author: By the Court.—Monell, J. Barbour, C. J. (concurring).

text:
    ELISE MAGNIN, el al., Plaintiffs and Respondents, v. WILLIAM B. DINSMORE, Defendant and Appellant.
    An. express company cannot limit their liability for loss and damage, by its receipt or contract, when the loss or damage was caused by its, or its servants’, negligence, or want of due and proper care of the property entrusted .to its custody and transportation.
    The common law liability for negligence or want of ca/re attaches to ex-pressmen as common carriers, notwithstanding that the value of the property exceeded the value stipulated in the contract, or that the immediate cause of the loss may have been within any one or other of the exemptions named in their contract; and in every case where the carrier limits his liability, by special conditions in the contract, such limit and conditions are unavailable if the loss was caused by his negligence.
    But in all cases where the evidence shows that the loss or damage falls within the limits or conditions expressed in the contract, the onus proiandi rests upon the party damaged, to establish the negligence of the carrier, and in such cases, where the proof of negligence rests merely upon the fact of the failure of the carrier to deliver, the party damaged cannot recover from the carrier, for negligence will not be presumed from this fact alone. The negligence of the carrier must be shown, and will not be presumed from the loss alone.
    The case under consideration is analogous to that of Lamb v. The Camden and Amboy Transportation Co., 46 IV. Y. S. 271, where the loss happened
    , by fire, which was exempted by the conditions of the contract. In this case, the value of the property exceeded §50—the sum to which the liability was limited—and the negligence of the defendants was not shown.

      The cases of Bunnell v. The Mew York Central E. B. Co., 45 JJ. Y., and Belger u. Dinsmore, discussed and considered with the Lamb case, and the latter considered the controlling decision.
    Before Barbour, Ch. J., Monell and Freedman, JJ.

      Decided January 4, 1873.
    Appeal from a judgment and order.
    The action was to recover the value of a package of jewelry, delivered "by the plaintiffs to the Adams Express Company, to "be transported to Memphis, Tennessee, and consigned to Merriman & Co.
    The Express Company gave the following receipt:—
    “ Adams Express Company, Great Eastern, Western, and Southern Express forwarders.
    “ Mew Yobk, March, 23 d, 1863.
    “ Received of one package, marked J.
    E. Merriman & Co., Memphis, Tenn., which it is mutually agreed is to "be forwarded to our agency nearest or most convenient to destination only, and there delivered to other parties to complete the transportation.
    “It is further agreed, and is part of the consideration of this contract, that the Adams Express Company are not to "be held liable or responsible for the property herein mentioned, for any loss or damage arising from the dangers of railroad, ocean, steam, or river navigation, leakage, fire, or from any cause whatever, unless specially insured by them, and so specified in this receipt; which insurance shall constitute the limit of the liability of the Adams Express Company in any event; amd, if the value of the property above described is not stated by the shipper, the holder hereof will not demand of the ■ Adams Express Company a sum exceeding fifty dollars for the loss or detention of \ or damage to, the property aforesaid. 1'Tor shall claim be made for damage to goods not properly packed and secured for transportation. All articles of glass will be taken at shipper’s risk only, and the shipper agrees that the Company shall not be held responsible for any injury by breakage or otherwise.
    “ For the Company,
    “Dinsmore, Jr.”
    Evidence was given, showing that the Company failed to deliver the package, and that it was lost to the plaintiff.
    The value of the package exceeded fourteen hundred dollars.
    The court charged the jury that “ For the purposes of this action, I will hold, that if you find that the Adams Express Company ham committed gross negligence in the discharge of their duty in forwarding this case of jewelry, that the clause in the express receipt which limits the liability in case of accident by rail, and also the $50 clause, do not exempt them from responsibility for the whole amount of the goods.” And further:
    “Upon the whole evidence, whether it was through the gross negligence of the Adams BJxpress Company that this case of jewelry was lost.’’’’

    The defendants excepted to so- much of the charge, as left it to the jury to determine whether the package had been lost through the gross negligence of the defendants, on the ground that the. plaintiffs had given no evidence to establish gross negligence, the only evidence being that the package had not been delivered.
    The plaintiffs had a verdict, and the defendant appealed.

      Mr. C. M. Da Costa, for appellant.

      Mr. C. B. Smith, for respondent.
   By the Court.—Monell, J.

I have no doubt that the charge of the learned judge was correct, if the evidence of negligence on the part of the carriers was sufficient to go to the jury; and the sufficiency of such evidence is to be ascertained by determining where the burthen of proof lies.

There is nothing in the defendants’ contract which relieves them from liability for loss caused by their, or their servants’, negligence. If one of the exemptions in their agreement, in terms, secured to the defendants exoneration for any neglect, or want of due and proper care ; and if there was neglect, or want of proper care on their part, then their common-law liability attached, notwithstanding the value of the property lost exceeded the stipulated amount, or that the immediate cause of the loss may have been within one or other of the exemptions named in their contract (Simmons v. Law, 3 Keyes, 217).

The only proof of negligence relied on by the plaintiffs, was the presumption arising from the failure to deliver, and if it can be said that such presumption does arise from such failure alone, then the burthen of proof rested upon the defendants ; or, in other words, was shifted to the defendants ; and it becomes incumbent on them to repel the presumption by establishing' that they had exercised due and proper care.

In the recent case of Lamb v. The Cam. & Amb. T. Co. (46 N. Y. R. 271), Mr. Justice Geoveb, in delivering the majority opinion of the court, held that there was no such presumption of negligence. In that case, the loss was by fire, and was, therefore, within one of the express exemptions from liability mentioned in the contract. Under such a state of facts, the court held that the carrier, being relieved from responsibility upon their cont/i'act, was to be regarded merely as a bailer for hire, and liable only for negligence, which negligence must be shown, and could not be presumed from the loss alone.

The case under consideration is, in respect to this question of negligence, entirely analogous to the case of Lamb. In that case, if the loss happened by fire, the carrier was not to be liable. In this case, if the value exceeded $50, the liability was to be limited to that amount.

But in each case, the limit to the liability was held to be unavailable, if the loss was caused by negligence.

I cannot, therefore, distinguish between the cases. If, in the one case, proof of the loss by fire was enough to cast on the plaintiff the burthen of proving negligence, then, in like manner, proof of value in excess of the limitation would shift the burthen from the defendant.

The little earlier case of Burnell v. The N. Y. Central R.R. Co. (45 N. Y. R. 184) which apparently conflicts with the Lamb case, is probably to be distinguished by the fact, that, in that case, there were no stipulated exemptions from liability, and, therefore, no further proof was required to charge the carrier, than the loss or failure to deliver the property to the owner.

If the carrier failed to deliver, it was to be presumed it was through his own fault. Whereas, in the Burnell case, mere proof that the loss was by fire, established a defence, unless it was shown, that the fire was caused by negligence.

But whether the two decisions are reconcilable or not, I think we should consider ourselves bound by the last, and as that very clearly places the onus on the plaintiff of proving negligence, we must hold the charge, in this case, to have been erroneous. There was no presumption of negligence arising from the mere fact of a failure to deliver; and there was no proof of negligence to charge the defendant.

I do not regard the more recent decision of the commissioners of appeals (Belger v. Dinsmore, not reported) as strengthening the Burnell case.

In the Belger case, the General Term, in reversing the judgment, put its decision on the ground, that the special provision in the carrier’s receipt, was a notice merely, and required proof of the assent of the other party. But the commissioners of appeals do not sanction that doctrine, and hold that prima facie, at least, such assent is to be inferred.

Although, therefore, on the trial, an offer by the plaintiffs to prove negligence was ruled out, the question does not seem to have been considered by the Appellate Court. The General Term did not have it before them, as the plaintiff did not appeal, and the commissioners of appeals found another ground for reversing the judgment.

The Lamb case must, therefore, be considered as the controlling decision, and, following it, the judgment before us must be reversed.

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

Barbour, C. J. (concurring).

It is well established that a contract between a common carrier and a person who delivers goods to him to be carried in the line of his business, which provides that the former shall not be liable for the whole value of the goods injured or lost by his gross negligence or wrongful act, or that of his servants, is, pro tanto, void, not only as against] public policy, but because such exemption would, if valid, abrogate and destroy the obligation and contract to carry the goods and deliver them to the consignee, or to pay for them. It would simply be an undertaking on the part of the carrier to keep the goods safely, and transport and deliver them, unless he should see fit not to do so (1 Redfield on Carriers, § 138; Story on Bailm. § 571; 2 Greenl. Ev. § 218 ; Beck v. Evans, 3 Camp. 267; Smith v. Horn, 8 Taunt. 144; Sleat v. Flagg, 5 Barn. & Ald. 343; Wright v. Snell, Id. 350; Guillaume v. The Hamburg & Am. P. Co. 42 N. Y. 212; Cole v. Goodwin, 19 Wend. 251; Lamb v. The Camden & Amboy Tr. Co., 46 Id. 271). That portion of the charge which directed the jury, substantially, to render a verdict for the value of the goods in case they should find they were not delivered in Memphis because of the gross negligence of the defendants, was, therefore, correct and proper. The question remains as to whether the evidence was sufficient to justify the finding.

