author: BkowN, P. J.:

text:
    William Wainwright and Others, Respondents, v. Queens County Water Company, Appellant.

      Pleading — allegation of a conclusion — 'promise by one person for the benefit of another, enforeible by the beneficiary — municipal power, as distinguished from duty — status of contractor with “territorial districts” — privity of contract— judicial notice of a general statute.

    An allegation in a complaint that an agreement was entered into by a water com. pany with a fire district (established by the supervisors of a county) '“for the benefit of the residents and taxpayers within such fire district, and for the .benefit of the plaintiffs,” is only the pleader’s conclusion as to the effect of the agreement, and is not an allegation of a fact which would be admitted by a demurrer to the complaint.
    Privity of contract must exist between the parties to an action brought upon a contract, but where a third person is specifically named in a contract or the promisor receives money or property which he agrees to pay over to a third person, who by adopting the contract becomes a beneficiary thereunder, or where the promisee is under a legal obligation to the third person which the promisor assumes as his own, privity of contract by adoption may be spelled out, but to bring a case within such rule the contract must not only be beneficial to the third party, but it must have been intended for his benefit by the contracting parties.
    It is not a part of the corporate duty of a municipal corporation to supply its citizens with light, water, fire apparatus, hospitals or any of those conveniences which to a great extent improve the sanitary condition of the community and are beneficial to the inhabitants; the State delegates to a municipal corporation such powers as privileges, and does not impose them as duties, and while highly beneficial to a community, they are not regarded as beneficial to a municipality in its corporate character.
    The power to maintain structures or systems for the supply of water and light is not equivalent to a duty to do so, and no obligation rests upon a municipality in this regard to do the thing it has the power to do. The failure to maintain a water works system in a municipality in proper condition so that a fire would be extinguished if the water supply were sufficient, does not create a cause of action against the municipality in favor of an aggrieved party.
    Territorial districts created by the law-making power, but not incorporated, do not stand in any different relation to the powérs and duties which they are authorized and permitted to exercise than municipal corporations, and if a territorial district, instead of supplying itself with water by a system owned by it, contracts with a corporation to perform such service, there is no privity of contract between an individual taxpayer in such district and the contracting water company, and there is no official duty assumed by that company, which is responsible to the district alone; and persons who claim to Rave been injured, because the agreed supply of water was not furnished, have no cause of action against the company.
    Privity of contract is an essential element to an action founded on a breach of contract, and whether an action for damages resulting from the breach be in form on contract or for a wrong, it can only be maintained by a party to the contract.

      Little v. Banks, 85 IT. Y. 258, distinguished.
    Upon an appeal the appellate court will take judicial notice of a general statute, • although not referred to in the pleadings.
    Appeal by tbe defendant, tbe Queens County Water Company, from an interlocutory judgment of tbe Supreme Court in favor of tbe plaintiffs, entered in tbe office of tbe clerk of tbe county of Queens on tbe 6tb day of January, 1894, upon tbe decision of tbe court rendered after a trial at tbe Kings County Special Term, and also from an order entered in said clerk’s office on tbe 6tb day of January, 1894, overruling tbe defendant’s demurrer to tbe complaint.
    Tbe complaint, after setting forth tbe incorporation of tlie defendant, alleges tliat on April 3,1887, tbe board of supervisors of -Queens county, pursuant to law, established a fire district in tbe unincorporated village of Rockaway Beach, and authorized such district to purchase apparatus for tbe extinguishment of fires, and to procure for like purposes a supply of water through hydrants to be set, maintained and supplied by tbe defendant, at tbe annual rent or sum for tbe use of such hydrants of $2,000, to be paid to said defendant upon condition that it should maintain a pressure in its pipes supplying such hydrants at all times sufficient to throw a stream of water forty feet in height through a one-inch nozzle, at a hydrant to be set at tbe corner of Remsen avenue and tbe Central boulevard in said ■district.
    That such conditions were accepted by tbe defendant, and an ■agreement entered into between it and said fire district whereby defendant bound itself for tbe term of ten years to supply water to said district, by tbe means, for tbe consideration and upon tbe condition aforesaid, and said district agreed to pay said sum of $2,000 .■annually, provided tbe conditions and requirements of said contract were fulfilled.
    That said district organized and equipped a 'fire department, and purchased hose, hose carriage and necessary appliances therefor, :and fully performed tbe agreement upon its part, and annually paid oyer to the defendant the sum of $2,000, which was raised by taxation upon the district for the purpose aforesaid.
    That plaintiffs were residents of, and taxpayers in, said district, and were taxed and had paid their taxes for the purpose of carrying out said agreement, and that the district was established and said agreement entered into with the defendant for the benefit of the residents and taxpayers of said district, and for the benefit of the plaintiffs, all of which defendant knew when it entered into said agreement, and that the same was entered into by defendant in view of that fact.
    That on September IB, 1892, buildings owned by the plaintiffs within said district were destroyed by fire.
    That the fire department of said district were present at said fire, and used every means to extinguish it; but were unable so to do because of an inadequate supply of water. That such inadequate supply of water was the result of a failure on the part of defendant to maintain the pressure upon its pipes which it had agreed to supply and maintain, and that if such pressure had been supplied and maintained at the time of the fire, the supply of water would have been adequate, and the fire would have been extinguished.
    That by reason of the failure of defendant to perform its agreement, the buildings were destroyed, and plaintiffs suffered damage to the amount of $30,000, for which sum judgment was demanded against the defendant.
    Defendant demurred to the complaint on the ground that the facts stated did not constitute a cause of action.

      Jesse Johnson, for the appellant.

      Daily, Bell & Grcme, for the respondents.
   BkowN, P. J.:

The plaintiffs rest their right to recover solely upon the contract entered into between the defendant and the fire district. The allegation is that the defendant “ failed, neglected and refused to-comply with its agreement * * * and that by reason thereof ” the buildings were destroyed.

No negligence on the part of the defendant is alleged, nor is there-any assertion of omission on its part of any act in its power to perform, to wbicb could be attributed its failure to supply and maintain tbe required pressure on its pipes.

The first question presented, therefore, is whether there were such contractual relations between the defendant and the plaintiffs as to support this action ?

The allegation in the complaint which it is claimed established such relation, is that said agreement was entered into with defendant * * * for the benefit of the residents and taxpayers within said fire district and for the benefit of these plaintiffs.” The plaintiffs claim this to be an allegation of a fact, which is admitted by the demurrer. I am of the opinion that it is only the pleader’s conclusion as to the effect of the agreement. The substance of the resolution of the board of supervisors and the agreement entered into between the parties is set forth in the second and third paragraphs of the complaint.

No individual taxpayer is named in the agreement, nor is it therein stated to be for their benefit, or that it was intended for their benefit. Nor did the defendant agree to extinguish fires, and it is clear, I think, that the allegation is a conclusion solely from the fact that its performance by the defendant would inure to the benefit of the plaintiffs and other taxpayers of the district.

This is not sufficient to bring the case within the rule that when a promise is made by one person for the benefit of another, it may be enforced at the suit of the latter.

It would serve no useful purpose to renew the discussion that has existed upon this rule since the decision of the case of Lawrence v. Fox (20 N. Y. 268). Many cases in which that principle has been applied seem to be in conflict with the rule that in an action upon a contract, privity of contract must exist between the parties. But where the third party was specifically named in the contract, or the promisor received money or property which he agreed to pay over to the third party, who, by adopting the contract, became a beneficiary thereunder, or where the promisee was under a legal obligation to the third person, which the promisor assumed as his own and thus connected himself with the transaction, privity of contract by adoption was spelled out.

But it is now settled that, to bring a case within the rule, the contract must not only be beneficial to the third party, but it must have been intended for bis benefit by tlie contracting parties. (Ætna Wat. Bank v. Fourth Nat. Bank, 46 N. Y. 82; Garnsey v. Rogers, 47 id. 233 ; Vrooman v. Turner, 69 id. 280.)

In many cases where, as in tlie one before tlie court, the performance of the agreement would be beneficial to third persons, recoveries have been denied because the agreement was not specially intended for the benefit of those suing thereon. (Turk v. Ridge, 41 N. Y. 207; Merrill v. Green, 65 id. 270; Simson v. Brown, 68 id. 355.)

This case cannot, therefore, I think, be brought within the rule applicable to promises made for the benefit of third parties.

The case chiefly relied upon to support the action, and the one upon which the learned judge who decided the case at Special Term placed his decision, is Little v. Banks (85 N. Y. 258).

The decision in that case appears to have been put upon two grounds:

First. That the promise sued on was made for the benefit of the plaintiffs.

Second. That the contract was with the State for a consideration received from it, upon which the defendants were liable to a private action at the suit of a party injured by a neglect to perform it.

Upon the first ground it is distinguished from the present case in that the plaintiffs there belonged to a class named in the contract for whose benefit the promise, for the breach of which the action was brought, was made, and for which breach the contract fixed the damages and expressly authorized an action therefor in the name of the aggrieved party.

