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I think, therefore, this lease was in violation of these provisions of the charter, and in excess of the power of the commissioner, and that the court below was right in refusing to enforce such an agreement or lease made in violation of the provisions of the charter.

It follows that the judgment appealed from must be affirmed, with costs. All concur.

SMITH V. SHELDON. (Supreme Court, Appellate Division, Third Department. May 4, 1904.) 1. COMPROMISE AND SETTLEMENT-OFFERS-EFFECT ON Costs-DETERMINATION.

In determining the effect, on liability for costs, of an offer to compromise, the condition of the pleadings at the time the offer is served must

be considered. 2. SAME-MORE FAVORABLE JUDGMENT.

Plaintiff, who had worked a farm of defendant on suares, sued defendant for a balance on account for produce raised on the farm and sold by defendant, for money laid out and expended by plaintiff for defendant, for plaintiff's share in the crops and produce, and for plaintiff's interest in live stock on the farm. In her counterclaim, defendant alleged an indebtedness of plaintiff on account of goods sold by defendant to plaintiff, and offered, in support of her counterclaim, proof that she had sold five cords of wood to plaintiff for the sum of $25. Before filing her counterclaim, defendant offered to allow judgment to be taken against her for $130, with costs, but plaintiff declined the offer. Judgment was rendered for plaintiff in the sum of $129.03. Held, that as the proof in support of the counterclaim was of a contract distinct from that set up in the complaint, and as plaintiff's liability on such contract would not have been affected by a judgment on the complaint, had the counterclaim not been interposed, and as the judgment operated to extinguish the counterclaim, it was more favorable to plaintiff than the offer of judgment, and he was entitled to his costs. Appeal from Columbia County Court.

Action by William Smith against Alice Sheldon. From an order directing that the taxation of costs in favor of defendant be set aside, and that costs be retaxed in favor of plaintiff and against defendant, defendant appeals. Affirmed.

Plaintiff brought an action against the defendant in the county court, and in his complaint alleged that during the year beginning April 1, 1900, and ending on or about March 28, 1901, he worked a farm of the defendant upon shares, pursuant to an agreement in writing, and that the defendant is indebted to him for "a balance on account for produce raised on said farm during said term and sold by said defendant, the proceeds of which were received and retained by her; for money laid out and expended, and for materials furnished and purchased, by plaintiff for the defendant; for plaintiff's share or interest in crops and produce still undivided and in possession of the defendant; for plaintiff's interest or share in live stock maintained on said farm-amounting, in the aggregate, to the sum of three hundred ninety-nine 89/100 dollars," as more fully appears by a schedule made a part of said complaint. The schedule states in detail the items for which the plaintiff claims that the defendant is indebted to him, and included therein, in addition to items of account expressly within the terms of said contract, are other items for extra work and materials furnished in connection with working said farm during said time, one item of which extends beyond said term, and to the 1st day of May, 1901. The defendant's answer is substantially a general denial, and as a counterclaim the defendant alleged "that the plaintiff is indebted to the defendant in the sum of one hundred dollars on the balance of an account for goods sold by

and 121 New York State Reporter defendant to plaintiff and delivered, money and property belonging to defendant had and received by plaintiff, and for personal property belonging to de fendant, used and enjoyed by plaintiff between the 1st day of April, 1898, and the 1st day of May, 1901, both inclusive." The answer demanded that the complaint be dismissed, and that the defendant have judgment against the plaintiff for $100. On the trial, evidence was given to sustain the plaintiff's cause of action, and also to sustain the defendant's counterclaim; and one of the items of the defendant's counterclaim, on which she offered proof, was five cords of standing wood sold and delivered to the plaintiff in 1899 for $25. The referee to whom the issues were referred found that the defendant was indebted to the plaintiff in the sum of $129.03, and directed judgment against the defendant therefor. After the plaintiff's complaint was served, but before the defendant's answer thereto was served, she served a written offer to allow judgment to be taken against her for the sum of $130, with costs. The offer of judgment was not accepted. After the decision of the referee was filed, the defendant taxed her costs, and claimed that the plaintiff had failed to recover a judgment more favorable to him than the offer. A motion was then made to set aside said taxation of costs in favor of the defendant, and to direct that costs be taxed in favor of the plaintiff against the defendant, which motion was granted, and from the order entered thereon this appeal is taken.

Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ.

