text:
    William C. Barker, App’lt, v. Antoinette Gillett, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1887.)

    1. Married women-Separate estate—Adoption of acts of husband— What does not amount to.
    Where a note was given for a loan of money, and the note was made by the husband of defendant, who, when he applied for the loan, represented to the plaintiff that his wife wanted to borrow the money to use in payment'on a mortgage upon her farm, and that she would sign the note. The money was advanced to the husband, who signed the note at its date, and the plaintiff presented the note two months afterwards to the defendant, and she then signed it. The referee found that the note was not made by the defendant on account of or for the benefit of her estate) and refused to find that the loan for which it was given was made by her authority. There was > evidence showing that she gave her husband no authority to borrow the money, that she had none of the money and had no knowledge of it until she signed the note. Ihld, that the signing by her of the note was not in legal effect the adoption of the representations, of which she had no knowledge, made by her husband at the time he made the loan.
    2. Same—What would amount to an adoption.
    Had thj defendant been advised by the plaintiff when he presented the note to her for execution that it had been represented to him when it was made that the loan was by her direction and for her, she may have been charged by an acquiescent execution of the note. If the money was in fact treated as hers, and used for the benefit of her estate as such, her 'liability upon the note would be supported.
    3. Same.
    The defendant, being a married woman, is not charged with liability by the mere act of signing the note in question. The burden was with the •plaintiff to establish by evidence the requisite state of facts to charge her.
    4. Same—Evidence.
    Evidence examined and commented on and held not to be sufficient to "charge her.
    Appeal from judgment entered on report of referee. The action was brought against the defendant individually, and as administratrix, etc., of Nelson Gillett, deceased, upon a promissory note of date March 30, 1883, for $175, made by her intestate and herself, and payable to the plaintiff at six months, with interest.

      The defendant, as such administratrix, did not appear in the action, but individually did, and answered: At the time the note was made she was the wife of Nelson Gillett, who died in June following. The note was given for a loan of money, made by Nelson Gillett at the time of its date. When he applied for the loan he represented to the plaintiff that his wife wanted to borrow the money to use in payment on a mortgage upon her farm, and that she would sign the note.
    The money was advanced to the husband, who signed the note at its date, and the plaintiff, on the 30th day of May following, presented the note to the defendant, and she then signed it.
    The referee found that the note was not made by the defendant on account of or for the benefit of her estate, and refused to find that the loan for which it was given was made by her authority, and directed judgment of dismissal of the complaint on the merits.

      Geo. Bullard, for app’lt; Edmund L. Pitts, for resp’t.
   Bradley, J.

The defendant being a married woman was not charged with liability by the mere act of signing the note in question. The burden was with the plaintiff to establish by evidence the requisite state of facts to charge her.

This he endeavored to do by showing that she was the owner of a farm which she, with the assistance of her husband, was operating; that he transacted for her from time to time some business; that there were two mortgages executed by her upon her farm; and that at the time the loan was made, and the note made by the husband, he represented to the plaintiff that the defendant wanted to borrow the money to make payment upon such mortgages. And he gave evidence tending to prove that the money was obtained and used for such purpose; but was fully contradicted by the evidence on the part of the defense, which was to the effect that the defendant gave her husband no authority to borrow this money on her account, and that in fact no part of it was used for her benefit, that she had no knowledge until she signed the note, two months after its date and execution by her husband, that the loan and note had been made by him; that he let her have no part of-the money. In these respects, the evidence presented questions of fact which must be deemed disposed of by the referee, and upon which his findings are fairly supported by the evidence.

The signing by her of -the note was not in legal effect the adoption of the representations, of which she had no knowledge, made by Mr. Gillett at the time he made the loan. Nor was there sufficient in the course of dealing and transactions between them, and by the husband for her preceding this one, to require the conclusion that he was then acting for her, or to permit the plaintiff effectually to treat the loan as made for her, or by her direction or authority.

While there was no want of power to charge herself for loans made by her, and upon dealings which she might have with others as effectually as if she had been a feme sole, and she might have done it through the agency of another, the act must appear to have been hers, or by her authority, to be effectual to charge her credit with the consequences.

And without reference to the authority with which the husband did the act of making the loan, if the defendant had been advised by the plaintiff when he presented the note to her for execution, that it had been represented to him, when it was made, that the loan was by her direction, and for her, she may have been charged by an acquiescent execution of the note; but such fact is not established or found. And if the money was in fact treated as hers, and used for the benefit of her estate as such, her liability upon the note would be supported. Krumm v. Beach, 25 Hun, 293; affirmed, 96 N. Y., 398.

The referee has found that the defendant received no benefit from this loan. It seems that there was a mortgage of $2,000, made by her and her husband, upon her land in 1880; that $700 of the amount was a loan for his benefit, and the residue, $1,300, for hers ; and that as between them he undertook to pay the $700 so secured, with interest. On the 9th of April, 1883, $470 was paid on this mortgage, and $120 of it endorsed as one year’s interest due about that time. The evidence on the part of the defense is that the defendant furnished $428 and her husband $42 of the amount so paid, that the money she so furnished embraced no part of that loaned of the plaintiff. In the view taken by the referee, the force of the evidence and the inference claimed for it on the part of the plaintiff, that the money loaned of him went into the sum so paid, was overcome by evidence of the defense, and this view seems well supported by it. It is also contended that the minor sum of $42 so furnished by the husband should be treated as a product of the loan, and the use made of it as for her benefit, because it went to reduce the amount then due of the mortgage on her property. But assuming that $700 of the amount so secured was his debt, and to that extent the mortgage was made for his accommodation, it is difficult to see how it can be treated as a payment made for her benefit in such sense as to charge her with liability. It is true the mortgage was a charge on her property to the full amount secured by it, and she would be chargeable to another for money advanced at her request to make payment of any part, or the whole of it, but it was not simply for that reason within the power of the husband to charge her with liability for money borrowed by him to pay the amount of his debt so secured, although he made it for the represented purpose of relieving her premises from the encumbrance and actually applied it upon the mortgage in discharge of the portion he had so undertaken to pay.

The question of liability is not subservient to appearances of that character under such circumstances. In that view the defendant was not the recipient of the fruits of the loan to the extent of the forty-two dollars, even if it be assumed that it was paid by Mr. G-illett from the moneys so borrowed by him of the plaintiff. That sum was equal to the amount of one year’s interest on the $700.

While the evidence on the part of the plaintiff permitted the conclusion of a state of facts in support of a recovery by him, that on the part of both parties as a whole, presented a question of fact arising out of the conflict of the evidence for the consideration and determination of the referee. And his conclusion is not so against the weight of the evidence as to justify the direction of a new trial on this review.

We have carefully examined all the exceptions taken to the exclusion and admission of evidence, and to the refusals to find as requested, and to the findings as made, and think that no error was committed to the prejudice of the plaintiff.

The judgment should be affirmed.

Haight and Childs, JJ., concur.


source: Caselaw Access Project

author: Bradley, J.

license: Public Domain

text:
    George F. Rogers, Resp’t, v. James W. Rogers, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1887.)

    1. Animals—Owners, liability for injuries—Scienter—What sufficient proof OF.
    In an action for damages on account of injuries inflicted on the plaintiff by a bull belonging to the defendant: Reid, that the requisite scienter does not necessarily depend upon knowledge of the owner of an animal liable to be vicious, that it has actually made an attack and inflicted an injury upon a person. It is sufficient that he is advised that he is ferocious and ugly, and that there is reasonable ground to apprehend that it will do such an injury if permitted.
    2. Duty to restrain—Negligence when presumed.
    The duty to restrain a vicious animal is imperative, and the want of actual negligence on the owner’s part d :es not relieve him from the consequences of failure to make the restraint effectual. Negligence in such a case is conclusively the legal presumption.

