text:
    Margaret Wells, App’lt, v. Francis Alexandre et al., Resp’ts.

      (Court of Appeals, Second Division,

      Filed December 1, 1891.)

    1. Contract—Construction op.
    Plaintiff’s agent, by letter, offered to furnish defendants’ three steamers, naming them, with coal for the year 1888, at $3.05; also to furnish any other of defendants’ steamers at the same price, which offer was accepted, and plaintff furnished the coal until June, when defendants sold their steamship line, and the steamers continued to operate under the control of the purchaser, using a great deal of coal. Held, that the correspondence constituted a contract that plaintiffs would furnish and defendants take a quantity of coal to be measured by the requirements of the three steamers for the year ensuing.
    2. Same.
    The fact that the defendants deemed it best to sell the steamers did not relieve them from the obligation to take the coal which the ordinary and accustomed use of the steamers required. The provisions of the agreement did not admit of a construction that it was to terminate in the event, of a sale.
    (Haight, J., dissents.)
    Appeal from a final judgment of the general term, superior-court of the city of New York, entered on an interlocutory judgment, which reversed an interlocutory judgment of the special term of said court, sustaining plaintiff’s demurrer to one of the defenses set forth in the answer.

      George B. Adams, for app’lt; Lewis Cass Ledyard, for resp’ts.
   Parker, J.

The complaint alleges a contract whereby defendants agreed to purchase from the plaintiff, at a specified price, all coal necessary for the use of certain steamships, of which defendants were the owners, daring the year 1888.

The case was determined upon the pleadings, the plaintiff having demurred to the second defense of the answer. This defense set forth the facts in relation to the alleged contract, and the question involving its construction is presented by the demurrer. It appears that on and prior to January 4, the defendants were the owners and charterers of certain steamships, and were engaged in the business of operating a steamship line between New York and certain ports in Cuba and Mexico, and that the steamers City of Alexandria, City of Washington and Manhattan, formed a part of such line.

December 31, 1887, the plaintiff addressed the following communication to the defendants:

Messrs. F. Alexandre & Sons, New York:

“ Cents—We propose to furnish your steamers City of Alexandria, City of Washington and Manhattan with strictly free burning pea, delivered alongside pier 3, North river, for the year 1888, commencing January 1st to December 31st, for the sum of three dollars and five cents per ton. We also agree to furnish any other steamers of your line with the same coal and at same price at any time you wish. If through any cause we are unable to deliver pea coal, we will deliver you other sizes at an equitable adjustment of price.

“Yours very respectfully,

“Jas. K. Wells, Agt."

To which the defendants on January 4, 1888, replied as follows:

Mr. Jos. K. Wells ;

“ Dear Sir—We beg to accept your offer of 31st ult., to furnish our steamers City of Alexandria, City of Washington and Manhattan with strictly free burning pea coal, delivered alongside pier 3, North river, for the year 1888, commencing January 1st, for the sum of $3.05 per ton of 2,240 lbs.; also to furnish any other steamer of our line with same coal at same price, if we wish it. If through any cause you are unable to deliver pea coal, you will deliver us other sizes at an equitable adjustment of price.

“Yours truly,

“F. Alexandre & Sons.”

Thereafter and until the 25th day of June, following, the plaintiff furnished to the defendants such quantities of coal as were required for the use of the steamships named. On that day the defendants sold to the New York & Cuba Steamship Co. all their steamship property, charters and business, including the steamers mentioned in the correspondence, and ceased to operate them. The steamers under the control and management of the purchaser of June 25th, continued to make regular trips at stated intervals between the same ports as before, and during the remaining portion of the year required and used large quantities of ■coal. The plaintiff insists that the correspondence created a valid contract by which he became bound to deliver, and the defendants to receive at the price named, all coal which would be required for the operation of the steamers during 1888, and as the coal required for their use was not received by the defendants after June 25th, that she is entitled to recover the damages sustained because-of the default of the defendants.

The defendants on the other hand contend that the correspondence did not create a contract / that if it did, it was a contract for successive deliveries of coal to be made only when the defendants, should give the plaintiff notice that a delivery was-required, and as notice has not been given the defendants, are not in default.

If in plaintiff’s offer the words “ one thousand tons ” had been employed instead of “ your steamers City of Alexandria, City of Washington and Manhattan,” it would not be questioned that the-written acceptance of the defendants created a valid contract. The offer and acceptance were unqualified: the price fixed; the duration of the contract limited to a period commencing January 1st,, and ending December 31st, of the same year; and the quantity would have been certain.

As it was not possible to determine the precise amount of coal that would be required to operate the steamers during the year, the plaintiff seems to have made his proposition as to amount as definite and certain as the situation permitted. Three of defendants’ steamers made regular trips at stated intervals between certain ports and necessarily required and used in so doing large quantities of coal, and in view of that condition the plaintiff offered to “ furnish your steamers, City of Alexandria, City of .Washington and Manhattan,” with coal for a period of about a year. It is very clear that the language ejnployed by plaintiff in the light of surrounding circumstances was intended to make as definite as possible the quantity of coal which the defendants would be required to take. The quantity to be measured by the requirements of the three steamers for the year ensuing in an employment about which they had been long engaged. So while at the date of the agreement the quantity was indefinite, it was,, nevertheless, determinable by its terms and, therefore, certain within the maxim ce?'tum est quad cerium reddi potest.

Defendants urged that if it be conceded that the proposition accepted was to furnish the steamers with coal for the year at $3.05 per ton, still the undertaking was to furnish coal from time to time when defendants should notify her that deliveries were required, and as no such notice has been given since ‘the last delivery for which payment has been made, the defendants are not in default- and no recovery can be had.

The argument made in support of this proposition briefly stated is, that it is apparent that it could not have been in the contemplation of the' parties that the coal should be furnished in one lot but rather at different times, as the steamers required it for their-several voyages ; nor could the plaintiff know the amount which • each steamer would require at the successive loadings. Therefore, the defendants were to determine the time and quantity for each delivery, and as the contract contained no promise to give-the plaintiff notice, the defendants were bound to take only such coal as they notified the plaintiff to furnish.

It may be doubted whether there is anything in the record to warrant a determination that the plaintiff would not know the several amounts and times when coal would be needed, but, if it were otherwise, we do not deem it controlling. As we have already said, the evident intention of the parties was that the plaintiff should furnish to the defendants all the coal which the steamers named should require in the work in which they were employed for the year ensuing, and that the parties should perform all needful acts to give effect to the agreement, therefore, if a notice was requisite to its proper execution a covenant to give such notice will be inferred, for any other construction would make the contract unreasonable and place one of the parties entirely at the mercy of the other. Jugla v. Trouttet, 120 N. Y., 21-28; 30 St. Rep., 182; New England Iron Co. v. Gilbert E. R. R. Co., 91 N. Y., 153; Booth v. C. R. M. Co., 74 id., 15.

The fact that the defendants deemed it best .to sell the steamers cannot be permitted to operate to relieve them from the obligation to take the coal which the ordinary and accustomed use of the steamers required, for the provisions of the agreement do not admit of a construction that it was to terminate in the event of a sale or other disposition of them by the defendants.

The judgment should be reversed.

All concur, except Haight, J., dissenting.

       Reversing 25 St. Rep., 113.


source: Caselaw Access Project

author: Sherman, S.

license: Public Domain

text:
    In the Matter of the Estate of Jesse B. Smith, Deceased.

      (Surrogate’s Court, Chautauqua County,

      Filed December 18, 1891.)

    Will—Construction—Jurisdiction of surrogate’s court.
    The surrogate’s court has not jurisdiction to give judicial construction to wills on petition for letters of administration with will annexed in place of deceased executrix; but the question may he properly decided ou judicial settlement of the accounts of such administrator, when appointed.
    Proceedings for appointment of administrator with will annexed.

      Walter L. Sessions, for petitioner and as special guardian for William Gaynor, minor, legatee; Van Dusen & Martin, for John Gaynor, legatee.
   Sherman, S.

The petition for the probate of this will alleged that the deceased died at Harmony, Chautauqua county, December 13, 1889, leaving personal property not exceeding in value $2,500, and real estate not worth over $4,000. Deceased left no widow, but one neice, Mrs. C. 0. Hawley, his only heir at law, and made his will dated November 28, 1889, and appointed said Emeline Graynor, his housekeeper, sole executrix thereof, which will was duly probated February 3, 1890, and letters testamentary issued to her.

The following are the material portions of such will: “ After all my debts are paid in full, I do then give and bequeath unto Emeline Gaynor, of the said town of Harmony, being now my housekeeper, all of my real and personal property of every name and nature that I may have at my decease. One thing amongst the property is hereby mentioned, to wit: the insurance that I have obtained on my life of two thousand dollars, in the Chautauqua Mutual.Life Association, that is, two one thousand dollar policies that I now have and hold against said association on my life.

“ It is also further understood, that in the event of Emeline Gaynor dying before said Jesse B. Smith then all of the above mentioned property is to go to William Gaynor, the son of Emeline Gaynor. It is also understood that when Emeline Gaynor ■dies whatever portion of said property that she has inherited from me and remains unspent of my property at her decease shall go to her said son William Gaynor, all except $500, which shall go to her son John Gaynor.

“ Likewise I make, constitute and appoint Emeline Gaynor of the town of Harmony to be my executrix of this my last will and testament, hereby revoking all former wills by me made.

“ In witness whereof I have hereunto subscribed my name and affixed my seal this 28th day of November, 1889.

“Jesse B. Smith.”

Emeline Gaynor died intestate September 6, 1891, and no administrator has been appointed of her estate. She left her surviving two sons, said William and John Gaynor, by a former husband, her only heirs-at-law.

