and 136 New York State Reporter

entered into, is a mere afterthought, put forth as an excuse for receding from an agreement which it had become unprofitable to fulfill. We are of the opinion that the court committed no error in permitting plaintiff to prove what it actually cost him to do the work for which defendant had contracted. Mayor, etc., v. Second Avenue R. R. Co., 102 N. Y. 572, 7 N. E. 905, 55 Am. St. Rep. 839.

When defendant had refused to proceed with the work, it became plaintiff's duty to proceed with reasonable and usual diligence to procure the work to be done as cheaply as possible, so as to limit the claim for damages. Whether or not he did so proceed was a question for the jury. It was fairly submitted to them, and we find no reason in the evidence to question the justness of their conclusion. The plaintiff was under no obligation, as we consider, to accept defendant's offer to do the work at an advance of $38,000. When that offer was made, plaintiff was in the position of claiming, and with reason, that defendant was bound to do the work under his former proposal. At the very least, that was then a debatable claim, not without a plausible basis. Plaintiff expressed his complete willingness to accept a new proposal from defendant at a higher figure, conditioned only upon the mutual understanding that such acceptance should not be construed as a waiver of any right which he might then have under the earlier proposal and acceptance. This was a reasonable condition, and one which it was unreasonable for defendant to refuse, and his submission of a new proposal without reference to the proposed conditions must be deemed a refusal to accede to it.

No other question presented by the appeal seems to call for extended discussion.

The judgment and order should be affirmed, with costs. All concur.

(116 App. Div. 816)

GRAY v. BUTLER et ux.

(Supreme Court, Appellate Division, Second Department. January 18, 1907.) HUSBAND AND WIFE-SEPARATION AGREEMENT-VALIDITY.

Under Domestic Relations Law, Laws 1896, p. 220, c. 272, 21, providing that a husband and wife cannot contract to dissolve their marriage or relieve the husband from his liability to support his wife, an agreement, in the guise of a separation agreement, to secure to the wife a legal division of the husband's property, by which the wife agreed to accept certain payments, in satisfaction for support and maintenance, and to release him from all claims upon his personal property, was void where there was no separation and none was contemplated, when the contract was executed.

[Ed. Note. For cases in point, see Cent. Dig. vol. 26, Husband and Wife, § 1046.]

Appeal from Special Term, Kings County.

Action by James M. Gray, as trustee, against Orlando W. Butler and Annie Butler. From a judgment for defendant Orlando W. Butler, plaintiff and defendant Annie Butler appeal. Affirmed.

Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, RICH, and MILLER, JJ.

Herbert T. Ketcham (James M. Gray, on the brief), for appel

lants.

Carlton B. Pierce, for respondent.

RICH, J. This action was brought to enforce the provisions of a separation agreement executed at a time when defendants were living together as husband and wife; that relation continuing for more than six months thereafter. The agreement was kept a secret, and to all outward appearances there was no change in the relations of the parties, who continued to live together the same as they had done before. The learned justice presiding at the trial has found upon sufficient evidence that it was not the purpose of either spouse at the time of executing the agreement to live separate and apart. Under these circumstances such a contract cannot be enforced in equity. Westmeath v. Salisbury, 5 Bligh, 338; Zimmer v. Settle, 124 N. Ý. 37, 26 N. E. 341, 21 Am. St. Rep. 638; Carson v. Murray, 3 Paige, 483-501; Hughes v. Cuming, 36 App. Div. 307, 55 N. Y. Supp. 256. It is urged, however, by the learned counsel for the plaintiff that, in view of another finding that "the sole purpose of the execution of the agreement was to secure to the wife a legal division of the property of the husband," the case of a valid and enforceable agreement between the parties is presented. We are unable to concur in this view. The domestic relations law (section 21, c. 272, p. 220, Laws 1896), provides:

