text:
    JOHN VELLUM, Respondent, v. CHARLES DEMERLE, Appellant, Impleaded with Others, Defendants.

      Estoppel — representations as to title — effect, as against an after-acquired title — available to the assignee of the party to whom, they are made — facts constituting an estoppel not alleged, in the complaint — amendment.

    In 1879 Charles Demerle owned an interest in certain premises, which had been conveyed, in 1874, to himself and Mary, his wife by a deed which contained no statements as to whether Demerle and his wife took the title as joint tenants, tenants in common or tenants by the entirety, and on that day conveyed them to Jacob Wolfe, who reconveyed the premises to Mary Demerle, the wife.
    In 1889 Charles Demerle, desiring to purchase a threshing machine from one James Read, represented to Read that his wife, Mary Demerle, owned the premises and offered to give her note for the purchase-price of the machine secured by her mortgage upon the premises, given as collateral thereto.
    In reliance upon this statement Read made the sale, and subsequently, in accordance with a previous understanding between himself and Demerle, assigned the note and mortgage given to secure the purchase-price of the machine to John Yellum.
    In an action brought by Yellum to foreclose the mortgage Charles Demerle answered, alleging that his wife Mary had died in 1890, and that the premises were held by them during her life as tenants by the entirety; that, upon her death, he became the owner of the fee thereof, and that the mortgage (in which he did not join) did not cover his title'to the premises.

      Held, that whatever might be the effect of the deeds from Demerle to Wolfe, and from Wolfe to Mary E. Demerle, the position taken by Charles Demerle was untenable.
    That, by reason of his representations to Read, he was estopped to question the validity of the mortgage.
    That, although the representations were made to Read and not to Yellum, the latter took the securities with all the equities which existed in favor of Read.
    The complaint did not set forth the facts constituting the estoppel, nor did it appear that the plaintiff knew of the facts when the complaint was drawn.

      Reid, that the plaintiff was entitled to meet the allegations of the answer by proving the facts out of which the estoppel arose.
    That the complaint, if necessary, could be amended so as to set forth the facts. That an amendment, upon the evidence presented in this case, was unnecessary.
    Appeal by the defendant Charles Demerle from a judgment of the Erie County Court, entered in the clerk’s office of Erie county on the 18th day of February, 1892, granting, after a trial in the Erie County Court before the court, a judgment of foreclosure and sale directing that certain mortgaged premises be sold, and that the proceeds be applied to tbe payment of a certain note, to wbicli tbe mortgage in question was collateral.

      EUJm R. Sherman, for the appellant.

      William W. Hammond, for -the respondent.
   Lewis, J.:

This is an action to foreclose a mortgage upon real estate. The premises mortgaged were conveyed to the defendant, Charles Demerle and 'Mary E. Demerle, in 1874. They were, at the time of the conveyance to them, husband and wife, but no mention of that fact was made in the deed to them. On the 4th day of June, 1879, Mr. Demerle executed and delivered to Jacob Wolfe a quitclaim deed of the premises in question, and on the same day Wolfe and his wife conveyed the premises by a quit-claim deed to Mary E. Demerle. These deeds were duly recorded. The record title to the mortgaged premises remained in Mrs. Demerle until the time of her death, which occurred on the 6th day of March, 1890. Mrs. Demerle left her surviving her husband, Charles Demerle, and several children of the marriage. On the 15th day of August, 1889, the defendant, Charles Demerle, requested Mr. James Read to sell him a threshing machine at the price of $950 on credit. And to induce Mr. Read to sell him the machine on credit, Demerle stated and represented to Mr. Read that his, Demerle’s, wife was the owner of the premises mentioned ; that he had quit-claimed his interest in the land to his wife, and that she owned the farm. And he promised and agreed that, if Read would sell him the machine on credit, Mrs. Demerle would give her note for the purchase-price, and would secure its payment by a mortgage upon the farm. Read replied to Demerle that he was not in financial condition to hold the note and mortgage himself, but that he would look around for a day or two, and if he could find some one to take the securities he would sell Mr. Demerle the machine. Mr. Read found that the plaintiff would take the securities, and believing Demerle’s representations to be true, and relying upon them, sold and delivered the machine to Mr. Demerle, and Mrs. Demerle gave Mr. Read the note and mortgage in question in payment of the machine. And on the twenty-fifth day of November following Read assigned and transferred the note and mortgage to the plaintiff.

Tlie note falling clue and not being paid in full, tliis action was instituted to foreclose the mortgage. Demerle interposed an answer: “ That at the time the execution by Mary E. Demerle of the mortgage described in the complaint herein, this defendant and said Mary E. Demerle owned the 'premises described in said mortgage as tenants by the entirety; that by the death of said Mary E. Demerle, wife of this defendant, on or ahout the 4th day of March, 1890, this defendant became the owner in fee of said premises, and this defendant is now the owner in fee of said premises; that this defendant did not join in the execution of said mortgage, and that said mortgage is not a lien upon said premises.” The action came on for trial at a term of the Erie County Court and judgment was directed for the plaintiff for the foreclosure of the mortgage and the sale of the premises,- and an appeal was taken therefrom to this court.

It is the contention of the defendant Charles Demerle that as he and his wife held the title to the premises, as tenants by the entirety, that he could not, while his wife was living, convey his interest in the property, and that the deed to Wolfe did not convey any interest in the land thus held by himself and wife, and that upon the death of his wife he became seized of the entire estate free from the lien and incumbrance of the mortgage. Whether this contention be sound or not it is not necessary to consider here, for this judgment, in our opinion, should be affirmed upon the ground that the defendant is estopped from questioning the lien of the mortgage. After making the representations he did to Read, and thereby inducing him to part with his property, he should be held to be estopped from questioning the validity of the mortgage. It would be a miscarriage, certainly, of justice if he could be allowed, after inducing Read to part with his property upon such representations, to set up the invalidity of his wife’s title. The owner of the legal title, who acquiesces in the sale of the land by another, and advises and encourages the sale, will be estopped from setting up his title against the purchaser. (Storrs v. Barker, 6 Johns. Ch., 166; Wood v. Seeley, 32 N.Y., 105.) A party who stands by in silence and permits another to act upon an erroneous state of facts will not be permitted thereafter to set up the truth to the injury of such person. (Erie County Savings Bank v. Roop, 48 N. Y., 292; Lee v. Porter, 5 Johns. Ch., 268.)

'All the knowledge Read had concerning Mrs. Demerle’s title, so far as the record before ns shows, was derived from his conversation with Demerle heretofore stated. He did not know whether Demerle and his wife held the title to the farm as tenants in common, joint tenants or as tenants by the entirety. Notwithstanding Mr. and Mrs. Demerle sustained the relation of husband and wife to each other, they could have held the title either as joint tenants, tenants in common or tenants by the entirety, depending upon the form of the conveyance under which they got the title. Demerle said to Mr. Read that he had conveyed to his wife, and that she owned the farm. Read was justified in assuming that their title was such that Demerle could convey, as he represented he had, to his wife. Ignorance of the law will not prevent the application of the rule of equitable estoppel. (Felton v. Nelson, 27 Barb., 595.)

It is suggested by the appellant that the representations were made to Mr. Read, and not to the plaintiff, and that the plaintiff, who afterwards took an assignment of the mortgage, cannot avail himself of the doctrine of estoppel. Read, as we have seen, stated to the defendant that he was not able to hold the securities and give the credit, but if he could find some one who would he would make the trade. And that he did find one who would take the securities, and that he thereafter assigned them to the plaintiff. The plaintiff, we think, took the securities with all the equities that Read had in them.

"While the complaint, as is contended by the appellant, fails to state the facts out of which the estoppel arises, it does not appear that the plaintiff was aware of the facts at the time the complaint was drawn. The facts are stated in the defendant’s answer. The plaintiff was at liberty to meet these allegations in the defendant’s answer by proving the facts out of which the estoppel arose, and, if necessary, the complaint can be amended to meet the facts. But we do not deem it necessary. Plaintiff was entitled to the relief demanded in his complaint on the evidence presented, and the judgment appealed from should be affirmed, with costs.

Dwight, P. J., and Maoomber, J., concurred.

Judgment of the County Court of Erie county appealed from affirmed, with costs.


source: Caselaw Access Project

author: O’Brien, J.:

license: Public Domain

text:
    JULIANNA LUSTIG, Administratrix of BERNARD LUSTIG, Deceased, Respondent, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Appellant.

      Amendment setting up a foreign statute, in order to admit proof of it in a purely statutory action — 'measure cf damages in an action for negligent hilling — cross-examination— bias of a hostile witness.

