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as an incident to the fee. Norman v. Wells, 17 Wend. 136; Nye v. Hoyle, 120 N. Y. 195, 24 N. E. 1; Van Rensselaer v. Read, 26 N. Y. 558. It seems to me that the questions involved in this suit require no extended consideration here, as they are sufficiently considered in the following cases: Lattimer v. Livermore, 72 N. Y. 174; Phoenix Ins. Co. v. Continental Ins. Co., 87 N. Y. 400; Hodge v. Sloan, 107 N. Y. 250, 17 N. E. 335, 1 Am. St. Rep. 816; Kahn v. Hoge, 61 App. Div. 147, 70 N. Y. Supp. 434; Holt v. Fleischman, 75 App. Div. 593, 78 N. Y. Supp. 647.
I am not impressed with the force of the arguments of the learned counsel for the defendant "that a search of the records relating to the Nineteenth street lot would not have disclosed any covenant or restriction in favor of the Twentieth street lot," and that there is nothing to indicate the existence of any general plan of restriction of the several lots of land on the block. An examination of the title to the Nineteenth street lot would have revealed the restriction in the deed by Crane to Sherman, as well as in several subsequent deeds in the chain. As to the point that no general scheme of restriction existed, as has been observed, none was intended; it being expressly designed to restrict the Nineteenth in favor of the Twentieth street lot. This distinction differentiates this case from the facts appearing in some of the cases relied upon by defendant's counsel. Other cases cited in behalf of the defendant were those in which the covenant was purely personal, and therefore did not pass to subsequent grantees. That the restriction in the deed of Crane to Sherman was not intended to be personal is emphasized by the fact that was expressly to be restricted "when sold or built upon by him [Crane]," and that as a matter of fact within a few months after the delivery of the Sherman deed Crane conveyed to Hoffman with the restrictive covenant as he had agreed to do.
Upon the undisputed facts there seems to be no alternative but to grant the injunctive relief prayed for.
Decreed accordingly, with costs and extra allowance of $350 to plaintiffs. Findings signed.
Argued before PATTERSON, P. J., and CLARKE, HOUGHTON, and SCOTT, JJ.
L. Marshall, for appellant.
A. C. Weil, for respondents.
PER CURIAM. Judgment affirmed, with costs, on the opinion of Greenbaum, J. Order filed.
(63 Misc. Rep. 16.)
In re WILLCOX et al., Public Service Com'rs.
(Supreme Court, Special Term, New York County. April 17, 1909.)
1. EMINENT DOMAIN (§ 174*)-STREET RAILROADS-ACQUISITION OF RIGHT OF RIGHT OF WAY-CLAIMS FOR COMPENSATION-CONSTRUCTION OF RAPID TRANSIT ACT.
The rapid transit act (Laws 1891, p. 3, c. 4) requires claims for compensation to be presented to the commissioners of appraisal within six months after their appointment, and provides that the failure to present a claim within that time shall be deemed a surrender of any claim to compensation, except so far as the claimant may be entitled to the whole or a part of the amount awarded by the commissioners as compensation for property owned by the claimant or in which he is interested. Held that, as the proceeding by the commissioners was intended to be summary, the time limit should be strictly construed; and a lessee of property alleged to have been damaged by construction of a rapid transit extension, who did not present his claim within the prescribed period, was preclud
For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
ed from recovery, and the reasons offered in extenuation of his failure to file his claim in time could not be considered even under Code Civ. Proc. § 724, allowing a court to relieve a person from a judgment taken against him through mistake, excusable neglect, etc., within a year after notice thereof, especially as that section cannot be availed of where limitation is involved.
[Ed. Note. For other cases, see Eminent Domain, Cent, Dig. & 475, 476; Dec. Dig. § 174.*]
2. EMINENT DOMAIN (§ 174*)--STREET RAILROADS-ACQUISITION OF RIGHT OF WAY-CLAIMS FOR COMPENSATION-CONSTRUCTION OF RAPID TRANSIT ACT.
The exception in the provision for filing claims does not extend the time limit for filing claims, but merely protects the real party to an award where he has not filed notice of claim in time, and does not apply to a person to whom no award was made.
[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. § 784; Dec. Dig. 174.*]
Application by William R. Willcox and others, as Public Service Commissioners, for appointment of Commissioners of Appraisal pursuant to the rapid transit act (Laws 1891, p. 3, c. 4) and amendatory acts. On petition of Adolph Le Moult to compel the Commissioners of Appraisal to receive a claim for damages. Denied.
