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“There was no contractual relation existing beween these parties, and therefore the liability of the defendant for the injuries received by the plaintiff, if any exists, results from his failure to observe the obligation, which the law imposes upon a party engaged in the prosecution of any work, of performing the same in such a manner as not to endanger the lives or persons of other parties. This is a very well-settled principle, and it applicable to all cases where a person is engaged in the performance of work which, withcut the exercise of a reasonable degree of care and prevision, may be attended with risk and danger to others.”

Ever since the case of Thorne v. Deas, 4 Johns. 84, in which Chief Justice Kent clearly pointed out the distinction between liability for misfeasance and lack of liability for nonfeasance, that distinction has been recognized and followed by the courts of this state. In Smedes v. Bank of Utica, 20 Johns. 372, the court said:

“There is a well-settled distinction between actions for nonfeasance and for misfeasance. When one party intrusts the performance of a business to another, who, without consideration, undertakes, but wholly omits to do it, no action lies, notwithstanding the plaintiff may have sustained special damages; but if the party enters upon the execution of the business, and does it amiss, through the want of due care, by which damage ensues to the other party, an action will lie for the misfeasance."

See, also, Nolton v. Western Railroad Corporation, 15 N. Y. 444, 69 Am. Dec. 623; Pennsylvania Steel Co. v. Elmore & Hamilton Contracting Co. (C. C.) 175 Fed. 176; Pittsfield Cotton Wear Mfg. Co. v. Pittsfield Shoe Co., 71 N. H. 522, 53 Atl. 807, 60 L. R. A. 116; Attleboro Mfg. Co. v. Frankfort Marine Ins. Co., 240 Fed. 573, 153 C. C. A. 377; Cox v. Mason, 89 App. Div. 219, 85 N. Y. Supp. 973; Condon v. Exton-Hall Brokerage & Vessel Agency, 80 Misc. Rep. 369, 142 N. Y. Supp. 548.

[4] The plaintiff does not seek to recover damages for the breach . of the contract between the defendant and Garlock, the plaintiff's master, and that contract is not set out in the complaint for the purpose of showing that it has been broken by the defendant. It was properly set out for the purpose of showing the relationship existing between the parties, for the defendant's duty to the plaintiff arose out of the relations existing between them. Garland v. B. & M. R. Co., 76 N. H. 556, 86 Atl. 141, 46 L. R. A. (N. S.) 338, Ann. Cas. 1913E, 924; Attleboro Mfg. Co. v. Frankfort Marine Ins. Co., supra.

[5] We think that the allegations of the complaint state a cause of action. The order and the judgment sustaining the demurrer is reversed, with $10 costs.

Order and judgment reversed, with $10 costs and disbursements, and demurrer overruled, with $10 costs, with leave to the defendant to plead over within 20 days upon payment of costs of the motion and of this appeal. All concur.

(184 N.Y.S.)

328 EAST TWENTY-SIXTH ST. REALTY CO., Inc., V. KAHN et al.

(Supreme Court, Special Term, New York County. April 15, 1920.)

1. Vendor and purchaser w214 (6) —Assignment by purchaser does not make assignee liable on covenants.

The assignment by the original purchaser of a contract for the sale of

land does not make the assignee liable to the vendor upon the covenants. 2. Specific performance wo 17--Remedy not available to assignee, who did

not assume obligations of contract.

The assignee of a contract for the purchase of land, who did not assume the obligations of the contract, cannot sue the vendor for specitic per

formance, since he could not be compelled to perform the contract. 3. Novation Om 5–Agreement for adjournment of closing title not a novation,

After the assignment of a contract for the purchase of land, a mere agreement for an adjournment of the closing of title does not necessarily imply a novation. Action by the 328 East Twenty-Sixth Street Realty Company, Incorporated, against one Kahn and others, for specific performance of a contract for the sale of real estate. Demurrers to complaint sustained.

Louis Boehm, of New York City, for plaintiff.
William Stanley Miller, of Brooklyn, for defendant Kahn.

PLATZEK, J. [1-3] The assignment by the original vendee of the contract of sale did not make the plaintiff liable to the vendor upon the covenants. Since specific performance could not have been enforced against plaintiff at the suit of the vendor, in the absence of an assumption of the obligations of the contract, such an action will not lie against the vendor at the suit of plaintiff. Genevetz v. Feiering, 136 App. Div. 736, 121 N. Y. Supp. 392; Hugel v. Habel, 132 App. Div. 327, 117 N. Y. Supp. 78; Dittenfass v. Horsley, 177 App. Div. 143, 163 N. Y. Supp. 626, affirmed 224 N. Y. 560, 120 N. E. 861. The mere agreement for an adjournment of the closing of title does not necessarily imply a novation.

