author: Bradley, J.

text:
    M. Francis Wager, App’lt, v. Thomas B. Link, Resp't.

      (Court of Appeals, Second Division,

      Filed May 31, 1892.)

    Mortgage—Covenant by subsequent grantee to assume—Judgmenteor debtcebncy.
    One S. gave a purchase money mortgage to plaintiff, and subsequently-conveyed by quit claim deed to K., who gave a bond to plaintiff as collateral security, which required the exhaustion of the remedy against the premises before suing upon such bond. Thereafter K. conveyed to defendant by warranty deed containing an assumption of the mortgage. In an action of foreclosure thereof, Held, that defendant was chargeable in the action for any deficiency that might arise upon such foreclosure and sale.
    Appeal from judgment entered on order of, the general term of the supreme court in the third judicial department, affirming-judgment entered on report of referee.
    The action was brought against Jennie E. Sully, Edward P. Sully, the defendant Link and others to foreclose a mortgage of date February 10, 1869, made by the defendants Sully to the plaintiff upon certain land to secure the payment of $5,750 in fifteen years from April 1, 1869, and interest semi-annually according to the condition of a bond of the same date made by those defendants. The bond and mortgage were made to secure the-payment of that amount of the purchase money of the land then, conveyed by the plaintiff to the defendant Jennie Sully by warranty deed, consideration $8,750. On June 16, 1878, the defendants Sully conveyed the premises to Giles B. Kellogg by quitclaim deed, consideration $2,500. And on February 17, 1874,. Kellogg made and delivered to the plaintiff his bond, of which the following is a copy:
    “ Know all men by these presents, that I, Giles B. Kellogg, of the city of Troy, in the county of Bensselaer, and state of New York, the obligor herein, am held and firmly bound unto M. Francis Wager of the same place, the said obligee herein, in the .sum of $10,000, to be paid to the said obligee, or to his certain ■attorney, executors, administrators or assigns. For which payment well and truly to be made 1 bind myself and my heirs, executors or administrators jointly and severally firmly by these presents. Sealed this 17th day of February, 1874.
    £l The condition of this obligation is such that if the above bo unden obligor, his heirs, executors or administrators, shall and do well and truly pay, or cause to be paid, unto the above named obligee, his certain attorney, executors, administrators or assigns, the sum of $5,750 in fifteen years from April 1, 1869, with interest payable semi-annually from October 1, 1872, on each and •every first day of April and October, witli the privilege to the said obligor of paying not less than $500 nor more than $1,000 on any first day of October on giving three months previous notice of his intention so to do (this bond being given as collateral to a bond and mortgage for $5,750, executed by Jennie B. Sully ■and Edward P. Sully, her husband, to said obligee, dated February 10, 1869, and the said obligee having become the owner of the mortgaged premises; in casé of default in the payment of said interest or principal, the said obligor, or his assigns, shall exhaust his remedy against the mortgaged premises before enforcing this bond) without fraud or delay, then the preceding obligation to be void, otherwise to remain in full force and virtue.
    “ Giles B. Kellogg. [l. s.] ”
    By warranty deed of date March 80, 1875, consideration .$10,000, Kellogg and his wife conveyed the premises to the defendant Link, “subject to the payment by the party of the second part of a mortgage on said premises held and owned bylvi. Francis Wager for $5,750, with interest from April 1,1875, payable semiannually, which said mortgage, with interest as aforesaid, the said party of the second part hereby assumes and agrees to pay as a part of the purchase money of said premises, and the amount of which mortgage constitutes a part of the said sum of $10,000, the •consideration named in this deed.”
    As part of the relief sought by the plaintiff, he demanded judgment against the defendant Link for any deficiency that might remain after application of the proceeds of sale to the payment of the amount due on the mortgage. Kellogg was not made a party. None of the defendants other than Link defended. 'The referee determined that the defendant Link was not chargeable for deficiency. And judgment was entered for foreclosure of the mortgage by sale of the premises, and in favor of the defendant Link upon the issue made by his answer.

      K B. Harder and George B. Donnan, for app’lt; Charles M Patterson, for resp’t.

       Reversing 34 St. Rep., 711.

   Bradley, J.

The question here is, whether or not the relation •of the defendant Link to the obligation to pay the mortgage debt, or any deficiency which would remain after application to it of ■the proceeds of sale, was such as to support the charge of liability made and relief sought against him-in-this action. The conveyance of the premises by the Sullys to Kellogg was accompanied by no undertaking on his part to pay the mortgage made by them to the plaintiff. Afterwards, and while he held the title, his liability was created by his bond given to the plaintiff, and by its terms the land was made the primary fund, and his personal liability was dependent upon and for such deficiency. It is for that-reason urged that Kellogg never undertook to pay the mortgage1 debt, and as the consequence no such obligation was assumed by the defendant. So far as the obligation in such case is depend entupen the doctrine of equitable subrogation the liability of the grantor is essential to the creation of that of the grantee by the terms of the assumption on his part in the granting instrument Trotter v. Hughes, 12 N. Y., 74; Vrooman v. Turner, 69 id., 280. And it is also essential that the deed be effectual to convey the title to the grantee, else it may be said that the relation of principal and surety between the parties to the deed does not arise, because the grantee takes nothing from his grantor in support of the-assumption for that purpose or which as between them places such parties in that relation to the debt. Oarnsey v. Rogers, 47 N. Y.,. 233; Pardee v. Treat, 82 id., 385; Root v. Wright, 84 id., 72; Dunning v.Leavitt, 85 id., 30.

The deed from Kellogg to the defendant conveyed the title, and the latter by its terms, ample for the purpose, assumed the payment of the mortgage. This may be treated as indemnity to his grantor against any liability he had before then incurred in that respect. And it is not important for this purpose that the 'obligation of Kellogg arose out of an assumption subsequent to instead of at the time he took the title which he conveyed to the defendant. His liability was to pay so much of the mortgage-debt as should constitute the deficiency. And for the purpose of charging him to that extent he may properly have been made a party defendant in the foreclosure action. Luce v. Hinds, Clarke, 453; Curtis v. Tyler, 9 Paige, 432.

Although this may be so as against Kellogg it is urged that the undertaking of the defendant is not available to the plaintiff because (1), the grantor of the defendant was not the principal debtor, and (2), it does not appear that the defendant’s undertaking in the deed was made or intended for the benefit of the plaintiff. The latter proposition, which will have further consideration, has no necessary application to the subject of equitable subrogation, through which the creditor takes the benefit of' securities received by the person having, in respect to the debt, the relation of surety to him from whom they are taken. Then for the purposes of the remedy they are treated as trusts for the further security of the debt, and the relief as to them in equity is by way of the execution of such trusts in behalf of- the creditor. Vail v. Foster, 4 N. Y., 312. The defendant’s grantor-holding the title to the property which was charged with the-lien of the mortgage, added to it his personal liability for the deficiency. This was furnished by his bond to the plaintiff, and so-far as appears by the findings of the referee and indicated by his refusal to find to the contrary, the bond was given pursuant to an understanding exclusively between him and the plaintiff and lor the benefit of the latter and without any undertaking to or request of the Sullys to do so. It was in practical effect an obligation of Kellogg that the entire mortgage debt should be paid, treating the premises so held by him and covered by the mortgage as the primary fund for the purpose.

When the defendant took from Kellogg the conveyance of the property and assumed the payment of the mortgage debt, for which he reserved an equivalent portion of the consideration, his obligation as between him and his grantor was primary so far as the latter was personally liable for it. This, as it was, may be regarded as indemnity to him for the obligation he had voluntarily assumed in respect to the debt, and to that extent as between them they had the relation of principal and surety and for the purpose of relief founded upon the doctrine of equitable subrogation they may be so treated by the plaintiff. Halsey v. Reed, 9 Paige, 446. Ami within that principle the defendant was chargeable with the deficiency and for such purpose was properly made a party defendant in this action.

The action as against the defendant may, we think, be maintained on the broader ground that his promise was made to Kellogg for the benefit of the plaintiff, and. bad the requisite consideration for its support. There was no qualification of the liability assumed by him, making it dependent upon any condition. His grantor placed in his hands a fund treated equal to the amount of the mortgage debt, and upon that consideration the assumption appearing by the terms of the deed was made, and by it the defendant agreed to pay the mortgage “ held and owned ” by the plaintiff. This appeal's to have been and it was a promise made by the defendant to Kellogg for the benefit of the plaintiff. It was made upon a consideration by which he was equipped with a fund for the purpose,, and its performance would discharge his grantor from a personal obligation assumed by him to the plaintiff. This would seem to bring the defendant’s undertaking or promise thus made within the principle requisite to the support of the liability of the defendant to the plaintiff. Lawrence v. Fox, 20 N. Y., 268; Burr v. Beers, 24 id., 178; Thorp v. Keolcuk Coal Co., 48 id., 253; Schley v. Fryer, 100 id., 71.

It would have been otherwise if the title to the land had not passed to the defendant. But as it did, the obligation of the grantor in respect to the mortgage debt as between them became that of the defendant, his grantee. Pardee v. Treat, 82 N. Y., 385.

The suggestion that the defendant did not intend that his covenant should enure to the benefit of the plaintiff because when made he was not advised of the bond of Kellogg to the plaintiff, may be met by the fact that his undertaking was to pay the mortgage of which the plaintiff was represented as the holder and owner, and it was broad enough to embrace the entire amount in the event the liability of his grantor had been such as to make the covenant essentially necessary for that purpose.

The conclusion is that defendant was chargeable in the actian for any deficiency that might arise from the foreclosure and sale.

