RUBIN v. ERNST. (Supreme Court, Appellate Term, First Department. March 4, 1915.) BROKERS (888*)-ACTIONS FOR COMMISSIONS-INSTRUCTIONS. In a broker's action for commissions against A., where defendant's evidence indicated, and the court in its charge assumed, that A.'s brother E., who claimed to own the property, though the record title was in A., was the person who negotiated with the broker, instructions to find whether plaintiff brought a purchaser ready, able, and willing to buy at the figure given by the brother, and whether the minds met, and that the brother was the undisclosed principal, and that all the negotiations had by him were binding upon defendant as the acts of defendant's undisclosed principal, were erroneous, as they amounted to an instruction that defendant was personally liable for contracts made by his brother with respect to property held by him as a convenience to his brother, and while real property, the title to which is in a dummy, may be subjected to a lien arising out of contracts made by the true owner, the dummy is not as a matter of law personally liable on such contracts. [Ed. Note. For other cases, see Brokers, Cent. Dig. §§ 121, 123–130; Dec. Dig. § 88.*] Appeal from Municipal Court, Borough of the Bronx, Second District. Action by Jacob Rubin against Alois L. Ernst. From a judgment in favor of plaintiff, defendant appeals. Reversed, and new trial ordered. Argued February term, 1915, before GUY, PENDLETON, and SHEARN, JJ. Arthur O. Ernst, of New York City (Samuel R. Wachtell, of New York City, of counsel), for appellant. Louis Julien, of New York City (Moses Morris, of New York City, on the brief), for respondent. GUY, J. In this action the defendant, Alois L. Ernst, was sued for commissions on a sale of real property. The plaintiff, a broker, claimed that he had procured a purchaser ready, able, and willing to buy the property at a price agreed upon, and that the defendant, after the agreement was ratified, had made a contract through another broker for a sale to a third party. Sacks, the purchaser claimed to have been. obtained by the plaintiff, afterwards took an assignment of the contract for $50, and received a deed from the defendant on the terms prescribed in the contract. After the plaintiff had testified to several conversations he had with "Mr. Ernst," he was asked to point out in court the man he had such conversations with, and he pointed out a man who, he said, told the plaintiff he was Al. Ernst, and said that the man so indicated was the man he first spoke to in the matter. It appears, however, that Carl Ernst, a brother of the defendant, was also in court, and according to the testimony introduced by the defendant, if in fact it was not conceded, Carl was the one who had all the transactions with the plaintiff, and the defendant never saw the plaintiff until he met him in court. Carl Ernst, defendant's brother, testified that he was the owner of the *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 151 N.Y.S.-54 property; that the title was taken in the name of the defendant, Alois L. Ernst, because, when Carl purchased the property, Carl held a second mortgage on it, and he wanted to avoid a merger of the mortgage in the fee. The learned trial judge in charging the jury apparently assumed that all the transactions of the plaintiff with reference to the property in question were with Carl. He instructed the jury as follows: "Under the solemnity of your oaths you must try to reconcile all the facts, and find out: Did this plaintiff bring a purchaser ready, able, and willing to buy this property at the figure given by this defendant, Carl Ernst, the brother of the defendant, and did the minds meet?" And he further said: * * "In law, I charge you that the brother, the defendant here, was the undisclosed principal, ** ** and all the negotiations that were had by Carl Ernst I charge you would be binding upon the defendant here. • All acts of Carl Ernst were really the acts of his undisclosed principal, namely, the defendant in this action." This charge was tantamount to an instruction that as matter of law the defendant, who, according to the testimony introduced on his behalf, held title to the property merely as a convenience to his brother, was personally liable for all the contracts made by his brother with respect to the property. While real property, the title to which is in a mere dummy, would in a proper case be subjected to a lien arising out of contracts made by the true owner, it cannot be said as matter of law that such dummy is personally liable on such contracts merely because he holds title to the property. In this case the jury were not bound to believe the testimony of the brother that he was the true owner. Plaintiff's counsel had claimed on the trial that the brothers were copartners; and on the confusing record before us there was some evidence in the case which called for the submission to the jury of the question whether the defendant had authorized the making of the contract sued upon. See Kennon v. Poerschke, 148 App. Div. 839, 133 N. Y. Supp. 528. Judgment reversed, and a new trial ordered, with costs to appellant to abide the event. All concur. HUNT v. ARMSTRONG. (No. 6869.) (Supreme Court, Appellate Division, First Department. February 19, 1915.) 1. ACTION (§ 48*)-JOINDER-DAMAGES AND RESCISSION. A complaint which seeks damages for breach of a contract, and also asks that it be declared void for fraud, states two inconsistent causes of action; one affirming the contract, and the other seeking its rescission. [Ed. Note. For other cases, see Action, Cent. Dig. §§ 450, 471, 490-510; Dec. Dig. § 48.*] 2. PLEADING (§ 406*)-OBJECTIONS-WAIVER-MISJOINDER. Under Code Civ. Proc. § 488, stating the grounds of demurrer, including the improper uniting of causes of action, section 498, providing that, where the matters enumerated as grounds of demurrer do not appear on the face of the complaint, the objection may be taken by answer, and section 499, providing that, if the objection is not taken by demurrer or anFor other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes swer, the defendant is deemed to have waived it, except the objection to the jurisdiction, or to the failure of the complaint to state sufficient facts, the objection of improper joinder of causes of action for damages for a breach of contract and for rescission of the contract for fraud is waived, if not taken by demurrer or answer, and cannot be raised by motion for judgment on the pleadings. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 1355-1359, 13611365, 1367-1374, 1386; Dec. Dig. § 406.*] 3. PLEADING (§ 345*)—JUDGMENT ON PLEADINGS-INCONSISTENT CAUSES OF ACTION. If a complaint states any cause of action, even if it states inconsistent ones, judgment on the pleadings cannot be granted to defendant, though plaintiff might be compelled to elect at the trial upon which cause of action he would rely. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 1055-1059; Dec. Dig. § 345.*] Appeal from Special Term, New York County. Action by Mazie E. Hunt against Paul Armstrong. From an order denying a motion for judgment on the pleadings, defendant appeals. Affirmed. Argued before INGRAHAM, P. J., and MCLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ. Phelan Beale, of New York City, for appellant. Hunt, Hill & Betts, of New York City (Francis H. Kinnicutt, of New York City, of counsel), for respondent. CLARKE, J. The main ground of the motion for judgment upon the pleadings urged by the appellant is that the complaint is fatally defective, in that causes of action are improperly united. The pleadings consist of a complaint and an answer. Section 488 of the Code of Civil Procedure provides: "The defendant may demur to the complaint, where one or more of the following objections thereto appear upon the face thereof: * * * "7. That causes of action have been improperly united. "8. That the complaint does not state facts sufficient to constitute a cause of action." Section 498 provides: "Where any of the matters enumerated in section 488 of this act as ground of demurrer do not appear on the face of the complaint, the objection may be taken by answer." And section 499 provides: "If such an objection is not taken, either by demurrer or answer, the defendant is deemed to have waived it, except the objection to the jurisdiction of the court, or the objection that the complaint does not state facts sufficient to constitute a cause of action." [1] The complaint states two inconsistent causes of action, although growing out of the same transaction. The first affirms a contract and demands damages for breach thereof. The second sets up false and fraudulent representations, inducing entering into the contract and asks that it be declared to be null and void. One is therefore based upon affirmance, and the other upon rescission. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes [2] But this objection, being a ground for demurrer provided for in subdivision 7 of section 488, was not taken by demurrer, although it appears upon the face of the complaint, nor was it taken by answer. It therefore must be deemed waived under section 499. From the multitude of cases interpreting these sections, we cite the following having to do with the precise point at bar, namely, inconsistent causes of action. In Marks v. Townsend, 97 N. Y. 590, while the court held that a cause of action for malicious prosecution and one for false imprisonment were not inconsistent with each other, and, as they were both for personal injuries, could be contained in the same complaint, Judge Earl, writing for a unanimous court, also