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The municipality is to be protected in its autonomy against the inroads of evasion.

fortune defying probabilities. Even before the Home Rule Amendment, the framers of In the setting of this background the va- a statute did not save it from being local lidity of the act of 1925 (Laws 1925, c. 602) | by making it apply to two or three cities inis to be considered and determined.

stead of one. People ex rel. Clauson v. New.[1] The act is general "in its terms" to the burgh & S. P. R. Co., 86 N. Y. 1, 7. Something extent that it applies to any city where the more than this was involved, even then, in prescribed conditions are fulfilled. It is the notion of generality. What was true in general to that extent "in its effect." Even those days is yet more plainly true to-day. so, the question remains whether the condi- "The marks of distinction on which the tions are so circumscribed and narrow that classification is founded must be such, in the the class subjected to the statute is one in nature of things, as will, in some reasonable name and nothing else. The act is not degree at least, account for or justify" the drawn as an amendment of section 44 of grouping-justify it, in other words, as the Civil Practice Act. The presumption of based upon something better than arbitrary payment established by that section is not preference. People ex rel. Richards v. Hamabolished or modified in its application to mer, 42 N. J. Law, 435, 440. cf. Alexander every one. It is not changed in its appli- v. City of Elizabeth, 56 N. J. Law, 71, 79, 80, cation to all cases where a city is the debtor. 28 A. 51, 23 L. R. A. 525; State ex rel. Van It is not even changed in all cases in which Riper v. Parsons, 40 N. J. Law, 1, 123; a city has been charged with an award for Town of Longview v. City of Crawfordsville, the value of land taken by right of eminent 164 Ind. 117, 121, 122, 73 N. E. 78, 68 L. R. A. domain. It is changed in respect of one 622, 3 Ann. Cas. 496. Futile is the endeavor class of awards only, awards for opening, to mark the principle of division with the widening, and extending a street. But even precision or binding force of a codifying in this special class of proceedings, the scope statute. Any statement attempted will need of the exemption is whittled down again. to be shaded down or enlarged to meet the It is not enough that the enforcement of the exigencies of particular instances as hereaward has been barred by limitation; a after they develop. "judgment" declaring it barred must have been rendered by the courts. It is not enough that such a judgment has been rendered; it must have been rendered "within one year last past." A claim upon an award might have been barred by the delay of a single day beyond the statutory term. There would be no revival of its life unless the bar had been adjudged within the year. It might have been barred under a judgment rendered a day earlier than the year, or a day later. There would be no revival then. Out of all time, past and future, a single year is selected. Any award then condemned by the courts is to be revived, though the award itself be a century old. Anything not condemned within that lucky year, that "annus mirabilis," is to be governed by exist-classification, appear upon its face. By its ing law.

We close our eyes to realities if we do not see in this act the marks of legislation that is special and local in terms and in effect. This group of conditions so unusual and particular is precisely fitted to the claimant's case, and only by a most singular coincidence could be fitted to any other. If we may not say of such a coincidence that it is literally impossible, at least we may say that one would be surprising, and several would be marvelous. An act is not general when the class established by its provisions is at once so narrow and so arbitrary that duplication of its content is to be ranked as an unexpected freak of chance, a turn of the wheel of

[2, 3] Roughly speaking, however, the principle of division, considered merely for the purpose of a working approximation, may be stated to be this: If the class in its formation is so unnatural and wayward that only by the rarest coincidence can the range of its extension include more than one locality, and at best but two or three, the act so hedged and circumscribed is local in effect. If the same limits are apparent upon the face of the act, unaided by extrinsic evidence, or are so notorious or obvious as to be the subject of judicial notice, it is also local in its terms.

The statute now before us does not survive these tests. All the stigmata of arbi trary selection, of forced and unnatural

terms a new burden has been laid, not upon cities generally, despite its pretense of generality, but upon one city or a few. A misshapen congeries of accidents has been made to masquerade under the semblance of a class.

The order of the Appellate Division and that of the Special Term should be reversed and the application denied, with costs in all courts.

POUND, CRANE, ANDREWS, KELLOGG, and O'BRIEN, JJ., concur. LEHMAN, J., absent.

Ordered accordingly.

(158 N.E.)

(246 N. Y. 79)
KEYSTONE HARDWARE CORPORATION
v. TAGUE.

Court of Appeals of New York. July 20, 1927.
1. Specific performance 30-Written mem-
orandum, not providing for term of mortga-
ges on land sold, held not capable of specific
performance (Real Property Law, § 259).
In action to recover deposit paid for land,
written memorandum, not providing for term
of mortgages, under Real Property Law (Con-
sol. Laws, c. 50), § 259, was not capable of spe-
cific performance as asked in counterclaim.
2. Judgment 181-Issues of fact held to pre-
vent summary judgment in action to recover
deposit paid for land (Real Property Law, 8
259; Rules of Civil Practice, rule 113).

In action to recover deposit paid for land, where written agreement not providing term of mortgages was not sufficient, under Real Property Law (Consol. Laws, c. 50), § 259, to be specifically enforced, issues of fact raised by affidavit on motion for summary judgment, under Rules of Civil Practice, rule 113, stating that after execution of written agreement oral agreement fixed term of mortgage at five years, and other issues of fact, permitting finding that defendant was willing to perform contract as supplemented by such oral agreement and that plaintiff refused, held to prevent award of summary judgment.

3. Frauds, statute of 132-Money paid in part performance of oral contract to buy land cannot be recovered if vendor is willing to convey.

Money paid in part performance of oral contract for purchase of land cannot be recovered if vendor is willing to convey on performance of conditions.

4. Frauds, statute of

119(2)-Plaintiff may not, by pleading statute, take advantage of its own wrong.

Plaintiff may not, by pleading the statute of frauds, take advantage of its own wrong. 5. Frauds, statute of 138(2)-Part payment to bind sale of land may not be recovered by purchaser willfully refusing to make genuine effort to reach agreement as to details left open for subsequent adjustment.

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O'BRIEN, J. The action is an ordinary one at law for money had and received. The complaint alleges that defendant had and received $1,000, the property of plaintiff, at a certain time and place, which sum defendant

promised to pay to plaintiff, and after demand has failed to do so. No relief is asked except judgment for that sum of money with interest and costs. The answer admits the receipt of the money at the time and place alleged, but denies any promise to pay or any demand. It alleges as a counterclaim that the sum was paid to defendant by plaintiff pursuant to an agreement in writing for the sale of land; that defendant was willing to perform in all respects; and that plaintiff refused to consummate the purchase and to pay the balance of the purchase price. For relief the answer demands specific performance of the agreement or judgment for the balance of the purchase price as agreed. Plaintiff's reply admits the agreement as alleged in the counterclaim except that it denies that it was in writing, and denies that defendant was willing to perform, that plaintiff was unwilling, and that plaintiff paid the $1,000 on account of the purchase price of the land described. The reply also pleads the statute of frauds, and alleges that the writing, which purports to be the instrument whereby defendant attempted to convey an interest in land, does not contain all the terms, conditions, and provisions of the agreement and is insufficient, void and unenforceable.

Part payment made to bind contract to [1, 2] Certain evidence appears by affidasell land may not be recovered by purchaser if vits opposing the motion for summary judghe willfully refuses to make genuine effort to ment. During negotiations between the parreach agreement as to details left open for sub-ties for the sale of land, plaintiff's attorney sequent adjustment, though such refusal might be effective to thwart specific performance at

suit of vendor.

drew a memorandum in writing in order to meet requirements of section 259, Real Property Law (Consol. Laws, c. 50). The memo

Appeal from Supreme Court, Appellate Di- randum did not fully meet such requirevision, First Department.

Action by the Keystone Hardware Corporation against Patrick Tague. From a judgment entered on an order of the Appellate Division, First Department (218 App. Div. 820, 218 N. Y. S. 789), affirming an order which granted a motion to strike out an an

ments, because it did not provide for the term of mortgages. It mentioned mortgages for a definite amount, but described them as "expiring on date to be subsequently agreed on." A complete agreement in writing had not therefore been reached. If the parties never agreed upon the date of the expiration

of the mortgage, the contract could not be spe-1 402, 42 N. E. 13; Imperator Realty Co. v. cifically performed. Ansorge v. Kane, 244 N. Tull, 228 N. Y. 447, 127 N. E. 263. Y. 395, 155 N. E. 683; Pollak v. Dapper, 246 N. Y. 628, 157 N. E. 886. Plaintiff does not bring this action for specific performance. He sues only for money had and received. Some evidence appears in the record that the parties made a parol agreement respecting the date of the expiration of the mortgages. An affidavit filed by defendant on the motion for summary judgment states that after the written agreement had been executed, plaintiff's president asked defendant if he would make the term of the mortgage five years, and that defendant replied that he would do so. Other issues of fact are raised by evidence, from which a finding might follow that defendant was willing to perform this contract as supplemented by the oral agreement and that plaintiff refused.

[3, 4] The issues of fact present in this case prevent the award of a summary judgment. If the statements contained in defendant's affidavits be accepted by a jury as true, we would find the case to be one where the parties signed a memorandum or binder complete in all respects except one item which was left for future agreement, where such an agreement subsequently was orally reached, where plaintiff from the beginning recognized validity of the memorandum, paid $1,000 upon the strength of it (Rothschild v. Title Guarantee & Trust Co., 204 N. Y. 458, 97 N. E. 879, 41 L. R. A. [N. S.] 740), where defendant always was willing to perform, and where plaintiff later seeks a pretext to repudiate its bargain. It is not defendant who pleads the statute of frauds. He is satisfied with the contract. The fact that it was incomplete in the sense that something was left for future negotiation does not concern plaintiff as far as his alleged cause of action is concerned. The agreement was not illegal. There was no objection in law to complete performance by both parties. Money paid in performance in part even of an oral contract for the purchase of land cannot be recovered if the vendor is willing to convey on the performance of the conditions by plaintiff. Collier v. Coates, 17 Barb. 471. A jury might find on the issues created by the pleadings and affidavits in this action that plaintiff had paid its money in part performance of a contract which was never in danger of repudiation by defendant. If a jury should accept defendant's evidence, a necessary conclusion would follow that plaintiff is attempting, by its plea of the statute of frauds, to take advantage of its own wrong. No court will tolerate such a thing. Riggs v. Palmer, 115 N. Y. 506, 22 N. E. 188, 5 L. R. A. 340, 12 Am. St. Rep. 819; Thomson v. Poor, 147 N. Y.

Defendant cannot, however, enforce specific performance. The elementary rule that written instruments cannot be varied by parol agreements is not here applicable. No attempt was made to vary anything. The memorandum provides that a future agreement shall be made, and defendant says that the fact has been accomplished. In effect, he asserts that the parties have not varied, they have conformed. For all that, we think that under our decisions he cannot recover on his counterclaim. The effect of the reasoning in Ansorge v. Kane, supra, followed so recently in Pollak v. Dapper, supra, prevents enforcement by defendant of specific performance. We have decided that if a material element of a contemplated contract is left for future negotiations, there is no contract enforceable under the statute of frauds. Duration of the mortgages is certainly a material element in the agreement before us, and it was left for future negotiations. The fact that later the negotiations were completed by arriving at an oral agreement cannot affect the original contract. If the parties had merely provided for mortgages at certain amounts and remained silent in respect to rate of interest and date of maturity, the law would imply legal rate and maturity on demand. Weintraub v. Kruse, 234 N. Y. 575, 138 N. E. 452; Wertheimer v. Boehm, 241 N. Y. 575, 150 N. E. 561. They did not remain silent, they expressly reserved the subject for future consideration and, therefore, under the established rule, specific performance cannot be decreed.

[5] We have said that statements in the affidavits supported the conclusion that there was a later and oral agreement as to the terms of the mortgage. We are not to be understood, however, as holding that the failure of the defendant to establish such an agreement will require judgment in favor of the plaintiff for the return of the deposit. when a part payment is made under a binder such as the one in suit, the party making the payment, the vendee, may not recover it thereafter if he has willfully refused to make any genuine effort to reach an agreement as to the details left open for subsequent adjustment. Such refusal will indeed be effective to thwart specific performance at the suit of the vendor. It will not confer a cause of action for money had and received, a cause of action rooted in principles of equity.

