author: By the Court.—Freedman, J.

text:
    FRANKLIN J. MINCK v. EDWARD MARTIN.

      Eusband and wife—Necessaries furnished wife, action against husband for, not barred by mere pendency of action for divorce, nor by that and the mere granting or refusing alimony.

    In the case at bar the action was for necessaries furnished the wife between July 15 and August 15, 1885, on the application of the wife but on the husband’s credit, the husband and wife during that period living separate and apart. It appeared on the trial of the action that on May 21, 1885, the wife commenced an action against her husband for separation and support, that a motion was made by the wife for alimony which was denied on July 24, 1885, and that the action was discontinued in January, 1886. There was also evidence given upon which the jury might have found that the defendant had forced his wife to leave his house and had thereafter refused to provide for her, although requested so to do, and that plaintiff had supplied her with the necessaries in question in good faith and in ignorance of the pendency of the action for a separation. The complaint was dismissed.

      Held, (1) that the dismissal of the complaint was error; (2) that the case of Gatlin v. Martin, 69 N. T. 393, was an exceptional case; and under the facts in the case at bar was not an authority in support of the dismissal of the complaint.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided December 30, 1886.
    Exceptions taken by the plaintiff ordered to be heard at general term in the first instance.

      Charles Putzel, attorney, and of counsel for plaintiff, on the considered in the :—
    I. The decision in Catlin v. Martin, 69 N. Y. 393, relied upon by the court and by the defendant herein, does not affect the case at bar.
    II. The necessaries were furnished by plaintiff to defendant’s wife after defendant refused to support her or to supply her with money or necessaries, and upon the credit of defendant. The sale took place after the wife was driven by defendant from his home, and after the denial by the court to grant her alimony.
    III. A husband who turns his wife, without cause, out of doors, sends with her a credit for necessaries (Bright, Husband and Wife, 9 ; Cromwell v. Benjamin, 41 Barb. 558; Johnstone v. Allen, 6 Abb. N. S. 306; Lord v. Thompson, 41 Super. Ct. 105 ; McGahay v. Williams, 12 Johns. 293 and 248 ; Blowers v. Sturtevant, 4 Den. 49).
    IY. While a divorce suit is pending, if no allowance is made to the wife, the husband is liable for necessaries furnished to her as though no litigation was in progress (2 Bishop, § 401; Keegan v. Smith, 5 B. & C. 375; Sykes v. Halstead, 1 Sand. 483 ; Dowe v. Smith, 11 Allen, 107 ; Johnston v. Allen, 39 How. 506 ; S. C. 6 Abb. N. S. 306; Lord v. Thompson, supra). If alimony is not allowed pending the proceedings, the husband is liable for necessaries furnished the wife while she is prosecuting the suit, although when the divorce was granted an allowance was made by the court to the wife for her support while the suit was pending, on the ground that the claim was against the husband and not the wife (Dowe v. Smith, 11 Allen, 107 ; Lord v. Thompson, supra).

      Blandy & Hatch, attorneys, and Charles Blandy, of counsel for defendant, argued :
    I. During the pendency of divorce proceedings the wife is presumed to be in the custody of the court, having cognizance of the divorce proceedings, and there is, during that period, no authority vested in her to charge her husband’s estate for the ordinary necessaries, and there is on the other hand no implied obligation on the part of the husband to pay for such necessaries. Her remedy is for alimony in the divorce suit (Catlin v. Martin, 69 N. Y. 393).
    H. The law in its wisdom makes abundant provisions for alimony in the divorce suit. If the circumstances are such that the wife should be awarded alimony, she gets it, and she must content herself with it. If, on the other hand, alimony is refused, it is because she is not entitled to it, presumably because she has no sufficient cause of action, in this case because the defendant had not abandoned her, but she him. That was an adjudication as between husband and wife, and the wife having contracted this debt afterwards, the inference was irresistible that she was endeavoring to circumvent the order of the divorce court, by making the husband pay indirectly what she failed to accomplish directly. The plaintiff stands in no better position than the wife, and she having abundant means of her own, he has a perfect remedy at law to recover this claim from her (Simmons v. Moore, 100 N. Y. 140).
   By the Court.—Freedman, J.

This action was brought to recover for necessaries furnished by the plaintiff to defendant’s wife. The evidence given at the trial would have authorized the jury to find that the articles furnished consisted of groceries and were necessaries; that they were furnished by the plaintiff on the wife’s application, but on the credit of the defendant, between July 15 and August 15, 1885, during which time the defendant and his wife lived separate and apart from each other and the defendant refused to provide for her; and that the defendant refused to pay, &c.

But it also appeared that on May 21, 1885, defendant’s wife commenced an action against the defendant for separation and support on the ground of abandonment ; that issue was joined in said action; that in it the wife made a motion for alimony during the pendency of the action; that said motion was denied on July 24, 1885; and that in January, 1886, the action Avas discontinued.

Upon these facts and the decision by the court of appeals of Catlin v. Martin (69 N. Y. 393), the trial judge directed a verdict in favor of the defendant and ordered plaintiff’s exceptions to be heard at general term in the first instance. The view taken was that during the pendency of the action for separation, no authority was vested in the wife to charge her husband’s estate for necessaries, and on the part of the husband no obligation would be implied to pay for such necessaries, and that her remedy was by motion for alimony.

This view and the disposition made of the case were erroneous. Catlin v. Martin was an exceptional case. The plaintiff was the mother-in-law of the defendant. She brought suit for alleged necessaries furnished by her to her daughter, the wife of the defendant. But it appeared that the defendant furnished and supplied necessary and suitable maintenance and support for his wife so long as she lived with him ; that he never neglected or refused such maintenance or support during the continuance of the marriage contract; that defendant’s wife voluntarily left him and lived with her mother who encouraged her in so doing and induced her to remain away from the defendant by offering to support and maintain her so long as she should continue to live with her. It was with reference to this state of facts that the defendant was held not liable, and that Allen, J., in delivering the opinion of the court of appeals, said, among other things, the following, viz. : “ After the commencement of the action for a divorce, there is no evidence that the defendant was called upon, or refused, to supply his wife with necessaries, and had the wife desired support pendente lite, her remedy was by application for alimony,.and there is no implied promise of the defendant to pay for necessaries furnished during that period. The board of the wife by the plaintiff during this time was but the continuance of the voluntary support furnished by her, as found by the referee.” And this was said in reference to the claim advanced by the plaintiff, that, although she might not be entitled to recover her full bill, she ought to be allowed to recover at least for the board of the wife during the pendency of the action for a divorce instituted by her, and for expenses incurred for medical attendance.

In the case at bar the facts are entirely different. At least there was evidence to the effect, and upon which the jury might have found that the defendant had forced his wife to leave his house and had thereafter refused to provide for her, although requested so to do ; and that the plaintiff had supplied her with necessaries in good faith and in ignorance of the pendency of the action for a separation.

In such a case a husband is liable for necessaries furnished to the wife even to one who was forbidden by him to trust her on his account, and such liability continues during the pendency of divorce proceedings at least up to the time of the actual payment of alimony (Lord v. Thompson, 41 Super. Ct. 115; Sykes v. Halstead, 1 Sandf. 483).

Plaintiff’s exceptions should be sustained, the verdict set aside, and a new trial ordered with costs to the plaintiff to abide the event.

I have so far treated the case as one coming before the general term upon a record which shows upon its face that plaintiff’s exceptions were ordered to be heard at general term in the first instance. But as the record also contains a notice of appeal from the order directing the verdict, and a notice of appeal from an order denying plaintiff’s motion for a new trial, and the said notices and orders contain several wrong recitals and references, from which possibly the inference may be drawn, although the fact does not appear, that the order originally made was afterwards vacated in so fa,r as it directed the hearing of plaintiff’s exceptions at general term in the first instance, if the fact should be that the said order was vacated to that extent, then the decision to be entered should be that the order denying plaintiff’s motion for a new trial should be reversed, the verdict set aside, and a new trial ordered with costs to appellant to abide the event.

Sedgwick, Ch. J., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    JAMES HENDERSON, Respondent, v. CHARLES ARBUCKLE, Appellant.

      Landlord and Tenant—Meter charges for Croton Water—Construction of covenant in lease.

    The payment by the tenant of meter charges for water supplied to the premises, which accrued prior to the making of the lease, and which áre, under the statute, a lien on the land and not a personal liability of the consumer, furnishes no defense to an action for rent of the premises ; there being no proof of any liability for such charges on the part of the landlord, or of a breach of any of his covenants, or of any duty or obligation resting upon him, in that regard.

      A fortiori, the payment of such charges by the tenant does not furnish a defense to an action for rent, where the lease, which commenced January 1, 1882, contains a covenant by the tenant to pay “ all rent or charges which is or may be assessed or imposed on said premises for Croton water on or before the 1st day of August, 1882.”
    Such a covenant embraces all rents or charges for Croton water existing against the demised premises at the time of the commencement of the lease.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided December 30, 1886.
    Appeal from judgment entered upon a verdict directed in favor of the plaintiff.
    The facts appear in the opinion.

