author: By the Court, Robertson, Ch. J.

text:
    William H. Springsteen, plaintiff and appellant, vs. John Powers, defendant and respondent.
    1. Where on affidavit upon which summary proceedings to dispossess a tenant are founded is true, and in proper form to give jurisdiction; the proceedings, regular, and taken with the tenant’s knowledge; and he omits to pay the rent claimed; and there is no allegation of either fraudulent representation or concealment by the landlord, to induce the tenant to abstain from paying such rent, in order to allow the former to avoid the lease by procuring a warrant of dispossession, any right of the tenant to an injunction order enjoining such proceedings can only rest either on a contract or an estoppel.

    2. If the proceedings are regular, and free from all fraud or surprise, and the warrant is obtained on notice to the tenant, and on his omission to pay the rent due, nothing short of a contract founded on a sufficient consideration, by the lessor, not to dispossess him by the warrant, or else, after removing him, to give him a new lease, upon definite terms, so as to confer a right to continue in possession, can prevent the legal consequences of issuing such a writ.
    3. An equitable estoppel cannot be created out of a mere executory promise, which is in fact a mere contract and may be specifically enforced, or damages recovered for its non-performance, but only out of a misrepresentation or conceal- , ment of an existing fact or right.
    (Before Robertson, Ch. J., and Barbour and McCunn, JJ.)
    Heard May 13, 1865;
    decided December 30, 1865.
    Appeal from an order made at a special term, dissolving an injunction. The plaintiff was a tenant of the defendant, under a lease having nearly four years to run, at a rent of $700. The plaintiff underlet the ground floor of the house to a person named "Gutter, who, annoyed him by using it as a recruiting office, This use of it also damaged the defendant, by injuring the premises. In August, the defendant, in. order to get rid of Cutter, arranged with the plaintiff that the rent should be demanded of him, that he should make default in the payment of it, and thereupon the defendant should take the usual summary proceedings to obtain possession of the premises ; but that the proceedings should have effect, and the warrant be executed, only as against Cutter. The plaintiff placed a sum of money ($175) in the hands of one Brinckerhoff, where it remained until after the payment of the November rent, subject, at all times, to his own order as well to pay the rent due in August, as the rent that should become due in November.' Cutter came into court on such proceedings, and paid the whole rent of the premises, which was received by the defendant in full of his rent, for the quarter ending in August. When the November rent fell due,.the same plan was again resorted to, the warrant of dispossession was obtained, and Cutter was put out by the marshal. The defendant then sent the marshal to the plaintiff to dispossess him. The plaintiff informed the marshal that it was a proceeding only to get.rid of-Cutter,- that his rent was with Brinck&rhoff ready to be handed over whenever the defendant desired it. The marshal suggested "to the plaintiff to give him two or three keys, and then go down and see the defendant. The plaintiff .took two or three keys from the doors of closets, nearest at hand, and handed them to the marshal, and both proceeded tó the shop of the defendant, where the latter handed the plaintiff the key's, took his rent, together with $9.25 “ court" charges,” and gave him a receipt in the usual form. They parted, and no more passed between them on the subject, until about the 3d of December, when the plaintiff received from the defendant a notice to quit, as a tenant at will. The plaintiff thereupon commenced this action, and obtained andnjunction order restraining the prosecution of the summary proceedings against him. This order was dissolved, and set aside, by the special term, on motion of the defendant, and the plaintiff appealed from the order, which appeal was now heard.

      I. T. Williams, for the plaintiff (appellant.)

      J. Graham, for the defendant (respondent.)
   By the Court, Robertson, Ch. J.

The affidavit upon which the summary" proceedings taken by the defendant to terminate the plaintiff’s lease and eject him and his sub-tenant from the premises in question were founded was true and in proper form to give jurisdiction ; the proceedings were regular, and taken with the plaintiff’s knowledge; he omitted to pay the rent, for whose non-payment they were taken, until the warrant of removal was . issued, intentionally. The complaint contains no allegation of either fraudulent representation or concealment by the defendant to induce the plaintiff to abstain from paying such rent in order to allow the former to avoid such lease by procuring such warrant. Any right of the plaintiff to an injuncton order must rest therefore either on a contract or on an estoppel; neither could exist in this case, unless it arose from some benefit to accrue to the defendant, or injury to the plaintiff, by something growing out of the supposed understanding on which they are founded. An equitable estoppel cannot be created out of a mere executory promise, sometimes miscalled a representation, of a future intention . which is in fact a mere contract, (Maunsell v. White, 4 Ho. Lords C. 156, per Ld. Cranworth,) and may be specifically enforced, or damages recovered for its non-performance ; but only out of a misrepresentation or concealment of an existing fact or right. (Plumb v. Cattaraugus Co. Mut. Ins. Co., 18 N. Y. Rep. 392.) When it is considered to be as it was represented. (Neville v. Wilkinson, 1 Bro. C. C. 543, per Ld. Mansfield.) No allegation of such a representation is made in the complaint. The only imaginable contract by the defendant which would sustain the plaintiff's action would be either one not to dispossess him by the warrant of removal when obtained ; or else after removing him, to give him a new lease upon the same terms as the old one, or some other definite terms, so as to confer a right to continue his possession; this is evident from the termination of such tenancy as it previously existed, by the mere issuing of the warrant, without its execution, as provided in the statute. (2 R. S. 515, § 43.)

If the proceedings to obtain such warrant were regular; and free from all fraud or surprise, and it was obtained on notice to the plaintiff and his omission to pay the rent due, nothing but such a contract founded upon a sufficient consideration, and made in such a manner as to be binding on the defendant, could prevent the legal consequences of issuing such a warrant. •

A contract for a new lease for the time the former one had to run, would be void, if not made in writing, (2 R. S. 135, §§ 8, 9.) If for a shorter time, that should have formed part of the contract. An agreement by the defendant not to avail himself of the remedies the law gave him in case of non-payment of rent, provided the plaintiff would continue to omit to pay it, would be very extraordinary, if not void for want of a consideration ; by it, the defendant would be prejudiced, instead of benefitted, and the plaintiff benefitted instead of prejudiced : since the former would abandon such means of collecting his rent, and the latter gain delay in its payment. If the dispossession of the sub-tenant was the benefit to be derived, it would be impossible to issue the warrant against him without terminating the plaintiff's whole lease, and the agreement must go to the extent of maintaining, or restoring, that, in case of the issuing of the warrant; but it does not appear for whose benefit the sub-tenant was dispossessed; if for the defendant’s, he was entitled to take possession of his part of the premises; if for the plaintiffs, and his lease remained, he had the power of reletting it to the same tenant without the defendant’s assent. It is very difficult to imagine any consideration for the entire abandonment, by the plaintiff, of his rights growing out of the issuing of the warrant, legally binding upon him, from the statement in the papers, before us, of the supposed contract.

In order, however, specifically, to enforce a contract, several ingredients in it are necessary; it must contain a mutual obligation, unless the consideration is executed; (Benedict v. Lynch, 1 John. Ch. 370;) if formed by the acceptance of a proposal, the latter must be precise as to the terms (Fry on Spe. Perf. §§ 221 to 231 inch) and the former unequivocal, unconditional and without any variation. {Id. §§ 168,169, and cases cited.) In the present case, there was no obligation on the defendant even to take the proceedings under the supposed agreement, and no consideration moving from the plaintiff, except his refusal to pay his rent, for agreeing to abstain from dispossessing the plaintiff; the only acceptance by the defendant of any proposal by the plaintiff was by silent acquiescence;” such proposal was. oral; it was to take proceedings to obtain a dispossessing warrant to remove the obnoxious subtenant;' no allusion was made in such proposal to the effect of such warrant on the rights of the plaintiff. Without that, it is to be presumed he was to be left to his legal rights derived therefrom ; the amount of all the allegations in the complaint, as to what took place at the time of such proposal, is substantially that the defendant demanded the rent when it became due, the plaintiff suggested a repetition of a previous unsuccessful experiment, to take summary proceedings, in order to remove the objectionable tenant, and gave reasons for believing that such second trial would be successful; the defendant merely expressed doubts as to such success, and parted from the plaintiff without saying any thing more. On such previous occasion, the defendant, as alleged in the complaint, proposed to the plaintiff not to pay his rent, upon which he, the defendant, would institute proceedings, ostensibly to dispossess both the plaintiff and his sub-tenant, but in fact to eject the latter only, to which the plaintiff assented ; which was the only understanding be-1 tween the parties alleged in the complaint; yet the plaintiff avers therein, that on the second occasion he was under the full ' belief that the defendant intended to eject such sub-tenant by similar proceedings, and upon the same understanding as “ to their effect against the plaintiff,” without furnishing any ground for such "belief but the defendant’s silence, which certainly did not warrant it. A mere arrangement, that a certain proceeding was to be taken and enforced against one party, would not necessarily imply that its effect was to he limited to that use, or that, if by statute it enured to other purposes, such result was not to follow. On such second occasion, there was still less room for such implication; since the application, and suggestion came wholly, from the1 plain tiff; and unless the.conduct, and language of the defendant on that occasion, beyond mere, silence, was such as to show he meant to bind himself not to. coerce- payment of the rent, or annul the lease, by such statutory remedy, he did not relinquish its full benefit. If the .plaintiff, desired to restrain him from using it, as against him, he should, have taken care to have secured such a stipulation as would have protected him. The defendant, however,, in. his answer,, denies-any such conversation as . 'that stated in the complaint,i and alleges that he notified the plaintiff, that he would'dispossess him if he did not pay the rent due, and if driven to take proceedings for the purpose, they would be as hostile to thé plaintiff as any one else, and- similar allegations, in substance; are contained in an. affidavit of the defendant, although such latter-allegations are denied by the plaintiff, also in an affidavit. These contradictory- statements would leave the matter in doubt, and if the case depended upon them, would require additional evidence to turn the scale in favor of the plaintiff; but in fact the testimony of . the marshal, who served -the Warrant, - (Lyons,) as to the actual dispossession óf. the -plaintiff; and his surrender of the- premises, is strongly in favor of the defendant; the evidence' of other parties, as to the opinion expressed by such marshal as to the right of the plaintiff, after receiving the rent, and his promise to return the warrant, do not impugn his testimony in that respect; besides, no explanation is given by the plaintiff of the object of his delivering up the- keys to such marshal, which he admits. The preponderance of' evidence, if any, is therefore in favor of the defendant. . . : ,