She, as such executrix of the estate of Jesse B. Smith, deceased, made no inventory of the estate and has never accounted, and such estate remains unsettled.

On October 5, 1891, John C. Lewis was duly appointed general guardian of the person and property of said William Gaynor, minor, now aged twelve years, and duly qualified. The petition for such appointment alleged the value of the personal property of such minor was about $500 and annual rents of his real property not over $125.

The petition for the appointment of said John 0. Lewis as administrator with the will annexed of the estate of said Jesse B. Smith was made and filed October 5, 1891. No citation was issued upon such petition, but such general guardian and the petitioner herein and said John Gaynor and William Gaynor by his special guardian, W. L. Sessions, duly appeared personally and by counsel and asked the surrogate to give judicial construction to said will as to whether or not the testator gave all his property, real and personal, to Emeline Gaynor, now deceased, or only the use thereof during her life, and the balance to her said two sons William and John.

No one appeared for the estate of Emeline Gaynor, deceased, no administrator or executor of her estate having been appointed.

The persons so appearing claimed, and it was not denied that all the debts owing by Jesse B. Smith at his death had been fully paid. I do not think that such claims are conclusive as to creditors as the executrix had not advertised for claims and had not filed an inventory.

ISTo objection was made to the appointment of John C. Lewis, as such administrator, except that the will gave all the property to said Emeline, and that therefore no such administrator was necessary.

I do not think that the surrogate court has jurisdiction to give construction to the will in this proceeding, even by the consent and request of all parties interested. To do so would be a mere brutum fulmen. That surrogate courts have authority to construe wills on the judicial settlement of estates has been often held by the court of appeals and supreme court as incident to the authority expressly given to settle and make distribution of estates. Riggs v. Cragg, 89 N. Y., 479; Purdy v. Hayt, 92 id., 446; Du Bois v. Brown, 1 Dem., 317; In re. Verplanck, 91 N. Y., 437; Matter of Thompson, 5 Dem., 117.

Section 2624 of the Code gives to surrogate courts full jurisdiction to construe wills on probate relating to personal property, and it has been held that §§ 2622, 2623, 2627, 2629, 2481, subd. 11, and 2482, give surrogate courts authority to construe wills on probate relating to real estate. Matter of Marcial, 37 St. Rep., 569-576; Matter of Look, 22 id. 86; aff’d by court of appeals,. 125 N. Y., 762; 36 St. Rep., 1010; Matter of Delaplaine, 5 Dem., 402 ; 8 St Rep., 757.

The authority to appoint administrators with the will annexed by surrogate courts is granted by § 2643 of the Code in the several cases therein mentioned, of which this is one provided for, which section says that the surrogate must, upon application for such purpose, upon notice to be given to creditors and other persons interested, as the surrogate deems proper, issue letters of administration with the will annexed, as provided in subds. 1, 2, 3, 4 and 5 of such section.

I find no provision in the Code or statutes giving surrogate courts authority to construe wills in a proceeding like this, and I see no necessity for it in this case, as such construction can be given upon the final settlement upon service of notice upon all parties interested, including creditors and persons interested in the estate of Emeline Graynor, deceased.

I, therefore, direct decree refusing to give such construction to the will of Jesse B. Smith, and appointing John 0. Lewis as administrator, with the will annexed, of such estate, without costs, to either party in this proceeding at this time, he having duly qualified, reserving questions as to costs to the settlement of the estate.


author: Bischoff, J.

text:
    John Paisley, Resp’t, v. Richard H. Casey, App’lt.

      (New York Common Pleas, General Term,

      Filed December 7, 1891.)

    1. Trial—Findings.
    A general finding by a judge or referee at variance with the specific facte found must he disregarded.
    2. Contract—Reformation—Mistake.
    The parties hereto agreed orally for the performance of work for a specifled sum, aud that the architect should draw up a written contract for signature, which contract, through an error of the draughtsman, named a larger sum. In an action to reform the contract, Held, that a general finding that there was no mutual mistake should be disregarded, as the facts specifically found showed that such mistake existed, and that although plaintiff had an opportunity to examine the contract and discover the error before signing, his negligence in failing to do so was no bar to a reformation .of the contract, as defendant’s condition was in nowise altered thereby.
    Appeal from judgment in favor of plaintiff directing the reformation of a contract, and the recovery of an amount paid thereon.
    Action to reform a contract for alterations and repairs to plaintiff’s premises, pursuant to the terms of which plaintiff was to pay defendant $5,213, by reducing the sum to $4,213, in conformity with defendant’s prior written offer; and to recover the sum of $1,000 alleged to have been overpaid the defendant by mistake, and in consequence of an error in the contract.

      Jeroloman & Arrowsmith, for resp’t; David Leventritt, for app’lt.
   Bischoff, J.

To entitle a party to the reformation of a written •contract, it is incumbent upon him to show affirmatively either that it was executed in respect to some material matter therein omitted, or contained, under a' mutual mistake, or that one of them executed i-t in respect to such matter under a mistake, and that the other was guilty of fraud or other unconscionable conduct at the time of execution by him. Pomeroy’s Eq. Jur., III, §§ 845, 1376; Avery v. Eq. Life Ass. Soc., 117 N. Y., 451, 458 ; 27 St. Rep., 699; Born v. Schrenkeisen, 110 N. Y., 59; 16 St. Rep., 412; Albany City Sav. Inst'n v. Burdick, 87 N. Y., 40; Paine v. Upton, id., 327 ; Kilmer v. Smith, 77 id., 226; Lanning v. Carpenter, 48 id., 409 ; Pitcher v. Hennessey, id., 415.

In the present case the complaint was grounded upon the mistake of the plaintiff and the alleged inequitable conduct of the ■defendant, in that he executed the contract sought to be reformed, knowing at the time that the sum of $5,213, instead of $4,213, was erroneously therein stated to be payable to him for the improvements to be made by him to plaintiff’s premises, such •conduct, if proved, being fraud.

It does not appear that the trial judge found the fact of such knowledge, or other inequitable conduct, on the part of the defendant, nor did he find that defendant did not have such knowledge or that he was not guilty of other inequitable conduct, in and about the execution of the contract by him, and while in such a •case the appellate court may, if the evidence would warrant it, presume in support of the judgment that a fact essential to uphold it was found and considered by the trial judge, but omitted from the findings appearing, Sheldon v. Sherman, 42 N. Y., 484, 489; Meyer v. Lathrop, 73 id., 315, 321; Hays v. Miller, 70 id., 112, 116; Grant v. Morse, 22 id., 323 ; Rider v. Powell, 28 id., 310; Doty v. Carolus, 31 id., 549 ; Oberlander v. Spiess, 45 id., 175, we are precluded from affording the plaintiff the advantage of such a presumption, because of the presence in the case at bar of the refusal of the trial judge to find, as propositions of fact established by the evidence presented on plaintiff’s behalf, that the defendant knew of the error or was otherwise guilty of fraudulent conduct when he executed the contract. Meyer v. Amidon, 45 N. Y., 169, 174: Comstock v. Ames, 1 Abb. Ct App. Dec., 411. It is clear, therefore, that unless the findings appearing in the case present some other ground which supports the conclusion that plaintiff is. entitled to the relief accorded him below, the judgment now appealed from must be reversed.

We are of the opinion that the specific facts found, and which upon examination appear to be abundantly supported by evidence of the conclusive character required in actions of this kind, in the absence of knowledge of the error or other fraudulent conduct of the defendant at the time of the execution of the contract by him, present such other ground and admit seemingly of no other rational deduction than that the contract was executed by both parties under a mutual mistake concerning the sum therein mentioned as payable to the defendant

These specific facts are that the parties to this action, prior to the execution of the contract by each of them, orally agreed and arranged that it should be drawn up and prepared for their signature by the architect, and should fix $4,213 as the sum to be paid by plaintiff to the defendant; that at no time were the terms of that oral agreement and arrangement departed* from by either party; that through the error of the draughtsman employed by the architect, the sum was stated in the contract at $5,213 ; that both parties executed the contract, and that plaintiff did so in ignorance of the error and believing the contract to be in every respect in accord with the terms of the oral agreement. Now, if it be, as we must assume from the absence of anything appearing to the contrary, that defendant did not know of the error and -was not guilty of other fraudulent conduct when he executed the contract ; if he agreed, as found by the trial judge, to make a contract at $4,213, and directed it to be so drawn up; if the sum of $5,213, instead of $4,213, was stated in the contract through an error by the draughtsman, and that plaintiff executed the contract under a mistake as to the sum therein mentioned, how did the defendant execute it if not also under a like mistake?

We do not lose sight of a general finding made at the request of the defendant, that the evidence presented upon the trial of this cause does not establish any mutual mistake upon the part of the plaintiff and defendant,” but it is a well defined rule governing the construction of the report of the referee, or the decision of a trial judge, that a general finding at variance with the specific facts found must be disregarded, Bennett v. Buchan, 76 N. Y., 386; Phelps v. Vischer, 50 id., 69, and in the application of this rule the general finding referred to is rendered impotent for the purposes of reversal.

Neither did the proof of mutual mistake in the execution of the contract constitute a variance of so grave a character between it and the allegations of the complaint as to amount to a failure of proof. Plaintiff did not establish his cause of action in all the details in which it was alleged, but he, nevertheless, substantiated his right to have the contract set forth in the complaint reformed in the particulars mentioned in Ms prayer for relief. This, under the provisions of the Code of Civil Procedure, §§ 539, 540, 541, was, at most, a variance between the pleadings and the proof which, if material, was amendable, and if immaterial, could have been disregarded and the fact found according to the evidence. That it was not material in the case before us is plainly discernible from the fact that the evidence required to prove a mutual mistake of the parties was necessarily embraced in that required to establish the mistake of the plaintiff and execution with knowledge of the error by the defendant; that it was, therefore, relevant to the issues created by the pleadings, and that for that reason the defendant was not, and did not claim to have been, misled or surprised by its introduction at the trial.

