author: Per Curiam:

text:
    STEPHEN C. JOHNSON, Appellant, v. ALEXANDER ELWOOD, Respondent.

      Action — death of defendant — when it does not abate.

    In this action, brought to restrain the defendant from entering upon certain lots, and cutting and removing timber and bark therefrom, a temporary injunction was granted. Subsequently, and before trial, defendant died. More than two years after his death, his heir-at-law and administratrix applied for an order requiring the plaintiff- to substitute them as defendants and continue the action by supplemental complaint, or that the action be discontinued.

      Held, that an order to that effect was properly granted, and that the same should be affirmed.
    Appeal by the plaintiff from an order of the Special Term of this court, made on the motion of Charles S. Elwood, the heir-at-law, and Lydia Elwood, the administratrix of the defendant above named, now deceased, and directing the plaintiff to elect whether he would discontinue this action, or continue it by supplemental complaint against said administratrix.
    The action was brought to restrain the defendant from cutting timber, and peeling bark on, and removing the same from lots 33 and 41, of the Spooner tract, in the town of Colchester, Delaware county, to which the plaintiff claims title. The answer consists of a general denial, an averment of the title in the defendant, and a plea of former suit in bar.
    The papers show that the defendant died in the latter part of the year 1875, intestate, leaving an only soil and heir-at-law, Charles S. Elwood, and a widow, Lydia Elwood, who was after-wards duly appointed administratrix of his estate; that' at the time of the commencement of this action, the defendant had cut timber and peeled bark on said lots in large quantities, which he was restrained from removing by temporary injunctions obtained and served by the plaintiff; that during the pendency of this action, the Court of Appeals in other actions had decided adversely to the plaintiff’s claim of title to the lands in controversy; and that the plaintiff now refuses cither to discontinue the action, or to continue it against the defendant’s successor’s in interest.
    The court below held that, as to the heir-at-law, the action abated at the death of the defendant, but that as to the representative, it survived for some purposes; that it could not be continued on motion of the representative, for the reason that more than one year had elapsed since the death of the intestate; but that it could be continued after that time by supplemental complaint, and accordingly ordered the plaintiff to elect, within twenty days, whether he would continue the action in that manner, or would discontinue it.
    The appellant claimed that the action abated for all purposes on the death of defendant, and coidd not be continued.

      Gleason & Murray, for the appellant.'

      Youmans é -Niles, for the respondent.
   Per Curiam:

The order is, in substance, correct. The form is not complained of. By the injunction granted, defendant was restrained from doing certain nets. It is fair to assume he was injured by ' such restraint, if plaintiff wrongfully procured the injunction. By the death of defendant, the action abated. The administrators of defendant could not, without plaintiff’s consent, procure themselves to be substituted as defendant’s. Their only remedy, therefore, was by motion to compel plaintiff to substitute them as defendant’s, or for a dismissal of the complaint. Otherwise, the plaintiff, by neglect to act, could avoid the consequences of any improper action in procuring tho injunction, and escape the payment of such damages as may have been caused thereby. It cannot be that such a possible wrong can be sanctioned by the law. The action should be terminated by'discontinuance or a dismissal of the complaint, or else the plaintiff should make the substitution provided for in the order.

The order of Special Term should, therefore, be affirmed, with $10 costs and printing.

Present — Learned, P. J., Boardman and Tappan, JJ.

Order affirmed, with $10 costs and printing.


source: Caselaw Access Project

author: Per Quriam :

license: Public Domain

text:
    BRIDGET BROOKMIRE, Respondent, v. JOHN MONAGHAN, Appellant.

      Chapter 646 of 1873 — death of husband, alone, does not give a cause of aationunder.

    A complaint, alleging that the defendant sold intoxicating liquors to plaintiff’s husband, intoxicating him and rendering him incapable of labor and of supporting the plaintiff, and so injuring him as to cause his death, and that, by reason of his death, plaintiff had been injured in property and means of support to the amount of $5,000, does not state a cause of action under the Civil Damage Act.

      Mayes v. Phelan (4 Hun, 73.3; 5 id., 335) followed.

      Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for'a new trial, made upon the minutes of the justice before whom the action was tried.
    The action was brought under the Civil Damage Act (chap. 646 of 1873). The complaint alleged that the plaintiff and one Francis Brookmire were married in 1852, and lived together until his death, January 6, 1877.
    “ That, during the months of November and December, 1876, and the fore part of the month of January, 1877, the defendant sold and gave the said Francis Brookmire strong, spirituous and intoxicating liquors, and furnished the same to and for the said Francis Brookmire, to be used and drank by him. That' said strong, spirituous, and intoxicating liquors were used and drank by the said Brookmire, and caused him to be intoxicated, and greatly injured him in person and strength, and rendered him incapable of labor and supporting this plaintiff, and so injured him that he died on the 6th day of January, 1877. That the strong, spirituous, and intoxicating liquors sold by defendant to said Francis Brookmire, as aforesaid, which were drank as aforesaid, were the cause of the death of the said Brookmire. ■ That, by reason of the death of the said Francis Brookmire, this plaintiff has lost her husband, and been injured in property and means of support to the amount of $5,000.”
    Upon the trial, evidence was admitted tending to prove a cause of action for the loss of the husband’s support, occasioned by her husband’s becoming intoxicated during the months of November and December.

      Z. S. Westbrook, for the appellant.

      J. W Eighmy, for the respondent.
   Per Quriam :

The complaint in this action asks damages only by reason of the death of plaintiff’s husband, which death is alleged to have been caused ■ by intoxication by liquors sold the deceased by defendant. This court has heretofore decided, in Hayes v. Phelan (4 Hun, 733; 5 id,, 335), that such damages are mat recoverable under the act of 1873. That decision must control us in this department until the Court of Appeals shall have determined it is erroneous, although a different view has been expressed in the fourth department, iu Jackson v. Brookins (5 Hun, 530).. Proper ' exceptions were taken to the evidence, tending to establish a cause of action outside of the allegations of the complaint. The motions for a nonsuit also presented the same question. We think, in the reception of such evidence, and in refusing the motions for a non- ' suit, the learned judge was led into error, whereby a substantially new cause of action was allowed to bo established and sustained by the verdict of the jury; and, for this reason, we. think a new trial should be granted, costs to abide the event.

Present — Learned, Boardman and Tappan.

New trial granted, costs to abide event.


author: Boardman, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, by AUGUSTUS SCHOONMAKER, Jr., Attorney-General, Respondent, v. THE NORTH AMERICA LIFE INSURANCE COMPANY, Appellant.
    1 Proceeding to dissolve insurance company — intervening policyholders appearing therein — cawnoi appeal from orders made thei’ein.

    After an order had been made dissolving an insurance company, and appointing
    t a receiver thereof, an order was made directing that a firm of attorneys toe allowed to appear for certain policyholders, and that notice of all motions and all proceedings in court, either by the attorney-general or by the receiver, should be served on the firm, with liberty to it to appear on said motions and proceedings in behalf of such policyholders.

      Eeld, that the policyholders so represented did not become parties to the proceedings, in such a sense as to authorize them to appeal from an order of the Special Term made therein.
    . Appeal by certain intervening policyholders from an. order of the Special Term, confirming the report of an actuary made under seetion 8, chapter 902 of Laws of 1869,

      After The North American Life Insurance Company had been dissolved, on the application of the attorney-general, and a receiver appointed, the following order was made :
    “Upon reading and filing the affidavits of William Barnes herein, the complaint of the petitioner, Yioletta A. Bedell, in the suit brought by her against the North America Life Insurance company, and the demurrer thereto, * * * Ordered, that the firm of Barnes & Hanover be allowed to appear, either generally or specially, as attorneys for the petitioner, Violetta A. Bedell, and any persons similarly situated, who 'have or may choose to retain them, and that notices of all motions and all proceedings in court herein, on the part of the attorney-general and on the part of Henry Ii. Pierson, receiver herein, be served upon the said firm of Barnes & Hanover, Staats Zeitung building, N. Y., with liberty to said firm to appear in said motions and proceedings in court, in behalf of the said Yioletta A. Bedell, and such other person or persons, as aforesaid, as they may be advised.”

      Augustus /Schoonmaher, Jr., Attorney-General.

