author: Lawrence, J.

text:
    The Fifth Avenue Bank, Pl’ff, v. The Forty-second Street & Grand Street Ferry Railroad Co., Def’t.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    1. Corporations—Representations by officer of.
    A corporation is bound by the representations of one who is its secretary, treasurer and transfer agent, with power to countersign and issue stock, made in answer to inquiries as to the genuineness of particular stock.
    3. Same—Banks.
    An objection that the stock in question is not one which á state bank is authorized to take and become the owner of, can only be raised by the state authorities.
    Motion for a new trial upon exceptions, made by the defendant, after a trial at circuit, where a verdict was directed in favor of the plaintiff. *

      Edward G. James, for■ pl’ff; Freling H. Smith, for def’t.
   Lawrence, J.

A perusal of the evidence in this case satisfies ■us that the ruling of the justice, who tried the cause at circuit, was correct, and that the exceptions taken by the defendant .should be overruled, and judgment directed in the plaintiff’s favor upon the verdict.

The evidence shows that Allen was the secretary, treasurer and transfer agent of the defendant, and had power to countersign, seal and issue certificates of its capital stock, upon the surrender and cancellation of a prior certificate, upon the signing of the new certificate by its president, and his act in countersigning, sealing and issuing such certificate was a representation, not only within the apparent, but the actual scope of his powers.

In the case of the Bank of Batavia v. The N. Y., L. E. & W. R. R. Co., 106 N. Y., 195; 8 St. Rep., 209, the doctrine previously laid down in the cases of North River Bank v. Aymar, 3 Hill, 262; Griswold v. Haven, 25 N. Y., 595, and The New York & New Haven Railroad v. Schuyler, 33 N. Y., 30, was reaffirmed.

The court there declared that, “ It is a settled doctrine of the law of agency in this state, that where the principal has clothed his agent with power to do an act upon the existence of some •extrinsic fact, necessarily and peculiarly within the knowledge of the agent, and of the existence of which the act of executing the power is itself a representation, a third person dealing with such agent in entire good faith, pursuant to the apparent power, may rely upon the representation, and the principal is estopped from denying the truth to his prejudice. * • * * A discussion of that doctrine is no longer needed or .permissible in this court, since it has survived an inquiry of the most exhaustive character, .and an assault remarkable for its persistence and vigor.”

In this case the defendant held out Allen in the positions which he occupied to third parties, as one upon whose representations they could rely in respect to the genuineness of the particular certificates of shares of stock as to which the plaintiff made inquiries prior to making the loan to Hofele, and under the eases above referred to they are responsible for the injury which the plaintiff has thereby sustained.

The appellant cannot avail itself of the point that the stock in question is not one of the securities which a state bank is authorized to take and become the owner of under § 37 of the Revised Statutes, 1523, 8th ed. That question could only be raised by the state authorities. The defendant is estopped from raising it. National Bank of Xenia v. Stewart, 107 U. S., 676; Thompson v. St. Nicholas Nat. Bank, 113 N. Y., 325; 22 St. Rep., 929.

We discover no negligence on the part of the plaintiff which precludes it from recovering in this action, nor any' evidence upon which the defendant was entitled to go to the jury. None of the exceptions as to evidence appear to be well taken, and it-follows, therefore, that the motion for a new trial should be denied and judgment directed in the plaintiff’s favor, with costs- and disbursements.

Van Brunt, P. J., and O’Brien, J., concur.


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    Abraham Steinam et al., App’lts, v. Moses Strauss et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    1. Pleading—Amendment on trial.
    A complaint is never amended to conform to the proof for the purpose-of reversing a judgment, although such amendments are made in some instances for the purpose of sustaining one.
    2. Judgment—Recitals—Service.
    A recital in a judgment of the service of the summons upon a defendant is prima facie evidence of the fact that it had been served, although the affidavit of service is wanting.
    3. Same—Notice op appearance.
    An endorsement upon a notice of appearance of the time of its receipt' forms no part of the essence of the paper, and its effect is not invalidated by the fact that it bears date prior to the date of the summons.
    Appeal from judgment of the special term, dismissing the complaint upon the merits.

      A. Blumenstiel, for app’lts; N. Meyers, for resp’ts.
   Van Brunt, P. J.

On the 20th of November, 1889, a judgment was entered against the defendants Moses and Julius Strauss-in favor of the defendants composing the firm of Newman & Company. Execution was issued upon that judgment under which the property of the judgment debtors was levied upon. The plaintiffs being creditors of the same debtors, commenced an action, and obtained and'caused to be issued subsequently in November, 1889, attachments against the property of said Moses and Julius Strauss, which were levied upon the same property then in possession of the sheriff under the Newman judgment. Thereupon this action was brought by the plaintiffs as attaching creditors against the defendants Strauss and Newman & Company upon’ the ground that the judgment in favor of Newman & Co. was absolutely void on its face, and thabthe execution which was issued thereunder and under which the sheriff made the levy above mentioned was void, and that neither said judgment nor said execution was of any validity as against the plaintiffs’ attachment'; and prayed relief that the judgment and execution in favor of Newman & Go. be adjudged void and of no effect as against their attachment.

It appeared from the evidence that in the action brought by-Newman the summons was dated October 30, 1889, and the complaint verified on the same day, and that the cause of action was for a copartnership liability for goods sold and delivered to the defendants composing the firm'of Strauss & Son, and in the judgment-roll is a notice of appearance for both defendants directed to-the attorney for the plaintiff in that action, which notice of appearance is dated October 18, 1889, and bears an endorsement “ Received November 18, 1889.” In the judgment-roll there was no-affidavit of service upon any of the defendants, but the judgment-contained a recital that the summons and complaint were personally served on Moses Strauss, one of the defendants, on the 30th, of October, 1889. There .was evidence offered tending to show that the notice of appearance was actually served on the 18th of.' November, and that Moses Strauss, one of the defendants, was-' served with the summons on October 30, 1889, and that the defendant, Julius Strauss, was never personally served with the summons or complaint

It was claimed upon the trial that the Newman judgment was-entered before the time to answer had expired, and that it was. void upon its face, and also that upon the extraneous proof it was-invalid.

The learned court, holding that there were irregularities in the-manner in which the judgment was entered, made a decree in this, action allowing the same to be amended by annexing an affidavit of -service of the summons and complaint upon Moses Strauss, and authorizing an amendment of the docket of the judgment to the-effect that Julius Strauss was not served, and directing an amendment of the execution issued thereunder restricting the enforcement of the same to the personal property owned by the defendant Julius Strauss jointly with the defendant Moses Strauss as co-partners. From this judgment this appeal is taken.

Two questions are raised upon this appeal. The first is whether the judgment was void upon its face, and the second whether as matter of fact and from proof of extraneous circumstances it was-invalid.

The latter proposition it is not necessary to consider. No such issue was presented by the complaint and although evidence was taken in respect thereto and the learned judge seems to have passed upon the same, yet as it was not within the scope of the pleadings, and they never having been amended for the purpose of conforming the pleadings to the proof, this question was improperly considered by the court, and the result of the decision it is not necessary to review here.

If it may be said that the court should amend the pleadings to-conform the same to the proof, the proof having been taken without objection, it may be suggested in the first place that objectians appear as to some of the proof, and also that a complaint is never amended for the purpose of reversing a judgment, although such amendments are made in some instances for the purpose of sustaining a judgment.

This leaves only the other question, as to whether the judgment was void upon its face. This depends upon the point that it appears from the judgment roll that the notice of appearance was not served until November 18, 1889, and upon the fact- that there was no proof of service of the summons upon Moses Strauss •contained in the judgment roll. It was held in the case of Potter v. Merchants' Bank, 28 N. Y., 641-654, that a recital in the judgment of appearance or service of process is prima fucie evidence of the facts recited. Such rule was also recognized in Bosworth v. Vandewalker, 53 N. Y., 597, and in many cases subsequently.

The recital therefore in the judgment of the service of the summons upon Moses Strauss was prima facie evidence of the fact that it had been served,, although the affidavit of service was wanting.

The next point is in regard to the notice of appearance. The endorsement upon the notice of appearance forms no-part of the essence of the paper. It was dated on the 18th of October. The suit had been commenced a sufficient length of time in order to justify the entry of the judgment if process had been served ; ¡and although the notice of appearance bears date prior to the time of the date of the summons, that would not invalidate its effect, and it is to be presumed in the absence of evidence to the ■contrary that it was served upon the day it bears date, as every presumption is in favor of the regularity of a judgment. There is nothing therefore upon the face of the judgment roll which indicates a want of jurisdiction in the court in the entry of the same.

