pletely at the New Jersey bulkhead, and there is absolutely no evidence to account for the failure to unload or to account for the listing of the boat, except the fact that it happened; but, even if the unloading was not part of plaintiff's contract, but a mere voluntary act on its part, we are convinced that the evidence is short of showing complete performance of the contract, for it was the duty of the plaintiff at least to transport the merchandise in question to the bulkhead in New Jersey in such a way as to give the defendant a reasonable opportunity, after the notice of arrival, to unload it. The record is absolutely silent as to whether the defendant, by any act of negligence, or any act of commission or omission, on its part, prevented plaintiff from giving it that reasonable opportunity. From the evidence upon which the jury were asked to render a verdict they were forced to speculate, because of the lack of evidence, as to why the plaintiff was prevented, if it was prevented, from carrying out its contract. Did the boat list because it was unseaworthy, and, if so, was that unseaworthiness due to any negligence on the part of the plaintiff; or did the boat list because defendant failed to give plaintiff a safe place to dock its lighter? Plaintiff's employés were in control of the boat, yet none of them were called to account for the accident that occurred at the bulkhead. We conclude, therefore, that there was insufficient evidence upon which to base a finding that the plaintiff had completely performed its contract. The judgment is therefore reversed, and a new trial ordered, with $30 costs to appellant to abide the event. All concur. CARPENTER et al. v. SPARTA SAVINGS BANK et al. (Supreme Court, Appellate Term, First Department. May 1, 1920.) Banks and banking 1881⁄2-Bank's telegram that it is remitting money does not raise contract. That defendant bank, on being directed by C. to remit $3,000 to plaintiffs, telegraphed plaintiffs that it was remitting such sum for C.'s credit, raised no contract, so as to make it liable for not remitting, on countermand of the order by C. Appeal from City Court of New York, Special Term. Action by Joseph N. Carpenter and others, partners as N. L. Carpener & Co., against the Sparta Savings Bank, impleaded with another. From an order denying the motion of the named defendant to vacate an attachment, on the ground that no cause of action was alleged against it, said defendant appeals. Reversed, and motion granted. Argued May term, 1920, before BIJUR, MULLAN, and WAGNER, JJ. Marion B. Pierce, of New York City, for appellant. Sidney R. Perry, of New York City (Frank S. Moore, of New York City, of counsel), for respondents. PER CURIAM. The only question involved is whether defendant appellant, having been directed by one Culver, a customer of plain For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (182 N.Y.S.) tiffs, to remit money for him to the plaintiffs, and having thereupon telegraphed to plaintiffs, "Am remitting three thousand dollars for credit E. B. Culver," is liable for breach of contract when, the order having been countermanded by Culver, the money was actually not sent by appellant. We are unable to see how any contract can be spelled out of the incidents just related, nor does respondent explain what the contract was, or how any contractual relations arose. Order reversed, with $10 costs and disbursements, and motion. granted, with $10 costs. (191 App. Div. 717) BELMONT v. CITY OF NEW YORK. (Supreme Court, Appellate Division, Second Department. May 7, 1920.) 1. Limitation of actions 180 (7)-Nonsuit proper, where pleading shows action barred. Where pleading does not state a cause of action, because barred by limitations, nonsuit may be rendered at the outset of the trial. 2. Pleading 34 (3)—Rule as to liberal construction applicable only to matters of form. The liberal construction of pleadings sanctioned by Code of Civil Procedure extends but to matters of form, not to the fundamental requisites of a cause of action. 