      JR. W. JPechham, for H. R. Pierson, receiver.
    . William Barnes and Ogden & Buchner, for divers policyholders, appellants.
   Boardman, J.:

An objection is taken by the respondents at the outset which-seems to be fatal to this appeal by divers policyholders. The appellants are not parties to this proceeding, nor are they entitled to become parties by substitution or otherwise. (Old Code, § 325; New Code, §§ 1294, 1296; Matter of Bristol, 16 Abb., 397; Martin v. Kanouse, 2 Abb., 390; E. B. v. E. C. B., 28 Barb., 299; People ex rel. Lee v. Lynch, sh’ff, 54 N. Y., 681.) Nor is it material that they have been permitted by the court to appear in such proceedings for the protection of their interests. (Martin v. Kanouse, ante.) For this reason the appeal should be dismissed. It may be proper to add that many of the objections taken to the proceedings had, and to the order appealed from, are such, in the opinion of this court, as could only be taken advantage of by the insurance company or the receiver had they, or either of them, seen fit to appeal. It is not clear that all of such objections are of that character. But, in view of the conclusion reached upon the preliminary objection, it is not necessary to decide as to those objections.

The appeal is therefore dismissed, with ten dollars costs.

Learned, P. J., and Tappan, J., concurred.

Appeal dismissed, with ten dollars costs and printing against appellants.


text:
    GEORGE ADEE, Respondent, v. MARIA HOWE, Appellant.

      Admissions — statements of counsel in stemming up — not to be received, as admissions of Ms client.

    . This action was brought to recover the value of services rendered to the defendant in procuring a pension for her. It appeared that the plaintiff had been indicted and convicted in the United States Court for charging excessive fees for getting the pension. While that indictment was pending, he had returned to the defendant $110, which she had previously paid to him. On the trial of the indictment, his counsel, in summing up, had spoken of this as an act of generosity on his part. Upon this trial, this statement of his counsel was allowed to be proved as an admission of the plaintiff. Held, that it was error to allow the statement to be proved.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought to recover the value of services rendered by the plaintiff to the defendant; in procuring a pension for her, her husband having been killed in the war. After the pension was procured, it was agreed that she should pay $110 for his services, and she did pay to him that amount. Subsequently, he was indicted and' convicted in the United States District Court for charging her an excessive amount for such services. Pending the indictment, he returned the $110 to her. Thereafter, this action was commenced to recover the value of such services.

      Adee <& /Shaw, for the appellant.

      Robert T. Johnson, for the respondent.
   Boardman, J.:

We think a new trial must be granted in this case for the error of the referee, in admitting as evidence against the plaintiff the declaration of his counsel upon the trial of an indictment against him in the United States Court. That was an indictment for taking excessive pay for services of the plaintiff in obtaining a pension for the defendant. While that indictment was pending, the plaintiff repaid to defendant the |110 which she had previously paid him for his services. This repayment was by plaintiff’s counsel, on his argument before the jury, characterized as an act of generosity, and as a present of $110 by plaintiff to defendant. This was allowed to be proved as an admission by plaintiff, on the theory that the counsel was plaintiff’s agent, and his declarations made in plaintiff's presence and not denied, bound the plaintiff as an admission.

. There is no dispute between counsel in respect to the principles of law applicable to principals and agents. Hence, this question must be governed by the facts. An admission by an attorney, to bind his client, must-be intended and understood to be such. Such was not this case. It must be within the scope of the attorney’s authority in the proceedings he is engaged in. Such was not the fact here. The issue before the United States Court was the guilt or innocence of the plaintiff in taking fees for services. Whether he had repaid the money was not material; nor was it material upon what terms he had repaid it. Hence, the remark of the attorney was outside of the case, and of no importance to the issue then being tried. The attorney had no authority to make admissions binding his client, except such as properly related to the proceeding in which he was employed. His agency did not extend beyond that. But, beyond this, wo think it would be extravagant to allow the summing up of counsel, in whole of in part, to be used as evidence of his client’s admissions, because the latter did not interrupt his counsel to correct the supposed error. To entitle a remark of counsel to the character of an admission, it must have some degree of deliberation, purpose and recognition for that end. (1 Gr. Ev., § 186.) The only case cited directly in point is Colledge v. Horn (3 Bing., 119; S. C., 11 E. C. L. R., 59). But it does not decide the question at all. One judge (Burrough) thinks such evidence is admissible. No other judge concurs in his view, and the case is decided on another point.

Besides, it does not appear that plaintiff was-present when any such remark ivas made by his counsel and heard it. That is important; otherwise, he was not called upon to interrupt and deny it.. But it affirmatively appears that he heard no such remark, and hence could not be bound by it, as an implied admission by reason of his silence.

■ .We are also inclined to think a further error occurred in the admission of Stoutenburg’s evidence of conversations between him and Foote, and in the admission of Stoutenburg’s letter to the defendant. It is not apparent that such evidence was any part of the res gestm, or was in any respect proper to establish the issue joined — that is, the amount of services rendered, the value of such services, dr the legality of the ckiim therefor. Foote may have been defendant’s- agent for certain purposes, but that would not justify the defendant in proving his declarations in her favor, as was here done with a person nót a party to the action.

We think the record of conviction was not competent evidence in this case, except so far as it may tend to affect the credit due to the plaintiff as a witness. .

We arc also of the opinion that plaintiff may recover the value of his services, and for expenses paid at the defendant’s request, if the amount be not restricted by the United States laws, unless the repayment of the $110 by plaintiff to defendant was a voluntary act, under no agreement or understanding between the parties for setting aside the former settlement and restoring them to their original rights. If plaintiff, by such repayment, abandoned his claim against the defendant, and surrendered up any right tc> be paid for his services and expenses, he should be bound thereby. But, if the money was repaid at the request of the defendant, or with her assent, and under an agreement that the former payment by the defendant, of this refunding by the plaintiff, should not aftect the legal rights of the parties, then such facts ought not to be used to estop or prevent a fair examination of the merits and just disposition of the controversy.

For the reason first assigned, we think the judgment must be reversed and á new trial granted, costs to abide event and reference discharged.

Learned, P. J., and Tappan, J., concurred;

Judgment reversed; new trial grantéd-, costs- to abide event; reference discharged. ■


text:
    PETER O. EISENLORD, Appellant, v. MAGGIE DILLENBACK, Administratrix, and JOHN W. FLANDERS, Administrator of SIMEON DILLENBACK, Deceased, Impleaded with C. K. and J. H. LOUCKS, Respondents.

      Promissory note— transfer of, by payee after maturity — what a reasonabletime within which to make demand of payment.

    On April 19th, 1878, the defendants Loucks made théir promissory note for $600, with interest, to the order of one D., payable- one day- after date. December 17th, 1874, D. sold and indorsed the said note to plaintiff; on January 5th, 1877, plaintiff demanded payment of the note from the makers, and gave due notice of its presentment and non-payment to D.
    In an action upon the note, brought against the makers, and the respresetttatives of D., held, that the indorser was discharged from all liability thereon by the failure of the plaintiff to demand paymént of the note within a reasonable time.
    Appeal from A judgment; dismissing the complaint as to the administrator of Simeon Dillenback, deceased, entered upon the trial of this action by the court, without a jury.

      On the 19th day of April, 1873, Conrad K and John H. Loucks made and delivered their promissory note in. writing to Simeon Dillenback, by which, for value received, they promised to pay said Dillenback, or bearer, $600 with interest, one day after the date thereof. On March 23d, 1874, $42 interest on the note was paid by the makers. On the ,17th day of December, 1874, Dillenback transferred the note to the plaintiff, and indorsed the same.
    The plaintiff presented the note to the makers for payment on the 5th day of January, 1877; and on the same day gave notice of presentment and non-payment to Dillenback.
    This action was commenced January 20th, 1877, against the makers and indorser. The makers did not defend. The indorser, Dillenback, among other defenses in his answer, set up that the plaintiff failed and neglected to present said note and demand payment thereof from the makers, and to give notice of non-payment to the defendants within a reasonable time.
    On or about March 1st, 1877, Dilleuback died, and thereafter Maggie Dillenback and John W. Flanders were duly appointed administratrix and administrator of the estate of said Dillenback, deceased, and thereafter substituted as defendants in this action.

      Cook (Si Barnes, for the appellant.
    A note endorsed and delivered when over-due, is to be treated' as between indorser and indorsee, as a note on demand, dated at the time of transfer, so far as relates to demand and notice. (Goodwin v. Davinport, 47 Maine, 112; Van Hoesen v. Van Alstyne, 3 Wend., 79; Weeks v. Prior, 27 Barb., 79; S. C., 1 Sand., 199.) A promissory note, payable on demand with interest, is a continuing security; and an indorser remains liable until an actual demand; and the holder is not chargeable with neglect for omitting to make such demand within a particular time. (Merritt v. Todd, 23 N. Y., 28; Herrick v. Woolverton, 41 id., 581, 599, 600; Pardee v. Fish, 60 id., 265; Alexander v. Parsons, 3 Lans., 334.)

