Simon v. Burgess

Laughlin, J.:

This is a suit in equity to have it adjudged that the plaintiff has a lien upon certain real' property in the borough of Manhattan, New York, described in a letter written by William H. Burgess to Messrs. Rose & Putzel, a firm of attorneys and counselors at law, on the 15th day of July, 1903, for the sum of $25,000, and that in default of payment of said sum to her, with interest, the premises be sold, and that the proceeds, over and above the sum of $690,000, be applied, so far as necessary, in satisfaction of her lien, and in the event that a ‘ sale cannot be had that the executors of Burgess be adjudged and decreed to pay the plaintiff the said sum of $25,000, with interest; and a conveyance of the premises by Burgess to his wife alleged to have been made without consideration is sought to be set aside. The only basis for the plaintiff’s claim is an assignment of the rights of Ferdinand ■ H. Mela under and by virtue of said letter, which is as follows:

“New York, July 15th, 1903.

“Rose & Putzel:

“ Gentlemen.— If you will procure a general release executed by. Ferdinand H. Mela of any and every claim that he may allege he has against me, I will agree to pay to you for his account, whatever "sum I may realize on the sale of the Coronet, 58th Street and 6th Avenne, over and above $690,000, but only to the extent, however, of $25,000, so that in no event shall he receive from me more than $25,000. In speaking of $690,000, I include the present mortgages of all kinds affecting the property. This is intended to bind me and my executors.

“ Very truly yours,

“ WILLIAM H. BURGESS. ”

It appears that Messrs. Rose & Putzel, pursuant to the suggestion contained in said letter, did obtain from Mela a general release to Burgess which they retained in their possession, but it does not appear that the same was ever actually delivered to him by them, or that he knew that it had been obtained. The theory upon which the action was brought is that Messrs. Rose & Putzel were the attorneys and agents for Burgess in procuring the release, and that the execution and delivery of the release to them by Mela constituted a delivery to Burgess, and that Mela thereupon acquired an interest in and lien upon the real estate, and that it became the duty of Burgess to sell the same within a reasonable time and to pay Mela such part, if any, of the. proceeds of the sale as under the terms of the contract would be due to him. Without expressing an opinion as to whether plaintiff has any cause of action upon which she may have another remedy, we are of opinion that her assignor acquired no lien upon or interest in the real estate, and that, therefore, this action cannot be maintained.

The complaint is framed in equity and the plaintiff insisted upon trying the case as one in equity, for the adult deféndants pleaded that the plaintiff had an adequate remedy at law and was not entitled to equitable relief, and at the commencement of the trial counsel for the defendants moved for a dismissal of the complaint upon the ground, among others, “ that the plaintiff’s remedy, if any, is at law and not in equity; that she does not show any right to equitable relief,” and counsel for the plaintiff acquiesced in the denial of the motion without making any claim that she would be entitled to recover herein on the theory that her cause of action is at law, or requesting that the cause be transferred to the jury calendar; and at the close of the plaintiff’s case counsel for the defendants renewed the motion to dismiss on the same ground and rested his case without , putting in any evidence. The court took the motion under advisement and later on filed an opinion (71 Misc. Rep. 300), placing the dismissal of the complaint solely on the ground, that the plaintiff was not entitled to equitable relief. In these circumstances, we are of opinion that it is too late now for the appellant to contend that she was entitled to recover upon the theory that she alleged and proved a cause of action at law. If that rule were to prevail, then the plaintiff .would be entitled to two trials. She would first have a. trial at Special Term, on insisting that her suit was in equity, and in the event that the court, should, after taking all of the evidence, decide against her on that proposition, she could insist upon having the cause sent to the jury trial term. This we do not understand to be the law, where the complaint is framed in equity and an objection has been duly and timely taken that the plaintiff has an adequate remedy at law and he insists upon trying his cause as one in equity. (Porter v. International Bridge Co., 79 App. Div. 358; affd., 175 N. Y. 467; Loeb v. Supreme Lodge, Royal Arcanum, 198 id. 180.)

In Thomas v. Schumacher (17 App. Div. 441; affd. on.opinion of Mr. Justice Ingraham, 163 N. Y. 554) the objection to a trial at the Special Term on the ground of want of equity and adequacy of a remedy at law,' does .not appear to have been taken.

We agree with the learned trial justice that the letter from Burgess to Rose & Putzel did not create1 a trust in the real estate in favor of the plaintiff’s assignor, or confer upon him any interest in or hen on the same. If, as claimed, it was the duty of Burgess to sell the premises within a reasonable time, and had he done so he would have realized sufficient therefor to pay the plaintiff $25,000, or some part thereof, under the agreement contained in the letter,- then at the expiration of such reasonable time the plaintiff coul'd have maintained an action at law to recover the $25,000, or such part thereof i as she could show the premises would have brought over and above the $690,000 at. such a sale. , She alleges that they would at any time after the release wa.s procured have sold for considerably more than sufficient to have entitled her to the maximum amount. The case is distinguishable from Jones v. Kent (80 N. Y. 585), upon the ground that there the agreement to pay was “ one-half of whatever price ” the property brought on a sale thereof, over and above the sum specified; and under that agreement a sale was essential to a determination of the amount, if any, to which the plaintiff was entitled, for the agreement was to pay one-half the amount realized on a sale, over and above a specified sum. In that case, the court held that the plaintiff was entitled to have the property sold for the reason that a sale was necessary in order to determine the amount to which the plaintiff was entitled. Moreover, in that case the plaintiff had sold the stock to the defendant, and part of the purchase price had been paid, but one-half the amount realized on the sale of the stock, over and above a specified sum, constituted a remaining part of the consideration of the sale to the defendant and one of the terms upon which he sold the stock. Here the plaintiff’s assignor in no event was entitled to more than $25,000, and, therefore, he was not entitled to have the property sold. Burgess was at liberty to retain the ownership of the property and could neither have been compelled to sell it at a profit nor at a loss. If the plaintiff acquired any right by virtue of the letter, she could, on proof of the facts alleged, namely, that the market value of the property at which it might have been sold was more than sufficient to entitle hei* to the entire sum of $25,000, or sufficient to entitle her to some part of it, recover that amount or such part of it in an action at law.

It is claimed, however, that it was necessary for plaintiff to come into equity because the agreement was made, not with her assignor, but with the attorneys. There is no force in this contention. The' letter did not constitute. the attorneys trustees for the plaintiff’s assignor. It was merely intended as evidence of the authority of the attorneys to negotiate for the release. By acting under it they in effect as agents of Burgess made the agreement with the plaintiff’s assignor, to whose benefit it inured. The legal effect is precisely the same as if Burgess had verbally authorized them to make the promise to plaintiff’s assignor.

The record contains two signed decisions. One purports to have been made at the' request of the adult defendants, and the other at the request of the infant defendants. There is no more authority for two decisions than for two judgments in an action. The Code of Civil Procedure merely, provides for one. (Code Civ. Proc. §§ 1010, 1021, 1022, 1023.) The Court of Appeals has sustained the practice of not incorporating all of the findings in the decision (Bremer v. Manhattan R. Co., 191 N. Y. 333; Elterman v. Hyman, 192 id. 113; Whalen v. Stuart, 194 id. 495), but those rulings are not authority for two or more decisions in the same action with respect to the same issues tried at the same time.

In order to obviate any question with respect to the effect in any other.action of certain findings and conclusions not necessarily involved the judgment should be. amended by inserting . before the date of entry the words, “ The dismissal of the complaint is without .prejudice- to an action at law for relief with respect to the same subject-matter; ” and as so modified the judgment should be affirmed, without costs. ■

Scott and Miller, JJ., concurred.