There was shown none of the elements of "a fair measure of permanence and continuity" as to the corporation's activities in this state, referred to in Tauza v. Susquehanna Coal Co., 220 N. Y. 267, 115 N. E. 915, as the basis for conferring jurisdiction. The order appealed from will therefore be reversed, with $10 costs. and disbursements, and the motion granted, with $10 costs. Order filed. All concur. (179 App. Div. 735) BERNER v. COLLIER CO. (No. 2.) (Supreme Court, Appellate Division, First Department. October 26, 1917.) Appeal from Special Term, New York County. Action by John G. Berner against the Collier Company. From an order denying motion to vacate judgment and to enjoin a sale under execution thereon, defendant appeals. Reversed, and motion granted. Argued before CLARKE, P. J., and SCOTT, DOWLING, SMITH, and PAGE, JJ. Charles M. Travis, of New York City, for appellant. DOWLING, J. For the reasons assigned in the opinion in Berner v. Collier Co. (Action No. 1) 167 N. Y. Supp. 39, the order appealed from will be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. Order filed. All concur. (179 App. Div. 820) STAGE v. KLINGLER. (Supreme Court, Appellate Division, Second Department. October 11, 1917.) EJECTMENT 165 JUDGMENT-REQUISITES. In an action wherein the complaint alleged only the essentials of an action at law to recover real property, a verdict and judgment for plaintiff, failing to describe the property, or the nature of plaintiff's estate therein, were defective, in view of Code Civ. Proc. 1519, requiring plaintiff's estate to be specified, and could not be enforced by execution. Appeal from Trial Term, Westchester County. Action by James P. Stage against William J. Klingler. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted. Argued before JENKS, P. J., and STAPLETON, RICH, PUTNAM, and BLACKMAR, JJ. Jonathan Holden, of Pleasantville, for appellant. Henry C. Henderson, of New York City, for respondent. STAPLETON, J. The plaintiff and the defendant are owners of contiguous building lots. The plaintiff's grievance exposed by the evidence, is that there are on defendant's building a spout, eaves, and window shutters which project beyond the defendant's line and over the plaintiff's land. To have them removed is the design of the litigation. The complaint is a lean one, alleging nothing more than is es For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes sential in an action at law to recover real property. The allegation of plaintiff's ownership of the real property described in the complaint is not denied. The answer alleges, as new matter, that the defendant's house had stood, with the projections, for more than 20 years prior to the commencement of the action, in such circumstances that by prescription or adverse use a right to maintain them is established. There was a dispute whether some of the things enumerated did project over the line, and there was a question of fact on the issue tendered by the defense. The learned trial court erroneously directed a verdict for the plaintiff. The verdict and judgment are defective. In neither was the property involved described or the nature of plaintiff's estate specified. Section 1519 Code of Civil Procedure. The judgment cannot be enforced by execution. We have decided to reverse the judgment and grant a new trial, to the end that a useful judgment may be rendered upon a permissible verdict or decision. Hahl v. Sugo, 169 N. Y. 109, 62 N. E. 135, 61 L. R. A. 226, 88 Am. St. Rep. 539. It is to be hoped that the imperfect pleading will be so reformed before. another trial as to present truly the precise issue which the record demonstrates the parties desire to try. Judgment reversed, and new trial granted; costs to abide the event. All concur. GRUBER v. GRUBER. (Supreme Court, Special Term, Monroe County. November 1, 1917.) 1. DIVORCE (Syllabus by the Court.) 107-ACTION FOR SEPARATION-BILL OF PARTICULARS-STAtute. Under section 1764 of the Code of Civil Procedure, the plaintiff in an action for separation must set forth with reasonable certainty the time and place of each act complained of and relied upon as the basis of the action, and a bill of particulars will be ordered where this is not done. 2. DIVORCE 107--ACTION FOR SEPARATION-BILL OF PARTICULARS-STATUTE. Where the plaintiff sets forth with reasonable certainty, either in the complaint or in a bill of particulars, the time and place of each act complained of upon which she relies as the basis of her cause of action, she may set forth a general course of conduct to substantiate her cause of action, of which no particulars will be required. Action by Margret Gruber against Peter Gruber. On motion by defendant for a bill of particulars. Granted. Warren, Shuster & Case, of Rochester (Earl F. Case, of Rochester, of counsel), for the motion. McInerney & Bechtold, of Rochester (John J. McInerney, of Rochester, of counsel), opposed. RODENBECK, J. [1] The plaintiff seems to rely in her complaint upon a general course of misconduct as the basis for her action. This is not in accordance with the requirements of section 1764 of the Code of Civil Procedure, which provides that the complaint in an action for For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes separation shall "specify particularly the nature and circumstances of the defendant's misconduct, and must set forth the time and place of each act complained of, with reasonable certainty." This language is plain, and should not be evaded by judicial construction. The plaintiff is required to state in her complaint the time and place of each act complained of with reasonable certainty upon which she bases her cause of action; but having done so, she may then allege other facts and circumstances showing a general course of misconduct designed to support the main allegations in the complaint. The rule permitting evidence of general misconduct before or after the acts complained of should not be perverted, so as to permit an action to be brought upon such general allegations without specifying the particular acts upon which the cause of action is based. [2] The plaintiff should be required to furnish the bill of particulars asked for in the moving papers. This does not require her to state every act complained of, but she must specify those upon which she relies as the basis of her cause of action, and she may then allege and prove a general course of misconduct to substantiate her cause of action, of which general misconduct no particulars will be required. Earle v. Earle, 79 App. Div. 631, 79 N. Y. Supp. 613. Motion granted without costs. GARFIELD REAL ESTATE CO., Inc., v. DENNIS. (Supreme Court, Special Term, Monroe County. November 1, 1917.) BROKERS (Syllabus by the Court.) 49(1)-CONSTRUCTION OF CONTRACT-"SALE"-LIABILITY. The term "sale," as used in an exclusive real estate broker's contract, authorizing him to "sell" property and giving him a commission upon a "sale" of the same by him or by the owner during the life of the contract, includes any transfer of the property for a valuable consideration, either of money or property, and makes the owner liable for commissions where he transfers the property before the expiration of the contract for a price to be paid by assuming a mortgage on the property, giving a second mortgage, and taking a conveyance of certain lots. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Sale.] Action by the Garfield Real Estate Company, Incorporated, against James J. Dennis. On motion by defendant for new trial on the judge's minutes. Denied. This action was brought on a real estate broker's contract, which was exclusive, and provided as follows: "In consideration of said agent listing, advertising, making special effort to sell same, upon sale to a purchaser procured through its efforts under this listing, or upon sale by me or any person or agency while this listing is in effect, I agree to pay said agent a commission of 5 per cent. (minimum $100) of sale price." The property was not sold by the broker, but during the life of the contract, which was terminable upon 30 days' notice after one year from the date thereof, the owner disposed of the property for the consideration of $11,000, which was paid by the purchaser by assuming a mortgage on the property, For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes giving a second mortgage, and conveying some city lots. It was claimed that this transaction did not constitute a "sale" under the contract, and that the owner was not obligated to pay the commissions provided in the contract. John F. Kinney, of Rochester, for the motion. RODENBECK, J. This case was submitted to the jury under a definition of the word "sale" in the contract as including any transfer of property for a price, whether it be money or other property. The only point made on this motion is that this definition is erroneous, and that the transaction of the owner constituted an exchange of property and not a sale. In interpreting a contract, the primary rule is to ascertain the intention of the parties; and the question in this case is, What did the parties mean by the word "sale" as used in the contract? The words "sell" and "sale," as ordinarily used, mean a transfer of property for a valuable consideration. They are not confined to a transfer of property for a pecuniary consideration. There are definitions given by text-book writers and decisions which give these terms a narrow construction, but the present tendency and the weight of authority is in favor of the definition given by the court. In the Sale of Goods Law the term is applied to any transfer of property for a valuable consideration. "A sale of goods is an agreement whereby the seller transfers the property in goods to the buyer for a consideration called a price." Personal Property Law (Laws 1911, c. 571; Consol. Laws, c. 41) § 82, subd. 2. "The price may be made payable in any personal property." Id., § 90, subd. 2. Under this definition barter is classed with sale. Bogert, Sale of Goods, p. 2. Benjamin defines the word "sale" as: "A present transfer of the entire title for a consideration." Benjamin on Sales, p. 3 (Ed. 1888). The Century Dictionary defines the term as follows: "In law, a contract for the transfer of property from one person to another for a valuable consideration." This is substantially the same language used by Chancellor Kent in his Commentaries. 2 Kent's Com. 468 (5th. Ed.). Mechem says that: "A distinguishing feature of a sale, as has been said, is that it is a transfer of the absolute title to a thing for a price in money or its equivalent." Mechem on Sales, vol. 1, §§ 204, 205. Tiedeman says that: "Although it has been sometimes held that the sale must be a transfer for money and that every other transfer is an exchange or barter, a better opinion is that the transaction is still a sale, although the transfer is made for something else than money." Tiedeman on Sales, § 12. In Madison Avenue Baptist Church v. Baptist Church in Oliver Street, 46 N. Y. 131, 139, Judge Grover says, with reference to the meaning of the word "sale" as used in the statute relating to the real property of a religious corporation: "The term, as used in the statute, should be construed as defined by Blackstone and Kent. This would embrace every transfer for a valuable consideration, whether paid in cash or other property." In Hudson Iron Co. v. Alger, 54 N. Y. 173, 178, where the agreement was to convey a certain quantity of iron ore in return for a certain quantity of pig iron, Judge Earle said that: "The plaintiff may be said to have agreed to sell the pig iron and take his pay in iron ore." Similar definitions will be found in many other cases. Goward v. Waters, 98 Mass. 598; Ullmann v. Land, 37 Tex. Civ. App. 422, 84 S. W. 294; Thornton v. Moody (Tex. Civ. App.) 24 S. W. 331. The parties evidently so understood the meaning of the terms "sell" and "sale," for the defendant endeavored to keep from the plaintiff the fact of his having transferred his property. If the construction contended for by the defendant is to prevail, a transfer of his property during the life of the contract for the very smallest property in exchange, the rest being paid in cash, would relieve him from the contract. If the plaintiff had secured a purchaser for the property acceptable to the owner, even though a part of the consideration was to be met by a transfer of other property, it would have been a sale under the contract. The written contract made by the defendant with the purchaser of his property states that the consideration was $11,000 and that it was to be paid by assuming a mortgage against the property, giving a second mortgage on it, and transferring some city lots to the defendant. This accords exactly with the definition of the court that a sale under the contract was a sale of the property for a price, whether that price be represented by money or other property. The purpose of the contract was to protect the plaintiff in any efforts which it might put forth for the sale of the property, and in disposing of his property the defendant sought to defeat this intention of the parties. It is no hardship to the defendant to enforce the letter of the contract, since he could have terminated the contract upon 30 days' notice after the expiration of a year from the date thereof, and thus avoid the payment of commissions. The motion for a new trial is denied, without costs. |