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order of examination be made by service of a copy thereof without the state on plaintiff. Motion granted.

Moss & Feiner, for plaintiff.

Underwood, Van Vorst & Hoyt, for defendants.

TRUAX, J. This is a motion to set aside an order for the examination of the plaintiff in order to enable the defendant, who obtained the order, to prepare his answer.

The papers show that the plaintiff is a resident of Scotland and is not now in this country, and the order directs him to appear before a referee in the city of New York on a certain day to be examined concerning the matters relevant to the issues in this action. The said defendant, upon an affidavit showing that the plaintiff was without this state, obtained an order directing that the service of said order of examination be made by service of a copy thereof without the state upon the said plaintiff. I am of the opinion that both of the above-mentioned orders should be vacated and set aside. It was held in Witcher v. Tribune Ass'n, reported in the Law Journal of May 15, 1890, that the power of the court to order an examination of a party before trial, at the instance of an adverse party, was purely statutory and depended. solely upon the provisions of the Code, and that, therefore, when it appears that the party sought to be examined is a nonresident of the state and cannot be served within the state, the court may decline to make what appears to be a useless order. This case was affirmed by the General Term of the Superior Court in a decision which is reported in 59 Super. Ct. 224, 14 N. Y. Supp. 290. It is true that this case was criticised and not followed in Campbell v. Bauland Co., 41 App. Div. 474, 58 N. Y. Supp. 984, but I prefer to follow the Witcher Case, because I deem its reasoning the sounder. In Farmers' Nat. Bank v. Underwood, 6 App. Div. 373, 39 N. Y. Supp. 596, the court called. attention to the fact that no motion was made to vacate the orders directing the service of the order for the examination upon the person who was to be examined without the state, nor was the question presented as to the power of the court to direct such a service. In Witcher v. Tribune Ass'n (Super. Ct.) 14 N. Y. Supp. 290, the court called attention to the fact that section 873 of the Code of Civil Procedure expressly provided that service of the order for the examination of a party must be made within this state, and that section 886 provided that if the person to be examined is a resident of the state, he shall not be required to attend in any county other than that in which he resides, or where he has an office for the regular transaction of business, in person, and that, if he is not a resident, he shall not be required to attend in any other county than that wherein he is served with a subpœna, unless for special reasons stated in the affidavit the order otherwise directs; and it was there held that there is no power in the court to require the plaintiff, as a resident of another state, to come to New York from such state for the sole purpose of being examined. It was contended on the argument that, if the plaintiff could not be compelled to come into this state to be examined, he would obtain a right that the defendants could not obtain, and that having by bringing the action sub

mitted himself to the jurisdiction of the court he should be compelled to come within the state. The view that I have taken does not prevent the defendants from obtaining an examination of the plaintiff. They can obtain such an examination under sections 887 et seq. of the Code of Civil Procedure. Section 887 provides that any party to the action may be examined on commission.

Motion to dismiss the orders granted, with $10 costs.

(121 App. Div. 507.)

HARBOR & SUBURBAN BLDG. & SAVINGS ASS'N v. WOOD et al. (Supreme Court, Appellate Division, Second Department. October 11, 1907.) 1. BUILDING AND LOAN ASSOCIATIONS-MORTGAGES-FORECLOSURE-DEFENSES. Where a building and loan mortgage was executed by both parties without fraud, and obligated the association to convey the premises to the mortgagors free of all incumbrances, including an underlying mortgage, on the mortgagors' payment of 144 installments of $25.70 each, and the association had fully complied with its contract up to the time suit was brought to foreclose the mortgage because of defendant's default, it was no defense that the association might not be able to complete its contract at the end of 144 payments.

2. SAME-CONTRACT-VALIDITY.

A building and loan mortgage contract by which the association assumed an underlying mortgage, and agreed to convey the property to the mortgagors on their making 144 payments of $25.70 each, which included a premium on the loan, was valid.

Rich, J., dissenting.

Appeal from Special Term, Kings County.

Action by the Harbor & Suburban Building & Savings Association against George T. Wood and others. From a judgment in favor of defendants on a decision of the court at Special Term, plaintiff appeals. Reversed, and new trial granted.

Argued before HIRSCHBERG, P. J., and WOODWARD, HOOKER, GAYNOR, and RICH, JJ.

Alexander S. Bacon, for appellant.

Samuel Leavitt, for respondents Wood.

