text:
    Robert A. Hollister, Appellant, v. James M. Sinclair and Hector Sinclair, Respondents, Impleaded with William J. Merritt and George H. Tilton, Defendants.

      Action in equity to restrain the prosecution of an action in the Oity Oourt of New Yorlc — action to review the exercise of discretion by another court — when it will not be entertained.

    In an action brought by one Robert A. Hollister to restrain the further prosecution o,f an action pending in the City Court of New York, it appeared that James M. Sinclair and another commenced an action in the City Court against Hollister and Messrs. Merritt and Tilton, all of whom were at one time partners under the firm name of William J. Merritt & Co., the action being founded upon a promissory note made by that firm. In that action Hollister interposed a separate answer, in which he alleged that he was not, at the time of the giving of the note, a member of the firm. The cause coming on for trial in the City Oourt, the court dismissed the complaint as to Hollister, and judgment was entered in accordance with such direction; but whether the judgment was entered by Sinclair’s attorneys or by the plaintiffs attorney was in dispute. An appeal was taken by the Sinclairs to the General Term of the Court of Common Pleas, where so much of the judgment as dismissed the complaint as to Hollister was reversed. Hollister then moved in the City Court for leave to serve a supplemental answer, setting up the judgment against Merritt and Tilton as a bar, which motion was denied, and the order denying it was affirmed on an appeal to the General Term of the Court of Common Picas.

      Held, that the question as to the denial of such motion having been reviewed by the only tribunal having authority to determine whether or not the discretion of the Special Term of the City Court had been properly exercised, it was disposed of for all timo; ^
    That it was not the duty of a court of equity, nor had it the power, to constitute itself, in effect, an appellate tribunal for the purpose of determining whether the discretion exercised by another tribunal was exercised in a manner agreeable to its conscience;
    That a court of equity should not interfere,

      Mrst, because the acts complained of were performed by a court having jurisdiction over the subject-matter of the action, and full authority for the procedure taken;

      Second, because, even if a court of equity had power to grant the relief asked for, its exercise in this case would not be in harmony with equitable principles.
    Appeal by the plaintiff, Robert A. Hollister, from a judgment of the Supreme Court in favor of the defendants, James M. Sinclair and another, entered in the office of the clerk of the county of New York on the 15th day of August, 1894, upon the decision of the court rendered after a trial at the New York Special Term dismissing the plaintiff’s complaint as to said defendants.

      Reginald H. Arnold, for the appellant.

      Artemas B. Smith and Arthur L. Henthorn, for the respondents.
   Parker, J.:

By means of this suit the plaintiff sought to obtain from a court of equity a judgment restraining the defendants Sinclair from the further prosecution of an action then pending in the City Court of New York against three defendants, Messrs. Merritt, Tilton and this plaintiff, all of whom were at one time partners under the firm name of William J. Merritt & Co.

The City Court action was founded upon a promissory note made by Wm. J. Merritt & Co., and Hollister, the plaintiff in the present action, interposed a separate answer, in which he alleged that he was not, at the time of the giving of the note, a member of the firm.

The cause coming on for trial, the court came to the conclusion that Hollister was not liable, and, therefore, dismissed the complaint as to him, directing judgment as against the other two defendants. The entry of a judgment, in accord with this direction of the court, furnishes the only excuse which the plaintiff has been able to present for the bringing of this suit. Hollister contends that the action of the attorneys for the Sinclairs in entering a judgment against Merritt and Tilton constituted an election on their part to hold them only — an election which was made voluntarily and without fraud or deceit practiced upon them by any one, the legal effect of which was to deprive the Sinclairs of the right theretofore existing of prosecuting Hollister upon that cause of action.

"Whether the judgment was in fact entered by the Sinclairs’ attorneys or by Hollister’s attorneys seems to be in dispute. By some inadvertence the findings of fact upon that subject are in conflict, as are the pleadings and affidavits which, the record contains. But we need not dwell upon this conflict, because, however that fact may have been determined, the judgment appealed from would not be affected.

After the entry of the judgment by some one, an aj>peal was taken by the plaintiffs Sinclair to the General Term of the Court of Common Bleas from so much of the judgment as dismissed the complaint as against defendant Hollister, resulting in its reversal.

Subsequently, the attorneys for Hollister and the Sinclairs agreed on a time for the retrial of the cause, but, prior to the day appointed, Hollister moved the court for leave to serve a supplemental answer 'setting up the judgment against Merritt and Tilton as a bar. Upon this motion, the parties seem to have brought to the attention of the court all of the facts, together with the evidence, in support of each side of the dispute as to whether Sinclairs’ or Hollister’s attorneys were responsible for the entry of the judgment.

The court denied the motion, whereupon an appeal was taken by Hollister to the General Term of the Court of Common Pleas, where the order was affirmed after a full consideration, as will appear from'the following extract which we take from the opinion of the court :

In the case before us, the facts disclosed were sufficient to invoke an exercise of the discretion of the court upon the question whether the appellant Hollister had waived his right to serve the proposed supplemental answer by agreeing to set the cause for trial on the issues raised by his original answer; upon the question whether, by delaying his motion more than two months after reversal of the judgment in his favor, he was not guilty of such laches as disentitled him to the relief; upon the question whether injustice would not be wrought by allowing such defense.’ ” (Sinclair v. Hollister, 41 N. Y. St. Repr. 352.)

The court had jurisdiction to pass upon the question whether a supplemental answer should be served, and the application for leave to serve was necessarily addressed to the judicial discretion of the court. In the performance of its duty, it determined to exercise that discretion against tlie application of Hollister, and when that question had been reviewed by the only tribunal having- authority to determine whether or not the discretion of the Special Term of the City Court was jnoperly exercised, it was disposed of for all time.

It is not the duty of a court of equity, nor has it the power, to constitute itself, in effect, an appellate tribunal for the purpose of determining whether the discretion of another court was exercised in a manner agreeable to its conscience.

Waiving further comment, under this head, on the procedure in the City Court case, we come to the motion made by the Sinclairs at a Special Term of the City Court for an order vacating the judgment against Merritt and Tilton, which was granted.

In the memorandum granting the motion, the court said: This is in furtherance of justice, works no hardship on either party and removes the technical objection the defendant Hollister raises.” From this order Hollister took an appeal to the General Term of the Court of Common Pleas, where it was affirmed. We do not understand Hollister to contend on this appeal that the vacation of that judgment was without authority on the part of the court. But, however that may be, the authority conferred by section 724 of the Code is sufficient to justify the order made. Hollister then made a motion for a perpetual stay of any further prosecution of the action against him, which was denied. And as he asserts that the motion was, “ perhaps, very properly denied by it, for the reason that such an application should more properly be made to this court,” we may pass it without further comment.

Indeed, there remains nothing further to do, except to express the conclusion at which we have arrived, namely, that the trial judge properly dismissed the complaint:

(1) .Because the acts, of which complaint is made, were performed by a court having jurisdiction over the subject-matter of the action, and full authority for the procedure taken.
(2) If the power of a court of equity to grant the relief asked for could be assumed, its exercise in this case would not be in harmony with equitable principles.

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Parker, J.:

license: Public Domain

text:
    James Everard, Plaintiff, v. The Mayor, Aldermen and Commonalty of the City of New York, Defendant.

      Contract to construct municipal works — arbitration clause therein — must be pleaded to be available- — conforming pleadings to the proof.

    The plaintiff and defendant entered into a contract by which the plaintiff agreed to do the work of laying water mains in a street in the city of Hew York, the defendant agreeing to pay therefor on a basis specified. The contract provided that the trench should be excavated two feet wider than the diameter of the pipes and one foot deeper than the bottom of the pipe.
    It also provided “that said engineer shall in all cases determine the amount or the quantity of the several kinds of work which are to be paid for under this contract, and he shall determine all questions in relation to said work and the construction thereof, * * * and his estimate and decision shall be final and conclusive.”
    Upon the trial of an action brought to recover for extra work done under the contract, it appeared that the plaintiff had been paid for excavation and filling on the basis specified, but that each piece of pipe laid was twelve feet from hub to hub, and that the pipes could not be laid and the joints made as required by the contract without a still further excavation at the points of connection.
    The defendant, for the purpose of establishing a defense, offered in evidence, under the plaintiff’s objection and exception, the engineer’s final certificate of the amount of work done under the contract. The effect of this certificate, as supplemented by the engineer’s testimony, was not to show that the plaintiff had not done the amount of work testified to by him, but to establish an arbitration by a person agreed upon in the contract between the parties.

