« ΠροηγούμενηΣυνέχεια »
Dyke v. N. Y. State Banking Co., 18 Misc. Rep. 661, 43 N. Y. Supp. 735; Kloh v. N. Y. Fertilizer Co., 86 Hun, 266, 33 N. Y. Supp. 343; Oliver v. French, 82 Hun, 436, 31 N. Y. Supp. 740.
As to the second objection, defendant, having excepted to the sureties on the undertaking herein, has waived all irregularities in the affidavit on which the requisition is founded. Hyde v. Patterson, 1 Abb. Prac. 218; Wisconsin Marine & Fire Ins: Co. Bank v. Hobbs, 22 How. Prac. 494.
Motion denied, no costs, with leave to the defendant to make such nther motion as he may be advised. Settle order on one day's notice.
SPATZ V. SINGER et al.
(City Court of New York, Trial Term. January, 1909.) 1. NEW TRIAL ($ 26*)-GROUNDS-STATUTE OF FRAUDS.
Where, in an action for breach of a contract of employment for one year, beginning at a future time, by wrongful discharge, the statute of frauds was not raised as a defense by the pleadings, nor at the trial, it is not before the court on motion to set aside a verdict for the employé.
(Ed. Note.-For other cases, see New Trial, Cent. Dig. $ 37; Dec. Dig.
26.*] -2. MASTER AND SERVANT (8 3*) — CONTRACT OF EMPLOYMENT - OFFER AND AC
A writing stating that it is to certify that first parties thereby employed second party as foreman and sample maker, if not a contract, because not binding second party to perform, may be regarded as a promise to employ second party, and his acceptance of it, by entering on his duties, established a contract, entitling him to sue for a wrongful discharge.
(Ed. Note.-For other cases, see Master and Servant, Dec. Dig. $ 3.*]
Action by Sam Spatz against Saul Singer and others. Verdict for plaintiff, and defendants move to set the same aside. Motion denied.
Manheim & Manheim, for plaintiff.
FINELITE, J. This is a motion to set aside a verdict in favor of the plaintiff for $358.58 on the ground that it is contrary to the law and contrary to the evidence. The action is to recover damages for the breach of a contract of employment. The evidence is to the effect that on August 11, 1906, the parties hereto met and discussed the entry by plaintiff into the employ of the defendants as foreman and sample maker for the term of one year commencing August 13, 1906. After this conversation a writing (Plaintiff's Exhibit 1) was executed in duplicate, and interchangeably delivered, of which the following is a copy:
"Singer Bros., Cloaks & Suits, 29 East 10th Street, New York, August 11, 1906. This is to certify that Singer Bros., parties of the first part, do hereby employ Sam Spatz, party of the second part, as foreman and sample maker, for one year, beginning Monday, August 13, 1906, at a salary of nineteen (19) dol. lars per week.
The plaintiff thereupon entered upon his duties of foreman and sample maker, in the employ of the defendants, on August 13, 1906, and so continued up to and including February 16, 1907, when the defendants, without cause, as found by the jury, discharged him. The defendants contend that the verdict is contrary to the law and contrary to the evidence, as the exhibit, above set forth, is not a contract, but a promise only on their part, without consideration, and, therefore, not binding on them. To support this position they cite the cases of Rafalowitz v. American Tobacco Co., 73 Hun, 89, 25 N. Y. Supp. 1036; Burnet v. Bisco, 4 Johns. 235; Chicago, etc., R. R. v. Dane, 43 N. Y. 240-243; Jackson v. Alpha Portland Cement Co., 122 App. Div. 345, 106 N. Y. Supp. 345; Commercial Wood & Cement Co. v. North Hampton P. C. Co., 115 App. Div. 388, 100 N. Y. Supp. 960, and Quick v. Wheeler, 78 N. Y. 300.
In the Chicago, etc., R. R. Case the defendant's letter, offering to receive from the plaintiff and transport from New York to Chicago railroad iron, and plaintiff's answer thereto, “In behalf of this company I assent to your agreement and will be bound by its terms,” was held to be merely an assent by the plaintiff to the proposal of the defendant, and not a promise on the former's part to deliver any iron for transportation. To like effect is Commercial Wood & Cement Co. v. North Hampton P. C. Co., where the written contract sued upon, purporting to make the plaintiff the defendant's selling agent, obligated the defendant to pay plaintiff a certain sum, and, although imposing certain obligations on the defendant, failed to impose any obligation on the plaintiff, and was held to be void for lack of consideration. In accord with this view is Quick v. Wheeler, supra, where the fact that the writing, whereby the defendant agreed to pay plaintiff a stipulated sum for a quantity of timber, to be delivered at a certain place, was signed by both parties, did not supply the lacking element, as there was no obligation on the part of the plaintiff contained in said writing. The other cases cited, and many others of like tenor, are a unit in declaring that, where the written promise is met with assent or acquiescence only, but not with any promise to perform or do anything which created an obligation on the assenting party, there is no mutuality. There is not that consideration which mutual promises give a contract.