      W. H. Townley, for appellant:
    I. A tenant obliged to pay a tax which the landlord was, by the terms of the lease or otherwise, bound to pay, may recover it back by action, or retain it from rent due or accruing (Garner v. Hannah, 6 Duer, 262, 1 R. S. 6th ed., p. 985, § 4). “ Where the tenant pays, in behalf of the landlord, sums which it was the landlord’s duty to pay, and which were charged upon the land, so that the failure to pay them would prevent the tenant’s possible possession of the property, the tenant is considered as. authorized by the landlord to make such payments, and treat the same as having been made in satisfaction, or part satisfaction, of the rent” (McAdam's Landlord and Tenant, 162). This extra water-meter rent or tax was a charge upon the land (Moffat v. Henderson, 50 Super. Ct. 211). In the absence of a covenant to pay, or of circumstances raising an implied promise on his part in favor of the lessor, a lessee is not bound to pay the regular or extra assessment rate for Croton water in the city of New York, or any other tax upon the premises (Moffat v. Henderson, supra).

    II. It is submitted that the clause in question only required the tenant to pay all rent or charge imposed upon the premises during the term of lease. It is conceded that Mr. Warmcastle did do this, (a) It is evident that a past-due water rent was not in the contemplation of the parties when they signed the lease. The tenant first knew of it when the water was cut off in February, 1882, and its full extent he did not know until he paid the bills. Henderson himself testifies that he did not require Warmcastle to pay these bills, and it appears that he made no claim that Warmcastle was obliged to pay them. (6) It has never been held that the expression “ all rent or charge which is or may be assessed or imposed,” &c., relates to debts, charges or taxes past due at the time the lease is made. Its universal acceptance is that of an obligation assumed by the t'nant for the period of his lease, fulfilled when he settles for all taxes which grow due therein. It has no retroactive effect, compelling the tenant to ascertain and defray all taxes and charges in arrears at the time he hires the property. It would be a great injustice if it were held retroactive, (c) If the intention of the parties was that the tenant should pay, as part of the rent, what was practically the debt of another, the contract should, by a proper employment of words, have so stated.

      James Henderson, respondent in propria persona, and S. Jones, of counsel:
    I. Defendant claims that Warmcastle was compelled by threats of the Department of Public Works to cut off the water to pay this sum, because, as he claims, a supply of water was necessary for the business Warmcastle carried on upon the demised premises. 1st. It does not appear that it was necessary that the water to be used in that business should be supplied by the Department of Public Works. 2d. There is no law, and there is no regulation of the department in evidence which authorizes the refusal to supply water to an occupant of premises because water bills accrued before he became the occupant, remained unpaid. Such unpaid bills are secured by being a lien on the fee of the premises. His payment, therefore, was voluntary.
    H. It nowhere appears that Henderson had any connection with the premises during the time when these bills accrued, or that he was obligated or bound to pay them. He did not covenant with Warmcastle to pay them, nor did he covenant with him that he should have Croton water supplied to him during the demised term. There is, therefore, no breach of any covenant entered into by Henderson, or of any duty or obligation resting on him.
    III. As between landlord and tenant (in the absence of express covenant), the landlord is bound to indemnify the tenant against only such charges for taxes and ground rent which he himself is bound to pay to the party in whose favor the charge exists.
    IV. For the reason stated in the second point, the provisions of § 4, Title 5, Chap. 13, Part 1 of R. S., have no application.
    V. Meter rents or charges are not charges on the consumer personally, but are taxes on the land (Moffat v. Henderson, 50 Super. Ct. 211).
    VI. Warmcastle by his lease covenanted to pay these rents.
    He covenanted and agreed to pay “ all rent and charges which is, or may be assessed or imposed upon the said premises for the Croton water.” This language necessarily involves an obligation to pay rent or charges then imposed; otherwise no force can be given to the words “ which is.”
   By the Court.—Freedman, J.

This action was brought to recover §203, and interest, as a balance due for rent on a lease made by Henderson, the plaintiff, to one Warmcastle, on which lease the defendant Arbuckle had become surety for the payment of the rent and the performance of the covenants to be performed by Warmcastle.

Arbuckle defends upon the ground that Warmcastle paid that sum to the Department of Public Works for meter charges for water supplied to the premises by the corporation of the city of New York for business purposes, prior to the commencement of the lease.

The sole question presented by the appeal is whether such payment is available to Arbuckle as a defense to the action.

The meter charges referred" to accrued previous to the making of the lease and were for water consumed by a former tenant of the plaintiff.

Such meter charges, or extra water rents as they are frequently called, are, since the statutes of 1870 and 1873, taxes on the land, and the consumer of the water covered by them is not personally liable for them (Moffat v. Henderson, 50 Super. Ct. 211).

Nor is there any evidence in the case that the plaintiff, during the time for which these charges accrued, had such a connection with the use of the said water, that he became personally bound to pay.

In his lease to Warmcastle the plaintiff did not covenant to pay them, nor did he covenant that the premises which consisted of stables, were free and clear from any such charge. So he did not covenant that Warmcastle should have Croton water supplied to him during the demised term. There is therefore no breach of any covenant entered into by the plaintiff, or of any duty or obligation resting upon him, and consequently the case does not fall within the provision of the statute (1 R. S. 6th ed.,p. 985, § 4), under which a tenant who was compelled to pay a tax which any other person by agreement or otherwise ought to have laid, is entitled to recover back the amount or to retain the amount from any rent due or accruing from him to such person for the land so taxed.

On the contrary, in the lease which commenced January 1, 1882, Warmcastle covenanted to pay “all rent or charges which is or may be assessed or imposed upon the said premises for the Croton water on or before the first day of August, 1882.” This covered much more than the covenant to pay “ the regular annual rent or charge,” considered in Moffat v. Henderson, (supra), or the covenant to pay “all ordinary yearly taxes, considered in Garner v. Hannah (6 Duer, 262). It embraced all rents or charges for Croton water existing against the demised premises at the time of the commencement of the lease.

For the reasons stated, Warmcastle had no right to look to the plaintiff for the payment of the said charges, and the defendant as surety stands in no better position.

The payment made by Warmcastle to the Department of Public Works was, under the circumstances of this case, a voluntary one as against the plaintiff. Such a payment can no more be used as the basis of a defense to a claim which the plaintiff is entitled to enforce, than it can be used to sustain an action to recover back the money.

There was no error in the proceedings at the trial, and a verdict was properly directed for the plaintiff.

The judgment should be affirmed with costs.

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


author: Bt the Cohet.—Freedman, J.

text:
    LOUISA PESSINI, as Administratrix, &c., Appellant, v. WILLIAM H. WILKINS, as survivor, Respondent.

      Action for causing death—Abatement of by death of defendant.

    The cause of action given by the statute (Chap. 450 L. 1847 ; Code Civ. Proc. § 1902), to the representative of a decedent, whose death was caused by the negligence of another, abates upon the death of the wrong doer, unless the plaintiff can show that at the time, of such death there was remaining in force a verdict or decision in his favor.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided December 30, 1886.
    Appeal by Ann E. Wilkins, as executrix, &c., of William H. Wilkins, deceased, from an order made at special term continuing this action against her as executrix.
    The facts appear in the opinion.

      Robinson, Scribner & Bright, attorneys, and John M. Scribner, of counsel for appellant:
    I. The cause of action given by the statute (Chap. 450, Laws 1847; Code of Civ. Proc. § 1902) to the representatives of a decedent whose death was caused by the negligence of another abates upon the death of the wrong doer, and an action cannot be maintained against his representatives (Hegerich v. Keddie, 99 N. Y. 258).
    H. Section 764 of the Code does not touch this case. It relates only to “ an action to recover damages for a personal injury.” This is strictly an action under the statute to recover damages for death caused by wrongful act, &c. (Code, § 1902). The distinction between such an action and one brought by the party himself for personal injuries sustained is clearly set forth in Hegerich v. Keddie (supra). See also definition of personal injury in section 3343 Code Civ. Proc.
    HI. Section 764 of the Code only allows an action to which it relates to be continued after a verdict, report or decision in favor of the plaintiff (Kelsey v. Jewett, 34 Hun, 11).

      James T. Byrne, and Benjamin F. Estes, for respondent:
    I. The plaintiff is entitled,-as matter of right, to the order appealed from, under section 764 of the Code. It was the undoubted intention of the legislature to provide that where an action had been commenced in the lifetime of the tort feasor, and had been prosecuted in good faith to a judgment or decision, the cause of action should not abate but should Survive, making it an exceptional case.
    II. The case of Hegerich v. Keddie (99 N. Y. 259), is not in point nor at all analogous to the one at bar. That action was not brought against the wrong doer, but was commenced in the first instance against his executor. Section 764 was not under consideration, and no construction was given to it; there had been no trial, judgment, decision or report, and the appeal was from an order sustaining a demurrer to the complaint.
   Bt the Cohet.—Freedman, J.

This action was brought under the statute against Jesse A. Marshall and William H. Wilkins, as co-partners, to recover damages alleged to have been sustained by plaintiff by reason of the death of her infant son which was caused by the alleged negligence of the driver of one of the defendants’ stages. After issue joined, and before trial, Marshall died, and the action was continued against Wilkins as the survivor of the firm. There were two trials of the issues. At the first trial, had in November, 1884, the jury disagreed. At the second trial, had in January, 1885, the plaintiff was nonsuited, and judgment was thereupon entered dismissing plaintiff’s complaint. From this judgment plaintiff appealed to the general term, but before her appeal could be argued, and indeed before the proposed case and the amendments thereto were settled, Wilkins, then the sole surviving defendant, died. This occurred in January, 1886.

