text:
    ELISHA RUCKMAN, Plaintiff, v. JOHN GREEN, Defendant.
    Wuisanee— aotion for damages caused by, maintainable though the ca/use ih&reof is situated out of this State — meant lots — damage occasioned to, by.

    An action may lie maintained in this State for an injury to lands situated herein, though the "business which occasions the injury and constitutes the nuisance complained of, is carried on upon lands situated in the State of New Jersey.
    The fact that the premises alleged to have been injured consist of vacant lots does not affect the right to maintain an action to recover the damages sustained thereby; such fact bears only upon the nature and extent of the damages.
    An action may be maintained by an owner of vacant lots to recover damages for the injuries ¿occasioned thereto, by the offensive and noxious smells emitted from bone boiling establishments, whereby the production and market value of the lands have been depreciated, and the lands rendered unsaleable, unproductive, unwholesome and unfit for residence or occupation, and whereby he has been hindered and prevented from deriving any revenue or profit therefrom, and from improving or selling the same for building sites.
    MotioN for a new trial on exceptions ordered to be beard in the first instance at the General Term, after a nonsuit directed by the court.

      This action was brought by plaintiff, a resident of this State, against defendant, who is also a resident thereof.
    The action was brought to recover damages to the plaintiff’s lands, caused by a bone and offal boiling establishment erected by and belonging to defendant upon lands situated in the State of New Jersey. The plaintiff’s lands are on the palisades, on the Hudson river, suitable for suburban residences, 1,300 acres being in New Jersey and 200 acres in the State of New York.
    The complaint alleges the erection and operation of this factory by defendant, and the generation of offensive and unwholesome gases and smells impairing the use and enjoyment of the plaintiff’s land, and to. such an extent as to prevent the sale thereof at advantageous prices to persons named and othei’s.
    The answer admits the ownership of the land, and the erection and operation of the factory.
    The plaintiff proved the nuisance and was proceeding to prove his case, as alleged in his complaint, when he was interrupted by an objection to the evidence. The court excluded the evidence and subsequently dismissed the complaint, to which plaintiff duly excepted.
    The court directed the exceptions to be heard in the first instance at General Term.
    E A. Doolittle, for the plaintiff.
    The allegations of the complaint are sufficient to maintain the action. (Rex v. White, 1 Burr., 333; Rex v. Neel, 2 Carr. & P., 485; Catli/n v. Yaleiv-tine, 9 Paige, 575; McKeon v. See, 4 Robt., 449; Eranees v. Schoelllcopf, 53 N. Y., 152; Wood on Nuisances, §§ 4-9, pp. 331, 332, 485-494, 515-540; St. Helen's Go. v. Tipping, 11 House of Lords Cases, 642; Piclcard v. Collins, 23 Barb., 445.) The action was rightly brought in this State. All actions for injuries to real property, whether the remedy sought be legal or equitable, must be tried in the county in which the subject of the action, or some part thereof, is situated, subject to the power of the court to change the place of trial. (1 "Wait’s Practice, 182; Code, §§ 123, 126 ; Story’s Conflict of Laws, §§ 466, 554; Watts v. Kinney, 23 "Wend., 484; affirmed, 6 Hill, 82; Grams v. McKeon, 2 Denio, 639; Eachus v. HI. and Mich. R.
      A?., 17 Ill., 431; 'Wooster v. Winipisiogee Lahe Go., 5 Foster, 525 ; Northern R. R. v. Mich. Gen., 15 How. [U. S.], 232, 242, and ref;; Morris v. Remmington, 1 Pars. Eq.; Moyslyn v. Fabrigas, 1 Smith’s Lead. Cas., 340 ; Seott v. Shepperd, 2 Wm. Black., 892; Ramermund v. Erie R. Go., 48 How. Pr., 55 ; State v. Lord, 16 N. H., 357; Forest v. Taiman, 117 Mass., 109.) Prevention of sale or impairment of market value constitute special damages. (Kendall v. Stone, 1 Seld., 14; Sedg. on Damages, 144; Bath-rislciel v. Reed, 37 Eng. L. and Eq., 320 ; Smith v. Peet, 9 Exch., 160, 166 ; Addison on Torts, 67, 203'; 2 Greenl. Ev., §§ 469, 470 ; Jeffer v. Gifford, 4 Burr., 2, 141; Frcmeis v. Sehoellkopf, 53 N. Y., 152.) If this court did not have jurisdiction defendant should have demurred. (Code, § 144; Seott v. Shepperd, 2 Wm. Black., 892; Rotehkiss v. ElUng, 36 Barb., 38.)

      Moses Ely, for the defendant.
    The business of which the plaintiff complains was, in itself, a perfectly legal one. And as plaintiff claimed and had no easement in defendant’s land, by virtue of which he might restrain or control any use to which they might be put, the act complained of was not, in itself, an invasion of his rights. (Plank-road Go. v. Douglass, 5 Seld., 444; Mahon v. Brown, 13 Wend., 261; Shrunk v. Na/oigation Go., 14 Ser. & R., 71-84; Thurston v. Ra/neoek, 12 Mass., 220.) Neither were defendant’s lands so far subservient to plaintiff’s as by nature, that there might not lawfully be carried on upon them any business which would not substantially damage plaintiff’s property or render the enjoyment of it uncomfortable. For that reason, also, the sending adrift the odors complained of was not of itself a violation of any right of plaintiff for which an action would lie, even for nominal damages. (Commonwealth v. Rpton, 6 Gray, 473; Sparhawk v. Gnion Passenger Go., 54 Penn., 401; First Baptist Ghureh, ete., v. R. R. Go., 5 Barb., 79; Fish v. Dodge, 4 Denio, 311; Gale on Easements, 448 [293] ; 1 Hilliard on Torts [4th ed.], 584, § 6, and note b, 585, 590 ; Bell v. Ohio, ete., 25 Penn., 161; Brady v. Weeks, 3 Barb., 157; Linden v. Graham, 1 Duer, 670.) Defendant’s objection, upon which the court acted in excluding the offer, was to the “ evidence ” by -which it seems to have been proposed to. sustain it. What that evidence was does not appear by the case, and the court of review cannot say that it was error to exclude it. Besides, the offer was an entirety and each and every part (that is the whole) of it was rejected and there is but a general exception thereto. As the offer embraced several distinct propositions, it was unavailing if either was inadmissible. (Halsey v. Blade,N. .Y., 438; Hurgar v. Edmonds, 4 Barb., 256; Stevens v. Rhine-lander, 5 Robt., 285.) This is in strict analogy to the principle recognized in Walsh v. Kelly (40 N. Y., 556); Hodges v. Cooper (43 id., 216); Palmer v. Holland (51 id., 416); Gothlin y. Dins-more (4 Trans. App., 386; 3 Wait’s Pr., 182, and cases there cited). Loss of particular sales was too remote. It was not the natural and proximate result of the act complained of. (Terwilla-ger v. Wands, II N. Y., 54; Griffin v. Colver, 16 id., 489-495; Sedg. on Mea. of Dam. [6th ed.], 66; 2 Greenl. on Ev., 210; Wilson v. Goit, II N. Y., 442; Ryan v. H. Y. C. R. R. Oo., 35 id., 210.)
   Davis, P. J.:

It appears by the certificate of the clerk that exceptions in this case were ordered to b.e heard in the first instance at the General Term, and although an appeal seems to have been taken on the part of the plaintiff, from the order made by the judge in granting the nonsuit and dismissing the plaintiff’s complaint, yet that may be disregarded and the case treated as if here on the motion for new trial only.

It does not appear in the case on what ground the motion for non-suit was made and granted. The case fails to state, whether after the offer of the plaintiff of certain evidence was ruled out, other evidence was offered by the plaintiff. The plaintiff’s counsel claims, and that probably was the case, that the conrt excluded the evidence and granted the motion for nonsuit, on the ground of want of jurisdiction to try the action. It appeared that the defendant was the owner of and carried on a bone boiling establishment; that this establishment was situated at the foot of the palisades near the State line, between New York and New Jersey, but wholly in the State of New Jersey; that the plaintiff was the owner of a large tract of land contiguous to the establishment of defendant, part of which was situated in New Jersey, and part (being about 200 acres) in New York. Proof was given tending to show that noisome and noxious smells, produced by the business carried on at the defendant’s bone boiling establishment, were carried upon the plaintiff’s lands, and that such smells were sickening and offensive; and it was in substance offered to be shown that the plaintiff’s lands were by reason of such offensive smells greatly injured and depreciated in their market value; that the plaintiff was prevented from making sales thereof to the several persons mentioned in his complaint, and to others, as he might have done but for the nuisance complained of. We think the action can be maintained in this State for the injury done to the lands within the State, although the business of the defendant which occasioned the injury was situated in New Jersey; and that the learned judge erred if he held that the action was local, and could only be maintained in the State of New Jersey. The cause of action arises upon the injury suffered hy the complaining party, and so in respect to the lands situated in this State, the cause of action necessarily arose hero, although the nuisance which produced the injury was situated in another State. There is no sound principle, we think, which precludes a party whose property is specially injured by a nuisance which casts upon it offensive and noxious vapors from maintaining an action, because of the interposition of a State line between the nuisance and the property so injured; and if the injury is to be treated as one solely to the land, and therefore local in its character, we see no reason for holding that the party who commits the injury cannot be held liable in an action brought in the State where the land is situated.