All the equity of the complaint being, therefore, denied in the answer -and accompanying affidavits, - and there being no additional evidence to support it, the injunction order was properly vacated. (Falconer v. Elias, 3 Sandf. 731.) An injunction pendente lite is, at most, a provisional remedy, granting temporary relief. The ordinary mode of determining whether it was properly granted, is on affidavits, when the court must pass upon the merits of the case presented ; if a plaintiff cannot sustain his case prima facie upon ex parte affidavits, he is unlikely to do so on the trial; at all events, if he does so, the injunction can be restored. I cannot subscribe to the rule, that if a verdict in favor of the plaintiff, upon the facts appearing in the prelimipary affidavits, would be sustained, the injunction order must be retained. On the contrary, unless it clearly appears that the plaintiff would most probably have such verdict on such facts, in other words, that the balance of probability is in his favor, it ought to be discharged.

The plaintiff has also brought a certiorari to the Supreme Court upon the proceedings in question, which, although it does not prevent the execution of the warrant of removal, suspends the effect of the judgment of the justice in every collateral matter, and every thing but such execution. (Launitz v. Dixon, 5 Sandf. 249.) The adjudication, therefore, that a warrant issue, cannot be used, until the determination of such certiorari, to disprove a holding by the plaintiff under his former lease. If those proceedings are sustained, for the reasons before given, the plaintiff must be left to his remedy at law, upon any agreement by the defendant he may be able to prove, for such damages as he may be entitled to recover.

. The order must be affirmed with costs, without prejudice to the rights of the plaintiff to amend his complaint, and upon such amended complaint, and new affidavits, to apply for a new injunction.


source: Caselaw Access Project

author: Robertson, Ch. J.

license: Public Domain

text:
    Elizabeth McCoy, plaintiff vs. Frederick L. Vulte, et al. executors &c. defendants.
    1. A testatrix having in her possession, belonging to her, four trunks filled with wearing apparel, &c.; a tin box containing some articles of'jewelry, &c.; a leather traveling valise containing jewelry belonging to herself, as well as per- • sonal ornaments belonging to her deceased husband iu his life time, and owning no other trunks, containing wearing apparel, silver or jewelry, executed a will. By that will she bequeathed to the plaintiff “ all her wearing apparel, household linen or stuff and jewelry not ” thereinafter specifically bequeathed, which “ was then contained in eight trunks, together with the said trunks,” &c. She bequeathed one half part of all her residuary-estate to a friend, and the other half to the two children of her sister’s husbandi The testatrix, until the time of her death, remained in possession of the four trunks, with the tin box, and their contents, and continued to own the valise with its contents; and did not then own any other trunk containing wearing apparel, household linen, stuffs, or silver or jewelry. The residuary legatees claimed the contents of the valise, under the general residuary bequest. Held that the plaintiff was entitled to the articles of jewelry belonging to the testatrix contained in the valise, under the bequest to her, in the will; because she would have had no jewelry in a trunk, unless the valise were one.
    2. When the whole of a description does not correspond with any existing subject, but a part does, the residue "of it beyond such part may be disregarded as erroneous and surplusage.
    (Before Robertson, Ch. J. at special term.)
    Tried November, 1865;
    decided December, 1865.
    This was an action against an executor for a specific legacy. The testatrix, who was a widow, in the year 1864, had in her possession, and belonging to her, four trunks filled with wearing, apparel, household linen, blankets and bedding, containing also -a piece of plate, some plated ware, gold headed canes, opera glasses, chessmen and some ornaments of trilling value. She also had in her possession, and belonging to her, a tin box containing some articles of jewelry, including some articles belonging to a deceased parent, a watch and eyeglass. At the same time she owned a leather traveling valise and its contents, then deposited with a friend. It contained jewelry belonging to herself, as well as personal ornaments belonging to her deceased husband in his life time. She then, owned no other trunks containing wearing apparel, household linen or stuffs, silver or jewelry.
    In the same year she executed an instrument admitted to probate by the proper officer, as her last will and téstament. In it, among other things, she bequeaths to the plaintiff, her sister, “all her wearing apparel, household linen or stuff, and jewelry not” thereinafter specifically bequeathed, which “ was then contained in eight trunks, together with the said trunks,” as her separate estate, and in case of her death before the testatrix, she gives the same to two children of her sister’s husband. She next bequeaths therein a silver tea set to. one of such children. After several general devises and legacies, she bequeaths thereby one half part of all her residuary estate to a friend, and the other half to the same two children of her sister’s husband, with a bequest over in case of their decease or incompetency, to the same friend.
    The testatrix, until the time of her death, remained in possession of the four trunks, with the tin box before mentioned, and their contents, and continued to own the valise, so deposited for safekeeping, with its contents, and did' not own any other trunk, containing any wearing apparel, household linen and stuffs, silver or jewelry.

      B. D. Silliman, for the plaintiff.

      Albert Matthews, for. the defendants.
   Robertson, Ch. J.

The contest in this case is respecting the contents of the valise in the hands of a third party at the time of the death of the testatrix, which the residuary legatees claim under the general residuary bequest. I do not perceive any-great difficulty in the construction of the specific bequest. It is contended that the words “ which is now contained in eight trunks, together with said trunks," are not mere words of description, but limit the general term “all.” There can be no doubt that if the testatrix had had articles of the kind described, in eight trunks, besides others of the same kind, the specific legatee could only have taken those in 'such trunks ; but in this case she did not have any jewelry in a trunk, unless the valise be one ; and she had some in that. The bequest as to jewelry, must therefore fail, unless the contents of such valise pass thereby. The bequest must be construed so as to take effect upon something, if possible, consistently with.legal rules of construction. When the whole of a description does not correspond with any existing subject, but a part does, the residue of it beyond such part may be disregarded as erroneous and surplusage. In the present case the words are “ all my wearing apparel, &c.” and not “all of my wearing apparel, &c.” which would admit of some . further description with a , relative. pronoun referring to and limiting it. As it "stands, the first part of the sentence is capable of being construed by itself, is applicable to an existing subject; while the subsequent words which defeat the whole bequest as to jewelry, being inapplicable to any existing subject, may be disregarded, without altering the sense, and should be so to prevent such a result.

Evidence was given on the trial -to show that some of the articles of jewelry contained in the valise did not belong to the testatrix, but to her husband or his executors. If so, of course she could not bequeath them, but that would not prevent the bequest from taking effect upon what was hers.

The plaintiff is entitled to judgment for the articles of jewelry belonging to the testatrix contained -in the valise deposited with Mr. Martin, with costs to be paid out of the estate. Findings of fact may be prepared by the plaintiff’s attorneys, and submitted to me according to this opinion.


author: Robertson, Ch. J. Barbour, J.

text:
    Eben Sutton et al. plaintiffs and respondents, vs. John B. Cronin et al. defendants and appellants.
    1. A complaint was held, on demurrer, to be defective in substance, which alleged merely the following facts: That the plaintiffs sold to the defendants by samples, a certain quantity (3000 pairs) of merchandize, (blankets,) to be paid for within a certain time (30 days) after delivery. That the plaintiffs delivered about one half of such merchandize. That some of it did not correspond with the samples, and that the plaintiffs, in consideration thereof, guarantied it to be of a quality to pass inspection by the government, on purchase. That the defendants then agreed to receive such merchandize, and pay for it, and, after a portion had been delivered, promised to pay the price, but afterwards announced their intention to return that part delivered. That the plaintifls notified them that if they did so, the plaintiffs would sell such merchandize to the government, and hold them responsible for any loss. That the defendants sent the merchandize to the plaintiffs, who sold the samé to the government for the best price they could get, and rendered an account of the sales, showing the sum due and owing from the defendants, which still remained unpaid, and which the plaintiffs claimed to recover.
    2. Such a return of the goods, by the defendants, could not constitute an assent by the plaintiffs, to the terms of the notification, so as to form a contract binding on them. The latter could not, by such notice, compel the former to keep the goods or assent to its terms.
    (Before Robertson, Ch. J., and Barbour and McCunn, JJ.)
    Heard May 12, 1865;
    decided December 30, 1865.
    This was an appeal from an order made at special teYm, overruling a demurrer to the complaint; which lattér is as follows:
    [Title of action.] “ The above nameá plaintiffs complain against the above named defendants as follows : "

      First. That at the several times hereinafter mentioned or referred to, the said plaintiffs were co-partners in business in the city of New York, under the firm name of Sutton, Smith & Co., and the defendants were co-partners in business in said city under the firm name of Cronin, Hurxthal & Sears.
    • Second. That on or about the 7th day of March, 1863, at the city of New York, the said plaintiffs’ firm sold to said defendants’ firm, three thousand pair of blankets, some at seven dollars and fifty cents per pair of ten pounds weight, and some at seven dollars and seventy-five cents per pair of ten pounds weight. The sale was according to samples.
    That the said blankets were to be paid for as follows : in securities of the government of the United States, issued in the month of January, 1863, at par, to the amount of the entire purchase, at the prices aforesaid, such securities to be furnished within thirty days after delivery.