J. D. Bell, for appellant.
John M. McDonald (John L. Crandell, of counsel), for respondent.

CHASE, J. In determining the effect of an offer to compromise, the condition of the pleadings at the time the offer is served must be considered. Tompkins v. Ives, 36 N. Y. 75. The amount of the judgment rendered in favor of the plaintiff was 97 cents less than the offer of judgment. It is claimed by the plaintiff that, in addition to the money judgment recovered by him, he has also extinguished the defendant's counterclaim, and that therefore the judgment recovered upon the trial is more favorable to him than the offer. 15 Encyclo pædia of Pleading & Practice, 56. The defendant contends that all the items of her counterclaim are so connected with the items of the plaintiff's complaint that, in determining the balance due the plaintiff, such items constituting her counterclaim could have been proven under a general denial, and that, had the plaintiff accepted her offer of judgment, such counterclaim would have been extinguished. The defendant is mistaken in her claim, at least to the extent of the item for wood claimed to have been sold by the defendant to the plaintiff about a year prior to the time when the written contract between the plaintiff and defendant was made, and prior to the transactions upon which the plaintiff's suit is based. Such item appears to arise from an independent contract. Claims or demands arising from distinct and independent contracts will sustain separate actions or counterclaims, and are not affected by actions between the same parties arising from other independent contracts or transactions. Secor v. Sturgis, 16 N. Y. 548.

We are of the opinion that the plaintiff obtained a more favorable judgment than that offered by the defendant. The order should be aifirmed, with $10 costs and disbursements. All concur.

JACKSON v. MOORE. (Supreme Court, Appellate Division, Third Department. May 11, 1904.) 1. Co-TENANCY-SALE OF PROPERTY-RIGHT TO PROCEEDS.

Where tenants in common in real property sold the same to one who agreed to pay certain incumbrances and sell the premises and return onethird of the proceeds to such co-tenants, they became tenants in common

of one-third of the net proceeds of the sale as personal property. 2. SAME-QUANTITY OF INTEREST-PRESUMPTION.

In the absence of any evidence on the subject, the shares of several

tenants in common are presumed to be equal. 3. SAME-ACTIONS_JOINDER OF PARTIES.

As a general rule, tenants in common of personal property must join in

bringing actions, whether arising ex contractu or ex delicto. 4. SAME-RELEASE BY ONE TENANT-EFFECT ON OTHER TENANTS.

One tenant in common in personalty may settle for or release his interest in the common property, but cannot settle for or release the interest

of his co-tenants. 5. SAME-RELEASE BY ONE TENANT--SUIT BY CO-TENANT,

Where one tenant in common has settled for his portion of the damages on account of the act of another with respect to the common property, be

fore action therefor, his co-tenant may sue without joining him. 6. SAME-ESTOPPEL.

Where defendant had settled with plaintiff's co-tenants for their shares of the money received by him from another who had sold the common property, defendant could not object to plaintiff's suing alone for money

concededly in his possession belonging to plaintiff. 7. CONVERSION-WHEN MAINTAINABLE-MONEY RECEIVED AS TRUSTEE

After demand and refusal to pay, an action for conversion will lie against one who has received money in a fiduciary capacity.

Parker, P. J., dissenting.
Appeal from Trial Term, Fulton County.

Action by Suzette Jackson against Dewitt C. Moore. From a judgment dismissing the complaint, plaintiff appeals. Reversed.

See 76 N. Y. Supp. 164; 84 N. Y. Supp. 1131.

Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ.

Jordan & Cassedy (Clark L. Jordan, of counsel), for appellant.
Dewitt C. Moore (Andrew J. Nellis, of counsel), for respondent.

CHASE, J. The defendant is an attorney and counselor at law. This action has been twice tried. The evidence now before us is materially different from the evidence presented to us on the former appeal. Jackson v. Moore, 72 App. Div. 217, 76 N. Y. Supp. 164. On November 10, 1896, the plaintiff and her two brothers, Paul and George, conveyed to one K. certain real property, and on the same day an agreement was entered into by and between K. of the first part and the plaintiff and her two brothers of the second part by which K. agreed to pay and discharge certain mortgages on said real property and certain costs, taxes, and expenses, and sell and dispose of said real property, and divide the net proceeds thereof "two-thirds thereof