I. T. Flatto, for petitioner.
Joseph A. Flannery, for Elizabeth K. Lorillard.
DAYTON, J. Application for an order directing the public service commission to receive on behalf of Adolph Le Moult, lessee, notice of claim and evidence of damage to leasehold premises on Delancey street rapid transit extension, between Bowery and Elizabeth streets, borough of Manhattan. The rapid transit act (Laws 1891, p. 3, c. 4) provides that claims for compensation "shall within six months after the appointment of the commissioners of appraisal" be exhibited to the commissioners, who shall hear testimony. "Every person neglecting or refusing to present such claim within said time shall be deemed to have surrendered his claim for such compensation, except so far as he may be entitled, as such owner or person interested, to the whole or a part of the sum of money awarded by the commissioners of appraisal as just compensation for taking or extinguishing the property owned by said person, or in which said person is interested."
The lease in question was received in evidence by the commissioners on the hearing of the claim of the owner of the fee within the sixmonths period, which period expired November 24, 1908. Le Moult did not appear until February 25, 1909, on which day he offered to present his notice of claim. The city objected. The commission took the question under advisement, and on March 4, 1909, decided that the "claim is presented too late." The city contends that Le Moult's remedy, if he has any, is by mandamus, on the ground that this court has no power at common law or under section 724 of the Code of Civil Procedure or the rapid transit act, or any statute of the state, to grant an order of the nature asked for. This may or may not be so, but the motion can be disposed of without determining that preliminary ob
jection. The constitutionality of the rapid transit act is conceded by petitioner's counsel. The weight of authority sustains such limitations of time as in the rapid transit act above quoted, and therefore the reasons offered by the petitioner in extenuation of his failure to file his claim within that limit may not be considered, even under section 724, Code Civ. Proc., which, in any aspect, cannot be availed of where a statute of limitations is at law. Petitioner's counsel urges that the exception in the quoted provision of the rapid transit act entitles him to relief, but that provision only protects the real party to an award made in the event that he has neglected to file notice of claim within the time limit; doubtless meaning an award to unknown owners. This exception is not an extension of the time limit for filing claims. This strict construction is necessary to carry out the evident intent of the statute to make this proceeding somewhat summary. As above stated, the commission has before it Le Moult's lease. It may of its own motion place a value upon it, but, whether or not that be done, it is not for me to say on this application that Le Moult is remediless against the owner of the fee after the award is made.
Motion denied. No costs.
(63 Misc. Rep. 120.)
CONCORD CONST. CO. v. PLANTE.
(Supreme Court, Special Term, New York County. April 2, 1909.)
1. MECHANICS' LIENS (§ 291*)-SCOPE OF RELIEF.
A court of equity having jurisdiction of the parties in an action to foreclose a mechanic's lien can determine the validity of claims in any wise interfering with the enforcement of the lien.
[Ed. Note.-For other cases, see Mechanics' Liens, Dec. Dig. § 291.*]
2. MECHANICS' LIENS (§ 113*)-RIGHTS OF LIENORS.
A promise by a building contractor to pay the claim of a third person out of the moneys which become due under the contract is not binding as against lienors for materials used in the construction of the building.
[Ed. Note. For other cases, see Mechanics' Liens, Cent. Dig. § 148; Dec. Dig. § 113.*]
Action by the Concord Construction Company against Guthrie B. Plante to foreclose a mechanic's lien. Judgment adjudging the invalidity of assignments made by the contractor.
Bassett, Thompson & Gilpatric, for plaintiff.
NEWBURGER, J. This is an action to foreclose a merchanic's lien. It is conceded that there is now due and owing from the city of New York on the contract made between H. M. Weed & Co. and the city for the erection of Public School No. 51 the sum of $25,140. Before the work had been fully performed and the contract completed Weed & Co. executed a number of assignments covering the moneys to be paid by the city upon said contract. Of the four assignments thus made, one was to the wife of Hamilton Weed, another to a brother*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
in-law, the third to the mother-in-law, and the fourth to one Bolton. These assignments are dated the 2d of October, 1907. On the 3d of October the plaintiff filed his lien, and thereafter the defendant lienors filed liens, while the defendant Hamershlag filed instruments claiming the amount of $15,000. On the 12th of October, 1907, a petition in involuntary bankruptcy was filed against H. M. Weed & Co. Thereafter they were adjudicated bankrupts, and on the 7th of February, 1908, the defendant Plante was duly appointed and qualified as trustee of the assets and effects of said bankrupts. The plaintiff and defendant lienors ask in their pleadings that the question as to the validity of the assignments and of the claim of the defendant Hamershlag be determined in this action.
It has been repeatedly held that a court of equity having jurisdiction. of the parties and of the action can determine the validity of claims that in any wise interfere with the enforcement of a lien under the mechanic's lien law (Laws 1897, p. 514, c. 418). See Gross v. Daly, 5 Daly, 540; Mahoney v. McWalters (Sup.) 38 N. Y. Supp. 256; N. Y. L. Co. v. 73d St. Bldg. Co., 5 App. Div. 87, 38 N. Y. Supp. 869. The court thus having jurisdiction, the question to be determined is as to the validity of the four assignments, and I find that the assignments to Jane M. Janes, Martha R. Weed, Janes & Leo, and William H. Bolton were not only fraudulent, and made for the purpose of giving a preference to these parties, but were made for the purpose of defeating the liens filed. It furthermore appears that under the contract between the city and the contractor the contractor was prohibited from assigning any funds due under the contract. The lienors had a perfect right, at the time of furnishing materials that were used upon the building, to rely on that provision of the contract, and to assume that, as no assignments could be made, they would be protected.
As to the claim of Hamershlag, a reading of the papers offered by him in evidence, and marked Exhibits A and B, and under which he claims, show conclusively that it was understood that they should not operate as an assignment of any of the funds. At most it was a mere promise on the part of Weed & Co. to pay out of the moneys which became due the amount of the claim, and as against the lienors it is not binding. As to the priority of the liens, that will be determined by me upon the settlement of the findings and decree.
I therefore find that the four assignments heretofore referred to are void as against the plaintiff and the defendant lienors, and that the defendant Hamershlag is not entitled to any portion of the fund, but that the same should be distributed among the lienors. Submit findings and decree in accordance with these views.
GARDNER et al. v. PIERCE
(Supreme Court, Appellate Division, First Department. April 8, 1909.)
1. BROKERS (§ 8*)-EMPLOYMENT EVIDENCE.
Evidence held not to justify a finding that plaintiffs were employed as brokers to sell a yacht for defendant.
[Ed. Note. For other cases, see Brokers, Cent. Dig. § 9; Dec. Dig. § 8.*]
2. BROKERS (§ 52*)-COMMISSIONS-WHEN EARNED.
A broker employed to procure a purchaser, to recover commissions, must bring the minds of the purchaser and owner to an agreement for a sale, and until that is done the right to commissions does not accrue.
[Ed. Note. For other cases, see Brokers, Cent. Dig. § 73; Dec. Dig. $ 52.*]
3. BROKERS (8 57*)-COMMISSIONS-WHEN EARNED.
Where a broker employed to procure a purchaser of a yacht never brought the minds of the purchaser and the owner to an agreement as to the terms of the sale, and the owner sold the property to the purchaser for $72,000 after the broker had received an offer from the purchaser of $35,000, the broker was not entitled to commissions.
[Ed. Note.-For other cases, see Brokers, Cent. Dig. § 66; Dec. Dig. § 57.*]
4. BROKERS (§ 44*)-AUTHORITY TO PROCURE PURCHASER-REVOCATION.
The authority of a broker to procure a purchaser of property may be revoked by the owner at any time before a sale is consummated, and where the revocation is in good faith the owner is not liable for the commission, though a sale is subsequently made to the person with whom the broker was negotiating.
[Ed. Note. For other cases, see Brokers, Cent. Dig. § 45; Dec. Dig. § 44.*]
5. BROKERS (§ 44*)-AUTHORITY TO PROCURE PURCHASER-REVOCATION. Where an owner employing a broker to procure a purchaser of property terminated the authority of the broker after receiving an offer from a person with whom the broker was negotiating, and subsequently dealt directly with such person and made a sale for a price over twice as much as the offer to the broker, the broker was not entitled to commissions, for his authority had been terminated in good faith and not to avoid payment of commission.
[Ed. Note. For other cases, see Brokers, Cent. Dig. § 45; Dec. Dig. § 44.*]
Patterson, P. J., and Scott, J., dissenting.
Appeal from Trial Term, New York County.
Action by William Gardner and another against Henry Clay Pierce. From a judgment for plaintiffs, and from an order denying a new trial, defendant appeals. Reversed, and new trial granted.
Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, MCLAUGHLIN, and SCOTT, JJ.
Marvin W. Wynne, for appellant.
MCLAUGHLIN, J. The plaintiffs were employed by the defendant to design and superintend for him the construction of a yacht, for which he agreed to pay them 5 per cent. of its cost. Under a
*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes