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BARNARD, P. J. The issues in each of these actions are the same. The action is brought by each of the plaintiffs for the specific performance of an agreement under which the defendant agreed to deliver 100 shares of the full-paid capital stock in certain corporations which were expected to be organized through the efforts of the defendant as a promoter. No such corporation was organized as was called for by the agreement between the parties. Another corporation was chartered in West Virginia, and the owner of the patent (Ogden) transferred the patent right to that company. The question of fact presented and tried was whether the defendant really obtained this West Virginia charter, and, in consequence thereof, is entitled to the shares of stock provided for by the agree ment which would have been his right had he succeeded as promoter. The trial judge has found that the defendant was not instrumental in forming the West Virginia corporation. It is not disputed but the corporation contemplated by the defendant failed to become an existing one. The new corporation was procured by Luther E. Shinn. Gibbon so testifies. Shinn refused to have any preliminary dealings with defendant, and the new company demanded a transfer of the patents from Gibbon, and in hostility to the contract between Gibbon and Elwell. The facts that the new company was procured to be organized by Shinn, and that it was organized because Elwell was unable to organize one for the purpose of using the Gibbon patents; that the new company was independent of, and distinct from, the one which defendant attempted to create, but failed to do, on account of his inability to procure the necessary capital,-seem plainly proven. The defendant was free to enter into new arrangements upon the failure of those made with Gibbon, and under which the plaintiffs had advanced money, but which have resulted in nothing. The judgment should therefore be affirmed, with costs. All concur.

RAVEN V. SMITH, (No. 1.)

(Supreme Court, General Term, Second Department. July 28, 1893.) DAMAGES-EVIDENCE-BREACH OF CONTRACT.

In an action for refusal of defendant to allow plaintiff to perform a contract for grading, where plaintiff gives evidence that the work could have been done for a certain amount less than defendant agreed to pay him, defendant may give evidence that it would have cost more than he agreed to pay.

Appeal from special term, Westchester county.

Action by John Raven against William R. Smith for services performed under a contract, and for breach of the contract. From a judgment in favor of plaintiff, defendant appeals. Reversed. Argued before BARNARD, P. J., and PRATT, J.

James R. Bowen, for appellant.
Frederick W. Clark, for respondent.

BARNARD, P. J. A large part of the plaintiff's claim was for damages for a breach of the contract by which the plaintiff was to grade a lot at 14 cents per cubic yard. There was no real dispute as to the contract or as to its breach. After a small portion of the grading had been done, the defendant directed the work to stop. The plaintiff gave evidence that the grading could have been done for 83 cents a yard, which gave 5 cents as the profit which the plaintiff would have made if he had been permitted to complete the work. The defendant offered to prove that the actual cost to a contractor per cubic yard for grading this property would be more than 14 cents. This proof was rejected. The ruling was erroneous. If the proof had been received and credited, there was no basis for a verdict for $1,000 damages, which was the sum allowed for the refusal by defendant to permit the plaintiff to go on with the excavation. The judgment should be reversed, and a new trial granted; costs to abide event.

(71 Hun, 197.)

RAVEN v. SMITH, (No. 2.)

(Supreme Court, General Term, Second Department. July 28, 1893.)


Under Laws 1885, c. 342, § 1, giving a mechanic's lien to any person who shall perform labor in altering or repairing any "building or building lot," a lien may be had on building lots for grading.


A suit to enforce a lien may be maintained, though an action is pending for the claim for which the lien was filed, and for damages for breach of the contract under which the services were rendered.

Appeal from Westchester county court.

Action by John Raven against William R. Smith to enforce a mechanic's lien. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
James R. Bowen, for appellant.
Frederick W. Clark, for respondent.


DYKMAN, J. This is an appeal by the defendant from a judg ment of the county court of Westchester county in favor of the plaintiff, against the defendant, in an action to foreclose a lien in favor of the plaintiff for grading building lots. The action is prosecuted under chapter 342 of the Laws of 1885, and the first section of that act provides for a lien to any person who shall perform labor or service in altering or repairing any "building or building lot." The claim of the plaintiff falls directly under this provision, and the contention of the defendant that no lien could be acquired is destroyed by the statute. It is also contended that the county court had no jurisdiction over the action, but the seventh section of the act provides that the claimant may enforce his claim against the property mentioned in the lien, and against the person liable for the debt by a civil action in a court of record in the city or

county where the property is situated which would have jurisdiction to render a judgment in an action founded upon a contract for a sum equal to the amount of the lien. This provision includes this case, and the objection is baseless. The other suit pending between these parties (24 N. Y. Supp. 600,) is not for the same relief as this, and presents no obstacle to the maintenance of the present action. The judgment should be affirmed with costs. All concur.


(Supreme Court, General Term, Second Department.


An order refusing a postponement of trial for absence of a witness will not be disturbed on appeal where it appears that the moving party had for several days previous to the motion answered ready on the call of the day calendar, though knowing of the witness' absence.

July 28, 1893.)

Appeal from circuit court, Kings county.

Action by Francis E. Walbridge and others against the J. Dewing Publishing Company. Defendant moved for a postponement three days before the trial, on the ground of the absence of a witness, who, according to defendant's affidavit, had formerly been in defendant's employ, but had a year before gone into the employ of a person in another state. From a judgment for plaintiffs, and from several orders, one of which denied the postponement, defendant appeals. Affirmed.

Argued before BARNARD, P. J., and DYKMAN and PRATT,


Saunders, Webb & Worcester, for appellant.

Jackson & Burr, (Jos. A. Burr, Jr., of counsel,) for respondents.

