Volume 39 — New York State Reporter

Suit in equity to enforce covenant against owner and occupant of adjoining premises by restraining a business said to be injurious and offensive to the neighboring inhabitants.

<p>Appeal—Review—Excessive verdict.</p> <p>The issue whether a pipe delivered was the pipe which the defendant had agreed to buy and the plaintiff to sell was submitted to the jury on three different theories, without exception to the charge, and no request to charge otherwise. Held, that the jury having found a verdict in accordance with one of the theories submitted, it is not open to the objection that it is excessive, and will not be disturbed.</p>

<p>Partnership—Accounting—Production of books.</p> <p>In an action brought for an accounting of an alleged partnership already dissolved by the death of one of the partners, the defendant having been already examined as a party before trial, and having fully denied the partnership, Held, that no competent evidence having been adduced that his books contained entries establishing the existence of the copartnership, a motion for their inspection was properly denied.</p>

Appeal by defendants from a judgment entered upon findings and conclusions made at special term. Action to restrain defendants from maintaining and operating their elevated railroad in front of plaintiff’s premises and to recover past damages for the same. Truax, J:, on the trial found the following facts: • “ Third.

This appeal is from a judgment rendered at the equity term of the court after a trial of the issues. The action was brought to enjoin the continuance of the defendants’ elevated railroad in front of the plaintiff’s premises on Sixth avenue, in this city.

<p>1. Equity trial—Requests to find.</p> <p>It is not necessary, under § 1023 of the Code of Civil Procedure, where numerous proposed findings of fact and conclusions of law are submitted, that the court note his ruling in the margin of each request; all that is necessary is that the record show that the court did pass on all the requests submitted to him.</p> <p>2. Evidence—Review—Harmless error in equity trial.</p> <p>Where, on a trial by the court alone, the objections to evidence do not sufficiently point out the error to enable the appellant to raise the point intended, and abundant evidence on the same subject of an unobjectionable character was given, the judgment will be sustained on appeal.</p>

Appeal by defendant from an order denying defendant’s motion, at the trial term, to postpone the trial, from an order denying defendant’s motion to open the default and inquest taken and from an order denying defendant’s motion for a re-argument of the last motion.

Action brought to recover the penalty prescribed by chapter 185 of the Laws of 1857, for charging more than the legal fare. The following opinion was delivered by Freedman, J., in denying defendant’s motion: “ This is a motion to set aside the service of the summons in this action.. The motion is made on two grounds.

<p>Loira account—Reference.</p> <p>Where the trial of an action involves the taking of a long account, and an objection to the order of reference is made upon the ground that the account of defendants, if long, was such as would be taken under a counterclaim, it will be disregarded when the answer pleads as a defense what it pleads as a counterclaim, also.</p>

<p>Railroad—Elevated—Adjoining premises—Damages—Benefits.</p> <p>In an action to enjoin an elevated railroad company from running their road in front of plaintiff’s premises and for damages, the defendants alleged special and peculiar benefits conferred on plaintiff’s premises by reason of its station being at the corner by the premises; it was sustained only by the opinion of a single witness, and opposed by the plaintiff, who testified that his trade was not increased thereby. Meld, that the court properly refused to find that a benefit had been conferred on the premises by the railroad station.</p>

<p>Injunction—Contract for services.</p> <p>By a written contract defendant agreed to appear in the soprano roles of » plaintiff's operas during the seasons of 1887-89, in such cities as he might select, plaintiff to supply the costumes; season to last eight or ten months, with the right to terminate it on two weeks’ notice by plaintiff; defendant to receive $800 per week. Plaintiff, relying upon his contract, announced the defendant, at a large expense, in the papers as a member of his company until end of the season of 1889. Defendant refused to perform in plaintiff’s opera in New York in 1889. because the contract was inequitable and because plaintiff had refused to substitute a more healthful costume for the tights in which she appeared in a certain opera. It appeared that such costume was necessary, not unhealthful, and that the plaintiff had a right to prescribe the costume, and that defendant had not objected until another engagement was offered her. Meld, that plaintiff was entitled to an injunction restraining defendant from appearing as a singer in any opera company than his own, during the period of her contract with him.</p>

