. Hotchkiss, Respondent, v. George H. Kennedy et al., Appellants.
    Decided April 13, 1887.
    Appeal by defendant from judgment entered upon report of referee. Evarts, Southmayd & Choate, for appellant Hutchinson, et al. William B. Putney, for appellant Kennedy. Anderson & Man, for respondent.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.
   Per Curiam.

Judgment affirmed, with costs.


text:
    Daniel Van Buskirk, Respondent, v. Henry R. Cudlipp, Appellant.
    Decided May 2, 1887.
    Appeal by defendant from judgment entered on verdict for plaintiff as .directed by court. William E. Glover, for appellant. Edward C. Ripley, for respondent.
    Before Sedgwick, Ch. J., and O’Gorman, J.
   Opinion by Sedgwick, Ch. J.

Judgment affirmed, with costs.


text:
    The Florida Midland & Georgia R. R. Co., Appellant, v. Edwin E. Glaskin, Respondent.
    Decided May 2, 1887.
    Appeal from judgment dismissing complaint entered upon the report of a referee. Also appeal from order denying plaintiff’s motion to send back the referee’s report for correction, and from order denying plaintiff’s motion to vacate the referee’s report, and directing the referee to insert in the report a direction as to the judgment to be entered thereon. Charles B. Meyer, for appellant.' Ira Shafer, for respondent.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.
   Per Curiam.

The judgment and the two orders appealed from should be affirmed, with costs.


text:
    James Talcott, Respondent, v. Herbert A. Lee et al., Appellants.
    Decided May 2, 1887.
    Appeal from judgment entered upon the report of a referee. Wayland E. Benjamin, for appellants. L. B. Bunnell, for respondent.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.
   Opinion by Freedman, J. Judgment affirmed, with costs.


text:
    Augustus F. Holly et al., as Executors, &c., Respondents, v. Charles Schlesinger, Appellant.
    Decided May 2, 1887.
    Appeal from judgment entered upon a verdict directed by the court. C. Bainbridge, Smith, for appellant. S. P. Nash, for respondents.
    Before Sedgwick, Ch. J., and Freedman, J.
   Opinion Per Curiam.

Judgment affirmed, with costs upon opinion of judge below.


text:
    Arthur G. Leonard et al., Respondents, v. Charles Reizenstein, Impleaded, &c., Appellant.

      Decided May 2, 1887.
    Appeal by defendant from judgment entered upon verdict for plaintiffs. Adolph L. Sanger, for appellant. William H. Harris, for respondent.
    Before Sedgwick, Ch. J., and Freedman, J.
   Per Curiam.

Judgment affirmed with costs.


text:
    Seth M. Harris, Appellant, v. Annie R. Platt, as Executrix, &c., Respondent.
    Decided May 2, 1887.
    Appeal from order denying plaintiff’s motion for costs of the action. Cornell, Secor Page, for appellant. Wm. R. Martin, for respondent.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.
   Per Curiam.

The order should be affirmed, with ten dollars costs and disbursements to be taxed.


text:
    John F. Riday, Respondent, v. The Oil, Paint & Drug Publishing Co., Appellant.
    Decided May 2, 1887.
    Appeal by defendant from judgment entered upon the report of a referee. Jos. A. Welch, for appellant. William Bracken, for respondent.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.
   Per Curiam.

It is not necessary to say, in this case, more than that the conclusions of law of the referee followed the findings of fact that he made, and that the testimony shows no error in those findings. Judgment affirmed, with costs.”


text:
    Frank Germeten, Respondent, v. Clarence M. Roof, Appellant.
    Decided May 2, 1887.
    Appeal from judgment entered upon the verdict of a jury. George Bell, for appellant. Emil S. Arnold, for respondent.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.
   Opinion Per Curiam.

Judgment affirmed, with costs.


text:
    Gilbert R. Hawes, Appellant, v. Edward P. Beach, Respondent.
    Decided May 2, 1887.
    Appeal from judgment dismissing complaint.. Thomas J. Falls, for" appellant: Lowrey, Stone & Auerbach, for respondent.
    Before Sedgwick, Ch". J., Freedmán and O’Gorman, JJ.
   Per Curiam.

The complaint was properly dismissed at the trial for the reasons assigned by the learned judge below. The judgment should be affirmed, with costs.


text:
    William L. Flagg, Respondent, v. Henry Prouse Cooper, Appellant.
    Decided May 2, 1887.
    Appeal by defendant from an order denying a motion to set aside a sale, made under execution in this action. . George H. Foster, for appellant. William L. Flagg, for respondent.-
    -Before Sedgwick, Ch. J., and O’Gorman, J.
   Opinion Per Curiam.

Order affirmed, with $10 costs and disbursements to be taxed.


text:
    Samuel C. Reed, v. Francis E. Trowbridge.
    Decided May 2, 1887.
    Exceptions ordered to be heard in the first instance at General Term. Theodore F. Miller, for plaintiff. D. M. Porter, for defendant.
    Before Freedman and O’Gorman, JJ.
   Per Curiam.

Defendant’s exceptions should be overruled, and the plaintiff should have judgment on the verdict, with costs.


text:
    Farley Clark, by Guardian, &c., Respondent, v. Manuel Pomares, Appellant.
    Decided May 18, 1887.
    Appeal from a judgment entered in favor of plaintiff on verdict of a jury, and also from an order denying defendant’s motion for new trial. C. A. Moran, for respondent. Childs & Hull, for appellant.
    Opinion by O’Gorman, J. Sedgwick, Ch. J., and Freedman, J.
   Order denying motion for new trial,

and judgment affirmed, with costs.


text:
    William Tremere, Respondent, v. John Brady, Appellant.
    Decided June 23, 1887.
    Appeal from judgment entered on verdict for plaintiff, and from order denying motion for new trial made upon the minutes. Wm. King Hall, for appellant. M. A. Kellogg, for respondent. Sedgwick, Ch. J. “ The question mooted by the appellant is whether the testimony supported the verdict.
   My opinion is that the testimony does not show that the verdict was incorrect.” Freedman, J., concurred. Judgment and order affirmed, with costs.


text:
    Ellen A. Kelly, as Adm’x. &c., Respondent, v. The Manhattan Railway Co., Appellant.
    Decided June 23, 1887.
    Appeal from judgment entered in favor of plaintiff upon verdict of jury, and from order denying defendant’s motion upon the minutes for new trial. Davis, Cole & Rapallo, attorneys. Edward S. Rapallo, and Howard Townsend, of counsel for appellant. Ashbel P: Fitch, attorney, and Henry H. Spelman, of counsel for respondent.
    Before Sedgwick, Ch. J., and Freedman and Truax, JJ.
   Opinion by Freedman, J.

Judgment and order affirmed, with costs.


text:
    Cornelia Ernst, as Administratrix, &c., Plaintiff, and Eusebia F. Conant, Impleaded, Appellant, v. Wilhelmina Catherine Schaeffer, Impleaded, &c., Respondent.
    Decided June 23, 1887.
    Appeal by Eusebia F. Con-ant from judgment dismissing complaint on the merits, Avith costs. W. S. Macfarlane, for appellant. H. J. Schenck, for respondent.
    Before Sedgwick, Ch. J., and Freedman, J.
   Opinion Per Curiam.