Under the decision of the court of appeals in Hegerich v. Keddie (99 N. Y. 258), it must be held that, upon Wilkins’ death, the cause of action given by the-statute (Ch. 450 Laws 1847; Code Civ. Proc. § 1902), to the plaintiff for the death of her infant son, abated, unless it was saved by section 764 of the Code of Civil Procedure.

That section reads as follows, viz.: After verdict, report, or decision, in an action to recover damages for a personal inj ury, the action does not abate by the death of a party, but the subsequent proceedings are the same as in a case where the cause of action survives.”

The learned judge who made the order appealed from, seems to have conceded the effect of the authority of Hegerich v. Keddie (supra), to be, that plaintiff’s cause of action did not survive the death of Wilkins, but he decided, nevertheless, that under § 764 the action has not abated. This decision cannot be sustained.

In Kelsey v. Jewett (34 Hun, 11), the general term of the supreme court of the fifth department, said: “In our opinion, if a verdict for a personal injury is set aside, then the cause of action abates if the plaintiff dies before another trial is had, and the sole purpose intended to be accomplished by the provisions of § 764 is to save the estate of a deceased party the verdict, report or decision, which may have been rendered in his favor before his death. After a verdict or decision has been set aside as void or erroneous, the case stand t the same as if none had been rendered, the issues being untried and undetermined.”

This was said in a carefully considered opinion, and after a full examination I can perceive of no reason why this court should come to a different conclusion. From this it follows that if the construction of § 764 adopted in Kelsey v. Jewett was correct upon the facts of that case, the plaintiff in this case was bound to show that, at the time of the death of Wilkins, there was remaining in force a verdict or decision in her favor. This she did not do. On the contrary, the only thing she did show, was a decision against her.

The order appealed from should therefore be reversed with ten dollars costs and disbursements, and the motion for the continuance of the action denied with ten dollars costs.

Sedgwick, Ch. J., concurred. '


author: Ingraham, J.

text:
    GEORGE PEABODY WETMORE, Appellant, v. CATHARINE W. BRUCE, Respondent.

      Vendor and vendee—Real estate—Incumbrances—Qourt-yard—Recovery of deposit.

    Under a contract to sell and convey, free and clear of all incumbrances, the contract is conclusive on the right of the vendee to receive the property thus clear.
    A restriction which prevents the vendee from using a portion of the frontage otherwise than for a court-yard, is an incumbrance which, under the contract, absolves him from completing tire purchase.
    The vendee being absolved from completing the purchase, may recover from the vendor money paid, pursuant to the contract of sale, on account of the purchase to the auctioneer who conducted the sale on behalf of the vendor.
    By the contract, the specific performance whereof by the vendee (the defendant) was sought in this action, the vendor (the plaintiff) contracted to sell to the defendant certain premises known as No. 19 Washington Square North, and to give her a good title in fee simple, free and clear of all incumbrances, except a certain mortgage. The property was sold at auction, and the contract was in the form of terms of sale, with a memorandum subjoined, signed by the defendant, to the effect that she had purchased the property of the plaintiff for the price therein named, and agreeing to comply with the terms and conditions of sale as set forth in the terms of sale. Pursuant to one of those terms, and as required thereby, she paid to the auctioneer who conducted the sale the sum of $5,200, being ten per cent, of the purchase money. On examination of the title, it was found that there was a restriction which restricted the use of the frontage of the premises, to the depth of twelve feet, to the purposes of a court-yard only. Thereupon the defendant refused to complete, and demanded back her ten per cent.

      Held, 1st. That by the terms of the contract the defendant was conclusively entitled to a title free from incumbrances of every kind and quality. 2d. That the restriction was an incumbrance, free from which she was entitled, under the contract, to have the property conveyed. 3d. That defendant could counterclaim against plaintiff the ten per cent, paid by her, and the expenses of examining the title; and a judgment in her favor therefor was not erroneous.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided December 30, 1886.
    Appeal from judgment in favor of defendant entered on the decision of the judge at special term.
    The action was brought to compel the specific performance by the defendant (the vendee) of a contract for the sale of certain real estate in New York city, to wit, number 19 Washington Square (North). The sale was made at auction. The contract took the form of terms of sale, with a memorandum subjoined, -signed by the defendant, to the effect that she had purchased the property of the plaintiff for the price therein named, and agreeing to comply with the terms and conditions of sale as set forth in the terms of sale. By tlie terms of sale the property sold consisted of premises fronting on Washington Square, North, having a frontage thereon of 28 feet 2 inches, and having a width in rear of 28 feet l-¡- inches, and being bounded on the -sides by lines at right angles to Washington Square, North, running north on the east side 143 feet 8f inches, and on the west side 141 feet 10 inches. The terms of sale also contained the following clause: “ Ten per cent, of the purchase money, and the auctioneers’ fee of fifteen dollars on each lot, separately sold, to be paid to the auctioneers this day, together with the Exchange fee of three dollars, and for which their receipt will be given.” The defendant purchased the property for $52,000, and paid to the auctioneers who conducted the sale, pursuant to and as required by the terms of sale, ten per cent, of the purchase money, amounting to $5,200.
    Other facts appear in the opinion.

      A. P. and W. Man, attorneys, and William Man, of counsel for appellant, argued:
    I. The defendant cannot succeed on the defense of the court-yard agreement, as she had notice of it when she purchased. She twice visited the premises before purchasing, and of course could not go into the house without seeing that it was set back from the street, with a twelve-foot courtyard, and that every house in the block fronting on the square was set back in the same way. And also all the houses on the next block, easterly, fronting on the park, between Fifth avenue and University Place, are set back in the same way. The contract diagram and the posters and handbills used on the sale show that there was a court-yard of twelve feet. It was for the defendant to make out her defense. She must show not only the restriction and that it is a damage, but she must show that she had no knowledge of it, nor any notice to put her on inquiry. The plaintiff proved his title, and the defendant is proving affirmatively an easement of other parties upon plaintiff’s land. She must prove all the facts requisite to that defense (Stevens v. Hauser, 37 N. Y. 302). The very foundation of a defense of this kind, refusal to perform by vendee by reason of a defect in the article sold, is lack of knowledge thereof at the time of purchase. The court of appeals says in Riggs v. Pursell (66 N. Y. 199), that the purchasers in a similar case “ are chargeable with knowledge of what was apparent and obvious upon the premises.”
    II. The restriction is not in fact a damage, but is a benefit to the premises in question. A court-yard agreement is not an incumbrance in the absence of proof of actual damage (Riggs v. Pursell, 66 N. Y. 193). It was therefore necessary for the defendant to show affirmatively that in this case the agreement is a damage; the burden of proof is on her, and a clear case should be shown, not merely a possibility. Remote possibilities are not to be taken into consideration (Post v. Bernheimer, 31 Hun, 247). The objection must be a substantial one (Hellreigel v. Manning, 97 N. Y. 56). The. finding of the court below, that there was actual damage is against the evidence. (The evidence was here analyzed at large.) Even defendant’s witnesses admit that the court-yard appreciates the value of the property for dwelling-house purposes, and only depreciates it for business purposes. The property being a dwelling-house, it must be assumed that defendant purchased it for that purpose, there being no evidence to the contrary.
    HI. Again, should this block front ever change its character and become business property, the restriction will be rendered nugatory by the altered circumstances, as, for instance, if a railroad station be put in the square (Trustees Columbia College v. Thacher, 87 N. Y. 311; 1 Story Eq. Jur. [10th ed.], § 750).
    IY. The court erred in giving judgment against the plaintiff for the $5,200 deposited by the defendant on her purchase with the auctioneer. The money was deposited with the auctioneers. They acted as stakeholders. The plaintiff could not get the money, except by surrender to him of their receipt, held by the defendant, with her endorsement or direction to the auctioneers to pay it to the vendor. There was no evidence that the plaintiff ever had the receipt, or that the defendant ever tendered it, nor that she had not, in fact, received her money back from Ludlow & Co. The auctioneer in such circumstances is as much the purchaser’s agent as the vendor’s. To establish her right of action for the deposit, the defendant must show that she had at least demanded back her money before suit brought, and offered to surrender the receipt.

