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FIRST DEPARTMENT, MARCH TERM, 1899. [Vol. 38. lature was prohibited from establishing a local court of record, nor could it confer upon any local court of its creation any equity jurisdiction, and then, in order that it might not give such courts general jurisdiction in actions at law, the Constitution restricted the jurisdiction which might be conferred in other respects to that which was conferred upon County Courts by the instrument.

It cannot be that after using language which was well understood and had been distinctly interpreted to give the Legislature the right to establish inferior local courts as part of a new system of government, it was intended to restrict that power by reference to the territorial jurisdiction conferred upon County Courts, but rather to restrict their jurisdiction as to subject-matter and persons and not as to locality. Such a construction is not only reasonable, but harmonizes all the parts of this provision of the Constitution. It is a wellestablished rule of constitutional construction that a statute can be declared unconstitutional only when it can be shown beyond reasonable doubt that it conflicts with the fundamental law, and until every reasonable mode of reconciliation of the statute with the Constitution has been resorted to and reconciliation has been found impossible, the statute will be upheld. (People ex rel. Henderson v. Supervisors, 147 N. Y. 1.)

There might perhaps be some force in the argument that the framers of the Constitution had in mind the territorial jurisdiction of the County Courts, if county lines were immutable and were not the subject of change at the will of the Legislature. County lines have no more dignity than, and are as subject to the action of the Legislature as, any of the other territorial divisions of the State, such as towns, villages and cities. In the case last above cited the court expressly held that the power of the Legislature to erect new counties, although not conferred by any express grant, is implied in the prohibition in section 5, article 3, relating to members of Assembly, that no new county shall be hereafter erected unless its population shall entitle it to a member. (People ex rel. Henderson v. Supervisors, supra.) In that case a new county had not been created, but a part of Westchester county had been taken and annexed to the city and county of New York. The Legislature thus having the power to consolidate counties under the Constitution as framed, it is apparent that, by the restrictions to jurisdiction


App. Div.] contained in the section under consideration, territorial limitations. were not intended.

At the time that the Constitution in question was framed, the subject of the consolidation under one municipal government of the counties of New York, Kings, Richmond, part of Queens and part of Westchester was being agitated, and an act had been passed by the Legislature requiring the submission of this proposed consolidation at the same time when the Constitution then being framed should be submitted for adoption. The framers of the Constitution must, therefore, have had in mind the possibility of the organization of this new city and that as a part of the local government of such new corporation a local court must be established; and it would be unreasonable to suppose that they intended to prohibit the establishment of a court which had been held by the highest court of the State to be one of the functions of said local government unless such intention was manifested by unequivocal and unmistakable language.

It is possible, as we think has been shown, to give full effect to all the limitations embraced by the article in question without nullifying the power conferred by the 1st paragraph of the section as interpreted by the court of last resort.

It may be that in the act creating the Municipal Court jurisdiction may have been attempted to be conferred which contravenes the Constitution, but there is no infirmity in the scheme creating the court which renders the whole of the provision in respect thereto void and of no effect.

The judgment should be affirmed, with costs.

BARRETT, RUMSEY, INGRAHAM and MCLAUGHLIN, JJ., concurred. Judgment affirmed, with costs.


[Vol. 38.


Contract for the sale of several chattels — when entire-recovery for its breach.

A contract embraced in a letter, stating "I have sold you a spider phaton for $475, a brougham for $450, a sleigh for $175, total, $1,100, with the understanding that, upon resale by you of the spider phæton, you are to pay me at once $550 cash, or, on sale of the brougham, $500 cash. The balance of the money ($550 or $600, respectively) to remain with you and be used up either in the purchase by me of carriages or repairs thereof," is a contract for the sale of the three vehicles for $1,100, and not a sale of each vehicle separately; and where the vehicles are delivered and the phaton has been sold by the vendee, on account of which he has paid only $300.80, the entire sum of $1,100 becomes due and payable, and the vendor is entitled, in an action to recover damages for the breach of the contract, to recover such sum of $1,100, less the amount actually paid.

MOTION by the defendants, Eugene Corbett and another, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury in favor of the plaintiff rendered by direction of the court.

Paul E. De Fere, for the plaintiff.

Max Steinert, for the defendants.


The action is for damages for the breach of a contract with respect to the purchase and sale of three vehicles. This contract is embodied in a letter from the plaintiff to the defendants which reads as follows:

"104 EAST 37TH STREET,) NEW YORK, May 9th, 1894. j


"DEAR SIRS.-I have sold you a spider phaæton for $475, a brougham for $450, a sleigh for $175, total $1,100, with the understanding that upon resale by you of the spider phæton you are to pay me at once $550 cash, or on sale of the brougham $500 cash. The balance of the money ($550 or $600 respectively) to remain with you and be used up either in the purchase by me of carriages or repairs thereof. In case you shall not have sold either

App. Div.]


the phaton or the brougham in time to give me a check on or before May 16th, you will please, when the payment is to be made, make it for my account to Speyer & Company, Mills Building. "Please acknowledge correctness of this and oblige,

"Yours truly,


It is averred in the complaint, and admitted in the answer, that the plaintiff delivered to the defendants one of these vehiclesthe phaton. It is also averred that the plaintiff tendered to the defendants the other two vehicles, but that the defendants refused to receive, accept or pay for them, and refused to further execute the agreement or to fulfill the terms and conditions thereof. This averment is denied in the answer. Upon the trial the plaintiff proved that he did more than tender the two other vehicles. He in fact delivered them. His coachman testified without contradiction that when the contract was made Corbett asked him "to leave the carriage at the plaintiff's stable until the plaintiff's lease expired;" and they were accordingly left there. Corbett testified that, when he received the letter which constitutes the contract, he called on the plaintiff, and the latter informed him that he could use the stable until such time as he (Corbett) eventually could take the carriages to his shop. There was thus in effect a delivery of the carriages under the contract. They remained thereafter in the plaintiff's stable as the defendant's property - the plaintiff being but a gratuitous bailee thereof. The evidence on the latter head was introduced without objection. No point was made of a variance between the allegations of the complaint and the proofs. The case was tried upon these proofs and determined upon their legal effect. The only point made by the defendants was that the plaintiff had failed to prove a cause of action. The transactions referred to occurred in May, 1894, and the vehicles remained in the plaintiff's stable until July, 1894, when the defendants removed the spider phaton, which they had sold to one Bishop. Upon this latter sale the defendants became bound under the contract to pay the plaintiff "at once $550 cash." They failed to make this payment. It was not until the sixteenth of the following October that they made any payment, and then they paid but $300.80 upon account. That, in fact, is all they


[Vol. 38.

have ever paid. They were told by the plaintiff's agents that they could have the other two vehicles when they paid the balance of the $550. After many unavailing requests for this balance the plaintiff sold these other two vehicles, realizing as the net proceeds of the sale $186.75. He credited the defendants with the latter sum on account of the total amount of $1,100, payable under the contract. He also credited them with $32.10 for certain repairs which they had made to some broughams of his. These two sums, with the $300.80 paid upon account of the $550, aggregate $519.65. Deducting the latter sum from the $1,100 we have a balance of $580.35. For the latter sum, with interest, in all $697.77, the learned trial judge directed a verdict for the plaintiff.

There was no disputed question of fact, and the parties respectively requested a direction. Their requests were general and specified no grounds. Whether the direction was correct depends, therefore, upon the proper construction of the agreement. All the vehicles having been delivered, the right to payment depended upon the terms of this agreement. That right is not affected by the plaintiff's conversion of the vehicles. The defendants interposed no counterclaim for such conversion, and they cannot well object to the credit which the plaintiff has chosen to give them as the result thereof. The contract having been performed on the plaintiff's part by the delivery of all the property, what were the rights of the respective parties thereunder with regard to payment? We think the true construction of the contract is that there was a sale of the three vehicles for $1,100. It was not a sale of each vehicle separately. It is true that the price of each vehicle is specified, but that was merely an indication of the process by which the price of $1,100 for the entire three was reached. This is plainly evidenced by the context. If the intention had been to sell each vehicle separately it would have been quite unnecessary to add the words and figures, "total, $1,100." It will be observed, too, that the payments upon a resale have no relation to the price of any one vehicle. If, for instance, the spider phæton is sold, the defendants are to pay, not $475, but $550. So, if the brougham is sold, they are to pay, not $150, but $500. What, in case of any such resale and payment, is then to be done? "The balance of the money" ($550 in the one case, $600 in the other) is to remain with the defend

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