author: Dtkman, J.:

text:
    SARAH McGRATH, Respondent, v. SARAH F. WALKER, Appellant.

      Negligence — construction of a run-way in a sidewalk — a nuisance existing when premises are let — liability of the owner — visit of the jury to the locus in quo.
    Prior to the time when Sarah P. Walker purchased certain premises they had been used as a livery stable, for the purposes of which a run-way had been excavated in the sidewalk of a city street, by which the basement was reached. The runway began at about the outer line of the stoop of the house, and descended at an angle of fifteen degrees towards the house, at which point it reached the depth of four feet. Sarah P. Walker leased the premises to a tenant, not changing this construction.
    In 1889 Sarah McGrath, walking along the sidewalk at night, fell into the runway and brought an action against Sarah P. Walker for the recovery of the damages resulting from the injury. There was neither allegation nor proof that the city had originally authorized the construction of this run-way, although it had existed from a date prior to 1860.

      Held, that the action could be maintained.
    That the run-way was a nuisance, and that it was the duty of the owner to have abolished it; and that, having, leased the premises with the nuisance in existence, she was liable to one who, free from negligence on her part, was injured while lawfully using the sidewalk.
    That the maintenance of'a nuisance is a wrong equal to that involved in its creation.

      Semble, that it was error for the court to allow the jury to visit the locus in quo.

    Appeal by the defendant Sarah F. Walker from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 5th day of November, 1891, upon a verdict in favor of the plaintiff for $268, after a trial at the Kings County Circuit before the court and a jury; also from an order, entered in said clerk’s office on the 30th day of October, 1891, denying a motion for a new trial; and also from an order, entered in said clerk’s office on the 14th day of December, 1891, denying a motion to set aside the verdict on the ground of the misconduct of the jury.

      (Jha/rles M. Desmond, for the appellant.

      BaeJcus & Manne, for the respondent.
   Dtkman, J.:

By her complaint in this action the plaintiff charges the defendant with the ownership of the house and premises designated as Nos. 13 and 15 Columbia street, in the city of Brooklyn, and alleges that she wrongfully and unlawfully constructed and maintained a dangerous opening in the highway in front of the property.

She then further states that on the 21st day of May, 1889, while walking upon the highway in front of such premises, without knowledge of the excavation, without want of care, she fell into it and sustained a severe injury to her foot.

The defendant, in her answer, admits her ownership of the property, and denies the other allegations in the complaint. Then, for a special defense, the answer “ further alleges that the defendant, sinée the year 1878, has owned the premises mentioned in the complaint, and that at no time was there any dangerous hole, opening, pit or excavation maintained by her in front of said -premises and along and upon the highway in front thereof, nor was there any arch in fiont thereof; but that, on the contrary, the only excavation in front of said premises during all of such time was an inclined depression wholly within the stoop line of said premises, gradually sloping downwards toward the cellar of said building; that such depression was on said premises when defendant acquired the same, and was and is an entrance for horses into'the basement of said building, and prior to defendant’s ownership of said premises was used, in connection with said premises, for the purpose of a stable for horses. That said depression was and is properly constructed and was lawfully maintained by defendant, and properly guarded in all respects, and was in no sense dangerous or likely to cause damage or injury; and defendant alleges that this is the hole, opening, pit or excavation referred to by the plaintiff in her complaint. That all of the. matters herein alleged existed on May 21,1890; that at such last-mentioned date the said premises were in possession of a tenant of defendant.”

Many years ago, and before 1860, the building upon the premises had been used as a livery stable, and a passage-way had been excavated in the sidewalk to lead to the basement by a gradual descent at an angle of about fifteen degrees. It was about four feet in depth at the floor of the basement and ascended so as to strike the sidewalk about at the stoop line, and left several feet between the point where it came to the surface and the curbstone. It was made and used to pass horses to and from the basement.

As the plaintiff was walking along the sidewalk in front of these premises with her two children, about ten and a half o’clock in the evening of the 21st day of May, 1889, she fell into that run-way and sprained her ankle, and this action is for the recovery of the damages she has sustained.

The run-way was in the sidewalk when the defendant became the owner of the premises, and she has leased them to a tenant and allowed the excavation to remain the same down to the time of the accident.

The cause was tried at the circuit before a jury, and the plaintiff obtained a verdict for the sum of $268. From the judgment entered upon that verdict, and from the order denying a motion for a new trial on the minutes, the defendant has appealed to this court. The defendant did not allege in her answer, nor prove during the trial, permission from the municipal government to construct the opening on the sidewalk, and although such authority might be inferred from long acquiescence in its continuance without objection from the city, yet the duty of safe covering and protection devolved upon some one, and if that obligation remained unperformed the opening continued to be a wrong and a nuisance. (Jennings v. Van Schaick, 108 N. Y., 532.)

It becomes necessary now to inquire and determine whether the defendant is responsible for the continuation of the wrong. The plaintiff was lawfully upon the sidewalk when she received her injuries, and her right to use the same was co-extensive with the boundary of the street. She could walk by faith in reliance upon the performance of the duty which the law imposed upon the municipal authorities and the property owners to maintain the streets and sidewalks free from pit-falls and other nuisances. In all other respects the verdict of the jury exonerates her from the-imputation of negligence contributive to the injury.

As we have seen already, the defendant had leased the premises-to a tenant with the depression in the sidewalk, the same as when it-was originally constructed, without any guard or protection. It remained the same down to the time of the accident, and the natural inference is that the property was rented for use in that condition.

It becomes necessary now to inquire and determine whether the defendant is responsible for the continuation of the wrong. According to the cardinal rule relating to the subject, any act of an individual in a public highway or street which detracts from the safety of travelers is a nuisance, and whoever makes or continues the same is responsible for all injuries resulting from the unsafety of the way caused thereby. (Dygert v. Schenck, 23 Wend., 446; Congreve v. Smith, 18 N. Y., 80.)

In point of principle, the maintenance of a nuisance is a wrong equal to its creation; and it has long been settled that if the owner creates a nuisance upon his premises and then demises them while it yet exists, and is in the receipt of rent therefrom at the time of an accident; lie is responsible for the resulting damage.

There is no reason why that principle should not extend to this case. The pit was in the sidewalk when the defendant became the owner of the property, and it imperiled the safety of travelers. It was, therefore, a nuisance, and the premises were affected with it when they were rented by the defendant. It was her duty then to abolish the same, but instead of doing so she leased the property in the same dangerous condition. That act amounted to maintenance of the nuisance. Her failure to abate the same was non-feasance,, and non-feasance was equivalent to misfeasance. Continuance was equal to creation, and inaction was continuance.

Her demise of the premises, with the opening uncovered, to be-, used by the tenant in the same condition, constituted a perpetuation of the wrong from which she derived a pecuniary benefit.

The case of Walsh v. Mead (8 Hun, 387), was an action for damages for injuries caused by the sliding of a quantity of snow from the roof of a house owned by the defendant, but in the actual occupation of a tenant at the time of the accident.

The action was prosecuted upon the theory that the roof of the building had not been properly constructed or guarded by the owner, and for that reason the snow was precipitated to the street and upon the plaintiff. That fact was found in accordance with the contention of the plaintiff. At the General Term of the Supreme Court, where the case went upon an appeal of the defendant, it was held that a roof so constructed in a large city is a nuisance because it imperils the safety of persons passing below in the lawful use of the streets. Also “that the landlord or owner will remain liable after alease, and exclusive possession under it taken by a tenant of premises affected by a nuisance at the time of the demise, for an injury occasioned by it to a third person, and upon general principles he ought not to be exonerated from that liability, even though the tenant’s negligence combines with the same wrong in producing such result. The erection and maintenance of a nuisance is a wrong, and by leasing the building affected by it to another person the owner continues it and stipulates for the enjoyment of a profit from it, that has always been held to be sufficient to render him accountable to innocent third persons for the consequences of injuries received by them from it.”

It was also said in that case, as it may be said in this, that no agency of the tenant intervened to produce the result,” but it befell, in both cases, by reason of the improper structure which endangered the safety of travelers in the public street.

The doctrine enunciated in the case of Swords v. Edgar (59 N. Y., 28) is in favor of the plaintiff here. In that case the defendants, were the owners of the one-half of a pier in the city of New York, which, at the time of the accident, was in the possession of their tenants, hut it was in a defective condition at the time of the demise, and the owners were held responsible for injury to one lawfully upon the dock which resulted from its unsafety.

The decisions in the following cases are also in favor of the plaintiff, and of the conclusion we have reached: Clancy v. Byrne (56 N. Y., 129); Congreve v. Morgan (4 Duer, 439; 5 id., 495); Clifford v. Dam (81 N. Y., 52); Davenport v. Ruckman (37 id., 568); Irvine v. Wood (51 id., 224); Anderson v. Dickie (26 How., 105).

This is not like the case of Woram v. Noble (41 Hun, 400); there the defendant became the owner of the premises in September, 1883, subject to a lease expiring May 1, 1884, and the tenant was in possession when the plaintiff was injured at the coal-hole in April, 1884. The coal-hole was in the sidewalk when the defendant became the owner, and he had no knowledge of its defective condition previous to the accident. It was there said, in the opinion respecting the nuisance, that the defendant “ had no agency in its creation; was without knowledge of its existence; derived no benefit from its continuance, and was destitute of authority for its abatement.”

The case is also easily distinguishable from the cases of Wolf v. Kilpatrick (101 N.Y., 146), and Conhocton Stone Road v. Buffalo, etc., Railroad Company (51 id., 582).

After a careful examination of the case, both upon principle and authority, we reach a conclusion adverse to the appellant; and the judgment and order denying the motion for a new trial should be affirmed, with costs.

There is also an appeal from an order denying a motion to set aside the verdict for misconduct of the jury, based upon the following facts:

At the close, of the first day of the trial the jury was directed to visit the premises in the following language:

“ The Court — I think I will send the jury down and let them look at it. Gentlemen, I will send you down there to look at it, and make up your minds among yourselves what the condition of that path or run-way was in 1889, when this accident took place. 1 will not allow the counsel to say a word to you while you are there, but I will send an officer with you. You just go there and satisfy yourselves whether that hole has been filled up or not. I think if you examine it you can tell exactly what the condition of that runway was in 1889.

At the opening of the court the next morning the following record was made:

“Mr. Backus (counsel for the plaintiff) — Does it appear upon the record that the jury at this stage yesterday afternoon visited the scene of the accident with the consent of both parties. I would like it to appear upon the record that the jury visited the scene of the accident in the custody of an officer.

“ Mr. Demond (counsel for the defendant) — No; let the record read that by-order of the court the jury visited the premises in question, without objection from either party.

“ The Court — I do not think it very material. The court has a right to order it.”

The jury did visit the premises, and the moving affidavits tend to establish abuses, while the answering affidavits tend to disprove all such allegations.

We cannot convict' the jury of misconduct upon the affidavits read on the motion. Without doubt there were remarks improperly addressed to some jurors, or made within their hearing, but we cannot say they influenced their minds. Such abuse was inevitable and was almost certain to follow the visitation of a body of men in a populous city to any particular locality, and the first mistake was made when the visit was directed. But neither of the counsel made any objection to such direction, and their silence amounted to consent.

It was easily to be foreseen that improprieties, even beyond detection, might creep in and that the jurors would imbibe some impression from the evidence they took in through their eyes, if not through their ears; and all that was waived by failure to object.

As no misconduct is fastened upon the jury, we cannot interfere, and the order should be affirmed, with ten dollars costs and disbursements.

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

Judgment and order denying new trial affirmed.


source: Caselaw Access Project

author: Barnard, P. J.:

license: Public Domain

text:
    FRANK P. DAVIS, as Administrator, etc., of JOHN M. DAVIS, Deceased, Appellant, v. CHARLES H. VAN WYCK, Respondent.

      Tender — it is not necessary where the other party has disabled himself from, performing.

    In an action brought by tlie administrator of one Davis to recover money paid upon a contract, under seal, and damages for the breach thereof, it appeared that one Van Wyck had agreed to convey certain land to Davis; that the administrator of Davis and Van Wyck differed as to the amount due Van Wyck upon the contract, and that the latter refused to take the payment proposed to be made to him by the administrator..
    No formal tendei-, however, was made.
    Subsequently Van Wyck sold the premises.

      Held, that as neither party was in default, and as Van Wyck had put it out of his-power to perform, even if a tender had been made, the tender was excused.
    . Appeal by the plaintiff Frank P. Davis, as administrator of John M. Davis, deceased, from a judgment of the Supreme Court,, entered in the office of the clerk of Orange county on the 27th day of October, J890, upon a dismissal of the complaint after a trial at. the Orange County Circuit before the court and a jury; also from an ord.er, entered in said office on the 18th day of June, 1891, denying a motion for a new trial made upon a case and exceptions.

      S. S. Gowdey, for the appellant.

      W. J. Groo, for the respondent.
   Barnard, P. J.:

On the 14th of December, 1867, the defendant agreed to convey to John M. Davis certain premises in Sullivan county: The consideration is left quite uncertain, so far as it is expressed in the paper. The agreement signed by Van Wyck, defendant, is stated to be “for the price this day paid for the same, together with the amount due me from the estate of said William Davis, and shall also pay the amount he has this day agreed to pay the estate of Wm. Davis, deceased, by an agreement with the administrators of said estate.”

The agreement also recites that defendant had purchased the land to secure his claims against William Davis, deceased, and that he was to be indemnified by the sale to plaintiff’s administrator against an agreement which defendant had made to guarantee an agreement of John M. Davis to the administrator of said William Davis. There was paid $900 to Van Wyck, defendant, by John M. Davis on the 20th of January, 1871. John M. Davis had possession of the land from the date of the agreement, and died in 1873. In 1877 the widow and family of deceased, John M. Davis, left the property. In 1877 the administrator had an interview with the defendant. The parties differed as to the debt due. The administrator said it was thirteen hundred dollars about, and Van Wyck claimed it was over twenty-five hundred dollars. The administrator expressed a willingness to pay the $1,300. Van Wyck refused to take it, and in March, 1883, sold the property to one Case. There was no formal tender on either side, and the agreement continued (Nelson v. Plimpton Fire Ins. Co., 55 N. Y., 480); and the question is reduced to this: Whether a sale of the premises, when neither party was in default, waived a specific, strict tender before an action for breach could be commenced ?

The sale by Van Wyck put it out of his power to perform, and is of itself a breach. A tender is not necessary where a party puts it out of his power to comply. There was proof tending to show that the claim of Van Wyck was a mortgage only, and, as $900 had been paid on that, there should have been an accounting and a balance arrived at, fixing debt and use and occupation reduced by payment. It was not too late to receive the testimony of the witness Groudy.

The judgment should, therefore, be reversed and a new trial granted, costs to abide event.

Pratt, J., concurred.

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


author: DyeMAN, J.:

text:
    JOHN J. CAMPBELL, Respondent, v. WILLIAM ERNEST, Appellant.

      Injunction to restrain a debtor’s transfer of real estate — not pi'oper in an action upon a judgment for money only — equitable relief — an insufficient affidavit.

    In 1875 John J. Campbell obtained a money-judgment on contract against William Ernest. In 1891 he obtained leave to sue upon the judgment, and also procured an injunction restraining Ernest from disposing of his property pending the action.
    Campbell, in the papers used to obtain the injunction, stated no facts tending to show that Ernest had done or threatened any act which would render the judgment ineffectual, or that he threatened to, or was about to, dispose of his property.
    The affidavit of Ernest, in opposition to the injunction, showed that he had no property beyond a small interest in some real estate which was in process of partition.

      Held, that the injunction was improperly granted under subdivisions 1 and 2 of section 604 of the Code of Civil Procedure.
    That the '• subject of the action ” was not the property of the defendant which was being partitioned, but was a judgment for money only.
    That the provisions of the Code were intended to apply to equitable actions where the defendant, if not restrained, would do acts violating rights claimed by the plaintiff in the subject of the action.
    That an affidavit in such a case must state the facts which are deemed to show a fraudulent intent upon the part of the defendant to dispose of his property.
    That the belief of the plaintiff upon such a point is insufficient.
    Appeal by the defendant William Ernest from so much of an order of the Supreme Court, entered in the office of the clerk of Orange county on the 22d day of September, 1891, as granted an injunction and stay, and also from that part thereof which restrained the defendant from disposing of his property during the pendency of the action.