It is quite true that the burden of proving the carriers’ negligence rested upon the plaintiffs (2 Greenl. JBfo. § 218). But the negligence in this case consisted not in any act done by the defendants, but in their failure or omission to perform the duty with which they had charged themselves as common carriers, and by their contract or receipt. That duty or obligation was threefold : first, to keep the goods safely; secondly, to transport them to the place of destination, and, thirdly, to deliver them there to Merriman & Co.; and the proof given upon the trial, that the defendants had failed to perform those duties, "was primá-facie evidence of negligence (Burnell n. The N. Y. Cent. R. R., 45 N. Y. 184). If no other facts and circumstances favoring the defence had appeared in the case, therefore, the fact that the goods were not delivered would have established the negligence of the carriers conclusively; and, no excuse, or reason, being given by them for their failure to deliver the goods, the jury would probably have been justified .in finding such negligence to have be.en gross. But, of course, the legal presumption of negligence, arising from the mere proof of non-delivery, must be considered as destroyed, if there was sufficient evidence to show that delivery was impossible, because the goods had been lost by fire, or otherwise, as was the fact in Lamb The Cam. & Am. Tr. Co. (supra); and, in that case, the onus of proving that the loss was occasioned by reason of some neglect of the carriers was cast upon the pilaintiffs.

Upon the trial here, it was fully proven that the box, or package, in which the goods were inclosed when delivered to the defendants, with some smaller boxes, which were then in it, was found by the plaintiffs in the coroner’s office, in Brooklyn, several months after the goods were so delivered, the boxes having been opened, and the watches, and other articles originally packed therein, having been extracted and removed. This evidence of the loss of the goods was, doubtless, sufficient to remove the presumption of negligence arising from the proof of non-delivery by the carrier, and rendered it incumbent upon the plaintiffs' to show some negligent omission of duty on the part of the defendants, through or because of which the goods were thus lost. No attempt was made by them to do that, and there is, therefore, nothing in the case tending to show that the goods in question were not stolen from the defendants, notwithstanding all due and proper precautions were taken by them and their servants for the protection and safekeeping of the property. The evidence before the jury, therefore, was not sufficient to j ustify a finding by them, that the defendants were guilty of gross, or any, negligence in regard to the performance of their duties ; and, for that reason, the judgment should be reversed and a new trial directed, with costs to abide the event.


source: Caselaw Access Project

license: Public Domain

text:
    JAMES ROWE, Plaintiff and Respondent, v. SALMON S. STEVENS, Defendant and Appellant.
    The general rule or principle of law which forbids a broker or agent from negotiating as well for the purchaser as for the vendor of property, is founded upon the actual or constructive fraud of an agent, who, by the concealment or the misrepresentation of his employment by one party from the other, wrongfully secures the confidence of each, in the belief that all his (the broker’s) efforts and services are being directed to secure the best bargain for him alone, when, in fact,he is also seeking to advance, or pretending to advance, the interests of the other party to the contract. There is, however, no principle of law which forbids a broker or real estate agent from acting as the agent of both parties, where it is done without concealment or other fraud.
    If both vendor and purchaser employ the same agent, knowing that he is employed by, and is acting for, both, his acts should be upheld, and he is entitled to receive compensation from both parties.
    Before Barbour, Ch. J., Monell and Freedman, JJ.

      Decided January 4, 1873.
    Appeal from a judgment.
    The plaintiff, a real estate agent, was employed by the defendant to procure a purchaser for certain real estate in the city of New York, then owned by the defendant. The plaintiff, pursuant to such employment, procured Winters & Hunt to purchase such real estate, to whom it was subsequently conveyed by the defendant, they conveying to the defendant, in exchange, certain other real estate in said city then owned by them.
    It was proved that the plaintiff had previously been employed by Winters & Hunt, to procure a purchaser of their property, and that upon the exchange being made, he was paid his commission by them. There was also evidence tending to show that the defendant knew, and fully understood, that the plaintiff was acting as the agent of both Winters & Hunt, and of the defendant; and that the defendant, with knowledge that Winters & Hunt had paid their commissions, afterwards promised to pay the plaintiff.
    At the close of the evidence, the defendant moved to dismiss the. complaint, on the ground that a broker (i. e. real estate agent) could not take commissions from both parties.
    The motion was denied, and the defendant excepted. The court charged the jury as follows :
    “As I understand the law to be, as a general rule, a "broker cannot "be employed by "both parties, and collect a fee from each. There may be an exception—there may be circumstances under which two parties would employ a broker to do a joint service, understanding that he would be sufficient for both, as two men may employ a lawyer to draw a contract or agreement, each of them having confidence in him, and they may agree that he shall be paid equally by them. I think a broker can serve both parties, and he can earn and receive compensation from both parties. But, gentlemen, this must be fully understood in the case of a broker. To enable a man to recover, as in this case, it must be understood by all the parties interested. Hunt & Winters, on one side, and Mr. Stevens on the other. They must understand, must be' informed, that he is acting for both, because it is very clear if you employ a broker, you expect he is going to serve you, and not going to serve the other side ; he is going to make the best bargain he can for you. But if you understand he is serving another and yourself, and you agree to it, I think he can recover Ms fee, under such circumstances. That is a fact you have got to find, in addition to finding the defendant employed plaintiff. Ton must find the other additional fact, that Hunt & Winters knew of such employment, and that he was to receive a fee from the defendant for these services. If you find these two facts, you will render a verdict for the plaintiff, for whatever sum you consider he has earned in the exchange of the property.”
    The jury rendered a verdict for the plaintiff for $950.
    The defendant appealed.

      Mr. Ira D. Warren, for appellant.

      Mr. C. Shaffer and C. H. Truax, for respondent.
   By the Court.—Monell, J.

The only question we can examine upon this appeal, arises from the exception to the denial of the motion to dismiss the complaint.

The facts in dispute were settled "by the jury, and are not open to review on this appeal. Nor was there any exception to the charge of the court, which, it must be assumed, was in all things correct.

The question, therefore, is, can a, real estate agent, under such facts and circumstances as are disclosed in this case, claim compensation from each of the parties, to an exchange of property ?

As put to the jury, they were authorized to find, that the defendant knew the plaintiff was acting as the agent of Hunt & Winters ; and that they also knew that he was the acting agent of the defendant. In short, that it was well known that the plaintiff was the agent of both parties, and expected compensation from each.

The general principle which forbids a broker or agent from negotiating, as well for the purchaser as for the vendor of property, is founded on the policy of securing to the principal the best and most faithful services of the agent, which cannot ordinarily be done, if the agent’s efforts are at the same time also directed to making the best bargain for the other party. But the principle has its foundation in the actual or constructive fraud of the agent, who, by concealment or misrepresentation of his other employment, secures the confidence of his principal.

Mr. Justice Story says (Story on Ag. § 31), “ It would be a fraud in a broker to act for both parties, concealing his agency for one from the other, in a case where he was entrusted by both with a discretion as to buying and selling.” And again, “it is plain, that if this mutual agency is concealed, it might operate as a complete surprise upon the confidence of both parties.”

But I am unaware of any principle which forbids a broker or real estate agent from acting as the agent of both parties, where it is done without concealment or other fraud. If, therefore, both vendor and purchaser employ the same agent, knowing that he is employed by, and is acting for, both, I can see no reason why his acts should not be upheld, and be entitled to be compensated by both.

In Cassard v. Hinman (6 Bosw. 8), the contract of the defendant, which he had made through a broker, was repudiated on the ground, that, while the broker persuaded the defendant to employ him as his agent, he was “the secret and fraudulent agent of the other party, to induce the defendant to make the contract.”

But there cannot be a fraud, if all the parties are acting openly, in good faith, and without concealment.

In Dunlap v. Richards, 2 E. D. Smith, 181, which was an action by an agent who had been employed by-both vendor and purchaser, to recover compensation from one, the ground upon which the law rejects such dual employment is stated to be the secrecy of the employment, and the concealment of it from one and the other.

And in Pugsley v. Murray (4 E. D. Smith, 245), it is held, that compensation may be taken from both parties, if, where with full knowledge of the facts that the broker was employed by both and expected pay from both, the party actually promised to pay.

Although there was some evidence of a promise to pay mad e by the defendant, with a full knowledge of the facts, the case was not put to the jury on that ground. But the promise might be available as showing a ratification of the acts-of the plaintiff, after a full knowledge of all the circumstances, and such ratification would render the original employment obligatory upon the defendant (Story on Agency, § 210).

Upon the question submitted to the jury under the charge of the court, they have found, that it was mutually understood that the plaintiff was acting as agent for the defendant, and for Hunt & Winters, and expected pay from each ; and in considering the question raised by the motion to dismiss the complaint, we must assume the facts to be as found by the jury; and those facts disclose a fair and open transaction, which the law will sanction and uphold.

The evidence relating to the title to the lots, which was objected to by the defendant, was probably immaterial to the issues between the parties. But we cannot see that it could, or did, work any injury to the defendant.

The judgment should be affirmed.

Barbour, C. J. (concurring).

