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tract was not based upon the amount of rock to be excavated. The bond given by the defendant was on condition that Blake should duly and faithfully perform and fulfill all conditions of said contract on his part to be kept and performed, and should keep harmless and protect the obligee (plaintiff) from and against all loss by reason of the nonfulfillment by Blake of the covenants contained in the said contract to be performed by him as aforesaid. The bond also contains a provision that it is issued upon the express condition that all the covenants and agreements contained in the said contract, made by the said obligee (plaintiff) and on his part to be kept and performed, for the protection of the said obligee and of said surety, shall be strictly kept and performed by the said obligee. By the contract the plaintiff was required to make certain payments upon the certificate of the engineers as the work progressed, reserving 15 per cent. of the amount of each certificate until the work was fully performed, which sum was to be paid to Blake when the certificate that the entire work was fully completed was submitted. If the plaintiff had refused to pay the various sums that became due from time to time, there would have been a breach of the contract, which would have discharged the surety. There is nothing in the contract to show that a payment in excess of the amount required to be paid to Blake was a breach of a covenant or agreement made by the plaintiff for his protection, or for that of the surety; but, if such covenant was within this provision of the bond, then payments made to Blake by the plaintiff at the express request of the surety, and to enable Blake to carry out the contract, would not discharge the surety. The plaintiff was justified in construing the contract and making the payments as requested by Blake and the surety. It seems to me that it is not a question of the modification of the original contract, because neither of the parties agreed that it should be so modified as to impose an obligation upon the plaintiff to pay anything in excess of what he undertook to pay under the original contract; but in carrying out the contract and making payments from time to time the plaintiff was justified in acceding to the request of Blake and his surety, and acting upon such request and consent, and the surety was then estopped from insisting that such payment was a violation of the contract, or discharged it from the obligation that it had assumed.

There is no evidence that these increased payments occasioned any loss to the defendant, or that if the plaintiff had reserved the 15 per cent., and had paid only the amount that was earned by Blake under the contract, that Blake would have been able to perform the contract, or that the amount that the plaintiff had to pay for its completion would have been any less than that which he was required to pay. The statement is made in the plaintiff's brief that the plaintiff had been allowed to abrogate and set aside every term of the contract that he was bound to perform, when the evidence shows that the plaintiff not only performed every obligation that he assumed under the contract, but paid to the principal an amount in excess of that which he was required to pay, and which upon no principle could have substantially injured the defendant. Sullivan, the manager of the

defendant, was not called as a witness, and there was no contradiction of any of the evidence offered by the plaintiff as to his active participation in inducing plaintiff to make the payments to Blake, and the evidence is undisputed that from the beginning Sullivan was insisting that plaintiff should make payments to Blake in excess of that provided for by the contract; that Sullivan had said that he deemed the 15 per cent. reserve a very onerous requirement, and that, if it would help him along, the plaintiff should exercise his discretion, from time to time, in making Blake allowances out of the reserve; that these excessive payments were made by the plaintiff reluctantly, and only upon the assurance of Sullivan that it would be perfectly proper to make the payments. All of these payments were made on the demand of Blake, all made with the knowledge and acquiescence or request of Blake's surety (defendant), and under such circumstances it is clear that the defendant is now estopped from asserting that these payments, made at its request and for its benefit, are a violation of the plaintiff's contract which discharges the surety.

I think that the judgment was right, and it should be affirmed. Judgment affirmed, with costs. All concur.

MITCHELL v. DUNMORD REALTY CO. et al. (Supreme Court, Appellate Division, First Department. May 7, 1909.) PLEADING (8 236*)—AMENDMENT OF COMPLAINT—INABILITY TO STATE CAUSE

OF ACTION.

Where defects in a second amended complaint have been pointed out by the court, and the allegations essential to a cause of action indicated, and another amended complaint is served which is substantially the same as the one pronounced defective, it may fairly be inferred that facts which would enable plaintiff to state à cause of action do not exist, and it is an improper exercise of discretion to permit a further amendment on granting a motion for judgment on the pleadings.

[Ed. Note. For other cases, see Pleading, Cent. Dig. $ 601; Dec. Dig. § 236.*]

Appeal from Special Term, New York County,

Action by Donald Mitchell against the Dunmore Realty Company, impleaded with John L. Murray and others. From an order permitting plaintiff to serve an amended complaint, defendant Dunmore Realty Company appeals. Reversed.

See, also, 60 Misc. Rep. 563, 112 N. Y. Supp. 659.

Argued before INGRAHAM, McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ.

W. B. Symmes, Jr., for appellant.
Walter H. Dodd, for respondent.

MCLAUGHLIN, J. Action to foreclose a mechanic's lien upon certain real property in the city of New York owned by the Dunmore Realty Company and leased to the defendant Murray. The notice of

lien was filed in July, 1907. A demurrer was interposed to the original complaint by the Dunmore Realty Company, which was sustained with leave to amend. Thereafter an amended complaint was served, which was also demurred to by the realty company. The demurrer was overruled, and an appeal taken to this court', where the interlocutory judgment was reversed and the demurrer sustained (Mitchell v. Dunmore Realty Co., 126 App. Div. 829, 111 N. Y. Supp. 322) with leave to serve an amended complaint. The second amended complaint was then served, and the realty company, having interposed an answer thereto, moved under section 547 of the Code of Civil Procedure for judgment upon the pleadings. The motion was granted, and plaintiff given leave to serve an amended complaint on payment of $10 costs. The realty company appeals from so much of the order as gives the plaintiff this leave.

On the prior appeal to this court Mr. Justice SCOTT, who delivered the opinion, pointed out the defects in the amended complaint which was then under consideration, and indicated what facts would have to be stated in a complaint in order to set forth a cause of action. The suggestions made were not followed, but, instead, an amended complaint was served, which, in legal effect, was substantially the same as the one which this court had pronounced defective. From this it is fairly to be inferred that facts do not exist which will enable the plaintiff to draw a complaint which will state a cause of action; otherwise the suggestions of this court would have been followed, and the defects cured which existed in the complaint which was pronounced bad. Where a plaintiff has served three complaints, each of which the court has held did not state a cause of action, he should not be permitted to serve a fourth one, unless facts are set forth from which the court can see that the plaintiff has a cause of action and some explanation given why said facts have not theretofore been pleaded. Here, not a single fact was stated to the court, so far as appears from this record, indicating that the plaintiff had a cause of action, and therefore there was nothing to justify the court in exercising its discretion in allowing the plaintiff to serve a fourth complaint.

It follows that so much of the order as allows plaintiff to serve an amended complaint is reversed, with $10 costs and disbursements to the appellant.

INGRAHAM, CLARKE, and SCOTT, JJ., concur.

LAUGHLIN, J. (concurring). I concur in the result, but solely upon the ground that, where a motion is made for judgment on the pleadings, pursuanť to the provisions of section 547 of the Code of Civil Procedure, and no counter motion is made by the party whose pleading is thus brought in question for leave to amend on sufficient papers, the court is not, I think, authorized to allow an amendment. The court in the interests of justice, where it appears on such motion probable that the facts, if fully and properly pleaded, would present

a meritorious case or defense, may doubtless postpone or stay the entry of judgment upon its decision for a reasonable time to enable the party to move at Special Term for leave to amend; but on such motion all requirements of our practice applicable to such an application in other cases should be complied with. That is not the course that was followed here. The court held that, on the pleadings as they stood, the defendant was entitled to judgment dismissing the complaint, and then without any application therefor, by counter motion or otherwise, granted leave to the plaintiff to amend. The court doubtless proceeded upon the theory that such motion should be treated as a demurrer. In this I am of opinion that the learned court erred. The Legislature intended, I think, to authorize such motion at Special Term, in advance of the trial, the same as if made upon the trial according to the prior practice. If a complaint in equity were dismissed at the opening of the trial, according to the prior practice there would be no authority on the part of the Special Term for the trial of issues of fact to grant an amendment materially changing the cause of action or adding a new one. Such leave could only be obtained at a Special Term for motions. If the motions were made at a trial term for trial of issues of fact, the court could not grant leave to amend, but might permit the withdrawal of a juror with a view to enabling a party to apply at Special Term for leave to amend.

In all such cases it would be necessary for the party to show a proper case under the rules and practice, which involves an explanation as to why the pleading was not originally drafted in its proposed amended form, to warrant the court in allowing the amendment at Special Term.

FLANAGAN v. MCDERMOTT DAIRY CO. et al.

(Supreme Court, Appellate Division, First Department. May 7, 1909.) LIBEL AND SLANDER ($ 6*)IMPUTATION OF DISHONESTY,

An action against a corporation and its superintendent for libel was based on a letter addressed by him to a third person, saying that es. perience was worth a million dollars, and that he would know better in the future not to give a man that had no more honor than to expect every new man he broke in to treat him to a glass of booze or turn him down as incompetent, and that if he was an advocate of rum to stick to Flanagan (the plaintiff). Held, that the letter was not libelous per se, and that a demurrer to the complaint on the ground that it did not state a cause of action should have been sustained.

[Ed. Note.--For other cases, see Libel and Slander, Cent. Dig. $§ 3-16; Dec. Dig. § 6.*] Appeal from Special Term, New York County.

Action by Harry J. Flanagan against the McDermott Dairy Company and another. From an interlocutory judgment overruling a demurrer to the complaint, defendants appeal. Reversed.

Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, MCLAUGHLIN, and CLARKE, JJ.

John De Witt Warner, for appellants.
Maurice L. Heidenheimer, for respondent.

INGRAHAM, J. The action is for a libel contained in a letter written by the defendant Johnson, dated April 10, 1908, addressed to one M. Murphy, and is as follows:

“My Good Sir: Experience is worth a million dollars. I will know better in the future not to give a man that has no more honor than to expect every new man he breaks in to treat him to a glass of booze or turn him down as incompetent. If you are an advocate of rum, stick to Flanagan. Believe me when I sign myself, "Yours very truly,

H. M. Johnson."

The complaint alleges that the defendant corporation is a domestic corporation, doing business in the state of New York; that the defendant Johnson was employed by the corporation as superintendent, and as such was in charge or control of, or supervised, the business of the defendant corporation; that on the 21st day of March, 1908, the defendant corporation, by the defendant Johnson, its superintendent, and the defendant Johnson, wrongfully, willfully, and maliciously wrote and published the letter of and concerning the plaintiff to one M. Murphy in the city of New York; that the said letter and libelous statement was written and published by the defendant Johnson in his capacity as superintendent of the defendant corporation, and was written and published for the purpose of aiding and benefiting the said defendant corporation in the conduct of its business, and more particularly to influence, through its terms and through the statements as to the plaintiff's habits and conduct, the said Murphy, and to retain the custom and trade of the said Murphy' for the defendant corporation; that the plaintiff was and still is in the employ as driver of the Thorndale Farms, who is in the milk business, and has covered the same territories and sold milk to persons in the same localities as the branch of the defendant corporation; and that the said libel was published by the defendant for the purpose and with a view that it would be spread among the customers of the plaintiff, who was formerly employed by the defendant corporation; and the complaint demands judgment for the sum of $20,000. The defendants demur separately to this complaint upon the ground that it does not state facts sufficient to constitute a cause of action.

It is quite evident that no cause of action is alleged against the defendant corporation. It is not alleged that the defendant Johnson was employed or authorized by the corporation to write such a letter. Johnson's employment by the defendant corporation as superintendent gave him no authority on behalf of the corporation to libel others. It is not alleged that this letter was written in relation to the business of the corporation, that the plaintiff was ever employed by the corporation to break in new men, or that he ever turned down any new man as incompetent. The allegation of the complaint that the letter was written and published by Johnson in his capacity as superintendent of the defendant corporation could not bind the corporation, unless Johnson occupied such a relation to it as made the defendant

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