3. Pleading 7-Essential fact is not alleged, when only inferable. The fact essential to a cause of action is not alleged, when it is only to be inferred from other facts, specifically averred, which are not inconsistent with the opposite fact. 4. Limitation of actions 183 (4)-Municipal corporations 816 (1) -Complaint held to state cause of action for negligence, and not nuisance, within rule as to pleading limitations; "wrongful;" "negligent." Complaint alleging that defendant city "maintained" manhole in a "wrongful, careless and negligent manner," so as "to constitute an obstruction," and "to render" the highway "dangerous," and that plaintiffs sustained injuries through the careless and negligent manner in which defendants "maintained" such manhole, held to state a cause of action for negligence, as against contention that cause of action was for a nuisance, and that pleading of limitations pertinent to an action for negligence was not applicable, notwithstanding complaint characterized the "manhole" as a "nuisance," and alleged that defendant was "wrongful," since the term "wrongful" may be regarded as a synonym for "negligent." [Ed. Note. For other definitions. see Words and Phrases, First and Second Series, Negligent; Wrongful.] 5. Limitation of actions 183 (2)—Pleading of limitations in action against city held sufficient. In an action for negligence, a pleading that the action was not commenced within one year after the cause of action had accrued, as required by Greater New York Charter. § 261, "and that said cause of action accrued more than one year prior to commencement of this action," held to warrant nonsuit on ground of limitations, though Laws 1886, c. 572, should have been pleaded; the quoted words being a substantial objection that the action was belated, and under Code Civ. Proc. § 413, the error of nomenclature not being fatal. Appeal from Trial Term, Queens County. Action by Albert Belmont against the City of New York. Judgment of dismissal, and plaintiff appeals. Affirmed. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Argued before JENKS, P. J., and MILLS, RICH, BLACKMAR, and JAYCOX, JJ. Judson D. Campbell, of New York City, for appellant. Henry J. Shields, of New York City (William P. Burr, Corp. Counsel, and John F. O'Brien, both of New York City, on the brief), for respondent. JENKS, P. J. [1] The appeal is from a judgment of nonsuit at the outset of the trial. The practice was proper (Kelly v. Security Mutual Life Ins. Co., 186 N. Y. 16, 78 N. E. 584, 9 Ann. Cas. 661), and if the complaint was for negligence and limitation was well pleaded the judgment was right. But the appellant contends that, as the complaint was for nuisance, the statute of limitations invoked by the defendant, even if well pleaded, did not apply, and also, if the complaint was for negligence, there was no proper plea of the statute. While the distinction between negligence and nuisance "is narrow in basis and operation" (Herman v. City of Buffalo, 214 N. Y. at page 321, 108 N. E. 451), the authorities recognize an essential distinction, stated by Miller, J., for the court, in McCluskey v. Wile, 144 App. Div. at page 473, 129 N. Y. Supp. at page 457: "Nuisance involves the element of positive wrongdoing as distinct from mere acts of carelessness, whether of omission or commission." See, too, Herman v. City of Buffalo, supra; De Moll v. City of New York, 163 App. Div. 676, 148 N. Y. Supp. 966. I think that this principle is the touchstone of the plaintiff's pleading in the case at bar. The complaint is against a sewer entrance or manhole in a city street. Normally this is a proper structure in such place, and there is no allegation to the contrary. The charge of shortcoming is that defendant "maintained" such structure in a "wrongful, careless, and negligent manner," and in such a position as "to constitute an obstruction," and "to render" the highway "dangerous," and that the damages and injuries were caused through the careless and negligent manner in which the defendants "maintained" the said manhole. As I read the complaint, the gravamen of the shortcomings of the defendant is not wrongdoing, but neglect. It is true that the plaintiff calls the structure a "nuisance," and alleges that the defendant was wrongful and careless and negligent (italics mine); but characterization is not pleading, and "wrongful," thus used, may be regarded as a synonym for "negligent." Wells v. Sibley, 9 N. Y. Supp. 343.1 [2, 3] The liberal construction of pleadings sanctioned by the Code of Civil Procedure extends but to matters of form, not "to the fundamental requisites of a cause of action." Clark v. Dillon, 97 N. Y. at page 373. "A fact essential to a cause of action is not alleged when it is only to be inferred from other facts specifically averred which are not inconsistent with the opposite fact. Clark v. Dillon, 97 N. Y. 1Reported in full in the New York Supplement; reported as a memorandum decision without opinion in 56 Hun, 644. (182 N.Y.S.) 370." Jacobs v. Monaton R. I. Corp., 212 N. Y. at page 56, 105 N. E. at page 971. [4] It may be that the plaintiff, who was but nonsuited, has a cause of action for nuisance; but my conclusion is that he did not plead it, so as to