      3. Same—Contributory negligence—When a defense.
    When, with knowledge of the danger, a person voluntarily and unnecessarily provokes the attack upon him of a vicious animal, he is guilty of contributory negligence, but every failure to use care is not. negligence, and the rule of contributory negligence, in the sense in which tnat term is ordinarily applied, does not govern in suc.i cases.
    4. Same—Evidence of former vicious habits of animal admissable.
    Evidence of the vicious habits and conduct of the bull prior to the purchase of it by the defendant was admissable. But any specific demonstration of its ferocious disposition not brought to defendant’s knowledge would not tend to show scienter.

    Appeal by the defendant from judgment entered on report of referee.
    The action is to recover for personal injuries alleged to have been suffered by the plaintiff from an attack made upon him by the defendant’s bull.
    The referee directed judgment for the plaintiff.

      Daggett & Norton, for app’lt; E. C. Olney, for resp’t.
   Bradley, J.

The defendant was the owner of a Jersey bull which he had purchased in the spring of 1884, and in June following the bull entered upon the plaintiff’s premises, and there the attack was made upon the plaintiff which caused the injury in question. The farms of the parties joined. The place where the bull entered from the defendant’s on to the plaintiff’s premises was the portion of the line fence which the latter had undertaken to keep in repair ; and the referee found that it was in a defective condition and that the plaintiff could not rest his right of action, and to recover, upon the ground that the animal was trespassing on his premises.

The first inquiry, therefore, is whether the bull was ugly or vicious, and if so, whether the defendant was chargeable with knowledge or apprehension of his character in that respect.

The evidence tends to prove that the animal was ugly, and had made an attack upon its owner before the defendant purchased it, and that at the time of his purchase the defendant was informed that' he had been kept tied up for two years. The bull then had in his nose a ring,, to which was buckled one end of a stick, by which he was led at the time of his delivery to the defendant on his purchase. And the evidence of the former owner is that he then advised the defendant to never lead the bull out without the use of the stick fastened to the ring in his nose “for your own sake and everybody else’s.” And on his way home with the bull his attention was called to the danger of injury to persons which might be done by the animal; but it does not appear that this person had any knowledge of the habits or disposition of this one.

The defendant kept the bull tied in his bam until warm weather and grass came, then he tied him to a stake on his premises with a chain and rope together nearly thirty feet in length. On the occasion in question the bull had pulled out the stake, and dragging it and the rope and chain, he jumped over the fence on the plaintiff’s premises, and the latter caught hold of the dragging chain for the purpose of hitching it to something and thus to coniine the animal. The bull then turned upon the plaintiff, threw him down and did the injury complained of.

The evidence was somewhat conflicting as to the information given to the defendant at the time of the purchase by and delivery to him of the bull, but the conclusion that the bull was ugly and ferocious, and that the defendant was chargeable with knowledge, was justified.

The requisite scienter does not necessarily depend upon knowledge of the owner of an animal liable to be vicious, that it has actually made an attack and inflicted an injury upon a person. It is sufficient that he is advised that it is ferocious and ugly, and that there is reasonable ground to apprehend that it will do such an injury if permitted. Rider v. White, 65 N. Y., 54; Muller v. McKesson, 73 id., 195; McCaskill v. Elliott, 5 Strob., 196; 53 Am. Dec., 706.

The precautionary advice to the defendant which the referee has found was given, notwithstanding the contradiction of the evidence in that respect, tended to inform him of the necessity or propriety of confining the bull for the protection of himself and others.

In view of the liability of such animals to be or become ferocious, and at times attack persons, and of the information and suggestions received by him, the defendant was fairly required to keep this bull in a suitable condition of restraint for the protection of persons against liability to injury from it. This he sought to do by first confining the animal in his barn, and, later, within reasonable bounds by means of a chain and rope attached to a stake driven in the ground. The duty to restrain him was imperative, and the want of actual negligence on his part did not relieve him from the consequences of failure to make the restraint effectual. Negligence in such case is conclusively the legal presumption. Muller v. McKesson, 73 N. Y., 195; Lynch v. McNally, id., 347.

It is, however, contended by the learned counsel for the defendant that the injury was brought upon the plaintiff by his own act in interrupting the progress of the bull, without which he would not have been injured. There may be cases where this defense would be available, and such would be the rule to be applied, when, with knowledge of the danger, a person should voluntarily and unnecessarily provoke the attack upon him of a vicious animal. But every failure to use care is not negligence, nor does the rule of contributory negligence, in the sense which that term is ordinarily applied, govern in such cases. Muller v. McKesson, Lynch v. McNally, supra.

The bull was at large in the plaintiff’s orchard, and headed towards the defendant’s premises, at the time the Elaintiff picked up the chain and stopped its progress. If e had not done this it may be assumed that the attack and injury would not have been had. And yet, under the circumstances, the conclusion was not necessarily required that the act of the plaintiff in attempting to stop and restrain the animal was wh oily’ without excuse or reason on his part.

It may be that while he did not apprehend personal injury from the act of stopping it, he may have deemed it a proper matter of- precaution to reheve his children (of whom he had several) from danger of injury in the event that it should continue at large near his house.

He was about going away from home to work, and his wife had requested him to secure the bull. And he says his purpose in the act which he did, was to do so by tying it to the fence, where he could not harm his children. In that view this was not a wanton act of the plaintiff, without any apprehended occasion for the act which he sought to do, but in it was a motive which may be deemed to have been justified by the circumstances which may have led him to attempt that which resulted as it did in his injury.

And it does not, in view of the supported findings of the referee, come • within the rule of defense in such cases declared in Muller v. McKesson.

The case cited of Barlow v. McDonald (39 Hun, 407) does not necessarily have any application to this question. The animal in question there was voluntarily taken into the possession of the plaintiff for use, who had the control of it for the time being, and the defendant was not then chargeable with any duty in respect to its control, or with the result of negligence of the plaintiff in not taking proper care of it while it so remained under the control and management so taken of it by the plaintiff. This case would have been somewhat different if the plaintiff had hired the bull and taken possession of it, and by want of his care the injury had been suffered.

The motion for nonsuit was properly denied. The refusal to strike out the evidence of the vicious habits and conduct of the bull prior to the purchase of it by the defendant was not error. The character of the animal in that respect was one of the essential tacts in support of the action. And any specific demonstrations of its ferocious disposition not brought to his knowledge would not tend to show scienter, and would not without the latter, charge him; yet, as it was one of the facts material to the cause of action, it was properly put into the case and properly permitted to remain there, although it could become effectual or entitled to consideration for any purpose only in the event of sufficient proof to support the other fact requisite to a recovery.

If these views are correct, none of the exceptions to the conclusions of the referee were well taken. And the judgment should be affirmed.

Haight and Childs, JJ., concur.


author: Barker, J.

text:
    Mary Beers, Appl’t, v. George Walhizer and Mary Walhizer, Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1887 )
    1 Civil damage act—Laws 1873, chap. 646—Creme—Regarded as cause op imprisonment.
    It is provided by Laws 1873, chapter 646, that every wife * * * who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication of any person, shall have a right of action * * * against any person who shall by selling or giving away intoxicating liquors which cause the intoxication, in whole or in part. In her complaint plaintiff alleged that J. B. was her husband, and that on the day named therein they lived and cohabiied together, and that prior thereto and at that time he provided for her su port and maintenance; that defendant G. W. sold her husband intoxicating liquors, which he drank and caused him to become intox cote 1, and that while so intoxicated and in consequence thereof he shot and killed one B. That her said husband was immediately thereafter ar.ested for the said offense, tried and convicted and sentenced to confinement in a state prison for a period of his natural life, and is now confined by virtue of such sentence. In concluding, she alleges that by reason of his trial and imprisonment, which were the result and consequence of said intoxication, plaintiff was deprived of the support and maintenance furnished her by her said husband, and was thereby injured in her support and means of support, etc. At the circuit the complaint was upon defendant’s motion dismissed for the reason that it did not state a cause of action, as the conviction of plaintiff’s husband and not his intoxication was the c use of hi< imprisonment. Held error, that the conviction of J. B. was not the cause of his imprisonment, but was the result of the crime which he perpetrated in killing B., and that that act was the direct and only cause in the eye of the law for his incarceration.
    3. Same—Elements of cause of action—What must be proved.

