text:
    EMELINE L. FITCH, Respondent v. THE BROADWAY AND SEVENTH AVENUE RAILROAD COMPANY, Appellant.

      Excessiveness of damage, when verdict not disturbed on that ground.

    Before Fbeedman and Ingeaham, JJ.

      Decided June 27, 1890.
    Appeal by defendant from judgment entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendant’s motion for a new trial.

      Root & Clarke, for appellant.

      Lexoio & Haldane, for respondent.
   By the Cotjet.—Fbeedman, J., (Ingeaham, J., concurring).

The only point presented-by the appellant is that upon the whole case the judgment should be reversed because the damages awarded by the jury were excessive. The action is for personal injuries. I have examined the evidence with care and I fail to see how, considering the nature of the injuries and the amount of pain and suffering endured by the plaintiff, the verdict which is for $7,000, can be held to be excessive. Cases are to be found in large numbers in which larger recoveries have been sustained for similar injuries.

The judgment and order should be affirmed, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    FRANCIS LAHEY, Appellant v. GOUVERNEUR KORTRIGHT, et al., Respondents.

      Extra allowance subject matter involved—Where in an action to be relieved from purchase of real property the defendant (the vendor) for a counter-claim demands specific performance by the plaintiff, and obtains judgment in his favor upon the counter-claim, the court may grant him an allowance based on the value of the property the title to which the plaintiff is adjudged to accept.

    Before Freedman and Trtjax, JJ.

      Decided June 27, 1890.
    Appeal from judgment entered after trial before the court without a jury, and from an order giving defendants an extra allowance.

      James F. Malcolm, attorney, and Samuel Jones of counsel, for appellant.

      Platt & Bowers, attorneys, and John M. Bowers of counsel, for respondents.
   The Court (Trtjax, J., writing, Freedman, J., concurring) affirmed the judgment, holding that appellant’s points on the appeal from the judgment had been determined against him in Lahey v. Kortright 56 Superior Court R. 527, and affirmed the order, holding as stated in the head note.


text:
    RUTHETTE BOGARDUS, Plaintiff v. FRANCIS CARAGHER, Defendant.

      Broome Street, number 20, covenants and restrictions in grant of Mayor, etc., recorded in. the Register's office in Liber 191 of Conveyances, page 261, are not encumbrances or clouds on the title thereof.

    Before Freedman and Truax, JJ.

      Decided June 27, 1890.
    Submission of controversy on an agreed state of facts.

      J. E. Luddon, for plaintiff.

      George W. McAdam, for defendant.
   The Court, upon the facts, agreed to hold as stated in the head note.


text:
    GENEVIEVE N. A. BAKER, Respondent v. EDWARD C. CROSBY, as Executor, etc., Appellant.

      Assigmnent of policy of life insurance, possession of the policy not necessary to its validity—Delivery of policy and its acceptance, the question of is frequently one of intention depending on the circumstances of the transaction.

    Before Freedman and Truax, JJ.

      Decided November 3, 1890.
    Appeal, from a judgment in favor of plaintiff entered upon the decision of a judge at special term.

      William C. Holbrook, for appellant.

      Darby & Bell, attorneys, and James D. Bell of counsel, for respondent.
   The Court, in affirming the judgment (Freedman, J., writing, Truax, J., concurring) held as stated in the head note.


text:
    THOMAS MORTIMER, Respondent v. JACOB DOELGER, et al., Appellants.

      Verdict not disturbed where there is conflict of testimony, when—The real question litigated at the trial was as to rate of the compensation plaintiff was to receive for his services; there was conflict of evidence on this issue; neither side asked for the direction -of a verdict on the ground of any alleged preponderance of evidence or any other ground; the casewentto the jury under a charge which carefully guarded the respective rights of the parties to which no exception was taken. Held that the verdict could not be disturbed.

    Before Freedman and Ingraham, JJ.

      Decided November 3, 1890.
    Appeal from a judgment entered in favor of the plaintiff upon the verdict of a jury, and from an order denying defendants’ motion for a new trial on the minutes.

      Michael C. Gross, for appellants.

      Hugh Coleman, for respondent.
   The Court, in affirming the judgment and order (Freedman, J., writing, Ingraham, J., concurring), held as stated in the head note, and cited Keeler v. Barretts, etc., Dyeing Establishment, 54 N. Y. Super. Ct. Rep. 369.


text:
    CHARLES C. TABER, et al., Respondents v. THE NEW YORK ELEVATED RAILROAD COMPANY Appellant.

      In this action brought to recover damages for alleged wrongful acts of defendant it was set up as a defence that plantiffs stood by and saw the acts being done and never objected, remonstrated or interfered to prevent it.—Held tliat the admission of evidence that plaintiffs protested against defendants acts in entering into the vaults of their building and putting posts there was not error.—Stipulation limiting the number of real estate expert witnesses to three on each side, is not violated by calling in addition to three such experts an owner of real estate who does not claim to be an expert, but simply testifies to facts within his knowledge.

    Before Freedman and Trdax, JJ.

      Decided November 3, 1890.
    Appeal from a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial.

      Davies & Rapallo, for appellant.

      John E. Parsons, for respondents.
   The Court, in affirming the judgment and order (Truax, J., writing, Freedman, J., concurring), held, among other things, as stated in the head note.


text:
    Morris Goldstein, Appellant v. Henry Parker, Respondent.
    Decided March 4, 1890.
    Appeal from a judgment entered upon a dismissal of the complaint at the trial.
    Goodhardt & Phillips, for appellant. H. Joseph, for respondent.
    Before Truax and Dugro, JJ.
   The question involved was, whether the evidence was sufficient to carry the case to the jury. The Court held (Dugro J., writing, Truax, J., concurring), that it was not, and affirmed the judgment.


text:
    Valentine Hammann, Respondent v. Richard Jordan, Appellant.
    Decided March 4, 1890.
    Appeal from a judgment entered in favor of plaintiff upon a verdict directed by the court.
    A. Britton Havens, for appellant. Jacob F. Miller, for respondent.
    Before Truax and Dugro, JJ.
   The question involved was whether the evidence did not call for a submission to the jury. The Court (Dugro J., writing, Truax, J,, concurring) held that it did and reversed the judgment.


author: The Court (Per Curiam)

text:
    George C. Johns, Respondent v. The Press Publishing Company, Appellant,
    Decided March 4, 1890.
    Appeal from an order vacating an order for the examination of the plaintiff before answer,
    DeLancy Nicoll, for appellant. Artemas B. Smith, for respondent.
    Before Sedgwick, Ch. J., and Freedman, J.
   The Court (Per Curiam)

affirmed the order on the authority of Roberts v. The Press Publishing Company, 57 N. Y. Superior Court R. 526.


text:
    Bennett J. King, Appellant v. Abraham Liebeskind, et. al., Respondents.
    Decided March 4, 1890.
    Appeal from an order denying a motion of the plaintiff for an order that plaintiff have judgment against the defendant on his demurrer to the complaint as frivolous, and for the relief demanded in the complaint,
    Charles H. Smith, for appellant. Franklin Bien, for respondents.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.
   The pleadings were not before the general term. For that reason the Court (Per Curiam) held there was nothing to show that the court below erred, and affirmed the order.


author: Per Curiam.

text:
    Robert Morrison, Respondent v. The Metropolitan Elevated Railroad Company, Appellant.
    Decided March 4, 1890.
    Appeal from a judgment entered upon a verdict of a jury and from an order denying a motion for a new trial made upon the minutes.
    Davies & Rapallo, for appellant. Calvin & Breck, for respondent.
    Before Sedgwick, Ch. J., and Freedman, J.
   Per Curiam.

Judgment and order affirmed with costs.


text:
    Francis Dougherty, et al., Respondents v. Henry J. McGuckin, impleaded, Appellant.
    Decided March 5, 1890.
    Appeal from a judgment entered on the report of a referee.
    Daniel P. Mahony, for appellant. Hector M. Hitchings, for respondents.
    Before Sedgwick, Ch. J., and Freedman, J.
   Per Curiam.

Judgment affirmed with costs.


text:
    Ada L. James, Appellant v. James McCreery, Respondent.
    Decided April 14, 1890.
    Appeal from an order staying all proceedings on the part of the plaintiff until payment of the costs of an action brought by Edward F. J ames against the defendant.
    Edward F. James, for appellant. W. F. Dunning, for respondent.
    Before Sedgwick, Ch. J., and Dugro, J.
   Per Curiam.

Order affirmed with $10 costs and disbursements, to be taxed.


text:
    Mary V. Amerman, Respondent v. Bertha Deane, Appellant.
    Decided April 21, 1890.
    Motion for a re-argument.
    W. J. Townsend, for respondent. John H. Deane, for appellant.
    Before Sedgwick, Ch. J., and Freedman, J. The decision in respect of which the motion was made will be found in 57 N. Y. Superior Court Rep. 175. The motion was denied, the following opinion being delivered.
   Per Curiam.

