author:
McAdam, J.
      By the Court.—Freedman, P. J.

text:
    SAMUEL J. KNIGHT, as President, etc., Appellant v. SACKETT & WILHELMS LITHOGRAPHING COMPANY, Respondent.

      Motion for a new trial—Dismissal of complaint on the merits—Lithor/raphic stones, impressions on same, conversion of. ,
    The motion for a new trial was made on the minutes of the trial judge, upon the grounds specified in section 999 of the Code, but the trial had been before a judge, without a jury, by consent of parties. Section 999 applies only to jury trials, and the order appealed from must, therefore, be affirmed irrespective of the reasons for which it was made.
    The complaint was properly dismissed, because of the failure of the plaintiff to establish a title to the lithographic stones. The action being for conversion, the plaintiff was bound to establish title. The stones must be regarded as the principal, and the impressions thereon as a mere incident, and the plaintiff could not maintain conversion based upon the refusal of the defendant to deliver up the impressions and an offer to pay the value of the stones. A delivery of the impressions cannot he made without giving up the stones also, nor is a mere refusal to permit a transfer to be made of the impressions sufficient to sustain the action. Conversion would only lie upon proof of the destruction of the plaintiff’s interest in the impressions. Short of that, and under the special circumstances of this case, the plaintiff’s remedy against the defendant is in equity. For these reasons the complaint was properly dismissed; hut as the dismissal was upon plaintiff’s own showing, and without findings, it should not have been dismissed “ upon the merits,” and the judgment should be modified by striking out the words 11 upon the merits.”

    Before Freedman, P. J., Dugro and Gildersleeve, JJ.

      Decided July 5, 1892.
    Appeal by plaintiff from a judgment dismissing the complaint, after trial of the issues by a judge without a jury, and also from an order denying plaintiff’s motion for a new trial.

      The facts and points in this case appear fully from the following statement and opinion of the trial judge, the points of counsel, and the opinion of the court.

      “ The plaintiff entered into a contract with the Hatch Lithographic Company, by which the latter was to perform services in making lithographic drawings or impressions on stone, from which, prints or colored lithographs were to be printed from time to time for the plaintiff, at agreed prices. The drawings became the property of the plaintiff, while the stones upon which the impressions were made and taken belonged to the Hatch Lithographic Company. While the stones were thus owned, the latter company executed a chattel mortgage thereon, which was foreclosed, and at the foreclosure sale the property was bought in, and eventually found its way into the hands of the defendant. The plaintiff tendered to the defendant the sum of $247.50, which it claims was the price fixed by the defendant as the value of the lithographic stones upon which the drawings were made and demanded from the defendant the delivery of the drawings, which of course included the stones upon which the impressions were made, for the one could not be delivered without the other; but the defendant refused to comply with the demand, and the plaintiff brought this action in trover as for conversion, claiming- $5,000 damages-. The complaint was dismissed upon the ground that the plaintiff had no title to the stones, hence could not maintain conversion. The present is an application for a new trial.
   McAdam, J.

“ Theplaintiff’s counsel at the trial, asked by what process his client became possessed of title to the stones, replied,c By confusion of property; ’ but the intermixture in this instance was by the consent of all the parties, so that the owners became tenants in common of the property according to their respective interests (Oowen’s Treat-., § 580), and the rule applicable where one unlawfully makes the intermixture, as illustrated by the cases referred to in § 579, supra, has no application; nor does the theory of accession of property apply, for the reason that the stones would be regarded as the principal, the impressions a mere incident, and if that rule were applied the title to all would be in the owner of the stones.

The rule is settled that neither replevin nor trover for conversion will lie by one tenant in common. of a chattel against another for taking or disposing of the chattel. The plaintiff in such an action must claim as sole owner, and must stand or fall upon that claim. Hudson v. Swan, 83 N. Y., 552.

“ The case resembles that of Dodworth v. Jones, 4 Duer, 201, in which a stereotyper who was employed to prepare stereotyped plates of a copyright ’ book, and made them out of materials belonging to himself, and with his own labor, was held entitled to retain the plates, and that he could not be divested of his legal title to the product or plates by a tender, unaccepted, of just compensation for his labor and materials. In that action the court held that the plaintiff, in order to recover, must establish a legal title to the plates, or a special property in them, with the right of actual possession at the time the action was commenced, and added: ‘ What remedies might be taken by the plaintiff to prevent a use of the plates by defendant’s firm if it should attempt to print the book it is useless to discuss.’

“ The plaintiff had a clear right of action against the Hatch Lithographic Company for any breach of its contract arising from its refusal or inability to carry it out; but it does not follow that such right of action gave to the plaintiff any title to the stones, or any right to their possession. Perhaps the plaintiff might by bill in equity have maintained a suit for the partition of the several rights of property in the stones and the impressions on them, in which the value of the stones might have been judicially established and a sale ordered, with directions to pay such value out of the proceeds, and the residue to the plaintiff, in case it had elected to permit such a sale to go on (Prentice v. Janssen, 79 N. Y., 478); or the plaintiffs, at said sale, might have purchased the property, and, by paying the' value legally fixed upon the stones, acquired title to the stones as well as the impressions; or the defendant might have been directed to deliver up the stones on payment of the value thereof as determined. The plaintiff is seemingly entitled to such relief in an appropriate suit on principles of natural right and justice. This seems to be in accord with the ruling of Foster v. Ward, L.R., Ireland, vol. 9, pages 446, 468, Chancery Division, in which a similar question was decided, as well as with the civil law, and the views of Justinian, to which the attention of the court has been called by counsel.

William O. Campbell, attorney for appellant, argued :—

I. Title to personal property cannot be divested except by the fault or with the consent of the owner. This proposition is so trite that it would seem unnecessary to discuss it. I venture, however, to cite a few authorities. After demand and refusal, trover may be maintained by the true owner against any person, even a bona fide purchaser for value. There can be no doubt but that the owner may follow the goods. Barret v. Warren, 3 Hill, 348. In further support of this proposition it will be sufficient to cite the cases where it has been discussed and maintained. Hall v. Robertson, 2 N. Y., 293; Eli v. Ehle, 3 Ib., 506 ; Wooster v. Sherwood, 25 Ib., 278 (citing Brower v. Peabody, 13 Ib., 121;) Saltus v. Everett, 20 Wend., 267; 2 Kent’s Com., 621; Boyce v. Brockway, 31 N. Y., 490 ; Bassett v. Spofford, 45 Ib., 387 ; Barnard v. Campbell, 55 Ib., 456; Gillett v. Roberts, 57 Ib., 34; Everett v. Coffin, 6 Wend., 603; Williams v. Merle, 11 Ib., 80; Hoffman v. Carow, 22 Ib., 285-294; Prescott v. De Forest, 16 Johns., 159.

“ Upon the case as presented, and in the absence of proof of usage of the trade in regard to such matters, which might or might not have been available, the complaint was properly dismissed, and the motion for a new trial must be denied.”