The appeal to this court, so far as it was from the judgment entered on the decision of the general term, was properly taken. In foreclosure actions the payment of a deficiency that may arise is awarded-by the judgment entered prior to ttie sale, and by which it is directed. The judgment entered upon the report of the referee in the present case was not an interlocutory but a final adjudication for the purposes of the question raised here in that respect. Code, §§ 1626, 1627; Morris v. Morange, 38 N. Y., 172. And the question of liability for deficiency must be determined by the judgment of foreclosure and sale. The objection raised to the appeal is, therefore, not well taken. The judgment in favor of the defendant Link against the plaintiff should be reversed and a new trial granted of the issue raised by his answer^, costs to abide the event.

All concur, except Landon, J., not sitting.


source: Caselaw Access Project

author: Follett, Ch. J.

license: Public Domain

text:
    Edward A. Robertson et al., App’lts, v. Lewis S. Sayre, Resp’t.

      (Court of Appeals, Second Division,

      Filed May 31, 1892.)

    Trusts—Property taken in the name op another to defraud creditors. —Heirs op debtor hate no legal estate therein.
    In 1841 R. purchased two lots at a foreclosure sale, paying fifty dollars, but being financially embarrassed he took the deed in the name of his-friend M. When É. told M. of the transaction the latter was offended and the estrangement continued until R.’s death in 1851. In 1881M. conveyed the lots to defendant by quit-claim deed recorded in 1883, the latter claiming to have an interest therein, and agreeing that if any of R.’s heirs should turn up he would help them to the extent of one or two hundred dollars. The lots were worth $10,000, but this M. did not know. Held, that as R. procured these lots to he conveyed to M. to defraud his creditors he had no legal estate in them which could he reached by execution or which on his death descended to his heirs.
    Appeal from a j udgment of the general term of the supreme-court of the first department, which affirmed a judgment dismissing the complaint on the merits entered on the decision of a. referee.
    In January, 1841, David H. Robertson purchased, in the name of Thomas H. H. Messenger, at a mortgage foreclosure sale, two-lots in Harlem for fifty dollars. January 18, 1841, the master in chancery conveyed the premises to Messenger by a deed which was recorded January 19, 1841. Robertson made the purchase, took the deed, procured it to be recorded, and paid the consideration, fifty dollars, without the knowledge or authority of the-grantee. Before the transaction Robertson and Messenger had been friends, but no business relations had existed between them. Shortly after the deed was recorded Robertson informed Messenger of the transaction, who was greatly offended, and their pre- -■ vious friendly relations were severed, and so continued until the death of Robertson, which occurred May 2, 1851. The referee found that at the time of the purchase Robertson was financially embarrassed, and that the purchase was made and the deed taken in the name of Messenger for the purpose of hindering and delaying the creditors of Eobertson. Neither Eobertson nor Messenger took possession of said lots, nor did either pay the taxes thereon or exercise any acts of ownership, and that the plaintiffs, who are the heirs-at-law of Eobertson, have never been in possession of the premises or exercised acts of ownership over them.
    November 25, 1881, Messenger conveyed the two lots "to the defendant by a quit-claim deed which was duly recorded July 14, 1883. Messenger had forgotten the fact that these lots had been conveyed to him, but on being reminded of it said that he supposed he had no valuable interest in them because he supposed they had been eaten up by and sold for taxes during the period of forty years. The defendant represented to Messenger that he had some interest in the property, but what representation was made or whether it was true or false was not found by the referee and none of the evidence is contained in the record before the court.
    The referee found that Messenger knew that David H. Eobertson was dead and that he left children who were living, but did not know where they resided, and that he conveyed the lots to the defendant upon his oral agreement that if any of the Eobertson heirs should turn up in distress that defendant should help them to the extent of one or two hundred dollars. It was further found that Messenger would have conveyed the premises to the heirs of Eobertson upon request, and that at the time they were conveyed to the defendant they were worth $10,000, but that their value was unknown to Messenger. Since the lots were conveyed to the defendant he has redeemed them from the tax sales and has paid considerable sums, the amount not appearing, in discharge of the taxes in arrear. The plaintiffs seek an accounting, and that the defendant be compelled to pay to the plaintiffs the value of the lots, less such sums as the defendant may have expended in the payment of taxes and improvements.

      V. Van Dyche, for app’lts; B. D. Penfield, for resp’t.
   Follett, Ch. J.

The learned counsel for the plaintiffs insists

in his first point that title to the lots was never vested in Messenger, because he says a valid delivery of the deed and an acceptance of it by him were not proved. The plaintiffs are not in a position to raise this question, for they alleged in the fourth division of their complaint that the legal title to the lots in question was in Messenger until he conveyed them to the defendant. This allegation was not controverted by the answer. It was not found as a fact nor as a conclusion of law that there was not a valid delivery of the deed from the master in chancery to Messenger, nor was the referee requested by either party to so find or hold.

But if this position could be maintained it would not aid the plaintiffs, for the result would be that the title of the owner of the fee when the mortgage was foreclosed was not divested by the master’s deed, and both the plaintiffs and defendant would be without title to the lots. David H. Robertson having procured these lots to be conveyed to Messenger for the purpose of defrauding his creditors, had no legal estate in them which could be reached by execution, Garfield v. Hatmaker, 15 N. Y., 475, or which on his death descended to his heirs. Moseley v. Moseley, 15 id., 334; Wait on Fraud. Convey., § 121. See, also, 1 R. S., 728, §§50, 51, 52; Underwood v. Sutcliffe, 77 N. Y., 58; Brewster v. Power, 10 Paige, 562 ; Bater v. Lidgerwood Manf. Co., 50 Hun, 420; 20 St. Rep., 778; Hamilton v. Cone, 99 Mass., 478.

This rule is a penalty imposed by the law for the prevention of frauds and for the protection of subsequent purchasers (Rev. notes), and the reason for its application is not weakened in case the grantee, as in the case at bar, was not a participant in the fraud.

It is clear that neither Robertson in his lifetime, nor his heirs -since his death, could have recovered the land or its proceeds from Messenger, or from his grantee by any legal or equitable remedy. See the authorities above cited. It is alleged in the complaint •that David H. Robertson was the owner of the mortgage which was foreclosed, but no such fact was found. On the contrary, the facts found compel the inference that he . had no interest in the mortgage, nor in the land covered by it.

Proceeding on the assumption that the deed to Messenger vested the legal title in him, did the agreement which the learned referee found was made between the defendant and Messenger create a legal or equitable interest in the lots in favor of the plaintiffs, or -did it raise a liability on the part of the defendant in favor of the plaintiffs which can be enforced in this action ? The referee finds: •“He (Messenger) was told by defendant that they (the lots) had-been sold for taxes, but could be redeemed; he (Messenger) then knew that David H. Robertson and his oldest son and daughter were dead, and that the other children were scattered, but living at places unknown to him; and after some conversation touching ■a supposed interest of defendant in the lots (and which is referred to in the deed) he said to defendant, “ I will tell you what I will do; if any of Mr. Robertson’s heirs should turn up in distress, I will transfer this property to you, providing you will help them;” •to which defendant said, “Agreed; I will do so; ” and when asked the amount, said Messenger named one or two hundred dollars, that being about the value of the lots when they came to his hands.

On that occasion a quit-claim deed was made and executed by Messenger to the defendant granting all his right, title and interest in the lots, under which deed defendant holds the same, for which no actual consideration was paid, but the sole consideration was the promise herein above stated.

This action was not brought to enforce the agreement, nor do the findings show the existence of facts creating a liability under it. There is no finding, or request to find, that the defendant procured the conveyance to be made by the false representations •of himself or of his attorney. We think the facts found do not establish any liability on the part of the defendant to the plaintiffs •which, can be enforced in this action. As before remarked, the' evidence given on the trial is not contained in the record, and so this court has no means of ascertaining the merits of the controversy except as disclosed by the decision of the referee. For some reason, which we must assume was justified by the evidence, the learned referee refused to allow the defendant costs, and no costs were allowed him at general term. Following the views of the courts below upon the question of costs, the defendant will be denied them in this court.

Judgment affirmed, without costs.

All concur.

       Affirming 25 St. Rep., 449.


author: Landon, J.

text:
    Robert J. Smith el al., Resp’ts, v. Margaret Smith, App’lt.

      (Court of Appeals, Second Division,

      Filed May 31, 1892.)

    Deed—Fraud in obtaining execution of.
    Plaintiffs were tenants in common with the defendant, their aunt, of certain real estate, and at the request of defendant and one Tilton, an attorney, signed, without reading, a deed of bargain and sale, conveying it to the defendant for an unpaid nominal consideration, the defendant and said attorney falsely representing to plaintiffs that said deed was a power of attorney to collect the rents of said property. Held, that a judgment adjudging the conveyance void, and directing its cancellation, was right, as the plaintiffs' action or omission was the natural result of their relation with the defendant, with whom two of them had lived, and who had provided for them, and the impulse of their affection for and confidence in her.
    Appeal from the judgment of the general term of the city court of Brooklyn, affirming a judgment of the special term of that court adjudging void a conveyance of real estate made and delivered by the plaintiffs to the defendant and directing the cancellation thereof.

      Edw. W. & Johnston, for app’lt; Horace Graves, for resp’ts.

       Affirming 26 St. Rep., 692.

   Landon, J.

April 24, 1880, the plaintiffs together with their sister Mary executed and delivered to the defendant, their aunt, Margaret Smith, a deed of bargain and sale of the premises described in the complaint for the unpaid nominal consideration of one dollar.

The plaintiffs and their sister Mary were the sole heirs of their mother Hannah Smith, who died in 1876, intestate. Hannah Smith and the defendant were sisters and with their brother Anthony, said to be an alien and residing in Ireland (but whose rights are not here involved), were the sole heirs of their sister Ann McOool who died in the city of Brooklyn in 1875, intestate, seized as owner in fee of the premises in question.

Thus at the date of the conveyance the plaintiffs were tenants in common with the defendant and with their sister, and possibly with their uncle Anthony, of the premises.

The trial court found that on or about the 24th day of April, 1880, the defendant and one Tilton, an attorney at law, at the request of the defendant, presented to the plaintiffs and said Mary Ann Smith (their sister) for signature and execution a deed of' bargain and sale conveying said real property to the defendant. That on the presentation of said deed to the plaintiffs the said defendant and the said Tilton knowingly and falsely represented to the plaintiffs that the said deed was an instrument which gave the defendant only the power to collect the rents of said property, ■and by said representation, to said Tilton and defendant known to be false, induced said plaintiffs to sign said instrument without reading it.”

<rThat plaintiffs signed and executed said deed without reading it, relying on the representations of said Tilton and defendant Smith, and believing it, as represented as aforesaid, to be only a power of attorney to collect rents, and relying on the professional knowledge of said Tilton and the affection and good will of the defendant as their aunt, and that the defendant and said Tilton conspired to deceive the plaintiffs and fraudulently to induce them to sign and execute said deed to defraud the plaintiffs of their title to and interest in said property as heirs-at-law of their mother, Hannah Smith.”

The appellant excepts to these findings as without support in the evidence and contrary to the evidence. The exceptions are not well taken. The representations as found were distinctly testified to by the plaintiffs.

It appears that upon the death of the plaintiffs’ mother, in 18T6, the defendant took sole charge of the premises and collected the rents. Plaintiffs’ father had long been dead, and the defendant, their aunt, who had no children of her own,- took the plaintiff Robert and his sister Mary, both then minors, to her home and provided for them. Defendant’s husband afterwards furnished Robert employment. The plaintiff Thomas provided for himself and lived apart.

Although the trial court found that the defendant did not stand in loco parentis to the plaintiffs, the court could collect from the evidence that they were grateful for the motherly offices she had rendered them, and for her care for their welfare, and that they ■confided in her affection for them. At the time of the execution of the deed Robert was twenty-three years of age and Thomas twenty-seven. Just what their rights were in the premises they did not know, but as their aunt had no children, it is not difficult to believe the testimony of one of the plaintiffs that he supposed “ there might be something when the old folks died.”

The plaintiffs knew and respected the attorney who accompanied the defendant, blunder such circumstances the testimony of the plaintiffs that they did not distrust their aunt and were willing to comply with the request they understood her to make, is credible.

That she should have the legal power to collect the rents seemed ' reasonable: but that they should give their interest in'this property to their aunt, or that she should ask them to do so, seems not to have occurred to their minds. True, they were able to read and might have read the instrument if they bad wished to do so. They had intelligence enough to understand the effect of the deed if they had read it, but the circumstances under which they were approached., and the representations made, and their relations to their aunt and confidence in her, put them off their guard; if, indeed, it could have occurred to them to be on their guard against her. They were thus prevented from reading the instrument,

The learned counsel for the defendant cites numerous cases, mostly from other states, to support his contention that plaintiffs’ negligence in not reading the deed defeats their appeal to equity to relieve them from it. The law of this state, as stated in Albany City Savings Instn. v. Burdick, 87 N. Y., 40, is not so harsh as in •some of the cases cited.

It does not in cases like this impute inexcusable negligence to that omission of vigilance and care which is procured by the fraud •of the wrongdoer.

Hegligence is not an apt term to define the plaintiffs’ share in the transaction. The plaintiff’s action or omission was the natural result of their relations with the defendant, the impulse of their affection and confidence. They were prompt to confer the favor the words of their aunt seemed to solicit. Her request excited no suspicion and they entertained none. What she asked they thought was right because it was she that asked it, and because she was supported by the attorney whom they respected, and whose presence and participation were the assurance that it was legally right.

In the case cited the defendant was sought to be charged with the deficiency in foreclosure because of a clause in her deed from the mortgagor reciting the mortgage and that she assumed it and agreed to pay it. She alleged and offered to prove that she had not assumed or agreed to pay it, and that her grantor, to whom ■ she entrusted the preparation of the deed, had fraudulently pro•cured the clause to be inserted, and that she accepted the deed without knowledge of the existence of the clause. The general term held that her failure 'to examine the deed and know its contents was such negligence as defeated her prayer for relief against the covenant, but this court reversed the judgment. The court said the defendant “ was not bound to assume that he (the grantor) was practicing a fraud upon her or representing a falsehood, and she cannot be charged with negligence in believing confidently that he was acting in good faith and telling the truth.”

In that case the grantee was dealing at arms length with the grantor without any peculiar circumstances tending to lull vigilance or care, such as fortify this case.

The defendant excepted to several refusals of the court to find us requested. Some of the propositions of fact requested were established by uncontradicted evidence. But a careful examination leads to the conclusion that these facts were not pertinent to any of the issues, and if found as requested could not properly affect the result.

There was no reversible error in the refusal.

The judgment should be affirmed, with costs.

All concur.


author: Vann, J.

text:
    Ralph H. White et al., Resp’ts, v. Samuel Eiseman et al., App’lts.

      (Court of Appeals, Second Division,

      Filed May 31, 1892.)

    1. Partnership—Limited.
    The usual certificate of limited partnership was signed and acknowledged' by the general and special partners of defendant’s firm on August 3, 1888, stating that the contribution of the special partners had been paid in cash. * On the same day the special partners delivered to S., a general partner, their check for $10,000 payable to S. & P., the general partners. The special partners signed the check, deducted the amount thereof from the. balance they had in the bank, and the same was charged on their bank book the following day. The check was certified by the bank the 4th, deposited to the credit of the firm August 5th at 2 p. M., and at 4.45 the certificate and affidavit were filed. The check was paid on the 6th to the-bank in which it had been deposited. Held, that there was no intentional violation of the statute and that the transaction was a substantial compliance therewith.
    2. Same.
    The affidavit is simply evidence of the facts therein stated, and if those-facts are true when such evidence is first used the statute is satisfied, unless some furtive purpose exists when the verification was made.
    3. Same.
    Where the money is actually in the bank to the credit of the special' partner and he gives absolute and final control of it to the general partner, it should be regarded as a payment in cash. The delivery of a certified, check to the payee has this effect.
    Appeal from a judgment of the general term of the supreme court, in the first judicial department, entered on an order made-December 31, 1890, overruling the exceptions of the defendants, and denying their motion for a new trial.
    This action was brought to recover from the defendants, as-general partners composing the firm of Spencer & Perkins, a demand of the plaintiffs against that firm for goods sold and delivered.
    The defendants Eiseman alleged in their answer that said firm: was a limited partnership, composed of themselves as special partners, and of Sidney S. Spencer and George E. Perkins as general, partners.
    On the trial it appeared that a certificate of limited partnership, in the usual form, was signed and acknowledged by the-general and special partners on the 3d of August, 1886. On the same day the special partners delivered to said Spencer their check of even date on a solvent bank, payable to the order of Spencer & Perkins, for $10,000, the amount of their contribution toward the common stock, as stated in the certificate. Samuel Eiseman signed the check, deducted the amount thereof from the balance that he and Moses Eiseman then had on deposit in the bank, and the amount thereof was charged to them on their bank book when it was balanced on the-following day. The check was duly certified by the bank August 4th, and deposited to the credit of the firm August 5th, at two P. M., on which day, at 4.45 P. M., the certificate and. affidavit were filed. The cheek was paid on the 6th of August to the bank in which it had been deposited. The affidavit was made August 3d, the day that the jurat bears date, by Mr. Spencer, who stated therein “ that the sum specified in said certificate to have been contributed by the special partners to the common stock has been actually and in good faith paid in cash.”
    At the close of the evidence the court directed a verdict in favor of the plaintiffs for the amount claimed and the exception of the defendants Eiseman to such direction was overruled by the general term and a judgment directed on the verdict, one of the justices dissenting.

      A. Blumenstiel, for app’lts; Frederick Mabbett, for resp’ts.

       Reversing 35 St. Rep., 468.

   Vann, J.

The primary object of the act authorizing limited partnerships was to encourage those having capital to become partners with those having skill, by limiting the liability of the former to the amount actually contributed to the firm. The next and incidental object was to furnish reasonable protection to those dealing with the concern by requiring certain acts to be done and public notice thereof given, so that all who desired might know the essential features of the arrangement. In order to prevent evasion and fraud, it was provided that any false statement in the certificate or affidavit should render all the partners equally liable. That provision, however, was not designed as a trap to catch the innocent and unwary, but as a bar to shut out the dishonest and fraudulent. While the courts were at first inclined to a strict construction against those thus seeking exemption from the common law liability of partners, the tendency in this state is now toward a liberal construction, so as to accomplish the wise purpose of the act by uniting ca¡jital and labor in business enterprises, without excessive hazard to the former. President, etc., Manhattan Co. v. Laimbeer, 108 N. Y., 578, 582 ; 13 St.-Rep., 869; Fifth Avenue Bank v. Colgate, 120 N. Y., 381, 396; 31 St. Rep., 431; Metropolitan Nat. Bk. v. Palmer, 30 St. Rep., 509 ; Levy v. Lock, 47 How., 394; Lawrence v. Merrifield, 42 Supr. Ct,, 36 ; S. C., 73 N. Y., 590; Ropes v. Colgate, 17 Abb. N. C., 136; 13 Am. & Eng. Encyc. of Law, 807.

The more recent cases regard the statute as remedial in nature .and, looking to substance rather than form, protect those who in good faith substantially comply with the essential requirements. We now have a case before us where nothing of substance was ¡omitted. The defect complained of neither misled nor injured the creditors who seek to take advantage of it. Payment having been made in the usual way practiced by business men, who regard a check with adequate funds behind it as cash, an affidavit was made accordingly, and the good faith of the affiant is questioned by no one. There was no intentional violation of the statute, and the failure in literal compliance consisted of the fact that the affidavit was not technically true when made, although both affidavit and certificate were true when filed.' The exact question, therefore, presented for decision is whether there is substantial compliance if the affidavit and certificate are true, when for the first time, use is made of them for a purpose contemplated by the statute.

In-support of the plaintiffs’ theory we are referred to the case of Durant v. Abendroth, 69 N. Y., 148, where it was said in behalf of the four judges, whose votes were effective, that the certificate and affidavit speak as of the day of their date (p. 152). This, however, was not essential to the decisión, nor was it regarded as-controlling, for in the third sentence following it is said that good faith would be of no avail “ if the payment had not been actually made in cash when the certificate and affidavit were made and filed." As that affidavit was filed on the day it was made, it spoke from the common date of making and filing, and the remark of the court, relied upon by the plaintiffs, is without special significance. In that case the only payment made was by an uncertified check dated eight days after the certificate and affidavit were filed, and it was not paid until the tenth day thereafter, yet this court has pronounced it “ a very stem and technical application of the statute ” to hold the special partner liable even under those circumstances, and 1ms declared that the principle should not be extended. President, etc., v. Laimbeer, supra, p. 589.

According to the statute the partnership is not formed until the-certificate has been recorded and the affidavit filed. 4 E. S., 8tli ed., 2493, § 8. The organization of the firm is completed by the filing of these papers, for the omission of the clerk to record was held in the case last cited not to affect the liability of the special partner. The date of this culminating act, therefore, is of the highest consequence, because it is the time when the firm becomes ready for business and when the safeguards should exist that are designed to protect third parties. As was well said in a recent case: “ It is the act of filing the certificate and affidavit which gives life to the partnership and confers immunity for the debts of the firm upon the special partner, and from that moment those who deal with the partnership become entitled to know the truth as to its formation and from and after that time a wrrong is done to those who deal with it if a false statement is published through, the filing of the certificate. The truth of the statements contained in the certificate is to be determined, therefore, at the time of its being filed with the county clerk. If true at the instant of filing, there is no liability, because, being true at the instant of the creation of the limited partnership, they fulfill the purpose for which the law was enacted.” Ropes v. Colgate, supra, p. 143. We adopt this language as applicable to the case in hand and extend it, in view of the circumstances already stated, to the affidavit filed with the certificate. In reaching this conclusion we are guided by the object of the legislature in passing the statute, which should not be defeated by exalting the letter and subverting the spirit. The' formation of limited partnerships should not be made difficult or dangerous by technical construction. If every statement contained in the papers required to be filed is true at the time of -filing, nothing further is necessary for the protection of creditors, who are thus given- all the information that it was the policy of the statute to furnish. More than this should not be exacted in the absence of an actual intent to deceive. As the special partner cannot make the affidavit himself, (§ 7), he should be protected if it is true when filed, as that is the first use that is made of it and the occasion when he is first charged with the duty of examining it. It is then that it becomes material and then that it must be true, at the peril of general liability if it is untrue. If upon then examining it he found its contents were true, it would be a harsh and unreasonable rule to require him to ascertain, if he could, the precise date when the check was cashed or certified, and comparing it with the date of the jurat, to decide, at the peril of losing all he had, which date preceded the other. The affidavit is simply evidence of the facts therein stated and if those facts are true when such evidence is first used the statute is satisfied, unless some furtive purpose existed when the verification was made. If any business had been done between the making and filing, or if it had been a mere artifice to evade the statute, or if any creditor had been misled by the technical inaccuracy of statement, when viewed from the date of-the jurat, a different question would have been presented from that now before us.

Our reasons for holding that the affidavit was true when filed may be stated in a few words. The check was delivered to the general partners on the third, certified on the fourth, deposited to the credit of the firm on the fifth before the papers were filed, but was not paid to the bank where it was deposited until the sixth.

The general rule relating to the payment of capital by the special partner, as stated by Mr. Bates in his work on Limited Partnerships, § 45, is that “ the fund must be in existence in money and in the sole control of the general partner on the day the partnership is formed, free from-all contingencies except those arising from the proper business of the concern.” This is in substantial accord with the authorities, which hold that payment in goods, notes, or even government bonds, worth more than par, is insufficient. Van Ingen v. Whitman, 62 N. Y., 513 ; Haviland v. Chace, 39 Barb., 283; Haggerty v. Foster, 103 Mass., 17.

In Durant v. Abendroth, supra, the certificate and affidavit were filed December 23, on which day post-dated checks payable December 31 were given by the special to the general partner, but they were not paid until the second of the following month, and it was held that this was not a payment in cash. The court, however, said: “If the special partner had paid the money to the bank to the credit of the general partners, or deposited it with any third party for the express purpose of being paid to the firm at the commencement of the partnership, and had appropriated it to that purpose in such manner as to part with all control over it, there would be much force in the argument that this was a payment of his contribution of capital.” (p. 153.)

In the Metropolitan Nat. Bank v. Sirret, 97 N. Y., 320, the usual papers were filed with the county clerk, a check drawn, , dated and delivered by the special to the general partners, and the check deposited by them in the bank on which it was drawn to the credit of the firm, all on the same day. USTo money was actually paid, but as there was a transfer of credit by the bank from the special partner to.the partnership it was held sufficient.

In the Metropolitan Bank v. Palmer, 30 St. Rep., 509, the delivery of a certified check was held a valid payment within the meaning of the act, because “ the capital was as completely subjected to the control and disposition of the firm as though the money were drawn upon it, and it was in form paid over in cash.” See, also, Lineweaver v. Slagle, 64 Md., 465, and Seibert v. Bakewell, 87 Pa. St, 506.

We think that where the money is actually in the bank to the ci edit of the special partner, and he gives absolute and final control of it to the general partner, it should be regarded as a payment in cash. The delivery of a certified check to the payee has this effect Clews v. Bank of New York, etc., 89 N. Y., 418; Meads v. The Merchants' Bank of Albany, 25 id., 143; The Farmers & Mechanics' Bank v. Butchers & Drover's Bank, 16 id., 125.

While the check in question was delivered by the special partner on the third without certification, it was presented to the bank by the general partner on the fourth and certified while in his hands. In other words, when it was in his power to obtain cash on the check, he procured it to be certified instead of paid, which, as between the firm and the special partners, was a payment, and discharged the latter from liability on the check. The First National Bank of Jersey City v. Leach, 52 N. Y., 350. On the same day the bank charged the amount of the check to the special partners on their bank book, and deducted it from the balance to their credit. • Thus the special partners lost control of the money, the general partners obtained control of it, and there was an absolute, final and irrevocable appropriation of it to the use of the firm on the fourth, or the day before the certificate and affidavit were filed.

We think that the exception taken by the defendants requires a new trial.

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

All concur.


author: Haight, J.

text:
    Patrick J. Flannery, Resp’t, v. Aslan Sahagian, App’lt.

      (Court of Appeals, Second Division,

      Filed May 31, 1892.)

    1. Arbitration—Award—Power or arbitrators.
    As soon as arbitrators have made and delivered their award, they become functus officio. After having once fully exercised their judgment upon the facts submitted to them, and reached a conclusion which they have incorporated into their award, they are not at liberty, at another and subsequent time, to exercise a fresh judgment on the case and alter their award.

      8. Same.
    The parties to a building contract agreed to submit to arbitration a controversy as to the amount due thereunder. The arbitrators, after hearing the parties, declared to defendant that they should award to plaintiff the full amount claimed, and on the same day served upon defendant a report, not acknowledged, that the contractor was entitled to final payment. A. few days after they executed a paper in due form, but dated the same as the former, awarding to the contractor a specified sum, with interest for seven months, upon which judgment was entered. Held, error, as in excess of the powers of the arbitrators
    (Bradley, J., dissents.)
    3. Same—Waiver of arbitrator’s oath.
    After the arbitrators had declared to defendant that they should award plaintiff his claim, he stated that he had a paper which they must swear to, but did not inform them of the nature of the paper, and one of them said they would swear to their award, and did not think it necessary to swear to anything else, and defendant tore up the paper. Held, that this was not a waiver by the appellant of the oath of arbitrators required by § 2369, Code Civil Procedure.
    Appeal from a judgment of the general term, second department, affirming a judgment entered at special term upon an award made by arbitrators, and also from an order of the general term affirming an order of the special term denying the appellant’s motion to vacate the award.

      Joseph F. Daly, for app’lt; F. JL Donoghue, for resp’t.

       Reversing 34 St. Rep., 887.

   Haight, J.

On the 28th day of December, 1889, the plaintiff and defendant entered into an agreement in writing, pursuant to the provisions of the Code of Civil Procedure, to submit their claims and differences with respect to the amount due on a building contract to arbitration.