<p>Hew tbial—Interruption of counsel by the coubt.</p> <p>When plaintiff’s counsel is engaged in making his closing address to the jury, and the court suddenly requests him to abridge, and he is disconcerted, makes a iew halting remarks, and, overlooking important facts he had intended calling attention to, closes, Held, that a new trial would he granted.</p>

<p>Pleading—Answer—Counterclaim.</p> <p>In an action for work and materials furnished defendant at an agreed price, the answer admitted that plaintiff did the work and furnished the materials, but alleged as a counterclaim that plaintiff agreed to do the work in a workmanlike manner and to furnish suitable material, but that he had not done so, to defendant’s damage of $200. On the trial the court held that defendant could not make proof of the counterclaim, inasmuch as it was a claim for damages arising out of the same transaction alleged in the complaint, and that no denial of the allegation of the complaint was made by the answer, and that therefore the cause of action was admitted under § 523, Code Civ. Pro. Held, that the verdict of the jury would be set aside, and a new trial granted, as a material allegation of the complaint was denied by the answer.</p>

<p>Pleading—Frivolous answer.</p> <p>In an action on a note, the answer did not deny any of the allegations of the complaint, but alleged that plaintiff ought not to maintain the action as to the claim for protest fees, as the defendant was the maker of the note. Held, that the answer raised no issue of fact, and was not the proper mode of raising the question of protest fees, and that judgment would be given plaintiff for the amount claimed, less the protest fees.</p>

<p>1. Pleading—Amended answer—When stricken out.</p> <p>The payee of a note brought an action against the maker, alleging that the note was due and unpaid. The answer did not deny the making of the note, but alleged that plaintiff delivered to defendant a quantity of cider which was not to be paid for until sold, and that until then the title was to remain in the plaintiff; that it had not been sold, and that there was nothing due plaintiff on the note, as it was delivered to him as an accommodation, and was not to be paid unless the cider was sold. Defendant served an amended answer, in substance the same as the original, except that it alleges, by way of set-off or recoupment, that owing to plaintiff's delay in refusing to take back the eider he has become indebted to defendant, by way of storage, in the sum of sixty dollars. Held, that no new cause of action was set up by the amended answer, and that the counterclaim could not be maintained as a matter of law, and that it wras for the purpose of delay, and would be stricken out under § 538 of the Code Civ. Pro,</p> <p>3. Contract—Goods on sale—When seller liable for storage.</p> <p>In a contract, where the property is to remain with the prospective buyer until such time as he shall sell it before he is liable to pay, and in the meantime the title remaining in the seller, the seller is entitled to a reasonable time after notice to remove his property before there is any liability to the purchaser for storage.</p>

<p>Eminent domain—Commissioners—Power over their proceedings by COURT OF LOCAL JURISDICTION.</p> <p>Article 1, § 7, of the State Constitution, provides that "when private property shall he taken for any public use, the compensation to be made therefor * * * shall he ascertained by a jury or by not less than three commissioners appointed by a court of record, as shall he prescribed by law.” Where an act of the legislature provided for the taking of lands in the town of West Seneca, fora public park for the city of Buffalo, and for the appointment of three commissioners by the superior court of Buffalo, a court of local jurisdiction, Meld, that the constitutional power to appoint such commissioners necessarily included such power and jurisdiction over their proceedings as may be prescribed by the act authorizing their creation.</p>

<p>Action brought to vacate and set aside a judgment obtained by confession and for the appointment of a receiver.</p>

<p>Indictment—Several degrees oe crime charned—Construction.</p> <p>In an indictment, the first count charged the defendant with burglary-in the third degree, alleging that the offense was committed on a certain day, by entering a building in which was kept certain property belonging to B, with intent, feloniously, to take, steal and carry away such property. The second count charged the defendant with the commission of petit larceny, committed on the day and in the year aforesaid, with intent to defraud the true owner, took certain articles of personal property belong to B. The third count alleged the receiving of precisely similar property, knowing it to be stolen from B. Held, that the offenses alleged related to one and the same transaction, and were intended to charge but one offense.</p>

<p>Negligence—Evidence—When new trial granted.</p> <p>Where the evidence clearly shows that in the accident, for which damages are Claimed, there was no negligence on the part of the defendant, and the plaintiff -did not act as an ordinarily prudent person would under like circumstances, a verdict for plaintiff will he set aside.</p>

<p>Demurrer to an indictment charging defendants with conspiracy to cheat and defraud.</p>

Motion by defendant for a new trial made on the minutes of the court, and to vacate and set aside the verdict of a jury in favor of plaintiff.