      Held, that although such a certificate would be ordinarily conclusive upon the parties, in the absence of proof of corruption or bad faith, or misconduct on the part of the person designated, or palpable mistake appearing on the face of the certificate, still, that it was an affirmative defense which the defendant was bound to allege if it would make proof of it, and that the defendant, not having alleged such defense in its answer, its admission was error.
    After the court had directed a verdict in favor of the defendant, the defendant asked that the answer be amended by inserting an allegation setting forth the clause in the contract in respect to the certificate of the engineer, which motion was granted by the court.

      Held, that, as the granting of the motion was improper, it did not aid the defendant;
    That the general rule, that the court may so amend pleadings as to make them conform to the facts proved, was not applicable to this case, which was not one of mere variance or defect, but an attempt to allege a new defense.
    MotioN by tlie plaintiff, James Everard, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance, upon the verdict of a jury-in favor of the defendant rendered by direction of tlie court after a trial at the New York Circuit on the 3d day of November, 1891.

      Gratz Nathan, for the plaintiff.

      Francis M. Scott and Terence Farley, for the defendant.
   Parker, J.:

The plaintiff and the defendant entered into a contract in March, 1882, by which the plaintiff agreed to do the work of laying water mains in Jerome avenue, in the city of New York, and the defendant agreed to pay therefor on a basis specified.

The work was performed by the plaintiff in- due course and accepted by the superintendent of public works. Payments were made from time to time to the plaintiff down to and after the commencement of this action, the last payment being $1,119.71.

Plaintiff’s claim on the trial was that after the last payment tnere remained due to him $2,191.81, being for 337.4 cubic yards of rock excavation at $2.95 per yard ; 2,504.2 cubic yards of earth excavation at 33 cents per yard, and 2,843.1 cubic yards of filling at 13 cents per yard, such being the prices specified in the contract for such work.

The contract provided that the trench should be excavated two feet wider than the diameter of the pipe and one foot deeper than the bottom of the pipe, and that whenever in the opinion of the engineer it should be deemed necessary to place the pipe deeper the trench should be excavated to such a depth as the engineer should direct and the pipe laid accordingly. It ajDpears that the plaintiff has been paid for excavation and filling on that basis. But each piece of pipe laid was twelve feet from hub to hub, and, according to the testimony adduced in behalf of the plaintiff, the pipes could not be laid and the joints made as required by the contract without a still further excavation at the points of connection. The contract provided in effect that the spigot end of the pipe shall be inserted into the hub, * * and the space around the pipe shall be equalized so as to give as nearly as possible an equal space for the packing. The space between the pipe and hub shall be packed with clean sound hemp packing yarn, free from tar, far enough to leave the proper space for lead. Tlie remaining space shall then be filled by running it full of lead with a bead outside of the face of the hub large, enough to allow for caulking, so that when the joint is properly caulked the lead will be flush with the hub of the pipe. After the joint shall have been run with lead it shall be caulked by means, of proper tools so as to make a water-tight joint.” To do this work a space of eighteen inches beyond the hub on each side of the pipe was required. As the hub projected six inches beyond the line of the pipe an excavation of one foot on each side, in addition to that required by the contract for the entire length of the pipe, was needed. For this additional excavation and filling the plaintiff sought to recover.

The learned trial judge, however, held that plaintiff could'not recover, because of the making of -a final certificate by the engineer, fixing the quantities of rock and earth excavation and filling, under a provision of the contract, which reads as follows: “ To prevent all disputes and litigation it is further agreed, by and between the parties to this contract, that said engineer shall in all cases determine the amount or the quantity of the several kinds of work which are to be paid for under this contract, and he shall determine all questions in relation to said work and the construction thereof; and he shall in all cases decide every question which may arise relative to the execution of this contract on the part of the said contractor, and his estimate and decision shall be final and conclusive, and such estimate and decision, in case any question shall arise, shall be a condition precedent to the right of the party of the second part to receive any money under this agreement.”

The question which we are required to pass on is, whether the court erred in receiving the evidence upon which its decision was finally grounded.

As the evidence stood, when plaintiff rested, it appeared that the plaintiff had performed under and in pursuance of the contract an amount of work for which he was justly entitled to recover the amount claimed by him; and that he had requested the engineer to include the excess of work at the joints in his certificate, which he had refused to do.

The court, therefore, properly denied the defendant’s motion for a dismissal of the complaint. The defendant, for the purpose of establishing a defense, tlien offered in evidence the engineer’s final certificate of the amount of work done under the contract.

This the plaintiff objected to, but his objection was overruled and the paper was received, which led to the direction of a verdict against him. The effect of the certificate, supplemented by the engineer’s testimony, was not to show that plaintiff: had not done the amount of work testified to by him, but to establish an arbitration by a person agreed upon in- the contract between the parties. Such a certificate is ordinarily conclusive upon the parties in the absence of proof of corruption or bad faith, or misconduct on the part of the person designated, or palpable mistake appearing on the face of the certificate. (Byron v. Low, 109 N. Y. 291; Sweet v. Morrison, 116 id. 32; Phelan v. The Mayor, etc., 119 id. 86.)

It was an affirmative defense which the defendant was bound to allege if it would make proof of it, for it is a fundamental law of pleading and evidence that the proof must follow the allegations of the pleadings. This it did not do. Indeed, there was nothing whatever in the answer suggesting such a defense.

Its admission, therefore, was error. (Woolsey v. Trustees of Ellenville, 69 Hun, 489; Wright v. Delafield, 25 N. Y. 266; Day v. Town of New Lots, 107 id. 148; Reed v. McConnell, 133 id. 425.)

After the court liad directed a verdict in favor of the defendant, the learned counsel for the defendant, appreciating that the defense upon which he had succeeded was not to be found in the pleadings, asked that the answer be amended by inserting an allegation setting forth the clause in the contract in respect to the certificate of the engineer, and an allegation that the certificate which had been offered in evidence was given by the engineer.

While the motion-was granted by the trial court, it has not helped the situation, for the granting of it was error. The general rule that the court may so amend pleadings as to conform them to the facts proved is not applicable to this case.

It is not a case of mere variance or defect, but an attempt to amend a pleading after trial by alleging a defense not hinted at in it, and where the evidence upon which the motion was founded was received against the objection of the plaintiff.

If this could be done the useful object which pleadings now serve in our system of jurisprudence would not be achieved. Instead of advising an adversary of the issue tendered, it would be possible to recover on a cause of action entirely different from that alleged, or, as in this case, to succeed upon a defense when the plaintiff has had no warning that he would be called upon to meet it.

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

Van Brunt, P. J., and O’Brien, J., concurred

Judgment reversed, new trial granted, costs to appellant to abide event.


text:
    The Manhattan Railway Company, Plaintiff, v. The Mayor, Aldermen and Commonalty of the City of New York, Defendant.

      Elevated railway in a city street — expense involved in making alterations in its structure, by the building of an intersecting viaduct by a city, is a chwrge against the city.

    The city of Hew York, being the owner of the bed of Eighth avenue in said city, consented, in September, 1875, to the erection of the elevated railway and appurtenances and stations in such avenue, of which the Manhattan Railroad Company is now the owner.
    After many millions of dollars had been expended in the construction and in the payment of damages to abutting owners for injuries occasioned to their easements by the elevated railway, the Legislature authorized the city of New York to erect and construct over and along One Hundred and Fifty-fifth street, from the easterly line of St. Nicholas place to MacComb’s Dam bridge, an elevated iron roadway, viaduct or bridge. The grade of the viaduct, as established by the plans approved by the commissioner of public works of said city, crossed Eighth avenue at such a height as to intersect the upper portion of the elevated railway’s iron stations at that point. In order to permit the viaduct to pass over the stations so as not to seriously impair their usefulness or weaken the structure to the point of danger to the traveling public, extensive alterations became necessary on the part of the elevated railway involving a large expenditure. The elevated railway had the right to erect and maintain its stations where it did, and the viaduct was lawfully built where it was erected by the city under the authority of the Legislature.
    In an action brought by the elevated railway company against the city of New York to recover the expense necessarily involved in making the alterations necessitated by the building of the viaduct,

      Held, that the steps taken by the plaintiff and defendant, pursuant to legislative authority, leading up to the construction of the railway and its appurtenances, did not indicate that it was the intention of the parties that the elevated railway’s right to maintain the structure should he of such a conditional character that the Legislature might, by subsequent enactment, authorize the destruction of the whole or any part of it without just compensation;
    That the rights so acquired and the property thus created could not be defeated and destroyed for the benefit of the city of New York without compensation;
    That in accepting the franchise the elevated railway did not impliedly agree to alter these structures from time to time for the purpose of providing highways for the public at or near the same grade;
    That the rule that an abutting owner cannot recover damages because of the change of grade in a street, unless some of his rights in the nature of easements are interfered with, did not apply to the case at bar, and that the elevated railway was entitled to recover from the city the cost of making the changes in question.
    SubmissioN of a controversy upon, an agreed statement of. facts pursuant to section 1279 of the Code of Civil Procedure.