said: "But as the objection to the joinder was not taken in the answer or by demurrer, it was in any event waived. Code § 499." In Isear v. Hoadley, 44 App. Div. 161, 60 N. Y. Supp. 609, Rumsey, J., said: "The defendants' objection to the complaint was that there was a misjoinder of causes of action. This objection appeared on the face of the complaint, but no notice was taken of it by demurrer, as it might have been, nor did the defendants object to the misjoinder by their answer. The Code pro vides that, if that objection is not taken either by demurrer or answer, the defendant is deemed to have waived it. Code Civ. Proc. § 499. Within that rule it was the duty of the court to have paid no attention to this objection, and it was erroneous to dismiss the complaint because of it." In Shaw v. City of New York, 83 App. Div. 212, 82 N. Y. Supp. 44, McLaughlin, J., said: "If causes of action were improperly united, under subdivision 7 of section 488 of the Code of Civil Procedure, defendant could have raised that question by demurring to the complaint, and, not having done so, he must be deemed, under section 499 of the Code of Civil Procedure, to have waived such objection." In Erie Basin Improvement Co. v. Smith, 135 App. Div. 365, 120 N. Y. Supp. 323, the court said: "Had a demurrer been interposed upon the ground of misjoinder of causes of action, it may be that it would have been sustained with respect to the joinder of the causes of action against the defendants who are the owners of the two parcels to the south; but that objection, not having been * taken by demurrer, has been waived." [3] This being a motion for judgment upon the pleadings for the dismissal of the complaint, the complaint may not be dismissed if it discloses any cause of action. If there be two inconsistent causes of action, a motion to compel the plaintiff to elect upon the trial might properly be made. The appellant also claims that the complaint does not state facts sufficient to constitute a cause of action. This objection is properly raised upon the motion for judgment upon the pleadings, as it is a ground for demurrer expressly excepted from the provision regarding waiver. We think the complaint does state facts sufficient to constitute a cause of action, and the order appealed from, denying defendant's motion for judgment upon the pleadings, should be affirmed, with $10 costs and disbursements to the respondent. All concur. WOOD v. WILSON. (No. 6941.) (Supreme Court, Appellate Division, First Department. February 26, 1915.) DISCOVERY (§ 31*)—EXAMINATION OF ADVERSE PARTY-TIME OF EXAMINATION -JOINDER OF ISSUE Plaintiff is not entitled to an examination of defendant as a party before issue joined. [Ed. Note. For other cases, see Discovery, Cent. Dig. § 45; Dec. Dig. § 31.*] Appeal from Special Term, New York County. Action by Otis F. Wood against Rose O'Neill Wilson. From an order denying the motion of Rose O'Neill Wilson to vacate an order for her examination, she appeals. Reversed. Argued before CLARKE, LAUGHLIN, SCOTT, DOWLING, and HOTCHKISS, JJ. William W. Corlett, of New York City, for appellant. PER CURIAM. It is obvious that the plaintiff has all the knowledge necessary to enable him to frame a complaint. After issue joined he may be entitled to examine the defendant as a party; but such an examination is not authorized before issued joined. The order appealed from should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. BARUCH v. BUCKLEY et al. (No. 6867.) (Supreme Court, Appellate Division, First Department. February 19, 1915.) 1. BILLS AND NOTES (§ 335*)-CONDITIONS-EFFECT Of. The maker and indorser of negotiable paper has the right to restrict its use, and one who takes with knowledge that it has been diverted from the condition under which it was delivered cannot recover. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. § 817; Dec. Dig. § 335.*] 2. PRINCIPAL AND AGENT (§ 177*)—NOTICE TO PRINCIPAL. Notice of defects in a note, given to one who was plaintiff's agent both in accepting the note and paying the consideration, was binding on plaintiff. [Ed. Note. For other cases, see Principal and Agent, Cent. Dig. §§ 670679; Dec. Dig. § 177.*] 3. BILLS AND NOTES (§ 337*)-INDORSEMENT-GENUINENESS. That the maker of a note was a person of slight means, or was financially embarrassed, is not notice to a purchaser that defendant's indorsement of the instrument was subject to conditions. [Ed. Note. For other cases, see Bills and Notes, Cent. Dig. §§ 818, 856863; Dec. Dig. § 337.*] 4. BILLS AND NOTES (§ 335*)-INDORSERS-LIABILITY. Defendant indorsed a note on condition that it should not be negotiated until another indorser had been procured. The maker negotiated the instrument to plaintiff in defiance of the condition, at that time re*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |