text:
    Henry R. De Milt, Respondent, v. Sarah Hill and Francis C. Hill, Appellants.

      Representations of a grantor — when they entitle a grantee to equitable relief — when a court of equity will refuse relief.

    Representations of a grantor which will entitle a grantee to relief in equity must he of such a character that the purchaser has no' means of discovering their falsity. Knowledge will be imputed to one who is able to inquire into a known thing. A court of equity will refuse its aid to those who, by their own negligence, have incurred a loss or suffered inconvenience, and if a xiarty does not avail himself of the knowledge within his reach he will never be entitled to the aid of equity.
    In an action brought for the foreclosure of a mortgage, a portion of the premises described in which was upon a mill site, to secure the purchase price of which the mortgage was given, the defense was interposed that the representative of the plaintiff, who negotiated the sale, misrepresented the capacity of the water power hy stating that it was 100 horse power, when, in fact, there was less tbgn that amount, and that in consequence thereof the defendant was obliged to abandon the enterprise contemplated by him at the time of the purchase of the property.
    It appeared that the deed from the plaintiff contained no covenant in respect to the water power or as to the character and condition of the mill. There was no allegation in the answer of fraud, and there was no prooí or claim of fraud upon the trial. It appeared that an option of four months had been given to the purchaser, during which period he had ample time and opportunity to examine the property and ascertain its capacity and condition. The purchaser was also notified during the pendency of the option of doubts whether the pond would furnish 100 horse power.

      Held, that ordinary care would have disclosed the defect of which he complained; that the purchaser had the same means of obtaining correct information as the seller, and that the court in such a case could afford no relief.
    Appeal by tlie defendants, Sarah Hill and another, from a judgment of foreclosure and sale of the County Court of Suffolk county in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 1st day of March, 1894, upon the decision of the court rendered after a trial at a Special Term of the Suffolk County Court.

      Thomas Young, for the appellants.

      Timothy M. Griffivig, for the respondent.
   Dykman, J.:

This action was brought for the foreclosure of a mortgage. The premises first described in the complaint were conveyed by the plaintiff to the defendant Sarah Hill, and this mortgage of even date with the conveyance was given to secure the full amount of the purchase money, but it included other premises 'which are secondly described in the complaint which were not so conveyed by the plaintiff. The property so conveyed by the plaintiff was a mill site, and was purchased to be utilized as a water power in connection with an electric light company which was to be thereafter organized. The defense to the action is that the representative of the plaintiff who negotiated the sale misrepresented the capacity of the water power by stating that it was 100 horse power, when, in fact, there was less than that amount, and that in consequence thereof tlie defendant, Charles Hill, was obliged to abandon the proposed enterprise. The property was sold by the plaintiff to Francis C. Hill under a four months’ option, which was dated and commenced to run on the 19th day of October, 1891.

The deed from the plaintiff contains no covenants in respect to the water power, or as to the character or condition of the mill property, and there is no allegation of fraud in the answer, and there was no proof or claim of fraud upon the trial.

The action was tried in the County Court of Suffolk county, and the usual decree of foreclosure and sale was ordered and entered, and from that judgment the defendants have appealed.

Assuming that the representations respecting the water power were made according to the testimony of the defendant Francis C. Hill, it is to be remarked that the matter was not peculiarly within the knowdedge of the person who made them, and it does not appear that any artifice was employed to conceal the condition of the property or to prevent an inspection and examination of the mill pond to ascertain all the facts. On the contrary, the fact that an option of four months was given to the purchaser, during which period he had ample time and opportunity to examine tlie property and ascertain its precise capacity and condition, is an evidence of the absence of an intention to smother inquiry or prevent the acquisition of knowledge respecting the property. Moreover, the purchaser was notified during the pendency of the option of doubts whether the pond would furnish 100 horse power. He was, therefore, put upon his inquiry and closed the purchase thereafter. We are, therefore, forced to the conclusion that ordinary care would have disclosed tlie defect of which the defendants now complain. Such examination was not difficult; and the deficiency of which complaint is now made was open and easily ascertained by the jiurchaser and by the seller. lie had the same means of obtaining correct information as the plaintiff, and the law is now settled that in such case the court can afford no relief. (Long v. Warren, 68 N. Y. 431; Starr v. Bennett, 5 Hill, 303; Taylor v. Fleet, 4 Barb. 95.)

This last case reversed and overruled the decision in the same case reported in 1 Barbour, 471, upon which the defendants seem to place much reliance. The rules of law are well settled in opposition to the contention of the defendants.

Representations of a grantor which will entitle a grantee to relief in equity must be of such a character that the purchaser has no means of discovering their falsity. In fact, it has corue to be a legal maxim that knowledge will be imputed to ,him who is able to inquire into a known thing. A court of equity will refuse its aid to those who, by their own negligence, have incurred the loss or suffered inconvenience. If a party does not avail himself of the knowledge within his reach, he will never be entitled to the aid of equity. (Kingston Bank v. Eltinge, 40 N. Y. 391; Tallman v. Green, 3 Sandf. 437; Canaday v. Stiger, 55 N. Y. 455.)

The foregoing rules seem sometimes severe in a given case, and their application may be so here, but if legal rales were varied in their application to cases of hardship and severity, the law would soon be in a state of chaos. General rules must receive general application by the court. So far as we can see, after a full examination the court can afford no relief, and the judgment must be affirmed with costs.

Brown, P. J., and Pratt, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Dykman, J.:

license: Public Domain

text:
    Charles W. Reeve, Respondent, v. Jeremiah Gallivan, Appellant.

      Contract — measure of da/mages for its breach — goods purchased for future delivery..

    In an action brought to recover the damages resulting from a breach of contract it appeared that the plaintiff entered into a contract with the defendant whereby the defendant sold to the plaintiff 2,000 casks of cider vinegar, which were to' be delivered in carload lots, as the plaintiff might order, between October IS, 1891, and October 15, 1893, which contract defendant wholly failed to perform, and that the plaintiff was compelled to purchase and did purchase that amount of vinegar from other parties during the period mentioned in the contract, at prices exceeding the sum for which defendant agreed to sell the same. The last purchase of the plaintiff was 1,805 barrels on October 10, 1892, to be-delivered thereafter.

      Held, that the purchase was within the time limit of the contract, although the contract expired October 15, 1892, and this purchase was for future delivery;
    That the measure of damages was the difference between the contract price and the market value on October 10, 1892.

      Appeal by tbe defendant Jeremiah Gallivan from a judgment of ±lie Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of January, 1895, upon the report of a referee.

      Edward A. Horton and I. Newton Williams, for the appellant.

      Alfred E. Mudge, for the respondent.
   Dykman, J.:

This is an appeal by the defendant from a judgment entered on the report of a referee in favor of the plaintiff. ■

On the 10th day of September, 1891, the defeádant in this action, under the name of Gallivan & Co., signed a memorandum of agreement in writing, by which he sold to the plaintiff 2,000 casks of pure cider vinegar, which should fully meet all the requirements of the New York State Vinegar Law in every possible respect, at five and one-half cents a gallon free on board the cars at the defendant’s mill.

The deliveries were to be made in carload lots as the- plaintiff might order between October 15, 1891, and October 15, 1892. The plaintiff was to furnish the empty casks free on board the cars ■at the same place. The deliveries of each month were to be paid for on the tenth day of each succeeding month.

The plaintiff alleges a breach of that contract by the defendant b>y reason of which the plaintiff was compelled to purchase and did purchase during the period mentioned in the memorandum that quantity of vinegar from other pai’ties at prices exceeding the sum for which the defendant agreed to sell the same to the damage of the plaintiff of $1,866.57. There was a second cause of action ¡stated in the complaint for ninety-four barrels at one dollar each and twenty-six dollars and twenty-three cents coojxerage charges incurred by the plaintiff for the defendant’s account. The answer admits the contract, denies plaintiff’s performance of it, and the defendant’s breach of it, and denies the plaintiff’s allegations as to damages. It admits the receipt of ninety barrels and sets up a counterclaim of eighty-two dollars and fifty-eight cents for cider sold to the plaintiff by the defendant in August, 1891. It then sets up as an affirmative defense and. excuse for non-performance, that the contract sued on is not tbe entire contract and that a part of it was oral to furnish cider as well as vinegar.

It alleges a sale of cider on which there was a balance due the defendant of eighty-two dollars and fifty-eight cents. It then sets up some other matters not very material to be mentioned here.

After finding that the contract was made as stated in the complaint, the referee found as facts that the defendant failed and refused to deliver the vinegar or any part thereof. That the plaintiff was compelled to and did purchase at different times, during the period which the defendant undertook to deliver the vinegar, 2,000 barrels containing 95,056 gallons of vinegar. That the aggregate value of the vinegar so purchased by the plaintiff was $7,014.48,. and the aggregate amount purchased of the defendant at five and one-half cents a gallon would have cost $5,228.08, and the interest upon the difference between the market value and the contract price calculated from and the different months during the year when such vinegar was to be delivered was $224 88. That the defendant was indebted to the plaintiff for cooperage upon barrels and for ninety-four barrels, $96.85, less $68.58, leaving the sum of $27.27 due upon that account from the defendant to the plaintiff.

