author: Yan Brunt, P. J.:

text:
    FREDERICK W. BLOSSOM, Respondent, v. SPENCER P. SHOTTER, Appellant.

      Sales — executm'y contraéis of sale of personal pyroperty — the title does not pass if anything remains to be done by the vendor.

    Where anything remains to he done by a vendor of merchandise to put the same ' in a deliverable shape, so that the purchaser has an option to refuse to accept the goods in case such thing is not done, no title passes.
    The only exception to this rule exists in the case in which goods are sold by weight or measure, resorted to in order to fix the price.
    Appeal by tbe defendant Spencer P. Sbotter from a judgment, entered in tbe office of tbe clerk of tbe county of New York on tbe 30th day of June, 1890, in favor of tbe plaintiff; and also from an order, entered in said office on tbe 25th day of June, 1890, denying defendant’s motion for a new trial and granting to plaintiff an extra allowance, after a trial at tbe New York Circuit before tbe court and a jury, at which a verdict was rendered in favor of tbe plaintiff for $674.19.

      James Byrne, for tbe appellant.

      Hobbs <& Gifford, for tbe respondent.
   Yan Brunt, P. J.:

This action was brought to recover damages for tbe breach of an alleged contract for tbe sale of 1,500 barrels of rosin, tobe delivered free on board tbe plaintiff’s vessel in tbe port of Savannah.

The contract was entered into by telegrams and correspondence;. and tbe question presented is, whether tbe contract of sale was executed or executory.

Tbe first telegram bearing upon tbe question was sent by tbe plaintiffs to tbe defendants at Savannah, and is as follows:

“New York, February 19th.
“ S. P. Shotter & Co., Savannah:
Make lowest possible offer, good two days, 1,500 M., f. o. b. my vessel Savannah.’ Answer immediately.
“F. W. BLOSSOM.”
The defendants answered by telegram as follows:
“ Savannah, Georgia, February 19, 1886.
“ To F. W. Blossom, 140 Water street, New Yorh, N. Y. :
“ Three ten, f. o. b. here, for reply to-morrow afternoon.
“ S. P. SHOTTER & CO.”

On the same day the defendants wrote to the plaintiff, stating as follows:

“Tours of the 17th inst. received, also telegram of even date. To the latter we replied, offering 1,500 ‘M’ rosin at $3.10, f. o. b. your vessel here, if reply by to-morrow evening. We make the tempting offer with a view to closing out all we have.”
On the twentieth of February the plaintiff wrote to the defendants that their offer was not accepted.- On the twenty-third the plaintiff telegraphed the defendants: “ Tour offer 1,500 ‘M’ accepted, telegraph confirmation immediately.”
On the same day the defendants telegraphed to the plaintiff “Ve confirm sale to you of 1,500 M ’ at $3.10 f. o. b. Savannah.”
Hpon the same day the plaintiff wrote to the defendants at Savannah the following letter:
“New Tore, Feb. 23, 1886.
M Messrs. S. P. Shotter & Co., Savannah, Ga. :
“Dear Sirs.— Tour favor of the 19th inst. to hand and noted. This morning the 1,500 fM’ matter came up again and,' after much trouble,-1 succeeded in getting the. bid for a few hours, and wired you accepting the lot, etc., my telegram probably reaching you at same time as my letter of Saturday, 20th of -Feby. Later in the day I received your reply confirming the sale, and the matter now is closed by a sale to me of 1,500 bbls. ‘M! rosin at $3.10, f. o. b. my vessel in Savannah, less 2í¡/0, sight draft against documents as ■shipped. The vessel will report at Savannah within the next thirty to forty days. She may turn up in ten days. I will give you five days’ notice. I have no doubt but that she will go direct to the wharf, so you will have very small expense putting on board. An inspector’s certificate, such as you give on foreign cargoes, will be necessary. Paterson came very near getting the order; he was but a cent or so above me.
“I note your market has declined to $3.00 on CM,’ $2.20 on ‘K.’ Will also need about 200 samples when shipment is made.
“ Tours truly,
“F. W. BLOSSOM.”

On the twenty-fifth of February the defendants wrote to the plaintiffs a letter, of which the following is a portion:

“ Savannah, Feb. 25th, 1886.
“ F. W. Blossom, Esq., New York :
. “Dear Sir. — Tour favor of 23d is at hand and we note what you say as to the time and manner of shipping of the 1,500 bbls. (M ’ sold by us on the 23d inst. at 3.10 per 280 f. o. b. here. As no time was mentioned for shipment, it was of course understood to be immediate and not future, so 'if we have to carry it for the buyer’s vessel we will have to charge the actual expenses, i. e., storage, interest and insurance. Our object in making such a low price at the time was to make a quick turn, and we are much disappointed.”

And said letter also contained objections, upon the part of defendants, to some of the terms made by the plaintiff in his letter oí the twenty-third. Thereupon the plaintiff wrote a letter on the twenty-seventh of February, in which he claimed that the wording of his telegram indicated that the shipment was not to be prompt, and that his margin of two and a half per cent would not admit of his paying any charges. The letter also contains a direction that they should forward to him the weights, invoices, certificates and shipping receipts to New Tork, attached to the draft; all the papers, without exception, to be in his name. The letter also contained a provision that if plaintiff did not hear from defendant by wire on Monday, it would be understood that all the terms stated by him were agreed to.

.. On the second of March the defendant wrote to the plaintiff as follows: “We did not wire yesterday as we concluded to accept your stipulations, although we do not think the ground well taken. F. o. b., your vessel in Savannah,’ does mean prompt shipment, providing no future date is mentioned.”

On the fourth of March the plaintiff wrote to the defendant as follows: “Tour favor of the 2d inst. is to hand and I note that the 1,500 bbls. ‘M’ order is accepted, and will be held awaiting the arrival of the vessel. This rosin must be, every bbl., as originally sampled, M,’ and deliver such lots as the local inspectors will be willing to give their certificates for as having originally graded ‘M.’ If a small fee to' them is necessary to obtain this paper I will pay it.”

And on the sixth of March the defendants wrote to the plaintiff, “We will furnish an inspection certificate for the 1,500 barrels M ’' rosin.” On the fifth of April the plaintiff telegraphed to the defendants, “ Where shall vessel call to receive 1,500 ? wire reply immediately.” On the next day the defendants telegraphed, “Contract expired by limitation.” No vessel arrived at Savannah before the tenth of April, and the forty days from the twenty-third of February, the date of the plaintiff’s letter expired on the fourth of April.

Upon this state of facts, rosin having risen, a verdict was directed in favor of the plaintiff, and from the judgment thereupon entered, and from an order denying a motion for a new trial this appeal is taken.

There are two grounds upon which it is insisted by the appellant that there was no executed contract of sale. The first is that there-was no specification or identification of any particular 1,500 barrels of “ M ” rosin; and the second that it was not the intention of the-parties that the title should pass.

It does not seem to us at all necessary to consider separately the first ground, because this appeal may be disposed of upon the second, which includes the first. And it seems to us that this is conclusively established, because there can be no question but that if the defendants tendered to the plaintiff 1,500 bbls. “ M ” rosin which they had bought, the day after the contract had been made it would have been a good tender. If .this is true, then it could not have been the intention of the parties that there should be a present passing of the title at the-time the contract was entered into. It is said that this conclusion is at variance with the language used by the defendants in their •letter of February nineteenth, in which they say, “We make the-tempting offer with the view of closing out all we have.” But this was no statement that they had 1,500 barrels of rosin on hand such as would fulfill the terms of the contract. They did not offer 1,500 barrels to the plaintiff, but the plaintiff telegraphed to know what was the lowest possible offer of sale they would make for a given quantity of rosin, viz., 1,500 barrels. It was the plaintiff that fixed the number of barrels that he, desired to buy, and not the defendants the number of barrels they desired to sell.

• If they had had but 1,000 barrels on hand the letter would have been entirely true, because they might very well, in order to fill the order, have intended to go into the market to procure the remainder. And their letter of the twenty-fifth is entirely consistent with the idea that they were not selling what they had on hand, but were going into the market to purchase, because they say, in protest against being required to hold the rosin for thirty or forty days awaiting the arrival of the vessel, “ Our object in making such a low price at the time was to make a quick turn and we are disappointed.” This language clearly implies the fact that they expected to go into the market to purchase some portion of this rosin, if not the whole, and the evidence shows that they had not on hand any 1,500 barrels of rosin.

But the intention of the parties is further shown by their correspondence in respect to the expenses attending the holding of this merchandise. In the letter of the twenty-fifth the defendants say : “ If we have to carry it for the buyer’s vessel we will have to charge the actual expenses, i. e., storage, interest and insurance.” In reply to this the plaintiff says, among other things : “ My margin of two and one-half per cent will not admit of my paying any charges.” N ow, if this property was to be the plaintiff’s at the time of the entering into this contract of sale, why should the defendants pay insurance, interest and storage %

If this rosin had been destroyed prior to the expiration of the forty days and the expiration of the contract, and the defendants had attempted to hold the plaintiff for the purchase-price of the rosin, it is clear that they could not have recovered under such a contract as this. It is a familiar principle that if anything remains to be done by a seller of merchandise to put the same in a deliverable shape, so that the purchaser has ah option of refusal to accept, in case such things are not done, no title passes. And the only exception to this rule is that where goods are sold by weight or measure, the exact quantity may be ascertained in order to fix the price to be paid.

In the case at bar certificates were provided for, and the plaintiff might refuse to accept the rosin, if unaccompanied with these certificates; and he himself stated that if the rosin was not so accompanied when tendered for delivery he would not have accepted the same. Now, if it was his property, and he had bought it and the title was his, why would he not take it ? He would not take it because the title was never in him, and because, by the terms of the contract, he had never accepted the property as a compliance with the contract, and need not do so unless accompanied by these certificates.

