text:
    SARAH ROSALTHA ODELL, by HENRY C. ODELL, her Guardian ad litem, Respondent, v. SOLOMON B. SOLOMON, et al., Appellants.

      Decided March 3, 1884.

      Liability of lessor and lessee in case of accident or damages arising from the premises being out of repair and in a defective and unsafe condition.—The respective duties and liabilities of grantor and grantee, and lessor and lessee, in regard to a nuisance upon real estate, discussed.

    When a window or .window-sash in a building, because of its not being kept in a safe and proper condition, fell out, and striking the plaintiff, inflicted severe injuries, it being the duty of the tenants, defendants, to keep the premises in good repair, and safe condition:—Held, that they, the tenants occupying the premises, were guilty of negligence, in failing to keep and maintain in good repair and condition the said window and window-sash, and were liable to answer to the plaintiff for the injuries and damages resulting from the fall of said sash upon her.

      It seems, that if one uses ruinous premises, as a tenant, he cannot avoid the consequences of a want of care in the use, by showing that the landlord had covenanted to repair.
    Before Sedgwick, Ch. J., and Truax and O’Gorman, JJ.
    Appeal by defendants from a judgment entered upon the report of a referee in favor of plaintiff. The facts in the case appear from the report of the referee, who reported substantially as follows:
    That the plaintiff is an infant over fourteen years of age, and that on April 3,1882, at a special term of the superior court, an order was made and entered whereby Henry C. Odell was, in due form of law, appointed guardian ad litem for said infant for the purposes of this action.

      That on February 3,1882, the defendants, C. Smith Lee, Frederick A. Burrall, and one Edward Andariese (in whose place the defendant, J. Wesley Harper, has been substituted) as executors of the last will and testament of Margaret Smith, deceased, were the owners of the house and lot known as No. 29 Union square, in the City of New York, situated on the southwest corner of 16th street and Union square, and they being the persons who built or caused to be built the structure or building upon said land and premises.
    That on or about February 1, 1879, Solomon B. Solomon, Judah H. Solomon and Simeon B. Solomon, went into, and from that time continued, and on the said February 3, 1882, were in the actual occupation and possession of all the rooms on the second, third, fourth and fifth floors of the premises above mentioned, with the appurtenances, under and by virtue of a lease for the term of five years from said February 1, 1879.
    That in and by said lease the defendants composing said firm of B. L. Solomon’s Sons covenanted and agreed as follows: “And that they (the tenants) shall and will, and truly at all times during the term hereby granted keep and maintain the said demised premises, and every part thereof, including the water pipes, water-closets, and vvater fixtures of every kind, in or appertaining to the said premises in good repair, order and condition, excepting only such repairs as may be rendered necessary by fire, or to the roof, or the skylights in the roof, unless such repairs shall be made necessary by the fault or act in any way at any time or times of the said parties of the second part or by their employees, then and in either and every case the said parties of the second part shall forwith make the repairs at their own proper cost, charge and expense . . . the parties of the first part (the landlord) shall make all such alterations as may be ordered by the department of public buildings, or by the board of health, at- their own expense.”
    That on February 3, 1882, at the time of the happening of the accident and infliction of the injuries hereinafter mentioned, the infant plaintiff was standing rightfully upon the sidewalk or highway of Union square, in front of said building, with a friend, while her father, with whom she was on her way home, stopped to speak to some acquaintance.
    That on the said February 3, 1882, at or about six o’clock in the evening of that day, it being a calm, still winter evening, a window or sash interfered with by no one, propelled only by its own weight without any force being applied thereto either by a human being or the elements, became detached from the frame in which it was placed in the second floor on the Union square front of said building and fell into the street.
    It first struck the sidewalk on its edge, then rebounded and fell against- the plaintiff, knocking her down, almost if not quite senseless, and inflicting injuries mostly about the head, a cut upon the forehead which was sewed up, the scar of which still remains.
    That the window-sash which fell and inflicted said injuries was appurtetant to, and part of the premises demised and in the possession and under the control of the defendants Solomon.
    That the window which fell was at the time it fell, and for some time prior thereto, had been out of repair, and in a defective and unsafe condition.
    That the plaintiff was injured as aforesaid, without any fault or negligence on her part.
    That the said premises and the window-sash, which fell out as aforesaid, were not kept and maintained in good repair, and safe and proper condition by reason of which the same fell out and inflicted the injuries aforesaid.
    That said injuries were inflicted and suffered solely and only by reason of the negligence of the defendants, Solomon.
    That after the accident, on a complaint made to the department of public buildings, city of New York, concerting the insecure condition of the windows of said building, an inspection was ordered. All the windows on the second story of the said building were ordered -to be altered so as to be made safe and secure, and a report was made to said department, May 27, 1882, that its requirements had been complied with, by giving larger pivots to sashes and the same were then safe and secure.
    The referee, as conclusion of law, found that by reason of the premises, the plaintiff was damaged in the sum of $1,600, and entitled to judgment for that sum with costs, against the appellant, and directed judgment accordingly.

      John E. Parsons, for appellants.
    In this case if any one is liable it is the owner of the property the lessors, not the lessees—(Swords v. Edgar, 59 N. Y. 28-34, and cases there cited ; Wood's Landlord and Tenant, 920; Fish v. Dodge, 4 Denio, 311; Honn v. Metcalf, 27 Conn. 631; Broderick v. Cheedle, 26 Ohio St. 397; Godley v. Haggerty, 20 Pa. St. 387.)

      Alfred Pagelow and Henry L. Vilas, for respondent.
    The lease under which appellants were in possession' cast upon them the duty to repair, and the presumption of negligence arises against them (citing many cases).
   By the Court.—Sedgwick, Ch. J.

The rule, if it is assumed to be valid, which requires, that in an action for damages for a nuisance, which was upon the premises of the defendant, when he purchased them, it should be proved that the defendant was requested to abate the nuisance, has no application to this case. In the present case, the defendants have more than merely retained or suffered the nuisance to remain, they have used it, and so have an original independent obligation in respect of it. 1 Chitty Pl. 89, gives to the matter a general statement: “ In some, cases it necessary, and in all cases it is j’udicious, prior to the commencement of the action to require the defendant to abate the nuisance.” He does not give any opinion as to the kind of cases in which it is necessary.

The -judicial declarations on this subject were first made, when the remedies were conceived to be such as depended upon sustaining the writs of assise and quod permittat in which the judgment might be for an abatement of the nuisance and damages.

In Baten’s case, 5 Co. 98, it is said, “And the reason that at the common law, assise of nuisance lay not against him who levied the nuisance, and him to whom the tenement was transferred, was because there was not found any writ of assise of nuisance in the register but which supposed that the tenant, in the assise levarerunt; and that cannot be said when the tenement is transferred to another for he did not levy the nuisance but only the other and now this statute gives (2 Weston, c. 24) a writ of assise in such cases se questus est nobis A quod B (who levied the nuisance et C) to whom the tenement is transferred levaverunt and this statute extends only to assise-of nuisance against him who made the nuisance and his alienee'.”

It is manifest, however, that the facts supposed in the writ, would have to be proved and especially, that the alienee was in reality, a wrongdoer, as to the very cause of action asserted, viz., the making of the nuisance, and not as to another, e. g., the continuance of the nuisance. This was accomplished by the request to him to abate the nuisance. If he did. not, he was legally in like case with his alienor. This is explained in Jenk. 260, case 57. “A. builds a house so that it hangs over the house of B. and is a nuisance to him. A. makes a feoffment of his house to C. and B. a feoffment of his. house to D. and the nuisance continues ; now D. cannot abate the said nuisance or have a quod permitlat for it, before he makes a request to C. to abate it, for C. is a stranger to the wrong ; it would be otherwise if A. had continued his estate, for he did the wrong.”

It is noticeable, that in this case last cited and in Baten’s case, as well as in Penruddock’s case, 3 Co. R. 205, the plaintiff had taken the land, when it was affected by the nuisance that had been made by his alienor.

In Wenzlick v. McCotter, 87 N. Y. 122, as to the necessity of a request, the court distinguishes cases, where the defendant has actually used the nuisance.

This is made a distinction in the case cited from Jenkins. “If nuisances be increased after several feoffments, these increases are new nuisances and may be abated by the several feoffees without request.” This case also declares, that after the nuisance has been extinguished, in general, as it is by one person becoming the owner of both tenements, and although, upon his subsequently making several feoffments to several persons, it remains extinguished, “ air, light, gutters and reparations remain not extinguished, for they are necessary for the life of man and the support of houses.” '

It might be a first impression, that request could not be required from one of the public to whom the obligation of the defendant lies in this case, but this request is not required as a matter personal to the plaintiff. It is to be shown, before the defendant can be said to be guilty of a tort (Wenzlick v. McCotter, supra).

In the present case, the defendants have had absolute control and actual management of the thing that caused the damage. On that is grounded their obligation, ac least to use due diligence and care, that it shall not cause damage. The plaintiff has her action because the defendants were bound to use due diligence to support any part of their house, that it was likely would fall into the street. In particular it was an omission of care to suffer the casing and the sash that moved in it to get into a state when it would fall, unless prevented, without taking ordinary means to prevent its falling.