Although I concur in the general reasoning and conclusion of my brother Monell, I prefer to put my decision in the case upon the following grounds:

The class of persons in this city who are employed by owners of lands to find a purchaser for them, or by those desirous of purchasing to procure a vendor for them, as is shown by the evidence to have been done in this case, are not in any legal or proper sense brokers, nor are they employed to act as such, although they are usually called by others, and style themselves so, and are in the habit of charging a percentage or broker’s commission for their services. For, while a broker is one who makes a bargain for another, and receives a commission for so doing (6 Bing. 702, 706), an agent, employed among merchants and others to make contracts between them, for a compensation commonly called brokerage (Russell on Factors, 3, 4 ; Story on Agency, § 22), no bargain or contract whatever is made by those who act as middle-men or intermediaries between vendors and purchasers of lands, nor, as the business is usually conducted, are they employed by either party to make a. bargain or contract. They are employed for the mere purpose of finding a person who will buy the land of their principal, or sell to him such land as he may want, and their compensation is earned whenever their principal purchases the land from, or sells it to, the person so "brought to him. The rule, therefore, which makes it unlawful for a "broker to act as the agent of both parties in making the same purchase and sale, does not apply to this class of intermediaries, nor does its reason. An employment by a proposed vendor to find a purchaser of his land, is not in any manner inconsistent with a like employment by another to procure a vendor who will sell land to him. ITo harm can result to either, because of such double employment, nor from the fact that the person so employed receives a compensation from each; but, on the contrary, it may well be supposed that the services of a man who has the names of both purchasers and vendors upon his list of customers or principals, are the more valuable, because of that fact; and where that is the case, and he is the procuring cause of- a sale and purchase between them, there can be no good reason why he should not have from each such a reasonable compensation as he would be entitled to demand from either, if the sale or purchase by a customer was made to or from a stranger. It follows, that the fact that the plaintiff was employed by both the purchaser and seller in this case, as an intermediary to bring them together, does not constitute a bar to his recovery against the defendant.

Note.—This case was before the court in May, 1872, on an appeal from an order setting aside the verdict, and granting a new trial. See Vol. 84, page 486.—Reporters.


author: By the Court.—Freedman, J.

text:
    WILLIAM HEINMULLER, Plaintiff and Respondent, v. NANCY GRAY, Administratrix, etc., of HIRAM B. GRAY, deceased, Defendant and Appellant.
    In an action for a wrongful taking and conversion of personal property brought against two defendants, who are jointly and severally liable for the wrong, and in case of the death of one of the defendants before final judgment, the action survives against the administratrix of the deceased, and can be revived against her.
    Before Barbour, Ch. J., Monell and Freedman, JJ.

      Decided January 4, 1873.
    Appeal from order.
    The action was brought against John C. Abbott and Hiram B. Gray, as indemnitors of the sheriff, for damages in trespass in taking and carrying away plaintiff5 s goods under process of court directed against a stranger. After trial and verdict, judgment was entered on June 10th, 1871, in favor of the plaintiff, for $2,481-^%-. On defendant’s appeal to the General Term, the judgment was reversed and a new trial ordered, with costs to abide the event. About the 27th day of January, 1872, the defendant, Hiram B. Gray, died, and Nancy Gray was appointed administratrix of the estate of the deceased, and entered upon her duties as such.
    Upon the pleadings and an affidavit, showing the foregoing facts, and that no new trial had been had, and no order of revivor had been made prior to the application then about to be made, the court at Special Term, on plaintiff’s motion, made an order, that the action be revived against Nancy Gray, administratrix of Hiram B. Gray, one of the defendants, deceased, and that Nancy Gray, administratrix, etc., appear and answer the complaint herein, within eighty days from the service of a copy of this order upon her, or that, in default thereof, the plaintiff may apply to the court for an order entering her appearance, and directing the action to stand revived and continued against her, as administratrix, etc., and that the answer of said Hiram B. Gray he then deemed the answer of said administratrix.
    From this order the administratrix appealed.

      Abram Wakeman, for appellant.

      Stephen B. Brague for respondent.
   By the Court.—Freedman, J.

The appellant’s claim, upon which her counsel rested his argument, that the order appealed from is illegal, for the reason that the action cannot he continued against her, is not well founded.

Section 121 of the Code provides, that no action shall abate by the death of a party, if the cause of action survive and continue. The legal effect of this provision, in its application to the case of the death of a defendant, generally, is, that the action is not abated, but merely suspended by such death, if an action for the same cause may be maintained against the personal representatives of the deceased.

The case at bar is an action known under the old practice as an action of trespass, and although there are no provisions in the Code that either expressly, or by any reasonable intendment, give a right to maintain such an action, for such a cause, against the personal representatives of a wrong-doer, yet such right exists by virtue of the following provisions of the Revised Statutes, viz. : Title 5 of chap. 6 and part 2 of the Rev. Stat., entitled “ Of the Rights and Liabilities of Executors and Administrators ” provides, that any person, or Ms personal representatives, shall have actions of trespass against the executor or administrator of any testator or intestate who, in his lifetime, shall have wasted, destroyed, taken or carried away, or converted to his own use, the goods or chattels of any such person, or committed any trespass on the real estate of any such person (2 Rev. St. 114, § 5; 3 Rev. St. [5th Ed.] 202, § 5). And the statute concerning suits "by and against executors and administrators, being the first article of title 3, chapter 8 of part 3 of the Revised Statutes, further provides, that for wrongs done to the property, rights, or interests of another, for which an action might be maintained against the wrong-doer, such action may be brought by the person injured, or after Ms death by his executors or administrators, against such, wrong-doer, and after his death against his executors of administrators, in the same manner and with the like effect in all respects, as actions founded upon contracts (2 Rev. St. 447, § 1; 3 Rev. St. [5th Ed.] 746, § 1). The second section of the last-named act excepts only actions for slander, libel, assault and battery, false imprisonment, and actions on the case for injuries to the person of the plaintiff', or to the person of the testator or intestate of any executor or administrator. But even these do not abate after verdict (Code, § 121).

The authorities cited by appellant’s counsel to show that the action cannot be continued, are not in point. In Hume v. Brett, 35 Barb. 596, the court simply held that the rule of the common law, that in case of the death of one of several plaintiffs, who sue as tenants in common, the action can only be continued in the name of the survivor, has not been abrogated or altered by the modern legislation of this State.

In Hopkins v. Adams, 5 Abb. 352; Potter v Van Vranken, 36 N. Y. 626, and Lahy v. Brady, 1 Daly 443, it was held, that the action for the recovery of personal property, formerly styled replevin, survives the death of the plaintiff, but does not survive the death of the defendant. The principle to be deduced from these decisions is, that, inasmuch as the effect of a judgment in favor of the plaintiff in replevin, and in the action substituted by the Code, is to bind the defendant personally for the re-delivery of the property, no action founded upon defendant’s tortious detention can be continued after the death of such defendant against his personal representatives. To be liable in that form of action, the tortious detention must be the result of the personal acts of such representatives.

In People n. Gibbs, 9 Wend. 32, the declaration was in assumpsit under 2 R. S. 513, 514, by which statute' sheriffs are made liable to the people of the State in that form of action for neglect to return a warrant issued against a tax collector. In fact, the action was in the nature of an action on the case against the deceased sheriff’s executors for the default of the sheriff’s deputy, and consequently, in substance, ex delicto. The court, after noticing 1 R. S. 311, 312, giving trespass as the only statutory provision passed in derogation of the common law, arrived at the conclusion that the case fell within the rule of the common law, which provided that when the cause of action is ex delicto, and not beneficial to the estate, no action lies against the representatives of the estate.

But in Hopkins v. Adams (supra), the effect of the provisions of the Revised Statutes first above referred to, was fully discussed, and this court held, that, although an action in the nature of replevin did not survive the death of the defendant, an action sounding in damages only, and in which the judgment, when recovered against an executor or administrator, is to be paid out of the estate in due course of administration, does survive and may be continued against defendant’s representatives.

Unless there is force in the suggestion of appellant’s counsel, that that doctrine is to be strictly confined to the case of the death of a sole wrong-doer, and that it cannot be extended to a case of the death of one of several wrong-doers, and that in the latter case such death can only be suggested on the record, and the action can only proceed against the surviving defendant, under 2 Rev. St. 386, § 1, we see ho reason why we should apply a different rule to the case now before us.

If the action were founded upon the joint liability of the original defendants arising out of a contract, express or implied, the position of appellant’s counsel would be correct. In such case, the action, by virtue of the statute last referred to, would survive against the surviving defendant, and no action would lie against the appellant in her representative capacity, except upon proof of the insolvency of the surviving defendant, and that plaintiff had exhausted his remedy against him. (Voorhis v. Child’s Executors, 17 N. Y. 354; Fine v. Righter, 3 Abb. N. S. 385.) But this rule applies neither to parties severally liable for a debt by express contract, nor to parties jointly and severally liable as wrong-doers.

The original defendants in this case were sued as joint tortfeasors, and as such their liability is joint and several. If they had been sued separately, an answer by one pleading a former recovery against the other, would not have been good, unless it also averred actual satisfaction. It is true, that, being sued jointly, the action, upon the death of either, becomes incapable of being continued as a joint action against the survivor and the representatives of the deceased. But there can be no doubt that the action, if severed by the death of one, survives against the other, and that under section 274 of the Code, it may be continued against the representatives of the deceased as a separate action, as was suggested in Gardner v. Walker, 22 How. 405; Union Bank v. Mott, 27 N. Y. 633 ; and McVean v. Scott, adm., 46 Barb. 379.

The action, therefore, was rightfully continued against the appellant, and, no question having been raised as to the form of the order as entered, the order appealed from must be affirmed. In order to be in a position to try the case against the appellant as a separate action, it may, perhaps, become necessary for plaintiff to make a further application. But as that question is not properly before us, we express no opinion upon it.

