Flint v. Corbitt.

ing to the taste or choice of customers. The defendant's wife chose brocatelle for the covering, which is not usual; samples of which the plaintiffs were to procure and send to her, from which to make her choice. The price of the articles selected, covered with brocatelle, was agreed upon at $216, and all that remained to be done was to cover them with brocatelle and varnish them, and they were to be delivered in a week. The plaintiffs procured the samples, the defendant's wife made her selection, the articles were covered, varnished, and sent to the defendant's house on the following Saturday, who refused to receive them upon grounds which it is not necessary to enter

into.

This was a contract of sale. The articles were already in existence, the covering and varnishing being left until they were sold, that the purchaser might have the selection of the kind of fabric he preferred to have them covered with. The brocatelle was to be procured by the plaintiffs. The cost of it was included in the price agreed upon for the suit of furniture, and the work in putting on the covering and varnishing was done for the plaintiffs to complete their contract for the sale and delivery of the articles. When the contract is for the purchase of an article which the vendor usually has for sale in the course of his business, which he keeps in his warehouse substantially made, but not entirely finished, that the taste or wish of the purchaser may be consulted as to the final finish, the finishing of it in the way that the purchaser prefers does not change it from a contract of sale into a contract for work and labor. What is in contemplation of the parties is the purchase and sale of an article which is examined and selected, but upon which something more is to be done, which, as a matter of taste, choice or expense, is left to the purchaser, and being determined by him, is included in the price, and is done thereafter by the vendor, that he may deliver the article sold and receive the price.

A contract for a certain quantity of lumber, at certain prices, which the vendee examines at the vendor's yard, and directs to be dressed and cut from the lots examined by him, is not a contract for work and labor (Cooke v. Millard, 5 Lansing, 243), and in many other cases to which it would be sufficient to refer

Curtis v. Besson.

to generally, it has been held that the fact that work and labor is performed to complete the article to be purchased, and put it in a condition to be delivered, does not make it the less a contract of sale, or take it out of the operation of the statute (Smith v. Surman, 9 B. & Cres. 561, 613; Dows v. Ross, 23 Wend. 270; Garbutt v. Watson, 5 B. & Ald. 613; Cason v. Cheely, 6 Geo. 554; Bates v. Coster, 1 Hun, 400).

The fact that the defendant's wife selected brocatelle, which is seldom used for covering furniture of this description, and rendered the furniture less salable after the defendant refused to accept it, would not make the putting on of the covering work done for the defendant within the meaning of the rule or test before referred to.

The agreement was a contract for the sale of the furniture. It was within the statute. The judgment was consequently erroneous, and will have to be reversed.

JOSEPH F. DALY and VAN HOESEN, JJ., concurred.

Judgment reversed.

JOHN F. CURTIS against SAMUEL A. BESSON AND ANOTHER. (Decided May 15th, 1876.)

An action brought in a District Court of the city of New York, to recover the possession of personal property, cannot be removed to this court for trial under the provisions of the District Court act of 1857 (L. 1857, ch. 344, § 5), allowing actions to be removed when the amount sued for exceeds $100.

APPEAL by defendants from a judgment of a district court. The facts are stated in the opinion.

Mackay & Kelly, for appellants.

Henry P. Wells, for respondent.

Curtis v. Besson.

ROBINSON, J.-This was an action for the recovery of pos session of personal property, brought in the Third Judicial District Court, under the provisions of the 206th and 207th sections of the Code, as made applicable to the Marine and District Courts of this city by chapter 484 of the Laws of 1862, sec. 17, and the alleged error for which it is sought to reverse the judgment, was that the justice refused to make an order for the removal of the cause before trial to this court, upon tender by the defendant of such an undertaking as was allowed by the District Court act of 1857, chapter 344, section 3, subdivision 3, "in actions commenced in pursuance of this (that) section."

The actions thus referred to were those enumerated in subdivisions 1 and 2 of that section, and were exclusively for the recovery of money not exceeding $250; and the undertaking with one or more sureties was to be approved "by the justice of the court in which such action is (was) commenced, to pay to the plaintiff the amount of any judgment that may (might) be awarded against the defendant by the said Court of Common Pleas."

