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client, the defendant trustee. At his behest, presumably, he has opposed the application of these appellants to be made parties. With the manifest distrust and lack of unity existing between the trustee and appellants it will be difficult, if not impossible, for one attorney, however conscientious and painstaking, to serve both with satisfaction. Under such circumstances it seems to us that it not only is not unjust to respondents, but it is the natural and practical solution, to allow that portion of the order which is not questioned by anybody to stand, after we have cut out the obnoxious condition which was appealed from. This will allow these appellants in their own way, and through their own attorney, to present to the court their views upon the matters which they correctly or incorrectly conceive to be involved in this litigation. And we feel assured that in the end it cannot be otherwise than satisfactory in the highest degree to the defendant trustee to have this done, rather than that residents and taxpayers in the school district which he represents should feel distrustful of and dissatisfied with the results which might flow from his sole management of this litigation.
If we are correct in the foregoing views, it is unnecessary to consider or lay down as universal the principle that when, upon an appeal by one party, an order has been modified by striking out some portion thereof, it should, as so modified, be affirmed, and allowed to stand as against the party who has not appealed. It very well might be in some case that the provision reversed or cut out would be so connected with or would so modify the remainder of the order that it would be impossible, or manifestly unjust, to reverse in part and affirm in part. It is sufficient to say that, in our judgment, this case does not present either of these conditions. The relief sought by the original motion is completely covered by and comprehended within the portions of the order not appealed from. The other portion containing the condition is distinct and entire, and may be reversed without in any manner impairing the completeness of the main provision. The only question in this connection relates to the propriety and justice of so doing, and the application of the facts before us to the solution of that leads us to the conclusion already indicated.
Finally, it may be said that the appearance of appellants by separate counsel will subject the plaintiff to double trouble and liability for costs in case of failure. It is to be again noted that she intrusted the opposition upon the original motion to defendant alone, making none herself. In our opinion, she will be protected from any unreasonable burdens incident to the intervention of these new parties by the imposition of the condition that, in the event of success, they shall not have costs against her.
We therefore conclude that that portion of the order appealed from should be reversed, and the condition thereby imposed removed, and that the order as thus modified should be affirmed, with $10 costs and disbursements to appellants, upon condition that they execute a written stipulation not to tax costs against plaintiff. In case of their failure to make such stipulation, the entire order is reversed, without
Order reversed as to provision appealed from requiring appellants, as a condition of intervening, to employ the attorney specified by the court, with $10 costs and disbursements to appellants, provided they stipulate in writing not to tax a separate bill of costs against the plaintiff in event of their success in the action. In case of failure to execute said stipulation, the entire order is reversed, without costs to either party. All concur, except MCLENNAN, P. J., who dissents in opinion, in which STOVER, J., concurs.