It is urged that even if the contract should be considered as executory the defendant was not relieved from the obligation to deliver upon the ground that before the defendants could forfeit the rights of the plaintiff thereunder the obligation rested upon them to give notice to plaintiff requiring performance within some reasonable time, and that no such notice was ever given. And it is urged that the statement in the plaintiff’s letter of February twenty-third, that the vessel would report at Savannah within the-next thirty or forty days, and might in ten days, was not a condition precedent, but was made not prior but subsequent to the contract,, and was a general statement for the information of the defendants. That this is not the case is clearly established by the evidence; the defendants claiming that the telegram meant prompt delivery, and that they were striving to obtain a contract for prompt delivery, and finally they receded from their proposition and accepted the condition that the vessel would report at Savannah within the next, thirty or forty days, they to be at the expense of storage, etc, until the vessel had reported. It was clearly the intention of the parties,, in view of these explanations, that this vessel should be there within the period named, and that was one of the conditions of the contract. And the defendants owed no obligation to the plaintiff except to-wait for the expiration of the time, and after the time expired in which the plaintiff agreed to have his vessel there, they were-absolved from completion of the contract.

The claim that by the letter of the fourth of March, in which the. plaintiff stated “ I note that the 1,500 bbls. ‘ M ’ order is accepted and will be held awaiting the arrival of the vessel,” in no way militates against this theory. He did not refer to the indefinite arrival of the vessel, but to its arrival within the forty days, which was the-utmost limit for which the plaintiff had. asked the defendants to hold the rosin for the purpose of delivery.

It is urged that, even if it should be held that time was of the essence of the contract, the forty days should be computed from the time the stipulations were all agreed to, and, as the defendants wrote on the second of March,we concluded to accept your stipulations,” that the time was to -run from the second of March. This is not the contract. The plaintiff did not state that the vessel would report at Savannah within thirty or forty days from the second of March, but stated that it would report within thirty or -forty days from the twenty-third of February, because, in his letter of that date, ho says “ the vessel will report at Savannah within the next thirty to forty days.” TIow it is possible to import the second of March into such a condition it is difficult to imagine. It is probably true that the contract was not finally terminated until the second of March ; but part and parcel of the stipulations was the agreement upon the part of the plaintiff to have his vessel there within forty days from the twenty-third of February.

We think, therefore, that, upon the undisputed evidence, the com tract was an executory contract, and that the time for its completion on the part of the plaintiff having arrived, and he not having performed his part of the contract, tlié defendants were absolved from performing theirs, and no right of recovery existed in the plaintiff' by reason of the non-delivery of this rosin.

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

Brady and Daniels, JJ., concurred.

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


source: Caselaw Access Project

license: Public Domain

text:
    HUGH N. CAMP, Plaintiff, v. CHARLES CRONKRIGHT and Others, Defendants.

      Will — devise over — when subject to be defeated by the death of the remainderman before that of the life tenemt.

    The will of a testator provided: “ Fifteenthly. I give and devise unto my beloved wife, Isabella S. Connolly, all the lands and grounds now occupied by me at Fort Washington. To have and to hold the same, with the tenements, hereditaments and appurtenances, to her during the term of her natural life, and upon her death then I give and devise the same unto my children, shai’e and share alike, absolutely and forever, the child or children of any deceased child of mine to take the share which his, her or their parent would have taken if living.”

      Held, that it was the testator’s intention to devise to each of the children (five in number) an undivided fifth interest in fee in the premises, subject to be divested by the death of the child in the lifetime of the mother; and that until her death it could not be determined in whom the fee would finally vest.
    A Controversy submitted without action upon an agreed statement of facts.

      & P. Nash and G. P. Demcvrest, for the plaintiff.

      Charles jL. Flairwner, Willimn Stone and P. F. Olwell, for the defendants.
   Yan Brunt, P. J.:

Charles M. Connolly died seized of certain premises, leaving him surviving Isabella S. Connolly, his widow, and the following children, ids only heirs-at-law: James A. Connolly, Washington A. Connolly, Thomas B. Connolly, Charles M. Connolly, Jr., and Jane. Y. Ohalfin, all of full age. He left a will, bearing date the 28th of June, 1865, which was probated before the surrogate of the county of New York on the 2d of June, 1869, by which he devised the premises in question as follows:

“ FifíeenthVy. I give and devise unto my beloved wife, Isabella S. Connolly, all the lands and grounds now occupied by me at Fort Washington. To have and to hold the same, with the tenements, hereditaments and appurtenances, to her during the term of her natural life, and upon her death then I give and devise the same unto my children, share and share alike, absolutely and forever, the ■child or children of any deceased child of mine to take the share which his, her or their parent would have taken if living.”

By deed, dated. December 18, 1873, and duly recorded January 5, 1874, Washington A. Connolly, one of the children and heirs-at-law of Charles M. Connolly, deceased, and Louise 1. Connolly, his wife, purported to convey to Thomas C. E. Ecclesine an undivided one-fifth interest in the premises in question in fee. Through various mesne ■conveyances the estate conveyed by said , deed afterwards became vested in the defendant Charles Cronkright. Washington A. Connolly died in August, 1875, leaving him surviving his widow, Louise I. Connolly, and three children, Marie Louise Connolly, Washington A. Connolly and Bianca Connolly.

In December, 1880, Isabella S. Connolly, the widow of said •Charles M. Connolly, the testator, died. In December, 1885, the defendant Cronkright, claiming to be seized in fee of said one-fifth -.interest in said premises, commenced an action in the Supreme Court against Thomas B. Connolly for the partition of the premises in question. The children of Washington A. Connolly, deceased, were not made parties.

Such proceedings were had in said action that judgment was pronounced in. favor of the plaintiff for partition and directing the premises to be sold by a referee. The referee sold the premises to •the defendant Cronkright and Philip dwell, and conveyed the same to them by deed dated the 25th of January, 1888. Philip dwell died in March, 1889, leaving a will by which he apppointed Philip L. ■dwell executor thereof, with a valid power of sale over his real ■ estate, including the premises in question.

The questions submitted to the court upon this case are as follows:

1. Did the will of Charles M. Connolly vest in his son Washington ■A. Connolly an undivided fifth interest in fee in the premises in question, subject to be divested by the death of said Washington A. •Connolly in the lifetime of his mother, Isabella S. Connolly ?

2. Did the deed by Washington A. Connolly and wife to Thomas ■C. E. Ecclesine, dated December 18,1875, vest any title in the grantee •other than an estate in remainder (subject to the life estate of Isabella S. Connolly) and subject to be divested by the death of said Washington A. Connolly before his mother, Isabella S. Connolly?

3. Upon the death of said Washington A. Connolly before his. mother, did the title to an undivided one-fifth interest in the premises in question become vested in Marie Louise Connolly, Washington A. Connolly and Bianca Connolly, only children and heirs-at-law of Washington A. Connolly, deceased, as devisees under the will of' Charles M. Connolly, deceased, subject to the life estate of Isabella S. Connolly, widow of said Charles M. Connqlly ?

The question presented is not free from difficulty, but we think it was the plain intention of the testator to devise to his son, Washington A. Connolly, an undivided fifth interest in fee in the premises in question, subject to be divested by his death in the lifetime of his mother, the life tenant.

Ajlarge number of authorities have been cited upon both sides of' this question, which do not seem to be entirely harmonious. But as in the construction of every testamentary instrument the will of the testator must be adoprted, it necessarily follows, that it is seldom that any adjudication can be found which is exactly parallel in its-facts to the case being considered. So we find in many of the cases cited by the defendant that there are no limitations over in. case of death, as is the case in Byrnes v Stilwell (103 N. Y., 158), where it was held that under a devise to A for' life and from and immediately after the death of A, a devise unto the lawful child, or children of A, his or her heirs forever, each child named took an absolute fee, subject to be diminished by the birth of other children, as tenants in common. And in the case of Vanderzee v. Slingerland (103 N. Y., 47) it was held that where there is a devise or bequest to one person, and in case of his death to another, the-words referred to a death in the lifetime of the testator.

But in the case at bar there is a devise over in case of death; and. that this devise over depends upon a death occurring during the lifetime of the life tenant is apparent from the language of the will.

The life tenant is to hold the premises during the term of her natural life, and upon her death then the testator devises the same unto his children, share and share alike, absolutely, the child or children of any deceased child to take the share which his, her or their parent would have taken. Now, it is apparent that the testator referred to the period of the death of the life tenant in providing that, in case of the decease of one of his' children, the child or children of snob-deceased child should take the share which his, her or their parent would have taken if living. 'And the rule that, in ordinary cases where death is referred to, it means death during the-life of the testator cannot apply, because it seems to have been the-intention of the testator to have this limitation extend down to the-period of the death of the life tenant. His words are: “ Upon her deathfiasra I give and devise the same unto my children, share and share-alike, absolutely and forever, the child or children of any deceased child of mine to take the share which his, her or their parent would have taken if living.” It is the same as though the testator had said And upon her death I give and devise the same to my children then living, share and share alike absolutely and forever, and to the-child or children of any child of mine who may then be dead, such child or children to take the share his, her or their parent would have taken if living.

This was the intention of the testator, and he has expressed it in language reasonably clear, and which should not be perverted from - its plain meaning in order to give effect to the rule in reference to the vesting of estates.

Under these circumstances it could not be determined, until the death of the life tenant, as to who should finally become vested with the fee of the premises in question.

It follows from what has been said that the first question should be answered in the affirmative, the second in the negative and the-third in the affirmative; and that the plaintiff is entitled to judgment.

Brady and Daniels, JJ., concuired.

Judgment for plaintiff.


text:
    ARTHUR TERRY, Appellant, v. GEORGE E. HORNE, as Trustee for HATTIE E. TERRY, and HATTIE E. TERRY, Respondents.

