and 140 New York State Reporter Held to state no cause of action for failing to show that performance was not impossible because of the bad reputation of one of the defendants; that being a risk which was assumed by plaintiff. Action by R. H. Lenkeit against George Mitchell and others. On demurrer to complaint for insufficiency. Sustained. Roelker, Bailey & Curtis, for plaintiff. J. A. O'Leary, for defendant Silverberg. BISCHOFF, J. In substance, the complaint alleges, for a first cause of action, that the defendants employed the plaintiff to sell certain bonds in Germany, and promised that he should be paid for his services any sums procured upon the sales over and above $80 for each bond; that a prospectus was given him by the defendants for exhibition to prospective buyers, but that, although the fact was unknown to the plaintiff, this prospectus was false in its material statements; that the defendants sent the defendant Silverberg to Germany with the plaintiff, and that the defendants knew, although the plaintiff did not, that Silverberg had an evil reputation; that some five months after the plaintiff had sailed for Germany the defendants recalled him and revoked his employment; that he had procured purchasers of the bonds, to the extent of 6,000 bonds, at $92.50 per bond, and the sales were not completed, but would have been, in the language of the complaint, "had not material representations contained in the aforesaid prospectus and other data furnished by the defendants been false, and had not the defendants sent to Germany, with the plaintiff, the defendant Harry Silverberg, whose evil reputation was a contributing cause of the refusal of the purchasers to complete their purchase, and had not the defendants recalled the plaintiff from Germany and withdrawn the bonds from his hands before he had reasonable opportunity of completing the sales." Damages, measured by the difference between $80 a bond and the price of $92.50, are sought. For a second cause of ac tion the same facts are pleaded to support a recovery upon quantum meruit. I fail to find that sufficient facts are stated to present a cause of action. There is no attempt to set forth a case of deceit; averments essential to such a case being omitted. The first cause of action is for the agreed compensation based upon substantial performance of the contract, or upon an excuse for nonperformance; but the reasons stated for the failure to sell the bonds do not accord with substantial performance or with the defendants' default of their agreement. No question of immorality or illegality of the transaction is really involved, although argued at some length by the defendants. The plaintiff being innocent of fraud, he could, according to the adjudged cases, have recovered his compensation from the defendants, had the sales been completed, notwithstanding the sellers' fraudulent intent; but there was no completion, and the right of recovery depends upon the contract between these parties and the duties which each assumed. The buyers. (and the only buyers procurable at a profit to the plaintiff, so far as appears) refused to conclude the purchase, and three reasons are stated. If one reason had not arisen, obviously the others would have pre vented the sales; and thus, unless all three may be said to have sprung from the defendants' breach of their agreement, the plaintiff could not excuse his own failure to perform. His reward was to be based upon completed sales; and, unless sales were prevented by the defendants' default, he may recover nothing, since no bonds were sold. The action not being founded upon deceit, as I have noted, the first ground for the purchaser's refusal to accept the bonds-the falsity of the prospectus can avail the plaintiff as an excuse only upon the theory that the defendants had impliedly warranted its truth. If I assume that this theory is tenable, because the employment to sell bonds necessitated the use of the prospectus, and its falsity meant impossibilty of performance, the second ground of excuse still does not, in any aspect, charge the defendants with an act of hostility to their contract with the plaintiff. Silverberg, one of his employers, could certainly accompany him to Germany, if he saw fit; and the contract in no way held out, by implication, a warranty that this defendant or any other had not a bad reputation in that country. Deceit apart-and this action is strictly on the contract-the plaintiff took the risk of a defeat of his endeavors. through bad companionship; and the court cannot aid by him torturing the agreement. Silverberg's sinister presence was one reason for the loss of these sales; but this was something that the plaintiff risked, and something which was not an excuse for his own nonperformance. Therefore, the only available purchasers having refused to buy for one reason which it was not the defendants' duty to avoid, no cause of action is stated, although, but for this, the other reasons-if all-might have sufficed