author: By the Court.— Horace Russell, J. “Spencer, J.

text:
    THOMAS A. DAVIES, Appellant, v. THE MAYOR, &c., of NEW YORK, Respondents.

      Municipal corporation—right of recorder to make orrenew lease for New York city. — Offer of judgment—how applied.—Estoppel.—Res adjudicata.

    The plaintiff sued the city to recover rent for certain premises for a period ending November 1, 1877, in which action the court of appeals held that the original letting to the recorder was with sufficient authority, and that the holding over, under the circumstances, made -the defendants tenants from year to year, until May, 1877. After that decision, in January, 1881, the defendants offered to “ allow judgment to be entered against them for the principal sum of $1,000, with interest on $500 thereof from the 1st day of February, 1877, and interest on $500 thereof from the 1st day of May, 1877,” besides the costs. The plaintiff accepted the offer, and then brought this action to recover the rent from May 1, 1877, to May 1, 1878. It appeared upon the trial that the board of aider-men, in December, 1876, adopted a resolution setting apart, forth e recorder, rooms in a building belonging to the city. There was no proof that this resolution was brought to the notice of the plaintiff. It appeared that the rooms designated were not ready for occupancy until the latter part of June, 1877, and that the recorder continued in possession of plaintiff’s rooms until July, 1877.

      Held (affirming judgment dismissing the complaint),
    1. That, without authority from the board of aldermen, or such acquiescence in his holding overas would amount to a ratification, not only was the recorder without authority to take a lease, but he was equally without authority to create an implied'renewal of a lease by holding over after the expiration of a term; and the resolution of the board of aldermen having been passed three months before the beginning of a current year, there was nothing from which the acquiescence of the municipal authorities to a renewal of the lease could be inferred.
    2. The offer of judgment in the former suit, being a general one to compromise the claim sued upon, and there being no evidence to show that the offer was for the two first named quarterly installments, it could not be considered as relating to a particular part of the claim on which the suit is brought; and the judgment entered upon the offer to compromise did not constitute an adjudication upon the rights of the parties, with reference to the subject-matter in litigation, so as to create thereafter an estoppel to a denial by the defendants of a tenancy after May 1, 1877.
    3. The claim for rent falling due August 1 and November 1, 1877, having been made a part of the plaintiff’s cause of action in the former suit, compromised by the offer, became merged in the judgment entered therein; so that the plaintiff’s action in this case, so far as that portion of his claim is concerned, is barred by that judgment.
    Before Sedgwick, Ch. J., Freedman and Russell, JJ.

      Decided April 3, 1882.
    Appeal from a judgment dismissing the complaint on a trial by the court, a jury trial having been waived.
    The facts appear in the opinion.

      Edmund Coffin, Jr., for appellant.

      William C. Whitney, corporation counsel, and David J. Dean, of counsel, for the respondents.
   By the Court.— Horace Russell, J.

This action was brought to recover from the city the sum of $2,000, for the rent of offices in the building 317 Broadway, from May 1, 1877, to May 1, 1878.

The claim for the first six months, that is, $500, for the quarters ending respectively August 1 and November 1, 1877, was included in the complaint in a former action between the parties. The history of the transaction and the law as relates to most of the questions involved, will be found in the opinion of Folger, Ch. J., in Davies v. Mayor (83 N. Y. 209), reversing a dismissal of the complaint affirmed at general term (13 J. & S. 373).

The decision of the court of appeals establishes that the original letting was with sufficient authority, and that the holding over, under the circumstances, made the defendants tenants from year to year, until May, 1877.

After that decision, and on January 22, 1881, the defendants offered “ to allow judgment to be entered against them for the principal sum of $1,000, with interest on $500 thereof from February 1, 1877, and interest on $500 thereof from May 1, 1877, besides the costs and disbursements accrued and incurred in this action to the date thereof.”

The plaintiff accepted the offer and entered his judgment accordingly, and then brought this action to recover the rent from May 1, 1877, to May 1, 1878, which includes two quarters embraced in the claim in the former suit. And the plaintiff’s counsel now claims that the former judgment conclusively determines his right to recover in this action.

There was proof on the trial below that the Board of Aldermen, on December 26, 1876, adopted a resolution, approved by the mayor on December 28, setting apart for the recorder rooms in a building belonging to the city, and directing that the Commissioners of Public Works be authorized and directed to give notice and make provision accordingly. There was no proof that this resolution was brought to the notice of the plaintiff. It appeared that the rooms designated in the resolution were not ready for occupancy until the latter part of June, 1877, and that the Recorder continued in the actual possession of the rooms belonging to the plaintiff until the middle of June, and that the keys of such rooms were retained until July.

If the question to be considered were not complicated by reason of the fact that the defendant is a municipal corporation, and that the holding over was by an officer not authorized to make or renew, on behalf of the city, a contract of lease, and if the defendant were a person, who himself held over, we should have no hesitation in reaching the conclusion that although he had contemplated in' December the abandonment of the premises and started to make other provision, the mere fact that he held over, authorized the landlord, at his own election, to treat him as a trespasser, or as a tenant, for another year (Schuyler v. Smith, 51 N. Y. 309). That the relation between the parties here until May 1, 1877, by reason of the holding-over, with the implied assent of the proper authority, was that of landlord and tenant, was determined by the court of appeals.

We are now to consider what effect, if any, the resolution of the Board of Aldermen, adopted in December, 1876, had upon the alleged continuance of the relation after May 1, 1877, and what effect, if any, should be given to the judgment entered upon the offer above stated.

While it is not directly, and in so many words, held in the decision of the court of appeals, that the acquiescence of the proper authorities in the holding-over by the recorder, was necessary to create such authority in him to hold over as would bind the defendants, and raise an implied renewal of the lease, inasmuch as that court put the plaintiff’s right to recover for the two quarters ending May 1, 1877, upon the ground of assumed assent, that, I think, is the fair inference to be drawn from that decision; and that, without authority from the Board of Aldermen, or such acquiescence in his holding-over as would amount to a ratification, not only was the recorder without authority to take a lease, but he was equally without authority to create an implied renewal of a lease by holding over after the expiration of a term.

In the former appeal, the implied renewal having taken place before the passage of the resolution by the Board of Aldermen, it was held that their action could not operate to terminate the lease, impliedly renewed by the holding-over, before the end of- a current year.

In this case, their resolution having been passed three months before the beginning of a current year, there certainly was nothing from which the acquiescence of the municipal authorities to a renewal of the lease, could be inferred.

If that be so, and we have correctly apprehended the opinion, it would seem to make an end of this case.

It is claimed that the resolution of December, 1876, shows a ratification of the continuance in possession by the recorder until the other offices should be fitted up for him, and notice given by the commissioner of public works. That resolution on its face does not bear such interpretation. It contemplates rather an immediate action toward the object resolved upon. It certainly cannot be construed into an implied acquiescence of a re-leasing of the plaintiff’s premises from the 1st of May thereafter for another year. The plaintiff was then bound at his peril to inquire upon what authority, to bind the defendants, the recorder continued in possession after May 1 (Macdonald v. Mayor, 68 N. Y. 23 ; Brady v. Mayor, 20 Id. 312; 2 Bosw. 183 ; Donovan v. Mayor, 33 N. Y. 291).

These cases hold that a party dealing with a person claiming to represent the corporation, is charged with notice of his lack of authority, and, as I have already said, the effect of the court of appeals decision is to hold that the recorder’s holding over could not bind the city unless upon a special authorization, or such acquiescence as amounted to an authorization.

I come now to the consideration of the effect of the judgment entered by the plaintiff upon the defendants’ offer in the former action, which the plaintiff’s counsel claims conclusively determines his right to recover in this action. This claim must be based on the theory that inasmuch as in «that action a claim was made for rent falling due August 1, and November 1, 1877, upon the allegation of the renewal of the tenancy after May 1, 1877, and the offer of judgment was a general one, the judgment establishes the continuance of the relation of landlord and tenant after May 1, 1877, and the relation once established could not be terminated until the end of a current year. In this matter we are met with the fifth finding of fact below, which is as follows: “V. That in such action the defendants offered to allow judgment to be entered against them for the two first named quarterly installments, with interest as claimed, viz.: for $500, and interest thereon from February 1, 1877, and the further sum of $500 and interest from May 1, 1877.”

An exception was taken by the appellant to so much of this finding as finds that the defendants, in the action named, made any offer of judgment except for the principal sum of $1,000, with interest on $500 thereof from February 1, 1877, and interest on $500 thereof from May 1, 1877, besides the costs and disbursements accrued in said action, to January 24, 1881, as contrary to the fact and evidence in the case.”

There seems to be good ground for the exception, inasmuch as there is no evidence to show that the offer of judgment by the defendants was for the two first named quarterly installments, and the offer itself was a general one, to compromise the claim sued on.

