author: Smith, P. J.: Hardin, J.:

text:
    PHŒNIX FOUNDRY AND MACHINE COMPANY, Appellant, v. THE NORTH RIVER CONSTRUCTION COMPANY, Respondent.

      Action for the dissolution of a/n insolment corporation — power of the cowt to restrain the prosecution of other actions against it.

    In January, 1884, one Woerishoffer, a stockholder ■ of the defendant, a foreign corporation, brought an action against it in behalf of himself and all other stockholders and the creditors of the company, in the first judicial district, and therein alleged the insolvency of the company, the appointment of a receiver in New Jersey, and prayed for the appointment of a receiver here. Thereupon the New Jersey-receiver was appointed an ancillary receiver here. January nineteenth the plaintiff brought this- action in Onondaga county against the company to recover for goods sold. On February seventh, upon the application of Woerishoffer, an order was made, in the action brought by him at a Special Term held in the first district, restraining all persons from bringing or prosecuting any suits or proceedings against the company until the further order of the court. The plaintiff having been serVed with a copy of the order moved, in the fifth district, to have it vacated.

      Meld, that the motion was properly denied.
    That the court in which the action for the appointment of a receiver was brought had power to grant such an order, and that in exercising such -power, the order being for the protection of the fund in its possession, it was not subject to every provision of the statute and rules applicable to injunction orders-granted to protect the individual rights of the applicant.
    Appeal from an order of the Onondaga Special Term, denying-the plaintiff’s motion to vacate an or.der granted by a justice of this-court in the first judicial district, on notice, in an action in favor of Charles F. Woerishoffer against the presem defendant.
    The defendant is a foreign corporation, created under the laws of New Jersey, doing business in this State, and having a business and fiscal agency in the city of New York. On 14th January, 1884, Woerishoffer, a stockholder of the defendant, brought his action in this court against the defendant, in behalf of himself and all other stockholders and of the creditors of the defendant, alleging the-insolvency of the defendant, and that a receiver of its effects had been appointed by a court of competent jurisdiction in New Jersey, and asking for the appointment of a receiver of the property of said defendant in this State, which was done by an order of this court made at a Special Term in the first department. The New Jersey receiver was appointed in this State, the appointment being ancillary to that made in New Jersey, and he duly qualified and entered upon his duties. This action was began 19th January, 1881, on contract for goods sold and work done, the place of trial being laid in Onondaga county. Subsequently, and on February seventh, the order from which this appeal is taken, was granted upon the application of the plaintiff Woerishoffer, restraining all persons from bringing of prosecuting any suits or proceedings against the defendant, or in any manner interfering with the assets of the defendant, until the further order of this court. A certified copy of the last mentioned order was served by mail on the attorneys for the plaintiff herein.

      Knapp, Nottingham c& Andrews, for the appellant.

      G. B. Alexander, for the respondent.
   Smith, P. J.:

The object of the action brought by the stockholder Woerish offer, and of that to which it is ancillary, is to wind up the affairs of the insolvent corporation and make an equitable distribution of its assets among all its creditors. The receiver appointed in those actions represents the corporation, its stockholders and its creditors, and the court by which he was appointed had authority, as an incident to the power of appointment, to prevent any interference with the assets of the corporation by individual creditors or others, in order to preserve the fund for distribution. (In the Matter of the Application of the Attorney General v. The Guardian Mutual Life Insurance Company, 77 N. Y., 272.) Such authority may be exercised by an order made in the suit in which the receiver is appointed. (Id.) An order of that nature, being for the protection of the fund which the court has in its possession through its receiver, is not subject to every provision of the statute and of the rules of court which apply to injunction orders granted upon the application of a party for the protection of his individual rights. It is properly made in the 'action in which the receiver is appointed, and a creditor who attempts to interfere with the fund by unnecessarily subjecting it to the costs of an action to enforce his claim, cannot set up that the' order is ineffectual as to him because not made in his own action. ' If there are controversies to be litigated, or accounts to be adjusted, between such creditor and the corporation, all can be done on the investigation of the claim in the winding up suit, and the creditor is a party to that suit, through his representative, the receiver. In short, the order is made in the exercise of the inherent power of the court to protect its receiver and the fund in his. hands, and is not a creature of the Code. (2 Story’s Eq. Jur., § 891.) This power is recognized by section 1806 of the Code, in the classes of actions therein referred to, in which, however, the present action is not included, but that section is simply declaratory of the common law, as far as it goes, and does not divest the court of its power in cases not within its provisions.

That this court has the power, by an order made in one action, to restrain proceedings in another pending before it in another district, was held in Erie Railway Company v. Ramsey (45 N. Y., 637), overruling the case of Schell v. Erie Railway Company (51 Barb., 368), cited by the appellant’s counsel. True, the power is to be exercised in extreme cases only, but here is a case in which' its exercise is necessary for the equal protection of all the .creditors of the insolvent corporation, including the creditor whose action is stayed by it.

If these views are correct, it results that none of the objections urged by the appellant’s counsel are tenable. As we have seen already the order is valid, although not made in the action brought by the present plaintiff. And the provisions requiring an undertaking to be given on obtaining an injunction order, and that the order shall state the grounds on which it is granted, do not apply to an order like the one in hand.

If the mode of service was ■ insufficient, it does not warrant the ■ vacating of the order; whether it would authorize proceedings against the plaintiff for a contempt, in case of disobedience of the order, is a question not involved in this appeal.

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

Hardin, J.:

In the "Woerishoffer action against the North River Construction Company, the court acquired jurisdiction of the defendant, and had power to appoint a receiver. The receiver so appointed represents-all the creditors, and as Andrews, J., says in Attorney General v. Guardian Mutual Life Insurance Company (77 N. Y., 277): They are subject to the summary jurisdiction of the court in matters pertaining to the administration of the estate of the insolvent-corporation.” The court at Special Term, in New York, had power to make the order staying proceedings against the insolvent corporation. If that stay order was improperly granted, or if reasons exist why it should be vacated or modified quo ad the plaintiff in this action, the reasons should be presented to the court in the district wherein the stay order was made. If the plaintiff is entitled to such remedy, it must be sought by application to the court in the district in which the receiver was appointed and in the action in which the appointment was made.” Andrews, J., in Rinn v. Astor Fire Insurance Company (59 N. Y., 148) used the-language just quoted. Besides, it is proved by section 769 of the Code of Civil Procedure, viz.: “ A motion upon notice in an action in the Supreme Court must be made within the judicial district in which the action is triable.”

The same proposition, we have already stated, was asserted by the court in the First- Department, in 1881, in deciding Attrill v. Rockaway Beach Improvement Company (reported in 25 Hun, 378).

If the order was irregular because obtained without complying-with section 610 of the Code, or Rule 13, without reciting the grounds upon which it was granted, the remedy was by motion in the district wherein it was made. Section 769 of the Code was not referred to in Walsh v. Stern (12 Week. Dig., 424), and the court incidentally remarked that the “ legal effect of the order was to-remove an illegal restraint, and it had no other effect.” We do not regard that authority as applicable here. But if a full examination of that case should present the point involved, and a holding advérsete the views we have stated, we should be constrained to disregard it, and follow cases we have hereinbefore cited.

Percy v. Seward (6 Abb., 327) is not applicable. It was decided in 1858, long before the enactment of section 769, and the motion was made in all the actions, and was a motion to consolidate all of the actions. And it was made in the county “ in which all the parties resided,” and the actions “ were all triable in Albany county,” •where the motion was made. If the order restraining or staying actions is too broad, it is not therefore void, and a party may not disregard the order simply because it is too broad or extensive. (Mayor v. N. Y. and S. I. R. R. Co., 64 N. Y., 622; People v. Sturtevant, 9 id., 263.) We think the plaintiff must seek his remedy, if he wishes to assert it, in the lifetime of the order complained of in the action pending in the first district. ( Wilkinson v. This Defendant, 66 How., 428; Atty. Genl. v. North Am. L. Ins. Co., 6 Abb. N. C., 297; People ex rel. Atty. Genl. v. Security L. Ins. Co., 79 N. Y., 272; Pringle v. Woolworth, 90 id., 502.)

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

Barker, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: Rumsey, J.: Barker, J.

license: Public Domain

text:
    JACOB ANDERSON, Appellant, v. EUNICE J. DOTY, Respondent.

      Bawdy home — its aontirmance will not be restrained by an injunction, upon the application of a pa/rty whose property is depreciated in value by it.

    The complaint in this action alleged that the plaintiff was the owner of certain houses in a street in the city of Bochester; that the defendant had for many years kept, and still did keep, a bawdy house; that the house so kept was a disorderly house and a nuisance, and that it was situated on the same side of" the street as the plaintiff’s houses and some twelve rods from them, that by reason of the maintaining of such bawdy house the plaintiff’s houses were rendered less salable, and that he had been prevented from procuring desirable and responsible tenants for them, whereby he had sustained damages to the amount of $8,000.

      Beld, that these facts did not entitle him to an injunction restraining the defendant from continuing the nuisance maintained by her. (Barker, j., dissenting.)
    Appeal from an order, made at a Special Term, dissolving an injunction restraining the defendant from keeping and maintaining •a house of prostitution on her premises in the city of Rochester. .
    The injunction order was granted ex pa/rte upon a verified complaint, and an affidavit on the part of the plaintiff supporting the material averments thereof.

      Upon the dissolution of the injunction at Special Term the following opinion was delivered by Rumsey, J.:

      Q'uinoy Vcm Voorhees, for the appellant.

