Volume 24 — New York State Reporter

<p>1. Examination of party before trial—When order may be had.</p> <p>Plaintiff may have an order for the examination of the defendant "before trial in an action for injuries alleged to have been sustained through the negligence of defendant in selling to plaintiff a tool which the former knew was dangerous and unfit for use for the purpose of showing that the defendant was the manufacturer, such fact bearing upon the question of the negligence of defendant', that plaintiff could establish such fact by other witnesses is no objection to such order.</p> <p>3. Same—Affidavit—Sufficiency of allegation to show nature of action.</p> <p>The nature of the action is sufficiently shown by an allegation in the moving papers, that the action is brought to recove: damages for a personal injury resulting from defendant’s negligence.</p>

<p>Attorney and client—Right oe party to change attorney.</p> <p>The fact that the attorney of a party, who is obnoxious to her, claims a lien by an agreement with such party, of doubtful validity, upon a note, which may possibly be collected in the action, should not preclude said party from confiding the further charge of her litigation to another attorney of her choice.</p>

<p>1. Negligence—Nuisance—Liability of lessee.</p> <p>A person who occupies the first floor "of a Milding, over thelsidewalk of which there had been erected a wooden .awning, without any license “from the city authorities, but such occupant received the benefits of such awning as a "part of the demised, premises: 'Held, that "such tenant of the premises is guilty of maintaining a nuisance, and is liable to any one injured thereby; and it makes ño difference whether he was tenant by the month • . or by the year, for he is held liable, for the reason that he maintained a nuisance, apd not because he failed to make repairs, -</p> <p>.2. Same—When a defense must be pleaded in answer.</p> <p>It seems that, even if such license had been granted,"before the defendant can avail himself of such a defense, he must plead it in his answer.</p> <p>3. Same — When refusal of court to charge as requested, not ERROR.</p> <p>Refusal of the court to charge on requests of defendant, which had no application to‘the questions on trial: Held, not error.</p>

<p>Banks and banking—Bona side purohaseb—Payment by check.</p> <p>Where a depositor delivers his check to his bank, it is a parting with present value, and vests him. with a good title to drafts bought of another bank and thus paid for, although said bank fails to remit their price according to custom, and so has no title to them.</p>

<p>Appeal from judgment dismissing plaintiff’s complaint entered on report of referee.</p>

<p>Jurisdiction—Of court—When cannot be interfered -with.</p> <p>Where jurisdiction, complete in all respects, is secured over the subject-matter oí an action, no attempt can be made in a second Suit to interfere with the prior litigati'-n, or to divest a referee or the court of the power to complete its hearing and make a final disposition of it.</p>

<p>Death—Date of—Disappearance.</p> <p>The intestate who was a wealthy man of Brooklyn, disappeared November 16, 1876. The day before, he attempted suicide by jumping from a ferry boat. He was apprehended and locked up. On the following day he was released, and was last seen in New York on that day. Held, that the date of his disappearance was the date of his death.</p>

<p>Master and servant—Liability of master for act of servant— When question for the jury.</p> <p>The testimony tended to show that defendant was proprietor of a theatre; that one Wynnett, one of his company, was collecting tickets for him, and attending to those who -wanted to exchange seat tickets, and while so engaged, was approached by plaintiff with a request to exchange certain tickets; that upon plaintiff’s refusal to get into line and await his turn, Wynnett assaulted him. Held, that there was sufficient evidence to submit the question to the jury, whether IV ynnett was a servant of defendant, and, while acting within the scope of his employment, committed the assault, and that a non-suit was properly denied.</p>

<p>Co-partnership—When dissolvable at will oe either party.</p> <p>This action was based solely upon an alleged breach of a co partnership agreement, in that the defendant terminated the same and refused to continue in business with plaintifi under such contract. The agreement did not fix the term. Held, that there was no breach, and that the co-partnership was dissolvable at the will of either party.</p>

