author: Van Brunt, P. J. O’Brien, J.

text:
    Caroline B. Powers, Adm’rx, Resp’t, v. Francis W. Savin et al., Impl’d, App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 3, 1892.)

    1. Pledge—Evidence of title—Entries in books of account.
    In an action to recover the surplus realized from a sale of pledged stock over and above the amount of the pledge, in which it is claimed that the pledge was made without authority by a mere depositary, said stock actually belonging to plaintiff’s testator, statements in the alleged depositary’s books which were not original and contemporaneous entries, but merely copied by said depositary’s cashier from Stock Exchange slips or from having them read to him, after said depositary had made a general assignment for the benefit of creditors, are not competent to establish plaintiff’s title. (O’Brien, J., dissents.)
    3. Same.
    A pledgee is entitled to reimburse himself upon a sale of the pledge for payments made on the strength thereof, but not to a greater extent.
    3. Judgment—As between defendants—Code Civ. Pro., § 1304.
    Section 1304 of the Code of Civil Procedure does not permit one defendant to litigate a separate and distinct claim against a co-defendant which is not set up in the complaint, and with which plaintiff has no concern.
    Appeal from judgment entered on report of referee.

      Thaddeus D. Kenneson and Jno. Notman, for app’lts; L. C. Waehner and Louis O. Van Doren, for resp’t.
   Van Brunt, P. J.

This action was brought by the plaintiff claiming the ownership by her testator of 300 shares of Chicago, Milwaukee & St. Paul stock which had been pledged with other securities by the firm of O. M. Bogart & Co. without right or authority with the firm of Savin & Vanderhoof as collateral for a loan of $50,000, which securities were subsequently sold; and judgment is demanded for the surplus realized upon such sale over the amount of said loan.

Mr. Justice O’Brien in his opinion states the questions presented by the pleadings to be :

First. Had Hollis L. Powers, the plaintiff’s testator, title to the stock ?
Second. Did Bogart & Co., without his consent or authority or right, pledge such stock?
Third. Can the firm of Savin & Vanderhoof hold the stock or apply the surplus realized upon the sale thereof upon account of any other indebtedness due them from Bogart & Co., as against the plaintiff ?
Fourth. Is the defendant Wheeler upon the facts proven entitled to judgment for the surplus realized upon the sale of other securities pledged for a second or other loan made by the firm of Bogart & Co?

We concur in the conclusion arrived at by Mr. Justice O’Brien as to the third and fourth of these questions. In view of the conclusion reached by us as to the first, it is entirely unnecessary to decide the second. And we cannot concur in the conclusion arrived at by him as to the first.

It appears from the evidence that almost immediately after the pledge of the stock in question, Bogart & Co. made a general assignment for the benefit of creditors to the defendant Wheeler ; and the attempt is made to identify the St. Paul & Milwaukee stock pledged for the debt of Savin & Vanderhoof, as stock belonging to the plaintiff’s testator, by entries now appearing upon the loan book of Bogart & Co. And the determination of the question now under discussion depends upon whether such entries were admissible in evidence or not.

It appears that Bogart, Jr. sent the securities which were pledged to Savin & Vanderhoof, and made a memorandum of the loan on a stock exchange ticket called “ tickets,’’ which memorandum he testified was correct, and at the same time he made a memorandum on the loan envelope of the collaterals therein contained. These memoranda were the only memoranda made of the loan in the first instance. The slips were not produced upon the trial, but evidence was introduced showing that they were made for temporary purposes only, and that when entries were made therefrom into the books of the firm no attention was thereafter paid to them. There was no evidence that these particular memoranda had been lost, although there was some to the effect that a search had been made for them; and in response to a notice to produce, a statement was made by one of the attorneys that a search had been made for them, but they could not be found. It does not appear with certainty what was done with these memoranda. And there is no evidence as to what was put upon the slips; Mr. Bogart’s best recollection was that he placed them in an envelope, and that the envelope was with the books and was left for the cashier, Townsend, to enter in the loan book. Townsend remembers nothing about the original memoranda, although the entries were made by him in the loan book. Such entries were not made contemporaneously but after the failure of Bogart & Co., and after Townsend had come back from being absent, which he states might have been a week after the failure. Townsend testified that he either copied the memoranda from slips (temporary stock exchange slips) or that they were called off to him. And it does not appear that there was any other source from which he could get the entries.

As Mr. Justice O’Brien has shown, the learned referee states that the memorandum of entries on the envelope correspond with the entries in the loan book; and that in this a grave error was committed, because in that part of the entry which is most material to this action there is a fatal discrepancy; the entry on the envelope not containing the initials “ H. L. P., which appear opposite the entry in the loan book in relation to the 300 shares of St. Paul stock, and which it has been held to indicate that the stocks in question were the three hundred shares of St. Paul stock belonging to the plaintiff’s testator.

The evidence of this entry in the loan book is claimed to be admissible because of the rule laid down by the court of appeals as to the admission of account books in The Mayor v. Second Ave. R. Co., 102 N. Y., 572; 2 St. Rep., 526. But a brief examination of that case will show that the condition of the proof was entirely and essentially different from that which appears by the record in the case at bar. The case cited was an action by the mayor to recover from the Second Avenue Eailroad Company for work and labor and materials for which the railroad company was claimed to be liable. The work done and the materials furnished related to the pavement of the streets in and about the rails of the defendant’s railroad. In order to prove the time spent in the doing of this work, the plaintiff called as a witness the foreman who had charge of the work, under whom were two gang foremen ; each having charge of a separate gang of laborers. The chief foreman kept a time book in which was entered the name of each man employed. He visited the work twice a day, and while there took on the time book the time of each man as reported to him by the gang foreman, who did not see the entries; and also that he marked the men’s names as he saw them and knew their faces. The gang foremen testified that they correctly reported to the chief foreman the names of the men who worked; and if did not work full time they reported that fact also. And the main foreman testified that he correctly entered the reports in the time book as reported to him in the usual course of business each day. And it was held that with such evidence the books were admissible, because the gang foremen were testifying of their own knowledge as to the correctness of the reports made by them to the main foreman, and the main foreman testified that in this time book he correctly entered the reports as made to him.

Under such condition of proof the court held the evidence to be admissible, but in the case at bar the evidence was essentially different. In the first place, there is no evidence as to what Bogart, Jr., entered upon the slips, and in view of the fact of the entry upon the loan envelope, the presumption would seem to be that the letters “ H. L. P.” did not appear upon the slip. And further, the bookkeeper Townsend who made these entries had no recollection as to whether he entered them from the slips or from somebody who called them off to him. Therefore, we do not know that even what was upon the slips was entered in those books. The person who called off these entries is not produced, and there is a very decided link missing which was supplied in the case cited. And in view of the fact that it was claimed that the entries upon the slips and the envelope corresponded, the inference would be that as the letters “ H. L. P.” did not appear upon the envelope, they did not appear upon the slip, and Townsend must have got his information somewhere else. How, we do not know, except, perhaps, it may have been from the inspiration of this somebody who made the announcements to Townsend for entry, whether from the slips or not does not appear.

But Mr. Justice O’Brien has come to the conclusion that upon another principle these entries are admissible; viz., that they are declarations found in the books of Bogart & Co. against their interest in respect to the ownership of these 300 shares of stock. And attention is called to the rule laid down in Greenleaf on Evidence that “ there are two classes of admissible entries, between which there is a clear distinction in regard to the principle upon which they are received in evidence; and one of the Masses consists of entries made against the interests of the party making them; and these derive their admissibility from this circumstance alone. It is not, therefore, material when they were made. The testimony of the party who made them would' be the best evidence of the fact; but if he is dead, the entry of the fact made by him in the ordinary course of business and against his interest is received as secondary evidence in a controversy between third persons.” And attention is also called to the case of Adams v. Bowerman, 109 N. Y., 23; 14 St. Rep., 43, where the entries in a firm’s books as to its solvency were admitted for the purpose of proving the insolvency of that firm in an action to which they were parties.

How, it seems to us that .this principle has no application whatever to the case at bar. If Bogart & Co. were suing here, or were the defendants in this action, it is possible that the principle might apply, but probably not, as the person who made the entries is alive, but in the present case the party making the entry is not only alive, but upon being called shows that he knew nothing about the facts to which the entry related. But when we take into consideration the fact that these books were not Bogart & Co.’s books at this time, and that they were being written up that the assignee might ascertain the condition of the estate of which he was the assignee, it is clear that such entries were not made in the ordinary course of business, and that the title of Bogart & Co. to this stock could not be impeached or impaired thereby. It is no duty of an assignee to confess judgment or to make admissions in reference to the labilities of his assignors, which would be the result of the admission of an entry of this description.

In the face of the evidence showing the circumstances under which this entry was made, showing that the party who made it had' no knowledge whatever of the transaction, showing that a material part of the entry, as far as this case is concerned, seems to have been evolved out of his own imagination, it certainly cannot be the law that upon such an entry the title of property can be disposed of.

