"That the said defendant S. M. Flickinger Company, Inc., declined to receive or pay for the said sugar, and denied that the defendants Lamborn & Co. had authority to enter into the aforesaid agreement on its behalf."

It is then averred that the sugar was resold at a total damage to the plaintiff of $6,118.85, being the difference between the contract price and the sum realized upon the resale, plus the cost of effecting same. Judgment is demanded against both defendants in the sum of $6,118.85, with interest.

Under former rules of pleading, it is apparent that this complaint would have been open to demurrer, for it neither asserts nor denies that the Lamborn Company had authority to act for the Flickinger Company, Inc. Therefore it would have been open to attack by both the defendants, since under no theory set forth in the complaint could both defendants have been liable. But this has been entirely changed by the new Civil Practice Act, in the effort to avoid multiplicity and circuity of actions. Section 213 of the Civil Practice Act now provides:

"Where the plaintiff is in doubt as to the person from whom he is entitled to redress, he may join two or more defendants, to the intent that the question as to which, if any, of the defendants is liable, and to what extent may be determined as between the parties."

Singularly enough, the reviser's note covers this identical case, and quotes the following illustration for the reason for the above provision as given in the notes to the English Practice Rules from which it is taken (English Rules of Supreme Court 1883, order 16, rule 7):

"The typical case for the application of the rule, which is of most frequent occurrence in practice, is where a person, assuming to act as agent for a disclosed principal, makes a contract with plaintiff, the breach of which gives rise to the action. The principal repudiates the agent's authority. Plaintiff is in the dark as to the authority of the agent. He may join both principal and agent under this rule, claiming against the principal such relief as he may be entitled to upon the footing that the agent had the authority which he assumed to have, and alternatively claiming against the agent damages for breach of warranty of authority."

Thus, in the case under consideration, the complaint sets forth all the essential facts entitling plaintiff to damages to be recovered from one of the defendants. If Lamborn & Co. had authority to represent the Flickinger Company, the recovery will be against the latter; if it had no such authority, the recovery will be against the former. This is what the section in question contemplated; so that a complaint setting forth facts under which either one of two defendants must be held liable is immune to motion in the nature of demurrer by either. It is enough if facts are pleaded, under which two alternatives exist, the proof of either of which will result in holding one of the defendants liable. It is not necessary that both should be liable; otherwise, there would be no necessity for the change in the rule of pleading.

Nor is it necessary for plaintiffs to specifically plead that the agent did, or did not, have authority to represent his principal in the transaction complained of. It is enough to plead that the agent represented that he had authority, and that the principal thereafter repudiated the

same.

(202 N.Y.S.)

The second point raised by appellants, that there is an existing final judgment rendered on the merits, determining the same cause of action, is, in my opinion, without basis, and does not call for discussion. The order appealed from should therefore be affirmed, with $10 costs and disbursements.

Order affirmed, with $10 costs and disbursements, with leave to the defendants appellants to answer within 20 days from service of order, upon payment of said costs and $10 costs of motion at Special Term. Order filed. All concur.

AMSTERDAM CITY NAT. BANK v. OLMSTEAD et al. (two cases). (Supreme Court, Appellate Division, Third Department. September 28, 1923.) Costs 32(3)-Not allowed plaintiff as to successful defense.

Where plaintiff did not succeed as to a defense interposed, it should not be made the basis for an allowance to plaintiff.

Appeal from Special Term, Montgomery County.

Two separate actions by the Amsterdam City National Bank against John W. Olmstead and others. From an order in each case, fixing costs, the named defendant appeals. Orders reversed, and allowance reduced.

PER CURIAM. Orders reversed, without costs, and allowance reduced to $200, on the ground that, the plaintiff not having succeeded as to the defense interposed, the same should not be made the basis for an allowance to it, and on the further ground that the discretion of the court was improperly exercised.

COCHRANE, P. J., and HENRY T. KELLOGG, VAN KIRK, HINMAN, and McCANN, JJ., concur.

(207 App. Div. 143)

FAILLACE et al. v. VILLAGE OF MAMARONECK. (Supreme Court, Appellate Division, Second Department. November 16, 1923.) Municipal corporations 366-Notice of election to terminate contract held sufficient.