The promise which was broken thus became a part of the consideration of the agreement, and the main question presented for the decision of the court was whether the State officers had authority to insert it in the agreement.

The second ground upon which the decision rested has, in my opinion, no application to the present controversy. It does not support an action on contract and is applicable only to actions for wrongs.

It was first stated by Judge Selden in West v. Village of Brockport (16 N. Y. 161, note) as the principle he deduced from English authorities upon which rested the liability of municipal corporations for the misfeasance and nonfeasance of its officers in relation to tbe duties with which they were charged as agents of the corporation. Whether it was the correct rule upon which to place municipal liability for such acts is of no importance. It is important, however, that its application was made to the liability of officers charged with a public duty. It was applied in the cases against contractors for keeping the canals of the State in repair, of which the leading authority is Robinson v. Chamberlain (34 N. Y. 389), and it was held there that one who, by contract with the State, assumes the duties and is invested with the powers of a public officer, is liable for a neglect to perform such duties to a person injured thereby. Those cases were all actions for wrongs. The opinions in Robinson v. Ohamberlain all placed the defendant’s liability on the ground of neglect of a public duty, and in Bennett v. Whitney (94 N. Y. 302) Judge FiNch said the liability was for negligence by an officer in the performance of a public duty.

In Little v. Banks the State (Code Civ. Proc. § 211) made it the duty of the State Reporter and other officers named to contract for the publication of the reports of the Court of Appeals with a person who should agree to publish and sell the reports on terms 'most advantageous to the public.

The publication and sale of the reports was thus, by the Legislature, made a pxiblic duty. And the person who undertook by a contract with the State officers to publish the reports, was thereby performing a public duty precisely the same as if it had been specifically imposed upon him by act of the Legislature and accepted by him. The defendants in the case cited, therefore, fell within the principle stated and were liable, not on the ground that there was privity of contract between them and the plaintiffs, but for official misconduct. But the present case presents no public duty, and the defendant under its contract has not undertaken to perform any.

The statute under which the board of supervisors acted is not referred to in the complaint, but being a general law we take judicial notice of it.

It authorizes such boards to establish fire districts in any unincorporated village in the State, and to empower such district to procure a supply of water and purchase fire apparatus for the extinguishment of fires therein, * * * and provide for the assessment, levy and collection of the cost thereof upon such district in the same manner and at tbe same time as tbe taxes of tbe town in wbicb tbe district was located were assessed and collected. (Cbap. 439, Laws 1885.)

Powers similar to those conferred by this statute are granted to municipal corporations of tbe State by tbeir charters or by the laws applicable to towns and incorporated villages, and it was tbe purpose of this act to meet tbe necessity for a supply of water in communities that could not avail themselves of general laws.

It has never been regarded by tbe courts as a part of tbe corporate duty of a municipal corporation to supply its citizens with light, water, fire apparatus, hospitals or any of those conveniences wbicb to so great an extent improve tbe sanitary condition of tbe community and are beneficial to tbe inhabitants.

Tbe State delegates sucb powers as privileges. It does not impose them as duties, and, while highly beneficial to tbe communities, they are not regarded as beneficial to tbe municipality in its corporate character.

Tbe power to perform acts or to maintain structures or systems for tbe supply of water and light is not equivalent to a duty to pei’form, and no obligation rests upon tbe municipality in this regard to do tbe thing it has tbe power to do, and, hence, the authorities uniformly bold that tbe failure to maintain a water works system in municipalities in such a condition that it might be determined as a fact that a fire would have been extinguished if the water supply had been sufficient, does not create a cause of action against tbe municipality in favor of tbe aggrieved party. ( Wheeler v. Cincinnati, 19 Ohio St. 19; Van Horn v. City of Des Moines, 63 Iowa, 447; Fisher v. City of Boston, 104 Hass. 94; Tainter v. City of Worcester, 123 id. 311; Edgerly v. City of Concord, 62 N. H. 8; Jewett v. New Haven, 38 Conn. 368 ; Torbush v. Norwich, 38 id. 225 ; Grant v. Erie, 69 Penn. St. 420.)

While I am not aware that tbe precise question decided by tbe authorities cited has- been determined in this State, it has been decided by our courts in cases quite analogous that for the wrongdoing of tbe agents of tbe departments of charities and corrections and of the water department the municipality is not liable. (Maxmilian v. Mayor, 62 N. Y. 160; Smith v. City of Rochester, 76 id. 506, and cases cited.)

The cases of injuries occurring from defective highways have no application to the question, under discussion and need not be referred to.

I am unable to perceive how the fire district, the contracting party with the defendant, differed in respect to procuring a supply of water from the municipal corporations referred to in the cases cited. It had no duty to perform, but under the act of the board of supervisors it was permitted to exercise a power. But unless it had a corporate or official duty a contractor with it cannot be brought within the rule applied in (Robinson v. Chamberlain or in Little v. Banks (supra).

And I think it cannot be successfully claimed that territorial districts, created by the law-making power, but not incorporated, stand in any different relation to the powers and duties which they are authorized and permitted to exercise than municipal corporations; and when, instead of supplying itself with water by a system owned and operated by the district, it contracts with a corporation to perform that service, not only is there no privity of contract between the individual taxpayer and the contracting corporation, but there is no official duty assumed by the corporation. The contracting party is responsible to the district alone, and persons who claim to have been injured because the agreed supply of water was not furnished, have no cause of action against the company.

The authorities upon this question in other States, with a single exception, sustain this proposition. (Davis v. Water Works Co., 54 Iowa, 59 ; Fowler v. Water Works Co., 83 Ga. 219 ; Foster v. Water Works Co., 3 Lea, 42; Ferris v. Carson Water Co., 16 Nev. 44; Nickerson v. Bridgeport Hydraulic Co., 46 Conn. 24.) And to the same effect is Atkinson v. Water Works Co. (L. R. [2 Ex. Div.] 441).

I do not see that the relation of the individual taxpayer to the company that agrees to supply water is any different from what it is towards the person who sells the fire engine or the hose to the fire district. The power of the district to contract in all cases is the same, and derived from the statute. But if, from the bursting of a defective hose or the breaking down of a defective engine, the extinguishment of a fire was made impossible, the owner of the destroyed property would have no right of action against the vendor of those appliances. (Longmeid v. Holliday, 6 Eng. L. & Eq. 562 ;. Davidson v. Nichols, 93 Mass. [11 Allen] 514; Losee v. Clute, 51 N. Y. 494; Coughtry v. Globe Woolen Co., 56 id. 127.)

Privity of contract is an essential element to an action founded on a breach of contract, and whether the action for damages resulting from the breach be in form on contract or for a wrong, it can only be maintained by a party to the contract.

There is, in my opinion, no principle or authority upon which this action can be maintained, and the judgment must be reversed and the demurrer sustained.

Peatt, J., concurred; Dyeman, J., not voting.

Judgment reversed and demurrer sustained, with costs to appellant.


source: Caselaw Access Project

author: BeowN, P. J.:

license: Public Domain

text:
    The People of the State of New York ex rel. William J. Gaynor, Respondent, v. John Y. McKane and Others, Appellants.
    “ Jurisdiction ” defined generally, and in respect to granting temporary injunctions —power of a judge to grant an injunction order — cannot be attacked collaterally — criminal contempt — civil contempt ■ — ■ plea in ban' — legislative character of the act sought to be enjoined — mandatory injunctions, discretiona/ry — injunctions which, anticipate the judgment.

    Jurisdiction, in the strict meaning of the term, as applied to judicial officers and tribunals, means no more than the power to hear and determine a cause. It is the power lawfully conferred to deal with the general subject involved in the action; it does not depend upon the ultimate existence of a good cause of action in the plaintiff in the particular case before the court, and does not relate to the rights of the parties as between each other, but to the power of the court. The question of its existence is an abstract inquiry, not involving the existence of an equity to be enforced nor the right of a plaintiff to avail himself of it if it exists. It precedes those questions, and a decision upholding the jurisdiction of the court is entirely consistent with a denial' of any equity either in the plaintiff or in any one else. Jurisdiction is entirely independent of the manner of its exercise, involving the power to decide either way upon the facts presented to the court.
    The term “jurisdiction,” as generally used in equity jurisprudence, imports not the power to hear and decide, but the cases and occasions when that power will be exercised, and is to be'distinguished from the use of that term in its strict meaning.

