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App. Div.]

Second Department, March, 1910.

$20,814.00," and "that the reasonable value of plaintiff's said manucript on Torts delivered to defendant amounting to 400 pages and the literary property therein was and is the sum of $2,400." The court concluded: "5. That the provisions of said contract providing for the payment by defendant of said sum of $6.00 per page only when and as sales of the book shall have been made in sufficient amount, constitute a condition for the benefit of defendant which he might waive. 6. That defendant, by causing the copyright of Corporations to be taken out in the name of the Keefe-Davidson Company, waived the condition that said $6.00 per page should be payable only when and as sufficient sales should have been made, and defendant became at once liable to plaintiff for the full amount of $6.00 per page of Corporations, less all amounts previously paid or advanced to plaintiff. * * * 10. That the contract between the parties is severable as to each of the different books specified therein, so that full performance by the plaintiff in respect to the first book, Corporations, entitles him to the stipulated compensation therefor. 11. That plaintiff's right to recover under the contract the stipulated compensation for the work on Corporations does not depend upon defendant's breach in causing the copyright of Corporations to be entered in the name of Keefe-Davidson Law Book Company." A judgment for $13,876 with interest upon the first cause of action is directed, and for $1,600 dain ages upon the second cause of action. There is evidence to sustain the finding as to Torts, for the plaintiff testified on crossexamination that his services on that work were worth six dol lars per page. This evidence was not given respecting Corporations, and reflects faintly, if at all, the value of plaintiff's services respecting that work. But the complaint and finding as to Corporations do not touch the value of plaintiff's services thereon. The complaint relates to the value of the copyright and the finding to the contract price. But as the contract is made a part of the complaint, the finding and pleading may be reconciled. This find ing must rest on the terms of the contract. But the contract fixes the price at an "advance payment of $2 per page, the balance being contingent, among other things, upon publication of the books and returns from sales." (Clark v. West, 193 N. Y. 349.) Plaintiff contends that defendant's breach converted a contingent into an

Second Department, March, 1910.

[Vol. 137. absolute obligation to pay. It has been concluded that the defendant was guilty of a breach, and that plaintiff could refuse to go on with the work. Defendant's breach made performance impossible according to the terins of the contract. The additional four dollars per page could not be earned as the contract contemplated, because the defendant had disorganized the contractual rights. Hence the plaintiff could sue for the additional four dollars per page, and defendant could not gainsay the demand by the plea that the works contemplated in the contract had not earned the additional amount or any part thereof. The defendant could not violate his contract and insist that plaintiff fulfill to earn his compensation. The arrangement was not to give the defendant credit. It was to let the carnings of the books measure the payment. But such earnings were to be in accordance with the contract fulfilled and not broken by defendant. When a party breaks his contract in a respect that affects the time or manner of his promised payment, he must pay irrespective of the advantage secured to him. (Jones v. Judd, 4 N. Y. 411, 414; Nichols v. Scranton Steel Co., 137 id. 471; Kokomo Strawboard Co. v. Inman, 134 id. 92.) If this be true with reference to mere occasions of payment, it should be equally true respecting a payment depending upon the promisor earning from the sale of the product of the promisee's services. The plaintiff was not obliged to fulfill on his part a contract broken on the defendant's part before he could recover the compensation which the contract contemplated. (Wharton & Co. v. Winch, 140 N. Y. 287.) The defendant took, unconditionally, a copyright which he by right could take only conditionally. A party entitled to earn a sum payable before compulsory payment may not distort the contract by such breach and thereupon insist that the requisite sum has not been earned because the other party has refused to continue the work. What the offending party defeats should in this instance be regarded as done.

The judgment should be affirmed, with costs.

HIRSCHBERG, P. J., JENKS, BURR and CARR, JJ., concurred.
Judgment affirmed, with costs.

Second Department, March, 1910.

App. Div.]

In the Matter of the Application of THE CITY OF NEW YORK, Relative to Acquiring Title, etc., for the Purpose of Opening Carroll Street, from Albany Avenue to East New York Avenue, in the Twenty-fourth and Twenty-ninth Wards of the Borough of Brooklyn, the City of New York.

MELANIE PFIZENMAYER, Appellant; THE CITY OF NEW YORK and REMSEN REALTY COMPANY, Respondents.

Second Department, March 4, 1910.

Municipal corporations - eminent domain - street opening, city of New York court cannot alter report-awards- condemnation of street already open to public- rights of abutting owners.

On reviewing the report of commissioners of estimate and assessment in a street opening in the city of New York the court has no power to change an award made to a certain person so as to make it payable to unknown owners, but must follow the procedure prescribed by section 986 of the charter and return the report to the commissioners, or to new commissioners, for revision and correction.

