text:
    JOHN CUNNINGHAM, Appellant v. EAST RIVER ELECTRIC LIGHT COMPANY, Respondent.

      Practice—Malicious prosecution and false imprisonment, may be combined in one action, etc.

    At the commencement of the trial plaintiff’s counsel announced that the action was one for false imprisonment only, and not for malicious prosecution; whereupon the trial judge granted defendant’s motion to dismiss the complaint. Plaintiff then asked leave to amend, which was denied, and then asked leave to withdraw a juror, which request was also denied. To neither of these rulings was any exception taken by plaintiff’s counsel, and, therefore, Held, that they present no question for consideration on appeal.
    After this, in the course of the proceedings, the defendant’s counsel asked for an extra allowance of costs, which was granted, and after this, and not before, plaintiff’s counsel took an exception to the dismissal of the complaint. Held, that the plaintiff was at liberty to combine in the same complaint an action for false imprisonment and one for malicious prosecution, but plaintiff’s counsel having particularly stated that the action was for false imprisonment, solely, the case on appeal must be considered from that standpoint alone. It is well settled that the material allegations in a complaint for false imprisonment, as distinguished from one for malicious prosecution, are the allegations that the defendant had imprisoned plaintiff and that the process was unlawful, that is, without authority of law. The action cannot be maintained where the process was regular and the arrest under it lawful.
    There being no claim made in the complaint that the arrest was unlawful ,or the process irregular, Held, that there was no error in the ruling of the trial judge that the complaint does not state facts sufficient to constitute a cause of action for false imprisonment.
    Before McAdam and Gildersleeve, JJ.

      Decided January 11, 1892.
    Appeal from judgment dismissing the complaint, on the ground that said complaint does not state facts sufficient to constitute a cause of action.

      William J. Lacey, attorney, and William H. Megan of counsel, for appellant.

      William H. Kelly, attorney, and Michael J. Kelly of counsel, for respondent.
   By the Court.—Gildersleeve, J.

This is an appeal from a judgment rendered at trial term, dismissing the complaint in this action, on the ground that said complaint does not state facts sufficient to constitute a cause of action.

The complaint sets forth the cause of action as follows: That on the 8th day of January, 1890, at the city of New York, said defendant, maliciously intending to injure the plaintiff, procured the plaintiff to be arrested and placed in the custody of a police officer, who compelled the plaintiff to go with him, against the will of said plaintiff, in such custody, through the streets of said city to the 18th Precinct Police Station, and after being confined there, said plaintiff was taken in such custody to the police court, and ivas then and there committed to the Tombs prison, and after being imprisoned and confined in such custody until the 10th day of January, 1890, said plaintiff was conveyed to the Court of Special Sessions in said city, where the defendant being unable to establish any offence against the plaintiff, said plaintiff was discharged and acquitted.”

At the commencement of the trial, the plaintiff’s counsel announced that the action was one for false imprisonment, only, and not one for malicious prosecution; whereupon the trial judge granted defendant’s motion to dismiss the complaint. Plaintiff then asked leave to amend, which was denied; plaintiff then asked leave to withdraw a juror and amend, which request was also denied. To neither of these rulings was any exception taken, so that they present no question for consideration here. After this, defendant asked for an allowance, which was granted; and then plaintiff took an exception to the dismissal of the complaint.

The plaintiff was at liberty to combine both an action for false imprisonment and one for malicious prosecution in the same complaint. See Marks v. Townsend, 97 N. Y., 590; also Castro v. Uriarte, 2 Civ. Pro., 214; hut as he particularly stated that his action was for false imprisonment, solely, we must consider the case from that standpoint, alone. See Von Latham v. Libby, 38 Barb., 342.

It is well settled that the material allegations in a complaint in an action for false imprisonment, as distinguished from one for malicious prosecution, are that defendant had plaintiff imprisoned, and that the process was unlawful, i. e., without authority of law. See Ackroyd v. Ackroyd, 3 Daly, 38; also Castro v. Uriarte, 2 Civ. Pro. R., 214; Marks v. Townsend, 97 N. Y., 590.

The action cannot be maintained where the process was regular, and the arrest under it lawful. See Nebenzahl v. Townsend, 61 How., 353; Landt v. Hilts, 19 Barb., 283; Sleight v. Ogle, 4 E. D. Smith, 445; Marks v. Townsend, 97 N. Y., 590; Reynolds v. Corp, 3 Cai., 267; Brown v. Crowe, 5 Wend., 298.

There is no claim made in the complaint that the arrest was unlawful, or the process irregular. As far as the complaint shows, the imprisonment was lawfully effected. The allegation of malice does not help the plaintiff; for even if the defendant were moved hy malice in causing the arrest, unless the process was irregular and unlawful, an action for false imprisonment, as distinguished from one for malicious prosecution, would not lie. See Sleight v. Ogle, 4 E. D. Smith, 445; also Von Latham v. Libby, 38 Barb., 339; Brown v. Chadsey, 39 Ib., 253; Ackroyd v. Ackroyd, 3 Daly, 38; Castro v. Uriarte, 2 Civ. Pro. R., 214.

We are of the opinion that the learned trial judge did not err in his ruling that the complaint does not state facts sufficient to constitute a cause of action, for false imprisonment.

The judgment appealed from is affirmed, with costs.

McAdam, J., concurred.


source: Caselaw Access Project

author: “Hamilton Odell, Referee. Per Curiam.

license: Public Domain

text:
    SAMUEL A. SAWYER, et al., Appellants v. SIEGFRIED GRUNER, et al., Respondents.

      Duress and compulsion—Contract, action to recover money paid under the same.

    This action was brought to recover from the defendants a sum of money alleged to have been paid to them by plaintiffs under duress and compulsion. The action was tried before a referee, who dismissed the complaint, holding that the proofs failed to show that the money was paid under duress and compulsion. The facts in this case, and the points of law raised by counsel, are important, yet too voluminous for a report of the same, beyond the limits of the opinion of the referee
    Before Freedman, P. J., McAdam and GlLDERSLEEVE, JJ.

      Decided January 11, 1892.
    Appeal from a judgment entered in favor of the defendants upon the report of a referee.
    The facts and points of law in the case appear in the opinion of the referee before whom the case was tried, which was as follows, and upon which the judgment was affirmed on appeal.
   Hamilton Odell, Referee.

I agree with the learned counsel for the plaintiffs, that the governing committee of the exchange had no jurisdiction, under the by-laws, to determine the controversy between these parties, or the rule by which damages, payable by the plaintiffs, should be assessed, and that there was no such submission of the controversy to the arbitrament of the committee as gave to their resolution of July 6th the effect and force of an award, and that their action on August 23d was rendered wholly nugatory, as against the plaintiffs, by the grossly improper participation therein of the defendant Arens. The plaintiffs’ right to recover in this action depends, in my judgment, upon the single question whether the payment made by them to the defendants on August 24th was made under duress and compulsion,’ as they alleged in their complaint.

A contract obtained by coercion or undue influence may be avoided, and money paid under compulsion, unjustly exercised, may be recovered back. Where a payment is voluntarily made, with knowledge of the facts, the party paying is concluded by his own act, and the law is powerless to restore to him his money. But to constitute a voluntary payment, the party paying must have had the freedom of exercising his will. When he acts under any species of compulsion, the payment is not voluntary.’ Scholey v. Mumford, 60 N. Y., 501. Where there exists coercion, threats, compulsion and undue influence, there is no volition.’ Barry v. Equitable L. A. Society, 59 N. Y., 592. McPherson v. Cox, 86 N. Y., 472, was an action upon a bill of exchange made by the master of the defendants’ vessel, of which the plaintiff was the charterer, and which was laden with cotton and ready to sail for Liverpool. The plaintiff was also the defendants’ agent, through whom alone a Custom House clearance for the vessel could be obtained. A dispute over freight moneys arose between the master and the plaintiff, and the latter refused to procure the clearance or permit the vessel to proceed upon her voyage, unless the bill on which the suit was brought was signed. It was held that the bill was obtained by duress, and that there could be no recovery. The court said: ‘ The plaintiff was the agent of the owners of the. vessel, the shipper and consignor of the goods. He, and no other person could get clearance for the vessel at the custom house, and that exclusive power, and the refusal to exercise it, was constraint. * * * The confinement, by reason of the plaintiff’s refusal to do the thing which should clear or let go the vessel, was as coercive and difficult to resist as an actual seizure or imprisonment would have been.’ The same rule was declared in Stenton v. Jerome, 54 N. Y., 485, where bonds of the plaintiff were held by the defendant, who threatened a sale of them unless the plaintiff paid a sum demanded, which was in excess of what she admitted to be due. To prevent the sale the plaintiff complied with the demand. The court said that the payment was not voluntary, that it was procured by duress of goods, and was no more voluntary in the eye of the law than if procured by duress of the person. In Swift & Courtney Company v. United States, 111 U. S., 22, the complainants, in order to continue their business, had been compelled to submit to certain orders and rules of the Internal Revenue Bureau relating to the purchase of revenue stamps for use upon goods manufactured by them, whereby they alleged they had sustained serious loss and injury. Judge Matthews said :— The question is whether the receipts, agreements, accounts and settlements made in pursuance of that demand and necessity, were voluntary in such sense as to preclude the appellant from subsequently insisting on its statutory right. We cannot hesitate to answer that question in the negative. The parties were not on equal terms. The appellant had no choice. The only alternative was to submit to an illegal exaction or discontinue its business. It was in the power of the officers of the law and could do only as they required. Money paid or other value parted with, under such pressure, has never been regarded as a voluntary act within the meaning of the maxim, Volenti non fit injuria.’’

