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and 121 New York State Reporter The learned counsel for the appellant also insists that the pleading is bad, in that the plaintiff has not pleaded performance of the condition precedent. The pleader states that, in consideration of the plaintiff giving his services and allowing his name to be used in raising the sum of $21,600 for the purpose of said business, the said defendants promised and agreed to give to him an equal share in the profits thereof while he continued to act and perform services on behalf of said copartnership business, and that the said plaintiff continued to superintend the said business and act on behalf of the said partners therein from the said 15th day of August, 1902, until the 21st day of February, 1903. The criticism is that the pleader has not sufficiently alleged that the plaintiff did allow his name to be used in raising the sum of $21,600. I think that there is force in the criticism, but, even if it be sound, it is not enough to support the demurrer. It cannot be assumed that the contract was entire, in the sense that failure to permit the use of the plaintiff's name defeated his right to any share in the profits, although he performed services and acted for the defendants. The question is whether, upon the facts stated, the plaintiff is entitled to any relief whatever. Strubbe v. Kings County Trust Co., 60 App. Div. 548, 550, 69 N. Y. Supp. 1092, affirmed in 169 N. Y. 603, 62 N. E. 1100, Jaquies v. Morris, 2 E. D. Smith, 639, 643; Price v. Brown, 10 Abb. N. C. 67. We cannot say that he is not.

The interlocutory judgment should be affirmed, with costs. All concur.

PACHE V. OPPENHEIM. (Supreme Court, Appellate Division, First Department. April 15, 1904.) 1. BURIAL EXPENSES_PAYMENT BY HUSBAND-LIABILITY OF WIFE's ESTATE.

A husband has a right of recovery against the estate of his deceased wife for the reasonable expenses incurred and actually paid in connection with her burial, notwithstanding his common-law obligation to see to the

proper interment of the remains of the deceased. 2. SAME-ACTION-JURISDICTION-MUNICIPAL COURT-STATUTE.

Under Greater New York Charter, subd. 1, § 1364 (Laws 1897, p. 485. C. 378), granting the Municipal Court jurisdiction of actions to recorer damages upon or for breach of contract, express or implied, that court has jurisdiction of an action by a husband against the executor of his de ceased wife's estate to recover for the reasonable expenses incurred and

paid by him in connection with her burial. Appeal from Appellate Term.

Action by Charles Pache against Bertha Oppenheim, executrix of the estate of Eliza Pache, deceased. From a judgment of the Appellate Term affirming a judgment sustaining a demurrer to the complaint (84 N. Y. Supp. 926), plaintiff appeals. Reversed.


1. See Executors and Administrators, vol. 22, Cent. Dig. § 755; Husband and Wife, vol. 26, Cent. Dig. $$ 136, 594.

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Omar Powell, for appellant.
Edward W. S. Johnston, for respondent.

PATTERSON, J. This action was brought in the Municipal Court of the city of New York, and the plaintiff alleged in his complaint that Eliza Pache died at the city and county of New York on the 26th day of February, 1902; that he was her husband; that the defendant is the executrix of the estate of his deceased wife, and duly qualified as such executrix; that his wife died, leaving property sufficient and ample to satisfy and pay all her debts and funeral expenses; and that one Stolzenberger, an undertaker, took charge of the funeral arrangements, and performed certain services in connection therewith, and furnished materials therefor, for which he rendered a bill to the plaintiff, as husband of the deceased, which bill the plaintiff paid, and that the charges therein were the reasonable value of the services rendered and the materials furnished by the undertaker; that the plaintiff presented his claim as one against the estate of his deceased wife, and offered to refer it; and that, being refused by the executrix, this action was brought.

