text:
    DAVID K. McCARTHY, Respondent, v. REBA W. McCARTHY, Appellant.

      Provisional remedy — what is not, under Code of Oiml Proeedm'e, §772.
    An order authorizing a substituted or constructive service of a summons is not an order granting a provisional remedy, within the meaning of section 772 of the Code of Civil Procedure.
    Appeal from an order denying a motion, made without notice, to vacate an order, made by a justice of the Supreme Court out of court, for a substituted service of the summons in this action. The order recites that the motion was denied upon the ground that the judge had not jurisdiction to hear it.

      A. G. Da/ois, for the appellant.

      Hiscocle, Gifford & DoTiewy, for the respondent.
   Smith, J.:

The only question in this case is whether an order authorizing a substituted or constructive service of a summons is an order which grants a provisional remedy within the meaning of section 772 of the Code of Civil Procedure. That section, after directing generally in what locality, and by what judge, an order may be made out of court, without notice, concludes in these words: “ When such an order grants a provisional remedy, it can be vacated only in the mode specially prescribed by law; in any other case it may be vacated or modified, without notice, by the judge who made it, or upon notice by him or by the court.” The respondent’s counsel contends that an order for substituted service is an order granting a provisional remedy, and that the mode specially prescribed for vacating or modifying such an order is to be found in section 669, which provides that a motion, upon notice, in the Supreme Court must (with some exceptions which do not affect the present question) be made within the judicial district in which the action is triable, or in a county adjoining that in which if is triable..

This, we think, is a misconception of the language of section 772. The section refers, as we construe it, to the provisional remedies, described as such, in the Code itself (chap. 8), and to the mode specially prescribed by the Code for vacating or modifying an order granting any of such provisional remedies. The provisional remedies treated of by the Code under that specific designation are: “Arrest,” “ Injunction,” “Attachment of property,” “ Receivers ” and “ Deposit, delivery or conveyance of property.” The mode in which an order granting either of the first three remedies may be vacated or modified is' specifically pointed out by the Code. (Arrest, §§ 567,568; Injunction, §§ 626 to 630; Attachment, §§ 682 to 696.) As to the others, no mode is specially provided, for the reason, probably, that those remedies can be granted only on notice, except that a motion without notice may be made for a receiver when the adverse party has failed to appear. (§§ 714, 717.) The “provisional remedies ” provided for by the present Code are substantially the same as those defined by its predecessor, with the single exception that proceedings to replevy personal property are omitted from that class of remedies, and are treated of in a separate chapter, for the reason stated by Mr. Throoj> in his note at the head of chapter 7. Under the former Code, the term “ provisional remedies ” acquired a well-understood technical meaning, and we think that wherever the term is used in the new Code it is employed in the same general sense.

This construction is strengthened, we think, by section 416 of the present Code, which seems to indicate that the service of a summons, whether personal or constructive, was not regarded by the law makers as a provisional remedy. The section is: “A civil action is commenced by the service of a summons, but, from the time of the. granting of a provisional remedy, the court acquires jurisdiction, and has control of all the subsequent proceedings. Nevertheless, jurisdiction so acquired is conditional, and liable to be divested in a case where the jurisdiction of the court is made dependent, by a special provision of law, upon some act to be done after the granting of the provisional remedy.” Three modes of serving a summons are provided by the Code : Personal, substituted and by publication. Regular service in either mode gives the court complete and absolute jurisdiction. If service be made in either of the two latter modes, the defendant may be let in to defend in certain circumstances which would debar him if the service were personal (§ 445); but the jurisdiction acquired is not conditional merely and liable to be divested, as in the case where it is acquired by the granting of a provisional remedy. The character of the latter jurisdiction is shown by the case of Waffle v. Goble (53 Barb., 517), referred to in the reviser’s note to section 416 of the new Code.

The respondent’s counsel contends that the term provisional remedy ” is to be understood in a much broader sense. Any provision, says the counsel, which affords a means other than the usual and general way to accomplish an end is a provisional remedy; or, as was said in the opinion of the learned judge who made the order appealed from, as the order was made to meet a particular and pressing exigency which prevented the commencement of the action in the' ordinary way, it was one which the law ‘ provided for the occasion,’ and is, therefore, directly and literally within the meaning of the word provisional,’ as defined by lexicographers.” In that broad sense, the term would include every special order out of the usual course in the progress of an action. We are not prepared to adopt that construction.

We think the order for substituted service did not grant a provisional remedy within the meaning of the Code, and that the judge who granted it had jurisdiction to entertain a motion to vacate or modify it. (Code, § 772, last clause.) The merits of the motion are not before us on this appeal. We reverse the order and give the defendant leave to renew the motion to vacate, on notice to be served within ten days after entry by him of the order herein; or, if he does not enter the order, within ten days after the order shall be served upon him, the appellant to have ten dollars costs and disbursements of the appeal.

Mullin, P. J., and Talcott, J., concurred.

Ordered accordingly.


source: Caselaw Access Project

author: Smith, J.:

license: Public Domain

text:
    RUSSEL B. BIDDLECOM, Plaintiff, v. PLINY NEWTON, as Supervisor of the Town of Orleans, Defendant.

      Proceedings for bonding towns — commissioners to issue bonds — omnulling of proceedings— effect of, 07i powers of commissioners.

    On July 1, 1871, the county judge of Jefferson county, in proceedings instituted before him, under chapter 907 of 1869 and chapter 935 of 1871, appointed commissioners to issue bonds in aid of the construction of a railroad. The proceedings were removed by cw'tíora/ri to this court, and on July 1, 1873, a judgment was entered affirming them. On February 34, 1873, the Court of Appeals reversed the judgment and directed the county judge to dismiss the application. After the issuing of the certioiwi, the commissioners issued bonds to the amount of $80,000 and delivered them to the plaintiff, the agent and treasurer of the railroad company, who delivered in exchange therefor the stock of the company. Both the plaintiff and the commissioners knew of the pendency of the certiora/ri. The money necessary to pay the interest on the bonds for a certain time had been levied and received by the collector. In this action brought to recover the amount of certain coupons attached to the bonds, the money to pay which had been collected, the plaintiff produced an instrument signed by the persons appointed commissioners, reciting their appointment, and the fact that the proceedings had been declared void, and transferring to plaintiff all their right to the bonds as commissioners or otherwise.
    Held, that the money having been collected for the specific purpose of paying the coupons, that if it was the duty of the defendant to pay it over to the holders of the coupons, he could not set up the invalidity and reversal of the proceedings before the county judge as a reason for not doing so.
    That it was, in fact, his duty to pay the commissioners, and not the holders of the coupons.
    That the commissioners had no right to, or interest in the fund except as commissioners, and while continuing to hold the office, and that they could not transfer their official rights or divest themselves of their official duty.
    That immediately upon the decision of the Court of Appeals,, they ceased to be such commissioners and to have any interest whatever in the fund. •
    That nothing passed to the plaintiff by the pretended transfer, and that plaintiff could not recover.

      Semble, that where exceptions are taken during the trial, the direction of a verdict, subject to the opinion of the court, is error; that the consent thereto is a waiver of the exceptions.
    Motion by plaintiff for judgment on a verdict, ordered in bis favor at tbe Jefferson Circuit, subject to tbe opinion of tbe court at General Term.

