Page images


bility for such negligence for the sum of money lost follows. ing no error, the judgment must be affirmed, with costs.

NEWBURGER, J., concurs in the result.

(6 Misc. Rep. 627.)

SMITH et al. v. STORM et al. (City Court of New York, General Term. January 18, 1894.) NEGOTIABLE INSTRUMENTS—ACTIONS-PLEADING

A complaint against the indorser of a note is sufficient, on demurrer, where it alleges that the indorsement was to procure credit for a third person, and to induce plaintiffs to extend the payment of a claim then due from defendant on the credit of such indorsement, Appeal from trial term.

Action by John J. Smith, Charles H. Smith, and Elias D. Smith against Walton Storm and others on a promissory note indorsed by said Storm. From a judgment in favor of plaintiffs, defendant Storm appeals. Affirmed.

Argued before NEWBURGER and McCARTHY, JJ.
Samuel R. Taylor, for appellant.
P. Q. & F. L. Eckerson, for respondents.

NEWBURGER, J. This action is brought on a promissory note indorsed by the defendant Storm. The complaint alleges that the indorsement was for the purpose of procuring credit for the Manhattan Athletic Club, and inducing plaintiffs to extend the payment of a claim then due from the defendant on the credit of such indorse. ment. The defendant demurred to the complaint, which was over. ruled, and, from the order entered thereon, this appeal is taken. The complaint states facts sufficient to constitute a cause of action. The objection that there is a defect of parties defendant is untenable. The authorities cited by appellant's counsel have no bearing on the issue raised by the demurrer. For these reasons, the order appealed from must be affirmed, with costs.

(6 Misc. Rep. 528.)

KIRWAN et al. V. BYRNE. (City Court of New York, General Term. January 18, 1894.) SALE-CONTRACT-OFFER AND ACCEPTANCE.

Defendant offered to sell to plaintiffs a quantity of coke tins at a cer. tain price. Plaintiffs replied, “We accept your offer, if full-weight plates." Held, that the reply, being qualified, was not such an acceptance of de fendant's offer as to constitute a contract. McCarthy, J., dissenting. Appeal from trial term.

Action by Edgar F. Kirwan and others against Edward F. Byrne. From a judgment in favor of plaintiffs, defendant appeals. Reversed.


T. C. E. Ecclestine, for appellant.
Shepard, Terry, McKelvey & Prentiss, for respondents.

NEWBURGER, J. This is an appeal by defendant from a judgment for plaintiffs entered upon a verdict directed by the court, and from an order denying a motion to set aside said verdict. The complaint is for damages for breach of a contract by defendant to sell and deliver to plaintiffs 1,500 boxes of coke tins. The answer alleges that no contract whatever was made, although certain negotiations looking towards the making of one took place between the plaintiffs and the defendant, in which the defendant was not a principal, but an agent and broker for others. Defendant is a metal broker, which fact was known to the plaintiffs. On May 16, 1891, he wrote plaintiffs the following letter:

“New York, 16th May, 1891. "To Messrs. Kirwan & Tyler, Baltimore-Gentlemen: I can offer you, subject to prior sale, 1,500 boxes, i. e. 14x20, Bessemer steel coke tins, for June delivery at Locust Point, at $4.95, cash on delivery. This is a very low price, but having offered them to other parties, and having only a limited quantity to sell, I can only offer them to you subject to prior sale. "Yours, very resp'ly,

Ewd. F. Byrne." And plaintiff replied by telegram, May 18, as follows:

"Baltimore, May 18th, 1891. "Mr. E. F. Byrne, 54 Cliff street, New York: We accept your offer 16th, if full-weight plates.