escape the statute of limitations pertinent to an action for negligence. Capone v. City of New York, 182 App. Div. 931, 169 N. Y. Supp. 1087, appeal dismissed 127 N. E. 910. [5] The defendant pleaded: "IV. That this action was not commenced, as required by the provisions of section 261 of the Greater New York Charter [Laws 1901, c. 466], within one year after said cause of action had accrued, and that said cause of action accrued more than one year prior to the commencement of this action." The defendant pleaded the wrong statute, instead of chapter 572 of the Laws of 1886. But the latter statute contains the same limitation, and it appears that the substantial objection that the action was belated (see section 413, Code Civ. Proc.) was taken by the plea: "And that said cause of action accrued more than one year prior to the commencement of this action." I think that the error of nomenclature was not fatal. Van Hook v. Whitlock, 7 Paige, 373, affirmed 26 Wend. 43, 37 Am. Dec. 246. As was said in Camp v. Smith, 136 N. Y. 203, 32 N. E. 645: "The allegation was ample to give the plaintiff notice of the precise defense relied upon." The judgment is affirmed, but without costs. All concur. BELMONT v. CITY OF NEW YORK. (Supreme Court, Appellate Division, Second Department. May 7, 1920.) Appeal from Trial Term, Queens County. Action by Emma Belmont against the City of New York. From the judgment rendered, plaintiff appeals. Affirmed. Argued before JENKS, P. J., and MILLS, RICH, BLACKMAR, and JAYCOX, JJ. PER CURIAM. Judgment unanimously affirmed, without costs, on authority of Albert Belmont v. City of New York, 191 App. Div. 717, 182 N. Y. Supp. 173, decided herewith. (111 Misc. Rep. 624) H. F. BINDSEIL & SON, Inc., v. AARON LITTMAN & CO., Inc. 1. Contracts 323 (1)-Whether dyers properly performed work held for jury. In an action for services rendered in dyeing furs, defended on ground that work was improperly done, question of whether plaintiff had properly performed the work held a question for the jury. 2. Evidence 129 (6)—That other skins than those complained of dressed at same time were satisfactory held admissible. In dyer's action against fur manufacturer for compensation for dyeing furs and skins, where dyer claimed as against fur manufacturer's defense that work had been improperly done, that the spoiled condition of the furs was due to the dressing process of the skins before delivery to dyer, testimony that other skins belonging to same lot and dressed by the same dresser, at the same time and in the same chemical liquid, had been sent to other dyers and had resulted in proper dyeing without injury to the leather held admissible. Appeal from Municipal Court, Borough of Manhattan, Third District. Action by H. F. Bindseil & Son, Incorporated, against Aaron Littman & Co., Incorporated. Judgment for plaintiff on verdict, and defendant appeals. Reversed, and new trial ordered. Argued April term, 1920, before GUY, FINCH, and WAGNER, JJ. Rosenthal & Heermance, of New York City (S. Michael Cohen, of New York City, of counsel), for appellant. Henry H. Silver, of New York City, for respondent. WAGNER, J. On March 18, 1919, the defendant, a fur manufacturer, delivered to the plaintiff, which was engaged in the business of dyeing furs and skins, 50 dressed red fox skins for the purpose of dyeing them. Upon their delivery back to defendant after dyeing, and the discovery that they had been damaged, the defendant resisted plaintiff's suit, brought to recover for services rendered. Its claim is that, although the hair of the skins had been properly changed to the color agreed up in the process of dyeing, the plaintiff had so spoiled the hide or leather as to render them useless and of no value. It is not disputed by the plaintiff that the skins when returned were in a bad condition, but it is insisted that such condition was due to the dressing process of the skins by another which preceded the dyeing process performed by it. [1, 2] Its contention was that it had properly performed its engagement for dyeing, but that the hardness and brittleness which developed in the leather skins was by reason of an excessive use of acid in the previous dressing, which would not manifest itself in result until subjected to heat in the dyeing process, when it would become intensified and burn the leather. The determinative issue of the case, whether or not the plaintiff had properly performed the services for which it demanded compensation, was sharply contested, and presented a clear question of fact for the jury, with whose judgment we For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |