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Calkins agt. Falk.

prove their simultaneous execution. Nor do they purport to be between the same parties; the first has but one party ; the second has two, but neither is the defendant. It was said, on the argument, that the defendant was a party, that Falk and Falleck were the same name only differently spelled, but that cannot be presumed ; if executed at the same time, and meant for the same person, the spelling would, probably, be alike, and hence the presumtion is against its being the same person. The court, without extrinsic evidence, would have no right to say these names were identical. Nor does it appear that these papers relate to the same subject matter.

It is true, they both relate to a sale of hops at the same price, deliverable at the same time and place. But whose hops ? Those of Falk or those of Sutphen It cannot be determined from the writing. So that upon their face, these papers do not show they were executed at the same tine, between the same parties, and relate to the same subject matter. Whether proof aliunde would have been admissible or could have been produced, does not arise, as none was offered. In this view, the writing signed by Sutphen was improperly admitted in evidence.

But conceding the two papers as parcels of one instrument to be construed together, it would not help the plaintiff's case. It would still fall short of the memorandum required by the statute of frauds. It would fail to show who were the contracting parties, which was the seller, and which the buyer ; both agree to sell and both to pay, one to himself and the other to a third party. To ascertain, it would still be necessary to go outside the writings, and that would defeat the statute.

To answer the statute demands, the memorandum must express the contract, or the parties are not bound. As was said by Chief Justice KENT, in Bailey agt. Ogden, (3 J. R., 399, 418), “the form of the memorandum is not material, but it must state the contract with reasonable certainty, so

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that the substance of it can be made to appear and be understood from the writing itself without recourse to parol


These writings, one or both together, fail to meet these requirements. Hence, no legal or binding contract was established on the trial.

The order of the general term reversing the judgment below was right, and should be affirmed, and judgment absolute rendered for the defendants.

MURRAY, J. (dissenting).—The statute of frauds provides (2 R. S., 135, § 3), “that every contract for the sale of any goods, chattels, or things in action, for the price of fifty dollars or more, shall be void, unless a memorandum of such contract be made in writing, and be subscribed by the parties to be charged thereby.”

The judge, on the trial, correctly decided that these two papers must be read together as one contract. The defendant took no exception to that decision. Assuming that to be so, there is an entire compliance with the statute. It is not denied but what it is sufficiently subscribed.

The party that receives the pay is the vendor of the goods. It is stated in the contract, that Abram Folluk, or Abram Falk, is the party to receive the pay. Abram Folluk and Abram Falk are one and the same person.

The defendant, who is sued as Abram Falk, at the request of plaintiff, produced on the trial that part of the contract signed by Sutphen, in which the purchase price was made payable to Abram Folluk, which proves conclusively, that the defendant Abram Falk and Abram Folluk is one and the same person. It was not denied, on the trial, but that they were one and the same person; no such suggestion was made. The defendant did not intimate he was not the man when the plaintiff presented him the contract, and notified him to deliver the hops. . By the contract, Sutphen agreed to pay for the hops. He then was the purchaser. So that there was a memorandum


Calkins agt. Falk.

of this contract made in writing. It appears, by that writing, who was the vendor, and who the vendee. The property sold, was stated and described. The price to be paid was specified. It was subscribed by both the parties. Nothing more to satisfy the most technical construction of the statute is required.

Though inartificially drawn, it is an entire compliance therewith.

If I am right in these views, the judgment of the general term should be reversed, and that of the special term affirmed.

Knox agt. Mayor, &c., of New York.




complete and adequate remedy in cases of nuisances, in favor of all persong specially injured by them, when they are of a public nature, can be administered in this court unembarrassed by the technical rules prevailing upon the subject in

courts of law. I'Derefore, a tenant for a term of years—not being the owner in fee of the premises, may bring an equitable action, to abate a public nuisance specially injurious to nimself, although, before the Code his only remedy, by way of action, would have been that of a special action on the case for the recovery of damages. The public acquire only such an interest in land appropriated by dedication to the

uses and purposes of a street or highway, as will entitle them to use it for those objects, and subject to that right, which is denominated an easement, the person or persons making the dedication, and those acquiring the property under them,

still retain the fee of the land. The land upon which Broadway, in the City of New York, at the junction with

Fulton street, has been constructed, was dedicated by the owners for the uses and purposes of a public street. Therefore, neither the legislature nor the common council of the city, can authorize or sanction any appropriation of it, except for the purposes of a street, without obtaining the consent of or making compensation

to the owners. . The construction of the bridge at the junction of Broadway and Fulton street in

the city of New York (known as the Loew bridge) has necessarily appropriated tor its support the land which the plaintiff is entitled to have maintained open and unobstructed, subject only to the right of the public to pass and repass over it, and temporarily to occupy it for the improvement and more perfect enjoyment of chat right, and special injury having been occasioned to him in consequence of it, ne has a right to insist upon the abatement and removal of such bridge, as a public nursance. But he cannot recover in this action the damages he has sustained by reason of such mary, because he did not present his claim to the comptroller of the city for adjustment, as he was required to do by the statute, before he commenced the action.

New York Special Term, June, 1868.

THE plaintiff brought this suit as an action in equity for the removal and abatement of what he complains of as a public nuisance, specially injurious to himself. It appears from the complaint, as well as the evidence given on the

Knox agt, Mayor, &c., of New York.

trial of the action, that the plaintiff is lessee for a term of years of the premises affected by the structure complained of, and that he has erected upon them a valuable building at an expense of $75,000. This building is situated upon the northeasterly corner of Fulton street and Broadway, and has been and is now occupied in part by the plaintiff as a store and in part it has been leased out to and occupied by his under tenants.

HAMILTON W. ROBINSON, for plaintiff.
ANDREW J, ROGERS, for defendant.

DANIELS, J. In the outset of the trial, the defendant objected that the plaintiff could not maintain this action for the abatement of the structure in controversy as a nuisance, because he did not own an estate in fee in the premises affected by it, and authorities were produced showing that such was the rule which prevailed in courts of law upon this subject. Under that rule, the plaintiff's remedy at law, as a tenant merely, would be that of a special action on the case, as it was called before the Code, for the recovery of damages. And such actions could be brought if the plaintiff should prove to be entitled to maintain them from time to time, as the damages he might sustain would justify a resort to them during the continuance of the cause producing them. Under that rule he would be bound to submit to the continuance of the wrong for such time as his interest in the leasehold premises continued, if the public authorities should maintain it as long as that.

The only other remedy open to him, would be that enjoyed by him, in common with every other member of the community, of indicting the defendant for a misdemeanor committed by the act of erecting and maintaining a common nuisance, and that would be subject to embarrassments and obstacles that it is not now necessary to enumerate. It is sufficient to say that he was not bound to resort to that

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