Judgment affirmed, Avith costs against appellant.


text:
    Charles Northrop, Respondent, v. Alfred H. Smith, Impleaded, &c., Appellant.
    Decided June 23, 1887.
    Appeal from judgment entered upon the verdict of a jury, and from order denying defendant’s motion upon the minutes for a new trial.
    Before Sedgwick, Ch. J., and Freedman, J.
   Opinion Per Curiam.

Judgment and order affirmed, with costs.


author: Sedgwick, Ch. J.

text:
    Mary J. Utter, Appellant, v. William T. Richmond, Respondent.
    Decided June 23, 1887.
   Sedgwick, Ch. J.

I think the judgment should be affirmed, with costs.” Freedman, J., concurred.


text:
    John B. Ireland, Respondent, v. The Metropolitan Elevated Railway Co., Appellant.
    Decided June 23, 1887.
    Appeal from an order made at special term allowing the plaintiff to amend his complaint on payment of twenty dollars costs. Whitehead, Parker & Dexter, for respondent. Davies, Cole & Rapallo, attorneys, and Edward C. James of counsel, for appellant.
    Before Sedgwick, Ch. J., Freedman and Truax JJ.
   Opinion Per Curiam.

Order amended by-striking out words “ Twenty dollars costs,” and substituting in place thereof, words the costs awarded to the appellant on the appeal, and ten dollars the costs of the motion,” and as so modified order affirmed, without costs.


text:
    John Brooks Leavitt, Appellant, v. Lewis S. Chase, Respondent.
    Decided June 23, 1887.
    Appeal by plaintiff from order denying motion to strike from complaint scandalous matter. Austen G-. Fox, for appellant. Abram Kling, for respondent.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ. Sedgwick, Ch. J.
   “ The motion was made more than twenty days after the complaint was served. There is reason, from the nature of this particular case, why the rule twenty-two should not be applied to it. It was properly denied. Per Curiam. Order affirmed, with ten dollars costs and disbursements.


text:
    John Brooks Leavitt, Respondent, v. Lewis S. Chase, Appellant.
    Decided June 23, 1887.
    Appeal.from order granting motion for reference. Abram Kling, for appellant. Austen G. Fox, for respondent.
    Before Sedgwick, Ch. J.,. Freedman and Truax, JJ.
   Per Curiam.

Order affirmed, with $10 costs.


text:
    Moses Samelson, Respondent, v. George A. Haggerty, Impleaded, et al, Appellant.
    Decided June 23, 1887.
    Appeal from an order denying a motion made by the defendant Haggerty to vacate an order appointing a receiver of mortgaged premises pendente lite.

    Before Sedgwick, Ch. J., Freedman and Truax, JJ.
   Per Curiam.

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


text:
    Hopper v. Sage.
    Decided June 23, 1887.
   Exceptions overruled, and judgment ordered on the verdict, with costs.


text:
    Oesterreicher v. Raisbeck.
    Decided June 23, 1887.
   Orders affirmed.


author: By the Court.—O’Gorman, J.

text:
    THEODORE C. WEEKS, Respondent, v. THE SILVER ISLET CONSOLIDATED MINING CO., et al., Appellants.

      Corporation—Calls for installments—Rights and liabilities of stockholders, on a failure to respond to calls—•Forfeiture, lohen not relieved from.

    Under an agreement indorsed on certificates of stock, providing that the directors of the company may, from time to time, call on the holders of the certificates for assessments on the stock, and providing “ The payment of such calls to be optional with the holder, but the failure to pay any such call when due and payable—time being of the essence of this stipulation—shall be, and be taken to be a relinquishment by the holder of the shares on which payment shall so fail to be made, and this certificate or any interest thereunder in regard to such shares shall be null and void.”

      Held, it being conceded that the failure of a certificate-holder to pay an assessment duly and properly called for, worked a forfeiture of his stock, and that such forfeiture terminated his right and title as holder of the stock to any interest in the corporate property,
    1. That by such failure the corporation and the other stockholders became ipso facto, vested with a right to share in the corporate property which he had forfeited by his delinquency; and the shares of the other stockholders thereby became enhanced and increased in value by the addition of the shares which the delinquent stockholder had lost.
    2. Such delinquent stockholder has no voice or interest in any action which the other stockholders may see fit to take in respect of the stock represented .by the certificate held by him, and has no right to object to anything the corporation may do therewith.
    8. The other stockholders may consent to waive their claims and rights to . share in the interest of the delinquent stockholder which he had forfeited ; but the president of the corporation cannot divest them thereof by virtue of any power in him inherent in his office.
    4. Such a forfeiture will not be relieved against when there is no harsh, sudden, secret or oppressive action by the company, no deception on its part and no mistake on the part of the stockholder; a fortiori not where, in addition to the absence of these elements, there is great laches on the part of the stockholder for which no justification or excuse is made to . appear.
    Before Sedgwick, Cli. J., Freedman and O’Gorman, JJ.

      Decided June 14, 1887.
    Appeal from a judgment in favor of the plaintiff.
    The facts sufficiently appear in the opinion.