The affidavit of the respondent is to the effect that on the 30th day of Decembeq 1889, he met the arbitrators at the defendant’s building in his presence, and that he and the defendant were both questioned by the arbitrators about the matters in dispute between them; that they then asked him to.produce the plans and specifications according to which he was to erect the building for the defendant and also the certificate given him by Greorge Eayner, the architect in charge of the erection; that after hearing what he and the defendant had to say and after examining the papers, the arbitrators declared to the defendant that they should award to the plaintiff the full amount claimed by him. Thereupon the defendant stated that he had a paper which they must swear to, but did not inform them of the nature of such paper; that some one or more of the arbitrators made the reply that they would swear to their award, and that they did not think it necessary to swear to anything else; that the defendant then tore up the paper which he had requested them to swear to. It further appeared that on the same day the arbitrators executed and served' upon the defendant a paper, of which the following is a copy:

“Yonkers, FT. Y, December 30, 1889.
“We, the undersigned, Messrs. E. K. Baldwin, James W. Pendergast, F. Durand and J. C. Campbell, Jr., being selected by Messrs. P. J. Flannery and A. Sahagian as a board of arbitrators. do report as follows: We find according to the plans, specifications and certificates issued by the architect that Mr. P. J. Flannery is entitled to his final payment.
“E. K. Baldwin,
“James W. Pendergast,
“ Frederick Durand,
“ J. C. Campbell, Jr.
“ Sworn to before me this 30th ) day of December, 1889. )
“Albro A. Hubbard,
Notary Public,
“Yonkers, N YP

It also appeared that the same arbitrators executed another paper, in form an award, bearing date the 30th day of December, 1889, but acknowledged before Hubbard, as notary piiblic, on the 2d day of January, 1890, the material portions of which are as follows: “Now, therefore, know ye that we, the arbitrators mentioned in the said submission, having heard the proofs and allegations of the respective parties and examined the matters in controversy by them submitted herein, do therefore make this award in writing, that is to say, the said Patrick J. Flannery is entitled to recover of the said Aslan Sahagian the final payment due him on his contract and as certified to by Greorge Rayner, the architect, and that such payment amounts to one thousand three hundred eleven and forty-hundredths dollars and interest thereon for seven months, amounting to $38.64, making a total of $1,350.04.”

Judgment was, upon the motion of the respondent, entered upon the last award and the appellant’s motion to vacate the first award was denied.

There appeal’s to be little if any controversy as to the power of the arbitrators. As soon as they have made and delivered their award, they become functus officio, and their power is at an end. After having once fully exercised their judgment upon the facts submitted to them, and reached a conclusion which they have incorporated into their award, they are not at liberty at another and subsequent time to exercise a fresh judgment on the case and alter their award. Fallon v. Kelehar, 16 Hun, 266; Morse on Arbitration and Award, 226; 1 American and English Encyclopedia of Law, 689, and authorities there cited; Mordue v. Palmer, 6 Chancery Appeal Cases, 22; Bedwell v. Wood, 2 Queen's Bench Div., 626; Irvine v. Elnon, 8 East, 54; Henfree v. Bromley, 6 id., 309.

It is claimed, first, that there was but one award; that the first paper was a mere informal draft, expressing the conclusions of the arbitrators but not intended for delivery as an award, and, second, assuming that it was delivered as an award in which no amount was stated, the same was certain and final and contained all the requisites of a proper award; that it contained facts from which the amount could be made certain.

As to the first contention, the two papers speak for themselves; they both purport to be awards made by the arbitrators. True, the first paper does not state the amount that the defendant is to pay the plaintiff in dollars and cents, but it does state that the plaintiff is entitled to receive his “ final payment.” This doubtless means the last or final payment provided for in the building contract, and reference would have to be made to that instrument to determine the amount. It is also true that it was not acknowledged or approved in like manner as to entitle a deed to be recorded, as required by § 2372 of the Code. In these particulars it is defective, but there can be no doubt but that it was executed and delivered by the arbitrators as their award, and that at the time they intended it as such.

As to the second contention, we may concede all that is there claimed for the award excepting the defects already referred to and yet we are unable to recognize the distinction which the respondent attempts to make between his case and that of Fallon v. Kelehar, 16 Hun, 266. It is said that the second award was made on the same day. It is dated.on the 30th day of December, but it was not acknowledged until the 2d day of January, after which it was delivered. It determines the amount of the final payment due upon the contract to be $1,311.40, and in addition thereto, awards to the plaintiff the interest on that amount for seven months, amounting to $38.64, making a total of $1,350.04, for which amount judgment was entered. By the second paper they increase the amount of the award in the sum of $38.64. They thus exercise a new judgment upon the facts and change the amount of the award. This was in excess of their powers and brings their second award within the condemnation of the cases to which we have referred.

As we have seen, the arbitrators were not sworn faithfully and fairly to hear and examine the matters in controversy and make a just award according to the best of their understanding. Section 2369 of the Code provides that this oath must be taken before the hearing of any testimony by the 'arbitrators. It is said that the oath was waived by the appellant, but it does not appear how, unless it was by his tearing up the paper which he had handed the arbitrators to swear to after they had refused to do so. The contents of the paper are not given, but we think the inference to be drawn from the reply made by the arbitrators is that it was the oath which they were required to take as such, and that they understood its contents. We are aware that it has often been held under the Revised Statutes, that where the parties have appeared before arbitrators and have entered upon the trial of their case, sworn and examined witnesses, and waited until an award or a report has been served, without calling the arbitrators’ attention to the fact that an oath is required, they will be deemed to have waived it, but in this case no such facts appear. On the 30th of December, the plaintiff and the arbitrators went to the defendant’s building. Whether he had previous notice of their coming does not appear. The arbitrators questioned him and the plaintiff about the matters in dispute.

The plaintiff handed them the plans and specifications upon which the building was to be erected and the certificate of the architect, and thereupon, without swearing a witness or asking if they had any witnesses that they would like to have examined, the arbitrator, Pendergast, as the defendant expresses it, read to the arbitrators the certificate of the architect, and then said that there is nothing for us to arbitrate,” and the other three arbitrators agreed with him. It was at this point, as we understand, that the defendant presented his paper and asked for the oath of the arbitrators. We do not think that these facts would constitute a waiver of the oath under the revised statutes. The proceedings were all quite informal. Defendant was not attended by his counsel, and it is quite evident that he was beaten before he was aware that his trial had begun.

But again, § 2369 of the Code provides that before hearing any testimony, arbitrators selected either as prescribed in this title or otherwise, must be sworn * * * unless the oath is waived by the written consent of the parties to the submission or their attorneys." It is not claimed that there was any written consent to waive the oath. The latter clause of the section is new, and was enacted in 1880. The provisions of this section are very similar to those of section 1016 of the Code, which makes provision for the oath to be taken by the referee, -and provides that “ the waiver may be made by written stipulation or orally. If it is-oral, it must be entered in the referee’s minutes.” In construing this section the question has arisen as to whether an oral waiver can be shown otherwise than by the entry in the referee’s minutes. Upon this question the courts below appear to be in some conflict.

In the case of Nason v. Ludington, 56 How., 172, it was held that it could, whilst in the case of Browning v. Marvin, 5 Abb. N. C., 285, and in the Matter of the Accounting of Vilmar, 10 Daly, 15, a different conclusion is reached. See also note to Nason v. Ludington, supra.

It appears to us that the clause referred to in § 2369 of the Code was intended to provide a rule of evidence from which the question of waiver may be determined. The evidence required to establish such waiver is the written consent of the parties or their attorneys.

This requirement is not harsh or unjust. Parties who wish to submit their controversies to arbitration under-the provisions of the Code will find it no more difficult to comply with the provisions of this section than that of any other section. We regard the added provision as wise and .beneficial. It will tend to relieve the courts and suitors of the numerous motions which were formerly made to set aside reports by reason of irregularities similar to the one under consideration. Under the former practice the question as to whether there was or was not a waiver was usually controverted and had to be determined upon affidavits read upon the motion. This is now disposed of by the provision of the Code which requires such waiver to be established by the written consent of the parties or their attorneys.

Our attention has been called to the case of Cutter v. Cutter, 48 N. Y. Supr. Ct., 470-474, in which Arnoux, J., reached the.conclusion that this provision of the Code has added nothing to the Revised Statutes, and consequently the rule in reference to the waiver of the oath has not been changed, but in that case the proceedings were held regular under the common law, and that the provision of the Code had not taken away the right of a common law arbitration. Whilst in this case the arbitration was under the Code, and a judgment has been entered upon the award. We, therefore, think this case distinguishable.

Nothing herein stated is intended as a construction of § 1016 of the Code, for since the cases referred to herein, § 721, sub. 12, has been amended in reference to the oath of referees. Jenkins v. City of Hudson, 8 Civ. Pro., 70-75.

It follows fhat the judgment and orders should be reversed, and the motion to vacate the award granted, with costs.

All concur, except Bradley, J., who dissents from so much of the order as vacates the award.


author: Brown, J.

text:
    Margaret A. Case, Resp’t, v. The Phœnix Bridge Co., App’lt.

      (Court of Appeals, Second Division,

      Filed May 31, 1892.)

