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

text:
    OTTO RUHL, as President, &c., Appellant v. FREDERICK A. WARE, as President, &c., Respondent.

      Legal capacity to sue—As to sufficient facts not appearing to call for a demurrer—Answer when not virtually a demurrer.

    The complaint alleged that plaintiff is the president of an association consisting of seven “ members and upwards.” It referred to the constitution and by-laws annexed and made them a part of the complaint. It then proceeded to set forth the supposed cause of action. It had annexed to it a list of names purporting to be a list of the officers of the association, but it did not refer to it; nor did the constitution show that the names in the list were of persons who had been chosen to be officers. The constitution contained a provision that any amateur club or cross country organization should be eligible to membership, but it nowhere appeared that such organizations were not meant to be incorporated associations.
    The question presented was, whether sufficient appeared on the face of the complaint to enable the defendant to test, by demurrer, the legal capacity of the plaintiff to sue, thus rendering denials in the answer that plaintiff is president of an association of seven members and upwards, and that the association, of which he sues as president, is one of seven persons and upwards, and affirmative averments that the members of that association are not persons within the meaning of the Code of Civil Procedure, that no one of its members is a natural person and that seven of them are unincorporated, equivalent only to a demurrer for want of legal capacity to sue and therefore improperly joined with denials of, and defences to, the alleged cause of action.

      Held, that defendant could not question the legal capacity to sue by demurrer, but was obliged to raiste it by answer setting forth the requisite facts, which answer was not virtually a demurrer.
    Before Sedgwick, Ch. J., and Truax, J.

      Decided March 5, 1889.
    Appeal by plaintiff from an order denying bis motion for an order requiring' the defendant to elect by which of certain parts of an answer the defendant would abide.

      His motion was founded on his affidavit in which he set forth : “The.object of this motion is to require the defendant to elect as to which pleading he will abide by. The answer, as served, contains an allegation that the persons who constitute the association of which Otto Ruhl is president are not persons within the meaning of section 1919, of the Code of Civil Procedure, and the same pleading also denies certain allegations of fact; the defendant, therefore, has answered and demurred to the same cause of action in the complaint, which is not permissible.”
    Other matters appear in the opinion.

      Brandt & Bobbins, attorneys, and Charles F. Brandt of counsel for appellant, argued :—
    I. When a defendant demurs substantially to a complaint, although he does not use the word “ demur” and at the same time answers the balance of the complaint, the only remedy is to require him to elect which pleading he will abide by. Slocum v. Wheeler, 4 How. 373 ; Spellman v. Weider, 5 Ib. 5; Munn v. Barnum, 12 Ib. 563. Section 487 Code says: “ The only pleading on the part of the defendant is either a demurrer, or an answer.”
    II. The next question therefore is, do the objections, if any, that the plaintiff has not legal capacity to sue appear upon the face of the complaint. The appellant claims that those pleaded in the answer do so appear, and for these reasons: It appears by a reference to the constitution of the National Cross Country Association, that any amateur athletic club, or cross country organization shall be eligible to membership. In other words, the National Cross Country Association is composed primarily of clubs, or cross country organizations. These clubs or organizations, however, cannot act or speak of themselves, and so the constitution provides further on how the different clubs composing the association shall be represented at its deliberations, the exact language being that “ the management of the association shall be vested in a committee consisting of one representative from each club.” In short, the National Cross Country Association is composed of the representatives of various athletic clubs; these representatives are natural persons, as appears by a list of its present officers and executive committee.

      George W. Carr, attorney and of counsel for respondent, argued:—
    I. The allegations in the answer relative to plaintiff’s incapacity to sue are not in form a demurrer, unless it appears affirmatively on the face of the complaint that plaintiff has not legal capacity to sue. Phoenix Bank v. Donnell, 40 N. Y. 410. That case holds clearly that to make a demurrer the proper pleading it is not sufficient that the complaint does not show capacity to sue, but that it must affirmatively show incapacity to sue.
    II. It does not appear upon the face of this complaint that plaintiff has not capacity to sue. He therein alleges that he is president of an association of seven members and upwards, and, by the constitution, made a part of the complaint, it appears that any amateur athletic club or cross country organization is eligible to membership, and the list of clubs from which the officers named were chosen shows more than seven clubs as members. Inferentially natural persons are not eligible to membership. The court will take judicial notice of the law allowing athletic clubs and cross country organizations to become incorporated by complying with its provisions; and the word “any,” which begins the article relative to membership, includes clubs and organizations of that character, both incorporated and unincorporated. For aught that appears upon the face of the complaint, the members composing the association of Avhich plaintiff claims to be president may all be incorporated, and, if they were, defendant admits that they would be persons in the sense used in section 1919 ; but, at the same time, he denies that unincorporated clubs and organizations would be such persons. If the constitution had provided that only unincorporated clubs could be members, or if the complaint had alleged that only unincorporated clubs.were members, there would be good ground for claiming that the defect as to plaintiff’s capacity appeared upon the face of the complaint, and that defendant’s allegations constituted a demurrer.
    TIT. The cases cited by plaintiff’s counsel are inapplicable. The case cited in the 4th of Howard, page 373, distinctly maintains the proposition advanced by defendant, and warrants the court in allowing the answer to stand as drawn.
   By the Court.—Sedgwick, Ch. J.

The complaint alleged that plaintiff was president of the National Cross Country Association of America, an association of seven members and upwards ; that said association was organized on or about, etc., and that it then and there adopted a constitution and by-laws for its own- government, and “plaintiff begs leave to refer to said constitution and by-laws and hereby makes them a part of this complaint.” The complaint proceeded to state the supposed cause of action. After the verification, a list was added headed, “ officers of the National Cross Country Association of America, .President Otto Ruhl, New York Athletic Club, Vice President William Halpin, Olympic Athletic Club, etc. etc.,' and then Constitution, etc., Article 1, etc., and then By-laws, article 1, etc.”

The answer put in issue the allegations of the complaint as to the supposed cause of action, first however averring that, “excepting the Missouri Athletic Association and Manhattan Athletic Club, the members of said association are not persons in the meaning indicated in the Code of Civil Procedure; that no one of the members of said association is a natural person, and that seven of said members are not incorporated and therefore not legal persons.”

The motion and the argument at the bar did not regard the quality of the pleading on either side, excepting as it was conceded by both sides, that the matter that has been extracted from the answer was intended to raise the question of whether plaintiff had legal capacity to sue. The plaintiff contends that the facts averred in this part of the answer appeared upon the face of the complaint and that therefore the defendant was bound by the Code to raise the question as to capacity to sue by demurrer, and that the answer was virtually a demurrer. It is further contended that the defendant could not demur and answer as to the cause of action in the same pleading. I do not think it necessary to decide as to the validity of the last proposition. The defendant contends that the facts on which he has a right to question the plaintiff’s capacity to sue, do not appear in the complaint.

As to such a capacity, § 1919, Code Civil Procedure says, that an action may be maintained by the president of an unincorporated association consisting of seven or more persons. The complaint, however, avers an association not of seven persons but of “ seven members and upwards.” As the plaintiff’s motion did not assume that this was to signify anything different from seven persons,” it mustbe taken that the complaint argumentatively implied, that the members were persons legally qualified to be members. The addendum to the complaint of a list of names of persons purporting to be officers, had not been referred to in the complaint, so that it may be guessed that the complaint meant that such persons were the members. The constitution which was referred to in the complaint did not show that the names in the list were of persons who had been chosen to be officers. And as to the constitution providing that any amateur club or cross country organization should be eligible to membership in the association, it nowhere appeared that such organizations were not meant to be incorporated associations.

I think, it nowhere appeared, that the complaint placed the qualifications of the members upon the fact that they were not natural persons, or legal persons, so that the defendant could question the legal capacity to sue by demurrer. Therefore the defendant had the right to aver in the answer the existence of facts, which if proved would show that the association represented by the plaintiff, as president, was not empowered to sue through its president under the provisions of § 1919. Such an answer made an issue of fact and was not virtually a demurrer.

The order below, should be affirmed with $10 costs and disbursements to be taxed.

Truax, J., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    GEORGE W. VAN SLYCK, Appellant v. JOHN S. BUSH, et al., Respondents.

      Assignment for benefit of creditors—Non liability of assignee's sureties for the omission of the assignee to pay a claim of his attorney for services directed by the final decree on his accounting to be by him paid out of the funds of the assigned estate.

    The plaintiff in this case had rendered services as attorney and counsel to an assignee under an assignment for the benefit of creditors. Upon an accounting by the assignee, to which his sureties were parties, a final decree was made by which the assignee was directed to pay from the funds in his hands, as assignee, within a specified time, to the plaintiff in this action, the attorney for the assignee, the sum of $2,123.37 with interest. At the time of the entry of this decree the assignee had on hand, as such, more than that sum. Plaintiff was not a party to the accounting proceedings and presented no claim therein. After the decree the assignee made a payment to plaintiff on account. This action is brought against the sureties of the assignee to recover the balance of the $2,123.37, remaining after deducting such payment, upon the assignee’s failure to pay it. '

      Held, on demurrer to the complaint, that the sureties were not liable.

      Before Sedgwick, Ch. J., and Truax, J.

      Decided March 6, 1889.
    Appeal by plaintiff from judgment dismissing complaint entered upon demurrer to complaint.
    The facts sufficiently appear in the opinion.