      Stickney & Shepard, 'attorneys, and Nelson S. Spencer of counsel for appellants, argued:
    I. The plaintiff has admitted a forfeiture. The complaint is drawn solely on the theory that the stock is already forfeited. If plaintiff intended to proceed upon the theory that he was still a stockholder, he should not have brought this action. This has-been decided in an action precisely similar in form to this. Stevens v. Philips, 3 Week. Dig. 320.
    II. The stipulation, subject to which the certificates of stock were issued, is binding on the stockholder, and a default thereunder forfeited the stock. Fort Miller Co. v. Payne, 17 Barb. 567 ; Seymour v. Sturges, 26 N. Y. 134; Small v. Herkimer Manuf. Co., 2 lb. 330; Kent v. Quicksilver Mining Co., 78 Ib. 159 ; Morawetz on Corp. 2d ed., § 802; Otter v. Brevoort Petroleum Co., 50 Barb. 247; People v. Albany & Susquehanna R. R. Co., 55 Ib. 344; City Bank of Columbus v. Bruce, 17 N. Y. 507 ; Rider Raft Co. v. Roach, 97 N. Y. 387; Whitney Arms Co. v. Barlow, 63 N. Y. 62; Lesseps v. Architects’ Co., 4 La. Ann. 316.
    III. The plaintiff’s stock was ipjso facto, forfeited by the default of May 1, 1883. Germantown Passenger Railway Co. v. Fitler, 60 Penn. St. 124; Brooklyn Steam Transit Co. v. City Brooklyn, 78 N. Y. 524; Matter of B. W. & N. Railway Co., 72 Ib. 245; Atty. Gen. v. N. A. Life Ins. Co., 82 N. Y. 189. Every stockholder on the purchase of his stock acquired a right to insist on the payment of all assessments by every other stockholder or the forfeiture of his stock. The payment or the alternative forfeiture is a right of which every other stockholder cannot be deprived, except by his own consent. It is a vested right. Kent v. Quicksilver Mining Co., 78 N. Y. 159; Upton v. Tribilcock, 91 U. S. 45; Chouteau Ins. Co. v. Floyd, 74 Mo. 286 ; Morawetz on Corp., 2 ed. § 302. See also § 115.
    IV. Under the stipulation indorsed on his certificates, the company, it is submitted, unquestionably acquired his stock by his forfeiture of it. Thompson’s Liabilities of Stockholders, §194; Brice, Ultra Vires, 2 ed, 385, Green’s 2 ed. 191; People v. Albany and Susquehanna R. R. Co., 55 Barb. 344-370; State Bank Ohio v. Fox, 3 Blatch. 31; Vail v. Hamilton, 85 N. Y. 453; City Bank of Columbus v. Bruce, 17 N. Y. 507 ; State v. Smith, 48 Vt. 266. The stock represents an interest in the property of the corporation in this case. When the plaintiff, by his default, relinquished this interest, the act of relinquishment relieved the property of the corporation from his claim upon it. In other words, his interest, represented by his stock, reverted to the company. It could go nowhere else. And if it reverted to the company, the company, under the decisions cited, has the right to use and reissue it. Any suggestion, if it can be made, that the stock is blotted out of existence or nullified, leads to the same conclusion. In such case the capital stock of the company was decreased by 6523 shares, and the value of the shares of the remaining stockholders was thereby so much increased. That is to say, the interests of the plaintiff cannot, by merely saying so, be annihilated. They are immediately shown to be of value to some one else upon his relinquishment of them. They had passed to the other stockholders in a body, or in other words, to the company, and the company having acquired them, may, if it choose, under the decisions cited, use them as it uses its other property. Upon any consideration of the question, the conclusion is inevitable that the stock, when forfeited, became the property of the company. As a necessary consequence it possesses the right to use it.
    V. Equity will not relieve from a forfeiture of this character. Story Eq. § 1325 ; Sparks v. Liverpool Water Works, 13 Ves. 428; Small v. Herkimer Manuf. Co., 2 N. Y. 330; Attorney General v. North American Life Ins. Co., 82 Ib. 172; Germantown Passenger Railway Co. v. Fitler, 60 Penn. St. 124; Prendergast v. Turton, 1 Y. & C. (New Rep.) 98; Clarke v. Hart, 6 H. L. Cases, 633; Lesseps v. The Architect Co. of New Orleans, 4 La. Ann. 316. If he asks relief in equity, he must do equity. It is not equitable that he should allow others to bear the heavy burden of maintaining a crippled company under adverse circumstances, and then, when he perceives a prospect of their gaining some - advantage as the fruits of their contributions, should come forward and claim a share in that, which he has not only not earned, but has done his best to dissipate. Even were the case one where the ordinary equitable rule as to forfeitures could be applied, the court should immediately deny his application.
    YI. The “ arrangement ” claimed to have been made with Mr. Learned cannot avail the plaintiff as a ground for relief, [a.) At best, the evidence shows that the engagement was for a notice of adjournment of the sale. It has, therefore, been fully carried out by the notice to the plaintiff of February 6, 1885. (b.) The president had no power or authority to bind the company by any such alleged arrangement. His power is measured by the by-laws. Queen v. The Second Ave. R. R. Co., 35 Super. Ct., 154. The by-law of this company which defines the powers of the president allows him to manage the concerns of the corporation “in accordance with the direction of the board of trustees.” No direction of the board of trustees allowing the president to make arrangements for the waiver by the company of its rights in stock forfeited to it, was shown or was ever given. The president has no power which is inherent in his position. He is simply the company’s presiding officer, and as such has no power in addition to that of any other director. McCullough v. Moss, 5 Den. 567 ; Westerfield v. Radde, 7 Daly, 326; Fulton Bank v. N. Y. & Sharon Canal Co., 4 Paige, 127 ; Marine Bank v. Clements, 3 Bosw. 600, (aff. 31 N. Y. 33) ; Alexander v. Cauldwell, 83 N. Y. 480 ; Chicago & N. W. R. R. Co. v. James, 22 Wis. 194; Titus v. Cairo R. R. Co., 37 N. J. Law, 98 ; Stokes v. N. J. Pottery Co., 46 Ib. 237; Hodge’s Exr. v. First Nat. Bank, 22 Gratt. 51; First Nat. Bank v. Kimberlands, 16 W. Va. 555. Indeed, if the board of trustees had conferred upon the president authority to do the act claimed, it would not have been valid. The stockholders had conferred authority on the board of trustees simply to sell the forfeited stock.
    VII. If otherwise entitled to relief, the plaintiff was not here so entitled, by reason of his great laches. A year and a half had elapsed from the date when he claims to have acquired certain nebulous rights to redeem his stock, to the date that he made his present claim. In the meantime the position of the company had greatly changed. It could not now be placed in the position in which it was in February, 1885. It has been enabled to exist through the contributions and efforts of stockholders in good standing. It has formulated an arrangement to utilize its forfeited stock to meet its necessities, and has the prospect of future prosperity through these means. If the plaintiff claimed rights, it should have had immediate notice of them. Under such circumstances the plaintiff is never allowed to sleep on his rights. As Lord Romilly has said (1 L. R., 9 Eq., 263, 268) : “ The leading principle in all these cases is this : a man must not play fast and loose; he must not say, ‘ I will abide by the company if successful, and I will leave the company if it fails.’ ” Courts of equity have always refused relief to a plaintiff whose delay in asserting his rights would make it unfair to others to grant relief. In this case, it would not only be in the highest degree unfair to bona fide stockholders to grant him relief, but it would be taking away their vested rights in the stock, which he by his negligence and default has forfeited, and completely shut them out from the prospect of again making their stock valuable.
    The court was jn error in finding that the plaintiff was not guilty of laches.