MCLENNAN, P. J. (dissenting). The appellants made a motion to be made parties defendant in the action, under section 452 of the Code of Civil Procedure, upon the ground that they were the owners of real property within the school district of which the defendant Hendrick is sole trustee, which property would be affected in case judgment was recovered by the plaintiff; and the appellants allege in the moving papers that the plaintiff and the defendant trustee were acting collusively, and therefore that the trustee in the conduct of the action would not properly and in good faith protect the interests of the appellants. The respondents opposed the motion, and insisted that the court had no power to grant the relief asked for. We think their contention is correct, and that the court was without authority of law to grant the relief asked for. Christman v. Thatcher, 48 Hun, 446, I N. Y. Supp. 451, and cases cited. The court, however, granted the motion, and directed that the appellants be made parties defendant in the action, but only upon condition that they employ a certain attorney named in the order to conduct the litigation for them, who, at the time, was the attorney for the defendant trustee. While in no manner conceding the power or authority of the court to permit the appellants to be made parties to the action, with the condition imposed, the respondents were satisfied with the order as a whole, considered that its effect would be harmless, and therefore did not appeal therefrom. The appellants appeal from so much of the order as imposed the condition. We think it clear that the part of the order so appealed from was erroneous. The court has no power to compel a party to an action to employ any particular attorney to conduct such action for him. Jemmison v. Kennedy, 55 Hun, 47, 7 N. Y. Supp. 296; Tenney v. Berger, 93 N. Y. 524, 45 Am. Rep. 263. The order appealed from consists of two provisions, both of which were made without authority of law, and any party aggrieved by either should have the opportunity to relieve himself therefrom. With the two provisions standing together, the respondents did not consider. that their rights were prejudiced, and for that reason did not appeal, and did not attempt to have the first provision, although illegal, reversed, because, as we have seen, when taken in connection with the condition or the second provision of the order, it was not thought to be harmful. But it is suggested that, the condition of the order, having been appealed from, must be reversed, because made without authority, but that the first provision, although also made without authority, should be permitted to stand, because no appeal has been taken therefrom, and which would only become harmful or prejudicial to the rights of the original parties to the action by striking out the
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conditions imposed. It seems to me that such a disposition of the appeal is not fair or equitable, and is not justified by any recognized rules of practice. The order as made was erroneous in all its parts, but by reason of the condition imposed the respondents regarded it as harmless, and were satisfied with it as a whole. With the condition stricken out, it will not be satisfactory to them, and will become extremely prejudicial to their interests; and this result should not follow solely because the respondents failed to appeal from an order which, as a whole, was satisfactory to them. They were not bound to anticipate that this court would strike out of the order one provision which was illegal, but which rendered the other provision, which was equally illegal, harmless, simply because the first provision was not appealed from, and in that manner, and solely for that reason, seriously prejudice their rights and interests. This should not be done unless it is to be regarded as the settled practice that an order which contains a condition, no matter how satisfactory it may be as a whole, and, with that condition in, must be appealed from by the party thus satisfied with it in order to protect himself against the danger of having the condition which rendered the order unobjectionable stricken out by the appellate court, but leaving a single provision, although made without authority of law, and which is prejudicial, in full force and effect.
It seems to me that, as each and every part of the order appealed from is erroneous, and made without authority of law, it should be reversed as a whole, with $10 costs and disbursements, and that the motion should be denied, with $10 costs.
STOVER, J., concurs in dissent.
DAVIS V. KIDANSKY et al.
(Supreme Court, Appellate Term. January 7, 1904.) ·
1. BROKERS-SALES OF REAL ESTATE-WRITTEN AUTHORITY FROM OWNERWHEN NECESSARY-ACTIONS FOR COMMISSIONS.
Under Laws 1901, p. 312, c. 128, § 640d, providing that in cities of the first and second classes any person offering for sale real estate without written authority from the owner, etc., shall be guilty of a misdemeanor, a defense in an action to recover commissions for the sale of real estate that the services were performed in a city of the first class, and that plaintiff had no written authority from the owner of the property, etc., held valid and effective.
Appeal from City Court of New York, Trial Term.
Action by Jacob Davis against David Kidansky and another. From an interlocutory judgment sustaining a demurrer to a separate defense in the answer, defendants appeal. Reversed, and judgment directed for defendants on issue of law raised by the demurrer.
Argued before FREEDMAN, P. J., and GILDERSLEEVE and GREENBAUM, JJ.
11. See Brokers, vol. 8, Cent. Dig. § 44.
Bowers & Sands, for appellants.
GILDERSLEEVE, J. The complaint sets forth a cause of action for broker's commissions claimed to have been earned by plaintiff in having procured a purchaser for defendants' real estate. The answer sets up as a separate defense that plaintiff had no written authority to offer the real estate for sale from the owners of the property or their attorney in fact, appointed in writing, or the person who had made a written contract for the purchase of the said property with the owners thereof. The said defense also alleged that the services of plaintiff in offering the property for sale and negotiating for such sale, as claimed in the complaint, were performed in the city of New York, and that New York is a city of the first class. The plaintiff demurred to this separate defense, and the demurrer was sustained. Defendants appeal. The ground of the demurrer is that the allegations of said separate defense are insufficient in law on the face thereof.
Section 640d, c. 128, p. 312, Laws 1901, provides as follows, viz.: "In cities of the first and second class, any person who shall offer for sale any real estate without the written authority of the owner of such property, or of his attorney in fact, appointed in writing, or of a person who has made a written contract for the purchase of such property with the owner thereof, shall be guilty of a misdemeanor."
The demurrer admits the truth of the allegations of the defense, and therefore, for the purposes of this appeal, we must conclude that plaintiff, in performing the services upon which he bases his complaint, was guilty of a misdemeanor. As one cannot recover compensation for doing an unlawful act, the defense set up in the answer was valid and effective.
The interlocutory judgment must be reversed, with costs, and the defendants have judgment on the issue of law raised by the demurrer, with costs. All concur.
JOHANNING v. WILSON et al.
(Supreme Court, Appellate Term. January 7, 1904.)
1. PARTNERSHIP-DISSOLUTION-LIABILITY OF MEMBERS.
An employé of a firm had knowledge of the existence of the partnership from an inspection of the written articles, and thereafter, during his employment, and without his knowledge, the firm was dissolved. Held, that a note purporting to be a partnership obligation executed by one of the partners after the dissolution, but during the employment, was binding on all the members of the former firm.
2. SAME-FRAUDULENT ORGANIZATION.
In an action against members of a former firm on a firm obligation, defendants cannot set up the fraudulent organization of the partnership as a defense.
Appeal from Municipal Court, Borough of Manhattan, Twelfth District.
Action by Charles F. W. Johanning against John C. Wilson, Jr., and others. From a judgment for plaintiff, defendants appeal. Affirmed.
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Argued before FREEDMAN, P. J., and GILDERSLEEVE and GREENBAUM, JJ.
Job E. Hedges (Louis Frankel, of counsel), for appellant.
GREENBAUM, J. The nature of this action, and the circumstances out of which it arose, are set forth in the opinion of this court on a previous appeal, heard at the last April term, when a judgment in favor of the defendants was reversed.
The facts as testified to by plaintiff's witnesses show that the note in suit was given to Thornton, the original payee, for services rendered; that on April 29, 1902, while engaged in these services, the copartnership of defendants was in actual existence; that Thornton had diret knowledge of the fact from an inspection of the written articles of copartnership given to him for use in connection with his employment; that although the copartnership was in fact dissolved on May 2, 1902, Thornton continued to render the services in procuring a theatrical license for the copartnership firm; that he had no notice of the dissolution while so engaged; and that the note in suit, which purported to be a partnership note, was executed and delivered to him during the period of time when such services were being rendered. Defendants contradicted plaintiff's witness Thornton in many essential respects, but this court, in considering the legal question here submitted, must accept the facts as testified to by plaintiff's witness. "It is the general rule that, after the dissolution of a partnership, neither of the parties can give notes or accept bills so as to bind the other partners, even when it is done for the purpose of providing for a debt due from the former firm. * * * There is no doubt that where the business is continued by one partner in the firm name after the dissolution of the firm, or debts are contracted by him with persons who had previous dealings with the firm, all the members of the former firm are liable, in the absence of notice of such dissolution." Morrison v. Perry, 11 Hun, 33. As the facts in this case show that Thornton had dealings with the firm during its existence, and continued them after the dissolution, without notice of the latter fact, the defendants are liable upon said note.
Nor can the defendants be heard to say that their partnership was fraudulently concocted, and the plaintiff participated in the fraud, because the finding of the court below must be held to have exonerated Thornton, and defendants cannot now be heard to set up their own fraud as a defense to the note.
Judgment affirmed, with costs. All concur.