text:
    Mary Talbot, Appellant, v. Stephen Van Rensselaer Cruger and Others (Composing the Firm of S. Van Rensselaer Cruger & Co.) and Daniel Coffey, Respondents.

      Release of property induced by fraud — maintenance of an action for dmnages, without setting aside the release.

    When a party lias been induced by fraud to execute an instrument purporting to release or surrender bis property to another, to his damage, he may, upon the discovery of the fraud, instead of proceeding to have the instrument set aside ■ and to recover the property, treat the instrument as actually surrendering the property and maintain an action directly against the party whose fraudulent conduct has induced the execution of the instrument, to recover the damages resulting' from the fraud.
    The maintenance of such an action at law to recover damages sustained by reason of the fraud practiced in ebtaining an instrument of release of property, as distinguished from an action brought to recover the property released and from the case in which the cause of action has been released, is not barred by the existence of the release on which the action is founded, and it is not a prerequisite to the maintenance of such an action that the release be first set aside on the equity side of the court.
    Appeal by the plaintiff, Mary Talbot, from judgments- of the Supreme Court in favor of the several defendants, entered in the office of the clerk of the city and county of New York on the 1st and 4th days of March, 1893, respectively, upon a dismissal of the complaint ordered at the New York Circuit.

      J. Baldwin, Hand, for the appellant.

      Henry H. Mw%, for the respondents.
   Parker, J.:

The complaint alleges in substance the making of an agreement between Hyland and Field, by which certain buildings to be erected by Hyland on Field’s land, should be jtersonal property; their erection by Hyland in pursuance of such agreement; a subsequent sale of such structures to the plaintiff; thereafter the conveyance of the lands on which the buildings were situated to the defendant Coffey; the execution and delivery by the plaintiff of a writing in form surrendering to the defendant Coffey, for a consideration of twenty-five dollars, such buildings.

The plaintiff charges that the execution and delivery of this writing was procured by the fraud and deceit of the defendants.

She avers that the defendants, other than Cofffey, represented to her that they were the agents of Coffey, in respect to the land upon which her buildings were situated, and requested her to accept a new lease from Coffey on the same terms on which she had leased the lands from the prior owner, and that she acceded to the request.

That subsequently a letter was received from the defendants, directed to the plaintiff and her husband, which read as follows: Mr. & Mrs. Talbot: ¥e have a lease ready for you to sign, if you both will call at this office,” which letter was signed by the defendants Cruger & Co.

In response to the letter, she visited the defendants’ office, and was there presented with a paper for signature, which the defendants represented to her was a lease of the land of Coffey. Being unable to read or write, she was wholly dependent-upon the representations of the defendants. And believing the paper to be a lease as represented, she executed it by making her mark.

She further avers that shortly thereafter, and about the 14th day of July, 1891, Coffey commenced a proceeding in a District Court to dispossess her; plaintiff answered therein, 'not disputing title of Coffey to the land, but claiming the ownership of the structure, and the right to remove the same.

The trial took place on the twenty-first day of July following, at which time Coffey produced, and put in evidence in his own behalf, the release which plaintiff asserts she was fraudulently induced to sign, and then for the first time she learned the true character of the paper which she had executed.

In pursuance of a judgment of the court thereafter rendered, plaintiff was deprived of the possession of the jiremises, including the buildings and structure, which she had purchased from Ilyland.

By reason thereof, the complaint alleges that the plaintiff sustained damages, and judgment therefor is demanded against the defendants.

The cause being moved for trial at- a Circuit Court, a jury impanelled, and the case opened to the jury by plaintiff’s counsel, a motion theretofore made to dismiss the complaint rvas renewed, and the complaint dismissed on the opening on the ground that the release barred a recovery.

It was tlie view of the court that the release, if fraudulently procured, should be first set aside before damages could be recovered. That until it should bo declared void and of no effect by a judgment of the court, an action for damages on the ground of fraud in procuring its execution was barred.

Plaintiff’s counsel, however, insisted that the plaintiff did not propose to set the release aside, but was seeking instead to recover the damages sustained by reason of the fraud practiced upon her.

The1 court had in mind and cited from recollection Stono v. Weiller (128 N. Y. 655), but we think there is a marked distinction between the two cases. In Stono’s case, it is true, the court held that it was necessary to set the release aside before a recovery of damages could be had, but the execution of the release in that case did not constitute in whole or in part the basis of the cause of action alleged in the complaint. On the contrary, subsequent to the happening of the events which gave rise to the cause of action sought to be maintained, the plaintiff therein had distinctly released the cause of action pleaded.

The court held at Circuit that, inasmuch as the release had to be set aside before there could be a recovery, the case belonged on the equity side of the court, and sent it to the Special Term for trial.

The court deemed that the proper disposition to make of this case, regarding the Stono case as a precedent for it. In this we think the court was mistaken. This release does not purport to release the cause of action averred in the complaint. On the contrary, it constitutes a part of the very foundation of the cause of action alleged.