We think, therefore, that it was error to admit these entries in evidence, and because thereof the judgment must be reversed and a new trial ordered before another referee, with costs to appellant to abide the event.

Andrews, J., concurs.

O’Brien, J.

(dissenting)—This action was brought by plaintiff, claiming that her testator was the owner of three hundred shares of stock of the Chicago, Milwaukee & St. Paul Railroad, which, without right or authority, were pledged by the firm of O. M. Bogart & Co., with whom said shares were deposited, with the firm of Savin & Vanderhoof as collateral with other securities for a loan of $50,000, which securities were subsequently sold, and the judgment demanded is the surplus realized by the sale of the pledged property over the amount advanced by the said pledgee to the pledgors thereof, O. M. Bogart & Co. The latter firm, almost immediately after the pledge of the stock in question, made a general assignment for the benefit of creditors to the defendant Wheeler.

The questions presented by the pleadings were, first, had Hollis L. Powers, plaintiff’s testator, title to the stock ?

Second. Did 0. M. Bogart & Co. without his consent and authority or right, pledge such stock ?

Third. Can the firm of Savin & Yanderhoof hold the stock or apply the surplus realized upon the sale thereof upon account of any other indebtedness due them from O. M. Bogart & Co., as against the plaintiff ?

Fourth. Is the defendant Wheeler upon the facts proven entitled to judgment for the surplus realized upon the sale of other securities pledged for a second or other loan made by the said firm of Bogart & Co ?

The evidence, we think, establishes the fact that if competent proof was presented to prove Powers’ title to the stock, the referee was justified in concluding that the same was pledged by Bogart & Co. without right or authority.

In respect to the right of Savin & Yanderhoof to apply the surplus to any other indebtedness than the specific loan made on the faith of the securities, this question has been settled by this court upon the former appeal, holding that they were “ entitled to reimburse themselves for payments made on the strength thereof, but not to a greater extent.”

The solution of the question as to whether the defendant Wheeler was entitled to a judgment for the surplus realized upon the sale of the securities pledged for the second loan must depend upon whether or not in this action the rights as between the defendants to such surplus can be determined.

Section 1204 of the Code of Civil Procedure provides: Judgment may be given for or against one or more defendants. It may determine the legitimate rights of the parties on the same side, as between themselves; and it may grant to a defendant any affirmative relief to which he may be entitled.”

In construing this section it has been held that a defendant cannot tender an independent issue between himself and a co-defendant which is not raised by the complaint. Lansing v. Hadsall, 26 Hun, 619; Payn v. Grant, 23 id., 134; Hall v. Ditson, 5 Abb. N. C., 198; 55 How. Pr., 19. The complaint alleged that Powers had in the custody and possession of Bogart & Co., who were bankers and brokers engaged in business in this city, three hundred shares of St. Paul stock and that, without his knowledge and consent, they pledged the said stock, together with other stock of the defendants, to Savin & Yanderhoof for a call loan of $50,000. It appeared by the evidence that the surplus realized over and above the amount of the loan of $50,000 upon the sale of the collateral was $4,300, and it was to reach this sum that the plaintiff brought this action. The evidence, however, showed, as the amended answer of the defendant Wheeler alleged, that there were two separate and distinct loans of $50,000 made by Savin & Yanderhoof to Bogart & Co. upon entirely different securities, and that the stock claimed by Powers was included in the collateral pledged as security for the first loan of $50,000. It appeared that there resulted from the so-called first loan, tor which the plaintiffs’ securities were pledged, a surplus of $4,300," and from the second loan the sum of $3,518.75 ; and it is for this latter amount upon the evidence that the defendant Wheeler, as assignee, insists that be is entitled to a judgment.

We do not think that the independent claim for which the defendant Wheeler may have a cause of action against Savin & Yanderhoof, which is entirely independent and in no way connected with the demand of the plaintiff, can be litigated or the rights of the parties determined in this action. The contest between the latter firm and Wheeler over the surplus on the second loan has no connection whatever with the contest waged between the plaintiff and the defendants over the surplus on the first loan. The subject matter in both suits is entirely separate and distinct and we do not think that § 1204 was intended to give any such right as to permit one defendant to litigate a separate and distinct claim which he might have against another co-defendant with respect to a matter with which the plaintiff has no concern, and with reference to which no allegation is contained in his complaint.

Another position taken by the defendant Wheeler has already been disposed of adversely upon the former appeal, namely, that plaintiff’s testator would only be entitled to such proportion of the surplus arising out of the loan in which his 300 shares of St. Paul stock entered, as the proceeds of such stock on sale bore to the whole value of all the securities in that particular loan.

This leaves us to briefly consider the first, most important and, upon the evidence, the most difficult question presented, as to whether the evidence offered to support proof of plaintiff’s title to the stock was competent.

The title to such stock may be said to rest mainly, if not entirely, upon entries from the loan book of O. M. Bogart & Co., which if competent with the other evidence in the case would be sufficient to justify the conclusion reached by the referee; but the absence of such entries from the record would necessitate the conclusion that the burden placed upon the plaintiff of proving title had not been sustained. The testimony bearing upon such entries shows in brief that Bogart, Jr., who sent the securities to Savin & Yanderhoof, made memoranda of the loans on a stock exchange ticket called “ tickets,” which memoranda he testified were correct ; that these memoranda on the tickets or slips were the only memoranda made of the loans in the first instance.

These memoranda were not produced upon the trial, the evidence showing that they were made for temporary purposes only, and that when entries were made therefrom into the books of the firm no attention was thereafter paid to them. These particular memoranda were not shown, however, to have been lost, although evidence was given that a search was made, for them, and in response to the notice to produce, a statement was made by one of the attorneys that a search had been made for them, but they could not be found.

It nowhere appears that these memoranda were handed to the bookkeeper, and that the entries in the books objected to were copied therefrom. Bogart, Jr., stated that he had no present recollection of what he put on the slips; nor does he know whether they came into the possession of Mr. Townsend after he made them, and who it is conceded made the entries in the book. His best recollection was that he placed them in an envelope, and that the envelope was with the books, and that they were so left for the cashier, Townsend, to enter in the loan book. Townsend remembers nothing about the original memoranda, and his testimony shows that the entry by him in the loan book was not made contemporaneously, but was made after the failure of Bogart & Co., and after Townsend had come back from being absent, which he states might have been a week after the failure.

The referee in stating his reason for the admission of this loan entry in evidence, so far as the facts for its admission were concerned, summarizes them quite correctly.

“ The testimony seems to me to show that Mr. Bogart made slips of the transaction and that the slips cannot now be produced; that he had charge of the negotiation of the loans and that slips were made in the usual course of business, and at the same time he made a memorandum on the loan envelope of the collaterals therein. The transaction is entered in the loan book of O. M. Bogart & Co. in Mr. Townsend’s handwriting, and the loan book is shown to be the loan book of O. M. Bogart & Co., and that the memorandum on the loan envelope, made at the time of the transaction, corresponds with the entry in the loan book in Mr. Townsend’s handwriting. Mr. Townsend testifies that he either copied the memorandum from slips (the temporary stock exchange slips), or that it was called off to him, and it does not appear that there was any other source from which Mr. Townsend could get the entries. In others words, there is no evidence to show that there was any other memorandum except Bogart’s slips from which Mr. Townsend could have made the entry in the loan book and the memorandum or entries on the envelope correspond to the entries in the loan book.”

It should be remembered however in this connection that the correspondence between the memorandum on the loan envelope and the entry in the loan book is not complete.

In the loan book entry at the left of the “ Three hundred St. Paul ” are the initials H. L. P,” which it was testified were the initials of and stood for Hollis L. Powers, and were set opposite to this entry to indicate that the three hundred St. Paul stock belonged to him; and it is upon this entry that the proof of the title to this stock being in Hollis L. Powers depends. Upon the loan envelope sent to Savin & Vanderhoof the three hundred St. Paul stock is mentioned, but there is nothing thereon to indicate either by the letters H. L. P., or by any other initials or mark, to whom such stocks belonged. This evidence the respondent claims is admissible upon the rule laid down by the court of appeals as to the admission of account books in the case of The Mayor v. The Second Ave. R. R., in 102 N. Y., 572; 2 St. Rep., 526.

A reading of the opinion in that case will show that the court was impressed with the view that it was extending the rule as to cases in which account books in favor of the party will be admitted ; and solely upon the facts in that case appearing, such evidence was held to be competent

It is unnecessary for us, in view of the conclusion at which we have arrived, to point out the distinction appearing in regard to the facts in that case and the one at bar, which we think are sufficiently clear and distinct as to justify the view, were it not for another principle which we think applicable to such evidence, that it should not have been received because incompetent. In other words, had the evidence in this case objected to been entries in favor of Bogart & Co., which was the question presented in The Mayor v. The Second Ave. R. R. Co., supra, it would have been error to receive such entry. Here, however, the entry is resorted to by the pi aintiff, and is relied upon as a declaration against Bogart & Co. in respect to the ownership of these 800 shares of stock ; and as whatever rights the defendants can assert were derived from Bogart & Co., they are equally admissible against such defendants.