Order affirmed, with costs.


author: By the Court.—Barbour, C. J.

text:
    LAVINIA C. H. DEMPSEY, Plaintiff and Respondent, v. JAMES D. HALL, Defendant and Appellant.
    In an action brought by a landlord against a tenant, to recover damages for injury or waste upon the premises leased, the complaint alleged, in substance, that plaintiff was the owner of the premises, and defendant held and enjoyed the same as a tenant, and had wrongfully injured the same, to the damage and injury of the reversionary interest of the plaintiff.
    The defendant, in his answer, denied each and every allegation of the complaint, thus placing in issue, not only the injuries complained of, but the plaintiff’s ownership of and title to the premises, and the tenantcy of the defendant; and on the trial, plaintiff was compelled to, and did, prove her title to the premises, and the lease of the same to the defendant, and also damages to the amount of $00, for which plaintiff had a verdict. The defendant claimed to recover his costs in the action, and they were taxed by the clerk at $195.03, and judgment entered and docketed against plaintiff for that sum, less the amount of the verdict.
    On motion to Special Term, this judgment and taxation was vacated, on the ground that defendant was not entitled to the judgment, but that plaintiff was entitled to a judgment for the amount of the verdict and costs.
    On appeal from this order to the General Term : Held, That plaintiff is entitled to costs on the verdict, under 304th section of the Code of Procedure, a claim of title to real estate having arisen on the pleadings.

      The issue raised by defendant in his denial of the ownership of the property by plaintiff, was a material one, and brings the case within the letter and spirit of the 304th section of the Code.
    Before Barbour, Ch. J., Monell and Freedman, JJ.

      Decided January 4, 1873.
    Appeal from an order of Special Term.
    The facts in the case appear in the opinion of the court.

      Doolittle & Crittenden, for appellant.

      Solomon F. Higgins, for respondent.
   By the Court.—Barbour, C. J.

The complaint in this action alleged, that about the 30th of April and the 1st of May, 1869, the plaintiff was the owner of certain premises in this city, and the defendant held and enjoyed the same as her tenant, and that the defendant there wrongfully injured the premises, by cutting down and destroying the ceilings, partitions, etc., to the injury of her reversionary interest, and to her damage, to the amount of $2,000. The answer denied each and every allegation of the complaint, thus putting in issue not only the injuries complained of, but the defendant’s tenantcy, and the title of the plaintiff as owner. On the trial, therefore, the plaintiff was compelled to, and did, prove her title and her lease to the defendant, and also proved that the defendant injured the building, as charged in the complaint, to the amount of thirty dollars, for which the plaintiff had a verdict. The defendant’s costs were taxed by the clerk at $195.03, and, thereupon, a judgment was docketed against the plaintiff for $165.03, being the amount of the costs less the thirty dollar verdict. The plaintiff’s counsel then moved before the Special Term for, and obtained, an order vacating the judgment, on the ground, as expressed "by the learned judge in the order itself, “that the same was for the costs of this action, while the defendant was not and is not entitled to costs, "but, on the contrary thereof, the plaintiff is entitled to costs under the 304th section of the Code of Procedure, a claim of title to real property arising on the pleadings.” The matter now comes "before us on an appeal from that order.

As the plaintiff’s claim to recover for the injury done to the premises was founded, solely, upon her allegation of ownership, the issue raised "by the denial in the answer, was a material one. The case, therefore, is within the spirit as well as the letter of the first subdivision of the 304th section of the Code, which declares that the plaintiff shall have costs upon a recovery, when a claim of title to real property arises on the pleadings.

The order must he affirmed, with costs.


text:
    HERMAN R. BALTZER, el al., Plaintiffs and Respondents, v. ALBERT H. NICOLAY, Defendant and Appellant.
    The defendant sold to plaintiffs certain stocks at auction, without disclosing his principal, and after sale refused to deliver the same. Defendant, in his answer to the complaint, alleged that he was employed to sell the stock (naming his principal), and did sell it to the plaintiffs, and the answer then alleged that no written contract or memorandum of such sale or purchase sufficient to bind the defendant—to bind the defendant within the terms of the statute—was made at the time of sale.
    Held—That the admission in the answer, that the stock in question was “ sold" by defendant, must be construed, under the rules of pleadings, as an admission that everything was done by defendant that was necessary to be done, to constitute a valid sale of the stock to plaintiffs, including, of course, the entry in writing, required by the statute. In the absence of evidence to the contrary, will it not be presumed that the auctioneer preformed the duty imposed upon him by the statute, and made the proper entry of the sale upon his book ?
    The sale, thus admitted, should have been found directly and positively by the referee as an established fact, and without it appears from his report that he had decided, as a fact, that such sale was made, his legal conclusion that plaintiff should recover, would be erroneous.
    It appearing, several times in the findings of fact of the referee, that the1 word “sale,” in connection with the parties and the transaction, was' used in such a manner, that it might be reasonably inferred that he had decided that the stock was actually sold by the defendant to the plaintiff,, it must be held to be sufficient.
    Before Barbour, Ch. J., Monell and Freedman, JJ„

      Decided January 4, 1873.
    Appeal from judgment on referee’s report.
    The facts and the points of law in the case appear fully from the opinion of the court.

      Wm. Henry Anthon, for appellant.

      Charles M. Da Costa, for respondents.
   By the Court.—Barbour, C. J.

This action was brought to recover the difference between the actual value, and the contract price of five hundred shares of Brooklyn City ¡Railroad stock, which the complaint alleges were sold at auction by the defendant, an auctioneer, to the plaintiffs, acting through their brokers, Eggleston & Smith, and which he failed and refused to deliver on tender and offer of payment. The complaint alleges in effect, among other things, that the defendant was authorized by Belmont & Co. to sell the stock in question at a limited price, not less than two hundred and ten per cent.; that the defendant did not disclose the name of his principals at the sale, and the plaintiffs were, therefore, compelled to rely in making their purchase upon the personal responsibility of the defendant. The defendant avers in his answer that he was employed as an auctioneer by Belmont & Co., to sell the stock in question ; that Belmont & Co. did, through him, sell it to Eggleston & Smith, acting as brokers for the plaintiffs, and that such stock was not sold by the defendant upon his own account. The answer also alleges that no written contract or memorandum of such sale and purchase, sufficient to bind the defendant within the terms of the statute, was made at the time of the said sale. The referee before whom the action was tried, found and reported, inter alia, that Belmont & Co., in giving instructions to the defendant to sell the stock, limited him to the price of two hundred and ten per cent. ; that the plaintiffs employed Eggleston & Smith as brokers, to purchase the stock for them; that Eggleston “ attended the sale, and bid off and had struck •down to him on behalf of the plaintiffs in the legal and usual manner at public auction,” the stock in question; but he did not find and report that any such entry as is required by the statute (2 R. S. 533, § 39) was made by the auctioneer at the time of the sale, nor even, in terms, that the stock was sold by the defendant to or for account of the plaintiff. Upon those facts, with the further facts in regard to offer of payment, refusal to deliver, etc., also found as laid in the complaint, the referee decided, as a conclusion of law, that the plaintiffs were entitled to recover the difference between the purchase price of the stocks and their actual value, and thereupon the judgment appealed from was entered.

Several exceptions were taken to the report of the referee, upon the ground that he had omitted to find certain facts; but as the case does not show that he was requested by the defendant’s counsel so to find, those exceptions must be overruled. It is also easy to see that the referee’s finding that the defendant was limited in his power of sale, by the instructions of Belmont & Co., was fully justified by the positive testimony of two -competent witnesses, and, therefore, the exception in that regard cannot be sustained. The exception taken to the legal conclusion of the referee, however, requires more consideration. .

As no notice was given by the auctioneer that he was not himself the owner of the property offered for sale, it cannot properly be claimed by the plaintiffs that they were in any way defrauded or injured because of the fact that the defendant was not authorized by Belmont & Go. to sell the stock for the price at which it was struck off. Their right to recover rests wholly upon the fact that the defendant sold to them the stock in question as his own. It is true, the complaint alleges that the defendant acted in the sale of the stock as the agent of Belmont & Go., but exceeded his instructions. That allegation, however, did not constitute or tend to constitute a substantive cause of action, but was, probably, inserted in the complaint for the mere purpose of enabling the plaintiffs to prove upon the trial, that the stock was not only struck off, but that such an entry or statement of the rule as the statute requires was made by the auctioneer, although containing the name of Belmont & Co., as the sellers, so as to bring the case within the principle covered by the decision of the Court of Appeals in Bush v. Cole, 28 N. Y. 261. Be that as it may, however, it is quite clear that the legal conclusion in question was erroneous, if the plaintiffs had failed upon the trial to establish the fact that the stock was actually sold by the defendant to the plaintiffs, nor can the judgment be upheld here, unless that fact appears, as so established, in the papers laid before the court on appeal.

It is not necessary to consider whether the defendant must not, as matter of law, be presumed, in the absence of evidence to the contrary, to have performed the duty imposed upon him by statute, and made the proper entry of the sale upon his book, at the time ; for the admission in the answer that the stock in question was “sold” by the defendants, must "be construed, under the well-known rules of pleading, as an admission that everything was done "by him that was necessary to constitute a valid sale, including, of course, the entry required "by the statute, and which, alone, gave validity to the sale, notwithstanding the general provisions of the statute of frauds (See 2 R. S. 136, § 4).

