Appeal from Municipal Court of New York. Action by Karl Deutsch against Fannie Cirker. From a judgment for plaintiff, defendant appeals. Reversed and remanded. Argued March term, 1915, before LEHMAN, HENDRICK, and COHALAN, JJ. Abraham B. Keve, of New York City, for appellant. HENDRICK, J. The amended complaint alleged that on September 11, 1913, defendant agreed, if plaintiff's assignor would lease her house, that she— "would make and complete all the repairs inside and outside of said premises at her expense before the commencement of the term of the lease; that the furniture then in said premises would remain therein during the entire term; and also the defendant further agreed to place upon the premises certain additional furniture necessary for the complete enjoyment of the premises before the commencement of the term." The additional allegations are that two days later plaintiff's assignor, in part consideration of said agreement, accepted a lease; that seventeen days later he entered into possession; that defendant did not repair nor furnish the house; and plaintiff, as assignee, demands judgment for $251.40. * * [1, 2] The written lease lets the house, "the same to be furnished as per inventory, * plumbing and otherwise to be in good condition, and to be kept so by the party of the second part at his own cost and expense." Lessee to "surrender the premises hereby demised in as good state and condition as reasonable use and wear thereof will permit." If the lessee covers the subject-matter of the alleged oral contract, there was but one agreement, and that was the written lease. The negotiations of two days before are merged. It does relate to furniture, and it covers the subject of repairs; but on both subjects the lease is indefinite. It refers to an inventory; but I find none in the return. Nor do I find that any witness undertook to state the contents of the inventory, nor otherwise to describe the furniture referred to. If the lessee or his assignee was damaged by breach of the lease, I think he has failed to place before the trial court a basis on which the damages could be assessed. [3] Plaintiff took a different view. He claimed that the house should have remained in the same condition, as to furniture, as when occupied by the previous tenant. He produced evidence of the value of furniture necessary to place it in that condition, and also the difference between the house so furnished and not furnished at all. Two witnesses testified to this difference; one estimated it between $50 and $100, and the other between $75 and $100 per year. The value of the additional necessary furniture was placed at $75. None of this evidence was strictly relevant. Perhaps the judgment for $75 was founded on the value of the furniture. If so, it is not quite apparent why a landlord should be compelled to pay the full value of furniture when the tenant is entitled to the use only and for a term of but three years. I cannot concur in the theory of the trial. If the tenant did not waive the alleged undertaking to furnish by moving in without the furniture, I think the lease embodied the entire contract, and that no damages were proved for its breach. Plaintiff's bill of particulars as to repairs specifies items paid by the assignor aggregating $26. I find no evidence to sustain any judgment for damages on account of breach of the written lease to deliver the house "in good condition," nor evidence of any facts which would render defendant liable for the sum mentioned. The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur. RUTH v. NEIHEISER. (Supreme Court, Appellate Term, First Department. May 5, 1915.) 1. BROKERS 64 CONTRACTS-WHAT CONSTITUTE. Defendant, who desired to sell a saloon business, engaged plaintiff to find a buyer. A prospective purchaser offered by plaintiff tendered a check of $25 as a deposit on the purchase price. On advice defendant refused to sign a contract for a sale of the property, which was valued at nearly $10,000, but did consent to sign a receipt for the deposit. Held, that the receipt did not constitute a contract obligating defendant to pay commissions, though the purchaser did not offer to consummate the transaction. [Ed. Note. For other cases, see Brokers, Cent. Dig. §§ 67, 97; Dec. Dig. 64.] In an action by a broker to recover commissions, evidence held insufficient to show that defendant, the seller, was guilty of any act which prevented consummation of the transaction. [Ed. Note. For other cases, see Brokers, Cent. Dig. §§ 116–120; Dec. Dig. 86.] Appeal from Municipal Court, Borough of Manhattan, Sixth District. Action by Henry W. Ruth against Katharina Neiheiser. From a judgment for plaintiff, defendant appeals. Reversed, and complaint dismissed. Argued March term, 1915, before LEHMAN, HENDRICK and COHALAN, JJ. Tausch & Hamilton, of New York City (J. Franklin Tausch, of New York City, of