      Tleadings — a complaint dismissed for failwe of proof is not dismissed upon the merits — equity will not interfere where plaintiff, if sued, has an answer at lorn.

    Where the complaint is dismissed upon the sole ground oí a failure of proof, it is error to dismiss it upon the merits.
    The case is similar to a nonsuit under the old practice where, under such circumstances, the judgment was never considered a bar to a new action fortified by additional proof.
    Equity cannot be called upon to afford relief to a plaintiff, against a contract executed by him, where he has a complete answer at law in case an action is brought against him upon such contract.
    Differences having arisen between a husband and his wife, the former made an agreement, through a trustee, to pay the wife a'certain sum per week, and subsequently brought an action to have the agreement declared void on the ground that it was illegal and had been procured through duress.

      Held, that these were good defenses to an action at law upon the agreement by the wife, and that there was no ground for an action in equity.
    Appeal by the plaintiff Arthur Terry from a judgment, entered , in the clerk’s office of the county of New York on the 16th day of May, 1890, in favor of the defendants dismissing the complaint upon the merits.
    A! Teri'y, for the appellant.

      T. G. Gamjpbell, for the respondents.
   Yan Brunt, P. J.:

The plaintiff and the defendant, Harriet E. Terry, were married .several-years prior to 1876, and lived together as husband and wife until said year, when the said Harriet E. Terry, commenced an -action against the plaintiff for divorce, upon the ground of cruel and inhuman treatment and for alimony for her support. The plaintiff also commenced an action in the same court against said Harriet E. Terry for divorce upon the ground of adultery. For some time prior to the commencement of these actions said plaintiff and ■defendant had separated, and continued to live apart until the 14th of April, 1877. After the commencement of said actions the defendant, Harriet E. Terry, commenced proceedings in both to obtain alimony for her support during the pendency of the action and for counsel fees to enable her to prosecute and defend the same-which were granted, and the plaintiff, not complying with the order, was adjudged guilty of contempt and gave a bond for his appearance at a future day to purge himself of his contempt. While these proceedings were pending the plaintiff admitted to the defendant-that he had been deceived as to the statement charging her with adultery, and proposed that she should discontinue her action and he would discontinue his, and that they should assume their marital 'relations. The defendant Terry ■ declined to do so unless the plaintiff would make some provision for her by securing some money through a trustee for her use. It was agreed that the plaintiff should do so, and the agreement set forth in the complaint was drawn up and executed, whereby there was secured for the benefit of said Harriet E. Terry the sum of seven dollars per week. One T. O. Campbell was mentioned as trustee in the agreement, and he having declined to act, the defendant Horne was duly appointed in his place. The plaintiff continued to make the weekly payments so secured by said trust deed up to the time of the commencement, of this action, which was brought to set aside said trust deed upon the ground of duress and the illegality of the contract.

• Upon the trial, at the end of the plaintiff’s case, a motion being made to dismiss the complaint upon the ground that facts sufficient to constitute a cause of action had not been set out in the complaint or proved, the motion was granted and the court dismissed the-complaint upon the merits, and from the judgment thereupon entered this appeal is taken. So far as the court dismissed the complaint upon the merits, we think the judgment was erroneous. The complaint was dismissed because of the failure of proof upon ' the part of the plaintiff, and not because there was any issue of fact-which had arisen between the plaintiff and the defendant, which had been determined in favor of the defendant. The court should not, where a complaint is dismissed because of failure of proof, give absolute judgment in favor of the defendant. The result in such a case is similar to that which obtained in a nonsuit under the old practice ; and, under such circumstances, the judgment was never considered a bar to a new action in case the plaintiff could fortify his ease by additional proof.

It is not necessary to discuss the other propositions which have been presented for consideration, namely, whether after-twelve years of acquiescence in a contract a party can plead duress, or whether a contract of the description mentioned in the complaint entered into for the benefit of a wife is illegal and against public policy, for the reason that these considerations afford no ground whatever for equitable interference. If the contract is illegal, it is a perfect defense in an action at law. If it had been obtained by duress, such would be a perfect defense to an action at law brought to enforce the contract.

It is well settled that equity cannot be called xxpon to afford relief to a plaintiff where he has a complete answer at law in case an action is brought against him upon the contract. (Grand Chute v. Winegar, 15 Wall., 373; Allerton v. Belden, 49 N. Y., 373 ; Town of Venice v. Woodruff, 62 id., 462; Fowler v. Palmer, 62 id., 533; Globe Mutual Life Ins. Co. v. Reals, 79 id., 202; Troy and Boston R. R. Co. v. Boston, Hoosac Tunnel and W. R. Co., 86 id., 107.) In all these cases the pi’inciple is recognized that equitable intex1ference cannot be sought where the rights of the parties can be equally protected in an action at law. If the plaintiff was sued upon the contract in question, if any of the causes of action set up in his complaint in this action wei’e well founded, they would form a complete defense to the action upon the contract.

The judgment should be modified by striking therefrom the words “ on the merits,” and as modified affirmed, without costs.

Barrett and Bartlett, JJ., concurred.

Judgment modified as directed by opinion, and as modified affii’med, without costs.


author: Wan Brunt, P. J.:

text:
    UNITED STATES NATIONAL BANK, Respondent, v. THE NATIONAL PARK BANK OF NEW YORK, Appellant.

      Bills and notes —when a collecting agent who has received money upon a raised draft must return it — a drawee is hound only to know the signature of the drawer— immaterial alteration of a signature.

    'Where a draft had heen raised, but that fact was not known to any of the parties '_ to it, an agent collecting it for his principal igiust, in order to absolve himself from the duty of repaying the excess, above the correct amount, to the person from whom he received payment thereof, have actually paid over the amount received by him to his principal.
    'The drawee is only bound to have knowledge of the signature of the drawer of ■ a draft, and is not precluded from recovering the amount paid upon it, where its body has been changed by increasing'the amount named therein.
    An alteration of a signature, which consists only in its having been touched by a brush or quill-pen in one or two places, is not a material alteration which makes the signature a forgery. . '
    Appeal by the defendant, the National Park Bank, from a judgment, entered in the clerk’s office of the county of New York on "the 23d day of March, 1889, in favor of plaintiff.

      MaoKenzie Semple, for the appellant.
    ■ J. Q. Jmieway, for the respondent.
   Wan Brunt, P. J.:

This action was brought to recover the sum of $5,000 paid by mistake by the plaintiff to the defendant.

It appears from the uucontradicted evidence that on the Tth of April, 1884, a man calling himself John Blake called at the First National Bank of Albuquerque, N. M., and purchased a draft drawn on the plaintiff for $2,000, numbered 8605, ILe requested a letter to F- MacManus & Sons, of Chihuahua, to identify him should he ■have necessity to cash his draft at -that place, whither he was going. Mr. Geary, the' cashier of the Albuquerque Bank, thereupon wrote a letter and gave the same to Mr. Blake, in which he stated that it was written for the purpose of identifying Mr. Blake, whose signature was appended below, and who carried the draft hereinbefore mentioned. This draft was presented by Blake to MacManus & ' Sons and cashed in the latter part of April. On the seventeenth of April a man, styling himself James R. Wood, called at the-. Albuquerque Bank and purchased a draft to his own order for twelve dollars and fifty cents, which was numbered 8631 and signed by the cashier of the bank, D. Geary, and drawn upon the United States National Bank of New York. Some two weeks later Blake called again at MacManus & Sons and offered the draft in suit with a request that it be cashed, which was done and he left. The draft in suit was apparently a draft numbered 8631, dated April 19,1884, upon the United States National Bank to the order of John Blake for $5,000, signed “ D Geary, Cashier ” This draft, when cashed by the plaintiff, bore the following indorsement: “John Blake — Pay to the National Park Bank or order for account of P. MacManus & Sons. P. MacManus & Sons.” The Albuquerque Bank, upon being advised of the presentation of this draft, notified the plaintiff that it had not written the draft for $5,000, as presented, paid and returned, but had made such draft to the order of Wood for twelve dollars and fifty cents, the number of the draft remaining unchanged. The plaintiff, immediately, upon notice of the raising of the amount, demanded of the defendant a return of' the sum of $5,000, less twelve dollars and fifty cents, the amount for which the draft had originally been drawn, which was refused, and this action to recover the same commenced.

There were two defenses presented; the first was, that the defendant bank was merely an agent for collection, and had remitted the proceeds of the collection to its principal. The second was, that the whole draft was a forgery.

The referee found that the draft for twelve dollars and fifty cents was fraudulently altered, the name of the payee being changed from Wood to Blake, and the sum for which it was drawn being changed from twelve dollars and fifty cents to $5,000, and the date being changed from April 11 to April 19, 1884, and that the draft or paper writing when presented by the defendant to the plaintiff for payment did not bear the signature of D. Geary, cashier, in the precise condition in which it had been by him originally affixed to said order, and that the writing purporting to be the signature, of D. Geary, cashier, which was upon the alleged draft or bill of exchange when presented by the defendant to the plaintiff for payment, bore evidence of having been touched up with a brush or quill-pen in one or two places. The referee refused to find that the défendant had accounted for and paid over the proceeds of the draft to F. MacManus & Sons without notice of any claim by or on the part of the plaintiff, and reported in favor of the plaintiff, and from, the judgment thereupon entered this appeal is taken.

There are two questions which seem to be presented upon this -appeal.

The first is whether the defendant, if an agent for collection only, has paid over the proceeds of the collection to F. MacManus & Sons, and the second is, was the signature of the draft in question a forgery ? Upon an examination of the evidence in the case we fail to find any which supports the allegation of the answer that the defendant paid over to F. MacManus & Sons the proceeds of these drafts.

