Page images
PDF
EPUB

and 146 New York State Reporter

himself against such a loss as occurred by providing for the contingency in the conveyance. He might have insured his property and limited his rebuilding to the insurance money received. He assumed without restriction a reasonable undertaking. The destruction of the plant rendered it impossible for him to perform. He had but little insurance, and was left penniless. The subscribers, who had raised the money and purchased the site for a specific purpose, were not responsible for the loss. Through no fault on their part there was a failure to carry on the plant, and when that happened Conover's rights terminated and ceased, and the premises reverted ipso facto to the grantor, West, as trustee, who was the one of the committee representing the subscribers in the conveyance to Conover. We appreciate that a forfeiture of a condition subsequent is regarded with disfavor. Conover, however, abandoned his project. He is not vindicating his title, or asserting that he has complied with the covenants which he undertook when he accepted the deed. No one contends that the plant was operated for the 10 years, or that Conover continued the venture after the fire. If we are right in the proposition that Conover was not absolved from his undertaking to carry on the plant for 10 years because of its destruction by fire, then there is no injustice in declaring a forfeiture of the condition. The enforcement of the agreement of the parties compels the decree of forfeiture. "A court of equity cannot control the lawful contracts of parties." 4 Kent's Commentaries (6th Ed.) p. 130.

It is held that in case of a condition subsequent which is impossible of performance at its inception, or is subsequently rendered so by act of God or of the grantor, the estate becomes unconditionally vested in the grantee. 2 Washburn on Real Property (3d Ed.) p. 7; 4 Kent's Commentaries (6th Ed.) p. 130. I have been unable, however, to find any authority for the proposition that the estate vests indefeasibly where the condition was capable of performance at its creation, but performance was subsequently made impossible through no fault or intervention of the grantor, and not by act of God. The interests of the subscribers are to be considered, not wholly those of Conover. They have lost in the project. The dilapidated buildings now left. are not worth more than $500. So at best they cannot be compensated for their contributions. The enterprise which they attempted to foster cannot be fulfilled.

It is claimed that the right of re-entry on forfeiture for breach of condition is lodged in the grantor; and that is the general rule. West, however, was one of the committee. He held as trustee for the benefit of the subscribers, and evidently to obviate the annoyance of obtaining a deed from all the members of the committee. He was not the owner individually. Had he died, the right of re-entry would not have. passed to his heirs at law. When it was inconvenient for him to act further, he conveyed to the other members of the committee. He was simply as a matter of convenience eliminated from representing the subscribers.

The referee in bankruptcy conveyed Conover's interest in the premises to the plaintiffs as trustees, subject to the mortgage of defendants; and it is urged that the grantees, by accepting the conveyance,

succeeded to Conover's rights and were bound to perform the conditions imposed upon him in the deed from West. The transfer, without the explicit declaration, would be subject to the mortgage, if Conover held any interest. The grantees did not assume to pay the mortgage. Nor do I think the acceptance of a referee's deed destroyed the right of re-entry upon the forfeiture of the condition subsequent in the West conveyance. As a matter of precaution, it was prudent for these trustees to obtain the interest of Conover, even though but nominal. If they had been able to obtain a release from the mortgagees, the title would have been effective in the plaintiffs without the expense of an action to obtain a judgment decreeing forfeiture.

The equities of the parties to the suit are not with the mortgagees. They, as trustees and executors, loaned a large sum of trust funds to Conover before the West deed was recorded. They either recklessly did this, without any knowledge of Conover's title, for it wholly depended upon the West deed, or else improvidently turned over these trust funds to Conover, relying upon his ability to carry out the conditions assumed by him, and without any insurance upon the property to indemnify them in the event of loss by fire. The judgment should be affirmed, with costs.

Judgment affirmed, with costs. All concur, except KRUSE, J., who dissents in memorandum, in which ROBSON, J., concurs.

KRUSE, J. (dissenting). The covenant or condition in the deed to Conover required him to remove his canning plant and manufactory, and all buildings, machines, machinery, tools, implements, appliances, apparatus, and fixtures used or kept for use in connection therewith, and erect the same on the lands in controversy; also in good faith to run and operate the same as a canning and preserving factory, or some other manufacturing enterprise upon said premises that will utilize said buildings erected thereon for and during the period of 10 years from August 1, 1901. Conover removed the buildings, erected the same upon the lands, and operated the same until they were substantially destroyed by fire, which occurred before the expiration of the 10-year period. It is not claimed that such destruction was through the fault of Conover, or that there was any insurance on them to make the loss good. I think, under the circumstances, there was no breach, and therefore no forfeiture. I think he was not required to rebuild. Conditions subsequent are not favored, and are strictly construed. Beyond that, I am inclined to the opinion that there are other difficulties in the way of the plaintiffs' right to maintain the action.

