author: Andrews, J.

text:
    Jerome B. Wass, Resp’t, v. Benjamin F. Stephens, App’lt.

      (Court of Appeals,

      Filed June 23, 1891.)

    1. Malicious prosecution—Probable cause.
    The defendant had permission at the will of the Brooklyn Park Commissioners to connect a system of water pipes with their main. They withdrew their permission and directed plaintiff, one of their officers, to disconnect the system. Upon his doing so, defendant swore out a warrant without disclosing the fact that plaintiff -was acting under orders of the commissioners, upon which he was arrested and discharged. Held, that as there was evidence that the work of disconnecting was done in a proper manner, and so as to cause no unnecessary injury to the defendant’s pipes, there was no probable cause for the arrest.
    2. Same—Penal Code, § 639.
    The word “ wilfully ” in the statute means more than a voluntary act, and more also than an intentional act which in fact is wrongful. It includes the idea of an act intentionally done with a wrongful purpose, or with a design to injure another, or one committed out of mere wantonness or lawlessness.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment recovered in action for malicious prosecution.

      Wm. J. Gaynor, for app’lt; E. H. Kissam, for resp’t.

       Affirming 24 N. Y. State Rep., 695.

   Andrews, J.

The right of the park commissioners of Brooklyn to terminate their contract of May 5, 1885, with the defendant at any time, and thereupon to disconnect the water pipes of the defendant from the mains in Ocean Parkway belonging to the city and under the control of the commissioners, was by the contract dependent upon the failure or neglect of the defendant to furnish water according to his proposal, otherwise it could not be terminated and the water could not be cut off until six months after notice given by the commissioners of their election to terminate the agreement. On November 26, 1886, the commissioners caused a written notice to be served on the defendant that they had annulled the contract for the reason, as stated therein, that the defendant “ has not performed the conditions of the contract,” and the notice further advised the defendant that the commissioners were about to cut the connections, and notified him to protect his pipes and other property from any damage. It does not appear whether in fact the circumstances justified the commissioners in making an immediate disconnection under the terms of the contract. The commissioners thereupon by a written order dated November 27, 1886, directed the plaintiff, who was in their employment, to disconnect the pipes. While he was engaged in executing the order the defendant protested and threatened to jug him if he continued the work. He, however, completed it, and on the 1st of December, 1886, the defendant presented to a magistrate a verified complaint setting forth that the plaintiff and others on the 1st of December, 1886, “ did commit a misdemeanor, to wit, by maliciously and wilfully cutting the water main, the property of the Kings County Water Supply Company and Benjamin F. Stephens, in the town of Gravesend, Kings county, against the statute,” etc. The magistrate thereupon issued a warrant for the arrest of the plaintiff, upon which he was arrested and brought before the magistrate, and the proceeding was finally terminated by his discharge on the 26th of March, 1887. This is the prosecution upon which the present action is based.

It appears that the defendant when he made the complaint knew that the plaintiff in disconnecting the pipes was acting under the orders of his superior officers, the park commissioners. But the defendant did not disclose this fact in his complaint to the magistrate. When the plaintiff was brought before the magistrate the proceedings were adjourned, and, as appears from the testimony on the part of the plaintiff, the defendant insisted that the plaintiff should be “locked up.” There was evidence given tending to show that the work of disconnecting the pipes was done in a proper manner and so as to cause no unnecessary injury to the defendant’s pipes.

The court, on the trial, submitted to the jury the question of probable cause for instituting the prosecution before the magistrate, and also the question of malice. The jury found against the defendant on both questions, and it is now insisted that there was not only no evidence of the absence of probable cause, but that it affirmatively appeared upon the plaintiff’s own showing that there was probable cause for the arrest. The Penal Code, § 639, provides that “ any person who wilfully or maliciously displaces, removes, injures or destroys * * * 8. a pipe or main for conducting water or gas * * * is punishable by imprisonment for not more than two years.”- The complaint made by the defendant before the magistrate charged the plaintiff with an of-fence under this statute, and to sustain the present action it was incumbent upon the plaintiff, among other things, to give evidence showing, or from which the jury might find that the defendant had no probable cause for believing that the plaintiff had committed the crime charged. The action for malicious prosecution is very ancient. The law puts no direct restraint upon the institution by one person of a civil action or a criminal prosecution against another. He may put in motion the civil or criminal law at his pleasure for the enforcein ent of an alleged private right, or the punishment of an alleged public wrong. But if he acts from malice and institutes a groundless prosecution against another, either civil or criminal, the law affords to the injured party a remedy through an action for damages for malicious prosecution. The plaintiff, to maintain the action, must show that the prosecution was instigated by the defendant, that it has been determined in his favor, that there was no probable cause and that the defendant acted from malice.

The question of probable cause may be a question of law for the court or of fact for the jury, depending upon the circumstances. If the facts are undisputed and admit of but one inference, the question is one of law; if disputed, or if capable of opposing inferences, the question is for the jury. James v. Phelps, 11 A. & E., 483.

It is plain that the plaintiff committed no criminal offense in disconnecting the pipes. The work was done on the premises under the jurisdiction of the commissioners and by their direction. Whether or not the commissioners were justified under their contract with the defendant in directing the pipes to be disconnected, was a matter not within the knowledge of the plaintiff and with which he had no concern. He was bound to execute the orders of his superiors, so long as they required him to do nothing, in its nature criminal. H the commissioners violated their contract with the defendant, he had his remedy by action. When the defendant applied to the magistrate for a warrant, he was chargeable with knowledge that in obeying the directions of the. park commissioners the plaintiff had not “ maliciously and willfully” disconnected the pipes, as charged in his complaint He did not disclose to the magistrate the relation in which the plaintiff stood to the commissioners, or the circumstances under which he acted.

There was at least evidence to go to the jury upon both the question of probable cause and of malice. While it is true that what constitutes probable cause, where an arrest has been made, does not depend upon the question whether the offense has been actually committed, or upon the innocence of the accused, but upon the prosecutor’s belief of his guilt, based upon reasonable grounds, 4 Cush., 288; Fagnan v. Knox, 66 N. Y., 525, nevertheless, applying this test in this case, the jury were justified in their conclusion that the defendant had no reasonable ground for believing that the charge made by him was true.

The plaintiff intentionally disconnected the pipes, and it may be conceded by so doing violated a right of the defendant. But the word “ wilfully ” in the statute means something more than a voluntary act, and more also than an intentional act which in fact is wrongful. It includes the idea of an act intentionally done with a wrongful purpose, or with a design to injure another, or one committed out of mere wantoness or lawlessness.

Our attention has been called to the case of Anderson v. How, 116 N. Y., 336 ; 26 N. Y. State Rep., 787, as justifying a broader interpretation. There is some color for this claim in some remarks in the prevailing opinion, but as we understand the case the judgment proceeded on the ground that upon the evidence the existence of probable cause was proved, in that the act for which the plaintifE was arrested, was wanton and malicious.

We find no error in the record and the. judgment should be affirmed.

All concur, except Finch, J., absent.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In the Matter of the Petition of Thomas C. Martin, Resp’t, v. The W. J. Johnson Co., Limited, App’lt.

      (Court of Appeals,

      Filed June 23, 1891.)

    Mandamus—Appeal.
    Where the special term has granted a writ of mandamus with costs, and upon a stay being denied defendant complies with the writ, pays costs and appeals to the general term, that court must hear the case upon the merits and it is error for it to dismiss the appeal on the ground that it was not a practical question.
    Appeal from judgment of the supreme court, general term, first department, dismissing appeal from order granting writ of mandamus, requiring defendant to allow an examination of its books.

      Mason F. Prosser, for app’lt; Arthur H. Masten, for resp’t.

       Reversing 36 N. Y. State Rep., 531.

   Per Curiam.

The special term granted the writ, with costs.

The defendant asked for a stay pending an appeal, which was denied. It then complied with the writ and paid the costs, and appealed to the general term. That court dismissed the appeal on the ground that it was not a practical question, as the terms of the writ of mandamus had been complied with.

The court should have heard the case on the merits, because there was a question of costs which defendant had paid, and which it would be entitled to have restored to it, in case the order were reversed.

Order of general term reversed, and case remitted to that court, with directions to hear the appeal upon the merits, with costs of this court upon this appeal to appellant, to abide the event of the appeal to the general term.

All concur, except Finch, J., absent


text:
    The People, Resp’ts, v. John Dewey, App’lt.

      (Court of Appeals,

      Filed June 23, 1891.)

    Appeal—Court of appeals—Stipulation.
    This court cannot base a reversal upon matter brought into the case by stipulation made subsequent to the judgment of the general term. The parties cannot agree upon a case and submit it to this court for decision.

      Appeal from judgment of the supreme court, general term, fifth department, affirming conviction of defendant for selling lottery policies.

      Tracy C. Becker, for app’lt; George C. Quinby, for resp’ts.

       Affirming 33 N. Y. State Rep., 437.

   Per Curiam.