Pursuant to defendant’s further request the trial judge found as matters of fact established by the evidence that plaintiff had ample opportunity for the inspection of the contract before its execution by him; that with the exercise of ordinary diligence plaintiff could have discovered the discrepancy between defendant’s written offer and the contract, and that the plaintiff was negligent in that he failed to make such discovery. It does not, however, appear that in consequence of such negligence the defendant’s condition was altered in any respect, or that he sustained any loss, or was prevented from making any gain, or that upon the reformation of the contract as he as well as the plaintiff intended to make it, and the return of the sum paid him in excess of the sum he expected to receive for the improvements to plaintiff’s premises, he would not now be in precisely the same condition in which he would have been had the contract originally been executed as the parties intended. In such a case plaintiff’s negligence should not be a bar to his relief, nor should the defendant be permitted to avail himself thereof to his unconscionable advantage by insisting upon the performance of a contract neither intended to make, Albany City Sav. Inst. v. Burdick, 87 N. Y., 40; Andrews v. Gillespie, 47 id., 487; Kilmer v. Smith, 77 id., 226, or to retain the moneys to which he had no claim of right and which he knew or ought to have known were paid to him under mistake. Lawrence et al. v. American Nat. Bank, 54 N. Y., 433; Union Nat. Bank of Troy v. Sixth Nat. Bank of N. Y., 43 id., 452; Mayer v. The Mayor, etc., of N. Y., 63 id., 455.

We have considered the several exceptions to the trial judge’s rulings, respecting the evidence, and urged on this appeal for reversal, but are unable to agree with counsel for appellant that they or any one of them present error.

The judgment should be affirmed, with costs.

Daly, Ch. J., and Pryor, J., concur.


author: Pryor, J.

text:
    John Henry Barry, by Guardian, Resp’t, v. The Second Avenue R. R. Co., App’lt

      (New York Common Pleas, General Term,

      Filed December 7, 1891.)

    1. Neulisen-oe—Pabekts.
    In actions for injury to a child, if negligence of its parents in exposing it to the danger does not appear beyond rational controversy, the question of the parents’ negligence is one for the jury and not for the court as a matter of law.
    2. Same—Evidence.
    In a suit for personal injuries, evidence of actions of the employe of defendant through whose instrumentality the injury occurred, performed and uttered after the accident and when he was not engaged in his master’s business, is inadmissible.
    Appeal from judgment on a verdict and order denying a new trial. Action by an infant four years of age to recover damages for injuries sustained in being run over by defendant’s car.

      John J. Linson, for resp’t; Payson Merrill, for app’lt
   Pryor, J.

The facts, of which there was competent evidence, that the car was run at a dangerous speed and that the driver was inattentive in his lookout for pedestrians, were sufficient to'justify the jury in the inference of negligence; and we find no such preponderance of proof to the contrary as would warrant us in setting aside the verdict Whether the parents of the child, he being non sui juris, were negligent in suffering him to be in the position of peril where he incurred the injury, presents another but hardly more difficult question.

Had the plaintiff been a responsible person he would, on the undisputed evidence, have been guilty of negligence in crossing the street so immediately in front of the horses. The question, then, of the parents’ negligence in suffering the child to be at large and unattended is necessarily in controversy. McGarry v. Loomis, 63 N. Y., 104.

In Hartfield v. Roper, 21 Wend., 615, it was held to be negligence on the part of parents “ to allow ” a child of tender years to go into the highway unattended. In Mangam v. R. R. Co., 36 Barb., 230, the court qualified this language, saying it is negligence “ knowingly to allow ” a child to go at large in a public street without a protector. But, on reversing the judgment of non-suit below, the court of appeals held “ that the escape of the child into the street through an open window coming to within four feet of the ground, this being his only means of egress, the door being locked, will not warrant the conclusion, as a matter of law, that the parent was guilty of negligence.” 38 N. Y., 455. In Fallon v. Central Park, 64 N. Y., 13, the mother left the child alone in the room adjoining the street, the door being open, with injunctions to return to the yard; but the child went out into the street, where it was run over by defendant’s car. Held, that the question of the mother’s negligence was properly submitted to the jury. In Weil v. R. R. Co., 119 N. Y., 147; 28 St. Rep., 944, the child was with her father in the store, the door of which was open. She went behind the counter, and while her father supposed she was still there, she escaped into the street, and was run over by defendant’s car; plaintiff having been non-suited for the negligence of the father, the court of appeals held the ruling to be error, and said the question should have been submitted to the jury. Ames v. R. R. Co., 56 Sup’r Ct., 3; 24 St. Rep., 818.

The principle to be deduced from these and all the cases is, that if the negligence of the parent do not appear beyond rational controversy, if opposite inferences as to the fact of negligence may reasonably be drawn from the evidence, then the question is for the jury, and not for the court as matter of law.

In the case before us the child dined with his father and mother in a room adjoining the shop; father and child went into the shop leaving the mother at dinner; the father having kissed the child, went out, closing the door tight behind him ;• the knob of the door was three feet from the floor; having finished dinner, five or ten minutes after the father left, the mother went into the shop to look for the child, and not finding him she opened the door and saw a man carrying him; the child had never gone into the street with her knowledge or consent, and he did not on the occasion in question go out with her knowledge or consent How or at what moment the child left the shop is not apparent on the evidence.

Upon this predicament of fact, it was obviously the duty of the court to submit to the jury the question of the parents’ contributory negligence, and their verdict is not so contrary to the evidence as to require us to set it aside. It follows further that there was no error in refusing to charge that the mere fact of the presence of the child in the street, alone and unattended, “ was prima facie evidence that he was exposed through the negligence of his parents.”

Hitherto the case is clearly with the respondent; but, unfortunately, he persisted in pressing upon the court an item of evidence, the admission of which is fatal to the judgment. The plaintiff inquired of his witness: “You saw the driver walking up Second avenue ?” The answer was: “ Yes, sir.” The witness was then asked: “ What was he doing when you saw him ?” To this question counsel for the defendant objected on the grounds that the evidence so called for was irrelevant, hearsay and not of the res gestee; but the court admitted it, to which exception was duly taken, and the witness answered: “He was laughing and chatting and walking along with the men up to One Hundred and Twenty-third street and Second avenue.” The conduct of the driver, thus given in evidence, was subsequent to the accident and after the injured child had been “carried around the corner to his mother.”

The learned counsel for the respondent essays to sustain the ruling both upon principle and authority. He argues that the evidence was competent as part of the res gestae, and he cites authorities in support of his contention. But here was no declaration coincident with the accident and explanatory of its occurrence, but conduct subsequent to the accident and in no manner or degree relating to it The proof was of acts of an agent to affect his principal with liability; but the driver was not at the moment engaged in his employer’s business, i. e., driving the car, mar had the conduct shown any conceivable connection with his service or duties.- The things he was proved to have done, “laughing and chatting,” were purely personal, and for which his-master was in no way responsible.' If. it be argued that the demeanor of the driver evinces a disposition of brutality that would make him reckless in injuring others, the answer is that the most direct and conclusive proof of his inhuman nature would raise no legal presumption of his negligence in causing the accident,' and so would not be competent evidence on the issue.

Nor do the cases adduced by the learned counsel for the respondent lend the least countenance to the ruling in controversy. Courteney v. Baker, 2 J. & S., 529, only enunciates the familiar, and undoubtedly correct doctrine, that “ what a person said at the time of an accident, which would tend to prove that the accident was caused by his carelessness, is competent evidence under the rule that it was part of the res gestee.” In Casey v. R. R. Co., 78 N. Y., 518, 523, the report does not disclose what the challenged evidence was; only that it was of -something “ that occurred after the accident.” In allowing it the court, by Miller, J., said: “It was merely following up the evidence which had previously been given by the same witness, and constituted a part of the transaction.” 95 N. Y., 284.

In Hanover R. R. Co. v. Coyle, 55 Pa. St., 396, the ground of the decision approving the admission of the declarations of the engineer was that “ they were made at the time of the accident as part of the res gestee.” 95 N. Y., 280.

On the contrary, the ruling under review is discredited by the uniform course of adjudication in New York, and for that matter of other states as well. Laby v. R. R. Co., 17 N. Y., 131; Moore v. Meacham, 10 id., 207; Hamilton v. R. R. Co., 51 id., 100; Whitaker v. R. R. Co., id., 295; People v. Davis, 56 id., 95; Tilson v. Terwilliger, id., 273; Waldele v. R. R. Co., 95 id., 274; Lund v. Tyngsborough, 9 Cush., 36; Rockwell v. Taylor, 41 Conn., 55.

In People v. Davis, supra, Grover, J., said: “ Th"e length of time between the act and its subsequent narration by one of the actors I do not regard as material. The question is, did the declaration accompany the act, or was it so connected therewith as to constitute a part of it ? If so, it is part of the res gestee and competent; otherwise, not.” In Waldele v. R. R. Co., supra, Earl, J., said: “ The manner of the accident and the res gestee was to be inquired into. * * * Bes gestee must be res_gestce that has something to do with the case, and then the declaration must have something to do with the res gestee.” In Whitaker v. R. R. Co., supra, a run over accident, a witness was allowed to prove that immediately after the car passed he heard the driver cursing and damning the plaintiff, saying “ let him fall in and be killed; ” and for the admission of this evidence, among other errors, the court reversed the judgment.