      The jurisdiction of the Supreme Court in respect to the granting of a temporary-injunction is not general, but limited ; and such temporary- order must be made in compliance with the provisions of the Code of Civil Procedure, or it will be treated as void.
    The jurisdiction of the Supreme Court, under the provisions of section 603 of the Code of Civil Procedure, is made dependent upon the presentation to the court or judge of a complaint setting forth facts, under which the plaintiff claims to be entitled to, and upon which he demands, equitable relief; but it is not dependent upon the conclusion at which the judge arrives upon the facts stated in the complaint. Whether they constitute an equitable cause of action, or create a case within equitable cognizance, is a judicial question to be decided by the judge to whom the application is made, and his power to decide does not depend upon the correctness of his decision.
    An injunction order was granted by a justice of the Supreme Court, in an action over the subject-matter of which such court had jurisdiction, upon a verified complaint in which the plaintiff demanded equitable relief, and which set forth the facts upon which such relief was claimed and granted, upon the presentation of such complaint.

      Held, that it became the duty of such justice to consider and decide whether or not to grant the order asked for; that he had the power to consider the case and decide the application, and his determination upon the facts before him, and the order which he issued could not be said to be void, although it might be erroneous, and that it could not be reviewed or questioned in any collateral proceeding, but must be respected and obeyed until vacated or set Aside in the same suit in which it was granted;
    That where a court has jurisdiction of the subject-matter of an action, and a justice thereof has jurisdiction to consider and decide an application for a temporary order made therein, it is the duty of the person enjoined by such order to obey it; and his disobedience or resistance to its mandate is an offense punishable as a criminal contempt.
    A plea that the Supreme Court has not jurisdiction of the subject-matter of an action is a plea in bar.
    Upon an application to punish a person for criminal contempt arising out of his disobedience of a temporary order made in an action, the'questlon whether the complaint therein contained facts calling for the equitable interference of the court, or whether it set forth a valid cause of action in the plaintiff, cannot arise.
    It is essential to sustain the conviction of a person for a civil contempt of court that there shall exist not only jurisdiction in the court or officer granting the order which has been disobeyed, but also a valid cause of action in the aggrieved party; it is otherwise in a case of criminal contempt, and in proceedings to prosecute such an act the court will look only to the question of power, and if there was jurisdiction to grant the order it will impose punishment upon those w-lio willfully disobey it for the purpose of vindicating its own power and maintaining its own dignity, and leave any error as to private rights to be redressed in the orderly manner provided for by the rules of practice.

      Criminal contempts consist in a violation of the rights of the public, as represented in their judicial tribunals; they involve no element of personal injury; are directed against the dignity and authority of the court alone, and are of a public character and indictable. An element of willfulness exists in them, and they are punished in the interest of public justice and not in the interest of individual litigants.
    Civil contempts cause an injury to a party in a civil action. The acts need not necessarily be willful, and they are punished by a fine awarded to the individual litigant as an indemnity for his loss, and payment of which is enforced by the compulsory process of the court exerted in his behalf.
    The conviction of such a contempt involves a judicial determination that the party’s rights or remedies have been defeated or impaired by the contemptuous act, and the court, in determining whether a person is guilty of a civil contempt will look into the facts of the case and see if they present an occasion for equitable relief.
    In cases of criminal contempt the only inquiry pertinent to the nature of the alleged contemptuous act is whether the order which has been disobeyed or resisted was made by a court or officer having power to make the same, and questions arising upon the facts are not to be considered in such contempt proceedings.
    Whether an act sought to be enjoined is or is not of a legislative character is a judicial question to be disposed of by the court acting upon the facts, and if the court errs in its conclusion the remedy is by appeal and not by disobeying its mandate.
    Mandatory injunctions which require of a party the performance of some act always, to some extent, anticipate the judgment of the court, and while it may ultimately be determined that such an order was erroneous, yet it is no less within the power of the court to grant it; it rests in its discretion and never can be granted under the provisions of the Code of Civil Procedure unless an action is pending.
    Injunctions which in effect anticipate judgment or give some of the relief which it is sought to obtain by the decree of the court should be granted with caution and only when the necessity is great. Applications therefor call for great care upon the part of the court to which they are made, but the power to grant them is undoubted.
    Appeal by the defendants, John Y. McKane and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the cleric of the county of Kings on the 15th day of December, 1893, adjudging the defendants guilty of a criminal contempt of court.
    The appellants were adjudged guilty of resistance willfully offered to and willful disobedience of an injunction order granted by Justice Joseph E. BabNAbd on November 6, 1893.
    The injunction was granted in an aetion in which the relator was the plaintiff, and the appellants McKane, Johnson, Orandell, Cropsey and others were defendants.
    In the complaint in that action it was alleged that the plaintiff was an elector of the State, and entitled to vote in the county of Kings, and had been nominated for the office of justice of the Supreme Court by the Republican party and various Democratic bodies and was to be voted for at the election on November seventh.
    That the defendant McKane was chief of police of the town of Gravesend in Kings county, and the other defendants were inspectors of election of the six election districts of said town, and that they had conspired together to make up a false and fraudulent registry list of the voters of said town, and under the color of such false registry list to permit persons to vote in said town who were not entitled so to do.
    That the plaintiff had been prevented by the defendants from inspecting or copying said registry lists, and persons sent by him to take such copies had been arrested by the direction of said McKane and committed to jail without any opportunity to give bail.
    That said defendants intended to refuse to allow watchers appointed by the Republican organization to enter the polling booths or to be present at the voting or at the counting of the ballots.
    The judgment prayed that said defendants be enjoined from preventing the persons appointed as such watchers entering and remaining in the polling places of the election district of said town to which they should be appointed, and their acting as watchers and performing all duties pertaining to their office, including the right to see the ballots given out and votes cast and watching and overseeing the canvass of the ballots.
    Upon the complaint, duly verified, and upon accompanying affidavits, a preliminary injunction was granted substantially as prayed for in the complaint.
    The defendants were charged in this proceeding with willful resistance to and disobedience of said injunction, and have appealed from the orders adjudging them guilty upon such charges.

      James Troy, for the appellants.

      Jesse Johnson, for the respondent.
   BeowN, P. J.:

If the Supreme Court had jurisdiction of the subject-matter of the action brought against the appellants, and if Justice BaeNAed had jurisdiction to grant the preliminary injunction for disobeying or resisting which the appellants hare been convicted, that order must be treated as a valid and binding order of the court, and as such was to be obeyed until it was revoked by a subsequent order made in the same action. (People v. Sturtevant, 9 N. Y. 263; Erie R. R. Co. v. Ramsey, 45 id. 644; Mayor, etc., v. N. Y. & S. I. Ferry Co., 64 id. 624; People ex rel. Negus v. Dwyer, 90 id. 402; People ex rel. Cauffman v. Van Buren, 136 id. 252.)

Jurisdiction, in the strict meaning of the term, as applied to judicial officers and tribunals, means no more than the power lawfully existing to hear and determine a cause.

It is the power lawfully conferred to deal with the general subject involved in the action. (Bouvier’s Law Dict.; Anderson’s Law Diet.)

It does not depend upon the ultimate existence of a good cause of action in the plaintiff in the particular case before the court.

“It is the power to adjudge concerning the general question involved and is not dependent upon the state of facts which may appear in a particular case.” (Hunt v. Hunt, 12 N. Y. 217.)

“ Jurisdiction does not relate to the right of the parties as between each other, but to the power of the court. The question of its existence is an abstract inquiry not involving the existence of an equity to be enforced nor the. right of the plaintiff to avail himself of it if it exists. It precedes those questions, and a decision upholding the jurisdiction of the court is entirely consistent with a denial of any equity either in the plaintiff or in any one else.” (People v. Sturtevant, 9 N. Y. 263.)

The Constitution of the State of New York gives to the Supreme Court general jurisdiction in equity, and the Code of Civil Procedure defines that jurisdiction to be all that was possessed by the Court of Chancery of England on the 4th day of July, 1776, with the exceptions, additions and limitations created by the laws of the State.

The English Court of Chancery granted the equitable remedy of .jurisdiction by final decree and interlocutory writ, and the subject-matter of tlie action was, therefore, within the jurisdiction of the court. But while the power in the Supreme Court to award the relief by final decree is general, the Code of Procedure has abolished the interlocutory writ and substituted in its place a temporary injunction to be granted by order, and has prescribed rules governing the application for and the granting of such an order.

In this respect the jurisdiction of the court or judge is not general, but limited, and such temporary order must be made in compliance with the provisions of the Code or it will be treated as void. (Spears v. Mathews, 66 N. Y. 127.)

The question is thus presented whether Justice BaeNAed acquired jurisdiction to grant the temporary injunction.

It is provided in the Code, inter alia (§ 603), that when the right to an injunction depends upon the nature of the action, a temporary injunction may be granted when it appears from the complaint that the plaintiff demands and is entitled to a judgment against the defendant restraining the commission or continuance of an act, the commission or continuance of which during the pendency of the action would produce injury to the plaintiff.

