author: Davies, J. Davis, J.

text:
    Thomas Roberts, Appellant, v. James Donnell et al., Respondent.
    On an appeal from a judgment entered by the direction of a single justice of the Marine Court to the justices thereof at General Term, security may be given by the appellant, which will operate as a stay of proceedings, according to the provisions of the Code.
    By the provisions of the act of 1853 (ch. 617, § 5), an appeal maybe taken from a judgment entered by a single justice of the Marine Court to the justices thereof at General Term, in the same manner and with the like effect as appeals in the Supreme Court, &c.
   Davies, J.

This is an action upon an undertaking made and executed by the defendants to the plaintiff, bearing date December 31, 1855.

It recites that on the 14th day of December of that year, in the Marine Court of the city of Hew York, the above named plaintiff had recovered a judgment in that court against the appellant therein named, for $489.70, damages and costs, and that the said appellant, feeling aggrieved, thereby intends to appeal therefrom to the General Term of said court, thereupon the said defendants, pursuant to the statute in such case made and provided, undertook that the appellant would pay all costs'and damages which might be awarded against him on said appeal, not exceeding the sum of $250; and did also undertake, that if said judgment appealed from or any part thereof be affirmed, the said appellant would pay the amount directed to be paid by the said judgment, or the part of the amount as to which said judgment should be affirmed, if it should be affirmed only in part, and all damages which should be awarded against said appellant. The notice of appeal and undertaking were filed with the clerk of the Marine Court, and a copy of both served on the plaintiff’s attorney, on the 31st day of December, 1855. The plaintiff’s counsel offered in evidence an order made by the justice pf that court who tried the action, dated December 28th, 1855, in these words: “ Thomas Roberts v. Ezekiel Donnell. On affidavit of the plaintiff and on order to show cause, after hearing the respective parties, ordered that the defendant give security to pay the judgment in this action by or before 12 o’clock on the 31st instant, and serve notice that the same is given, with copy of the undertaking, the sufficiency of the sureties to be proved to the satisfaction of one of the justices of this court; and in default of the giving of such security, the stay of proceedings in this action, made in order of December 24,1855, is from the time above stated vacated.” The introduction of this order was objected to by the defendants’ counsel, and the same was excluded, and the plaintiff excepted. On the 26th day of February, 1857, at a General Term of the Marine Court, the judgment appealed from was in all things affirmed. On the 10th of May, 1856, one of the justices of said Marine Court, sitting alone, made an order that said appeal be dismissed with costs, and that the stay of proceedings be vacated; which order he subsequently vacated on the 21st of February, 1857, and directed that the appeal be restored, the same as if the said order had not been made.

The action was tried in the FTew York Common Pleas, and a motion was made by the defendants’ counsel to nonsuit the plaintiff, or dismiss his complaint, oú the following grounds:

First. That the undertaking was void as being without consideration, and as not authorized by any statute.

Second. On the ground that the appeal had been dismissed by Justice McCarthy, and that therefore no cause of action . was proved.

The court sustained the motion, and ordered the complaint to be dismissed, to which decision and ruling the plaintiff’s counsel excepted. Judgment thereon was affirmed at the General Term of said court. The undertaking in this action was given upon an appeal from a judgment rendered by a single justice of the Marine Court, to the General Term of such court, and such an appeal was distinctly authorized by the provisions of section 5 of an act in relation to the Marine Court, passed July 1, 1853 (Laws .of 1853, ch. 617), which section declares that an appeal may be taken from a judgment entered by the direction of a single justice of the said court, to the justices thereof, at a General Term, in the same manner and with the like effect as appeals in the Supreme Court from the decision of a single judge to the General Term.” Upon the proper construction of this provision, the validity of the undertaking and the plaintiff’s right of recovery depend. The Code indicates and prescribes the manner of appeals from the Special to the General Term of the Supreme Court, and the effect of such appeals; and we must look to these provisions- to ascertain the meaning and intent of the legislature in making them applicable to appeals in the Marine Court. Section 327 of the Code declares that an appeal must be made by the service of a notice in writing on the adverse party and on the clerk with whom the judgment or order appealed from is entered, stating the appeal to be from the same, or to some specified part thereof. Section 332 requires the appeal to be taken within thirty days after written notice of the judgment or order shall have been given to the party appealing. Sections 329 and 330 declares the effect of the appeal, as to what the appellate court may do upon such appeal. Nothing has been said thus far as to any security or stay of proceedings upon any such appeal, and if nothing nlore had been provided for, the party appealing would in most cases have derived little, if any, benefit from his appeal. The opposite party would have been at liberty to enforce his judgment, and the principal benefit anticipated from appeals according to judicial observation, that of delay, would have been entirely frustrated. The 348th section of the Code enacts that no appeal from the judgment of a single judge in the Supreme, Superior Court of New York, or Court of Common Pleas of said city, shall operate as a stay of proceedings, unless security be given as upon an appeal to the Court of Appeals, as required by section 335 of the Code. A reference to that section shows that if the appeal be from a judgment directing the payment of money, it shall not stay the execution of the judgment unless a written undertaking be executed on the part of the appellant by at least two sureties, to the effect that if the judgment appealed from, or any part thereof, be affirmed, the appellant will pay the amount directed to be paid by the judgment, or the part of such amount as to which the judgment shall be affirmed, if it be affirmed only in part, and all damages which shall be awarded against the appellant upon the appeal. It will be seen upon the comparison of the provisions of this section, with the undertaking upon which this action is brought, that it conforms in all respects with the directions of this section.

The only question remaining is, whether these sections of the Code, in reference to appeals in the Supreme Court, have been made applicable to the appeals authorized in the Marine Court. The broad language of the act of 1853 would seem to have been adequate to remove all doubt or question upon this subject. The appeals authorized were to be taken in the same manner, and with the like effect as appeals in the Supreme Court. It is manifest the legislature intended to confer upon the party appealing, all the benefits and advantages which were given to a party appealing in the Supreme Court. His appeal was to be taken in the same manner. That is when it was simply an appeal, and no stay desired, by the service of the notices required, and when a stay was wished for, then in addition the execution, and filing and service of a copy of the required undertaking. When these things are done, or either of them, then the appeal was to have the like effect, as if the same had been taken in the Supreme Court. But we are not without authority upon this precise point, this court having passed upon this question, in the case of The People v. Clerk of Marine Court (3 Abb. Pr., 309). Judge Mitchell, in the opinion of the court dehvered in this case, says: “ The manner ’ relates to the mode of proceeding in effecting an appeal, the notice and seevrity to be gimen / the effect ’ relates to the consequences produced by the appeal as under what circumstances it shall operate to stay proceedings. Effect ’ is an appropriate word to describe a result that follows, after the thing previously spoken of (the appeal) is completed, and would be quite inappropriate if used to define the cases in which such thing might be done.” The. undertaking in suit was fully authorized by law and is in due form, and the defendants’ liability upon it cannot be questioned. That liability was not discharged by the order made by a single justice of the Marine Court dismissing the appeal. After the appeal was perfected the cause was pending before the appellate tribunal, and it only was authorized to entertain a motion for its dismissal. The justice properly vacated his own order, dismissing the appeal, as unauthorized and of no effect.

The order made, requiring the security to be given, should have been admitted in evidence as part of the records of the Marine Court, and as a proceeding in the action. It was not, however, material, and would not of itself afford sufficient grounds for a reversal. But for the reason stated, the judgment must be reversed, and a new trial ordered, costs to abide the event.

Davis, J.

At the close of plaintiff’s ease, the defendants’ counsel moved for a nonsuit on the following grounds:

First. That the undertaking was void as being without consideration, and as not authorized by any statute.

Second. That the appeal had been dismissed by Justice McCarthy, and that, therefore, no cause of action was proved.

The court granted the motion and dismissed the complaint, and plaintiff’s counsel duly excepted.

Several technical questions now raised by the respondents’ points, were not suggested at the trial and they are not to be considered here. If they are of any force, it is probable that most, if not all of them, could have been avoided by further evidence had they been raised at the trial.

Justice McCarthy had no power, “ sitting alone as a judge,” to dismiss the appeal. His order to that effect was inoperative, and might have been disregarded. It was properly vacated by himself at a subsequent period.

The important question of the case is, whether upon an appeal from a judgment entered by the direction of a single justice of the Marine Court, to the justices thereof at a General Term, security may be given by the appellant which will operate as a stay of proceedings, according to the provisions of the Code.

This question depends upon the construction to be given to the fifth section of chapter 617, of the act of 1853 (Laws 1853, p. 1166), which is in these words: “ An appeal may be taken upon the same, from a judgment entered by the direction of a single justice of the said court, to the justices thereof at General Term, in the same manner and with the like effect as appeals in the Supreme Court from the decision of a single judge to the General Term.”

Section 348 of the Code of Procedure authorizes the appeals to the Supreme Court, referred to in the foregoing provision, and declares that “such an appeal does not stay the proceedings unless security be given as upon an appeal to the Court of Appeals, and such security be renewed as in cases required by section 335, on motion to the court at Special Term, or unless the court or judge thereof so order, which order may be made upon such security or otherwise as may be just, such security not to exceed the amount required on an appeal to the Court of Appeals.”

The manner of making the appeal is prescribed by section 327; the time within which it is to be done by section 332; and sections 329 and 330 declare the power of the appellate court in reviewing the judgment and any intermediate order involving the merits, and necessarily affecting the judgment.