As a conclusion of law the referee found that the plaintiff was entitled to judgment against the defendant for $2,038.55, with costs.

The appellant complains chiefly of the damages. He says the jast purchase of the plaintiff was 1,305 barrels, October 10, 1892, to-be delivered thereafter, and as his contract with the plaintiff expired October 15, 1892, this last purchase was for future deliveries.

But we cannot see how that fact can be invoked in aid of the defendant. The purchase was within the time limited by the contract, and the sum paid was the market value at that time, and that is within the rule of law. The true measure of damages was the difference between the contract price and the market value on October 10, 1892. (Brock v. Knower, 37 Hun, 609, and cases there cited.)

This case was tried and decided upon that theory, and no error was committed in relation to the damages. All the facts found by the referee are sustained by the evidence. Many of the purchases of vinegar by plaintiff were made in the vicinity of the defendant’s mill, and they all seem to have been fairly made at ruling prices, and under such circumstances the market price is ordinarily the measure of its value. (Parmenter v. Fitzpatrick, 135 N. Y. 190.) We detect no error in the record.

Judgment should be affirmed, with costs.

Brown, P. J., and Pratt, J., concurred.

Judgment affirmed, with costs.


text:
    Ellen E. Weed, Appellant, v. Boltus M. Brush, Respondent.

      Damages to real property — mew of the premises by the jury — its verdict not disturbed on appeal.

    Upon the trial of an action brought in the court of a justice of the peace to recover damages for injuries alleged to have been occasioned to real property of the plaintiff by the flow of refuse material from defendant’s soda water factory upon plaintiff’s land, at the request of both plaintiff and defendant the court permitted the jury to personally view the premises in question. The j ury rendered a verdict in favor of the plaintiff for seventy-live dollars damages.
    On appeal by the plaintiff from a judgment of the Special Term reversing the judgment of the Justice’s Court,

      field, that the plaintiff was clearly entitled to a verdict, her premises having been seriously injured, and that if the testimony of the witnesses did not fix the basis or lay a foundation for the verdict, that defect was supplied by the view which the jury had of the premises in question which constituted a sufficient basis for its verdict. In such a case an appellate tribunal will refuse to interfere with a verdict unless the amount is so excessive or insufficient as to be palpably unjust.
    Appeal by tbe plaintiff, Ellen E. Weed, from a judgment of the Supreme Court in favor of the defendant entered in the office of the clerk of the county of Rockland on the 31st day of December, 1894, upon the decision of the court rendered after a trial at the Orange Special Term, reversing a judgment rendered by a justice of the peace of the town of Clarkstown, Rockland county, N. Y., after a trial before said justice and a jury.

      Garrett Z. Snider, for the appellant.

      Arthur S. Tompkins, for the respondent.
   Dykman, J.:

Tliis action was commenced in a Court of a Justice of the Peace in Rockland county to recover damages for injuries alleged to have been occasioned to the real property of the plaintiff by the flow of refuse matter from the soda water factory of the defendant upon the plaintiffs land. On the trial before the justice of the peace, a judgment was rendered in favor of the plaintiff for the sum of seventy-five dollars damages. An appeal from that judgment was taken by the defendant to the County Court, and by reason of the disqualification of the county judge, the appeal was removed to the Supreme Court, and by stipulation was argued before a justice of this court, who reversed the judgment of the justice, and a judgment was entered in favor of the defendant against the plaintiff for the sum of forty-one dollars and eighty-eight cents. From! that judgment the plaintiff has appealed to this court. The action was for the recovery of damages for trespass upon land, and. the plaintiff charged that the defendant caused materials used in the manufacture of sarsaparilla and mineral waters to escape upon her land, and also that he threw and placed around her land bottles and other refuse material, also large quantities of ground marble dust, vitriol and other chemical substances.

The complaint then charged that by means of such wrongs her land was overflowed and depreciated, and a well of water upon the premises was destroyed. The answer was in substance a general denial. There was evidence upon the trial to prove the fact stated iu the complaint. The water flowed from a cesspool and washed over the plaintiff’s yard, and the marble dust and refuse matter was washed over her premises, sometimes every day. Class was thrown upon her land and there was some proof of injury to the water in the well.

In any view there was sufficient proof to justify a verdict in' favor of the plaintiff. The defendant substantially admitted the overflow, but belittled the quantity and its effects upon the land and the water in the well. The record states that at the close of the trial, “ at the request of both plaintiff and defendant, and with the'ir consent in open court, the court permitted the jury under the charge of the constable and attendants to personally view the premises in question, with instruction not to converse with any person or among themselves, until the case had been submitted to them. The jury-returned in about fifteen minutes, and the counsel then summed up for the respective parties.”

The jury rendered a verdict in favor of the plaintiff against the defendant for seventy-five dollars damages. The question involved in this appeal has relation to the damages, and as we have already said, the plaintiff was entitled to a verdict for something, and, therefore, the sole question is one of amount. The obstacle in the way of the defendant is the stipulation to permit the jury to visit the premises. By that permission the jury could take ocular proof of the injury to the land. The eyes of the jurors and perhaps their taste of the water were permitted to testify, and their testimony is not submitted to us. "We think it must be assumed that there was sufficient evidence presented to the jury and obtained from a view of the premises to justify the verdict.

The case is like an appeal from a report óf commissioners appointed to appraise the damages for the appropriation of private property for public use. In such, cases appellate tribunals refuse to interfere with the report upon mere questions of amount unless the awards are so excessive or insufficient as to be palpably unjust. That rule is applicable here. We can easily see that the premises of the plaintiff must have been seriously injured, and if the testimony of the witnesses did not fix the basis, or lay a foundation for the verdict, that defect was supplied by the view of the jury. The consent to such a view must be construed into a permission for the jury to act upon what the jurors saw, and if they discovered sufficient evidence of injury to the premises of the plaintiff to satisfy them that she had sustained damages to the amount of seventy-five dollars, that constituted a sufficient basis for their verdict. The testimony respecting the injury to the crops by the marble dust which was washed from a cesspool was competent, and its reception presents no error.

The judgment from which the appeal is taken should be reversed, and the judgment rendered by the Court of the J ustiee of the Peace. should be affirmed, with costs to the plaintiff in all the courts.

Pratt, J., concurred, Brown, P. J., not sitting.

Judgment reversed and judgment of the Court of Justice of the Peace affirmed, with costs to plaintiff in all courts.


author: Brown, P. J.:

text:
    Mary B. Lewis, Appellant, v. Charles Angermiller, Respondents

      Surrender of a lease — when effected by operation of law.

    The surrender of a lease is effected by act or operation of law when the parties, ' without any express surrender, do some act so inconsistent with the subsisting relation of landlord and tenant as to imply that they have both agreed to consider the surrender as made.
    Facts considered from which such an implication arises.
    Appeal by tbe plaintiff, Mary B. Lewis, from a final order in summary proceedings made by tlie special county judge of Orange county, and entered 'in tlie office of tlie clerk of tlie county of Orange on tlie 17th day of April 1895, upon the decision of tbe court rendered after a trial at tbe Orange County Court, dismissing tbe petition of tbe plaintiff.

      George W. McElroy, for the appellant.

      John J. Beattie, for the respondent.
   Brown, P. J.:

This proceeding was instituted to remove the defendant from tbe possession of real estate for non-payment of rent. It appeared that on April 1, 1892, one Robert B.. Yan Yleck leased certain real estate in tbe town of Warwick to tbe defendant for tlie term of three years terminating on April 1, 1895. That tbe rent reserved was twenty-five per cent of tbe gross receipts of the business to be carried on upon tbe property, to be paid weekly. Provision was made in the lease for the employment of a cashier and the ascertainment and determination of tbe weekly receipts.

On August 29, 1892,. Yan Yleck -and defendant entered into a contract for tbe sale and purchase of tlie demised property. Tbe purchase price was $8,000, $500 of which was paid upon the execution of tbe contract; $2,000 of tlie balance was to be paid in cash, and for tbe remainder the defendant was to give his bond secured-by a mortgage upon the property, and upon receiving payment in such manner, Yan Yleck agreed to execute and deliver to the defendant a warranty deed for tlie property free from all incum-brances. About December 12, 1892, tlie defendant refused to take the title on account of an incumbrance on the property, but.lie testified upon the trial that he was ready to pay the purchase price when the title was perfected. '

On April 30, 1894, Yan Yleck conveyed the land to the plaintiff, and on May 8, 1894, assigned to her the lease. Thereafter the plaintiff demanded of the defendant that he comply with the terms of said lease and pay to her one-quarter of the weekly gross receipts, .and in November, 1894, no rent having been paid, she commenced .this jrroceeding.