The evidence under criticism being incompetent, the inquiry is whether its admission was prejudicial error? The settled rule is, that, in common law actions at least, the court of review will reverse for errors in evidence, unless it be apparent that the errors were incapable of harm. Now, it is impossible for us to predicate of the error in question that it was of- no detriment to the defendant. ' What more likely to inflame a jury with anger and indignation, and so to disturb the serenity of their judgment, than such indifference and inhumanity as was displayed by this driver in the presence of the wounds and agony he had inflicted upon a helpless child? Nay, it is impossible to doubt that the evidence was introduced for the very purpose of its effect on the feelings of the jury, and that it probably operated as intended is not negatived by the amount of the verdict ($5,000). “Illegal evidence tending to excite the passions, arouse the prejudices, awaken the sympathies, or influence the judgment of jurors, may not be considered harmless.” Hutchins v. Hutchins, 98 N. Y., 57 ; Anderson v. R. R. Co., 54 id., 334.

We regret that, for the error indicated, the judgment, must be reversed.

Judgment reversed and new trial ordered, costs to abide the event

Daly, Ch. J., and Bischoff, J., concur.


text:
    James Barry, Resp’t, v. The Second Avenue R. R. Co., App’lt.

      (New York Common Pleas, General Term,

      Filed December 7, 1891.)

    Appeal from judgment in favor of plaintiff and from order denying motion for a new trial on the minutes.

      John J. Linson, for resp’t; Payson Merrill, for app’lt.
   Pryor, J.

The action is by the father of the infant John Henry Barry, to recover damages accruing to him from injuries to the-son sustained by the accident which is the subject of discussion in Barry v. Second Avenue R. R. Company, herewith decided. The evidence in the two cases is, in substance, identical. The appeal is from a judgment on a verdict; but as the judgment is challenged only for insufficient proof of defendant’s negligence and plaintiff's non-negligence, and as those points are ruled against the appellant in the other case, it results that the judgment must be affirmed.

Judgment affirmed, with costs.

Daly, Ch. J., and Bischoff, J., concur.


text:
    Oscar Compton, Resp't, v. John D. Heissenbuttel et al., App’lts.

      (New York Common Pleas, General Term,

      Filed December 7, 1891.)

    Contract—Breach—D amases—W harfage.
    In consideration of the transportation of a cargo of coal defendants agreed to pay to plaintiff a certain price per ton and “ all wharfage at the place of consignment.” The wharfage not being paid the vessel was seized in proceedings brought by the wharfinger. In an action to recover the amount paid by plaintiff to release the vessel and for the loss of its use, Held, that defendants’ agreement was not to pay the wharfage to the wharfinger, but to indemnify the plaintiff for its amount, and that they were not liable for any consequential damages arising from its not having been paid when due; and that the measure of damage was the amount of the wharfage fees with interest.

      Appeal from a judgment of the general term of the city court of Mew York, affirming judgment in favor of plaintiff, entered upon a verdict in an action brought to recover damages arising from the breach of defendants’ agreement to pay, as a part of the freight agreed to be paid to plaintiff for the carriage of coal, the charge for wharfage incurred by the use of a wharf at Growanus creek, Brooklyn, M. Y., for the purposes of plaintiff’s canal boat while awaiting discharge of its load.

      Hyland & Zabriskie, for resp’t; James L. Bishop, for app’lts.

       Reversing 38 St. Rep., 458.

   Bischoff, J.

On the trial of this action defendants contended that under the agreement for the breach of which this action was brought, plaintiff’s recovery should be limited to ten dollars, the amount of wharfage incurred by his boat for the use of the wharf at Growanus creek, with the legal interest on that amount. Seasonable requests were made that the jury be so instructed, which were refused, and the exceptions to these refusals present the main question addressed to us for review.

An examination of the briefs of counsel for the respective parties to this appeal shows that they are at variance as to the terms of the agreement Defendants insist that the amount of wharfage was payable from them to the plaintiff, and plaintiff contends that it was payable from defendants to the wharf owner. Resort must therefore be had to the pleadings and the' evidence adduced on the trial in support of the allegations therein contained, for information as to the extent of defendants’ undertaking.

The record upon which we are to determine this appeal indicates that the court below erred in its assumption that such undertaking was as urged by plaintiff; hence, the application of the measure of damages under which plaintiff was permitted to recover was inappropriate, and the defendants’ exceptions thereto were well taken. Had the defendants’ engagement been to pay the amount of wharfage to the wharf owner, thus satisfying the latter’s lien upon the boat, then the non-performance of that engagement would have imposed upon the defendants a liability towards the plaintiff to recompense him for the loss of the use of his boat while it was necessarily in' the custody of the United States marshal under his seizure in the wharf owner’s proceedings for the enforcement of his lien, together with the costs of such proceedings, and the amount of wharfage necessarily paid by the plaintiff to enable him to recover possession of his boat. Tuers v. Tuers, 100 N. Y. 196.

Such, however, was not the defendants’ agreement, as will be seen by reference to the complaint and the testimony adduced upon the trial in support of the agreement alleged. The complaint recites that in or about the month of March, 1882, S. H. Brown & Co., of South Amboy, N. J., shipped a cargo of coal to the defendants, and then proceeds that “ The defendants agreed to pay to the owner of said canal boat (the plaintiff) as freight, for the transportation of said cargo, eighteen (18) cents per ton alongside, and all wharfage at the place of consignment, which was fixed by law at the rate of fifty (50) cents per day.” Plaintiff testified, “I told him (defendant Heissenbuttel) we had a boat; he asked us what we wanted; we said eighteen cents and the wharfage; he said That is all right, that is the usual rate and the usual condition, to pay the wharfage; we will give it to you ; ’ and he gave us the order in pursuance of that conversation.” Turner, a witness for the plaintiff, testified as follows:

Q. State what Mr. Heissenbuttel said as to what he would pay ? A. He was to give eighteen cents a ton alongside and wharfages paid.

Q. And pay the wharfage? A. Yes, according to custom.

This testimony comprised all the evidence concerning the terms of the agreement for the carriage of the coal, and we fail to find therein anything which demonstrates any undertaking on the part of the defendants to do other than to pay plaintiff a sum equal to the amount of wharfage to be incurred by him, and considered in connection with the agreement specifically set out in the complaint it is conclusive of the fact that all the defendants promised to do was to pay plaintiff as freight a sum equal to eighteen cents for each ton of coal with the'amount of wharfage added thereto, reference to the wharfage being made only for the purpose of determining the precise amount to be paid by the defendants to the .plaintiff.

That being so, it was not incumbent upon the defendants to see to the application of a part of the aggregate sum payable by them for freight in satisfaction of the wharf owner’s lien upon plaintiff’s boat for the amount of wharfage due him, and defendants’ omission to make such application cannot, therefore, support a recovery against them by the owner of the boat for damages resulting to him from the enforcement of the wharf owner’s lien which could have been averted by seasonable payment of the amount thereof to the wharf owner. The agreement in evidence bound defendants to the performance of no other act than the payment to the plaintiff of the stipulated sum for freight, and to the extent of such aggregate sum the plaintiff was constituted the creditor of the defendants.

It is elementary that the breach oi; the debtor’s promise to pay a sum of money entitles the creditor to whom it was payable to' no greater recovery than the principal of the debt with interest at the legal rate from the time the principal became payable, the legal interest comprising the full measure of the creditor’s damage for the detention of the debt. “No matter (Wharton on Contracts, vol. 2, § 966) how great may be the damage a creditor may sustain from the non-payment of his debt at maturity, he is not entitled to recover anything beyond principal and interest from his debtor.” See, also, Loudon v. Taxing District of Shelby County, 104 U. S., 771; New Orleans Ins. Ass'n v. Piaggio, 16 Wall., U. S., 378; Kendall v. Stokes, 3 How., U. S., 87, 102; Fletcher v. Tayleur, 17 C. B., 29.

This case is not like that of Dubois v. Hermance, 56 N. Y., 673, cited by respondent, seemingly with much confidence in support of the measure of damages applied at the trial. In the case last cited the defendants had contractually assumed, so far as the plaintiff was concerned, a primary obligation to discharge plaintiff’s contract with others, and for a breach of that obligation the defendants were held answerable for the damages recovered against the plaintiff for breach of the contract. In the case at bar the defendants did not undertake to satisfy the wharf owner’s demand against the plaintiff for wharfage to be incurred, but to pay plaintiff a sum equivalent to the amount of such wharfage. It, therefore, still remained for plaintiff, so far as concerned the defendants, to satisfy the wharf owner’s lien, and the consequences of an omission so to do are in no manner attributable to the neglect of the defendants.

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

Pryor, J., concurs.


text:
    James M. Sinclair et al., Resp’ts, v. Robert A. Hollister and William T. Merritt, Impl’d, App’lts.

      (New York Common Pleas, General Term,

      Filed December 7, 1891.)

    Joint debtoes—Supplemental answer—Vacation of judgment.
    On the trial of an action in the city court of New York against copartners upon a promissory note, judgment was recovered against two of the defendants and the complaint dismissed as to the other. The judgment of dismissal was subsequently reversed and a new trial granted: The defendant thereupon applied foi leave, to serve a supplemental answer pleading the judgment against his co-defendants in bar of the action against him. Buch motion was granted unless plaintiffs should “ enter an order on their own motion vacating said judgment; in wdiich case the moiion for leave to serve the supplemental answer * * * shall be deemed denied.” Held, that the order entered upon this motion, and a subsequent order granted in pursuance of the condition so imposed, vacating the judgment, would not be disturbed on appeal to the general term of the court of common pleas, as both of said orders involved the exercise of judicial discretion by the court below.
    Appeal from two orders of the general term of the city court of Hew York, affirming orders of the special term of that court

      Artemas B. Smith, for resp’ts; John H. V. Arnold, for app’lts.
   Pryor, J.