" The rule is asserted in a multitude of authorities of the highest character and is common law in all the states. It rests upon the wholesome and just principle that a party who is enabled, by circumstances, to exercise a controlling influence over the will, conduct and interest of another, shall not be permitted to make use of his position for purposes of extortion or oppression. Adams v. Irving National Bank, 116 N. Y., 613; Secor v. Clark, 54 Superior Ct. Reps., 499.

“ It is plain, however, from all the cases that a court can grant relief only when duress or compulsion is clearly proved. The compulsion must have been illegal, unjust and oppressive.’ Dickerman v. Lord, 21 Iowa, 338. The duress must have amounted to ‘ that degree of constraint or damage, either actually inflicted or threatened and impending, which is sufficient, in severity or apprehension, to overcome the mind and will of a person of ordinary firmness.’ Brown v. Pierce, 7 Wallace, 214; United States v. Huckabee, 16 Ib., 431. It must be exerted under circumstances sufficient to influence the apprehensions and conduct of a prudent business man.’ Robertson v. Frank Brothers Company, 132 U. S. ‘ To constitute the coercion or duress which will be regarded as sufficient to make a payment involuntary, there must be some actual or threatened exercise of power possessed, or believed to be possessed, by the party exacting or receiving the payment over the person or property of another from which the latter has no other means of immediate relief than by making the payment.’ Radich v. Hutchins, 95 U. S., 210. There must be something more than threat and peril of pecuniary loss. Secor v. Clark, 117 N. Y., 353. The case of Silliman v. United States, 101 U. S., 465, is instructive upon this point. The claimants were the owners of certain barges which they had chartered to the government, and for the use of which they were to receive an agreed rate of compensation so long as the government should retain the barges in its service. Soon after the original agreements were made, the department in charge demanded that the claimants should execute new charter parties by which the rate of compensation would be materially reduced. Of this, Judge Harlan says : ‘ It (the department) announced its purpose to retain possession and withhold all compensation unless and until the claimants executed the proposed new charter parties. In other words, the department informed claimants that it would not comply with the provisions of the original contracts unless the claimants would submit to material alteration against their interests and to the advantage of the government.’ This the claimants refused to do. They demanded possession of their vessels, but their demand was not complied with. Instead (says' Judge Harlan) of seeking the aid of the law, claimants, with a full knowledge of their legal rights, executed new charter parties, and from time to time received payments according to the rates prescribed therein, protesting, when the new agreements were” signed, that they were executed against their wishes and under the pressure of financial necessity. They now seek the aid of the law to enforge their rights under the original charter parties upon the ground that those last signed were, executed under such circumstances as amounted in law to duress.’ Their claim was held to be without foundation. There was no threat of injury to their persons or to their property, to avoid which it became necessary to-execute new charter parties. Nor were those charter parties executed for the purpose or as a means of obtaining possession of their property. They yielded to'the threat or demand of the department solely because they required, or supposed they required, money for the conduct of their business or to meet their pecuniary obligations to others. Their duty, if they expected to rely upon the law for protection, was to disregard the threat of the department and apply to the courts for redress against its repudiation of a valid contract. * * * * There is present no element of duress, in the legal acceptation of that word.’

" Applying these principles, I am unable to find in the facts of the case in hand evidence of such coercion of the plaintiffs by the defendants as will warrant a finding that the payment of August 24th was not a voluntary payment but was made under duress, or as the only means of immediate relief from threatened and impending danger. The plaintiffs’ case is stated in their complaint as follows : They had contracted with the defendants to deliver certain quantities of coffee during June, 1888. They had made or tendered full performance of their contracts, which the defendants had refused to accept, alleging that the acts and offers of the plaintiffs were ineffective for lack of observance by them of certain by-laws of the Coffee Exchange, under and subject to which the said contracts had been made. A controversy had arisen between the parties which had been .submitted to the consideration of the board of managers <of the ¡exchange, and that board, after hearing the ease, had .-adopted a resolution which declared that, in their -opinion ’ the plaintiffs were in default upon their contracts, and that in their opinion ’ the plaintiffs should settle with the defendants upon terms stated in said resolution. This the plaintiffs declined to do; and afterwards, through the action of the defendants, a second hearing was had before the managers, which resulted in a readoption of the former resolution, without amendment in either of the particulars above referred to, and in a notice to the plaintiffs that this opinion is the final decision of the hoard.’ As already stated the board of managers (the governing committee) had no jurisdiction under the Jby-laws to decide this controversy, and their resolution had no force as an award. It was the mere opinion of less than a- majority-of a bare quorum of the managers, and was adopted by the casting vote of Arens, who was one of the complainants and prosecutors before the board. It was incapable of enforcement by any process or proceeding, summary or otherwise.

“ By the 64th by-law of the exchange, it was provided as follows: ‘ Any member who fails to comply with his contracts, or who becomes insolvent, shall be suspended until he has settled with all his creditors. Such member shall immediately inform the manager in writing that he is unable to meet his engagements, and the manager shall thereupon immediately announce from the rostrum the insolvency of such member, and shall also post upon the bulletin board a notice to that effect for the space' of five days. The secretary shall record the failure of such member in a book kept for that purpose.’ Then follows the form of notice to be posted : ‘ Mem-, bers of this exchange are hereby notified of the inability of to meet mercantile obligations. All contracts with must therefore be closed as provided in section 66 of the by-laws.’ Section 66 provides, that ‘the official notice of the failure of a member shall operate as an immediate closing of all outstanding contracts between that member and other members of the exchange. All such contracts shall be liquidated and settled at the average quotation of like contracts made on the day of the failure, etc.’ I believe that both of the learned counsel agree that the sixty-fourth by-law applies only to cases of actual insolvency. That being so, its provisions could not be invoked by these defendants in aid of the resolution of the board of managers, for no suggestion, in any form, is made that Sawyer, Wallace & Co. were not abundantly able to meet all their obligations, and the testimony of Mr. Sawyer is that the firm were solvent. They were large dealers, and on the 23d of August, had other outstanding coffee contracts, aggregating about 30,000 bags. They did business, also, on the Cotton and Produce Exchanges, and in the western and southern markets, and in Germany, France, Belgium and Great Britain.

“ The complaint contains this allegation : " That said plaintiffs made such payment under duress and compulsion. That if they had refused to do so, they would have been, as they then verily believed and now believe, posted under the by-laws as having failed, whereby all outstanding contracts to which they were parties would have been immediately closed, their credit both in this country and- in Europe would have been seriously impaired, and they would, in consequence, have suffered irreparable pecuniary damage.’ Mr. Sawyer testified that they made the payment " because we feared that the next step of the board of managers would be to post us and discipline us, the consequence of which to us would have been far more serious than the loss of the $3,500.’

“Was there any reasonable ground for such an apprehension on the part of the plaintiffs ? Was there any reasonable ground for a belief that the board of managers would proceed either to enforce a decision which they had no jurisdiction to pronounce, or to punish the plaintiffs for a failure to comply with it, by the assumption and exercise of powers which they did not possess ? Was there any good reason for believing that such illegal action, if contemplated, would be taken before the plaintiffs could take proceedings to prevent it? The proofs do not authorize an affirmative answer to either of these questions. The plaintiffs say that they made the payment believing that the board of managers meditated immediate forcible proceedings by which the plaintiffs would have been irremediably injured, and that this was constraint. Granted, but it was constraint of their own creation, unless their belief was naturally and reasonably induced by the actions or intimations of the hoard. Here, it seems to me, is the weak point in the plaintiffs case.

