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harmony with the so regard this rule. costs in each case.

and 95 New York State Reporter.

statute, and fairly within its contemplation. I Writs of mandamus will issue as asked for, with

Writs issued, with costs, in each case.

TELLER et al. v. GERRY et al.

(Supreme Court, Appellate Term. December 28, 1899.)

PARTNERSHIP-ACTION AGAINST FIRM-JUDGMENT AGAINST PARTNER.

In an action against two defendants, as co-partners, for a partnership liability, it is error to halve the amount sued for, and render an individual judgment for that sum against the one defendant on whom service was had.

Appeal from municipal court, borough of Manhattan, First district.

Action by Robert Teller and others against Theodore L. C. Gerry and Charles Murray. From a judgment against defendant Charles Murray, he appeals. Reversed.

Argued before FREEDMAN, P. J., and MacLEAN and LEVENTRITT, JJ.

Arnold Charles Weil, for appellant.
Henry L. Maxson, for respondents.

LEVENTRITT, J. An action for work, labor, and services was brought against the defendants as co-partners. If any liability existed on their part for breach of the contract, it was joint, and required a judgment against both in their partnership capacity. The justice halved the amount sued for, and rendered judgment for that half against the defendant Charles Murray, he being the only one served. It is obvious that there must be a reversal. There is no authority for such a division, or for the individual judgment given. It did not require personal service on the other defendant, to give the court jurisdiction of the partnership; and the liability, being a partnership liability, could not be enforced against a member individually until after the partnership assets had been exhausted. Neither on the pleadings nor on the proof were the plaintiffs entitled to the judgment obtained, either as to form or amount. There must be a new trial.

Judgment reversed and a new trial ordered, with costs to appel. lant to abide the event.

FREEDMAN, P. J., concurs; MacLEAN, J., in result.

HORNBERGER et al. v. FEDER et al.

(Supreme Court, Appellate Term.

1. SALES-RESCISSION.

December 28, 1899.)

A claim that a sale was rescinded, which is based upon an instruction from the husband of the buyer to the seller to come and take the goods away, cannot be sustained in the absence of proof that the husband had authority to give such instruction.

2. SAME.

The title to property sold cannot be revested in the seller by a rescission of the sale, but only by resale, where the contract of sale remains in no sense executory, and there has been a perfect delivery, and no pretense of fraud is made.

Appeal from municipal court, borough of Manhattan, Fourth district.

Action by Louis Hornberger and another against Annie Feder and Samuel I. Abramson, as marshal. From a judgment for plaintiffs, defendants appeal. Reversed.

Argued before FREEDMAN, P. J., and MacLEAN and LEVENTRITT, JJ.

Blaw & Lesser, for appellants.

Herman G. Loew, for respondents.

LEVENTRITT, J. The question presented for review is wheth er there was a rescission of a contract of sale after delivery of the chattels, so as to support an action for their recovery as against an attaching creditor. On the 29th day of May, 1899, the plaintiffs sold and delivered to the defendant Annie Feder 36 barrels of flour. On the 12th day of June, 1899, the defendant Abramson, as a marshal of the city of New York, levied on the flour under a warrant of attachment against the property of the defendant Feder. Three days later the plaintiffs replevied the flour from the defendants, and have since retained the possession thereof. On the trial the plaintiffs sought to justify the writ by an alleged rescission of the sale. The plaintiff Hornberger testified on his direct examination that on the day preceding the issuance of the warrant the defendant Feder sent him "word she didn't want the goods," and on his cross-examination he added, "She notified me through her hus band, who came around and told us to take the goods away." He further testified that on the morning of the levy he went to the premises of the defendant Feder, but found the marshal already in possession of the flour. Hornberger's father, called as a witness, claimed to have preceded the marshal by half an hour, and to have notified the latter that the flour belonged to his son. This summarizes all the testimony in support of rescission. Inasmuch as the rescission is predicated solely on the direction of the defendant's husband to the plaintiffs, it would, perhaps, be sufficient to point out the complete absence of proof indicating authority in him to give such direction. This omission, emphasized by the defendant Feder's assertion that he had no authority, would in itself require a reversal of the judgment. There is, however, a further ground,