The principal “ effect ” of an appeal taken in the manner indicated, is undoubtedly “to bring the judgment for review before the appellate tribunal, where it may be reversed, affirmed or modified; but there is another “effect” which flows from the appeal, to wit, a stay of all proceedings on the judgment appealed from, provided the appellant comply with the requirement, by giving the security or obtaining the special order which makes that effect operative. This latter effect of an appeal is optional with the appellant; but when he chooses to comply with the requirements that produce it, the stay of proceedings in the court helow is as much an effect of the appeal as is the bringing up of the judgment for review.

In using the general language of the section relating to appeals in the Marine Court, above quoted, the legislature intended to adopt the practice on the subject of such appeals in the Supreme Court, as laid down in the Code with all its concomitants and incidents. It was not thought necessary to repeat the provisions of the Code, but the declaration that the appeals should be taken “in the same manner and with the like effect as appeals in the Supreme Court, from the decision of a single judge to the General Term,” was designed to be equivalent to such a repetition. Hence. I think it quite clear that on an appeal in the Marine Court, the appellant is at liberty to stay all proceedings on the judgment appealed from, by giving security as upon an appeal to the Court of Appeals.

In The People v. The Clerk of the Marine Court (3 Abb. Pr., 320), this court incidentally considered this question, though it was not directly involved. Mitchell, J., said “ the manner relates to the mode of proceeding in effecting an appeal, the notice and security to be given; the effect relates to the consequences produced by the appeal, as under what circumstances it shall operate as a stay of proceedings.” But without considering the subject further, I think the court below erred in not adopting the dissenting opinion of Beaut, J., as a correct exposition of the law on this point.

It follows that the undertaking, on which this action is brought, was authorized by the statute, and if properly executed, operative as a stay, and therefore was based upon sufficient legal consideration.

The judgment should be reversed, and a new trial ordered, with costs to abide event.

Judgment reversed.


source: Caselaw Access Project

author: Campbell, J. Wright, J.

license: Public Domain

text:
    Sherman B. Burns, Respondent, v. Henry C. Bryant, Appellant.
    The notice to be served by the landlord upon the tenant at will to determine his tenancy, need not specify the time within which the premises must be surrendered.
    If a time be specified in the notice served upon the tenant which elapses within less than one month from the time of service of the notice, it will not vitiate the notice.
    It is sufficient if the tenant has thirty days’ notice in writing of the intention of the landlord to terminate the tenancy.
    This is an appeal from a judgment of the Superior Court of Buffalo.
    It appears that the defendant was in possession of a parcel of land, some five acres, which had no dwelling on it, and was partly cultivated and partly in grass, and which land belonged to one P. B. Eaton. On the trial Eaton testified that he told the defendant he might use the premises until he wanted them, but must give them up whenever he should want them for any purpose. This evidence was corroborated and was not contradicted. It did not appear that the defendant had paid any rent, or that any was received, or that any compensation was made. In January, 1859, the landlord served on the defendant a notice to quit and surrender the premises. The precise day on which the notice was served, was in dispute whether on the 19th or 24th of January. It was determined on the trial that the service was on the 24th of January, and the notice by its terms requiring the defendant to leave on the 20th of February, and before the expiration of one month. The question of the sufficiency of the notice was raised, and is the only material question to he determined here. The notice was as follows:
    “Buréalo, January 18, 1859.
    “H. C. Bryant: Sir—Please take notice, that you are hereby required to deliver up and surrender the premises (describing them), and to remove therefrom on the 20th day of February next, pursuant to the provisions of the statute relating to the rights and duties of landlord and tenant.
    “Tours, &c.
    “P. B. EATON.”
    On the 21st February, 1859, Eaton leased the premises for one year to the plaintiff, who on the same day took possession by drawing on manure and erecting a tannery, &c., and putting in crops. In May and June following, the defendant plowed up the plaintiff’s crops, and for this alleged trespass the action was brought. A verdict was obtained by plaintiff) and the judgment was affirmed by the Supreme Court at General Term.

      Brown & Fisher, for the respondents.
   Campbell, J.

The defendant was in possession, holding for no particular time, paying no rent, making no compensation for the use of the land, but under agreement to surrender the premises whenever the landlord should require the possession. He was clearly a tenant at will (Post v. Post, 14 Barb., 253, and cases and authorities cited there). As such tenant at will the defendant was entitled to one month’s notice to quit and surrender the premises. (3 R S., 5th ed., p. 35, §§ 7, 8, 9.) The duration of the tenancy is uncertain, and the landlord cannot eject the tenant summarily. He has one calendar month in which to make his arrangements to remove. The form of the notice is not prescribed further than it must require the tenant to remove from the premises, and it must be in writing. The 9th section declares that “ at the expiration of one month from the service of such notice the landlord may reenter, &c.” In this case, the premises being unoccupied at the time, the landlord reentered by the plaintiff before the expiration of the month. But the trespasses were not committed till May and June following, two or three months after the month had expired. The fact that the notice was served on the 24th of January, requiring the tenant to remove .on the 20th February, could make no difference, as there is no claim for trespasses committed prior to the 24th February. All the defendant was entitled to was one month’s notice to quit. It could make no difference that a specific day was fixed in the notice. The statute would still give him the month in which to make his preparations to remove. This month had long expired when the defendant virtually undertook to reenter himself, as against his landlord, claiming that his tenancy had not terminated.

It seems to me very clear that there was no foundation for such a claim on the part of the defendant.

This judgment should be affirmed.

Wright, J.

There is but a single point in the case, viz.: whether the service of the notice on the 24th January, 1859, was sufficient to determine the right of the defendant to hold possession of the premises at the time of the commission of the trespasses by him in the months of Hay and June thereafter. Bryant was the tenant at will of Eaton the lessor of the plaintiff. On the 24th January, 1859, Eaton caused a notice in the following form to be served on him:

“Buffalo, January 18, 1859.
“H. C. Bryant: Sir—Please to take notice that you are hereby required to surrender and deliver up possession of the premises (sufficiently describing them), and to remove therefrom on the 20th day of February next, pursuant to the provisions of the statute relating to the rights and duties of landlord and tenant.
“Yours, &c., P. B. EATON.”

It will be observed that the notice (founded on a supposition that it would be served on the day of its date) specifies a day for removal, viz., the 20th February, which is four days earlier, it being served on the 24th January, than the statute would require; and thereupon the court was asked to instruct the jury that the notice was insufficient and void, and that the tenancy existing between the defendant and the lessor of the plaintiff was not terminated by said notice, whether the defendant was a tenant at will or at sufferance. But this the court refused, and on the contrary charged that the notice was a good and sufficient on,e, and terminated the tenancy "before the time when the trespasses are charged in the complaint to have been committed.

This was not error. The statute is: “ Wherever there is a tenancy at will, or by sufferance, created by the tenant’s holding over his term, or otherwise, the same may be terminated by the landlord’s giving one month’s notice in writing to the tenant, requiring him to remove therefrom” (1 R. S., 745, § 7), and it further provides that at the expiration of one month from the service of such notice the landlord may reenter, or maintain ejectment, or proceed, in the manner prescribed by law, to remove such tenant, without any further or other notice ” (§ 9). All that the statute requires is that the tenant shall have one month’s notice of the will of the landlord that the tenancy shall cease. USTo particular form of notice is prescribed, and in the notice served the will of the landlord to end the tenancy is entirely clear. That a day for removal was unnecessarily specified in the notice, did not vitiate it.

I am of the opinion, therefore, that the notice served was sufficient to terminate the tenancy in one month from the service thereof; and that the judgment of the Supreme Court of Buffalo should be affirmed.

Judgment affirmed.


author: Wright, J.

text:
    Norris Matthews v. John R. Rice.
    The fact that the plaintiff is an infant, and purchased partly on credit from a firm apparently in straitened circumstances, does not render the sale void in law as against the creditors of the firm.
    Under such circumstances, the question of fraud is one of fact, and must go to the jury.
    Appeal from judgment of Supreme Court. The action was for taking and converting a horse alleged to be the property of the plaintiff. The defendant answered, denying the principal allegations of the complaint, and averred that he took the horse as under sheriff of the county of Jefferson, by virtue of an execution issued upon a judgment in favor of one John M. Carpenter against Amasa H. Kellogg and William A. Sherwood; that at the time of taking, the horse was the property of Kellogg & Sherwood, and in their actual possession, and that the plaintiff’s pretended claim of title to ownership and property in the horse was fraudulent and void.
    The action was tried at the Jefferson Circuit, in April, 1858, before Mr. Justice Bacon and a jury. On the trial it appeared that on the 10th of November, 1857, Kellogg &. Sherwood, a firm doing business as sash manufacturers, in the village of Watertown, were the owners of ahorse, harness and buffalo robe, which they had used in their business. The plaintiff, who was about twenty years old, had been for several months previously in their employment, as a journeyman, and upon settlement on that day they were found indebted to him in the sum of $22. In order to pay this sum and to secure the services of the plaintiff, they sold to him the horse, harness and buffalo robe, for $110, to be paid as follows: by canceling the indebtedness of $22, and the balance in ten monthly payments in work. The plaintiff was to work for Kellogg & Sherwood, at $15 per month, during the coming winter, and $20 per month after the spring opened. He gave them his note for the amount, on which was simultaneously indorsed the $22 owing to him, and at the time of the trial, he had paid $80 in all, upon it. Up to the time of sale the horse had been kept in Kellogg & Sherwood’s barn, and on the sale being consummated and the note given, the key of the barn was delivered to the plaintiff, and he furnished grain and hay for, and used the horse exclusively; Kellogg & Sherwood, as this proof tended to show, having nothing to do with it afterwards.
    The firm of Kellogg & Sherwood was, at the time of the alleged sale, in somewhat embarrassed circumstances, though they continued to go on with their business, even up to the time of the trial. One John M. Carpenter held a note against them, which matured on the 4th of November, 1857. On the 11th November (the day after the sale) he called upon them to pay or secure the note, and offered to take the horse as security, which they declined to give, alleging that it was mortgaged to one Ludlow for $80, but saying nothing about the sale to the plaintiff.
    On the 3d December, 1857, Carpenter recovered a judgment upon this note against Kellogg & Sherwood, and caused an execution to be issued thereon to the defendant, who was under sheriff of the county of Jefferson. On the 4th December, this defendant levied upon "the horse in question by .virtue of the execution, and took him away from the barn in which the plaintiff kept him, and put him into Carpenter’s barn. The plaintiff demanded the horse of the defendant, and he refused to give him up.
    After proving the purchase of the horse on the 10th November, and giving evidence tending to show an immediate delivery and a continued change of possession, and also the taking of the horse by the defendant, and his refusal to deliver him up on demand being made, the plaintiff rested; when the defendant moved for a nonsuit, on the grounds:
    1st. That the sale of the horse, on time, by the debtors, Kellogg & Sherwood, to the plaintiff, knowing of their insolvency, and after having been called on for payment of the note held by the judgment creditor Carpenter, was fraudulent and void as to such creditor.