      Julien T. Davies and Alexander S. Lyman, for the plaintiff.

      Francis M. Scott, Theodore Connolly and Terence Farley, for the defendant.
   Parker, J.:

The defendant, being the owner of the bed of Eighth avenue, consented, in September, 1875, to the erection of the elevated railway, appurtenances and stations in that avenue, of which the plaintiff is the owner.

After many millions of dollars had been expended in its construction, and in the payment of damages to abutting owners for injuries occasioned to their easements of light, air and access, the Legislature, by chapter 576 of the Laws of 1887, authorized the defendant to erect and construct over and along One Hundred and Pifty-fifth .street, “ from the easterly line of St. Nicholas place to MacComb’s Dam bridge, an elevated iron roadway, viaduct or bridge.”

The gradient of the viaduct, as established by the plans approved by the commissioner of public works, crossed Eighth avenue at such a height as to intersect the upper portion of the plaintiffs iron stations at that point.

In order to permit the viaduct to pass over the stations so as not -to seriously impair their usefulness, or weaken the structure to the point of danger to tlie traveling public, extensive alterations became necessary, involving an expenditure of $9,960.

Between tlie defendant and tlie plaintiff there was a dispute as to which party should bear the expense. To avoid the delay in the construction of the viaduct, which a suit to determine that question would occasion, an agreement was made which permitted the wort to be done at once, leaving the question of liability for the determination of the court.

In this submission of the controversy it is agreed on the one hand that the plaintiff had the right to erect and maintain its stations where it did, and on the other hand that the viaduct was lawfully built where it was erected, under the authority of the statute already referred to.

The mere statement of the fact that structures, such as the plaintiff’s stations, lawfully erected, and with the full consent of the defendant, were by its act damaged, would seem to establish the right of the owner to compensation.

If the stations had been erected on plaintiff’s land instead of in a public street, and the defendant had truncated them with a viaduct, there would be no question of its right to compensation for the damage done.

The fact that its erection is upon and over a street of the’defendant, in view of the defendant’s consent given pursuant to legislative authority, and for the purpose of inducing the plaintiff to construct and operate an elevated railway for the convenience of the public, does not seem to present a situation different from what it would be if the stations were upon lands belonging to the plaintiff.

The steps taken by the plaintiff and the defendant, pursuant to legislative authority, leading up to tire construction of the railway and its appurtenances, do not indicate that it was the intention of any of the parties that the plaintiff’s right to maintain the structure should be of such a conditional character that the legislature might, by subsequent enactment, authorize the destruction of the whole or any part of it without just compensation.

It was not laid out and constructed, like the ordinary railroad, by a corporation created under the General Railroad Act (Chap. 140 of the Laws of. 1850), with little if any of its line definitely located, but with the machinery provided whereby it might acquire private property, and tlie right to cross public streets and the tracks of other railroads. Instead, its promoters presented a plan which was intended to prevent interference to any great extent with the public use of the streets, by constructing the railroad bed so far above the streets as to make it impossible for the structure to interfere with traffic on the avenue.

The general scheme proved acceptable to the defendant and the Legislature, the latter body providing the necessary safeguards for the construction of elevated railways, of which the plaintiffs is one. Under what is known as the Rapid Transit Act (Chap. 606, Laws of 18Y5) commissioners were appointed who subsequently organized the plaintiff, according to the terms of the statute authorizing their appointment. They prepared the articles of association and specified the routes and framed a general specification relating to the construction of supports, turnouts, stations, platforms, etc., under which all of the stations of the plaintiff, including the one in question, were located and constructed.

"With reference to that plan of constmction and under the guidance and direction of the commissioners, the plaintiff proceeded to and did expend large sums of money, resulting in the completion of the property in accord with the methods prescribed by legislative enactment, and under the direction of officials representing the defendant.

Certainly, the rights so acquired and the property thus created cannot be defeated and destroyed for the benefit of the defendant without compensation. (People v. O'Brien, 111 N. Y. 1.) And it would seem to be equally true of a part as of the whole.

The character of plaintiffs rights in the street, whereby it lawfully maintained all its structures on Eighth avenue, including the stations at One Hundred and Fifty-fifth street, has been repeatedly, in one form and another, the subject of judicial consideration.

In People ex rel. N. Y. El. R. R. Co. v. Commissioners (82 N. Y. 462) the question was whether the relator’s .elevated railroad structure, being located on the land of the city, was taxable as real estate. The court held that it was.

In White v. Manhattan El. Ry. Co. (139 N. Y. 19) the court had under consideration the legal effect of a consent (not under seal) by an abutting owner, the fee being in the municipality, to the erection of an elevated railroad in front of bis property. It was held to operate as an abandonment of the easement to tlie railroad, and in tlie course of tlie opinion tlie court said : “ The railroad company having procured the consent of the authorities of the city to the construction of the railroad in the street or square in question, upon the terms agreed upon, such company obtained an interest in and, to a certain extent, a title to the street for the purpose of the construction and operation of its railroad, which was in the nature of property, and which was sufficient to enable it to treat with abutting property owners in the character of one who had an interest in the servient estate.”

The legal effect of the consent by the defendant to the erection of plaintiff’s railroad was presented by a still different situation in Herzog v. N. Y. El. R. R. Co. (14 N. Y. Supp. 296; affd., 76 Hun, 486).

The suit was brought by Herzog, an abutting owner, for an injunction and damages, but it being made to appear that Herzog’s grantor, the city of New York, was the owner of the premises at. the time its consent was given to the construction of the elevated railroad, the complaint was dismissed, the court holding that the corporation having acted upon the consent of the city and built its road, “ the right to use such property so devoted for the railroad vested absolutely and irrevocably in the railroad corporation.”

The argument of the court fully sustains the proposition we have asserted in this case, to wit, that the plaintiff has such a property right in the elevated railroad and structure that the city cannot, physically interfere with it, even under the sanction of legislative authority, without responding for the direct damage' which such interference occasions to the plaintiff.

The Legislature has the power, from time to time, to authorize the construction of viaducts, bridges and other structures for the public use, which shall cross tlie plaintiff’s roadbed and appurtenances, but if such crossing shall necessarily put the plaintiff to' expense in the rebuilding, repairing or strengthening of its structure it may have compensation therefor.

With the first part of the last proposition the learned corporation counsel agrees, but the last he-insists is in conflict with certain authorities holding:

1. That a railroad must maintain its crossings so as to meet and provide for the necessities of an increased population or traffic; and,
2. That there is no liability on the part of a city arising from a change of grade.

The authorities in this State bearing upon his first position have their foundation in chapter 62 of the Laws of 1853, which authorizes the laying out of highways across the track of any railroad now laid, or which may hereafter be laid, without compensation to the corporation owning such railroad.

In Albany Northern R. R. Co. v. Brownell (24 N. Y. 345) this statute was before the court, and the objection that it was unconstitutional was considered and overruled, the position taken being that a railroad corporation acquires its right to construct its road upon or near the natural surface of the earth, subject to the dominant right of the State to cross its roadbed whenever the public necessity demands that new streets shall be opened.

And the requirement that the railroad corporation shall make the necessary excavations and embankments for taking the highway across the railroad is neither unlawful nor unreasonable, for the disturbance of the natural surface of the ground, making such work necessary, is the work of the railroad corporation itself.

The court, however, manifested a disposition not to extend the statute, but to construe it strictly. The contemplated highway which the suit was brought to enjoin was laid out across the tracks of the railroad and also across grounds acquired as sites for a station house, engine house, etc. As to the first, the court held that the action of the highway authorities was lawful, but as to the second unlawful.

In the course of the argument the court said that land purchased for stations “ does not fall within the policy which contemplated that the track of the railroad might be so used. The use of the land acquired by the railroad company for its track was such as admitted of a concurrent use for the purposes of a highway, but it was quite otherwise with that which was obtained for the engine house and other structures.”

It may be assumed that the Legislature of 1853, in enacting the statute to which we have referred, did not contemplate the passage of a viaduct over an elevated railroad, which was a form of railway construction at that time unknown, and hence the statute should not be regarded as applicable.

A still further reason for holding that it is not applicable may be found in the fact that the novelty of the elevated system led to legislation especially adapted to it, having for its purpose not only the protection of the capital invested, but the safe guarding of the public interests as well. And it is proper to assume, in the light of that legislation, that whatever burdens the State intended that the plaintiff should bear with the grant given to and accepted by it were enumerated.