Jurisdiction under this provision is made dependent upon the presentation to the court or judge of a complaint setting forth facts upon which the plaintiff claims to be entitled to, and upon which he demands, equitable relief, but it is not dependent upon the conclusion which the judge makes upon the facts of the complaint. Wlietlier they constitute an equitable cause of action, or create a case within equitable cognizance, is a judicial question to be decided by the judge to whom the application is made. . His power to decide does not depend upon the correctness of his decision. Jurisdiction is entirely independent of the manner of its exercise. It involves the power to decide either way upon the facts presented to the court.

"When Justice BaeNAed granted the injunction we are now considering he had presented to him a verified complaint, in which the plaintiff demanded equitable relief, and which set forth the facts upon which such relief was claimed, and upon those facts application for a temporary order was made. Upon the presentation of such a complaint it became his duty to consider and decide whether or not to grant the order asked for. He had power to consider the case and decide the application made to him. His determination upon the facts before him, and the order which he issued, cannot, therefore, be said to be void. Clothed as he was with the judicial power to decide the order made was valid. It may have been erroneous, but it was not void, and it cannot be reviewed or questioned in any collateral proceeding, but must be respected and obeyed until vacated or set aside in the same suit in which it was granted.

The court having jurisdiction of the subject-matter of the action, and the justice jurisdiction to consider and decide the application for the temporary order, it was the duty of the appellants to obey it, and disobedience or resistance to its; mandate was an offense punishable as a criminal contempt. (Code Civ. Proc. § 8.)

The question whether the complaint contained facts calling for the equitable interference of the court, or, in other words, whether it set forth a valid cause of action in the plaintiff, did notarise upon the application to punish for a criminal contempt, and, hence, is not before this court for review.

This rule, which is applicable only to cases of criminal contempt, to which class the present proceeding belongs, is to be distinguished from the rule applied in cases of civil contempt. In the latter class it is essential to sustain a conviction that there shall exist, not only jurisdiction in the court or officer granting the order which has been disobeyed, but also a valid cause of action in the aggrieved party; and this results from the fact that a civil contempt is not an offense against the dignity of the court, but against the party in whose behalf the mandate of the court has been issued, and a fine is imposed solely as indemnity to the injured party. And as there can be no injury when there is no right to maintain the suit, it is essential that this right should exist in order to sustain a conviction, and that question is always open for examination on appeal. ■

But it is otherwise in a case of criminal contempt. That offense involves no element of personal injury. It is of a public character, and indictable. It is directed against the dignity and authority of the court alone. Hence, in proceedings to prosecute such an act the court will loot only to the question of power, and if there was jurisdiction to grant the order, it will impose punishment upon those who willfully disobey it, for the purpose of vindicating its own power and maintaining its own dignity, and leave any error as to private rights to be redressed in tbe orderly manner provided for by the rules of practice.

And, obviously, no other rule could prevail and maintain the usefulness of the courts. It would be intolerable if any suitor could question and disregard the orders and decrees of the courts whenever he considered them erroneous. As well might the sheriff, who is their executive officer, refuse to execute them.

TJnder such a rule,' the administration of the law would fail, and government would break down in one of its vital parts. The distinction between a civil and a criminal contempt is plainly stated in the Code in sections 8 to 14, inclusive, and has recently been pointed out by the Court of Appeals in People ex rel. Munsell v. Oyer & Terminer (101 N. Y. 245).

While I have been unable to find that this distinction has been referred to in any of the contempt cases, it underlies every decision, and the different questions that have been considered in the opinions in the reported cases result from the difference in the character of the two offenses, and the different results that follow conviction according as the contemptuous act has been prosecuted as a civil or criminal offense.

Criminal contempts consist in a violation of the rights of the public as represented in their judicial tribunals. An element of willfulness exists in them, and they are punished in the interest of public justice, and not in the interest of individual litigants. Civil con-tempts cause an injury to a party to a civil action. The act need not necessarily be willful, and they are punished by a fine awarded to the individual litigant as an indemnity for his loss, and payment of which is enforced by the compulsory process of the court exerted in his behalf. Conviction of such a contempt involves a judicial determination that the party’s rights or remedies have been defeated or impaired by the contemptuous act. Hence, it follows that as a party cannot be said to be injured who has not shown himself to be entitled to the equitable right or remedy which has been awarded to him, the court, in determining whether a person is guilty of a civil contempt, will look into the facts of the case and see if they present an occasion for equitable relief. Such are the cases of Erie R. R. Co. v. Ramsey (45 N. Y. 631) and People ex rel. Cauffman v. Van Buren (136 id. 252).

Those were civil contempts, and where in the opinion the term . jurisdiction ” is used, it was not intended to refer to the power of the court to hear and determine the application for the injunction, but to the occasion for the exercise of that power, which is “ equitable jurisdiction,” as that term is used and understood in equity jurisprudence.

As already pointed out, two questions were properly before the court in the cases cited: First. The question of abstract power in the judge who granted the order, and, second, was the plaintiff entitled to the remedy awarded ?

Unless the latter question was answered affirmatively the damages awarded could not be sustained, and all that was said about the jurisdiction of a court of equity to entertain such a suit as was then before the court meant nothing more than a consideration of the question whether a proper case for equitable relief existed on the facts presented. The discussion had nothing to do with the power vested in the court to consider and decide the case. That such power existed independent of the facts of the case was repeatedly stated in the opinion.

In People ex rel. Cauffman v. Van Buren it is true that the prevailing opinion in its opening proceeds to consider the question whether the court had jurisdiction of the subject-matter -of the action. That was an inaccurate expression. There was no question of that kind before the court. A plea that the Supreme Court had no jurisdiction of the subject-matter of an action would be a plea in bar, because, if that court has no jurisdiction no court in the State has. As to any question arising under the laws of the State and between its citizens such a claim would be absurd. The jurisdictional question in that case was not as to the subject-matter of the action, but whether the affidavits presented to the county judge brought the case within the provision of the Code so as to authorize that officer to grant the preliminary injunction.

What the learned judge who wrote the prevailing opinion in that case intended to demonstrate and what he did demonstrate was that the facts set out in the affidavits presented a proper case for equitable cognizance; or, in other words, that there was equitable jurisdiction, as the term is generally understood, and that question was a pertinent one to the case, it being one of civil contempt.

There is a clear distinction between the term “ jurisdiction ” in its strict meaning and as generally used in equity jurisprudence. In its strict meaning, as I have stated, it imports only the power residing in a court to hear and determine an action.

Rut as applied to the power of a court of equity it is ordinarily used with more limited signification, and imports not the power to hear and decide, but the cases or occasions when that power will be exercised. This distinction, while clearly pointed out in the best works on equity jurisprudence, has not always been observed in judicial opinions, and the expression “ jurisdiction” has been used when the writers meant only to inquire whether the facts before the court presented a case for the proper ex'ercise of the power of a court of equity.

Mr. Pomeroy has very clearly pointed out the distinction here referred to. (1 Pom. Eq. Juris. §§ 129, 130, 131.)

The term “ equity jurisdiction,” he says, is used in contradistinction to “jurisdiction” in general, and to “ common-law jurisdiction” in particular.

“ Equity jurisdiction,” therefore, in its ordinary acceptation, as distinguished on the one side from the general power to decide matters at all, andón the other from the jurisdiction “at law” or “common-law jurisdiction,” is the power to hear certain kinds and classes of civil causes according to the principles of the method and procedure adopted by the Court of Chancery, and to decide them in accordance with the doctrines and rules of equity jurisjuudence.”

If a court clothed with the equity jurisdiction as thus described should hear and decide, according to suitable methods, a case which did not fall within the scope of equitable jurisprudence, such judgment, however erroneous it might be and liable to reversal, would not necessarily be null and void. “ Equity jurisdiction” may exist over a case although it is one which the doctrines of equity jurisprudence forbid any relief to be given, or any right to be maintained. This conclusion is very plain and even commonplace. Yet “ equity jurisdiction ” is constantly confounded with the right of a plaintiff to maintain his suit, and obtain his equitable relief, thus in fact making the power to decide whether equitable relief should be granted depend upon the actual granting of such relief.”

In the sense here referred to the expression is used in the cases cited, and when the term is used in the opinions in connection with the facts it has no reference to the power of the judge who granted the order, but to the question whether the facts showed a case for equitable cognizance.

The discussions which appear in the opinions in cases of civil contempt in reference to the plaintiff’s cause of action are not, therefore, in any wise inconsistent with or opposed to the rule applied in cases of criminal contempt, and in the latter class the only inquiry pertinent to the nature of the alleged contemptuous act is, was the order which has been disobeyed or resisted made by a court or officer .having power to make it? An examination of the decisions in this class of cases will show how closely the courts have adhered to this rule.

And when the facts have been referred to it was only in the way of argument, and the final assertion has always been that questions arising upon the facts were not to be considered in the contempt proceedings.