      Esmond c& Wa/rd, for the appellant.

      Strahan c& MoGlung, for the respondent.
   DyeMAN, J.:

This is an action upon a judgment obtained by the plaintiff against the defendant in the Supreme Court on the 7th day of July, 1875, for $142.27.

On the 12th day of September, in the year 1891, Benjamin McClung, one of tbe attorneys for tbe plaintiff, presénted to one of tbe justice’s of tbis court, an affidavit made by bimself, in wbicb be recited tbe procurement of an order to show cause wby tbe plaintifE should not bave leave to sue upon the judgment, and the appearance of tbe defendant in opposition to the injunction which was thus sought to restrain him from any disposition of bis property pending tbe action, tbe presentation of an affidavit of tbe defendant at that time, of which a copy was annexed, tbe prevalence of the application before tbe justice who made and signed an order in the action granting permission to the plaintiff to bring tbis action upon tbe judgment and also an injunction restraining tbe defendant from making any transfer or disposition of bis property until tbe determination of tbis action. He also recites the appeal of tbe defendant from so much of the order as restrained him from transferring his property, and that such appeal would be argued and disposed of at tbe General Term of the court in Brooklyn on the fourteenth of that month, and .then uses tbe following language: That deponent bebeves after reading tbe said affidavit of William Ernest, a copy of wbicb is hereto annexed, as aforesaid, that should tbe plaintiff in said action (the plaintiff herein) not be successful in obtaining the affirmance at said General Term of the injunction order referred to in said former action, that the said William Ernest, defendant herein will, during the pendency of this action, dispose of his property referred to in his said affidavit with intent to defraud the plaintiff herein, and to render nugatory any proceedings or effort by this plaintiff to obtain payment of his claim in this action.”

The annexed affidavit of the defendant, to which reference is made, is as follows :

SUPREME COURT.

CouNty of OeaNge, City of Newbuegh, ss. :

William Ernest, being duly sworn, says :

I. That he is a married man residing at the City of Newburgh, Orange county, N. Y.

II. That lie cannot remember that a summons was ever served upon, him in the above-entitled action, although he cannot deny the fact on oath at the present time.

III. That he is a sick man, unable at the present time to perform work and engage in business, being afflicted with a serious lung trouble. That deponent’s father died on the 9th day of June, 1891, at New-burgh, N. Y., leaving- a very small property in which deponent has a third interest, and in which his wife claims her right of dower. That a partition suit has been brought against deponent to partition or sell said property, and, in deponent’s opinion, his interest in the property left by his said father will not exceed from two to three hundred dollars. The real estate left by his father is mortgaged for $1,500, and consists of a small house and lot in the city of Newburgh, about 18 feet front and rear by 100 feet deep, and worth not to exceed $2,500.

IY. That deponent’s said interest in his father’s estate is all the property he has in the world, and includes everything he has for his support and to keep him in sickness. That deponent’s physician says that he is suffering from consumption ; deponent has a severe and constant cough, great weakness, and has been unable to labor since the middle of February last.

Y. That it would be a great hardship and affliction to this deponent if the court should restrain him from the use of his property, or make any order that would prevent him from applying it to his necessities during the pendency of the action which the plaintiff herein asks leave to bring.

WILLIAM EENEST.

Subscribed and sworn to before me \ this 13th day of August, 1891. )

F. W. ToMPKIns,

Commissioner of Deeds, City of Newbwrgh.

Upon those affidavits and the pleadings, which are not printed in the appeal papers, but which means only, as we assume, an ordinary complaint upon a judgment, an order was made requiring the defendant to show cause at a Special Term of this court, at Poughkeepsie, on the 19th day of September, 1891, why an order should not be made and entered enjoining the defendant from removing or disposing of bis property, or making any disposition of tbe same during the pendency of this action, not exempt by law from execution, or in any manner to interfere therewith until further order in the premises; and the order also contained a temporary stay until the determination of that motion.

Upon the return day of that order to show cause the motion was heard and granted, and an order was made enjoining and restraining the defendant from removing or disposing of his property not exempt from execution, or making any disposition of the same during the pendency of this action, or in any manner interfering therewith until further order in the premises. *'

The defendant has appealed from the order, and we are required to ascertain whether it can be sustained.

The rule of law by which the validity of the order must be tested is this: Where it appears by affidavit that the defendant, during the pendency of the action, is doing or procuring, or suffering to be done or threatens, or is about to do or to procure or suffer to be done, an act in violation of the plaintiff’s rights, respecting the subject of the action, and tending to render the judgment ineffectual, an injunction order may be granted to restrain him therefrom.

“ Where it appears by affidavit that the defendant, during the pendency of the action, threatens, or is about to remove or to dispose of his property with intent to defraud the plaintiff, an injunction order may be granted to restrain the removal or disposition.” (Code of Civ. Pro., § 604, subs. 1, 2.)

This statute authorizes the interposition of the court, and the issuance of an injunction order to restrain the action of a defendant where it appears by affidavit that, during the pendency of the action, he is doing, or procuring, or suffering to be done, or threatens or is about to do, or procure, or suffer to be done, an act in violation of the plaintiffs rights respecting the subject of the action, and tending to render the judgment ineffectual, also where it appears by affidavit that the defendant, during the pendency of the action threatens or is about to remove or dispose of his property with intent to defraud the. plaintiff.

It was the design of the law to empower the court to enjoin the commission of some particular act which the defendant was doing or procuring, or suffering or threatening, in violation of the rights of tbe plaintiff respecting tbe subject of tbe action, or where be was about to remove or dispose of bis property with intent to defraud tbe plaintiff. But it never was intended to authorize tbe restraint of all sales of property.

Moreover, before any act can be restrained, it must be violative of the rights of tbe plaintiff respecting tbe subject of tbe action, and we may pause here to say that the property of tbe defendant is not the subject of this action, and no act of tbe defendant in relation thereto can violate any rights of tbe plaintiff respecting the same for that reason, and for tbe additional reason that tbe plaintiff has no rights in such property, and claims none.

In short, this statute has no application to an action of this character where a moneyed judgment only is sought. It was designed to provide a short and easy method for the procurement of injunctions in equitable actions for relief where the defendant, if unrestrained, would do or suffer some act in violation of the rights of the plaintiff respecting the subject of the action, which would tend to render the judgment ineffectual and nugatory. But plainly it applies, and can be utilized only in an action involving the rights of the parties to something which constitutes the subject of the action in respect to which the plaintiff claims some rights and seeks some special relief.

In no proper or legal sense can a defendant do or permit any act in violation of the plaintiff’s rights respecting the subject of the action, in an action on contract for the recovery of money only. The plaintiff in such an action has no rights as against the property of the defendant until he obtains a judgment, and until then he has no legal right to interfere with the defendant in the use and sale of the same.

It would be a new and dangerous innovation to hold that a plaintiff, upon the commencement of an action on an account against a merchant, could procure an order of the court restaining him from selling his goods pending the suit, because such sales would diminish the chances for the collection of the judgment when obtained, and yet such is the logical result of the doctrine which would sustain this order.

Turning, now, to the affidavit upon which the order was based, we find it entirely insufficient to sustain it in any view. It states no fact, and merely says that after reading the affidavit of the defendant the deponent believes he will dispose of the property referred to during the pendency of this action with intent to defraud the plaintiff, and render nugatory any effort of his to obtain payment of his claim in this action. How he could imbibe such a belief after reading the affidavit it is impossible to conjecture. Certainly there is nothing in the affidavit tending to induce such a conviction. The defendant said there that it would be a great hardship to him if the court should restrain him from the use of his property or make any order that would prevent him from applying it to his necessities.

