text:
    MARY E. BRADLEY, Respondent v. ISAAC WALKER, Appellant.

      Injunction—Judginent enjoining defendant from erecting and maintaining structures in front of his premises in violation of a covenant agreement reserving a space of eight feet from the street line.

      Held, that the questions of law in this case were all substantially decided by the decision of a former general term sustaining the injunction granted at the inception of this action, except the questions of the defendant’s . notice of the agreement in question which were not fully discussed. This question, and that of an alleged error in granting to plaintiff an extra allowance of costs, are the only questions for consideration on appeal.

      Held, that a purchaser of real estate, with notice of an equity attaching to it, buys subject to that equity, and must conform to the mode of occupation and use of the estate, however restricted, that was enjoined upon or attached to his grantor, and this notice may be implied from circumstances.
    The house in question, and the adjoining houses in the same block, are actually set back eight feet from the street line, and have remained so for many years. The large open space thus allowed in front of these houses is not usual in the city of New York, and is, of itself, a circumstance that might well put the purchaser on inquiry.
    The covenant agreement under consideration was regularly recorded, and this, of itself, was notice. Purchasers must be presumed to have examined every recorded deed or instrument, and must be deemed to know every fact disclosed by the instruments of record affecting the property purchased, and the fact that such purchasers had not received actual notice otherwise, will not relieve them from the notice and obligations imposed by said recorded instruments. Even if it should be held that the agreement was not properly recorded as to defendant’s grantor, Mrs. Alvord, because of her defective acknowledgment, it having been properly recorded as to the other parties to the agreement, the defendant would thereby have actual notice of the same.
    In regard to the granting of an extra allowance of $250, the court below fell into error. There was no evidence of the value of the subject matter involved and no sum was recovered beyond the costs and extra allowance. Where the subject matter involved is not capable of a money value or the value is not shown, an allowance is not authorized.
    Before Freedman, P. J., and Gildersleeve, J.

      Decided January 29, 1892.
    Appeal from a judgment rendered at an equity term of the court.

      Henry Hoyt, for appellant, argued:—
    I. There was no proof of the execution of the covenant or agreement by Susan Alvord. A certified copy of the record of the covenant or agreement was offered in evidence and admitted under the objections and exceptions of defendant. Section 935, Code of Civil Preeedure, which was also a provision of the statute, is as follows : " A conveyance acknowledged or proved and certified in the manner prescribed by law, to entitle it to be recorded in the county where it is offered, is evidence, without further proof thereof. Except as otherwise specially prescribed by law, the record of a conveyance, duly recorded within the state, or a transcript thereof duly certified is evidence with like effect as the original conveyance.” The motive and intention of the plaintiff in offering the transcript of the record of the covenant or agreement from the register’s office was manifestly for the purpose of proving it as a conveyance. The revised statute in force at the time of the alleged execution of the covenant or agreement is as follows : Section 13 (§ 10), chap. 3,3rd edition, p. 42: “ The acknowledgment of a married woman residing within this state to a conveyance purporting to be executed by her, shall not be taken, unless in addition to the requisites contained in the preceding section she acknowledged, on a private examination apart from her husband, that she executed such conveyance freely, and without any fear or compulsion of her husband; nor shall any estate of such married woman pass by any conveyance not so acknowledged.” There is no claim that the covenant or agreement was so acknowledged on the' part. of Mrs. Susan Alvord. The place of residence of Mrs. Alvord is fixed by the alleged agreement, by the recitals, viz.: “ This indenture between Alonzo A. Alvord of the city of New York, and Susan his wife.” It is contended by appellant that the alleged covenant or agreement is a conveyance within the meaning of the statute. Section 44 (§ 38), p. 47, chap. 3, third edition, is as follows : " The term ‘ conveyance,’ as used in this chapter, shall be construed to embrace every instrument in writing by which any estate, or interest in real estate, is created, alienated, mortgaged or assigned ; or by which the title to any real estate may be affected in law or equity; except last wills and testaments, leases for a term not exceeding three years, and executory contracts for the sale or purchase of lands.” By this statutory definition of conveyance it is manifest that the alleged covenant or agreement is a conveyance within the intent and meaning of the statute. Plaintiff and respondents have always contended that the title of the defendant and appellant to so much of the premises as lies between the northerly line of 30th steeet and a line parallel therewith and distant eight feet therefrom was affected by and subjected to the provision of the alleged covenant or agreement. The agreement provides “ have laid out and appropriated ” * * * “ and do appropriate all such parts of each of the above lots ” * * * “ for open spaces or courts, to remain unobstructed forever ” that the said open space or courts so to be taken from them and each of them shall forever thereafter be and remain an open space or court ” * * * “ Covenants herein contained shall be and they are hereby declared to be covenants running with the above mentioned lots of land respectively, and with the title thereto.” This certainly establishes a giving up, yielding and surrendering’ of an interest in lands and imposing a servitude thereon, as well as encumbering the title. A servitude is defined : “ Where the freedom of ownership in land is fettered or restricted, by reason of some person, other than the owner thereof having some right therein, the land is said to serve such person ; the restricted condition of the ownership, or the right which forms the subject-matter of the restriction, is termed a servitude ; and the land so burdened with another’s right is termed a servient tenement, while the land belonging to the person enjoying the right is called the dominant tenement. Brown Law Die., 320. Therefore the premises in question fettered, restricted and burdened with the conditions of the covenant or agreement is thé servient tenement and thereby an interest in the real estate was created in behalf of the persons in possession of the dominant tenement. Unless it was intended that the title to the lands in question be affected, why does the agreement specifically provide : “ Covenants herein contained shall be and they are hereby declared covenants, running with the above mentioned lots of land respectively, and with the title thereto ? ” It is respectfully submitted that the covenant or agreement, Ex. I, is a conveyance within the meaning of the statute, and the transcript of the record thereof, having no acknowledgment in the form prescribed by statute, it was error to receive the same in evidence against the objections and exceptions of defendant. The form of the alleged acknowledgment of the execution of the agreement by Susan Alvord is not in the form prescribed by statute; consequently there was no acknowledgment by her, and no estate of Susan Alford passed. There can be no presumption in favor of the validity of an acknowledgment, the form is statutory and must be strictly observed, and if not, the general presumption of law is that the wife was acting under the compulsion of husband. A deed of contract conveying or agreeing to convey an estate, where the legal estate is in a feme covert, if not acknowledged by her according to the statute, is void in equity as well as law. Knowles & Hume v. McCainley, et al., 10 Paige, Ch. 342. No estate passes except the conveyance is acknowledged as required by law. The disabilities of the wife are only removed by a strict compliance with the statute. Elwood v. Klock, 13 Barb., 54. The deed of a feme covert not acknowledged according to the statute forms no consideration for a promise to pay the purchase money. Martin v. Dwelly, 6 Wend., 14. A deed executed by a feme covert is not binding on her until acknowledged, and her subsequent acknowledgment does not relate back to the time of the acknowledgment of the deed. Jackson v. Stevens, 16 Johns., 109. Where a wife does not acknowledge according to the statute her right is not divested. Jackson v. Cairns, 20 Johns., 303; People v. Galloway, 17 Wend., 538. The deed of a feme covert is void at common law, not merely voidable; and though she acknowledged the execution after her husband’s death, this shall not relate to the time of the original execution. It can be made operative only in virtue of an acknowledgment under the statute. Doe ex dem. De Peyster v. Howland, 8 Cow., 277.
    II. Susan Alvord, at the time of the making the alleged agreement, could not make an agreement, conveyance or contract with reference to the premises in question. Lot 47, a part of the premises in question and referred to in the agreement, was devised, with other lands, to Susan Alvord under the will of Caspar Samler; subsequently in partition proceedings lot 47 was set apart by Commissions : “ To Alonzo A. Alvord and Susannah his wife, in the right of Susannah, in fee simple, 45, 47.” By the principles of the common law, if the wife, at time of or during marriage, were seized of an estate of inheritance in land, the husband, upon the marriage, became seized of the freehold jure uxoris, and he took the rents and profits during their joint lives. After her decease, if entitled to it, he had his estate of courtesy therein. If she survived him she took the estate in her own right. If the wife dies before the husband, without having had issue, her heirs immediately succeeded to estate. 2 Kent, 130, 133; 2 Blackstone, 126; Vartie v. Underwood, 18 Barb., 561. In 1846 Alonzo Alvord had a freehold estate in his wife’s, Susan Alvord’s, real property, by which he became entitled to the rents and profits during their joint lives. This estate he took jure uxoris. It is conceded that Alonzo A. Alvord could sell, convey, incumber such interest, that it could be taken under execution and that such disposition would be effectual during their joint lives; but upon the death of either such disposition ended. Alonzo A. Alvord died March 7, 1862, leaving his wife Susan him surviving. Consequently she took the estate in her own right freed from covenants, conditions and burdens imposed upon it by her husband in his life-time. This principle is demonstrated in Yartie v. Underwood, 18 Barb., 576.
    III. A married woman can charge her separate estate, but it must be considered in this connection what is meant by the separate estate. The definition, as sanctioned by the Court of Appeals, was thus expressed: “ A separate estate in the feme covert only exists in such property, whether real or personal, as is settled upon for her separate use without any control over it on the part of her husband. It is not all the estate either in lands or chattels, belonging to a feme covert, nor is it her right of dower in the real estate of her husband. As to that kind of estate, the Court of Chancery, for certain purposes, considers her a feme sole, and her contracts relative to it, if made in a peculiar manner, as binding.” Willard Eq., 652. Until the change in the revised statutes in relation to uses and trust, there was a well settled doctrine in equity that a married woman could deal with her separate estate as though she were a feme sole. But this was a pure creation of the courts of equity. The right of disposition was confined to property enjoyed independently of the husband. But her own reversions in lands, when she owned them at the time of marriage, was a legal estate, descendable to her heirs, to which courts of equity did not and could not well apply the doctrines above stated. In reference to such an estate, she hah only a disposing capacity, which the common law or some enabling statute allowed to her. She could divest her title only by a conveyance, with certain solemnities of examination and acknowledgment. Willard Eq., 653; Yale v. Dederer, 18 N. Y., 270, and authorities there cited. Consequently, the agreement was null and void, and defendant’s 10 th objection should have been sustained and the alleged agreement excluded.
    IV. Susan Alvord and husband by warranty deed conveyed the premises in question to Fielder and Ryer without any reference or abusión to the agreement, nor was such conveyance made subject to it. This was a direct and positive repudiation of the agreement, and is evidenced by the deed which contains the following clause with respect to the premises : And that the same are now free, clear, discharged and unencumbered of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments and encumbrances of what nature and kind soever.” No rights and privileges under the agreement were conferred upon the grantees of Alvords, and none have been asserted by such grantees.
    V. The defendant Walker had no notice of the agreement, and no reference or abusión is made to it in any of the conveyances of the premises in question.
    VI. Defendant claims that 17 feet and 10 inches of the front of the premises in question can in no wise be affected, by the covenants and conditions of the agreement made in 1846. A triangular strip of land lying between Lot 47 and the northerly side of 30 th street, for the sum of $2,000, was acquired six years thereafter by Susan Alvord, in 1853. The principles of law adopted in cases where one having no title to lands executes a deed thereof or mortgage, thereon, with covenants of seizing and of title, and afterward acquires title, it inures to the benefit of the grantee or mortgagee, and the grantor or mortgagor and his privies in estate, in blood and law, are estopped from questioning that, at the date of the deed or mortgage the grantor or mortgagor had title, is not applicable to this case. Teft v. Munson, 57 N. Y., 97. There is nothing in the agreement or the evidence which indicates or contemplates that any subsequently acquired property shall be subject to its terms, nor is there anything in said agreement whereby Susan Alvord claimed or pretended that she was the then owner of the triangular strip, and that she contracted with reference to it. There is no evidence on which to base the finding on the part of the trial judge at the end of II. finding, viz.: “ And I further find that the gore was purchased to straighten the lot.” To this finding an exception was duly taken. The following cases demonstrate a subsequently acquired interest of a feme covert will not be held, even where she has previously contracted with reference to the same lands. A feme covert not being bound by a covenant or warranty contained in a deed executed by her and her husband jointly, for the purpose of conveying land which the husband holds in the right of his wife, such covenant will not operate by way of estoppel so as to vest an interest subsequently acquired by her in the grantee of the deed. Carpenter v. Schermerhorn, 2 Barb. Ch, 314; Martin v. Dewelly, 6 Wend., 9; Clowes v. Vanderhyden, 17 Johns., 167. A feme covert cannot bind herself personally by a covenant or contract during her coverture. Therefore, a deed executed by husband and wife, with covenant of warranty, does not estop the wife, in an action of execution against her, after the death of her husband, from setting up a subsequently acquired interest in the same lands. Jackson ex dem. Clowes v. Vanderhyden, 17 Johns., 167. The doctrine that a wife is bound by her covenant of warranty, entered into during coverture, is considered by Chancellor Kent, 2 Kent’s Com., 140, as at war with the established principle of common law. Martin v. Dewelly, 6 Wend., 14.
    VII. It was error on the part of the court to grant the plaintiff an allowance of $250. The right to grant additional allowances in specified cases, and the amount thereof, is fixed by section 3253 of the Code of Civil Procedure. Subdivision 2 of the above section is as follows: “ 2 in any other case, specified in this section, sum not exceeding five percentum upon the sum recovered, or claimed, or the value of the subject matter involved.” It is necessary, therefore, that there should be some evidence of value. Monroe v. Smith, 23 Abb. N. C., 275; Coates v. Goddard, 34 Super. Ct., 118. There is no evidence in this case of the value of the subject, matter involved, nor is there any evidence as to the amount of damages sustained by plaintiff; no judgment for damages has been awarded the plaintiff, and the money judgment herein represents only the costs of the action and the above allowance of

