author: Earl, J.

text:
    Electa A. Dyke, Resp’t, v. William Spargur et al., App’lts.

      (Court of Appeals,

      Filed October 9, 1894).

    1. Appeal—Facts.
    Undisputed, facts, on which there is no finding, may be considered for the purpose of upholding a judgment.
    2. Specific performance—Proof.
    An assignment of a contract of sale of land must show that he or his assignors have been ready and able to perform their part of the contract.
    3. Same—Relief.
    A defendant in ejectment, if he asks for no such relief and does not put himself in a position to be entitled to it, is not entitled to a decree for conveyance on the performance of his part of the contract.

      4. Same—Ejectment.
    Such defendant must show that an action by him for specific performance would result in his obtaining a deed.
    Appeal from a judgment of the fifth department of the -supreme court, affirming a judgment in favor of the plaintiff.

      William Spargur, for app’lts ; Charles H. Brown, for resp’t.

      Affirming 52 St. Rep. 935.

   Earl, J.

This action was commenced in August, 1881, to recover 37 acres of land situated in Allegany county. It has been twice tried before referees, the trials resulting each time in a judgment for the plaintiff, and the last judgment has been unanimously affirmed by the general term.. In April, 1852, Thadeus Sherman owned a large tract of land, including the land in question, and he conveyed the entire tract to Alexander S. Diven. Eor the purpose of securing a portion of the purchase money, Diven and wife executed a mortgage to Sherman. On the same day they also executed another mortgage to William J. Forbes. Both of these mortgages were subsequently assigned to Gfeorge M. Diven, and by him they were foreclosed, and Charles J. Langdon became the purchaser of the premises at the foreclosure sale. He subsequently, in July, 1878, conveyed the land in question, with other land, to the plaintiff, and it is without dispute that she thus obtained the legal title to the land. The defendants Spargur and Dot}1-, under whom the other defendants justify, claim to have an equitable defense to the action, and claimj too, a conveyance of the land, growing out of the following facts : In 1854 Alexander S. Diven conveyed the entire tract of land to Jarvis Langdon, and in 1859 Langdon conveyed one-half of the land to Ballard and Sampson, and in 1861 they gave Lester Dyke a contract for 200 acres of land, which included the land in question. In 1867 Dyke conveyed the land in question to Charles Riñe, and in 1877 Rifle contracted the land to Mrs. Hodgkins, and in 1880 she conveyed the land to the defendants Spargur and Doty. Dyke and Rifle were parties to the foreclosure action, and, at the time of the commencement of that action, Rifle was in the possession and occupancy of the land in question, and neither Diven nor Langdon had any notice of any rights or interest of Mrs. Hodgkins in the land. The defendants claim, and gave some evidence tending to show, that, prior to the commencement of the foreclosure action, George M. Diven, by the authority of Charles J. Langdon, made a verbal agreement with Lester Dyke and all others holding contracts from or under Ballard' and Sampson that, if they would not interpose any obstacles in the way of the foreclosure, all their rights by virtue of their respective contracts should be protected, upon the payment of the balance due upon such contracts, and their pro raía share of the costs of foreclosure and some taxes. Rifle did not claim from Langdon, after the foreclosure sale, a deed of the land in question, but he consented and requested that the deed therefore should be given to the plaintiff. To secure the purchase money of the land conveyed to her, she gave to Lang-don a mortgage thereon for the sum of about $700. Upon these facts, and others of little significance, the defendants Spargur and Doty claim that they are equitably entitled to a conveyance of the land, free Erom the last-mentioned mortgage.

In addition to the reasons assigned in the able opinions of the two successive referees before whom this action was tried, which it would be a waste of time to repeat, the. following reasons niay also be given for sustaining the recovery by the plaintiff:

1. The defendants came into court confronted with the undisputed fact that the plaintiff has the legal title to the land. They rely upon an equitable claim which, in their defense to this action, they were bound to establish , as they would have been bound to establish if they had commenced an action for the same equitable relief. In September, 1865, Lester Dyke conveyed the land in question to Ebénezer M. Robinson, by a deed acknowledged September 7, 1865, and recorded February 22, 1866. fjlhe deed acknowledged a consideration of $350. Subsequently, Robinson gave Dyke a mortgage for $350, dated February 26,1866, and acknowledged March 10, 1866. That mortgage was assigned by Dyke to Darius 0. Judd on the 22d day of March, and the mortgage and assignment were recorded April 2, 1866. The defendants did not, at the trial, offer any explanation of these documents, and they show that Dyke had parted with all his interest in the land at least a year before his conveyance of the same land to Rifle, through whom, the defendants claim. It thus appears that Spargur and Doty never acquired a particle of title, legal or equitable, to the land, and that they have no standing to enforce a conveyance thereof to them by the plaintiff. It is possible that these facts admit of some explanation, but such explanation should have come from the defendants. With these facts in the record undisputed and unexplained, the title of Robinson and of the holder of his mortgage could not be subverted by a conveyance to Spargur and Doty under any judgment in this action. No facts are alleged in the answer, and none were proved upon the trial, which estop the plaintiff from disputing the conveyance of Dyke to Rifle or any of the conveyances under which Spargur and Doty claim. At the time she took her deed from Langdon, she did not have actual or implied notice that any one but Rifle had any interest in this land under the Ballard and Sampson contract, and he gave up his interest and consented to the conveyance to her. It is immaterial that there is no finding by the, referee as to the facts relative to the deed to Robinson. Those facts are undisputed, and may be considered for the purpose of upholding the judgment.

2. But, if the obstacle in the defendants’ pathway just pointed out did not exist, their defense must still fail. The title of Spargur and Doty depends upon the contract given by Ballard and Sampson to Lester Dyke. He had no deed, and when he conveyed to Rifle, if he conveyed anything, it was his interest under .the contract, and he-simply gave Rifle a right to a conveyance of the land from Ballard and Sampson, upon pérformance by him of the contract. Neither Dyke nor Rifle ever performed the contract, and Mrs. Hodgkins did not perform it. Nor did Spargur and Doty perform it. They did not even offer to perform it in their answer, which was served about 20 years after the date of the contract; and upon the trial' of the action, about 30 years after the date of the contract, there was no offer on the part of the defendants to perform the contract, and it did not appear that they were ready, willing, or able to perform it. Even if any obligation rested upon Langdon or the plaintiff to protect that contract, or the persons holding or claiming any land under it, the protection was not due until they paid the balance due upon the contract, besides costs and taxes. The plaintiff stands in the place of Langdon, and she could not, in any event be deprived of the land in question until payment to her in accordance with the alleged agreement upon which the defendants base their equities. Tire defendants cannot now claim that the referee ought to have provided in the j udgment awarded by him that, upon making such payment, Spargur and Doty should have a conveyance of the land, because they did not ask for such relief, and did not place themselves in a position to be entitled to it.

3. But, passing by these obstacles to the defendants’ success, there is another obstacle which they did not overcome. Mrs. Hodgkins did not have any deed of the land. She had only a contract for a deed, and when she deeded the laud to Spargur and Doty she simply transferred to them her rights under her contract with Rifle, and they took her place. The contract was made in April, 1877, and has never been performed. Mrs. Hodgkins not only did not perform on her part, but actually disabled herself from performance; and Spargur and Doty never performed it, never offered to perform it, and are actually unable to perform it. Their rights depend upon that contract, and they were bound' to show that they had some subsisting rights under it before they were in a position to assert any equities in this action. The plaintiff cannot be compelled to vest them with the legal title to the land while they are not entitled to a conveyance thereof from any one. Rifle has a right to be heard in reference to the performance of his contract with Mrs. Hodgkins, and he is not a party to this action. At the time of the conveyance by Langdon to the plaintiff, Rifle-evidently ignored or repudiated that contract; and no one can say, from anything appearing in this record, that he did not have the right to do so. Spargur and Doty were bound to make a case entitling them to a conveyance of the land, as if they had, as plaintiffs, brought an action for that purpose ; and it is entirely clear that they did not make such a case.

For these reasons, and those given by the learned referee whose decision is, under review, the judgment should be affirmed, with costs.

All concur, except Andrews, C. J., not sitting.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Norfolk and New Brunswick Hosiery Company, Resp’t, v. Anna M. Arnold, App’lt.

      (Court of Appeals,

      Filed October 9, 1894.)

    1. Injunction—Successive suits.
    An injunction will lie to restrain’ successive suits for royalties accruing under a continuing contract, where previous action involving all the issues between the parties, has been appealed, and a sufficient bond given for the payment of all damages.
    2. Same—Constitutional law.
    An injunction, which restrains the prosecution of a number of actions, pending an appeal from a judgment determining all the questions involved, does not deprive the plaintiff of his constitutional rights to enforce his demands.
    Appeal from an order of the general term of the second department of the supreme court, reversing an order granting an injunction.

      Frank M Blackwell, for app’lt; Walter D. Fdmonds, for resp’t.

      Dismissing appeal, 59 St. Rep. 152.

   Earl, J.

(after stating the facts).—The claim of the defendant is that, upon the facts made to appear in this case, the court had no jurisdiction to stay proceedings in the common pleas action, and the commencement of further actions to recover royalties under the contract between the parties. . The jurisdiction of a court of equity by action to restrain proceedings in actions pending in courts of law should be sparingly exercised, and only when other remedies are inadequate, and the equities invoking its jurisdiction are apparent and strong. There is no hard and fast rule about it, and every case must depend largely upon its own circumstances. Pom. Eq. Jur., § 1371; Hart v. Mayor, etc., of Albany, 3 Paige, 381; Erie Railway Co. v. Ramsey, 45 N. Y. 637; Third Ave. R. Co. v. Mayor of New York, 54 N. Y. 159; Schuehle v. Reiman, 86 N. Y. 270. The purpose of this action is to compel the settlement of the controversy between these parties in the one action, and thus to prevent multiplicity of actions, and that is a purpose usually favored by courts of equity. A cáse appealing more strongly than this to an equity court for relief could rarely be found. There appears to be an honest controversy between the parties, the plaintiff and its counsel believing that it has a good defense to the royalties claimed. The amount involved in the controversy is large. One action involving the expenditure of much time and money has been tried, and the defendant has a judgment establishing her right. The plaintiff desires to bring that judgment under review, if necessary, in the court of last resort, and the defendant intended and threatened to proceed in the common pleas action, and to commence other actions for successive installments of royalties, and the plaintiff was absolutely barred of any defense to such action by the estoppel of the judgment she had already recovered; and thus inevitably it would be subjected to large expenses and costs. She could enforce payment of her judgments, and, being substantially irresponsible, it might lose all the money it was oblige to pay, and thus be subjected to irreparable loss. The plaintiff was without other adequate relief, and even if it might, from the common pleas, probably obtain a stay of the action there pending, no court of law could stay the commencement of successive actions, and thus the piling up of unnecessary costs, Under such circumstances, we think it was a wise exercise of its jurisdiction for the court in this action to grant the injunction upon terms adequate lor the defendant’s protection. She had ample security for the payment of her royalties to an amount exceeding $100,000, and a stipulation which will end all litigation in case of the affirmance of her judgment or the dismissal of the appeal. Thus all her rights and interests are fully protected, and she should not be permitted to harass and oppress her adversary with unnecessary litigation.

The defendant claims that' this injunction, so far as it prevents the commencement of further actions to enforce the payment' of her royalties, is illegal, violating her constitutional rights. But she is not deprived of her remedy upon her .contract. Her actions are simply stayed, with adequate security for her protection; not arbitrarily, but simply until her right to recover royalties is finally determined in an action involving all the questions upon which the rights of the parties depend. This stay is granted, not by the arbitrary fiat of the legislature, but in a judicial proceeding in which she has had an opportunity to be heard. Such stays,, granted in regular judicial proceedings to promote the ends of justice, violate no constitutional right, and are not uncommon in jndicial annals. The case of Eldridge v. Hill, 2 Johns. Ch. 281, must not be given too wide a scope as authority. There the purpose of the equitable action was to restrain the commencement of successive actions to recover damages for a nuisance. There the plaintiff could have prevented the successive suits by abating the nuisance, and that he could have done without any considerable loss or damage to himself, and hence the resort to the equitable action was unnecessary. Here the plaintiff could do nothing to prevent the multiplication of suits, and, bound hand and foot by the estoppel of the first judgment, it was at the mercy of the defendant, except for such relief as it could get'in a court of equity by such an action as this. Therefore, as the court had jurisdiction to grant the injunction, its discretion is not reviewable here, and the appeal must be dismissed, with costs.

All concur, except Andrews, Ch. J., not sitting, and Bartlett, J., not voting. Appeal dismissed.


author: Follett, J.

text:
    The Bank of British North America, App’lt, v. Richard Delafield, Resp’t

      (Supreme Court, General Term, First Department,

      Filed October 12, 1894.)

    1. Appeal—Error cubed.
    An error in admitting evidence is cured, where such evidence is subsequently excluded from the consideration of the jury.
    2. Evidence—Documentary—Account books.
    Subequent entries in the firm books are not admissible in favor of the firm against a retired partner.
    Appeal from a judgment dismissing the complaint, entered on a verdict directed by the court, and from an order denying a motion for a new trial, made on the minutes.

      Hugh L. Cole, for app’lt; John B. Parsons, for resp’t.
   Follett, J.

Neither party requested that any question of fact, other than the one embraced in the finding, be submitted to the jury, and no objection was raised to the form of the finding. The only questions involved in this appeal are: (1) Was the answer to the question contrary to the weight of evidence? (2) Were errors committed in the reception or injection of evidence ? (3) Did the court err in refusing to charge the jury that the plaintiff might recover in case thé defendant was not entitled, under the state of the accounts, to withdraw $25,000 from the firm’s assets on the 31st day of December, 1887, even though a loan was not contemplated ? The evidence shows that the defendant charged $25,000 to himself on the books of the firm, as a partnership item, on the day the money was drawn, and that December 31, 1887, January 31, 1888, February 29, 1888, March 31, 1888, and May 10, 1888, 'trial balances showing the state of the accounts of the New York .office on those dates were rendered, which included the item of $25.000 as a charge against the defendant in the partnership accounts. Whether the trial balance of December 31, 1887, was sent to San Francisco, does not definitely appear, but those subsequently,rendered were mailed. The new firm, of which the defendant became a member, acted as the agents of William T. Ooleman & Co. un.til their failure, and it does not appear that the $25,000 was asserted by the firm to be. a loan to the defendant, instead of an item between partners, to be adjusted On accounting, until April, 1888. The defendant testified that the $25,000 was not taken as a loan, and there is little evidence to support the contention that it was agreed between the..firm and the defendant that the sum was to be loaned to him. Neither of the partners who continued in the firm was sworn in respect to the transaction, and ■ the only evidence that a loan was ever contemplated is derived from defendant’s telegram to William T. Coleman, of December 31, 1887, and the telegram in reply, dated the next day, and William T. Coleman’s letter of December 13,' 1887. Coleman said in his telegram and letter: “Will not, can-mot consent to anybody drawing one dollar, beyond necessities of living, until after liability is liquidated, but will lend you the money.if you can negotiate it without interfering with our needs and regular business. Our payables precede any other consideration.”

Nowhere in the' correspondence is there a distinct and unequivocal offer to loan defendant $25,000, or any other sum. It may be that the evidence may have authorized an inference that this advance was considered as a loan, but it does not require that such an inference should be drawn by the jury; and we think, as the question of fact was fairly submitted by the court to the jury, that the answer to the question should not be set aside as against the weight of evidence. In case special findings are submitted to a jury, pursuant to §§ 1187 and 1188 of the Code of Civil Procedure, which embrace all the material issues of fact, and are answered, rulings upon questions of evidence not relevant to the findings submitted are to be disregarded on appeal; and so are the exceptions to refusals to charge, unless the requests are germane to the questions submitted. It often happens, on trials, before the true issue is developed, that irrelevant evidence, of a nature likely to affect a general verdict, is received over the objection and exception of one of the litigants, but if the special finding submitted excludes the incompetent evidence from the consideration of the jury the error is not a ground for a new trial. Thomp. Tr., § 2699. One of the objects of submitting a special finding is to prevent juries from returning verdicts on their general notions of right and wrong, often influenced by irrelevant evidence or by the arts of skillful counsel, and to compel them to determine whether the facts on which the right to recover depends do or do not exist.

This brings us to the consideration of the two rulings on the admissibility of -evidence, which, it is urged, are erroneous. The firm kept a set of books at San Francisco, in which considerable sums were charged against the defendant after he had withdrawn from the firm. These entries were not authorized by him, nor were they made with his knowledge, nor was it proved that all of the items charged were just, as between the defendant and the firm. It is apparent, without discussion, that these entries made by the San Francisco partners were not competent against the defendant upon the issue whether it was agreed that the sum withdrawn December 81,1887, was a loan. Entries against the interest of the persons making or authorizing them are competent against such persons, but self-serving declarations made by some of the partners after the dissolution of .the firm were incompetent as against the defendant. Before the plaintiff rested, evidence was 'received which, it is asserted, tended to show that nothing was coming from the firm to the defendant on the 31st of December, 1887. In answer to this, defendant was permitted to introduce in evidence, over the plaintiff’s objection and exception, a telegram dated San Francisco, November 11, 1886, signed “ William T. Coleman & Co.,” and received at New York, stating that the profits of the firm for that year were $325,000. It is clear that this evidence was not relevant to the issue whether more than a. year afterwards the defendant borrowed $25,000 of the firm, and it could not have affected the jury in their consideration of this issue. These are all of the objections relating to the admissibility of evidence which are discussed by the plaintiff.