The demurrers are sustained, with $10 costs to each set of defendants separately demurring, with leave to plaintiff to amend within 10 days on payment of such costs.

Settle order on notice.

(193 App. Div. 269)

SCHUYLER v. KIRK-BROWN REALTY CO.

(Supreme Court, Appellate Division, Fourth Department, July 6, 1920.) 1. Specific performance (17—Not available to assignee, who did not as

sume obligations.

The assignee of a contract for the purchase of land, who did not assume the performance of the obligations of the contract to the vendor, cannot compel specific performance by the vendor, since the vendor could not enforce the contract against him. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

2. Specific performance Omw 126 (3) —Complaint not demurrable, though plaintiff is not entitled to specific performance.

Where the complaint for specific performance failed to state facts entitling plaintiff to that relief, but contained a prayer for a money judgment in case defendant could not make good title, and stated facts entitling plaintiff to recover damages at law, a demurrer to the com

plaint for failure to state a cause of action was properly overruled. Appeal from Special Term, Onondaga County.

Action by William A. Schuyler against the Kirk-Brown Realty Company for specific performance of a contract for the purchase of land. From an order overruling its demurrer to the complaint (109 Misc. Rep. 258, 178 N. Y. Supp. 568), defendant appeals. Affirmed.

Argued before KRUSE, P. J., and FOOTE, LAMBERT, DE ANGELIS, and HUBBS, JJ.

Bond & Schoeneck, of Syracuse (George H. Bond, of Syracuse, of counsel), for appellant.

Hancock, Spriggs, Melvin & Hancock, of Syracuse (Benjamin E. Shove, of Syracuse, of counsel), for respondent.

HUBBS, J. The defendant, as party of the first part, entered into a contract with T. Aaron Levy, as party of the second part, by which it was agreed that the defendant, the owner of a certain parcel of land, would sell the same to Levy for the sum of $36,500. Five hundred dollars of the purchase price was paid at the time of the execution of the contract, a certain portion of the balance was to be paid on the delivery of the deed, and the remainder was to be secured by a bond and mortgage to be given by the party of the second part. The contract provided that it should hind the heirs, executors, administrators, and assigns of the parties thereto. Thereafter Levy, the party of the second part to the contract, sold and assigned the same to the plaintiff for a valuable consideration. The plaintiff brought this action to compel specific performance of the contract.

The complaint alleges the making and execution of the contract, the assignment thereof to the plaintiff, and the refusal on the part of the defendant to comply with its terms. It further alleges that Levy, the plaintiff's assignor, had duly performed all of the conditions of the said contract, and that the plaintiff is ready and willing to fulfill all of the obligations imposed upon the plaintiff's assignor, or upon himself as assignee, by said contract, and he is ready and willing, and offers, to pay the purchase money to the defendant, and to give to the defendant a bond, executed by the plaintiff's assignor, Levy, or by plaintiff, or by both, as the defendant may elect, and the purchasemoney mortgage provided for in the contract. The complaint demands judgment for specific performance of the contract. It is also alleged in the complaint that $500 was paid by the plaintiff's assignor to the defendant at the time of the execution of the contract, and that the plaintiff's assignor, Levy, and the plaintiff, have in good faith expended, for maps, searches and legal services in searching the title to the property, the sum of $150, and judgment is demanded that, in case the defendant cannot make a good title to the

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

(184 N.Y.S.) property, the defendant be adjudged to pay to the plaintiff the said sum of $650.

The defendant interposed a demurrer to the complaint, upon the ground that it does not state facts sufficient to constitute a cause of action. The learned Special Term overruled the demurrer, and the defendant has appealed to this court.

The defendant contends that the complaint does not state a cause of action for specific performance of the contract, because it does not allege that the assignee of the said contract, the plaintiff herein, in and by said assignment assumed all of the obligations and covenants imposed by the terms of said contract on his assignor. The language of the complaint is as follows:

"Prior to the commencement of this action T. Aaron Levy, hereinafter referred to as plaintiff assignor, sold, assigned, an transferred to the plaintiff herein, for a valuable consideration, all his right, title, and interest in, to, and under the contract hereinafter referred to."