Kirwan & Tyler." Was the reply by the plaintiffs such an acceptance of defendant's order as to constitute a contract? The offer was explicit, and if the answer of the plaintiffs had ended after the word "16th” a con. tract would have been made between the parties. The answer by plaintiffs, however, was a qualification of their acceptance, to wit, “if full-weight plates.” This qualification left the transaction in such a state that, if the plaintiffs did not find the plates full weight; they were at liberty to refuse to accept them. It made the acceptance depend upon facts not contained in defendant's proposal. Το create a binding contract by correspondence, the law required the offer to be accepted by the party to whom it may be made as it shall be contained in the offer itself. An offer of a bargain by one person to another implies no obligation upon the former until it is accepted by the latter according to the terms in which it was made. Until the terms of the agreement have received the assent of both parties, the negotiation is open, and imposes no obligation upon either. Mayer v. McCreery, 9 N. Y. St. Rep. 114, affirmed in 119 N. Y. 434, 23 N. E. 1045; Brown v. Railroad Co., 44 N. Y. 79. The subsequent correspondence between the parties made no change, of benefit to the plaintiffs. For these reasons the judgment must be reversed, and a new trial ordered, with costs to defendant to abide event.

FITZSIMONS, J., concurs,

MCCARTHY, J. I cannot concur with my associates. I think this does constitute a contract, but think the action ought to be brought against the principal.

173 Hun, 119.)

In re EAST RIVER BRIDGE CO. (Supreme Court, General Term, First Department. January 12, 1894.) 1. DECISION OF RAPID TRANSIT COMMISSIONERS—REVIEW.

Where commissioners appointed under the rapid transit act to determine whether or not a proposed elevated railroad is a public necessity report in favor of the enterprise, their determination may be reviewed by

the general term of the supreme court. 2. SAME-FINANCIAL ABILITY OF COMPANY.

Laws 1892, c. 101, incorporated a company to build a railroad across tne city of New York and two bridges over East river, with authority to increase or decrease its capital stock at pleasure. Section 9 authorizes the issue of stock, without requiring payment of the par value thereof. Held, that leave to build the road should be denied, on the ground that the statute affords no adequate assurance of sufficient capital to com:

plete the enterprise. Follett, J., dissenting. 8. SAME-POLICY OF CITY.

It is not impolitic for the city of New York to authorize the construction of an elevated railroad by which facilities will be afforded for persous to go beyond the boundaries of the city. SAME-APPROACHES TO BRIDGE.

The application of a bridge company for leave to build an elevated railroad in lieu of the ordinary approaches to the bridge (Laws 1892, c. 102) will be denied, where no substantial progress has been made towards the construction of the bridge, and it appears that the elevated road might be completed within a short period of time compared with that required for the construction of the bridge. Proceedings by the East River Bridge Company to obtain leave to construct an elevated railroad in the city of New York. titioner moves to affirm the report of the commissioners. Denied.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.

Hoadly, Lauterbach & Johnson, (Edward Lauterbach, G. W. Wingate, and George Hoadly, of counsel) for the motion.

Morris & Steele, (Fordham Morris, G. G. De Witt, and Clarence C. Ferris, of counsel) opposed.

The pe:

VAN BRUNT, P. J. By chapter 101 of the Laws of 1892 the East River Bridge Company was incorporated, certainly with somewhat extraordinary powers. By this act it was organized with a capital of $25,000,000, which it was authorized to increase or decrease at pleasure. It was also authorized to construct two bridges across the East river, -one between a point at or near Broadway, in the city of Brooklyn, across the East river, to a point or place between Delancy and Rivington streets and Columbia and Cannon streets, in the city of New York; and the other commencing at a point between the pier line of East river and Fulton street, in the city of Brooklyn, across the East river, to a point or place between Jackson and Scammel streets, in the city of New York. It was further provided that an approach to said first-mentioned bridge should be constructed and maintained from a point on said bridge at or about Cannon street; thence extending westerly over, through, and along private property, and across the intervening streets, to the Bowery; and thence across the Bowery to Spring street,—which extension might