      George. W. Cotterill, for respondent, argued :—
    I. The underlying and most meritorious principle in this case, and which in and by itself alone disposes of all the contentions made by the defendant, is that of dedication. A dedication may be made without writing; by act in pais, as well as by deed. The owner does not part with the title, for dedication has respect to the possession and rests upon the principle of estoppel; for “it would be dishonest, immoral or indecent, and in some instances even sacriligeous, to reclaim at pleasure property which has been solemnly devoted to the use of the public, or in furtherance of some charitable or pious object. The law therefore will not permit any one thus to break his own plighted faith; to disappoint honest expectations thus excited, and upon which reliance has been placed. The principle is one of sound morals and of most obvious equity, and is in the strictest sense a part of the law of the land. It is known in all courts, and may as well be enforced at law as in equity.” Hunter v. Trustees of Sandy Hill, 6 Hill, 411, 412. This doctrine is also laid down in Washburn on Easements, page 240, and in all the elementary works, and it was held in the case cited below as follows: “ A parol dedication is good, and is generally the only one made; and although there is no grantee to take, it vests in the public, and is different from ordinary grants, and is to be construed upon principles to meet the nature of the case (22 Wend., 444; 6 Ib., 256; 6 Hill, 411; 3 Verm. Rep., 526; 6 Peters, 435). Its effect is not to deprive a party of title to his land, but to estop him while the dedication continues in force from asserting that right of exclusive possession and enjoyment which the owner of property ordinarily has ” (6 Hill, 412; 6 Peters, 431, 438). Curtis v. Keesler, 14 Barb., 521.
    II. The second most meritorious and best settled principle of law is this, where anyone buys real estate, with notice of an equity attached to it, he buys at bis peril. The underlyyig principle is that “whenever a person who acquires a legal title, or an equitable title or interest in a given subject-matter—even for a valuable consideration, but with notice that the subject-matter is already affected by an equity or equitable claim in favor of another—takes it subject to that equity or equitable claim.” Pomeroy's Eq. Jurisp., vol. 2. p. 14. The doctrine has been clearly stated in Hodge v. Sloan, 107 N. Y., 245, 250. This principle was applied in the case in ibis court of Tallmadge v. East River Bank, supra, where the original owner merely exhibited a plan of St. Mark’s Place in which the houses were set back eight feet. This case reviews many authorities and quotes Chancellor Cottenham as saying that where a covenant of this character has been entered into it would be most “ unjust and unconscientious ” not to enforce it. One of the leading cases on this subject, and cited as such, is Whitney v. Union Railway Company, 11 Gray (Mass.), 363, where the same opinion is held in the following language : “ In like manner, by taking an estate from a grantor with notice of valid agreements made by him with the former owner of the property, concerning the inode of occupation and use of the estate granted, the purchaser is bound in equity to fulfill such agreements, with the original owner, because it would be unconscientious and inequitable for him to set aside and disregard the legal and valid acts and agreements of his vendors in regard to the estate, of which he had notice when he became its purchaser. In this view the precise form or nature of the covenant or agreement is quite immaterial. It is not essential that it should run Avith the land.” The authorities, however, in this state go so far as to hold that these covenants run Avith the land, and without an assignment of the covenants, are enforceable; and any owner as well as occupant can enforce the right. Trustees, etc., v. Cowen, 4 Paige, 511; Brown v. Jones, 23 Barb., 153. On the general doctrine of the above cases, this court ordered a projection of the Burlington flats (in the same street) to be removed. Dubois v. Darling, 44 N. Y. Supr., 436. And the defendant Avas enjoined from maintaining a tenement house. Ammerman v. Dean, 57 N. Y. Supr., 177.
    III. We show conclusively by the authorities cited that the husband, Alonzo A. Alvord, had, by virtue of his marital right, the absolute and unqualified right to dispose of, and to sell all the interest of his wife, until the marriage relation ceased. In other words, she had no right to the property whatever as against him during her coverture. This agreement was entered into July 15, 1846 ; at this time the husband had the absolute disposition of the property by virtue of his marital right, and consequently the right to impose this very servitude. Mrs. Alvord having never disaffirmed it, but having joined in the conveyance made by her husband to Fielder and Ever without repudiation, the equity of the covenant upon which this case stands became conclusive against the defendant. On the first day of April, 1857, Alvord and his wife sold and conveyed these two lots to William Eyer and another. • In the year 1857, the two houses were built on these lots, the Walker lot and the one next east. The houses were therefore erected and the agreement consummated during the life of the husband, whose agreement was therefore perfectly valid and in force by virtue of his exclusive right to sell. “ This right the law had cast upon the husband as an incident to the marital relation. It was his property, and remained subject to all the incidents of property in his hands.” Vartie v. Underwood, 18 Barb., 566.
    IV. It is, however, well settled that even if a woman has not power to bind herself by covenant personally, she has power to bind her assignees, and her husband has the same power. Now, they have expressly contracted as follows : “ And it is hereby mutually covenanted and agreed that the covenants herein contained shall be obligatory and binding upon every person who shall hereafter become the owner or owners of the said lots of land respectively, as upon the parties hereto respectively.”
    V. The statute requiring a separate acknowledg’ment by married women having been subsequently repealed, the disability was thereby removed, and thus the matter was placed in the same situation as though the statute had never existed. It will be observed that the covenant-agreement was executed on the 15th day of July, 1846; that Alonzo A. Alvord and Susan Alvord conveyed to Fielder and Byer on the first day of April, 1857, and that in 1848 the separate acknowledgment statute was done away with, the disability having been removed. Blood v. Humphrey, 17 Barb., 660. The disability was further removed by the statute of 1849; whch gave additional right to married women (Richardson v. Pulver, 63 Barb., 67), and there was an express repealing statute by the laws of 1879 as amended in 1880, as follows : Section 1.—The acknowledgment by married women as the ■proof of the execution by. married women of deeds or other written instruments may be made, taken and certified in the same manner as if they were sole ; and all acts and parts of acts which require from them any other .or different acknowledgment, proofs or certificates thereof are hereby repealed.
   By the Court.—Gildersleeve, J.

By a judgment .of the court below, the defendant was enjoined from erecting and maintaining structures in front of his premises, in violation of a covenant agreement entered into by prior owners of this and adjacent property, reserving a space of eight feet in front of the street line.

The questions of law involved in this case, and requiring consideration for its proper determination, were all substantially decided by a former general term of this court, on an appeal from the order vacating the injunction granted at the inception of the action. See Bradley v. Walker, opinion by McAdam, J., N. Y. Supp., vol. 14, p. 315.

In the above mentioned opinion, the question of the defendant’s notice of the agreement is not fully discussed; and the claim of his learned counsel that, on the former appeal, it was assumed that the defendant purchased the premises with notice, is not without some foundation. We nowproposeto discuss this question, and also give attention to the alleged error in granting plaintiff an allowance of $250. We hold the former general term opinion to be decisive of all other material matters herein.

Whoever purchases real estate with notice of any equity attaching to it, buys subject to that equity. He must conform to the mode of occupation and use of the estate, however restricted, that was enjoined upon or attached to his grantor. Bradley v. Walker, supra, and authorities there cited. The notice may be implied from circumstances. In Tallmage v. East River Bank, 2 Duer, 614, affirmed 26 N. Y., 105, the court held That the uniformity of the position of all the houses on St. Mark’s Place was probably sufficient alone to put the defendant on inquiry.” See also Maxwell v. East River Bank, 3 Bosw., 124; Perkins v. Coddington, 4 Rob., 647; Greene v. Creighton, 7 R. I., 1.

The house in question and the adjoining houses in the same block are actually set back eight feet from the line and have remained so for many years. The large open space thus allowed in front of these houses is not usual in the city of New York, and is of itself a circumstance that might well put the purchaser on inquiry. In Tallmage v. East River Bank, supra, the notice was not wholly by implication. There was testimony in the case that justified a finding of actual notice. Nevertheless, the case is authority in support of the doctrine for which we here contend. But in the case at bar, the fact of the notice does not rest upon an implication from circumstances above set forth.

The covenant agreement under consideration here was regularly recorded, and this in and by itself was notice. This court, in Kendall v. Neebuhr, 45 Super. Ct., 542, Freedman, J., writing the opinion, affirmed at general term, 46 Super. Ct. R., 544, held that a mortgagee employing an attorney to make searches, prepare releases, etc., is chargeable with knowledge of a recorded conveyance, though the fact was not communicated to him by the attorney. The presumption is that the attorney found the record in discharge of his professional duty, and the presumption becomes conclusive by the attorney’s omission to testify to the contrary, when called as a witness.” In the case at bar, the defendant’s attorney was present and conducted the trial, but remained mute on this point. Notice to an attorney in the investigation of a title is notice to his client. See Griffith v. Griffith, 9 Paige, 315; Weeks on Attorneys, p. 407, § 237. Purchasers must be deemed to know every fact disclosed by the instruments of record affecting the property purchased; and the fact of such purchasers not having actual notice will not relieve them from obligations imposed by said instruments. A purchaser must be presumed to examine every recorded deed or instrument forming a part of it. See Acer v. Westcott, 46 N. Y., 384; McPherson v. Rollins, 107 Ib., 322.

If it is held that the agreement was not properly recorded as to defendant’s grantor, Mrs. Alvord, on account of her defective acknowledgment, inasmuch as it was properly recorded as to the other parties to the agreement, the defendant could not in law see a part without the whole, and he would thereby have actual notice through his attorney, who searched the title. See 2 Pomeroy’s Eq. Juris., pp. 16, 17, 92.

With regard to the granting of an extra allowance of 1250, we think the court below fell into error.

Subdivison 2 of section 3253 of the Code provides that an extra allowance may be given in any other case ” (other than an action to foreclose a mortgage) “ specified in this section, a sum not exceeding five percentum upon the sum recovered, or claimed, or the value of the subject matter involved.”

In the case at bar, there is no evidence of the value of the subject-matter involved, and no sum recovered beyond the costs and extra allowance ; while the amount claimed as damages is one thousand dollars, five percentum of which would be less than the $250 granted as extra allowance by the court below. Thus, in any view of the case, the granting of the extra allowance of $250 was improper.

Where the subject matter involved is not capable of a money value, or the value is not shown, an allowance is not authorized. See Conaughty v. Saratoga Co. Bank, 92 N. Y., 401; People v. Alb. & Sus. R. R. Co., 5 Lans., 25; Coates v. Goddard, 34 Super. Ct., 118; Monroe v. Smith, 23 Abb. N. C., 275.

This error, however, is one that can be remedied, without reversing the judgment, which, in all other respects, is fully warranted.

We are of the opinion that the judgment must be modified by deducting therefrom the sum of $250 ; and, as thus modified, the judgment appealed from is affirmed, with costs.

Freedman, P. J., concurred.


source: Caselaw Access Project

author: By the Court.—Gildersleeve, J.

license: Public Domain

text:
    RICHARD DEEVES, Respondent v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellants.

      Contract for building cottage in Mount Morris Park, limited as to time for building from notice to commence, etc.

    In this case, the agreement provided that the plaintiff should commence the work on such day as the park commissioners should designate, and progress therewith so as to complete the same on or before the expiration of three calendar months; and in case he failed to complete the same within the time he should pay §20 for each day of default.

      The defendant set up, as a counter-claim, that plaintiff was in default 103 days, which they sought to offset against the claim of plaintiff for the amount claimed to be due to him on the contract. The evidence on the trial, on the part of defendants, fails to show that the park commissioners ever designated any day upon which plaintiff was to begin the work, or ever gave him notice to commence the work,- while the plaintiff affirmatively testifies that no day was ever designated on which to commence the work.

      Meld, that as there was no day fixed or designated by the defendants for the commencement of the work, the plaintiff’s time to complete the same never began to run, and there was no default on his part in that respect.
    Before Freedman, P. J., and Gildersleeve, J.

      Decided January 29, 1892.
    Appeal from a judgment, entered on the verdict of a jury, in favor of plaintiff, and from an order denying defendants’ motion for a new trial.

      Thornton, Earle & Kiendl, attorneys, and David Thornton of counsel, for appellant.

      William H. Clark, counsel to the corporation, and Edward H. Hawke, Jr., and Charles A. O’Neil of counsel, for respondents.
   By the Court.—Gildersleeve, J.

This action was brought to recover the sum of $2,249.00, with interest, being the balance alleged to be owing to plaintiff by defendants, under a contract that plaintiff made with defendants to erect a cottage in Mount Morris Park, for the sum of $5,650.00. The defence thereto set up by defendants, is that the plaintiff did not perform his work within three calendar months, as required by his contract, and did not complete the work until about May 20,1889; and that therefore the plaintiff was in default 103 days, for which time he was charged by defendants $20.00 per day as damages, making $2,-060.00, which the defendants seek to offset against the claim made by plaintiff, and declare themselves ready and willing to pay the balance of $189.00.

The material parts of the contract, important for consideration here, are as follows :

(D) And the said party of the second part (the plaintiff) hereby further agrees that he will commence the aforesaid work on such day, and at such place or places, as the commissioners of the department of public parks may designate, and progress therewith, so as to complete the same, in accordance with this agreement, on or before the expiration of three calendar months, not including, however, such time as the prosecution of the whole work may be suspended by written order of the said commissioners of the department of public parks.

(E) In case the said party of the second part shall fail to fully and entirely, and in conformity with the provisions of this agreement, perform and complete the said work, and each and every part and appurtenance thereof, within the time hereinbefore limited for such performance and completion, or within such time as the same, in accordance with the provisions of this agreement, shall be increased or diminished, the said party of the second part shall and will pay to the said parties of the first part (defendants) twenty dollars for each and every day that he, the said party of the second part, shall be in default, which said sum of twenty dollars per day is hereby agreed upon, fixed and determined by the parties hereto as the damages which the parties of the first part will suffer by reason of such default, and not by way of penalty. And the said parties of the first part shall and may deduct the said sum of twenty dollars per day out of any moneys that may be due or become due to the said party of the second part under this agreement.”

A careful review of the testimony fails to disclose any evidence that the commissioners of public parks, or any one for them, ever designated the day on which plaintiff was to begin the work, or ever gave him notice to commence the «work; hut, on the contrary, the plaintiff affirmatively testifies that no day was designated on which to commence the work.

Inasmuch as the defendants were in default, in neglecting to fix a day for the commencement of the work, they cannot complain of the default of the plaintiff in failing to complete the job in three calendar months from the beginning of the work. If the defendants seek to hold the plaintiff to the strict letter of the contract, they are debarred from objecting to the plaintiff’s holding them to an equally strict construction of the contract. No day having been fixed, the plaintiff’s time never began to run.

It is conceded that plaintiff fully performed all the work he was to do, and defendants’ only objection is that he did not complete the job within three months from the time of beginning. The plaintiff was delayed for a long period by the neglect of the Board of Health to give a necessary permit, through no fault of the plaintiff, and also by inclement weather, which rendered it almost impossible to continue the work. If we deduct the time lost through these two causes, we find that the plaintiff completed the work within the three months required by the contract.

There are no errors in the admission or exclusion of evidence of sufficient weight to warrant a reversal of the judgment; and the charge of the learned trial judge, taken as a whole, fairly and properly presented the case to the jury, with due regard for the rights of the defendants.

For the reasons above indicated, the judgment and order appealed from are affirmed, with costs.

Freedman, P. J., concurred.


text:
    ELIZABETH A. CULLIFORD, Respondent v. MONTGOMERY GADD, Appellant.

      Action for damages for alleged fraudulent representations made to plaintiff defendant—Certificate in appeal boolc that the case contains all the evidence produced at the trial, results from its absence.

      Held, as no certificate appears in the appeal hook, to the effect that the case as filed contains all the evidence produced at the trial, the court is not at liberty to review any question arising in the case. The only questions for review are those of law.
    The potent representation made by the defendant was his statement “ that he and one Edward L. Tamsen, were the owners of a very valuable secret process.” The evidence as contained in the record ful'ly supports the contentions of the plaintiff and warranted the verdict of the jury. It is not a defence to show that the representations were not made to the plaintiff in person, but were made to her agent, so long as they induced the plaintiff to part with and pay over her money. Fraud committed on the agent is fraud upon his principal; the agent is not bound to disclose his principal, and his failure to do so does not waive any rights of his undisclosed principal against the defendant. The plaintiff was not obliged tq establish all the alleged false representations; the proof of any material false representation that induced the plaintiff’s action in the premises was sufficient. It must have been made as charged. It must have been false, and known by defendant to be false when made; and at the time, it must have been the intention of the defendant to defraud the plaintiff; and the action of defendant, in furtherance of such intention, did work the plaintiff an injury; and it must have been that the representations of defendant were relied upon by plaintiff as true, and they hud a material and substantial influence upon her in inducing her to part with her money; that they were of such a character as would deceive a man of ordinary care, caution and prudence, and such as common prudence and caution could not well guard against. And in regard to all these elements, that were necessary to sustain the plaintiff’s action, the jury were justified in concluding that the testimony was satisfactorily established.
    Before Freedman, P. J., and Gildersleeve, J.

      Decided January 29, 1892.

      Appeal from a judgment, entered on the verdict of a jury, and from an order denying defendant’s motion for a new trial.

      Sidney S. Harris, attorney and of counsel, for appellants.

      F. Spiegelberg, attorney, and Edmond E. Wise of counsel, for respondent.
   By the Court.—Gildersleeve, J.

This action is for damages sustained by the plaintiff through the fraudulent representations of the defendant. In January, 1889, at the request of the defendant, and by reason of representations that the defendant had made, the plaintiff, through her husband, as agent, subscribed and paid $1,000 to a syndicate for the development of an alleged secret process for the filtration of water. The plaintiff alleges in her complaint that at various times prior to her parting with the $1,000, as aforesaid, the defendant, with intent to defraud her, represented to her “ that he and one Edward L. Tamsen were the owners of a very valuable secret process, called the ‘ Tamsen Process,’ which would greatly improve and facilitate the filtration of water; that he and said Tamsen were ready and willing to sell said secret to a syndicate, to be composed of ten persons, each member to pay $1,000, cásh, which syndicate, after the purchase of said alleged secret, was to form a corporation for the purpose of manufacturing and selling filters constructed on said Tamsen process ; that said defendant had all the money necessary at his command to assure the success of said corporation when formed, and that no other patent had been issued in the United States or in any other country, covering said alleged secret or Tamsen process, and that said defendant had secured nine members of said syndicate, above mentioned, and that each of them had paid, or was about to pay, $1,000 for the purpose of becoming a member of said syndicate.” The complaint further alleges that all of these representations were false, known by defendant to be so, and were made with intent to deceive and cheat the plaintiff and to induce her to pay the $1,000 ; that plaintiff believed said representations to be true, and, relying upon them, was induced and did consent to become a member of the alleged syndicate, and pay the $1,000, as aforesaid.

No certificate appears in the appeal-book to the effect that the case as filed and served contains all the evidence produced at the trial. In the absence of such a certificate, we are not at liberty to review any question of fact arising in the case; the only questions we can properly consider are those of law. See Aldridge v. Aldridge, 120 N. Y., 614; Murphy v. Board of Education, 53 Hun, 171; Harkness v. N. Y. El. R. R. Co., 55 N. Y. Super. Ct., 532. Nevertheless, we have carefully examined the evidence in the case, and make the following observations. Harkness v. R. R. Co, supra.

The potent representation made by the defendant, as appears to us, was the statement by defendant, “ that he and one Edward L. Tamsen were the owners of a very valuable secret process.” The evidence warranted the jury in concluding that this representation was made by the defendant. It is not a defence to show that the representations were not made to the plaintiff in person, but were made to her agent, so long as they induced the payment of the money. Fraud committed on the agent is fraud upon his principal. See Raymond v. Howland, 12 Wend., 176; Allen v. Addington, 7 Ib., 9.

There is testimony in the case to satisfactorily support the finding by the jury that the principal was disclosed to the defendant, and that he acted with full knowledge of the capacity in which the plaintiff’s husband was acting. If this were not so, the charge of the learned trial judge that it is immaterial whether or not the defendant knew that Culliford was acting as agent for his wife,” was not error, for the reason that the agent is not bound to disclose his principal, and his failure to do so does not waive any rights of his undisclosed principal as against the defendant. See Ludwig v. Gillespie, 105 N. Y., 653.

The plaintiff was not obliged to establish all the alleged false representations. The proof of any material false representation that induced the plaintiff’s acts was sufficient. It must have been made as charged; it must have been false, and known by defendant to be false when made; and at the time it must have been the intention of the defendant to defraud the plaintiff; and that such acts, in furtherance of such intention, did work her an injury; it must have been that the representations were relied upon by the plaintiff as true, and that they had a material and substantial influence upon her in inducing her to part with her money ; that they were of such a character as would naturally deceive a man of ordinary care, caution and prudence, and such as common prudence and caution could not well guard against. These elements, necessary to sustain the plaintiff’s action, the jury were justified in concluding that the testimony satisfactorily established.

The evidence, as contained in the record before us, fully supports the contentions of the plaintiff. Such portions as were controverted were fairly submitted to the jury, and the verdict of the jury is conclusive. See Schumaker v. Mather, 14 N. Y. Supp., 411; Hart v. Wilder, 13 Ib., 615.

The charge to the jury of the learned trial judge, when taken as a whole, was correct and fully protected the rights of the defendant.

We find no exceptions to the admission or exclusion of evidence of sufficient importance to claim attention here.

For the reasons above indicated, the judgment and order appealed from are affirmed, with costs.

Freedman, P. J., concurred.


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    WILLIAM SPERB, Jr., Respondent v. THE METROPOLITAN ELEVATED RAILWAY COMPANY, et al., Appellants.

      Damages to abutting property by elevated railroad—Evidence of special benetits, when sufficient to offset damages—Judgment of injunction against operation of railroad in front of one parcel to be obviated by payment of damages found to be sustained by such parcel and an additional parcel, when erroneous.

    In this action, brought by an abutting property owner to secure an injunction and incidental damages by reason of the maintenance and operation of defendants’ elevated railroad, it was shown that the plaintiff was the owner of two separate parcels of property known as No. 926 and No. 624 Sixth avenue, located about sixteen blocks apart. The referee before whom the case was tried found that the value of easements taken by the defendants with respect to the premises No. 624 Sixth avenue was the sum of $800, and with respect to the premises No. 926 Sixth avenue the sum of $2,850. The referee also awarded to the plaintiff the sum of $1,451 as rental damages, caused to the premises No. 926 Sixth avenue by the past operation of defendants’ railroad. Held, upon the evidence with respect to the premises No. 624 Sixth avenue, that the special benefits offset the damages caused by defendants’ railroad, and that it was error to refuse defendants’ proposed finding to that effect.
    The judgment entered upon the referee’s report enjoined the further maintenance and operation of defendants’ railroad only with respect to the premises No. 926 Sixth avenue, but provided that the injunction granted should be obviated upon payment by defendants of the sums found by the referee as the value of easements taken with respect to both parcels. Held, error, and judgment modified by making injunction voidable by payment of $2,350, the value of easements taken with respect to premises No. 926 Sixth avenue.
    Before Dugro and Gildersleeve, JJ.

      Decided January 29, 1892.

      Appeal from a judgment entered February 11, 1891, upon a report of a referee, which awards plaintiff $1,457.00 past damages, sustained by him on account of the maintenance and operation of defendants’ elevated railroad in front of his premises, No. 926, Sixth avenue, besides $280.18, costs of the action. The judgment further enjoins the defendants from maintaining or using their elevated railroad structure or operating their railroad thereon, in front of said premises, No. 926, Sixth avenue, except on the payment to plaintiff of $3,150.00, as the price of so much of his property in the street as has been taken by defendants.
    This action covered two separate parcels, viz., Nos. 624 and 926 Sixth avenue. The learned referee apportioned the damages as follow:
    No. 624 Sixth avenue :
    Rental damage none.
    Value easements . | 800.
    No. 926 Sixth avenue :
    Rental damages . 1,457.
    Value easements . 2,350.

      Davies & Rapallo, attorneys, and Julien T. Davies and Byron Traver of counsel, for respondents.

      Edwin M. Felt, attorney for respondent.
   By the Court.—Gildersleeve, J.

We will first consider the judgment herein so far as it relates to the premises No. 624 Sixth avenue. The evidence does not support the finding of a fee damage of $800. This action was commenced May 8, 1889. From the undisputed evidence it appears that the plaintiff bought the property on September 1, 1885, seven years after the railroad was built, for $32,000; that it was occupied by an old building, worth about $6,000, which plaintiff pulled down; that plaintiff erected in place thereof a new building, at a cost of about $15,000; that the fair value of the property when this action was tried was at least the sum of $41,000. The appraiser for the Emigrant Industrial Savings Bank placed the value at from $40,000 to $45,000. Deducting $6,000, the value put upon the old building, from the purchase price, we find that the lot cost the plaintiff $26,000; and when we add to this sum $15,000, the cost of the new building, we find the plaintiff’s outlay for the property to be exactly $41,000. Plaintiff’s expert testified that the value of property on the block where No. 624 is located has increased much more relatively since the building of the road than corresponding property on the same block on Seventh avenue ; that the block is very desirable for business ; that the maintenance and operation of the road had made that portion of Sixth avenue, which includes the property in question, more desirable for business purposes. The only evidence that indicates any disadvantage to the plaintiff by the maintenance and operation of defendants’ structure in front of these premises is his own statement to the effect that the running trains darken the store when they pass, and that he is annoyed by cinders, smoke, and smells. We are of the opinion that a fair conclusion from all the evidence is that the special benefits accruing from the operation of the road offset any disadvantages that may exist, and that the property is worth more with the road there than it would be without it. No proof was offered as to property in localities off the line of the railroad, by way of comparison. We fail to find in the affirmative testimony any evidence that warrants a recovery by the plaintiff.

For the foregoing reasons, we think it was error for the learned referee to refuse to find, as requested, That the special benefit accruing to the premises known as number 624 Sixth avenue, from the maintenance and operation of the said railroad in front thereof, is equal to and offsets the disadvantages, if any, resulting from the maintenance and operation of defendants’ railway.”

The judgment herein further awards to plaintiff the sum of $1,457, and costs, as past damages, for the injuries to No. 926 Sixth avenue, and enjoins the defendants from maintaining or using their elevated railroad structure, or operating their railroad thereon, in front of said No. 926 Sixth avenue, except on the payment to plaintiff of $3,150, as the price of so mucli of the property in the street, as has been taken by defendants. The learned referee fixed the value of the easements taken from No. 926 Sixth avenue at $2,350, and the judgment fixes the amount that the defendants have the option of paying, in avoidance of the injunction, at $3,150. This latter sum is the aggregate value of the easements, as found by the referee, taken from both premises No. 926 and No. 624 Sixth avenue, located about sixteen blocks apart. The defendants are not enjoined from operating their railroad in front of No. 624 Sixth avenue. The judgment, therefore, imposes upon the defendants, in respect to the premises which were the basis for the injunction, a greater burden than the referee imposed. This is unjust and cannot be maintained upon principle or authority. The facts, however, having been fully found, this error may be cured by modifying the judgment to conform to them. Price v. Price, 33 Hun, 432; Hamilton v. Manhattan R. R. Co., 58 N. Y. Super. Ct., 17.

With regard to No. 926 Sixth avenue, we are of opinion that the evidence sustains the findings of the referee. We find no errors in the admission or exclusion of evidence that are of sufficient importance to require consideration.

For the reasons above indicated, the judgment must be modified by deducting the sum of $800, the sum awarded as damages to the easements of No. 624 Sixth avenue, from the sum of $3,150, the sum required to be paid by defendants to the plaintiff, and by directing the defendants to pay to the plaintiff the sum of $2,350, only, in avoidance of the injunction; and, as thus modified, the judgment is affirmed, with costs.

Dugro, J., concurred in result.


author:
Hamilton Odell, Referee.
     Per Curiam.

text:
    ALEXANDER McSORLEY, Respondent v. JOHN G. PRAGUE, Appellant.
    Action to recover on an account, for work, l^bor and services, and for money expended and materials furnished in doing plumbing work by plaintiff under contract with defendant.
    The facts and points of law in the case fully appear in the opinion of the referee, upon which the court decided the appeal.
    Before Freedman, P. J., McAdam and Gildersleeve, JJ.

      Decided January 29, 1892.
    Appeal from a judgment entered upon the report of a referee.
    The opinion of the referee is as follows:—
   Hamilton Odell, Referee.

"In this action the plaintiff seeks to recover the sum of $2,341.81 for a balance due on contracts for plumbing work, and for work done and moneys expended and goods sold and delivered at the defendant’s request between March 1, 1888, and October 1, 1889. The defendant denies the several allegations of the complaint, and then alleges, by way of counter-claim, that between July 1, 1887, and April 1, 1890, the plaintiff performed certain work and furnished certain materials under certain written contracts ; that he also ‘ performed certain other work and furnished certain other materials, which last mentioned work and materials were additional or extra work to that contemplated by the said contracts ; ’ that the said contract and extra work and materials were worth, and the defendant agreed to pay therefor, only the sum of $66,903.38; that defendant has paid to plaintiff, for and on account thereof, the sum of $69,167.81, and that the excess, to wit, the sum of $2,264.43, is ‘ due and owing from plaintiff to defendant.’ At the beginning of the trial the defendant was permitted to amend his answer by alleging that the excess of payments made by him to the plaintiff was the sum of $3,592.43, and also to plead an expenditure of $257.81, made necessary by the defective work of the plaintiff ’ in some of the houses to which this controversy relates.

It is admitted that the contracts above referred to amounted to the sum of $61,200.00, and that the plaintiff has been paid by the defendant the sum of $69,167.-81. The hills—108 in number—rendered by the plaintiff for extra work and materials amounted to $8,741.91. The defendant concedes that they are correct to the extent of $7,606.28. Forty-nine of these 108 bills— amounting to $1,689.87—were produced by the plaintiff upon the trial, and he testified that they were accurate and true hills, and that they had not been paid. Twenty-five of them are not disputed by the defendant; to the remaining twenty-four he urges the following objections:

He objects that they include bills—amounting to $322.51—for services rendered upon houses belonging to D. Willis James. The defendant denies that these services, with the exception of a single item, were rendered at his request or at the request of any person authorized by him. They were charged to James in the plaintiff’s hooks, and the plaintiff téstiñed : ' Originally I made out the bills against D. Willis James, knowing that he owned the houses; but Mr. Prague tokl me to make out the bills against him, that he would have to stand that.’ This Prague denied. The proofs show that Prague was the contractor for building the James houses ; that the work covered by these bills Avas done while the plaintiff’s men were engaged in the performance of the contracts for plumbing other buildings for the defendant in the immediate neighborhood; that the plaintiff was instructed by the defendant to do any work which he might be ordered to do by the defendant’s men in charge; and the plaintiff’s testimony is that he received orders to do the work from either Mr. Prague or his representatives. All of the bills were presented to Mr. Prague and were paid by him. He testified that he did not know at the time that they were for work done upon the houses of Mr. James ; but that was a fact of Avhich he could not have been ignorant, as each bill plainly specified the house upon which the services and materials charged for had been expended. There is no visible reason for sustaining this objection.

The defendant further objects that the said bills include charges—amounting to $221.85—for moneys expended :by the plaintiff without request or authority on the part of the defendant. This item was paid by the plaintiff to the department of public works for building purposes,’ or ‘ building permits,’ or permits for building purposes ’—by which I understand permits to connect the defendant’s premises on 86th and 87th streets with the croton mains. Mr. Prague testified that he ‘ did not order him (the plaintiff) to pay them; ’ that it must have been done by the mason for water purposes ; ’ that it was paid for the mason—lie used the water there; ’ that it is outside of me altogether; ’ and that I don’t know anything about it, except that he paid for the water for the mason, and there is a bill rendered to me.’ The mason referred to had contracted with the defendant to do the mason-work of the building which the defendant was erecting upon the premises mentioned above. His testimony is that the permits were not procured by his. direction and that he had no knowledge whether the water taps were put in by plaintiff. The plaintiff testified that he procured and paid for the permits at Mr. Prague’s request. Mr. Prague admits that the plaintiff’s contract to do the plumbing in said buildings did not provide that he (the plaintiff) should pay those items for building purposes/ and that the bill was rendered to him before the buildings were completed and before the mason had Heft the job.’ The weight of testimony is against the defendant’s claim.

“ Another objection is that the defendant is charged with the sum of $110 for work, materials and expenditures which the plaintiff was bound to do and furnish by the terms of his contract. Included in this is an item of forty dollars paid by McSorley for sewer permits. He says that he obtained these permits at the request of the defendant, who promised to repay him the money expended. This is not denied by the defendant, and he admits that the permits related to buildings on the Ninth avenue mentioned in the contract of June 25, 1888, and were obtained by the plaintiff prior to the making of that contract. His claim, stated in his own language, is as follows: ‘ He (the plaintiff) was on the ground there and had commenced this work. If he hadn’t got the job, he would have been paid for that work outside of any contract; but as long as he took the job it flowed on and was included in the' contract. We always do that.’ He was asked—‘Will you state how the $40 comes to be included in the contract of June 25, 1888, that appears to have been paid two months prior to that time, and before you had ever entered into a contract with McSorley' for plumbing those nineteen houses ? ’ His answer was—‘ Because, if the same plumber that originally starts the work finally makes a contract, it is covered in his contract.’ This, doubtless, was Mr. Prague’s understanding, but it does not appear that it was assented to by McSorley, or that he had any knowledge of any general custom applicable to or governing such cases, and there is nothing in the written contract to show thatMcSorley’s claim for the money expended for these permits, based upon both the defendant’s prior request and his subsequent promise, was in any respect waived or released by the provisions of that instrument. These views dispose, also, of the objection to the items for water taps and paving in plaintiff’s exhibit 28.

The last objection to the plaintiff’s claim, under the bills put in evidence by him, is an alleged over-charge of $6.50 in exhibit number 13. The proof does not sustain it.

The plaintiff’s alleged cause of action is, therefore, in my opinion, established to the extent of the sum of $1,689.87, the amount of the said forty-nine bills for extra work. Whether the plaintiff is also entitled upon this accounting—for this action is substantially that— to be credited with the whole or any part of the $600 retained by the defendant out of the contracts of August 29, 1887, and February 18, 1888, will be considered in connection with the matters alleged in the way of counter-claim by the defendant.

" The brief submitted by the learned counsel for the defendant, points out with great clearness the grounds of the defendant’s objections to the plaintiff’s alleged cause of action, and also the grounds of the defendant’s counter-claims. It has been of great assistance to me in the examination of this case. Some of the objections raised by it have already been disposed of; others remain to he considered.

" Objection is made that the 108 bills rendered by the plaintiff for extra work include duplicate bills amounting to $123.02. The objection is well taken.

“ Another objection is that the bills contain overcharges for materials furnished, amounting to $258.11. The testimony on this point is unsatisfactory on both sides. I have examined it with care and patience, especially that of Mr. Napier, which was given with great frankness and intelligence. My conclusion is that the objection is not sustained.

“ The defendant does not deny that the work and materials specified in the bills 3-24-30-64-66 and 67 (produced by him) and charged at $60.30, were done and furnished by the plaintiff, but insists that they are included in the written contracts, although he admits that he does not know where part of the work charged for was done. I have not been referred to, nor do I find, any clause or provision in contract or specifications which seems to support the defendant’s claim. The plaintiff testifies that the charges are all for extra work rendered at Mr. Prague’s request.

: “ A further objection is that the defendant should not be charged with the sum of $33.34, the items of which are set forth in defendant’s exhibit 28. The facts, as I understand them, are as follows: The defendant purchased of Elliott Zabrowski a lot on the north side of 86th street, east of the 9th avenue, and erected a house thereon. A small wooden building stood upon the lot, which the defendant (so he testified) moved upon land adjoining, which belonged to Zabrowski. This fact fairly warrants the inference that the building was reserved by Zabrowski in his contract with defendant, and that defendant assumed the duty of removing it to the adjacent premises. It had connections with the Croton main. The disputed services were rendered in severing these connections before, and in restoring them after, the building was removed. • The work was done by the plaintiff’s men, by direction of the defendant’s superintendent, and is a proper and just charge, I think,against Mr. Prague.