      Frederick A. Snow, attorney, and John E. Parsons of counsel for appellant, on the questions considered in the opinion, argued:—
    I. The decree is final as to the indebtedness of the estate, and the obligation of the assignee to pay the same, and upon his failure to pay, the sureties became liable. The undertaking of the sureties is that the assignee shall faithfully execute and discharge the duties of such assignee, and duly account for all moneys received by him as such assignee. The condition of the bond involves the obligation of the assignee making payments of the funds in his custody according to the orders of a court having jurisdiction to make them. Assignees for the benefit of creditors are subject to the order and direction of the court. Matter of Mumford, 5 State Rep. 303; §§ 20 and 25 of chap. 466, Laws of 1877. The moneys directed to be applied in payment of plaintiff’s claim were in the hands of the assignee, or, in other words, were in custodia legis. And in such a case when the assignee disobeys the order of. the court the assignee has failed to faithfully execute the trust and there has occurred a breach of the condition of the bond. Titus v. Fairchild, 49 Super. Ct. 211-221 Board of Supervisors v. Bristol, 99 N. Y. 316-321; Jennery v. Olmstead, 36 Hun, 536-41. The assignee confessedly has not “ duly accounted for all moneys received by him as such assignee.” The accounting therein mentioned refers to the payments of moneys received by him as assignee, and clearly he has not paid out the moneys received by him as assignee as directed. The indebtedness due the plaintiff was incurred by the assignee in the preservation and protection of the assigned estate, and the court had the power to direct its payment. In re Hulbut, 10 Abb. N. C. 290 ; affd. on this point in 10 lb. 452, 458. It was a necessary expense of the trustee,, and it is a well settled rule in equity that the expenses incurred by a trustee in the execution of his office are treated by the court as a first charge or lien upon the estate and the cestui que trust cannot compel distribution of the fund or a conveyance of the property without the payment,of the expenses from the fund. 2 Lewin on Trusts, 639, and cases there cited.
    II. The defendants are precluded by the decree from contesting the liability of the estate for the debt of the plaintiff. The sureties were served with process and were parties to the accounting which terminated in the entry of the final decree. Casoni v. Jerome, 58 N. Y. 315, 322, 323 ; Gerault v. Wilson, 81 Ib. 573, 585; Scofield v. Churchill, 72 lb. 565. Even assuming that the court had no power to make the direction contained in the decree, the sureties are nevertheless bound. Marsh v. Avery, 81 N. Y. 29. In the above cases, which were actions upon executors’ and administrators’ bonds, the court put considerable stress upon the condition contained in the bonds to obey all orders of the surrogate. It will be found upon examination of these cases that special reference is made to this condition and not to the provision as to the faithful performance of the trust, for the reason that the sureties in those cases were not served with proper notice in the proceedings upon which the decree was made, and that the court cite this provision to show that the sureties had covenanted to be concluded by the order of the court affecting their principal. See. remarks of Finch, J., in Thompson v. McGregor, 81 N. Y. 592-598. In other words, it was not doubted that there was a breach of condition as to faithful performance upon failure to pay money directed to be paid by the court, but the doubt was as to whether the sureties who were not parties to the proceedings were bound by the decree, and the provision as to obedience of orders of the surrogate was in effect a provision binding upon the sureties without notice or service of citation. 4 Abb. App. 391; 2 Duer, 169-170.

      Francis B. Chedsey, attorney and of counsel for respondent Bush, argued:—
    I. The provision in the decree of the court, settling the account of the assignee, which directed him to pay out of the funds in his hands the amount of his indebtedness to the plaintiff, for services rendered by the plaintiff as attorney for the assignee in the management of the estate, must be construed simply as passing and allowing to the assignee that item as a proper expense incurred by him. The proper form to have drawn the decree would have been to have simply allowed the item to the assignee as a proper item of expense. Matter of Worthy, G. T., 10 Daly, 12. The debt was the personal debt of the assignee, and the court had not jurisdiction in those proceedings to order or compel the assignee to pay it. By § 20, sub. 4, of the “ General Assignment act,” 1877, as amended by laws 1878, power is conferred upon the court “ to settle and adjudicate upon the account and the claims presented, and to decree payment of any creditor’s just proportional part of the fund.” The bond in suit was given, pursuant to § 5 of the act, to the “ People of the State,” and authority for its prosecution was conferred by § 9, which provides that u all moneys realized thereon shall be applied by direction of the county judge in satisfaction of the debts of the assignor,” clearly showing that the bond was required by the statute and given for the protection and security of the creditors of the assignor only. Sureties can only be charged when the case is brought within the very terms of their contract, and the obligation of sureties is not to be extended by construction to embrace purposes and objects not contemplated by the parties. People v. Chalmers, 60 N. Y. 154.
    II. The plaintiff’s position is not sustained by sub. 9 of § 20 of the act providing that the court shall have power “ to exercise. such other or further powers in respect to the proceedings and the accounting therein as a surrogate may by law exercise in reference to an accounting by an executor or administrator.” A surrogate has no power to direct payment of a sum by an executor or administrator to his counsel for the services of the latter. Seaman v. Whitehead, 78 N. Y. 306; Ferrin v. Myrick, 41 Ib. 315; Austin v. Munro, 47 Ib. 360; Schmittler v. Simon, 101 Ib. 554; Devin v. Patchin, 26 Ib. 441. The plaintiff at the trial relied on the case of Casoni v. Jerome, 58 N. Y. 315, which sustained a recovery against the sureties in a bond given by an administrator with the will annexed. That claim was made directly against the estate (see foot of page 317) for erecting a monument which the will directed to be erected (see page 318), and for the payment for which it was, on the accounting, expressly adjudged that the estate was liable (p. 317). The bond itself (p. 316), unlike the one in suit, contained a provision that .the administrator would obey all orders of the surrogate, etc. The judgment against the sureties was sustained only because the claim had been adjudged, as a fact, to be a claim, not against the administrator personally, but against the estate (see foot of p. 321). In the case at bar there has been no adjudication that the claim was against the assigned estate, but the complaint, paragraph five, distinctly avers to the contrary.

      E. C. Pearson, attorney and of counsel for respondent, Camp, on the questions considered in the opinion, argued:—
    I. But the plaintiff relies upon the provision in the decree of the court directing the payment to him by the assignee out of the funds found to be in his hands, and contends that as the defendants were cited to appear upon the proceedings resulting in this decree, they are now estopped to deny their liability. To this it is answered : First.—The extent of the defendants’ obligation was that the assignee should faithfully discharge his duties as assignee, and duly account for all moneys received by him as assignee. That he did account, and that his account was approved is alleged in the complaint, and, as already shown, the duties to be discharged were due to creditors of the assignor. With the accounting and the discharge of his duty to the creditors of the assignee, the defendants’ liabilities as sureties of the assignor ceased. They did not bind themselves that he should obey every order or conform to every decree or judgment that might be made or rendered. They stand strictly on their contract, and this order or provision of the decree did not come within its terms. People v. Chalmers, 60 N. Y. 154. Second.—But plaintiff cannot sue on this decree because he was not a party to it, and hence was not bound by it. He could not be estopped by the decree from suing the assignee for a larger sum; he might have declined to accept the sum allowed, contending that it was insufficient, and brought action for the real value of the services rendered. It is an elementary principle that no one can avail himself of a judgment as an estoppel who is not himself bound by it. ■
    II. The decree was not intended to clothe the plaintiff with any legal rights, but was intended solely for the benefit of the assignee and should be so construed. It is well settled that an assignee has no authority to employ counsel at the expense of the assigned estate to aid him in the discharge of his duties, but that in such employment he acts in his individual capacity. The court may, in its- discretion, where the necessity of legal aid is shown, allow the assignee a compensation in addition to his commission to pay for legal services as one of the reasonable expenses incurred by him in the discharge of his duties; but such an allowance is part of the assignee’s compensation, and gives the counsel no rights against the funds in the assignee’s hands. Matter of Worthley, 10 Daly, 12; Matter of Johnson, 10 Ib. 123; Matter of Garrick, 13 Ib. 181; Matter of Hazard, 17 N. Y. St. Reporter, 26. The language of the assignment act is to the same effect, viz., that the allowance must be made to the assignee. § 20, subd. 9. Under § 2562, Code Civ. Pro., as to allowances to an executor [or] administrator, for his counsel fees and other expenses, the allowance must be to the executor or administrator, and not to the counsel; and it has been repeatedly held that an allowance to counsel in a decree was improper. Seaman v. Whitehead, 78 N. Y. 306 ; Devin v. Patchin, 26 Ib. 441. A careful examination of the case of Marsh v. Avery, 81 N. Y. 30, will show that the decision has no bearing upon the case at bar. Had the decree been in the form required in the Worthley case, 10 Daly, 12; i. e., of an allowance to the assignee for legal services, the plaintiff would never have thought of bringing this action, for it would have then been perfectly evident that no claim could exist against the sureties. Certainly, the decree is not to be construed as raising any obligation which the court had no authority to create. The sureties were not bound to look to the language of this provision, as they were not interested in the compensation allowed to the assignee; therefore, there is no question of estoppel.
    • HI. But if this decree could by any means be construed to give the plaintiff a cause of action against the defendants, it would so far be void, as in excess of the power of the court. Sec. 24 . of the Assignment Act; Frees v. Ford, 6 N. Y. 176 ; § 20 of the Act; Risley v. Phenix Bank, 83 N. Y. 318 ; Chemung Bank v. Judson, 8 Ib. 254 ; People v. Liscomb, 60 Ib. 559, 570 to 573.
    IV. The authorities cited by the appellant at the special term do not support his contention, but on the contrary, so far as they are to be regarded as bearing upon this case, they are authorities for the respondents. In Casoni v. Jerome, 58 N. Y. 315, the decision of the court was rested upon the ground that “ the question whether the plaintiff’s demand was a debt against the estate, was necessarily determined by the surrogate on the accounting.” That is, the surrogate had adjudged the claim to be one against the estate. In the statement of the case (foot of p. 315), it is said: “And by said decree it was adjudged that there was due to the said plaintiffs from said administratrix the sum of $5,500, the amount of their claim against said estate, which she was directed to pay with costs.” It is not pretended in the case at bar that the court in its decree adjudged that the appellant had any claim against the assigned estate. On the contrary, it is alleged in the complaint, that the assignee was directed to pay “ to this plaintiff, the attorney for the said assignee.” This is a distinct recognition, if it is not absolutely a finding, that the appellant’s claim was not against the estate, but was against the assignee. It is further to be noted that in the case cited the condition of the sureties bond was that the administratrix should “ obey all orders of the surrogate.” In Gerould v. Wilson, 81 N. Y 573, the question was whether the surrogate could direct an administrator after revocation of letters, to pay to a distributee ; and the opinion is mainly devoted to an examination of the power of the surrogate to make such a direction; the further ground for the decision that the sureties were bound by the decree is rested upon the fact that their bond was conditioned for the compliance by the principal with all orders of the surrogate.
   By the Court.—Sedgwick, Ch. J.

