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yet in such a case questions of taste and personal convenience do not enter. How much more reason, therefore, is there for enforcing a lease contract to the letter, when a prospective tenant may have been influenced to take an apartment by the presence therein of any one of a number of things that another person, or 12 jurymen, might.consider of no importance, or even regard as an eyesore or a useless incumbrance. It is probably true that the absence of some trifle, some article of such little consequence that it could be stated, as matter of law, that no reasonable man could say that its presence or absence could possibly have affected the making of the bargain, may in a proper case be disregarded, upon the principle de minimis; but I think it is plain that the invocation of that doctrine is not permissible here, in view of the nature of the articles concerning which the controversy has arisen, and, moreover, the trial court did not submit the case to the jury upon any such theory.

The doctrine of substantial performance is a rule of practical necessity, designed to prevent the unjust enrichment of one party, or the imposition of undue and needless hardship upon the other, and it relates primarily and ordinarily to building contracts, although it is infrequently extended by analogy to other contracts for the furnishing of things not in esse in their final form when the agreement calling for their production is made. The reason for the rule is plain and needs no statement here. In such a situation as is presented by the instant case, there is no reason why the rule should apply. The defendant was not to cause the production of anything. He was merely to leave in the apartment what was there when the plaintiff hired it. Furthermore, in cases where the substantial performance doctrine does apply, the burden is upon the party relying upon substantial in lieu of complete performance to show, so that it may be deducted from the contract price, the money equivalent of the part not performed. Spence v. Ham, 163 N. Y. 220, 57 N. E. 412, 51 L. R. A. 238. Here there was no pretense of following that rule.

For the reasons stated, I vote for reversal.

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(Supreme Court, Appellate Division, Third Department. March 16, 1917.) 1. APPEAL AND ERROR 1184-REMAND-FILING OF REMITTITUR-FURTHER APPEAL-HARMLESS ERROR.

That the record does not show that the remittitur was filed and an order entered by surrogate, making the decision on appeal the decision of his court, presents no reversible error, and it will be ordered filed nunc pro tunc.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4407, 4635.]

2. EXECUTORS AND ADMINISTRATORS 337-SALE OF LAND TO PAY DEBTSCITATION-ORDER OF COURT.

In a proceeding for sale of a deceased debtor's land for the payment of his debts, a citation issued to unknown creditors is valid, although the For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

order for publication is contained in the order that a citation issue, and is not made separately and after such order.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. 88 1397-1409.]

3. EXECUTORS AND ADMINISTRATORS 337-CITATION TO UNKNOWN CREDITORS -AFFIDAVIT AND ORDER.

When a citation is to be served only on unknown creditors, it is unnecessary to state in affidavit or order that deposit in the post office or delivery without the state is dispensed with.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 1397-1409.]

Cochrane, J., dissenting.

Appeal from Surrogate's Court, Warren County.

In the matter of the application of William J. Reed, as creditor of Henry M. Bailey, deceased, for permission to sell real estate to pay debts. From a decree for petitioner, Frances H. Stoddard, administratrix, and another, appeal. Affirmed.

See, also, 171 App. Div. 22, 156 N. Y. Supp. 944; 214 N. Y. 383, 108 N. E. 565; 218 N. Y. 711, 113 N. E. 254.

Argued before KELLOGG, P. J., and LYON, WOODWARD, COCHRANE, and SEWELL, JJ.

Charles H. Stoddard, of New York City, for appellants.
Beecher S. Clother, of Glens Falls, for respondent.

JOHN M. KELLOGG, P. J. Most of the questions urged by the appellants have already been decided against them in this case, by this court and the Court of Appeals. The proceeding was to sell the real estate of the decedent for the payment of his debts. Mrs. Stoddard was the administratrix, and she and her sister were the only heirs at law and next of kin. She is the wife of the appellant's attorney and the mother of the other appellant. Mrs. Stoddard, personally and as administratrix, and her sister, contested upon the hearing the allegations of the petition. A full hearing was had before the surrogate, and he made a final decree directing the mortgaging of the real estate for the payment of the debt due to the petitioner. The record shows there were no other creditors. Upon appeal to this court the decree was unanimously affirmed. 159 App. Div. 931, 144 N. Y. Supp. 1142. Upon appeal to the Court of Appeals (214 N. Y. 383, 108 N. E. 565) the order was reversed, upon the ground (not raised before) that, a notice requiring creditors to present their claims not having been published, the citation must be issued generally to all other creditors of the deceased, as well as to the creditors named. The decision was:

"The order should be reversed, and the matter remitted to the Surrogate's Court, to the end that service of the citation may be made upon the creditors. The proceedings prior to the date of the surrogate's decision may stand, however, in full force and effect as against all parties heretofore served with the citation, and the costs in the Appellate Division and in this court will abide the final award of costs to be made by the surrogate."