      S. A. & D. J. Noyes, attorneys, and Samuel A. Noyes, of counsel for respondent, argued :
    I. In bringing this action the plaintiff proceeds upon the theory of an asserted or alleged forfeiture of his stock. Sweeny v. Smith, Law Rep. Vol. 7, Eq. Cases, 324. The doctrine laid down in the case of Walker v. Ogden (Bissell’s U. S. Circuit Court Reports, Seventh Judicial District, Vol. 1, page 287) is decidedly in conflict with the defendant’s contention that “the plaintiff’s stock was ipso facto forfeited by the default of May 1, 1884.” “ It seems that where the articles of agreement do not provide an express mode in which stock is to be forfeited a valid foreclosure cannot be made without the decree of a court of equity.” (Head note in the above case.) “ The question is, can the mere declaration of the trustees have the effect to foreclose all Walker’s interest in this property ? I think not. I am inclined to the opinion (although I do not put my decision of this case on that ground) that a judicial decree of foreclosure was necessary in order to bar the rights of Walker to redeem his stock. Opinion of Judge Drummond, 1 Bissell’s U. 8. Circuit Court Rep. 287.
    II. A proper case is made for equitable relief under all the facts disclosed on the trial of this case. Giles v. Austin, 62 N. Y. 486 ; 38 Super. Ct. 215 ; Walker v. Ogden (Bissell's U. S. Circuit Court Rep. Vol. 1, page 287), is directly in point as an authority for what we claim in this case. The case of Sparks v. Liverpool Water Works, 13 Vesey, 428, was held in Walker v. Ogden not to apply to a case like this. In Glass v. Hope, Vol. 16 Grant's Reports, Up. Can. Chan, page 420 it was decided : “ The proceeding of a corporation to forfeit shares in the absence of a personal representative of a deceased stockholder is illegal. The plaintiff is entitled to relief from the forfeiture, and the lapse of time between the attempted forfeiture of the shares and the procuring letters of administration is no answer to the plaintiff’s claim.” In Sparks v. Liverpool Water Works Co., 13 Vesey, 428 and Att’y General v. North America Life Ins. Co., 82 N. Y. 189, a different conclusion might have been reached if, as a matter of fact, when the calls in the one case, and the premiums and interest on premium notes in the other, became due, the president of the company had granted, or assumed to grant the stockholders or the assured an extension of time, in which to pay his calls, or his premiums or interest on premium notes, and had extended this time to make such payments until notice from the company.
    1Y. The evidence which proves the arrangement made by Mr. Learned with the plaintiff or with Mr. Higgins, on his behalf, is clear and uncontradicted. Mr. Learned was the president and chief executive officer of the company.; and the only party to whom the plaintiff could apply for an adjournment of the sale, or for time in which to pay his assessments. He had charge of its business and assumed to represent it in this matter, and the plaintiff was warranted in believing and relying on such assurance as he gave him through Mr. Higgins. Bliss on Life Ins., 2d ed., § 192, 306.
    - V. The plaintiff under all the facts and circumstances of the case is not guilty of laches in commencing and prosecuting this action. He has all along relied upon the statements and assurances of Mr. Learned and had a right to do so. He very properly had a right to expect that his rights would not be cut off without notice, and as soon as he received any intimation that the company intended to forfeit and confiscate his stock in or about June, or early in July, 1886, he commenced this action. No one knows better than the defendants and their counsel, that the company and the plaintiff’s 6,523 shares are both of them practically just where they were in November, 1884, or January, 1885. The company has not completed any arrangement looking toward any future development of its interests and no portion of the plaintiff’s stock has ever been used, sold or disposed of. Finally, it fully appears that the plaintiff is and has for some time past been a large if not the largest stockholder of this company, sometimes holding 17,000 and now for five years 6,523 shares of its stock, which has cost him the enormous sum of more than four hundred thousand dollars; that he has paid eight out of ten assessments amounting to some $50,000; that he has honestly and in good faith relied on the assurances of the president of the company in delaying the payment of the assessments and interest due on his stock which he is now ready and willing to pay with interest; that he has not wilfully done or committed any act which conflicts with the relief which he asks for ; that the payment of his assessments and interest will more than compensate the company for any possible damage which it can have sustained in view of the fact that its stock is worthless ; that any apparent laches are fully explained and excused; and if all these facts do not fully entitle him to the equitable relief which the court below has granted him, it would be difficult to conceive of any case that does warrant the interposition of a court of equity.
   By the Court.—O’Gorman, J.

The action was tried at special term, and its main purpose was to obtain a decree cancelling the forfeiture of plaintiff’s 6,523 shares of the capital stock in the defendant corporation, because of his failure to pay assessments on said stock, and permitting him to redeem the stock so forfeited on his payment of the amounts due on such assessments with interest.

It is not alleged in the case on appeal that all the evidence received at the trial is set forth in the case, and therefore the findings of fact made by the learned trial judge must be assumed to have been supported by competent and sufficient evidence. From these findings of fact, it appears that plaintiff, before November, 1881, had purchased in the open market, and was, since then, the owner of 6,523 shares of the capital stock in the defendant company, which is a corporation duly created and organized by and under the laws of this state, with a capital of one million dollars, divided into 40,000 shares. The plaintiff paid, in common with the other stockholders, eight assessments on his shares. He did not pay an assessment of one dollar per share duly called for by the corporation and due on May 1, 1884, being the ninth regular assessment, and he did not pay another assessment of one dollar per share, duly called for by the companjq and payable on November 1,1884, being the tenth assessment. As to the former of these calls, on March 8, 1884, the defendant company caused to be served on plaintiff a notice in the following words : “New York, March 15,1884.—Notice is hereby given that the directors of this company, by authority specially conferred by the shareholders, hereby call for a 6 contribution or assessment ’ of one dollar per share, payable on the first day of May next. Stockholders are requested to read and conform to the stipulation on their share certificates, as failure to pay is without remedy. Interest at the rate of seven per cent, per annum will be allowed on payment made prior to 1st May.—B. E. Strong, Vice President.” About- April 15, 1884, a further notice was sent by defendant corporation to plaintiff, which was in these words: “New York, April 15, 1884.—Stockholders are reminded that after May 1, next, all certificates for shares, on which the contribution or assessment then due is unpaid, will be i null and void,’ pursuant to stipulation, indorsed on all certificates, and that the directors and company will be powerless to restore' any interest to delinquent shareholders. —B. E. Strong, Vice President. N. B. As a matter of form, the above reminder is sent to every stockholder of record; therefore, to holders ivho have paid the ‘ contribution or assessment ’ due as above on their stock, this will not be considered a notice of delinquency.” As to the latter of these calls, being for payment of an assessment on November 1, 1884, the defendant company also caused notices to be served on the plaintiff, in one of which, dated September 15, 1884, was included the following statement: “ This notice does not apply to the following certificates, which are already void for non-payment of an assessment due .May 1, last;” and the notice also contained a list of certificates of stock so forfeited, including the delinquent shares of the plaintiff. And thenceforth in all communications from the company to the plaintiff, his said delinquent shares were treated as having been forfeited. Neither of these assessments was ever paid by the plaintiff. On September 18, 1884, plaintiff was notified that all of the stock forfeited for non-payment of these assessments would be offered for sale on November 7, 1884, at a price not less than the sum due thereon and interest; and that parties desiring to re-acquire their interests could have no preference upon offers for stock in excess of the minimum rate therein fixed, of §2.05 a share. The company derived its authority to make these calls and serve these notices on stockholders, from an agreement between it and them, set forth below. When the plaintiff purchased his stock in the company, he received a certificate therefor, in the same words and to the same tenor and effect as all the certificates given by the company to all others of their stockholders. On each of these certificates the following words were indorsed: u The capital stock of this company, having been issued full paid for property, pursuant to law, this certificate is issued and received with the understanding, and the holder hereby stipulates, that the directors of this company may from time to time, but at intervals of not less than six months, make calls on certificate holders for contributions or assessments, of not more than one dollar each per share, and to an amount not exceeding ten dollars per share in the aggregate. The payment of such calls to be optional with the holder, but the failure to pay any such call when due and payable—time being of the essence of this stipulation—shall be, and be taken to be, a relinquishment by the holder of the shares on which payment shall so fail to be made, and this certificate, or any interest thereunder in regard to such shares, shall be null and void.” On or about September 15, 1884, and November 7,1884, and subsequently, the defendant company assumed to forfeit plaintiff’s stock for non-payment of these assessments, and on the latter day advertised a sale of all its delinquent stock, including all the stock of the plaintiff, at a minimum price of §2.05 per share, but none of the plaintiff’s shares ¡was then or since then ever sold by the company. Adjournments of this threatened sale took place from time to time. On January 19 and 20, 1885, plaintiff requested from the company, through its then president, an adjournment of the sale of his delinquent stock, which sale had been previously adjourned to January 20,1885, and plaintiff then received from the company, acting through its then president, who was also its chief executive officer, the promise and assurance that the sale of the plaintiff’s delinquent stock should be kept alive and adjourned from time to time, until plaintiff’s arrangements were completed to protect his stock; and that plaintiff should have full and ample notice of any sale or of any adjournment affecting his stock or of anything affecting his stock. Plaintiff believed and relied on these promises and assurances. He did not subsequently receive from the company any notice of any sale or adjournment of sale of his delinquent stock; but he did. receive, in answer to his telegram to the president, a letter written by the secretary of the company to the effect that, at the request of plaintiff, the sale of the delinquent stock which had been rendered null and void for his non-payment of assessments, was further adjourned to the 20th of January, 1885. In June, 1886, he made formal protest, in writing, against any forfeiture of his stock as illegal, and against any transfer of the same. Plaintiff never made any tender to the company of the amounts due and unpaid on account of these two assessments, or either of them, and tiffs action was begun by him on July 16, 1886.

