and 136 New York State Reporter

default of such appointment, to her heirs at law. One-fifth to the appointees of my daughter Rebecca Mason Jones, by deed or by will, and in default of such appointment, to her heirs at law. One-fifth thereof to my daughter Margaret Smith. One-fifth thereof to my grandson Daniel Butler Fearing. and if he should have died before the death of the longest liver of my said daughters, Frances and Rebecca, without lawful issue him surviving, then I give the said one-fifth to the appointees, or in default thereof, to the heirs at law of my said daughters, Frances and Rebecca, and to my said daughter Margaret Smith, and to the lawful issue living at the time of his death. of any child of mine then deceased, share and share alike, per stirpes. Onetenth thereof to my grandson Lewis Quentin Jones, and if he should die before the said longest liver of my two said daughters, Frances and Rebecca, without lawful issue him surviving, then I give and devise the said one-tenth to the appointees, or in default thereof. to the heirs at law of my said daughters, Frances and Rebecca, and to my said daughter Margaret Smith, and to the lawful issue living at the time of his death, of any child of mine then deceased, share and share alike, per stirpes. One-tenth thereof to my greatgranddaughter, Frances Coster Jones, and should my said great-granddaughter have died before the death of the longest liver of my two said daughters, Frances and Rebecca, without lawful issue her surviving, I give the said one-tenth to the appointees, or in default thereof, to the heirs at law of my said daughters, Frances and Rebecca, and to my said daughter Margaret Smith, and to the lawful issue living at the time of my said greatgranddaughter's death of any child of mine then deceased, share and share alike, per stirpes."

Rebecca Mason Jones died June 11, 1890. Frances died April 15, 1906. In 1897 William Alexander Smith, who was then the trustee, in proceedings instituted in this court, obtained an order authorizing the sale of No. 70 Broadway and directing the proceeds to be held as if the same were real estate and the said trust property had not been converted into money. In 1905 William Alexander Smith was discharged as trustee and the plaintiff was appointed in his place, and certain property was thereupon turned over to the plaintiff, and this property, with the income thereon, is now to be accounted for. As the trust created under the fourth article of the will of George Jones came to an end upon the death of Frances Jones, the only question submitted is the distribution of the one-fifth which Frances Jones had power to appoint. Frances Jones by the third clause of her will makes the following disposition:

"Third. I give, devise and bequeath to the New York Life Insurance & Trust Company, a corporation having its principal place of business in the city, county and state of New York, and to its successors, all the rest, residue and remainder of my estate, real and personal, of which I shall die seized and possessed, or subject to my disposal by will, to have and to hold the same during the life of Frances Coster Kip, daughter of my nephew Alfred Renshaw Jones, now deceased, in trust and with power to the said corporation and its successors to collect and receive the rents, income and profits thereof, and to apply the said rents, income and profits to the use of the said Frances Coster Kip during her life. Upon the decease of the said Frances Coster Kip, leaving issue her surviving, I give, devise and bequeath the said rest, residue and remainder of my estate, real and personal, to her Issue absolutely forever."

She thus attempts to exercise this power by giving the property in trust for the benefit of Frances Coster Kip during her life and on her death leaving to her issue surviving, and in the event that no issue survive her then to Daniel Butler Fearing and Lewis Quentin

Jones. It is apparent that this attempted disposition of the interest in 70 Broadway by Frances Jones is absolutely void. The property was tied up by George Jones' will during the lives of his daughters, Rebecca and Frances, and if the power of appointment exercised by Frances Jones were enforced it would result in suspending the power of alienation and the absolute ownership for three lives; for by the attempted exercise by Frances Jones in her will of the power of appointment it was further tied up during the life of Frances Coster Kip with remainder to persons who could not be ascertained until the death of Frances Coster Kip.

Section 158 of the real property law (Laws 1896, p. 583, c. 547) provides:

"The period during which the absolute right of alienation may be suspended by an instrument in execution of a power must be computed not from the date of such instrument, but from the creation of the power."

It is further provided by section 32 of the real property law: "The absolute power of alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed. Every future estate shall be void in its creation which shall suspend the absolute power of alienation by any limitation or condition whatever for a longer period than during the continuance of not more than two lives in being at the creation of the estate."

