text:
    DAVID HEXTER, Plaintiff and Respondent, v. CHARLES KNOX, Defendant and Appellant.
    1. MEASURE OF DAMAGES.
    1. Lessor and lessee.—Hotel.
    1. Breach of covenant to put in possession,

      a. When a lessor owning a building and being about to erect a new one adjoining it and to be connected with it, leases the old one and the one to be erected, for hotel purposes, covenanting to make certain repairs in some of the rooms in the old building and to finish the new building (which should contain a certain number of rooms), by a specified time, and that such rooms should be ready for occupation, and possession thereof should be given by such specified time, and the rooms were not ready for occupation until some time after the specified period,
    Held,
    the evidence showing that rooms in a hotel, both furnished •and unfurnished, have their value for use, varying with certain periods of the year, which is known and provable, that,
    1. The lessee's measwre of damages was the proved value of
    the use of furnished rooms for such of the rooms for which he had furniture, and for the others the proved value of unfurnished rooms.

      a. This measure is not open to the objection that it involves the allowance of contingent profits for the use of the furniture, or of profits contingent on the use of the hotel by guests.
    3. The allowance for the value of the use must be varied according to the season of the,year.
    H. LESSOR AND LESSEE.
    1. Breach or covenant by lessor to repair, to restore, to put in order, or to replace old appurtenances with NEW.
    1. Option of lessee.

      a. He has the right to make the repairs, &c., being judicious and reasonable in his expenditure, and recover the expenses from the landlord,
    or

      Omit to make the repairs, &e., and sue for his damages.

    HI. ESTOPPEL.—WAIVER.
    1. What will not operate as.

      a. The fact that a pa/rt/y who has an interest in having certain work well done, and the materials furnished therefor of a certain quality, stands by and sees work done and materials used of a character inferior to that called for, will not operate as an estoppel or waiver of his light to thereafter object, where it does not appear that the prn'ty has sufficient knowledge to enable him to detect the defects and make the proper objections thereto.
    IV. CONTRACT.—DELAY IN COMPLETION.—STRIKE OP WORKMEN.
    1. Dailages caused by, what not a defense to.
    . a. The fact that a part of the delay which occurred after the-time limited for the completion was caused by a st/rike of the workmen which took place after that time, is no defense to-a claim for damages suffered by that part of the delay.

    Before Freedman, Curtis, and Speir, JJ.

      Decided February 1, 1875.
    Appeal from judgment.
    Prior to April, 1871, the plaintiff was in possession,, as tenant of the defendant, of the hotel building at the northwest corner of Broadway and Spring-street, known as the “ Prescott. House,” and of the adjoining building, Ho. 97 Spring-street, in the city of Hew York, also used in connection with same for hotel purposes. On April 28, 1871, the plaintiff and defendant executed a lease, by which defendant demised to the plaintiff the “Prescott House,” and the five' stories of a new building abont to be erected by him on the lots Hos. 97 and 99 Spring-street (with certain exceptions stated in said lease), for the term of eight years, from May 1, 1871, at the annual rent of twenty-two thousand five hundred dollars, payable quarterly. The defendant covenanted that the portion of the. building 97 and 99 Spring-street, demised to plaintiff, should contain five stories, should be built in a substantial and workmanlike manner, and of good materials, according to the plans and specifications of D. & J. Jardine, already prepared, and should contain gas-pipes leading from the street level to all the halls and rooms thereof, and water-pipes with proper connections for the supply of all the rooms and halls of the said new building; and that the said new buildihg should be finished and ready for occupation, and possession thereof given to the said plaintiff on or befóse September 1. 1871 Also, that the defendant would, on or ovid/ti tiepiember 1, 1871, complete and finish all the alterations and repairs to the old part of the premises then in plaintiff’s occupation, which were included in a specification made by D. & J. Jardine.
    The complaint alleges that the new building was not ready for occupation, or possession thereof given to plaintiff on September 1, 1871, nor for five months thereafter. That the new building was not finished in a substantial and workmanlike manner, or of good materials, and did not contain water-pipes for the supply of all the rooms. That defendant did not, on or before September 1, 1871, finish the alterations or repairs to the old building. That defendant failed to do several things called for by the specification made by I). & J. Jardine, and claimed he had expended fifteen thousand dollars in the performance of the work agreed to be done by the defendant, and that the plaintiff, by reason of defendant’s defaults and omissions, had'been compelled to incur expense in completing works covenanted to be performed by defendant, and in repairing and making good the defects and imperfections in the work performed by him, to the amount of fifteen thousand dollars, and bad sustained damage by loss of custom in his business, and by labor and inconvenience by reason of defendant’s neglect and default, to the further amount of twenty thousand dollars, and demanded judgment for damages to the amount of thirty-five thousand dollars.
    There was a verdict for plaintiff for seventeen thousand one hundred and seven dollars, and from the judgment entered upon the verdict, the defendant appeals.

      William McDermot, attorney, and of counsel, for appellant, urged
    I. The rule laid down by the judge as to the measure of damages allowed profits in the hotel business. It allowed a profit on the use of the furniture, and was contingent upon the use of the hotel by guests. It gave plaintiff what he could earn by the the use of the rooms in his hotel business. Such damages can not be allowed (Griffin v. Colver, 16 N. Y. 489). There is no averment of bad faith or fraud on the part of the defendant, or that he willfully or wrongfully refused possession to plaintiff. The defendant must be treated either as a contractor who agreed to erect the new building within a specified time, or as a landlord who covenanted to give possession of the new building on the first of September. If defendant is treated as a contractor, on failure to finish the building in time, the plaintiff would not be entitled to recover the rent of the hotel furnished. That would depend upon too many contingencies. It would depend upon the style and character of the furniture and the extent to which it was furnished. The only true rule, in the absence of fraud, is to allow such damages as plainly entered into the minds of the parties, i.e., the rent of the building in the condition in which defendant was to leave it (unfurnished) (Ruff v. Rinaldo, 55 N. Y. 664). If defendant is to be treated as a landlord who failed to give possession of the premises at the time agreed upon, then plaintiff would not be entitled to recover for the use of the rooms furnished, under the rules established by the following cases: Giles v. O’Toole, 4 Barb. 261; Kinney v. Watts, 14 Wend. 41; Peters v. McKeon, 4 Den. 549; Conger v. Weaver, 20 N. Y. 146; Bush v. Cole, 28 Id. 270; Academy of Music v. Hackett, 2 Hilt. 217; see also, Noyes v. Anderson, 1 Duer, 353; Blanchard v. Ely, 21 Wend. 348; Morris v. Phelps, 5 Johns. 49; Guthrie v. Pugsley, 12 Id. 126; Wager v. Schuyler, 1 Wend. 553; Trull v. Granger, 4 Seld. 115. The case of Myers v. Burns (33 Barb. 401, and 35 N. Y. 269), on which plaintiff relies, does not apply to this branch of the case. That was an action for damages for not making repairs to a hotel used as a hotel. It does not appear that the distinction between rooms furnished and unfurnished was raised.
    II. In respect to the loss of the use of rooms in the old part, caused by the failure of defendant to make the repairs agreed upon properly, or in time. (1) The charge of the court was erroneous for the reasons above stated. (2) The refusal of the court to charge as requested—“That if plaintiff knew of a defect which caused damage he was bound to have it repaired as soon as it could reasonably be done. If he did not do so, and damage subsequently accrued, he can not recover for such subsequent damage;” also—“That the plaintiff can not recover for the use of the rooms-which were injured by leakage or settling except for the-time it would necessarily take to repair the rooms,” was-error. The law imposes upon a party subjected to injury from a breach of contract the active duty of making reasonable exertions to render the injury as light as possible ; and if the injured party, through-negligence or willfulness, allows the damages to be unnecessarily enhanced, the increased loss justly falls-upon him (Hamilton v. McPherson, 28 N. Y. 72; Baker v. Drake, 53 Id. 211; Shannon v. Comstock, 21 Wend. 461; Heksher v. McCrea, 24 Id. 309).
    III. The court erred in charging the jury that the value of the rooms must be varied according to the season of the year (Griffin v. Colver, 16 N. Y. 489).
    IV. The court erred in refusing to charge, as-requested by defendant’s counsel, “That if plaintiff was present during the performance of the work, and saw the quality of the materials and workmanship, and made no objections to the quality of the work and materials, he can not after the work is done, make-such objections (Sinclair v. Tallmadge, 35 Barb. 602; Wyckoff v. Myers, 44 N. Y. 143).
    V. The court erred in refusing to charge as requested by defendant’s counsel, in respect of the coal vault.
    VI. The court erred in ’ refusing to charge as-requested by defendant’s counsel, in respect of the boiler. By the contract defendant had the option to-either remove the boiler in rear of the hat store, or put in a new one. The plaintiff was bound to do-that which would cause the least damage to defendant, if equally good, within the principle of the cases cited under second point.