The learned trial judge held, as conclusions of law, that the stipulation having been assented to by all the stockholders, was valid and binding on the plaintiff; that the failure of the plaintiff to pay the assessments did not vest the title to his stock in the company, so that it could re-issue it; that the effect of the forfeiture was simply to terminate the right, title and interest of the plaintiff as holder of said stock, to any interest in the corporate property ; that plaintiff’s delinquent stock did not become the property of the company, nor was there any power given to or in the company to sell the shares of stock held by him, or to dispose of them in any way; and that plaintiff was entitled to be relieved of his forfeiture, on payment of the amounts due by him on the assessments, with interest.

The contention on this appeal is, whether, it being ccneeded that the failure of the plaintiff to pay the assessments did work a forfeiture of his stock, and that such forfeiture terminated his right and title as holder of the stock to any interest in the corporate property, the inference is not legitimate and inevitable that the right and title to the stock thus forfeited did vest in the company at the instant on which the forfeiture took place, so that the company could reissue it, or sell it, or dispose of it in any other lawful way, free and discharged from any adverse claim of the plaintiff.

In considering this question, it is proper to give consideration and due effect to the language of the stipulation itself which provides expressly that the failure to pay calls when due,—time being of the essence of the stipulation,—shall be, and be taken to be, a relinquishment by the holder of the shares on which payment has not been made, and the certificate and all interest thereunder in regard to such shares shall be null and void.” It seems hard to imagine any language that could more clearly indicate the intention of the parties to this stipulation, that all possession, control of, title to, and interest in the" delinquent stock, theretofore vested in the holder, should thereafter cease to exist, and that, upon the occurrence of the act of delinquency, he, should cease to have any share or part in the property or assets of the corporation, or claim against the corporation or its stockholders. The result would also follow, that the corporation would, from that time, have no claim against him for further assessments. The stipulation was a contract between each stockholder and the corporation, and one another, and on the forfeiture by any stockholder of his interest and right to a distributive share of the corporate property, assets and profits, the rights of the corporation and of the other stockholders to share in the corporate property which he had forfeited by his delinquency, ipso facto, came into existence and vested in them.

The shares of the other stockholders, who thenceforth composed the corporation, became enhanced and increased in value, by the addition of the shares which the delinquent stockholder had lost. The idea that he had forfeited his stock carries with it the conclusion that the interest in the corporate property, which his stock had represented, reverted to and became absorbed in the corporation and its stockholders. Their right to have and enjoy that increase was valuable, and became vested in them and each of them, and of that right, they could not be divested, without their own consent or due process of law. Morawetz on Private Corporations, § 316. They might have consented to waive their claims to share in the interest of the delinquent stockholder, which he had forfeited, on payment by him of the assessment due, and interest.

They did, for a considerable time, give plaintiff ample opportunity to recover his forfeited stock on such terms, or terms almost as easy. But he took no steps whatever to avail himself of such opportunity, and the non-delinquent stockholders continued, on all occasions, to assert the right of the company to treat the plaintiff’s stock as forfeited and null and void, as provided for in the stipulation. Thus, whether the stockholders who paid the assessments did or did not sell the forfeited stock, or re-issue it, was not a matter in which the plaintiff had any interest. He had ceased by his own delinquency and laches, to be a stockholder, and had no rights, or interest or concern in the corporation to assert or defend.

That the stockholders in good standing had the right to sell or re-issue stock in place of the delinquent forfeited stock, would seem to follow from the extinguishment of plaintiff’s rights in that stock, even without any special authority to do so expressed in the stipulation ; but that question need not be decided here. It is enough to say that plaintiff’s rights as to that stock had ceased to exist, and he had no voice in the matter and no right to object to what the corporation did with it.

But it is contended, on the part of the plaintiff, that the corporation entered into a special agreement with him not to sell his delinquent stock without notice, and that notice was not given. On that subject, the trial judge found that on January 19 and 20,1885, the plaintiff received from the company, acting through its president, the promise and assurance that the sale, of plaintiff’s delinquent stock should be kept alive and adjourned from time to time, until plaintiff’s arrangements to protect it were complete, and that he should have ample notice of any sale, and that no notice of any sale was given to plaintiff by the president. To this claim, it may be answered, that no sale of the plaintiff’s delinquent stock ever did take place; and again, that although no notice was given him by the president in person, such notice was given by the secretary of the company, in answer to the request of the plaintiff telegraphed to the president; and that the president’s promise to the plaintiff was thus substantially kept good. But the plaintiff’s delinquent stock having been forfeited and become null and void, and all his interest therein having become vested in the non-delinquent stockholders who thenceforth constituted the company, they had acquired valuable rights and interests in the share of the corporate property, represented by that stock, of which they could not be divested by the president, by virtue of any power in him inherent in his office, and the trial judge found that there was no evidence that the board of trustees ever gave him any direction of any kind relative to the delinquent stock.

The remaining question is whether, under all the circumstances of this case, the plaintiff has shown that h 3 is entitled to relief, against this forfeiture, from a court of equity.

It has been said that a court of equity abhors forfeitures. It is true that it is indisposed to aid in the infliction of a forfeiture, but it is by no means true that it always lends its active assistance in preventing forfeitures from taking effect. Where the forfeiture is clearly intended to be a mere security for payment of money (as for instance a right of entry on non-payment of rent), there it is treated as a mere security and in the nature of a penalty and relievable. But where the forfeiture arises from the breach of another covenant of a collateral nature, as for instance, a covenant to repair, although the compensation might be ascertainable, yet it has been held that courts of equity ought not to relieve, but should leave the parties to their remedy at law. Story’s Eq., §§ 1321, 1322.

On considerations of public policy also, and of the necessity of prompt performance in order to accomplish public or corporate objects, courts of equity, in cases of non-compliance by stockholders with the terms of payment of their installments, at the times prescribed, by which a forfeiture of their shares is incurred under the by-laws, have refused to interfere by granting relief against such forfeiture. Story’s Eq., § 1325; Sparks v. Liverpool, &c., 13 Ves. 433, 434; opinion of court set forth in extenso, in note to § 1325 Story’s Eq. Jur.; Pendergast v. Turton, 1 Young & Coll., New Rep., 98, 110, 112.

It seems manifest that, in cases like the case at bar, prompt and punctual payment of assessments must be essential to the success of the corporate undertakings, and that delays in making prompt and punctual payment, and the uncertainty of receiving the required funds at the time called for, would tend to perplex and paralyze the execution of its purposes and plans and produce disastrous failure of its efforts.

The consciousness that such relief against a forfeiture was attainable in such a case, even in spite of the strongest expression in the stipulation or agreement that the act by reason of which the forfeiture was incurred, was specially obnoxious, would give the delinquent stockholder, as in the case at bar, full license to pay his contribution to the corporate expenses, or leave them unpaid, according to his own will and pleasure, thus throwing the weight of supplying funds to the corporation on the stockholders, with the right still retained by the delinquent stockholder to stand by, as long as he pleased, and until the better prospects of corporate success made it to his interest to renew his proprietary relations with the company.