Appeals from orders of the general term of the city court, affirming orders at special term.

Action on promissory notes against defendants as copartners. All three defendants were summoned and appeared; defendants Merritt and Hollister answered; defendant Tilton defaulted. On. trial of the issues between plaintiffs and defendants Merritt and Hollister, by direction of the court, a verdict was rendered against Merritt, and the complaint dismissed as to the defendant Hollister. In pursuance of the proceedings .at trial, judgment was entered against Merritt, and against Tilton defaulting, and in favor of Hollister, dismissing the complaint, with costs. From the order dismissing the complaint as against Hollister, and from so much of the judgment as was in his favor, plaintiffs appealed to the general term of the city court, where said order and so much of said judgment were reversed, and a new trial granted of the issues raised by the answer of Hollister. The cause being restored to the calendar, and set for trial, Hollister noticed a motion for leave to serve a supplemental answer, pleading the judgment against Merritt and Tilton in discharge of his liability, and in bar of the action. The court granted the motion, unless within a certain time the plaintiffs should “ enter an order on their own motion vacating said judgment; in which case the motion for leave to serve a supplemental answer by Hollister shall be deemed to be denied; ” and an order was entered accordingly. On appeal from this order by Hollister, it was affirmed at general term of the city court; and the validity of the affirmance is before us for review.

Pursuant to the condition in the order upon Hollister’s motion for leave to serve a supplemental answer, an order was made vacating the judgment against Merritt and Tilton; and the affirmance of that order is before us for revision.

As the validity of the order rejecting the supplemental answer depends essentially upon the effect of the order vacating the judgment, we will consider the last first

That a judgment operates as a merger of the cause of action on which it proceeds, transit in rem judicatam, is a proposition so elementary that it would be the merest pedantry to cite authority in its support. Hence the other proposition, which, if not a first principle, is still clearly and conclusively established, that a judgment against some only of several joint contractors discharges the rest-, and is pleadable by them in bar of an action on the original promise. Olmstead v. Webster, 8 N. Y., 413; Candee v. Smith, 93 id., 349; Heckemann v. Young, 55 Hun, 406; 29 St. Rep., 55 ; Suydam v. Barber, 18 N. Y., 468; Robertson v. Smith, 18 Johns., 459 ; King v. Hoare, 13 M. & W., 494. It follows that as the action proceeds on the joint obligation of defendants as copartners, the judgment against Merritt and Tilton discharged the liability of Hollister; and if nothing more appeared, his proffered supplemental answer would have presented a valid and indefeasible defence.

It will be recalled that Hollister s motion for move to serve the supplemental answer was allowed conditionally; that is, if plaintiffs failed to vacate their judgment against Merritt and Tilton ; in which event the motion was denied. The condition was complied with and the judgment vacated.

What, then, after its vacatur, was the effect of the judgment on Hollister’s liability ? Was the judgment against his co-contractors still available to him as a defense to the action?

It is a principle of the common law that a right of action once extinguished as by merger, though for never so short a time, is gone forever and cannot again revive. Broom’s Commentaries on the Common Law, 112, 3d Eng. Ed. But a valid judgment is necessary to the existence or continuance of a merger; and any mistake, defect or irregularity which renders the judgment ineffective prevents a merger of the cause of action upon which it was recovered. Briscoe v. Stephens, 9 Moore, 413; Adney v. Vernon, 3 Lev., 243; Mico v. Morris, id., 234; Wixom v. Stephens, 17 Mich, 518. So, when a judgment, valid and sufficient at the time it is rendered, is set aside or reversed, the merger ceases. Good rich v. Bodurtha, 6 Gray, 323. Hence, “if a plaintiff recover judgment against one of several joint contractors, and it is reversed, lie may proceed against all of them in a new action.”' Maghee v. Collins, 27 Ind., 83.

There being no pretense that the judgment against Merritt and Tilton was ineffectual for infirmity either in form or substance, it constituted a perfect defense in favor of Hollister, unless its effect as such defense was destroyed in its subsequent vacatur.

At this stage of the argument, the question might be presented,, whether the order vacating the judgment is valid. Hollister appeals from the order, but if he is not aggrieved by it, he has no-right to prosecute the appeal, and its affirmance can in no way affect his rights. We assume, therefore, without pausing here to discuss it, that the order is right and unimpeachable; and we proceed to determine its bearing upon the motion for leave to serve a supplemental answer.

The order vacating the judgment was procured and entered by the plaintiffs. It is entitled “ James H. Sinclair and Hector Sinclair, Jr., plaintiffs, against'William J. Merritt, Robert A. Hollister and George H. Tilton, defendants. Its operative words are, “ Ordered, that the judgment heretofore entered in this action in favor of the plaintiffs and against the defendants, William J. Merritt and George H. Tilton, and filed, etc., be and the same hereby is vacated and set aside, but without prejudice to all proceedings theretofore had in this action, or to the right of the plaintiffs to re-enter the said judgment after the trial and determination of the issues raised by the answer of said defendant Hollister herein, and reserving unto the defendants all rights in regard to and defenses to said action.”

The order was entered 31st March, 1891. The order disposing of Hollister’s motion for leave to serve a supplemental answer was dated 10th March, 1891. Thus, in vacating the judgment, the court had before it Hollister’s proposed answer, pleading the judgment in bar of the action as against him. And yet the court in vacating the judgment apparently ex industria imposed the condition that the vacatur should not impair any of his rights or defenses in the action.

What, then, is the effect of this express reservation in the order of all Hollister’s rights and defenses ? Does it qualify the operation of the judgment so vacated as a merger of the cause of action and a defense in favor of Hollister ?

In Olmstead v. Webster, 8 N. Y., 413, the defendant pleaded in bar the recovery of judgment against his partner and co-contractor. The answer was, that the judgment had been vacated. To avoid the effect of the vacatur, it was shown, that two years and eight months subsequent to the rendition of the judgment against Rumsey, the co-contractor, the latter and the plaintiffs, by stipulation, vacated the judgment; and that subsequently on the application of Webster, the defendant, the vacatur was so modified as to reserve all his rights. Upon this state of fact the court ruled, that the vacatur did not affect the rights of defendant, Webster, and that, as against him, the judgment was a bar to the action.

Wé do not overlook the fact that whereas, in Olmstead v. Webster, the judgment was the voluntary act of the plaintiff, here the judgment was imposed upon the plaintiffs by the direction of the court; but the circumstance is ineffectual to arrest the necessary legal operation of the judgment as a merger of the cause of action. So, likewise, though it were the object of the court, in vacating the judgment, to prevent its being pleaded as a defense by Hollister, such purpose cannot be permitted to prevail over the plain terms and proper effect of the order. Broom’s Commentaries, 280. It is the fault of the plaintiffs if, in entering the order, they have so phrased it as to nullify its intended operation. Our function is to construe the order as it is presented in the record, and to give it its legitimate legal effect.

The judgment, then, against Merritt and Tilton is still available to Hollister as a defense to the action; and the final question is, did the court below commit legal error in refusing him leave to plead it?

The appellate power of this court is purely statutory, and exists only as it is conferred by legislation. Wilmore v. Flack, 96 N. Y., 512. By express permission of the Codewe have authority to review an order from the city court “ where it affects a substantial right.” Sec. 3191. But then, our jurisdiction over the determinations of that court is analogous to the jurisdiction of the court of appeals over our own determination. What then is the appellate power of the court of appeals over the orders of this court affecting a substantial right ? The answer is that an order of the court below which is the result of the exercise of discretion, although it affects a substantial right, will not be reviewed by the court of appeals. Fleischmann v. Bennett, 79 N. Y., 579; Livermore v. Bainbridge, 56 id., 72; Martin v. Windsor Hotel, 70 id., 101; Spears v. Mayor, 72 id., 442. In Holyoke v. Adams, 59 N. Y., 233, the appeal was from an order of the general term of the supreme court, affirming an order of special term denying a motion to make a supplemental answer setting up a discharge in bankruptcy, and held “ That the court must grant leave unless the facts disclosed show a case calling for the exercise of discretion;'” that “leave may be denied, although the decree sought to be interposed be strictly legal where, in the judgment of the court, loches or fraud is shown, or it appears that injustice will be wrought by allowing such defense,” ana that, “ where the facts disclosed are sufficient to call into exercise the discretionary.power of the court, its determination cannot be reviewed here.” In the case before us the facts disclosed were sufficient to invoke an exercise of the discretion of the court upon the question whether the appellant Hollister had waived his right to serve the proposed supplemental answer by agreeing to set the cause for trial on the issues raised by his original answer; upon the question whether, by delaying his motion more than two months after reversal of the judgment in his favor, he was not guilty of such loches as disentitled him to the relief; upon the question whether “injustice would not be wrought by allowing such defense.” Indeed, in disposing of the motion, the learned justice below said: “ This is in furtheranee of j ustice, works no hardship on either party, and removes the technical objection the defendant Hollister raises.”

But the point in discussion has been explicitly adjudicated by this court. In Wakefield v. The American Surety Co., 13 Daly, 349, we said: “ The court of common pleas will not, upon appeal from the city court, review.tke action of that court in refusing leave to defendant to interpose a supplementary answer where it appears that the application for such leave called for the exercise of judicial discretion.”

And so, of the order vacating the judgment; the entry of judgment against two only of the three joint contractors was a mere irregularity, the correction of which by the court below is not the subject of review by us. The Judd, etc., Co., v. Hubbell, 76 N. Y., 543 ; Arthur v. Griswold, 60 id., 143 ; Whitney v. Townsend, 67 id., 40; Foote v. Lathrop, 41 id., 358; Bank v. Spencer, 19 Hun, 569.