Francis M. Scott, for appellants.

Sullivan & Cromwell, for respondents.

My conclusion is that the proofs fail to show a case of duress within the rules established by the authorities which have been cited. The motion to dismiss is granted.”

Per Curiam.

The judgment should be affirmed, with costs, upon the opinion of the referee.


author: “Sedgwick, Ch. J. Per Curiam.

text:
    ALLAN C. DALZELL, Appellant v. THE FAHYS WATCH CASE COMPANY, Respondent.

      Demurrer to complaint on the ground that it appears upon the face of the complaint that the complaint does not state facts sufficient to constitute a cause of action.

      Held, that the complaint does not show the performance of the agreement on the part of plaintiff, which was to he the consideration of the obligations of defendant, on which the action was brought.
    1. There is no allegation of any assignment of inventions as provided in the agreement.
    2. The complaint does not sufficiently allege or express that the letters patent said to have been assigned were all that the plaintiff had procured at the time of the supposed assignment as provided in the agreement.
    3. The averments as to assignments by plaintiff, are not sufficient.
    Before Freedman, P. J., McAdam and Gildersleeve, JJ.

      Decided January 11, 1892.

      Appeal from interlocutory judgment sustaining a demurrer to the complaint.
    The facts and points in this case fully appear in the-opinion of the judge at special term, which was as follows, and upon which the judgment was affirmed on appeal:
   “Sedgwick, Ch. J.

The demurrer should be sustained on the following grounds:

The complaint does not show the performance of the agreement on plaintiff’s part, which was to be the consideration of the obligations of defendants on which the action was brought. It is as follows : ‘ The said Allan C. Dalzell hereby agrees to assign, etc., all the right, title and interest in all inventions and Letters Patent, etc., in consideration of which the said Fahys Watch Case Company hereby agrees, etc., etc.’ There is no allegation of any assignment of inventions.

The condition of the obligation to assign was to he a request in writing to Dalzell so to assign said Letters Patent. Upon such request being made as to Letters Patent, Dalzell was to assign inventions as well as patents.

“ The complaint does not sufficiently allege that the letters patent and inventions which the plaintiff had procured or made at the time of the alleged assignment were assigned. The averment of being the same Letters Patent mentioned in the contract ’ may he descriptive of the letters patent said to have been assigned, but does not express or imply that such letters were all that the plaintiff had procured at the time of the supposed assignment.

The averments as to assignments by plaintiff are not sufficient. They are that ‘ on, etc., plaintiff did duly assign, etc., unto defendant or for its use and at its request the letters patent aforesaid.’ The legal effect of a written instrument or of a verbal transfer may be sufficient without setting forth the words of the assignment or transfer. On the face of the complaint such legal effects are not averred, for it is stated to be to the defendant, or if not to him, then to his use. The branches of the alternative are not identical. Assuming that the transfer was to the use of defendant, even if requested, that is not by the contract set forth the assignment that was to be made. The statement that it was under and by virtue of said annexed contract ’ is contradicted by the face of that contract, unless facts are supposed which are not set forth, which would make a transfer to use a compliance with the terms of the contract. Otherwise there would be an expression of opinion by the complaint as to the transfer for the use being made under and by virtue of the contract.

Wilber & Oldham, attorneys and of counsel, for appellant.

Wetmore & Jenner, attorneys, and William A Jenner of counsel, for respondent.

“ The general allegations of the performance of conditions precedent are not to be deemed to embrace matter as to which the plaintiff has specifically pleaded, even if the payments of consideration and the transfer are conditions precedent within the meaning of § 533 of the Code.

Judgment for defendant that demurrer be sustained, .with leave to amend on payment of costs of demurrer.”

Per Curiam.

The judgment .should be affirmed, with costs, upon the opinion rendered by the learned chief judge at special term, with leave, however, to the plaintiff to amend upon payment of costs.


author: “McAdam J. Per Curiam.

text:
    LEVENIA EHRGOTT, Respondent v. JOHN S. FORGOTSTON, Appellant.

      Injunction, order of, restraining defendant from seizing or interfering with certain personal property covered by a chattel mortgage made by plaintiff to defendant, under the name of “ The Lincoln Loan and Guarantee Company.”
    The so-called company undertook to foreclose the chattel mortgage, and this action was to enjoin the foreclosure on the ground of usury, the plaintiff alleging that the defendant Forgotston was really the lender of the money, and the circumlocutory scheme, by which the so-called company endorsed the notes of plaintiff, and received by the mortgage §105 for endorsing and guaranteeing the same, was a mere subterfuge to hide the offence of usury.

      Held, that there is no such entity as the Lincoln Loan and Guarantee Company. No such corporation nor joint stock company. It is an alluring name to invite the needy. It means the defendant, John S. Forgotston, nothing else, and the mortgagee named, having no legal existence, is mythical, and cannot legally foreclose a mortgage nor authorize others to foreclose it. Nor can defendant Forgotston forceclose it, as the mortgage was under seal and not made to him. To dissolve the injunction might imply that courts look with favor upon 100 per cent, loan and guarantee offices when they are a growing evil calculated to make the poor poorer by engulfing them in debt.
    Before Freedman, P. J., and Gildersleeve, J.

      Decided January 11, 1892.
    Appeal from an order of the special term sustaining an injunction.
    The facts and points in the case fully appear in the opinion of the judge at special term, which was as follows:—
   “McAdam J.

The defendant conducts what he calls the Lincoln Loan and Guarantee Association, and makes loans to persons in financial needs and straits. The plaintiff applied to him for a loan of $300 and this followed : Two notes were made by the plaintiff, one for $100, payable in two months, and the other for $200 payable in four months. The defendant endorsed on the back of the notes, The Lincoln Loan and Guarantee Company, the name under which he does business, and gave the plaintiff a letter to the Mount Morris Bank and that institution discounted the notes at lawful rates and gave the plaintiff $300 less the discount. Before endorsing the notes the defendant took unto the so-called Lincoln Loan and Guarantee Company a mortgage for $405 to secure $300 on the notes and $105 its fees in endorsing and guaranteeing the notes. At maturity the notes were not paid and were taken up by the Loan and Guarantee Company, which now holds them. The so-called company undertook to foreclose the chattel mortgage, and the present action is to enjoin the foreclosure on the ground of usury, alleging that the defendant was really the lender of the money and the circumlocutory scheme a mere subterfuge adopted to hide the offence. It is familiar law that a person may under circumstances similar to those stated loan his credit and charge what he pleases for it (Moore v. Howland, 4 Denio, 264; 1 Edmonds’ Select Cases, 371; Ketchum v. Barber, 4 Hill, 224; Barber v. Ketchum, 7 Ib., 444); and is equally well established that if the transaction (no matter what form it assumes) is a mere device to cover usury, courts will not allow the drapery of form to hide the truth, but deal with the matter in its true light according to the fact. There are circumstances in this case significantly strong which entitle plaintiff to the temporary equitable relief she seeks.

“(1.) The sum charged was outrageously excessive, the plaintiff was imposed upon, advantage was taken of her circumstances, and her worldly goods were mortgaged to make sure the payment of over 100 per cent, interest in addition to principal. At this rate the borrower is verily the slave of the lender.

Clark Bell, for respondent.

Jas. C. de La Mare, for appellant.

(2.) There is no such entity as the Lincoln Loan and Guarantee Company; it is neither a corporation nor joint stock company. It is an alluring name to invite the needy. It means J. S. Forgotston, nothing else, the mortgagee having no legal existence is mythical, cannot legally foreclose a mortgage or authorize others to foreclose it. Nor can the defendant foreclose it as the mortgage was under seal and not made to him.

“ (3.) The name used by the defendant is notice to the world that he makes loans as well as gives guarantees, and it is a question here whether he did not in point of fact make the loan using the bank as his medium or agent merely.

(4.) If the defendant is allowed to foreclose the mortgage the plaintiff’s home will be broken up and an injury done not easily estimated in dollars and cents. On the other hand enjoining the foreclosure until the facts can be determined at the trial can do the defendant no great harm, and he has certainly received enough in the way of interest to compensate him for the delay. The plaintiff has given, security to pay all damages the defendant may sustain and the mortgage continues upon the property as before. To dissolve the injunction might imply that courts look with favor upon 100 per cent, loan and guarantee offices, when they are in fact a growing evil calculated to make the poor poorer by engulfing them in debt. The motion to continue the injunction until the trial will be granted.”

