author: Seldem, J.

text:
    Merritt v. Thompson, Administratrix, &c.
    Pending an action, the parties stipulated to submit to a referee such items of their mutual accounts as they should not agree upon: the referee not to be bound by legal rules of evidence, but satisfy himself as to the justice of the claims, his decision thereupon to be final and not appeal-able: any sums allowed by him to be added to or deducted from the balance upon the items agreed upon by the parties: judgment to be entered for the balance ascertained. Until such judgment the stipulalation was not to interfere with the proceedings in the suit, and if judgment should be obtained in the suit while ■ the proceedings under the stipulation were pending, the stipulation should be of no effect. The stipulation by its terms was not to be an arbitration, and no admission made by either party in the proceedings was to be admissible in evidence “ if this effort to compromise shall fail.” Eeld, that this was a conditional submission to arbitration, and that after an award, no other proceedings having been had in the suit, the power of the arbitrator could not be revoked so as to prevent judgment.
    The award is equivalent to a special verdict upon distinct issues in relation to the claims submitted, and the court may render judgment upon all the facts, as well those reported by the arbitrator as others established by the admissions in the pleadings.
    The statute prohibiting the recovery of costs in actions at law against executors and administrators, where payment has not been unreasonably refused or neglected, does not apply to suits commenced against the testator or intestate in his lifetime.
    Action commenced in July, 1854, in the Court of Common Pleas of the city of New York, against Martin Thompson, to recover $80,000, alleged to have been received by the defendant at Hong Kong, in China, on the sale of the ship “Mischief,” on the plaintiff’s account. Also, a further sum for the earnings of the ship prior to the sale.
    ■ The defendant, in his answer, alleged that before the sale at Hong Kong, viz., in December, 1853, he sold the ship in San Francisco, as he was authorized to do by a power of attorney from the plaintiff, for $22,000, and that he was ready to account for the proceeds of such sale. He annexed to his answer an account, claiming sundry credits for payments and expenses, and showing a balance in favor of the plaintiff of $2,.675.34, after deducting all credits claimed by him, which he offered to pay, if the plaintiff would assent to the account as stated by him.
    Among the credits claimed by the defendant was a note of the plaintiff for $2,000, dated May 17, 1853, at six months, with interest, which was set up in the answer as a counterclaim. This counterclaim stood admitted on the record, the answer not having been replied to.
    Martin Thompson having died, the present defendant, administratrix mf his estate, was, in June; 1859, by an order of the Court of Common Pleas, substituted as defendant in his stead.
    The action was not brought .to trial in the court, but on the 17th of November, 1859, the parties, under the title of the cause, entered into the following stipulation:
    “ Whereas, the parties in the above entitled suit are desirous that the claims involved in the same be compromised and settled, it is hereby stipulated between the parties hereto, that, for the purpose of a compromise and settlement of said claim, and for no other purpose, the defendant will pay to the plaintiff his share of the amount for which the ship ‘Mischief’ was sold at Hong Kong; * * * and any passage money or other receipts of the ship, deducting therefrom the expenses which said Thompson may have incurred as master of said ship, together with his salary, as settled between the said Thompson and the' plaintiff herein, and any other charges which said Thompson was rightfully entitled to make.
    “ And it is further stipulated, that if the parties do not. agree on all the items of said accounts, or on all the amounts claimed by the defendant, such disputed items or questions, with the accounts and vouchers relating thereto, and the objections made by said Merritt to the same, shall be submitted to Eben B. Crocker, Esq., for his decision thereon: that either party may be heard and produce proofs before said Crocker: that, in settling said accounts and disputed items, the said Crocker shall not be bound by strict legal rules of evidence, but shall satisfy himself as to the justice of the claims, and decide thereupon.

      “ And it is hereby further stipulated, that the decision of said referee shall be taken by both parties as final, and no appeal can be taken therefrom; and if, on such decision of such disputed accounts, any one shall be found to be due to either of the parties, that the same shall be added to or subtracted from the amount which may have been previously agreed upon between the parties, according as the same shall be in favor of or against the party in whose favor the balance of admitted items shall be; and that judgment for the balance ascertained shall be entered, and shall be enforced in all respects the same as if it were a judgment of this court.
    “ And it is hereby stipulated, that the party in whose favor such balance shall be found, shall have full power to enter judg • ment for the same, and that, on the perfection of said judgment, it shall be a bar to all further proceedings in the above entitled suit.
    “ And it is hereby further stipulated, that until such judgment is perfected, this stipulation shall not in any way interfere with the proceedings in the above entitled suit, and that if judgment is obtained in the suit at law during the pendency of the proceedings under this stipulation, then and from thenceforth this stipulation shall be null and of no effect.
    “ And this stipulation shall not be deemed an arbitration, or a discontinuance of this action, but only an effort made, in good faith on both sides, to settle the same, binding in honor upon both, but not to prejudice the legal rights or remedies of either party, in case a settlement cannot be effected by this means. No admission, made on the part of either party during this negotiation, shall be admissible in evidence, if this effort to compromise shall fail. Dated New York, November 17, 1859.”
    Proceeding under that stipulation, the accounts, bills and vouchers of Martin Thompson were submitted to the plaintiff by the defendant, and were examined by the plaintiff, and the items agreed upon as far as practicable; but the parties failed to agree upon all the items, and the disputed items or questions, with the accounts and vouchers relating thereto, the objections made to them by the plaintiff, and the reasons given for their allowance, were submitted by the parties to the referee named therein, for his decision. The whole accounts were presented to the referee, and the items which were admitted, and those which were disputed, were pointed out to him by the parties. Both parties appeared before the referee, and produced proof in regard to the disputed items. The $2,000 note was .presented by Mr. Curtis to the referee, as a charge against the plaintiff, who admitted the validity of the note, but insisted that it was not within the stipulation and could not be allowed.
    On the 23d of May, 1860, the referee made the following report:
    “I, Eben B. Crocker, the referee in the above entitled action, do find and hereby declare, that there was due to William H. Merritt, the plaintiff in'this cause, $19,963.68, on the 29 th day of June, 1854, after deducting all sums received by the said Merritt up to that date; and hereby declare, that there is due to William H. Merritt, from the estate of Martin Thompson, this 23d day of May, 1860, $12,535.60. This sum is due to said Merritt from the proceeds of the sale of ship Mischief,’ from the time of her sale at auction at San Francisco, December 10th, 1853, and after deducting all sums he has received from Martin Thompson, or from his estate, on account of the sale of said ship.

      “ This decision, does not in any way invalidate the note of William H. Merritt, dated May 17th, 1853, in favor of Martin Thompson, for $2,000; and all I have decided is, what was due to William H. Merritt from the sale of the ship Mischief,’ less all sums he has received from Martin Thompson, and from his estate, on that account. Eben B. Crocker.”
    On the 30th of May, 1860, the defendant’s attorney notified the plaintiff’s attorney that the defendant declined to abide by the decision of Mr. Crocker, and elected to proceed with the suit.
    In May, 1861, a motion was made on the part of the plaintiff, at a special term of the Court of Common Pleas, founded on the report, and on affidavits showing the facts, for judgment in accordance .with the report. The motion was opposed by the defendant. It appeared by the affidavits that the referee allowed all the items agreed upon by the parties, and to those added the disputed items as allowed by him, and the balance of such accounts, rejecting the $2,000 note, was the amount specified in his report; that he rejected the $2,000 note, because he did not consider it embraced in the stipulation.
    The motion was granted, and judgment was entered in favor of the plaintiff, for the amount reported as due to him, with interest from the date of the report, and the costs of the action, .after deducting from the report, with the plaintiff’s consent, the amount of the $2,000 note and interest.
    The defendant appealed from that judgment "to the court at general term, where the judgment of the special term was reversed, and judgment entered in favor of the defendant for the costs of the action. The plaintiff appealed to this court.

      William M. Evarts, for the appellant.

      Gilbert Dean, for the respondent.
   Seldem, J.

It was conceded on the argument by the respondent’s counsel, that it was erroneous to enter final judgment against the plaintiff on the appeal in the court below,, and that for that error the judgment must now be reversed; but it was insisted that on such reversal, the judgment of the special term should not be affirmed, but that a new trial should be granted, in accordance with the presumed intention of the court below. The only question, therefore, for consideration here is, whether there was any error in the judgment entered at the special term.

In order to decide this question, it is necessary, in the first place, to determine the character of the agreement entered into by the parties, which forms the basis of the judgment. The defendant’s counsel insists that it constituted neither a reference nor an arbitration, but only an attempt to compromise the matters in dispute. It clearly did not constitute a reference within the statute authorizing references. It was not ordered by" the court; it did not refer the whole case, or any specific question of fact involved in it. The questions to be decided were to be determined by the subsequent action of the parties. The .referee was not to be governed by the legal rules of evidence; was to find facts only, and not conclusions of law; and his decision was to be final and conclusive. In all these respects the proceeding differed from a reference. (Code, §§ 271, 272.) The defendant’s counsel said correctly, that it was an attempt at a compromise; but it was much more than that; it was an attempt to compromise in a particular manner, with an appointment of an arbitrator (or referee, as he is called in the stipulation), with power to decide, finally and conclusively, all the questions in regard to which the parties should fail to agree ; and with the further authority to the prevailing party, to enter judgment for the amount which should be found due to such party, as the balance of the items agreed upon by the parties, and allowed by the arbitrator. This agreement was a conditional submission to arbitration. The declaration of the parties that it should not be deemed such, did not change its character. It gave to Mr. Crocker, when he came to act under it, the powers of an arbitrator. This was so held by the general term of the Common Pleas; and it appears from the opinion of that court that the judgment of the special term was reversed solely on the ground that the award of the arbitrator was void for want of finality, “ as it did not take into account the note of the plaintiff, which constituted a counterclaim, undisputed in the action.” The same ground is relied upon by the respondent’s counsel to sustain the reversal.