The only evidence to support this contention seems to be the testimony of the assistant cashier of defendant and one Scott, a member of the firm of MacManus & Sons. All that the cashier swore to was that, prior to the time of notice and demand upon them, they had accounted to MacManus & Sons for the $5,000 which they had received from the plaintiff. The testimony of Scott is that he forwarded this draft in due course of business to the defendant for collection and to be credited in its account with them. There is no evidence whatever that the defendant had, at the time it' received notice of the raising of this draft, parted with one single cent of the money collected on account thereof.

The evidence of the cashier would have been entirely true had it simply passed it to the credit of MacManus & Sons and kept the money in its own bank during the whole period which elapsed between the payment and the discovery of the fraud. If this money had been transferred actually to MacManus & Sons, it is clear that both the cashier and Mr. Scott would have so testified. There was no transfer of funds. All that was done, as appears from the evidence, was to credit MacManus & Sons with the amount; and there is no evidence whatever that MacManus & Sons ever drew against that particular credit prior to the time of the discovery of the fraud. In order to absolve an agent who is simply an agent for collection he must actually part with the money; he must pay over the proceeds to his principal. It is not sufficient to credit the same in account. This is strikingly illustrated in the first case which is to be found in the books, which settles the law in regard to the rights of parties to actions similar to the one at bar — Bank of Commerce v. Union Bank (3 N. Y., 236). In that case the money was credited in the account of the correspondent of the Union Bank, and yet a recovery was had clearly upon the principle that crediting in account is not equivalent to paying over the proceeds. The same principle was enunciated in the case of The National Park Bank v. Seaboard Bank (114 N. Y., 28).

There was, therefore, no evidence calling upon the referee to find, as matter of fact, that the defendant had accounted to its correspondents for the moneys collected upon this draft prior to its being informed of the fraud which had been perpetrated. And the plaintiff’s right to recover is fixed, unless the signature to the draft was a forgery, the rule, as laid down in Crawford v. West Side Bank (100 N. Y., 54), being that the drawees of a check or bill are held to a knowledge only of the signature of their correspondents, the drawees, and not for a want of knowledge of the genuineness of the body of the instrument, as between themselves and such other parties as have equal means of determining the existence of an alteration. Such parties take the paper relying solely uj>on the reputed responsibility of tlieir transferrers, and the other parties to it, and its apparent genuineness, and they, therefore, deal with it at their peril. They have no duty to perform in respect to it, except that of guarding their own interest, and in paying and transferring it to •others they take the risk of loss occurring from fraudulent alterations.

It is conceded that the paper of which this fraudulent draft consisted is the identical paper upon which the draft for twelve dollars .and fifty cents was drawn. It is conceded that a genuine signature •of D. Geary, cashier, appeared upon that draft in the place where .the signature of D. Geary, cashier, now appears. It is conceded that all the other written portions of the draft were altered as above stated; and the single question which remains is as to the genuineness of the signature, D. Geary, cashier, as it now appears upon the, .altered draft.

The referee finds that the altered draft did not bear the signature, D. Geary, cashier, in the precise condition in which it had .been by him originally affixed to the paper, and that it bore evidence, at the time it was presented by the defendant to the plaintiff for payment, of having been touched with a brush or quill-pen in one or two places.

It is claimed upon the part of the defendant that the evidence shows that the signature, D. Geary, cashier, is, in its entirety, a forgery, and that, even though the finding of the referee is correct, it is, nevertheless, a forged signature within the meaning of that term and the plaintiff cannot recover. This position of the defendant we do not think can be maintained. It seems to be a necessary ingredient of forgery that some alteration or fabrication of an instrument, or some part of it, is made by which its meaning or language is changed, or whereby a new operation is given to it; and if what has been written upon or erased from an instrument has no tendency to produce this result, or to mislead any person, it is not a forgery or alteration. (1 Greenl. Ev., § 566 ; 2 Russell on Crimes m. p. 319.) Therefore, unless the signature, “D. Geary, Cashier,” was destroyed in its entirety, the mere touching up of the signature, .as found by the referee, would not be such an alteration as to destroy the validity of the instrument. And this seems to have been the theory upon which the defense proceeded upon the trial, because they sought to establish by their expert testimony that all the ink upon the alleged draft was taken from the paper, and that it was' '{except so much of it as was printed) entirely reconstructed.

. An examination of the evidence fails to convince us that the referee erred in refusing to find in accordance with this claim. The evidence upon the part of the defendant was that of experts who were unfamiliar with the signature of the cashier, and who only 'testified, the one from some scientific tests, and the others from a ■comparison of the signature in question with those acknowledged to be genuine, and from the appearance of the signature of the draft in question. The evidence of the experts who testified from ■a comparison of signatures seems to us to establish the strength of the plaintiff’s case. It is admitted by them that certain characteristics are always present in signatures whereby you may detect a forgery, ■and that these characteristics run through all the signatures of the .same party whether the signatures be exactly alike or not.

The evidence upon the part of the plaintiff was that of the cashier himself, and of • various persons who had seen him write and were familiar with his signature, and they all swore that in their opinion that signature was the veritable signature of the cashier. Plow much better were they able to judge whether the characteristics by which the genuineness of the signatures is to be recognized were present than those tw<o witnesses who had never, so far as the evidence shows, seen the cashier write, and had only seen two or three of his genuine signatures ?

The testimony of the cashier is attached, because of a letter which he wrote in reference to this signature, in which he did not express himself in as positive terms as he did when testifying as a witness. This fact in no manner discredited the evidence. On the contrary, it added to its weight, in that examination and consideration seem to have confirmed first impressions.

The testimony of the witness Carvalho that this signature was forged in its entirety is discredited by the testimony of every witness who was familiar with the signature of the cashier. It is incredible, had this signature been manufactured in the way claimed by this witness, that all these persons should pronounce it a genuine signature.

In this condition of the evidence there is no such preponderance of proof in favor of the theory advanced by the defendant as calls upon the court for a reversal of the findings of the referee. Upon the contrary, the conviction produced by a reading of the evidence is, that the signature attached to the draft in question is the genuine signature of D. Greary, cashier, touched up, perhaps, in some unimportant particulars; and as we have seen the rule in reference to forged instruments is that immaterial alterations do not constitute forgery, so the mere touching up of a letter or two in the signature in question in no manner destroyed the signature so that it might not still be called genuine. The integrity of the signature must be effected, and the simple crossing of a t, or the dotting of an i, or the putting in of a period between initials, or the touching of a letter, has no consequences.

We are of the opinion, therefore, that the judgment appealed" from should be affirmed, with costs.

Barrett and Bartlett, JJ., concurred.

Judgment affirmed, with costs.


author: Babkbtt, J.:

text:
    THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Plaintiffs, v. PATRICK REILLY and Others, Defendants.

      Corporations —- contract by the commissioner of public worlcs in New York city — notice thereunder — when highly penal, 'the contract will be sMctly construed,.

    Tlie commissioner of public works of tbe city of New York awarded a sewer contract to one Reilly, dated tbe 21st day of November, 1883, and on December fourth an inspector was appointed and went on tbe work. Tbe contract was highly penal, giving tbe commissioner powér for unnecessary delay to stop tbe work, complete it by others, and charge tbe contractor with any •excess of cost. It further provided that tbe contractor should commence tbe work “ on such day, and at such place or places, as tbe said commissioner may designate, and progress therewith, so as to complete tbe same in accordance with this agreement, on or before the expiration of twenty-three days thereafter.”
    The commissioner never made this designation and the contractor proceeded voluntarily.
    In an action upon a bond, given by the contractor and certain sureties for the - faithful performance of the contract:

      II. Id, that as the contractor had never been set in motion by an official designation of the time when the work should commence, he was not in default “ for unne- ' cessary delay,” and the commissioner had no right to abrogate the contract.
    A part of the work was mason work, as to which the contract provided that “ mason-work of all kinds shall cease on the first day of December in each year, unless the commissioner of public works shall otherwise direct by written notice. ”

      Held, that there could be, after December first, no question of “ unnecessary delay ” as to the mason-work wheie there was neither a designation of a time at which to commence work, nor any notice in writing authorizing the mason work to ■ continue after that date.
    The contract provided that in case the work was taken from the contractor and relet, and its cost proved to be in excess of the original bid, then the contractor • must pay “on notice from the commissioner (the amount) of the excess so due.”

      Held, that the fact that no such notice was given was a defense to an action brought to recover such excess.
    Exceptions ordered to be beard in tbe first instance at tbe General Term, after a trial at tbe New York Circuit on tbe 21st day of April, 1890, at which a verdict in favor of tbe plaintiffs for $2,000 was directed by tbe court, which further ordered that judgment on the verdict be suspended, pending the decision at General Term.
    Tbe action was brought to enforce tbe provisions of a contract for tbe construction of a sewer in tbe city of New York, dated November 21,1883. Under this contract an inspector of the work was appointed December 4,1883, and on that day went on the work.

      John J. Townsend and W. IT. Ciarle, corporation counsel, for the plaintiffs.

      L. Lafivn Kellogg, for defendant Kelly.

      Arthur II. Smith, for defendant Reilly.