    Bernard Lustig, having been killed in New Jersey by the negligence, as alleged, of a railroad corporation, his administratrix brought an action to recover the damages resulting from his death; at which time he had a wife and nine children.
    After both sides had rested the defendant moved to dismiss the complaint upon the ground that the evidence showed that the death took place in New Jersey, and that there was no allegation in the complaint, nor proof upon the trial, of any statute in that State authorizing a recovery of damages under the circumstances set forth in the complaint; and that as no right of recovery existed at common law no cause of action had been made out. The court re-opened the case and allowed the plaintiff to amend her complaint and to supply this defect in her evidence.

      Held, that no substantial right of the defendant was affected by the amendment, and that, within section 723 of the Code, of Civil Procedure, it was properly allowed.
    That it did not introduce a new cause of action.
    That, in any event, such an action was purely statutory, and it was incorrect to say that the effect of the amendment was to change a common-law action into one based upon a statute.
    The jury rendered a verdict of $1,400, although there was no proof made by the plaintiff of direct pecuniary loss.

      Held, that the verdict should be allowed to stand.

      That, in such cases, the basis of damages must generally be found in proof of the character, station and capacity of the deceased, and of the age, sex, circumstances and condition of his next of kin.
    While a hostile witness may, upon cross-examination, be questioned as to his bias and motive, the extent of such an examination, in the absence of an abuse of discretion, must rest with the trial court.
    The defendant’s engineer, upon cross-examination, was asked whether his train, was late upon the day of the accident, in order to see whether he would adhere to what, it was claimed, he had stated at the coroner’s inquest.

      Held, that the question was competent upon the question of credibility and intent-
    Appeal by tbe defendant, tbe New York, Lake Erie and Western Railroad Company, from a judgment of tbe Supreme Court, entered in tbe office of tbe clerk of tbe city and county of New York on tbe 27th day of February, 1890, upon a verdict for tbe plaintiff for $1,400; and from an order of said court, entered in tbe office of the said clerk on tbe 28th day of February, 1890, denying a motion for a new trial after a trial at tbe New York Circuit before tbe court and a jury.

      Charles Steele, for tbe appellant.

      Adolph Cohen, for tbe respondent.
   O’Brien, J.:

Tbe action is brought to recover damages for tbe death of plaintiff’s intestate through the defendant’s negligence. Tbe defense was. that tbe defendant was not negligent, and that there was contributory negligence on tbe part of plaintiff’s intestate. .

It appears that on September 16,1887, Bernard Lustigwas struck or run over by one of tbe defendant’s trains at a flag station at tbe Clifton race track in tbe State of New Jersey, and from the effect of such injuries lie' died, leaving tbe plaintiff, bis widow, and nine children. On tbe day mentioned tbe deceased left Jersey City, with other passengers, to go to tbe race track at Clifton; and though no dispute arises, but that after the ti’ain had stojiped at this flag station tbe deceased received tbe injuries ■which caused bis death, as to the particular manner in which he was injured there is a conflict between tbe testimony offered by tbe plaintiff and that presented by tbe defendant. Clifton was not a regular station with suitable platforms, but was a place where tbe trains stopped upon a flag signal. It is conceded that in order to have tbe passengers ■going from Jersey City to Clifton reach the race course it was necessary for them to cross over both the railroad tracks, assuming 'that they alighted on the proper side of the train.

Upon the part of plaintiff, testimony was offered to show that when the train stopped the passengers were invited by the conductor ■to get off, not on the side where a platform was, but on the side contiguous to the other track, and that the pass'engers thus crossed the intervening opposite track in the direction of the race course; ■that after certain of the passengers had alighted, the intestate, who was among the last of those to leave the train, while engaged in crossing the track was struck by an express train and killed. Other witnesses testified that the deceased, after getting off on the platform-.side of the train, proceeded around to the rear, and it was while ■then crossing the track that he was struck by the express train. Again we have the version, which is the one the defendant insists was established by a preponderance of evidence, that the accident was due to the fact that after the intestate had alighted from the ■train, and while it was in the act of proceeding towards Paterson, the intestate again boarded the train and crossed over the platform of the car, and thus got on the other opposite track, where, in •attempting to cross, he was struck.

We are not able to reconcile the testimony, nor is it our province. That was left to the jury, and, undoubtedly, they were inclined, after hearing the testimony of the witnesses,,to adopt the plaintiff’s version that the accident was caused by the conductor’s invitation to the passengers to alight on the side contiguous to the opposite track of the railroad, and that for that purpose he furnished a stool upon which the passengers could step in alighting from the car. There can be no doubt that if this version is true, it presented fairly a question for the jury as to whether or not the death was not due •solely to the defendant’s negligence. We do not think, however, after an examination of the record-, that we are called upon, any more than was the trial judge, to dispose of the question thus presented upon conflicting testimony by adopting the view contended for by appellant here and hold that the verdict was against the weight of evidence. In addition, however, to this, certain other ■questions are pressed upon our attention which it is necessary to •examine.

After the testimony was all in and both sides had rested, the defendant, among other grounds, urged, as a reason for dismissing the complaint, that it now appeal’s that this death took place in the State of New Jersey, and there is neither allegation nor proof of any statute in that State authorizing a recovery. There being no right, to recover damages for death at common law, the plaintiff, therefore,, has failed to make out a cause of action.” Plaintiff’s counsel thereupon asked leave to re-open the case for the purpose of amending the complaint and alleging and introducing in evidence the statute-of New Jersey authorizing a recovery for death in that State. The motion was granted, the complaint accordingly amended and evidence was offered of the New Jersey statute. This was all done-over the defendant’s objection and exception, and the point raised upon this appeal is that it was error thus to allow the amendment, of the complaint.

.Section 723 of the Code, so far as applicable to the question here,, provides: The court may upon the trial * * * in furtherance-of justice * * * amend any * * * pleading * * * by inserting an allegation material to the case. * * * And in every stage of the action the court must disregard an error or defect in the pleadings or other proceedings which does not affect the substantial rights of the adverse party.”

We do not see that any substantial right of the defendant was-affected by this amendment. There was no claim of surprise made upon the trial; and from the manner in which the grounds of dismissal were formulated it is quite evident that the defendant was aware of the omission long before making the motion and waited for the most favorable moment to give force and effect to this objection. Under the circumstances, therefore, it was a proper exercise of the power vested in the court — assuming that the court had the power. It is insisted, however, that the court had no power to allow the amendment as made, because, as claimed, it virtually permitted the'plaintiff to set up a new cause of action. In that connection we are referred by appellant to a number of authorities.

The latest authority, Bockes v. Lansing (74 N. Y., 437), clearly points out what kind of amendments the court has no power to-allow. In that case it was held, upon a trial before a referee, that the latter had no power to amend a complaint on the trial so as to change the cause of action from one for equitable relief to one in ejectment. In this case the appellant insists that the amendment, in effect, allowed a change from a common-law action to an action upon a statute. We think, however, .the appellant is mistaken in this view, because, as there could be no action at common law for negligence resulting in death, and as the only cause of action is one created by statute, it is evident that the plaintiff’s cause of action was an action upon a statute. Had it been brought in respect to a cause of action arising in this State,'it would have been unnecessary to plead the statute. The omission of plaintiff consisted merely in overlooking the fact that where an action is predicated upon a foreign statute, such statute must be pleaded, and upon the trial must be proven. This, therefore, was an action upon a statute; but the plaintiff omitted a material allegation, namely, the statute'itself; and the amendment allowed resulted, not in changing the cause of action, but, in the language of the Code, in inserting “ an allegation material to the case.”

It must be conceded that the power to amend pleadings upon the trial is limited, and that no new cause of action can be introduced. In determining, however, whether a new cause of action is introduced or not, the test, as given in Davis, respondent, against this very defendant (110 N. Y., 616) is in point: “A fair test to determine as to whether a proposed amendment of a complaint is allowable under the provision of the Code of Civil Procedure (§ 723) in reference to such amendments, or whether it sets up a new cause of action, is, would a recovery on the original complaint be a bar to a recovery under the amended complaint ? ” Applying that test here, we think it will be seen that the court did not exceed its power in allowing the amendment to which exception was taken.

The next exception relates to the alleged error in allowing testimony with reference to the step which it was said the conductor placed for the passengers to alight on, upon the ground that such testimony was incompetent, unless it was shown that plaintiff’s intestate saw the step and was misled by it into getting off on the wrong side of the train. We do not think there is any force in this objection. Taking the testimony of the witness being thus examined as true, it would show that the deceased got off on the very side of the car that the step was said to have been placed, in such a way as necessarily to have seen it; and it was perfectly competent to show, as part of the history of the case, what provision was made for the witness, the intestate and others to get off the train.