The opinion written in the case did not by any expression recognize the fact that equity is said to give fuller compensation than is gained by an action at law. That did not affect the substance of the decision which intended to affirm that neither equity or law would give as damages what in reality was not damages. Motion denied with ten dollars costs.


text:
    Charles H. Loeber, Respondent v. Isaiah L. Roberts, Appellant.
    Decided May 5, 1890.
    Appeal from an order requiring a bill of particulars.
    A. S. Cushman, for appellant. William C. Beecher, for respondent.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.
   Per Curiam.

The order should be modified so as to require defendant to furnish a bill of particulars specifying the materials referred to, or in case he states in the bill that he is unable to specify them, or any of them, to give a sufficient reason why he is unable to be more specific, and further to give the description of such materials as fully as he is able to. The order as thus modified should be affirmed with costs.


text:
    Robert W. Forbes, Respondent v. Frederick Haas, Appellant.
    Decided May 5, 1890.
    Appeal by the defendant from a judgment entered upon a verdict for the plaintiff and from an order denying a motion for a new trial made upon the minutes.
    Samuel Greenbaum, for appellant. Henry S. Forster, for respondent.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.
   The judgment and order were affirmed with costs, (Sedgwick, Ch. J., writing, Freedman and O’Gorman, JJ., concurring).


text:
    Richard V. Harnett, Appellant v. Robert E. Westcott, as President, Respondent.
    Decided May 5, 1890.
    Motion by defendant for re-argument.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.
   Motion granted upon defendants paying costs of motion. Freedman, J., dissenting (no opinion).


author: The Court (Per Curiam )

text:
    Samuel G. Brown Appellant v. Emil Ney, et al., Respondents.
    Decided May 5, 1890.
    Appeal by plaintiff from a judgment in favor of defendants entered upon the verdict of a jury, and from an order denying plaintiff’s motion for a new trial.
    Morris S. Wise, for appellant. Charles Strauss, for respondents.
    Before Sedgwick, Ch. J., and Freedman, J.
   The Court (Per Curiam )

affirmed the judgment and order.


text:
    John D. Demarest, Appellant v. William Koch, impleaded, Respondent.
    Decided May 5, 1890.
    Appeal from a.judgment entered in favor of defendant Koch against plaintiff on the report of a referee.
    S. V. R. Cooper, for appellant. Augustus Ford, for respondent.
    Before Truax and Dugro, JJ. The question involved was whether under the provisions of a certain contract, Koch, one of the parties thereto, was liable to third parties as" a partner with the other party thereto.
   The Court (Per Curiam)

held he was not, and affirmed the judgment.


author: The Court

text:
    Samuel H. Huxford, Respondent v. Matilda S. Stoddart, Appellant.
    Decided June 27, 1890.
    Appeal by defendant from judgment entered in favor of plaintiff upon the verdict of a jury, and from an order denying defendant’s motion for a new trial.
    Alexander Thain and George William Hart, Jr., for appellant. Truax & Crandell, for respondent.
    Before Freedman and O’Gorman, JJ.
   The Court

held (Freedman, J., writing, O’Gorman, J., concurring) that the judgment and order should be affirmed with costs.


text:
    Albert Nolte, Respondent v. The Manhattan Railway Company, Appellant.
    Decided June 27, 1890.
    Appeal from judgment entered in favor of plaintiff upon the verdict of a jury, and from an order denying defendant’s motion for a new trial.
    Davies & Rapallo, for appéllant. Charles Steckler, for respondent.
    Before Freedman and Truax, JJ.
   The Court

held (Freedman, J., writing, Truax, J., concurring) that the judgment and order should be affirmed with costs.


text:
    William Wills, Appellant v. The Union Bottling Company, Respondent.
    Decided June 27, 1890.
    Appeal from a judgment in favor of the defendant upon the verdict of a jury, and from an order denying plaintiff’s motion for a new trial made on the minutes on all the causes specified in section 999 of the Code.
    Hatch & Warren, for appellant. Morgan & Walker, for respondent.
    Before Truax and O’Gorman, JJ.
   The only question involved was one of fact, viz. : whether plaintiff, in June, 1883, resigned his office of treasurer. Held (Truax J., writing, O’Gorman, J., concurring ) that that question was properly left to the jury ; and that as there was evidence to warrant the verdict of the jury the judgment and order should be affirmed with costs.


text:
    George T. Newhall, Respondent v. William H. Appleton, et al., Appellant.
    Decided June 27, 1890.
    Appeal from a judgment for the plaintiff entered on the report of a referee.
    William W. Badger, for plaintiff. Campbell & Paige, for defendants.
    Before Freedman and Truax, JJ.
   The only question involved was one of fact. The general term (Per Curiam) affirmed the judgment with costs.


text:
    Lucien Barnes, Respondent v. James R. Keene, Appellant.
    Decided June 27, 1890.
    Appeal from judgment entered in favor of the plaintiff upon the verdict of a jury, and from an order denying defendant’s motion for a new trial. .
    Shipman, Barlow, Larocque & Choate, for appellant. S. H. Randall, for respondent.
    Before Freedman and Truax, JJ.
   Per Curiam.

Judgment and order affirmed with costs.


text:
    Robert J. Irwin, Appellant v. Edward M. Brown, et al., Respondents.
    Decided June 27, 1890.
    Appeal from an order of interpleader.
    Martin & Smith, for appellant. Hoffman Miller, for respondents.
    Before Freedman and Truax, JJ.
   Per Curiam.

Order affirmed with costs and disbursements.


text:
    John Petersen, Appellant v. John Swan, Respondent.
    Decided June 27, 1890.
    Appeal by plaintiff from a judgment in favor of defendant, entered upon a verdict directed by the court.
    Hart & Price, for appellant. James K. Hill, Wing & Shoudy, for respondent.
    Before Freedman and Ingraham, JJ.
   Per Curiam.

Judgment affirmed, with costs, on the authority of 53 N. Y. Superior Ct. R. 151.


text:
    George W. White v. Mary Reed, as Executrix, etc., et al.

    Decided June 27, 1890.
    Motion to re-settle order dated first Monday of December, 1887.
    Before Freedman and Ingraham, JJ.
   Per Curiam.

Order re-settled.


text:
    New York Life Insurance Company, Plaintiff v. James Aitkin, as Executor, etc., Defendant.
    Decided June 30, 1890.
    The case was tried before the court and a jury. A verdict was ordered for the defendant and the trial judge ordered the exceptions to be heard in the first instance at the general term.
    Henry G. Atwater, for plaintiff. Johnston & Johnston, for defendant.
    Before Truax and Dugro, JJ.
   Per Curiam.

The plaintiff’s exceptions are overruled and judgment is ordered for the defendant, with costs.


text:
    John Townshend, Plaintiff v. Catharine J. McGuire, et al., defendants. John Townshend, Plaintiff v. Edward V. Loew, et al. Defendants.
    Decided July 8, 1890.
    Decided July 8, 1890.
    In both these cases exceptions were ordered to be heard in the first instance at the general term upon trials before the court and a jury, verdicts being ordered for defendants.
    John Townshend, for plaintiff. John C. Shaw, for defendants.
    Before Truax and Ingraham, JJ.
   Per Curiam.

The exceptions were overruled and judgment ordered for defendants on the verdicts, with costs, on the authority of Townshend v. Frommer, 57 Superior Court R. 90.


text:
    Clayton Platt, Appellant v. The Pennsylvania Railroad Co., Respondent.
    Decided November 3, 1890.
    Appeal from a judgment dismissing the complaint on the report of a referee.
    Nathaniel A. Prentiss, for appellant. Robinson, Scribner & Bright, for respondent.
    Before Freedman and Truax, J J.
   The only question involved was one of fact, and the judgment was affirmed, with costs, on the opinion of the referee.


text:
    Josephine Stampfer, Respondent v. Siegmund, alias William Stampfer, Appellant.
    Decided November 3, 1890.
    Appeal from an order granting plaintiff an allowance for counsel fee.
    Louis Ansbacher, for appellant. Samuel D. Sewards, for respondent.
    Before Freedman, Truax and Ingraham. JJ.
   Per Curiam.

The order was reversed and motion denied, without costs, on the authority of Beadelston v. Beadelston, 103 N. Y. 402.


text:
    Emilie Raberg Noel, Respondent v. H. Bencke Lithographic Company, et al., Appellants.
    Decided November 3, 1890.
    Appeal from a judgment entered on the verdict of a jury in favor of plaintiff, and also from a judgment dismissing counter-claims set up bythe Lithograph Company, on the merits.
    Hatch & Warren, for appellants. De-Lancy Nicoll, for respondent.
    Before Freedman and Ingraham, JJ.
   The Court held (Ingraham, J., writing, Freedman, J., concurring) that the judgments should be affirmed, with costs.


text:
    Eliza W. White, et al., Respondents v. Edward M. Benjamin, Appellant.
    Decided November 3, 1890.
    Appeal from an order directing defendant to furnish a bill of particulars.
    Whitlock & Simonds, for respondents. Smith & Dougherty, for appellant.
    Before Freedman and Ingraham, JJ.
   Order affirmed with $10 costs.


author: By the Court.—Ingraham, J.

text:
    LEOPOLD WORMSER, et al., APPELLANTS v. ISAAC LEVY, Respondent.

      Action for injunction to restrain a party from using or carrying on business under a geographical name (Westchester) that had been used by the plaintifffor a number of years exclusively asairade mark or name for his business, &c.

