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2. SAME-KEEPING OF DYNAMITE.

The keeping of dynamite by a contractor engaged in widening railroad tracks along the line of work for immediate use is not within an ordinance making it unlawful to have or keep dynamite in any place except in magazines erected for the purpose according to plans approved by the fire commissioners and under a license from the mayor.

[Ed. Note.-For cases in point, see Cep. Dig. vol. 23, Explosives, 88 4, 5.) Appeal from Westchester County Court.

Action by Hattie Hall against the New York, New Haven & Hartford Railroad Company and another to recover damages from a nuisance. Judgment for plaintiff, and defendant railroad appeals. Reversed, and a new trial ordered.

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

Gustav R. Hamburger, for appellants.
William A. Walsh, for respondent.

GAYNOR, J. The widening of the appellant's railroad tracks in the City of Mount Vernon was being done by a contractor under a written contract with the appellant. Rock had to be blasted in the work by the contractor. The contractor used dynamite for this purpose. One hundred and five pounds of it in a box at a point on the work exploded, and the shock injured the plaintiff in her house nearby. She brought this action for damages against both the contractor and the railroad company (the appellant), and got a verdict of $500 against both. There is no evidence that the appellant had anything to do with the dynamite. It was brought on the work for necessary use by the contractor. The cause of the explosion is unknown. The learned trial judge also erred in his charge in respect of the city ordinance. In sum and substance it makes it unlawful “to have or keep” dynamite, or other explosives named, in any place in the city, except in magazines erected for the purpose according to plans approved by the fire commissioners and under a license from the mayor. The “storing” of such explosives except under such a license is subjected to a penalty. The refusal of the learned trial judge to charge that this ordinance did not apply to the case was error. It only applies to the storing of explosives to be taken out and used elsewhere, and not to explosives along the line of work for immediate use, as was the case here.

The judgment should be reversed.

Judginent and order of the County Court of Westchester county reversed and new trial ordered; costs to abide the event. All concur. HIRSCHBERG, P. J., concurs on first grounds stated in opinion.

(121 App. Div. 483.)

BERGER V. CRIST. (Supreme Court, Appellate Division, Second Department. October 4, 1907.) 1. VENDOR AND PURCHASER-CONTRACTS-DEFECTS IN TITLE-RECOVERY

PURCHASE PRICE.

A purchaser of real estate may, on the failure of the vendor to cure defects in the title, because of the insufficiency of an acknowledgment to a deed because of the nonpayment of taxes, and because a mortgage

OF

and 140 New York State Reporter cannot be paid off as the contract requires, rescind and recover back the money paid.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 48, Vendor and Pur

chaser, $$ 199, 200.] 2. SAME.

A defect in a title because of unpaid taxes is not cured by deducting the amount thereof from the price, but the purchaser may rescind and recover the money paid.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, $ 271.] Appeal from Municipal Court of New York. Action by David Berger against Henrietta Crist. From a judgment of dismissal after a trial before a justice without a jury, plaintiff appeals. Reversed.

The action was to recover $300 paid by the plaintiff to the defendant on a contract of purchase of real estate.

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

Adolph Feldblum, for appellant.
John A. Warren, for respondent.

GAYNOR, J. The judgment should have been for the plaintiff. The parties met on the contract day, and according to the oral testimony for the defendant at least two objections to the title were made by the plaintiff, viz., that there was a valid judgment lien against the property, and an insufficient acknowledgment to one of the deeds of conveyance in the defendant's chain of title. That these objections were sufficient was not disputed. The defendant took an adjournment of three days to remove the defects. On the adjourned day she had not done so. She took another adjournment of a week for the same purpose. On that adjourned day she had not obtained a sufficient acknowledgment instead of the invalid one, but had obtained a suspension on appeal of the judgment lien. The plaintiff refused another adjournment and demanded back his deposit. The Justice decided against him on the ground that he had not demanded performance.

No such technical point was made by the defendant on the trial; and moreover the evidence is that he did make due demand.