      O. M. Allen, for the respondent.
   Rumsey, J.:

. The defendant moves to vacate this injunction upon the papers on which it was granted. Upon the facts alleged there is no doubt that the house of the defendant is a common nuisance. It is situated as alleged, at No. 91 Exchange street. The house of plaintiff, in which he resides, is at No. 101, and he also owns Nos. 99 and 101-J- on the same street. He alleges that by reason of the keeping of the bawdy house of the defendant, the neighborhood has become disreputable, and much less desirable as a place of residence than it would have been, and the plaintiff has been unable to find a person to occupy or pay rent for his said houses during a considerable time; and at other times he has been able to get tenants for them only by accepting undesirable and irresponsible tenants, and has at all times been compelled to accept a much smaller rental than the houses would have been worth were it not for the existence and effect of the nuisance maintained by the defendant.

The nuisance is said to consist in the fact that the defendant’s house “ has been and is kept as a dwelling place for lewd women and prostitutes, and a resort for lewd men and women for lewd purposes, and as a bawdy house, and a disorderly house, and a nuisance.”

There is no allegation of any noise, or any ‘ physical discomfort or tangible injury to the persons of the occupants of plaintiff’s houses, or to the property, but the injury complained of is entirely consequential in its nature, arising from the fact that decent people will avoid such places, however quietly conducted, because of the inconveniences which they apprehend may occur, although such apprehensions may never be realized. The defendant’s counsel bases his motion upon the ground that a private action will not lie to restrain a public nuisance, unless the plaintiff suffers an injury by it to his person or property different in character from that common to all citizens, and that this particular injury must be some sensible physical discomfort or visible injury to property. The general rule is well settled that a private individual cannot restrain a public nuisance by his private action unless he suffers damage different in kind from that which the nuisance causes all other people. (Coke, 56 a; Stetson v. Faxon, 19 (Pick., 147.) But this private injury must be physical, that is, it must be offensive to the senses, or endanger health, or render the use of property uncomfortable, or. actually interfere with its use. (Wood on Nuisances, 4; Catlin v. Valentine, 9 Paige, 575; Brayton v. Fall River, 113 Mass., 219—229; St. Helen's Smelting Co. v. Tipping, 11 H. L. Cas., 642.)

Mere liability to injury is not sufficient. (Blackwell v. Old Colony R. R. Co., 122 Mass., 1-3; Milarkey v. Foster, 25 Am. R. 531 and note; Stetson v. Faxon, 31 Am. Dec., 123, and note.) Nor is mere consequential injury, because plaintiff’s premises are rendered less desirable or less valuable, ymere no physical damage has been done to the property or no personal discomfort sustained by the occupants, a ground for private action. (Lansing v. Smith, 8 Cow., 146, 167; Ricket v. Metro. Ry. Co., 5 B. & S., 149.) It may be quite difficult to lay down any general rule. But I think it is safe to say, as is said by Wood, it is not enough that it diminishes the value of surrounding property. It is not enough that it renders other property less salable, or that it prevents one from letting his premises for as large a rent as before, or to as responsible or respectable tenants. (Wood on Nuisances, 4; Bigelow Ldg. Cas. on Torts, 467, et seq.)

In this case there are alleged no offensive sights or sounds from defendant’s house, but the injury is caused because the existence of the nuisance gives the neighborhood a bad name. I do not think this is sufficient injury to plaintiff to enable him to maintain this^ action.

But there are reasons of public, policy and propriety why in my judgment this action should not be maintained by the plaintiff. The house kept by defendant is a nuisance, not because it is a source of discomfort to the immediate neighborhood, but because its probable and natural consequence is harmful to the social and moral welfare of the public. It is a nuisance because it is a crime, and it can only cease to be a nuisance when it is abated.

I do not think that courts of equity are the proper tribunals in which to do this. The usual and customary means, and those always heretofore employed, are set in motion by the courts which administer the criminal law, whose machinery is sufficient to give to the community full relief in' a case of this hind, and at the same time to administer such punishment as will prevent the recurrence of the evil. It is the duty of the plaintiff to apply to those tribunals to which the law has given the power not only to punish the guilty persons, but tp abate the nuisance (Code Grim. Proc. § 953), and to execute its judgment to that effect. I cannot doubt that if the plaintiff, and all persons aggrieved by the existence of such places, would resort to the criminal courts,' the law would be promptly and rigorously enforced. At all events the duty of dealing with offenses of the kind charged against defendant is confined to the criminal courts, and should not be assumed by, nor imposed upon courts of equity.

The case of Hamilton v. Whitridge (11 Md., 128) may possibly, be sustained as an exercise of the power of a court of equity to prevent the erection of a nuisance, but I do not think it is an authority for the issue of a mandatory injunction to punish a crime already committed, or to prevent the commission of a new crime,, or to abate a nuisance which can be abated by the judgment of the criminal court.

The motion to vacate the injunction must be granted, but I shall give no costs of the motion.

At the General Term the order dissolving the injunction was affirmed upon the opinion delivered at the Special Term, after hearing Quincy Van Voorhees for the appellant, and O. M. Allen for’ the respondent. Judge Barker dissenting and delivering the following opinion:

Barker, J.

(dissenting):

It is charged in the complaint that the defendant, in a certain house located in the central (part of the city of Rochester, does and has for many years kept and maintained a bawdy house, as a dwelling place for lewd women and as a resort for common prostitutes and licentious men, who frequent the same for lewd .purposes, and threatens to continue the use of the house for such purposes, and that the house is disorderly, and for these reasons is a nuisance. Twelve rods from this house, on the same street and on the same side thereof, the plaintiff is the owner of a block of buildings consisting of three dwelling houses, one of which he occupies as a family residence and the other two are rented by him- as dwellings or as boarding houses; that by the reason of maintaining and keeping of such bawdy house by the defendant, the plaintiff’s property is much less valuable as a place of residence, and the plaintiff has been unable during a considerable portion of the six years last past to find tenants to occupy and pay rent for his said houses,-and at other times he has been unable to secure desirable and responsible tenants, and that the rental value of the property has been greatly diminished, and that he has suffered damages by reason thereof in the sum of $3,000. The affidavits which accompany the complaint, and were read on granting the preliminary injunction, support these averments, and the defendant did not on the application to dissolve the injunction dispute the same. Upon these admitted facts the question is presented, whether the plaintiff is entitled to relief by injunction, for the purpose of restraining the continuance of the nuisance maintained by the defendant on her property.

The keeping of a bawdy house is confessedly a nuisance. The law detests and abhors the offense to good morals which such an occupation encourages, and spurns every attempt to give it lawful recognition. It brands the person who maintains it as a criminal, and the offender may be prosecuted by indictment and punished by fines and imprisonment. That the plaintiff may maintain an action for the damages he has sustained by reason of the nuisance, and is also entitled to an injunction restraining its Coirtinuance, is fully recognized and well established by the decisions in this country and in England. (2 Story’s Eq. Jur., §§ 921, 924; Soltau v. De Held, 9 Eng. Law and Eq., 104; Walter v. Selfe, 20 Law Jour. Ch., 433; Corning v. Lowerre, 6 Johns. Ch., 439; Sampson v. Smith, 8 Simons, 272; Georgetown v. Canal Co., 12 Peters, 91; Davis v. Mayor, etc., 14 N. Y., 526; Hutchins v. Smith, 63 id., 251; Peek v. Elder, 3 Sandf., 126; Francis v. Schoellkopf, 53 N. Y., 152; Wesson v. Washburn Iron Co., 13 Allen, 95; Baltimore and Potomac R. R. Co. v. Baptist Church, 108 U. S., 317; Pierce v. Dart, 7 Cow., 611; Rose v. Miles, 4 Maule & Sel., 101; Clarke v. Blackmar, 47 N. Y., 152; Hamilton v. Whitridge, 11 Md., 128; Givens v. Van Studdiford, 72 Mo., 129; S. C., 4 Mo. App. R., 498.)

The principle established by these decisions is, when the act complained of, or which is apprehended, besides being a.public nuisance, would be injurious to a private person, he may rnaintain an action at law for damages, or a bill in equity for an injunction in his own name. The rule has its foundation in the precept that every person is bound to use his own'property in such manner as not to injure the property of another, or the reasonable and proper enjoyment of it. The difficulty lies in the application of this principle. The true limit of the rule, within which its operation is allowed is to be found in the facts of each particular case. If the right invaded or impaired is a common and public right, open to the use and enjoyment of all, then the person who maintains the nuisance is not liable to a private action at the suit of one who has suffered no damage therefrom, except such as is common to the entire community, though he is liable at the suit of one who has. sustained damage peculiar to himself.

Whether the facts alleged in the complaint and supported by the affidavits make a case for upholding the injunction is the only serious question presented. Tested by the cases herein, the facts are found to be similar in all essential respects to those established in this. There is no doubt but what an action at law may be maintained for damages. Upon principle and authority I think a suit in equity for an injunction, restraining the continuance of the nuisance may also be maintained, and is a fit and appropriate remedy, to apply to the case with a view of suppressing the nuisance maintained by the defendant. The law gives the injured party an action at law for his damages, and a court of equity has jurisdiction in an appropriate case, for the reason that a serious and substantial injury has been done to the plaintiff’s property in consequence of the wrongful acts of the defendant. The law does not give the plaintiff a right of action because the defendant is an immoral person and lives a life of infamy, but because-, she, at a particular place, well known to the public, carries on an illegitimate business, which amounts to a public nuisance, which causes an injury to the plaintiff’s property, depreciating its pecuniary value so long as the nuisance remains. In support of the position that the injury to the plaintiff’s property is special, in contradistinction to the injury which is common to all the public, and the case as now presented falls within the rule, I refer to some of the leading cases on the subject.