This is not an attempt to recover the property which the instrument purports to release, but proceeds entirely upon the theory that by reason of the fraud practiced by each of the several defendants, the plaintiff was induced to execute an instrument surrendering her property to another, to her damage.

If such was the fact, and we must assume it was, upon the discovery of the fraud she had her choice of one of two remedies. Either to proceed by action for the recovery of the possession of the property, in which the release could have been attacked on the ground of fraud, if pleaded by the defendant; or to treat the instrument as actually surrendering the property, and to proceed directly against the parties whose fraudulent conduct had induced the execution of the paper.

She chose the latter remedy, as was her right. Griffing v. Diller (21 N. Y. Supp. 407); Roome v. Jennings (Id. 938), and cases cited in 5 Wait’s Actions and Defenses, 515, are cases differing in then-facts from the one under consideration, but nevertheless illustrative of the rule properly applicable.

An effort is made by the respondent to bring about an affirmance of the judgment of the court below on the ground that the complaint does not aver the necessary facts to constitute the cause of action which the plaintiff attempted to allege in her pleading.

It is quite true that there are averments in the complaint which could more appropriately be employed in alleging an altogether different cause of action than the one attempted.

Still, we think, the purpose of the pleader is not only apparent throughout the complaint, but it contains the allegations essential to a recovery on the ground of fraud, to wit, representation, falsity, scienter, deception and .damage.

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

Yan Brunt, P. J., and Follett, J., concurred.

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


source: Caselaw Access Project

author: Eollett, J.:

license: Public Domain

text:
    Albert Baer, Plaintiff, v. Charles W. Bonynge, Defendant.

      Principal and agent— liability of the agent to a third party for the failure of the principal to perform, a contract made by the agent on his behalf with such party.

    A person acting as agent is not liable for the failure of his principal to perform a contract entered into by the agent in behalf of the principal (as, e. g., a contract for a lease from the principal, of premises owned by him), unless lie acts for an undisclosed principal, or without authority, which is unknown to the other party, or unless he binds himself personally by the contract.
    Motion by the plaintiff for a new trial on a case containing exceptions ordered to be heard at the General Term in the first instance, by an order made on tlie dismissal of the complaint at the New York Circuit on the 3d day of April, 1893.
    This action was brought for the recovery of damages resulting from the defendant’s refusal to execute a lease to the plaintiff. Amos R. Eno, the former owner of No. 922 Broadway, leased it until May 1, 1891, to John ~W. Salter, who assigned his lease to the plaintiff, under which the plaintiff occupied the premises for a butcher’s shop and market for four years. "Whether he occupied the whole or but part of the premises, does not appear. At some time prior to 1890, Eno conveyed the premises to Rodie S. Bonynge, the defendant’s wife. The plaintiff testified that five or six months before October 2T, 1889, which would be in May or June, he had a conversation with defendant about a new lease, in which it was stated, “ I (plaintiff) told him (defendant-) I wished to renew the lease, as I wished to make some alterations about the building, and if I would not get the lease I would not do it; so he said, £ You can go right ahead. No one will get the lease but you.’ I said, £ I am never sure of anything unless I have it. I would rather have it in my pocket than wait for it.’ lie said, £ You can take my word for it. That is all you will have, my word; you can go ahead and paint the house and do all the repairs yon want.’ So he said, c You can go ahead with all the alterations you want to do.’ I said I wanted to put a new front in the building, as it was getting a kind of old now and bad, and he said, ‘ You can go right ahead.’ So I went and got the house painted, and got the roof fixed, and got the sidewalk all around fixed, and put the building in good condition.”
    September twenty-fourth defendant wrote the plaintiff as follows:
    “ London, Sept. 24th.
    “Dear Sir —I would have been in New York before this. * * * However, I am due in New York in the first week of
    November, and will call and see you. Have not offered the lease to anyone. Glad to hear you are doing well.
    “ Very truly,
    “ C. W. BONYNGE.”
    Early in November the plaintiff received from the defendant the following letter:

      “ 42 Prince’s Gate, London, Oct. 21, ’89.
    “Dear Mr. Baer — I expect to be in New York a week or so after this letter reaches yon; and, if you wish to renew a lease, please have the names of the parties you offered to go on your security ready to submit, as I will be there but a short time. I hope to find the building painted, and that the roof has been put in good condition as agreed on. I need not tell you other people want it. Hope you have a good business and doing well.
    “ Y ery truly,
    “O'. W. BONYNGE.
    The defendant returned to New York the first week of November, when he called on the plaintiff and told him that he would let him know the terms of the lease within a few days ; that he would get an appraiser and see what the lease was really worth. A few days afterwards the defendant gave the plaintiff the following documents:
    “ Fifth Avenue Hotel, “Madison Square, New York.
    • “ Friday.