      Held, that under the act it was necessary in order to perfect a cause of action to prove, beside the sale or gift of the liquor by the defendant, intoxication resulting in whole or in'part 'rom its use, and as a consequence of such intoxication, loss of the means of support by plaintiff; that, further than this, nothing was required by the statute.
    8. Same—Intoxication mat be the direct or remote cause of loss of support.

      Held, that the statute made no distinction whether the loss of the means of support was the diiect or remote result of the intoxication.

      Appeal from a judgment entered upon an order made at the Cattaraugus circuit dismissing the plaintiff’s complaint. After the jury were empanelled the defendant moved that the complaint be dismissed, for the reason that it did not state a cause of action and the same was granted. Judgment being entered thereon the plaintiff appeals. -

      Albert Spring, for app’lt; J. Arthur Corbin, for resp’ts.
   Barker, J.

In the act entitled “An act to suppress intemperance, pauperism and crime,” chapter 646 of the Laws of 1873, it is provided that. “Every wife * * * who shall be injured in person, or property, or means of support, by any intoxicated person, or in consequence of the intoxication of any person, shall have a right of action * * * against any person who shall by selling or giving away intoxicating liquors, cause the intoxication, in whole or in part.” The plaintiff alleges in her complaint that James Beers is her husband, and that on the day named therein they lived and cohabited together, and that prior thereto, and at that time, he provided for her support and maintenance; that the defendant George sold her husband intoxicating liquors, which he drank and caused him to become intoxicated, and that while so intoxicated and in consequence thereof he shot and killed one Banfield.

The complaint further alleges that her said husband was immediately thereafter arrested. for the said offense, tried and convicted and sentenced to confinement in a state prison for the period of his natural life, and is now confined by virtue of such sentence, and concludes the statement of her cause of action with an averment, viz.: “That by reason of his trial and imprisonment, which were the result and consequence of said intoxication, the plaintiff was deprived of the support and maintenance furnished her by her said husband, and was thereby injured in her support and means of support in a large sum, to wit, $5,000, "and as the plaintiff verily believes such deprivation will be a lasting and perpetual injury to her, the said plaintiff.”

The only argument presented by the defendant in support of the ruling at the circuit is, upon the facts as stated in the complaint, it does not appear that the loss of means of support sustained by the plaintiff was the direct result of the intoxication; that the arrest, trial and conviction of-the plaintiff’s husband by the officers of the law, and which resulted in his imprisonment, was the cause that produced that result, and was wholly independent of the intoxication produced by the liquor sold by the defendant George, and for that reason no cause of action was alleged against him within the provisions of the said act.

The homicide committed by Beers was a crime punishable by imprisonment, and his arrest, conviction ana sentence was a result to be anticipated, and as a matter of course, by the force and operation of the law of the land. The conviction of Beers was not the cause of his imprisonment, but was the result of the crime which he perpetrated in killing Banfleld, and that act was the direct and only cause in the eye of the law for his incarceration. Under the act it is necessary that two facts should concur besides the sale or gift of the liquor by the defendant to constitute a cause of action, to wit: intoxication resulting from its use in whole or in part, and the loss of the means of support by the plaintiff in consequence of such intoxication. The statute requires nothing more. The act itself establishes a rule of evidence applicable to and controlling in all cases arising under its provisions, which in some respects is new and has produced a radical change of the common law rule. The statute makes no distinction whether the loss of the means of support is the direct or remote result of the intoxication. It only requires that it should be established that the loss of the means of support is the result of such intoxication. The decisions are all in one direction on this subject, and the meaning and effect of the statute in this respect is settled by the frequent interpretation which has been placed upon its provisions. In Bertholf v. O’Reilly (74 N. Y., 509) Andrews, J., in delivering the opinion of the court, said: “The legislature may change the rule of the common law, which looks only to the proximate cause of the mischief, in attaching the legal responsibility, and allow a recovery to be had against those whose acts contributed, although remotely, to produce it. This is what the legislature has done in the act of 1873.” In Volans v. Owen (74 N. Y., 529) the same learned judge remarked, that both direct and consequential injuries are plainly included in the remedy given, and the legislature, by giving a right of action for injury to means of support, a cause of action unknown to the common law was created. In Mead v. Stratton (87 N. Y., 493), it was held that .the statute provides for a recovery by action for injuries to person or property, or means of support, without any restriction whatever, and that both direct and consequential injuries were included. That it is evident that the legislature intended to go, in such a case, far beyond anything known to the common law and to provide a remedy for injuries occasioned by one who was instrumental in the producing or who caused such intoxication. In the recent case of Neu v. Meckechnie (95 N. Y., 632) a like interpretation was given to the statute and applied to the case then under consideration.

The plaintiff averred, and we must assume was prepared to prove, that she was dependent upon her husband as the means of her own support. Of this she was deprived by his act in killing Bantield while intoxicated as plainly and certainly as if he had received while in a state of intoxication and in consequence thereof personal injuries which deprived lñm of the ability to labor.

If a good cause of action was stated against the defendant George, then it is admitted that a perfect cause of action was alleged against the other defendant, who was the owner and lessor of the premises where the liquor was sold.

Judgment reversed; new trial granted, with costs to abide the event.

Smith, P. J., and Bradley, J., concur. Haight, J., did not sit.


author: Haight, J.

text:
    Crooked Lake Navigation Company, Resp’t, v. Keuka Navigation Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 25, 1887.)

    1. Will—Construction—Power to sell does not include power to lease.
    The residuary clause < f a certain will devised and bequeathed all the rest and residue of his estate, both real and personal, not before devised or bequeathed, unto his heirs at law, to he equally divided between them, and then provided and directed that in case Ms heirs could not agree on a division of the property that Ms executors, within a reasonable time after his decease, should sell and dispose of the same for the best price they could obtain, and divide the proceeds among his heirs at law. Held, that the executors were only given power to sell, and that no title vested in them. That they had no power to lease. That where the will provided that the power should be exercised by a majority of the executors, and two being alive, one had no power to act alone.
    2. Navigable streams—Riparian rights op owners oe land adjoining FRESH WATER LAKES—PUBLIC EASEMENT FOR PURPOSE OF NAVIGATION.
    Riparian owners of lands adjoining fresh water non-navigable and navigable streams and small lakes within the state take title to the land underneath the water abutting upon their premises. The public has an easement in such waters for the purposes of travel as upon a public highway, which easement is inalienable and gives the state the right to use, regulate and control the waters for the purposes of navigation.
    3. Same—Wharves and piers—Public has no right to use private wharves and piers.
    The public has no right to use wharves rr piers erected by the owners of land adjacent to navigable waters, although such whaives extend beyond low water mark and were erected without the consent of the state. If the state permit such structures to remain, no private individual has any right of entry upon them without the consent of the owners.
    4. Same—Ejectment a proper remedy.
    Where a pier was constructed upon piles driven into the earth and title thereto vested in the same person who was the owner and had the right to use the land: Heed, that ejectment may be maintained to recover the possession of it.

      . Appeal from a judgment entered in Yates county upon the report of a referee.

      W. S. Oliver, for resp’t; John Gillette, for appl’t.
   Haight, J.

This action is ejectment for the recovery of the lands and tenements known as the Wagner Steamboat Dock Lot and Pier, situated at or near the foot of Pine street in the village of Penn Yan. The answer admits that the plaintiff has some interest in some portion of the premises mentioned in the complaint, and to which portion the plaintiff is entitled to possession, and denies that at the time of the commencement of the action, or at the time of the demand of the possession, that it refused possession thereof. A former action was brought in the supreme court by this plaintiff against the defendant to recover the possession of this pier and dock. Issue was joined and the case was tried, resulting in a judgment for the plaintiff, which was affirmed in this court (37 Hun, 9). Plaintiff’s lease, upon which that action was based, having expired on the 21st day of February, 1883, Henry N. Wagner executed and delivered to W. L. Hosley a lease of a tract of land situate in the village of Penn Yan on the bank of Lake Keuka, an outlet running northerly along the bank of the outlet at the water’s edge, together with the pier or dock in question, for the term of five years from the 1st day of March, 1884. This lease was assigned to the plaintiff, and then this action was brought on the 12th day of April, 1884. The former action sustained Wagner’s title to the premises, and the lease executed by him, under which the plaintiff claimed possession in that action. We shall not, therefore, enter upon any further discussion of the Wagner title; _ in fact we do not understand it to be seriously questioned by the appellant. The appellant claims the right to occupy some portion of the pier in question as the lessee of Charles V. Bush, and the chief question of fact in controversy is over the boundary line between Bush and Wagner. The monument fixed in the deed is a pine stump upon the bank of the outlet, and the conflict in the testimony is over the location of this stump. The testimony given on behalf of the plaintiff tends to show that the stump stood at the southeast corner of the pier; that it had an iron pin driven in the top of it, and that upon digging down in the ground about two feet a pine stump was lound having an iron pin in it. It was claimed on behalf of the defendant that the stump which was the boundary line stood about five feet further north, and that consequently five feet of the pier stood upon Bush’s lot; but when the stump was dug for at this place none could be found. The referee has found as a fact that the stump found was the boundary stump, and that no part of the pier was consequently upon the Bush lot. The evidence, though conflicting, was ample to sustain the finding of fact in this regard.

The defendant also presents a lease from George Wagner, as one of the surviving executors of Abram Wagner, deceased, in which he pretends to lease to the defendant the land under water in the outlet upon which the pier in question stands. Abram Wagner was the original owner of all the lands in question, including the land under the water of the outlet. Henry N. Wagner was one of his sons. Abram Wagner died leaving a last will and testament in which he appointed three executors. The residuary clause in the will (being the cause affecting the lands in question),' devised and bequeathed all the rest and residue of his estate, both real and personal, not before devised or bequeathed, unto his heirs-at-law, to be equally divided between them , and then provided that in case his heirs could not agree on a division of the property, he ordered and directed and empowered his executors within a reasonable time after his decease to s&E and dispose of the same for the best price they could obtain and to divide the proceeds among his heirs-at-law. Abram Wagner died in 1853 upwards of thirty years ago.

It will be observed that the executors were only given a power of sale. The title was not vested in them. This power of sale was only to be executed upon condition that the heirs were unable to make a division among themselves. It was then to be executed within a reasonable time after his death. The will further provided that the power or authority given by it to executors should be possessed and exercised by a majority of such executors. At the time this lease was executed one of the executors had died; the other two still survived. It was executed, as we have seen, by but one of the executors, and that, thirty years after the death of the testator. It was not a sale as required by the will so that the proceeds could be distributed among the heirs-at-law, but was a lease for a term of years. We do not think such lease was authorized by the provisions of the will, or that this executor had the power to give it. The other questions pertaining to the defendant’s title are discussed in the opinion of this court in the former action and require no further comment.

Again it is claimed on behalf of the appellant that the plaintiff must recover upon the strength of its own title ; that Henry N. Wagner was not the owner of the lands underneath the water of the outlet, and for this reason the plaintiff cannot recover. The Henry N. Wagner deed wa dated in 1853, and was bounded on the water front by the bank of the outlet at the water's edge. He derived title through the executors of his father, Abram Wagner. The deed to Abram Wagner conveyed land under the water of the outlet. The heirs-at-law of Abram Wagner have executed leases to the plantiff of such lands. The evidence shows, and the referee has found, that for more than twenty years after the conveyance to Henry N. Wagner, he used, occupied and enjoyed the waters of the outlet adjacent to and opposite his premises, and the lands thereunder, for the purposes of a dock, boat-houses and pier, and received the rents and profits of the dock, boat-houses, piers and appurtenances thereto as his own exclusive property, and no claim thereto or to any part thereof was ever made by the heirs and devisees of Abram Wagner. It is consequently claimed by the plaintiff that so far as the heirs of Abram Wagner are concerned, that Henry JSf. Wagner had acquired title by adverse possession and that his lease to the plaintiff in this action of such pier standing upon the land underneath the water, is good and valid. But the heirs of Abram Wagner are not here questioning that. lease. On the contrary they have joined in a lease to the plaintiff of the same lands.

Keuka lake is one of the small fresh water lakes in the interior of the state where the tide does not ebb and flow. It is navigable by small vessels. The lands in question are in the outlet of the lake and are at the point, as we understand, where navigation terminates. The rule is that riparian owners of lands adjoining fresh water, non-navigable and navigable streams, and small lakes, within the state, take title to the land underneath the water abutting upon their premises. The public has an easement in such waters for the purposes of travel as upon a public highway, which easement, as it pertains to the sovereignty of the state, is inalienable, and gives to the state the right to use, regulate and control the waters for the purposes of navigation. Smith v. City of Rochester, 92 N. Y., 463. Wagner being the owner of the lands abutting upon the outlet would consequently be deemed the owner of the thread of the stream and have the right to use it subject to the public easement.

But again, it is claimed that this pier is constructed in a public highway, and that consequently the public has the right to use it. But the case of Wetmore v. The Brooklyn Gaslight Co. (42 N. Y., 384) disposed of this question, for it was in that case held that the public had no right to use wharves or piers erected by the owners of land adjacent to navigable waters, although such wharves extend below low water mark and were erected without the consent of the state; that if the state sees fit to permit such structures to remain, no private individual has any right of entry upon them without the consent of the owners.

Again, it is insisted that the pier is personal property. It was constructed upon piles driven into the earth. It was built by Wood, a tenant of Wagner. After Wood’s lease expired the pier became Wagner's. The title of the structure consequently vested in the same person who was the owner and had the right to use the land. We are, consequently, of the opinion that ejectment may properly be maintained to recover the possession of it. It is an open, visible, fixed, immovable structure, located at the point indicated in the complaint, and we regard the description given as sufficient to enable the sheriff or other person to make delivery.

We discover no errors in the admission or rejection of evidence, or in the findings or refusals to find that will affect the result.

The judgment should consequently be affirmed.

So ordered.

Bradley and Lewis, JJ., concur.


text:
    Jonathan B. West, App’lt, v. The Conesus Lake Salt Mining Company, Limited, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1887.)

