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Second Department, March, 1910.

[Vol. 137.

PATRICK H. MORRISON, Appellant, v. AMELIA BRENMOHL and Jul.

WM. BRENMOHL, Respondents, Impleaded with ELIZABETH C. SEAMAN.

Second Department, March 31, 1910.

Real property – specific performance - indefiniteness of description

parol evidence.

A suit for the specific performance of a written contract to sell lands should not

be dismissed upon the ground that the description of the lands is indefinite where they are stated to be a “place at Moriches, on the north side of old

County Road, being about twenty-five acres, including buildings." The court will construe the words as referring to realty owned by the vendor at the time of the contract, and parol evidence is admissible to identify the

specific realty. Neither should such suit be dismissed because a provision requiring the vendor to

accept a purchase-money mortgage does not state the term of the mortgage, for, it seems, parol evidence is admissible to show the duration of the term, and in any event a mortgage need not state the time of payment, in which case the debt is payable on demand.

APPEAL by the plaintiff, Patrick H. Morrison, from a judgment of the Supreme Court in favor of the defendants, Amelia Brenmolil and another, entered in the office of the clerk of the county of Suffolk on the 3d day of May, 1909, upon the decision of the court, rendered after a trial at the Suffolk Special Term, dismissing the complaint upon the merits as to said defendants.

William McArthur [August Dreyer with him on the brief], for the appellant.

John R. Vunk, for the respondents.

JENKS, J.:

This action is by a purchaser of lands for a specific performance, who appeals from a judgment of the Special Term for his dismissal on the merits as to the sellers. The judgment was entered upon motion of the defendants at the opening of the case and decided upon the sole ground that the description in the memorandum was insufficient. The memorandum was as follows:

App. Div.]

Second Department, March, 1910.

“ MORICHES, March 17th, 1906. “ Received from P. H. Morrison the sum of One hundred dollars, as deposit on sale of place at Moriches, on the north side of Old Connty Road, being about twenty-five acres, including buildings. The purchase price is Fifteen hundred dollars, to be paid as follows: One hundred dollars on signing this agreement, receipt of which is hereby acknowledged. Ten hundred dollars to be paid on delivery of deed on October 1st, 1906. Balance Four hundred dollars to remain on bond and mortgage at five per cent.

“AMELIA BRENMOHL.
“JUL. WM. BRENMOHL.”

We may construe the words used as relating to realty owned by the subscribers at the time of their subscription. (Ilurley v. Brown, 98 Mass. 545, cited in Miller v. Tuck, 95 App. Div. 137; Scanlan v. Geddes, 112 Mass. 15.) I think that parol evidence was admissible to enable the court to identify the specific realty covered by this memorandum. For the plaintiff might have shown that the said defendants owned only one place in or at Moriches, on the north side of the old county road of about 25 acres, with buildings thereon. In Head v. Parker (115 Mass. 415) the court say: “It is not a question of the sufficiency of the writing under the Statute of Frauds, so much as it is of the right to resort to parol evidence in aid of the writing, where an ambiguity exists in respect to the property intended to be sold, or to which the contract relates. The most specific and precise description of the property intended requires some parol proof to complete its identification. A more general description requires more. When all the circumstances of possession, ownership, situation of the parties, and of their relation to each other and to the property, as they were when the negotiations took place and the writing was made, are disclosed, if the meaning and application of the writing, read in the light of those circumstances, are certain and plain, the parties will be bound by it as a sufficient written contract or inemorandum of their agreement. That parol evidence is competent to furnish these ineans of interpreting and applying written agreements is settled by the uniform current of authorities. (Baker v. llathaway, 5 Allen, 103; Farwell v. Mather, 10 Allen, 322; Putnam v. Second Department, March, 1910.