I am therefore of the opinion that the attempted exercise by Frances Jones of her power of appointment under the will of George Jones is invalid, and the fund should be distributed as provided by the will of George Jones, viz.: One-third to Margaret Smith, which interest has since passed to William Alexander Smith; one-third to Daniel Butler Fearing; one-sixth to Lewis Quentin Jones; and one-sixth to Frances Coster Kip. Having held that the attempted appointment by Frances Jones is void, it necessarily follows that the fund cannot be charged with the payment of any of her debts or pecuniary legacies.

Submit findings and interlocutory judgment in accordance with the views expressed, and providing for the taking of the plaintiff's accounts before a referee

(116 App. Div. 829)

TREGNER v. HAZEN.

(Supreme Court, Appellate Division, Second Department. January 18, 1907.) FRAUD-ELEMENTS-INJURY.

An agent of a publisher is not entitled to recover for false representations by the publisher in procuring the contract of employment that he had for many years done probably the largest business in the United States, in the absence of proof of any damage from the misrepresentation.

Appeal from Trial Term, Kings County.

Action by August J. Tregner against Marshman W. Hazen. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Reversed, and new trial granted.

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

and 136 New York State Reporter

James A. Allen, for appellant.

David W. Rockmore, for respondent.

MILLER, J. On the 10th day of May, 1902, the plaintiff entered into a contract with the defendant, a publisher, pursuant to which he agreed to act as a general selling agent of the defendant in the state of Iowa. The defendant was to furnish the plaintiff an office at Des Moines, Iowa, and to pay him a monthly salary, together with the expenses of the business, and in addition a commission on the net sales made through solicitors and agents employed by him. The payment of said salary and expenses, however, was conditioned upon a stipulated amount of business which the plaintiff was required to do in order to fulfill his contract. The plaintiff was required by said contract to, and did, order and pay for books of the net value of $800, and it was agreed that upon the termination of the agency the defendant should repurchase any books which the plaintiff might then have on hand, at the prices originally paid. For some reason the plaintiff was not successful, and he claims that he was induced by fraud to enter into the agreement. He did not return or offer to return the books which he received pursuant to the contract and for which he paid said sum of $800. The first difficulty encountered upon an examination of this record is to know whether the action is one to recover back the money paid on a rescission of the contract for fraud, or one to recover damages for the fraud. The allegations of the complaint are appropriate to the former action. No attempt whatever was made to prove damages, and the case was submitted to the jury in a charge more appropriate to the former action than to the latter, although from a remark of the court in response to an exception taken by the defendant it would seem that the court was of the opinion that the case had gone to the jury as an action to recover damages for false representations.

Upon this appeal the appellant argues that the plaintiff cannot have damages for the fraud, as he has treated the contract as having been rescinded, while the respondent insists that there was no actual rescission of the contract, and that the cause of action established was for damages for fraud. I think we may adopt the plaintiff's own view of the nature of his cause of action, particularly as he could not maintain an action to recover back the money paid on the theory of rescission without first having returned or offered to return the books received by him. The fraud complained of consisted of alleged false representations that the defendant had "for many years done probably the largest business in the United States, putting on the market many unique and valuable publications," and alleged false promises to pay the plaintiff the salary, expenses, and commission hereinbefore referred to. While the case was tried and submitted to the jury apparently on the theory that broken promises as well as misstatements of fact could be made the basis of an action for fraud, I shall not discuss the proposition that the plaintiff could recover in this action, if at all, only upon the alleged representation first quoted, supra. In that portion of the complaint containing the necessary allegation of reliance

by the plaintiff upon the representation made, he alleged that he relied on the correspondence containing such representations. It was not claimed that said representation was made by the defendant personally, but by his agent, with whom the plaintiff had some negotiations preliminary to negotiating directly with the defendant. One of the letters of said agent did contain a statement that:

"The M. W. Hazen Company * in their special lines have for many years done probably the largest business in the United States, putting on the market many unique and valuable publications."