    “ Dear Mr. Baer — I had a valuer to-day up to look at building and situation, a man of very good judgment, and I asked him to make a fair estimate of the rent for the next ten years. I told him what you were paying and what I thought it worth. He said I was much too low; that since Salter took that lease property and rents had gone up there fully forty per cent, and he put the lease of the same nature as the present at $14,000 a year. So I have made up my mind to drop $1,000 off this and make it $13,000 for the next ten years. You to make any terms you like about the upper portion of the building, but you must let me know what the rent of the basement is to be and have it agreed on ; from what I hear I would not make his lease loss than $3,000 a year.
    “Now let me tell you what I find. "When Salter went in there the rent from the basement was only $900 the first year, then $1,200, and the rooms up stairs $2,500, making, say, $3,500 in all for the first two years. Take his rent and taxes at $12,000 and deduct the $3,500, and you find Salter paid $8,500 for his part ten years ago. Now, if you wish to have it at $13,000, say, with taxes, $15,000, deduct basement, $3,000, rooms, $3,500, making $6,500, making jour rent just the very same as Salter paid ten years ago. This is my conclusion after getting two very good opinions on it. I inclose a card with my ideas of the lease.
    • “ Yours truly,
    “C. W. BONYNGE.
    “We think inside of ten years this lease will be a very low one.”
    “ Rent, $13,000 with, in addition, to pay all taxes and improvements. Roof to be painted every year, outside of building every three years. Rent in gold coin to be paid July 1st, October 1st, January 1st, April 1st. No structures to be allowed in or about the building nor on the roof. No flag-staffs or anything similar to be permitted.
    “ Violations to work forfeiture of lease. No transfer of lease without consent of owner. Two good signers to be provided. Taxes, water to be paid on maturity and receipts for same furnished the owner. No objectionable business to be allowed on premises.”
    The day following the receipt of these documents the plaintiff told the defendant he would accept the terms offered, and a few days afterwards the defendant procured to be drafted in duplicate a proposed lease, the material parts of which are as follows : “ Lease dated November 28,1890, between Rodie S. Bonynge, of St. Louis, Missouri (but now temporarily residing in' London, England), and Albert Baer, duly executed and acknowledged by said Baer, demises the lot of land and building 922 Broadway, New York City, for the term of ten years from May 1st, 1891, at the yearly rent of thirteen thousand dollars in gold coin, payable in cparterly payments on the first days of July, October, January and April, containing the usual covenants and the following special provisions : That the tenant will pay on maturity the annual rent or charge for Croton water, and deliver to the landlord proper receipts showing such payment; that the tenant will also pay on maturity all taxes and deliver proper receipts showing such payment; that the tenant will, at his own expense, do all the repairs and keep and maintain the premises in good condition, and will not permit any flagstaff or poles on the roof, will paint the roof once in each year, and the: whole building-inside and out once in every three years, the first painting to be completed by August 1, 1891; that the tenant will not assign the lease or underlet without the written consent of the landlord, and will not use the premises for any purpose deemed extra hazardous or a nuisance, and that if default be made in any of said covenants, the landlord may re-enter and re-possess the premises. There are also covenants that in case the premises be destroyed by fire the landlord shall have the right to cancel the lease and apportion the rent, unless she elect to repair, in which case the repairs shall be made with reasonable dispatch, and during the period of repairs no rent shall accrue; also, that in case of an assessment for public improvement six per cent interest on the amount of such assessment shall be added to the rent.”
    The plaintiff signed the proposed lease and procured Samuel Lichenstein and Lewis Samuels to execute and acknowledge the guaranty indorsed thereon. Thereupon the plaintiff personally mailed one of the duplicates so executed to the defendant’s wife at London for execution by her. A few days after the duplicate had been mailed the defendant told the plaintiff that he should write and advise his wife not to execute it because the plaintiff refused to lease the basement to Mr. Streuver for ten years at not less than $3,000 per year. The defendant’s wife refused to execute the lease, and December 20, 1890, this action was brought, and May 1, 1891, the plaintiff vacated the premises which had been leased to another person.

      Albert Stichney, for the plaintiff.

      George L. Hives, for the defendant.
   Eollett, J.:

This action is for the recovery of damages for the alleged breach of a contract to procure a contract to be made. It should be borne in mind that the defendant did not own the property of which the plaintiff desired a lease, but it was owned by his wife, which fact was known to the plaintiff, as appears by the third subdivision of his complaint and from his testimony. lie testified that defendant told him that his wife owned the property and that he (the plaintiff) told the defendant that he desired that the proposed lease should be executed by defendant’s wife because he did not produce a power of attorney authorizing him to execute a lease for her. It is plain that the negotiations between the litigants were carried on with knowledge that defendant’s wife owned the property, and with the understanding that she should become the lessor, and that the defendant was acting as her adviser, or at most, as her agent. A person acting as agent is not liable for the failure of his principal to perform a contract entered into by the agent in behalf of the principal unless he acts for an undisclosed principal, or without authority, which is unknown to the other party, or unless he binds himself personally by the contract. The defendant was not acting for an undisclosed principal; he did not bind himself personally, and it was not shown that whatever he did was without authority, and it is difficult to see upon what principle he can be held liable in this action. It seems unnecessary to consider the question discussed on the argument and on the briefs, whether, under the Statute of Frauds, a valid lease, or a valid contract to give one, founded on a good consideration, arose out of the negotiations, oral and written, between the litigants, for the defendant did not assume to contract for himself, but for his wife. It seems that the defendant’s advice to his wife not to execute the lease, was based on the plaintiff’s unwillingness to make a satisfactory sublease of the basement. The letter stating the terms of the proposed lease contains the following: You to make any terms you like about the upper portion of the building, but you must let me know what the rent of the basement is to be, and have it agreed on ; from what I hear I would not make his lease less than $3,000 a year.” The proposed lease provides ; “ That the tenant will not assign the lease or underlet without the written consent of the landlord.” The defendant expressed dissatisfaction with the sublease of the basement which the plaintiff proposed to give to Mr. Streuver.

The jdaiutiff’s motion for a new trial should be denied, and a judgment ordered for the defendant, with costs.

O’Brien and Parker, JJ., concurred.

Plaintiff’s motion for a new trial denied, and a judgment ordered for the defendant, with costs.


author: Yan Brunt, P. J.:

text:
    Henry Corse, as Trustee, etc., Appellant, v. John Corse and Samuel Corse, as Trustees, etc., and Jacob Appell, Respondents.

      Testamentary trust estate— loho is a trustee, of the income only — he is not a necessary party to a■ lease made by the trustees of the corpus of the trust estate.

    A trustee of tlie income only of a testamentary trust estate lias, as such, no interest in the estate which renders it necessary for him to join in a lease of realty belonging to the corpus of the estate, made by the trustees of the corpus.

    A will devised and bequeathed the residuary estate, real and personal, to the executors in trust, to divide the same into as many shares as the testator had children, and to pay to each child, for life, the net income of his respective share, and provided that upon the death of any child the trust as to his share should cease and the principal go to his issue, and that, so far as practicable, the property should be kept together.
    By a codicil, which slated that the testator thereby intended to change his will only so far as it concerned one of his sons, and the share and benefits such sou would thereby receive, the testator constituted such son (who was not named as an executor) trustee of the share, the use of which liad been appropriated to him in the will, to take and manage the same for the use and education of his (the son’s) children during his life, the principal to be paid over to and divided between the son’s children and their heirs and representatives on his death.
    The executors, as trustees of the residuary estate, made a lease of certain of the realty, without the son’s joining therein, and against his will, and the sou brought an action to set the same aside as having been made improvidently and without power upon the part of the trustees.

      Held, that it was apparent that it was not the intention of the testator to give to the plaintiff, hy the codicil, any interest in the corpus of the estate;
    That all that was intended was that the plaintiff should he appointed trustee of the income which, under the will, would have been paid to him absolutely, and under the codicil was directed to be applied by Mm to the use of his children;
    That, hence, the plaintiff took no interest in any portion of the principal of the estate, and, therefore, it was not necessary for him to join in the lease;
    That he had no interest in the controversy instituted to set aside the lease except, perhaps, that as a beneficiary he might call the trustees to account for a maladministration of the trust. .
    Appeal by tbe plaintiff, Henry Corse, as one of tbe testamentary trustees of tbe estate of Henry Corse, deceased, from a judgment of tbe Supreme Court in favor of tbe defendants, entered in the office of tbe clerk of tbe city and county of New York on tbe 20th day of February, 1893, upon a decision of tbe court dismissing tbe complaint upon the merits, rendered after a trial by the court at the New York Special Term, and also from an order granting an additional allowance, entered in said clerk’s office February, 1893.
    tF. O. Reddy, for the appellant.

      G. O. Blcmlce, for the respondents Corse.

      O. Norwood, for the respondent Appell.
   Yan Brunt, P. J.:

This action was brought to set aside a lease made to the defendant Appell by his codefendants of certain premises in the city of New York.'