It may be questionable as to whether the court was justified in decreeing an amendment of the judgment roll in this action, but as no point is raised in that regard upon this appeal it is not discussed.

The judgment should therefore be affirmed, with costs.

XiAWRENCE, J., concurs.


text:
    The Panama Railroad Co., App’lt, v. Richard L. Johnson, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    1. Conversion—Embezzlement.
    Mere bookkeeping cannot constitute the crime of embezzlement, but there must be a misappropriation of the money and a withdrawal of the same from the use of the person to whom it belonged.
    2. Same—Premium on lease.
    Where an employee of a corporation sells a lease of its land to which he is entitled for a larger sum than he was to pay therefor, he is entitled to the premium, although the lease is made directly to the transferee, and his receipt and retention of such premium will not constitute embezzlement.
    3. Trial—Charge.
    It is not error for the court to read from the opinion of the general term on a former appeal that portion which laya down the law as applicable to. the case, where it contains nothing as to the result of the previous trial..
    4. Same.
    "While the court on the trial cannot he called upon as matter of right to instruct the jury as to the consequences which would follow from their verdict, it may in its discretion so instruct them.
    Appeal from judgment entered upon verdict rendered at circuit.

      T. S. Moore, for app’lt; K 0. Wilcox, for resp’t.
   Van Brunt, P. J.

This action was brought to recover .three-sums of money, one of $1,500, one of $700 and one of $3,000,, alleged to have been received by the defendant as cashier of the-plaintiff at the City of Colon upon the Isthmus of Panama, and embezzled and fraudulently misapplied by him. The defendant, admitted the receipt of the moneys, but denied the embezzlement, and alleged that he had paid over and accounted for all the funds, of the plaintiff which he had received as such cashier.

The principal ground of complaint which seems to be urged, upon this appeal is that the jury should have believed what the appellant’s counsel terms the extraordinary story told by the-defendant and his witnesses. But they having believed the-same, we do not see, even if we felt inclined, which we do not, that we could interfere with the result.

The evidence in the case, if true, showed that the defendant did not apply to his own purposes, or embezzle any portion of the $1,500 or the $700 claimed by the appellant, and that every cent of those moneys went into the treasury of the plaintiff, and. were received by it The only irregularity, if such under thr circumstances it could be called, was that it was not properly credited on the books. Mere bookkeeping cannot constitute the crime of embezzlement. There must be a misappropriation oí the money embezzled, and a withdrawal of the same from the use of the person to whom it belonged.

In the case at bar the railroad company received the $1,500- and the $700 which had been received by the defendant as its cashier, and which, pursuant to instructions, received from his. superior, and the agent of the plaintiff, he had not entered in the books.

No part of this money was either misappropriated or embezzled by the defendant, and as already stated the plaintiff received, into its treasury every cent thereof.

In respect to the item of $3,000 it appears that that arose out. of a transaction in reference to a lease, which the plaintiff through its agent agreed to give to the defendant. It appeared that the highest rent which the plaintiff thought it prudent to charge for any of its lots was the sum of $360; that it had agreed to lease a certain lot to the defendant, and the lease had been made out although not actually delivered; that thereupon the defendant sold this lease to another party who paid him $3,000 therefor, and this money was received by him and divided between himself and others who were interested in the lease. It is not pretended but that the defendant could take this lease. But it is claimed that because he got a premium upon it, he should account to the plaintiff for that premium.

The jury believed the evidence offered upon the part of the defendant in this respect, and found that the defendant was entitled to the lease from the company; that the defendant sold it at a premium; that although the lease was made out from the •company to the defendant’s transferee that he merely stepped into the rights of the defendant; and that the defendant was entitled to the premium which was paid for that transfer. It was a customary thing for the employees of the company to take leases .from the company and their right to do so seems to have been recognized by thé company.

Under these circumstances it would be a harsh rule to hold that this defendant was guilty of embezzlement simply because he received a premium upon the lease which he was entitled to receive from the plaintiffs.

Various objections are raised to the requests to charge made on behalf of the plaintiff; but upon examination of the same we do not find any error committed therein. They only followed out the principles laid down by the general term upon the previous decision of this case, viz.: that the burden lay upon the plaintiff not only to prove the receipt of the money, but the embezzlement or misappropriation thereof, before they could succeed in an action-of this character.

The claim that it was error upon the part of the court to read from the opinion of the general term upon the previous appeal seems to have no foundation whatever, because all that the court .seems to have read to the jury was that part of the opinion which laid down the law as applicable to the case, and nothing therein contained in any way stated as to what the result of the previous trial had been.

The claim that the court erred in the reference in its charge to the consequences which would follow in case a verdict were found for the. plaintiff, has no foundation.

As was intimated upon the argument, the rule is, that while the -court cannot on trial be called upon as matter of right to instruct the jury as to the consequences which would follow from their verdict, it may in its discretion so instruct them. Keller v. Strasburger, 90 N. Y., 379.

The judgment appealed from should be affirmed, with costs.

Lawrence, J., concurs.


author: O'Brien, J.

text:
    Luke S. Van Zandt, App’lt, v. Martin Furlong, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    Attorney—Power or—Deed.
    A power of attorney authorizing the attorney to grant, bargain, sell, exchange, demise and lease for such prices or rents and on such terms as to him may seem meet-, is a general and unrestricted one, and under it the attorney may deal with the property as his principal himself could have done, and where he conveys it by a deed expressing a consideration good between the principal and the attorney, and good to the extent of conveying title to the grantee, a subsequent purchaser cannot show that the conveyance was made without an actual consideraron being paid.

      • Appeal from a judgment dismissing complaint.

      Frank Schaffleer, for app’lt; Werner Bruns, for resp’t.
   O'Brien, J.

The action was brought by the plaintiff as a purchaser to recover a deposit on contract for real property and to establish a vendee’s lien for the amount paid on the ground of defect of title.

The property is twenty-six feet, eight inches, wide front and rear, and one hundred feet in depth on each side, upon which a building has been erected twenty-six feet, eight inches, in width. Defendant’s title is derived from one Henry Bornkamp. Twenty-five feet of the premises was conveyed by deed executed by Henry Bornkamp, and the title to the remainder of-the lot was= acquired by deed executed by Charles Bornkamp as. attorney in fact for Henry Bornkamp.

The power of attorney under which Charles Bornkamp acted ¡authorized him “ to grant, bargain, sell, exchange, demise and let for such prices or rents and on such terms as to the attorney ¡should seem meet.”

The question presented upon this appeal involved the construction of this power of attorney, appellant’s contention being that the plain meaning of the instrument, whatever form the exercise ■of the power might assume, is, that the attorney must in every case obtain an equivalent. The consideration expressed in the ■deed executed by the attorney is one dollar ” and “ good and valuable consideration.” Appellant sought to prove that the attorney’s conveyance was a gift and not a sale, and the excluding ■of evidence and exception taken thereto presents the question as .stated for our consideration as to the true construction to be placed upon the power of attorney.

The law is well settled that where the power is limited it cam be exercised only in the manner and in accordance with the terms ■of the limitation. For instance, a power to sell land for cash ■gives no implied authority to receive merchandise in payment. So, .as held in Scholle v. Scholle, 113 N. Y., 261; 23 St. Rep., 171, where an executrix under a power to sell attempted to .convey in compromise of a disputed debt, it was-held not a proper exer•cise of the power.

The error into which we think the appellant has fallen is in assuming that the power of attorney was a limited one.

An examination of its terms will show that it was general and •as broad as language could make it. It was not restricted in any way, and under its terms the attorney was given the same right and power to deal with the property of the principal as he himself •could have done. The excluding of evidence, therefore, which was offered to prove that nothing was paid for the conveyance, was not error, for the reason that it was entirely immaterial and irrelevant. It was under the power competent for the attorney to make a deed which, importing and expressing a .consideration good as between the principal and the attorney, and ■ good, to the extent of conveying a title to the grantee, was not open to inquiry by a stranger, such as the plaintiff in this ease was. We agree with the law contended for by appellant, that if the question as to-the consideration was material, the evidence was not objectionable under the rule excluding paroi evidence to contradict a written, instrument, because the plaintiff was not a party to the deed executed by the attorney in fact The evidence offered, however, being immaterial, it was properly excluded. -As the case presents no other questions urged upon this appeal, we think that the judgment should be affirmed, with costs and disbursements.