      Buckham, Smales and Walker, attorneys, and
      Stephen A. Walker, of counsel, for respondent, urged:
    I. The charge of the judge as to the measure of damages was correct (2 Greenl. Ev. 210; Brown on Com. Law [631, 640], Am. ed. 1856; Griffin v. Colver, 16 N. Y. 489, overruling the doctrines in Sedg. on Dam. ch. 3, p. 57, ed. 1868; Myers v. Burns, 35 N. Y. 269: Ruff v. Rinaldo, 55 Id. 664).
    II. The injury complained of being voluntary and wrongful, the plaintiff was under no obligation legal or moral, to take any steps to mitigate the consequences to the defendant (Heany v. Heany, 2 Den. 625).
   By the Court.—Curtis, J.

The questions presented by the defendant arise chiefly upon exceptions to the charge, and refusals to charge, of the judge at the trial, and relate mainly to the rules of damages charged by the judge.

The plaintiff ’.s claim for damages was of a threefold character.

1. Damages for loss of the use of rooms in the new building by reason of its not being finished in time.

2. Damages for the loss of the use of rooms in the old part caused by the failure of defendant to make the repairs agreed upon.

3. Money expended by plaintiff in making repairs agreed to be done by defendant.

The court charged that for such of the rooms as the plaintiff had furniture for, he was entitled to the value of the rental of furnished rooms for hotel purposes ; and that for such of them as he did not have furniture for, to the value of their use and occupation as rooms to be let without furniture. Exceptions were taken to this by the defendant.

The terms of the lease, the provisions for the arrangement of rooms, and the entrance to the new •'building from the old, and the supply of water and steam pipes from the old building to the new, indicate that it was in the contemplation of the parties when the lease was made that the new building was designed as a hotel and for no other purpose, and as such to be used in connection with the old building.

There was evidence that the plaintiff had on storage in a large room of the old Prescott House, all the furniture removed from the former four story house, 97 Spring-street, and had also, for a considerable . period, all the furniture removed from the rooms in the old Prescott House, which were uninhabitable from leakage. „

The defendant objects to this instruction to the jury on the ground that the rule laid down by the judge, allowed profits in the hotel business; that it allowed a profit on the use of furniture, and was contingent upon the use of the hotel by guests, and that it gave plaintiff what he could earn by the use of the rooms in his hotel business, and that it is based upon uncertain and contingent profits which the law excludes.

This is not a just criticism of the rule of damages stated by the judge in respect to the loss of the use of these rooms, or of the effect of such rule. That rule simply instructed the jury to give the plaintiff that compensation for the loss of the use and occupation of those rooms for which he had furniture, as the evidence showed the use and occupation of such rooms furnished for hotel purposes was worth, and also for those rooms for which he did not have furniture, such compensation as ' the evidence showed their use and occupation was worth.

It was right that the plaintiff should be compensated for the loss of the use of the rooms of which he was deprived by the defendants’ default. The evidence shows hotel rooms furnished, have their value for use varying with certain periods of the year. The value of such use can be shown like the value of the use of any other property. The premises were leased by the defendant to the plaintiff for hotel purposes, which contemplates the provision of suitable furniture for the rooms for the use of such persons as the plaintiff in his business as a hotel keeper should let them to, and when deprived by the defendant of the use of a part of them he should be compensated by being allowed the proved value of such use for such purpose. This measure of damages is not based upon the incident of a profit upon the use of furniture, if such there is, nor upon any contingent profits or contingent use of the hotel by guests, but upon the fair market value of the use of furnished hotel rooms. In all large civilized communities the use of this description of rooms prevails extensively, and necessarily has a value known and easily proved.

The same principles apply to that part of the charge, where the court instructed the jury, that the plaintiff as to such rooms as he did not have furniture for, was entitled to the value of the use and occupation of those rooms to be let without furniture, as it was shown to them by the evidence.

The decision in Myers v. Barnes (33 Barb. 401, and affirmed 35 N. Y. 269) sustains the rule indicated by the court.

The court charged substantially the same in respect to the plaintiff’s loss of the use of the rooms in the old part of the hotel caused by defendant’s failure to make the repairs he covenanted to make properly and in time. The defendant excepted to this, but the same principles must apply that governed in regard to the rooms in the new part.

The defendant claims that the judge erred in charging the jury that the value of the rooms must be varied according to the season of the year. The evidence showed that at certain periods of the year the value of the use of the rooms was much greater than at other periods, audit was just to both parties that the jury should be so instructed.

Tbe defendant excepted to the refusal of the court to charge “That if plaintiff knew of a defect which caused damage, he was bound to have it repaired as soon as it could reasonably be done, and if he did not do so and damage subsequently accrued, he can not recover for such subsequent damage.” The claim of the plaintiff was for damages occasioned by the defendant’ s failure to comply with his covenants, and when the defendant failed to make the repairs and restorations called for, the plaintiff had the usual option of a tenant, either to make the repairs in the exercise of his best judgment, being judicious and reasonable in his expenditures, and recover the expenses incurred from the landlord, or else to omit to make the restoration and repairs himself, and sue for his damages (Myers v. Burns, 33 Barb. 407). The first remedy may be beyond the ability of a tenant, and without the last he would be left remediless. Neither is there force in the objection that if the plaintiff, the tenant, wa,s present during the performance of the work, and saw the quality of the materials and workmanship, and made no objection, he waived his right to object afterwards. Few tenants, and in fact, few individuals in the community, have such a knowledge of the work and materials involved in the plumbing, steam supply pipes, and other features connected with the construction and fixtures of a large hotel, that their presence during the performance of the work and seeing the materials would enable them to make proper objections in reference to any defects. The law does not impose any' such obligation upon a tenant, especially where it involves what would tax the ability of an accomplished expert.

The defendant also claims that the judge erred in refusing to allow evidence of a strike on the part of the workmen after September 1. This was after the period within which the defendant was to full hi the agreement, and whether there was a strike or not, during his default, has no bearing upon the issues of the case. If the defendant had wished to protect himself from the consequences of such contingencies, he should have done so by a provision in his agreement.

As the case does not contain the plans and specifications for the new building referred to in the testimony, and in some of the exceptions, and as they have been brought in no other way to the attention of the court, it is difficult to pass upon the exceptions to which the omitted documents apply, and they will have to be disregarded on this appeal.

The defendant objected to the charge of the judge in respect to the use of the coal vault. The judge restricted the jury to such damage as the plaintiff had shown from not having been put in possession, excluding all claim for increased price paid in consequence of being compelled to purchase his coal at retail prices. The defendant excepted to the refusal of the court to •charge that the plaintiff was only entitled to recover for the use of the coal vault for such length of time as it would take to clear it out, and to such expense as would have been required to do that.

There was nothing in the terms of the lease to require the tenant to clean out the rubbish and other contents of the coal vault to get possession of it, nor was there any such duty imposed upon the tenant otherwise. The principles governing this exception and that in respect to that part of the charge in relation to plaintiff’s putting in a new boiler, have already been considered, and they can not be deemed to have any weight.

The defendant excepted to the refusal of the judge to charge, that if the plaintiff failed to pay his rent when it became due, he could not recover for any damages after such non-payment.

This defense was not interposed by the answer, which set up a non-payment of rent for the quarter expiring November 1, 1871, as a counter-claim. The reply sets up the pendency of an undetermined suit brought by the defendant against the plaintiff to recover this quarter’s rent. This is the only evidence in respect to the non-payment, and as the counter-claim was withdrawn at the trial everything on that subject may be considered out of the case. The question, but for the withdrawal of the counter-claim, could have been determined at the present trial.

These constitute the exceptions in the case, to which the attention of the court was chiefly called at the argument. In looking through the case, there are-many exceptions to be found, but none that constitute a sufficient reason for granting a new trial.

The judgment appealed from should be affirmed*, with costs, to respondent.

Freedman and Speir, JJ., concurred.


source: Caselaw Access Project

author: By the Court.—Curtis, J.

license: Public Domain

text:
    JOHN JACOB ASTOR, Plaintiff and Respondent, v. THE MAYOR, &c. OF THE CITY OF NEW YORK, and ANDREW H. GREEN, Comptroller, Defendants and Appellants.
    I. ASSESSMENTS FOR LOCAL IMPROVEMENTS IN THE. CITY OF NEW YORK, INCLUDING THEREIN THE OPENING OF STREETS.
    1. Courts of equity, their power to set aside such assessments.

      a. Even though the assessment was originally invalid and void' and the act of 1872 [Laws of 1872, ch. 580, p. 1412] does, not operate to validate it, yet by force of that act as expounded by Lennon v. Mayor of N. Y. (55 JT. T. 361), . courts of equity are deprived, of the power, in suits commenced after the passage of the act, to declare such assessment void, and cancel them of record, and enjoin their collection,
    UNTIL
    the assessment is sought to be enforced by the talcing of the assessed property.

    1. What is not a seeking- so to enforce. a. The entry of the assessment in the office of the comptroller of the city, among the entries of assessments confirmed is not.