    The evidence and the findings of the trial judge were to the effect that the defendant and his associates, in the year 1878, established and carried on business under the name of “The Westchester Hat Company ” and afterwards, and in the year 1880, established and carried on business in Brooklyn under the name of “ The Westchester Clothing Company.” That since 1880 the defendant has conducted and carried on business in New York city, and advertised the same under the name of the “New York and Westchester Clothing Company,” and as such was advertised in Westchester County and became well known under that name to the residents of Westchester County. That the name of “ The Harlem and Westchester Clothing Co.” was not adopted and used by the plaintiffs until October, 1881.

      Held, that it clearly appearing that the name of “ The Harlem and Westchester Clothing Co.” was not adopted by the plaintiffs until 1881, they cannot prevent the use by the defendant of the name “ Westchester ” when it was adopted and used by defendant as a name under which his business was carried on before it was adopted by the plaintiffs. The case from the plaintiffs’ standpoint does not present a strong claim for equitable relief. The stores of the plaintiffs and the defendant are a mile apart. The names adopted by each are not alike; neither are manufacturers of goods, and there is no question of trade mark in the case. According to plaintiffs ’ evidence the defendant was using this title a short time after plaintiffs adopted the name which they seek to protect, and plaintiffs have allowed, without objection or protest, the use of the name by defendant for over seven years, and this tends to show an acquiescence in the use by the.defendant of the name adopted by him. That it is not necessary to determine the question as to whether or not a party can, by adopting a geograph - ical name, under which he does business, acquire such a property right to use that name as to prevent others from using it in any combination for the same purpose. The judgment was right and should be affirmed.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided January 5, 1891.
    Appeal from judgment entered upon a decision of the court at special term.

      Johnston & Johnston, attorneys, and Edward W. S. Johnston of counsel, for appellants.

      Horwitz & Hershfield, attorneys, and Otto Horwitz of counsel, for respondent.
   By the Court.—Ingraham, J.

The defendant testified positively that he and his brother did business at his present place- of business in the year 1878 as “ The Westchester Hat Company ” ; that subsequently, in the year 1880, they started a store at 138 Ewen street, Williamsburg, and that that business was carried on under the name of The Westchester Clothing Co.”; and his testimony was corroborated by his brother and others.

While it cannot be said that their evidence is free from criticism, the trial judge, having heard the testimony' and seen the witnesses, his finding of fact cannot be disturbed. The trial judge found as follows.

“V. The defendant, in the year 1878, associated with himself in his said business his brother Louis Levy, and thereupon an addition was made to said business of dealing in hats, under the name of the ‘Westchester Hat Company,’ and the business was carried on and such name used for a few months, when the hat business was discontinued.

“ VI. The defendant, in the year 1880, formed a copartnership with his brother Louis Levy and one Jacob Bach, who thereupon opened a retail clothing business at 138 Ewen street, in the city of Brooklyn, New York, and that said parties at that time began the use of the name ‘Westchester Clothing Company’ in the carrying on of said business.

“VIII. The defendant has had, since 1880, conspicuous signs in and about his place of business at number 2714 Third avenue, New York city, containing the words ‘ New York and Westchester Clothing Company; ’ and his business which was, on or about the year 1882, enlarged to take in three stores, has been from that time until the present advertised in the Westchester Times newspaper, and has become well known to the residents of what was formerly Westchester county under said name.”

The name of the “Harlem and Westchester Clothing Co.” was not adopted by the plaintiffs until October, 1881. It is clear that the plaintiffs cannot prevent the use by the defendant of the name “ Westchester ” when it was adopted and used by defendant as the name under which his business was carried on before it was adopted by the plaintiffs.

The case from the plaintiffs’ standpoint does not present a strong claim for equitable relief. The stores of the plaintiffs and defendant are more than a mile apart. The names adopted are not alike, one being the “Harlem and Westchester Clothing Company” and the other the “New York and Westchester Clothing Company.” Neither are manufacturers of goods ; there is no question of trade mark, and according to plaintiffs’ own evidence the defendant was using this title within a short time after the plaintiffs adopted the name which they seek to protect, and the plaintiffs have allowed, without objection or protest, the defendant to use the name for upward of seven years, although for a time having a branch store directly opposite the defendant’s store and being thus competitors in business. All this tends to show an acquiescence in the use by the defendant of the name adopted by him. It is not, therefore, necessary to determine the interesting question as to Avhether or not a party can, by adopting a geographical name as the name under which he does business, acquire such property right to use that name as to prevent others from using it in any combination for the same purpose.

I think the judgment was right and should be. affirmed, with costs.

Sedgwick Ch. J. and Freedman, J., concurred.


author: By the Court. — Ingraham, J.

text:
    REUBEN B. AYRES, Appellant v. THE QUIGLEY FURNITURE COMPANY, Respondent.

      Action on special contract to recover commissions upon sales that defendant should make by reason of an introduction by the plaintiff to the defendant.

    The contract in this case specified the service that the plaintiff was to perform, namely: he was to .introduce the defendant to one Seghers, and for that introduction he was to receive from defendant a commission of five per cent, upon all goods that should sell through such introduction. The cases cited by the respondent as to the obligations which a broker assumes, and which he must perform before he is entitled to commissions, do not apply to such a contract.

      Held, that if the jury believed the testimony of the plaintiff they would have been justified in finding a verdict for the plaintiff for the percentage on the sales obtained through this introduction. Whether or not the sale of the furniture was procured through this introduction depended upon inferences to be drawn from the facts testified to, and although the evidence be uncontradicted the question is one of fact and not of law, and for the' determination of the jury, and should have been submitted; and the dismissal of the complaint was error.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided January 5, 1891.
    Appeal from judgment entered on the dismissal of the complaint.

      J. M. Ferguson, attorney, and Warren Highley of counsel, for appellant.

      Kernan Brothers & Quinn, attorneys, and William, P. Quinn of counsel, for respondent.
   By the Court. — Ingraham, J.

—The complaint alleged a special contract whereby the defendant agreed to pay to the plaintiff a commission of five per cent, upon any sales which the said defendant should make by reason of the introduction by the plaintiff of one Seghers • to the defendant. The plaintiff to prove this allegation testified as follows : “I then asked him (the president of the defendant) if he would give me a commission of five per cent, if I would introduce him to this man, on all goods that he might sell through this introduction ; he said that he would.” This evidence is denied, but it was sufficient to sustain a finding of the jury that the contract as alleged in the complaint was made.

The contract thus sued on is a special contract for the payment of a certain specified amount for the performance of a certain specified service, and it thus differs from an employment of a broker to sell goods.

In such a case the law implies an obligation upon the part of a broker to procure a purchaser ready and willing to enter into the contract upon his employer’s terms, and he is not entitled to commissions until he has performed this obligation. Wylie v. Maine National Bank, 61 N. Y. 415; Sibbald v. Bethlehem Iron Co., 83 Ib. 378.

In this case, however, the contract, as alleged, specified the service that the plaintiff was to perform : he was not to procure a purchaser, ready to purchase the defendant’s goods, but he was to introduce the defendant to a person named, and for that service he was to have a commission of five per cent, upon all goods that the defendant should sell “ through this introduction.”

The cases cited by the respondent as to the implied obligation which a broker assumes, and which he must perform before he is entitled to commissions, do not apply to such a contract.

The plaintiff testified that he did introduce the person named to the defendant, and if the jury believed his statement they would, I think, have been justified in finding a verdict for the plaintiff for the percentage named upon the sales through the introduction.

I think, also, that the evidence would have sustained a finding of the jury that the sale that was afterwards made to the Chadbóurne Furniture Co., was made through the introduction of Seghers to the president of the defendant. Seghers after the introduction went to defendant’s factory, examined the goods, ascertained the price of certain goods of which a list was made, and delivered this list to the officers of the Hotel Company; subsequently the same goods were purchased from the defendant by the Chadbourne Furniture Co. and resold to the Hotel Company.

• Whether or not the sale of this furniture was through this introduction depended upon inferences to be drawn from these facts, and in such a case, although the evidence be uncontradicted, the question is one of fact and not of law, and for the determination of the jury.

I think, therefore, that the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Sedgwick Ch. J., and Freedman J., concurred.


text:
    BEETHOVEN PIANO-ORGAN COMPANY, Respondent v. C. C. McEWEN CO., Appellant.

      Fraud, discovery of, by means of creditors—Action,forms adopted for perpetration of fraud, are of little importance—Pleading, deemed to allege what can be implied from its allegations.

    In this case Clarence C. McEwen, a minor, commenced business in his own name in October, 1886, for the benefit of his father, Edson H. McEwen, and the business was conducted by money supplied to said Edson II. Mc-Ewen by his wife Grace E. McEwen. That Clarence C. McEwen obtained on credit from the plaintiff merchandise for which he gave promissory notes endorsed by said Edson H. McEwen. That said Clarence C. Mc-Ewen being a minor, confessed judgment to the defendant, Grace E. Mc-Ewen, and on such judgment execution issued; and the property held in the name of Clarence C. McEwen was levied upon and sold by the sheriff under said execution and was bought in by said Grace E. McEwen. And thereafter the corporation-defendant, the “ C. C. McEwen Co.,” Was organized, of which Clarence C. McEwen was the president and Grace E. McEwen was treasurer, and the property purchased by the latter under the execution was turned into said corporation and the capital stock issued therefor.