This would seem to me to be a trifling with the obligation, and an offence against the sanctity of a contract, which it would be against public policy to encourage, and which a court of equity should refuse to protect or promote.

In the case at bar, none of the ordinary grounds for equitable interference, exist. There was nothing harsh, or sudden, oh* secret, or oppressive in the action of the company after the forfeiture of the plaintiff’s delinquent shares had taken place. There was no deception on its part—no mistake on his. His own delay in taking steps to re-instate his delinquent stock, was laches, for which no justification or excuse appears ; and his appeal to the protection of the court, unless it is due to him as a strict right, has little or no support in any reason for indulgence that is presented in the case.

In my opinion, the contract set forth in the stipulation, is clear, reasonable, and in all respects binding; and should be, in all respects, enforced without interference of a court of equity to sanction or sustain its violation.

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

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


author: By the Court.—Truax, J.

text:
    GEORGE W. MANSON, Respondent, v. THE MANHATTAN RAILWAY Co., Appellant.

      Elevated Roads—Injuries from scales of iron falling into street, liability for—Round to use due care' and skill in operating rocuf, and to take all reasonable means to guard against such injuries—Charge, correctness' of—Refusal to charge, no error inr—.Devices to prevent such falling, questions concerning, as to propriety of.

    In an action to recover damages for an injury alleged to have been received from the falling of a scale of iron from the track of an elevated railroad upon the plaintiff, who was a pedestrian in the street below, there was evidence to the effect that defendant had allowed scales of iron to accumulate on portions of its structure, which were likely to be, and were, blown down by the wind or knocked off by the motion of the ears; that one of these scales caused the injury complained of; and that by the exercise of ordinary care and attention the accumulation of these scales could be prevented. The court charged in substance, that defendant had a right to run its trains through the street in question; that the road was well built and built, according to the special requirements of the law; that there was no evidence of negligence in its original construction; that for the consequences incidental to a careful and skillful operation of the road, defendant was not responsible; that it was the duty of the defendant to take all reasonable means to guard against injurious consequences, even if that involved the making of additional fixtures not contemplated from the beginning, so long as their, adoption did not involve a radical change in the general construction of the road; that it was not bound as against the plaintiff to use the best and most select safeguards which human skill and ingenuity have invented and brought into use to prevent accident, but that it was bound to use due care and skill in operating its road; that plaintiff to recover must establish by competent proof that his injury was caused by some negligence or want of care on the part of defendant in the operation of its road, and that if defendant had done its duty within the rule above laid down by the court, the escape of that particular scale would not have taken place; that the jury must be able to form a judgment where that scale came from ; and that unless plaintiff’s case came up to all these requirements, the verdict must be for defendant.

      Held, (1) That the charge was correct. (2) That it was not error to refuse to charge in its very terms a request, the substance of which was embodied in the charge as made, to wit: a requestto charge that the proof showed that defendant had complied with the requirements of the law, that the legislature had authorized it to operate its road and structure built according to plans, specifications and requirements established 5y proper lawful authority, and therefore defendant could not be held responsible for damages caused by such operation, provided the operation be carefully and properly conducted. (3) That it was not error to refuse to charge that the preponderance of evidence was not sufficient to authorize the jury to find that the injury to the plaintiff was occasioned by defendant’s negligent operation of the road. (4) That it was not error to refuse to charge that defendant was only obliged to use such contrivances as were in known practical use under similar or parallel circumstances. (5) That it was not error to refuse to charge that the placing of iron strips or pans under the track related to the construction and not to the operation of the road. (6) That it was not error to refuse to charge that there was no evidence that the particles which injured plaintiff had accumulated on the structure, other than the inferences which might be drawn to that effect from the circumstances testified to. (7) That it was not error, in view of the charge as made, to refuse to charge that defendant was not obliged to use appliances which would produce other kinds of injury, even if such appliances would prevent the accident in question.
    Questions as to devices to prevent parings falling into the street below, put to witness on plaintiff’s behalf in rebuttal of evidence given on defendant’s behalf tending to show that dust and scales of iron could be kept from falling into the street only at a great expense, are properly • asked, and the over-ruling objection to them is not error, especially ' where the witness among other things, testified that such falling could be prevented by defendant having its trackmen as they go along the structure, scrape this material as it accumulates, into little pans not attached to the structure, but capable of being removed and emptied.
    Before Sedgwick, Cli. J., Trtjax and Dugro, JJ.

      Decided June 14, 1887.
    Appeal from a judgment in favor of the plaintiff, and from an order denying a motion for a new trial.
    The action was brought by the plaintiff to recover damages for injuries alleged to have been sustained by him by being struck in the eye by a small particle of iron, which fell on him from the defendant’s road while riding on the front platform of a surface horse-car in West Broadway, through which street the defendant’s road is operated. The alleged negligence consisted in defendant allowing its railroad track to become worn, and scaly, and in allowing particles, of iron to accumulate on the structure of the said railroad, so that particles or scales of iron could be detached and thrown therefrom by defendant’s train of cars, and in not providing means to prevent the discharge or falling of such pieces, scales or other materials into the street beneath the track.

      Davies & Rapadlo, attorneys, sxAEdward 8. Rapadlo of counsel for appellant, submitted a brief on the facts, and cited:
    Steinweg v. The Erie Ry. Co., 43 N. Y. 123 ; Bevier v. D. & H. Canal Co., 13 Hun, 254; Collins v. N. Y. Central, 5 Ib. 503; Chicago Railroad Co. v. Smith, 11 Ill. App. 348; Hoff v. West Jersey Railroad Co. 45 N. J. (Raw) 201; Smith v. New York and Harlem, 19 N. Y. 127-133.

      King & Lightfoot, attorneys, and Charles A. Deshon of counsel for respondent, submitted a brief on the facts, and cited:
    5 Wait’s Actions & Defences, 327, and cases there cited, and commented on Searles v. Manhattan Railway Co., 101 N. Y 661.
   By the Court.—Truax, J.

The principal questions discussed upon the argument of this appeal related to alleged errors in the refusal of the court to charge certain propositions requested by the defendant, and in charging certain propositions to which the defendant excepted.

One of these requests was : “ That the proof shows that the defendant has complied with the requirements, conditions and plans established by the Commissioners of Rapid Transit appointed by the act of 1875, and that the legislature has authorized the defendant to operate the railroad in question upon a structure, built according to the plans, and according to the specifications and requirements established by said Commissioners, and therefore the defendant cannot be held responsible for damages occasioned by such operation, provided such operation be carefully and properly conducted.” This was charged in substance by the court, when it charged that the defendants had a right to run trains on their elevated railroad along and through West Broadway by steam, and that for consequences incidental to a careful and skillful operation of that road they were not responsible ; that there was no evidence of negligence in the original construction of the road; and that the road was well built, and built according to the special requirements of the law. The court also charged that in order to recover the plaintiff must establish, by competent proof, that his injury was caused by some negligence or want of' care on the part of the defendants in the operation of their road.

