Lakowschowsky v. Utopia Land Co.

MacLEAN, J. Reconsideration of this cause, following the filing of an opinion on May 8, 1908, by the Appellate Division, in an appeal in an action between the same parties, leads as before to the conclusion that the complaint herein was properly dismissed. Under their con-' tract the individual plaintiff assumed certain obligations, as well as ’did the corporation defendant. Neglecting his own obligations, he wants back the money pronounced forfeit under the contract, on the suggestion, not made at the trial, whereat he put in his evidence of the facts, nor upon" the argument, that the defendant, after the relations between the parties had been fixed, had let it go out of its power [471] to perform. The refusal of the defendant to receive certain installments did not constitute breaches of the contract, nor may inability on its part to perform when the time for performance arrives be inferred from the. statements of the plaintiff’s wife that the secretary of the defendant said, “I cannot take the money because the company is in trouble,” or that of another woman, responding to a query of the court as to whether she heard the secretary say anything about forfeit, “Yes, he said ‘forfeited’ in English; but explained afterwards that the company was ‘busted.’ ” Were there recognized authority for translating these expressions into admissions of insolvency or bankruptcy, the fact would remain, as found, that the plaintiff defaulted in payments according to the terms of the contract, and therefore he may not claim as for a breach by the defendant. Furthermore, to meet a proposition also advanced, .it may be observed that the learned trial justice sitting without a jury had to determine for himself, pass upon in the first instance the credence to be given to the women’s statements, and so was not bound, on the plaintiff’s resting provisionally, to presume therefor the inference most favorable to the plaintiff, and thereafter resubmit, as it were, consideration of the same statements to himself when both sides had rested. The plaintiff had, of course, to establish his contention of facts to the satisfaction of the trial justice. The case containing no statement of the conclusion of fact, the defendant is entitled to the inference most favorable to it in support of the judgment. Viele v. Troy & Boston R. R. Co., 20 N. Y. 184, 186. Judgment affirmed, with costs. GILDERSLEEVE, P. J., concurs.