Thus, in the Sturtevcmt case, after considering the complaint and the nature of the act enjoined, and the point raised, that it being a legislative one the power did not exist in the courts to restrain it, Judge JohNsok says: Whatever may be determined as to the proper character of this act * * * it is, I apprehend, plain that the question of its true legal character is judicial. * * * The court, therefore, which is called upon to determine this question is called upon to perform a legitimate judicial function. It has authority to perform it and is exercising jurisdiction when it makes its decision. It follows, that it has power to arrest the consummation of the act until it determines the question; and its order, though it may be erroneous, cannot be regarded as void.”

To the same effect are the remarks of Judge FiNCH in the Dwyer case, where a similar question was raised. lie says: “ Whether the act sought to be enjoined was or was not of a legislative character was a judicial question to be disposed of by the court acting upon the facts, and it could prohibit action until it could investigate and finally decide the question. If the court erred in its conclusion the remedy was by appeal, and not by disobeying its mandate.” We are not, therefore, permitted upon this appeal to review the decision of Justice BARNARD in granting the preliminary in junetion. Ilis decision involved the determination of every question necessary to support the order, and in making it he was exercising the jurisdiction conferred upon him by the Constitution and laws of the State. Ilis order was a valid exercise of judicial power, and while the question whether such an action as was brought against the appellants could be maintained is open to grave doubt, that question is not now before the court and cannot be determined. Disobedience or resistance to the order was a criminal contempt.

The point that the act which it was sought to restrain was one which would be final and complete before the trial of the action does not affect the jurisdictional question. Interlocutory writs of injunction were granted by the Court of Chancery because of the necessity of the case, and there could be no more proper occasion for the interference of the restraining power of the court than one where the injury would be complete before the plaintiff could bring his suit to trial.

Mandatory injunctions which require of a party the performance of some act always to some extent anticipate the judgment of the court. It may ultimately be determined that such an order was erroneous, but it is no less within the power of the court to grant it. It rests in the discretion of the court, and never can be granted under the code of practice in this State unless an action is pending. And ample provision is made to indemnify the defendants against loss in case it is finally determined that the plaintiff was not entitled to it.

Numerous instances might be cited where the final judgment could not operate upon the act sought to be restrained.

The cases instanced by Justice CulleN, of a threatened interference by a landlord with a tenant whose term would expire within twenty days, or of a contract to perform some act immediately, are fair illustrations.

The threatened, interference with private property, which was the case of Cercle Francais de L'Harmonie v. French (44 Hun, 123) and Brook v. Reilly (50 id. 489), arc further illustrations of this power. And while in both of the cases cited the preliminary injunction was vacated, the power of the court to grant it in the first instance was conceded.

Injunctions which in effect anticipate the judgment or give some of the relief which it is sought to obtain by the decree of the court should be granted with caution and only when tbe necessity is great. Applications therefor call for great care upon the part of the court to which they are made. But not only is the power to grant them undoubted, but the remedial and restraining power of a court of equity would be greatly impaired if such was not the rule.

The conclusions of the Special Term upon the facts have ample support in the evidence, and the orders appealed from are affirmed, with costs.

DyemaN and Pratt, JJ., concurred.

Orders affirmed, with costs.


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    James Malloy, Appellant, v. The Staten Island Rapid Transit Railroad Company, Respondent.

      Ownership of a wha/rf— when assumed to be private — damages,for personal injuries — negligence.

    In an action brought to recover damages for personal injuries sustained upon a pier in the city of New York, which was inclosed from the street, it must be assumed that the pier was a private pier in the absence of any evidence as to the source or character of the defendant’s title thereto.
    In an action brought to recover damages for personal injuries it was shown that the plaintiff went upon a wharf occupied by the defendant corporation to fish. East of the wharf was a ferry slip also occupied by the defendant. The slip was constructed of piles driven into the river and planked on the inside. The west side of the rack of piles forming the slip was about five feet from the east side of the wharf, and into that space the plaintiff dropped his fish line, and sat down on the edge of the wharf with his legs over the side. A ferry boat entering the slip struck against the rack, forcing it over towards the dock, and the plaintiff’s legs were caught and crushed between the rack and the dock.

      Held, that, under the circumstances, assuming the wharf to be the private property of the defendant, the plaintiff must be treated as a trespasser, and that there was no negligence on the part of the defendant.
    Appeal by the plaintiff, James Malloy, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 15th day of November, 1893, upon a dismissal of the complaint directed by the court after a trial at the Kings County Circuit.

      Benedict <& Benedict, for the appellant.
    Tracy, Boardmam, <& Platt, for tlie respondent.
   BkowN, P. J.:

The plaintiff in tbis action received injuries under peculiar circumstances.

On tlie 19th day of August, 1891, he went upon a wharf occupied by the defendant in the city of New York to fish. East of the wharf was a ferry slip also occupied by the defendant. The slip was constructed of piles driven into the bottom of the river and planked on the inside.

The west side of the rack was about five feet from the east side of the wharf, and into that space plaintiff dropped his fish line and sat down on the edge of the wharf with his legs over the side.

A ferry boat entering the slip struck against the rack, forcing it over towards the dock, and plaintiff’s legs were caught and crushed between the rack and dock.

The foundation of the appellant’s argument for a reversal of this judgment is that the wharf where the accident occurred is a public street. I am unable to find in the case any foundation for this claim.

The complaint alleges and the answer admits that the defendant “ is the owner of a franchise under which it operates a ferry between Staten Island and New York * * * and * * * the lessee and occupant of a wharf and ferry slip in the East river,” etc.

The source of defendant’s title is not shown nor does it appear that the wharf is at the river end of any street of the city. On the contrary, it does appear that it was shut off from the street in front of it by a solid building, and access was had to it through gates controlled by the defendant. The only access to it was through this gate or over property of other persons.

A public street leased to and occupied by a private individual, and from which the public was excluded, as they appear to have been from this, would be an anomaly.

Omitting any reference to the legislation with reference to the water front of the city of New York along the shores of the Hudson and East rivers, it is sufficient to say that numerous piers about the city are now made the subject of private ownership and control. The general course of legislation upon this subject is set forth quite fully in recent cases in the Court of Appeals. (Langdon v. The Mayor, 93 N. Y. 129 ; Williams v. The Mayor, 105 id. 419 ; Kingsland v. The Mayor, 110 id. 569.)

While originally the wharves and exterior streets which were constructed at the expense of or by riparian owners were made public and open to the commerce of the port and the free access of the people, later legislation has modified the prohibitions and restraints of the earlier law. And now many of the piers and wharves on the river front are occupied by steamship and railroad companies and by private individuals by titles which are for the time being practically that of private ownership.

• Under the allegations and admissions of the pleadings, and in the ■ absence of any evidence as to the source or character of the defendant’s title, we must assume that the wharf in question was a private pier.

It was inclosed from the street, and the plaintiff had no right there. The defendant had no notice that he was there and was under no duty or obligation to him in reference to the management of its boat.

He went upon the wharf in a roundabout way, getting access from adjoining property, and must be treated as a trespasser.

Under such circumstances there was no negligence upon the part of the defendant, 'and the complaint was properly dismissed. (Victory v. Baker, 61 N. Y. 366 ; Larmore v. Crown Point Iron Co., 101 id. 391.)

The judgment should be affirmed, with costs.

Pbatt and Dykmak, JJ., concurred.

Judgment affirmed, with costs.


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    Robert S. Orsor, Respondent, v. The Metropolitan Cross Town Railway Company, Appellant.

      Measure of damages for personal injuries — evidence as to.

    In an action brought to recover damages for personal injuries the plaintiff has a right to recover the amount of his pecuniary loss caused by his inability to perform his usual work, and his testimony as to the amount he would be able to earn during the period of his incapacity to work is admissible in evidence where it does not involve any element of income from invested capital; but when a plaintiff does not know what his earnings would have been during such period, and so states upon his cross-examination, it is improper for the jury, in rendering its verdict, to consider his testimony as to what he thought his earnings would have amounted to during that period.
    Appeal by the defendant, The Metropolitan Cross Town Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 3d day of November, 1893, upon the verdict of a jury rendered after a trial at the Richmond Circuit, and also from an order entered in said clerk’s office on the 26th day of October, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      Henry Thompson, for the appellant.

      F. M. Brigham, for the respondent.
   BeowN, P. J.:

The plaintiff was injured by being thrown from the platform of one of the defendant’s cars on account of the mismanagement of the car by the driver and conductor.

Upon the trial he was asked the following question : “ Q. What were your average earnings during that ten months, as near as you can estimate them ? ” The plaintiff answered over the defendant’s objection and exception, “I think that my earnings would average about $40 a week during that ten months.”

The court was asked to charge the jury that plaintiff could not recover for loss of time and business, which request was refused, and the jury were told that they might allow him as one element of his damages the pecuniary loss he has sustained in the way of wages,” and to this charge defendant excepted upon the gi-ound that it is not proven in the evidence, but left so vague and indefinite that it ought to be thrown out.”

Prior to being asked the question referred to, plaintiff had testified how the injury that he received affected his ability to do the work he was engaged in prior to the accident.