Van Brunt, P. J., concurs.


text:
    Luiz D. Govin, App’lt, v. Luciana G. De Miranda et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    Doweb—Action bob becoveby—Examination bebobe answeb.
    In an action brought for the recovery of dower, defendant, before answer, applied for an order to examine plaintiff, upon an affidavit in which the defense is stated to be a denial that plaintiff is the widow of the deceased, and which further alleged, on information and belief, that she was his mistress, but claimed that a marriage contract in writing had been entered into in presence of witnesses; that deceased and plaintiff were natives-of Cuba, and that it was a very common provision in marriage contracts-there that in consideration of a present settlement all future claim upon the-husband’s estate shall be released. Held, that defendant did not need the examination to frame his answer; that it was apparently wanted to find out whether he had any defense to plaintiff’s claims, and, therefore, should be denied.
    Appeal from an order denying a motion to vacate order for examination of plaintiff before answer.

      B. N. Cardozo, for app’lt; Edward K. Jones, for resp’ts.
   Van Brunt, P. J.

This action was brought for the recovery of dower in lands of which, her alleged husband died seized. Before answer the defendant applied for an order to examine the plaintiff upon an affidavit, in which the nature of the defense is stated to be a denial of the allegation that the plaintiff is the widow of the deceased, and therefore not entitled to dower. In this affidavit it is also alleged, upon information and belief, that the plaintiff was the mistress of the deceased, but-that she claimed that a marriage contract in writing, in the presence of witnesses,, was entered into between the deceased and herself, which was left with the deceased for safe-keeping; but that no such marriage contract was found among the papers of the deceased. It is also averred, on information and belief, that the deceased and the plaintiff are natives of Cuba, although residents of this state-for a part of the time, and that it is a very common provision in. marriage contracts there that in consideration of a present settlement all future claims upon the husband’s estate shall be released.

The court granted the order for the examination of the plaintiff concerning the matters stated in the affidavit and such other matters as may be relevant to the proposed issues in the action. Upon the return of this order a motion was made by the plaintiff to vacate the same, and an order was thereupon made limiting the same to an inquiry as to the nature and contents of the alleged contract of marriage referred to, and the facts and circumstances attending its execution, and from this order this appeal is taken.

It is clear that the defendant does not desire this examination to frame his answer because it is stated that the nature of the defense is a denial of the allegation of the plaintiff that she is the widow of the deceased, and certainly no examination is needed to frame an answer setting up this defense. But it is urged that' an -examination is needed to show the terms of the marriage contract to ascertain whether there was not a waiver therein of claims upon the husband’s estate, as is customary in Cuba. The manifest answer to this claim is, that this has nothing to do with the defense which is set forth in the affidavit, which is a denial of any marriage. Furthermore, it is apparent that the examination is wanted in respect to this contract not to enable the defendant to frame an answer, but to find out whether the defendant has any defense to the claim of the plaintiff. Examinations of this character are never allowed for such a purpose.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the order for examination vacated.

Lawrence, J., concurs!


text:
    In the Matter of Opening Lexington Avenue. In re The New York Elevated R. R. Co.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    1. Eminent domain—Opening streets—Waiver of objections.
    By acquiescence, going on with the proceedings and taking the chances of a satisfactory valuation of his property, a party waives an objection to the validity of the proceedings which he might have and should have made at the time of the appointment of the commissioners.
    3. Same—Oath of commissioners.
    It is no objection to the regularity of the proceeding that the commissioners did not take the oath in the precise language of the statute, so long as that taken by them embraced the substance thereof.
    Appeal from order denying motion to vacate and set aside the report of commissioners of estimate and assessment and the proceedings to open 0the above mentioned avenue.

      J. A. Deering, for app’lt; Carroll Berry, for resp’i
   Van Brunt, P. J.

It is claimed upon the part of the appellant that the proceedings to open Lexington avenue are irregular and void because they have not been in accordance with the" statute, and that, therefore, the appellant’s property has been taken without due process of law, and the motion to set aside the same should have been granted.

Various points are urged in support of this proposition, by ■which it is claimed that no jurisdiction whatever was acquired because of defects in the preliminary steps by which these proceedings were initiated. All these points, except such as will be hereafter noticed, existed at the time of the appointment of the commissioners, and no objection was made at the time of the appointment, but such appointment was acquiesced in, and it was-only after the appellant had learned what the judgment of the. commissioner would be, and the commissioners had made their report, and a motion to confirm the same was pending, that it sought to avail itself of the alleged defects in the preliminary steps by a motion to vacate and set the same aside.

There seems, however, to have been in January, 1889, a motion made by the appellant herein to vacate and set aside the order appointing the commissioners of estimate and assessment, and it is said that this motion was denied ; but as no order is contained in the record, so far as we have been able to find, it cannot be-considered in determining the questions raised upon this appeal.

We think that it is well settled that the right of the appellant to present these objections was waived by its appearance in the proceedings, by filing objections to the commissioners’ report of estimate and assessment, and afterwards introducing testimony,, etc., without interposing an objection of any kind.

This seems to have been held in the Matter of Cooper, 93 N. Y., 507, in which it is stated as the rule that it is well settled that a party may waive a statutory and even a constitutional provision made for his benefit and having once done so he cannot ask for its protection. In that case the court says: “ The appellant is in this position. He participated as an actor in procuring the order which he now seeks to set aside, and took his chances of a satisfactory valuation of the property for the. purposes contemplated by the act. To that end there was not only acquiescence on his-part, but intelligent and efficient dealing with the matter and consent to the order. By this consent he must be deemed to have' made his election and should be held to it.” It is true that in that case it was found as a fact that the appellant not only did not oppose the application, but joined in it by petition in writing under oath, and asking for the appointment of a particular1 person as one of the commissioners. But that in no way affects the principle as laid down by the court; that by acquiescence, going on with the proceedings and taking his chances of a satisfactory valuation of the property, a party waives the objection which he might have made and should have made at the time of the appointment of the commissioners.

It is urged upon the part of the appellant that the errors in the proceedings were never waived by it, and we are referred,, among other cases, to the Matter of Buffalo, 78 N. Y., 362, in which the- fact that a waiver may become operative and may be' enforced by the court is expressly recognized, but in that case it is only decided that such a waiver was not operative because' there were other parties interested who were not affected by it. In the Matter of the Department of Pub. Parks, 85 N. Y., 459, nothing was said which was antagonistic to that laid down in the Matter of Cooper, supra.

The claim that the commissioners were not disinterested or impartial persons cannot be sustained for the same reason. The appellant knew of the disqualifications, if they existed, which we do not admit,, and then went on and took, its chances of • the result,: and when it was disappointing because of the result of their determination, make this objection. The rule in respect to waiver of objections seems to be even stronger under those circumstances-than under those which exist in respect to the defects first above referred to.

The claim that the commissioners did not qualify by taking the oath required by § 968 of ponsolidation act, cannot be sustained. It is true that the oath was not taken in the precise language of the section, but the substance of the oath was embraced in that which the commissioners did take.

The objection that the commissioners did not give notice of a hearing to the appellant and other parties aggrieved, as required by § 986, is not well taken, in that it appears from the record that a longer publication was made by the commissioners than any section of the consolidation act required.

It is true that the phraseology of the notice to be given by § 986 is somewhat different from that referred to in § 984, but upon considering the powers of the commissioners it will be seen that only those persons who filed objections specifying their grievances have any standing before them.

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

O’Brien and Lawrence, JJ., concur.


text:
    Emma L. Stanley, Resp’t, v. The New York Elevated Railroad Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed Feburary 18, 1892.)

    1. Railroad—Elevated—Findings.
    In an action against an elevated railroad for an injunction and damages, • it is not error for the referee to refuse to find that the absence of certain improvements was prejudicial to the rental value of plaintiffs’ premises. Courts and referees should not be called upon to find all the incidental circumstances which may, perhaps, be relevant to the main findings.
    2. Same—Evidence.
    In such an action evidence as to what effect on the light in the store was produced by defendants’ structure, and that it was necessary to keep the gas burning all the time, is evidence of a fact and not a conclusion.
    3. Same.
    Plaintiff has a right to show that in and around his store the atmosphere was vitiated by the dirt which emanated from defendant’s structure.
    4. Same—Nuisance.
    A refusal by the referee to find that defendants’ structure was not a nuisance does not carry the converse of that proposition or show that he proceeded on the basis that it was a nuisance.
    Appeal from judgment entered upon report of referee.

      JJ. Barry, for app’lts; O. G. Bennett, for resp’t.
   Van Brunt, P. J.

This action was brought to restrain the defendants from maintaining and operating their railroad in front of the plaintiff’s premises on Third avenue. The judgment granted such injunction unless the defendants paid the plaintiff the sum of $1,200 in exchange for a conveyance of the easement appropriated by them and allowed the plaintiff to recover $478.61 rental damages.