<p>Police Department—Brooklyn (city op)—Bules and regulations— What constitutes violation oe.</p> <p>The relator, a patrolman, was dismissed from the force for a violation of Rule 136, regulating the government of the force, which provides that “ in case of fire, burglary, riot, or other emergency * * * the patrolman who discovers the same shall, immediately send information to the officer in command * * * and in tlie meantime take such action as the case may require.” Held, that an attempt to commit rape is an emergency within the meaning of the rule; that the relator was guilty of a violation of its provisions, upon his failure to report the case, and that this court has no power to review the sentence imposed upon him.</p>

On or about March 30, 1880, the plaintiff in this action leased to the defendant certain premises in New York city, for the term of five years, from May 1, 1880, and thereafter on said May 1, 1880, a permission in writing was given the defendant to make alterations on the second floor of the building, and he agreed, if the alterations were made, to restore the premises to the condition they were in at the time of the letting, thirty days before the expiration of the lease.

<p>1. Corporation—Who officers of—False report—Liability of-directors—Laws 1875, chap. 611—What material representations-—Legal advice no defense.</p> <p>By section 18 of the act of 1875, under which the American Opera Company, limited, was organized, that company was required to make a report annually, to be filed in the office of the secretary of state, of the amount of its capital and the proportion thereof actually paid in, and the names of the stockholders, which report was to be signed by the president and a majority of the directors. By section 21 of the act, each officer of the company who signs any such report, is made liable personally for all the debts of the company contracted while he is an officer thereof where the report, so signed by him, is false in a material representation, Neld, (1) that a director of the corporation is an officer within the meaning of the act, and where he signs a report of the company which is false in a material representation, he is liable for all debts contracted by the company whilst he was such officer. (2.) That representations that certain persons were stockholders and had respectively paid in certain amounts, were material representations. (3.) That it will not be a sufficient answer on the part of such director that he signed the report under the instruction of his attorney, and in reliance upon such instructions, believing the matters set forth in the report to be true. Where an act is prohibited by statute, it is no defense that the party acted in good faith, and under legal advice.</p> <p>2. Same—Opera company—Where and under what circumstances PERSON EMPLOYED MAY BE DISCHARGED.</p> <p>Where a judgment was obtained by the plaintiff against a corporation, for damages in not carrying out a contract made by the company with him, and the plaintiff commences suit for the recoveiy of the amount against a director who signed its annual report, under section 21 of the act of 1875, the complaint set forth not only the facts to charge the defendant with the statutory liability, but also the facts upon which the original cause of action was based, viz.: that he had e tered into a contract with the company to sing as a baritone for a period of twenty-five-weeks, at the rate of $100 per week; that after he had performed nine weeks he was discharged; that he was ready and willing to perform the balance of the contract, but was prevented by the company. It appeared that the company claimed the right to discharge him at any time under rule 6, which was part of the contract of employment, and which provided that “In the event either of incompetency, or of such continued illness or decrease of physical or vocal faculties, as to prevent one from d ing service for a period of more than two weeks, the company may in its discretion cancel and annul the contract. * * * The vocal and musical directors shall be the sole judges of the fact and extent of the incompetency, in applying this rule.” It also appeared that plaintiff was discharged by a notice from the general manager of the company in these words: “ Your work is not musically satisfactory to the board.” Held? (1) the plaintiff could only be discharged in accordance with the provisions of the contract, except under such other circumstances as would be sanctioned by law for good cause shown.</p> <p>3. Same—What incompetency under rule six.</p> <p>The incompetency referred to under rule six, is that the incompetency must be such as is produced from physical causes arising after the contract is entered into.</p> <p>4. Same—What not tantamount to a finding of incompetency.</p> <p>But the ground of dismissal of the plaintiff is not “incompetency,” but is that plaintiff is “ not musically satisfactory to the board.” The dissatisfaction of the board is not tantamount to a finding of incompetency by the musical and vocal directors.</p> <p>•5. Same—Rule as to interpretation of contract.</p> <p>Where there is a question raised as to the proper meaning of the contract, the court may, in its interpretation of the contract, reject the grammatical construction, and adopt that which will give effect to the intent of the i orties. It is a rule of law that where the language of a promisor may be understood in more senses than one, it is to be interpreted in the sense in which he had reason to suppose it was understood by the promisee.</p> <p>■S. Same—Damages—What may be recovered.</p> <p>Where a performer is ready and willing to enter upon the duties of his engagement, and is prevented by his employer absolutely repudiating the contract, he is entitled to recover the amount of compensation fixed by the contract of employment for the whole term, not as wages, but as damages.</p> <p>I. Same—Judgment against company—When not conclusive as to existence OF DEBT.</p> <p>That a judgment against the company is neither conclusive nor prima facia evidence of the existence of a debt against the company for the purposes of this action, and the plaintiff is required to establish the debt as a distinct issue in this case.</p> <p>•8. Same—When right to discharge exists.</p> <p>That when a person engages to perform a service requiring the possession of special skill and qualities, there is an implied warranty on his part that he is possessor of the requisites to perform the duties undertaken, and, if found wanting, the right to discharge exists.</p>