As we have jurisdiction of the appeals we may not dismiss them; but as the orders involve the exercise of discretion, we cannot reverse the decision below.

Orders affirmed, with costs.

Daly, Ch. J., and Bischoff, J., concur.


author: Ingraham, J. Daniels, J.

text:
    Emeline C. Baker, Resp’t, v. The Eighth Avenue R. R. Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 13, 1891.)

    Negligence—Street railroads.
    Plaintiff, a child eight years of age, attempted to cross the street at a place where there was no cross-walk, and passed behind a car going up town as another came down by it, and stood between the tracks. The driver of the latter car pulled the horses away from her, when she was struck by the hip of the nearest one and knocked under the car. Held, that a verdict in favor of the plaintiff was not sustained by these facts.
    Appeal from judgment entered on verdict of a jury.

      John M. Scribner, for app’lt; Jacob Fromme, for resp’t
   Ingraham, J.

A review of the evidence in this case has satisfied us that the finding of the jury that the injury was caused by defendant’s negligence cannot be sustained.

There were three witnesses called on behalf of plaintiff as to the occurrence that resulted in the injury.

The plaintiff herself, a child eight years of age at the time of the accident, testified that she passed behind a car going up town, and as she did so a car came down town, the horses, as she stood between the tracks, being directly in front of her; that she stood between the up town track and the down track; that she saw the ■driver pull the horses away from her; as he did so she was struck by the hip of the horse nearest to her and was thrown under the car.

The place at which the plaintiff crossed was about midway between two cross streets; there was no cross sidewalk in that vicinity.

Haley, a witness called for the plaintiff, testified that he noticed the child pass behind the up town car; that he saw her struck by the collar of the horse attached to the down town car; that at, that moment the driver pulled the horses around to the west away from the ghild and the child was then struck by the hip of the horse and was thrown under the car. He also testified that shortly before the accident he saw the face of the driver turned toward the west.

Finnelly, a policeman, was the third witness called for plaintiff. He testified that he was on the back platform of the uptown car; saw the child pass behind the car and stand between the tracks, and that he noticed that one of the horses was outside of the rail,, between the two tracks, and that the plaintiff was knocked down, by the flank of the horse and her leg got under the car.

There was no reason for the driver to expect that a person would attempt to cross right behind the uptown car; there was-no crosswalk at which persons were in the habit of crossing, and the mere fact that he, at that moment, turned his head away from the horses or the front of the car would not of itself justify a finding of negligence.

Haley says that the collar of the horse striking the child was what attracted the attention of the driver. The plaintiff herself says that she was struck by the back .of the horse, and Finnelly, the policeman, says that the first thing he saw was plaintiff knocked down by the flank of the horse.

It is not material which of these versions is accepted. It is apparent that the appearance of the child so near the track and in a-place of possible danger justified the driver in taking means to avoid an accident. He had to act rapidly with little time for reflection, and it cannot be said that because it now appears probable that had he allowed his horses to go straight on that the child would have escaped justify a finding that he was negligent ; at most it was an error of judgment as to what, under the circumstances, would most likely prevent an accident, and there is no question but what he acted in good faith and did what he supposed, under the circumstances, was the best thing to do. ■

As was said in the case of Fenton v. The Second Avenue R. R. Co., 126 N. Y., 627; 36 St. Rep., 385: “ Street railway cars have a preference in the streets, and while they must be managed with care so as not to carelessly injure persons in the street, pedestrians must, nevertheless, use reasonable care to keep out of their way.”

There was no reason why this child should have passed behind the car and stand so near the track of the down-town car that the horse could hit her, and the driver had no reason to expect that any person would act as the plaintiff testifies that she did, and his efforts made in good faith and in the exercise of his best judgment at the time to avoid injury will not justify a finding that he was negligent

The. testimony of the defendant gives a slightly different aspect to the case, but makes it only more clear that the action of the driver, was. under the circumstances, judicious and proper.

We think, therefore, that the court should have directed a verdict for the defendant, and it follows that the judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.

Van Brunt, P. J., concurs in result

Daniels, J.

—I think the case was not for the jury, but for a dismissal of the complaint, and, therefore, agree to a reversal and new trial.


author: Van Brunt, P. J.

text:
    In the Matter of the Application of the Trustees of The Simonds Soap Co.

      (Supreme Court, General Term, First Department,

      Filed November 13, 1891.)

    Corporations—"Voluntary dissolution—Injunction.
    In a proceeding for the voluntary dissolution of a corporation, the court may at the time of appointing a temporary receiver grant an injunction against the prosecution of suits against the corporation. It is not necessary that a motion for such injunction should he made after the appointment of the receiver.
    Appeal from order denying motion of a creditor of the above named corporation to vacate order enjoining the creditors from prosecuting suits against the corporation.

      J. J. Adams, for app’lt; H. Stanton, for resp’t
   Van Brunt, P. J.

In May, 1891, a majority of the trustees of the Simonds Soap Co., a corporation created under the laws of this state, presented their petition to the court praying for a final order dissolving said corporation, and thereupon on said day, upon due notice to the attorney general, an order was made requiring the creditors to show cause why the corporation should not be dissolved. Thereafter, on May 25th, due notice was given to the attorney general of a motion to be made for an order appointing a temporary receiver and enjoining creditors from prosecuting suits, on the return of which notice an order was made appointing a temporary receiver and enjoining creditors from prosecuting suits.

At the time of the making of this order the appellant was prosecuting a suit against the Simonds Soap Co., in the City Court of Hew York, and upon the affidavit of his attorney an order was made requiring the receiver to show cause why said injunction order should not be vacated, so far as it restrained and enjoined the appellant from proceeding with his said action to judgment and execution. This motion was denied, and from the order thereupon entered the creditor, the appellant, appeals to this court.

It is claimed upon the part of the appellant that the appointment of the temporary receiver must be complete by the actual entry of the order appointing him before any application can be made for an injunction restraining creditors; and our attention is called to the case of In re French M'fg Co., 12 Hun, 488, in which it was decided that upon the presentation of an application for a voluntary dissolution under the provisions of the Revised Statutes, an injunction restraining a creditor from proceeding against the corporation to enforce his demand cannot be granted at the same time with the order to show cause why such dissolution should not be had. We fail to see that the case cited has any application to the question now presented before the court.

By § 2423 of the Code, which relates to the procedure for the-dissolution of a corporation, it is provided that if it shall be made to appear to the satisfaction of the court that the corporation is insolvent, the court may at any stage of the proceeding before final order, on motion of the petitioners on notice to the attorney general, or on motion of the attorney general on notice to the corporation, appoint a temporary receiver, etc. ,

The last clause provides that if such receiver be appointed the court may in its discretion, on like motion and notice, with or without security, at any stage of the proceeding before final order, grant an injunction restraining the creditors of the corporation from bringing any action against said corporation or from taking any further proceedings in such an action theretofore commenced.

It is perfectly, apparent that the intention of this legislation is to guard'the assets of an insolvent corporation against the invasions of creditors whereby they will obtain preferences in the collection of their debts; and it was found necessary, in order that the proceedings should be effectual in preventing such a result, to-amend the. provisions of the Code, giving- the courts additional power iu this direction, viz., to appoint a temporary receiver before final order, and granting an injunction against the prosecution of suits, against th.e corporation. The latter remedy is incidental,, depeyding upon the former. The court has no right tó. grant an injunction unless it appoints a receiver, who shall protect the-property for- the benefit of all the creditors of the corporation. Mow it is. clear that until the court has determined upon the propriety of the appointment of a receiver it cannot grant an inj unction, and therefore the decision in the case cited was entirely correct. All that that case held was that an injunction could not be granted at the time that the order to show cause was granted why dissolutibn should; not be had. The question of dissolution and of the appointment- .of a receiver depended upon the insolvency of the corporation, and if that appeared to the court, and a receiver was appointed, then a temporary receiver might be appointed. Mow, the court having determined- upon the appointment of a receiver, and: that that was necessary for the protection of the property.of the corporation, then it had the right' to grant, the injunction.

The remedies went hand in hand, the injunction depending upon thq appointment oí a receiver, although the appointment of a receiver didinot depend upon the injunction. The receiver was appointed when the- court entered the order directing his appointment, and the creditors.were enjoined at the same time; and the injunction is not: granted except a receiver be appointed.

In construing the terms of this legislation, the object to be obtained -must necessarily be considered. There was no propriety in postponing the commencement of proceedings to obtain the injunction until after the appointment of the receiver. The adjudication for an injunction could not take place until the propriety of appointing a receiver had been determined. The statute does not say that the motion and notice shall be given after the appointment of a receiver; but, if such a receiver be appointed, the court may in its discretion on like motion and notice, whenever given, enjoin, but it has, as already stated, no power to enjoin until it has determined upon the propriety of appointing a receiver, and taking possession of the property of the corporation by its officer.

We think the order appealed from should be affirmed, with ten dollars costs and disbursements, but with leave to apply to the court below for a modification of the injunction permitting him to enter judgment, and issue execution, in order to form the basis of an action against the stockholders of the corporation if he be so advised.

Barrett, J., concurs.


author: Daniels, J.

text:
    In the Matter of the Application of John Loftus, for a Peremptory Mandamus.

      (Supreme Court, General Term, First Department,

      Filed November 13, 1891.)

    1. Stay—Non-payment op costs.
    An. objection that the renewal of a motion was unauthorized because of a failure to pay costs adjudged on the first application, cannot be sustained on appeal where it does not appear that such costs were ever demanded or that the objection was taken on the hearing of the motion.
    2. Mandamus—When pbbemptoey wbit will not be gbanted.
    A peremptory writ of mandamus should not be granted where there is a dispute as to the fundamental facts on which the relator’s right depends ; but in such case an alternative writ should be issued, upon the return of which the facts may be ascertained.
    Appeal from an order directing the issuing of a writ of peremptory mandamus, requiring the commissioner of the street cleaning department of the city of New York to restore the applicant to the position of wheelwright.