It is well settled, that an action will lie for injuries of the character complained of in this case, at the suit of one who has sustained damages peculiar to himself, but it is claimed in this case that no action will lie because the premises were vacant lots unoccupied by any person living thereon. This fact we think is only a circumstance bearing upon the nature and extent of the damage. If the plaintiff had had tenants upon the premises occupying buildings situated thereon he could, according to the law as settled in Francis v. Schoellkopf (53 N. Y., 152), recover, as his measure of damages, “ the difference in the rental value free from the effects of the nuisance and subject to it.” (McKean v. See, 51 N. Y., 300.) In this case the plaintiff alleges that the offensive stenches had depreciated and lessened the productive, as well as the market value of his lands, and rendered them unsalable, unproductive, unwholesome and unfit for residence, occupation and habitation, and hindered and prevented him from deriving any revenue and profit therefrom, and from improving, selling or disposing of the same for building sites; and also as special damages, he further alleged that he had been thereby prevented from selling the lots to divers persons whom he specially names.

It may be more difficult in a case where the lots are unoccupied to ascertain strictly the measure of damages, but that fact goes to the extent of recovery, and not to the right to recover.

As we understand the offer made by the plaintiff in this case to prove damages, it was intended to show some proof of the particular injuries alleged in the complaint, for the purpose of enabling him to present to the court the question of his right to maintain the action.

The offer is very general, yet as the objection was to each and every part thereof, and as the court excluded each and every part of said offer, and the counsel duly excepted to the ruling, we think it would be unjust to apply to his case the strict and technical rule relied upon by the counsel for the defendant. It is obvious the court intended to exclude all evidence tending to show that plaintiff’s lots were injured and depreeiatéd in their market value by the alleged nuisance, and all evidence tending to show that he was prevented from making sales of the lands by reason of the nuisance. And as it would be competent in such an action to give evidence of that character, we think there is no difficulty in sufficiently pointing the exclusion and exception in this case to competent evidence, which might have been given under the offer.

We are of opinion that the motion for new trial should be granted, with costs to abide event.

DANIELS, J., concurred.

Motion for new trial granted, with costs to abide the event.


source: Caselaw Access Project

author: Davis, P. J.:

license: Public Domain

text:
    NATHAN LITTAUER, Respondent, v. MARCUS GOLDMAN, Appellant.

      Promissory note — sale of, without indorsement — liability of vendor if it be usurious —Implied warranty.

    The owner of a promissory note, by selling and transferring the same, although, without indorsement, warrants the validity thereof, and in case such note is usurious and void, he is liable to the purchaser for the price paid by the latter, with interest thereon, even though at' the time of the sale he was ignorant of the usury, and though he made no representation as to the validity of the note. Such indorser is liable for the costs of an action brought by the purchaser against the maker of the note, in which the defense of usury was sustained, when he has been duly notified of the pendency of the action and of the defense interposed therein.
    Appeal from an order overruling a demurrer interposed to the complaint herein. The action was brought t‘o recover the purchase-price of a promissory note, sold but not indorsed by the defendant to the plaintiff, and the expenses of a suit brought thereon against the makers, of which suit defendant had notice. The note was usurious.

      E. H. Benn, for the appellant.

      B. W. Huntington, for the respondent.
   Davis, P. J.:

The material allegations of the complaint as admitted by the demurrer are, in substance, that the defendant sold to the plaintiff a promissory note which was void for usury in its inception, and which, in an action brought by the plaintiff to recover the same, has been adjudged void, and the plaintiff thrown in costs. The note was sold by the defendant to the plaintiff without any express representation or guarañtee; and the defendant is not alleged to have been connected with the usurious origin of the note. The defendant’s demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, was overruled by the court below.

¥e think that the action can be maintained for the recovery of the money paid by the plaintiff to the defendant for the note, with interest and the costs of the suit, the defendant having been notified of the pendency of the action. and of the defense interposed. In The Delaware Bank v. Jarvis (20 N. Y., 226) the sale of a usurious note was made under similar circumstances, and the purchaser had been defeated in a suit brought against the maker. No express representations or warranty were there made. In that case the defendant had himself purchased the note at a usurious premium and the court below had affirmed the judgment against him, putting stress to some extent upon the fact of his connection with the usury which avoided the note. The opinion of the Court of Appeals was pronounced by Comstooe, J.; and after expressing his substantial concurrence with the court below, he proceeds to say: “In the case before us I do not entertain any doubt that the defendant impliedly warranted against any legal defense to an action to be brought on the note. His very act of transferring it to the plaintiff was the strongest possible assertion that no such defense existed.” And in another part of the opinion he declares, “ that the authorities settle the doctrine in general terms that the vendor of a chose in action, in the absence of express stipulation, impliedly warrants its legal soundness and validity.”

In Webb v. Odell (49 N. Y., 583) the notes sold by the defendants to the plaintiff, were represented to be business paper, when, in fact, they were accommodation notes. They were bought by the plaintiff at such rates as rendered them void for usury. The plaintiff sought to recover back the purchase money on learning the facts. The court held that the plaintiff was entitled to recover;. and in the course of his opinion Chueoh, Ch. J., says: “ They (the notes) appeared like business paper, but were radically different, so different as to change their nature as well as their marketable value. The maxim, emeat emptor, is not applicable in such a case.”

In Gompertz v. Bartlett (75 Eng. Com. L. R., 849) an unstamped bill of exchange, indorsed in blank, purporting to be a foreign bill, was sold without recourse. It proved to be a domestic bill, and it was invalid without a stamp, although both vendor and vendee were unaware of the defect, and it was held that “ the purchaser was entitled to recover back the price from the vendor on the ground that it did not answer the description by which it was sold.” There is no doubt about the right to recover back in case the note sold be a forged one. (Whitney v. National Bank of Potsdam, 45 N. Y., 305; Bell v. Dagg, 60 id., 530.)

The note in this case was absolutely void by statute. The fact that rendered it void existed prior to and at the time of the sale. There was no express representation by the defendant; but we think, under the authorities both in this country and in England, there is an implied warranty that the note is what it purports to be, a legal, valid instrument. It is nothing unless it be this. A recovery in this case stands equally well upon the ground of implied warranty, and upon the ground of a total failure of consideration.

In this case the defendant sold to plaintiff an article of apparent value, which has turned out by the test of judicial proceedings of which the defendant had notice, to have been at the time of the sale of no value whatever. The plaintiff, therefore, received nothing from the defendant for his money; and upon such total failure of consideration, the law implies a promise to return the money, and gives an action for its recovery.

The order of the court below should be affirmed with costs, and with the usual leave to the defendant to answer over on payment of costs.

Brady and Daniels, JJ\, concurred.

Order affirmed, with costs, and with the usual leave to the defendant to answer over on payment of costs.


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    In the Matter of the Petition of MARY E. SERRILL to vacate an Assessment.

      Assessment — presumption as to payment of, ai'ising from lapse of time — ehap. 580 of 1872 — repa/oing—burden of proof as to.

    Upon an application to vacate an assessment for paving, the petitioner claimed to be relieved from the necessity of proving fraud, as required by chapter 580 of 1872, on the ground that an assessment upon the property for paving the same street had already been paid. Upon the trial an assessment list confirmed in 1838 was given in evidence, by which the property was assessed twenty-six dollars and sixty cents for paving tlie street. No evidence was given to show that the assessment had been paid. Held, that in a proceeding such as the present no presumption arose from the lapse of time that the former assessment had been paid, and that the petition was properly dismissed.

      Quc&re, whether, as the evidence of payment in such cases is a matter of public record, any presumption of payment arises in the absence of such records.
    Appeal from an order of the Special Term, denying a petition to vacate an assessment for paving Murray street, in the city of New York.

      T. F. Neville, for the appellant.

      Jno. A. Beall, for the respondent.
   Davis, P. J.:

The extremely loose and incompetent evidence by which the appellant’s title was proved was not objected to on the part of the respondent. Such looseness of proof ought not to be tolerated, but no point can be made here on that ground, that will affect the result of the appeal.

By chapter 580 of the Laws of 1872, section 7, which is substantially re-enacted in chapter 313 of the Laws of 1874, it is enacted that no assessment shall hereafter be vacated or set aside, except only in cases in which fraud shall be shown, and in cases of assessments for repairing any street or public place, upon property for which an assessment has been once paid for paving the same street or public place.

The appellant showed no fraud in respect to the assessment sought to be vacated. Her whole case was put upon the ground that a prior assessment for repaving the same street had once been paid. Upon this question she clearly held the affirmative. It was for her to show that the previous assessment for repaving the street had not only been made, but had in point of fact been paid. She proved that an assessment had been made more than twenty years ago, and then rested her case upon what she claims to be a presumption of the payment of such assessment, arising from the lapse of time. She produced an assessment list confirmed in 1833, and proved by the clerk of arrears, now the official custodian of assessment lists, that such list remained in his office. This assessment list was for the repaving of Murray street, between Church and Greenwich streets, and so far as it related to the lot now owned by the appellant, purported to assess thereon twenty-six dollars and sixty-two cents. That list contained no evidence of any payment of this assessment for repaving, and the clerk of arrears testified that there was no evidence of its payment in his office, and “ would be none, because it was twenty years before the establishment of the bureau of arrears.” He also testified that the evidence would appear, if anywhere, in the old street department books. Upon this evidence the appellant rested her case, and the court dismissed the petition.