      2d. That the sale of the horse under the circumstances to the plaintiff, an infant, known to have been an infant, taking his note payable in a particular kind of mechanical work, and on time, was fraudulent and void as to the creditors of Sherwood & Kellogg.
    The judge denied the motion for a nonsuit; ruling and deciding.that it was necessary, in order to impeach the sale, to show fraud, in fact, on the part of the plaintiff as well as the debtors, Kellogg & Sherwood. To which refusal to nonsuit, and ruling and decision, the defendant’s counsel excepted.
    On this motion for a nonsuit it was announced (as the fact afterwards appeared on the trial) that the defendant levied upon the horse by virtue of an execution in favor of Carpenter, as set forth in the answer in the cause.
    The case states, that in the submission of the cause to the jury the judge ruled and decided the same as on the motion for a nonsuit, to which the defendant’s exceptions extended.
    Some evidence was then given by the defendant, and the case was submitted to the jury, under the charge of the court, which is not given, and to which no exception was taken, except in the particular above mentioned, and the jury found a verdict for the plaintiff.
    On the trial Sherwood was examined as a witness for plaintiff. In respect to the Carpenter note, he testified that at the time it was given the firm had an unsettled running account with Carpenter. He was then asked this question: At the time you gave Carpenter the note did he state to you that it was an accommodation, and that when it became due he would take it up, or give an extension on it? Objected to by defendant as incompetent and immaterial; which objection was overruled, and the defendant excepted. The witness answered: He did; that was the understanding.
    Judgment being perfected, the defendant appealed to the Supreme Court, where the judgment was affirmed. He now appeals to this court.

      Hammond & Bigelow, for the plaintiff.

      E. B. Wynn, for the defendant.
   Wright, J.

The only exception of any importance was to the refusal to nonsuit at the close of the plaintiff’s testimony. If the judge rightly declined to withdraw the case from the jury, then the appeal is without merit. That there was no error in this respect seems very plain.

The defendant took the property in controversy under an execution issued upon a judgment recovered in December, 1857, by one Carpenter against Kellogg & Sherwood. On the 10th November previously, Kellogg & Sherwood had sold it to the plaintiff, who was an infant, partly on credit. At this time, Carpenter, whom the defendant represented, was but a simple contract creditor of the firm, not having then commenced the action in which his judgment was obtained. Conceding, however, that he was in a position to urge the invalidity of the sale, on the ground that it was made'with intent to defraud the creditors of Kellogg & Sherwood, the question of fraud or no fraud was one of fact for the jury. The fact that the plaintiff was an infant, and purchased partly on credit from a firm in apparently straitened pecuniary circumstances, did not render the sale void in law as against creditors. The infancy of the plaintiff did not alter or affect the transaction, save as a circumstance bearing upon the question of fraud in. fact. There is no legal bar to the right of an infant to purchase property either for cash or upon credit; and the vendor cannot avoid or retract the sale, or question its validity on the ground that the vendee is an infant, much less can a stranger impeach the sale on that ground. In this, as in other cases of a sale of chattels, its invalidity as to creditors, depends upon whether it was made with intent to defraud them. Thus, because the vendee was an infant, and bought partly on credit from vendor, unable at the time to pay all their debts, although pursuing their business, the judge was asked to withhold from the jury the question of fraudulent intent in making the sale; and hold, as matter of law, that the sale was fraudulent and void as against the creditors of the vendors.

Had the request been complied with, it would have been error. Kellogg & Sherwood had the right to sell, and the plaintiff to purchase the property; and if the transaction was in good faith, the latter acquired a title to it. On the other hand if the parties intended by the sale, a fraud upon the creditors of Kellogg & Sherwood, the sale would he void as to them. This question of fraudulent intent was for the jury and could not properly, in this case, if in any, have been withdrawn from them.

The judgment should he affirmed.,

Judgment affirmed.


author: Porter, J.

text:
    Abraham R. B. Moses, Respondent, v. Moritz Bierling et al., Appellants.
    A broker, employed to negotiate a sale, is not entitled to commissions until he has performed the undertaking assumed in the contract with his principal.
    When he produces a proper party, ready to make the purchase at a price satisfactory to the principal, he performs his undertaking, and is entitled to his commissions, unless the principal has already parted with the property.
    When the principal contracts with the broker for the exclusion of all other agencies, he cannot relieve himself from liability for commissions, by negotiating a sale in fraud of the agreement through the agency of a different broker.
    When one of the contracting parties either waives or prevents the,literal performance of a condition precedent, which the other is ready and offers to fulfill, he cannot avail himself of such non-performance to relieve him from his own obligation.
    Appeal from the affirmance, in the Rew York Common Pleas, of a judgment rendered for the plaintiff on the trial before Judge Beady and a jury.
    The action was to recover commissions earned by the plaintiff, in negotiating a sale of 4,000 Prussian muskets for the defendants.
    It was proved that the service was requested by the defendants, and that it was performed with reasonable despatch by the plaintiff.
    There was some slight conflict of evidence on the question whether the sale was in accordance with the instructions, and whether the contract provided for the exclusion of all other brokers; but both these issues were settled in favor of the plaintiff by the jury.
    The defendants declined to accept the purchaser, and to pay'the plaintiff’s commissions, on the ground that they had sold the muskets in the meantime to another party, through the agency of a different broker.
    The judge charged the jury, in substance, that if the agreement was for the exclusion of all other agencies, the procurement by the plaintiff of a purchaser, in accordance with his undertaking, entitled him to his commissions. The defendants excepted to the charge, and appealed from the judgment, which was sustained at the General Term.

      George C. Barrett, for the appellants.

      Gershom A. Seixas, for the respondent.
   Porter, J.

Shortly after the commencement of the pres ent war, the defendants imported four thousand Prussian muskets, for the purpose of selling them at an advance to the government. Before the arrival of the shipment, they employed the plaintiff to negotiate a sale, stipulating that he should receive a commission of two per cent upon the price as a compensation for his services. They agreed, as the jury find, that the plaintiff should have the sale of the guns, to the exclusion of all other brokers. The market price of muskets of this description was then four dollars and sixty cents in the city of ¡New York. The defendants mentioned five dollars as their asking price, but they imposed no limitation upon the plaintiff as to the amount or terms of sale. On the arrival of the muskets, he promptly negotiated a sale to a government officer at $4.75 per gun, amounting, on the four thousand pieces, to $600 more than the market value. The defendants made no objections to the price or terms of sale; but declined to deliver the muskets, or to pay the agreed commission, on the sole ground, that through the agency of another broker they had already negotiated-a sale to a third party.

The only question of law in the case, entitled to serious consideration, is whether the plaintiff was entitled to his agreed commission, on a sale negotiated by the authority of the defendants, but which they declined to ratify; and which failed of consummation for the sole cause, that they had already sold the property to a third party, through the agency of another broker, in fraud of their agreement with the plaintiff.

The authorities on which the appellants rely, and others not cited on the argument, clearly establish the proposition, that until the broker has faithfully discharged the obligation assumed in the contract with his principal, he is not entitled to the agreed commission. (Jacobs v. Kolff, 2 Hilt., 133; Corning v. Calvert, 2 id., 56; Barnard v. Monnot, 34 Barb., 90; Barnes v. Roberts, 5 Bosw., 73; McGavock v. Woodlief, 20 How. U. S., 221; Broad v. Thomas, 7 Bing., 99; Read v. Rann, 10 Barn.& Cress., 438.)

But it is equally well settled, that when one of the contracting parties either prevents or waives the literal performance of a condition precedent, which the other is ready and offers to fulfill, he cannot avail himself of such non-performance to relieve him from his own obligation. (Young v. Hunter, 2 Seld., 204; Holmes v. Holmes, 5 id., 527; Carman, v. Pultz, 21 N. Y., 549.)

A broker, employed to make a sale, under an agreement for the exclusion of all other agencies, is entitled to his commissions when he produces a party ready to make the purchase at a satisfactory price; and the principal cannot relieve * himself from liability by a capricious refusal to consummate the sale, or by a voluntary act of his own, disabling him from performance. (Wentworth v. Luther, 21 Barb., 145; Kock v. Emmerling, 22 How. U. S., 69; Van Lien v. Burns, 1 Hilt., 134; Holly v. Gosling, 3 E. D. Smith, 262.)

