페이지 이미지
PDF
ePub

(182 N.Y.S.) upon the second cause of action. Defendant's counsel called the attention of the court to the fact that the complaint demanded judgment for the sum of $4,260 only upon the first cause of action, and that there had been no amendment of the pleadings. The customary motion for a new trial was made. The court reserved decision on the motion, as well as on a motion to dismiss the complaint. In denying the motion the court said:

"They [the jury) accordingly found for the plaintiffs in the sum of $5,325 on the first cause of action and for $2,000 on the second. They thus found in two separate amounts without direction from the court, and it seems to me that the verdict must be treated in all respects as if they had found for the single sum of $7,325 on both causes of action, as they were at liberty to have found. To consider the separate amounts apportioned to either cause of action without regard to the other would be taking liberties with the verdict whicu might subvert the intent of the jury and transform a just finding into an injustice. For who can doubt that they, in fixing the amount on each cause of action, had in mind the sum apportioned to the other. True, they have awarded as commissions on the first count a sum in excess of what the terms of the contract justified, but almost every bit of evidence tending to prove that cause of action relateu to the second cause of action also, as showing profits lost through the breach of the defendant. If, for example, they had disallowed the commissions claimed on certain machines under the first count, because the actual sales were not proved to have been consummated before November 1, 1916, they were warranted in adding a like amount to the damages found on the second cause, for it might properly be considered as an item of loss on that count, since, if the plaintiffs had been permitted to enjoy all the benefits of their contract, and so to continue their business under it, those sales would most probably have been consummated, and the commissions realized, by the plaintiffs. The trial of this case consumed several days, and ample opportunity was given counsel to try it fully in their own way. Had the verdict been in the single sum of $7,325, as it should have been, there would hardly be a question raised as to its reasonableness. The defendant has had a fair trial, and I do not think any injustice has been suffered by it, so far as the amount of the verdict is concerned."

[1] I am of the opinion that the testimony warrants a finding in favor of plaintiffs to the extent of $4,260 only, being the amount for which they asked judgment by their complaint. This includes commissions earned on sales to (a) Brooks Bros.; (b) Cadillac Motor Company; (c) Douglas Fenwich Company; (d) Hill Publishing Company; (e) David Williams Company; (f) Certified Service; (g) Thomas A. Edison; (h) American Humane Society--and aggregating $14,200. It excludes the alleged sales of machines to Paul Hooven for use in plaintiffs' territory, the testimony as to which would be insufficient in any event to warrant a recovery thereof by plaintiffs. But in no event could plaintiffs recover on their first cause of action more than the amount stated to be due them from defendant, and for which they asked judgment, viz. $4,260. The jury specifically found the amount which they awarded to plaintiffs upon this first cause of action, viz. $5,325. Their verdict was not a general one, which would have left uncertain the exact apportionment of the recovery between the two causes of action.

[2] Having definitely fixed the sum which they awarded as damages under the first cause of action, the trial court was without power to make their verdict a general one, and by adding together the two sums awarded to reach a total which it deemed justified by the evidence as to both causes of action. The court would thus be substituting its judgment for that of the jury upon the facts and making a new verdict for them. The plaintiffs, under the pleadings, could not recover upon the first cause of action more than $4,260, and the verdict thereon must be reduced to that amount.

We find no error in the recovery upon the second cause of action to the extent to which the jury awarded damages, viz. $2,000.

The judgment appealed from will therefore be modified, by reducing the verdict upon the first cause of action from the sum of $5,325 to $4,260, the recovery upon the second cause of action in the sum of $2,000 will be affirmed, and, as so modified, the judgment and the order are affirmed, without costs. All concur.

HESSBERG V. MARZULLO et al. (Supreme Court, Appellate Term, First Department. June 9, 1920.) Landlord and tenant Cwm 80 (3)–Renewal subject to lettings held not to contin

ue subleases longer than term of renewal.

Where the original tenancy had terminated by a conditional limitation, so that the underleases had also terminated, a new lease to the original tenant for two months “subject to leases and lettings now in force" did not constitute an adoption by the landlord of the undertenants as her tenants, so as to prevent her from recovering possession from the undertenants at the expiration of the two-months lease.

Appeal from Municipal Court, Borough of Manhattan, Third Circuit.