The jurisdiction of the Marine and District Courts in actions of claim and delivery of personal property, as conferred by the act of 1862, was limited to cases where the value of the property claimed did not exceed two hundred and fifty dollars. This act makes no provision for the removal of any such an action into this court, nor is there any expression used in it indicating any such intention on the part of the Legislature. Besides this, the terms of the provision contained in the act of 1857, sec. 3, are inconsistent with the claims made by the appellant.

By that section, conferring jurisdiction solely of actions for the recovery of money, the power of removal is only "in such actions" (referred to in subdivisions 1 and 2), and the obligation of the undertaking required in such a proceeding is to pay "the amount of any (money) judgment," while in a proceeding for the removal of the action for the recovery of the possession of personal property, any such an obligation would be unadapted to the case, and would not furnish the plaintiff the security for

VOL. VI.-28

Orvis v. Jennings.

the performance of such terms, as the judgment in such an action in favor of the plaintiff would award.

The action for recovery of the possession of personal property is not among such as may be removed into this court under the act of 1857, nor is it made so removable either in the act conferring jurisdiction over it on the District Courts, and the provisions in the act of 1857 for the removal of such actions to this court are inapplicable to it. For these reasons, the justice was justified in refusing to make the order for removal, and no error in this respect was committed.

The judgment should be affirmed.

VAN BRUNT, J., concurred.

Judgment affirmed.

CHARLES B. ORVIS against LOUIS J. JENNINGS AND GEORGE JONES.

SAME against CHARLES A. DANA.

(Decided May 1st, 1876.)

The courts of this-State had before the Code, and still have, an inherent power to order bills of particulars in actions of tort, and may in a proper case order a bill of particulars of the evidence on which is founded the defense of justification in a libel suit.

An application for such a bill of particulars ought, however, to be denied, where the plaintiff only alleges that he does not know by what witnesses and by what evidence the defendants will endeavor to establish the defense, but does not show that he is ignorant of what is charged against him, nor that he cannot prepare for trial for want of knowledge as to what questions of fact will be litigated.

Where the answer in a libel suit simply alleged that the matter claimed to be libelous was true: Held, that as under it no evidence to justify could be offered, that this was ground for denying a motion for a bill of particulars of the evidence to be introduced in support of the answer.

Orvis v. Jennings.

APPEALS from orders of this court made at special term, one in the case of Orvis v. Jennings and Jones, by Judge JOSEPH F. DALY, and one made in the case of Orvis v. Dana, by Judge VAN BRUNT.

Both actions were for libel. In the case of Orvis v. Jennings and Jones, the complaint alleged that on November 25th, 1875, the defendants maliciously wrote, composed and published in "The New York Times" newspaper of which the defendant Jennings was editor, and the defendant Jones was publisher, the following article which it was alleged was false and defamatory, viz:

"A PAIR OF SWINDLERS.

OPERATIONS OF TWO CONFIDENCE MEN IN THIS CITY-THEY RUN UP DEBTS TO A LARGE AMOUNT AND THEN ABSCOND.

"Charles B. Orvis and Dexter A. Reed, two dealers in hard woods, occupying rooms in the same building, No. 52 Center street, have absconded, leaving debts behind them aggregating from $75,000 to $100,000. Orvis is an old swindler. A few years ago he had an office in King street, Toronto, Canada, where he ostensibly dealt in Kansas lands. His real business, however, was to advertise in the daily papers for a clerk with $700 or $800 cash. He employed all persons offering, at high salaries, and gave them his own worthless notes for their money. When the first of the month came around he was in Chicago, where he played a similar game until that city became too warm for him, and he came to New York. His first venture here was in the hotel line, at Eighth street and Broadway. He failed, with $20,000 in judgments recorded against him. He next set up as a private banker in the Stuyvesant building, but his only success here was a marriage which he contracted with a lady of respectable family. After bis marriage he went into the hard wood business on commission. He received a number of consignments from the West, but was so slow in making his returns that his principals made an investigation, the result of which has been his absconding. Reed came hither from one