The testator, Ilenry Corse, died in May, 1882, leaving a last will and testament and a codicil thereto," which were duly proved and admitted to probate. By his will, the testator appointed as executors his wife, Lydia A. Corse, his daughter, Catherine E. Fischer, and his two sons, John Corse and Samuel Corse; and, after making provision for his widow, he devised and bequeathed to his executrices and executors all his residuary estate, real and personal, upon certain trusts, under -which the plaintiff, Henry Corse, was entitled to receive a certain share of the income derived from said estate. By his codicil the testator changed the provisions of the will so far as the same concerned or affected his son Henry only, and the share and benefit he would thereby receive, and instead and in place thereof he directed that the net interest and income from said share (that is, the share wherefrom the income which, under the will, was directed to be paid to the plaintiff should be derived), or so much thereof as might be necessary, should be paid, appropriated and applied to and for the education, maintenance and support of the children of said Henry during the lifetime of his son, and in the stead and place of his executrices and executors named in said will as trustees, so far as relates to the said share only, the said Ilenry Corse was nominated, constituted and appointed trustee of said share, to have, take, receive, manage and control the same for the use, education, benefit and support of his said children during his life as aforesaid, and upon his death testator directed the principal of said share to be paid over to, and equally divided between, the children of said Henry and their heirs and legal representatives.

The trustees named in said will having executed'a lease of certain premises against the will of the plaintiff, as testamentary trustee under said codicil, this action was brought to set aside said lease upon the ground that it was improvidently made, and also without power upon the part of the trustees. It is true that one of the original trustees under the will, Catherine Fischer, did not join in the lease, but she subsequently ratified the same.

Upon the trial the court dismissed the complaint, and from the judgment thereupon entered this appeal is taken.

As to the claim that the granting of the lease was improvident and improper, the disposition made in the court below seems to have been right, and we see no reason to interfere with the judgment upon that account.

The only question is whether the plaintiff has such an interest in the estate of his father as made it necessary for him to join in the lease in question. Upon .an examination of the will and codicil it seems to us apparent that it was not the intention of the testator to give- to the plaintiff, by the codicil under which he claims, any interest in the original corpus' of the estate; but all that ivas intended was that he should be appointed as trustee of the income which under the original will1 would have been paid to him absolutely, and under the codicil was directed to be applied by him to the use, education, benefit and support of his children.

It is undoubtedly true that in the codicil some language is used which affords some foundation for 'the claim that, as far as the share of the estate from which he vras to derive the income was concerned he had been appointed trustee. But when we read the will and' codicil together it is apparent that such was not the intention of the testator. By his will, as already stated, he devised the rest, residue and remainder of his estate for the benefit of his children. The direction was to divide the same into eight equal parts or shares, being one share for the use of each one of his eight children, including the plaintiff. And with the further direction that the trustees were to continue to hold the same in severalty, and severally and respectively in manner and upon the trusts, and to and for the uses, objects and purposes therein stated, viz., to receive the rents, income and profits from the same, and after paying the taxes, assessments and other expenses properly chargeable against the income, to pay over the residue to his children severally and respectively during their several and respective lives; that is, to each child such residue of interest and income derivable therefrom or applicable to his or her said one-eighth share.

He further provides that upon the death of any child the trust as to his or her share should cease, and the principal was devised to-his grandchild or grandchildren who might be the lawful issue of said child so dying.

Subsequently the testator states that, believing it for the best, interest of his children as well as his grandchildren, that his property should be kept together as long as possible, as he thought it would thus produce a larger income, he recommended his. trustees to keep the same together. .But he expressly states that this was not to be construed as a direction or restriction, but only as the advice of a father deeply interested in the welfare and happiness of his-children.

It seems, therefore, to be apparent that although there was an. express direction that the estate should be divided, it was inserted in the will because of a fear that unless such direction was given the-trust which he had created might run contrary to our statutes in respect to the alienation of estates; and that it was the intention of the testator that as far as practicable the property should be kept together — certainly until the necessity for a division arose by the death of some of his children, and the consequent taking out of an eighth part thereof for the representatives of such deceased child.

Now, there is nothing in the codicil which runs counter to this intention. It is true he states that he nominates, constitutes and appoints his son Henry the trustee of the share, the use of which he had appropriated to him in the will, to have, take, receive, manage and control the same for the use, education, benefit and support of his children during his life, and upon his death he directed that the principal of said share should be paid over to, and equally divided between the children of said Henry. But this is preceded by an express statement of the intention of the testator to modify, alter knd change the provisions of his will only so far as the same concerned. or affected his son Henry, and the share and benefits he-would thereby receive; and in place thereof he makes the provision above mentioned. Clearly his intention was simply to make. Henry a trustee of the income and not of the principal.

It was as to the share and benefits which Henry would receive that he proposed to make the change. And all that Henry under the original will received was the income of an eighth share, or one-eighth of the income of the whole estate.

Such being the plain intention of the testator, Henry Corse took no interest in any portion of the principal of the estate, was only a trustee of income, and has no interest in the controversy in question, except, perhaps, that as a beneficiary he might call his trustees to account for the maladministration of the trust.

¥e are of opinion, therefore, that the complaint was properly dismissed, and that the judgment should be affirmed.

Follett and Parker, JJ., concurred.

Judgment affirmed.


author: Van Brunt, P. J.:

text:
    Alfred Davies and Others, Respondents, v. Herman Fred Racer, Appellant.