The plaintiff insists that there were two material issues of fact which were not submitted to the jury : (1) Was there a balance exceeding $25,000 due plaintiff from the firm ? (2) Was it out of that balance that defendant drew the specific sum which is the. basis of this action ? The plaintiff did not request the court to submit either question to the jury, and took no exception to the direction of the general verdict. On the contrary, the plaintiff requested the court to charge (fifteenth request) that defendant was indebted, December 31, 1887, to William T. Coleman & Co., in the sum of $27,210.99. Asking the court to rule that a fact is established is quite different from requesting the court to instruct the jury to find whether such fact is established.

The court ruled that if the transaction were a loan the plaintiff was entitled to recover, but, if not, it was not entitled to recover. The plaintiff preferred several requests, couched in different terms, but all based on the theory that the plaintiff would be entitled to recover if the defendant? at the time he drew the $25,000, was indebted to the firm, instead of having a credit therewith. These requests were refused, and the plaintiff excepted. In this there is no error. As before stated, the jury did not find, nor was it asked to find, whether the defendant drew more from his firm than he was entitled to draw. The only evidence bearing on this question is found in the trial balances and accounts based on the estimated value of the firm’s assets and the amount of its liabilities. It is common knowledge that the results shown by such balances and accounts are riot often realized when the assets are converted into money and the liabilities are discharged. There was no evidence from which it could have been found how much the defendant will be indebted to or entitled to draw from the firm when all of the assets shall be converted into cash, and the liabilities paid off. The evidence does not disclose the state of the accounts of the other partners, and so it was impossible for the jury to find as a fact, or for the court to decide as a matter of law, what the defendant’s interest was in the firm on the 31st of December, 1887.

It should be borne in mind that this is a strictly legal action, brought to recover a sum of money alleged to have been loaned by the plaintiff’s assignor to the defendant. It was tried on that theory, and the plaintiff was beaten on the question of fact which it tendered; and it now seeks to recover on the theory that the defendant was indebted to the firm in more than the sum claimed, and that in equity he ought to pay it over to the plaintiff. How much.the defendant is indebted to the firm, of which he was a member, or to his late partners, cannot be ascertained until there is a final accounting; and, if then it shall appear that he is indebted, it would seem more equitable that his liabilities to the late firm should be applied to the payment of the debts of that firm, and not in payment of the debts of the new firm, of which he was not a member, and which became insolvent. It seems h> us that the learned trial judge apprehended the true question of fact in the case, and correctly decided every legal question presented to him.

The judgment and order should be affirmed, with costs.

Parker, J., concurs; Yan Brunt, P. J., dissents.


author: Per Curiam.

text:
    Richard C. Sibley, App’lt, v. The New York Times Publishing Company, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October 12, 1894.)

    Deposition—Discovery and inspection.
    In an action on a contract alleged to be in defendant’s possession, plaintiff is entitled to inspect it to enable him to prepare his complaint,, where it is not shown that it is not within the defendant’s control.
    Appeal from an order, vacating an order requiring the defendant to permit the plaintiff to inspect certain documents.

      Frederic R. Kellogg, for app’lt; B. F. Einstein, for resp’t
   Per Curiam.

On March 29, 1893, the defendant was incorporated under the laws of ibis state, with an authorized capital of $1,250,000, divided into 12,500 shares of $100 each. Before March 29, 1893, several persons, who may be called promoters, interested themselves in obtaining subscriptions for shares in the corporation to be thereafter organized for the purpose of purchasing and conducting the New York Times. The plaintiff signed a contract by which he agreed to subscribe and pay $50,000 for 500 shares. At some timé, the date not appearing, the plaintiff paid $15,000 on his subscription, arid on April 7,1893, signed a contract by which he agreed to pay $35,000 to three of the promoters, or to their assigns, three months after date, with interest from April 1,1893. The plaintiff refused to perform this contract, and in August, 1894, the New York Times Publishing Company brought an action in this court against Sibley to recover the $35,000, alleging that it was the assignee of the contract. On July 17, 1894, this action was begun by the service of a summons without a complaint. On August 31,1894, the plaintiff verified a petition in which, it was stated that the action was brought to rescind the subscription contract on the groünd that it was obtained by fraud and deceit, and on the further ground that the corporation and its promoters had failed to perform the contract under and by which the subscription was obtained. It is further stated in the petition that it is necessary that the plaintiff be permitted to inspect the original subscription contract, the contract for the payment of $35,000, and the assignments of said two contracts, to enable him to prepare and serve his complaint in this action, and that repeated demands to be permitted to’ inspect those documents had been refused. Upon this petition a motion was made for an order requiring the defendant to permit the plaintiff to inspect these documents. The defendant, by its officers, denied that the plaintiff was defrauded or deceived, and denied that it or its promoters had failed to perform the contract under which the subscription was made.

We are unable to see any reason for refusing the plaintiff permission to sée the original contract for the payment of $35,000, or the original Subscription agreement, and the assignments of those two contracts, if any there are. The plaintiff is a party to these papers, and one of them, at least, is in the possession of the defendant. He has a right to know whether the agreement set up in the action in which he is a defendant is an exact copy of the original, and no harm can b?e done to the rights of this defendant in permitting such an inspection. Nor are we able to see why the plaintiff in this action should not have the right to inspect the original subscription agreement. The only reason given by the defendant for refusing this right is that on certain dates named the contract was not in its possession. It is not stated in the defendant’s affidavits that this contract was not within the control of the defendant, or of its officers or agents. We think that the right of the plaintiff to have an inspection of these two documents, and of the assignments of them to the defendant, if assignments in writing have been made, is clear. In case it shall turn out that the first subscription contract is not in the possession or within the control of the defendant, or of its officers or employes, it can apply to be relieved from the part of the order requiring it to file that contract for inspection, and then it can be determined whether a reference shall be ordered to ascertain its whereabouts. The order appealed from should be reversed, with $10 costs and disbursements.


author: Parker, J.

text:
    New York Security and Trust Company, Resp’t, v. Manhattan Athletic Club et al., Def’ts. Walton Storm, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 12, 1894.)

    1..Bills and notes—Non-negotiable.
    The appearance of a seal does not operate to deprive a non-negotiable promissory note of its character as a promissory note.
    2. Same.
    Nor is its character affected by a clause pledging collaterals and providing for the substitution of other collaterals under certain conditions.
    3. Same—Liability of indorser.
    One who writes his name on the back of such a note is liable either as a maker or guarantor.
    4. Pleadings—Complaint—Bills and notes.
    The complaint, in an action to charge the indorsers on a non-negotiable note as makers or guarantors, was held, in this case, to be sufficient.
    ■ Appeal from a judgment overruling a demurrer to the complaint.

      Samuel R. Taylor, for app’lt; Howard A. Taylor, for resp’t.
   Parker, J.

The complaint to which the defendant Storm has demurred upon the grounds which will be later considered alleges in substance: That the defendant corporation, for value received, at a certain date duly executed and delivered to the plaintiff a promissory note, of which a copy, with the names and indorsements on the backs is as follows:

“$25,000 New York, July %5, 189%.

Six months after date, without grace, we promise to pay to the New York Security & Trust Co., at the office of said company in the city of New York, twenty-five thousand dollars, for value received,” etc. [Here follow the ordinary clauses in a collateral note.]

“ [Seal.] The Manhattan Athletic Club,

“ By G-eo. W. Carr, President

That prior to the delivery of the note the defendant Storm and ten other individuals, “for valuable consideration, and for the purpose of inducing plaintiff to make said advance and accept said note, placed their names upon and delivered -to plaintiff said note so indorsed, in order to secure payment thereof to the plaintiff, and for the purpose of becoming liable to the plaintiff for such payment, and said defendants thereby became liable to the plaintiff for the payment thereof. That plaintiff relied upon the obligations of the defendants, and was thereby induced to, and therefore did, make said advance and accept said note.” That thereafter the note was delivered to the plaintiff, which has ever since been the legal holder and owner thereof for vale.

It is evident the instrument is not a negotiable promissory note. That it is a non-negotiable promissory note seems equally' clear. Daniel, in his work on Negotiable Instruments (volume 1, § 28),- defines a promissory note as “ an open promise, in writing, by one person to pay another person therein named, or to his order, or to bearer, a specified sum of money absolutely and at all events.” In Hall v. Farmer, 5 Denio, 484, a promissory note is stated to be “a written engagement by one person to pay absolutely and unconditionally to another person therein named, or to his order, or to the bearer, a certain sum of money at the specified time, or on demand, or at sight.” The appellant, however, insists that while this writing may contain all of the essentials of a promissory note, it also includes certain other elements which effectually deprive it of that character:

First. Because upon the face of the instrument there is a seal. The copy of the note set up in the complaint contains the word “seal,” but there is no other reference to it in the pleadings, either to show whose seal it was, or by whose authority affixed, nor does the note itself contain any reference to the seal. It may be further said that the note contains affirmative evidence that the parties to it did not intend to take away from if the character of a promissory note, because in the clauses—which we have refrained from quoting because of their length, and which are of the same general character as those usually found in collateral notes—the instrument repeatedly describes itself as a note. Under these circumstances it cannot be said that the mere appearance of the seal operates to deprive it of its character as a promissory note. Weeks v. Esler, 68 Hun, 518; 52 St. Rep. 758; Chase Nat. Bank v. Faurot, 72 Hun, 378; 55 St. Rep. 179.

Second. It contains a provision pledging collateral, and for the substitution of other collateral under certain conditions. These clauáes are usually found in notes secured by collateral, and do not change the character of the instrument. See cases cited in 1 Daniel, Neg. Inst. § 48.

One of the grounds of demurrer is that the complaint does not state facts sufficient to constitute a cause of action against the defendant Storm. As to notes not negotiable in form it has been regarded since the decisions in Richards v. Warring, 1 Keyes, 576, and Cromwell v. Hewitt, 40 N. Y. 491, as authoritatively settled in this state that the payee or holder may charge the party who puts his name on the back of the note as either maker or guarantor according to the actual intention. These cases substantially proceed upon the principle that as to notes not negotiable'no contract of indorsement, in a legal sense, can be presumed from the position of a_ person’s name _ upon the back of the notes, and, as he must have’ intended to bind himself in some capacity, the court will construe his contract to be that of either co-maker or guarantor of the maker. The effect of these decisions, it will be observed, is to hold him who writes his name upon the back of a nonnegotiable note to a greater, or at least different, liability than were he an indorser on a note negotiable in form; for in the latter case he only agrees that he will pay the note to the holder on receiving due notice that the maker, upon a demand, made at the proper time and place, has neglected to pay it; while in the first case he is treated as co-maker with, or guarantor of, the maker, and not entitled to notice of demand and nonpayment by 'the maker in order to charge him with liability. These decisions have been subjected to some criticism in other jurisdictions, but not in this state, at least by the court of last resort, and they are, of course, controlling. In Richards' Case a recovery was sustained against George 0. Warring, who wrote his name upon the back of a note which read as follows

“One year after date we promise to pay Platt Richards eight hundred dollars, with interest. Yalue received.

“Amsterdam, April 1st, 1857. James E. Warring,

“James B. Chapman.”

The referee found that:

“On the 6th of April, 1857, James E. Warring and James B. Chapman made the note in suit, and bn the same day, before delivering the same to the payee, JamesE. Warring took-the note to George 0. Warring, to obtain his signature thereto, and thereupon George 0. Warring wrote his name across the back of the same ; and that afterwards, on the same day, the note so signed was delivered by Warring & Chapman to Platt Richards, the payee, and he thereupon advanced to Warring & Chapman the amount of the note on the credit thereof.”

Upon these facts the referee held that George 0. Warring signed the note with the intent to become liable to pay the same to the payee, and that the plaintiff was entitled to recover against all the defendants the amount due on the note, and ordered judgment accordingly. In affirming the judgment, Judge Hogeboam, who delivered one of the opinions of the court of last resort, after discussing the relation between Warring and the other parties to the paper, which his signature entailed upon him, said:

“What precise name such a relation entitles him to it is perhaps not indispensable to determine, as I think a complaint setting out the circumstances under which the note was executed, the manner of the signature, and the intent of the party to become liable thereon, would show a cause of action which would entitle the plaintiff to recover.”

We have referred thus fully to 'the facts found by the referee, and to the comment of the court touching the allegations in a complaint necessary to charge one' who indorses his name upon a nonnegotiable note, because it is claimed that if it be assumed that a complaint could be so framed as to charge the defendant Storm under the decision in Richards' Case, this complaint is nevertheless demurrable because of the insufficiency of its allegations. Now, turning to that portion of the complaint which we have already quoted, we find alleged not only the circumstances under which the note was executed, and the manner of the signature, but that the defendant wrote his name upon the back of the note in order to secure payment to the plaintiff, and for the purpose of becoming liable to the plaintiff for such payment, and that thereby he did become liable to the plaintiff. Without further comment, it is sufficient to say that under Richards' Case this pleading is ample to charge the defendant with liability on the note. It is not likely that the point would have been made but for Cawley v. Costello, 15 Hun, 303, in which the court said : “ The complaint seeks to charge the defendant only as an indorser, but, the note not being negotiable, the defendant Costello can only be made liable as maker or guarantor; and, if the plaintiff seeks to charge the defendant Costello in either of those characters, he must aver that he wrote his name on the back of the note with intent to become liable thereon in such character.”

If this decision should be regarded as in conflict with Richards v. Warring and Cromwell v. Hewitt, it would not embarrass us in the disposition of this case, because, while a later decision, it does not, of course, overrule them. But we think the court did not intend to'say anything in conflict with the views expressed in those cases which were cited by it in support of the decision made. The additional step taken was doubtless due to the failure of the author of the opinion to keep clearly in mind the different senses in which certain words and terms are used when applied to parties to promissory notes. The complaint, so says the opinion, charged the defendant with being an indorser on the note, which was not negotiable, and the judge, having in mind that the legal relation of one who writes his name upon the back of a nonnegotiable note is not that of an indorser, proceded .with an argument intended to show that a different legal relation must be, in effect, charged,—a proposition undoubtedly sound, and yet that may be done even when it is alleged that the party sought to be charged indorsed the note; for in a physical sense he indorses the note when he writes his name upon the back of it. So, if the allegations of indorsement be accompanied by a history of the circumstances attending the execution and delivery of the note, and a charge that the indorsement was made upon the back with the intent to become liable to the payee thereon, a different legal relation to the other parties to it than that of indorser on a negotiable note is charged. We cannot know precisely what was stated’in the complaint, but it is quite evident that it was not alleged that he wrote his name on the back of the note with “ intent to become liable thereon,” for the court asserted the necessity of such an allegation, and caused the words to be italicized in the published opinion. This was, of course, in accordance with the rule in Richards’ Case, and required the decisión made. But in giving the reason for it the court, losing sight for the moment of the fact that the word “indorser” could be employed in more senses than one, was led to the use of language which will admit of the construction that, in addition to pleading all the facts, and alleging that the act of indorsement was done with intent to become liable thereby to the payee, the pleader must assert in affect that the so called “ indorser ” understood the legal relation which he wanted to assume towards the .other parties to the note, and therefore signed it with intent to become liable thereon as co-maker, or surety for the maker, as the case might be. The proposition needs but to be stated to insure the conviction that such a ruling was not intended,'or, if intended, that it was error.

There are other grounds of demurrer, but with their consideration at special term we are content. The interlocutory judgment should be affirmed, with costs, but with leave to the defendants to answer within twenty days, upon, the payment of the costs in the judgment and of this court.

All concur.


text:
    Henry Peyser, App’lt, v. Coney Island and Brooklyn Railroad Company, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October 12, 1894.)

    1. New trial—Newly discovered evidence.
    Wliere it does not appear whether the verdict for defendant was based on the contributory negligence of plaintiff or the non-negligence of defendant, a motion for a new trial on the ground of newly discovered evidence as to defendant’s negligence will be disposed of as though the jury had found his non-negligence.
    2. Same.
    CJpon such application, the' credibility of the proposed witnesses will not be passed on.
    3. Same.
    Reasons, assigned for granting a new trial in this case on the ground of newly discovered evidence.
    Appeal from an order denying a motion for a new trial, on the ground of newly discovered evidence.

      Otto ITorwitz, for app’lt; Wm. N. Dyhman, for resp't.
   Parker, J.

Plaintiff, on Decoration Day, 1891, fell from the front part of the latter of two of defendant’s cars, w hich, coupled together, were making a trip from Brooklyn to Coney Island. The fall resulted in the loss of both his legs, which were crushed by the wheels of the car. He attempted to convince the jury on the trial of the action that the injury was due to the negligence of the defendant. The court submitted to them two questions: (1) "Was the defendant negligent? (2) Did plaintiff’s conduct contribute in any degree to the injury? The jury rendered a verdict in favor of the defendant, but whether it was founded upon a finding that the defendant was not negligent, or that the plaintiff’s negligence contributed to the result, the record does not inform us. Therefore, in passing upon the merits of the application made at special term for a new trial, upon the ground of newly discovered evidence, not strictly cumulative, tending to establish the negligence of the defendant, we must dispose of the question as if the jury found that the defendant was not negligent.