      Feld, that under such circumstances the property of Clarence C. McEwen which was lawfully applicable to the payment of the plaintiff’s judgment can be followed into the hands of the corporation-defendant and applied to the payment of the plaintiff’s judgment. The officers of the corporation had knowledge of the fraud, and the organization of the corporation was part of the devise by which the property of the judgment debtor was to be divested from him so that it could not be reached and applied to the payment of his just debts. The corporation cannot be said to be a bona fide purchaser of the property for value. Its officers had knowledge of the fraud and were instruments in its perpetration. The organization of the corporation was evidently for the purpose of carrying out the fraudulent scheme. The mere forms adopted for the perpetration of fraud are of little importance. Schemes of fraud may be so cunningly devised as to blind the eye of justice, but they must not escape condemnation and reparation when discovered, and it is the duty of a court of equity to look beneath the surface and when the fraud appears, no matter what forms have been adopted to conceal it, redress the wrong done. It is well settled that a pleading on demurrer is deemed to allege what can be implied from its allegations by reasonable and fair intendment and facts impliedly averred and traversable in the same manner as though directly averred. It is sufficient that the requisite allegation can be fairly gathered from all the averments of the complaint although the statements of them may be argumentative and the complaint be deficient in technical language. Applying this rule the complaint alleges facts from which the inference of fraud is plainly inferred.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided January 5, 1891.
    Appeal from interlocutory judgment entered on an order overruling a demurrer to the complaint.

      M. L. Townsend, for appellant, argued:—
    It is difficult from the complaint to understand whether the pleader intended to bring an action in the nature of a bill of discovery under section 1871 of the Code, or to set aside as fraudulent and void the alleged transfer by Edson H. McEwen to his wife of moneys, and the confession of judgment by Clarence to Grace McEwen, and the sale of the property thereunder and the subsequent transfer of the property to the defendant corporation. The prayer for relief in the'complaint is broad ; but nothing can be predicated of the prayer unless there are facts stated in the complaint justifying the judgment prayed'for. So far as the defendant corporation is concerned, nearly all the averments in the complaint are immaterial and irrelevant. If the action is for a discovery, then there' is no averment that the defendant corporation has any property belonging to the judgment debtor, either by a secret or any other trust or by a fraudulent transfer. If the action is to set aside the transfer of the personal property turned over to the defendant corporation at the time of its organization, then there is no averment either that the transfer was without consideration, or that it was made with intent to hinder, delay or defraud creditors of Edson H. McEwen, much less plaintiff. So far as the action is to set aside the confession of judgment and the sale thereunder, the defendant corporation has nothing to do with it, as that occurred before the organization of the company, and the defendant corporation was not a party to it, nor is there any averment of collusion or fraud on the part of the defendant corporation. The only facts averred in the complaint in any manner affecting the defendant corporation are in paragraphs XVIII. and XIX. Neither in these paragraphs nor elsewhere in the complaint is there any averment, either, (1.) Of any fraud committed by the defendant corporation upon the plaintiff or that the property was transferred without consideration ; or (2.) That the property which was turned over or transferred to said defendant corporation was transferred for the purpose of hindering, delaying or defrauding the creditors of Edson H. McEwen, the judgment debtor; or (3.) That the defendant corporation holds any property in trust for the judgment debtor; or (4.) That there was any collusion by the defendant corporation with the co-defendants. Without any averment of some or all of the above facts, no cause of action is stated against the defendant corporation. The defendant “ C. C. McEwen Co.," is a corporation organized under the laws of the state and had a lawful right to issue its capital stock for the purchase of property and the corporation as such is .in no manner affected by any equitable rights existing in favor of plaintiff against Edson H. McEwen or any' other stockholder of said corporation. If,- as averred in the complaint, the defendant Edson H. McEwen has indirectly through his.-wife or otherwise a large interest in the capital stock of the defendant corporation, the plaintiff has undoubtedly a right in a proper proceeding to reach such interest through •a receiver or otherwise. But we insist that the fact that a judgment debtor is the owner of some of the capital stock of the corporation furnishes no ground for sequestrating the property of the corporation itself. •The corporation is in law a person, and all its stockholders have rights which must be protected. There are other stockholders than the defendant.
    No fraud can be imputed to the corporation nor presumed upon any facts stated in the complaint. Plaintiff’s judgment upon which the action is founded was recovered October 31, 1889. There is no averment when the debt was created upon which the judgment was recovered nor any averment that the judgment debtor was indebted to plaintiff within the ten years within which, it is averred, he transferred property to his wife, nor- that he was indebted to plaintiff in 1886, when the son Clarence commenced business in his own name. Nor is there any averment that the moneys with which Clarence carried on busi-1 ness belonged to his father, Edson. This averment in the complaint about Clarence being a minor, and carrying on business, and confessing a judgment and the issuing an execution thereon and the sale of property thereunder, are immaterial and irrelevant so far as the defendant corporation is concerned. There are no facts stated in the complaint upon which can be predicated any judgment against the defendant corporation and the complaint is insufficient.

      Henry C. Andrews, for respondent, argued :
    I. It is admitted by the defendant that the complaint sets out a good cause of action against the defendants Edson, Grace and Clarence C. McEwen, but it is objected that no sufficient cause of action is set forth as against the defendant, the C. C. McEwen Co., because the company was a bona fide purchaser for value from the defendant Grace E. McEwen of the property sought to be reached. The error in this contention is that it is assumed that the company was a bona fide purchaser of the property in question, whereas, as a matter of fact, said company had, through its president, the defendant Clarence C. McEwen, full knowledge of all the transactions which constituted the attempted fraudulent transfer of the property, and which transfer was now sought to be set aside. The defendants Clarence C. McEwen and Grace E. McEwen were the very persons who made the confession of judgment under which the property was sought to be transferred from Clarence to Grace, and which property was shortly after transferred by Grace to the defendant company. It appears that the judgment debtor, Edson H. McEwen, had for the past ten (10) years, and while owing the debt on which judgment was obtained against him, advanced to his wife, Grace E. McEwen, fifty thousand dollars ($50,000) from time to time and at various times, and that Grace had loaned it to defendant Clarence, a minor, who was nominally doing business in his own name but really for his father, Edson. That Clarence being a minor, made a void confession of judgment to his mother, Grace, and under the void judgment so obtained the defendant Grace levied upon, sold and bought in in her own name the property sought to be reached by this action. The company having acquired the property by*the issue of stock and from the action of its officers, the only question to be determined is whether the company was a bona fide purchaser for value and thereby took title to the property so that it can hold it as against the creditors of Edson H. McEwen, who really owns it and whose money was originally used in acquiring it. The defendants Grace and Clarence, of course, had full knowledge of all the proceedings by which the void confession of judgment was made between them, for they were the parties who committed the acts complained of. The complaint alleges that Clarence C. McEwen is the president and Grace the treasurer of the defendant corporation, and that they both were trustees and incorporated the company with two others. The company therefore had knowledge of all the facts that its officers, the president, treasurer and trustees, had. This has long been well-settled law in this state. Fulton Bank v. N. Y. & Sharon Canal Co., 4 Paige, 127; McEwen v. Montgomery Co. Mut. Ins. Co., 5 Hill, 101; N. Y. & N. Haven R. R. Co. v. Schuyler, 34 N. Y. 30; Holden v. N. Y. & Erie Bank, 72 Ib. 286; Village of Port Jervis v. 1st Natl. Bk., 196 Ib. 55; Craige v. Hadley, 99 Ib. 131; Gibson v. Natl. Park Bank of N. Y., 98 lb. 87. The McEwen Company thus having full knowledge, through its officers, of the fraud attempted by its president and treasurer, and that the pretended confession of judgment and sale thereunder gave Grace E. McEwen no title as against the creditors of Edson, the company stood in no better position than its officers Clarence and Grace themselves. The company took the property charged with all the defects in the title of its vendors. This is expressly .held in Rothschild v. Mack, 115 N. Y. 1. At page 8 the court say : “ That an assignee of a party taking property through fraud takes it subject to such defect of title.” And the company is even responsible for the fraud of its officers. Bank of U. S. v. Davis, 2 Hill, 451. Approved in Cragie v. Hadley, 99 N. Y. 131, where at page 134 the court say : “ A corporation may be in a legal sense guilty of a fraud.”
    II. The omission • to characterize the action of the company in taking the property in question does not affect the validity of the complaint. The rule is that the pleadings should state the facts and. not evidence of the facts, nor conclusions. Bogardus v. N. Y. Life Ins. Co., 101 N. Y. 328; Swart v. Boughton, 35 Hun, 281. The complaint states that Clarence and Grace E. Mc-Ewen were guilty of a fraudulent intent in depriving creditors of Edson’s property, by means of the pretended confession of judgment, etc. It further states that Clarence and Grace were president and treasurer of the defendant company, and it follows, as a matter of law from these facts, that the company was chargeable with notice of the fraud, and even with its consequences.
    III. The complaint alleges that the capital stock of the company was issued for the purchase of the property in question, and that the judgment debtor, Edson H. McEwen, has a large interest therein through his wife. This allegation is the equivalent of saying that Grace E. McEwen still holds the entire capital of the defendant company, there being no allegation that she has parted with any of it, and the presumption being, in absence of anything to the contrary, that the matters continue as they were. That being so, it comes within the equitable jurisdiction of this court to restore the wrong that has been perpetrated upon the creditors of Edson H. McEwen, and also upon the incorporation of the pretended transfer to the corporation of property to which the vendor, Grace E. Mc-Ewen, could give no good title. If it shall appear in the evidence that the allegations of the complaint are true, and that Grace E. McEwen had no title to the property, and that she still holds all the stock of the defendant company, the court can decree that the stock be returned to the company, and that the property be applied to the payment of the debts of the judgment debtor.
    IV. The company has paid no consideration for the property that cannot be restored to it. It attempted to acquire the property by the issue of its stock to Grace E. McEwen. It appears that she still holds the whole of this, and the company can, without harm to it, be restored to the position in which it was before the attempted acquisition of the property. In the language of the court of appeals, in Rothschild v. Mack, 115 N. Y. at page 8, the court say: “ An action in the nature of an action of assumpsit lies against one who has obtained money from another by a fraud, and such a claim is a proper subject of set-off in an action brought by the party against whom it exists. An assignee of such party takes a cause of action subject to such defence. This money thus obtained is, in contemplation of law, money received for the use of the party who is defrauded, and the law implies a promise on the part of the person who thus obtains it to return it to the rightful owner.” The McEwen company, therefore, hold the property for the use of the creditors of Edson H. McEwen, and cannot avail themselves of a claim that they are bona ficle purchasers for value.
    V. The complaint showing a good cause of action against the three individual defendants, and the company not being a bona fide purchaser for value, and therefore not taking a good title as against plaintiff, it follows that the plaintiff has a right to proceed against the property in the hands of the defendant corporation, and the corporation is a proper party defendant. It stands in the relation of a trustee to the plaintiff, in regard to the possession of the property, to the extent of plaintiff’s claim. 2 Pomeroy Equity, § 1048, and cases cited.
   By the Court.—Ingraham, J.