Per Curiam.

The order appealed from is affirmed, with ten dollars costs, and disbursements, upon the opinion of the court below, excepting only the statement “ Nor can the defendant foreclose it as the mortgage was under seal and not made to him and as to the correctness of this proposition no opinion is express.


author: “McAdam, J. Per Curiam.

text:
    FIRST NATIONAL BANK OF CHICAGO, Respondent v. ROBERT J. DEAN, et al., Appellants.

      Warehousemen and warehouse receipts—Warehouses, free and bonded— Responsibility of warehousemen—Transfer of warehouse receipts, their negotiability by endorsement under the statute.

    The plaintiff as the holder of two warehouse receipts issued by defendants, as warehousemen, sought to recover damages for the failure of the defendants to deliver to plaintiff the goods, included in said receipts, after demand for the same.
    The court below submitted certain questions of fact to the jury for a special finding thereon, who found: First—That the plaintiff did, on the faith of the warehouse receipts issued by the defendants, make additional advances to Meade, Von Bokkelen & Go., so that their position would be changed for the worse if not allowed to enforce the receipts according to their legal effect; Second—The injury aforesaid would amount to as much as the value of the goods; Third—The plaintiff believed that the goods were free goods, that is, goods on which the government tax had been paid, and they did act upon that belief in their dealings with Meade, Von Bokkelen & Co.; Fourth—The value of the goods at the time the demand was made for them was $1.542,50. Both parties moved for a judgment on the verdict, and the court having discharged the jury, entertained the motion for judgment and reserved the questions of fact presented by the pleadings and the evidence not passed upon by the jury, and the questions of law, for further consideration and determination by the court; and after-wards the court, having adopted the findings of the jury, did, by the trial judge, make and file its decision with findings of fact and conclusions of law, and direct the entry of judgment for the plaintiff, from which this appeal is taken.
    The court below held, as follows: Warehouse receipts were not negotiable by common law, hut to facilitate their transfer and to aid transactions on the faith thereof, a statute was passed making them negotiable by endorsement (Laws of 1858, chap. 826, § 6). This was designed to protect purchasers and pledgees irrespective of the validity of the transfer as between the immediate parties. Under the provisions of the statute the plaintiff, by the transfer to it of the warehouse receipts as security for present and future advances, became the owner of the goods stored, and entitled to their possession without regard to the equities existing between the preceding holders. The goods represented by the warehouse receipts in this case consisted of brandy, upon which a government tax was due; and if the receipts had indicated that the goods were stored in •a bonded warehouse, the plaintiff would have been chargeable with notice of the act of congress in regard to internal revenue, and it would have become a part of the contract; but these receipts, instead of stating that the brandy was stored in a bonded warehouse, contained, the declaration that they were stored at Numbers 492 and 494 Greenwich street, New York City; and at the head of each receipt is the further declaration that the warehouse, 492 and 494 Greenwich street, is a free warehouse, a phrase which means a warehouse for the storage of goods not liable to or relieved from bonded duties. The representation at the head of the receipts, that the goods were stored in a free warehouse, estops the defendants from claiming, as against the plaintiff (who was a bona fide transferee of the receipts for value), that the brandy was subject to a government upon tax, the familiar principle that where one of two innocent persons must suffer a loss, it must be borne by that one of them who, by his conduct, acts or omissions, has rendered the injury possible. The plaintiff could not, under the circumstances, be-required to pay the government tax as a condition precedent to the right of claiming the goods from the defendants, and the latter were guilty of a conversion of the brandy in imposing that payment as a condition of their delivery. The plaintiff became the owner and holder of the two receipts, and became entitled to the possession of so much brandy stored in a free warehouse, with title unimpaired by equities existing between the prior holders, and the defendants having refused to deliver the brandy to plaintiff are liable for the value thereof.
    Before Freedman, P. J., and Gildersleeve, J.

      Decided January 11, 1892.
    Appeal from a judgment entered upon the special verdict of a jury and the findings and decision of the trial judge at a trial term. The facts and points in the case appear fully in the opinion of the judge at trial term, which was as follows :

      Note: The points of counsel are very full and exhaustive on every feature of this important case, and require more space than can be given in this report, yet deserve special reference to the same on the files of the court.

   “McAdam, J.

Warehousemen are not only responsible for damages which arise by their tortious acts, but sometimes for losses occasioned by the innocent mistake of themselves or their servants. Thus they are liable for making a delivery of goods to a person not entitled to receive them. Story on Bailments, § 414; 2 Am. and Eng. Enc. of Law, 888, 890.

Their business has increased with the evolution of trade and commerce, and their rights and liabilities are defined by custom and by statute, so that they are generally understood by business men. They have for years issued warehouse receipts for goods stored with them, and the transfer thereof from one holder to another has been regarded as a symbolical delivery of the goods. These receipts were not negotiable at common law, for the reason that negotiability only exists in the case of absolute promises for the payment of money, a thing negotiable in itself, and which cannot be reclaimed by the true owner from any one who has received it bona fide and in exchange for a valuable consideration. But chattels personal are wholly unsusceptible of negotiation in themselves, and it was deemed manifestly inconsistent to give the documents which represent them a different character.’ 1 Smith’s L. C., Am. ed., 895, 896.

“ To facilitate the transfer of warehouse receipts, and to aid transactions on the face thereof, a statute was passed making them negotiable by endorsement. (Laws 1858, chap. 326, § 6.) This was designed to protect purchasers and pledgees irrespective of the validity of the transfer as between the immediate parties. Whitlock v. Hay, 58 N. Y., 484. To further protect the public, warehousemen were forbidden to issue receipts or vouchers for goods not actually instore, and it is a penal offence to issue fictitious certificates. (Laws, 1858, chap. 326; Laws, 1866, chap. 440; Penal Code, § 629. Under these provisions the plaintiff, by the transfer to it of the warehouse receipts as security for present and future advances, became the owner of the goods stored, and entitled to their possession without regard to the equities existing between the preceding holders. A lender on collateral security is as much a purchaser for value as if he bought out and out. Roxborough v. Messick, 6 Ohio St. R., 448; 2 Am. Lead. Cas., 235, 5th ed.

“The exigencies of trade called warehouse receipts into being. They are substantially acknowledgments by public or private agents that they have received merchandise from whom or on whose account, and usage has made the possession of such documents equivalent to the possession of the property itself. Thus, warrants or receipts are habitually issued for the merchandise deposited in the various warehouses; and as it is expressly or tacitly agreed that the goods shall be surrendered if the warrant, vouched by the order or endorsement of the owner, is presented, a sale, attended by the transfer of such an instrument, is as effectual as if the property were handed over to the purchaser. This is a mere extension of the rule that when actual delivery is impracticable, a symbol may be substituted for the goods. 1 Smith’s L. C., 8th ed., 1223. The goods represented by the warehouse receipts, in this instance, consisted of brandy, on which a government tax was due; and if the receipts had indicated that the goods were stored in a bonded warehouse, the plaintiff would have been chargeable with notice of the Act of Congress in regard to internal revenue, and it would have become part of the contract. Van Schoonhoven v. Curley, 86 N. Y., 187. The receipts, instead of stating that the brandy was stored in a bonded warehouse, contained a declaration that they were stored at 492 and 494 Greenwich street, New York City, and at the head of the receipts is a further declaration that the warehouse 492 and 494 Greenwich street is a free warehouse—a phrase which means a warehouse for the storage of goods not liable to or relieved from bonded duties.

“ The receipts were issued to Marschall, Spellman & Co., and were by them transferred to the Meade, Yon Bokelen Company, of Chicago, Illinois, and that company at Chicago, aforesaid, transferred them to the plaintiff as security for present and future advances; and the plaintiff, upon receiving the transfers, made fresh advances, exceeding the value of the property represented by the warehouse receipts. The jury so found, and the evidence sufficiently sustains their finding. The representation at the head of the receipts, that the goods were stored in a free warehouse estops the defendants from claiming as against the plaintiff a bona fide transferee of the receipts, that the brandy was subject to a government tax, upon the familiar principle that where one of two innocent persons—that is, persons each guiltless of an intentional wrong, must suffer a loss, it must be borne by that one of them who, by his conduct, acts or omissions, has rendered the injury possible. (Pomeroy, Eq. Jur., vol. 2, § 803.)

Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person who has, in good faith, relied upon such conduct, and has been led thereby to change his position for the worse, and who, on his part, acquires some corresponding right, either of property, of contract or of remedy, (lb., § 804.)

