text:
    City of Chicago, a Municipal Corporation, Plaintiff-Appellee, v. John A. Hutter, Jr., Clara N. Hutter, His Wife, and Marian Coy, Defendants-Appellants.
    Gen. No. 53,386.
    First District, First Division.
    May 19, 1969.
    Rehearing denied June 16, 1969.

      John A. Hutter, Jr., pro se, of Chicago, for appellants.
    Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and Howard C. Goldman, Assistant Corporation Counsel, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The City of Chicago brought suit in the Circuit Court of Cook County against the defendants to compel them to make certain improvements to a building owned by them so that the building would comply with certain provisions of the Municipal Code of Chicago. The case was heard by the trial court without a jury. After hearing testimony from both parties, the court ordered that the defendants vacate any two apartments on the fourth floor of their building which was found to violate sections 67-4 and 78-15.1 of the Municipal Code. The defendants appeal from the court’s order.

The building in question is located at 3526 and 3528 North Marshfield Avenue in Chicago. Originally, there were two two-story buildings on the site, one of which was of stone construction. A permit was issued in 1936 by the Building Department of the City allowing the defendants to construct and remodel the premises. Presently, a four-story multiple dwelling brick building with a basement occupies the site.

In its two-count complaint filed on December 15, 1967, the City alleged that various violations of the Municipal Code existed in the building. However, at the trial the sole issue considered by the court was whether there existed the requisite means of egress from each of the three apartments on the top (fourth) floor of the premises.

The City alleges that the defendants are in violation of section 78-15.1 of the Municipal Code which provides that “ [e]very family unit and rooming unit shall have safe, unobstructed means of egress leading to safe and open space at ground level.” The City further alleges that the defendants’ building violates section 67-4 of the Municipal Code, the applicable portion of which provides:

There shall be not less than two exits from every building, floor, space or room, except that one exit shall be permitted under the following conditions:
(e) In Multiple Dwellings, one exit door shall be permitted to a public corridor from a dwelling unit having not more than five habitable rooms and having an area not exceeding 1,000 square feet.

The City contends that the defendants are in violation of these two sections because the fourth floor apartments lack the required means of egress. Further, the other purported means of egress from the fourth floor apartments are neither safe nor unobstructed and do not lead to the ground level.

The defendants argue that they are not guilty of any violations of the Municipal Code. Alternatively, the defendants contend that their building was constructed under a permit issued in 1936 and conformed with all Code requirements at that time. The defendants question whether the public welfare demands retroactive application of the present Code in light of the fact that “the defendants would suffer unreasonable exactions as compared with the resulting public benefit if they are forced to vacate two of the penthouse units which are the most desirable and command the highest rent in the building.” Lastly, the defendants claim that “a property owner should be protected and the City should be estopped from ignoring the decisions, orders, and commitments made by its building department” in the past.

In order to determine the validity of defendants’ first claim, i. e., that they are not guilty of any Code violations, the record must be examined in some detail. The transcript of the trial reveals that each of the apartments on the first, se,cond and third floors has an entrance on a common or public corridor and that the corridor has a stairway at each end descending to the ground floor. Thus, as admitted by the City, the occupants of the apartments on the first three floors have two effective and acceptable means of egress.

The units above the three floors are described by the defendants as penthouse units and occupy part of the roof level. These units appear to us to comprise a fourth floor. Presently there are three units rented on this fourth floor and these three shall be denominated as the front, middle, and rear apartments.

Ingress and egress to the front apartment on the fourth floor is by means of a stairway leading from the third floor corridor to the fourth floor. The only other means of egress from the front apartment is through a breakthrough door to the middle apartment or by climbing a ladder to the roof.

Ingress and egress to the middle and rear apartments is by a stairway from the third floor corridor. There is a platform at the top of this stairway at the fourth floor level. Two doors open on to the platform, one door to the rear apartment and the other to the middle apartment. The only other means of egress from the rear apartment is a door in the bedroom leading to a balcony and then a climb on a ladder leading to the roof. The middle apartment has a window through which the occupant could reach the roof. There is also a breakthrough door between the middle and front apartment.

The trial judge found and recited in his order the following:

1. That the rear stairwell . . . between the 3rd and 4th floor is a common stairwell [for the rear and middle apartments] and not a private entrance to an apartment.
2. That the second means of egress at the subject premises on the 4th floor or penthouse apartments is dangerous and hazardous as it requires either for entry to another individual’s apartment and/or breaking of glass to open a door or window or the climbing and descending of a ladder or ladders.

The evidence establishes that at least two of the three apartments (the middle and rear apartments) have but one acceptable means of egress in violation of the Municipal Code of Chicago. We are not persuaded by defendants’ argument that occupants of the fourth floor apartment could exit onto the roof of the building, climb a ladder about ten feet to the roof of a contiguous building owned by the defendants, and make their way down the rear stairs of the second building to ground level. This means of egress could hardly be said to comply with the ordinances or qualify as a safe means of egress. For these reasons we are satisfied that the order of the court ruling that the fourth floor of the subject property must be converted into a single apartment with egress to the stairways both at the front and rear of the building is a proper one and is amply supported by the evidence.

In support of their second contention, that the present Code should not be applied retroactively to them, the defendants cite Kaukas v. City of Chicago, 27 Ill 2d 197, 188 NE2d 700, and City of Chicago v. Miller, 27 Ill2d 211, 188 NE2d 694. In Kaukas, the Illinois Supreme Court reversed the judgment of the Circuit Court which held invalid a section of the Municipal Code prohibiting the use of glass panel doors as a secondary means of exit. The Court stated that there are no hard and fast rules as to whether the burden upon property owners is so great compared to the public benefit that an ordinance must be held invalid. However, the Court felt that the public had a right to the safest method of protection from fire which can be found and a Municipality has the duty to provide such protection. “It is clear that a city may lawfully make building requirements applicable to buildings in existence at the time the ordinance was enacted, even though these buildings complied with the ordinance in effect at the time the new ordinance was enacted.” Kaukas v. City of Chicago, 27 Ill2d 197, 201, 188 NE2d 700, 702.

In City of Chicago v. Miller, 27 Ill2d 211, 214, 188 NE 2d 694, 696, the companion case to Kaukas, the Court stated that “[t]he mere fact that the building was originally constructed under the authority of a permit issued by the city in no way estops the city from bringing an action to compel compliance with the existing code.” There the defendants contended that after a lapse of more than sixty years since the original construction of the building the city should be estopped from complaining about building violations. We fail to see how these two cases help the defendants’ case and we hold that there are no special circumstances in the case at bar that would warrant the application of the doctrine of estoppel.

The public benefit resulting from the enforcement of the ordinance in the instant case clearly outweighs any detriment or loss of income suffered by the defendants. Protection from fires and the resulting casualties is the primary duty of the city. Thus, for the foregoing reasons, we are of the opinion that the Judgment Order of the Circuit Court should be affirmed.

Judgment affirmed.

ADESKO, P. J. and MURPHY, J., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE ADESKO

license: Public Domain

text:
    Edward O’Hare, Plaintiff-Appellee, v. Charles Moniak, Defendant-Appellant.
    Gen. No. 53,594.
    First District, First Division.
    May 19, 1969.
    Baker & McKenzie, of Chicago (Francis D. Morrissey and John T. Coleman, of counsel), for appellant.
    No brief for appellee.
   MR. PRESIDING JUSTICE ADESKO

delivered the opinion of the court.

This is an appeal by the defendant, Charles Moniak, from an order of the trial court which imposed upon the defendant the obligation of paying to the plaintiff, Edward O’Hare, attorney’s fees incurred in the unsuccessful prosecution of the plaintiff’s lawsuit. The plaintiff had sought recovery from the defendant for property damage purportedly caused by the penetration of tree roots from defendant’s tree into the adjacent land of the plaintiff. The plaintiff’s action was dismissed for failure to state a cause of action, but the court, on its own motion, entered an order taxing attorney’s fees against the defendant. The plaintiff-appellee has not filed a brief nor has he appeared in these proceedings in the Appellate Court.

Although the record reveals that the defendant did not expeditiously pursue its Motion to Dismiss, there is no indication of bad faith or vexatious tactics on the defendant’s behalf. The defendant contends that attorney’s fees are not allowable to the successful party in the absence of a statute or in the absence of some agreement or stipulation specifically authorizing the allowance thereof, and are never allowed to unsuccessful litigants. We agree. Such contention is well established in this State. Ritter v. Ritter, 381 Ill 549, 46 NE2d 41 (1943); McGookey v. Winter, 334 Ill App 307, 79 NE2d 306 (1948). It should be noted also that section 10 of the Costs Act, Ill Rev Stats 1967, c 33, § 10, does not authorize the assessment of attorney’s fees to either the successful or unsuccessful litigant. Bortree v. Macon, 121 Ill App 111 (1906).

The order entered against the defendant assessing attorney’s fees as costs was error, and is therefore reversed.

Judgment reversed.

MURPHY and BURMAN, JJ., concur.


author: MR. JUSTICE McCORMICK

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Bracey, Defendant-Appellant.
    Gen. No. 52,059.
    First District, Second Division.
    May 20, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (John J. Van Zeyl and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Haddad, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

The defendant was indicted for murder. He was tried by the court without a jury, found guilty and sentenced to 14 to 20 years in the penitentiary.

The facts are substantially as follows. On March 7, 1966, a group of boys (numbering from 4 to 11, depending on whose account is believed), aged 15 or 16 years, had gone to the apartment of Emmett Tate, at the invitation of his stepdaughter, Wanda Gray. Shortly after they arrived, at about 8:40 p. m., Emmett Tate came into the apartment and ordered the boys to leave, which they did. One of the group went back into the apartment to get a jacket he had left there, and when he came out to where the rest of the boys were congregated he told them Wanda’s stepfather was beating her; that they should go back and stop him. There is a dispute in the evidence as to whether at this point one of the group did or did not ask another for a gun. There is also a dispute as to which of the boys returned to the apartment, but it is not disputed that the defendant was one who did.

They told Tate to stop beating Wanda, and he told them to stay out of his family affairs. When he started backing down the hallway the boys began beating and fighting him, and when he turned to go down another hall, a shot was fired into his head, causing his death. The entire group, including Wanda Gray, then ran out and went to the home of one of them, after which they were picked up by the police while on the way to another boy’s home. The boy who had the gun in his possession was placed in the detective’s car, and the remainder of the group was placed in a squadrol.

There is some variance in the testimony as to the details of the killing. Wanda Gray testified for the State that she was 15 years old; that when the boys returned to the apartment James Bracey, defendant, was at the head of the group and that it was he who took out the gun and shot her stepfather. She stated that Bracey took her along when he left the apartment. She had first told the police that Bernard Sutton had fired the gun, but explained that version by saying that when she was in the squadrol with the defendant and the others, the defendant had told her that if the police asked who did the shooting she should say it was Sutton because he was younger and would not get as much time as the defendant. She had also previously told the police that she was unconscious at the time of the shooting; at the trial she stated that the truth was she was on the floor when the boys returned to the apartment; that she then got up and the fight developed; that she was standing right behind the entire pack during the fight; that there were four boys in the apartment at that time and she could see all of them clearly; that Sutton was not one of the four; and that she saw Bracey shoot her stepfather. The witness further testified that James Amos was not present at the time of the killing and that Sutton was not present at the Bracey home afterwards when some of the group went there. She explained her original story about her unconsciousness at the time of the shooting incident by saying that Bracey had asked them all not to say he did it, and since she did not want to lie about it at first she just said she was unconscious; that she changed her story because she did not have enough injuries to substantiate the claim that she was unconscious.

Bernard Sutton testified that he and George Coles had first gone to the Tate apartment about 6:00 p. m., had stayed for about 15 minutes, then left, and that he returned about 8:00 p. m., at which time he saw James Bracey, George Coles, Robert Lindsey, Herman Cunningham and Dennis Malone, “and a few more” boys. When Tate came in and told them to leave, they all went out, but Coles and Bracey went back to get a coat which had been left in the apartment. Bracey came back out and told Coles to give him the gun; the others tried to dissuade Coles, but he gave the gun to Bracey who ran back into the apartment. All the other boys went back in with the exception of Sutton and Lindsey, who stood outside looking into the apartment, watching the boys beating Emmett Tate. Sutton testified that he saw Bracey with the gun, then heard a shot; that he did not actually see Bracey fire the gun, but that later, when they were in the hallway at 4500 South State Street, Bracey told Sutton he had shot Tate in the leg. Sutton stated that Bracey wiped the fingerprints off the gun and gave it to Dennis Malone, who had it in his possession when the police stopped them.

Bernard Sutton further testified that although he was not sure, he thought that James Amos was not in the apartment at the time of the shooting. At one point Sutton contradicted himself by saying that after Bracey returned to the apartment the second time, a couple seconds afterward “Dennis Malone, Herman Cunningham, and Donnie Puckett, and me and Robert Lindsey was on the gallery, standing in front of the door.” He stated that he saw Wanda get up from the floor and that she was in the hallway at the time of the beating and the shooting. At the police station Sutton had said that Frank Tate, the son of Emmett Tate, had “touched” Sutton, thereby indicating that he was the person who had shot the father.

Robert Lindsey testified that he heard someone say “give me the gun” before he went into the apartment, but he did not know who had said it. He stated that he and Sutton were on the gallery at the time of the shooting. The gallery is outside the building, separated from the hallway by a door, and from the gallery one can apparently see into the apartment. Lindsey said he saw three or four boys fighting with Tate; that he did not see a gun, but that he heard a shot.

A police officer testified that when he apprehended Malone on the northwest corner of 51st Street and Prairie Avenue, five others were present: Wanda Gray, George Coles, James Bracey, Herbert Cunningham, and Donnie Puckett, all of whom were placed in the squadrol. The officer said it was customary practice for one of the officers to ride in the back with the prisoners, but that he did not know whether an officer rode with them in this instance. It was during this time, according to the testimony of Wanda Gray, that the defendant told her to tell the police it was Sutton who had done the killing.

James Amos, a cousin of the defendant, testified that eleven people were present in the apartment when Tate came home and told them to leave. He stated that George Coles had left his coat in the apartment and had come back saying that Wanda’s father was “stomping” her; that eight of the group (not four, as testified to by the State’s witnesses), including Sutton, went back into the apartment. After a short period of fighting with Tate, someone yelled “Let’s get out of here,” and everyone started running out except Amos, who had almost tripped over Wanda who was lying on the floor. Amos stated that he looked back and saw Sutton holding his stomach as if he were going to throw up; “Then I looked to see if he had a gun. So when Jean [Wanda] started to hollering, I turned around again, because I thought her old man came out from the back. And then I seen — I heard the shot fired. Was nobody standing there but me — ”

Edward Malone (brother of Dennis) also testified that Amos wf ^ present; that it was Sutton who had left his coat in the apartment, and who informed the group that Tate was beating Wanda. Malone further testified that Sutton went back into the apartment with the rest of them and that Wanda was on the floor and did not get up. Malone said “. . . we was on our way out the door, and I heard a shot. I saw Bernard with the gun.” According to Malone’s testimony, Wanda was outside the apartment at the time the shot was fired, and the defendant was not in the apartment.

Frank Tate, son of the deceased, who had purportedly pointed out Sutton as the killer of his father, testified that on the date in question he was 11 years old; that when his father was whipping his sister, “a boy came in and had a gun and ran to the back, and a whole bunch of more boys, and then I got up and ran out to call the police.” Frank said he thought the person with the gun was Sutton. He further testified that on the day in question both Sutton and the defendant were wearing long dark coats, and that the defendant was in the apartment when Frank left to call the police. He had not looked out on the gallery to see if anyone was there.

James Bracey, defendant, testified on his own behalf that on March 7, 1966, he was with Coles and Sutton in a restaurant when Coles called Wanda Gray and asked if they could “have a little get-together. So she replied yes, and she said, ‘You can come up my house about 8:00 o’clock or 8:30. My mother is gone to school and my father is in Michigan City.’ So we said okay.” The defendant stated that he later went to the Tate apartment by himself and when he arrived he found the following boys there: Bernard Sutton, George Coles, Dennis Malone, Edward Malone, James Amos, Donnie Puckett, Larry Swatsy, Calvin (Bernard Sutton’s cousin), Herman Cunningham, “a boy named Snake and another boy,” Wanda Gray, and her little brother. The witness testified that a short time later Wanda’s stepfather, Emmett Tate, came in and ordered them all out of the apartment. They left, but someone who had gone back for his coat returned and said Tate was beating Wanda and they should go in and stop him. According to the defendant’s testimony, ten or twelve boys then went back into the apartment and began fighting with Tate. The defendant admitted hitting Tate, and said that when someone yelled that the police were coming, they all ran to the door. He said he was letting people out of the door when he heard a shot; that he looked around and saw Bernard Sutton standing by the bathroom door with the gun in his hand; that he saw Bernard fire the gun; that Wanda was lying on the floor throughout this episode, and that he had never told her he had shot her stepfather. He further denied having had any other conversation with her in the squadrol, and said he did not tell her he was going to accuse Sutton of the shooting because he was 15 years old. According to the defendant’s version, Amos was present in the apartment at the time of the shooting.

Mrs. Bertha Tate testified that it was not possible for a person standing at the apartment door to see anyone standing in or near the bathroom door, which contradicted defendant’s testimony that he saw Sutton standing at the bathroom door while defendant was at the apartment door.

After the defense rested the trial court made the following comment:

All right. I have a reasonable doubt as to whether or not this defendant fired the fatal shot. However, I have no reasonable doubt, backed by his own words and the testimony of his witnesses, Edward Malone and Frank Tate, that there was a man, the deceased in this case, who was in his own home, who ordered them to leave, they did leave, and he began to chastise his own daughter. According to the defendant, someone said, “He’s beating her. Let’s stop it.” He said, “Okay.” And then he, after having been told by that man to leave his home, re-entered the home in a concert of action with several others. The record is quite confusing as to who was there, but I know from the evidence the defendant was there, acting in an unlawful manner. So whether he fired the shot or Sutton fired the shot is immaterial. The act of one was the act of all. By his testimony, he struck the man in his own home. There is a finding of guilty of murder in manner and form as charged in the indictment.

Before entering the judgment the court noted:

This is just the type of situation the law contemplates when they say that the act of one is the act of all.

The defendant urges that he cannot be held accountable for the murder. Section 5-1, chapter 38, of Ill Rev Stats 1967, provides:

A person is responsible for conduct which is an element of an offense if the conduct is either that of the person himself, or that of another and he is legally accountable for such conduct as provided in Section 5-2, or both.

Section 5-2 provides:

A person is legally accountable for the conduct of another when: (c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.

It has been held that where parties engage in a common venture to beat another person who is killed as a result of the beating, any one of the participants may be held guilty even though he did not take part in the killing and did not assent to any arrangement which had death as its object. Brennan v. The People, 15 Ill 511, 516.

In People v. Rudecki, 309 Ill 125, 140 NE 832, it was held that if there is a common design to do an unlawful act, whatever occurs in the furtherance of the common design is the act of all, and the court said at page 129: “A shot fired by one member of the mob was a shot fired by all of them, and all of them must answer for the result.”

In People v. Richardson, 32 Ill2d 472, at 476, 207 NE2d 478 the court said:

“It is the defendant’s primary contention that the evidence failed to show a common design or purpose to commit a felonious act and that he should not, therefore, be held accountable for the actions of other members of the group. We have held, however, that proof of a common purpose need not be supported by words of agreement but can be drawn from the circumstances surrounding the commisson of an act by a group. (See People v. Rybka, 16 Ill2d 394; People v. Clark, 30 Ill2d 67.) Furthermore, the fact that the criminal acts were not committed pursuant to a preconceived plan is not a defense if the evidence indicates involvement on the part of the accused in the spontaneous acts of the group.”

In People v. Rybka, 16 Ill2d 394, 158 NE2d 17, a high school student (Palmer) died after being struck on the head with a hammer by Joseph Schwartz. Ronald Rybka was present in the group when the crime was committed, but there was no evidence that he or any of the others struck at Palmer or threatened him in any way. The court said at page 405:

“One may aid and abet without actively participating in the overt act. (People v. Marx, 291 Ill 40; People v. Taylor, 319 Ill 174; People v. Brendeland, 10 Ill2d 469.) Evidence that a defendant voluntarily attached himself to a group bent on illegal acts with knowledge of its design supports an inference that he shared the common purpose and will sustain his conviction as a principal for a crime committed by another in furtherance of the venture. People v. Tarver, 381 Ill 411; People v. Rudecki, 390 Ill 125.”

Also see People v. Raybourn, 72 Ill App2d 379, 219 NE2d 711.

In the case before us the group of boys went into the apartment with the avowed purpose of stopping Tate’s chastisement of his daughter in his own home. There was testimony that one of the group had a gun, which fact was known to all of the boys. Someone asked for and obtained possession of the gun; one witness said it was the defendant. Soon after they had gone back into the apartment the group attacked Tate and he was subsequently shot by one of them. Under the decisions, the fact that the defendant associated himself with the group (which he knew was armed with a deadly weapon) is sufficient to tie the defendant in as a principal in the murder. He admits that he went into the apartment with the others after they had been informed that Tate was beating his stepdaughter. He also admits that he struck the deceased.

The judgment of the Circuit Court is affirmed.

Affirmed.

LYONS, P. J. and BURKE, J., concur.


author: MR. JUSTICE BURKE

text:
    People of the State of Illinois, Appellee, v. Larry Sirinsky, Appellant.
    Gen. No. 52,583.
    First District, Second Division.
    May 20, 1969.
    Rehearing denied June 20, 1969.

      Harvey B. Bass, of Chicago, for appellant.
    No briefs filed for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Defendant was found guilty at a bench trial of the operation of a motor vehicle on a public street while under the influence of intoxicating beverage. He received a fine of $100 and was assessed costs in the amount of $5. His contention on this appeal is that the complaint under which he was found guilty was defective in that it was brought in the name of the City of Evanston for a violation of the Illinois Uniform Act to Regulate Traffic (UART). He maintains that he was not sufficiently informed of the charges he was to face and that the defect in the caption of the complaint resulted in confusion as to the type of defense he should raise, inasmuch as a finding of guilty under the UART would have to be beyond a reasonable doubt, whereas a finding of guilty under the city’s ordinance covering the subject could have been by a preponderance of the evidence.

The traffic citation, which stood as the complaint against defendant at trial, was issued to him by a City of Evanston police officer for the traffic violation which occurred in that city. Although the citation form bore an open square whereby the “People , of the State of Illinois” could have been designated as the plaintiff, the officer checked the square next to “City of -, a Municipal Corporation,” and wrote in the word “Evans-ton” as the plaintiff. Thus, when read in its pertinent portions consecutively, the complaint reads, “City of Evanston, a Municipal Corporation, Plaintiff, vs. Sirinsky, Larry A., Defendant, . . . did then drive and operate a certain motor vehicle upon a public highway of this State, Howard Street, situated within the Village or Town or City, County and State aforesaid, and did then and there unlawfully violate section 47 UART, State of Illinois, by (describe) Driving under influence of intoxicating beverage.” The citation form also contained an open square whereby the violation of a “Local Ordinance” could have been designated instead of the State statute.

Except for the appearance of counsel filed on behalf of the defendant, which left blank the space where the name of plaintiff in the action is normally inserted, all matters in the record of this case are entitled “The People of the State of Illinois” as the plaintiff. These include the placita, three continuance orders granted at the instance of the defendant, a jury waiver filed by the defendant, motions for a new trial and in arrest of judgment (wherein defendant states, inter alia, that he was not found guilty beyond a reasonable doubt), and a report of proceedings prepared and presented to the trial judge by the defendant, inasmuch as the trial evidence was not recorded by a reporter or voice recorder. All references in the common-law record to the prosecuting attorney are to the State’s Attorney of Cook County and the case was actually tried by an assistant state’s attorney. Furthermore, it is clear that the complaint sufficiently informs defendant of the charge he was to face. It is apparent that defendant was aware that he was to be tried in a complaint prosecuted by the People of the State of Illinois and that the trial proceeded accordingly.

Defendant states that he raised the defect in the caption here complained of at the trial level, but the record does not substantiate this claim. No court reporter was present during the trial of this cause, and it was necessary for the defendant to compile his own report of proceedings. Defendant’s report of proceedings, together with the trial judge’s own memorandum of the proceedings, were approved by the trial judge and were made part of the record on appeal. Both the memorandum and the report of proceedings relate solely to the evidence presented at the trial, and neither contains any reference to an objection by defendant as to the defect here complained of. Furthermore, defendant’s motion for a new trial and his motion in arrest of judgment do not specifically refer to the defect in the caption of the complaint. The matter has been waived. Ill Rev Stats 1967, c 38, par 114-1 (b).

Defendant cites the cases of People v. Stringfield, 37 Ill App2d 344, 185 NE2d 381, and City of Chicago v. Berg, 48 Ill App2d 251, 199 NE2d 49, as standing for the proposition that a complaint is void if it is brought in the name of a municipality for the violation of a State statute. However, neither Berg nor Stringfield is applicable here inasmuch as both were decided prior to the effective date of the Judicial Article of 1964 which repealed the requirement that all process run and all prosecutions be carried on in the name of the People of the State of Illinois. See Ill Const of 1870, art 6, § 33.) City of Evanston v. Jaman, 88 Ill App2d 441, 232 NE2d 28; People v. Petruso, 35 Ill2d 578, 221 NE2d 276. See also People v. Tammen, 40 Ill2d 76, 237 NE2d 517.

During the oral argument of this case the Assistant State’s Attorney made an oral motion that this Court allow an amendment to the complaint, by changing the name of the plaintiff in the caption thereof to “The People of the State of Hlinois.” Under section 7 of the Judicial Article, the Appellate Court may exercise such original jurisdiction as may be necessary to a complete determination of a case on review. Ill Const, art 6, § 7; see also People v. Abney, 90 Ill App2d 235, 242-243, 232 NE2d 785. Supreme Court Rule 362 requires that any party desirous of amending his pleadings in the record on appeal must file a written application therefor, as well as comply with other requirements set out in the Rule. Supreme Court Rule 362 (a)-(e). However, subsection (f) of the Rule provides that the reviewing court, upon its own motion, before or after submission of the case for decision, may order an amendment to be made. (Supreme Court Rule 362(f); Ill Rev Stats 1967, c 110A, Par 362.) The amendment suggested by the People will correct the record and, under the view we take of this case, will work no prejudice to the defendant. See Admiral Oasis Hotel Corp. v. Home Gas Industries, 68 Ill App2d 297, 303-304, 216 NE2d 282. See also Rank v. Rank, 107 Ill App 2d 339, 246 NE2d 12, 14. It will further obviate defendant’s concern that under the present state of the record he could be tried again by the People for the same offense.

The amendment of the complaint will show the People of the State of Hlinois as plaintiff. The judgment is affirmed.

Complaint amended and judgment affirmed.

LYONS, P. J. and McCORMICK, J., concur.


author: MR. PRESIDING JUSTICE LYONS.

text:
    Victor Manufacturing and Gasket Co., a Corporation, Plaintiff-Appellee, v. City of Chicago, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 53,144. (Abstract of Decision.)
    First District, Second Division.
    May 20, 1969.
    Raymond P. Simon, Corporation Counsel of the City of Chicago (Marvin E. Aspen and RocLyne E. LaPorte, Assistant Corporation Counsels, of counsel), for appellant;
    no brief filed for appellee.
   Opinion by

MR. PRESIDING JUSTICE LYONS.

Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Andrew Watson, Defendant-Appellant.
    Gen. No. 52,725. (Abstract of Opinion.)
    First District, Second Division.
    May 20, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, of counsel), for appellant;
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Haddad, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

MR. PRESIDING JUSTICE LYONS.

Not to be published in full.


author: MR. JUSTICE BURKE.

text:
    People of State of Illinois, Plaintiff-Appellee, v. Willie Wilson, Defendant-Appellant.
    Gen. No. 53,225. (Abstract of Decision.)
    First District, Second Division.
    May 20, 1969.
    No briefs filed for this opinion.
   Opinion by

MR. JUSTICE BURKE.

Not to be published in full.


author: MR. PRESIDING JUSTICE DRUCKER

text:
    Flight Kitchen, Inc., an Illinois Corporation, and Flight Kitchen, Inc., a Michigan Corporation, Plaintiffs-Appellees, v. Joseph I. Woods, Sheriff of Cook County, and Chicago Seven Up Bottling Co., Inc., Defendants, Chicago Seven Up Bottling Co., Inc., a Corporation, Defendant-Appellant.
    Gen. No. 52,793.
    First District, Fourth Division.
    May 21, 1969.

      O’Keefe, O’Brien, Hanson & Ashenden, and Richard G. Finn, of Chicago, for appellant.
    Irving Goodman and Smietanka & Garrigan, of Chicago, for appellees.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Plaintiffs brought a trial of right of property action to recover certain property levied upon by the Sheriff of Cook County by virtue of an execution issued on a judgment entered in favor of Seven Up Bottling Co. and against Plan For Hospital Foods, Inc., in the sum of $1499.60. The court directed a verdict finding that the right of property was in the plaintiffs. Defendant Chicago Seven Up Bottling Co., Inc., appeals from the judgment on the directed verdict.

On appeal defendant contends that the court erred in directing a verdict.

Adam Senese testified that he was president of three corporations: Flight Kitchen, Inc., an Illinois corporation, Flight Kitchen, Inc., a Michigan corporation, and Plan For Hospital Foods, Inc., an Illinois corporation; that all three corporations kept separate books; that all the seized property was located at 9561 Franklin which is leased by Flight Kitchen, Inc.; that the building had a sign reading “Flight Kit . . that none of the property belonged to Plan For Hospital Foods; that equipment worth $10,000 belonging to Hospital Foods was located at 3149 Lincoln Avenue but he never told this to sheriffs; that the seized property was not owned jointly by the plaintiffs.

When Senese was asked which property belonged to Flight Kitchen of Illinois and which to Flight Kitchen of Michigan, plaintiffs’ attorney stated to the court:

Mr. Smietanka [plaintiffs’ attorney]: I am not going to object to the question, but I think the witness should have, in view of the great number of items that have been levied upon and seized — I think he is entitled to examine the documents to establish the ownership. He wants the particular ownership. I think he is entitled to examine the exhibits.

(We shall discuss the exhibits and Senese’s testimony regarding them later.) Senese also testified that mail for Hospital Foods was delivered at Franklin Avenue, that delivery tickets were addressed to that location and that employees of defendant had conferred with him at that address.

Opinion

Defendant contends that the trial court erred in directing the jury to find that the right of property was in the plaintiffs. Defendant argues that the burden is on plaintiffs to prove that the property is theirs; and that in the instant case the plaintiffs’ proof is not such that “when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 510, 229 NE2d 504.

In a trial of right of property the burden is on the plaintiff to prove his ownership of each and every article of property claimed. Marshall v. Cunningham, 13 Ill 20. It is admitted by defendants that the 1967 CMC Van (as shown by Plaintiffs’ Exhibit 1) belongs to Flight Kitchen, Inc., a Michigan corporation.

Plaintiffs attempted to prove their ownership to all the other property by showing that Hospital Foods kept no equipment at and did no business from the Franklin Avenue address, and by the introduction of exhibits which they claimed established ownership. Plaintiffs’ Exhibit 2 is a paid bill for a 1965 Pontiac. Senese testified that the car is the property of Flight Kitchen of Illinois but the exhibit shows “Flight Kitchen, Inc. — Adam Senese — 9561 Franklin Avenue” as the person to whom the invoice was rendered.

He identified Exhibit 3 as a retail installment contract covering a 1960 Ford automobile (a cab type truck) and stated that the truck is the property of Flight Kitchen, Inc., but the exhibit shows that the buyer was Chef’s Delight Catering. The memorandum of insurance attached thereto shows Adam Senese d/b/a Chef’s Delight as the insured. Plaintiffs’ Exhibit No. 4 is a schedule of equipment (machines and equipment) with a certificate attached to it dated June 20, 1966, from the R. A. Will Company. This is an appraisal of all the equipment that was on the premises of Flight Kitchen, Inc. of Illinois when the appraisal was made on about June 20, 1966. Mr. Senese testified that all this equipment was seized by defendant on August 28, 1967, but there was no proof of ownership.

Plaintiffs’ Exhibit No. 5 is a check for $1,000 signed “Flight Kitchen, Inc.” payable to E. F. Wilkinson, treasurer of Rock Island. Senese testified that this was in payment of some equipment (pots and pans) and a few large pieces of equipment that were sold to him by the Rock Island Railroad and that these items are included in the schedule marked Plaintiffs’ Exhibit No. 4. Senese testified that Plaintiffs’ Group Exhibit No. 6 refers to tables that were on the premises of Flight Kitchen, Inc. of Illinois; the payment was made by him and the property belonged to him.

Plaintiffs’ Exhibit No. 7 is a bill of sale referring to a kettle stand. Senese testified that it was purchased by him for Flight Kitchen, Inc. of Illinois from TWA and paid for by him.

Plaintiffs’ Group Exhibit No. 8 is a series of invoices dated August and September of 1962. They refer to about three-fourths of the equipment on the schedule. It was purchased and paid for by Adam Senese for Flight Kitchen, Inc. of Illinois. The invoices are addressed to “Flight Kitchens, Inc.” — whether Illinois or Michigan is unspecified.

In view of the imprecision of the proof of ownership of the various items seized, we hold that the evidence does not sufficiently favor the plaintiff to satisfy the Pedrick, supra, criteria for a direction of verdict. Many of the items in dispute are claimed to belong to “Flight Kitchen,” but the proof does not indicate which Flight Kitchen, whether the Michigan corporation or the Illinois corporation. Since Senese, the president of both claimants, testified that there was no joint ownership of property, the proof must show which claimant owns a particular item. The judgment, however, found the right of property to be in plaintiffs jointly, and this is completely inconsistent with the evidence.

Further there were items seized that belong to Senese personally and other items which belong to various airlines. Since it is admitted that there is property that does not belong to plaintiffs and since the findings were not specific as to which property was owned by which plaintiff, it was clearly improper to declare, as the trial court did in directing a verdict, that the right to all the property seized at the Franklin Avenue address was in plaintiffs.

The judgment is reversed and the cause remanded with directions to enter a judgment that the right to a 1967 GMC Van EM 5670V is in the Flight Kitchen, Inc., a Michigan corporation, and to proceed with a new trial as to all the other property.

Reversed and remanded with directions.

ENGLISH and STAMOS, JJ., concur.


text:
    Katharina Rosmanitz, Plaintiff-Appellee, v. Jakob Rosmanitz and Guaranty Bank & Trust Company, as Trustee Under a Trust Agreement Dated August 4, 1961, Known as Trust No. 10350, Defendants-Appellees, and Karel L. Kohler-Rausch and Morris A. Gzesh, Third-Party Respondents-Appellants.
    Gen. No. 52,833.
    First District, Fourth Division.
    May 21, 1969.

      Karel L. Kohler-Rausch, of Berwyn, and Morris A. Gzesh, of Chicago, for appellants.
    Robert L. Phee, of Chicago, for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Third-party respondents appeal from orders denying their motions to vacate certain orders entered on June 13 and July 7, 1966, and from a denial of their petition to intervene which sought an adjudication of their attorneys’ lien.

The facts are not disputed. In September 1961, Karel L. Kohler-Rausch and Morris A. Gzesh were retained by plaintiff as her attorneys. A separate maintenance action was filed in her behalf against defendant. In November 1961, an amendment to the complaint was filed adding Count II in which plaintiff alleged a beneficial interest in certain real estate. On December 4, 1962, defendant filed a counterclaim for divorce. An amended Count II was filed by plaintiff on January 23, 1964. Kohler-Rausch and Gzesh obtained leave to withdraw as plaintiff’s attorneys on November 23, 1965, and a judgment at law was entered against defendant in the sum of $800, which represented the balance due the attorneys by virtue of a prior order that defendant pay plaintiff’s attorneys’ fees.

On December 18, 1965, defendant was served with notice of an attorneys’ lien by Kohler-Rausch and Gzesh for services rendered under Count II of the complaint.

On June 13, 1966 (apparently without notice) an order was entered setting a hearing on the attorneys’ lien for July 6 and ordering service of a copy of the order on the attorneys. Gzesh was served on behalf of both attorneys. On July 7 an ex parte order was entered (dated July 6) finding the attorneys’ lien to be of no force or effect.

A decree of divorce was granted the defendant on March 23, 1967, providing for the payment by defendant of $150 per month for child support and lump sum alimony in the amount of $15,000. The court found that certain real estate was acquired during the marriage by the joint efforts of the parties and ordered the wife to release her interest therein. Plaintiff’s complaint for separate maintenance and other relief was dismissed with prejudice.

On September 14, 1967, defendant was given leave to name Kohler-Rausch and Gzesh as third party respondents and they were served with summons. They filed a motion to vacate the orders of June 13 and July 7, 1966, and requested leave to file an intervening petition; on motion of plaintiff to strike and dismiss, the motion to vacate was denied and leave to file the intervening petition was denied on the ground that the court did not have jurisdiction by virtue of the prior orders. Third party respondents appeal from these rulings.

Opinion

Third party respondents first contend that the orders of June 13 and July 7 were void. They claim that no petition had been filed as provided by Ill Rev Stats (1965) c 13, § 14, and that since they were not parties to the litigation at that time the court did not have jurisdiction to enter any order regarding their lien. They point out that subsequent to the entry of these orders these respondents were made parties to the action but were denied leave to intervene on the ground that their lien had been adjudicated by these void orders. In this court neither appellee has answered these points and we therefore find that the orders of June 13 and July 7 (dated July 6), 1966, were void.

Respondents urge that they should be allowed to file their intervening petition to enforce their attorneys’ lien for services rendered by them to their former client, the plaintiff, under Count II of the amended complaint. This procedure has been sanctioned in Midcity Trust & Savings Bank, Appellees v. City of Chicago, Defendants, Appeal of George C. McCarthy, Appellant, 292 Ill App 471, 11 NE2d 617. The intervening petition requested enforcement of the attorneys’ lien alleging that during the pendency of a separate maintenance suit respondents had been retained by plaintiff to obtain an adjudication of or settlement of property rights as between herself and defendant; that they had performed services — the details of which are then stated — and that the services were reasonably worth $3,085.83; that because of plaintiff’s conduct respondents were allowed to withdraw as her attorneys; that defendant had been served with a notice of attorneys’ lien for services rendered in connection with her property rights; that plaintiff’s property rights were adjudicated in the divorce decree and that therefore the attorneys’ lien should be enforced. Respondents argue that Count II sought recovery for plaintiff of property rights and that as a result thereof, the divorce decree adjudicated that plaintiff did have rights in two parcels of real estate and that plaintiff received a settlement in the form of lump sum alimony based on that claim.

Plaintiff-appellee’s only contention in this court is that the Attorney’s Lien Act has no application to divorce suits, citing Pressney v. Pressney, 339 Ill App 371, 90 NE 2d 119. We agree with this principle, but in the instant case the notice of lien was not filed in the divorce action but under plaintiff’s Count II which requested an adjudication of plaintiff’s property rights. Although Count I was for separate maintenance in which property rights are not to be adjudicated (Petta v. Petta, 321 Ill App 512, 53 NE2d 324) this is not relevant since a complaint may state in different counts separate causes of action (Ill Rev Stats, c 110, § 33 (2)) and any causes of action may be joined (Ill Rev Stats, c 110, §44). See Olmsted v. Olmsted, 332 Ill App 454, 75 NE2d 774, and Boker v. Boker, 17 Ill App2d 260, 149 NE2d 774.

Respondents claim that the lien attached to the real estate which was the subject matter of Count II, that the lump sum alimony in the decree was in lieu of plaintiff’s interest in the real estate and that the lien is therefore enforcible. Midcity Trust, supra. The fact that plaintiff’s rights in the real estate were finally adjudicated in the divorce action should not deprive the attorneys of their right to ask for an enforcement of the lien. The test is whether the attorneys’ client recovered any money or property by reason of their efforts.

Section 14 of chapter 13 of the Ill Rev Stats provides that the attorney’s lien attaches to “any money or property which may be recovered, on account of such suits, claims, demands or causes of action . . . .” Respondents seek to show that the moneys recovered by plaintiff were “on account” of their endeavors. They are entitled to an opportunity to present their claim and submit their evidence. We therefore reverse the orders of June 13, 1966, and July 7, 1966 (dated July 6, 1966). The order of October 25, 1967, is reversed and the cause remanded with directions to grant leave to third-party respondents to file their intervening petition.

Reversed in part, reversed and remanded in part with directions.

ENGLISH and STAMOS, JJ., concur.

       ... To enforce such lien, such attorneys shall serve notice in writing, which service may be made by registered or certified mail, upon the party against whom their clients may have such suits, claims or causes of action, claiming such lien and stating therein the interest they have in such suits, claims, demands or causes of action, and such lien shall attach to any verdict, judgment or decree entered and to any money or property which may be recovered, on account of such suits, claims, demands or causes of action, from and after the time of service of the notice. On petition filed by such attorneys or their clients any court of competent jurisdiction shall, on not less than 5 days’ notice to the adverse party, adjudicate the rights of the parties and enforce such lien in term time or vacation.


author: MR. JUSTICE ENGLISH

text:
    People of the State of Illinois, ex rel. American National Bank and Trust Company of Chicago, as Trustee under Trust No. 23679, Plaintiff-Appellant, v. Sidney D. Smith, Commissioner of Buildings of the City of Chicago, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 53,129.
    First District, Fourth Division.
    May 21, 1969.

      L. Louis Karton, of Chicago, for appellant.
    Raymond F. Simon, Corporation Counsel of the City of Chicago (Marvin E. Aspen and Stuart Sikevitz, Assistant Corporation Counsel, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

In July, 1966, defendant issued to La Salle National Bank, as Trustee, a building permit (No. B 377334) for the construction of a three-story, twenty-four-unit apartment building pursuant to plans submitted as described later in this opinion. Thereafter, relator (hereafter referred to as plaintiff) purchased the land in question from La Salle and proceeded with some excavation work. In September, 1966, defendant halted the work by issuing a stop order. Plaintiff then brought this action for a writ of mandamus to compel defendant to rescind the stop order. After hearing, the court entered judgment in favor of defendant. Plaintiff appeals, claiming that defendant is estopped from preventing plaintiff from proceeding with construction pursuant to the building permit. The pertinent facts are not in dispute.

The subject property is located at 2619-27 West Agatite Avenue, Chicago. It is trapezoidal in shape, bounded on the north by 99 feet of frontage on Agatite Avenue, on the south by 44% feet of frontage on Montrose Avenue, on the west by 290 feet of the North Shore Channel, and on the east by 290 feet abutting the property of J. D. Brown. Agatite Avenue does not bridge the channel but comes to a dead end in front of the property in question. This property was purchased in 1956 by La Salle as trustee. At that time it was zoned for apartment use under the 1942 Comprehensive Amendment to the Chicago Zoning Ordinance. The 1957 Comprehensive Amendment to the Chicago Zoning Ordinance reclassified this property in its north half as an R3 general residence district, and in its south half as a restricted service district. This reclassification, though permitting limited apartment construction, did not permit the type of building anticipated by La Salle when the land was purchased; so, in May, 1963, it brought an action (Cause No. 63 S 12330) to invalidate the zoning ordinance as it applied to the subject property. La Salle proposed to build a twenty-four-unit apartment building consisting of three stories to a height of 30 feet. Eighteen off-street parking spaces were to be provided on the Montrose Avenue portion of the property, with a ten-foot wide driveway on the eastern boundary connecting it to Agatite Avenue. This driveway would connect to an east-west alley bisecting the block between Agatite and Montrose Avenues. The proposed building would have met the requirements of the R4 general residence district classification.

On January 3, 1964, after hearings and considering all relevant evidence, the Master concluded that La Salle’s claim was meritorious, and recommended that the property be rezoned to permit the proposed construction. Among the conclusions of the Master’s Report, it was stated:

10. The present R3 General residence district classification applying to the northern half of the Subject Property would permit the construction of a 3-story apartment building 30 feet high on the site, which could be placed within 6 feet of the lot directly east of the Subject Property. Plaintiff’s proposed use is intended to be 30 feet high and 10 feet of its westerly line or k feet further from the lot line than is presently required, thereby providing more space between the proposed use a/nd the building next east than now required. . . . (Master’s emphasis.)

It was also concluded that the 18 off-street parking spaces would prevent an increase in the traffic and parking problems in the neighborhood. The connecting driveway along the east side of the property would also alleviate the effect of the present dead end, as defendant had previously suggested be done with a public alley. On April 6, 1964, the Final Judgment Order was entered in the Circuit Court adopting the Master’s Report in all respects. It was ordered that La Salle, and all persons claiming through it, had a legal right to construct a 24-unit apartment building on the property, in compliance with all applicable construction provisions of the Chicago Building Code. It further ordered that if La Salle, or any person claiming through it, should apply for a building permit, it should be issued, if such application covered erection of a building which “would contain twenty-four units and would substantially conform to the plans submitted by the plaintiff in this cause, and would provide 18 off-street parking spaces,” and if the application met the construction requirements of the Chicago Building Code. On October 26, 1964, a building permit was issued to La Salle, and was renewed on April 23, 1965, and again extended on October 18, 1965. All of these permits indicate that they were issued on plans submitted by Architect B. Krauss, 300 W. Washington Street, the two later ones also indicating on their face that they were extensions of the first one.

On July 25,1966, defendant issued Permit No. B 377334 for the construction of a three-story, 24-unit apartment building, made no reference to the earlier permits, and indicated that it was issued on the basis of plans dated July 12,1966, and submitted by Architects Shayman and Salk, 5844 N. Lincoln Avenue. These plans, which were prepared not for La Salle but for plaintiff in this case, contained a notation on their first page which read, “Twenty-four apts. Circuit Court Order No. 63 S 12330.” Plaintiff alleges that it was in reliance on this permit that it purchased the property from La Salle and incurred $50,000 of expenses in excavation work for the building. On September 23,1966, defendant issued a stop order against construction under Permit No. B 377334 on the ground that the new plans of July 12, 1966, did not provide for a 10-foot side lot building line on the east, and therefore were not in substantial compliance with the plans which had been submitted to the Circuit Court and had been required by its order. Plaintiff made a demand on defendant to rescind the stop order but to no avail; so, plaintiff brought the action, now before us on appeal, for a Writ of Mandamus to issue against defendant commanding him to rescind his stop order.

At the trial, George L. Shapiro, a lawyer and 50% beneficial owner of the subject property under plaintiff’s trust, testified on behalf of plaintiff that the property had been purchased on July 12, 1966, and a trust agreement entered into on the same date. He had previously had his architects (Shayman and Salk) prepare new plans which were turned over to the seller who had then obtained the permit. A purchase price was paid and 24 caissons were put in. Arrangements were also made for a mortgage. (The court did not deem it relevant for the witness to show further commitments, obligations incurred, or expenditures.)

Defendant was called by plaintiff under section 60 of the Civil Practice Act (Ill Rev Stats 1965, c 110, § 60), and testified that his duties, as Commissioner of Buildings for the City of Chicago, are to enforce the provisions of the Municipal Code pertaining to buildings. He must examine plans submitted to the Building Department and see that building permits are issued by the department if the plans meet the requirements of the Code. Permit No. B 377334 was issued to La Salle on July 25, 1966, and it permits the erection of a 3-story, twenty-four-unit apartment building at 2619-27 W. Agatite. This document is issued when a person submits a proper application, and after the plans have been reviewed by the various sections of the department. He stopped the work on the construction in question, but does not know if the permit has been revoked. Work was stopped because the court order indicated that the building would have to be in substantial compliance with the plans that had been submitted to the Master and the Court. The new plans did not show the 10-foot side lot building line which had been indicated on the original plans reviewed by the Master and the Court, and, in his opinion, were therefore not in substantial compliance.

Raymond M. Hayes testified on behalf of defendant as an appraiser. He described the subject excavation as coming to the lot line of the neighboring property on the east, and said that in his opinion plaintiff’s building would have a detrimental effect on the value of the neighborhood of 10 to 15% because of the increased parking problem and the inability of fire trucks or ambulances to drive in to the dead end and turn around.

The trial court decided that plaintiff was not entitled to a Writ of Mandamus, and entered judgment in favor of defendant. Plaintiff now appeals, claiming that it had relied upon the issuance of Permit No. B 377334 to assume financial obligations and expenses and to commence the construction of the building, and, therefore, defendant was estopped from preventing the completion, of the building.

We find that there was no error in the trial court’s decision. A Writ of Mandamus is a summary writ, commanding the officer or body to whom it is addressed to perform some specific duty which claimant is entitled, of right, to have performed and which the party owing the duty has failed to perform. Wehrmeister v. Carlman, 17 Ill App2d 171, 183, 149 NE2d 453. It is not a writ of right but is awarded only in the exercise of sound judicial discretion in accord with legal principles. People ex rel. Cannella v. City of Chicago, 7 Ill2d 416, 131 NE2d 98; Thornton v. Ramsey, 24 Ill App2d 452, 165 NE2d 65; Walter Rogers, Inc. v. Mortimer, 19 Ill App 2d 381, 153 NE2d 855. A claimant, therefore, must show a clear legal right to the writ, and there must be a clear neglect or refusal on the part of the defendant to perform the act sought to be enforced. Thornton v. Ramsey, supra; Walter Rogers, Inc. v. Mortimer, supra; Wehrmeister v. Carlman, supra. Mandamus to compel the rescinding of the stop order was an appropriate remedy for plaintiff to seek on the facts of the case now before us (Wehrmeister v. Carlman, supra; People ex rel. Deddo v. Thompson, 209 Ill App 570; Thornton v. Ramsey, supra; Walter Rogers, Inc. v. Mortimer, supra), but plaintiff did not establish its right to the relief sought.

The estoppel claim of plaintiff must find its base in the final judgment order entered by the Circuit Court upon the Master’s Report in the zoning hearing. That decree, however, was expressly limited to plans in substantial conformity with the plans which had been submitted for court review in that action. Those very plans were submitted in the first three permit applications. Plaintiff then revised the plans to eliminate the side driveway space — one of the salient features which had been found to be important in the zoning case — and obtained Permit No. B 337334 for the construction of the apartment building. Now, on the authority of this permit, plaintiff claims that it had incurred certain expenses and obligations amounting to a substantial change of position, and defendant is therefore estopped from interfering with the construction of plaintiff’s apartment building.

Estoppel depends on the facts and circumstances as justice may require. Where a party, acting in good faith under affirmative acts of the city, has made such expensive and permanent improvements that it would be highly inequitable and unjust to destroy the rights acquired, the doctrine of equitable estoppel has been applied, and plaintiff relies on these cases. People ex rel. Deddo v. Thompson, 209 Ill App 570; Cities Service Oil Co. v. City of Des Plaines, 21 Ill2d 157, 171 NE2d 605; Wehrmeister v. Carlman, 17 Ill App2d 171, 149 NE2d 453; Sinclair Refining Co. v. City of Chicago, 246 Ill App 152. Plaintiff here, however, has not established the reliance in good faith which is necessary to vest it with a right to mandamus. It is obvious to us that the suit by La Salle to invalidate the R3 general residence and B4-2 restricted service zoning was successful, in major part, because both the Master and the Chancellor were strongly influenced by the proposal to provide a driveway on the east side of the lot from Agatite Street to the off-street parking space, and the decree so provided, in effect.

Plaintiff subsequently purchased the subject property and assumed with it the right to build a twenty-four-unit apartment only in compliance with the Circuit Court’s final judgment order. This order entered with respect to real property is binding and enforceable upon plaintiff-purchaser since its property rights arose by succession after the institution of the particular suit and were acquired through a party to it. Smith v. Estate of Womack, 17 Ill App2d 264, 149 NE2d 778; Sweeting v. Campbell, 2 Ill2d 491, 119 NE2d 237. Plaintiff could enforce the adjudged right to obtain a permit for the construction of a building which “would substantially conform to the plans submitted by the plaintiff” in the zoning action. Contrariwise, if there were not substantial con-fortuity to those plans, the city would have the duty to deny such a permit. It is conceded that if the Commissioner of Buildings issues a permit based upon submitted plans, and he subsequently discovers a deviation from the plans, he has the power to stop work on the building. Municipal Code of Chicago, Ill (1967), §43-10. As a parallel, we believe that the subsequent discovery of noncompliance with a judicial order specifying certain prerequisites raises a similar valid right in the Commissioner to reexamine the legality of the permit’s issuance and to stop the work if indicated.

The testimony of the principal beneficial owner of the subject property reveals that he has been an attorney for 33 years and an investor and builder for 10 years, having built approximately a million dollars worth of buildings. We must conclude that he was aware of the Circuit Court decree permitting the change in the zoning for the construction of a building incorporating only the essential features of the plans considered by the court. In fact, the plans eventually submitted by plaintiff were so inscribed on their face when the permit was issued. While it is true, as argued by plaintiff, that the Circuit Court decree makes specific reference only to a twenty-four-unit apartment building and the 18-space off-street parking, it is also true that the decree adopted the Master’s Report “in all respects.” More importantly, it specifically limits the authorized building to one which “would substantially conform to the plans submitted by the plaintiff in this cause.” Plaintiff had actual knowledge of the plans which had been submitted to the court, as Shapiro testified that the former owner (from whom he purchased the property) turned them over to him in connection with the purchase negotiations. Shapiro, in turn, gave them to his own architects and directed the preparation of new plans, which, so far as the record shows, were substantially the same as the old ones except that the size of the building was increased, thereby adding to its rent potential, and eliminating the open side yard space in the process. This could not have been an inadvertent alteration of the plans, and it is significant that plaintiff does not contend that the new plans “substantially conform” to the original plans which the court had approved. Plaintiff relies exclusively on the estoppel point, arguing that the City should be estopped by the approval of the plans, in effect, through issuance of the permit, regardless of how mistaken the City’s subordinate employees may have been in so doing. This argument translates itself into the proposition that if the requirements of the court’s decree are violated through inadvertence, or otherwise, the City is helpless to correct its error and must forever remain in violation, if not in contempt, of the court’s command.

It also appears that defendant acted by issuing the stop order as soon as he discovered the deviation from the Circuit Court’s order. The permit was issued on July 25, 1966, and the stop order was issued on September 23, 1966. Under the circumstances, defendant’s actions were justified. Wise v. City of Chicago, 183 Ill App 215; Sinclair Refining Co. v. City of Chicago, 246 Ill App 152; Paulus v. Smith, 70 Ill App2d 97, 217 NE2d 527. In the Sinclair case, a building permit for a gas station was revoked six weeks after it was issued because the plaintiff had failed to obtain an exception to a zoning ordinance from the city council. The court explained that the plaintiff knew both the law and the facts, yet it proceeded to build with an illegal permit. The court eschewed the estoppel plea because there was no indication that the city, by any positive acts, had led the plaintiff to act to its detriment. In the Wise case, a building permit was revoked after construction of a garage had commenced, because the plaintiff had received the approval of only some, but not all, of the neighbors in the block. The city had no authority to issue a permit in that circumstance, and the plaintiff, by his conduct, appeared to know it. In Paulus, the plaintiff had received a permit to erect a billboard which, by both the plaintiff’s and the defendant’s measurements, was less than 400 feet from an expressway and thus in violation of a city ordinance. The permit was revoked in spite of the estoppel claim, since the plaintiff had known of the ordinance.

Plaintiff here relies on Cities Service Oil Co. v. City of Des Plaines, 21 Ill2d 157, 171 NE2d 605. In that case, the plaintiff brought suit to enjoin the enforcement of an ordinance prohibiting the location of a gas station within 300 feet of a church. There, the plaintiff’s building was under construction with a permit when the work was stopped and the permit revoked for violation of the ordinance. The court found that the city was estopped from interfering with the completion of the structure because the plaintiff had absolutely no knowledge of the violation. The opinion recognized that “if one is aware of the applicable ordinance, or makes no attempt to know of it, the issuance of a permit contrary thereto does not create an estoppel against the city.” The court found, however, that the city had denied the plaintiff access to copies of the ordinance while actively inducing it to commence construction. These propositions do not apply here.

The general rule is that a city cannot be es-topped by an act of its agent beyond the authority conferred upon him. Anyone dealing with a governmental body takes the risk of having accurately ascertained that he who purports to act for it stays within the bounds of his authority. Cities Service Oil Co. v. City of Des Plaines, supra; Sinclair Refining Co. v. City of Chicago, 246 Ill App 152; Wise v. City of Chicago, 183 Ill App 215; Paulus v. Smith, 70 Ill App2d 97, 217 NE2d 527. We are aware that this rule is qualified, however, to enable a party to invoke the doctrine of estoppel where action was induced by the conduct of municipal officials, and where, in the absence of such relief, a substantial loss would be suffered and the municipality would be permitted to stultify itself by retracting what its agents had done. Cities Service Oil Co. v. City of Des Plaines, supra; People ex rel. Deddo v. Thompson, 209 Ill App 570; Wehrmeister v. Carlman, 17 Ill App2d 171, 149 NE2d 453.

Plaintiff here submitted his plans and received his permit through the regular administrative procedure. There were no policy decisions to be made or approved in securing plaintiff’s permit. Nor was there any actual inducement by any governmental official. The permit was issued merely through an administrative mistake by a member of defendant’s staff. As stated in Sinclair Refining Co. v. City of Chicago, 246 Ill App 152, the basis for estoppel must be an act of “the city itself,” such as legislation by the city council, and not just an unauthorized act of a ministerial officer or a ministerial misinterpretation. On this ground we distinguish People ex rel. Deddo v. Thompson, 209 Ill App 570, and Wehrmeister v. Carlman, 17 Ill App2d 171, 149 NE2d 453. In the Thompson case, the city council itself had directed the issuance of a permit to the plaintiff to construct a garage, although it was known by all concerned that such construction was in violation of an ordinance prohibiting it within 200 feet of a hospital or a school. After completion of the building, an operating license was denied to the plaintiff because of the ordinance violation. The court held that, under this circumstance, the city was estopped to deny the plaintiff the license, since the city had made a special exception for the plaintiff, not unlike a zoning change, and had induced plaintiff to proceed in good faith. In the Wehrmeister case, the building commissioner suggested and permitted a deviation from the current zoning ordinance in 1924 on condition that the plaintiff develop her land under his strict supervision. Half of the land was so developed by the plaintiff, with many suggestions and inspections being made by the commissioner. From 1945 to 1956, the plaintiff tried to obtain a permit to develop the remainder of the land. The applications were denied, so a mandamus writ was issued against the village because of the prior active inducement to plaintiff to build her house in accordance with the suggestion of the village officers. The court said, “There have been positive acts by the municipal officers here, years ago, which induced action by the plaintiff, . . . .” (Emphasis supplied.)

Similarly, plaintiff cites Deer Park Civic Ass’n v. City of Chicago, 347 Ill App 346, 106 NE2d 823, Fifteen Fifty North State Bldg. Corp. v. City of Chicago, 15 Ill2d 408, 155 NE2d 97, and Renieris v. Village of Skokie, 85 Ill App2d 418, 229 NE2d 345, for the proposition that any substantial change of position through expenditures, or incurrence of obligations under a building permit, entitles the permittee to complete the construction and use the premises for the purpose authorized, irrespective of subsequent zoning or changes in zoning. Post-permit zoning changes are irrelevant in the case now before us. In each of those three cases, the plaintiff obtained a valid building permit or was in a position probably to obtain a valid permit under existing zoning ordinances. Relying on this authority, the plaintiffs incurred substantial expenses by commencing the construction of their buildings. Subsequently, the zoning ordinances were amended in such a way as to render the building permits inconsistent with the zoning of the subject property. The courts held that the cities in question were estopped from revoking the once valid building permits solely on the basis of the subsequently amended zoning. These three cases are therefore distinguishable from the case before us.

A final argument of plaintiff is that it was denied the opportunity at trial of showing the full extent of its expenses and commitments incurred under the building permit. We find that the evidence was adequate for the presentation of plaintiff’s theory of the case, but we don’t agree with the theory, so we find no merit in this contention.

The decision of the Circuit Court is affirmed.

Affirmed.

DRUCKER, P. J. and STAMOS, J., concur.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Will Scott, Defendant-Appellant.
    Gen. No. 52,255.
    First District, Third Division.
    May 22, 1969.

      John K. Kneafsey, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

In a bench trial the defendant, Will Scott, was found guilty of the unlawful possession of a narcotic drug and was sentenced to the Illinois State Penitentiary for a term of not less than five nor more than seven years. From this judgment of conviction the defendant appeals.

The defendant contends that 1) the trial court’s granting of an extension for trial violated his right to a speedy trial; 2) the trial court erred in allowing illegally obtained narcotics into evidence; and 3) the evidence was insufficient to establish his guilt beyond a reasonable doubt.

At the pretrial hearing on the motion to suppress and at the trial of the cause itself, the prosecution presented the following evidence. On the night of February 9-10, 1966, Officer Harold Johnson of the Chicago Police Department received a telephone call from Helen Robinson, alias Barbara Williams, who had aided the police in the past in securing convictions in narcotics cases. Mrs. Robinson told the police that she could make a “controlled buy” of narcotics from a man named Will in his apartment in the Wedgewood Hotel. She was taken to the police station, searched, and was given $23 in currency dusted with fluorescent powder.

Officers Harold Johnson and Felix Munez accompanied the informer to the Wedgewood Hotel, and they watched her get off the elevator and enter apartment 412. She remained in the apartment for about five minutes and then emerged and handed the police a tinfoil packet. The contents of the packet were field tested and were found to be heroin. Officer Munez remained to watch the door of the apartment while his fellow officer Johnson took the informer back to the police station where she was again searched. Johnson returned to the apartment and, accompanied by Munez, unlocked and opened the door to apartment 412 with the aid of a passkey. The police discovered the defendant standing near his bed while holding a hypodermic needle containing a white liquid. The police also saw two tinfoil packets in plain view on the bed. The packets were similar to the one given them by the informer. Seated on the bed was a woman known as Florence Bush who remained stationary. The packets were seized by the officers and the two occupants were arrested. The packets also contained heroin. The defendant was searched and the predusted currency was found in his pocket. Fluorescent spots were also found on the defendant’s right hand and on the lip of his pocket from which the currency had been taken. The defendant was taken into custody and charged with unlawful sale and unlawful possession of narcotic drugs.

The defendant testified that the police entered his apartment but took nothing from his premises. He admitted meeting in his apartment a woman introduced to him as Barbara Williams but denied giving narcotics to her.

The defendant contends that the trial court abused its discretion in granting the State’s petition for an extension within which to bring the defendant to trial, and therefore the defendant was not tried within the required time under section 103-5 of the Criminal Code (Ill Rev Stats 1965, c 38, § 103-5). The State petitioned for the extension on the ground that the material informer-witness, Helen Robinson, was unavailable and that her testimony was essential to the State’s case. Only a few days prior to its petition, the State discovered that the informer was in the custody of federal authorities in West Virginia. The State continued to be unsuccessful in obtaining the witness and therefore decided to proceed to trial on the possession charge. The defendant seems. to stress the fact that the State’s failure to call the informant at trial on the possession charge indicates that the extension should not have been given in the first instance. Such an argument ignores the fact that at the time the request for an extension was made, it appeared to the trial judge that the sale and possession charges were going to be tried together, and therefore the presence of the informant was material in the forthcoming trial. A trial judge’s determination whether grounds exist for an extension under section 103-5 (c) will not lightly be disturbed on review, and his discretion will not be disturbed unless there has been a clear abuse of discretion. (People v. Irish, 77 Ill App2d 67, 222 NE2d 114.) Under these facts, we cannot say that there was such an abuse of discretion since in determining whether the granting of the extension was a reasonable exercise of discretion, the situation must be viewed as of the time it was presented to the trial judge and not as it might appear in retrospect in light of subsequent events. People v. Poland, 22 Ill2d 175, 174 NE2d 804; People v. Adams, 106 Ill App2d 396, 245 NE2d 904.

Another argument advanced by the defendant is that the court erred in denying his motion to suppress the evidence of the two seized packets of heroin on the ground that such evidence was obtained by means of an illegal search and seizure. It is undisputed that the police officers had neither a search warrant nor an arrest warrant when they entered the defendant’s apartment. The Supreme Court in People v. Jones, 31 Ill2d 240, 243-44, 201 NE2d 402, aptly and succinctly discussed the standards to be applied in the context of a warrant-less search and arrest:

“The test, therefore, is not whether it was reasonable or practicable for the officers to obtain a search warrant, but whether the search was unreasonable. It is well-established that a search without a warrant is reasonable and valid if it is incident to a lawful arrest and there is no requirement that the arrest be under the authority of an arrest warrant. (Ker v. California, 374 US 23, 41, 83 S Ct 1623, 10 L Ed 726.) In turn, the validity of an arrest without a warrant depends upon whether the officers had reasonable cause to believe that an offense had been committed and that the defendant had committed it. (People v. Jones, 16 Ill2d 569, 573.) The test is not whether there is sufficient evidence to convict the arrested person, but probable cause exists for arrest where a reasonable and prudent man, having the knowledge possessed by the officer at the time of the arrest, would believe the defendant committed the offense. (People v. Hightower, 20 Ill2d 361, 366.)”

The facts in the case at bar reveal that the officers had probable cause to believe that a crime had been committed in apartment 412. They had acted upon information supplied by an informer who had established her past reliability. They observed the informer’s entering and departing the apartment, and they made a field test of the purchased matter which proved to be heroin. Their surveillance of the apartment disclosed that no one had entered or left the apartment after the informant had left. Since the officers had probable cause to make the arrest, the search incident thereto which resulted in the confiscation of the two packets of heroin was also valid.

The defendant questions the propriety of the officers’ entering the apartment by means of the passkey. It must be emphasized that this court has concluded that probable cause for the arrest existed before they entered the apartment. Section 107-5 (d) of the Criminal Code reads:

“All necessary and reasonable force may be used to effect an entry into any building or property or part thereof to make an authorized arrest.”

This statutory language is a codification of well-established case law. People v. Bankhead, 27 Ill2d 18, 187 NE2d 705, upon which the defendant heavily relies, is readily distinguishable from the instant case since in Bankhead the court held that the entry of police into the accused’s apartment was wrongful because probable cause for the arrest did not exist prior to the entry to the apartment. In People v. Chavis, 79 Ill App2d 10, 223 NE2d 196, police officers gained entry into the accused’s apartment with the consent of the accused’s sister, but the court went on to say at page 17:

“The trial judge was correct in his refusal to suppress, the articles of clothing which were lying in open view on defendant’s bed. . . . Therefore, when the police arrived at Strong’s apartment they had reasonable grounds to believe that Strong had committed a crime and that he was at home. They could then legally enter the apartment even without the consent of Strong’s sister, who opened the door.” (Emphasis supplied.)

We therefore conclude that the arrest and search incident thereto were valid and that the trial court properly denied the defendant’s motion to suppress.

The third and final argument made by the defendant is that the State failed to prove beyond a reasonable doubt that the defendant was in possession of narcotic drugs. The testimony of the police officers, if given credence by the trier of fact, was amply sufficient to establish the element of possession. The packets of heroin which were the subject matter of the possession charge were found in open view on the defendant’s bed in his apartment. The defendant’s shirt was also on the bed, and the defendant was standing by the bed holding a syringe when the police entered the apartment. There is nothing in the record to indicate that the other occupant, Florence Bush, was other than a guest in the defendant’s apartment.

It is true that in order to support a conviction for illegal possession of narcotics, the prosecution must show that the narcotics were in the immediate and exclusive control of the accused and that the accused had knowledge of such possession. (People v. Embry, 20 Ill2d 331, 169 NE2d 767; People v. Mack, 12 Ill2d 151, 145 NE2d 609.) But it is also true that actual physical possession need not be demonstrated where it can be inferred from the facts that constructive possession exists at the place where the narcotics are found. In People v. Nettles, 23 Ill2d 306, 308-309, 178 NE2d 361, the court said:

“The underlying principle of the Mack and Embry cases is that where narcotics are found on premises under defendant’s control, it may be inferred that the defendant had both knowledge and control of the narcotics. This inference is based largely upon the nature of the commodity and the manner in which its illegal traffic is conducted. . . . Human experience teaches that narcotics are rarely, if ever, found unaccountably in a person’s living quarters.
“We are of the opinion, therefore, that where narcotics are found on the premises under the control of defendant, this fact, in and of itself, gives rise to an inference of knowledge and possession by him which may be sufficient to sustain a conviction for unlawful possession of narcotics, absent other facts and circumstances which might leave in the mind of the jury, or of the court where a jury is waived, a reasonable doubt as to his guilt.”

The facts of the instant case clearly give rise to an inference of possession sufficient to sustain the conviction of the defendant, Will Scott.

For the foregoing reasons, the judgment is affirmed.

Affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


author: MR. JUSTICE SCHWARTZ.

text:
    James Nolan, Plaintiff-Appellee, v. Combined Insurance Company, Campbell, Lowrie, Lautermilch Corporation, Murphy & Miller, Inc., and Carrier Corporation, Defendants, and Hultgren Electric Corporation, Defendant-Appellant.
    Gen. No. 52,551. (Abstract of Decision.)
    First District, Third Division.
    May 22, 1969.
    Doyle, Berdelle & Taipey, of Chicago and Jerome H. Torshen, of Chicago (Jerome H. Torshen, of counsel), for appellant;
    Horwitz, Anesi & Ozmon, of Chicago (Dario A. Garibaldi, Nat P. Ozmon and Richard A. Lewin, of counsel), for appellee.
   Opinion by

MR. JUSTICE SCHWARTZ.

Not to be published in full.


author: PRESIDING JUSTICE LYONS.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Charles Lee Thomas, Defendant-Appellant.
    Gen. No. 52,071. (Abstract of Decision.)
    First District, Second Division.
    May 27, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, of counsel), for appellant;
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Thomas M. Walsh, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE LYONS.

Not to be published in full.


author: MR. PRESIDING JUSTICE LYONS

text:
    First Finance Company, an Illinois Corporation, Plaintiff-Appellant, v. George S. Akathiotis, d/b/a Merchants Restaurant, Defendant-Appellee.
    Gen. No. 52,563.
    First District, Second Division.
    May 27, 1969.
    Baime and Baime, of Chicago (Joseph L. Baime and Stephen G. Baime, of counsel), for appellant.
    No brief filed for appellee.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from a judgment entered by the trial court, sitting without a jury, in favor of defendant, George S. Akathiotis, d.b.a. Merchants Restaurant, and against First Finance Company, plaintiff, such judgment being entered at the close of plaintiff’s case. In this appeal plaintiff contends that the trial court erred in entering the judgment for defendant and prays that the cause be reversed and remanded to the trial court with directions that it hear the evidence of defendant.

On October 1, 1964, George S. Akathiotis, d.b.a. Merchants Restaurant, and the Pascal Equipment Company entered into an agreement which provided that the latter would supply all the necessary labor, materials, equipment, and fixtures for the conversion of a store front into a restaurant according to specifications. The restaurant known as Merchants Restaurant is located at 16 North State Street in the City of Chicago. The agreed price was $135,400; $10,000 to be paid at the time of execution of the memorandum of agreement, $10,000 on October 15, 1964, $10,000 on November 1, 1964, and $12,000, the additional amount necessary to constitute a one-third down payment, on November 15, 1964. The balance of $93,400 was to be financed.

The agreement anticipated that the financing of the balance could be accomplished by giving chattel mortgages to Pascal on the fixtures of, and assignments of the leases to, two other restaurant premises. The memorandum of agreement stated that neither Pascal nor its financiers would record any lien against the fixtures and equipment to be installed, until November 25, 1964, and further provided that in the event that the chattel mortgages and leases referred to above were executed in favor of and accepted by Pascal on or before that date no filings or recordings would ever be made against the fixtures and equipment then or to be located in the premises to be known as Merchants Restaurant. Ultimately the financing of the balance of the contract price was accomplished by the giving of chattel mortgages on the fixtures of the two other restaurants to a separate financing institution which is not involved in this case.

On November 24, 1964, Pascal executed a security agreement in favor of First Finance Company, plaintiff-appellant, covering certain restaurant fixtures and equipment and fixing 16 North State Street, the site of Merchants Restaurant, as a proper place for the keeping of such collateral. On November 25, 1964, a financing statement was filed pursuant to the Uniform Commercial Code (Ill Rev Stats, c 26, § 9-302(1)) for perfection of the security interest just described. In addition, Pascal assigned to First Finance its interest in the agreement with Akathiotis, part of which was a conditional sales agreement for the fixtures and equipment to be installed in Merchants Restaurant. Both the security interest created by the security agreement of October 24, 1964, and the assignment of the Akathiotis contract on November 23, 1964, were assigned as collateral for two loans made by First Finance to Pascal.

The work was ultimately completed to the satisfaction of Akathiotis and the contract price was paid in full to Pascal. Pascal, however, became insolvent before its debt to First Finance was satisfied and thereafter a demand was made of Akathiotis by First Finance for the fixtures and equipment described in the security agreement. The demand was not honored and an action in detinue was filed for the goods or their value.

The plaintiff has not sought to enforce its rights as assignee of the agreement between Pascal and Akathiotis: (1) there is nothing in the record to show that Akathiotis was notified of the assignment or that demand was made of him to make payments under the contract as they became due to First Finance as assignee; (2) First Finance admits in its reply brief and in oral argument in this court that it did not attempt to enforce its rights as assignee of the agreement, “With respect to the assignment of the Akathiotis-Pascal contract of October 1,1964, plaintiff did not elect to exercise its rights under that item of collateral.” Plaintiff cannot now attempt to enforce those rights against the defendant. Defendant paid the full contract price to his seller as he was authorized to do under section 9-318 of the Code, absent notice by the assignee of the assignment and demand that payments be made to the assignee.

There remains to be considered, then, only the effectiveness of the security interest purported to be given to plaintiff by Pascal as against the latter’s purchaser, defendant-appellee. Section 9-306(2) of the Uniform Commercial Code (Ill Rev Stats, c 26, § 9-306 (2)) provides :

“Except where this Article otherwise provides, a security interest continues in collateral notwithstanding sale, exchange or other disposition thereof by the debtor unless his action was authorized by the secure party in the security agreement or otherwise, and also continues in any identifiable proceeds including collections received by the debtor.” (Emphasis supplied.)

The exceptions noted in this section are contained in sections 9-307, 9-308, and 9-309 of the Code. Sections 9-308 and 9-309 are inapplicable since they concern sales of collateral other than goods such as are involved here and section 9-307 is likewise inapplicable since it governs sales of goods made in violation of the security interest. The sale to Akathiotis was not in violation of the security interest taken by First Finance since the contract of sale existed prior to the security interest and at the time the security agreement was executed First Finance had knowledge of and acquiesced in the sale. This fact is evidenced by the plaintiff having taken an assignment of the contract of sale on the day prior to execution of the security agreement and by the financing statement filed by plaintiff with the Secretary of State in which specific reference to the contract of sale is made:

“All present and hereafter acquired restaurant fixtures and equipment located in the premises at 16 N. State St., Chicago, Illinois, being contained in a certain Memorandum of Agreement dated October 1, 1964 wherein GEORGE AKATHIOTIS is referred to as the ‘Owner’ and PASCAL EQUIPMENT CO., INC. is referred to as ‘Pascal,’ said location of 16 N. State St., Chicago, Illinois, being operated and known as ‘Merchants Restaurant.’ ”

This acquiescence in the sale by Pascal to Akathiotis also constitutes an authorization of sale which, under section 9-306(2) of the Code as previously quoted, allowed defendant to take free of the security interest created by his seller in favor of First Finance.

Finally, plaintiff-appellant argues that the provision in the agreement between Pascal and Akathiotis which limited the right of the former, or its financiers, to file or record liens against the fixtures and equipment to be installed before a certain date necessarily had a corollary meaning that on or after that date Pascal or its financier had a right to file or record a security interest or lien against the chattels installed in the premises, and that such lien would be effective as to Akathiotis. We find this contention to be without merit. The provision constituted a limitation upon the rights which Pascal or its financier might have had, could not and was not intended to confer new rights, and does not provide an adequate substitute for “value” which would be necessary as an independent basis for a separate security interest to attach to the goods and be effective against defendantappellee (Ill Rev Stats, c 26, § 9-204(1)).

We hold that the trial court did not err in entering judgment for defendant at the close of plaintiff’s evidence and therefore the judgment of the trial court is affirmed.

Judgment affirmed.

BURKE and McCORMICK, JJ., concur.