counsel), for appellant. David Kornblueh, of New York City, for respondent. LEHMAN, J. The plaintiff has recovered a judgment for the sum of $500, which he claims he earned as a broker by producing a purchaser for the defendant's saloon business ready, able, and willing to buy upon terms agreed upon. The plaintiff claims that this appeal presents merely a question of fact, but it seems to me that the undisputed evidence shows that the plaintiff has no cause of action and that the judgment is erroneous. [1] It appears from the testimony of the broker that the defendant first asked $10,000 for her business, but thereafter agreed to sell for For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes $7,500 and $1,200 additional for the license. She also stated that George Ehret's brewery would be willing to give a mortgage at any time. On September 30th the broker brought a customer who agreed to buy at this price. At that time the customer tendered a check of $25 as a deposit, and the defendant was asked to sign a contract; but she first consulted with a business adviser, and— "he told us that the first payment of $25 is not enough to sign an agreement for a $8,700 place." The broker then said to the defendant: "That she might perhaps sign a receipt for $25, and give her receipt, simply stating that was a deposit on the $8,700 purchase price of the saloon and liquor store and the lease, and we go together again to the brewery." A receipt was thereupon signed in the following form: "Received twenty-five ($25) dollars as deposit on sale of business, 318 Tenth street, including a ten-years lease and a certain liquor license for the above premises for eighty-seven hundred ($8,700) dollars." Thereafter an appointment was made between all the parties at the brewery to arrange for a loan and to consummate the proceedings. This testimony of the broker shows, in my opinion, clearly that no binding contract was intended to be made by the receipt. On the contrary, the defendant expressly refused to make a contract upon such a small payment, and received the amount only as a deposit for a future contract. [2] It follows that, if the purchaser thereafter withdrew from further negotiations, the broker has failed to make out his cause of action. Moreover, the purchaser who was produced by the plaintiff has himself testified expressly that he would not have been willing to use all his own cash for the place, and "would not buy the place without a loan." The sole question, therefore, is whether the subsequent failure to consummate the sale was due to any wrongful refusal of the defendant. It appears undisputed that on October 1st all the parties and the broker appeared at the brewery. The purchaser then asked for a loan of $6,000. George Ehret passed upon the application, and granted it, subject, however, to an examination of title. At that time there was some discussion as to the record title, which was partly vested in defendant's deceased husband; but defendant stated that under the will of her husband, not yet probated, she had a right to convey. The matter was then adjourned for one day, pending examination, and for final adjustment. On the next day the defendant and the broker appeared at the brewery, but the purchaser sent a telephone message that he was ill. The meeting was again adjourned, but the purchaser thereafter refused to proceed, and on the very day of the first meeting at the brewery stopped payment on the check. According to his testimony the reason for this was that he wished to take possession on October 1st, but the examiner of the brewery told him that the matter could not be closed that day, and if the will had to be probated it might take over a month. It appears, however, that if the purchaser had appeared on October 2d the purchaser could have been given possession, as the defendant and the brewery were apparently willing to allow that part of the purchase money covered by the $6,000 loan to remain in escrow till the will was probated. It seems to me that upon this evidence it clearly appears that the failure to consummate was not due to the defendant's fault. She apparently possessed all the instruments which would give her a perfect title, and could have perfected this title if given reasonable opportunity. No contract expressly fixing the time for passing of title had ever been agreed upon, and it does not appear that, if the purchaser had been willing, title could not have passed within a reasonable time. The broker had not completely performed his duties when he produced a purchaser making the deposit, for the contract was never consummated, and the failure was not due to the defendant's wrong. Judgment reversed, with costs, and complaint dismissed, with costs. All concur. ZEITLIN v. MORRISON et al. (No. 7035.) (Supreme Court, Appellate Division, First Department. April 9, 1915.) 