<p>The action was brought to recover the damages arising from a breach of contract by defendant, made with plaintiff and one Gill, for the construction of an elevator in the city of New York. The complaint alleges, as a breach, that defendants failed to have the foundations ready for the erection of the elevator, as required by the contract, at the time they were required to commence work for its construction, and claims damages therefor by reason of increased expense, in doing the work and supplying materials, and loss of gain or profits, arising from the delay occasioned by want of readiness on the part of the defendant.</p> <p>Motion by the defendant for re-argument.</p>

The suit is one of twenty which were brought by property owners on North Second street, to recover awards due them by the act of the legislature, passed April 19,1871, ordering the widening of North Second street, from Bushwick avenue to a point between Third and Fourth streets on the . northerly side, and from the East river to a point between Third and Fourth streets, on the southerly side of the street.

<p>Negligence—Evidence—When case properly submitted to jury.</p> <p>Where in an, action brought by .an infant under five years of age for injuries resulting from being run over by one of defendant’s cars, the evidence showed that plaintiff had gone from the court yard before her mother’s house, where she was playing with her mother’s permission, to the other side of the street, and while returning, was run over, she being .accustomed to play in the court yard, Held, that the question as to whether the mother was guilty of negligence in allowing plaintiff to play in the court yard was properly submitted to the jury.</p>

Action of ejectment brought by Morgan Jones and others, as heirs of John Jones, deceased, against Joseph H. Hawes and others, and Adelaide Jones, to recover land held by the defendants, except Adelaide Jones, adversely to plaintiffs. Plaintiffs sued as the heirs of John Jones, deceased, for the benefit of Morgan Jones, to whom the deceased had conveyed the land.

<p>Appeal by purchaser from order directing him to complete purchase.</p>

<p>1. Landlord and tenant—Receipt — When overcome by paroi evidence.</p> <p>The plaintiff and defendant virtually agreed to terminate a certain lease, and the defendant was to pay plaintiff thirty dollars accrued rent. The agreement terminating the lease was then executed and contained this clause: “ Without claims, rents or demands of any kind, or amount of either party against the other.” It is not claimed that the accrued rent has been paid, or that defendant did not agree to pay, but defendant insists that no action can be maintained by reason of the receipt; that it amounts to an accord and satisfaction, and precludes the parties fro' giv-ing any evidence to show the amount of accrued rent, or the manner in which it was to he paid. Held, that in so far as the instrument purports to be a receipt for accrued rents, it is like any other receipt, evidence that the debt has been paid, which is liable to be overcome by paroi evidence; that the fact that no money was paid, or that the sum agreed on had not been paid, may be shown.</p> <p>2. Pleadings—Amendment—Code Crv. Pbo. , § 2944.</p> <p>Under Code Civil Procedure, section 2944, a justice of the peace, has power to allow the pleadings to be amended so as to conform to the proof, where it appears that substantial justice will be promoted thereby.</p>

<p>1. Promissory notes—Statute of limitations—When no defense— Code Oiv. Pro., § 401.</p> <p>The action was on three promissory notes. The defense is the statute of limitations. The notes matured December, 1877, November, 1878, January, 1879, respectively. At the time they matured, defendant was a resident of New York. Thereafter, in October, 1882, he removed to New Jersey, and has resided there ever since. The action was commenced in January, 1888. In June, 1888, section 401 of the Code Civil Procedure, was amended so as to read, “ if after a cause of action has accrued against a person, and he departs from, and resides without the state, and remains continuously absent therefrom for the space of one year or more * * * the time of his absence * * * is not a part of the time limited for the commencement of the action.” While defendant has resided in New Jersey, his place of business has been in New York, and he now claims that the section as amended applies to his case; that the matter of limitation is one of process and remedy, and not of right or obligation, and therefore without the scope of constitutional prohibition respecting the obligation of contracts. Held, that the section should be limited in its operation to the time of the commencement of the action, that it constitutes no defense in defendant’s favor, and that plaintiff is entitled to judgment.</p> <p>8. Statutes—Alteration pending action—Rights of parties.</p> <p>When the law is altered pending an action, the rights of the parties are decided according to the law as it existed when the action was begnn, unless the new statute shows a clear intention to vary such rights.</p> <p>3. Debtor and creditor—Non-resident debtor—When creditor may</p> <p>AWAIT RETURN.</p> <p>Where a creditor learns that his debtor has removed from the jurisdiction of the courts of the state, he is justified in awaiting his return, nor is he called upon to watch him to ascertain whether he comes into the state for a temporary purpose, so long as his residence is elsewhere.</p>

<p>1. Mechanic’s lien—Who can acquire lien—Laws 1885, chap. 342.</p> <p>A person who furnishes a furnace set within a brick structure, together with connecting pipes and appurtenances, can acquire a lien for the labor and service so performed by complying with the requirements of the mechanic’s lien act (Laws 1885, Chap. 343).</p> <p>2. Same—Evidence—Books op account—Declarations in interest.</p> <p>In an action to foreclose a mechanic’s lien one defense was payment, to establish which, defendants rely upon certain entries of payment made by the deceased to whom the materials were furnished, in his account books and upon certain declarations made to one O., a witness, by deceased, to the effect that he had paid plaintiffs. Held, that the entries and declarations are inadmissible in favor of defendants.</p> <p>3. Same—Yerificaton—Sufficiency of.</p> <p>A verification to the. notice of a lien which states: “lam one of the claimants mentioned in the foregoing notice of lien; I have read the said notice and I know the contents thereof; the same is true of my own knowledge, information and belief,” is a substantial compliance with the statute.</p>

<p>Judgment—When not disturbed.</p> <p>Where no error is claimed to have been committed in the admission of evidence, and it cannot be said as a question of law that an error was committed in finding a disputed question of fact against the defendant, the judgment will not be disturbed.</p>

<p>Demurrer to reply as being insufficient in law upon its face.</p>

<p>1. Evidence—Railroad reports—Admissibility or—Code Civ. Pro. § 933—Laws 1884, chap. 421.</p> <p>The report of the railroad commissioners of the state to the legislature, where they are nowhere, and in no wise exemplified as required by Code Civil Procedure, section 933, or by the Laws 1884, chapter 421, are inadmissible in evidence.</p> <p>8. Same—What fact does not supply statutory requirement.</p> <p>The fact that the law requires a report from the commissioners to the legislature, and that they are authorized to distribute copies thereof, does not supply the requirements of the statute with respect to their being received as evidence.</p> <p>3. Same—Objection—When sufficient.</p> <p>An objection to the reception of evidence clearly irrelevant and hearsay, upon the ground that it is “immaterial, irrelevant and incompetent,” is sufficiently specific.</p>

<p>1. Negligence—Personal injuries—Complaint—Sufficiency of.</p> <p>In an action brought to recover damages for personal injuries occasioned by the negligence of defendant, the complaint alleged that while waiting in the depot to take a train, “ it carelessly and negligently ran and propelled one of its cars upon and against the plaintiff, whereby he was injured,” etc. Held, that the complaint states, with sufficient certainty and definiteness, the negligent acts complained of.</p> <p>2. Same—Pleading—What need not be alleged.</p> <p>Circumstances tending to prove the facts need not be alleged, and have no place in a pleading.</p>

