Imágenes de páginas
PDF
EPUB

and 106 New York State Reporter

commissioner between the 5th and 8th of October, 1897, that, if he did not get his money before the 25th of the month, and did not get the measurements, he would have to stop work; that the pay was to be on the 25th of the month, and that he wanted the money to pay off the men for September; that he did not get any reply to that letter, and did not get his pay for the month of September; that he stopped his work on the 25th of October; that the only reason he stopped was that the city had neglected to pay him his money; and that, if he had received his money every month, he would have been able to complete his contract. He also said that the engineer did not come to measure his work for September until the 8th or 10th of October. The city furnishes no evidence in denial of these statements. No sufficient reason has been furnished by the city for its failure to make the payment under the fourth certificate, nor for the failure to make measurements promptly. Nor can I find in the evidence any reasonable justification for the act of the commissioner in declaring the contract abandoned, even though the city was not in default at the time. It was claimed upon the trial, upon behalf of the city, in justification of its course, as appears from the testimony of the chief engineer in the department of street improvements in the TwentyThird and Twenty-Fourth wards, that he visited the work about September 22, 1897, and that he saw only 8 or 10 men employed on the contract at the time, but he did not go down in the trenches. On the contrary, it appears from the testimony of the plaintiff, who was a superintendent for Reilly upon the work, in which he was corroborated by the original time book kept by him, that on September 22, 1897, there were 83 men, besides 2 teams and teamsters, employed, and about that number for some days thereafter; and that many of these were employed at the bottom of the sewer, where they could not be seen from the surface of the ground, leaving only 8 or 10 men visible above ground. He also said that there were, approximately, 167 to 169 men working there under Reilly in the month of October, 1897, up to the 25th of that month. The city also put in evidence a letter from Reilly, bearing date October 28, 1897, to the commissioner, as follows:,

"Your letter regarding our work in Williamsbridge received. We will be prepared to go ahead with the work Monday morning, and will do all in our power to push same. Regretting the delay, and trusting the above will be satisfactory, I am

"Yours respectfully,

Hugh J. Reilly, "Representing J. P. Armbrust & Co."

In view of the attending circumstances, I cannot see that the admission of delay contained in this letter furnishes a sufficient justification for the city, nor that it is a waiver of the default of the city in making the payment due. It would seem more correct to assume that it was written with the anticipation, on the one hand, that the moneys due might be paid in time to enable work to be resumed. at the time stated, and with the fear, on the other hand, that, if work was not resumed, the city might take the course which it afterwards did, and declare the contract abandoned. It seems to me clear from the testimony that the work was not voluntarily abandoned by the

contractors, and was not lawfully or rightly declared abandoned by the city. If I am correct in this conclusion, the question is presented as to how much the city should pay by reason of its interference with the work. It is well settled that, when a breach of contract of payment is made, the contractor is entitled, as damages, to at least the entire amount earned under the contract at that time without further performance. Jones v. City of New York, 47 App. Div. 39, 62 N. Y. Supp. 284; 57 App. Div. 403, 68 N. Y. Supp. 228. On this basis the following is a statement showing the amount earned under the contract at the time, viz. :

Amount earned and certified by first three certificates... Amount earned and certified by certificate No. 4, which was withdrawn

To this should be added work done after October 7, 1897, which was measured, but not certified, as appears by the testimony of Engineer Fitch, employed in the department of street improvements. to the value of..............

$22,343 72

4,620 18

4,320 49

Total

$31,284 39

From this should be deducted the payments made under the first three certificates ....

15,640 60

Leaving a balance due of.......

$15,643 79

To which should be added interest from the date of the service of notice that the contract was declared abandoned, November 11, 1897. The next question is the one arising between the Twelfth Ward Bank, the various claimants of liens upon the fund, and the city as to the validity of the assignment to the bank to secure Reilly's note. The assignment antedates the filing of any of the notices of liens, and, being prior in point of time, the bank is entitled to the preference to the extent of the moneys assigned, unless the assignment itself is, for some reason, invalid. Fortunato v. Patten, 147 N. Y. 283, 41 N. E. 572; McKay v. City of New York, 46 App. Div. 584, 62 N. Y. Supp. 58. Those opposed to the claim of the bank invoke the following provision of the contract in support of their theory that the assignment is invalid, viz.:

“(g) And the said party of the second part [the contractors] hereby further agrees that he will give his personal attention constantly to the faithful prosecution of the said work; that he will not assign or sublet the aforesaid work without the previous written consent of the commissioner of street improvements of the Twenty-Third and Twenty-Fourth wards, indorsed on this agreement, but will keep the same under his own control; that he will not assign, by power of attorney or otherwise, any of the moneys payable under this agreement, unless by and with the like consent, to be signified in like manner; that no right under this contract, nor to any moneys to become due hereunder, shall be asserted against the mayor, aldermen, and commonalty of the city of New York, or any department, bureau, officer, or officers thereof, by reason of any so-called assignment, in law or equity, of this contract, or any part hereof, or of any moneys due or to grow due hereunder, unless such assignment shall be authorized by the written consent of the commissioner of street improvements of the Twenty-Third and Twenty-Fourth wards indorsed on this agreement."

Neither the assignment by Armbrust to Reilly of the former's interest in the contract nor the assignment by Reilly to the bank received the written consent of the commissioner, evidenced by his written in72 N.Y.S.-10

and 106 New York State Reporter

dorsement to that effect upon the contract. The fact of this omission, if properly pleaded, would undoubtedly serve as a defense to the city to any claim made against it by an assignee of the contract, but here the claim of the bank is not made against the city, but against the 30 per cent. reserve payable under the contract. If these funds do not belong to the city, as has been held, it is a matter of no concern to it what parties are held to be entitled to receive them. More than this, the city has not put itself in a position to avail itself of this clause in the contract, because of its failure to plead it as a defense in its answer. Burke v. City of New York, 7 App. Div. 128, 40 N. Y. Supp. 81. Neither can this clause serve as a defense to the various parties claiming liens, for the reason that its sole purpose is for the protection of the city, and not of outside parties. That lienors cannot avail themselves of such a clause was decided in the case of Fortunato v. Patten, supra. The Twelfth Ward Bank is therefore entitled to be first paid the amount of its note against Reilly for $7,000 and interest out of the 30 per cent. reserve in the hands of the city. The amount earned under the contract being $31,284.39, as above shown, this reserve, without interest, amounts to $9,385.32, which is more than sufficient to pay the claim in full, and which leaves a very considerable surplus applicable to the payment of costs and of other liens and claims.

There remains the question as to the proper disposition of this surplus. In the arguments upon the trial and in the briefs of counsel various alleged defects in the numerous liens claimed by the parties and a multiplicity of defenses to each of the several liens and claims were pressed upon the attention of the court, some of which have much force; but they need not be considered, for since the submission of the case the attorneys for each of the parties who proved their liens or claims upon the trial, other than the bank, have joined in a stipulation agreeing upon a basis of distribution among them of the moneys which the court may find to be applicable to the payment of such liens and claims, and waiving all objections and exceptions to the other liens or claims filed or proved except to the claim of the bank. The stipulation also contains an agreement as to counsel fees. Neither the city nor the bank are parties to the stipulation. I conceive of no reason why force should not be given to the stipulation, except, possibly, that part of it relating to counsel fees. After the bank's claim is paid in full, it can have no further interest in antagonizing the claim of any other party or in the proportion of the fund paid to either of them. Nor can the city have any such interest. If the conclusion that the amount above stated has been earned under the contract, and has not been forfeited, is correct, it matters not to the city what claimants are held to be entitled to the fund. The contractors cannot complain, as the stipulation, except as to counsel fees, agrees to apply the moneys to the liquidation of obligations incurred under the contract. Armbrust's only interest is to save himself from personal liability, and Reilly has not answered. The only objection to the stipulation relating to counsel fees is that the amount agreed upon for counsel to the plaintiff exceeds the amount the court may lawfully grant by way of an allowance of costs. With this exception,

and after the payment of the costs and allowances hereinafter men tioned, the surplus may be distributed as provided by the stipulation I am unable to gather from the evidence anything upon which a personal liability against the defendant Armbrust can be sustained. The claims of all the parties to this effect against him were withdrawn upon the trial, except on behalf of the plaintiff and of the defendant Raymond; but counsel for neither of these parties has pressed this question in his brief, and I conclude that each has reached the same conclusion in this respect as was announced by the other parties on the trial.

Decision and judgment may be prepared in harmony with this opinion, with costs to the plaintiff, and an extra allowance of $750 in lieu of the amount of counsel fees stated in the stipulation, with costs to the Twelfth Ward Bank and an extra allowance of 5 per cent. on the amount of its claim, with costs to the defendant Armbrust and an extra allowance of $100, and with an allowance by way of costs to the several parties joining in the stipulation, other than the plaintiff, in the amounts therein stated, in lieu of the counsel fees therein agreed upon; all such costs and allowances to be paid out of the fund. Settlement may be had upon the usual notice. Judgment accordingly.

(64 App. Div. 346.)

In re BURDSALL et al.

(Supreme Court, Appellate Division, Second Department. October 4, 1901.) 1. WILLS-CONSTRUCTION-CHARGES AGAINST DEVISEES.

Testator directed that whatever was found charged on his books against either of his children was to be deducted from their shares. On his books was an account against his daughter, showing no balance against her; but a prior account in her maiden name showed a balance against her. Nearly the full amount of such balance was caused by the purchase of a house, which he gave to his daughter as a wedding present. Directly beneath the account showing such balance red lines were drawn, and a new account with the daughter in her married name was opened. Held, that the balance against such daughter in her maiden name was not a charge to be deducted from the share given to her and her children.

2. SAME.

Where testator directs that any charges on his books against devisees are to be deducted from their shares, and on such books are charges for stock at its par value, such value only, and not its actual value, must be deducted.

Appeal from surrogate's court, Westchester county.

Proceedings in the matter of the judicial settlement of the account of Ellwood Burdsall and another, as executors of the will of Ellwood Burdsall, deceased. From a decree the executors, individually and as executors, and Elizabeth W. Griffen and another, minors, by their guardian, J. Mayhew Wainwright, appeal. Affirmed.

Argued before GOODRICH, P. J., and WOODWARD, HIRSCHBERG, JENKS, and SEWELL, JJ.

Isaac N. Mills, for appellants Burdsall.

J. Mayhew Wainwright, for minor appellants.
Arthur C. Palmer, for respondent Anna B. Griffen.

and 106 New York State Reporter

HIRSCHBERG, J. We consider it necessary to determine only the questions which have been presented on the argument and in the briefs. Of these the serious question is whether the trust share is to be reduced because of charges made by the testator upon his books against the life tenant.,

The estate of the testator exceeds a half million dollars. By his will, dated June 22, 1889, he bequeaths to his wife his household furniture, etc., and also gives to her absolutely the one-third part of all the remainder of his estate. He directs that the residue of his estate shall be divided into three equal parts. One of these parts he gives to each of his two sons. The remaining one-third of such residuary estate he gives, to quote the language of the will, "to my executors hereinafter named, and to the survivor or survivors of them, in trust, nevertheless, to receive the rents, issues, and profits of the real estate, if any, and to sell and convey the same, or any part thereof, on such terms as they may think proper; to purchase other real estate, to be held subject to this trust, with the proceeds of such sale or sales, or with other trust funds; to invest the personal property of said one-third, if not invested, and to hold the same at their discretion; and to pay the interest and income thereof, and the rents, issues, and profits of the real estate, if any, to my daughter, Anna B. Griffen, so long as she may live, and upon her decease to pay the said one-third part to her children, in equal parts, as they shall severally attain the age of 21 years; and, until each child shall attain the age of 21 years, such child shall be paid its share or proportion of said interest or income of the said one-third of my estate given in trust as aforesaid." The sixth clause of the will, which creates the controversy, is as follows:

"I order and direct that whatever shall be found charged on my books against either of my children shall be deducted (but that no interest be charged thereon) from their shares, respectively."

The testator died December 28, 1889, leaving, him surviving, his widow, his two sons, his daughter, and her two minor children. On his books is an account under the name of each of his sons, and in each account is charged the sum of $14,150, representing stock and other property received by each from his father during the latter's lifetime. There is also an account under the name of the daughter, Anna B. Griffen, showing no balance charged against her, and also a prior account under her maiden name, Anna C. Burdsall, upon which it is claimed a balance does stand charged against her, amounting to $21,000, and consisting of two items,-one of $20,000 for a house in the city of New York, and the other of $1,000 for ten shares of stock. The learned surrogate has found, in substance and effect, that this account does not contain a charge against Mrs. Griffen, within the meaning of the sixth clause of the will, and we approve of that finding.

The stock was purchased by the testator, but the certificate was taken in his daughter's name. It remained in the possession of the testator until his death, but the executors (the two sons) have since voluntarily delivered it to their sister. No question is seriously raised as to the title to this stock, and whether it represents a charge

« AnteriorContinuar »