      J. F. Starbuck, for the plaintiff.
    By special act of the legislature, under which the defendant received the money, the defendant is put in the place of, and subjected to the same liabilities, as the collector. The defendant cannot question the validity of the bonds or the right of the plaintiff to the money. (People exrel. Martin v. Brown, 55 N. Y., 182; Murdock v. Aikin, 29 Barb., 67; Merritt v. Willard, 4 Keyes, 208; Boss v. Cwrtiss, 31 N. Y., 606.) The money was collected by tax to pay a debt of the town to the plaintiff, and the plaintiff has the same right to it that he would have had, had it been collected by the sheriff upon an execution against the town after judgment in his favor. (Mwrdock v. Aikin, 29 Barb., 67; 25 How., 594; People v. Bd. of Police, 63 N. Y., 623; Lawrence v. Fox, 20 id., 268 ; Schermerhorn v. Vanderheyden, 1 Johns., 140; Pratt v. Adams, 7 Paige, 615; Clark v. Fly, 2 Sandf. Chy., 166; IT Yes., 22; 1 Johns. Chy., 129; Gould v. The Town of Sterling, 23 N. Y., 439; Boss v. Cwrtiss, 31 id., 606.) The tax-payers who paid this money are the only parties who could question the legality of the act of the board in raising it. (BelUnger v. Gray, 51 N. Y., 610; Union Nat. Bank v. Mayer and others, 51 id., 638; Bk. of Commonwealth v. Mayer, 43 id., 184.) But the tax-payers having voluntarily paid the money, are precluded from questioning the legality of the act of raising the same. (People v. Williams, 3 N. Y S. C. [T. & C.], 341.) The tax-payer could only attack the action of the board by bringing it up directly for review before the court. He could not permit the action of the board to stand unreversed and attack the action of the board of supervisors in a collateral proceeding or action. (Mooers v. Smedley, 6 Johns. Ch., 28; Susquehanna Bk. v. Supervisors, 25 N. Y., 312; Mut. Benefit Life Ins. Co. v. Supervisors, 3 Keyes, 182; Haywood v. The City of Buffalo, 10 N. Y., 5-34; Hasbrook v. The Kingston Bd. of Health, 3 Keyes, 480; The People v. Swprs. of Westchester, 57 Barb., 380; Comins v. Bd. Suprs. of Jefferson County, 13 Alb. Law Jour., 113; Kilborn v. St. John, 59 N. Y., 21; 19 Wallace, 187; 19 id., 655; Guest v. Brooklyn, 4 N. Y. Weekly Digest, 559.) The town has not returned the stock received in exchange for the bonds. (Pendleton County v. Amy, 13 Wall., 297; Suprs. v. Schenck, 5 id., 581; Newton v. Keech, 9 Hun, 361; Town of Venice v. Woodruff, 62 N. Y., 462.)

      L. PL. Brown, for the defendant.
   Smith, J.:

The order in this case, directing a verdict subject to the opinion of the court, was irregular. Exceptions were taken by each party to rulings admitting or excluding evidence. The defendant also excepted to the ruling of the court that there was no question of fact in the case, and to the refusal to submit to the jury the question whether the plaintiff was guilty of a fraud, in connection with the commissioners, in issuing the bonds, pending the certiorcw-i. Irrespective of the merits of the exceptions, the order was erroneous. (Cobb v. Cornish, 16 N. Y., 602; Purchase v. Matteson, 25 id., 211; Sackett v. Spencer, 29 Barb., 180; Bell v. Shibley, 33 id., 610.)

Had both parties consented to such a disposition of the case at the time, their consent probably would have been an abandonment or waiver of the exceptions. (Byrnes v. The City of Cohoes, 67 N. Y., 204.) But there is no evidence of such consent on the part of the defendant; on the contrary, the case shows that his counsel excepted to the order by which the case was disposed of.

Hpon the argument of this motion, however, the defendant makes no reference to the alleged irregularity, or to his exceptions, but he opposes the motion on the merits, contending that the court should order judgment in his favor upon the verdict. This, we think, is a waiver of the irregularity in the order, ana of the exceptions taken by him, and the question is before us, which of the parties is entitled to judgment. (Briggs v. Merrill, 58 Barb., 389.)

The facts of the case, as we gather them from the evidence, are these : The plaintiff claims to be the holder and owner of certain interest coupons which were originally attached to and have been cut from certain instruments purporting to be bonds of the town of Orleans, issued in aid of the construction of a railroad, by commissioners appointed by the Jefferson county judge, in proceedings instituted before him, under chajiter 907 of the Laws of 1869, and chapter 925 of the Laws of 1871. The plaintiff claims judgment for the sum of $8,050, the amount due on said coupons, with interest from November 25,1876, the day on which the verdict was rendered. The order appointing the commissioners was made July 1, 1871. The proceedings before the' county judge were removed into this court by a writ of certiorari, which was sued out in September or October, 1871, and the return to which was filed in December, 1871. On July 1,1872, a judgment of this court was entered affirming the proceedings before the county judge. From that judgment an appeal was taken to the Court of Appeals, and on the 24th of February, 1873, the latter court reversed the judgment of this court, and the proceedings had before the county judge, on the ground that a majority of the tax-payers representing a majority of the taxable property, did not join in the application for bonding, and the county judge was directed- to enter an order dismissing the application. (People ex rel. Irwin v. Sawyer, 52 N. Y., 296.) Subsequently to the removal of the record by cerUora/ri, and while the writ was pending, to wit, on the 3d of April, 1872, the commissioners issued bonds of the town to the amount of $80,000, and delivered them to the railroad company in exchange for the stock of the company, or script for stock, to the like amount. The company was represented in that transaction by the plaintiff, who was its treasurer, and who, as such, delivered the stock and received the bonds in behalf of the company. The bonds then issued are the same bonds to which the coupons in suit were attached. The commissioners and the plaintiff had notice of the pendency of the cerUora/ri at the time. The stoclj or script has remained in the hands of the commissioners ever since, and nothing has been done by the town, or its officers, or agents, other than the commissioners, ratifying said transaction, or recognizing the validity of the bonds. On November 9, 1872, the commissioners reported to the board of .supervisors that it was necessary to raise the sum of $8,154.75 to pay the interest on said bonds falling due in August, 1872, and February and August, 1873, and the supervisors levied that sum upon the taxable property of the town, and directed it to be collected and paid to the commissioners for interest on said bonds. The only interest falling due on the bonds in the years 1872 and 1873, so far as appears, was that which matured on the coupons in suit. The tax was collected, and the collector, Keech, was restrained from paying the money to the commissioners by an injunction order which was granted on the application of the present defendant. Subsequently the complaint in the action in which the injunction was ordered, was dismissed, after a trial of the action, and thus the order was vacated. It appears that an appeal was taken from the judgment dismissing the complaint, but what disposition was made of it, or whether it is still pending, is not shown. In the meantime the money remained in the hands of the collector, and he wished to pay it to the party entitled to it in extinction of his liability and in exoneration of his bail. The plaintiff claimed it for the purpose above stated, and the defendant claimed that it should be paid to him, as supervisor, to the general credit of the town. In this state of things the legislature, on 26th April, 1876, passed an act (Laws 1876, chap. 178) by which Keech was authorized and directed to pay said money to the supervisor of the town of Orleans, and the supervisor was to receive the same, and Keech and his bail were thereupon to be discharged. Section 4 made it the duty of the supervisor, on receipt of the money, to keep and apply it toward the extinguishment of the next tax assessed on the town of Orleans after the receipt of said money. Section 5 is in the following words : “ Nothing in this act contained shall be so construed as in any manner to affect the right of the holder of any coupons cut from any bonds issued by said town for railroad purposes, to maintain an action against said town to recover the money intended to be secured by such bonds and represented by such coupons ; and all the rights now by law existing in such holders to have such coupons paid out of the money mentioned in section 1 of this act shall continue in full force against said town. The supervisor of the town of Orleans by accepting the money mentioned in the first section of this act shall be deemed thereby to have assumed and accepted all the liabilities in regard thereto, that existed against the said John Keech before the passage of this act, and any and all remedies that might have been enforced against the said John Keech shall thereafter exist against the said supervisor and may be enforced against him.”

The obvious purpose of this legislation was to relieve the collector and his bail from liability on his paying the money to the supervisor, without affecting the rights of the holders of the coupons therein mentioned. To that end the supervisor, on receiving the money, was put in the place of the collector, and was subjected to all the liabilities and remedies existing against the collector in favor of tbe holder of tbe coupons. Tbe provision of tbe fourth section that tbe supervisor should apply tbe money to tbe extinguishment of tbe next tax assessed on tbe town is not inconsistent with this construction. If tbe money should be so applied tbe only consequence would be that upon a recovery against tbe supervisor by a bolder of tbe coupons, pursuant to section 5, tbe supervisor would be required to pay tbe amount out of any moneys in bis bands belonging to tbe town not specially appropriated, or if not paid the amount could be collected of tbe town according to tbe provisions of tbe general statutes. (2 It. S., 475, §§ 106, 102, 103.)

What remedy, then, bad tbe plaintiff against tbe collector ? Could be have maintained an action against him for tbe amount of tbe coupons ? Assuming that it was tbe duty of tbe collector to pay to the bolder of tbe coupons, we think tbe plaintiff’s counsel is correct in bis position that tbe collector could not have set up tbe invalidity and reversal of tbe proceedings before tbe county judge as a reason why be should not pay over tbe money levied and collected for tbe specific purpose of paying tbe coupons. He could not question tbe legality of tbe bonds, and would have no discretion in that respect. (Ross v. Curtiss, 31 N. Y., 606; People v. Brown, 55 id., 180, 187; People v. The Board of Police, etc., 63 id., 623; First National Bank of Oxford v. Wheeler, 17 Alb. L. J., 154; S. C., 6 N. Y. W. Dig., 28.)

But tbe duty of tbe collector was to pay to tbe commissioners and not to tbe bolder of tbe coupons. His warrant directed him to pay to the commissioners or their successors in office. For tbe purpose of obviating tbe difficulty growing out of this consideration tbe plaintiff produced in evidence an instrument in writing, executed by tbe persons who were appointed commissioners, reciting their appointment in tbe proceedings before. tbe county judge, and tbe fact that said proceedings bad been declared void and dismissed and purporting to transfer to tbe plaintiff all their right to tbe fund, as commissioners or otherwise. It seems to us tbe attempted transfer was a nulllity. Assuming that tbe parties executing it were commissioners by valid appointment they bad no right to, or interest in tbe fund, except as such commissioners, and while continuing to bold tbe office they could not transfer their official rights in respect to tbe fund or divest themselves of their official duty to receive it and dispose of it as directed by law. Much less could tuey impose upon the collector a duty to pay the money to any person other than those directed in his warrant. But they were not duly appointed commissioners. It was a necessary consequence of the adjudication of the Court of Appeals that there were no such officers and there was no such office. At the time of the execution of the proposed transfer, therefore, the parties executing it were not authorized to act as commissioners, and as they had no interest in the fund as individuals the assumed transfer passed nothing and was void. In Ross v. Curtis, and the other cases above cited in connection with it, there was a breach of duty on the part of the supervisor, or other officer, to pay over as required by law, and, besides, there had been no adjudication declaring void the bonds or other demands, in payment of which the money was to be applied. The resort to the assumed transfer is an attempt to do indirectly what could not be done directly. The parties executing it could not have maintained an action, or a proceeding by mandamus, to compel the collector to pay over to them, except upon the assumption that they were commissioners, an assumption which the judgment of the court did not permit.

It results from these views that the plaintiff has no cause of action against the defendant; and in this there is no hardship as he'was not only instrumental in procuring the bonds to be issued, but at that time, and when he invested his money in the coupons in suit, he had notice that the oertiora/ri was pending.

Judgment of nonsuit should be ordered.

Mullin, P. J., and Talcott, J., concurred.

Judgment of nonsuit ordered.


author: Taxoott, J.:

text:
    JOHN HOFFMAN, Administrator of MARGARET HOFFMAN, Deceased, Appellant, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent.

      Contributory negligence — when a question for the jury.

    This action was brought to recover damages for the death of plaintiff’s intestate alleged to have heen caused by defendant’s negligence. At Amboy the defendant had four tracks, numbered from the south 1, 3, 3 and 4; 1 and 3 being for passenger, and 3 and 4 for freight cars. Upon land adjoining the southerly tracks owned by the defendant, it had erected a station and a plank sidewalk, leading westerly about 100 feet to a highway. At the time of the accident the plank-walk was so obstructed with snow as to be impassable. East of the highway cattle guards had heen constructed, the southerly two being planked over and the northerly two left open, ‘but the two latter were, at the time of the accident, so filled and covered over with snow, as to be entirely concealed.
    The plaintiff’s intestate who lived on the aforesaid highway, a few rods northerly from the crossing, arrived at Amboy in the morning with two children, one about three years old and the other an infant, and was assisted from the cars on the southerly side of track No. 3; she started to walk westerly and diagonally across the tracks toward the highway, the shortest route to her house; a gravel train was approaching on track No. 3; after she had walked about fifty feet she fell into the cattle guard which was concealed by the snow, and before she could extricate herself she was run over by the gravel train and killed. If she had not so fallen she would have had time enough to cross the track before the train would have reached that point. The justice at the Circuit granted a nonsuit. Held, that this was error and that the case should have been submitted to the jury.
    Appeal from a judgment in favor of tbe defendant for costs, after a nonsuit directed at tbe Circuit.

      Isaac F. Garfield, for tbe appellant.
    Tbe deceased'was a passenger on tbe defendant’s railroad, and it (tbe defendant) was under an obligation to provide for ber an easy and safe mode of egress from its station to tbe nearest street, and until it did so, its liability as a earner of passengers did not terminate. (Dillmje v. New York Central Baitroad Company, 56 Barb., 30 and 38; Hulbert v. New York Central Baitroad Company, 40 N. Y., 145 ; see pp. 150, 151 and 152; 97 Mass., 275, p. 278.) Tbe rule that tbe defendant owed a legal duty to tbe deceased, sbe being a passenger, although injured upon defendant’s land, is laid down in Nicholson v. Eric R. R. Co. (41 N. Y., 533; opinion by Earl, Ch. J.). The deceased had ample time to have crossed had she not fallen into the guard, and under such circumstances negligence cannot be predicated upon her attempt to cross the track. (Aaron v. Second Ave. R. R. Go., 2 Daly, 127; Baxter v. Same, 3 Bobt., 570; MentzY.Same, 3 Abb. Ct. App. Dec., 274; affirming, 2 Bobt., 356.)

      Q. N. Kennedy, for the respondent.
    There was no question for the jury. The conduct of the plaintiff in running as she did, incumbered with her children and bag, directly across defendant’s tracks, and in front of an approaching train, was an act of contributory negligence. (Belton v. Baxter et ad., 54 N. Y., 245; Barker v. Savage, 45 id., 193; Filer v. N. Y. Central R. R. Go., 49 id., 51; Wilcox, Ad/rrvr., etc. v. Rome and Watertown R. R., 39 id., 358.) The attempt to cross in front of an approaching train is recklessness. (Gonzales v. N. Y. and Harlem R. R. Co., 38 N. Y., 443; Warner v. N. Y. G. R. R., 44 id., 466.) The facts in this case being uncontradicted, the question of negligence is one of law for the court. (Same case, p. 442; Mitchel, Ad/rwr., v. N. Y. Central and H. R. R. R. Go., 64 N. Y., 655; Kenyon v. N. Y. C. and H. R. R. Co., 12 Supreme Court Bep., 481.)
   Taxoott, J.:

This is an appeal from a judgment rendered in favor of the defendant for costs, on a nonsuit ordered at the Onondaga Circuit.