■ Under the submission in this case, it would doubtless be fatal to the award if any portion of the matters in dispute submitted to the arbitrator should be found not to have been decided by him (4 Duer, 138; 5 Cow., 197); although the question, whether an award upon a part of the matters submitted is valid, does not depend upon any absolute rule of law, requiring the determination of all the matters submitted, to give validity to an award, but upon the terms of the agreement of submission. (3 M. & W., 206.) The arbitrator in the present case has complied with the requirements of the submission in this respect. The “ disputed items or questions ” only were submitted to him “ for his decision,” and the note was not among them. That was conclusively admitted by . the record; and it was also admitted by the plaintiff, before the arbitrator, to be a valid claim against him, the parties differing only upon the question whether it was within the terms of the submission. It was not denied that the arbitrator passed upon all the disputed items or questions. Nothing, therefore, can properly be alleged against the report, upon the ground of omission.

It is further insisted, in behalf of the defendant, that the arbitrator exceeded the powers conferred upon him by the stipulation, in determining the.amount for which the ship was sold at Hong Kong; and also in making or stating an account; and that the general report made by him was therefore void. I think it is obvious, from the terms of the stipulation, that the “ compromise and settlement ” were designed to embrace all the matters in dispute between the parties, and that the submission was to embrace the same matters, so far as they should not be agreed upon. The price of the ship was one of the items of the account submitted by the defendant to the plaintiff under the stipulation, and in regard to which they failed to agree, the plaintiff claiming a larger sum than the defendant would allow. Both parties produced proof before the arbitrator in reference to this item, and the affidavits show that it constituted “the principal subject of investigation” before him. Until it was disposed of, the plain object of the stipulation could not be secured. It does not appear to have been suggested to the arbitrator that that was not one of the “ disputed items ” submitted for his decision, and he was clearly right in embracing it in his award.

It is not distinctly declared in the stipulation who was to “ add to or subtract from the amount previously agreed upon” the sum which should be found due to either party upon the disputed items, but it is fairly to be inferred that it was to be done by the arbitrator. The parties appear to have acted upon' this assumption, in submitting all the items to him, as well those agreed upon by them as those which were disputed, and the expression, “ settling said accounts and disputed items,” shows that this course was contemplated when the stipulation was made. The arbitrator was justified, therefore, in reporting the balance of the whole account thus submitted. Even-if this union of the two classes of items was not authorized by the stipulation, as it was a merely clerical act, which could-not have injured either party, it would not have invalidated-the award. (2 Peters Cond. U. S. R, 463; 1 Seld., 489.)

The failure to include the $2,000 note in the award,, as has-been shown, was not the fault of the arbitrator; and, although a literal reading of the submission, by itself, would have entitled the plaintiff to a judgment for the sum awarded, rejecting the set-off of the note, such a course would have been, not-only contrary to the intention of the parties, but, as the record stood when the report came before the court, manifestly illegal. The submission and award should be read and interpreted in connection with the pleadings in the cause. Thus read and understood, they are equivalent to a special verdict upon a .distinct issue of fact made by the pleadings in a cause, upon which, together with other facts admitted by the pleadings, tbe court pronounces judgment. (Barto v. Himrod, 1 Seld., 485; Molineux's Case, Jenk., 102; Bac. Abr., Verdict, W.; Lee v. Lingard, 1 East, 403.) By the pleadings, the $2,000 note stood conclusively admitted, as due to the defendant. The submission did not touch that item, but only those in regard to which the parties were at issue. On the coming in of the award, showing a larger sum due to the plaintiff on the disputed items, the duty devolved on the court of rendering the appropriate judgment on all the facts, those admitted and those reported. This was done, and precedents are not wanting to show that the court was authorized to render such judgment. (Yates v. Russell, 17 Johns., 461; Ex parte Wright, 6 Cow., 399; Farrington v. Hamblin, 12 Wend., 212; Green v. Patchin, 13 id., 293; Bank of Monroe v. Widner, 11 Paige, 529; Prentice v. Reed, 1 Taunt., 152; Salter v. Yates, 2 M. & W., 67; Platt v. Hull, id., 391; Miller v. De Burgh, 4 W. H. & G., 809; Gray v. Gwennap, 1 B. & Ald., 107.)

The record shows that the defendant, in opposing the motion for judgment, claimed, and that the plaintiff consented to, the deduction of the amount of the note from the amount awarded as due to the plaintiff; and doubtless both parties would be precluded from alleging, on appeal, that such deduction was erroneous. I am satisfied, however, that, without reference to the consent of the parties, the court was bound to render such judgment, and that any other would have been erroneous.

It is further insisted, on the part of the defendant, that either party was at liberty to revoke the submission at any time before the entry of judgment, and that the revocation after award was in season to prevent the judgment. This position is.based upon that clause of the stipulation which declares, that “ until judgment is perfected, this stipulation shall not in any way interfere with the proceedings in the suit,” &c. It is not necessary to decide what might have been the effect of this clause, if either party had elected to proceed under it before the matters in dispute were finally submitted to the arbitrator; but it is very certain that it did not authorize a revocation of the power of the arbitrator after the final submission of those matters to him for decision. (2 R. S., 544, § 23; 11 Paige, 534; Ex parte Wright, 6 Cow., 399.)

No objection has been made to the merits of the award, and indeed none could be made which did not involve corruption or misconduct on the part of the arbitrator, or an award not within the submission. (Kleine v. Catara, 2 Gallis., 61-71; Smith v. Cutler, 10 Wend., 589; Emmet v. Hoyt, 17 id., 410; Lowndes v. Campbell, 1 Hall, 598.)

The costs were properly allowed. They followed the result of the recovery, upon the report of the special tribunal appointed by the parties to try the issues joined in the action, as they would have followed the result of a like verdict upon the same issues, if they had been tried by a jury. I do not see that the manner of the trial can make any difference. (Code, § 304.) Lord Kenyon said, in Lee v. Lingard (supra): “ Such finding is in the place of the verdict, and must be considered the same as if the jury had originally found so much to be due; and then all the same consequences ensue.” The English practice differs from ours, in requiring a verdict to be taken, to be modified according to the award of the arbitrator; but that is a difference of form and not of substance.' The sections of the statute prohibiting the recovery of costs in suits at law, against executors and administrators, where payment has not been unreasonably resisted or neglected, and where there has been no refusal to refer the claims, apply to suits commenced against such executors and administrators, and not to suits commenced against the testator or intestate in his lifetime. I think the contrary construction given to this statute in McCann v. Bradley (15 How., 79), cannot be sustained. (2 R S., 90, § 41; Benedict v. Caffee, 3 Duer, 669; Lemen v. Wood, 16 How., 286.)

There was no error in the judgment rendered at the special term, and the judgment of the general term should be reversed, and that of the special term affirmed.

Rosekrans, J., delivered an opinion to the same effect, and all the judges concurred.

Judgment reversed, and judgment at special term affirmed.


source: Caselaw Access Project

author: Balcom, J. Davies,. J.

license: Public Domain

text:
    Moore v. Westervelt, Sheriff.
    Coal on board a vessel was seized by the sheriff in replevin against the master. It was left on the vessel, with the master’s consent, in charge of the sheriff’s keeper, was sunk and damaged. In an action by the plaintiff in the replevin, who established his title, held, that the degree of diligence required of the sheriff was stated favorably enough to the plaintiff by a charge that it was his duty to take such steps to insure the safety of the coal as a careful, prudent man of good sense, well acquainted with the condition of the vessel and her location with regard to exposure to storms, might reasonably be expected to take if the coal belonged to himself.