      II. Dunckel, for the respondents.
    The note in this case being over-due when Dillenback indorsed and transferred it-to the plaintiff, the plaintiff was bound to present said note and' demand payment thereof from the makers, and to give notice of non-payment of the same to the indorser within a reasonable lime, in order to charge the indorsor. (Edwards on Bills, etc., pp. 258, 261; 1 Pars, on Notes and Bills, 382; Van Hoesen v. Van Alstyne, 3 Wend., 75; Leavitt v. Putnam, 1 Sand., 199; Id., 3 Coinst., 494; Tyler v. Young, 30 Penn. St., 143; Alexander v. Parsons, 3 Laus., 333; Sandborn v. Southard, 25 Me.; 409; Benton v. Gibson, 1 Hill [S. 0.], 56; Pryor v. Bowman, 38 Iowa, 92.)
   Per Curiam:

The endorsement imposed upon the transferee the duty of demanding payment of the makers within a reasonable time after the transfer to him; and, in case of non-payment, giving notice to the endorser. The demand ivas not made in this case until more than two years after the transfer; hence the indorser was released. (Leavitt v. Putnam, 1 Sand., 199; S. C., 3 Comst., 494; Tyler v. Young, 30 Penn. St., 143; 1 Pars, on Notes, 382; Van Hoesen v. Van Alstyne, 3 Wend., 75; Alexander v. Parsons, 3 Lans., 333; Sanborn v. Southard, 25 Me., 409.)

Merritt v. Todd (23 N. Y., 28) is not in point. That was not a transfer of over-due paper. The indorsement was there made for- the accommodation of the maker. The note had no valid inception until after it was indorsed. The note was payable on demand, with interest. The court held this to be a continuing security, and hence a demand was not necessary within a limited time. So of Pardee v. Fish (60 N. Y., 265), which was an action on a certificate of deposit drawing interest, which the court held to be the same as a note payable on demand, with interest. Both these papers being, and having been intended to be, continuing securities, no duty of presentment to makers for payment was imposed upon the indorsee in order to hold the indorser. Demand might be made at any time.

In the case under consideration, the law implies a different con- . tract. The paper was over-due. It ivas not a demand note. It was not a continuing security. Hence the law implies a contract by the indorsee, that he will proceed with reasonable diligence to demand payment, and give notice if not paid. Failing in this, the indorser is dischai’ged.

We think the decision of the court below right, and that the judgment should be affirmed, with costs.

Present — Learned, P. j., Bocees and Boardman, 33.

Judgment affirmed, with costs.


author:
Leakned, P. 3.:
     Boardman, J.:

text:
    CHAUNCEY BACON, Respondent, v. HENRY T. FRISBIE and BARNEY RATNOUR, Appellants.

      Opinion of valúe — when falsity of, constitutes a fraud ■— Attorney and client — ¡ wlickt cohiiriunioation between, privileged.

    While opinions of valué, even though false', aré n'ot ordinarily evidence of fraud’, yet, when the vendor knowingly makes false representations as to the market value of land, knowing the vendee has not seen it, and induces him not to examine it for himself, but to rely upon such representations, he is guilty' of fraud, and liable for the damages oceakionéd thereby.
    Every communication made to an attorriey or counsellor by a client, for the purpose of getting advice as to the law applicable to the facts so stated, is privileged.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion fór á new triál, mádé upon a case and exceptions.
    This action was brought on the 10th day of May, 1876, to recover damages alleged to have been sustained by the plaintiff by reason of fraud practiced by the defendants, in making false and fraudulent representations in regard to a farm belonging to the defendant Erisbie, and in regard to the terms and amount of a mortgage held by David W. Ingalls dn said farm, and in regard to the financial condition of said Ingalls, and in regard to what defendant Ratnour would do concerning a second mortgage on said farm, taken by plaintiff of defendant Ffisbie as security for. payment of part of the purchase-price , of plaintiff’s hotel and . vacant village lot in Oneida, which plaintiff sold to defendant Erisbie on the 28th of April, 1875.

      Bdwin J. Broiun, for the appellants.

      James B. Jenkins, for the respondent.
   Leakned, P. 3.:

Kennedy was an attorney-at-law, and before and since the time of the conversation he had done business for Ratnour professionally. He also kept a liquor store, and the conversation was in that store. He had no general retainer from Ratnour, and he never ivas engaged by him in regard to this suit. He testifies that he did not consider that Ratnour was advising with him as counsel, for the reason that Ratnour did not inform him what the transaction was, until just as he ivas going out of the door.

The conversation to which Kennedy ivas allowed to testify, against defendant's objection, 'was as follows: Ratnour said to him, supposing two men were trading land, and there was a fraud in the transaction, and a third party was interested, would he be liable ? Kennedy said he would. Kennedy asked what the fraud was. Ratnour said: Suppose a man should induce another to take a mortgage on a farm, and should tell him there was a $5,000 mortgage on it ahead of his, and it should turn out to bo a $6,000 mortgage, would he be liable ? Then he wanted to know if a third pai-ty made the representations, would the third party be liable. Kennedy told him he would. After a little more talk, Kennedy said: “ Was it this Bacon trade over here ?” And Ratnour said: “ I guess it is.” Kennedy said: “ Where is the farm ?” and Ratnour said: “ You know Avhore it is.” Kennedy replied that he remembered now, because he (Ratnour) Avanted him to take an inventory of the hotel property.

. Now, this evidence Avas given by the plaintiff, in order to sIioav that Ratnour Avas a party to the fraud. Ratnour’s question was not- merely hypothetical. OtherAvise the evidence Avould have been immaterial. The very force of the evidence consisted in the fact that Kennedy asked if the case, which Avas at first stated hypothetically, Avas not, in fact, the bargain which is uoav in question, and that Ratnour ■ acknowledged that it was. • Ratnour did not say explicitly that he Avas the third party, but that was what was meant by the evidence.

It is plain, then, that Ratnour Avished to obtain legal advice; that is, advice on a question of law. To obtain this, he stated to a lawyer the facts of this present case, as they are claimed to be by the plaintiff; that is, in substance, that there had been fraud in a trade of land, and that a third party made the fraudulent representation. Ho was himself the third party. And the statement which he thus made to a lawyer, in order to obtain advice, the lawyer is allowed to testify to in court against Ratnour.

I think this was wrong. All communications made by a client to his counsel, for the purpose of professional advice or assistance, are privileged, whether such advice relates to a suit * * * or to any other matter proper for such advice or aid.” (Britton v. Lorenz, 45 N. Y., at p. 57.) It is unnecessary to cite other authorities. That case extends the rule farther than it was stated in the opinion in Whiting v. Barney (30 N. Y., 330).

Ratnour’s statement was for the purpose of professional advice. He wished to know whether a third party would be legally liable for the fraud in the Bacon sale. And he was, as the plaintiff claims, the third party. His communication, then, was privileged. And this was his privilege, not his attorney’s. Ratnour could not be deprived of it by Kennedy’s saying he did hot consider his advice as counsel. It was, in fact, legal advice, whatever Kennedy considered it.

The object of the rule is evidently to enable persons to obtain legal advice on a free and full statement of facts, without the risk that the statement will be made evidence against them. And to effect that object, it is necessary that every statement should be privileged which is made to an attorney or counsellor for the purpose, on the part of the client, of getting advice as to the law on the facts stated. The motive of the party who makes the statement, and the character of the party who hears it, make it privileged.

For these reasons, I cannot agree' with the opinion of Judge Boardman on this point, and think the judgment and order should be reversed as to Ratnour, and a new trial granted, costs to abide event.

Boardman, J.:

Upon the evidence contained in the case, we do not think the judgment should be disturbed. There is much of conflict, but no such preponderance in the evidence in favor of the defendant as to justify our interference. The fact is patent that the plaintiff has suffered serious loss by reason of the arrangement and sale made by him. It is equally certain that he had little or no knowledge of the Frisbie farm, except what he derived from the defendants; that he relied upon the information derived from them; that he would not have made the arrangement if he had not believed the mortgage taken by him was good and well secured. These facts being apparent, the character of the representations made by the defendants was submitted to the jury, and it has found such representations false and fraudulent on the part of each defendant. That decision, upon the facts, must bo conclusive, unless there were errors committed upon the trial compelling us to grant a new trial.