The ground upon which a reversal is claimed by the -appellants is that the referee erred in refusing to take into consideration a fact material to the consideration of the issues in the action. The referee was asked to find that the building on"3 said lot was without any improvements, bath tubs, ranges, hot water and elevator, and that this had proved prejudicial to its rental value. This was refused by the referee and the defendants duly excepted to such ruling.

It is urged that as upon all the facts it is clear that while it is advantageous to a building to possess such improvements, the converse of the proposition is equally true, viz., that the lack of such improvements is prejudicial to the rental value of the premises and that the referee had failed to appreciate this fact and its importance in the case, as shown by his ruling upon defendants’ proposed finding.

But we do not think that the refusal to find leads to any such result. We do not think that the referee or the court is called upon to find every possible physical fact that may be established by the evidence. We think that the system of findings as it has now become enlarged, has grown to be a gross abuse and should be restrained by the appellate court as far as lies in its power. Courts and referees should be called upon to find only the pregnant facts constituting the cause of action or establishing a defense, and not all the incidental circumstances which may, perhaps, be relevant to the main findings. Ahy other rule would require the court or referee to find every particle of evidence which might in the slightest degree tend to sustain the conclusion.

We do not understand that parties are entitled to have every particle of evidence found in the findings of the court or referee, although these circumstances would • naturally be considered by the referee in determining the question as to the amount of damages sustained. And the fact that the referee refused to find them in the language requested is no evidence whatever that they were not considered by him.

It is also claimed that the referee erred in the admission of improper evidence, in allowing a witness to state what effect on the light in the store was produced by the structure of the elevated railroad; it being claimed that such a question called for a conclusion of the witness and not for facts.

We do not see the force of this objection. If the structure makes such premises darker, that is a fact which the witness may testify to, and not a conclusion. The answer of the witness was also objected to. He said: “ In regard to the light, we have to keep gas burning every day, all the time.” This is claimed to have been incompetent, and stating a conclusion. It seems to be a statement of the fact that they required artificial light to a greater degree than before, because it was darker.

Objection is also taken to the evidence in regard to what was observed in the store and on the sidewalk in front of the store in respect to cinders and dust, upon the ground that what was observed on the sidewalk was not within the issues in the action, and was incompetent, irrelevant and immaterial.

The plaintiff had a right to show that in and around the store the atmosphere was vitiated by the dirt which emanated from the defendants’ structure. This necessarily affected the value of the premises and was an interference with the air which the plaintiff was entitled to receive into her premises.

It is claimed that the referee in his report proceeded upon the erroneous theory that the acts of the defendants constituted a nuisance, and that it was upon this erroneous basis that the judgment was directed in favor of the plaintiff; and that this is evidenced by the fact that the referee refused to find, as requested, that neither the railroad structure nor the running of trains thereon have ever- been a private nuisance. We are not aware upon what theory the referee was called upon to find what this structure was not A refusal to find that it was not a nuisance, does not by any means carry the converse of the proposition.

If it was necessary, in order to entitle the plaintiff to recover, for her to establish that it was a nuisance, and all that the referee "did was to refuse to find that it was not a nuisance, the appellants would very quickly urge upon the court that there was no finding that it was a nuisance, and therefore there was no basis for a recovery.

We see no reason for interfering with the judgment, and it .should therefore be affirmed, with costs.

O’Brien and Lawrence, JJ., concur. .


author: O’Brien, J.

text:
    Somerville P. Tuck, Resp’t, v. Jerome F. Manning, Def’t. William W. Wilshire, Jr., Adm’r, App'lt, v. Jerome F. Manning, Def’t. Henry Amy, App’lt, v. Jerome F. Manning, Def’t.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    1. Attachment—Wrongful return.
    The court may require a sheriff who has wrongfully returned an attachment to the county clerk, as “merged in the judgment and execution," to take the same from the flies of the county clerk, together with the execution, cancel the returns on them, and proceed thereon according to law.
    2. Same—When sheriff not required to return.
    A sheriff is not required to return an attachment, excepting only where it has been vacated or annulled as provided by § 712 of the Code.
    Appeal from an order directing the payment to Tuck of moneys collected by the sheriff.

      Grosvenor 3. Hibbard, for resp’t Tuck; Edward Bartlett, for app’lt, Wilshire; Theodore F. H. Meyer, for app’lt Amy; W» Bourlce Cochran, for Grant, late sheriff.
   O’Brien, J.

This appeal grows out of certain attachments issued to Mr. Grant, as sheriff, in the year 1889, against the property of one- Manning. Each of the plaintiffs in the above entitled actions issued attachments, and each subsequently issued one or more executions, some against attached property, and others not against attached property.

The sheriff under the attachments levied on a claim supposed to be due Manning from Lawrence Giles & Co. of this city. This firm denied the indebtedness to Manning, and the sheriff returned one of the attachments and the execution in the case of Tuclc unsatisfied, so far as this claim is concerned. Tuck commenced, on January 14,1887, an action against Manning, and procured a warrant of attachment which was delivered to the sheriff, and which, on January 15, 1887, was served on Lawrence Giles & Co., and a levy made with the usual notice. The latter firm gave a certificate that they had no property belonging to Manning.

Tuck recovered judgment,' issued execution, and collected a part of'the judgment, and there is now due him two thousand two hundred and eighty-two dollars and eighty-five cents ($2,282.85). On September 10, 1888, the sheriff returned and filed the execution with the clerk of the city and county of Rew York, endorsed with the amount collected, and that there was no property of the defendants in the county out of which he could cause to be made' a levy for the residue, and at the same time returned and filed with the clerk the warrant of attachment, endorsed, “ Merged in judgment and execution issued July 10, 1888."

Wilshire and Amy, the plaintiffs in the actions above entitled Ros. 2 and 3, commenced actions against Manning, and procured attachments which were delivered to the sheriff, and by him served and-a levy made on Lawrence Giles & Company, who, in each case, made the same return as in the Tuck action. These plaintiffs each recovered judgment, issued execution and collected noth•ing. On August 8, 1890, in an action in this court brought by Lawrence Giles & Company against Tuck, Wilshire and Amy and Manning and the sheriff, it was adjudged that at the time of the service of a levy under these three warrants of attachment on Lawrence Giles & Company, they were indebted to the defendant Manning, and they were ordered to and did pay to Grant, as sheriff, the sum of two thousand one hundred and seventy-eight dollars and fifteen cents ($2,178.15), the amount of the debt, less certain costs and expenses.

On October 15, 1890, an ex parte order was made in the action of Tuck against Manning, that the sheriff take from the files of the county clerk the attachment and execution in said action, cancel the returns on them, and proceed thereon according to law. The sheriff, on notice to Tuck, Wilshire and Amy, moved to vacate this order, and upon such motion, the order from which this appeal is taken was made. Upon this state of facts, which were agreed upon, it is insisted by Amy and Wilshire that the court had no power to make the order appealed from, for the reason, among others, that at the time the money determined to be due Manning reached the hands of the sheriff he was destitute of process under which he could apply on Tuck’s judgment the money thus received ; the Tuck attachment having been returned; the Tuck second execution having been likewise returned ; and his third execution in the hands of the wrong officer. It is further claimed that at the time the ex parte order of October 15, 1890, was made, "the judgment had been obtained by Tuck on which one valid execution had been issued, and returned partly unsatisfied, from which appellants insist that the provisional remedy, the attachment, was thereby extinguished, and that it had no force or validity whatever, either at the time that the ex parte order was made or when the order now appealed from was made. This contention is predicated on the presumption that the attachment was then dead process, and, like any other process, when once dead was gone forever.

If the appellants were right in their views either that the attachment was merged in the judgment or that the sheriff properly returned with the endorsement thereon the attachment and execution in the Tuck actions, then there would be much force in their positions.

We are of opinion, however, that the authorities and a reading of the sections of the Code relating to the subject of attachments and executions will not sustain the proposition that the return of the attachment was merged in, discharged, superseded or in any way affected by the judgment, nor have we been referred to any provision of the Code which required the sheriff to return the attachments at all, excepting only where an attachment has been vacated or annulled. Section 712. Under the former Code, § 242, it was provided that when the attachment shall be fully executed and discharged, the sheriff shall return same, but the present Code, by § 712 referred to, provides that where a warrant of attachment has been vacated or annulled, the sheriff must forthwith file in the clerk’s office the attachment with the endorsement of his proceeding thereon. In the Tuck action, the attachment was neither vacated nor annulled, and, therefore, the return by the sheriff of the warrant of attachment to the county clerk and the endorsement thereon were unauthorized by law.

The sole question remaining then is, whether, in a case of this kind, where through inadvertence, mistake or error, the sheriff makes an unauthorized return, the rights of the attaching creditor are to be impaired or defeated, and the court remediless to correct the error. It seems to us that irrespective of any of the provisions of the Code of Civil Procedure, that, this court, in regard to amendments, has the inherent power, at any time, to make any necessary order to correct the pleadings or proceedings in an action when tile same is in furtherance Of justice. In Christal v. Kelly, 88 N. Y., 285-290, it was held that the power to amend process and pleadings is inherent in the court as part of its ordinary jurisdiction, and a reference to the cases will show that such power has been exercised. People v. Ames, 35 N. Y., 482; Barker v. Binninger, 14 id., 270-278; Burnham v. Brennan, 42 Supr. Ct., 49 to 76. Apart, however, from this, §§ 721 to 725 of the Code of Civil Procedure, and particularly § 725, expressly confer such power upon the court.

The appellants call our attention to the case of Pach v. Orr, 112 N. Y., 670; 20 St. Rep., 980, wherein the court of appeals modified an order appealed from, by striking out the words “and the lien of said attachment is restored." That was a case in which the attachment was granted and subsequently vacated ex piarte, and between that time and the time when the order restoring the attachment was granted certain confessions of judgment had been made and executions levied upon the same property upon which the sheriff had levied under the attachment, prior to its being vacated. It is insisted that this is authority, although no opinion was delivered by the court, for the position that no other relief could be granted to the plaintiff in the attachment suit than would be afforded by setting aside the order vacating the attachment. If, however, the appellant had pursued his investigation farther, he would have seen that in the case of Pach v. Gilbert, 124 N. Y., 612; 37 St. Rep., 218, where the question of priority under that very attachment involved in the former appeal was in question, that it was determined in favor of the attaching creditors and is a support for the position that the levy of the warrant of attachment on the debt of Lawrence Giles & Company in the Tuck suit was not affected by the subsequent act of the sheriff.

We are of opinion, therefore, that the court had the power to make the order appealed from, and such power being discretionary, we do not understand that it is claimed that the exercise o'f such discretion upon the fact here presented was improper. If necessary, however, to decide that point, we think that the court having the power to make the order, its discretion was wisely exercised. The sheriff received the three attachments, that of Tuck on January 14, 1887; that of Wilshire on February 12, 1887, and that of Amy on May 8, 1888. The return of the sheriff having been unauthorized, the court was then asked, in effect, to reinstate the original attachment and execution of Mr. Tuck, so that he would occupy the position that he would have been in had the attachment and execution remained in the sheriff’s hands continuously up to the time of the making of the application to the court. In the meantime neither Wilshire nor Amy did any act or acquired any rights predicated on the irregularity of the sheriff, nor were the rights of any other person intervening affected by the order appealed from.

We are of opinion, therefore, that the order should be affirmed, with costs.

Van Brunt, P. J,, and Lawrence, J., concur.


text:
    George White et al., App’lts, v. Jonas Heimerdinger et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    Fraud—Confession of judgment—Implied contract that loan shall REMAIN SUBJECT TO RISKS OF BUSINESS.
    A mother gave her son the following letter, ‘ ‘ To whom it may concern: That I have loaned to my son ten thousand dollars to he paid back at his option, and leave same to him at the risk of his business for five years.” It was shown to the commercial agencies and credit obtained on the strength of it. In less than a year thereafter the son became insolvent, confessed judgment to his mother for the amount of the loan, and his stock was sold on execution. Held, that such confession of judgment was a fraud on his creditors, and ihe latter was entitled to recover from the mother the amount of his claim, to be paid out of the proceeds of the execution sale.
    Appeal from judgment entered, upon the report of a referee, dismissing the complaint upon the merits with costs and disbursements.

      Henry L. Landon, for app’lts; Alexander Blumenstiel, for resp’ts.
   Lawrence, J.

The letters signed by Julia Heimerdinger, the mother of Jonas Heimerdinger, were undoubtedly given for the purpose of enabling Jonas to obtain credit in his business. The first letter, which is dated January, 1889, reads as follows : 0

“ January, 1889.
To whom it may concern: That I, Mrs. Julia Heimerdinger, have loaned to my son Jonas Heimerdinger, ten thousand dollars, to be paid back at his option, and leave same to him at the risk of his business.
“ Julia Heimerdinger.”

The second letter reads as follows:

“Hew York, January 25, 1889.
To whom it may concern: That I, Mrs. Julia Heimerdinger, have loaned my son, Jonas Heimerdinger, ten thousand dollars, to be paid back at his option, and leave same to him at the risk of his business for five years. Julia Heimerdinger.”

To these letters a statement of the assets and liabilities of Jonas were attached. The first letter was delivered to the mercantile agencies of Bradstreet and Dun. When the letter was shown to the representative of Dun’s agency he told Jonas Heimerdinger that the loan would have to be paid into the business for a specified time, or that he would have to make a special partnership and have his mother come in as a special partner, and that it would be necessary for Mrs. Heimerdinger, to make it of any available use, to have a specific term put in, and that it should be acknowledged. It was after this conversation with the representative of Dun’s agency that the letter dated January 25, 1889, was delivered to such representative by Jonas Heimerdinger. The evidence establishes that these letters and statements were submitted to the plaintiffs in this action, and that the plaintiffs relied upon all the said written or printed statements, and the said letters attached thereto, in making the sales to the defendant, and would not have made the same had it not been for such statements and letters, and the communication of the contents thereof to them by said mercantile agencies.

The referee before whom the cause was tried finds that from February 4, 1889, to September 28, 1889, plaintiffs sold to defendant Jonas Heimerdinger merchandise of the value and the amount of $1,249.13, upon which, after deducting cash paid and merchandise returned, there was a balance due and unpaid from the defendant Jonas Heimerdinger to the plaintiffs before the month of December, 1889, of $445.62. He also finds that in the said month of December, 1889, the defendant Jonas Heimerdinger became insolvent and owed the sum of nearly $6,000 to his creditors, and failed in business, which said sum still remains due and unpaid by him to his creditors; that on the 20th of December, 1889, he confessed judgment in favor of his mother for the sum of $10,016.62, which judgment was duly entered in the office of the clerk of the city and county of New York, was duly docketed and execution was duly issued thereon to the sheriff of the county of New York, and thereupon the said sheriff collected and paid over to the defendant, Julia Heimerdinger, out of the property of Jonas Heimerdinger, sold by him under such execution, the sum of $6,531.56.

If is also found by the referee that on the 20th day of December, 1889, when Jonas confessed judgment to his mother, he knew that he was insolvent and indebted to creditors in the sum of nearly $6,000. It is further found by him that the defendant, Julia Heimerdinger, subscribed the letters above referred to with the intent and purpose that they should be shown to the mercantile agencies of the city of New York. He also finds that the confession of judgment was not made with any intent on the part of the defendant, Jonas Heimerdinger, to give unlawful preferences to the defendant, Julia Heimerdinger, over his other creditors, nor for the purpose of hindering, delaying, cheating or defrauding the said plaintiffs or any other creditors, and that said confession was made for the purpose only of paying an honest and bona fide debt.

It is difficult to see how it can be claimed, on this state of facts, that it was within the power of Jonas Heimerdinger, after the letters and statements above referred to had been communicated to the plaintiffs, to make a confession of judgment in favor of his mother which would swallow up all his available assets and leave nothing for his other creditors. It is perfectly clear that it was the intention of Mrs. Heimerdinger to lead the plaintiffs and all others who might see and rely upon her letters to believe that the $10,000 which she had lent to her son was to be at the risk of the business, and subject to all its hazards and vicissitudes, otherwise it could be a matter of no importance to the creditors of Jonas whether his mother had or not loaned him that sum. If that sum was liable to be withdrawn at any moment and repaid by him, the security of the creditors was thereby lessened and reduced. The change which was made in the phraseology of the first and second letters, so as to state a specific time for which the loan was to be continued, was made at the instigation of Dun’s agency and for the express purpose of making his financial condition appear sounder to the creditors.

We do not deny the doctrine which is laid down in the cases referred to by the learned referee to the effect that a debtor may at any time waive án unexpired credit upon any demand against him, and allow his creditor to take judgment immediately for the sum due to him.

Those were cases, however, as we understand them, in which the rights of third parties did not intervene. Here it may well be held, as claimed by the counsel for the appellants, that there was a ■contractual relation between the defendant Julia Heimerdinger .and the plaintiffs and the other creditors of Jonas, to whom the letters might be shown, m and by which Julia Heimerdinger agreed that in consideration of plaintiffs extending credit to the •defendant Jonas, the $10,000 loan should be allowed to remain in the business subject to all the exigencies thereof for the period •of five years. We think, therefore, that the plaintiffs have established a cause of action against the defendant J ulia Heimerdinger, •and that they are entitled to a judgment against her, that the •amount of their judgment against the defendant Jonas Heimer•dinger be paid out of the proceeds of the sale of the latter’s goods.

