Supreme Court, Appellate Term, February, 1896. [Vol. 16. he was perfectly satisfied with the work of the governor, and that the company was not notified to take it away. On the other hand, the defendant Samuel G. Bayne testified that he never expressed himself satisfied with the governor; that it impaired the quality of the light, which was not as good after the governor was put on as it had been previously; in short, he contended that the only effect of the governor was to check the pressure of the gas, and that any saving accomplished resulted from the want of that quantity and brilliancy of light which he had theretofore enjoyed. The plaintiff was never officially notified of any imperfection in the governor, or called upon to take it away, and so far as the return discloses it is still in use by the defendants. The action, though nominally brought against Mr. Bayne and his wife, was treated throughout as a litigation against him alone; he was the only one served with process, and judgment was not entered against her. No motion was made to dismiss the action. against the wife, and she was practically regarded as being out of the case, so that there is nothing to review as against her. The issue narrowed itself down to a question of fact, which the justice decided upon conflicting evidence; and, while we might have reached a different conclusion, it does not follow that the justice erred. The judgment must, therefore, be affirmed, with costs. BISCHOFF, J., concurs. Judgment affirmed, with costs. JAMES LAIRD, Respondent, v. CHARLES D. McGEORGE, Appellant. (Supreme Court, Appellate Term, February, 1896.) Landlord and tenant - Liability of landlord for failure to repair. In the absence of an agreement by a landlord to repair, he is not answerable to the tenant for damage resulting to the latter from a want of necessary repairs. APPEAL from a judgment of the District Court in the city of New York for the First Judicial District, in favor of the plaintiff. Action for rent. Counterclaim for damages alleged to have resulted from the failure of the plaintiff's assignor to make repairs. Misc.] Supreme Court, Appellate Term, February, 1896. Phillips & Avery, for respondent. Charles C. Suffren, fer appellant. BISCHOFF, J. The action was for rent and the defense went to the duties of the landlord to repair, involving a counterclaim for repairs made by the tenant, and for damages sustained by reason of the condition of the roof of the premises. Whether, or not, there had been an agreement that the premises should be maintained by the landlord in a tenantable condition was primarily the issue, and though a paper writing had been subscribed by the landlord to the effect that the premises should be tenantable, and kept so, it was also in evidence, without objection, that this was not actually the agreement, and that the parties had come to an understanding that the premises should be accepted in their condition as found, except as to certain matters not now brought into controversy. It was explained by the landlord that the paper alluded to had been signed hurriedly by reason of the tenant's haste, and that it was mutually apprehended to be merely a receipt for a payment made by the tenant at the time. The justice below was satisfied with this explanation and with the parol evidence of the actual agreement, and upon the record we do not find reason to hold that the conclusion in favor of the landlord was unauthorized, since that conclusion could properly be reached upon evidence which, although not of the character required by law, was to be considered as properly in the case through the failure of the opposing party to call for its exclusion. Crane v. Powell, 139 N. Y. 384. In the absence of an agreement by the landlord to repair, he is not answerable to the tenant for damage resulting to the latter from a want of necessary repairs. Doupe v. Genin, 45 N. Y. 119, 122. Judgment affirmed, with costs. DALY, P. J., and MCADAM, J., concur. Supreme Court, Appellate Term, February, 1896. [Vol. 10. BEADLESTON & WOERZ, Respondent, v. HENRY MORTON et al., Appellants. (Supreme Court, Appellate Term, February, 1896.) Landlord and tenant — Taking possession of mortgaged chattels no defense to action for rent. Upon the purchase of a saloon, defendants assumed payment of a chattel mortgage on the lease and fixtures, given by their vendor to plaintiff, and assumed payment of rent under the lease for which it was given as security. They subsequently sold to another, to whom they gave possession, and upon an attempted removal of the fixtures by the latter the plaintiff took possession thereof. Held, that as such possession was taken for the purpose of protecting the mortgage security from conversion, and without any intention of immediate foreclosure, it did not operate as an accord and satisfaction of the mortgage debt and furnished no defense to an action for rent. APPEAL by defendants from judgment rendered in the Third Judicial District Court. Hays & Greenbaum, for appellants. Guggenheimer, Untermyer & Marshall, for respondent. MCADAM, J. The defendants purchased the saloon No. 9 Mur ray street, on which there was a chattel mortgage held by plaintiff, a domestic corporation. The mortgage was made by the former