That at the time of the accident he had an interest in a business of one-third of the profits, which he received, not as a partner, but as compensation for his services as an employee, and that an agreement to that effect had existed for ten months preceding the accident.

Before that period he had been with the same persons, having a half interest. The following question was then asked : “ By the Court. Q. What were your average earnings for the ten months ? A. I have not prepared the earnings as I did not think that would come up. I couldn’t tell that. Q. Bid you lose your pay from the time you were sick ? A. I received one small amount after I was injured, but I couldn’t get out and they objected to my drawing money.”

Upon cross-examination he testified : “ This concern that I'was with six years, the name of it was Orsor & Anderson. Orsor was my wife and the Anderson was his wife. They went out of business. * * * B. Anderson took up the business then ; he is the husband of the Anderson of the old firm. My arrangement was that I was to have one-third of the profits. I never had a settlement with B. Anderson, so I don’t know what the profits were for those ten months.”

The question as to the plaintiff’s earnings was admissible, and the objection was properly overruled. (Ehrgott v. The Mayor, 96 N. Y. 264.)

The plaintiff had a right to recover for his pecuniary loss caused by his inability to perform his usual work, and the question called for his income from his personal service and did not involve any element of income from invested capital.

In this respect the case is distinguished from Masterton v. The Village of Mount Vernon (58 N. Y. 391) and Johnson v. The Manhattan Ry. Co. (52 Hun, 111).

But the jury should not have been permitted to consider this element of the case, for the reason that it was evident plaintiff did not know what his earnings were. He so stated in answer to the court and upon cross-examination.

He was injured on February 9,1893, and the trial took place in October, 1893. The period covered - by his arrangement with Anderson was from April, 1892, to the time of the accident. It would have been entirely competent for him to have stated the amount that he had actually received during that period, but he was not asked that question.

Notwithstanding the fact that he stated that he had had no settlement with Anderson, and was not prepared to say and could not tell what his earnings were, he was permitted to say what he thought they would amount to, and the jury were permitted to consider that evidence as one of the elements of his damages. The evidence was insufficient to support any finding as to the .plaintiff’s income, and the exception to the charge was well taken.

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

Pratt and Dykman, JL, concurred.

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


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    Caroline Veit, Appellant, v. Elvira Dill, Respondent.

      Husband and wife — title to land — not as tenants in common — conveyance of the entire estate of the grantor.

    A husband and wife are not seized of land as tenants in common, where they are both named in the deed thereof as grantees, in the absence of any words therein showing an intent on their part to hold the same as tenants in common.
    A deed conveyed “ all the dower and thirds and right and title of dower * * * and all other right of me, the said Mary Doyle, in and to all,” etc., etc.

      Held, that such language was appropriate to vest in the grantee named in the deed all of the estate that the said Mary Doyle then had in the property conveyed.
    Appeal by the plaintiff, Caroline Yeit, from a judgment of the Supreme Court in favor of the defendant, entered in the office of tbe clerk of tbe county of Kings on tbe 18tb day of July, 1893, upon a decision of tbe court rendered after a trial at tbe Kings County Special Term, dismissing tbe plaintiff’s complaint upon the merits and directing tbe plaintiff to complete her contract for the purchase of certain real estate.

      Thomas H. Williams, for tbe appellant.

      Wm. JB. Hurd, Jr., for tbe respondent.
   BeowN, P. J.:

This action was brought in form for tbe specific performance of a contract for the sale of land, but really to recover tbe expense incurred in tbe examination of tbe title on tbe ground that tbe defendant, who was the vendor, could not convey a marketable title.

Tbe defendant acquired title to tbe land in question from John Moore.

Moore’s title came from Mary Doyle and seven children of herself and her husband, John Doyle.

Tbe Doyle title was acquired in 1867 under a deed made to John and Mary, in which there wrere no words showing any intent on their part to bold as tenants in common. .

John Doyle died in 1881.

The case presented is one where the parties appear to have been misled by tbe case of Meeker v. Wright (76 N. Y. 262).

Mrs. Doyle, after her husband’s death, contracted to sell the land to Moore. Upon tbe authority of tbe case cited it was assumed that Doyle and bis wife held, as tenants in common, and that tbe husband’s estate, upon his death, descended to his children, subject to tiie wife’s dower. Two deeds were accordingly executed and delivered to Moore; one conveyed the estate of Mrs. Doyle and three adult children in and to ten-fourteentlis of the land, and the other conveyed four-fourteenths assumed to be vested in four infant children, and in this share Mrs. Doyle released her dower.

The decision of this case, rests upon the construction to be placed upon the latter instrument. The appellant claims it is a conveyance of the dower only, while the Special Term has decided that it was a conveyance of all her estate, whatever it might be. We agree with the trial court.

The conveyance grants, releases, conveys and quit-claims-“all the dower and thirds and right and title' of dower * * * <md all other right of me, the said Mary Doyle, in and to all,” etc., etc. The intent of Mrs. Doyle under the contract to convey the whole land is clear, and she received the consideration expressed in' the agreement. It is equally clear that she intended, by the instrument from which I have quoted, to convey not only her dower but all other rights she had in the land. The instrument was, in effect, a quit-claim deed, and the language used was appropriate to vest in the grantee all estate she had in the land.

The judgment should be affirmed, with costs.

Peatt and Dykmaet, JJ\, concurred.

Judgment affirmed, with costs.


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    Augustus Van Keuren and Another, Respondents, v. William Starr Miller, Appellant.

      Two actions on the sa/me demand —joinder of separate ccmses of action — compensation of a party to a contract, when due — damages recoverable on his discharge.

    A party cannot prosecute more than one action for the same demand, and if a single cause of action is severed, and a recovery had for a part of the claim, the judgment will operate as a har to a subsequent action for any other portion of the same claim.
    All demands actually due upon the same contract make hut a single cause of action, in reference to the rule as to-the splitting of demands; hut there is no rule which requires a party to join in the same action separate causes of action, and where one demand upon a contract is due it may be sued for, and a judgment recovered upon it is not a har to another demand on the same contract, not due at the time of the commencement of the first action.
    Where no time was fixed by a contract for the payment of commissions on labor and materials to he performed and furnished by one of the parties thereto, and the amount of such commissions represented the profit or compensation of such party, the amount thereof does not become due until the performance of the contract and the final completion of the work therein specified, unless there is a prior termination of the contract by the discharge of the person so entitled to such commissions, in which case he is entitled, upon such discharge, in the absence of any evidence justifying his discharge, to recover, in addition to commissions on the work performed and materials furnished under such contract, a sum, as damages, equal in amount to the commissions stipulated thereby to be paid, on the work done subsequent to his discharge, which amount is the value, of the contract to him.

      Appeal by the defendant, "William Starr Miller, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Dutchess on the 27th day of December, 1893, upon the decision of the court rendered after a trial at the Dutchess Special Trem.

      JEsselstyn dé MeOarty, for the appellant.

      A Lee Wager, for the respondents.
   BeowN, P. J.:

This action was brought to recover commissions stipulated to be paid to the plaintiffs by the defendant upon the value of labor performed and materials used in the construction of a dwelling house.

The only defense necessary to be considered upon this appeal is that the claim here sued upon is a part of a cause of action made the subject of a prior suit between the parties, and upon which judgment was recovered by the respondents.

That case was before this court in 1893, and is reported in 71 Hun, 68. A recovery was there had for materials purchased by the plaintiffs and used in the building.

There was no general contract between the parties for the erection of the building or any part of it, but the plaintiffs were to purchase the materials and furnish the labor, and to the bills therefor were to add ten per cent, which sum was their commission or profit on the work.

The contract between the parties provided that, on or before the fifteenth day of each month the defendant should pay ninety per cent of the value of the bills for materials and labor, and that the balance should be paid within ten days from the date of the final acceptance of the building.

Bills for the materials and labor were to be rendered before -the fifth day of each month, and bills for labor were to be made out for the exact amount paid by the builders to the men. It then provided as follows:

c‘ On the bills so rendered the builder shall be entitled to charge a commission of ten per cent for his general services in connection with the works, the purchase of material, the employment of labor and such clerical work as is necessary in connection with the execution of the works in a good and workmanlike manner.”

The appellant claims that the commissions were due monthly, and were a part of the bill for each month, and if this contention is sound they should have been included in the former action.

A party cannot prosecute two or more actions for the same demand, and if a single cause of action is severed and a recovery had for a part of the claim the judgment will operate as a bar to a subsequent action for any other portion of the same claim.

And it has been held that all demands actually due upon the same contract make but a single cause of action in reference to the rule as to the splitting of demands. (Bendernagle v. Cocks, 19 Wend, 207; Fish v. Folley, 6 Hill, 54.)

But there is no rule which requires a party to join in the same action separate causes of action, and where one demand upon a contract is due it may be sued for, and a judgment recovered upon it is not a bar to another demand on the same contract not due at the time of the commencement of the first action. (Butler v. Wright, 2 Wend. 369.)