The complaint averred the making of an assignment by one Brick of all his property to one Campbell, “ in trust for the benefit of the creditors of Brick, in pursuance to the statute in such case made and provided ” ; also that Campbell executed his bond conditioned “ that if the said Eobert Campbell should faithfully- execute and discharge the duties of such assignee, and duly account for all moneys received by him as such assignee, then the said obligation to' be void, otherwise to remain in full force and effect”; that the defendants executed said bond as sureties ; that Campbell entered upon the discharge of his duties as assignee and presented an account of his doings as such: that “ after due service of citations upon all persons interested in the said proceedings, including the defendants as the sureties on'said bond,” the account was sent to a referee; that “ thereafter the said referee’s report was confirmed by the court and a final decree was entered in which decree the said Campbell, as said assignee, was directed to pay from the funds in his hands as assignee, within 30 days from the entry of said decree, to this plaintiff the attorney for the said assignee, the sum of $2,123.37 with interest; ” that the said indebtedness was necessarily incurred by the said assignee for legal services performed by the plaintiff as an attorney at law on behalf of and as the attorney of the said assignee “ in the care, preservation and protection of the said assigned estate; ” that at the time of the entry of the final decree, the' assignee had on hand, a part of the assigned estate, more than the sum of said $2,123.37 ; that the plaintiff has demanded payment of the balance due him óf the last mentioned sum, both of the assignee and of these defendants, “ and that the said assignee should obey the said decree, but payment of said balance has been neglected and the said Eobert Campbell has not obeyed the direction aforesaid of said decree ; ” that the Court of Common Pleas directed the said bond to be prosecuted by and on behalf of the plaintiff for his benefit ; that the said Campbell has paid the sum $1,250 on account, wherefore the complaint demanded judgment for the sum of $873.37.

The defendants demurred severally, on the ground that the complaint did not state a cause of action.

The court below sustained the demurrer, and upon the decision then made, the judgment was entered, and from this the present appeal was taken.

The plaintiff was not a party to the accounting, and the final adjudication was not in his behalf, in the sense that it would give him a cause of action upon it directly. Up to the time of the adjudication, the plaintiff’s rights were confined to a cause of action he had against Campbell personally, and not relatively as assignee. This cause of action was not affected by the conduct of the parties to the accounting. As he was not bound by the adjudication, so he could not take advantage of it as an adjudication; and if Campbell was not liable to the plaintiff upon it, Campbell’s sureties would not be liable. If any use could be made of the adjudication, in an action between the plaintiff and Campbell, the action it would tend to support, would be against Campbell personally, and not as assignee.

The learned counsel for appellant claims, that the direction of the order to pay to the plaintiff established a duty upon Campbell, as assignee, to pay to the plaintiff, and the failure to perform this duty, made the sureties liable.

The single phrase that directs the payment is not to be taken and construed by itself. Its meaning and effect are to be ascertained from it and its connections in the proceeding.

The plaintiff had no claim against the estate. He did not present a claim. If that were necessary to the formation of a cause of action, it was to be pleaded. There is, therefore, no adjudication as in Casoni v. Jerome, 58 N. Y. 315, that he had a claim. In Marsh v. Avery, 81 N. Y. 29, it appears that the attorney who made the claim, must have been a party to the proceedings before the surrogate, for he was the respondent in the appeal.

It is clear that on the accounting, the claim made by Campbell as to this matter, was not made as assignee. It was made for himself individually and personally. He personally was giving account of his actions as assignee. He took the position that he had become personally liable for services of the plaintiff. If he had paid for those services he would have had a right to reimbursement of the money he had paid. If, as in this case, he had not paid, he would have a right, as indeed was competently adjudged, to obtain leave to pay for the services out of funds of the estate. If he then paid, the transaction would be in effect, the transfer of money held by him,-as assignee, to himself personally, and then the payment of it in discharge of his own obligation. Such a payment would be payment by him personally and not as assignee. The neglect to pay would not be an omission of duty as assignee. So long as payment was not made, the money would be part of the assigned estate. There might be a case where it would be his duty to refuse to pay, even after provision for reimbursement had been made. When the provision was made for the future payment, it was implied that the payment was to be necessarily made for the purpose indicated. The fund was not to be left in his hands or set apart for any purpose, other than as disbursement. So that the direction to pay to the attorney, was not more than a direction to perform the condition upon which Campbell’s right to have the fund set apart, depended.

As in all that would follow the order, Campbell would act for his own personal interest and not as assignee, I am of opinion,, that the omission to pay to the attorney, was not a breach of duty by Campbell, as assignee, and therefore that the sureties are not liable for the omission.

The judgment should be affirmed with costs.

Teuax J., concurred.


text:
    AARON B. COHU, as Executor, &c., Respondent v. JOSEPH HUSSON, Appellant.

      Plaintiff—executor, as to costs against on verdict of jury when a set-off is pleaded,—Construction of answer on question of costs, as to whether it sets tip a counter-claim or set-off.

    Where, in an action brought by a plaintiff as executor, defendant answers, among other things, a set-off, and there is a general verdict for the defendant, he is entitled to have his costs taxed and to have inserted in the judgment an award of them in his favor against the plaintiff. §§ 3246— 1835 and 1886, have no application to such a case.
    Where matter is pleaded both as a counter-claim and as a set-off, and the prayer prays a dismissal of the complaint, and for judgment against the plaintiff on the counter-claim and set-off for the amount thereof, yet if the averments can only sustain the defence of set-off, the answer will be regarded on the question of costs as setting up a defence of set-off only.
    The question as to whether the costs so awarded by the judgment should be paid by the estate, or by the plaintiff personally, not being before the court, was not passed on.
    Before Sedgwick, Ch. J., and Dugro, J.

      Decided March 5, 1889.
    The action was commenced by one Edward Ralph. The complaint counted on a promissory note for $750, made by defendant to the order of Henry S. Cohu, dated December 11, 1878, payable four months after date, and alleged that prior to the commencement of the action said Cohu died intestate, and letters of administration were duly issued to certain persons who prior to the commencement of the action, and after the maturity of the note, assigned and transferred it to the plaintiff. A supplemental complaint was pursuant to an order in that behalf made, served by Joseph S. Cohu, averring that Edward Ralph had died subsequent to the commencement of the action ; that letters of administration were duly issued on his estate, and that the administrator had, subsequent to the commencement of the action and after the maturity of the note, assigned and transferred it to him, Joseph S. Cohu, for value.
    The defendant, by his amended answer to the original complaint and his answer to the supplemental complaint, set up, among other things, “ as and for a third defence and by way of counterclaim and set-off,” a promissory note for §1,000, made and delivered by said Henry S. Cohu to him, bearing date the first day of June, 1878, payable six months after date, alleged that said note remained wholly due and unpaid, and insisted that it was in his hands a valid subsisting set-off against the note sued on.
    The prayer of this answer was that the complaint be dismissed, and that defendant have judgment on this counterclaim and set-off for §1,000, with interest and costs.
    After this Joseph S. Cohu died leaving a will appointing the present plaintiff Aaron B. Cohu executor, and an order was made on application of the counsel for Aaron B. Cohu, substituting him as executor of the will of Joseph S. Cohu as plaintiff, in place and stead of Joseph S. Cohu, reviving and continuing the action in the name of Aaron B. Cohu, as executor of the will of Joseph S. Cohu, and restoring the action as so revived to the day calendar for trial with the same force and effect as if said action had been instituted in the first instance in the name of the substituted plaintiff. Thereafter the issues joined were tried before the court and a jury, and the trial resulted in a general verdict for the defendant. Defendant presented a bill of costs to the clerk and requested him to adjust it and insert the adjusted amount in the judgment. The clerk refused to tax the bill without a certificate under §§ 1835 and 1836 of the Code, to which refusal the defendant excepted. Defendant then moved at special term for a review of the clerk’s ruling, and for an allowance of the bill of costs. The court at special term denied the motion, writing as follows : “ The plaintiff did not recover in this action because the defendant had a counter-claim against him as executor, that was as large as his claim against the defendant. Costs cannot be recovered against the plaintiff under §§ 1835 and 1836 of the Code of Civil Procedure, because no judgment for a sum of money only has been rendered against him in his representative capacity (§ 1835), and no demand was made as required by § 1836, before the commencement of an action. Section 1836 contemplates that before costs should be awarded against an executor there shall have been a demand for payment of the claim and a refusal of the executor to comply with such demand. There is no evidence before me of such demand and refusal. Section 3246 does not enlarge the defendant’s rights to costs. Motion denied without costs.”
    From the order denying the motion entered on this decision, the present appeal is taken by the defendant.