      Joseph Fettretch, for defendant Williams.
   Babkbtt, J.:

This action is upon a bond to the plaintiffs, given by all the defendants, to secure the faithful performance by Reilly of a sewer contract awarded to him by the Commissioner of Public Works and executed contemporaneously with such bond. It will not be necessary to consider all the exceptions, as there are one or two which we think fatal to a recovery. It was provided in the contract that. Reilly should commence the specified work “ on such day and at. such place or places as the said Commissioner (of public works) may designate, and progress therewith so as to complete the same, in accordance with this agreement, on or before the expiration of twenty-three days thereafter.” The Commissioner never made the designation authorized by this clause, but Reilly commenced work without it. This was all very well so long as matters proceeded satisfactorily, but when the Commissioner became dissatisfied with Reilly’s progress and sought to abrogate the contract because of what, he deemed “ unnecessary delay,” he was bound to set the twenty-three days running. He could not charge the contractor with unnecessary or any delay until he had, at least, fixed the time and place for the commencement of the work. That Reilly voluntarily proceeded is immaterial. It was not the delay incident to voluntary action which was contemplated, but delay when there was cm obligation to proceed. If, for instance, the time of commencing work had been specified in the contract, the contractor, might have forestalled that time, but he would not have been bound to do so ; nor could he have been charged with neglect because he failed to utilize all the intervening time. His contract obligation to commence work at the specified date would govern, and he could not well be derelict until then. The same principle applies where the time of commencing is to be fixed by a particular official. The duty to proceed arises only when the official has acted. Then, too, it must not be overlooked that the contract is highly penal and confers almost arbitrary power upon the Commissioner. It provides that “if at any time the said Commissioner shall he of opinion, and, shall so certify in writing, that the said work, or any part thereof, is unnecessarily delayed * * * he shall have the power to notify the aforesaid contractor to discontinue all work, or a/nypa/rt thereof, under this contract.” Upon this notice being given the contractor “ shall discontinue said work, or such part thereof,” and the Commissioner is then authorized to complete it, by contract or otherwise; and in case the expense shall exceed the sum which would have been payable under the contract to charge the excess to the contractor, who agrees to pay it on notice from the Commissioner of the excess so due.

It is but reasonable that before the Commissioner acts under these extreme provisions the strict letter of the contract with regard to the time of commencing the work should be observed. The contractor’s rights cannot be taken away by the mere opinion of the Commissioner until there is, at least, a precise legal basis for its exercise. There is another consideration which strengthens this construction. The contract provides that “mason work of all kinds shall cease on the first day of December in each year, unless the Commissioner of Public Works shall otherwise direct by written notice, and then shall be continued only for such time as may be designated in such notice, and no work shall be resumed before the time appointed by said. Commissioner.” How can any contractor whose contract calls for mason work be charged with delay, occurring after the first of December, so long as he has received no such written direction to proceed ? A designation under the contract of the time to commence work (involving mason work), given after the first of December, might possibly be treated as equivalent to a written direction to proceed with all the worh called for by the contract, although, where there is other than mason work tobe done, that is extremely doubtful. Without such a designation, however, there can surely be no question of unnecessary delay (after the first of December) with regard to mason work called for by tbe contract, but not specially directed in writing to be done. Here the contractor neither received notice to commence work at a particular time nor a notice authorizing the mason work. Assuming, then, that the Commissioner substantially complied with the statute requiring his certificate of unnecessary delay, we think he was not authorized to abrogate the contract in the manner he did, under the then existing circumstances.

The failure of the Commissioner to give Reilly notice of the sum which he was required to pay was also ground for a nonsuit. The agreement was to pay “ on notice from the Commissioner of the excess so due.” Notice from some one else was not the condition. It must be remembered that this was not an ordinary promise to pay money acknowledged to be due, but, in substance, damages for the breach of a contract, such damages to be liquidated in a particular way. One claiming a sum so brought about should be held to strict compliance with every prerequisite to payment, especially in an action against sureties.

The exceptions should, therefore, be sustained and a new trial ordered, with costs to abide the event.

YaN BbtjNT, P. J., and Bartlett, J., concurred.

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


author: VaN BeuNt, P. J.:

text:
    MAX S. KORN, Respondent, v. THE METROPOLITAN ELEVATED RAILWAY COMPANY and Another, Appellants.
    - Actions relating to real property — the holder of the record, title entitled to sue — an agreement to sell does not talce away such right — measure of damages.

    A person who is, by the record, the owner of real estate can maintain an action in relation thereto in his own name as being the real party in interest, and wliat- - ever private arrangements he may have with others in regard to the property do not concern the defendant in such an action.
    After the commencement, but before the trial, of an action to recover for an injury to real property, the plaintiff entered into a contract for the sale of the premises. The contract of sale had not, however, been carried out at the time of trial. Held, that this did not affect plaintiff’s right to proceed with the litigation.
    In an action to enjoin an elevated railroad company from maintaining its road in front of plaintiffs premises, and to recover for loss of rental value resulting therefrom, an expert for plaintiff was asked, “ What, in your opinion, is the value of that property, including the easements in Second avenue, which would give to the property the use of the whole of the street above the surface? ”

      Held, that the question was proper.
    Appeal by tbe defendants, the Manhattan Railway Company and the Metropolitan Elevated Railway Company, from a judgment, entered in the office of the clerk of the county of New York on the oth day of July, 1890, in favor of plaintiff.

      E. G. James, for the appellants.

      J. E. Burrill, for the respondent.
   VaN BeuNt, P. J.:

The first objection presented upon this appeal is based upon the-fact that this action is brought by Max S. Korn, in whose name the title stood, and that Isador S. Korn, who is his partner in the real estate transactions, was not joined therein as jffaintiff or defendant.

Upon the trial this objection was taken, and upon it being ruled that such an objection could only be availed of by answer, where it. did not appear upon the face of the complaint, a motion was made to amend the answer, which motion the court denied upon the ground that it was too late. We think, even if it was necessary to pass upon that question, that the rulings of the court in this particular were entirely correct. There was no merit in the motion to amend and no reasonable purpose to be subserved thereby, except-delay, and, therefore, there ivas no reasonable ground for its being granted.

But we had supposed that since the decision in the case of Sheridan v. Mayor (68 N. Y., 30) that the party who is the owner-of record, by a written instrument of conveyance of a cause of action, may maintain in his own name, as being the real party in interest, actions in relation thereto, and what private arrangement he might-have outside of his paper title was a matter of no consequence to-the defendant proceeded against.

The next objection necessary to consider is the fact that as to a portion of these premises the plaintiff had entered into a contract of sale, intermediate the commencement of the action and the trial thereof, which contract was not completed, however, prior to the time of the trial.

That the court was entirely right in its statement that a mere contract of sale is not a sale seems to be established by the case of Mitchell v. Bartlett (52 Barb., 319; affirmed 51 N. Y., 447), where it is held that a purchaser upon a foreclosure sale acquires no title until the delivery of the deed. In sales of that description, and as was the fact in the case cited, a contract of sale was entered into between ^ the referee and the purchaser, precisely of as valid a nature as the contract entered into between the plaintiff in the case at bar and bis purchaser, and it- was distinctly held in the case-cited that until the delivery of the deed, the purchaser did not-acquire any title, neither was he entitled to the possession of the land or the rents thereof, although he was charged with interest, upon his purchase-money because he did not take the deed when, it was ready for him. This principle was approved in Cheney v. Woodruff (45 N. Y., 98).

The only other question presented upon this appeal is that relating to an objection to a question which was put to an expert by the court. ' It was as follows: “ What, in your opinion, is the value of that property, including the easements in Second avenue, which ■ would give to the property the use of the whole of the street above, the surface ? ” This question was objected to upon various grounds, and was overruled, and the question answered.

It is claimed that, under the rule laid down in McGean v. Manhattan Railway Company (117 N. Y., 219), the objection is well taken. We'do not think that the question conflicts with any rule laid down in that case. We know of no means of proving damages, in cases of this description, except by evidence of this character, and if such evidence is to be excluded, then there is no basis whatever for proof upon which a recovery may be founded in these actions. It certainly could not have been intended by the Court of Appeals-to shut out all testimony tending to prove the value of the easement-which was taken, by anything that was said in .the case cited.

The ease of McGean v. Manhattan Railway Company was an action at law to recover past damages, and the rules of evidence applicable to such a case do not necessarily control the course of testimony in an action in equity where the defendants are asking the court to determine what, in good conscience, they should pay in order to avoid the injunction which the plaintiff shows himself to-be entitled to.

It seems to us that in the consideration of these questions of evidence in cases of this description that, as far as the fixing of damages-is concerned, it is not the request of the plaintiff that is being considered, but it is the prayer of the defendant that it might be allowed to avoid the injunction by the payment of a certain sum; and the question is, what, in good conscience, is the sum which these defendants should pay in order to avoid the operation of the .injunction. ■Clearly, upon such an investigation, the liarsh. and rigid rules of evidence in actions at law cannot apply, and even if they did, we think that the question under consideration would be allowed, even in an action at law, for the purpose of establishing what had been the injury sustained in the past by reason of the trespass which the defendants had committed.

The judgment should be affirmed, with costs.

Daniels and 0’Beien, JJ., concurred.

Judgment affirmed, with costs.


author: VaN BkuNt, P. J.:

text:
    HENRY O. GILBERT, Respondent, v. LEONARD G. QUINLAN, Appellant.

      Agreement to pay commissions for business furnished — when no time is set for its termination, it can be ended; when and how.

    One Quinlan, a grain broker, agreed to give to Henry O. Gilbert one-lialf of the commissions received by the former upon sales made for customers brought to him by Gilbert. No time was fixed when the contract should end. Some time after the contract was made, and after it had been acted upon, the board of trade of Chicago, at which Quinlan dealt, reduced the commissions on grain sales one-half, and thereupon Quinlan notified Gilbert that he could no longer pay him said one-half.

      Held, that the contract was terminable.
    That all that was necessary to justify Quinlan in refusing to continue to pay the commission was reasonable notice to Gilbert, and a good reason for his own course, not arising simply out of a desire to avoid payment of further commissions.
    Appeal by the defendant Leonard G. Quinlan from a judgment, entered in the office of the clerk of the county of New York on the 14th day of May, 1890, for $1,379 in favor of plaintiff; and also from an order, entered in said office on the 12th day of May, 1890, denying defendant’s motion for a new trial.
    The action was brought to recover one-half of the total amount of brokerage received by the defendant, a grain merchant, upon purchase sales made by the defendant under the employment of one Miner, a customer brought to the defendant by the plaintiff. The defendant claimed that he had by reason of a change in the rules of the board of trade of Chicago, given the plaintiff notice that he would not any longer carry out the agreement made between them as to the payments to be made to the plaintiff out of the commissions earned by the defendant in business procured through the plaintiff.