Upon the trial the defendant and his wife testified without contradiction that, at the time of the execution of the contract of sale, it was agreed with Yan Yleck that after September first the defendant was not to pay rent under the lease. <

The special county judge correctly decided that the lease was surrendered and that- the relation of landlord and tenant did not exist between the parties. A surrender exists by act or operation of law when the parties, without any express surrender, do some act so inconsistent with the subsisting relation of landlord and tenant as to imply that they have both agreed to consider the surrender as made. Such an implication arises from the facts of this case. The relation of vendor and vendee was created, and there was a payment to the vendor of a part of the purchase money, and an agreement on his part to execute and deliver a warranty deed on receipt of the balance. And what is conclusive to my mind, as to the intent of the parties in relation to the lease, is that after the execution of the contract of sale there was no payment of rent by the defendant and no demand therefor by Yan Yleck. The omission to make any demand or request of the weekly payments of rent for a period of upwards of eighteen months shows conclusively that Yan Yleck recognized the possession of the defendant as that of a vendee and not as that of a tenant, and the conclusion is irresistible that the lease was regarded by both parties as surrendered.

The case of Burnett v. Scribner (16 Barb. 621) is quite like the case before us, and sustains the ruling of the county judge.

The order must be affirmed, with costs.

DykmaN and Pbatt, JJ., concurred.

Order affirmed, with costs.


text:
    Thomas E. Donlon, Respondent, v. Joseph English, Appellant.

      Carrying on business under a fictitious name — effect of notice thereof on the validity of a sale — written memorandum of sales — when inadmissible in evidence.

    Upon the trial of an action 'brought lo recover for merchandise sold and delivered, it appeared that the plaintiff and his brother William, during the period of the sales of the goods, had carried on business under the firm name of F. J. Mulligan & Oo. Mulligan was a brother-in-law of the plaintiff, but was not a member of the copartnership and was not interested therein. There was also testimony in the case showing that the defendant ltnew that Mulligan was not a member of the copartnership at the time of the purchases and that the plaintiff and his brother were the only persons interested therein. At the close of the evidence the court denied a motion made by the defendant to dismiss the complaint on the ground that the plaintiff was guilty of violating section 363 of the Penal Code, which forbids persons transacting any business to use the name, as a partner, of one not interested with them as a partner.
    Held, that the question whether the defendant dealt with the firm in reliance on the apparent fact that Mulligan was a member thereof was properly submitted to the jury.
    The plaintiff gave testimony tending to prove the sales to the defendant during the period in question; he testified that all the sales were made by himself or his brother, who, at the time of the trial, was dead, but that he was present at the sales made by his brother and knew of them to his own knowledge. He was then shown a bill which contained in detail a list of the sales and the amount of each. This bill was made up from the firm’s order book. The bill was then offered and received in evidence against defendant’s objection that it was incompetent and irrelevant.

      Held, that the court erred in the admission of this paper, and that, as it could not be said that such evidence might not have influenced the jury, a judgment in favor of the plaintiff entered upon its verdict should be reversed and a new trial granted.
    Appeal by the defendant, Joseph English, from a judgment of tbe County Court of Westchester county in favor of the plaintiff, entered in tbe office of tlie clerk of tbe county of Westchester on the 9th day of February, 1895, upon tbe verdict of a jury rendered after a trial at the Westchester County Court, and also from an order entered in the said clerk’s office on the 9th day of February, 1895, denying tbe defendant’s motion for a new trial made upon the minutes.

      Henry G. K. Heath, for the appellant.

      C. H. & J. A. Young, for the respondent.
   Brown, P. J.:

This action was brought to recover a balance alleged to be due to the plaintiff for coal sold to defendant between June 1,1892, and January 17, 1893.

The plaintiff and his brother "William, during the period aforesaid, carried on business under the firm name of P. J. Mulligan & Oo. Mulligan -was a brother-in-law of the plaintiff, but was not a member of the co-partnershij), and was not interested therein. At the close of the evidence the court denied a motion made by the defendant to dismiss the complaint on the ground that the plaintiff was guilty of violating the law of the State which forbids persons transacting any business to use the name as a partner of one not interested with them as a partner. (Penal Code, § 363.)

There was testimony in the case that, at the time the coal was purchased, the defendant knew that Mulligan was not a member of the partnership, and that the plaintiff and his brother were the only persons interested therein, and we are of the opinion that the court properly denied the motion to dismiss the complaint on the ground stated.

In Gay v. Seibold (97 N. Y. 472) it was said that the purpose of the statute was to protect persons giving credit to the fictitious firm on the faith of the fictitious designation, and that it was not needed to protect those who obtained credit from such a firm. That the statute was highly penal, and should be strictly construed. It was accordingly there held that the transaction between the parties to that action was not within the statute, it appearing that all parties knew who the real partners were.

Under the rule of the case cited, the question whether the defendant dealt with the firm in reliance on the' apparent fact that Mulligan ivas a member thereof was properly submitted to the jury.

The plaintiff gave testimony tending to prove the sales of coal to the defendant during the period aforesaid. He testified that all the sales were made by himself or liis brother, who, at the time of the trial, was dead, but that he was present at the sales made by his brother and knew of them of his own knowledge. He was then shown a bill which contained in detail a list of the sales and the amount of each, and enumerated thirty-four items thereon as the sales he had made. This bill was not an original memorandum, but was made up from tbe firm’s order book. The bill was then offered and received in evidence against tlie defendant’s objection that it was incompetent and irrelevant.

We think the court erred in the admission of this paper. The case in respect to this ruling cannot be distinguished in principle from National Ulster County Bank v. Madden (114 N. Y. 280). That was an action against the defendant as indorser upon eighteen checks. The defense was that the checks were altered in respect to the time of payment after they were indorsed, and the defendant was permitted to read to the jury a memorandum which he testified he had made at the time of the indorsement, showing the dates, amounts and time of payment of each check respectively. This memorandum was held to have been improperly admitted, and a judgment in the defendant’s favor was reversed. The opinion cites many cases, and it was said that “ the rule which renders such entries admissible rests upon the principle of necessity for the reception of secondary evidence and is not applicable where the witness has a distinct recollection of the essential facts to which they relate.”

In the case before us the witness had a distinct recollection of all the sales contained in the bill. The plaintiff contends the evidence was admissible as a detailed statement of the items testified to by the witness. It does not appear to have been so restricted by the court, but was admitted without limitation and would necessarily be regarded by the jury as corroborative of the witness’ testimony. In Howard v. McDonough (77 N. Y. 592), cited by the plaintiff, the court appears to have held that a list of items to which a witness would testify of his own knowledge, but which were so numerous that he could not carry them or the respective values in his mind, might be put in evidence as a detailed statement of the witness’ testimony. That case, however, has no application to the present controversy and lays down no other or different rule than Nat. Ulster County Bank v. Madden, and the cases there cited.

We are unable to say that this paper may not have influenced the verdict of the jury, and the judgment must be reversed and a new trial granted, with costs to abide the event.

Dykman and Pratt, JJ., concurred.

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


text:
    James F. Smith and Others, Respondents, v. The Sheltering Arms, Appellant, Impleaded with John Emberson, Respondent, and Others.

      Gontraator — failwe to perforin a substantial part of the work — a sub-contractor cannot recover under a ■mechanic's lien.

    Where there has heen a failure cn the part of a contractor to perform a substantial part of the work called for by his contract, and there is no provision in the contract for the completion thereof by the owner in the event of the failure of the contractor, and no understanding between them that the owner should proceed with the work, and no failure on the part of the owner to perform his obligation under the contract, a sub-contractor cannot recover under a mechanic’s lien the amount due to him from the contractor.
    Appeal by the defendant, The Sheltering Arms, from a judgment of the Supreme Court in favor of the plaintiffs and the defendant John Emberson, entered in the office of the clerk of the county of Westchester on the 17th day of November, 1894, upon the report of a referee.
    This action was brought to foreclose a mechanic’s lien filed by the plaintiffs as sub-contractors under two building contracts.

      Charles B. Meyer, for the appellant.

      C. S. Davison, for respondents Smith.

      Smith, Platt & Thompson, for respondent Emberson.
   Brown, P. J.:

The referee decided that the plaintiffs had a valid lien upon the premises of the appellant for the sum of $561.45, and that the defendant Emberson had a valid lien against the same premises for the sum of $252.38. On September 14, 1891, one Charles W. Banham entered into a contract with the appellant for the construction of a building, and on the same day entered into another contract with the “Children’s Fold” for the construction of a building on the appellant’s land with the appellant’s consent. The plaintiffs furnished material which was used in the buildings and filed their lien on March 23, 1893.

The referee found that at the time said lien was filed there was earned by Banham under said contract more than the sum of $561.45, and that there was due and unpaid to Mm for extra work upon said buddings the sum of $100. Tie further found that Banham did not substantially complete either contract. The work on the Sheltering Arms contract, however, proceeded so far that the sixth payment thereunder was earned, and a certificate therefor was given by the architect, and at the time of the filing of plaintiffs’ lien $640 thereof was unpaid. This sum was subsequently paid to one John W. Win-mill, and it is the plaintiffs’ claim that their lien attached to this balance and that the payment to Winmill. was unauthorized.

