(47 Misc. Rep. 35.)

In re TODD'S ESTATE.

(Surrogate's Court, Monroe County. April, 1905.)

EXECUTORS And AdminstRATORS-CLAIMS AGAINST ESTATE EVIDENCE.

A wandering peddler, for services rendered to him, executed a writing promising payment to claimant of $5,000 after his death from his estate "for all my trouble and all her kindness" to him. He had stayed at claimant's house for several days at a time, five or six times a year, without making any payment therefor. He called the instrument a "Unique Charity." Held to show that decedent knew that the compensation was beyond the value of the services rendered, but that the claim under the instrument was valid and enforceable against his estate.

In the matter of the estate of George W. Todd, deceased. Claim presented against the estate upon the following instrument, contained in a patent medicine almanac:

"Onondaga Hill, Sept. 16, 1899.

"Unique Charity.

"I promise Maggie Mattice five thousand dollars when I die for all my trouble and all her kindness to me. I also killed her canary bird to-day for which she must have her pay for this account must be payed after my death from my estate.

"George W. Todd, Peddler, the Man Behind the Wheelbarrow."

The testimony presented upon the hearing showed that the maker of the note for several years had stopped at the house of claimant and her husband for several days at a time, five or six times a year, and that no charge had ever been made for his entertainment and care. At the close of the testimony offered in behalf of the claimant, counsel for the administrator moved to dismiss the claim upon the ground that the paper in evidence was not a promissory note; that it did not acknowledge an indebtedness, and was without consideration; that it appeared upon the face of the paper that it was an engagement to give only, and did not contain a promise or obligation to pay the money to the claimant; that it appeared upon its face that it was an act of charity, and that the paper was not properly executed in accordance with the statutes of the state; that the paper was a nudum pactum; that it was an executory contract, given without consideration. Judgment for claimant.

C. D. Kiehel, for administrator.

J. R. Collins (H. F. Remington, of counsel), for claimant.

BENTON, S. I understand there was no relationship between these parties; hence all services import a promise to pay. The evidence shows services were rendered, and services which a man in his situation would very likely appreciate. He came there from time to time, he stayed there absolutely without recompense, he was cleaned up from a lousy condition more often than once while he was there, and he killed the canary on this particular day. Now, he was a close and grasping man. He knew the value of money. That is evident. He knew that $5,000 was more than compensation in the market for these things which had been rendered to him, and

and 129 New York State Reporter

hence he put that heading "Unique Charity." But I understand the law to be that a person may give an exorbitant price for a thing if he sees fit to do it, and, even though he acknowledges himself that the price he gives is in effect a charity to a great extent, yet a promise to so pay is a good promise and enforceable in the law. They may fix such a measure of compensation for services as they may see fit. He saw fit to put a value on it with those words. The trouble and the services express the consideration for the paper, what he was paying for, as well as the words, "the canary." Now, we do better justice to give the words the practical interpretation than to depend upon subtleties which probably do not enter into the minds of people when they are doing such a thing. I think the man there wanted to make a payment in consideration for values which he had received. He had a right to do that. He wanted to make a compensation which he knew to be beyond the actual value, but which he was willing to put as a value, and hence he called it a "Unique Charity." That is my interpretation of it. I think he had an absolutely legal right to do it, and that the paper is a valid paper and enforceable.

Decreed accordingly.

(48 Misc. Rep. 169.)

FRANKE et al. v. N. W. TAUSSIG CO.

(Supreme Court, Special Term, New York County. August, 1905.) PLEADING INCONSISTENT CAUSES OF ACTION-ELECTION.

A complaint alleging the sale under an express contract of a certain amount of sugar at a certain agreed price, on which a certain balance due is claimed; the sale and delivery of the same quantity of sugar of the same value, alleged to be the reasonable worth, with a claim of the same balance due; and that defendant came into possession of a certain quantity of sugar belonging to plaintiff, of a certain value (the amount previously claimed as the balance due), the wrongful detention thereof, plaintiff's election to waive the conversion, and demand for payment of such value as on an implied contract, with defendant's refusal to pay the same and plaintiff's damage in the amount named-does not state causes of action so inconsistent and repugnant as to require election.

[Ed. Note.-For cases in point, see vol. 39, Cent. Dig. Pleading, §§ 1199, 1200.]

Action by Edward I. Franke and others against the N. W. Taussig Company. Defendant moves to compel election between causes of action alleged. Denied.