      De Witt, Lockman & De Witt, attorneys, and Charles Jones, of counsel for respondent, argued:
    I. In every contract for the sale of land there is an implied warranty on the part of the vendor that he has a good title to that which he assumes to sell, unless such warranty is expressly excluded by the terms of the contract (Burwell v. Jackson, 5 Selderi, 535). And in the present case, by the express terms of the contract, the lot and house were sold by a title in fee simple, and were to be conveyed free and clear of all incumbrances, except a mortgage for $40,000, which the defendant was to assume.
    LE. The court-yard agreement made by the former owner of this lot and the adjoining lots fronting on the street is an incumbrance on the lot in question (Trustees v. Lynch, 70 N. Y. 440; Lattimer v. Livermore, 72 Ib. 174; Phoenix Ins. Co. v. Continental Ins. Co., 87 Ib. 400; Perkins v. Coddington, 4 Robt. 647; Du Bois v. Darling, 44 Super. Ct. 436; Roberts v. Levy, 3 Abb. N. S. 311;
      Anon., 2 Abb. N. C. 56; Matter of Whitlock, 32 Barb. 28; Estate of Sarah Anders, 12 Phila. (Pa.) 45.
    IDE. The court found that the defendant, at the time of and prior to the sale, had no notice of the restrictions and incumbrances created by the court-yard agreement. The agreement is not mentioned in the terms of sale, and it is not pretended that any notice was given of it at the time of or prior to the sale. All the evidence on the subject is, that the defendant visited and examined the house twice. Of course, she might have seen that there was a court-yard; and it also appears by the diagram that the house was set back twelve feet from the street. But this does not show, or tend to show, that there was an agreement that bound the property in perpetuity, nor was it sufficient to put her on the inquiry as to whether there was any such agreement. And this is so, especially as by the terms of sale the property was to be conveyed free and clear of all incumbrances, except the one specified mortgage. The defendant had the right to rely upon the contract, and to insist upon the title which the vendor had agreed to give, even if she had notice.
    IV. The court also found that the restrictions and incumbrances created by the court-yard agreement are a damage to the lot of land in question, and injure its salability and marketability. This fact was found upon conflicting evidence, and in such a case the finding will not be disturbed by the appellate court. This rule was applied in a case where the finding of the referee was supported by the testimony of one witness only, and there were four witnesses to the contract (Wright v. Saunders, 65 Barb. 214). And so the rule is that “ witnesses are not counted but weighed.”
    It is sufficient for the defendant’s case that there are some who think the restrictions injurious to the property, for its marketability is thereby impaired. Those who so think will not give the full value, or the same price that they would if it was unrestricted. This, of itself, makes the testimony of the defendant’s witnesses conclusive on the question.
   Ingraham, J.

The court below found that the defendant had entered into a written contract with the plaintiff by which she agreed to purchase of the plaintiff the premises No. 19 Washington Square, North, in the city of New York for the price of $52,000. The said property was sold by a good title in fee simple, and was to be conveyed by a warranty deed free and clear of all incumbrances, except a certain mortgage. The defendant refused to accept the title to the premises on the ground, among others, that the premises in question were subject to a restriction hereafter referred to.

The court further found that in the year 1827, an agreement was made between the owners of all the lots fronting on the said street between Fifth Avenue and McDougal Street, by which they mutually covenanted and agreed to and with each other that they would not at any time thereafter erect, or build, or cause or permit, or suffer, to be erected or built, any house, wall, fence, or other building, the front or other wall whereof shall approach nearer to said street than twelve feet in any part of said lots so that a space or area of twelve feet in depth and the entire breadth of each of the said lots in front of the buildings, and between them and the said street, shall be forever left open for court yards, and that plaintiff’s title to said lot of land and house is subject to an incumbrance and restriction created by the said covenant and agreement, which still continues in full force and effect.

The court further found that the restriction and incumbrance created by the said covenant and agreement, were a damage to said lot of land, an injury to its salability and marketability, and that the defendant at the time of and prior to the sale had no notice of such restriction and incumbrances.

We have examined the testimony taken at the trial and are satisfied that the findings are sustained by the evidence.

That this covenant imposed a restriction in perpetuity upon the plaintiff’s lot cannot be disputed (Trustees v. Lynch, 70 N. Y. 440).

The defendant was entitled by the contract to a good title to the premises purchased in fee simple, free and clear of all incumbrances except the mortgage mentioned, and plaintiff seeks to compel her to take the premises from twelve feet of which she is restricted from building.

The parties have made their contract. The defendant purchased the plot of ground free of incumbrances, that is, free to be used in a.ny way that she desired, and I do not see how it can be said to be a compliance with that contract to give her a piece of land a considerable portion of which she cannot use. It is no answer to say that the incumbrance or restriction would make some people give more for the land because there was also a restriction on. other property in the neighborhood. The answer to that proposition is, that the land with such a restriction was not the land that defendant had agreed to purchase, and plaintiff is not entitled to a specific performance of the contract where the vendor has failed to show that he has a marketable title, or where other grounds appear which in equity and good conscience require that the contract should not be specifically performed (Peters v. Delaplaine, 49 N. Y. 362).

The case of Riggs v. Pursell (66 N. Y. 199), is cited as an authority for the proposition that such a restriction is not an incumbrance upon the property. In that case however, the defendant became the purchaser at a judicial sale. It was a lease only of the premises that was purchased, and the decision seems to be based upon the ground that the purchaser claiming to be discharged from his contract under a judicial sale, should make out a fair and plain case for relief. If he gets what he bargained for he must complete the purchase and take his deed, and in some cases the court will compel him to take a compensation for any deficiency. We know of no instance in which that rule has been applied to the purchase of the fee at private sale, where the vendor agrees to give a good title in fee simple free of all incumbrances ; and when Riggs v. Pursell was before the court of appeals on the second appeal, it was held on the facts then presented, that the restriction was a material defect in the title.

In this case the court has found as a fact that the restriction was a damage to the land, and if the rule laid down in Riggs v. Pursell should be taken to apply to the sale of the property in fee, this restriction having caused the deterioration in the value of the property, would be an incumbrance.

We think therefore that plaintiff failed to tender a deed conveying the property agreed to be sold free of incumbrances, and that the court below was right in refusing to decree a specific performance.

We are also of the opinion that upon tire points presented no error was committed in giving judgment against the plaintiff for the $5,200 deposited with the auctioneer by the defendant on her purchase and for the expenses incurred in the examination of the title.

It is well settled that where the vendor has failed to complete his contract the defendant is entitled to recover the amount paid on the contract and the expenses incurred in the examination of the title to the property, and the payment to the auctioneer was a payment for the benefit of the plaintiff under the terms of the sale.

Judgment should be affirmed with costs.

Sedgwick, Ch. J.—I concur with Judge Ingraham, on the ground that the contract is conclusive as to the defendant’s right to have a title free from incumbrance of every kind and quality, and also with his view as to the counter-claim.

Freedman, J.—I concur on the same ground.


author: By the Court.—Ingraham, J.

text:
    CHARLES HEYMAN, et al., Appellants, v. THE PHILADELPHIA & READING R. R. COMPANY, Respondent.

      Common carrier—Live stock, responsibility for injuries to.

    In the case of the transportation of live stock, the shipper, to recover from the carrier for an injury thereto, must adduce evidence to show that the injury happened through want of suitable means of transportation, or of the exercise of the degree of care which the nature of the property required, or some neglect or omission of duty on the part of the carrier.
    In the case at bar, the only evidence being that a slat of the car in which plaintiffs’ horse was carried (which car was in good order and suitable for the purpose when loaded), became broken on the trip, which was repaired, and at the end of the trip was again found broken and the horse injured, one of his fore legs being broken, and that the car was allowed to stand for one or two hours after it was loaded, there being no evidence to show that the injury was caused either by the broken slat or the standing of the car, or that any act of defendant’s could have prevented the accident.

      Held, that the complaint was properly dismissed.
    Before Sedgwick, Ch. J., and Ingraham, J.

      Decided December 30, 1886.
    Appeal from a judgment entered upon a verdict directed by the court in favor of the defendant.
    The defendant was sued for negligence committed in its capacity of a common carrier, the complaint alleging in substance that the plaintiffs shipped a horse over defendant’s road at Reading, Pennsylvania, which defendant agreed to carry and deliver safely to plaintiffs at Jersey City, New Jersey, and that by reason of the defendant’s negligence one of said horse’s fore legs became broken, for which plaintiffs claimed damages in the sum of $350.

      Further facts appear in the opinion.