Action brought to vacate ancl set aside an assessment. Plaintiffs are the owners of • adjoining lands, fronting on High street in the city of Buffalo, being eighty-eight feet front by 245 feet deep, fifty-eight feet of which is owned by Reinhardt; the; balance by Lindeman. Proceedings were instituted by defendant1 for the purpose of opening a street between High and Best streets, sixty feet in width.

This action is brought to determine conflicting claims to a fund paid into court by the Masonic Life Association of Western Mew York, a mutual benefit corporation existing under the laws of Mew York, the same having accrued under and by virtue of an assurance upon the life of Adam Fleeman, deceased. The said corporation was originally made party defendant, when, upon motionj defendant, as the party in interest, was ordered interpleaded.

<p>Practice—Striking cause from equity calendar</p> <p>In an action for an injunction against an elevated railway company continuing to use the easements of light, air and access appurtent to plaintiff’s premises and for damages, it appeared that theretofore plaintiff had conveyed the premisos in question by a deed which reserved to him all damages suffered or to be suffered to the property from the infringement of the easement by defendants. Held, that the cause was properly stricken from the equity calendar upon defendants’ motion, as the only objection made to it was that the right to atrial by jury had been waived by defendants, they knowing of the existence of the deed, and this being denied.</p>

<p>Appeal—Cannot eaise objection not made below.</p> <p>During the pendency of an action for an injunction against maintaining an elevated railroad and for damages, plaintiff conveyed to the present plaintiff the property in the action, and it was ordered that she he substituted as plaintiff and that so much of the cause of action alleged in the complaint as is for equitable relief continue in the name of fhe substituted plaintiff, upon condition that within forty days she serve a supplemental complaint setting up the equitable cause of action for which action was brought. It was served, but did not set up the equitable cause of action, but alleged an original cause of action in her favor that had accrued upon the conveyance of the property to her being made. The issues were tried without objection, and judgment ordered for plaintiff in a case that supported the supplemental complaint. Held, that no objection being made prior to or on the trial that the supplemental complaint alleged a cause of ' action which accrued after the action was begun, it could not be raised on the appeal.</p>

<p>Master and servant—Evidence—Negligence—Defective machinery.</p> <p>■ In an action brought against a railroad company for personal injuries sustained by a brakeman while in their employ, at the trial defendant offered no proof and the case was submitted on the evidence adduced by-plaintiff to show that the injuries were sustained in consequence of a defect in the brake which plaintiff had to work, and that it might have been discovered by the exercise of ordinary care and diligence on the part of defendant. Held, that from the evidence submitted the jury had a right to find for plaintiff, and that the verdict would not be disturbed.</p>

<p>Appeal from an order denying defendant’s motion for a bill of particulars of plaintiff’s claim.</p>

<p>Appeal—Verdict supported by evidence.</p> <p>A jury is not bound by the number of witnesses, but has the right to determine the questions submitted to them, according to the facts and circumstances established by the testimony which they believe, and where a verdict is supported by the evidence it will not be disturbed, though the other party produced the greater number of witnesses.</p>

<p>Conversion—Estoppel.</p> <p>W. loaned money held in trust by him to W. &Go., D.’s employers, and induced the latter to execute in blank a deed of his property, promising him that it should not be recorded, but that he simply wanted to hold it to show to his co-trustees and beneficiaries for the money loaned. W. afterwards inserted the name of a grantee by whom the property was conveyed for value to S. In an action by D. for conversion, it appeared that at W.'s request, before the conveyance to S., he had endeavored to find a purchaser, and that he afterwards accepted §1,000 to give possession of the deed to S. Held, that he was estopped from claiming that the sale to S. was a conversion.</p>

<p>Injunction—Eminent domain.</p> <p>An elevated railroad company will be enjoined from constructing an additional track in front of plaintiff’s premises, under article 1, § 6 of the state constitution, which provides that no one shall be deprived of his property without due process of law, and that private property shall not be taken for public use without just compensation, unless it has acquired the right so to do by condemnation proceedings.</p>

<p>Railroad—Negligence—Instruction to jury.</p> <p>In an action brought to recover damages from a railroad company for injuries claimed to have been sustained by plaintiff by reason of the negligence of defendants, it was not error for the trial judge to refuse defendants’ request to charge “that there is no evidence in this case which shows to a reasonable certainty that the condition of the plaintiff's body, as testified to by Dr. O., was caused by the accident,” and charging instead, “ It is for you to determine from the evidence whether they were or were not caused by this accident.”</p>

<p>Bailboad—Elevated—Injunctive belief—Past damages.</p> <p>In an action against an elevated railroad for an injunction and for past damages, the right of the plaintiff to recover his past damages cannot be defeated by proof that during the pendency of the action the defendants had instituted condemnation proceedings, had the value of plaintiff’s easements appraised and had paid the award.</p>

<p>1. Municipal corporations—Whether power to remove includes POWER TO SUSPEND.</p> <p>PlaintiS was appointed in 1886 a clerk in the Department of Public Works of the City of Hew York. He served until 1887, when he was suspended from his position by a written communication from the commissioner then in office. From that day he has not been allowed to render any service, although he applied repeatedly to he allowed to return to work. In an action to recover salary claimed to be due, Reid, that the power to remove or expel does not necessarily include the power to suspend, and the latter power may not be implied from the mere grant of the former, and in this case such power did not exist.</p> <p>2. Same—Money earned in other work, by officer unlawfully suspended, NOT TO BE DEDUCTED PROM SALARY.</p> <p>Where an officer, entitled by law to a fixed annual salary, has been prevented for a time, through no fault of his own, from performing the duties of his office, and has during that time earned wages in another employment, he cannot be compelled, in an action to recover his unpaid salary, to deduct the amount so earned.</p>

<p>Appeal from the municipal court of Buffalo.</p>

. YThen the action was brought Henry Zink was joined as defendant ; he having died, the action was continued against the present defendant as survivor.

<p>Appeal from municipal court.</p> <p>The court granted a nonsuit as to one defendant, and rendered judgment against the other, who appeals.</p>

<p>1. Corporation—Complaint in action against—Demurrer.</p> <p>In an action on a judgment against a domestic corporation, the complaint united two causes of action, the sequestration of the property of the corporation, and that the defendants, as stockholders of the company, be charged individually with the payment of the judgment. Held, that the two causes of action were properly united.</p> <p>2. Same—Limitation op action—Must be pleaded.</p> <p>The fact that such action was not brought against the defendant corporation within one year, as provided in Laws 1884 ch. 40, § 24, is matter which the defendant must plead in his answer. It is not necessary for the complaint to negative the defense.</p> <p>:3. Same—Sufficiency op allegation of complaint.</p> <p>Plaintiff alleged in his complaint “that as plaintiff is informed and verily believes, only a small portion of said stock has been paid off.” Held, a sufficient allegation that the capital stock of the corporation had not been paid off in full, within §§ 481 and 524 of the Code of Civil Procedure.</p> <p>4. Same—One creditor may bring action.</p> <p>Such an action may be maintained by one creditor of the corporation without joining other creditors as parties plaintiff or stating that it is for their benefit, under §§ 1784 and 1793 of the Code of Civil Procedure.</p> <p>5. Same—Action on judgment—Allegations of complaint.</p> <p>In such an action it is not necessary to state in the complaint the facts upon which the judgment was obtained, showing that at the time of the commencement of the action plaintiff had a cause of action against the corporation.</p>

<p>Eminent domain—Declarations of common council, as to intended use OF PROPERTY CONDEMNED, CONCLUSIVE.</p> <p>A proceeding by the common council, in conformity with the provisions of the' city charter, for the purpose of acquiring the fee of one of the streets of the municipality, wherein it was stated and declared that the lands were to be taken “in fee for public streets,” is conclusive upon the courts that the land is to be used as declared, and owners will not be allowed upon the application for appraisers to introduce evidence to show that the common council intended to acquire title for the benefit of a railroad, etc.</p> <p>(Hatch, J., dissenting.)</p>

<p>1. Brokers—Sales op land on commission—When entitled to commissions.</p> <p>The question whether a real estate broker is entitled to commissions turns on the inquiry whether the things he has done, while his agency continues, have brought forth a party able, willing and ready to accept the owner’s offer of sale.</p> <p>2. Same.</p> <p>The owner offered to sell the property for $10,000 cash the next morning, and the broker produed a customer who would and could raise the money within thirty days. Held, that the broker had not produced a customer able and ready to accept the owner’s offer, and was not entitled to commissions.</p>

<p>Pleading—Ambiguous.</p> <p>After a party has acted upon a certain construction of an ambiguous pleading, which construction it bears as well as the opposite meaning, the party framing the pleading should not have the advantage of a construction which would defeat the opposite party.</p>

<p>New trial.</p> <p>A party is entitled to a full and fair hearing before the jury; and when that right has been denied him by some word or act of the trial judge, although without intending to prejudice his rights in the minds of the-jury, it is not an abuse of discretion to correct it by granting a new trial.</p>

<p>Ejectment—Examination op plaintiff as to title—When pkofee.</p> <p>Where, in an action of ejectment, the complaint does not disclose how the plaintiff became the owner, and the defendant, after diligent search and inquiry, is unable to form any idea of the theory, pretense or claim upon which the former sets up a right to the land, an order for an examination of the plaintiff as to the source and character of the title to the lands mentioned in the complaint, is proper and will not be set aside on appeal.</p>

Sub Mission of controversy without action under § 1279, Code Civ. Pro. The question involved is the same as in the case of People v. N. Y., Chicago & St. Louis R. R. Co., ante. On March 27, 1887, the defendant corporation was formed by the consolidation of the Troy & Boston R R Co and The Fitchburg R R Co., the latter a foreign corporation organized under the laws of the state of Massachusetts.

<p>Negligence—Hospitals.</p> <p>Plaintiff was operated upon at the hospital of defendant, a charitable corporation, for a disease of the eye, and the doctor directed him to keep on the bandage all night, which he did, although it hurt him very much, and in the morning the sight was gone from the eye. Held,, that a case of negligence could not bé made out from this fact alone; that to render defendant liable it must appear that it did not give due care to the selection of its employes, surgeons and others.</p>

<p>Mandamus-Veterans.</p> <p>On application for a writ of mandamus to compel the reinstatement of relator, the moving affidavit stated that he claimed his rights as a veteran, which were not regarded. The answering affidavits showed that he gave no notice of his rights until the commencement of legal proceedings, some months later. Feld, that an issue was thereby created which prevented the issue of a peremptory mandamus.</p>

<p>Assignment fob creditors—Distribution—Liability of assignee.</p> <p>Shortly after the execution of an assignment for creditors a composition agreement was executed by which the unpreferred creditors took a percentage of their claims, and the assignee sold certain of the assets and received a portion of the purchase price which he applied to the payment of the unpreferred creditors under the agreement. The purchasers failed to complete the purchase, and the property was not delivered. Held, that the assignee in paying the unpreferred creditors before the balance of the purchase price was paid did so at his own risk, and must account for said sum as assets.</p>

<p>Decedent’s estates—Claims against.</p> <p>Four years before her death decedent sent for claimant and asked him to move into her house, saying she could not afford to run it or to board out. He did so and took the place and boarded her and paid the taxes at her request. Held, that he was entitled to be repaid for the taxes and board, less a fair rent for the premises or such part thereof as he occupied.</p>

<p>Appeal from order denying motion to correct a printed case on appeal.</p>

<p>Refebence—Incapacity of befebee.</p> <p>The report of a referee will not be set aside on the ground that his intellect was impaired when he signed the same, in a case where he died six days after making it from heart disease, where it appears that he personally attended to business as usual up to two days before his death.</p>

<p>Mortgage—Payment—Evidence.</p> <p>Defendants gave a mortgage on two pieces of real estate, and "subsequently conveyed one of them to plaintiff’s wife, the deed stating that it was subject to said mortgage, “or so much of said mortgage as may not be otherwise satisfied; that is to say, by other property described in said mortgage mentioned.” Plaintiff conducted the negotiations for the deed. The mortgage was subsequently assigned to him, after said piece was released therefrom. In an action "to foreclose said mortgage, Held, that evidence to show that the mortgage was allowed as a part payment of the consideration of the deed was admissible, as it tended to prove payment of the mortgage.</p>