Leo Levy, for the motion.

Alexander & Colby (H. G. Wiley, of counsel), opposed.

GIEGERICH, J. The defendant moves to compel the plaintiffs to elect between the three causes of action set forth in the complaint and to state upon which one they will rely. The first cause of action alleges, in substance, the sale and delivery under an express contract of 16,019 bags of sugar at an agreed price of $202,922.01, on which there is claimed a balance due of $11,307.59. The second cause of action alleges the sale and delivery of the same

quantity of sugar of the same value, alleging such value, however, as the reasonable worth, instead of the agreed price, and claiming a balance due of exactly the same amount. The third cause of action alleges that the defendant came into possession of 1,019 bags of sugar belonging to the plaintiffs of the value of $11,307.59, the wrongful detention of the same, the plaintiffs' election to waive the conversion and demand for payment of the aforesaid value as upon an implied contract, with the defendant's refusal to pay the same and the plaintiffs' damage in the amount named.

On behalf of the defendant it is insisted that these causes of action are so inconsistent and repugnant as to embarrass justice, but I cannot agree in that view. The principal case relied upon (Mayo v. Knowlton, 134 N. Y. 250, 31 N. E. 985) is altogether different from the present. There an attempt was made to recover on two causes of action-one based on the theory of a rescission of the contract because of fraud and the recovery of the purchase price, while the second was based upon the theory of an affirmance of the contract by retention of the stock and a recovery of damages sustained by reason of false representations made in respect to value. It was there said (page 252 of 134 N. Y., page 986 of 31 N. E.):

"The two claims are based upon conflicting or inconsistent theories, and the plaintiff was not entitled to recover upon both. Six of the jurors might find in his favor upon the first and against him on the latter, whilst the other six jurors might find in his favor upon the second and against him upon the former. If entitled to recover back the purchase price of the stock, he would not be entitled to recover for the damages sustained by reason of its being of less value than that which he paid for it. If he was entitled to recover damages for the false representations made in reference to its value, etc., he would not be entitled to recover the purchase price. So that he did not have the right to have both causes of action submitted to the jury."

In the present case, however, there is no such radical inconsistency or repugnancy between the causes of action set forth. They are, rather, so far as can be judged from the pleadings alone, statements of different, but closely kindred, theories of recovering the same amount on the same transaction. The present application, in my opinion, falls within the rule followed in such cases as Velie v. Newark C. Ins. Co., 65 How. Prac. 1; Longprey v. Yates, 31 Hun, 432; Blank v. Hartshorn, 37 Hun, 101; and Seymour v. Warren, 71 App. Div. 421, 75 N. Y. Supp. 903. The fundamental facts on which the three theories set forth in the complaint are based are the same, namely, the ownership by the plaintiffs of the goods in question, the acquisition of the same by the defendant, and the right in the plaintiffs to recover therefor, whether it be an agreed price on the theory of an express contract, or the reasonable value on the theory of an implied contract; whether such an implication be based upon facts that would not in any event constitute a tort, or on facts that would, if the plaintiffs so elected, constitute a tort, but which they may treat at their option as constituting an implied contract. It may possibly be that upon the trial matters will take such form that it would be unjust to the defendant to allow all three grounds of recovery to be submitted to the jury; but, so far as can be seen from the complaint alone, there will be no such injustice.

and 129 New York State Reporter

On the contrary, the hardship or injustice to be apprehended would be that the plaintiffs, by being compelled to elect at this stage of the action, might meet defeat at the trial because of their inability to accurately anticipate the contingencies of the trial and what they and the defendant would be able to establish, or what construction might be put by the court or the jury upon the evidence. As was said in Murray v. N. Y. Life Ins. Co., 96 N. Y. 614, 622, 48 Am. Rep. 658:

"It is not necessary that a jury, in order to find a verdict, should concur in a single view of the transaction disclosed by the evidence. If the conclusion may be justified upon either of two interpretations of the evidence, the verdict cannot be impeached by showing that a part of the jury proceeded upon one interpretation and a part upon the other."

The plaintiffs' right to recover may well, and probably does, depend, in part at least, on acts of the defendant of which they neither have nor can obtain at this time any sufficient and reliable information. It is obvious, therefore, that to compel them to make an election now would place them at a disadvantage and give the defendant an unfair advantage in preparing and presenting the evidence at the trial.

The motion should be denied, with $10 costs.