proprietor, Gertrude A. Fox, for the sum of $6,750, and covered the lease, goods, chattels and fixtures of the place. The plaintiff entered into a written agreement with the defendants by which certain clauses in the mortgage were modified and the time of payment extended, and the defendants assumed the mortgage to the extent of $2,400. By the third paragraph of said agreement defendants promised to promptly pay on the first day of each month in advance all rent to accrue under a certain indenture of lease made by the plaintiff to said Gertrude A. Fox, of which the defendants were the assignees, and agreed that if default should be made in the payment of such rent it should be the privilege of the plaintiff, at its option, to immediately demand payment of said mortgage, and in default thereof foreclose the same. Thus, the defendants were more than guarantors; Misc.] Supreme Court, Appellate Term, February, 1896. they assumed the debt, made it their own, and unconditionally agreed to discharge it. The first installment of rent became due May 1, 1895, and the second on the following June 1, and neither was paid. The answer was a mere general denial, and there was no plea of payment or of accord and satisfaction, and no evidence that would have justified either. Some time in June the defendants gave up possession of the premises without notice to the plaintiff. It then appeared that they had sold out to another party. About a week or ten days after defendants' vendee went into possession he moved out and attempted to take with him part or all of the property and fixtures mortgaged to the plaintiff. The plaintiff thereupon sent Mr. Pottberg down to the place for the purpose of restraining defendants' assignee from taking the property on which it held the mortgage; Mr. Obermeier, one of the defendants, was also present, and picked out goods belonging to them. After the removal of defendants' vendee the mortgaged property was left in the building and the place closed up. Appellants claim that the effect of taking possession of the property is to satisfy the plaintiff's debt or to suspend all remedies thereon until the property is sold by foreclosure, the equity of redemption extinguished, and the amount of deficiency ascertained, and that for such deficiency, and no other, the defendants are liable. The appellants cite Olcott v. R. R. Co., 40 Barb. 179; 27 N. Y. 546; but there the property had been sold, bought in by the mortgagee, and the proceeds of sale credited on the mortgage debt. No sale has been had here, and there is no evidence that the value of the chattels equals or exceeds the debt, or would be likely to satisfy it if a sale were had. The respondent, on the other hand, contends that in taking possession of the mortgaged property upon the attempted conversion of it by the defendants' assignee, the plaintiff was merely exercising its rights to protect the mortgage security, and that such possession did not in any way operate as an accord and satisfaction of the debt. The case is somewhat similar to Lathers v. Hunt, 16 Daly, 135. There the mortgaged chattels consisted of furniture mortgaged to secure rent due upon the premises. The mortgagor abandoned the property and the plaintiff assumed possession of it, and while thus in possession brought his action to recover froin Supreme Court, Appellate Term, February, 1896. [Vol. 16. the defendant the amount of arrears of rent to secure the payment of which the mortgage was given. Upon the trial defendant contended that the possession of the mortgaged chattels by the mortgagee operated as a satisfaction of the mortgage debt. The trial justice sustained the contention, and rendered judgment in favor of the defendant; from which an appeal was taken, and the decision of the court below reversed upon the ground that the action was maintainable. The plaintiff in this action, as in Lathers v. Hunt, supra, took possession of the chattels for the purpose of protecting them, rather than in the exercise of any option of foreclosing. The promise made by the defendants being an unconditional one to pay $2,400 in monthly installments of $100 each, we think the justice properly rendered judgment in favor of the plaintiff. Whatever sums the defendants pay will go in mitigation of the debt they assumed; and, when the plaintiff exercises its option of foreclosure, reduce the deficiency, if there be one, or increase the surplus, if any, arising from the sale. The mortgaged property being saloon fixtures of precarious value, the plaintiff is probably awaiting a favorable opportunity before attempting a sale, at which the property may be sacrificed. The judgment must, therefore, be affirmed, with costs. BISCHOFF, J., concurs. Judgment affirmed, with costs. GAETANO DELISE et al., Respondents, v. JOSEPH PALLADINO, Appellant. (Supreme Court, Appellate Term, February, 1896.) Partnership - Parties. One who is not a member of the firm, but is entitled only to a share in the profits for his services, is not a necessary party to an action brought by the firm, and no assignment from him is necessary to enable the firm to maintain the action. APPEAL by defendant from judgment of the First District Court. Louis Hess, for appellant. D. Humphrey, for respondents. |