Louis Duschnes, Appellant, v. Julius M. Heyman, as Executor, etc., of Julia Heyman, Deceased, Respondent

Louis Duschnes, Appellant, v. Julius M. Heyman, as Executor, etc., of Julia Heyman, Deceased, Respondent. •Contract—promise to pay when certain money is received and when certain notes are collected — obligation created thereby — where an answer contains a general denial the plaintiff must prove his case. • ■ An action was brought against Julia Heyman, since deceased, upon a contract by which she agreed to pay Hattie S. Simm, from and after December 5, 1893, the sum of §25 a week out of §100 a week which George W. Venable had agreed to pay Julia Heyman in the period from October 5, 1892, to September 31, 1893; and further to pay §200 on March 28, 1894, as one- . fourth of the amount which Julia Heyman had received from George W. Venable between October 5, 1892, and December 5, 1892; and further to pay one-quarter of two notes of George W. Venable, each for §5,000, one payable in September, 1893, and the other in March, 1894, as soon as the notes were paid. The complaint alleged a breach of the contract in that Julia Heyman did not pay the twenty-five dollars per week nor one-quarter of the two notes of George W. Venable. The answer of the defendant admitted the making of the agreement and that Julia Heyman had received a notice requiring her to enforce her agreement with, and her notes against, George W. Venable,, and denied all the other allegations of the complaint. It also stated as an affirmative defense that Julia Heyman had received certain moneys from George W. Venable which had been disposed of as stated in the answer, but there was no admission that the money in question was received from George W. Venable under the contract ple.aded in the complaint. It was admitted upon the trial that the §200 due March 28, 1894, had been paid. Held, that no cause of action was established; That the payments to be made by Julia Heyman were contingent upon her receiving from George W. Venable the §100 a week and the money secured by the notes, and the complaint did not allege that she had received any moneys from him; That Julia Heyman had not agreed to collect the money covered by the contract from George W. Venable, and she could only be put in default for a breach of her contract if she refused to collect them under such circumstances as would enable the plaintiff to establish negligence on her part which deprived him of the benefit of the contract; That it did not appear that Julia Heyman had refused to collect the notes or that any loss had accrued because the moneys had not been collected; That the affirmative defense in which it was stated that certain money had been received from George W. Venable could not avail the plaintiff, as it was not stated that the money was received under this contract, and for the further reason that where a general denial is interposed the plaintiff must prove his case. Appeal by the plaintiff, Louis Duschnes, from a judgment of the Court of Common Pleas for the city and county of New York, entered in the office of the clerk of said court on the 14th day of October, 1895, upon the decision of the court, rendered after a trial at a Special Term thereof, dismissing the plaintiff’s complaint, and also from an order entered in said clerk’s office on the 14th day of October, 1895, dismissing the plaintiff’s coniplaint and ordering that judgment be entered accordingly. Edward W. & Johnston, for the appellant. John Frcmkenheimer, for the respondent. [MAJORITY — Rumsey, J.:] Rumsey, J.: This action was brought against Julia Heyman in her lifetime, and, after her death, the defendant, as her executor, was substituted in her stead. The foundation of the action was a contract entered into. between Mrs. Heyman, the defendant, and her daughter, on the 11th day of January, 1893. That portion of the contract which is material is as' follows: “ The said Julia Heyman agrees to pay said Hattie S.. Simm (née Heyman), from and after December 5, 1892, the sum of twenty-five dollars per week out of the one hundred .dollars per week which George W. Venable under his agreement with said Julia Heyman, dated October 5th, 1892, is to pay to the latter Until September 21st, 1893, and the said Julia Heyman further agrees to pay to said Hattie S. Simm (née Heyman) the sum of two hundred dollars on March 28 th, 1894, being one-fourth of the amount which said Julia Heyman has received from George W. Venable from October 5th, 1892, to December 5th, 1892, and one-quarter of the two notes of G. W. Venable,. each for five thousand dollars, one payable September 28th, 1893, and the other payable March 28th; 1894, as soon as said notes or either of them are or is paid.” The breach of said contract alleged was that the said Julia Heyman did not pay the sum of twenty-five dollars a week, nor did she pay to the said Hattie S. Simm one-fourtli of the two notes aforesaid, nor any part thereof. It was further alleged in the complaint that the plaintiff served upon Julia Heyman a notice in writing, requiring her to enforce the notes of said Venable and to pay to the plaintiff the proportionate part thereof, as provided by the agreement, and ■ to inform the plaintiff whether or not she had enforced the agreement entered into between Heyman and Venable and whether or not she had ■enforced the two notes, and that said Julia Heyman refused and neglected to enforce the agreement or to enforce the