There was no attempt made to prove the falsity of this representation, but the plaintiff was permitted, over objection, to testify to an oral representation made by said agent exactly like that last quoted, with the omission of the words "in their special lines." It was conceded that the defendant was not doing the largest publishing business in the United States. After the plaintiff had enumerated at the request of the defendant's counsel the representations on which he relied without referring in any way to the one under discussion, he did on redirect examination, in answer to a leading question of his counsel, say that he relied on said representation, but a reading of this record has convinced me that said representation had not the slightest influence in inducing the plaintiff to make the contract; but assuming that there was sufficient evidence to go to the jury upon that question, and that the representation was of that character as, if untrue, would furnish the basis of an action for fraud, and overlooking the fact that the representation proven was oral while the complaint, if it did not in terms allege that it was written, is at least open to the charge of duplicity as leading the defendant so to believe, it is plain that the plaintiff cannot maintain the action for damages for fraud without proof of some damage.

This record suggests no reason to think that the plaintiff would have succeeded any better if the representation relied on had been true. Much less does it show to what extent the failure was due to the alleged fraud. The cause of the failure is left entirely to speculation, except as it may be inferred from the revelation of the plaintiff himself by his own letters. The mere fact that one party has been guilty of wrongdoing does not give the other a cause of action for damages unless as the result of such wrongdoing he has sustained damages. Hutchins v. Hutchins, 7 Hill, 104; Deobold v. Oppermann, 111 N. Y. 531-542, 19 N. E. 94, 2 L. R. A. 644, 7 Am. St. Rep. 760; Jex v. Straus, 122 N. Y. 293, 25 N. E. 478. If the defendant's agent lied to the plaintiff, as the latter claims, it is possible, if such falsehood had been relied upon by the plaintiff, that it might have furnished sufficient ground for the rescission of the contract and the recovery of the money paid, but this question we need not now decide. It is sufficient now to hold that the plaintiff has proven no damages resulting from the alleged fraud.

The defendant's motion for a nonsuit should, therefore, have been granted, and the judgment must be reversed and a new trial granted, costs to abide the event. All concur.

(52 Misc. Rep. 349)

and 136 New York State Reporter

UNDERHILL v. SMITH.

(Supreme Court, Special Term, Erie County. December, 1906.)

1. PRINCIPAL AND AGENT-LIABILITY OF AGENT.

An appraiser of a fire loss, acting under a written appointment of the insured, with knowledge of the provision in the policy that the insured shall pay for the services of the appraiser, cannot as a matter of law recover therefor from an agent of the insured on proof that the appraiser and the agent had, prior to the appointment, a conversation in which the agent stated that he thought he had an appraisal and asked what the appraiser would charge him if given an appraisal, and that the appraiser replied that he would be reasonable with him.

2. COURTS-MUNICIPAL COUrts-Judgment-REVIEW.

Where an appraiser of a fire loss, acting under an appointment of the insured, with knowledge of the provision in the policy that the insured should pay for his services, recovered judgment in the Municipal Court for his services against an agent of the insured on insufficient proof, the Supreme Court on appeal has authority under the express provisions of Code Civ. Proc. 3063, to reverse the judgment as against the weight of the evidence.

Appeal from Municipal Court of Buffalo.

Action by Hiram H. Underhill against John J. Smith. From at judgment of the Municipal Court of Buffalo entered on the verdict of the jury in favor of plaintiff, defendant appeals. Reversed.

Vernon Cole, for appellant.

Charles J. Strong, for respondent.

WHEELER, J. This is an appeal from a judgment recovered by the plaintiff in the Municipal Court of Buffalo upon a verdict of a jury. The action was brought to recover for services rendered as an appraiser of a fire loss, and also for services of an umpire in the same matter, which claim was assigned to the plaintiff. The person sustaining the fire loss was one John Jackewicz, but this action was brought against the defendant, John J. Smith, who represented the assured in adjusting the fire loss. The defense was that the services were rendered Jackewicz, the assured, and that this defendant, who was his agent, did not promise or agree to pay for them.

The policy of insurance, like all standard policies, expressly provided in case of a disagreement as to the amount of loss it should be ascertained by two competent appraisers, the assured and the company each selecting one, and the two so chosen in turn selecting an umpire. The policy further provided that the parties should pay the appraiser respectively selected by them, and bear equally the expense of the appraisal and umpire. The insured and the company, having been unable to agree on the loss in accordance with the terms of the policy, executed a written agreement naming appraisers; Jackewicz naming Mr. Underhill and the company one Schneider as its appraiser. They, in turn, named the umpire. They proceeded in the usual way and determined the fire loss. This action is, as stated, to recover for such services as appraier by Mr. Underhill, and also for the services of the umpire, who has assigned his claim to the plaintiff. The action is not