No time was stipulated ■ in the contract for the payment of the commissions on the labor performed and materials furnished, and as it represented the profit or compensation of the plaintiffs it was not due until the performance of the contract and the final completion of the building.

The jfiaintiffs were discharged in March, 1893, and they were not entitled to sue for their commissions until that date. The prior action was commenced in February. The claim here asserted was not, therefore, due when that action was commenced. The discharge of the plaintiffs terminated the contract, and they were entitled in addition to commissions on work performed and materials furnished to then sue for breach of the agreement, and in the absence of any evidence justifying the discharge they were properly allowed as damages ten per cent upon the cost of the work subsequent to the discharge. That sum represented the value of the contract to them.

The judgment should be affirmed, with costs.

Pbatt and DykmaN, JJ., concurred.

Judgment affirmed, with costs.


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    New York City Suburban Water Company and Others, Respondents, v. Joseph B. Bissell and Another, Appellants.

      Order vacating an injunction — a judgment, entered by stipulation, dismissing the complaint — liability of the sureties upon the undertaking.

    An order vacating an injunction and discontinuing an action, whether entered voluntarily by the plaintiff, or after leave granted by the court upon his ' application, is in effect a determination that the plaintiff was not entitled to the injunction granted.
    In an action in which an undertaking was given by the plaintiffs, upon the issuing of an injunction therein, the General Term reversed the order granting such injunction, and the decision of the General Term was affirmed by the Court of Appeals. Before the argument was had in the Court of Appeals and after the action wherein the injunction was granted had been noticed for trial, a stipulation was entered into, adjourning the trial of the action until after the decision of the Court of Appeals, which stipulation provided that if the order of the General Term, reversing the order granting the injunction, was affirmed upon the merits, the complaint in the action should be dismissed.
    Upon the remittitur of the Court of .Appeals, and such stipulation, judgment was entered in favor of the defendants, and a reference was ordered to ascertain the damages, to secure the payment of which the undertaking was given. Thereafter an action was brought upon such undertaking.

      Held, that the judgment entered in pursuance of such stipulation was as binding upon the parties as though it had been recovered upon a trial; and in the absence of fraud or collusion it was binding upon the parties to such undertaking.
    Appeal by the defendants, Joseph B. Bissell and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 3d day of November, 1893, upon the decision of the court rendered after a. trial at the Westchester Special Term.
    The action was brought against the obligors on an undertaking given upon the issuing of an injunction in an action brought against the plaintiffs herein. The trial court, in the case at bar, found as matters of fact that such injunction order was vacated by the General Term; that subsequently the action in which the injunction was granted was noticed for trial by both parties, and thereafter an appeal was-taken from the order of the General Term vacating the injunction; that a stipulation was entered into between the parties to the action to the effect that if the Court of Appeals affirmed the order of the General Term upon the merits the complaint .in that action should be dismissed upon the merits, and it should be adjudged that the plaintiffs therein were not entitled to the preliminary injunction against the defendants; that the order of the General Term was affirmed by the Court of Appeals, and thereafter the defendants in such last-mentioned action made a motion for judgment, and an order -was entered directing judgment for the dismissal of the complaint therein upon the merits; that a reference to ascertain the amount of damages that the defendants therein .had sustained by reason of the injunction was ordered, and subsequently the referee reported the amount of such damages to be $1,000, which report was duly confirmed.
    The undertaking upon which this action is brought was given in the action brought by Henry Huss and another against the New York and Mount Yernon Water Company and others, and was in form as follows :
    “ The above-named plaintiff having applied to one of the justices of this court for an injunction in the above-entitled action, restraining the defendants from making any transfer, assignment or disposition by way of consolidation or otherwise to the prejudice of plaintiff’s rights in the stock of the defendant corporations as herein mentioned:
    “Now, therefore, pursuant to the statute in such case made and provided, J. B. Bissel, of No. 37 West 50th street, in the city of New York, and Joseph M. Low, of 18 Eagle Hotel, street, in the city of Kingston, New York, jointly and severally undertake in the sum of one thousand dollars, that the plaintiff will pay to the defendants, or either of them so enjoined, such damages, not exceeding the sum of one thousand dollars, the before-mentioned sum, as they or either of them may sustain by reason of the injunction, if the court finally decides that the plaintiff was not entitled thereto; such damages to be ascertained and determined by the court or by a referee appointed by the court, or by a writ of inquiry or otherwise as the court shall direct.
    “ Dated New Yoke, Augst. 11th, 1891.
    “J.B. BISSEL.
    “ JOSEPH M. LOW.

      Alburtus Perry, for the appellants.

      John B. Gleason, for the respondents.'
   BkowN, P. J.:

Judgment was recovered against tbe defendants upon an undertaking given as security upon the issuing of an injunction in an action in wliicli Duncan F. Cameron and another were plaintiffs, and the plaintiffs herein were defendants.

The only question presented upon this appeal is whether there has been a final decision that the plaintiffs in that action were not entitled to the injunction.

The General Term reversed the order granting the injunction, .and the order of the General Term was affirmed by the Court of Appeals. (Cameron N. Y. & Mt. V. Water Co., 133 N. Y. 336.)

Before the appeal from the order was argued in the Court of Appeals, and after the case had been noticed for trial, the parties entered into a stipulation adjourning the trial until after the decision of the Court of Appeals, and providing that if the order of the General Term was affirmed upon its merits the complaint should be dismissed and the judgment recite that plaintiffs were not entitled to the injunction.

Accordingly, upon presentation to this court of the remittitur from the Court of Appeals, a judgment was entered in accordance with the stipulation, and a reference ordered to ascertain the damages, to secure the payment of which the undertaking jvas given. The referee having made his report, and the same having been confirmed, this action was commenced.

The judgment entered pursuant to the stipulation is as binding upon the defendants as though it had been recovered upon a trial, and, in the absence of evidence of fraud or collusion, it is conclusive upon them. (Conner v. Reeves, 103 N. Y. 527; Steinbock v. Evans, 122 id. 551.)

Orders vacating an injunction and discontinuing an action, whether entered voluntarily by the plaintiff or after leave granted by the court upon his application, are in effect a determination that the plaintiff was not entitled to the injunction granted. (Pacific Mail Steamship Co. v. Toel, 85 N. Y. 646 ; Amberg v. Kramer, 29 N. Y. St. Repr. 958.)

The stipulation under consideration here was in effect a voluntary conditional discontinuance of the action by the plaintiffs. The right to the temporary injunction involved the merits of the case, &nd tliat was recognized by the parties, hence the agreement that if the order of the General Term was affirmed on its merits the complaint should be dismissed upon the merits.

It would have been manifestly a waste of time to have tried the action after the decision of the Court of Appeals.

The appellants have cited ninny cases which they claim decide that where an action has been discontinued by agreement there is no liability upon the undertaking.

None of them are applicable to the facts here presented, but all are distinguished.from the cases I have cited by the existence of some fact which takes them out of the rule governing a voluntary discontinuance by the plaintiff.

The stipulation here was not a settlement of the action. It contemplated its continuance if the order of the General Term should be reversed, but it recognized that a question of law arising upon the construction of the statutes of the State lay at the foundation of the plaintiffs’ case, and if that should be decided adversely to their contention, the right to a judgment was destroyed, and it would be useless to try the action, and so it was agreed that if the decision upon the legal question was against the plaintiffs’ claim the complaint should be dismissed.

The judgment entered upon that stipulation has determined that the plaintiffs were not entitled to the injunction.

The judgment appealed from is affirzned, with costs.

Pratt, J., concurred; Dykman, J., hot sitting.

Judgment affirmed, with costs.


author: Pratt, J.:

text:
    The People of the State of New York, Respondent, v. William J. Smith, Appellant.

      Plea of gwilty— Gode of Criminal Procedure, § 333 — statutory construction.

    Section 333 of the Code of Criminal Procedure does not prohibit a person from pleading guilty of any crime whatever, but simply provides that no man shall be convicted upon such a plea where the punishment is by death' or imprisonment for life.
    Courts are bound to construe a statute under the well-settled rules of statutory construction without regard to the intention of the man who drafted the law.

      Appeal by the defendant, William J. Smith, from an order of the Supreme Court, made at the Kings County Oyer and Terminer and entered in the office of the clerk of the county of Kings on the 26th day of January, 1894, dismissing a writ of habeas corpus.
    On November 21, 1890, William J. Smith was indicted, charged with having shot and killed- one John Carroll in November, 1888. Such indictment charged him with the crime of murder in the first degree. He was arraigned and pleaded not guilty to the indictment in February, 1891. In March, 1891, he was placed on trial on such indictment, and the trial resulted in a disagreement of the jury. In December, 1891, a plea of guilty of the crime of manslaughter in the second degree was entered through his counsel, and thereafter Smith was sentenced under such plea to ten years’ imprisonment in the Kings County Penitentiary. On January 26, 1894, Smith was brought before the Court of Oyer and Terminer by a writ of habeas corpus, which was thereafter by an order of the court dismissed.

