Desmond-Dunne Co. v. Friedman-Doscher Co.

• Citation: 56 N.E. 995,162 N.Y. 486
• Parties: DESMOND-DUNNE CO. v. FRIEDMAN-DOSCHER CO.
• Decision Date: 17 April 1900
• Court: New York Court of Appeals

162 N.Y. 486

56 N.E. 995

DESMOND-DUNNE CO.

v.FRIEDMAN-DOSCHER CO.

Court of Appeals of New York.

April 17, 1900.

Appeal from supreme court, appellate division, Second department.

Action by the Desmond-Dunne Company against the Friedman-Doscher Company on notice. From a judgment of the appellate division (45 N. Y. Supp. 111) affirming a judgment in favor of plaintiff, defendant appeals. Affirmed.

Martin and Vann, JJ., dissenting.

John T. Canavan, for appellant.

Jesse W. Johnson, for respondent.

BARTLETT, J.

This action is brought to recover on three promissory notes for $333.33 each. A separate suit was brought on each note. One note was due May 1, the next June 1, and the last July 1, 1896. The defendant is a dealer in soap, and the plaintiff is engaged in the business of displaying signs on the Brooklyn Elevated Railway system, its cars, platforms, and entrances. These three suits were consolidated and tried as one. The notes were given in payment on the contract for certain advertising to be done in a particular manner and at stated places. The defendant alleged that the plaintiff had not complied with the terms of the contract, and claimed to be entirely relieved from the payment of the notes. It is stated by the appellant's counsel that this was a unanimous decision of the appellate division. The judgment does not show that to be the fact, and the order of the appellate division is not in the record. It appears in evidence that the number of signs called for by this contract was between 1,400 and 1,500, and the contest is confined to some 20 triangular signs that were about 8 feet in length and 2 feet wide in the center, to be placed on canopies in both of the galleries leading to and from the bridge stations to the New York and Brooklyn Bridge, 10 signs to be placed in each gallery. It was proved that, after the contract was made, the company decided to build new terminals connecting the road with the Brooklyn Bridge, and the old galleries were torn down, remained in that condition some three or four weeks, and afterwards rebuilt on new plans. Under the original contract the signs were to remain up for six months from October 1, 1895, and a new memorandum was executed conforming the contract to the changed conditions, and agreeing that the signs should remain up for six months from the completion of the stations. According to the plaintiff's proof, these 20 signs were put up in the temporary gallaries and on what is known as the ‘Brighton Beach Terminal,’ and when the new work was completed 10 signs were placed in each of the new galleries as required. On all the material points in this case there is a sharp conflictin the evidence, and, the jury having found for the plaintiff, it is to be assumed that they believed the story of its witnesses. Under that state of facts and the charge of the learned court, the jury must be regarded as having found a substantial performance of the contract.

Several exceptions were taken to the charge of the court to the jury. The first is involved in this statement: ‘Gentlemen: You will determine from all the evidence in the case whether or not there is any substance in this defense, or whether it is a sham defense.’ When the court's attention was called to this, he said: ‘I withdraw that. I submitted the question whether it is a real, good, substantial defense or whether it was sham.’ Defendant's counsel claims that this does not amount to a withdrawal, but was practically a restatement of the objectionable charge. We are inclined to think that it may be treated as a withdrawal, and the statement of the court following the declaration ‘I withdraw that’ was merely explanatory of what he intended in his original charge. The next exception is based upon the statement to the jury, in substance, that they must consider all the facts in this case, many of which were enumerated by the judge, and determine whether the...