Chief Justice Holt said in Anon. (11 Mod. 8), “that every man of common right, ought so to support his own house, as that it may not be an annoyance to another man.” The obligation cannot be confined to the pwner of a ruinous house. If another succeeds to his power of control and management, or uses it, and taking the benefit assumes the obligation, each of which conditions is a ground of responsibility, such other must also be liable.

I do not believe that if any one as a tenant uses ruinous premises, he can avoid the consequence of a want of care in the use, by showing that the landlord had covenanted to repair. Payne v. Rodgers (2 Henry Bl. 350), does not seem to be an authority for the proposition. In that case the owner was held to be liable for damage from the plaintiff falling into a hole in the foot pavement, owing to some plates or bars being out of order. The Chief Justice said. “I thought at the trial, that though the tenant was prima facie bound to repair and therefore liable, yet if he could show that the landlord was to repair, then that the landlord was liable.” Neither the form nor the argument of this remark implies the proposition that the tenant is not liable unless there is another proposition implied that both could not be liable, which the case against the landlord alone could not determine and is indeed not law. Justice Buller said, “ I agree that the tenant as occupier is prima facie liable to the public, whatever private agreement there may be between him and the landlord. But if he can show that the landlord is to repair, the landlord is liable for neglect to repair.” The case not being in exoneration of a tenant there is authority for no more, than that if the tenant is primarily liable, the landlord is liable if he agreed to make repairs. The two other judges said, “If we were to hold that the tenant was liable in this case, we should encourage circuity of action, as the tenant would have his remedy over against the landlord.” The meaning of this is not clear. If it be, that in avoidance of a circuity of actions, there might be encouraged an action against the landlord, this implies that, there was a right of action against the tenant and that he could recover against the landlord, which would make both liable successively. It is not clear that this can be a valid ground, for it implies that if damages for the tort were recovered against the tenant, he could recover them in an action against the landlord on the latter’s covenant to repair and this is doubtful.

It is not necessary to decide this, because, it is certainly a fact in this case, that the sash could have been kept from falling into the street, by retaining it in a safe state by cleats or nails or wooden bars, without changing any part of the fixtures or making what is understood by the word repairs.

Of course when the issue regards negligence, an element of liability is that the defendants knew or were bound to know, that there was danger that the sash would fall. The finding that the defendants were negligent in failing to keep the window sash which fell out, in good and substantial repair and safe and proper condition, with other findings, and the testimony are sufficient on this point to sustain the present judgment.

Judgment affirmed, with costs.

Truax and O’Gorman, JJ., concur.


source: Caselaw Access Project

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

license: Public Domain

text:
    HENRY D. BABCOCK, Assignee of BOWIE DASH, Appellant, v. GEORGE R. READ, Respondent.

      Decided March 3, 1884.

      Statute of frauds.— Contract in regas'd to the loss or profits on the future sale of real estate not within the statute providing that any agreement '■'■for the sale of any lands, or of any interest in lands ” must be in writing.

    The defendant contracted and agreed orally with one Dash the assignor of plaintiff, that he and Dash, should become jointly and equally interested in the losses or profits on the sale of certain real estate purchased by Dash; that they would divide any profit or bear any loss equally, that might arise therefrom. In the subsequent sale of the property made with the knowledge and consent of the defendant, there was a loss, one half of which defendant promised to pay: —Held, that this contract was valid and binding and not within the statute that provides that all contracts or agreements for the sale, of any lands or of any interest in lands must be in writing.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.
    Appeal by plaintiff from a judgment dismissing the complaint, entered upon the findings of a judge at special term.

      The facts of the case appear in the opinion of the court.

      Mr. Whitehead and Mr. Devine, for appellants.
    The agreement between Dash and the defendant was not within the statute of frauds. It Was not an agreement “for the sale of any lands or of any interest in. lands.” It was simply an executory agreement whereby one party undertook to bear one part of a possible loss in the sale of property, in consideration of a share of an expected profit. The mere parol agreement to form a partnership in land apart from all questions of asserting an interest in land appears by the weight of authority to be valid and actionable. Where the action is only for the agreed share of the profits of the sale of land, and there is no agreement affecting the title to the land itself remaining executory; the statute (at least in this country) does not apply (Brown on Statute of Frauds, §§ 261 and 262, 4th ed.; Dale v. Hamilton, 5 Hare, 369). See also Forster v. Hale (2 Vesey, 694); Essex v. Essex (20 Beavan, 442); Traphagen v. Burt (67 N. Y. 33); Chester v. Dickerson (54 N. Y. 1); Bissel v. Harrington (18 Hun, 81); Bunnell v. Tainter (4 Conn. 573); Coleman v. Eyse (45 N. Y. 39).

      Joseph A. Welch, for appellant.
    The agreement alleged and assumed by the plaintiff’s counsel was an oral agreement for-the sale, or for the creation of a trust in, lands, as described in the statute of frauds (2 R. S. 135, §§ 6, 8). 1. The statement in the complaint is, that of a verbal contract for the sale by Dash to Read of an interest in lands, within the eighth section of the statute, viz.: “that the said Bowie Dash and George R. Read, the defendant, agreed to become, and did thereupon become, copartners together and jointly interested in. the purchase of the house and lot.” 2. The finding by the court, as prepared by plaintiff’s counsel, is, “ that he (Dash) and the defendant would be and become jointly interested in said premises.” In Levy v. Brush ( N. Y. 589, 594, 595), the facts were in every substantial point like those found by the court in this case, except that the verbal agreement was prior to the defendant’s purchase. In Wheeler v. Reynolds (66 N. Y. 227), also a verbal agreement preceded the purchase of the property, and did not in any essential respect differ from that in this case. The court in that case approves Levy v. Brush. The statute of frauds cannot be evaded by calling the verbal agreement a partnership. 1. The agreement has no feature of a partnership. Partnership was not named between the parties, nor did they contemplate any joint use or improvement of the property. The agreement, as given by Dash, was a mere joint investment with a view to reselling for a profit. 2. A parol agreement of partnership for the purpose of dealing in real estate, whether by general traffic or by improving a single piece of property, will not supersede the requirements of the statute of frauds relative to the mode of taking the title to such property. None of the considerations on which real estate is permitted to be held in the name of one partner, when purchased with partnership funds and used for partnership purposes, apply to the present case (Fairchild v. Fairchild, 64 N. Y. 479; Chester v. Dickerson, 54 N. Y. 1; Wheeler v. Reynolds, 66 N. Y. 227; Williams v. Gillies, 75 N. Y. 197 ; Bird v. Morrison, 12 Wis. 138; Smith v. Burnham, 3 Sumner, 427; Chadwick v. Skidmore, 2 De Gex & J. 55).
   By the Court.—Sedgwick, Ch. J.

The arrangement between plaintiff’s assignor, Dash, and the defendant, on which the plaintiff founds his claim, was, according to the findings of facts in the case, as follows:

Dash entered into a written contract to buy No. 38 Great Jones street. Afterwards the defendant called on Dash and stated that he could sell the premises at a profit of $1,000, the purchaser to stand in the place of Dash. Dash thereupon stated that he would accept said offer. Thereupon the defendant said that he thought the price too low, that he could get a profit or advance for it, from another person, and then offered to pay said Dash $500 for a half interest in the property and bear half of any loss and take half of any profit that might be realized on any sale of the property ; said Dash thereupon stated that he would give said Read a half interest in the property and would not require him to pay $500 or any other sum therefor, and thereupon it was verbally agreed between said Dash and the defendant, that they would become equally and jointly interested in the premises and would divide any profit and bear any loss that might arise therefrom equally. After-wards Dash carried out his contract of purchase, accepted a deed of the premises, made to him as grantee, paid the consideration and went into possession. Afterwards Dash and the firm of which he was a member, becoming insolvent, made to the plaintiff a general assignment of all their property, for the benefit of creditors; afterwards Dash, at the instance of the plaintiff, had an interview with the defendant; the defendant said it would be impossible to sell the premises at private sale ; that they could only be disposed of at public auction-sale; thereupon, the plaintiff requested, with the knowledge and consent of the defendant, a firm of real estate auctioneers, in which the defendant was a partner, to sell the - premises at public auction, and accordingly any where sold for $12,800. The defendant was present at the sale. Afterwards the plaintiff as assignee rendered to the defendant an account that set out the payments, expenses and disbursements, in buying, keeping and selling the property ; that said account was accepted, approved of and ratified by the defendant; that it showed a loss of $4,388.13, of which by the verbal agreement the defendant was to bear one half; that defendant repeatedly thereafter promised to pay the plaintiff his proportion of the loss as shown by the account; that at a certain time after the defendant offered to pay the plaintiff in settlement of his share of loss $500, but plaintiff refused to accept.

A sentence from the opinion of the court, and which is supported by the evidence, makes, it may be, the intention of the parties more definite. It is: “ I have found that there was an oral agreement between the plaintiff’s assignor, Mr. Dash, and the defendant, that he, Dash, should pay the consideration for, and take the title to the premises, known as No. 38 Great Jones street, and that they, said Dash and the defendant, should share the profits and the losses on the transaction equally.”

The court found as a conclusion of law that the verbal agreement between Dash and the defendant, was void by the statute of frauds, and that no interest or estate in the real property was created or vested in the defendant.