Very many exceptions have been urged upon us. Wo will consider such of them as seem to be of importance.

The plaintiff was permitted to prove the value per acre of Frisbic’s farm. Evidence was given tending to show that Frisbie said he had been offered $13,500 for his farm of 151 acres, and that the land was worth $80 to $100 per acre. At the time of this transaction, there was a mortgage of about $6,000 upon such farm. As a result of the negotiations, the plaintiff took a further mortgage of $5,000 upon the same premises. While opinions of value are not ordinarily, though false, recognized as evidence of fraud, it is not always so. We think the learned justice, in his memorandum denying a now trial in this case, expressed the true rule, as laid down by late authorities. He says: “ If the defendants knowingly made false representations as to the market value of the farm, knowing the plaintiff had not seen it, and induced him not to examine it for himself, and to rely upon their representations, it would be fraud.” This is quite as strongly put as in Simar v. Canaday (53 N. Y., 298, 306). At the page last cited, the learned judge says statements of value of property “ may be, imder certain circumstances, affirmations of fact. When known to the utterer to be untrue, if made with the intention of misleading the vendee, if he does rely upon them and is misled to his injury, they avoid the contract,” citing Stebbins v. Eddy (4 Mason, 414, 423). The case of Simar v. Canaday would seem to be analogous, in most respects, to the one under consideration. The precise representations made and-proof offered by way of showing them to be false are not given in the ropoi’t.

An equally strong ease to the same effect is that of McClellan v. Scott (24 Wisc., 81). The court there held that, when property was stated to bo worth three times its actual value, it must bo treated not as a more matter of opinion, but.as a fraudulent misrepresentation. (Medbury v. Watson, 6 Metc., 246.)

Judge Folger, in Simar v. Canaday [ante), further says.: “ Whether a representation of value is merely an expression of opinion or belief, or an affirmation of a fact to be relied upon, is a question for the jury.” It was so treated by the court in this ease, and was fairly submitted to the jury. Hence, there was no error in the submission of this matter to the jury, nor in the manner it was done.

For the reason already given, the various motions for a nonsuit, as to one or both defendants, were properly denied.

It is claimed the charge to the jury was erroneous in several particulars. It is a sufficient answer that no exceptions were taken.

It is proved, under the defendants’ exception, that defendant Ratnour, during the negotiations, said to plaintiff: “I will loan you $1,000 on the mortgage (the $5,000 to be taken by plaintiff* of Frisbie), and I don’t want you to sell it, for I- want to buy it.” This was admissible, as part of the res gestae, and for the further purpose hereafter, stated. In like manner it was proved that Ratnour afterwards, on application, refused to perform his promise. This was admissible in two respects — first,. as a declaration of the party, and secondly, .as evidence that Ratnour had acted in bad faith in his representations made to the plaintiff.

But my brethren think the evidence of Kennedy was inadmissible, for the reasons stated in opinion of Learned, P. J., and hence the judgment must be reversed and a new trial granted, costs to abide the event.,

Present — Learned, P. J., Boardman and Taepa-n, . JJ.

Judgment and order reversed as to Ratnour, and now trial granted, costs to abide event.


author: Learned, P. J.: Tarpan/J: • -Boardman, J.,

text:
    JEROME C. DUTCHER, Respondent, v. JOHN. S. SWARTWOOD, Appellant.

      Chattel mortgage — what agreement renders it invalid, — as to what creditors void-possession taken does not render it valid as io existing creditm'S.

    September 25th, 1875, one Gilbert executed a chattel mortgage to the plaintiff upon all the goods then in and which he should thereafter bring into his store j it being understood and agreed that Gilbert-should remain in possession, and sell the goods as though no mortgage had been, given. The mortgagei.was duly filed in the proper town clerk’s office. Gilbert remained in possession and sold goods until January 24th, 1876, when plaintiff- — -the whole mortgage being then due — took possession of the goods, locked up the store and commenced to take an inventory, preparatory to selling under his mortgage. On the 27th and 28th of January, judgments were recovered against Gilbert, for indebtednesses arising prior to January 24th, and the goods were levied upon under executions issued thereon.

      Held, that the mortgage was void as.to all who were creditors of Gilbert prior ' to January 24th, 1878, whether they had then recovered judgments and issued executions or not; and that, as to them, it was not rendered valid and binding by the act of the plaintiff in taking possession of the goods'prior to the recovery of the judgments and the levies thereunder, (Boardman, J., dissenting.)
    Appeal from a judgment in favor of the plaintiff, entered.upon the verdict of a jury, and. from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried. The action was brought against the under sheriff of Schuyler county, to recover damages for the alleged conversion of certain property described in a chattel mortgage given by one Gilbert to the plaintiff. The mortgage covered all the goods in the store, and all that Gilbert might buy or bring therein before paying plaintiff the amount due him. The mortgage was duly filed in the proper town clerk’s office. The sheriff had taken the goods under certain executions issued on judgments recovered by certain creditors of Gilbert.

      8. O. Keeler, for the appellant.

      M. M. Mead, for the respondent.
   Learned, P. J.:

On the 25th of September, 1875, one Gilbert executed a chattel mortgage to the plaintiff upon the goods and merchandise in Gilbert’s store to secure $1,147. By its terms, the mortgage was to cover all the goods and merchandise which Gilbert should buy or bring into his store before settling the demand. The learned justice who tried the case, charged that it was understood and agreed that Gilbert should take possession of the property, and go on and sell the same as in a retail store, notwithstanding the property was mortgaged; and that Gilbert did continue in possession of the property, and did engage in selling and retailing the goods mentioned in the mortgage.

No exception is made to this part of the charge; and, as the rest of the charge is based on this statement, it must be taken as correct, without examining the evidence. The mortgage contained the usual clause that, on non-payment of the debt, the mortgagee might take possession; and also, that he might take possession previously if he deemed himself unsafe.

One installment became payable October 18th, 1875; another January 18th, 1876. After the execution of the chattel mortgage, Gilbert purchased and put into his store goods to the amount of over $1,600, and he made sales to the amount of several hundred dollars.

On the 24th of January, 1876, the plaintiff employed a constable to foreclose this chattel mortgage, and that evening the constable went to the store and took possession. The constable took the key, locked up the store, and gave the key to the plaintiff. The next day the plaintiff went on and made an inventory, preparatory to selling under his mortgage. The plaintiff took possession as well of the goods bought by Gilbert after the execution of the mortgage, as of those in his possession when the mortgage was executed.

On the 27th and 28th days of January, 1876, four judgments were recovered against Gilbert, for indebtedness which arose prior to the 24th of January, 1876, and while Gilbert was in possession of the goods. Executions were issued on those days on the judgments respectively; and the defendant, the under-sheriff, on those days, levied upon the goods which the plaintiff had thus taken into his possession.

The defendant claimed on the trial, that as Gilbert was left in. possession of the goods, and continued to sell them under an agreement to that effect with the mortgagee; and as the mortgage was to have effect on.'subsequently acquired goods, the mortgage was void as to the creditors represented by the. defendant. But .the court refused so to hold, and stated that if the act of Dutcher in taking possession of the stock on January 24th, was in good faith, he was entitled to recover; but if that possession was taken fraudulently, the defendant was entitled to a verdict. To this the defendant excepted. ,

Subsequently the learned justice charged the jury, that' the ^mortgage was void as to creditors, and “the sheriff could sell, in case he had made a levy during the time the property was in that condition.” And. he further charged, that .‘.‘ the case simply presents the question, whether Gilbert or the plaintiff ivas the.owner ■of those goods; and the question turns .upon this simple point:. Did the plaintiff act in good faith when he took possession of those goods by virtue of his mortgage, or did he do it for the purpose’ of cheating or defrauding the creditors of Gilbert?”

To this the defendant excepted. The mortgagor remained in •possession, and therefore the mortgage ivas presumed fraudulent, .as against creditors (2 R. S. [m. p_], 136, § 5); and as there wgs. an agreement between the parties, that the mortgagor should .remain'in possession, sell .the property and appropriate the proceeds, the mortgage was held, by the learned justice, to be. void as to the creditors of the mortgagor. (Edgell v. Hart, 9 N. Y., 213; Russell v. Winne, 37 id., 595; Mittnacht v. Kelly, 5 Abb. [N. S.], 442; Griswold v. Sheldon, 4 N. Y., 580.)

• But the learned justice held'(and this,view appears more distinctly in his subsequent opinion) that the mortgage was void only as to such creditors as should make a levy oh the property before' the mortgagee had taken possession. The statute (2 R. S., m. p. 136, ■§ 6) defines avIio are meant by the Avord, •“ creditors.” They are all persons avIio shall be creditors of the vendor or assignor, at any time Avhile such goods shall remain in his possession or under' •his control. ■ ■ The statute-does not say that they must be judgment-creditors, but it declares, the mortgage void (presumptively or conclusively) as to all Avho are creditors. And this. Avord “creditors,” in a similar statute (2 R. S., m. p. 136, § 9), has received! this construction. (Thompson v. Van Vechten, 27 N Y., 581.)

It is, then, plain that the mortgage was (presumptively or conclusively) fraudulent as to the creditors represented by the defendant up to the 24th of January, 1876, when the plaintiff took possession. It is claimed by the plaintiff, and was so held by the learned justice, that the plaintiff, by taking possession under his mortgage on that day (unless he acted with actual intent to defraud), made the mortgage valid as to then existing creditors of the mortgagor who had not levied on the property.

The object of the statute, and of all similar law, is to prevent an obvious evil. Men who are in the actual possession and enjoyment of personal property necessarily obtain a credit thereon. They appear to be the owners, and are trusted accordingly. When, therefore, they have given a mortgage thereon, they obtain a credit to which they are not entitled. Now, if the doctrine of the learned justice is correct, the statute fails entirely to correct this evil. If the mortgagee, remaining out of possession, can allow the mortgagor to obtain credit and contract debts, and then, before ■the creditors sue, if he can take possession and thus defeat their claims, the statute becomes useless. The fraudulent nature of such mortgages consists in giving the mortgagor credit by allowing him to remain in possession. If the mortgagee, by taking possession, can defeat creditors who have already trusted the mortgagor, the arrangement becomes a trap, which the mortgagee may spring at any time.

In Frost v. Warren (42 N. Y., 204), a chattel mortgage was given; subsequently the plaintiff, the mortgagee, took possession, and a day or two afterwards the defendant, the sheriff, levied under attachment against the mortgagor. Two opinions were delivered, principally on the question of the validity or invalidity of the mortgage.. Neither suggests the idea that the possession taken by the plaintiff prevented a levy afterwards. Yet if that doctrine be correct, it would have disposed of the case in favor of the plaintiff.

The case of McCaffrey v. Woodin (65 N. Y., 459) does not touch the question of creditors. It was a controversy between parties to the instrument.

In Parshall v. Eggert (54 N. Y., 18), the court distinctly state that, in the case of a chattel mortgage., the time when the creditor became such fixed the rights of the parties; that a mortgage pot then filed was void as to him, though he should not then be in ,a position at once to attack its validity; and they say ' that a chattel mortgage unfiled could not afterwards be filed, wjtth effect, to cut off the right of an intermediate creditor. As remarked above, the language of the statute as to the filing of chattel mor-t- ■ gages is the same with that as to delivering of possession under such mortgages.

If there had been no mortgage to the plaintiff, .and if, on the 24th of January, .Gilbert had turned out to the plaintiff and deliyered to him goods in payment of a just debt, there is no reason to say that the plaintiff would not have obtained a good title .to the same as against the defendant. Perhaps -the same would be true if on that day Gilbert had delivered goods to the plaintiff in payment of a debt secured by chattel mortgage. But nothing of that Mnd was done. The plaintiff -was only mortgagee in possession after-the 2.4th of January, as he had been mortgagee out of possession before. No new transfer was made by Gilbert. The plaintiff took possession by no other title or authority than his mortgage. And the statute requires that the mortgage be accompanied by an immediate delivery — not -that it be followed by a subsequent delivery. The statute does not say that the .mortgage shall be presumed, fraudulent until delivery of possession.

If, then, the mortgage was fraudulent as to the creditors represented by the defendant when their debts -were contracted, the plaintiff cannot, under that mortgage, make to himself a title as against those creditors,

Some reliance is placed by the defendant on the case of Powell v. Preston (8 N. Y. S. C. [1 Hun], 513); but there are two inspects in which that case differs from the present. That was the case of a conditional sale. The plaintiff in that case, who .re-took the goods, >vas the original .owner, and Rad never made an absolute sale of them. The son, who had been in possession, had never been the owner, except conditionally. The son had not mortgaged the goods to the plaintiff. Again, the jury found that there was no fraud or bad faith in the plaintiff's title.

Now, in the present .case, the court held, as a matter of law, that the mortgage, under which the present plaintiff claimed, was fraudulent as to creditors of Gilbert; but, he practically' -held; that it-was relieved from the fraud by plaintiff’s-taking possession' in good faith'., - •

■ If the court' had held, or if thé jury had found, in th'e present case, that the mortgage- was, in fact, made in good faith and without intent to defraud,- that would- -have established' the plaintiff's rights! The difficulty is -that th'e- contrary-was held by the' court; and that this must be taken as the law of the case, because -the jury might have so found; if the -question had 'been! Submitted to them. 'Assuming, -then/that'the mortgage-ivas fraudulent as to creditors; we do not- understand -that Powell v. Preston holds that the taking ef possession uhcfeiha fraudulent hlortgalge',- gave the- mortgagee a good title,' évehtiioúgh the-act-of -taking possession ivas done in 'good faith. Fbr' the-court hfekl-that, owing to agreements in, and connected with the-mortgage; it'was fraudulent.' The plaintiff was a -party to - -these-Agreements; he-'-ivas, therefore, chargeable with knowledge'of théffáud.■■ He eámiot/then; obtain a good title under that mortgage, ás-a person 'acting in good faith; and we have already seen'-that he has no-title,' except under the mortgage.l- -The judg'mént and'-order should be-reversed and-a new trial ■granted,' costs to 'abide the event.' ‘ '■ ' •

Tarpan/J: •

"Plaintiff took possession upon the'mortgage, aiid noth'y virtue -of any other’or '-different' authority from, or agreement with Gilbert.- -'- ; •

I concur in the foregoing opinion of Justice Learned.-

-Boardman, J.,

(dissenting):

Assuming (as pcrhaps’ive must in this cáse) that the1 plaintiff’s mortgage was fraudulent iii law as to creditors, it’was still possible for him to táke possession of the'mortgaged property, with the consent of'the- mortgagor, as a security-‘for his-debt;' and'such possession so taken lydujd he' valid and effectual -'as against creditors' át “large: This 'was precisely what was attempted. ' The learned judge submitted tiiat question of fact to-the jiiry, and the jufy has found that such' possession was taken by the plaintiff of this property, 'without'fraud-or fraudulent intent, before the credjtors had obtained their judgments. The plaintiff,. then, as a creditor of defendant, had taken possession of certain -property .of defendant’s,, in good faith, as a pledge or security-for his. debtj •and the invalidity of the mortgage he before that, and then, held; would not destroy the effect' of this new act, which the-law peymits. An unfiled mortgage is void -as to the subsequent creditors ■at large of the mortgagor; -but it- clearly cannot impair a title obtained from the-mortgagor,- which overcomes the defect of; the neglect to file the mortgage. ,. ..- . .( ,- •

If the plaintiff had had no mortgage, good or bad, lie -could have taken possession of 'the,property, either, as a pledge for-or in payment. of his debt. ,. Possession, so taken, would, give him the preference over general creditors. It cannot be possible that the possession of a worthless-security puts,the plaintiff in, a worse position than'if he had none, t , .r

Entertaining these views, I think the case was properly disposed of at' the Circuit, -and that'the judgment-and- order should he affirmed, with costs. 'i'

• Judgment and order reversed; new trial granted, costs to abide 'event.' ' ■ 'J


author: Learned, P. J.: Tapp an, J.

text:
    CHARLES FRAZIER and FRANK WILLIAMS, Appellants, v. ALEXANDER GIBSON, Respondent.

      Pleadings in Justice’ CouH — defect of parties plaintiff, how it must he. taken advantage of — cannot he raised under general denial.-.-.
    This action was brought in a Justice’s Court to recover upon a claim originally-held. by one Bogart against the defendant, and by Bogart transferred to the firm of L. S. Lawrence & .Co. This firm was composed of the plaintiffs akd L. S. Lawrence. Upon the trial, defendant moved for a nonsuit, on the around that L. S. Lawrence should have been named as a plaintiff. . ' ....
    ; Held, that the motion was properly denied; that the objection to the non-joinder , of proper parties plaintiff should have been taken by answer; and, no*having been so taken, was waived. (Tappan, J., dissenting.)
    • Sections 144,147 and 148 of the Code are, by subdivision 15 of section 63, made applicable to justices’ courts. (Tappan, J., dissenting.) _ , • : j

      Appeal from a judgment of the County Court of Ulster county, reversing a judgment of a Justice’s Court in favor of the plaintiffs; The action was brought upon a claim against the defendant, held by one Bogart, and by him assigned to the firm of L. S. Lawrence & Co., which was composed of the two plaintiffs and L. S. Lawrence. The defendant moved, in the Justices’ Court, for a nonsuit, on the ground that Lawrence should have been named as a plaintiff, which motion was denied and judgment rendered in favor of the plaintiff, which was reversed on appeal to the County Court.
    The defect of parties plaintiff did not appear on the face of the complaint, which alleged that “A. W. Bogart has assigned, sold and transferred the claim and account thereof to the plaintiffs, who are the owners thereof.” The answer did not set up the nonjoinder of L. S. Lawrence as a party plaintiff

      William Lounsbery, for the appellants.
    The motion for a non-suit was properly denied as respects the question of parties. (Zabriskie v. Smith, 13 N. Y., 322; 1 Saund., 251, 291, note 9 and note n; Gilbert v. Dickerson, 7 Wend., 451; Code, § 144, sub. 4, and §§ 147, 148; Gardener v. (jlark, 6 How. P. R., 449; Gook v. Ferráis, 13 Wend., 285; 67 N. Y., 48; 5 Hun, 595; Palmer v. Fvertson, 2 Cowen, 417; Trips v. Pile?/, 15 Barb., 333; Osburne v. Gilbert, 52 Barb., 158, and Olapp v. Gmves, 26 N. Y., 418.)

      Charles A. Fowler, for the respondent.
    L. S. Lawrence should have been joined as party plaintiff, and this omission was ground of nonsuit. The defect did not appear on the face of the complaint, and could not, therefore, be taken advantage of by demurrer or answer. (Gates v. Ward, 17 Barb.,- 424; Webster v. Hopkins, 11 How. Pr., 140; Gilmore v. Jacobs, 48 Barb., 338; Dob v. Halsey, 16 Johns, 34; Armine v. Spencer, 4 Wend., 406, 409; 2 Wait’s Law and Practice, p. 276.)
   Learned, P. J.:

The cause of action was assigned to a partnership, consisting of three partners. This action was brought in the name of two of them. The non-joinder does not appear in the complaint, and is not set up in the answer.

The Code of Procedure, section 144, subdivision 4, permits a defendant to demur for defect of parties, if such defect appears in the complaint. If it does not appear on the face of the complaint, he must take the Objection by answer. Otherwise it is waived. (§§ 147, 148.) Helice, if the cause of action be in several parties, a less number than the whole may recover, unless the defendant chooses to set up the non-joinder as a defense in his pleading.

Section 64, subdivision 15, of the Code makes the provisions “ respecting parties ” to actions applicable to justices’ courts.

It seems to me that sections 144, 147 and 148 above cited do respect parties to actions. For, under the old practice, the joinder of all proper parties as plaintiffs in actions ex contractu was necessary. Else, on the trial, the plaintiff might be nonsuited, because he had not proved the contract which he had alleged. Now, non-joinder is only a matter of affirmative defense.

Again, in justices’ courts, as well as in coúrts of record, the Code established a new system. The old forms of action and of jffeading are abolished, and simpler forms arc adopted. It is not necessary that we should retain the rules of the old practice, unless they are in harmony with the new. One reason for the rule that, in actions ex contractu, the plaintiff, on the general issue, might be nonsuited at the trial for non-joinder, was that causes of action were generally not assignable. Hence the plaintiff was always the original party to the contract. If, then, thei’e was a non-joinder, the proof would show a different contract, as to parties, from the allegations of the. declaration. Now, causes of action are generally assignable. And we may see in the present case that the contract is proved according to the allegation. The only defect is that the complaint alleges an assignment of it to two persons. In fact, it was assigned to them; but to another, also.

Again; there is no reason why, on this point, a new and convenient rule should be established by the Code as to courts of record, and the old and mischievous rule should be allowed to femain in justices’ courts. In such matters, the practice in the two classes of courts should be similar, unless the contrary intent is plain from the Code. An appeal may be taken in many cases and a new trial had in the County Court on the same pleadings; and it is desirable, therefore, that pleadings should be substantially construed in the same way in justices’ courts as they would be in a case originally brought in the County Court. If the defendant in a Justice’s Court desires to insist on the defense of non-joinder of parties plaintiff, he can set this up in his pleadings. I. .do not think that he should be allowed to take advantage of ;sueh a defense under, a mere general denial.- He can, in fact, seldom,,- if over,- be injured by the non-joinder. If he means to insist .upon it, ho should notify the plaintiff by pleading, as he must do in a pourt of record. ... '

,. In Rice v. Hollenbeck (19 Barb., 664), it was held that, as the defect of .parties plaintiff in a Justice’s Court appeared in the complaint, the defendant might take advantage.of this on a motion for' a nonsuit. I cannot agree with that view, although it is not. the present case. The opinion in that case, implies that the defendant could not have demurred successfully, because, in fact, -the complaint contained a cause of action. To say that the complaint contained a cause of action seems to me inconsistent with .the. decision that that plaintiff should have been nonsuited. On the trial, the plaintiff proved the very facts which were set up in his complaint. If the complaint contained a cause of action, then the plaintiff proved a cause of action on the trial, and should not have been nonsuited. On the other hand, if, upon proof on the trial of the facts stated in the complaint, the plaintiff ought to have been nonsuited, then the complaint could not have stated a cause of action. In other words, if a defect of parties plaintiff appearing on the trial be a ground of nonsuit, such defect appearing in the complaint must be ground of demurrer..

In my opinion, the justice, in the present case was right in refusing to nonsuit. The judgment of the County Court should be reversed, and that of the justice affirmed, with costs.

Tapp an, J.

., ■ This is an appeal from a judgment, of the Ulster County Court, reversing a judgment of a Justice’s Court in that county in favor of the appellants, rendered September 16, 1876, for $39.90 damages and costs.

On October 20, 1871, one Adam" W. Bogart, a lithographer residing in the city of New York, applied to the defendant, a soap manufacturer at Kingston, at Ms soap works in that city, in relation to lithograpMng his business card on tin. The defendant ' and his son, R. A. Gibson, were present. Defendant then executed and delivered to said Bogart, the following paper, viz:

'•“Kingston, Oct. 20, 1871. •
“I agree to pay A. W. Bogart twenty-five dollars, for lithographing my business card on one hundred metal plates, size 10x14. ' “A. GIBSON,
“ Per A. GIBSON.
“ Order should be written in ink. It is distinctly understood that orders cannot be countermanded under any circumstances.” .

The evidence justified the jury in finding that the written order, which gave the defendant’s name, business and' place of business, was filled up by defendant’s said son, in his presence, at the time the contract was made.

The order" gave the place of business as No. 11 North street, Kingston, N. Y.; it was actually “ North Front street.” Defend; ant’s said son was at the'time last mentioned in his employment as bookkeeper.

Bogart performed the contract by lithographing the required number of metal plates, according to such memorandum, and sent the same to defendant, who refused to receive and pay for them.

Before the commencement of this action, Bogart executed a written assignment to L. S. Lawrence & Co. In the assignment Bogart designated his claim as “note against Alex. Gibson,” and under caption “amount of account,” was written “ $25.” As Bogart, defendant and his son were examined as witnesses upon the trial, and no claim was then made that any note or other instrument was executed in reference to the work in question, or that defendant owed Bogart on any account, note or claim when the assignment was made, except under such agreement, it may be safely assumed that there was actually no note given, and that the claim intended to be transferred was Bogart’s claim under the written agreement, which was in such assignment incorrectly designated a note.

L. S. Lawrence & Co., as appeared by the evidence of Bogart ’ by his cross-examination on th.e trial, at tíre time of the assignment and trial were bankers in New York city. The firm was composed of the plaintiffs and L. S. Lawrence, then in Europe.

Plaintiffs’ complaint alleges the assignment of the claim to the plaintiffs. The defendant’s answer contains a general denial, alleges non-performance of the contract, but does- not plead the non-joinder of Lawrence as a party plaintiff.

When plaintiffs rested, and at the close of all the evidence given at the trial, defendant moved for a nonsuit on the ground that the plaintiffs had failed to show title to the cause of action in themselves, and had failed to make out a cause of action in their favdr against defendant. The justice denied the motion and gave judgment in favor of the plaintiffs for the amount of the claim and interest. The Ulster County Court reversed this judgment on appeal. We are not furnished with the reasons of the court below for its judgment.

It is claimed on behalf of the defendant that L. S. Lawrence should have been joined as a party plaintiff, and this omission was a ground of nonsuit; that the defect did not appear on the face of the complaint, and could not, therefore, be taken advantage of by demurrer or answer.

If the action had been pending and tried in a court of record, as it did not appear in the complaint that there was a defect of parties plaintiff, defendant would have been required to plead the non-joinder in his answer, and could not take such point for the first time at the trial. (See section 148, Voorhies’ Code Notes a. & b., and cases there cited; Simar v. Canaday, 53 N. Y., 298; Fuller et al. v. Fuller, 5 Hun, 595.) Section 8 of the Code of Procedure does not in terms make the provisions of sections 144. 147 or 148 applicable to justices’ courts.

It becomes necessary, therefore, to consider how, under the old system of procedure in these courts, tíre question could be raised that there was a defect of parties plaintiff, and how far the Code has changed the old method of procedure.

Prior to the enactment of the Code, the order of pleading at common law was well established. The defendant could plead: First. To the jurisdiction. Second. In abatement. Third. In bar. Pleading in either Class was an admission that there was no ground for pleading in the preceding classes, and a waiver of the right to do so.- (Gra. Pit [2d éd.J, 224.) And this doctrine was applied injustice’s courts/ (Palmer v. Green, 1 Johns. Cases, 101; Palmer v. Evertson, 2 Cow., 417; Cook v. Ferral’s adm’r, 13 Wend., 285.)

Under the old practice, the' non-joindef of parties as plaintiffs in actions ex contractu, could be taken advantage of by pléá in abatement, or defendant might avail himself of it imdef the general issu'e; as ú ground for nonsuit at the trial; (Archb. Pr., 60; Gra. Ph, 62;)

In courts of record, defect of parties since the Code, may be set up hi the answer with other matters of defense. (Bridge v. Payson, 5 Sand. [S. C. R.], 210; Mayhew v. Robinson, 10 How. Pr., 162). In Tripp v. Riley (15-Barb., 333), a case iii Justice’s Court, decided, in 1853, it was held that one tenant in common could maintain an action against a stranger for a conversion, and recover his separate interest, when the misjoinder was not pleaded in abatement. The conrtj for authority, referred to decisions made before the Code, without noticing the changes made by it.

In Rice v. Hollenbeck et al. (19 Barb., 664), decided in 1855, the court held that the defendant might raise the objection in Justice’s Court on motion for a nonsuit, that the plaintiff is tenant in common with another in the property in question when the defect of parties appears upon the face of the complaint, and the plaintiff bases his claim to recover for a portion of the value of the property upon the ground that he is joint owner thereof with another person. That action was fór a tort: In such case, the

defect which ivas considered, could have béeii raised under the old practice by plea in abatement only; the rule being different in such action than in actions ex contractu.

The Code of Procedure has¡ as was said by Judge Mason in the case last cited, provided a distinct system of pleadings for Justices’ Courts. (Code,- § 64.)

The only ground of demurrer in these courts is, that the pleading is not sufficiently explicit to enable the adverse party to understand it, or that it contains no cause of action or defense, although it be taken as true. No demurrer is allowed for a defect of parties where there is a good cause of action stated in the com.plaint. The answer may contain a denial of the complaint, and a . notice of any facts constituting a defense. The'system prescribed by this.section is inconsistent with .the old practice, which prescribes the order of plfiasj under the present system, all matters constituting a defense are to be raised in some form by the answer.

• The Code has not undertaken to define; what defenses may be proven on the trial under a general denial, or what defenses must be. specially set forth in the answer. This is to be determined by the settled principles of pleading, • which existed, ■ before and have continued since the Code, and are applicable to all courts of .common-law jurisdiction. • •

Generally, facts tending to prove that plaintiff never had a cause of action, could be proven before or since the Code under a general denial; and matters in avoidance, like a discharge in bank.ruptcy — the statute of limitation — payment and release were required to be specially pleaded.

The question, that there Was a defect of parties plaintiff, could .have been raised under the general denial of the answer, without being specially pleaded, under the old system. ■ There are no provisions in .the Code or statutes applicable to justice’s courts, .requiring it ,to;be specially set up in the answer,or that it will be waived. • ' . , .

We are satisfied that the motion for a nonsuit- raised the question properly, and that the motion ought to, have been granted. (2 Wait’s Law and Practice, 276.) The form in which the motion was put, in connection with the testimony given, sufficiently dis.closed to plaintiffs that defendant claimed that they had not shown title to the claim in suit in themselves, but'in themselves and in L. S. Lawrence, and had therefore, failed to make a cause of action in their favor.

Judgment of the County Court should be affirmed, with costs.

! Present — Learned, P. J., Boardmax and Tappan, JJ.

Judgment of County Court reversed, and that of Justices’ affirmed, with costs.


author: Learned, P. J.: Tapp an, J.,

text:
    LENORA MORENUS, Respondent, v. IRA CRAWFORD and NEHEMIAH HOAG, Appellants.
    - Civil damage act — action against two defendants jointly — cannot he sustained ; - •• ly proof of. separate sales.'- . ' ■
    In this action, brought by a married woman to recover damages under the Civil • • Damage Act, the complaint • alleged, among other things, that the defendant Crawford resided in one village and the defendant Hoag in another; that, on May 15 th, 1875, “the said defendants wi-ongfully, conspiring and intending to injure sa,icl. plaintiff, at their places of residence aforesaid, gave and sold intoxicating liquors to the said J. M., the plaintiff’s said’ husband, * * * which he drankand that, in consequence thereof, he became intoxicated and killed a horse belonging to plaintiff, to'which complaint the defendants separately interposed general denials. . . . > •

      Held, that, even if the allegations as to a conspiracy were rejected as surplus-age, the complaint charged a joint'sale, atad that it was not'sustained by proof of separate sales by each defendant, at hiá place of residence, ■ (Tappan, J., dissenting.) . ,. . • . . , ' ■
    ■. Appeal from a judgment" iii favor of thé plaintiff, entered xipon the report of a referee.
    : The action was brought under the Civil Damage Act to recover the value of a horse owned by the plaintiff, a'married woman, 'Which ivas killed by her husband, while intoxicated. ’’ The comqilaint alleged: ■- .
    “I. That she is, and for about ten years'last past has been, a married woman; that John Mo.renus.is her husband; that,she, with her said husband, resides'' in "the" tówii 'of''Lisle," 'Broome county, N. Y. . , . ( ...
    “II. -That iñ and previous to. the món'th of ’Miiy, 1875, and-to the time of its death, as hereinafter stated., she was the owner of a valuable horse, - which ivas lifer sole And separate 'property.
    “III. That, in the month of'May;aforesaid, the' said defendant Crawford resided iii "the village of Berkshire, and thé said defendant Hoag' resided- iii the village' of Richford,' Tioga coxintyj N. Y.; that each kept;a hotel atfhis' 'place' ;-of résidencé and- sold intoxicating liquors at all tithes, aiicL iii quantities to suit the purchaser;' ■ f
    • “TV.'- For a' further 'cause bf' action,1 the siti.d plaintiff alleges:, Thakon Of about the'l'Sfhkiay’Of'Máy;’'1875, the 'said’ defendants wrongfully conspiring and intending to injure the said plaintiff, at their places of residence aforesaid, gave and sold intoxicating liquors to the said John Morenus, the plaintiff’s said husband, in small and large quantities, which he drank; and, from the effects of the intoxicating liquor so sold and given to the plaintiff’s said husband as aforesaid by the said defendants, he became and was intoxicated; and, while so intoxicated, caused by drinking the intoxicating liquor sold and given to him by the said defendants, and by reason of said intoxication, he killed plaintiff ’s said horse or mare, which was of the value of one hundred and fifty dollars.” To the complaint, the defendants interposed separately general denials.
    The referee found, among other tilings:
    “That, on the 15th day of May, 1875, said defendants, each separately, at his place of residence, and without conspiracy or concert between them, by selling intoxicating liquors, caused the intoxication, in whole or in part, of said John Morenus, said plaintiff’s said husband, such selling by each of them contributing to such intoxication; and, in consequence of such intoxication of said John Morenus, the said horse of said plaintiff was then and there killed and became worthless, whereby said plaintiff in this action was injured in her property in consequence of such intoxication in said sum of one hundred and fifty dollars,” and directed judgment for the plaintiff.

      Eugene B. Gere and J. W. Hopkins, for the appellants.