We think the judgment of the court below was correct:

First. Because the presumption of payment from the lapse of time, if there be any, is a shield and not a weapon of offense. It could be used effectively, if any action were brought by the city to recover the assessment of 1833, and woirld devolve upon the city, in that case, the burden of showing affimatively that the assessment had not been paid. But if an action was brought to-recover back the money on the ground that the assessment of 1833 was totally void, and that the payment was made under compulsion, the action could not be maintained upon the alleged presumption ; the actual payment would necessarily have to be shown. (Lawrence v. Ball, 14 N. Y., 477; Morey v. Farmers' Loan and Trust Co., id., 302.) In this proceeding the appellant seeks to be relieved from a present subsisting liability, on the ground of the previous payment by some other party of a similar liability. The effect of vacating the assessment is of course to throw upon the tax-payers the expense of an improvement made for the especial benefit of the appellant’s property. To do that she ought to show a clear affirmative case. According to the testimony produced the evidence of payment, if it existed at all, is to be found in the old street department books. These were neither produced nor accounted for.

Secondly. The evidence of payment in such cases is a matter of public record, and it is doubtful where that is the case, whether a presumption of payment arises at all in the absence of such record.

Thirdly. The assessment of 1833 appears upon its face to have been made for the repaving of Murray street. It indicates clearly that Murray street had previously been paved, and it is quite as presumable that an assessment for repaving the same street was not paid because of its invalidity under some ordinance, as that it was paid by the then owner of the land, in the absence of all evidence to that effect.

The order should be affirmed, with ten dollars costs and disbursements.

Beady and Daniels, JJ., concurred.

Order affirmed, with costs and disbursements.


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    SOLOMON BARNETT, Respondent, v. HENRY SELLING, Appellant.

      Order of arrest — Oode, § 179, subdivision 3 — wrongful conversion of personal property.

    In an action to recover the possession of- personal property, subdivision 3 of section 179 of the Code authorizes an order of arrest: (1), where the property has been concealed, removed or disposed of so that it cannot be found or taken by the sheriff, with the intent that it should not be so found or taken; and (2), where it has been concealed, removed or disposed of, with the intent to deprive the plaintiff of the benefit thereof.
    An action to recover the possession of personal property may be maintained, and an order of arrest obtained, although before the action is brought the defendant has, in fact, disposed of and fully parted therewith.
    Appeal from an order of the Special Term denying a motion to vacate an order of arrest.

      B. S. HFewcombe, for the appellant.

      A. B. Dyott, for the respondent.
   Davis, P. J.:

The papers on this appeal do not contain the pleadings. "We are not able therefore to say that the action is strictly one for the recovery of the possession of personal property; but that fact is fairly to be inferred from the affidavits and the form of the order of arrest. The affidavits on the part of the plaintiff tend strongly to show, and for the purpose of disposing of the question raised in the case may be assumed to establish, that the defendants, by false and fraudulent representations obtained possession of the plaintiff’s check for $2,000, and twelve packages of tobacco of the value of $1,640. The action is brought to recover possession of these articles on the ground that the plaintiff was entitled to the possession thereof by reason of such alleged fraud. The affidavits on the part of the plaintiff show also, that prior to the commencement of the action the defendant had disposed of the tobacco, and had collected the money on the check and disposed of the same; and the question presented is whether an order of arrest on such a state of facts can be made under subdivision 3 of section 179 of the Code. It must be regarded as settled that an action to recover possession of personal property can be maintained, although before the action is brought the defendant has in fact disposed of and fully parted with it. (Nichols v. Michael, 23 N. Y., 264, and cases cited by James, J., in his opinion.) In that case possession of the goods had been fraudulently obtained by one Pinner; and the goods, prior to the commencement of the suit, had been transferred by assignment to the defendant Michael; and one question of the case was whether an action to recover possession' would lie against Pinner. The court approved the rule laid down in Brockway v. Burnap (16 Barb., 309), that the action to recover personal property could be maintained,- notwithstanding the defendant had wrongfully parted with its possession before the suit had been commenced.

The third subdivision of section 179 of the Code provides that a defendant may be arrested in an action to recover possession of personal property unjustly detained, where the property or any part thereof has been concealed, removed, or disposed of, so that it cannot be found or taken by the sheriff, and with the intent that it should not be so found and taken, or with the intent to deprive the plaintiff of the benefit thereof.

It seems quite manifest that the intention of this provision is to give to a plaintiff the right to arrest the defendant in either of two cases:

First. Where the property has been concealed, removed, or disposed of so that it cannot be found or taken by the sheriff, and with the intent that it should not be so found or taken; and,

Second. Where it has been concealed, removed, or disposed of, with the intent to deprive the plaintiff of the benefit thereof.

It follows that in any case in which the plaintiff is entitled to maintain an action to recover the possession of the personal property, he may have his order of arrest if he can establish either of these alternatives to the satisfaction of the judge, to whom the application for the order is made.

It being settled by the authorities above cited, that the action will lie where the possession of property has been fraudulently obtained by the defendant, notwithstanding he has disposed of its possession before suit brought, it seems to be a logical conclusion that if the sheriff is unable to find and take the property, the right to the order of arrest arises upon the plaintiff’s showing that the disposal made of it by the defendant was “ with the intent to deprive the plaintiff of the benefit thereof.”

In this case it is claimed that the affidavits do establish that state of facts; and in that view we are inclined to concur with the court below.

The title of the property, upon the theory of the action, remained all the while in the plaintiff. The disposition of it as against him was a tortious act; and he could have maintained an action of tort, based upon the fraud by which the possession was gained, and in that form of action have obtained his order of arrest under subdivision 4.

Subdivision 3 only requires the additional intent in the concealment, removal or disposition of the property, to wit, to deprive the plaintiff of the benefit thereof, to entitle him to the order of arrest in the particular form of action mentioned in that subdivision. The form of the action does not injuriously affect the defendant, because the right to recover in either case depends upon establishing the alleged original fraud, which enters into the substance of the action itself and must be determined by the verdict of a jury. But, under subdivision 3, before obtaining the order of arrest, the plaintiff takes upon himself the burden of showing that the disposition of the property was with the intent, mentioned in that subdivision, which is a fact outside the merits of the action.

This has been satisfactorily done in this case.

We think the order should be affirmed, with ten dollars costs and disbursements.

Beady and Daniels, JL, concurred.

Order affirmed, with ten dollars costs and disbursements.


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    THE OCEAN NATIONAL BANK OF THE CITY OF NEW YORK, Appellant, v. SELAH C. CARLL, Respondent.

      Entries in books, and memoranda — made in the usual course of business — when admissible in evidence.

    Entries and memoranda made in the usual course of business by notaries, clerks and otter persons may be received in evidence after tbe death of tbe person making the same. In an action by a bank upon a promissory note, the discount book used by it at the time of the alleged discount was produced, and it was proved that the entries therein relating to the discount of the note were in the handwriting of the discount clerk, whose business it was to make such entries, and that he was then dead. Held, that the entries should be received in evidence.

      Ocean Bank v. Oa/rU (55 N. Y., 420) distinguished.
    Appeal from a judgment in favor of the defendant, entered on a verdict directed by the court.

      Dunning, JEdsall (& Hart, for the appellant.

      Helson Smith, for the respondent.
   Davis, P. J.:

This action is brought upon a promissory note in the words and figures following:

“ $200. BeooKlyn, July 31, 1869.
“ Sixty days after date I promise to pay to the order of Francis H. Holmes two hundred dollars at the Ocean National Bank, New York, value received.
“S. C. CARLL.”

The complaint alleged the making of the note, and that before its maturity it was duly indorsed to the plaintiff. The answer did not deny the making of the note, but alleged that it was delivered to the payee, without any consideration, as an accommodation note, and that the same was diverted from the purpose for which it was made; that the plaintiff had notice of the true character and history of the note before it took or discounted the same ; that it was received by the plaintiff on account of an old debt, without any new advance, and at a rate of discount greater than the rate of seven per cent on the dollar for one year. At the trial, the plaintiff proved its incorporation, and produced and put in evidence the note after proving its amount with interest, and rested.

The defendant testified that the note in suit was given to Holmes, the payee, in exchange for his note for a like sum, but that Holmes was not to use the note in suit unless the defendant could use his note; that defendant could not use Holmes’ note, and afterwards returned it to him on his promising to redeliver the note in suit, which he did not do; and that he never received any consideration for the note in suit.