In G-reenleaf on Evidence, Redfield’s Ed., page 144, it is said: “ There are two classes of admissible entries, between which there is a clear distinction in regard to the principle on which they are received in evidence. The one class consists of entries made against the interest of the party making them ; and these derive their admissibility from this circumstance alone. It is, therefore, not material when they were made. The testimony of the party who made them would be the best evidence of the fact; but if he is dead, the entry of the fact made by him in the ordinary course of his business, and against his interest, is received as secondary evidence in a controversy between third persons.”

This distinction between entries in favor of and entries against the person in whose books' the entries are made finds support in the case of Adams v. Bowerman, 109 N. Y., 23; 14 St. Rep., 43, where in an action against a sheriff for an alleged unlawful taking, the latter justified under process against the firm from which plaintiffs acquired title, alleging that said firm acquired title by purchase on credit induced upon false representations as to its solvency; and it was held that the books of the firm were proper evidence against plaintiff upon the question of solvency and knowledge thereof on the part of the members of the firm, and that the rejection of such evidence was error. This case we regard in principle as applicable to the question here presented.

The title or right of the defendants to these 300 shares of stock were derived through Bogart & Co., and entries in their account books, if shown to have been made in the regular course of business, even though not contemporaneous, would be admissible, not in their favor, but as against them and those claiming under them.

The suggéstion that upon the facts appearing these entries were made after the failure and when the firm had ceased to do business, we regard as being without force, for the reason that in connection with that fact it appears that subsequent to the failure the bookkeepers of Bogart & Co. were for some days engaged in making up and balancing the same with a view of determining the status of that firm, and the entries objected to were made in the course of such business.

Where a failure occurs and matters relating to the business of the failing individual or firm are not entered upon their books, it is customary in the ordinary course of business to have such matters and entries relating thereto inserted for the purpose of determining the condition of the firm. We think, therefore, that the referee correctly ruled in admitting such entry.

It is unnecessary for us, in view of the former appeal, and the facts appearing upon the two trials, to advert further to the law or facts which control many of the subsidiary questions raised upon this appeal, it being sufficient after having disposed of the principal questions presented by this appeal to say, that after an examination of the voluminous record, and the other objections made to the affirmance of the judgment, we do not regard any of them as well taken, and our conclusion is that the judgment appealed from should in all respects be affirmed, with costs.

Judgment reversed and new trial ordered before another referee, with costs to appellant to abide event


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    James Baker, Resp’t, v. Edward F. Brown, Impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 3, 1892.)

    Interpleader—Former adjudication.
    The complaint in an action of interpleader alleged the levy of an attachment upon the interest of a legatee in an estate held by plaintiff as executor, the recovery of judgment in the action in which it was granted, and a partial payment by him on the execution issued thereon; that thereafter he accounted and a certain sum was directed by the surrogate to be paid to the administrator of said legatee; that defendant claims said sum as assignee of the administrator, and the sheriff also claims it under the attachment. and asked that they interplead. Held, that there having been an adjudication by the surrogate’s court as to the persons to whom this sum was to be paid, it was binding on plaintiff and he could not seek an interpleader.
    Appeal from judgment and order overruling demurrer interposed by the defendant Brown to a complaint in an action brought to interplead the defendants.

      G. S. Hamlin, for app’lt; A. S. Hutchins, for resp’t.
   Van Brunt, P. J.

The complaint alleges that in or about the year 1882, in an action then pending in the supreme court in which one Joseph E. Dewey was plaintiff and one Harriet 0. Gilbert and another were defendants, an attachment was duly issued out of the supreme court directed to the defendant Peter Bowe, as sheriff of the city and county of New York, directing and requiring him to attach the property of the defendants, which attachment was duly served upon this plaintiff; that at the time of the issuing and serving of said attachment the said Gilbert was interested in the estate of one James Baker deceased, as one of the legatees under his will, and that at that time there was in the hands of the plaintiff certain moneys and property to which she was entitled as such' legatee, which moneys and property were the property attached; that thereafter in March, 1886, Dewey duly recovered a judgment against the defendants Gilbert and another for the sum of $3,758.23, which was duly docketed and an execution duly issued directed to the sheriff, which execution was duly served upon the plaintiff, who thereupon paid to said sheriff, in partial satisfaction of said judgment, the sum of $691.64, being the amount of money forming part of said estate then in his hands to which said Gilbert was entitled as legatee, and that the said attachment has never been vacated by the cancellation thereof, nor has the interest of said Gilbert in the estate of James Baker, deceased, been released from the operation thereof; that afterwards and before the final accounting of the plaintiff as executor, the said Gilbert died, and one H. 0. Ditmar was duly appointed administrator with the will annexed of said Gilbert, by a court having jurisdiction thereof in the county of Fond du Lac, in the state of Wisconsin, and thereafter upon the application of said Ditmar ancillary letters of administration were duly issued to said Ditmar by the surrogate of the city and county of New York.

The complaint further alleged that on the 24th of March, 1891, the plaintiff, as sole surviving executor and trustee of said Baker, deceased, made and filed in the office of the surrogate of the city and county of New York his final account, and that thereafter such proceedings were had that an order was made and entered in said court whereby his accounts as such executor and trustee were finally settled and allowed, and in and by said order it was decreed that out of the moneys then remaining in his hands as such executor the sum of $589.76 should be paid to said Ditmar, as administrator with the will annexed of said Gilbert, deceased.

The complaint further alleged that the defendant Edward F. Brown claims said sum as assignee of said Ditmar, and that for the purpose of enforcing payment to him of said sum has caused to be issued out of the surrogate’s court an execution directed to the sheriff, etc., requiring him to levy and collect the same out of the property of the plaintiff in this county.

The complaint further alleges that the defendant, Peter Bowe, as late sheriff, etc., to whom said warrant of attachment was issued and directed, also claims the said sum of $589.76, and demands that the same shall be paid to him upon the execution issued to satisfy the aforesaid judgment in favor of said Dewey.

The complaint then alleges that the plaintiff is ignorant of the respective rights of the defendants, has no claim upon such money, and is ready to deliver it to such persons as the court shall direct, and that the action has not been brought by collusion with the defendants, and prays judgment that defendants be restrained by injunction from taking any proceedings against plaintiff in relation thereto; that the defendants be required to interplead, and that the plaintiff be permitted to pay the money into court, and upon payment thereof into court he be discharged from all liability.

To this complaint the defendant Brown demurred, upon the ground that it appears upon the face of the complaint that it does not state facts sufficient to constitute a cause of action. This demurrer was overruled, and from the judgment thereupon entered this appeal is taken.

It is urged upon the. part of the respondent that there being rival claims to the fund, and the respondent being liable to be doubly vexed, and in danger of double payment, and himself making no claim to the fund in dispute, a proper case for an interpleader is presented.

This undoubtedly would be true had it not been adjudicated by a. court of competent jurisdiction as to how the money in the hands of the plaintiff as executor and trustee should be paid. Upon an accounting before the surrogate, with the attachment and execution held by the defendant Bowe existing, an adjudication has been made that the executor pay to the administrator of Gilbert, deceased, the said sum of money.

Under these circumstances, we do not see how a bill of inter-pleader can lie. If the executor intended to dispute the right of the administrator of Gilbert to receive the money in question, he was bound to present the claim there and have it adjudicated upon. He was aware of the circumstances of this attachment, the fact of its existence, of its levy, of the claim made by the sheriff, and these facts he should have presented to the surrogate in order that the surrogate might have made the proper order. But, instead of that, as far as this record shows, a decree has been permitted to be entered directing the payment of this money, and the surrogate has directed an execution to issue for its collection.

It seems to us that it is too late after judgment and execution to ask for an interpleader; and that is the position of the plaintiff in this action. It does not appear that any attempt whatever was made upon the part of this executor to bring in the other claimant of the fund adjudged to belong to the administrator of Gilbert. But with full knowledge of the facts, and of the claim made, upon the part of the sheriff to this fund, in hostility to the representatives of Gilbert, he has permitted the surrogate to make his decree directing its payment to such representatives. We are of opinion therefore that there having been an adjudication as to the persons to whom this share was to be paid, it is binding upon the plaintiff, and he cannot now seek an interpleader.

The judgment and order appealed from should be reversed, and the demurrer sustained with leave to the plaintiff to amend his complaint upon payment of the costs of this appeal and of the court below.