Appellant’s fourth point is that the damages awarded by the jury are excessive, because there was no evidence presented of pecuniary loss upon which a verdict could be based, and that if the complaint was not dismissed upon this ground the request that only nominal damages should be allowéd should have been charged by the court. We think that this contention is disposed of by the ease of Lockwood against this same defendant (98 N. Y., 523). As therein said: “ The courts have found it impossible to lay down any definite guide for the jury in estimating.damages under the act in question, and we will not attempt it now. * * * Ln. but few cases arising under this act is the plaintiff able to show direct specific pecuniary loss suffered by the next of kin from the death, and generally the basis for the allowance of damages has to be found in proof of the character, quality, capacity and condition of the deceased, and in the age, sex, circumstances and condition of the next of kin. The proof may be unsatisfactory and the damages may be quite uncertain and contingent. Yet the jurors-in each case must take the elements thus furnished and make the best estimate of damages they can.”

The fifth point relates to the refusal of the court to charge, as requested by the defendant, that if the jury believed that the witness Weiss had any interest in the recovery in the action they were entitled to consider that fact as affecting his credibility.

The court was entirely justified in refusing any such request, because there was no evidence in the case upon which such a request could have been based. It is true that the defendant attempted to have certain evidence introduced upon cross-examination of the witness Weiss, for the purpose of showing bias or interest, which testimony was excluded. Whatever is to be said regarding the exclusion of such evidence, it is clear that after it was excluded and there was no evidence in the case to support a request such as was made to the court, it was perfectly proper to refuse the request.

This leaves us, however, to consider whether it was error to refuse to permit further cross-examination of Weiss for the purpose of showing his bias and motive. It may be stated, as a general rule, that the interest or bias of a witness may always be shown. But the extent to which, for the purpose of- showing such bias or interest, the court will permit examinations as to collateral matters is entirely within the discretion of the court, and unless such discretion is abused it will not be interfered with upon appeal. Here the counsel was permitted to ask the witpess as' to whether he had a personal interest in the action, to which he answered he had not; that he had none whatever; and in response to the question as to whether he had’nt advanced the money to pay the man’s funeral expenses, he testified that he was obliged to, because the man worked for him. The questions objected to and objection sustained, to which defendant took exception, were: Q. Don’t you expect to get paid that back if you get a recovery in this action?” And, “Q. Have you been paid that money, Mr. Weiss ? ”

With respect to the first question,-his expectations were a matter of perfect indifference to everybody; and the same may also be said as to whether he was paid back the money or not. Had the questions beén directed to eliciting from the witness the fact as to whether or not there was any agreement that out of the recovery he was to receive what he had paid for funeral expenses, or in some other way to show that he was interested in the event of the action, another question would arise. We think, however, that the court, after allowing the principal questions as to whether he had an interest or not to be. answered, properly limited the further examination in regard to the expectations of the witness in the event of a recovery by the plaintiff, and that such limitation was not error for which a judgment should be reversed.

The appellant finally insists that it was error to allow the question asked on cross-examination of the defendant’s engineer, whether on -that day his train was late. It will be seen, upon reading the testimony, that it was asked of him for the purpose of showing whether, upon the trial, he would adhere to what it is claimed by plaintiff’s counsel he had testified to at the coroner’s inquest as to his train being late on the day of the accident. Upon the question of credibility and the interest of the -witness considerable latitude is always permitted on cross-examination-; and in this case, as the question was directed to a fact having .some bearing indirectly upon the necessity for greater or less speed, it is doubted if it had been asked even for that purpose ujion cross-examination whether it would have been error. However, it is unnecessary to decide that question, it being sufficient for this appeal to say that in the connection in which the question was asked it was not error.

¥e think, therefore, that the judgment and order appealed from should be affirmed, with costs.

Patterson, J., concurred in result; Yan Brunt, P. J., dissented.

Judgment and order affirmed, with costs.


author: Patterson, J.:

text:
    ADRIAN BONNET, Plaintiff, v. ALBERT LACHMAN and Others, Defendants.

      Evidence — effect, on the rights of a party denying the validity of a judgment, of the introduction by him of the judgment-roll.

    The complaint, in an action for the conversion of personal property, alleged, among other things, that the property was taken by the defendants under a judgment, void because there had been no service of the summons in the action in which it was recovered.
    The defendants set up the judgment, and justified under it.
    Upon the trial of the action the plaintiff offered the judgment-roll in evidence, expressly stating that it was offered for the purpose of showing the judgment to> be void, and gave evidence tending to show that the summons was never served.
    The court dismissed the complaint upon the ground that no cause of action had been established, and upon the further ground that the plaintiff was precluded, by offering the judgment-roll in evidence, from attacking it.
    Upon an appeal by the plaintiff from a judgment dismissing the complaint:

      Held, that such dismissal was improper.
    That, by putting the judgment-roll in evidence in the manner stated, the plaintiff had not lost his right to show a want of jurisdiction in the court which rendered the judgment.
    That as there had been no service of the summons, and the judgment was concededly void, the position of the plaintiff was in no respect different from which it would have been had the judgment been offered in evidence by the defendant, and the plaintiff, as he would have had a right to do, had then proceeded to establish the facts which made it void.
    Exceptions of the plaintiff Adrian Bonnet, taken upon a trial had at the New York Circuit before the court and a jury at which hi& complaint was dismissed.

      Upon tlie trial the defendant gave no proof of the service of the summons, in the action in -which an alleged judgment, upon which he rested his defense, ,was recovered, beyond the affidavit of service by a person who, it was claimed, made the service of the summons, in an action in the City Court of. New York, and who had since died. The defendant gave evidence by two witnesses tending to show that no service was made.

      E. T. Bartlett, for the plaintiff.

      Herman Frank, for the defendants.
   Patterson, J.:

On the trial of this cause the complaint was dismissed and the «xceptions were ordered to be heard in the first instance at the General Term. The action was for the conversion of certain personal property, the complaint containing the proper allegations, but also setting forth that the taking and conversion of the property by the defendants was under an execution issued on a pretended judgment in favor of the defendants and against the plaintiff, but which judgment was absolutely void, and under proceedings taken by a receiver in supplementary proceedings, appointed on the examination of a third party who had possession as bailee of part of the converted property, such receiver having been appointed at the instance of the defendants. It was also alleged in the complaint that the plaintiff never was served with a summons in the action in which the pretended judgment was recovered. The defendants’ answer sets up the judgment ; and the taking and disposal of the -property under the execution issued thereon, and by the receiver are justified as .having been done by due and regular process of law. On the trial the jfiaintiff proved his ownership of the property and offered in evidence a certain judgment-roll filed in the office of the clerk of the City Court of New York (being the judgment in question), and the record states that, while offering it, counsel Ck expressly insisting that it is a void judgment and false affidavit of service and put in evidence as part of the plaintiff’s case for the purpose of attacking said judgment and proving it to be void, and attacking said affidavit of service and proving it to be false.” Thereupon, and without objection, it was i-ead. "Witnesses were then called and examined, and, without objection, they testified to facts tending to show, and which, uncontradieted, did show, that no legal service of a summons ever had been made on plaintiff in the action in the City Court, the judgment in which was entered by default.

At the close of the plaintiff’s proofs the motion to dismiss was made on three grounds: First. That no cause of action had been established. Second. That the plaintiff is precluded by the judgment-roll which he introduced in evidence, and the same cannot be attacked in the manner in which the plaintiff seeks to attack it here; and, third, that the proof attacking the service was insufficient to overcome the evidence of service filed with the judgment-roll. The nonsuit was granted on the first and second grounds, the third being held untenable.