The stipulation which we find in the printed case, made by the parties after the decision of the general term, cannot be considered upon this appeal. It is no part of the record. The case must be heard here upon the same record which was before the general term. The parties cannot agree upon .a case and submit it to this court for decision This is purely a court of review, and we consider only errors alleged to have been committed by the court below. We cannot base a reversal of the judgment appealed from upon matter subsequently brought into the case by stipulation. Therefore, disregarding the stipulation, we see no reason to doubt that the judgment of the general term is right, and it must be affirmed upon the opinion there pronounced.

All concur, except Finch, J., absent.


author: Daniels, J.

text:
    Jacob D. Nordlinger et al., App’lts, v. Hollins McKim et al. Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed May 15, 1891.)

    1. Pleading—Sham and irrelevant allegations in answer.
    Where the allegations of an answer are relevant to the issue and create material inquiries to be settled by the trial, they cannot be stricken out as sham or irrelevant, nor as redundant, although needlessly repeated and elaborated.
    2. Same.
    The court will not interfere with a pleading unless it is plain that the party complaining will be prejudiced in his case by allowing the pleading to remain uncorrected.
    Appeal from order denying motion to strike out parts of the answer of the defendants.

      W. N. Cohen, for app’lts; J. Aspinwall Hodge, Jr., for resp’ts.
   Daniels, J.

The action is brought to recover money alleged to have been received by the defendants, on checks owned by the plaintiffs and collected by means of the fraudulent and forged endorsement of their names upon them. The defendants by their answer have denied the material allegations of the complaint. And to their denials have added other allegations which were included in the motion. These allegations aver that the endorsements were made by a person in the plaintiffs’ employment, whom they retained after they became aware that he was unreliable and untrustworthy, and that it was attributable to their own conduct that he was able to make use of the checks and allow the money to be collected upon them. These statements, it is true, have been unnecessarily, and it may be added, improperly elaborated, extended and repeated, but they are nevertheless relevant to the, issue, and created material enquiries to be settled by the trial. And so far they cannot be stricken out, either as sham or irrelvant, under §§ 538 and 546 of the Code of Civil Procedure.

It certainly cannot be said that they do not present the semblance of a defense, although they have been needlessly repeated, and where that cannot be held, they cannot be stricken out Walter v. Fowler, 85 N. Y., 621. They might without detriment to the defendants be very much reduced in bulk, but that it is not the office of the general term to do. On the contrary, it is the practice not to interfere, unless it is plain that the party complaining will be prejudiced in his case by allowing the pleading to remain uncorrected. Lugar v. Byrnes, 15 Civ. Pro., 72; 15 N. Y. State Rep., 970. And that the plaintiffs will be so prejudiced by these extended and minute statements, does not appear.

If the third, fourth and fifth subdivisions of the answer present no defense, the regular mode for contesting them is by the service of a demurrer, and not by way of this motion. But that probably could not be maintained, for there are facts in each decision alleged, which, if proven, may prevent the plaintiff from succeeding in the action.

The sixth subdivision of the answer rests upon the conduct of the plaintiffs after their alleged discovery of the misconduct of their bookkeeper and cashier, by which it is averred that the defendants have been deprived of their right to resort to him for indemnity in case of loss accruing to them by reason of his acts, and by which they obtained satisfaction for the loss they encountered through his misconduct It cannot be now held that this part of the answer discloses no defense, although much more has been stated than was requisite for this purpose. That is the entire fault of the answer. For while facts are alleged that are material and necessary to the defense, far too much has been said to color and comment upon them to be consistent with the clearness and conciseness of pleadings in legal actions. At the same time the plaintiffs have been deprived of none of their rights by this unjustifiable waste of words. The order should be affirmed, but without costs to the respondents.

Van Brunt, P. J., concurs.


text:
    John Parker et al., Ex’rs, App’lts, v. Mark Lythgoe et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed May 15, 1891.)

    1. Restitution—Judgment.
    Whether restitution shall he ordered on the vacation of a judgment is discretionary with the court
    2. Same.
    Where the effect of executing a writ of assistance issued upon a judgment in an action brought by executors for the construction of a will has been to permit the devisee of an undivided third of the real estate to collect the rents of not very productive property for himself and persons found to be the heirs of the testator, and there is great doubt whether another claimant will establish her right to any part thereof, and it appears that the executors are aged men of doubtful responsibility, and the objects for which they were empowered by the will to collect the rents have been satisfied, Held, that a refusal to award restitution to the executors was a proper exercise of discretion.

      Motion for restitution on vacation of judgment
    For former reports of this case see 36 N. Y. State Rep., 564, 844, 981.

      Isaac N. Miller, for pl’ffs; P. & D. Mitchell, for def ts.
   Per Curiam.

Both the judgment and the addition made to it after its recovery have been vacated, and the authority under which the writ of assistance was issued has thereby been vacated. But the court is not on that account required to award restitution to the plaintiffs; whether it shall be ordered or not, has been made discretionary in the court. Code Civ. Pro., §§ 1005, 1292, 1323. And the object of rendering it dependent on discretion was to control its exercise by circumstances indicating the justice or propriety of it The effect of executing the writ in this instance' has been to permit the devisee of an undivided .third of the real estate to collect the rents of the tenants in possession of two parcels of not very productive, or valuable real estate, for the benefit of himself and three other persons who have been found by the court as the result of a trial, to be heirs of the testator. Another claimant may be proven to be a devisee of a third of the property, but that appears to be by no means certain. If she shall be, then a proportionate part of these rents will be payable to her. But from the ineffectual efforts which were heretofore made to discover whether that person is in fact living, and from the statements made in the deposition of the individual claiming to be that person, there is great room for doubting whether she will establish her right to any part of these rents.

The plaintiffs, who are the executors, are aged men, of doubtful responsibility, and the objects for which they were empowered by the will to collect the rents have been satisfied. They were given no right of possession or control for any other or different end. And as their authority has been exhausted, and there will be danger that the rents hereafter accruing will be lost if they are permitted to be received by them, there is a striking impropriety in the way of restoring them to the position in which they could continue to collect these rents. Indeed, it may well be doubted whether the court could allow that to be done, since their power of collection under the will has ceased to exist.

The devisee of one-third of the property is acting for himself and the heirs of the testator, and may consistently be entrusted with these rents on his own and their account. There will be much less danger of the rents being diverted from the persons ultimately entitled to their probable enjoyment by allowing their collection by this devisee. And, in this state of facts, it would not be a discreet or just exercise of this discretionary power of restitution to subject the property to the further control of these executors. The motion for restitution should, for these reasons, be denied, and an order should be made directing the devisee to deposit the rents over and above necessary expenditures for taxes, repairs and insurance and commissions for collection, with the chamberlain, subject to further order of this court

Yan Brunt, P. J., and Daniels, J., concur.


text:
    In the Matter of the Petition of Matilda and Louisa Myers for an Allowance, etc.

      (Supreme Court, General Term, First Department,

      Filed May 15, 1891.)

    Executors and administrators—Interest.
    The executors allowed $180,000 of the assets to remain in a firm formed by the surviving partner of the testator, who was also one of the executors. A large portion of these assets were used in the business of said firm, for which it received six per cent interest from its customers, but about $19,000 was in securities which produced no income, and about $4,000 worth had been sold and the proceeds used to pay debts of the testator. Feld, that the executors were chargeable with six per cent interest on $157,000.
    Reargument of appeals from orders or decrees of the surrogate of the county of New York, overruling exceptions to, and confirming the report of a referee.

      Edgar M. Johnson, for app’lts; George M. Thomson, for resp’ts.

       Modifying 33 N. Y. State Rep., 977.

   Daniels, J.

These appeals have already been considered by this court, and the result which was then believed to be warranted appears from the case as it has been reported in 38 N. Y. State Rep., 977. It was then held that the amount of the estate on which the executors should pay six per cent interest, should be $154,458.08 instead of $180,000 adopted by the referee. The counsel for the respondents strenuously insisted after the decision had been announced that this reduction had arisen out of a misapprehension of the evidence. And it was then concluded to rehear and further consider the case. That has now been done, and the case has been examined again, but without discovery that this conclusion was substantially out of the way.

It is true that the acting executor has sworn that the balance of $180,921.22 stood to the credit of the deceased testator’s estate in.the books of the new firm, and would be accounted for as his estate. But he did not testify that this sum represented so much capital, or money used, or employed in the newly formed firm. And the account contained in the case, as well as his evidence, which was the proof acted upon by the referee, exhibits the fact to be that it was in part made up of securities from which it does not appear that any income whatever had been derived. And he testified directly that the $30,000 for 300 shares of the Sloss Iron & Steel Company, which were appraised at the sum of $18,000 and at that amount formed part of the $180,921.22 paid no income at all. His answer was : “ There has been no' income from it” And he also answered as to the Graphic stock, in like manner entering into the appraisal at the sum of $1,000, that “ we have had no income from it at all.”