It is, of course, within the view of ordinary perception that the offer of compromise was made in consequence of the expression of the court of appeals, but that fact does not permit us to say that an offer, general in its terms, should, as a matter either of fact or law, be construed as relating to a particular part of the claim on which suit is brought. A defendant may offer to compromise an entire claim, as to part of which his liability is clear, and as to a part not so, by the payment of a gross sum equal to that as to which his liability is clear.

But if we hold, as I think we ought, that the fifth finding of fact, in the respect excepted to, was wrong, what is the logical result ? Did the judgment entered upon the offer to compromise for a sum less than the amount claimed, constitute an adjudication upon the rights of the parties, with reference to the subject matter in litigation, so as to create thereafter an estoppel to a denial by the defendants of a tenancy after May 1, 1877? We have not been cited-to any authority, nor have we ourselves been able to discover any, which sustains that proposition,

If the plaintiff had recovered judgment for the full amount claimed, it would have constituted a substantial adjudication that the tenancy continued after May 1, 1877; but the recovery of the amount offered in compromise in this case, would not necessarily have constituted such an adjudication. The right to recover rent from May, 1876, to May, 1877, rested upon a different state of facts from those on which the right to recover from May, 1877, to May, 1878, was based; and if a jury, upon a trial, had rendered a verdict for the amount offered in oompromise here, it could not be said that they had found that the tenancy continued after May 1, 1877, for the whole amount of the verdict would only equal the amount due for rent which had accrued previously to that time.

An offer of judgment is peculiar. In many respects it is like negotiations looking toward a settlement, which may not be put in evidence. Its effect certainly is not greater, so far as the doctrine of res adjudícala is concerned, than would be the finding of a jury. And so, we are constrained to the conclusion that the plaintiff’s contention cannot be sustained.

But there is one logical result of the conclusion to which we have come with reference to the effect of the judgment entered upon the offer, which makes conclusively against a part 6f the claim in the plaintiff’s present action; which is, that the claim for rent falling due August 1, and November 1,1877, having been made a part of the plaintiff’s cause of action in the former suit compromised by the offer, became merged in the judgment entered therein, so that the plaintiff’s action in this case, so far as that portion of his claim is concerned, is jarred by that judgment.

The defendants made a general offer to compromise the claim sued on. There was no proof, nor any stipulation between the parties,by which it was agreed that any part of the cause or causes of action sued on, should be held to be withdrawn from the contemplation of the parties in making the compromise, and, therefore, the case does not come within those authorities cited by the counsel for the appellant, in which a party was permitted to bring a new action for a severable cause of action sued on, or alleged by way of counter claim, in a former action, upon its being made to appear to the court, either by parol evidence or by stipulations, that such cause of action was withdrawn, and not litigated on the trial of the former action (Kerby v. Daly, 63 N. Y. 659; Knox v. Hexter, 71 Id. 461).

There can be little doubt, and these authorities concede, that in the absence of proof of such withdrawal, a general verdict or judgment would be a bar to a further suit on account of any cause of action or counterclaim pleaded in the action in which judgment was had (Wait' s Actions and Defenses, 776, title ‘‘ Former Adjudication Hopf v. Myers, 42 Barb. 270; Pinney v. Barnes, 17 Conn. 420; Dodd v. Blockstook,1 Pittsburg, Pa. 46 ; Bagot v. Williams, 3 Barn. & Cress. 235.

If, in the former action between the parties here, a trial had been had upon the pleadings as they stood, a general verdict had been rendered, and judgment entered thereupon, such judgment would have been a bar to any action for a claim included in the complaint in that action. The plaintiff’s only remedy, in case the verdict had been for the sum offered in compromise here, would have been to move to set aside the verdict for inadequacy, and to appeal (Philips v. Berick, 16 Johns. 136).

“Spencer, J.

Where, for instance, a demand of a party is submitted to a j nry, and they see fit to disallow it, either for want of sufficient proof, or for, any other cause, a verdict and judgment thereon is conclusive, and the same demand is barred forever.”

So long as the judgment stood of record, it would have been res adjudieata. A judgment entered upon an offer of compromise certainly cannot put a plaintiff in a better position than he would have been with a verdict for the same amount, in the absence of any proof that a portion of the claim embraced in the complaint was withdrawn and not litigated (See Smith v. Jones, 15 Johns. 229; Farrington v. Smith, Id. 442; Miller v. Covert, 1 Wend. 487; Guernsey v. Carver, 8 Id.492; Stevens v. Lockwood, 13 Id. 645).

In Dodds v. Blackstock (1 Pittsburg Rep. 46), it was held that “ when a defendant offers to confess judgment for part of the plaintiff’s claim, and the plaintiff enters judgment for the amount so tendered, and proceeds to execution, he cannot recover the balance of the claim.” In that case, the plaintiff filed a bill of particulars and an affidavit of claim for the sum of $315. The defendant offered to confess a judgment for $206.12, which he admitted to be due, and filed an affidavit of defense as to the residue. Judgment was entered for the sum of $207.12, without prejudice to a recovery for the balance.” The case went to trial on a special plea setting forth the above facts. A verdict was rendered for the plaintiff under the direction of the court, who reserved the question whether the facts appearing of record constituted a bar to the recovery of the balance of the plaintiff’s claim. It was held that it did, and the decision was affirmed in the supreme court, but unreported.

In Brazier v. Banning (8 Harris, 345), an action of covenant for the recovery of ground rent, an affidavit of defense was made to part of the claim; judgment was taken for the part not disputed, and payment was voluntarily made; it was held that the plaintiff was precluded from recovering more that the judgment taken was a bar to any farther proceedings for the cause of action.

But for section 511 of the Code,—which permits the entry of an interlocutory judgment for an amount admitted to be due,—our practice would be the same. The general rule of law is the same.

In Bagot v. Williams (3 Barn. & Cres. 235), the headnote correctly states the case: “Assumpsit for money had and received. Plea, a judgment recovered, for want of a plea, for £4,000 in an inferior court in Wales for the same causes of action. Replication, that the causes of action were not the same, and issue joined thereon. At the trial it appeared that the defendant had received, on account of the plaintiff, and as Ms steward, different sums of money at different times, and that, on the investigation of the accounts, the plaintiff found that there was due to him a much larger sum than that for which he had declared in the inferior court, but that he had proceeded for the smaller sum under the belief that the defendant had no available property beyond that amount; defendant in that action suffered judgment by default, and plaintiff verified for three thousand four liu ndred pounds. Held, that all the sums which the plaintiff knew the defendant had received at the time when he commenced.the action in the inferior court, were to be considered as causes of action in respect to which he had declared and recovered judgment.”

Bailey, J., in the course of his opinion, says : “In this case Lord Bagot, at the time when the first action was commenced’ had a demand upon the defendant, not for any specific sum of money, but for different sums of money received by the defendant on his account, from different persons and at different times. His agent knew he had claims in respect of all the sums now claimed, except forty-six pounds, and, having tha.t knowledge, he formed an opinion that three thousand four hundred pounds was the whole sum which Lord Bagot ought to claim, and if he acted upon that opinion it is much the same thing as if a plaintiff in a cause at nisi prius, having a claim of sixty pounds, consisting of three sums of twenty pounds, which became due to him at different times, consented to take a verdict for forty pounds. If the jury in such case, at the suggestion of the plaintiff, reduced the verdict to forty pounds, he would be bound by it, and could not after-wards bring an action for the other twenty pounds. It seems to me that he is equally bound by his own act in this case as he would have been by the verdict of a jury in the other, and that, having chosen to abandon his case once, he has done it forever.”

In Pinney v. Barnes (17 Conn. 420), a suit had been brought upon a removed executors’ bond, for malfeasance, and a recovery had. Among the breaches alleged in that suit were, that the defendant had neglected and refused, upon demand made therefor, to pay over to his successor the moneys in his hands belonging to the estate. On a scire facias afterwards brought on this judgment to recover moneys which were in the hands of such executor to pay certain legacies, it was held that the former suit was a bar.

The authorities from which I have quoted go much further than it is necessary to go in this case, except those in Pennsylvania, which are the only ones exactly in point that have come within my observation.

The law as to payment, accord and satisfaction, and releases, by analogy throw some light upon the same question; and there can be no doubt that if the plaintiff making a claim, such as he made in the former action, which was disputed by the defendant, had received the sum for which he entered judgment on the offer of compromise, either in payment or as an accord and satisfaction, or certainly for a release of such claim, he could not again assert a right of recovery upon it (Cooper v. Parker, 14 Com. B. 118; S. C. on appeal, 15 Com. B. 822).

I am, therefore, of opinion that the plaintiff’s claim in this action to recover for the rent which, according to his theory, fell due August 1, and November 1,1877, was barred by the judgment entered on the offer of compromise in the former action.

The judgment must be affirmed, with costs.

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


source: Caselaw Access Project

author: By the Court.—Horace Russell, J.

license: Public Domain

text:
    WILLIAM H. DUSENBURY, as Adm’r, &c., Appellant, v. CHARLES DUSENBURY, Respondent.