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Thereafter, upon the return of a citation issued to all of the creditors, Mrs. Stoddard, as administratrix, filed an answer substantially like their previous answer, and Blanche T. Bechoff, the daughter, appeared by her father as attorney and filed an answer, and produced an unrecorded deed purporting to be made by her mother to her June 7, 1910, acknowledged before the father on that day, with a certificate of the county clerk attached, dated July 8, 1915, a few days prior to that hearing. She sought to put the deed in evidence and to contest again all the matters that had been decided by the previous decree and the decisions upon appeal. The surrogate refused to receive the deed and struck out her answer, upon the theory that her rights, if any, were subject to the decree, and that the hearing under the remittitur was limited to the creditors. The surrogate refused to retry the issues. Upon appeal to this court (171 App. Div. 22, 156 N. Y. Supp. 944) the decision of the surrogate was affirmed, and in the opinion we reviewed the history of the case, and among other things said:

"The attorney did not explain why he appeared for the mother as heir at law, and a half owner of the real estate sought to be sold, when he knew that that interest belonged to the daughter by the deed acknowledged before him. There was no suggestion that the daughter did not know of the former trial, and of all the proceedings in the case. The surrogate had the right to infer that she did know, when she came into court upon the arms of her father and mother, who had deceived the court if the daughter's position is true, and he was justified in striking out her answer and assuming that it was another step to protract unnecessarily the litigation. If she had kept silent, knowing that her mother was engaged in the trial before the surrogate and carrying on the appeal as an heir and the owner of a part of the real estate sought to be partitioned, justice required that she should not be heard. The surrogate had the right to assume that such was the fact until an explanation of the peculiar situation was offered."

Upon appeal to the Court of Appeals (218 N. Ý. 711, 113 N. E. 254) the decree was reversed upon the ground (then taken for the first time) that it did not appear that any order had been made for the service of the citation by publication, and therefore the service to the creditors directed by the former decision had not been made. We quote from the opinion (218 N. Y. page 712, 113 N. E. 254):

"The other objections to the order made by the appellants seem to us untenable and they do not require consideration. The order appealed from should be reversed, and the matter again remitted to the Surrogate's Court, to the end that service of the citation may be properly made upon the creditors. The proceedings prior to the date of the surrogate's decision, reviewed on the former appeal, may stand, however, in full force and effect as against all parties heretofore served with the citation, and the costs in the Appellate Division and in this court will abide the final award of costs to be made by the surrogate."

A motion for reargument was made in behalf of the appellants and denied by the Court of Appeals. We quote the decision (219 N. Y. 543, 113 N. E. 1065):

"Motion for reargument denied. Nothing in our decision concludes the appellant Blanche T. Bechoff from proving that a deed has been delivered to her, and thereby making herself a party to the proceeding."

When the matter came before the surrogate after that decision, the deed was again offered in evidence by Mrs. Bechoff, and a similar answer interposed. The mother again interposed an answer similar to her former answer. The mother and daughter swore that the deed was

delivered at about its date. The husband's testimony as to the transaction with reference to the deed between the mother and daughter was excluded, and the answer stricken out, the deed rejected, and a final decree was again made for the mortgaging of the property.