    1. This is not a proceeding for its collection.

    3. What is not sufficient evidence of proceedings HAVING BEEN TAKEN FOB COLLECTION.

      a. Admission that “proceedings have been taken towards its collection, ” is not.
    1. There can be no inference from this, either that the land has been advertised for sale, or that it has been sold, or that a lease is about to issue under Lancs of 1871, ch. 381, especially

    as the three years which must elapse before advertising for sale had not expired.
    - 3. Repeal.
    Act of 1873 has not been reapealed; its provisions have been extended by Act of May 3, 1874, ch. 313, p. 366.
    H. ASSESSMENTS.
    1. Jurisdictional questions arising out of proceedings to
    IMPOSE, EFFECT OF.

      a. Semble.—The liability of parties assessed can not be affected by nice jurisdictional questions.
    Before Monell, Ch. J., and Curtis, J.

      Decided February 1, 1875.
    This is an appeal by defendants from a judgment vacating an assessment upon plaintiff’s land and removing the entry thereof as a cloud upon plaintiff’s title, and perpetually restraining the collection of it, and also an appeal from an order disallowing defendants’ proposed amendments to the findings of fact.
    The assessment was made under an act entitled “An Act in relation to the widening and straightening of Broadway, in the city of New York, and to regulate the practice in that proceeding,” passed February 27, 1871, and confirmed by an order of the supreme court, made July 5, 1872.
    The plaintiff alleges various acts, errors, and omissions in respect to the assessment, which he claims are fatal to its validity. This is controverted by the defendants. The assessment upon plaintiff’s land amounts to about thirty-seven thousand dollars, and is for benefits claimed to have been received by the plaintiff, from the local improvement made in pursuance of the act of the legislature above referred to.

      Anderson & Young, attorneys, and Henry H. Anderson, of counsel, for respondent, urged in respect of the points passed on by the general term;
    I. The reliance of the defense is upon section 7 of chapter 580 of the Laws of 1872 (2 Laws of 1872, 1416), and the case of Lennon v. Mayor, &c. of New York (55 N. Y. 361), decided since the trial of this case, but before its decision, (a) The statute, when carefully considered, will be found to be no obstacle to the relief given the plaintiff in this case. Its provisions have reference merely and evidently to omissions to advertise, or to irregularity in advertising any ordinance, resolution, notice or provision relating to or authorizing the improvement or work for which the assessment is after-wards laid, but not applying to the assessment itself. They also have reference to omissions or neglect of duty, and to defect in authority on the part of departments or officers of the municipal government, upon whose action the assessment depends, or to mere matters of detail or regularity not affecting any substantial right. To make the act applicable to the case at bar, It is necessary for the court to hold that non-service of process in a judicial proceeding is a mere irregularity, not a substantial error. (5) In the Lennon case the only objection to the, assessment was the omission to advertise the resolution authorizing the improvement, after it had been passed by one board of the Common Council and before its passage by the other. No suggestion was made in that case of the neglect of any step in the progress of the proceedings to take the land required and to lay the assessment; but it appeared that after the resolution was actually passed, every step required by the law to be taken was taken. The court held that the act of 1872 cured the particular evil complained of. The case at bar is not controlled or affected by that of Lennon. Substantial injury has been done to the plaintiff in this case. He has been defrauded of a right secured to him by the constitution, and has had a cloud thrown upon his title to lands by proceedings conducted without regard to the statutes, the errors not appearing upon the record, but having been established in this suit by evidence and the findings of the court; and the plaintiff* is about to be deprived of his property without due process of law—for such is the result of proceedings instituted under the act of 1871. (c) It is believed that the learned judge at special term, reading the opinion in manuscript, in some measure misapprehended the decision in the case of Lennon, in holding that the objection of the want of notice by publication, though otherwise fatal, was cured by the act of 1872. Even if notices by advertisement were covered by the act, the posting of notices in hand-bills was one of the requisites for effecting service of process, and this omission of itself is sufficient to take the case out of the act of 1872. But there is nothing in the act of 1872, which deprives this court of jurisdiction to grant the relief asked for against an assessment laid by commissioners who had no power to make the same, and confirmed by a court having no jurisdiction over either the proceedings, the persons or the land assessed, by reason of fatal errors jurisdictional in character. In McDaniel v. Correll (19 Ill. 226, 228), an act had been passed to make valid a judgment when there had been a defective service of process. The court, said, “If it was competent for the legislature to make a void proceeding valid, then it has been done in this, case. This it will not be pretended they could do directly, and they had no more authority to do it indirectly by making proceedings binding upon them which were void at law.” (d) But the legislature did not intend to cover a case like this, where there was an entire want of jurisdiction to lay the assessment, or they would have made a similar provision in the seventh section to that made in the first section. In the first section the language used is, “or in case there shall have been a defect in authority, or want of authority, in the department or officer by whom any such contract shall have been made.” The use of these words-want of authority in the first section and their omission in the seventh can not be regarded as unintentional. In the first section it was intended to cover all cases, whether there was jurisdiction or not; in the seventh section it was not intended to cover cases where jurisdiction was wanting, and where assessments were invalid by reason of any “want of authority,” to lay them.
    II. The act of 1872 does not affect the remedy only, but affects a right of property, viz., the right of a citizen to hold his lands unincumbered by any cloud upon his title, (a) It must be conceded that if the act prevents the plaintiff from removing an incumbrance or cloud upon his title to lands, it affects his right to a free and undisturbed ownership of them. The assessment in question is such a cloud (See Crooke v. Andrews, Woodruff, J., 40 N. Y. 550). There can be no question but that this interference with and impediment to the plaintiff’s right and power to sell his land deprives him of Ms property (Wynehamer v. People, 13 N. Y. 396). It is manifest, that if section 7 of the act of 1872 deprives the plaintiff of all remedy against the cloud which the assessment casts upon his title under the provisions of the Law of. 1871, it deprives him of his property, since that cloud prevents his right to the free and unincumbered possession of his land and the sale thereof. This right is itself property (Green v. Biddle, 8 Wheat.; 5 Curt. 355). The construction given to section 7, violates the principles of law here declared, since it denies to the owner the right here to establish and recover that possession of his property to which he is entitled under the constitution, viz., possession unincumbered by any illegal cloud upon his title.
    III. The legislature could not take from the superior court the power to remove a cloud upon the title of the plaintiff’s land (Const, art. 6, § 12). (a) The constitution provides, “ The superior court of the city of Hew York, the court of common pleas of the city and county of Hew York, the superior court of Buffalo and the city court of Brooklyn, are continued with the power and jurisdiction they now severally have, and such further civil and criminal jurisdiction as may be conferred by law.” It can not be denied that at the date of the adoption of the above constitutional provision, the superior court, in the exercise of its equitable jurisdiction, could have removed the assessment in question, as a cloud upon the plaintiff’s title.

      E. Delafield Smith, counsel to the corporation, and William Barnes of counsel for appellants.
   By the Court.—Curtis, J.

The plaintiff, in his-complaint, prays that the entry in the list of assessments, confirmed by the supreme court, recorded in the comptroller’s office, may be, so far as it affects his lots, canceled, and' removed as a cloud upon his title, and that the assessment made upon his lots may be adjudged void, and that the defendants be restrained from collecting such assessment and from taking any proceedings therefor by sale or otherwise. The suit was commenced May 28, 1873. The assessment complained of was confirmed July 5, 1872.

The legislature, by an act passed May 7, 1872, ch. 580, relating to local improvements in the city of New York, sought to remove objections arising from defects in the proceedings imposing assessments for such local improvements, and at section 7 of the act enacts as follows:

“§ 7. No assessment heretofore made or imposed, or which shall hereafter be made or imposed, for any local improvement or other public work in the said city, already completed or now being made or performed, shall hereafter be vacated or set aside for or by reason of any omission to advertise, or irregularity in advertising any ordinance, resolution, notice, or other proceeding relative to or authorizing the improvement or work for which such assessment shall have been made or imposed, or for proposals to do the work, or for, or by reason of the omission of any officer to perform any duty imposed upon him, or for or by reason of any defect in the authority of any department or officer upon whose action the assessment shall in any manner or to any extent depend ; or for or by reason of any omission to comply with or carry out any detail of any law or ordinance ; or for or by reason of any irregularity or technicality, except only in cases in which fraud shall be shown, and in cases of assessments for repairing any street or public place, upon property for which an assessment has once been paid for paving the same street or public place ; and all property in said city benefited by any improvement or other public work already completed or now being made or performed, except as aforesaid, shall be liable to assessment for such- improvement or work ; and all assessments'for any such improvement or other public work shall be valid and binding, notwithstanding any such omission, irregularity, defect in authority, or technicality.”

The question arises as to what is the effect of this section 7 of the act of 1872, upon the power of the court to grant the relief sought by the complaint.