payment of the notes, and that she refused to pay to the plaintiffs the proportionate part thereof as provided for by said agreement. The défendant admitted in his answer the making of the. ágreement and the death of Julia Heyman, and the appointment of himself as executor, and that she had in her lifetime received notice requiring her to enforce the agreement and the notes, and denied each and every other allegation contained in the complaint. The answer contained a further clause which will be considered later. The defendant' by his general denial presented an issue which required the plaintiff to prove all the facts alleged in his complaint, or at least so many of them as would enable him to establish a cause of action at the trial. • Just what cause of action was intended to be relied upon is quife doubtful. The plaintiff does not set up as a breach of the contract the failure to pay the $200 which was to have been paid on the 28th of March, 1894, but upon the trial the payment of that $200 was admitted. Such payment was the only one which was absolutely agreed to be made by Mrs. Heyman. The other payments were contingent upon her receiving from Venable the $100 a week and money upon the notes he had agreed to pay. It is to be noticed that the complaint contains no allegation that any such sums were received and, therefore, it cannot be said to be' an action for the recovery of the money which Mrs. Heyman agreed. to pay. Hor does it contain any allegation that Mrs. Heyman neglected or refused to collect the money or the notes of V enable as to the several sums which had become payable. Indeed such an allegation would not of itself establish'any cause of action because Mrs. Hey-man nowhere agrees to collect these sums of money, and she could only be put in default for a breach of her contract if she refused to collect them under such circumstances that the plaintiff could successfully establish negligence on her part which deprived him of the benefits of the contract. But however faulty the complaint may be, the evidence was still more defective. The plaintiff proved the" making of the contract and the assignment to himself. He then offered'in evidence a letter signed by Mrs. Heyman and dated the 2.6th of February, 1894. This letter was offered and received as stated by counsel to show that the “ only effort made by this woman in order to carry out the agreement, she having the power to enforce these notes, was this proposition which she never carried out.” It was received for that purpose only, as stated by the court. This letter was dated before the last of the notes became due. It expressed a willingness on the part of Mrs. Heyman to pay over a proper proportion of whatever was received, pui-suant to the contract, and looking to a possible default of Venable, it agreed, if such default took place (and it had not then taken place as to the second note, which was not due), to turn over to the plaintiff a proper proportion of certain mining stock which she held as security for the' notes. These facts did not tend in any way to establish a cause of action against Mrs. Heyman, and yet they were all the facts which were made to áppear upon the trial. It was not shown that she had received any money from Tenable ; it was not shown that she might have collected these notes and had refused to do so, or that any loss had accrued to anybody because the notes had not been collected.No proof was made with regard to the mining- stock which she held as security, and there was nothing to show whether it was valuable or not. Indeed, it was of no importance because no allegation was -made about it in the complaint. This was the state of the evidence when the plaintiff closed his case, and upon that evidence there is •no possible theory which will enable the plaintiff to have any recovery in the action. It is said, however, that the answer admits a receipt of certain money from Tenable. But that is not so. - The answer admits nothing. Tt sets up as an affirmative defense that certain- money had been received from Tenable which had been disposed of as therein stated, but there was no proof made upon that subject and there is no allegation or admission that the money was received from Tenable under the contract which was set out in-the complaint. However, ■that is of no importance. When the defendant interposes a general denial to the complaint, the plaintiff is bound to prove his case, and unless he does prove it, he is not entitled to recover in the action. If he may avail himself of affirmative allegations in the answer as admissions of the defendant, which is not conceded, those allegations cannot be extended beyond their fair meaning, and in the answer there was nothing ' to show that the money, the acceptance of which was admitted, was received under this contract, or that it in any way had anything to do' with the facts set up in the complaint, and any suggestion of that kind was negatived by the evidence. The plaintiff was properly dismissed because the complaint established no cause of action either at law or in equity. It is not necessary, therefore, to ■ consider the question argued before us whether the defendant should have pleaded that there was no adequate remedy at law, because, upon the facts shown, there was no right to any remedy whatever. The judgment should be affirmed, with costs. Yah Bbtjht, P. J., Babbett,' O’Beieh and Ihgbaham, JJ.,. concurred. Judgment affirmed, with costs.