[Vol. 137. Bond, 100 Mass. 58; Stoops v. Smith, 100 Mass. 63, and cases there cited; 1 Greenl. Ev. SS 286, 288.)” The rule as to the admission of parol evidence that must obtain in this case is most elaborately discussed by BARTLETT, J., writing for the court, in Miller v. Tuck (supra). (See, too, Levin v. Dietz, 106 App. Div. 208; Daniels v. Rogers, 108 id. 338; Wood Stat. Frauds, 353; Scanlan v. Geddes, supra; Phillips v. Hooker, 1 Phil. Eq. [N. C.] 193; Owen v. Thomas, 3 M. & K. 353; McMurray v. Spicer, L. R. 5 Eq. 527; Pom. Spec. Perf. S 90, p. 129, note 2.) In Daniels v. Rogers (supra) the description was “the property known as the Star and Crescent Furnace, in Cherokee County, near Rusk, Texas.” In Mead v. Parker (supra) the description was “a house on Church Street." In Phillips v. Ilooker (supra) “her house and lot north of Kinston.” In Owen v. Thomas (supra) “the house in Newport.” In McMurray v. Spicer (supra) “ the mill property, including cottages in Esher village.” A reading of the memorandum shows that the price is definitely stated, with the exception that the time of payment of the mortgage, a part only of the consideration, is not defined. I am inclined to the opinion that parol evidence would be adınissible to show the period of the proposed mortgage. (See Pom. Spec. Perf. § 93.) But in any event a mortgage may be made without specification of the time of payment, whereupon the debt is payable on demand. (Jones Mort. $ 75.)

The judgment is reversed and a new trial is granted, costs to abide the final award of costs.

Burr, Thomas, Rich and Carr, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the final award of costs.

App. Div.]

Second Department, March, 1910.

John H. May, as Administrator, etc., of CHARLES Nelson May, Deceased, Respondent, v. The New York CENTRAL AND HUDSON River RAILROAD COMPANY, Appellant.

Second Department, March 11, 1910.

Railroad – negligence – collision at grade crossing - contributory

negligence.

Action to recover for the death of one who was killed by a train while driving a

vehicle across a railroad track. Although on approaching the track the view was obstructed at various places, there were intervals where an approaching train could have been seen. There was testimony that the driver looked for a train at one of these places, and it appeared on all the evidence that he did discover the train but attempted to cross in front of it. Held, that a judgment

for the plaintiff should be reversed. The fact that the gates guarding the crossing were up did not excuse lack of care

in crossing the track. HIRSCHBERG, P. J , dissented.

REARGUMENT of an appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 21st day of April, 1909, upon the verdict of a jury for $10,000, and also from an order entered in said clerk's office on the 13th day of May, 1909, denying the defendant's motion for a new trial made upon the minutes.

John F. Brennan, for the appellant.

Albert A. Wray [Stephen Callaghan and Edward Frank Glover with hiin on the brief], for the respondent.

TAMAS, J.:

The plaintiff's intestate, eighteen years old and experienced, was driving a wagonette westward across defendant's tracks at twelvethirty-seven o'clock A. M. on February twenty-third, when the wagon aft of the whiffletrees was struck by a south-bound train, the horses with harness released escaped uninjured, the driver and two persons sitting with him, and two of the three persons on each of the side seats in rear of the driver were killed, while two persons who were sitting, one, Palmer, in the last seat on the south side, and one, Miss

Second Department, March, 1910.

[Vol. 137. Bird, who was sitting in the last seat on the north side, escaped alive, but injured. The same accident was before this court in Singer v. N. Y. C. & II R. R. R. Co. (132 App. Div. 890) wliich related to the death of one of the passengers. In that case the question of defendant's negligence must have been similar to that now presented, and need not be discussed, although in the present instance it was properly submitted to the jury. But the question of the driver's negligence is presented at this time, and differs from that arising in the case of the passenger. The care required of the driver is not lessened by the fact of his death, but on account of the absence of his evidence the jury is permitted to use presumptions and inferences and to permit evidence adduced to liave probative force, whereon a verdict may be found for the plaintiff and sustained. There is evidence that for soine distance before reaching the easterly rail of the north-bound track there were intermitting obstructions. The available seeing spaces varied in the length of view permitted. The driver, when he was at considerable distances from the track, could, had he made fortunate selection of places therefor or had he looked with continued search, have seen the train, and he could have followed it appearing and disappearing, but always approaching. But he might have looked somewliat frequently without discovering it on account of the varieties of obstruction. The evidence of the survivor Palmer is: “Ile bent forward this way, and turned his head this way, looking up and down the track. The horses kept going just the same, so far as I know, I don't remember any change in the gait. There was no change in the speed of the horses, they were going just the same, with the driver with his head out and looking up and down the track. At that time I was about hitting the first rail, that it is the rail of the up track, I don't know. The first rail I hit, that is the first rail of the up track. Up to that time the driver had not, so far as I could observe, either looked or listened for the approach of a train before we went on the crossing. He looked at that time, that is all. He looked that once. He didn't whip his horses up.” When the driver looked at that point the train was right before his face. If there was not evidence of his looking at a place where to look was to see the train, an argument in vindication of his care might be attempted on account of the obstructions that attended his earlier

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