Whether the testimony which the plaintiff, by the affidavits of proposed witnesses, shows he will be able to produce upon a new trial, if one be granted, be of such importance as to make it tbe duty of the court, in tbe proper exercise of the judicial discretion committed to it itf' such cases, to grant the application, will be more readily apprehended if the issues presented by the pleadings and some of the incidents of the trial be first brought to mind. The cars of the defendant company were run by -electricity, the motor car being in front, and fully inclosed, as are street cars generally. It was connected with a second car, which was open, and ordinarily called a “ summer car; ” the connection being made by means of'chains. In the second car there was no electrical apparatus whatever, and it should not have received from the motor car any portion of the electricity conducted to it. Plaintiff alleges in substance, in his complaint, that the injury was caused under the following circumstances: That, when leaving the station at West Brighton, the second car, upon which he had a scat,.was crowded, so much so that a number of persons were obliged to stand up; that immediately in front of him was standing a woman past middle life, and, as a matter of politeness, he gave her his seat, and thereafter continued to stand until, by a sudden jerk of the car, he lost his balance, and was forced to grasp a railing upon the car for support; that this grasp, although strong, did not avail to protect him from injury, because, owing to the defective condition of the electrical apparatus employed to propel the cars, he received an electrical shock of such force that he was hurled from the car,and under the wheels, which, in passing over his legs, crushed and severed them. Upon the trial, plaintiff’s individual testimony fully supported the allegations of his complaint. His testimony as to the reason why he was in a standing position, and the location of the spot on the car where he was standing at the time of the alleged sudden jerk, and the violence of the jerk itself, was corroborated by his companions, Ike Silver, Morris and Harris Groldstein, and Samuel Spies. The last of the four witnesses named further corroborated him as to the direction in which he fell, and as to his claim that, in falling, he grasped an iron post which supported the roof of the car, with his left hand, and, being swung around, seized the dashboard of the car with his right hand, but, as he did so, he lost the grip which his left hand had on the stanchion which supported the roof, and so he grasped the dashboard also with the left hand. Whether he received an electric shock at that moment, as he testifies, was not, of course, corroborated by any one. He did not produce any evidence tending to show that the electrical apparatus was not in good working order; no evidence showing that it was so far out of repair that the dashboard of the trailing car upon which ho was riding had become charged with electricity, which was awaiting but the completion of a circuit to pass on. The plaintiff produced two so-called “experts,” to whom hypothetical questions were put, based in part upon the testimony of the plaintiff, to the effect that he had received an electrical shock, which loosened his hold, and threw him to the ground. Substantially, the evidence- touching the presence of electricity in the trail car at the moment of his falling consisted of plaintiff’s assertion that he did receive a shock. In view of the fact that the defendant produced a number of experts, each of whom testified that it was an utter impossibility that he should have received a shock when he grasped the dashboard of the car, it is at once apparent that his statement that he did receive into his body a current of electricity may have impressed the jury most unfavorably as to the reliability of his testimony. • Upon the question of defendant’s negligence, the testimony of plaintiff’s witnesses that the car started so suddenly and with so violent a jerk as not only to cause the plaintiff to fall from the car, but to occasion the fall of others, although without serious consequences as to them, entitles him to have the jury say whether the accident was thus occasioned, But defendant asserted that plaintiff’s fall was hot due to a sudden jerk of the car, which caused him to lose his balance, but rather to a foolhardy attempt on his part to pass from the trail car to the motor car while they were in motion. So, when the jury came to pass upon this issue between the parties, if they were of the opinion that plaintiff’s testimony about receiving an electrical shock was untrue, quite naturally his testimony to the effect that the car was started with a sudden jerk may have been regarded as of little or no value; for, if a witness speak falsely in one thing, his testimony may be disregarded by the jury in all things, is a proposition too frequently stated not to have found lodgment in some of the jurors’ minds. If it were not a doctrine of the law, conscientious and experienced jurors would likely reach a conclusion not different.

The learned trial judge, in his charge to the jury, especially reminded them that they might consider his testimony in regard to an alleged electrical shock upon the “question as to whether or not you will give credit to the plaintiff and his story.” A further quotation from the charge of the court at this point will be of aid in measuring the value of testimony of the character of that which the plaintiff asks permission to prove upon a retrial: “ Upon the subject that I have referred to, the jerking of the' car, and the position of the plaintiff, if you find that the plaintiff’s testimony and that of his friends is not reliable in that respect, then the defendant would certainly be entitled to a verdict. If that is so, the plaintiff has still failed to carry out the obligation imposed upon him of showing you how the accident occurred. But, if you find that the plaintiff’s version of that was right, thep you come to another state of facts or series of facts in his story, which you must believe before you can find a verdict for him, and that is, did he .receive the electrical shock? for it is on the question as to whether ’or not you will give credit to the plaintiff and his storv that all this matter of electricity in this respect is valuable. What does he say ? He says that he was there in that position in which he might have made himself secure but for receiving a shock of electricity coming from the motor car. Well, gentlemen, you have heard the testimony on that subject, and I am going to leave that to you without much comment. Here is the motor car, with certain equipment, with certain appliances, with certain machinery described to you by the witnesses upon the stand. You have heard how every particle of that car which could conduct electricity was constructed. You have heard how those beams, which were nonconductors of electricity, were placed, and from which it is claimed on the part of the defendant it would be simply impossible that electricity could get from that motor car into the rear car. You will take , all the testimony into consideration, and say whether or not it was possible that the electricity could escape under any conditions, according to the testimony for the defendant, and for the plaintiff, too, from that motor car to the dashboard of the other car.”

Now, it is quite clear that the learned court regarded plaintiff’s assertion that he had received an electrical shock while his hands grasped the dashboard as so thoroughly overborne by the testimony of the scientific witnesses produced by the defendant as to really present no question for the jury in that respect. The shock was alleged by the plaintiff as one of the acts of negligence on the part of defendant which contributed to his injury. If his evidence tended to show it, it was his right to have had that question presented to the jury for consideration. But it was not done, doubtless for the reason already suggested. Nor was an exception taken by the plaintiff’s counsel to the omission of the court to instruct the jury that they should pass upon that question, and not unlikely, because plaintiff’s counsel' appreciated that his client’s assertion would necessarily be regarded by the jury as completely overthrown bj' the positive testimony of the scientific witnesses that it was an impossibility that plaintiff should have received, the shock to which he testified. . Now, plaintiff presented on the motion the affidavits of William, Harnett and Charles H. McNary,—affidavits which, if true, show that it was not only possible for the plaintiff to have received the shock to which he testified, but, farther, that it was substantially inevitable that he should have received it. Their affidavits were to the effect that the electrical apparatus was defective, but in what manner let the affidavit of McNary speak. Harnett’s affidavit is to the effect that he was on that day the conductor in charge -of the cars in question; that on a prior trip between Prospect Park and King’s Highway, but on the day of the injury, he, while ¿ttempting to pass from the trail car to the motor car, received an electric shock which caused him to let go his hold. When he reached King’s Highway, he reported the fact to Charles H. McNary, the electrician in charge of defendant’s car works, whom he informed that he “ would not continue to run the car,” “ and he left it in front of the carhouse.” He made a like report to the superintendent of the defendant; and all of this took place before the injury of the plaintiff. McNary, defendant’s electrician, corroborates fully so much of Harnett’s affidavit as refers to the report made by Harnett to him. He further states that the car was “ turned in ” after the accident, and then he made an examination of it for the purpose of ascertaining how the trail car had become electrically charged, and— Found that the controlling cable of the motor car had come in contact with one of the armature leads of said car. The controlling cable is an endless wire, running from one end of the car to the other, around a sprocket wheel, and returning to the end from which it started. Upon an examination of the car in question, I found that the controlling cable was not properly insulated. I found that it had rubbed against the armature lead, which is the wire which carries the electric current to the armature ; and the cable, thus rubbing against the armature lead, had worn through the insulation, and the car had become charged going in one direction. This armature lead is kept fastened to tise floor of the car by cleats, so that it cannot come in eenteet-with the controlling cabio, but when I examined the car immediately after it was turned' in, as aforesaid, I found that these_ cleats had fallen out or broken off, and that said armature lead came in direct contact with the controlling cable, whereby the insulation on said armature lead had become worn right through by the constant rubbing occasioned by said contact. After I discovered what caused the defect in the insulation, I immediately repaired the same, by winding insulating tape around the wire, and replacing the cleats that had fallen oiit or broken off. I am informed that, on the trial of this action, the plaintiff, Henry Peyser, testified that, when he found himself falling outward towards the street, he grasped with his left hand the upright which was on the first seat to the roof of the car, and, swinging around, he grasped the front platform of the rear car with his right hand,— that is, the dashboard,—and having then lost his grip-with his left hand, which was on the rod, he ’also grasped the dashboard with his left hand, and that, while his hands were on the dashboard, he thought his feet were on the step of the car. He could not tell then whether his feet slipped off, or what next happened. All that he remembered was that he had received an electric shock. Assuming all of this testimony to be true, with the defective insulation of said car as I found it, it would be inevitable that said plaintiff, in the position in which he testifies he was, would receive an electric shock the moment his feet, or any part of his body came in contact with the drawbar or any part of the iron work passing across the end of the trail car under the platform, which the drawbar slid back and forth on. This would be á necessary result of the fact that the motor car was charged, ánd the circuit would be completed through his body by his foot coming in contact with said iron, and, having hold of the dash rail, his body would carry the current to the brake chain, and so on to the ground. The electric shock which he would thus receive would necessarily cause him to relax his hold on the dash rail, as testified to by him, and cause him to fall to the ground. The wearing off of the insulation, as above stated, was not and could not have been a sudden wearing off, but a gradual one; and it is certain that, if the car had been examined prior to each trip, that the defect would have been readily discovered.”