v.27 2-10

be extended, if in the judgment of a majority of the stockholders it should deemed for public convenience so to do, from its termination at the Bowery and Spring street, westerly, above, through, and along Spring street, to or near the Hudson river, in the city of New York. The company was also authorized to construct all necessary approaches other than those specified, and all necessary connections between said approach or approaches and bridges and any railroad or railroads in the city of New York, so as to enable passengers to be transported to and from the same. By chapter 102 of the Laws of 1892, amending the rapid transit act, the directors of any company incorporated to construct, maintain, and operate a bridge or bridges connecting a city of more than 1,000,000 of inhabitants with another situate in the state, and by the act of incorporation by which authority should have been conferred, or intended to be conferred, to construct, maintain, and operate, as a part of, or in connection with, this bridge, an approach or approaches thereto, extending generally in an easterly or westerly direction, may determine, in lieu of constructing such approach or approaches, to build, maintain, and operate an elevated railway, the route of which shall be coincident with the route of said approach or approaches as defined by said act. The method of procedure of such bridge company in that behalf was by the amendatory act prescribed and regulated. The directors of the petitioner located the main cross-town approach above mentioned through a new street 50 feet wide, through private property, to the Bowery, and from thence, absorbing Spring street, through the same to West street, and thence, turning to the south, it continued along West street 1,200 feet, to the Desbrosses street ferry, connecting with the ferries of the Pennsylvania Railroad. An approach was also located to connect one bridge with the other, and to extend from such junction through Grand street to the East river. The directors of the bridge company determined to construct, in lieu of these approaches, an elevated railroad, and adopted a plan, of which a copy is annexed to the petition. The consent of the local author- . ities to the construction was given, and the capital of the corporation reduced to $2,000,000, 10 per cent. of which has been paid in. The property holders along the proposed line of said elevated rail. roads having refused their consent to their construction, application was made to the general term for the appointment of commissioners under the rapid transit act, which commissioners were appointed, who reported in favor of the enterprise; and the question now presented is whether the court should confirm the same.

The learned counsel for the petitioner seems to have a rather exalted idea of the functions and the dignity of the determination of the commissioners appointed in this proceeding. It is urged that the determination of the commissioners that the construction of the proposed road is a public necessity will not be reviewed by this court, except fraud or manifest error on their part be averred, which is not the case, and that the conclusions arrived at by them upon all matters of fact are the same as the verdict of a jury, as far as this court is concerned; and our attention is called to the case of In re Nassau Cable Co., 36 Hun, 272, where, the commissioners having reported adversely to the building of the proposed road, it was held that, in the absence of fraud or mistake in the proceedings, the general term had no power to send the case back, or to appoint a new commission, but that the determination of the commissioners was final. This conclusion was evidently in accord. ance with the law. There is no provision in the rapid transit act for any action upon the part of the court unless the report of the commissioners is in favor of the construction of such railroad. Hence, by the very terms of the act, if the commissioners report against the enterprise, it is final; and for that reason the commissioners, in proceedings of this nature, have always resolved questions in regard to which there may be any possible doubt in favor of the applicant, in order that it may be finally determined by the court as to whether their conclusion should be confirmed or not. Our attention is also called to the case of In re New York El. R. Co., 70 N. Y. 357, where the court of appeals say that they cannot, or at least ought not, to interfere with the findings of the commissioners upon questions of fact. Upon an examination of the act it is difficult to see where the court of appeals have any authority or jurisdiction to interfere with the question as to whether the benefits arising from the construction of an elevated railroad are of such a character as to counterbalance any damage which will be done to private interests from its operation. This court is of opinion that the responsibility in respect to this matter of construction finally rests with it, and it is to determine, where the property holders have refused their assents, upon all the facts before the commission. ers, and those of which they may take judicial notice, whether it should authorize the construction of the railroad, notwithstanding the objection of the persons who would be injuriously affected there. by.

It is not at all necessary to discuss any of the constitutional questions which have been raised upon this application, because, as we understand it, the court of last resort has practically swept away all the limitations which have been attempted to be placed upon private and local enterprises affecting private interests. In Re Church, 92 N. Y. 1, it has been held that a law relating to particular persons or things as a class was general, while one relating to particular persons or things of a class was deemed local or private; and that an act which under no possible circumstances could apply to but a single county of the state, because it created a class consisting of one, and did not refer by name to the individual composing this class of one, was not local, but general, and therefore constitutional. Under this decision, all that it is necessary to do to evade the constitutional provision is to use general language, qualified, however, by particular descriptions which can make it applicable only to the particular thing in respect to which there is an intent to legislate.

An objection has also been raised that the petitioner has not sufficient means or capital to complete the enterprise, or to compensate the property owners for the damage which will result in

« PreviousContinue »