Judgment affirmed.


author:
      Davis, J.
      Davies, J.

text:
    Thomas A. Weed, Plaintiff in Error, v. The People, &c., Defendants in Error.
    To constitute a judgment record, it must be signed by a judge of the court.
    The statute (2 E, S., p. 138, §4). authorizing the defendant, convicted or acquitted, &c., to cause a record to be made up, when the district attorney neglects to do so on request, has not dispensed with such necessity.
    The district attorney is not authorized to sign the record, in lieu of a judge of the court; and if so signed by the district attorney only, it is not a judgment record.
    The omission to state in the sentence in what prison the prisoner is to be confined, is not error.
    The law determines the prison; and the court have no authority to incarcerate the prisoner in any other.
    Ih June, 1846, the plaintiff in error was indicted, tried and convicted in the Erie county Oyer' and Terminer, of the crime of perjury. He was sentenced to three years imprisonment in the State prison.
    A record of his conviction was made and filed in August, 1862, purporting to he signed by the then district attorney of said county of Erie. The record sets out the indictment at length; the arraignment and plea of the prisoner, and the joining of issue thereon.
    “And afterwards, to wit, at a court of Oyer and Terminer and general jail delivery held in and for the county of Erie, at the court house in 'the city of Buffalo, on the 23d day of June, one thousand eight hundred and forty-six, before his Honor Hath ah Dayton, circuit judge of the Eighth District circuit of the State of Hew York, and Dexter Ewell and John Brooks, justices of said court, comes the said Thomas A. Weed, and George P. Barker, district attorney, likewise comes.
    “ Therefore let a jury thereupon immediately come before the said justice last above mentioned, of free and lawful men of said county, each of whom hath, &e., by whom the truth of the matter may be better known, and who are not of kin to the said Thomas A. Weed, to recognize upon their oath, whether the said Thomas A. Weed be guilty of the felony in the indictment aforesaid above specified, or not guilty.

      “ And the jurors of the said jury, by Ealph Plumb, sheriff of the said county of Erie, for this, empanneled and returned, to wit, Ira McCall, Deyton Brown, Isaac E. Calkins, Wiliam Calkins, Hath an Lyman, George Wood, Hath an Parnells, Noah Townsend, Darius Smith, James Bloodgood, Benjamin Steward, Henry B. Sweet, who being called, come, and who being then and there elected, tried and sworn, well and truly to try and true deliverance make between the people of the State and the said Thomas A. Weed, then at the bar, whom they should have in charge upon the said indictment, and a true verdict give according to evidence; who upon their oaths aforesaid say that the said Thomas A. Weed is guilty of the felony above charged, in the form aforesaid, as by the indictment aforesaid is above alleged against him, and upon this it is demanded by the said Thomas A. Weed whether he hath or knoweth anything to say wherefore the said justice here ought not upon the premises and verdict aforesaid to proceed to the judgment against him, who nothing further saith unless as before he has said.
    “Whereupon, all and singular the premises being seen and by the same justice here now fully understood, it is considered by the said justice, that the said Thomas A. Weed, for the felony aforesaid, be sentenced, and the said justice thereupon sentenced the said Thomas A. Weed to imprisonment in the State prison, at hard labor, for the term of three years.”
    On the same day that the record was filed, a writ of error removing the same to the Supreme Court of the eighth district was brought. That court affirmed the judgment and conviction, and the plaintiff in error sued out a writ of error to this court.

      Sauders & Caulkins, for the plaintiff in error.

      C. C. Torrance, district attorney, for the defendants in error.
   Davis, J.

No point was made or suggested before the Supreme Court except one arising upon the form of the sentence ; and that was that the sentence omitted to designate the State prison in which the plaintiff in error should be imprisoned. The court, without looking farther into the return, held that this omission was not error, as neither the sheriff nor the prisoner had been misled by it, and there was no reason to doubt the latter had enjoyed his term of service in a proper prison.

The statute does not require that the sentence shall specify the prison. (3 E. S. 5th ed., 1089, § 99.) It directs in what prison persons sentenced to imprisonment in the State prison in the several judicial districts, shall be confined; and the same section provides for the removal of convicts from one prison to another as circumstances may require, which would be inconsistent with a requirement that the sentence shall be absolute for some designated prison. In declaring the punishment for perjury, the statute provides that the person convicted “shall be punished by imprisonment in a State prison.” (3 B. S., 961.) The better practice undoubtedly is to designate the prison in the sentence, but an omission to do so would not invalidate the judgment.

More than sixteen years had elapsed after the conviction and sentence of the plaintiff in error, before any record was filed, or writ of error brought. A conviction for perjury attaches some consequences to the convict, which are supposed to be beyond the reach of executive clemency. The statute declares that he “shall not thereafter be received as a witness, to be sworn in any matter or cause whatever, until the judgment agmnst him ~be reversed.” (3 R. S., 5th ed., 960, § 1.) To such a convict it may in some cases be of considerable importance to regain the right to testify in the courts of justice; and here perhaps may be found a key to unlock the mystery of the making up of the remarkable record before us. The gross carelessness with which it is framed, is quite suggestive of the end in view.

The trial took place before Hon. N. Daytoh, Esq., late circuit judge of the Eighth Circuit, and Dexter Ewell and John Brooks, two judges of the Court of Common Pleas.

The record is in proper form down to the joining of issue. It then recites: “ And afterwards, to wit, at a Court of Oyer and íerminer, and general jail delivery, held in and for the county of Erie, at the court house in the city of Buffalo, on the 23d day of June, one thousand eight hundred and forty-six, before his honor, Hath an Dayton, circuit judge of the Eighth District Court of the State of New York, and Dexter Ewell and John Brooks, justices of said court, comes the said Thomas A. Weed, and George P. Barker, district attorney, likewise comes. Therefore let a jury thereupon immediately come before the said justice last above mentioned of free and lawful men of said county, by whom,” &c.

The record then recites the summoning and empanneling of the jurors, who were duly tried, sworn, &c., and proceeds thus: “ Who, upon their oaths aforesaid, say that the said Thomas A. Weed is guilty of the felony above charged, in the form aforesaid, as, by the indictment aforesaid, is above alleged against him, and upon this it is demanded by the said Thomas A. Weed whether he hath or knoweth anything to say wherefore the said justice here ought not', upon the premises and verdict aforesaid, to proceed to the judgment against him who nothing further saith, unless as before he has said.” “ Whereupon all and singular the premises being seen, and by the same justice now here fully understood, it is considered by the said justice that the said Thomas A. Weed, for the felony aforesaid, be sentenced, and the said justice thereupon sentenced the said Thomas A. Weed to imprisonment,” &e.

From these recitals it appears that Weed was tried, convicted and sentenced by and before one John Brooks, justice of the said Court of Oyer and Terminer, for he is the justice last above mentioned” before whom the jury were directed to appear, and who, as “ the same justice,” appears to have arraigned the prisoner for sentence and pronounced judgment upon him. Of course Brooks could hold no court for the trial of the plaintiff in error, and could have no jurisdiction to pronounce judgment upon him; and if we are to act on the document called a record, brought up by the writ of error, it is manifest we must reverse the. conviction and sentence. Although we have no question that the recitals of this record are not true, and that in fact Weed was tried and convicted in due form of law by and before a properly constituted Court of Oyer and Terminer; yet the record, if it be one, imports absolute verity, and must control our disposition of the case.

But I think the paper brought up by the writ is not a judgment record.

It is signed by a person subscribing himself as district attorney—not the officer who tried the indictment, but one long subsequently chosen. At most, it is his much mistaken memorandum of events, of which he had no personal knowledge.

To constitute a record it should have been signed by a judge of the court. The law on this subject, in criminal proceedings, has not been changed.

The statute, which authorizes a defendant who shall have been convicted or acquitted to require the district attorney to make up a record of judgment, and on his neglect to do so for ten days, provides that “ such defendant may himself cause the same to be made up, signed and filed” (2 R. S., 138, § 4), has not changed, but recognizes the then existing law. I know no statute which authorizes the district attorney to “ sign” the record. It is essential to constitute a judgment record that a judge of the court should sign it, and without such signature it is no record.

There is nothing, therefore, before us calling for our interference with the judgment which the Oyer and Terminer rendered against the plaintiff in error. The court below should have dismissed the writ of error, instead of giving judgment upon it; and it seems to me the disposition this court should make of the case should be to reverse the judgment of the Supreme Court, and order that court to dismiss the writ of error, for the want of any judgment record upon which it could properly act.

Davies, J.