The complaint alleges that the defendant, Clarence C. McEwen, a minor, commenced business in his own name about the 1st of October, 1886, for the benefit of his father, Edson H. McEwen, and the said business was conducted with money supplied said Edson H. McEwen through his wife, the defendant, Grace E. McEwen, and otherwise. That said Clarence C. McEwen obtained from plaintiff merchandise on credit and gave promissory notes therefor endorsed by said Edson H. McEwen. That said Clarence C. McEwen, being a minor, confessed judgment to the defendant, Grace E. McEwen, which judgment was void, and that upon such judgment an execution was issued and the property held in the name of said Clarence C. McEwen was levied on and sold by the sheriff of the city and county of New York under said execution and bought in by said Grace E. McEwen.

It is clear that upon these allegations plaintiff, as a.judgment creditor of Edson H. McEwen, who had exhausted his remedy at law, could maintain an action to have the property of the judgment debtor so transferred by this fraudulent device, applied to the payment of his judgment.

The complaint then alleges that the parties to the fraud organized the defendant corporation; that the defendant, Clarence C. McEwen, was the president and Grace E. McEwen was treasurer, and that the property so purchased by said Grace E. McEwen was turned over to said corporation and the capital stock issued therefor. I can see no reason why, under such circumstances, the property which was lawfully applicable to the payment of the plaintiff’s judgment cannot be followed in the hands of the corporation. The officers of the corporation had knowledge of the fraud, and, assuming these allegations are true, it is clear that the organization of the corporation was part of the device by which the property of the judgment debtor was to be divested so that it could not be reached and applied to the payment of his debts. The corporation cannot be said to be a bona fide purchaser of the property for value. Its officers had knowledge of the fraud; in fact were instrumental in perpetuating the fraud, and the organization of the corporation was evidently for the purpose of carrying out the fraudulent scheme. The mere forms adopted for the perpetration of fraud are of little importance. Schemes of fraud may be so cunningly devised as to blind the eye of justice, but they must not escape condemnation and reparation when discovered. Rice v. Manley, 66 N. Y. 87. And it is the duty of a court of equity to look beneath the surface, and when the fraud appears, no matter what forms have been adopted to cover it up, to redress the wrong done.

The rule is now settled “ that a pleading on demurrer is deemed to allege what can be implied from the allegations therein by reasonable and fair intendment and facts impliedly averred and traversable in the same manner as though directly averred. It is sufficient that the requisite allegation can be fairly gathered from all the averments of the complaint although the statement of them may be argumentative and the complaint be deficient in technical language.” Marie v. Garrison, 83 N. Y. 23. And applying this rule I think the complaint alleges facts from which the inference of fraud are plainly implied.

It does not appear that there are any innocent parties who have rights that will be injuriously affected by granting the relief asked for. If it appears that such parties exist the court has ample power by final judgment to protect them.

I think, therefore, that the judgment appealed from was right and that it should be affirmed, with costs.

Sedgwick, Ch. J., and Freedman, J., concurred.


text:
    EDWIN A. W. HUNTER, et al., Respondents v. GEORGE H. STEGE, et al., Appellants.

      Warranty, expressions of mere opinion as to the quality of the goods, is not sufficient to establish same—Verdict, direction for.

    In this case, the defendants failed to deny any allegations of the complaint, but set up as a special defence a breach of warranty of the goods sold, and asked to deduct the damages sustained by such breach from the amount due to plaintiffs. On the trial the defendants assumed the affirmative, and sought to prove the warranty and their damages. The person who represented the plaintiffs at the sale did not warrant the eggs as good, or of any particular quality; what he did say was, “ That they were a nice lot of eggs.” “You will lose hardly anything out of a case of eggs.” The defendants’ representative examined the eggs and purchased upon such examination.

      Held, that there was no evidence to sustain the defence. There was no warranty that the eggs were good. The expressions of the plaintiffs’ representative amounted to nothing more than an opinion. That there being no express warranty, the rule “caveat emptor” applies. That under the evidence it was the duty of the court to direct a verdict in favor of the plaintiffs and the assumed claim or fact that the jury would not have rendered such a verdict without such a direction, is no reason to disturb the verdict rendered, and the incident that happened at the trial is immaterial.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided January 5, 1891.
    Appeal from judgment on verdict of a jury.

      Adolph L. Sanger, for appellants.

      Hamilton R. Squier, for respondents.
   By the Court.—Ingraham, J.

The complaint alleged a sale of goods to the defendants. The answer failed to deny any allegation of the complaint and set up as a special defence a breach of warranty, and asked to deduct the damages sustained by reason of« such breach from the amount due to plaintiffs.

On the trial the defendants assumed the affirmative. The point was not made on the trial, nor was it taken on this appeal that the affirmative defence was a counterclaim and admitted because of the failure of the plaintiffs to reply.

The plaintiffs were, therefore, entitled to a direction of a verdict in their favor unless the defendants proved their affirmative defence set up in the answer, and at the close of the evidence offered by the defendants, plaintiffs asked that a verdict be directed for the amount claimed. This motion we think should have been granted.

There was no evidence to sustain the defence. The person who represented the plaintiffs at the sale did not warrant the eggs as good or of any particular quality. He expressed his opinion as to the quality of the eggs but it was nothing more than an opinion. What he said was “ That they were a nice lot of eggs,” and “you will lose hardly anything out of a case of eggs.”

The defendants’ representative examined the eggs himself and purchased them upon such examination, and there being no express warranty the rule caveat emptor applies.

As it was the duty of the court to direct a verdict in favor of the plaintiffs, the fact that the jury would not have rendered such a verdict without such a direction is no reason to disturb such a verdict when rendered, and the incident that happened at the end of the trial was immaterial.

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

Sedgwick, Ch. J., and Freedman, J., concurred.


text:
    JOHN TOWNSHEND, Respondent v. CAROLINE O. BOGERT, et al., Impleaded, &c., Appellants.

      Partition, action of proper parties thereto.

    This action is in partition and, as against the defendants, now appellants, the complaint alleges: “ That the said defendants claim some right, title or interest in said premises, the exact nature of which is unknown to plaintiff, and which is a cloud upon the title of said premises,” and asks •judgment that they have not any right, title or interest, claim or demand, of, to, or upon, or against said premises or any part thereof,” and that said defendants “ be forever barred and foreclosed by the sale,” etc. A good cause of action for partition is set forth as against the other defendants. The defendants (now appellants) demurred to the complaint (1.) That it did not state facts sufficient to constitute a cause of action. (2.) For improper joinder of causes of action not affecting all the parties. The court at special term overruled the demurrer.