      Cardozo & Newcombe, and Leonard Bronner, for appellants.
    I. The appellate court will consider whether on any construction of the facts the jury would have been warranted in finding for the plaintiffs, and if so the nonsuit was error (Minor v. Mayor &c., 5 J. & S. 171; Stone v. Flower, 47 N. Y. 566 ; Royce v. Watrous, 7 Daly 87). The facts warranted such a construction as would have enabled the jury to properly award a verdict against the defendant. The testimony clearly shows it was a question of fact whether or not the slat in the car was properly repaired. The want of suitable vehicles in which to transport articles is neglect on the part of the carrier (Sayer v. Portsmouth R. R. Co., 31 Me., 229 ; Great Western Ins. Co. v. Hawkins, 18 Mich. 427). The fact that the carrier has done what is usual is not sufficient to exempt him from the charge of negligence. He must show that he has done what is necessary under all circumstances (Wing v. N. Y. & Erie R. R. Co., 1 Hilton 235 ; Reed v. Phil., Wilmington & Baltimore R. R. Co., 3 Houston [Del.] 176 ; Truax v. Same, Ib. 233). The liability of a railroad company engaged as a common carrier of animals is not limited to the careful and safe conveyance of the car containing them, and in the absence of a special agreement, the company is liable for any injury which can be prevented by foresight, vigilance and care arising from the conduct of the animals (Clark v. Rochester & Syracuse R. R. Co., 14 N. Y. 573 ; Mynard v. Syracuse & Binghampton R. R. Co., 71 Ib. 181). Whenever a railroad company receives cattle or live stock, such company assumes all the responsibility of a common carrier for a transportation, unless modified by a special contract (See cases above cited). It is the duty of a railroad company which undertakes to carry five animals for hire, to provide cars of sufficient strength to prevent the animals from breaking through the same, and they are responsible for a loss through their failure to do so, although the animals Avere unruly and vicious (Merritt v. Farley, 29 N. Y. 115; Smith v. New Haven & Northampton R. R. Co., 12 Allen [Mass.] 531; Mynard v. Syracuse & B. R. R. Co., supra). When the car arrived at Jersey City the identical slat which had been previously broken was found broken anew. No other slat was broken, and this circumstance raised a question of fact Avhether or not the defendant, when it repaired.the slat at Eeading, did it in so safe and secure a manner as to prevent the accident, especially in view of the testimony as to the manner in which the slat Avas repaired, and whether the railroad company had fulfilled the duty of providing sufficiently strong and secure cars (Clark v. Rochester & Syracuse R. R. Co., supra). Even where the injury was not the direct result of the defendant’s act solely, but the proximate cause was contributed to by the acts of the defendant, the defendant is liable (Macauley v. Mayor, 67 N. Y. 602 ; Payne v. Troy R. R. Co., 83 Ib. 572 ; Wolf v. Am. Ex. Co., 43 Mo. 421; Fero v. Buffalo & State Line R. R. Co., 22 N. Y. 209 [78 Am. Dec. 178]). Where a carrier receives a cask of wine, in good order, the burden is upon him of showing that a loss of its contents was occasioned by causes for which he is not responsible (Arend v. Liverpool Steamship Co., 6 Lans. 157; affi’d, 53 N. Y. 606).
    II. As there was evidence from which a jury might find in favor of the plaintiff, it is insisted that the case should not have been withdrawn from their consideration. It does not follow that because there is no contradictory testimony the court must take the question from the jury and determine it as one of law; on the contrary, if different results would be reached by different minds, the question must go to the jury (Wait v. Ins. Co., 13 Hun 371; Nicholson v. Connor, 8 Daly 212 ; 84 N. Y. 5). In an action to recover damages for alleged negligence, plaintiff is entitled to have the issue of negligence submitted to the jury when it depends upon conflicting evidence, or an inference to be drawn from circumstances in regard to which there is room for a difference of opinion among intelligent men (Payne v. Troy R. R. Co., 83 N. Y. 572 ; Hays v. Miller, 70 Ib. 112; Fitzpatrick v. N. Y. Cen. & Hud. R. R. R. Co., 21 Week. Dig. 169; 98 N. Y. 649). It was shown that when the cars are at rest cattle are uneasy, move about, hook and crowd each other, are disposed to lie down (if possible), and are thus liable to be trampled upon or otherwise injured more than when the cars are in motion ; and hence, if we eliminate from the case the question of fact whether the evidence as to the defective slat or the improper manner in which it was repaired established negligence, still there remained the question of fact whether the horses were improperly or unnecessarily detained at Reading, and if so, whether the injurious detention was the cause of, or resulted in, the damages complained of (Harris v. Northern R. R. Co., 20 N. Y. 232 ; Macauley v. Mayor, 67 Ib. 602; Merritt v. Earle, 29 Ib. 115).

      R. W. De Forest, attorney, and F. L. Hall, of counsel for respondent:
    I. This action cannot be sustained without proof that defendant was negligent (Losee v. Buchanan, 51 N. Y. 476 ; McPadden v. N. Y. Central R. R. Co., 44 Ib. 478).
    II. To warrant the submission of the case to a jury there must be, not a mere scintilla of evidence, but such that a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed (Commissioners, &c. v. Clark, 94 U. S. 284; Pleasant v. Fant, 22 Wall. [U. S.] 120 ; Baulec, Adm’r v. N. Y. & Harlem R. R. Co., 59 N. Y. 356). Where, upon the whole evidence, a verdict in favor of the plaintiff would have been set aside, as against evidence, it is the duty of the court to nonsuit (Nuendorf v. World Mutual Life Ins. Co., 69 N. Y. 389). The question should be, not whether the inferences can be differently drawn by different minds, but whether they can logically be drawn from the facts proved, in any other way than one way; and to say whether they can logically be drawn in any other than one way is the province of the court guided by its legal training (Smith Ex. v. N. Y. C. & H. R. R. Co., 19 Week. Dig. 230). The judge has to say whether any facts have been established by evidence from which negligence may be reasonably inferred, the jurors have to say whether from those facts when submitted negligence ought to be inferred (Metropolitan Ry. Co. v. Jackson, L. R. 3 App. Cases 197).
    III. A judge will not be justified in leaving the case to the jury when the plaintiff’s evidence is equally consistent with the absence as with the existence of negligence in the defendant (Baulec Adm’r v. N. Y. & Harlem R. R. Co., supra ; Improvement Co. v. Munson, 14 Wall. [U. S.] 442 ; Parks v. Ross, 11 How. [U. S.] 373 ; Muller, Adm’x v. Second Ave. R. R. Co., 48 Super. Ct. 546 ; Claflin v. Meyer, 75 N. Y. 260).
    IV. The burden of maintaining the affirmative of the issue is upon the party alleging the fact which constitutes the issue (Lamb v. Camden & Amboy R. R. Co., 45 N. Y. 271; Heinemann v. Heard, 62 Ib. 455).
    V. A carrier of animals is not responsible for injuries to them caused by their fright, restiveness, or viciousness, no negligence on his part being shown (Evans v. Fitchburg R. R. Co., 111 Mass. 142 ; Indianapolis, &c. R. R. Co. v. Jurey, 8 Ill. App. 160 ; Cragin v. N. Y. C. R. R. Co., 51 N. Y. 16).
    VI. It may be claimed on behalf of the plaintiff that the evidence presented by himself and his witnesses, that the horses were quiet in the stable before shipping and did not seem unruly or vicious when taken from the car at destination, is sufficiently contradictory of defendant’s testimony to present a question of fact for the jury. This position, however, is not tenable for the reasons : 1st. .That such evidence is merely negative and fails before the direct and positive evidence to the contrary after plaintiff had placed them in the cars; and 2d. That, even if it were admitted that the horses in question were ordinarily quiet, the fact of the breaking of the car slat, and the consequent injury to one of their number, is more consistent with the theory of the unusual unruliness and kicking of the horses than of any negligent act of the defendant (See cases cited above).
   By the Court.—Ingraham, J.

The rule in relation to the liability of a common carrier in the transportation of live stock, is stated by Earle, Commissioner, in Cragin v. N. Y. Central R. R. Co. (51 N. Y. 63): “In the transportation of such stock, in the absence of negligence, the carrier is relieved from the responsibility for such injury as occurs in consequence of the vitality of the freight. He does not absolutely warrant live freight against the consequences of its own vitality. Animals may injure or destroy themselves or each other ; they may die from fright or from starvation because they refused to eat, or they may die from heat or cold. In all such cases the carrier is relieved from responsibility, if he can show that he has provided all suitable means of transportation, and exercised that degree of care which the nature of the property requires.”

It is not sufficient therefore, to make the defendant liable, to show that the horse was injured. It is necessary that the jury can find from the evidence that there was some neglect or omission of duty upon the part of the defendant.

In this case the uncontradicted evidence showed that the car in which the horse was shipped was in good order and suitable for the purpose when the car was loaded; that during the passage a slat in the car became broken, but there was no evidence to show that such break was occasioned by any negligence of the defendant ; on the contrary it appeared that one of the horses in the car was Id 'king violently. That break was repaired as the witness stated in a proper manner, and at the end of the trip the slat was again found to be broken and the horse injured. There is no evidence to show that the broken. slat caused the injury, or that any act of the defendant could have prevented the accident.

The injury being one that occurred in consequence of the vitality of the freight,” to sustain the cause of action the burden of proof was upon the plaintiffs to show facts from which the jury would be justified in finding that there was an omission of duty upon the part of the defendant.

The fact that the car was allowed to stand for one or two hours after it was loaded is not of itself evidence of negligence. It did not appear that the fact that the car was allowed to stand caused the injury; nor was there any evidence to show that the car could have been moved sooner than it was.

We are of the opinion that the verdict was properly directed for the defendant, and the judgment should be affirmed with costs.

Sedgwick, Ch. J., concurred.


author:
Ingraham, J.
      By the Court.—Sedgwick, Ch. J., and Freedman, J.

text:
    EDWARD A. KLEIN, Respondent, v. THE SECOND AVENUE R. R. CO., Appellant.

      Personal injuries—Damages for loss of earnings or receipts, when not recoverable—Refusal to charge in terms as requested error, when with charge as made it authorizes inference that damages may be awarded on erroneous basis—•When such error cause for reversal—Experts, testimony of, jury not bound to accept.

