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(Supreme Court, Special Term, New York County. April 16, 1909.)

BREACH OF MARRIAGE PROMISE (8 18*)-COMPLAINT-MUTUALITY OF PROMISE.

A complaint, in an action for breach of promise, that “in consideration that the plaintiff, who was then

unmarried, at the request of the defendant, would marry him on request, the defendant promised the plaintiff to marry the plaintiff on request,” and that plaintiff had repeated. edly requested of defendant that he marry her, and that defendant had neglected, failed, and refused, and does still neglect, fail, and refuse, to do 80, sufficiently states a contract which is mutual and a breach thereof by defendant.

(Ed. Note.--For other cases, see Breach of Marriage Promise, Cent. Dig. $8 21, 22; Dec. Dig. § 18.*]

Action by Essie Hughes against Homer T. Walter. On demurrer to a complaint that it does not state facts sufficient to constitute a cause of action. Overruled.

James Liebling, for plaintiff.
Brunner & Ryan, for defendant.

GIEGERICH, J. The action is to recover damages for an alleged breach of promise to marry. The complaint alleges:

“That heretofore, and on or about the 2d day of June, 1907, in consideration that the plaintiff, who was then sole and unmarried, at the request of the de fendant, would marry him on request, the defendant promised the plaintiff to marry the plaintiff on request."

The complaint, among other things, further alleges that the plaintiff has repeatedly requested and demanded of the defendant that he marry her, and that the defendant has neglected, failed, and refused, and does still neglect, fail, and refuse, so to do, and demands judgment for $5,000. The defendant has demurred to the complaint for insufficiency, and urges that the alleged contract to marry lacks mutuality, and hence is not enforceable. *For other cases see same topic & $ NUMBER In Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

116 N.Y.8.-1

The case of Smyth v. Greacen, 100 App. Div. 275, 276, 91 N. Y. Supp. 450, 451, is cited in support of such contention. There the complaint alleged that:

“In consideration that the plaintiff, who was then a sole and unmarried woman, at the request of the defendant, agreed and would marry him on such request, the defendant promised the plaintiff to so marry her on his request."

Mr. Justice Ingraham, who wrote the prevailing opinion, in passing upon the sufficiency of the allegation just quoted, said:

“What was it that the defendant promised? He promised to marry the plaintiff at his request, or, in other words, that he would marry her when he made a request that she marry him. This was in substance a mere option to marry the plaintiff, without any corresponding obligation on his part to marry her, and there was, therefore, no mutuality in the promise which can sustain the contract."

In the present case, however, the defendant promised to marry the plaintiff on her request, and the moment the plaintiff requested the defendant to marry her there arose an obligation on the part of the defendant to do so. There is thus in the case at bar the necessary mutuality, consisting of a legal obligation on the part of each of the parties to marry, which element, as already shown, was lacking in the Smyth Case. The complaint sufficiently alleges a valid contract and a breach thereof by the defendant. Getzelson v. Bernstein, 15 Misc. Rep. 627, 37 N. Y. Supp. 220.

The demurrer is therefore overruled, with costs, with leave to the defendant to withdraw the same and to answer upon payment of such costs within 20 days after the service of the interlocutory judgment, with notice of entry thereof.

(62 Misc. Rep. 610.)

FEDER et al. v. ROSENTHAL et al.

(Supreme Court, Appellate Term. April 8, 1909.)

1. VENDOR AND PURCHASER (8 133*) — CONTRACT — VIOLATION OF TENEMENT

HOUSE ACT.

There being no law requiring owners of tenement houses to install water meters, the commissioner of water supply being only authorized in his discretion to cause meters to be installed, the owners of a tenement house contracted to be conveyed were not, before notice to install a meter, chargeable with a violation of the tenement house act (Laws 1901, p. 889, C. 334), within the contract of sale requiring a conveyance free from all violations filed against the premises in any of the municipal departments of the city.

(Ed. Note.–For other cases, see Vendor and Purchaser, Dec. Dig. $

133.*] 2. VENDOR AND PURCHASER ($ 133*) — TENEMENT HOUSE ACT-VIOLATION-IN

STALLATION OF WATER METER.

The commissioner of water supply of the city of New York having no authority to order the owners of a tenement house to install a water meter, but being authorized only to cause a meter to be installed after notice and charge the expense thereof to the owners of the property, the owners' failure to install a meter after notice was not a violation of the

tenement house act (Laws 1901, p. $89, c. 334), within a contract of sale requiring a conveyance free from violations thereof.

[td. Note. For other cases, see Vendor and Purchaser, Dec. Dig. $

133.*] 3. VENDOR AND PURCHASER ($ 133*) — CONTRACT OF SALE — "LIEN"-"INCUM

BRANCE.

Where the owners of a tenement house on November 1, 1906, contracted to convey the same to plaintiffs free from all incumbrances and violations of the tenement house act (Laws 1901, p. 889, c. 334), and on May 23th had been served with notice to install a water meter, which was installed by the water department on October 8th, but the cost was not certified until November ist, nor the bill certified to the comptroller until December 13, 1906, the assessment therefor was not a lien on the premises, when conveyed on December 11th, the words "lien or incumbrance" being used to cover only a charge against the property after it has been ascertained or determined.

[Ed. Note.-For other cases, see Vendor and Purchaser, Dec. Dig. $ 133.*

For other definitions, see Words and Phrases, vol. 4, pp. 3519-3527 ; vol. 5, pp. 41144152; vol. 8, p. 7707.) Appeal from Municipal Court, Borough of Manhattan, Second District. Action by Moses Feder and another against Max Rosenthal and

From a Municipal Court judgment in favor of plaintiffs, defendants appeal. Reversed and dismissed.

Argued before GILDERSLEEVE, P. J., and SEABURY and LEHMAN, JJ.

L. Alexander, for appellants.
Isidore Frey, for respondents.

LEHMAN, J. Between May 24, 1906, and December 11, 1906, the defendants were the owners of a tenement house in New York City. On the 1st day of November, 1906, they entered into a contract in writing with the plaintiffs, whereby they agreed to convey the said premises with full covenants of warranty, free from all incumbrances, and free from all violations filed against the said premises in any of the municipal departments of the city of New York.

On the 25th day of May, 1906, a notice was served upon the janitor of the defendants, requiring the owners of the premises to install a water meter, and stating that in case of their failure or neglect so to do the meter would be placed therein by the department and the expense charged to them. The defendants failed to install such a meter, and the department installed one on October 8, 1906. The city plumber rendered a bill to the department between October 8 and November 1, 1906. An inspection of the work was made by the department on November 1, 1906, and the same was certified as properly done. The bill of the city plumber was certified by the water department to the comptroller, with other bills for similar work, on December 13, 1906. It does not appear from the books of the water department when the foregoing charge was entered upon its books. The premises were conveyed under the above contract of sale to the plaintiffs, with full covenants for conveying and assuring to the plaintiffs the fee simple of said *For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

premises, on December 11, 1906. The bill for the installation of the water meter was mailed to the premises on January 15, 1907. Upon these facts the trial justice rendered judgment for the plaintiffs for the sum of $164.79, together with costs.

It seems to me that the judgment was erroneous. It cannot be supported on the ground that the notice to the defendants was a violation, within the meaning of the contract. The defendants, before the notice, had certainly committed no violation, because there is no law requiring the owners of all tenement houses to install meters; for the law simply authorizes the commissioner of water supply, in his discretion, to cause water meters to be installed; nor could the failure of the owners thereafter to install the meter be considered a violation, because the commissioner of water supply had no authority to order the owner to install the meter, but only authority to cause a water meter to be installed, and the notice was effective, if at all, by virtue of such authority, and as a convenient means of causing the installation. It is to be noted that this notice did not seek to impose a penalty if the meter was not installed, but only stated that the department would, in case of failure, place the meter itself and charge the expense to the owner.