II. Knight, the plaintiff, had title to the pictures on the “ key-stones ” or “ mother-stones.” The Hatch Lithographic Co. were bailees only. This proposition can be maintained by the principles of the common law. A very able discussion of almost the precise question involved here will be found in the action of Foster v. Ward, L. R., Ireland, volume 9, pp. 446 et seq. That ■was a case, as will be seen from the report, where lithographic stones had been prepared by the firm of Marcus Ward & Co., for Mr. Foster, under an arrangement almost identical with the arrangement between plaintiff and the Hatch Lithographic Company. It is sufficient to say that in that case the court awarded the plaintiff the possession of the stones with the drawings on them, and laid down the principle that the only thing necessary for the plaintiff to do was to pay the defendant for the value of the lithographic stone itself. It will be seen by the pleadings that it is admitted in this case that Mr. Knight did offer the Hatch Lithographic Company the value of the stones as fixed by themselves. Mr. Knight swears that the pictures were to remain his. This is not contradicted.

in. The plaintiff, having a property right in the pictures or drawings on the stones, acquired the right to the stones themselves by paying to the defendant the value of the stones. It is admitted that Mr. Knight tendered the value of the stones, and consequently, for the purposes of this discussion, it must be assumed that he has paid for them, there being no objection to the tender. I have been unable to find in this State any case which would exactly support the proposition now under consideration, but there is no lack of authority in the civil law and the Code Napoleon. It is certainly a monstrous doctrine to maintain that this plaintiff must lose nearly two thousand dollars’ worth of drawings or pictures, in the highest degree useful to him, simply because defendant claims title to and will not sell (though tender has been made), $247.50 worth of stones on which the pictures have been placed. I assume that the court will be swift to find relief for him, even if it must go to the civil law for it. Inst. Justinian (Sander’s Trans.), Lib. II., tit. I., § 25: When materials belonging to different persons were mixed together, or one person bestowed his labor on the materials of another, although only one person might be the owner of the product, yet he did not become so at the expense of others. He was obliged to pay those whose materials or labor had been employed the value of their respective materials or labor and was liable to a personal action for the enforcement of the payment. Inst. Justinian (Sander’s Trans.), Lib. II., tit. L, § 34; Gaius Institute, II., § 77 : If a person has painted on the tablet of another, some think that the tablet accedes to the picture ; others, that the picture of whatever quality it may be accedes to the tablet. It seems to us the better opinion that the tablet should accede to the picture; for it is ridiculous that a painting of Appelles or Parrhasius should be but the accessory of a thoroughly worthless tablet. But if the owner of the tablet is in possession of the picture, the painter, should he claim it from him, but refuse to pay the value of the tablet, may be repelled by an exception of dolus malus * * * and vice versa. * * *

If the tablet has been stolen, whether by the painter or any one else, the owner of the tablet may bring an action of theft.” Code Napoleon, Book 2, § II., Art. 565. The right of accession having for its object two things movable which belong to different masters is entirely subordinate to the principles of natural equity. The following rules shall serve as examples to guide the judge in determining cases not provided for according to the peculiar circumstances. Art. 566. When two. objects appertaining to different masters, which have been united in such a manner as to form one whole, are nevertheless separable, so that one can subsist without the other, the whole belongs to the master of that which forms the principal part on condition of paying to the other the value of the one which ivas united to it. Art. 567. That is to be deemed the principal part to which the other was only united for the use, ornament or completion of the first. Art. 569. If, of two objects united in order to form one whole, the one cannot be regarded as accessory to the other, that shall be deemed the principal which is most considerable in value or in size if the value of both is nearly equal. Art. 570. If an artisan or any person whatsoever has employed a material which did not belong to him, in order to form something of a new description whether the material can or cannot be restored to its original shape, the proprietor thereof has the right to claim the thing which has been formed from it, on paying the price of the workmanship. Art. 571. If, however, the workmanship were so important that it surpassed by much the value of the material employed, the labor shall then be deemed the principal part, and the artificer shall have the right to retain the thing wrought on paying the price of the material to the proprietor. Art. 572. Where a person has made use of materials which partly belong to him and partly do not, in order to form an object of a new description, without having destroyed any of the materials, but in such a way that they cannot be separated -without inconvenience, the object is common to both proprietors, etc.

IY. One tenant in common can maintain trover as for conversion against his co-tenant. The learned justice says in his opinion, that the owners of the drawings and the owners of the stones respectively become tenants in common because of the intermixture of properties by consent, and he continues : The rule is settled that neither replevin nor trover for conversion will lie by one tenant in common of a chattel against another for taking or disposing of the chattel. The plaintiff in such action must claim as sole owner and must stand or fall upon that claim.” The case of Hudson v. Swan, 83 N. Y., 552, is cited to support the foregoing statement. If the Hatch Lithographic Company and the plaintiff were tenants in common, then the defendant, The Sackett and Wilhelms Lithographic Company, upon the purchase of the joint property, became a tenant in common with the plaintiff. This is decided in the case of Fiero v. Betts, 22 Barb., 633, which declares that a purchaser at a judicial sale of the interest of one tenant in common becomes a co-tenant with the rightful owner of the other share. The sale does not destroy the tenancy in common. Assuming for the sake of argument that the Hatch Lithographic Company and the plaintiff in this action became tenants in common of the lithographic stones with the drawings thereon, and that by purchasing the stones the defendant became also a tenant in common with plaintiff, it is respectfully submitted that there is no such rule in law as that laid down in the opinion and quoted above. The case of Hudson v. Swan, supra, which is cited in support of that theory, does not in fact decide any such thing. An examination of the case discloses that it was an action of replevin brought to recover the possession of a horse, and the plaintiff set up sole ownership, when in fact he owned but one-half of the horse. All that the opinion of the Court of Appeals decides is that he must stand or fall upon the claim as pleaded, which was that of sole and exclusive ownership. The opinion in that case does hold that one ' tenant in common cannot maintain replevin against a co-tenant for taking a chattel merely, but it does not say that he. might not maintain replevin if a proper foundation were laid for the action. There can be no question but that the action can under proper circumstances be maintained by one tenant in common against his co-tenant, and it is to a discussion of this question that I wish to invite the careful attention of the court. An examination of the authorities is very instructive and interesting. Little-ton, 1 Inst., 199, b., § 323, illustrates the rule in his time, when he says: u If two be possessed of chattels personal in common by diverse titles, as of a horse, an ox, a cow, if the one takes the whole to himself out of the possession of the other, the other hath no other remedy but to take this from him who hath done the wrong to occupy in common when he can see his time.” And Coke, commenting on that passage, approves of it (1 Inst. 200, a.). Beginning with the statement of the law as just laid down, there will be found to have been an astonishing advance since that time. In this State it seems to have been formerly the rule that one tenant in common could not maintain trover against his co-tenant for merely dispossessing him, or excluding him from the enjoyment of the chattel, although he might do so if the chattel were destroyed or sold. This principle is upheld in Fiero v. Betts, 22 Barb., 633; Hyde v. Stone, 7 Wend., 354; S. C., 9 Cow., 230 ; Gilbert v. Dickerson, 7 Wend., 449 ; Mumford v. McKay, 8 Ib., 442 ; Farr v. Smith, 9 Ib., 338 ; White v. Osborne, 21 Ib., 72. I have merely cited these cases with a general statement of what they determine, because later cases, some in the Court of Appeals, have reaffirmed the doctrine with many important additions. In the case of Van Doren v. Balty, 11 Hun, 239, the defendant Baity had bought a harness and buggy at mortgage sale. Van Doren, the plaintiff, was present at the sale, and forbade the same in the hearing of Baity so far as his one-half of the buggy was concerned. Baity nevertheless bid in the property and afterwards refused to allow Van Doren to use the chattel and claimed exclusive ownership of it. We find the court enlarging upon the principle laid down in former eases, quoted above, as follows : “ A purchaser of the interest of one tenant in common at a mortgage sale of a chattel with notice of the tenancy becomes equally a wrongdoer with the mortgagor. The sale is a conversion. The purchase and assertion of exclusive ownership is a conversion.” The court cites wibh approval 2 Hillard on Torts, 246; Hyde v. Noble, 13 N. H., 494; Parker v. Middlebrook, 24 Conn., 207. In Osborne v. Schenck, 83 N. Y., 201, we reach the full fruition of our hope as we wander through the long list of cases and find this broad principle laid down : The possession and use of one tenant in common of a chattel, though it prevents the possession and use of the other, can furnish no ground for action, since it is rightful and rests on legal authority. But it also follows that if that possession develops into a destruction of the property or of the interest of the co-tenant, or into such hostile appropriation of it as to exclude the possibility of beneficial enjoyment by him, * * '* then a conversion is established.”