      Evidence—supplementary proceedings—admission of examination on in civil actions.

    Examinations taken in supplementary proceedings being now admissible in evidence under section 2460 of the Code, as amended, as an admission against the interest of the party examined, and against a .defense he may set up—the exclusion of such testimony in which defendant swore he was not a partner in a certain firm, necessitates the reversal of a judgment for defendant entered on dismissal of plaintiff’s complaint, even though witnesses called by the plaintiff testified that defendant was a partner, it not being so clear that no injury was done the plaintiff by the exclusion of the testimony offered, as that the judgment should nevertheless be sustained.
    Before Sedgwick, Ch. J., and Russell, J.

      Decided April 3, 1882.

      Appeal from a judgment for the defendant, entered upon the dismissal of the plaintiff’s complaint.
    The plaintiff sued for the sum of $4,671, alleging that such sum, being due the intestate at the time of his death, had been collected and retained by the defendant.
    The answer alleged that the defendant and one Benjamin H. Dusenbury were partners of the plaintiff’s intestate under the firm name of Thomas Dusenbury & Sons, and that the defendant collected such moneys as a surviving partner, and was only liable to account as such to the other surviving partner and the representatives of the intestate.
    On the trial, the plaintiff offered in evidence the testimony of the defendant taken in proceedings supplementary to an execution, October 3, 1876, in which the defendant swore that he was not a member of the firm of Thomas Dusenbury & Sons-. The exclusion of such testimony was made the ground of an exception. -

      Ira D. Warren, for appellant.

      Hall & Blandy, attorneys, and Charles H. Blandy, of counsel, for respondent.
   By the Court.—Horace Russell, J.

This trial took place June 20, 1881. At that time the amendment to section 2460 of the Code, passed April 20, 1881, had not been published. Before that amendment, the section provided that examinations taken on supplementary proceedings should not be used as evidence against the party examined in criminal or civil proceedings. The amendment struck out the word “ civil.” At the time of the trial, then, the affidavit of the defendant was admissible as an admission against his interest and against the defense he set up.

It is claimed that, notwithstanding this error, the judgment ought nevertheless to be upheld, because it produced no harm to the plaintiff, inasmuch as the witnesses called by the plaintiff testified that the defendant was a partner.

I cannot subscribe to that view. It might be said that, by reason of the exclusion of this piece of testimony, which would have created an issue to be submitted to the jury, the plaintiff was put to the desperate hazard of calling the adverse party and those friendly to him. It may also be said that one of the witnesses testified to conclusions rather than facts, and his testimony might be taken in favor of either side, and the other sustained such relations to this case and to the parties as that the jury might, had they chosen, have discredited his testimony. It cannot be said to have been impossible that the firm name, Thomas Dusenbury & Sons, was employed, and yet that the sons and father were not in fact partners inter sese. There is, at any rate, some evidence going to show that they were receiving a certain share of the profits in lieu of salary. The conclusion reached by the learned judge who presided on the trial may have been the one which the jury would have reached, and ought to have reached, if the testimony excluded had been received. But we cannot say that that is so clear as that if the jury, with such testimony before them, had reached the opposite conclusion, this court would have been justified in setting the verdict aside ; that is to say, it is not so clear that no injury was done the plaintiff by the exclusion of the testimony offered as that the judgment should nevertheless be sustained.

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

Sedgwick, Ch. J., concurred.


text:
    MANSFIELD COMPTON, Appellant, v. JOHN O. WHITEHOUSE, et al., Respondents.

      Attorney and client—agreement for compensation, construction of.—Motion to revive action.

    W. and H., who had recovered a judgmentagainst S., employed plaintiff to resist S.’s application to be relieved from the judgment, agreeing that he “should have one-half of the judgment and should receive one-half of the money that should thereafter be collected and received thereon.” W. andH. having died, plaintiff brought this action against the executors of each, individually, and as executors, alleging that defendants received from S., without plaintiff’s knowledge or consent, the amount of the judgment and satisfied the judgment of record; and claiming an accounting.

      Held, that such agreement amounted to no more than fixing plaintiff’s compensation at one-half of whatever should be collected on the judgment, and did not contemplate that W. and H, should be prevented from collecting the judgment and satisfying it; that the collection of the judgment by the executors of W. and H. was an act done in their representative capacity, and plaintiff has his right of action to recover the amount so collected; but that plaintiff does not state a cause of action against the defendants individually, and therefore, the motion to revive the action against the personal representatives of defendant Whitehouse was properly denied.
    Before Freedman and Russell, JJ.

      Decided April 3, 1882.
    Appeal from an order denying a motion, made by the plaintiff, to revive the action against the personal representatives of John O. Whitehouse, who has died since the action began.
    The complaint was entitled “ Mansfield Compton v. John O. Whitehouse and Henry Elliott, and John O. Whitehouse and Henry Elliott, as executors of the last will testament of Joseph O. Whitehouse, deceased, and Henrietta Hollingshead and Charles Aikman, as executors of the last will and testament of William M. Hollingshead, deceased.”
    It alleges that in September, 1867, Joseph T. White-house and William M. Hollingshead, as partners, recovered a judgment for $1,074, against one Abraham Solomon, from which judgment, which carried a right of arrest, Solomon sought to be discharged' by various proceedings in bankruptcy and in the court of common pleas ; that Whitehouse and Hollingshead employed the plaintiff to resist Solomon’s applications to be relieved from the judgment, agreeing that for such services the plaintiff should have one-half of the judgment and should have and receive one-half of the money that should thereafter be collected and received thereon. The plaintiff claims that he performed his contract and prevented Solomon’s discharge, and that, thereafter, Whitehouse and Hollingshead having died—-the former in 1869 and the latter in 1871—the persons named in the title of this action were appointed their executors, and that afterwards, on June 28, 1871, the defendants received from Solomon, without the knowledge or consent of the plaintiff, the amount of the judgment, and satisfied the judgment of record.
    The plaintiff now claims that being entitled to one-half of the amount recovered by the defendants, he is entitled to an accounting on the equity side of the court.
    The defendants deny the agreement, deny that they received the full amount of the judgment from Solomon, but allege that it was compromised at $215 ; allege a release by the plaintiff to Solomon of his interest; allege that they were appointed executors in 1870, published the usual notices, and were discharged from their trust in 1879, the plaintiff having made no claim against them.
    John O. Whitehouse died in August, 1881, whereupon this motion to revive the action against his executors was made.

      Mansfield Compton, appellant in person.

      Alonzo C. Farnham, for respondents.
   By the Court.—Horace Russell, J.

This motion was made below, and the appeal from the order denying it was argued before us, oh the assumption that the plaintiff had stated in his complaint a cause of action against the defendants personally, as well as against them as executors of their respective testators. The argument was that the alleged injurious acts of the executors of Whitehouse and Hollingshead, as stated in the complaint, were in exercising control and dominion over the plaintiff’s part of the judgment and in receiving his part of the produce thereof, behind his back and without his knowledge or assent, and did not consist merely in breaches of the decedent’s promises.

The contract, as alleged between the plaintiff and the decedent, stated in the view most favorable to the plaintiff, did not contemplate that they should be prevented from collecting the judgment and satisfying it. If the deceased had a right to collect it, their executors had. The plaintiff claims that he was to have one-half the judgment or one-half of whatever amount should be collected thereon. It cannot be said that this per se made him the legal owner of one-half the judgment as it stood upon the record. It amounts to no more than fixing his compensation at one-half of whatever should be collected upon the judgment; that is to say, it was a contract between the deceased that in the event of their ever collecting anything on the judgment, they would pay to the plaintiff one-half of the sum so collected. It cannot, then, be said that it would have been a wrongful act in them, as against the plaintiff, to collect and to satisfy the judgment, with or without the plaintiff’s knowledge, nor was it wrongful in their executors to do, with reference to a judgment standing in their name, what they would have had the right to do if living. It was an act done in their representative capacity—simply the collection of the assets of the deceased, and the plaintiff had his right of action to recover upon his contract the amount agreed to be paid him by the deceased. And that was' all.

The complaint does not state a cause of action against the defendants individually, and the motion to revive the action against the personal representatives was, therefore, properly denied.

The order appealed from must be affirmed, with costs.

Freedman, J., concurred.


text:
    MANSFIELD COMPTON, Appellant, v. HENRY ELLIOTT, et al., Impleaded, Respondent.

      Statute of limitations.-—Balease.