Clearly it should not be held that in accepting the franchise the plaintiff impliedly agreed to alter its structures from time to time for the purpose of providing highways for the public, at or near the same grade, for an important part of the plan was to place all of the plaintiff’s structures so far above the street as to render it impossible that the public streets or those using them should come in contact with the elevated railroad.

But if this position were not well taken, and it could be held that the statute of 1853 is applicable to an elevated railroad, still, under the construction of the statute given in the Albany Northern Railroad Company's Case (supra) it would not be the duty of the plaintiff to bear the expense incurred in this case. The viaduct crossed plaintiff’s road at a point where it had lawfully constructed railroad stations, and the property interfered with, and which had to be altered and strengthened, were the railroad stations, and it was distinctly held in that case that the statute does not refer to property acquired by a railroad for station purposes.

The contention of the defendant, that it is not liable for the damages resulting to the plaintiff, because that which it did was merely to change the grade of One Hundred and Fifty-fifth street, seems to us unsupported by the facts.

It is undoubtedly the general rule that an abutting owner cannot recover damages because of a change of grade of a street unless some of his rights in the nature of easements, which constitute property, are interfered with, such as the right of ingress and egress. (Reining v. N. Y., L. & W. Ry. Co., 128 N. Y. 167.)

It would seem that that rule would not be applicable to this situation, even if it were the fact that the erection of the viaduct eon-stituted a mere change of grade, for'this is not a case of indirect damage occasioned by the raising of the grade of the street. Plaintiff’s property was actually taken. It stood in the way of the viaduct, the completion of which required the taking of some portion of it, and so it was taken. As it was a lawful structure the owner of it was entitled to compensation for the taking.

• But we find nothing in this record which supports the defendant’s assertion that this was a mere change of grade.

The statute did not authorize the commissioner of public works to change the grade, but to improve and regulate the use of One Hundred and Fifty-fifth street, “ and for that purpose to erect and construct over and along said street from the easterly line of St. Nicholas place to MacOomb’s Ham bridge, an elevated iron roadway, viaduct or bridge, with the necessary abutments, arches, over intersecting avenues and approaches thereto,” etc.

And the fact is that the grade of the street was not changed by the building of the viaduct or when it was built. The street remains, as before, open to the public, with its surface wholly unchanged. The viaduct constitutes an additional thoroughfare, built over and along One Hundred and Fifty-fifth street, supported by columns resting in the bed of the street. It sustains substantially the same relation to the street that the plaintiff’s railroad structure does to Eighth avenue.

The facts, therefore, do not swpport the defendamos contention, were it otherwise well grounded.

Judgment ordered for the plaintiff, as demanded in the submitted controversy, with costs.

Follett, J., concurred; Van Brunt, P. J., concurred in result.

Judgment ordered for plaintiff, with costs.


author:
Parker, J.:
      Van Brunt, P. J.:

text:
    Henri Jacquin, Respondent, v. Pauline Boutard and Others, Appellants.

      Contract for sale of goods on a commission — sales made daring its continuance deliverable thereafter — when the court will imply a promise not specified in the contract.

    Upon tlie trial of an action brought to recover damages resulting from an alleged breach of contract, it appeared that the plaintiff had been employed by the defendants’ firm to take entire charge of their business in the United States, the contract enumerating the duties to be performed by the plaintiff and providing that the defendants should place in the plaintiff’s charge all orders for goods payable in currency in the United States, and pay him for his services as agent a commission on all collections in currency on orders placed by salesmen employed directly by the defendants or by salesmen employed by the plaintiff. The parties entered upon the performance of their respective obligations and proceeded without misunderstanding until the defendants, in accordance with a stipulation in the contract, gave notice of its termination at the end of six months, and after giving such notice refused to send to the plaintiff samples and price lists of their goods necessary to enable the plaintiff’s salesmen to make sales. The defendants also withdrew the salesman from the United States who had theretofore represented them, and put in his place another one, directing him to sell no goods payable in currency in the United States, but to make all sales payable in francs.

      Held, that the plaintiff was entitled to commissions upon goods sold during the existence of the contract but deliverable afterwards;
    That he was entitled to sell defendants’ goods whether the defendants desired him to do so or not, so long as the contract remained in force;
    That although there was no express promise in the contract that the defendants would furnish the plaintiff with samples and price lists, yet such promise would be implied from the facts and circumstances surrounding the execution of the contract and the conduct of the parties thereunder.
    The defendants claimed that they were not bound to sell any specified amounts in currency, or to sell through the plaintiff at all, but that the contract simply provided that they should deliver through him all goods sold in currency in the United States.

      Held, that while the contract only provided for a commission to be paid to the plaintiff upon all goods sold in currency in the United States, there was no suggestion in it that the defendants reserved the right to sell goods in the United States in francs, and that they could not deprive the plaintiff of his right to compensation by directing their salesman to sell goods only in francs.
    Appeal by tlie defendants, Pauline Boutard and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in tbe office of tbe clerk of tbe comity of . New York on the 21st day of February, 1895, upon tbe verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered in said clerk’s office on tbe 19th day of February, 1895, denying tbe defendants’ motion for a new trial made upon tbe minutes.

      George A. Strong, for the appellants.

      Charles E. Hughes and Edward F. Dwight, for the resjiondent.
   Parker, J.:

Tbe contract created by the correspondence of the parties required tbe plaintiff to furnish at his own expense a suitable office in tbe city of New York bearing defendants’ firm name, with proper storage space, for ordinary office purposes and, also, for tbe display of samples of defendants’ fabrics and for the convenience of customers and salesmen; to take charge of all orders for delivery in tbe United States; to attend to all matters connected with the passage of merchandise through tbe custom bouse and its shipment and delivery to purchasers; to enforce conditions of sale; to advise defendants’ bankers as to terms; to control salesmen, whether appointed by plaintiff or defendants; to supervise credits, plaintiff having the right to reject orders by parties of doubtful responsibility, and undei-writing collections to the extent of his commissions; to facilitate by all means in plaintiff’s power the sale of defendants’ goods; and to devote to defendants’ American business the same care and watchfulness which defendants themselves would give to it were they established at New York. It provided that defendants should place in plaintiff’s charge all orders for goods payable in currency in the United States, and pay him for his services as agent a commission on all collections in currency on orders placed by salesmen employed directly by defendants of two and one-half per cent, and in case of orders placed by salesmen employed by plaintiff of five per cent, with a reduction of one-half per cent in each case if the yearly sales amounted to more than $150,000.

Upon the strength of this contract, as modified by subsequent cor respondence between the parties, the plaintiff employed on his own account a salesman, to whom he paid $100 per'month, and in addition a fixed commission on goods sold by him. The parties entered upon the performance of their respective obligations shortly after an agreement liad been reached, and proceeded without any misunderstanding or question until July 4, 1892, when the defendants, in accordance with the stipulation in the contract, gave notice of its termination at the end of six months.

Having given this notice, they refused to send samples to the plaintiff, which were necessary in order to enable the salesman employed by him to make sales of defendants’ goods. They also withdrew the salesman from the United States who had theretofore represented them, and sent in his place another salesman, whom they instructed not to sell any goods payable in currency in the United States, but instead to make all sales payable in francs. By this means they sought to terminate, so far as they were concerned, all obligations on their part under this contract, while the plaintiff necessarily remained bound under it to provide an office and a storage place for the reception of their goods for a further period of six months. And if their contention as to the construction which should be put upon this contract be well founded, then the contract under which plaintiff was bound to, and did incur expense in a substantial amount, did not place upon the defendants a corresponding obligation to afford the plaintiff an opportunity to earn the commissions by which this expense could be borne and his own services compensated for.

The defendants’ position, as stated in the brief of their counsel, is, that “ defendants not only did not agree to sell any specified amount in currency, but they did not bind themselves to sell at all through plaintiff.

“ The contract is simply that they will deliver through him all goods sold in currency in the United States. They remain on the face of the contract free, and they clearly intended to remain free, to sell in currency or in francs, or not to sell at all, as they might thereafter find to their advantage.”

It may be observed, in the first place, that while the contract only provides for a commission to be paid to the plaintiff upon all goods sold in currency in the United States, there is no suggestion in it, or in any of the correspondence between these parties, that the defendants reserved the right, or intended, to sell goods in the United States in francs. Nor does it appear that defendants did soli any goods in francs, from tlie time of the making of the contract down to July, 1892, when they notified plaintiff that they elected to terminate the contract on the 1st day of January, 1893. Then, for the first time, defendants suggested the position which they now insist upon, that having agreed to pay plaintiff for his services and expenses only by commissions upon goods sold in currency, they had the right to deprive him of all reimbursement and compensation by directing their salesman to sell in francs, and refusing the plaintiff samples, so that he and the salesman employed by him could not sell at all.

The language of the contract and the correspondence between the parties subsequent thereto and their conduct thereunder, satisfies us that the parties did not so understand it at the time of the making of the contract. That it was a mere afterthought of the defendants, born of a desire to relieve themselves from the payment of the commissions which performance of the contract for the ensuing six months, as theretofore, would entail.

The questions involved, therefore, lead to the ultimate determination whether or not this contract was so drawn as to continue in full force as to the plaintiff without any corresponding obligation or duty on the part of the defendants.

The first question which suggests itself is whether the plaintiff would be entitled to commissions upon goods sold during the life of the contract, but deliverable afterwards. For it is the fact that the character of the business done under the contract was such that a large part of the sales made in the fall of 1892 would, in the ordinary course of business, not have been delivered until after January 1, 1893. While this question relates to the measure of damages, it is, nevertheless, a substantial one, for unless the plaintiff is entitled to recover compensation for goods, sold pi’ior, but delivered subsequently, to the expiration of the contract, the judgment must be reversed, because of the refusal of the court to charge a request upon that subject preferred by the counsel for the defendants.

The compensation to be paid to the plaintiff for keeping an office, putting defendants’ firm name upon the door, supervising credits, underwriting his commissions, directing the salesmen and superintending the delivery of the goods was a commission on the net sums paid in currency.

It is evident that under the contract the plaintiff’s commissions were intended to be calculated according to the year’s business, and payment thereof was intended to be made when the net sum should-be paid in currency. If this be not the proper construction, then it is apparent that no matter how long the contract may have continued plaintiff would have had six months’ work without pay, during which time he would necessarily be under a substantial expense, and, in addition, be liable over to the defendants to the extent of his commissions upon any orders taken for which payment should not be made by the purchasers. For it will be remembered that it was the duty of the plaintiff under the contract to supervise credits, and to reject orders if not satisfied with the purchasers’ responsibility, the effect of a mistake upon him being not only the loss of commissions, but in addition a liability to defendants in a sum equal to his commissions on such orders. As this duty of supervision continued under the contract until its termination, it is clear that the liability which guaranteed its faithful performance likewise remained, and this liability, as we have observed, was in each case equivalent to the stipulated commissions. It would seem to follow that if plaintiff had taken any orders, or defendants had sold goods deliverable in the United States during that period, the plaintiff would have been entitled to compensation. It may be observed in passing that this conclusion would sustain the decision of the trial court in holding that the defendants broke the contract, for their representative Pike, while endeavoring to execute their commands to sell only in francs, failed as to two customers who refused to take the goods except on a delivery in the United States. These deliveries were not made through plaintiff, as the defendants were bound to do, even according to their own construction of the contract, and knowledge of such deliveries was kept from the plaintiff. But we shall not dwell upon this, for, unless the defendants were bound to furnish to the plaintiff samples for the use of himself and his salesman to enable them to make sales deliverable in the United States, the judgment must be reversed because of the refusal of the court to charge certain requests preferred by the defendants.

Having reached the conclusion that'the plaintiff would have been entitled to recover commissions had the defendants furnished him with the opportunity to make sales as they did previous to the notice of termination, we shall now inquire whether plaintiff was entitled, as a matter of right under the contract, to make sales whether defendants desired him to do so or not. And in speaking of the plaintiff in that connection, we include the salesman acting under his supervision. It is defendants’ contention that, under the contract, they had the right, at any time during the life of it, to stop plaintiff from selling goods in currency. In other words, that while the contract concededly bound plaintiff, until its termination, to keep an office and do all the other things specified therein, including the rendition of such personal services as should be necessary according to defendants’ letter to “ facilitate, by all means in your power, the sale of our goods. * * * In short, we expect you to devote to our American business the same care and the same watchfulness which we ourselves would give to it if we were established in New Y orb,” nevertheless, defendants could prevent the plaintiff from taking any orders deliverable in the United States. And this, notwithstanding the fact that the entire scheme of the contract seems to have been to constitute plaintiff the defendants’ agent in the United States for the sale of their goods, without any intimation therein that it was defendants’ purpose to make sales within such territory through any other channel or in any different manner. A test of this contention is furnished by the inquiry: Suppose plaintiff had taken orders upon proper terms during the period in question, notwithstanding the defendants’ efforts to deprive him of the means of doing so, would he have been entitled to insist upon the acceptance of such orders, or upon the payment of commissions as though they had been accepted ? This inquiry has sufficient answer in Taylor v. Morgan'\s Sons Company (124 N. Y. 184). In that case, plaintiff was employed as a traveling salesman to sell defendants’ sapolio in specified States. He was required to travel over his route six times a year, to handle no goods in conflict with theirs, to, conduct himself and the business in a manner to their general satisfaction, for which they agreed to pay commissions “ upon all orders accepted from Iona fide purchasers.” After his discharge, he brought an action to recover his commissions, and was allowed by the referee commissions upon orders from responsible parties, which the defendants did not accept. In sustaining the judgment, the court said: “We incline to the view that it was tlie duty of the defendants to accept all orders presented by the plaintiff from tona fide purchasers, which were made in-accordance with the provisions of the contract, and that they did not have the right, without cause, to arbitrarily refuse to accept such orders. Such a construction of the contract would require the plaintiff to travel over the territory mentioned at his own expense, six times a year, with a right on the part of the defendants to reject every order presented by him, and to thus deprive him of any commissions.”

So, under this contract plaintiff assumed duties of considerable-magnitude, for which he was to be compensated by commissions-upon sales made during its lifetime; certainly defendants cannot-insist upon a performance of those duties, and yet arbitrarily and capriciously refuse to plaintiff an opportunity for compensation by placing orders.

It seems a fair and reasonable construction of the contract that,, subject to the reasonable requirements of defendants’ business, plaintiff, in person or through his salesman, was entitled to make-sales so long as the contract continued in full force. If that be sound then surely it cannot be said that the contract did not in any way bind defendants to make any part of their sales in currency. For aside from the fact that the contract in no wise suggested that it-was the purpose of the defendants during its existence to make sales in any other way or manner, they were bound to accept such orders-as the plaintiff should obtain personally, or through his salesman,, and to such extent, at least, they were obligated to continue the business of making sales deliverable in the United States, through, plaintiff’s agency.

We now come to the question whether defendants during the period in question had the legal right, under the contract, to withhold from the plaintiff the samples and price lists as they did do, thus rendering it impossible for him to continue the business in the United States, and secure compensation for the services rendered and expenses incurred by him. We have said that they could not', have refused to accept orders, had plaintiff been able to obtain them on proper terms, and the inquiry now is, whether under this contract they could do indirectly what they could not do directly? The claim of the defendants is that there is no express provision of -the contract requiring them to furnish samples and price lists, and that they cannot be charged with a breach of the contract except by holding that such a provision should be implied, and they deny the authority of the court to make such implication in this case. Preliminarily to a consideration of the legal question involved, we should ascertain, if possible, from the contract, considered in the light of the facts and circumstances surrounding its making, and the subsequent acts of practical construction put upon it by the parties, whether it was their intention that the defendants should furnish to the plaintiff samples and price lists for the purpose of carrying on the business which occasioned the making of the contract. It is undisputed- that both parties knew that it was an utter impossibility for the plaintiff to accomplish the object, which both parties had in view, unless he was furnished from time to time with samples and price lists of the goods which it was the defendants’ aim to sell in the United States. And it is difficult to conceive that either one of the parties could have purposely intended keeping such a provision out of the contract. Undoubtedly the defendants then intended to furnish them, and of course the plaintiff could not conceive that the defendants could have any purpose in withholding them at any time. While the express provision on this subject was not contained in the informal correspondence, which constitutes the ■contract, still, a consideration of the language employed and the conduct of the parties, indicates to us that it was their intent, at the time of its making, to bind the defendants to furnish the plaintiff with samples and price lists, so that “‘he might facilitate their ■sales ’ and have full power to ‘ successfully conduct their American business.’ ”

The very first letter provides that the plaintiff should preserve the defendants’ collection of samples, and the circular sent to customers, as soon as the business was begun, informed them that they would find samples at plaintiff’s address.

At the very beginning of the business, and on March 10, 1891, plaintiff, in writing to the defendants, said : “We will keep you as much as possible informed of everything happening in the market, and, if necessary, will cable you when we think it worth while. I hope that the cases of Henrietta sample pieces are on the road.” 'Ten days later the defendants replied: We “ will neglect no occasion to extend tlie business conducted through your intermediary. ¥e are able to put en route all the samples which you asked, and hope that they will reach you in time to obtain orders.”

Other letters, announcing the sending of samples and patterns with the promise of more to follow, were sent to the plaintiff, and it is conceded that, until the notice to terminate the contract was given, all the samples necessary for the conduct of the business were furnished..