“ To constitute such an estoppel, the following elements are essential: (1). There must be conduct—acts, language or silence—amounting to a representation or a concealment of material facts. (2). These facts must be known to the party estopped at the time of his said conduct, or, at least, the circumstances must be such that knowledge of them is necessarily imputed to him. (3). The truth concerning these facts must be unknown to the other party claiming the benefit of the estoppel at the time when such conduct was done, and at the time when it was acted upon by him. (4). The conduct must be done with the intention, or, at least, with the expectation that it will be acted upon by the other party; or under such circumstances that it is both natural and probable that it will be so acted upon. (5). The conduct must be relied upon by the other party, and thus relying he must be led to act upon it. (6). He must in fact act upon it in such a manner as to change his position for the worse. (75., 805.)

" The acts of the defendants contain all the ingredients necessary for an estoppel, and the jury found against the defendants on all the facts required to make the estoppel effectual. In a free warehouse, the warehouseman is the sole custodian of the goods, and w'hen his charges are paid the owner is entitled to them. In a bonded warehouse the goods are in the joint custody of the proprietor thereof and a storekeeper assigned to it by the government (R. S. of U. S., § 3274); and, in order to get the goods out, the owner must settle with both the warehousemen and the government. (For an interesting account of the origin and growth of the warehouse system in England and the United States, see 2 Kent’s Com., 11th ed., 737.) The plaintiff could not, under the circumstances, be required by the defendants to pay the government tax as a condition precedent to the right of claiming the goods from the defendants, and the latter were guilty of conversion in imposing that as a condition to their delivery.

“ Counsel have discussed at length the question, whether the Illinois or the New York rule is to govern in determining whether the plaintiff is a bona fide transferee of the receipts for value. Under the Illinois rule, one who takes a negotiable instrument in good faith in payment, or as collateral security for the payment of an antecedent indebtedness, parts with such value as entitles him to all the rights of one who purchases a negotiable instrument for a present consideration without notice of existing equities. Manning v. McClure, 36 Ill., 499; Butters v. Haughwout, 42 Ib., 18. The goods were stored in New York; the contract was made in that state and was to be performed there, and the plaintiff is in the forum of that state seeking to enforce the obligation against the defendants, who reside there, so that both the lex loci and lex fori unite in . requiring the rights and obligations of the parties to be determined exclusively by the laws of this state. Hallgarten v. Oldham, 135 Mass., 1; Guillander v. Howell, 35 N. Y., 657; Loftus v. Bank, 135 Penn. St., 97; Keller v. Paine, 107 N. Y., 83; Warner v. Jaffray, 96 Ib., 248; Dickinson v. Edwards, 77 Ib., 573; Wayne Co. Bank v. Low, 81 Ib., 566. It cannot be that if a negotiable obligation, made in this state, is then re-transferred for a precedent debt, the transferee is not a bona fide holder to shut out equities in favor of the maker; and yet if the obligation is transferred in Illinois, to a resident of that state, our courts must ignore the rule adopted in this state, and follow that prevailing in Illinois, and shut out the equities. Any such doctrine would be an unjust discrimination in favor of non-residents against residents of our own state inconsistent with every principle of comity or notion of uniform justice,. and cannot prevail. As against the Meade, Yon Bokelen Company, its obligation might, in a proper action, be determined by the laws of Illinois, because its indorsement (which is, to an extent, an independent contract) was made and delivered there, and it cannot object that its obligation is determined according to the law of the place where it was entered into. Story Conf. of Law, § 287a ; Weil v. Lange, 6 Daly, 549; 2 Am. and Eng. Enc. of Law, 329, 330. Under the finding of the jury, which is satisfactorily sustained by the evidence, the plaintiff became a bona fide owner of the warehouse receipts, under the laws of this state, as declared in Coddington v. Bay, 20 John., 637, and kindred cases, so that it is of little practical moment whether the Illinois or the New York rule is to control.

Peckham & Tyler, attorneys, and Charles A. B. Pratt of counsel, for respondent.

Hatch & Warren, attorneys and of counsel, for appellants.

The plaintiff became the owner and holder of the two receipts, and entitled to the possession of so much brandy stored in a free warehouse, with title unimpaired by equities existing between prior holders. The defendants having refused to give up the brandy are liable for the value thereof, as assessed by the jury, $1,342.50, with $98.50 interest thereon, making together $1,441; and for this amount the plaintiff is entitled to judgment.”

Per Curiam.

The judgment is affirmed, with costs,. on the opinion of the court below.


author: Per Curiam.

text:
    MARY CLUFF, Respondent v. HENRY S. DAY, et al., Appellants.

      Action on oficial bond—TF7ien complaint defective in failing to allege jurisdictional facts and proceedings in surrogate’s court.

    In an action brought under section 2609 of the Code of Civil Procedure against the sureties upon a bond to secure the faithful performance of his duties given by an executor and filed in the office of the surrogate of New York county, the complaint alleged the interest of the plaintiff, the probate of testator’s will, the issue of letters testamentary to the executor, a non-resident of the state, and the bond previously given thereon, proceedings in the nature of an accounting in the surrogate’s court in the year 1873 wherein by decree said executor was directed to retain and invest pursuant to the provisions of the will the sum of $12,222.98 (subsequently reduced by amendments to the decree to $10,937.98), proceedings in the surrogate’s court in the year 1886 wherein plaintiff and her children and said executor were parties, and wherein a decree was entered on September 30,1886 “ as amended nunc pro tunc by order October IS, 1886,” adjudging said executor as chargeable with $10,037.98, directing him to deposit said sum and the further sum of $868.04 with the chamberlain of the city of New York, and revoking the letter testamentary granted him. The complaint further set forth the facts as found by the referee in the proceedings to remove said executor, showing failure on his part faithfully to execute the trust reposed in him as such executor and to obey the orders of the surrogate touching the administration of the fund committed to him, and consequent injury to the estate of the testator to the extent of $10,906.02 with interest from September 30, 1886. Due demand of said executor and of the defendants was alleged of said amount, also that no successor to said executor had been appointed, and that leave to maintain the action had been obtained by order of said surrogate’s court pursuant to section 2609 of the Code of Civil Procedure.
    Upon the trial the objection was taken that the complaint failed to allege that the surrogate had jurisdiction to entertain the proceedings instituted in 1886 to remove the executor, or that the orders mentioned in the complaint were duly made, and further that there was a failure both to allege and to prove that the surrogate had jurisdiction to make the order of October 18, 1886, amending nunc pro tunc the order of September 30, 1886. The trial judge received in evidence the record of the proceedings in the surrogate’s court overruling defendants’ objections, and directed a verdict for the plaintiffs, defendants’ exceptions to be heard in the first instance at the general term. Held, that the complaint was defective in failing to allege in terms that the surrogate’s court had jurisdiction, and that the decrees in the removal proceedings were duly made.
    Before Dugro and Gildersleeve, JJ.

      Decided January 11, 1892.
    A verdict for plaintiff was directed at the trial term5 and the exceptions were ordered to be heard in the first instance at the general term. The character of the action is set forth in the head note.