Y. The plaintiff having a title to the drawings, the defendant was guilty of a conversion when it refused to allow a transfer to be taken. And it matters not whether we treat the defendant as tenant in common or as bailee. The taking of a transfer from a lithographic drawing is done by the use of transfer paper, and it would have been a qualified and a somewhat unsatisfactory exercise of plaintiff’s right of property to have been compelled to accept a transfer in place of the drawings themselves, but he offered to take the transfer, and he thereby placed the defendant in the wrong. It was a demand, not that the defendant should do something, but that the defendant should allow the plaintiff, at his own expense, to possess himself of his property. All the authorities quoted to sustain Point IY. apply with greater force to this point.

Smith, Bowman & Close, attorneys, and Artemas B. Smith of counsel, for respondent, argued :—

I. Appellant had no right to the use or possession of the stones. This proposition is true as between the appellant and the Hatch Lithographic Company. But as against the respondent, the appellant has absolutely no right or claim whatever. There is not a scintilla of evidence that the respondent acquired the stones with a knowledge or notice of plaintiff’s claim herein, or of its agreement with the Hatch Lithographic Company. Besides such claim was not made in the complaint or at the trial. Such right to an immediate possession, is essential to the appellant’s right to recover for the conversion. See opinion of the trial judge and'authorities cited therein ; McConihe v. N. Y. & E. R. R. Co., 20 N. Y., 495, 497; Gregory v. Striker, 2 Denio, 629, and cases cited. On this subject the decision of this court in Dodworth v. Jones, 4 Duer, 201, cited by the judge below, seems clearly to determine this case. We cannot find that that case has ever been questioned or criticised in the many years since it was decided. On the contrary, the doctrine is sustained by other authorities. On the trial the learned counsel for the appellant claimed as a controlling precedent the case of Foster v. Ward, 9 Law Reports, Ireland, pp. 446, 468. A brief examination of that case will show that it is essentially distinguishable from this case. The contracts in the two cases were entirely dissimilar. In this case the appellant disclaims. ownership of the stones. It merely paid for the work of making the drawings or engravings. In Foster v. Ward, Mr. Foster paid for both the work and the materials supplied, and thus became the owner of the plates produced (p. 469). A further distinction is, that Ward & Company, the defendants in the other case, were the parties with whom Foster had made his contract. As that suit was in Chancery, the court had ample power to determine the rights of the parties. This case is an action at law, and the Hatch Lithographic Company is not before this court. The appellant’s claim that its right to the use or possession of the said stones was acquired by it as an incident to its said arrangement with the Hatch Lithographic Company and its copyrights in the designs engraved upon the stones, is without foundation in law. As above pointed out, the appellant only paid for the work of making the drawings. It made no claim to the ownership of the stones. It never claimed the possession thereof until after the respondent had acquired its interest and possession. Alike untenable is the appellant’s claim to the use of the stones as an accession to its copyrights. The copyrights of the designs or pictures engraved on the stones were separate and distinct properties from the stones, and the sale and delivery of the latter to the respondent did not carry with them any of the appellant’s rights under its copyrights. Stevens v. Gladding, 17 How. U. S., 447, 452.

II. Appellant failed to show that any. of its rights had been violated. As above pointed out, the appellant’s rights rested upon an agreement whereby certain of its copyrighted designs were put upon stones of the Hatch Lithographic Company for its exclusive use. This arrangement was- not for a definite period, and, therefore, either party was at liberty to terminate it at pleasure. Apparently the Hatch Lithographic Company elected to terminate the arrangement when it suffered the stones to be sold under foreclosure proceedings. The appellant makes no complaint of any infringement of his rights in the designs under the copyrights. But if such complaint were made herein it could not avail the appellant, because this court has not jurisdiction of the subject matter of copyrights. Potter v. McPherson, 21 Hun, 559, 562. Moreover, the transfer of said stones could in no way affect the plaintiff’s rights under his copyrights. Stevens v. Gladding, supra.

By the Court.—Freedman, P. J.

The motion for new trial was made on the minutes of the trial judge upon the grounds specified in section 999 of the Code of Civil Procedure. But the trial had been by a judge without a jury by consent of the parties. The section referred to in express language applies only to jury trials. The order appealed from must, therefore, be affirmed, irrespective of the reasons for which it was made.

Upon the appeal from the judgment it must be held that the complaint was properly dismissed for the failure of the plaintiff to establish title to the stones. The action being for conversion, the plaintiff was bound to establish title. The stones must be regarded as the principal and the impressions as a mere incident. The plaintiff could not acquire title to the stones by a mere offer to pay their value which was refused. The contract of the plaintiff was with the Hatch Lithographic Company, and the latter, and not the defendant, agreed to put upon certain stones certain drawings of the plaintiff and that the impressions were to be the property of the plaintiff and were to be used exclusively for the benefit of the plaintiff. But the Hatch Lithographic Company remained the absolute owner of the stones and was lawfully in the possession of them. It was conceded by the plaintiff that after the making of said contract the Hatch Lithographic Company, while so in possession, mortgaged the stones, that the mortgage was foreclosed, that on the sale the stones were purchased by Fuchs and Lang, and that the defendant purchased from them. It nowhere appears that the defendant-company, at the time it acquired title to the stones, had any knowledge or notice of the arrangement between the plaintiff and the Hatch Lithographic Company.

Under these circumstances conversion cannot be maintained by the plaintiff against the defendant based upon a mere refusal to deliver up the impressions, because a delivery of them cannot be made without giving up the stones. Nor is a mere refusal to permit a transfer to be made sufficient to sustain the action. Conversion would only lie, if at all, upon proof of the destruction of plaintiff’s interest in the impressions. Short of that, and under the special circumstances of this case, plaintiff’s remedy against the defendant is in equity. Moreover, the plaintiff clearly has a good cause of action against the Hatch Lithographic Company for breach of contract.

