decreeing specific performance. Whatever understanding there was between the parties, the plaintiff has failed to perform what was to be performed upon its part. The complaint does not allege that the defendant has threatened or is about to disclose the secret processes which he used in the business prior to the time that it was purchased by the plaintiff. The only allegation as to threatened disclosures is contained in the second cause of action, which relates merely to the improvement of the secret processes made by the defendant subsequently to the purchase of the business, but it is not alleged, nor was it proved, that there was any agreement by which the plaintiff should be the owner of the secret processes discovered by the defendant after the plaintiff purchased the business; and there is not a particle of evidence in the case to show that the defendant has ever threatened to or has ever disclosed such secret processes to any one. The only evidence is that when the defendant left the plaintiff's employ he organized a company to carry on the business which he had before been employed by the plaintiff to carry on. In the absence of an allegation that the defendant was about to divulge the processes of which he had acquired a knowledge while engaged in the plaintiff's business, or in the business that had been acquired by the plaintiff, it certainly was not entitled to an injunction restraining such disclosures; and the only evidence at all in the case is that the defendant, having left the plaintiff's employ because the plaintiff had refused to give him an interest in the business, is about to continue a business to earn his own livelihood, and, in continuing that business on his own account, to use the knowledge that he has acquired, and which, it is not alleged or proved was the property of the plaintiff. I think, therefore, that the whole evidence clearly shows that there was no contract binding upon the defendant, which the plaintiff was entitled to enforce, and that there was no evidence to show that the defendant was either about to or had violated any duty which he owed to the plaintiff, or that entitled the plaintiff to any relief. For these reasons I think the complaint was properly dismissed, and that the judgment should be affirmed, with costs.

BARRETT, J. I concur with Mr. Justice INGRAHAM in this case. The question presented to us is not whether the contract was enforceable at law. Such cases as Miller v. McKenzie, 95 N. Y. 575, and Beckwith v. Brackett, 97 N. Y. 52, have, therefore, no application. It is undoubtedly good law that a promise to pay, given by A. to B., in consideration of future services to be rendered by the latter, becomes valid and binding upon the rendition by B. of the services, in reliance upon A.'s promise. But how could such a contract be specifically enforced in equity? It seems to me that any discussion of the doctrine of consideration, in this aspect, or in its relation to an action for damages for breach of the contract, only tends to obscure the real question. That is. whether the contract here is such that it can be specifically en forced. Upon this question the acts of the parties under it are of

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but little moment. Equity looks at the terms of the contract itself, not at its sequences or results. In my judgment, this contract can not be specifically enforced,-not because of anything the plaintiff did under it, but because of what it had the power to do. Equity cannot aid the plaintiff, because the contract permitted it to discharge the defendant at its pleasure, and because its agreement to give him an interest in the profits was hopelessly indefinite. It would be a new doctrine of equity that a contract which fails to define with precision the legal obligation of one of the parties can be specifically enforced because, under it, that party acted fairly, and did the best he could in view of subsequent conditions. It is the agreement as made, not as it turns out, which the court is authorized to enforce. Thus, it is not of the slightest consequence whether there were profits or not, or whether the defendant left the plaintiff on that account or not. He is not sued for a breach of his contract. He is sought to be held to it. And this cannot be done, because if it were the other way the plaintiff could not be held to it. The plaintiff may employ the defendant at $25 per week, and it may give him some kind of an interest in the profits. And it may not. The court certainly could not compel it to do so. How can this plaintiff seriously ask us to specifically enforce such a contract against the defendant so long as it desires? I do not wish to be understood as limiting my concurrence with Mr. Justice INGRAHAM to this single question of law. I also concur in his conclusions upon the facts, and upon the other questions which he discusses.

(28 App. Div. 469.)

SCHAEFER v. EMPIRE LITHOGRAPHING CO.

(Supreme Court, Appellate Division, Second Department. April 19, 1898.) COUNTERCLAIM-DISTINCT TRANSACTIONS.

In an action in tort for the conversion of plaintiff's property by defendant. with whom it had been stored, a demand by defendant for storage for the period prior to the alleged conversion does not arise in the same transaction as that from which the plaintiff's claim springs, and is not a proper counterclaim.

Appeal from special term, Queens county.

Action by William E. Schaefer against the Empire Lithographing Company. From an interlocutory judgment sustaining a de murrer to a counterclaim, defendant appeals. Affirmed.

Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and WOODWARD, JJ.

Edgar J. Lauer, for appellant.

Thomas A. McKennell, for respondent.

CULLEN, J. The complaint is plainly in tort for the conversion of the property, and not on contract for a breach of the agreement for storage. A demand for the value or price of the storage is not a proper counterclaim in such an action. It does not arise

in the same transaction as that from which the plaintiff's claim springs. The plaintiff's cause of action is based on the sale and disposition of the property by the defendant. The defendant's claim is founded on its services in storing the property previous to the time of the alleged conversion. Plainly, the storage of the property before it was sold and the sale of the property were dif ferent transactions.

The interlocutory judgment appealed from should be aflirmed, with costs. All concur.

(28 App. Div. 491.)

DOWNEY v. TURNER.

(Supreme Court, Appellate Division, Second Department. April 19, 1898.) ACTION FOR COMMISSION-PLEADING.

In an action by a real-estate broker for commissions, the complaint assumed to set forth two causes of action, the first alleging the contract between the parties providing for a commission for leasing and a commission for selling the property in question, and the fact of a leasing procured through plaintiff, while the second merely alleged that the tenant thus procured also took at the same time, and subsequently exercised, an option to buy. Held that, while it was very doubtful whether the so-called "second cause of action" stated sufficient facts by itself to constitute a cause of action, yet, as all the allegations of the complaint might be taken together, as stating only one cause of action for two commissions growing out of the contract of brokerage, the motion to dismiss the second cause of action was properly denied.

Appeal from trial term, Westchester county.

Action by Henry B. Downey against Elizabeth Turner. From a judgment entered on a verdict, defendant appeals. Affirmed.

Argued before GOODRICH, P. J., and BARTLETT, HATCH, and WOODWARD, JJ.

Louis Wertheimer, for appellant.

Arthur Ludlow Clark, for respondent.

WILLARD BARTLETT, J. There is no notice of appeal from the order denying the defendant's motion for a new trial, and therefore we cannot consider any question as to the weight of evidence. The complaint assumes to set out two causes of action. Under the first alleged cause of action, it is averred that the plaintiff was employed by the defendant to lease or sell certain real estate belonging to her at New Rochelle, for which services the defendant agreed to pay a commission of 21 per cent. upon the rental, and the same commission upon the purchase price of the premises, if the plaintiff should procure a purchaser. It is further alleged as a part of the first alleged cause of action that the plaintiff procured a tenant for the premises for one year, at a rental of $660. There is also a claim in the same part of the complaint of $2 for drawing the lease. In the second alleged cause of action it is alleged that the tenant, at the time of renting the premises, required a covenant to be inserted in the lease giving him the privilege of purchasing the property, at any time during the exist ence of the lease, for $8,500; that said condition was duly inserted; and that, subsequently, during the term, the tenant bought the prop

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erty at the agreed price, whereby the plaintiff became entitled to his commission of 23 per cent. The plaintiff prevailed upon the trial, and the defendant appeals.

The first point made in behalf of the appellant is that the trial judge erred in denying a motion made at the beginning of the trial to dismiss the second cause of action. I think it very doubtful whether that part of the complaint which is designated as a second cause of action really states sufficient facts in and of itself to constitute a cause of action against the defendant. It seems to me, however, that the complaint really states only one cause of action. growing out of the contract of brokerage between the defendant and the plaintiff; the averments in the "first cause of action," so called, showing that the plaintiff had earned the agreed commission upon the rental, and the averments in the so-called "second cause of action" showing that he had earned the agreed commission upon the sale of the premises. In this view of the pleading, the refusal to dismiss the so-called "second cause of action" was proper.