It cannot be supported on the ground that the charge was a lien upon the premises at the time that the premises were conveyed. To constitute a lien or incumbrance, within the meaning of a covenant against them, the amount of a charge should be ascertained or determined. Harper v. Dowdney, 113 N. Y. 614, 21 N. E. 63. I cannot find upon the agreed statement of facts that this occurred before December 13, 1906. It is true that a bill had been rendered and the work had been certified before that date; but it does not appear that the amount of the bill had been approved of. I am of opinion that the amount of the charge must be fixed by some act of the department before it can become a lien or incumbrance, and that no such act is alleged in the agreed statement of facts to have been performed before the certification of December 13, 1906.

The judgment should be reversed, and the complaint dismissed, with costs to the appellants. All concur.

(62 Misc. Rep. 616.)

BEINERT v. WILLIAM M. TIVOLI & Co.

(Supreme Court, Appellate Term. April 8, 1909.) 1. SALES (8 244*)-PURCHASER FROM BUYER-BONA FIDES-BURDEN OF PROOF.

In replevin against a person who claims under a fraudulent vendee, the burden is on him to show that he is an innocent purchaser for value.

[Ed. Note.--For other cases, see Sales, Cent. Dig. $8 700–702; Dec. Dig.

§ 244.*) 2. EVIDENCE (8 246*)-ADMISSIONS-ADMISSIBILITY.

An admission by an attorney, though not made under circumstances that would make it evidence as against his client, is admissible to show that the attorney had knowledge of the fact admitted.

(Ed. Note. For other cases, see Evidence, Dec. Dig. § 246.* ]

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3. CORPORATIONS (8 428*)—NOTICE TO AGENTS-EFFECT.

A corporation, represented in a purchase of personalty from a fraudulent vendee by a person who has knowledge of the facts, is charged with knowledge thereof, and is not an innocent purchaser.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. 88 1748-1761;

Dec. Dig. § 428.*] 4. REPLEVIN 100*)-JUDGMENT-FORM.

A judgment in replevin, which awards a money judgment as damages, the goods being in plaintiff's hands, is irregular, and must be modified to give plaintiff simply the possession of the goods and costs.

[Ed. Note.—For other cases, see Replevin, Cent. Dig. § 388; Dec. Dig.

$ 100.*]
6. APPEAL AND ERROR (8 662*)–RECORD-CONCLUSIVENESS.

The Supreme Court is bound by the record of the trial judge.
[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $8 2850

2852 ; Dec. Dig. $ 662.*] 6. COURTS (8 189*) - NEW YORK MUNICIPAL COURT – TIME OF RENDITION OF

JUDGMENT.

Under a stipulation that the parties should submit briefs on or before a date named, and that the justice should have two weeks to make his decision after "receipt” of the last brief, a justice had two weeks from the actual receipt of the last brief within which to decide the case, and a decision then rendered was in time, within the Municipal Court act (Laws 1902, p. 1486, c. 580), providing that on issue of fact joined, if a jury trial be not demanded, the court must hear the evidence and render judgment within 14 days after submission of the cause, except where further time is given by consent of the parties.

Ed. Note.-For other cases, see Courts, Dec. Dig. & 189.*]

Appeal from Municipal Court, Borough of Manhattan, Fifth District.

Action by George D. Beinert against William M. Tivoli & Co., impleaded with others. From a judgment for plaintiff, and an order denying a motion to vacate the same, defendant William M. Tivoli & Co. appeals. Judgment modified and affirmed, and order affirmed.

Argued before GILDERSLEEVE, P. J., and SEABURY and LEHMAN, JJ.

Charles L. Apfel, for appellant.
Katz & Sommerich, for respondent.

LEHMAN, J. The plaintiff herein installed certain electric fixtures in a café in New York at the request of one Frederick Robinson under certain representations made to him regarding the solvency of the said Robinson. Upon the trial the plaintiff showed by an abundance of evidence that these representations were made by Robinson and his agents, that the plaintiff relied on them, and that they were false and made with intent to deceive. While, from the nature of the case, the plaintiff's evidence was largely circumstantial, it was clear and convincing. It appeared upon the trial that Robinson sold the café to one Frank Wardman, who, in turn, sold the same to one William M. Tivoli, who, in turn, sold the same by bill of sale to William M. Tivoli & Co. The plaintiff, after rescinding his contract, replevined

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

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