The authorities cited by plaintiff’s counsel have been duly examined, but they do not call for reversal. However true it may be as a general rule of our law of personal property, that no man can be divested of his property without his own consent, and that consequently even a bona fide purchaser from a person in the possession of property, who has no title to it and no authority whatever from the owner to sell or dispose of it, cannot acquire any title against the true proprietor, there are in fact numerous exceptions to the rule. Thus the law will in many cases imply an authority from the owner to sell, and where the owner has conferred an apparent right of property upon the vendor, or an apparent right of disposal, and has furnished the vendor with the external indicia of such right, and the vendor has sold the goods and delivered the possession thereof, the law will protect a purchaser who has acquired the property for a fair and valuable consideration, in the usual course of trade, and without any notice of any conflicting claim, or of suspicious circumstances calculated to awaken inquiry or to put him on his guard, although the goods were in fact obtained by the vendor from the true owner fraudulently. In the case at bar the difficulty with the claim of plaintiff’s company is that the said company saw fit to expend its money for impressions upon stones under a contract with a third party without acquiring title, or the right of immediate possession, to the stones themselves. .

For the reasons stated the complaint was properly dismissed, but as the dismissal was upon plaintiff’s own showing, and without making any findings, it should not have been upon the merits.

The judgment should therefore be modified by striking out the words “ upon the merits,” and as thus modified affirmed.

The affirmance of the judgment as modified should be without costs upon this appeal, but the respondent may have $10 costs and disbursements upon the affirmance of the order.

Dugro and Gildersleeve, JJ., concurred.


source: Caselaw Access Project

author: By the Court.—Freedman, P. J.

license: Public Domain

text:
    MARTHA G. SEGGERMANN, Appellant v. THE HILLIS PLANTATION COFFEE COMPANY, Respondent.

      Referee, decision of, upon conflict of testimony, must be final.

    In this case the conflict between the witnesses of the respective parties was quite marked, and the result depended upon the credibility of the witnesses in the judgment of the referee. Upon the case as presented on this appeal the court would not be justified in interfering with the decision of the referee on the ground that his findings were against the weight of evidence. Nor is there any merit in the claim that some of the facts found by the referee are not supported by the evidence. The facts being so found from the evidence, they support the conclusion of law based thereon, in conformity with which the judgment was entered.
    Before Freedman, P. J., Dugro and Gildersleeve, JJ.

      Decided July 5, 1892.
    Appeal from judgment entered upon the report of a referee.

      Yellott D. Dechert, for appellant.

      Campbell & Murphy, attorneys, and James Flynn of counsel, for respondent.
   By the Court.—Freedman, P. J.

The facts were determined by the referee upon conflicting testimony. The conflict between the witnesses of the respective parties was quite marked, and the result depended upon the credibility of the witnesses. The referee, in addition to hearing their statements, had the advantage of seeing them and observing the manner in which they gave their testimony. Upon the whole case as presented, the general term would not he justified in interfering with the decision of the referee on the ground that his findings were made against0 the weight of the evidence. Nor is there any merit in the claim that some facts found by him are not supported by evidence. The facts being as found, they support the conclusion of law based thereon, in conformity with which the judgment was entered.

I have also looked at the exceptions taken by the plaintiff to the rulings of the referee at the trial, but none of them presents ground for reversal.

The judgment should be affirmed, with costs.

Dugro and Gildersleeve, JJ., concurred.


text:
    JOSEPH W. LYNCH, et al., Appellants v. HENRY HUNNEKE, Respondent.

      Injunction—Lease, and agreement to lease, partly in writing and partly by parol—Parol testimony in regard to written documents and in explanation thereof.

    Upon the trial of the issues the trial judge, after hearing part of the testimony offered by the plaintiffs refused to hear the remainder, and dismissed the complaint upon the ground that the lease did not give the exclusive use of the entrance and hallway to the stairway leading to the premises leased to the plaintiffs, and did not prohibit the cutting and use of a door by the defendant, from the hallway into the saloon. This ruling was erroneous, as it was based upon the theory or conclusion of the judge that the lease itself constituted the whole contract between the parties, and that inasmuch as the lease did not in terms grant to plaintiffs the exclusive use and control of said hallway, evidence of a prior or contemporaneous oral agreement concerning said hallway was inadmissible, and so far as such evidence had been permitted to be given it must be disregarded.
    The general rule which excludes conversations, negotiations and parol agreements, prior to the execution of a written agreement relating to and springing out of such conversations, negotiations, etc., does not apply to this case. (1) When the original contract, although verbal, yet was entire, and only a part of it was reduced to writing, then all the part not so reduced can be proved by parol. (2) When the consideration, or a consideration further than that expressed in the writing, does not appear in the writing, the consideration or the further consideration may be proved by parol. Parol evidence is always admissible as to the meaning which the parties themselves attached to a particular word or phrase in the contract. Such evidence does not contradict or vary the terms of the written contract, but is simply explanatory thereof.
    The lease in question was for six lofts above the first floor, “ together with the appurtenances." These words gave to the plaintiffs whatever was attached to or used with the premises as incident thereto, and convenient or essential to the beneficial use and enjoyment thereof, and the plaintiffs took thereby any easement or servitude used or enjoyed with tlie leased premises ; and, as the appurtenances were not specified, parol evidence was admissible to show that the parties, preparatory to the execution of the lease, met and discussed their character and extent, and agreed that the appurtenances should include all that they appeared to include, and that the defendant would not make a change in such appearances in derogation of his grant ; and that in strict reliance upon the promise of the defendant, not to change the appurtenances as they then existed and were understood, the plaintiffs executed the lease.
    Parol evidence to this effect was partly given and partly offered to be given, but rejected. The plaintiffs did show that before the lease was executed the defendant proposed that, by express terms in the lease, he should reserve the right of cutting a door from the hall into the saloon, to which plaintiffs strenuously objected, and defendant expressly waived the point in plaintiffs’ favor. It must be assumed in this case that if the plaintiffs had been permitted to give in all the evidence competent under the issues, within the rules stated, they would have made out a prima facie case entitling them, in the absence of evidence to the contrary, to relief against the injurious use of the hall leading to their premises, or of the side door that was cut from said hall into the saloon.
    Por the reasons stated the dismissal of the complaint constituted error.
    Before Freedman, P. J., and Gildersleeve, J.

      Decided July 5, 1892.
    Appeal from a judgment entered in favor of defendant upon a dismissal of the complaint after trial at the equity term.