(107 App. Div. 529.)

UNION BAG & PAPER CO. v. ALLEN BROS. CO. et al. (Supreme Court, Appellate Division, Third Department. September 13, 1905.) 1. WATERS AND WATER COURSES-GRANTS AND RESERVATIONS OF EASEMENTS. An owner built a dam and dug a flume through his land. Thereafter he divided the land into lots, and made separate conveyances thereof from time to time, giving the grantees rights to use the water in the flume in designated quantities, subject to reservations in favor of the owner. Held, that the water rights granted and reserved were easements connected with the ownership of the land, and when all the lots were conveyed no water rights remained in the owner, though the amount of water in the flume exceeded the quantity conveyed by the deed; it being the intention of the owner to convey to the grantees all the water in the flume.

2. SAME RIGHTS TO USE WATERS IN A FLUME-EXTENT OF USE.

Where a grantee of a lot, in a deed conveying it, together with the right to use a designated quantity of water in a flume passing through the lot, and his predecessors, possessing the same right, had for over 20 years openly drawn and used, under a claim of right, water in excess of the quantity fixed in the deeds without objection from any one, and they had, in reliance on the right to use such quantity, improved their lot at large expense, the court properly found that the grantee was entitled to use such quantity.

3. EQUITY-RELIEF.

Equity gives relief adapted to the situation at the time of entering its decree, and the refusal to modify a decree so as to make it speak as of the commencement of the suit is properly refused.

Smith and Houghton, JJ., dissenting.

Appeal from Judgment on Report of Referee.

Action by the Union Bag & Paper Company against the Allen Bros. Company and others. From a judgment determining the

rights of defendants to water in a raceway, and from the judgment as amended by order of the court and re-entered, and from so much of an order as denied a motion for an amendment of the judgment, plaintiff appeals. Affirmed.

See 88 N. Y. Supp. 368.

This action is brought to define the rights of the parties in a certain raceway or flume, and the water therein, which raceway or flume leads water from a dam in the Hudson river at Sandy Hill, N. Y., to and over the lands of the defendant Allen Bros. Company (hereinafter called the defendant), and to and over the lands of the plaintiff; and the plaintiff seeks to enjoin the defendant from taking any water from said raceway or flume, in excess of an amount that can be taken through orifices in said raceway or flume, aggregating 270 and 350 square inches, respectively. The judgment provides that the defendant "has the right, prior to any right of the plaintiff, to draw from the said flume, at its present width and depth and use, as hereinabove declared, 620/1915, or nearly one-third, of the flow of water in said flume at a depth of water therein of nine feet at least, before lowering by discharge or use, but at such less depth as such discharge or use may cause, except that the plaintiff has concurrent right to draw and use therefrom 120/1915 of the entire flow under the like head of nine feet before lowering by discharge or use, but next after the defendant Allen Bros. Company's right to use 270/620 of its portion." The judgment also provides in substance that the plaintiff is entitled to the balance of the water from said flume.

Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ.

Simpson, Thacher & Bartlett (Alfred B. Thacher, of counsel), for appellant.

Hand & Hale (Richard Lockhart Hand and Edgar T. Brackett, of counsel), for defendant Allen Bros. Co.

CHASE, J. Baker's Falls are rapids in the Hudson river at Sandy Hill, N. Y. They extend a distance of about 1,000 feet, and in such distance the fall is about 60 feet. The Hudson river at that point is the line between the counties of Washington and Saratoga, and the lands and flume in question are in Washington county. In 1843 Perry & Harvey were the owners of the real property adjoining said river at Baker's Falls in Washington county, and for a short distance north and south of the same, together with such water rights as were appurtenant to the ownership of such real property. The lands so owned by Perry & Harvey included all of the lands now owned by the defendant and all of the lands owned by the plaintiff which are shown in the diagram herewith. At that time there was an old mill on lot 5, and a flume extended from a wing dam a little north of the crest of the falls to such old mill; but the mill and flume were not in use, and were in a dilapidated condition. There is now a dam across said river, commencing on the east side where said old wing dam was formerly situated, and it extends in a northwesterly direction to the Saratoga county side of the river. The plaintiff is the owner of the flume and the land on which the same is built, from said dam southerly about 130 feet. Over the river side of that part of said flume is a spillway. From the southerly end of said spillway the defendant owns the lands along the river southerly about 287 feet, and adjoining the defendant's lands on the