      Abram Kling, attorney and of counsel for respondent, argued:—
    I. Section 1835 of the Code provides that where judgment is rendered against an executor or administrator in an action brought against him in his representative capacity, costs shall not be awarded against him. In this case an action was brought against the plaintiff in his representative capacity upon the note set forth by the defendant in his counterclaim, and upon which he succeeded. It will be seen upon an examination of section 506 of the Code, that a person may set up as a defence a counterclaim in an action brought by an executor or administrator in the same manner as if he has originally brought his action thereon against such executor or administrator, and he is not required,, under this section of the Code, to bring a separate action. It is therefore manifest that the defendant’s counterclaim under section 506 of the Code, and upon which he succeeded, is an action against the executor in his representative capacity as provided by section 1835 of the Code, and the same rule must prevail as if the defendant had brought an affirmative action against the plaintiff as executor.
    II. By section 1836 of the Code, before the defendant could succeed upon his claim set forth in his answer and be entitled to costs, he must show that his demand was presented within the time allowed by notice, or that the claim was unreasonably resisted or neglected, or that the defendant refused to refer the claim as prescribed by law, in which event the court will furnish a certificate as required by that section of the Code. In this case it is not pretended that Husson ever presented the note or that it was unreasonably resisted,- and no certificate was ever obtained from the judge before whom the case was tried, and the clerk properly refused to tax the costs as required by section 1836 of the Code. It has been held that a counterclaim is an affirmative cause of action in favor of the party pleading it, and it has the same effect as if an action had been brought by him against the executor or administrator. It has been urged that by section 3246 of the Code an action may be brought by or against an executor or administrator in his representative capacity, and costs must be awarded as by or against a person prosecuting or defending in his own right except as otherwise prescribed by sections 1835 and 1836 of the Code, which does not change the situation as claimed by the appellant.

      Edward P. Wilder, attorney and of counsel for appellant, argued:—
    I. Sections 1835 and 1836 have no application to this case; nor would a certificate under those sections be appropriate to this action. Those sections relate exclusively to actions against executors and administrators. This is not such an action. They relate to the punishment of executors, etc., who unreasonably' resist the payment of just claims against their deceased. No question of that sort’ arises here.
    The learned judge below asserts in his “Opinion” that the counterclaim was against the plaintiff as executor. An inspection of the defendant’s amended answer will show this to be error. The counterclaim was not even against plaintiff’s testator, Joseph S. Cohu—much less could it run against plaintiff as his executor. Neither plaintiff nor his testator was ever under any duty to pay the $1,000 note set up in the counterclaim. Nor yet was Ralph, their predecessor. No affirmative judgment for any sum of money could be rendered in this action against either the plaintiff as an executor, or any of his predecessors on this record. Hence no demand upon plaintiff would have been proper, and no right to costs could have grown out of such demand. The set-off if established, defeats the action, but it does not authorize an affirmative judgment against the assignee. Code, §§ 503, 506; Code, § 503, last clause. The Code provides precisely how such costs shall be taxed, and that the judgment for such costs shall run against the executor personally in form, but shall in fact be enforced only out of the estate which he represents. Code, § 3246. In this case such enforcement Avould be out of the estate of Joseph S. Cohu, the plaintiff, who purchased the note and this litigation from Ralph’s administrator.
    II. It is only in actions against executors and administrators, not in actions by them, that any exemption from costs is provided for. Fox v. Fox, 22 How. 453 ; Howe v. Lloyd, 9 Abb. N. S. 257; 2 Lans. 235. The statute applies to actions, not counterclaims or set-offs. And the action must have been commenced against the executor. If only revived and continued against him, costs follow a-verdict against him as a matter of course. Merritt v. Thompson, 27 N. Y. 225; Lemen v. Wood, 16 How. 285; Benedict v. Caffe, 3 Duer. 669 ; Mitchell v. Mount, 17 Abb. 213. A fortiori must this rule apply when an executor himself revives and prosecutes an action to ultimate failure and defeat. A plaintiff who sues as executor, on judgment being rendered against him, is liable for costs, either personally or to be paid by the estate, in all cases where one suing in his own right would pay costs. Curtis v. Dutton, 4 Sand. 719; Woodruff v. Cook, 14 How. 481; Columbian Ins. Co. v. Stevens, 37 N. Y. 536; 35 How. 101;- 4 Abb. N. S. 122 ; Feig v. Wray, 3 Civ. Pro. R. 159 ; 64 How. 391; Hood v. Hood, 12 Daly, 114.
    III. The action being one at common law for the recovery of money only, and plaintiff having failed to recover, defendant is entitled to costs, as of course. Code, § 3229.
   By the Court.—Sedgwick, Ch. J.

The action was upon a promissory note, made by the defendant. The plaintiff assumed to represent the estate of Joseph S. Cohu, deceased.

The answer, among other things alleged, that the amount of a certain note made by one Henry Cohu should be offset against the plaintiff’s demand. The defendant succeeded in establishing this, for reasons not necessary to consider. It is not material that Henry Cohu had died. It may be material to say, that the offset would not lead to a recovery of a judgment for any sum of money against the plaintiff representing Joseph S. Cohu, and that the defence of off-set was equivalent to a defence of extinguishment or payment.

The result was that the plaintiff failed to establish his action. As for that reason he was not entitled to costs, the defendant was entitled to them, unless the plaintiff was exempt from liability for costs because he was an executor.

The 3246th section of the Code says, that in an action brought by an executor, in his representative capacity, costs must be awarded as in an action by a person prosecuting in his own right, except as otherwise prescribed by sections 1835 and 1836. These last sections regulate only the award of costs in an action brought against an executor.

I think, therefore, that the clerk should have taxed the costs and have inserted in the judgment an award of them in favor of the defendant against the plaintiff. Section 3246 directs, as to whether the estate or the plaintiff personally, shall pay thém. This is not a question here.

The order should be reversed Avith $10 costs, and an order entered reversing decision of clerk, with proper directions to him.

Dugro, J., concurred.


text:
    OSWALD OTTENDORFER, et al., as Executors, &c., Appellants v. MAICHO FORTUNATO, Respondent.

      Municipal ordinances. Effect of a subsequent ordinance limiting the extent of an improvement authorized by a prior one upon a contract made under such prior one for the doing of the work thereby authorized—As to injunction against contractor enjoining him against prosecuting his work except to the extent authorized by the subsequent ordinance.

    'Where a municipal ordinance authorizes certain work and a contract is entered into between a contractor and the municipality through its proper officer in conformity with such ordinance for the doing of such work, such contract remains in full force with the liabilities of the respective parties that the law attaches thereto, notwithstanding the passage of a subsequent ordinance altering, diminishing, or limiting the extent to which the work was authorized by the first ordinance.
    Until the municipality acts on the later ordinance, and by its proper authorities forbids the contractor going on under his contract, he has the right to pursue the work in conformity therewith.
    Under such circumstances a citizen of the municipality claiming that he will be seriously injured by the prosecution of the work beyond the extent authorized by the later ordinance, cannot enjoin the contractor from proceeding with his work in conformity with his contract.
    Before Sedgwick, Ch. J., and Dugro, J.

      Decided March 5, 1889.
    Appeal by plaintiffs from an order dissolving a preliminary injunction and denying motion for the continuance of an injunction.
    STATEMENT OF THE CASE BY THE COURT.
    In March, 1888, the board of aldermen passed an ordinance, that 12th/ avenue, from 133d street to 135th street, be regulated and graded, the curbstones set and sidewalks flagged, etc., under the direction of the commissioner of public works. Afterwards the contract for the performance of the work was duly entered into by the defendant and the city. The defendant legally proceeded to the performance of the work, beginning at the south end. Before the work passed 134th street, the common council passed an ordinance that the “ ordinance adopted, etc., providing that 12th avenue from 133d to 135th streets be regulated and graded, etc., under the direction of the commissioner of public works, be and it hereby is amended to read as follows: That 12th avenue from 133d to 134th streets be regulated and graded, the curbstones set and sidewalks flagged a space four feet wide through the centre thereof, under the direction of the commissioner of public works.”
    The plaintiffs were owners of vacant land on 12th avenue from 134th to 135th streets and the complaint averred that this land would be damaged if the work proceeded beyond 134th street. It was averred that the damage would be caused by a deep cut through the land, being made by the improvement, into which sand, of great value, would run from the plaintiffs’ land. After the passing of the last ordinance, the plaintiffs requested the defendant to refrain from going on with the work beyond 134th street. The defendant refused to refrain as requested, and the plaintiffs brought this action for an injunction to enjoin the defendant from proceeding with the work beyond 134th street. A preliminary order of injunction was made. This was vacated upon motion and this appeal is from the order made upon that motion.

      John G. Shaw, attorney and of counsel for appellants, argued:—
    The common council has the sole authority to determine whether a street shall be regulated and graded and to what extent. Charter 1873, section 17, subd. 10—as amended June 13, 1873; Matter of Roberts, 25 Him 371. The fact that the commissioner of public works had entered into a contract for the regulating and grading of the street according to the terms of the first resolution, did not prevent the common council from passing another resolution rescinding the first ordinance or modifying it by limiting the work, so that only a smaller portion of the avenue should be regulated and graded. The powder to pass this ordinance is a legislative power, and it is well settled by authority that it was not competent for the municipality to tie up and embarrass the execution of their public duties, whether legislative or executive, by contract or otherwise; in other words, it was not in the power of the common council to bind its legislative capacity by any contract so as to disable itself from enacting any law that might be deemed essential for the public good. Britton v. The Mayor, 21 How. 251. A similar question was decided in the Court of Appeals in the matter of the Protestant Episcopal Church School, 46 N. Y. 178. The only question that can arise in either of the two cases above cited, is as to the responsibility of the city to the contractor for damages for breach of the contract, and as to that question it is now well settled that the city would be liable in such a case. Baird v. Mayor, 83 N.

      Y. 254. There was annexed to the opposing affidavits below an opinion of the corporation council to the effect that the resolution of October, 1888, amending the ordinance so as to restrict the work to a point coincident with 134th street would not affect in any way the contract of the defendant with the department of public works or the contractor’s rights under the contract. It is apparent in view of the decision in the two cases above quoted, viz.: Britton v. Mayor, 21 How. 251, and the Prot. Episcopal Church School, 46 N. Y. 176, that this contention on behalf of the city is without foundation.
    There is no such thing as a vested right to the performance of a. contract. If there were the contractor could file a bill in a court of equity for the specific performance of the contract. The city could break its contract, but would remain liable for damages for such breach.