As the case stood it was fully shown, prima facie, that the judgment was void. The City Court had not obtained jurisdiction over the person of the defendant in that action. It was shown affirmatively that no service was made. That proof came into the case without objection, and the validity of the judgment was directly in issue. As this cause was tried it was immaterial by whom the judgment record was introduced. The undisputed testimony showed it to be a void judgment. It is undoubtedly true that, as a general principle •of law, a judgment, regular in form and purporting on its face to have been rendered in a court having jurisdiction of the person of the defendant and of the subject-matter of the action, cannot be attacked collaterally, but it is also true that the want of jurisdiction may always be set up against a domestic judgment sought to be enforced, or when any benefit is claimed under it, and the bare recital of jurisdictional facts in the record is not conclusive, but may be disproved by extrinsic evidence. (Ferguson v. Crawford, 70 N. Y., 253.) The' question in this case is not one of pleading. Had the plaintiff simply alleged the ordinary facts, declaring in trover, and limited his proof to those facts, his prima facie case would have been made out. The complaint neither lost nor gained anything by setting forth the pretended facts upon which the defendants relied for justification. Their answer sets up the same facts, and they stood upon them and thereby claimed the advantage or benefit of that judgment which in the proofs is shown to have been void. Had the judgment record not been introduced by the plaintiff but by the defendants, there can be no doubt the former would have been entitled to attack it, and show the facts rendering it a void judgment. W ith all that testimony before the court and in the record without objection, it is quite immaterial by -whom the record was offered. It was enough that the very judgment relied on by the defendants, and the benefit of which they sought to obtain as a defense to an action for conversion of property, was shown by nncontradicted testimony to be void. We think, therefore, the exceptions should be sustained and a new trial ordered, with costs to the plaintiff to abide tbe event.

Yan Brunt, B. J., and O’Brien, J., concurred.

Exceptions sustained and new trial ordered, with costs to the plaintiff to abide event.


text:
    JOHN H. PLATT, Respondent, v. JOHN P. KOHLER, Appellant.

      Broker — his commissions — not earned, when no enforceable agreement is made.

    In an action brought by John H. Platt, areal estate broker, against John P. Kohler, to recover commissions alleged to have been earned by the former in selling certain real estate belonging to Kohler, it appeared that the basis of the deal was that Kohler should convey property upon Staten Island, and also pay $1,750 cash, to one Morgenthaler, and should receive from him in return a house on Lenox avenue, in New York city, subject to a mortgage thereon; that Morgenthaler had also employed a broker, named John O. Hoyt, who, after some negotiations, drew up a contract which contained terms different from those mentioned to Kohler.
    Morgenthaler signed this contract, which Kohler also subsequently signed, hut with the understanding that it was not to be binding upon him until his attorney, Mr. Yan Name, had examined it. Kohler also wrote a letter, in which he said that the terms of the bargain were correctly stated in the contract, but it appeared that he then supposed he was bound to pay $1,750 cash, when, in fact, the contract demanded $3,350; and when Mr. Yan Name discovered that the terms of the written contract were more onerous than those of the preliminary verbal agreement Kohler discontinued all further negotiations with Morgenthaler.
    On appeal from a judgment in favor of the plaintiff;

      Held, that as no enforceable agreement was ever made between Kohler and Morgenthaler, and as Kohler was not at fault, Platt had not earned any commissions.
    That the present case was not one in which a principal had changed his mind and refused to carry out a contract made by the broker upon terms authorized by the principal, hut was a case where no benefit had resulted to the principal from the broker’s efforts, because Kohler could not compel Morgenthaler to perform, nor recover of him damages for non-performance.

      Appeal by tlie defendant John P. Kohler from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 10th day of March, 1892, upon a recovery in favor of the plaintiff for- $200 and interest, after a trial before a referee.

      G. D. Van Name, for the appellant.

      Samuel A. Noyes, for the respondent.
   Patterson, J.:

The plaintiff sued to recover compensation for services alleged to have been rendered by him as a broker, in negotiating an exchange of property situated on Staten Island and belonging to the plaintiff, for real estate in the city of New York owned by one Morgenthaler. The allegations of employment of the plaintiff by the defendant, of the rendition of service and agreement to pay therefor are denied by the answer. The cause was referred ; the referee reported in favor of the plaintiff and from the judgment entered on the report the defendant appeals.

The employment was fully proven, as was also the amount of compensation to be paid the plaintiff if he performed the service for which he was so employed, but the evidence does not show that the plaintiff has earned his commission and does not justify the referee’s findings in that regard.

In the transaction of the proposed exchange the plaintiff dealt with Messrs. Hoyt, the brokers of Morgenthaler. The basis of the dealing was that the defendant should, in addition to conveying his Staten Island property, pay $1,750 in money and take a house on Lenox avenue, subject to a mortgage of $18,000. John O. Hoyt testified that the plaintiff and defendant came together to his office in the early part of July, 1891, and the plaintiff spoke of having, as broker, a place of the defendant on Staten Island, to which Hoyt replied he had a house on Lenox avenue he would trade. He states that afterwards his principal (Morgenthaler) agreed to accept $1,750 as the cash consideration to be paid, and on the twenty-first of July the consent of the defendant to that was given, the latter stating he would give that amount in money and the Staten Island property and take the Lenox avenue house, with the mortgage on it. Thus far the parties were in accord, and it is clear no other terms were ever contemplated by the defendant. The disagreement or misunderstanding results from wfiat followed. Hoyt drew a written contract containing other terms than those mentioned. Morgenthaler signed it. On the twenty-second of July Kohler and the plaintiff called at Hoyt’s office. Conversation was had respecting the contract. It was then signed by Kohler, but on the express understanding that it was not to be considered as binding the defendant nor as a delivered instrument until Mr. Yan Name, the defendant’s attorney, could examine it the following day. The plaintiff, as well as Hoyt, testifies substantially to that. It is also testified to that the defendant criticised the contract as drawn, but limited his declared objection to the shortness of time allowed for the completion of the transaction. It is also true that the defendant signed a letter, in which he states that the terms of the trade are correctly set forth in the contract, but we are convinced that he is right in further stating that he did not observe that he was required by that contract to pay $2,250 instead of $1,J50, and it is fully admitted by Hoyt that the contract was incorrectly drawn, for he says that he subsequently offered to have the $500 applied on account of the $1,J50. The defendant is not bound by that letter, and to the plaintiff’s own knowledge the contract was not to be operative until Yan Name examined and approved it. When it was discovered by the defendant’s attorney that the contract contained different ancl more onerous terms than those verbally agreed upon, the défendant had the right to refuse to be bonud by it, and he did so.

So far as now appears, the negotiations of the plaintiff with Morgenthaler virtually terminated at that point; and as no enforceable agreement was ever made between Morgenthaler and the defendant, and the latter was not at fault, the plaintiff is not entitled to commissions. The brokers and the defendant had verbally agreed, but Morgenthaler had not become bound. The plaintiff’s right to payment depended upon his procuring a person ready and willing to contract in such a way as to be legally bound to perforin. His service was-incomplete until that was done. Nothing was accomplished of any benefit to the defendant, who could not compel Morgenthaler to perform nor recover damages for non-performance, and nothing of subsequent occurrence changed the relations between the parties. On the facts and circumstances disclosed by the proof the referee erred in the conclusion at which he arrived. The case differs essentially from Barnard v. Monnot (3 Keyes, 203) and like cases cited by the referee to sustain his decision. Where a principal refuses to carry out a transaction made by his broker on terms duly authorized, the broker may recover, for he is not to be deprived of his compensation because the principal retreats or changes his mind. The broker has then done all he can, but where the principal stands ready to perform; to enter into a contract on conditions he has authorized, and the party produced by the broker refuses to conform thereto by entering into a binding obligation, the broker has failed to effect the purpose of his employment; he has not found a person ready and willing to take on the agreed terms, and his principal is not liable for commissions

The judgment must be reversed and a new trial ordered before another referee to be appointed by this court, with costs to the appellant to abide the event.

Yan Brunt, P. J , and O’Brien, J., concurred.

Judgment reversed and new trial ordered before another referee to be appointed by this court with costs to the appellant to abide the event.


author: Per Curiam :

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. COMMISSIONERS OF CHARITIES AND CORRECTION, Respondent, v. GEORGE I. GLAZE, Appellant.

      Crimes — disorderly persons — upon a conviction before a police justice in New York city an appeal lies directly to the Court of General Sessions in the city of New York.

    It is provided by section 749 of the Code of Criminal Procedure, as amended by chapter ?72 of the Laws of 1884, that “a judgment, upon conviction rendered by a Court of Special Sessions, police court, police magistrate or justice of the peace, * * * may be reviewed by the Court of Sessions of the county upon an appeal as prescribed by this title, and not otherwise.”
    Section 38 of that Code is as follows: " The Courts of Sessions are: 1. The Courts of Sessions in counties other than New York. 2. The Court of General Sessions in the city and county of New York.”

      George I. Glaze was convicted of being a disorderly person by a police magistrate of tbe city of New York, and appealed from this conviction directly to tbe Court of General Sessions, in the city and county of New York, which dismissed the appeal upon the ground that the appeal should have been taken in the first instance to the Court of Special Sessions.