to support the case. The third reason for the failure of the sales the plaintiff's premature recall-may be deemed to be sufficiently pleaded, since all the circumstances which would have a bearing upon the question of what was a reasonable time would be in the nature of evidentiary matter, and not to be included in the complaint; but, since no prospective purchasers are indicated other than those with whom the plaintiff had failed in any event, and the recall being asserted to have had a bearing only upon these attempted sales and the reasonableness of the opportunity to complete them, this circumstance indicates no basis for a right of action. The second cause of action is subject to the same infirmity as the first, since necessarily the right of recovery upon quantum meruit is founded upon the defendants' prevention of performance under the contract. Demurrer sustained, with costs, with leave to plaintiff to amend upon payment of costs within 20 days. (55 Misc. Rep. 368.) and 140 New York State Reporter BAIER v. KELLEY. (Supreme Court, Special Term, New York County. July, 1907.) MORTGAGES-FORECLOSURE-APPOINTMENT OF RECEIVER. Though a receiver clause in a mortgage does not prima facie entitle the mortgagee to the appointment of a receiver, where it appears that the mortgage is a second mortgage, and that the parties in possession refuse to pay the interest and taxes, are receiving the rents, and there is a doubt whether the security is adequate, a receiver will be appointed. [Ed. Note. For cases in point, see Cent. Dig. vol. 35, Mortgages, §§ 1374, 1375.] Action by Anna M. S. Baier against Hannah E. Kelley. Motion for receiver in action to foreclose mortgage. Granted. Charles Foster, for plaintiff. Charles S. Clark, for defendant. DAYTON, J. The papers fail to show that the property is inadequate to secure plaintiff's mortgage. Indeed, I think the contrary is shown. The receivership clause in a mortgage does not prima facie entitle the mortgagee to the appointment of a receiver. See Thomas v. Davis, 90 App. Div. 1, 85 N. Y. Supp. 661, where the court says: "The general rule, as I understand it, is, when a mortgage contains such a provision, and it further appears, as here, that the mortgage sought to be foreclosed is a second mortgage, that the parties in possession refuse to pay the interest and taxes, are receiving the rents, and that there is doubt as to whether the security is adequate, that a receiver will be appointed." Motion granted. (55 Misc. Rep. 373.) NELSON v. FORTY-SECOND ST., M. & ST. N. AVE. RY. CO. (Supreme Court, Trial Term, New York County. July, 1907.) NEW TRIAL-MISCONDUCT OF COUNSEL. Where, in an action against a street railway company for injuries to a passenger, plaintiff's counsel in his argument stated that "a man got $1,750 here yesterday for a shoulder," and defendant's counsel excepted, a verdict for plaintiff will be set aside, though his counsel stated that he was willing the jury should be instructed to disregard the remark. [Ed. Note. For cases in point, see Cent. Dig. vol. 37, New Trial, §§ 43, 44; vol. 46, Trial, §§ 275-309.] Action by Lillie Nelson against the Forty-Second Street, Manhattanville & St. Nicholas Avenue Railway Company. Verdict for plaintiff. Motion for new trial granted. George B. Class, for plaintiff. James L. Quackenbush, for defendant. MacLEAN, J. In a sudden start case, wherein the testimony of the plaintiff, corroborated by one witness, was contradicted by that of three seemingly disinterested persons, besides the motorman, conductor, and inspector, the plaintiff's counsel, in summing up, said: "A man got $1,750 here yesterday for a shoulder." Before he could go further the defendant's counsel interposed: "I ask for the withdrawal of a juror on that." To which plaintiff's counsel returned: "The sentence was not completed, and I am entirely willing that the jury may be instructed to disregard it in the strongest terms." Thereupon the court ruled: "The motion to withdraw a juror is denied. You may proceed." Counsel for the defendant took an exception. Two other applications for the withdrawal of a juror were made for other and lesser extravasations of zeal for the plaintiff's sake. No allusion was made in the charge to these improprieties, the court, from observation had and inquiry made upon both sides of the bar, having no faith in retraction by others than those whose words should be withdrawn, and little trust in the efficacy of correction of statements by counsel or judge construable by jurymen into furtherance of the prejudice commonly obtaining in favor of the person-this time a woman-bringing the action and the frequent feeling that one who has been hurt should get something from somebody. Effort would have been futile to eliminate by disparaging instruction the effect of the suggestion, apparently well driven home, that it but remained for the jury to assess the damages, of which one item in the tariff was $1,750 for a shoulder. The motion to set aside the verdict and accord a new trial is granted. Motion granted. (55 Misc. Rep. 445.) HATHORN et al. v. DR. STRONG'S SARATOGA SPRINGS SANITARIUM et al. (Supreme Court, Special Term, Saratoga County. June, 1907.) 1. WATERS-PERCOLATING Waters-DIVERSION. Where mineral springs have a common source, and the owners of land in the neighborhood bore on the premises through the underlying rock till they reach the mineral waters percolating therein, and attach thereto a pump by which they divert by artificial appliances the mineral water from plaintiff's spring, plaintiff is entitled to an injunction to restrain the defendants from operating their pump. [Ed. Note. For cases in point, see Cent. Dig. vol. 48, Waters and Water Courses, § 113.] 2. SAME "PERCOLATING WATERS." Underlying waters, whose sources are not well defined, are deemed percolating, and part of the land on which they are found, and the absolute property of the owner of the land, where he does not unreasonably injure the rights of others; and where he intercepts the percolating waters of his neighbor's land the injury is damnum absque injuria. [Ed. Note. For cases in point, see Cent. Dig. vol. 48, Waters and Water Courses, 108. For other definitions, see Words and Phrases, vol. 6, p. 5287; vol. 8, p. 7750.] Action by Emily H. Hathorn and Frank H. Hathorn against Dr. Strong's Saratoga Springs Sanitarium and Sylvester E. Strong, to enjoin pumping of a well. Granted. Rockwood & Salisbury (Edgar T. Brackett, of counsel), for plain tiffs. John A. T. Schwartz (Marcus T. Hun, of counsel), for defendants. and 140 New York State Reporter SPENCER, J. The plaintiffs are owners of the Hathorn mineral spring at Saratoga and the defendants of the Dr. Strong's Sanitarium in the same village. Plaintiffs' spring, discovered in 1868, has discharged large quantities of mineral water, which have been used for medicinal purposes upon the premises or conserved in bottles and sold for use elsewhere. Its owners have thus enjoyed a large and profitable business. In recent years the quality of gas has gradually depreciated and the flow of water decreased, so that, at the time of the commencement of this action, it had practically ceased to flow. The defendants, whose premises are about 1,200 feet distant, in 1902 drilled a well about 6 inches in diameter and about 400 feet deep, at which depth Saratoga mineral water was discovered. It did not come to the surface, but stood about 30 feet below. The defendants thereupon installed therein a steam rotary pump, with the plunger about 150 feet below the surface, and commenced its operation, and continued until this action and the service of an injunction order. Such order was subsequently modified, and continued as modified. Issue has been joined and a trial had. The testimony is voluminous. Counsel have submitted briefs remarkable for clearness and the orderly manner in which the evidence is collated. They have also discussed numerous decisions by courts of this and other countries. In the midst of such a wealth of citation and discussion, one is likely to be lost, unless elementary principles are kept in mind. These principles as to waters are simple. Therefore it will be well to briefly set them forth, in order to lead up to the particular questions involved. In the absence of statutory regulations or private agreements, all waters are, in contemplation of law, regarded as either flowing or percolating. The former consists of those bodies, such as lakes, ponds, and streams, which are upon or beneath the surface of the earth, and whose boundaries and courses are well defined and reasonably ascertainable, and whose existence is not of a temporary or ephemeral character. As to these the owner of land has no title. His right to use or divert is measured by its reasonableness and limited to the premises along, through, or over which the waters flow. The reason for this rule is found in the fact that all such riparian owners have rights therein, and one may not unreasonably interfere with another. Without discussion, it may be premised that none of the waters of Saratoga belong to this class. All waters, not within the above description of flowing waters, are deemed percolating. They are so regarded because, practically, they constitute themselves parts of the substances in which they exist or through which they pass. When found in land, they may not be distinguished in law from the land. They are a part of the same, and the owner of the land is the absolute owner. He may use them where and in such manner as he chooses or dispose of them to others for like use. He is subject only to the general limitation, which has application to all ownership of property, that in its acquisition and enjoyment he may not unreasonably injure or interfere with the rights of others. As all springs and streams classed as running waters draw their supplies from percolating waters, it follows of necessity that they are subject to diminution or exhaustion by use or diversion by the owner |