It has been held in Lennon v. Mayor, &c. of New York (55 N. Y. 361), that this enactment is not confined to abrogating the summary remedy afforded by the act of 1858, ch. 338, to vacate assessments, for irregularity, &c., but that it is a general prohibition applying not only to special proceedings, but to all suits commenced after January 1, 1872, and that it deprives the court of the power to grant the relief demanded in the complaint, viz. : that the assessment be declared void, and be canceled of record, and the defendants enjoined from collecting it. It appears to have been also held that this act of the legislature to deprive the courts of the power to give this relief, and the parties the benefit of this form of remedy, was constitutional and valid, and that although inconvenient to an owner to have an apparent lien upon his land, yet that he had no such constitutional right to the aid of a court of equity to remove such cloud upon his title, that the legislature might not deprive him of that particular remedy; but the court discriminatingly hold that if the assessment has not been effectually validated by this act of 1872, then the owner is protected by the constitution in resisting the taking of his property, or the title of any purchaser who may claim by virtue of a sale had under it, or its collection.

This construction in Lennon v. Mayor, &c. of New York (55 N. Y. 361.), of the effect of section 7 of the act of 1872, upon the power of the court to grant the identical relief sought by the present plaintiff in Ms complaint, would seem to dispose of this action, unless there is something to remove it beyond the scope of that adjudication, so that the court may have power to grant the plaintiff the benefit of this form of remedy. It is true the court of appeals in Lennon v. Mayor (55 N. Y. 367), sustained the complaint so far as it' sought to restrain the execution of the lease in pursuance of a sale, but this was on the ground that the act of 1872 did not purport to give validity to sales made prior to its passage under void assessments, nor could it have that effect; but in the present case there has been no sale or attempt to sell prior to the act of 1872.

The legislature, by an act passed May 2,1874, have still further extended the provisions of section 7 of the act of 1872.

There has been no repeal of the act thus held to affect the powers of the court to grant the initiative, relief sought in this action.

It is claimed on behalf of the plaintiff, that section 7 of the act of 1872 is an attempt on the part of the legislature, to interfere with the judicial department, and with the rights of citizens to be protected by the courts, and ought to be strictly construed, and that this statute applies to mere matters of detail or regularity, not affecting any substantial right, and that the failure to post notices in hand-bills, was ah omission of one of the requisites for effecting service of process, and that this omission of itself was sufficient to take the case out -of the act of 1872, and that the effect of the various omissions was to render the proceeding substantially one -that was analogous to a judicial proceeding conducted without service of process. The plaintiff farther claims that the act of 1872 did not deprive the court of jurisdiction to relieve against an assessment imposed by commissioners who bad no power to make it, and confirmed by a court having no jurisdiction, over either the proceedings, the persons, or the land assessed, by reason of fatal errors jurisdictional in character.

An assessment is but a mode of taxation within the scope of the legislative power, and is subject to be controlled by legislative action the same as any other taxation. The responsibility for it rests with the legislature and not with the courts. If it is oppressive, the people, who through their representatives impose it, control the remedy (People ex rel. Griffin v. Mayor of Brooklyn, 4 Com. 425).

It hardly seems to have been ever contemplated by the legislature, that parties upon whom any form of taxes may be imposed, shall have their liability affected by nice jurisdictional questions in respect to whether there has been a due service of notice in the nature of process upon them. To require this in all cases, might impose a burden and create exemptions, seriously militating with the public interest. But the plaintiff, even if the question as to notice to him was serious, must be regarded as having waived it by appearing and objecting to the assessment, and being heard.

In the verified objections presented by the plaintiff, it is claimed that the assessment laid on his property is too much. He does not contend but that he ought to pay some equivalent for the benefit conferred upon his property by the local improvement of Broadway. But the plaintiff by this action in effect seeks to escape all payment for this benefit to his individual property, and that the expense of it as far as he is •concerned, shall be thrown upon the city at large.

It appears that most of the other owners of oroperty, that have been assessed for the benefit of this local improvement, have paid their assessments. The plaintiff’s suit in equity to be relieved of any payment of the assessment for the benefit, is one of a class of proceedings that the legislature may have conceived to be inequitable, and to have led to the abrogation of the remedy in equity as far as lay in their power, which is, of course, limited by the constitution.

It is shown that there were meetings of the commissioners at which not more than two of their number were in attendance. There was a majority report and a minority report, that brought before the court for consideration and confirmation, the respective views and conclusions of the three commissioners, who thus all three reported to the court, that could in its discretion act upon the views indicated. The determination of the supreme court at special term was reviewed by the general term, upon appeal, and affirmed.

It is not easy to say, in view of the act of 1873, and of the plaintiff’s appearing and course in the assessment proceedings, that there were errors now fatal to the assessment. Nor is it necessary to determine the questions, whether this assessment was void, or, if void, whether it was made valid by the acts of 1873, and 1874, or either of them. Looking at it from the plaintiff’s position, and conceding that it is, for the reasons-claimed on his part, an abortive attempt to impose an assessment, it appears to come within the views expressed by Rapallo, J., in Lennon v. Mayor (55 N. Y. 366), in rendering the opinion of the court, that such an attempt and the outstanding record of it, does not deprive a plaintiff of his property, although the apparent lien on his land may be inconvenient to him, and that he has no such constitutional right to the aid of a court of equity to remove such cloud, that the legislature may not deprive him of this particular-remedy, and that the legislature has deprived the courts, of the power to give him the benefit of this remedy, and remitted him to the relief in which he is protected by the constitution when the pretended lien is sought to be enforced by the taking of his property, or to resisting its collection, or the title of any purchaser who may claim under it.

As yet no distinct step or action appears to have been taken in respect to collecting this assessment, except the entering of it in the office of the city comptroller among the entries of assessments confirmed, which is simply the outstanding record of it.

The pleadings and the evidence fail to show any other definite act than this in reference to it, so that this suit, on the part of the plaintiff, would seem to be premature at least, and no case shown entitling the plaintiff to the relief sought, unless some action has been taken that places it out of the ruling in Lennon v. Mayor (55 N. Y. 367), which remits him to assert rights secured by the constitution; and this seems to have been the view of the learned judge at special term, who also deemed that the plaintiff was entitled in this action to assert such rights in consequence of an admission on the part of the defendant at the trial here» after referred to.

It will be seen that the complaint alleges that the list of assessment as confirmed, has been recorded in the comptroller’s office, and that it is a lien and cloud upon plaintiff’s title, “and that the defendants are proceeding to collect” the same.

The answer in substance sets up that the assessment has been duly entered in the record of the comptroller’s office, and is a valid lien on the plaintiff’s title, and that it is the defendant’s duty to take proceedings for its collection, if it is not paid in conformity with the statutes; and by a general denial of all allegations in the complaint, not specifically admitted or denied, it puts in issue the plaintiff’s allegation that the defendants “are proceeding to collect ” the same. There appears to have been no evidence of any such proceedings.

The defendants’ counsel admitted, on the trial, “that proceedings have been taken towards its collection.”

This is a vague admission, that does not disclose a solitary act upon which a court of equity can exercise its discretion in granting an injunction or other equitable relief. It seems intended by implication to convey the idea to the court, that the plaintiff’s land has been advertised for sale, or that it has been sold, or that a lease is about to issue, in pursuance of Laws of 1871, oh. 381. But it is difficult to infer any of these acts, especially as the three years after confirmation of the assessment that must elapse before the comptroller can advertise the land for sale for non-payment of the assessment, had not expired when the suit was commenced.

A court is not called upon to grope in obscurity to find or to infer inequitable acts, or acts to be resisted where the case fails to show them. Looking carefully at the language of the pleadings and the admissions by the defendants, it seems that what are termed proceedings “ towards” the collection of the assessment in the admission made by the defendants, in reality consist in the entry of the assessment in the office of the comptroller of the city among the entries of assessments confirmed, which is the only actual proceeding shown to have been taken in respect to it, prior to the commencement of this action, and which, at most, constitutes simply the making of an “outstanding record ” of it.

This leaves the case one that is governed by the decision in the court of appeals referred to, where the right to the remedy sought, in the present form, and under the existing circumstances by the plaintiff, appears to have been carefully considered and deemed to have been abrogated as to this class of suits and proceedings commenced after January 1, 1872.

The judgment appealed from should be reversed (and judgment absolute for the defendants), with costs.

Monell, Ch. J., concurred.


text:
    SIDNEY DILLON, et al., Plaintiffs and Appellants, v. JOHN S. MASTERTON, Defendant and Respondent.
    In a contract for work and labor, where there is a provision that the work should be completed by a certain date, and be paid for upon completion, and such work is not completed at the time limited for its performance, but is proceeded with afterwards, with the assent of the party for whom the work is being done, a recovery may be had for the work done according to the rate of compensation fixed by the contract.
    In such a case “time is not deemed to be of the essence of the contract.”
    When “time is of the essence of the contract,”it must be made to appear so in express terms, and not be left for inference or presumption from doubtful expressions therein.
    In the case at bar, if the work had not been completed at the time specified, the party for whom it was to be done could have rescinded the contract at that time, and the other party could not have recovered for the work done.
    ■If the party did not rescind, but allowed the work to go on, he must pay for the same at the rates specified m the contract, and if he required it to be completed within a reasonable time, he must give the other party notice thereof, before he can terminate the same.
    Present, Freedman, Curtis , and Speir, JJ.