      Hatch, <& Warren, for the appellant.

      W. W. Niles, Jr., foi the respondent.
   VaN BkuNt, P. J.:

This action was brought to recover for services m procuring customers for the defendant, who was a stock and grain broker, which the plaintiff alleges he became entitled to by procuring a customer for defendant by the name of Miner.

■ The contract sworn to by the plaintiff was that defendant agreed to give him half commissions for all the custom that the plaintiff brought him. There was a question in the case as to whether this one-half applied to the total amount of the commissions upon the transactions or only to the amount of the commissions actually received by the defendant, which question was resolved by the jury-in favor of defendant.

It is conceded that Mr. Miner was first introduced to the defendant by the plaintiff, and that his transactions through the defendant were to a considerable amount; and the jury found that the plaintiff was entitled to commissions received upon the whole of these transactions. It was sought to be proved by the defendant that by reason of a change in the rules of the board of trade of Chicago he could not pay commissions to the plaintiff upon these transactions in the then future, and that he notified the plaintiff of the termination of their agreement; and that all the transactions with Miner which formed the basis of the subject-matter of this action took place after such' notification.

The fact that he gave the plaintiff such notification was corroborated by disinterested witnesses?- and is, indeed, admitted by the plaintiff. He says, upon cross-examination, in answer to the question “ Can you tell anything that was said about Miner and your business relations in that conversation” (referring to a conversation had between the plaintiff and the defendant in regard to the change of rates made by the board of trade) ? “ Nothing, except that I told Mr. Quinlan that Mr. Miner was trading there, and, of course, that he ought to keep on paying me the same as he had done; that I should not stand it unless he did; I brought the customer there, and when he got fairly started he did not want to pay me any more.” He said further, “The subject did come up between myself and Quinlan that he did not want to pay me any commissions.”

This evidence clearly shows that conversations, substantially as ■claimed by defendant in regard to the payment of commissions, did come up, and that defendant had notified the plaintiff that he would not pay him any more commissions in consequence of the change of rules made hy the board of trade, sworn to by the defendant and two of his witnesses.

In the submission of the case to the jury the court instructed the jury that this contract was one which could not last forever. It was one that was terminable at the election or option of either party; that it would have been proper for the plaintiff at any time to have taken his customer to another broker; and it was entirely competent for the broker at any time, on giving reasonable notice, to have said to him, “ The relation that exists here between Mr. Miner, your customer, and myself is now severed, and hereafter it is terminated.” There was no exception to this charge, but the court was requested by plaintiff to charge that in a contract like that, if they find the agreement was to pay half the commissions on that customer’s trade, they must stop trading with the customer, so he will be turned back, or else they must have the plaintiff assent to the termination of the contract, one or the other.”

This the court declined to charge and an exception was taken. The jury found a verdict in favor of the plaintiff, and from the judgment thereupon entered, and from the order denying a motion for a new trial on the ground, among others, that the verdict was contrary to the evidence, this appeal is taken. It is clear, upon an examination of the evidence in this case, that if the instruction of the court in reference to the terminable character of the contract was correct, the verdict is against the evidence.

The only question submitted to the jury, outside" of the question as to the amount of the commissions, was as to whether the notice ■of termination of the contract claimed hy the defendant had been given. That such notice was given was testified to distinctly by the defendant and two witnesses, and their evidence was in no respect shaken. That such notice was given seems to be conceded by the testimony of the plaintiff given upon cross-examination, as above stated. It is true, he says, that at this conversation neither •of the two witnesses who were examined on behalf of defendant were present. But the language of the plaintiff is entirely inconsistent with the idea that such notice was not given. He says that the defendant had to keep on paying him the same as he had done, and he should not stand it unléss he did. And in another place that the subject came up between himself and the defendant that he did not want to pay him any commissions ; and in another place that there was not any one present when Quinlan told him he would not pay him any more commissions. And in answer to the question, “ How many times did he tell you he would not pay ? ” lie answered, “ He told me so once; I do not recollect him telling me any more.”

This was a clear corroboration of the testimony of the defendant and his witnesses that this conversation did take place, and that this notice was given. There was no evidence whatever contradicting, in any material particulars, the evidence of the notification, and the jury should have found in favor of the defense upon that issue.

There is only one other point to be considered, and that is whether, upon the whole case, as matter of law, the plaintiff was entitled to the direction of a verdict for the amount for which the jury rendered their verdict. That depends upon whether the request to charge, which has been adverted to, was correct, and that it was error to refuse it.

"We do not think that a contract of the kind mentioned mortgages a customer forever. It is true that such a contract cannot be terminated at once, but only after the lapse of a reasonable time and for a good motive. But the simple notification of the cancellation of such a contract does not prevent the having of dealings by a party with that customer at some subsequent time without being liable to the payment of commissions to the introducer. Good faith must be at the foundation of the action of the party seeking to terminate the contract. He cannot terminate the contract merely for the purpose of getting rid of the payment of commissions. But where a good reason arises and proper notice is given, the contract may be terminated. The agent, if he chooses, may take his customer elsewhere if he has sufficient control over him so to do, which it would appear in this case, from the evidence, that he did not have.

The cases cited upon the part of the appellant, namely, Briggs v. Rowe (4 Keyes, 426); Briggs v. Boyd (56 N. Y., 291); Sibbald v. Bethlehem Iron Co. (83 id., 378) and Wylie v. Maine National Bank (61 id., 415), have no application whatever to the case at bar; they all being cases in respect to employment for particular services which had not been accomplished by the broker.

Upon the whole case we are of the opinion that the verdict was against the weight of evidence, and that the order denying the motion for a new trial should be reversed upon that ground ; that the judgment should also be reversed upon payment by the appellant of the costs of the trial; and that a new trial should be ordered, with costs to appellant to abide the event.

Daotels, J., concurred.

Order and judgment reversed upon payment by the appellant of the costs of the trial, and a new trial ordered, with costs to appellant to abide event.


author: O’Brien, J.: Wan Brunt, P. J.:

text:
    EDMOND H. SENTENNE, Respondent, v. HORACE R. KELLY, Appellant.

      Construction of contract — “as soon as possible ” implies greater celerity than "in a reasonable time” — a witness cannot give an opinion as to what is ‘ ‘ as soon as possible. ”
    Where a contract provided that certain signs were to he manufactured “as soon as possible,” this implies their completion sooner than in a “reasonable time.”
    A witness was asked, having in view the contract, state what you consider “ as soon as possible.” This was excluded.

      Held, proper.
    What is a “ reasonable time, ” and what is " as soon as possible, ” are questions of law for the court.
    • Appeal by the defendant Horace E. Kelly from a judgment, entered in the clerk’s office of the county of New York on the 22d day of May, 1889, in favor of plaintiff for, and from so much of two orders, entered in said office on the 20th day of May, 1889, as denied the motion of defendant for a new trial.

      George Oppenheim, for the appellant.

      Henry B. B. Stapler, for the respondent.
   O’Brien, J.:

This action was brought to recover $1,431.90, for breach of the following contract:

“New York, April 27, 1887.
“New York Sand Blast Works:
. “You are authorized to manufacture for us Fifteen hundred (1,500) embossed glass signs, size, 7x9, framed in like sample, and worded as follows, to wit:
4f if if if if if
“Eight hundred to be delivered as soon as possible, balance within eighteen months, for which we agree to pay two thousand dollars ($2,000.00) for 1,500 signs. * * *
(Signed.) “HORACE R. KELLY & CO.”

The defenses interposed were that the signs delivered were not like sample and were not delivered within the time as called for by the contract. As to the first defense there was conflicting evidence as to whether or not the signs 'delivered were like the sample, and while some fault might be found with the admission of evidence under objection, of one of plaintiff’s witnesses as to the difficulty in obtaining in the market the leather back similar to the sample, the injury thereby done would not be sufficient to call for the reversal of the judgment based upon a verdict which, upon all the facts relating to this issue, the jury found adverse to defendant. To entitle plaintiff to recover it was incumbent to show that the goods were delivered “ as soon as possible,” so as. to be within the terms of the contract. As the exceptions taken to the judge’s charge and to the exclusion and admission of testimony are to be determined by the consideration of what was meant by tins expression “ as soon as possible,” it is necessary at the outset to have this phrase defined.

In Atwood v. Emery (1 C. B. R. [N. S.], 113), it was said “the expression is one that is susceptible of several different significations.”

In that case Creswell, J., says : The case has been argued “ upon an assumption that the plaintiff’s engagement was to execute the work with more speed than would have been required had the words been “ within a reasonable time; ” * * * if the defendant had intended to have the hoops within a limited time he should have taken care to express himself accordingly. I think this contract means no more than a reasonable time, regard being had to the plaintiff’s facilities and extent of business, and to the contracts he already had on hand.”

In that same case Cbowdee, J., says: The words ‘ as soon as possible ’ clearly meant £ as soon as you possibly can.’ Nor can I understand how it can reasonably be suggested that either party contemplated that the plaintiffs were to put aside any other engagements, in order that this particular one should be performed. If the defendant had desired to have the goods by a limited time, he should have taken care to have given a more limited order.”