      It seems that the rule as above stated is sufficiently stringent for a case where the sheriff removes the property from the possession of the defendant and takes it entirely under his own charge, and that under the circumstances of this case a lower degree of care, viz., ordinary diligence, is all that is required of the sheriff.
    Appeal from the Superior Court of New York city. Action to recover damages for the alleged neglect of the defendant, as sheriff of that city, to keep in a secure place and deliver to the plaintiff a cargo of anthracite coal, which was taken possession of on board the schooner Calcutta, at a wharf on Bast River, by the defendant, by virtue of papers delivered to him in an action brought to recover the possession of such coal, by the plaintiff in this action, against one Lewis Hoffman, who was the master of the schooner. The schooner was fastened to the wharf. The sheriff did not remove the coal from the schooner, but left a person on board in charge of the coal, with the assent of the master. Within three days after the sheriff thus took possession of the coal, the schooner and coal were sunk in Bast River, during a gale of wind, which sinking damaged the coal that was not lost; and the plaintiff was put to considerable expense in raising that portion of the coal not lost. Hoffman did not take any steps to have the coal redelivered to him, and the plaintiff became entitled to the same, at the expiration of three days from the time it was seized by the sheriff, according to sections 209, &c., of the Code. The plaintiff recovered a judgment in his action against Hoffman, entitling him to the possession of the coal; and he subsequently brought this action. Evidence was given by both parties as to whether the schooner was properly fastened" or duly taken care of, and as to whether the schooner or coal was sunk by reason of any negligence on the part of the defendant or the persons having charge of the same, after the defendant seized the coal and claimed to have possession of it.
    The action was tried several .times. (See 1 Bosw., 357; 2 Duer, 59.) On the last trial, Charles H. Hallenbeck, a witness for the defendant, testified that he had been in freighting estab* _ lishments seven years, where they had vessels running from Hudson to New York; that he had been a clerk on board of a steamboat some three years; that he had charge of mooring the vessel when the captain was off, though he did not leave that altogether to his charge, but to his and the pilot’s; and that he thought he (the witness) understood it. He described the situation óf the schooner, and testified that it was .fastened at the bow and stern with hawsers, and that he had charge of the coal, by direction of the defendant. He also stated that the hawsers were a large rope and the kind usually used for fastening vessels. The defendant’s counsel put this question to this witness: “Please state what was the condition of the fastenings of this vessel as to safety.” It was objected to, on the ground that it was not a question of science, and that the jury were just as competent to judge of it as the witness. The objection was overruled, and the plaintiff’s counsel excepted. The witness answered, “I should judge that she was safely moored.” By the court: “You mean to say, that the fastenings were proper fastenings for a vessel in that condition.” Answer: “Yes, sir; I have seen vessels, time and time, moored in the same way.” By the court: “ In ordinary times?” Answer: “Yes, sir.” Question: “With reference to a storm, how was it?” Answer: “I could not say; it would depend upon how severe the storm would be; sometimes our ships have broken them, and at other times, with a storm not quite so heavy, they would not part them.”
    Evidence was given that the schooner was leaky: as to the severity of the gale: as to the manner the schooner was taken care of,; and as to the circumstances under which she was sunk. It appeared, among other things, that Hoffman, the .master, stated to Hallenbeck, the person left in charge of the coal by the sheriff, that the vessel was in danger of sinking, by a storm then coming up, and that he desired to remove her to the other side of the pier, where he thought she would be more safe, but Hallenbeck refused to permit her to be moved.
    The judge charged the jury that the great question in the case was whether the sheriff, after having taken the coal into -his possession, was guilty of such negligence, in regard to its care and preservation, as occasioned its injury and consequent loss to the plaintiff; that it was the duty of the sheriff to take such steps to insure the safety of the coal as a careful, prudent man of good sense and judgment, well acquainted with the condition of the vessel and her location with regard to exposure to storms, and having all the power of the sheriff in the matter, might reasonably have been expected to take, had the coal belonged to himself; that if the jury came to the conclusion that the sheriff did not take that degree of care for the preservation of the coal he had thus indicated, and that the injury was occasioned by the negligence of the defendant or his officers, the plaintiff would be entitled to a verdict. The plaintiff’s counsel interposed: “I ask the court to charge that the sheriff is responsible for the negligence of the master and crew after he took possession.” The judge then said: “ The sheriff was bound to do this: If such an owner'as I have indicated would have taken the coal from the vessel as it lay at the wharf, in the first instance, the sheriff was bound to do it. He was bound to know the condition of the vessel, whether it leaked, whether it was seaworthy, for the place in which it lay, how deeply laden, everything in regard to it; and he was bound to put on board the vessel, if necessary, such men as would pump her out and keep her in a condition to insure the safety of the coal.” The defendant’s counsel interposed: “I ask the court to charge the jury that if a prudent man, in a case of his own vessel, would not have removed her in the storm, the sheriff would not be bound to.” By the court: “ Certainly he would not.” To which the counsel for the plaintiff excepted.
    The following requests of the plaintiff’s counsel to charge the jury were presented to the court before the charge was made, viz.: “ 1st. That the sheriff was bound to take more than ordinary care of this property, and if for the want of more than ordinary care the property was lost, he is responsible ; 2d. That if the sinking happened from the want of due caution, either by the sheriff, deputy sheriff, captain, master or hands of the vessel, then the sheriff is responsible.” The plaintiff’s counsel separately excepted to the refusals of the court to charge the jury as requested.
    The jury rendered a verdict in favor of'the defendant, and judgment was entered on the verdict in favor of the defendant, for costs. The Superior Court, at general term, affirmed the judgment, and the plaintiff appealed to this court. The decision of this court, when the cause was here the first time, is reported in 21 Hew York Reports, page 103.

      A. J. Vanderpoel, for the appellant.

      Horton H. Burlock, for the respondent.
   Balcom, J.

The witness, Hallenbeck, had had some experience in mooring vessels, and said he thought he understood it; he stated how the schooner, having the coal in question on board, was moored; and I am of the opinion he.was competent to answer the question: “ What was the condition of the fastenings of this schooner, as to safety.” The business of mooring vessels required skill to do it properly; but Hallenbeck possessed enough to render his opinion, as 'to whether the schooner was safely moored, competent evidence, though it certainly was not entitled to much weight, and probably did not have much influence with the jury.

When the cause was in this court the first time, Judge Selden intimated an opinion that the sheriff was responsible for more than ordinary diligence in taking care of the coal; but the court did not so decide. According to section 209 of the Code, it was the duty of the sheriff to take the coal and retain it in his custody; and section 215 required him to keep it in a secure place and deliver it to the party entitled thereto, who was the plaintiff, after the expiration of three days, as Hoffman did not take any steps for its redelivery to him, pursuant to section 211. But the defendant, as sheriff, did not, under the circumstances, become an insurer of the coal. (21 N. Y., 103.) In Jenner v. Jolliffe (6 Johns., 9), Thompson, J., in delivering the opinion of the court, said: “If the loss of the timber happened while it was held under the attachment, and without the negligence of the officer, the defendant ought not to be responsible for it.” In Browning v. Hanford (5 Hill, 588), Cowen, J., was of the opinion Justice Story was right in putting the general liability of officers having the charge of property on the same footing as that of bailees for hire. (Story on Bailments, 3d ed., § 130.) Edwards says: “ A sheriff, levying upon goods, must use due diligence to keep them safely, to satisfy the execution. But he is not an insurer, and is not, like a common carrier, answerable for a loss of the goods by fire. His capacity as an officer is not considered as fixing a more rigorous measure of liability upon him than if he were a private person.” It seems that the views of this learned author, in regard to the liability of sheriffs having charge of property, coincide with those of Justice Story. (Edwards on Bailments, p. 59.)

When a sheriff takes goods in execution, or by attachment, or in an action where the plaintiff seeks to recover possession of them, he becomes a bailee for the benefit of all parties interested, certainly for the benefit of the party who sets him in motion ; and “ where the bailment is beneficial to both parties, as in case of pledging or letting to hire, the bailee must answer for ordinary neglect.” (1 Cow. Tr., 2d ed., p. 56.) A bailee for hire, or where the bailment is beneficial to both parties, must exercise ordinary diligence in taking care of the property he has in trust, which is the care that every person of common prudence, and capable of governing a family, takes of his own concerns. The converse of this is, the omission of that care which such a person takes of his own concerns, and is termed ordinary neglect. (Edwards on Bailments, 44.) I am unable to see why a sheriff should be required to exercise any greater diligence in taking care of property in his custody, than a bailee for hire; and I am of the opinion, the degree of diligence each is bound to exercise is the same.

If I am right in this conclusion, the charge was as favorable to the plaintiff as it should have been. The charge was, that it was the duty of the sheriff to take such steps to insure the safety of the coal as a careful, prudent man of good sense and judgment, well acquainted with the condition of the schooner and her location with regard to exposure to storms, and having the power of the sheriff in the matter, might reasonably have been expected to take had the coal belonged to himself. The subsequent remarks of the judge, that if a prudent man, in a case of his own vessel, would not have removed her in the storm, the sheriff was not bound to, did not make the charge exceptionable. If'the sheriff did as the judge charged it was his duty to do, he certainly exercised ordinary care in taking care of the coal; and his omission to remove the schooner, if a prudent man would not have done so in the storm, provided she had been his own, was not ordinary neglect. The jury had previously been instructed that the sheriff was bound to know the condition of the schooner, whether it leaked, whether it was seaworthy for the place in wdiieh it lay, how deeply laden, everything in regard to it; and that he was bound to put on board the schooner, if neces.sary, such men as would pump her out, and keep her in a condition to insure the safety of the coal. This is all a careful, prudent man could have known, or would have done, if he had owned the schooner. And, as I understand the charge, it made the sheriff responsible for the alleged negligence of the master and crew of the schooner after he took possession, so far at least as they had anything to do with the schooner or coal; and in this view of the charge, the refusal of the judge to repeat or state to the jury the second request of the plaintiff’s counsel was not error, for he had already charged the same proposition, in legal effect.

The first request of the plaintiff’s counsel to charge the jury was rightfully refused, because it was a proposition that the sheriff was bound to take more than ordinary care of the coal; and that if for the want of more than ordinary care the same was lost, he was responsible.

We have nothing to do with the question, whether the verdict of the jury was against evidence. The decision of the court below that it was not, is conclusive upon that point.

These views lead to the conclusion that the judgment of the Superior Court should be affirmed.

Davies,. J.