"A married woman has all the rights in respect to property, real or personal, and the acquisition, use, enjoyment and disposition thereof, and to make contracts in respect thereto with any person including her husband, but a husband and wife cannot contract to alter or dissolve the marriage or to relieve the husband from his liability to support his wife." This is precisely what the parties to this agreement sought to do. In consideration of certain payments proposed to be made by the husband, his wife agreed to accept the same in full satisfaction for her support and maintenance, and to relieve him from any and all claims she may have upon his personal property, and the trustee on his part agreed to save the husband free from all debts due or payments incurred by the wife. Such an agreement under the guise of a separation agreement is in contravention of the statute and void. I am not unmindful of the recent decision of this court (Reardon v. Woerner, 111 App. Div. 259, 97 N. Y. Supp. 747) in which it was held that an action would lie to enforce the condition of a contract of separation, but that case is distinguishable from this, in that the husband and wife had actually separated and the contract was made to insure the support and protection of the wife, while in the case at bar there was no separation and none was contemplated when the contract was executed. The judgment must be affirmed, with costs. All concur.

(52 Misc. Rep. 220)

and 136 New York State Reporter

KORN v. CAMPBELL.

(Supreme Court, Special Term, New York County. November, 1906.) DEEDS RESTRICTIONS-ENFORCEMENT.

A grantor conveyed a tract of land by a deed containing a covenant against nuisances, which restricted the use of the premises to the erection of first-class private residences. Subsequently the premises were divided, and thereafter dwelling houses were erected thereon which were used as private residences. Held, that the premises were subject to the covenant in the deed, and an owner of a part thereof was entitled to enforce it against an owner of another part, unless there had been such a change in the character of the neighborhood as to defeat the object of the covenant, and to render it inequitable to compel the owner to limit the use of his property for private residences only.

[Ed. Note. For cases in point, see Cent. Dig. vol. 16, Deeds, §§ 543, 544.] Action by David Korn against Georgine Campbell. Judgment for plaintiff.

Albert T. Sharps, James L. Bishop, and James Frank, for plaintiff.

David B. Ogden and Francis C. Huntington, for defendant.

NEWBURGER, J. Plaintiff is the owner of No. 924 Madison avenue, while the defendant is the owner of No. 922, and the buildings erected upon the premises are known as private dwelling houses. The defendant is about to alter the building No. 922, and has filed with the building department plans which contemplate such changes as to permit the lower part to be used for stores, and the first floor above the basement for office purposes; and, as defendant testified, the alterations were for the purpose of letting the building for business purposes. This action is brought to restrain the defendant from making such alterations as being in violation of a restrictive covenant imposed upon said property.

James Lenox on the 10th day of August, 1870, conveyed to one Lalor premises on the northwest corner of Madison avenue and Seventy-Third street, being 195 feet on the northerly side of Seventy-Third street from the corner of Madison avenue and 102 feet 2 inches on the westerly side of Madison avenue, from the corner. The deed contained a covenant against nuisances, which provided, among other things:

"Not to permit any trade or business whatsoever which may be in anywise noxious or offensive to the neighboring inhabitants, but will use, or suffer the said premises to be used, for the erection of first-class private residences only."

Subsequently the premises were divided, and thereafter dwelling houses were erected, and are now standing and used as private residences, with the exception of three properties further west on 'SeventyThird street, which have been torn down and are now occupied by other private houses. The property of the plaintiff and defendant is still subject to the covenants in the deed from Lenox to Lalor. See Raynor v. Lyon, 46 Hun, 227. It has been repeatedly held that courts of equity will enforce such covenants, unless there has been such a

change in the character of the neighborhood as to defeat the object and purpose of the agreement, and to render it inequitable to deprive such owner of conforming his property to that character. It appears from the stipulated facts (Exhibit 3) that all the property upon both sides of Seventy-Third street and Seventy-Fourth street, from Fifth avenue to Park avenue, is used for private residences only, and the evidence wholly fails to disclose any change in the immediate neighborhood. The contention of the defendant that by reason of the change of the motive power of the railroad on Madison avenue the property cannot be as profitably sold or rented is not borne out by the evidence.

Judgment for plaintiff. Findings signed.

(116 App. Div. 744)

FULTON v. SEWALL et al.

(Supreme Court, Appellate Division, Second Department. January 11, 1907.) PRINCIPAL AND AGENT-LIABILITIES AS TO THIRD PERSONS-ACTION-INSTRUCTIONS.