The plaintiff in error was indicted in the Oyer and Terminer of Erie county, at a term of said court held at the court house in Buffalo, on the 15th day of June, 1846. It is recited in the caption of the record, that said court was held before Nathan Dayton, circuit judge of the Eighth Circuit, and F. P. Stevens, Dexter Ewell and Theodotus Bur-well, Judges of the County Court of said county of Erie. After setting forth the indictment, the record states that after-wards, on the 15th day of J une, 1846, at the place last mentioned, before the said justices above named, the plaintiff in error was arraigned upon said indictment, and -plead not guilty. And that afterwards, at a Court of Oyer and Terminer and general jail delivery, held in and for said county of Erie, at the court house in Buffalo, on the 23d day of June, 1846, before Nathan Dayton, circuit judge of the Eighth Circuit, and Dexter Ewell and John Brooks, justices of said court, the said plaintiff in error and the said People appeared, and therefore, it was said in the record, let a jury thereupon immediately come, before the said justice last above mentioned, who were to inquire the truth of the matter. And it is also recited, that the jurors of the jury came, who, upon their oaths, say that the said Thomas A. Weed was guilty of the felony above charged; and upon rendering said verdict, it was demanded of said Weed if he had anything to say wherefor the said justice here ought not, upon the premises and verdict aforesaid, proceed to judgment- against him. Wherefore, it is recited, all and singular the premises being seen, and by the same justice now here fully understood, it is considered by the said justice, that the said Thomas A. Weed, for the felony aforesaid, be sentenced, and the said justice thereupon sentenced the said Thomas A. Weed to imprisonment in the State prison, at hard labor, for the term of three years. On writ of error to the Supreme Court the conviction was affirmed, and on the 5th day of March, 1864, the plaintiff in error presented his writ of error to this court.

It is now claimed that the judgment should be reversed, on two grounds: 1. Because it does not appear by the record that the defendant was tried, convicted and sentenced by or before a properly constituted Court of Oyer and Terminer, but that the jury came before the said justice last mentioned, and that John Brooks, who is the justice last named in the record, had no right or authority to hold the court. 2. That the judgment is void for uncertainty, in not naming the prison in which the defendant was to be imprisoned.

Taking, the whole record together, it does not appear to be reasonably subject to the criticism of the counsel of the plaintiff in error. The record states that before the three justices named, at a court of Oyer and Terminer, held, &c., came the people and the prisoner, and that thereupon, immediately, came before the said justice last above mentioned, the jury, &c. Beading this in connection with the context, it is apparent to all reasonable certainty, that the jury came before the justices just mentioned holding the said court. The jury thereupon immediately came, that is before the said justices, and the like form of expression is used in the subsequent parts of the record, referring to the same justices, although the word justice is written in the singular instead of the plural number. It seems to me, that the word justice, as used in the record, refers to the justices named as holding the Oyer and Terminer, and that the prefix of the words, the said ” or the same,” must make the reference, to all of them, reasonably certain. The language used, would not otherwise be sensible, or have any just or proper connection.

I see no force whatever in the second ground, taken for the reversal of this judgment.

The Bevised Statutes provide, that persons convicted of perjury shall be punished by imprisonment in a State prison, not committed upon the trial of any indictment for a capital offense, or for any other felony, for a term not exceeding ten years. (2 R. S., 4th ed., p. 865, § 2.) And § 84, same vol., p. 959, declares that all male convicts sentenced to an imprisonment in a State prison in the eighth judicial district, shall be confined in the State prison at Auburn. There is nothing in the statute requiring the particular prison which the law designates, as the one in which the convict is to be confined, to be mentioned in the sentence. The court would have no power to designate another or different prison than that prescribed by the legislature, and it would be an idle ceremony to repeat, in the sentence, what the law had irrevocably fixed. There was no error, therefore, in the omission in the sentence, of a designation of the particular prison in which the convict was to be confined.

The judgment of the Supreme Court was reversed.


author: Brown, J. Wright, J.

text:
    Bank of Salina v. Thomas G. Alvord.
    Where more than legal interest for the forbearance of money is intentionally taken, whether the party acts in ignorance of the law or not, it is conclusive evidence of a corrupt agreement within the statute, and the contract is void.
    Safety fund banks, subject to the provisions of the act of 1829, were not authorized to take more than six per cent interest in advance on paper discounted in the ordinary course of business, which became payable within sixty-three days of the time at which it was discounted.
    Where such bank discounted paper payable in thirty-five days, and reserved therefor in advance seven per cent interest, it was held that the transaction was illegal, and that the indorser of such paper was not liable thereon.
   Brown, J.

The drafts in question in this action were drawn by the firm of Latham, Toser & Perry. One of them for $2,000, thirty-five days after date, and was dated August 28th, 1857; the other for $4,000, eighteen days after date, and was dated September 4th, 1857. They were indorsed by Thomas GL Alvord, the defendant, for the accommodation of the drawers, and discounted by the plaintiff for the drawers, who received the proceeds, less the discount, into their own hands. The drafts had no other origin or inception but in this contract for the loan of the money. It appears by the evidence and the finding of the judge that the plaintiff is one of the Safety Fund Banks, and subject to the provisions of the act of 1829. Both drafts were discounted at the rate of seven per cent per annum, and interest at and after that rate was taken by the teller of the bank at the time. The proceeds of the last named draft was $3,983.89, and the discount taken was $16.11; and the proceeds of the first named draft was $1,987.73, and the discount taken was $12.27. The net proceeds were paid to the drawers, and the discount retained by the plaintiff at the time of the discount. Ho question arose upon the signatures of the parties, or the presentation and notice of non-payment and protest. But the only question litigated in the court below was the validity and force of the contract under which the plaintiff claimed to recover. The defendant had judgment in his favor at the circuit, which was afterwards affirmed at the General Term of the Supreme Court for the fifth district, and the defendant thereupon appealed to this court.

To bring a case within the prohibition of the statute the paper must be discounted or received in the ordinary course of business. It must become payable within sixty-three days of the time at which it was discounted, and the rate of interest must be greater than at and after the rate of six per cent per annum, and be taken in advance. The transaction between Latham, Toser & Perry has all these qualities. One of the drafts was payable thirty-five days after its date, and the other eighteen days after its date, and the interest at the rate of seven per cent was taken by the bank in advance of the time of payment, namely, at the time the paper was discounted. The paper was doubtless drawn and indorsed before any agreement was made as to the rate at which they were to be discounted, but the circumstances cannot free them from the taint of illegality if it otherwise adheres to them, because they had no vitality or force until they were discounted, and the contract for the loan is deemed to have been made at that time and not when the drafts were prepared. .Here, then, is a contract which the bank was forbidden to make, and which it is seeking the aid of the courts to enforce and carry into effect. The general principle is stated in Com. on Con., 30, that “ all contracts and agreements which have for their object anything which is repugnant to justice, or against the general policy of the common law, or contrary to the provisions of any statute, are void'; and whenever a contract or agreement is entered into with a view to contravene any of those general principles, there is no form of words, however artfully introduced or omitted, which can prevent courts of law and equity from investigating the truth of the transaction.”

It is thought by the counsel for the plaintiff that the charge of seven per cent by the bank originated in a mistake of the teller in estimating the amount of the discount, and therefore, the transaction is not to be treated as a breach of the statute. The proof shows that the cashier of the bank passed the paper to the teller, Thomas I. Leach, with directions to discount it without further instructions; and that he estimated the amount at the rate of seven per cent, and retained that amount from the proceeds, giving the balance to Perry, who said nothing to him about it. He supposed his figures and estimate were right, and did not know of the provision of the statute at the time. He made no error or mistake in what he did. He accomplished just what he intended, which was to take the discount at the rate of seven per cent. A mere error in figures; an innocent mistake of fact in estimating the amount of interest would not constitute usury, because there must be an intention, a corrupt agreement to take more than the law allows, to make out what we understand by usury. The corrupt agreement spoken of in the books, is an agreement to do what the statute forbids. The court said, in The Bank of Utica v. Wager (2 Cow., 769), “the receiving usurious interest intentionally is sufficient evidence of the corrupt agreement,” and does not need authority to support it. The intention to take the forbidden rate of interest, as well as the taking of it, is established beyond a doubt. The case of Condit v. Baldwin (21 N. Y.), is referred to as authority to show that where money is intrusted to an agent to loan at the legal rate of interest, and he, in making the loan, exacts a bonus to himself without the knowledge or authority of his principal, does not constitute usury. This decision was not rendered without encountering a very able dissenting opinion, and while it is to be followed and adhered to, must be interpreted by a strict regard to the facts upon which it is founded. The total disregard of the instructions of the principal was an established fact in the case, and the only ground upon which the judgment is to be upheld. Ho such element is apparent here. The bank could only act through its officers, and in the absence of any express instructions to be found in its by-laws and the proceedings of its managers, whatever the officers do in the business of discounting paper must be regarded as done by the bank itself.

Hnhappily for the bank, if there has been any transgression in discounting the drafts in question, it is itself the erring party. It cannot, therefore, invoke the aid of the doctrine, that the legislature may prohibit the contract and punish the guilty parties, and yet leave the contract to stand in favor of innocent parties not included in the terms of the prohibition. The cases in which the courts will give relief to one of the parties, on the ground that he is not in pari delicto, are distinct from those which rest upon a disaffirmance of the contract before it is executed. It is essential to both classes that the contract be merely malum prohibitum. If malmm m se the courts will not interfere to relieve either party from any of its consequences. But when the contract involves neither moral turpitude, nor violates any general principle of public policy, and money or property has been advanced upon it, relief will be granted to the party making the advance: 1st. when he is not in pari delicto / or second, in some cases when he elects to disaffirm the contract while it remains executory.” (Opinion of Judge Selden In the matter of the claim of the State of Indiana; Tracy v. Talmage, 14 N. 7., 162.) The present action is in affirmance of the contract. It proceeds upon the theory that the contract is valid and binding upon the parties to it, and may be enforced in the courts at the suit of the bank who is the erring party, notwithstanding the prohibition of the statute. We are also referred to the case of The Oneida Bank v. The Ontario Bank, (21 N. Y., 490); but I see so little analogy between the principles involved in that case and those which must govern this, that I decline to pursue the inquiry further.

The judgment of the court below should be affirmed.

Wright, J.