For these reasons we are of opinion that the judgment below ;should be reversed and a new trial ordered, with costs to appell.ant to abide the event.

Van Brunt, P. J., and O’Brien, J., concur.


text:
    Thomas C. Oakley, App’lt, v. Charles A. Briggs et al., Def’ts. Henry C. Bauer, Purchaser, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    1. Judicial sale—Title—Defects.
    While a purchaser at a judicial sale is entitled, to a marketable title, free from reasonable doubt, the defect in a title sought to be rejected must be substantial and not rest on a mere possibility or contingency.
    .2. Same.
    The mere fact that the map of a turnpike company included a portion of the premises in question does not furnish a valid reason for relieving a purchaser, where it does not appear who made the map or that it was of .■an official character, and it appears that the road was discontinued in 1810; that the attorney of the company disclaims any interest of the company in .said road; that the premises are enclosed and have been partitioned without reference to such road, and the city maps fail to show the existence of the road.
    Appeal from an order of the special term, denying a motion to compel Henry 0. Bauer, the purchaser of property at a partition sale, to complete his purchase.

      Sol. Kohn, for app’lt; Wm. H. B. Jay, for .purchaser, resp’t.
   Lawrence, J.

While it is well settled that a purchaser at a judicial sale is entitled to a marketable title and one that is free from reasonable doubt, it is also the rule that the defect in the title ■sought tó be rejected must be substantial, and not rest on a mere possibility or contingency. Cambrelleng v. Purton, 125 N. Y., 610; 36 St. Rep., 190. The description of the property sold in this case, it is conceded by the statement of facts agreed upon by the parties, embraces about twenty feet of the old road, which the early deeds, forming part of the chain of title, refer to as the road or highway leading from Brooklyn Ferry to Jamaica, and by which the tract of land, of which the premises sold formed part, is bounded, easterly and northerly. It is also conceded that there is a house upon the front part of the premises sold, and that the yard or rear portion, embracing the road, is enclosed with a fence, and that there is no trace or vestige of a road in the block in which the premises are located, nor in the-"blocks in the vicinity thereof, but that said blocks appear upon the official maps of the city of Brooklyn as if such road did not exist, and the property is assessed by the public assessors, irrespective of any road. The objection of the purchaser rests upon the fact that his attorney, while searching the title to the premises, found on file in the register’s office a map of the Brooklyn & Jamaica Turnpike Company, and that on said map a portion of the premises described herein appeared to be and formed a part of the said road.

It does not appear by whom the map was made or filed, nor does it appear that it was authentic or had any official character. The affidavit in support of the motion shows that an' old road is-shown upon maps of the city of Brooklyn, but that according to-the best information that the affiant has been able to obtain, the road was discontinued prior to the year 1810, and that quit-claim-deeds have been obtained from the city oE Brooklyn to the heirs of David R. Briggs, being all the parties to the action of partition, and that the same have been tendered to the purchaser, who has-refused to complete and take title solely on the ground that the' rear part of the premises is a part of the old road leading from Brooklyn Ferry to Jamaica, and that the deceased never had title thereto.

It further appears that the attorney for the Brooklyn & Jamaica Turnpike Company disclaimed any interest on the part of said company to the said road, but refused either to put such disclaimer in writing or to procure a quit-claim from said company, and that upon said attorney consulting maps of the city of Brooklyn, in the presence of the moving parties’ attorney, it was-found that the alleged road was not part of the old Brooklyn & Jamaica Turnpike Company’s road, and that said road did not abut upon the premises in question, or form part thereof. Under these circumstances we are of the opinion that the objection of the purchaser to the title cannot be maintained.

Assuming that the land abutted upon the old road, the title-to the center of the road remained in the owners of the adjoining land, subject to the easement, and when the road ceased to boused the right to the. exclusive possession of the land vested in the abutting owners.

Inasmuch as in 1859 the tract including the land and road in question, was conveyed to William Stewart, whose executors: divided the same into lots and the conveyances by them made no mention of any road, but bounded the lots by street lines; and inasmuch as there is no pretense that the property has not been held by Stewart and his grantees exclusively and adversely from that time, we are of the opinion that the objection to the title of the heirs of Briggs is too shadowy and contingent-to justify the purchaser in refusing to complete his purchase. Post v. Bernheimer, 31 Hun, 247; Ottinger v. Strasburger, 33 id., 469; Cambrelleng v. Purton, 125 N. Y., 610, 611; 36 St. Rep., 190.

The order below should be reversed, and the motion to compel the purchaser to complete should be granted, with costs and disbursements to the appellant.

Van Brunt, P. J., concurs.


author: Patterson, J. Van Brunt, P. J. O’Brien, J.

text:
    Homer D. Mix, Resp’t, v. Orrin G. Staples, Appl’t.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    1. Evidence—Expert cannot read prom his own works.
    An expert witness cannot be allowed to read from bis own published works to support his own testimony. (O’Brien, J., dissents.)
    3. Warranty—Evidence.
    In gn action for breach of warranty in the sale of a horse that she was as sound as the day she was foaled except a blemish on one knee, the only-evidence as to damages was given by plaintiff, who knew little about horses, and three witnesses, one of whom said he could not tell its value without driving it and that he did not drive it; another that he did not examine it closely, and the third was a stock broker who had bought and sold horses. Held, that they were not competent on that question, and that the evidence of damage was insufficient.
    Appeal from a judgment for $1,433.50 entered on the verdict of a jury in an action to recover damages for breach of warranty in the sale of a trotting mare.

      Delos McCurdy, for app’lt; Edward Browne, for resp’t.
   Patterson, J.

This is an action for the breach of warranty of -a horse, the allegations of the complaint being that at the time of the sale a warranty was given by the defendant that such horse was sound and true and but eight years old, and the breach assigned being that -it was unsound and diseased and utterly worthless, and instead of being eight years old was ten years of ■age. The defense was in effect a general denial. On the trial the warranty in writing was put in evidence and is in these words: “H. D. Mix, bought of O. Gf. Staples the mare Ninette, which is sound and kind in every way with the exception of a slight blemish on one knee. She is sound as the day she was foaled and has no tricks or bad habits I know of. Price, $2,000.”

Testimony was introduced at the trial to show the condition of the animal a few days after the sale, and a veterinary surgeon (Liautard) was called to testify as to the results of his examination of what we will assume to have been the horse in question. He testified that the animal had navicular disease, which is an affection of one of the bones of the foot, that it is an incurable disease, and that it had existed for weeks or months prior to the 8th day of May when he made the examination. He was then, asked whether he had not written a treatise on that subject and he replied that he had; that he had made a special report of the diseases of horses, which was published by the Bureau of Animal Industry in the Department of Agriculture of the United States Government, and that book contained a letter of his on navicular disease, and he was referred to page 893 of that book and was-allowed to read a long extract from it. His doing so was objected to and an exception duly taken.

We think it was error to allow this witness to read from his-own published works to support his own testimony, just as it would have been to allow him to read from any other author, even if approved and accepted authority. What he had written abstractly could not be made testimony. He was called to swear to-facts and not to the correctness of what he may have written generally years before on a particular topic. In testifying as to this disease the witness was speaking as an expert. He would not. have been allowed to testify to statements made in books of other-authors, Matter of Mason, 60 Hun, 57; 38 St. Rep., 533, and cases there cited, and should not have been allowed to read from his-own publications for the same reason, for it does not appear even that he testified that the extracts he read from his own letter were-true, and “the little points of difference” as to symptoms the witness admitted “may be of importance.”

But even if this objection may be. overcome, the proof was entirely insufficient on the measure of damages, and there was no-fair basis laid in the testimony by which the jury could ascertain, what sum should be awarded. Irrespective of the plaintiff himself, three witnesses were called on that subject. One of them, Ferguson, did not know anything about the horse, and said he could not tell its value without driving it, and he did not drive it, and that he could not tell its value as a sound horse, but he was allowed, under exception, to say that she was worth $500. Another witness was Wheeler, who did not trade in horses, but had. bought and sold them and had some knowledge of the asserted pedigree of this animal. He swore that $1,000 would have been “a good big price ” for her if she were sound, and that she was-worth, as he saw her, between $300 and $500, but he did not examine her closely. This witness clearly was not competent to-testify as to her condition or value. Another witness, Mr. Lewis, was a stockbroker; he had bought and sold horses, and saw this-mare, and said that she was lame, and located the lameness in the left fore leg, and then went on to testify, under objection, that if she were sound she would have been worth from $2,500 to $3,000,. but being unsound she was only worth $300.

All these witnesses were allowed to testify on the assumption that the horse was absolutely sound and without regard to the fact, that by the very terms of the warranty she was not sound, unless it be that she was as sound as the day she was foaled except a blemish on one knee. They do not testify as to what that blemish was or how it affected her value from the day she was foaled or at any time, and they did not have sufficient knowledge to enable them to speak as to her real value. The only other-testimony as to value was that of the plaintiff himself. He swore distinctly that he knew very little about horses and was not in any way shown to be competent to speak of the value of this animal, and yet he was allowed to say that if she were sound she-would have been worth $2,000. The evidence was altogether insufficient to support the verdict, and the judgment should be reversed and a new trial ordered, with costs to abide the event

Van Brunt, P. J.

Dr. Liautard’s effusion was entirely inadmissible and there was no proof of damage. I therefore concur.

O’Brien, J.

I think a distinction is to be made between reading by an expert from a work of his own and a work by some other author. In one case he is expressing his opinion which has been reduced to writing or printed; in the other he is supporting his views by what others may have written on the subject, which latter is clearly incompetent and improper.

Upon the incompetent evidence as to value the judgment' should be reversed. _


text:
    Charles Schendel et al., Resp’ts, v. Samuel Silver et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    1. Trade-mark. •
    A trade-mark may be acquired in the words “ nickel-in ” to designate a. brand of cigars, as such combination is not in any manner descriptive of the article, does not denote its grade or quality, and is purely arbitrary and fanciful.
    2. Same —Infringement.
    The owner of such trade-ihark is entitled to be protected against the use* of the words “ Nickel-saved ” by another manufacturer where it appears that his devices have also been simulated and the public has been deceived.
    Appeal from judgment entered after trial at special term.

      Marshall P. Stafford, for app’lts; Benedict S. Wise, for resp’ts.
   Van Brunt, P. J.

This action was brought to restrain an infringement of a trade-mark. The respondents were manufacturers of cigars, doing business in the city of New York. In July,. 1889, they adopted as the designation of the brand of cigars which, they manufactured the words, “ Nickel-In.” This designation, appeared prominently in their places of business, and was affixed to their packages and impressed upon their boxes.

In the year 1890, one of the defendants, in conjunction with others, opened a cigar store in Brooklyn, which he called the- Nickel-saved ” cigar store. In this store the defendant copied the various devices of the plaintiff to attract trade, and also attached the words “ Nickel-saved ” as a trade-mark to his cigars. . The plaintiffs gave evidence upon the trial showing that persons had been deceived in purchasing the cigars manufactured by the defendant, supposing them to be those manufactured by the plaintiffs.

There can be no contention whatever that the adoption of the trade-mark, “ Nickel-saved ” bv the defendant was not in the hope that he might deceive the public into purchasing his cigars, supposing them to be those manufactured by the plaintiffs, and which had acquired a reputation. And the only question which it is necessary to discuss upon this appeal is as to whether the plaintiffs. can acquire a trade-mark in the combination of the words “ Nickel-In,” in connection with the manufacture and sale of cigars.

In the decision in the case of Selchow v. Baker, 93 N. Y., 59, it seems to us that the right to acquire such a trade-mark is clearly recognized. In that case it was held that the manufacturer who has invented a new name, consisting either of a new word, or of a word or words in common use, which he has applied for the first time to his own manufactures, or to articles manufactured for him, to distinguish it from those manufactured and sold by others, if the name be not generic or descriptive of the article and not used to denote grade or quality, but is arbitrary and fanciful, 'is entitled to be protected in its use, even though it has become so generally known as to be adopted by the public as -descriptive of the article.

In that case the plaintiffs had adapted the name of “ sliced animals ” to certain toys which they had manufactured and which represented various objects in detached pieces to be put together by the child using the toys, thereby forming the complete object. .And it was held that this was an arbitrary use of a word or words ■in common use, not at all generic or descriptive of the article, and which did not denote its grade or quality; and that, therefore, the plaintiffs could acquire a trademark therein. So in the case at bar the plaintiffs invented a combination of words in common use for the purpose of representing articles of their manufacture. These words were not in any manner descriptive of the article; neither did they denote their grade or quality, but were arbitrary and fanciful, and originated with the plaintiffs. This would seem clearly to entitle them to the protection given to trade-marks in the use of the name in connection with the manufacture of articles sold by them.

It is true that the name used by the defendants consisted of the words “Nickel-Saved.” But it is apparent that this combination was resorted to for the purpose of possibly escaping the. result of an infringement of a trade-mark, but being so near a resemblance "thereto as to deceive the public..

We think, therefore, that the plaintiff was entitled to be prdtected from this fraudulent invasion of the rights which he had acquired, and that the judgment appealed from should be affirmed, with costs.

O’Brien, J., concurs in result


text:
    Robert J. Dean et al., Resp’ts, v. Marshall S. Driggs, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    Warehousemen—False receipt.
    A -warehouseman is liable to a bona fide endorsee of a warehouse receipt issued by him for a false statement therein in relation to the contents of the packages for which it was given, irrespective of his knowledge that the article was not of that description.

      (Dean v. Driggs, 27 St. Rep., 314, followed.)

      Appeal from a judgment entered on third trial before Mr-Justice Lawrence and a jury, rendered in favor of the plaintiff.
    The action was brought to recover damages sustained by the defendant’s act in issuing two negotiable warehouse receipts, certifying he had on storage 2,463 barrels of Portland cement, to be delivered on return of said receipts, which receipts plaintiffs purchased, or became hona fide owners of, relying upon the statement contained in said receipts, that the goods described in the receipts were Portland cement, while in truth and in fact they were not. Defendant, upon demand, refused to deliver-2,463 barrels Portland cement, but offered to deliver 2,463-barrels containing some other commodity.

      J. Berry, for app’lt; Hatch & Warren, for resp’ts.
   Van Brunt, P. J.

Although I am of the opinion that a-transferee of a warehouse receipt gets no greater or other rights-thereunder than the person to whom it was originally issued, which seems to be clearly intimated in the case of W hitlock v. Hay, 58 N. Y., 487, yet, in view of the decision upon the previous-appeal in this case, the judgment and order appealed from must-be affirmed, with costs.

I fail to find anything in the act relating to warehousemen,, wharfingers and others which make a warehouse receipt negotiable in any sense of the term. The language of the statute is that such receipts may be transferred by endorsement thereof, and any person to whom the same may be transferred shall be deemed and taken to be the owner of the goods, wares and merchandise therein specified so far as to give validity to any pledge, lien or transfer made or created by such person or persons. In other-words, the statute simply provides that the title to the property therein mentioned may be transferred by the endorsement and delivery of the warehouse receipt, which is far from making such a receipt negotiable in the sense in which the word is used when-applied to commercial paper. Therefore, it would seem, as intimated in the case of Whitlock v. Hay, supra, that all that the transferee of the warehouse receipt gets, are the rights conferred upon the original holder of such receipt, and if such original holder, by-reason of his own fraud, has no cause of action, it seems to follow that his transferee cannot maintain such action.

The judgment should be affirmed, with costs.

O’Brien, J., concurs in the result


author: Vann, J.

text:
    Theodore Haebler et al., App’lts, v. Elijah Myers et al., Resp’ts.

      (Court of Appeals, Second Division,

      Filed April 19, 1892.)

    Attachment—Reversal oe judgment setting aside—Restitution.
    Plaintiff’s attachment was set aside and the moneys in the sheriff’s handy paid to defendants as subsequent attaching creditors. On appeal the-order vacating the attachment was reversed. Held, that a direct action-, would lie by plaintiffs against defendants for money had and received.

      Appeal from a judgment of the general term of the supreme ■court in the first judicial department, affirming a judgment entered upon the decision of the court at special term, sustaining a demurrer to the complaint.
    This was an action for money had and received.
    In April, 1888, the sheriff of the city and county of New York received the sum of $900 “by reason of” the levy of an attachment which the plaintiffs had caused to be issued in an action brought by them against one Bernharth and others. On October -50, the defendants, “ as subsequent lienors,” procured an order restraining the sheriff from paying over to the plaintiffs the money so received by him, and on November 22 they procured -another 'order, granted at special term on notice, vacating said attachment. “After said attachment was so vacated, and in consequence thereof and not otherwise, said sheriff paid over to the -defendants, as subsequent lienors, said $900 which he had received under the attachment issued to him, as aforesaid, by the plaintiffs.” ■On the 18th of April, 1889, the order vacating the attachment was affirmed by the general term, but on October 31, 1889, the court of appeals reversed the orders made by the general and .special terms and denied the motion to vacate the attachment.
    November 12, 1888, the plaintiffs recovered judgment in the action brought by them against said Bernharth and others for the sum of $1,257.91, but the execution issued thereon to said sheriff was returned wholly unsatisfied and the judgment is still unpaid. The plaintiffs demanded restitution from the defendants, which was refused, and thereupon they brought this action, and alter alleging the foregoing facts in substance, asked that the defendants be ordered and decreed to make restitution to the plaintiffs, of the said sum of $900, with interest thereon from the 22nd day of November, 1888, besides costs of this action!
    The defendants demurred to the complaint upon the ground "that it did not state facts sufficient to constitute a cause of action. The special term, in sustaining the demurrer, held that the defendants had received nothing from the plaintiffs which they were bound to restore to them, as the money in question belonged to Bernharth and others until it was devoted to the payment of the ■defendants’ execution. The general term affirmed the judgment upon the same ground, but also suggested that it was the duty of the plaintiffs to obtain a stay of proceedings if they wished to protect their lien by a successful appeal.

      Marshall P. Stafford, for app’lts; Michael H. Cardozo, for resp'ts.

       Reversing 33 St. Rep., 990.

   Vann, J.

Restitution was a remedy well known to the common "law. Its object was to restore to an appellant the specific thing, •or its equivalent, of which he had been deprived by the enforcement of the judgment against him during the pendency of his -appeal. It was not created by statute, but was exercised by the ■appellate tribunal as incidental to its power to correct errors, and "hence the court not only reversed the erroneous judgment, but restored to the aggrieved party that which he had lost in conse"quence thereof. It was usually a part of the judgment of reversai which directed “ that the defendant be restored to all things which he has lost on occasion of the judgment aforesaid.”

A writ of restitution was thereupon issued, provided the amount that the appellant had lost or paid under compulsion appeared of record, as by the return of an execution satisfied. Otherwise process in the nature of an ordér to show cause was first issued, known as a scire facias quare restitutionem habere non débet. Tomlin’s Law Diet., title Restitution; 2 Lill. Abr., 472; Rolle Abr., 778; Westerne v. Creswick, 4 Mod., 161; Wilkinson's case, Cro. Eliz., 465; Goodyere v. Ince. Cro. Jac., 246; Manning's case, 4 Coke, 94; 2 Tidds Pr., 1033; 1 Burrill Pr., 292.

In this state the practice is now regulated by statute, and .almost every conceivable case is provided for. Code Civ. Pro., :§§ 445, 1005, 1216, 1292, 1323, 2142, 2263 and 3058. Section 1323 seems especially adapted to -the facts set forth in the complaint, as it provides that “ when a final judgment or order is reversed or modified upon appeal,.the appellate court * * * may make or compel .restitution of property or of a right lost by means of the erroneous judgment or order.” This is a part •of § 330 of the Code of Procedure, under which it was held that the power conferred was cumulative, and did not take away the common law rights of a successful appellant. Lott v. Swezey, 29 Barb., 87, 88. There were earlier, though less complete statutes upon the subject. Laws 1832, chap. 128, § 1; 2 R. S., •509, §13; 1 R. L., 96, §§ 2 and 5.

The statutory remedy is exercised by the entry of a judgment or order in the action in which the erroneous judgment or order was rendered or made. We think that the remedies provided by statute are not exclusive, and that .they were enacted, in ■recognition of the right of restitution as it existed at common law, to furnish additional means of enforcing that right.

We have before us an effort to procure restitution by an independent action in the nature of indebitatus assumpsit, based upon the theory that the law will imply a promise from the conduct of -the defendants and the circumstances of the case. It has been repeatedly held that such an action will lie to recover back money paid on a judgment pending an appeal, which resulted in a reversal. The subject was carefully examined in Clark v. Pinney, 6 Cow., 298, where it was held that the court would not compel the party to resort to the antiquated remedy of scire facias, but would permit a recovery by a direct action as for money had and received. In delivering the opinion, Chief Justice Savage said: “The general proposition is that this action lies in all cases where the defendant has in his hands money which -ex wquo et bona belongs to the plaintiff. When money is collected upon an erroneous judgment, which, subsequent to the payment -of the money, is reversed, the legal conclusion is irresistible that the money belongs to the person from whom it was collected.”

This principle was recognized by the supreme court of the United States in Bank of United States v. Bank of Washington, 6 Peters, 8, where it was declared that “ on the reversal of a judgment the law raises an obligation in the party to the record, who has received the benefit of the erroneous judgment, to make restitution to the other party for what he has lost,” and that he might proceed by action, scire facias, or order. The authorities uniformly support this position and out of many that might be cited the following are sufficient to illustrate the subject. Sturges v. Allis, 10 Wend., 355; Maghee v. Kellogg, 24 id., 32; Norton v. Coons, 3 Den., 130; Langley v. Warner, 1 Sand., 209; Lott v. Swezey, supra; Kidd v. Curry, 29 Hun, 215; Wrightv. Nostrand, 100 N. Y., 616; Travellers' Ins. Co. v. Heath, 95 Penn., 333.

The right of the plaintiffs to recover could be questioned if the money had absolutely belonged to them when it was. paid by the sheriff to the defendants, but inasmuch as they only had a lien upon it and had not then completed their title, it is claimed that no action will lie for their relief. In taking this, position the defendants lose sight of the fact that a lien is property in the broad sense of that word, and although it has no physical existence it exists by operation of law so effectively as to have-pecuniary value and to be capable of being bought and sold. They also ignore the proceedings that were in progress to convert the lien into a title to the fund. This makes the successful prosecution of the appeal a barren victory and enables the party in. fault to retain the fruits of his own wrong.

While the erroneous order was a protection to the sheriff who-acted upon it while it was in force, it is no protection to the defendants, because it was subsequently reversed on appeal, and became, as to them, the same as if it had never been made. When they accepted the money that was paid over in conseqrtenceof the order that they had procured, they knew that if the order should be reversed and their motion denied, they would no longer be entitled to it, and could not in fairness retain it. They also knew that if, in the meantime, the plaintiffs perfected judgment, and issued execution, their-right to the money, if not paid over, would be complete upon a reversal of the order. As they acted with knowledge of all the facts, it would be inequitable for them to retain money received under such circumstances, and we see-no reason why the law should not infer a promise of restitution the same as if the money had been collected under an execution.

In either case the inference rests upon the fact that money was-received by those who knew at the time that it might ultimately be decided that they were not entitled to it. But to whom did the implied promise run? Obviously to those who would have-been entitled to the money upon the reversal of the order, provided it had not been paid to the defendants. It was so held iu Caperton v. McCorkle, 5 Grat., 177, which is precisely in point.. The law implies the promise for the benefit of the injured party,, and if the situation were the same as it was when the money was paid, repayment to the sheriff would be required, because he would be entitled to possession of the fund under the restored attachment. Pach v. Gilbert, 124 N. Y. 612; 37 St. Rep., 218. But the situation is changed, as the plaintiffs have become entitled to the money by virtue of their judgment and execution. They,. .and they alone, therefore, can avail themselves of the implied promise, which is plastic in character and for the benefit of whom it may poncern. The law implies a promise because in equity and good conscience the defendants ought to have promised, and it will not permit them to say that they did not. It would be an anomaly to hold that the law will imply a promise in favor of one having 'title, but not in favor of one holding the first lien, when through the action of agencies known by the parties to be in operation and in the ordinary course of legal procedure the lien would have ripened into a title but for the erroneous order. The defendants procured the order and acted upon it and thereby obtained money that did not belong to them, and under such cir-cumstances the law presumes that they engaged to do what reason and justice require them to do. They are, therefore, under an obligation to restore the money. ■ In enforcing that obligation the courts will not be particular to require literal restitution to the sheriff, or late sheriff, but as the plaintiffs have now become entitled to the fund, will permit them to recover it in a direct action for money had and received. By imputation of law the defendants received the money for the benefit of the party ultimately ¡entitled to it, and by refusing to pay it over to that party, upon a proper demand after his rights had matured, became liable to an action for the recovery thereof. Mason v.Prendergast, 120 N. Y., 536; 31 St. Rep., 497.

The suggestion that the plaintiffs should have procured a stay of proceedings is not entitled to much weight, because a stay by order is not a matter of right, while a stay by undertaking upon appealing from a judgment is a matter of right, yet the omission to give an undertaking does not prevent a recovery upon a reversal of the judgment.

We think that the judgment rendered by the courts below should be reversed and the demurrer overruled, with costs in all •courts, with leave to the defendants to answer in twenty days upon payment of costs.

All concur.