    1. Contract—Res ad judicata.
    The action was brought for a balance of moneys due on a contract to sink iron piles, for extra work, and for damages sustained by the failure of defendant to provide materials as agreed. No defense was made to •the first two causes of action, but to the third defendant answered by a general denial, but admitting that the agreement was made. An order was entered severing the actions and judgment entered on the two first namecl and the action continued as to the third, and the referee gave judgment thereon on the grounds that defendant failed to deliver iron in sufficient quantity as required, and failed to lay the floor of the pier as fast as practicable. Held, error; as defendant was not Hable for the delay in laying the floor of the pier, and it is impossible to determine what portion of the damages is attributable to the delay in furnishing the iron.
    3. Same—Evidence.
    Plaintiff was allowed to give evidence that defendant undertook and agreed by paroi that the floor should be laid so that plaintiff could complete her work within thirty days. Held, incompetent, as the conversations testified to were had before the written contract, and the subject was made a part of the agreement.
    Appeal from a judgment of the general term of the superior court of the city of New York, affirming a judgment entered upon the report of a referee.
    The parties to this action entered into a written agreement as follows:
    “ Memorandum of agreement made this 24th day of April, 1884, between the Phoenix Bridge Company of the first part, and M. A. Case, of Brooklyn, Kings county, of the second part. M. A. Case hereby agrees to sink about 154 Phcenix wrought iron piles, about ten feet deep into the sand, for an iron pier at Cape May; and he further agrees to place the iron transverse girders on top of the pile§, secure the same, and put in place all transverse and lateral rods and struts.
    “In consideration of which the Phoenix Bridge Company agrees to pay to Mr. M. A. Case for all the above specified work at the rate of twenty-seven dollars and fifty cents for every pile. The Phoenix Bridge Company also agrees to deliver all the iron at the site of the pier, and to furnish a competent engineer to  give lines and ‘ levels ’. Payments to be made to Mr. M. A. Case two-weelcly as the work progresses.
    - “ Mr. M. A. Case further agrees to put all iron in place in thirty days after sufficient iron has been delivered, and provided that the iron is delivered in regular order and quantity, and that the floor is laid as fast as required for the erection of the iron.
    “In witness whereof, both parties have signed their names.
    “The Phoenix Bridge Company,
    “ By A. Bonzano.
    “M. A. Case,
    “ By Henry Case, Attorney.”
    “S. H. Bonner."
    On May 1st defendant notified plaintiff to be ready to begin work on May 15th.
    The iron piles required were not delivered at the site of the pier until May 26th and on May 27th work was commenced. It was not completed until the month of August.
    Thereafter plaintiff began this action to recover (1) an unpaid balance of the contract price for the work; (2) for extra work and materials furnished at defendant’s request during the erection of the pier; (3) damages caused by defendant’s delay in delivering the iron and laying the floor of the pier. .
    Ho defense was made to the first two causes of action. To the third defendant answered by a general denial excepting an admission that an agreement was made between the parties on April 24, 1884.
    An order was thereafter made severing the causes of action, and judgment having been entered on the two first named the action was continued as if it had originally been brought on the third cause of action.
    ■ The referee found as a fact that plaintiff was delayed by defendant in the performance of the work for. twenty-two days, during which time she was obliged to keep a number of men and her tools and machinery ready to engage in the work, and to pay said men their wages and board, and awarded damages for such expenditure and the value of the use of the tools and machinery.
    Further facts appear in the opinion.

      Thomas Gr. Shearman, for app’lt; Edward S. Clinch, for resp’t.

       Reversing 34 St. Rep., 581.

   Brown, J.

The judgment awarded by the referee to the plaintiff was predicated upon a breach of the contract by defendant in two respects. First, the failure to deliver the iron called for by the plans and specifications in sufficient quantity or as rapidly as the progress of the work required, and second, the failure to lay the floor of the pier as fast as it was practicable to do it.

The appellant contends that it was not liable for the delay in the laying of the floor of the pier, and if this contention is sound the judgment must be reversed, as it is impossible to determine what portion of the damages is properly attributable to the delay in furnishing the iron.

At the defendant’s request the referee found that on April 24, 1884, the parties entered into the written agreement set out in the preceding statement, and he refused to find, “ That the defendant did not agree to lay the floor of the pier as fast as the plaintiff might require it for the erection of the iron.” And to this refusal the defendant excepted.

In his formal decision the referee found that the defendant’s obligation included the delivery of the iron at the site of the pier as rapidly as the progress of the work required, and the laying of the floor of the pier as fast as practicable. It appeared from the evidence that the floor of the pier was the subject of a separate contract which had been made with a carpenter at Cape May, of which plaintiff was informed before she made her agreement. If, however, defendant agreed that such work should be done within .a certain time, it would be of no importance by what instrumentality it sought to perform it, and it would be equally liable for the -delays of an independent contractor as it would if it had undertaken to do the work itself.

And so upon the trial plaintiff was permitted to give evidence over the defendant’s objection and exception that defendant did undertake and agree by paroi that the floor of the pier should be laid so that plaintiff could complete her work within thirty days.

We are of the opinion that this evidence was clearly incompetent. The conversations testified to were had before the written agreement was executed, and the subject was made a part of that agreement. All prior negotiations and oral promises on the same subject were merged in the written contract and the rights and duties of the parties are to be determined by that instrument. It must be presumed to contain the whole engagement of the parties. -

To bring a case within the rule admitting paroi evidence to -complete an entire agreement of which a wilting is only a part, two things are essential. First, the writing must appear on inspection to be an incomplete contractand second, the paroi evidence must be consistent with and not contradictory to the written instrument.. Engelhorn v. Reitlinger, 122 N. Y., 76; 33 St. Rep., 275 ; Thomas v. Scutt„ 127 N. Y., 133; 38 St. Rep., 692. 'This case does not fall within the rule and the exception t'a the .admission of the evidence was well taken.

This exception would not, however, be fatal to the judgment if the written agreement was susceptible of the conclusión reached ’■by the referee in his findings. But we do not think that it is and that the conclusion that the defendant agreed “ to lay the floor of tihe pier as fast as possible ” cannot be sustained.

There is "a clear distinction made ,in the contract between the-iron work and the floor of the pier. There is a positive stipulation “ to deliver all iron at the site of the pier,” and it is a fair inference that this was to be done “as rapidly as the progress of the-work required,” as found by the referee.

But there is no positive agreement to lay the floor of the pier. The only reference to that work is as a condition to the performance of plaintiff’s work within thirty days.

It may be assumed that the defendant desired the iron work to-be done in thirty days, and this plaintiff agreed to do provided, or on condition that the floor was laid as fast as required for the-erection of the iron.

It was essential to the performance of plaintiff’s work that the-laying-; of the floor of the pier should follow rapidly the driving of the piles as the pier extended into the ocean. But defendant, did not obligate itself to do that work. Plaintiff knew that it had been made the subject of a separate contract with other parties, and she was under no obligation to perform her contract within thirty days if the floor was not laid. Delay in the laying of the floor of the pier had therefore no other effect, than to relieve her from her obligation to perform in thirty days. It could not be made the basis of a" claim for damages against the defendant.

So far, therefore, as the judgment proceeds upon any delay inlaying the floor of the pier, we think it is erroneous ana must be reversed.

This conclusion renders unnecessary any consideration of the other questions argued, as the exceptions upon which they rest may not arise upon a new trial.

judgment reversed and a new trial granted, with costs to abide the event.

All concur.


author: Vazstn, J.

text:
    Frederick D. Blake, Resp’t, v. Carl Voight et al., App’lts.

      (Court of Appeals, Second Division,

      Filed May 31, 1892.)

    Statute op frauds—Pttechase on commission.
    The contract in question required plaintiff to procure consignments of goods during one year from December 1, 1888, and that defendant should pay him commissions therefor, hut it permitted either party to terminate it in June, 1889. Meld, that as either party might rightfully terminate it, within the year, the statute of frauds did not apply.
    Appeal from a judgment of the general term of the court of common pleas of the city and county of New York, affirming a judgment of the general term of the city court of New York,, which affirmed a judgment entered upon the verdict of a jury.
    This action was brought to recover commissions alleged to be due from the defendants to the plaintiff upon the proceeds of certain goods, which he caused to be consigned to them upon their promise to pay him at the rate of one and one-half per cent, on the amount of the sales. The defendants pleaded, among other defenses, that the agreement was not in writing and-was, therefore, void under the Statute of Frauds, because, according to its terms, it was not to be performed within one year from the making thereof.
    The facts so far as material appear in the opinion.

      Charles M Hughes, for app’lts; C. Bainbridge Smith, for resp’t.

       Affirming 34 Sp Rep., 295.

   Vazstn, J.

In the month of November, 1888, the plaintiff was ■engaged in business at Rockville, Conn., and the defendants were commission merchants in the city of New York. During that month the plaintiff had several interviews with one of the defend.ants, the result of which, as stated by him in his testimony, “ was .that I was to cause to be consigned all the goods that I could influence to him, for which I was to receive one and one-half per •cent, commission on the sales of such goods, and he requested me to put that in writing in the form of a letter to him, which I did .and delivered to him in person.” The letter, which bore the date -of its delivery, November 27, 1888, was signed by the plaintiff .and addressed to the defendants, but was not signed by them. It ■referred to the interview that the parties had “ had together relating to forming business relations” and after stating as the result thereof the agreement alleged in the complaint, closed in these words: “ This agreement to take place and effect December 1, 1888, for one year." The plaintiff testified that the letter embraced the agreement as previously made ; that he delivered it to one of the defendants, who read it and said it was correct, but added “ that on June following this either party could make the contract null and void by due notice, null and void as to continuance,” to which the plaintiff assented. Pursuant to the agreement the plaintiff procured goods to be consigned to the defendants at various times prior to June 3,1889, when it was terminated by them under .the option permitting it.

The main question requiring discussion is whether the trial court erred in denying the motion of the defendants to dismiss the complaint upon the ground that the agreement in question was void under the statute of frauds, because it “ could not, according to its terms, be performed within one year, and was not reduced to writing and subscribed by the party to be charged.”

The learned general term of the city court gave no reasons for its decision, but the court of common pleas, in construing the last ■clause of the letter, held that although the minds of the parties met on the twenty-seventh of November, the agreement did not “take place” until the first of December, because they expressly deferred the making of it ” until the latter date. There is no evidence, however, tending to show that any agreement was in fact made on the first of December, or that the parties had any negotiations after November twenty-seventh. The agreement, therefore, was actually made in November, and if the parties provided as a part thereof that it was not to be an agreement until the first of the following month, that provision was an essential part of the whole, and was clearly in force prior to the first of December.

We think that the natural consiruction of the clause under consideration requires us to hold, that the parties intended thereby to simply fix the date when the agreement wasto go into practical effect by the consignment of goods, and it appears that the first consigment was actually made on the day thus designated.

We are also of the opinion that the agreement, made November 27th, 1887, was to continue- for one year from December 1, 1888,. unless terminated under the option reserved by the parties. The expression “ one year,” as the context shows, refers to the date which immediately precedes it, and not to the date when the agreement was made, which is not expressly mentioned in any paft of the letter. Thus actual performance of the business in contemplation was to begin on that‘day and was to continue for one-year thereafter.

We are hence brought to the question whether the reservation, of an option to terminate the contract within the year took it out of the operation of the statute. We agree with the learned counsel for the defendants that the actual termination of the agreement within the year does not affect the question, as the contract must be construed as it stood when it was made. Browne Stat of Frauds, § 279.

The ultimate question, therefore, is whether a contract, which by the terms applicable to the leading subject thereof is not to be performed within a year, is taken out of the statute by the fact that it was a part of such contract that either party might rightfully terminate it within the year. It is contended that termination is not performance, but rather the destruction of the contract, and this is true where there is no provision authorizing either or both, of the parties to terminate as a matter of right. Performance,, however, is simply carrying out the contract by doing what it requires or permits. The contract under consideration required the plaintiff to procure consignments of goods to the defendants, during one year from December 1, 1888, and that they should pay him a commission therefor, but it permitted either party to-terminate it in June, 1889. The permission was part of the agreement, and effective action under it was performance of that-part. The contract could be performed in either of two ways: 1,. by performance according to its terms, without exercising the option ; 2, by performance according to its terms until June, and then exercising the option. By either mode the contract would be fulfilled in a sense originally contemplated by the parties, and • by neither would performance be frustrated, because the contract would be executed in a way that the parties agreed that it might, be executed. The contingency did not defeat the contract, but-simply advanced the period of fulfillment. The statute applies, to “every agreement that by its terms is not to be performed, within one year from the making thereof.” 4 R. S. (8th ed.)* 2590, § 2.

As it was the design of the statute not to trust the memory of witnesses beyond one year, it has been repeatedly held that it does not apply to a contract which, consistently with its terms., may be performed within that period. The contract in question,, therefore, as we construe it, is free from the restraint of the statute. This conclusion finds support in the adjudged cases, which, although uniform in this state, are somewhat at variance in-other jurisdictions.

In The Trustees of the First Baptist Church v. The Brooklyn Fire Ins. Co., 19 N. Y., 305, the action was upon a fire insurance policy dated July 21, 1845, for one year, renewed July 21, 1846, for a second year and July 21, 1847, for a third year. The property insured was destroyed by fire September 10, 1848. While the original policy was running the parties agreed verbally that, until notice to the contrary should be given by one to the other, the defendant should renew the policy from year to year, without further notice, and give a certificate of renewal; that the plaintiff should pay the premium therefor on demand, and the two renewal certificates were given pursuant to such agreement. The court, in declaring the agreement valid, said: “ It is not the meaning of the statute that the contract must be performed within a year. If it can be so performed consistently with the language in which the parties have expressed themselves, in other words, if the obligation of the contract is not, by its very terms, or necessary construction, to endure for a longer period than one year, it is a valid agreement although it may be capable of an indefinite continuance. An agreement which-either party can terminate at any time by a notice to the other may be binding so long as the notice is not given, but it is not within the language or policy of the statute. Plimpton v. Curtiss, 15 Wend., 336; Moore v. Fox, 10 Johns., 244; Fenton v. Emblers, 3 Burr., 1278; 2 Parsons on Contracts, 316.”

The case came before the court a second time, when the first decision was expressly approved, 28 ÜST.Y., 153,163, and, although repeatedly cited since, it has never been criticised so far as our investigation has discovered. Kent v. Kent, 62 N. Y., 560, 564; Van Woerl v. A. & S. R. R. Co., 67 id., 538, 542.

In Smith v. Conlin, 19 Hun, 234, the plaintiff verbally agreed with the defendants in October, 1876, to teach school until October 1, 1877, and a year longer, if no notice should be given by either party, at least two weeks prior to the expiration of the first year, that the services should then cease. After a careful review of the authorities it was held that the agreement was not within the statute, although one of the learned justices dissented from that conclusion. The subject is illustrated by the following cases, which were not controlled by the statute: An agreement to continue “ as long as the parties are mutually satisfied,” Greene v. Harris, 9 R. I., 401; or for two years, or “ until I have made the net profit of $50,000,” Hodges v. Richmond Mfg. Co., 9 R. I., 482; or to work until an infant became of age, although that-event could not occur for seven years, Peters v. Westborough, 19 Pick., 364; or for the term of five years, or so long as A. shall continue to be agent of a certain company, Roberts v. Rockbottom Co., 7 Met., 46; or to cut trees at any time within ten years, Kent v. Kent, 18 Pick., 569; or any agreement which provides primo, facie for a performance beyond the year, provided it can, consistently with its terms, be fulfilled within that time. Peter v. Compton, 1 Smith’s Leading Cases, 7th ed., 577, note, p. 581. See, also, Warren Chem. & Mfg. Co. v. Holbrook, 118 N. Y, 586, 593; 29 St. Rep., 848; Dresser v. Dresser, 35 Barb., 573; McLees v. Hale, 10 Wend., 426; Burlingame v. Mandeville, 7 St. Rep., 858; Browne Stat. of Frauds, § 281; 1 Reed Stat. of Frauds, 197, 201.

Many contracts referred to in the exhaustive note to Peter v. Compton, supra, apparently intended to extend longer than one year, were held valid on account of the implied contingency of •death, when that event would necessarily conclude further performance. It is difficult to see why such a contingency, although not named and not necessarily contemplated by the parties, should ■save a contract, unless a contingency provided for by express -stipulation, and acting on the contract in the same way, should have the same effect. If “an agreement to do or to refrain is "fully performed by him who keeps it until he is no longer capable ■of doing or refraining,” Doyle v. Dixon, 97 Mass., 208, why is not an agreement to do or refrain fully performed by one who keeps it until he can no longer do or refrain, because by the authorized action of the other party the contract is terminated. The possibility of further performance is effectually ended in either case, -and the contract is as necessarily completed by the one event as the other. While the whole contract hangs on life in the one instance, it hangs on the reserved option in the other. Where the parties agree to carry on business for a period exceeding one year, or until the happening of an event which may transpire before the end of the year, we think that by principle, as well as by the weight of authority, the contract is protected from the --operation of the statute.

After examining all of the exceptions that are relied upon to reverse the judgment, we think that it should be affirmed, with «osts.

All concur; Haight and Brown, JJ., in result.


text:
    The Kokomo Strawboard Co., Resp’t, v. Horace Inman et al., App’lts.

      (Court of Appeals, Second Division,

      Filed May 31, 1892.)

      1. Contract—Action for value of goods delivered on partly per•FORMED CONTRACT.
    Plaintiff contracted to sell defendants a quantity of straw board for which they were to give their notes payable in ninety days. After several deliveries had been made and paid for, two of defendants’ notes were not paid, and plaintiff refused to make any more shipments except one, and defendants refused to give notes for shipments thereafter received. Held, that plaintiff had the right to. treat the contract as terminated and bring this action for the value of the goods delivered.
    3. Same.
    On the trial before the referee, defendant testified that he verbally ordered 100 tons of paper, which was never delivered, prior to the first non-payment of a note. Plaintiff's agent who had charge of orders received testified that tlie number of tons ordered prior to the default was, 438, while the number of tons shipped was within five tons of the quantity ordered, and that there was no such order received as defendant claimed. Held, that there was evidence to support the referee in his refusal to credit defendants’ testimony as to the alleged order.
    Appeal from a judgment of the general term of the supreme court, first department, entered on an order affirming a judgment, in favor of the plaintiff, entered on the report of a referee.

      Smith & White, for app’lts; Wm. Ford Upso?i, for resp’t.

       Affirming 33 St. Rep., 1008.

   Parker, J.

This action was brought to recover the value of

a quantity of strawboard delivered to the defendants, pursuant to the terms of a contract which by reason of an alleged failure of. performance on their part the plaintiff elected to treat as rescinded.

The contract was as follows:

“ Kokomo, Ind., Nov. 9, 1887.
“Horace Inman, Hsq., Amsterdam, N. Y.:
“ Dear Sir—We propose to furnish you with 1,200 tons straw-board at thirty-one dollars per ton f. o. b. cars here, your ninety days' acceptance from date of invoice.
“ These boards to be shipped during the year 1888. This contract shall be considered binding, barring accidents, and take displace of all previous contracts with the Ohio Strawboard Co. All boards to be of No. 1 quality.
“ Yours truly,
“Kokomo Strawboard Co.,
“ M. SlEBERLING, Sup’l
Accepted: Horace Inman.
“P. S. All boards shipped this year to apply on above.”

Subsequently the plaintiff, pursuant to the terms of the contract, and at different dates, delivered to the defendants large quantities of strawboard, the defendants giving, and the plaintiff receiving defendants’ notes, payable in ninety days, in lieu of acceptances.

