Milbank v. Jones
| Decision Date | 27 February 1894 |
| Citation | 141 N.Y. 340,36 N.E. 388 |
| Parties | MILBANK v. JONES. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from superior court of New York city, general term.
Action by Robert W. Milbank, for whom was substituted Antoinette L. Milbank, for herself and as administratrix, against Morgan Jones, for moneys held by said Jones in trust for plaintiff. From a judgment of the general term (22 N. Y. Supp. 525) affirming a judgment of the special term for plaintiff, defendant appeals. Reversed.
For reports on former appeal, see 5 N. Y. Supp. 914; 28 N. E. 31. See, also, 17 N. Y. Supp. 464; 24 N. Y. Supp. 356.
Joseph Fettretch, for appellant.
Ira Shafer and Wm. H. Hamilton, for respondent.
This action was originally brought by the plaintiff's husband, who having died after the first trial, his widow, the present party plaintiff upon the record, was substituted in his place. On the first trial there was a verdict for the defendant, but the judgment was reversed by the second division of this court. 127 N. Y. 370, 28 N. E. 31. On the second trial the court directed a verdict for the plaintiff, and the judgment entered thereon has been affirmed at the general term.
In the disposition of this appeal it is only necessary to examine certain exceptions taken by the defendant at the trial to the exclusion of evidence. The cause of action stated in the complaint is that some time in the month of June, 1866, the defendant, as trustee for the plaintiff, received the sum of $5,000 in cash, which he has ever since continued to hold in trust for the plaintiff; that, by the terms of the trust under which the money was received, it was expressly provided, and the money was received upon the condition, that the trust might be terminated by the plaintiff, at his election, on or after July 10, 1866; that in February, 1886, the plaintiff notified the defendant of his election to terminate the trust, and demanded payment to him of the money, but the defendant neglected and refused to pay the same. The only defense interposed was a general denial. At the trial the plaintiff, in order to prove the allegations of his complaint, gave in evidence a resolution of the common counsel of the city of New York, authorizing and directing the street commissioner to make a contract for lighting the streets and public places with coal gas, the contract to be founded upon sealed bids and proposals, and to be made with the company giving adequate security, to be approved by the comptroller in the manner provided by law, which shall agree to do the same for the lowest price for each lamp or light per annum, or quantity, when it can be measured according to existing regulations, and affording to such company sufficient time to lay their mains and introduce gas, as required by the contract. The resolution also contained some provisions as to the form of the contract, and repealed all ordinances or resolutions inconsistent with its provisions. There was attached to this resolution, and offered in evidence with it, a paper of which the following is a copy:
‘New York, June 14, 1866.
‘Received of R. W. Milbank five thousand dollars, ($5,000,) and also certificate for two hundred and fifty (250) shares of the stock of the People's Gaslight Company of the city of New York, number seven, (7,) the said money and stock to be returned to said Milbank in case the resolution above shall not be passed and take effect before the 10th of July next; it being understood and agreed that said Milbank shall have the right at his election, in case said resolution shall pass and take effect before the said 10th of July, to purchase back the said stock at any time within sixty (60) days from the time said resolution shall take effect, by paying to me fifteen thousand dollars ($15,000) therefor; and that he shall, on his part, be bound to purchase the same, and pay said fifteen thousand dollars ($15,000) therefor, within said sixty (60) days, at my election.
‘Morgan Jones.
‘I assent to, and join in, the above understanding and agreement.
‘New York, June 14th, 1866. R. W. Milbank.’
The defendant's counsel objected to this evidence upon the ground, among others, that it was incompetent, and not within the issues made by the pleadings. The court overruled the objection, and the defendant's counsel excepted. The plaintiff then proved, by other documentary evidence, that this resolution was vetoed by the mayor, and on the 10th day of July, 1866, was passed, notwithstanding the veto, and went into effect on that day. This was all introduced under the defendant's objection and exception, and the plaintiff, having given this proof, rested. The defendant's counsel moved to strike out this evidence upon the grounds, among others, that it did not correspond with the allegations of the complaint, or tend to prove the cause of action alleged, but a different cause of action, and upon the same ground to dismiss the complaint. These several motions were all denied, and the defendant excepted. The defendant then offered to prove that after the veto he had a conversation with the plaintiff, who had signed the contract, in which, in substance, he stated to him that he would have to give back the money, as he could not procure the resolution to be passed within the time, to which the plaintiff, in substance, replied that he would not exact performance at the precise day; and further that, when the resolution was finally passed, the plaintiff called upon the defendant, and furnished him with a certified copy of the resolution, and he accepted it as performance. This evidence was objected to by the plaintiff on the ground, among others, that it was not admissible under the pleading, which objection was sustained by the court, and the defendant excepted.
The questions involved in the appeal arise upon these...
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...claim of substantial performance. Clark v. Ford, 106 N.Y.S. 462; Griffin v. Long Island R. Co. 101 N.Y. 348, 4 N.E. 740; Milbank v. Jones, 141 N.Y. 340, 36 N.E. 388. The fact that the defendant in addition to a general denial specifically pleads nonperformance in some particulars does not a......
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