      Held, that, in view of the definition of " Courts of Sessions,” contained in section 88 of the Code of Criminal Procedure, the language 'of section 749, permitting an appeal to such courts, was intended to provide for a direct appeal from a conviction by a police magistrate to the Court of General Sessions in the city and county of New York.
    Appeal by the defendant George I. Glaze from an order of the Hon. James Fitzgerald, one of the judges of the Court of General Sessions in and for the city and county of New York, entered in the office of the clerk of the Court <of General Sessions on the 17th day of May, 1892, dismissing an appeal from a judgment of a police justice of the city of New York convicting the defendant of being a disorderly person.
    The appeal was not dismissed upon the merits, but solely upon the ground that an appeal from a judgment of conviction, rendered by a police justice of the city of New York, must be taken in the first instance to the Court of Special Sessions of said city.

      W. H. Arnoiox, for the appellant.

      II. J. Apjpel, Jr., for the respondent.
   Per Curiam :

It seems to us apparent by the amendments made to sections 515 and 749 of the Code of Criminal Procedure (which is the latest expression of the legislature regulating the practice in criminal cases, and special proceedings of a criminal nature), that it was the intention to give a right of appeal from the lower criminal courts directly to the Court of Sessions of the county. The learned judge below, in his criticism upon the language of section 749 of the Code of Criminal Procedure, that it does not refer to the Court of General Sessions of the city and county of New York, evidently overlooked section 38 of that Code, which defines the Courts of Sessions. That section is as follows: “ The Courts of Sessions are: 1. The Courts of Sessions in counties other than New York. 2. The Court of General Sessions in the city and county of New York.”

Therefore, when in section 749 the term “the Court of Sessions of the county ” is used, it evidently refers to the Court of Sessions as defined in section 38, which includes the Court of General Sessions in the city and county of New York.

It would, therefore, seem that it was the intention of the legislature in these proceedings to adopt a uniform practice by clear and explicit terms; and the right to appeal from the conviction of a police magistrate to the Court of General Sessions in the county of New York, seems to be expressly given. The section reads: “A judgment, upon conviction rendered by a Court of Special Sessions, Police Court, police magistrate * * * may be reviewed by the Court of Sessions of the county, upon an appeal as prescribed by this title, and not otherwise; ” language in respect to which there does not seem to be room for any other interpretation than that ado]3ted.

We are of opinion, therefore, that the judgment appealed from should be reversed and the record remitted to the Court of General Sessions for further action.

Present — Yan Brunt, P. J., O’Brien and Patterson, JJ.

Judgment reversed and record remitted to the Court of General Sessions for further action.


text:
    MARY ANN ROBINSON, Respondent, v. ROBERT GOVERS, Individually, and as Sole Executor and Trustee under the Will of ANTHONY ROBINSON and Others, Appellants, Impleaded with Others, Dependants.

      Abatement — action for dower — death of the widow before the conjvi'mation of the report of a referee — its effect.

    Mary Ann Robinson, who brought an action to recover her dower interest in the estate of her deceased husband, Anthony Robinson, soon after bringing the action filed in the county clerk’s office consents to accept certain sums in gross in satisfaction of such dower. The issues, raised in the action by an answer interposed by an infant, were tried and resulted in a verdict that Mrs. Robinson was entitled to her dower.
    She thereupon moved for an interlocutory judgment and for a reference to determine whether it could be admeasured, and, in case it could not be, asked that a sale be had. At the same time the defendants moved for an order permitting them to pay her a gross sum in. case she should be entitled to judgment.
    The court granted an order of reference to ascertain the value of the dower interest, under which a report was made by the referee, and on the 18th day of February, 1892, this report was confirmed with certain modifications, a motion made to dismiss the complaint was denied and leave was granted the defendants to pay the widow a gross sum. On the same day, and before this order was entered, Mary Ann Robinson died.
    Her executor, Henry Mottet, subsequently moved to continue the action, and that the gross sums be paid to him. The defendants moved that the order of February 18, 1892, be vacated upon the ground that by the death of the widow the action had abated. The court granted the executor’s motion.

      Meld, that such action was improper.
    That section 763 of the Code of Civil Procedure, providing that if a party to an action dies after a verdict, report, decision or interlocutory judgment, but before final judgment is entered, the court must enter final judgment in the name of the original parties, did not apply to the case.
    That a consideration of the previous sections of the title, aud of section 764, led to the conclusion that the sections did not relate to an action like one for the recovery of dower where the cause of action abated by the death of the widow. That, even if these sections could be held to relate to actions generally, still section 763 could relate only to a verdict, report, decision or interlocutory judgment, which determined the whole action, and which could be made effectual simply by the entry of final judgment.
    That such was not the case in an action for the recovery of dower.
    That the verdict only determined that the plaintiff was entitled to dower; that this was followed by the interlocutory judgment directing that it be determined whether a distinct parcel could be set off to the plaintiff, and, failing this, ordering a sale which must be made and confirmed before the value of the dower interest could he said to be finally determined.
    That, in this view, the action could not be said to have reached a stage where the rights of the parties had been determined.
    Appeals by the defendants, Robert Govers, individually, and as executor and trustee under the will of Anthony Robinson, deceased; George K. Griffin, "William R. Griffin, William J. Govers, Maria Govers, Jane Govers, Esther Govers and Robert G. Robinson, an infant, by J ames E. Carpenter, Ms guardian ad litem, from an order of the Supreme Court, entered in the office of tbe clerk of the city and county of New York on the 13th day of May, 1892, continuing this action in tbe name of Henry Mottet, as executor of Mary Ann Robinson, deceased, and directing that certain payments of gross sums for tbe dower interest of Mary Ann Robinson, deceased, in certain premises described in the complaint, be paid to said Mottet, as her executor; and further denying a motion of the defendants to-set aside an order of this court dated February 18, 1892.

      Orats Nathan, for the appellants.

      John B. Pi/ne, for the respondents.
   Per Curiam :

The action was brought to recover dower in certain real estate of which Anthony Robinson, the plaintiff’s husband, died seized. Shortly after the commencement of the action the plaintiff filed in the county clerk’s office consents to accept sums in gross in satisfaction of her dower. By an answer interposed by one of the defendants, Robert G. Robinson, an infant, submitting his rights to the protection of the court, all the facts alleged in the complaint were necessarily put in issue; and these, under the Code, had to be determined by the verdict of a jury. (Code, § 963.) The verdict was “ that the plaintiff is entitled to dower in the premises described in the complaint.” Thereupon the plaintiff moved for an interlocutory judgment awarding dower in the property described and directing a. reference as to whether an admeasurement could be had, and if not, for a sale of the premises. At the same time the defendants moved for an order that in the event of the plaintiff being entitled to judgment, they should have leave to pay the plaintiff the gross sum to which she might be adjudged to be entitled. Upon the hearing of this motion the court ordered a reference to ascertain the value of the plaintiff’s fight of dower and to report the respective amounts so ascertained by him. Upon the report of the referee a motion was subsequently made to confirm the same, and on the 18th of February, 1892, an order was entered denying defendants’ motion to dismiss the complaint and confirming the referee’s report, with certain modifications, and granting leave to defendants to pay the gross sum which the court found the plaintiff was entitled to receive. On the same day, and prior to the entry of this order, the plaintiff died, and a motion was thereupon made on behalf of the executor of plaintiff to continue the action in his name, and providing that the payments should be made to him as such executor. The defendants made s motion to vacate the order of February 18, 1892, upon the grounc that at the time said order was made the plaintiff had departed thi life and the 'action abated. The court denied the defendant’s motion to vacate the order of February eighteenth, and granted the plaintiff’s motion for a continuance, the decision being placed upon the ground that under the provisions of section 763 of the Code the plaintiff’s rights were finally determined by the verdict of a jury; and it is from these orders that the present appeal is taken. This presents a question as to the construction to be given to this section 7f>3, which reads as follows :

“ If either party to an action dies after an accepted offer to allow judgment to be taken, or after a verdict, report, or decision, or an interlocutory judgment, but before final judgment is entered, the court must enter final judgment in the name of the original parties, unless the offer, verdict, report or decision or the interlocutory judgment is set aside.”