The plaintiff, in discounting the bills in suit, one of which matured in eleven days, and the other in twenty-one days from the time of such discount, and taking and receiving interest at and after the rate of seven per cent per annum in advance, not only violated an express statute, but exercised a power that the corporation did not possess. The plaintiffs were a banking corporation subject to the provisions of what is called the “ safety fund act,” the 33d section of which declares that “ on all notes or bills by it (then) discounted or received in the ordinary course of business, which shall be matured within sixty-three days from the time of such discount, the said moneyed corporation shall not take or receive more than at and after the rate of six per centum per annum in advance.” (Laws of 1829, ch. 94; id., 1832, ch. 206.) The transaction was also without their corporate power. They were authorized to discount bills and notes, and other evidences of debts, but this power was limited in the discount of paper maturing within sixty-three days, to discounts upon loans, upon which only six per cent interest in advance should be taken. As to a discount upon such' a loan at a higher rate of interest, the corporation possessed no power whatever.

The transaction was a loan of money by the plaintiffs to Latham, Toser & Perry, the drawees of the drafts and taking the drafts as security for the repayment, together with an agreement on the one part to pay, and the other part to receive seven per cent interest upon the loan; and the amount of the interest was reserved by the bank at the time. The bank was expressly prohibited from discounting paper that would mature within sixty-three days, reserving a greater rate of interest than six per cent. The contract was one, therefore, prohibited by statute; it was illegal and in direct violation of law, and, I think was void. It is true that the statute does not in terms declare such a contract void; but as was said by Spencer, J., in Thalimer v. Brinkerhoff (20 Johns., 396), “it is a fundamental rule that all contracts which have for their object anything repugnant to the general policy of the law, or contrary to the provisions of any statute, are void.” It is claimed that the taking of excessive interest is only prohibited, and that the contract to secure the loan of the drafts by the unlawful act, are not invalidated. I am not able to agree to this. The contract was one and entire, and the illegal element introduced into it vitiated it altogether. The substance of the agreement was to loan to the borrowers a sum of money, provided they would pay interest at seven per cent, and the principal sum within sixty-three days, and secure their agreement by these drafts; and in pursuance of this agreement the loan was made and the drafts taken. To recover upon the drafts in suit the bank must rely upon this agreement; and by recovering, it reaps the fruits of the illegal contract. As was said by Sir William G-bant, master of the rolls, in Thomson v. Thomson (7 Ves., 473), “the plaintiff cannot stir a step but through that illegal agreement, and it is impossible for the court to enforce it.”

I think, also, that the loan under the contract proved was illegal, as well as the security taken. The object of the statute was to protect borrowers against the oppressive exactions of banks, and the policy of the law would be defeated by holding that the plaintiffs could recover the money loaned. If the only hazard in discounting short paper at more than six per cent was the loss of the excessive interest, it is plain that the object of the statute would be frustrated. At any rate the plaintiffs could not recover the money loaned upon the idea of a distinction between thé loan and security except upon the theory of a right to disaffirm the contract represented by the drafts; which right I think the law does not give them; and although the sufferer from an illegal transaction may sometimes disaffirm the contract, and recover upon the money counts, upon the principle that the guilty party ought not to be allowed to retain the fruits of an illegal transaction at the expense of the more innocent, this principle cannot be made available to justify a recovery by the guilty party. In this case, however, it is not necessary to hold against the right of the bank to disaffirm the illegal contract and recover from the borrowers the money loaned. Ho such recovery could be had against the defendant. The action is upon the drafts, and the form of the action affirms the contract as made. The defendant, in form and in fact, is a surety. Ho money was paid to him; and an action for money len cannot be maintained against him.

Again, the discount of the drafts by the banks was an act ultra vires, and not within its corporate power. It had no legal capacity to discount paper of the description of these drafts at a higher rate of interest than six per cent in advance. The charter of the plaintiffs limits their power in the discount of paper maturing within sixty-three days to discounts upon loans, upon which only six per cent interest in advance shall he taken. Discounting the drafts in this case, and taking interest at and after the rate of seven per cent per annum in advance, was exercising a power which the coiporation did not possess. It requires no argument to prove that a contract which a corporation has no power to make is void and cannot he enforced.

If the taldng of the seven per cent was the result of a mistake, or unintentionally done, it would not affect the validity of the transaction. But this is not pretended. The plaintiffs intended to take seven per cent interest on the discount of the drafts; and had this "been a usury case, intentionally taking more than legal interest would have been, jper 56, usury. There must be a corrupt agreement, it is true, to violate the statute against usury; but where more than legal interest for the forbearance of money is intentionally taken, whether the party acts in ignorance of the law, or not, it is conclusive evidence of a corrupt agreement within the statute.

I am of the opinion that the proper disposition was made of the case at the circuit, and that the judgment should he affirmed.

Judgment affirmed.


author: Potter, J. Wright, J. (dissenting.)

text:
    Sylvanus Burnham, Appellant, v. Jason Butler and others, Respondents.
    The judgment of a justice of the peace should not be reversed by the County Court, unless it clearly appear that the judgment of the justice could not have been justified by the evidence.
    So long as there has been legal evidence on both sides of the question adjudicated upon, the County Court should not reverse the judgment, even if it arrive at a conclusion as to the facts different from that adjudged by the justice.
    Appeal from the judgment of the General Term of the fourth district, which affirmed the judgment of the county court of St. Lawrence county, which reversed the judgment of a justice’s court.
    In February, 1858, the appellant Burnham was traveling, with a horse and cutter, returning home from town meeting in the town of Potsdam. Behind him, traveling in the same direction, was one Franklin Smith, also traveling with horse and cutter; next behind Smith was Hiram Senter, in a double sleigh and pair of horses; next behind Senter were the two defendants, Judson Butler and Jason Butler, with double sleigh and pair of horses; -and in rear of the two Butlers was the defendant Goodale, in a cutter with one horse. These teams were all traveling in the same direction northwardly, at a “good fair jog” (in the language of the witnesses), and near to each other. • The road was good width, but was drifted with snowbanks. It does not appear how many beaten tracks for traveling had been made in the snow ■ at the place of difficulty. At the time in question, the defendant Goodale, with the hindmost team, turned out to the right, to pass the Butlers next before him; Butlers seeing this attempt, turned their horses to the right to prevent Goodale from passing, and in this way they drove nearly side by side until they came by the side of Senter’s sleigh, next before Butler’s, at a quick pace, breaking into a gallop ; Senter’s team being skittish, or getting frightened, shied to the left, these two teams being on his right, the left runner of Senior’s sleigh struck a snow bank, upset Senter’s sleigh, Senter was dragged a short distance, he let go the lines, his horses escaped from him and ran away, and in running struck the plaintiff’s cutter, destroyed the cutter, and hurt him and his horse, for which injuries he brought this action in a justice’s court against the two Butlers and Groodale, by whose action it was claimed the injury was caused. The justice gave judgment against the defendants for $30, damages and costs. This judgment was reversed by the county court, and the judgment of the county court was affirmed by the Supreme Court.

      Dart & Tappan, for the plaintiff.

      John H. Reynolds, for the defendants.
   Potter, J.

Two points only have been discussed in this

case, as arising upon the judgment given by the justice of the peace. The first is, whether there was evidence before the justice showing or tending to show, that the defendants had been guilty of negligence or want of care in the act which caused or contributed to the plaintiff’s injury. It was one of the grounds upon which the county court reversed this judgment, that there was no sufficient evidence of such negligence. This makes it necessary to determine what rule is to be observed by the county court in a review of justices’ judgments. I am not aware that there has been any change of the rule in this respect, since the case in the court of errors, of Noyes v. Hewitt, reported in 18 Wend., 141, which affirmed the rule as laid down by Bronson, J., in Stryker v. Rergin (15 Wend., 491), and overruling the two cases of . Whitney v. Sutton and Columbia Turnpike Road v. Haywood (10 Wend., 413, 425). That rule is, “that where on a trial in a justice’s court there is evidence on both sides, and even where there is only slight evidence in support of the cause of action on which there is a recovery, the county court is not authorized to reverse the judgment, although such court may arrive at a conclusion upon the facts of the ease, or the weight of evidence, different from that drawn by the justice.” This court, then, are bound to look into the evidence so far as to see if there is any or sufficient evidence to sustain the judgment of the justice. About the leading facts of the case, there is no material conflict, five teams with sleighs, some single, some double, were traveling in the same direction, and in close proximity, in the month of February; one of the defendants, with the team in the rear, turned out to the right and attempted to pass the team next before him, in which were the other two defendants; these two, seeing this effort made to pass them, turned their team also to the right, to prevent the passing; these two teams were then driving side by side with increased speed, one making the effort to pass, the other maldng the effort to prevent the passing ; while these efforts were in progress, they had advanced side by side to the right side of the next sleigh forward of both, in which was Mr. Senter, thus bringing three teams side by side. This action frightened the team of Mr. Senter, which shied to the left, striking a snow bank, upsetting his sleigh, dragging him a distance, his horses escaped, ran with violence against the sleigh of the plaintiff, and demolished his sleigh, and did other injuries. This act which caused the injury, whether justifiable or not, originated with these three defendants. The justice must have attributed negligence or want of care to all these defendants, to justify a judgment against them. Unless there was evidence tending to prove such want of care, the judgment was erroneous. The county court was unable to see in this evidence any proof of want of care, inasmuch as the defendants were lawfully traveling upon a public highway, and had a right to increase their spéed, if they desired to travel at a more rapid rate than did those before them; and, in the opinion of the judge, says, “ there was abundant room for this purpose.” Without controverting the proposition of law, upon the assumed facts, it is first proper to remark, that whether there was abundant room for the purpose,” is a most material fact in the case, and of itself is not a question of laWj and the law that is applicable, is controlled by the finding of this fact.