      Third. That after such sale the said plaintiffs delivered to said defendants about one half of the blankets. That on comparing some of the blankets with the samples, it was found that they did not precisely correspond, and in consideration ■thereof, and as a substitute for conformity between the blankets and samples, the said plaintiffs guaranteed to the defendants that the said blankets (which the defendants alleged they purchased to sell to the government of the United States) were of the quality which would pass inspection by said government on purchase. In consideration whereof, the said defendants agreed to receive the blankets aforesaid, at the price aforesaid, and to pay for them as aforesaid. And the said plaintiffs say that said blankets were of the quality which would pass inspection as aforesaid.

      Fourth. That after a portion of said blankets had been delivered to the defendants, although the said defendants promised to pay the amount aforesaid, yet in the month of April, A. d. 1863, after such sale, under certain pretexts by them assigned, and which were wholly unfounded, they announced their intention to return such óf the blankets as had been delivered to them. Whereupon the said plaintiffs duly notified the defendants that if the said defendants returned said blankets, or any of them, it would be upon the express condition that by reason of such act, and the refusal to pay for the blankets delivered, the said plaintiffs would be authorized to, and would sell all the blankets at market prices, to the government of the United States, on the account of said defendants, and hold the defendants responsible for any loss or expense said plaintiffs might sustain by reason of so doing.

      Fifth. That having been so informed, as aforesaid, of the condition on which alone the said blankets which had been delivered to the defendants, could be delivered back to the plaintiffs, the said defendants sent the same, with written certain invoices to the plaintiffs, who thereupon advised the' defendants that they would effect sales, and send an account with the usual charges. And thereafter the said plaintiffs, having first informed the said defendants of the terms on which they proposed to sell said blankets, did sell and dispose of the same to the government of the United States for the best terms they could procure therefor, and rendered an account of the sales, with charges and expenses, showing that on or about the twenty-third day of September, a. d. 1863, there was due and owing from the defendants to the plaintiffs the sum of eight thousand six hundred and fifty-nine -Afo dollars.

      Sixth. That the said account rendered was in all respects true and just, and that at the date thereof the amount last mentioned was due and owing to said plaintiffs, as above stated, and the same has ever since remained and now is wholly due and unpaid.
    Wherefore the said plaintiffs pray judgment for the said amount of eight thousand six hundred and fifty-nine dollars, with interest thereon from the 22d day of September, A. d. 1863, besides the costs of this action.”
    The defendants demurred to the complaint, on the ground that it appeared from the face thereof that it did not state sufficient to constitute a cause'of action.

      J. N. Balastier, for the defendants, (appellants.)
    I. The complaint is so vaguely drawn, as, even with the aid of conjecture, to be scarcely intelligible. In any aspect, the facts stated are insufficient to constitute a cause of action.
    1. The' contract alleged was void for uncertainty. It is too indefinite to be enforced.
    (a.) Some of the blankets were at $7.50 per pair of ten pounds weight, some at $7.75 per pair of ten pounds weight.
      Non constat the price of the residue, or the price of any of a different weight, or that all were to be of that weight.
    (&.) The blankets were to be paid for “ in securities of the government of the United States, issued in the month of Janury, 1863.” What securities ? Bonds, certificates of indebtedness, treasury notes, or what other of the securities of the various grades and values ? Is the signification of the term “ securities ” so definite that in an action on contract for the recovery of money only, like this, (see summons,) the law can take cognizance of it and enforce a contract for the delivery of such .securities, or even their value in money ?

    2. If such a contract be valid, it must be as a contract for an exchange of commodities, and’ not for a sale of goods: But in either aspect it is an entire contract. No right of action can accrue for its breach, until after full performance by the plaintiff. (McMillan v. Vanderlip, 12 John. 165, and cases cited. Jennings v. Camp, 13 John. 94. Lantry v. Parks, 8 Cowen, 63.)

      (a.) There is no averment either of full performance or of an offer to perform. The allegation is that only “ about half the blankets ” were delivered.
    (5.) The return of such as were delivered under the circum- . stances stated in the complaint, did not exonerate the plaintiffs from their obligation to deliver or tender the residue.

    (c.) Nor did such return authorize or warrant the subsequent notice- alleged to have been given by the plaintiffs, nor the subsequent action of the plaintiffs thereupon. The plaintiffs should have refused to receive the goods, and should have tendered the residue, if they designed to enforce the contract. • Their acceptance of the goods, (notwithstanding their notice,) operated to rescind the contract. (Coon v. Reed, 1 Hilton, 511.)
    ' (d.) The plaintiffs’ notice could not operate as a modification of the contract between the parties. Gontracts are mutual. Ex parte notices cannot avoid or alter them. There can be no modification, except by the consent of both. The plaintiffs gave an unauthorized notice. The defendants were under no obligation to express their assent or dissent. They stood on their rights. If the plaintiffs saw fit to rely on that unauthorized notice, they did so in their own wrong.
    (e.) But if the assent of the defendants to the terms of the plaintiffs’ notice were inferrable from their silence, (which we deny,) such inference would only be warrantable in aid of proper averments of assent. The complaint contains no such averment. It neither alleges that the defendants assented to the terms of the notice, nor even that they remained silent. We insist that express assent is requisite to bind them. Non con-stat that they did1 not object. But the complaint avers, that the blankets were returned “ upon certain unfounded pretexts.” It thus discloses a disagreement between the parties wholly inconsitent with acquiescence in the notice.
    3. The plaintiffs having no valid claim against the defendants for the price of the blankets, for the reasons above stated, of course could not charge the defendants with any deficiency in such price resulting from a resale.
    4. If they had a valid claim for the price, and were authorized to sell for the defendants’ account, they could only do so on giving reasonable and proper notice. The notice alleged was insufficient and improper. A mere notice that the plaintiffs would sell to the United States at market prices, without specifying time or place or manner of sale, nor whether the sale would be public or private, is not a notice that they would deal with the goods in the manner authorized and required by law. The sale should have been made, (if it could be made at all, which we deny,) at public auction, upon due notice of the time and place. If not, it should certainly have been made, under the widest latitude allowed to the vendor by the decision of the court in Crooks v. Moore, (1 Sandf. 297,) “in the usual and customary manner,” whatever that may have been, and for the best price that could have been obtained therefor. There is no averment of a notice that they would be, nor is there any averment that they were so sold. Moreover, the plaintiffs had no right to sell “ all the blankets,” if any; their right, if it existed, as to the blankets returned, was confined exclusively to them, and assuming to deal with the residue, without tendering or offering to deliver them, was a rescisión of the contract, “ The best terms the plaintiffs could procure,” especially from a solitary designated purchaser, able to dictate terms, is by no means synonymous with “ the best price that could be obtaiúed ” from the trade as well, as the government.
    5. If does not appear what price was obtained on the resale; nor what charges or expenses were incurred; nor whether the proceeds were applied to the plaintiffs’ credit; nor whether any deficiency remained after such application. Non constat but that the proceeds of the resale greatly exceeded the contract price. What was the contract price ? The government securities, whatever they were, were to be taken in payment at par; but the plaintiffs’ damages, in the event of a breach on the part of the defendants, would be measured by the actual market value. There is no averment as to such value, nor of any damage, nor, in fact, of any refusal on the part of the defendants to deliver them ; in short, no averment of breach of the contract on the part of the defendants at all. Now does it appear that any thing is due to the plaintiffs on such a statement of facts ?
    6. The only allegation tending, however remotely, to sustain the idea of such indebtedness, is that the plaintiffs rendered an account of sales, showing that there was due a certain specified sum, and that such account was true and correct. The mere rendition of an account, whatever it showed, or however true its contents, establishes no cause of action. The averment that it showed that there was a sum due is a mere legal assumption—an inference deduced from facts which are not stated. This is an action for a money demand on contract. The complaint must be governed by the same rules that would apply to an action for goods sold. A complaint averring that A. bought (payable in certain securities) a quantity of blankets, (not specified,) some of five pounds weight and some of ten pounds weight, and that it appeared by an account rendered (not set forth) that there was due to the plaintiff a certain sum, would certainly be bad pleading. Our demurrer is not to be taken as an admission to the plaintiffs’ legal conclusions. ' It may be possible that the facts stated in the account (if any were stated) would, when properly averred in the complaint, constitute a cause of action against these defendants ; but the court is not informed what they were, and if it had been, the mere averment. that they were stated in an account would not have dispensed with the necessity of stating them in an issuable form as an essential part of the complaint. An issue upon the rendition of the account would be immaterial, and we cannot take issue upon the averment that it showed an indebtedness, since that averment is but a mere legal conclusion.
    7. The notion that when a complaint refers to an account the defendant is bound to call for particulars, and help make out a case against himself, is unfounded. The substance of the account must appear in the complaint. Its details are all the defendant is under any obligation to call for. When the substance of the account is not stated, there is nothing upon which to base a call for particulars. If a complaint aver that „ A. owes B. $100, as per account rendered, shall B. be held to call for particulars, or is the complaint bad ?
    8. So as to the idea of the defendants’ obligation to move to make a complaint more definite and certain. The motion supposes and is based upon an indefinite and uncertain averment, and not a total omission to aver material facts. To seek to make an averment that does not appear at all “ more definite and certain ” is simply absurd.
    II. It is impossible to maintain this action except upon the theory that the defendants agreed that the plaintiffs should sell the blankets delivered and not delivered for the defendants’ account, charging the usual commissions. This must be the “ contract,” if any, which the plaintiffs set up.
    1. The court will not infer or imply any such folly on the part of the purchasers, who are trading in the same city with the sellers. No such agreement can be made out, except by unfounded inference, or implication, or naked assumption.
    2. No such agreement is averred in the complaint. The complaint, indeed, discloses a warm dispute, but no agreement between the parties. The defendants give notice that they will return the goods, and the complaint says they did this “ under pretexts wholly unfounded.” The plaintiffs then give notice that if the blankets are sent back they will be sold for account of defendants. Kow it is nowhere averred that the defendants assented to the terms of this notice, and, indeed, such an averment would be incredible on its face. Until the plaintiffs aver that the defendants entered into this preposterous agreement, this action fails. The ex parte notice amounts to nothing. It is not a contract, or condition, or acquiescence on the part of the defendants. If the plaintiffs had said they must be paid a million of dollars if the goods were returned, they would have created as good and binding a contract on the part of the defendants as by giving the notice they did. We returned the goods as we proposed to do, and the more “ unfounded ” our “ pretexts ” the less likely is it that we made any “ agreement ” that the plaintiffs should slaughter them on commission for our account, on any terms a solitary designated purchaser might offer.