13. See Tenancy in Common, vol. 45, Cent. Dig. $ 144.

and 121 New York State Reporter to the said party of the first part and one-third thereof to the said parties of the second part.” K. subsequently sold said real property, and onethird of the net proceeds thereof was $812.82. K. claimed that he had been obliged to pay and discharge certain undisclosed liens on the share of plaintiff's brother Paul in said real property, which payments amounted to more than Paul's share in said net proceeds, and, a controversy having arisen with K., the plaintiff's brothers employed defendant to collect of K. the net proceeds of said real property pursuant to said agreement. Defendant and plaintiff's brother George called on the plaintiff, and asked her to join with her brothers to enforce collection of said net proceeds froin K., and defendant said to plaintiff, “Now, then, if you will join with your two brothers, and give me authority to collect this of Mr. Keck, I will not charge you one cent for what I do for you.” Defendant explained to plaintiff why he was willing to act for her without charge. Plaintiff then gave to the defendant a power of attorney to ask, demand, sue for, recover, and receive of K. any moneys due and owing to her from him by virtue of said agreement. Thereafter the defendant brought an action in the name of the plaintiff and her two brothers against K. for said one-third of said net proceeds, and K. brought an action against plaintiff and her two brothers for breach of warranty in the deed given by them to him. Subsequently both actions were discontinued, and the whole matter was settled by K. paying to the defendant $521.60, and releases previously executed by plaintiff and her brothers were delivered to K The final payment was made by K. to the defendant in August, 1899. Plaintiff was not notified of the settlement. On December 2, 1899, in answer to a letter written by the plaintiff to the defendant, he wrote to her as follows:

"I do not wonder that you should become somewhat impatient at the delay which has attended the settlement of these cases, but you know the law's delay is proverbial and promptness is an exception to the general rule. I had expected before this to be able to call upon you and have matters adjusted, but I have been unable to do so and have neglected to write you. I will endeavor to have matters closed up as soon as possible in accordance with the wishes expressed in your letter.”

When such letter was written the defendant had for about four months been in the possession of the plaintiff's share of said net proceeds. In February, 1900, plaintiff was informed by one other than the defendant that the defendant had collected her money. Plaintiff then went with her husband to the defendant, and her testimony in relation thereto is as follows:

"I asked him if it was true that Mr. Keck had paid him that money, and be said it was. * * * I asked him if he could pay me that money that afternoon. He said no, he could not. I asked him when he could pay it, and he said he would come out on Saturday. I asked him how much was due me, and he said about $260; that it had taken some of George's share some mones

to pay up Paul's indebtedness, so Paul had nothing in it; that he had given George more than belonged to him, so that all the money he had in his hands he held intact for me-about $260."

The defendant failed to keep this and other engagements with the plaintiff, and subsequently plaintiff employed her present attorneys, and, after some correspondence by them with the defendant, the defendant, in an interview with one of such attorneys, asked how much the plaintiff claimed, and he was told “$260.80." Defendant said, “That is all right, but what about my fees ?” Demand was then made on behalf of the plaintiff for the $260.80, and the defendant refused to pay it, and further said, “I cannot pay to-day, anyway." This action was then commenced.

By undisputed testimony it now appears that the defendant, under a power of attorney from the plaintiff, and acting for her and her two brothers, settled with K. on behalf of each of them. The evidence further shows that the defendant admitted to the plaintiff that her brothers had received their full share of the amount collected by him, and that he had in his hands $260.80 of the amount so collected, which amount was the share of the plaintiff. On such undisputed statement and undenied admissions the reasons mentioned in the former opinion of this court why the plaintiff should not be allowed to recover on the merits are answered and overcome.

The plaintiff and her brothers were tenants in common in the real property sold to K., and under the agreement they became tenants in common of one-third of the net proceeds thereof. Such net proceeds was personal property. In the absence of any evidence on the subject, the shares of several tenants in coinmon are presumed to be equal. Am. & Eng. Ency. of Law, vol. 17, 651; Baumann v. Guion, 21 Misc. Rep. 120, 46 N. Y. Supp. 715. As a general rule, tenants in common of personal property must join in bringing actions, whether arising ex contractu or ex delicto. Hill v. Gibbs, 5 Hill, 56. One tenant in common can' settle for or release his interest in such personal property, but he cannot settle for or release the interest of his co-tenants. If one tenant in common should settle for his portion of the damages before action, the other may sue without joining him. Gock v. Keneda, 29 Barb. 120. When the interests are separate, or have been severed, the tenants must sue separately. Ency. Pleading & Prac. vol. II, 772. The record contains evidence which, undisputed, is sufficient to show that the plaintiff and her brothers were equally interested in said onethird of said net proceeds, and that they and the defendant have treated such proceeds as owned severally by the plaintiff and her brothers in equal shares, and that the defendant has paid and settled with the plaintiff's brothers for their shares, leaving the plaintiff's share in such proceeds separate from and independent of the shares of her brothers. When demand was made upon the defendant for payment to the plaintiff of the amount claimed by her, the only objection made by him, other than his inability to pay, was that the plaintiff should allow him something for his services in her behalf. If the defendant has paid and settled with the plaintiff's two brothers for their shares in the moneys received of K., he should not be allowed to object to the plaintiff's maintaining this action in her individual name for the amount concededly in his possession belonging to her. If there is a dispute as to whether the defendant is entitled to deduct anything from the amount remaining in his possession for services performed by him for the benefit of the plaintiff in the collection thereof, such question is one of fact to be determined on the trial.

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