I therefore vote for reversal.

and 146 New York State Reporter

CANFIELD v. NEW YORK TRANSP. CO.

(Supreme Court, Appellate Division, First Department. November 6, 1908.) MUNICIPAL CORPORATIONS (8 705*) — STREETS — LIABILITY FOR NEGLIGENCE CARE REQUIRED.

The power of an electric hansom belonging to defendant having become weak, it was towed by another hansom of defendant with a rope about six or seven feet in length. A driver was seated on the high seat in the rear of each machine. At a street crossing an officer in charge of the traffic signaled them to stop, which they did, and plaintiff attempted to pass between the hansoms. The rear driver, seeing her, called out a warning of the rope, which she testified she did not hear, and she was caught by the rope and thrown. Held, that defendant was not negligent.

[Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 705.*]

Appeal from Trial Term.

Action for personal injuries by Delia A. Canfield against the New York Transportation Company. From a judgment for plaintiff for $1,642.29, and an order denying a new trial, defendant appeals. Reversed, and new trial granted.

Argued before PATTERSON, P. J., and MCLAUGHLIN, CLARKE, HOUGHTON, and SCOTT, JJ.

Arthur K. Wing, for appellant.

L. & A. U. Zinke (Louis Zinke, of counsel), for respondent.

CLARKE, J. At about 6:50 p. m. on the evening of December 22, 1905, two electric hansoms owned by the defendant were proceeding north on Broadway. The power in the rear machine had become weak, and it was being towed by means of a rope about an inch to an inch and a half in thickness, and about six or seven feet in length, which connected the two vehicles. A driver was seated on the high seat in the rear of each machine. At Thirty-Fourth street a police officer in charge of the traffic signaled them to stop, and they did stop on the south side of Thirty-Fourth street, and close to the sidewalk on the right-hand side of Broadway.

The plaintiff testified that she was crossing Broadway and Sixth avenue, headed for the corner of Thirty-Fourth street; that she got clear across both sets of tracks; that she saw the first automobile approaching, and that she stood and allowed it to pass; that she looked up and saw another automobile in motion, but suddenly stop; that she looked at the chauffeur; that after the first vehicle had stopped she stood for probably half a minute or a minute to let this vehicle come to a stop; that she looked straight ahead; that she proceeded rapidly, when she was caught by a rope and thrown down; that at no time did she see this rope before she fell; that after she got up she saw the number on the automobile clearly, and had no difficulty in seeing it. The chauffeur on the rear automobile testified that after they had stopped, in response to the order from the police officer, a little south of the crossing, he saw the lady, and shouted, "Hey there! you can't come across here. Look out there, lady! There is a rope there"-and that she

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

came along and fell down. The chauffeur on the first machine testified that he heard the warning given. The plaintiff testified that she did not hear the warning and did not see the rope.

I am unable to discover, upon these facts, upon what a finding of negligence on the part of the defendant can be predicated. When an automobile loses its motive power, it must be moved by the application of some outside power. The ordinary and common way is by attaching it to another vehicle and towing it to the garage. The machines were at rest. The plaintiff swore positively that she stood for not less than half a minute after they stopped. The light was sufficient for her to read the number on the machine. That she did not see any rope may be admitted; but its position between the two machines, under the circumstances, could not be held to be an act of negligence. Nor can I see that the defendant is any more responsible for her act in running into the rope than if she had run into the machine itself. The automobiles were on the street, where they had a right to be. They had been ordered by the police to stop at the place where they then stood. Seeing the plaintiff suddenly try to pass between the vehicles, the only thing that the men in charge could do was to warn her, and this they did. I am of the opinion that the verdict was not warranted by the evidence.

The judgment and order should therefore be reversed, and a new trial granted, with costs to the appellant to abide the event.

PATTERSON, P. J., and McLAUGHLIN and SCOTT, JJ., concur. HOUGHTON, J., concurs as against weight of evidence.

MORRISON et al. v. SLATER et al.

(Supreme Court, Appellate Division, First Department. November 6, 1908.) 1. MORTGAGES (§ 427*)-FORECLOSURE-PARTIES DEFENDANT GUARANTORS.

While guarantors of a mortgage debt were not necessary parties on foreclosure as to the validity of the purchaser's title, they were proper parties, and if they had been made parties a judgment for deficiency might have been taken against them in that action; and the rules of law as to permitting a separate suit against them are as applicable as if they bad been obligors on the mortgage bond itself instead of guarantors. [Ed. Note. For other cases, see Mortgages, Dec. Dig. § 427.*]

2. MORTGAGES (§ 561*) — Foreclosure-DEFICIENCY-SEPARATE SUITS-RIGHT ΤΟ ΜΑΙΝΤΑΙΝ.

Code Civ. Proc. § 1628, providing that while a foreclosure is pending, or after final judgment for plaintiff therein, no other suit shall lie to recover any part of the debt without leave, gives no absolute right to a plaintiff to sue separately, after foreclosure, a guarantor of the mortgage debt, who might have been made a party on foreclosure, and the right should be granted only upon a satisfactory showing.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. § 1610; Dec. Dig. § 561.*]

3. MORTGAGES (§ 561*)-FORECLOSURE-DEFICIENCY-SEPARATE SUITS AGAINST GUARANTORS-RIGHT TO MAINTAIN.

Plaintiffs are not entitled, under Code Civ. Proc. § 1628, to sue guarantors of a mortgage debt for a deficiency on foreclosure, where, so as For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

V

and 146 New York State Reporter

to hasten the matter to a decree, they did not proceed against one of the guarantors in the foreclosure action, where, though another guarantor was made a party, he was expressly informed that no personal claim was made against him, and where no excuse is given for not making the third guarantor a party.

[Ed. Note.—For other cases, see Mortgages, Dec. Dig. § 561.*]

Appeal from Special Term, New York County.

Action by Jacob Morrison and another against Isaac Slater and others. From an order allowing plaintiffs to sue under Code Civ. Proc. § 1628, and to amend, defendants appeal. Reversed and motion denied.

Argued before INGRAHAM,
HOUGHTON, and SCOTT, JJ.

Alexander Rosenthal, for appellants.
Gustavus A. Rogers, for respondents.

MCLAUGHLIN,

CLARKE,

SCOTT, J. Defendants appeal from an order granting leave to plaintiffs to sue them, after foreclosure and sale of mortgaged property, for a deficiency arising upon such sale. The plaintiffs held a mortgage assigned to them by the defendant Frank Slater, to whom it had been given by one Mondshain. Upon the assignment Frank Slater had indorsed a written guaranty of the payment of the mortgage debt, and the defendants Isaac and Joseph Slater had also jointly indorsed thereon a like guaranty. When the foreclosure action was begun, Frank Slater and Isaac Slater were named as defendants. Some difficulty appears to have been found in effecting service upon Frank Slater, although it does not appear very clearly what efforts were made to serve him. At all events he was dropped as a defendant. Isaac Slater was served with a summons and a notice of the object of the action, in which it was stated in precise terms that no personal claim was made against him. He served a notice of appearance, but took no further steps in the cause. Joseph Slater was neither named as a defendant nor served with process. The action proceeded to foreclosure and sale, resulting in a deficiency of $4,641.72 on a $6,000 mortgage. For this sum the plaintiffs now seek to sue the Slaters, and the order appealed from permits them to do so. Code Civ. Proc. § 1628.

It is urged on behalf of the respondents that the guarantors of the debt were not necessary parties to the foreclosure action. This is undoubtedly true in a certain sense, because the title of the purchaser upon the sale would not be affected by their absence. There is no doubt, however, that they would have been proper parties, and that, if they had been made parties, a judgment for deficiency might have been taken against them in that action. Robert v. Kidansky, 111 App. Div. 475, 97 N. Y. Supp. 913. Hence the rules of law as to permitting a separate action to be brought against them are precisely as applicable as if they had been obligors on the bond itself, instead of guarantors. It has been universally held that section 1628 of the Code of Civil Procedure confers no absolute right upon a plaintiff to sue separately, after foreclosure, a person liable for the mortgage debt, and who might For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

« PreviousContinue »