Imágenes de páginas

fied the contract and waived his

Appeal from a judgment entered objection thereto. 3 Wend., 237 ; upon a verdict in favor of the 46 N. Y., 536 ; 1 Den., 69 ; 2 Hill, plaintiff, and from an order deny288, 5 id., 389; 44 N. Y., 530 ; 49 | ing motion for new trial. id., 625; 61 id., 153.

The plaintiff was a fruit broker, In reviewing the determination and was authorized by the defendof a trial court upon questions of ants, on April 27, 1877, to sell for fact, an appellate tribunal is not them 673 casks of prunes at 7 cents warranted in reversing, upon the per lb. Upon the following day sole ground that, in its opinion, plaintiff found a responsible purthe trial court should have reach- chaser for the prunes, and immeed a different conclusion upon diately notified defendants of that conflicting evidence. To justify a fact. Defendants then refused to reversal it must appear that such sell the prunes, claiming that the findings were against the weight plaintiffs' authority to make the of evidence, or that the proofs so contract for them was limited to clearly preponderated in favor of the 27th of April. a contrary conclusion that it can Plaintiff then brought this action be said with a reasonable degree to recover his commission as for a of certainty that the trial court sale of the prunes in question. erred in its conclusions. 66 N. C. Edward Souther, for applt. Y., 260 ; 55 id., 256 ; 94 id., 626; James M. Smith, for respt. 64 id., 361.

Held, That the jury having Order of General Term, revers found upon conflicting evidence ing judgment for plaintiff and that the authority of plaintiff to granting new trial, reversed and sell the prunes was not limited to judgment affirmed.

April 27th, he was entitled to his Opinion by Ruger, Ch. J. All commissions, for, to maintain the concur, Miller, J., on result claim of a broker for his com mis

sions, it is only necessary for him

to be able to show that he had BROKERS' COMMISSIONS. procured a purchaser for the prop

erty at the price for which he was N. Y. SUPREME Court. GENERAL empowered to sell, or that his prinTERM. FIRST DEPT.

cipal had deprived him of the Polydore Duclos, respt., v. Wm. opportunity to do so while the T. Cunningham, applt.

privilege lasted. 83 N.Y., 383 ; 3

Hun, 152. Decided Oct. 8, 1884.

Judgment affirmed. To maintain the claim of a broker for his com

Opinion by Brady, J.; Daniels, missions it is only necessary for him to show J., concurred. Davis, P. J., that he had procured a responsible purcha- thought that a new trial should ser for the property at the price for which

have been ordered upon the mohe was empowered to sell, or that the prin. cipal had deprived him of the opportunity tion in the court below, and thereto do so while the privilege lasted.

fore dissented.


This action was brought to re

cover the damages occasioned by N. Y. COURT OF APPEALS.

an eviction from and injury to the Duryee, respt., v. The Mayor, lands of the plaintiff, through the &c., of New York, applt.

alleged unlawful conduct of de

fendant. The premises in quesDecided Oct. 7, 1884.

tion were water lots in the East In 1848 the city deeded certain water lots to River, adjoining the lands between

the owners of the adjacent upland, the 34th and 36th streets, in the city deed containing a covenant by the grantee of New York, and were sold by it to build, within three months after being required to do so, and not until so required for the purpose of filling and using bulkheads, wharves, streets, &c., and it

as land for the extension of streets also provided that on failure to do so the thereon and the erection of city might do the work at the grantee's ex

wharves, piers and buildings. In pense or re-enter. The grantee and his successors proceeded to make and gain the

1844 the city adopted ordinances, land for twenty years, under the direction which provide among other things of the city officials. Held, That the deed that the lands under water on the conveyed an absolute title, subject only to shores of the island of New York be defeated by a breach of the conditions; that a failure to fill in all the land was not belonging to the city, under its a defense to an action for eviction and in several charters, might be sold and jury to the land; that the forfeiture might conveyed by the city to parties be waived by the city or the time extended, desiring to purchase, giving priand that there was such a waiver; that the condition in the deed and the limitation in ority to the owner of the adjacent the ordinance of 1844 apply to the streets upland, upon condition that “no and not to lands outside of them.