      William A. Sweetser, for app’lt; Albert S. Warner, for resp’t.
   Daniels, J.

The applicant, John Loftus, is an honorably discharged soldier, who served in the Union army during the war of the Rebellion. He was appointed to the position of wheelwright in the street cleaning department by Andrew H. Rogers, who was then the deputy and acting commissioner, on the 19th of August, 1889. And he was removed from it by the commissioner, on or about the 3d of November following. He was not charged with inefficiency or misconduct, but was removed arbitrarily, without a hearing of any description, and immediately afterwards applied to be reinstated as an honorably discharged Union soldier. This application was afterwards repeated, but denied, as the first application was. And to secure the success of the application, the writ of peremptory mandamus was applied for. The motion, where it was first_heard, was denied, with ten dollars costs, which have not been paid, but without prejudice to its renewal on further papers. And it was afterwards renewed, and the yrit was then ordered to be issued.

The objection has been taken on behalf of the commissioner that this renewal was unauthorized because of the failure to pay these costs. But as it does not appear that they were ever demanded, or that this objection was taken on the hearing of the motion, it cannot at this time be sustained.

A much more serious difficulty arises upon the affidavits affecting the appointment itself and the power to make it. For Mr. Fagan, the previous appointee, swears positively that he was not removed, but at most only suspended from the position. And in this statement he is confirmed by the fact that the books of the department do not show his removal, and the letter of the superintendent written on the 19th of August to Mr. Rogers announces the appointment of the applicant to be only temporary. The affidavit of Mr. Beardsley, the chief clerk, is also to the same effect. For he swears that Fagan was suspended only, and when the charges against him proved to be unfounded he was restored again, and the applicant was in that manner superseded.

It is true that his statements are mainly derived from the books of the department, .but as a record of its proceedings and business they were entitled to be referred to as some evidence of the proceedings which had been taken. The affidavit of Mr. Homer is similar in its effect, but he adds positively that Fagan was not removed from his position. Mr. Dalton, the present deputy commissioner, also swears that Fagan was not removed. And if that is the truth, then there was no more than a temporary vacancy to be supplied, and the position could be rightly held by the applicant no longer than such vacancy continued. Mr. Warner’s affidavit is in conflict with the statements of Mr. Homer. And the truth may be that Fagan was, in fact, removed and the applicant permanently appointed, as he and Mr. Rogers swear he was, in his place. And there is reason for believing that to be the fact arising out of the unfriendly discrimination not infrequently found to be made by local officials against honorably discharged soldiers and sailors entitled under the laws of the state to preferences in public employment. But whether the facts are as they have in this manner been affirmed to be on the part of the commissioner, or whether they are as they have been stated to be by the applicant and Mr. Rogers, cannot be so determined in his favor upon these affidavits as to justify the issuing of a peremptory mandamus. They have been brought into substantial controversy both as to the appointment of the applicant and the power to appoint him. And when that is the condition of the case presented, its truth cannot be determined by the court on affidavit, but must be tried upon an issue joined in the ordinary course of legal actions. - A peremptory mandamus is allowed to be issued upon motion supported by affidavits only when there is no dispute arising as to the fundamental facts upon which the right depended, and that is not this case. Where there is such a dispute as is here presented, the law requires that an alternative writ shall be first issued, upon the return to which the witnesses will be orally examined after an issue has been framed and the fact itself be ascertained upon which the right to the position is dependent. If that shall be found in favor of the applicant, then his restoration to this position will necessarily follow. But if the facts asserted in his behalf shall not be maintained, then the application must as surely fail.

The order made should, therefore, be reversed, with ten dollars costs and also the disbursements to abide the result, and a writ of alternative mandamus directed to be issued on behalf of the applicant to the commissioner of the department of street cleaning, requiring him to show why the applicant should not be restored to his position.

Lambert, J., concurs.


text:
    James Flynn, Resp’t, v. Emma Kennedy et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed November 13, 1891.)

    1. Partition—Costs.
    There is no authority for the insertion of costs in an interlocutory judgment in an action of partition. It is not until final judgment confirming the sale is rendered that the costs can be paid or distribution had.
    2. Same—Referee’s fees.
    On receiving the deposit on the purchaser’s bid the referee paid to the plaintiff’s attorney the costs which had been included in the interlocutory judgment, taking back a receipt from him by which he agreed to return the amount if the purchaser refused to complete. Subsequently the purchaser was relieved from the purchase and the referee was compelled to return the deposit. Held, that the referee had a right of action against the plaintiffs in the partition action for his fees for services performed and disbursements made in reference to the sale, but not for the costs which he so paid out before he was authorised by law so to do.
    Appeal from judgment entered upon report of referee.

      E J. Dooley, for app’lts ; E. H. Benn, for resp’t.
   Van Brunt, P. J.

The defendants in this action, by their attorney, brought an action in the supreme court for the partition of some real property in the city of New York. There was'no defense, and upon motion the plaintiff was appointed referee to take the necessary proofs and to report thereon whether there should be a sale or actual partition.

He took the proofs and made his report, which was confirmed, and he was then appointed referee to sell the land. He published the usual notices and such notices as the attorney for the plaintiffs directed, and paid the fees and expenses thereof, and in due time sold the land. On the day of sale and after the purchaser had paid over to the referee, as such referee to sell, ten per cent of the purchase money, he at the request and application of the plaintiffs’ attorney advanced or paid over to the attorney the amount of the costs, which in the interlocutory judgment of sale, had been improperly adjudged and awarded to the plaintiffs, and took a receipt from said attorney for said sum, which receipt contained the following language: “ Which sum I am to return to him in case the purchaser refuses to complete his purchase on or before the 2d of June, 1890.” The order confirming said sale and final judgment was made and entered in said action on the 22d of May, 1890 ; and such proceedings were had subsequently that on the 16th of October, upon the motion of the assignee of the purchaser, an order was made relieving said assignee from the bid and purchase made at such sale, and directing said referee to pay to the purchaser or his attorney, out of the moneys received by him upon said sale, the costs of the motion, the ten per cent paid on said sale, the auctioneer’s and exchange fees, and the amount of the expenses of said attorney on the examination of the title; and said order provided that, in the event that said referee had not sufficient funds to make said payment in full, then the plaintiffs in that action (the defendants in this action) were required to pay the balance of said sum so remaining unpaid by the referee.

On the 25th of October, 1890, the plaintiff, pursuant to such order, paid to the assignee of the purchaser said ten per cent which had been received by him. Thereupon this action was brought by the plaintiff herein against the plaintiffs in the partition action to recover back the costs paid by him to their attorney, the disbursements which had been made by him for publishing-notices, etc., and for his fees and commissions upon the sale, the defendants having denied liability for these sums ; upon consent the issues were referred to a referee who reported in favor of the plaintiff for the whole amount except his commission upon the sale, and from the judgment thereupon entered this appeal is taken.

We think that the referee was entitléd to his fees, having performed all the services under the interlocutory decree of sale which he was called upon to perform. He was also entitled to recover the expenses to which he was put for advertising, etc., they having been incurred at the request of the defendant’s attorney in the prosecution of the action to prosecute which he had been retained by them.

But we do not see upon what theory the costs which were paid to the plaintiffs’ attorney can be recovered back by the referee. It is true that the interlocutory judgment adjudged that the plaintiffs were entitled to costs, and the amount thereof seems to have been inserted therein, but this was entirely without authority under the Code.

By § 1579 of the Code it is provided that where final judgment confirming a sale is rendered, the costs of each party to the action, and the expenses of the sale, including the officer’s fees, must be deducted 4 from the proceeds of the sale and each party’s costs must be paid to his attorney, and by § 1580 the share of the party must be paid to him or his legal representatives and not to his attorney of record.

It is clear from the language of the section that it is not until final judgment confirming a sale is rendered that the costs can be paid, and it seems equally clear that such costs cannot be paid until the proceeds of sale are realized, because the provision is that they are to be deducted from the proceeds of sale, and after being deducted each party’s costs must be paid to his attorney.

Section 1577 determines what a final judgment in a partition suit is, It provides that if the sale is confirmed by the court, a final judgment must be entered confirming it accordingly, directing the -officer making it to execute the proper conveyances and take the proper securities pursuant to the sale, and also directing concerning the application of the proceeds of the sale.

Therefore, it seems to be clear that such a final judgment must contain a direction concerning the application'of the proceeds of the sale, and that no distribution can be made before..the entry of such a final judgment. If it is claimed that such a final judgment was entered in the case at bar because the sale was confirmed, it may be answered that the proceeds of sale had not been received as contemplated by the final judgment, and consequently there was nothing from which these costs and expenses could be deducted. We think, therefore, that the referee stands in the same relation towards these defendants as though he had not made these disbursements and was seeking to recover that which he was entitled to recover by reason of his relation to them in the partition action. For the disbursements which he had made in reference to the sale, and for his fees as referee for the services which he had performed, he had a right of action as against the defendants (the plaintiffs in the partition action). But for the costs, which he paid out before he was authorized by law so to do, we do not see how he has any claim against the plaintiffs therefor.

The plaintiffs had the right to contest the question as to whether their attorney was entitled to any compensation for his services, and they could not be deprived of this right by a premature payment of such costs to such attorney. That the referee looked to the responsibility of the attorney in reference to this payment seems to be shown by the language of the receipt, because it is a personal obligation upon the part of the attorney to return -the money in case the sale should not be completed.

Much as we would like to relieve the referee from the unfortunate position in which his good nature seems to have placed him, we do not see upon what principle a recovery for these costs paid by him without authority could be had.

We think, therefore, that the judgment must be reversed, and a new trial had, with costs to appellant to abide event, unless the plaintiff stipulates to reduce the judgment by the amount of such costs and, in case such stipulation is given, the judgment, as so reduced, should be affirmed, without costs.

Daniels and Ingraham, JJ., concur.


text:
    Henry Karst, Resp’t, v. George A. Gane et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed November 13, 1891.)

    1.- Chattel mortgage—Effect of failure to file.
    A chattel mortgage, the filing of which is delayed, is absolutely void as against all persons who are creditors of the mortgagor during the time of such delay, whether their debts were created before the execution of the mortgage or afterwards.

      2. Same—Endorsee op note.
    An endorsee of commercial paper, where the liability of the endorser has not become fixed, is not a creditor of the endorser as that term is used in the statute in relation to chattel mortgages.
    3. Same.
    Prior to the giving of a chattel mortgage the mortgagors had made several notes, some of which matured before, and some after, the mortgage was filed. They had also endorsed notes which matured before and after such filing. Judgments were recovered by plaintiff on all these notes. Held, that so far as the judgments rested on notes made by the mortgagors or endorsements upon which their liability became fixed before the mortgage was filed, plaintiff could maintain an action to remove the mortgage as an obstruction to his executions,but not so far as they rested on endorsements as to which the mortgagors’ liability was not fixed until after the filing.
    Appeal from a judgment at the special term.

      Samuel J. Crooks, for app’lts; Fred. W. Hinrichs, for resp’t
   Daniels, J.

The appeal has been brought upon the judgment roll alone. By the judgment executions which had been issued upon judgments in favor of the plaintiff and levied upon the personal property of the debtors were secured a preference over two chattel mortgages executed by the judgment debtors. These mortgages were made on the 25th of September, 1889, but were not filed until the 7th day of the following month of November. Prior to the execution of the chattel mortgages, Edward Barr and Herman 0. Miller, the mortgagors, made eight promissory notes, payable to the order of H. Miller, wÉo assigned and transferred them to the plaintiff. Five of these notes matured prior to the filing of either of the chattel mortgages, one matured on the same day, and the other two after the filing of the mortgages. And these notes were included in two judgments recovered by the plaintiff, upon which executions were issued and levied on the property described in the chattel mortgages.

The plaintiff also recovered three judgments upon notes made prior to the execution of the mortgages by Bedford, Clark & Co., payable to the order of the defendants, Edward Barr and Herman C. Miller, and by them endorsed to John Karst, and by him assigned and transferred to the plaintiff. Two of these endorsed notes became due before the filing of the mortgages and four of them afterwards. And executions were issued also upqn these judgments and levied upon the property described in and encumbered by the mortgages. The court held at the trial that these mortgages were void as against all the executions because of the failure of the mortgagees to file them, as that has been required by the statute. Upon this subject it has been provided that every mortgage or conveyance intended to operate as amortgage of goods and chattels, which shall not be accompanied by an immediate delivery and followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against subsequent purchasers and mortgagees in good faith, unless the mortgage, or a true copy thereof, shall be filed as directed in the succeeding section of the act. 3 R S., 6th ed., 143, § 9. But it was objected on behalf of the mortgagees that this section oí the statute was designed only for the protection of persons who became creditors of the mortgagors after the execution of the mortgages and prior to the time when they were filed. But the statute clearly has proceeded upon no such distinction, for it has declared the mortgage withheld from the files to be absolutely void as against the creditors of the mortgagor. Not the creditors who should become such between the time of the execution and the filing of the mortgage, but the creditors generally, including all persons sustaining that relation to the mortgagor during the time the mortgage is withheld from the files. If it had been intended to restrict it to those persons who should become creditors after the execution and before the filing of the mortgage, language to that effect might reasonably be expected to be found in the section. And its entire absence is a decisive circumstance against the construction which the objection taken requires to be given to the section.

The legislature were actuated by no such design as the intention appears in the law. But the design and intent was to render the mortgage, or mortgages, absolutely void as against all persons who should be creditors of the mortgagor during the time, whether their debts were created before the execution of the mortgage or afterwards. And that is the effect which has been given to the statute when this view of it has been brought before the courts for consideration. Thompson v. Van Vechten, 27 N. Y., 568, contains a concession that this construction should be given to the statute. And it was acted upon and followed in that form in Fraser v. Gilbert, 11 Hun, 634. And very decidedly in Clark v. Gilbert, 10 Daly, 316. There the mortgage was made on the 1st of April, 1880, and the debt included in the judgment upon which the creditor’s action was brought was for meats supplied the mortgagor from the 31st of May, 1877, to the 30th of April, 1880, and the judgment was recovered for the balance the 21st of December, 1880, while the mortgage was not filed until March 17, 1881, and it was held that this mortgage was void as against this creditor. The decision in this manner made is a direct authority in favor of the plaintiff in the present action so far as the judgments of the creditor were recovered upon notes made by the mortgagors, or upon endorsements which matured prior to the time of the filing of the mortgages. And the principle appears to have generally secured the approval of the court in Keller v. Paine, 107 N. Y., 83 ; 11 St. Rep., 330. There it was declared in very general terms that the omission to file the mortgage would render it void as against existing creditors. These cases conform to and carry out the language of the statute, and so far sustain the judgment from which the appeal has been taken as it proceeds upon notes made by the mortgagors, or endorsements upon which their liability was fixed prior to the time when the mortgages were filed on the 7th of November, 1889. And the plaintiffs having issued executions upon such judgments under which levies were made upon the property encumbered by the mortgages, were entitled to commence and maintain this action to remove them as obstructions from the executions as they to that extent stood in their way. Steffin v. Steffin, 4 Civ. Pro., 179 ; McElwain v. Yardley, 9 Wend., 549. But as to the endorsements upon which the liability of the judgment debtors had not become fixed at the time when the mortgages were filed, a different principle is required to be apjfiied. The case is not one where an actual intent to defraud existed in the disposition of property, which might very well be held to include the endorsee of commercial paper before an absolute liability became fixed, but it is that of a legislative principle applied to declare and define the effect of the omission to file the mortgages, as that was provided for and required by another section of the statute. The neglect to file would not necessarily involve bad faith or a fraudulent intent, but it was an omission to comply with the directions contained in the statute. And for that omission the law declared the property included in the mortgage to be liable to the outstanding demands of other creditors. But an endorsee of commercial paper, where the liability of the endorsers has not become fixed, is not, in the sense in which this term “ creditor ” has been used in this statute, a creditor of the mortgagor. For until the maker of the paper is in default no obligation is created by it against the endorser. The utmost effect of his contract is that he will pay the debt mentioned in the paper in case the maker fails to pay when it shall mature and a proper demand shall be made upon him for the payment, and notice of such demand and failure shall be given to the endorser. And it is only from the time when the paper shall become dishonored and the liability of the endorser fixed in this manner that he can, within the significance of this term as it is contained in this section of the statute, beheld to be a creditor of the mortgagor. As to this term “ creditor ” it was by the supreme court considered to include the case of a guarantor prior to the time of a default under its terms, in Jackson v. Seward, 5 Cowen, 67, That was a case where the judgment debtor had conveyed his property by what was alleged to have been a voluntary conveyance. Prior to the conveyance the grantor had entered into a guarantee that a certain judgment by him assigned was collectible. But after the conveyance executions were issued upon the judgment which failed to realize the amount recovered by it. And for that reason a judgment for the deficiency was finally recovered against the grantor in the conveyance, and an action brought by the creditor to set aside the deed as a voluntary conveyance. '

In the supreme court it was considered that this guarantee invested the party in whose favor it was created with the rights of a creditor prior to the delivery of the deed. And in the course of the opinion in that court it was said by the judge delivering it that The question of creditor, or not, cannot turn on the ground of contingent liability when considering this act. If it should, all endorsees and sureties would be deprived of its protection.” Id., 71. This proceeded very much upon the authority of the case of Jackson v. Myers, 18 John., 425. But the judgment in that case was recovered for a wrong, and by its recovery established the existence of the claim made by the plaintiff at the time when the wrong itself was perpetrated. While no such retroactive effect can result from the dishonored endorsement of commercial paper, but the liability of the endorser is created then and not prior to that time. The case already referred to was appealed, after the decision made by the supreme court, to the court of errors. And it was there held, as one of the grounds for the reversal of the judgment, that the party to whom the guarantee was delivered was not a creditor of the grantor in the deed at the time when it was made and delivered, but that he first became so when it turned out that the judgment could not be wholly collected by the executions and sales of property made to satisfy it. Seward v. Jackson, 8 Cowen, 406. And that certainly is an authority directly supporting the position that an endorsee under a statute of this description does not become a creditor of the endorsers until the paper endorsed is dishonored by the maker.

It was conceded there, as it has already been suggested, that where an actual intent to defraud existed a different principle could well be applied. But neither in that case nor in the present was that intent proved to be present as an element in the transaction. So far, therefore, as this judgment has proceded upon the notes endorsed by the judgment debtors, one of which became due on the 20th of November, 1889, another on the 17th of December, 1889, and another on the 30th of December, 1889, it has been erroneously directed. But as to the residue of the judgments the right of the plaintiff to maintain this action is well sustained by the statute and the authorities which have already been referred to.

The judgment, consequently, should be reversed, and a new trial ordered, with costs to the defendants to abide the event, unless within twenty days after notice of this decision the plaintiff stipulates to deduct the amount of these notes, with the interest upon them, from the judgment which has been recovered. And in case of the service of such a stipulation, then the judgment as modified should be affirmed, without costs to either party.

Lambert, J., concurs. .