In the light of the statemeut which we have made of the issues and incidents of the trial, including the charge of the court, we have but to read the affidavits of Harnett and McNary respecting the matters which they say they will testify to on a new trial to realize that such testimony, if believed, will likely produce a different result. Defendant, in its answering affidavits on the motion, sought to discredit Harnett and McNary. McNary it claims to have discharged, but this assertion he denies in a rebutting affidavit. Harnett, it is admitted, resigned, but the defendant says of him that he now keeps a drinking saloon, where people of low order congregate. Harnett admits that he sells liquors, but denies that either his house or his customers are of the character asserted in defendant’s affidavits. • Sullivan, defendant’s superintendent, denies that Harnett reported to him the condition of the car, as alleged in his affidavit; but..aa was held in Upington v. Keenan, 50 St. Rep. 474; 21 N. Y. Supp. 699, Presiding Justice Van Brunt, speaking for the court, the question of credibility is one for the jury. Subsequently, the Upington Case was cited, and followed in Phelps v. Delmore, 26 N. Y. Supp. 279, the court saying: “ Whether such new witnesses are entitled to credit or not, ought not to be determined on this motion. That question belongs to the trial court, as. was very properly said in Upington v. Keenan.

In the disposition of this question, then, it will not be assumed that the witnesses speak falsely, nor will the question of their credibility be passed upon. Practically, then, the question must be disposed of on the assumption that plaintiffs affidavits, in so far as they are not either in terms or substance contradicted, are in all respects true. If these premises be correct, it follows that plaintiff’s motion for a new trial, on the ground of newly-discovered evidence, should have been granted. As these facts were within the knowledge of defendant’s employes, and the witnesses to prove them were present in court during the trial, in obedience to the direction of defendant’s officers, although not called, the plaintiff was not negligent in failing to discover the facts in time to prove them on the trial, and the plaintiff should not be charged with costs as a condition of granting the motion. The order should be reversed^ with $10 costs, and the printing disbursements, to abide the event of the action; and the motion for a new trial granted. All concur.


text:
    Charles S. Fairchild et al., Resp’ts, v. Margaret B. Edson, Impleaded, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 5, 1894.)

    Appeal—Time.
    Where no cross answers were served between the defendants, no service of a copy of the judgment by one defendant upon another is necessary to limit the time of appealing as between them.
    Appeal from a j udgment in favor of plaintiff.

      J. L. Cadwallader, for motion; T. Cleveland, opposed.
   Per Curiam.

We are of the opinion that the time for the appellant to appeal has expired. More than thirty days have elapsed since the service upon her of the judgment by the prevailing party, and such appellant has taken one appeal, which has been disposed of by the general term. 59 St. Rep. 163; 28 N. Y. Supp. 401. She now proposes to appeal as against a co-defendant, claiming that her time to take such appeal has not expired, because such co-defendant has not served upon her a copy of the judgment. ■ We do not think that this is necessary, except in cases where cross answers have been served as between defendants, and judgment is entered in favor of one defendant and against another. Where the answers are served only upon the plaintiff, and a single judgment is entered, in which the plaintiff lias substantially prevailed, it would seem that the service of such judgment upon all the defendants sets running the statute of limitation in respect to appeals. This was done in the case at bar, and it would seem, therefore, that the present appellant cannot maintain her appeal as against a co-defendant, the time for appealing generally having expired. The case of Kilmer v. Hathorn, 78 N. Y. 228, has been cited in support of the contention of the appellant herein. It is true that certain language' was used by the court which gives countenance to such contention, but no question similar to the ene now before the court was .involved or was determined by the court in that case. The motion should be granted, with $10 costs.


author: Dwtgkt, P. J.

text:
    In the Matter of Kirk B. Crane, a Judgment Debtor.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

    1. Motion and order—Behearing.
    The court may grant a hearing of a motion, which it has denied through oversight, misapprehension or mistake.
    2. Same.
    Such rehearing may be had on the original papers, where no new or different facts are stated.
    3. Supplementary proceedings—Jurisdiction.
    An order of the county judge, appointing a receiver, does not affect the jurisdiction of the supreme court, in which the judgment was rendered, to make further orders in the proceedings.

      4. Same—Action by receiver—Bar.
    An action by the receiver to recover possession of the property is no bar to a motion by the judgment creditors to compel its delivery to the receiver.
    Appeal from an order directing the judgment debtor to deliver to the receiver certain books of account, and to assign to him a certain land contract,

      Rufus Scott, for app’lt; A. L. Purdy, for resp’ts.
   Dwtgkt, P. J.

On his examination under the county judge’s order, November 17, 1892, the judgment debtor testified that he was then carrying on a livery stable in his own. name, and had done so since the 20th of April then last; that at that time he bought the property from his wife, for the consideration of $1,000; that it consisted of horses, carriages, sleighs, etc., and a contract for the purchase of the lot and barn occupied by the business, which contract his wife assigned to him; that the money paid to his wife was advanced by Howe & Shields, and that he gave them a chattel mortgage on the personal property for their security. He also testified that the personal property was not worth anything beyond the amount due on the chattel mortgage, nor the lot and barn worth any more than the amount due on the contract for its purchase, but that he was willing to assign that contract if he had any interest • in it. He also testified that he kept an account book at the stable in which he kept on account of the business done by him, but there was nothing then due on the accounts. This testimony justified the appointment of a receiver, which was subsequently made by the county judge, and the receiver duly demanded of the judgment debtor the delivery of the books of accounts, and an assignment of the contract for the purchase of the real estate, which were refused. Therefore the judgment creditors moved at special term for an order requiring the judgment debtor to make such delivery and assignment. The affidavit used in support of such motion made by the attorney for the receiver set forth the facts above stated, and, in addition, that at the date of the affidavit—August 24, 1893—the judgment debtor was still in charge of the stable, claiming to be in the employ of Howe & Shields, his successors in the business, but that Howe & Shields made no claim to any interest in the real estate. No opposing affidavit was made by or in behalf of the'judgment debtor, but his counsel made the preliminary objection that the supplementary proceedings were no longer pending; that they were terminated by the order of the county, judge appointing the receiver; and that, if not terminated, the order asked for could be ' made only by the county judge; and the court denied the motion, apparently on the objection thus taken. At the next special term, held by the same justice, the receiver united with the judgment creditors in a motion for leave to renew the former motion, and that the relief then asked for be granted. The motion was made on the same papers as the former motion, and was opposed by an affidavit of the j udgment debtor denying that he had any books of account eicept those belonging to Howe & Shields, in whose, employ he was. There was also an affidavit of the attorney for the judgment debtor verifying the legal conclusion that the supplementary proceedings had been terminated by a final order of the county judge appointing the receiver and taxing costs, and stating that an action had subsequently been commenced by the receiver against Howe & Shields to recover the livery property and its earnings. On the hearing of this motion the preliminary objection was renewed on the same grounds as before, with the addition “ that the moving papers do not show any error or mistake or overlooking of authority or controlling decision or law in the making of the order of September 4, 1893,” which denied the motion, “nor is there any allegation of new fact or different state of facts.” The objection was overruled, and the motion was granted, both for leave to renew and for the relief asked for. We have no doubt that the ruling and decision was within the discretion of the learned judge at special term, nor that the discretion was properly exercised. The motion for a rehearing is very properly granted by the same judge who first denied the motion, when he perceives that his former ruling was due to oversight, misapprehension, or mistake; and such we may assume was the ground on which the rehearing was granted in this case. In Arnold v. Oliver, 64 How. Pr. 452, Judge Daniels, speaking for the general term in the first department, says: “ It was entirely proper, under this rule, where a right created by law has been denied to the defendant under what appears to have been a misapprehension, that an application should be made to the court by whose order the right has been denied for a further hearing of the application. The- court had ample authority to entertain such a motion, as it did.” See, also, White v. Munroe, 33 Barb. 650; Belmont v. Erie Railway Co., 52 Barb. 637; Bolles v. Duff, 56 Barb. 567; Averell v. Barber, 44 St. Rep. 542; 18 N. Y. Supp. 81. And, manifestly, the order, when asked for on the grounds above suggested, may be granted on the same papers as those used on the first application. Arnold v. Oliver., supra.