Where it appeared that defendants agreed to pay plaintiff a certain sum for inducing Italian workmen to emigrate to the Hawaiian Islands, and it appeared that defendants were acting as agents for a sugar planters' association composed of individuals residing in the Hawaiian Islands, and that such agency was known to plaintiff, an instruction that persons, though contracting only as agents, are generally liable where there is no responsible principal to resort to, and that, if the jury believed that the sugar planters' association was not legally competent to make a contract or liable to be sued and defendants knew such fact and plaintiff did not, defendants would be liable as principals, was erroneous; there being no question of an agent contracting for a sham principal, and the fact that the association was not incorporated not rendering the agents liable.

Appeal from Trial Term, Kings County.

Action by Andrew J. Fulton against Oscar T. Sewall and others. Appeal by defendant Sewall from a judgment in favor of plaintiff and from an order denying a motion for a new trial. Reversed, and new trial granted.

Argued before HIRSCHBERG, P. J., and JENKS, HOOKER, MILLER, and GAYNOR, JJ.

I. R. Oeland, for appellant.

William G. Cooke, for respondent.

MILLER, J. The defendant Sewall appeals from a judgment entered on the verdict of a jury and from an order denying a motion for a new trial in an action brought to recover damages for the breach of a contract, whereby it is claimed the defendants agreed to pay the plaintiff the sum of $2 for each Italian workman whom he should induce to emigrate to the Hawaiian Islands.

It appeared that the defendants were engaged in a general shipping and commission business, and were the representatives in this country of the Hawaiian Sugar Planters' Association, an unincorporated association, composed of the sugar planters of the Hawaiian Islands, who

and 136 New York State Reporter

were attempting to obtain laborers for their plantations. The plaintiff was first employed in connection with the enterprise by another agent of said association to accompany as surgeon to San Francisco a body of Porto Rican emigrants. Thereafter he met the defendants and was employed at a salary of $300 per month and expenses to aid in encouraging Italians employed on the sugar plantations of Louisiana and Porto Ricans to emigrate to Hawaii. In October, 1901, the contract in suit was made, by which, instead of a monthly salary, the plaintiff was to receive the per capita compensation stated, supra. The plaintiff's efforts under the latter employment began in December, 1901. After at least one expedition that had been arranged for had failed for want of emigrants, another was scheduled to start January 21, 1902, and arrangements were made by the defendants to transport from San Francisco at least 150. However, the plaintiff only succeeded in reaching there with six workmen, and he was then informed that it was decided to discontinue the movement. In his complaint the plaintiff alleges that on January 21, 1902, he had induced more than 3,000 workmen to emigrate, and he now claims that, instead of giving him a reasonable time to perform his contract, the defendan's stopped him just at the point of success. He accounts for the disparity between his present claim and his performance up to that time by the fact that the grinding season on the sugar plantations in the south had not yet ended; but in a letter written by him on the 21st of January, 1902, he accounts for the failure of the expedition scheduled to start on that day by the fact that the wages which he was authorized to offer was not sufficient to induce the men to emigrate, and in letters previously written he had stated that on account of the difficulties under which he labored he had been obliged, in order to insure the success of the expeditions advertised for January 21 and February 3, 1902, to offer the leaders of the men and the boarding house keepers where they boarded fees ranging from $1 to $5 for each man whom they should induce to join the expedition. But the jury have said that the plaintiff has suffered $7,000 damages by not being permitted to continue his efforts.

It is not claimed that the plaintiff did anything after the failure of January 21, 1902. He testified that prior to that time he had visited the different Italian settlements on the plantations and learned the number of men from each who were willing to go to Hawaii. He claims he obtained this knowledge in the following manner, viz.: The interpreter who accompanied him read to the men in Italian from the proposed agreement pursuant to which they were asked to emigrate. The men then talked with their leaders and with each other in Italian. : If the leader could speak English, he then told the plaintiff the number of men who had reported to him a willingness to go, and, if he could not speak English, he talked with the interpreter in Italian, who, in turn, interpreted to the plaintiff what he claimed the leader said. It did not appear what communications were made to the plaintiff through the medium of an interpreter and what ones directly by the leaders. The plaintiff could not understand Italian. This evidence was objected to as hearsay, and after it was all received the Trial Court made