    The complaint alleged that plaintiff, having obtained a judgment for . defendant’s testator against one S., was employed by said testator to resist proceedings by S. to be relieved from the same, upon an agreement that he “ should have one-half of said judgment, and should have and receive one-half of the money that should be collected and received thereonthat thereafter defendant and his co-executors without plaintiff’s knowledge collected said judgment and satisfied it of record; an accounting was prayed for. Held (on demurrer to the defense that the cause of action did not accrue within ten years prior to the commencement of the action), that the six years’ limitation should apply, the action being on express contract notwithstanding an accounting was asked; that no demand was necessary to set the statute running; and therefore ten years had elapsed since the cause of action accurred.
    Upon demurrer to the defense that plaintiff had by release under seal released S. from the judgment, in consideration of the payment to him by S. of §100, and that said sum was received in satisfaction of the subject-matter of the action,—Held, that a party may release a cause of action against one person upon a consideration flowing from another.

      Before Sedgwick, Ch. J., Freedman and Russell, JJ.

      Decided April 3, 1882.
    Appeal by the plaintiff from an order overruling demurrers to defenses alleged in the answer, and from the judgment entered upon such order.
    The complaint alleged that on September 8, 1867, Joseph. T. Whitehouse and William H. Hollingshead, as partners, recovered a judgment for $1,074.62 against one Abraham Solomon, and that, in 1867 and 1868, Solomon, being engaged in endeavors to relieve himself from the judgment, by bankruptcy proceedings, and from the orders of arrest granted in the action, the judgment creditors agreed, in consideration of the plaintiff’s preventing Solomon’s discharge, that he “should have one-half of the said judgment, and should have and receive one-half of the money that should thereafter be collected and received thereon. ” It then alleged the performance of the conditions on his part, the death of Whitehouse and Hollingshead,—the former in 1869 and the latter in 1871,-—the appointment of the defendant as one of the executors of Hollingshead ; and ’that, on June 28,1871, the defendant and his co-executors, without the knowledge of the plaintiff, collected from Solomon the amount of the judgment, and satisfied it of record ; and it asks judgment against them in their representative capacity and as individuals, that they account to him for one-half the amount of the judgment.
    Among other defenses, this defendant alleged that the cause of action stated in the complaint did not accrue within ten years before the commencement of the action. The other defense demurred to, was that the plaintiff, before the commencement of the action, for the consideration of $100 paid him by Solomon, released and discharged Solomon from the judgment, and especially one-half thereof ; that the release was under seal, dated January 5, 1881, and that “the said one hundred dollars was received by the plaintiff in full satisfaction of all his real and pretended rights and claims in the subject-matter of the action.”

      Mansfield Compton, appellant in person.

      A. C. Farnham, for the defendant.

       See Compton v. Whitehouse, ante, p. 208.

   By the Court.—Horace Russell, J.

On the argument- the defense of the statute of limitations was discussed as if it were a demurrer, alleging that on the face of the complaint it appeared that the plaintiff’s cause of action did not accrue within ten years before the beginning of the action, and much was said on the subject whether or not the statute began to run from the time when the moneys were collected by the defendant, or only from the time of a demand made by the plaintiff. It is not a demurrer, and cannot be treated as such. We are concerned to know, not whether the answer can be proved, but whether, if proved, it consti- • tutes a good defense. The answer employs the usual form in pleading the statute of limitations. The allegation is that the plaintiff’s cause of action did not accrue within ten years, and the demurrer admits, for present purposes, that the allegation is true. We can look to the complaint only to ascertain the nature of the cause of action, not when it accrued. It becomes necessary, therefore, to consider only whether the cause of action sued on was one barred by the statute in ten years. We think it was barred in six years, by subd. 1 of § 382 of the Code, being really a cause of action on express contract. Under certain circumstances the plaintiff might perhaps have brought a suit in equity to charge a specific fund, but it is now too late, and his allegations and demand for an accounting are not enough to make this an -action in equity. But it is not necessary so to decide for the purposes of this appeal, and, as § 388 of the Code provides that the time of limitation for all actions not specifically provided for in other sections shall be ten years, ten years is certainly the extreme limit of the statute upon the cause of action set up in the complaint. It follows that the demurrer to this defense was properly overruled.

As it is likely that on the trial of the action the question may again arise whether it was necessary that there should be a demand in order to set the statute running, we will say we are clearly of opinion that it was not (Herrick v. Wolverton, 41 N. Y. 581, 596 ; Hirst v. Brooks, 50 Barb. 334; Wheeler v. Warner, 47 N. Y. 519).

It is only in cases of deposit (Payne v. Gardner, 29 N. Y. 146 ; Thomson v. Bank of Brit. N. A., 82 Id. 1), or where the holder of the money has an express (Boughton v. Flint, 74 N. Y. 476) or implied right to retain it until a demand, that a demand is necessary to set the statute running.

We have already expressed the opinion that the plaintiff’s cause of action arises out of contract. His right to maintain an action was perfect as soon as the moneys were collected by the defendant. It became ffieir duty, assuming his allegations to be true, to pay over the moneys to him at once, and no demand on his part was necessary before bringing suit (Stacy Graham, 4 Kern. 492). The beginning of a suit would itself have been a sufficient demand. The statute of limitations then began to run from the time the moneys were received by the defendants. It is like any other case where A. agrees to pay B. a certain sum of money upon the happening of a certain event. B.’s right of action accrues upon the happening of the event, and the statute of limitation begins to run from that time (Bruce v. Tilson, 25 N. Y. 194; Adams v. Fort Plain Bank, 36 Id. 255; Mygatt v. Wilcox, 45 Id. 306; Quackenbush v. Ehle, 5 Barb. 469 ; Foot v. Farrington, 41 N. Y. 164). No demand is necessary before beginning an action against one who receives money to another’s use (Howard v. France, 43 N. Y. 593).

As to the other defense demurred to, we are not called upon to determine what the construction of the release actually given should be; the paper itself is not before us; we must take it as stated in the answer, and the allegation that $100 was received in full satisfaction of the plaintiff’s claim and all his real and pretended rights and claims in the subject-matter of this action, was enough to constitute a good defense. A party may release a cause of action against one person upon a consideration flowing from another (Tuckerman v. Sleeper, 9 Cush. 177; Cook v. Lister, 13 Com. Bench N. S. 543; Harrison v. Hicks, 1 Port. [Ala.] 423).

The result is, the order and judgment appealed from must be affirmed with costs, with leave to withdraw the demurrers on payment of costs.

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


author: By the Court.—Arnoux, J.

text:
    NOAH WHEATON, Appellant, v. RICHARD S. NEWCOMBE, Respondent.

      Attorney and client—costs belong to client—false representation as to amount collected—settlement between.—Nonsuit—power to direct.

    Under the Code, the costs in an action belong to the party; the attorney has simply a lien for the amount of his compensation, whether measured by the costs or otherwise.
    Upon settlement with his attorney, a client is justified in relying upon the attorney’s word as to the amount collected on the judgment, without doubt or inquiry as to the accuracy or verity of the statement.
    That an attorney, upon a settlement with his client, represents that the sum recovered under a judgment, was an amount equal to the original claim and interest, whereas including costs it was a much larger sum, and the client, believing and relying upon such statement, accepts said first named amount in settlement—furnishes ground for an action of deceit against the attorney.
    The power of a judge to direct a nonsuit is limited to a case where there is no evidence to support- a verdict for plaintiff, and where no-inferences can be drawn from the undisputed evidence favorable to plaintiff.
    Before Russell and Arnoux, JJ.

      Decided April 3, 1882.
    Appeal from judgment entered on a verdict directed for defendant.
    This was an action brought by a client against his-attorney for deceit.
    The facts are stated in the opinion.

      Hart & Bamberger, attorneys, and M. L. Townsend, of counsel, for appellant.

      R. S. Newcomb, respondent in person, and William Fullerton, of counsel.
   By the Court.—Arnoux, J.

The complaint alleges that the defendant, as attorney, had collected $2,175 on two judgments recovered by plaintiff that defendant, to induce plaintiff to accept a certain sum in settlement, had represented that only $1,134.41, had been so collected, and that plaintiff had made-such .settlement relying on such statement. The answer admits the collection of the moneys, but. sets up that the excess above said sum of $1,134.41 was-the amount of the costs, and that the plaintiff is not the-real party in interest.

Upon the trial, plaintiff testified that on or about December 1,1875, defendant stated to plaintiff that the-matters were settled, and said, “ there was the account.” This was entitled “Noah Wheaton, in account with Richard S. Newcombe,” and upon its face was the following entry: “Amount recovered, $1,134.41.” .The plaintiff further testified that about a fortnight after-wards, he called upon defendant for the purpose of settling, when he said, referring to said account “ There is the account; take that or nothing.” He further testified that at the time the statement was handed to him, he supposed that $1,134.41 was all that the defendant had collected in the case ; that a year after, he met Mr.Fay, one of the judgment debtors, with whom he had a conversation, and up to that time he had no knowledge that the amount obtained in the action was any other than what was stated in said account. It appeared in evidence that the original judgment was appealed to/the general term, and to the court of appeals, and was affirmed with costs; that the amount stated in the account was simply the amount of the debt and interest, without the costs; and that at different times, the costs were alluded to in the presence of Mr.Quackenboss, the assignee of the claim, if not in the presence of the plaintiff himself. So that, notwithstanding the explicit denial of the plaintiff of knowledge, his statements on that subject might be regarded with suspicion. The learned judge who tried the cause was so impressed thereby that, although when the plaintiff rested, he refused a motion for a nonsuit, on this admirable statement of the law : “ On a motion for a nonsuit evidence is to be taken in the light most' favorable to the plaintiff, and regardless of any explanation which can be offered by the defendant,”—nevertheless, on the close of the whole case, he granted the nonsuit upon the ground that he was satisfied upon the evidence that plaintiff had means of knowledge, or did possess knowledge, at the time he settled with defendant, that the costs had also been recovered, ^notwithstanding that he testified to the contrary.”

In granting the motion we think the learned judge erred. Where there is a conflict of evidence, the judge in the first instance is bound to submit the case to the jury (Nourry v. Lord, 2 Keyes, 617 ; Howell v. Gould, 3 Id. 422; Dunham v. Troy Union R. R. Co., 3 Id. 543; Fellows v. Barton, 66 Barb. 608 ; Fish v. Davis, 62 Id. 122); although he may subsequently set aside the verdict as against the weight of evidence. His power to direct a nonsuit is limited to a case where there is no evidence to support a verdict for plaintiff, and where no inferences can be drawn from the undisputed evidence favorable to plaintiff (Dunham v. Troy Union R. R. Co., 1 Abb. App. Dec. 565, 568; Colt v. Sixth Ave. R. R., 49 N. Y. 671 ; Clemence v. City of Auburn, 66 Id. 334, 338; Thompson v. Dickerson, 12 Barb. 108, 111; Philips v. Wilpers, 2 Lans. 389; Beckett v. Taylor, 55 How. Pr. 126; Thompson v. Lumley, 50 Id. 105; Carl v. Ayres, 53 N. Y. 14). The fact, therefore, that there was a conflict of evidence, made it the duty of the court to submit that question to the jury. The question then to be considered is whether the statement was untrue, or whether there was a suppressio veri that amounted to a suggestio falsi.

Under the Code the costs belong to the party (Stow v. Hamlin, 11 How. Pr. 452; Garr v. Mairet, 1 Hilt. 498; Easton v. Smith, 1 E. D. Smith, 318; Moore v. Westervelt, 3 Sandf. 762; Bartle v. Gilman, 18 N. Y260, 262; Van Every v. Adams, 10 J. & S. 126). Thattorney simply has a lien for his compensation, whether it is to be measured by the amount of the costs or otherwise (Rooney v. Second Ave. R. R. Co., 18 N. Y. 368; Macgregor v. Comstock, 28 Id. 237; Marshall v. Meech, 51 Id. 140; Wright v. Wright, 70 Id. 100; Pulver v. Harris, 52 Id. 73; Crotty v. McKenzie, 10 J. & S. 192, where the authorities are collated). The costs do not primarily belong to the attorney. So that, when the defendant collected the whole amount of the judgment ($2,175), and represented that the amount recovered was $1,134.41, he at least inadvertently made an incorrect statement. There was a suppression of the facts that might have deceived the plaintiff. Besides that, although the judgments amounted to more than the sum stated, and that might have been known to plaintiff, the last-named sum might have been the entire amount recovered, and the plaintiff might have so believed. He was not bound to doubt or inquire into the accuracy or verity of such statement. He had the right to rely upon the word of his own attorney. The case of White v. Seaver (25 Barb. 235), cited by counsel for respondent, is not an authority in this case. There the action was for false representation regarding the title to real estate. Title to real estate is matter of record, and the rule invoked does not apply in a case of money had and received.

We do not mean in the slightest degree to reflect upon or even to criticise the conduct of the defendant in this case. We simply are bound to declare the law, that as there was a conflict of evidence upon a material question, however improbable the statement of the plaintiff might have been, it was the duty of the judge to submit it to the jury, and permit them to weigh the evidence and determine the fact.

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

Russell, J., concurred.


author: Per Curiam.

text:
    HENRY A. BATE, Appellant, v. WILLIAM O. McDOWELL, et al., Respondents.

      Attachment—deposit in lieu of undertaking.

    Upon an application for an attachment the undertaking required by section "F40 of the Code of Civil Procedure must be given, and the judge has no power to accept a deposit of money in lieu thereof.
    Before Sedgwick, Ch. J., and Russell, J.

      Decided April 3, 1882.
    Appeal by plaintiff from order setting aside attachment issued under section 633 of the Code of Civil Procedure.

      In applying for the order of attachment, in lieu of an undertaking, a sum of money was deposited. This was made one of the grounds of setting aside the attachment. On this point, Judge Freedman said, “ The attachment should be vacated, because the undertaking required to be given by section 640 was not given. Though the attachment on its face recites that the plaintiff gave the undertaking required by law, yet no undertaking of any sort was given, and hence there is nothing that can be amended. The provision that the judge, before granting the warrant, must require a written undertaking with sufficient sureties to the effect as prescribed by section 640, is mandatory, and as in the case of an attachment no provision exists, as in some other cases pursuant to which the undertaking may be dispensed with or something else accepted in lieu of it, the judge who granted the attachment had no power to accept a form of security different from that prescribed by the statute and the effect of which may give rise to dispute.”

      John Brooks Leavitt, for appellant.

      James A. McCreery, for respondent.
   Per Curiam.

Order appealed from affirmed with costs, on the opinion below, as to the effect of not filing the undertaking.


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

text:
    LEWIS S. CHASE, Appellant, v. THE SECOND AVENUE RAILROAD CO., Respondent.

      Contract for advertising privilege—nature of—presumption as tocontinuance.—Statute of frauds.

    Plaintiff and defendant entered into a "written contract whereby defendant allowed plaintiff to place advertisements in its cars for two years ending December 30, 1878, plaintiff to pay $100 monthly. After the first term plaintiff continued to put advertisements in said cars, defendant stating as to compensation, “ Let it go on at the same rate.” No other agreement was made. On March 21, 1881, defendant notified plaintiff that the advertisements must be removed on May 1, following, which not being done, defendant removed them. It appeared that when the original contract was made, plaintiff stated that his business was to obtain contracts to put advertisements in the cars, and that a privilege from defendant for one year only would be of no use to him. The complaint charged that on December 30, 1882, a new agreement for two years was entered into, and claimed damages for its breach.

      Held, on appeal from decision of single judge, the court considering only the facts, that the privilege was rightfully terminated by defendant. Russell, J., dissenting, Held, that the contract was analogous to the letting of a chattel, that notwithstanding plaintiff’s statement at the time of making the original agreement, the contract at the time plaintiff’s advertisements were wrongfully removed, must be deemed to have been from year to year.
    Before Sedgwick, Ch. J., Freedman and Russell, JJ.

      Decided May 1, 1882.
    Appeal by plaintiff from judgment dismissing complaint, entered upon decision of judge at trial term, a jury having been waived.
    The plaintiff and defendant entered into a contrac t in writing, whereby the defendant was to allow the plaintiff to place certain advertisements in the cars of the company, for two years, to end on December 30, 1878, and the plaintiff was to pay $100 monthly. The parties proceeded under the contract down to December 30, 1878.
    The plaintiff testified on the trial that at the time of making the contract, he informed the officers of the defendant that his business was to get advertisements and make contracts with parties by the year, or as near to it as he could, and put them in the cars ; that he could not possibly make the contract with the defendant for one year, because the contract he could make the next day would run past such a lease: that he could not do anything at all on one year, because he took all his business, as near as he possibly could,—that is seven-eighths of it,—on yearly contracts for advertising ; that he could not take a lease for one year, as it was impossible for him to carry on his business, without having a lease for more than one year.
    At the end of the first term, the plaintiff continued the business of advertising in the car, and as to the amount of compensation to the defendant, its officer said, let it go on at the same rate. There was no new written contract after the first one. On March 21, 1881, the defendant gave to the plaintiff notice, that on the following 1st of May, he must remove the advertisements from the.car. On that day, the defendant not complying with the notice, the defendant took the advertisements from the car.
    The complaint charged, on December 30, 1880, that there was an agreement between the parties, “ whereby the said lease was further renewed for the space of two years therefrom,” and that the removal by the defendant was a breach of that agreement," and claimed damages for his being “deprived of the opportunity of making new contracts for the remainder of the two years.”

      Hutchins & Platt, attorneys, and Austin Q. Fox, of counsel, for respondent.

      John Brooks Leavitt, attorney, and James S. L. Cummins, of counsel, for appellant.
   By the Court.—Sedgwick, Ch. J.

If, as the complaint claimed, the contract for renewal, after December 30, 1878, was for the further term of two years, it was void, under the statute of frauds, as being a contract that by its terms was not to be performed within one year.