Concerning the liability of the estate of the deceased wife to the husband for the funeral expenses thus paid, we must follow the authorities in this state, which hold that a husband has a right of recovery of the reasonable expenses incurred and actually paid in connection with the burial; the common-law obligation of the husband to provide for the proper sepulture of his wife being a matter which never has been disputed. The necessity of providing for the proper interment of the remains of the wife before an executor acts or may act indicates at once the duty of the husband, and, indeed, it was a rule of the common law that any one in whose house a person died was under the obligation to see to the proper interment of the remains of the deceased. Lord Denman in Key v. Stewart, 12 A. & E. 773. But notwithstanding this common-law obligation, it has been held by the courts of this state that, under the law as it exists here, the husband, having paid this reasonable expense, may recover from the wife's estate; and that was distinctly ruled in Patterson v. Patterson, 59 N. Y. 574, 17 Am. Rep. 384. The liability of the estate of the wife for reimbursement to the husband is also recognized in McCue v. Garvey, 14 Hun, 562, where, upon the settlement of the accounts of a husband as administrator of the estate of his deceased wife, he was allowed out of her estate the necessary and proper funeral expenses paid by him. In Freeman v. Coit, 27 Hun, 450, Judge Daniels, referring to Patterson v. Patterson and McCue v. Garvey, says that in this state, where such an expenditure has been made by the husband, and the deceased wife has left a separate estate owned by her, he has been allowed to reimburse himself from such estate; and we held in Patterson v. Buchanan, 40 App. Div. 493, 58 N. Y. Supp. 179, that such an action as this would lie. It is argued, however, that the decision in that case has been virtually overruled by what is said by the Court of Appeals in O'Brien v. Jackson, 167 N. Y. 31, 60 N. É. 238, but what was there decided has no such effect, and does not apply here. We arree with the Appellate Term, therefore, that the plaintiff

87 N.Y.S.-45

and 121 New York State Reporter might recover upon the cause of action asserted in the complaint; but this action was brought in a Municipal Court, and the learned justices of the Appellate Term are of the opinion that it could not be maintained in the Municipal Court, because its jurisdiction is confined to contracts, express or implied, and they considered that the obligation sought to be enforced here did not arise upon either an express or an implied contract, but that there was only a quasi contractual relation, of which the Municipal Court could not take jurisdiction. If an executor is liable for the expenses of the burial of the testatrix, from that obligation the law implies a promise to him who, in the absence or neglect of the executor, directs, not officiously, but from the necessity of the case, a burial, and incurs the reasonable expense thereof. Patterson v. Patterson, supra. In Rappelyea y. Russell, i Daly, 217, it is said that it is well settled that an executor, if he have sufficient assets, is liable upon an implied promise to a third person who, as an act of duty or necessity, has provided for the interment of the deceased, if the funeral was conducted in a manner suitable to the testator's rank in life, and the charge is fair and reasonable; citing Tugwell v. Hayman, 3 Camp. 298; Rogers v. Price, 3 Young & J. 28; Corner v. Shew, 3 Mee. & Wells. 350; Brice v. Wilson, 8 A. & É. 348, note; Hapgoo! v. Houghton, 1o Pick. 154.

The learned Appellate Term regarded the Municipal Court as being without jurisdiction to entertain this action, because the obligation existing upon the part of the estate was one which did not rest either in express or implied contract, but was one that arises from an imposed legal obligation which had the status of a quasi contract; and they considered that a quasi contract was not an implied contract, within the meaning of the Municipal Court act. The provision of law respecting the jurisdiction of the Municipal Court, so far as it relates to the present action, is as follows: Except as otherwise provided, that court has jurisdiction of (subdivision 1, § 1364, Greater New York Charter; Laws 1897, p. 485, c. 378) "an action to recover damages upon or for breach of contract, express or implied, other than a promise to marry. where the sum claimed does not exceed five hundred dollars.” Of course, it is understood that the jurisdiction of local and inferior courts is not to be extended or amplified by construction, but is to be confined within the limits of that which is conferred. But in the case of the Municipal Court in the city of New York, the jurisdiction conferred is not simply of actions to recover damages for the breach of contract, express or implied, other than a promise to marry, but it extends to an action brought to recover damages upon contract

, express or implied. The phraseology of this subdivision i of section 1364 of the Greater New York charter indicates the purpose of the Legislature, in the establishment of the Municipal Court, to define what jurisdiction it shall have in actions upon contract; and it is well understood that, for the purposes of remedial justice, actions based upon obligations not resting in consent actually given or implied from facts, but upon what are called quasi or constructive contracts, are put in the same category as actions upon contract, express or implied, in which the element of consent actually exists, or is to be inferred, as matter of fact, from the circumstances out of which the obligation arose.


In Wickham v. Weil, 17 N. Y. Supp. 518, the General Term of the Court of Common Pleas, speaking through Judge Pryor, sums up the situation in a few words, as follows:

"Three classes of obligations are known in law as contracts, and are especially so distinguished for the purposes of remedial justice, namely, express contracts, implied contracts, and constructive contracts. Express contracts are those the terms of which are averred and uttered by the parties. Broom, Com. Law, 250. Implied contracts are such as reason and justice dictate, and which the law therefore presumes that every man undertakes to perform. 2 Bl. Comm. 413. Constructive contracts arise when the law prescribes the rights and liabilities of persons who have not in reality entered into any contract at all, but between whom circumstances make it just that one should have a right, and the other be subject to a liability, similar to the rigbts and liabilities in cases of express contract.”