61 N.Y.S.-55

and 95 New York State Reporter.

not dependent on his authority. We are of the opinion that, as a matter of law, there was no rescission of the sale. The title of the defendant Feder had been perfected. There had been a perfect delivery. The contract remained in no respect executory, and no pretense of fraud was made. The plaintiffs, under those circumstances, could not become revested with the title to the flour by a rescission, but only by a resale. The fact that for a period of two weeks the defendant Feder was in undisputed possession, and that her right of ownership was both exercised and recognized, indicates elearly that the property was hers, and so continued unless by a new contract she resold to the plaintiffs. There is no claim that there was such a resale, and, if made, it could not prevail, because there was no compliance with the provisions of the statute of frauds. This case is analogous to that of Blanchard v. Trim, 38 N. Y. 225, which is an authority for this reversal.

Judgment reversed, and a new trial ordered, with costs to appellants to abide the event. All concur.

FINCK v. ROGERS.

(Supreme Court, Appellate Term. December 28, 1899.)

LANDLORD AND TENANT-CONSTRUCTIVE EVICTION.

A constructive eviction cannot be predicated on the vibrations of an elec tric dynamo, used for lighting purposes, located in the basement of an apartment building, and annoying to a tenant for a single night and a part of the following day, without proof that this condition existed before or afterwards, that it could not have been readily remedied, and that the landlord was advised of its prior existence.

Appeal from municipal court, borough of Manhattan, Eleventh district.

Action by Louisa Finck against Alfred M. Rogers. From a judg ment for defendant, plaintiff appeals. Reversed.

Argued before FREEDMAN, P. J., and MacLEAN and LEVENTRITT, JJ.

George Finck, for appellant.

Edward G. Black, for respondent.

LEVENTRITT, J. The defendant successfully resisted an action for rent by proof of an alleged eviction. The record shows that on the 27th day of September, 1898, the defendant, under a written Bease for one year, commencing on the 1st day of October, 1898, entered into possession of an apartment on the second floor of the Cameron Flats, owned by the plaintiff. Prior to this time the defendant had for almost a year occupied another apartment on the same floor of the same building, and had had no occasion for complaint. On September 27th the defendant, his wife, and a servant moved into the new apartment. They remained but a single night, slept elsewhere the following night, and began moving out the day after, alleging as a reason interference with the quiet enjoyment of the premises. This consisted of vibrations in the apartment caused

by an electric dynamo located in the cellar, and provided for lighting purposes. The defendant claims that the walls and floor shook; that the chandelier rattled, and that neither he nor his wife, who was a nervous, sick woman, could sleep throughout the night; that during a part of the succeeding day the same disturbances continued. On this the defendant predicated a constructive eviction. This plea should not have prevailed. We may disregard the fact that the preponderance of credible testimony was clearly with the plaintiff, who produced disinterested witnesses,-a prior and a subsequent tenant of the same apartment occupied by the defendant,— and they testified that, under similar conditions, the dynamo had never annoyed them, nor had they noticed any vibrations. It is not necessary, however, for the purpose of this appeal, to depart from our well-settled rule not to reverse on the facts. There was error in law, as the defendant's evidence, conceding it to be true, was insufficient to support a constructive eviction. He testified to a condition existing only for a single night and part of the following day. There is no proof whatever that this condition obtained either before or after, nor that it could not readily have been remedied, nor that the plaintiff was advised of its prior existence. In fact, the defendant testified that, when the plaintiff's agent was informed of the vibration, he stated that he had never observed it. Nevertheless, the defendant, on the very next morning, and without giving opportunity to abate the annoyance, left the premises. In a case similar to the one at bar, the court say:

"If, after notice, the landlord proceeds with proper diligence to do what is necessary, he is allowed a reasonable time to remedy the defect." O'Gorman v. Harby, 18 Misc. Rep. 228, 41 N. Y. Supp. 521.