There is no expression of a desire or intention to sell or dispose of the property, and no statement from which such intention can fairly be inferred. But even though the affiant did entertain such belief after he read the affidavit, he could not transfer his credulity to the judge who made the order. That official required facts to convince the judicial mind, and upon which he could find that the defendant entertained an intention to make a fraudulent disposition of his property; and it is idle to claim that the affidavit contained any statement to justify such a conclusion or upon which the judge could base any action.

“ Besides it is a fundamental rule that when facts are to be found by a judge or jury, the evidence of the existence of the requisite facts must be presented, and not the conclusion or inference of the affiant or witness that the requisite facts exist. If this were not so, the judicial function of the court or jury would be superseded, and the conclusion of the affiant or witness would be substituted instead of the judgment of the court or jury.” (McCracken v. Flanagan, 127 N. Y., 496.)

The order should be reversed, with ten dollars costs and disbursements.

Peatt, J., concurred; BaeNAbd, P. J., not sitting.

Order reversed, with ten dollars costs and disbursements.


text:
    THE FARMERS’ LOAN AND TRUST COMPANY, as General Guardian of the Estate of SUSANNA MADDEN and Another, Respondent, v. ELBERT C. WILSON, Appellant.

      Principal and agent — an agency is terminated by the death of the'principal.

    "William Madden, the owner of certain premises, gave verbal authority to one Corbett, as his agent, to rent the property, and thereafter died. Corbett, during Madden’s life, gave a lease of the property, and subsequently, and after Madden’s death, continued to collect rent of the tenant, who was ignorant of Madden’s death.
    In an action by the guardian of Madden’s children, his devisees, to recover rent for the same period, after Madden’s death, for which Corbett had collected the rent:

      Held, that the agency of Corbett was revoked by Madden’s death, and that the payments made thereafter by the tenant to Corbett were not a defense to the action brought on behalf of Madden’s children.
    Appeal by the defendant Elbert O. Wilson from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 11th day of November, 1891, upon a recovery by the plaintiff of $3,314.46, besides costs, after a trial at the Kings County Circuit by the court, a jury having been waived.

      Hugo Hirsh, for the appellant.

      Herbert B. Turner, for the respondent.
   Barnard, P. J.:

William Madden, in his lifetime, was the owner of tenements No. 290 and 292 Fulton street, in the city of Brooklyn. The owner gave authority verbally to D. M. Corbett to rent the property. Corbett, in April, 1884, rented the property to the defendant for an annual rent of $3,500, payable monthly in advance. William Madden died in Cuba in August, 1884, leaving a will by which he devised the property to certain infants for whom the plaintiff is guardian. Corbett continued to collect the rents after Madden’s death, and the defendant paid the rent in ignorance of the fact that the owner was dead. The question presented is whether or not the payments made to Corbett after Madden’s death are good. The general rule is that an agency is revoked by the death of the principal. This rule has been before the Court of Appeals in the case of Weber v. Bridgman (113 N. Y., 604) and upheld. The court says that there can be no agent when there is no principal, and that to legalize a payment made to an agent after the principal’s death, the agent must have an interest independent of the principal, and not destroyed by his death. No such standing upon the part of the agent is disclosed. He was a mere agent to receive rents and pay •them over; and while he may be assumed to have been entitled to a commission upon the collection, it is not to be doubted but that the principal had full power to terminate the agency, against the agent’s wishes, at any time. No proof is given that the agent had made any repairs or had paid any taxes which he was entitled to be paid out of the rents. The case seems to show an ordinary agency to collect rents and pay them over to the principal.

The judgment should be affirmed, with costs.

Pratt, J., concurred.

Judgment affirmed, with costs.


author: BarNARd, P. J.:

text:
    THE BOARD OF COMMISSIONERS OF CHARITIES AND CORRECTIONS OF KINGS COUNTY, Plaintiff, v. THE BOARD OF SUPERVISORS OF QUEENS COUNTY, Defendant.

      Counties — the support of felons is a State charge — contract with another county for their support — 2 Revised Statutes (M ed.), 582, sec. 46; Laws of 1856, chap. 158; 1874, chap. 247; 1869, chap. 574; 1875, chap. 571; 1877, chap. 172; 1858, chap. 189; 1874, chap. 209.
    The support of prisoners convicted of a felony is a State charge, and has never been a county charge. A county has no power to contract with another county having a penitentiary for the support of such felons.
    Submission of a case, under sections 1279 et seg. of the Code of Civil Procedure, agreed upon between the Board of Commissioners of Charities and Corrections of Kings County and the Board of Supervisors of Queens County.

      The submission was to the following effect:

      First. That the Board of Commissioners of Charities and Corrections of Kings County is the legal authority in control of the penitentiary of Kings county, and legally authorized to make contracts with the boards of supervisors of other counties not having a penitentiary, for the board and care of prisoners sentenced from such other counties to the Kings County Penitentiary in accordance with law.

      Second. That on the 2d day of March, 1887, the Board of Commissioners of Charities and Corrections of Kings County, and the •Board of Supervisors of Queens County entered into a contract in words and figures, as follows:
    “ This agreement, made between the Board of Supervisors of the County of Queens, in the State of New York, party of the first part, and the Board of Commissioners of Charities and Corrections, County of Kings, State of New York, party of the second part,
    “ Witnesseth: Whereas, the party of the second part, for and in consideration of the moneys hereinafter mentioned, does agree to receive and safely keep, board and clothe, all such persons as shall be sentenced to be imprisoned by any court or magistrate in the said county of Queens, for any length of time not exceeding five years. All such persons so sentenced to be delivered into the custody of the keeper or warden of the Kings County Penitentiary by the sheriff of the said county of Queens, or by any other officer or constable of the said county of Queens, to wit:
    “ For all persons sentenced for a period • of from six months to twelve months or over, one dollar and seventy-five cents per week.
    “ For all persons sentenced for a period of from three months to and under six months, two dollars per week.

      “ For all persons sentenced for a period of from sixty days to and under three months, two dollars and twenty-five cents per week.
    “ The party of the first part doth hereby agree to cause to be conveyed to and delivered at the Kings- County Penitentiary in the county of Kings, all persons who may be sentenced to be imprisoned therein for any length of time (not exceeding five years), for any crime or misdemeanor, and to pay the prices as hereinbefore stated for the board and maintenance of prisoners so' sentenced and delivered to the care and custody of the keeper or warden of the Kings County Penitentiary in the said county of Kings, semiannually.” * * *

      Fourth. That after the making of said contract certain prisoners convicted of misdemeanors, and certain other persons convicted of crimes not punishable by imprisonment in a State prison, were sentenced in Queens county to imprisonment in the Kings County Penitentiary, and their board and maintenance was charged by Kings county to Queens county, at the rates specified in the contract above set forth.

      Fifth'. That after the making of said contract certain other prisoners convicted in Queens county of crimes punishable by imprisonment in a State prison, i. e., felonies, were likewise sentenced to imprisonment in Kings County Penitentiary in accordance with law, and their board and maintenance was charged to Queens county, at the rates specified in said contract.

      Sixth. The Board of Supervisors of Queens County, under the said contract, has audited, allowed and paid all bills rendered by the Board of Commissioners of Charities and Corrections of Kings ■County up to January 1, 1890, at the rates specified in said contract. * * *

      Seventh. Since said January 1,1890, the Board of Commissioners ■of Charities and Corrections of Kings County has rendered to the Board of Supervisors of Queens County, at the rates specified in said contract, both for certain prisoners convicted of misdemeanors ■and certain other persons convicted of crimes not punishable by ■imprisonment in a State prison, who were also sentenced to imprisonment in the Kings County Penitentiary from said Queens county, and also for certain other prisoners convicted in Queens ■county of crimes punishable by imprisonment in a State prison, i. e., felonies, who were likewise sentenced for imprisonment in the Kings County Penitentiaiy from said Queens county, certain bills. * * *

      Eighth. That after the making of said contract the Board of Commissioners of Charities and Corrections of Kings County were allowed and paid by the comptroller of the State for the maintenance of certain prisoners convicted in Queens county of crimes punishable by imprisonment in a State prison, i. e., felonies — who were sentenced to imprisonment in Kings County Penitentiary, in accordance with law — a sum which has varied from year to year, as the State appropriation, for such purpose would allow. * * *
    Upon the foregoing facts, is Queens county liable to Kings county for the board and maintenance of prisoners convicted in Queens county of offenses punishable by imprisonment in a State prison and sentenced to the Kings County Penitentiary in accordance with law ?