The fact of the sale, thus established upon the trial, ought to have been found directly by the referee ; for it was so important that without it the plaintiffs would not have been entitled to recover, and, therefore, the legal conclusion of the referee would have been erroneous (Nelson v. Ingersoll, 27 How. Pr. 1; Rogers v. Beard, 20 Id. 98; Tomlinson v. The Mayor, etc., 23 Id. 452; Leffler v. Field, 33 Id. 385; Sinclair v. Talmage, 35 Barb 602). But he did not, in terms, find that fact, but only found directly, that the plaintiffs’ agent was the highest bidder for the stock, and that it was struck off to him; facts which, of themselves, are not sufficient to establish a legal sale. In his findings of fact, however, he several times uses the word sale, in connection with the transactions between the plaintiffs’ agent and the defendant, at the time of, and subsequent thereto, in such a manner that it may reasonably be inferred he had decided, as the fact undoubtedly was, that the stock was actually sold by the defendant; and that must be held sufficient to sustain the referee’s legal conclusion, notwithstanding the exception.

No other exceptions being presented, the judgment should be affirmed, with costs.


author: By the Court.—Sedgwick, J.

text:
    AUGUST BELMONT, Plaintiff and Respondent, v. ELIAS PONVERT, Defendant and Appellant.
    An agreement with a judgment creditor that certain acts of forbearance on his part, “ shall not prejudice the lien of his judgment, or his right to payment out of the future proceeds of the property, but that said judgment shall remain and continue liens upon the property, and entitled to payment out of the future proceeds thereof,” did not, by the terms stated, give to the judgment creditor any interest oí right for the payment of his lien out of rents of the premises.
    By the word “ proceeds,” under the agreement, is meant the amount of money that in the future would be obtained for the property upon a disposition of it by “ sale.” Dow ». Hope Ins. Co., 1 Hall, 166; Dow v. Whetton, 8 Wend. 160, support such a definition.
    Before Monell, Curtis, and Sedgwick, JJ.

      Decided January 7, 1873.
    Appeal from a judgment entered at the Special Term, •and motion for a new trial.
    On the 26th of March, 1846, Daniel .E. Tylee made an .assignment, for the "benefit of his creditors, to Julian •Chastelain, of the firm of Chastelain & Ponvert, and Daniel H. Turner.
    Chastelain & Ponvert, and also Philo S. Shelton, were creditors of Tylee.
    A suit was pending, brought by Jane Dempsey, to recover the real estate claimed to belong to Tylee.
    The defence of this suit was assumed by Chastelain & Ponvert at or shortly after the assignment, and expenses were incurred in such defence, and in opening an adverse decree, obtained by default, and in obtaining the substitution of a new attorney.
    On the 6th of January, 1847, Shelton and Ponvert purchased a decree of foreclosure of a mortgage held by George Lovett.
    Shelton and-Ponvert also purchased the certificate of the sale of the same premises, made September 13, 1848, under a judgment in favor of Brower & Nelson.
    The defendant, Belmont, held judgments, under which he was entitled to redeem the premises.
    If Jane Dempsey succeeded in establishing her claim to the premises, upon which the mortgage and the judgments were liens, neither of the parties were likely to be paid anything. All were, therefore, interested in the defence of that suit.
    In this state of the affair, the agreement mentioned in the complaint, and admitted in the answer, was entered into on the 13th December, 1849, and purports to have been made between the plaintiff, the defendant, Elias Ponvert, and one Philo S. Shelton, and recites the recovery by the plaintiff, and the docketing of two judgments against Daniel E. Tylee and James J. Mapes— one on the 13th January, 1846, for $5,550^-^, and the other on the 28th February, 1846, for $7,871TW. The recovery and docketing of another judgment against the same parties by Brower & Neilson, for $1,163^, on the 17th February, 1846. It further recites that the judgments were claimed to be liens on certain premises claimed to belong in fee to Tylee, but that the title of Tylee was disputed by one Jane Dempsey, and that the interest of Tylee was subject to a mortgage dated June 13, 1843, executed by him to George Lovett, to secure $12,000 and interest, upon which a decree of foreclosure had been made about June, 1846, but which decree had not been executed; and that a sale had been made under execution upon the Brower & Neilson judgment of the interest of Tylee in the premises. It then proceeds to state that Philo S. Shelton and Elias Ponvert were the owners by purchase and assignment of the decree upon the mortgage, and of the Brower & Neilson judgment, and of the certificate of sale under the same, and were then, in conjunction with the firm of Chaste-lain & Ponvert, defending said suit of Jane Dempsey, and litigating the same, for the purpose of establishing Tylee’s title.
    Such, then, being the situation of the parties, as above recited, and the additional fact existing, which appears from the evidence in the cas.e, that Chastelain & Ponvert, of which firm Ponvert was a member, were creditors at large of Daniel E. Tylee to the extent of $200,000 (fol. 139), the parties make the covenants in the agreement contained. These covenants, on the part of Shelton and Ponvert, are as follows: That “in consideration of the premises, and of said plaintiff forbearing to exercise the right of redemption from said sale, under the Brower & Neiison judgment, and forbearing to sell under his own judgments,” they covenant and agree ‘■‘■that Ms forbearance to redeem shall not prejudice the lien of his judgments, or either of them, or his right to the payment of the said judgments, or either of them, out of'the future proceeds .of the said property, but that said judgments and decree shall remain and continue liens upon the property, and entitled to payment out of the future proceeds thereof (if sufficient for the purpose), in the following order of priority, namely:
    “ First. The mortgage decree.
    “ Second. The first judgment of August Belmont.
    “ Third. The Brower & Neilson judgment.
    “ Fourth. The second judgment of Belmont.
    “ Fifth. The balance of said proceeds, if any, to Chastelain & Ponvert and said Shelton.”
    The agreement then contains a mutual covenant between the parties that the Dempsey suit “ should be litigated at the joint and equal expense of Shelton and Ponvert and Belmont, and that each should bear and pay one-half of all costs and counsel fees that had been incurred and paid by Shelton and Ponvert and Chaste-lain & Ponvert since the defence thereof was assumed by said Chastelain & Ponvert, and also all counsel fees and expenses thereafter to accrue until the final termination of the litigation.”
    It was also by said agreement further stipulated and agreed that neither of said judgments, nor the said mortgage decree, nor the sheriff’s certificate, should be used by either of the parties to the prejudice of the other, nor otherwise than for the purpose of perfecting title to the said premises, for the purpose of carrying out said agreement, and cutting off other liens and encumbrances thereon.
    Chastelain is dead.
    Shelton parted with his interest to Taylor, in 1859, and Taylor assigned to Ponvert in 1860. The costs and expenses were, however, paid by Chastelain & Ponvert, and by Ponvert after Chastelain’s death.
    The action was brought in October, 1860, to compel a sale of the premises in question, and payment of plaintiff’s two judgments from the proceeds.
    It was tried at Special Term, January, 1863, before the Hon. J. 8. Bosworth, and a judgment or decree entered on his decision on the 11th of May, 1863.
    On the 19th March, 1865, upon the plaintiff’s own motion, an order was made setting aside this judgment, and permitting plaintiff to amend his complaint by inserting allegations of the receipt of rents by defendants, and a claim for the application of the same in favor of plaintiff.
    The amended complaint was served January 30, 1866.
    The answer thereto was served 17th March, 1866.
    The action was tried at Special Term before the Hon. Samuel Jones, without a jury, May 30, 1866.
    It was decided by his Honor, Judge Jones, on the 21st February, 1871.

      Judgment for plaintiff was entered September 4, 1871.
    The learned judge of the Special Term held among other things, that plaintiff was entitled to an interest in the rent of the premises in question. This statement, and the opinion of the court, fully shows the points adjudicated upon.

      W. W. Macfarland, of counsel, for plaintiff.

      C. W. Sandford and Abm. Lawrence, Jr., for defendant.
   By the Court.—Sedgwick, J.

We are of opinion that the learned court below erred in adjudging that the plaintiff was entitled to an interest in the rent of the premises in question. On this ground the judgment must be set aside.

Before the execution of the agreement in which the plaintiff rests, he had, by virtue of the judgment he owned, only a general lien upon the house and lot in question. He had no estate or interest in the land, and no right to the rent. The agreement did not convey to the plaintiff any right in the land, or provide that he should in any contingency be entitled to any. It only provided, in behalf of the plaintiff, that the lien he held should be preserved and then paid out of the future proceeds of the property. If the term “proceeds” included rent, then the agreement gave him so much of that as might be necessary to pay the judgment he held, but not a proportion of the rent.

We agree with the learned judge below, that “proceeds,” under the agreement, meant the amount of money that in the future would be obtained for the property upon a disposition of it by sale. The observations in the cases of Dow v. Hope Ins. Co., 1 Hall, 166, and Dow v. Whetten, 8 Wend. 160, in determining the meaning in a policy of insurance of the words “proceeds of a cargo,” support such a definition. Therefore, under the agreement, the plaintiff has no right to payment of his lien out of the rents of the premises.

The court was correct in not taking proof, as to whether any, or what expenses had been paid by the defendants in defending the Jane Dempsey suit. The answer did not claim, that, by the plaintiff’s agreement to contribute to the expenses of defending that suit, the defendant was entitled to have judgment in this action by way of counter-claim in the amount the plaintiff should have contributed, or that upon a distribution of the proceeds of the property under the agreement, the defendants should be allowed to obtain out of the plaintiff’s share the amount of the price he was bound to pay. On the contrary, the answer specifically stated that ‘£ a suit is now pending to recover the same, which was commenced prior to this action.” The answer then sets up in bar of this action, that the plaintiff, “ whilst refusing to contribute to or towards said expenses of said litigation, and refusing to pay his proportion thereof, cannot claim any right or interest in the proceeds thereof.”