    1. Contract—Burden on plaintiff to prove performance.
    Plaintiff contracted to furnish, deliver and put in good order in defendant’s salt works a complete set of his raking apparatus, constructed substantially after the plan of a model referred to that should remove the salt from defendant’s grainers and carry it to the storage bins as fast as made, in a fair, workmanlike manner, and guaranteed the working of the apparatus in as good order as any other kind of rake. Defendant agreed lo pay for the rakes as soon as they were finished and had been in successful operation, according to the specifications. Plaintiff put the machine in defendant’s works, and it was op'erated for some months. Plaintiff alleges performance, which defendant denies. Held, that the burden was with the plaintiff upon the issues to show performance of his contract.
    S. Same—Construction of—Evidence—Competency of.
    The successful operation of the machine was the raking the salt from the grainers, and after suitable drainage conveying it to the storage bins. Defendant gave evidence of the condition of the salt raked out and taken to the bin by plaintiff’s apparatus, to which objection and exception were taken by plaintiff. Held, that the contract was something more than a mere contract frr service on the part of the plaintiff; he undertook to supply by the apparatus of which he was the inventor the requirement for the work it was designed to perform in the business of defendant’s works. That evidence of the impaired condition of salt was competent, so far as it was attributable to the defective operation of defendant’s machii.e.
    8. Evidence—Competency of.
    The chains by which the rakes were operated were in the brine of the grainers, and some evidence was given of the effect of the brine upon them, and tended to prove that it produced corrosion. Held, that while the position of the chains must have been seen from the plans submitted, yet the evidence could not have been said to be incompetent, for it might have been contemplated that the metal would be so prepared as to be proof against the brine.
    4. Verdict rendered on conflicting evidence—When not disturbed.
    There being a conflict of evidence upon the question of the operation of the machine, its manner of doing its work, and the opportunity given to plaintiff to repair and correct defects therein. Held, that these were questions of fact for the jury, and their finding not being against the weight of evid.nce could not be interfered with.
    Appeal from the judgment entered on verdict of Livingston circuit, and from order denying motion on minutes for new trial.
    The defendant is a corporation engaged in the manufacture of salt. The action is* brought upon a contract of date February 10, 1885, made between the parties, by which the plaintiff1 agreed to furnish, deliver and put in good running order in the defendant’s works, a full and complete set of his raking apparatus, constructed substantially after the principle and plan of a model referred to, that should remove the salt from the defendant’s four grainers, and carry it to the storage bins as fast as made in the four grainers, “ and do it in a fair workman-like manner,” and he guaranteed “ the working of the said apparatus in as good order as any other kind of raker,” then known. For which defendant agreed to pay him $1,500—“as soon as the said rakers are finished and have been in successful operation according to the specifications.” The plaintiff proceeded to, and did put his apparatus into the defendants works, and in June and July of that year it was operated some in raking the salt from two of the grainers, and in carrying it into the storing bin. The plaintiff alleges performance and seeks to recover the contract price. The defendant denies performance by the plaintiff. And the trial resulted in a verdict for the defendant.

      Horace McGuire, for app’lt; E. A. Nash, for resp’t.
   Bradley, J.

The burden was with the plaintiff upon the issue to show performance of his contract, and he did give evidence tending to prove that the apparatus furnished by him and put into the defendant’s salt block, was such as he undertook by his contract to provide, and that it would operate successfully in doing the work required of it. But on the contrary, the evidence on the part of the defendant was to the effect that it failed to work; and that the plaintiff having been given ample opportunity failed to give to it successful operation as he had undertaken to do.

The question whether or not the plaintiff had substantially performed his contract, was fairly submitted to the jury, and the jury found against him. It is unnecessary here to refer specifically to the evidence upon that question of fact. It was sufficient to permit the conclusion reached by the jury and to support their verdict. The successful operation in view was the rating the salt from the grainers, and after suitable drainage to convey it to the storage bins, which was the final disposition of it preparatory for market. The defendant gave evidence of the condition of the salt raked out and taken to the bin by the plaintiff’s apparatus, to which objection arid exception were taken by the plaintiff. -

And it is contended that this evidence was incompetent for any purpose, because the liability of the defendant to pay, did not depend upon the absence of defect in the principle, or system of its operation, as that was understood and adopted by the defendant, and the plaintiff was in no sense responsible for the condition of the salt when deposited in the bins; which was dependent upon the character of the brine, and the process of production of the salt from it.

The evident purpose of the defendant, and the intention of the parties was to transfer the salt precipitated in the grainers, in the,heating process of its production to the bins in the proper condition for market, else the result in view would not be accomplished. It was therefore agreed that this work should be done “in a fair workmanlike manner,” and that payment should be made when the rakers and conveyors were finished and in “successful operation according to specifications.”

This was something more than a mere contract for service on the part of the plaintiff. He was the projector and inventor of the apparatus. And he undertook to supply by it the requirement for the work it was designed to perform in the business of the defendant’s works.

It is true he had submitted his model, with the specifications, and had thus given the defendant information of the method and plan of its operation, but still it was one of the conditions that its operation should be successful, and it should do that which was required in a fair, workmanlike manner. It would seem to follow that if the character or quality of the salt was materially injured by the operation of the plaintiff’s apparatus its impaired condition, so far as attributable solely to that, may properly have been proven. And this was evidently the purpose of the evidence. One, and an important feature in the process of the transfer of the salt from the grainers to the storage bins, was_ suitable drainage from it of the bririe before the final deposit of the salt there.

This the parties understood. And the process was to rake the salt from each of the grainers up, and on to an inclined plane, and permit it to remain there until the brine had escaped from it, and ran back into the grainer before pushing it forward into the conveyors, and its transmission into the bins.

The rakers of this apparatus brought the salt up this inclined surface, and the design was that each one should there deposit it for such drainage, and that the succeeding one should, in making its deposit, also shove the preceding-deposit into the conveyor, and be taken by means of operating buckets to the bins.

There was evidence tending to prove that the operation of this machinery was defective in its process, in that it. did not permit the requisite drainage, but that the salt permeated with the brine was carried directly into the conveyors, and by the action upon it of the buckets in the process of taking it forward to the bins, the salt was pulverized, its grain destroyed or impaired, and going into the bin in that condition, so saturated with brine, it became, when dry, a hardened mass unfit for market, and that this was wholly attributable to the defective operation of the plaintiff’s apparatus. This relation of the effect to such cause would seem to render competent the evidence given of the condition of the salt when finally so deposited in the bins, for the consideration of the jury in the event that they found the facts with the defense in respect to the alleged cause of such condition, and upon the question whether the operation of the apparatus came within the requirement of the contract. The chains by which the rakes were operated were in the brine of the grainers, and some evidence was given of the effect of the brine upon them, and tended to prove that it produced corrosion.

The plaintiff took exception to this evidence also. While that fact had but little, if any, importance upon the main question, as it must have been understood by the defendant when the contract was made that these chains would be operated in that place and manner, yet it cannot be said that the evidence was incompetent for it may have been contemplated that the metal would be so prepared as to prevent any material impairment of the chains by their contact with the saline solution. The contract provided that they should be made of the best bronze or gun metal.

The evidence was descriptive of that portion of the apparatus and its situation. And that of the plaintiff was that the chains were not corroded. There was no evidence to fairly justify any inference that any injurious effect resulted to the salt from the character of the chains. The opinion of a witness to the effect that they dissolved the salt, was promptly stricken out, nor did such evidence appear to have been received upon any ruling of the court allowing its admission.

There was some evidence that the salt was somewhat discolored, but none to the effect that this condition was chargeable to the operation of the apparatus, unless the imperfect execution of its work, which permitted some of the salt to escape from the trough in which it was to be carried and go on to the floor. This was one of the defects claimed by the defendant to exist. And the evidence on the part of the defense tends to prove that the plaintiff was permitted, and given ample time to repair and improve his apparatus, to obviate if he could the defective operation complained of ; and that because he did not do so, it was removed from the works by the defendant after this action was commenced. Upon this question of its operation, the manner it did its work, and the opportunity to repair and perfect its operation, there was some conflict of evidence, which presented for the jury a question of fact. And we cannot say that their finding was against the weight of the evidence, so as to permit interference with their verdict.

We have carefully examined all the exceptions taken on the trial, and think no error was committed by the trial court.

The judgment and order should be affirmed.

Haight and Childs, JJ., concur.


author: Smith, P. J.

text:
    First Presbyterian Society of Lewiston, Resp’t, v. Charles B. Ayer, Appl’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1887.)

    1. Pleading—Justice’s Coubt—Complaint—Mutual mistake.
    The complaint in an action in a justice’s court alleged in substance that the plaintiffs assignor purchased a bond and mortgage against one H., on which it was supposed and alleged there was due the sum of $888. B7, which sum the assignor paid the defendant therefor, whereas the amount then due on the bond and mortgage was in fact fifty-eight dollars, _ or thereabouts, less than so supposed and paid. Held, that the complaint stated enough to “enable a person of common understanding to know” that an overpayment by mutual mistake was intended to be alleged; and the proof sustaining that allegation entitles plaintiff to recover.
    2. Assignment—Claim fob money paid by mistake assignable.
    A claim for money overpaid by mutual mistake of facts is assignable.
    , Appeal from a judgment of the Niagara county court affirming a justice’s judgment.

      Joel L. Walker, for app’lt; Ellsworth & Potter, for resp’k
   Smith, P. J.

We think the judgment of the justice may properly be sustained upon the ground of an over-payment by mutual mistake. The complaint alleged, in substance, that the plaintiff’s assignor purchased a bond and mortgage of the defendant against one Henry, on which it was supposed and alleged there was due the sum of $888.37, which sum the assignor paid the defendant therefor, whereas the amount then due on the bond and mortgage was in fact fifty-eight dollars, or thereabouts, less than was so supposed and paid. Within the liberal rules applicable to pleadings under our present system, and especially to pleadings in justice’s courts, the complaint stated enough to “ enable a person of common understanding to know ’’ that an over payment by mutual mistake was intended to be alleged. The proofs sustained that allegation. It was shown that the witness, Scovell, who drew the assignment from the defendant to Sally Ayer, the plaintiff’s assignor, and witnessed its execution and took the acknowledgment of it, made a mistake in computing the amount due on the bond and mortgage, and thus made the amount too much, by omitting a certain payment that had been made on the bond and mortgage prior to such assignment, and that the amount figured by him, including such excess, was paid to the defendant. The proof justifies the inference that all the parties to the transaction acted in ignorance of the mistake.

The suggestion of the appellant’s counsel that the excess was paid as a bonus for the transfer of the bond and mortgage, finds no warrant in the proofs, nor is it set out in the answer. Indeed, the answer does nothing more than to put in issue the selling of the mortgage for the amount stated in the complaint. It is, therefore, inconsistent with the idea that a bonus was paid, and it impliedly admits the allegation that the sum paid was the sum “supposed and alleged” to be due. The plaintiff, therefore, on proving that the sum paid was in excess of the amount due, was entitled to recover. The claim for the over payment was assignable. It does not appear that any objectionable evidence was received at the trial. It follows that the judgment appealed from should be affirmed.

Barker, Haight and Bradley, JJ., concur.

Affirmed.


author: Angle, J.

text:
    Franklin Spaulding, as Assignee of Abraham Witmer et al., in trust for the benefit of their creditors, Resp’t, v. James H. Kelly, survivor of himself and Joseph E. Ways, deceased, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 25, 1887.)

    1. Copartnership—Acts op partner not within the scope op the CO-PARTNERSHIP DO NOT BIND THE OTHER PARTNERS—PROMISSORY NOTE.
    Ways, one member of the firm of Ways & Kelly, in the name of the firm as maker, made two several notes, each payable to the order of himself, and endorsed them, payable to a certain firm of private bankers, who discounted said notes, and at a rate greater than the legal rate, and placed the proceeds of said notes to the individual credit of Ways and paid the same out on the individual checks of Ways, each of said notes being the last oí a series of notes extending through nineteen and sixteen renewals respectively of two months each, each note of each series having been made by Ways in the name of the firm, payable to his order and disposed of in the manner aforesaid to the said bankers. The said _ bankers having failed and made an assignment for the benefit of creditors, this suit is b¡ ought by the assignee against Kelly as survivor of the firm of Ways & Kelly, dhcre is no evidence tending to show that Ways ever made or issued any promissory notes or other obligations purporting to be made, or made by the firm, except the notes in the two series aforesaid. Kelly had no actual notice or knowledge of any or either of said notes of either series prior to the death of Ways, and did not know of the making, endorsement or negotiation by Ways, and no part of the consideration of either of said notes ever came to the use or for the benefit of Kelly individually or of the firm. Held, that the said bankers were bound to know that Ways had no right to use the partnership to create or increase his individual credit or account at the bank without the consent of his partner, and they were chargeable with notice that the notes were wrongfully made and issued. That the transaction was neither apparently or really within the scope of the partnership business, and the partnership was not bound by the act of Ways in the transaction.
    2. Same—One dealing with pabtneb bound to know nis poweb.
    The fact that e .cli of these notes was the last of a long series of notes which had been used by Ways in the same manner to sustain his individual credit and funds wi.h said bankers, and the fact that at no t me during the life of either of these two series of notes did said bankers have any notice or knowledge of the fact that Kelly was ignorant of the existence of any of said notes will not enable the plaintiff to recover.
    3. TJsuby—Not available as a defense to pbinoipal of notes against PBIVATE BANKEBS—LAWS 1882, CHAP. 409, §§ 68, 69.
    The defense of usury is not available against the principal secured by notes discounted by private bankers under Laws 1883, chap. 409, §§ 68,69.
    Appeal from judgment for plaintiff on report of referee. Action upon two promissory notes made in the name of defendant’s firm.
    The referee finds that James H. Kelly and one Joseph E. Ways were partners under the name of Ways & Kelly, from October, 1876, to about June J, 1884, when Ways died; that about May 3, 1884, Ways, in the name of the firm as makers, made their promissory note of that date for $2,000, payable in thirty days, to the order of himself, at the bank of the plaintiff’s assignors, for value received, and said Ways then endorsed said note to said assignors for a valuable consideration; that before the commencement of the action said note, with all other property of the assignors, was transferred* to plaintiff for the benefit of their creditors, and he now is the owner of said note which remains unpaid; that about May 31, 1884, said Ways, in the name of the firm as makers, made their promissory note of that date for $2,000, payable in fifteen days after date to the order of himself at the Manufacturers’ & Traders’ Bank in Buffalo, for value received, and said Ways then endorsed and delivered said note to the plaintiff’s assignors for a valuable consideration; that before the commencement of the action the plaintiff, as such assignee for the benefit of creditors, became the owner of said note, which is wholly unpaid; that the business of said Ways & Kelly was buying and selling grain, and was carried on at Lewiston, N. Y.; that plaintiff’s assignors, during the existence of Ways & Kelly, were partners at Suspension Bridge, N. Y., under the name of Witmer Brothers, their' business, being that of private bankers, bill or note brokers and money lenders; that they had no corporate existence or organization as a bank, but the business of said firm was done, and its accounts kept in the ordinary mode pursued by banks; that said note of May 3, 1884, was endorsed by Ways: “Pay Witmer Brothers’ Bank, J. E. Ways,” and presented to said Witmer Brothers, who then and there discounted it at the request of Ways, and paid him therefor $1,986, and no more; that said note of May 31, 1884, was on that day endorsed by Ways, ‘c pay Witmer Brother’s Bank, J. E. Ways,” and presented to said Witmer Brothers," who then and there discounted it at the request of Ways and paid him therefor $1,992, and no more; that the firm of Ways & Kelly was solvent till its dissolution by the death of said Ways; that each of said notes was the last of a series extending in the case of the note of May 3, 1884, from February 28, 1881, through nineteen renewals of two months each; and in the case of the note of May 31, 1884, from October 31, 1881, through sixteen renewals of two months each; that each note of each series was made by Ways in the name of Ways & Kelly, payable to the order of Ways, and endorsed by him and discounted by Witmer Brothers at his request at a discount of 8 4-10 per cent per annum in advance for the time it had to run, and the proceeds of each note of each series was credited on the books of Witmer Brothers to the account of Ways; that the discount taken by Witmer Brothers on each of the two notes in suit was taken by them knowingly and with intent to secure to themselves more than the legal rate of interest; and Ways knew that such rate of interest was charged and taken for that purpose and consented thereto; that at no time during the life of either of said series of notes, or at the time of giving, transferring or discounting the two notes in suit did said Witmer Brothers have any notice or knowledge of the fact that Kelly was ignorant of the existence of said series of notes, or of the making or discounting of the two notes in suit.
    Other findings of the referee are set forth in the opinion.

      Joel T. Walker, for app’lt; L. F. Bowen, for resp’t.
   Angle, J.

