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HOCHBERGER V. LUDVIGH.

(Supreme Court, Appellate Term. May 7, 1909.) RECEIVERS (3 174*)-ACTIONS_RIGHTS OF ACTION AGAINST RECEIVERS.

Where the owner of a bank deposit assigns it to plaintiff, who notifies the bank, and subsequently a part of the deposit is paid to a receiver ap pointed for the depositor after the assignment of the deposit, plaintiff, after leave of court, may sue the receiver for the recovery of the amount under an implied assumpsit, instead of intervening in the original action by motion; but his action in suing the defendant will release the bank.

(Ed. Note.—For other cases, see Receivers, Cent. Dig. && 333-343; Dec. Dig. & 174.*] Appeal from City Court of New York, Trial Term.

Action by Isidor Hochberger against Elek J. Ludvigh. From a judgment dismissing the complaint, plaintiff appeals. Reversed.

Argued before GILDERSLEEVE, P. J., and DAYTON and GOFF, JJ.

Rosenthal, Steckler & Levi, for appellant.
Albert Flack, for respondent.

GOFF, J. This is an appeal by plaintiff from a judgment of the City Court, which dismissed the complaint upon the opening. The facts are not disputed. The complaint alleges that one Eisen assigned a $500 bank deposit to plaintiff, who gave notice to the bank of such assignment. More than 342 months later defendant was appointed receiver in supplementary proceedings, by an order of the City Court, of Eisen. The bank was at once notified of the appointment, and at the end of some 3 more months paid $250 of Eisen's deposiť to defendant, who took it in his capacity as receiver, without knowledge of the prior assignment. Plaintiff notified defendant of his interest, and demanded payment of the amount, which was refused. He then secured an order from the court authorizing him to bring an action against the receiver for the recovery of the amount. No tort is alleged; the action being against the receiver in his official capacity, on the theory of an implied assumpsit to pay the money to plaintiff in lieu of the older remedy of intervening in the original action by motion.

According to the undisputed authorities plaintiff "may ignore the payment and sue the trustee as his debtor, or he may ratify and adopt the payment and sue the person receiving the money as his debtor, but he cannot do both." Fowler v. Bowery Savings Bank, 113 N. Y. 450, 455, 21 N. E. 172, 4 L. R. A. 145, 10 Am. St. Rep. 479. In that case the bank had paid the money to the executor of J., when it belonged to the executor of J.'s wife. The latter obtained judgment against J.'s executor; but, failing of execution, he brought a second action against the bank, which had held the money in trust for the wife. That first action was brought against an officer of the court, as in the case at bar; nor does it appear that he was such other than in his representative capacity. On the contrary, in his exhaustive opinion, Mr. Justice Earl says:

"By suing Flynn (J.'s executor] he would adopt and ratify the act of the bank in making payment to him, and his claim would be that the money due to him had in fact been paid to Flynn, and that Flynn had received it to and for his use."

The case cited is closely analogous to the one at bar and is clearly controlling. Defendant has utterly failed to advance any reason why any other course should be followed. Defendant is not placed in the position of being compelled to pay out money without an order from the court of which he is an officer. On the contrary, he voluntarily assumes the position of questioning an order of that same court, which in effect directed this action to be brought for the purpose of determining the title to the sum in question. Although it was optional with plaintiff to sue the bank or defendant, by choosing the latter he released the bank, and thus happily prevented a multiplicity of actions.

For these reasons, the judgment of the lower court must be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

ANTES V. MANHATTAN RY. CO. et al. (Supreme Court, Special Term, New York County. May 6, 1909.) 1. COVENANTS (8 103*)-RESTRICTIVE COVENANTS-USE OF PREMISES.

In an action for damages by operation of defendant's elevated road, it appeared that the parties derived title from a common source, and that a covenant against offensive establishments was referred to in several conveyances; but though, in a number of deeds, prior to and since defendant's road was constructed in 1887, no reference was made to the covenant, it appeared in a deed 'to plaintiff, executed in 1905, at which time the railroad had been in operation for about 18 years, but the property in the immediate neighborhood had been changed to a factory section and ceased to be used for residential purposes. Held, that enforcement of the covenant would be inequitable.

[Ed. Note.-For other cases, see Covenants, Dec. Dig. $ 103.*] 2. COVENANTS (8 122*)--RESTRICTIVE COVENANTS-USE OF PROPERTY-DAM

AGES-EVIDENCE.

Evidence held insufficient to show damages in an action for breach of covenant in a deed against the use of premises for offensive establishments.

[Ed. Note.-For other cases, see Covenants, Dec. Dig. $ 122.*] Suit by Paula Antes against the Manhattan Railway Company and another for injunction and damages to easement and breach of covenants in deeds. Findings for plaintiff for nominal damages only.

Banton Moore (Chas. H. Strong, of counsel), for plaintiff.
A. A. Gardner, for defendants.

NEWBURGER, J. This is an action to recover damages by reason of the operation of an elevated road by defendants. The railway is not constructed along the street, but on private property of the defendants, on their own right of way, and crosses 133rd street alongside of plaintiff's property. The road was built in 1887. The street in front of plaintiff's property is 100 feet wide. The plaintiff's property *For other cases see same topic & S NUMBER In Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

is known as “No. 361 Southern Boulevard.” The lot is 20 by 100 feet and is covered by a four-story brick building, used as a store on the ground floor and apartments on each of the floors above. The house was built in 1882.

It is contended by the plaintiff that, although the defendants operate their railway upon their own land, she is entitled to damages by reason of a covenant against offensive establishments. While it is true that plaintiff and defendants derived title to their respective lands from a common predecessor in title, and although the covenant is referred to in several conveyances, yet in a number of deeds prior to and since the road was constructed no reference is made to the covenant. It appears, however, in the deed from Bartels to the plaintiff, executed in 1905. At that time, not only had the road been in operation for about 18 years, but the property in the immediate neighborhood had been changed to a factory section and ceased to be used for residential purposes. To attempt to enforce a covenant of this kind under these circumstances would be inequitable.

As to the damages either to the fee or rental value of plaintiff's property by reason of the operation of the road, the plaintiff has failed to make out a case. Plaintiff's expert (Swartwout) testified that manufactories were coming in the neighborhood right' along from 1875 to the present time, and that the Southern Boulevard, both north and south sides, from Alexander avenue west, is a manufacturing center. It is apparent that whatever change took place in the neighborhood cannot be ascribed to the operation of the defendants' railroad.

The plaintiff is entitled, however, to nominal damages for the maintenance and operation of that portion of the south-bound track as interferes with plaintiff's easements of light and air.

Findings passed upon.

DALY V. NEW YORK CITY RY. CO. (Supreme Court, Appellate Division, Second Department. May 7, 1909.) STREET RAILROADS ($ 98*)—CONTRIBUTORY, NEGLIGENCE OF PERSON INJURED.

Plaintiff, who attempted to cross a 'street without looking to see where a car on the further side of the street was, and was struck by that car, held guilty of contributory negligence.

(Ed. Note.—For other cases, see Street Railroads, Cent. Dig. $8 207, 208; Dec. Dig. $ 98.*]

Appeal from Special Term, Westchester County.

Action by Walter Daly against the New York City Railway Company. Motion for nonsuit was granted at the close of all the evidence, and plaintiff appeals. Affirmed.

Argued before HIRSCHBERG, P. J., and GAYNOR, BURR, RICH, and MILLER, JJ.

Charles F. Dalton and Edward J. Larkin, for appellant.
Bayard H. Ames and Walter Henry Wood, for respondent.

HIRSCHBERG, P. J. The nonsuit was proper under the authorities. The plaintiff, accompanied by his wife, was injured in the borough of Manhattan on the evening of December 25, 1903. They had just arrived in the city of New York, on their way from Roxbury Station, Conn., to visit a daughter in Paterson, N. J. They boarded a Fourth avenue car at Forty-Second street, and left it at the southwest corner of Twenty-Third street and Fourth avenue. They intended to take a West Twenty-Third street ferry to New Jersey, and for that purpose attempted to cross to the north side of Twenty-Third street to board a west-bound car. Standing on the sidewalk, the plaintiff looked east for the car he desired to board, but saw none. He then looked west, and saw a car east-bound. He let that car pass, looked east again, and saw a west-bound car on the north track at the northeast corner of the streets and at a distance of about 75 or 100 feet from where he stood. He then looked west again, and, finding his way safe over the nearest or east-bound tracks, attempted to cross, walking on the crosswalk. He did not look east again after leaving the sidewalk, and when he reached the farthest or north track in Twenty-Third street was struck by the west-bound car, which he had seen while standing on the sidewalk. The car was going very rapidly.

In this state of facts, the counsel for the appellant insists that there should be a reversal, mainly on the theory of Lofsten v. Brooklyn Heights R. R. Co., 97 App. Div. 395, 89 N. Y. Supp. 1042. That case, however, was reversed in the Court of Appeals (184 N. Y. 148, 76 N. E. 1035); that court holding in similar circumstances that the injured person must be deemed guilty of contributory negligence as matter of law. Tully v. N. Y. City Ry. Co., 127 App. Div. 688, 111 N. Y. Supp. 919, is a case where the plaintiff, about to cross the Bowery, in the borough of Manhattan, at Bleecker street, looked up and down before attempting to cross, and saw a car about two blocks away, coming very fast. She proceeded to cross the street without looking again, and while leaving the track was struck by the car which she had seen. It was held that a pedestrian, seeing an approaching car while attempting to cross a street, must, before stepping on the track, ascertain whether or not it was safe to do so, and that a refusal of the court to charge that she was required, after leaving the curb, to look again before she tried to cross the track, was error.

Under these decisions, and the cases cited in the opinions written in them, it must be deemed the settled law in this state that it was negligence on the part of the plaintiff herein to step upon the northbound track in Twenty-Third street without first looking for the car which he had seen approaching when he was on the sidewalk.

The judgment should be affirmed.
Judgment affirmed with costs. All concur.

FRANK V. FIRESTONE.

(Supreme Court, Appellate Division, Second Department. May 7, 1909.) 1. APPEAL AND ERROR (8 1009*)-REVIEW-FINDINGS OF Fact.

Findings in an equity case will not as a rule be disturbed, though there is a sharp conflict in the evidence.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. $$ 3970

3978; Dec. Dig. 1009.*] 2. TRUSTS (8 354*)-ESTABLISHMENT—FOLLOWING TRUST FUND.

Jurisdiction to declare a trust in a fund is not taken away by defendant's investing it in other property.

[Ed. Note.—For other cases, see Trusts, Cent. Dig. $8 527, 528; Dec. Dig. $ 354.*] Appeal from Special Term, Kings County.

Action by Seamon Frank against Adolph Firestone. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued before WOODWARD, JENKS, GAYNOR, RICH, and BURR, JJ.

Isador Silver, for appellant.
Thomas C. Larkin, for respondent.

WOODWARD, J. The plaintiff brings this action in equity to establish the existence of a trust relation between the parties growing out of certain real estate transactions and for an accounting by the defendant respecting the proceeds thereof. The plaintiff's cause of action is based upon the theory that he had contracted for two certain parcels of real estate, intending to sell them to a real estate company by which he was employed as a sales manager upon a commission basis; that for reasons of his own he employed the defendant, for a consideration of $100, to act as a dummy in the transaction, the plaintiff furnishing all of the money; that the defendant entered into the arrangement and became the nominal party to the contracts which were entered into, resulting in a profit of over $2,000, which sum the defendant has failed to pay over to the plaintiff. The theory of the defendant is that he was the real principal in the transaction; that he repaid the plaintiff the sums which the latter had loaned to carry out the deals, together with a commission of $300; and that the plaintiff has no standing in the action. There was a sharp conflict in the evidence; but it cannot be said that there is not evidence to support the plaintiff's version, and under such circumstances appellate courts do not, as a rule, interfere.

It is urged with great persistency that the documentary evidence wholly contradicts the oral evidence, and that the weight of evidence is with the defendant. While it is true that upon its face the documentary evidence, unexplained, would seem to support the defendant's contention, we are of the opinion that in connection with the entire case there is no irreconcilable difference, and that the learned court below was fully justified in its conclusion.

The suggestion that the defendant, having invested the fund in other real estate, has taken away the jurisdiction of the court to declare a

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