In a letter of April 22, 1892, the defendants, after informing the plaintiff that he was considered responsible for the acts of Bonllon. as well as for those of Kennedy, continued: “You will understand,, perfectly, the motive which actuates us. Desiring to give you all authority for successfully conducting our American business, we cannot delegate any part of it to whoever it may be.” Indeed, the defendants stipulated upon the trial that, from the making of the contract down to the notice of termination, the defendants sent to the plaintiff samples of each season’s fabrics regularly and in due course. Thus, it appears from the acts of the parties that they understood it to be the duty of the defendants to furnish the plaintiff with samples and price lists. Now, it has been often held that the practical construction put upon a contract by the parties to it is sometimes almost conclusive as to its meaning, for there is no surer way to find out what parties meant than to see what they have done. (Insurance Company v. Dutcher, 95 U. S. 273; Woolsey v. Funke, 121 N. Y. 92; Nicoll v. Sands, 131 id. 24.)

These authorities are not of- course controlling in this case, for the contract contains no provision whatever on the subject now under discussion, but they serve to show the importance which the courts justly attach to the conduct of parties under a contract, and are serviceable, as aids, in determining whether the parties intended to agree that samples and juice lists should be furnished by the defendants, although they did not express it in the contract, and whether it was so understood by both of them. And thus considering the conduct of the parties under this contract, and the contract itself in the light of the facts and circumstances surrounding its making, we reach the conclusion that the parties understood that it was a part of their agreement that the defendants should furnish to the plaintiff samples and price lists, and that its failure to appear in the contract was not an intentional omission, but a mere inadvertence. Tlie evidence is of such a character as to supjiort such a finding of fact, and it must be assumed in the disposition of this ease that it was so found by the trial court. And this is so, because, while there was a jury, both parties requested the direction of a verdict, which left the court free to decide all questions of fact. It would .seem to follow that in such a situation the court should imply a promise to furnish samples and price lists. While the courts hesitate to imply promises in formal contracts, it will be done where otherwise the manifest intention of the parties will be defeated. Reference will be made to a few of the cases in which the courts have implied promises by one of the parties to the contract. In New England Iron Company v. Gilbert Elevated R. R. Company (91 N. Y. 153) the plaintiff agreed to perform the labor and furnish the material necessary to the erection of an elevated railway, .and ,to commence its erection at a point to be named by the defendant, and at such time as the president should notify it that defendant’s capital stock was subscribed for. The contract did not provide that defendant should give the notice required to set plaintiff in motion. The court held that the promise to give the notice on the part of the defendant should be implied. In Mansfield v. N. Y. C. & H. R. R. R. Co. (102 N. Y. 205) the plaintiff agreed to construct for the defendant the superstructure of an elevator upon foundations to be prepared by the defendant, the work to be commenced within five days after the defendant’s engineer should notify plaintiff to proceed with the work. When the notice was given the foundations were not completed. The contract, it appears, did not contain a covenant on the part of the defendant that it would have the foundations in condition to enable the contractors to go on with their work before giving notice, but the court held that such a covenant was clearly to be implied. In the course of the opinion the court said : The meaning of a contract is to be gathered from a consideration of all of its provisions, and the inferences naturally derivable therefrom, as to the intent and object of the parties in making it and the result which they intended to accomplish by its performance. It was said by Allen, J., in Booth v. Cleveland Mill Co. (74 N. Y. 15, 21): There is no particular formula of words or technical phraseology necessary to the creation of an express obligation to do or forbear to do a particular thing or perform a specified act. If from the text of an agreement and the language of the parties, either in the body of the instrument or in the recital or references, there is manifested a clear intention that the parties shall do certain acts, courts will infer a covenant in the case of a sealed instrument, or a promise if the instrument is unsealed, for non-performance of which an action of covenant or assumpsit will lie.’ ”

In the recent case of Genet v. D. & H. C. Co. (136 N. Y. 593) a question was presented under entirely different circumstances from those now before the court, but the court implied a promise that the defendant would not “ willfully or negligently incapacitate itself” from taking out more than the minimum quantity of coal during the year. The argument of the court upon this subject contains the following: “And now the defendant claims that the contract is unbroken so long as it pays the minimum royalty It is abundantly disclosed that the plaintiff is not getting, can never get, what she would have received, what she expected to receive, what was the chief inducement to the contract, what the lessee expected to pay, and what in the ordinary course of business it would have ¡raid, solely because of the negligent destruction of the mine. The loss has come from a cause which both parties assumed would not occur, and against which, for that reason, the lessor took no express covenant, and it is because the lessee did not expressly covenant that it would not willfully or negligently incapacitate itself from taking out more than the minimum quantity of coal per year that it grounds its contention. There is no such express stipulation, but I think one is to be implied, and fairly and justly may be found interwoven with the terms expressed and growing out of their scope and meaning.”

The court cited with approval, and by way of illustrating its argument, the ease of M’Intyre v. Belcher (14 C. B. Rep. [N. S.] 654). The language of the court in considering the M'Intyre case so accurately describes the situation presented by this case that we quote it.

In M'Intyre’s case “ the plaintiff sold out his business as a surgeon, getting in return a cash payment for his drugs and instruments of about seventeen pounds, but taking an agreement that the purchaser would account for and pay over to the plaintiff the one-fourth part of the receipts of the business for four years, if he should live so long, provided that their annual aggregate should reach three hundred pounds. The defendant during the third year chose to abandon the business and the plaintiff sued. There was no express agreement that the purchaser would continue the business, or that if he did, that its annual proceeds should reach three hundred pounds. The court held that a covenant was implied that the defendant would not willfully incapaciate himself from carrying on the business. Of course, the plaintiff took the risk, beyond- the payment in cash, of the defendant’s business capacity, of his tact and skill, of his industry and ability to gather in more tlian the annual three hundred pounds, but the risk he did no.t take ivas of the willful or negligent abandonment by the defendant of any effort to do business at all, so that the earning of profits was rendered utterly impossible.”

Another case, more clearly analogous, may be found in Turner v. Goldsmith (L. R., 1 Q. B. [1891] 544). There defendant, a shin, manufacturer, by contract in writing, agreed to employ plaintiff to serve as canvasser and traveler on the terms: First, that the agency should be terminable by either party at the end of five years by notice; second, that the plaintiff should do liis utmost to obtain orders for the goods manufactured by the defendant as should, from time to- time, be furnished or submitted by sample or pattern, plaintiff’s compensation to consist of a commission upon receipts from sales. Two years thereafter defendant’s manufactory was burned down. .Plaintiff brought his action for breach of contract. It was defendant’s 'position that he was not bound to continue business, and that in any event the agreement did not contain a stipulation that he should furnish samples, and, therefore, there was no obligation on his part to do what was necessary to enable plaintiff to earn his commission. To this contention the court responded : “ The answer to that is that the company would not be employing the plaintiff, within the meaning of the agreement, unless they supplied him with samples to a reasonable extent.”

Plaintiff’s recovery was, therefore, sustained. It is our conclusion that the court should imply a promise on the part of the defendants to furnish the plaintiff with the necessary samples and price lists, and it follows that the judgment should stand.

Judgment affirmed, with costs.

Van Brunt, P. J.:

As tlie courts have adopted tbe rule of supplying supposed omissions in contracts I concur.

Follett, J., concurred.

Judgment affirmed, with costs.


text:
    The Manhattan Life Insurance Company, Respondent, v. Morris Alexander, Appellant, Impleaded with Jacob P. Solomon, Defendant.

      Surety upon a bond— liable when the bond is signed in his neme by another person, if acknoioledged by him — claim that an issue is not embraced in pleadings, when made too late — when an inference may be drawn from the non-appearance of a subsei'ibing witness.

    Upon the trial of an action brought to recover upon a bond purporting to have been executed by Morris Alexander, as surety for one Solomon, who had been appointed an insurance solicitor for the plaintiff, the complaint alleged the execution and delivery of the bond by Alexander. The plaintiff understood that Alexander claimed not to have signed the bond personally, and evidence was offered for the purpose of establishing, not that Alexander affixed his signature to the bond, but that, with knowledge that a signature purporting to be his had been affixed, he had represented and acknowledged such signature to be his.
    The court was asked to charge that “if the jury believe that the defendant (Alexander) did not personally execute the bond he is entitled to a verdict,” the defendant alleging that to be the issue presented by the pleadings.