The knowledge which the witness Hallenbeck had, fully authorized him to express an opinion as to the condition of the fastenings of the vessel as to safety. (Price v. Powell, 3 Comst., 322; Bearss v. Copley, 6 Seld., 93; Pullman v. Corning, 5 Seld., 93.) In Bearss v. Copley, a witness had testified that a certain injury to hides could not have been caused by the plaintiff’s negligence, but that it was an injury in the hides before they came to the tannery. It appeared that the witness had been engaged in the tanning business a little over four years, and had done all kinds of work in the process of tanning, but that he had abandoned the business and was then a student-at-law. Gardiner, Ch. J., said, in the absence of all proof to the contrary, experience for this length of time was prima facie evidence of the competency of the witness to speak upon the subject. There was nothing in the change of the employment, from tanning hides to the study of the law, which would necessarily deprive him of the skill acquired in' his original trade. The evidence was, therefore, properly admitted.

The exceptions to the charge made, and to the refusals to charge, present, in fact, but one question, that is, the extent or degree of care which the sheriff was called upon to exercise for the safety of the coal, while in his custody, under the process mentioned. The court holding that he was bound only to exercise such care as a careful, prudent man, of good sense and judgment, would take of his own property; while the plaintiff insisted that the sheriff was bound to do more than this; in his language, “ to take more than ordinary care.” On the trial of this case, which was reviewed by this court (21 N. Y., 103), the rule laid down by Judge Story, in his work on bailments (§ 130), in respect to the liability of an officer, circumstanced like the defendant, was questioned. That rule was: “He would doubtless be responsible for gross negligence and fraud; but whether he would be responsible for ordinary negligence does not appear to have been decided by any adjudged case, although, as he is a bailee for compensation, it may be thought that he ought to be bound by the common rule in such- cases to ordinary diligence.” Judge Selden thought this was stating the rule too faintly, when the sheriff removes the property from the possession of the defendant and takes it entirely under his own charge. But this court thought the sheriff was excusable, under the circumstances, in not removing the coal, and expressed the opinion, that in this case the sheriff was responsible for any negligence or want of ordinary skill on the part of either the man employed to watch, or of the master of the schooner; for, by leaving the coal in charge of the latter, without other control than that of a man to watch and see that the vessel was not removed, he necessarily made the master his agent to see to the security of the coal, and became, therefore, responsible for any negligence or want of skill of the latter in taking care of the property. This court held, therefore, that in this- case the sheriff was responsible for the want of ordinary care on his part, or on the part of the agent employed by him. Common, or ordinary diligence, is that degree of diligence which men in general exert in respect to their own concerns. It may be said to be the common prudence which men of business and heads of families usually exhibit in affairs which are interesting to them. (Story on Bail., § 11.) Or, as Sir William Jones has expressed it, it is the care which every person of common prudence and capable of governing a family takes of his own concerns. (Jones on Bail., 6; Tompkins v. Saltmarsh, 14 Serg. & Rawle, 275.)

Upon the circumstances, as they are developed in this case, this court' was of the opinion that the defendant was only liable for any negligence or want of skill in the care and man agement of this particular property. But the judge below, on the trial of this case, assuming the remark of Judge Selden, that the doctrine enunciated by Judge Stony was somewhat too faintly stated, as applicable to the case of this defendant, proceeded to lay down a more stringent rule in governing this case, and which would have been the correct rule in an ordinary case, when the sheriff removes the property from the possession of the defendant, and takes it entirely under his own charge. In such a case he would be held to high or great diligence, which is of course extraordinary diligence, or that which very prudent persons take of their own concerns. (Story on Bail., § 16.)

The judge at the trial has held this defendant to the doctrine of a borrower’s liability, who is bound to extraordinary diligence, and responsible even for the slightest neglect; who is bound to exercise all. the care and diligence that the most careful,persons are accustomed to apply to their own affairs; and, in his case, a want of the most exact and scrupulous caution is regarded by the law as a culpable neglect. (Coggs v. Bernard, 2 Ld. Raym., 909; Vaughan v. Menlove, 3 Bing. N. C., 468; Scranton v. Baxter, 4 Sandf. S. C., 5.) In Coggs v. Bernard (supra), Lord Holt said, that in the third sort of bailment, scilicet locatio, or lending for hire, the bailee is also bound to take the utmost care, and to return 1he goods, when the time of the‘hiring is expired. After a quotation from Bracton, he adds: “ From whence it appears that if goods are let out for a reward, the hirer is bound to the utmost diligence—such as the most diligent father of a family uses, and if he uses that he shall be discharged.” In Scranton v. Baxter (supra), Chief Justice Duer said the defendant there was liable as a borrower, and that the rules of law fixing the extent of his liability are exceedingly plain and undisputed. He was bound to extraordinary diligence, and was responsible even for the slightest neglect, de levissima culpa; he was bound to exercise all the care and diligence that the most careful persons are accustomed to apply to their own affairs ; and in his case, it is the omission of the most exact and scrupulous caution that is regarded by the law as a culpable neglect.

It is obvious, therefore, that the most stringent rule has' been applied to this defendant, and much more -rigid than I think Judge Selden intended to apply to a sheriff who took the property, seized on process, into his own care and possession. The plaintiff has, therefore, no cause of complaint with the rulings of the judge in this case, upon the trial. They were much more favorable to him than the facts in this case would warrant. The exceptions thereupon taken cannot he sustained, and the judgment must be affirmed, with costs.

Emott, J., expressed no opinion; all the other judges concurring,

Judgment affirmed.


author: Denio, Ch. J. Marvin, J.,

text:
    Shaw v. Dwight et al.

    A judgment creditor, having no title or specific lien, may maintain an action to obtain the cancellation of prior judgments which are apparent ' liens upon the lands of his debtor, but which he alleges to have been paid, and this without alleging any collusion on the part of the debtor to keep the judgments on foot to defraud his creditors.
    It is unnecessary, to maintain such action, that the creditor should have issued execution to the county in which the lands lie. 'It is sufficient that an execution has been returned unsatisfied in the county where the debtor resides, and that his judgment is a lien on the land.
    Appeal from the Supreme Court, where judgment had been given directing the cancellation of certain judgments, after the trial of an issue in respect to their having been paid. The • plaintiff and the defendant in such j udgments were both defendants in this action. The appeal was by the plaintiff in those judgments. The facts are sufficiently stated in the following opinions.

      William C. Noyes, for the appellant.

      John H. Reynolds, for the respondent.
   Denio, Ch. J.

The plaintiff, a judgment creditor of the defendant St. John, commenced this action to obtain a judgment of the Supreme Court for the setting aside and cancellation of two prior judgments which St. John had confessed in favor of the defendant Dwight, on the ground .that they had been paid, but were kept on foot by Dwight, who threatened to sell the land of St. John thereon. The judge before whom the case was tried found the fact of such payment, and judgment was given directing their cancellation. This judgment is claimed to be erroneous, because, as it is argued, a suit will not lie by a judgment creditor against a person having a prior judgment which is alleged to be kept on foot fraudulently or inequitably; but it is urged that one or both of the parties must have obtained a title to the land claimed to be incumbered, before such a litigation can be entertained. It was conceded that the debtor owned lands in the counties of Wayne, Tompkins and Tioga, and all the judgments were docketed in those counties. The plaintiff had caused to be issued, and returned nulla bona, an execution on his judgment to the sheriff of the city and county of New York, in which city the defendant resided, but had not issued any execution in either of the counties where the lands were situated; but the defendant had placed executions on his judgments in the hands of the sheriffs of those counties, who had advertised the lands for sale thereon. The gravamen of the action was, that the plaintiff’s remedy on his judgments against these lands' was embarrassed by the judgments of Dwight, and his claim to enforce them by sale on the executions. The further objection to the action is, that the plaintiff had not caused executions to be issued to the counties where the lands were.

It is easy to see that a judgment creditor may be greatly prejudiced by having prior judgments, which are prima facie superior liens on the land, set up as operative, when they have been actually paid. The case is the same, as respects him, as though they had been fraudulently confessed to defraud him in enforcing his judgment. It is not a sufficient answer that he may sell, regardless of the pretended prior judgments, for persons would not be likely to bid the value of the land, when it was known that there were prior liens on record, which were claimed to be on foot; and however strong the plaintiff’s own convictions might be of his ability to show the payment, he could not safely offer to give the full value of the property, while the validity of the prior liens remained undetermined. The case would, therefore, seem to fall within the principle on which courts of equity are accustomed to relieve a judgment creditor against impediments fraudulently or inequitably interposed to his legal remedy. If the plaintiff had title to the land which the defendant was threatening to sell on judgments against a predecessor in the title, which had been paid, the equitable remedy would be very plain, and I do not understand that it would be questioned by the defendant's counsel.. The examples of such suits are very numerous. (Pettit v. Shepherd, 5 Paige, 493; Kimberly v. Sells, 3 John. Ch., 467.)

Then, it. is a very familiar bead of equity jurisdiction to set aside, at the suit of the judgment creditor, conveyances by the debtor which have been interposed to defraud such creditor, and which, if allowed to stand, would embarrass his remedy. (Hendricks v. Robinson, 2 Johns. Ch., 283; McCulloch v. Colby, 5 Bosw., 477; The N. A. Fire Ins. Co. v. Graham, 5 Sandf. S. C., 197, and cases cited.) I refer to only a few of these cases,, because the doctrine is not questioned, and abundance of authorities are mentioned in those cases which I do cite.