These two items reduce the general result of the appraisement and the credits to the sum of $161,000 instead of $180,000 adopted by the referee. And it does not appear that any advantage whatever was derived from them, for which the executors could be'. legally charged with interest. And it is very probable that other securities were equally unproductive, and for that reason presented no legal basis for the allowance, or support of the interest charges, made by the referee. This view is directly confirmed by the evidence given concerning what has been mentioned as the I. E. and bond accounts. As to the former there is some confusion in the evidence m its reference to the securities of that account, and the advantages actually derived from the account itself, by the new firm, which was permitted by the executors to use the moneys of the estate. But the witness, by his evidence, has so far distinguished between the securities and the available capital of that account as to place the interest of the estate in it at the sum of $120,825.45, while it was credited in the appraisement at $96,660.36. As to that the same witness testified, “ We had this account. That represented money invested in a speculative account in the business. That money was used to carry the securities in the business at that time. Those were the securities that were being speculated in by every customer. Instead of borrowing that amount of money, we used that to carry these securities.” He added further, that they “ were no longer carrying securities for customers in the old firm." And “ the customers were charged six per cent; that is, somebody had to pay six per cent for the money that was used.” He also testified that “we charge customers interest on the money we have used for carrying for them; we charge six per cent." And he thought all the customers to be good. This evidence, which was not otherwise qualified, but was corroborated by the witness Gould, who stated that Rutherford had that money, did justify the interest charge of six per cent, to the extent of this sum of $120,825.45, and so far sustains the conclusion of the referee.

There was also a bond account, as it has been called in the appraisal, which the witness testified had been created prior to the decease of the testator, and which, at the time of his decease, exhibited a balance of $36,192.40. This originated in a loan of $33,347.83, made by him in his lifetime, and returned interest at the rate of six per cent. This interest was received by this firm, which the executors permitted to collect and use it, and for that they were legally charged by the referee. A charge of $3,786.41 was made against the credit in the appraisal, but its propriety does not seem to be maintained by the evidence of the executor, whose testimony has been chiefly depended upon in the decision of the case by the referee. And it therefore seems to be entirely fair, to charge the executors with interest on this sum of $36,192.40 for the interest added in the account to the principal loaned, and interest collected, from time to time, and permitted by them to be used by the new firm. There were other loans made, but it seems probable that the money was a part of the I. R. account, and, therefore, not increasing the amount of money used, or the interest collected by the firm. And it does not appear that there were any other sources from which interest could be or was obtained, than the two which have already been mentioned. The other items consist of securities, upon none of which was it shown that dividends were paid. And as a large part of them were appraised at no more than a nominal value, it is altogether probable that they yielded no revenue in any form or shape. Some of the securities are stated by this witness, and also by Mr. Baring Gould, another of the executors, to have been sold, and the proceeds used to pay the debts of the testator. And the amount of these added to the §19,000, which Mr. Butherford testified produced no income, will reduce the inventory to nearly the amount already directed as the aggregate, on which six per cent interest should be charged. And nearly the same result is also reached by adding to the money in the I. B. account, the loan and interest upon it of $36,192 40, which this witness testified represented cash.

The results maintained by these two sources justify the conclusion that the firm received, and the executors should be charged with, six per cent interest upon the aggregate sum of $157,017.85, which is an increase of $2,559.77 over the aggregate sum on which interest was directed to be computed when the decision herein was first announced.

It is stated in the argument of the respondents’ counsel that one of the beneficiaries in the trust created by the will, is deceased. If that is the fact then an ample fund has been discharged from the trust, out of which the costs may be obtained. And there can be no necessity for the further consideration of their payment.

But the decree should be modified by directing the interest to be computed at the rate of six per cent upon the sum of $157,-017.85 and divided on that basis, after deducting the payments already made on account of interest under the orders of the surrogate or otherwise. And as so modified the decrees should be affirmed, without costs of the appeals.

Van Brunt, P. J., concurs.


author: Van Brunt, P. J.

text:
    The People ex rel. William E. Demarest, App’lt, v. John J. Gorman, Sheriff, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 15, 1891.)

    Execution—Irregular judgment.
    An irregularity in the form of a judgment rendered by a court of competent jurisdiction does not render invalid an execution issued thereon which contains the recitals required by the Code, and such irregularity cannot be taken advantage of on habeas corpus proceedings.
    Appeal from order of special term, dismissing writ of habeas corpus.

      G. H. Smith, for app’lt; W. F. Severance, for resp’t.
   Van Brunt, P. J.

It is claimed by the appellant that the execution upon which he was arrested is void upon its face.

The only papers presented to the court are the writ of habeas corpus and the return of the sheriff containing the execution under which he claims to hold the defendant

It is urged that the court not having, the power to enter a judgment in the form described in the execution, therefore such execution is void on its face and insufficient to hold the relator upon the ground that as no liability attaches against the appellant as guardian ad litem except for costs awarded against the infant plaintiff, and as the judgment is not described as being for costs, the execution is void and insufficient to hold the relator, because if the judgmeút is for costs it is not intelligibly described in the execution, which § 1306 of the Code provides must be done.

This proposition assumes facts which are in no way established before the court The execution contains all the recitals required by the Code; and if there is any irregularity in the judgment it appears from the judgment, and not from the execution, and such judgment is not before the court, and if it were, such irregularity could not be availed of upon these proceedings. If the judgment is in a form unauthorized by the Code, the proper course to be pursued would be by motion to have the judgment corrected.

It is conceded that the party under arrest is liable for the judgment described in the execution, but because the judgment is irregular in form that therefore the execution is void. This is by no means the rule.

The court of common pleas, in which the judgment was entered, had jurisdiction of the subject matter and the parties, and having such jurisdiction, whatever irregularities it may .have committed must be corrected in that court and cannot be availed of in this summary way.

We think, therefore, that the order appealed from was correct, and should be affirmed, with ten dollars costs and disbursements.

Daniels, J., concurs.


author: Lawrence, J.

text:
    Isaac L. Lyons, App’lt, v. The Atlanta Hill Gold Mining & Milling Co., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 15, 1891.)

    1. Receiver— Corporation—Accounting.
    A receiver of a corporation will not be compelled to account where it appears that no property of the corporation has come into his hands.
    2. Same.
    A judgment was recovered by the corporation which it assigned in payment of an indebtedness before the appointment of the receiver. Held, that even if it could be assumed that the corporation was insolvent when it made the assignment, yet as it had parted with all title to the judgment before the receiver was appointed, no property in such judgment vested in him.
    Appeal from an order made at chambers denying plaintiff’s application to compel Charles W. Turner, receiver of the defendant to file an account of his proceedings as receiver, and denying plaintiff’s application for the appointment of a referen

      Raphael J. Moses, Jr., for app’lt; Salter S. Clark, for resp’t.
   Lawrence, J.

In this case we are of the opinion that the motion below was properly denied.

It appears from the record that the receiver was appointed on the 27th of June, 1888, and that he never knew anything about the action by the company against Andrews until the 27th of March, 1890, when he was notified by the appellant’s attorney of the decision of the court of appeals in the case of the Atlanta Hill Gold Mining & Milling Co. v. Andrews.

It also appears that the judgment had been assigned to Chapin ion the 1st of June, 1888, and that the assignment had been filed on the 20th of June, 1888, before the appointment of Mr. Turner ;as receiver.

The attorney for the company in October, 1887, had made a special contract with the company for his fees and expenses in conducting the litigation, and on the 27th of March, 1890, when judgment had been collected, there remained over and above his fees and expenses, the sum of $738.15 which was received by Chapin under his assignment. It cannot be disputed upon the record that the company at the time of the assignment of the judgment to Chapin was indebted to him in a large amount for moneys advanced upon the bonds of the said company, nor is there anything to show that the indebtedness to Chapin was not fairly and honestly contracted. We cannot assume that the company was insolvent at the time that it made the assignment to Chapin but even if that fact is assumed, as the company had parted with all title to the judgment before the appointment of a receiver, no property in such judgment vested in him. Whitney v. N. Y. & Atlantic Railway Co., 32 Hun, 173 ; Dudley v. Gould, 6 id., 97.

It would, of course, be competent for the receiver by permission of the court to have brought an action for the purpose of attacking the validity of the assignment on the ground that it was made in contemplation of insolvency. 2 E. S., § 4, p. 1534 ; Banks 7th ed. But this proceeding is not instituted to compel the receiver to bring such an action. It is a proceeding to compel the receiver to account, and as it is not even suggested that the receiver has ever had in his possession any portion of the proceeds of the judgment recovered by the Atlanta Hill Gold Mining and Milling Co. against Andrews or any property whatever yf said company, we agree with the learned justice who heard the case below, that as there is absolutely nothing to account for the court should not authorize a useless and expensive ceremony.

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

Van Brunt, P. X, and Daniels, J., concur.


text:
    In the Matter of George W. McLean, Rec’r of Taxes, Resp’t, v. The Couper Milling Co., App’lt.

      (Supreme Court, General Term, First Department,

      May 15, 1891.)

    Taxes—Corporations—Place op business.
    An affidavit of the president of a corporation denying that its place of business was in the city of New York and stating that Tarry town was designated in its certificate of incorporation as its place of business, is wholly discredited by its return to the commissioners of taxes stating that the place of transacting its financial business was at a certain place in said city. In such case the court is authorized to hold that its place of business for the purpose of taxation is in said city.

      Appeal from an order imposing a fine upon the Couper Milling Company for the failure to pay a personal tax imposed upon it.

      Sutherland Tenney, for app’lt; John G. H. Meyers, for resp’t.
   Daniels, J.

The petition upon which the proceeding was commenced sets forth the assessment of the personal property of the company and the extension of a tax on the basis of the assessments. It is also stated that the necessary publications of notices were made, resulting in the final confirmation of the tax as it has since been permitted to stand. And after its confirmation was made by the board of aldermen, and the roll was returned to the receiver of taxes with a warrant for their collection, notices thereof were stated to have been regularly published, and that thereafter the other notices required to be given were in like manner published. It was also averred that the receiver had caused payment of this tax to be demanded, and that the marshal having the warrant for its collection had also demanded their payment from the company and that it had been refused. The proceedings as they are set forth in the petition seem to have complied with the law, and they were not controverted on the part of the company.

But payment of the tax was resisted, and the application was opposed on the statement contained in the affidavit of the president of the company, denying the allegation contained in the petition: “ That in the year 1889, The Couper Milling Company was a moneyed or stock corporation, having its principal office, or place for transacting its financial concerns, in the city of New York.” And it was added, that Tarrytown, in the county of Westchester, is designated in the certificate of incorporation as the place of business of the company, and the functions of the company have been carried on there.

But, as a matter of fact, this statement was overcome in its effect by the sworn statement of the same person, who, in his return to the commissioners of taxes and assessments, stated that the principal office, or the place of transacting the financial business of the said corporation, is situated in the - ward of the city of New York, at No. 24 Manhattan Market street, West Thirty-fourth street.” This wholly discredited the affidavit made by him, and justified the court in believing that to be the principal office for transacting the financial business of the company, and in imposing the fine mentioned in the order for the non-payment of the tax. That was the only contested fact on the hearing, and in this condition of the proofs it was required to be determined in favor of the receiver.

The order should be affirmed; but as one of the statements was left incomplete in the petition, which, on account of the importance of the proceedings, ought to have been more carefully drawn, it should be without costs.

Van Brunt, P. J., concurs.


text:
    The Pittsfield National Bank, App’lt, v. William H. Tailer, Impl’d, Resp’t.

      (Supreme Court, General Term, First Deportment,

      Filed May 15, 1891.)

    Pleading—Complaint—Assignment fob creditors.
    A complaint in an action to set aside an assignment for creditors, which alleges that such assignment is null and void on its face, and also that it was made with intent to hinder, delay and defraud the creditors of the assignors, contains but one cause of action, and such statements cannot be required to be separately stated and numbered.
    Appeal from an order directing the complaint to be amended by separately stating two causes of action.

      John J. Adams, for app’lt; Edward B. Whitney, for resp’t.
   Daniels, J.

The final obect of this action is to set aside a general assignment made by the firm of Boss, Campbell & Co. to the defendant, Tailer, for the benefit of their creditors. The plaintiff is a judgment creditor of the firm, whose execution against their property has been returned unsatisfied. In support of the action it is alleged in the complaint that the assignment is null and void on its face, and also that it was made with the intent to hinder, delay and defraud the creditors of the assignors, including the plaintiff. And it was for the reason alone that it contained these two statements that the motion was made and sustained, that it should be divided into two causes of action.

But the sole object of the action is to set aside the assignment and to permit the plaintiff to satisfy its debt out of the property and assets of the firm. And these allegations were appropriate to sustain its right to that relief. There was but one cause of action, and these charges were made only for the purpose of supporting it. For that object the plaintiff is not confined to one ground of objection, but whatever objections there may be of this general description can consistently be combined to attain the final end expected to be secured.

This principle was sustained in an action of this description in Durant v. Pierson, 29 N. Y. State Rep., 510, where it was also held that the objection that the assignment was void upon its face could be taken under the general allegation that it was made to hinder and defraud creditors. And that resulted from the conclusion necessarily, that the allegation that it was void upon its face, was not of itself a distinct and separate cause of action from the allegation that the assignment proceeded from the fraudulent intent of the assignors. And that setting forth different grounds supporting the defendant’s liability for the same transaction was not the statement of different causes of action was also held in Walters v. Continental Ins. Co., 5 Hun, 343. And Merchants' Bk. v. Thalheimer, 23 W. Dig., 116, also supports this view. So does Henderson v. Henderson, 44 Hun, 420; 9 N. Y. State Rep., 356, and Barnes v. Jones, 16 Hun, 191.

The cases of Stowell v. Chamberlain, 60 N. Y., 272, and Bell v. Merrifield, 109 id., 202; 14 N. Y. State Rep., 796, bear no possible relation to this subject. The effect of preceding actions and judgments upon the controversies then before the court, being what was considered and decided in them. While in Wiles v. Suydam, 64 N. Y., 173, two distinct and separate grounds of liability affecting the defendant in two different capacities, and under different sections of the statute, were what was held to present two causes of action. The case is plainly distinguishable from this, in which the object to be attained is to set aside one written instrument. And Longprey v. Yates, 31 Hun, 432, is still more remote from the present controversy.

The plaintiff assails this assignment as being made in violation of the protection afforded by statute to the rights of creditors. And in support of its action it was entitled to specify the entire fraud which it was alleged had been perpetrated in the creation of the instrument.

In this complaint no more than that has been attempted. And within Marx v. Toiler, 12 Civ. Pro., 226; 9 N. Y. State Rep., 22, as well as the other authorities previously mentioned, that presented but one cause of action. The order, therefore, should not have been made, and it should be reversed, with ten dollars costs and the disbursements, and the motion denied.

Van Brunt P. J., concurs.


text:
    The People ex rel. William S. Taylor, v. Charles P. MacLean et al., Com’rs.

      (Supreme Court, General Term, Fourth Department,

      Filed May 15, 1891.)

    Municipal corporatons—Police—Removal.
    Relator was dismissed for entering a saloon on Sunday and receiving mopey from the proprietor for not arresting him. The complainant testified positively to the facts and was contradicted hy relator. Held,, that it was for the commissioners to determine what weight should he given to relator’s testimony, he being an interested party, and that there was no such improbabilhy affecting the correctness of their conclusion as to justify setting it aside.
    Writ of certiorari to review the dismissal of the relator from the police force of the city of New York.

      John M. Tierney, for relator ; John J. Delaney and Cornelius F. Collins, for commissioners.
   Daniels, J.

The relator, who was a patrolman on the police force, was charged with entering the liquor saloon of James F. Mulligan, on Sunday afternoon of the 20th of April, 1890, and there receiving five dollars from him as a remuneration for not' arresting him. And in support of the writ the position is taken that the commissioners were not sustained by the evidence in their conclusion that the charge had been sustained. But the evidence of Mulligan was direct and positive that the charge was true. That was denied by the relator, who in his evidence contradicted the material statements made by Mulligan, and also added that the complaint was caused by resentment for arrests previously made by the officer of disorderly persons who had come from and were near the saloon. Which of these two persons was the most to be relied upon in their statements was an inquiry more within the province of the commissioner who took their evidence and observed their demeanor and manner of testifying, and repeated it to the other commissioners and himself voted for the removal of the relator, than it can be within that of the court upon the return to this writ. The other members of the board would naturally be very much guided by the effect made by the evidence on the mind of the commissioner who took it, and that was unfavorable to the relator. He had been impressed by the personal appearance of these persons, had observed their conduct, and considered their motives in the proceeding. And in support of the view which was the result of the hearing, Mulligan was sustained in the probable truth of his evidence by the circumstances which he detailed, and which could hardly have been invented by him, to give effect to his statements implicating the relator. His relation, of what were stated as the facts, was consistent throughout. While the relator was contradicted by the witness Peter Yule, who testified that he at first denied having been in Mulligan’s saloon on Sunday, when he testified he was there, in the course of his own evidence. The relator was, also, the interested party and for that reason whether his evidence should be accepted as truthful or not, was for the commissioners to decide. Honegger v. Wettstein, 94 N. Y., 253, 261.

As the. evidence was produced it was for them to decide what weight it ought to have as it is in similar conflicts in actions for the jury to determine its truth. And there is no such improbablity affecting the correctness of their conclusion as will justify this court in setting it asida

It was a case within their control for its disposition, and their order dismissing the relator should be affirmed, with costs.

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


text:
    James B. Titman, Adm’r, et al., Resp’ts, v. The Mayor, etc., of New York, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 15, 1891.)

    Sheriffs—Mileage—Laws 1890, Chap. 523.
    Chapter 523, Laws 1890, provides a general scheme in relation to the fees of the sheriff of New York, and impliedly repeals that portion of subd. 6 of § 8307 of the Code which allows the sheriff mileage on executions.
    Appeal from an order made at special term denying defendants’ motion to review the taxation of the clerk in striking from defendants’ bill of costs, the item of sheriff’s mileage.

      William H. Clark and Terence Farley, for app’lt; L. Laftin Kellogg, for resp’ts.
   Lawrence, J.

Upon the taxation of costs by the clerk, it was claimed, .that the defendants were entitled to charge mileage for the sheriff, on the execution at the rate of ten cents per mile.

The clerk on objection struck out the item, which adjustment was sustained on appeal to the special term. The defendants claim the right to tax mileage for the sheriff under subd. 6, of § 3307 of the Code of Civil Procedure, which provides, that the sheriff shall be entitled to charge, “ for mileage upon an execution for each mile going only, ten cents to be computed as prescribed in subd. 1st of this section.” By chap. 523 of the Laws of 1890, entitled, “ An act in relation to the office of sheriff of the city and county of New York,” it is provided, subd. 6 of § 17, that the sheriff is entitled, “ For receiving an execution against property, entering it in his books, searching for property and postage on the return, when made through the post office, one dollar and fifty cents.- If required by the sheriff, that fee, together with his fee for the return of the execution, must be paid by the person, in whose behalf the execution is issued, at the time when it is delivered to the sheriff, who is not bound to execute it, unless the fee is paid.”

That act with great minuteness and detail specifies the fees which the sheriff of the city and county of New York shall be entitled to receive for the rendition of different services, and in referring to the fees which the sheriff is entitled to receive upon an execution it omits all reference to mileage.

By its twenty-third section it repeals all acts and parts of acts inconsistent therewith. We are of the opinion that the act is to be construed as providing for the fees of the sheriff of the city and county of New York, as an entirety, and that it is to be regarded as having repealed by implication that part of subdivision 6 of § 3307 of the Code of Civil Procedure, which allows the sheriff for mileage on executions.

In other words the act provides a general scheme in relation to the fees of the sheriff of the city and county of New York independently of and uncontrolled by the general provisions of the Code of Civil Procedure in relation to the fees of sheriffs.

We think this is entirely clear when a comparison is instituted between the 16th subdivision of § 17 of the act of 1890 and the twenty-one subdivisions of § 3307 of the Code of Civil Procedure,

The two sections will be found to relate mainly to-the same services, and the fees for performing the same are as distinctly specified in the act of 1890 as in the general provisions of the Code.

The taxation of the clerk was right, and the order below should be affirmed, with ten dollars costs and disbursements.

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


author: Parker, J.

text:
    Katharine A. Anderson, Executrix, Resp’t, v. Weeks W. Culver et al., App’lts.

      (Court of Appeals, Second Division,

      Filed June 23, 1891.)

    Mortgage—Foreclosure—Payment—Presumption—Possession or .bond.
    In an action to foreclose a mortgage, the parties in possession of the premises produced the bond, but failed to produce the mortgage or satisfaction piece, and there were no endorsements of payments on the bond, which was evidently mutilated, and no explanation was made by defendants, either as to that or as to the change made in the answer, which made it appear that the payment was made to some one other than the plaintiff. Held, the inference of payment was rebutted by the circumstances surrounding the possession of the bond.
    Appeal from a judgment of the general term of the supreme court, second department, entered on an order affirming a judgment of foreclosure and sale, granted at special term.

      Alfred Jaretski, for app’lts; Joseph Larocque, for resp’t.

       Affirming 25 N. Y. State Rep., 314.

   Parker, J.

This appeal "brings up for review a judgment of foreclosure and sale. The complaint averred the making, execution and delivery of a bond and mortgage by the defendant Culver to the plaintiff; a subsequent conveyance of the mortgaged premises by Culver to the defendants Thompson and Norris; their assumption of payment of the sum secured by the mortgage, and the omission of defendants to comply with the condition of payment.

The answers of the several defendants did not deny the allegations of the complaint respecting the execution and delivery of the bond and mortgage; indeed, that of Thompson and Norris expressly admitted the fact as averred; but alleged as a defense that the bond had been fully paid and satisfied. The case coming on for trial, plaintiff’s counsel stated that the plaintiff only demanded interest from July 1, 1888, instead of January 1, 1886, as claimed in the complaint, and rested.

A motion was .thereupon made to dismiss the complaint, and .the exception taken to the denial of that motion is assigned for error on this review. In support of such contention the appellant cites Bergen v. Urbahn, 83 N. Y., 49, which he asserts is an authority for the proposition that where a plaintiff in an action of foreclosure fails to produce the bond referred to in the mortgage or to explain its non-production, no recovery can be had. An examination of the record in that case, however, discloses that the court neither intended to nor did encroach on the rule that a plaintiff need not give evidence of a fact alleged in his pleading and admitted in that of his adversary, and it is not, therefore, applicable here.

In Bergen's case the answer distinctly put in issue all allegations in the complaint relating to the bond; and the plaintiff was thus burdened with the necessity of establishing by evidence that the bond described in his pleading had been made, executed and delivered. This he did not do, and it was in a discussion of the question presented by such omission that this court said that the non-production of the bond referred to in the mortgage is evidence of the non-existence or discharge of the mortgage debt, and when unexplained is conclusive against the plaintiff’s right to recover.

To establish the defense of payment one of the defendants’ attorneys produced and put in evidence the bond which he testified he first saw after the commencement of the action, when, with the complaint, it was delivered to him by one of the defendants. No further evidence respecting the time when or the circumstances under which it came into the defendants’ possession was given. When produced, the bond consisted of a front sheet and a back sheet of paper of different quality held together by a third piece, and its possession by the defendants at the time of the trial was wholly relied on by the defendant as proof of payment. No evidence was offered by the plaintiff and judgment was rendered in his favor. Appellant insists that this was error because it having appeared on the trial that the defendants had the possession of the bond, a finding of payment was required. Possession of the bond by the defendants was evidence of payment, but it was not conclusive. It was some evidence, because the .bond was in the hands of a party chargeable with its payment, and overdue, and presumably the possession was legal. Price v. Brown, 98 N. Y., 393.

But the referee having correctly in mind, as appears from his opinion, the force and effect which should be given such evidence standing alone, nevertheless took the view that the presumption of payment which ordinarily arises from the possession of an overdue evidence of debt in the hands of the obligor, should not obtain in this case, because the circumstances surrounding the possession not only excite a suspicion that the possession was not bona fide, but rebut the presumption arising therefrom, and found as a fact that the bond had not been paid. The cit-cumstances which in part, at least, induced the finding, were the production of the bond without the mortgage; the omission to offer in evidence a satisfaction piece, or to account for its absence or that of the mortgage; the absence of an endorsement of payment thereon; the making of a- motion to so amend the answer as to strike out so much of the allegation of payment as averred that it was made to the plaintiff, taken in connection with the absence of any oral explanation on the part of the defendants as to the person to whom payment was made, if not the plaintiff, and the mutilated appearance of the bond.

The general term on its review, after a more extended discussion of the circumstances which it deemed of moment than this court would now be justified in making, reached the conclusion that the referee had correctly decided that the defendants had not paid the bond.

As the question thus determined was one of fact, it is controlling.

The judgment should be affirmed.

All concur. _'


author: Haight, J.

text:
    Thomas C. Avery, Resp’t, v. William H. Starbuck, App’lt.

      (Court of Appeals, Second Division,

      Filed June 23, 1891.)

    1. Work done and material furnished—Evidence.
    Plaintiff did work, and furnished material to "be used, upon the engine, boiler and machiney of defendant's yacht, at the reguest of Pugsley, defendant’s engineer. Upon the trial Pugsleys deposition was read, which stated that he received a bill made out by plaintiff which he returned for correction and afterwards received a second corrected^ bill, which he approved by writing upon its face. Defendant also testified that he had received a bill which he had sent back to plaintiff for corrections and, as he thought, the signature of the engineer thereto. Held, that in view of the facts it was not improper for Pugsley to testify that he audited the bill not as a proof of the correctness of the bill but as showing a compliance with the requirements of defendant.
    2. Written and orad testimony.
    The court erroneously allowed the engineer to state as to whether the contract which was in writing and was for lengthening the yacht, included any work on the engines and machinery. Held, that as the construction of the contract given by the engineer was correct, no harm resulted to defendant by the evidence and so it would not be a ground for reversal.
    Appeal from a judgment of the general term of the superior court of the city of Mew York affirming a judgment entered, on a verdict

      George H. Adams, for app’lt; Joseph F. Mosher, for resp’t.

       Affirming 25 N. Y. State Rep., 354.

   Haight, J.

This action was brought to recover for material and for work, labor and services alleged to have been furnished and performed by the plaintiff upon the steam yacht “ Tillie,” the defendant being her owner.

It appeared, that the material was furnished and that the work, labor and services were performed by the plaintiff upon the engine, boiler and machinery at the request of one Charles B. Pugsley, who was the engineer of the defendant upon the yacht.

There was a conflict in the evidence as to the authority of Pugs>ley to order the repairs, but the issue raised upon this conflict was submitted to the jury and determined by its verdict

Upon the trial the plaintiff read in evidence the deposition of Mr. Pugsley, which had been taken upon a stipulation of the parties. After testifying to the completion of the work by the plaintiff he states that he received a bill made out by the plaintiff which he returned to him for correction and afterwards received a second bill from him which was correct and all right and that he approved it in writing upon the face of it. The bill being produced, he was asked if the words “ Correct, Charles B. Pugsley,” at the foot of the bill, were in his handwriting. This was objected to by the defendant so far as it is any proof of the correctness of.the plaintiff’s claim. The court ruled that it would not be, independently of his testimony, but that it was competent as taken in connection with it To this ruling an exception was taken and the witness answered that it was in his handwriting. The witness also testified that the bill was a correct statement of the articles delivered and of the work expended thereon. It further appears from the testimony of the defendant that he received a bill from the plaintiff and that he sent it back with instructions to have the days and dates put upon it and, ás he thought, the signature of the engineer thereto. In view of these facts the evidence objected to was competent It showed a" compliance with the requirements of the defendant, that the bill should be approved by the engineer, who was upon the yacht and had ordered the repairs.

The words “ correct, Charles B. Pugsley,” written by the engineer at the foot of the bill, would not be evidence that the material or work therein charged for was furnished or performed by the plaintiff, but it enabled the witness to identify the bill which was handed to him shortly after the work was performed, which he then examined and found to contain a correct statement of the articles delivered and the work expended on the yacht.

The engineer was asked by the plaintiff as to whether the Marvell & Co. contract included any work on the engines and machinery. This was objected to upon the ground, among other things, that the contract with Marvell & Co. was in writing. The objection was overruled and an exception was taken. The witness answered that it did not; that their contract only included putting a piece in the boat, lengthening it, taking the engines and boilers out and replacing them back. The boat was lengthened twenty-one feet It appeared that the defendant had recently purchased the yacht and had sent it to Newburgh to be altered and repaired; that he he had entered into a contract with Marvell & Co., ship builders at Newburgh, to cut the hull in two amidships and lengthen it by inserting about twenty feet. This work necessitated the removing and replacing of the boilers and engines, iron and wood work. It was at about the time of -this change in the yacht that the engineer ordered the repairs to the engine and boilers. The evidence objected to should have been excluded. The engineer could not properly be called upon to construe the defendant’s contract with Marvell & Co. and determine whether or not the repairs ordered by him of the plaintiff were included in that contract and should have been made by that firm. But the contract is in evidence and before us. It is in the form of a letter written by Marvell & Co. to the defendant, in which they agree to furnish the material necessary to lengthen the yacht, including hauling, removing and replacing boilers and engines, iron and wood work pertaining to the lengthening of the hull of the yacht for a sum which was therein named. Nothing herein appears requiring repairs to the engine, boilers and machinery. They are to be removed in order to lengthen the yacht and are to be replaced in the hull when lengthened, but no provisions are to be found for their repairs. It thus appears that the construction of the contract given by the engineer was correct, and that consequently no harm resulted to the defendant by reason of the evidence objected to.

Other exceptions appear in the case which we do not deem it necessary to here discuss.

The judgment should be affirmed, with costs.

All concur. _


author: Bradley, J.

text:
    Henry L. Nostrand et al., Ex’rs, Resp’ts, v. John Ditmis et al., Ex’rs, App’lts.

      (Court of Appeals, Second Division,

      Filed June 23, 1891.)

    1. Limitation of action—Husband and wife—Mismanagement of wife’s ESTATE.
    On reference of a claim against a decedent’s estate by his wife, the referee found that she had a separate estate which was managed by her husband; that he kept an account in which he credited himself with sums claimed to have been paid out for her; that certain of said charges were improper and for disbursements for which he was legally liable, but that the statute of limitations ran against two items entered six years prior to the date of the action. Held, error; that under the rule that payments made upon an account will, if nothing appears to the contrary, be deemed applied to the earlier items of it, the amount remaining unpaid may be found in or represented by the later ones, the moneys improperly entered as paid out or charged by him would be treated as still remaining in his hands.
    2. Same.
    The use by the wife of her own money for the purchase of clothing and necessaries for herself would not create a liability to her of her husband for the amount so expended without the aid of circumstances out of which might arise a promise to repay it to her.
    Appeal from, judgment entered upon order of the general term of the supreme court in the second judicial department, affirming order confirming report of referee and judgment thereupon, entered in favor of the plaintiffs.

      E. Countryman, for app’lts; Josiah T. Marean, for resp’ts.

       Reversing 33 N. Y. State Rep., 1103.

   Bradley, J.

The subject of controversy is a claim made by the plaintiff’s testatrix, who has died since the trial, against the estate of the defendants’ testator and referred pursuant to the statute. Those persons intermarried in the year 1859, and shortly thereafter the husband took the possession, care and management of the separate estate of his wife consisting of property both real and personal, and opened and kept an account of the rents, issues, profits and income of the property and of disbursements and payments until near the time of his death, which occurred March 23, 1887. The referee found that certain of such disbursements so charged from and after September 15, 1869, by Mr. Johnson were on his own account, in payment of his debts and moneys given to Mrs. Johnson to pay for clothing and other necessaries suitable to her position in society, and that of the money so received by him he “ retained and never paid over ” to her the sum of 87,814.83 the amount of items improperly charged against such rents, profits and income which he received; and directed judgment for that sum against the defendants. The account through that period of time consisted of a large number of items debited and credited to the defendants’ testator. And the plaintiff’s claim was founded upon such account and made up of items alleged to have been improperly credited to himself as for disbursements and payments to and on account of Mrs. Johnson. A portion of them was entered in the account more than six years prior to the death of the defendants’ testator and some of them within that time. And to the refusal of the referee to find that the claim on such of them in question as were entered prior to March 23, 1881, was barred by the statute of limitations the defendants excepted, and now insist that such refusal was error.

It may be observed that the amount of such rents, profits and income received by and debited to Mr. Johnson within six years preceding his death exceeded the amount of the recovery; and in view of the rule that payments made upon an account will, if nothing appears to the contrary, be deemed applied upon the earlier items of it, the amount remaining unpaid may be found in or represented by the later ones. And for that purpose the moneys represented by entries of disbursements improperly made or charged'by the defendants’ testator, on his own account, would be treated in behalf of his wife as still remaining in his bands. Applying that rule to the present case, the claim would be relieved from the bar of the statute. Thompson v. St. Nicholas Nat. Bank, 113 N. Y., 326, 338; 22 n. Y. State Rep., 929.

It is, however, urged that this cannot be done in this case, because it appears that from time to time prior to 1883 balances were brought down in the account, thus producing an account stated in each instance. Although the evidence may have warranted the conclusion that such was the effect of the several balances so represented, it cannot, as matter of law, be so held, as it does not necessarily appear that it was done by the consent or acquiescence of the plaintiff’s testatrix. This was at least a question of fact for the determination of the referee, and there was no error in his refusal to find as so requested.

There is a further inquiry presenting the question of the sufficiency of proof to justify the allowance of items in the account of cash which the referee found was given to Mrs. Johnson “to pay for clothing and other necessaries. It embraced such entries without anything appearing in connection with them showing the purpose for which the moneys were given to her, and as they appear in the account as disbursements they, without some explanation, must be deemed to have been properly charged as such, since the account was put in evidence by her.

The only other evidence on the subject having relation to the use to which the moneys were applied was given by her testimony as follows: '

“ Q. The cash items that are charged against you in the account. What was the cash used for ? A. For my support and clothing and a great deal that I needed and household expenses.”

To the introduction of this evidence objection and exception were in due time taken by the defendants’ counsel. And if it tended to prove the purpose for which the money was given to her by the defendants’ testator it was inadmissible. Tooley v. Bacon, 70 N. Y., 34; Clift v. Moses, 112 id., 426; 21 N. Y. State Rep., 777. But it is not apparent that such was its effect, and assuming that it was not, there was no evidence to justify the inference that it was handed to her for any purpose other than is represented by the fact that the moneys were entered in the account as disbursements or payments against the rents, profits and income received by the husband from the separate estate of the wife, and in satisfaction pro tanto of her claim against him therefor. And the mere fact that the moneys paid to her by him on that account were used by her for the purposes mentioned in her evidence, did not warrant the conclusion that those entries were improperly made in the account between them, or justify the allowance of the amount of them as a claim for the purpose of recovery against the defendants. The use by the wife of her own money for the purchase of clothing and necessaries for herself would not create a liability to her of her husband for the amount so expended without the aid of circumstances out of which might arise a promise to repay it to her., Jacques v. M. E. Church, 17 Johns., 548; Hendricks v. Isaacs, 117 N. Y., 411; 27 N. Y. State Rep., 449 ; T. N. Bank v. Guenther, 123 N. Y., 568 ; 34 N. Y. State Rep., 478; Romer v. Koch, 49 Hun, 483 ; 18 N. Y. State Rep., 909. The fact that she received the moneys so charged in the account is not questioned. And nothing appears in the evidence to justify the conclusion of the referee that Mrs. Johnson was entitled to recover the amount for which recovery was allowed by him of the cash items so charged to her or credited to the defendants’ testator as payments on account of moneys received by him from her separate estate.

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

All concur.


author: Brown, J.

text:
    John Clark, Resp’t, v. Thomas Stewart et al, App’lts.

      (Court of Appeals, Second Division,

      Filed June 23, 1891.)

    1. Breach of contract—Damages—Measure of.
    Defendants contracted to ship 15,000 tons of ice from Maine to plaintiff in New York. The agreement fixed $1.50 per ton as liquidated damages. Upon the trial, neither party excepting, the court received evidence of the sums paid by plaintiff to purchase a quantity of ice equal to that which defendants failed to deliver, and instructed the jury that they should give the actual damages sustained, i. e., the difference between the price named and the sum paid by plaintiff to make good the deficiency, adding that the “shrinkage of the Maine ice should be added to the price in fixing the amount of damages.” This was fifteen per cent of the cargo. There was 9,388 tons undelivered, and the verdict was for $8,918.60. Held, error; that as the shipping was to be done in Maine, the shrinkage was the plaintiff’s loss, and should have been added to the contract price, and the product deducted'from the price actually paid by plaintiff under the rule fixed by the court.
    2. Same.
    Even though the rule of damages may have been erroneous, as it was acquiesced in by both sides, the defendant should have the full benefit of its proper application to the case.
    Appeal from a judgment of the general term of the second judicial department, which affirmed a judgment entered upon a verdict

      J. D. Fessenden, for app’lts; Henry Daily, Jr., for resp’t.

       Reversing 17 N. Y. State Rep., 628.

   Brown, J.

This action was to recover damages for the breach of a contract entered into between the parties, whereby the defendant agreed to ship from Maine, to plaintiff in New York, during the summer of 1886, fifteen thousand tons of ice.

At the trial the plaintiff had a verdict for $8,918.60. The defendants moved for a new trial upon the judge’s minutes, upon the ground that the verdict was for excessive damages and contrary to the law and evidence, and the denial of that motion presents the questions re viewable on this appeal.

It was provided in the agreement sued upon, that “ either party refusing or failing to ship or accept said ice according to the terms of the contract, shall forfeit ana pay to the other, as liquidated damages, one dollar and fifty cents per ton for the number of tons not shipped or not accepted,” and in his complaint the plaintiff claimed to recover at the stipulated rate.

The court, however, at the trial, without objection from the plaintiff, received evidence of the sums paid by him to purchase in the market a quantity of ice equal to that which the defendants failed to deliver, and instructed the jury that, instead of awarding the plaintiff the amount fixed in the contract as liquidated damages, that they should give the actual damages sustained, and that this was the difference between the price named in the contract and the sum paid by plaintiff, to make good the deficiency in the quantity agreed, to be delivered; and this sum the judge stated to the jury was ninety cents per ton. This statement was, however, subsequently qualified by the- instruction made at the defendants’ request, that “ the shrinkage in the Maine ice should be added to the price in fixing the amount of damages.”

It appeared that the shrinkage was the result of melting during the voyage to New York, and the plaintiff testified that it would amount to at least fifteen per cent of the cargo. There was undelivered by the defendants under the contract 9,388 tons, and it is clear that under the instruction of the court the verdict cannot be sustained.

The contract was one for the sale and purchase of 20,000 tons of ice, of which 5,000 tons was to be delivered in 1885 and the balance in 1886. The defendants were under no obligation to deliver a stated quantity in New York, but their duty was fulfilled when the ice was shipped in Maine on board such vessels as the contract called for. The shrinkage from melting was therefore the plaintiff’s loss.

The shrinkage being fifteen per cent, the total number of tons which would have been actually delivered at New York was 7,981. This was the real deficiency and the amount which defendant was entitled to purchase to make good his contract. But plaintiff was to pay $1.50 per ton according to the weight on board the vessel at the place of shipment, and as the deficiency at that point was 9,388 tons, the ice under contract would have cost $14,082.

The result of shrinkage was to increase the cost of the ice that would have been actually delivered in New York, and under the instruction of the court this increased price was to be added to the contract price in ascertaining the amount of damages. The amount of the increase was not given to the jury, but they were left to make the calculation themselves.

The problem is a simple one, and it is apparent that the effect of the shrinkage was to increase the cost of the ice that plaintiff would have actually received if the contract had been fulfilled from $1.50 to about $1.76 per ton.

The plaintiff testified that the cost of the ice purchased by him to make good the deficiency under the contract, making allowance for all shrinkage and wastage, was $2.40 per ton. . The difference between these two sums, which disregarding fractions was sixty-four cents, represented his actual loss on each ton purchased, and amounted on 7,981 tons to $5,107.84, which was the most favorable verdict to which he was entitled upon the evidence and the law of the case as given to the jury without objection.

The case furnishes no basis for the verdict rendered and the defendants’ motion was therefore well founded, but at the general term he was denied the benefit of the proper application to the facts of the case of the rule of law held by the trial court on the ground that such rule was an erroneous one and that plaintiff was entitled to recover at the rate per ton stipulated in the contract. But no objection was taken by the plaintiff to the ruling of the trial court and if he had objected and excepted inasmuch as he did not appeal, he was not entitled to argue that question to the general term.

The rule of damages stated by the trial judge was acquiesced in by both sides and the defendant should have the full benefit of its proper application to the case.

The judgment should, therefore, be reversed and a new trial granted, costs to abide the event unless the plaintiff stipulate to reduce the verdict to $5,107.84, and if such stipulation is filed within thirty days the judgment so reduced and modified is affirmed, without costs to either party in this court All concur.


author: Gray, J.

text:
    Albert Emmitt, App’lt and Resp’t, v. The Mayor, etc., of the City of New York, Resp’t and App’lt.

      (Court of Appeals,

      Filed June 23, 1891.)

    Municipal corporation—Mew York City—Aqueduct commission—Has no power to suspend inspector without pay.
    The aqueduct commissioners of the city of New York have no power to suspend an inspector for a given time without pay. His compensation is fixed and accompanies the oifice until he is removed or a new rate of compensation consented to.
    Appeal from a judgment of the New York superior court, general term, reversing judgment in favor of defendant

      Lyman E. Warren, for pl’ff; D. J. Dean, for def’t.
   Gray, J.

I can perceive no distinction in principle between the main legal question involved in this appeal and that which was passed upon in the case of Gregory v. The Mayor, 113 N. Y., 416 ; 22 N. Y. State Rep., 703.

The right of the plaintiff to recover for the periods of time during which he was under suspension is not essentially different from the right of the plaintiff which we sustained in the other case. Here the plaintiff was appointed by the aqueduct commission an inspector of masonry, and his employment in that capacity was evidenced by a written certificate of appointment. Neither the term of office nor the compensation to be paid were stated therein. As it was provided in the act creating the commission, that the commissioners might appoint and fix the compensation of persons to supervise and inspect all work authorized by the act to be done, the effect of such an appointment was to make its duration dependent upon the good behavior of the appointee or the pleasure of the commissioners.

The office of inspectors being one created by the act, when filled the incumbent became more than a mere ordinary employe or laborer engaged by the commissioners. Besides, it appears that his candidacy for the office must have been fortified by a certificate from the civil service commission, and his qualifications further certified to by at least three of the aqueduct commissioners. Such an employe upon the work cannot be classified or regarded as a temporary or occasional laborer. He fills an office, with certain more-or less important responsibilities attached to it, and he becomes entitled to receive the compensation as it was fixed by the commissioners until they see fit to discharge him. That power unquestionably is inherently theirs and that is not disputed: but where is to be found the power to suspend the incumbent of the office without pay? Nothing in the act, vesting the commissioners with powers, leads us to infer such a power as to suspend an officer without pay.

The only discretion which we find existing, with respect to engineers, supervisors or inspectors, is as to when and where they shall be appointed, and what shall be their compensation when appointed. Counsel for the city argues that the act creating the aqueduct board was designed for a special purpose, and that when the work of supplying New York city with an increased supply of pure water is completed, the commissioners, and all holding office under them, become fundi officio. He, therefore, finds in such features ground for distinguishing such a departmental body from the board of excise, which is a permanent department of the local government; and so, from the difference in the feature of permanency of the two commissions, and in the nature of the duties of the inspectors appointed under each, as affected by the character of the work they are engaged upon, he deduces the proposition that there is a necessity for inferring the existence of a power in the aqueduct commissioners to suspend an inspector without pay. In that way he endeavors to avoid conflicting with the rule in the Gregory case. So far as his argument is based upon the difference in the'creation, duration or municipal relations of the two commissions, I fail to perceive its force; while the argument drawn from the nature of the duties and the character of the work is sufficiently met by the suggestion, that being a matter concerning the compensation, it could have been arranged for at the ti.me of the appointment The commissioners had power to fix that to suit themselves; but they had to fix it, and it could not be left to be dealt with arbitrarily. It was subject to change by the consent of the employe; but, when fixed, the compensation accompanied the office until the official was removed or a new rate of compensation was consented to.

In Gregory v The Mayor, supra, the plaintiff was an inspector of excise, and he sued to recover payment of his salary for the time he was suspended by a resolution of the commissioners of excise. The argument was that he was a mere employe, having no fixed term. of employment, and whom the commissioners in suspending, in fact, discharged. Notice of suspension, it was argued, was a discharge from duty and pay until, in their pleasure, the board should re-employ him upon duty.

The argument was unsuccessful and we held that the power to suspend could not be inferred from the power to remove, nor be deemed inherent, and that it could not be regarded as a lesser power compressed within the greater. It was considered that nothing in the circumstances of the case showed an inherent necessity for the inference of the existence of the power to suspend from the grant of the power to remove. I admit the force of the suggestion of the learned counsel for the city that there might be occasions when the work would not require the active performance of the duties of such employes; but that would be a reason for regulating the method of their compensation by some agreement. The compensation was left wholly to be fixed by the commissioners and the rate and condition of payment could perfectly well have been the subject of agreement between them and their appointee. In my opininion, therefore, as the office of inspector was one which the act empowered the commissioners to fill by appointment, the incumbent derived from his' office the right to receive the emoluments belonging to it, until discharged; and that temporary or indefinite suspension without pay was not within the powers of the commissioners to effect arbitrarily. But, as the compensation was to.be fixed by the commissioners, it was perfectly competent for them to agree with the plaintiff with respect to it. It is only when the salary of an official is fixed by the law that it is beyond the power of those by whom he has been employed to agree upon some other figure, or to affect it in any way. People ex rel. Satterlee v. Police Board, 75 N. Y., 38, and Kohn v. State, 93 id., 291, recognize that principle distinctly. Hence, though this plaintiff .was entitled to recover the compensation fixed by the Aqueduct Board, while he remained in office, when he subsequently agreed that if suspended by the aqueduct commissioners, his pay should cease from that time, subject to their direction, the agreement constituted a waiver on his part and was a regulation as to his compensation, which it was perfectly competent and lawful to agree upon and which thereafter regulated the. amount and mode of payment of the compensation he would be entitled to while continuing in office.

These views lead to an affirmance of the order and judgment below; and as both parties have appealed, it should be affirmed, without costs to either party as against the other.

All concur, except Finch, J., absent.

       Affirming 38 N. Y. State Rep., 355.


text:
    Robert W. Millbank, Appl’t, v. Morgan Jones, Resp’t.

      (Court of Appeals, Second Division,

      Filed June 23, 1891.)

    Pleading and proof—Answer—General denial.
    In an action to recover a certain sum of money and stock deposited by plaintiff with defendant, which was to he returned to plaintiff should a certain resolution not be passed by the common council so as to take effect before a designated day, the defendant offered to show that the alleged agreement was illegal. This proof was objected to as not admissible becausé not pleaded, the answer being a general denial, but the objection was overruled. Held, error; that as it neither appeared from the complaint or the evidence of plaintiff that the contract was illegal, the defendant could not avail himself of facts not appearing on the face of the contract to establish its invalidity.
    Appeal from an order of the general term of the superior court of the city of New York, affirming a judgment in favor of the defendant entered on the verdict of a jury.
    The action was brought to recover $5,000 and interest thereon which the plaintiff asserts the defendant held in trust for him pursuant to the terms of the following agreement:
    “Resolved, That the street commissioner be and he is hereby authorized and directed to make a contract for lighting all the streets, avenues, roads, squares, parks, public buildings and places of the city of New York with coal gas. Such contract to be founded on sealed bids and proposals, and to be made with the company, giving adequate security to be approved by the comptroller in the manner provided by law, which shall agree to do the same for the lowest price for each lamp or light per annum, or quantity when it can be measured, according to the existing regulations, and affording to such company sufficient time to lay their mains and introduce gas as required by the contract. The provisions of the contract last made and executed with the Manhattan Gras Company, as far as practicable, shall be embodied in the contract made in pursuance of this resolution, and the term during which the same is to continue will be for the same number of years as that contract. Any resolution or ordinance inconsistent with this resolution is hereby repealed.
    “New York, June 14, 1866.
    “ Received of E. W. Millbank five thousand dollars ($5,000), and also certificate for two hundred and fifty (250) shares of the stock of the People Gras Light Company of the city of New York, number seven (7), the said money and stock to be returned to said Millbank in case the resolution above shall not be passed and take effect before the 10th of July next
    “ It being understood and agreed that said Millbank shall have the right, at his election, in case said resolution shall pass and take effect before the said 10th of July, to purchase back the said stock at any time within sixty (60) days from the time said reso- ' lution shall take effect, by paying to me fifteen thousand dollars ($15,000) therefor; and that he shall on his part be bound to purchase the same and pay said fifteen thousand dollars ($15,000) therefor, within said sixty (60) days at my election.
    “ Morgan Jones.
    “ I assent to and join in the above understanding and agreement

      “ E. W. Millbank.
    “New York, June 14, 1866.”

      Ira Shafer, for app’lt; Joseph Fettretch, for resp’t.

       Reversing 25 N. Y. State Rep., 868.

   Parker, J.

On the trial the plaintiff, for the purpose of establishing a cause of action, introduced in evidence the agreement of the defendant to return the $5,000 paid to him in the event that the resolution thereon referred to should not be passed and take effect before the 10th of July following; a record of the proceedings of the board of aldermen and board of councilmen, and a veto message by the mayor, showing that the resolution did not take effect before July 10th, together with proof that a demand for a return of the money was made prior to the commencement of the action, and rested. Thereupon the defendant made a motion to dismiss the complaint, assigning, among others, the following grounds : (1) A valid trust has not been established; (2) the contract is void because on its face it appears that its purpose was to improperly influence legislation.

It appears from the argument that Jones, at the time of its execution, received from Milbank $5,000, which on the happening of a certain event he agreed to return. It did not provide that Jones should pay to Milbank $5,000, but that “ the said money (the receipt of which had been acknowledged) to be returned to said Milbank in case the resolution shall not be passed and take effect before the 10th of July next.” Clearly such a transaction contains every element essential to the creation of a valid trust Day v. Roth, 18 N. Y, 448-453.

It is the tendency of judicial decisions to discountenance all attempts to influence the deliberations and determinations of public bodies and officers other than by arguments which being openly made bear directly upon the merits of a pending measure or application, because in contravention of a sound public policy. A contract founded on a violation of this wholesome rule of law is illegal, and the court will not lend its aid to a party seeking its enforcement, but will declare the contract void, leaving the parties to it in the position in which they placed themselves. Mills v. Mills, 40 N. Y., 546.

The defendant, in his motion for a dismissal of the complaint, invoked this rule of law, but the situation then presented, as we think, did not support his position. It did not appear that Jones was an alderman, a councilman or mayor. There was no evidence relating to the contract or the object sought to be accomplished by it outside of the instrument itself, and it does not appear from an examination of its provisions that it comes within the condemnation of the law, because against public policy. It did not provide that Jones should assist in procuring the passage of the resolution therein referred to, or that he should render any services whatever. It purports to make Jones the depository merely of the money, to be by him returned in the event that the resolution should fail to pass and take effect before July 10th. The court, therefore, rightly denied the defendant's motion to dismiss the complaint, who at once entered on the introduction of testimony tending to show that the contract was against public policy. Plaintiff’s counsel seasonably objected that it was immaterial, incompetent and not admissible under the answer, because not pleaded.

The objection was overruled, and the exception taken thereto presents the question assigned for error by the appellant. The answer was a general denial, and the plaintiff insisted on the trial, as he does on this appeal, that not having been informed by the answer that the illegality of the contract would be an issue on the trial, he could not be expected to be prepared, nor required, to meet it Under a general denial, the rule undoubtedly is that if the illegality appears on the face of the complaint, or necessarily appears from plaintiff’s evidence, advantage may be taken of it by defendant, who must also be permitted to controvert by evidence everything which the plaintiff is bound in the first instance to prove in order to make out his cause of action. And the cases cited by' the respondent in support of the ruling will be found on analysis to come within it.

In Russell v. Burton, 66 Barb., 539, the contract as proved by the plaintiff was for lobby services, and void.

In Oscanyan v. Arms Co., 103 U. S., 261, the complaint was-dismissed on the opening of plaintiff’s counsel, because it appeared therefrom that the contract relied on was illegal.

In Cary v. Western Union Telegraph Co., 20 Abb. N. C., 333, 15 N. Y. State Rep., 204, the plaintiff in making proof of his contract introduced evidence showing its invalidity.

And in O’Brien v. McCann, 58 N. Y., 376; Clifford v Dam,81 id., 52, and Griffin v. L. I. R. R. Co., 101 id., 348,1 N. Y. State Rep., 56 the court simply declared the rule that under a general denial the defendant may give evidence tending to disprove any fact which the plaintiff is bound to prove in order to recover. But in this case it neither appeared from the complaint or the evidence presented by the plaintiff that the contract was illegal, and as we have already shown when the plaintiff rested, the evidence established a cause of action. The general denial put in issue all matters which the plaintiff was bound to prove ; nothing more. He was required to prove the contract entered into by defendant, which was on its face valid. Having accomplished that-, he could not be compelled to enter into a controversy over matters not appearing in the contract involving the question of its validity or invalidity, because-he had not been notified by the answer that the defendant proposed to assert his own participation in that which was a violation of law as a shield against the consequences of his agreement.

This rule has been enforced so long, that it seems unnecessary to support it at this time by an extended reference to the decisions, and we shall, therefore, end the discussion by citing a few of the cases in which the courts of this state have said that a defendant, in order to' avail himself of facts not appearing on the face of a contract, to establish its invalidity ,must plead it. Dingeldein v. The Third Ave. R. R. Co., 37 N. Y., 575; Goodwin v. Mass. Mut. Life Ins. Co., 73 id., 480; May v. Burras, 13 Abb. N. C., 384; Haywood v. Jones, 10 Hun, 500; Shreyer v. Mayor, 39 N.Y. Supr. Ct.,' 1; Vischer v. Bagg, 21 W. Dig., 399; Honegger v. Wettstein, 94 N. Y., 252.

The judgment should be reversed.

All concur.