In Francis v. Schoellkopf (supra) the defendant .carried on the business of tanning and boiling putrid animal matter, in such a way as to create a nuisance and offensive. smells, to such a degree as to render the house of the plaintiff nearly unfit for habitation, by means of which he was unable to rent one of them at all, for a portion of the time, and for the residue was obliged to rent it for a less sum than she could otherwise have obtained therefor,4and the one in which she and her family resided was made disagreeable and uncomfortable. One house was situated about seventy-five feet from the tannery building, and the evidence showed that other houses in the vicinity were affected similar to those of the plaintiff. It was an action at law and the plaintiff had a verdict. The defendant insisted that as the stench injured a large number of houses, the injury was common, and therefore no one could maintain an action for particular injury, the. only remedy being an indictment for the common.injury to the public. Judge Grover, in delivering the opinion of the court, answered the argument in a few brief and terse sentences, by saying that “ the error of this is obvious, both upon principle and authority. The idea that if by a wrongful act a serious injury is inflicted upon a single individual, a recovery may be had therefor against the wrong-doer, and that if, by the same act, numbers are so injured, no recovery can be had by any one, is absurd. This, stripped of verbiage, is the ground of the motion. It is said that holding the defendant liable to respond in an action to each one injured, will lead to a multiplicity of actions. This is true, but it is no defense to a wrong-doer when called upon to compensate for the damages sustained from his wrongful act, to show that he, by the same act, inflicted the like injury upon numerous other persons. The position is unsustained by any authority.”

In Baltimore and Potomac Railroad Company v. The Baptist Church, the facts were these: The railroad company located its engine-house and repair shops on premises adjoining the church property, and by reason of the proximity of the defendants works and the noise, smoke, cinders and dust, which they created, the rental value of the church property was diminished and the attendance lessened, and access thereto made more hazardous. The plaintiff recovered a verdict, wbicb was sustained, and the court remarked, in delivering its opinion, that if the nuisance was continuous in its character equity would restrain it.

In Wesson v. The Washburn Iron Company, the action was to recover damages resulting to an inn from a nuisance, by carrying on works and operating machinery in the neighborhood, which shook the building and prevented guests from sleeping, and the court stated the rule as follows: “ When the alleged nuisance would constitute a private wrong, by injuring property or health, or creating personal inconvenience or annoyance, for which an action might be maintained in favor of a person injured, it is none the less actionable because the wrong was committed in a manner and under circumstances which would render the guilty party liable to an indictment for a common nuisance, although all persons owning estates in the vicinity have sustained injuries from the same cause. It is only when the nuisance complained of is an invasion of some common or public right that the injury is confined to a public prosecution.”

In Givens v. Van Studdiford, the action was on the law side of ’ the court to recover damages sustained by the plaintiff, in consequence of the defendant’s maintaining a bawdy house in the neighborhood adjacent to the plaintiff’s property, and the court held that it was a private as well as a public nuisance, and the plaintiff was entitled to recover whatever damages it had caused him, reversing the decision of the court below, which was in the defendant’s favor.

• An infinite number of cases might be cited, where the rule has-been applied, to cases presenting a different combination of facts and circumstances, but of the same general import, resulting in an injury to the property of the complaining party.

That courts of equity have jurisdiction in a similar class of cases, and may, by the process of injunction, suppress the nuisance, is «qually well established..

In Corning v. Lowerre, an injunction was granted upon the ground, that the obstruction was not only a common and public nuisance, but for the reason that it worked a special injury to the plaintiffs

In Clarke v. Blackmar, the plaintiff’s premises were situated 140 feet from the place where the defendants maintained an obstruction to the travel in a public street, which somewhat impaired the rental value of the plaintiff’s property, by making it more difficult of access, and the-court said that the plaintiff’s damages were such, and his premises so near to the obstruction, that he could maintain an action in a court of equity, compelling the defendants to remove the obstructions unlawfully placed in the street.

In Peck v. Elder, several persons, each owning separate tenements affected by the nuisance, joined as plaintiffs in a suit to restrain its continuance by an injunction. The defendants on their own premises, not immediately adjoining the premises of the plaintiffs, erected and operated a smelting house, and the stench and vapors therefrom amounted to a nuisance in the neighborhood and depreciated the rental value of the plaintiffs’ property, and the chancellor, in upholding a preliminary injunction, said that courts of equity have jurisdiction to restrain nuisalices which are injurious to the property of individuals, and that the law on that subject was well settled and did not admit of a discussion.

In Sampson v. Smith, the plaintiff sustained his bill. It was for filling the street that passes the .plaintiff’s draper shop with smoke and soot from a steam-engine, which the defendant used on his place of business, on the opposite side of the street.

Hamilton et al. v. Whitridge, was¡ a suit in equity, to restrain the defendant from maintaining a bawdyhouse on his premises, located in the neighborhood of the respective houses of the several plaintiffs in the city of Baltimore. Some of them lived on a different street and their premises were not adjoining the premises on which the defendant maintained the nuisance, the court held it had jurisdiction to suppress the nuisance, and gave final judgment in favor of the plaintiffs.. The argument of the court is so sound,, just and sensible, that it should dispel all doubt upon the question as to the power and jurisdiction of a court of equity in this class of cases.

As courts of equity have jurisdiction to abate and restrain common nuisances, such as pig-stys, skughter-houses, lime kilns, tanneries, tallow factories, when in consequence thereof special damages are sustained by individuals, which are not common to the public, no reason or argument has been presented, satisfactory to my mind, why jurisdiction should be withheld, when invoked at the suit of injured parties, to suppress a nuisance so offensive aud intolerable as the one which the defendant maintains and defiantly threatens to continue.

I am in favor of reversing the order of the Special Term and restoring the injunction.

Order dissolving injunction affirmed, on opinion of Mr. Justice Rumsey, at Special Term, with ten dollars costs and disbursements.


author: Smith, P. J. : BARKER, J.

text:
    THE EQUITABLE CO-OPERATIVE FOUNDRY COMPANY, Respondent, v. THOMPSON HERSEE, Appellant.

      Election of remedies — an action by a vendor against a fraudulent vendee for the price of goods, if discontinued before judgment, does not prevent an action of trover against a purchaser thereof — what demand must be made against one purchasing goods from a fraudulent vendee for an antecedent debt.

    In the summer and fall of 1876 the plaintiff sold to the firm of M. Fisher & Co., of Buffalo, certain stoves and stove furniture, the said sales being induced by the false and fraudulent representations of the said firm as to their pecuniary responsibility, and the said goods being purchased by the said'firm when insolvent and with the intent not to pay for them.
    August 13, 1876, this defendant commenced an action against the said firm upon an antecedent indebtedness and entered a judgment therein by default. On October twenty-third a portion of the property so sold by the plaintiff to the said firm was levied upon and sold under an execution issued upon the said judgment, and the same was purchased by the defendant and the amount bid therefor applied upon the judgment.
    On March 28, 1877, the plaintiff commenced an action upon the contract of .sale against Fisher & Co., who appeared therein by an attorney but served no answer. Notice of adjustment of costs was served but they were never taxed, / nor was any judgment docketed. On May seventeenth the plaintiff commenced an action against this defendant and Fisher & Co., alleging that the purchase was fraudulent and that the defendant participated in it. In June, 1879, a judgment rendered in this action in favor of the defendant was affirmed on appeal.
    July thirty-first the present action of trover to recover for the conversion of such of the plaintiff’s goods as were taken by the defendant was commenced. The defendant pleaded the action brought against Fisher & Co. as an exercise of the plaintiff’s election of remedies, and as constituting a bar to this action. The plaintiff thereafter and on September 36, 1879, obtained, without notice, an ex parte order discontinuing the action against Fisher & Co. on payment of costs. The costs were tendered on that day and refused.

      jHeld, that as the action against Fisher & Co. had been discontinued before the entry of any judgment therein, and as the plaintiff had derived no benefit and the defendant sustained no injury from the prosecution thereof, that it was not an absolute election of remedies upon the part of the plaintiff and that it constituted no defense to this action. (Barker, X, dissenting.)
    That the action against the defendant and the firm was not an affirmance of the contract of sale, as it alleged the fraud of the defendant as the ground of relief.
    That the delay of the plaintiff in bringing this’action was satisfactorily accounted for by the pendency of the former one.

      It seems, that the act of the defendant in causing the property to be taken forcibly from the possession of the fraudulent vendees by issuing an execution against their property, and subsequently ratifying and approving of the levy made on the particular goods in question, constituted a conversion thereof. (Smith, P. J.)
    It was claimed that the demand which the plaintiff had made for the goods was defective, in that it was not accompanied by a notice of the defect in the defendant’s title.

      Held, that the objection was properly overruled. (Barker, X, dissenting.)
    It was objected that the demand was excessive, it having been made for all of the goods sold by the plaintiff to Fisher & Oo., whereas it appeared that a part of the said goods wei’e sold by Fisher & Oo. to others and never came into the possession of the defendant.

      Held, that the objection was not maintainable because:
    (1.) The defendant did not put his refusal to comply with the demand on that ground, but denied the plaintiff’s right to any part of the goods.
    (3.) That he waived the objection by not raising it at the trial, where it might have been obviated by proof of a limited demand. (Barker, X, dissenting.)
    Appeal from a judgment in favor of the plaintiff, entered on tbe report of a referee.