In the Hydraulic Engineering Company v. McHaffie and others (29 English Rep. [Moak’s Notes], p. 102) the case of Atwood v. Emery (supra) was examined and criticised. Beamwell, L. J., says: To do a thing £as soon as possible’ means to do it within a reasonable time.” In Atwood v. Emery the expressions of eminent judges seem to favor a different view as to the construction of the words as soon as possible.” I quite agree that a manufacturer or tradesman is not bound to discard all other work for the occasion, in order to take in hand a thing which he promises to do as soon as possible; ” for instance, a tailor who accepts an order to make a coat u as soon as possible” need not put down a half-made vest in order to begin the coat; every customer knows at the time of giving the ■order that the manufacturer or tradesman may have other orders on hand ; and I do not think that Atwood v. Emery goes further than this. * * * If, however, it is an authority in favor of the (defendants, I cannot agree with it. In construing the contract in the present case, I think it would be utterly unreasonable to hold that the defendants were not bound to deliver the gun ’ until the state of affairs in their work-shoj> should allow them to do so; the .defendants ought not to have undertaken to make it, unless they were certain that they could carry out their contract.”

In the same case, OottoN, L. J., says: “ By the words ‘ as soon as possible’ the defendants must be taken to have meant, that they •would make the gun ’ as quickly as it could be made in tbe largest establishment with the best appliances. I do not think that these words can be taken to mean that the defendants merely promised to make the “ gun ” as quickly as the means at their disposal might allow.” In Duncan v. Topham (8 C. B. R., 225, 105 N. Y., 412), where the contract was to send five tons of oil cake to be delivered directly, a verdict in favor of the plaintiff was reversed because the judge charged that the meaning of the contract was, that the goods should be sent as soon as practicable, and if, on the evidence, there had been a delivery, or offer to deliver, within a reasonable time, they should find for the plaintiff. It was therein held that “ a reasonable time ” means a somewhat more protracted time than directly.

There is, of course, a distinction between “ directly ” and “ as soon as possible; ” and the only purpose of referring to that case is to .show that expressions such as directly ” or “ as soon as possible ” are not synonymous with, nor do they mean the same thing as, a reasonable time.”

In Parsons on Contracts (vol. 2 [7th ed.], p. 661, foot paging 794) it is said: If the contract specifies no time, the law implies that it shall be performed within a reasonable time, and will not permit this implication to be rebutted by extrinsic testimony going to fix a definite term, because this varies the contract. What is a reasonable time is a question of law.” In Addison on Contracts (vol. 2, p. 1188), where a number of authorities are cited, the rule is thus stated: A contract to do a particular thing directly,’ £ or as soon as possible ’ or £ forthwith,’ does not mean that it is to be done mstanter, but there must be no delay in performance; and such a contract requires a much more speedy fulfillment than a contract to do a thing within a reasonable time.” These authorities are sufficient for the statement that, unless the expression “ as soon as possible ” meant a greater celerity than a “ reasonable time,” then they were utterly superfluous in the contract. Por, as we have seen, if no time is specified, the law implies that it is to be performed within a reasonable time. Applying the law as thus settled by text writers and in cases, to the questions presented by the exceptions, it remains to determine whether any error was committed sufficient to justify a reversal.

Taking the judge’s charge .as a whole, I do not think any fault can be found therewith; for though he defines the words “ as soon as possible ” as synonymous with “ a reasonable time,” he qualifies the latter expression in such a way as to bring it within the rule so that the jury were correctly instructed, with regard to plaintiff’s duty in reference to delivering the signs with all possible expedition. In other parts of the case, however, we do not find the same care observed, and notwithstanding the objection made by the defendant, the court and the plaintiff treated the expression “ as soon as possible ” as synonymous with “a reasonable time.” Thus, in folio 96, the plaintiff asked the witness, “ "What, in your opinion, would be a reasonable time for the making and delivering and framing of 800 embossed signs such as I show you ? ” This question is faulty in two respects, first, as calling for an opinion upon a question which the court had ruled was a question of law, and, secondly, as assuming that. “ a reasonable time ” and “ as soon as possible ” were one and the same expression. The same fault is to be found with the questions asked by ¡Dlaintiff as they appear upon page 34 of the printed record. These questions directly pointed to one of the main issues about which the parties were contending, and while it would have been proper to have allowed witnesses who were competent by reason of their experience to state how long it would have taken to manufacture the signs,, this would not, as the question asked and answered did, intrench upon the province of the jury. (Guttwillig v. Zuberbier, 41 Hun, 365.) The latter, under the instructions of the court as to the construction to be given to the contract, were to determine what these witnesses, were allowed to conclude, viz., whether the delivery was made in time.

The defendant’s grievance in respect to this testimony is accentu7 ated .when we refer to a similar question asked by the defendant which in all respects was like those admitted on plaintiff’s behalf, except that instead of using the phrase “ a reasonable time ’’ the. one used was that of the contract, namely, “ as soon as possible.” This question, to be found at folio 59, was as follows: “Your contract was 800 signs to be delivered as soon as possible. The date is. April 27th. State what you consider ‘as soon as possible.’ ”

This question was objected to as being a question of law and the objection was sustained and defendant excepted. It will thus be seen that while we agree with the excluding of the last question, it seems but proper that where the same questions were asked and answered, in favor of the plaintiff, that a similar rule at least should have been applied in favor of the defendant, and the testimony so objected to should have been excluded.

■ These errors cannot be regarded as immaterial, because they went to the whole gist of the action. And upon a reading of the whole case it is evident that the confusion introduced relative to plaintiff’s duty in respect to time of delivery must necessarily have prejudiced the defendant. In Brady et al. v. Cassidy (104 N. Y., 148) it was held that “ when the terms and language of a contract are ascertained, in the absence of technical phrases or of terms the meaning of which is obscure, or of latent ambiguities, rendering the subject-matter of the contract uncertain and doubtful, the office of interpreting its meaning belongs to the court.” (See, also, Dwight v. Germania Life Insurance Company, 103 N. Y., 353.)

The language used in this contract was neither ambiguous nor technical, and the construction thereof was for the court, and not for the witnesses. We are unable to reconcile the rulings made for and against the plaintiff.” “An unequal application of the rules of evidence offered by one party and excluding evidence of the same character on the same point offered by the other is good ground of reversal.” (Holten v. Holten, 5 Week. Dig., p. 14.) It is unnecessary, therefore, to consider the other questions raised upon this appeal, as the judgment must, for the reasons stated, be reversed and a new trial had, with costs to defendant to abide the event.

Wan Brunt, P. J.:

I concur in the result. It does not appear that adjudications can alter the import of plain words in a contract. It seems to me that the fact that as, without any words of expedition in the contract, the plaintiffs would have been bound to furnish the goods within a reasonable time, the addition of such words show conclusively that the parties had in mind something in addition to what the law implied. “Within a reasonable time ” seems to mean within such time as it can be done, following the ordinary course of business. “As soon as possible ” ■seems to mean as soon as can be done, using the greatest diligence.

Daniels, J., concurred.

Judgment reversed and new trial ordered, with costs to defendant do abide event.


author: O’BbieN, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THOMAS F. COOK AND Others, Appellants, v. CHARLES E. FLEMING, CHARLES SCHROEDER and WILLIAM S. WATSON AND Others, Respondents.

      Corporations — religious society incorporated under chapter 60, Laws of 1813 — what is an “omission or neglect” to choose officers within section 3, chapter 168, Laws of 1844 — effect of ouster of some of a vestry upon those who remain.

    A religious corporation, known as “tlie Rector, Church. Wardens and Vestrymen of the Protestant Episcopal Church of St. Stephen, in the city of New York,” was duly organized under section 1, chapter 60, Laws of 1813. The number of wardens was two, and of vestrymen eight; and these, with the rector, formed the vestry. At an election, held April 7,1890, ten persons were declared elected wardens and vestrymen. On April 10,1890, an action was brought, in the Court of Common Pleas, against seven of such ten persons; the other three not being parties thereto, and judgment of ouster was rendered against said seven persons.
    Section 1, chapter 60, Laws of 1813, provides that church wardens and vestrymen shall hold their offices until the expiration of the year for which they shall be chosen, and until others shall be chosen in their stead. Section 3, chapter 158, Laws of 1844, provides that “whenever there shall have been any omission or neglect of any church, congregation or religious society, at their stated annual meeting, to choose any of the trustees ” or other officers, such church, etc., shall not be deemed to have been dissolved, but the trustees and other officers in office, at the time of such omission, shall be deemed to be the legal officers, and shall continue to hold their offices until others be chosen in their stead.

      Held, that the judgment of ouster in the Common Pleas related only to the seven persons made parties to the action, and did not destroy the title of the three-persons, not parties to such action and judgment of ouster, to their offices.
    That the removal of such seven persons did not constitute “ an omission or neglect ” on the part of the church to choose its officers, within the meaning of section 3, chapter 158, Laws of 1844, and hence that the incumbents, who were elected in 1889, did not hold over to the exclusion of these persons elected in 1890 against whom no judgment of ouster had been rendered.
    Appeal by the relators Thomas F. Cock, Edwin K. Linen, Edmund Luis Mooney and S. Montgomery Pike from a judgment, entered in the clerk’s office of the county of New York on the 6th day of November, 1890, in favor of the defendants, dismissing this action upon the merits, with costs; and also from an order, entered in said clerk’s office on the 19th day of November, 1890, denying a motion for a new trial.

      Stephen B. Weeks, also a relator, died before the filing of the notice of appeal. The defendants, other than those named above, were James Blackhurst, James Maclaury, Hobart B. Jacobs and Theodore E. Smith. The complaint alleged that these, although united in interest with the relators (i. e., members of the vestry elected in 1889), were in sympathy with the defendants,. Fleming, Sehroeder and W atson, and would not consent to become plaintiffs and relators.

      Wager Swayne, for the appellants.