Summary proceedings by Lena Hessberg, landlord, against Pasquale Marzullo, tenant, and Morris Shindler and others, undertenants. From that part of the final order dismissing the petition as against the undertenants after trial by the court without a jury, the landlord appeals. Modified, by awarding premises to the landlord against the undertenants, as well as against the tenants.

Argued May term, 1920, before BIJUR, MULLAN, and WAGNER, JJ.

Wolf & Kohn, of New York City (Sol. Kohn, of New York City, of counsel), for appellant.

Benjamin Koenigsberg, of New York City, for respondents.

MULLAN, J. The petitioner's lease to Marzullo contained a covenant providing for the sooner expiration of the term, by conditional limitation, in case the landlord should effect a sale of the demised premises. All the provisions for the working of the conditional limitation were scrupulously observed, and the lease in consequence expired on December 1, 1919. Shortly prior to that date, and to serve no ulterior purpose, the landlord leased the premises to Marzullo for the period of two months, commencing on December 1, 1919. Marzullo refusing to vacate at the end of the term of the second lease,

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(182 N.Y.S.) this proceeding was instituted to procure the dispossession of Marzullo and Marzullo's lessees.

The undertenants concede the rule that underleases fall when the lease that supports them falls, but they urge that the doctrine of Eten v. Luyster, 60 N. Y. 252, applies, basing this contention upon the fact that the second lease to Marzullo, whose term began on December 1st, contained a provision to the effect that the demise was made "subject to leases and lettings now in force." Their argument, which succeeded below, is that the provision referred to should be construed as such a recognition by the landlord of the sublessees as to constitute an adoption by her of the undertenants as her tenants. We think it is very clear that the provision in question gave no rights to the undertenants that they did not have before, and it certainly did not bind the undertenants. In the Eten Case, supra, and in Ashton Holding Co. v. Levitt, 191 App. Div. 91, 180 N. Y. Supp. 700, the landlord's tenant surrendered, and it was held that the rights of the undertenants during the term held by the original lessee could not be thus cut off. There is no such question here. The term of the original lease to Marzullo expired by force of a provision in the lease itself that bound Marzullo and necessarily bound any one in possession under Marzullo.

Final order modified, by awarding possession of the premises to the landlord as against the undertenants, as well as against the tenant Marzullo, and, as modified, affirmed, with $25 costs to landlord of this appeal. All concur.

LAMBERT v. F. WM. GERTZEN CO. (Supreme Court, Appellate Term, First Department. June 9, 1920.) Insurance 104-Forwarding agent held not required by contract to insure

against war risks.

Where plaintiff's version of the shipping agreement was that defendant, as forwarding agent, was to do all customary things to insure the shipper's reasonable protection, and defendant, as a qualified expert, testified without contradiction that after the Armistice shipping agents ceased to insure against war risks, a judgment for plaintiff for damages caused by defendant's failure to insure against war risks must be set aside, and complaint dismissed.

[ocr errors]

Appeal from Municipal Court, Borough of Manhattan, Seventh District.

Action by Johanna Lambert against the F. Wm. Gertzen Company. Judgment for plaintiff, and defendant appeals. Reversed, and complaint dismissed on the merits.

Argued May term, 1920, before BIJUR, MULLAN, and WAGNER, JJ.

James A. Nolan, Jr., of New York City, for appellant.

Lawrence H. Sanders, of New York City (Stanley M. Lazarus, of New York City, of counsel), for respondent.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

MULLAN, J. The plaintiff, desiring to send a package of goods to a person in Germany, delivered it, in November, 1919, to the defendant, a forwarding agent, for shipment. The latter shipped the package on the steamer Kerwood, which, at some time prior to December 8, 1919, was sunk near the Netherlands coast by coming into contact with a floating mine. The defendant had caused the plaintiff to be insured against ordinary marine hazards. The action is brought upon the theory that the defendant should have had the shipment covered against war risks.

It seemes to be in effect conceded, for the purpose of this appeal, that the policyobtained by the defendant did not cover against loss because of floating mines, whether or not that is properly to be deemed a war risk. The most that can be said of plaintiff's version of the shipping agreement was that defendant was to do all customary things in connection with the shipment to insure the shipper's reasonable protection. The defendant, clearly a qualified expert, testified that after the Armistice shipping agents ceased to insure against war risks, and there was no attempt to rebut or impugn his testimony, which is convincing on its face. It follows, we think, that the defendant did all that he was required to do.