In 'this case, the motion for a reheáring being granted, no ground was shown on which the relief asked for should have been denied. There was no question of fact involved which could not properly be disposed of on the motion. There was no pretence that Howe k Shields claimed title to- the land contract, nor any substantial 'dispute concerning the title to the book or books of account kept by the judgment debtor while, as he testified on his examination, he was carrying on the business in his own name. So that, even if the - application had been made to the county judge, there is nothing in the limitation of § 2434 of the Code of Civii Procedure to prevent its being granted by him. But the authority of the court in the premises is subject to no such limitation. The whole proceeding supplementary to execution is a proceeding in the action in which the judgment was recovered upon which the proceeding is based. That action is not terminated by judgment, but is pending until the judgment is satisfied, and the proceeding supplementary is a new remedy, arising in the action by virtue of the statute. Wegman v. Childs, 41 N. Y. 159. Or as was said by this court in Smith v. Tozer, 42 Hun, 22, 24; 8 St. Rep. 363, “Although this is a special proceeding, it is such in the action, and auxiliary to the purpose of enforcing the CQllection of the judgment, which is one of the purposes for which the action was brought; and the legitimate remedies attendant upon the proceeding to render it effectual, so far as the order of the court may be required, are taken in the action.” In other words,the general jurisdiction of the supreme court extends to all proceedings in the action in which it originally obtains jurisdiction of the parlies. The commencement of the action by the receiver, mentioned in the affidavit of the attorney for the judgment debtor, can be no bar to this application. That action is in the nature of a creditor’s bill, and necessarily relates to property alleged to have been transferred by the judgment debtor to Howe k Shields, or, as the affidavit states, to the livery property and its earnings. This description does not include either the land contract or the books of account kept by the judgment debtor when he was carrying on the business for himself. There seems to be no objection to the order, either formal or on the merits, and it should be affirmed. All concur.

So ordered, with $10 costs and disbursements.


author: Dwight, P. J.

text:
    Citizens’ National Bank of Corry, Pennsylvania, Resp’t, v. Abijah Weston et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

    1. Pleadings—Answer—Supplemental,
    Where a default judgment against the indorsers on a note inadvertently-included a defaulting maker, but was vacated as to him as soon as discovered, a motion by the answering makers for leave to serve a supplemental answer, setting up the entry of judgment against the defaulting maker, was properly denied.
    2. Same—Change op venue.
    A supplemental answer, which sets up issues to which the testimony of witnesses, for whose convenience a change of venue was obtained, is immaterial, will be denied.
    Appeal from an order denying a motion for leave to serve a supplemental answer.

      J. H. Waring, for app’lts ; George Clinton, for resp’t.
   Dwight, P. J.

The action was-to charge the appellants Abijah and Orren Weston and the defendant William W. Weston as the makers of a promissory note, and several other defendants as its indorsers. The complaint alleged a copartnership between the three Westons, and that the note was made by them in their firm name of Weston Bros. The appellants, Abijah and Orren Weston, were the only defendants who appeared in the action. They answered, denying the existence of the copartnership at the time of the execution of the note, and alleging its fraudulent execution and delivery by the defendant William W. Weston in the late-firm name, and that the plaintiff took it with full knowledge of the facts so alleged.

The indorsers being in default, and their liability being several from that of the makers, the plaintiff was entitled to judgment against the former and a severance of the action to proceed against the defendants answering. Code Civ. Proc. § 456. In entering such judgment, the attorney for the plaintiff, by inadvertence or mistake, included the defendant William W. Weston among the defendants against whom judgment was entered on the 20th day of December, 1893. He learned of his mistake on the 15th day of February following, and thereupon applied to the court at special term to vacate the judgment against the defendant William W. Weston, which was done. The proposed supplemental answer simply sets up the recovery of the judgment against the defendant William W. The motion for leave to serve it was denied at special term, on the ground, among others, that the judgment so entered was absolutely void, and therefore of no effect upon the rights of the defendants answering, and that the proposed supplementary answer was inconsistent with the original answer. We áre not quite prepared to say that either of these grounds was tenable. It is, at least, a disputed question on the authorities, whether the judgment entered, against one of the alleged joint debtors was absolutely void. Bank v. Spencer, 19 Hun, 569, and the cases cited. Nor can we say that the two answers are altogether inconsistent with each other. The original answer denies the allegations of the complaint upon which the existence of a joint liability of the defendants is sought to be established. The proposed supplemental answer would set up new facts which would avoid the joint liability if it ever existed. But we think the motion was properly denied, because the inclusion of the defendant William Weston in the entry of the judgment was merely inadvertent, and the judgment against him was vacated as soon as the mistake was discovered, and before any prejudice to the other defendants (the appellants here) could have resulted therefrom. Moreover, the papers opposing the motion show that, after the entry of the judgment against William, the defendants answering moved for and obtained an order changing the place of trial of the action, for the convenience of witnesses whose testimony would bear only on the issues joined by the original answer, and would be entirely immaterial to the defense proposed by the supplemental answer. The defense so proposed is entirely without merit, and the discretion of the court was well exercised at special term. • The order appealed from must be affirmed. All concur.

So ordered; with $10 costs and disbursements of the appeal.


author: Barrett, J. Follett, J.

text:
    Excelsior Steam Power Company et al., Resp’ts, v. The Cosmopolitan Publishing Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October, 1894.)

    Attachment—-Upon what leviable.
    A claim, the maturing of which depends upon the contingency, of the performance of certain work, is not subject to attachment.
    Appeal from judgment in favor of plaintiffs.

      William L. Findley, for app’lt; Harold Swain, for resp’ts.
   Barrett, J.

The plaintiffs’ difficulty in this case is that the particular debt due by the defendant to Brown, to recover which this action was' brought, was not attached. The attachment was served on the 14th of July, 1890. At that time there was nothing due by the defendant to Brown for the printing of the August magazine. This latter work was not completed upon the 29th of July, 1890, and the defendant’s indebtedness therefor did not accrue to Brown until 30 days after the latter date. This the referee expressly finds. He also finds that the defendant- has paid to the sheriff all the money in which he was indebted to Brown when the attachment of the plaintiff company was served. The rule with respect to the attachment of debts is well stated in 1 Am. & Eng. Ene. Law, p. 696: “The debt for which an attachment will lie must be an actually subsisting debt due, or about to become due, by efflux of time. If the liability be merely possible, and dependent upon a contingency which may never happen, attachment does not lie.”

The rule is similarly stated in Drake on Attachment (6th ed., § 551: “ The debt from the garnishee to the defendant, in respect of which it is sought to charge the former, must, moreover, be absolutely payable, at present or in future, and not dependent on any contingency. If the contract between the parties be of such a nature that it is uncertain and contingent whether anything will ever be due in virtue of it, it will not give rise to such a credit as may be attached; for that cannot properly be called a ‘ debt ’ which is not certainly and at all events payable either at the present or some future period.”

See, also, Wade, Attachm. § 17; Drake, Attachm. (6th ed.) §§ 24, 25; and Mathot v. North River Bank, 6 N. Y. Supp. 498.

The present case is directly within the principle. What was due when the attachment was served has been fully paid to the sheriff. Beyond the sum so paid, there was nothing then due or certainly to become due to Brown. Whether anything more would thereafter become due to him depended upon a contingency; namely, the doing by him of certain work. The printing of the magazine was a condition precedent to the defendant’s liability. Where property sought to be attached 'is incapable of manual delivery, the law as to levying is strict. Thus, it has been held that where the levy is made by service of attachment and notice upon the person against whom the demand is made, the latter must look solely to the notice to ascertain what property is attached, and base his action thereon. Hayden v. Nat. Bank, 130 N. Y. 146; 41 St. Rep. 263. As to property not specified in the notice, the court held that the title was not divested, and the -holder thereof remained liable to the owner. In Anthony v. Wood, 96 N. Y. 185, in was said by the court of appeals that that court had held, il as to the levy permitted to be made upon choses in action,' that the attachment reached and became a lien only upon such debts as at the time belonged to the debtor by a legal title, and for the recovery of which he could maintain an action at law.” The learned referee acknowledges the force of the defendant’s position, and he concedes (citing Bills v. Bank, 47 N. Y. Supr. Ct. 302) that, had another creditor of Brown attached this same debt after the work had been completed and the price earned, such other creditor might well have gained a higher right than that of the plaintiff. He holds, however, that, as no other rights had intervened, the defendant could not rely upon the objection. This latter view cannot well be upheld. If interveners would have superior rights to those of the plaintiffs, it could only be because they had attached the debt, and the plaintiffs bad not. There is no such thing as lawfully attaching the debt as to one person, and not lawfully attaching it as to another. It was either attached, or it was not attached. Here it was not attached, because there was nothing to attach (beyond the sum which has since been paid to the sheriff) when the levy was made. The statute made ample provision for the attachment of the particular debt in question after it became due (Code Civ. Proc., § 644); but tbe plaintiff did not choose to avail itself of the right given by this section to levy ‘•from time to time, and as often as necessary,” until its claim was secured. The learned referee is in error in supposing that the commencement of this action was equivalent to a new and additional levy after the maturity of the debt. The additional levies referred to in § 644 are repetitions of the original levy upon subsequently discovered property, and such fresh levies can only be made in the. manner provided by law for the original levy. Payment to the sheriff without an adequate levy would not pro-. tect the defendant. He could only defend h'imself against Brown by showing that the debt was duly attached.