      William H. Hamilton, for the respondents.
   O’BbieN, J.:

This is an action m the nature of a quo warranto, and was brought by the attorney-general in the name of the People, on the relation of plaintiffs, to oust the defendant Fleming from the office of warden of the Church of St. Stephen and the defendants Sehroeder and Watson from the offices of vestrymen of said church. The record presents the following undisputed facts :

The rector, church wardens- and vestrymen of the Protestant Episcopal Church of St. Stephen is a religious corporation, organized under the Laws of 1813 (chap. 60, § 1). The number of wardens is fixed by its certificate of incorporation and its by-laws at two, and the number of its vestrymen at eight, and these ten persons, with the rector, form the vestry of said corporation.

Certain of the defendants claim title t'o their office by virtue of an election held on April 7, 1890. On such date the stated annual election of the corporation was held and the defendants, with seven other persons, were declared elected to the offices of wardens and vestrymen. On the 10th day of April, 1890, an action, in the nature of a quo warranto, was brought in the Court of Common Pleas against the seven persons, who, with the defendants, had been so declared elected, and in that action judgment was rendered ousting the said seven persons from office. These defendants were not parties to that action, but thereafter this action was brought for the purpose stated.

The plaintiffs admit that, at the stated annual election, held on April* 7,1890, the defendants received a certificate of their election, but contend that they have never become the legal officers of the corporation, or entitled to act as such, because of an omission or neglect at said election to elect one other warden and six other vestrymen; that by such omission or neglect the church wardens and vestrymen in office at the time of such omission held over and are to be deemed the legal officers of such church and continue to hold their offices until others are chosen in their stead. This contention is based upon the Laws of 1813 (chap. 60, § 1), which provides “ that church wardens and vestrymen to be chosen at any of the said elections, shall hold their offices until the expiration of the year for which they shall be chosen and until others shall be chosen in their stead.” And Laws of 1844 (chap. 158, § 3), which provides: Whenever there shall have been any omission or neglect of any church, congregation or religious society, at their stated annual meeting, to choose any of the trustees, church wardens, vestrymen or other officers, such church, congregation or religious society, shall not be deemed or taken to have been thereby dissolved, but the trustees, church wardens, vestrymen or other officers in office, at the time of such omission, shall be deemed and taken to be the legal officers of such church, congregation or society, and shall continue to hold their offices until others be chosen in their stead.”

It having been adjudged that seven of the persons declared elected on the 7th day of April, 1890, were not legally elected, the claim is that the former wardens and vestrymen hold over by force of these statutes. It is conceded that the defendants here were legally chosen at the election of 1890, but it is asserted that they were not elected in the stead of the ten persons formerly in office so as to terminate the rights of the former incumbents, to hold their offices until others be chosen in their stead,” under the provisions of the act cited.

At the outset a serious question is presented as to the right of the relators to question the title of the respondents. They participated without objection in the election of 1890. They were candidates at such election and voted thereat. They actively participated with the rector in rejecting nine votes that were offered against them and for their competitors, four of whom were subsequently declared to have been elected. With knowledge of the facts the relators accepted the certificates of their election, accepted the offices under such certificates, went into possession, and, until ousted by the judgment of a court of competent jurisdiction, assumed to discharge all of their duties and functions.

.'In the suit brought against' them they persisted in claiming title under this very election, and still persist by an appeal taken from the judgment of ouster. Upon a state of facts in many respects similar to these now presented the Maryland Court of Appeals in the case of Handy v. Hopkins (59 Md., 157), held that the appellants who had claimed title under the election held in 1881, which was declared null and void, were not in a position thereafter to assert that they claimed title by virtue of a hold over.

This case is instructive not only upon this question, but as bearing upon the effect of the judgment of the Court of Common Pleas in •ousting the seven officers of St. Stephen’s who were elected, together with the defendants, at the election in 1890. It is an argument in favor of respondents’ position, that the effect of selecting officers at .an election subsequently declared to be null and void, and who were thereby removed, created vacancies ” in such offices. In the course ■of the opinion we find this language:

“The election of 1881 was not in effect null and void, until •declared so by the judgment of a competent tribunal. It was, in all respects, good and valid until declared otherwise; and the appellants were fully authorized to act in the discharge of the duties of their office, and all their official acts are as valid as if the election had been declared in all respects legal.

They had not only the color of a due election, but they had all the forms necessary to invest them with full authority of the offices, .and these they accepted and complied with, with an intention to hold under the last election, and none other. But from the moment that the election was declared null and void, the power and authority with which they were invested by virtue of that election ceased and the office then became vacant.”

"We shall assume, however, without deciding the question, that the appellants are not estopped from denying the title of the respondents; and will, therefore, pass to a consideration of the real •question in the case as to whether or not successors to the relators ■and the other members of the old board were elected the 7th day of April, 1890. It is conceded that the full board of officers required to be elected were voted for on the 7th day of April, 1890; that they were declared elected by the proper officers; that they all accepted and went into office under that election; that certificates of their election were made out and entered in a book of the minutes of the vestry, and that they continued to occupy the offices from April 7th until June 21, 1890. Notwithstanding these facts, the claim is advanced that the effect of the judgment of ouster of the seven other officers destroyed the title to the offices held by the three defendants here, who were legally elected and whose status is in no other way questioned. In other words, it is insisted that the removal of the seven constitutes an “ omission or neglect ” of the church to choose its officers, and, therefore, under the laws of 1844,, above quoted, the former incumbents held over to the exclusion of the defendants. This contention is sought to be strengthened by the argument that if the three defendants were elected in the stead of the former vestry, they are not conrpetent to transact the business of the corporation for the reason that they are not numerically sufficient to constitute a board for the transaction of business, nor are they, for the same reason, in a position, if the judgment of ouster of the seven others be construed as creating vacancies in those offices, competent or empowered to fill the same. (Laws of 1813, chap. 60, § 1.)

The law of 1844 employs the language that “whenever there shall have been any omission or neglect * * * to choose any of the trustees * * * the trustees, etc., * * * shall continue to hold their offices until others be chosen in their stead.”

In People v. Van Horne (18 Wend., 514), in construing a similar statute, the court defines .the term “ neglect ” as used by the legislature as synonymous with “omit” or to leave an act undone. Here there was no omission or neglect to hold an election or choose officers. The stated annual election was held, a full board was declared elected, and this board continued in office for two months and a half, when seven of its members were ousted or removed, leaving the defendants in office.

In our view, the law of 1844 (chap. 158) can have no application to a state of facts such as is here presented. It provides for a case where there is an omission or neglect to hold an election or choose officers, and cannot be construed as meaning that upon a vacancy being created or tbe title being destroyed of any officers by judgment or otherwise, that then the titles of all the others to their respective offices shall ipso facto also -be destroyed. This view is. supported by the provisions of the law of 1813, which prescribes that “ Whenever any vacancies shall happen ” * * * by death or otherwise, the said trustees shall appoint a time for holding an election to supply such vacancy.” It is further strengthened by recalling what the statute was intended to prevent, viz., the dissolution of the corporation by an omission to elect officers. No dissolution would result by an omission to elect all, as distinguished from some of the officers. It may be true, as claimed, that by the subsequent provision of the section just quoted, the remaining officers or trustees, not being sufficient in number to constitute a quorum, cannot fill the vacancies thus created.

In our judgment, however, a distinction exists between the right of persons to hold office and their power- to do certain acts which, by statute or the by-laws of a corporation, can only be done by a board or a quorum thereof. The', courts have in several instances set aside the election of a majority of directors and trustees of corporations, leaving only a minority in office and directed the vacancies to be filled by an election. In Ex parte Desdoity (1 Wend., 98) the election of thirteen trustees was set aside and that of the remaining four declared valid. In Vandenburgh v. The Broadway Railway Company (29 Hun, 348) it was held that any number of persons, who might receive a majority of the lawful votes, were elected, although there was a failure to elect the full number' required by law.

In the Matter of the Union Insurance Company (22 Wend., 591), twenty-two, instead of twenty-three, directors were elected. The old board thought the election, for that reason, had wholly failed, and claimed the right to hold over and order a new election. This election was held and twenty-three were chosen. On motion, the election of the twenty-three was set aside and the election of the twenty-two declared valid, and an election for one to fill the vacancy was ordered. In this latter case, it is true, which gives some strength to the appellants’ argument, is a dictum to the effect that “ if less than twelve, the major part of twenty-three, had received a plurality of votes, it may be that the whole election would have been void.”

It will be noticed that this dictum does not go to the extent of .saying that the election would have been void, and yet this is the ■only authority referred to in which any such intimation is given. On the other hand, in addition to the authorities cited, we find in the Matter of Long Island Railroad Company (19 Wend. 37) a dictum directly contrary. But it is unnecessary to examine all the arguments advanced to support appellants’ contention, for, after all, the question is reduced to a narrow compass and relates entirely to the construction to be given to the words “ neglect ” and “ omis■sion,” as used in the Laws of 1844.

In our judgment, successors to the relators and the other members of the old board were selected in April, 1890, and no omission or neglect to choose officers occurred, such as would entitle the old officers to hold over.” The new officers were fully authorized to act and •discharge their duties, as they did for a period of two months or more. The result of the judgment of ouster of the seven others elected with them was to create vacancies, and cannot be held to have destroyed the title to the offices to which the respondents were •duly elected. This conclusion, consonant- with law. seems to us to be founded upon reason and justice. To uphold the relator’s position would be, in effect, to determine that these defendants, who were regularly chosen at an election held at a time and place fixed by the .statute, articles of incorporation, by laws and invariable usage of the church, the notice for which was given under the direction of the ■court, and at which election all the votes cast, including the relators, were for the defendants, and whose title to office was thereafter recognized, should be ousted and excluded from office because a judgment subsequently rendered removed the relators themselves.

In our opinion the disposition made of this case by the trial court was proper, and the judgment and order should be affirmed, with costs and disbursements.

Van Brunt, P. J., and Daniels, J., concurred.

Judgment and order affirmed, with costs and disbursements.