" The defendant’s final claim is that the plaintiff did not fully perform his said contracts with the defendant; that some of the work was done in an unworkmanlike and defective manner; that some of the materials furnished were of an inferior quality, and not such as the contracts called for; and the defendant has thereby sustained damages in the sum of $2,219.89. This sum, according to a schedule submitted by the defendant, is composed of four items, the first of which is an item of $665.43 for repairs to the plumbing work in the nineteen houses and three flats mentioned in the contract of January 24, 1889. The defendant’s testimony is that in July, 1889, he had a conversation with the plaintiff about defective work and allowances to be made by the plaintiff therefor; that plaintiff said to go ahead and make good what I could of it,’ and that he Avould make whatever allowances were right; and that after-wards he (the defendant) " paid a lot of bills.’ McSorley denies that such a conversation took place. I am. unable to find any satisfactory proof that the work done by McSorley upon the building referred to was so defective as to require this outlay to put it in good condition or make it conform to the requirements of his contract. The terms of the contract were explicit and peculiar. The plaintiff Avas required to finish the plumbing work ‘ in a good, workmanlike, and substantial manner, to the satisfaction and under the direction of the said John Gf. Prague, to be testified by a writing or certificate under the hand of the said John Gf. Prague,’ and payment was to be made by the defendant as follows: ‘ As the work progresses 75 per cent., and the balance when the whole work is fully completed, agreeable to plans and specifications—provided that in each of the said cases a certificate shall be obtained and signed by the said John Gf. Prague or his superintendent of works.’ It is a significant fact that McSorley quit work upon the buildings about March 12, 1890, and that on that day the defendant paid him in full for all moneys due upon the contract, taking from him a receipt as follows: Received, New York, March 12, 1890, by cash, five hundred and fifty dollars in full of this contract for three flats and nineteen houses, including the supplementary contract of $4,000 attached, and also including $350 on the three flats.’ . Much the larger part of the $665 had then been expended by the defendant, and his relations with the plaintiff were no longer friendly. It is difficult to believe that he would have paid in full, without objection, the balance remaining of the contract price, and also extra compensation for extra work upon the flats, if there had existed the cause of complaint against the plaintiff for defective work, which is now asserted, on account of which the defendant had already been put to hundreds of dollars of expense.

" Another item of the schedule above referred to is the sum of $891.31 for difference in quality of materials.’ I have carefully examined the testimony upon this point. It does not, in my judgment, warrant the allowance of this claim. Moreover, these materials were furnished and used by the plaintiff from time to time during the progress of his contracts, and were open to the inspection of the defendant, and of his agent, an experienced sanitary engineer, who was employed to look after the plumbing work, and who made examinations of that work several times a week for" more than a year before it was completed, and, as already mentioned, the plaintiff left the work and .received full payment of the contract of January, 1889, without objection on the part of the defendant. The rule declared in the case of Oregon Improvement Co. v. Roach, 117 N. Y., 531, would seem to preclude the allowance of this claim, even if it were sustained by satisfactory proofs.

“ The same objections apply to another item of the same schedule—‘ Cost to complete, $578.50.’ This item is made up of $300 for overflows tó tubs and sinks, $258.50 for 23 1-2 pairs of basin legs, and $20 for ten oak water-closet lids. Mr. Napier testifies that the overflows from the wash tubs were omitted.’ I find no testimony as to their value. He also testifies that ten pairs of basin legs and the ten oak lids were also omitted. The plaintiff’s testimony is that the lids and all the basin legs called for by his contract were provided.. The charge is not sustained.

The fourth and last item in the said schedule is an item of $84.65 for resetting water closets in eleven of the nineteen houses mentioned in said contract of January, 1889. This is disallowed for reasons already stated.

“ My conclusion, upon all the testimony, is that there was a substantial, if not an exact, performance by Mc-Sorley of his several contracts with the defendant; that he is therefore entitled to recover in this action the balance remaining unpaid on the contracts of August 29, 1887, and February 18, 1888, and that no part of the over-payments and counter-claims alleged by the defendant has been established. Crediting the plaintiff with $69,818.89 (the amount of the contracts and his claims for extra work and materials and moneys expended), and charging him with $69,167.81 (the amount of moneys paid to him by the defendant), the balance appearing to be still due to him is the sum of $651.08. He, however, contends that the $69,818.89 does not represent or include all of the defendant’s indebtedness to him, on account of which the $69,167.81 was paid. His claim is that by' direction of Mr. Prague he put double plumbing ’ in five of these houses on 86th street, east of the Ninth avenue, for which Mr. Prague agreed to and did pay him the sum of $1,500, which sum is not included in the bills rendered by him to Mr. Prague, but is included in the above amount of payments. The testimony shows as follows:

On June 25, 1888, the plaintiff agreed ‘ to furnish all the plumbing work in nineteen houses and three flats, situated on West 86th and 87th streets, 8th, 9th, and 10th avenues, for the sum of $32,550, andan extra charge of $300 for each and every house in which double plumbing is ordered by John Gr. Prague,’ and to take in part payment a house on West 86th street, with all gas fixtures now in place, subject to a first mortgage of $24,000.’ The plaintiff desired to be relieved from this latter part of the agreement, and about the 17th of December, 1888, a new arrangement was made between the parties, by which the defendant, in consideration of a credit or allowance of $3,500, released the plaintiff from his obligation to take the house, and by which, also, certain changes were made in the specifications for plumbing work, principally affecting the five houses in 86th street above mentioned. For these changes the plaintiff was to receive $4,000 additional compensation. On the 24th of January, 1889, the parties executed a new agreement, by which McSorley agreed, for the sum of $32,250, to do the plumbing work of the said nineteen dwelling houses and three flats ‘ agreeably to the drawings and specifications made by John Gr. Prague, architect, and signed by the said parties and hereto annexed,’ and also to provide the necessary materials for the completing and finishing all the plumbing work and other works of the said buildings mentioned in the plumber’s specifications.’ This agreement also provided for the payment to plaintiff of the additional $4,000, for which he agreed ‘ to put in extra improved plumbing in the five houses on 86th street, east of Ninth avenue, for and as specified in specification in detail attached to this contract.’ This specification is a memorandum dated December 17, 1888, the day when the original agreement of June 25 was first modified, as above narrated.

“ There is no dispute over the meaning of ‘ double plumbing.’ It consists of double boilers, one inside of the other, and a double supply of connecting pipes. The defendant admits that double plumbing was put by his order in the five houses east of the Ninth avenue. But he contends—first, that the agreement of June 25th was superseded by that of January 24th (and I agree with him); and second, that the double plumbing in the five houses was included in the latter contract. He says, ‘ there is $4,000 paid for double plumbing and extra fixtures in those houses.’ This is a plain mistake. The agreement of January 24th expressly declares that the additional $4,000 is to be paid for the ‘ extra improved plumbing’ specified in the memorandum of December 17th. That memorandum makes no mention of double plumbing. Nor is it provided for in the agreement, nor in the specifications therein referred to. Therefore the conclusion seems to be unavoidable that this double plumbing was extra work, outside of the plaintiff’s contract engagements, and as it was done at the defendant’s request, the law implies an agreement on his part to pay its fair and reasonable value. I take this to be the sum of $300 per house, as stipulated in the agreement of June 25th. No bill for this double plumbing was presented to the defendant by McSorley, because, as he testified, he considered that it was contract work under the first agreement relating to these houses.

“The plaintiff also claimed upon the trial that he should be credited in his account against the defendant with the sum of $300 paid to one Brahm for marble, by defendant’s direction. The proof shows that such payment was made by him, and that the money was refunded to him by the defendant. It is credited to the defendant in the plaintiff’s books, but does not enter into the $69,167.81 which the defendant claims to have paid and the plaintiff admits having received.

“ The other marble bill, over which there was some dispute, amounting to $1,417.98, is bill number 108 of defendant’s exhibit A, and is admitted by the defendant.

Charles W. Dayton, for appellant.

Hatch & Warren, for respondent.

The plaintiff is entitled to judgment for the sum of $2,151.08, with interest.”

Per Curiam.

We find no errors in the rulings of sufficient weight to warrant a reversal. The testimony satisfactorily sustains the findings of the referee and justifies the judgment rendered.