The action is to recover damages for the alleged negligence of the defendant, whereby it is claimed that the plaintiff’s intestate was killed on the morning of the 16th of December, 1875. The plaintiff on that morning was a passenger on one of the trains of the defendant from Syracuse to Amboy station, near which latter place she resided, and which is a small way station on the defendant’s road a few miles west of Syracuse. At Amboy station the defendants have four tracks numbered, respectively, from the south, 1, 2, 3 and 4. The two southerly tracks are used for passenger cars and the two northerly for freight cars. The defendant had erected a small station at this place which was upon their land on the southerly side of the tracts, and about 100 feet easterly from a point where the tracks of the defendant crossed a highway. In order to afford proper access for foot passengers to and from the station-house to the highway, the defendant had constructed on their own land, and westerly from the station along the southerly side of the four tracks, a plank sidewalk. But there had been several falls of snow at the place, and although it was a bright and clear morning when the deceased arrived at the station, a light snow of some few inches in depth had fallen the night before. The snow, had so drifted in upon the plank sidewalk and been, by the employes of the defendant, shoveled from the tracks on to the planlc-walk, that the latter was obstructed and rendered, according to some of the witnesses, impassable for foot passengers, so that the sole means of egress from the station to the highway, was by walking over the space occupied by the tracks. On the easterly side of the highway the defendants had constructed near the line of the highway, perhaps partly in the highway, cattle guards under each of its four tracks. The two southerly of these cattle guards were, however, .planked over, so that they could be passed over both by passengers and animals. The two northerly cattle guards were, however, left open under the freight tracks, but at the time of the accident, resulting in the death of the intestate, they were filled with snow, and by the snow fall of the night before so covered up and concealed, that there was nothing to disclose to the passer-by that the cattle guards existed.

The intestate arrived at Amboy station about eight o’clock in the morning. Her house was on the highway a few rods from the railway crossing; she arrived, as before stated, with her two children, one about three years old and the other an infant in arms ; she was assisted out of the car on the southerly side of track No. 2, on which she came, and after waiting for the cars to pass on westerly by reason of the plank sidewalk being obstructed, as aforesaid, she undertook to cross the four tracks diagonally, the shortest route to her home, which was north of the railroad crossing. At this time there was a gravel train upon track No. 3, the track next north of the one upon which the intestate had arrived at the station, and taking her infant in her arms and a small satchel in her hand and leading the other child by her other hand, she pursued the route indicated for the distance of about forty-five feet, when she fell into the cattle guard under track No. 3, and before she could recover herself was ran over by the gravel train and instantly killed. The engineer of the gravel train blew the whistle as a signal to alarm persons who might wish of attempt to cross the trade, but at what distance from the highway crossing did not clearly appear. At any rate the deceased probably saw the gravel train approaching and kept on in her course, having, as the court assumed, sufficient time to cross track No. 3, on which the gravel train was advancing, had she not fallen into the cattle guard.

It was held in Dillaye v. The New York Central Railroad Company (56 Barb., 30), MuluN, J., delivering the opinion of the court, that a railway company owes to its passengers the duty of providing a safe and easy mode of egress from its station to the nearest highway. This was held in a case in which the passenger injured, was riding upon a freight train. The decision was reversed in the Court of Appeals (see 2 Alb. Law Journal, 356), without, however, questioning that the duty indicated by the Supreme Court was applicable in the case of a passenger upon a regular passenger train, the court holding that the receipt of fare from such passengers as succeed in getting on a freight train cannot be considered as a general invitation to the public 'to ride in that way at their pleasure.

Here, the proper pathway was obstructed so as to be rendered, in some sense, impassable, and there was no other mode of egress from the defendant’s station, except along or across its track. (Hulbert v. The N. Y. Central, etc., 40 N. Y., 145.) The question then arises whether, supposing the deceased to have seen the gravel train, perhaps before she actually reached the third track, and there being, apparently, sufficient time to have allowed her to cross the third track in safety, was it her duty to have instantly stopped, and was her omission to do so such clear evidence of negligence on her part that her administrator cannot recover even though she fell into the cattle guard and was thus prevented from crossing ? On this subject we ai’e referred, by the counsel for the respondent, to the case of Belton v. Baxter (54 N. Y., 245), in which a judgment for the plaintiff was reversed by the Commission of Appeals, upon the principle that it is negligence per se for a foot passenger to attempt to cross a public thoroughfare, upon a nice calculation of chances of injury, and that, if in such case, the attempt be made and tbe calculations fail, to tbe plaintiff’s barm, be can bave no redress for injuries received in bis mistaken effort. But tbe case of Belton v. Baxter and others, was again tried and in process of time, came again on appeal before tbe Court of Appeals proper, and is reported in 58 New York, 411, where that court, upon a slight difference in tbe verbiage of tbe evidence, reversed a judgment of non-suit which bad been rendered upon tbe second trial. AlleN, J., delivering tbe opinion, says: Upon tbe whole evidence before us, it is not conclusively shown or necessarily to be inferred that tbe plaintiff knew or bad reason to believe, at tbe time of bis attempt to cross tbe avenue, that tbe cart, instead of following tbe car, bad turned off and was passing it. * * * If such was tbe fact, it was not sworn to by tbe plaintiff; neither is it a necessary inference. * * * If the fact is to be inferred from tbe evidence, it must be drawn by a jury and not by the court. * * * If tbe evidence is conflicting, is capable of different interpretations, or tbe inferences to be drawn from it are doubtful, it is tbe province of tbe jury to pass upon it. * * * "Whether it was prudent or imprudent for the plaintiff to attempt to cross tbe avenue under all tbe circumstances will be for tbe jury to determine. * * * It was error to non-suit tbe plaintiff on that ground.”

So here, there was some evidence, so that the court at one time assumed, that if tbe deceased bad not fallen she would bave bad ample time to bave got across. See Mentz v. Second Avenue R. R. Co. (3 Abbott’s Court of Appeals Decisions, 214), where it was held that tbe rule requiring care and diligence on tbe part of tbe plaintiff, does not require him to anticipate tbe possibility of an accidental fall at an ordinary crossing:

In this ease tbe leaving of tbe plank sidewalk in such a condition as that passengers from tbe station to tbe highway, were obliged to take tbe defendant’s tracks, and then suffering tbe snow to accumulate in an open cattle guard, so that there was nothing discernible upon tbe surface to indicate tbe existence of a cattle guard or any other hindrance to a safe and expeditious crossing operated as a mere trap. It is said that tbe deceased lived near tbe neighborhood of these cattle guards, and bad, several times before, traveled on tbe railroad to and from Syracuse, and that consequently she must be presumed to have known all about tbe cattle guards. It does not appear that she had been there before when the guards were filled with snow, or when they were not readily observable, and she could scarcely be expected by a mere effort of memory, to be able to fix the exact location of the cattle guard into which she fell. That she did not, seems obvious, and we think that, under the circumstances of this case, it should be left to the jury to say whether the deceased would have had sufficient time to have crossed track No. 3 in safety, notwithstanding the apjn’oach of the gravel train, had it not been for the concealed cattle guard, left so by the negligence of the defendant, and into which she fell while making the attempt to cross. The nonsuit, we think, was erroneous for the reasons stated.

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

Present — Mullin, P. J., Talcott and Smith, JJ.

Ordered accordingly.


author: Taloott, J.:

text:
    SAMUEL V. MILLER, Appellant, v. ARTHUR O’KAIN, Respondent.

      Ba/iilvmptoy aot — when proceedings a/i'e determmccL — •Rights of sw'eiy of bankrupt.

    Under the provisions of the bankrupt act prohibiting any creditor who has proved his debt or claim from maintaining any suit at law or in equity thereupon against the bankrupt, unless a “dischargehas been refused or the proceedings have been determined without a discharge,” the proceedings are not determined unless an order to that effect has been entered by the United States Court.
    If a creditor has proved his claim against the bankrupt, a surety for the bankrupt, who, after such proof thereof, pays the debt, occupies the position of the original creditor as to the enforcement of the claim by suit.
    Appeal from a judgment in favor of the defendant, entered upon a nonsuit directed by the court. The action has already been before the General Term, its decision being reported in 5 Hun, 39.

      JRabph T. Wood, for the appellant.

      Charles 8. Bal&er, for the respondent.
   Taloott, J.:

This is an appeal from a judgment rendered for tbe defendant for costs in an action brought on a promissory note for $115, given by tbe defendant to tbe plaintiff, and also for moneys paid by tbe plaintiff on account of a note wbicb be. bad signed as surety for tbe defendant and at bis request. Tbe note to tbe plaintiff fell due in April, 1871. Tbe note paid by tbe plaintiff wbicb be bad signed as a surety for defendant fell due in November, 1866. Tbe cause was tried by tbe court without a jury. On tbe 7th of February, 1872, tbe defendant was adjudged a bankrupt in proceedings regularly instituted in tbe District Court of tbe TTnited States for tbe northern district of New York. On tbe first day of March, 1872, tbe plaintiff, as a creditor of tbe defendant .and bankrupt, duly proved in bankruptcy bis note, described in tbe first count of tbe complaint; and on tbe 14th day of March, 1872, Isaac Hewitt, then tbe bolder and owner of tbe note wbicb tbe plaintiff bad signed as surety for tbe said defendant bankrupt, duly proved in bankruptcy tbe note described in tbe second count of tbe said complaint. Tbe plaintiff, as such surety,. after such proof, paid to tbe said Hewitt tbe whole amount of the note wbicb be (tbe plaintiff) bad so signed as surety, and tbe said note was by tbe said Hewitt delivered to tbe said plaintiff. Afterwards, and on or about tbe 18th of February, 1873, tbe register in bankruptcy declared a dividend to tbe creditors of tbe bankrupt, who bad proved their claims, out of the assets wbicb bad come to tbe bands of tbe assignee, as such assignee in bankruptcy of tbe defendant, wbicb dividend amounted to tbe sum of fifteen dollars and thirty cents on tbe note described in tbe first count of tbe complaint and held by tbe plaintiff, and to tbe sum of sixty-five dollars and fifty-three cents on tbe amount of the debt arising on tbe note wbicb bad been signed by tbe plaintiff as surety and wbicb bad been proved in bankruptcy by Hewitt. Both of these amounts were duly paid by tbe assignee to tbe plaintiff, and were accepted by him as applicable to tbe debts on wbicb they were declared.

After tbe payment of said dividends, and before tbe commencement of this action, tbe assignee in bankruptcy rendered bis accounts as such to tbe register, and was by him duly discharged. After such discharge and accounting no further proceedings Have been bad in tbe bankruptcy case by or in bebalf of tbe bankrupt or any creditor. Tbe court, at tbe Circuit, beld as conclusions of law that by proving in bankruptcy tbe note described in tbe first count of tbe complaint, tbe plaintiff is deemed to have Avaived all right of action and suit thereon until such time as tbe proceedings in bankruptcy are determined; and that tbe said Hewitt, by proving tbe said debt on tbe note wbicb tbe plaintiff bad signed as a surety for tbe defendant, bad waived all right of action thereon in like manner ; and that tbe said plaintiff, by tbe payment of said amount to Hewitt, and tbe receipt and acceptance from tbe assignee in bankruptcy of tbe dividend thereon, elected to stand in tbe place of Hewitt, and was also prevented from maintaining a suit for tbe money paid by him or upon tbe said note until tbe determination of such proceedings in bankruptcy; that at tbe time of tbe commencement of this suit and the tidal of tbe action, tbe proceedings in bankruptcy commenced by tbe said defendant were not fully determined, and as a necessary conclusion from tbe foregoing premises rendered a judgment for tbe defendant for costs as to both said causes of action.

By tbe bankrupt act, as it was originally passed, it was enacted “that no creditor proving bis debt or claim shall be allowed to maintain any suit at law or in equity therefor against tbe bankrupt, but shall be deemed to have waived all right of action against him, and all proceedings already commenced or unsatisfied judgments already obtained thereon against tbe bankrupt shall be deemed to be discharged and surrendered thereby.” (H. S. Rev. Stat., 5105.) This was amended by act of congress June 22, 18Y4, by providing as follows: “ But a creditor proving bis debt or claim shall not be deemed to have waived bis right of action or suit against tbe bankrupt where tbe discharge has been refused or tbe proceedings have been determined without a discharge. (18 U. S. Stat. at Large, 179, § 7.)

No discharge has been refused to tbe bankrupt, and tbe Special Term beld that tbe proceedings in bankruptcy had not been determined without a discharge. There was some conflict of opinion in tbe United States courts whether tbe right on tbe part of tbe bankrupt to apply for a discharge from bis debts under tbe act was limited to one year by section 29 of tbe original bankrujot act, or whether the limitation of one year was only applicable to cases where no debts had been proved and no assets had come to the hands of the assignee. (See Wood v. Hazen, 10 Hun, 362.)

But in Wood v. Hazen this General Term held, following the rules of Mr. Justice Blatoheord and Judge Nelson, made in the Circuit Court of the United States (and which are the same cases relied upon by the judge at Circuit in this case) that the limitation of one year, within which the bankrupt might apply for a discharge, did not apply to those cases in which debts had been proved against the bankrupt and assets had come to the hands of his assignee; that there was no statutory limitation npon the right to apply for a discharge in cases of the latter description, and that the proceedings in bankruptcy could not be considered as determined under section 5105, as amended by the act of June 22,1871 (supra), and that the right of a creditor who had proved his debt in bankruptcy was suspended indefinitely, until some order of the court in bankruptcy had been made declaring the proceedings to be determined.

It seems that the judge of the southern district, with a view, prohahly, to meet this difficulty, had made a rule declaring that a canse in bankruptcy is not to be deemed finally disposed of until an order is entered in the District Court declaring its termination,” which order is to be made on motion to the bankrupt; but no such rule, as we are advised, exists in the northern district. And as to proceedings in bankruptcy in the northern district of New York, we suppose a special order in each case would be necessary in order to bring the proceedings in bankruptcy to a close, so that the suspension of a right to sue, which results from the proof of the debt in bankruptcy, while the creditor is desirous of using the same as a cause of action, may be brought to an end. This probably should be on notice to the bankrupt, as is provided by the rule in the southern district; and on that motion both the bankrupt and the creditor can be heard.

In regard to the claim founded on the money paid to discharge the debt on which the plaintiff was a surety, the plaintiff claims that that debt was not proved by him, and consequently that as to that, there is no suspension of a right of action. But such debt was provable under the bankruptcy, as is conceded, and the discharge, if granted, will operate to release the bankrupt from the same, though, the payment by the plaintiff was after the decree in bankruptcy. The section 5070 of the Revised Statutes provides that any person liable as bail, surety, guaranty or otherwise for the bankrupt, who shall have paid the debt or any part thereof in discharge of the whole, shall be entitled to prove such debt, or to stand in the place of the creditor if the creditor has proved the same, although such payments shall have been made after the proceedings in bankruptcy were commenced.” This seems accurately to describe the position of the plaintiff as to the claim described in the second count of the complaint, and we interpret the section to mean that if the creditor has proved the debt against the bankrupt, the surety who shall have paid the debt after that time is, by force of the statute, subrogated to the position of the original creditor as to the proof, the dividends and the claim or debt. The plaintiff received the dividend, which he could not have done unless the debt had been proved in bankruptcy. He cannot be permitted to avail himself of the proof of the debt for the purpose of receiving the dividends and repudiate it so far as it operates to create a suspension of his right to sue on the demand. On the whole case, we think the judgment rendered at the Circuit is correct.

Judgment affirmed.

Present — Mullin, P. J., Talcott and Smith, JJ.

Judgment affirmed.


author: Talcott, J.:

text:
    MARGARET T. O’GRADY, Appellant, v. JOHN S. COE, as Executor, etc., of THOMAS O’GRADY, Deceased, Impleaded with others, Respondent.

      Pwrchase by agent of demand against principal — upon what terms Oow't of Equity will set it aside.

    Thomas O’Grady and wife executed a bond and mortgage to one W., who thereafter assigned the same to a son of the said Thomas, who assigned it to one Doyle, who assigned it to the son’s wife, the plaintiff herein. The last two assignments were without consideration. At the time of the purchase of the mortgage by the son, he was acting as confidential agent of his father. In an action to foreclose the mortgage, the referee held that the confidential relations existing between the father and son prevented the latter from purchasing the mortgage, and that the assignment to him was void.

      Held, that this was error; that at law the assignment vested the legal title in the son, and that equity would not allow the title so acquired to he taken from his assignee except upon the payment of the amount expended in purchasing the same.
    Appeal from a judgment entered on the report of a referee, dismissing plaintiffs complaint.

      John Oallister, for the appellant.

      D. Herron, for the respondent.
   Talcott, J.:

This is an appeal from a judgment entered on the report of a referee, dismissing the plaintiffs complaint.

The action was in the ordinary form to foreclose a mortgage. Certain infants appeared by their guardiam. ad Mtem, who put in the usual general answer in behalf of the infants.

Thomas O’Grady put in an answer setting up, in substance, that the mortgage was made for the benefit and accommodation of his son, Michael O’Grady, who had the money and agreed to pay the mortgage. The mortgage was made by Thomas O’Grady and Margaret, his wife, to the exeeutors.of Jared Wilson. Margaret has since died intestate and was seized of the mortgaged premises at her death. After her death Michael O’Grady, the son, took an assignment of the mortgage from the executors of Wilson, paying the full face thereof. After about a year he assigned the mortgage to Thomas Doyle, who, on the same day, assigned it to the plaintiff, then the wife of Michael. There was no consideration passing between Michael and Doyle or Doyle and the plaintiff, but the assignment to Doyle was for the purpose of having him assign the same to the wife of Michael. Michael has since died.

The referee has found the issues presented by the answer of Thomas O’Grady in the negative, and that the proceeds of the bond and mortgage were obtained and used for the benefit of Thomas O’Grady. But he finds that in the transaction of negotiating the mortgage, and in other matters in assisting his father to get into business and taking some charge of bis business, Michael was acting for, and was the agent of, Thomas O’Gradj, and by reason of such relation had no right to purchase the said bond and mortgage in his own name and for his own benefit, though he expressly finds that Michael purchased the same with his own money, and that his father, the said Thomas O’Grady, was at the time indebted to Michael in a considerable amount. He finds as a conclusion of law upon the foregoing facts that Michael, being the agent of Thomas, could not legally take and hold the bond and mortgage for himself, and that his assignee, Hoyle, got no right or title to the bond and mortgage, and could not legally assign the same to the plaintiff, who has consequently no title to the bond and mortgage, and he therefore directs a judgment dismissing the complaint with costs.

It will be observed that Thomas O’Grady sets up no such defense, and does not seek to question the right of Michael to purchase and hold the bond and mortgage in his own name on the ground of the supposed relation of Michael to him as agent. But conceding that the general answer of the infants is sufficient to enable their defense to be made if it existed, we think the referee has entirely misconceived the law growing out of the fiduciary relations of principal and agent. The proper forms having been observed, the assignment of the bond and moi’tgage to Michael was good at law; the title passed. In any case the assignment to him was not void but voidable in equity, at the election and upon the option of the supposed principal. There is a rule of equity which prohibits jaarties from taking advantage of a fiduciary relation to make profit to themselves, to the injury of the persons to whom they stand in such relation, provided such parties apply in season and seek to set aside the transaction or to claim the benefit of the advantage which the person who has violated his duty growing out of the relation has acquired. It is a rule of equity and not of law, and if an agent purchases property in violation of his fiduciary obligations, such purchase, though it may be avoided by his principal in a court of equity, yet is not void; and equity requires if a party claiming to be the equitable cestmi que trust seeks to repudiate the transaction, that he shall do equity by refunding the money which the agent has expended in making the purchase. (Harrington v. Brown, 5 Pick., 519; N. Y. Cent. Ins. Co. v. The Nat. Protection Ins. Co., 20 Barb., 468.)

A party holding a fiduciary relation which prevents him from purchasing on his own account, will not be permitted as against his cestui que trust to make a profit on such a purchase, but will be held to account on the basis of the sum actually paid by him; and the property purchased will, at the option of the cestm que -trust, be decreed to the latter, subject, however, to whatever amount the trustee has advanced out of his own funds in the purchase. (Van Epps v. Van Epps, 9 Paige, 237; Reed v. Warner, 5 id., 650; Smith, Recr., etc., v. Lansing, 22 N. Y., 520.)

We think that in this ease, even conceding Michael to have been such an agent of his father, Thomas O’Grady, as that he could not in equity have purchased and held the bond and mortgage in question in his own name and for his own benefit, yet that the purchase was good at law and the assignment valid for the amount which Michael advanced, and he was entitled to hold and enforce it for that amount, and that the referee has wholly mistaken the consequences of the act of purchasing the bond and mortgage in Michael’s own name and on his own account. Such title as Michael got by the assignment from the executors of Wilson he could transfer to Doyle, whether with or without consideration, no creditors intervening, and Doyle could transfer to the plaintiff in the same way. There would be no equity in holding that the land was discharged of the mortgage without any payment, and the plaintiff is entitled to hold and enforce the mortgage for the amount which Michael O’Grady paid to acquire title to the same, even if he stood in such a relation to the mortgagors that he was incapable of making any profit to himself by the transaction. We think, therefore, that the conclusion of the referee dismissing the complaint was erroneous.

The judgment is reversed and a new trial ordered before another referee, costs to abide the event.

Present — Mullin, P. J., Talcott and Smith, JJ.

Judgment reversed and new trial ordered before another referee, costs to abide the event.


text:
    JOHN MOSHER, Plaintiff, v. PLATT CARPENTER, Defendant.

      Forgery of negotiable paper — when person signing it is estopped from denying its genuineness.

    In 1874 a promissory note made by one George W. Carpenter, a son of the defendant, and indorsed by the latter, was transferred to one McKee, who stated to the defendant that he had transferred it to one Hamlin, and that Hamlin said he wished defendant had signed it on its face. Subsequently Hamlin saw the defendant, and the latter having agreed to sign the note on the face, Hamlin produced the note, now in suit, and defendant signed it as surety. Subsequently the note was transferred to other persons and purchased by the plaintiff before maturity, and in good faith. Upon the trial of this action, brought upon the note, it appeared that the note signed by defendant was not the note originally indorsed by him, but was a copy thereof, upon which the signatures and indorsements had been forged by McKee. Defendant interposes this as a defense, alleging that at the time of signing his name at Hamlin’s request, he made no examination of the note, because the face looked just like the one he had signed, and he supposed it was the same.

      Held, that the defendant having had full opportunity to examine the note as to its character and genuineness, and having failed so to do, preferring to rely upon the statements of McKee and Hamlin, he could not interpose such a defense in an action by one who purchased the same in good faith before maturity.
    Motion for a new trial on exceptions ordered to be beard in tbe first instance at tbe General Term, after a verdict directed for tbe defendant.

      Won. H. Soniih, for plaintiff.

      Henry JR. Selden, for defendant.
   Talcott, J.:

Tbis is a motion for a new trial by the plaintiff, after a verdict for tbe defendant at tbe Ontario Circuit, tbe exceptions being ordered to be beard at tbe General Term in tbe first instance.