      G. A. Scroggs, for the appellant.

      G. H. Humphrey, for the respondent.
   Smith, P. J. :

Trover for certain stoves and stove furniture claimed to be the property of the plaintiff, and to have been converted by the defendant to his own use. The property in question was sold and delivered by the plaintiff in the summer and fall of 1876, to the firrft of M. Fisher & Co., on credit. The firm was composed of Martin Fisher and Sanford Whiting, and was engaged in the business of selling stoves and hollow-ware, in the city of Buffalo, where the defendant resided. At the time of the purchase, the firm was insolvent, and was indebted in a large amount, nearly $10,000 of which was owing to the defendant. The plaintiff claims that it was induced to sell said goods to said firm, on -credit, by false and fraudulent representations made by Fisher as to the means and pecuniary condition of the firm, and that said firm, knowing their insolvency, purchased the said goods with intent not to pay for them. On 12th August, 1876, the defendant herein commenced an action against the members of said firm, in which he claimed judgment against them for the sum of $9,471.34, besides interest, upon twenty-six promissory notes, executed by said firm to him at different dates from the 1st of May, 1872, to 29th July, 1876. The defendants in that action made default, ancl Hersee did not enter up judgment against them until 23d Octooer, 1876. Most of the goods which form the subject of this action were delivered to Fisher & Co., and received by them after Hersee sued them and before he entered up judgment. Soon after the said judgment was docketed, Hersee, by virtue of an execution issued on the same, levied upon a portion of said property of the value of $711.58, and bid it off .at sheriff’s sale, applying the amount of his bid towards the satisfaction of his said judgment. The plaintiff was informed of Hersee’s judgment in October, soon after it was obtained. On 25th ^November, 1876, the plaintiff signed an agreement to compromise its debt against Fisher & Co., at twenty-five cents on the dollar, conditioned, however, that it was not to be binding till all the creditors assented to the same. At the time of signing said compromise, the plaintiff had an oral stipulation with Fisher & Co., for a preference. The conditions of the compromise were not fulfilled and the plaintiff received nothing under it. On 28th March, 1877, the plaintiff commenced suit against Fisher and Whiting on the contract for the purchase of the goods. Fisher and Whiting appeared in the action by attorney, but did not answer, and made default. On the eighteenth April, the plaintiff’s attorney served notice of adjustment of costs, but no adjustment was had, and no judgment was docketed, and the suit remained in that condition until after this action was commenced. The defendant herein set up that action as a defense, claiming that the plaintiff had elected thereby to affirm the contract, and thereupon the plaintiff, on 26th September, 1879, obtained and entered an ex parte order at a Special Term of this court, that the said action be discontinued on payment of defendants’ costs. On the same day the plaintiff tendered to the attorney of Fisher and Whiting, ten dollars for their costs in said action, which he declined to accept. On 14th May, 1877, the plaintiff commenced suit against Hersee, in which Fisher and Whiting were named as defendants, but the summons and complaint were served on Hersee alone, and he alone answered. .The allegations in the complaint upon which issue was taken and a trial had, "were, in substance, that the purchase of said goods was fraudulent and that Hersee participated in the fraud. The action was tried before Mr. Justice Barker without a jury, and judgment was rendered in favor of Hersee, which was affirmed in this court on appeal in June, 1879. The action now before us was commenced 31st of July, 1879. The referee before whom it was tried found, in substance, that the sale of said goods on credit was induced by representations made by Fisher respecting the means and liabilities of said firm, which were false to his knowledge ; that at that time Fisher & Co. were insolvent and unable to pay their debts, and knew themselves to be so, and that they ordered said property and obtained possession of the same without the expectation or intention of paying for it. He found the facts of the indebtedness of said firm to Hersee, the suit brought and judgment recovered thereon, and the issuing of execution and the levy and purchase by Hersee, substantially as above stated. He also found that at the time of the purchase Hersee advanced nothing for the goods, but took them in part payment of a precedent debt and was not a bona fide purchaser. He found that before the commencement of said action the plaintiff demanded of the defendant possession of said goods and defendant refused to surrender them. He also found the facts above stated in reference to the compromise and the two actions brought by the plaintiff; and he found that in the last of said actions Justice Barker decided that the purchase by Fisher & Co. yras fraudulent, but that Hersee was not a party to the fraud. The referee also found as conclusions of law that by reason of the fraud so found no title to the property vested in Fisher & Co.; that as the defendant parted with no value for the goods, he acquired no better right to them than was possessed by Fisher & Co.; that defendant’s, levy was a conversion; that none of the subsequent acts of the plaintiff constituted a waiver of the cause of action herein, and that the. plaintiff is entitled to recover of the defendant the value of so much of said property as was levied on by him with interest. •

The contention of the appellant’s counsel that the finding of fraud on the part of Fisher & Co. is not supported by the evidence cannot be maintained. The testimony on the part of the plaintiff tending to prove the alleged false representations, although controverted, fully supports the findings upon that point. Independently of the false representations, the undisputed fact that Fisher & Co., knowing themselves to be largely insolvent, continued to receive the plaintiff’s goods after Hersee had sued them, without disclosing the fact of such suit, is very strong evidence that they did not intend to pay foi the goods when they ordered and received them. There was, therefore, ample proof of fraud aside from the findings of Justice Barker in the suit tried before him ; and the questions raised by the appellant’s counsel as to those findings, and whether they were admissible in evidence, are immaterial. It may be remarked, however, that the question of their admissibility is put at rest by the stipulation appearing in the case, whieh provides that either party may read from the judgment-roll in the case of the present plaintiff against Hersee, impleaded with Fisher and Whiting, which was the case tried before Justice Barker. The findings were incorporated in the judgment-roll, and properly so. (Code, § 1237.) •

A more difficult question is whether the evidence shows that the plaintiff, with knowledge of the fraud, elected to affirm the contract of sale. That he was informed of Hersee’s judgment a few days after it was docketed, and had full knowledge of the fraud as early as the following January, is clearly proved. The agreement to compromise was in November, 1876. Had the agreement been consummated, or had the plaintiff received anything under it, there would be no difficulty in holding that the plaintiff thereby waived its right to avoid the contract. But the agreement resulted in nothing. It bound no one. It was merely a consent on the part of the plaintiff to compromise on certain conditions that never were performed. We think it had not the effect to confine the plaintiff to its remedy upon the contract.

The action against Fisher and Whiting being upon the contract, would doubtless have been conclusive evidence of an election to affirm the same, if it had proceeded to judgment, even if the judgment had been adverse to the plaintiff. (Per Kent, Ch., in Sanger v. Wood, 3 Johns. Ch., 416; citing 1 Sch. & Lef., 441; Butler v. Miller, 1 Comst., 496.) There are many cases where the fact of bringing suit to enforce one of two inconsistent remedies has been held an election, although the suit has not proceeded to judgment. One class of those cases is where the plaintiff has realized some benefit from the suit by means of a provisional remedy therein, or otherwise, as in Morris v. Rexford (18 N. Y., 552), where, in replevin, the plaintiff obtained a redeliverv of his goods; or in Butler v. Hildreth (5 Metc., 49), where the plaintiff secured his demand by an attachment of property. Another class consists of actions against a sheriff fór a voluntary escape, where, by the fact of such suit being brought, the prisoner may leave the jail liberties with impunity, and the sheriff cannot purge the escape by a recaption without the authority of the plaintiff. Such are the cases of Brown v. Littlefield (1 Wend., 398); Rawson v. Turner (4 Johns., 469), and McElroy v. Mancius (13 id., 122), cited by the appellant’s counsel. In those cases the change worked by the bring, ing of the suit in the status of the prisoner and ,the sheriff is held to conclude the plaintiff from adopting any other remedy. It is said in an instructive note to the case of Smith v. Hodson (4 T. R., 211), in Smith’s Leading Cases (7th Am. ed., vol. 2, m. p. 198), that whatever may be the rule in other cases, there can be no doubt that when the ground taken in a suit is prejudicial to the other side by cutting off from a good defense, or precluding. a recovery on a valid cause of action, it will preclude the person who adopts it from shifting his ground subsequently to the injury of his opponent. * * * The principle applies wherever an attempt is made to gain an inequitable or unfair advantage by presenting the same matter in different and inconsistent aspects, * * * and furnishes the true explanation of most of the cases examined in this note.”

But, with the exception of the two classes of cases above men.i tionéd, we.are not aware of any decision holding that in the case of a fraudulent purchase, the commencement of a suit upon the contract concludes the plaintiff from rescinding the contract and reclaiming the goods, where the action on the contract has 'been regularly and seasonably discontinued, before judgment. There are numerous cases in which expressions may be found to the effect that the -bringing of a suit on the contract is a conclusive election of remedies, but with the exceptions above stated, those cases, so far as we .have observed, refer to a suit not discontinued and existing in full force. A suit on the contract begun one day and discontinued the next, could not, with reason, be deemed a conclusive election of remedies; and there is no substantial difference between such a case and the one now under consideration,'unless it be found in the fact that here the prior suit was not discontinued until after it was pleaded in the present action. In the case of two successive-suits on one and the same cause of action, a discontinuance of the-first action after it is pleaded in the second, is permissible, and such discontinuance will be a good reply to the plea. (Beals v. Cameron, 3 How. Pr. R., 414; Averill v. Patterson, 10 N. Y., 500.) Or it may be given in evidence in answer to the matter pleaded, where a reply is not permitted or required.

What reason is there for not applying the same rule to the present ease? Upon the assumption that the purchase was fraudulent and that the defendant took the property from the possession of the fraudulent vendees without paying value for it, to hold that the-prior action, although abandoned and regularly discontinued, is a bar to a recovery, would be interposing a mere technicality to shield the defendant from a just liability. The plaintiffs gained nothing by their former suit, and neither the defendants in that suit, nor the-defendant in this, lost anything by it. There is nothing in the case constituting an equitable estoppel, and the present status of the-defendant is the same as if the prior suit had not been instituted.