If we are to assume that the justice also considered this fact whether there was an abundance of room, and passed upon it, we cannot regard this statement of the county judge as having any weight, if we follow the rule we have supposed applies. The question here is, was there evidence sufficient to sustain the finding of the justice that there was not sufficient room, regard being had to the care which is required by law of the defendants in this attempted act of passing ? What evidence had the justice before him on this question ? Whether there was room enough depends not upon the width of the road as laid out, whether that be three, four or even six rods, but how much of it, in its condition at that season, could be traveled, or was practicable to travel; what the number of its beatefi or traveled tracks; what portion of the road was filled and obstructed with snow drifts; what the depth of snow; what the depression of the tracks; what the height of the intervening ridges, pitch-holes, &c.; all these are im portant features in this case upon the question of care to be observed by him who desires or attempts to pass. The justice could not exclude from his consideration the evidences that nature, that the season, that the elements had interposed, .nor such as the common experiences of life in the country furnish. The justice had a right to consider all these, from the facts proved, that this was a north and south road; he had a right to consider, then, from what all experience teaches, that westerly winds fill such roads with drifts of snow, and that such drifts would be on the left hand side of such a road, in going north, and the fact proved that there were such drifts, he had a right to consider that such drifts would narrow the practical traveled passage way; and that the snow drift that upset Senter’s sleigh was proved to be on the left hand side of this road. Though the county judge, in the month of June, when he reversed the justice’s judgment, did not see or consider this character of evidence as being in the way, the legal presumption is that the justice did consider it. Experience . also teaches, and the justice doubtless considered it, that turning out of deep snow tracks requires care and caution to prevent upsetting. If the justice did consider all this, if he based his judgment upon that consideration, if in view of these considerations, and the evidence, he held that the defendants were negligent, that they ought to have used more care, then his judgment upon this point must be sustained. There is evidence, strong evidence, tending to prove negligence or want of care. Such a judgment has a more reasonable, practicable and sound basis to sustain it than that which is based upon the nonexistence of these facts. The county judge ignored them all. These facts and circumstances may have been entirely controlling with the justice in giving his judgment. That the county judge acted upon the opposite assumption of fact is clear; he decides as a question of fact, that there was room enough,” and upon this assumption held the law to be with the defendants. How the conclusion of law will be affected by this wrong assumption of fact will be seen in the next point.

2. If we are right as to the facts that may have been considered by the justice, then the rule of law was correctly laid down in the dissenting opinion given in the Supreme Court, .and it may be repeated here. The majority of the Supreme Court having adopted the views of the county judge, they, of course, and of necessity, adopted his facts, which was the basis of his decision. The case of Kelsey v. Barney (2 Kern., 429) I regard as controlling in this case. In that case the court says:

The law imposes upon all persons using a highway the obligation to exercise ordvna/ry care to avoid inflicting injury upon others. The degree of care which is thus imposed, is not capable of exact definition in words. It is sometimes said to he that degree of care which a prudent man exercises about his own affairs. This definition, and all similar ones, plainly do not greatly aid the inquiry as to the exact limits of the care to be exercised in any particular case. The difficulty is inherent in the subject. * * * It seems plain also, that the degree of vigilance which the law will exact as implied by the requirements of ordi/nary care, must vary with the probable consequences of negligence; and also, with the command of means to avoid injuring others,- possessed by the person on whom the obligation is imposed. Thus, upon a person walking in a country road, and upon another driving a spirited horse in a crowded thoroughfare, the requirement of ordinary ca/re will impose very different degrees of vigilance to avoid inflicting injury upon others. Under some circumstances, a very high degree of vigilance is demanded by the requirement of ordi/na/ry ca/re. When the consequence of negligence will probably be serious injury to others, and when the means of avoiding the infliction of injury upon others a/re completely within the party's power, ordina/ry ca/re requires almost the utmost degree of human vigilance and foresight.”

This in substance is the -law as laid down by Sir William Jones. In regard to the care or diligence which is recognized in the law, he says: “There are infinite shades from the slightest momentary-thought or transient glance of attention to the most vigilant anxiety and solicitute. And in like manner there are infinite shades of default or neglect from the slightest inattention or momentary absence of mind, to the most reprehensible supineness and stupidity; and these are the omissions of the before mentioned degrees of diligence, and are exactly correspondent with them.” Jones on Bail, 5-8. The law of the road as to persons traveling in the same direction, is laid down by Angell as follows: “ If there be not sufficient room to pass on the one side or the other, it is the duty of the foremost traveler to furnish it on reguest made, by yielding an equal share of the road, if that be adequate and practicable; if not, the object must be deferred until the parties arrive at ground favorable to its accomplishment. Angell on Highways, § 340. In the case of Vandeburgh v. Truax (4 Denio, 464), Bronson, Ch. J., said, “ when one does a legal act in such a careless and improper manner that injury to third persons may probably ensue, he is answerable in some form of action for all the consequences 'which may directly and naturally result from his conduct. (See also Scott v. Shepherd, 2 W. BL, 892; S. C., 3 Wils., 403.)

The opinion of the learned county judge does not adopt this rule, nor the law as found in the cases cited. He discusses plausibly the right of parties in the abstract; and is right, if circumstances did not control as against an absolute unvarying principle. How I apprehend that ordinary ca/re, as between two teams traveling on the highway, the one desiring to pass the other, upon a good, wide, improved road, in the summer season, according to the law as we have taken it from Kelsey v. Barney, is an entirely different rule from that of teams traveling in company in the winter season, over slippery, contracted and drifted roads, with sudden, abrupt and uneven surfaces. The learned county judge has discussed the law as if there was a uniform rule under all circumstances. His reversal of the judgment -of the justice, gives the justice no credit for the considerations that may have controlled his judgment, and “that the defendants have the command of means to prevent the injury,” and did not exercise that vigilance which amounted to ordinary care under the whole circumstances of the case.

It is possible, nay probable, that the justice whose decision he reversed adopted the true rule, and in the absence of knowledge of the rule actually adopted (if he adopted any rule at all), the law comes to the aid of the judgment he has given, and demands that the appellate court shall give to his judgment every reasonable construction to sustain it, if from the evidence it was possible for him to have given such a judgment as he did give. We have shown that there were facts in the case, with circumstances attending them, which brought it within the province of the justice to say whether the defendants, and each of them, used all the precaution and care demanded of them under the circumstances. This being so, we aré to presume his judgment was given upon the right ground, and it ought, therefore, to stand. I think the judgment of the Supreme Court and of the county court ought to be reversed, and that of the justice affirmed.

Denio, Ch. J., Davis, Davies and Brown, JJ., concurring.

Wright, J. (dissenting.)

This is an appeal from a judgment -of Supreme Court affirming a judgment of the St. Lawrence County Court, which reversed a judgment in favor of the plaintiff rendered by a justice of the peace.

The action before the justice was to recover damages alleged to have been sustained by the plaintiff in February, 1858, by being run upon, in a public highway, in the town of Potsdam, by the horses of one Senter, which it was alleged had been frightened, and' caused to run away, and over the plaintiff, by the misconduct of the defendants. These allegations were put in issue by the defendants; and on the trial the following facts were disclosed:

Towards evening on the day of the town meeting in Potsdam, in February, 1858, the partiés were returning home along a public highway. The plaintiff was ahead with a horse and cutter, and behind him were the following teams: 1st. Franklin Smith, in a cutter; 2d. Hiram Senter, in a double sleigh; 3d. Jason Butler and Judson Butler, the defendants, with a double team; 4th. The defendant Goodale, with a horse and cutter; and 5th. Charles Bowker, in a cutter ; and all were trotting along at a “ common jog.” When they came opposite what the witnesses called “Marcus Hough’s place,” the defendant Goodale turned out to the right for the purpose of driving faster, and passing one or all of the forward sleighs. The defendant Jason Butler said to Judson his brother, who was driving, not to let Goodale go by. At this point the road was wide enough for three or four teams to go abreast. Judson Butler turned out to the right also, and quickened the speed of his team, and came • up nearly by the side of Senter’s teani, Goodale being nearly by the side of Butler’s sleigh. They were then going at a “ good ordinary fair trot.” As Butler’s team came up, Senter’s was started, and sprang aside and ahead; and his cutter struck a snow drift and upset. The Butlers and Goodale at once held up. Senter was dragged a short distance, when he let go his lines, and his horses ran for about forty rods, and struck the plaintiff’s cutter, destroying it, and injuring him.

These were the facts of the case as detailed by the plaintiff’s witnesses. The justice refused to nonsuit the plaintiff, and gave judgment in Ms favor for $30 and costs. This judgment was reversed by the county court, which reversal was affirmed by the Supreme Court.

On the case as made by the plaintiff himself, I cannot see how the defendants were legally responsible for the injury. They were guilty of no unlawful act, or of any act of negligence which caused or contributed to produce it. If any of the parties were blamable it was S enter, for his carelessness and inattention in the management of his horses. The defendants certainly had the right, one or all, to turn out and pass the teams ahead; and there was not the shadow of evidence proving or tending to prove that in the attempt there was any want of care or caution. The road, at the point where they turned their teams to the right with the view of passing, was wide enough to allow four or five teams to go abreast; they turned entirely out of the traveled track; they drove at a proper and moderate rate of speed, and in doing so they made no unusual noise calculated to frighten the other teams, or by reason of which a team would ordinarily be frightened; they did not run upon oi against Senter’s team or sleigh; or go by him; and when coming near him, and seeing Ms horses restive they at once held up. At this juncture, by the neglect or inattention of Senter, he allowed his horses to sheer to the left so that the off horse was going in the nigh one’s path, and thus they were suffered to go until the sleigh struck a snow drift out of the traveled track, upsetting it, and the horses running off, and the plaintiff being in the way, was run against by them, and received the injury complained of.