WOODWARD, J. This action was brought to foreclose a building and loan gross premium mortgage, drawn in the usual form. The defendant Wood and his wife sold the premises to a man named Mittnacht, the latter acting through one Rebecca Fitzgerald, and no payments were made after the sale to Mittnacht. By the terms of this mortgage, as understood by both the plaintiff and defendant, as shown. by the pleadings and by the evidence upon the trial, the plaintiff was to convey the premises to the defendants Wood free and clear of all incumbrances, including an underlying mortgage for $1,800, upon the payment of 144 payments of $25.70 each. There is absolutely no dispute upon this proposition, and there is no question that the defendants. were in default when this action was brought, but the learned court seemed to regard these matters of only incidental importance, and held that, because there was the possibility that the plaintiff might not be able to mature the building loan stock upon the payment of the 144

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payments of $25.70 each, the defendants were in some manner overreached, and gave a judgment in favor of the defendants.

We are unable to understand how this result could be reached consistently with the law. The defendants Wood, who alone contest the foreclosure, entered into the usual contract with the plaintiff for a building loan, to be repaid upon the installment plan. It was specifically agreed that the bond and mortgage should become void and of no effect on the completion of the payments which the defendants agreed to make, and the learned court has found that the plaintiffs fulfilled all of their part of the agreement up to the time of the commencement of the action, and the plaintiffs offered upon the trial to permit of the entry of a judgment in accordance with the language and the understanding of both parties. The learned court refused to find any of the alleged fraudulent matters charged against the plaintiff in the complaint, but, upon the proposition that the plaintiff might not be able to complete its contract at the end of 144 payments, the decree of the court refuses relief to the plaintiff. This issue was not raised by the defendants. All that they claimed was that the loan which they sought was only $2,570.50, and that 144 payments of $25.70 each would exceed this amount, and that as to this they had been deceived. They do not claim that they were not told plainly of the number of payments or of the amount of each, or that they were incapable of making the calculation, or that any advantage was taken of them in the suppression of these facts, but they claim that they did not become members of the association, and that they did not know that they were giving a premium upon the loan. But upon all of these matters the court has found against them, and properly, under the evidence, and it was the court. which discovered and brought into this case the idea that the defendants were not bound by their agreement because of the possibility of the plaintiff not being able to carry out its contract.

A sufficient answer to this would seem to be that the plaintiff had performed all of its promises up to the time of the defendants' default, and there is no presumption that a corporation or an individual will not perform its lawful contracts. There is no evidence in this case that the plaintiff cannot perform its contract, nothing to show that it may not lawfully do so, and with the defendants in default, after a partial performance of the conditions of the contract, we are unable to understand why the plaintiff is not entitled to the relief demanded in the complaint. We take it that the plaintiff had a right to make the contract that was made. It is the same in its essential elements as hundreds of these building loan contracts which have never been challenged, and when both parties agree to their understanding of the contract, and when this understanding is in harmony with the language used, and this contract undertook to place the defendants in full ownership of the premises upon the payment of the stated number of installments, at $25.70 each, we know of no rule of law which permits the court to assume that the plaintiff might not be able to perform its part of the contract some years hence, and to refuse a remedy where the defendants are concededly in default. We think the court erred in this regard, and that the judgment should be reversed.

The judgment appealed from should be reversed, and a new trial granted; costs to abide the final award of costs. All concur, except RICH, J., who dissents.

(121 App. Div. 462.)

BECKWITH v. CITY OF NEW YORK.

(Supreme Court, Appellate Division, Second Department. October 4, 1907.) 1. MUNICIPAL CORPORATIONS-CONTRACTS-CERTIFICATES.

New York City Charter, Laws 1901, p. 50, c. 466, § 149, provides that no contract, the expense of which is not to be paid by assessment, shall be binding unless the comptroller indorses thereon his certificate that there is a fund applicable thereto sufficient to pay the estimated expense of executing the same. Section 419, p. 186, provides that, if the head of a department shall not deem it for the interest of the city to reject all bids, he shall award the contract to the lowest bidder. Held, that where the head of a department, after awarding a contract to the lowest bidder, so that he no longer had power to reject all bids, refused to execute the contract, so that no contract was or could be presented to the comptroller for his certificate, section 149 had no application, and did not prevent recovery for the refusal to execute the contract, applicable to which there were sufficient funds.