These constructive contracts are quasi contracts.

Now, an action upon contract may be maintained on quasi contracts. As, for instance, actions for money had and received (Merchants’ Bank v. Rawls, 50 Am. Dec. 394), money paid by one person, who has been compelled to pay it, and which another should have paid (Wells v. Porter, 7 Wend. 119), and cases in which an obligation to pay money is imposed by statute (Pacific Mail Steamship Co. v. Joliffe, 2 Wall. 450, 17 L. Ed. 805), and not connected simply with the imposition of a penalty. It has been held that an action for money had and received may be maintained in the Municipal Court. Dechen v. Dechen, 59 App. Div. 166, 68 N. Y. Supp. 1043.

Whether the obligation arising from a quasi contract is one imposed by statute, or arising from some general principle of law, is immaterial. Assuming that the whole relation is one quasi contractual, and that no contract, as matter of fact, exists at all, yet, for the purpose of a remedy, the quasi contract is considered as if it were an actual contract; and when an action within the limitation of $500 is brought in a Municipal Court on such an obligation, it is an action for damages upon contract, and the jurisdiction attaches.

The determination should be reversed, with costs, and the demurrer overruled, with costs, with leave to the defendant to withdraw demurrer and to answer in the Municipal Court, in accordance with the rules and practice of that court, upon payment of costs in all the courts. All concur.


(Supreme Court, Appellate Division, Second Department. April 15, 1904.) 1. MUNICIPAL COURTS-JURY TRIAL-DENIAL.

After a default for defendant's failure to appear had been opened on terms that defendant should make a deposit in court to secure any judgment that might be recovered, and answer before a certain date, defendant's counsel requested a jury trial, and offered to pay the amount required for the venire, which the court denied, and continued the case to the date on which defendant was required to answer. On that day defendant filed an answer, renewed his application for a jury trial and his tender of the jury fee, which the court again denied. Held that, notwithstanding Municipal Court Act, Laws 1902, p. 1535, c. 580, $ 145, providing that issue must be joined on the return day of the summons, except as otherwise expressly provided, issue was not in fact joined until the filing and 121 New York State Reporter of defendant's answer, and hence his demand for a jury trial was in time under section 231 (page 1557), providing that at any time when an issue of fact is joined either party may demand a trial by jury on payment of a specified fee, and, unless so demanded at the joining of issue, the jury trial is waived.

Appeal from Municipal Court, Borough of Brooklyn, Fourth District.

Action by Julius Levy against Abraham B. Roossin. From a Municipal Court judgment in favor of plaintiff, defendant appeals. Reversed.


Alexander B. Greenberg, for appellant.
Julius Levy, in pro. per.

WILLARD BARTLETT, J. This judgment must be reversed on account of the error of the Municipal Court in refusing the defendant a trial by jury when seasonably demanded by him. The action was brought to recover the value of professional services alleged to have been rendered to the defendant by the plaintiff as an attorney and counselor at law. The defendant suffered a default on October 30, 1903. On the 2d day of November following, a motion was made in the Municipal Court to open this default on the ground that his counsel had mistaken the tribunal in which he was summoned to appear, and had proceeded to the Municipal Court in the Fourth District of the borough of Manhattan, instead of to the Municipal Court in the Fourth District of the borough of Brooklyn. The default was opened upon the condition that the defendant should deposit in court $135 to secure any judgment that might be recorered, and that an answer be filed on or before November 6, 1903. When this direction was made, counsel for defendant asked for a jury, and offered to pay to the clerk the sum of $4.50 for a venire. The court denied the application for a jury trial, and counsel for the defendant excepted. On the adjourned day (November 6, 1903) the parties duly appeared before the Municipal Court, and counsel for the defendant filed an answer and renewed his motion for a trial by jury, and also renewed his tender of $4.50 for the jury fee. The court denied the application, and counsel duly excepted.

Section 231 of the New York Municipal Court act provides as follows:

"At any time when an issue of fact is joined, either party may demand a trial by jury, and unless so demanded at the joining of issue, a jury trial is waived. The party demanding a trial by jury shall forthwith pay to the clerk, the sum of four dollars and fifty cents. In default of which payment the court shall proceed as if no demand for trial by jury had been made." Laws 1902, p. 1557, c. 580.

The defendant had complied with all the requirements of the section cited, in order to entitle him to a trial by jury. He had offered to pay the prescribed fee and tendered the same, which was all that he could do in view of the refusal of the court to allow the clerk to receive it. Issue had not been joined in the action until the filing

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