Krahner v. Heilman — 16 Daly (N.Y.) 132

Majority

p. 132

Jacob Krahner, Respondent, against John Heilman, Appellant.

(Decided April 7th, 1890.)

Headnote

In an action in a district court an adjournment was taken in order to allow defendant to produce his sureties to justify on an undertaking offered for a removal of the cause, but he failed to appear on the adjourned day, and his default was taken. Subsequently the default was vacated and defendant permitted to defend on depositing the amount of plaintiff’s claim and costs with the court and signing a stipulation to that effect, and the case was thereafter adjourned several times. Held, that defendant by his stipulation and the subsequent proceedings waived his right to a removal.

In an action to recover broker’s commissions for procuring a purchaser for real estate, affirmative proof of the pecuniary responsibility of the proposed purchaser is not necessary to entitle plaintiff to recover, where defendant accepted such purchaser. • ■ :

p. 133

Appeal from a judgment of the District Court in the City of New York for the Fifth Judicial District.

The facts are stated in the opinion,

B. B. Amend, for appellant.

Jacob Levy, for respondent.

The first question raised by the appeal is whether the undertaking filed by defendant and the proceedings thereon required the removal of this cause to this court for trial. The defendant upon the return day of the summons offered an undertaking which was rejected, but leave to file another undertaking was granted and an adjournment .had for the production of sureties to justify. The undertaking was filed, but upon the adjourned day defendant did not appear with the sureties, his default was taken, and judgment .rendered in plaintiff’s favor. This judgment was subsequently vacated and the default opened and the defendant permitted to come in and defend, upon the deposit by him of the amount of plaintiff’s demand, with costs and interest, with the clerk of the district court. A stipulation to that effect was signed and an order entered thereon. The trial of the cause was adjourned thereafter from time to time ; when it finally came on for trial defendant produced the sureties upon his undertaking and required the justice to make an order removing the cause. This was refused.

The defendant undoubtedly waived his right to remove the cause, by his stipulation and subsequent proceedings, all which were inconsistent with the position he afterwards assumed that the proceeding to remove was still pending. •His acceptance of a stipulation to come in and defend upon the merits, after his.default, would have been a waiver. If the stipulation had gone no farther than to open the default in failing to produce his sureties for justification, he would have been restored to his rights as they existed at the instant of the default, and such rights were to have his sureties jus

p. 134

tify and his undertaking approved. Until the undertaking was disposed of, the justice could do nothing; but the defendant could waive the- duty imposed upon the justice by the filing of the undertaking, and could give him power to proceed with the cause (Hogan v. Devlin, 2 Daly 184 ). A stipulation to come in and defend upon the merits was an abandonment of the proceeding to remove; so was the payment into the district court of the amount of the claim, costs, and interest, under the stipulation requiring it, for this was tantamount to a submission of the controversy to that court, or to an expression of an intention to try it there; so likewise was the adjournment "of the trial of the cause from time to time. There was a clear waiver of the right to remove, and the justice had power to try the cause.

We cannot disturb the judgment upon the facts or the law. The plaintiff’s case was clearly proved. His assignors, Krakower & Robinson, real estate brokers, were authorized, •according to the testimony of ICrakower, to sell the defendant’s house and-lot in Norfolk Street for $26,000, and having found a person who expressed her willingness to take it at that .price, introduced her to defendant, who accepted her as a purchaser, but afterwards declined to execute a contract with her. No proof of the pecuniary responsibility of the proposed purchaser was offered, but the legal presumption is that she was solvent and able to perform the contract she was willing to make. Besides, the defend ant said he was satisfied to sell to her. The meeting of the minds of the parties was thus proved. The defendant, his wife, his son, and another witness contradicted the testimony of plaintiff’s assignor ICra"kower (the sole witness on plaintiff’s behalf), but there were circumstances that 'the justice had a right to consider in weighing their testimony, and his finding in favor of plaintiff’s splitary witness cannot be disturbed.

Larremore, Ch. J., and Bischofe, J., concurred. Judgment affirmed, with costs.