DYKMAN, J. This action was brought for the recovery of damages sustained by the plaintiffs for a breach of contract entered into between them and the defendant. The cause was tried at the circuit, before a jury, and a verdict was rendered in favor of the plaintiffs for $2,576.41. The record presents four appeals by the defendant,-one from the judgment entered upon the ver dict; one from the order denying a motion for a new trial, upon the minutes of the court; one from an order denying a motion to postpone the trial of the action; and one from an order refusing to stay the entry of judgment, and direct a reference of the equitable defense set up in the answer. The appeals are all destitute of merit. There is nothing in the answer that bears the faintest resemblance to an equitable defense, and in relation to the motion to postpone the trial the judge evidently looked upon it as an afterthought, inasmuch as the counsel for the defendant had answered ready upon the call of the day calendar for several days previous. In relation to the other two appeals, it is sufficient to say that the verdict is well supported by the evidence, and the record discloses no errors. The judgment and order denying the

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motion for a new trial should be affirmed, with costs, and both of the other orders should be affirmed, with $10 costs and disbursements in each case. All concur.

(71 Hun, 108.)


(Supreme Court, General Term, Second Department. July 28, 1893.) ACTION FOR PERSONAL INJURIES-CONTRIBUTORY NEGLIGENCE.

In an action for personal injuries, where the evidence on the question of contributory negligence is such that reasonable men might reach adverse conclusions, the question is one for a jury.

Appeal from trial term, Kings county.

Action by Charles Erickson against the Twenty-Third Street Railway Company for personal injuries. Plaintiff had judgment, from which, and an order denying a motion for a new trial on the minutes, defendant appeals. Affirmed.

Argued before BARNARD, P. J., and DYKMAN, J.

Robinson, Biddle & Ward, (Edmund Randolph Robinson, of counsel,) for appellant.

J. Edward Swanstrom, for respondent.

DYKMAN, J. This is an appeal from a judgment in favor of the plaintiff against the defendant, and from an order denying a motion for a new trial upon the minutes of the court. The action was for the recovery of damages for injuries sustained by reason of the carelessness of one of the drivers of the defendant's cars, and the insistence of the defendant, upon this appeal, is that the evidence disclosed the contributory negligence of the plaintiff so plainly that it became a question of law, for the determination of the trial judge, and that it was erroneously submitted to the jury. Upon consideration of all the facts and circumstances surrounding the accident, we find ourselves unable to adopt that view. We do not think the evidence of the contributory negligence was so plain that reasonable men might not reach adverse conclusions upon the subject. Such being our view, we cannot interfere with the verdict, and the judgment and order should be affirmed, with costs.


(Supreme Court, General Term, Second Department. July 28, 1893.) JUDGMENT-RES JUDICATA.

A judgment on the merits in favor of defendant in an action for inJuries caused by an obstruction on a turnpike, against the person who placed the obstruction there, and in which defendant pleaded contributory negligence, bars a subsequent action against the turnpike company for the same injuries.

Appeal from special term, Orange county.

Action by Mary Featherson against the president, directors, and company of the Newburgh & Cochecton Turnpike Company for personal injuries caused by an obstruction which defendants negligently permitted to be and remain on such road. From an order sustaining a demurrer to so much of the answer as set up a former adjudication as a separate defense, defendants appeal. Reversed.

Argued before BARNARD, P. J., and DYKMAN and PRATT,


E. A. Brewster, for appellants.

A. H. F. Seeger, for respondent.

DYKMAN, J. This is an appeal from the order sustaining a demurrer by plaintiff to one of the separate defenses set up in the answer of the defendant. The action was for the recovery of damages for personal injuries sustained by the plaintiff upon the defendant's road, caused by an obstruction which was permitted to remain there by the defendant. After stating that the defendant was a turnpike corporation organized under a special act of the legislature of the state, and that the road was a public highway, and that it was the duty of the defendant to keep and maintain the same reasonably free from obstructions, the complainant proceeds to allege that while she was walking upon the road or highway of the defendant, opposite and near the premises of one Daniel A. Shaffer, in the village of Montgomery, in the county of Orange, she fell over a log of wood lying upon a stone wall built upon such highway, bounding an area or passageway over the highway to the basement of the barn or stable upon the premises of Shaffer, which log, stone wall, and area or passageway were carelessly and negligently allowed and permitted by the defendant to be open, and to obstruct defendant's said highway, in consequence of which negligent act of the defendant the plaintiff was precipitated over the said log, and into the said area or passageway upon the defendant's road, and sustained the injuries complained of in the complaint. In the answer to the complaint the defend ant sets up a separate defense, in the following words:

"For a further answer and defense the defendant states that the alleged obstructions over which the plaintiff alleges that she tripped and fell were placed and maintained where they were by one Daniel H. Shaffer, and, if the plaintiff should recover damages against these defendants in this action, they would have a right of recovery over against said Shaffer for the same, if such right of recovery had not been destroyed by the judgment in the action hereafter mentioned; but the plaintiff cannot maintain the present action, because on March 22, 1892, she brought her action in this court against said Daniel A. Shaffer to recover her damages sustained by means of the same identical injuries alleged in the complaint in this action. Said Shaffer put in his answer to said complaint, alleging, among other things, that such injuries were caused by the contributory negligence of the plaintiff. Said action was duly tried, and decided on its merits in favor of the defendant, and judgment in said action was duly entered in the Orange county clerk's office, November 21, 1892, in favor of defendant Shaffer, against the plaintiff; and this defendant claims and insists that such judgment is a bar to the

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