It will be found upon examination of the authorities that, where minor annoyances have been held to justify abandonment of premises, the resulting interference with the beneficial enjoyment of the demised premises has not been limited to an isolated instance, but has been long continued. Chaplin, Landl. & Ten. 503; Cohen v. Dupont, 1 Sandf. 260; Wyse v. Russell, 16 Misc. Rep. 53, 37 N. Y. Supp. 683; O'Gorman v. Harby, supra; Tallman v. Murphy, 120 N. Y. 345, 24 N. E. 716; McLaughlin v. Bohm, 20 Misc. Rep. 338, 45 N. Y. Supp. 745. In the case last cited, analogous to the one under review, this court held, in effect, that the noise of a properly constructed and properly operated pump in the cellar of an apartment house cannot be made the basis of a claim for eviction. In that case, also, the testimony showed that the vibration caused the chandeliers to rattle, crockery and glassware to fall from shelves, and that illness akin to seasickness was produced in tenant's wife. McLaughlin v. Bohm was properly decided adversely to the tenant. in the first instance, and we are of the opinion that on the record the same disposition should have been made of this case. The judgment will be reversed.

Judgment reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

and 95 New York State Reporter.

UNITED STATES TRUST CO. v. HODGSON.

(Supreme Court, Appellate Term. December 28, 1899.)

PLEADING-OFFER OF JUDGMENT-COUNTERCLAIM.

Defendant made an offer of judgment, and later, within the 10 days allowed plaintiff by Code Civ. Proc. § 738, in which to accept, filed a counterclaim. Within the 10 days, plaintiff accepted the offer, and had judgment entered thereon. Held, that defendant was not entitled to any adjudication of the issues presented by the counterclaim; Code Civ. Proc. § 974, providing that when a defendant interposes a counterclaim, and demands an affirmative judgment against plaintiff, the mode of trial of an issue of fact arising thereon shall be the same as if it arose in an action brought by defendant against plaintiff for the cause of action named in the counterclaim, not being applicable.

Appeal from city court of New York, general term.

Action by the United States Trust Company, trustee, against John M. Hodgson. Defendant appeals from an order of the general term of the city court (58 N. Y. Supp. 1132), reversing an order of the special term directing a judgment entered by the plaintiff to be vacated, and allowing defendant judgment on a counterclaim. Affirmed.

Argued before FREEDMAN, P. J., and MacLEAN and LEVENTRITT, JJ.

Joseph A. Arnold, for appellant.
Rollins & Rollins, for respondent.

FREEDMAN, P. J. This action was brought to recover the sum of $109.10, claimed by the plaintiff to be due from the defendant, being the amount of water rates assessed against certain premises occupied by the defendant under a lease in which he covenanted to pay such assessments. The summons and complaint in the action were served upon the defendant, who on February 6, 1899, served an offer to allow a judgment to be taken against him for the sum of $96.75 and interest and costs. On February 10, 1899, four days after service of the defendant's offer to allow judgment to be taken against him, the defendant served an answer setting up therein a counterclaim for the sum of $12.35. On February 15, 1899, and within the 10 days allowed the plaintiff by the Code of Civil Procedure (section 738), in which to accept such offer, the plaintiff's attorney served upon the defendant's attorney a notice of the acceptance of such offer, and on the next day entered a judgment for the amount named in the offer, with costs. On February 17, 1899, the defendant obtained an order to show cause at a special term of the city court why the judgment should not be vacated, and the defendant should not have a judgment upon his counterclaim. Upon the hearing the special term made an order vacating the judgment of the plaintiff entered upon the order aforesaid, and directed that the defendant should have judgment upon his counterclaim unless. the plaintiff would consent to reduce the judgment obtained by him by the amount of the defendant's counterclaim, in which event the judgment as modified might stand. The plaintiff thereupon appealed to the general term of the city court, which reversed the

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