App. Div.] SECOND DEPARTMENT, MAY TERM, 1902. give title free and clear? A. Yes, sir. Q. That is so? A. Yes, sir." The case presented is, therefore, one where the owner of real estate who is both unable and unwilling to contract for its sale employs a broker to effect its sale, and the latter finds a customer at the stipulated price. Under such circumstances the owner cannot escape liability because the purchaser refuses to accept an option instead of an absolute contract of sale. Had the purchaser refused to buy unconditionally the broker employed to sell could not recover his commissions, and the converse must be true where the fault is wholly that of the vendor. (See Condit v. Cowdrey, 123 N. Y. 463, and Condict v. Cowdrey, 139 id. 273.) The duty of the broker is complete when he finds a purchaser able and willing to purchase upon the seller's terms, wholly irrespective of whether or not a written contract is finally executed. (Barnard v. Monnot, 3 Keyes, 203; Brady v. Foster, 72 App. Div. 416.) If the defendant was only willing to sell conditionally or to give an option upon the property, good faith required that she should have so notified the plaintiff. When, instead of this, she employed him to effect a sale, she rendered herself liable to the payment of his commissions on the procuring of a purchaser. In Mooney v. Elder (56 N. Y. 238) it was held that plaintiff was enti tled to his commission upon the production of a purchaser, ready and willing to purchase upon defendant's terms, although defendant was unable or refused to consummate the contract. The fact that the parties herein agreed that the commissions should not be payable until the deed was delivered is not material. By refusing to contract to give a deed the defendant prevented the sale from being completed, and his liability at once attached. As was said by Judge FINCH in Sibbald v. Bethlehem Iron Company (83 N. Y. 378, 383): "If the efforts of the broker are rendered a failure by the fault of the employer; if capriciously he changes his mind after the purchaser, ready and willing, and consenting to the prescribed terms, is produced; or if the latter declines to complete the contract because of some defect of title in the ownership of the seller, some unremoved incumbrance, some defect which is the fault of the latter, then the broker does not lose his commissions. And that upon the familiar principle that no one can avail himself of the SECOND DEPARTMENT, MAY TERM, 1902. [Vol. 72. non-performance of a condition precedent, who has himself occasioned its non-performance." The judgment should be reversed. All concurred. Judgment of the Municipal Court reversed, and new trial ordered, costs to abide the event. JOHN MOVEIGH, Respondent, v. CLAUDE V. GENTRY, Appellant. Municipal Court of New York city — jurisdiction of an action by a husband for loss of services of his wife from the error of a druggist — proof of the wife's intoxication as bearing on her credibility. The Municipal Court of the city of New York has jurisdiction of an action brought by a husband against a druggist, who sold to him carbolic acid for chloroform liniment, in consequence of which his wife's body was burned, to recover damages for the expenses incurred by him for medical aid and nursing and for the woman's incapacity to perform duties as a housewife. In such an action, the defendant is entitled, upon the cross-examination of the plaintiff's wife, to ask her whether or not she had been drinking or was under the influence of liquor on the occasion of the accident, as such questions involve the credibility of her testimony. The expression the "loss of society of a husband or wife," used in subdivision 2 of section 1364 of the Greater New York charter (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466), conferring jurisdiction upon the Municipal Court of An action to recover damages for a personal injury or an injury to property, excepting, however, actions to recover damages for an assault, battery, malicious prosecution, false imprisonment, libel, slander, criminal conversation, seduction or loss of society of a husband or wife, where the sum claimed does not exceed five hundred dollars," applies only to actions founded upon an intentional injury to the consortium, and not to one based upon an unintentional act which may result in the loss of services or society. APPEAL by the defendant, Claude V. Gentry, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on the 20th day of November, 1901, upon the decision of the court. George C. Case, for the appellant. Theodore H. Lord and Daniel W. Patterson, for the respondent. App. Div.] SECOND DEPARTMENT, MAY TERM, 1902. The plaintiff complains that the defendant, a druggist, sold and delivered to him carbolic acid for chloroform liniment, and that his wife's body was burned by it. He sues for damages for his expenses due to medical aid and nursing, and to the woman's incapacity to perform duties as a housewife. At trial, the learned counsel for the defendant raised the question of jurisdiction upon the exception contained in subdivision 2 of section 1364 of the Greater New York charter (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466). This section reads: "Except as provided in the next section, the said municipal court has jurisdiction in the following civil actions and proceedings, including an action against the City of New York or a domestic corporation or a foreign corporation having an office in the City of New York: * * * "2. An action to recover damages for a personal injury or an injury to property, excepting, however, actions to recover damages for an assault, battery, malicious prosecution, false imprisonment, libel, slander, criminal conversation, seduction or loss of society of a husband or wife, where the sum claimed does not exceed five hundred dollars." I am of opinion that the expression "loss of society of a husband or wife" applies only to actions founded upon an intentional injury to the consortium, and not upon an unintentional act, as of negligence, which may result in the loss of services or society. I see no good reason why the court should have jurisdiction of actions based upon negligence, and yet be excluded from such an action because loss of services or of society constitute an element of damage resulting from the negligence. An application of the principle of noscitur a sociis to the antecedent words "criminal conversation, seduction," would also lead to this conclusion. The plaintiff does not complain of a "loss of society," but that the accident prevented or will prevent his wife from performing her customary duties as a housewife. He does not refer to marital duties, inasmuch as he alleges that since the accident she has lived and cohabited with him. Even if the allegation were susceptible of such a construction there is authority for recovery based upon such a loss as that of society. (Jones v. Utica & Black River R. R. Co., 40 Hun, 349.) In this case, FOLLETT, J., said: "We have been unable to find an exact or SECOND DEPARTMENT, MAY TERM, 1902. [Vol. 72. Damages an approximate definition of the term 'loss of society.' for this cause have been more frequently assessed in cases arising from intentional injuries to marital rights, * * "Loss of services" is a basis for an action in negligence (Filer v. N. Y. Central R. R. Co., 49 N. Y. 47, 56; Zingrebe v. Union Railway Co., 56 App. Div. 555; Butler v. M. R. Co., 143 N. Y. 417), and this case is supported by the familiar doctrine of Thomas v. Winchester (6 N. Y. 397). I think, however, that the learned court erred in rulings upon the evidence. The only direct testimony as to the occurrence was given by the plaintiff and his wife. She was asked, upon cross-examination, whether she had taken any liquor that day, or whether she had been taking stimulants on the evening of the occurrence, or whether she was not under the influence of liquor when her husband brought in the liniment, or whether she was so under the influence of liquor at the time of the accident, and from that time until the doctor came, as not to know what she was doing. This testimony was excluded as immaterial. I think that the questions went to the credibility of the witness, for if it had appeared that she was drunk at the time, that might involve, quite plainly, questions of her ability to testify, or of the value to be given to her version. (Joyce v. Parkhurst, 150 Mass. 243 ; Stillwell v. Farewell, 64 Vt. 286.) The judgment should be reversed and a new trial ordered, costs to abide the final award of costs. All concurred. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event. Cases DETERMINED IN THE FOURTH DEPARTMENT IN THE APPELLATE DIVISION, May, 1902. HENRY HAMLIN, Appellant, v. JOHN B. SMITH and SAMUEL F. OOSTERHOUDT, as Executors, etc., of SAMUEL OOSTERHOUDT, Deceased, and Others, Respondents, Impleaded with the FIRST NATIONAL BANK OF OLEAN, Appellant. Statute of Limitations — effect of payments by executors on claims against the estate — payments made by executors with the consent of all parties in interest on claims barred by the statute-right of subrogation, of parties advancing money to the executors, to the claims paid therewith. Partial payments made by executors upon a promissory note, which was a valid claim against the testator's estate at the time of his death and at the time when such payments were made, will prevent the Statute of Limitations from running against the note for a period of six years from the time of each payment. Where executors apply moneys borrowed upon their promissory note to the payment of valid claims against the estate, the note is a personal liability of the executors and cannot be enforced against the estate directly. In such a case the executors are entitled to be reimbursed out of the estate to the extent of the borrowed moneys which they have applied to the payment of valid claims against the same, and this being so the person who advanced the moneys is entitled, in the event of the failure of the executors to repay the same, to be subrogated to the rights of the executors and to compel payment of his claim out of the estate. Where the executors, with the consent of the adult beneficiaries under the will, pay a claim against the estate which was known to all parties to have been barred by the Statute of Limitations, with moneys borrowed for that purpose and give their promissory note to the lender, the money so loaned is not a valid obligation against the estate, but is a valid obligation against the beneficiaries on whose behalf it was borrowed in proportion to the amount which each has received from the estate. |