      Decided February 1, 1875.
    This is an appeal by the plaintiffs from a judgment entered upon the report of a referee dismissing the complaint.
    The action is to recover for labor and materials.
    The defense is a general denial, and a counter-claim is interposed, claiming damages for the default of the plaintiff.
    On February 13, 1873, the plaintiffs contracted, in writing,' to furnish the materials and complete the filling of a certain portion of Seventy-sixth-street, and to complete the work by June 1st following, and the defendant agreed that upon completion of the work, he-would pay the plaintiff twenty cents per cubic yard for the material furnished and used.
    The plaintiff failed to complete the work at the time specified. The defendant did not then terminate the agreement, but from time to time he called on the plaintiffs to proceed with it, which they did to some extent. Subsequently, by a notice, dated December 27, 1873, and served on the plaintiffs, about that time the defendant terminated the contract, and the plaintiffs ceased work.
    The plaintiffs had furnished and filled in twenty thousand one hundred and seventeen cubic yards of materials, and this action is to recover for the same at the contract price of twenty cents per yard, amounting to four thousand and twenty-three dollars and forty-four cents.
    The referee finds that the plaintiffs furnished materials and did work under the contract after June 1, 1873, at the request and direction of the defendant, and resumed work in pursuance of the contract from time to time, at the request and direction of the defendant, up to about December 25,1873.
    The view taken by the referee in dismissing the complaint was, that by the contract performance was to precede payment, and the plaintiffs having failed to-perform on their part without fault on part of defendant, can recover nothing, for the labor and materials furnished.
    The referee also held that the defendant was not entitled to damages for delay, other than a dismissal of the complaint, and judgment in his favor for costs.

      Alex. Thain, for appellants.

      Samuel Hirsch, for respondents.
   By the Court.—Curtis, J.

It is not a condition of the contract, that there shall be no money paid for the work, unless it is done at the time fixed. The contract provides that the work is to be paid for upon completion. The referee finds that the defendant was to pay on the completion of the work at the time specified. If it had been the design of the parties to bind themselves to the stringent condition expressed by the words “ at the time specified,” it must be presumed they would have inserted it in the contract, and the finding of the referee that there was such a condition would then be sustained. In its absence, such a condition can not be assumed as a part of the agreement. When time is of the essence of a contract, it must be made to appear in express terms, and not left to be inferred from doubtful expressions.

It seems to be well settled, that where work done under a contract, is not completed at the time limited for its performance, but is proceeded with thereafter with the assent of the party for whom the work is done, a recovery may be had for the work done, but the plaintiff is confined to the rate of compensation fixed by the contract, unless during the progress of the work he gives notice of an intention to demand a different rate of compensation.

It was the right of the defendant to rescind the contract upon the failure to complete, and if he had done so, the plaintiff could not have recovered. But the defendant thereupon elected not to do so, and then, not only suffered the plaintiffs to go on, but repeatedly urged and directed them to proceed with the work, thus both parties, after the time expired, treated the contract as still in force.

If the defendant had wished to annul the rights of the plaintiffs under the contract, he should upon their failure to complete at the day designated, have -given them a notice requiring performance within some reasonable time specified, and that in case of default, their rights would be deemed abandoned (Merrill v. Ithaca & O. R. R. Co., 16 Wend. 586; Sinclair v. Tallmadge, 35 Barb. 602; Myers v. DeMier, 52 N. Y. 647; Hubbell v. Von Schoening, 4 Supr. Ct. 649).

The plaintiff’s action for the price should have been sustained, leaving the defendant to his remedy for any injury he may have suffered by the plaintiff’s delay in completing the work. The finding of the referee as to the damage sustained by the defendant is rather vague as to the amount, and not supported by the evidence with satisfactory clearness.

These views, if they are correct, dispose of the principal questions raised by the appeal, and the judgment appealed from should be reversed, with costs to appellants, to abide the event of the suit, and with the usual order in respect to the order of reference, and a new trial ordered.

Freedman and Speir, JJ., concurred.


author: By the Court.—Sedgwick, J.

text:
    JOHN E. RISLEY, Plaintiff, v. WILLIAM H. SMITH and others, Defendants.
    I. EQUITABLE ASSIGNMENT.—EXECUTORY CONTRACTS TO ASSIGN.
    1. What wili. operate as.

      a. An order to pay a part of a fund not in existence will, upon the fund coming into existence, operate as an equitable assignment; but if the fund never comes into existence, the order can oniy operate as an executory contract to assign, a breach of which may give a right to damages.
    But
    to give validity to the order either as an equitable assignment or an executory contract a consideration is necessary.

    2. Consideration", what not sufficient.

      a. Husband and wife. An antecedent indebtedness due by the husband of the drawer of an " order payable out of a specified fund to grow due, is not a sufficient consideration. This though the order is accepted by the drawee—
    See Alger v. Scott, 54 N. Y. 14.
    8. An illusion without substance or value is not sufficient.

      Instances given.

      e. A promise by the drawee to gay to the drawer, if the promis is such that the promisee will never have the use, benefit, or enjoyment of any thing is not sufficient.
    1. It is a mere illusion, d. Forbearance does not form a consideration.

    1. Where, although a security is taken which does not become payable until the expiration of some term yet to elapse, but the actual intention of the parties, had no reference to relieving the principal debtor from an action by his creditor.

      %. Where the forbearance is not promised or given at the request of the promisor.

      a. If & promisee gratuitously or voluntarily, or at the request of a third person, promises or gives forbearance, that can not sustain a contract which had no reference to forbearance.
    H. APPLICATION OE ABOVE ■ PBINOIPLES.
    1. A., as agent for a railroad company, procured B. to propose to enter into a contract for the building of the company’s road for a certain sum, to wit, two hundred and fifty thousand dollars. At a conversation between A., B., and the president of the company the subject of A.’s compensation came up, and it was agreed between them that he ought to have five thousand dollars; as the sum to be paid for building the road would exhaust all the available assets of the company, the president asked B. to pay the five thousand dollars. To this B. objected, but the final result was that it was arranged that the five thousand dollars should be added to the contract price for building the road, and that B. should give A. a draft on the railroad company for five thousand dollars payable pro rata as the money should become due to B. under his contract with the company. Thereupon the company and B. entered into a contract whereby B. agreed to construct the road, and to run or procure cars to run thereon, and the company covenanted that when B. should complete the road all the franchises, rights, and property of and belonging to the ■ company should become the property of B. and his associates, and further covenanted to pay B., on such completion, two hundred and fifty-five thousand dollars in certain specified installments. At the time of the execution of this contract B. gave to A. the order before mentioned, which was then and there accepted by the president on behalf of the company.
    There was some evidence that before the arrangement for the order was consummated, the president said that he could possibly get additional subscriptions to the extent of five thousand dollars, if B. would consent to take that amount for the benefit of him (the president) and A. Afterwards the agreement to construct the road was, by the mutual consent of the parties thereto, canceled and annulled before .any sum became due B. thereunder.
    , A. demanded payment from B. and the company, which, being' refused, he brought an action against B. on the order.
    Held,
    upon these facts that there was no sufficient consideration tc hold B. liable.
    Before Monell, Ch. J., Sedgwick, and Speir, JJ.

      Decided February 1, 1875.
    Verdict for plaintiff, and exception ordered to be heard in the first instance at general term.
    The complaint averred that a contract was entered into by the defendants and an Indiana Railroad Company, by which the former agreed to construct for the latter its road, for certain moneys to be paid by the latter from time to time.
    That afterwards, while the contract was in force, the defendants, for a valuable consideration, drew a written draft or order on the company, directed to its president, in the words following, viz. :
    “New York, July 13, 1867.
    “$5,000.
    “For value received pay to the order of John E. Risley, five thousand dollars pro rata, as the money shall become due to us under'our contract with you of this date, and charge the same to the account of
    “ Yours Truly,
    “ W. H. Smith,
    “ Charles Kihg, “Cohde R. Altor.
    “ To 8. O. Willson, as President of the Indianapolis, &c. Railroad Company.”
    That afterwards, on the day of the date of the draft, the plaintiff presented the same to the said S. C. Will- ° son, as president, &c., and Willson, on behalf of the company, accepted the draft by writing thereon, “ Accepted, July 13, 1867, S. C. Willson as President o£ Indianapolis, &c., Railroad Company.”
    That afterwards, to wit’., &c., the defendants and said railroad company, without the knowledge or consent of plaintiffs, and after defendants had begun to construct the road under the contract, and before any moneys had become due under it, canceled said contract.
    That no part of the moneys due under said draft to the plaintiff, had ever been paid, although payment of the same had been demanded, both of said defendants and of said company.
    The complaint demanded judgment in five thousand dollars, with interest from July 13, 1867.
    The answer admitted the making of the contract.
    It denied that the defendants made the draft set out in the complaint for a valuable or any compensation, . and alleged that without any consideration and at the request of the plaintiff, and of the said Willson, president, they drew said order to enable said Willson and said plaintiff to receive and collect from the company five thousand dollars, to cover what the plaintiff and Willson claimed to have been their labor and services, rendered to the company in carrying through the negotiation of the contract for building said road, and for that and for no other purpose, the said sum of five thousand dollars was agreed to be and was added to the contract price of two hundred and fifty thousand dollars, on which the company and the defendants had previously agreed, and the said order was drawn by the defendant, and accepted by the said Willson, as president of said company, accordingly.
    That at the time said draft was drawn it was mutually understood that the ability of the defendants to execute their said contract with said company, and the receipt of said five thousand dollars by said plaintiff and Willson out of the proceeds of said contract, must and should depend and be contingent upon the defendants receiving funds necessary to carry out their contract, which they did not possess themselves, from other parties, upon whom they relied for that purpose, and that with such understanding these defendants drew, the plaintiff received, and the said Willson, as president, &c., accepted said draft.
    That in fact the defendants, notwithstanding their best efforts, failed to secure the necessary funds to carry out said contract, and thereupon the said contract, was with the express assent of said Willson, and as these defendants were informed and believed, with the knowledge and assent of the plaintiff, canceled on the ground of the inability of the defendant to carry out the same.
    The answer, for a separate defense, alleged that said Willson was a necessary party plaintiff, because it was agreed between the plaintiff and Willson that the said five thousand dollars, if realized, should be divided between the plaintiff and Willson, for services alleged to have been rendered by them jointly for the said company, in procuring the defendants to enter into said contract.
    Upon the trial it appeared, by the plaintiff’s case, that the plaintiff on behalf of the Indiana Railroad Company, found the defendants and brought them into communication with Willson, president of the company. It was preliminarily and informally agreed between them, that the defendants would contract to build the road of the company for two hundred and fifty thousand dollars. There was then a conversation between the plaintiff, Willson and the defendants, in regard to compensating the plaintiff; It was agreed between them that the plaintiff ought to have five thousand dollars, and Willson suggested that as by the proposed contract the company was to give to the defendants all of its available assets, there would be no provision for paying the plaintiff, and asked that the defendants themselves pay it, to which the defendants made some objection. The final result was, that the defendants offered, if the railway company would increase the bonus five thousand dollars, from two hundred and fifty thousand dollars to two hundred and fifty-five thousand dollars, they would then give the plaintiff the draft in .suit. The defendants agreed to draw the draft, provided that was done. Thereupon an agreement was made, July 13, 1867, between the defendants and the railroad company, by which the defendants covenanted to construct the road, and to run or procure cars to be run thereon ; and the railroad company covenanted that when the defendants should complete said railroad, all the franchises, rights and property of, and belonging to the company, should become the property of the defendants and their associates. The company further covenanted to pay the defendants in the aggregate, two hundred and fifty-five thousand dollars, but in installments, specified as the work went on. The agreement was executed on behalf of the .company by Willson as president of it. At the same time, the draft or order in suit was drawn and accepted. After the plaintiff had the order, Willson suggested that he had been at great expense and trouble, but the company had no means to reimburse him, and said the plaintiff ought to give him part of the money after he had collected it. The plaintiff said, as matter of grace and nothing more, he would give Willson, one-third or one-fourth of the money, after it was collected. On April, 16, 1868, by the mutual consent of the parties to the agreement to construct the road, it was canceled and annulled between them, before any sum became due to the defendants thereunder. The plaintiff had demanded payment, both of the defendants and the railroad company, but this was refused

      The defendants moved to dismiss the complaint on the ground that the testimony showed no liability of the defendants. The motion was denied, and the defendants excepted.
    On the part of the defendants, Mr. Nelson testified that he introduced the plaintiff to the defendants, at the beginning of the negotiation ; that Willson, for the company, offered the defendants two hundred and fifty thousand dollars; that there was a proposition to allow the plaintiff something out of this, but the defendants said they could not spare it; that Willson said he would go home and see if he could not get five thousand dollars subscribed in addition ; that Willson said he wanted a portion of this, and the plaintiff was to take care of Willson.
    The defendant Alton testified that Wills.on stated that he possibly could increase the amount five thousand dollars, if the defendants would consent to take that amount for the benefit of himself and the plaintiff, as the witness understood, and upon that the proposition was drawn up and executed with the amount at two hundred and fifty-five thousand dollars, on the understanding that five thousand dollars was to be applied to the compensation of plaintiff and Willson. The fund was to be held by the plaintiff, and Willson was to derive a benefit from it. The witness was asked by defendant’s counsel, “ Q. Why did you not go on and build the road?” Upon objection, defendants offered to show that they did not go on to build the road, because of their inability, and that the contract was surrendered and canceled solely on this ground. The question was shut out and the offer rejected, to which the defendants duly excepted.
    The defendants renewed the motion to dismiss the complaint or to direct a verdict for the defendants on the ground that there was no liability upon the testimony shown of these defendants. This was denied, and exception taken.
    The defendants’ counsel asked the court to submit to the jury the following propositions, among others :
    If the jury find that the draft was given to the plaintiff to enable' him to collect from the company money due him from the company, and not as an evidence of indebtedness from the defendants to the plaintiff, they should find for the defendants.
    If the jury find that the draft was given- in the form of a draft for the plaintiff’s convenience to enable him to collect the money from the company, the plaintiff can not recover. The requests were denied, to which the defendants duly excepted.
    The court directed a verdict for the plaintiff, to which exception was taken, and further directed the exceptions to be heard before the general term in the first instance, judgment in the meanwhile to be suspended.

      John E. Risley, plaintiff, in person, and James Clark, counsel, on the points considered by the court, urged;
    I. The draft in question was drawn and delivered by defendants for a sufficient consideration. (1) It purports, by its terms, to be drawn “for value received.” These words afford prima facie evidence of a valid consideration, and cast on defendants the burden of proving that there was no consideration (Jerome v. Whitney, 7 Johns. 321; Hinman v. Moulton, 14 Id. 466; Jackson v. Alexander, 3 Id. 484; Walrad v. Petrie, 4 Wend. 576; Prindle v. Caruthers, 15 N. Y. 425, 431). (2) The five thousand dollars added to the bonus agreed to be paid'to defendants, constituted a valid and valuable consideration for the drawing and delivery of the draft to the plaintiff, (a) One promise is a good consideration for another (1 Pars, on Cont. 448; Miller v. Drake, 1 Caines, 45, 46; Briggs v.
      Tillotson, 8 Johns. 235; N. Y. & N. H. R. R. Co. v. Pixley, 19 Barb. 428; White v. Demilt, 2 Hall, 436; Funk v. Hough, 29 Ill. 145; Downy v. Hinchman, 25 Ind. 453; Nunally v. White, 3 Metc. (Ky.) 584; Babcock v. Wilson, 17 Me. 372; Whitehead Potter, 4 Ired. L. 257; Appleton v. Chase, 19 Me. 74; Society in Troy v. Perry, 6 N. H. 164; George v. Harris, 4 Id. 533; Forney v. Shipp, 4 Jones (N. C.) 527; Nott v. Johnson, 7 Ohio St. 270; Abrams v. Suttles, Busbee (N. C.) 99). (b) The promise of the railroad company to pay the defendants the additional five thousand dollars afforded a valid consideration for the obligation incurred by them in drawing and delivering the draft to the plaintiff. It is not necessary that the consideration of a promise should move from the promisee to the promisor. It is sufficient that it proceed from a third party—especially, to use the language of some of the authorities, if the promisee have “intervened in the agreement ” (1 Smith Lead Cas. 224; 1 Story on Cont. §§ 450, 451 b.; Farley v. Cleveland, 4 Cow. 432; Barker v. Bucklin, 2 Den. 45; Stewart v. Trustees of Ham. Col., Id. 403, 417; Del. & Hud. Canal Co. v. Westchester Bank, 4 Den. 97; Tipper v. Bicknell, 3 Bing. (N. C.) 710, Webb v. Rhodes, Id. 732; Arnold v. Lyman, 17 Mass. 400; Carnegie v. Morrison, 2 Metc. (Mass.) 381). (3) The company’s obligation to pay the plaintiff for his services, prior to the drawing and acceptance of the draft, was absolute and present. On the faith of the draft plaintiff accepted, instead of an absolute, a conditional liability of the company, and consented to receive his pay in future installments instead of in presenti. Each of these concessions afforded a valid consideration for the obligation assumed by defendants in drawing and delivering the " draft.
    II. Through the drawing and delivery of the draft by defendants, and its written acceptance by the railroad company, plaintiff became the equitable assignee of an interest in the contract between defendants and the company, and entitled to five thousand dollars of the money to be paid pursuant thereto (Vreeland v. Blunt, 6 Barb. 182; Peyton v. Hallett, 1 Caines, 364, 379; McMenomy v. Townsend, 3 Johns. 72; Bradley v. Root, 5 Paige, 632; Ward v. Whitney, 8 N. Y. 442).
    III. The draft having been drawn and delivered for a sufficient consideration, and the plaintiff having become the assignee of an interest, equal to the face of the draft, in the contract between the company and defendants, the latter became bound to perform the contract for the benefit of the plaintiff ; and their subsequent surrender of it, without the plaintiff ’ s consent, was a breach of their obligation to him, rendering them liable for the amount secured by the draft. The true principle is laid down in the case of Worden r. Dodge, 4 Den. 159. The action was on an agreement by which the defendants agreed to pay the plaintiff a specific sum out of the net proceeds of a certain ore bed. The plaintiff read the agreement and rested ; whereon defendants moved for a nonsuit. The judge granted the motion, holding that the “plaintiff could not recover without proving that the defendants had received funds from the ore to enable them to pay, or had neglected to work the ore bed.” The obligation of the makers of the contract in that case to work the ore bed, and that of the drawers of the draft in this to construct the road, stand on exactly the same footing.
    IV. There was no error in the court’s rejection of defendants’ offer to show “that they did not go on to build the road in accordance with the terms of the contract, because of their inability to do it, and that the contract was surrendered, and the surrender accepted by the company on that ground.” If, by drawing and delivering the draft, defendants incurred the obligation claimed by the plaintiff, their subsequent embarrassments furnished no better answer to his demand than the insolvency of the maker of a promissory note would to an action against him by the holder. “Nulla bona” however complete a defense to an execution, has never been regarded as a good plea in bar before judgment. Defendants’ offer, however, is significant in one respect: it is a distinct admission, on the record, that the surrender and cancellation of the contract between them and the company was for a reason wholly • different from the alleged fraud in which they now accuse themselves of having participated, and which, they insist vitiated both the contract and the draft.

      Rodman & Adams, attorneys, and S. P. Nash, of counsel for defendants, on the points considered by the court, urged;
    I. Unless the order signed by the defendants amounted, in legal effect, to an undertaking with the plaintiff to go on with the" contract with the railroad company, so as to earn the money out of which the order was payable, the defendants incurred no liability to plaintiff by surrendering the contract. (1) An order payable in a particular manner out of a particular fund is not a bill of exchange, and is not subject to the law merchant (Cook v. Satterlee, 6 Cow. 108; Morton v. Nayler, 1 Hill, 583; Van Wagner v. Terrett, 27 Barb. 181). (2) An order drawn, not against funds in hand, but made payable out of funds expected at a future day, does not per se guarantee that such funds will come to hand. (3) The legal import of the draft in- suit was this: “We expect to earn two hundred and fifty-five thousand dollars agreed to be paid to us by the railroad company. If we do, we will pay you five thousand dollars out of it, and you may collect it of the company as earned, and before it is paid over to us.” No obligation was assumed to earn it or to pay, in default of earning it (Churchward
      v. Regina, Law Rep. 1 Q. B. 173). (4) Considered as an assignment of interest of five thousand dollars in the contract, it created no obligation on the part of the defendants, as assignors, to earn the money. Their only duty to the plaintiff was, in case the money was earned, not to prevent his obtaining it. A warranty of title is implied in a sale of personal property ; and in the sale of a chose in action, a warranty is sometimes implied that the amount due is that called for by the security; but this implied warranty is “founded on the presumed superior knowledge of the vendor on the subject” (Furniss v. Ferguson, 15 N. Y. 437. 34 Id. 485; 3 Robt. 269). But a warranty applies to an existing state of facts, not to expectations; and in the case at bar, if there was any superior knowledge in either party, as to the facts relating to the contract, it was in the plaintiff.
    II. If the giving of the order did not imply an undertaking at all events to fulfill the contract or pay the five thousand dollars, then a surrender of the contract, if made in good faith, was no more a violation of duty to the plaintiff than a non-performance of the contract through mere inability of the contractor.
    III. If the order implies an absolute undertaking on the part of the defendants to the plaintiff, to perform the contract, or to pay to him the sum expressed in the order, such an undertaking was without consideration. (1) When the order was given, defendants owed the plaintiff nothing. He had been employed, not by them, but by the railroad company through Willson, though he “had commenced as a volunteer to look for contractors, as'he had an interest in lands along the line.” This is his own statement. (2) The contract between the defendants and the company was to build the road for two hundred and fifty thousand dollars. It was increased to two hundred and fifty-five thousand dollars, not to benefit the defendants but the plaintiff, and the extra five thousand dollars was transferred to plaintiff as soon as the contract was made. There was no advantage to defendants in this ; no discharge or modification of any obligation on their part, as they were under none; no increase in the amount of their compensation, as the nominal increase was at once transferred to plaintiff, and was never even to come into their hands. If the contract price was increased, they were to draw the order in question, that is, were to assign the full amount of the increase. This is plaintiff’s own version of the arrangement. The exception to the refusal to instruct the jury, was well taken.
   By the Court.—Sedgwick, J.

In Alger v. Scott, 54 N. Y. 14, the commission, of appeals held, that an order to pay out of a specified fund, viz., rent to grow due from the drawee to the drawer, such order being accepted, did not in the absence of a consideration, make the payee of the order, an equitable assignee of the rent, it having fallen due ; and that the ord er being given to secure an antecedent indebtedness due by the husband of the drawer to the payee, was not sufficient consideration. Commissioner Earle dissented. We are not in this case called on to consider what the rights of the payee are, when from the face of equitable principles, it is deemed there has been a grant, or executed transfer, of the right to the fund, by the former owner. But there can hardly be a doubt, that when the assignment has not been made, but is executory, the payee’s rights must depend upon the obligation legal or equitable, of the person sued, to complete the assignment. In this case we do not consider the obligations of the acceptor, for it is not made a defendant, but only of the drawers who are sued.

Such orders to pay a part of a fund, not in existence, have been held several times, to be assignments, although not accepted, upon the fund drawn on coming into existence. (Field v. Mayor of N. Y. 6 N. Y. 184. Parker v. City of Syracuse, 31 Id. 376. Hall v. City of Buffalo, 1 Keyes, 193. Stover v. Eyclesheimer, 3 Id. 620). In the first case cited, an instrument in the form of an assignment, was held to operate as an agreement by the assignor that the assignee should take and receive the fund, when it should come into existence. It was not indeed an assignment in presentí, and did not at the time it was made transfer the claim the assignee had against the defendant, but it created an equity which seized upon the moneys as they became due, and continued so to do, until the object of the agreement was accomplished.

If the fund never comes into existence, it is impossible that there should be an assignment, or transfer of it. Then at the best, the obligation, is in its nature, one of contract to make the assignment, and in case specific performance be impossible, a breach of the contract may give a right to damages.

In the present case, the order by its terms is not an agreement. If any agreement be implied (Road v. Dawson, 1 Ves. Sen. 332; 3 Lead. Cas. in Eq.; 2 Spence Eq. Jur. 855), it was that the defendant would transfer to the plaintiff, or put him in possession of, the fund described as one thereafter to arise from their performance of the contract to build the road. This being an executory contract, and nothing more, a consideration must be found to make the defendants liable in damages for not performing it. And the learned counsel for defendants assumed, that a consideration must be proven, and forcibly urged, that one fully appeared by the evidence.

The facts relevant to the issue of consideration were not the subject of conflict among the witnesses. It is. not claimed by the plaintiff that the defendants were under any liability to the plaintiff, by reason of his procuring the contract to be made. Whatever he did was on the employment, and at the request, of the railroad company solely. Before the contract was entered into, the negotiations had fixed the sum to be paid to the defendant at two hundred and fifty thousand dollars. It was demanded that they should agree to pay the plaintiff, out of this sum, five thousand dollars for his services. They not being liable to the plaintiff, refused to agree to this. But on the promise to have the sum to be paid to them made, by the contract, two hundred and fifty-five thousand dollars, they agreed to give the order in question. The contract was made to pay the defendants two hundred and fifty-five thousand dollars, and they drew the order.

Whatever the circumstances are, a consideration to support a contract must be substantial. It must have value, although the quantity of the value need not be great, but may be small. If it be an illusion, making but a false appearance of value, it is not a valuable consideration. The naked fee of an owner, after his ' interest in the land has been sold under execution, will not be a consideration for a promise to pay so much money for it (Van Alstyne v. Wemple, 5 Cow. 162). A promise to release from a contract void by the statute is not a consideration (Silvernail v. Cole, 12 Barb. 685).

A promise to pay in the future, or to act in the future, may be a consideration, but because the consideration takes the shape of a promise, not the less must the promise be of value. A promise by a plaintiff to account to the defendant for the interest of a third person in an adventure, when at the time of the promise it was possible that such third person might have a balance due him, yet it did not appear that he had one in fact, is not a valuable consideration (Powell v. Brown, 3 Johns. 104). A promise to pay has value-to the promisee from it being a means of obtaining the thing promised. If the promisee is to have the money as his own for a short time, it may be enough. On the other hand, if the promise is such that upon full performance the promisee will never have use, benefit, or enjoyment of anything, there is not even an appearance of value to him.