• It is no objection, therefore, to a suit of this nature, that the plaintiff has no title to the land, but only a general lien by judgment; nor is it any objection, in a case where the plaintiff has a rightful standing in court, that the defendant does not inequitably set up a title, but claims only a lien by way of judgment. It is not easy to perceive, therefore, that there is any difficulty in this case which would not equally exist in one or the other of the classes of cases which I have mentioned. It has been truly argued, that the plaintiff in this case has a perfect right to sell the lands of St. John on his execution, and to try the question as to the validity of the prior judgments, when that question should hereafter arise in ejectment on the sheriff’s deed, or otherwise; and so he would have, if the claim of the defendant Dwight was under a prior conveyance from the debtor, which was fraudulent against creditors, or invalid for any other cause not appearing upon the papers themselves. The motive for affording the remedy in either case is the same, namely, that the interest of the creditor asking for the remedy might be materially prejudiced, if he were compelled to go on blindly, without ah adjudication as to the validity of the obstacle, interposed against his process. Then, it may be said, that perhaps the defendant would never attempt to enforce his judgments, and that a suit ought not to be entertained where there is no certainty, but only a possibility, that the plaintiff will be prejudiced, if things remain as they are. But the same answer may always be given, where a person seeks the aid of the court to remove a cloud upon his title. Perhaps he may never be disturbed, and if he should be, it will then be time enough, it may be said, to trouble the courts with the question. But this objection is not generally allowed to prevail, unless the documents under which the defendant claims are invalid for reasons appearing on their face. (Scott v. Onderdonk, 14 N. Y., 9; Lounsbury v. Purdy, 18 id., 515.)

But although a case like the present, where both parties have judgments only, and not a title, does not seem often to have arisen, a single precedent has been referred to where that feature appeared. It was Burns v. Morse (6 Paige, 108), The plaintiff recovered a judgment against one Morse, but just before the judgment was entered, Morse confessed a judgment in favor of the defendant for a debt not yet due and payable, and which was secured by mortgage upon real estate; the object being to defraud the plaintiff. An injunction was issued, restraining the defendant from proceeding on his judgment, and it was sustained by the Chancellor on appeal. The casé is not.precisely in point, the property which it was sought to shield from the plaintiff’s process being personal; but the main objections which are here stated would be equally applicable there, and the appeal to equitable interposition is less strong than in the case of lands.

The learned counsel for the defendant Dwight has referred to the remedy formerly in use under the writ of audita querela, That writ, it seems, was maintainable by a party having legal title to land where disturbance was threatened by one claiming. to have a judgment or recognizance, binding the same land, but which it was unjust, under the circumstances, to enforce; but it could not be maintained, it is said, by one having a mere lien and not a title. This remedy is very much, if not wholly, Out of use, and there is no principle requiring us to import the rules which governed ■ it, and which were more or less artificial, depending upon reasons which have become obsolete,' into our system of modern remedies. Besides, these rules prove too much; for it seems to have been well settled that, if the conusor of a statute staple or statute merchant, which were liens very much in the nature of judgments, aliened thq land bound, the alienee could not have an audita querela until his possession had been actually disturbed by execution Sued out; whereas, nothing is more common at this day than to afford a remedy to a party, having a conveyance of lands subject to a judgment which it would be inequitable to enforce, by bill in equity quia timet, or, in modern language, to remove a cloud upon his title.

I am of opinion that it was not necessary for the plaintiff, before commencing this action, to issue an execution to the counties where the lands were situated. It was necessary for him to show that he had exhausted his remedy against the debtor’s personal property; but this was done, prima faeie, by the return of nulla Iona to the execution issued to the county in which he resided. It is not pretended that he had anything in the other counties mentioned, except the real estate, or that he ever resided in them. There Would be the same necessity of issuing execution to every sheriff in the State, so far as personal property is concerned, as to these counties. ’ In the eases above cited from the Superior Court of New York, relief was denied to the judgment creditor, for the reason that he had not, before commencing the action, caused any execution to be issued to any county; 'and it was shown that the necessity for such process, before maintaining a suit to remove an obstacle to the creditor’s process against the land, was, that it could not be otherwise legally shown that the debt could not be made out of personal property. In a case where there is no personal estate, and the absence of it is shown in a legal manner by an ineffectual fieri facias, it would be an idle form to issue another execution to the county where the land was situated, when the law, as has been shown, does not require that the land should be sold on the execution before the action to remove an impediment can be sustained.

In Hendricks v. Robinson, above cited, the plaintiff, a judgment-creditor, sought to reach personal as well as real estate; and the Chancellor said, it seemed to be required that the plaintiff should have made an experiment at law and bound the property by actually suing out execution at law. The remark must have had reference to the personalty of the debtor, for the cases to which the Chancellor refers related to that species of property; and in Brinckerhoff v. Brown (4 Johns. Ch., 671), the learned Chancellor stated the rule with great accuracy, thus: “If the plaintiff seeks aid as to real estate, he must show a judgment, creating a lien upon such estate; if he seeks aid in respect to personal estate, he must show an execution, giving Mm a legal preference, or lien upon the chattelsand the position is supported by a careful examination of the cases. (See also Spader v. Hadden, 5 id., 280; McElwain v. Willis, 9 Wend., 548; Beck v. Burdelt, 1 Paige, 308; Clarkson v. De Peyster, 3 id., 320; Dix v. Briggs, 9 id., 596; Coe v. Whitbeck, 11 id., 42.) Where the subjects sought to be reached are things in action, an execution returned is necessary by the express provision of the statute. (2 R. S., 174.) And even where it is sought to subject land by removing an obstruction to the plaintiff’s execution, I am of opinion that a fieri facias should be returned unsatisfied, for the purpose of showing that the plaintiff is under the necessity of asking the aid of the court, on account of his inability to collect his debt by process against the debtor’s goods or chattels, but not for the purpose of perfecting his lien upon the land, for that is bound as strongly as it can be by the docketing of the judgment. It is sufficient, therefore, if the execution be issued to the county where the goods would be likely to be found, if there were any, and that was done in this case.

I have looked into the other exceptions; but they are obviously not well taken, and do not call for any particular remarks. The judgment must be affirmed.

Davies, Wright, Selden, Rosekrans, and Balcom, Js., concurred.

Marvin, J.,

(dissenting.) When property is subject to an execution, and a fraudulent obstruction is interposed to prevent the sale, a judgment creditor may have his action to remove the obstruction, as soon as he has obtained a specific lien upon the property, by the issuing of his execution; and the obstruction being removed, he may proceed to enforce the execution by the sale of the property, although, as Chancellor Walwobth says, an actual levy is probably necessary to enable him to hold the property against other execution creditors or bona fide purchasers. (Beck v. Burdett, 1 Paige, 305.) In the case just cited, the object of the bill was to set aside an assignment of personal property, on the ground that it was fraudulent as to creditors. The bill contained the proper allegations of the issuing and return of execution unsatified, but it turned out that, in fact, the bill was filed a day or two before the execution was returned, and it was dismissed. If the plaintiff had levied upon such of the assigned property as was the subject of seizure by execution, and then filed his bill impeaching the assignment, the court would have entertained jurisdiction as to the property seized, in aid of the execution ; but such suit would not have reached any property of the debtor, whether assigned or not, which was not the subject of seizure, and sale on execution. As to such property, a court of equity gives no relief until an execution upon the judgment has been properly issued'and returned unsatisfied, when a judgment creditor’s suit may be instituted to obtain satisfaction of the judgment out of the property of the defendant, which cannot be reached by the execution at law. See Brinkerhoff v. Brown (4 Johns. Ch., 671); Wigins v. Armstrong (2 id., 144); Hendricks v. Robinson (id., 290); Hadden v. Spader (20 Johns., 554), in which the jurisdiction of the Court of Chancery, in aiding the collection of judgments, when the remedy at law has been exhausted, is fully considered. I am not aware of any case where that court has aided an execution against the land of the debtor, upon which the judgment was a lien, in the absence of a sale made to' defraud creditors, ór an incumbrance created or suffered for the like purpose. The lien of the judgment creditor being perfect, in the absence of fraudulent obstruction, his remedy at law is ample, and, in the language of Chancellor Kent, the court will not assume jurisdiction, in taking execution upon judgments at law into its own hands. Such power would be oppressive to the debtor and to the court. (4 Johns. Ch., 676.)

In Clarkson v. De Peyster (3 Paige, 322), Chancellor Walworth, in some general remarks, says, among other things, that the complainant might have filed his bill to clear the real estate of the judgment debtor from a mortgage fraudulently interposed, at any time after the docketing of his judgment, without suing out execution. (1 Atkyns on Conv., 513; 1 Paige, 305; 4 Johns. Ch., 677.) I have not been able to consult Atkyns on Conveyances. In the case referred to in Johnson’s Chancery Reports, the Chancellor says, the rule has been long and uniformly established that “ to procure relief in equity by a bill brought to assist the execution of a judgment at law, the creditor must show that he has proceeded at law to the extent necessary to give him a complete title.” “ If he seeks aid as to real estate, he must shtiw a judgment creating a lien upon such estate; if he seeks aid in respect to personal estate, he must show an execution giving him a legal preference or lien upon the chattels.” The Chancellor then proceeds to collate authorities, referring to 1 Vern., 399; 1 P. Wms., 445; 3 Atk., 200; 8 East, 467; and 6 Ves., 786; in all of which there had been an execution at law, or, for want of such execution, the bill was dismissed. In the case in Vernon, the bill was for discovery and to reach a surplus in the hands of the defendant, and as no execution had been issued, the bill was dismissed. The case in 3 Atkyns, 200, was a bill by a judg ment creditor to redeem a mortgage of leasehold estate, and it was dismissed because the creditor had not sued out a fi. fa., for it was said “ until then the plaintiff had no lien on the freehold estate.” In the other cases in Atkyns, executions had been issued creating liens upon leasehold property, and the bills were sustained. Seeing that the j udgments in these cases created no liens on the leasehold property, and that the liens were by. virtue of the executions, we have no difficulty in understanding what Chancellor Kent meant by saying, if the judgment creditor seeks aid as to real estate, he must'show a judgment creating a lien upon such estate. It was liens enforceable in equity that he was speaking of, and not a general lien, enforceable at law. This is very clear from the two cases in Atkyns to which he refers. In the one, at page 192, the debtor had mortgaged the leasehold estates after judgment and before execution, and the plaintiff was only allowed to redeem. In the other case, at page 739, the Chancellor said, if the debtor, subsequent to the execution, assigned the leasehold estate, the creditor may proceed at law and sell the term. Of course, he would not require any aid from the Court of Chancery, the lien being legal, as contradistinguished from equitable.