      Charles W. Dayton, attorney and of counsel for respondent, argued:—
    I. No authority was cited below to establish the position that a citizen can, in an action, restrain the performance of a public work under a contract lawfully made and carried on.
    II. The mayor, etc., are making the improvements in question. The defendant is the instrument of the municipality. If plaintiffs are being injured, they should look to the city for damages ; if they are entitled to an injunction, it should be against the power which set and keeps the defendant in motion, and as the city is not a party to the action no injunction should be granted. The moving papers do not allege fraud, bad faith, or illegal conduct, and Morgan v. City of Binghampton, 102 N. Y. 504, is applicable. The plaintiffs’ contention amounts to this: That it is in the power of the city to annul a part of a contract lawfully entered into and begun, and that the court, upon the ¿omplaint of a citizen, will enjoin one party to that contract without notice to the other. It is submitted that this position is wholly untenable.
    III. The “ Matter of the Protestant Episcopal School,” 46 N. Y. 178, cited by the plaintiffs, was an application to vacate an assessment, because proposals were advertised for prior to the passage of the act which authorized the construction of a sewer. The court held that “ An assessment for a sewer contracted for before such general plan had been devised was void.”
    It will be readily seen that this authority has no application to the case at bar. The facts are entirely different and the element of “legislative control” is wholly wanting.
   By the Court.—Sedgwick, Ch. J.

The amending ordinance did not abrogate the contract or affect its obligations. Baird v. The Mayor, 83 N. Y. 259. However, “ the city could break its contract but would remain liable for such breach.” In this case, unless the contract was broken by the city, the authority of the defendant to complete the contract was continued. The breach referred to, is such an one as would be a prohibition to the contractor from going on with the work.

The amending ordinance was not retroactive. The contract remained in full force with the liabilities of the respective parties that the law attaches to such a contract. Until the corporation acted upon the ordinance and by its proper authorities forbade the contractor going on under the contract, he had a right to pursue the work. In fact, the commissioner of public works insisted that the work was to be prosecuted. I do not see that this case is like the cáse of the Protestant Episcopal School, 46 N. Y. 179. There was involved a competent prohibition of the work, enacted by the legislature of the state, and which directed both the city and the contractor. The power of the legislature could not be foreclosed “ by any contract of a municipal corporation.” The law created at once a duty. In the present case, whether or not there was a breach of contract, in a prohibition from continuing the contract, is a matter of fact. The passing of the amending ordinance is evidence perhaps of an intention on the part of the common council, that the work should be stopped some time in the future. That intention was not carried into effect, and indeed was not shared by all of the agents of the corporation, which was a party to the contract. The contract therefore was an authority for the defendant to continue his work.

I am of opinion, that the order should be affirmed with $10 costs.

Dugro, J., concurred.


author: By the Court.—Truax, J.

text:
    EDWARD M. JOHNSON, Respondent v. THE AMERICAN WRITING MACHINE CO., Appellant.

      Statute of Limitations—Amendment to complaint on the trial—Evidence under same, etc.

    Plaintiff brought an action in September 1886, to recover for services pier-formed from April, 1880, to July, 1881, and one of the defences set up in the answer was the statute of limitations, yet plaintiff went to trial without asking to amend his complaint, and on the trial was allowed, the defendant objecting, to amend his complaint by alleging “that he was not to be paid for his services until the defendant was able to piay running expenses, and was also allowed to prove, defendant still objecting, that the defendant became able to pay its running expenses on the 1st day of January, 1883.” Held, that the motion to amend should have been denied on the ground of the plaintiff’s laches in moving for amendment. It is no answer that the defendant was not misled in his defence. The plaintiff’s motion should have been denied. Another reason for reversal is, that against the objection of the defendant, the plaintiff was allowed to show that defendant became able to pay running expenses in 1883.” This was the reception of evidence on an issue not presented by the complaint, in other words, the complaint as amended did not state the cause of action on which plaintiff recovered. That the defendant became able to pay its running expenses was a condition precedent, which should have been alleged in the complaint, and it was error to admit evidence of such material fact or condition not so alleged.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.

      Decided March 5, 1889.

      Hinsdale & Sprague, attorneys, and Edward E. Sprague of counsel for appellant, argued:—
    The court erred in allowing the complaint to be amended on the trial without giving defendant time for preparation to meet the new issue of fact. The action was begun May 18, 1887. The original complaint alleged services rendered between April 1, 1880, and July 1, 1881, to which defendant (besides denying the contract of employment and promise to pay) pleaded the statute of limitations so far as regarded services rendered prior to May 18, 1881. This answer was served nearly a year before the trial, and the defect in the cause of action as pleaded thus brought to the attention of plaintiff’s counsel, who must have known, during all that long period, that defendant would make on the trial the exact objection which was made, and that if the proof conformed to the pleading the objection would be a fatal one. Nevertheless plaintiff made no attempt to amend either of course or by leave; but on the trial, to avoid an inevitable nonsuit, he asked permission to insert a new allegation entirely outside of the framework of his complaint, relating to a fact of unusual occurrence in such transactions, and the existence of which (if it had any except in the legal exigencies of his case) he knew just as well when the answer was served, nearly a year before, as he did then. He asked leave to amend his complaint by alleging that the services, though rendered more than six years prior to the commencement of the action, were not to be paid for until the company should begin to earn operating expenses. We contend that the allowance of the amendment was not, under the circumstances, “in furtherance of justice,” nor upon terms which should have been regarded as “just,” and that it was an abuse of discretion which calls for a reversal of the judgment.
    The provisions of both the new and old Codes evidently contemplate that the power of amendment shall be exercised with care, and with due regard to the rights of the other party. And such has been the course of the decisions, both before and under the Codes. Hofnagle v. Leavitt, 7 Cow. 517, presented similar questions to the one at bar. There the defendants had relied upon technical objections to complaint, and had not prepared for trial upon the merits. The court on appeal held (reversing a judgment for' plaintiff), that while it was proper to amend the complaint to conform to the proof, there should have been a new trial, to enable defendant to prepare his defence. In the case at bar we do not need to rely upon such an extreme doctrine, because here the defendant did not rely wholly upon a technical defence, but fully prepared for trial on the merits, so far as the claim presented in the pleadings was concerned. Union Bank v. Mott, 11 App. 42, is a leading case upon the subject. It is there laid down as a fundamental rule that an amendment upon the trial should never be granted at the expense of the opposite party; that on allowing an amendment necessary to complete the facts alleged which otherwise would not show a cause of action (precisely this case), defendant should be allowed to answer as a matter of right, and that in such case the court cannot require that testimony already taken in the case should stand. To same effect, Harriott v. Wells, 9 Bosw. 63 ; Ballou v. Parsons, 11 Hun, 602. In Wild v. Hexter, 50 Barb. 448, it is held that if defendant makes it appear that he is misled or surprised, the amendment can be allowed at the trial only upon terms ; “ usually that the trial be postponed and the party asking the favor pay costs.” This court said in Bruenich v. Wesselmann, 49 Super. Ct. 31, 34, that if upon a motion to amend made upon the trial it becomes necessary that the. other party should have further opportunity to make proof, the application therefor ought to be granted. And the court of appeals, in the case of Romeyn v. Sickles, 108 N. Y. 650, uses very emphatic language, which fully covers the point at issue here. “ The pleadings could not lawfully be amended in a material respect, except at a time which would give the party against whom the amendment is allowed a right and opportunity to meet by proof the allegations made against him. There are cases which, having proceeded: in disregard of the pleadings, and wherein the whole case has been presented by both parties in their proofs, without objection, in which an amendment has been allowed, after the evidence is closed, to conform the pleadings to the proof; so, also, where the court can see that a trial has been had upon the real issue without objection, it will not disturb a recovery, .... but when the objection has been properly taken, or an exception presents the question, it is fatal to a recovery that it does not conform in all material respects to the allegations of the pleadings.”
    It is difficult to resist the application of these well settled principles to the case at bar. The change was emphatically a material one, amounting almost to a new cause of action. It brought up questions of fact, as to the business done by the company, which were so clearly irrelevant to the issue as presented by the pleadings, and which so evidently required a detailed examination of the books and affairs of the company, that it should not have needed the assertion of .counsel, and his offer of proof, to have convinced the court that defendant was unprepared to try those questions; yet the court allowed the plaintiff, who had been guilty of such laches in asking for the amendment, to practically take an inquest against the defendant, on the proof of facts not even suggested by the pleadings and upon which defendant was unprepared.

      Charles M. Stabler, attorney for respondent, argued:—
    I. The amendment of the complaint was clearly within the power of the court, Code, §§ 539, 540, and 723.
    II. The defendant was not prejudiced by the amendment. (1) The amendment did not set up a new cause of action, but merely inserted a material allegation affecting the time of accruing of the cause of action already pleaded. Davis v. N. Y., L. E. &. W. R. Co., 17 N. E. Rep. 733; Court of Appeals, June 29,1888 ; Copeland v. Johnson Mfg. Co., 3 N. Y. Supplement 42, opinion of Daniels, J.; see also Minton v. Home Benefit Soc., 1 N. Y. Supplement, 838; a case of amendment very similar in 'nature and scope to the one in question. (2) The plaintiff submitted no “ proof ” either by affidavit or other sworn statement, that it was prejudiced by the amendment. Defendant’s counsel merely claimed that he was unprepared to try that issue, but did not even go so far as to state that defendant was in fact “ actually ” prejudiced by the amendment.' It is not likely he would have omitted such a statement if he had thought it possible to prove that the company was paying running expenses prior to May 18, 1881. Under the Code and cases he was bound to “ prove ” that he was “actually misled ” “ to his prejudice ” by the plaintiff “substantially” changing the claim. The amendment did not change the claim at all, but merely the time of payment. Code, §§> 539, 723 ; Catlin v. Gunter, 11 N. Y. 368, 374, top; Place v. Minster, 65 Ib. 89, 98, bottom.
    III. But if defendant had proved all these matters, yet even then the amendment was discretionary with the court, and this discretion will not be interfered with except for clear and substantial reasons. Code, § 539, last two sentences. Dougherty v. Valloton, 38 N. Y. Super. Ct., 455.
   By the Court.—Truax, J.

The issues to he determined as presented by the original pleadings, were whether the plaintiff rendered services to the defendant at its request, from the 1st day of April, 1880, to the 1st day of July, 1881, and- the value of those services.

The plaintiff was allowed,- the defendant objecting, to amend his complaint on the trial by alleging that he was not to be paid for his services until the defendant was able to pay running expenses ; and he was also allowed to show, the defendant still objecting, that the defendant became able to pay its running expenses on the 1st day of January, 1883.

The action was begun in September, 1886. It was tried May 24, 1888.

One of the defences set up in the answer was the statute of limitations. The plaintiff, on the 29th day of July, 1886, before the commencement of the action, wrrote a letter to the defendant in which he referred to the financial condition of the defendant, and to the fact that he had a claim against the defendant.

On the 23d day of December, 1887, he wrote a letter to the attorney of the defendant, which letter was read and used by his, the plaintiff’s attorneys, on the trial, in which he said that he was to be paid for his services as soon as the defendant should realize more than the running expenses of its business ; and yet, notwithstanding the defence of the statute of limitations, which was a good defence as matters then were, he went to trial without asking to amend his pleading, and during the trial asked and was granted leave to amend his complaint as above stated.

We think that the motion to amend should have been denied on the ground of the plaintiff’s laches in making the motion. That the defendant had been informed by the letters above referred to of the real nature of plaintiff’s cause of action, does not excuse the plaintiff’s neglect' to properly compare his complaint. As was said by the Court of Appeals in Southwick v. The First National Bank, 61 How. 170, it is no answer that the defendant was probably not misled in his defence. A defendant may learn outside of the complaint what he is sued for, and thus be ready to meet plaintiff’s case upon the trial. . He may even know what he is sued for when the summons alone is served upon him, yet it is his right to have a complaint to learn from that what he is sued for, and to insist that that shall state the cause of action which he is called upon to answer.”

We think that the orderly administration of justice and the circumstances disclosed on the trial of this case, required that the plaintiff’s motion to amend should have been denied; but there is another reason why the judgment should be reversed.

The plaintiff was allowed to show, the defendant objecting, that the defendant became able to pay its running expenses in 1883. This was an issue not presented by the amended complaint. In other words, the complaint as amended did not state the cause of action on which plaintiff recovered.

That the defendant became able to pay its running expenses was a condition precedent, which should have been alleged in the complaint. Tooker v. Arnoux, 76 N. Y. 397.

It was error to allow evidence of a fact that was not alleged in the complaint.

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

Sedgwick, Ch. J., and Dugro, J., concurred.


text:
    CATHARINE VICTORY, Respondent v. BRIDGET FORAN, Appellant.

      Practice on appeal—Order appealed from must be duly entered and appear in the printed case.

    In this case, although the notice of appeal states that defendant appeals from an order made after the verdict was rendered, refusing to grant a new trial, the printed case did not contain any such order.

      Held, that the court will not review on appeal, an order denying a motion for a new trial, unless that order shall have been formally entered and appears in the printed case on appeal.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.

      Decided March 5, 1889.
    Appeal from a judgment entered upon the verdict of a jury, and from an order refusing to grant a new trial, made after verdict was rendered.

      G. H. & F. L. Crawford, for appellant.

      James A. O'Gorman, and Christopher Fine, for respondent.
   By the Court.—Truax, J.

Although the notice of appeal states that the defendant appeals from the judgment and from the order refusing to grant a new trial made after the verdict was rendered, yet the case does not contain any such order.

We have frequently held that we will not review on appeal an order denying a motion for a new trial unless that order shall have been formally entered and appears in the printed case.

There was no error in the way the case was presented to the jury. In fact, there are but two exceptions in the case ; one on the admission of testimony; the other on the refusal to dismiss the complaint.

The first exception was not referred to by the appellant on the argument. It was not well taken because the testimony that the question brought forth tended to show in a proper way the defendant’s negligence. Nor was it error to refuse to dismiss the complaint. There was evidence that would warrant the jury in finding that the plaintiff was injured without negligence on her part through the negligence of the defendant.

While the damages seem to. be quite large we cannot say that they are so large that the jury must have been influenced by prejudice or passion in awarding them.

Judgment affirmed, with costs to the respondent.

Sedgwick, Ch. J., and Dugro, J., concurred.


text:
    FRANCIS A. WILLIAMSON, Respondent v. THE NEW YORK, NEW HAVEN and HARTFORD RAILROAD COMPANY, Appellant.

      Common carrier—Warehouseman—Duties and liabilities of.

    At the close of the plaintiff’s case on the trial, defendant moved to dismiss the complaint on the ground that its liability as a common carrier had ceased, owing to the failure of the defendant to call for his goods ; and that the plaintiff had failed to make out a case against it as a warehouseman. The motion was denied and the defendant excepted to the ruling.

      Held, that this ruling was not erroneous. The failure of defendant to deliver goods deposited with it as a warehouseman, placed upon it the burden of accounting for the goods. The goods had disappeared. The defendant failed to show how or when, or to prove that they were lost without any negligence on its part. It was bound to deliver the goods on demand, or to account for them under such facts and circurnstances as would relieve it from this liability. Failing in this, it must answer to the plaintiff for the value of the goods. The case of Claflin v. Meyer, 75 N. Y. 260, considered in its bearings upon this case.
    Before Sedgwick, Ch. J.,Truax and Dugro, JJ.

      Decided March 5, 1889.
    Appeal from a judgment entered upon the verdict of a jury, and from an order denying the defendant’s motion for a new trial, etc. The facts in the case fully appear in the opinion of the court.

      Page & Taft, attorneys, and Henry W. Taft of counsel, for appellant.

      Ingraham & Allen, attorneys, and James 8. Allen of counsel, for respondent.
   By the Court.—Truax, J.

The action was brought by plaintiff- to recover the value of certain goods that defendant as warehouseman held for him.

There are some exceptions to the admission of certain questions that tended to show the value of such goods. These exceptions were not well taken. The evidence was not strong, but it was relevant to the question of . value. Its weight was a question for the jury, and they were properly instructed by the court on that point.

The goods had been delivered to the defendant as a common carrier, but its obligation as a common carrier had ceased, and it was holding the goods simply as a warehouseman.

At the close of the plaintiff’s case the defendant moved to dismiss the complaint on the ground that its liability as a common carrier had ceased owing to the failure of the plaintiff to call for his goods, and that the plaintiff had failed to make out a case against it as a warehouseman. This motion was denied and the defendant excepted.

We are of the opinion that this ruling was not erroneous. The plaintiff had at this point made out his case. The failure of the defendant to deliver upon demand goods deposited with it as a warehouseman, put upon it the burden of accounting for them. See Schwerin v. McKie, 5 Robts. 404; affirmed 51 N. Y. 180, and cited with approval in the Bank of Oswego v. Doyle, 91 N. Y 42.

. The goods had disappeared, how and when was for the defendant to show, and having failed to show this fact, every presumption is in favor of the plaintiff’s right to recover the value of the missing goods. The defendant was liable as bailee or warehouseman, and as such was bound to deliver the goods on demand, or to prove that they were lost without any negligence on its part. Bank of Oswego v. Doyle, 91 N. Y 42.

It was intimated on the trial that the goods had been stolen. One of the witnesses for the defendant, the station-master, in whose charge the goods were when last seen, was asked on cross-examination if the defendant had made any effort to trace out the burglary ? This was objected to as immaterial, irrelevant and incompetent. The objection was overruled and the defendant excepted.

We think that this question was proper on cross-examination. It tended, though perhaps in a slight degree, to show that the witness himself did not believe that the goods had in fact been stolen, because he had made no effort to find out who the stealer was.

The court charged as follows: You perceive that one man in this case was called upon to perform numerous duties. You will consider whether the duty of attending to the giving of tickets and the duty of looking after the baggage and any other duties which he says he performed, was more than could be expected to be performed with reasonable accuracy and with reasonable care by one man.” This portion of the charge was excepted to by the defendant.

We are of the opinion th&t this was not erroneous. The fact to which the attention of the jury was called, though not an important fact, was evidence of defendant’s negligence sufficient to authorize the court to submit the question to the jury. A warehouseman is liable for his negligent omission to take reasonable and prudent precaution to guard goods in his custody from thieves. Faucett v. Nichols, 64 N. Y. 377.

The court also called the attention of the jury to the fact which was in evidence, that the morning of the day on which it was claimed the goods were lost, some hours elapsed before the person acting as baggage-man discovered that a door had been open, and he left that to the jury as some evidence on the question whether or not ordinary care had been given to the custody of the goods. Subsequently the court said that he did not call the attention of the jury to this fact as being of itself evidence of want of care, but simply as one of the surrounding facts connected with the case which might or might not affect the jury as they gave more or less weight to it.

We are of the opinion that there was no error in the charge as modified. But the fact remains undisputed that the defendant was in possession of the plaintiff’s goods as a bailee or warehouseman, and that it has not returned to the plaintiff those goods. .The burden is with the defendant to explain why it did not deliver the goods to the plaintiff on demand.

This case is to be distinguished from Claflin v. Meyer, 75 N. Y 260, in which case it conclusively appeared that the goods had been stolen, and it was there held that the burden of proving that the stealing was occasioned or was not prevented by reason of some negligence or omission of due care on the part of the warehouseman, was upon the plaintiff, while in this case it does not conclusively appear that the goods had been stolen.