The judgment of the Appellate Division and that of the Trial Term should be reversed and plaintiff's motion to strike out answer and for summary judgment denied, with costs in all courts.

(158 N.E.)

CARDOZO, C. J., and POUND, CRANE, 16. Negligence 35-Act of individual performed on own soil detracting from safety of travelers is "nuisance."

LEHMAN, and KELLOGG, JJ., concur. ANDREWS, J., absent.

Judgment accordingly.

(246 N. Y. 85)

KLEPPER v. SEYMOUR HOUSE CORPORATION OF OGDENSBURG, Inc., et al.

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Court of Appeals of New York. July 20, 1927. 1. Municipal corporations 759(3), 808 (1) Duty of city and adjoining property owner to passers-by on street used by public held same as if street had been legally laid out.

Where street and sidewalk thereof adjoining house from which snow and ice fell on pedestrian had been used as public passageway for 50 years, duty of city and adjoining property owner to passers-by was same as if street had been legally laid out by proper municipal proceedings.

2. Municipal corporations 759 (3)-City has duty to use reasonable care to maintain street in reasonably safe condition and to remove dangerous obstructions or incumbrances.

Where street had been used by public for 50 years, city was under duty to use reasonable care to maintain it in reasonably safe condition for travel and remove all dangerous obstructions or incumbrances.

3. Municipal corporations 808 (5)-Property owner has duty to maintain building so that ice and snow will not fall on pedestrians on sidewalk.

Owner of building abutting on sidewalk has duty to maintain building so that snow and ice will not accumulate on roof and fall on passersby on sidewalk, regardless of whether cornice of building projects over sidewalk.

4. Municipal corporations 808 (9)-Previous falling of snow and ice on sidewalk held to charge owner of building with notice.

Frequency with which snow and ice had accumulated on roof and building and had fallen to sidewalk during previous years, including three or four times in winter previous to injury to pedestrian, was sufficient to charge owner of building with notice of its condition.

Any act of individual, though performed on own soil, detracting from safety of travelers, is "nuisance."

7. Municipal corporations 816(8)-Where complaint for injury to pedestrian from falling ice and snow charged nuisance and negligence, submitting case to jury under negligence of owner of house abutting on street held proper.

Where complaint in action by pedestrian against city and owner of house abutting on sidewalk for injuries from falling ice and snow alleged both nuisance and negligence, submitting case to jury under law of negligence as to abutting property owner was not error.

8. Municipal corporations 819(2)—Evidence held to justify finding that owner of building was in possession, charged with duty to maintain it so snow and ice would not fall on sidewalk to injury of pedestrians.

In action by pedestrian for injury from falling ice and snow, evidence that corporation, fell, on leasing property undertook to and did owner of building from which snow and ice repair outside of premises and roof held to justify jury's finding that it was in possession of property and charged with duty of keeping building in such condition that snow and ice would not fall on pedestrians to their injury.

9. Landlord and tenant 167(1)-Owner of property abutting street cannot escape duty to maintain it in reasonably safe condition, unless he parts with entire possession and control.

Owner of property abutting highway or street cannot escape duty of exercising reasonable care to maintain property in reasonably safe condition as to passers-by, unless he parts with entire possession and control of premises.

10. Municipal corporations 819 (2)-Evidence held to support finding of negligence by owner of building from which snow and ice fell on pedestrian.

Evidence held to support finding of negligence by owner of building from whose roof snow and ice fell and injured pedestrian on sidewalk.

5. Municipal corporations 779, 808 (5) — Roof collecting snow and ice and discharg-11. Municipal corporations 779-City, with ing it on passers-by in public street is "nuisance."

Roof, so constructed as to collect snow and ice and discharge it on passers-by in public street, necessarily imperiling safety of public, becomes "nuisance."

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Nuisance.]

constructive notice that cornice of building projected over sidewalk, held liable for injury to pedestrian from falling snow and ice.