The case referred to in 1 Paige, by Chancellor Walworth, is not authority for the particular remark upon which I am commenting. The case (Clarkson v. De Peyster, supra,) in which the remark is made, is more nearly in point; but it is not authority for the broad position of the Chancellor, which embraces legal liens, whereas, in the case then under consideration, there was no lien upon the real estate, alleged to have been fraudulently mortgaged, until the execution was issued. It was upon a decree in chancery, which did not bind the land, but upon which, by 1 R. L., 1813, page 487, an execution was .authorized against the land of a defendant, and the lien attached when the execution was delivered to the sheriff. This execution was in the hands of the sheriff when the bill was filed. There was another judgment, upon which the bill was also filed, and upon which an execution had been issued and returned unsatisfied.

This case may be authority for the position, that where the proper remedies at law, to collect the judgment from personal property, have been exhausted, and the judgment is a lien upon real estate which has been fraudulently incumbered, to an amount which, if the incumbrances were valid, would prevent the realization, by the judgment creditor, of the amount of his judgment, the judgment creditor may issue his execution, and then bring his action in aid of it, in a court of equity. And he may, perhaps, bring his action, to remove the fraudulent incumbrance, solely with a view to an execution thereafter on which to sell the land, having previously exhausted his remedy at law,' as to the other property of the debtor liable to be seized and sold on execution.

By the statute, every conveyance or assignment of an estate or interest in land made, and every decree or judgment suffered, with intent to hinder, delay or defraud creditors or other persons, are declared void, as to such creditors or other persons ; hence, a creditor, having a judgment, which is a lien upon such land, may sell it upon his execution, or he may have his execution returned unsatisfied, and then go into a court of equity and there litigate the question of fraud, and, if successful, subject the land, in that event, to the payment of his judgment. (Chautauque Co. Bank v. White, 2 Seld., 236.) Or he may, perhaps, issue his execution and then commence his action to obtain a judgment, declaring the conveyance so made, or decree or judgment so suffered, void, as to creditors, and then sell the land upon his execution.

The debtor having made a fraudulent conveyance, or suffered a fraudulent judgment to be taken against him, with intent to defraud his creditor, a court of equity, resorted to in a proper manner, will give the proper relief.

The present, however, is not such a case. The judgments were not suffered with intent to defraud creditors. They were entirely valid as to all the creditors of St. John, and good liens upon his lands, so long as they remained unpaid, and, when paid, the judgments and the liens, as such, ceased to exist. They were of no force or effect against any one, nor were they available for any purpose. The power to sell under them was extinguished by payment. (Swan v. Saddlemire, 8 Wend., 676, and cases there cited.)

As I have said, the action was not for the purpose of collecting the plaintiff’s judgment; and the only judgment given by the Supreme Court is, that the judgments in favor of Dwight, describing them, be forthwith canceled and satisfied of record, and that the plaintiff have judgment against Dwight for $432.63 costs, and allowance of $100 ; in all, $532.63.

It is not an action in aid of an execution, nor would the facts stated justify such action. It is an action by one having a junior judgment, which is a lien upon the lands of the debtor, against one having prior judgments, apparently constituting liens upon the same lands, alleged by the plaintiff to be paid; the sole issue joined and tried being that of payment, and the only relief asked and given being a judgment that such judgments should be canceled and satisfied of record, and for costs.

The case, I think, has no precedent. The learned and diligent counsel for the respondent has referred .us to no case in point, and I have found none. His position is, that the plaintiff, as a junior judgment creditor, was entitled to maintain the suit, to remove a cloud upon the title to the lands of' St. John, which was inequitably kept on foot by Dwight, to the prejudice of the rights of the plaintiff; and he cites several cases, in which it appears that the action was by the party who had or claimed title to the land from which it was sought to remove the cloud. (Kimberly v. Sells, 3 Johns. Ch., 467; Aptkorp v. Comstock, 2 Paige, 482; Pellett v. Shepherd, 5 id., 493; Van Doren v. Mayor of N. Y., 9 id., 388; Cox v. Clift, 2 Cow., 118; Burns v. Morse, 6 Paige, 108.) The last case was a creditor’s bill, filed after the execution was returned unsatisfied, and in which the judgment was attacked, as fraudulent as to the complainant.

It may be well to remark, that there is no allegation in the complaint, and there was no proof on the trial, of any combination or collusion between St. John and Dwight to keep the judgments on foot to hinder, delay or defraud the creditors of St. John, nor is there any allegation of a refusal by St. John to adopt measures to procure a satisfaction of the'judgments upon the records, nor is there any allegation of difficulty in showing the payment of the judgments, or of danger of the loss of evidence to prove such fact.

If.this judgment is sustained, it will be authority for any junior judgment creditor to come into court, and compel a prior judgment creditor to litigate with him the question whether such prior judgment has been paid, and that, too, without claiming, in such action, the collection of his own judgment. Indeed, he may never resort to the land to collect his judgment.

Courts of equity do not entertain jurisdiction -for purposes so idle and unnecessary, and when an ample remedy exists in the court of law in which the judgment is, upon motion by the debtor upon whose land the cloud is.

The counsel for the appellant referred to the ancient action of audiia querela, not as a remedy for the plaintiff in this case, but for St. John, who had the legal title, and for which remedy a motion, in modern times, to be made in the court in which the j udgment is, has been substituted. The cases are numerous in which the defendant in the judgment has moved the court that the judgment be satisfied of record, upon the ground that it had been paid. This remedy, in the same court, is simple and ample, and if the fact of payment be denied, the court may decide the fact on the affidavits, or award an issue; but the usual practice now is, in case the affidavits are so conflicting as to render a decision difficult, to refer such question to a referee," to hear the proofs, and report them and his opinion to the court, which then decides. (Code, § 271, subd. 3; Briggs v. Thompson, 20 Johns., 294; McKinsley v. Thurston, 12 Wend., 222.

No case was referred to, upon the argument, nor have I found any, in which one judgment creditor has moved that the judgment of another creditor,' or apparent creditor, should be satisfied; nor, as I have already said, is there any precedent for such an action as the present. I think the judgment should be reversed, and the' complaint dismissed.

Emott, J., expressed no opinion.

Judgment affirmed.