Judgment and order affirmed with costs.

Sedgwick, Ch. J., and Dugro, J., concurred.


text:
    THOMPSON MARTIN, Respondent v. THEODORE C. GROSS, Appellant.

      Order of arrest, vacation of same on the papers upon which it wets granted.

    A motion to vacate an order of arrest may be made upon the papers upon which it was so granted, and when so made, whether the defendant has or has not been arrested. The power of the court to vacate an order of arrest, before the service thereof, is one of the inherent powers of the court to be exercised within the limitations prescribed by §§ 567 and 568 of the Code of Civil Procedure.
    In this case the order of arrest was granted on affidavits, without a complaint being filed, and of the four causes of action appearing, three of them were held and owned by plaintiff as assignee, and in regard to two of the three, the averments in the affidavits were all made upon information and belief, and did not warrant the issue of the order of arrest. No man should be arrested civilly upon mere information and belief, for it is not proof or evidence in any legal sense. As a general rule it may be safely affirmed, that in the sense of the law, a general assertion of a fact upon information and belief, proves nothing. It appearing from the papers, that as to two of the causes of "action set forth in plaintiffs’ affidavits, the order of arrest was improperly granted. Held, that the motion to vacate the same should have been granted.
    It appearing also, that the plaintiff does not allege in apt language that a certain sum is due to him from the defendant, Held that plaintiff not having shown by legal evidence that any sum is due or owing to him from defendant, the order of arrest should have been vacated.
    Before Sedgwick, Ch. J., and Truax, J.

      Decided March 5, 1889.
    Appeal from an order denying a motion made by the defendant to vacate an order of arrest.

      Benno Loewy, attorney and of counsel for appellant, argued:—
    I. It is a well' settled rule of law, that where in an action upon several causes of action an order of arrest is applied for, if the plaintiff fails to establish the right to arrest the defendant as to any one cause of action, the order of arrest must be vacated as a whole. Madge v. Puig, 71 N. Y. 608; Smith v. Knapp, 30 Ib. 531; McGovern v. Paine, 32 Barb. 83.
    II. The supposed” causes of action of Seth Wilks for $1,440, and Samuel E. Hunter for $570, are not established in a manner justifying the granting of an order of arrest. The terms of the receipt of the money by defendant are contained in a written instrument which is not annexed or produced, or even quoted from, the absence of which is unaccounted for, and as to the contents of which only the plaintiff’s conclusions—no facts —are given. The other allegations are all upon information and belief, and no valid reasons for the failure to procure the affidavits of the informants are produced. This is wholly insufficient to sustain any provisional remedy.
    HI. Section 557 of the Code of Civil Procedure requires that in every case, before an order of arrest is granted, proof must be furnished to the court “ that a sufficient cause of- action exists against the defendant.”
    The affidavits in this case contain nothing on which the court can ascertain that any cause of action exists against the defendant, and if so, what that cause of action is for, or whether it is founded on contract or is in tort. If the action is for a conversion, the affidavits should have stated that the defendant converted, either the money or the property in which the money deposited was to have been invested, and that thereby the plaintiff had suffered damages and the amount claimed as such damages, hut no such statements are contained in the affidavits upon which the order of arrest herein was granted. There is nothing in plaintiff’s affidavit to

      show what he sues for or what sum he seeks to recover in this action. Blewitt’s affidavit is presented, but riothing is before the court to show that his alleged claim forms one of the causes- of action in this suit. I have already analyzed so much of plaintiff’s affidavit as relates to the assigned claims of Wilks and Hunter. Plaintiff’s own alleged transactions amounted to only $290, of which $25 were “lost,” whatever that may mean, reducing plaintiff’s own claim to $265 out of $2,915.55 claimed in the order of arrest. How little there is warranting the granting of an order of arrest upon his own claim will be shown later.
    IV. The plaintiff evidently applies for an order of arrest under subd. 3 of section 550 of the code of civil procedure on the ground that the defendant misapplied moneys received in a fiduciary capacity, but the allegations of the affidavits entirely fail to show that or any other ground of arrest. The plaintiff alleges “ that the defendant received from deponent, as broker for him, the sum of two hundred and ninety dollars as margin,” etc. The significance of the word “ margin ” and the relation of the parties to a deposit as margin, has been repeatedly passed upon, and fully determined by both the Court of Appeals and this court. Thus it was held by the Court of Appeals in Markham v. Jaudon, 41 N. Y. 235: “ Where the defendants, stockbrokers, at the request of the plaintiff, and for him, but in their own names and with their own funds, purchased certain stocks, he depositing with them a ‘ margin ’ of ten per cent, which was to be ‘ kept good,’ and they 6 carrying ’ the stocks for him—that the legal relation created between the parties by this transaction was necessarily that of pledgor and pledgees, the stock purchased being, the property of the plaintiff and in effect pledged to the defendants as security for the repayment of the advances made by them in the purchase.” To the same effect see Baker v. Drake, 66 N. Y. 518; Capron v. Thompson, 86 Ib. 418.

      Y. The rule that a reasonably clear case must appear to authorize the granting of an order of arrest, applies, and the order should not be granted, where the propriety of granting it depends upon a doubtful and important question of law. Cormier v. Hawkins, 69 N. Y. 188.

      Frederick M. Hvarts, attorney and of counsel for respondent, argued:—
    I. The motion to vacate the order of arrest being made solely upon the affidavits upon which the same was granted, the averments of fact contained therein and the fair inferences to be drawn therefrom must be deemed to be conceded as true. Philips v. Wortendylce, 31 Hun, 192.
    II. The facts stated constitute a fiduciary relation and authorize arrest though the money was as margin. See Clark v. Pinckney, 50 Barb. 226; Graeffe v. Currie, 52 Super. Ct. 554; Obregon v. De Mier, 52 How. 356 ; Dubois v. Thompson, 1 Daly, 309 ; S. C., 25 How. 417 ; Duguid v. Edwards, 50 Barb. 288. It is not necessary to show specific moneys belonged to respondent and were wrongfully taken from him, the fiduciary relation is sufficient. Moore v. Hillabrand, 37 Hun, 491.
    III. Regarding the assigned claims of Wilks and Hunter though certain statements are upon information and belief, yet, the sources of the information are given, and the reason stated why the informant’s affidavit is not produced. This is sufficient and the allegations must be treated as true. Bassett v. Pitts, 15 Hun, 464, 466 ; Wolfe v. Brouwer, 5 Rob't, 601; Rassleer v. Ashley, 2 Monthly Law Bulletin, 53 ; Evans v. Holmes, 46 How. 515; City Bank v. Lumley, 28 Ib. 397.
    IY. If it be claimed the affidavits inferentially show some transaction at the time the money was received, then the appellant’s admissions equally show any such transaction was closed by him without orders, which likewise leads, to conversion while acting in a fiduciary capacity.
    V. It was not necessary to state quantities and prices in the transactions, because all were closed and ended. With the facts as stated, and the conclusions therefrom, it would be superfluous to add the allegation of the legal conclusion in addition, of conversion and embezzlement in a fiduciary capacity.
    ’ VI. If for any reason any one claim is insufficiently or imperfectly stated, it does not follow the order of arrest must be vacated. The cases cited by appellant only apply where one cause of action giving arrest is joined with one which does not, both causes of action, however, being well pleaded or perfectly stated.
    VII. It is a condition precedent to vacating the order of arrest that appellant had been arrested. Code, § 667; Gedney v. Hass, 50 How. 310 ; Kern v. Rackon, 44 Ib. 443. The record does not show an arrest made.
   By the Court.—Truax, J.

The motion to vacate the order of arrest was made upon the papers upon which the order of arrest was granted. The respondent claims that the order should be affirmed because it nowhere appears that the defendant had him arrested, and cites § 567 of the Code of Civil Procedure in support of his claim. The object of that section is to limit the time in which a person arrested shall make his motion to vacate the order of arrest, or to reduce the amount of bail, or to increase the security given by the plaintiff. Section 568 provides that an application to vacate an order of arrest may be founded only upon the papers upon which it is granted. Now, when such an application is founded only upon the papers upon which the order of arrest was granted, it will not appear whether the defendant has, or has not been arrested; and to hold that the defendant cannot move to vacate an order of arrest until after he has been arrested would, in. effect, nullify this provision of the Code. We are of the opinion that the power of the court to vacate an order of arrest, before the service thereof, is one of the inherent powers of the court, to be exercised within the limitations prescribed by sections 567 and 568 of the Code of Civil Procedure.

The order of arrest was granted on affidavits without a complaint. The affidavits show four causes of action, three of which plaintiff holds by assignment. As to two of the causes of action the averments are all on information and belief.

We are of the opinion that the affidavits, as far as these two causes of action are concerned, did not warrant granting the order of arrest. No reason is given why the persons who gave plaintiff the information on which his affidavit was based, have not made affidavits of the facts within their knowledge. Plaintiff could not prove his case at the trial by showing that he had received certain information that he believed, and there is no reason why he should be allowed an order of arrest on such information. No man should be arrested civilly, on mere information and belief. Mere information and belief is not proof or evidence in any legal sense (Roderigas v. East River Savings Bank, 76 N. Y. 323); or as was said in Mowry v. Sanborn, 65 N. Y. 584, “It may as a general rule, be safely affirmed, that in the sense of the law, a general assertion of a fact in an affidavit upon information and belief, proves nothing.”

When a plaintiff wishes to obtain an order of arrest on information that he has obtained from other persons it is at least his duty to give some reason why he does not present affidavits from the persons who have given him his information. It is true that the plaintiff herein says that he has been unable to obtain the affidavits of the persons from whom he obtained his information, but he does not give a legal excuse for his failure to obtain such affidavits.