The motion to dismiss the second cause of action was renewed when the plaintiff rested, and was again denied. Under the appellant's second point, it is argued that this was error because there was no testimony to show that the plaintiff ever attempted to sell the premises for the defendant. Proof to that effect, however, may be found at several places in the record.

The third and fourth points relate to rulings as to the admissibility of evidence, both of which were plainly right.

Under the fifth point, it is contended that the verdict was, in any event, too large by the sum of $37. This proposition seems to be correct. Although the price stated in the lease as that at which the lessee might purchase was originally $8.500, it was changed to $7,500 before the lease was executed; and was finally reduced to $7,000, which the lessee testified was the actual price paid. The amount of the verdict, however, shows that the commissions were calculated on $8,500, instead of $7,000; but there is no exception raising any question as to this amount; and, as the defendant has not appealed from the order denying her motion for a new trial, I do not see how this court can correct the error.

Judgment affirmed, with costs.

All concur.

(28 App. Div. 472.)

MURPHY v. ALTMAN et al.

April 19, 1898.)

(Supreme Court, Appellate Division, Second Department. INJURY TO SERVANT-INDEPENDENT CONTRACTORS-ASSUMPTION OF RISK. Where an owner who is erecting a building makes separate contracts with competent contractors for different parts of the work, each contractor or his workman takes the risk, so far as the owner is concerned, of fault on the part of the fellow contractors, and his only recourse is against the party who, either personally or through his servants, has been guilty of fault."

Appeal from trial term, Kings county.

Action by Bridget Murphy, as administratrix of James Murphy, deceased, against Benjamin Altman and others. From an order denying plaintiff's motion for a new trial, she appeals. Affirmed.

Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and WOODWARD, JJ.

Thomas F. Magner, for appellant.

Joseph Larocque, Jr., for respondents.

CULLEN, J. The defendant Altman, being the owner of a lot and building in the city of New York, entered into a contract with the firm of Marc Eidlitz Sons for the construction of certain additions and improvements to the building. The contract provided for the construction, in the basement of the new building or addition, of a fireproof vault. The door of this vault, which was of the same general character as the door of a safe, and the frame in which it was to be set, were to be provided by the respondent, but the contractor was to handle them after delivery and build them in. In all other respects the whole construction of the vault was to be performed by the contractor. During the progress of the work the respondent made a contract with the Bostedo Cash-Carrying Company to put a pneumatic tube system throughout the whole building. The door and frame of the vault were delivered by the manufacturers, the Mosler Safe Company, at the building of the respondent. At this time the foundation for the frame had not been built. Immediately upon the delivery of the door the contractor's workmen proceeded to construct a brick foundation, and they, together with the employés of the safe company, placed the frame and door in position on that foundation. The walls of the vault adjoining the door frame were not built up. The plaintiff's intestate, a workman for a subcontractor of the Bostedo Company, was passing the door shortly after it had been placed in position, when it fell upon him, inflicting injuries from which he died. This action is brought against the respondent, as owner, the contractors, and the safe company for their alleged negligence in causing the death of the plaintiff's husband. At the close of the evidence the complaint was dismissed as against the respondent; afterwards the plaintiff moved for a new trial, and from an order denying that motion this appeal is taken.

The appellant contends that it was the duty of the respondent, owning and occupying the real property, to use reasonable care to see that the premises were in such condition that the plaintiff's intestate, lawfully upon them, would not be injured. In support of this claim is cited Flynn v. Railroad Co., 142 N. Y. 439, 37 N. E. 514, where it was held: "The general rule applicable to persons. occupying real property for business purposes is that they must use reasonable prudence and care to keep their property in such a condition that those who go there shall not be unreasonably and unnecessarily exposed to danger. The measure of their duty is reasonable prudence and care." We concede that it was the duty of the defendant Altman to use reasonable care in the construction of his building. But the question is, what care was required of him? The case of a building in the course of construction is very different from that of a completed structure, which is used and occupied for business purposes, which persons are invited to en