    In. an action for personal injuries, damages for loss of earnings or receipts are not recoverable, without some evidence as to the loss and its extent.
    In the ease at bar, the court charged that there was no evidence from which, the jury could find any loss, and refused to charge that no damages could be allowed from the mere fact that plaintiff had been engaged in business and had since the accident been unable to carry it on,

      Held, 1st. That the jury would from the charge and refusal be authorized to infer that although there was no evidence from which they could find any loss, yet they could give damages therefor, and therefore the refusal to charge as requested was error.
    2d. That as the appellant could not say but that such error influenced the jury in the amount of their verdict, it was a material one which called for a reversal.
    ■ Also held, that the jury are not bound to accept as true the testimony of any expert witness, even if he testifies that an alleged result has followed with reasonable certainty from the accident. Per Sedgwick, Ch. J., and Frebdmar, J.
    Before Sedgwick, Ch. J., Freedman, and Ingraham, JJ.

      Decided December 30, 1886.
    Appeal from judgment entered in favor of plaintiff on verdict of the jury, and from order denying motion for a new trial.
    This action was brought to recover damages caused by plaintiff falling from one of defendant’s cars.
    In addition to the request to charge and refusal, mentioned in the opinion of Judge Ingraham, defendant’s counsel requested the trial judge to charge as requested, “ that the jury are not bound to accept as true the testimony of any expert witness, even if he testifies that an alleged result has followed with reasonable certainty from the accident,” which was refused except as charged, to which refusal defendant’s counsel excepted.

      Hutchins & Platt, attorneys, and Austen G. Fox, of counsel for appellant, on the questions considered by the court in the opinion, argued:
    I. The court erred in refusing to charge that there was no evidence from which the jury could find any loss of earnings or receipts, and that no damages could be allowed by the

      jury from the mere fact that the plaintiff was engaged in the business of importing wines for a number of years, and has since been unable to carry it on (Leeds v. Metropolitan Gas Light Co., 90 N. Y. 26).
    II. The court erred in refusing to charge that the jury are not bound to accept as true the testimony of an expert witness, even if he testifies that an alleged result has followed with reasonable certainty from the accident (Head v. Hargrave, 105 U. S. 45 ; Anthony v. Stinson, 4 Kans. 211).

      Zimmerman & Jacobs, attorneys, and Frederick A. Ward, of counsel for respondent, on the questions considered by the court in the opinion, argued :
    Plaintiff had stated that he had been unable to do any business since the accident, and defendant itself proved that he was compelled to take lodgers for his livelihood. To claim that he could not recover damages for injuries so immediate and so calamitous is absurd, and the claim comes with especial ill grace from defendant, who had persistently objected to all proof of loss of business in connection with the accident. The charge on this point too, was more favorable to defendant than it deserved. The plaintiff had succeeded in placing before the jury the fact that the plaintiff had been in the wholesale wine business for nineteen years, that his business had been sold out, and that he had not been able to do any business since the accident. This was relevant only on the question of damages, and the court should have instructed the jury that no pecuniary damages had been proven. ■ Especially is this true, after the court, of its own motion, had laid all these facts pointedly before the jury.
   Ingraham, J.

The plaintiff on the trial testified that he was in the wholesale wine business for 19 years in Germany and New York. There was no evidence of the value of the business, or value of his time, or the amount of profits that he had made in his business. Nor was there evidence of any fact from which such value or the amount of such profits could be ascertained.

The court charged the jury as follows : The amount of damage it is for you to consider. Plaintiff was a man of business. How much his business was worth you have no means of judging. He was in the wine business I think, selling German and other wines and for four years has, as he says, been unable to attend to any business, and it is for you to consider whether his statements are substantiated by his appearance on the stand.”

The defendant then requested the court to charge, That there is no evidence in the case from which the jury can find any loss of earnings or receipts from the business suffered by the plaintiff.” The court in response to that request said, “ There is no evidence on that subject. I think I told you all that is before you on that subject.” Defendant’s counsel excepted.

Defendant’s counsel then requested the court to charge: No damage can be allowed by the jury from the mere fact that the plaintiff was engaged in the business, which he said he was in, of importing wines for a number of years and has since been unable to carry it on.” To this request the court responded, “ I will not charge that, gentlemen. There is no means of your arriving at any estimate of what his loss from year to year has been.” Defendant’s counsel excepted.

We are of the opinion that the defendant was entitled to have the court charge as requested. Leeds v. The Metropolitan Gas Light Co. (90 N. Y. 29), was an action to recover for a personal injury. It was proved in that case that plaintiff was engaged in business at the time of the injury but had not been able to attend to his business since. The court charged that he was entitled to receive compensation for the time lost in consequence of the confinement to his room or his disability to labor caused by the injury sustained. This was held to be error. The court of appeals said, “ The rule of recovery is compensation. Where the loss is pecuniary and is present and actual, and can be measured, but no evidence is given showing its extent or from which it can be inferred, the jury can allow nominal damages only. . . .For pain and suffering or injury to the feelings, there can be no measure of compensation save the arbitrary judgment of the jury. But that is a rule of necessity. Where actual pecuniary damages are sought, some evidence must be given showing their existence and extent. If that is not done the jury cannot indulge in an arbitrary estimate of their own.”

There was no evidence in this case showing the existence or extent of any damage done to plaintiff’s business, and the jury was not authorized to guess or speculate as to the amount of damages sustained.

The court having charged that there was no evidence from which the jury could find any loss, and having refused to charge that no damage could be allowed from the mere fact that plaintiff was engaged in business and has since the accident been unable to carry it on, the jury would be authorized to infer that although there was no evidence from which they could find any loss, yet they could give damages therefor.

This request to charge was in accordance with the rule as laid down in Leeds v. The Metropolitan Gas Light Co. (supra). The verdict was a large one, and although the injury sustained was very serious, we cannot say but that such refusal to charge influenced the jury in the amount of their verdict.

The other serious questions presented are not considered by me ; one of them however, is considered and decided by my associates. On a new trial the facts proved may be different and the questions that now appear on the record may not be presented.

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

By the Court.—Sedgwick, Ch. J., and Freedman, J.

We agree with Judge Ingraham, and are of the further opinion that it was erroneous to refuse to charge as requested, “ that the jury are not hound to accept as true the testimony of any expert witness, even if he testified that an alleged result has followed with reasonable certainty from the accident.” to contradict the record by proving a name different from that which is contained in the record. There are exceptions to this rule, as in Berber v. Ketzinger (23. Ills. 346), where the defendant had changed her name after the recovery of the judgment; or as in Stevalie v. Reed (2 Wash. Circt. Ct. Rep. 274), where the defendant had appeared under a wrong name in the original judgment and had joined issue, and where the complaint founded upon the foreign judgment alleged that fact.


author: Per Curiam.

text:
    C. A. MAX WIEHLE, Appellant, v. ANTON SCHWARZ, Respondent.

      Parties—Use of initial letter of Christian name.

    Plaintiff recovered judgment, by default of appearance, in a court of general common law jurisdiction in Pennsylvania, against “ A Schwartz,” the record therein not showing that the letter “A” was used as an abbreviation or that defendant’s name was unknown. In an action in this state upon said judgment, brought against “Anton Schwartz,” the complaint not alleging that the defendant here was known by the name of A. Schwartz, or that he was the person who signed the notes upon which the judgment in the Pennsylvania suit was founded, and there being no evidence of the law of that state on the subject,

      Held, that the common law applied, and that the complaint was properly dismissed.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided December 30, 1886.
    Appeal from a judgment dismissing the complaint, entered upon findings made upon a trial by the court without a jury.
    Action upon, a judgment.
    The facts appear in the following opinion delivered by the court below:
    “ Ingraham, J.—The plaintiff in this action recovered in the court of common pleas, in the city of Philadelphia, a court of general common law jurisdiction, a judgment against A. Schwarz for the sum of $2,677.52. It does not appear by the record of that case tha,t the letter “A,” by which the defendant was designated, was used as an abbreviation for the defendant, or that the defendant’s name was unknown.
    “ The action was upon two promissory notes signed A Schwarz, and was against A. Schwarz. The process in that action was served upon the defendant in this action, and judgment was entered by reason of his failure to appear and file the necessary affidavit of defense.
    “ The defendant in this action, Anton Schwarz, is sued on that judgment. It is not alleged in the complaint in filiis action that the defendant, Anton Schwarz, was known by the name of A. Schwarz, or that he was the person who signed the promissory notes upon which the action in the court of common pleas for the county of Philadelphia was founded.
    “ On this record, as it stands, I do not think plaintiff is entitled to recover against Anton Schwarz on the judgment. There is no evidence as to the law of the state of Pennsylvania on the question here presented, and the rules of common law are therefore presumed to apply. It is well settled in this state that an action against an individual by a wrong name does not give the court jurisdiction to enter any judgment against the person intended to be sued.
    “In Farnham v. Hildreth (32 Barb. 278), it was held a judgment entered against Freeman Hildreth did not authorize a sale of the property of Truman Hildreth, although he might have been the individual intended, and also held that the service of a summons upon a party by a wrong name does not give the court jurisdiction over his person, and his appearance cannot be compelled.
    “ Anton Schwarz did not appear in the action in the court of common pleas of the county of Philadelphia, and I think it clear on the authorities that the service of that writ against A. Schwarz gave the court no jurisdiction to enter a judgment against Anton Schwarz, and consequently the entry of the judgment against A. Schwarz was not a judgment against Anton Schwarz.
    “In the case of Grant v. Birdsall (48 Super. Ct, 428), cited by the plaintiff, it appeared that, in proceedings supplementary to execution, defendant had obtained and signed adjournments, and had promised at one of the adjournments to pay the judgment, and the court held that the objection had been waived. There is nothing in the case at bar from which a waiver of the objection could be founded.
    “ I have examined all the cases cited, and am clearly of the opinion that the judgment of the court of common pleas, of Philadelphia, against A. Schwarz, is not a judgment against Anton Schwarz, and the plaintiff is not entitled to recover.
    “The complaint must therefore be dismissed with costs. Findings to be settled on two days’ notice.”

      Blair, Snow & Rudd, and B. F. Blair, for appellant.
    I. It appears'most conclusively, not only by the record, but also by the findings, that the letter A was used as an abbreviation. The name of the defendant in the Pennsylvania suit is mentioned repeatedly both in the record of that suit and in the findings here, and in not a single instance is the letter A used as a part of the defendant’s name without being followed by a period.
    A single letter, when used as part of a name, if followed by a period, is used as an initial of a name, and not as, in itself, a name.
    II. The defendant was not sued “by a wrong name,” in the action in Philadelphia, but merely by an abbreviation of his true name.

      Prima facie, personal service of the process of a court of general jurisdiction upon a party gives that court jurisdiction of the person served, therefore it is for defendant to show why personal service oí process upon a defendant so designated does not confer upon the court jurisdiction to render judgment against him. (Counsel here commented on and distinguished authorities cited in respondent’s points.)
    Thus it appears that not one of the cases cited by the defendant supports the proposition that a valid, judgment may not be rendered by default against a defendant sued by the initial of his Christian name, unless it is to be held, as a matter of law, that the initial is really another and a wrong name for' the defendant—a view which no case we have been able to find supports.
    HI. That a valid judgment by default may be entered against a defendant sued by the initials of his Christian name, see Grant v. Birdsall, 2 Civ. Pro. Rep. 422; Lynch v. Tomlinson, N. Y. Daily Reg. Oct. 30; Sarony v. The Burrow Giles Lithographic Co. 16 Rep. 80; Bell v. Sun Printing, etc. Co. 42 Super. Ct. 567; Lucas v. Farrington, 21 Ills. 31; Fenton v. Perkins, 3 Mo. 106 ; Weaver v. McElhenon, 13 Ib. 89 ; State v. Burtis, 34 Ib. 92; Ferguson v. Smith & Dunham, 10 Kans. 394; Martin v. Barron, 37 Ib. 30; Jones’s Estate, 27 Penn. 336; Weber v. Davis, 5 Allen, 393.

      Wehle & Jordan and Henry Wehle, for respondent.
    I. A summons not addressed to a person, but served upon him, does not authorize his appearance in court (Gannon v. Myers, Daily Reg. Nov. 19, 1886).
    II. A single letter, if a vowel, can form a name by itself (Garish, v. Alabama, 53 Ala. 576; 18 Alb. L. J. 505). Even if “A.” in A. Schwarz should stand merely as an initial, the defendant was not bound to assume that it-stood for his initial. The law assumes that every person has a Christian name and a surname, and requires that every person, whose name is known, must be proceeded against by that name. It was the absolute right of the defendant, when served with a summons of the court of common pleas, to disregard the same (Gardner
      v. Kraft, 52 How. 99; Farnham v. Hildreth, 32 Barb. 277; Patrick v. Solinger, 9 Daly, 149; McCabe v. Doe, 2 E. D. S. 64; Davenport v. Doady, 3 Abb. Pr. 409; Frank v. Levie, 5 Rob. 599; Van Vorhis v. Budd, 39 Barb. 479; Finch v. Cocken, 3 D. P. C. 678; Miller v. Foley, 28 Barb. 630).
    in. There is no intimation upon the record, or otherwise, that any one but A. Schwarz was intended to be sued. There is no evidence offered to show that A. Schwarz, who made the promissory notes upon which the judgment was recovered in Philadelphia, has a name different from A. Schwarz, or that he is identical with the defendant. There is no intimation upon the record that “A” was intended as an initial, and hence this court must assume conclusively that “A” was intended as a name. It must be assumed that the common law governs the course of procedure in Pennsylvania, and the case of Kinnersley v. Nott (7 Dowling & Loundes, 128) illustrates to what extent the common law adheres to the rule above quoted. Even if “A” is intended as an initial, it stands no more for Anton than it stands for Arthur or any other name commencing with “A.”
    IV. It is the policy of the law that a person served with process should be aware that the process is intended for him, hence a designation of his name is required, and, even under the liberal course of procedure prescribed by our Code, where the name of the person to be served with process is unknown, it is necessary to add “a description tending to identify him” (Code, § 51; Weil v. Martin, 1 Civ. Pro. R. 133; Pindar v. Black, 4 How. 95). Where the defendant is not thus named or identified, he is not bound to take cognizance of the process (Gardner v. Craft, 52 How. 499; Muldoon v. Pierz, ] Abb. N. C. 309; Horback v. Knox, 6 Penn. St. 377).
    V. Proof of identityvwas not offered, and would have been inadmissible had it been offered. In actions on judgment against natural persons it is not permissible
   Per Curiam.

The judgment should be affirmed with costs on the opinion of the learned judge below.


text:
    STEPHEN V. HARKNESS, Plaintiff, v. THE MANHATTAN RAILWAY COMPANY, Defendant.

      Stockholders—As to rights of action of, upon agreement between corporations.

    The New York Elevated Railroad Company and the Manhattan Railway Company entered into ah agreement dated May 20, 1879, whereby the former leased to the latter its railways and other property, rights and franchises, and the latter, among other things, guaranteed to the former an annual dividend of ten per cent, on its capital stock of six millions five hundred thousand dollars, agreeing to pay to the former, in equal quarter-yearly payments of one hundred and sixty-two thousand five hundred dollars each on the first days of January, April, July and October in each year during the demised term. The plaintiff, holding stock of the New York Company, on the certificates for which the Manhattan Company had caused to be printed the subátance of its above agreement, brought, on behalf of himself and all other stockholders, an action against that company, demanding judgment that it pay to the New York Company dividends at the rate of ten per cent, per annum that would accrue since April, 1881, and pay to him the dividends due on his stock.

      'Held, 1st, that the agreement did not give plaintiff or the stockholders of the New York Company a cause of action against the Manhattan Company to recover the amount to be paid to the New York Company, or any part thereof; 2d, that the only relief to which the plaintiff would, under any circumstances, be entitled, would be to have the obligation of the Manhattan Company to the New York Company enforced; but before such relief could be granted, it must appear that such an obligation was in force when the action was commenced.
    In October, 1881, an agreement was made between the two above named companies and the Metropolitan Company by which the above agreement of 1879 was modified so that the sum to be paid by the Manhattan to the New York Company was reduced to six instead of ten per cent, on its capital stock. This agreement was, on January 10, 1882, properly ratified by a majority of the stockholders of the New York Company. Subsequently, at the meeting of the stockholders of the New York Company, held about May, 1884, two agreements between the New York Company and the Manhattan Company—one surrendering the lease of 1879, and the other a re-conveyance of the leasehold premises by the Manhattan Company to the New York Company—were submitted and properly ratified by a majority of the stockholders of the New York Company. Shortly after, the Manhattan Company delivered possession of the leasehold property to the New York Company, which took exclusive possession thereof. The Manhattan Company paid to the New York Company the amount called for by the October agreement down to May, 1884.

      Held that, as the agreement of 1879 was abrogated and not in force at the commencement of this action, plaintiff was not entitled to have the obligation of the Manhattan Company to the New York Company therein contained enforced.
    There was no evidence from which it could be held that, in ratifying the agreements of October, 1881, and May, 1884, the majority of the stock holders were trampling on the rights of the minority and acting in fraud of them, or that their acts were not in good faith, or that their acts or the agreements showed such fraudulent mismanagement of the corporate property and franchises as would justify a court of equity in interfering.

      Held that, on the whole case, defendant was entitled to judgment.
    At Special Term, before Ingraham, J.

      Decided October 7, 1886.

      E. B. Cowles and William H. Arnoux, for plaintiff.

      A. J. Vanderpoel, Julien T. Davies and Charles A. Gardner, for defendant.
   Ingraham, J.

This action is brought by plaintiff as a stockholder of the New York Elevated Railroad Company, on behalf of himself and all other stockholders who may join with him in this action, to enforce an agreement or lease dated the 20th day of May, 1879, whereby the New York Elevated Railroad Company leased its railways and other property, rights and franchises of every description, to the defendant, the Manhattan Railway Company. By that lease the Manhattan Company agreed to pay to the New York Company a certain sum of money as rent, to pay the principal and interest of certain bonds of the .New York Company; and further agreed as follows:

Article II. The Manhattan Company guarantees to the New York Company an annual dividend of ten per cent, on the capital stock of the New York Company to the amount of six millions five hundred thousand dollars ; that is to say, the Manhattan Company will, each and every year during the term hereby granted, beginning with the first day of October, 1879, pay to the .New York Company six hundred and fifty thousand dollars, free of all taxes, in equal quarter-yearly payments of one hundred and sixty-two thousand five hundred dollars each on the first days of January, April, July and October in each year, the first of said payments to be made on the first day of January, 1880. The Manhattan Company will, from time to time, execute in proper form a guarantee to the above effect, printed or engraved upon the certificate of stock of the New York Company.”