It seems, that one owning merely a naked fee in a street already thrown open to public use and not subject to assessment for benefits received when the street is acquired by the city of New York, is not entitled to substantial damages, for her fee is already subject to a right of way, and additional burdens would be put upon abutting owners assessed for benefits received.

It seems, that upon awarding damages on taking the fee of a street already subject to a public use, the commissioners should consider the claims of abutting owners who are assessed for benefits received.

APPEAL by Melanie Pfizenmayer from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 1st day of March, 1909, directing the clerk of the court to change an award to the appellant, made by commissioners of estimate and assessment of the city of New York, so that the same should be payable to an unknown

owner.

The property taken was embraced within a street which had been thrown open and used under the name of Carroll street, but which had not become a public street by dedication, or the acquisition of title by condemnation proceedings. Lots had been sold abutting upon this street, which gave to the owners, as against their grantors and predecessors in title, an easement for ingress and

Second Department, March, 1910.

[Vol. 137.

egress upon and over the land forming the street. In 1901 the appellant took title to lands on both sides of this street and abutting thereon. The description in such deed of the two parcels, title to which was later acquired by the Remsen Realty Company, commences in the south line of Carroll street and runs thence easterly "along the southerly side of Carroll street," thus excluding the street. The description of the first parcel was followed by the words: "Also all the right, title and interest of the party of the first part of, in and to Carroll Street and Utica Avenue, lying in front of and adjoining said premises, to the centre lines thereof respectively," and immediately after the description of the second parcel the following: "Also all the right, title and interest of the party of the first part of, in and to Carroll Street, lying in front of and adjoining said premises to the centre line thereof." She subsequently conveyed these lots to one Breivogel, who conveyed them to the Remsen Realty Company, who claims to share in the award. In these last conveyances the land is limited by the street line as in the conveyance to the appellant, and the grantors did not assume to convey any title to or interest in the street.

George A. Voss, for the appellant.

James F. Quigley [Archibald R. Watson with him on the brief], for the respondent The City of New York.

Robert H. Haskell, for the respondent Remsen Realty Company. RICH, J.:

The city does not appeal, and the only question presented is whether the court at Special Term had authority to alter and change the report of the commissioners. The charter of Greater New York (Laws of 1901, chap. 466, §986), provides as follows: "The said court shall by rule or order, after hearing any matter which may be alleged against the same, either confirm the said report in whole, or in part, or refer the same, or a part thereof, to the said commissioners for revisal and correction, or to new commissioners, to be appointed by the said court to reconsider the subject-matter thereof, and the said commissioners to whom the said report or part thereof shall be so referred shall return the same report or such part thereof, corrected and revised, or a new report to be made by them in the premises to the said court without unnecessary delay; and the same on being so

Second Department, March, 1910.

App. Div.] returned shall be confirmed or again referred by the said court in manner aforesaid, as right and justice shall require, and so from time to time until a report shall be made or returned in the premises, which the said court shall wholly confirm." Said section has been amended by chapter 658 of the Laws of 1906, but, so far as it is applicable to this case, no substantial change has been made. (See Matter of City of New York [West 162d Street], 125 App. Div. 485, 490; affd., 192 N. Y. 570.) The language of this charter section is clear, and it will be seen that no authority is given the court to change the decision and report of the commissioners. The power is limited by the procedure created by the Legislature to returning the report and award to the commissioners, or to new commissioners for revision and correction. I think it was error, therefore, to direct the clerk to change the report in so material a matter, and as so changed to confirm it. It may be that, because the award is not challenged as to amount by either party, and no appeal is taken by the city, it is not a proper subject for our consideration and that we cannot upon this appeal determine whether a case is presented in which substantial damages should have been awarded, but in view of the conclusion I have reached, it is proper that I should state the conclusions of this court upon that subject. Assuming that the appellant acquired title to the street by her deed, she was, after she conveyed to Breivogel, the owner of the naked fee only. She owns no property abutting on that portion of the street and for that reason is not subject to assessments for benefits. Her fee was subject to the right of ingress and egress over the land in the street, and in view of these facts a case is not presented in which substantial damages should have been awarded her. The city took from her a naked, unproductive fee, incapable of pecuniary advantage, useless, bereft of enjoyment and incapable of earning, and in the absence of reliable evidence establishing the contrary, the land must as to her be held to have possessed nominal value only. The Remsen company, because of its ownership of the abutting land, was assessed in a substantial sum for the improvement, although it really obtained no greater benefits after the street was made a public street than it possessed in the same land when it was a private street. We are unable to see how she was substantially damaged in taking the burdened fee, or

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