This section is to be found tinder a title relating to “ proceedings upon the death or disability of a party;” and in its first section (755) is a provision that an action does not abate by any event if the cause of action survives or continues.” By subsequent sections under this title provision is made with respect to what proceedings were to be taken, under certain circumstances, upon the death of a party, all of which have reference to causes of action which survive .after the death of the party. "While, therefore, the effect of these sections is to permit the continuance of the action where the cause of action itself is not abated by the death of the party, they have no relation to an action such as this, where the cause of action itself ■abates by the death of the plaintiff. We are thus brought to the consideration of the true construction to be given to section 763. Having in mind the prior sections and section 764 (which latter has reference to an action for personal injury and provides that the action does not .abate by the death of a party) we are .enabled to determine the true intent- and meaning of section 763. From such examination we ■think it reasonably clear that this section will not support the order made continuing the action; and for two reasons: First. It does not apply to a case where the cause of action abates by the death of the plaintiff; and, second, even though it could be held to apply generally to any action, that in one such as this, to admeasure dower, a continuance would not be authorized upon the death of the plaintiff before the entry of judgment.

We think the first reason is supported, as shown, by a consideration of the preceding sections of the Code, and their relation to each other under a single title. This view is enforced by section 764, which was undoubtedly intended to save from the general rule by which an action abates, if the cause of action abates, the case of an action to recover damages for personal injury. As has been well said by the appellant’s counsel: The language here is plain and explicit, and it is quite manifest that, if it had been the intention to' make some provision in regard to actions in general, that intention would have been made equally plain and explicit; in fact, if the' construction of section 763 contended for by the respondent were' the true one, section 764 would have been entirely unnecessary, for the provisions of section 763 would have applied as well to an action to recover damages for a personal injury as to all other actions.”

The second finds support from a consideration of the nature of the action and the verdict rendered in the plaintiff’s favor. Even-if section 763 has any application to actions generally, we think that the verdict, report, decision or interlocutory judgment contemplated is one that determines the whole action, and in which nothing remains to carry the same into effect but the entry of final judgment, thereon; and cannot be held to apply to a case like this which relates to but a single issue involved in the case, and which is but-the initiation of proceedings leading to a determination in the action of the rights of the parties. If we keep in mind what is determined by the verdict in an action for the admeasurement of dower and the-subsequent proceedings, we think this is reasonably clear. The-verdict determines that the plaintiff is entitled to dower, and the interlocutory judgment to be entered thereon can only direct that the plaintiff’s dower be admeasured by a referee or commissioners. Where, however, the plaintiff has filed a consent and is entitled to an interlocutory judgment, the court, upon the application of either party, may ascertain whether a distinct parcel of the property can be admeasured and laid off to the plaintiff as tenant in dower; and if such admeasurement cannot be made, a sale must be directed ; and it is upon such sale being made and confirmed that the value of the plaintiff’s dower in the net proceeds is calculated and fixed. Practically, therefore, nothing is determined by the verdict except that the plaintiff is entitled to maintain an action, the form of such verdiet being that she is entitled to-dower in the premises which is to be determined and fixed, not only by the interlocutory judgment, but by reason of the subsequent proceedings by final judgment.

We are of opinion, therefore, that the verdict, report, decision or interlocutory judgment referred to in section 763 has reference to such verdict, etc., as determines the rights of the parties; and that the section will not apply to a verdict such as the one here, it not having reached a stage which determines the rights of the parties.

For these reasons we are of opinion that the order should be reversed, and that the defendant’s motion to set aside the order of February eighteenth should be granted, with costs.

Present — Yan Brunt, P. J., and O’Brien, J.

Order reversed and defendant’s motion to set aside the order of February eighteenth granted, with costs.


text:
    LEWIS C. KING, Respondent, v. JOHN TOWNSHEND, Appellant, Impleaded with Another, Defendant.

      Estoppel — where it does not appea/r that the precise question litigated in the second action was determined in the former one.

    Lewis C. King, in May, 1891, brought an action against John Townshend and his tenant, Charles Lehman, to set aside a lease of certain premises, described in the complaint, from the city of New York to John Townshend, executed in the course of proceedings to enforce the payment of a void assessment.
    The complaint alleged that the invalidity of the lease did not appear upon its face, and asked that it be canceled as a cloud upon the plaintiff’s title. It also alleged, and the answer denied, that the plaintiff was the owner and in possession of the premises described in the lease.
    The plaintiff having proved a paper title and possession in May, 1891, the defendant, who had alleged title, offered in evidence a judgment record, in the Superior Court of the city of New York, in an action of ejectment brought by William Moores against John Townshend and Charles Lehman. The verdict upon the trial of that action in 1887, was in favor of the defendants, subject to the opinion of the General Term, which thereafter affirmed the judgment upon the merits, which judgment at General Term was affirmed in the Court of Appeals under a statement of facts which certified that the facts proved on the trial did not establish either title or a right of possession in William Moores, and that he had not shown possession in himself, nor in those under whom he claimed.

      Upon the trial of the present action the defendants insisted that the judgment of the Superior Court against Moores was an estoppel as to King, who took title from Moores after the entry of that judgment, hut the court decided against this claim, holding- that the judgment in question did not show that the judgment was rendered upon the question of title, and that it might have been for the possession only.
    Upon an appeal by the defendants from this decision:

      Meld, that this construction was correct.
    That while, as a general rule, a judgment upon the merits was conclusive upon the parties, and their privies upon the same matters in any subsequent action, yet the precise question involved in the second action must have been finally determined in the first action or, within the pleadings, must have been capable of a determination therein.
    That where the prior judgment might have been based upon either of two facts, or states of fact, the party alleging the estoppel must, to avoid a new contest, show affirmatively that the judgment- went upon the particular facts which he claims created an estoppel.
    That, in the case in the Superior Court, the statement which went up to the Court of Appeals, and was a part of the record, showed no more than that the facts proved upon the trial did not establish any title in Moores, and did not show clearly that the court intended to make any final adjudication upon the question of title as between the parties.
    That, whether or not the court had power, upon the facts appearing in the case in the Superior Court, to have adjudicated upon the question of title, section 1524 of the Code of Civil Procedure, making a judgment in ejectment conclusive upon parties and privies, evidently contemplated that, in order to have such a result, “the title” must be “established in the action.”
    That no title had been established, and, therefore, no estoppel could arise.
    Appeal by the defendant John Townshend from a judgment of the Supreme Court, made at the New York Special Term on the 14th day of May, 1892, adjudging the plaintiff to be the owner of the premises described in the complaint; that a sale of said premises made by the clerk of arrears in the city of New York on the 18th day of September, 1871, to enforce an assessment, to one C. Murray and the certificate of the sale (which was by him assigned to John Townshend) were void; that a lease of said premises, executed by the comptroller of the city of New York to said Townshend, dated November 14, 1873, for a term of ninety years, was void, and that the lease was a cloud upon the plaintiff’s title, and directing that the lease be canceled.
    The complaint, which set forth the giving of the lease made by the comptroller to Townshend above referred to, stated that the alleged invalidity in the lease would not necessarily appear upon its face nor in proceedings to enforce it. It appeared upon the trial that William Moores and his wife conveyed the premises in question to the plaintiff, Lewis C. King, by a deed dated January 28, 1890, acknowledged, but not recorded, and that the defendant Charles Lehman was a tenant of John Townshend.

      Jolm Townshend, for the appellant.

      L. A. Gould, for the respondent.
   Patterson, J.:

The decree from which the appeal is taken in this cause declared that a certain tax lease of premises described in the complaint, made and executed by the proper authorities of the city of New York to the defendant, was void, and directed it to be canceled of record as a cloud on the plaintiff’s title, for the reason that excessive interest had been added to the amount of an assessment for nonpayment of which the property was sold. It has been held by this court that a tax sale made under such circumstances is void (In re Willis, 30 Hun, 13), and by the Court of Appeals, that where the facts constituting the illegality of the sale do not appear of record, but must be proven by extrinsic evidence, a suit will lie to remove as a cloud upon title a lease or deed based upon such a void sale. (Stewart v. Crysler, 100 N. Y., 378.) The burthen of proving the facts constituting illegality in this case was upon the plaintiff, for the statute makes the lease prima facie evidence of the regularity of all proceedings resulting in its execution and delivery. (Chap. 381, Laws 1871, § 941, Consolidation Act, chap. 410, Laws of 1882.) Sufficient was shown on the trial to-authorize the finding that the sale was void, but it is claimed that for other reasons the learned judge erred in holding that the plaintiff was entitled to a decree.

It is alleged in the complaint that the plaintiff is the owner, and in possession of the premises described therein. -The answer puts that allegation in issue. It was, therefore, necessary for the plaintiff to establish title in himself by competent evidence. That he did by grants or conveyances sufficient to vest a paper title in him; and although there was some dispute as to possession he showed that he had it when this suit was begun. On the trial the defendant, as evidence against the plaintiff’s asserted title, introduced (and as would appear) without objection a judgment record entered in the Superior Court of the city of New York in an action of ejectment brought by one Moores, the present plaintiff’s immediate grantor, against this defendant and his tenant in possession for the recovery of the same premises. That action was tried October 1, 1886, and a verdict was directed for-the defendant subject to the opinion of the court at General Term. Judgment on the verdict and directing the dismissal of the complaint was ordered by the General Term, and was entered March 10, 1887. The judgment is expressly stated to be on the merits. An appeal was taken to the Court of Aj>peals and the judgment was affirmed. In obedience to the requirements of section 1339 of the Code of Civil Procedure the Superior Court certified to the Court of Appeals (and it went up as part of the record), a statement of the facts, the questions of law arising thereon and the determination made of the same, in which statement it was, among other things, certified, that the facts disclosed on the trial did not establish any title to or right of possession of the locus m quo in Moores, and that he had not shown possession thereof in himself nor in the persons through whom he claimed.

It will be observed that this judgment of the Superior Court, which is now invoked as an estoppel against the plaintiff, was rendered in March, 1887, was upon the merits, and if it was binding-upon Moores on this question of title, it would also estop the present plaintiff as his grantee, the grant being subsequent to the judgment. (Campbell v. Hall, 16 N. Y., 579.) The present suit was begun May, 1891, more than four years after the entry of the judgment in the Superior Court. The question for consideration, therefore, is, what is the effect of the judgment referred to on the title derived by the plaintiff from Moores ? It may be stated as a general rule that a judgment between parties binding on them and their privies, and rendered on the merits, is conclusive upon the same matters in any subsequent action, whether brought for the same or for any other object or purpose, or in the same or any other form of action. (Castle v. Noyes, 14 N. Y., 329; Smith v. Smith, 79 id., 634; Jordan v. Van Epps, 85 id., 427; Leavitt v. Wolcott, 95 id., 212; Pray v. Hegemam, 98 id., 357; Bell v. Merrifield, 109 id., 211.) And it is immaterial whether the judgment is pleaded in bar as a defense, or is put in evidence without being pleaded as an estoppel. (Embury v. Conner, 3 N. Y., 522; Krekeler v. Ritter, 62 id., 372.) But engrafted upon the general rule is the condition that the precise question involved in the second action must have been (or, within the pleadings, might have been) finally determined in the first action (Bell v. Merrifield, supra), and that where the prior judgment may have been based upon either of two facts, or states of fact, the party seeking to avail himself of the estoppel must show affirmatively that it went upon the particular ’ facts claimed to create that estoppel, otherwise it is open to a new contest. (Lewis v. Pier Co., 125 N.Y., 348.) The learned judge at Special Term found and based his decision on the finding that the record in the Superior Court did not disclose that the judgment was rendered upon the question of title, but that it may have been on that of possession only. All that appears from the judgment-roll, properly so-called, is, that the judgment was on the merits, but what was determined by the Superior Court, as certified by it to the Court of Appeals, is, that it was adjudicated that the facts proven did not establish any title to the premises in Moores. This certificate of the General Term was required by law; is to be regarded as part of the proceedings in the action similar to findings of fact and conclusions of law on a trial at Special Term, and was necessary to enable the court of last resort to know upon what grounds the determination below was based.

We agree with the Special Term that the Superior Court judgment is not conclusive in this action on the question of title, because it is not clear that that court intended to make a final and binding adjudication on that subject, and it is, at least, very doubtful under the statute if it had the power to do so under the facts certified by it to the Court of Appeals. The conclusiveness of a judgment in ejectment on the question of title is a matter of express statutory provision in the State of New York. Before the Revised Statutes, as is well known, a judgment in ejectment was not a bar or an estoppel to new actions on new demises, but as many subsequent actions might be brought as there were new leases made, and the only way to prevent further litigation was by a decree in equity enjoining other actions being brought at law. The revisers remodeled and regulated the action of ejectment intending to assimilate it as' a real action, as nearly as might be to replevin as a personal action, but in doing so . they carefully provided for the effect of a judgment both after a trial and upon default of a defendant in pleading — as to the former case it being enacted' (§ 36, 2 R. S., 309), that every judgment in the action of ejectment rendered upon a verdict shall be conclusive as to the title established m such action upon the party against whom the same is rendered, and against all persons claiming from, through or under such party by title accruing after the commencement of such action, subject,” etc., and subsequently the provision being extended to judgments rendered on the report of % referee on the facts or the decision of a single judge on ,the facts. (2 Edmond’s R. S., 317.) This provision of the Eevised Statutes is now contained in substance in section 1524 of the Code of Civil Procedure. Now, it is to be observed that the Superior Court certifies that on the' question of tide there was merely a failure of proof. If title were only involved, a dismissal as in the case of an ordinary nonsuit would have been the proper judgment. But possession and title being both involved in actions of ejectment since the Eevised Statutes (Cagger v. Lansing, 64 N. Y., 417), it is probable that, on the finding that the plaintiff Moores was not entitled to possession, the Superior .Court held the complaint should be dismissed on the merits, for it is not to be assumed that that learned court intended to ignore the plain provision of the statute, that to make the judgment conclusive as to title there must be a title established in the action; and it would be an absurdity to say that the failure of a plaintiff to prove title in himself establishes one in his adversary, or in any one else. In the defendant’s answer in the Superior Court action no title was set up. The whole defense was simply on the general denial; and respecting a judgment in such a case the language of Mr. Justice Swayne (Barrows v. Kindred, 4 Wall., 399), in commenting upon the Illinois statute, which is similar to ours, respecting judgment in ejectment, is pertinent. The learned judge says: “ Where a judgment is rendered for the plaintiff the title upon which he recovered is thereby established and the construction and effect of the statute are obvious. He must recover in all cases, if at all, upon the strength of his own title, and not upon the weakness of his adversary’s. It is'not incumbent on the defendant to show any title; Where a plaintiff shows no title, and is, therefore, defeated, it is not easy to perceive how any title can be said to have been established in the action, or how, under the statute, the result can affect his right to bring a new action.” And in our own courts the same view of the statute has been taken. (Briggs v. Wells, 12 Barb., 569; Ryerss v. Rippey, 25 Wend., 432), tbe latter case being cited to tbe same point by Rapallo, J., in Dawley v. Brown (79 N. Y., 398).

There was no title whatever established in anything by tbe Superior Court judgment, and, as it does not clearly appear, either by the record in that action or otherwise, that the court intended to find title in either of the parties, we'think the Special Term was right in holding that the judgment referred to did not conclusively estop the plaintiff from showing here that title in Moores, his grantor, which was not shown on the trial of the ejectment action, but which was proven on the trial of the case at bar. Tbe judgment must be affirmed, with costs.

Van Brunt, P. J"., and O’Brien, J., concurred.

Judgment affirmed, with costs.


text:
    MARY DAVIES, as Administratrix of JOHN B. DAVIES, Deceased, Respondent, v. THE PELHAM HOD ELEVATING COMPANY, Appellant.

      Negligence — an applianee defective and dangerous to life — privity of contract is not essential to liability — change in the applianee made at the request of the party injured — its effect on his right to recover.

    In an action brought by Mary Davies, as administratrix of her husband, John B. Davies, against the Pelham Hod Elevating Company to recover the damages resulting from her husband’s death, through its alleged negligence in performing a contract made by it with Hopper & Co., it appeared that a derrick, rigged with a steel-wire rope,, had been furnished to Hopper & Co. by the
    . Pelham Hod Elevating Company, and was safely operated for several weeks; that about three weeks before the accident occurred John B. Davies, who, as the representative of Hopper & Co., took charge of the work, which consisted in laying a foundation for a building, objected to the wire rope and wished to have a manilla rope substituted, to which Mr. Hopper assented, and the Pelham Hod Elevating Company thereupon furnished a manilla rope, of the size which Davies required, and this was adjusted to the derrick in his presence and with his help.

      In setting a heavy stone the rope broke and Davies was killed, although it appeared that equally heavy stones had been successfully laid with the manilla rope.
    Upon an appeal by the defendant from a judgment in favor of the plaintiff:

      Seld, that although there was no privity of contract between John B. Davies and the defendant, his administratrix was not debarred by that fact from a recovery.
    That as the defendant knew the use to which the derrick wag. to be put, and, consequently, whether the rope was or was not insufficient and improper, and as the jury might have found that the appliance was dangerous to life, no privity of contract was necessary to make the defendant liable to John B. Davies.