This evidence called upon the plaintiff to prove that it was a bona fide holder of the note of the plaintiff for value paid. (Ocean Nat. Bank v. Carll, 55 N. Y., 440; Farmers and Citizens' Nat. Bank v. Noxon and another, 45 id., 762.) To establish these facts, plaintiff produced a discount register of the bank used at the time of the alleged discounting of the note in suit, which contained entries tending to show that the note was discounted by the bank on the 31st day of July, 1869-; and proved that at that time one H. S, Murray was discount clerk of the bank; that he was deceased ; that it was his business to make the entries, and, in short, that they were made in the usual course of business, and were in the handwriting of the deceased clerk. The entries were then offered in evidence. The court refused to admit them until it should be shown that the entries were correct. The plaintiff duly excepted. It was then shown by a witness who was, at the time of the alleged discount, the cashier of the bank, and afterwards its president, in substance, that at that time, when a note was discounted, the only persons who had any thing to do with it were the president and the discount cl^rk, 'and all the president would, do would be to mark it witb the letter “ A; ” that the discount clerk then would enter it upon the discount register, and either give credit, or deliver a check for the amount. It was proved that the note in suit was marked with the letter “A” by the president of the bank, and that that was the evidence upon which the discount clerk acted in making the discount' entries.

The possession of the note by the bank before its maturity was also proved. That fact, however, must be regarded as admitted by the pleadings. The plaintiffs again offered the entries in the discount book in evidence, and they were rejected by the court. There is nothing in the decision in this case when before the Court of Appeals, as reported in 55 New York, 440, to justify the rejection of the entries. At that time, as is stated in the opinion of the Court of Appeals, it appeared that Murray, the clerk, was alive, and within the State, and it was held that the entries made by him could only be proved by the clerk making them, as it appeared he was alive and within the State. The case is now entirely changed by proof of the fact of the death of the clerk, at the time of the last trial. The rule is,” says BeoNSON, J., in Brewster v. Doane (2 Hill, 537), “ that entries and memoranda made in the usual course of business by notaries, clerks and other persons may be received in evidence after the death of the person who made them. (Halliday v. Martinet 20 Johns., 168; Butler v. Wright, 2 Wend., 369; Hart v. Wilson, id., 513; Nichols v. Goldsmith, 7 id., 160; Cowen and Hill’s Notes to Phil. Ev., 674, 676.) And in Sheldon v. Benham (4 Hill, 129, 131), where the entries made by the teller of a bank were offered in evidence, the same learned justice says : “ It is enough that he acted on this occasion in the usual course of his employment, and being dead, the entries which he made at the time were properly received in evidence. The rule for admitting them is not confined to entries made by public officers.” (Welsh v. Barrett, 15 Mass., 380.) Where there is any reason for doubt, it is for the jury to say how much the entries prove. This rule is very distinctly recognized by the Court of Appeals in the decision of the case above cited.

It was, therefore, we think, clearly error for the court below to reject the entries. There were, we think, several other errors in the progress of the trial, in the exclusion and striking out of evidence, and in the refusal of the court to submit the case upon any of the questions to the jury; but it is not necessary to consider them in detail.

The judgment must be reversed and a new trial granted, with costs to abide event.

DaNiels, J., concurred ;■ Beády, J., concurred in the result.

Judgment reversed; new trial ordered; costs to abide event.


author: Davis, P. J.: Beady, J.:

text:
    JOSEPH OESTRICH and LEWIS GREENBAUM, Appellants, v. WILLIAM R. GILBERT and STEPHEN J. WEAVER, Impleaded, etc., Respondents.

      Attachment — seizure of property under— Oiieni, when liable for acts of attorney — ratification.

    In an action in the Marine Court of the city of Mew York, the attorney for the plaintiffs procured an attachment to be issued against the goods of the defendant therein, and delivered the same to a marshal with directions to seize and remove such goods as should be pointed out by one Walker, a clerk of the said plaintiffs. In accordance with the directions of Walker certain goods of the plaintiffs in this action were, against their objection and protest, taken and removed from their store as the goods of the defendants in the first action, and subsequently the said attorney refused to allow the plaintiffs herein to appraise the said goods.
    In an action against the plaintiffs in the former action to recover the value of the said goods the plaintiffs herein were nonsuited. Held, that this was error: (1), because the defendants (plaintiffs in the former action) were responsible for the acts of their attorney in directing the seizure of the goods,  and (3), because there was sufficient evidence of ratification on their part to require the case to be submitted to the jury.
    The principle that after the entry of a judgment in an action and the issue of an execution thereon, the attorney for the plaintiff cannot bind him -by directing the sheriff to make a levy upon the property of a third person, has no application to the case of an attorney procuring an attachment to be issued in the progress of an action and before the entry of judgment therein. (Per Davis, P. J., and Daniels, J.)

      Averül v. Williams (4 Denio, 895) distinguished.

      Appeal from a judgment in favor of tbe defendants, entered upon an order made at' the Circuit dismissing the complaint herein.

      Ransom <& Metz, for.the appellants.

      A. J. Vcmderjooel and George W. Van Slyc7&, for the respondents.
   Davis, P. J.:

This action is brought by the appellants against the respondents and - one Stuart, a city marshal, to recover the value of goods alleged to have been taken from the possession of the plaintiffs by the defendants, and converted to their own use.

The respondents and the city marshal answered separately, and the answer of respondents, after denying substantially the allegations of the complaint, sets up as a defense that in an action brought by them against one Henry Curran, pending in the Marine Court, they sued out a warrant of attachment against Curran, which was delivered to the city marshal, who, by virtue thereof, attached the goods and chattels mentioned in the complaint, and took the same into his custody; that such goods and chattels were the property of said Curran, and that they in no wise took or converted the goods, except as plaintiffs in said action under the attachment, which required the city marshal to attach and safely keep so much of the property of said Curran, as would satisfy the claims of the defendants.

Upon the trial, the appellants gave evidence tending to show that the property in question belonged to them, and that the marshal (Stuart) attached and took it out of their possession ; that the attachment was delivered to the marshal by a clerk or employe in the office of the attorney for the respondents, who directed the marshal to attach the property quickly and take it away without putting a man in charge, and to take the instructions and directions of one Walker, who went with the marshal to the place of business of one of the appellants, and pointed out the goods and directed them to be taken. Walker was proved to be a clerk in the store of the respondents, who were merchants in the city. The taking of the goods was protested against by the appellants, and to some extent resisted, and the marshal told Walker that he had hotter go and see the respondents and tell them how the case stood, and that he required a bond of indemnity. Walker went away and was gone about half an hour and returned saying: “ Take the goods at all hazards,” and that the respondents would give any bond the marshal might require. Walker and the marshal thereupon nailed up the cases containing the goods and took them away against the remonstrances of the appellants. They were taken to an auction store where they have since remained. The appellants afterwards called upon the marshal for permission to appraise the goods. The marshal referred them to the attorney of the respondents, and they went to the attorney’s office and informed him that they had been sent there by the marshal, to get the privilege of appraising the goods. The attorney said to them, that the marshal had nothing to do with the goods, and that he would let them know afterwards whether they might appraise them. The respondents have not given any bond to the marshal, and were not shown to be connected with the goods otherwise than as above stated. The appellants proved also the value of the goods and then rested. The court, on motion of the counsel for the respondents, dismissed the complaint as to them, on the ground that there was no evidence connecting them with the trespass.

In Averill v. Williams (4 Denio, 295), it was held that an attorney in a suit in which judgment has been obtained has no authority, as such attorney, to direct the sheriff to levy upon the property of a third person, and that his directions, when property so levied upon is sold by the sheriff, to allow another party to bid off the same in the name of the plaintiff, were not sufficient to charge the plaintiff in an action for the conversion. It was doubtless upon the authority of this decision that the court below nonsuited the plaintiff. It was said in that case, that “ an attorney has very plenary power in the prosecution of a suit to judgment and execution, and, in these respects may bind and conclude his client.” It was held that after the issuing of execution, the attorney had no authority that would bind the plaintiffs to direct the sheriff upon what property it should be levied. In that case, it is to be observed, that the attorney had completely exhausted his general power by the recovery of the judgment and the issuing of the execution, and what was subsequently done could not properly be considered as an act in the course of conducting the suit. The court recognized tlm general rule, that an attorney bas power in the prosecution of a suit to judgment and execution, to bind and conclude bis client. And in Newberry v. Lee (3 Hill, 523), where an attorney issued an execution to tbe sheriff, it was held upon a number of English and American authorities, that where the attorney of record conducts a suit in such a way as to be liable to an action of trespass himself, his client is also liable. The process issued in this case at the suit of the respondent, from the Marine Court, was not an execution of judgment, but a provisional remedy, sued out during the progress of a pending cause. It was placed by a clerk or employe of the respondent’s attorney, in the hands of a marshal for execution, and the direction given by the clerk to the marshal, was in substance to seize and immediately remove such property as should be pointed out by Walker. There is no difficulty in treating the act of the clerk of the attorney as that of the attorney himself, especially after his subsequent ratification of the act by declining, as in effect he did, to permit the appellants to take an appraisal of the goods seized. All these acts of the attorney were done in the progress of an action, and before his plenary authority as such attorney had ceased by a final recovery, and it is questionable whether the respondents are not bound by his acts in that stage of the pending suit, upon the general principle alluded to in the case first above cited, and very distinctly declared in Newberry v. Lee. But it is claimed there is, in respect to the service of the attachment, a strong analogy between that process and the final execution of the judgment, so far as relates to property to be seized under it. It is true that the process in both instances directs the sheriff to take the property of the defendants, and cannot be said to authorize him to levy upon that of a third person; but it is not true that when the interlocutory process of attachment is sued out under the Code, that the general authority of the attorney to represent the plaintiffs in the action, and in all the proceedings taken and to be taken therein, has been exhausted, as it has after final judgment and execution. Hence there is some reason in the different- character of the processes for holding that the plaintiffs, in whose behalf such an attachment has been issued, are responsible for the acts of the attorney, and the question cannot be said to have been finally disposed of by Averill v. Williams (ubi supra). There was, however, in this ease additional evidence tending to connect the respondents with tlie alleged trespass. Walker was acting alone in pointing out the goods, in directing the levy and in ordering the marshal to take and remove them at all hazards. He was brought into immediate connection with the marshal by the attorney of the respondents. He claimed to act as their agent, and he was proved to have been at that time, and to have continued in the employ of the respondents as a clerk in their store. It seems to us under these circumstances, taken in connection with the pleadings in the action, in which the respondents justified under the attachment and averred that the goods seized were the property of the defendant therein, the court ought to have held that there was sufficient to justify the denial of the motion for nonsuit, and to require the respondents to answer and explain the facts and circumstances tending to connect them with the transaction.

We think, therefore, that the complaint was improperly dismissed, and that the judgment should be reversed and a new trial granted, with costs to abide the event.

Daniels, J., concurred.

Beady, J.:

I concur in the result, because I think that there was some slight evidence of ratification.

Judgment reversed, new trial ordered, costs to abide event.


text:
    JOHN S. McLEAN, Executor, etc., of JOHN McLEAN, Deceased, Respondent, v. ALPHEUS FREEMAN, Executor, etc., and WILLIAM T. McLEAN and others, Appellants.

      Will — Remainder'—limited upon death of life benefieia/ry — when it takes effect, , though life benefieia/ry die before testator — Lapse.
    A testator by bis will, after making certain legacies, devised one-fourtb part of Ms estate to his son John S., one-fourth part to his daughter Mary, one-fourth part to trustees for his son William T., and one-fourth part in trust for his son Alexander, the trustees being required to pay over to the two sons the rents, issues and profits of their respective shares, and being authorized to advance any portion or the whole of said shares to either of them. The will then provided that in case of the death of either of his two sons, William or Alexander, “ while the whole or any part of the said shares so held in trust for them respectively shall continue to be so held in trust,” leaving lawful issue, the share of the one so dying, should go to such issue, and in case there were no issue, to his daughter Mary.
    The son Alexander died before the testator. In an action to obtain a construction of the will, held, that it was the intention of the testator to dispose of his whole estate and to die intestate as to no portion thereof, and that the gift to his daughter Mary was not defeated by the death of the son during his lifetime.

      Semble, that in any event there would be no lapse, as the gift being direct to the executors, the estate vested in them for the purpose of carrying out the intention of the testator, by delivering the same to the living object of his bounty.
    Appeal from a judgment entered upon the trial of tbis action bj the court without a jury.
    The action was brought to obtain a judicial construction of the last will and testament of John McLean, deceased.

      Thomas L. HuUba/rd and' E. W. Sheppcvrd, for the appellants.

      James Ernott and J. Langdon Ward, for the respondent.-
   Davis, P. J.:

This action is brought to obtain a construction of the will of John McLean, deceased. The testator made his will on the 10th day of April, 1861. At that time he had four children living, to wit: John S., William T., and Alexander W., his sons, and Mary J. Halsted, his daughter. After making several provisions unimportant to the question here presented, he gave and devised to his son John S. McLean one-fourth part of all his remaining real and personal estate, and to his daughter, Mary J. Halsted, one other fourth part. He then gave to his executors one-fourth part of his estate, in trust for his son William T. McLean, and the remaining fourth part in trust for his son Alexander W. McLean. These trusts were several, and each authorized the trustees to receive the rents, interest and income and apply the same to the use of the sons, respectively. The testator then declared that he placed the two last mentioned shares of bis estate in trust for the benefit of bis sons, respectively, from an anxiety lest from their youth and inexperience they might waste the samé if the said shares were given to them or placed at their disposal absolutely.” He therefore directed that if the trustees should, at any time in .the lifetime of either of his sons, be satisfied that he would make a prudent and proper use of the estate so held in trust for him, they should be-authorized and empowered to convey or assign the whole or any part of the estate so held in trust to such son, in their discretion; and to repeat such conveyance or assignment as often as they might think proper until the whole should be so conveyed and assigned. The will then contains the following provision :

Tenth. In case of the said death of either of my said sons "William or Alexander, while the whole or any part of the said shares so held in trust for them, respectively, shall continue to be so held in trust, and leaving lawful issue him surviving, then, and in such case, I give, devise and bequeath to such lawful issue the said share, or such part thereof as may be then held in trust for the parent of such issue immediately upon his death. And in case of the death of either of my said sons William and Alexander, as above mentioned, without leaving lawful issue him surviving, then, and in such case, I give, devise and bequeath the said share, or such part thereof as may be held in trust for the one so dying, at the time of his decease, immediately thereafter, to his then surviving brothers and sisters; and the issue of any of them who may have previously died leaving issue; such issue, in all cases, to take the share or part their parent would have taken if he or she had been then surviving.”

The testator afterwards executed a codicil to his will, which, so far as it is material to the questions now presented, reads as follows :

Third. I hereby revoke so much of the tenth section of my said will as gives, devises and bequeaths the share of either of my sons William and Alexander, in case of his death without leaving lawful issue, to all his surviving brothers and sisters, and in lieu, and instead thereof, I hereby give, devise and bequeath the share of each of my said sons so dying without leaving lawful issue, or so much thereof as shall be held in trust for him at the time of his decease, to my daughter, Mary J. Halsted, alone, and to her heirs and assigns forever, to her sole and separate use; and in case of the death of the said Mary before the death of either of my said sons William and Alexander (who shall so die without lawful issue), then, and in that case, I give, devise and bequeath to the lawful issue of the said Mary, who shall be then living, the said share so held in trust for my said son, who shall so die without issue, or all such parts of said share as may be held in trust for him at the time of his death. I hereby ratify and confirm my said will in all respects, except so far as the same is revoked or altered by this codicil.”

Alexander W. McLean, one of the sons, died June 10, 1871, unmarried, and without issue. The testator survived him until January 24, 1873, when he died, leaving him surviving his widow, his daughter, Mary J. Halsted, and his two sons, John S. and William T. McLean. The will has been duly admitted to probate, and the plaintiff, John S. McLean, has alone qualified as executor. Pending this action the widow of the testator died, and Alpheus Freeman, his executor, was substituted.

The question in the case is, whether the testator died intestate as to the one-fourth part of his estate given and devised in trust for his son Alexander. It is very plain from the whole will, that the testator intended thereby to dispose of the whole of his property, and to die intestate as to no part of it. He meant to divide his property equally among his four children; but, in respect to the shares of his sons, William and Alexander, he intended, for the reasons which he assigns in the will, to place them where they would certainly enjoy during their respective lives, the entire income thereof, with power to the executors to make over to either of them the body of the trust, whenever, in their judgment, the reasons which led him to create it should cease to exist. But, as the estate of either of his sons might remain in trust during the whole of his life, it was essential in order to carry out his intention of fully disposing of all of his estate, to make a disposition of the remainder after the life estate of either of the sons should cease. He therefore provided that in case of the death of either of his sons, while the whole or any part of the share held in trust for him should continue to be so held in trust, leaving lawful issue him surviving, such property should, immediately upon his death, go to such issue. And in case of the death of either of his sons without leaving lawful issue him surviving, then that the share, or such part thereof as might be held in trust for the one so dying, at the time of his decease, should immediately thereafter go to his surviving brothers and sisters, and the issue of any of them who might have previously died leaving issue. The testator subsequently, by the codicil above mentioned, revoked so much of the tenth section of Iris will as bequeathed the share of either of his said sons, in case of his death without leaving lawful issue, to all his surviving brothers and sisters, and instead thereof, gave, devised and bequeathed the share of each of his said sons- so dying without leaving lawful issue, or so much thereof as should be held in trust for him at the time of his decease, to his daughter, Mary J. Hal-sted, alone, and to her heirs and assigns forever, to her sole and separate úse.

The principal question in the case is, whether the testator, by using certain language in the creation of the trust, designed to guard against the inexperience and improvidence of his son Alexander, has defeated his manifest intention of disposing fully of the share intended for that son. For it is well settled that if the estate had been given to Alexander for life, and then to his issue, or, in default thereof, to Mrs. Halsted absolutely, it would not have lapsed by the death of Alexander in the lifetime of the testator, but would have vested immediately in Mrs. Halsted upon the death of the testator. It would, in that case, be an executory gift to Mrs. Halsted, limited to take effect upon the death of Alexander without issue; and it would be of no consequence that, prior to the decease of the testator Alexander had died, because the secondary object of his bounty would take directly and immediately upon the death of the testator by operation of the will. (Downing v. Marshall, 23 N. Y., 366; Norris v. Beyea, 13 id., 273; Mowatt v. Carow, 7 Paige, 330; opinion of McCoon, V. C., id., 331, and cases cited.) The interposition of a trust for the benefit of Alexander seems to us to make no difference in the principle. The death of Alexander has rendered the trust wholly unnecessary; and as he died without issue, Mrs. Halsted takes the estate directly by thé gift of the testator, and not through the executors as trustees.