      Limited agreement by a clerk not to engage in a similar business to that of his employer — enfoi'cement of the agreement by injunction.

    lu an action brought to obtain an injunction to prevent the defendant from interfering with the plaintiffs’ customers by solicitation of their business, on behalf of his present employers, in violation of his agreement with the plaintiffs, it appeared that plaintiffs, a firm of forwarding' agents and custom-house brokers in New York city, had entered into an agreement with the defendant whereby the firnp. employed the defendant as a clerk to receive, influence and procure orders and goods from shippers and to perform other duties, in consideration of a salary therein expressed, and that the defendant thereby agreed not to engage in the city of New York, or within fifty miles thereof, either directly or indirectly, in a similar business to that carried onrby the plaintiffs, or to interfere with any of the plaintiffs’ customers, directly or indirectly, for twelve months after the expiration of the agreement.
    The agreement continued in existence until the defendant voluntarily left the plaintiffs’ employment and made an engagement with another firm in New York city carrying on a business similar to that of the plaintiffs.

      Meld, on appeal from an order continuing an injunction during the pendency of the action, or until one year from the expiration of the agreement, that the agreement was not in restraint of trade or unreasonable, and that the defendant’s employment was a sufficient consideration to support it.
    The defendant insisted that there was no evidence that the plaintiffs had suffered or would suffer such great or irreparable injury as would warrant the granting of an injunction.
    Meld, that as it was clear that there had been a plain and willful violation upon the part of the defendant of the covenants contained in his agreement, it required but slight evidence of injury to justify the court in restraining such acts, it being apparent that it was impossible to calculate their results.
    Appeal by tlie defendant, Herman Fred Racer, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the city and county of New York on the 24th day of March, 1893, enjoining and restraining the defendant, “ during the pendency of this action, or until the 29th day of December, 1893, if the same shall have not been tried before that date, from engaging as clerk or otherwise, in any business similar to that carried on by the plaintiffs’ firm of Davies, Turner & Co., and from interfering with the customers of the plaintiffs as they existed on the 29th day of December, 1892, by soliciting business from them, directly or indirectly.”
    The action was brought in February, 1893, to obtain an injunction restraining the defendant from the acts above specified, until the 29th day of December, 1893.

      W. P. Burr, for the appellant.

      II. II. Whitman, for the respondents.
   Van Brunt, P. J.:

There seems to be little to add to the opinion rendered in the •court below. But it may be necessary to notice one or two points which have been urged upoh this appeal.

It appears that on the 1st of June, 1881, the plaintiffs, who are 'engaged in the business of forwarding agents and custom-house brokers, entered into an agreement with the defendant, whereby said firm employed the defendant as clerk to receive, influence and procure orders and goods from shippers in New York city and elsewhere, and to perform other duties in consideration of a salary therein expressed. In and by said agreement, the said defendant agreed not to engage in the city of New York, or within fifty miles thereof, either directly or indirectly, in a similar business to that carried on by the plaintiffs, or to interfere witli any of the plaintiffs’ customers, directly or indirectly, for tbe space of twelve months after the expiration of the agreement. Said agreement was con-tinned in existence until on or about the 29th of December, 1892, when the defendant voluntarily left the plaintiffs’ employment and engaged as a clerk with a firm in New York doing business similar to that of the plaintiffs, and, it is alleged, interfered with the customers of the plaintiffs by systematic solicitation of their business on behalf of said Arm, and that such solicitation was in open violation of defendant’s said agreement.

There was evidence tending to show the existence of this state of facts. But it is urged upon the part of the appellant that there was no evidence that the plaintiffs have suffered or will suffer such great or irreparable injury as will warrant the granting of this injunction.

It is undoubtedly true that the evidence in this regard is slight. But there certainly is evidence from which the conclusion might be drawn that the plaintiffs may suffer injury from the actions of the defendant. It appears beyond contradiction that he is soliciting-custom from those who have been accustomed to deal with the plaintiffs, and that some of these customers have ceased dealing with the plaintiffs, although they allege they would have ceased dealing with the plaintiffs, even though the defendant had not solicited the change. It is naturally difficult to establish the effect of the mental operations which have brought about the change in the action of these customers; but it is apparent that there has been a plain and willful violation upon the part of the defendant of the covenants contained in his agreement. And it requires but slight evidence of injury to justify the court in restraining such acts, it being apparent that it is impossible to calculate what may be the results of such action.

It is also urged that the covenant is in restraint of trade, and was not supported by a good consideration, and unreasonable in view of the circumstances disclosed, and, therefore, void.

As to the agreement being in restraint of trade, it seems to be difficult to support any such proposition in view of the principles enunciated by the Court of Appeals in the case of The Diamond Match Co. v. Doeber (106 N. Y. 473), where a very much broader contract was enforced.

As to the want of consideration, the fact of the employment was sufficient consideration. It enabled the defendant to become familiar with the customers and the trade of the plaintiffs, and they had a right to protect themselves by such a covenant against sncli knowledge being used to their disadvantage.

As to the policy of the law being against the restraint of clerks, mechanics and apprentices from pursuing their jirofession or employment in any particular place, it seems to be sufficient to say that no rule laid down in this State has been called to our attention which in any way militates against the validity or propriety of such an agreement as forms the subject-matter of this action.

We think, therefore, that the order should be affirmed, with ten dollars costs and disbursements.

Follett and Parker, JJ\, concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Folleto.', J.:

text:
    Samuel Bernstein, an Infant, by Ephraim Bernstein, his Guardian ad litem, Respondent, v. The Dry Dock, East Broadway and Battery Railroad Company, Appellant.

      Negligence — pwsonal injury suffered in alighting from a horse street ear — issue as to whether the attempt to alight was while the car loas in motion — weight oj evidence.

    'On tlie trial of an action brought to recover from a street railroad company, on the ground of negligence, the damages resulting from a personal injury sustained by a passenger, a boy seventeen years of age, while alighting from the defendant’s horse car, the plaintiff sought to establish as a ground of recovery that the car came to a full stop at his request and suddenly started while he was stepping to the ground from the steps of the front platform on which he had been riding, and claimed that this constituted negligence on the part of the defendant.
    The defendant attempted to show that the plaintiff got off the front platform while the car was in motion, without notifying the conductor or driver that he wished to get off.
    Upon this issue a verdict was rendered in favor of plaintiff.

      Held, on a review of the testimony, that the plaintiff failed to sustain, by a preponderance of evidence, the issue tendered by him as a ground of recovery, and that the verdict was against the weight of evidence.

      Appeal by the defendant, the Dry Dock, East Broadway and Battery Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the city and county of New York on the 15th day of December, 1892, upon a verdict rendered at the New York Circuit, and from an order denying the defendant’s motion for a new trial made upon the minutes.

      Jolm M. Scribner, for the appellant.

      Benjamin IF. Garclozo, for the respondent.
   Folleto.', J.:

This action ovas brought to recover damages for personal injuries inflicted while alighting from one of the defendant’s cars, caused, as it is alleged, by the negligence of its employees. At the time of the accident, October 15, 1889, the plaintiff was seventeen years of age and ovas living with his father at No. 106 East Broadway. Between six and half-past seven in the afternoon of that day, the plaintiff took a car on defendant’s line at Thirty-fourth street for the purpose of riding to his father’s residence and place of business. At or near Fourteenth street the plaintiff Avent to the front platform of the car and rode until the accident.

"When the car reached No. 106 East Broadway, the plaintiff, while alighting from the front platform, fell under the car and its forward Avheel passed over his right leg, rendering amputation necessary. The plaintiff sought to establish on the trial as a ground of recovery, that the car came to a full stop at his request and suddenly started while he was stepping from the steps of the car to the ground. The plaintiff did not attempt to establish that the defendant or its employees Avere negligent in any other respect.

The defendant sought to establish that the plaintiff got off the front platform while the car was in motion without notifying the conductor or driver that he wished to get off. This Avas the issue upon which the plaintiff’s right to recover turned.

William Schugarmen, a Avitness called by the plaintiff, testified that lie saw the car cross Pike street, which is 110 feet from the place of the accident, and that the horses Avere then trotting ; that he Avas Avalking on the northwesterly sidewalk and was near the boundary line between Nos. 101 and 102 East Broadway. lie said: “ I heard a scream and I looked up and saw a boy tottering on the step of the car, and I ran to his assistance, but before I reached him he fell down and the front wheel ran over his leg. Tie fell fade downwards and his right leg under the wheel and the wheel crossed it.” lie also testified that when his attention was attracted to the car by the scream it was moving at about the same speed as it was when it passed the corner of Pike street; that he shouted to the driver, “ down brake ” and “ stop ” and that the driver did stop his car within six or seven feet, but too late to prevent the accident. This witness did not testify that the car stopped before the accident, and his evidence, to say the least, is as consistent with the theory that it did not as that it did stop. It cannot be said that this witness directly corroborates the plaintiff on the issue whether the car was stopped to permit him to alight.

Louis Bernstein, called as a witness by the plaintiff, testified that he saw the accident, and thaf¡ it happened in June or July. He said: “ I stood near 106 East Broadway. I seen the car coming along and a man wanted to descend from the car. The man called to the driver, ‘ Stop the ear.’ I saw him coining and he said, Stop the car,’ and he did not stop the car. * * * The car was near Pike street when the man told the driver to stop; they were ab’out four houses distant from it.” Later he modified his evidence and said that the plaintiff said, “ Stop the car ” when he was under it, and that he did not hear the plaintiff when he stood by the driver on the platform say, “ Stop the car.” This witness, who could not speak English, gave a very confused and contradictory account of what he saw or thought he saw and heard. He swore that the plaintiff asked to be let off when he was standing by the side of the driver and afterwards said that he did not. Upon the cross-examination he testified that the car stopped and then gave a sudden jerk directly in front of No. 106. He admitted that on the former trial he testified that the accident happened in the spring of the year. . This is all of the evidence given in behalf of'the plaintiff in support of the issue which he tendered and which he was bound to establish by a preponderance of evidence.