We agree with the plaintiffs’ counsel that Winmill’s relation to the transaction, so far at least as plaintiffs are concerned, was that of a sub-contractor, and that plaintiffs’ rights were in no way affected by the arrangement between Banham and Winmill by which the payments to be made under the contract were apportioned between them. But it appears that when the sixth payment came due two certificates were given, one of which for $1,140 was indorsed by Banham and delivered to Winmill. There is no question but that sum was then due to Winmill, and, on March eleventh, the Sheltering Arms paid to him upon it the sum of $500. The indorsement and delivery of this certificate to Winmill was an assignment to him pro tcmto of the sixth payment for a good consideration, and as it was executed and delivered before the plaintiffs’ lien was filed, gave to Winmill a preferential right to the amount due on the contract, and a subsequent lien- could not defeat his right to the money. (Lauer v. Dunn, 115 N. Y. 405; Stevens v. Ogden, 130 N. Y. 182.)

There were other small sums paid to Winmill after the plaintiffs’ lien was filed, but none of them represented money due to Banham under the contracts, and were not applicable to the payment of the plaintiffs’ lien.

We are of the opinion that the only sum to which the plaintiffs’ lien attached was the sum of $100 due for extra work. Emberson was a sub-contractor with Winmill, who, after Banham abandoned his contract, entered into an agreemant with the Children’s Fold to complete its building. It does not appear whether Winmill’s com tract was verbal or in writing or what the terms of payment were.

Emberson alleged in his answer that such a contract was entered into between Winmill and the Children’s Fold with the knowledge and consent of the appellant, which allegation is admitted by the appellant, and the fact of the making of such a contract to complete the building for $3,400 is found by the referee. In the absence of any testimony as to its terms, the contract price must be presumed to have been payable upon the completion of the work. In his first report the referee found that Winmill entered upon the performance of the work, but abandoned the same before completion, and did not substantially complete the same. In a supplemental report he found that Winmill substantially performed all said contract and completed said building,, with the exception of putting in a few locks, knobs of doors, some door steps and a small amount of plastering and some painting. This uncompleted work was done by the Children’s Fold at an expense of $261. G2. Deducting this and the amount paid to Winmill from the contract price, there was left a balance of $252, upon which Emberson was awarded a lien. •

The case in respect to the facts stated cannot be distinguished from Larkin v. McMullin (120 N. Y. 206) or Hollister v. Mott (132 id. 18).

It was held in those cases that when there was a failure on the part of the contractor to perform a substantial part of the work, and no provision in the contract for its completion by the owner in the event of the failure of the contractor, and no understanding between them that the owner should proceed with the work, , and no failure on the part of the owner to perform his obligation under the contract, a sub-contractor could not recover.

There is in such a case nothing due to the contractor upon which the sub-contractor’s lien can attach.

We are also of the opinion that .the contract was not substantially performed by Winmill. The finding in the supplemental report in this respect does not amount to a substantial performance.

The testimony is that Winmill left the work uncompleted, and new contracts were made with other mechanics for its completion. The abandonment of the work was willful and precludes a recovery by a sub-contractor. (Van Clief v. Van Vechten, 130 N. Y. 571; Anderson v. Petereit, 86 Hun, 600.)

The judgment in favor of Emberson must, therefore, be reversed and a new trial granted, with costs to abide the event. The recovery in favor of the plaintiffs must be reduced to $100 and costs, and, as so modified, the judgment is affirmed, without costs of appeal.

Pratt, J., concurred; Dykman, J., dissented.

Judgment in favor of Emberson reversed and new trial granted, costs to abide event. Judgment in favor of plaintiffs reduced to $100 and costs, and, as so reduced, affirmed, without costs.


text:
    Eva Joel, Appellant, v. The Woman’s Hospital in the State of New York, Respondent.

      Public cha/ritable corporation — not liable for the negligence of its s&rmnts.

    Upon the trial of an action brought against the defendant to recover damages resulting from its alleged negligence, it appeared that the plaintiff was a patient in the hospital of the defendant, a public charitable corporation, and, while there, was placed under the influence of an anaesthetic during the performance of an operation. It further appeared that patients, after undergoing operations, were placed on beds that were heated with bottles of hot water; that the plaintiff was placed in a bed heated in that manner, but from which the nurse had neglected to remove the bottles, and the consequence was that her foot, coming in contact with a bottle, was severely burned.

      Held, that the complaint was properly dismissed.
    Appeal by the plaintiff, Eva Joel, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Kings on the 26th day of January, 1895, upon the dismissal of the complaint directed by the court after a trial at the Kings County Circuit before the court and a jury.
    The action was brought to recover damages for alleged negligence upon the part of the servants of the defendant, whereby the plaintiff was injured while she was an inmate of the hospital owned by defendant.

      L. J. Morrison, for the appellant.

      P. H. Vernon, for the respondent.
   Brown, P. J.:

The plaintiff was a patient in the defendant’s hospital from September 15 to December 15, 1892. While there she was placed under tlie influence of an anaesthetic during the performance of an operation.

The evidence showed that patients, after undergoing operations, were usually placed on beds that were heated with bottles of hot water. The plaintiff was placed in a bed heated in that manner, but from which the nurse had neglected to remove the bottle, and the consequence was that her foot, coming in contact with the bottle, was severely burned. The evidence showed the defendant to be a public charitable corporation, and the appellant does not now deny that such is its character. Being such, we are of the opinion that the complaint was properly dismissed.

Van Tassell v. The Manhattan Eye & Ear Hospital (39 N. Y. St. Repr. 781) presented a case similar to that now before this court, and it was there decided by the Geueral Term, of this department that the defendant was not liable except for the omission to exercise due care in the selection of its sui’geons and other employees.

In the' absence of any controlling authority in this State we are bound by that decision.

The great weight of authority, however, supports the ruling of the trial court. (McDonald v. Mass. Gen. Hospital, 120 Mass. 432; Fire Insurance Patrol v. Boyd, 120 Penn. 624; Doyle v. N. Y. Eye & Ear Infirmary, 80 N. Y. 631; Harris v. Woman’s Hospital, 27 Abb. N. C. 37; Allan v. The State Steamship Co., 132 N. Y. 91; O’Brien v. Cunard Steamship Co., 154 Mass. 272.)

In the case of Glavin v. Rhode Island Hospital (12 R. I. 411) the ruling of the trial court, to which exception was taken, was much broader than in the case before us. In that case a verdict was directed for the defendant on the ground that a public charitable corporation was exempt from liability for any negligence on the part of its trustees, agents, etc.

While there is very much in the opinion tending to support the appellant’s contention, the case as presented by the exception is not necessarily an authority in her favor.

The judgment must be affirmed, with costs.

Dykman and Pratt, JJ., concurred.

Judgment affirmed, with costs.


text:
    Elwin S. Piper, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Bequests to charge— exceptions to a refusal to charge, when insufficient.

    At the close of the judge’s charge upon the trial of an action the defendant presented to the court twenty-eight requests to charge, some of which were charged and some refused. The defendant excepted to each of the charges made "by the court at the request of the plaintiff, and to each qualification of those requests and to each refusal to charge either of the propositions requested hy the defendant to be charged.

      Held, that these exceptions were wholly insufficient to present any question for review.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of tlie Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 1st day of December, 1894, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order bearing date the 23d day of November, 1894, and entered in the office of the clerk of the county of Kings, denying the defendant’s motion for a new trial made upon the minutes.

      Frederic A. Ward and Edwin D. Worcester, Jr., for the appellant.

      Joseph A. Burr, for the respondent.
   Brown, P. J.:

This case was before the General Term of this department at the December term in 1893 upon an appeal by the plaintiff from a judgment in favor of the defendant, entei’ed upon a dismissal of the complaint. The court then decided that the question as to the negligence of .both parties was for the jury.

We do not think that the case has been materially changed upon the retrial and we adhere to the decision then made.

The learned judge who wrote the opinion upon the former appeal appears to have understood that the plaintiff fell from the rear door of the rear car of the train. The fact that he fell from the vestibule between two cars does not make inapplicable the rule of law then applied or anything said in the opinion, and after a careful review of the testimony we think the case in all its aspects was for the jury.

At the close of the charge the defendant presented to the court twenty-eight requests, some of which were charged and some refused. The defendant excepted to each of the charges made by the court at the request of the plaintiff and to each qualification of those requests and to each refusal to charge either of the propositions requested by the defendant to be charged.

These exceptions are wholly insufficient to jiresent any question for review. (Smedis v. Brooklyn & Rockaway Beach R. R. Co., 88 N. Y. 22; Newall v. Bartlett, 114 id. 405; Huerzeler v. C. C. T. R. R. Co., 139 id. 490.)

Other requests were made and exceptions taken to the rulings of the court, but they present no other question than that arising upon the motion to dismiss the complaint and need not be considered.

None of the exceptions to the rulings upon evidence are well taken, and the judgment must be affirmed, with costs.

Dykman, J., concurred; Pratt, J., not sitting.

Judgment and order affirmed, with costs.


text:
    George H. Passey, Respondent, v. Horace Craighead, Appellant.

      Motion for a new Mai — the entry of an order denying the motion is necessary to a review of the facts.