      James T. Brady, for the plaintiffs' (respondents.)
    The question presented by the demurrer, is merely whether on the above stated facts, conceded by the defendants, the plaintiffs have a right of action. If so, it is perfectly immaterial what amount they may be entitled to recover. That is to be determined at the trial.
    I. The contract is not void for uncertainty, as the defendants contend. The bargain speaks of, and relates to 3000 blankets ; some of $7.50, and some off $7.75, of the weight of ten pounds. It refers to no other. How many were for one price, and how many for the other, is mere matter of detail, to be settled by proof at the trial. In courts of equity, under the old system, it was well settled that “ an amount of uncertainty must be required in the specific performance of the contract in equity, greater than that demanded in an action • for damages at law.” The cases are collected in Fry on Spe

      cific Performance, Am. ed. p. 166, § 229.) If the agreement •be made certain by means of references furnished by the contract, it will be enforced. (Prater v. Miller, 3 Hawkes, 628.) So in Wiswall v. McGowan, (1 Hoff. Ch. 126,) it was held that where a contract refers to the subject, whether by a vague or an insufficient description, the defect may be supplied by other documents, coming from, or adopted by the party against whom the contract is to be enforced, pending and connected •with the transaction. In the present case, the agreement is oral. It relates to a given number of blankets. It is averred that “some” were to be of one price, and “some another.” It does not declare that the parties did not specifically agree how many of each there should be. But whether they did or not, that point can be settled at the trial, by proof of what the parties said or did, and the account rendered by the plaintiffs ; and the invoices they sent with the returned goods, will furnish, within the rule stated in Hoffman, a clear interpretation of the contract. If the defendants wished for more specific information, or fuller particulars before the trial, their remedy is not by demurrer, but by motion as prescribed in the Code. The policy of the Code is to make general allegations sufficient, and'a general demurrer to a complaint is only good when the facts stated do not constitute a cause of action; or, for. some of the other defects stated in section 144, neither of which is applicable in this case. The only question raised by a demurrer under this subdivision, is whether the plaintiffs, on the facts stated, are entitled to the relief which they claim, and it is immaterial whether that relief be legal or equitable. (General Mut. Ins. Co. v. Benson, 5 Duer, 168.) To make a pleading definite and certain, or to strike from it irrelevant or redundant matter, the remedy is by motion, not by demurrer. (See cases collected in Code of 1864, p. 325.) To obtain particulars the party must apply under the 158th section. Again. In this same connection the counsel for the defendants insisted, at special term, that the word “ securities ” as used in the complaint is not of such definite specification that the law can take cognizance of it. Webster’s Dictionary gives us one definition of “ security,” (citing Blacks tone,) “any thing given or deposited to secure the payment of a debt or the performance of a contract.” The complaint speaks of “securities of the government of the United States, issued in the month of January, 1863.” The meaning of this is plain enough. But even if it were obscure, or the words had a conventional or scientific meaning founded on the laws or language of trade, finance, or government, the contract would not be void.. The sense of the phrase would be a legitimate subject of proof. (1 Greenl. Ev. § 280.)
    II. The defendants also insist that the contract, if valid, is not for the sale of goods, but for the exchange of commodities, and the plaintiffs have not averred performance, or an offer to perform on their part. To this we answer, without admitting that the contract is not for a sale of goods, and because we deem it quite immaterial whether it is or not:
    1st. The averments in the complaint are sufficient. All the plaintiffs agreed to do was to verify their guaranty, and deliver the goods. They say expressly that the blankets were, as guaranteed under the second arrangement, and that they were delivering the goods, when the defendants under pretexts, all of which were false, refused to receive any more, announcing their intention to return what they had received.
    2nd. The act of the defendants prevented full performance. They cannot set this up, and thus take advantage of their own wrong. (3 John. 531. Higgins v. Solomon, 2 Hall, 482.)
    3d. Where the facts show that a tender of performance by the plaintiffs would have been refused, such tender is unnecessary. (Fry on Specific Perform. § 619, p. 374. Terwilliger v. Knapp, 2 E. D. Smith, 86.)
    4th. Besides, the new arrangement by its terms suspended and excused any further delivery of blankets by the plaintiffs, and permitted the return by the defendants, on certain conditions, of those which had already been delivered.
    III. It is also claimed by the defendants that they did not by way of express or implied assent receive the delivery, or agree to the conditions on which the return was made of the blankets already delivered. The defendants, by their demurrer, admit, as the complaint avers, that when they “ announced their intention ” to make such return, the plaintiffs informed them that if they did so, it would be on the express condition that they might sell the blankets on their account, &c. Thus notified they made the return. This was a submission to our terms. The defendants say that the plaintiffs should have refused to take hack the goods and tendered performance. We say that, (a.) If, as stated in the complaint, the pretexts of the defendants for returning the goods were false, they had no right whatever to make the return. If they insisted on sending them back in such a case, after due notification of the only terms on which the plaintiffs would receive them, they are liable. They might have returned the goods absolutely, or refused our conditions.
    (&.) If the conditions did not bind them, then the goods-were returned without any right, and we can so recover damages—to what amount is of no importance on this demurrer. (See Orguerre v. Luling, 1 Hilt. 383.)
    The defendants’ counsel referred to Coon v. Reed, (1 Hilt. 511,) in which case the buyer of a horse, warranted sound, refused to pay, and offered to return the animal. The seller refused to receive him. Then the buyer put him into a stable from which the seller afterwards took him. This was held to be a rescisión of the contract. But suppose in that case when the offer was made to return the horse, the seller had said to him “I will receive him only on the express condition that I do so to sell him on your account, and hold you responsible for the difference between the agreed price and the amount obtained on the second sale,” and the buyer had therefore placed the halter in the seller’s hand, can it be pretended .that this would have been a pure and simple' rescisión of the contract ?
    IY. It is contended that even if under the second arrangement the plaintiffs might sell the blankets for account of the defendants, yet this should have been done on more specific notice, and at auction sale, or “ in the usual and customary manner,” the learned counsel adding, “ whatever that may have been, and for the best price that could have been obtained therefor.” We rely on the case of Oroolcs v. Moore, (1 Sand/. 297,) as well as he. But. no case holds that the parties may not stipulate as to how one may sell for another. The complaint alleges that the blankets were returned and received on the express condition that the plaintiffs might sell all of them at market prices, and to the government of the U. S. Under this there could be but one purchaser. It is also averred that thereafter the plaintiffs informed the defendants of the “ terms ” on which they proposed to sell, and that they sold for the best price they could obtain. That fully satisfied any and every requirement which any rule of law, trade, morality, or usage could exact.
    Y. The defendants say that they are not informed by the complaint for what prices the blankets were sold, nor the amount of expenses, &c. They already know these facts from the account rendered- as averred in the complaint. If they really need further information, we have already seen how they may obtain it under the Code.
    YI. The defendants claim that no breach on their part is averred. The complaint alleges that under the agreement made with them there was due to the plaintiffs after selling the blankets and deducting charges $8659.46, which account was correct, and that such amount is due and unpaid. The value of government securities has nothing to do with the case. Those securities were to be taken in payment for the blankets if the contract of sale had been performed on both sides. But when the defendants resolved to return, and the plaintiffs agreed to receive the blankets on an express condition, the plaintiffs were to hold them responsible for any loss or expense, not as measured by government securities, but in dollars and cents. No demand, therefore, was necessary.
   Robertson, Ch. J.

The breach of the two contracts- set out in the first three successive numbered paragraphs contained in the complaint, does not constitute the cause of action in this case, but merely forms the consideration for the third contract assumed to be entered into by means of acts and declarations of the parties set out in the fourth and fifth paragraphs. It, in substance, is, that in consideration that the plaintiffs would receive back from the defendants merchandize delivered by-them to the latter under the first of such contracts, and would sell to the government of the United States the same and other merchandize, to be delivered under such prior contract at the then market prices, they, the defendants, agreed to pay to the plaintiffs the difference between the sum so to he paid by the United States on such sale thereof to them, and the price agreed by the defendants to be paid therefor by such prior contract of sale. The complaint claims that such contract arose by the return to the plaintiffs, by the defendants, of the merchandize so originally delivered to them by the former under such prior contract, after a threat by the latter so to return them upon certain pretexts averred to be unfounded, and a notification by the plaintiffs, to them, that if they did so, they, the plaintiffs, would sell all of such merchandize in the manner before mentioned, and hold the defendants responsible for the before mentioned difference in the price. The main, if not the sole, question arising on the demurrer interposed in this case, therefore, evidently is, whether such a contract could be created by such acts and declarations; since it is evident that the plaintiffs would not be entitled, under either of the first two contracts set out in the complaint, to sell such merchandize in that mode to the government, and hold the defendants responsible for the loss, without a tender of the whole of it, and a demand of the purchase money.

The first contract set out in the complaint was one by the plaintiffs to sell to the defendants a certain quantity of merchandize, at a certain price, payable in securities of the government of the United States, such merchandize to correspond with certain samples. The second of such contracts was, that in consideration that the plaintiffs would undertake that the part of such merchandize already delivered, and the residue to be delivered under such first contract, should be, or was, of a quality to pass inspection by the United States 'government, the latter agreed to release the plaintiffs from their warranty as to the correspondence of such goods with the sample, and to accept the same as a compliance with such first contract. The recital of the two first contracts was, therefore, mere matter of inducement for setting out the alleged third one, and any want of definiteness in their details could be cured on motion, so as to fix their identity, and was not a subject of demurrer. “ Securities issued by the government of the United States,” is also a sufficiently certain allegation, on demurrer, whatever it may be, on motion to make more definite and certain.

But I am at a loss to perceive how, in regard to the main question already presented, a contract could arise between the parties by the proceedings stated in the complaint. The defendants threatened to send back the goods received by them, as not being bound to retain them under their second contract; under what pretext is immaterial, unless the plaintiffs were now seeking to hold them under such second contract. The plaintiffs, instead of refusing to receive them, and claiming to hold the defendants liable under such second contract, merely notified them that they would only receive them upon the terms mentioned in the complaint. There is no allegation therein, that the defendants, in any way, acceded to such terms, or that they originally proposed any thing like them. . Without such an assent, it must be presumed that the defendants sent back such goods under their original threat, and not as an acceptance of such a proposition. If the defendants were, by the original contract, entitled to return unconditionally goods delivered to them, as not being a compliance with its terms, they could not be compelled by the plaintiffs to relinquish such right and enter into a new contract by the receipt by the latter of the goods so returned, upon terms declared by them to be the condition of such receipt, unless they were also assented to by the defendants as the condition of their delivery.

It was a matter of no consequence whether the pretext on which the threat to return the goods were based, was well or ill founded, so long as such return was made in pursuance thereof, and not in consequence of any actual assent, express or implied, by the defendants to the terms proposed by the plaintiffs. The very fact of having made such threat, followed by such a notification of the plaintiffs, founded thereon, would take away from the subsequent return, by the defendants, of such goods, unaccompanied by any declaration, any implication of an assent thereby, to the proposed terms of the plaintiffs ; and would leave the parties entirely to whatever rights they had after such return, and acceptance under the prior contracts. Possibly such notification, by. the plaintiffs, may have taken away from the acceptance, by the plaintiffs, of the returned goods, the character of an acknowledgment that their delivery was not a compliance with the original contract, upon which I do not undertake now to pronounce, but I do not see that it was available in any other way; it certainly could not drive the defendants to the alternative of either renouncing whatever right they might have had of returning such goods under the prior contract, or accepting the terms of the plaintiffs, called in the complaint a condition of such return.

I think, therefore, the complaint was defective, in substance, and judgment should have been given for the defendant on the demurrer ; and, therefore, the present judgment should be reversed, with costs, with the usual privilege to the plaintiffs.

Barbour, J.

Assuming, even, that the allegation contained in the second item of the complaint constitutes a sufficient averment that the defendants undertook and agreed to take and pay for the blankets, and is not, merely, a statement of the legal effect of some supposed intention or agreement on their part, (which' is, at least, very doubtful,) it seems ■ quite clear that the whole of the goods were to be delivered to the defendants thirty days before the plaintiffs would have a right to demand payment. It was one sale of three thousand blankets ; and they were to be paid for,/6 to the amount of the entire purchasewithin thirty days after the one 66 delivery ” contemplated by the agreement. The delivery of the whole of the blankets, therefore, was, by the contract, a condition precedent to any performance on the part of the defendants ; and an averment of that fact is essential to the plaintiffs’ recovery, unless the original agreement was modified by some subsequent arrangement between the parties, inconsistent with the obligation of the plaintiffs to deliver all of the goods.

There is no pretense that the defendants ever refused to receive such of the blankets as had not yet come to their hands, nor that they, in terms, waived the delivery thereof. But the plaintiffs, claim that the return of a portion of the goods by the defendants, under the circumstances detailed in the fourth item of the complaint, operated as a waiver on their part of the delivery of those which had not been received by them.

It does not appear that any certain lot or parcel of blankets was exhibited to the defendants, or spoken of by the parties, at the time the original contract was made ; and, in the absence of such averment, it may well be assumed that the agreement on the part of the plaintiffs would have been satisfied by the delivery of any three thousand blankets that were of a quality and description corresponding to the sample. The fifteen hundred which were delivered were not of this quality; and an arrangement under which they were to be retained by the defendants notwithstanding that objection, was thereupon made by the parties. But no delivery of the remaining half was made or offered by the plaintiffs, nor were those blankets objected to by the defendants ; nor, even, do the undelivered blankets appear by the complaint to have been included in the agreement set forth in the third item. The plaintiffs, therefore, were bound, notwithstanding that agreement, to deliver, for the remaining half, such blankets as should correspond with the sample. It is enough, however, that fifteen hundred of the blankets are still undelivered; the plaintiffs cannot recover unless they have shown by the fourth paragraph of the complaint that the defendants, by the return of the goods under the circumstances therein stated, have waived the performance of the original contract on the part of the plaintiffs, and, for a sufficient consideration, have undertaken to pay to the latter the difference between the purchase price of the goods and their market value, with the expenses of the sale.

There seems to have been no consideration whatever for such supposed waiver and undertaking, inasmuch as there was no agreement that the defendants should not be required to receive the three thousand blankets, corresponding with the sample, or of such a quality as would pass government inspection, and pay for them. Neither does it appear, nor can it reasonably be implied from the facts set forth in the fourth paragraph of the complaint, that the defendants ever assented to the terms upon which the plaintiffs consented to take back the blankets which had been delivered. On the contrary, it is quite apparent that the defendants- returned those goods under certain pretexts ” wholly inconsistent with the theory of the plaintiffs in this regard, and not because they assented, by their silence or acts, to the proposition of the latter. The plaintiffs have, therefore, failed to show such a performance or waiver of their contracts as entitle them to a recovery ; and, for that reason, the demurrer should have been sustained.

The complaint is also insufficient, for the following reasons :

First. According to the terms, upon which the defendants returned the goods, as claimed by the plaintiffs, the blankets were to be sold by the latter to the U. S. government at the mai'ket prices. The complaint does not allege that they were in fact sold for their value in the market, but only for the best terms the plaintiffs could obtain therefor from the government. That is not enough. We cannot assume that the price paid by the government was the market value ; and the plaintiffs, clearly, had no authority to sell the goods for a less price than that.

Second. The allegations of the complaint in that respect do not show that the plaintiffs sustained any loss, or incurred any expense, by reason of the return of the goods and their sale to the government. The averment that an account was rendered by the plaintiffs showing that the defendants were indebted to them in a certain amount, is not sufficient. The facts should be stated directly, and not inferentially.

The order appealed from should be reversed, with costs, and an order entered directing a judgment for the defendants on demurrer, subject to the usual conditions.

McCunn, J. dissented.

Judgment reversed.


author: By the Court, Monell, J.

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    Ann Baxter, plaintiff and respondent, vs. The Second Avenue Railroad Company, defendants and appellants.
    1. In an action to recover damages for an injury to the person, occasioned by the negligent act of another, the plaintiff must be free from any fault which may have contributed to the injury.
    2. There are no degrees in negligence; for, whether it be great or small, if it can be seen that, in any measure, without it, the injury would not have happened, there can be no recovery.
    8, No general principle can be established as to the criteria or essence of negligence ; there being so many different elements which, of necessity, must enter into'it, and vary it. (JPer Moneel, J.)
    4. In an action against a railroad company, to recover for personal injuries sustained by the plaintiff, in being run over by one of the defendants’ cars, in the street, there is no error in a charge of a judge to the jury, on the trial, that if the plaintiff was guilty of “ a want of common ordinary care or prudence,” then she was guilty of negligence; and that if they found that the plaintiff exercised “ common ordinary care and prudence,” in going across the street, at the time, and under the circumstances which existed in the case, “ then she was free from fault.” •
    5. Unless the evidence of negligence on the part of the plaintiff, in such an action, be of such a nature as to require the reversal of a verdict if found against it, it would be improper to take the question from the jury.
    6. If there be time for a person to cross a railroad track before an approaching car thereon could arrive, he is not bound, in order to avoid the charge of negligence, to wait until the car has passed, because there might be danger of his slipping or falling.
    (Before Moncrief, Monell and McCunn, JJ.)
    Heard December 15, 1865;
    decided December 30, 1865.