In Peters v. Ballistier (3 Pick., 495) the master of a vessel had exceeded the authority which had been given him to sell the cargo, by disposing of it in payment of an antecedent debt due by the-owner to-the vendee. An action of assumpsit was subsequently brought against the latter by a party claiming as assignee of the bill of lading, which was discontinued and an action of trover resorted to in its stead. It was held that as the action of assumpsit had not been proceeded with, but had been discontinued, it did not debar the plaintiff from maintaining the action for conversion.

It was said in the subsequent case of Butler v. Hildreth (supra) that the decision in the case of Peters proceeded on the ground that the action of assumpsit, brought in the first instance, had been misconceived, and could not have been sustained. But, as was suggested by the author of the note to Smith v. Hodson, in Smith’s Leading Cases, above referred to, the plaintiff’s mistake in bringing assumpsit, lay in forgetting that by so doing he necessarily entitled the defendant to insist upon the contract as binding in his favor, as well as against him, and to show that all which it bound him to do had been performed.

We think it will be found on examination that there is no adjudication in this State antagonistic to the idea that the doctrine of a conclusive election of one of several remedies by personal action, rests upon an equitable estoppel. That the two classes of cases already referred to herein rest upon that basis is clear. In Goss v. Mather (2 Lans., 283; S. C., aff’d, 46 N. Y., 689), the plaintiff recovered judgment in his first action and collected it in part. In Rodermund v. Clark (46 id., 354), a party whose half interest in a vessel was sold against his will, retained possession of the vessel after the sale, and it was held that he could not sue for a conversion. Fol&er, J., delivering the opinion of the court, cited Sanger v. Wood (3 Johns. Ch., 416) and Littlefield v. Brown (supra). In the first of those cases the party had proceeded to judgment; the second was, as we have seen, an action against a sheriff for an escape. In Nichols v. Smith (42 Barb., 381) the plaintiff had prosecuted his foreclosure suit to judgment. In Bank of Beloit v. Beale (34 N. Y., 473) the plaintiff had prosecuted his action, in which he affirmed the-act of his agent, and stress was laid upon that fact. Davies, Ch. J., cited Lloyd v. Brewster (4 Paige, 537), in which the like fact existed, and was made the basis of the decision, and Leonard, J., cited the case of Morris v. Rexford (supra), where the plaintiff had replevied his goods. In Wright v. Ritterman (4 Robt., 704; S. C., 1 Abb. Pr. [N. S.], 428) it was held by the Superior Court of the city of New York that the pendency of an action on contract for goods sold and delivered will not prevent the bringing of an action for the conversion of the same goods; that the plaintiff may have two remedies in such a case, and an adjudication in an action brought to obtain either, whether for or against him, may be a bar to the other; but at any time previous to such ah adjudication, he may discontinue the first ■.action and proceed with the second.

The appellant’s counsel cites Kinney v. Kiernan (49 N. Y., 164); Moller v. Tuska (87 id., 166), and Powers v. Benedict (88 id., 605). The pith of the decision in each of those cases is, that after a contract of sale has been rightfully rescinded by the vendor on account of fraud on the part of the vendee, the contract is at an end, and no act on the part of the vendor alone can revive it. And in ■each of the last two cases cited it was held that the commencement of an action to recover the possession of the property, which had been prosecuted to the very judgment which the court then had ■under review was such a rescission. Those cases, in view of their facts, are in harmony with the position of the respondent in the case before us. Some expressions in the opinion delivered in Moller’s case, if detached from the context, might seem to intimate that the bare commencement of the action was a conclusive election. But keeping in mind the authorities there cited, as well as the facts •of the case, no such conclusion can be drawn. Among the authorities cited is the remark of Comyn, that if a man once determine his election it shall be determined forever (Dig. Elect. C., 2) and the last line of the maxim found in Coke upon Littleton :

Medio semelfaata eVpladtum testatum nonpatitur regressum, Quod semel plaeuit in eledionibus cmplius displicere non potest.”
[Coke Litt., 146 a.]

The authors from whom those quotations are made, were speaking of an election between a remedy by real action and a remedy by personal action. If,” said Littleton, “ a man grant by his deed a rent charge to another, and the rent is behind, the grantee may ■choose whether he will sue a writ of annuity for this against the .grantor, or distrain for the rent behind. But he cannot do or have both together, for if he recovered by writ of annuity, then the land is discharged of the distress, and if he doth not sue a writ of annuity, but distrain for the arrearages, and the tenant sueth his replevin, and then the grantee avow his taking of the distress in the land, in a court of record, then is the land charged and the person of the grantor discharged of the action of annuity.” (Sec. 219.) “ Here it appeared,” says Coke in his note thereon, that an avowry in a court of record, which is in the nature of an action, is a determination of his election before any judgment given.” And then he •quotes the maxim above cited. But,” he continues, “ here is a diversity to be observed between the case aforesaid of the grant of the rent when he (as has been said) may make it either real or personal, and when a man may have election to have several remedies for a thing that is merely personal or merely real from the beginning. As if a man may have an action of account or an action of debt at his pleasure, and he bringeth an action of account and appear to it, and after his nonsuit, yet may he have an action of debt afterwards, because both actions charge the person. The like law is of an assize and a writ of entry in the nature of an' assize, and the like.”

Comyn lays down the same doctrine, “ but,” says he, where an election is of several remedies, if he chose one he may afterwards have the other in personal cases, as when he has election of several actions.” (Dig. Election, 541, citing Co. Lit., 146 a.)

As these authorities were referred to by the learned judge who-delivered the opinion in Muller’s case, and also in that of Powers, it is not reasonable to suppose that those cases were intended to' assert a different rule. Morris v. Rexford (supra) is also cited in Moller’s case.

There is a class of cases kindred to the one in hand where an agent having purchased goods for an undisclosed principal by whom they were used, the vendor has his election to sue the principal or the agent. In Priestly v. Fernie (3 Hurls. & Colt., 977; 34 L. J. [N. S.], Exch., 172) it was held that whilst a judgment against principal or agent, even without satisfaction, would constitute a conclusive election, yet that no legal proceeding short of a judgment would have that effect. (See, also, Curtis v. Williamson, 11 Eng. R. [Moak’s Notes], 149; Mattlage v. Poole, 15 Hun, 556; Nason v. Coakroft, 3 Duer, 366.)

It seems reasonable that where a person has two or more inconsistent remedies, the bare fact of his suing upon one without thereby improving his own condition or injuriously affecting that of the defendant therein, or of any other party (if he discontinues such suit before judgment), and without securing any advantage by his suit, should not prevent his resorting to any other remedy to which he was originally entitled. For these reasons we are of the opinion that the bringing of the suit of March, 1877, was not a ratification of the contract which precludes the plaintiff from maintaining the to judgment and having been seasonably and regularly discontinued.

May, 1877, was not an affirmance of the contract, inasmuch as it alleged the fraud as the ground of the relief sought. It is to be observed that the suit begun in March was not set up as a defense in that action, although'it was as available for that purpose in that action as in this.

the contract urged in behalf of the appellant is the delay in bringing this action. But the delay is satisfactorily accounted for by the pendency of the action of May, 1877, which was not finally determined till June, 1879. This action was begun in July following.

is no evidence of a conversion. The defendant caused the property to be taken forcibly from the possession of the fraudulent vendees, by issuing an execution against their property and subsequently ratifying and appi'oving of the levy made on the particular* goods in question. Having thus wrested the goods from the possession of the plaintiff’s fraudulent vendees, his position differs from that of a bona fide purchaser acquiring possession by voluntary delivery. Had the fraudulent vendees been mere bailees of the property, the taking the -defendant would have made him hable to the owner as a trespasser; otherwise, if they had delivered the property to him. (Vin. Abr. Trespass, M. pl., 11; Marshall v. Davis, 1 Wend., 109, 114; Nash v. Mosher, 19 id., 431, 435; Ely v.Ehle, 3 Comst., 506.) eases cited put the right to the action on the non-consent of bailee. (See, also, Acker v. Campbell, 23 Wend., 372.) In the present case, whatever title the fraudulent vendees had was defeasible voidable at the election of the plaintiff, and the defendant havtaken the property from their possession, by force, there is much for saying that he is in no better position than the fraudulent vendees, and that, he is liable to the plaintiff, as a trespasser, on its electing to avoid the contract of- sale. And upon that ground the held that the levy was a conversion.

But it is not necessary to rest the case on that ground, for the found a demand and refusal, and those facts are enough to a conversion if the forcible taking is not sufficient. It is contended by the appellant that the demand was faulty, because it not a The cases cited by the appellant’s counsel do not support his contention in that respect. They are Gillet v. Roberts (57 N. Y., 58), Matteawan Company v. Bentley (13 Barb., 641), Stevens v. Hyde (32 id., 171), and Bliss v. Cottle (Id., 322). In Gillet v. Roberts the defendant was a purchaser in good faith, he having to pay value, and the property was delivered t'o him by his It was in respect to such a case that Judge EaRl made remark cited by the appellant’s counsel, that “ the rule is a reason- and just one, that an innocent purchaser of personal property a wrong-doer shall first be informed of the defect in his title, and an opportunity to deliver.the property to the true owner, he shall be made liable as a. tort feasaz. Jox.^jrrongful conversion.” Pertinent as the remark was to the facts of that case, it not necessary to the decision. The learned judge had shown the defendant had done no act that amounted to a conversion, that all that was relied upon by the plaintiff, as establishing a conversion, was certain language of the defendant which had not effect. The case of the Matteawan Company does not bear upon the point. In Stevens v. Hyde and Bliss v. Cottle, the action against a general assignee of the fraudulent vendee for the benefit of creditors. In the first case, the only evidence of a conversion was that on a simple demand, accompanied by an offer to return certain money and notes received from the purchaser, the defendant refused to give up the 'property. There was no notice .of an assertion by the plaintiff that the purchase was fraudulent, and that on that ground he elected to rescind. The plaintiff having-been nonsuited on the ground that the tender should have been made to the vendee and not to his assignee, that position was repudiated by the General Term, but the nonsuit was affirmed and a new trial denied, on the sole ground that the plaintiff had not kept the tender good and had refused to produce the notes at the trial. But it was not said that the demand was insufficient. In Bliss v. Cottle the demand was made by an agent, but as he was not shown to have been authorized by the plaintiff to make the demand, it was held insufficient on that ground. It may be conceded, however, that in each of those cases the rule suggested would properly apply, the defendant in each case having purchased the property in good faith from the wrong-doer and received it from him by delivery. But, as we have seen, those facts do not exist in this ease, and we think the rule contended for does not apply.