As we interpret the decision of the Court of Appeals, it does not require that the surrogate reconsider his decision in rejecting the deed and striking out the answer of Blanche T. Bechoff. It means that the decision of the Court of Appeals shall not interfere with the right of the appellants to bring that matter before the surrogate for his consideration. It is left with the surrogate to determine, in his discretion, whether in the interests of justice he will reopen that matter and have a rehearing upon that subject, for the former decision in 218 N. Y. 711, 113 N. E. 254, holds that, as to the objections made to the order by the appellants, other than that upon which the reversal rested, they were untenable, and do not require consideration. It was a direct question before that court whether or not Mrs. Bechoff had been deprived of any legal right by the decision of the surrogate in rejecting her deed and striking out her answer. There was no attempt made by Mrs. Bechoff before the surrogate to show that she did not know of the first trial, or that she did not purposely conceal her deed. She made no attempt to show her good faith or to excuse her default. It would naturally be inferred that she had some knowledge or information concerning the protracted litigation carried on by her father and mother. with reference to her property. Holding under a secret deed, if she wanted to be heard, it was for her to show that she had acted promptly and that she did not suffer the proceedings to go on upon the assumption that the mother was the owner when she knew that she herself was. If the deed was valid, of course the father and the mother were guilty of an intentional fraud upon the court, and did not stand in good favor in that respect. The surrogate has held that the mother was the owner of a half interest in the property, and we approve of that finding.

The appellant's attorney has not taken warning from the Matter of Charles H. Stoddard, 165 App. Div. 902, 149 N. Y. Supp. 585, but seems willing to resort to any practice to carry his ends. We cannot believe that, if the daughter had owned the half interest, he and the mother would have committed a fraud upon the court and carried on the litigation in the name of the mother rather than the daughter. They stand discredited before the court, and we find as a fact that the deed was not delivered until after the first decree made by the surrogate. Every question sought to be raised by Blanche T. Bechoff as to the deed and the answer had been decided against her by the court and the Court of Appeals. The surrogate did not abuse his discretion in refusing to permit her to retry the issue already tried. The deed may be valid between her and her mother, subject to the provisions of the decree; but the premises are not to be sold. The decree provides that they may be mortgaged, and while, perhaps, it would have been better to have left her answer in the case, we cannot see that she is prejudiced by its omission. The surrogate found that she asked to be made a party, but refused to find that her application was denied. She was in fact treated as a party, the surrogate holding that the answer did not affect the issues tried.

[1] After the last decision by the Court of Appeals the remittitur went to the appellants' attorney. He refused to file it, but by order of court was required to file it. The record does not show that the remittitur was filed, or that an order was entered by the surrogate making the decision of the Court of Appeals the decision of his court. We need not discuss whether the appellants are in a position to urge that the surrogate had no jurisdiction because the remittitur was not filed. It is sufficient to say that no reversible error has been presented in that respect, and that an order may now issue requiring it to be filed. nunc pro tunc. Chautauqua County Bank v. White, 23 N. Y. 347.

[2, 3] The appellants now urge the objection that the order for publication was contained in the order that a citation issue, and that such an order cannot be made until after the citation has issued. Here the record shows that there were no other creditors, but that it was necessary to publish against unknown creditors, and the matter was remitted to the surrogate for service. It is a purely technical objection that a citation must first issue to unknown creditors, and after that another order must be made directing how it shall be served. The order requires the service to be made by publication as therein stated, and says "that such service shall be sufficient service." When a citation is to be served only on unknown creditors, it is unnecessary to say in the affidavit or in the order that deposit in the post office or delivery without the state is dispensed with, because the very theory upon which publication is here granted is that the persons are entirely unknown and cannot be otherwise described than as unknown creditors.

We conclude that as matter of substance the decree is right, and that the objections thereto are purely technical, and should be overruled, and do not affect the substantial rights of the parties. The petitioner should be paid and there should be an end to the litigation. The decree should be affirmed, with costs.

This court finds as a fact that the alleged deed to Mrs. Bechoff was made and delivered after the first decree was made by the surrogate, and that her rights under said deed are subject to said decree; that her mother, her father, and herself are discredited by the history of the case and their conduct in it, and if the evidence of the father and mother had been received with reference to the deed it could not have changed the result.

The court directs, as a part of its decision, that the surrogate enter an order nunc pro tunc making the decision of the Court of Appeals the decision of his court. All concur, except COCHRANE, J., who dissents.

ROSENTHAL v. FINKELSTEIN et al.

(Supreme Court, Appellate Term, First Department.

TROVER AND CONVERSION 47-DAMAGES RETAIL VALUE.

March 8, 1917.)

In an action by a jobber of bicycle supplies to recover for the conversion of bicycle bells shipped to him, the measure of damages is not the retail value, but the price at which plaintiff could replace the goods, which presumably is the price he agreed to pay for them.

[Ed. Note. For other cases, see Trover and Conversion, Cent. Dig. §§ 205, 268, 272.]

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