      Appeal from a judgment, and from an order denying a motion for a new trial.
    The action was to recover for personal injuries, sustained by the plaintiff, in being run over by one of the defendants’ cars, in January, 1864. The plaintiff was attempting to cross the Second avenue, at 31st street. She said, in her testimony, that she started from the east side of the avenue, to cross upon the lower cross-walk, to the opposite side. The defendants’ four horse car was not then at the upper crossing or corner. Her foot caught in the easterly track, and in extricating it, she slipped and fell upon the westerly track, upon which the defendants’ car was approaching; she was knocked down by the horses, and the car passed over her. Upon her cross-examination, she testified, that at the time of the accident, she had a basket, containing some groceries, on her left arm. There was not a great deal of snow on the street, or crossing ; it was slippery. That when she began to cross, she looked and saw a four horse car coming up the hill very fast; not at a gallop, but very-quick for four horses. She felt perfectly sure she could cross with safety. It was an uphill grade, and they were coming up the hill. She said she discussed in her mind, before she attempted to cross, whether she could cross before the car reached her ; and she made up her mind it was safe to cross, and concluded that the horses were so far off she could safely do so. She further testified, that when she commenced crossing, the defendants’ car was half way between 31st and 32d streets.
    The action was tried by Mr. Justice Garvin, and a jury.
    The defendants moved to dismiss the complaint, on the ground that the accident was owing to the plaintiff’s imprudence and negligence. The motion was denied, and the defendants’ excepted.
    The justice charged the jury, that if the plaintiff was guilty of any negligence, or contributed in any degree toward the injuries she received, she could not recover. That the law was, that if she was guilty of “ a want of common ordinary care or prudencethen she was guilty of negligence; and he instructed the jury, that if they found that the plaintiff exercised
      “ common ordinary care and prudence in going across the street at the time, and under the circumstances which existed in the case,” then she was free from fault. The defendants excepted to so much of the charge as gave a definition of negligence. They requested the justice to charge the jury, “ that if there was danger of the plaintiff’s slipping, or falling, while crossing in front of the car, she ought not to have attempted to cross until after the car had passed.” The justice refused so to charge, and the defendants excepted.
    The jury gave the plaintiff a verdict for $3000.
    A motion was made for a new trial, on the judge’s minutes, which was denied, and judgment entered.
    The defendant appealed from the order, denying the motion for a new trial, and also from the judgment.

      John Slosson, for the appellants.

      Washington Murray, for the respondent.
   By the Court, Monell, J.

In an action to recover damages for an injury to the person, occasioned by the negligent act of another, the plaintiff must be free from any fault which may have contributed to the injury. I had occasion, in writing the opinion of the court in Williams v. O'Keefe, (9 Bosw. 536,) to state the result of all the cases on this subject. In one case only, do I find any attempt to define the nature or quality of negligence, (Wilds v. Hudson River R. R. Co., 24 N. Y. Yep. 430,) and in that case, a distinction, which some of the cases have made, between gross negligence and common care or prudence, is rejected, as inapplicable to actions for personal injuries. It is undoubtedly correct to say there are no degrees in negligence ; for whether it be great or small, if it can be seen that in any measure, without it, the injury would not have happened, there can be no recovery. We-are nowhere given the criteria or essence of negligence. Nor can any be given. There are so many different elements, which of necessity must enter into it, and vary it, that no general principle can be established. It is prudent for a man possessed of all his senses and faculties to do many things it would be highly dangerous and imprudent for a person deaf, or blind, or lame to perform. An adult may go in safety where an infant of tender years would be exposed to great peril. In all cases, therefore, whether a want of care is imputable to a person, must always depend upon facts which in each case essentially determine the question. Courts never decide what is or is not abstract negligence. They sometimes put a construction upon the evidence intended to establish it, and say, that the verdict of a jury is not or would not be supported by it. But they do nothing more.

In getting at some rule, general as far as may be, of what would be negligence or want of proper care, neither of the extremes can be adopted. One man, with a high degree of caution, will avoid the possibility of danger ; another, more reckless or confident will rush into any kind of peril. Hence it is that the medium of the two extremes will come nearer to, and conform closer with, common sense and justice. What would persons ordinarily do under the circumstances ? How. would most persons act P Not the most prudent, nor the least careful, but what amount of care would the majority of persons exercise ?

In the case before us, the exception to the charge was, in limiting the plaintiff’s negligence to “ a want of common, ordinary care or prudence.” What amount of care or prudence is required of a person in crossing a public street ? If more than ordinary care, then what standard shall we adopt ? We cannot require the highest degree of caution, nor can we admit of the lowest. Therefore the common or ordinary degree, embraces the middle and only safe standard.

In Munger v. Tonawanda R. R. Co., (4 N. Y. Rep. 349,) it is said, (y>. 358,) “the result might have been avoided by the exercise of ordinary care on the part of the defendants.” Again: “A person injured by an obstruction placed unlawfully on a highway, has been denied a right of action for damages, where it appeared that he had failed to use ordinary care.” The cases cited in the opinion in Wilds v. Hudson River R. R. Co., (supra,) all use the same or equivalent words. In Fox v. Town of Glastonbury, (29 Conn. R. 208,) the rule is said to be that the party injured must have acted with ordinary prudence ; and in Gahogan v. B. and L. R. R. Co., (1 Allen, Mass. R. 187,) it is affirmed that the party must be in the exercise of due care.

In Johnson v. Hudson River R. R. Co., (20 N. Y. Rep. 65,) the court say, (p. 76,) the party “must have conducted with ordinary care and prudence.”

The charge of the judge to the jury was, therefore, strictly in conformity with authority, and, it seems to me, also in conformity with common sense. Had he attempted to form any other standard of negligence he must have failed, or run into the error of requiring a greater or less degree of care and prudence than is observed by mankind in general.

There was no error therefore in the-charge.

The refusal to charge as requested, and the motion for a nonsuit, invite the consideration of other propositions.

. The motion for a nonsuit was on the ground that the accident was owing to.the plaintiff’s imprudence and negligence.

A party seeking redress for personal injuries, must satisfy the jury that there was no fault imputable to him ; and unless the evidence of negligence is of such a nature as to require the reversal of a verdict, if found against it, it would be improper to take the question from the jury. (Johnson v. Hudson River R. R. Co. Williams v. O'Keefe, supra. Wilds v. Hudson River R. R. Co., 29 N. Y. Rep. 315.)

The plaintiff was a woman of fifty-four years of age, healthy and in the use of all her limbs and senses. She had with her a grocer’s basket, which was not heavy. It was mid-day, and a clear day. There was a little snow and a great deal of ice on the ground. She had passed down on the east side of the avenue from 34th street to the lower side of 31st street, where she attempted to cross on the cross way. As she began to cross, she looked and saw a four horse car coming up the hill, (the grade being ascending ;) she felt perfectly sure she could cross with safety. The car was then above the upper side of 31st street, about half way the block between 31st and 32d streets. She looked long enough to make up her mind it was safe to cross, and concluded the horses were so far off she could safely do so. In crossing, her heel caught in the westerly rail of the easterly track. It took her whole strength to extricate her foot. In pulling her foot out, the iron sprang up, and pitched her over upon the westerly track, and it being slippery she fell. Before she could recover herself, the horses and car were upon her.

The only negligence that can be charged to the plaintiff is, in attempting to cross the avenue while the defendants’ horse car was ascending a grade, nearly two hundred feet away. The catching the foot in the rail, and subsequent falling, were accidents.

' There was ample time to cross ; the car was distant, and she had the free use of her limbs. In considering the matter, time was the important thing. She could not anticipate what befel her, before the car was upon her ; and she felt sure there was time sufficient for her to reach the opposite side in safety. And such, I think, would have been the reasoning and conclusion of any person. Had she not fallen on the track, she undoubtedly would have escaped.

Upon all the facts, I am clear that the plaintiff was justified in attempting to cross the street; and that the motion for a nonsuit was properly overruled. (Brown v. The N. Y. Central R. R. Co., 32 N. Y. Rep. 597.)

The request to charge is involved in the question I have been discussing. The judge was desired to charge the jury “ that if there was danger of the plaintiff’s slipping or falling, while crossing in front of the car, she ought not to have attempted to cross till after the car had passed.”

There is always more or less danger of slipping on ice, but the sure footed seldom fall. I do not, however, think that for any reason suggested in the request to charge, the plaintiff was bound to await the passage of the defendants’ car. It was snow ice, which at most is never smooth ; and under the facts in this case, no jury would be justified in a verdict against the plaintiff on any such ground.

The proposition of the appellants’ counsel, in its scope and meaning, comes to this : that a foot passenger has no right upon a public street, as against a railroad corporation. And I regret to say that such seems to be, practically, the belief of drivers of most public conveyances, and of many private vehicles.

There is often a reckless disregard of human limbs and life; and pedestrians are compelled, at the peril of broken bones or death itself, to keep out of the way. The right to travel upon a street or highway is common to all. They do not belong exclusively to the drivers of vehicles. Eoot passengers have the right to walk upon them; and, except for the greater difficulty of guiding and arresting the progress of vehicles, it is, as a matter of law, as much the duty of the vehicle to keep out of the way of the foot passenger, as it is for the latter to escape being run over by the former.

The use of the streets of cities and villages, and of highways, for railroads is allowed, only because it is considered .not to be a substantial interference with their free and unobstructed use as highways for passage. So long, therefore, as there is no interference with the public right of passage, railroads are lawful structures. But if operated upon the theory of exclusive right to their track, they become usurpers and wrongdoers.

I make these observations, that the practice of drivers, not of railroad cars only, but of omnibuses, carts, express wagons, &c. of disregarding the rights of foot passengers, may, if possible, be checked. In our over crowded city, it is of vital importance that the greatest caution and care should be observed by the drivers of all kinds of vehicles. It is to the drivers we must look for a remedy for this great and growing danger. The railroad companies and the omnibus proprietors cannot control their servants, and are not therefore morally responsible for their acts.

The request to charge was properly overruled. If there was time for the plaintiff to pass, I do not think she was bound to wait, even though there may have been danger of slipping or falling, until the car passed.

Not having discovered any error in the trial, I am in favor of affirming the judgment and order.

Moncrief, J. concurred. .

McCunn, J. dissented.

Judgment and order affirmed.


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    Samuel S. Phelps, respondent, vs. The Masterton, Smith & Sinclair Stone Dressing Company, impleaded &c. appellants. The Masterton, Smith & Sinclair Stone Dressing Company, defendants and appellants, vs. Zephaniah Platt, receiver of the Empire Stone Dressing Company, defendants and respondents.
    1. The assignee of the interest of a cestui que trust, under a transfer of all the property of a corporation to a trustee, in trust to sell the same and distribute the proceeds among certain cestuis que trust, including such assignor, is not precluded from recovering from such trustee or the vendee to whom he has sold the property so transferred, the share of such assignor of the proceeds of such property, because the latter has not paid a promissory note given by him to such corporation as part of the consideration for the transfer of such property.
    2. The receiver of such corporation to whom such note given by the cestui que trust on the transfer of their assets, has been passed, cannot recover upon such note, after he has sold the same at public auction to a bona fide purchaser.
    (Before Monell and Garvin, JJ.)
    Heard October 2, 1865;
    decided December 30, 1865.
    This action was brought by the plaintiff as assignee of Ulysses B. Brewster, to recover of the defendant Ward, as sole acting executor of Robert Smith, deceased, and of the defendants “ The Masterton, Smith & Sinclair Stone Dressing Company,” one eleventh of the proceeds of the sale by Smith to the latter, of the property of “ The Empire Stone Dressing. Company,” whereof Brewster (the plaintiff’s assignor) had been a stockholder, and owned one eleventh of the stock.
    In July, 1854, The Empire Stone Dressing Company transferred all its property to the testator, Robert Smith, for the nominal price of $110,000, paid by the notes of Brewster and other stockholders of such company, and on the same day Smith executed a declaration of trust, or instrument reciting the sale to him, which declared that he held the property, “ in trust to use, manage, sell and convey the same for the benefit ” of the several persons therein" named, including Ulysses Brewster, in the shares and proportions therein specified; and whereby he agreed that upon a sale of the property he would pay over to the persons named all moneys received, in the proportion specified. The share of Brewster in the property conveyed to Smith was one eleventh thereof, and the note given by him for such conveyance was for $10,000. In September following (1854) Smith sold and delivered the whole of such property to the defendants, “ The Masterton, Smith & Sinclair Stone Dressing Company,” and transferred the same by a deed of sale, for the sum of $110,000. Smith died in November, 1854, leaving a will whereby he appointed the defendant Ward executor thereof, and he was duly qualified as such. In September, 1856, Brewster assigned his claim to the plaintiff.
    The complaint alleged that on the sale to the defendants, the Masterton, Smith & Sinclair Stone Dressing Company, they agreed to pay the several persons entitled to the purchase money, (including Brewster,) as specified in the declaration of trust, and claimed to recover of the defendant Ward, as executor of Smith, and of the Masterton, Smith & Sinclair Stone Dressing Company, one eleventh of the money received on the sale by Smith to the company, being the sum of $10,000.
    The answer of the defendant Ward set out the instrument of sale by the Empire Stone Dressing Company to Smith, which recited that the consideration of $110,000 for said purchase was paid or secured to be paid by the firm of “ Master-ton, Smith & Company,” and Messrs. Bliss, Abernethy, I. A. and J. J. Phelps, Hotchkiss, Chittendon and Ulysses B. Brewster, parties thereto of the second part. The answer then alleged that it was part of the consideration of said contract, that such parties thereto of the second part should give their several promissory notes in amounts agreed on, and should receive therefor, stock of a manufacturing company which it was proposed to organize, and to which it was agreed all the assets and property conveyed to Smith in trust should be transferred. That said several parties gave their notes in proportion to their respective shares, (the note of Breioster being for $10,000,) which notes were delivered to a third person (Charles F. Sanford) to carry out the agreement. That after-wards Brewster declined to pay his note or to receive the stock of the new company, and that it was thereupon agreed, with Brewster, that his note should not be used, and that he should no longer be regarded as a party to, or interested in the property sold to Smith. The answer further alleged that subsequently, Sanford handed all the notes so given, including that of Brewster, to the receiver of the Empire Stone Dressing Company, (Lucius B. Hanks,) who afterwards transferred them to the defendant Platt, who succeeded him as receiver. That such receiver sold the note of Brewster for $1000, to one-Charles B. Loomis, for the benefit of Brewster, who was in fact the purchaser, through him.
    The answer denied any agreement on the part of the defendants, the Masterton, Smith & Sinclair Stone Dressing Company, to pay Brewster any sum of money.
    The defendants, “ The Masterton, Smith & Sinclair Stone Dressing Company,” answered separately, setting forth, substantially, the same facts as are stated iü the answer of Ward.
    The defendant Platt, (brought in as such after the suit was commenced, as a supposed necessary party,) also answered the complaint, alleging his appointment as receiver of the Empire Stone Dressing Company ' his taking possession of the Brewster note, and its sale at public auction, to Loomis, for nine hundred and ninety ($990) dollars. His answer admitted the sale to Smith, upon the trusts stated in the complaint, and the sale hy Smith to the Masterton, Smith & Sinclair Stone Dressing Company, and then submitted “ his rights and interests arising out of the facts in the complaint, and herein set forth, to the judgment of the court.”

    The action was tried before Mr. Justice White, without a jury, who found, among others, the following facts :
    That “ The Masterton, Smith & Sinclair Stone Dressing Company” paid to Smith the sum of one hundred thousand dollars on account of the contract price for said property sold to them by said Smith, who gave' to them the following receipt: “ Deceived from James Sinclair, treasurer of the M. S. & S. Stone Dressing Company, one hundred thousand dollars in cash, on account of the purchase money of property this day conveyed by me to said company, the balance of said purchase money, viz: the sum of $10,000, to be hereafter arranged in the obligation of said company, as may be agreed."
    That said company has not paid the said sum of $10,000.
    That the $100,000 received by Smith was distributed and paid among the several persons named in the declaration of trust by him, excepting Brewster.

    That no part of the $110,000, for which Smith sold the property, was paid to Brewster.

    That the notes of the several parties, given to Sanford, were intended as memorandum notes, to be exchanged for such other obligations as might be agreed on between the parties.
    That Brewster never assented to any proposition or arrangement to form the Masterton, Smith & Sinclair Stone Dressing Company, and to take the stock thereof to the extent of his interest in the property conveyed to Smith, and at all times refused to do so.
    That it was agreed between all the parties, except Brewster, that the Masterton, Smith & Sinclair Stone Dressing Company should be organized with a capital of $100,000, instead of $110,000 ; that the parties should subscribe for such stock in proportion to their interest in the property conveyed. to Smith ; that such company should buy the property for $110,000, and should pay in cash $100,000, and assume a liability for the remaining $10,000, to be applied in some form or other in lieu of, and to the extinction of, the note given by Brewster, and to the satisfaction of the debts of the Empire Stone Dressing Company ; that Brewster fully assented to the sale by Smith to the company on the terms specified, and thereupon insisted that he was thenceforward entirely discharged from all liability on his note.
    That the Masterton, Smith & Sinclair Stone Dressing Company has at all times refused to pay the $10,000, to Brewster or to thé Empire Stone Dressing Company, in discharge of Brewster’s note ; that Brewster has never paid his note, and has always denied its validity. That Loomis purchased the note for the benefit of Brewster, who got possession of it, and that it is not an obligation or demand outstanding against him. That beyond the $990, bid for the note, Brewster never paid any thing towards the purchase of the property of the Empire Stone Dressing Company. And that the whole sum agreed to be paid for the property was required to satisfy the debts of the Empire company.
    From these facts the learned justice deduced the following conclusions of law : That by the agreement and arrangement between the parties, the note of Brewster should have been returned to him. That the Masterton, Smith & Sinclair Stone Dressing Company were bound to pay the full sum of $110,000 as the consideration for the property conveyed by Smith, so that the same might be applied, as far as necessary, to the payment of the debts of the Empire Stone Dressing Company, in order that if any surplus was left, it might be returned to the parties of the second part to the agreement, excepting Brewster.

    That Brewster has no claim against any of the parties to the action, except to be reimbursed the $990, out of the $10,000 of unpaid purchase money due from the Masterton, Smith & Sinclair Stone Dressing Company. .
    That the plaintiff and the defendant Platt are respectively entitled to judgment, adjudging that “ The Masterton, Smith & Sinclair Stone Dressing Company pay the said sum of $10,000, with interest; that is to say, that, they pay to the plaintiff the sum of $990, and interest, and to the defendant Platt the residue of said $10,000, and interest.”
    That the defendant Ward was entitled to judgment dismissing the complaint against him.
    Judgment was entered in conformity with the findings.
    The defendants, the Masterton, Smith & Sinclair Stone Dressing Company, excepted to all the conclusions of law, and appealed from so much of the judgment as directed the payment of any money by them, to the general term.