The defendant also excepted to the refusal of the court to charge that the preponderance of evidence is not sufficient in this case to authorize the jury to find that the injury to plaintiff was occasioned by the negligent operation of the railroad in question by defendant.” This exception is not well taken. There was evidence that the "defendant had allowed particles or scales of iron to accumulate upon portions of the structure, which particles were likely to be and were blown down by the wind, or knocked off by the motion of the cars along the track; that it was one of these particles which caused the injury to the plaintiff, and that by the exercise of ordinary care and attention the accumulation of these particles could be prevented. While the defendant is not bound as against the plaintiff, to add to the construction and equipment of its road and its cars the best and most select safeguards which human skill and ingenuity from time to time have invented and brought into use to prevent accident, it is bound to use due diligence and care in operating its road, so as not to cause injury to others. If it has failed to use this due diligence and care, then it is hable to one injured for its failure. There was evidence offered which tended to show that there was such a failure, and therefore it was not error for the court to refuse to charge as requested by the defendant.

These remarks apply to the request of the defendant to charge that the defendant is only obliged to use such contrivances as are in known practical use under similar or parallel circumstances, and to the other request that the placing of iron strips or pans, as testified, relates to the construction and not to the management or operation of the road.

The defendant also excepted to the refusal of the court to charge that there is no evidence that the particles which injured plaintiff had accumulated upon the structure, other than the inferences which may be drawn to that effect from the circumstances testified to.” This request admitted that the jury would be authorized in inferring from the evidence that the particles which injured the plaintiff had accumulated upon the structure. If such an inference could be drawn from the testimony, then it was not error for the court to refuse to charge as requested. But the court did charge, that the plaintiff, in order to recover, must establish by competent evidence, that if the defendant had done its duty, within the rule laid down by the court, the escape of that particular particle of iron would not have taken place;” that the jury must be able to form a judgment as to where that particular piece of iron came from; and that unless plaintiff’s case came up to all these requirements, the verdict of the jury must be for the defendant.

The defendant excepted to the refusal of the court to charge a that it was not obliged to use appliances which would produce other kinds of injury, even if such appliances would prevent the accident in question.” And defendant also objected to the charge of the court that “ it was the duty of the defendant to take all reasonable measures to guard against such injurious consequences, even if that involved the making of additional fixtures, not contemplated from the beginning, so long as their adoption did not involve a radical change in the general construction of the road.” There was no error in either one of these rulings by the court. The charge was in substance, as before stated, “ that the defendant was not bound to use the best and most select safeguards which human skill and ingenuity have invented and brought into use to prevent accident, but that it was bound to use due care and skill in operating its road.” What that due care and skill was the court instructed the jury.

One of the plaintiff's witnesses was asked if he knew of any device that would prevent a paring from falling into the street below. This the defendant objected to' upon the ground that it is immaterial rvhether the witness does know of any device that would, in his opinion, prevent it, and upon the ground that the legislature has designated exactly the way in which the road must be constructed in the act of 1875, chapter 606. This objection was overruled and the defendant duly excepted. The question was not directly answered. The witness did not mention any device but said that it would be quite competent for the defendant to have its trackmen regularly as they go along the structure, make it a part of their duty to scrape this material as it accumulates, and before it gets to be dangerous, into little pans which they could remove, and thus prevent it from dropping into the street, without any addition to the structure whatever—simply the exercise of care and judgment in the working of the road.

The liability of the defendant is defined in the case of Steinweg v. Erie Railway Co., 43 N. Y. 123, as follows : “ The defendant was negligent if it failed to adopt the most approved modes of construction and machinery in known use in the business, and the best precautions in known practical use for securing safety; in other words, if there were known and in use any apparatus or contrivance which, applied to the engine or to the track, would prevent the falling of dust and cinders into the streets, it was negligence in the defendant if it did not avail itself of such apparatus; but it was not bound to use every possible prevention which the highest scientific skill might have suggested, nor to adopt an untried machine or mode of construction.” The defendants had used the road for some years prior to the happening of the accident, and experience must have taught them that dust and flakes of iron were likely to accumulate on the track and be blown by every breeze into the street. They knew that the street was used, and that it was. not mprobable that the falling dust would cause injury to hose beneath the track. For this reason a high degree ,)f care is required of the defendant.

Sweeping the dust from the tracks in the manner suggested by one of the witnesses is a means of preventing an accident of the kind complained of in this case, so patent and so easy that it should have been employed by the defendant. It did not need that the witness should testify that such an appliance was in practical use, because the mere mentioning of it shows its worth. To sweep the dust from the track would have perhaps required the employment of a few more servants by the defendant and thereby increased the expense of operating the road, but that is no reason that the defendant should injure others. It had control over the cause of the accident and for its failure in not exercising that control'it was negligent.

These questions were properly asked in rebuttal. The defendant had sought to show that the dust and filings could be kept from falling into the street only at a great expense, and the answer to these questions tended to show that the filings and dust could be kept from falling into the street with little expense and without much trouble.

We are of the opinion that the judgment and order should be affirmed, with costs to the respondent.

Sedgwick, Ch. J., and Ddgro, J., concurred.


author: By the Court.—Sedgwick, Ch. J.

text:
    MARGARET A. CASE, Respondent, v. THE PHŒNIX BRIDGE CO., Appellant.

      Conditions precedent, matter in nature of-—Sufficiency of pleading as to— Damage, sufficiency of allegations as to.

    It was objected against the complaint in this action that no demand on, or notice to, defendant to perform the duty resting on it under the contract in the complaint set forth, was alleged, and therefore facts sufficient to constitute a cause of action were not alleged. Held, that conceding such demand or notice should have been made or given, they should have been so made or given only because they were in the nature of conditions precedent; and that as such conditions precedent, they were sufficiently alleged in the complaint by the averment therein of the due performance by plaintiff of all the conditions of the contract on her part.
    It was further objected to the complaint, that it showed no actual damage to the plaintiff from the acts complained of. The complaint in effect alleged that plaintiff and the force she had under pay to perform the work she coijtracted to perform upon certain materials and a certain structure, which materials the defendant contracted to furnish as rapidly as the progress of the work required, and which structure was to progress as fast as possible, were kept by the act and neglect of defendant, waiting an unreason aide length of time for such materials and structure, and that she was obliged to pay her men for their working time in fifty-five days more than she would have been had defendant performed the conditions of the contract on its part, to her damage of $4,290. Held, sufficient.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided June 23, 1887.

      Appeal from interlocutory judgment entered upon order overruling defendant’s demurrer to one of the causes of action in the complaint, and from such order.
    The cause of action demurred to was thus set forth : “ That at all the times hereinafter mentioned the plaintiff was, and still is a resident of and engaged in business in the city of Brooklyn, in the state of New York, and that the defendant was, and that it still is a corporation duly organized under the laws of the state of Pennsylvania. That on or about April 24, 1884, this plaintiff and the defendant entered into an agreement whereby this plaintiff agreed to sink about one hundred and fifty-four wrought iron piles about ten feet deep into the sand, for an iron pier at Cape May, in the state of New Jersey, and to place and secure iron transverse girders on top of the piles, and to put in place the transverse and lateral rods and struts designated in the plans and specifications which accompanied said agreement, and that all such work should be. performed within thirty days after iron sufficient therefor had been delivered, provided the iron so delivered was in proper form and adapted to said work, and was delivered in sufficient quantity, and that the floor of the pier was laid as fast as required for the erection of the iron work; and, whereby, the defendant agreed to pay to this plaintiff at the rate of twenty-seven dollars for each pile sunken, and to deliver all the iron so called -for by said agreement, plans and specifications, at the site of said pier, as rapidly as the progress of the work required, and to furnish a competent engineer to furnish lines and levels, and to lay the floor of the pier as fast as it was practicable, and to make payments to this plaintiff twice each week as the work progressed. That the plaintiff duly performed all the conditions of said contract on her part, but that defendant failed to deliver the iron called for by said contracts, plans and specifications, in proper form or adapted to said work or in sufficient quantity, or as rapidly as the progress of the work required, and also failed to lay the floor of the pier as fast as it was practicable to lay it, and that in consequence of such failures this plaintiff was delayed in the performance of her contract fifty-five days more than she would have been, had the defendant performed the conditions of said contract on its part, and was for said fifty-five days obliged to keep a number of men and her tools and machinery ready to engage in said work, and to pay said men for their working time in said fifty-five days, to the damage of this plaintiff forty-two hundred and ninety dollars.