Even though this construction be placed upon the exhibit, to which I am constrained to incline, yet independent of it there is evidence of an oral contract by which the defendants agreed to employ the plaintiff, and plaintiff agreed to work for the defendants as foreman and sample maker for the term of one year, beginning at a future time, at a stipulated wage, and the exhibit may be regarded as confirmatory of defendants' oral promise previously made. To this agreement the statute of frauds is undeniably applicable; but, as that question was not raised at the trial, nor by the pleadings, it is not before me. And so, also, may the exhibit be regarded as a promise of the defendants to employ the plaintiff, and the plaintiff's acceptance of such an offer by his entering upon his duties and performing the con
tract until he was prevented from completing it by the acts of the defendants, in discharging him wrongfully, as found by the jury.
In accepting any of these views presented by the evidence a contract was established sufficient to support the verdict, and the motion to set the same aside denied, to which the defendants may have an exception, with 10 days' stay of execution after notice of entry of judgment and 30 days to make and serve a case.
GENNINGER V. FRANK A. WAHLIG CO. et al.
(City Court of New York, Trial Term. January, 1909.) 1. PLEADING (8 121*)-ANSWER-DENIAL OF KNOWLEDGE OR INFORMATION SUF.
FICIENT TO FORM A BELIEF.
Under Code Civ. Proc. $ 500, subd. 1, providing that the answer must contain a general or specific denial of each material allegation of the complaint controverted by defendant, or of any knowledge or information thereof sufficient to form a belief, denials of any “information" suiticient to form a belief are insufficient; there being no statement as to defendant's knowledge.
(Ed. Note.-For other cases, see Pleading, Cent. Dig. $8 245–248; Dec.
Dig. $ 121.*] 2 MECIIANICS' LIENS ($ 228*) — DISCHARGE-BOND-ACTION-CONDITIONS PRE
CEDENT-JUDGMENT AGAINST PROPERTY.
The remedy to enforce the obligation of a surety on a bond given to discharge a mechanic's lien, and conditioned for the payment of any judgment which may be rendered against the property, is not by an action at law on the bond, but by an action in equity, in which all persons interested, including the surety, are made parties; and it is not a condition precedent to the bringing of the action that the lienor exhaust his remedy against the landowner by recovering a judgment of foreclosure in form against the property described in the notice of lien.
[Ed. Note.-For other cases, see Mechanics' Liens, Dec. Dig. § 228.*]
Action by Frank Genninger against the Frank A. Wahlig Company and another. Motion for judgment for plaintiff on the pleadings granted.
Bernard J. Kelly, for plaintiff.
FINELITE, J. This is an action to foreclose a mechanic's lien. The plaintiff by his complaint in substance alleges that heretofore, and on or about the 23d day of March, 1906, the defendant Frank A. Wahlig Company entered into an agreement with the plaintiff's assignor whereby it was agreed that the plaintiff's assignor should perform labor, to wit, excavating, at the rate of 60 cents per yard upon the premises minutely described in the complaint, which premises belonged to the defendant Wahlig Company. The plaintiff claims that 250 yards of excavating was done, the cost of which amounted to $150. The complaint further alleges the filing of a mechanic's lien within 90 days after the completion of the contract in the form and manner prescribed by law in the office of the clerk of the county of New York, and thereaft
er the defendant Wahlig Company was served with a copy of said lien, and that said lien was duly assigned for a valuable consideration before the commencement of this action to the plaintiff herein. The complaint further sets forth that on the 3d day of July, 1907, the defendant Wahlig Company filed with the clerk of the county of New York a bond, duly executed by it, together with the defendant National Surety Company as surety, in the amount fixed by the Supreme Court, "conditioned for the payment of any judgment which might be rendered against the said property" in any action brought by the plaintiff's assignor; that said bond was approved by a justice of the Supreme Court, and after filing an order was duly made by the court discharging the said lien. The complaint then demands judgment for the sum of $150, with interest from April 9, 1906.
The defendant National Surety Company in the first paragraph of its answer "denies any information sufficient to form a belief as to the allegations contained in paragraphs I, II, III, IV, V, VI, VII, and VIII of the complaint, excepting that it is a domestic corporation.” In paragraph II of its answer it admits that it, together with the Wahlig Company, executed the bond for the cancellation of the said lien, and “denies any information sufficient to form a belief as to all of the allegations contained in paragraph IX of the plaintiff's complaint.” In paragraph III of its answer it sets up a further defense in substance that the said plaintiff did.not recover judgment, issue execution, nor in any wise make effort to take measures, legal or otherwise, to establish the liability of the defendant Wahlig Company.
The defendant Wahlig Company in paragraph I of its answer admits paragraphs I, IV, V, and VII of the said complaint, excepting, as to paragraph IV, said defendant “denies that there was any contract," and further “denies any information sufficient to form a belief as to whether the notice (of lien) was duly verified and complied with the requirements of the statutes of the state of New York." In paragraph II of its answer it “denies any information sufficient to form a belief as to the truth of the allegations contained in paragraphs II, III, VI, and VIII of the complaint." In paragraph III of its answer it admit's the execution of the bond as set forth in paragraph IX of the complaint, but "denies any information sufficient to form a belief as to all of the other allegations contained in said paragraph."
Upon the case being called for trial the plaintiff moved for judgment on the pleadings on the grounds that the defendant's have not raised any issue by their respective answers interposed by them, and the denials contained therein are insufficient, and that the alleged separate defense of the defendant National Surety Company is frivolous. I am impelled to the conclusion that the plaintiff is entitled to judgment on the pleadings. The denials in the answer of "any information sufficient to form a belief as to the allegations of the complaint” are insufficient. It should have been "of any knowledge or information sufficient,” etc. In such case the allegation of the complaint must be taken as true. Section 500 of the Code of Civil Procedure, subd. 1, provides "that the answer must contain a general or specific denial of each material allegation of the complaint controverted by the defendant or of
any knowledge or information thereof sufficient to form a belief." The denials in the answer do not comply with this section of the Code. There is no statement as to the defendant's knowledge, and the denials are therefore not sufficient to put at issue the allegations of the complaint. It should have averred "no knowledge or information," etc. Lloyd v. Burns, 38 N. Y. Super. Ct. 423, affirmed in 62 N. Y. 651; Hauteman v. Grey, 5 N. Y. Civ. Proc. R. 224; Steinback v. Diepenbrock, 52 App. Div. 437, 65 N. Y. Supp. 118. The allegations, not being properly denied, must be taken as true. Code Civ. Proc. $ 522.
The affirmative defense set up in the answer of the surety company is frivolous. It alleges that the plaintiff did not exhaust his remedy by action against the defendant Wahlig Company and recover judgment therein against the property described in the notice of lien. This is unnecessary. The remedy to enforce the obligation of the surety to such a bond as given in this action is not by an action at law upon the bond, but by an action in equity, in which all persons interested, including the surety on the bond, are made parties; and it is not a condition precedent to the bringing of the action that the lienor shall exhaust his remedy against the landowner by recovering a judgment of foreclosure in form against the property described in the notice of lien. It has been held that the complaint in such an action should be in the usual form of a complaint in an action to foreclose the lien, with the exception that it should allege the giving of the bond and the consequent discharge of the lien, and instead of asking judgment for the sale of the premises iť should demand relief against the persons executing the bond for the amount that shall be determined to be payable on the lien, all of which the complaint herein sets forth. Morton v. Tucker, 145 N. Y. 244, 219, 40 N. E. 3. I believe that substantial justice will be meted out by granting the plaintiff's motion.
The motion for judgment for plaintiff on the pleadings is therefore granted. Settle findings and judgment on notice.
HUNTINGTON v. RODGERS. (City Court of New York, Special Term. March 5, 1909.) 1. COURTS ($ 189*)--CITY COURTS-NEW TRIAL-GROUNDS-INADEQUACY OF DAW:
If the damages awarded plaintiff in an action in the City Court of New York were inadequate, that court properly set aside the verdict and awarded a new trial.
(Ed. Note.-For other cases, see Courts, Dec. Dig. 8 189.*] 2. COURTS ($ 190*)-CITY COURTS-APPEAL-STAY OF PROCEEDINGS.
While the Trial Term of the City Court of New York could set aside a verdict for plaintiff for inadequacy of damages, and grant plaintiff will be stayed from proceeding further until the Appellate Term of the Supreme Court determines, on defendant's appeal from the order setting aside the verdict, whether the Trial Term of the City Court bad that power, on condition that the appeal be argued at the next term; plaintiff not being prejudiced by granting the stay.
[Ed. Note.-For other cases, see Courts, Dec. Dig. $ 190.*]