author: Per Curiam :

text:
    In the Matter of the Petition of The Brooklyn Elevated Railroad Company, Appellant, Relative to Acquiring Title to Real Estate or a Right of Way on Grand Avenue in the City of Brooklyn and County of Kings; Isaac Lewis and Others, Owners of Parcel No. 17, Respondents.

      ‘Condemnation proceedings — awan'd not set aside as inadequate or excessive — benefits conferred to be offset against injury — nominal cmard.

    An award made commissioners will not be set aside for inadequacy or as excessive, unless it is palpably wrong in that respect.
    The fact that the construction and operation of an elevated railroad creates discomfort to the occupier of residential property abutting on the street whereon the elevated structure is erected is not conclusive in condemnation proceedings as to the right of the owner or occupant to a substantial award. If the property has enhanced in value, in part because of the construction and operation of the elevated road, and the increase is sufficient to equal the injury caused by the road, the property owner is not entitled to more than a nominal award.
    Appeal by The Brooklyn Elevated Railroad Company 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 22d day of October, 1894, denying tjie petitioner’s motion to confirm the report of the commissioners appointed in condemnation proceedings as to parcel No. 11, appointing three commissioners of appraisal to ascertain and appraise the compensation to be made to the owners of parcel No. 11 for the easements or interests therein taken for the public use, and also from that portion of an order made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 1th day of November, 1894, which denied the- petitioner’s motion for a resettlement of said order of October 22, 1894, granting respondents’ motion to set aside the report of the commissioners of appraisal in condemnation proceedings.

      Frederick P. Delafield, for the appellant.

      Ira Leo Bamberger, for the respondents.
   Per Curiam :

It is settled by authority that an award by commissioners will not be set aside for inadequacy or because excessive, unless the award is palpably wrong in either respect. This case cannot be said to present such an aspect, though we might have differed from the commissioners in their determination. The building, a flat house, was erected long after the construction of the railroad. It cost the respondents about $18,500. At the time of the hearing before the commissioners it was fully occupied at a gross rent of $1,900 a year. Experts on both sides testified that ten per cent of the value was a fair rental on such property. The rent received at the time of the hearing would tend to show that there had been no depreciation in value. The learned judge at Special Term considered it conclusive evidence of damage that the gross rent received for two years previous was -about $1,515 a year. But this was an error; the ten per cent estimate agreed on by all the witnesses was of gross rental values, not allowing for vacancies and loss of rent, which was estimated to be about ten per cent. With this deduction there would appear no great discrepancy between the rents received and the-estimated rental value. That the construction and operation of an elevated railroad must create some discomfort to the occupier of residential property, as assumed by the judge below, may be conceded, but that is not conclusive as to the right to a substantial award. There is evidence in the case to show that property in the-vicinity, including that on the street on which the road is constructed, has enhanced in value, and that in part, at least, it is due to the elevated road. If this ivas sufficient to equal the injury caused by the road, the property owner was not entitled to more than, a nominal award. The case, therefore, presented a fair question of' fact, and the award should stand, it not appealing that the commissioners erred in the principle on which they made their'determination.

The order appealed from should be reversed and the report confirmed, with ten dollars costs and disbursements. The appeal denying appellant’s application to resettle order should be dismissed, with ten dollars costs and disbursements.

Present — Brown, P. J., Cullen and Dykman, JJ.

Order reversed, with ten dollars costs and disbursements. Appeal from order denying motion to resettle order dismissed, with ten dollars costs.


source: Caselaw Access Project

author: Cullen, J.:

license: Public Domain

text:
    John Raven, Respondent, v. William R. Smith, Appellant.

      A recovery on the foreclosure of a mechanic's lien — not a bar to an action on the contract — evidence that work was stopped — effect on appeal of a failure to take exceptions.

    The fact that a recovery was had, in an action brought to foreclose a mechanic’s lien, for work actually performed, does not bar a recovery therefor in an action brought to recover the contract price of work performed and damages for the-breach of such contract.
    In an action brought to recover damages for the breach of a contract, the report-made to the plaintiff by his workmen that they had been stopped in the performance of the contract by the defendant, accompanied by proof that th& defendant did stop the performance of work under the contract, is competent evidence upon the trial to show the reason why the plaintiff ceased the further performance of the contract.

      Semble, that upon an appeal from an order denying a motion made for a new trial, of an action, an appellate court will disregard the failure of the party against whom the judgment was rendered to take exceptions to portions of the charge of the trial court, if it is satisfied that injustice has been done.
    Appeal by the defendant, "William R. Smith, from a judgment-of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 9th day of October, 1893, upon the verdict of a jury rendered after a trial at theWestchester Circuit, and also from an order made on the 5th day of October, 1893, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

      James R. Bowen, for the appellant.

      Frederick W. Clark and A. J. Burns, for the respondent.
   Cullen, J.:

This is an appeal from a judgment entered on the verdict of a-jury at a Circuit and an order denying defendant’s motion for a new trial. The action is to recover for the breach of an alleged contract by which the plaintiff was to do certain grading for the defendant,, and the plaintiff claimed both for work done under the contract and for loss of profits on the remaining work on the ground that he was-prevented by the defendant from performing his contract.

The first claim urged by the defendant, that the verdict was-against the weight of evidence, is manifestly unfounded. The plaintiff testified to an agreement with defendant to do the work. The-defendant admitted that he made an agreement upon the subject but testified that it was conditional, that is, he told the plaintiff that he (defendant) was about to make a contract with one Jones for the whole work, and that in case such contract was made plaintiff must look to Jones. This qualification the plaintiff denied. These were the only witnesses who testified to the terms of the agreement, and, under the circumstances, the statement of the plaintiff is far more-probable than that of the defendant.

The claim that the recovery in an action to foreclose a mechanic’s-lien for the work actually performed barred a recovery therefor in this action has been decided by this court adversely to the defendant. (Raven v. Smith, 71 Hun, 197.)

The objections to the questions as to the relation of Jones to the property to be graded were properly sustained. Tbe questions called for mere' conclusions by tbe witnesses. The defendant was permitted to prove that be made a contract with Jones for the performance of tbe work. In fact, tbe whole evidence on this subject would have been irrelevant except for tbe testimony of tbe defendant that plaintiff’s contract was to be subordinate to that of Jones in case one was made. Tbe evidence as to what other work plaintiff bad done for Jones, what receipts be bad given therefor, and the relations of McNamara to Jones was properly excluded as irrelevant.

Tbe report made to plaintiff by bis workmen, that they bad been stopped by tbe defendant, accompanied by proof by plaintiff’s son that the defendant did stop tbe work, was competent to show tbe reason why plaintiff ceased tbe further performance of tbe contract.

If tbe copy of tbe notice given by plaintiff was improperly received in evidence it cannot have harmed tbe defendant, for it sufficiently appeared by other evidence that at tbe time tbe notice was given tbe defendant repudiated any contract with the plaintiff.

The evidence of Fairchild (the engineer) as to the quantity of grading he estimated, was competent. The plaintiff had testified to a contract for grading tbe triangular plot down to the level of its three boundaries, the highroad, the railroad and the pipe line. The estimate or computation of tbe engineer was of the quantity necessary to grade the land down to a higher level than that given by the plaintiff. Of course the defendant was not bound by Fairchild’s plans of grading, but, assuming that the plaintiff was unable to prove tbe quantity of excavation required by the contract as he stated it, certainly it was competent to prove a quantity that must necessarily have been included in his contract, and forego his claim to the remainder. Under tbe testimony of Fairchild the quantity calculated and stated by him must necessarily have been less than that required by tbe contract.

A juror asked tbe court if tbe notice given by tbe defendant tbe next day, that be was going to band tbe contract over to Jones, was binding on the plaintiff. Tbe court answered : “ Not unless be consents, no.” To this answer the defendant excepted. We think that it was correct*. Certainly tbe notice itself could not have bound plaintiff unless he consented, or unless the contract was subject to the qualification testified to by the defendant. If the defendant thought .the answer insufficient ho should have asked the court to charge as to the effect of the notice, on the assumption that the jury found that the contract was qualified. Criticism is made that the court in its charge expressed its opinion on the questions of fact involved, but no exceptions were taken by the defendant as to such expressions. On the appeal from the order denying a new trial, we could disregard the failure to take exceptions if we were satisfied that an injustice had been done, but we cannot say that the verdict was wrong.

The judgment and order denying motion for a new trial appealed from should be affirmed, with costs.

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

Judgment affirmed, with costs.


text:
    Interstate Steamboat Company, Appellant, v. The First National Bank of Syracuse and Others, Respondents.

      Effect, on appeal, of a failure to except below — title to articles to be manufactured — law of a foreign State not applied to a contract — oral agreement — when inadmissible to modify a written instrument.

    Where it appears upon an appeal from a judgment that the appellant upon the trial took no exceptions to the ruling of the court dismissing his complaint, and made no motion for a new trial, the appellate court is without power to review the decision of the trial court in such respect.
    Ordinarily, title to an article to be manufactured does not vest in the vendee until it is finished and delivered, or ready for delivery, and approved by the party for whom it is to be constructed.
    The law of another State will not be applied by the courts of the State of New York to a contract which is to be performed in the latter State.
    Where, under a written instrument, the destruction of a vessel by fire or accident would not have relieved the construction company of its obligation to perform its contract to construct the same, and the loss would have fallen upon such company, an oral agreement, made prior to or at the time of the execution of the written agreement, is not admissible in evidence to modify its effect, although such oral agreement provided that the title to the vessel should be in the person ordering it, and that the destruction of the boat without the fault of the builder would relieve it, and the loss would fall on such other person.
    Appeal by the plaintiff, the Interstate Steamboat Company, from a judgment of the Supreme Court in favor of the defendants, ■entered, in the office of the clerk of the county of Kings on the 31st of October, 1894, upon the decision of the court, rendered at the Kings County Circuit, dismissing the plaintiff’s complaint upon the ■merits.

      H. G. Harris, for the appellant.

      H. B. Closson, for the respondents.
   Cullen, J.:

This is an appeal from a judgment in favor of the defendant entered upon a nonsuit at Circuit.

The Cowles Engineering Company entered into an agreement with the plaintiff for the construction of a steamboat to be delivered .at Brooklyn. The boat was launched unfinished. There were in the yard of the Cowles Company two boilers, a steering wheel and some lumber intended to complete the construction of the steamboat, but not yet placed in her. The defendants were creditors of the Cowles Company and obtained attachments against that company. The sheriff levied on the articles named. The plaintiff brought this action to recover the property and the attaching creditors were substituted as defendants in place of the sheriff.

The plaintiff took no exception to the ruling of the court dismissing the complaint, and no motion was made for a new trial. We are hence without power to review the decision below in this respect. We may say, however, that we see nothing in the contract for the construction of this steamer to take the case out of the rule decided in Andrews v. Durant (11 N. Y. 35), that title does not vest in an article to be manufactured until finished and delivered, or ready for delivery and approved by the party for whom it is to be constructed. Nor can the law of Pennsylvania apply to this case, as the contract was to be performed in this State. (Dyke v. Erie Ry. Co., 45 N. Y. 113; Curtis v. D., L. & W. Co., 74 id. 116.)

The only point properly raised by exception is as to the exclusion of evidence to show an oral agreement between the parties prior to or at the time of the execution of the written agreement, by which title to the property was from the inception of the work to vest in the plaintiff. We think this evidence properly excluded. If admitted it would have altered and modified the effect of the written agreement. By the written agreement tinder the law as we have construed it the destruction of the vessel by fire or accident would not have relieved the construction company from its obligation to perform the contract; the loss would have fallen upon it. Under the oral agreement that the title should be in the plaintiff the destruction of the boat without fault on the part of the builder would relieve it from such obligation and the loss fall on the plaintiff. The evidence was, therefore, incompetent. (Engelhorn v. Reitlinger, 122 N. Y. 76 ; Case v. Phœnix Bridge Co., 134 id. 78.)

There is this further criticism to be made on the evidence excluded — -it is doubtful whether the offer to prove went beyond the question of the title of the vessel itself. The articles in suit had not become any part of the vessel.

The judgment appealed from should be affirmed, with costs.

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

Judgment affirmed, with costs.


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    Ann Matilda Herriot, as Sole Surviving Executrix and Trustee, etc., of Warren Herriot, Deceased, Plaintiff, v. Alanson J. Prime, Defendant.

      Power of sale in a will — when it ends — right of a testator to limit the exweise of powers granted, l>y him.

    The will of a testator contained the following power of sale: “I do hereby give to nay executors and trustees [the plaintiff and the testator’s widow], full and complete power to sell and dispose of my said real estate at such time, in such manner and on such terms as they shall jointly consider beneficial and for the interest of my estate, with full power to convey by deed jointly and not singly, as I might or could do if living.”

      Held, that this power ended upon the death of the testator’s widow, at which time the trust estate to which the power was annexed terminated.
    Section 2642 of the Code of Civil Procedure does not prevent a testator from placing such limitations on the exercise of powers granted by him as he may deem fit. It merely prescribes a rule applicable in the absence of directions by a testator to the contrary.
    Submission of a controvery upon an agreed statement of facts .under the provisions of section 1279 of the Code of Civil Procedure.

      James P. Sanders, for the plaintiff.

      Ralph E. Prime, for the defendant.
   Cullen, J.:

This is a submission of a controversy without action. The question presented is whether the plaintiff, as surviving executor and trustee under the will of Warren Herriot, can convey a good title to lands of which said Herriot died seized.

We think the power of sale has ceased, for two reasons. The power is given in the following terms:

“ I do hereby give to my said executors and trustees (the plaintiff and the testator’s widow Sarah) full and complete power to sell and dispose of my said real estate at such time, in such manner, and on such terms as they shall jointly consider beneficial and for the interest of my said estate, with full power to convey by deed, jointly and not singly, as I might or could do if living,” etc. This power determined upon the death of the widow Sarah, for section 2642 of the Code (a re-enactment of the Revised Statutes) does not prevent a testator from placing such. limitations on the exercise of powers granted by him as he may deem fit, but merely prescribes a rule applicable in the absence of directions by the testator to the contrary. (Hyatt v. Aguero, 24 J. & S. 63; Kissam v. Dierkes, 49 N. Y. 602.)

Secondly, we are of opinion that the trust estate to which the power was annexed terminated on the death of the widow. The codicil upon which the decision of this question rests is drawn with a confusion of expression approximating to genius. The testator directs that in case of the birth to him of a child his will shall remain in full force and virtue until the said child shall arrive at the age of twenty-one years.” If there were no period of time named it might be thought that this direction was to prevent the effect of the birth of such child on Lis will, under section 49, 2 Revised Statutes, p. 65 ; though such a direction was unnecessary, as provision for the child was made by the codicil. But when the direction is that the will shall continue in force till the child is twenty-one, it is plain that the testator does not mean his will but some provision of it. We are inclined to think the testator may have referred to the trust created in the first clause of the will, but this is only conjecture on our part; and to sustain the trust after the decease of the widow, we should have to go further and incorporate a direction to apply the income to the child during its minority. This we cannot do, for the will is barren of any provision in that regard. Therefore, whatever our conjectures may be we must hold that under the terms of the will and codicil the fee of the estate upon the death of the widow immediately vested in the child, subject to be divested by her death before the age of twenty-one.

Judgment for defendant on submitted case, without costs.

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

Judgment on submitted case for defendant, without costs.


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    Eliza Purdy, as Executrix, etc., of Smith Purdy, Deceased, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.

      Negligence — damagesfrom the death of one crossing a, railroad trade — duty ofaperson. about to cross railroad trades where trains pass on parallel trades.

    A person about to cross railroad tracks, knowing that there are two tracks upon which trains pass in opposite directions, is bound if there is a moving- train on the track nearest to him, to await the movement of such train on that track to such distance as will give him a view of the further track, so that he may discover whether any train is approaching thereon. His failure to do so is negligence, and will preclude a. recovery in an action brought by his personal representative to recover damages for his death caused by his being run over by a train on the further track.
    Appeal by tlie plaintiff, Eliza Purdy, as executrix, etc., of Smith Purdy, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Rockland on the 30th day of October, 1894, upon the dismissal of the complaint directed by the court after a trial at the Rockland Circuit, before the court and a jury, and also from an order made on the 27th day of September, 1894, and entered in said clerk’s office, denying the plaintiff’s motion for a new trial made upon the minutes.

      Geo. W. Weiant, for the appellant.

      Ashbel Green and Herbert E. Kinney, for the respondent.
   Cullen, J.:

This is an appeal from a judgment for the defendant entered on a nonsuit at Circuit. The action is to recover damages for causing the death of plaintiffs testator.

The facts attendant the accident are within a very brief compass. The station of the West Shore railroad at Haverstraw lies to the east of the road, which there runs north and south. At the station are three tracks; the easterly track and one nearest to the station is a siding; the next is the north-bound track, and the third and most westerly is the south-bound track. At a distance of 139 feet to the north of the station is the road crossing at which the deceased was struck. The siding to the north of the crossing was occupied by freight cars. Except as obstructed by the cars, the view to the north along the track was clear for over 2,000 feet. The plaintiff and her husband and testator were residents of Haverstraw and familiar with the crossing. On the day of the accident they came from the city to Haverstraw, arriving there about five o’clock in the afternoon. They alighted from the cars at the station and walked north to the road crossing. The train on which they traveled was at this time passing the crossing. They waited for the train to clear the crossing. After the train had passed they started to cross the tracks. When they arrived at the westerly track, or close to it, the deceased was struck by the engine of a south-bound train and received injuries from which he died. The plaintiff testified that before starting to cross any of the tracks they looked to the north and saw no train approaching, the view in this direction being obstructed by the standing freight cars, and that they did not discover the south-bound train until it was upon them. That the view to the north of a person close to the track would be obstructed by the freight cars is unquestionable. It would also be obstructed by the north-bound train till that had passed out of sight. How far that train had passed beyond the crossing when the plaintiff and her husband started to cross the tracks the plaintiff cannot say. The question of the contributory negligence of the deceased presented by this evidence is a narrow one; was the deceased, as a matter of law, on arriving at the north-bound track, bound to await the movement of the'train on that track sufficiently far to the north to give a view of the farther track, so that he might discover whether any train was approaching on that track 1 It is plain that if he had taken this precaution he would have avoided the injury, for when he reached the first of the main tracks the freight cars no longer interfered with his view. This question seems settled by the later decisions of the Court of Appeals adversely to the plaintiff. In Daniels v. Staten Island R. T. Co. (125 N. Y. 407) a person killed under substantially similar circumstances was held guilty of negligence. He knew that there were two railroad tracks upon which trains passed in opposite directions. The passage of the train on the down track obstructed his vision in the direction from which the other train came, until it had passed the crossing and proceeded some distance beyond. The deceased apparently must have proceeded to cross the track immediately after the down train passed the crossing, without looking up the road, because if he had looked after crossing the south track before stepping on the north track, it is, upon the evidence, indisputable that he could have seen the approaching train. It is impossible to escape the conclusion on the evidence that the accident happened in consequence of his thoughtlessness, or at least that it was not attributable to any negligence on the part of the defendant.”

To the same effect are the following cases: Woodard v. N. Y., Lake Erie, etc., R. R. Co. (106 N. Y. 375); Young v. Same (107 id. 500).

We have not overlooked the case of Greany v. Long Island R. R. Co. (101 N. Y. 425), cited by the plaintiff and which doubtless tends to support lrer claim. Rut we look upon that case as, if not overruled, at least much limited by the subsequent decisions cited. The Greany case was decided by a divided court, four to three. The Woodard case was decided by a similar vote, one of the dissenting judges in the Greany case writing the prevailing opinion. Rut in the Young case the dissent was reduced to a single vote, that of the judge who wrote the opinion in the Greany case. We feel bound by the latest decisions of the court.

The judgment appealed from should be affirmed, with costs.

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

Judgment affirmed, with costs.


text:
    Otto Huber, Plaintiff, v. John George Grauer, Defendant.

      Oontraots — a vendor selling after a specified period fixed thereby — delay at the request of the party interested — sealed instrument — parol extension of the time for performance befoi’e breach.

    In an action, brought to recover a deficiency arising upon the sale of lands by the plaintiff, it appeared that the plaintiff took title to certain lots from the defendant in payment of a debt, the defendant agreeing that, at the expiration of a year, he would repurchase the lots at a specified price if the plaintiff in the meantime failed to dispose of the lots at that price. Before the expiration of the contract it was extended by a further agreement, in which the terms of the first contract were extended for another year, so far as they related to the reconveyance of the lots to the defendant by the plaintiff at the stipulated price; and the same privileges were given to the plaintiff that, should he de. ire to sell the lots during the year, he might do so; and should the lots fail to bring the stipulated price, then the defendant promised to make up the deficiency. After the expiration of - the second year the plaintiff sold the lots and thereafter brought an action to recover the deficiency arising on such sale. The complaint alleged that the plaintiff would have sold in time, and before the expiration of the second year, but for the fact that the defendant made several applications to the plaintiff for delay, which were granted.

      Meld, that the plaintiff had two remedies under the contract; at any time during the contract period he could sell the lots and charge the defendant with the deficiency, or he could wait until the expiration of the contract period and compel specific performance, or, in the latter case and in the alternative, he might sue at law for damages, because the defendant had not performed specifically;
    That, as the plaintiff had elected to pursue the first remedy, but had not sold until after the contract period had expired, it was, upon the evidence, a question for the jury to determine whether such delay resulted from the defendant’s request that the plaintiff should forbear to sell;
    That the time for performance under a sealed instrument might, before breach, be extended by parol.
    That, if such delay resulted from the defendant’s request therefor the plaintiff was entitled to recover in the present form of action;
    Motion by tlie plaintiff, Otto Huber, for a new trial on a case containing exceptions, ordered to be beard at the General Term in the first instance upon tlie dismissal of the complaint directed by the court after a trial before the court and a jury at the Kings County Circuit on the 16th day of October, 1894.

      Louis Marshall, for the plaintiff.

      M. L. Towns, for the defendant.
   Cullen, J.:

This is an appeal from a nonsuit at Circuit, the exceptions being directed to be heard in the first instance at the General Term.

The plaintiff sold defendant an interest in an ice company and took in part payment a number of lots of land. By contemporaneous agreement the defendant agreed that at the expiration of a year he would repurchase the lots at a specified price, if the plaintiff meanwhile failed to dispose of them at that price. Shortly before the expiration of this contract it was extended by a further contract as follows : “ In consideration of the sum of one dollar to each in hand paid by the undersigned to each other, the receipt whereof is hereby acknowledged, it is hereby agreed that the terms, conditions and stipulations contained in the within agreement are here extended for the space of one year from date, so far as the same relate to reconveying the lots therein referred to and located at East New York, now the twenty-sixth ward of the city of Brooklyn, to the. said John George Grauer (the party of the second part) mentioned in said agreement, by said Otto Huber (the party of the first part) mentioned in said agreement, at the’stipulated price of ($850) eight hundred and fifty dollars each lot; the same privileges are given the said Otto Huber, that if he shall desire to sell the aforesaid (18) lots, or any of them, within one year from this date, and shall proceed to do so, and said lots do not bring the sum of ($850) eight hundred and fifty dollars each, that the said John George Grauer will make up and supply and pay over to the said Otto Huber all sums of money which shall constitute the deficiency ; that is to say, in case the said Otto Huber shall not receive in full the sum of $850 for each and every of said lots which he may sell within one year from date hereof, the said John George Grauer agrees to pay to said Otto Huber the difference between the sum or sums realized and the sum of $850 on each lot, together with five per cent interest on the said stipulated price of the value of said (18) eighteen lots.” As this second agreement was about to mature several applications were made by the defendant for its extension. No extension for a definite period was agreed upon, but delay was given him. The defendant failed to take the lots, and on January 16, 1893, the lots were sold at auction, realizing a sum far below the stipulated price. This action is brought to recover the deficiency arising on the sale, and the complaint alleged that the delay in the sale was due to the application by the defendant for time.

That the time for the performance of the contract though under seal could before breach be extended by parol is clear. (Dodge v. Crandall, 30 N. Y. 294; Homer v. Guardiane Ins. Co., 67 id. 478.)

It is also clear that if the sale was postponed or delayed at the request of the defendant he could not complain that the lots were not sold within the prescribed time. (Homer v. Guardiane Ins. Co., supra.)

The dismissal of the complaint is not seen to have proceeded on a denial of either of these propositions. The trial court appears to have based its rulings on the ground that the sale had not been delayed at the application of the defendant; that such application related only to defendant’s agreement to repurchase.

The contract in suit is most peculiar. The defendant was bound to repurchase the lots at the expiration of the year at the price named. The plaintiff, however, was not bound to wait any period to realize his money, for he could sell the lots at any time and the defendant would be at once liable for the deficiency. But there is no provision in the contract authorizing a sale by the plaintiff on the defendant’s default in failing to purchase the lots, nor could such a sale be then had, for when defendant would be first in default the time in which the plaintiff might sell under the contract would have expired. Under the contract the plaintiff had two methods in which to realize his money. At any time during the contract period he could sell and charge defendant with the deficiency, or lie could await the expiration of the contract period and compel the defendant to specifically perform his agreement to purchase by a suit in equity, or sue at law for damages for his failure to so purchase. The proofs show that the plaintiff’s attorney did tender a deed and that the defendant failed to pay for the lots. Had the complaint alleged this breach the plaintiff would undoubtedly have made out his case, but the suit was brought solely on the covenant to pay the deficiency on a sale. We must, therefore, deténnine whether there was any evidence to show that the sale itself was deferred on the defendant’s application. If there were no request by defendant for delay or an extension of the agreement till after the defendant’s default there would be no estoppel against him as to time of sale, because at sucli time the plaintiff’s right to a sale had ceased and he could in no wise be prejudiced by the delay. But there is evidence to show that applications for extensions and forbearance were made prior to that time. The plaintiff testifies that before the expiration of the contract, and while it was within his power to make a sale, the defendant applied for an extension of the agreement for a year, -which application was refused. That the defendant then said: Well, if I can’t raise the money on the day of the sale — on the day of the expiration of the contract, will you force it upon me to be ready? ” The plaintiff answered, “Well, if-it is necessary I would not stand upon a couple of weeks,” to which the defendant replied that he thought he could raise the money. The plaintiff also testified to having similar conversations subsequent to this till he finally refused further delay and notified defendant of the sale of the lots at auction. The witness Obernier, the plaintiff’s lawyer, seems to have labored under a misconstruction of the plaintiff’s rights under the contract, and to have thought that he could sell the lots after defendant’s default. The fact that he had this belief, and that he tendered a deed to defendant, may tend to disprove the claim that the sales were postponed at defendant’s request. Still Obernier testifies that at the times defendant applied for extensions or delays the threat of a sale was made and defendant asked for further time. We think that this evidence required the submission to the jury of the question whether the plaintiff was induced to refrain from making a sale during the contract time by the request of the defendant, with the instruction that if they so found it would justify a verdict for the plaintiff.

The exceptions should be sustained and a new trial ordered, costs to abide event.

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

Exceptions sustained and new trial ordered.


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    In the Matter of the Petition of The Brooklyn Elevated Railroad Company, Appellant, Relative to Acquiring Title to Real Estate or a Right of Way on Myrtle Avenue in the City of Brooklyn and County of Kings. John Flynn,  Owner of Parcel No. 26, Respondent.

      Condemnation proceedings—property described in the petition — when considered as separate lots and not as one entire lot.

    The fact that in the petition in condemnation proceedings three lots are incorporated in a single description does not make such lots a single entity or unit, if the fact be otherwise.
    Whether the lots constitute a single plot or not depends upon the improvements erected upon them and the nature and Character of their use, and it may depend in some cases on the ordinary use to which land in the vicinity of such lots is put.
    Where there are three independent structures on the property, each lot being used and held by itself, each is to be considered as a separate plot.
    Appeal by the Brooklyn Elevated Railroad Company from that portion of 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 24th day of December, 1894, which confirms the report of the commissioners of appraisal respecting parcel No. 26 and grants to the owner of said parcel costs and allowances.

      Frederick P. Delafield, for the appellant.

      Stephen M. Hoye and Francis Russell Whitney, for the respondent.
   Cullen, J.:

This is an appeal from an order confirming the award of commissioners of appraisal for damages caused by the construction and operation of an elevated railroad.

But a single point is raised on this appeal. The property of the respondent consisted of three separate and distinct but adjoining lots with stores and dwelling houses thereon fronting on Myrtle avenue, Brooklyn. The commissioners found that the value of two of these stores had been enhanced by the construction of the road, but that the value of the third had been depreciated, and awarded therefor $500. The petitioner in its petition described the three pieces as a single parcel with a single description. The appellant insists that the property should have been treated as a whole, and that the depreciation of the one piece should have been set off against the advantage to the others.

We think not. The fact that in the petition three lots were incorporated in a single description did not make these lots a single entity or unit if the fact’ were otherwise. Whether they constituted a single plot or not depended on the improvements erected upon them and the nature and character of their use, and also it might depend in some cases on the ordinary use to which land in the vicinity was put. Here the evidence shows that there were three independent structures on the property, each lot used and held by itself. Each was, therefore, entitled to be considered as a separate plot.

The case of' N. Y., West Shore, etc., R. R. Co. v. Le Fevre (27 Hun, 537) does not support the appellant’s claim. That was the case of a dwelling with a tract of ten acres of land surrounding it, the tract divided by a highway. The court held that the case differed from that of separate city lots used independently of each other. In the case of Newman v. M. E. R. R. Co. (118 N. Y. 618) it was held that in estimating the damage done to an abutting house the jury should take into consideration any benefit to the house arising from the construction of the road. The case did not involve the right to set off benefit to one piece of property against damage to another piece. An examination of the opinion of Judge Brown shows that the decision did not proceed on any principle of set-off, but on the ground that the injury to adjacent property not physically taken could only be the net difference between benefit and injury, and this was so held in the case of Bohm v. M. E. R. R. Co. (129 N. Y. 576), where the opinion of Judge Brown is reviewed .and approved.

The case of Rich v. N. Y. E. R. R. Co. (46 N. Y. St. Repr. 673), so far as relates to the General Term decision, is based on the ground that the plaintiff voluntarily by his complaint, treated his lots as one and an integral piece of property, and alleged but a single cause of “ action therefor. Here the consolidation of the lots was made by the petitioner, not by the owner. Nor do we see any method by which the petitioner could be relieved therefrom except by the course taken in this case, i. e., by proof on the hearing that there were three separate parcels. It is not necessary to discuss the correctness of the decision in the Rich case as it is plainly to be distinguished from that now before us.

The order and award appealed from should be affirmed, with costs and disbursements.

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

Order affirmed, with costs and disbursements.


author: Van Brunt, P. J.:

text:
    Jacob S. Rogers and Another, Plaintiffs, v. The New York and Texas Land Company (Limited) and Others, Defendants.

      Interlocutory judgment — questions reserved until after the coming in of a refereé s report.

    It is competent for a court, by its interlocutory judgment, to direct the referee named therein to take and state an account, and to ascertain the amount of the expenses of the administration of a certain trust, and to report the same to the court, reserving the question as to whether certain expenses claimed as a charge should be allowed or not until the coming in of the referee’s report, when it may determine by its final judgment whether or not such expenses should be allowed.
    Motion by the defendants, The New York and Texas Land Company (Limited) and others, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance upon the decision of the court rendered after a trial at the New York Special Term on the 18th day of October, 1894.

      T. G. Shearman and Noah Davis, for motion.

      Julien T. Davies, opposed.
   Van Brunt, P. J.:

We do not see but that the opinions heretofore rendered in this case in the Court of Appeals, and the opinion of the justice who tried the case in the court below, dispose of all the questions which are involved in this motion.

It is true that it is claimed upon the part of the defendants that the case now before the court is an entirely different one from that which received the attention of the Court of Appeals. But upon an examination of this case it seems to us that all the material facts are substantially the same. There may be differences in the condition of the proof, but none which affect the question as to the right of the plaintiffs to maintain this action, as is shown by the opinion of the learned justice who tried the case in the court below.

It is urged that the court erred in the terms of the interlocutory judgment, because, although it provides for the taking of an account of the expenses of administering the trust, it does not decide whether any of these expenses should be allowed or not; and that this want of decision leaves a material fact undisposed of, and hence the interlocutory judgment is incomplete and should be set aside. We do not see but what the court has the power to reserve the question as to whether certain expenses which are claimed as a charge shall be allowed or not until the coming in of the referee’s report, and the court be thus fully informed in regard to all the facts and circumstances of such accounts. And that was all that was done in this case. The court seems to have reserved nothing more than is ordinarily the practice in interlocutory judgments, to reserve the question of costs until the coming in of the referee’s report and then to provide for the same in the final judgment. So here, the referee is directed to take and state the account, and ascertain the amount of the expenses'of administering the trust and report the same to the court; and then the court can determine by its final judgment as to'whether or not such expenses should be allowed and the defendant credited therewith.

Upon an examination of the various exceptions taken to the admission and exclusion of evidence, we do not see that any of them are of such gravity as to call for a setting aside of this judgment.'

The motion should, therefore, be denied, with costs.

Follett and Parker, JJ., concurred.

Motion for new trial denied, with costs.


text:
    Martha Haines and Another, Respondents, v. William A. Patterson and Others, Respondents; James M. Gano, as Executor, etc., and Others, Appellants. Elizabeth Patterson v. Jane W. McCunn and Others. James M. Gano, as Executor, etc., v. Thomas McCunn, Executor, etc., and Others.

      Amendment of a judgment — denied on the ground of laches.

    Where parties delay for some fifteen years, before mailing any attempt to collect their costs, their motion to amend an interlocutory judgment in an action in which they are not parties, for the purpose of effecting such collection, will be denied on the ground of laches.

    Appeal by the defendant, James M. Gano, as executor, etc., and by Shipman, Larocque & Olioate, as successors in interest of his attorneys in two certain actions, entitled Cano v. McCunn and Patterson v. McCunn, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of April, 1895, nunc pro tunc as of the 8th day of March, 1895, denying the appellants’ motion for an order amending an interlocutory judgment by awarding costs and allowances to the appellants, and also from an order made at the New York Special Term and entered in said clerk’s office outlie Sth day of March, 1895, denying the appellants’ motion for an order allowing execution to issue to collect the amount of certain costs and allowances.

      A. Davidson, for the appellants.

      Christopher Fine and Chas. Fox, for the respondents.
   Per Curiam :

The parties having delayed some fifteen years before making any attempt to collect their costs, we think it is too late now for them to move to amend a decree in an action in which they are not parties for the purpose of effecting such collection.

The orders appealed from should be affirmed, with ten dollars costs and disbursements.

Present — Van Brunt, P. J., O’Brien and Parker, JJ.

Orders affirmed, with ten dollars costs and disbursements.


author: Per Curiam:

text:
    Cornelius N. Bliss and Others, Respondents, v. Lewis M. Hornthal, Appellant, Impleaded with Others. Clement A. Auffmordt and Others, Respondents, v. Lewis M. Hornthal, Appellant, Impleaded with Others. Thomas A. Whicher and Others, Respondents, v. Lewis M. Hornthal, Appellant, Impleaded with Others.

      Open commission 'issued when there is a refusal to admit depositions taken under a Wee commission in another action.

    On appeal from an order granting a motion made by a plaintiff for an open commission, it appeared that an open commission was issued by consent in another' action between another plaintiff and the same defendant, involving practically the same issues, upon the execution of which the defendant was represented by counsel, and had an opportunity of cross-examining the witness, and that the defendant by permitting the testimony, already taken in such other action, to be used upon the'trial of the action in question, subject to all proper objections, could avoid a commission either open or upon interrogatories.

      Reid, that the defendant (by refusing to consent to the reading of such testimony so taken) had no ground of complaint against an order granting the plaintiffs motion for an open commission, there being no claim made that the former examination was not proper and fair and exhaustive, and no good reason being given why the testimony so taken could not be used.
    Appeal by the defendant, Lewis M. Horntiial, from three several orders of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of March, 1895, granting the several plaintiffs’ motions for the issuance of open commissions unless the appellant stipulate that certain depositions taken in an action brought by another plaintiff against the appellant with the exhibits thereto attached or therein referred to might be read in evidence on behalf of the plaintiffs in the present actions upon the trial thereof, except that the deposition of no one of such witnesses who might be personally present at the trial of the action should be read.

      John V. Bouvier, Jr., for the appellant.

      Charles E. Hughes, for the respondents.
   Per Curiam:

The strongest argument against an opien commission is, that with the names of the witnesses and the knowledge to be derived from the open commission taken in the case of Bailey against this defendant, now on file, plaintiffs are in a position to formulate the necessary interrogatories. If, however, the labor of framing numberless interrogatories can be avoided, it should be. The defendant by permitting the testimony already taken to be used upon the trial, subject to all proper objections, can avoid a commission either open or upon interrogatories. Without passing upon the question whether in such a case as this an open commission should be issued, we think, upon the fact appearing that one has been issued by consent in a case between another plaintiff and this defendant, involving practically the same issues, upon which defendant was represented by counsel and had the opportunity of cross-examining the witnesses, that unless he consents to the reading of the testimony so taken he lias no just subject of complaint. There is no claim made that the former examination was not proper and fair and exhaustive, nor is any good reason given why the testimony so taken could not be used.

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

Present — Van Brunt, P. J., O’Brien and Follett, JJ.

Orders affirmed, with ten dollars costs in each case and disbursements.


author: O’Brien, J.:

text:
    David Thomson, as Trustee of the Estate of Benjamin Lord, Deceased, Plaintiff, Impleaded with Mary Hanson, Appellant, v. Emma C. Hill and Others, Appellants, Impleaded with Others; Gilbert M. Husted, Respondent, Impleaded with Others.

      Will — vesting of estates favored — an estate granted, not out down by subsequent provisions— the whole will to be considered.

    The rule in the construction of .wills is to favor the vesting of estates, and where all other things are equal such a construction will be adopted as will coincide with this rule.
    In order to determine the intent of a testator the will must be considered as a whole, and not simply isolated portions or sentences thereof.
    Courts refuse to' cut down an estate, already granted absolutely or in fee, when the supposed terms of limitation are found in some subsequent portion of the will and are not in themselves clear, unmistakable and certain.

      The will of Benjamin Lord, who died in 1851, fixed the time for the distribution of his residuary estate as of the death of Sarah Louisa Reed, which occurred in 1886. The corpus of the estate was not vested in Lord’s executors, who were only given a power of sale of the real estate for the purposes of distribution and division. The residuary estate was directed by the testator to “be equally divided among my brothers and sisters and Lavinia Knapp, wife of the said Caleb Knapp, in the same manner as if the said Lavinia were my own sister and I had died intestate; and in case either of my brothers or sisters or the said Lavinia Knapp shall then be dead, leaving surviving any descendant or descendants, that then and in such case such descendant or descendants shall take the share or portion which would otherwise have belonged to such parent, the share of said Lavinia Knapp being subject to the life interest of the said Caleb Knapp therein.” Then followed this provision: “ The income alone of the said share of Lavinia Knapp shall be paid to her said husband during his ' natural life, and after his death to the said Lavinia Knapp, and after her death her share to be divided among her heirs.” It appeared that Lavinia Knapp died in 1868, without heirs, and that her husband died in 1851. In an action brought to construe the will it was

      Held, that the share of Lavinia Knapp vested at the death of the testator;
    That her share was an absolute one, and in view of the direction in the will, that Lavinia Knapp should share in the testator’s estate as if she were his own sister and he had died intestate, it was not cut down to a life estate by the subsequent clause providing that the income alone should be paid to her husband, and after his death to her, and providing that thereafter the share should be divided among her heirs;
    That her share was devisable in the same manner as if it had been an estate in possession, and that, therefore, her devisee took a good title to it under her will.
    Appeal by tlie plaintiff Mary Hanson and tlie defendants Hattie E. Beardslee, Emma C. Hill and others, from so much of a judgment of tlie Supreme Court, entered in the office of the cleric of the county of New York on the lttli day of September, 1894, upon the decision of the court, rendered after a trial at the New York Special Term construing the will of Benjamin Lord, as adjudged that by it the testator created a trust empowering the trustees to sell and convey the corpus of his real estate and personal property into money and divide and distribute the proceeds among his brothers and sisters and Lavinia Knapp and the descendants,, heirs, legatees and devisees of those of tlie beneficiaries who died subsequently to the death of the testator, and from so much of said judgment as adjudged that tlie defendant Gilbert M. Husted was entitled to the part or portion of said estate devised to the said Lavinia- Knapp, to wit, one-eleventh part or share of said estate,. and also from that portion of said judgment which adjudged that, the defendant Gilbert M. Husted recover his costs in the action out of the testator’s estate.

      Noah Tebbetts, for appellants Emma C. Hill and others.

      Louis'A. Noble, for appellant Mary Hanson.

      Henry A. Prince, for appellants Hattie E. Beardslee and others.

      Jacob F. Miller and A. E. Wooodruff for respondent Gilbert M. Husted.
   O’Brien, J.:

This action was brought to obtain a construction of the will of Benjamin Lord, who died in 1851. Of those mentioned in the will who survived him, Caleb Knapp died in 1851, Lavinia Knapp died in 1863, Mary Van Vegliten died in 1875 and Sarah Louisa Need died in 1886. The testator having alienated the property mentioned in the third clause of the will, and the trust mentioned in the second clause having determined, there is left for construction the fourth clause, which reads as follows:

“ Fourth. Upon the death of the said Sarah Louisa Need it is my will that the whole of the rest, residue and remainder of my estate, both real and personal, be equally divided among the same persons and in the same manner as directed in the next preceding article of this my will.”

That article is as follows:

“ Third. Upon the death of Mary Van Veghten aforesaid it is my will that my store, number one hundred and forty-seven (147) Cedar street, be sold, and the proceeds thereof and arising therefrom be equally divided among my brothers and sisters, and Lavinia Knapp, wife of the said Caleb Knapp, in the same manner as if the said Lavinia were my own sister, and I had died intestate, and in case either of my brothers or sisters, or the said Lavinia Knapp, shall then be dead, leaving surviving any descendant or descendants, that then and in such case such descendant or descendants shall take the share or portion which would otherwise have belonged to such parent,'the share of said Lavinia Knapp being subject to the life interest of the said Caleb Knapp therein. The income alone of the said share of Lavinia Knapp shall be paid to her said husband during his natural life, and after his death to the said Lavinia Knapp, and after her death her share to be divided among her heirs.”

The testator having parted with the Cedar street property during his lifetime, and the other clauses of the will having relation only to income, it is conceded that the distribution of the entire corpus of the estate, and the interest which Lavinia Knapp took therein, which is the sole question presented for our determination on this appeal, are controlled by the construction to be given to the clauses or articles quoted.

At the outset it is important to determine when the vesting occurred. On the one hand it is insisted that it was on the death of the testator, and on the other as strenuously urged that it was postponed until the death of Sarah Louisa Need, which was the time fixed for distribution. Heading the other clauses of the will, and keeping in view that the corpus was not in terms given to the executors — who were only given the power to sell any portion of the real estate “ in order to distribute and divide the same,” thus rebutting the inference that the corpus was vested in the executors — we think that the vesting occurred upon the death of the testator, and that the interests of the various persons are to be determined as of that date. As said by the presiding justice of this court in the case of Jaudon v. Hayes (19 Hun, 453, 455): It is undoubtedly the rule in the construction of wills to favor the vesting of estates, and that where all other things are equal, such a construction will be adopted as will coincide with this rule.” Although the distribution was postponed until the death of Sarah Louisa Heed, and thus the right to possession and enjoyment was likewise postponed until that time, this in no way militates against the force of the rule which in all cases will incline the court, other things being equal, to adopt a construction favoring a vesting rather than a suspension of a gift or devise.

Assuming that the vesting took place at the death of the testator, the question remains as to what interest, if any, Lavinia Knapp then took in the corpus of the estate. Did the testator intend that-she should have only a life interest, or a share absolutely ? If the former, then the provision would be void, because he had already created one life estate therein for Sarah Louisa Need, and a second for Caleb Knapp; and if the view urged by the appellants is sound, that there was a third life estate for Lavinia Knapp, with remainder thereon to her heirs, it would be void because in contravention of the statute. "Were this view adopted, she, for the reason stated, took no interest in the Corpus of the estate, even though the vesting took place at the death of the testator.

The contention that Lavinia Knapp took only a life estate is based upon the last sentence of the third clause of the will, which reads: “ The income alone of the said share of Lavinia Knapp shall be paid to her said husband during his natural life, and after his death to the said Lavinia Knapp, and after her death her share to be divided among her heirs.” If this language stood alone and was expressly applicable to the corpus, there would be much force in the argument. In the construction of a will, however, it is not proper to take isolated portions or sentences, but the will as a whole must be read with a view to determine the intent of the testator. As thus read, in terms as expressive as language can make it, he placed Lavinia Knapp in an equally favorable position with his brothers and sisters, and were it not for the sentence last quoted, the other portions of the third clause of the will, which should be read as though incorporated in the fourth clause, would seem to provide that upon the death of Sarah Louisa Heed the property should be equally divided among my brothers and sisters, and Lavinia Knapp, wife of the said Caleb Knapp, in the same manner as if the said Lavinia were my own sister, and I had died intestate, and in case either of my brothers or sisters, or the said Lavinia Knapp, shall then be dead, leaving surviving any descendant or descendants, that then and in such case such descendant or descendants shall take the share or portion which would otherwise have belonged to such parent, the share of said Lavinia Knapp being subject to the life interest of the said Caleb Knapp therein.”

With language so expressive, we think it would be doing violence to the declared wishes of the testator to hold that the absolute interest which was thus given to Lavinia Knapp, subject to the life interest of her husband, Caleb Knapp, and subject likewise to be divested had she left descendants, which it is conceded she did not, is by the last sentence of the third clause above quoted to be cut down to a life interest, and thus prevent her from obtaining an equal interest in his estate with his brothers and sisters in the same manner as if she were “his own sister and he had died intestate.” The rule to be applied where a fixed interest has been given, and subsequent language in the will is resorted' to for the purpose of cutting such interest down, has been well expressed by Judge Peckham in the late case of Washbon v. Cope (144 N. Y. 287, 297), as follows: “ We are confronted in the first place by the well-settled rule that courts refuse to cut down an estate already granted in fee or absolutely when the supposed terms of limitation are to be found in some subsequent portion of the will, and are not in themselves clear, unmistakable and certain so that there can be no doubt of the meaning and intention of the testator.” Applying this rule, we think that the provision in the will that Mrs. Knapp should share in the estate of the testator the same as though “ she were his own sister and he had died intestate,” is not to be destroyed by language subsequently used which it is not shown was intended by the testator to qualify or- destroy the absolute terms in which the share or interest was given. As said in Jarman on Wills (Randolph & Talcott’s ed., vol. 2, p. 470): “It seems that where the testator first gives the residue in terms which would, beyond all question, confer a vested interest, the' addition of equivocal expressions of a contrary tendency will not suspend the vesting.” So it may be said, with respect to the character of the interest which one takes, as to whether it is a life or absolute interest, where the language is clear and expressive of an intention to confer such absolute interest in terms which, beyond question, would so confer it, the estate thus created is not to be cut down or destroyed by the addition of equivocal expressions in another portion of the will having a contrary tendency. Caleb Knapp having died, therefore, before the time fixed for distribution, Lavinia Knapp took an absolute vested interest in Benjamin Lord’s estate, which was “ descendible, devisable and alienable in the same manner as if it had been an estate in possession,” and she having left no descendants, and it being conceded that she transferred the same by will to Gilbert M. Husted, the judgment in awarding the one-eleventh to him was right.

Some exception has been taken to the finding of fact that “ the descendants, heirs and successors of the various parties in interest are as stated in allegation sixth of the complaint,” upon the ground that the same is erroneous and improper. And a similar criticism is indulged in that the provision in the decision and judgment, that interest vested in the descendants, heirs, legatees and devisees of those of the beneficiaries who died subsequently to the death of the testator,” is also erroneous because the claims of the classes mentioned are exclusive and conflicting. "While these criticisms may be justified, no injury has thereby been done appellants. They are immaterial and do not destroy the force and effect of the conclusion reached by the judge at Special Term upon the main question presented for his consideration, and again raised upon this appeal, as to what share, if any, Lavinia Knapp took in the estate of Benjamin Lord, deceased, and which, under her will, was transferred to Gilbert M. Husted. Equally without force is the error claimed in the awarding of costs to the latter; we think it was entirely within the discretion of the court below, with the exercise of which, upon the facts shown, we should not interfere.

Judgment accordingly affirmed, with costs.

Van Brunt, P. J., and Follett, J., concurred.

Judgment affirmed, with costs.


author: Parker, J.:

text:
    Alfred S. Heidelbach, as the Survivor, etc., of the Firm of Heidelbach, Ickelheimer & Co., Respondent, v. The National Park Bank of New York, Appellant.

      Misappropriation of money held in a fiduciary capacity — tracing the proceeds deposited in a bank — a depositor presumed to have draion his own rather than another’s money — set-off by a bank against its depositor — election of remedies.

      A. person having power to sell and deliver merchandise to a purchaser in good faith, may resort to the usual agencies for realizing the purchase money, and when such agencies advance money in good faith and in the usual course of dealing, they are entitled to the same protection as a purchaser of the merchandise. If, however, any such agency has not parted with the money or changed its position by reason of the transaction, the real owner may invoke the rule of equity, that where a person holding money in a fiduciary capacity misuses or misappropriates it, the real owner can follow it into the hands of the agency so long as lie can identify it, and until it comes into the possession of one who, in good faith, parted with value for it.

      Where a party seeks to trace the proceeds of property after it has been deposited in a bank with the individual money of the depositor, it is sufficient, for the purposes of identification, and to establish the character of the proceeds as trust money, to trace the proceeds into the hank, and to show that they were there at the time notice was given of the true owner’s rights.
    Where a person holding money in a fiduciary capacity pays it into his account at his bankers, and mixes it with his own money, and afterwards draws out some of the money so on deposit by checks, generally, and in the ordinary manner, the drawer of the checks must be deemed to have drawn out his own in preference to the trust money. The rule attributing the first drawing out to the first payment in does not apply to such a case.
    A bank cannot set off as against the balance of a depositor in its hands an unmatured claim held by it against such depositor, where the amount on deposit is held by the depositor in a fiduciary capacity, though deposited in his individual name.
    In the absence of a contract to that effect between a depositor and the bank, the latter has not the right to retain the balance of a customer’s deposit to pay or apply upon the indebtedness of a customer to the hank not yet matured.
    Where there are two absolutely inconsistent remedies to which a party is entitled he is not at liberty to enforce both, and the election of one precludes a resort to the other.
    An election once made is determined forever, and it may be determined by any decisive act made with full knowledge of all the facts, and the bringing of an action to enforce one of the remedies sufficiently evidences such election; but if a person has two or more consistent, instead of two or more inconsistent remedies, for the recovery of the same debt, he may resort to all, although he can have but one satisfaction.
    Appeal by tbe defendant, Tbe National Park Bank of New York, from a judgment of tbe Supreme Court in favor of the plaintiff, entered in tbe office of tbe clerk of tbe county of New York on tbe 20th day of April, 1893, upon tbe decision of the court rendered after a trial at the New York Special Term.
    The plaintiff’s firm on tbe 21st day of July, 1887, opened a credit of £10,000 sterling with C. J. Hambro & Sou, who were their correspondent bank in London, in favor of E. S. Wheeler, under bis firm name of E. S. Wheeler & Co., tbe credit to be used for tbe purchase of merchandise in Europe. Thereafter, under said credit, Wheeler purchased in England, and shipped to tbe Hall & Willis Hardware Company at Kansas City, 600 boxes of tin plate, for which said C. J. Hambro & Son paid, under the authority of said letter of credit, the sum of £815, 8s. sterling, and took the bill of lading and consular invoice of tlie merchandise so purchased as evidence of title thereto. The bill of lading and consular invoice were, pursuant to the terms of credit, duly forwarded to the plaintiff’s firm, into whose possession they came about August 27, 1887, and in the due course of business plaintiff’s firm paid for the 600 boxes of tin plates.
    By virtue of the terms of the credit of £10,000 sterling, and the transaction, to which we have referred, had in pursuance thereof, the plaintiff’s firm became the owners of the tin plates on or prior to the date last named. After the plaintiff’s firm came into the possession of the bill of lading and invoice, and on August 27, 1887, they intrusted them, together with the merchandise represented thereby, to E. S. Wheeler & Co., upon the terms and conditions expressed in. a contract or trust receipt, of which the following is a copy:
    “New York, August 2ftth, 1887.
    Messrs. Heidelbaoh, Ickelheimbr & Co.:
    “ Gents.— We acknowledge the receipt from you of invoice and bill of lading of the following goods, viz., 600 boxes tin plates, equivalent of eight hundred and fifteen pounds eight shillings sterling, shipped by E. S. Wheeler & Go. on board' the Douro at Liverpool (and the receipt by us of all the goods mentioned in said bill of lading), and we hereby agree to hold the said goods in trust for you as your property until the proceeds thereof are actually turned over to you, such goods being subject .to your order and subject to your rights as owners thereof. The delivery to us of the said bill of lading shall not operate as a waiver of your ownership of the goods therein described, nor a waiver of the due performance of the agreement in the receipt signed by us for your letter of credit by cable, dated July 21, ’87, or any other letter of credit under which said goods may have been purchased.
    “ And we also agree to keep such goods covered by insurance against loss or damage by fire, by policies made payable to you in case of loss or damage, and to deliver such policies to you, and to keep the same renewed and in force. And for value received, we further agree that you may at any time enter any place where the said goods are stored, and without process of law take possession of them and store them in your name at some other place, without any claim of us for trespass or damage for so doing. '’Without detriment to or impairment of your claim and rights to the goods themselves, such claim and rights shall also attach to the proceeds thereof, which shall, to all intents and purposes, be your absolute property until full satisfaction by payment shall have actually been made to you under the agreement of receipt of said letter of credit.
    “Yours respectfully,
    “E. S. WHEELER & CO.”
    On the same day Wheeler, under his firm name, drew his sight draft upon the Hall & Willis Hardware Company of Kansas City, to whom he had contracted to sell the 600 boxes of tin plates for the purchase price thereof, being the sum of $3,974.46. This draft he deposited at once in defendant’s bank with the invoice and bill of lading for the tin plates attached thereto, and the defendant credited Wheeler’s account with a sum equal to the face value of the draft less $4.56 deducted for discount.
    August thirtieth, following, the Hall & Willis Hardware Company paid the amount of said draft to the Armour Brothers’ Banking Company, defendant’s agents for collection at Kansas City.
    Three days later defendant received from its Kansas City correspondent a draft on the Mechanics’ National Bank of the city of New York, for the full amount of the draft drawn on the Hall & Willis Hardware Company, and said draft was paid to defendant by the Mechanics’ National Bank September 5, 1887. On the same day Wheeler failed in business, and ever since has been insolvent. Two days later, and on September seventh, plaintiff’s firm notified the defendant that they were the owners of the tin and its proceeds under and by virtue of the trust receipt, and demanded the merchandise or its proceeds, which demand was refused. The daily balances of Wheeler at the National Park Bank, from August twenty-seventh to September second, were in excess of the sum of $3,974.46, which was the face value of the draft in controversy, but on September second Wheeler’s daily balance was reduced to $2,159.98. Eor each of the following days until after the service of the notice and demand by. the plaintiff’s firm upon the defendant, which occurred September seventh, Wheeler’s daily balance at the defendant bank was considerably in excess of the amount of the draft. September 8, 1887, plaintiff’s firm brought suit against "Wheeler, in the Superior Court of the city of New York, to recover a large amount of goods, including the 600 boxes of tin plates which were the subject of the draft in controversy, purchased by Wheeler under the letter of credit issued to him by the plaintiff’s firm.
    The summons was served by publication only, and Wheeler entered no appearance therein, and judgment thereafter resulted in the alternative form, for the goods or damages, and the 600 boxes of the plates were included therein.
    In January, 1888, the plaintiff’s firm presented to the commissioners of the estate of Wheeler in New Haveh a statement of account between them and Wheeler, which included the indebtedness arising from the draft for £815, 8s. sterling, and subsequently plaintiff’s firm received several dividends from such commissioners on account of such indebtedness, aggregating the sum of $665.70. Judgment went against defendant at Special Term for the amount standing to the credit of Wheeler on the books of the National Park Bank on September second, which was $2,159.98, less the sum of $665.70 received by the plaintiff’s firm from the commissioners of the estate of Wheeler.

      Francis C. Barlow, for the appellant.

      John K. Creevey, for the respondent.
   Parker, J.:

Under the terms of the trust receipt the plaintiff’s firm were the owners of the merchandise sold to the Hall & Willis Hardware Company, and were entitled to the proceeds. If the defendant had knowledge of plaintiff’s firm’s ownership when it received the draft from Wheeler and credited his account therewith, plaintiff’s right to recover the full amount would not be questioned.

But it is not pretended that the bank had any notice at the time it discounted the draft, on August twenty-seventh, or at any time thereafter prior to September seventh, that Wheeler was not the owner of the tin plates, or that any trust existed in favor of the plaintiff’s firm. By delivering the bill of lading and invoice to Wheeler the plaintiff’s firm clothed him with the apparent authority of an owner, which was sufficient to protect the bank in dealing with him as such, and had it paid to Wheeler the full amount of the draft at the time of the discount, an action could not have been maintained for the recovery of any part of it. And this is so, because a person having power to sell and deliver merchandise to a good faith purchaser may resort to the usual agencies for realizing the purchase money, and it follows that when such agencies advance money in good faith, and in the usual course of dealing, they are entitled to the same protection as a purchaser of the merchandise.

If, however, such agency has not parted with the moneys, or changed its position by reason of the transaction, the real owner may invoke the rule of equity, that where a person holding money in a fiduciary capacity misuses or misappropriates it, the real owner can follow it so long as he can identify it until it comes into the pjossession of one who in good faith parts with value for it. And where, as in this case, the party seeks to trace the proceeds of the property after it has been deposited in a bank with the individual money of the depositor, it is sufficient for the purposes of identification, and to establish the character of the proceeds as trust money, to trace them into the bank, and to show that they were there at the time notice was given of the plaintiff’s, rights. Upon this view the learned judge at Special Term proceeded, and finding, as he did, that at the close of the business of the second day of September, the credit balance of Wheeler at the defendant bank was $1,809.92, less the amount of the proceeds of the tin draft, he held that the defendant had to that extent made payment to Wheeler on account of the draft, but the balance of the draft, being $2,159.98, with which he had been credited by the defendant, was still in its hands. As Wheeler’s credit balance with the defendant at the close of business on each of the days following, down to and including the seventh of September, was greater than the sum of $2.159.98, the court decided that to such extent the moneys of the plaintiff’s firm must be held to have been in the possession of the defendant at the time the plaintiff’s firm gave notice to it that the moneys belonged to them.

The rule established by the court, in reaching such result, was not to apply the first drawings out to first payments in, as in Clayton’s Case (1 Merivale, 572), but it assumed, on the authority of In re Hallett, Knatchbull’s Case (L. R., 13 Ch. Div. 696), that Wheeler in drawing checks against the blended account of his individual trust funds intended to be honest, and to draw from his own funds first, leaving the trust fund intact. And thus assuming, the conclusion was necessarily reached that he drew only $1,809.92 of the trust funds. The rule in Clayton’s case, which the defendant strongly insists is applicable to this situation, is stated by Sir Wm. Grant at page 608, as follows:

“ In such a case there is no room for any other appropriation than that which arises from the order in which the receipts and payments take place and are carried into the account. Presumably, it is the sum first paid in that is first drawn out. It is the first item on the debit side of the account that is discharged, or reduced by the first item on the credit side The appropriation is made by the very act of setting the two items against each other. Upon that principle all accounts current are settled, and particularly cash accounts When there has been a continuation of dealings, in what way can it be ascertained whether the specific balance due on a given day has, or has not, been discharged, but by examining whether payments to the amount of that balance appear by the account to have been made ? ”

If that rule without modification should have been adopted by the trial court the defendant would have been entitled to judgment. At the opening of business August twenty-fourth Wheeler’s balance was $10,899.39. Adding to this balance the other credit items down to and including the deposit of the draft in question on August twenty-seventh, Wheeler’s aggregate credits -were $58,962.54

The rule in Clayton's case would seem to be that the first debit items in the account must be treated as drawn against this credit aggregate.

But the aggregate of the debit items from the beginning down to the close of business August twenty-ninth, nine days before the notice to the defendant by the plaintiff, was $62,31458, being an excess of debit items over the aggregate of credits of $3,352.04.

We have been favored with an interesting and forceful argument by the appellant intended to make it clear that the rule in Clayton’s case, which antedates that of Knatchbull’s case, and which has prevailed for many years, should apply to tills situation rather than the rule of the latter ease.

(1) Because it is said Knatchbull’s case is not good law. This fact it is claimed is evidenced by a long line of authorities in England, extending over many years, which apply the rule in Clayton’s case to the facts which appear in Knatchbull’s case, as well as by the decisions of a court of co-ordinate jurisdiction in Pennell v. Defell (4 De G., M. & G. 372).

(2) That if it be good law the facts in that case and the one at bar differ so radically as to the point upon which Knatchbull’s case went as to prevent its being considered applicable. In support of the latter proposition attention is called to the opinions iu Knatchbull’s case, in which the rule in Clayton’s case was assumed to be the general rule, the exception being where there are circumstances sufficient to create a presumption that the depositor did not intend his first checks to be paid out of his first deposit. The trustee in that case, in drawing moneys out of the blended account, never reduced his balance below the amount of the trust moneys paid in, and the judges were of the opinion that the trustee should be presumed to have been honest and not dishonest, and, therefore, he could not have had any other intention than that of appropriating his drawings to his own private moneys, so as to leave the trust moneys intact.

Thus, it is contended the presumption which arose in Clayton’s case was rebutted in Knatchbull’s case by the presumption of the honesty of the trustee.

But in the case at bar the presumption in Knatchbull’s case does not arise, because on the. very day that Wheeler deposited the draft he drew out $195.13 of it, and afterwards made further drafts by which still larger sums were drawn out.

Hence it is urged that the facts upon which Knatchbull’s case went were not present, and this case should be remitted to the rule of Clayton’s case.

Were we at liberty to regard this question as an open one in this State, we should feel called upon to'carefully consider the arguments, which we have merely suggested, but it seems to us that the question now presented was passed upon in Importers & Traders’ National Bank v. Peters (123 N. Y. 272). In that case the court said that where a person holding money “ in a fiduciary capacity pays it to his account at his bankers, and mixes it with his own money, and afterwards draws out some by checks generally and in the ordinary manner, the drawer of the checks must be taken to have drawn out his own in preference to -the trust money. The rule attributing the first drawing out to the first payment in does not apply to such a case.”

The conclusion being reached that there was in the hands of the defendant a sum of money belonging to the plaintiffs firm on the seventh day of September, when notice of plaintiff’s right thereto was given to the defendant, it would seem unnecessary to cite authorities in support of the proposition that the defendant cannot set off as against such balance an unmatured claim held by it at that time against Wheeler. Three days later a draft, which had been discounted by the defendant for the benefit of Wheeler, matured and was not paid, and thereafter during the two following months several drafts, upon which Wheeler was liable, matured, but all of this paper was discounted prior to the deposit of the draft which occasions this controversy, and, therefore, it in nowise influenced the defendant to discount the paper which it now seeks to set off.

As to such paper the defendant’s position was neither changed nor affected by the discount of the tin draft, and, therefore, it is not entitled to set off such claims as against money in its hands belonging to the plaintiff’s firm, but credited to Wheeler, even though it should be conceded that it would have had that right as against Wheeler had such balance belonged to him instead of plaintiff’s firm. Nor does the defendant’s claim seem to be well founded that the plaintiff cannot recover such portion of the money as it is found was in the defendant’s possession on the seventh of September, because the defendant has a banker’s lien upon the balance to the credit of Wheeler’s account. It is not claimed that Wheeler by any formal act applied the proceeds of the draft to the payment or security of the unmatured paper, or that there was any agreement or understanding between Wheeler and the defendant to that effect.

Defendant’s claim of lien, therefore, is founded solely on its claim that it had a right to' apply the proceeds remaining in its hands to the credit of Wheeler on the seventh of September as security for the unmatured paper which it had discounted at the instance and request of Wheeler.

This proposition was met and decided adversely to the appellant’s present contention in Jordan v. National Shoe & Leather Bank of the City of New York (74 N. Y. 467). It was there held that, in the absence of a contract between the depositor and the bank, the latter has not a light to retain the balance of a customer’s deposit to pay or apply upon an indebtedness of a customer to the bank not yet matured, and, so far as we have observed, the authority of this case has in nowise been shaken or modified by subsequent decision.

The appellant further insists that the doctrine of election between inconsistent remedies should have prevented a recovery by the plaintiff.

Morris v. Rexford (18 N. Y. 555), Greton v. Smith (33 id. 245), Bank of Beloit v. Beale (34 id. 473) and other cases are cited in support of the proposition that where there are two absolutely inconsistent remedies, the party is not entitled to enforce both, and the election of one precludes a resort to the other.

An election once made is determined forever. (Moller v. Tuska, 87 N. Y. 166.) It may be determined by any decisive act made with full knowledge of all the facts (Fowler v. Bowery Savings Bank, 113 N. Y. 450); and the bringing of an action to enforce one of the remedies sufficiently evidences an election. (Conrow v. Little, 115 N. Y. 387.)

Now, the acts of plaintiff’s firm, which defendant insists establishes satisfactorily and conclusively that between two inconsistent remedies the plaintiff’s firm made an election prior to the commencement of this action, are, briefly, that on September 8, 1887, the day following the giving of the notice to the defendant bank, plaintiff’s firm commenced an action, in the Superior Court of the city of New York, against Wheeler to recover possession of a large amount of property, including the 600 boxes of tin, the proceeds of which are now in dispute.

The appellant says that this action went upon the theory that the tin was the property of Wheeler and in affirmance of, his ownership of the draft, and thus inconsistent with the claim that the proceeds of the tin are the plaintiff’s property, upon which theory this action proceeds. But the appellant seems to us to be inaccurate in this position. An examination of the complaint makes it clear that the action was brought upon the theory that plaintiff’s firm were the owners of the tin and entitled to the possession of it.

Both that action and this alleged "Wheeler’s indebtedness to plaintiff’s firm; that the 600 boxes of tin were the absolute property of plaintiff’s firm, and would so continue until full satisfaction by payment should be actually made under the trust receipt.

The other fact relied upon to establish an election is, that plaintiff’s firm, with full knowledge of the misuse of the draft in question, and before the commencement of this action, presented to the commissioners of Wheeler’s estate in the State of Connecticut, who had been appointed to pass upon the claims against said estate, proof of a claim against Wheeler, under which dividends were afterwards paid to the plaintiff’s firm aggregating $665.70. It may be said in passing that this sum was deducted from the amount of the draft, in addition to the deduction already spoken of, made because to that extent the fund had been drawn out of the bank. The deduction was made by the trial court because it felt constrained to do so, owing to a stipulation contained in the record.

This ruling of the court is not challenged and need not be further alluded to.

Now, it is urged that plaintiff’s firm on the seventh of September had two remedies, either one of which they could resort to, but not both, because they were inconsistent. These remedies were: First, to treat the 600 boxes of tin as plaintiff’s property and follow it or the proceeds. Second, to ratify the action of Wheeler in selling the property and treating the proceeds as his own, and proceed against him for th^purchase price.

The case of Bank of Beloit v. Beale (34 N. Y. 473) is especially invoked, because of the alleged similarity of its facts to the case at bar. In that case a vendor, who was defrauded in the sale of goods, after being apprised of the fraud took judgment against his vendee under the contract of sale, and when afterwards he attempted to follow the goods or proceeds into the hands of third persons on the ground that the goods were obtained from him through fraud, the court held that he had made liis election to affirm the contract, and could not, therefore, proceed in disaffirmance of it. But it will be observed that the vendor’s position in one action was that he had made a valid contract with the vendee under which delivery of the goods had been made which entitled him to recover the purchase price, while in the other it was that the alleged contract between himself and the vendee was absolutely void, and no contract at all, because of the fraud of the vendee.

In other words, to maintain one action it was necessary to prove a contract, and to maintain the other that there was no valid contract. If the circumstances surrounding the transaction out of which this action grows presented a similar situation, the appellant’s position would be well founded. But here every step which has been taken, whether in the action in the Superior Court, in the presentation of claims against the estate of Wheeler, or in the commencement of this action, is in affirmance of the contract between plaintiff’s firm and Wheeler. It presents a case where plaintiff’s firm has two or more consistent, instead of two or more inconsistent remedies. And a party, having several remedies for the same debt, may resort to them all, although he can have but one satisfaction. (Gambling v. Haight, 59 N. Y. 354.)

In the contract or trust receipt, as it is called, between Wheeler and the plaintiff’s firm, it was provided that the goods purchased under the letter of credit, and the proceeds, shall, to all intents and purposes, be your absolute property until full satisfaction by payment shall have actually been made to you under the agreement of receipt of said letter of credit.” This was in furtherance of the original trust agreement, signed by Wheeler & Co., upon receiving the letter of credit for £10,000 sterling.

Therein Wheeler agrees “ To provide you here fifteen (15) days before the maturity, respectively, of any bills drawn under such letter of credit, with sufficient funds in the currency of the United States to meet such bills as they become due, together with your commission upon the amount of such bills, which it is agreed shall be one-half of one per cent (½ %). We also agree to give you security here for the amount of such bills at any time previous to their maturity if required by you to do so. All property which shall be purchased by means of the above credit and the proceeds thereof and the policies of insurance thereon * * * are hereby pledged and hypothecated to you as collateral security for the fulfillment of this agreement on our part.”

By the contract then it was provided that the ownership of the merchandise and the proceeds thereof should continue in the plaintiff’s firm until Wheeler should pay to them the original purchase price. Its legal effect was to make Wheeler the debtor of plaintiff’s firm for the moneys advanced in payment of the merchandise purchased by him, and plaintiff’s firm the owners of the goods until full payment should be made. (Moors v. Kidder, 106 N. Y. 32; Drexel v. Pease, 133 id. 129-136.)

Hnder their contract, therefore, plaintiff’s firm had the right to sue Wheeler for his debt, and in the same or another action enforce their rights as owners of the goods.

The judgment should be affirmed, with costs.

Van Brunt, P. J., and Follett, J., concurred.

Judgment affirmed, with costs.