      Bullard & Shannon, attorneys and E. F. Bullard of counsel, for appellants, argued :—
    I. The court erred in ruling that the lease did not give the exclusive use of the hallway to the plaintiffs or prevent the cutting of a door from the hall into the saloon as described in the complaint. “ A grant of a thing will include whatever the grantor had power to convey, which is reasonably necessary to the enjoyment of the thing granted.” 3 Wash. on Real Prop., 419. “Some things pass by the conveyance of land as incident, appendant or appurtenant, such as a right of way or easement. If a house or store is granted, everything passes which belongs to, and is in use for it as an incident or appurtenant.” 4 Kent, 467; U. S. v. Appleton, 1 Sumner Rep., 492. “ The term appurtenance signifies something appertaining to another thing as principal, and which passes as incident to the principal thing.” N. Ips. Factory v. Batchilder, 3 N. H. Rep., 190; Havin v. Elliott, 10 Peters U. S., 25. If the defendant could not enter the saloon without cutting the door from the hall, the law would presume that he intended to reserve a right of way as a matter of necessity. “ But it must be strictly a way of necessity, and great convenience will not be sufficient.” Washburn's Easements, etc., 32. “ It cannot be denied that if a man builds a house and there is actually a way used, or obviously and manifestly intended to be used by the occupiers of the house, the mere lease of the house would carry with it the right to use the way, as forming a part of its construction.” lb. 27. Deeds are construed most strongly against the grantor. The lease carried the hall as much as the upper loft, because no reservation was made by the lessor. In the case of Schrymser v. Phelps, 33 Hun, 474, the mortgage released a certain portion of the premises, without reserving- a right of way which was used in the adjoining building, held the right of way was lost. So, in the case at bar, the defendant and his counsel wanted to make the reservation, but the tenant refused to hire with such reservation and the landlord waived it. “ The purchasers take with all the incidents and appurtenances which appear at the time of sale to belong to it.” Simmons v. Cloonan, 81 N. Y., 557.
    II. The plaintiffs had also a right to recover for the nuisance permitted by the defendant. The plaintiffs offered to prove these which were their main cause • of damage. Such acts were clearly admissible. 128 N. Y., 341. In such a case the landlord is hable and it amounted to an eviction if the plaintiffs had abandoned' the premises. Gerard on Titles to Real Estate, 185. If the landlord permits it he is equally liable. Hochstrasser v. Martin, 41 State Rep., 761. Thus when the owner rents premises knowing that they will be used as a bawdy house he can be convicted as a keeper. People v. Erwin Clark, 4 Den., 129. In this case the plaintiffs desired to keep a respectable house for persons of small means, and the lease restricted them from admitting females. Yet the defendant permitted a nuisance by allowing lewd women to enter the only hall by which the plaintiffs’ guests could enter, which ruined the business of the plaintiffs.
    III. The verbal contract proved that the door should not be opened, was an independent contract, and not excluded by the writing. Lewis v. Seabury, 74 N. Y., 409. The plaintiffs refused to take the lease except on those conditions and the defendant assented. • Such assent is equally binding as a direct promise.

      J. Homer Hildreth, attorney and of counsel, for respondent, argued:—
    I. The complaint being founded upon a written lease, executed by both parties to this action, the plaintiffs must stand or fall thereon. Reference to the lease in-evidence shows that the specific premises demised are the “ six upper lofts.” Nothing is said therein about the means of approach or entrance to said premises; and no provision is made therefor, except the language usual to all leases,—“ with the appurtenances.” These latter words it is well settled pass nothing but a privilege or easement, incident to the leasehold to-wit: free ingress and egress. See Co. Lit., 121; 1 Chit. Pr., 153, 154; 10 Peters R., 25. Hence nothing contained in said lease grants to plaintiffs the exclusive use and control of the ' entrance or hallway from Third avenue to said demised premises which is averred to be “ appurtenant thereto.”
    II. Recognizing such to be the fact, plaintiffs’ counsel thereupon sought, under the averments- of the complaint, to introduce evidence of a prior or cotemporaneous agreement, touching the use of said hallway and leasing of a lower floor to third parties. Such line of evidence was in the first instance admitted under defendant’s objection, by the court below, “ for what it is worth; ” but thereafter the plaintiffs having rested the court upon further deliberation granted the motion of defendant’s counsel for a dismissal of the complaint.
    III. The final disposition of the case by the justice sitting at special term, was the only one warranted by the pleadings and proofs, and in harmony with the settled law of this state because (a) The case at bar is within the rule not the exception; no oral collateral agreement to the lease is alleged in the complaint but at the most only a prior or eotemporaneous one, “ which led to the execution of said lease.” Neither is any fraud, mistake or ambiguity averred. The rule is the same in equity as at common law; and where a lease is in writing, the rights and duties of the parties depend upon the terms or legal intendment of the lease itself, as it is conclusively presumed that the whole engagement is embraced therein. Therefore the contract cannot be controlled by evidence that it was executed on the faith of eotemporaneous or preceding oral stipulation not embraced in it. Especially is this rule absolutely controlling in equity where it appears that the party knew of the nature and contents of the instrument signed. Wilson v. Deen, 74 N. Y., 531, 534, 536, 538. The principle so clearly asserted in Wilson v. Deen, supra, has since been faithfully followed and repeatedly affirmed, in spite of hardships admitted by the courts to exist in special cases. Eighmie v. Taylor, 98 N. Y., 288, 294, 297, 300; Englehorn v. Reitlinger, 23 J. & S., 485, Affirmed in the Court of Appeals. See 122 N. Y., 76, wherein the language of Rapallo, J., in Wilson v. Deen, supra, viz.: “ Writings would he of little value if they could always be controlled by oral evidence of what was said by the parties at the time of their execution ! ”— was expressly adopted as expressing the unchanged views of the court. See also, Thomas v. Scott, 127 N. Y., 133,139, 142, re-affirming the rule laid down in the previously cited cases. Likewise see Bohm v. Lies, N. Y. City Superior Court, April General Term, 1892, wherein the general rule is stated to he well settled that parol evidence must be excluded when offered to contradict or vary the terms or legal import of a written •agreement; and that an agreement being complete on its face, oral evidence offered to vary it was properly excluded by the court.
   By the Court.—Freedman, P. J.

The plaintiffs, by their complaint, alleged : That by a lease, duly executed under the hands and seals of the parties, the defendant demised to them the six upper lofts (consisting of three in front and three in the rear) of the buildings known as No. 2374 Third avenue in the city of New York, to be used and occupied by the plaintiffs as a first-class lodging house or hotel for lodgers of the male sex only, together with the appurtenances, for the term of three years from May 1, 1891, at a certain yearly rent; that in and by the said lease the defendant covenanted that the plaintiffs, on paying the said yearly rent and performing their other covenants contained in said lease, should and might peaceably and quietly have, hold and enjoy the said demised premises for the term aforesaid ; that when said lease was executed the lower room of the building was unoccupied; that the only entrance to said demised premises then and now, from Third avenue, is by a hall about six feet wide, with a front door and stairs in the hall leading to the second story, which front door and hall are appurtenant to the demised premises, without which the said demised premises could not be used; that during the negotiations which led to the execution of said lease the defendant stated in substance to the plaintiffs, that he might want to rent said lower floor for a saloon, and would like to cut a door from said hall into the lower room; that the plaintiffs then and there stated to the defendant that they would not hire the premises or execute said lease if such door was to be cut through or if the lower room was to be rented for a saloon; that the defendant then promised he would not do so, if the plaintiffs executed the lease, and thereupon the said lease was executed by both parties; that the demised premises have forty-four lodging rooms, and they are rented by the plaintiffs to respectable people only, for lodging purposes, and no beer or intoxicating drinks are sold on said premises, of which fact the defendant had due notice; that about July last the said defendant rented said lower room to one S. Buttner, who went into possession, and about October 1 commenced selling intoxicating drinks; that on the 15th day of October, 1891, said Buttner, or some one in his employ, without the consent of the plaintiffs, but with the permission of the defendant, cut an opening for a door from said hall into the lower floor or saloon, and placed a door therein ; that the plaintiffs immediately notified said defendant of the said door, and objected to the same and stated to him in substance that he would be held responsible if he did not have said door closed and keep the persons frequenting said saloon from entering the said hall; that ever since October 17th last the said saloon has been a disorderly house; that Buttner was succeeded by another tenant and that since that time the said room was kept partly as a resort for lewd women and partly as a pool-room; that lewd women and disorderly men have been in the constant habit of entering the said hall and passing through the said door into the said lower room and at times have been in the habit of making disorderly and loud noises and frequently as late as four o’clock in the morning ; that the plaintiffs protested against these occurrences but without success ; that it is necessary for the business of the plaintiffs that the front door leading from the street into said hall should be unlocked during the day and most of the night to allow their guests to come and go as their business might require; that by reason of the occurrences complained of and the passage of the persons complained of through said hall, many of the plaintiffs’ guests, have been compelled to abandon the demised premises.