The further claim is made, in view of this conclusion, that at least the contract must be intended as one from year to year. This position is taken upon the proposition, that if the time of the duration of the contract is not specified, it will be intended to be for the time that the circumstances show it must last to be useful to the party who takes it; or that is equitable under the circumstances. As to this, the facts were so decisive, that it is unnecessary to examine how far, if at all, the legal proposition involved is correct. The plaintiff expressly testified that a contract for a year would not suit his business; that it was impossible to carry on the business without having the right for more than one year. Such being the term which would be implied from the circumstances of the business, a contract for it, if not in writing, could not be performed within a year, and would be void.

Indeed, if we again look at the circumstances, the kind of termination used by defendant as to time was suited to the needs of the plaintiff. It is plain that his contracts with advertisers did not end on any one day, much less on the 30th of each December. There is nothing to show that at the end of December, 1882, he would not have on hand implied engagements, as numerous as he had in March, 1881, when the notice was given. He gave no evidence to show what notice to terminate, short of a year, would be reasonable, if such a test were the one to be applied. The notice of five weeks given, gave him warning to stop making new contracts, and there is nothing to show that it was not sufficient for other purposes.

I examine only the facts, without intending to state the true rule of law to be applied.

Judgment affirmed, with costs.

The defendant appealed from an order which should be affirmed with $10 costs.

Freedman, J., concurred.

Horace Russell, J.

[Dissenting.]—I find myself unable to agree to the conclusion reached by the learned chief judge. It seems to me he magnifies the importance of the plaintiff’s opinion that a contract for less than two years would be of no value to him. I cannot think that the rights of the parties are to be determined by any such consideration, or that, because we cannot give, the plaintiff all he asks, we should, therefore, give him nothing.

The question is, as it seems to me, what contract, if any, arose by implication from the fact that after the termination of the time agreed upon, the plaintiff continued to pay, and the defendant to receive, rent, of the same amount, and in the same manner, as under the contracts.

The plaintiff’s claim is that the acts of the parties created, by implication of law, a new contract for the period of two years, whereas the defendant contends— and on that theory the complaint was dismissed—that after the expiration of the period agreed upon, the plaintiff was a mere licensee, and the defendant had a right to revoke the license.

That the law will imply a contract from the conduct of the parties is too well settled to require discussion or the citation of authorities. But the law will not imply an executory contract which would be void by the statute of frauds. The statute is an insuperable obstacle to an implied- contract for two years. While the time of performance of a contract in writing may be extended by parol, or even by implication, it cannot be extended so as to create a contract which the statute declares void.

The question, however, remains, whether a contract for the further period of one year, to end December 30, 1881, was created by the acts of the parties. ■ I am of opinion that it was ; and that the complaint was, therefore, improperly dismissed. But for the statute of frauds, I should be disposed to hold that the implication was for the same period as the original hiring (Sherwood v. Phillips, 13 Wend. 479). The law as to contracts for the leasing of lands and the hiring of personal services is so. I can see no reason for a different rule as to the hiring of a chattel.

The original agreement in this case was for the period of two years. It was extended by parol for the further period of two years. The defendant might have ended the renewed contract at the end of one year, because it was void under the statute, but the contract was executed and completed. The defendant might then have refused to receive rent, and might have treated the plaintiff, if he remained in possession, as a trespasser. But it did not. It received the rent for January, February and March. This, in my judgment, amounted to an election to renew the contract for the further period of one year. Having once exercised the right of election it could not thereafter recall it (Prindle v. Anderson, 19 Wend. 392).

It is well settled that where lands are let by parol for several years, so that the contract would be void under the statute, yet if the tenant goes into possession and pays rent, the law will uphold the letting as from year to year (Lee v. Smith, 9 Exch. 662). And so if after the termination of a valid contract for a number of years the tenant holds over, the landlord may treat him as a trespasser, or as a tenant from year to year (Schuyler v. Smith, 51 N. Y. 309). And the acceptance of rent after the end of a definite term, amounts to an election on the part of the landlord to treat the lessee as a tenant for another year (Roe d. Rigge v. Bell, 2 Smith L. C. 177 ; Wood Landl. & Ten. § 15, note 7; Jackson v. Wilsey, 9 Johns. 267 ; Jackson v. Parkhurst, 5 Id. 128 ; Jackson v. Anderson, 12 Id. 182; Prindle v. Anderson, 19 Wend. 391; Pugsley v. Aiken, 11 N. Y. 494).

Where the original letting is for a year, though the payments are to be made from time to time during the year, the implied renewal is for a year.

“If there was a general letting at a yearly rent, though payable half yearly or quarterly, and though nothing was said about the duration of the term, it is an implied letting from year .to year.” Lord Mansfield, in Richardson v. Landgridge (4 Taunt.. 128, 131).

This doctrine was recognized and reiterated in Knight v. Bennett (3 Bing. 361); Bolton v. Tomlin (5 A. & E. 856), and in the New York common pleas, Morris D. Niles (12 Abb. Pr. 103), where Daly, Ch. J., says: “The payment of the quarter’s rent was sufficient evidence of the existence of a tenancy from year to year, at the yearly rent indicated by the payment” (see also Reeder v. Sayre, 70 N. Y. 180).

The history of the law which has come to this result is interestingly stated by Savage, Ch. J., in Sherwood v. Phillips (13 Wend. 479).

If, then, a horse car were realty, there could be no doubt that the acceptance of the rent by the defendant after an agreed term, would create an implied contract to let for the further period of one year. That is to say, where parties have been proceeding under a contract, and, after its termination, continue to act in the sapae manner, the law creates an implication of a contract with terms and conditions similar to the original, with this limitation, that it will not imply a contract void by the statute. The new contract, created by implication, is to be determined by the' terms of the old or by the course of the parties during a former tenancy. If the old tenancy was from month to month, so will the new be: if the old tenancy was from year to year, so will the new be (Cowen, J., in Prindle v. Anderson, 19 Wend. 391).

Of course, cars are not realty, but personal property. The law, however, is not peculiar to lettings' of real estate (3 Wait' s Act. & Def. 582, title “Hiring”).

In Bleecker v. Johnson (51 How. Pr. 380), the plaintiff “was hired as a clerk at the rate of $1,500 a year, payable weekly;” the defendants sought to terminate the employment before the end of the year, claiming that the hiring was from week to week. The court held that the hiring was for a year, and the plaintiff was entitled to a year’s salary, citing: 2 Chitty Contr. 11 Am. ed. 841; Beeston v. Collier (4 Bing. 309); Turner v. Robinson (5 Barn. & Ad. 789); Fawcett v. Cash (Id.); Hullman v. Bontois (2 Carr. & P. 510); 1 Pars, on Contr. 518. . In William, Earl of Mansfield, v. Scott (1 Clark & Pin. (H. of L.) 319) the head-note is: “A master having admitted that, by his factor’s agreement, he promised to his servant, in addition to his ordinary wages, a present of twenty pounds, the service to be, at all events, till the end of one year, and that sum not having been paid at the expiration of the year, and the service having continued for several years,—Held, that the contract was renewed in all its parts from year to year, and, nothing being said to the contrary by either party, that twenty pounds was due for every year of the service.”

In Williams v. Byrne (7 Ad. & El. 177, decided on demurrer), the declaration stated that defendant promised plaintiff to employ him as reporter to a newspaper’, for a given salary, for one whole year from May 20, and so from, year to year to the end of each year commenced while the plaintiff should be so employed., reckoning each year to commence from May 20, for so long as plaintiff and defendant should respectively please. Breach, that after plaintiff had continued in the employment two years and a part of the third, defendant would not continue plaintiff in the employment to the end of the third year, but discharged him. Plea, that defendant offered to pay plaintiff a sum of money larger than plaintiff would have been entitled to, if a reasonable notice of determining the agreement had been given, and required plaintiff to quit immediately, and, at the same time, gave him a reasonable notice of defendant’s intention, in case the tender was refused, to put an end to the agreement, to wit, at the end of three weeks from October 31, instant; that plaintiff refused to accept and quit, whereupon defendant discharged him at the expiration of the notice, and that defendant was still ready to pay the sum tendered. On demurrer, Held, that the contract, alleged in the declaration and confessed to by the plea, was determinable only by notice ending with a current year ; and, therefore, that the plea was ho answer” (see Beeston v. Collyer, 4 Bing. 309).

In the case at bar, the original letting was for the period of two years, at a yearly rate, payable monthly. The contract implied from the act of the parties was like the original one, saving the statute of frauds. The defendant having received rent after the termination of the agreed terms, elected to treat the plaintiff as a lessee for the further period of one year. It could end the implied contract only at the end of the year. Its notice given on March 21, was ineffectual to end the contract, and its removal of the plaintiff’s signs and denial of his continued right, constituted adrespass, for which the plaintiff had a right to recover such damages as, under the rules on that subject, he could show.

The complaint was improperly dismissed, and there should be a new trial, with costs to abide the event.


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

text:
    WILLIAM H. POPHAM, v. THE TWENTY-THIRD STREET R. R. Co., and THE SIXTH AVENUE R. R. Co.