      John A. Qwmtard, for the plaintiff.

      Francis II. Van Vechten, for the defendant.
   BarNARd, P. J.:

By the Revised Statutes, all persons convicted for a criminal misdemeanor were to be imprisoned in a county jail, where imprisonment was included in the sentence. (2 R. S. [2d. ed.], 582, § 46.)

The prisoners were to be supported in the jails by the several counties. Felonies were punishable by an imprisonment in the State prison and in no other place. Prisoners in the State prisons were to be supported by the State at large. This law has never been changed and the support of convicts for felonies has never been put upon the counties.

By chapter 158, Laws of 1856, convicts for felonies punishable by imprisonment in a State prison, between the ages of sixteen and twenty-one, might be sentenced to a penitentiary in the judicial district in which the conviction was had. The cost of delivery of the convicts at the penitentiary was directed to be paid by the State treasurer. (Chap. 247, Laws of 1874.)

By chapter 574, Laws of 1869, in all counties having a contract with the Albany Penitentiary, State-prison convicts could be sentenced to the Albany Penitentiary without charge to either State or county. *

By chapter 571, Laws of 1875, all sentences which could be punished by an imprisonment in a State prison, of three years or less, could be sentenced to a penitentiary in the judicial district. The comptroller of the State was directed to pay for the maintenance of these convicts.

By chapter 172, Laws of 1877, all females convicted of offenses punishable by imprisonment in a State prison, were directed to be sent to the county penitentiary within the judicial district, and this law provided that the State comptroller should pay for the support of these convicts.

It will be thus seen that no contract for the support of persons .convicted of an offense punishable by imprisonment in a State prison was ever needed. The charge, therefore, was a State charge, and not a county one. The change in the place of detention of county jail convicts commences with chapter 139, Laws of 1858. By this act two counties were authorized to contract with the Albany penitentiary for the support of persons sentenced to imprisonment not less than sixty days; and by chapter 209 of the Laws of 1874, all counties might contract with a county having a county penitentiary, for the support of prisoners convicted of a crime “not punishable in a State prison.”

The power to contract with the plaintiff upon the part of Queens county, as to the support of prisoners punishable in a State prison, never existed. The contract must be held to be within the spirit of the law, which is to authorize Queens county to board its jail prisoners, who are sentenced to detention over sixty days, to be detained in a penitentiary where occupation will be furnished to the prisoners, and, incidentally, to compel the prisoner to earn his own support.

Judgment should, therefore, be given for the defendant upon the submitted case.

Peatt, J., concurred.

Judgment for defendant upon submitted case.


text:
    CHRISTIAN F. G. MEYERS and Others, Appellants, v. FRANCES E. HERBERT, Respondent.

      Supplementary pn'oceedings — disobeying an injunction— abandonment of proceedings presumed from, lapse of time.

    In October, 1887, the plaintiffs, wbo had recovered a judgment, obtained the usual order for the examination in supplementary proceedings of the judgment-debtor, which order contained the usual injunction against the debtor’s disposing of her property. The examination was postponed until November, 1887, and was then indefinitely postponed.
    In April, 1891, the plaintiffs obtained a new order for the debtor’s examination. It appeared that shortly before the new order was obtained the debtor had disposed of her jewelry to her mother for moneys advanced, which were necessary to her support.

      Held,, that the debtor was not guilty of a contempt of the first injunction order.
    That after the lapse of more than three years that proceeding must be deemed to have been abandoned.
    Appeal by the plaintiffs, Christian.F. G-. Meyers, John F. W. Meyers, Edward P. Williams, Edward W. Sinclair, Frederick G Meyers, Theodore F. Meyers and Gustav G. Meyers, from an order of the Supreme Court, entered in the office of the clerk of Kings county "on the 31st day of October, 1891, denying their motion that the defendant be adjudged to be guilty of contempt'.

      M. Gleiland Milnor, for the appellants.

      Carrington <& Emerson, for the respondent.
   Barnard, P. J.:

The judgment in this case was obtained in February, 1887. In October, 1887, the defendant was examined under proceedings supplementary to execution. Her • examination was completed on the 2d of November, 1887. An adjournment was taken to November 12, 1887, for the examination of witnesses. On that day the judgment-creditors (plaintiffs) obtained a further postponement to a future day in November 1887, which was not fixed. The supplemental order contained the usual injunction against a disposition of her property by the judgment-debtor. After the 12th of November, 1887, there was no further hearing under the order of 1887. In April, 1891, the plaintiffs obtained a new order for the examination of the judgment-debtor. It appeared that the debtor had disposed of certain property she had at the examination of 1887, to her mother for value ; the consideration being money advanced by defendant’s mother to her to a greater amount than the value of the property sold, being the jewelry of the defendant. The transfer was made April 1, 1891, after the defendant was informed that the plaintiffs claimed that Judge Pratt’s order was still in force and before the new order was obtained from Judge Cullen. There was no contempt of Judge Pratt’s order proven. The plaintiff’s never applied for a receiver or for an order for the delivery of the property to the creditor. Some three and a half years had elapsed since the close of the examination. When informed by the plaintiff’s attorneys that they claimed Judge Pratt’s order against' assignment of property was still in force, the defendant consulted a lawyer of high character for learning and was informed that the proceedings were abandoned and that the injunction order terminated with the abandonment. The defendant had no lawyer to represent her on the examination under Judge Pratt’s order. The failure for so long a time to reinstate the hearing or to apply for a receiver must be deemed an abandonment of the proceedings. The property consisted, as we have seen, of the personal ornaments of the defendant. Soon after the examination her husband abandoned her and she became destitute and dependent upon her mother. It was not a contempt, under the circumstances, for her to sell her jewelry after the proceedings had been so long dormant.

The order should be affirmed, with costs.

Dtkman, J., concurred.

Order affirmed, with costs and disbursements.


author: Yan Brunt, P. J.:

text:
    PAUL WILLIAMS, Appellant, v. WILLIAM HAYS, Respondent.

      Estoppel — it must be mutual — mwitime insurance — remedy of the insurance company by subrogation against one negligently wrecking a vessel —judgment on another policy, held by the defendant in his own right, not an estoppel.

    William Hays, who was the master and part owner of a brig which was lost at sea, brought an action in August, 1886, upon a policy of insurance upon the brig, issued by the Phenix Insurance Company, and recovered a judgment, which was affirmed in the Court of Appeals. In October, 1886, and before the trial of said action, the insurance company paid to Parsons & Loud, also part owners of thg brig, the loss upon a similar policy issued to them.
    In December, 1886, the insurance company having assigned their rights to one Williams, the latter brought an action to recover of Hays the loss paid Parsons* Loud, alleging that the vessel was wrecked by the negligence of Hays.
    In 1889, Hays, by an amended answer, set up as a defense that, on December 13, 1888, he had recovered against the insurance company, in an action brought by ■ him against it in the New York Superior Court, the loss sustained under a policy of that company held by him.