The learned counsel for the defendant argues that the agreement, found by the court to have been made, was an oral agreement for the sale of, or for the creation of a trust in lands (2 R. S. 135, §§ 6-8). Under section 6, it seems to be clear that there having been no writing or deed, no estate or interest was or has been created in favor of the defendant. But it is to be observed that' it was no part of the arrangement that the defendant should have any estate or interest in the land itself, so far as legal title or right to possession was concerned. Nor was under the same section any trust created or declared in prcesenti, unless there was one by act or operation of law.

If, on the other hand, the words of the parties be looked at, not as a creating or declaring, an estate or interest, but as an executory agreement for the future creation, the matter is not clear, under the case of Burrell v. Root (40 N. Y. 496).

Sugden, in his treatise on the law of vendors, says: [123] § 2, after commenting on the section that provided against the creation of estates and interests, except by writing : “ This, however, of itself would not have prevented all the evils which the act intended to avoid, for although actual estates could not be created, yet still parol agreements might have been entered into respecting the future creation of them.” They are, therefore, valid, excepting upon the contingencies, specified in the statute when they shall be invalid.

An agreement to sell or transfer, is not an agreement to buy or take. Section 8 provides that every contract for the sale of any lands or any interest in lands, shall be void unless the contract, or some note or memorandum thereof, expressing the consideration, be in writing, and be subscribed by the party by whom the sale is to be made. It will have been noticed that this does not avoid an oral agreement by a purchaser to buy or take an estate or interest in land.

In Burrell 8. Root, the defendant, upon the conveyance land by him to plaintiff, had signed and sealed an agreement, that at the expiration of four years, if the plaintiff should be disposed to sell him the land at six dollars an acre, he would purchase it. At the end of the time, the plaintiff, in a letter that referred to the defendant’s agreement, said that he had elected “ to accept your offer, and shall be pleased to execute the necessary transfer of title, &c.” The defendant refused to accept a deed that was tendered, or to pay tbe price.

Judge Grover, giving the opinion, said that the evidence showed that the plaintiff was not bound to sell. It was manifest that no contract to sell, valid by the statute, had been made, -and, indeed, the plaintiff had made no verbal agreement to sell. Of the contract upon which the action was brought, the opinion said : “ It is not a contract for the sale of the land or any interest therein, but an obligation assumed by the defendant, for a sufficient consideration, to purchase in future at a specified price, in case the plaintiff shall elect to sell. The signature of the plaintiff to such a paper would be but an idle ceremony. Section 8 applies only to contracts where some obligation is assumed by the owner, and not at all to contracts like the present.” After the case of McWhorter v. McMahan (10 Paige, 386), ‘which was cited in Cammeyer v. United German Lutheran Churches (2 Sandf. Ch. 186); Chancellor Walworth, in National Fire Insurance Co. v. Loomis (11 Paige, 431), said: “It may be proper to remark, however, that the present statute of frauds does not require the written contract or memorandum of a sale to be signed by the purchaser, but it is required to be subscribed by the party by whom the sale is to be made (2 R. S. 135 § 8).”

If, however, section 8 does not embrace an agreement to purchase or take, then it is not invalid or void because not written, for irrespective of the statute, it could have been enforced.

To enforce such an agreement it would be necessary to show a consideration. A sufficient consideration would be, under Justice v. Lang, a verbal promise to sell or transfer, although such promise could not be enforced. Justice v. Lang (52 N. Y. 323), declined to review the determination of the same case in 42 N. Y. 493, that a promise void in law, made by one party, was a good consideration for a promise made, by the other.

My opinion, however, is that the parties did not intend, by their verbal arrangement, that Dash should transfer to the defendant, any interest in real estate or the rents and profits thereof, within the meaning of the statute. It was their intention that all the interests in the land as real property should remain in Dash, and that none of them should be transferred to the defendant. It is necessary to refer further to the facts to perceive what the real agreement of the parties was.

Dash was to pay the consideration of the deed to him. The defendant was not to pay any part of it, excepting so far as that might result from ah accounting under the agreement to bear half of the possible loss.

The plaintiff rendered to the defendant an account respecting the premises. The court found that the defendant promised to pay one half of the loss that the account disclosed. It may, therefore, be taken that the things done by Dash, as shown by the account, were such as the parties to the agreement intended should be done. The money paid by Dash as the consideration, the interest on mortgage, the taxes, the repairs, also paid by him, were charged, and' the rents, and the amount received' on the final sale, were credited, and one half of the loss was charged to each. There was nothing in this inconsistent with Dash’s having and retaining all the title and all the rents, so long as either remained real estate. When the land was turned into money on a sale, the money ceased to be real estate, and an agreement as to it was not within the statute. The same is true of rents, after they issue from the land and become personal property in the hands of the owner. Furthermore, it was ' not the meaning of the parties that the defendant should have any title to or specific interest in the proceeds after they had become personal property, but the various amounts were to be used for items in account.

Against this view are the words of the parties, as found by the court, that they would be and “become jointly and equally interested in the property.” Evidently these are not terms of art, intended to describe any estate or defined interest in land, and as it was the intention of the parties that Dash should remain as owner of the whole fee and recipient of all the rents, it cannot be said that by these words they intended that Dash should make any transfer to the defendant. The joint and equal interest meant, was such as would exist solely in the agreement made by words immediately following those that have been stated, viz: “and would divide any profit or bear any loss that might arise therefrom equally.” That is, the interest intended by the parties was not an estate or an interest as described in section 8.

The principle used to show that the parties did not contract for any interest in real estate, is that which is used in respect of things growing in the soil or attached to the soil.

Kent, in a note (3 Comm. 45), says of cases of agreements as to timber, crops, roots, &c. : “The rule to be drawn from the cases would seem to be that if the subject. matter of the contract was not to be severed and delivered as a chattel, but was a right in the soil to grow and bring the same to maturity and a right of entry to cut and take it, was a part of the contract, the case falls within the 4th section of the (English) statute of frauds. Bub when the agreement was for the tree, grass or crop, when severed from the soil, and which were growing at the time ; or if the contract was for the annual produce of cultivation and labor, or for emblements at maturity, and to'be taken by entry, the case falls within the 17th section of the (English) statute. This is the same as saying thalt it is not within the 8th section of our statute, and we have no concern with the statute relating to personal property.

In Frear v. Hardenbergh (5 Johns. 272), the defendant was the owner of land, on which the plaintiff had tortiously entered and made improvements, such as building. The defendant had commenced an action of ejectment, in which he was finally successful. During its progress he verbally agreed with the plaintiff to pay him for the improvements. Under ordinary circumstances these improvements were real estate. The court held the promise not binding, as it had no consideration, but was of the opinion that it was not void by the statute of frauds. The opinion was “ that it was nota contractor sale of land, tenements or hereditaments or any interest in or concerning them, but related to the labor alone, which had been bestowed on land under the denomination of improvements.” “The contract in such a case does not go to take from the promisor any land or any interest in or concerning it. The statute could have in view to avoid such agreements in relation to land asserted in parol, only when some interest was to be acquired in the land itself, and not such as were collateral and by which no kind of interest was to be gained by the agreement in the land.” A reference to the case, shows that this was not said on the ground that a man cannot acquire an interest in land which is already his own. The ground of these views is that the contract was in respect of matter, before they entered into and became real estate. The case was cited in Benedict v. Beebe (11 Johns. 145); Lower v. Winters (7 Cow. 263).

In Fraser v. Child (4 E. D. Smith, 153), the facts are correctly stated in the head-note. “ When A., having purchased an interest in real estate, sold under executions against a third party, and being unable to make payment at the required time, obtained the money from B. and assigned to him the sheriff’s certificate, held, that a parol agreement that the purchase should be a joint affair, and that (the property being found incumbered by a prior judgment, a dower interest and a mortgage) B. should take proceedings to make title by obtaining an assignment of the mortgage and reselling under foreclosure, A. promising to pay half of any deficiency or Iqss which might finally result, was a valid contract, not within the statute of frauds. The court considered that it was not a contract to create or surrender any interest in land. Judge Itobaham used this illustration: “If A., the owner of a lot of ground, procured from B. $1,000, and conveyed the lot to him on the parol understanding that if B. sold, and it did not bring $1,000, he would pay the deficiency, there would be no doubt that B. could recover such deficiency, and that the statute of frauds would not apply.” It is manifest that if a promise to pay a difference between a certain sum and another sum that shall be the amount of the proceeds of land, in case the latter shall be the lesser, is a valid promise, then there is sufficient consideration for it, in a promise to pay the difference if there shall be a gain.

In Pierrepont v. Barnard (6 N. Y. 279), there were standing trees on land of plaintiff. The plaintiff verbally authorized or licensed the defendant to go upon the land, and cut the trees and sell the lumber, all of which he did. The court said that the entry and cutting down were by license, which did not need a writing under the statute, and that they thereupon became personal estate, and the verbal arrangement of the parties attached to them in that character.

Other illustrations might be found in the cases of agreements made verbally in respect of fixtures, which but for the agreement would be real estate. The agreements may prevent their being real estate or may refer to them as detached from the realty, and in either case an interest in land is not dealt in (Dubois v. Kelly, 10 B. S. C. R. 496).

Such an arrangement as the present one could not be used for an evasion of the statute, the fact being that it could be consummated without transferring to the defendant any interest in real estate, and his not receiving any interest being immaterial to the accounting and its result.

That an agreement to bear losses and share profits that may result from the disposition of property, will not of itself create an interest in the property is shown in Coleman v. Eyre (45 N. Y. 38). The plaintiff was interested to the extent of one fourth in the profits or losses of a shipment of coffee, undertaken by him jointly with other parties. It will be observed, therefore, that he was possessed of a chose in action in respect of the adventure. While the adventure was on foot, it was mutually, agreed between the plaintiff and the defendant that the defendant should have one-half interest in the plaintiff, one-fourth interest in the adventure. In other words, the agreement was that in consideration of the plaintiff’s promising to account to the defendant for half of the profits in case of success, the defendant undertook to bear half of the loss in the contrary event. It was a clear case of mutual promises, and the obligation of each party was a good consideration for that of the other. The -opinion said: “ The agreement was not within the statute of frauds. It was not an agreement for the sale of any personal property or chose in action, but an executory agreement whereby one party undertook to beaf one part of a possible loss in consideration of a share of an.expected profit.”

I am of opinion that the present agreement of the defendant was, for the same reasons, valid and supported by consideration.

There was an objection made that the agreement was non-assignable, and that, therefore, the plaintiff took no interest in it under the general assignment made by Dash and his firm. Devlin v. Mayor (63 N. Y. 8), shows, however, that such an executory contract is assignable, and this is implied in Coleman v. Eyre, already cited.

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

Freedman and O’Gorman, JJ., concur.


text:
    CHARLES SNOWDON et al., Respondents v. WILLIAM H. GUION, Appellant.

      Marine Insurance.—Perils of the sea. — Construction of the phrase “ directly by a sea.1’—General printed clause in policy as affected by special written clause:

    The merits of this case involve a construction of the phrase in the policy “directly by a sea.” The policy had in its printed part the usual clause “touching the adventures and perils which the said assurers are contented to bear and take upon themselves, they are of the seas, &c.” The phrase in view “ directly by a sea ” was in the following written provision, “liable only for loss of animal or animals caused directly by a sea, stranding, sinking, burning or collision, &c.”

    Meld, that the word “ seas” in the general provision has no specific or limited reference to the ocean as a body of water. It is in contrast to land, and refers to contingencies of living and trading upon water as distinguished from living and trading on land. The particularization of one of the perils of the sea in a written clause, to which the general clause being printed becomes subordinate or inoperative, will not for that reason, affect the application of the maxim “ causa próxima, non remota spectatur.”
    In the present case the loss happened as follows : The cattle insured were stowed below the upper deck, in the forward steerage and on the forward part of the main deck. On the 18th of February the wind increased to a gale, with a high sea running. The vessel labored and rolled heavily and shipped such quantities of water that the decks were flooded and all the hatches had to be battened down. This condition of things continued for ten days. The cattle were thrown down violently, and in some cases thrown completely out of their stalls and into other stalls on top of other cattle. One hundred and fifty-six bead died from being bruised and from exhaustion, and those not killed were very much bruised and unable to stand upon their legs, so that some had to be hoisted on shore at the end of the voyage. The evidence established that the cause of the death of the cattle, and of their being bruised and unable to stand, •was the severity of the sea, from the continuance of the gale by and from which the cattle were tumbled and tossed about as described, and some evidence was given, tending to show that some of the cattle died from want of air, the hatches being battened down. There was no evidence that any water reached them, or that any suffered injury from the direct action of water upon them.

      Decided March 3, 1884.

      Held, that the general tossing and laboring of the steamer, that caused the injury to the cattle, and the loss claimed was not the result of a sea in the sense of the policy and its special written clause “liable only for loss of animal or animals caused directly l>y the sea but was the result of the general commotion of the sea and of the winds, and defendants were not liable for the loss.
    Before Sedgwick, Ch. J., and O’Gorman, J.
    This case is an appeal from a judgment entered in favor of the plaintiff upon a verdict of a jury.
    The action was upon a policy of marine insurance against loss of cattle shipped on board the steamer “ Greece,” from New York to London.
    The facts in the case appear in the opinion of the court.

      Treadwell Cleveland and Joseph H. Choate, for appellant.
    The contracting parties did not intend that these words, “directly by a sea” should cover a loss, such as that described in the testimony. It is the intention of the parties, the purpose and understanding which they had in common, which must be ascertained and followed by the court (Knapp v. Warner, 57 N. Y. 668; Staperhorst v. Wolff, 35 Super. Ct. 25 (affirmed 65 N. Y. 596); Reading v. Gray, 37 Super Ct. 79; Stokes v. Richnagel, 38 Super. Ct. 368 ; Clark v. N. Y. Life Insurance Co., 64 N. Y. 33 ; White v. Hoyt, 73 N. Y. 508, 511; Reynolds v. Commerce Fire Ins. Co., 47 N. Y. 604; Booth v. Cleveland Mill Co., 74 Id. 81).
    Irrespective of the intention of the parties in using these words, the words themselves 1 ‘ directly by a seaf as distinguished from 1 ‘ the perils of the seaf do not include the perils from which the loss in question happened.

      Each word in this added clause must be given its full and appropriate force. The language is :
    1. “Directly” not indirectly. .

      2. “A” not “ the sea.”
    3. “ A sea,” not the seas.”
    To construe the words “directly by a sea,” to mean a succession of seas, a storm, or “a heavy sea,” or a cross sea,” or “a violent sea,” as these expressions are used by nautical men, is not to distinguish them from “perils of the seas,” but to make the two expressions mean the same thing.
    If they are to be construed, as meaning such a stormy succession of waves as this vessel met with, why were they put in the policy at all ? Why not make the policy read so that the printed words “perils of the sea” should be in force ?
    The word “sea” was used in contradistinction from “seas,” and in the meaning of the word, as defined by Webster and Worcester, “a wave, a billow, as to ship a sea;” “a high sea or billow, a surge, as a vessel ships a sea ;” and the word “directly ” was used in contradistinction from indirectly, and in the sense of without interposition, as a sea boarding the vessel and killing or drowning the animal, or knocking it up against an obstruction, and thus killing it.

      Ira D. Warren, for respondents.
    The defendant became liable on this policy for damages caused “ directly by a sea.” Before these words were inserted in the policy, the defendants were “ liable only for loss of animal or animals caused directly by stranding, sinking, burning or collision, and amounting to 5 per cent.” Had not the above limitation been inserted in the policy, the defendants would have been liable under their policy for “ perils of the seas.”
    We therefore claim that the limitation for loss caused “by perils- of the seas” was so far restored by the words■ inserted that the defendants are liable for any loss caused proximately by a sea, or the sea. 1st. In marine insurance the underwriter only agrees to indemnify against losses caused by the “ direct and violent operation of the perils insured against ” (Arnold on Ins. 657). The risk here assumed was loss “by a sea.” It was not strengthened or weakened or changed by the word “directly,” because the “direct or proximate” operation of the sea would be inferred if the word “ direct ” was left out. 2d. The loss in this case was caused by the direct or proximate action of the sea. “By a sea ” is here meant a wave, or waves, not water in separation, but in bodies, raised by the winds. All the cases hold that a loss resulting from the violent motion of the ship, knocked about by the waves, whether or not one or more intermediate agents come between the material of the ship and the property lost, is a loss by a peril of the sea (Arnold on Ins. 664). Lawrence v. Aberdein (5 Barn. & Ald. 107), was a case where horses and asses were insured, with a stipulation against loss by mortality. In a violent storm they died by severe bruises, lacerations and injuries, caused by the pitching and rolling of the vessel. Held, that it was a loss by a peril of the sea, and not by mortality within the proper meaning of this word, as used in the policy.
    Best, J., says: “Here the injury to the animals arose directly and immediately from the violence of the tempest, or in other words from the perils of the sea.” Gabay v. Lloyd (3 B. & C. 793) was on a policy on horses “warranted free from mortality on the voyage, in consequence of a storm, the horses' broke down the partitions between them, kicking and bruising each other so much that they died. Held, a loss by perils of the sea. Montoya v. London Assurance Co., 6 Exch. 451, the ship was loaded with tobacco and hides. In consequence of bad weather the hides were wetted and became putrid, and damaged the tobacco by the odor, although the water did not touch the tobacco. Held, that the loss of the tobacco was by a peril of the sea. “ Underwriters are liable for a loss arising immediately out of the perils of the sea, such as the wind and waves, although remotely from the mismanagement and negligence of the master and seamen (Walker v. Maitland, 5 B. & A. 171; Bishop v. Pentland, 7 Id. 219). “In case of the concurrence of different causes, to one of which it is necessary to attribute the loss, it is to be attributed to the efficient predominating peril, whether it is or is not in activity at the consummation of the disaster” (1 Phillips on Ins. §§ 1132-1134; Coit v. Smith, 3 Johns. Cas. 16.)
   By the Court.—Sedgwick, Ch. J.

The defendant made a motion for a new trial upon the minutes. The motion was denied, but as no order was entered upon this denial, no appeal from it can be taken and the questions appropriate to a review ef such an order, cannot be examined here.

The merits of the case involve a construction of the phrase in the policy “directly by a sea.”

The policy had in its printed part the usual clause, as to the perils of the seas, that is “ touching the adventures and perils, which the said assurers are contented to bear and take upon themselves, they are of the seas, &c.”

The phrase in view, “directly by a sea,” was in the following written provision, “liable only for loss of animal or animals, caused directly by a sea, stranding, sinking, burning or collision, &c.”

The appellant argues that the phrase was inserted in the general policy, after this particular indorsement was made, and was intended to be applied to future shipments only. The position cannot be maintained. The circumstantial evidence, considered with the conflict of direct evidence, supports the verdict of the jury, on this issue.

As to the construction of the phrase it is first observed that while a peril of loss caused directly by a sea is a particular risk that would have been embraced in the general provision as to perils of the sea, if that had remained effective in the policy, it is not because the word “seas” is the plural of the word sea. ■ Policies generally have “ peril of the seas,” but writers upon insurance and judges, often use as an equivalent “ peril of the sea.” The word “ seas ” in the general provision has no specific or limited reference to the ocean as a body of water. It is contrasted to land. It refers to the peculiarities of the contingencies of living and trading upon water, as distinguished from living and trading upon land. It is certainly true, that the particularizing of one of the perils of the sea, in a written clause, to which the general clause, being printed, becomes subordinate or inoperative, will not, for that reason, affect the application of the maxim, causa próxima non remota spectatur. The full force of this consideration is not inconsistent with ascertaining what particular peril was described, whether it arose in fact, and whether the loss was caused by it.

The definitions of dictionaries seem to give wha.t is the use of the word “sea” among seafarers as well as among people generally. Webster makes sea to mean a wave, a billow, as to ship a sea ; the swell of the ocean in a tempest; motion or agitation of the water’s surface. Falconer’s Marine Dictionary by Burney says: ‘‘ Sea is variously applied by sailors, to a single wave, to the agitation produced by a multitude of waves in a tempest, or to their particular progress or direction. Thus they say, ‘we shippéd a heavy sea, there is a quiet sea in the offing, the sea sets to the southward.’ Hence a ship is said to head the sea, when her course is opposed to the direction or setting of the surges.” This is given after sea is defined as a separate word to mean “ that vast tract of water encompassing the whole earth, more properly called ocean,” and also as another word, “ more properly used, for a particular part of the ocean,” as “The Irish Sea, The Mediterranean Sea, The Baltic Sea, The Bed Sea.”

There may be doubt, that parties to such contract could accurately state the difference between the articles “a” and “ the,” yet if they use one or the other in a way that exhibits a discrimination in fact, that discrimination must have its proper weight.

Writers on language say that the definite article always grows out of a demonstrative pronoun, the indefinite out of the numeral one ; that an or a is the numeral one ; the is the demonstrative that.

The parties meant by a peril of “a sea” not a peril of the sea that might be in the winds as well as in the water, but a risk connected with a movement of the water of the sea. As it was described as a or one sea, the intention was to designate some part of the water, for example a wave, of which there might be several, each of which would be a different object from the general body of water and would involve its peculiar or characteristic risk.

A sea, in the sense of a general agitation of the water or waves, was not meant, because that is a collective term, embracing many waves,, and it ceases to be applicable when the individual waves which compose it are intended to be designated. A loss could not occur from the particulars, considered collectively, but only from their proper individual effects.

I do not mean that the parties confine themselves to a wave specifically, but they intended a definite and separated part of the general body of water, and a risk that would be peculiar to that, and a loss that might be definitely traced from that.

The general rule, that the peril insured against must be the causa próxima of the loss, to justify a recovery, is now to be taken into consideration. In reality this rule gives only a general principle, and furnishes no information as to what is meant by a proximate cause. In this case, it may at this'point be sufficient to say that the particular peril described must be the immediate cause of the loss.

But the use of the word “ directly ” has a relevancy to the special application of the maxim. It is not to be taken as if the parties were giving a definition of the maxim as embodying a general principle. Its connections show that it was not used as a term of art, but as a word descriptive of a possible fact, of a sea not indirectly but directly, in a point-blank manner, as it were, causing the loss. In another aspect it exhibits the intention of the parties in such a light that the maxim must have a strict construction, instead of the liberal construction usual in the eases of insurance. In Tilton v. The Hamiton Fire Ins. Co. (1 Bosw. 378), Judge Dues, said : “Strictly speaking, the proximate cause is that which immediately precedes and directly occasions a loss.”

The meaning of the parties may appear more definitely by a reference to the subject matter of the loss to be insured against. Before making the policy, doubtless the parties had in mind what risks the insurers would take, and what, the insured, under ordinary circumstances. The insurer would not take risks of loss that would arise in the nature of the thing insured in the ordinary situations of a sea voyage (1 Parsons’ Mar. Ins. 541). The memorandum articles are selected on the ground of the likelihood of their being in a different state at the end of the voyage, from that, at the beginning when no extraordinary peril has caused the difference. In this particular case, the ordinary motion of a vessel would be likely to throw animals down and lessen their value or endanger their lives.

In the note (2 Parsons’ Mar. Ins. 94), it is said that the difference of risk pertaining to different kind of goods has been recognized in. insurance business, for, at least, three or four centuries. “ The ordinance published in Florence in 1526, says : 1 That under the name, of merchandise shall not be understood slaves, fruits, horses, corn, wine, salted fish, &c.’ ”

It would be evident, too, that, in extraordinary circumstances, animals would be from the pitching and tossing of a vessel more exposed, than merchandise, to great damage. They would be unable to control their motions when once off their feet and to regain a safe position. This would be due to their conformation. These considerations would prompt a selection of a cause of loss to be insured against, which excludes the contingency of a loss, due, for the most part, to the helplessness of animals that has been referred to, and yet would give indemnity, when loss was suffered directly from it, although then their helplessness, might to a certain, but not great extent, contribute to the final loss. A loss that follows the direct action, upon animals, of a sea, shipped, would as practically as possible distribute between the parties the risks each would be likely and willing to take. This has a further force, when the fact is, that before the words “by a sea’’were inserted, the clause stood “loss caused directly by stranding, sinking, burning or collision and amounting to 5 per cent.”

In the present case, the loss happened from the following circumstances. The cattle were stowed below the upper deck in the forward steerage and on the forward part of the main deck. On February 18 the wind increased to a gale, with a high sea running. The vessel labored and rolled heavily and shipped such quantities of water over all, that the decks were flooded and all the hatches had to be battened down. This state of things continued for ten days, about. The voyage was from February 14 to March 2. The effect upon the cattle was that they were thrown down violently, and in some cases thrown completely out of their stalls. One hundred and fifty-six died from being bruised and from exhaustion. Some of the cattle were tossed out of their stalls and thrown into other stalls on top of other cattle. The master of the vessel testified : “ Q. Was the cattle being tumbled about in the way you have described, the cause of their death ? A. Yes, I consider that it was. Q. What was the cause of the death of the cattle, the whole cause of it % A. The cause of the death of the cattle was the severity of the sea at the time. Q. What was the effect on the cattle that were not killed? A. They were very much bruised and unable to stand on their legs, and some of them had to be hoisted ashore.” There was some evidence tending to show that some of the cattle died from want of air, the hatches having been battened down. None of the cattle suffered injury from any direct action of the water upon them. There was no evidence that any water reached them. I am of opinion that the general tossing and laboring of the steamer, which caused the injury to the animals was not the result of a sea, in the sense of the policy but of the general commotion of the sea and of the winds, and that for these reasons the defendants were not liable for the loss, on the evidence as given.

The learned court was led to the’ opinion that the policy did not value the interest insured because the indorsement did not value but only named an amount insured. It, however, seems to me that the general policy made special provisions that it should be a valued insurance by or through the means of indorsements that should simply contain amounts of insurance. This provision was “ endorsements valued at the same, provided they do not vary from the-more than-per cent., and the sound value at the place- of destination is not to be deemed to exceed-per cent, on purchasing price at the shipping port.” As ■ the blanks for these percentages were not filled in, it is argued that the whole clause was not agreed to. It seems to me, that as the proviso was separable from the rest; and introduced for the benefit of the insurers, it became ineffective for any purpose as a proviso, without affecting the main clause which it followed. There was moreover an independent subsequent clause, which had an unqualified meaning. “The said goods and merchandise hereby insured are valued at as indorsed.” And again, if there be ambiguity, the application made and signed by the insured and signed by the insurers provided for a valued policy in the words, “enter on open policy, &c., $9,500 on i interest, &c., valued at sum insured.” If there be a valued policy, the value of the cattle saved would properly be deducted from the valuation. Under some circumstances, this might call only for a modification of the verdict, but on the whole case there should be a new trial.

Judgment reversed, with costs of appeal to abide event.

O’Gorman, J., concurred.


text:
    LOUIS CASPER, Respondent, v. EDWIN WALLACE, et al., Appellants.

      Decided March 3, 1884.

      Verdict of jury directed by court.—Attachment levied upon chose of action.—Conversion of checks, facts constituting.