The plaintiff’s right to payment of his judgment out of the proceeds of the property, was not made by the. agreement dependent upon his payment of his share of the expenses, any more than his obligation to pay-a share of the expenses depended upon his receiving from the proceeds the amount of his judgment. The defendant, not having sought an amendment of his answer, could not use the agreement by plaintiff to pay part of the expenses for any other purpose than that set out in the answer.

A new trial must be granted, with costs to the appellant to abide the final disposition of the question of costs, after the new trial. Before the new trial shall be had, the defendant will have opportunity to have his right to amend his answer upon just terms examined and determined.


author: By the Court.—Monell, J.

text:
    THE MERCHANTS’ EXCHANGE NATIONAL BANK OF THE CITY OF NEW YORK, Plaintiff and Appellant, v. THE COMMERCIAL WAREHOUSE COMPANY OF NEW YORK, Defendant and Respondent.
    There was a demurrer to the complaint and judgment at Special Term sustaining the demurrer, afterwards sustained by the General Term. The Court of Appeals reversed this judgment, and ordered judgment for the plaintiff, unless within twenty days the defendant shall answer the complaint, and pay the costs of the action from the time of putting in the demurrer.
    The plaintiff moves the court for an extra allowance by way of costs to him, in pursuance of section 809 of the Code, such extra allowance being understood to be a part of the costs required by, to be paid by the defendant, as a condition of being permitted to answer, and not as costs to be included in the final judgment.

      jHeld, That the extra allowances under the Code (§ 309) are intended to be a part of the final costs in the action, and as such to be inserted in the entry of judgment. It was not designed to give them at any stage of the action whenever the dourt might impose the payment of costs as a condition. Costs thus imposed are those particularly specified in the sections of the Code, fixing the rate recoverable, and follow, of course, to the party entitled to the same, and require no order of the court.
    The Court of Appeals has ordered judgment for plaintiff, unless, etc. If the defendant avails himself "of the permission to answer, there will be no judgment, and the case will stand for a future trial.
    As there must be a recovery or entry of a judgment to authorize the extra allowance, this motion was premature, and was properly denied.
    The following cases cited and considered as applicable : McQuade v. N. T. & E. R. R. Co., 11 How. Pr. S. 370; Bostwick «. N. T. & E. R. R. Co., 17 Id. 456.
    Before Monell, Sedgwick, and Van Vorst, JJ.

      Decided February 1, 1873.
    Appeal from an order.
    There was a demurrer to the complaint, which was sustained at the Special Term, and affirmed at the General Term. On appeal to the Court of Appeals, the judgments of the Special and General Terms were reversed, and judgment ordered for the plaintiff on the demurrer, unless the defendant, within twenty days after filing the remittitur in this court, shall answer the complaint, and pay the costs of the action from, the time of putting in the demurrer.

    A motion was made for an extra allowance of costs, which was denied, and an appeal taken to the General Term.

      Mr. S. P. Nash, for appellant.

      Mr. A. F. Smith, for respondent.
   By the Court.—Monell, J.

The decision of this motion at the Special Term was put upon the ground of want of power at the present stage of the action to grant an extra allowance of costs, and not that it was not a proper and suitable case for an allowance, ffo question of discussion is therefore involved, and we are asked to review the order on the sole ground stated.

On that ground the order is appealable.

It is understood that the extra allowance asked for was to be a part of the costs required to be paid as a condition of being permitted to answer, and not as costs to be included in the final judgment.

The Code (§ 303) provides that there may be allowed to the prevailing party, upon the judgment, certain sums, by way of indemnity, for his expenses in the action, which allowances are in the act termed costs.

Section 304 prescribes the costs, allowed, of course, to a plaintiff, upon a recovery in certain specified actions. And section 307 prescribes the rate of costs.

Then follows section 308, which provides, that, in addition to the foregoing allowances of costs, there shall be allowed to the plaintiff in certain specified actions a certain percentage upon the recovery, and (§ 309) “in difficult and extraordinary cases, where a defence has been interposed, or in such cases where a trial has been had, the court may also, in its discretion, make a further allowance to any party of,” etc. And the clerk is required (§ 311) to insert in the entry of judgment the sum of the allowances of costs, as provided.

I think the fair construction' of the Code is, that the extra allowances of costs are to be a part of the final costs in the action, and as such are to be inserted in the entry of judgment. It was not designed to give them at any stage of the proceedings where the court might impose the payment of costs as a condition. Such costs are particularly specified in the section, fixing the rate recoverable, and follow of course to the party entitled, and require no order of the court.

To authorize the allowance in any case, there must be a defence interposed, or a trial had. There may be a variety of trials. An examination by the court of the questious of law, is a trial (Place v. Butternuts W. & C. Manf. Co., 28 How. P. R. 184) as well as the determination of questions of fact by a jury. Therefore, for the purpose of securing a trial fee, the argument of a demurrer to a pleading is a trial immediately within the codifiers’ definition, being a judicial examination of the issues (whether of law or fact) between the parties (Code, § 252).

But th,e trial, whatever it may be, and at what stage soever it may be had, must result in a final judgment in favor of the successful party; that is, it must dispose of the issues in such a manner that a final judgment can be rendered, before the successful party can claim an extra allowance of costs. If there is anything which can arrest the entry of final judgment, reserved to the defeated party, it cannot be said, until that right terminates, that the trial has resulted in a final judgment.

Therefore, where a new trial is granted, an extra allowance, made on the first trial, cannot he secured. It falls with the reversal of the judgment.

It was not intended, I think, to make more than one extra allowance to the same party in any action. If the design was otherwise, it seems to me that the sections would have heen more specific, and would have provided for the application at different stages of the proceedings. In which case, the provision requiring the clerk to insert the allowances in the entry of judgment, would have heen omitted.

There are several decisions holding that extra allowances can he allowed only on a judgment (Hicks v. Waltermire, 7 How. Pr. R. 370; McQuade v. N. Y. & E. R. R. Co., 11 Id. 434; Bostwick v. Tioga R. R. Co., 17 Id. 456).

In McQuade v. N. Y. & E. R. R. Co. (supra), the plaintiff had a verdict, and was granted an extra allowance. A motion for a new trial was denied, and judgment entered. The defendant appealed, and a new trial was granted, on condition that defendant “paid the costs of the second trial.” It was held hy this court, at General Term, that the extra allowance was no part of the costs required to he paid.

But Bostwick v. Tioga R. R. Co. (supra), a General Term decision of the Supreme Court decides that the allowance can he given only upon recovery of judgment.

But it is claimed in the case before us, that hy the decision of the Court of Appeals, and the entry of the remittitur in this court, the plaintiff has obtained a judgment. I do not, however, so regard it. That court has ordered judgment for the plaintiff, unless, etc. If the defendant avails himself of the permission to answer, then there will he no judgment whatever, and the case will stand to he tried hereafter, upon the issues between the parties.

Upon the construction of the Code, therefore, that there must he a recovery of judgment to authorize the ■ extra allowance, the motion in this case was premature. If the defendant complies with the condition imposed, of paying costs and answering, then there is no such recovery of judgment as is contemplated in cases of actual judgment. Any other construction would give to the plaintiff, in the present stage of the case, such an allowance, estimated by the amount involved in the controversy, as the court in its discretion might award; and at the end of the litigation, the right to another allowance would not be impaired.

I think the decision of the judge at Special Term was correct, and that the order should be affirmed, with costs,


text:
    WILLIAM H. TALMAGE, Plaintiff and Appellant, v. JOHN WHITE et al., Defendants and Respondents.
    The plaintiff brought this action to recover the value and agreed price of quantities of coal alleged to have been sold and delivered to defendants.
    The answer admitted the complaint, and set up as a defence and counter claim, certain contracts between the parties, for the sale and delivery of coal by plaintiff to defendants which were unfulfilled, and for the breach of which defendants claimed damage, etc.; but although claimed as a set-off, there was no reply to the answer, and it appears that such a claim was not urged at the trial, or on the argument on this appeal, and the verdict for defendants directed by the court below, rested solely upon the ground of the indivisibility of the several contracts requiring a complete performance of all as a condition precedent to any recovery for a part.

      Held, That these were severable contracts, and capable of part perform- • anee, and that for the part performed a recovery could be had, bringing them within the rule. That although a certain definite number or quantity of things are brought together, the price is fixed by a certain agreed • rate to be paid for each single article or measure (Story on Sales, § 248, 245 ; Seymour e. Davis, 2 Scmdf. 289).
    It is a general principle that if the contract is divisible, and capable of a separate physical performance, then a delivery and acceptance of a part is sufficient; but if it is indivisible, etc., then the whole contract must be performed at one time (Flanagan v. Demurest, 3 Bobt. 173).
    Where no time of payment is mentioned, it would be due on the delivery of the property sold under it. The delivery of the whole not being a condition precedent to payment, it would become due as fast as delivered (Sickles v. Pattison, 14 Wend. 257).
    Before Monell, Sedgwick, and Van Vorst, JJ.