Barrett and O’Brien, JJ., concur.


text:
    Philip Schuyler, Resp’t, v. Ernest Curtis et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 3, 1892.)

    1. Injunction—Statue of deceased person—Right of privacy.
    An injunction against the erection of a public statue may be granted at the suit of the person intended to be represented thereby, whether a public character or not, or if dead, at the suit of his or her relatives.
    2. Same.
    The fact that the plaintiff, a relative, will not be injured pecuniarily is no defense to an action for such injunction.
    Appeal from order continuing injunction.

      Walter S. Logan, for app’lts; J. P. Ludlow, for resp’t.

       Affirming 40 St. Rep., 289.

   Van Brunt, P. J.

The plaintiff is the nephew and stepson of one Mrs. G. L. Schuyler, and the defendants, with the exception of the defendant Hartley, are the officers and members of an unincorporated association which they call the Womens’ Historical Fund Association.

This association having announced the project of placing a life-size statue of Mrg. Schuyler, to be designated “ The Typical Philanthropist,” on public exhibition at the Columbian Exposition to be held in Chicago in 1898, and having announced that a contract had been made with the defendant Hartley, a professional sculptor of some reputation, for the execution of this statue, and having undertaken to raise money by public subscription for this purpose, this action was brought by the plaintiff, representing, and with the approval of all the nearest relatives of the said Mrs. Schuyler, to enjoin the execution of this project; and a motion was made for an injunction pendente lite, which was granted upon the ground that the said Mrs. Schuyler was not a public character; i. e., had not placed herself before the public either in accepting public office, or in becoming a candidate for office, or as an artiste or litterateur a, and from the order thereupon entered this appeal is taken.

While concurring with the conclusion arrived at by the learned justice below, I cannot subscribe to the doctrine which seems to pervade the opinion rendered upon the decision of the motion, that if Mrs. Schuyler had been a public character, as defined by him, this motion should have been denied.

The claim that a person who voluntarily places himself before the public, either by accepting public office, or by becoming a candidate for office, or as an artist or literary man, thereby' surrendered his personality while living and his memory when dead to the public, te be used or abused as any one of that irresponsible body may see fit', cannot for a moment be entertained. It is undoubtedly true that by occupying a public position, or "by making an appeal to the public, a person surrenders such part of his personality or privacy as pertains to and affects the position which he fills or seeks to occupy. But no further. And certainly his memory when dead does not necessarily thereby become public property.

It is urged upon the part of the appellant that even if Mi’s. Schuyler were alive, and had the same objection to the defendants’ proposed action that the plaintiff now has, she would be remediless and powerless. If such were the fact it would certainly be a blot upon our boasted system of jurisprudence that the courts were powerless to prevent the unwarranted doing of things by persons who are mere volunteers ikdiich would wound in the most cruel manner the feelings of many a sensitive nature.

' It is further urged that the plaintiff has no standing in court; and that the fancied injury to the plaintiff complained of, if any such injury can be in any way discovered, is certainly not such an injury as the court will grant an injunction to prevent; because it is not an injury to his person, to his estate, or to his good name, and is not a violation of his privacy or seclusion ; and because the plaintiff stands in the same relation to the defendants and to their project as does all the rest of the world, and in no other relation.

The result of this claim is that when a person is dead, there is-no power in any court to protect his memory, no matter how outrageously it may be insulted. The feelings of relatives and friends may be outraged, and the memory of the deceased degraded with ■impunity by any person who may. desire thus to affect the living.

It seems to us that such a proposition carries its own refutation with its statement. It cannot be that by death all protection to the reputation of the dead, and the feelings of the living in connection with the dead, has absolutely been lost. The memory of . the deceased belongs to the surviving relatives and friends; and such relatives have a right to see that that which would not have been permitted in respect to the deceased when living shall not be done with impunity when the subject has become incapable of protecting himself.

It is undoubtedly true that cases of the character now before the court are not to be found in the books. But it is probably the first time in the history of the world that the audacious claim which is here presented lias ever been advanced. If it had, we have no doubt the books would have contained a record in connection with the same.

The fact that the plaintiff has suffered no pecuniary damage, redress for which is sought in this action, is no answer to the application, because one of the most important departments in the jurisdiction of courts of equity is the prevention of wrongs-which would be otherwise irreparable because courts of law cannot afford any remedy in damages.

The order appealed from should be affirmed, with costs.

Barrett, J., concurs.


author: Herrick, J.

text:
    Annie I. Dawson, Trustee, Pl’ff, v. John D. Parsons et al., Def’ts.

      (Supreme Court, Special Term, Albany County,

      Filed July 11, 1892.)

    1. Partnership—Rights of survivor.
    While the surviving members of a copartnership have the legal, title to-the firm property and the right to dispose of its assets, they only have the title and right of disposition for the purpose of closing up the partnership business, not for the purpose of continuing it.
    3. Same.
    When it is apparent that the surviving member or members are conducting the business, not for the purpose of closing it up, but to expand, enlarge and continue it, and when there are charges of mismanagement and depreciation of the property and the survivor is deriving a large income from the business and the legal representatives of the deceased partner none, the court will interfere and appoint a receiver to wind the business up.
    Application for the appointment of a receiver of the firm of Weed, Parsons & Co.

      E. J. Meegan and J. H. Clute, for pl’ffs; N. C. Moak, for def’t Parsons; Hamilton Harris, for Nancy M. Dawson; James F. Cooper, for Caroline E. Ten Eyck.
   Herrick, J.

J.—Heretofore there existed'in the city of Albany a copartnership doing business under the firm name of Weed, Parsons & Co., consisting of Thurlow Weed, Philip Ten Eyck, George Dawson and John D. Parsons.

Apart from the real estate said partnership was divided into forty shares or parts, of which Thurlow Weed owned five .shares, George Dawson fourteen shares, Philip Ten Eyck seven shares, and the defendant John D. Parsons fourteen shares; the profits and losses of the said copartnership were to be divided and borne in the proportion of the respective shares or parts.

In March, 1878, Thurlow Weed sold and transferred his interest tó Thurlow Weed Barnes. In February, 1883, George Dawson died intestate, leaving him surviving the plaintiff, his widow, Nancy M. Dawson and his son Burret S. Dawson, his only next of kin and heirs at law; letters of administration upon the estate of George Dawson were duty issued to Nancy M. Dawson, .administratrix, and Hamilton Harris, as administrator. In June, 1883, the said administratrix and administrator presented their final account to the surrogate of Albany county, which was passed and allowed, and a decree to that effect entered in the surrogate’s court In and by that decree it was adjudged that the interest of the said George Dawson in the copartnership of Weed, Parsons & Co. be divided between Burret S. Dawson, his son, and Nancy M. Dawson his widow, by giving nine and one-third fortieths interest of said copartnership property to Burret S. Dawson, and four and two-third fortieths to Nancy M. Dawson; and such interests were transferred to them accordingly.

Such proceedings were afterwards had that the interest of Burret S. Dawson in said copartnership and real estate was transferred to the plaintiff, as trustee.

That in November, 1886, the interest of said Thurlow Weed Bames in said copartnership was negotiated for by the defendant, Parsons, and purchased, as is stated, for the benefit of those interested in said, concern. Notes were given in the name of Weed, Parsons & Co. for the interest of said Thurlow Weed Barnes, to the amount of $20,000, which notes have been paid from time to time, until now there remain but two outstanding, one for the sum of $1,500, and one for the sum of $2,000.

On the 23rd day of March, 1891, Philip Ten Eyck died, leaving a last will and testament, wherein Caroline E. Ten Eyck was named executrix of his estate, which will has been duly admitted to probate by the surrogate of Albany county.

The defendant, John D. Parsons, seems for many years to have-been the managing man of the said copartnership, and to have received a salary for his services, in addition to his share of the profits, such salary from 1871 to the year 1884 being the sum of some $2,600 per year. In 1884 the defendant Parsons claims that an arrangement was entered into between himself and those interested in the copartnership business, by which he was to receive $7,000 per year for his services, and he has since been drawing that salary. The plaintiff alleges that she never authorized or consented to any such agreement. The son of the defendant John D. Parsons is also employed at a salary of about $3,000 per year, and a son-in-law at a salary ranging from $10 a week in May, 1891, when he entered such employment, to $20 a week since March, 1892.

The business of said copartnership was, and continues to be, great in value and very large in amount, necessitating the use of a large plant and the employment of much capital. Since the death of George Dawson it does not appear that any effort has been made to close up the business, but rather to continue and expand it; new presses have been bought at large expense, and, as before stated, the interest of Barnes purchased for the benefit of the remaining persons in interest. In 1871 the building and plant of the firm were practically destroyed by fire, and to rehabilitate the concern about $160,000 was borrowed, some $60,000-being advanced by individual members of the firm, $15,000 thereof by the defendant Haney M. Dawson. $104,000 of that, amount was still due at the time of the death of George Dawson.

Since his death over $37,000 of such indebtedness has been paid to Haney Dawson, Annie I. Dawson, Philip Ten Eyck and his executors, Thurlow Weed and his transferee and John D. Parsons, in addition to the interest upon the respective loans to the firm.

Hothing has been paid to any of the partners, or persons holding the interest of partners, on account of the earnings or profits of said firm since the death of George Dawson, except a weekly-allowance that was paid for" a time to the plaintiff, and which has amounted in the aggregate to some $6,200. Such weekly payments ceased some time since.

The copartners, in addition to the personal property of the firm, owned real estate which is claimed by the plaintiff to be of the assessed value of over $100,000 and its actual value much larger; in which real estate she is entitled to a two-fifth interest. The value of the real estate as claimed by the plaintiff is denied by the defendants. But the defendants do not assert what its real value is.

In some respects the business of the concern has been conducted •since the death of George Dawson and since the death of Philip Ten Eyck as if the partnership still continued, the personal reprentatives of such deceased copartners taking, their place in the co-partnership. The business has been carried on in the old firm name, and suits have been brought against debtors of the concern wherein Thurlow Weed Barnes, Nancy M. Dawson and Burret •S. Dawson were joined with Parsons and Ten Eyck as parties plaintiff. And it is claimed and alleged and not denied by the defendants that much new business has been secured, and new contracts entered into, and that none of the business now being •done was on hand and none of the contracts for business now existing were in existence or executed prior to the death of George Dawson.

The plaintiff claims and alleges that the defendant John D. Parsons is continuing and managing and controlling said business for his own benefit and that of his family; that the piroperty of the firm has greatly depreciated, and is still depreciating in value; that she is not, and has not for a long time past been receiving anything from the business, and that she can obtain nothing from the defendant. And she asks for an accounting and the appointment of a receiver, and that the business of the late copartnership be wound up. The defendants Nancy M. Dawson and Caroline E. Ten Eyck also ask for an accounting, but, together with the defendant Parsons, protest against the appointment of a receiver, claiming that it will be ruinous to the interests of the concern. The defendant Parsons claims that he is entitled to the legal custody and control of the business and property of the late firm as surviving partner, and that he be permitted to close up said business without any interference upon -the part of the court.

Various matters have been discussed upon this motion which I ■deem unnecessary for me to touch upon, or express any opinion in regard to, at this time, as they will be passed upon on the trial of the case. There can be no question but that upon the death of one member of a copartnership the surviving members become the legal owners of the assets, and have the exclusive right to manage and dispose of them in closing up the affairs of the copartnership. Williams v. Whedon, 109 N. Y., 333; 15 St. Rep., 265; Durant v. Pierson, 124 N. Y., 444; 36 St. Rep., 463. While the surviving owners of a copartnership have the legal title to copartnership property and the right to dispose of its assets, they only have the title and right of disposition for the purpose of closing up the copartnership business, not for the purpose of continuing the business. They cannot keep possession of the property indefinitely.

The legal representatives of the deceased copartners have a right to an accounting by the survivors and payment over to them of their proportionate share of the assets afterpayment of the firm debts. However strong may be the desire of the surviving partners to continue the business, the legal representatives of the deceased partner have a right to have the business closed up within a reasonable time, and the capital .belonging to them cannot be continued in the business to gratify the desire or promote the interests of the surviving members, and while under ordinary circumstances the court will not interfere with the control of the copartnership property by its surviving members, or with their management of the firm assets, yet it seems to me that it must be self evident that there must be power in the court at some time to interfere and cause a final settlement of the copartnership business ; and when it is apparent that the surviving member or members of a copartnership is conducting the business, not for the purpose of closing it up, but to expand, enlarge and continue it, that it then becomes proper for the court to interfere.

It is now over nine (9) years since the copartnership of Weed, Parsons & Co. was dissolved by the death of George Dawson, and over a year since the death of Philip Ten Eyck, and the papers used on this motion on behalf of the defendants disclose no efforts to close up the business, but on the contrary efforts to continue and increase it, and the expenditure of money and the incurring of obligations for that purpose.

The arguments by counsel before me against the appointment ■of a receiver have been largely upon the ground that such action would injure the business of the concern, and proceeded upon the .assumption that the business was to be, and should be, continued indefinitely. It may be that it would be better for all concerned that the business should be continued, but neither the defendants nor the court can coerce the plaintiff into leaving the property of which she is the trustee remaining in the business to take all its risks and hazards. And when as in this case there are charges which cannot be determined on a motion, of mismanagement, of depreciation in the value of the property, and when the survivor is deriving a large income from the business, and the legal representatives of the deceased partner none, I do not think the court would be justified in withholding its aid in bringing about a speedy settlement of the copartnership business.

If by the manner in which the business has been conducted the plaintiff has in fact become a partner with the defendants, still she is entitled to have such partnership terminated, is entitled to an accounting and for the purpose of having the business closed up to the appointment of a receiver for that purpose.

If the defendants desire the business to be continued provision may be made for that purpose.

Let therefore an order be entered appointing a receiver of the property and effects of the late firm of Weed, Parsons & Co., as asked for by the plaintiff, and restraining the defendant, John D. Parsons, from further conducting or interfering with the business or property of said copartnership, unless on or before the 19th day of July, 1892, he execute a bond in the sum of $60,000, with two or more sureties, to be approved by a justice of this court, conditioned to pay the plaintiff any sum found to be due her upon the trial and accounting to be had in this action. Costs of this motion to abide the event of the action.

The order is granted without prejudice to the right of the plaintiff in the future to apply for the appointment of a receiver absolutely.


author: Lewis, J.

text:
    Thomas Pitts et al., App’lts, v. Philip W. Scribner, Def’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Attachment—Proof of junior attachment.
    On application to vacate an attachment, made hy a junior attaching creditor, proof by affidavit of the issuing of an attachment in the action of the junior creditor by a justice of the supreme court, its levy subsequent to that of the attachment in question, and service of copy attachment, summons, complaint, affidavit and undertaking on defendant, to which is annexed a copy of the attachment containing recitals that a cause of action is shown by the complaint, is sufficient prima faeie to show an interest in or lien upon the property in favor of the moving creditor. The attachment having issued out of a court of general jurisdiction, must be presumed to have been made upon adequate papers.
    Appeal from an order of the Erie special term granted December 22, 1891, vacating and setting aside a warrant of attachment in the above entitled action issued October 23, 1891.
    The motion was made by the Detroit Lumber Company, a subsequent lienor under an attachment granted October 30, 1891, in an action in favor of the lumber company against the defendant Scribner.

      Spencer Clinton, for app’lts; Payne & Dunkleberger, for the Detroit Lumber Company.
   Lewis, J.

The order appealed from was granted upon the application of a junior attaching creditor.

The papers upon which the vacated attachment was issued were concededly insufficient to justify the granting of the attachment.

The appellant contends that the Detroit Lumber Company was not in a position to attack the prior attachment for the reason that its papers, read upon the motion, failed to show that it was a subsequent lienor.

The moving papers consisted of the affidavit of the attorney of the Detroit Lumber Company, setting out the facts of the prior attachment and the levy théreunder; that subsequent to said levy, in an action pending against the defendant Scribner in which the Detroit Company was the plaintiff, a warrant of attachment, a copy of which was annexed to the affidavit, duly signed and granted by Hon. Henry A. Childs, a justice of the supreme court of the state of New York, was duly issued to the sheriff of Erie county. That the sheriff by virtue thereof duly levied upon the same lumber as was levied upon by him under said first attachment; that the copy attachment, summons and complaint, affidavits and undertaking upon which the attachment was issued were duly served upon the defendant; then follows an allegation that said complaint and affidavits were duly verified, and the undertaking duly executed, acknowledged and approved; that the sheriff still had possession of the lumber, and that it has not been applied to payment of any judgment recovered in either of said actions.

There was also the affidavit of a deputy sheriff showing the service of the first attachment and the quantity and value of the lumber attached under the first attachment, the service and levy of the second attachment, by virtue of the attachment issued as aforesaid by Justice Childs.

The attachment is in the ordinary form, containing recitals that it appears by a sworn complaint in the action of the Detroit Lumber Company v. Scribner, presented, that a cause of action for the recovery of money exists against the defendant in favor of said plaintiff for the sum of $16,280.75; then follow allegations justifying the granting of the attachment.

The complaint, affidavits and undertaking referred to were not presented in court upon the motion.

These papers made a prima facie case establishing that the Detroit Company had acquired a lien upon or interest in the lumber attached by the appellant.

The process had issued out of a court of general jurisdiction, and must be presumed to have been issued upon adequate papers and put upon the appellants the burden of showing that the papers were in fact insufficient.

The order appealed from should be affirmed, with ten dollars costs and disbursements of the appeal.

Dwight, P. J., and Macomber, J., concur.


author: Macomber, J.

text:
    Florence A. Smith, Pl’ff., v. The City of Rochester, Def’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Municipal corporations—Rochester—Negligence—Notice.
    The charter of the city of Rochester provides that the city shall not be liable for injuries arising from defects in the sidewalks unless actual notice has been previously given to the city officers having charge of the highways, and makes the executive board highway commissioners, with power to appoint a superintendent of streets. Held, that a sidew dk inspector was not a city officer having charge of the highways within the meaning of the act, so that his knowledge of the defect can be imputed to the members of the executive board.
    Motion by the plaintiff, Florence A. Smith, for a new trial upon exceptions taken at the Monroe circuit in January, 1891, and ordered to be heard at the term in the first instance.

      Walter S. Hubbell, for pl’ff; C. D. Kiehel, for def’t.
   Macomber, J.

At the trial of this action the plaintiff was non-suited upon the ground that no notice had been given to the authorities of the city of Rochester of the dangerous or unsafe condition of the street upon which the injuries complained of were received by the plaintiff.

The action is one of negligence, for bodily injuries sustained by the plaintiff on the 2d day of June, 1888, between the hours of nine and ten in the evening, while walking on a public sidewalk on the west side of North avenue. A stone walk, which had lain in the place where the plaintiff was injured, had been removed by the owner of the abutting premises and excavations made underneath, and the same covered by planks which ran lengthwise of the walk and which were not securely fastened, so that they parted, leaving openings between them. A certain amount of brick and rubbish was piled at one side of the walk, and it was contended that the plaintiff was obliged to use these planks in order to pass along. While she was pursuing her course, to all intents in a careful manner, her foot and leg went between the planks, whereby she received quite serious personal injuries.

The motion for a nonsuit was based upon the following provisions of the city charter, being § 218 of chap. 14 of the Laws of 1880: “ The city of Rochester shall not be liable for any injury caused by such sidewalks being out of repair or unlawfully obstructed, or dangerous from snow or ice, unless actual notice of the unsafe or dangerous condition thereof has been given to the city officers having charge of the highways a reasonable time before the happening of any such injury.” That this provision of the charter is constitutional, since the recent decision of the court of appeals in the case of McNally v. City of Cohoes, 127 N. Y., 350; 39 St. Rep., 578, following, in principle, the case of Todd v. City of Troy, 61 N. Y., 506, admits of no doubt.

The learned counsel for the plaintiff, however, at the circuit, made an offer of evidence of such a character as that, as he now claims, should have permitted him to go to the jury upon the question whether or not actual knowledge or notice of the condition of this walk had not been brought home to the executive board of the city of Rochester. Upon the trial he offered to prove, by a witness who was called, that he was one of the sidewalk inspectors of the city at the time of the accident in question, and that in the performance of his duty as such inspector he passed by this place and saw its condition on the day of the accident and on each day for weeks prior thereto; that he was appointed such inspector by the executive board and that his duty was, among other things, to examine sidewalks and ascertain for the executive board whether the same were out of repair or in a dangerous condition or were obstructed in any way. The learned justice at the trial asked if the counsel meant that the inspector had informed the executive board of the condition of the sidewalk. Counsel said that he was not prepared to show that and did not expect to do so.

The question, therefore, urged upon us is, whether or not the knowledge of this inspector can be ascribed to the members of the executive board, and if so, whether or not the positive provisions of the charter, above quoted, can be thus avoided. This depends, primarily, upon the question whether ornotthis sidewalk inspector was a city officer having charge of highways. That question can be answered, in our judgment, but one way, and that decidedly in the negative. By subdivision 7 of § 40 of the charter, power is given to the common council “ to regulate and prevent the use and. cumbering of streets, avenues, walks, public squares, lanes, alleys, bridges, aqueducts, wharves, basins or slips in any manner whatever.” By the 149th section, “ The executive board shall have * * * the superintendence and control of all work or improvements ordered by the common council, and shall have the control of the construction, improvement, repair and cleaning of the streets, alleys, sewers and bridges, except bridges owned by the state of New York, and shall have control of the expenditure of the funds therefor. * * * The members of said board shall give their entire time to the duties of the office, and shall be the commissioners of highways of said city. The executive board may appoint and at pleasure remove a superintendent of streets, fix his compensation and prescribe his duties.”

Under these provisions of the charter, it is clear that this inspector was not a superintendent of streets appointed by the executive board, but that he was, as the description of his duties necessarily implies, a subordinate, a means adopted by the members of the executive board to bring home to them knowledge or notice of the actual condition of the streets. It would, doubtless, .be difficult for the members of the executive board personally to ascertain without such aids the actual condition of the sidewalks throughout the city, but the knowledge of the inspector cannot be imputed to the members of the executive board under any rule of law with which we are acquainted. The members of the executive board are themselves but mere agents of the municipality, and the statute has seen fit absolutely'to say that the municipal corporation shall not be liable for injuries of this character unless actual notice has been brought home to the executive board. This, of course, does not mean that a formal notice shall be served upon each or any member of the board; it is sufficient that they have knowledge of the existence of the defects a reasonable time before the injuries complained of were received, to enable an action to be maintained. But the knowledge of any other person whom they may employ is not imputable to the board until it is in some way brought to their attention.

The learned counsel for the plaintiff makes sundry citations from the work of Wade on Notice. But, with due deference, we are of the opinion that they do not apply to cases of this character. They relate solely to matters pertaining to the principle of the knowledge possessed by the agent, and do not relate to the matter here in controversy. Indeed, we find nowhere in that book reference to any question arising under a provision in a municipal charter of the. character here appearing. We are of the opinion, therefore, that the nonsuit was correctly granted, and it follows that the exceptions taken thereto should be disallowed and judgment ordered thereon for the defendant.

Plaintiff’s motion for a new trial on exception denied, with costs, and judgment ordered for the defendant on the nonsuit

Dwight, P. J., and Lewis, J., concur.


text:
    John J. P. Read, App’lt, v. August Simon, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Ejectment—Severance—Tenants in common.
    Plaintiff and his sister, as co-tenants, brought this action of ejectment. The sister afterwards died without issue, leaving a will hy which she gave all her property to her husband. A contest ovei said will is pending and undetermined. Held, that under these circumstances the court properly ordered a severance, with leave to plaintiff to amend or file a supplementary complaint.

      Appeal from an order of the Erie special term, made on the 14th day of December, 1891, directing that this action be severed,, and that the trial proceed as between the plaintiff, John J. P. Bead, and the defendant, with leave to the plaintiff to amend his complaint.

      O. O. Cottle, for app’lt; George W Cothran, for resp’t.
   Macomber, J.

This action was brought by the plaintiff, John J. P. Bead, and his sister Elizabeth A. S. Bead, the latter now deceased, to recover possession of the land described in the complaint, under allegations showing that such plaintiffs were tenants in common thereof, and that the defendant was wrongfully in possession thereof, and refused to surrender the same to them.

After the case was begun, Elizabeth A. S. Bead intermarried, with one George W. Rockwell, and at her death left a last will, by the terms of which all' of her estate, both real and personal, was devised and bequeathed to her husband. She died without issue. A contest arose respecting the validity of the will, and a trial of the issues therein has been twice had before a jury, resulting in each instance in a disagreement. It is obvious, therefore, that if this will is ultimately sustained, the plaintiff can recover but an undivided half of the lands, while if it is overthrown he, as the only heir of his sister, would inherit her share, and thus be entitled to a recovery of the whole of the premises.

As is shown by the learned counsel for the respondent in his brief, prior to the case of Hasbrouck v. Bunce, 62 N. Y., 475, no doubt could be entertained but that a case like this could have proceeded as between the surviving plaintiff and the defendant, without any order of severance. The revisers, in preparing § 1500 of the Code of Civil Procedure, which permits one or more-part owners to maintain ejectment, show that such section was introduced for the purpose of annulling the decision above cited, so-that the law would be deemed restored as it previously was supposed to exist. The codiffers, however, inserted §§ 1522 and 1523, and those sections seem to confuse the rules of practice, and make the application of the several provisions of the Code doubtful and uncertain; but, on the whole, we think the learned justice-at special term has easily surmounted the difficulty presented by these several sections of the Code, by inserting a provision in the order allowing the plaintiff to amend, or make a supplemental complaint, if he sees fit to do so, as a part of the order of severance. In this way alone, perhaps, the parties may safely proceed to a trial of the case.

Therefore it follows that the order appealed from should be-affirmed.

Order appealed from affirmed, with ten dollars costs and disbursements, but with leave to the plaintiff to serve a supplemental complaint within thirty days, on payment of the costs.

Dwight, P. J., concurs; Lewis, "J., not sitting.


author: Dwight, P. J.

text:
    Franklin B. Freeman, App’lt, v. John S. Rich et al., Adm’rs, Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Decedent’s estates—Assignment op accounts as collateral.
    At the time of giving a note to plaintiff for borrowed money defendant’s intestate executed and delivered an instrument which stated that all accounts remaining unpaid on intestate’s books should remain in plaintiff’s hands until the noie was fully paid, and if such accounts were settled by n ate plaintiff should have full power to take and apply them toward payment of said note. Held, that plaintiff by the transaction acquired either an absolute title to these accounts to the extent of satisfying the note held by him, or such a valid lien thereon, which followed them into the hands of the administrators, as entitled him to receive the money collected by them thereupon to the same extent.
    Appeal by the plaintiff from so much of an order of Monroe special term as denies confirmation to a portion of the report of a referee in a reference, under the statute, of a disputed claim against the estate of the deceased.

      L. M. Norton, for app’lt; J. Welling, for resp’ts.
   Dwight, P. J.

The claim referred embraced several items, among which was one which arose upon a promissory note for $1,000. The decedent was a country merchant, and the plaintiff was a cleric in his store. Three months before he died the deceased borrowed $1,000 of the plaintiff, for which he gave him his promissory note, to which his wife also attached her name without professing to charge her separate estate, of which, indeed, she had none. The note was accompanied by an instrument in writing in the following terms:

“ $1,000. Marion, March 26, 1890.
“ On or before January 1, after date, we promise to pay F. B. Freeman or order one thousand dollars.
“ Yalue received, with use.
“ W. 0. Freeman,
Mrs. Emma Freeman.”
“ This being for collateral security for note as above described.
“ And it is hereby stipulated and agreed that the title of all accounts remaining unpaid on said W. C. Freeman’s ledger shall remain in said F. B. Freeman’s hands until this note is fully paid; and if such accounts are settled by note, said F. B. Freeman has full power to take same and endorse on note, if he so desires or feels insecure, and apply its. value toward the payment of this note until this note is fully paid.
“ Signed this 26th day of March, 1890.
“ W. 0. Freeman,
“Mrs. Emma Freeman.”

The same relation between the parties continued down to the time of the death of the decedent, which occurred only three months after the note and agreement were signed. The books of account were never formally delivered to the plaintiff, but from the nature of his employment it may be assumed that he had the same access to them as the deceased, and that they continued to-be used in the business by both of them until the death of the latter. At that time the plaintiff had received nothing on the-accounts, but shortly afterwards the defendants, as administrators, took possession of the books and declined to give them up to the plaintiff on his demand. At the time of the trial they had collected on the accounts existing at the date of the note the sum of $1,023.66, while there was due on the note, at the same time, the sum of $1,105.33, and the conclusion of law of the referee, which the court at special term refused to confirm, was to the effect that the plaintiff was entitled to receive from the defendants the amount so collected on the accounts in question, and that the same should be endorsed on the note. We think the conclusion was entirely correct and that it should have been confirmed.

The contention on the part of the defendants is that the instrument which accompanied the note was either a chattel mortgage,, and so void for not being filed, or a pledge, and so void for want-of a delivery of the thing pledged. We do not see that it is necessary to pronounce it either the one or the other. The instrument, is not artistically drawn; it is true that it declares itself to be collateral for the note described, but at the same time it declares-that the title to the accounts is in the plaintiff and shall remain so until the note is paid. ■ Now, it is apparent that it was not intended that the accounts should remain uncollected until the ■ 1st of January, 1891, when the’ note was to fall due. By its terms the note was to be paid on or before the 1st of January, 1891.

If in the meantime persons owing the accounts should offer payment, payment was not to be refused ; and if paid, who was entitled to the money but the plaintiff in whom title to the accounts was vested to the extent of satisfying his note? So, too,, it was expressly provided that if parties should settle their accounts by note he might, if he chose, take the notes so given and apply them on the note held by him. The transaction, therefore, seems to have been a sale or assignment of the accounts to the plaintiff, to the extent of the satisfaction of his note; the avails thereof, so far as paid in cash or settled by note, to be received by the plaintiff and applied on his note. As a sale or assignment of the accounts, the transaction was evidenced by “ a note or memorandum in writing, subscribed by the party to be charged thereby,” which completely satisfied the requirements of the statute of frauds. 2 R. S., 136, § 3; Birdseye, 1235, § 13.

But even if the instrument were to be regarded as a mortgage, it was not void from want of filing, because it was a mortgage of choses in action, and the provisions of the statute in respect to filing have no application to mortgages of that character, but only to mortgages of goods and chattels. Booth v. Kehoe, 71 N. Y., 341; Harrison v. Burlingame, 48 Hun, 212; 17 St. Rep., 905.

So, too, if the transaction were to be denominated a pledge, it was, for a like reason, not void or ineffectual for want of the delivery of the subject of the pledge. In the case of Wilson v. Little, 2 Comst., 443, it is distinctly held that incorporeal things “ like debts, money in stocks, etc., which, cannot be manually delivered,” "may yet be the proper subjects of a pledge; and the court in that case say, “ there seems to be no reason why any legal or equitable interest whatever in personal property may not be pledged, provided the interest can be put by actual delivery or written transfer into the hands, or within the power of the pledgee, so as to be available to him for the satisfaction of the debt. * * * And debts and choses in action are capable by means of a written assignment of being conveyed in pledge,” and in Fairbanks v. Sargent, 117 N. Y., 332; 27 St. Rep., 411, the court say; “If the property consists of a thing in action, the pledgee may sue upon it and collect or receive voluntary payment from the debtor. The pledgee may require such payment, and the debtor cannot resist his title. To the extent of his debt the pledgee may appropriate the proceeds to his own use and hold the balance, if any, in trust for the pledgor.”

Under the doctrine of these cases it would seem clear that the plaintiff by the transaction in question acquired either an absolute title to these accounts, to the extent of satisfying the note held by him, or such a valid lien thereupon, which followed them into the hands of the defendants as administrators of the deceased, as entitled him to receive the money collected by them thereupon, to the same extent.

So far as any charge of actual fraud in the transaction is concerned, there is no finding in the case upon which such a charge can be based. It does appear that there are creditors other than the plaintiff, but not that the estate is insolvent, or insufficient to pay all creditors in full without resort to assets which had been turned out by the intestate in payment of or as security for an honest debt

We think the conclusion of law of the referee, to the effect that the plaintiff is entitled to have the moneys collected by the defendants on the accounts outstanding on the 26th day of March, 1890, paid to him toward the satisfaction of his note, was well based upon the findings of fact, and that the report should have been, and should now be, in all things confirmed, and judgment directed for the plaintiff accordingly.

So much of the order as is appealed from reversed, the report of the referee in all things confirmed and judgment directed for the plaintiff accordingly, with costs of this appeal

Macomber and Lewis, JJ., concur.


author: Per Curiam.

text:
    The Delaware, Lackawanna & Western Railroad Co., App’lt, v. Thomas Gordon, Collector, et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Injunction—Reversal of order declaring tax invalid.
    Where an order on certiorairi declaring an assessment and tax invalid, which forms the basis of an action to restrain the collection of such tax, is reversed on apneal, there is no longer any basis for the relief asked for in the action, and order denying a temporary injunction therein will be affirmed.

      Appeal by the plaintiff from an order of Monroe special term, entered in Livingston county, denying plaintiff’s motion for an injunction pending the action.

      J. G. Milburn, for app’lt; J. B. Adams, for resp’ts.
   Per Curiam.

The injunction was sought to restrain the collector of taxes of the town of York in Livingston county, from collecting a tax assessed against the plaintiff in the year 1891. The ground of the action was that such tax and assessment had been adjudged illegal and void, and ordered to be stricken from the assessment roll of the town, by an order of this court made at special term in a proceeding by certiorari entitled The People ex rel. The D., L. & W. R. R. Co. v. William H. Clapp et al., Assessors and Charles Miller, Town Clerk of the town of York. That order has been reviewed on appeal at the present term of this court and has been.reversed, and the assessment in question in all respects confirmed. There is therefore no longer any basis for the relief asked for in this action, and the order denying the temporary injunction must necessarily be affirmed.

Order appealed from affirmed, with ten dollars costs and disbursements.

Dwight, P. J., Macomber and Lewis, JJ., concur.


text:
    The People, Resp’ts, v. Charles Pscherhofer, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Jury—Misconduct of.
    A verdict will not be set aside on the ground of misconduct of a juror in the use of liquor, where the liquor was prescribed as a stimulant in a case of sickness during the trial, and it does not appear that the juror took any after the case was submitted, but, on the contrary, that his mind was clear and composed during the deliberations of the jury and that he showed no effects of intoxicating liquors.
    Appeal from a judgment of the court of sessions of Monroe county, convicting the defendant of the crime of grand larceny in the first degree; and from an order denying the defendant’s motion to set aside the verdict and for a new trial, on affidavits charging-misconduct on the part of a juror.

      A. S. McNab, for app’lt; H. H. Widener, for resp’ts.
   Dwight, P. J.

A careful examination of the record discloses no ground either for reversing the judgment or for setting aside the verdict in this case. The affidavits on which the motion was made tend to show that during an adjournment of the court and before the submission of the case to the jury, one of the jurors was taken sick, at a hotel where they were being kept together, with symptoms of alcoholism; that a physician was called and prescribed champagne as a stimulant, and small quantities of spirits from time to time, and that the prescription was administered by the attendant who had the jury in charge. There is no evidence that the juror took any stimulant, even under the prescription, after the case was submitted and the jury retired to deliberate on their verdict; but on the contrary it appears that during the deliberations of the jury his mind was clear and composed and that he exhibited none of the effects of intoxicating liquors.

Upon these facts no case was made for interfering with the verdict. The cases in which verdicts have been set aside for misconduct of jurors in the use of liquor, are those in which the liquor has been drunk, without leave of the court or medical prescription, after the case has been submitted to the jury for their decision. People v. Schad, 58 Hun, 571; 35 St. Rep., 148, and the cases cited.

We are not aware that a charge of misconduct of a juror, such as to vitiate a verdict, has ever been based upon the use of liquor during the trial; and it is apparent that if a juror should become from that cause or any other incapacitated for his duty during the progress of the trial, it would be a proper subject for the attention of the court at the time rather than after a verdict had been rendered. There is nothing in the affidavits to show that the rights of the defendant were in any manner prejudiced by reason of the matters disclosed.

On the case as presented by the record we find no ground for the objections urged in respect to the indictment, the evidence or the alleged variance between the two. The larceny is charged, in separate counts, to have been accomplished by embezzlement and by false pretenses, both of which seem to have been substantially proved as alleged. It seems to us that both branches of the case might properly have been submitted to the jury ; but the former of them was withdrawn by the court, and the case went to the jury on the single charge of larceny committed by means of false pretences. That charge is stated in the indictment with commendable conciseness, and yet with sufficient fullness and circumstance to bring the case within the statutory definition of the crime, Penal Code, § 528, sub. 1, and § 530, sub. 3, and the evidence seems to us fully to support the charge. There was no exception taken on the trial which requires discussion, and we find no error in the record which vitiates the judgment.

The judgment and order appealed from must be affirmed.

Judgment and order of the court of sessions of Monroe county affirmed.

Macomber and Lewis, JJ., concur.


text:
    Kate Davis, Adm’rx, Pl’ff, v. The Lehigh Valley Railroad Co., Def’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Negligence—Contributory—Passenger leaving train.
    _ Defendant’s train stopped at the grade crossing of another road for a signal to cross, one of the cars being upon a bridge. Plaintiff’s intestate, thinking the train had arrived at the station, which was half a mile off, left the car, and as it started up stepped from the platform upon the side which was in darkness, fell through the bridge and was drowned. Held, that defendant was not negligent in stopping the train in the place it did; and that deceased was guilty of negligence contributing to his death.

      Motion by the plaintiff for a new trial ordered to be heard in the first instance at the general term, upon a case and exceptions, after a nonsuit at the Cayuga circuit.

      Coburn & Hunter, for pl’ff; Taber & Brainerd, for def’t.
   Lewis, J.

The deceased was a passenger on the defendant’s road from Weedsport to Auburn on the evening of February 19,1890.

The distance between the two places is ten miles.

Before reaching the depot in the city'of Auburn from the north, the defendant’s road crosses a bridge which spans the Owasco outlet.

It also crosses the tracks at grade of the N. Y. C. & H. R. R. R. Co.

This grade crossing is between the bridge mentioned and the dépot.

The depot is about one-half mile south of this bridge, by way of the railway. The train on which the deceased was riding on the evening in question stopped, as it was required to do by statute, before crossing the Central tracks.

In coming to the halt the car on which the deceased was riding was on the bridge.

The deceased, supposing the train had arrived at the depot, went out upon the platform of the car where he had been riding and went down the steps of the car upon the westerly side of the train, stepped off and fell into the outlet and was drowned.

The evening was very dark, so dark that the deceased was unable to see where he was stepping.

There was an electric light upon the north side of the bridge and one upon the south side.

They were so located as to throw light upon the surface of the bridge upon the easterly side of the train.

The westerly side of the train was in the shadow.

The train remained standing on the bridge about five minutes, presumably waiting for the signal to pass over the crossing mentioned.

The statute provides that “All trains and locomotives on railroads crossing each other on the same level shall come to a full stop before crossing, not less than two hundred nor more than eight hundred feet from said crossing, and shall then cross only when the way is clear and upon a signal to do so from a watchman stationed at the crossing.”

The evidence tended to show that the train before stopping upon the bridge had been passing through thickly settled and lighted streets, and that circumstance and the fact that the train stopped probably led the deceased to think that he had arrived at the station.

Nothing was said or done by the hands on the train to warn passengers not to leave the train while it was thus standing upon the bridge.

The defendant’s train coming into Auburn from Weedsport usually stopped upon this bridge and waited for a signal to pass over the crossing mentioned.

It sometimes stopped just north of the bridge for that purpose, and passengers occasionally took advantage of the stop and alighted from the train at this point.

There was a plank walk crossing the bridge longitudinally upon its easterly side. It was constructed for the convenience of the defendant’s employees only, though the evidence tended to show that passengers sometimes used it in leaving the train.

There was no walk nor railing to the bridge on the westerly .side. The westerly side of a passenger car when upon the bridge extended out nearly flush with the westerly ends of the ties.

The circumstances of the deceased leaving the train and of the .accident were related by Mr. Fay Cutler, a witness called by the plaintiff.

He was the only witness who testified upon the subject.

He stated that he rode in company with the deceased from Weedsport to Auburn; had been conversing with him, and accompanied him out of the car on this occasion.

Mr. Cutler, in describing the occurrence, testified: “ When he got out on the platform he turned around and shook hands with me.

“ He says Good night,’ and I says ‘ Good night.' It was dark ; quite dark.

Of course I could see between the two cars, but to look off •each way I couldn’t see.

“ I could not see off to the west side. After doing what I have stated, Mr. Davis got off, took a step down one step and got hold of the iron that is up and down on the end of the car with his right hand.

“He took hold of that railing with his right hand; he had his grip in his left hand when he stepped down, and then I said Good night,’ and he said Good night,’ and then he stepped down one .step, took hold of the iron and then, just then, the train started.

“ He stood on the bottom step as the train started.

“ He swung off just as I would step off or anybody, right off as though he was going off on the ground; the train had just started, had not gone over a foot or two; it was moving slow; I couldn’t see anything on either side as I looked off; it was cold ■enough‘so I needed an overcoat on, and quite a chilly wind; it did not appear to be stormy; I could hear the wind was blowing some.”

At the close of the plaintiff’s evidence the court, on motion of the defendant, directed a nonsuit and ordered the exceptions be heard at the general term in the first instance.

Careful examination of this case has not disclosed to us any question of fact which should have been submitted to the jury.

It was not negligence for the defendant to stop the train in the place it did on this occasion.

It liad a right to select the place of stopping, if within the ■statutory limits, and there is no complaint in that regard. It had a right to delay the train for such length of time as was necessary before crossing the Central tracks.

It cannot be successfully claimed that it is the duty of those in charge of a train to warn passengers not to attempt to leave a train when it is not at a station, unless they have said or done something calculated to lead passengers to think they have arrived at the station.

In the running of trains of cars exigencies frequently arise requiring them to come to a halt when not at stations. It is incumbent upon the passengers to be vigilant and attentive, and not attempt to alight until they are in some way informed that their train has arrived at the station.

The plaintiff failed to show the defendant guilty of negligence causing the death of the intestate.

Plaintiff also failed to show the deceased free from negligence contributing to his death.

The circumstances under which he left the train conclusively show him to have been guilty of surprising carelessness and thoughtlessness.

Without notice that the train had arrived at the station, and in the absence of the usual lights and other evidences that they were at the station, he heedlessly stepped off the car into the darkness, not knowing where he was going and while the car was in motion.

It must be held, we think, that under these circumstances the deceased was guilty of negligence contributing to his death.

We fail to find among-the cases cited by the plaintiff’s counsel anyone sustaining his contention here. In the cases cited, where the company was held to be liable, it was made to appear that those in charge of the train had in some manner led the passenger to understand that he had reached the station.

The deceased was a commercial agent accustomed to travel upon the railroads, and must have known that it was the custom of the railroad officials to notify passengers when they arrive at a station, and there being an absence of proof that any such announcement was made on this occasion, leaving the train as he did was a negligent act.

Plaintiff failed to make a case.

We find no errors in the rulings of the court at the trial

Motion for a new trial should be denied, and judgment ordered for the defendant upon the nonsuit.

Dwight, P. J., and Macomber, J., concur.