Judgment reversed, with $30 costs, and complaint dismissed on the merits, with costs. All concur.

(192 App. Div. 353)

FREDERICK ZITTEL & SONS v. SCHWARTZ.

(Supreme Court, Appellate Division, First Department. June 4, 1920.)

1. Contracts Om 143--Construed as a whole.

In construing a contract, the whole thereof must be read together. 2. Corporations 117—Completion of building to be leased to corporation

by certain date held not of essence of contract for sale of stock.

Where contract for sale of stock of newly organized corporation, to which seller agreed to lease building being constructed, provided that substantial completion of building on or before certain date was of the essence of the agreement, but in subsequent provisions provided for corporation's entry into possession and reduction in rent, if only partially completed on such date, and for cancellation of contract at buyer's option, notice of which was to be sent by registered mail, if not completed on specified subsequent date, buyer was not entitled to cancel contract for failure to have building substantially completed on the prior date, or at any

time prior to the subsequent date. 3. Brokers C60_Seller held not entitled to defeat broker's right to commis

sions by consenting to cancellation of contract.

Where contract for sale of stock gave buyer the option to cancel contract, if building to be leased to corporation by seller of stock was not completed on certain date, seller was not released from liability to broker, who negotiated sale, for commission due on buyer's payment of price un completion of building, by consenting to cancellation of contract prior to such date, in absence of proof that building could not have been completed on such date.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indeses

(182 N.Y.S.) Appeal from Appellate Term, First Department.

Action by Frederick Zittel & Sons against Louis K. Schwartz. From a determination of the Appellate Term, affirming a judgment of the City Court for plaintiff, and from an order denying motion to set aside the verdict and for a new trial, defendant appeals. Affirmed.

See, also, 173 N. Y. Supp. 383.

Argued before CLARKE, P. J., and LAUGHLIN, SMITH, PAGE, and MERRELL, JJ.

J. Robert Rubin, of New York City (Samuel J. Rosensohn and Milton Frank, both of New York City, on the brief), for appellant.

Hugo S. Mack, of New York City (William Kaufman, of New York City, of counsel), for respondent.

SMITH, J. This is an action for commissions upon the sale of the stock of a corporation, which involved the transfer of a lease of substantial value. The case has been twice tried. Upon the original trial the complaint was dismissed, and judgment was directed for defendant upon the counterclaim. This was reversed by the Appellate Term. 173 N. Y. Supp. 383. Upon the second trial, the jury found for the plaintiff, both upon his cause of action and upon the defendant's counterclaim. This was affirmed by the Appellate Term, and from that affirmance this appeal is taken.

The defendant Schwartz apparently was the owner of the lease upon premises known as 219-223 West Seventy-Second street in the borough of Manhattan. He had just organized a corporation known as the Wellsmore Garage, Incorporated. He had assigned, or was about to åssign, to this corporation this lease. He owned all the stock of the corporation. He desired to sell the stock of this corporation, which would carry the right of this lease, and the plaintiff was employed for that purpose. The terms that he first named were $30,000 as a first payment, and $16,500 per year as rent. The plaintiff, acting through one Allen as his agent, negotiated with the National Garage Company for this transfer; but the National Garage Company was unwilling to pay the amount named. He succeeded in bringing the parties together upon the 12th day of October, 1917. Negotiations were had between them, and terms were thereafter agreed upon and the formal contract signed upon the 18th day of October. Prior to that time Schwartz had a further talk with Allen, representing this plaintiff, by which it was agreed that the plaintiff should receive the $3,000, as and when Schwartz received his payments of the $25,000 from the National Garage Association as provided by the agreement. The National Garage Association made a payment of $7,500, and the plaintiff was paid $900. Thereafter, and upon April 9, 1918, by agreement between the National Garage Association and the defendant, the contract was canceled, and the defendant made the transfer to another vendee, which was accomplished through another broker, who received his commission therefor. The plaintiff demanded its full commissions from the defendant, which

« 이전계속 »