According to the testimony of the plaintiff, and the stipulation in writing of the facts which the parties entered into on the rejection of the title, the plaintiff on the contract day also made two other objections, viz., that the taxes were unpaid, and that the mortgage on the property could not be paid off at any time as the contract required. These defects were not cured. It is a mistake to suppose that it suffices to deduct the amount of the taxes from the purchase money and leave the trouble of paying the taxes to the purchaser.

The judgment should be reversed.

Judgment of the Municipal Court reversed, and new trial ordered; costs to abide the event. All concur.

(121 App. Div. 481.)

NEMROW et al. v. ASSEMBLY CATERING & SUPPLY CO. (Supreme Court, Appellate Division, Second Department. October 4, 1907.) LANDLORD AND TENANT-BREACH OF COVENANT BY LANDLORD-MEASURE OF

DAMAGES.

The measure of damages for breach of an agreement by a landlord to properly heat premises leased for a restaurant, and supply sufficient hot water and steam for cooking purposes, is the falling off in receipts, less

the value of any food that can be thereafter used. Appeal from Municipal Court of New York.

Action by Josef Nemrow and others against the Assembly Catering & Supply Company. Judgment for defendant, and plaintiffs appeal. Reversed, and new trial ordered.

The action was for damages for breach of contract. The defendant leased part of a building to the plaintiffs to be used as a restaurant. The lease contained an agreement by the landlord to properly heat the demised premises and to supply sufficient hot water and steam for cooking purposes. This agreement was broken on two days. The plaintiffs proved that the coal supply became exhausted ; that the place was so cold that persons who came there to eat would not stay; that the food which had been prepared and cooked on the range could not be kept warm for lack of steam to beat the apparatus used for that purpose, and warm food could not be served for that reason; that customers refused to order or ordered food and left it without paying for it; that the usual daily receipts fell off on the said two days about $80 a day; that the food thus prepared and not used was a total loss, as the portions could not be used next day. Evidence that the falling off persisted for a day or two was excluded. The defendant proved that the profit was 60 per cent. of the receipts.

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

R. M. Cahoone, for appellants.
Charles S, Carrington, for respondent.

GAYNOR, J. The justice gave judgment for the defendant on the ground that "there is no proper proof in this case as to damages.” The notion seems to have been that the measure of damages was the difference between the rental value of the place with and without the agreement for heat, hot water and steam being kept. If this were so, the evidence of falling off of customers and receipts was competent to show a decline in rental or usable value and the extent of it according to the case of Reisert v. City of New York, 174 N. Y. 196, 66 N. E. 731. But the measure of damages was the falling off in receipts, less the value of any food of the day that could be used thereafter. The net profit is not the measure of damages, for all of the expenses of the plaintiff, which had to be paid out of the receipts, went on, and they might exceed the net profit. The rule of the seed cases is applicable. The crop failing, the expense of labor and money put into it has to be included in figuring up the damage, as well as the net profit. White v. Miller, 71 N. Y. 118, 27 Am. Rep. 13. The rule that the measure of damages for breaches of contract includes gains prevented and losses sustained has not been affected by the decision in Witherbee v. Meyer, 155 N. Y. 446, 50 N. E. 58. That decision only reiterates the limita

and 140 New York State Reporter tions of the rule, i. e., the damages must be such as may be made reasonably certain by evidence, and must have been in the contemplation of the parties in making the contract.

The judgment should be reversed. Judgment of the Municipal Court reversed, and new trial ordered ; costs to abide the event. All concur.

(121 App. Div. 478.)

PEOPLE ex rel. CATTERMOLE V. BENSEL, Commissioner, etc. (Supreme Court, Appellate Division, Second Department. October 4, 1907.) MUNICIPAL CORPORATIONS — EMPLOYÉS – REMOVAL – RESTRICTIONS IN CIVIL

SERVICE LAWS-WAIVER.

Where a veteran fireman in the service of the department of docks and ferries of the city of New York was summoned before the commissioner, and informed that charges had been preferred against him for disobeying written orders, and he was thereupon given a hearing, and his testimony reduced to writing, and he was discharged for the cause stated, without his claiming the protection of a hearing upon notice and formal charges, as provided by section 21 of the civil service law (Laws 1899, p. 809, c. 370, as amended by Laws 1902, p. 805, c. 270), until three months later, he waived his rights under the law.

Hooker, J., dissenting.
Appeal from Special Term, Richmond County.

Action by the people of the state of New York, on the relation of Henry M. Cattermole, against John A. Bensel, as commissioner, etc. From an order directing the issue of a writ of mandamus to compel the reinstatement of relator, defendant appeals. Reversed, and writ dismissed.

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

James D. Bell, for appellant.

George M. Pinney, Jr. (Warren C. Van Slyke, on the brief), for respondent.

MILLER, J. The relator asserts that he was discharged from a position in the service of the department of docks and ferries of the city of New York without a hearing upon due notice upon stated charges which he claims he was entitled to, pursuant to section 21 of the civil service law (Laws 1899, p. 809, c. 370, as amended by Laws 1902, p. 805, c. 270), by reason of the fact that he was a veteran fireman. The appeal is from a final order directing that a peremptory writ of mandamus issue to compei the reinstatement of the relator made after a trial. The appellant asserts that the relator failed to prove that he had served a term required by law in the volunteer fire department in any city, town, or village of this state, within the meaning of said section 21, and that, in any event, he waived his right to insist upon formal charges. We shall not consider the first question, as we are persuaded that the appellant must succeed upon his claim of waiver.

It appeared that the relator was summoned before the commissioner, and informed that charges had been preferred against him for diso

bedience to written orders and instructions; that thereupon he was given a hearing, his examination was reduced to writing, and he was informed by the commissioner that he should discharge him for neglecting to carry out written instructions, whereupon he was discharged. He did not claim the protection of said section 21 until three months after his discharge, and he now says that he did not find out until the lapse of said three months that he was a veteran fireman. Had he asserted the fact, the commissioner would undoubtedly have put the verbal charges into writing, and after due notice would have proceeded with a hearing which would have terminated precisely as the informal hearing terminated. Adequate reason for removal was disclosed by the examination of the relator, and he may have thought that his case would not be improved by a hearing on formal charges. But, whatever his reason may have been, the time to assert the right was when he knew the commissioner was proceeding with an examination for the purpose of determining whether he would remove him. He could relinquish the right to formal charges, and his silence at such a time constituted such relinquishment. People ex rel. Brady v. Brookfield, 6 App. Div. 445, 39 N. Y. Supp. 677. The case of Stutzbach v. Coler, 168 N. Y. 416, 61 N. E. 697, is not in point, because the removal of the relator in that case was consummated before he had any notice of it. He was given no opportunity to claim the protection of the statute, while in the case at bar an informal hearing was had, and, if the relator desired it to be more formal, he should have claimed the right then. His excuse for not doing so, to the effect that he did not discover until three months afterwards, a fact which, if it were a fact, must have been within his knowledge at the time, does not satisfy us.

The order should be reversed.

Order reversed, with $50 costs and disbursements, and writ dismissed. All concur, except HOOKER, J., who dissents.

(121 App. Div. 470.)

In re THOMPSON'S WILL,

(Supreme Court, Appellate Division, Second Department. October 4, 1907.) 1. WILLS-EXECUTION-UNDUE INFLUENCE-EVIDENCE.

The mere fact that the draftsman of a will is made executor or trustee does not raise any presumption that he practiced undue influence on tes

tator. 2. SAME-CONTEST-SUFFICIENCY OF EVIDENCE.

Evidence examined, and held insufficient to show that the execution of a will was obtained by undue influence.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, 88 421-437.)

Appeal from Surrogate's Court, Kings County.

In the matter of the probate of the last will and testament of Edwin E. Thompson, deceased. From a decree (100 N. Y. Supp. 492) denying probate, proponent appeals. Reversed.

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

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