      Decided February 1, 1873.
    Appeal from a judgment.
    The complaint alleged that the plaintiff had sold and delivered to the defendants, and that the defendants had bought and received of the plaintiff, certain quantities of coal at an agreed-upon price, which they promised to pay, but have failed to pay, except in part, leaving a balance of $4,450 due and unpaid, in which sum the defendants were still indebted for the goods so sold.
    The answer admitted “the allegations of the complaint.”
    For a further defence by way of set-off, the defendants alleged the making of several contracts between the plaintiff and defendants, whereby the plaintiff sold and agreed to deliver certain quantities of coal at prices agreed upon. That the defendants have been at all times ready and willing to receive and accept said coal, and pay for the same according to the contract, but that the plaintiff delivered a part thereof only, and failed and refused to deliver the balance, although requested to do so, to the damage of the defendants.
    There was no reply to the answer.
    The action was tried by the court and a jury.
    The plaintiff moved for judgment on the pleadings, on the ground that the matter set forth in the answer, was neither a counter-claim, set-off, or other defence..
    The motion was denied, and the plaintiff excepted.

      The defendants gave in evidence several contracts which were all like the following, except some were deliverable “on board,” “on dock.” “at Elizabeth-port,” “alongside H. Y. ” etc.
    “Ho. 1050. Hew York, 186
    “ WHITE, FOWLER & SHOW,
    “Coal Merchants,
    “Ho. Ill Broadway, “ All shipments at consignee’s risk, unless 1 H. Y. we have special instructions to insure.
    “All sales subject to our printed regulations.
    “ Sold to
    “WHITE, FOWLER & SHOW,
    “ 500 tons Scranton Hut Coal, at E. Port, subject to breaks of Del. L. and W. R. R. Co., at 4.55 p. t.
    “WM. H. TALMAGE & CO.
    “pp. Fox.”
    The several contracts were made in August and September, 1868.
    One of the defendants testified to the amount of coal delivered under the several contracts, and the market price of coal in Hovember, 1868, and gave the highest price at any time, between the date of the contracts and the commencement of the suit, and that a considerable portion of the coal under each of the contracts had not been delivered. There was evidence of a demand for its delivery, and a neglect to deliver. There was also some evidence of a tender to the defendants of all the coal covered by the several contracts.
    The court held that the proof of tender was insufficient, and directed a verdict for the defendants.
    The plaintiff appealed from the judgment.

      Mr. W. S. Poor, for appellant.

      Mr. W. W. Goodrich, for respondents.
   By the Court.—Monell, J.

The ground upon which the learned justice directed the verdict in this case, was, that the several contracts were entire and inseverable, and required a delivery, or offer to deliver, all the coal before an action for any part delivered could be maintained.

Although the matter set up in the answer was therein claimed to be a set-off, that claim was not urged at the trial, and was abandoned upon the argument of the appeal, as was also any pretence that it could be used as a counter-claim.

The judgment rests, therefore, solely on the ground of the indivisibility of the contract, requiring a complete performance, as a condition precedent to any recovery for a part.

The complaint alleges a sale and delivery of a part of the coal, and the admission in the answer is of such sale and delivery, which is sufficient to establish its acceptance by the defendants. Besides, the evidence abundantly establishes that the part delivered was accepted.

It is very clear, I think, that these were severable .contracts, and capable of part performance, and that for the part performed a recovery may be had. They were for the sale and delivery of a specified number of tons of coal at a fixed price. Part of the coal under each purchase was delivered to, and accepted, and in part paid for, by the defendants, bringing the contracts • within the rule that although a certain definite number or quantity of things are brought together, the price is fixed by a certain agreed rate to be paid for each single .article or measure (Story on Sales, § 243.)

In Seymour v. Davis, 2 Sandf. S. C. 239, the purchase was of five hundred barrels of cider deliverable .in parcels, each to be paid for on delivery. Several parcels were delivered from time to time, and all paid for except the last. The action was to recover the price of the last parcel, and it was claimed, that inasmuch as the whole had not been delivered, there could not be a recovery for any part. The court held otherwise, and that the plaintiff could recover for each delivery and acceptance.

Thus (Mr. Story says, Story on Sales, § 245), if a person order three parcels of goods at a certain price, he may refuse to accept one without the others ; but if one only of them be sent and he accept it, he cannot refuse the second, since by his acceptance of one he has consented to treat the contract as several for each of the parcels. So also if he order twenty barrels of flour, and only ten are sent, and he accept them, he cannot refuse to pay therefor.

The case is different from those contracts where payment is to be made only upon delivery of the whole. Then there is no contemplation of a part performance, and the entire delivery is a condition precedent to any payment. Such were the cases of Paige v. Ott, 5 Denio, 408; Champlin v. Rowley, 13 Wend. 258, and Mead v. Degolyer, 16 Id. 632.

This distinction is clearly taken in Sickles v. Pattison, 14 Wend. 257, where the court say: “lo time of payment was mentioned. In contemplation of law, it would probably be due on the delivery of the lumber. The delivery of the whole was not a condition precedent to' payment. It would become due and demandable as fast as delivered.”

In Flanagan v. Bemorest, 3 Robt. 173, the question arose as to the validity of the contract under the statute of frauds, and the general principle is there stated to be, that if the contract is divisible and capable of a separate physical performance, then a delivery and acceptance of part is sufficient; but where the Contract is indivisible, and cannot by its terms, or otherwise, be performed in separate parts, then the whole contract must be performed at one time.

For these reasons I am of opinion that the direction of the learned justice was erroneous, and that the judgment should be set aside and a new trial ordered, with costs to the-appellant to abide the event.


text:
    JOHN WHITE et al., Plaintiffs, v. WILLIAM H. TALMAGE et al., Defendants.
    It is a general rule that when goods are to be delivered under a contract, and no time is specified in the contract, the law will presume that the parties intended and agreed that they should be delivered within a reasonable time (Jones r. Fowler, 1 Sweeney, 5). What is a reasonable time must be determined upon the facts and circumstances of each case. Under this rule, the law supplies the omission of tire parties, and renders parol evidence, that they intended or agreed upon a different time, incompetent.
    The pendency of another action, or its result, as affecting the result in the action in course of, on trial, must be pleaded, or it cannot be proved as a defence on the trial. If the facts existed before answer, it should have been set up as an affirmative defence ; or, if the facts arose afterward, in the way of a supplemental answer. But unless placed upon the record by being specially pleaded in bar, no proof whatever of the same will be admitted (Brazil v. Isham, 12 W. Y. It. 17).
    Although there was conflicting testimony on the trial in respect to the demand made by the plaintiffs, and the tender made by the defendants, the defendants’ counsel omitted to call the attention of the judge, or to make any request that these questions arising upon conflicting evidence should be submitted to the jury. It is too late to make the objection on the appeal (Seymour «. Cowing, 1 Keyes, 532 ; Barnes ». Ferine, 12 N. Y. S. 18; Winchell ®. Hicks, 18 K. Y. It. 558; Mallory «. Tioga R. R. Co., 5 Abb. K. S. 420). By this omission of defendants’ counsel, it must be assumed that the defendants acquiesced in the view entertained by the judge, that there was not only no conflict in the evidence, but that it established the demand, and did not establish the tender or offer to deliver.
    Before Monell, Sedgwick, and Van Vorst, JJ.

      Decided February 1, 1873.

      Exceptions sent to the General Term.
    The action was to recover damages for the nondelivery of coal under several contracts between the parties.
    The defendants alleged in their answer, that the sales mentioned in the complaint, were, as is the custom of the coal trade, made by the interchange of tickets containing the place and date ,of the transactions, and title and address of the persons selling and buying coal, with a memoranda of the amount sold or bought, and price and place of delivery, like the following :
    “New York, August 21st, 1869. '

    “White, Fowler & Show, Coal Merchants.
    “ Bought from
    “WM. H. TALMAGE & CO.,
    “1000 tons Scranton, Broken at E. Port, at 5.00 per ton.
    “WHITE, FOWLER & SNOW,”
    which is one of the memoranda of a transaction set forth in the fifth cause of action in the plaintiffs’ complaint.
    That these tickets or memoranda do not express the full agreement of the parties, but are made in view of an universal existing custom of the coal trade in the city of New York, which was well known to the trade and to both the parties to this action at the time of the transactions mentioned in the complaint, by which the coal sold is within thirty, days from the date of the sale deliverable to the buyer upon his demanding of the seller an order for the coal thus sold, and after the expiration of the thirty days it is deliverable or not at the option of the seller.
    That a large portion of the sales of coal made between dealers in the city of New York, are made in this way by such tickets or memoranda which are universally treated, acted upon, and considered as subject to the conditions, limitations and interpretations of the said custom.
    That all of the agreements alleged and set forth in the complaint were such memoranda, and were made with reference to, and full knowledge of, and in subordination to, the said custom. And for none of the coal thus sold, save that delivered, did these plaintiffs call for the necessary order therefor within thirty days from the date of sale, nor until, by said custom, these defendants had a right to refuse the delivery thereof. That the full terms of the various sales thus made were not expressed in the tickets because of said custom, and of the understanding and agreement of the parties, that it should intervene and control them and their interpretation, and the agreement of the parties was as herein-above set forth.
    The answer also alleged a tender of orders for the delivery of the coal, which tender was refused. Also an agreement that orders for the delivery of the coal should be demanded within thirty days of the dates of the respective contracts.
    The action was tried by the court and a jury.
    On the trial the plaintiffkproved the several contracts, which were like the following except as to the place of - delivery:
    ; No. 1050.
    New York,
    186
    “WHITE, FOWLER & SNOW,
    “Coal Merchants,
    “No. Ill Broadway,
    “ All shipments at consignee’s risk, unless 1 N. Y. we have special instructions to insure.
    “ All sales subject to our printed regulations.