      Charles E. Wilson, attorney for appellant Day, and Isaac’ Fromme, attorney for appellant Thompson, argued:—
    I. The objections were sufficiently raised upon the trial. The objection is stated in the language permitted, by the Code of Civil Procedure for the statement of a demurrer and it is distinctly stated that plaintiff had failed to allege the jurisdiction of the surrogate’s court. The position taken by defendants and argued extensively at the trial on both motions to dismiss was that the plaintiff had failed to allege the jurisdiction of the surrogate’s court. Defendants contended that the surrogate’s court, being a court of limited jurisdiction, it was necessary that plaintiff should either allege in her complaint the fact which gave the court jurisdiction or allege that the decrees or determinations of the court were duly made (Code Civ. Pro., § 532). It is very evident that plaintiff’s counsel understood this objection, for in his brief used on the argument, he says : “It was not necessary for plaintiff to state that the decree was duly made in the language of § 532 of the Code, as she took the other alternative and alleged the facts conferring jurisdiction.” Defendants contended that plaintiff had not followed either of these methods. It is also evident that the court at trial term understood the objection, for in answer to plaintiff’s motion the court says : “ Jurisdiction sufficiently appears from the proceedings that have been put in evidence.” The cases cited by plaintiff on this point do not apply. In each of them the objection was so general that its meaning was ambiguous and none of them had reference to the dismissal of a complaint for insufficiency. The Code (§ 499) sets forth two classes of objections to a complaint which may be raised on a trial and refers to another section on demurrer (§ 490) where they are specified, and that section provides that the objection must be distinctly stated, but that they may be stated in the language of the statute. The cases under the old code deciding how a demurrer should he stated are more nearly in point (Haire v. Baker, 1 Seld., 357; Getty v. H. R. R. B. Co., 8 How., 177; Hoagland v. Hudson, Ib., 343; Hulbert v. Young, 13 Ib., 413) as the provision in the Code of Civil Procedure as to how a demurrer should be stated was not in the former code.
    II. It was not obligatory upon defendants to point out this specific objection. In the event that this court at general term should hold that the jurisdiction of the surrogate to make the original decree of 1886 was proved on the trial, though not alleged (defendants contending that it was neither alleged nor proved) it was argued that there was at least no proof of the jurisdiction of that court to make the order of amendment. This objection was raised on the argument at general term only by way of anticipation. Defendants presumed that plaintiff would endeavor to show that even though his complaint was insufficient, this defect was cured by the evidence before the court, following Lounsbury y. Purdy, 18 N. Y., 515, which held that where the complaint omits facts essential to a cause of action, but which might be supplied by amendment before or after judgment, and these facts are proved at the trial after the judge has refused to dismiss the complaint, the defect of statement is no ground for appeal. It was with this principle of practice in view defendants contended at general term that plaintiff had neither alleged jurisdiction nor proved jurisdiction. Plaintiff annexes to his complaint a decree of the surrogate’s court amended nunc pro tunc as a part thereof, and depends upon the recitals therein contained for his allegations of jurisdictional facts. But recitals in a judgment or decree of a court of limited jurisdiction are simply prima facie evidence of jurisdiction, Wright v. Nostrand, 94 N. Y., 31; Agricultural Ins. Co. v. Bernard, 96 Ib., 526. They are only evidence, not allegations of the facts themselves. It is necessary that plaintiff should allege facts and not merely the evidence of facts. Bogardus v. N. Y. Life Ins. Co., 101 N. Y., 328; Russell v. Clapp, 7 Barb., 482; Mann v. Morehead, 5 Sandf., 557; Miliken v. Cary, 5 Hun, 272. The criterion in every such case is whether the allegations in question can be made the subject of a material issue. Williams v. Hayes, 5 Barb., 470. Even though the recitals in the decree of 1886 might be sufficient to establish the jurisdiction of the surrogate’s court they do not of themselves put in issue this jurisdiction, but they only tend to prove it when put in issue by proper allegations. In the recent case of Rio Grande W. R. R. Co. v. Rothschild, 20 Civ. Pro., 197, the general term of the Supreme Court held that “ the law of a foreign statute is a fact to be alleged. It is not necessary to plead the evidence of the fact whether such evidence be embodied in the statutes of the foreign state or in the decisions of the courts. But the fact that a given proposition is the law must be stated if such fact be essential to a recovery.” Plaintiff should have amended his complaint, but this he declined to do, and his only remedy left was to bring such evidence before the court at the trial as would warrant the court at general term in overlooking the defects in the pleading. Lounsbury v. Purdy, supra. But there is no such evidence properly in the case. The admissions in the answer of defendant Day are admissions only of the facts pleaded and not of mere controvertible evidence of facts which may happen to be referred to in the complaint, and as plaintiff did not allege in any manner the jurisdiction of the surrogate’s court there is no evidence of such' facts as to defendant Day before the court. Plaintiff expressly states that the decree of 1886 which contains the recitals is not put in evidence as against defendant Day. Defendant Day admits certain allegations contained in the complaint, but this cannot be construed as an admission of that which is not alleged, N. C. Bank v. Wescott, 118 N. Y., 468. The decree was offered in evidence as against defendant Thompson, and objected to by him on the ground that the surrogate had not jurisdiction to make it and exception taken, so that as against defendant Day there is no evidence whatever in the case of the jurisdiction of the surrogate’s court to make either the original decree or the amendment nunc pro tunc, and the defendant Thompson has protected himself against the evidence by a valid exception. Defendants moved to dismiss on the ground of the insufficiency of the complaint and on the ground that the evidence did not show the jurisdiction of the court. The defendants are not liable on a decree of the surrogate’s court unless the surrogate had jurisdiction to make it, and as has already been shown this jurisdiction must be pleaded by plaintiff, and if controverted must be proved, neither of which was done in this case. The burden of proving the jurisdiction of the surrogate was on the plaintiff. Roderigus v. E. R. S. Bank, 43 Supr., 217, affirmed, 76 N. Y., 363; Westervelt v. Westervelt, 46 Supr., 303; Re Hawley, 104 N. Y., 262; Cornell v. Barnes, 7 Hill, 35; Turner v. Roby, 3 Com., 193. The principles set forth in Lounsbury v. Purdy (supra) do not apply to this case for defendant moved to dismiss at the opening of the trial, and did not waive it upon the trial, for no evidence was offered on this point against defendant Day, and to what was offered against defendant Thompson exception was duly taken and the motion to dismiss was renewed at the close of the trial. In such a case it is the legal right of defendant to have the complaint dismissed. Tooker v. Arnoux, 76 N. Y., 397.
    III. Plaintiff has no right in this case to introduce the records of the surrogate’s court first at general term in order to prove that the surrogate had jurisdiction to make the order of amendment. If plaintiff had sought to introduce the evidence of jurisdiction on the trial, it would have been objected to on the ground that it was not pleaded, and if then admitted defendants would have had an exception, but if admitted first at general term, defendants can neither object nor except. The recitals in a decree or order are only prima facie evidence, {supra) the proof of the sufficiency of a citation, of notice and of the petition and jurisdiction of the person and subject matter are all controvertible. It is all evidence that must be weighed by the court, and upon its admission it must be decided whether its sufficiency establishes jurisdiction. If this record evidence should be received the defects in the pleading and proof would not be removed.

      Robert Owen, attorney, and Edward B. Whitney of counsel, for respondent, argued :—
    I. Defendants on the argument of the appeal raised a point which was not raised at the trial: namely, that plaintiff should have shown affirmatively that the surrogate had the right to amend the decree of 1886 nunc pro tunc. We understand them to raise this point under their general motion to dismiss the complaint for lack of proof. This, like defendants’ other points, raises a mere question of irregularity or error, which cannot be collaterally considered in this court.
    II. Such a point cannot be raised for the first time on appeal. If the absence of a necessary document from plaintiff’s proof is relied upon by defendants under a general motion to dismiss, they must show affirmatively that the defect could not have been obviated if specified at the time of the motion. Binsse v. Wood, 37 N. Y., 526; Isham v. Davidson, 52 Ib., 237; Thayer v. Marsh, 75 Ib., 340; Sloman v. Great Western Ry. Co., 67 Ib., 208; Althouse v. Wells, 40 Hun, 336.
    III. The original papers now produced show the amendment to have been a mere resettlement, changing a matter of detail for the benefit of defendants’ principal, and entirely within the power of the surrogate under Code Civ. Pro., § 2481, subd. 6. These papers may properly be considered by the general term.. The rule allowing the introduction of evidence upon appeal in support of the verdict below applies to all matters of record or other documentary evidence of an indisputable character. Dunham v. Townshend, 118 N. Y., 281, and cases cited; Burnham v. Brennan, 42 Super., 49.
   Per Curiam.

Defendants’ exceptions were ordered to be heard in the first instance at general term.

The complaint neither states the facts conferring jurisdiction upon the surrogate nor alleges that the decree and amending order referred to in the complaint were duly made, and in this is bad, § 532 Code Civil Procedure.

While as to defendant Thompson it might not be improper to amend the pleading so as to conform to the proof, as the decree was not put in evidence against Day, it is best that the exceptions should be sustained and that there should be a new trial—costs to abide the event. Ordered accordingly.


author: By the Court.—McAdam, J.

text:
    FREDERICK P. FORSTER, Plaintiff v. DAVID SCOTT, Defendant.

      Case agreed upon in a controversy and submitted for decision to the general term pursuant to section 1279 of the Code and the sections following thereto.