      Held, That actions of partition are regulated by the Code of Civil Procedure, sections 3532 to 1595, inclusive. Sections 1538 to 1540, inclusive, contain the provisions as to the proper parties to such an action. Section 1538 provides who must be made parties, but the provisions of the latter section, do not apply to these defendants (appellants). Sections 1539 and 1540 provide who may be made parties (at the election of plaintiff). There is no provision made in any of these sections for making a person who merely claims an interest in the property a party. Before a person can be properly made a party to such an action, he must either have an estate in the premises or in some portion thereof, or he must have alien or interest which attaches to the entire property or to an undivided share or interest therein, and the share or interest of each defendant must appear from the complaint. Section 447 of the Code of Procedure does not permit the plaintiff in an action of partition to include and make a person a party to the action who claims adversely to the plaintiff and compel such person as a party to litigate his interest in the property in the action of partition. An action in partition cannot be instituted and maintained to determine the title to real property or to ascertain who holds the legal title thereto. It cannot be made a substitute for an action in ejectment or other action to establish the legal title of adverse claimants to real estate. If the allegations of the complaint were sufficient to maintain an action to declare the interest claimed by the defendant a cloud upon the title to the premises, or to compel a determination of a claim of defendant to some estate therein, ye.t neither of these causes of action could be joined with a cause of action for a partition of real estate. The demurrer should have been sustained.

      Before Sedgwick, Ch. J., and Ingraham, J.

      Decided January 5, 1891.
    Appeal from interlocutory judgment overruling the demurrer to the complaint.

      Dillaway, Davenport & Leeds, attorneys, and John S. Davenport of counsel, for appellants, argued:—
    I. The complaint does not bring these defendants within the sections of the Code permitting their joinder as parties defendant. Section 1539 is that the plaintiff “ may make a person having a lien or interest which attaches to the entire property a party defendant.” In that case the final judgment may award the interest or leave it unaffected. This does not authorize a judgment cutting it off. The complaint does not allege that we are parties “having an interest.” Its only allegation is that we “ claim an interest.” Its prayer for judgment is not to ascertain and award the interest, but that we have no interest. This prayer implies an allegation that our claim is false. The allegation that our claim is a cloud is to the same effect—against the pleader. Section 1540 allows creditors having an interest to be made parties, but their interest must be set forth. Section 1541 regulates proceedings against unknown owners, but not mere claimants. None of these sections contemplate defendants who have no interest, but merely unjustly claim one.
    II. One who has no interest is neither a necessary nor a proper party in partition. Miller v. Wright, 107 N. Y. 194, p. 201.
    III. An action in partition is in equity. The complaint fails to show that defendants’ claim is one cognizable in equity. Therefore jurisdiction does not appear on the face of the complaint. Hosford v. Merwin, 5 Barb. 51.

      IV. The cause of action alleged against appellants is one to compel determination of a claim to real property and nothing else. The complaint states that these defendants “ claim ” some interest which is unknown, etc. It does not allege that they have an interest. The pleader does not intend to say that they have an interest. On the contrary, he expressly states that they have no right when he says it is a cloud, and also when he asks judgment that they be declared to have no right, for how can he ask that judgment if he alleges they have some interest. If he means that we have some interest, then he should say so, and ask that it be ascertained and recognized.
    V. An action for nartition cannot be made a substix tute for an action to compel determination of claim to real estate. Van Schuyler v. Mulford, 59 N. Y. 426. “ The general rule is that partition deals only with joint or common interests. All questions respecting the legal title of adverse claimants must be settled in an appropriate action.” Barrett, J., in Esterbrook v. Savage, 21 Hun, 145. In Barnard v. Onderdonk, 98 N. Y. page 164, the court say (at the foot of the page), “It may be that the defendant cannot be compelled to bring his claim of right under a mortgage into court for adjudication in a partition suit.” They say, “ this question we do not decide.” In Jordan v. Van Epps, 85 N. Y. 427, page 435, the court says, “ that the cases there cited sustain the general principle that a prior encumbrancer, or one who claims adversely, is not a proper party in a foreclosure suit, or in actions of a kindred character, involving a question of priority as to liens, or a claim to dower, adverse to the interest of the plaintiff.
    VI. As stating a cause of action to compel determination of claim to real property the complaint is fatally defective. It fails to allege the matters required by §§ 1638 and 1639 of the Code, to wit: (1) Plaintiff’s source of title. (2) Three years’ possession. (3) That defendants’ claim is of the character presented by § 1638. It alleges that one of the defendants claiming is an infant, and thus throws the case outside of 1638, which excludes infants.
    VII. As stating a cause of action to remove a cloud, the complaint is fatally defective. Hayward v. Buffalo, 14 N. Y. 534; Moores v. Townsend, 102 Ib. 387. It shows no facts showing a cloud. It shows no reason for the intervention of equity. The allegation that it is a cloud is a mere allegation of a conclusion of law. It goes without saying that a complaint to remove a cloud must show facts forcing the conclusion that there is a cloud.
    VIII. Causes of action are improperly joined as not affecting all defendants. The cause for partition does not affect us, for we have no interest to be partitioned or subject to partition. The cause to compel us to assert our claim for determination does not affect The Mayor, etc., for his claim is a different one from ours, and the converse is true.

      John Townshend, attorney and of counsel, for respondent, argued:—
    I. The demurrer admits the allegation of fact in the complaint. It therefore admits that the plaintiff is on the face of the complaint entitled to a partition or sale, and also that the demurrants claim some right or interest in said premises.
    II. The complaint in an action for partition is governed not only by the sections of the Code of Civil Procedure, § 481, requiring a statement of facts constituting a cause of action, and by § 484 prescribing what actions may be joined, but also by § 1542 requiring a description of the property, and the rights, shares and interests of all the parties, so far as same are known to plaintiff.
    III. The question of parties plaintiff and defendant in an action for partition is regulated by the Code of Civil Procedure. § 447. Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party defendant for the complete determination of the question involved, except as otherwise expressly prescribed. § 1539. Plaintiff may at his election make a person having a lien or interest which attaches to the entire property a defendant, in which case the court may award to such party his right or interest or reserve and leave same unaffected. Such a person not a party is not affected by the judgment. § 423. Notice may be given a defendant that no personal claim is made against.him.
    IV. The complaint complies with the requirements of sections 481 and 1542 by stating facts constituting the ground of action as against the tenants in common and by giving a description of the property and the rights and interests of the parties so far as known. The demurrer admits this. The complaint alleges, and the demurrer admits that the demurrants claim some interest in the premises, the nature of which is unknown to plaintiff. This claim of the demurrants is either adverse to the plaintiff or not adverse to the plaintiff. It is not alleged that the claim of these demurrants is adverse to plaintiff. Concede, therefore, that the interest of demurrants is not adverse to plaintiff, then the complaint states a cause of action against these demurrants; it states that these demur-rants claim an interest the nature of which is unknown’ that is, stating the interests of these demurrants “ so far as the same are known to plaintiff ” (§ 1542). This being so, the propriety of making these demur-rants parties is not to be determined upon demurrer, but upon the trial. Upon the trial the court will award to such party his right or interest or will reserve and leave same unaffected (§ 1539). The complaint, therefore, does state facts which shows a cause of action against these demurrants. It shows that these demurrants have, or claim, an interest necessary to a complete determination of the question involved. Had these demurrants not been made parties the court is imperatively commanded to order them brought in. Davis v. Mayor, 2 Duer, 663. (a) Where a complete determination of the controversy cannot be had without the presence of other parties the court must direct them to be brought in (§ 452). Or demur-rants might have applied to be made parties. (b) And where a person not a party to the action has an interest in the subject thereof, or in real property, the title to which may in any manner be affected by the judgment, and makes application to the court to be made a party, it must direct him to be brought in by a proper amendment (§ 452).
    V. If, on the other hand, the allegation in the complaint that these demurrants claim some right, title or interest, which is a cloud upon the title, is to be construed as an allegation that these demurrants have some claim to the premises in suit adverse to plaintiff, then these demurrants are necessary parties within the language of § 447, that any person may be made a defendant who has or claims an interest in the controversy adverse to plaintiff. But any way the demurrants are persons having a lien or interest which attaches to the premises. The demurrer admits this, and they are, therefore, proper parties within § 1539.
    VI. The demurrants are proper parties defendants, and as against such parties the complaint need not state facts constituting a cause of action. There has always been a distinction between necessary parties and proper parties. A necessary party is one whom the plaintiff must make a party, and without whom no complete determination of the question involved can be made (§ 447). A proper party is one whom the plaintiff may make a party at his option. As against a proper party the complaint has not necessarily to state facts constituting a cause of action; it is sufficient if the complaint alleges such party to have or claim an interest in the controversy adverse to the plaintiff. A common instance of this occurs in actions for foreclosure, wherein subsequent incumbrances are made' (proper) parties, with an allegation that they claim some interest subsequent to the mortgage. No facts are stated constituting a cause of action against such defendants; but no one ever dreamt of demurring, in such a case, because facts were not stated constituting a cause of action against such defendant ; they were properly made parties under § 447 because each “ has or claims an interest in the controversy adverse to the plaintiff.”
    VII. The complaint contains a statement that no personal claim is made on any of the defendants. If demurrants have no interest in the premises, then, as no personal claim is made against them, they have nothing to complain of and cannot be admitted to demur. But they cannot say they have no claim, because the demurrer admits they have. If demurrants have a claim then they can assert it. As appears by reviser’s note, the section 1543 was framed expressly to give an opportunity to a defendant to test the title of plaintiff or of any co-defendant in a suit for petition. Bliss’ Code, § 1543.
    VIII. The complaint contains one cause of action only—partition. Adding that some of the defendants —the demurrants—make some claim of lien upon the premises, does not constitute an additional cause of action. The statement that the claim is a cloud upon the title is a conclusion of law, not a statement of fact. Section 1539 authorizes the making parties of any person having a lien or interest which attaches to the entire property. Demurrants admit the allegation of the complaint that they claim a lien on the premises. Their claim must be either (1) rightful or (2) wrongful. Whether rightful or wrongful there can be no complete determination of the question involved until the rights of demurrants are disposed of. In either case it is within the language of section 447, which authorizes making defendant any person having or claiming an interest in the controversy adverse to plaintiff, or who is necessary to a complete determination of the question involved, except as otherwise prescribed. It is nowhere otherwise expressly prescribed. As the demurrants admit they claim a lien on the premises, they must be affected by a proceeding which may result in a judgment which will cut'off that claim. In Bogardus v. Parker, 7 How. 307, Mitchell, J., says : “ Plaintiff is entitled to a sale and to have the sale made free from all liens, so that the purchaser can obtain a perfect title to the property. If a sale is to be made it has been usual to make defendants all persons having any lien on the whole property or on any individed share.” And again (page 308): “ These inquiries are all incident to the one cause of action, the ownership of lands in common, and to the right to have that land sold free from incumbrances and to have the incumbrancers made parties to effect that purpose.”
   By the Court.—Ingraham, J.

The action is for a partition of real property. The complaint alleges that the property described is held in common by the plaintiff and the defendants, Townshend and Lock-woods, and that the • appellants claim some “ right, title or interest in said premises, the exact nature of which is unknown to plaintiff and which is a cloud upon the title to said premises.” Judgment is demanded for a sale of the property, and that the proceeds thereof be divided among the parties named as the owners thereof, and that it be adjudged that this defendant has not - a right, title or interest, claim or demand for, to or in or upon or against said premises or any part thereof, and that the defendants and all persons claiming under or through them be barred of all right, title and interest in said premises in possession, reversion, remainder or otherwise.

This defendant demurs on the grounds, first, that the complaint fails to state facts constituting a cause of action against this defendant, and, second, that causes of action have been improperly united. If the action be considered as an action of partition only, I do not think the complaint states a cause of action against the appellant. Actions of partition are regulated by the Code of Civil Procedure. Section 1532 to section 1595, inclusive; sections 1538 to 1540, inclusive, contain the provisions as to the proper parties to such an action. Section 1538 provides who must be made parties. The provisions of that section do not apply to this defendant. Section 1539 provides that plaintiff may at his election make a tenant in dower, or by curtesy, or for life, or for years, of the entire property, or a person having a lien or interest which attaches to the entire property, a defendant in the action. And section 1540 provides that a person having a lien on an undivided share or interest in the property may be made a defendant. It will be seen that no provision is made for making a person who merely claims an interest in the property a party. Before a person can be made a proper party to such an action, he must either have an estate in the premises or in some portion thereof, or he must have a lien or interest which attaches to the entire property, or to an undivided share or interest therein, and the share or interest of each defendant must appear from the complaint. Nor do I think that section 447 of the Code allows the plaintiff in an action of partition to make a person who claims adversely to the plaintiff’s title a party and compel him to litigate his interest in the property in such an action. That section provides that any person may be made a party defendant who has or claims an interest in the controversy adverse to the plaintiff:, or who is a necessary party defendant for the complete determination or settlement' of a question involved therein.

There is no controversy involved in this action in which a person who claims adversely to the title of the plaintiff: and his co-tenants in common has an interest. The action is not to determine the title to real property, or to ascertain who holds the legal title.

It is well-settled that an action for partition cannot be made a substitute for an action of ejectment or other action to establish the legal title of adverse claimants to real property (Van Schuyver v. Mulford, 59 N. Y. 430 ; Esterbrook v. Savage, 21 Hun, 151), and as no such issue can be tried in such an action there is no controversy therein in which a person who has a claim to the property adverse to the plaintiff’s title has an iiiterest.

The allegations of the complaint are not sufficient to maintain an action to declare the interest claimed by this defendant a cloud upon the title, or an action to compel the determination of a claim to real property, but if the allegation were sufficient it is clear that neither of these causes of action could be joined with a cause of action for a partition. I think, therefore, that the order and judgment appealed from should be reversed and the demurrer sustained.

Sedgwick, Ch. J., concurred.


author: Per Curiam. Ingraham, J. (Concurring).

text:
    BENJAMIN WEEKS, Appellant v. JAMES O’BRIEN, as Executor, etc., Respondent.

      Building contract—Architect's certificate, refusal of same—Breach of contract.

    This action was to recover the amount of the last payment upon a building contract, in which it was provided that this payment should be paid upon the architect’s certificate, which had been refused. It appeared that the cellar bottom had not been laid in accordance with the contract which required that it should be made water-tight. It had been laid, but about the time for the completion of the contract the water had come into the cellar and broken up the bottom, and it was in this state when the plaintiff left the work and the architect refused the certificate.

      Held, that a cel lar has an important relation to the building above it in respect to health, comfort, and the state of the building itself, and that the omission to comply with the contract in respect to its completion, etc., could not be called unintentional in the sense of those cases which have alio wetl the certificate to be dispensed with. The plaintiff failed to establish that the contract had been substantially performed and that the certificate had been unreasonably withheld and this failure called for the dismissal of the complaint.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided January 5, 1891.
    Appeal from a judgment entered upon an order dismissing the complaint at trial term.

      George W. McAdam, attorney, and Albert Mathews of counsel, for appellant.

      Edmund Huerstel, attorney, and Abram Kling of counsel, for respondent.
   Per Curiam.

The action was to recover the amount of the last payment upon a building contract provided to be paid upon the architect’s certificate. In the plaintiffs case it appeared that the contract had not been performed in several particulars. The most important of these was that the cellar bottom had not been laid in accordance with the contract which required that it should be made water-tight. Its situation was such that it was subject to the flowing of water. It had been once laid by a sub-contractor of the plaintiff, but about the time for the completion of the contract water had come in and broken up the bottom. It was in this state when the plaintiff left the work. The architect refused to give a certificate.

On the trial it was argued by the plaintiff that the architect’s refusal was unreasonable, as the work not done was a minor and comparatively unimportant part of the work done under the contract, and the contract had been substantially performed.

A cellar has an important relation to the building above it, in respect of health, comfort, and the state of the building itself. The omission to comply with the contract could not be called unintentional in the sense of those cases which have allowed the certificate to be dispensed with. Phillip v. Gallant, 62 N. Y. 256 ; Woodward v. Fuller, 80 Ib. 312. There was not an omission to notice it because the other details of the contract were numerous. Attention had been given to the cellar, and everything done or omitted had purpose and intention. The plaintiff failed to prove that the contract had been substantially performed, or that the certificate had been unreasonably withheld. This called for the dismissal of the complaint. The jury could not have used the testimony in a way that would have justified them in finding for the' plaintiff on these matters.

There was a second cause of action, and the counsel for appellant argues that it should have gone to the jury. There was no request that this should be presented to the jury, and the manner in which the action was treated led to the second cause of action not being noticed.

Judgment affirmed, with costs.

Ingraham, J. (Concurring).

By the contract sued on the certificate of the architect was a condition precedent to the right of the plaintiff to receive the payments to recover which this action is brought. The complaint does not allege that such a certificate was given, nor is it alleged that the architect unreasonably refused to give such a certificate.

It was conceded on the trial that no such certificate was given by the architect. The complaint was dismissed upon the express ground that it was not alleged either that the certificate was given or that the architect unreasonably refused to give the certificate. There was no application to amend the complaint.

The evidence of the plaintiff showed that the plaintiff had failed to complete his contract, and it was upon this ground that the architect refused to give the certificate.

The evidence did not justify a finding of the jury that the contract had been substantially complied with, or that the refusal of the architect to give a certificate was unreasonable. The only request for a certificate was the letter of September 8, 1882: to that the architect replied, stating the grounds of his refusal. They were that the contract was not completed and that sub-contractors had filed liens. These reasons fully justified the refusal and there was no evidence that the reasons given by the architect were not founded on fact. The evidence did show that the plaintiff had not completed his contract. That the cellar was not water-tight, and it would appear from the plan introduced in evidence that a foundation for the cellar floor of the thickness of two feet was required. This, plaintiff conceded, he had failed to furnish. It would thus appear that the plaintiff failed to either allege or prove the condition upon which his right to recover depended, viz.: that the certificate of the architect had been given or unreasonably refused.

The right to recover was not by the complaint based upon the fact that the defendant’s testatrix .had accepted the alternative provision of the contract and completed the work herself, but upon the right of the plaintiff to recover the amount due on the contract because of its substantial completion. The objection was taken that no such cause of action was alleged, and the court so held. If plaintiff had desired to present such a question an application should have been made to amend the complaint.

I agree, therefore, that the complaint was properly dismissed, and that the judgment should be affirmed, with costs.


author: Per Curiam. Freedman, J.

text:
    GEORGE H. MOORE, et al., Executors, etc., Respondents, v. THE NEW YORK ELEVATED RAILROAD COMPANY, et al., Appellants.