    Defendants made their check payable to the order of A. who indorsed and delivered it to B. (the plaintiff) who presented it at the bank upon which it was drawn for certification, which was refused, and the party offering the check was directed to go to the defendants, makers thereof, and upon presentation of check to defendants they wrote another check payable to the order of A. and delivered it to B., at the same time mutilating the original check by tearing off the names of the defendants. Plaintiff demanded a check payable to his order, and being refused, then demanded the return of the original check, and was refused. Held, that these facts stated in detail in the case, constituted a conversion of the original check.
    In an action by the creditors of A., in which an attachment issued, the sheriff claimed to levy upon the original check in the hands of defendants but did not take possession of same, but told defendants to keep it for him: Held, that this action of the sheriff did not constitute a levy, as he did not take the check into his actual custody (Code Civ. Pro. §§ 648, 649); also that by the act of conversion by defendants the character of the check was destroyed, and ceased to be a chose in action liable to levy, &c.
    Before Sedgwick, Ch. J., and O’Gorman, J.
    Appeal by defendants from judgment entered upon verdict of jury in favor of plaintiff.
    The action was for damages for conversion of check.
    The court directed a verdict for plaintiff. The facts in the case appear fully in the opinion of the court.

      Blumenstiel & Hirsch, for appellants.

      Stern & Meyers, for respondent.
   By the Court.—Sedgwick, Ch. J.

The following facts appeared in testimony. The defendants, through one of their firm, bqugh't in Washington, of one Strasburger, his stock of goods for cash, about January 10, 1882. The '’agreement implied was that in part payment of the cash, he should give to Strasburger, the defendants’ check on a bank in New York, for $3,500. For the purpose of drawing such a check, Strasburger handed to him a blank check on a Washington bank. He struck out the name of the bank, but intentionally omitted to write in the name of defendants’ bank. And also intentionally, instead of the true date of the bargain, he wrote, December 10, 1882. Strasburger did not perceive these things at first, but shortly after the defendant’s- departure from the place noticed that the bank had not been named, but noticed that only. Strasburger sent the check by a messenger to the defendant before he left town, and the defendant wrote in the name of the bank—“ The Ninth National Bank,”—but intentionally took the opportunity to strike from the check the words to order.” The defendant, at the time of giving the check in the first instance, had arranged with the attorney of Strasburger, that the latter should the next morning, call at defendant’s store in New York and obtain, in place of the check given, a regular check of defendants. The attorney went on the car to New York the same day. The plaintiff, his stepson, met him on his arrival and went with him to the hotel where he stopped. There he. asked the plaintiff to give him the plaintiff’s check for the check in question. The plaintiff did not know for what purpose the attorney wanted the check, nor did he ask him. The attorney as a witness explained that his object was to get money as early as possible the next morning, for the purpose of paying certain creditors of Strasburger, who was in a failing or actually insolvent condition. On the morning of the 11th January, one of the defendants went to the bank, and, according to his testimony: “I asked them, if this check were presented, they should come down and bring the checks and I would give regular checks, as they agreed in Washington, that they would take.” On the same morning,, the plaintiff went to defendant’s bank and asked that the check in question be certified. The cashier said that he was not familiar enough with the signature, and also because the name of the bank was written above an erasure, he would not certify it, but that plaintiff should go down to defendants’ office, and if they wanted it paid, they would send a messenger and -then the bank would pay it. The plaintiff told Strasburger’s attorney of this and the two went to defendant’s office. As to what was then done, one of the defendants testified that the two came in. The attorney, and not the plaintiff was in possession of the check. The attorney said he had been to the bank and they did not know him up there, and had told him he had better get another check. The defendant took the check in question and directed his clerk to draw a check for the same amount to the order of Strasburger. The attorney took this check and was going out. Before he turned back the defendant tore off the signature to the check in this action. Then, the attorney said, “ I want this check made out to my order as attorney for Strasburger. I have not any time to lose, and if you don’t do that I shall have to send the check to Washington and have to stay here until I get the money.” The defendant answered that he supposed he would have to do that. The attorney asked the defendant to give him back the other check, because the signatures were torn off. The attorney then went out and in about an hour returned and said “some one by the name of Casper owned that check.” The plaintiff, Mr. Casper, was not there at the time. That was the first time, the attorney mentioned the name of plaintiff in connection with that check. The plaintiff and his witnesses thoroughly contradicted the testimony given by the defendant who was a witness. But, as the case was taken from the jury, the most favorable construction of the whole evidence is due to the defendants.

The same day or the next, certain parties in an action against Strasburger, procured an order of attachment against his property. The deputy sheriff served on the defendants a copy of the attachment. He swore he did not take the.check into his possession but he saw the check at defendants’ office and told one of them to keep it for him.

This action is for a conversion of the check, from which the defendants tore off the signature.

One of the defenses is, “ that the check referred to in the said complaint, prior to the commencement of this action, belonged to one Hart L. Strasburger of Washington, and that the same was delivered to the defendants, by the attorney of the said Strasburger, and in lieu thereof, the said defendants delivered to said attorney another check of like amount, which check has never been returned to said defendants.” It will be observed that the tendency, of defendant’s testimony is to support this defense.

A second defense is, that Strasburger, being the owner of said check and claiming to be entitled to the amount thereof, was at the time of the alleged conversion, indebted to various parties for goods sold, in amounts alleged in the answer, and in all more than $3,500, that actions were commenced by said parties in this state, and that in them, orders of attachment of the property of Strasburger were ‘ duly made, and under them, the sheriff did attach and levy upon all property of Strasburger in the possession of these defendants, including any check given to said Strasburger or the plaintiff, his agent, and the moneys, if any due and owing thereunder.

<> Some of the objections to the plaintiff’s recovery in this case depended upon the check in question not being a negotiable instrument, one of the defendants having stricken from the check the words “ or order.” The defendant, who was a witness, swore that the paper being in his possession for another purpose, he struck these words out. He did so tortiously and could not by such an act without the agreement of the other party change the- character of the chose in action. Ho further attention need be given to this.

Before the Code of Civil Procedure it was the law, that “a debt evidenced by a negotiable security, whether due or not, so long as it is in the hands of the attachment debtor, can be attached by serving the attachment upon the maker of the security” (Bills v. National Park Bank of N. Y., 89 N. Y. 343).

Under the Code Civ. Pro. § 648, the attachment may be levied upon a cause of action arising upon contract including a promissory note or other instrument for the payment of money only, négotiable or otherwise, whether past due or yet to become due, and by section 649 this levy'must be made upon an instrument for the payment of money, by taking the same into the sheriff’s “actual custody.”

If Strasburger were plaintiff it would become essential to the defense to establish that the check, alleged to have been converted, had been taken into the actual custody of the sheriff. In this case the first defense is, that the check in this action had been delivered by Strasburger to the defendants and in lieu thereof another check was given, and the testimony shows that the defendants immediately destroyed the character of the check delivered to them by fearing off the signature, showing that they assumed they were the owners of that check and entitled to do that act. The check ceased to be a chose in action belonging to Strasburger and became a piece of paper belonging to the defendants. It was, of course, on this defense true, that the sheriff did not levy upon any debt due by defendants to Strasburger. If there were no levy the defense falls. The defendants would not have been in danger of paying a debt twice, for on the basis of their defense, the sheriff or the plaintiff in the attachment could not recover on the destroyed or satisfied check, nor on the original indebtedness or the second check, until the latter had been taken by levy.

To make the semblance of a defense, it would be necessary for the defendants to admit, that their contrivance had failed and that Strasburger through his attorney did not deliver the check to them, but that through their failure to destroy the check competently as against Strasburger the check maintained its character as an evidence of debt due by them that was levied upon, and that they did convert it, but that the levy was a defense. Such a defense would fail, if it appealed that the plaintiff and not Strasburger owned the check. There was no question for the. jury, as to whether the plaintiff had paid $3,500 for the check. The evidence was abundant as to that, not only from the plaintiff but from Strasburger’s attorney, corroborated by strong circumstances. If it be admitted that there were suspicious circumstances, so far as Strasburger or his attorney’s action was concerned, there was no attempt to prove that plaintiff had any notice, that the transfer of the check to him, was made for any fraudulent purpose. But I do not perceive that'there were any facts that tended to establish any fraud upon the part of Strasburger or his attorney. The only possible fraud would be, that Strasburger did not intend to devote the proceeds of the check to payment of creditors ; but there was no attempt to prove this, except by asking the attorney what he did with the proceeds of the check given by plaintiff. This was overruled, as to what he did, but he testified that he had been instructed to pay it to one of the creditors of Strasburger.

If the intention of Strasburger and the attorney, had been to thwart a surmised purpose of the defendants, to prevent Strasburger devoting the proceeds of the check to paying one set of debts rather than the one favored by the defendants, it was not fraudulent. Nor would it be fraudulent to thwart a purpose on the part of creditors, to levy upon property, if the disposition in fact of the property were not otherwise fraudulent.

The judgment should be affirmed, with costs.

O’ Gorman, J., concurred.


text:
    PATRICK McDERMOTT, Plaintiff, v. J. T. McDONALD and EDWARD KILDUFF, JOHN MURPHY, and JOHN NESBIT, Respondents, and JOHN J. BOWES, and CHARLES M. BOWES, Appellants.

      Decided March 3, 1884.