White v. Dodds (42 Barb., 554) was an action against the general assignee of a fraudulent vendee for the benefit of his creditors, to recover the possession of the goods fraudulently purchased. The cases of Bliss v. Cottle and Stevens v. Hyde, were commented on, and it was held that the possession of the assignee, being peacefully and innocently acquired from the apparent owner, may be regarded as so far lawful that a demand should be made of him to deliver it up before he can be subjected to an action; but a majority of the court held that the vendor, claiming the goods-as the true owner, is not bound to disclose the source or the particulars of his title. And where a demand of the property is made of the assignee, in whose possession the same is, it is not necessary to accompany or precede the demand by a declaration or disaffirmance of the contract, and a statement that such disaffirmance is on the ground of fraud perpetrated by the assignor in making the original purchase. The position of the defendant in this case is certainly no better in this respect than that of a general assignee of the fraudulent vendee for the benefit of creditors.

Again, it is contended that the evidence fails to establish a conversion, for the reason that it shows that the defendant was unable to comply with the demand. This contention rests upon the testimony of the plaintiff’s witness, that he demanded the goods on behalf of the Co-operative Foundry Company, and that the defendant said that he had no goods of the Co-operative Foundry Company. This, it is said, is evidence that he had not the goods in question. We understand it, on the contrary, to be a denial of the title of the company to the goods. That the goods in question were taken by the defendant into his own possession is undisputed. There is no evidence that he had parted with them. In the cases cited by the appellant’s counsel upon this point there was either no evidence that the goods had ever been in the defendant’s possession, or there was affirmative evidence tending to show that they were not in his possession.at the time of the demand.

In our examination of this case it has been suggested by one member of the court that the demand was' excessive, it having been made for all the property sold by tbe plaintiff to Fisher & Co., whereas the referee has found that a part of the goods were sold by Fisher & Co. to other parties, and never came to' the possession of the defendant. To this there are several answers. (1.) The defendant did not put his refusal to comply with the demand on that ground, but he denied the plaintiff’s right to any part of the goods. (2.) Tiie suggestion that the demand was excessive was not made at the trial; if it bad been made, the objection might have been obviated by proof of a demand limited to the plaintiff’s goods in defendant’s possession. Under these circumstances the objection was waived and cannot be raised for the first time on appeal. This view of the matter works no injustice to the defendant, as the recovery is only for the value of the goods which were in his possession.

It is contended by the appellant’s counsel that the referee erred in holding that by reason of the fraud of Fisher & Co. they acquired no title to the goods. The finding may not be strictly accurate, some of the cases holding that where the goods are delivered to the fraudulent vendee, in pursuance of the contract of sale, he acquires a title to them, subject to being avoided, at the election of the vendor. And that is probably the true doctrine. (Slevens v. Hyde, 32 Barb., 171, and cases cited.) But the error was harmless, for if the views we have already expressed are correct the sale was avoided by the vendor; and all the cases are agreed that where that is done neither the fraudulent vendee nor a mala fide purchaser from him has any title whatever. ( Wheaton v. Baker, 14 Barb., 594; Stevens v. Hyde, supra.) There are no other questions in the case requiring discussion.

The judgment should be affirmed.

ITaRdiN, J., concurred.

BARKER, J.

(dissenting):

The contract of sale was fully executed by delivery of the property. It was the intention of both the vendor and vendees that on delivery of the property the title thereto should pass to the latter. Such was the legal effect of the contract of bargain and sale, subject, however, to the right of the seller to rescind the contract and reclaim the property because of the fraudulent misrepresentaso as did nothing in disaffirmance of the sale the legal title remained in Fisher & Co., or those who claimed under them.

as to .protect innocent parties who may in good faith deal with fraudulent purchasers concerning the property. The authorities are in harmony with these views. Suppose after the goods were received by Fisher & Co. at their store in Buffalo a customer of theirs, without any notice of the fraud, had purchased one of the stoves in good faith and paid for it, who can doubt but that he would have acquired a perfect title as against the plaintiff. (Saltus v. Everett, 20 Wend., 279; Mowrey v. Walsh, 8 Cow., 238; Stevens v. Hyde, 32 Barb., 171; Rowley v. Bigelow, 12 Pick., 306; Nichols v. Michael, 23 N. Y., 264.) In this case it not to be claimed that the defendant was a purchaser for value so as to acquire a perfect title as against the plaintiff, as his bid for the property at the sheriff’s sale was not paid in cash, but was applied on pre-existing debt which he had against Fisher & Co. represented the judgment.

defendant’s position is this, that as against Fisher & Co. the sale was voidable at the instance of the plaintiff, and until it elected rescind the same, parties dealing with Fisher & Co. concerning property, and acting in good faith and ignorant of the fraud, cannot be charged as tort feasors by the mere act of purdhase. That as the levy and sale was, prior to any attempt by the plaintiff avoid the sale and reclaim the property, his purchase of the prop-was not wrongful and did not in law amount to a conversion, that his possession was lawful until he had notice of the fraud, that the plaintiff repudiated the sale on the ground of fraud and demanded from him a return of the property.

There is no ground for saying that the defendant participated in fraud, or that he had any knowledge of it prior to his purchase; therefore, he could not be charged as a wrong-doer and be held of .a conversion, until after a proper demand. This the failed to make before suit brought.

finds, as a fact, that before the commencement of action the plaintiff demanded possession of said goods, and the defendant refused to surrender the same or any part thereof.

supported by the evidence, amounts to a converBut, in my opinion, the evidence does not support a so broad and unqualified as the same is expressed in the finding. demand, such as it was, did not take place until more than two years after the sale. There is no proof where the property then nor that the defendant had sold or transferred the same. The only item of evidence on the subject is found in the testimony 'of witness, the plaintiff’s agent, who says that he called on the defendant at his office in Buffalo,, at the corner of Main and Chippewa streets, and showed him an itemized bill of the goods which Fisher & Co. had previously purchased, and then in the words of the witness, “ I demanded the 'goods represented on the bill on behalf of the Co-operative Foundry Company. He said he had no goods from the Co-operative Foundry Company; nothing else; I left the bill of the goods with him.” From other portion's of the evidence, it appears that the goods mentioned in the bill embraced all the goods sold to Fisher & Co., after the fraudulent representations were made. Of such goods many parcels had been sold ‘by Fisher & Co., before the levy, in value amounting to $400. The goods purchased by the defendant at the sale included a large amount of property which the plaintiff never owned, and which had become a part of the stock and goods sold by the sheriff, and bought by the defendant in one lot, on a single bid, in amount $4,755.48.

The defendant was not notified that the plaintiff nor why a demand was made upon him for the goods. He not given a suitable opportunity to comply with the same, it insufficient because it was excessive. An innocent purchaser of property at á sheriff’s sale cannot be so easily made a wrong-doer treated as a tort feasor. The law is not so severe and unjust. The defendant did not put forth any claim of title to the property the time the demand was made. In his reply to the demand he stated the truth “ that he had no goods from the plaintiff.!’ ‘Where mere words are relied upon to prove a conversion, they must be uttered under such circumstances in proximity to the property as to show a defiance of the owner’s rights, a determination to exercise dominion and control over the property, and to exclude the owner from the exercise of his rights. The remarks of the court in Gillet Roberts (57 N. Y., 28), relative to the subject of conversion byan innocent purchaser, are applicable, to this case, viz.: The rule is a reasonable and just' one,* that an innocent purchaser of personal' property from a wrong-doer, shall first be informed of the defect of his title, and have an opportunity to deliver the property to the true owner before he shall be made liable as a tort feasor for a. wrongful conversion.”

The case of Pease v. Smith (61 N. Y., 475) holds nothing to the contrary. There the purchase was at a private sale, from a wrongdoer who had no title, nor pretense of title, and besides the defendant had, after his purchase, sold the property, and this act of ownership, together with the other fact, it was held amounted to a conversion. (See, also, Rawley v. Brown 18 Hun, 456; Storm v. Livingston, 6 Johns., 44.)

The plaintiff elected to stand by the sale, when it commenced its suit against Fisher & Co., for the purchase-price of the goods. Such election liad the effect to confirm the defendant’s title to the property. At that time the plaintiff was fully informed of the fraud which had been perpetrated upon it. In the face of such knowledge they made an election to stand by the contract of sale, from which they cannot recede. That action was still pending when this was commenced. (Moller v. Tuska, 87 N. Y., 166; Morris v. Rexford, 18 id., 552.)

This rule, so long established in this State, is the same in Massachusetts, and was applied in Ormsby v. Dearborn (116 Mass., 386), Seavey v. Potter (121 id., 297).

I am for reversing the judgment.

Judgment affirmed.


author: Smith, P. J.:

text:
    GEORGE SCHWANDNER, as Administrator, etc., of PETER SCHWANDNER, Deceased, Appellant, v. MARTIN H. BIRGE and Others, Respondents.

      Duty of the owner of a factory to fw’nish means of escape in case of fti'e — when he is liable for an injury occasioned by his faikire to do so — what risks are not assumed by a servant when entering into the employment of a master.

    'The plaintiff’s intestate, who was about nineteen years old, was employed by the defendants in their wall paper factory in Buffalo. The building was of brick and five stories high. Workmen were 'employed on each floor, and the intestate passed from floor to floor in discharging his duty, which was.to pick up and carry away scraps of paper. The fifth story was divided into two rooms by a partition, containing openings through which the employes could pass. In ■each room was an elevator (not used, however, for the carrying of workmen). In the front room there was a stairs leading down to the fourth floor, and a scuttle in the roof, but no ladder to reach it. In the rear room was an iron ■door leading to the roof of an adjoining building. A fire broke through the fifth floor not far south of the scuttle and set Are to rolls of paper which were hung up in that story to be dried. The Are spread rapidly, cutting off escape from the back room, the stairs and iron door, and a number of the employes of the defendant at work upon that floor were burned to death. Among them was the plaintiff’s intestate. An ordinance of the city required every building more than one story high to have a scuttle through the roof and a convenient and suitable stairway or ladder leading to the same.

      Meld, that the question as to whether the defendant was not guilty of negligence, in failing to provide sufficient- means of escape from the fifth floor in case of fire, and particularly in not furnishing a stair-case or ladder leading to the roof, and whether such omission did not cause the death of the intestate, should have been left to the jury..
    That the question whether or not the intestate, when entering into the employment of the defendants, took the risk of injury which might arise from the omission of the defendants to furnish adequate means of escape in case of fire should also have been submitted to the jury.
    'That the court erred in granting a nonsuit.
    Appeal from a judgment of nonsuit, ordered at tbe Erie Circuit.

      Adalbert Moot, for tbe appellant.

      James M. Himvpfirey, for tbe respondents.
   Smith, P. J.:

Tbe complaint is for negligently causing tbe death of tbe plaintiff’s intestate, Peter Scbwandner, wbo' was an employe of tbe ■defendants in tbeir wall-paper factory in tbe city of Buffalo, at tbe corner of Perry and Indiana streets. Tbe factory was destroyed by fire on the 17th of December, 1880, and tbe intestate lost bis life in tbe flames. * Tbe evidence tended to show tbe following state of facts ; Tbe factory was a brick building, five stories in height, and workmen were employed on each floor. The deceased was nineteen years old, healthy, worked every day, lived with bis parents and contributed bis earnings to tbeir support. He bad no stationary place of employment in tbe factory; bis business was on every floor, and in every part of tbe building, carrying away'scraps of paper. Tbe fire broke out just before six o’clock in the afternoon. About half an hour before tbe fire broke out, the intestate was seen ■on tbe fifth floor and was not seen alive by any oí the witnesses afterwards. Tbe testimony would have warranted tbe jury in finding that tbe intestate was on tbe fifth floor when tbe fire broke out, and that be there perished.

Tbe alleged negligence of tbe defendants consisted in not providing sufficient means of escape from tbe fifth floor in case of fire, ■and particularly in not furnishing a stair-case or ladder, or other means of access to tbe scuttle in tbe flat roof, which was immediately over- tbe fifth floor and about eleven feet above it. Tbe fifth story was divided into two rooms by a partition, in which were open spaces through which tbe workmen could pass. In each room was. an elevator, which, however, was not used as a means of passage for tbe workmen. In tbe room fronting on Perry street was a staircase, descending to tbe fourth floor, and from that floor two staircases led to the ground floor. In tbe rear room was an iron door •opening on to tbe flat roof of an adjoining building, known as Tifft’s pattern shop, but egress by that door was impeded somewhat by iron cog-wheels piled against it. Tbe fifth story was used as á drying room, and was kept at a temperature of about 100 degrees, and in it was suspended a large quantity of dried and drying paper. 'When tbe fire broke out thei e were about twelve boys at work in each room on tbe fifth floor. Tbe fire first broke through tbe fifth floor :about four or five feet south of tbe scuttle. It communicated instantly with tbe banging paper and spread so rapidly that it almost immediately cut off those in front from access to tbe back room, tbe ■stairs and tbe iron door. Of those in tbe front room, one only escaped through the iron door and one went down the stairs. All the others who were in the front room were lost. All who got upon the roof of Tifft’s shop were saved, and none were lost who were on any other floor than the fifth. An ordinance of the city* authorized by the charter (Laws 1870, p. 1180, ch. 519, § 8, sub. 4), requires that “ every building more than one story in height, in the city, should have a scuttle through the roof and a convenient and suitable .stairway or ladder leading to the same.”

"We are of the opinion that the evidence required the submission to the jury of the question whether the omission to provide a suitr able and convenient means of access to the scuttle was negligence on the part of the defendants, and Avhether such omission, if negligent, caused the death of the intestate.

The respondents’ counsel suggests that the ordinance referred to-was intended rather to provide for firemen a means of access to the roof than a means of escape to those within the building in case of fire. However that may be, we think that independently of the ordinance, the question was presented whether, in view of all the circumstances shown by the evidence, the defendants had used due care in providing suitable means of escape for their employes in case of fire.

It is also suggested that the evidence shows affirmatively that if there had been a stairway or ladder leading to the scuttle the intestate could not have escaped that way by reason of the fact that the fire was immediately communicated to the paper hanging underneath the scuttle. Hut in that case it would have been for the jury to say whether the respondents were not required, in the exercise of due care, to so place the drying paper as to leave the passage to the scuttle accessible in case of fire, and whether their omission to do so was negligent.

It is contended by the respondents that the deceased entered the-employment of the defendants with full knowledge of the condition of the building, and he must therefore be presumed to have taken-the risks arising from such condition, and for that reason cannot recover. Doubtless the general rule is that the employe loses the right of action when he voluntarily and unnecessarily puts himself in a place of danger. (Whart.. on Neg., § 215.) So, too, it has been held that if a servant accepts service with knowledge of the character and position of structures from wbicb employes might be liable to receive injuries, he cannot call upon the master to male alterations, or in case of injury hold him liable. (Gibson v. Erie R. R. Co., 63 N. Y., 449; Owen v. N. Y. C. R. R. Co., 1 Lans., 108.) But those rules apply only to the natural and ordinary risks incident to the work in which the servant engages, and the perils which in legal contemplation are presumed to be adjusted in the stipulated compensation. The fact that the intestate knew that there was no staircase or ladder leading to the scuttle was not, under the circumstances and as matter of law, conclusive evidence of want of due care on his part. As was said by Mr. Justice Byles, in Clarke v. Holmes (7 Hurlst. & Nor., 937), “ a servant knowing the facts may be utterly ignorant of the risks. ” It was held in Coombs v. New Bedford Cordage Company (102 Mass., 572) that “the fact that very near where a workman is voluntarily employed in a manufactory, machinery not connected with his work is in motion, the dangerous nature of which is visible and constant, is not conclusive that he has taken on himself the risk of being injured by it, in modification of the implied contract of his employer to provide for him a reasonably safe place in which to do his work; and if through inattention to the danger he meets with such an injury while doing his work and sues his employer therefor, the questions whether he met with it with due care on his own part, and by reason of the neglect of Ms employer to give him suitable notice of the danger, are for the jury.”

In this case the danger from which the injury to the intestate resulted was not a natural and ordinary risk incident to the work in which he engaged. His employment did not require him to be at all times on the fifth floor, but it took him into all parts of the building. Assuming that he was in the fifth story when the fire broke out, the fact that he was there at that time was, in a measure, accidental. Nor can it be presumed, as matter of law, that this lad, nineteen years old, when he entered the employment of the defendants, took into consideration the risk of the fatal disaster that after-wards befell him, and that his compensation was measured accordingly. We think that under the circumstances the question whether the intestate took the risk of the danger referred to was one of fact to be decided by the jury.

The respondents’ counsel contends that as the burden is on the plaintiff of showing that there was no want of due care on the part of the deceased, and there is no proof of the circumstances immedidtely attending his death, the plaintiff was properly nonsuited. Upon the assumption that the deceased was in the front part of the fifth story when the fire broke out, the proof in the case justifies the inference that he came to his death by reason of the fact that hé had no way. of escape, and not from any want of care on his part. In Johnson v. The Hudson River Railroad Company (20 N. Y., 65), which was an action for negligently causing the death of plaintiff’s intestate, where there was no witness of the occurrence, it was held that the absence of fault on the part of the deceased may be inferred from the circumstanqes in connection with the ordinary habits, conduct and 'm'otives of men; that the character of the defendant’s negligence may be such as pri/ma facie to prove the whole issue, and the known indisposition of men needlessly to expose themselves to difficulty -and danger is to be considered in determining the question. The same doctrine is recognized in many later cases, among which are Morrison v. The New York Central and Hudson River Railroad Company (63 N. Y., 643); Willy v. Mulledy (78 id., 310); Hart v. Hudson River Bridge Company (80 id., 622); Mahony v. City of Buffalo (decided by this court in December, 1881, and not reported; S. C., affirmed, 91 N. Y., 657), and Cassidy v. Angell (12 R. I., 447). The question is not free from doubt, but on the whole we are of the opinion that the case should have been submitted to the jury.

The judgment should be reversed and a new trial ordered, costs to abide event.

Hardin, J., concurred; Barker, J., not voting.

So ordered.


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    LYDIA A. GREEN, Appellant, v. DENNIS C. WAITE, Respondent.

      Pleadings in Justices’ Oowrts — when matter set up. in an answer constitutes a defense and not a counter-claim.

    The complaint in an action in a Justice’s Court demanded a judgment for thirty-one dollars and fifty cents. The answer after setting up a general denial and. four separate defenses proceeded: “ The said defendant, for a fifth and further answer and defense, alleges that said plaintiff is indebted to him in the sum of $100 for money paid to, and advanced to and for, the plaintiff’s use, and for goods sold and delivered to her at divers times.” It then demanded judgment, that the complaint be dismissed, with costs.

      Reid, that the matter set up as a fifth defense constituted a defense and not a counter-claim, and did not entitle the plaintiff to a new trial upon an appeal taken by her to the County Court.
    Appeal from an order of the J efferson County Court denying the plaintiff a new trial in. that court and striking the cause from-the calendar.

      O’Brien, Emerson & Ward, for the appellant.

      Lansing c& Rogers, for the respondent.
   Smith, P. J.:

The plaintiff sued the defendant in a Justice’s Court on contract for work done by her for the defendant. The justice having rendered a judgment in favor of the defendant for costs, the plaintiff appealed to the County Court, and in her notice of appeal demanded a new trial in the appellate court, which was refused by the order appealed from.

The only question is whether the sum for which either party demanded judgment in the Justices’ Court exceeds fifty dollars. The pleadings were in writing. The sum for which judgment was demanded in the complaint was thirty-one dollars and fifty cents besides costs. The answer contained a general denial and four other defenses separately stated. The fifth defense, which is the one upon which the question arises, is as follows: “The said defendant, for a fifth and further answer and defense, alleges that said plaintiff is indebted to him in the sum of $100 for money paid to and advanced to and for the plaintiff’s use, and for goods sold and delivered to her .at divers times within the past six years.” The answer concluded as follows: Wherefore the defendant demands judgment that said complaint be dismissed, with costs.”

The appellant’s counsel contends that the fifth clause sets up a counter-claim for $100. We think it does not. The matters set up therein are distinctly alleged as a defense, and the defendant does not in any part of his answer demand judgment in his favor for any sum whatever. It is true that by the Code of Civil Procedure a pleading in a Justice’s Court is not required to be in any particular form. (Sec. 2940.) But the same section requires it to be so expressed as to enable a person of common understanding to know what is intended. (Id.) Even where a party counts upon .an account or an instrument for the payment of money only, as he may do under' section 2941, by simply delivering it, or a copy of it, to the court and stating that there is due to him thereon from the adverse party a specified sum, he must claim either to “ recover ” or to “ set off ” such sum.

It has been held frequently in courts of record that where matter which may constitute either a defense or a counter-claim is pleaded simply as a defense, or without designating it either as a defense or a counter-claim, it will be treated as a defense merely. (Burrall v. De Groot, 5 Duer, 379; Bates v. Rosekrans, 37 N. Y., 409; Burke v. Thorne, 44 Barb., 363; Equitable Life Ass. Soc. v. Cuyler, 12 Hun, 247; S. C., affirmed, 75 N. Y., 511.)

We think the same rule should apply in a Justice’s Court; and .although no particular form is required there, yet if in a like case the pleader intends the matter set up as a counter-claim he should so frame his pleading as that such intent will be apparent to a person ■of common understanding. In this case the matter is set up as a defense and not as a counter-claim, and it must be regarded as •a defense only. It follows that the plaintiff was not entitled 'to a new trial in the County Court.

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

Hardin and Barker, JJ., concurred.

So ordered.


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    DAVID JOHNSON, Appellant, v. MARCUS FREW, Respondent.

      Sale procured by fraudulent representations — right of the vendor to rescind without returning what he has received, where the vendee has absconded — election of remedies — what acts do not constitute one as a matter of law.

    The plaintiff was induced by the fraudulent representations of one Galitz to sell to him a harness for the price of thirty-six dollars, of which amount Galitz at the time paid eight dollars and seventy cents. Some ten days afterwards, Galitz having absconded, the plaintiff and a constable went to the railroad station and took the harness from a box they there found addressed to Galitz at Chicago. Before so doing' the plaintiff had procured an attachment from a justice of the peace upon the ground that Galitz was indebted to him for the unpaid portion of the purchase-price, which attachment the constable had with him when the harness was taken.
    The harness was re-taken in an action of replevin brought by a constable who had, prior to the plaintiff’s taking it, levied upon it under an execution issued upon a judgment recovered against Galitz by one Rink.

      Reid, that the plaintiff was entitled to rescind the sale and retake the harness, and that as Galitz had absconded and left no one authorized to act for him, such rescission could be made without restoring the portion of the purchase-price which the plaintiff had received.
    That as no summons had been issued, nor any action been commenced against Galitz to recover the balance of the purchase-price, the attachment taken out by the plaintiff was void, and the procuring of it by the plaintiff could not be treated as an election on his part to affirm the contract of sale and so prevent him from rescinding it.
    That the affidavits of the plaintiff and the proceedings taken by him under the attachment only raised a question of fact, as to whether or not he intended to affirm the contract.
    Appeal from a judgment of the Cattaraugus County Court reversing a justice’s judgment.

      F. 8. Smith, for the appellant.

      Nash ds Lincoln, for the respondent.
   Smith, P. J.:

This action was commenced in the Justices’ Court to recover possession of a harness which one Galitz fraudulently induced the plaintiff to sell and deliver to him on credit. The price of the har•ness was thirty-six dollars, and Galitz paid eight dollars and seventy cents towards it at the time of the purchase. Some ten days after the purchase Galitz absconded, and the plaintiff with one Quant, a constable, went to the railroad station at Cattaraugus and there found the harness boxed up with other things addressed to Galitz at Chicago. The plaintiff, with the assistance of Quant, opened the box, took out the harness and carried it to his shop. Before doing so he procured an attachment from a justice of the peace upon an affidavit alleging, among other things, that Galitz was indebted to him for the unpaid portion of the purchase-price of the harness, which attachment Quant had with him when the harness was taken from the depot.

Shortly before these proceedings on the part of the plaintiff, Holcomb, another constable, had levied on the box and its contents by virtue of an execution issued upon a judgment against Galitz in favor of one Rink, and after the taking by the plaintiff and Quant, Holcomb brought replevin for the harness against Quant and employed the present defendant Frew to serve the papers in that action, who accordingly took the harness from the plaintiff’s possession. Thereupon the plaintiff brought this action.

The plaintiff did not at any time restore, or offer to restore, what he received from Galitz towards the purchase-price of the harness. There is no evidence that when the plaintiff took out the attachment a summons or other process was issued, or a suit was commenced. At that time the credit given on the purchase of the harness had not expired. The jury in the Justices’ Court rendered a verdict in favor of the plaintiff, which was reversed by the County Court on the ground that the plaintiff not having restored what he had received could not disaffirm the contract.

The appellant’s counsel concedes the general rule that a party who seeks to disaffirm his contract must restore whatever he has received under it, but he contends that the present case is an exception to the rule for- the reason that the fraudulent vendee by absconding had made a restoration to him impracticable. Clearly the plaintiff could not restore the money to the vendee by reason of his having fled to parts unknown; and if there was no other person to whom restoration could be made it would be unreasonable and unjust to hold that the fraudulent vendee by his own act has deprived the vendor of the right of rescission. "Whether restoration could have been made to any person depends upon whether any other person was subrogated in the place of the vendee or had authority to receive the money for him.

The respondent’s counsel contends that the plaintiff should have paid what he received to the defendant in this action, or brought it into court at the trial for his benefit, and that seems to have been the opinion of the County Court.

But, so far as appears, the only person entitled to receive the money is Galitz, and as he is not a party to the suit, bringing the money into court and leaving it there, would not be a restoration to him, nor would it affect his rights nor prevent him from recovering it of the plaintiff in a proper action. Nor could the judgment creditor of Galitz levy on it if it were paid into court, as it would not be the property of Galitz till he had received it. (Betts v. Hoyt, 19 Barb., 412; Carroll v. Cone, 40 id., 220; Baker v. Kenworthy, 41 N. Y., 215.) Nor would payment to the defendant be a restoration of the money, for the defendant has no authority to receive the money for Galitz, nor is he subrogated in his place. He is not in the position of a general assignee of the fraudulent vendee. His levy did not transfer the title, and whatever title' Galitz had remains in him subject to the lien created by the levy. The reason why payment to the general assignee of a fraudulent vendee is effectual as a restoration is that he is entitled to all the property of his assignor for the benefit of creditors. (Stevens v. Hyde, 32 Barb., 171, 174.) As the act of the vendee had put it out of the power of the plaintiff to make restoration, the lack of it should not defeat his action. Although the money is in his hands, it is there through no default of his and he holds it for the use of Galitz.

It is contended by the appellant’s counsel that the plaintiff by his attachment proceeding elected to affirm the contract. That would be the case if the attachment was issued in an action which had been prosecuted to judgment or was pending at the time of the trial. But of that there is no proof. Under the present Code an attachment can only issue out of a Justice’s Court as a provisional remedy in an action. There is no evidence that an action was commenced, and if not the attachment was void. It was not,, therefore, conclusive against the plaintiff as matter of lajv. At most the plaintiff’s affidavit and his proceedings under the attachment, even if he be assumed to take the harness by virtue of it, raised a question of fact as to whether he affirmed the contract. (Green v. Russell, 5 Hill, 183.) But the question whether he assumed to take the harness by virtue of the attachment, or whether he took it as his own in rescission of the contract, was one in respect to which the evidence was conflicting, and hy the verdict all disputed questions of fact were settled in the plaintiff’s favor.

The testimony of the plaintiff in respect' to the directions which were given to the constable, Holcomb, as to how he should proceed in taking the harness seems to have been within the bounds of a legitimate cross-examination upon a topic introduced hy the defendant upon his examination of the witness.

We think the judgment of the County Court should be reversed and that of the justice affirmed.

Hardin and Barker, JJ., concurred.

So ordered.