Tbe action is brought upon a promissory note, signed by tbe defendant as surety for one George or George W. Carpenter, deceased, who was tbe son of tbe defendant, Platt Carpenter. Tbe signature was made under tbe following circumstances : George W. Carpenter had made a note for some indebtedness to one James McKee for $750. The note, as it appeared on the trial, was payable to James McKee or bearer, purported to be signed George Carpenter, Platt Carpenter, surety, and to be indorsed Platt Carpentei1, H. W. Hamlin and P. H. Hamlin, and also with a guaranty of collection by James McKee.

The following facts appeared in evidence : George or George "W. Carpenter, had made such a note to McKee in September, 1874, which the defendant had indorsed, and which, McKee informed the defendant, he was'going to negotiate to H. W. Hamlin. McKee afterwards informed the defendant that he (McKee) had seen Hamlin, and that Hamlin said he wished the defendant had signed it on the face, and that the way the defendant came to undersign the note as surety, was as follows: The defendant saw Hamlin at East Bloomfield after the note in suit had been passed by McKee to Hamlin, and the defendant then told him that McKee said he wished the defendant had signed the note on the face, and that he (the defendant) would as soon sign it on the face as on the bach. The two then went to the house of Hamlin, when Hamlin produced the note and a pen and ink and the defendant signed the note on the face as it appeared on the trial. The defendant testified that he did not make any examination of the note at the time, “ because the face looked just like the one he had signed, and he supposed it was the same.” This note in Hamlin’s possession must be assumed, from the verdict of the jury, to have been a forgery, both as to the signature of George Carpenter and the indorsement of defendant, and evidence was given upon the trial which warranted the jury in coming to the conclusion, that McKee had used the genuine note to fabricate several others which he had negotiated to different persons, and of which forgeries the note in suit was one, and had then absconded.

The defendant testified in his own behalf that the note in question was not the one he had indorsed. That he knew his son’s handwriting. That his son signed his name George W. Carpenter, and defendant never saw him sign his name without the middle letter. That the signature on the back of the note was not his (the defendant’s) genuine signature, and proceeded to point out several marks by which his genuine signature was distinguishable from the signature on the back of the note in suit. H. W. Hamlin transferred the note without consideration as a gift to his son, E. H. Hamlin, who indorsed and transferred it to the plaintiff for a full consideration, who received it before maturity, and in good faith. The jury must be taken to have found under the charge of the court, that the defendant was guilty of no negligence when he signed the note as surety after it had been transferred to Hamlin, and there was no evidence that either of the Hamlins had notice, while they held the note, but what it was, in all respects, a genuine note.

The question then arises whether, under such circumstances, a Iona fide holder for a valuable consideration, to whom the note was negotiated before maturity, can recover on it.

The defendant, by indorsing a note, impliedly contracts that it was, in truth, made by the j>arty by whom it purports to have been executed, and cannot deny the fact when sued on his indorsement. (Dalrymple v. Hillenbrand, 62 N. Y., 5.) But when the holder procures the indorsement of a forged note, with a knowledge of the forgery and upon a representation to the indorser that it is genuine, he cannot enforce it against the indorser, nor can a person who receives such a note after maturity or without consideration. (Turner v. Keller, 66 N. Y., 66.)

The warranty of genuineness applies to a person who signs the face of a note as a surety as well as to the indorser. His own signature is an implied assertion of the genuineness of those signatures which precede his upon the paper. (York Co. M. F. Ins. Co. v. Brooks et al., 51 Maine, 506; Chase v. Hathorn, 61 id. 505; Selser v. Brooks, 3 Ohio St. R., 302.)

Although the jury must be taken to have found that the defendant was guilty of no negligence when he signed the note as surety, after it came into the possession of the elder Hamlin, we do not think there was any evidence upon which the jury was justified in that conclusion. In the case of Whitney v. Snyder (2 Lansing, 477), decided in this department, the defendant, whose signature to a promissory note was obtained without his knowledge, could not read and was obliged to trust to the representations of the other party as to the nature and character of the instrument signed by him, but that case fully concedes that where the party sought to be charged, has knowingly signed and put in circulation an instrument known by him to be a negotiable security, he is bound to know that he is furnishing the means whereby third parties may be deceived and innocently led to part with their property on the face of his signature, and in ignorance of the true state of the facts.

Since the case of Whitney v. Snyder, that case, with some others, has been noticed by the Court of Appeals in the case of Chapman v. Rose (56 N. Y., 137), in which that court lays down the following rule: “Where one having the power to ascertain with certainty the exact obligation he is assuming, yet chooses to rely upon the statement of the person with whom he is dealing, and executes a negotiable instrument without reading or examination, as against a bona fide holder for value, he is bound by his act, and is estopped from claiming that he intended to sign an entirely different obligation, and that the statements upon which he relied were false. To avoid liability he must show that he was guilty of no laches or negligence in signing,” and the opinion goes upon the ground that there does not appear to have been any physical obstacle to the defendant reading the paper before he signed it; and alluding to the case of Whitney v. Snyder, Judge Johnson remarks that in that case the defendant was unable to read, which seems to have presented the physical obstacle which would, under some circumstances, excuse a party whose signature has been obtained without his knowledge to a negotiable security.

There was no obstacle of that nature here. The defendant could read, and borrowed a pair of spectacles on the occasion to examine the note which was presented to him. He signed his name directly under that of his son, whose pretended signature on-, the note omitted the middle capital letter, although the defendant says he had never seen his son write his name without the middle letter, and he was upon the trial able to point out several discrepancies between his son’s genuine signature and the signature on the face of the note, and his own genuine signature and the indorsement on the note in question. Hnder these circumstances we think the defendant was bound to know whether or not the note was a genuine note, and that he cannot defend upon the ground that he was ignorant of the character of the paper he signed, or that he chose to rely upon the representations, if any, of the party with whom he was dealing, or the statement of McKee that he intended to let Hamlin have the genuine note, but that he placed his name on a negotiable instrument, well knowing or having full opportunity to ascertain its character, and that, therefore, he is liable to a bona fide holder for value and before maturity. "When the plaintiff had shown himself to be a holder for value and before maturity, the onus of proving notice or want of good faith was thrown upon the defendant, and there seems to have been no evidence in the case upon which the jury would have been justified in finding that the plaintiff had any reason to suppose that the defendant had signed the note under any mistake of fact. We think, therefore, that the plaintiff was entitled to a verdict on the facts shown by the case.

New trial granted, costs to abide the event.

Present — Mullin, P. J., Talcott and Smith, JJ.

Ordered accordingly.


text:
    FRANCES STODDARD, Plaintiff, v. WILLIAM JOHNSON, Defendant.

      Legacies — when they an'e changed upon land, — liability of residuan'y legatees for payment of.

    A testator, by Ms will, bequeathed certain specific pecuniary legacies to persons therein named, and then proceeded, ‘' after the payment of my funeral expenses, the payment of my just debts and the payment of the legacies aforesaid, I give, devise and bequeath unto my son, William Johnson, all the rest and residue of my estate, real and personal, wherever the same may be situated.” Reid, that the legacies were charged upon the real estate, and the residuary legatee, by taking possession thereof under and by virtue of the will, became personally liable for the payment of the legacies without any express promise by him.
    Motion for a new trial on a case and exceptions, ordered to be heard in the first instance at the General Term, after a nonsuit directed at the Circuit.

      E. W. Gardner, for plaintiff.
    A will giving specific legacies, and then giving the real and personal estate after paying debts, without any direction as to the payment of the legacies, is a charge upon the real estate, where the personal property is shown not to be sufficient. {Flynn, v. Oroncken, 9 How. Pr., 214; Lwpton v. Lupton, 2 Johns. Ch., 614; Shutters v. Johnson, 38 Barb., 80 ; Farris v. Fly, 7 Paige Ch., 421; Reynolds v. Reynolds, 16 N. Y. [2 Smith] 259 and cases cited; Tracy v. Tracy, 15 Barb., 503.) The defendant having accepted the devise to him, charged as it was with the payment of these annuities and legacies, it is precisely the same as though the will had given him the ■ real estate and directed him to pay these legacies. {Kelsey v. Western, 2 N. Y. [2 Com]., 500 ; Gridley v. Gridley, 24 N. Y., 130, 134, 135 ; Speaker v. Van Alstyne, 18' Wend., 200; McLachlen v. McLachlm, 9 Paige Ch., 533 ; affirmed, 5 Denio, 646.)

      I). B. Prosser, for defendant.
   Talcott, J.:

This is a motion for a new trial after a nonsuit at the Yates County Circuit, and the exceptions ordered to the G-eneral Term'in the first instance.

Both plaintiff and defendant are children of Daniel Johnson, late of the said county, and the action is brought to recover of the defendant the interest upon a pecuniary legacy, left to the plaintiff by the will of her late father.

Daniel Johnson died in 1871, in the month of January, leaving a last will and testament, in which, after giving to his wife the use of his house and appurtenances, and various personal property, until the 1st day of April, 1875, and bequeathing to her absolutely certain specific legacies, he gave the plaintiff a pecuniary legacy in the following words: Third. I give and bequeath unto my daughter, Prances Stoddard, the use and income of the sum of two thousand dollars, to be paid to her annually, for and during the term of her natural lifetime, but such use and income not to commence until the first day of April, 1873. And I do hereby give .and bequeath the said sum of two thousand dollars unto the surviving children of my said daughter, after the termination of her life, in equal parts, share and share alike.”

The will then provides a legacy of the use and income of $2,000 unto Samaria Johnson, the daughter-in-law of the testator, with remainder, after her death, to her surviving children by his son George, in equal parts, share and share alike. The will then proceeds: “ Fifth. After the payment of my funeral expenses, the payment of my just debts, and the payment of the legacies aforesaid, I give, devise and bequeath unto my son, William Johnson, all the rest and residue of my estate, real and personal, wherever the same may be situated.

“ Sixthly. For the purpose of securing to my said daughter, Frances Stoddard, and the said Samaria, the wife of my son, George Johnson, the annuities hereinbefore given to them, respectively, and the bequests of the principal sums after the termination of their respective lives, I direct my executor, herein by me appointed, to securely invest upon unincumbered real estate of the value of at least double the amount, in his name as the executor of this my will, and that he receive and pay over to the said annuitants annually during the term of their lives, and 'the life of the longest liver of them, the said annuities as hereinbefore bequeathed to them respectively, and on the death of either, that he divide the principal sum of two thousand dollars among the surviving children aforesaid of the one so dying, in equal parts, and on the death of the longest liver of them, that he in like manner pay over to the surviving children the said principal sum of two thousand dollars in equal parts.”

The will then proceeds to constitute the said son of the testator, William Johnson, the executor of the said will.

At his death the testator was the possessor of a considerable amount of personal property, and was seized of a considerable real estate, consisting of several farms in the county of Yates and elsewhere.

The plaintiffs proved on the trial that the said William Johnson had taken possession of all the real and personal property of the testator under the provision of the said will. The complaint alleged the non-payment to the plaintiff of the annuity to her, or any part thereof, and claimed to recover the three installments thereof, due on the 1st of April, 1874, 1875, 1876, and the action is brought to charge the defendant personally with such payment.

The personal property of the testator, as appeared, was insufficient to pay the debts of the testator, and the question presented by the case is, whether the annuity was a charge upon the real estate, so that the defendant, by entering into the possession thereof Under and by virtue of tbe will, became personally liable for tbe payment of the legacy bequeathed by way of annuity to the plaintiff.

If a testator gives a legacy without specifying who shall pay it, or out of what funds it shall be paid, the legal presumption is, that he intended it should be paid out of his personal estate, and if that is not sufficient; the legacy fails. In this case, the testator does not, in terms, create an equitable charge upon the real estate devised to the defendant; but that is not necessary, as the charge of a legacy upon the real estate of a testator, either in aid or exoneration of the personalty, may be, and frequently is, created by implication only. In this case, as in other matters involving the construction of a will, the intention of the testator is the point to be sought fox-, and when discovex’ed, is all eontx’olling, provided it violate no rule of law. The real estate is not chax’ged with the payment of legacies unless the intention of the testator to that effect is expx’essly declared or cleaiiy to be infex'red from the language and disposition of the will. (Myers v. Eddy, 47 Barb., 263; Roman Catholic Church, etc., v. Wachter, 42 id., 43.) Looking at the whole fi’axne of the will in this case, it cannot be doubted but that the testator intended that the legacies of $2,000 each, to his daughter and daughtér-in-law, were to be charged on the lands which wex’e devised to the defendant under the name of residue, and .he having accepted such devise and entered into the possession of the property under the will, thex’eby assumed personally, the obligation of paying the legacies according to the terms of the will. But, by the terms of this will, according to the well-settled law, as laid down by Chancellor Kent in Lupton v. Lupton (2 Johns. Chan., 614), the legacies were, by express implication, charged upon the residue of the real estate devised to the defendant.

The case of Lupton v. Lupton has ever since it was decided been i’egarded as a leading authox-ity in such cases, and is x’efei’red to as such in all the cases on this subject in this State. It will be seen that the devise of the rest and x-esidue to the defendant does not take effect until after the funeral expenses and debts, and after “ the payment of the legacies aforesaid.”

In Lupton v. Lupton (supra) Chancellor Kent states the rule for the interpx’etation of the will in such a case as follows: “ When a testator devises the real estate after pavment of debts and legacies, as in Tompkins v. Tompkins (Proc. in Chan., 397), and in Shacross v. Fincler (3 Ves., 378), or where he devises real estate after a direction that debts and legacies be first paid, as in Hall v. Vernon (Proc. in Chan., 130), and in Williams v. Chitby (3 Ves., 545) the real estate has been held to be charged. It is not sufficient that debts and legacies are directed to be paid; that alone does not create the charge; but they must be directed to be first or previously paid or the devise declared to be made after they are paid.” (Lupton v. Lupton, supra, op. page, 623.)

See, also, Shultus v. Johnson (35 Barb., 80), where a legacy was held to be charged because spoken of as a “ residue,” when there was no other disposition of any real estate, although no words were used indicating that the legacy was to be paid before the devise of the residue took effect. It was held that the intention of the testator was that the legacy should be paid out of whatever property he should leave, and only the “residue” after such payment went to the devisee.

So, it has been held that when real and personal estate are mingled in one mass and so are devised to a residuary devisee and legatee, that in such case the legacies are charged on the realty. (Tracy v. Tracy, 15 Barb., 504.) So where the testator gave the “balance” of his estate after having given legacies (Roman Catholic Church v. Wachter et al., 42 Barb., 43), the legacies were held to be charged on real estate. See, also, Harris v. Fly et al. (7 Paige, 421); Lewis v. Darling (16 How. [U. S.], 1); Corwin v. Corwin (9 C. E. Green [N. J.], 579). Where legacies are charged upon real estate and the personalty is insufficient for their payment, as in this case, if the devisee accepts the devise under the will, such acceptance creates a personal liability, on which an action can be maintained without any express promise. (Gridley v. Gridley, 21 N. Y., 130.) So that, although there was some proof in this case that the defendant had repeatedly said that he meant to abide by the provisions of the will, such proof was unnecessary. The proof was full and clear that he had entered into the possession of the real estate, claiming under the will, and it is unconscionable as well as illegal on his part to refuse to pay the provision made for his sister, the plaintiff, while assuming to take and hold the property, wbicbwas only bestowed on bina on tbe condition that the plaintiffs annuity should be first paid.

A new trial is granted, costs to abide the event.

Present — Mullin, P. J., Talcott and Smith, JJ.

Ordered accordingly.