A leading point in this case arises on defendant’s exception to the conclusion of law of the referee that Witmer Brothers, at the time of the discount of the two notes in suit, became bona fide holders and owners thereof. The portion of the opinion of the referee in which this point is considered is:

“ Assuming it to be a fact that no portion of the proceeds of this paper ever passed to the benefit of Ways & Kelly, or Kelly individually, I do not find in any of the authorities cited by counsel for the defendant, each of which to the number of about one hundred I have carefully examined, any rule of law that would prevent the recovery by a bona fide holder of this paper against the firm of Ways & Kelly arising out of any failure on the part of W ays to apply the money to the benefit of his firm. Ways was the financial member of the firm; he raised the money required by the business of Ways & Kelly to be raised upon drafts, shipping bills, or other evidences of debt, and it would be hard, indeed, to charge the general public with loss from any abuse by Ways of the relation which he sustained to his firm.”

In his sixth finding of fact, the referee also says:

“Ways was the financial member of said firm, and by and with the knowledge and consent of said James H. Kelly negotiated all drafts and other evidences of debt belonging to said firm, and also attended to such banking business as said firm had in the course of its operations.”

It is to be observed that the referee nowhere finds that Ways ever made, issued or used any promissory notes or other obligations purporting to be made, or made by Ways & Kelly, except the notes in the series under examination in this case, and the above finding of the referee gives no legal presumption that Kelly knew his partner was using the firm credit for any purpose outside the business of the firm, especially in the face of a finding in the fourth finding of fact that “Kelly had no actual notice or knowledge of any or either of said notes of either series prior to the death of Ways;” and also in his ninth finding of fact, “that the defendant James H. Kelly did not know of the maldng, endorsement or negotiation of said two promissory notes at the time the same were so as above stated respectively made,endorsed and negotiated by said Joseph E. Ways, and no part of the consideration of either of said two notes ever came to the use or for the benefit of the defendant-James H. Kelly, individually.

There is no finding that airy portion of the money arising from the discount of any note in either series ever came to the use or benefit of the firm of Ways & Kelly.

It is clear that the report of the referee (so far as this point is concerned) must stand or fall upon the sole ground on which the referee has put plaintiff’s right to recover in the first conclusion of law, viz: “-That said Witmer Brothers at the time of the discount of each of said two notes upon which this action is based became bona fide holders and owners thereof and the plaintiff succeeded by said assignment to all their rights and interests therein.” The question of bona fides in this case is a mixed question of law and fact, and the above conclusion of law arrived at by the referee must be regarded as a conclusion from the facts he had previously-found. His tenth finding of fact is, “ That the proceeds of each of said two promissory notes were by said Witmer Brothers placed to the individual credit of said Joseph E. Ways upon their books and as a part of the discounting of the same, and the said individual account of said Joseph E. Ways was thereafter subject to, and paid out by said Witmer Brothers upon the personal check of said Joseph E. Ways.” »

Upon those facts Witmer Brothers were not bona fide holders.

In the case of Union National Bank v. Underhill (102 N. Y., 336, 2 N. Y. State Rep., 48), one Cheney had made the notes of his firm payable to the order of a third person who endorsed them and then they were delivered by Cheney to the bank in payment of an individual debt he owed it, and the court stating the law and applying it to the case, say (p. 340,) “plaintiff knew that Cheney was issuing this partnership paper to pay his individual debt and it was .bound to know that he had no right to use it for that purpose without the consent of his partner, and was chargeable with knowledge that the notes were wrongfully made and used. Each member of the firm is the general agent of the firm in relation to all the business of the firm and can bind the firm in what he says or does in such business. But when one of the partners of the firm has a transaction with a third person which is neither apparently or really within the scope of the partnership business the partnership is not bound by his declarations or acts in the transaction. He cannot by his declarations make that a partnership transaction which does not appear to be such, and which is apparently and really an individual transaction. In such case the third person has notice that the transaction is outside the partnership business and he cannot rely on the partnership credit.” The referee has found that “immediately following and as a part of the discounting of the same” the proceeds of said two notes were by Witmer Brothers placed to the individual credit of Ways and were thereafter subject to and paid out upon his personal check. With a slight change in the language of the court of appeals in applying the above principles to the case before it we may apply the same principle to the case before us and say that Witmer Brothers were bound to know that Ways had no right to use the partnership to create or increase his individual credit or account at the bank without the consent of his partner, and they were chargable with notice that the notes were wrongfully made and issued. The transaction was neither apparently or really within the scope of the partnership business and the partnership was not bound by the act of Ways in the transaction. It appeared to be and really was an individual transaction of Ways and Witmer Brothers had notice that the transaction was outside of the partnership business and they could not rely upon the partnership credit.

Nor do we think the condition of plaintiff is improved by the fact that each of these two notes was the last of a long series of notes which had been used by Ways in the same manner to sustain his individual credit and funds with his bankers, nor by the fact that at no time during the life of either of said series of notes or at the time of the giving, transferring or discounting of the two notes in suit respectively did said Witmer Brothers have any notice or knowledge of the fact that Kelly was ignorant of the existence of any of said notes.

The law as stated in 1 Daniels on Negotiable Instruments, sec. 357, is that the negotiation of notes being incidental to and usual in the business of copartnerships for the purposes of trade, it follows that when a copartner borrows money presumedly for the firm and executes therefor a negotiable instrument in the copartnership name, it will bind all the partners whether the borrowing was really for the firm or not, or whether he misapplies the funds or not, provided the lender is not himself cognizant of the intended fraud. In the present case Ways did not profess to procure this discount for the firm, but for himself, and Witmer Brothers were cognizant of the fact that the discount was to increase the individual credit and funds of Ways, for the fact that the proceeds were to go in that way was a part of the discounting.

Another point made by the defendant arises upon the blank in the note of May 31 after the word “fifteen; ” that it was not proven to be due; that the time of payment was left out by mistake, and the omission was not supplied by proof. The referee has found, upon sufficient evidence, that the intention and meaning of said note between Ways and the Witmers was that it should become due and payable fifteen days after date, and that the same was so treated between the parties, and this finding disposes of this point against the defendant.

Defendant also makes the point that the note was void for usury. This question, and the points depending upon it, need not be discussed, for the court in this department have held in Perkins v. Smith (41 Hun, 47; 2 N. Y. State Rep., 695), that such bankers as the Witmer Brothers were private bankers under Laws 1882, vol. 1, pp. 607, 608, §§ 68, 69, and that the defense of usury was not available against the principal secured by notes discounted by them.

Defendant also claims that the referee erred in not allowing as against each note the interest paid upon the whole series of notes of which it was the last. This matter was not pleaded, and this case comes up on a bill of exceptions, and the.bill does not show that the point was made upon the trial, nor do the exceptions to the report of the referee make the point unless an exception to the total amount the referee held the plaintiff entitled to recover is held to be an exception to the non-allowance of this deduction. The objection we think is not specifically presented upon the record and cannot now be raised.

In the National Bank v. Lewis (75 N. Y., 516) cited by defendant’s counsel, these matters were set up in the answer.

It does not seem to be necessary to consider the other points made by defendant.

A new trial should be granted before a new referee, costs to abide the event.

Haight and Bradley, JJ., concur.


text:
    Abram L. Walker, App’lt, v. William O. Leland et al, Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1887.)

    Deed—Reformation of—Equitable relief—What is not a case for. The complaint stated that during negotiations between the plaintiff and defendants for the purchase by plaintiff of certain lands therein described, defendants pointed out to plaintiff what they stated to be the boundaries, of said lands, which boundaries included the whole of the lands on which a certain cheese factory and its appurtenances were situate; that plaintiff relying on said statements and believing them to be true bought said lands and took a deed and paid the consideration. That defendant had no title to, and did not convey the greater part of the lands so pointed out. The relief demanded is that the boundary li íes of the parts of said land which defendant actually owned be determined and the deed reformed in conformity thereto and the relative value thereof ascertained, and defendants decreed to refund to plaintiff so much of the purchase money as shall be a just proportion of the value of said premises which defend .nts did not own, and that of any which they did own and convey, with interest. The complaint also alleged that the deed contained covenants of seisin and of warranty of quiet possession • that defendants were not seised of any considerable part of the premises described in the deed and that the G. O. R. R. Co., were in possession of the same by virtue of a superior title; also that the consideration of such, purchase “ has wholly or nearly failed.” This action having come on for trial at a special term the complaint was dismissed by the trial judge, giving the reason that if the plaintiff had a cause of action his remedy is by a suit at law and not by an equity action. Held, That the complaint stated no case for equitable relief.

      2. Admission made in opening case—Effect of.
    Plaintiff on his opening conceded that the deed from the defendants to plaintiff was an ordinary warran y deed in usual form and contained no covenants of seisin or of title. Held, That that omission was an abandonment of all cause of action for breach of covenants of that nature.
    8. Dismissal of complaint—Action before special term not affording grounds for equitable relief.
    It not appearing that plaintiff asked to have the issue regarded as one at law, or to have it sent to circuit for trial. Held,, That judgment dismissing the complaint was correctly rendered, though not that it was dismissed on the merits.
    Appeal from a judgment entered on a decision of the Cattaraugus special term dismissing the complaint.

      J. Austin Corbin, for app’lt: J. JR. & M. B. Jewell, for respt’s.
   Smith, P. J.

It appears from the opinion of the trial judge that he dismissed the complaint for the reason that if the plaintiff has a cause of action his remedy is by a suit at law, and not by an equity action.

The position of the appellant’s counsel^' understood to be that, although the complaint is framed for equitable relief, it alleges facts which constitutes a cause of action at law, and that if the action be regarded as purely legal, the plaintiff was entitled to have it tried without a jury, unless the defendants objected to that mode of trial before evidence was taken, and then the complaint should not be dismissed but should be sent to the circuit for trial.

The substance of the complaint is that during certain negotiations between the plaintiff and defendants for the purchase by the plaintiff of certain lands described in the complaint, the defendants pointed out to the plaintiff what they stated to be the boundaries of said lands, which boundaries included the whole of the lands on which a certain cheese factory and its appurtenances were situate; that the plaintiff bought said lands, relying on said state- . ments respecting the boundaries, and took a deed and paid the consideration relying on such statements and believing them to be true. That the defendants had no title to, ana did not convey the greater part of the lands so pointed out, and the description included only a small part of the same. The relief demanded is that the boundary lines of the parts of said land which the defendants actually owned be determined and established, and the deed reformed in conformity thereto and the relative value thereof be ascertained and defendants be decreed to refund to plaintiff so much of the purchase money as shall be a just proportion of the value of said premises which the defendants did not own, and that of any which they did own and convey, with interest.

The complaint also alleges that the deed contained covenants of seisin and of warranty of quiet possession; that the defendants were not seised of any considerable part of the premises described in the deed, and that the Genesee Canal Eailroad Company are in possession of the same, by virtue of a superior title derived from the people of the state.

The complaint also alleges that the consideration of such purchase “has wholly or nearly failed.”

It is apparent that the complaint states no case for equitable relief, and the only question is whether the court erred in dismissing the complaint instead of sending the case to the circuit for trial.

Possibly a cause of action may be spelled out from the. complaint, to recover money on the ground of a partial failure of consideration, or breach of covenant of seisin and quiet possession, or for money paid by the plaintiff relying upon representations of the defendants, untruly, though not fraudulently, made.

But it appears from the case as settled, that the decision of the special term did not rest upon the pleadings alone. The case states that it was conceded by the plaintiff upon the opening that the deed from the defendants to the plaintiff “was an ordinary warranty deed in usual form and contained no covenants of seisin or of title.” That admission was an abandonment of all cause of action for a breach of covenants of that nature.

The case also shows that the decision was based upon the “opening” of the plaintiff’s counsel, as well as the admission and the complaint, but what matters were stated in the opening does not appear.

Nor does it appear that the plaintiff asked to have the-issue regarded as one at law, or to have it sent to the circuit for trial. The only exception taken is to the ruling dismissing the complaint, and for aught that appears, the attention of the trial court was not called in any way to the point now urged for reversal.

It is not suggested that the plaintiff, if he resorts to a new action, will be prejudiced by lapse of time, or that for any reason his remedy, if he is entitled to any, will not be as ample and perfect m the new action as in the one now before us.

These considerations lead to the conclusion that the judgment, so far as it dismisses the complaint with costs, is correct.

But the judgment should be modified by striking out the words “on the merits,” which do not seem to be warranted by the decision of the trial judge.

The judgment as so modified is affirmed, 'with costs.

Barker and Bradley, JJ., concur; Haight, J., not voting.

So ordered.


text:
    Louis M. Walters, Appl’t, v. Mrs. C. A. Kenyon, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1887.)

    Supplementary proceedings—Contempt—What sufficient to excuse NON-COMPLIANCE WITH ORDER TO APPEAR BEFORE REFEREE.
    Plaintiff recovered a judgment in the municipal court of the cit)r of II. against defendant, and transcript of the same was filed in the (ounty clerk’s office and execution issued thereon and returned unsatisfied. Thereafter an order was granted in supplementary proceedings requiring defendant to appear before a referee and submit to examination. Defendant did not so appear, and thereupon the same judge by whom the order u as granted made an order for her to show cause before him why she should not he punished as for a contempt of court in neglecting to appear as directed by the previous order. Upon the return day defendant appeared and lead affidavits tending to show that on the return day of the oroer she was ill and was and had been for some time prior thereto sick and unable to leave her house in consequence thoieof. It also appeared that her ad-visor was an attorney and counselor, who advised her not to appear before the referee and submit to examination, as the proceedings were irregular and void. He also testified that he gave such advice in good faith, with no intent to violate the lawful mandates of the court, and believing it would be the best protection of her rights: Upon an appeal from an order denying the motion to punish for contempt. Meld, that these facts were such as would ordinarily induce a judicial officer to excuse non-attendance. That the order appealed from was properly granted.
    The plaintiff recovered a judgment in the municipal court of the city of Rochester against the defendant and a transcript of the same was tiled in the Monroe county clerk’s office and an execution issued thereon and returned unsatisfied. Thereafter an order in proceedings supplementary to execution was granted by the special county judge requiring the defendant to appear before a referee and submit to an examination. The defendant did not appear pursuant to the order, and thereupon the same officer granted an order for her to show cause before him at his chambers why she should not be punished as for a contempt of court in neglecting to appear before the referee as directed by the previous order. Upon the return day the defendant appeared and read affidavits seeking to excuse her failure to appear and submit to examination before the referee. The motion to punish the defendant was denied without costs. From that order the plaintiff appeals.

      Turk <£■ Barnum, for app’lt; Barhite & Heed, for resp’t.
   Barker, J.

The affidavits tend to show that the respondent, on the day fixed for the return of the order supplemental to execution, was ill, and was and had been for some time prior thereto sick and unable to leave her house in consequence thereof. It also appears that her advisor was an attorney and counselor of this court, who advised her not to appear before the referee and submit to an examination, as the proceedings were irregular and void. He also testifies, that he gave such advice in good faith, with no intent to violate the lawful mandate of the court, and he believed it would be the best protection of her rights not to appear before the referee and submit to an examination.

These facts would ordinarily induce a judicial officer to excuse the non-attendance.

We concur in view of the facts of the case, with his determination in denying the judgment creditors motion to punish the defendant as for a contempt. Such proceedings are largely discretionary with the officer before whom proceedings to punish for contempt are instituted. Joyce v. Holbrook, 7 Abb., 338.

On this appeal we do not need to determine whether the defendant was sued by her proper name, nor whether the judgment is binding up her.

Order affirmed, with ten dollars costs and disbursements.

All concur.