grant made by virtue of this The grantee gave to the city, without con ordinance shall authorize the

sideration, a written license to change the outlet of a sewer so that it would discharge

grantee to construct bulkheads or over the land outside of the street. Plain- piers made land in conformity tiff on becoming the owner revoked said thereto, without permission so to license and proceeded to fill in his land, do is first had and obtained from whereupon the city prohibited his doing so,

the Common Council, and the as obstructing the outlet of the sewer. Held, That the license was revocable at the pleas- grantee shall be bound to make ure of the owner.

such land, piers and bulkheads at The deposit of materials upon a lot for the such times and in such manner as purpose of making land constitutes such

the Common Council shall direct, materials a part of the real estate, and the same right of action exists for an injury under penalty of forfeiture of said thereto as would accrue for similar in- grant for non-compliance with such juries to the natural land.

directions of the Common CounThe ordinance of 1856, fixing an exterior cil” (s 15.) These ordinances were

water-line and authorizing the adjacent owners to fill up to that line, although recognized and approved by the annulled by Chap. 763, Laws of 1857, so far Legislature in Chap. 225 of Laws as it attempted to establish an exterior line, of 1845. In pursuance of this was a sufficient authority and consent to authority in January, 1848, the fill up to the line established by the Act of 1857 to meet the requirements of the limi- city sold and conveyed to the tation in the Sinking Fund Ordinance. F. L. & T. Co., the then owner of

the adjacent uplands, all the lands / ing this outlet a license to flow the under water in the East River, ex- lands was obtained from plaintiff's cept the lands designed for streets grantor. This license was for an and avenues lying between 31st | indefinite period, and consisted and a point lying near 36th streets, simply of the licensor's written and between Avenue A and the consent, and was without conline of high-water mark on the ad- sideration. Plaintiff acqnired title jacent uplands. It was stated in in 1867 and revoked the license, the deed that the object of the proceeded to build bulkheads conveyance was to enable the along the exterior water-line, and grantee to make and gain the land to fill in the space between it and under water in the East River, and the shore line. The Croton Aquepurported to give immediate pos- duct Board forbade plaintiff using session. The grantee covenanted his premises in the manner proto build and erect within three posed, and threatened him with months after it was required to do the penalties imposed by the city so by the grantor, but not until ordinances upon those obstructing required, bulkheads, wharves, the outlet of any of its sewers. avenues and streets, and fill in the Plaintiff was thereby prevented same. It was further provided from filling up his land and enjoythat in case of default by the ing the use of it, and was sub. grantee to perform said covenant, jected to large expense and damage the city might do the work at the owing to injuries occasioned by expense of the grantee, or re-enter the action of the sewage and the and take possession of the prem obligation imposed upon him by ises. The grantee entered into defendant of keeping the outlet possession of the premises, and it free from obstruction, and brought and its successors in title pro- this action. ceeded to make and gain the land Francis Lynde Stetson, for under water for twenty years, applt. without being interfered with by F. J. Fithian, for respt. the city and under the direction Held, That the deed under and control of its officers. The which plaintiff holds conveyed an streets SO constructed and the absolute title, subject only to be wharves and bulkheads at their defeated by a breach of the conditerminations were taken posses- tions; that the failure of the sion of by the city. In 1848 the grantee and his successors in intecity built a temporary sewer in rest to fill in the land under water one of the streets crossing the tract, within the time required by the which emptied into the river at the condition in the deed, even if this foot of the street. In 1865 the city, condition should be held to apply desiring to change the location of to the land between the streets, the outlet, built a new outlet, was not a defense to this action. It causing it to discharge over plain was competent for the city to tiff's premises. Before construct. I waive the forfeiture or to extend

the time within which the condi- | purports to establish a map, plan tion should be performed. 12 Barb., and new exterior water-line on its 440. The case shows such a easterly side for the city of New waiver. Neglect to perform such York. This line was thereby a condition does not ipso facto de ordained to be a street called East termine the estate, but only ex- street, running nearly parallel poses it to be defeated and deter- with Avenue A opposite plaintiff's mined at the election of the property, and at a distance of 200 grantor, to be signified by some feet easterly therefrom in the act equivalent to a re-entry at river. The ordinance then procommon law. 12 Barb., 440. vided “That the proprietors of Until such act plaintiffs' rights lands adjoining or nearest and opwere unimpaired.