The respondent’s contention that the estoppel which the referee found against the defendant, with regard to its alleged offset, should also be applied to the maturity of the debt itself, is farfetched, and without merit. The statements upon which the estoppel was found had no bearing upon the maturity of the debt, but solely upon the offset; that is, upon an offset which might be made against the debt when it did mature. The estoppel did not hasten the maturity of the debt, or affect the legal relations of Brown and the defendant with regard to it. The defendant could not well estop itself into presently owing money to Brown (which the latter might never earn) by statements made to influence the plaintiff’s conduct with regard to its rights. This action, it will be observed, is not upon the promise found by the referee in his fifteenth finding of fact, quoted by Mr. Justice Eollett. No such promise is averred in the complaint, nor would the sheriff have been a proper party to an action founded thereon. The present action is strictly statutory. It is brought by the plaintiff in the attachment and the sheriff, jointly, to reduce to possession what was actually attached. Admit that the defendant, as stated in the sixteenth finding of fact, waived all counterclaims which it then had or might thereafter have as against Brown. The question still is, what Was due to Brown, leaving out all question of counterclaims, at the time when the attachment was served? The referee says that the defendant’s indebtedness to Brown did not then exceed $1,651.47, and that the latter sum has since been fully paid. That would seem to dispose, at least, of this particular action. The defendant did not give the sheriff a certificate acknowledging an indebtedness to Brown of $2,459.90. If such a certificate had been given, there would be some ground for the contention that if the plaintiff in the attachment relied- thereon, and failed to attach other property,—a fact, however, which does not appear,—the garnishee should be estopped from denying its accuracy. Short of such a certifícate, or of a distinct representation— made upon or after the service of the attachment, and for the express purpose of influencing’ the sheriff’s action thereunder-— to the effect that the property levied upon belonged or the debt attached was due to the defendant, there can be no estoppel as against the actual fact. It would, indeed, be a strange rule whereby garnishees were to be estopped by admissions made to creditors of their creditor .prior to the issuance of the attach-merit. Here the agreement between the plaintiff company and the defendant was made two days before the attachment was issued. Surely no estoppel was created thereby which could operate upon the attachment proceedings which followed. Whatever rights the plaintiff company may have acquired under the agreement were independent rights, not rights created by estoppel; and such independent rights cannot be impressed ujson its status as attaching creditor of Brown. Brown was not a party to this independent agreement, and the relations between him and the defendant were not altered thereby. The defendant is, in fact, still liable to Brown for every penny which was not lawfully attached. It was one thing for the plaintiff company to proceed against the defendant upon the promise found by the referee; another to proceed against Brown by attachment. As it chose the latter course, it is impossible to hold that the sheriff attached what, in point of fact, was not due to Brown, and what might never become due to him, merely because the garnishee had previously promised such payment to the plaintiff in the attachment.

The referee’s error results from a failure to distinguish between the rights secured to the plaintiff company by the defendant’s promise to it, and the rights which it secured under its attachment against Brown. The attachment was against Brown alone. What the plaintiff company secured thereunder it secured solely in Brown’s right, not in its own. If, therefore, when the attachment was served, Brown had no right of action against the present defendant for the sum here claimed, such sum was clearly not attached. Now, Brown concededly had then no such right of action ; none in his own right; none, certainly, in the right of the plaintiff company ; for the pr.omise made to the plaintiff company was, if anything, as Mr. Justice Follett well observes, a new and original undertaking, founded upon a valuable consideration moving from such company. Keeping this clearly in mind, we think it apparent that the particular claim here sued on was not attached ; for, as we have seen, Brown had no such claim in his own right, and it certainly was not conferred upon him by a new and independent agreement between other parties. It follows that the judgment should be reversed and a new trial ordered before another referee, with costs to the appellant to abide the event. Yan Brunt, P. J., concurs.

Follett, J.

(dissenting).—In 1890 the'defendant was the proprietor of the Cosmopolitan Magazine, which was published monthly; and on the 11th day of February, in that year, it entered into a contract with J. Wilson Brown, by which it sold to him type, for which he agreed to pay $808.43 on the 11th of August, 1890, and by which he also agreed to print and bind several successive monthljn issues of said magazine for a price agreed on, the defendant agreeing to pay the amount due for each issue thirty days after it should be delivered by Brown to defendant. The plaintiff leased to Brown rooms in which he printed the magazine, and power with which to operate the presses. The Grardnier Binding & Mailing Company bound the magazine for Brown; and in June, 1890, he was indebted to-that corporation in the sum of $1,916.86. In June, Brown absconded, and July 3, 1890, the Gardnier Binding & Mailing Company brought an action in the superior court against him to recover $1,916.86, and on the same day attached a debt due from the defendant to Brown. At this date the defendant was indebted to Brown in a considerable sum over all counterclaims for work previously performed. On the 12th of July, Brown wa's indebted to plaintiff for rent of rooms and power. On this date the August number of the magazine was on Brown’s presses. The plaintiff secured from Brown’s books a statement of the accounts between Brown and defendant, which showed that defendant was indebted to Brown in the sum of $2,459.90, and presented the statement to defendant. At this time the defendant had the right to eject Brown from the printing office, and to refuse to furnish him with power.. When the statement was presented to defendant, it asserted that it had offsets against the claim of $2,459.90, but agreed that if plaintiff would not dispossess Brown, and would furnish power to print the August number of the magazine (then on Brown’s presses), it would not set up any counterclaim against the demand of Brown against it, as shown by the statement, and amounting to $2,459.90.

The following are two of the findings in respect to the agreement between the litigants, and they are conclusive on the facts, as the record contains none of the evidence:

“(15) That on the 12th day of July, 1891, the defendant promised and agreed with the plaintiff the Excelsior Steam Power Company, that the defendant would pay the account as presented by Mr. Swain, if said plaintiff would furnish the power and premises, so that defendant could get their magazine, which was then on Brown’s presses; that the said plaintiff furnished such power, and the defendant got their magazine. (16) That on the 12th day of July, 1891,. the defendant, with full knowledge of all the facts and circumstances connected herewith, for a valuable consideration, agreed to waive, and did waive, all counterclaims and setoffs against said Brown which did then, exist or which might thereafter exist in its favor by reason of the business dealings and relations theretofore had between the defendant and said J. Wilson Brown.”

July 14, 1890, the plaintiff brought an action in the supreme court against Brown to recover its debt, and on that day attached the debt owing by the defendant to Brown, and furnished rooms and power for the presses; and the August number of defendant’s magazine was printed, and delivered July 29, 1890, for which the defendant became indebted to Brown in the further sum of $1,415.96, which became due August 28, 1890. February 18, 1891, the defendant paid to the sheriff $1,651.47, which was $808.43 less than $2,459.90. The $1,651.47 was applied on the prior attachment of the Gardnier Binding & Mailing Company, and the defendant refused to pay the $808.43, but asserted its counterclaim for that amount due for type. This action was brought to recover the $808.43 and arrearages of interest.

The proposition that an attachment becomes a lien only on property or choses in action in existence when the writ is levied does not need the support of authority or of argument. A lien by legal process cannot be acquired on nothing. But this proposition does not seem to me to dispose of this case. On July 12, 1890, when the agreement between the litigants was entered into, and on the 14th of the same month, when the plaintiff levied its attachment, the defendant was actually indebted to Brown in a considerable sum over and ábove all counterclaims. This fact is. conceded, and is established by the findings. An attachable subject existed on which the plaintiff by its warrant acquired a legal lien, subject, of course, to the lien acquired by the prior attachment of the Gfardnier Binding & Mailing Company. Had the defendant remained silent, it would have had the right to have asserted whatever counterclaims it had as against the attaching creditors. But it did not remain silent. On the contrary, in the language of the finding, it agreed, that it would pay the account as presented ($2,459.90) if the plaintiff would furnish the power and premises, so that defendant could get its magazine then on Brown’s presses. Pursuant to defendant’s promise,* the plaintiff furnished the premises and the power, and the defendant received its August magazine in time to be issued. By this contract and the plaintiff’s performance of it, the defendant' is bound, and is estopped from asserting, as against the plaintiff, a counterclaim against the indebtedness as admitted on the 12th of July. Suppose the plaintiff had found chattels sufficient to pay its claim in defendant’s possession, which defendant admitted to be Brown’s property, and the. plaintiff had attached them, and, it may be, omitted to take other attachable property. Indeed, the sheriff ..would have had no right to take more property than was sufficient to satisfy the plaintiff’s claim and costs, while in fact the defendant was the owner of part of the chattels seized. In such a case the defendant would be estopped from proving the truth, that he owned part of the goods. Again, suppose that A. has a claim for $1,000 against B., an absconding debtor, and C. tells A. that he owes B. $1,200, which A. attaches, ¡and omits, as he must, to attach other property. C. would be estopped from proving as against A. that, at the time he made the admission, he in fact owed B. only $500,.or nothing. The supposed cases are not different in principal from the one at bar. In consideration of the plaintiff’s promise to permit the building to be occupied and its power to be used for deféndant’s benefit, the latter promised not to set up against Brown’s claim any counterclaim ; and the plaintiff having performed, and the defendant having reaped the benefit of performance, it cannot now escape the liability which it assumed. The plaintiff was under no obligation to furnish power and space, so that defendant’s August magazine could be printed in time for delivery ; and the contract entered into July 12th, between the litigants, was a new and original undertaking on the part of both, and founded on a valuable consideration. The judgment should be affirmed, with costs.