      Action to foreclose a mechanics' lien fled under the Public Works Lien Act— Laws of 1878, chap. 315.
    In an action brought to foreclose a mechanics’ lien filed under chapter 315, Laws of 1878, in which the plaintiff has filed a lis pendens with the comptroller, it is not necessary for a lienor made a defendant in such an action, and named as such in the lis pendens filed by the plaintiff, to thereafter bring a separate action on his own claim and lien, and file a notice of the pendency thereof with the comptroller.
    If such a lienor appears and answers in the action brought, and sets forth his claim and lien, he is entitled in the absence of other objections to a judgment in said action according to the date of filing his lien, when all parties who have filed claims and liens are made parties defendants, and have appeared and answered the claims at that point of time become the subject of adjudication. The court must determine their validity, their amounts, and their priority as liens.
    Before Sedgwick, Ch. J., Tkuax and O’ Gorman, JJ.
    Appeal in an action, begun under the provision of chapter 315 Laws of 1878, in relation to the enforcement of claims, upon money due by the city of New York to contractors. The appeal is by defendants whose claim was by the judgment postponed to the claim of respondents, other defendants.
    The plaintiff had filed his claim, brought an action within ninety days from the time of such filing and within the same time, filed notice of pendency of the action. He made the appellants and respondents parties. Before the beginning of this action the appellants and respondents had filed claims. Before said time, the appellants had filed their claim, and within ninety days had brought an action for the enforcement of such claim and filed notice of its pendency. They made parties defendant, the plaintiff in the present action and the respondents. By order under the provisions of the act, the two actions were consolidated, and the parties proceeded in the present action. The respondents did not within ninety days from the time of filing their claims begin an action for its enforcement. After ninety days they filed another claim but of like substance, and began an action. The adjudication in the present action, did not embrace such other claim.
    The referee decided that the respondents, having been made parties defendant to the present proceeding before ninety days had elapsed from the filing of their claim, although they had not begun an, action to enforce their claim, or filed notice of its pendency, were entitled to be paid before the appellants who had filed their claim after the respondent’s claim had been filed.
    The referee found that the present plaintiff begun his action within ninety days from the time of filing his claim and before the expiration of ninety days from the time the respondents had filed their claim.
    The following opinion was delivered by the referee:
    Charles A. Jackson, Referee.—The evident intent of the legislature was to consolidate the trial of all valid and subsisting liens in one action, thereby avoiding multiplicity of suits.
    The first question that arises is as to whether the action having been properly commenced by the plaintiff, and he having filed a notice of lis pendens within ninety days from the filing of his lien in this action, such filing inures to the benefit of such of the defendants as have appeared and answered herein without having filed a notice of lis pendens.

    Section 4 of the act says, “No lien provided for in this act shall be binding on the property therein described, unless an action be commenced within ninety days from the filing of the same, and a notice of pendency of said action be filed with the financial officer of the city.”
    In my opinion the words “an action” refer to the particular lien spoken of, and the word “thereon” is clearly understood as following the words “ an action.”
    It then follows that each and every lien must be enforced by action, and notice of pendency of such action must be filed with the financial officer of the city.
    How does the act anywhere else provide that anything else may stand in the place and stead of these requirements % Section 7 says, “ the plaintiff must make all parlies who have filed claims, the contractor, and the said city parties defendants. .... But all parties who have filed claims under this act may by answer in such action set -forth the same, and the court in which the action is brought may decide as to. the extent, justice, and priority of the claims of all parties to the action.”
    The word “may” here, as applied to the court, clearly should be construed “must.” That is to say, the correct interpretation of the latter part of this section would seem to be, that as to all parties who have availed themselves of the privilege of coming in and setting up their claims by answer, the court must decide as to their extent, justice, and priority.
    The next section 8 provides that the court in which the action is brought shall determine the validity of the lien . . and shall render judgment directing that the said city shall pay over to the claimants .... whose claims or liens it shall hold to be valid and just, in the order of their priority as determined by said court .... so much of said funds .... as will satisfy their liens or claims.
    These sections all show the intent of the act to be, that an action should determine the extent, validity, and justice of the liens of all the claimants against the fund.
    Section 13 provides that the lien may be discharged as follows Second, by lapse of time, when ninety days have elapsed since the filing of the claim. Third, by satisfaction of any judgment that may be rendered in actions.
    In my opinion the commencement of any action on any one of several claims, in which action the other claimants are made and become parties and present their claims affirmatively as by answer, as by section 7 is provided, is the commencement of an action to enforce each and every of said claims within- the meaning of the law ; and when such an action is commenced the ninety days does not run as against the claimants, parties thereto, whose claims were with respect to time valid, at the time of the commencement of such action.
    , The filing of a lis pendens is no essential part of the validity of the claim. A claim that is just may be enforced by suit, as we have seen. The filing of the Us pendens is simply to give notice to the financial officers of the city that the claim is being enforced, being brought before the court for adjudication. Now of what conceivable use would the filing of a dozen notices of the pendency of the same action be to the financial officers of the city \ It would in my judgment be useless.
    I am aware that the courts have ever interpreted mechanics’ lien acts with great strictness, but I do not think that strictness of interpretation inconsistent with the opinion hereby indicated.
    The legislature intended, in my judgment,
    1st. To make it necessary that a lien shall be filed.
    2d. That an action to enforce the same within ninety days should be brought.
    3d. That in an action brought by a claimant under a lien, all other claimants, who have filed liens, shall be made parties, that such other claimants may then set up their claims .by answer, and that, in the words of the Buffalo Mechanics’ Lien Act, Laws of 1880, vol. 1, chap. 143, § 8, “when a claimant is made a party defendant to any action brought to enforce any other lien, such action shall be deemed an action to enfore the lien of such defendant who is a claimant within the provisions of this section,” and the court shall then proceed to determine the justice and priority of such liens.
    4th. That one notice of pendency of such action should suffice.
    This conclusion has not been reached without much doubt.
    The defendant Smith not having interposed any answer, I am of opinion that he has presented no issue to be determined by the court, and that he has lost his lien. ■
    There is no dispute as to the validity and priority of the lien of the plaintiff McDermott, and he should have judgment therefor.

      Conlon & McCrae, for appellant.

      Wallace MacFarlane, for respondents.
   By the Court.—Sedgwick, Ch. J.

I think the learned referee was correct in his construction of the statute.

The statute has, as is usual in such cases, matters that require construction. Section4 declares that “nolien provided for in this act shall be binding upon the property therein described, unless an action be commenced within ninety days from the filing of the same, and a notice of pend-ency of said action be filed with the financial officer óf said city.” This, however, cannot mean that during the ninety days there is no lien or claim, for the next section declares that the lien shall attach from the time of filing the same to the extent of the liability of the contractor for the claim preferred, upon any funds which may be due or to grow due to the contractor from the city.

By section 6 any person who has filed the notice mentioned in the second section not the fourth section, may enforce his claim against the fund. By section 7 the plaintiff must make all parties who have filed claims, the contractor and the city parties defendant and all parties who have filed claims under the act may by answer in each action set forth the same, and the court may decide as to the extent, justice and priority of the claims of all parties.

It seems to be clear that, if judgment were obtained in an action like the present within ninety days from the time the first claim had been filed, there would be no ground for the position that a lienor, a party defendant, who had not begun an action and filed notice of it, was not entitled to judgment in his favor. It would apparently, be absurd that a lienor should be compelled to bring an action and file a notice of lis pendens after judgment in his favor and before ninety days had expired.

The statute is mandatory, as to the court adjudicating upon claims of all parties to the action. It must determine their validity, their amounts, their priority. Of course this must refer to the time of action brought, or of answer served. 0

When the law requires, that the plaintiff must make all parties who have filed claims—not who have begun actions,—defendants, the intention seems to be, that the claims shall at that point of time, became the subject of adjudication. If while action was going on, the claimants should be required to begin an action and file a notice of lis pendens it would be a useless and vain thing, especially in view of the policy of section 10, that provides for the consolidation of all actions brought under the act, as to the same fund.

If when an action is begun, the plaintiff files notice of its pendency making all claimants parties, then the persons for whose benefit a notice of lis pendens may operate, will have the same notice, that there would be if each claimant began an action and filed a notice with the financial officer of the city.

By section 13, a lien may be discharged, “ Second, by lapse cf time, when 90 days have elapsed since the filing of the claim and no action shall have been commenced to enforce the claim.” This evidently refers to such rights as depends upon the mere filing of a claim which constitutes the lien. If ninety days pass and no action is begun to enforce it, it is discharged. But it has no reference to a case, where the claimant’s rights do not rest upon those provisions that contemplate his own affirmative enforcement of the claim, as a plaintiff, but do rest upon those provisions that give him a right, as a defendant to have his claim passed upon and to obtain and enforce a judgment if it be in his favor.

If this last consideration be valid, Noyes v. Burton, 29 B. 631, does not sustain appellants position. That case did not refer to the effect of an adjudication provided by the law, that regulated the mode of enforcing claims filed under it.

If the court is to pass upon the validity of the claims, one of the questions will be, whether the lien has expired by the lapse of ninety days from the time of filing and before action begun without the commencement of an action and the filing notice of its pendency.

Judgmenb affirmed, with costs.