In pursuance of this agreement, the defendant, the Manhattan Co., caused to be printed or engraved on the certificate of plaintiff’s stock as follows: “ The Manhattan Railway Co., for value received, has agreed to pay to the New York Elevated Railroad Co. an amount equal to ten per cent, per annum on the capital stock of the whole company—that is, on six and a half million dollars, payable quarterly, commencing January 1, 1880.”

The complaint demands judgment that the Manhattan Co. pay to the New York Co. dividends at the rate of ten per cent, per annum that would accrue since April, 1881; that the defendant pay to plaintiff the dividends due him upon his stock; that the defendant be restrained from doing anything prejudicial to the rights of the plaintiff; and that plaintiff have such other relief as may be just.

It is very clear that this agreement gives a stockholder no cause of action against the Manhattan Company to recover the amount to be paid to the New York Company. The agreement is to pay a certain sum of money to the corporation, the New York Company. This sum is fixed as ten per cent, of the outstanding stock of the New York Company. Nothing was to be paid to the individual stockholders, nor did the Manhattan Company in any way agree that the stockholders of the New York Company should receive the money it agreed to pay to the New York Company, or that such money should be used for the purpose of a dividend on the stock of the New York Company.

The case of Wheat v. Rice (97 N. Y. 296) appears to be conclusive on this point. In that case the plaintiff agreed “ to assume and pay one quarter of the indebtedness” of the copartnership. The court held that no promise was made to pay any single one of the creditors, or for the benefit of any one of them, and that a creditor of the copartnership could not maintain an action under the agreement against the plaintiff. That case is much stronger than the case at bar, as there was in that case an agreement to pay the indebtedness, while in this case there is no agreement to pay any obligation of the New York Company, to the plaintiff or to its stockholders; it is simply an agreement to pay the corporation.

A payment to the New York Company of the quarterly payment would have released the Manhattan Company from its obligation under the lease, and the money paid would become the property of the corporation, liable for its debts, and the stockholders would have no claim to it until, by some act of the corporation, it had been appropriated to them. There was no agreement of the New York Company that the money to be received should be paid to its stoclcholders, and there was, therefore, no obligation on the part of the New York Coni’ pany to its stockholders which the Manhattan Company undertook to discharge.

The principle involved is entirely different from the case Lawrence v. Fox (20 N. Y. 268) and cases of like character. This is in accordance with the. opinion of the Chief Judge of this court, when this action was before him, and of Mr. Justice Cullen in the Beveridge case.

The only relief to which the plaintiff would, under any circumstances, be entitled, would be to have the obligation of the Manhattan Company to the New York Company enforced; but before such relief could be granted, it must appear that such an obligation was in force when the action was commenced.

In October, 1881, an agreement was made between the New York Company, the Metropolitan Company and the Manhattan Company, by which the lease of 1879 was modified so that the sum to be paid by the Manhattan Company to the New York Company was six per cent, upon its capital stock instead of ten per cent., and in other important particulars. This agreement was ratified by the stockholders of the New York Company on January 10, 1882, twenty-six. thousand six hundred and forty-one shares of stock being represented and voting at this meeting, and twenty-five thousand nine hundred and four shares of stock voted in favor of ratifying the new agreement, and seven hundred and thirty-seven shares voted against such ratification.

That this agreement of October, 1881, was binding upon the New York Company after it was ratified by the vote of the stockholders is clear. The directors of both the Manhattan and New York Companies being substantially the same, the agreement would, under the decision of Mr. Justice Van Brunt, in the case of The Metropolitan Railway Company v. The Manhattan Railway Company, hereafter referred to, have been voidable at the election of either of the corporations, but, when ratified by the majority of the stockholders, it became binding.

There is no evidence to show that the vote of the stockholders ratifying the October, 1881, agreement was induced by any fraudulent act or representation of the directors, and the large majority by which the agreement was ratified shows that the stockholders of that company were practically unanimous in ratifying the agreement as being for the best interests of the company.

The Manhattan Company paid to the New York Company the amount called for by the October agreement down to May, 1884. It appears that subsequently the Metropolitan Company repudiated that agreement, and in an action in which the Metropolitan Company was plaintiff and the defendant in this action and others were defendants, a judgment was entered on May 27, 1884, declaring the agreement null and void as between the parties to that action or any of them, and the same was set aside and annulled as to the defendant to this action, on the ground that the stockholders of the Metropolitan Company had not acquiesced in the agreement of October 21. Judge Van Brunt’s conclusion is: “ That the directors of the Metropolitan Company had no power to modify the lease of May, 1879, in the manner that they did by the October agreement, without the assent of the stockholders, and that if they had such power, the presence of the directors in the Metropolitan Board who were also directors in the Manhattan Company at the time of the execution of the October agreement, gave either company the right in equity to repudiate those contracts within a reasonable time, although the contracts may have been perfectly valid at law.”

• After the announcement of Judge Van Brunt’s decision, a meeting of the stockholders of the New York Company was called to take into consideration the relations between the elevated railway companies as affected by such decision, and adopt such measures as the stockholders may deem best for the interest of the company. Such meeting was accordingly held, and two agreements were presented to it, one of which was a surrender of the lease of 1879, and a re-conveyance of the leasehold premises from the Manhattan Company to the New York Company, and the agreements were approved and ratified by a vote of fifty-seven thousand eight hundred and thirty-six shares of stock in favor of, and five hundred and twenty shares of stock opposed, and leaving out of the majority all the stock voted on by the Manhattan Company, there was still a large majority in favor of the ratification of the agreement. «

Subsequently, about May, 1884, the Manhattan Company delivered the leasehold property to the New York Company, who took exclusive possession thereof, and retained such possession and control until about August 1, 1884, when a new agreement between the elevated railway companies was executed.

It is clear that this surrender of the lease and the acceptance of the demised property was valid. If the original lease of 1879 was valid, the parties to it could surrender it, and upon its surrender it became abrogated and all subsequent obligations under it voided. If this agreement to surrender the lease had been .made by the directors of the two companies without the consent or ratification of the stockholders of the company, it would, under the circumstances and under the rules as stated by Mr. Justice Van Brunt in the Metropolitan Company case before referred to, have been voidable at the option of the corporation. But here the corporation had never elected to avoid the agreement to surrender, but, on the contrary, had ratified and adopted it.

The case of Pearson v. The Concord Road, decided by the Supreme Court of New Hampshire, does not apply. It was there found as a fact that the two upper roads had bought a controlling interest in the Concord road for the purpose of making, with themselves as controlling managers of the Concord road, contracts more favorable to themselves, and they had accomplished that purpose, and the court held that no director or stockholder in the upper roads could act as a director of the Concord road in making agreements between the Concord road and the upper roads.

In the case at bar, the agreements of 1881 and May, 1884, were, as before stated, submitted to the stockholders of the road, and by them ratified, and, so far as appears, leaving out the shares owned by the Manhattan Company and by the directors of the Manhattan Company, there was a majority of the stockholders present and voting in favor of ratifying the agreements.

I am, therefore, clearly of the opinion that, after the surrender of the lease in May, 1884, there was no obligation or liability of the Manhattan Company to the New York Company.

I have not considered the question as to the validity of the resolutions passed by the New York Company in relation to dividends on the stock of the Manhattan Company at the time of the execution of the May agreement. It does not appear that such resolutions were ever carried into effect, and by the subsequent agreement between the parties it was abrogated. Nor is the validity of the agreement of August 1, 1884, involved in the determination of this action. The agreement of August 1, 1884, is not set forth in the complaint, and the question of its validity is not included in any issue presented by the pleadings. As the agreement or lease of 1879 is abrogated and not in force, I do not see how plaintiff can obtain any relief in this action. This is substantially the same conclusion as that reached by Mr. Justice Culler in the Beveridge case.

There is no evidence in this case that the New York Company had declared any dividend on the stock held by plaintiff, nor that plaintiff demanded a dividend at the rate of six per cent.; plaintiff is not, therefore, entitled to judgment for the dividends at six per cent.

The elaborate argument submitted by counsel for the plaintiff has been carefully considered, but it appears to me that the views hereinbefore expressed dispose of the action, and I consider further discussion unnecessary.

Assuming that the lease of 1879 is valid, neither of the agreements of October, 1881, or May, 1884, is beyond the corporate powers of the contracting parties, nor is there any evidence from Avhich it can be held that a majority of the stockholders are trampling upon the rights of the minority and acting in fraud of them. A person purchasing stock of a corporation thereby of necessity assents that a majority of‘the stockholders shall control the policy of the corporation; and so long as the acts of the majority are in good faith within the powers of the corporation, and are not prohibited by law, they are valid, and a dissenting stockholder has no right to ask a court of equity to compel the majority of the stockholders to accept his views of the management of the company. I can see nothing in either of the agreements mentioned, or in the acts of the stockholders in adopting and ratifying them, which would show such fraudulent mismanagement of the corporate property or franchise as would justify a court of equity in interfering.

On the whole case I think the defendant is entitled to judgment, with costs.