      Held, that that judgment did not constitute an estoppel.
    That, to be available, estoppels must be mutual.
    That Williams did not represent any claim which the insurance company had against Hays, but a claim which Parsons & Loud had as part owners of the brig.
    That, if Parsons & Loud could sue Hays, the insurance company, their assignee or successor in interest could do likewise.
    Appeal by the plaintiff Paul Williams from a judgment of the Supreme Court, entered in tbe office of the clerk of the city and county of New York on the 8th day of February, 1892, upon a verdict for tbe defendant directed by tbe court after a trial at tbe New York Circuit before the court and a jury.
    The action was brought by the plaintiff, as assignee of the claim of the Phenix Insurance Company, to recover the amount of a policy of insurance paid to the firm of Parsons & Loud, because of the loss of the brig “ Emily T. Sheldon,” which the complaint alleged was wrecked through the defendant’s negligence.
    The defendant in his supplemental answer alleged :
    That on or about the 26th day of August, 1886, this defendant commenced an action against the Phenix Insurance Company in the Superior Court of the city of New York (which court had jurisdiction of the action), to recover the sum of $1,500, the amount of a policy of insurance issued by said company to this defendant upon three-sixteenths of the brig “ Emily T. Sheldon,” dated the 14th day of July, 1885, covering a period of one year from that date, against the perils of the seas and other losses, as in and by said policy stated.
    That the said Phenix Insurance Company appeared in said action and served its answer.
    That thereafter, and on or about the 5th day of December; 1888, the said issues came on to be tried, upon which trial a verdict was rendered in favor of the said Hays and against the said insurance company for $1,535.98, on which verdict a judgment was entered in said court in favor of said Hays and against the said Phenix Insurance Company on the 13th day of December, 1888, for the sum of $1,943.12.
    That the said brig “ Emily T. Sheldon ” and the loss thereof are the same as that referred to in the complaint in this action ; and that all the issues framed by the pleadings in this action, so far as the loss of the said brig is concerned, are the same as those which have been adjudicated in the said case of Hays against the Phenix Insurance Company, and have been determined in said action.
    Parsons & Loud, also part owners of the brig, were separately insured in the same company, which paid their loss October 28, 1886. This action was begun December 13, 1886.

      G. A. Black, for the appellant.

      W. W. Goodrich, for the respondent.
   Yan Brunt, P. J.:

The plaintiff, as assignee of the Plienix Insurance Company, sues to recover an amount paid by the insurance company to Parsons & Loud, which, hy such payment, became subrogated to their rights under a policy of insurance issued by the said company to them as owners of one-sixteenth of a certain brig.

The complaint alleges that the defendant was the master of the brig, and that the loss and stranding thereof was caused hy the negligence, misconduct and improper navigation of the defendant as master.

The defendant, by his supplemental answer, alleged that in an action brought by him. against the insurance company to recover the amount of his insurance upon the three-sixteenths of said brig owned by him, he recovered judgment against the company which had been affirmed by the' Court of Appeals. The single question presented is whether the plaintiff is estopped by the judgment in the case of the defendant against the Plienix Insurance Company above referred to.

Undoubtedly, a recovery by the defendant in his action against the Plienix Insurance Company upon his policy of insurance is a bar against the insurance company from setting up, in its own right, any claim against the defendant because of the loss of the vessel, because a recovery upon the policy is inconsistent with the existence of such right of action. (Doty v. Brown, 4 N. Y., 71; Castle v. Noyes, 14 id., 329; Gates v. Preston, 41 id., 113.) But the plaintiff in this action does not represent any claim which the insurance company had as against the defendant, but that which Parsons & Loud had as part owners of the vessel.

Such being the case, therefore, the judgment rendered in the case of Hays v. Phenix Insurance Company in no way operated as an estoppel against Parsons & Loud from maintaining an action upon the same ground upon which the insurance company based its defense. This is clearly so, because estoppels to be available must be mutual. (Lawrence v. Campbell, 32 N. Y., 455.)

If, therefore, Parsons & Loud were not precluded from maintaining an action against the defendant, their assignees are endowed with all the rights which they themselves possessed.

It being, therefore, the claim of Parsons & Loud which is sought to be enforced in this action, and the plaintiff being merely their successor in interest, lie would seem to be entitled to all the rights which they could have enforced against the defendant. The mere fact that the intermediary was the Phenix Insurance Company in no way affects this right, because lie represented a different and distinct interest from that which the insurance company represented in the action of Hays against it. (Mersereau v. Pearsall, 19 N. Y., 109.)

Ye think, therefore, that the previous judgment did not operate as an estoppel, and the plaintiff had a right to try the issue presented only upon the merits.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide event.

O’Brien and Andrews, JJ., concurred.

Judgment reversed and new trial ordered, with costs to appellant to abide event.


author: Yan Beunt, P. J..

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JAMES F. McNEARY, Respondent, v. CHARLES F. MacLEAN and Others, Composing the Board of Police Commissioners of the City of New York, Appellants.

      Certiorcvri — to review a detwmination — a defect in the time of issuing the writ apparent on the face of the petition — writ dismissed.

    Section 2133 of the Code of Civil Procedure, contained in the article relative to the writ of certioi'ari, is as follows: “Any other order may he made or proceeding taken in the cause in relation to any matter not provided for in this article, as a similar proceeding may he taken in an action brought in the same court.”
    Section 2125 of the same Code provides that a writ to review a determination must be granted and served within four calendar months after the determination becomes final.
    In a proceeding brought to review a determination by the Board of Police Commissioners of the City of New York, it appeared upon the face of the petition that the certiorari had not been granted and served in the time above mentioned.
    The board moved to dismiss the writ, which motion was denied.

      Held, that such denial was improper.
    That as it appeared upon the face of the petition that the statutory time had expired, the court needed no other proof of that fact.
    That the board was not required to make a return and set up the fact in it.

      Tliat the Code of Civil Procedure did not contemplate any pleadings being served in proceedings by certiorcm to review the action of a quasi judicial body, the return being conclusive.
    That section 2188 of the Code referred only to such proceedings as might be requisite and proper, after a return had been made, for the purpose of bringing the same on for review, or for having the return made more specific, where that was proper.
    That in proceedings by certiorari only the merits are considered at General Term, and any incidental motion should be made at Special Term.
    Appeal by the defendants, Charles F. MacLean, John McClave, James J. Martin and John R. Yoorhis, composing the Board of Police Commissioners of the City of New York, from an order of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 17th day of October, 1891, denying their motion to vacate a writ of certiorari, issued to review their action in the matter of the removal from the police force of the police department of the city of New York of James F. McNeary, formerly a member of said force.

      C. F. Gollins, for the appellants.

      A. S. Warner for the respondent.
   Yan Beunt, P. J..

This motion was founded upon the fact that it appeared, upon the face of the petition, that the certiorari had not been granted and served within, the time provided by section 2125 of the Code.

It is conceded that such was the fact, but it is claimed that such objection must be raised by answer in consequence of the provisions of section 2133 of the Code, which is as follows: “ Any other order may be made or proceeding taken in the cause in relation to any matter not provided for in this article as a similar proceeding may be taken in an action brought in the same court.”

It is clear that this section cannot be held to require pleadings upon a writ of certiorari, because a certiorari is a writ of review exclusively and the return to the writ must be taken as conclusive and acted on as true. If false, in fact, the remedy is an action for a false return; and if insufficient in form, by applying for a further and more specific return. (People ex rel. Sims v. Fire Commissioners, 73 N. Y., 437.)

The provisions of the section referred to apply undoubtedly to such proceedings as may be requisite and proper after a return has been made for the purpose of bringing the same on for review or having the return made more specific if such relief is proper. But there is no way in which the question as to whether the court should have granted the writ can be brought up, except upon a motion to set aside the'writ.

It is urged that the only method in which the appellants could hi aim the advantage of the statute of limitations contained in section 2125 is by setting the same up in the return. It is apparent that such cannot be the rule, because the Code requires no defense to the issuance of the writ to be returned, but simply the proceedings upon which the judgment of the inferior tribunal was founded. Where it appears upon the face of the petition that the statute has run, it is not necessary that the fact should be brought before the court in any other manner.

It is to be observed that the writ of certiorari issues out of the Supreme Court, and that the return is matje to the Supreme Court and is filed with the county clerk; and it is only the hearing of the merits which is to be had at the General Term. All incidental motions should be heard at the Special Term.

We think, therefore, that the court was in error in denying the motion and the order should be reversed, with ten dollars costs and disbursements, and the motion granted with ten dollars costs.

Andrews, J., concurred.

Order reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.


author: Per Curiam :

text:
    THE ATTLEBORO NATIONAL BANK, Respondent, v. JACOB WENDELL and Others, Appellants, Impleaded with Others, Dependants.

      Attorney, suing for a corporation which has no existence, is liable for costs.

    An attorney, acting under a mistake, but in good faith, brought an action in the name of a foreign corporation which, at the time the action was commenced, had had no existence for several years. The action resulted in a judgment being recovered against the plaintiff for costs.

      Held, that having proceeded without authority the attorney must pay the judgment.
    That it was his duty to have required actual authority from an existing principal before bringing the action.
    Appeal by the defendants, Jacob Wendell, George P. Stockwell and D. P. W. McMullen, from an order of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 6th day of April, 1892, denying their motion to require the plaintiffs attorney to disclose to their attorneys what bank, if any, really was the plaintiff in the action, and, if there was no such bank, to show cause why the plaintiffs attorney should not himself pay a judgment for costs rendered in the action in favor of such defendants.

      O. A. Strong, for the appellant.

      J. J. Adams, for the respondent.
   Per Curiam :

It is alleged in the moving affidavit, upon information and belief, ' and not denied by the opposing affidavit, that this action was brought in the name of a bank which went out of existence a number of years before the suit was instituted.

Under these circumstances, there is no plaintiff in existence from whom the defendants can collect the costs awarded to them; nor was there any such plaintiff in existence when the action was brought. It follows that the attorney who inadvertently brought the suit, and thus subjected the defendants to the litigation which has resulted in this judgment for costs against the plaintiff, should be required to pay such costs.

There is here no question but that the attorney acted in perfect good faith in bringing the suit; and his liability rests upon no fact which affects, in the slighest degree, his professional position. He was himself practically imposed upon by others who professed to represent this non-existent bank. Believing in their authority and in the existence of the client, he brought the suit which has resulted in this bill of costs. His liability rests upon the fact that, as an attorney, he has brought the defendants into court without authority from any existing principal or client, and has subjected them to the litigation which has resulted in the manner indicated. As the defendants have succeeded in that litigation, it will not do to say that the costs awarded against the non-existent plaintiff shall forever remain unpaid and unsatisfied. If the attorney had required, from an existing principal, actual authority to bring the suit, he would not have been in the position in which he now stands. Having proceeded without such authority, the reasonable conclusion is that he must satisfy the judgment which the defendants have secured against his assumed principal.

The order should, therefore, be reversed and an order made requiring payment of the judgment for costs, together with the disbursements of this appeal.

Present — Yan Brunt, P. J., O’Brien and Barrett, JJ.

Order reversed and an order made requiring payment of the judgment for costs, together with the disbursements of this appeal.


author: Barrett, J.:

text:
    WILLIAM ENGELSDORF, Respondent, v. HENRY B. SIRE, Appellant.

      Landlord and tenant — failure to give possession of the demised premises to the tenant — damages, when too remote, when speculative.

    Henry B. Sire rented premises to William Engelsdorf, but, because of an existing lease which he had given one Merrick, he was unable at the commencement of the term to give Engelsdorf possession. He allowed him, however, to occupy temporarily adjoining premises: but finally Engelsdorf, failing to get possession of the leased premises, brought an action against Sire for the recovery of the damages caused to him thereby.

      Held, that it was error to allow Bngelsdorf to recover for shelving and gas fixtures put by him into the temporary premises'; that such expenditures were not a proper measure of the damages growing out of Sire’s failure to put the tenant into possession of the demised premises.
    A witness, called in behalf of the tenant, testified, first, that there was no difference between the actual rental value of the premises demised and the rent reserved in the lease. He stated, however, that, taking into consideration the purpose for which the tenant intended to occupy the premises,there was a difference of $1,500, at the same time admitting that he had never been engaged in a similar business; and that he knew nothing personally of the tenant’s business or of his loss.

      Held, that the testimony was speculative and would not support a recovery based upon it.
    Appeal by the defendant Henry B. Sire from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 31st day of October, 1891, upon a verdict for the plaintiff of $750, after a trial at the New York Circuit before the court and a jury; and also from an order, entered in said clerk’s office on the 5th day of November, 1891, denying a motion for a new trial made upon the minutes of the court.

      Albert I. Sire, for the appellant.

      Da/oid Gerber, for the respondent.
   Barrett, J.:

This action is for damages for the defendant’s failure to give the plaintiff possession of certain leased premises. No question is raised upon this appeal as to the right of action. Indeed, it appears that the plaintiff was kept out of possession because of a lease given by the defendant to one Merrick, a previous under-tenant of the premises. The only questions, therefore, are as to the damages awarded at circuit. Two objections are made by the appellant; first, as to the damages generally, and, second, as to the admission of evidence with respect to special expenditures. This latter objection was, we think, well taken. It appears that when the plaintiff found it impossible to give immediate possession of the demised premises, he permitted the defendant temporarily to occupy the adjoining premises. This was in view of certain proceedings which were taken to dispossess Merrick and in the expectation that such proceedings would speedily result in giving the plaintiff possession. While the plaintiff was thus temporarily in occupation of the adjoining premises, he expended some money thereon which he deemed necessary for the convenient transaction of his business. The learned judge, under the defendant’s objection and exception, permitted proof of the expenditures thus mad e for shelving and gas-fixtures. These expenditures were not the direct' and legitimate result of the defendant’s failure to give possession of the demised premises, nor did they flow naturally from the violation of his agreement. The cases of Driggs v. Dwight (17 Wend., 71), and Giles v. O'Toole (4 Barb., 261), are cited in support of the ruling; but these cases merely hold that the lessee may, under such circumstances, recover the expense of removal to the leased premises. The general rule, as settled in this State, undoubtedly is that where the lessor fails to give possession of the leased premises, the measure of damages is the difference between the actual rental value and the rent reserved. (Trull v. Granger, 8 N. Y., 115; Pumpelly v. Phelps, 40 id., 60; Dodds v. Hakes, 114 id., 265.) Special damages, such as expenses for removing to a remote farm, are not to be allowed. (Williams v. Olyphant, 3 Ind., 271.) Nor are conjectural profits expected from the use of the demised premises. (Dodd v. Hakes, supra; Alexander v. Bishop, 59 Iowa, 572; Newbrough v. Walker, 8 Gratt., 16.) The plaintiff here might as well have claimed for the expense'of any other alterations or improvements made by him in these adjoining premises.

Such expenses had no just relation to the defendant’s breach of covenant. They related solely to the defective condition of the other premises. There is no exception to the general rule of compensation nor extension thereof, in this class of cases, which would cover these items of damage. The same observation applies to the damages generally which were awarded to the plaintiff. They were wholly unsupported by competent evidence. A single real estate expert testified, in substance, that there was no actual difference between the rental value and the rent reserved; that is, between the ordinary rental value in the market and such reserved rent. He stated, however, that, in his judgment, the value of the lease was $1,500 over and above the rent reserved, taking into consideration the intended occupancy of the premises “ as a notion and dry-goods store.” Upon cross-examination he explained what he meant by this statement, as follows :

“ Q. Then, why did you tell this jury that the value of this lease was $1,500 over and above the rent that was to be paid there ? A. Because the loss sustained by not having that as a business place during those three years would, in my judgment, amount to that.

“Q. Upon what do you base your judgment as to the loss? A.. In obtaining the store.

Q. That is, he lost $1,500 in his business, is that what you mean to tell the jury ? A. He lost an equivalent to that by not having it for his business.”

This was further emphasized by his subsequent testimony, namely:

“ Q. Will you state to the jury what you took into consideration ? A. The loss which the man sustained by not having that location for that special business in which he is engaged.

££ Q. Have you any personal knowledge as to what loss he sustained? A. No; I haven’t the exact facts.

££ Q. Do you know anything of it yourself, except what was told you? A. Yes.

££ Q. Do you mean to testify that you have personal knowledge as to what loss he sustained ? A. Not his personal loss, but the loss which a man would sustain in that business on that street.

“ Q. I understood you as having testified that you knew nothing about that business and never was engaged in that business, is that correct? A. Yes; that is correct.

££ Q. And that you have no personal knowledge as to the loss that he sustained in that street, is that correct ? A. Not from him; no.”