<p>1. Contract—Sale oe lease—Fraud—What will justify abandonment OF CONTRACT.</p> <p>The action was brought to recover on several promissory notes given in part for rent of certain premises and in part in renewal of other notes given for the same purpose. The plaintiff and two others who were the owners of the lease of the premises transferred their interest under it, to the defendants, together with the good will of the business and certain fixtures and furniture. The defendants allege fraud; that the representations as to the extent of the business and the amount of property transferred to them were false. After the fraud had been discovered, an arrangement was entered into that if defendants would continue to occupy the premises and carry on the business until the end of the term, the plaintiff would make good the deficiency in the amount of personal property, and what defendants had put in should be paid back to them, and the notes and rent taken care of After the arrangement, defendants continued the business claiming to carry it on for the benefit of plaintiff and the other parties. He Id, that representations of a false and fraudulent character would justify the abandonment of the contract by defendants, and that the arrangement by which defendants were to continue in the business for the benefit of the plaintiff and the other owners was a valid and binding contract.</p> <p>2. Same—Pleading—Counter-claim—Joint debtors.</p> <p>Held, that the defendant W. can avail himself of the defense arising out of the false representations existing in favor of himself and co-defendant, and that plaintiff being one of the original parties to the transaction out of which the cause of action arises, the counter-claim can be set up against his cause of action and made available to the extent of his claim against the defendants.</p> <p>3. Same—Evidence—Fraudulent representations.</p> <p>Idence tending to show that the property represented by plaintiff as belonging to the business in question was not there; that a large part belonged to other parties, of which defendants were ignorant; that the business was not a pacing one, and had not been for a long time, which fact was known to plaintiffs; that the books were changed so as to falsify the names of persons visiting the place as patrons, is sufficient to warrant a finding of fraud in the transfer of the lease and sale of the property.</p> <p>4. Same—Fraud—Ratification.</p> <p>The fact that defendants, after the discovery of the fraud, consented to remain and continue the business until the end of the term to save the plaintiff and the other parties a greater loss, was not such a ratification of the contract after discovering the fraud, as estops defendants from asserting it against the plaintiff’s claim for rent.</p>

<p>Benevolent societies—Beneficiary—Rights of creditors as against.</p> <p>When bv agreement the moneys secured by a beneficiary certificate were made* payable to the beneficiary for the express purpose of paying creditors, the beneficiary is a mere trustee to effectuate that purpose, and has no claim on the fund as against the creditors, for whose benefit the fund was created. - ;</p>

<p>1. New Tbial—Newly discoyebed evidence—When not granted.</p> <p>A motion for a new trial predicated upon the ground of newly-discovered evidence, where the proposed evidence presents no new question, but is simply additional testimony of a like character as that given in the previous trial, presenting more freely the defendant’s side of a collateral issue, should he denied.</p> <p>% Same,</p> <p>It is only evidence that is discovered after the trial for which a party can ask for a new trial and not for evidence of which he knew of its existence, hut was unable to get it.</p> <p>3. Same—Impeaching testimony.</p> <p>A new trial will not be granted on newly-discovered evidence, which tends merely to impeach the credit of a witness.</p>

<p>Amendment—Changing cause oe action—When improperly allowed— Code Civ. Pro., § 723.</p> <p>Where a suit was brought by plaintiff for certain securities; and for an accounting, the complaint alleging that she was induced by fraud to put them in defendant’s hands, the charge of fraud not being sustained by the evidence, plaintiff was allowed to amend her complaint, but no new ground of equitable relief was set up. The court found that defendant had received a certain sum for plaintiff’s use, and gave judgment accordingly. Held, that the amendment “ changing substantially the claim,” from one appealing to a court of equity to one in “assumpsit,” on contract, triable of right by a jury, should not, under section 723, Code of Civil Procedure, have been allowed.</p>