For the reasons set forth in the opinion of the referee the judgment is affirmed, with costs.


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

text:
    MARCUS B. HEILNER, Respondent v. CHINA MUTUAL INSURANCE COMPANY, Appellant.

      Marine insurance, policy of—Proof of loss, and of interest and adjustment required by policy.

    Defendant claims that proofs of loss intended by the policy were not presented by plaintiff before the referee. Held, it may be admitted that the insured did not present, at least in full, the proofs named in the policy. The defendant, however, took the position, that it was not liable because it had cancelled the policy before the loss. This position, if it did not announce, yet it necessarily involved, an intention not to require or not to receive proofs of loss, which would be a transaction that would signify that the policy was not cancelled. On the facts in the case a finding would be sustained that the acts and declarations of the defendant would justify the insured in thinking that the defendant did not require formal proofs of loss to be made.
    Defendant also, claimed that the risk upon the cargo had not been approved as the policy required. On a review of the evidence in the case, Held,, that as to the matter of approval, in fact, and the method in which it was regularly made, a referee could find for the plaintiff on this subject, and on this ground there was no reason for reversal of the judgment.

      Defendant insisted that the policy was cancelled before the coal was put in the boat, the risk under the policy beginning at the loading of the cargo. There was sent, by the plaintiff, before the risk began, a letter which announced the intention of defendant to cancel the policy. To effect the cancellation it was necessary that some act should accomplish the intention, and the burden of proving that act rested upon the defendant. Held, that it was not absolutely or ihcontrovertibly proven, and whether or not it was done depended upon inferences from the testimony that were conflicting and upon the comparative credibility of witnesses, and the referee found that there was not a cancellation and upon sufficient evidence to sustain the finding.
    After the boat and cargo had been sunk in the bay they were raised by one Baxter, who sued the plaintiff in admiralty for the salvage services. The plaintiff notified the defendant and required that it should defend the action, but it did not defend. The plaintiff defended the action and judgment' was entered against him. In the present action X>laintiff recovered not only the amount of that judgment in the admiralty suit, but also the cost of that action and certain disbursements made in the same, including counsel fees, etc. Defendant claims that if liable at all it is not liable beyond the amount of the judgment. Held, that, as between the parties, the defendant was bound to pay the wrecking expenses and to indemnify the plaintiff in that regard, yet in the admiralty salvage action the plaintiff was bound primarily to pay the claim; therefore, when the defendant omitted to defend, it was only reasonable that the plaintiff should appear and defend by counsel to prevent any other recovery against him than such as was just and in accordance with the facts. The referee was correct in allowing the amounts referred to as costs, disbursements and counsel fees.
    On the trial of the action defendant’s counsel moved before the referee to dismiss the complaint on the following ground, among others, namely, that it did not contain any allegation that proof of loss was exhibited to the defendant thirty days before the commencement of an action to recover the same. There is an omission to allege in the complaint that such proofs were exhibited to defendant thirty days before the beginning of the action. Held, that this omission was fatal, for it did not appear by the complaint that the loss was due and payable, and there should be a new trial.
    Before Sedgwick, Ch. J., Dugro and Gildersleeve, JJ.

      Decided March 14, 1892.
    Appeal from judgment entered upon the report of a referee.

      Clarke v. Bull, for appellant.

      Joseph A. Welch, for respondent.
   By the Court.—Sedgwick, Ch. J.

The action is upon an open policy of marine insurance issued by the defendant. The action was referred and the plaintiff had judgment. The subject of the insurance was a cargo of coal.

It is objected by the defendant that before the referee there was not, after the loss, presented by the plaintiff the proofs of loss intended by the policy. The words of the policy are “ proof of loss, proof of interest and adjustment.” It may be admitted that the insured did not present, at least in full, the proofs named in the policy. The company, however, took the position that it was not liable because it had concelled the policy. This, if it did not announce, yet it necessarily involved, an intention not to require or not to receive proofs of loss, which would be a transaction that would signify that the policy was not cancelled. Moreover, on the facts of the case, a finding would be sustained, that the acts and declarations would justify the insured in thinking that the defendant did not require formal proofs of loss to be made.

It is also argued by the learned counsel for defendant, that the risk upon the cargo had not been approved as the policy required. By the policy it was to cover such risks only as may be approved and endorsed thereon. In fact the policy being with the insured, the company never approved or endorsed upon it the risks they took. When the policy was issued and given to the insured, a memorandum book was given. According to the testimony of the agent of the defendant, the approval and endorsement intended by the policy were made and to be made in this book, for he testified that when the entries of the book were filled in, the book would be sent to the office and there in case of approval the initials, “ D & P. Attys.,” would be placed in the column of the book headed approved. There were no such initials in the book opposite the name “ John A. Post,” a boat which carried the coal insured. On the trial the plaintiff relied upon another entry made in the book, in the column Approved.” When it was intended to load boats with coal, and in advance of loading, the plaintiff would enter in the book the name of one or more boats, and send the book to the defendant’s office. After being examined by the company it would be returned with the initial D ” in the column “ approved.” Such had been the course of business during the running of the policy. A referee would be sustained in finding that such initial signified, to an insured that there had been an approval by the company. And as to the matter of approval, in fact the method in which it was regularly made, the evidence of the agent was not conclusive, and, on the whole, a referee could find for the plaintiff on this subject. This ground shows no reason for reversal.

It is insisted that the policy was definitely cancelled before the coal was put in the boat, the risk under the policy beginning at the loading of the cargo. There was sent, before the risk began, a letter which announced the intention of the company to cancel the policy. To effect the cancellation it was necessary that some act should accomplish this intention. The burden of proving that was upon the defendant. It was not absolutely or incontrovertibly shown here. Whether or not it was done, depended upon inferences that were conflicting, and upon the comparative credibility of the witnesses. The referee has found upon enough evidence that there was not a cancellation.

On this point also, the receiving of premiums was proof that the policy was pending Avithin the intention of the defendant. It was received as to other coal after the loss in this case. The policy Avas an entire contract, and it all existed or no part of it did. It may have been the fact that the company’s officers believed that the risks paid for were pending at the time of the supposed cancellation, and, therefore, not affected by the cancellation.' Such, however, was not the case, and to prevent the continuance of the policy beyond the time- of the cancellation as claimed by the company, there should have been a return, or an offer of return, with notice of the mistake of facts. Nothing of this kind was done.

Sufficient prima facie proof of the sea-worthiness of the boat was given by the plaintiff-. The captain testified that the boat was sea-worthv and fit for the voyage. The owner testified as to repairs to the boat from time to time ; that before the voyage, she had been thoroughly overhauled, and that to him she appeared to be right.

On the trial, it appeared that after the boat and cargo had been sunk in the hay, they were raised by one Baxter, who suéd the plaintiff in admiralty for the salvage services. The plaintiff notified the defendant of the pendency of this suit and required that it should defend it. The defendant did not defend. The plaintiff defended, and judgment was entered against him. On the present trial the plaintiff recovered beside the amount of the judgment in the admiralty suit, the costs of that suit, certain disbursements made in it, and also counsel fees to counsel for services in the suit. The defendant contends that it is not liable beyond the amount of the judgment, arguing that the other expenses were unnecessarily incurred, or, in other words, that the plaintiff should have prevented the admiralty suit by paying Baxter’s bill, or should not have defended the suit.

While between themselves the defendant was bound to pay the wrecking expenses and to indemnify the plaintiff in that regard, yet in the admiralty salvage' action the plaintiff would be bound primarily to pay the claim. Therefore, when the defendant omitted to defend it was reasonable that the plaintiff should appear by counsel to prevent any other recovery against him than such as was just and in accordance with the facts. The referee was correct in allowing the amounts referred to.

It is necessary, however, that there should be a new trial. The defendant moved to dismiss the complaint on the following ground, among others, that it did not contain any allegation that proof of loss was exhibited to the defendant thirty days before the commencement of an action. The complaint alleges that by the policy, in case of loss, such loss to be paid in thirty days after proof of loss, and interest. It further alleges that the plaintiff caused to be exhibited to the defendant due proof of the said loss and damage, but that no part of the same has been paid, etc. There is an omission to allege that the proof was exhibited thirty days before the beginning of the action. Therefore, it did not appear by the complaint that the loss was payable.

Judgment reversed, order of reference vacated, and a new trial ordered, with costs to abide the event.

Dugro and Gildersleeve, JJ., concurred.