It is the sharé of Alexander that is given to her, under the facts of the case, and not a portion of the share diminished by the partial execution of the trust. She takes the whole because the intention of the testator was to give her the whole in case the share had not been diminished by the operation of the trust in favor of Alexander. But it is argued that, in order to make the gift to Mrs. Halsted operative, under the language of the will, the death of Alexander must have occurred while the whole or some part of his share was held in trust for him by the executors. Or, in other words, that nothing was given over to the issue of Alexander, or in default thereof, to Mrs. Halsted or her issue, unless the trust first came into operation before the death of Alexander and he should subsequently die. This argument depends altogether upon the force to be given to the words in the tenth clause — while the whole or any part of said shares so held in trust for them respectively shall continue to be so held in trust.” The will is now to be read as though the third clause of the codicil had been originally contained in the will itself. It would then have read, so far as it affects Mrs. Halsted, in these words :

Tenth. In case of the death of either of my said sons while the whole or any part of the said shares so held in trust for them, respectively, shall continue to be so held in trust, and leaving lawful issue him surviving, then, and in such case, I give, devise and bequeath to such lawful issue the said share, or so much thereof as may then be held in trust for the parent of such issue, immediately upon his death. And in case of the death of either of my said sons, as above mentioned, without leaving lawful issue him surviving, I hereby give, devise and bequeath the share of each of my said sons so dying without leaving lawful issue, or so much thereof as shall be held in trust for him at the time of his decease, to my daughter, Mary J. Halsted, and to her heirs and assigns forever, to her sole and separate use.

The subject of disposition in this provision is the share of Alexander. The testator, doubtless, contemplated that Alexander would survive him, and that his share would go into the trust; and he used language which is expressive of that contemplation, but which is also entirely consistent with his manifest intention to dispose of the whole of the share that should remain after the death of Alexander. In one event be meant to give it to his issue, in the other (in default of issue), he meant to give it to his daughter Mrs. Halsted. The language of the provision was not used for the purpose of specifying a period within which Alexander must die in order to make the gift over to his issue, or to Mrs. Halsted, operative, but it was evidently used with regard to the power that had been conferred upon the trustees to dispose, by conveyance or assignment to Alexander, of the whole or any part of his share, and to limit the quantum to be taken, if Alexander should die while the trust remained not wholly executed, to the amount of the share that should then remain undisposed of. If this be not the true construction, then had Alexander left any children at the time of his death before his father, they would have taken nothing under the will. This, we think, could not have been the intention of the testator. He did not intend to disinherit the children of Alexander in any event, but, on the contrary, he intended to provide for them if the share of Alexander was not otherwise exhausted at his death, by giving it absolutely to such children; and the same reasoning applies to the gift to Mrs. Halsted. If the idea had presented itself to the testator’s mind that nothing was to be given to the issue of either of his sons, or in default of such issue to Mrs. Halsted, unless the estate should first go into the trust he created for the benefit of his sons, it would, we think, have been repelled by him as contrary to his intended disposition of his property; and the whole difficulty in construing his will in accordance with what seems to us to have been his intention, has grown out of his desire not to interfere with the power with which he clothed his executors to make over the whole or any part of their shares, absolutely to either of his sons during their lifetime; and to consummate his wish that what should be given to the issue of his sons, or to his daughter, should only be the balance of the fund undisposed of by the trust, in case the trust became operative.

If this construction of the will do not prevail, it would seem to be the duty of the court to hold that the share given to Alexander vested in the executors, as trustees, notwithstanding the death of the first beneficiary; and that they would take, there being no lapse in consequence of the gift being directly to them, and not to a deceased person, for the purpose of carrying out the intentions of the testator, by delivering the share to the living object of his bounty. Manifestly, it would have been their duty, had Alexander survived his father and then died, to deliver over the share, in complete execution of their trust to Mrs. Halsted, in accordance with the provisions of the will. For a trust of this character ought not to fail for the want of a first beneficiary, where it is plain that a second one was intended by the testator to take the whole of the trust estate, or such part of its eorjpus as should remain undisposed of, and where the trustees would not have fully discharged their duties, had the first beneficiary survived the testator, without carrying out such intention. We think, however, the decision of the case should stand upon the construction we have given to the will and codicil.

The judgment should be affirmed, but, under the peculiar circumstances of the cáse, the costs of the appeal of all parties should be paid out of the fund.

Daiiiels and Beady, JJ., concurred.

Judgment affirmed, costs of appeal of all parties to be paid out of the fund.


text:
    JAMES BIGLER and others, Respondents, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellants.

      Contract with city of New York — power of dxpwrtment of docks to extend — right of, to consent to receive other materials than those specified — Inspection of materials — • certificate — effect of

    After due advertisement for proposals, as required by statute, the plaintiff entered into a contract with the city of New York by which he agreed to furnish plank, timber and logs for the use of the department of docks, upon requisitions to be made by it. The contract was dated July 29, 1873, and was to^ontinue in force for the term of one year. In an action to recover for materials alleged to have been furnished under this contract, it appeared that a portion of them were furnished upon requisitions made after the expiration of the year,

      Held, that the department of docks had no power by mere requisitions, to continue the contract in force after it had expired by its own terms, and that no recovery could be had thereunder for the materials furnished in compliance with such requisitions.
    The contract provided that all the materials were “ to be subject to the inspection of the superintendent of repairs and supplies of the department of docks;” there was no provision therein rendering his certificate conclusive upon the parties, or making it the basis for payments to be made under the contract.

      Reld, that the only effect of this provision was to subject the materials furnished under the contract to his inspection and approval, and that neither party to the contract was concluded thereby.
    Held, further, that under the said contract the department of docks had no power to make requisitions i'or materials differing substantially from those specified in the contract, and that the fact that such materials were furnished to, and used by the said department under requisitions duly made therefor, would not authorize the contractor to recover therefor under the said contract.
    Where contracts are made by the city upon sealed bids and proposals under the statute, specifying with particularity the articles to be delivered, there is no power in any board or officer of the corporation to. receive in compliance therewith inferior or less valuable articles, under the pretext that they will answer the purposes of the city as well or better than those specified in the contract.
    Appeal from a judgment in favor of tbe plaintiff, entered upon the verdict of a jury.
    This action was brought to recover the value of certain materials furnished to the department of public works under a contract, entered into between the plaintiff and the defendant. The case has already been before the General Term, where a new trial was granted on the ground that evidence offered on the part of defendant had been improperly rejected. (13 S. G. R. N. Y. [6 Hun], 241.)

      Wm. 0. Whilmey, for the appellants.

      Enoch L. Fancher, for the respondents.
   Davis, P. J.:

The contract upon which this action is brought is admitted by the answer. The answer denies, however, that the materials alleged to have been furnished under the contract were worth the sum charged therefor, as alleged in the complaint, and denies that tbe balance claimed by tbe plaintiffs is due upon tbe contract. It further alleges that tbe materials furnished were not merchantable, but were inferior, and unfit to be used for tbe purposes mentioned in tbe contract; and that plaintiffs, with full knowledge of such facts, fraudulently procured tbe certificates set forth in the complaint. Tbe answer further alleges ■ that, by tbe terms of said contract, tbe kind and size of tbe timber and supplies to be furnished by the plaintiffs to tbe defendant were specified, and that tbe said plaintiffs did not furnish tbe timber required .by said contract, neither as to size nor quality. It then alleges, by way of counter-claim, that the plaintiffs furnished inferior timber- and supplies, and fraudulently caused the same to be certified to the defendants as being the kind called for by said contract; and that, by reason thereof, the defendants have been damaged, and inferior and unfit materials have been placed in their docks and piers, through the failure of the plaintiffs to perform their contract, and the fraudulent representations made by them in reference to said materials, in a sum greater than the amount claimed in this action, which damages they ask to recoup. This answer, we think, amongst other things, fairly puts in issue the question of the performance of the contract, in addition to setting up the alleged defense of fraud. The contract bears date the 29th of July, 18J3, and, by its terms, was to continue in force for the period of twelve months from the date of the execution thereof. It was executed, on the part of the city, by the department of docks, and was made, as appears in the case, after advertisement for sealed proposals, as required by the, statute, for the delivery of the materials specified in the contract. The plaintiffs, by the contract agreed to furnish, at their own proper cost and expense, the materials specified therein in such quantities, and at such places in the city of New York, as might be required by the party of the first part, and on their default to furnish such materials when called for by requisition under the contract, then the city was to have the right to purchase in open market the materials called for in such requisition, and to deduct the excess of cost from any money due to the plaintiffs from the city. The contract also contained this provision: “All materials delivered by the party of the second part to be subject to the inspection of the superintendent of repairs and supplies of the department of docks.” It appeared' in evidence that, daring the period covered by the contract, the department of docks made requisition upon the plaintiffs for large amounts of timber and lumber, in conformity to the specifications of the contract as to size, length and kind of timber or lumber, and that the materials so called for were delivered upon such requisitions by the plaintiffs. It also appeared in evidence that the department of docks made requisitions, from time to time, upon the plaintiffs for the delivery of largo quantities of lumber and timber which did not conform to the specifications of the contract, and that these were also delivered by the plaintiffs. The plaintiffs showed that of the amount of materials so delivered the superintendent of repairs and supplies certified various bills to be correct, amounting in the aggregate to about $4,000.. Some of these bills were delivered upon requisitions of articles within the specifications of the contract, and others were articles not within such specifications. The plaintiffs also showed the delivery of a large number of bills of materials upon requisitions of the department of docks, amounting in the aggregate to about $82,000, which were not certified by the superintendent of repairs and supplies, but which were certified, in part by the engineer-in-chief of the department of docks, and in part by his assistant, and in part by some other officer or employe of that department. These last named officers simply certified that the quantity named in each bill was correct. Each of the various bills presented by the plaintiffs referred to the requisitions upon which the materials therein mentioned were delivered, and the certificates, so far as those of the superintendent of repairs and supplies are concerned, must be held to refer to such requisition, and to certify that the bills are correct in respect to their conformity to the requisitions ; and the certificates of the other officers, that they are correct in respect to the quantity delivered and charged in the bills under such requisitions.