    The plaintiff and defendant, on June 18, 1891, entered into contract by which the plaintiff agreed to sell and the defendant agreed to buy a piece or lot of land, described in the contract of sale, subject to a mortgage for $4,000 in favor of one Julia M. Scarlett. The premises were to be conveyed by a good title, free from any lien or encumbrance except said mortgage. A deed was duly tendered but refused by defendant, on the ground that there was a lien or encumbrance on the .property besides the Scarlett mortgage arising out of the facts set forth in the case submitted, and the plaintiff claims that no lien or encumbrance exists thereby. Whether or not there is such a lien or encumbrance is the question in difference between the parties submitted to the court.
    The following additional facts and questions appear in the submitted ease. On or about October 18, 1890, the department of public parks in the city of New York, duly filed a map of a proposed avenue or street in the twenty-third ward of the city of New York, pursuant to chapter 681 of the laws of 1886, in the office of the said department of public parks, in the office of the register of the city and county of New York, and in the office of the secretary of state, and each of said maps remains of record in the office where the same was filed. Said maps were made out, filed, executed, acknowledged, certified, in all respects as required by chapter 681, Laws of 1886, section 672 of the Consolidation Act, and the amendment thereto, chapter 530, Laws of 1885, and all other acts relating to the department of public parks and its powers in regard to the streets in the 23rd and 24th wards, which are hereby made a part of this case. All the requirements of said acts now in force were in all respects complied with by the department of public parks in filing the map aforesaid. On the said map the department of public parks laid out a street or avenue of the first-class which covers the whole of plaintiff’s lot.
    Section 673 of the Consolidation Act, and all other acts which provide for the opening of streets or avenues in the 23rd and 24th wards and which confer powers in regard to streets or avenues in the 23rd and 24th wards on the department of public parks, or on the commissioner of street improvements of the twenty-third and twenty-fourth wards, and particularly Consolidation Act, § 671 as amended by chapter 487, Laws of 1887; § 672, as amended by chapter 530, Laws of 1885, § 674; sections 677 and 958, and chapter 545, Laws of 1890, are hereby made a part of this case. By sections 677 and 958 of the Consolidation Act, it was provided, among other things, that when proceedings were taken to open any of the streets laid down on maps as provided in the laws already referred to “ No compensation shall be allowed for any buildings, erection or construction which at any time subsequent to the filing of the maps, plans or profiles mentioned in section 672 of this act, may be built, erected or placed in part or in whole upon or through any street, avenue, road, public square or place exhibited upon such maps, plans or profiles.”
    No proceedings have ever been taken to open the street or avenue laid out as aforesaid across the plaintiff’s lot, or to acquire the plaintiff’s land by condemnation proceedings, no building is erected thereon, and the same is a vacant lot which derives almost its entire value from the possibility of being used for building purposes. If the lot cannot now be built upon without the house being destroyed without compensation in the event of the street being opened as prescribed by the statutes above set forth, the lot is not worth what defendant agreed to pay, whereas if it can be used for building purposes it is worth at least $5,000.

      Upon this state of facts, maps having been filed for streets or avenues of the first class covering the entire lot and the requirements of the law having been in all respects complied with, the defendant claims that under the statutes relating to the subject and particularly sections Gif and 95S of the Consolidation Act, the filing of the said maps creates a lien or encumbrance upon the said lot, in that it prohibits the erection of any building thereon under penalty of having no compensation made for such building, if the city should thereafter acquire the property by condemnaíio 1 proceedings; and the plaintiff claims that the said statutes so far as they prohibit the erection of any building thereon under penalty of having no compensation made for such building, if the city acquires the land by condemnation proceedings, are unconstitutional and void because (1) they deprive the plaintiff of his property and liberty without due process of law, in violation of the constitutions of the state of New York and the United States; (2^ they take the plaintiff’s private property for public use without just compensation, in violation of the constitution of the state of New York; and (3) they deprive the plaintiff of the equal protection of the laws, in violation of the constitution of the United States.
    Upon these facts the questions submitted to the court are: 1st. Are the provisions of the said statutes and particularly sections G77 and 958 of the Consolidation Act, that if any building is erected on a street laid down on a map filed by the department of public parks, no compensation shall be awarded for such building if the land on which it is erected is subsequently acquired by the city for the street or avenue laid out upon it in condemnation proceedings, unconstitutional and void ? 2nd. Is there a lien or encumbrance on the plaintiff’s lot created by said statutes ?
    If the first question is answered in the affirmative and the second in the negative, the judgment is to be rendered in favor of the plaintiff and against the defendant, that the defendant take the title tendered by said deed of said lot and pay the sum of §1,000, without costs.
    If the first question is answered in the negative, and the second in the affirmative, judgment is to be rendered in favor of the defendant, without costs.

      Held, that the statutes under which the map of the contemplated street opening was filed are constitutional. The statutes in question do not attempt to regulate private property, and do not interfere with the use thereof. The filing of the map is merely notice, to whom it may concern, of an intention to open a street at a place indicated. It does not divest the owner of his title to the property, nor in any way encumber or impair it until the proceedings pirovided by the statute have been taken for the purpose of condemning the premises, and these proceedings may never be taken and the streets laid down by the map may never be opened for public use. The title is in no wise impaired, for the owner of the property may use it as he pleases for any legal purpose to which it may be devoted. If, however (after the notice arising from the filing of the map), he voluntarily changes the property by putting an artificial structure or value upon it, he does so at his peril, and may have difficulty in compelling the corporate authorities to reimburse him for the expenditures so made. The constructive notice affects all whom it may concern, owners, mortgagees and purchasers alike. It is matter of public concern, and is not a fact that the owner is bound to communicate to a purchaser, nor is its suppression fraudulent. The filing of the map is in no manner nor to any extent, a defect of title, or a cloud on the title, nor an encumbrance. It is not a claim antagonistic to the owner, but in harmony with and in recognition of his title. The plaintiff had good title to the property he contracted to convey. There is no lien or incumbrance on it created by the statutes, and the plaintiff is entitled to judgment that the defendant take the title tendered, and pay the sum of §1,000, with costs, according to the terms of the submission.
    Before Freedman, P. J., McAdam and Gildersleeve, JJ.

      Decided January 15, 1892.
    Case agreed upon in a controversy submitted without action, pursuant to section 1279 of the Code.

      Forster & Speir, attorneys, and Henry A. Forster of counsel, for plaintiff.

      Rollin H. Lynde, for defendant.
   By the Court.—McAdam, J.

The acts under which the map of the contemplated street opening was filed are constitutional, because relating to the exercise of the power of eminent domain, which implies that private property shall not be taken without just compensation.” Const. Act 1, § § 6, 7. This is in accord with the rulings in the Furman St. case. In re Furman street, 17 Wend., 649, approved of by the Court of Errors, and in the 127th St. case, 56 How., 60. The filing of the map is a preliminary step in the exercise of the right of eminent domain, that may or may not proceed further. The right of the public to exercise such authority and to condemn land for roads, streets and highways has never been denied. It is as Puffendorf calls it, the “ exercise of transcendental propriety ; ” as if the Sovereign thereby resumes possession of that which had been previously granted to the subject upon the condition that it might be again resumed to meet the necessities of the Sovereign.—Puffendorf, B. 8, C. 5, § 3; Fletcher v. Peck, 5 Cranch, 87. The acts in question do not attempt to regulate private property, and do not interfere with the use thereof. The filing of the map is merely notice, to whom it may concern, of an intention to open a street at a place indicated. It does not divest the owner’s title, and in no way incumbers or impairs it, until the proceedings provided by the statute have been taken for the purpose of condemning the premises, and these proceedings may never be taken and the streets laid down by the map never opened for public use. Wagner v. Perry, 47 Hun, 518; In re Dept. Public Parks, 60 N. Y., 319. To hold the title divested or impaired by the fifing of the map, would imply a present right to compensation for the supposed injury, a claim which would be both premature and untenable. The title is in no wise impaired, for the owner of the property may use it as he pleases (notwithstanding the. fifing of the map) for any legal purpose to which it may be devoted. If, however (after the constructive notice arising from the fifing of the map), he voluntarily changes the property by putting an artificial structure or value upon it, he does so at his peril, and may have difficulty in compelling the corporate authorities to reimburse the expenditure so made. Whether paying for the land, without the improvements made after the fifing of the map, is “ just compensation ” within the meaning of the constitutional provision on the subject, is a question which will more appropriately arise when the issue as to compensation comes up. It is not directly before the court now. The constructive notice arising from the filing of the map, affects all whom it may concern, owners, mortgagees and purchasers alike. It is matter of public concern. It is not a fact the owner is bound to communicate to a purchaser, nor is the suppression of it fraudulent. Wagner v. Perry, supra. The filing of the map is in no manner nor to any extent, a defect of title, cloud on the title or incumbrance. It is not a claim antagonistic to the owner, but in harmony with and in recognition of his title. • If the property should eventually be taken (as any private property may for public use), the “just compensation ” which must be awarded will presumably be equivalent to the property taken, and there will consequently be no loss to any one. If the purchaser sees fit to add an artificial value to the property by building upon it, he has the right to do so—no one can restrain him— the property will he his to do what he pleases with. If the street is ultimately cut through, he may claim compensation for his improvements, and if it is disallowed, he will then be in a position to test the constitutionality of those portions of the acts which provide no compensation for erections made after the filing of the map. Those questions do not call for authoritative decision now.

If the plaintiff had built upon his lot after the filing of the map, and had contracted to convey both house and lot, a serious question would have been presented whether it would not be too inequitable to compel the vendee to take, Pomeroy’s Eq. Jur., §§ 1404, 1405, but that question does not arise here, as the lot is vacant and unimproved.

The sale was not made by order of the court, but by voluntary contract of the parties, and the plaintiff is entitled to have it enforced unless objections more substantial than have appeared here are presented against the application. We deem it sufficient for the present to decide (1.) that for the purposes of this case as submitted, the statutes under which the map was filed are constitutional, and that the plaintiff has good title to the property he contracted to convey; (2.) that there is no lien or encumbrance on it created by the statutes to which our attention has been called; and (3.) that the plaintiff is entitled to judgment that the defendant take the title tendered, and pay the sum of $1,000 without costs, according to the terms of the submission.

Freedman, P. J., and Gildersleeve, J., concurred.


author: By the Court.—Gildersleeve, J.

text:
    RICHARD WILLIAMS, et al., Respondents v. DANIEL BOEHAN, et al., Appellants.

      Contract for mason and iron work in changes and alterations in premises, failure to perforin—Damages.

    Defendants contracted with the plaintiffs to do all the mason and iron work in certain premises in the city of New York, in accordance with plans and specifications submitted by architects, for $5,821. Defendants commenced the work but afterwards abandoned the same on the grounds that the drawings given them to estimate upon and upon which they did estimate the work, were changed in the detailed or working drawings so as to materially increase the amount of work to be done, and they refused to do the work on these changed drawings. Plaintiffs procured the work done at a price in advance of that named in the contract, and bring this action to recover that advance and other causes of damage. Defendant set up as a counter-claim the cost or value of the work done by them, for $114.15. The trial judge refused to submit to the jury the counter-claim of the defendants, and the jury found a verdict for the plaintiffs for $800.

      Held, that the defendants had a right to refuse to continue under the contract if the work which the plaintiffs required under the “ working plans ” was substantially different from that submitted to them, and upon which they had made their estimates. If the defendants could have established this, there was no breach of contract on their part, and they were entitled to recover under their counter-claim. The question of a substantial variance between the first drawings or plans and the working plans or drawings, were submitted to the jury. Their verdict depended upon the conclusion they reached as to the question of variance, and they found for plaintiffs. The defendants were entitled to have their counter-claim submitted to the jury for its determination, and it was error for the trial judge not to submit the same, but, in view of the facts established by the verdict, the error is not available to defendants. The verdict established that there was no substantial variance, and that defendants were not justified in abandoning their contract, and from this it follows that the jury never reached the question relating to the counter-claim, and that had they been correctly' instructed in regard to it, they would have been bound to disallow it.
    Before Freedman, P. J., and Gildersleeve, J.

      Decided January 29, 1892.
    Appeal from a judgment entered upon the verdict of a jury, and from an order denying defendants’ motion for a new trial.

      Lachman, Morgenthau & Goldsmith, attorneys, and Sampson Lachman of counsel, for appellants.

      M. Owen Roberts, attorney, and Scott Lord of counsel, for respondents.
   By the Court.—Gildersleeve, J.

This action was brought to recover damages for the breach of a building contract. Messrs King & Small, architects, at the request of plaintiffs, had prepared plans and specifications, setting forth the character and extent of the mason and stone work required to be done. These plans and specifications were given into the possession of the defendants to enable them to estimate the cost of the work, and make a bid therefor. The defendants had no other information as to the nature of the work or materials necessary for the same. Their estimate was based thereon, and they agreed with plaintiffs to do the work for $5,827, in accordance with said plans and specifications.” The work consisted of alterations for the purpose of changing certain dwellings into stores. The defendants entered upon the performance of their contract by commencing to take down the fronts of the dwellings and doing such preliminary work as was necessary before the work of reconstruction called for by the plans and specifications began. When the value of the work thus done had reached the sum of $114.15, as defendants claim, the defendants refused to continue the work and complete the contract. At this stage of the work, but prior to such refusal, the detailed drawings ” or “ working plans,” prepared by the architects, were placed in the hands of the defendants. The defendants claimed there was a substantial variance between the working plans ” and the elevation plans,” upon which they had estimated ; that the working plans ” called for two inches higher sills, an addition of four to four and a half on the cornices, and other variations involving much greater expense, whereby the value of the work was increased $950. The plaintiffs insisted upon the defendants working according to the plans as altered, and performing the extra work as part of their original contract, without extra compensation. This the defendants refused to do, for the reasons above stated, claiming that this insistance of the plaintiffs was an attempt to arbitrarily modify the agreement, without defendants’ consent. The plaintiffs procured other parties to do the work at a cost over and above the contract price with the defendants of $923, and brought this action for a breach of contract, setting up the said sum of $923, as the measure of damages. The answer is a substantial admission of the agreement, an averment that the defendants entered upon the performance of the work thereunder, and an allegation that the drawings given to them to estimate on, called the front elevation plans,’ were changed in the detailed or working drawings,’ so as to materially increase the amount of work to be done,” and sets up a counter-claim of $114.15 for work done prior to their abandonment thereof. To this counter-claim the plaintiffs duly replied. The trial proceeded for the purpose of determining the rights of the plaintiffs to the former sum, or any part thereof, and the rights of the defendants to the latter sum, or any part thereof.

The defendants had a right to refuse to continue under their contract, if the work which the plaintiffs required under the “ working plans ” was substantially different from that which had been submitted to them and upon which they made their estimate. If the defendants could establish this, there was no breach of contract on their part, and hence no cause of action in the plaintiffs; and if this right to abandon their contract was satisfactorily established by a preponderance of evidence, the defendants were entitled to recover under their counter-claim. Was there a substantial variance? This ‘disputed question was submitted to the jury by the learned trial judge, with perfect fairness to the litigants, and with .a -concise, clear and accurate statement of the law applicable thereto. The jury were at liberty to, and under the evidence properly could, render a verdict for either the plaintiffs or defendants. Their verdict under the charge, which we have already said was correct in this respect, depended upon the conclusion that they reached as to the degree of variance. The jury found .in favor of the plaintiffs, and assessed the damages at $800. ....

.... But the learned trial judge, in his charge to the jury on the question of defendants counter-claim, used the following language: " So far as the defendants’ counter-claim is concerned, it seems to me that when they discovered that these plans were different from what they supposed they were, if they did discover that, that they had what is called in law a locus jocenitentice —place for repentance—had time for repentance : they could either go on with the contract, or go off. They chose to go off; so I think that is about the end of their counter-claim, and the question gets right back to this question of whether the variations were material,” etc. The defendants duly excepted to this portion of the charge, and also to the refusal of the learned judge to submit the counter-claim to the jury.

On the disputed question as to the degree of variance, the learned judge said in his charge to the jury : If you find that there was a material and substantial difference, one not justified by the usages and customs of the trade, and that the defendants and their sub-contractors were in consequence deceived to their injury—induced to take a job and make a bid they never would have taken or given—the defendants had the right to withdraw from their contract, and are entitled to a verdict, in their favor.”

The defendants were entitled in this connection to have their counter-claim submitted to the jury for determination. The court should have instructed the jury substantially as follows: That in the event of their reaching the conclusion that there was a substantial variance between the “ working plans ” and the elevation plans,” and therefore that the defendants were justified in abandoning their contract, that it would then be their duty to determine the defendants’ right to the counter-claim.

It was error, therefore, on the part of the trial judge to refuse to submit to the jury the question arising upon the counter-claim, as herein stated. But in view of the facts established by the verdict, the error is not available to the defendants. The verdict established that there was no substantial variance, and that the defendants were not justified in abandoning their contracts. From this it follows that the jury never reached the question relating to the counter-claim ; and that, even if they had been correctly instructed in respect to it, they would have been bound to disallow the counter-claim.

The judgment and order appealed from are affirmed, with costs.

Freedman, P. J., concurred.