      Stapleton c& Miles, for the appellant.

      James W. Ridgeway, District Attorney, and John F. Clarice, Assistant District Attorney, for the resjjondent.
   Pratt, J.:

There is no merit in the contention urged by the appellant. Section 35 of the Penal Code provides as follows: Upon the tidal of an indictment the prisoner may be convicted of the crime charged therein, or of a lesser degree of the same crime, or of an attempt to commit the crime so charged, or of an at'temjit to commit a lesser degree of the same crime.” This section speaks for itself. Section 332 of the Code of Criminal Procedure provides that no conviction shall be had upon a plea in cases where the crime is punishable by death or imprisonment for life.

The appellant was not cowoicted of any such crime, but of one punishable for a term of years. Section 332 of the Code of Criminal Procedure does not provide- that a man may not plead guilty of any crime whatever, but simply that no man shall be corvoicted upon such a plea where the punishment is by death or imprisonment for life.

The matter is too simple and plain to require argument. It maybe added that courts are bound to decide, under well-settled rules of statutory construction, without regard to what was the intention of the man who drafted the law.

The order should be affirmed.

Brown, P. J., and Dykman, J., concurred.

Order affirmed.


text:
    Sophia Crozier, Appellant, v. George R. Read, Respondent.

      Negligence in omitting to prevent injury to another.

    A person becomes chargeable with negligence by a failure on his part to take a precaution which a reasonable man would have taken to prevent injury to another, as well as by a positively negligent act which results in damage.
    Appeal by the plaintiff, Sophia Crozier, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 10th daymf November, 1893, upon the verdict of a jury directed by the court after a trial at the Westchester Circuit.

      William H. Robertson and Frederick W. Sherman, for the appellant.

      Martin J. Feogh, for the respondent.
   Pratt, J.:

This is an appeal from a judgment in favor of the defendant; entered upon a verdict rendered by direction of the court at the close of the trial, notwithstanding plaintiff’s request to go to the jury. The action was brought by the plaintiff to recover damages for severe and permanent injuries caused by her being thrown from her wagon by a collision with one of the defendant’s horses. She testified that as she was driving with her infant daughter in Port Chester, she saw a pair of defendant’s horses in charge of a boy — defendant’s servant, McCarthy — coming towards her. The boy was riding one horse bareback and leading the other by a halter.

The horses were, from the time plaintiff first saw them in the distance, prancing and plunging about so that she was frightened. She turned far out to the right, so far that there was more than enough room for a two-liorso team and lai-ge wagon to pass and still leave room on either side thereof. The boy, instead of turning out of the traveled road or of stopping or attempting to stop the horses, took them sufficiently near to cause the accident, and then, when just abreast of her, jerked or pulled upon the halter of the led horse, causing the latter to swerve across the road and back into plaintiff’s wagon, thereby arresting its progress with such1 suddenness as to throw her and her child out of the wagon. She fell upon the stone roadway and injured her back, arm, shoulder and legs. A conflict arises between the testimony of the four witnesses, two on each side, as to whether or not the defendant’s horses were misbehaving before the collision to such an.extent that it was negligent to take them near the plaintiff’s wagon.

"We think, under the testimony as it stood at the close of the trial, it presented a proper question to be submitted to a jury.

The testimony on the part of the plaintiff might well justify the inference that the collision could have been avoided by the exercise of proper care on the part of defendant’s servant. If, as claimed by the plaintiff, the horses jxxst previoxxs to the accident had become in a degree unmaxxageable and wei’e cavorting from one side of the street to the other, a jury might well infer that it was the duty of the servant to either txxx’n the horses out of the road or dismount and hold them by the heads until the plaintiff had safely passed.

A party can be charged with negligence iix omitting to take a precaution which a reasonable man woxxld have taken to prevent injux-y as well as by a positive negligent act which results in daiñage.

Again, a juiy might have foxxnd that it was negligent, under the circumstances, to jerk the horses’ heads just as the horses were about to pass the plaintiff. A sudden axxd violent jeik has a tendency, as evexybody kxxows, to make a horse settle back, and his head being turned froxn the wagon, iixstead of towards it, the tendency would naturally be for him to back against the wagon. The juiy might have thought that the boy negligently and ixnskillfully managed the horses at the instant of or jxxst before the collision.

If the lxox'ses’ heads had been towai’ds the wagon there would have been no collision, bxxt the horses would have backed away, winch is a conclusion that follows from tlie well-known disposition and habit of a horse not to run against any obstacle.

At all events a case is presented where twelve honest men might differ in their inferences as to the negligence of the defendant, and if they found in favor of the plaintiff it could not be said the verdict had no support in the evidence.

It appeared that the plaintiff was without fault.

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

Brown, P. J., concurred; Dykman, J., not sitting.

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


text:
    Leonard J. O’Neill, Appellant, v. The Third Avenue Railroad Company, Respondent.

      Damages for personal injuries — grounds for a verdict — inference against thepa/rty failing to produce a witness.

    In an action brought to recover damages for personal injuries the court charged the jury that the plaintiff must show that he was free from fault, and that the defendant was at fault, and that where a person is interested in an action it is for the jury to say, after hearing his testimony, what credit they will give to the same.
    No exception to the charge was taken by the plaintiff, and a verdict was rendered for the defendant.

      Held, that the jury was at liberty to find a verdict for the defendant upon either of such' propositions.
    The court also ruled, at the request of the defendant, that the non-production of a witness w’ho knew nothing of the accident did not justify an inference against the defendant.

      Held', that such ruling was proper. #
    Appeal by the plaintiff, Leonard J. O’Neill, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 10th day of March, 1893, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 25th day of April, 1893, denying the plaintiff’s motion for a new trial.

      Tlie following is the direct evidence given upon tlie trial of this action by William H. Truman, a witness called by the defendant:

      “Direct exmnvnation by Mr. Cohen : I live at 1118 Third avenue ; I am clerk of the Third Avenue Railroad Company, investigation of accidents, collisions, &c. Q. What are the rules with regard to the reporting of accidents by your conductors and drivers of the road ? [Objected to as incompetent. Objection overruled. Exception.] A. The rule is that no matter how slight an accident is it must be reported. Q. Must be reported to whom ? A. To me, at the office, on regular blanks, and the occasion. Any man not to have made a report of an accident, no matter how slight, is discharged immediately. [Latter part objected to and moved to be stricken out. Objection overruled. Exception.] Q. Do you keep books there ? A. There is. Q. With reports in them? A. Yes, sir. Q. Did you ever receive a report of an accident on the 18th of September, on the Bowery ? [Objected to. Objection overruled. Exception.]
    “By the Court: Q. Of this occurrence? A. No, sir; not of this occurrence. Q. You have heard the details, what it was, substantially? A. Yes,'sir.”

      Rufus 0. Oatlim,, for the appellant.

      William JR. Oohen and- Frederick P. Relafield, for the respondent.
   Pratt, J.:

This was an action' for damages for personal injuries. The material allegation in the complaint is as follows: “ That when said car slowed up sufficiently for that pmpose plaintiff started and undertook to get off, but while in the act of stepping down from said car into the street the said defendant negligently, carelessly and recklessly started, increased and accelerated the speed of said car.”

As to the course, manner and result of the accident, the plaintiff was the principal witness in his own behalf, and ho was not contradicted or impeached, nor was he corroborated upon some vital points in the case. It is not very clear that the plaintiff was free himself from negligence which contributed to the accident, but that question was submitted to the jury under the following words: “ This plaintiff must show you that he was free from fault here, and that the defendant was at fault,” so that in that regard the plaintiff had no cause of complaint.

The court also said in its charge where a jierson is interested in an action it is for the jury to say, after having heard his testimony, what credit they will give to it.” The plaintiff took no exception to the charge, and the jury were at liberty to find a verdict for the defendant upon either of the above propositions. (C. N. Bank v. Diefendorf, 123 N. Y. 191-200; see, also, Belton v. Baxter, 58 id. 411, and Hart v. H. R. R. Co., 80 id. 622.)

The only further questions available to plaintiff to reverse that judgment are those relating to rulings upon the admission and rejection of evidence upon the trial.

The evidence of the clerk as to the rule about reporting cases, and that the office had received no report, we think was relevant and properly admitted when all the facts and circumstances of the case are considered. It was proving the absence of a circumstance which would naturally follow if the contention of the plaintiff were true.

The ruling of the judge, made at request of the defendant, that “ The non-production of witnesses who know nothing of the accident does not justify an inference against the defendant,” is too plainly right to require comment..

The judgment should be affirmed, with costs.

Brown, P. J., and Dtkman, J., concurred.

Judgment and order affirmed, with costs.