The defendant called the driver of the car, who testified that the plaintiff did not ask him to stop it, and that he left the car while -it was in motion. The conductor testified that the car was not stopped until immediately after the accident, and he produced his report made at the time, which contains the same statement. At the time of the trial the conductor had been discharged from the defendant’s service.

William P. Murphy, called by the defendant, testified that at the time of the accident he lived at No. 106 East Broadway, and was standing in the door of that house when the accident occurred. lie said the car made no stop after passing Pike street until after the boy fell from the platform; that- when he attempted to alight the car was in motion.

<Toseph Ivory, a policeman, testified that at the time of the. accident he was standing on the northwest corner of Pike street and East Broadway; that he saw the car passing and that it did not stop until after the accident; that he assisted in taking the boy from under the car.

Mendell Bluestone, called by the defendant, testified that he stood in front of 91 East Broadway, about 106 feet from the accident and saw it; that the car had not stopped, but was going at the usual rate of speed until after the accident.

Emma Winterfield, a witness called by the defendant, testified that at the time of the accident she lived at 101 East Broadway, and was standing in front of her house at the time it occurred. She swore that the car did not stop between Pike street and 106, and that it was in motion when the boy fell or jumped off.

Ida Winterfield, the daughter of the last witness, testified that She was on the northern side of the street about opposite 101, and that the speed of the car did not change between Pike street and No. 106 East Broadway, and that when the plaintiff fell it was in motion.

Thomas D. Merrigan was sworn in behalf of the defendant and testified that on the 15th of October, 1889, he was the senior assistant to the house surgeon of Gouverneur Hospital, to which the plaintiff was taken. He testified: “ Q. What did he (plaintiff) say to you while at Gouverneur Hospital in regard to the circumstances of this accident, and how he came to get hurt ? A. He told me that he jumped off the car and was run over. Q. Did he say whether or not the car was in motion at the time ? A. Yes, sir; he told me it was going. Q. Did he say where he asked the driver to stop ? A. No, sir; he told me that he did not ask him to stop. Q. Did he say why he didn’t ask the driver to stop ? A. Yes, sir. Q. Why? A. He told me he didn’t ask the driver to stop because he jumped off there a good many times before, and he didn’t see why he could not do it again.”

Erank II. Pellatier, called in behalf of the defendant, testified that on the fifteenth of October he was house surgeon at Gouverneur Hospital. He testified to a conversation between the plaintiff and the driver occurring a day or two after the plaintiff was taken to the hospital. Q. Did the driver say to Bernstein on that occasion: If you had asked me to stop the car you would have saved all this trouble?’ A. Yes, I believe that he did. Q. And did the plaintiff reply that he had jumped off that car a great many times before, and that he never had been hurt, and thought he was perfectly safe to do it again ? A. He did.”

Andrew J. Curran, a medical student, who was called by the defendant, testified that he was present at the conversation between the plaintiff and Dr. Merrigan. “ Q. You may say what the doctor said to the plaintiff, and what the plaintiff said to him, if you please ? A. Dr. Merrigan asked the plaintiff how he came to meet with the accident, and he said he jumped off the front platform of the car when opposite his home; and I believe Dr. Merrigan asked him why he didn’t wait until the car stopped, and he said he often jumped off the car before and didn’t see why he could not do it now, or words to that effect.”

Charles Wilson, a witness called by the defendant, testified that he was employed in the hospital, and that about four days after the plaintiff came into the hospital “ I asked him how he came to get by the accident, and he told me he went out to smoke and he jumped off the car as he had done so on several occasions before. Q. Did he say anything about the car being in motion at the time ? A. Yes, sir; it was in motion at the time. Q. Did he say anything about requesting the driver to stop? A. No, sir; all he told me was he jumped off the car while it was in motion, and he had been in the habit of riding down town several times on that line. Q. On any other occasion did he repeat that statement of this circumstance to you? A. No, sir; he said it was very silly for him to do such a thing, and he wished he had his leg back,”

The driver of the car testified to the interview with the plaintiff in. the hospital in which the plaintiff told him that he jumped off the car when in motion.

We think the plaintiff failed to sustain by a preponderance of evidence the issue which he tendered as a ground of recovery, that the verdict was against the weight of the evidence, and that the judgment and ■ order should he reversed and a new trial granted, with costs to the appellant to abide the event.

O’Brien and Parker, JJ., concurred.

Judgment and order reversed and a new trial granted, with costs to the appellant to abide the event.