In order to make a party responsible for an injury, on the ground of negligence, it must appear that the negligent act directly caused or contributed to produce the injury complained of. Here it is impossible to point out anything done by the defendants wMch was careless or negligent. The place was a proper one to pass the teams ahead, and it was attempted at a proper rate of speed, and with all due care in the management of the horses. The mismanagement and fright of Senter’s team, which was the cause of the plaintiff’s injury, was not the necessary or probable result of what was done by the defendants.

It is claimed that it was a question of fact, within the exclusive province of the justice, to determine whether the right to pass teams, if the defendants had any such right, was under the circumstances prudently exercised. This is not so. To pass was not unlawful; there was no wrong in the act per se, and the evidence was wholly uncontradicted in respect to the circumstances under which it was attempted. It was not for the justice to speculate upon the question of negligence, as the evidence before him neither proved nor tended to prove it.

I think the judgment of the Supreme Court should be affirmed.

Porter and Campbell, JJ., concurring.

Judgment of Supreme Court reversed, and judgment oí the justice affirmed.


author: Davis, J.

text:
    Joan Boyce and others, Respondents, v. Jesse Brookway, Appellant.
    Where the assumption of dominion over property is in hostility to the rights of the true owner, such assumption amounts, in law, to a conversion.
    Where the defendant received a number of firkins of butter, a part of which he was notified belonged to fhe plaintiffs, but notwithstanding he shipped them all as his own, such act amounted to a conversion for which he is liable.
    To maintain an action for the wrongful conversion of property, it is enough that the rightful owner has been deprived of it by the unauthorized act of another assuming dominion over it.
    This action was brought for the conversion of a quantity of butter. It was tried at the Schoharie Circuit in November, 1858, before Mr. Justice Gould and a jury. It appeared, on the trial that in the fall of 1856 the plaintiffs were engaged as partners in the purchase of butter. That one Brown was employed in purchasing butter at Summit for the defendant, but at times when defendant stopped him from purchasing on his account, he bought as agent for plaintiffs. The butter in question was bought by Brown for plaintiffs. It was in firkins, marked “ S. V. B.,” which were. the initials of the maker’s name. Brown loaded it, to be carried to one of plaintiffs, on a sleigh with twelve or thirteen firkins of defendant’s butter, which were marked with the initial “ B.,” and at that time he marked the plaintiffs’ firkins with a cross in red chalk. The load was sent from Summit to Catskill, and there delivered to defendant, who received the same at his warehouse. The defendant had at that time a large quantity of butter in- his warehouse, and shortly afterwards shipped the whole, amounting “to two hundred and twenty odd firkins,” on board the steamer Hero, for New York. He sold (as he testified) to one Mitchell all the butter that he received in New York from the steamer, being 215 firkins. The proprietors of the Hero afterwards paid him $40 for butter not delivered. Evidence was given on the part of the plaintiffs tending to show that when the load was delivered to the defendant at Catskill he was informed that some of the butter belonged to plaintiffs, but defendant testified that he was wholly ignorant that any butter but his own was delivered to him. After the butter was delivered at Mitchell’s, in Mew York, Brown examined the firkins there and could not find any of plaintiffs’.
    On the trial the defendant offered to show by Mattice, one of plaintiffs, that he had assigned his interest in the subject matter of the action, and was not then the owner thereof. This was excluded under objection, and defendant excepted. The defendant also offered to prove “that the plaintiffs, other than Mattice, were not partners.” The court excluded the evidence, and defendant excepted. At the close of plaintiffs’ evidence, the defendant moved for nonsuit on the ground that the action was not sustained; the motion was denied, and defendant excepted. The defendant gave evidence tending to show that the butter he received was his own; that he had no knowledge that plaintiffs owned any of the butter, and acted in good faith in receiving the load from Brown. The counsel for defendant requested the court to charge “ that if the butter in question went into defendant’s posses7 sion, at Catskill, without his knowledge that it was the plaintiffs’, then, and in that case, if he took the same care of it that he did of his own, and it was lost without his fault, this action was not sustained; the court refused so to charge, and defendant’s counsel excepted. The counsel for defendant further requested the court to charge “ that if defendant received the butter at Catskill, and was told that there were some firkins of butter of plaintiffs’, and these were not pointed out, but were so mixed that he could not select it without his fault, he had a right to send it to Mew York, and if it was lost without his fault no action would lie; that he was not bound to stop his own butter because some other had been mixed without his fault. The court declined so to charge, and defendant excepted. The defendant’s counsel further requested the court to charge the jury “ that if they credited the defendant’s testimony, he was not guilty of converting the butterwhich the court refused to do, and defendant excepted. The jury found for the plaintiffs; and the exceptions were ordered to be heard in the first instance at General Term. The motion for new trial was denied, and judgment ordered for plaintiffs by the General Term of the third district, and from the judgment entered thereon the defendant, appealed to this court.

      A. Becker, for the appellant.

      S. L. Mayham, for the respondent.
   Davis, J.

The offer to show that one of the plaintiffs had assigned his interest in the cause of action and was not then the owner thereof, was properly excluded. That fact, if proved, would not affect the right to proceed with the action (Code, § 121), nor would it present any question for the jury. The offer also to show that the plaintiffs, other them Mattice” were not partners, was properly excluded. Evidence had been given to show that all the plaintiffs were partners ■ in, or joint owners of the butter in question, and the offer , should have been directed to that fact. It was quite immaterial to show that three of the plaintiffs were not partners aside from the fourth, in the butter, for the plaintiffs’ proof that the partnership consisted of four persons, was necessarily a concession that it did not consist of three.

The motion for nonsuit was correctly disposed of. The plaintiffs had shown substantially that several firkins of this butter, which had been sent to them by Brown, had been delivered to defendant at Catskill; that he had received the (same with notice that some portion of the butter belonged to plaintiffs, and afterwards shipped it as his own to blew York. This was a very clear prima, facie case, and it would have been error to have taken it from the jury by granting the motion for nonsuit.

The defendant gave evidence tending to show that he received the butter in question in good faith, supposing it to be his own, and without any knowledge that it belonged to plaintiffs. He requested the court to charge that “ in that case if he took the same care of it as his own, and it was lost without his fault, this action was not sustained.” The charge as requested would have been proper if the defendant had, under such circumstances, simply received the butter and stored it in his warehouse. Such an act would not have been the exercise of such dominion over it, as would amount to a conversion without proof of a demand and refusal. There would be no sufficient assumption of ownership by a mistaken acceptance of the property so delivered, to render him chargeable for any relation beyond that of bailee; but quite a different question arose when he shipped the butter to Hew York as Ms own. That was an assumption of dominion, which, whether founded on mistake or not, was in hostility to the ownership of plaintiffs. The law on this subject is well settled. “ The proof,” says Brown, J., in Cobb v, Dows (9 Barb., 242), “need not show a tortious taking, or that the defendants acted in bad faith. If it should appear that they obtained the goods fairly from a person whom they had reason to think was the true owner, or if they acted under a mistake as' to the plaintiffs’ title, or under an honest but mistaken belief that the property was their own, they would still be liable to plaintiffs if their acts in regard to it amount to a conversion. If they have taken it into their own hands, or disposed of it to others, or exercised any dominion over it whatever, they are guilty of a conversion, and their liability to plaintiffs is established.” This exposition of the law is fully sustained by the authorities. (Perkins v. Smith 1 Wils., 328; Everett v. Coffin, 6 Wend., 603; Williams v. Merle, 11 id., 80; Saltus v. Everett, 20, id., 267; Hoffman, v. Cason, 22 id., 285; Covell v. Hill, 4 Denio, 323; Allen v. Crary, 10 Wend., 349; Murray v. Burling, 10 Johns., 175; Schroeple v. Corning, 5 Denio, 240; Connah v. Hall, 23 Wend., 462.)

A wrongful intent is not an essential element of the conversion. It is enough in this action that the rightful owner has been deprived of his property by some unauthorized act of another assuming dominion or control over it.

There was nothing in the case to justify the request to charge as to the effect of mixing the butter. It was not mixed in any sense to call for the application of the rule sought to be invoked. It was in separate firkins, distinctly marked with the initials of the maker, and by a cross on the end of each firkin in red chalk; and there was no wrongful act of admixture on the part of the plaintiffs or their agent that could affect its identity or tend to destroy the identity of defendant’s firkins.

¡Nor was it error to decline to charge the jury that “ if they credited the defendant’s testimony he was not guilty of converting the butter.” The charge as given is not stated in the case. We must presume it presented the questions of fact fully and fairly to the consideration of the jury. The court was under no obligation to adopt the form of charge suggested by the request, and thus, in effect, limit the consideration of the jury to the credit to be given to the testimony of a single witness. It, is not necessary to say that such a form of charge would be erroneous. It is clear that it might have a tendency to mislead a jury from the questions of fact to a mere question of the credibility of a witness, and, therefore, its adoption by the court is not a matter of legal right.

The judgment of the General Term should be affirmed.

All the judges concurring,

Judgment affirmed.