    The facts in a case can only be reviewed upon an appeal from an order denying amotion for a new trial, and to give the court jurisdiction to hear such an appeal the order denying the motion must be duly entered.
    Appeal by the defendant, Horace Craighead, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of the county of "Westchester on the lftb. day of November, 1894, upon the verdict of a jury rendered after a trial at the "Westchester County Court, and also from an order of the County Court of Westchester county, entered in the office of the clerk of the county of Westchester on the 17 th day of November, 1894, denying the defendant’s motion for a new trial.

      William A. Boyd, for the appellant.

      Frederick W. Sherman, for the respondent.
   Brown, P. J.:

The facts in this case are not before the court for review. "While the notice of appeal purports to be from an order denying a motion for a new trial, there is no such order in the case. The record states that a motion for a new trial was made upon the judge’s minutes, and denied, and there is an exception to that ruling. That exception is not, however, available to the appellant on an appeal from the judgment. The facts can only be reviewed upon an appeal from an order denying a motion for a new trial, and to give the court jurisdiction to hear such an appeal, the order denying the motion must be duly entered. (Ehrman v. Rothschild, 23 Hun, 273; Boos v. World Mut. Life Insurance Company, 64 N. Y. 236, 242.)

None of the exceptions to the rulings of the court are well taken. The action was to recover damages sustained from the bite of a dog. The plaintiff testified to a conversation with the defendant which, if believed, showed the dog to be vicious, and that the defendant was aware of its character. This testimony required the submission of the case to the jury, and the exception to the denial of the motion to dismiss the complaint cannot be sustained.

The counsel has called our attention to many circumstances tending to weaken the plaintiff’s testimony, but their consideration was all for the jury and affects only the weight of the evidence. As we are confined in our review of the case to the consideration of legal questions, the argument is without weight.

We have examined the exception to the rulings upon the admission of evidence and to the charge of the court, but none of them require the reversal of the judgment.

The judgment must be affirmed, with costs.

Dykman and Pratt, JJ., concurred.

Judgment affirmed, with costs.


text:
    James H. Ryan and Duncan Thompson, Respondents, v. Francesco Pistone, Appellant.
    Novation— essentials of.

    To constitute a novation there must be a mutual agreement among three or more parties whereby a debtor, in consideration of being discharged from his liability to his original creditor, contracts a new obligation in favor of a new creditor. Facts considered which do not constitute a novation.
    Appeal by the defendant, Francesco Pistone, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of "Westchester on the 31st day of March, 1894, upon the verdict of a jury rendered after a trial at the West-chester Circuit, and also from an order bearing date the 13th day ■of March, 1894, and entered in the "Westchester county clerk’s ■office, denying the defendant’s motion for a new trial.

      Clarence D. Jones, for the appellant.

      Ralph Hickox, for the respondents.
   Brown, P. J.:

The, exception taken to the denial of the motion to dismiss the complaint must be sustained.

It appears that one Ceburre entered into a contract with the defendant to erect a house. Ceburre sublet the roofing and plumbing to the plaintiffs, and there was a balance unpaid for their work. 'The plaintiff Ryan testified to a conversation with the defendant, in which defendant orally agreed to pay the plaintiffs’ bill, and deduct it from the amount due to Ceburre. It does not appear that Ceburre consented to this arrangement, or was consulted about it. The testimony was that he was present at the conversation, but said nothing. Thereafter defendant paid plaintiffs $200, and this action was brought to recover the balance. The case presents nothing more than an oral agreement without consideration, to pay the debt of another. To constitute a novation there must be a mutual agreement among three or more parties, whereby a debtor in consideration of being discharged from his liability to his original creditor contracts a new obligation in favor of a new creditor. Ceburre could not be held to have discharged the defendant, from the mere fact that he was present at the conversation between Ryan and the defendant. That fact did not estop him from enforcing his claim against the defendant. If he had sued defendant for the balance due him upon his contract the day following the conversation, defendant could not successfully have pleaded an oral agreement to pay the plaintiffs. (Kelly v. Roberts, 40 N. Y. 432.)

But if the agreement was not binding upon Oeburre the moment it was made it did not become so by anything that occurred thereafter.

The case does not fall within the doctrine of Lawrence v. Fox (20 N. Y. 268).

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

Pratt, J., concurred; Dykman, J., not sitting.

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


author: Pratt, J.:

text:
    In the Matter of the Application of Edward Freel for a Writ of Mandamus. George W. Palmer, as Comptroller of the City of Brooklyn, Appellant; Edward Freel, Respondent.

      Peremptory mandamus — when affirmed on appeal.

    Where the examination of the trial judge, upon an application for a writ of peremptory mandamus, as to the issues of fact material to the petitioner’s right has been peculiarly exhaustive and his conclusion is that the denials are in such form and are so open to objection because of their general and indefinite character that they must he disregarded, and no adequate reason appears or is urged before the court on appeal for overturning his exercise of discretion, an order directing the mandamus to issue will be affirmed.
    Appeal by George W. Palmer, as comptroller of the city of Brooklyn, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 2d day of March, 1895, directing that a peremptory writ of mandamus issue directing George W. Palmer, as comptroller of tbe city of Brooklyn, to approve and to make and sign a warrant for the payment to Edward Freel of his claim against the city of Brooklyn.

      Albert Q. McDonald and Alfred JE. Mudge, for the appellant.

      James B. Soley, for the respondent.
   Pratt, J.:

This is an appeal by the comptroller of the city of Brooklyn from an order of the Special Term, entered March 2, 1895, directing a peremptory mandamus to issue- commanding said 'official to approve petitioner’s claim for $82,068 and to make and sign a warrant for'its payment.

The proceeding is based upon a petition and numerous affidavits. On the 16th day of December, 1889, the city, acting through its. mayor and its commissioner of city works, entered into a contract with petitioner for the laying of water pipes and the construction of a reservoir. The work was to be done under the direction of the chief engineer of the department of city works. Amounts due or to become due under it were to be ascertained, determined and certified by the chief engineer.

The work was completed upon August 21,1893. Thirty monthly estimates made as prescribed have been paid. The thirty-first monthly estimate and the thirty-second, called on its face the “ final monthly estimate,” have been awaiting payment since November, 1893. They constitute the petitioner’s claim herein which represents their total amount less $30,000, paid by the city on account of the contract upon July 1, 1894.

The learned justice presiding at the Special Term held that the petitioner made out a full case for a peremptory mandamus. That opinion we share and the proofs and allegations of petitioner were in no way drawn into controversy. In this case, however, several answering affidavits were filed in which there was at least an attempt to controvert the main and material allegations of the petition.

To these affidavits the petitioner filed eight affidavits in reply. If the application, after this complexion was put upon it, had seemed to the learned justice below to have presented issues of fact material to petitioner’s right and fairly raised within the rules of procedure and pleading in such cases, doubtless he would at most have directed the issuance of an alternative writ. Iiis examination of this branch of the case is peculiarly exhaustive and his conclusion is that the denials are in such form and are so open to objection because of their general and indefinite character that they must be disregarded. No adequate reason appears or is urged before us for overturning this exercise of discretion.

The case as presented may not have been absolutely free from doubt, but it was easy for the city to present its case much more forcibly if its contention is meritorious.

The corporation counsel urges that at the Special Term the case was treated as if an issue of fact was upon trial, and that it should have been treated as the determination of the question whether an issue of fact was fairly raised. This cause of grievance would have been avoided by a different presentation of the city’s defenses if those defenses are susceptible of different or better presentation.

It appeared upon the argument that by no possibility could the city ever be damaged by the issue of a mandamus, for the reason that it had a large sum, ten per cent on the contract price, reserved, which would amply indemnify the city for any possible claim that-the city could hereafter have arising out of the contract. There was, therefore, no possible defense suggested upon the merits, and. no issue of fact raised.

If these views are correct it follows that the order must be affirmed.

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

Order affirmed, with costs.


text:
    Patrick Hart, Respondent, v. The Brooklyn Elevated Railroad Company and The Union Elevated Railroad Company, Appellants.

      Elevated railroad — action for an injunction and damages — admission of improper evidence — when a judgment will not he reversed therefor — trial properly had at Special Term.

    Upon die trial of an action brought against an elevated railroad company to enjoin the further operation of the road and for the recovery of the rental and fee value of the easements taken by it, evidence was admitted as to rental value of property other than that of the plaintiff before and after the construction of the road.

      Held, that although the evidence was inadmissible, still, as the amount allowed for loss of rental was small and was supported by other competent evidence, and as upon an examination of the whole case it appeared that the appellant had not been prejudiced thereby, the judgment would not be reversed.
    .Such a case is of an equitable character and is properly triable at the Special Term and a defendant is not entitled to a j ury trial.
    . Appeal by the defendants, Tlie Brooklyn Elevated Railroad Company and The Union Elevated Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 7th day of January, 1895, upon the decision of the court, rendered after a trial at the Kings County Special Term, perpetually enjoining the defendants and their servants and agents from maintaining an elevated structure on Adams street, in the city of Brooklyn, in front of the plaintiff's premises, unless they pay to the plaintiff a certain sum as fee damages, and adjudging that the plaintiff recover of said defendants the damages sustained up to the time of the bringing of the action.
    The action was brought to enjoin the further operation of the defendants’ elevated road and for the recovery of the rental and fee value of the easements taken by them.