2. DAMAGES-REFUSAL TO EXECUTE CONTRACT-PROSPECTIVE PROFITS.

Prospective profits lost, to be ascertained by deducting from the contract price what it would cost to execute the contract, are a proper element of damages for refusal of a city to execute a contract for work properly awarded to the lowest bidder.

[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Damages, § 70.] 3. SAME.

In arriving at the prospective profits lost, by reason of a city refusing to execute a contract to the lowest bidder for furnishing, delivering, aud laying water mains in certain streets, among the items of cost of executing the contract, which are to be deducted from the contract price, are the cost of a bond, the expense of formulating the bid, and the cost of plans.

4. SAME INTEREST ON UNLIQUIDATED DAMAGES.

Interest on the prospective profits is not recoverable as part of the damages for refusal to execute to the lowest bidder the contract for furnishing, delivering, and laying water mains in certain streets, as it cannot be said such profits were ascertainable by mere computation.

[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Damages, § 141.]

Appeal from Trial Term, Kings County.

Action by Clinton Beckwith against the city of New York. From a judgment for plaintiff, and from an order denying a motion for new trial, defendant appeals. Reversed, subject to remittitur.

Argued before JENKS, HOOKER, RICH, MILLER, and GAYNOR, JJ.

Theodore Connoly (Francis Martin, on the brief), for appellant. Edward M. Grout (James F. McKinney, on the brief), for respond

ent.

MILLER, J. The appellant argues that this action, being for breach of contract, cannot be maintained, for the reason that no enforceable contract was made, and that it should have been brought for a failure to make a contract. The argument, to say the least, is not in

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genuous, for the complaint alleges the refusal of the defendant to execute contract which had been awarded to the plaintiff upon competitive bidding after all of the requirements of the statute had been observed. The contract duly awarded as aforesaid was for furnishing, delivering, and laying water mains in certain streets in the borough of Richmond. After it had been duly awarded, and after the plaintiff's sureties had been approved, and after the plaintiff, upon notice to the chief engineer, had placed preliminary orders so as to be in position to execute his contract speedily, as he was required to do by its terms, the commissioner of water supply, gas, and electricity refused to execute the contract, and rejected all bids.

The appellant relies on the following provisions of section 149 of the charter (chapter 466, p. 50, Laws 1901), to wit:

"No contract hereafter made, the expense of the execution of which is not by law or ordinance, in whole or in part, to be paid by assessments upon the property benefited, shall be binding or of any force, unless the comptroller shall indorse thereon his certificate that there remains unexpended and unapplied, as herein provided, a balance of the appropriation or fund applicable thereto, sufficient to pay the estimated expense of executing such contract, as certified by the officer making the same."

Such certificate was never made, for the reason that the contract was never presented to the comptroller for his certificate; said commissioner having rejected the bids after awarding the contract as aforesaid. Section 419 of the charter contains the following provision:

"If a borough president or the head of a department shall not deem it for the interests of the city to reject all bids, he shall, without the consent or approval of any other department or officer of the city government, award the contract to the lowest bidder, unless the board of estimate and apportionment by a three-quarter vote of the whole board, shall determine that it is for the public interest that a bid other than the lowest should be accepted.

It is not claimed that the board of estimate and apportionment so determined, and it is plain that, having awarded the contract, the commissioner had no power to reject all bids. Pennell v. Mayor, 17 App. Div. 455, 45 N. Y. Supp. 229. The commissioner, however, could not be compelled by mandamus to execute the contract for the reason that the plaintiff had a remedy in the present action. People v. Campbell, 72 N. Y. 496. It can be no defense that the comptroller never did what he was prevented from doing by the breach complained of. The plaintiff proved, and it was not disputed, that there were funds, applicable thereto, sufficient to pay the estimated expense of executing the contract, and, but for said wrongful rejection of bids, the comptroller could have been compelled by mandamus to make the certificate in case of a refusal, for his duty was purely ministerial. This case is controlled by the decision in Lynch v. Mayor, 2 App. Div. 213, 37 N. Y. Supp. 798; for, while the appellant seeks to distinguish that case by asserting that the present statute materially differs from the statute in force when the contract involved in that case was awarded, a comparison of said section 149 of the charter and section 123 of the consolidation act (chapter 410, p. 31, Laws 1882) discloses that, so far as the question now under consideration is concerned, there is no