Where snow and ice had fallen several times from cornice projecting over sidewalk and had been reported by policeman, and city had constructive notice that cornice projected, it was liable for subsequent injury to pedestrian from falling snow and ice.

12. Municipal corporations 808 (9)-Owner Edmund Fitzgerald, of Ogdensburg (Delos leasing building whose cornice projected over M. Cosgrove and Loren E. Harter, both of sidewalk held liable for injury to pedestrian Watertown, of counsel), for appellant. from falling snow and ice.

Where owner of building with slanting roof and cornice projecting over sidewalk entered into possession and leased it, no actual notice to owner of such condition was necessary, and it was liable to pedestrian injured by falling snow and ice, especially in view of fact that owner remained in control of roof.

13. Trial 335-Where verdict for pedestrian against city and owner of property abutting on sidewalk was according to law, subsequent division of damages may be regarded as nullity.

In pedestrian's action against city and owner of property abutting on sidewalk for injury from falling snow and ice, where jury found verdict for plaintiff against both defendants in accordance with law, subsequently dividing damages into two amounts as against each of defendants pursuant to court's direction may be regarded as nullity.

14. Stipulations 18(8)-Court's reinstatement of verdict at subsequent term pursuant to stipulation held proper.

Where jury at court's direction separated verdict for pedestrian against city and owner of property abutting on sidewalk, on stipulation of parties that motion to set aside verdict and for new trial, and to amend verdict by directing entry of judgment for full amount against both defendants could be heard at subsequent term presided over by same trial judge, court's reinstating verdict at subsequent term was proper, regardless of defendants' reservation of right to object to power and jurisdiction to grant plaintiff's motion to amend verdict.

Frank J. Ryan, of Utica, and Francis E. Cullen, of Watertown, for respondent Seymour House Corp. of Ogdensburg, Inc.

Robert S. Waterman, of Ogdensburg, for respondent City of Ogdensburg.

CRANE, J. On January 15, 1923, the plaintiff, a young woman 29 years of age, was walking with her two children on the sidewalk of State street, a public highway, in the city of Ogdensburg. She was in front of a building known as the Seymour House, owned by the defendant, the Seymour House Corporation. While thus proceeding, a mass of ice and snow, weighing about 150 pounds, fell upon her from the roof of the Seymour House, inflicting serious and permanent injuries. The judgment which she recovered at Trial Term against the owner of the Seymour House and the city of Ogdensburg has been reversed by the Appellate Division, and her complaint dismissed.

[1] State street has been one of the principal streets and highways in the city of Ogdensburg for over 50 years. The Seymour House has been there for the same length of time, in substantially the same condition as it was on the day of the accident. The sidewalk of State street, adjoining the Seymour House at the place of the accident, for all these years had been open to the public and used by them as a public street. The city has recognized and treated it as such. For the full width of its user, the duty of the city and the adjoining property owner to passersby was the same as if the street had been legally laid out by proper municipal proceed

15. Appeal and error 1094(5)-On reversal of trial court's judgment on law alone, in ab-ings. On the trial much unnecessary effort sence of reversible error of law, judgment of trial court should be affirmed.

Where trial court's judgment for pedestrian suing for personal injuries from snow and ice falling from building abutting on sidewalk was reversed on law alone and in effect affirmed on facts, in absence of error of law justifying reversal, judgment of trial court should be affirmed on appeal.

was expended in attempts to show that the Seymour building, as distinguished from the cornice, encroached upon the highway. This apparently led to much confusion, and was not at all essential to sustain the plaintiff's claim. Sewell v. City of Cohoes, 75 N. Y. 45, 31 Am. Rep. 418; Ivory v. Town of Deerpark, 116 N. Y. 476, 22 N. E. 1080. We may therefore dismiss this question upon which much

Appeal from Supreme Court, Appellate Di- evidence was given without further consideration. vision, Third Department.

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[2, 3] As to this street where the plaintiff was traveling, the city of Ogdensburg was under the duty to use reasonable care to maintain it in reasonably safe condition for travel and to remove all obstructions or incumbrances which were dangerous. The owner was also under the duty to maintain its building so that snow and ice would not accumulate upon the roof and fall off upon passers-by to their injury.

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