author: Marvin, J. Denio, Ch. J.,

text:
    McKay, Administratrix, &c., v. Draper.
    The bailee of money deposited with him under a written agreement between A and B that it should be paid over to B upon a third person, 0, expressing his satisfaction with certain documents, cannot defend an action for the deposit by'B, on the ground that 0, who waived the performance of the condition, was the mere agent of another person and had no interest in the matter of the agreement or in the money, and that such waiver was fraudulently made to enable B to obtain money to which he was not entitled.
    The way for the bailee to protect the interest of the real principal is to bring an action of interpleader, or, after an action has been commenced against himself, to apply to have the principal substituted in his place as defendant, under § 122 of the Code.
    Appeal by the defendant from a judgment of the Supreme Court. The action was brought to recover the sum of five hundred dollars alleged to have been deposited with the defendant, by one Hunneville Vincent, to be paid over to the plaintiff’s intestate upon the event, mentioned in the agreement in the following words:
    “This agreement, made the 16th day of August, 1858, between James McKay, of the city of New York, and Hunneville Vincent, of the same place, witnesseth that, in consideration of good and valuable considerations, the said Vincent shall deposit with Simeon Draper the sum of five hundred dollars, to remain in his hands, as trustee for all the parties hereto, and which is to be drawn out of his hands at the end of forty days, when O. L. Baker, the attorney of the respective parties, shall examine the papers in the matters transacted this day, and shall be satisfied that such papers are correct, and as represented by said McKay; and that when said Baker is thus satisfied, he shall sign an order for said McKay to get the money from said Draper. Dated August 16th, 1858.
    “ H. Vincent,
    “James McKay.”
    The complaint alleges, and the fact was proved, that, after the expiration of the forty days, namely, on the 29th September, 1858, Vincent signed an instrument, waiving, in terms, that part of the agreement which required the order of Baker, and consenting and agreeing that Draper should pay over the money to McKay, the intestate, of which the defendant had notice; a,nd that McKay and Vincent afterwards called, together upon the defendant, and requested him to pay the money to McKay, which he declined to do. The answer was a general denial to the complaint.
    On the trial, before a referee, the defence set up seems to have been that Vincent had no personal interest in the subject' of the agreement or in the money which was deposited, but acted therein as the agent of Moody M. Hall or of Anson Blake, and that Blake furnished the money; that the reference to Baker was intended for the protection of the interest of the real parties, and that it was fraudulently waived by Vincent for the purpose of enabling McKay to get the money to which he was not entitled. The defendant also attempted to show that the .interest of Hall or Blake, and the motive of the arrangement, were made known to the defendant when he received the deposit. The agreement appears to have been signed by Blake, under the names Vincent and McKay, but whether it was originally placed there or was subscribed afterwards was a controverted point on the trial; and upon the other questions there was a large amount of contradictory testimony.
    It appeared that McKay was possessed of certain abstracts of title and other papers, making what was called a search, respecting the title to ninety-eight building lots in the Central ■Park in the city of Hew York. Hone of these lots belonged .to any of the parties above named, but it was supposed that the papers showed title in those premises in certain other parties from whom they might be purchased by Hall; and with a view to the advantages to be derivéd from such a purchase, he was desirous of obtaining the papers which McKay had. But Hall was on bad terms with McKay, who, it was assumed, would not deal with him; and it was therefore arranged by Blake, as the friend of Hall, and Baker, who was the counsel of Blake, and Vincent, that the latter should act ás the contracting party in the purchase of the papers from McKay. McKay’s price, for his interest in them, was $1,000; and a further sum of $400 or $500 was claimed by one Fancher, who, it was said, had an interest in them. In pursuance of this agreement, Blake advanced the amount claimed by Fancher, and also $500 which was paid to McKay on account of the $1,000 which he asked. The remaining $500 was deposited with the defendant, under the agreement, in order that the character of the papers should be ascertained before this balance was paid over to McKay, and in order that it might be withheld if they did not appear to be what he had represented them to be; and this was to be determined by an examination to be made by Baker. The papers were handed over to Baker, when the agreement was signed. Baker had never approved of the papers, and the defendant offered to show that they were not what McKay represented them to be, but were defective and worthless for the purpose for which they were wanted; but the evidence was excluded, and the defendant excepted. The money mentioned was advanced by Blake for the benefit of Hall, who gave security for its repayment by way of lien on his expected interest in the lots. The testimony is very incoherently stated in the case, which seems to be a copy of hasty minutes taken on the trial; and some of the matters above stated were controverted by portions of the testimony.
    The finding of the referee stated the existence of the agreement between McKay and Vincent, as above set forth, and that the $500 was deposited with and received by the defendant, with knowledge of and pursuant to such agreement, and that he refused to pay it to McKay, when, after the expiration of the forty days, he was shown .the paper signed by Vincent, waiving the agency of Baker, and when it was demanded of him. As to the signature of Blake to the instrument, the finding said that he appeared to have signed it under the signatures of Vincent and McKay, but that the weight of evidence seemed to show that his name was placed there after these persons had signed it; but the referee said he preferred to place his decision, as to the effect of Blake’s signature, upon the ground that he was not a party to the agreement, and that his signature did not make him a party to it or interested in it. He found that the money, which was paid and deposited, was furnished to Vincent by Blake, and that the latter was present when the agreement was executed.' The finding further stated that the referee rejected a large amount of testimony offered by the defendant, to show the incorrectness of the papers referred to in the agreement, because the defendant had not sought to interplead, under section 122 of the Code, and because the pleadings do not set out any interest of Blake in the deposit or in the transaction referred to, and that he had not deemed it important to determine whether Vincent was acting as the agent of another party, or not, or whether the plaintiff knew it, because it appeared on the face of the agreement that Vincent was a principal. After stating that Vincent did not obtain the money from Blake unlawfully, the finding, as to the facts, concludes: “Under these circumstances, no connection being alleged or shown betweeen the defendant, the bailee of the money, and Mr: Blake, I am clearly of the opinion that the defendant would not only have been justified in paying over the money as Vincent directed, but was, moreover, bound to do so.” As matter of law, he found that Blake was not a party to the agreement, or interested in the transaction ; that Vincent was authorized to waive the agency of Baker, and that the plaintiff was entitled to recover the amount with interest. Ho exception was taken to the decision of the referee. McKay, who was the original plaintiff, died during the pendency of the appeal to the Supreme Court at general term, and his administratrix was substituted. The judgment on the report having been affirmed at the general term, this appeal was brought by the defendant.

      Samuel G. Glassey, for the appellant.

      J. H. Reynolds, for the respondent.
   Marvin, J.

There is no exception to the findings or decisions of the referee; but there are numerous exceptions to the rejection-of evidence offered to show the consideration of the agreement between the-plaintiff and Vincent: that Vincent .was a mere agent of Blake, or Blake and Hall: that the money belonged to Blake: that Vincent acted in fraud of Blake’s rights in giving the order for the money; and that the plain: tiff cooperated in such fraud, without connecting Draper with these' facts. Such offered evidence was properly excluded. There was no privity between the defendant and Blake, or any persons other than McKay and Vincent, and the defendant could not set up title in any other person in defence so long as he retained the "money, or make himself a party to controversies between his bailors and third persons. It is a general rule that an agent cannot defend against the action of his principal by setting up the title of others, so long as he retains the property. If he chooses to take the responsibility of delivering the property to a third person who claims it, and such person has a legal right to the property, he may do so, and show this in defence. (1 Pars. Cont., 677, et seq., and cases cited in the notes.)

In a proper cáse, an action of interpleader can be maintained. And the Code' has provided a more simple remedy, by which the defendant in this case, after the action was commenced, and before answer, could have applied to the court for an order to substitute Blake in his place, and discharge him from liability on depositing in court the money. The court, in its discretion, can make such order. (Code, § 122.)

There is another answer to this appeal. There was no issue made by the pleadings under which the defendant was entitled to make the defence claimed to be valid. The judgment must be affirmed.

Davies, Wright, Selden, Emott and Balcom, Js., concurred.

Denio, Ch. J.,

(dissenting.) If the money which was deposited with the defendant to be paid, conditionally, to McKay, the plaintiff’s intestate, was the money of Vincent, who deposited it, it was, of course, competent for him to waive the condition ; and having waived it, it was the defendant’s duty to pay it to McKay. If it was really the money of Vincent, he was alone interested in the question which was referred to the determination of Baker; and it was not for the defendant to object that he chose to dispense with an agency which was provided for his own security. But if it was the money of Hall or of Blake, and they, or the one whose money it was, in connection with Vincent, agreed that Vincent should represent the owner of the money in making the deposit, then it was a fraud in Vincent to attempt to waive the condition on which it was to be paid to McKay, and the depositary could not properly pay it to him, unless the fact, if it was a fact, that McKay was ignorant of the interest of Hall or Blake, and treated with Vincent in making the contract as the real principal, and. believed him to be such, would make a difference. If we suppose the case to have been that Blake, who really advanced the money, and who was to have a lien upon the property supposed to be in some manner represented by the documents, employed Vincent to enter into the agreement with McKay, the latter not being aware of the interest of Blake, and that Vincent fraudulently dispensed with the examination of the papers which was to have been made by Blake in order to enable McKay to receive the money, the question arises whether the interest of Blake can now be set up by the defendant to avoid its payment pursuant to Vincent’s consent and direction. This is the case which the evidence tends in some degree to prove; and it is essential to the disposition of the .appeal and the ultimate decision of the action that the law upon such a state of facts should be determined.