Upon these and other allegations not necessary to be specifically mentioned, including allegations of damages sustained and that the plaintiffs have no adequate remedy at law, the plaintiffs prayed that the defendant, his agents and tenants, be restrained from entering the hall leading from the front door to the upper stories occupied by the plaintiffs; that the said defendant be compelled to close up the door leading from said hall into the saloon or lower room of the building; that the plaintiffs recover their damages already sustained, etc., etc.

The defendant, by his answer, admitted the execution and delivery of the lease as alleged by the plaintiffs, but in all other respects denied the allegations of the complaint.

Upon the trial of these issues the learned judge, after hearing part of the testimony, offered by the plaintiffs, refused to hear the remainder and dismissed the complaint upon the ground that the lease did not give the exclusive use of the hallway to the plaintiffs and did not prohibit the cutting of a door from the hall into the saloon. This ruling seems to have proceeded upon the theory that the lease constituted the whole contract between the parties and that, inasmuch as the lease did not in terms grant to the plaintiffs the exclusive use and control of the hallway, evidence of a prior or contemporaneous oral agreement concerning said hallway was inadmissible and so far as it had been permitted to be given, had to be disregarded.

In this I think the learned trial judge erred.

The general rule which excludes conversations, negotiations, and parol agreements prior to the execution of ' a written agreement relating to and springing out of such conversations, negotiations, etc., does not apply. (1) When the original contract, although verbal, yet was entire, and only a part of it was reduced to writing, in which case the part not so reduced can be proved by parol j and (2) When the consideration, or a consideration further than that expressed in the writing, does not appear in the writing, in which case the consideration, or the farther consideration, may be proved by parol. Hope v. Smith, 35 N. Y. Superior Ct. R., 458, affm’d 58 N. Y., 380.

So parol evidence is always admissible as to the meaning which the parties themselves attached to a particular word or phrase in the contract. Such evidence does not contradict or vary the terms of the written contract, but is explanatory thereof.

In the case at bar the lease was for the six lofts “ together with the appurtenances.” These words gave to the plaintiffs whatever was attached to or used with the premises, as incident thereto, and convenient or essential to the beneficial use and enjoyment thereof, and the plaintiffs took any easement or servitude used or en-with the demised premises. Doyle v. Lord, 64 N. Y., 432.

As the appurtenances were not specified, parol evidence was admissible to show their character and extent, and that being so, parol evidence was admissible to show that the parties, preparatory to the execution of the lease, met and discussed such character and extent, and agreed that the appurtenances should include all that they appeared to include and that the defendant would not make a change in such appearances in derogation of his grant, and that in strict reliance upon the promise of the defendant not to change the appurtenances as they then existed and were understood, the plaintiffs executed the lease.

Parol evidence to this effect was partly given and partly offered to be given, but rejected. Moreover the plaintiffs did show that before the lease was executed, the parties did meet and had a discussion ; that in the course of it the defendant proposed that he should be allowed in express terms to be inserted in the lease to reserve the right of cutting a door from the hall into the saloon, and that the plaintiffs so strenuously objected to it, giving reasons for their objections, that the defendant expressly waived the point in plaintiffs’ favor.

Under all the circumstances as they appear at present, it must be assumed that the plaintiffs, if they had been permitted to give all the evidence which was competent under the issues within the rules above stated, would have made out a prima facie case entitling them, in the absence of evidence to the contrary, to some relief against the injurious use of the hall leading to their premises or of the side door cut from said hall into the adjoining saloon.

For the reasons stated the dismissal of the complaint constituted error.

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

Gildersleeve, J., concurred.


author: By the Court.—Dugro, J.

text:
    THOMAS F. MILLER, Appellant v. HENRY HOLMES, Respondent.

      Slander—Variance between the proofs and the allegations of the complaint, when disregarded.

    The allegation of the complaint was to the effect that defendant had said of the plaintiff that he had robhed him of four hundred dollars. At the close of the plaintiff’s case the evidence did not warrant more than an inference that defendant had said that the plaintiff had robbed him of twelve hundred dollars. Leave to amend the complaint so as to conform the same to the proof was denied, and the complaint was dismissed because of variance. Sold, to be error, as a variance between an allegation in a pleading, and the proofs is not material unless it has actually misled the adverse party to his prejudice.
    Before Freedman, P. J., and Dugro, J.

      Decided July 5, 1892.
    Appeal from a judgment entered upon a dismissal of the complaint at the trial.

      Maurice Meyer, attorney, and A. C. Palmer of counsel, for appellant, argued :—
    I. It is not necessary, in order to render words imputing a crime actionable, that there should be the same certainty in stating the crime imputed as would be requisite in an indictment for it. Miller v. Miller, 8 Johns., 74; Gibbs v. Dewey, 5 Cow., 503. If the words, in their natural and ordinary sense, import a criminal charge, they are actionable.
    II. Variance in the slanderous words proved from those charged, disregarded when they could mislead. Boynton v. Boynton, 43 How., Ct. of Appeals. There is no pretense here that the defendant was misled by the allegation in the complaint, as to the amount he charged plaintiff with robbing him of. He certainly was prepared to defend the action as to $1,200, or any other amount, having denied all of the allegations of slander in his answer.
    III. The court will not allow a formal objection of a variance to defeat an action, when it is evident no injury would be sustained by the objector other than depriving him of the mere formal advantage; the court will remedy the defect, even after trial. Every v. Merwin, 6 Cow., 360. The materiality of the variance may be apparent on the pleadings, and in such cases it must be the duty of the court either to exclude the evidence creating the variance or so to amend the pleading as to admit its introduction. Lyon v. Blossom, 4 Duer, 318. When it appears the party was not and could not have been misled, variance between complaint and proof may be disregarded without amendment. Chapman v. Carolin, 3 Bosw., 456. Section, 541 of the Code of Civil Procedure is: “ Where however the allegation to which the proof is directed is unproven, not in some particular or particulars only, but in its entire scope and meaning, it is not a case of variance, but a failure of proof.” It is sufficient to prove the substance of the words alleged, if spoken in .same person, as alleged. Miller v. Miller, 8 Johns., 74. It is sufficient to make out a cause of action for slander, that some part of the slanderous words charged were spoken, and that they were substantially the same, in force and meaning, as those alleged. Schoonoven v. Beach, 23 Weekly Dig., 348.
    IV. The court must, upon application, allow a pleading to be amended at any time during the pendency of the action, even on appeal, if substantial justice will be promoted thereby. Enright v. Seymour, 8 State Rep. C. P. Subject to the limitation, that the party was misled or taken by surprise, there is no restriction upon the power of amendment of pleadings on trial, where the amendment is in favor of justice. Van Ness v. Bush, 14 Abb., 33. A complaint in false imprisonment may be amended at trial, by adding allegations of special damage, if they are proved. Clemons v. Dairs, 4 Hun, 260. In slander, the complaint may be amended at trial, by adding the names of parties. Wood v. Gilchrist, 1 C. R., 117. There can be no new cause of action here; the words charged were spoken at the time alleged in the complaint, and there is no dispute about the words, “ You, Tom Miller, you stole ” (whether $400 or $1,200), is all that is necessary to allege or prove ; there is no material variance; the complaint should have been amended on motion of plaintiff’s counsel, to conform to the proof. Enright v. Seymour, supra.

      Wager & Acker, attorneys for respondent, argued:—
    I. In an action for tort the cause of action alleged must be proved. The cause of action alleged was not proven, but a different cause of action, hence a failure of proof under Section 541 of Code. Place v. Minster, 65 N. Y., 89; Arnold v. Angell, 62 Ib., 508.
    II. In action for tort complaint cannot be amended at trial by adding a new cause of action. Plaintiff having failed to prove either of the causes of action alleged, his complaint was properly dismissed.
   By the Court.—Dugro, J.

This is an appeal from a judgment dismissing a complaint in an action for slander.

In the complaint there is, among other things, an allegation that the defendant had said of the plaintiff that he had robbed him of four hundred dollars.

At the close of the plaintiff’s case the evidence did not warrant more than an inference that the defendant had said that the plaintiff had robbed him of twelve hundred dollars.

Leave to amend his complaint so as to conform to the proof was denied plaintiff and his complaint dismissed •because of variance.

This was error, for a variance between an allegation in a pleading and the proof is not material, unless it has actually misled the adverse party to his prejudice, etc. § 539 Code Civil Proc.

I think the law upon the subject briefly stated is, “ where the allegation and proof vary as to the words, it is enough if plaintiff proves that a distinct slanderous charge alleged, which is separable from any other unproven words alleged, was uttered in substantially the. Words alleged, it not appearing to have been materially qualified by other words not alleged.” Abbott’s Trial ^Evidence, page 661.

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

Freedman, P. J., concurred.


text:
    FREDERICK SEGGERMANN, et al., Plaintiffs v. NAPOLEON VALENTINE, et al., Defendants.

      Contract for purchase of property by plaintiffs and sale to defendants at a price named, together with freight charges, actual expenses advanced and one per cent, additional—Question as to expenses.

    Subsequent to the delivery of the goods, it appeared .that they had been ^ undervalued at the Custom House, in the original entry, and plaintiffs ' were compelled to pay $474.38 additional duties, which they sought to recover from defendants as actual expenses incurred, etc. Defendants claimed that said $474.38 was paid as a fine or penalty for an under-valuation of the property for which defendants should not be held liable, etc.

      Held, It matters not whether the payment be considered as for a fine for under-valuation or for an additional duty ; if it was for an expense advanced, within the meaning of the term “ expenses ” as used in the contract, the defendants must pay it. A fair interpretation of the word leads to the conclusion that it included the duties or fines. The parties so interpreted the contract in the payment of the first duties imposed, and as the fine does not appear to have been imposed through any fault of plaintiffs, the exceptions should be overruled.
    Before Dugro and Gildersleeve, JJ.

      Decided July 5, 1892.
    The trial judge directed a verdict for the plaintiffs in this case for amount claimed in the complaint, ordering the exceptions to be heard in the first instance at the general term.

      Charles Currie, attorney, and W. Wickham, Smith of counsel, for plaintiffs.

      John H. Parsons, attorney and of counsel, for defendants.
   By the Court.—Dugro, J.

The exceptions were ordered to be heard in the first instance at general term.

In July, 1890, plaintiffs and defendants contracted as follows : The plaintiffs agreed to take 5,000 crates of onions to he imported at a stated cost and freight, paying defendants cash on arrival, and taking all risk of importation; the defendants to insure goods under their policy and to pay plaintiffs for the actual expenses advanced. There were other terms in the contract unnecessary to state.

Plaintiffs imported 5,000 crates of onions, one half for defendants, and received payment from defendants of all that was claimed, including one half the amount of duty paid upon the whole original import entry.

Subsequently upon a reappraisement of the goods it appeared that they had been undervalued in the original entry at the Custom House and that the duty paid was $36.50 less than that which should have been paid. By reason of this fact an additional duty of $912.06 was payable under the laws of the United States on the whole importation.

These two amounts the plaintiffs paid and they now ask that the defendants contribute one-half.

The complaint sets forth that import duties to the amount of $510.48 accrued, Avhich plaintiffs paid on defendants’ behalf and for their account, and on account of which there is still unpaid $474.38.

The answer denies that these duties were paid, hut admits the payment of $66.10 as duties and sets forth that the $474.38 referred to in the complaint Avas paid, if at all, as a fine or penalty for an undervaluation in the entry of the onions for which the defendants should in no manner be held liable.

It will be observed that the defendants contend in their answer that the mere fact that the $474.38 was paid as a fine or penalty for an undervaluation is sufficient defence to the plaintiffs’ claim.

Now, it matters not whether the payment be considered as for a fine for undervaluation or for an additional duty; if it was for an expense within the meaning of the term expenses ” as used in the contract, the defendants should pay it.

A fair interpretation of the word leads to the conclusion that it included the duties or fines. The parties themselves interpreted it to include the import duty.

The plaintiffs were necessarily compelled to pay the amount in question, and as the fine does not appear to have been imposed through any fault of plaintiffs (in fact it is not pleaded to have been imposed through the plaintiffs’ fault) the exceptions should be overruled and the plaintiffs should have judgment upon the verdict, with costs.

Gildersleeve, J., concurred.


text:
    GEORGE T. NEWHALL, Respondent v. WILLIAM H. APPLETON, et al., Appellants.

      Contracts—Canvasser’s commissions on orders obtained for publications —Acceptance shown by reception and, entry on the firm, books.

    In an action to recover commissions claimed to be earned by plaintiff as a canvasser of the defendants’ publications, the principal contention was the construction to be placed upon the words of the contract, which was oral. The plaintiff testified to the effect that in a conversation with the head of defendants’ serial department it was agreed that he was to receive $4 “an order for each order that he took” for the publications other than the cyclopedia, and §15 “ an order ” for the cyclopedia. Blank subscription papers were supplied by the defendants to the plaintiff, who procured the signatures to the papers of a number of persons in Texas and Louisiana and forwarded the same by mail to the defendants. The plaintiff produced evidence tending to show that the subscription papers so signed were “ orders ” within the meaning of the contract, upon acceptance of which he was entitled to the agreed commissions. The defendants contended that the expression “four dollars an order” had a well settled meaning in the business and was so understood by the parties to the contract, viz.: that the commission was to be regarded as earned only after the subscriber had taken and paid for two parts or numbers of the work subscribed for. The referee refused to find to this effect but did find that upon acceptance by the defendants of the orders, the commissions became due, and that defendants did so accept the orders. Held, that no error was committed by the referee in so ruling. If the referee erred in finding that the agreement in question was that the plaintiff should be paid when his orders were delivered to defendants and accepted by them, he only erred in finding that an acceptance by defendants was a part of the agreement, and such an error could not prejudice defendants. There was evidence that an order became a good order upon acceptance by defendants, and such acceptance was shown, as in the present case, by the reception of the orders and entry thereof in the firm books.
    Before Sedgwick, Ch. J., Dugro and Gildersleeve, JJ.

