126 N.Y.S. 249 | N.Y. App. Div. | 1910
The defendant Eemmel appeals from a judgment in favor of plaintiff, entered upon a verdict, and from an order denying his motion for a new trial, and the plaintiff appeals from so much of the judgment as dismisses her third cause of action!
The plaintiff sues as assignee of one William Alton, Jr., and has recovered a judgment for the sum expended by said Alton in procuring' to be made a survey for a proposed railroad, for which, as it is alleged, the appellant and the defendant Eose promised to reimburse him. It appears that the appellant was president and Bose treasurer of a corporation known as the Arkansas Anthracite Coal
Plaintiff also seeks to sustain.the judgment because, as she says, defendants accepted and used a part of the survey. It appears that a part of the projected line of railroad ran through a certain pass .as to which it was desirable to secure a pre-emptive right." It wras apprehended that some other projected railroad company might file a map and profile and thus gain an advantage. The defendant Rose, in October, 1906, wrote to Alton pointing out the desirability of filing a survey, to secure the right to use this pass, and suggesting, though not requesting, that copies of the map' and profile covering that particular part of the route should be prepared and filed. This Alton did. It is impossible to construe this action as an acceptance and use of the survey such as would import an obligation on the part of the defendants to pay for it, irrespective of any express contract obligation to do so. The parties, at the time of the incident, were engaged in a joint enterprise the crucial feature of which was the building of a railroad. Anything which would prevent that would defeat the whole enterprise. It was to Alton’s interest as well as to that-of the defendants that it should not be defeated. Consequently the filing of the fragment of the survey was for the interest of all. We find nothing in the case, therefore, upon which to base a judgment for the plaintiff. Her third cause of action was also unsustained by the evidence and was properly dismissed.
The judgment dismissing the third cause of action is affirmed; and the judgment, so far as it awards a recovery against the defendant appellant and the order appealed from are reversed and a new trial ordered, with costs to the defendant appellant to abide the event.
Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.
Judgment dismissing third cause of action affirmed; judgment so far as it awards recovery against'defendant appellant reversed and new trial granted, with costs to defendant, appellant to abide event.