If an agent make a contract with another without disclosing his agency, the party so dealing with the agent will be projected in any advances he may make to him, and generally in anything he may do pursuant to the contract, until he is made acquainted with the interest of the principal But the real party in interest is not wholly precluded from asserting that interest: he may generally have the same remedies upon the agreement as though it had been made in his name, where he asserts his rights before the other party has committed himself by some dealing with the agent which cannot be retracted without injury to him. This doctrine was applied many years ago to a case very similar to the present. The defendant, the owner of an estate which he desired to sell, caused it to be advertised for sale, the notice stating that it was situated about one mile from Horsham. One Harting, an- agent of the Duke of Norfolk, entered into a written agreement in his own name, as principal, with the defendant’s agent for the purchase of the property, which was to be conveyed to Harting on or before a day mentioned. Harting made a deposit with the defendant of 300 guineas; and it was not until after all this was done that he stated to the defendant’s agent that he had made the purchase for the plaintiff, the Duke of Norfolk. It turned out that the premises were three or four miles, instead of one mile, from Horsham; which circumstance seems to have materially affected its value. The action was by the Duke, to recover the deposit. The defendant’s counsel objected that it ought to have been brought in the name of Harting, who alone appeared as the purchaser and ought to be considered as the principal. Lord Ellenborough, before whom the case was tried, said that the question was, whose money was paid as a 'deposit. If it was the money of a principal, paid through the medium of an agent, it may be recovered back by the principal, upon the contract upon which it was paid being rescinded. He therefore thought the action rightly brought in the name of the present plaintiff. The plaintiff obtained a verdict. A new trial was moved for, but the court refused á rule to show cause, holding the direction right. (Duke of Norfolk v. Worthy, 1 Campb., 337.) The case is referred to with approbation by the former Supreme Court in this State, in Vischer v. Yates (11 Johns., 23), the opinion being delivered by the then Chief Justice, Kent ; and that case itself is another application of the principle referred to. The plaintiff put §500 into the hands of an agent to bet for him upon the then approaching election for Governor. Such a wager was accordingly made with a third person, and the money thus intrusted to the agent, with an equal amount furnished by the other party to the wager, was put into the hands of the defendant to be paid to the party whom the event should determine to be the winner, and the defendant signed a writing to that effect. The agent did not disclose the name of his principal, though he said he was acting for others. The election resulted against the candidate in whose favor the plaintiff’s money was staked; and after the election returns were received he claimed that the bet was illegal: caused notice to be given to the defendant that the money belonged to him: demanded it, and brought the action to recover it. It was objected on the trial that the agent could alone maintain the action; but the plaintiff had a verdict. The court held the bet to be unlawful and void. As to the objection that the contract was with the agent, they said that the case of The Dulce of Norfolk v. Worthy was in point, and that the principle contained in it appeared to be solid: and judgment was given upon the verdict. The doctrine is not limited to cases where the action of the principal proceeds upon a disaffirmance of the contract. The principal may equally sue upon the contract itself, as is often done where it was made by a factor for an undisclosed principal. The agent himself has a qualified right to sue on such a contract, but the principal will still have the power of superseding the factor’s right by suing in his own name, or by taking any other proceedings whereby it becomes manifest that he intends to consider- the other contracting party as his debtor. Thus, if a factor sells goods in his own name, without disclosing his principal, and, before he has sued the vendee for the price, the latter takes steps for recovering the debt directly from the vendee, such debt will then be considered to be due to the principal, in the same manner as if the sale had been made personally by him in the first instance; and after the intervention of the principal, the factor will cease to have any right to sue. (Russell on Factors, 245; Story on Agency, § 161.) Our own books furnish several cases where the doctrine has been applied. Thus, in Beebee v. Robert (12 Wend., 413), an agent had purchased cotton without disclosing the name of his principal, and it was held that the latter could maintain an action on a warranty of quality embraced in the contract. In Spencer v. Field (10 id., 88), the principle was conceded by the court, but it was held not to apply where the contract of the agent was under seal. In Hogan v. Shorb (24 id., 458), it was held that although the principal could sustain an action for goods sold by his factor in his own name, yet that the defendant was not thereby deprived of his right to set off a debt against the factor existing before the purchase. The rule has been constantly followed in the modern English cases. A proctor was allowed to recover for business done for the defendant by his clerk, although the defendant apprehended that the clerk was the principal, he acting as the principal and never disclosing the name of his employer, no prejudice having arisen to the defendant from the concealment. (Grojan v. Wade, 2 Starkie, 443.) In Skinner v. Stocks (4 Barn. & Ald., 437), where a quantity of oil was sold by one of several part owners, the purchaser not knowing that any other person was interested, the action, to recover for not accepting and paying for the property, was sustained in the name of all the owners, the court saying thát it might -be maintained either in the name of the person with whom the contract was actually made, or in the name of the parties really interested. In Humphrey v. Lucas (2 Carr. & K, 152), it was decided that if a broker enter into a contract for an undisclosed principal, the latter may sue on such contract in his own name, notwithstanding a rule of the Exchange to the effect that a contract made by a broker for an undisclosed principal shall be regarded as the contract of the’broker only. Humble v. Hunter was an action on a charter-party, signed by the son of the plaintiff, in which he described himself as “owner of the good ship or vessel called ‘ The Ann.’ ” The court, fully admitting the general rule as I have stated it, held that it did not apply to such a case; Lord Denman, Ch. J., saying that the defendant had a right to the benefit he contemplated from the character, credit and substance of the party with whom he contracted. (12 Adolph. & E., 310.) Whatever may be thought of the weight of the distinction, the principle is clearly recognized. See, also, Clay v. Southern (14 E. L. & Eq, 533), and Londesborough, v. Mowatt (28 id., 119).

If Blake (supposing him to have been the principal in this transaction,) had sued the defendant on this deposit, and had shown that Baker, the referee, had decided against the documents in the terms of the submission, it could not, according to the principle established by these authorities, have been .objected that he was not the proper party to bring the action, and he would undoubtedly have been entitled to recover the money.

It was one of the terms of the' contract which Vincent entered into with McKay, that the papers which were purchased should be submitted to the examination of Baker, and should be approved by him before the balance of the purchase price should be paid. Assuming that Vincent was in fact the agent of Blake, this provision was for the benefit and protection of the latter. In cases falling within the rule which has been referred to, where the principal of the agent who made the contract—the actual party in interest on that side—appears and asserts his interest, the power of the agent is at an end. The other party can no longer deal with him upon the footing of a principal, except in the execution of some provision of the agreement which was to be made to him personally. What was attempted here was to change its terms so as to deprive the principal of an important safeguard contained in the contract itself. It was fraudulent for Vincent to do this, and McKay can claim no advantage from it. He is entitled to the complete execution of the agreement according to its terms and spirit; but if he would obtain the balance of the consideration, contrary to the agreement, and by a waiver of one of its provisions, he needs, and must have, the assent of the party in interest whom Vincent represented, and whose money must be employed to pay that balance.

It appears, from some of the objections to the testimony, and from the referee’s finding, that it was supposed to be necessary for the defendant to answer specially, setting up the evidence upon which his defence rests. His answer is a general denial of the case made by the complaint But the material allegation of the complaint is, in substance, that Vincent’s money was in the hands of the defendant, and that Vincent, being such owner of the money, had waived the condition upon which it was to be paid to McKay. Proof that Vincent was only a nominal party; that the money was not his, but belonged to his employers; is a virtual contradiction of the plaintiff’s case, and comes fairly within the denial of the answer. The defence set up was not by way of confession and avoidance, such as payment, an award, or the like, but was a denial that the plaintiff ever had a cause of action against the defendant. (Brazill v. Isham, 2 Kern., 9; McKyring v. Bull, 16 N. Y., 297.)

There was no exception to the referee’s report, and the appellant must consequently rely upon the exceptions taken in the course.of the trial.

It follows, from what has been said, that it was competent for the defendant to prove that Vincent was merely an agent in making the contract concerning the documents, and that the parties really interested were Blake and Hall, .or one of them, and that the money was not Vincent’s money, but theirs. If the defendant was fairly permitted to make that proof on the trial, there is no error in the judgment of which he can now complain, though we should think that the question of fact was incorrectly decided. In the early part of the trial, the following questions were put by the defendant’s counsel to McKay, when under examination as a witness in his own behalf: “ From whom did you have a promise, or with whom did you negotiate, that you should receive the $1,000 you speak of?” This related to the money to be paid for the documents. “ When you negotiated with Vincent, at any time did you expect that you was to receive directly any money from him?” “Was not the agreement of yourself, Vincent, Blake and Baker, at the time, that that money should be paid to Mr. Blake, if the papers were not as represented by you?” “Why was it that an order was to be obtained from Mr. Baker before Draper could pay over this money ?” “ Did you not know that this money deposited with Mr. Draper was Mr. Blake’s at the time it was deposited ?” “ Did not Mr. Baker and Mr. Blake plainly tell you, at the time, that they would not pay it to you; that it should be deposited, and if everything turned out as it was represented, they would give you this additional $500 ?” When it is borne in mind that all the parties, McKay, Vincent, Blake and Baker, were present when the agreement for the deposit was signed and the $500 was paid, and the remaining $500 was handed by Blake to Baker to be deposited with the defendant, it will be apparent that the inquiries were pertinent to show the relation between Blake and Vincent, in respect to the transaction, to be that of principal and agent. Yet the questions were severally excluded by the referee, on the plaintiff’s objection, and there was an exception in each instance. The answer made on the argument to the allegation of error in these rulings was that the parties were subsequently allowed to go fully into the matters thus ruled out, and that the error was thereby cured. If this were so, I think the error could not now be complained of. The circumstances were these: McKay and Baker were after-wards severally examined, not before the referee, but out of court, and their depositions brought forward at an adjourned day. The case states that this written testimony of Baker was received subject to all legal objections, and that of McKay was stipulated to be read with the same effect as if the witness had been present, subject, however, to all proper objections. The referee having excluded testimony calculated to show that Vincent acted as the agent of Blake, it is to be presumed, in the absence of any evidence of a change of views on his part, that he only considered and acted upon such portions of the written testimony as were not obnoxious to the objections which he had thus allowed. The fact, therefore, that the excluded topics were treated of in this written testimony will not avoid the exceptions which had been taken, since it seems plain that the defendant never had the benefit of the testimony upon these points. This view is made quite clear upon reference to that part of the finding of the referee in which he says: “I have not deemed it important to determine the question, arising on the trial, whether Vincent, in this transaction, was acting as the agent of another party or not, or whether the plaintiff knew this; for Vincent, upon the face of the written agreement made August 16th, executed in Mr. Blake’s presence, appears to be one of the principals.” If the referee thought that the question whether Vincent acted for himself or as an agent was immaterial, or incompetent to be proved by the defendant, he certainly did not give any heed to the testi mony upon that point which was brought before him under a stipulation or ruling that he was to receive only such parts as he considered competent. The finding, though not excepted to, may be properly resorted to for the purpose of explaining what might otherwise appear to be equivocal in the case. It shows in this case that all the testimony on the subject of Vincent’s agency was thrown out, as immaterial to the merits of the case.

I am, therefore, of opinion that the exceptions to which I have referred were well taken; that the judgment should, on that account, be reversed, and that a new trial should be ordered.

Rosekrams, J., expressed no opinion..

Judgment affirmed.