      William H. Page, Jr., for the appellant.

      Francis P. Whitney, for the respondent.
   Brown, P. J.:

Upon the trial of this action, the court admitted evidence as to the rental value of property other than that of the plaintiff before and after tlie construction of the defendants’ road. The defendants objected to the admission of such testimony and excepted to the ruling of the court.

"We are of the opinion that the testimony was inadmissible and should not have been received. (Huntington v. Attrill, 118 N. Y. 365; Matter of Thompson, 127 id. 463.)

The rule stated in those cases is as applicable to rental value as to fee value. In Matter of Thompson it was said that “ a party may not establish the value of his land by showing what was paid for another parcel similarly situated, because it operates to give to the agreement of the grantor and grantee the effect of evidence by them that the consideration for the conveyance was the market value, without giving to the opposite party the benefit of cross-examination to show that one or both were mistaken.” But, although the ruling admitting the testimony was erroneous, we do not think that it affected the result reached by the court. The amount allowed for loss of rental was small and is supported by other competent evidence, and the rule is well settled that a judgment will not be reversed for érror in the admission of testimony, when the court is satisfied, upon an examination of the whole case, that the appellant has not been prejudiced thereby. (McGean v. The Manhattan Railway Co., 117 N. Y. 219.)

The appellant has not in this case been prejudiced by the testimony admitted, and the judgment must be affirmed.

The defendant also appeals in this and three other cases argued at this term of the court from an order denying a motion to send the cases to the Circuit for trial and also denying a motion to stay the trial of the action pending condemnation proceedings. The cases were all of an equitable character and were properly triable at the Special Term, and defendants were not entitled to a jury trial.

The condemnation proceedings were commenced after the actions were at issue and upon the calendar of the court for trial. The decision made by this court in The Matter of the Brooklyn Elevated Railroad (76 Hun, 79) is not, therefore, applicable, as in that case the actions which were stayed were commenced after condemnation proceedings were instituted.

The motion was properly denied, and the order must be affirmed.

Judgment and order affirmed, with costs.

Dykman and Pratt, JJ., concurred.

Judgment affirmed, with costs.

      See post, page 859.


text:
    Eliza W. Randall, Respondent, v. Arington H. Carman, as Assignee for the Benefit of Creditors of Seward S. Smith, Appellant, Impleaded with Seward S. Smith.

      Chattel mortgage — an implied agreement that the mortgagor may-sell for his own benefit renders the mortgage mid.

    An agreement 'between a chattel mortgagee and. the mortgagor that the mortgagor may sell the mortgaged property for his own benefit will render the mortgage • void as to the mortgagor’s creditors, whether the agreement is expressed in the mortgage itself or exists by tacit understanding and arrangement between the parties.
    A chattel mortgage was executed, pursuant to a contract for the sale of a stock of goods, which contained the following clause: The balance (of the purchase money) “to he secured by a chattel mortgage to cover said stock of goods and all after-acquired goods for sale in said store, and said debt to be paid in installments of fifty dollars per month, or as near said sum as the profits of the business will warrant.” Thereafter the mortgagor made a general assignment for the benefit of his creditors.
    In an action brought to foreclose the chattel mortgage given in pursuance of said contract,

      Held, that the chattel mortgage was fraudulent as to the creditors of the mortgagor and was void.
    Appeal by the defendant, Arington H. Carman, as assignee, etc., of Seward S. Smith, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 29th day of December, 1894, upon the decision of the court rendered after a trial at the Kings County Special Term.
    This action was brought to foreclose a chattel mortgage bearing date June 20, 1892, given by one Seward S. Smith to the plaintiff’s assignor, one Henry L. Randall, to secure the payment of a part of the purchase price of a stock of goods sold by said Randall to said Smith. The condition of the mortgage was to pay $2,300 according to tbe terms of a promissory note executed simultaneously therewith, and by its terms it covered the stock of goods in the store leased by Smith from Randall and “ all such goods and merchandise as said Seward S. Smith may hereafter acquire and put into said store to enable him to continue his said business.” It also provided that until default, the mortgagor should continue “ in the quiet and peaceable possession of the said goods and chattels and the full and free enjoyment of the same.” The following is a copy of the promissory note referred to in the mortgage:
    c< $2,300. Pout JeffeesoN, N. Y., June 20, 1892.
    “ For value received I promise to pay to the order of Henry L. Randall, the sum of twenty-three hundred dollars in manner following to wit: the sum of fifty dollars during each and every month until said principal sum shall be paid, or as near said sum monthly as the profits of his store business will warrant, the whole sum to be paid not later than the 1st of July, 1897.
    “S. S. SMITH.”
    The note and mortgage were executed and delivered pursuant to a written agreement for the sale of the stock of goods, and which provided, among other things, that the balance of the purchase money was “ to be secured by a chattel mortgage to cover said stock of goods and all after-acquired goods for sale in said store, and said debt to be paid in installments of fifty dollars per month, or as near said sum as the profits of the business will warrant. The said Seward S. Smith agrees to keep said stock up to its present variety and amount, and in case of failure to do so said Henry L. Randall may exercise his rights under the chattel mortgage to be executed. Said chattel mortgage shall bear the date of this agreement, and said lease shall bear date the 1st day of September, 1892.”
    On August 3, 1892, Smith executed to the defendant Oarman a general assignment for the benefit of creditors. During the time he was in business he kept the stock up in variety and amount to what it was at the time of the sale. His sales during that period amounted to upwards of $24,000, and he paid upon the note and mortgage the sum of $437.
    It was the claim of the assignee that the mortgage was void as against the creditors of the mortgagor, but the court held that it was a valid lien upon such part of the original stock of goods as was transferred to the assignee.

      T. M. Griffing, for the appellant.

      Thomas J. Hitch, Jr., for the respondent.
   Brown, P. J.:

The trial court decided that the provisions in the mortgage relating to after-acquired property rendered it, as to such property, void against the assignee. It found, however, that the execution and delivery of the mortgage was an honest transaction, and held the mortgage to be a valid lien upon such of the mortgaged property as was transferred to the assignee, and the question presented upon this appeal is whether this latter ruling can be sustained in view of the undisputed agreement between the parties relating to the mortgagor’s power to sell the property.

The rale has been settled by numerous authorities that an agreement between the mortgagee and mortgagor that the latter may sell the mortgaged property for his own benefit will render the mortgage void as to the mortgagor’s creditors, and it is immaterial whether the agreement is expressed in the mortgage itself or exists by tacit understanding and arrangement between the parties. (Mandeville v. Avery, 124 N. Y. 376; Reynolds v. Ellis, 103 id. 115; Potts v. Hart, 99 id. 168; Southard v. Benner, 12 id. 424; Robinson v. Elliott, 22 Wall. 524.)

There is nothing in Brackett v. Harvey (91 N. Y. 214) which is in conflict with this rule. That case decided that a chattel mortgage was not rendered void by an agreement by which the mortgagor was permitted to sell the mortgaged property and apply the proceeds to the payment of the mortgage debt and as subsidiary thereto an agreement by the mortgagee to take and apply on the debt good business paper given to the mortgagor on sales made on credit, and that the mortgagors might use a part of the avails of such sales to replenish their stock, the substituted property being placed under the lien of the mortgage by monthly renewals thereof.

The rule that agreements which permit a mortgagor to sell for his own benefit are necessarily fraudulent, was distinctly recognized by the court. Such agreements, it was said, strip the mortgage of its whole force as a security to the holder and make it merely a shield to the debtor.”

In this case it is a necessary conclusion from the provision of the mortgage, the note and the written agreement between 'the parties for the purchase and sale of the store, that the mortgagor was to sell the stock in the usual way of a retail store, and out of the profits of the business pay to the mortgagee fifty dollars a month, or more or less, according as the profits warranted a larger or smaller payment. Such an agreement, we think, was necessarily fraudulent. The provision for the payment of fifty dollars “ from the profits ” implies an agreement that the mortgagor may, out of the proceeds of the sale of the mortgaged property, pay the rent of the store and the expenses of the business. This was a provision for him to use the property for his own benefit. Moreover, there was no restriction as to sales on credit, and bad debts contracted from sales so made would necessarily be considered at some time before the maturity of the mortgage in determining the profits of the business. The mortgagor was at liberty to have sold out the whole of the mortgaged property on credit. The accounts of such sales would not, imder the agreement between the parties, be transferred to the mortgagee and applied upon his debt, but would be collected by the mortgagor and paid over to the mortgagee only in case the profits ” of the whole business warranted it.

That an agreement which would permit such results is fraudulent as to creditors of the mortgagor, is beyond question. (Jones on Chat. Mort. [4th ed.] § 401; City Bank v. Westbury, 16 Hun, 458.)

It tends to mislead, delay and hinder creditors in collecting their debts, and, as was said in Brackett v. Harvey (supra),opens the door to fraud and permits the mortgagor to use the property for his own benefit, utilizing the mortgage as a shield against other creditors.”