The only question submitted to the jury by the learned court was, whether there was fraud in the giving of these certificates, and any collusion between the officers of the dock department and the plaintiffs; and the court held, in substance, that if there was not such fraud or collusion, the plaintiffs were entitled to recover by virtue of the certificates above mentioned.

The court was requested by the defendants’ counsel to charge that under the contract declared on in this action, the plaintiffs were required to furnish merchantable timber and lumber, and if they failed to do so this action cannot be sustained, and the verdict must be for the defendant.

Upon this question the court ruled as follows: “ In regard to that proposition, the certificates required by the contract having been given, unless you can impeach them for fraud, you cannot raise the question whether the lumber was or was not merchantable,” and to this ruling the defendants excepted. The court was also requested to charge that if timber or lumber, less than the size called for in the contract, was furnished by plaintiffs to defendants, the plaintiffs cannot recover for it in this action. To which the court said: The ruling in regard to the certificates covers that also for the same reason; ” and to this the defendants’ counsel excepted. The court was also requested to charge that the bills and requisitions in evidence are only prima facie evidence of what was done, and are subject to contradiction and explanation. The court said : “ In regard to that, I will say that the certificates are prima facie evidence of what was done, and absolute evidence of what was done unless impeached for fraud; ” and to this the defendants’ counsel excepted. There were also large numbers of requests to charge in respect to the delivery of the timber and lumber less in size and length than that specified in the contract, to all of which the court refused to charge as requested, and exceptions were taken, and in answer to one of which the court said: I intend to be understood as distinctly charging that the city having taken and accepted this lumber, and this lumber having been put into its piers, they are liable for the contract prices.” The court was requested to charge also that the dock commissioners, after making the contract in suit, had no power or authority to accept as deliveries upon the contract, timber of shorter average length and smaller sizes than those called for by the contract. To which the court said : I will charge that, but I say, as I have all along said, that the certificates cover that difficulty, if given in good faith.” The defendants’ counsel excepted. The counsel requested the court to charge, in respect to the bills put in evidence, which have no certification by the superintendent of repairs and supplies, that the plaintiffs could not recover for them under the contract; upon which the court ruled, that it was competent for the defendants to waive certificates by the superintendent of repairs and supplies, and to delegate the power to certify to the engineer-in-chief or engineer in charge of the works, and if the jury believed that the enginéer-in-chief or engineer in charge of the work, or whoever certified as to the bills, gave his signature in good faith, and that the defendants accepted the lumber and put it into their docks, they are precluded just as much by his certificate as if the certificate was given by the superintendent of repairs and supplies.” The defendants’ counsel excepted to the refusal, and also to this ruling. At the close of the charge, the defendants’ counsel called the attention of the court to the bills not certified by the superintendent of repairs and supplies, and to the fact that the certificates on those bills were simply that the quantity is correct; and the court further charged that if there was no other certificate, if the officers of the corporation passed the lumber and certified it without fraud, the city is bound by the certificates. To this charge the defendants excepted. The court also charged the jury that it was competent for the dock department, as officers of the corporation, to waive the provision which subjected the materials to the supervision of the superintendent of repairs and supplies, and to delegate that power to the chief-engineer in charge.

It appeared by the requisitions and bills produced, that a portion of the materials were delivered in the latter part of August, 1874, about a month after the expiration of the contract, and that the materials so delivered did not conform to the specifications of the contract. These bills and the vouchers relating thereto were objected to by the defendants on the ground that the transaction occurred after the expiration of the year limited by the contract. The objection was overruled, the evidence was received under the exception of the defendants, and the amount of such bills are included in the verdict. In respect to the last named exception, we think it very clearly well taken; after the expiration of the year the dock commissioners had no power, by mere requisition, to continue the contract; it had expired by its own'terms, and subsequent deliveries of materials in conformity to its specifications could not in our judgment be recovered for in an action upon the contract. Much less would the right to recover them under the contract exist, if they were articles not conforming to the contract. That they were of this latter character is readily seen by reference to the requisition on which they were delivered. For instance, requisition number 4,643, which was dated September Y, 18Y4, was for 10,558 feet, ten by ten yellow pine. The contract provides only for yellow pine timber twelve inches square, averaging forty feet long, a different, and, as the evidence tends to show, more valuable article. In respect to the items covered by the objection referred to, we think the ruling of the learned judge was erroneous. The dock commissioners could not in that manner extend the contract without plainly violating the law regulating the system of contracts.

The contract in this case was drawn with such extreme looseness as to open a wide door for collusion and fraud. Upon the question whether there was or was not collusion or fraud there was conflicting evidence, and the learned court submitted that question to the jury whose verdict in favor of the plaintiffs must be regarded as disposing of it. The only remaining question arises upon the rulings and exceptions thereto, in respect to the force of the certificate given by the superintendent of repairs and supplies, and the certificates given by the engineers and various other officers, and of the authority of the dock commissioners to clothe the last named officers with power to certify, and of the effect of their action in having received and used the materials, furnished upon requisitions, in the construction of docks. The provision of the contract is, that all materials delivered are to be subject to the inspection and approval of the superintendent of repairs and supplies. There is no provision that his certificate shall be conclusive upon the parties, and none that such certificate shall be the basis for payments to be made under the contract.. The language does not confer upon the officer any power to alter the contract in any part whatever; it simply subjects the materials to be delivered under the contract to his inspection and approval, and does not conclude either party by such inspection and approval.

In Glacius v. Black (50 N. Y., 145), the language of the contract was this : The materials to be furnished shall be of the best quality, and the workmanship performed in the best manner, sub-jeet to the acceptance or rejection of Edward Wall, architect, and all to be in strict accordance with the plans and specifications which are signed by the parties of the second part, and form part of this contract.” The architect also had power to reject any part of the work or materials, and in such case the builders were to remedy the defects. The court held that the acceptance by the architect under the contract was not conclusive, but would be important in establishing that the work and materials were in compliance with the contract, but would not be sufficient to sustain a recovery if it appeared that the contract had not been substantially performed; and the court distinguished the case from Wyckoff v. Meyers (45 N. Y., 143), by the fact that in the latter case the contract provided that payment should be made upon the certificate of the architect and that disputes respecting the construction and meaning of the plans and specifications should be submitted to the architect, whose decision should be conclusive upon the parties ; and the court cites with approval the case of Bird v. Smith (64 E. C. L. R., 785), where a quantity of iron rails of certain weights, shapes and dimensions were alleged to have been inspected certified and approved by an agent of the plaintiffs, as provided in the contract, and it was held, on demurrer, that this averment was not conclusive against the defendants.

The provision of the contract in this case, as we think, simply subjects the materials to be delivered under it to the inspection and approval of the officer named; and while his certificate would be prima facie sufficient, it cannot be held to conclude either party, nor be an absolute prerequisite to payment by the defendants; for if the plaintiffs delivered materials upon requisitions in exact conformity to the contract, there seems to be no doubt that they would be entitled to payment therefor if accepted, although not actually inspected and approved by the superintendent, for such certificate is not made a condition precedent to payment.

If these views be correct it follows as a matter of course, that the certificates such as they were, hy the officers delegated to that end by the department, are by no means conclusive upon the city. They may properly be regarded as prima facie evidence, but they were not entitled to the conclusive effect given them by the learned judge at the trial. And it follows that the plaintiff was entitled to recover, if any thing remained due (the jury having found in his favor on the question of fraud), for all articles delivered in substantial compliance with the provisions and specifications of the contract. His contract was not broken by any failure to deliver on his part, so as to absolutely preclude a recovery under the general rule that contracts not performed according to their terms cannot be enforced by an action at law, because the contract is in such form that it was fully performed on his part whenever he delivered upon a requisition made under it, such materials as are specified in the contract; and although the time of payment is not specified in the contract, yet by its true construction we think the right to demand payment for the articles delivered upon the requisitions which conformed to the contract, arose whenever such delivery was completed.

But the most important question in the case is, whether, under such a contract, the power existed on the part of the department of docks to make requisitions which departed from the specifications of the contract and were not fairly covered by its terms. If this be so, then all the protection to the city provided for by the statute requiring advertisement for sealed proposals, and contracts with bonds and security for their performance, is of no substantial value, for, under such a contract, the department might accept the bid of “A.,” at a fixed price for the articles specified for competition in the advertisement, and then under his contract for the delivery of such articles, permit him by requisition to deliver those much inferior in quality and value. This case itself illustrates the danger of such a power. One of these specifications, for instance, is “ southern yellow-pine timber, twelve inches square, averaging forty feet long, forty dollars per thousand.” If under that a requisition may be made for yellow pine lumber six inches square and ten or twenty feet long, it will entitle the contractors to forty dollars per thousand for that kind' of timber. It is manifest, since that article would be of far less value than the price stipulated for the different material, that the contractor could be greatly benefited and the city injured, at the option of the department. It appears in the case that the price of timber and plank materially differs, depending upon its length, and that a quantity that averages forty feet in length and twelve inches wide, is worth much more in the market than if it were twenty or twenty-five feet in length and of less width. It is, however, true, as was said by the learned judge, “ that the dock commissioners had the right to order timber between the extreme limits specified in the contract as to both the length and width of the plank.” The contract, in respect to many of the materials is an elastic one. For instance, under the first specification, which is “ white pine plank to average forty feet long, five to six inches thick, twelve inches and upwards wide, at forty-two dollars per thousand,” planks averaging forty feet long and either five or six inches thick, or between those thicknesses, and of any width above twelve "Inches could be properly required. But where the kind and size in all respects are definitely prescribed, a requisition could not properly be made for a substantially different, inferior and less valuable article. The contractors would not be bound to obey such a requisition, and would not violate their contract in refusing to obey it. They must be held to know that such a requisition is not in conformity to the contract; and by any delivery upon it they are simply obeying the requisition but not fulfilling the stipulations of the instrument under which it purports to be made. Immaterial or slight variances are of no importance; but material differences, which largely affect the value of the articles, are pregnant with all the mischiefs which the law regulating contracts by advertisement and sealed proposals, was enacted to prevent.

But it is said that the articles furnished under requisitions which were substantial departures from the contract, in this case, were better adapted to the construction of some of the docks than the articles specified in the contract. This was doubtless so ; but it is no answer, for while they may be better adapted to narrow docks, yet it is manifest they are far less expensive, and therefore should be obtained under proposals and contracts which secured them at their real value, and not under requisitions which accepted them in lieu of something of much higher value, stipulated for in the con-tract itself. We think, therefore, that neither the dock commissioners nor any of their subordinates had any power to require or accept, under this contract, any materials which substantially differed from' the provisions of the contract, to the prejudice or injury of the city in respect to price.

In this case it will be easy, upon the papers presented upon another trial, to separate the articles fairly within the contract and those clearly outside of it. The former must be paid for by the city under the contract itself; the latter cannot be recovered in this action, whatever other remedies the plaintiffs may have against the city.

We feel bound to hold it to be sound law that, if contracts are made by the city upon sealed bids and proposals, under the statute, specifying with particularity the articles to be delivered, there is no power in any board or officer of the corporation to let down the contract, in material respects, to inferior or less Valuable articles, under the pretext that they will as well, or better, answer the purposes of the city. To permit the contrary rule to prevail would be injurious and unjust to all bidders for contracts, provocative of collusion and fraud between the officers and the successful bidder, and pecuniarily injurious to the city. It would virtually annul the contract system, by destroying its most important safeguards, at the option of negligent or corrupt officials.

For these reasons we think the judgment in this case is erroneous, and must be reversed and a new trial ordered, with costs to abide the event.

DaNiels, J., concurred; Beady, J., dissented.

Present — Davis, P. J., Beady and Daniels, JJ.

Judgment reversed, new trial ordered, costs to abide event.


author: Bbady, J.:

text:
    SIMEON J. AHERN, Appellant, v. WILLIAM H. GOODSPEED and another, Respondents.

      Usmy — Promissory notes — sale of by broker —• principal bound try representay tions of broker.

    Where the maker of a note places the same in the hands of a broker to he sold by him, without any restrictions as to the manner in which such sale is to be made, he is bound by the representations made by the latter to a bona fide purchaser, to the effect that the same is good and valid business paper; and he cannot maintain an action to have the note canceled, on the ground that it never had any legal inception until it came into the hands of the purchaser, by whom a greater discount was reserved than is allowed by law.

      Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court without a jury.
    The action was brought to have three promissory notes made by the plaintiff to his own order adjudged void, on the ground of usury, and to have certain shares of stock transferred by him as collateral thereto surrendered.

      M. W. Dvovne, for the appellant.

      R. H. Hwntly, for the respondent.
   Bbady, J.:

The plaintiff seeks to be relieved from the burden of his notes, held by the defendant Goodspeed, and tainted, as he alleges, with usury, and void; and his right to success depends upon the power of his brokers to make the representations which were made, that the notes discounted were business paper. The notes were given to Bound & Company to dispose of. They were to be sold, and the proceeds applied to the payment of the debt due by him to them. They were note brokers. It was their business — in part, at least — to sell notes. When the notes were delivered, it must be assumed, because it is so found, that nothing was said authorizing them to make any representation, but they were empowered to sell. They did sell. The sales were approved of on the terms stated on the memoranda of sale, and the plaintiff had the benefit of the money realized. There were three notes, one of which was for $9,500. It was the first taken by the defendant, and was sent to him by the brokers in place of the paper of a Mr. Adams whose notes he had previously bought. He had heard of the plaintiff from his brokers. They mentioned the plaintiff’s name when, in an interview several days before the note mentioned was sent, the defendant was negotiating for notes. In that interview the defendant stated what he wanted to purchase, namely, undoubted business paper, and the brokers could not fail to have understood-it. After this revelation the name of the plaintiff in connection with notes was mentioned. When, therefore, the plaintiff’s note was received, the defendant had the right to assume that it was good business paper, and therefore subject to barter. This impression was confirmed when, subsequently, in his communication with the brokers, they so substantially declared it to be. The other notes were accepted upon the express understanding, accompanied by representation of the brokers to that ■ effect, that the notes were business paper. It may be here suggested that the notes were quasi business paper. They were, in fact, given to pay the brokers who were creditors of the plaintiff, and to whom they were delivered for that purpose. It is true that the arrangement authorized the brokers to sell them at a discount of twelve per cent, and that the plaintiff was to submit to the charge, but the notes in their inception were to be employed to pay the debt due to the brokers, and were actually used for that purpose. The money received was so appropriated, and the whole transaction ratified by the acquiescence of the plaintiff. Without, however, pursuing this suggestion further, and looking at the othef circumstances disclosed, let us see what must be the result. The note of $9,500 was given to the brokers to sell, and they were not restricted by any instructions, except so far as the rate of discount agreed upon may be regarded as bearing upon that subject, and which' is not material. The interview between the defendant in reference to the purchase of notes must, in justice, be regarded as a part of the transfer of that note. It was then distinctly stated, and understood between the brokers and the defendant, that business paper alone was to be the subject of barter. The defendant purchased nothing else from them. He was, therefore, entirely justified in relying upon that interview, and in assuming that the note sent him was in accordance with his demand. If there were any thing on the paper itself which would per se determine the question, he might be subjected to the rule of omeat emptor, but there was not, and the connection of the note with the understanding mentioned was the natural and obvious line of thought and action. If the transaction was not to be such as agreed upon, it was the brokers’ duty so to advise the defendant. It should, therefore, be held that the representation was made that the note was business paper. If it be otherwise declared, then the brokers would be allowed to do indirectly what they could not do directly, and a fraud would be sanctioned. This result places the note of $9,500 on a par with the others, as to which the representation that they were business notes was directly made. The plaintiff was bound by the representations thus made, and he is estopped from denying them under the circumstances, unless there was no power residing in the brokers to bind him by what they said. The notes, as already suggested, were placed in their hands for sale or discount, and whatever was within the sphere or scope of that employment — whatever was to be done to make it successful — was clearly delegated to them to perform. The broker could not be expected to sell notes or have them discounted, by silently presenting them to a purchaser. Tie must be expected to know something of them, and what he assumes to know legitimately connected with them, and necessarily a part of them, if stated by him, is as binding as if uttered by the principal. The latter has placed the broker in a position to do wrong, and if the trust be violated, the innocent dealer must be protected. The choice of the medium rests with the seller, and he must take the consequences. Hence an agent having power to sell goods, without express directions as to the mode, may sell them by warranty (Andrews v. Kneeland, 6 Cow., 854; Nelson v. Cowing, 6 Hill, 336; Story on Agency, § 137; Ferguson v. Hamilton, 35 Barb., 427); and hence, when the acts of the agent will bind the principal, his representations respecting the subject-matter will bind him; if made at the same time, they constitute part of the res gestee. Hence, also, the rule that an agent employed to sell a note will bind his principal, even by a false representation. (Story on Agency, §§ 134, 137 ; Elwell v. Chamberlain, 2 Bosw., 230; Ferguson v. Hamilton, supra.) The last authority cited, which is an elaborate consideration of the subject and the cases bearing upon it, presents facts similar to those shown in this case, and is directly in point. All these principles are the legitimate offspring of the selection of the representative, who is clothed with the means of doing wrong, and for whose acts the principal should be held responsible in equity and .good conscience, when done within the scope of his agency. There are no other questions involved in this appeal, and the judgment should therefore be affirmed, with costs.

Davis, P. J., and Dahiels, J., concurred.

Judgment affirmed.