      “ Sold to
    “WHITE, FOWLER & SNOW,
    “ 500 tons Scranton Nnt Coal, at E. Port, subject to breaks of Del. L. and W. R. R. Co., at 4.55 p. t.
    “WM. H. TALMAGE & CO.
    “pp. Fox.”
    On that contract, 323^ tons were undelivered.
    On the next, 94^- tons undelivered. Next, 240¿-f tons undelivered. Next, 570-g-V tons undelivered. Next, 494tons undelivered. Next 246¿-¡¡ tons undelivered.
    The contracts were for different kinds of coal, and at different prices. The plaintiffs proved, without objection, the highest market price of the same kinds of coal between the dates of the contracts and the commencement of the action.
    White, one of the plaintiffs, testified, “I demanded the coal named in the several contracts of the defendants, before the commencement of this action. I demanded all the coal, and it was' not delivered.”
    Upon his cross-examination, the defendants offered to show that the memorandum of contract did not contain the whole of the contract, because no time is specified for delivering the coal; that the plaintiffs bought it under these contracts, with the understanding that it was to be delivered by a certain time; that on demanding an order, the coal was deliverable or not, at the option of the seller; which offer was objected to by the plaintiffs, and excluded by the court, to which ruling the defendants excepted.
    There was some evidence on the part of the defendants tending to show an offer to deliver the coal, and there was a denial of any demand for the delivery of the coal within thirty days of the dates of the contracts.
    A motion to amend the answer was refused.
    The testimony taken in an action by these defendants against the plaintiffs, in which the damages on these contracts were set off, was given in evidence without object.
    The defendants asked leave to put in evidence the pleadings and proceedings in that action, which would show that the claim for damages in this action 'was allowed to the defendants in that action. Leave was denied, and the plaintiffs excepted.
    The defendants’ counsel moved to dismiss the complaint, on the ground that the plaintiffs having recovered in the suit, Talmage v. White and others, where the same subject-matter was involved, that recovery is a bar to this action.
    Also on the ground, that, not having made a demand for the delivery of the coal within thirty days after each sale, the plaintiffs are not entitled to recover. The motion was denied, and defendants excepted.
    The defendants’ counsel then requested the judge to charge as follows:

      First. That having recovered in the suit of Talmage v. White and others, the same is a bar to any recovery in this action.

      Second. Plaintiffs not having shown any demand for the coal within thirty days from the respective sales, the plaintiffs are not entitled to recover.

      Third. That the plaintiffs, not having suffered any damage by failure to deliver the coal within thirty days from each separate sale, are not entitled to recover.

      Fourth. The plaintiffs, having refused to accept the coal when tendered by defendants, have themselves thereby anulled the contracts, and cannot recover.

      Fifth. That as to the sale under the alleged sale of the 200 tons of coal on the Exhibit No. 3, the sale having been disavowed by the defendants immediately after the same came to their knowledge, the plaintiffs cannot recover.

      Sixth. That by reason of the breach of contract for 200 tons having taken place before any rise in price of coal, the plaintiffs have suffered no damage, and cannot recover therefor.

      Seventh. That no sufficient demand or tender has "been made "by plaintiffs,—which the court refused to do, to which refusal the defendants excepted.
    The court directed the jury to render a verdict in favor of the plaintiff for $4,523.06, which verdict was' accordingly rendered, to which the defendants excepted.
    . The court then ordered the exceptions to "be heard in the first instance at General Term.

      Mr. W. W. Goodrich, for plaintiffs.

      Mr. W. S. Poor, for defendants.
   By the Court.—Monell, J.

The offer to show that the contract did not contain the whole of the agreement, because no time was specified for delivery, was properly overruled. The written memorandums, or bought and sold notes, were the best, and, therefore, the only proper evidence of the contract. They could not be varied, enlarged, or contracted by any parol evidence. There was no ambiguity or concealed meaning, that required explanation or development. And their silence in respect to the time of delivery, did not allow of its being shown that it was to be different from that which the law regulates in regard to such contracts.

It is a general rule that where goods are to be delivered, and no time is specified in the contract, the law will presume that the parties intended and agreed that they should be delivered within a reasonable time (Jones v. Fowler, 1 Sweeny, 5). What is a reasonable time, is to be determined upon the facts and circumstances of each case.

Under this rule, the law supplies the omission of the parties, and renders parol evidence, that they intended or agreed upon a different time, incompetent.

The decision of the motion to amend the answer, is not reviewable. It rested wholly in the discretion of the court, and was not the subject of an exception to the ruling.

It is understood that the denial of leave to prove the pleadings and proceedings in the other action, was upon the ground that neither the pendency of that action, nor its result, had been set up by the defendants in their answer, as a bar to a recovery in this action.

On that ground, I think the evidence was properly excluded. It was new matter, and required to be specially pleaded in bar. If the facts existed when the answer was put in, it should have been set up as a defence at that time; or if they arose afterwards, then by way of supplemental answer. But it is very clear that unless put upon the record by being specially pleaded in bar, no proof whatever was admissible (Brazil v. Isham, 12 N. Y. R. 17).

The ground of the motion for a dismissal of the complaint, and the request to charge that it had not been shown that there was a demand for the delivery of the coal within thirty days after each sale, does not seem to have had any evidence to support it. All evidence tending to vary the written contracts had been excluded ; and they were left to be interpreted, under the rules of law, applicable to such cases. There was not, therefore, any evidence upon which the motion or request could be predicated, and they were properly refused.

Under the contract in question, either party could limit the time of delivery. The vendors, in the absence of any stipulated time, could, at any reasonable time after the sale, have tendered a delivery, and a refusal by the vendee to receive would have rendered them liable for the purchase price, or for damages. Such a tender would, in law, under such a contract, have been a performance of it by the vendee.

The right of the vendees was similar. At any reasonable time after the sale, they might have demanded a delivery, and a refusal to deliver would have put the vendors in default.

But if neither party hastened the delivery, by a tender on the one part or a demand on the other, the time for the delivery would continue indefinitely, or at least until such time as by its. remoteness would raise the presumption of abandonment by the parties.

Under these principles of law, the demand established by the evidence was made in time to put the defendants in default, and was sufficient to lay the foundation for the recovery.

There was doubtless some controversy in the evidence both in respect to the demand made by the plaintiffs, and the tender made by the defendants; but the defendants’ counsel omitted to call it to the attention of the presiding justice, or to make any request that the questions arising upon such conflicting evidence should be submitted to the jury.

It is too late to take the objection now (Seymour v. Cowing, 1 Keyes, 532; Barnes v. Perine, 12 N. Y. R. 18 ; Winchel v. Hicks, 18 N. Y. R. 558; Mallory v. Tioga R. R. Co., 5 Abb. N. S. 420).

By omitting to make such request, it must be assumed that the defendants acquiesced in the view entertained by the judge, that there was not only no conflict in the evidence, but that it established the demand, and did not establish the tender, or offer to deliver.

But if it were otherwise, and the question could be presented now, I do not think we would reverse the judgment on that ground.

It was substantially admitted that a demand was made, but that it was not made within thirty days of the dates of the respective contracts. That, as we have seen, was not necessary. There was no proof that the time to deliver was limited to thirty days; and under the contracts, the plaintiffs could make the demand at any time.

The evidence, which, it might have been claimed, tended to prove some sort of a tender, was wholly insufficient, and was properly disregarded by the j udge.

No objection was made to the rule of damages, and we need not, therefore, look at that question.

It was claimed by the defendants’ counsel, that in addition to proof of a demand, and of its sufficiency in point of time, it was also incumbent on the plaintiffs to prove that they were ready and willing to receive, and able to pay for, the goods.

It does not appear that this objection was urged at the trial; and being an objection which might have been obviated by proof, it should have been taken there, and cannot be insisted on now.

But I do not understand that such additional proof is required.

Performance, or tender of performance, is necessary as a foundation to an action by either of the parties to a contract; but such performance or tender of performance, may expressly or impliedly be waived.

The cases cited, especially Cook v. Ferrals, 13 Wend. 285, do not undertake to say that performance, or tender of performance, may not be excused or waived. Ordinarily, the readiness, willingness, and ability of the , vendee to perform, must be averred and proved. And such proof is required in contracts where the time and place of delivery is fixed. There the vendee must be ready at the time and place, unless the vendor has done something to excuse it, in which case performance, or readiness to perform, is not necessary.

Judge Stoby says (Story on Sales, § 412): If the vendor refuse to deliver the subject-matter of sale, the vendee may reclaim the whole price, if he has paid it, or the damages he may have suffered from the breach of the contract; and in Crist v. Armour, 34 Barb. 378, it was held, that when either party to á contract which provides for performance hy "both parties at the same time and place, before the time for performance arises, notifies the other that he will not perform, the other party is relieved from averring or proving performance, or offer to perform ; and numerous cases are cited in support of the proposition.

This precise question arose in Anderson •».' Sherwood, 56 Barb. 66. It was an action for not delivering a quantity of wheat pursuant to contract, which, upon demand, the seller had refused to deliver, and the court, after stating the general rule, say, “ Butin this case the defendant refused to deliver when it was demanded of him, and I think in such case, the plaintiff was not bound to tender or offer the money to him.”

I think the exceptions should be overruled, and judgment ordered for the plaintiffs on the verdict, with costs.