The judgment must be reversed, and as a new trial would be useless, the complaint is dismissed, with costs.

Dykman and Pratt, JJ., concurred.

Judgment reversed, and complaint dismissed, with costs.


text:
    In the Matter of William H. Kent, as Administrator, etc., of Mary Kent, Deceased, Respondent, v. William Rockwell and Charles J. Pearson, Attorneys, etc., Appellants. In the Matter of Jane Learey, Respondent, v. William Rockwell and Charles J. Pearson, Attorneys, Appellants.

      Attorney and client — clients money misappropriated by an attorney's direction — attorney liable therefor.

    In a proceeding, instituted against two attorneys at law to compel the payment over of money which was received by them for their clients, it appeared that the money had been received in a partition suit and that a portion of the money ■due their clients had by direction of the attorneys been paid by the referee to the attorneys’ landlord for rent which was due from the attorneys, and was deducted from the money in the hands of the referee due to their clients.

      Jleld, that in reality and in legal contemplation the lawyers received the money; that they assumed control over it, and instead of taking the money themselves, as they were at liberty to do and paying it to their landlord, they directed the actual custodian of the fund to pay it to him; that what was so done by the referee, in the eye of the law, they did themselves, and that it was equivalent to receiving the money themselves;
    ‘That the attorneys perpetrated a wrong upon their clients when they used the money in the hands of the referee to pay their own debt, and that it would con.stitute a violation of legal principles to permit them to profit by their own wrong, and that an order directing the payment of the money to their clients should be affirmed.
    ■ Appeal by William Rockwell and Charles J. Pearson from an order of tlie Supreme Court, made at the Kings County Special Term, bearing date the 20th day of January, 1895, and entered in the office of the clerk of the county of Kings, directing said Rockwell and Pearson, or one of them, to pay to William H. Kent, as administrator, or to Charles N. Judson, his attorney, the sum of $296.48, with interest, being the balance remaining in their hands received by them for Mary Kent in an action in partition.
    Also an appeal by William Rockwell and Charles J. Pearson from •an order of the Supreme Court, made at the Kings County Special Term on the 14th day of January, 1895, and entered in the office of the clerk of the county of Kings, denying the motion of said Rockwell and Pearson to vacate and set aside the order entered in said clerk’s office on the 11th day of October, 1894.

      Joseph P. Joachimsen, for the appellants.

      Charles W. Judson, for the respondents.
   Dykman, J.:

These are two proceedings against William Rockwell and Charles J. Pearson, who are attorneys and counselors at law, to compel the payment over of money which was received in .a fiduciary capacity for their clients. They are considered in connection with each other, because to a certain extent the controlling facts are the same in each.

On the 16th day of January, 1893, Mary Kent made an application to the court at Special Term to compel the appellants to pay over certain moneys which they had received for her. That application was based upon a petition which stated substantially that she, with two of her sisters, Jane Learey and Esther Poster, were defendants in an action for the partition of real property, and employed the appellants as their attorneys in that suit; that such proceedings were had in that action; that the premises were sold under the direction of the court, and the petitioner was entitled to realize from the proceeds of such sale as her distributive share the sum of $686.48, and that her two sisters were each entitled to receive a similar sum; that the appellants received from the referee the sums so belonging to each of the three defendants and received for the petitioner the sum of $686.48, beside the sum allowed to the appellants for costs in that action;, that the ajjpellants had paid to the petitioner the sum of $300, but have neglected and refused to pay over the balance, and the petitioner prayed for an order directing the appellants to pay over to the petitioner the balance remaining in their hands, to wit: $386.48, or show cause why an attachment should not issue against them. Upon that application William Rockwell, one of the appellants, presented an affidavit, in which lie stated, substantially, that they were practicing attorneys and counselors of the Supreme Court, and were retained by the petitioner as her attorneys in the partition suit; that on or about the 15th day of December, 1892, his firm received from the referee the sum of $686.48, being the share allowed to the petitioner Mary Kent, and on the same day paid to her the sum of $300, stating .at that time that it was not to be considered as a settlement, but that his firm would be obliged to wait for the bill of other attorneys necessarily employed by them in the conduct of the defense in that action before they could render a complete and final settlement; that the bill of costs of his firm amounted to $215, $150 of which was an allowance made by the court. Upon the petition and affidavit so presented it was decided at Special Term that the appellants should pay over the balance of the money which they had so received for the petitioner.

No formal order was entered upon that decision, and about the 7th day of February, 1894, during the pendency of the proceedings, the petitioner Mary Kent died, and William Kent was appointed the administrator of her estate by the surrogate of Kings county. He qualified as such administrator and entered upon the discharge of his duties. After he was so appointed he presented a petition to the Supreme Court, at Special Term, in which he recited the previous proceedings on the part of his intestate for the procurement of the money, and that she had died, and he had been appointed the administrator of her estate, and that he was desirous of continuing the proceedings, and asked for an order continuing the same in his name. On the twenty-sixth day of January an order was made directing the proceedings to be continued by William II. Kent as administrator of the said petitioner Mary Kent, deceased, and that he be substituted as the petitioner in her place, and be allowed to amend the petition forthwith, and that the amended petition be filed as the petition of the administrator in this proceeding. Thereupon the administrator presented a second petition to the court at Special Term, in which he substantially recited the facts which had been stated in the petition of his intestate, and prayed that the appellants be directed to pay over to him as such administrator the balance remaining in their hands which belonged to his intestate. In answer to that petition, William Kockwell made an affidavit in which he stated substantially that his firm never actually received the full amount of the shares of Mary Kent, Jane Learey and Esther Foster, to wit, $2,059.44, and only received the sum of $1,282, of which they have paid to Mary Kent, Jane Learey and Esther Foster each $300, making an aggregate of $900, and since that time they have paid to Mary Kent and Jane Learey the sum of $190 each additional. That before any moneys were received by them they gave an order to their landlord upon the referee for the sum of $'¡72.38 for rent which was due from them to their landlord, to be deducted from the moneys in his hands as such referee; that such order was presented by the person to whom it was given to the referee, and he paid the same to him and deducted the amount thereof from the sum which should have been paid to the three defendants, Kent, Learey and Foster, and paid only the balance thereof to the appellants, and he, therefore, asked that the application be dismissed, or that it be decreed if any sum be paid by his firm to the petitioner that it will be only the sum of $37.33, that being the only sum they had actually received in excess of what they paid.

William Rockwell made a second afiidavit in that same proceeding on the 3d day of November, 1894, in which he stated that the first afiidavit made by him in answer to the petition presented by Mazy Kent was made hurriedly and under a misapprehension of the legal effect of the facts which were set forth in his last affidavit.

Thereupon an order was made at the Special Term that the appellants pay to William H. Kent, as administrator, or Charles Judson, his attorney, the sum of $296.48, with interest from December 15, 1892, and from that order Rockwell and Pearson, the attorneys, have appealed to this court.

In the case of Mrs. Learey the .facts and proceedings are substantially the same down to the first afiidavit made by William Rockwell in answer to the petition presented by Mary Kent in the fii’st instance. But in the Learey case the decision was in favor of the petitionei’, and an order was made on the 17th of October, 1894, directing the appellants to pay over the balance of $296.48, which, remained unpaid upon that portion, to the petitioner, Mrs. Learey. Thereupon William Rockwell procured an order requiring the petitioner, Mrs. Learey, or her attorney, to show cause at a Special Tei’m of the Supreme Court in Brooklyn, on the 3d day of November, 1894, why the order made on the 17th day of October, 1894, should not be vacated and set aside, and why there should not be a reargument of the motion, and why the petition of Mrs. Learey should not be dismissed. That application was based upon an affidavit of William Rockwell, which stated substantially the same facts as the affidavit made by him in answer to the petition of William H. Kent, as administrator. This last affidavit contained also a statement that through inadvertence or misapprehension the view of the case stated there was not thoroughly, if at all, presented on the hearing of the original motion. Upon the hearing of that application the motion for reargument was denied, and from the order denying that motion to vacate and set aside the original order, and to grant a reargument of that motion, the attorneys Rockwell and Pearson have appealed. There is no appeal in this Learey case from the original order, so that the only question before us in the Learey case has reference to the denial of the motion for a reargument of the original motion, so that the questions now for determination relate to the appeal from the order made in favor of the administrator of the original petitioner for the payment of the money to him, and the denial of the motion for reargument in the Learey case. "We do not see how. the failure by the lawyers to receive all the money belonging to their clients can exempt them from liability in view of the cause of such failure. In reality and in legal contemplation the appellants did receive the money. They assumed control over it, and instead of taking the money themselves, as they were at liberty to do, and paying it to their landlord, they directed the actual custodian of the fund to pay it to him. What they so did by the referee, in the eye of the law, they did themselves, and it was equivalent to receiving the money themselves.

The attorneys perpetrated a wrong upon their clients when they used the money in the hands of the referee to pay their own debt, and it would constitute a violation of legal principles to permit them to profit by their own wrong.

Moreover, if that act furnished immunity to the attorneys, the referee would remain responsible to the parties, which would be very unjust as between him and the lawyers.