Truax and O’Gorman, JJ., concurred.


text:
    MARY C. RANK, Respondent, v. GEORGE LEVINUS, impleaded with AUGUSTUS H. GROTE, J. FREDERICK GROTE, and ADAM J. KAPP, Appellant.

      Practice and pleadings.—Ejectment, complaint in.—Joinder of parties, and causes of action.

    The complaint described certain real property and stated plaintiff’s title and right of possession to an undivided third part thereof, and alleged that the defendants, Grote and Kapp, had taken possession of the whole of the same, and denied all right, title, and interest in the plaintiff, etc., and in a separate section alleged that the defendant Levinus, “is wrongfully in actual possession of a portion of said premises, under and by virtue of the wrongful assumption of authority over said premises by the other defendants herein, and in defiance of the plaintiff’s rights, and refuses to surrender the same after demand duly made upon him for possession of said premises.”
    Defendant Levinus demurred to the complaint on the ground, 1st. That it did not state facts sufficient to constitute a cause of action against him, 2nd. Misjoinder of cause of action and parties. Held, that on demurrer the complaint was good under our present system of pleadings.

      Decided March 3, 1884.

      Further held, that though the land of which, in part, the appellant is in possession, is definitely described, but there is indefiniteneas of that part, this is not ground of demurrer.

      It seems, that it furnishes ground for a motion to make more definite and certain.
    Before Sedgwick, Ch. J., Truax and O’ Gorman, JJ.
    Appeal by defendant Levinus from an interlocutory judgment overruling his demurrer to the complaint.
    The action was in ejectment against appellant and three other defendants.
    The complaint described the premises, and alleged that the co-defendants were in the possession of the same, and also stated in a separate and district allegation, that the appellant was in the wrongful possession of “a portion of the said premises under and by virtue of the wrongful assumptions of authority over said premises by the other defendants.” The appellant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and also for misjoinder of causes of action and parties.

      G. W. Cotterill, for appellant.
    The complaint as a pleading wholly reverses the necessary and usual statement of a cause of action. Instead of treating Levinus as the principal defendant, on account of his possession, he is regarded as a subordinate one, and is called upon to defend, not only as to the property of which he has no possession, but to pay damages for the acts of others. At common law the right to possession only was the subject of trial in ejectment, and the plaintiff had no right to make a third person, not in possession, a party (Wait's Actions and Defenses, title Ejectment, vol. 3, p. 11, and all elementary works). Even under the late amendments to the Code the occupant must be made defendant in the action, and he is the principal defendant (Code, § 1502). The plaintiff may, however, make a third person a party claiming ownership if he so desires (lb. § 1503). § 1502 is merely declaratory of the common law, which only tried the right of possession ; while § 1503 now allows the .trial of the title. But this, however, does not permit the plaintiff to join Levinus in regard to property with which he has no connection.
    The defendant Levinus being the principal defendant and occupant, the complaint should describe the property occupied by him, so that possession may be delivered by virtue of the execution, failing to do this is a ground of demurrer. The Code requires it (see § 1511), and the importance of it is fully explained in Budd v. Bingham, 18 Barb. 494. In this action the complaint was dismissed on the trial, and especial stress was placed upon the point that the Code requires the property to be described in the execution.
    The complaint claims damages by way of mesne profits against the defendant Levinus for the acts of the other defendants in regard to property with which he has no connection.
    The complaint does not state facts sufficient to constitute a cause of action against Levinus. The plaintiff is a tenant in common. By § 1500 of the Code, she is permitted to bring the action as such, but by § 1515, and by the common law, it should be shown that the defendants “actually ousted her, or did something amounting to a total denial of her right” (Edwards v. Bishop, 4 Coms. 61). There is no allegation to this effect in the complaint. It only alleges that “the defendant refuses to surrender the same after demand duly made upon Mm for 'possession of said premises.” He had a perfect right to refuse to surrender the same, inasmuch as he was lawfully in possession by permission of the other tenants in common. Plaintiff was not entitled to the whole premises occupied by him, but only to her share, and it does not appear that there has been any denial of this right. In addition to this, the complaint as against Levinns in no respect answers the requirements of a complaint in ejectment.

      John L. Hill, for respondent.
    The complaint contains all the elements of an action in ejectment. Plaintiff alleges : title to an undivided one-third of the premises. It is quite immaterial whether she obtained her title by descent or by devise. A wrongful entry, continued actual-possession of her share by her two brothers and Kopp, a stranger, and their wrongful usurpation, denial and defiance of her rights. This is plainly insufficient as against these defendants. See Code, §§ 1500,1515. Actual and wrongful possession of a part, her share in the same property by Levinns, who also denies and defies her rights. Independently of the question of joinder, this is enough against him. She demands immediate possession. See Code, § 1502.
    The appellant has confused a mere matter of joinder of parties defendant, which is not a demurrable defect (Code, § 488)—with the rules applicable to causes of action. His chief ground of demurrer is that two causes of action have been improperly united, (a) We insist that the complaint states but one cause of action. The precise point is plaintiff’s title. She claims by descent and by devise. She asserts but one cause, i. e., (1) title; (3) the defendant’s usurpation and defiance and total denial of her rights. (5) The action is primarily against the Grotes and Kapp, who claim title to the whole, and Levinns was properly joined with them because he “ has or claims an interest (no matter what interest—some interest—any interest) in the controversy adverse to the plaintiff” (Code, § 447). Observe, it is not an interest in the entire cause of action, but in the controversy. The spirit of the present system is to avoid circuity of action and a multiplicity of suits ; to bring in all the parties whose rights depend upon the same fact or rule of law, and settle the controversy, (e) Ejectment forms no exception to this general rule relating to mere misjoinder.
    The description of the premises occupied by Levinns is sufficiently definite, (a) The land itself is clearly described. (5) The allegation is that Levinus occupies “ a portion of said premises”—thus bringing the case clearly within §§ 1516-7. (e) The cases of insufficient description relate to lot or parcel, and not to the parts of one parcel which are occupied by different parties. Budd v. Bingham (18 Barb. 494), furnishes an illustration. The special circumstances which affect separate defenses or rights must be brought in by answer under §1516.
   By the Court.—Sedgwick, Ch. J.

The cases seem to show that in an action to recover the part of the premises that the complaint alleges were in the posseession of the appellant Levinus, it was proper to join the other defendants. There is enough to show that, as alleged, they were all jointly in possession, denying the plaintiff’s alleged right in a manner that gave her an action, if she had title as tenant in common. As the complaint would show a cause of action against the appellant for some part of the land, the demurrer was properly overruled as to the ground that stated that no cause was shown,

As to the point that the complaint does not describe with common certainty under § 1511, Code Civ. Pro., the part of the premises that the complaint seeks to recover from the appellant, my opinion is that it is not ground for demurrer. The land of which, in part, the appellant is in possession, is definitely described, but there is indefiniteness of that part. The complaint may be indefinite and uncertain, but the remedy is a motion to make it more definite and certain by amendment. I do not express any opinion as to whether or not, in this particular case, such a motion should be granted.

The other ground of demurrer is, that causes of action have been improperly united in this, that an alleged cause of action against the defendant to recover a portion of the property, is united with an alleged cause of action against the other defendants to recover another portion of the property, with which the present defendant has no connection.

The demurrer admits the facts stated in the complaint. It alleges that the other defendants are in possession of the whole of the land described in the complaint. For the purpose of this appeal, it will be considered that the allegations are sufficient under § 1502, that cLeclares that if the property is actually occupied, the occupant thereof must be made defendant. It also alleges that the present defendant is in possession of part of the property under the other defendants. There is no statement of the exact interest in the property that the present defendant claims. On the face of the complaint, the fact is as to the other defendants that they have a single unbroken possession of the whole as one parcel of land. There is no room for saying, that the complaint alleges that they hold one part by itself and another part by itself. If they do, in fact, that can be alleged by answer, and then the appropriate consequences will follow. Nor does it appear on the complaint that the present defendant individually holds a separate occupation of a part. According to the complaint he has a joint occupation of part with the other defendants. The complaint in substance avers that the other defendants are in occupation of the whole, and the defendant is in possession with them of a part. If the appellant’s position is correct, the plaintiff would be driven to an action against the appellant alone, and then another action against the other defendants. She ought to have an action against them jointly, it would be admitted at least as to the part occupied by the appellant, but when a subsequent action should be brought for the other part against the other defendants, it would be a serious question, as to whether under the rule against splitting a cause of action, it should not be held that the second alleged cause of action had been merged in the judgment first obtained.

It will be noticed that this is not the case of an owner being in occupation of a part of a single parcel of land, and his tenant being in possession of the other part, the landlord having parted with the occupation to him. By the complaint the owner has not left the occupation of any part. I therefore think, that this is not a case for the application of rules that are to be applied to several pieces of land held separately.

Viewing the cause of action as containing a charge of fort against the defendants, it may be considered that the actual tort, as to the whole land, is participated in by the present defendants’ joint action as to a part.

In my opinion section 447 applies to the case of the appellant asa party who claims an interest in the controversy adverse to the plaintiff.

The last ground of demurrer is therefore invalid.

Judgment affirmed, with costs.

Truax and O’Gorman, JJ., concur.