In the present case, we will suppose that the railroad company promised to pay the additional five thousand dollars, if the defendants would draw the order. We do not now examine the reality of this supposition, although it would appear that by the contract the whole two hundred and fifty-five thousand dollars was made a consideration for the defendant’s promises to build the road. We will consider the facts as if the order and acceptance had been inserted in the contract, in terms expressive of the obligations of the parties, as we have, for the purpose of this case, supposed they exist upon the order in its detached state.

It would then have appeared that, cotemporaneously with the promise of the railroad company to pay to the defendants the two hundred and fifty-five thousand dollars, the defendants promised the plaintiff and the railroad company to assign five thousand dollars of hat sum to the plaintiff, and to accomplish that, divested themselves of all claim to demand the five thousand dollars of the company. There was no instant of time when the defendants would have use or enjoyment, either of the five thousand dollars, or of the promise to pay the five thousand dollars. Therefore such a promise was without value to them. At the same time (looking at the company as the acceptor of the order), the contract would have contained a promise by the company, that upon the defendants performing, the company would pay the five thousand dollars to the plaintiff, which reduced the amount promised to be paid to the defendants to two hundred and fifty thousand dollars.

If such had not been the nature of the transaction, but the contract had contained an absolute promise to pay to the defendants two hundred and fifty-five thousand dollars in their own right, the defendants would have had a valuable interest in the five thousand dollars, as parcel of that sum. As the facts were, I am of opinion that the promise by the railroad company to increase the two hundred and fifty thousand dollars to two hundred and fifty-five thousand dollars, and the performance of that promise was not a valuable consideration to make the defendants liable upon the executory contract in question.

Again, was there an implied agreement by the plaintiff to forbear suing the railroad company for the value of his services, which made the executory contract, which we have supposed to exist in the case, an obligation upon the defendants as founded upon a consideration ? There is no proof that the plaintiff made an express promise to forbear.. If there were a promise it must be implied in, or inferred from, the fact that the order and acceptance matured in the future. It is not a necessary consequence, from giving collateral security, that, there be forbearance upon the principal obligation. The surety, as such, may desire that the principal debtor be called upon to pay, and, if possible, compelled to pay, before he, the surety, shall be liable. At the most, there would be a presumption that the creditor took security to give the principal debtor ease in the present. This presumption would be explained, if the other facts showed a different intention.

In the present case, without going into a minute dissection of the testimony, it seems clear to me, that the actual intention of the parties had no reference to relieving the railroad company from an action by the' plaintiff. The arrangement was one by which the , railroad company should be put in funds sufficient to > pay the plaintiff. The contract that was contemplated at first, for the building of the road for two hundred and fifty thousand dollars, left the company without money to pay the plaintiff. In order to get the money, the defendants, by a letter, required that two hundred and fifty-five thousand dollars should be paid. This demand led to the company acquiring in some way five thousand dollars more. The arrangement substantially had reference to this, and not to the time when the plaintiff should call on the company for payment of its indebtedness to him.

Beyond this, to uphold forbearance as a consideration, it must be part of the contract, as between the parties. The party to be held must have made the contract upon that consideration. To state it in another way, the forbearance must be promised or given at the request of the promisor. If the promissee, gratuitiously or voluntarily, or at the request of a third person, promises or gives forbearance, that can not sustain a contract which had no reference to forbeáranpe. In the present case, the facts show that if forbearance was given, the company did not ask time, nor was the order given to the plaintiff on that score. The sole object of the transaction being to get the company in funds, as a help both to the plaintiff and to the Railroad Company, it affirmatively appeared that the defendants did not request the forbearance, but the plaintiff voluntarily gave it, so far as the defendants were concerned. I do not think, therefore, that in this matter there is a consideration which holds the defendants to the performance of a contract.

The theory of the present action, in substance, holds the defendants to the payment of a debt due by the company. It might be questioned, whether the drawing of a non-negotiable order constitutes such a written promise to pay, that it is not invalid by the statute of frauds. This was not discussed on the argument, and is not passed upon here. For the reasons stated above, I am of opinion that the motion to dismiss the complaint should have been granted ; that the exception to the ruling in that respect should be sustained. The verdict should be set aside, and a new trial granted, with costs to defendants to abide event.

Monell, Ch. J., and Speir, J., concurred.


text:
    JAMES MAHER, an infant, &c., Plaintiff and Respondent, v. THE CENTRAL PARK, NORTH AND EAST RIVER RAILROAD COMPANY, Defendants and Appellants.
    I. CARRIER.—NEGLIGENCE.—PASSENGER CASE.
    1. Contributory negligence by passenger, what will not constitute as matter op law.
    1. Front platform, entering car by.

    If the car is at rest or on the point of rest although some motion remains, the getting on by the front instead of the rear platform is not, as matter of law, contributory negligence.

      a. If the evidence leaves it uncertain as to whether the motion was not so great as to make it unsafe for a man of common prudence to get on the car, the question should be submitted to the,jury.

    2. Negligence by carriers, evidence op.
    1. The hurrying up of the horses while a passenger is in the act of getting on, and before he is fairly on, is evidence of negligence to go to the jury.

    H. TRIAL.
    1. Charge op the judge, construction op.
    1. The whole charge must be considered and applied to the facts of the case.

      thus:
    where there was evidence that at the time a passenger was getting on a car by the front platform, the car was at rest or on the point of rest, and that the driver invited the passenger to get on by the front platform, and the court charged the jury that they should find for the defendant, unless the proof showed that the car was stopped or being stopped, and further charged that the front platform is a place of danger, and the occupation of it, or an attempt to get on by it is prima facie evidence of danger, unless the passenger is invited so to do by a servant of the company,

    Held,
    that the qualification as to the invitation must be considered as applied to the case of a passenger attempting to get on while the car was at rest or on the point of rest.

      a. In this aspect the charge was a more famordble one to the carrier than he had a right to ask for.
    Before Curtis and Sedgwick, JJ.

      Decided February 9, 1875.
    Appeal from judgment.
    The facts sufficiently appear in the opinion.

      Brown, Hall, & Vanderpoel, attorneys, and A. J. Vanderpoel, of counsel, for appellant.

      George Owen, attorney, and John Graham, of counsel, for respondent.
   By the Court.—Sedgwick, J.

This action is for damages for injury to plaintiff, by negligence of defendants. The jury assessed the damages at five thousand eight hundred dollars. The plaintiff at the time of the accident was eleven years old, and one of his witnesses was ten years old. They were not incompetent to testify, and it was the duty of the jury to consider their testimony, as they would that of more mature witnesses, and examine it, in view of all the circumstances of age, intelligence, motive, &c. The boys swore that the car was stopped, or being stopped, when the driver told them to jump on. The driver was on the front platform as they waited for the car to come up. The plaintiff stepped upon the first step of the platform. Before he had reached the second step, the driver hurried the horses. This gave a sudden motion to the car, which threw the plaintiff under the wheels.

If the car was at rest, or on the point of rest, although some motion remained, there was not so plain an appearance of danger to a person taking the front platform that it was, as a matter of law, contributory negligence not to take the rear platform. If the evidence left it uncertain whether the motion was not so great as to make it unsafe for a man of common prudence to get on the car, the question might be submitted to the jury. An accident of the - kind in question was as likely, if the plaintiff had taken the rear platform, although the consequences might not have been so serious. In either ciase, it might be properly assumed by the passenger, that the driver would act with common. prudence, so far as not to start the car until the passenger was safely in it. I therefore think that the motion to dismiss the complaint, on the ground that it appeared that the plaintiff was negligent, was correctly denied.

The hurrying-up of the horses, before the plaintiff was fairly on the car, was evidence of negligence on the part of the driver, which the court was right in submitting to the jury. The court charged that it was negligence in plaintiff to get on the front platform, without, the car stopping, or being stopped, and further that it was negligence contributing to the accident, if the jury believed that the car was not stopped, and the boy undertook to get on there.

The defendant’s counsel requested the court to charge “ that the front platform is a place of danger, and the occupation of the front platform, or an attempt to get on the front platform, is prima facie evidence of negligence on the part of the passengers.” The court so charged, adding “unless the jury believe he was invited on by the servant of the company.” If this was equivalent to the court saying that the plaintiff would not be guilty of contributory negligence, when the car was moving at a dangerous rate, if the driver asked or told the plaintiff to get on, and was to be taken apart from the rest of the charge, there would be-doubt as to its correctness. But we should take it as part of the charge to be applied to the facts of the case on trial. The court gave it as law to the jury, that they should find for defendant, unless the proof showed that the car was stopped or being stopped, so that the part of the charge under consideration must be applied to such a case, and then the modification of the court was in favor of the defendants, because it called upon the plaintiff further to satisfy the jury, that the driver invited him to get on the front platform.

The injury the boy received was very painful, and left him maimed for life. We can not affirmatively find that the amount of the verdict was extravagant, or more than a compensation for the results of the accident.

Judgment should be affirmed, with costs.

Curtis, J., concurred.