It thus appears that as to two of the causes of action set forth in plaintiff’s affidavit, the order of arrest was improperly granted, and for this reason the motion to vacate should have been granted. Madge v. Puig, 71 N. Y. 608; Am. Union Tel. Co. v. Middleton, 80 Ib. 408 ; Knight v. Abell, 15 N. Y. St. Rep. 989.

The four causes of action set up in the moving papers are of the sam% kind, viz.: the plaintiff alleges that he and his assignors gave to the defendant, who was a broker in stock, oil and grain, certain sums of money as margin in the sale of oil; that the defendant was requested “ to close said oil ” ; that the defendant promised so to do, and also promised to settle his accounts and to return said margins, and that he has failed so to do, but has converted the same.

It evidently was the intention of the plaintiff to set forth a right to arrest within subd. 3 of § 550 of the Code of Civil Procedure. But it is to be noticed that nowhere does the plaintiff allege, in apt language, that a certain sum of money is due him from defendant. It may well be that plaintiff and his assignors gave the defendant certain sums of money as margin in the sale of oil, but it does not necessarily follow that any of the margin yet remains with the defendant to be returned to plaintiff.

The agreement between plaintiff and his assignors and the defendant, was that the defendant might use the money he received as his own and that he would pay whatever amount was due on demand (see McBurney v. Martin, 6 Robt. 502; Robbins v. Falconer, 43 Super. Ct. 363); and as the plaintiff has not shown by legal evidence that anything is due him, the order of arrest should have been vacated.

The order is reversed with costs, and the order of arrest is vacated with $10 costs.

Sedgwick, Ch. J., concurred.


text:
    WILLIAM WALLACE, et al., Appellants v. FREDERICK D. BLAKE, et al., Respondents.

      Commission to take testimony.

    The power of the court to issue a commission is derived from and depends upon §§ 887, 888 and 889 of the Code of Civil Procedure. In this ’ ease the name of the commissioner was not inserted in the order for the commission, and the order provided for the examination of “ Such other witnesses as the defendants may submit the names and addresses of to the plaintiffs.” Held, that because of these two defects the order .is irregular.
    The respondent failed to show that the persons whose testimony he desired to take were not within the state, and made no allegation that the testimony of two of the persons he sought to examine were material, etc. Held, that these omissions were fatal. ,
    Before Sedgwick, Ch. J., and Truax, J.

      Decided March 5, 1889.
    Appeal from an order directing that a commission issue to take testimony in the action. The opinion of the court shows the facts in the case.

      Norwood & Goggeshall, for appellants.

      William G. Beecher, for respondents.
   By the Court.—Truax, J.

The power of the court to issue a commission depends entirely upon sections 887, 888 and 889 of the Code of Civil Procedure.

Before the court can issue a commission the applicant must show that the party to be examined is not within the state, and that his testimony is material. Upon such showing the court may issue the commission to one or more competent persons to be named in the commission.

In the case before us the name of the commissioner was not inserted in the order. The order further provided for the examination of “ such other witnesses as the defendants may submit the names and addresses of to plaintiffs.” In both these respects the order is irregular. The failure to insert the name of the commissioner is in conflict with the provision of the section above cited. The provision relating to the examination “ of such other witnesses, etc,” is opposed to the direction of the Code that only a witness whose testimony is material can be examined on commission.

It has often been held that the materiality of testimony must be made clearly to appear; but how can the materiality of such other witnesses as the defendants may submit the names and addresses of,” be made to appear ?.

The attorney for the respondent suggested on the argument that the order could be modified in these two respects,—and we would so modify and affirm it were it not for other irregularities.

Section 887 of the Code provides that the testimony of a person not within the state may be taken by commission when it appears that such testimony is material.

The respondent failed to show that the persons whose testimony he desired to take were not within the state, while it was stated in the appellant’s papers used to oppose the motion, that one of the witnesses had been within the state a short time before the application for a commission was made.

Prior to the adoption of the Code of Civil Procedure a party was entitled to a commission on showing, among other things, that the person whose testimony he desired to take did not reside in the state. Now he is required to show that such person is not within the state. He does not show that fact by showing that the person resides out of the state.

The attorney for the respondent suggested on the argument that this defect could be cured at the trial by showing, as in the case of testimony taken de bene esse, that the person was absent from the state at the time of the trial. B.ut there is no authority for such a course in the case of a commission, while it is specially authorized by section 882 of the Code of Civil Procedure in a case of a deposition de bene esse. Moreover, there is no allegation of the materiality of the testimony of two of the persons to be examined.

Order is reversed with costs.

Sedgwick, Ch. J., concurred.


author: By the Court.—Dugro, J.

text:
    ALFRED COOLEY, et al., Respondents v. WILLIAM A. CUMMINGS, Appellant.

      Certificate of the trial justice that the title to real estate came in question cm the trial.

    It was conclusive upon the taxing officer in entering the judgment so as to include costs. Such a certificate is not such an intermediate order that can be brought up for review by an appeal from a' final judgment. There can be no available exception made to such a certificate, consequently, in the case at bar, there is no ground for the reversal or modification of the judgment based upon the certificate having been improperly granted. The relief in such case is by a motion to set it aside. In the case at bar there was no order formally made or entered, granting the motion for the certificate, and, as the case stands the defendant’s remedy, if aggrieved, is by motion and by appeal.
    Before Sedgwick, Ch. J., and Dugro, J.

      Decided March 5, 1889.
    Appeal from so much of a judgment as awards costs in the action to the plaintiffs, and from a certificate granted by the trial judge, certifying that the title to real estate came in question on the trial.

      J. II Whitelegge, for appellant.

      Chauncey Schaffer and Jacob Fromme, for respondents.
   By the Court.—Dugro, J.

This is an appeal from so much of a judgment as awards costs in the action to the plaintiffs, and from a certificate granted by the trial justice, certifying that the title to real estate came in question on the trial. .

The certificate was conclusive upon the taxing officer, Lillis v. O’Connor, 8 Hun 280, and he therefore committed no error in entering judgment so as to include costs.

I do not believe that the granting of a certificate is such an intermediate order as is when specified in the notice of appeal brought up for review by an appeal from a final judgment, and therefore I think there can be no available exception to the granting of a certificate. To my mind, therefore, no ground for the reversal or modification of the judgment has been presented.

If the certificate was improperly granted, it may be set aside on a motion made for that purpose. Barney v. Keith, 6 Wend. 555.

It seems that no order granting the motion for a certificate was formally made or entered, and so, as the matter stands, the defendant’s remedy, if aggrieved, is by motion and not by appeal.

The appeal must be dismissed with costs.

Sedgwick, Ch. J., concurred.


text:
    JOHN PHELAN, Plaintiff v. THE MAYOR, &c., OF THE CITY OF NEW YORK, Defendant.

      Contract, terms thereof as to time of performance, and certificate as to the time by commissioner of public works.

    When by the terms of a contract the computation of time as to delay, etc., is to be certified by the commissioner of public works, and it does not appear that he had refused to certify, no other method of settling the facts, which the contract provided should be determined by the commissioner, can be resorted to.
    In the case at bar, the court would have ignored the provisions of the contract, if it had allowed the jury to undertake the decision of a question which the parties agreed should be made by the commissioner of public works.
    Before Sedgwick, Ch. J., and Dugro, J.

      Decided March 5, 1889.
    Exceptions at tke trial ordered to be heard in the first instance at the general term, and judgment suspended in tke meantime.

      James A. Deering, attorney, and of counsel for plaintiff.

      Henry R. Beekman, counsel to the corporation, and David J. Dean, of counsel for defendant.
   By the Court.—Dugro, J.

The complaint contains two causes of action, one for $1,125, balance of contract price for grading 112th street. Another for $5,000 damages for delaying plaintiff and his assignor in the performance of the contract for the grading.

The defendant in its answer denies that the delay for which damages are claimed was caused by it, and says that it has a right to retain the $1,125 which plaintiff claims by reason of a clause contained in the contract and which is mentioned in the opinion.

The exceptions taken at the trial were ordered to be heard in the first instance at the general term, and judgment was suspended in the meanwhile.

In the case I find no exception to the granting of defendant’s motion for a verdict and therefore have not considered the question which would have been presented by such an exception; this statement is made because the appellant in his brief seems to rely not a little upon error which he claims occurred by the direction of a verdict for the defendant.

At the close of the case it appears the plaintiff asked that the case be allowed to go to the jury as to whether the delay in the performance of this work on the part of the plaintiff beyond the period specified in the contract (320 days), was not caused by the acts or negligence of the defendant in not removing the obstructions that were in the street and its failure to do so, so as to enable the plaintiff to complete the work within the time specified in the contract. And as to whether, if the street had been unobstructed when he was requested to commence work he could not have completed it.”

This motion was denied, and the plaintiff’s counsel excepted; the denial of this motion was not error, for the contract had been performed in all respects except as to time, and as to time of performance it was by the terms of the contract provided, that in-the computation of the time fixed for performance “ the total time..... during which the work of completing the contract is delayed in consequence of any act or omission of the parties of the first part (all of which shall be determined by said commissioner of public works, who shall certify to the same in writing).....shall be excluded.” It does not appear that the commissioner of public works refused to certify in writing to the time of any delay, and therefore the court would have ignored the provision of the contract above referred to if it had allowed the jury to undertake the decision of a question which the parties agreed should be made by the commissioner. Until there has been an unreasonable refusal on the part of the commissioner, no other method of settling facts, which it was agreed should be determined by him, can be resorted to.

As the case stands it is immaterial whether, if the street had been unobstructed, the plaintiff could have completed his contract in time or not.

The court was notin error when it granted the motion to dismiss the complaint as to the second cause of action ; the motion was made after the plaintiff had rested and up to that time no evidence to sustain the cause of action had been offered by the plaintiff.

The other questions in the case are unimportant.

The exceptions are overruled and judgment is ordered for the defendant upon the verdict, with costs.

Sedgwick, Ch. J., concurred.