      A. McDowell, for the respondent.
    The action was properly brought against the defendants jointly. Intoxication constitutes the gist °f the action, and was produced by the joint and concurrent effect of the liquor sold by e,ach of the defendants. The liquor sold by either defendant, while it contributed to, might not have produced, intoxication; but, >vhen the liquor sold by each came in contact, its joint effect produced the intoxication complained of, and made it the joint act of the defendants. (Colgrove v. The Harlem and New Haven R. R. Gos., 6 Duer, 402, 403, 404, 407; affd., 20 N Y., 492; Barrett y. Third Avenue R, R. Oo., 45 id., 628; Websterv. Hudson River R.R. Go., 38 id.., 2.60.)
   Learned, P. J.:

I agree with much that is said in the opinion of Judge Tap-pan, hut I cannot concur in the result. We may, perhaps, assume that the allegation of conspiracy could be treated as surplusage; but, even then, we have the allegation of a joint act by two defendants, and the proof of -two separate acts, for which there is no joint liability. This is not a mere misjoinder of several causes of action; such a misjoinder arises when a plaintiff has several causes of action against the same defendant, which are such in their nature that they may not be united.

But, if a plaintiff should sue two defendants on an alleged joint note, and on the trial should offer to prove two separate notes — one made by each defendant — he could not be allowed to do this, although the defendants had not set up a misjoinder in their answer; or, if a plaintiff had alleged a joint assault and battery against two defendants, he could not sustain the complaint by proof of two separate assaults, one by each defendant.

Two separate, wrongful acts, or acts giving a cause of action, committed severally by two defendants, do not warrant a joint action or joint recovery.

The complaint must be construed as alleging a joint sale by the defendants. This the plaintiff failed to prove. Two separate sales by the defendants severally do not prove the allegations. Possibly the plaintiff might have been allowed to elect, and to recover against one or the other of the defendants; but we need not decide that. It is enough that he could not recover against both for their several acts. The case of Blossom v. Barrett (37 N. Y., 436,) was one where the two alleged causes of action were against the same party; one for fraud in procuring a marriage, •the other for assault and battery. So the case of Winterson v. Eighth avenue (2 Hilt., 389,) was one for damages, alleging that an accident occurred by a conductor’s negligence, and also that it Occurred by his willful .act. These cases do not touch this present .question.

The case of Fosgate v. Herkimer Manufacturing Co. (12 N, Y., 580.) was an action to recover possession of land, brought against one person, and several who held under him, according to the peculiar provisions of the statute. The cause of .action was only for recovery of one piece of land, and the persons having ■possession of parts of the lahd as tenants under the adverse claim.ant were made parties. This casé is not analogous to the present. • . 1

The judgment should be reversed and a new trial granted, and the reference discharged, costs to abide the event.

Tapp an, J.,

(dissenting): -

' ■ Appeal from a judgment entered upon the report of a referee in favor of the plaintiff.'

The action is brought to recover damages under chapter 646, • Laws of 1873, the act known ás the “ Civil Damage Act.”

■ The complaint alleges that for ten years before the commence- ' ment of the action plaintiff had been a married woman, the wife of John Morenus; that in and before the month of May, 1875, she ’was the owner of a valuable horse, which was her sole and separate property; that in May, 1875, the defendant Crawford resided in •the village of Berkshire, Tioga county, in this State, and the 'defendant Hoag resided in the village of Richford, in said county; that each kept a hotel at his place of residence, and sold intoxi- • eating liquors;, that on the 15th day of May, 1875, “the said ' defendants wrongfully conspiring and intending to injure said •plaintiff, at their places of residence aforesaid, gave and' sold : intoxicating liquors to the' said John Morenus, the plaintiff’s said -husband, * * * which he drank, and from the effects of the :said intoxicating' liquors so sold and given to the plaintiff’s said husband, as' aforesaid, by' said' defendants, he became and was •intoxicated; and while so intoxicated, caused by drinking the ■•intoxicating liquors sold and given-to him by the said defendants, •and by reason of the said intoxication, he killed plaintiff’s said •horse, which was of the valué of one hundred and fifty dollars.”

Defendants answered the complaint separately by a general ‘deuial only. The referee reported, upon sufficient evidence given at the trial, that the defendants resided at the places'stated in the •complaint, and each kept a tavern at his place of résidence; that •oil the-15th day:6f May,i'1875, each separately'at his place of ■residence, and without conspiracy or concert between' them, by selling intoxicating liquors; '-caused-the intoxication'hi wholé or in' part of said John Morenus, said plaintiff’s said husband, such selling by each of them contributing to such intoxication; and in consequence of such intoxication of said John Morenus, said plaintiff’s said husband, the said horse of said plaintiff was then and there killed, whereby said plaintiff was injured in her property in consequence of such intoxication in the sum of $150; and, as conclusion of law, the referee held that the plaintiff had a right of action against each of such defendants for the value of said horse, and interest from May 15th, 1875, “and that no objection to the joinder of the cause of action against said defendants having been taken, either by demurrer or answer, said plaintiff should have judgment ” for such sum and costs, and judgment was rendered accordingly.

During the trial defendants objected to proving the sale of liquor until the conspiracy was first established; also to the proof of separate action of one defendant as against the other. These objections were overruled, and the referee’s ruling properly excepted to.

At the close of the evidence each defendant moved that the complaint be dismissed, because it did not state facts sufficient to constitute a cause of action against him; also for the reason that it did not state a cause of action against the defendants jointly; also because the plaintiff had failed to make out a cause of action against either of such defendants, or against defendants jointly. Also for the reason that there was a fatal variance between the proofs and the allegations of the complaint; that the complaint sets forth a joint liability, and the evidence shows, if anything, an individual liability; that plaintiff, to maintain her cause of action, must prove a joint liability. Each one of these requests were separately oveiTuled, and an exception taken.

According, to the finding of the referee, the sale of intoxicating liquors by the defendants to John Morenus was at different times and at different places, without conspiracy between them. In such a case a joint action would not lie. (Jackson v. Brookins et al., 12 N. Y. S. C., 530, opinion 534.) . Such joint action is not expressly given by the act, nor is the right to maintain it fairly implied from its provisions. The same point has been decided in the same way by the Supreme Court of Iowa, in Vary v. B. C. R. & M. R. Co. (42 Iowa, 246). The referee seems to have taken this view of the ease, but held that because no objection to the improper joinder of causes of action had been taken by demurrer or answer, defendants had waived their right to raise such objection at the trial.

The action was tried while the Code of Procedure was in effect, and the correctness of this position is to be judged by its provisions.

By section 144, it is provided that the defendant may demur to the complaint when it shall appear upon the face thereof * * * that several causes of action have been improperly united.

Here it did not appear from the face of the complaint that the different acts of soiling intoxicating liquor therein alleged were the separate acts of the defendants, but the complaint charged the acts as the joint acts of the defendants, pursuant to a wrongful conspiracy between them, with intent to injure the plaintiff.

The complaint would have been sufficient upon demurrer.

Section 147 provides that, when any of the matters enumerated in section 144 do not appear upon the face of the complaint, the objection may be taken by answer; and section 148 provides that, if no such objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action.

The cause of action alleged in the complaint is not a wrongful conspiracy to sell intoxicating liquors to plaintiff's husband, with intent to injure her. The referee properly treated such allegation as surplusage, and the failure of plaintiff to prove the same immaterial. He properly decided that the real cause of action was the sale or gift of intoxicating liquors by defendants to the plaintiff’s husband, whereby he became intoxicated; and, while in that condition, and by reason thereof, injured the property of the plaintiff.

The joint acts charged in the complaint were, in fact, as appeared by the proofs on the trial, the separate acts of the defendants, for which they were liable to separate actions by the plaintiff. (12 N. Y. S. C. R., 530.) This defense could have been raised by each of the defendants, by setting up the facts in his answer; not having thus alleged the improper joinder of two distinct, separate causes of action against each of the defendants, he waived the objection, and could not avail himself of it when the facts appeared at the trial.

The proofs showed a cause of action against each defendant, for which the referee properly gave judgment.

This principle was decided in the following cases: (Fosgate v. Herkimer Mfg. and H. Co., 12 N. Y., 580; Winterson v. Eighth Avenue R. R. Co., 2 Hilton, 389; Blossom v. Barrett, 37 N. Y., 436.)

The judgment should be affirmed, with costs.

Present — Learned, P. J., Boardman and Tappan, JJ.

Judgment reversed; new trial granted; reference discharged; costs to abide event.