      Appeal by one of two joint tort-feasors.

    One of two defendants sued jointly for negligence, has no right of appeal from a decision of the trial judge, dismissing the complaint as to his co-defendant.
    Before Sedgwick, Ch. J., Freedman and Arnoux, JJ.

      Decided May 1, 1882.
    Motion to dismiss an appeal.
    While the plaintiff was riding in a car of the Sixth avenue Railroad Company the head of a horse driven for the Twenty-third street Railroad Company broke through the window, and portions of the glass struck the plaintiff’s eye and injured it so that it was necessarily taken out, and he sued the two roads jointly to recover damages for the injury, alleging that each was negligent. The case was tried before a judge with a jury, and the complaint was dismissed as to the Sixth avenue Railroad Company, and the trial proceeded as to the other defendant, and resulted in a verdict against it for $10,500. Judgment was entered by the plaintiff against the Twenty-third street Railroad Company for that amount and costs, and dismissing his complaint as to the Sixth avenue Railroad Company, and for its costs.
    Thereupon the Twenty-third street Railroad Company appealed, both as against the plaintiff and its co-defendant, the Sixth, avenue Railroad Company, and the Six th avenue Railroad Company moved to dismiss the appeal as to it.

      C. E. Crowell, for plaintiff.

      O.E. Bright, for defendant, the Twenty-third street Railroad Company.

      D. M. Porter, for defendant, the Sixth avenue Railroad. Company.
    No appeal can be taken by a party against whom no judgement has been entered by the respondent against whom he appeals. Liability for a negligence or tort is several, and an action may be brought and maintained against either (Kain v. Smith, 80 N. Y. 458). Under this authority, the plaintiff could discontinue his action as to the defendant, the Sixth avenue Railroad Company, and continue it as to the defendant, the Twenty-third street Railway Company, and the latter defendant cannot object, and would have no right to appeal from an order to that effect; and for a stronger reason it has no right to appeal from a judgment dismissing the plaintiff’s complaint as to the defendant, the Sixth avenue Railroad Company. There can be no claim for contribution between wrong-doers (Peck v. Ellis, 2 Johns. 130; Wehle v. Haviland, 42 How. Pr. 399 ; Miller v. Fenton, 11 Paige, 18 ; Anderson v. Murray, 33 Barb. 354; 1 Hill on Torts, 185, note a; Lingard v. Bramley, 1 Vesey & B. 117; Merriweather v. Nixon, 8 Term R. 186). This being so, the defendant, the Twenty-third street Railway Company, has no right to appeal as to its co-defendant, the Sixth avenue Railroad Company.
   By the Court.—Sedgwick, Ch. J.

I am of opinion that no appeal can be taken by the defendant, the Twenty-third street Railroad Company, from the order that was made upon the trial, on motion of the defendant, the Sixth avenue Railroad Company, dismissing the complaint as to that defendant, or from the judgment upon that order.

Motion to dismiss the appeal granted, with $10 costs.

Freedman and Arnoux, JJ., concurred.


author: By the Court. —Freedman, J.

text:
    THOMAS VERNON, et al., Appellants, v. ALBERT PALMER, Respondent.

      Manufacturing corporations—liability of t/rustee for non-filing of report— construction of act and amendments—debt, when contracted under—obligation of filing report—-failure to refer to statute in summons.

    A trustee of a corporation, organized under the act of 1848, who is in office when the company makes default in filing its annual statutory report, is liable under section 12, for a debt of the corporation contracted during the continuance of his office and of the default, although it be not payable till after he has ceased to be a trustee.
    A debt is contracted within the meaning of the statute when, in consideration of value received under the contract, by the corporation, a payment is to be made, whether at once or at a future period.
    A failure to indorse a reference to the statute on the summons, is cured, if it be a defect, by the trustee’s appearance and answer with out objection.
    The amendment of section 12 of said act, in 1875, did not relieve corporations theretofore organized under the act, from the obligation of filing annually the statutory report.
    The principles governing the effect and construction of statutory amendments, stated by the court.
    Before Sedgwick, Ch. J, Freedman and Russell, JJ.

      Decided May 1, 1882.
    This is an appeal from an order at the trial term dismissing the complaint, and from the judgment entered thereupon.
    The action was brought to recover from the defendant, as one of the trustees of the McKillop and Sprague Company, a debt of the corporation, under section 12 of the act of 1848.
    Upon the trial the following facts were conceded:
    That the action was begun November 18, 1878; that the plaintiffs were partners, as alleged, and that the McKillop & Sprague Co. wa'S incorporated under the act of 1848, chapter 40, and its certificate of incorporation was filed April 18, 1872; that the McKillop &
      Sprague Co., in 1873,1874, 1875,1876 and 1877, filed and published its annual report, but did not file or publish any report in 1878, and that a receiver for the corporation was duly appointed, and the corporation wound up November 6, 1878; that the defendant was, in August, 1876, elected a trustee for the year ending the first Tuesday of August, 1877, and- was elected for the next ensuing year, ending the first Tuesday of August, 1878 (August 6), and accepted the office, and that there never was a subsequent election of trustees; that the McKillop & Sprague Co., for value, gave to plaintiffs its certain promissory note for $979.07, which note became due August 10, 1878, and remains unpaid, and that the plaintiffs duly sold and delivered to the McKillop & Sprague Co. goods on agreed credit of four months after delivery, the deliveries and amounts being as specified' in plaintiff’s bill of particulars as delivered, being as follows:
    June 7, 1878, $ 9 44 << H, ÍÍ - 141 95 (6 14, < 6 1 80 July 6, C Í 4 93 ( 6 10, u 28 56 U 24, 6 i 57 80 Aug. 8, ÍÍ 168 30 July 26, (6 4 93
    And that these amounts are now due and owing from the corporation to the plaintiffs, with interest from the agreed day of payment; and that the amount of plaintiff’s claim is $1,687,62, including interest to date. It is conceded that that amount has never been paid.
    The court, at the close of the plaintiff’s case, dismissed the complaint, holding that the defendant was not liable, for the reason that, although he was a trustee when the goods were bought and the note given, his term off office had expired before the expiration of the term of credit, which had been given by the plaintiffs to the corporation.

      Paddock & Cannon, for appellants.

      James B. Dill, for respondent.
   By the Court. —Freedman, J.

Conceding that the liability of trustees imposed by the statute under which this action is brought, is in the nature of a penalty for misconduct in office, and that the statute should be strictly construed so as to hold trustees liable only for their own misconduct, and not for the default or misconduct or default of their predecessors on successors in office, I am nevertheless of the opinion that the plaintiff’s complaint was dismissed upon an erroneous exposition of the law.

True, the defendant’s term of office expired on August 6, 1878, and there was no proof that he acted after that time. He therefore could not be held for any debt contracted subsequent to the day named. But in the preceding month of January, while he was a trustee, the company had failed to make the annual report required by law. Upon such default all the trustees then in office, of which the defendant was one, became jointly and severally liable for all the debts of the company then existing, whether contracted by them or their predecessors, and for all that were subsequently contracted during their continuance in office and the continuance of the default (Vincent v. Sands, 33 Super. Ct. 511; affirmed, 58 N. Y. 673).

The debt of the plaintiffs was not existing at the time of the default, but as no report was subsequently filed, the defendant became liable for it, provided it was contracted between January 20, 1878, and August 6, of the same year.

The question is therefore presented as to when a debt of a corporation may, as against a trustee in default, be held to have been contracted within the meaning of the statute. The learned judge below was of the opinion that, as against the defendant, no debt can be deemed to have been contracted within the meaning of the statute, unless a right of action existed thereon against the corporation before the expiration of defendant’s term of office. If this were the correct construction of the statute, trustees, by simply resigning before the maturity of the debts which they themselves created during the continuance of their default, could escape all liability. The statute is not tó be so strictly construed as to defeat the very purpose for which it was enacted, and no case can be found that warrants such a course. In Jones v. Barlow (62 N. Y. 203), it is true, Allen, J., said : “No penalty attaches for the default if there be no debt; it is the debt which, under the statute, gives the right of action, and which is recovered. If there be no obligation giving a present right of action against the company, no debt or duty which may be presently demanded from the corporation, there is no debt or duty which can be demanded under the statute as a penalty against the trustees. The language of the statute is quite explicit, and imposes the liability for the debts of the company, and there is no debt within the meaning of the statute if the day of payment has not arrived.” But an examination of the whole case shows that the question now under consideration was not, involved in that case, but that the remarks quoted were made with reference to the fact that three out of . o the ten notes upon which a recovery was had against the defendants as trustees, were not due at the time of the commencement of the action ; that for that reason the action would have failed if it had been brought upon the three notes against the corporation, and that consequently no right of action existed upon said three notes against the trustees.