      Action to recover damages caused, by the construction and operation of the elevated railroad—Loss of rentals, etc.

    In a former action between same parties to recover damages to same property, between May, 1879 and May, 1883, it was adjudged that the damages sustained by plaintiff were at the rate of $300 per year. Counsel for defendants requested the court to rule and to charge the jury that this judgment was conclusive evidence as to the amount of damages sustained by plaintiff between 1879 and 1883.' The court refused so to rule and charge. Reid, that the judgment offered in evidence by the defendants did not adjudicate concerning anything in issue in this action.
    A witness was allowed to testify, against the objection of defendants, to the amount of depreciation in the rental value of plaintiff’s property, due to the elevated railroad. The grounds of defendants’ objection was that the witness was asked to give an opinion as to precisely what the jury was to decide. Reid, that although the witness dii'ectly spoke as to the amount of depreciation, the answer was not injurious to defendants, for at the same time he gave the value before and after the railroad was built, the difference being the amount of depreciation that he had previously testified to. The defendants asked that the complaint be dismissed on the ground that plaintiff was never in possession of the premises. Reid, this was not correct, because if plaintiff was not in occupation during the terms of leases given, they were in occupation between those terms.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided January 5, 1891.
    Appeal from judgment entered upon the verdict of a jury, and from an order- denying a motion of the defendants for a new trial, upon the judge’s minutes.

      Davies & Rapallo, attorneys, and Julien T. Davies and Brainard Tolles of counsel, for appellants, argued:—
    I. The learned trial judge erred in refusing to hold that the former judgment was conclusive evidence of the matters therein determined, including the amount of damages sustained between May 1, 1879, and May 1, 1883. A valid judgment upon a question directly involved in a suit is conclusive evidence as to that question in any other suit (although for a different cause of action) between the same parties. Bell v. Merrifield, 109 N. Y. 211; Gates v. Preston, 41 Ib. 113 ; Dunham v. Bower, 77 Ib. 76 ; Collins v. Bennett, 46 Ib. 490. It is true that the jury were not bound to find that the damages from 1883 to 1889 were at the same rate as during thé period from 1879 to 1883. But in view of the fact that the structure and operation of the railroad was substantially the same during both periods, the instruction requested would undoubtedly have had great weight with the jury, and defendants were substantially injured by its refusal.
    II. The learned trial judge erred in permitting the witness Martine to testify to the amount of depreciation in the rental value of plaintiffs’ property due to the elevated railroad. The question asked was objected to, on the ground that “ he is asked to give an opinion as to precisely what this jury was to decide.” The function of an expert in these cases is to state such general and special facts, as to values within the range of his experience, as may be necessary to enable the jury to determine the amount of damages caused by the elevated railroad. It is error to ask the expert for his opinion upon causes and effects. McGean v. Manhattan R. Co., 117 N. Y. 219 ; Avery v. N. Y. Central R. Co., 121 Ib. 31; Atkins v. Manhattan R. Co., 10 N. Y. Supp. 432; per Van Brunt, P. J.

      III. The learned trial judge erred in refusing to dismiss the complaint on the ground that plaintiff was never in possession. Actions of this character are substantially actions of trespass. Drucker v. Manhattan R. Co., 106 N. Y. 157, 162. Possession is necessary to sustain the action. Tobias v. Cohn, 36 N. Y. 363; Waterman on Trespass, §§ 948, 949. The possession of a tenant is not sufficient to sustain an action of trespass, even when his lease is taken after the trespass is begun. Avery v. N. Y. Central R. Co., 7 N. Y. Supp. 341. The evidence in this case clearly shows that the premises in question, during all the period for which damages were claimed, were in the possession of tenants.

      A. Edward Woodruff, attorney and of counsel, for respondents, argued:—
    I. By the decisions of this court as affirmed in the Court of Appeals it must be deemed to be settled that the elevated railroads are liable to those owning property abutting on the streets occupied by the railroads, for the losses suffered by them through the construction, maintenance and operation of the road, irrespective of the “ Dutch,” “ English ” or “ American” character of the street. Abendroth v. Manhattan Railway Co., 54 N. Y. Superior, 417. Aff’d Court of Appeals ; Seventh Ward Natl. Bank v. N. Y. Elevated, 53 Ib. 412; N. Y. Natl. Bank v. Metropolitan Elevated, 53 Ib. 511; Drucker v. Manhattan Railway Co., 51 Ib. 429; Ireland v. Metropolitan Elevated, 52 Ib. 450; Taylor v. Metropolitan Elevated, 50 Ib. 311; Glover v. Manhattan Railway Co., 51 Ib. 1; Carter v. N. Y. Elevated R. R., 14 State Rep. 860 ; Story v. N. Y. Elevated R. R. Co., 90 Ib. 122; Coggeswell v. N. Y. & N. H. R. R., 103 Ib. 10; Lahr v. Metropolitan Elevated R. R., 104 Ib. 268; Melrady v. Bushwick Railroad Co., 91 Ib. 148; White’s Bank of Buffalo v. Nichols, 64 Ib. 65.

      II. On the practically conceded facts, the only real question in the case was the amount of damages the plaintiff should receive, and as to that the verdict was not as favorable to the plaintiff as the facts would have justified. Wakeman v. W. & W. M’f’g Co., 101 N. Y. 105-109; Frances v. Schoellkopf, 53 Ib. 152; Jutter v. Hughes, 67 Ib. 267; Lahr v. Metropolitan Elevated, 104 Ib. 268. What a party receives or is paid for property is some evidence at least of its value. Muller v. Eno, 14 N. Y. 397; Bach v. Levy, 101 Ib. 11; Hoffman v. Conner, 76 Ib. 121; Leach v. Raritan Bay R’y Co., 27 Ib. 457; Gill v. McNamee, 42 Ib. 44 ; Pollen v. Gray, 31 Ib. 549. The yearly rental received for property is simply the price received for the use of the property for a year, and the same principle should apply in respect to there being a presumption that the rental obtained is the fair rental value of the property at the time as would arise in the case of sales. The law does not presume fraud or wrong-doing, but on the contrary, presumes good faith and fair dealing. The fact in evidence is, that after the construction and running of the elevated railroad, the plaintiff’s loss in rent received for her property was $1,000 per year. The cause shown to exist was the existence of the elevated railroad, and it is not unreasonable to find that the cause shown to exist was the cause of the loss. Such evidence as that introduced by the defendant as the present state of things, it is insisted, should have no effect, and it is not entitled to any consideration as affecting the claim in this suit, for the reason that assuming that the building next door did rent for more than the plaintiff’s the fact is entitled to no consideration in the absence of evidence showing the purpose for which the building is rented.
    III. The plaintiff is not called upon to prove her damages ' with mathematical precision. Drucker v. Manhattan Ry. Co., 51 N. Y. Superior, 429; Per curiam Opinion, affirmed in Court of Appeals, 106 N. Y. 147; Sutherland on Damages, 121; Taylor v. Metropolitan Railroad Co., 50 Super. 456; Matter Utica & C. R. R. Co., 56 Barb. 466; Baltimore & Potomac R. R. v. Fifth Baptist Church, 108 U. S. 317; Wakeman v. W. & W. Mfg. Co., 101 W. Y. 205-209. “Rents are graduated according to the value of the property and to an average of profits arrived at by very extended observation; and so accurate are the results of experience in this respect that rents are rendered nearly, if not quite, as certain as the market value of commodities at a particular time and place.” See also opinion of this court in St. John v. The Mayor, etc., of New York, 6 Duer, 315, where it is said in the opinion: “ The plaintiff showed the actual receipts of his hotel for a year or more previous to the obstruction complained of, the actual daily receipts during the continuance of the obstruction, and again the actual receipts for some months after the obstruction was removed. This furnished the means of computation and of satisfactorily ascertaining the diminution of receipts.” See also Frances v. Schoellkopf, 53 N. Y. 152; Jutt v. Hughes, 67 Ib. 267.
   Per Curiam.

The learned judge was right in holding that the judgment offered in evidence by the defendants did not adjudicate concerning anything in issue in the present action.

A witness, Martin, was allowed to testify to the amount of depreciation in the rental value of plaintiff's property due to the elevated railroad. This was objected to by defendants on the ground that the witness was asked to give an opinion as to what the jury was to decide. The counsel objecting avowed that he did not object to an opinion being given as to rental value before and after the elevated railroad was built in front of the premises Although the witness directly spoke as to the amount of depreciation, the answer was not injurious, for, at the same time, he gave the value before and after the railroad was built, the difference being the amount of depreciar tion he testified to.

The defendants asked that the complaint be dismissed on the ground that plaintiff was never in possession of the premises. This was not correct, because if not in occupation during the terms of leases given, they were in occupation between those terms. No questions as to damages were raised upon this basis.

It is not necessary to determine whether the recovery of interest was lawful. No exception that would raise such a question was taken.

Judgment and order affirmed, with costs.

Freedman, J.

I concur but wish to add that under the decision of Hamilton v. Manhattan Railway Co., 58 N. Y. Super. Gt. 17, the leases could make no difference on the question of liability.