      Held, that such a position was based upon too narrow a view of the complaint;
    That, even if the facts were as the plaintiff attempted to prove them to be, there was an execution of the bond by Alexander, although the signature might have been written by some one else;
    That the court properly presented to the jury the issue which the parties had tried without a suggestion that it was not embraced in the pleadings;
    That there was nothing in the request to apprise the court of the defendant’s contention, that under the pleadings there could be no recovery in the absence of proof that Alexander had personally affixed his signature to the bond.
    The court refused to charge that the jury should take into consideration the failure of the plaintiff to call the subscribing witness to the bond, and that no excuse had been given for not calling him as a witness. It appeared that the plaintiff had subpoenaed such witness, and the court had issued an attachment to compel his attendance.

      Held, that the court properly charged the jury that no inference could be drawn against the plaintiff because of the absence of such witness, for the reason that the plaintiff was not responsible for his non-appearance.

      Appeal by the defendant, Morris Alexander, from a judgment of the Supreme Court in iavor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of January, 1895, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 23d day of January, 1895, denying the defendant’s . motion for a new trial made upon the minutes.

      Henry A. Forster and John A. Weekes, Jr., for the appellant.

      Artemas H. Holmes, for the respondent.
   Parker, J.:

The recovery which the defendant Alexander seeks to have reviewed was had upon a bond purporting to be executed by him as surety for Jacob P. Solomon, who had been appointed an insurance solicitor for the plaintiff.

Upon this, the second trial of the action, the plaintiff understood that the defendant Alexander claimed not to have signed the bond personally, and the evidence offered by it was for the purpose of establishing, not that Alexander affixed his signature to the bond, but that he, with full knowledge that a signature purporting to be his had been affixed, represented and acknowledged the signature to be his, and was, therefore, bound by it. Evidence to the contrary was adduced on behalf of the defendant Alexander, and thus was presented a question for the jury which the trial court carefully and properly submitted to them, resulting in a verdict in favor of the plaintiff.

The appellant now contends that the trial court erred in refusing to charge the jury that “ if the jury believe that the defendant did not personally execute the bond he is entitled to a verdict,” because, as he alleges, that was the issue presented by the pleadings. This position is based upon too narrow a view of the complaint, and assumes that under it there could be no recovery without proving that the defendant Alexander personally wrote his signature upon the bond. But the complaint does not so allege. It charges the execution and delivery of the bond by the defendant Alexander. And if the fact be as plaintiff attempted to prove and the jury have found, that the defendant Alexander represented and duly acknowledged tbe signature on tbe bond to be his signature, there was an execution of the bond by him, although the signature may have been written by some one else.

But there is a still further answer to the appellant’s contention. The plaintiff did not attempt to prove that Alexander wrote the signature personally, but that he represented it to be his,, and the evidence tending in that direction was received without objection. Further than that the defendant Alexander attempted to meet this issue When the court came to submit the case to the jury it properly presented to them the issue which the parties had tried without a suggestion that it was not embraced in the pleadings. Then it was too late to present the point, for the first time, had defendant attempted it. But he did not attempt it. There was nothing in the above-quoted request to apprise the court that the defendant Alexander’s contention was that under the pleadings there could be no recovery in the absence of proof that he personally affixed his signature to the bond. It suggested to the court simply that it was his view of the law that he was not liable unless he wrote the signature. Under the facts before the court, this was not a sound proposition, and its refusal to charge as requested was not error.

The appellant complains of the refusal of the court to charge that the jury should take into consideration the failure of the plaintiff to call the subscribing witness Steinitz, and that no excuse had been given for not calling him. But this contention is without force because it appears that the plaintiff did subpoena him, and the court issued an attachment against him to compel his attendance. The court, therefore, properly said that no inference could be drawn against the plaintiff because of his absence for the reason that “ the plaintiff is not responsible for his non-appearance at this time.”

We have carefully considered the appellant’s argument intended to persuade us that the verdict is against the weight of evidence; but shall content ourselves with saying that we not only do not agree with him, but we cannot see how the jury could have reached a different conclusion.

The judgment should be affirmed, with costs.

Van Brunt, P. J., and O’Brien, J., concurred.

Judgment affirmed, with costs.


text:
    The People of the State of New York ex rel. William Reilly, Relator, v. Avery D. Andrews and Others, Commissioners, Composing the Board of Police Commissioners of the Police Department of the City of New York, Respondents.

      Patrolman on New York police force — after what term of service lvis retirement is not a matter of right.

    The relator, a policeman who had been on the New York city police force for twenty years, and against whom no charges were pending, petitioned the board of police commissioners of said city to be retired from the police force under the provisions of section 307 of chapter 410 of the Laws of 1882, as amended by section 2 of chapter 864 of the Laws of 1885, which provides that “ Any member of the police force who has or shall have performed duty therein for a period of twenty years or upwards, upon his own application in writing or upon a certificate of the board of surgeons, showing that such member is permanently disabled, physically or mentally, so as to be unfit for duty, or who shall have reached the age of sixty years, shall, by resolution adopted by a majority vote of the full board, be relieved and dismissed from said force and service and placed on the roll of the police pension fund.” The petition was denied.

      Held,, that the relator was not entitled, as a matter of right, to be retired.
    It appeared that the relator first made application for retirement about December 18, 1894, and that about April 11, 1895, he presented a petition to the board of police commissioners in which he alleged, among other things, that "he had been for several years a great sufferer from inflammatory rheumatism, and that he was at the time suffering from a permanent disability in one of his feet, by reason of which he was considerably disabled. On the day that the petition was presented to the board of police commissioners action was taken thereon, by which it was referred to the board of surgeons for a report; five days later the board of surgeons made a report in which it was stated that they found the relator fit to perform duty. Subsequently, the board of police commissioners considered the application of the relator, and a resolution of one of the commissioners, that the relator’s request be granted and that he be retired, was decided in the negative.

      Held, that the commissioners, in so doing, committed no legal error.
    CeRtiobaRI issued out of tlie Supreme Court and attested on the 3d day of May, 1895, directed to James J. Martin, Michael C. Ker-win, Charles H. Murray and Avery D. Andrews, commissioners, composing the board of police of thé police department of the city of New York, commanding them to certify and return to the office of the clerk of the county of New York all their actions, decisions and. proceedings relating to the application of William Reilly and tlieir refusal to grant the same.
    The petition in this proceeding alleged that William Reilly was a citizen of the United States and a resident of the city and comity of New York; that he was a patrolman attached to the thirty-second police precinct in said city; that on the 19th day of December, 1894, he made an application in writing to the board of police commissioners of the police department of the city of New York to be relieved and dismissed from the police force and service and to be placed upon the roll of the police pension fund and to be awarded and granted to be paid an annual pension during his lifetime, as provided by section 307 of chapter 410 of the Laws of 1882, and the several acts amendatory thereof and supplemental thereto. That the said board arbitrarily refused to grant the application of the petitioner, no reason for said refusal being given.
    The petitioner further alleged that he had served faithfully on the police force of the city of New York for a period of more than twenty -years last past, and that the police board was bound to grant his application, and that said board was not justified in refusing to grant the same, and did not, in refusing to grant said application, act reasonably and fairly towards the petitioner.

      Louis J. Grant, for the relator.

      Francis M. Scott and Cornelius F. Collins, for the respondents.
   Parker, J.:

It is the contention of the relator that a policeman who has been on the force twenty years, and who, at the time of his application for retirement, has no charges pending against him, is, as a matter of right, entitled to be retired. His claim is based upon section 307 of the Consolidation Act, as amended by section 2 of chapter 3G4 of the Laws of 1885, which reads as follows: Any member of the police force who has, or shall have, performed duty therein for a period of twenty years or upwards, upon his own application in writing, or upon a certificate of the board of su'rgeons, showing that such member is permanently disabled, physically or mentally, so as to be unfit for duty, or who shall have reached the age of sixty years, shall, by resolution, adopted by a majority vote of the full board, be relieved and dismissed from said force and service and placed on the roll of the jiolice pension fund.”

In view of the decisions in People ex rel. Bolster v. French (46 Hun, 232) and People ex rel. Brady v. Martin (145 N. Y. 253), we regard this question as settled adversely to the relator. In both cases the statute, upon which the relator relies, was considered by the court. In Bolster’s case the court held that the statute does not entitle a policeman to be retired unless he can obtain the favorable vote of a majority of the board sustaining his application; that the law does not declare that the board shall retire him, or direct that the commissioners, or a majority of them, shall vote in favor of his retirement, and, therefore, it must be construed as investing the members of the board with discretion to vote for or against the application, as the situation may seem to require.

Both the decision and the reasoning of the court in Bolster’s case were approved in Brady’s case. In the latter case the statute was carefully considered, and the conclusion reached that “ the board has been invested with authority to retire the applicant by a majority vote of the full board, but as no direction has been given requiring the members to vote for the adoption of the resolution, it follows that they must be at liberty to vote in favor of or against such application.”

It is true that the court, in considering the facts of that particular case, used language, which, if considered independently of the main argument, would tend to convey the impression that, in the absence of pending charges of misconduct, it would- appear to be the duty of the board to grant such an application. But, in that case, charges of misconduct had been preferred against the relator, at or about the time of his application for retirement, and they were acted upon, and relator dismissed from the force before his application for retirement was considered, and the discussion referred to related wholly to that situation and followed that part of the opinion which considered and construed the statute, and which resulted in the conclusion that the members of the board were invested with the discretion to vote in favor of or against such an application.

The legislative construction given by chapter 569 of the Laws of 1895, known as the bi-partisan police bill, amending section 307 of the Consolidation Act, is in accord with that of the decisions to which we have referred. Section 6 re-enacts the provision above quoted, authorizing the retirement of a member of the police force who has performed duty for a period of twenty years or upwards, upon his own application, by resolution adopted by a majority vote of the full board. And it also contains the further provision, and any member of the police force who has or shall have performed duty therein for a period of twenty-five years or towards * * * upon his own application in writing, provided there are no charges against him pending, must be relieved and dismissed from said force and service by the board and placed on the roll of the police pension fund.” If it was the understanding that the statute in existence, and which the Legislature re-enacted, compelled the retirement of any policeman requesting it, against whom no charges were pending, after twenty years’ service, then, surely, the provision quoted was superfluous.

It appears by the return that the relator first made application for retirement about the 13th day of December, 1894, and that later, and about the 11th day of April, 1895, he presented a petition to the respondents, in which he said, among other things, that he had been for several years a great sufferer from inflammatory rheumatism, and that he was at the time suffering from a permanent disability in one of his feet, by reason of which he was considerably disabled.

On the day that the petition was presented to the board action was taken thereon, by which it was referred to the board of surgeons for report. Five days later the board of surgeons made a report to the board of police commissioners, in which it was stated that the surgeons found the relator fit to perform police duty. A copy of this report was at once forwarded to the attorney for the relator who addressed a further communication to the board of police commissioners, asking for immediate action on the application of his client.

The board of police commissioners, on the nineteenth day of April, considered the application, and a resolution of one of the commissioners, that the relator’s request be granted and he be retired, was decided in the negative, one commissioner voting in favor of its adoption and three against it.

Apparently, it was the view of a majority of the commissioners that, inasmuch as the relator was in a physical condition to render efficient service, lie should not be retired on a pension, but compelled to earn the compensation which he should receive from the city. In view of the construction which has been given to the statute, it cannot be said that the commissioners committed legal error.

The writ should be dismissed, with costs.

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

Writ dismissed, with costs.


text:
    The People of the State of New York, Plaintiff, v. The American Steam Boiler Insurance Company of New York City, Defendant. In the Matter of the Claim of the Gendron Iron Wheel Company, Appellant. Henry S. Ward, as Receiver, etc., Respondent.

      Policy of insurance — limitation as to the time within which cm action can he brought — from what date computed.

    A policy of insurance issued by a steam boiler insurance company contained a clause providing that “no suit or proceeding shall be brought to recover any sum for loss of property arising under this policy unless commenced within one year from the date of the explosion or accident, nor for loss arising from injury to person * * * unless commenced within three years from said date * * * and in case a suit instituted by a third party against the assured for personal injury or loss of life be pending at the termination of said period of three years a suit may be brought against the company within six months from the termination of said suit, and not later.”
    Upon the trial of an action brought by the assured against the receiver of the insurance company to recover damages resulting from an explosion in which an employee of the assured had been injured, it appeared that an action brought by such employee against the assured had resulted in a j udgment in favor of the plaintiff, which was affirmed on appeal, the order of affirmance being entered October 13, 1898, and that the judgment was paid October 28, 1893. The claim in suit was not presented until April 23, 1894, the assured claiming that its cause of action did not accrue until it had paid the judgment.

      Held, that the claim was barred by the limitation contained in the policy, that the period of six months in which a suit could be brought as provided by the policy dated from the termination of the suit and not from the date of the payment of the judgment.
    Appeal by tlie claimant, the Gendron Iron Wheel Company, from a judgment of the Supreme Court in favor of ITenry S. Ward, as receiver of tbe American Steam Boiler Insurance Company of New York'city, entered in the office of tbe clerk of tbe county of New York on tbe 1st day of March, 1895, upon tbe report of a referee dismissing tbe claim of tbe Geudron Iron Wheel Company.

      A. W. Gleason, for the appellant.

      J. C. O'Conor and G. M. Spier, for the respondent.
   Parker, J.:

An affirmance of tbe judgment is required upon tbe ground that tbe claim is barred by tbe limitation contained in the policy. That tbe claim was not presented within six months from the termination of the suit against the assured is too clear for questioning. It is only by attempting to read into the provision something which would not have occurred to either of the parties to the contract but for the neglect to file a claim seasonably, that the claimant is able to present a question for consideration.

The American Steam Boiler Insurance Company insured the claimant against loss or damage by explosion of, or accident to, two steam boilers, the policy expressly including damages sustained by an employee, and recovered by him against the assured.

While the policy was in force an explosion occurred in which an employee was injured, and other damage done. For the latter a claim was presented and paid. But the claim for injuries sustained by the employee was contested in the trial court, and on appeal resulted in a judgment -which was finally affirmed, the order of affirmance being duly entered October 13, 1893.

The policy provides that “No suit or proceeding shall be brought to recover any sum for loss of property arising under this policy, unless commenced within one year from the date of the explosion or accident; nor for loss arising from injury to person * * * unless commenced within three years from said date * * * and in case a suit instituted by a third party against the assured for personal injury or loss of life be pending at the termination of said period of three years, a suit may be brought against the company within six months from the termination of said suit, and not later.”

If the suit of the employee terminated October 13, 1893, when the mandate of the Circuit Court was filed with the clerk of the Court of Common Pleas of Lucas county, this claim should have been presented within six months, or on or before April 13, 1891. It was not presented until April twenty-third, ten days later.

After October thirteenth, two events happened which the claimant seeks to make use of to save it from the natural result of its neglect. These events are: (1) The payment of the judgment by the claimant on October twenty-eighth. (2) The payment of the costs November first.

As to the first, the claim is that the assured had no cause of action until after it had paid the judgmentcould not present a claim until then, and, therefore, had six months from the time its cause of action accrued within which to prosecute it.

If this position be well taken, then the limitation provided for by the contract was dejDendent upon the time of payment of the judgment instead of upon the termination of the suit. And, as payment could be postponed by the assured for so long a period as it could arrange with its judgment creditor, the right to determine when the six months period.should begin to run would rest with the assured. But the language of the provision does not admit of such a construction. It provides that the period of six months shall date from the termination of the suit, not from the date of payment. . It was within the power of the assured, through a prompt payment of the judgment, to make both dates the same, and thus to secure, if desired, six months after the cause of action accrued within which to present its claim. But it had not the right to postpone.the period by refusing to pay the judgment.

The decisions to which the appellant calls our attention, such as Steen v. Niagara Fire Insurance Co. (89 N. Y. 315), do not call for a different construction of the language employed in this contract from that which we have given to it.

In Steen’s case, it is true, the court held that the provision in the policy limiting the time for bringing an action to a “ term of twelve months next after the loss or damage shall occur,” did not bar an action by the assured until fourteen months thereafter. But the reason assigned for the conclusion reached was, that the company intended to give the insured a full period of twelve months, within any part of wliicli lie miglit commence his action. And having postponed tlie assured’s right to bring an action until sixty days after the receipt of the proofs of loss by the company, it was apparent that it did not intend to include that period within the period of limitation.

The court said: “ The parties cannot be presumed to have suspended the remedy and provided for the running of the period of limitation during the same time.”

If this policy provided for a postponement of payment of the judgment by the assured after the termination of the suit against it, the Steen case would be iu point and controlling; as it is, it has no' bearing whatever.

The second event relied on, to wit, the payment of costs on November first, is in the main answered by what we have said in relation to the payment of the judgment.

Claimant’s counsel in his brief suggests that, as the. costs constituted part of tlie recovery, the suit was not finally terminated until after they were taxed.

Assuming this position to be well taken, the difficulty with its application to the facts contained in this record is, that it nowhere appears that the costs were not taxed on the day the remittitw was entered.

All the information we have relating to costs is found in three receipts entered upon the appearance docket.

The first receipt, dated October twenty-eighth, is for the judgment “except the costs,” and authorizes the clerk to cancel the judgment of record.

The second is dated November first, and acknowledges the receipt of clerk’s and notary fees from the sheriff.

The third entry acknowledges the filing of receipts for witness-fees on the fourteenth of November.

The record, therefore, does not furnish a basis for the position the appellant suggests rather than urges.

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.