      Shearman & Stirling attorneys, and Thomas G. Shearman of counsel for appellant, argued:
    L Neither demand nor notice is alleged in this case.
    II. It is abundantly settled by the decisions that one who has agreed to perform any act other than the mere payment of money is not bound to perform without a demand, unless a specific time and place are fixed for the performance, without any dependence on contingencies, or unless, in some other way, the intention to require performance, without demand, is clearly manifested. Boutwell v. O’Keefe, 32 Barb., 434; Moore v. Hudson River R. R. Co., 12 Ib., 156; Lutweller v. Linuell, Ib., 512; Lobdell v. Hopkins, 5 Cow., 516; Connelly v. Pierce, 7 Wend., 129 ; Bach v. Owen, 5 T. R., 409.
    HI. The case is clearly Avithin the well settled rule that “ whenever the fact upon which the defendant’s liability depends lies peculiarly within the plaintiff’s knowledge, notice thereof ought to be given by the plaintiff to the defendant, and the giving of such notice must be averred in the complaint.” Comyn's Digest, Pleader, C. 73; 2 Tillinghast & S. Practice, 94: Vyse v. Wakefield, 6 Meeson & Welsby, 442 ; affirmed 7 Ib., 126 ; King v. N. Y. Central, &c., R. Co., 66 N. Y., 181, 188.

      IV. This cause of action is also defective, because it fails to show any actual damage accruing to the plaintiff from the acts complained of. The plaintiff must state facts which raise at least a presumption that he has some interest in the performance of the particular covenant upon which he brings suit, and that he has suffered actual damage by the breach. Gould v. Allen, 1 Wend., 182; Rider v. Pond, 28 Barb., 447. For the purpose of showing that the plaintiff was injured by the defendant’s delay, the complaint avers “ that in consequence of such failure, this plaintiff was delayed in the performance of her contract.” But this is a mere conclusion of law, unsupported by any facts, and amounts to no more than a piece of blank paper. The words “ in consequence of ” are just like the word u thereby,” which is unquestionably a prelude to a mere conclusion of .law and a nonentity in pleading. Smith v. Hayes, Irish Reports, 1 C. L., 333, 335. The complaint is not helped out by the general allegation that this act was ■ “ to the damage of this plaintiff.” That also is a mere .legal conclusion and amounts to nothing in a pleading. McKyring v. Bull, 16 Ad Id, 297; Buffalo v. Halloway, 7 Ib., 493 ; People v. McCumber, 18 Ib., 515: Merritt v. Millard, 5 Bosw., 625; Walter v. Lockwood, 23 Barb., 233; Baldwin v. Buffalo, 29 Ib., 401; Lienan v. Lincoln, 2 Duer, 670 ; Schenck y. Naylor, Ib., 675.

      Edward S. Clinch attorney and of counsel for respondent, argued :
    I. The allegation of performance by the plaintiff is in the exact language required by the Code (§ 533).
    H. The plaintiff was not bound to give notice. The agreement on the part of the defendant was absolute- and unqualified, and the defendant was bound to perform without notice, and if it lacked knowledge it was bound to inquire. Board of Water Commissioners v. Burr, 56 Ad 2d, 667; Allamon v. Mayor, 43 Barb., 37; 2 Chitty, 329.

      III. On the argument at special term, the defendant claimed that the complaint does not show that the plaintiff has sustained any damage. The complaint alleges that in consequence of the failure of the defendant to perform its contract, the plaintiff was for fifty-five days obliged to keep a number of men and her tools and machinery ready to engage in said work, and to pay said men for their said working time $4,290. The plaintiff was obliged to do a certain thing” means that under compulsion she did that thing, and if this part of the complaint means anything at all, it means that the plaintiff, by reason of the defendant’s failure to perform, was obliged to keep her men, tools and machinery ready for work, and to pay under this compulsion, for their working days, to her damage. But even if no consequent damage was shown, the contract being a valid one, the plaintiff on the trial, on showing a breach by defendant, would have been entitled to recover nominal damages. Devendorf v. Wert, 42 Barb., 227; Mills v. Gould, 42 Super. Ct., 119.
   By the Court.—Sedgwick, Ch. J.

The part of the complaint demurred to, averred that the plaintiff and defendant entered into an agreement whereby plaintiff was to sink 154 iron pipes into the sand for an iron pier, and to do other work with iron, in and about parts of the structure of the pier; that the defendant agreed to pay to the plaintiff $27.50 for each pile sunken, and deliver all iron, which the plaintiff was to work upon under the contract, at the site of the pier, as rapidly as the progress of the work required, and to lay the floor of the pier as fast as practicable; that plaintiff duly performed all the conditions of this contract on her part, hut defendant failed to deliver the iron as required by the contract(C in proper form, or adapted to said work, or in sufficient quantity, or as rapidly as the progress of the work required, and also failed to lay the floor of the pier as soon as it was practicable to lay it; and that in consequence of such failure the plaintiff was delayed in the performance of her contract fifty-five days, and was" obliged to pay men as for their working time, in waiting, &c., to her damage, $4.290.

The first objection to this is that it does not aver that performance by defendant was demanded by plaintiff, or that notice was given to defendant by plaintiff that the state of the work required performance by defendant of its obligation under the contract. It is not necessary to decide now that such demand or notice should have been made or given. If they should, they were in the nature of conditions precedent to liability on the part of defendant. Under section 533 of the Code of Civil Procedure, in pleading the performance of a condition precedent in a contract, it is not necessary to state the facts' constituting performance, but the party may state generally that he duly performed all the conditions on his part, and in this complaint the plaintiff has averred due performance of ail conditions of the contract on her part. This objection cannot be sustained.

The other objection is that the complaint does not show any actual damage to the plaintiff from the acts complained of. In obeying section 519, by liberally construing the allegations of the complaint with a view to substantial justice between the parties, we may find in the complaint what will apprise the defendant that the plaintiff intends to prove that after she had duly proceeded with the work, as called for by the contract, she notified the defendant to furnish more pipe and iron, with which she could further proceed to perform her contract; that it did not furnish these within a reasonable time, but kept her and the force she had under pay waiting for an unreasonable time for the pipe and iron; and that she was obliged to pay so much more wages than she would have been if the defendant had performed its obligation within a reasonable time.

The judgment and order should be affirmed with costs.

Freedman, J., concurred.