      Devlin v. Smith (89 ÜST. Y., 477) followed; Burke v. De Castro, etc., Sugar Refining Company (11 Huh, 354) overruled.
    That, inasmuch as the defendant furnished the identical derrick which Hopper & Co. selected, provided with a wire rope which answered every purpose until discarded, and as a change was made by John B. Davies, in charge of the derrick, to a rope of his owu selection, the defendant was not guilty of any negligence and the plaintiff could not recover.
    Appeal by the defendant, the Pelham Hod Elevating Company, from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 28th day of November, 1891, upon a verdict for the plaintiff for $2,000, after a trial at the New York Circuit before the court and a jury; and also from an order of said court denying a motion for a new trial.
    The action was brought to recover the damages resulting from the death of one John B. Davies, who was killed while operating a derrick furnished to the employers of the decedent by the defendant.
    Upon the trial Mr. Hopper testified that he was the contractor for the construction of the building, in the erection of which the accident happened, and that the derrick in question was delivered to him in the same condition as it had been before when he saw it working across the street, as far as he knew.

      George 8. Goleman, for the appellant.

      William, R. Arnowe, for the respondent.
   O’Brien, J.:

This action was brought to recover the sum of $5,000 for the loss of the life of the plaintiff’s intestate, which was alleged to have been due to the negligence of the defendant in fulfilling its contract with one Hopper & Company, and in furnishing an insufficient derrick and appurtenances. Defendant’s contract was to furnish a derrick with ropes, blocks, engine and engineer to operate it on the premises on the north-east corner of Fifty-ninth street and. Fifth avenue, to be used in hoisting and placing in position blocks of granite that were to be used as foundation stones and piers of the hotel now known as the Astor Hotel. Some question upon the pleadings is presented as to whether or not the defendant knew the purpose for which the derrick was to be used, but we think that the construction given by the learned trial judge to the pleadings was correct.

The evidence shows that the contract was made with reference to a derrick that Mr. Hopper had .previously seen in operation upon a building directly opposite to the one in question. This same derrick, rigged with a steel-wire cable, was delivered and thereafter safely operated for some weeks. About three weeks before the accident the plaintiff’s intestate took charge of the work and control of the derrick as Mr. Hopper’s representative. He found fault with the cable wire rope and desired to have it changed for manilla rope. Mr. Hopper authorized him to make any changes he might deem proper as he was in entire control of the derrick. At the request of the intestate the change was made in his presence and with his assistance, defendant furnishing a new manilla rope four and one-quarter inches in circumference, and being one-quarter inch larger than, according to the testimony of one of the witnesses, was asked for by Davies. On or about the 10th of June, 1891, the derrick had lifted a granite block weighing five and one-half tons on one of the piers; it had a mate-stone. It was found not to have a level bed. Davies gave orders to raise it off its bed. It was raised two or three inches when the manilla rope, the toppinglift, broke, precipitated the granite block and the boom, which the rope held in position, to the ground. The boom in its descent struck plaintiff’s intestate on his head, causing injuries from which he soon after died. Evidence was offered by plaintiff tending to show that the rope was unfit, of insufficient strength to lift these massive pier stones. On the other hand, some of plaintiff’s witnesses and others, produced by defendant, testified that this rope was used in raising large stones for about two weeks; fifty-five stones were raised and set in place with it,' about a dozen of these were as large as the stone in raising which the rope broke, and one was much larger.

Were there no other question in the case but that presented by the conflicting evidence as to the sufficiency of the rope, the jury having found in favor of the plaintiff, the verdict could not be disturbed. The appellant insists that the complaint should have been dismissed as it alleged no cause of action against defendant in favor of the plaintiff, the charge being negligence in fulfilling a contract with Hopper & Co., by reason of which alleged negligence plaintiff’s intestate was injured and subsequently died. It is contended that, because there was no privity of contract or privity of any kind between plaintiff’s intestate and the defendant, no recovery could be had. In support of this view we are referred to the case of Burke v. De Castro, etc., Sugar Refining Company (11 Hun, 354), where it was held that the plaintiff could not maintain an action against the defendant based upon the negligence of the defendant in furnishing an unsafe apparatus for hoisting sugar, which the defendant, under a contract, had allowed the plaintiff’s employer to use and had hired to him for the purpose of unloading a cargo of sugar from a vessel.

We think, however, that the case of Devlin v. Smith (89 N. Y., 477), extending the principle of the case of Thomas v. Winchester (6 id., 397), must be regarded as having overruled the case of Burke v. De Castro, etc., Sugar Refining Company. In this latter case (Devlin v. Smith), it was said, in speaking of the liability of one who undertook to build a scaffold ninety feet high for the purpose of enabling the workmen of one Smith to stand upon it and paint the interior of the dome of a court-house, that the builder of the scaffold was liable for any neglect or negligence in its construction which would cause it to give way and result in injury to an employe or servant of Smith’s. As was said in that case, commenting upon Coughtry v. The Globe Woolen Company (56 N. Y., 124) “The deceased was not a party to that contract, and the same argument was made as is urged here on the part of .the defendant, that the latter owed no duty to the deceased. But this court held that, in view of the facts that the scaffold was upwards of fifty feet from the ground, and unless properly constructed was a most dangerous trap, imperiling the life of any person who might go upon it, and that it was erected for the very purpose of accommodating the workmen, of whom the person killed was one, there was a duty towards them resting upon the defendant, independent of the contract under which the structure was built, to use proper diligence in its construction ” In view of the uses to which admittedly the defendant knew the derrick was to be pnt, we think that the case of Devlin v. Smith is controlling.

Assuming, therefore, that proof of knowledge by defendant of the uses to which the derrick and ropes connected therewith were to be put, coupled with the fact that they were insufficient and improper, thus making them eminently dangerous to life, was sufficient, within the principle of the case cited, to render the defendant responsible for injury to plaintiff’s intestate, in the absence of any privity between them, there still remains in the case another feature which we think fatal to plaintiff’s recovery. The defendant’s contract was to furnish a particular derrick properly rigged. In fulfillment of this obligation, the very derrick contracted for was erected, supplied with a steel-wire rope, which, as shown by the evidence, answered all purposes until, at the request of plaintiff’s intestate, it was discarded and the manilla rope substituted. "Whether the wire rope had a flaw in it or not, as testified to by one of the witnesses, there is no proof to negative the view that a perfect wire rope would have answered the purposes and uses to which the derrick was to be put. It was proved that the deceased had control of the derrick, and authority to change and to select or reject any or all ropes. The kind- of ropes he used was entirely under his control. Had he placed the obligation upon the defendant of selecting a rope suitable for the purpose, a failure to discharge this obligation might have rendered the defendant liable. But where, as in this case, the plaintiff’s intestate insisted upon a change from the steel-wire to the manilla rope, and when the rope, as furnished by the defendant, in all respects, was such as ordered, and was one-quarter-inch larger than the intestate thought sufficient, it is difficult to understand in what respect defendant was negligent after supplying to plaintiff’s intestate the very kind of rope thaThNorSred^WhileTtffierefdi^fl1© defendant’s original contract may have been to furnish a rope sufficient to do the work required, this obligation was- discharged by supplying the steel-wire cable with which the derrick was operated for several weeks, and up to the time that, by reason of some flaw he discovered therein, or acting upon his own judgment as to the best kind of rope to be used, the plaintiff’s intestate directed the steel-wire cable to be removed and a manilla rope substituted. It thus appears that, in accordance with the requirements of plaintiffs intestate, to whom authority was given, and who had a right to change the rope, the defendant, in compliance with the request and order so given, delivered the -manilla rope, which the evidence in the case was directed to show was insufficient for the uses to which, on that particular building, the derrick was to be put. We are of the opinion that the substitution by plaintiffs intestate of his own judgment for that of the defendant, in respect to the kind of rope that should be used, is a complete answer to the claim made of negligence as against defendant in having supplied him with the very thing that he ordered, and from the use of which his injuries were received.

No motion was made to dismiss the complaint upon this ground, but, in various forms, it was presented to the court in the shape of requests to charge the jury, which were refused by the learned trial judge, and an exception to such refusal taken.

We are of opinion that, had a motion been made to dismiss the complaint at the close of the evidence, it should have been granted; and that the error in the refusals to charge propositions of law, to which the defendant was entitled, was such error as to require'a reversal of the judgment and a new trial, with costs to appellant to abide the event.

Patterson, J., concurred; Yan Brunt, P. J., concurred in the result.

Judgment reversed and new trial ordered, with costs to the appellant to abide event.