The plaintiff alleges that after it had delivered a considerable, portion of the strawboard called for by the contract the defendants were guilty of a breach of it, in that they failed to pay some of the notes at maturity, and neglected to give other notes or acceptances for about eighty-eight tons of strawboard.

The referee found that the boards shipped by the plaintiff to-the defendants were in substantial compliance as to time and quality with the terms of the contract.” With reference to the alleged breach of the contract on the part of the defendants, he found, among other things, that a note maturing July 5, 1888, for $1,054, was protested for non-payment, and has not since been paid ; that a note for $658.75, which became due July 20, 1888, was also protested, and still remains unpaid.

On the trial, the plaintiff surrendered up notes aggregating; $3,393.85 of principal which had been received in lieu of acceptances.

From the 5th to the 20th of June inclusive, the plaintiff delivered to the defendants eighty-seven tons of strawboard, for which the “ defendants promised to give their notes, as they had .for other shipments, but have failed and neglected to do so, and have not paid for any portion of the same.”

It was also found that, at the urgent solicitation of the defendants, and under .the belief that an amicable adjustment would be had, the plaintiff shipped one other ton of strawboard, making in all eighty-eight tons received by the defendants, for which neither notes nor acceptances were given.

The referee has fully supported his findings in an opinion which carefully considers the testimony before him, and they met with approval at the general term.

His findings justified the conclusion reached that there was a breach of the contract on the part of the defendants, for not only -had they failed to give acceptances as provided by the contract, or notes in lieu thereof, but had also neglected to make the necessary payments. The effect of the provision in the contract that plaintiff would receive defendants’ acceptances for ninety days from date of invoice operating merely to extend the time of payment for that length of time. Jagger Iron Co. v. Walker, 76 N. Y., 521. And default in payment constitutes a breach of contract. Barnes v. Denslow, 30 St. Rep., 315 ; Winchell v. Scott, 114 N. Y, 640; 24 St. Rep,, 576 ; Flaherty v. Miner, 123 N. Y, 382-389 ; 33 St. Rep., 681. After the breach of the contract by the defendants, the plaintiff had the right to treat, as it did, the contract as terminated, and bring this action for the value of the •straw-board furnished. Meadv. Degolyer, 16 Wend., 638; Ladue v. Seymour, 24 id., 60, 62; Jones v. Judd, 4 N. Y., 411.

This brings us to a consideration of the grounds specially assigned by the appellant as cause for reversal.

The defendants contended on the trial that the plaintiff had failed to perform on its part prior to the date of the protest of the note first maturing, by neglecting to honor an order by the defendants for 100 tons of strawboard given on the 9th day of November, 1887.

The referee was requested to find that such an order was given, ■and to his refusal an exception was taken. Appellants now insist that this ruling was error because "wholly without evidence to -support it.

The defendant Inman testified that he verbally gave the order for 100 tons on the 9th day of November. The referee refused to credit his testimony in such respect, and the question now is whether there is any evidence to support his ruling.

One Williams, a representative of the plaintiff, and who had charge of the oz’ders received, and the directions for shipment, testified that the number of tons of strawboaz-d ordered prior to the default on the part of the defendants was 438, while the number of tons shipped during that period was within five tons of the ■’quantity ordered. He also testified that the ordez’s given for the -438 tons were in writing. He was further asked:

Q. Do you know whether the defendants, or either of them gave the plaintiff any orders between Nov. 9, 1887, and July 1, 1888, for strawboard which are not in writing? A. Do you mean that outside of the written orders we have, that there is any order to correspond with the verbal order ? No, sir; we received none.
Q. You are sure of that? A. Yes, sir.
Q. You know that of your own knowledge? A. Yes-, sir, I know it.

A further discussion of the evidence in this connection is unnecessary, for that so far alluded to shows that the refusal to find, of which complaint is made, had evidence to support it.

Appellants also insist that the plaintiff having rested its case without surrendering the notes, the court erred in denying a motion to dismiss the complaint.

The ground of nonsuit which it is claimed presented the point asked for a dismissal of “ the action because of a variance between the allegations of the complaint and the plaintiff’s proofs.”

When the plaintiff rested its case, nothing remained for it to do but surrender the notes in order to fully establish the cause of action pleaded, and the ground assigned for dismissal did not •call the attention of the court to the point now made. If it had, the other party might have supplied the defect, and in default of such action on its part the court could have intelligently passed upon it. It was therefore too general to be made available in this court. Webb v. Odell, 49 N. Y., 583.

Before the case was closed the plaintiff surrendered the unpaid notes in open court, so if error was committed in refusing to non-suit, the defect in the proofs having been subsequently supplied, ■a reversal will not be allowed. The Schenectady & Saratoga P. R. v. Thatcher, 11 N. Y., 102; Dean v. Corbett, 19 J. & S., 108.

The other matters discussed by the appellants have no other purpose than to convince the court that the referee erred in his findings of fact touching the default of the defendants and the ■alleged breach of the contract on the part of the plaintiff. But those findings are not review able here, and need not be considered.

The judgment should be affirmed.

Judgment affirmed,, with costs.

All concur.


author: Pratt, J.

text:
    The People ex rel. Frank Hasbrouck, App’lt, v. The Board of Canvassers of Dutchess County, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed March 26, 1892.)

    JMandamus—Notice.
    A peremptory writ of mandamus can only be granted upon notice to the board or officer to whom it is directed, and if granted without such notice must be quashed.
    Appeal from order of special term quashing peremptory writ of mandamus.

    Relator was the democratic candidate for county treasurer of Dutchess county at the election held in November, 1891. The 6/ •

      board of county canvassers rejected from the count eighteen republican ballots, from each of which the name of the candidate for justice of sessions was erased and another name substituted in writing instead thereof, and thirty-six other ballots claimed to be marked for identification, and filed a certificate giving the office-to relator by a plurality of thirty-seven votes. A mandamus on the relation of Isaac W. Sherrill, the republican candidate, was issued, in obedience to which the board reconvened and recanvassed the vote and allowed said marked ballots, and filed a statement which gave said relator a plurality of seventeen votes.
    Thereupon the relator herein obtained this peremptory mandamus commanding the board to reconvene and recanvass the vote, and to reject and not to count said marked ballots. No-notice of the application for said mandamus was given. The board made a return setting up the above facts, and Justice Barnard thereupon quashed the writ, and stated that there was a. failure of proof to sustain the writ; that the votes must be presumed to have been properly and honestly cast, unless there is-proof as to each voter to the contrary.

      Horace D. Hufcut, for app’lt; Wm. H. Wood, for resp’t.
   Pratt, J.

It is a sufficient answer to this appeal that the order-appealed from was right, because the peremptory writ of mandamus, which was dismissed, was issued without notice. Section 2070 of the Code, which gives the authority for granting a peremptory writ of mandamus, provides that such mandamus can be granted only upon notice given to the judge, corporation, board, or other body or officer to whom it is directed. That section of the Code also contains this provision: “ Except as prescribed in this section or by special provision of law, a peremptory writ of mandamus cannot be issued until an alternative mandamus has-been issued and duly served and the return day thereof has elapsed.”

We think, however, that the quashing of the writ was right-upon the merits, even had it been regularly issued upon notice. Section 31 of chapter 296 of the Laws of 1891, as amended, provides the manner in which the inspectors and canvassers should perform their duties, among other things, as follows:

“ When an inspector of election or other election officer or duly authorized watcher, shall, during a canvass of the votes, or immediately after the completion thereof, declare his belief that any particular ballot or paster affixed thereto has been written upon or marked in any way with the intent that the same may be identified, the inspectors shall write their names on the back thereof and attach it to the original certificate of canvass, and include in said certificate a statement of the specific grounds upon which the 'validity of such ballot is questioned. When the votes are to be-estimated and the result declared by a board of county canvassers or other officers performing similar duties, such board or officers shall mention separately in the statement or certificate-of canvass the number of votes thus questioned which were cast for each candidate, and the specific grounds upon which the same are claimed to be invalid as set forth in the original certificate of canvass. Such ballots shall be counted in estimating the result of an election ; but within thirty days after the filing of the certificate declaring such result a writ of mandamus may issue out of the supreme court against the board of canvassers or officers acting as such hoard, by whom the ballots were counted, upon the application of any candidate voted for at the election, to require a recount of the votes, and all questions relating to the validity of such ballots, and as to whether they were properly counted, shall be determined in such proceeding. All such ballots shall be preserved for at least one year, and until the questions raised by such writ shall he finally determined. Election boards and hoards of -canvassers shall he continued in existence for the purposes of such proceedings.”

There are two reasons why a long discussion need not now be indulged upon this statute: 1st. Because the order must be affirmed upon the ground first stated herein; and, 2d, because the law has been fully discussed and construed in the court of appeals in the late election cases.

To my mind as to the eighteen ballots in East Flushing the evidence was sufficient to establish a conspiracy for the purpose of -committing a fraud in casting of ballots, but what evidence shall be satisfactory proof that any one ballot was bought or cast in .¡.'rand of the law is a difficult subject to which to apply any cast iron rule, as the circumstances must differ in each case, but where a conspiracy is established to defraud, and some ballots containing a certain specified mark are shown to have been cast in pursuance -of such conspiracy, it seems to me that all ballots containing such .specified mark ought to be thrown out of the count.

It is utterly impracticable to prove an intent of each individual voter except by the voter himself, and such evidence cannot be •compelled, as that would require him to testify to his own dishonesty.

The law is, therefore, under such a construction, nugatory.

Order affirmed.

Dykman, J., concurs; Barnard, P. J., not sitting.