Where a contract for the construction of a sewage disposal plant for a village provided that, if the contractor failed to prosecute the work with promptness, the village on five days' notice could take over and complete the work at contractor's expense, written notices that the work was unsatisfactory and dilatory, and that the village would take possession and complete the contract, held amply sufficient, without pointing out the default with greater particularity.

Appeal from Supreme Court, Westchester County.

Action by Antonio S. Faillace and others, a copartnership, against the Village of Mamaroneck for breach of contract. From a judgment on the verdict of a jury for $44,252.66, and from an order denying its

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

motion for a new trial, defendant appeals. Judgment and order reversed, and new trial'granted.

Argued before KELLY, P. J., and RICH, JAYCOX, MANNING, and YOUNG, JJ.

Henry R. Barrett, of White Plains (Anthony Sansone, of New York City, on the brief), for appellant.

Henry K. Heyman, of New York City (Frederick P. Close, of White Plains, on the brief), for respondents.

MANNING, J. The plaintiffs, who are general contractors, brought this action against the defendant village, for which they were building a sewage disposal plant. In their complaint two causes of action were set forth: First, for damages suffered by the plaintiffs because the defendant, as they claim, unlawfully ousted the plaintiffs and prevented them from completing their work under a contract which they had with the village. The second cause of action is for damages claimed for the alleged unlawful act of the defendant in taking possession of plaintiffs' material and equipment, which were on the work at the time of the alleged ouster. The answer of the defendant is, in substance, a general denial.

There is no dispute concerning the main facts in this controversy, and the sole question before us on this appeal has to do with the correctness of the rulings made by the learned trial justice in reference to the sufficiency and legal effect of a notice or notices served upon the plaintiffs by the defendant, terminating the contract between the parties on the alleged ground that the plaintiffs were unreasonably delaying the prosecution of the work. The contract bears date June 3, 1922. By its terms the work called for was to be commenced within 10 days after that date. There was also a condition in the contract that the rate of progress of the work should be such that pumps and screens and sufficient piping to by-pass the screened sewage to the outfall should be completed not later than December 15, 1922, and that the whole work should be finished not later than April 15, 1923.

It appears that the plaintiffs began work in the latter part of July, 1922, and the manner and progress being, as the defendant claims, unsatisfactory and dilatory, the defendant, on the 14th day of October, 1922, served upon the plaintiffs a 5-day notice to terminate the contract, pursuant to section 24 thereof. This notice bears date October 10, 1922. No attention having been paid to the notice by the plaintiffs, the defendant, on the 20th of October, 1922, served upon the plaintiffs a second notice regarding the termination of the contract in the event of a failure to proceed, and the plaintiffs still ignoring such notices, the defendant, on or about October 22, 1922, entered upon the work, took possession of the plaintiffs' plant, and proceeded to complete the work which the plaintiffs had contracted to do.

Section 24 of the contract, under which the defendant assumed to act in serving the notices referred to, reads as follows:

"XXIV. Should the contractor at any time refuse or neglect to supply a sufficiency of properly skilled workmen or of materials of the proper quality and quantity, or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements on his part herein contained, the village shall be at liberty after five (5) days' notice

(202 N.Y.S.)

to the contractor (which notice may be mailed to the contractor's last known address) to provide any such labor or materials and to deduct the cost thereof from any money due or thereafter to become due to the contractor hereunder, and in such case the village shall also be at liberty to terminate the employment of the contractor for said work and to enter upon the premises and take possession of all materials and appliances of every kind whatsoever thereon, and to employ any other person or persons to finish the work and to provide the materials therefor, and in case of such discontinuance of the employment of the contractor he shall not be entitled to receive any further payment under this contract until the said work shall be wholly finished, at which time, if the unpaid balance of the amount to be paid under this contract shall exceed the expense incurred by the village in finishing the work, such excess shall be paid by the village to the contractor; but if such expense shall exceed the aforesaid unpaid balance the contractor or his surety shall pay the difference to the village. The expense incurred by the village as herein provided, either for furnishing materials or for finishing the work, and any damage incurred through such default, shall be audited and certified by the engineer, whose certificate thereof shall be conclusive upon the parties."

The notice served by the village in the situation disclosed, read as follows:

"Mamaroneck, N. Y., October 10, 1922.

"To Faillace Brothers, 7 East 42d Street, New York, N. Y.:

"Take notice, that pursuant to the terms of your contract with the village of Mamaroneck, N. Y., dated June 3, 1922, you are hereby directed and required to supply a sufficiency of properly skilled workmen and materials of the proper quality and quantity, and prosecute the work under said contract with promptness and diligence, within five (5) days from the date of the service of this notice upon you, in default of which the said village of Mamaroneck will provide any such labor and materials and deduct the cost thereof from any money due you or thereafter to become due to you under said contract, and will enter upon the premises and take possession of all materials and appliances of every kind whatsoever thereon and finish the work and provide the materials therefor and charge the cost or expense of the same to you. Village of Mamaroneck,

"By Edgar L. Howe, Clerk,"

The second notice, sent on the 20th of October, read as follows: "Mamaroneck, N. Y., October 20, 1922.

"Faillace Brothers, #7 East 42d Street, New York City:

"Take notice, that by reason of your default and failure to comply with the terms and conditions of a certain notice addressed to you by the village of Mamaroneck, N. Y., bearing date the 10th day of October, 1922, and served upon you personally on the 14th day of October, 1922, the said village of Mamaroneck will forthwith provide any and all labor and materials specified and called for in your contract with said village bearing date June 3, 1922, and deduct the cost thereof from any money due you or hereafter to become due to you under said contract, and will forthwith enter upon the premises, and take possession of all materials and appliances of every kind whatsoever thereon, and finish the work and provide the materials therefor and charge the cost or expense of the same to you.

"Village of Mamaroneck,

"By Edgar L. Howe, Clerk."

There is no dispute on the part of the plaintiffs that the notices were properly served upon them. The plaintiffs' contention upon the trial was that the action of the defendant in thus attempting to terminate the contract was unjustifiable, and was illegal because of the fact that the notices served were wholly defective and insufficient, for the reason that they did not point out in what respect the plaintiffs were fail

ing to supply a sufficiency of men and materials. The defendant, however, maintained that the notices were sufficient, and whether they were or were not is the cardinal question in this case before us.

At the opening of the trial the question of the sufficiency of these notices was argued, and after hearing counsel the learned trial justice determined that the notices were sufficient, and directed the trial to proceed, which was done, and some testimony was taken. Later in the day, however, the court changed its ruling and held the notices to be insufficient. The defendant duly excepted to such ruling. The result of this change in the court's ruling was that the inquiry was limited to an assessment of damages suffered by the plaintiffs by reason of the termination of the contract, for the loss of profits, money earned and due, and also the value of the material and plant wrongfully taken by the defendant; and, of course, under this ruling, no trial upon the merits took place at all, because all that the jury had to do under the court's direction was to assess damages. The defendant was not even permitted to show as a matter of fact that it was justified in giving the notice. Neither was it permitted to show whether the plaintiffs had so conducted their work that the village sustained any financial damage. And, in addition to this, is it not a fair inference that the jury was prejudiced against the defendant when the learned trial justice charged that its act in taking over the plaintiffs' property was illegal and wrongful? The learned trial justice said in his charge that: "The defendant stands in the position of a wrongdoer, having taken the property mistakenly and so unlawfully."

The defendant excepted to this ruling and also to the charge. We think that the action of the trial justice in reference to the requirements of the notice, and also in limiting the proof upon the trial, compels a reversal of this judgment and the granting of a new trial. The village has not had its day in court, and we think it should be allowed to present its phase of this controversy.

In the very complete and interesting briefs submitted by counsel for both parties to this controversy, our attention has not been called to any authority in this or any other jurisdiction requiring any particular form for a notice to terminate a contract in a similar situation to that shown by the record in this case. All that seems to be necessary is that the notice required by the contract between the parties shall be couched in such plain and unambiguous language that it will be sufficient to convey to the contractor the objection of the owner to the method in which the work is being done, or any other specific fault the owner desires to attribute to the contractor. In Elliott on Contracts, volume 4, page 987 et seq., it is stated:

"Sometimes building contracts specify that notice shall be given in writing to the contractor, when the employer is dissatisfied with the work, whether as to its progress or to the quality of the materials furnished, and that if, after notice, the contractor fails to comply, the employer can take possession of and complete the work. Any plain statement conveying the intention of the party to claim the benefit of the provision will be generally held to be sufficient, as for instance: 'I give notice to you to supply all proper and sufficient materials and labor for the due prosecution of the works, and with due expedition to proceed therewith; and further if you shall for the space