posite to East street, as hereby Also held, That the condition in established, be and they are herethe deed and the limitation in the by authorized and directed to ordinance apply to the streets and make and complete said East avenues, and not to the lands out street on or before the first day side of them.

of January, 1860, and on or before Also held, That the license to the said day to fill and level the change the outlet of sewer was spaces between their property and revocable at the pleasure of the the said East street.” By Chap. owner, conferred no rights which 763 of the Laws of 1857 a bulkhead could survive the withdrawal of and pier line was established about the authority under which it was on the line of the lands conveyed granted. 84 N. Y., 31; 94 id., 323. by the city. In an action of tort, to recover

Held, That while the ordinance, even unliquidated damages, the so far as it attempted to establish allowance of interest by way of an exterior line was annulled by damages is in the discretion of the the Act of 1857, and conceding jury. 18 N. Y., 457 ; 46 id., 361 ; that the city was not authorized to 89 id., 498.

establish a line outside of the Also held, That the deposit of property it owned, the ordinance materials upon the lot in question was a sufficient authority and conby plaintiff, for the purpose of sent to construct bulkheads and making land, constituted such piers and fill up the lands under materials a part of his real estate, water to the line established by and gave him the same right of said Act, to meet the requirements action for an injury thereto which of the limitation in the “s Sinking would accrue to him for similar Fund Ordinance" (recognized and injuries done to the natural land approved by Chap. 225, Laws of transferred under his conveyance. 1845), which declares that no grant 7 Johns., 285 ; 79 N. Y, 470 ; 89 by the city under that ordinance id., 498.

will authorize its grantee to conOn Dec. 26, 1866, the Common struct bulkheads, piers, or make Council passed an ordinance which lands without first having ob

Vol. 20.-No. 5a.

tained permission from the Com. | to have been loaned by it to demon Council.

fendant. The answer denied the It is only when the various en- making of the loan and alleges actments of a legislative body are that the loan was made to K. & Co.. plainly dependent upon each for whom plaintiff acted as broker other and so inseparably con in the transaction. Upon the trial nected in matter and design that plaintiff introduced in evidence an they cannot be divided without envelope which contained the coldefeating the object of the statute laterals on which the loan was that the invalidity of one provi- made. Upon its back was indorsed sion will entail that of those re the date of the loan, the defendmaining. Sedge. on Stat. Con- ant's name and address, the terms struction, 413; 1 Gray, 482 ; 25 of the loan and a list of the colConn., 290.

laterals. It contained no promise Judgment of General Term, af- to pay and no agreement by defirming judgment for plaintiff on fendant, and it did not appear for verdict, affirmed.

what purpose his name and adOpinion by Ruger, Ch. J. All dress were written on the envelope. concur.

The defendant was allowed to

prove by parol that his name was CONTRACT. EVIDENCE.

written on the envelope after the

loan had been made upon collat. N. Y. COURT OF APPEALS. erals belonging to other parties The Union Trust Co., applt., v.

over whose affairs defendant had Whiton, respt.

some control; that plaintiff's sec

retary had asked to whose order Decided Oct. 31, 1884.

the check should be drawn. In an action to recover money loaned, plain

Wheeler H. Peckham, for applt. tiff put in evidence an envelope on which Robert F. Little and Ashbel was indorsed the date of the loan, de- | Green, for respt. fendant's name and address, the terms of

Held, That the indorsement on the loan and a list of the collaterals. The indorsement contained no promise to pay.

the back of the envelope did not Held, That the indorsement did not state of itself contain all the necessary sufficient to constitute a complete contract language required to make a comand that the evidence tending to show that defendant's name was written on the plete contract, and as no declaraenvelope after the loan was made on col. i tion to the effect that he was the laterals belonging to other parties was ad borrower, was signed by him, the missible.

writing by him of his name and The existence of a custom cannot overrule

the terms of a contract ambiguous on its address on the envelope cannot be face and the explanation by parol evi considered as an acknowledgment dence showing what the parties really in- of an indebtedness, or that he was tended.

the borrower. Affirming S. C., 15 W. Dig., 108.

While instruments which are This action was brought to re- somewhat informal and which do cover $75,000 alleged by plaintiff not contain all the phraseology

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