The witness thus practically speculated upon the special profits which such a business location would be apt to produce. He repeatedly said that the fair rental value of the premises was the amount of the rent reserved in the lease. Yet he insisted that they were worth more to the plaintiff than such fair rental value. He did not claim that they would rent for more as a notion and dry-goods store, or, indeed, for any particular business. His claim was that they' were worth $500 per annum more for such a business than their real or market-value. If, however, the plaintiff could have obtained no advance upon the rent reserved, even from people desirous of occupying the premises “ as a notion and dry-goods store,” then it is difficult to perceive how they could be worth more to him except upon the theory of increased business and greater gains. Plainly, this latter is what it comes to, and it is clear that the rule which disallows speculative damages cannot be thus evaded.

Ve think this evidence was insufficient to justify the verdict which was rendered, and upon this ground, as well as for the error in the admission of the special items first considered, the judgment and order appealed from should be reversed, and a new trial granted, with costs to appellant to abide the event.

Yan Brunt, P. J., concurred.

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


text:
    JOHN HOPKINS and Another, Respondents, v. ANNA FREY, Appellant, Impleaded with Others, Dependants.

      Foreclosure — failure of a guardian ad litem to answer — it does not affect the validity of the proceeding — a mistake of law.

    In an action, brought in 1891, to set aside a quit-claim deed, executed in 1883 by the plaintiffs to one Sanguinetti, it appeared that in 1875 a mortgage covering the premises in question was foreclosed, in which action the plaintiffs, then infants, had an interest; that they were served with the summons, and that a guardian ad litem was regularly appointed for them; that the guardian did not answer or in any manner ever appear in the foreclosure action; that the purchaser on the sale conveyed to Sanguinetti, who, to cure the defect arising from the guardian’s failure to answer in 1883, procured from the plaintiffs, then of age, a quit-claim deed or release.
    In this action, brought to set aside this deed, a grantee of Sanguinetti interposed a demurrer to the complaint.

      Held, that the complaint stated no cause of action.
    That under the Code of Procedure (§ 134, sub. 2; § 116, sub. 2), as well as under the Code of Civil Procedure, the court, by the appointment of the guardian ad litem, acquired jurisdiction, and that the responsibility of the party foreclosing the mortgage then ended.
    That, if the guardian failed to do his duty, this was a matter which concerned only the infants, and did not affect the validity of the foreclosure.
    'That the statements of Sanguinetti, at the time the release was procured, to the effect that the defect was only technical, were not false, but correctly stated the' law, and that in any event the plaintiffs were of full age, and were as competent as Sanguinetti to decide upon the validity of the foreclosure.

      Appeal by the defendant, Anna Frey, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the-city and county of New York on the 1st day of March, 1892, overruling her demurrer interposed to the amended complaint, after a trial by the court at the New York Special Term.
    The action was begun in 1891.

      A. Ií. Dyett, for the appellant.

      I. Newton Williams, for the respondents.
   Barrett, J.:

The demurrer brings up the single question whether the complaint states facts sufficient to constitute a cause of action. Stripped of verbiage, the complaint sets forth that in the year 1875 the executors of one Landgrebe commenced an action in this court for the foreclosure of a second mortgage upon certain property in which the plaintiff John Everett Hopkins and his brother Frank Hopkins (since deceased) were interested. John Everett and Frank Hopkins were, in fact, the heirs-at-law of the mortgagor, Sarah E. Hopkins,, who died in the year 1874. The present plaintiff, John Hopkins, was her husband. These heirs-at-law were minors when the mortgage was foreclosed, and the court appointed a guardian ad litem for them. The plaintiff then proceeded to judgment, and in October of the same year the property was sold by a referee to Mr. Christopher Fine. In November, 1875, Fine sold the property to the defendant. Sanguinetti, who, in the year 1884, conveyed a part of it “'by way of gift or sale ” to the appellant Frey. It is alleged that the guardian ad Utem for John Everett and Frank Hopkins did not appear,, answer or demurr in the foreclosure suit, and that he failed to-perform any of the acts and duties required of him by the statutes- and rules of court then in force. This is the only material fact, which is alleged as against the foreclosure judgment. All else is-either characterization or conclusion, e. g., that the court never-acquired jurisdiction as to the minors, and that the judgment was void, etc. The statement that the referee never qualified or took an oath is immaterial, as no oath was called for after his appointment, nor was he required to give a bond or to qualify in any other formal maimer. The court acquired jurisdiction by the service of the summons upon the infants, as provided by law, and after such service was completed, by the appointment of a guardian ad litem. Such is the practice now and such was the practice in 1875 under the old Code. (Code of Procedure, § 134, subd. 2; §116, subd. 2.) The plaintiff in the foreclosure suit was bound to bring the infants within the jurisdiction of the court, to see to it that they were duly served with process and that a guardian ad litem was properly appointed. There, however, his responsibility ended. He was not bound to see to it that the guardian thus appointed did his full duty to the infants according to the rules of practice. If the guardian failed in these particulars, he was liable to his ward, but the judgment of foreclosure was not invalidated by such negligence to which the plaintiff was not privy and which he could not control. There is no averment in the present complaint that the infants were not duly served with the summons as required by law, nor that they had any defense to the action, nor that the judgment of foreclosure could, even with entire diligence, have been avoided. Consequently, it must be assumed that the infants were duly served and that they had no defense.

Thus we have simply the naked fact that the guardian failed to interpose the only answer which he could have interposed, namely, the formal one which submits the rights of the infants to the court; It is upon this slight ground that the plaintiffs now, after the lapse of sixteen years, seek a decree which will enable them to question this foreclosure judgment. The neglect of the guardian to interpose a formal answer, as required by the practice, was a mere irregularity which the court would have cured by permitting such an answer to be filed at any time nune pro tune. (Althause v. Radde, 3 Bosw., 410; and, see, Croghan v. Livingston, 17 N. Y., 218, and Crouter v. Crouter, N. Y. Law Jour., April 16, 1892; 17 N. Y. Supp., 759.)

The case made by the complaint is, however, weaker than if it were a direct attack upon the foreclosure judgment. It is further alleged that in May, 1883, and after John Everett and Frank Hopkins became of age, the defendant Sanguinetti secured from them a quit-claim deed of this same property, in consideration of a trifling sum of money, and it is this quit-claim — not the foreclosure judgment — which is here sought to be set aside. The plaintiffs charge that the quit-claim was obtained from them by fraud, in that Sanguinetti represented that they had no interest in the property; that their rights, had been cut off by the foreclosure in 1875; that she, Sanguinetti, was about to sell the property; that it was necessary to correct some clerical error in the foreclosure proceedings, which the court would do without the signatures of John Everett and Erank Hopkins, but that this would take a little time, and that she would pay $100 to avoid the delay and to secure the same end by their release. They agreed to this, took the money and signed the quit-claim. This is characterized as a fraud and the representations are alleged to have been untrue. But the fact is quite the reverse. Every word Sanguinetti uttered was true, and if the plaintiffs had taken the trouble to look at the record they would have, seen that what she said was quite accurate. Her facts were true, even if she erred in her legal conclusions. The plaintiffs now say that they did not discover the falsity of her representations until 1891, but they do not tell us why they failed to make this easy discovery (that is, easy if the representations were untrue) for upwards of eight years. The record, which was the basis of the whole story, was in existence when Sanguinetti spoke, and it has been in existence ever since.

The record, so far as appears from any averment in this complaint, really disclosed the truth of Sanguinetti’s statement, but were it otherwise, the Hopkins brothers were no longer minors when they were asked to sign the release. They were then men of full age, and had the same opportunity as Sanguinetti to determine whether the judgment of foreclosure was valid or invalid. It is clear, therefore, that no fraud, as matter of fact and as distinguished from adjectives and idle invective, is charged with regard to either the foreclosure proceedings or the release. None upon Sanguinetti’s part. None upon her transferees, who became transferees in reliance upon the recorded quit-claim. As to these transferees, not even notice of any alleged fraud in procuring the quit-claim is alleged. The complaint fails to state facts tending to constitute a cause of action, and it is wholly without merit.

The interlocutory judgment should, therefore, be reversed, with costs and an interlocutory judgment granted sustaining the demurrer, with costs, with leave to the plaintiffs to amend their complaint within twenty days, if so advised, upon payment of the costs of the Special and General Terms.

Yan Brunt, P. J., and O’Brien, J., concurred.

So ordered.