Both orders should be affirmed, with ten dollars costs and disbursements in each case.

Brown, P. J., and Pratt, J., concurred.

Orders affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of the Final Accounting of William E. Scott and Alexander T. Brown, as Assignees for the Benefit of Creditors of William A. Drake. Laura C. Aber, Appellant; William E. Scott and Alexander T. Brown, as Assignee, etc., of William A. Drake, Respondents.

      Assignee for creditors — claim of preference for wages — when it can he made — when the giving of a note is not the payment of a debt.

    Laura 0. Aber ior many years was a domestic servant of one William A. Drake. Drake, being indebted to ber for services in llio sum of 81,400, gave her his promissory note for that sum, payable one year after date. Subsequently Drake made a general assignment for the benefit of creditors. She held the note and presented it to his assignees without claiming any preference. Two days after the assignees had rendered their final account to the court, Laura C. Aber, to whom, as appeared by the account of the assignees, a dividend had been made as a general creditor, gave notice of a motion to compel the assignees to allow her claim as a preferred claim.

      Held, that the note was merely evidence of the debt and was not the debt itself, it not having been accepted as payment; that its only effect was to extend the time of payment of the debt; that the claimant had been an employee of the assignor and he owed her §1,400 for her wages as such at the time of the assignment and that such debt was entitled to a preference under the statute; that the failure to present the note to the assignees and make the demand for a preference when the claim was first presented having resulted ig. no injury to any one, it would be unjust to deprive her of her rights because of her failure to make a proper demand in time.
    Appeal by Laura C. Aber, a creditor of William A. Drake, from an order of tbe County Court of the county of Orange, bearing date the 23d day of April, 1895, and entered in the Orange county clerk’s office, denying a motion made by ber that her claim against William A. Drake be made and stated as a preferred labor claim in the account of his assignees for the benefit of creditors, and that such account be corrected accordingly.

      John W. Lyon, for the appellant.

      Lewis E. Carr, for the respondents.
   Dykman, J.:

This is an appeal from an order of the county judge of Orange county, denying a motion in this matter, made on behalf of Laura C. Aber, to have her claim allowed by the assignees as a preferred claim. William A. Drake made an assignment for the benefit of his creditors on the 26th day of' January, 1893, to the above-named assignees, who accepted the trust and proceeded to administer the same. They advertised for-claims as the law requires. Laura C. Aber, the appellant, presented to and filed with the assignees a claim against the estate of the assignor as one on his promissory note for $1,400, dated March 27, 1890, and payable one year after date. The assignees rendered their final accounting March 26,1895 ; two days thereafter Laura C. Aber, to whom a dividend was made as a general creditor, gave notice of a motion for April 23, 1895, to compel the assignees to allow her claim as a preferred claim. That motion was heard and denied by the county judge and the appeal is from that order of denial. There is no dispute about the facts.

Laura C. Aber, for many years prior to March 27, 1890, was a domestic servant of the assignor Drake, and on that day he was indebted to her for services in the sum of $1,400, for which he gave her his promissory note, payable one year after date. She held the note and presented it to the assignees without claiming any preference, and they resisted her present claim because she accepted the note for her wages and made no claim under it for a preference under the assignment.

The denial of the motion by the county judge was erroneous. The claimant had been an, employee of the assignor and he owed her' $1,400 for her wages as such at the time of the assignment, and the debt was entitled to a preference under the statute. The note was merely the evidence of the debt and was not the debt itself. The note was not accepted as a payment, and its only effect was to extend the time of the payment of the debt.

The failure to present the note to the assignees and make the demand for a preference when the claim was first presented, has resulted in no injury to any one, and it would be unjust to deprive the appellant of her just rights because she failed to make a proper demand in time. The note can be surrendered at any time to the assignees, and no claim upon it can be prosecuted, (Matter of Heath, 46 Hun, 114.)

The order should be reversed, with ten dollars costs and disbursement's, and the motion granted without costs.

Brown, P. J., and Pratt, J., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, without costs.


text:
    Archibald N. McBean, Appellant, v. William McCallum, Respondent.

      Damages for breach of a contract to exchange real property — when a decision of the trial court will not be inteifered with.

    In an action brought to recover damages lor the breach of a contract for the exchange of real property, where the facts are peculiar and there is no fixed legal rule of damages which would apply specially to the case, and where it cannot be gathered from the testimony that the plaintiff sustained damages beyond the amount which he was awarded, and no specific rule of law in relation to the damages has been violated, the decision of the trial court will not be interfered with upon appeal by the plaintiff from a judgment in his favor.
    Appeal by the plaintiff, Archibald N. McBean, from so much of a judgment of the Supreme Court in favor of the’plaintiff, entered in the office of the clerk of the county of Kings on the l'Tth day of August, 1894, upon the decision of the court rendered after a trial at the Kings County Special Term, as orders, adjudges and decrees that the plaintiff herein recover of the defendant the sum of $200 as damages, and limits said damages to said sum of $200.

      Alexander S. Bacon, for the appellant.

      Ralph E. Prime, for the respondent.
   Dykman, J.:

This is an appeal by the plaintiff from a judgment in his favor. An action was brought to recover damages against the defendant for a breach of contract for the exchange of real property between them. The action was tried before a judge without a jury, and he decided in favor of the plaintiff, and fixed the damage at $200.

The appeal is upon the ground that the court erred as to the measure of damages, which the plaintiff insists should have been much larger. The facts are that the plaintiff was the owner of a house and some land in the city of Brooklyn, and the defendant was the owner of land in the city of Yonkers. A written contract for the exchange of property between them was made and signed by the parties, and when they met to close the transaction the land of the plaintiff was found to be incumbered beyond the knowledge of the defendant, and he refused to carry the contract into execution.

The sole question involved in the appeal is one of damages.

In this case the facts seem to be peculiar, and there is no fixed legal rule of damages which would apply to this case specially.

It cannot be gathered from the testimony that the plaintiff sustained damages beyond the amount which was awarded to him by the trial judge, and as no specific rule of law in relation to the damages has been violated, we see no reason for interference with the decision upon that sole ground. The finding of the trial judge in respect to the damages should be treated the same as the verdict of a jury, and if this action had been tried before a jury, and a verdict rendered in favor of the plaintiff for $200, the appellate court would not feel at liberty to interfere with the verdict. As the same rule should apply to this case, we think the judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


text:
    The People of the State of New York ex rel. Ernest Van Bergen, Relator, v. Leonard R. Welles, as Commissioner of Police and Excise of the City of Brooklyn, Respondent.

      Disaha/rge of a patrolma/n— la/rceny — there must he a criminal intent.

    The relator, a policeman in the city of Brooklyn, was dismissed from his position after a trial "before the respondent, upon the charge of larceny. Upon the trial it appeared that the relator went to the store of one S. Y. Coles, and took some eggs. It further appeared that permission had been given to the relator, by a clerk in the employ of Coles, to enter the store at any time and help himself to such articles as he wanted.

      Held, that upon such a state of facts the criminal intent necessary to the conviction of the relator of the crime of larceny was entirely wanting, and that it was. immaterial whether the clerk who gave him permission to take the articles had authority to do so or not.
    CeRtioRARI issued out of the Supreme Court, and attested on the 17th day of January, 1895, directed to Leonard R. Welles, commissioner of police and excise of the city of Brooklyn, directing him to' certify and return to the office of the clerk of the county of Kings all the proceedings had and taken before him concerning the dismissal, discharge and removal from office of Ernest Yan Bergen, a policeman duly appointed, and holding office as á policeman in the city of Brooklyn.

      James C. Church, for the relator.

      Jacob Brenner, for the respondent.
   Dykman, J.:

This is a proceeding by certiorari to review the action of the' defendant as commissioner of police and excise of the city of Brooklyn, in removing the defendant from his position on the police force.

The relator was a patrolman in the city of Brooklyn and was dismissed from that position, after a trial by the respondent, upon the charge of larceny. The specification of the charge was, that on the 17th day of June, .1894, the relator violated a rule of the police department by leaving his post and entering a milk and butter store and stealing eggs from a box.

Upon the trial it appeared that the relator went to the store of S. V. Coles and took some eggs. It appeared further upon the trial, without contradiction, that permission had been given to the relator by an employee of Coles to enter the store at any time and help himself to such articles as he wanted, and when the witness was asked if he specified eggs as an article which the relator could take, he answered that he told the relator to take anything that he wanted. The relator acted upon that permission, which seems to have been given to other policemen besides himself, and took the eggs in question for the purpose of having them boiled to eat himself. Under this state of facts it is entirely plain that tbe criminal intent necessary to the conviction of the relator of the crime of larceny is entirely wanting. The cleric gave him permission to take the articles which he took, and it is immaterial whether the clerk had authority to do so or not. The relator took the eggs because he supposed he had the right to do so, and he had ample reason for such belief.

The proceedings which resulted in his conviction should, therefore, be reversed, and he should be restored to his position as patrolman.

Brown, P. J., and Pratt, J., concurred.

Determination annulled, and relator restored to his position.