      H. A. Gram, for the defendants the Masterton, Smith & Sinclair Stone Dressing Company, appellants.

      L. B. Woodruff, for the defendant Platt, respondent.

      W. A. Butler, for the plaintiff, Phelps, respondent.
   By the Court, Monell, J.

This case presents the unusual phase of two judgments in one action ; one in favor of the plaintiff against one of the defendants, and the other in favor of a defendant against the same co-defendant. The appeal is from both judgments.

I will first consider the appeal from the plaintiff’s judgment. On the sale by Smith, the trustee, to “ The Masterton, Smith & Sinclair Stone Dressing Company,” the latter paid to Smith one hundred thousand dollars of the purchase money, retaining in their hands ten thousand dollars, which, the justice has found, was retained to be .applied, in some form, in lieu of, and to the extinction of, Brewster’s note' and to the satisfaction of the debts of the Empire Stone Dressing Company.

The transaction, as I understand it, was this : Brewster and others, perhaps, (though it does not so appear,) shareholders in the Empire Stone Dressing Company, not only agreed to the sale to Smith, of the assets of that company, for a consideration of one hundred and ten thousand dollars, but to pay the purchase money by their notes. The sale was in effect to themselves; their several notes, amounting, in the aggregate, to such sum, being given and received in payment thereof. The notes so taken in payment of such purchase money subsequently came into the hands of the receiver of the company. Smith, the trustee, agreed, upon the sale of the property by him, to pay the proceeds to the several persons entitled, under the declaration of trust by him, in proportion to their interests. He sold the property with the written consent of all the persons interested, except Brewster, and they afterwards formed the Masterton, Smith & Sinclair Stone Dressing Company, in which" each took stock equal to the amount of his interest in the property sold and its proceeds. Brewster having refused to become interested in the new company, demanded a return of his note, which was refused. The note remained in the hands of the receiver, who made some attempts to collect it, until he sold it at public auction, in April, 1857, after this action was commenced.

Upon this state of facts, it seems to me that the rights of the several parties to this action were otherwise than as found by the learned justice who tried the cause.

Brewster’s note was given in payment for his proportionate liability for the purchase money of the property sold to Smith ; and although called a memorandum note, was founded, as it appears to me, upon a good and valid consideration. It was undoubtedly believed that all the parties would become shareholders in the new company to be formed,' and that their respective interest therein should be the same as stated in the declaration of trust, and as represented by their several promissory (memorandum) notes ; and it was also believed, that all the notes would be paid. Brewster, at no time, agreed to go into the new company, but steadily refused so to do, and demanded the surrender of his note. He consented to a sale of the property at the sum named, but he in no wise ever relinquished his claim on Smith, the trustee, to be paid his proportion of the purchase money; nor has he ever relinquished any claim he may have had, upon the purchasers from Smith.

It will not be doubted, that if Brewster had paid his note to the receiver, his right of action against the defendants, the Masterson, Smith & Sinclair Stone Dressing Company, would have been complete. The ten thousand dollars retained by that company, would then have belonged to him. In what respect is the case changed by his non-payment of his note ?

During all the time the receiver held the noté, Brewster remained liable upon it, and I have not been able to discover any reason why its payment could not have been enforced. The consideration was sufficient, being the conveyance of the property to Smith; and the Empire Stone Dressing Company had parted with value, and was, therefore, entitled to recover upon it. Hence, whether Brewster paid his note or not, his claim on Smith, as trustee, for his share of the purchase money on the sale by him, was unchanged ; neither such trustee, nor the Masterton, Smith & Sinclair Stone Dressing Company, could object to payment on any such ground.

The conclusion of the learned justice on this branch of the case was, that pursuant to the arrangement and agreement of the parties, Brewster’s note should have been returned to him. But it was not returned to him; nor can I find any evidence that the Empire Stone Dressing Company, or the receiver of that company, ever consented that it should be returned. They continued to hold it, and made an attempt to collect it; but did nothing to relieve or discharge Brewster. They could have done so, and doubtless Brewster would have been satisfied with the arrangement, and would have relinquished all claim upon Smith, or upon the Masterton, Smith & Sinclair Stone Dressing Company. But instead of returning the note, Mr. Sanford, who acted as the agent of the company, refused to return it, and insisted upon Brewster’s liability upon it.

In this situation, Brewster, with a right to ten thousand dollars in the hands of the Masterton, Smith & Sinclair Stone Dressing Company, in some form,, with his note held by the receiver, he being liable upon it, assigned his claim to the plaintiff. After which, and after the commencement of this action, the receiver sold such note at public auction.

After the learned justice had arrived at the conclusion, that Brewster’s note should have been returned to him, it was clearly inconsistent to hold, that Brewster had no claim against any of the parties, “ except so far as he might be liable or compelled to pay” something upon his note. He was liable, if at all, for the whole amount, and the receiver had no right to return it without payment, and his claim arose on the terms of the trust, not on his liability for his note.

The theory of the decision was, that Brewster, by his refusal to join the new company, had ceased to be liable upon his note, and by ceasing to be liable, lost all share of the proceeds of the sale. I think that cannot be so, and that the receiver was right in not thinking so. He attempted to collect it, and finally sold it, assuming to give a good title to the purchaser.

I have been unable also to discover the principle upon which the recovery, by the plaintiff, was confined to the amount bid for the note. The plaintiff, as Brewster’s assignee, it seems to me, was entitled to receive the whole of his interest in the property conveyed to Smith, and its proceeds, or nothing. But as the plaintiff has not appealed, he is presumed to be satisfied with his judgment, and it is unnecessary to say any thing further on that branch of the case, except that I am of opinion that the judgment in favor of the plaintiff should be affirmed.

Smith was a mere trustee, having no interest in the property. While in the execution of the trust, he could have collected from the defendents the Masterton, Smith and Sinclair Stone Dressing Company, the residue of the purchase money, and applied it in discharge of the claim of Brewster. He died without doing so. Upon his death, the trust did not devolve upon his representatives, (1 B. 8. 731, § 68,) and his executors could not be made liable for the amount remaining unpaid of the purchase money. How far Smith, in his lifetime, or his executors, since his death, might have been liable for Brewster’s portion of the one hundred thousand dollars actually received, is a question out of the case. The dismissal of the complaint as to Smith’s executor was correct.

If the views expressed with reference to the plaintiff’s judgment are correct, it follows, necessarily, that the receiver’s judgment cannot be sustained.

In support of the latter judgment it is said, that inasmuch as the unpaid purchase money was for the same property for which Brewster had given his note to Sanford, there is an equity in favor of the Empire Stone Dressing Company, the original proprietor of the property, to be indemnified for loss on the Brewster note.

If the company had continued .the holder of the Brewster note, it may be, that in some form appropriate action, they might have reached the debt due to Brewster from- the Masterton, Smith & Sinclair Stone Dressing Company, and applied it towards or in satisfaction of Brewster’s debt to them. The difficulty, however, is, that they did not continue to held the note ; they parted with the ownership and possession, at a public sale, and- thereby extinguished the whole of Brewster’s indebtedness to the company. They took the note from Brewster as payment and they must be held to be satisfied with what they got.

The equity of the Empire Stone Dressing Company must arise, if at all, from some liability or indebtedness of Brewster to them ; and not upon any right in, or claim to, the avails of the proprerty conveyed by Smith to the defendants, the Masterton, Smith & Sinclair Stone Dressing Company. Having a legal claim against Brewster, the law might subrogate them to all the rights of Brewster, although the equitable power of the court might have to be invoked to do it.

The several conveyances were absolute, and a complete title to the property passed. The Empire Stone Dressing Company retained no lien upon it, legal or equitable. They were content to receive in payment, the notes of the purchasers, and to these notes alone can they look for indemnity.

The company had the power and right to retain their demand against Brewster; but they saw fit to subject it—a chose in action—to a public sale to the highest bidder. And that was done after the plaintiff had acquired all the rights .of Brewster to the unpaid purchase money.

Having no claim against Brewster, and no claim or lien upon the property, I cannot see how there can be an equity in favor of the Empire Stone Dressing Company. Equities must have something to stand upon. They cannot be propped up or supported without a foundation. Here the only foundation has been removed, and the supposed equities must fall.

There seems to have been floating about the case, some idea that because Brewster desired to get up his note, and refused to embark in the new enterprise, and had surrendered all interest in the matter, therefore, the Empire Stone Dressing Company could step into his place and acquire all his rights. No such conclusion can be deduced from the facts of the case ; they are hostile to any such right. There is nothing in the opinion delivered in the general term of this court, when this case was up upon a former appeal, which conflicts with the views here expressed. It was conceded that while Brewster’s note was outstanding he was entitled to his share of the consideration of the new purchase, and could claim the amount from the Masterton, Smith & Sinclair Stone Dressing Company as so much property of his own in their hands for his use.”

The view I have taken of the case, renders it unnecessary for us to examine the other exceptions ; or to determine whether for other reasons the receiver's judgment can be sustained. It is enough, that in our opinion the learned justice erred in his conclusions of law, and that the judgment in favor of the receiver must, therefore, be reversed; and there must be a new trial.

The judgment in favor of the plaintiff must stand ; as to that, there cannot be a new trial.

The judgment against the defendants, the Masterton, Smith & Sinclair Stone Dressing. Company, must be reversed, and as to those defendants and their co-defendant Platt, the receiver of the Empire Stone Dressing Company, there must be a new trial, the costs of the appeal to abide the event.