There is no allegation in the complaint that the plaintiff assumed the covenants and obligations of his assignor. Neither is there an allegation that the defendant accepted the plaintiff in the place and stead of the said assignor, Levy, or consented to the assignment of the contract from Levy to the plaintiff. Therefore the question is squarely presented as to whether or not the assignee of a vendee in a land contract can maintain an action for specific performance against the vendor, where the assignee has not assumed the obligations and covenants imposed by the contract on his assignor. The question involved is not free from doubt, and, if we did not feel that we are bound by certain decisions of the Court of Appeals, we would be well satisfied to let the decision in this case stand upon the learned opinion of the justice at Special Term.

It is undisputed that the assignment to the plaintiff transferred to him the assignor's rights against the defendant; but it did not transfer the assignor's liabilities to the defendant, because there was no agreement on the part of the plaintiff to assume the liabilities of his assignor. There have developed in this state two lines of authorities-one holding that in such a case an action for specific performance will not lie against the vendor, because there is no mutuality between the assignee and the vendor; that is, that the vendor, not being in a position where he can succeed in an action for specific performance against the assignee of the contract, is not liable in an action for specific performance brought by the assignee of such a contract against him; and the other line of authorities holding that where there is a legal contract, and a court of equity by its decree can adjudge a full performance by both parties, so that each shall receive from the other everything that he is entitled to under the contract, then such court has jurisdiction to decree specific performance, and there is no want of mutuality, and that even though a vendor might not have been able, in an action brought by him, to compel specific performance against the assignee of the contract, still, where the action is brought by the assignee, and he has submitted himself to the jurisdiction of the court, the court will retain jurisdiction and make a decree enforc

184 N.Y.S.—7

ing the contract as to both of the parties, compelling the defendant to transfer the title to the assignee upon the compliance by the assignee with all of the conditions of the contract.

[1] The reasons for the divergence in the application of the principles involved under the doctrine of mutuality in contracts have been discussed in many decisions in this state. The learned Special Term, in overruling the demurrer, has adopted the second line of reasoning set forth above. It would serve no useful purpose for us to review the cases upon this question, as we feel constrained to follow what we understand to be a final determination of the question by the Court of Appeals. It seems to us that the Court of Appeals has held that there can be no specific performance in a case like this, even though the plaintiff has tendered to the defendant that which he is entitled to receive under the contract; that, as the defendant is not entitled to maintain an action for specific performance against the plaintiff, there is want of mutuality of obligation and remedy, which prevents a court of equity from exercising jurisdiction in an action for specific performance brought by the assignee against the vendor. The following cases have established that principle: Ide v. Brown, 178 N. Y. 26-39, 70 N. E. 101; Wadick v. Mace et al., 191 N. Y. 1, 83 N. E. 571; Levin v. Dietz, 194 N. Y. 376, 87 N. E. 454, 20 L. R. A. (N. S.) 251; Dittenfass v. Horsley, 177 App. Div. 143, 163 N. Y. Supp. 626, affirmed 224 N. Y. 560, 120 N. E. 861. See, also, Genevetz v. Feiering, 136 App. Div. 736, 121 N. Y. Supp. 392 ; Hugel v. Habel, 132 App. Div. 327, 117 N. Y. Supp. 78. Dean Stone, in a very able article in the Columbia Law Review (volume 16, p. 443), questions the decisions above referred to, but concedes that they hold as above stated. [2] The plaintiff cannot maintain the action for specific perform

The demurrer was properly overruled, however, as the complaint sets out a cause of action upon which the plaintiff would be entitled to recover $630, if no answer were interposed. Where the complaint states facts which show that the plaintiff is entitled either to equitable or to legal relief, the complaint is not demurrable upon the ground that it fails to state facts sufficient to constitute a cause of action. If the facts set out in the complaint justify either legal or equitable relief, a demurrer upon that ground is not well interposed. Gillespie v. Montgomery, 93 App. Div. 403, 87 N. Y. Supp. 701 ; Wisner v. Consolidated Fruit Jar Co., 25 App. Div. 362, 49 N. Y. Supp. 500; Mitchell et al. v. Thorne, 134 N. Y. 536, 32 N. E. 10, 30 Am. St. Rep. 699. Clearly the complaint in this case states a cause of action at law for $650 damages. The order overruling the demurrer should be affirmed, with costs and disbursements.

Interlocutory judgment affirmed, with costs, with leave to the defendant to plead over within 20 days upon payment of costs of the demurrer and of this appeal. All concur.

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