In the case of Shaler and Hall Quarry Co. v. Bliss (27 N. Y. 297), which is also strongly relied on by the respondent, Selden, J., used the following language : “ The true interpretation of the statute, I think, is that three circumstances must concur in point of time, to render a trustee liable, viz.: the existence of the debt; the existence of the default in making the report; and the trusteeship. Where these concur, the trustee is liable for all debts, if he was such trustee when the default occurred. If he was not a trustee at the time of the default, but became such afterwards, then his liability is limited to debts created while he remains trustee, and while the default continues.....” This language does not decide the question at issue. It was used with reference to the fact that one day after the defendants had ceased to be trustees and others had been elected in their places, the plaintiffs sold to the Hudson River Stone Dressing Co. a quantity of stone, and received the acceptances of said company therefor, which at maturity were dishonored.

These and other cases cited by the respondent do not therefore help him.

The true doctrine is that a debt is contracted when, in consideration of value received by the corporation, a payment is to be made, no matter whether at once or at a future period. The mere execution of a contract between the seller and the corporation, to the effect that the former shall deliver, and that the latter should receive and pay for, personal property at a future day, does not of itself amount to the contraction of a debt within the meaning of the statute, but upon the delivery of the property according to the contract the debt springs into existence. This must be so upon principle, and it is in accord with all the reported cases, and especially with the reasoning in Garrison v. Howe (17 N. Y. 458); Whitney Arms Co. v. Barlow (63 N. Y. 62); and S. C. (68 N. Y. 34).

That being so, the fact that credit was given is unimportant, as long as the period for which it was given has expired at the time of the commencement of the action. While the credit runs, the liability on the part of the trustees who created the debt during the existancepf a default, is dormant, but upon maturity of the debt and the failure of the company to meet it, the dormant liability ripens into a cause of action.

In the case at bar the McKillop & Sprague Co., with the exception of one or perhaps two items, received the goods according to contract while the defendant held the office of trustee and the default continued, and to that extent a debt was contracted within the meaning of the statute, for which the defendant, upon the expiration of the credit and the failure of the company to discharge it, became liable. There is no pretense that the action was prematurely brought.

For the foregoing reasons the dismissal of the complaint cannot be sustained upon the ground on which it was put, and unless the respondent is entitled to have the ruling upheld upon some other ground, there must be a new trial.

As to the objection that no reference to the statute was indorsed on the summons, the defect, if it was one, was cured by the defendánt’s appearance and by Ms answering without objection the complaint which was served with the summons (Bissell v. New York Central & H. R. R. R. Co., 67 Barb. 385).

The defendant and respondent also urged, that in consequence of the amendment of section 12 of chapter 40 of the Laws of 1848, by chapter 510 of the Laws of 1875, the McKillop & Sprague Co., as a corporation existing since 1872, was not required to make any report in 1878.

Prior to this amendment the statute read: “ Section 12. Every such company shall annually, within twenty days from the first of January, make a report, &c.”

Since the said amendment the statute reads: “ Section 12. Every such company shall, within twenty days from the first day of January, if a year from the time of the filing of the certificate of incorporation shall then have expired, and, if so long a time shall not have expired, then within twenty days from the first day of January in each year after the expiration of a year from the time of filing such certificate, make a report, &c.”

The effect of an amendment of a statute made by enacting that the statute " is amended so as to read as follows,” and then incorporating the changes or additions with so much of the former statute as is retained, is not that the portions of the amended statute which are merely copied without change, are to be considered as having been repealed and again re-enacted, nor that the new provisions or the changed portions should be deemed to have been the law at any time prior to the passage of the amended act. The parts which remain unchanged are to be considered as having continued the law from the time of their original enactment, and the new or changed portions to have become law only at and subsequent to the passage of the amendment (Ely v. Holton, 15 N. Y. 595).

Thus, in Knox v. Baldwin (80 N. Y. 611), the decision, aside from the reasoning, went upon the ground that a company organized in 1868, but which had not been in existence a full year on the first day of January, 1869, would not, under the law as it now reads, have been required to make a report in 1869.

This still leaves it undetermined what the requirement of the statute as to annual reports since its amendment is in respect to corporations then over a year old. This question depends wholly upon the construction to be given to the said 12th section, as amended in 1875. Upon this point the defendant contends that inasmuch as by the amendment the word “annually” was dropped, and a clear distinction was drawn between such companies as were then over a year old and such companies as were then under that age, the construction to be put upon the section as amended is, that all companies more than a year old on the first of January, 1876, should within twenty days after the said date make a report, and that thereupon they should be absolved from making any further annual report; but that all companies less than a year old on the first of January, 1876, should within twenty days after the first day of January next after their arrival at that age, and within twenty days after the first of January in every succeeding year, make a report, &c. This contention was followed by the further claim that inasmuch as the McKillop & Sprague Co. had filed its certificate April 15,1872, and the amended statute had come into operation in 1875, and the company had complied with it by making its report within twenty days from the first of January, 1876, there was no law which required it to make any more reports.

The construction contended for is so much opposed to what was, up to the year 1875, and since that time, beyond doubt the settled policy of this and other States in respect to corporations generally, and to the reason of the rule requiring reports for the benefit of the public, that in accordance with well established principles it should not be adopted, unless the legislative intent to make so radical a change clearly appears.

After much deliberation, I have been unable to discover any such intent. On the contrary, I think the legislative indent was to preserve the requirement of a report from every company, organized or to be organized under the general manufacturing act, at a fixed and regular time in every year, and that the purpose of the amendment simply was to absolve a company at the occurrence of the period fixed for that purpose from the duty of making the report, if at such time it was not yet a full year in existence. This I take to be the true interpretation and construction of the 12th section of the statute, as amended in 1875. To arrive at that conclusion it is only necessary to supply a comma after the word “ January” where it occurs for the second time. When that is done, the words “in each year” relate to the word “January” as used with reference to both classes of companies, and accord and harmony exist not only between the different parts of the section, but also between the section as a whole and the long prevailing policy of the law. To do this involves a less violent presumption than would have to be resorted to in case the word “January,” where it first occurs, were held to stand wholly unrelated, in respect to the year intended thereby, to the succeeding portions of the section.

The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellants to abide the event.

Sedgwick, Ch. J., and Russell, J., concurred.


author: By the Court.—Freedman, J.

text:
    THOMAS A. LEARNED, Appellant, v. WILLIAM E. TILLOTSON, Respondent.

      Special vei'dict—right of court to disregard same.

    The Code of Civil Procedure has not changed the rule that the office of a special verdict in equity is to inform, the conscience of the court, and that on the final hearing it may be disregarded.
    Before Freedman and Russell, JJ.

      Decided May 1, 1882.
    Appeal from judgment dismissing complaint after trial by the court without a jury.

      Stickney & Shepard, attorneys, and Albert Stickney, of counsel, for appellant,urged:
    Under the new Code, the court had not the power to disregard the verdict of the jury. There were no provisions of the old Code as to moving for anew trial upon the verdict of a jury on special issues in an equity case ; the practice was regulated by rules of court. The provisions of the new Code can only be interpreted to mean that when a motion for a new trial has been made and denied, and no appeal has been taken from the order denying a new trial, the verdict controls, and cannot be disregarded by the court. Especially is this so when the motion for a new trial is again made (as in the present case) at the trial before the court, and is again denied. The plaintiff, when the court had, on the trial at the equity term, denied the motion, had the right to assume that the verdict was to staqd. The governing section of the Code is section 1003. That section shows clearly the intention to be that the verdict is conclusive, unless it is set aside on motion for that purpose made on the minutes, or on a case. The last sentence of the section uses the words: “Where the judge who presided at the trial neither entertains a motion for a new trial nor directs exceptions to be heard at the general term, a motion for a new trial can be made only at the term where the motion for final judgment is made, or the remaining issues of fact are tried, as the case requires.” Those words, taken in connection with the other section, mean, we submit, that the verdict is conclusive as to the issues it covers, unless regularly set aside.

      Root & Martin, attorneys, and Joseph H. Choate, of counsel, for respondent.
   By the Court.—Freedman, J.

This action was brought for an accounting. Although an issue had been fried by a jury and a verdict rendered in favor of the plaintiff, on the question of the existence of the alleged agreement, the plaintiff saw fit not to rely exclusively upon the verdict at the final hearing. He again called and examined witnesses, and no doubt made the best case he could, and, in addition, at the close of his case he offered the verdict and the evidence relating to all the proceedings upon the trial of the special issue. The court, at special term, upon the whole case, reached a conclusion at variance with the finding of the jury, and upon full consideration I think justly so. Nor can the power of the court in this respect be questioned. The Code of Civil Procedure has made no change in the long established rule that the office of a special verdict in an equity case is simply to inform the conscience of the court, and that the court on the final hearing is not precluded from rejecting it and finding the fact for itself. The merits have been so fully discussed in the course of the elaborate opinion delivered by the learned chief judge at special term, that nothing of importance remains to be added. All the exceptions being untenable, the judgment should be affirmed, with costs.

Russell, J., concurred.