      Decided July 5, 1892.

      Appeal by defendants from a judgment entered upon the report of a referee in favor of the plaintiff. The facts are sufficiently stated in the head-note. For record of former appeals see 15 J. & 8., 38; 17 lb., 238; 22 lb., 557; 25 lb., 343; 26 lb., 585.

      Campbell & Paige, attorneys, and E. W. Paige of counsel, for appellants.

      W. W. Badger, for respondent.
   By the Court.—Dugro, J.

If the referee erred in finding that the agreement in question was that the plaintiff should be paid when his orders were delivered to the defendants, and accepted by them, he only erred in finding that an acceptance of the orders by the defendants was part of the agreement, and such an error could not prejudice the defendants.

There is evidence which will sustain a finding that the orders were accepted.

The witness Rowland states that the only difference between an order and a good order is that the latter must be accepted by the house, and that an order becomes a good order as soon as the house receives it and enters it on the books.

It follows that an order which has been received and entered on the books is one that has been accepted. There is evidence that the orders were received and entered on the books.

Upon the whole case the judgment should be affirmed.

Gildersleeve, J., concurred, Sedgwick, Ch. J., not voting.


author: By the Court.—Gildersleeve, J.

text:
    MARY McKAY GREENWOOD, et al., as Executors, etc., Respondents v. THE MANHATTAN RAILWAY COMPANY, et al., Appellants.

      Damages by elevated railroad—Evidence as to rents of neighboring properties by entries in books of deceased owner—Written leases executed and recorded as evidence of rents, when competent.

    For the purpose of showing the rents of certain properties in the vicinity of plaintiffs’ premises, in an action to secure damages to rental value by an elevated railroad, and thereby to establish a course of rental value, it is competent to put in evidence entries of rents received, made in the handwriting of deceased owner of the premises, in books kept for that purpose, even though unauthenticated by any direct proof as to the time when they were made or as to the knowledge possessed by the person making them. The entries having been made prior to the coming of the elevated railroad, it is not to be supposed that decedent would have had any motive for falsifying his entries in contemplation of bringing a suit for loss of rental value against the elevated railroad company. The entries were made in the ordinary course of business by a third person now dead ; they related to matters presumably within his peculiar knowledge and were to a certain extent admissions against his interest. There was apparently no particular motive to pervert the facts.
    The plaintiffs also sought to establish certain rentals by putting in evidence certain written leases duly executed and recorded but unauthenticated by any proof of possession under them or payment of the stipulated rent. Meld, that the objections to the leases were properly overruled. While not conclusive, the agreed rent is a strong evidence of the real value of the use and occupation, and is worthy of admission as evidence. Where a lease is properly executed and recorded the presumption is that it is bona fide ; and the burden of proof was upon defendants to show that there were separate arrangements allowing the lessees to pay less than the rents called for by the leases, or that the leases were never acted upon. Schule v. Cunningham, 54 N. Y. Super Ct., 302, distinguished.
    Before Freedman, P. J., Dugro and Gildersleeve, JJ.

      Decided July 5, 1892.

      Appeal by defendants from a judgment, entered on the verdict of a jury, in favor of the plaintiffs, and from an order denying defendants’ motion for a new trial.

      Davies & Rapallo, for appellants.

      Robert S. Rudd, for respondents.
   By the Court.—Gildersleeve, J.

The judgment awards to the plaintiffs $7,000, damages, together with $549.04, costs, for the rental loss sustained by the plaintiffs in their premises Nos. 31 and 33 Vesey street, in this city, by reason of the erection and operation of defendants’ elevated railroad.

The defendants’ counsel relies, in his argument for a reversal of the judgment, upon two alleged errors of the trial judge in the admission of evidence, namely, the admission of entries made by deceased persons in the books of the Meeks’ Estate, unauthenticated by any direct proof as to the time when they were made or as to the knowledge possessed by the persons making them; and also the admission of the leases of various properties, unauthenticated by any proof of possession under them or of the payment of the stipulated rent.

The objections to the admission of the leases, we think, were properly overruled. The agreed rent is a strong evidence of the real value of the use and occupation, Moore v. Deyoe, 22 Hun, 222. It is not, of course, conclusive evidence, but it is some evidence, and is worthy of admission. The defendants’ counsel insists that the plaintiffs should have proved that the leases were acted upon, and were not waste paper; that the lessees took possession of the premises, and paid the rent stipulated for in the leases, and that there were no separate arrangements by which the lessees were allowed to pay less than the rents specified in the leases. But where a lease is properly executed and recorded, the presumption is that it is bona fide; and the burden of proof was upon the defendants to show that there were separate arrangements allowing the lessees to pay less than the rents called for by the leases, or that the leases were never acted upon.

Nor do we think the defendants’ objection to the admission of the entries, made in the books of the Meeks’ Estate, well taken. Edward B. Meeks testified that he was the executor of Joseph W. Meeks, deceased, who, in his lifetime,, was the owner of Nos. 14,16, 28 and 30, Vesey street; that in 1876, two years before the death of his father, the said Joseph W. Meeks, he took charge of the books relative to the rents of these buildings for his father ; that when he so took charge of said books, he found certain entries relative to such rents in the books kept by his father for some years prior to 1876, which entries were made in the handwriting of his father or of his brother, also deceased, who had kept the books for his father previous to 1876 ; and that these entries had been made prior to 1876, the time when witness took charge of said books. As the elevated railroad was not built in 1876, it is not to be supposed that the witness’s deceased father would have had any motive for falsifying his entries, in contemplation of bringing a suit for loss of rental value against the railroad company. These entries were to a certain extent made against the interest of the party making them, since they were an admission of payment of rent to him by his tenants; they were entries made in the ordinary course of business; the matter was, presumably, within the peculiar knowledge of the party making them, and there was, apparently, no particular motive to pervert the facts. The party is dead, and his entries in his books are offered in evidence. They are entries made by a third person in his own books in the ordinary course of business. We are of opinion that it was not error in the court below to receive them in evidence. 1 Greenleaf on JEüidence, §§ 116 and 120; Brewster v. Doane, 2 Hill, 537; see also, Jermain v. Denniston, 6 N. Y., 276.

A careful examination of the case of Schule v. Cunningham, 54 N. Y. Super. Ct., 302, relied upon by defendants’ counsel as authority for his contention, discloses a difference that renders it inapplicable to the case at bar. In that case, it did not appear that the entry of the deceased physician, sought to be put in evidence, was of a character usually made in the course of professional duty or in the ordinary course of business of a physician; nor was there anything in the entry or any extraneous proof to show when it was'made. In its opinion, the court, Sedgwick, Ch. J., said: The entry did not disclose when it was made. Indeed, part of it indicated that that part was made after the fact referred to was declared to have occurred. Take it altogether it seems to be a condensed history of observations made in times that had passed.” The court did not hold that the entries were incompetent evidence, but that their admission was error because plaintiff failed to prove all the conditions which the law affixes to entitle them to admission.

There are no other questions presented bn this appeal that are of sufficient importance to require discussion.

The judgment and order appealed from are affirmed, with costs.

Freedman, P. J., and Dugro, J., concurred.