1. MASTER AND SERVANT 106-INJURIES TO SERVANT-LIABILITY OF SERVANT. Where the master's landlord had charge of repairs to a door, the master is not liable for injuries caused by the negligence of the landlord's employés. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 193-198; Dec. Dig. 106.] 2. MASTER AND SERVANT 265-INJURIES TO SERVANT-PRESUMPTION. For a servant suing at common law to rely on the doctrine of res ipsa loquitur, he must present a higher degree of proof than is necessary in the case of a wayfarer or passenger, and the facts must exclude every inference except the master's negligence. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 877-908, 955; Dec. Dig. 265.] 3. ATTORNEY AND CLIENT 112-NEGLIGENCE-LIABILITY. An infant servant retained attorneys to sue for personal injuries, and they prepared the papers for the appointment of a guardian ad litem, delivering them to her brother. The petition was never signed or returned, although plaintiff and her brother understood that action could not be instituted until the appointment of a guardian. Held, that the attorneys were not liable for delay in starting suit. [Ed. Note.—For other cases, see Attorney and Client, Cent. Dig. §§ 224– 227; Dec. Dig. 112.] Ingraham, P. J., and Hotchkiss, J., dissenting. Appeal from Appellate Term, First Department. Action by Yetta Zeitlin against Isidore D. Morrison and J. R. Schiff, copartners doing business as Morrison & Schiff, for damages for negligent delay in instituting a personal injury action. From a judgment for plaintiff, defendants appeal. Reversed and remanded. See, also, 150 N. Y. Supp. 1119. Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, DOWLING, and HOTCHKISS, JJ. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Joseph M. Proskauer, of New York City, for appellants. MCLAUGHLIN, J. I think the judgment appealed from should be reversed. [1, 2] First. The evidence does not, as I read the record, sustain a finding that the accident was due to the negligence of the plaintiff's employers, or that they were in any way responsible for the falling of the door; on the contrary, the only fair inference is that the landlord took charge of the repairs and directed one of its employés (the elevator operator) to remove the door. But, even if it be assumed that the plaintiff's employers had directed the door to be repaired or removed, this, in and of itself, did not establish that they were negligent, unless the doctrine of res ipsa loquitur applies, and I do not think it does. In Marceau v. Rutland R. R. Co., 211 N. Y. 203, 105 N. E. 206, 51 L. R. A. (N. S.) 1221, the court, referring to the application of this doctrine, when the relation of master and servant exists, said: "In the nature of things the injured employé, who sues his employer, must present a much higher degree of proof than is necessary in the case of a wayfarer or passenger. If the injured employé sues at common law and seeks to invoke the maxim, he must necessarily make proof of facts and circumstances which, under the common law, exclude every inference except that of the employer's negligence." Here, not only did the plaintiff fail to exclude other inferences than her employers' negligence, but, as indicated, the inference to be drawn. from all the evidence is that the condition of the door was due to the action of the landlord. Besides, from the testimony offered on behalf of the plaintiff it appears that the hinges of the door were out of repair, and to remedy the same the door had been removed by an employé of the landlord. He, according to the testimony of one of plaintiff's witnesses, "took off that door and had been fixing it, and was doing the work, and he don't know himself how it happened to fall." It did not appear whether the door had been replaced, or, if so, that the employers had knowledge of that fact. [3] Second. It is undisputed that defendants prepared papers for the appointment of a guardian ad litem for plaintiff, who, being 18 or 19 years of age, would have to sign the petition for such appointment. The defendant Schiff testified that he delivered these papers to the plaintiff's brother for the purpose of having him obtain her signature, and that they were never returned. While the brother denied receiving any such instructions, or that he took the petition away, he did not deny Schiff informed him of the necessity of his sister's signing it as a preliminary to bringing the action. Until the petition had been signed, an action could not be started. The conduct of the plaintiff and her brother, after it is claimed defendants were retained, indicates, with a reasonable degree of clearness, they knew an action had not been started. The plaintiff, at the time of the accident, was 18 or 19 years of age. After defendants were consulted, she gave her claim no further attention for several years. Nor did the brother make any further inquiry for upwards of 3 years. |
