text:
    GAMALIEL G. SMITH and others, Respondents, v. DANIEL L. PETTEE and another, Appellants.

      Damages arising from refusal to accept merchandise under contract — Measure of— sale by vendar for benefit of vendee — how soon it must be made.

    Appeal from a judgment entered on a report of a referee for $2,525.57, damages and costs.
    The action was brought on a broker’s contract for the sale of “170 tons, more or less, of No. 1 wrought scrap iron, to arrive per ship, as follows: Elpis, seventy tons, Christopher, one hundred tons, at sixty dollars per ton of 2,240 pounds; light iron at 'half price; purchasers to give their notes at sixty days from date of invoice and weigher’s return, adding interest at seven per cent per annum; United States weigher’s return to decide quantity,” which contract, dated February 2,1874, was accepted in writing by the defendants.' The iron by the Elpis, on arrival, was delivered and paid for by the defendants pursuant to the contract. The iron by the Christopher was tendered, but acceptance and payment were refused by the defendants, on the ground that the iron was in fact on the “ St. Christopher,” while the contract mentioned the ship without canonization, the “ Christopher.” In the answer there was an additional claim, that the value of the iron was more than it brought on the sale by the plaintiffs. On the trial, proof was introduced by the defendants for the purpose of showing the defect ive quality of part of the iron tendered to them. Soon after the refusal, the plaintiffs gave notice to the defendants that they should sell the iron for the defendants’ account. In the month of November, 1874, the plaintiffs sold the iron for $4,768.07. A deficiency arose on the sale of $1,971.39, being the difference between the avails of sale and the contract-price, including expenses,, for which this suit was brought and judgment obtained on the report of the referee.
    The court at General Term say: “ There seems to have been no good ground for doubting the plaintiffs’ right to recover whatever damages they sustained by means of the defendants’ default.

      “ But their recovery was not limited to the difference between the price they were entitled to receive under the agreement and the market-price of the iron when the defendants refused to receive it, or within a reasonable period afterward, during which a sale could have been made of it. Either upon such a sale would have been a proper measure of damages. (Dana v. Fiedler, 2 Kern., 40; Pollen v. Le Roy, 30 N. Y., 549; Lewis v. Greider, 51 id., 231; 49 Barb., 606.) The plaintiffs had the right to retain it until it could be sold, after the defendants refused to receive the iron ; and after making sale of it could recover the difference between its net proceeds and the price they were to receive for it, by the terms of the agreement, from the defendants. But to conclude the purchasers by the result of such a sale it should take place as soon after the refusal to accept the property as that could practically be made. That was not done in this case, but the iron was retained in store by the plaintiffs for a period of very near four months, and during this time the market-price of that description of iron was continually depreciating. * * * They could not keep it in store for months as they did and then charge the loss caused by that delay upon the purchasers, for to that extent it was not the consequence of the defendants’ fault, but of the plaintiffs’ injudicious delay in the sale of the property. The right of a party to damages for the breach of a contract is limited to such as are the natural and proximate consequence of the act complained of, and do not include those proceeding from his own neglect or mismanagement. (2 G-reenl. on Ev. [5th ed.], § 256; Passenger v. Tkorburn, 34 N. Y., 634; Griffin v. Colvir, 16 id.,' 489, 494-495; Cassidy v. Le Fevre, 45 id., 563.) The law, for wise reasons, imposes upon a party subjected to injury from a breach of contract the active duty of making reasonable exertions to render the injury as light as possible; and if he, through negligence or willfulness, allows the damages to be unnecessarily enhanced, the increased loss justly falls upon himself. (Hamilton v. McPherson, 28 N. Y., 12, 16, 11; Milton v. Hudson R. Steamboat Co., 31 id., 210, 214, 215.) The loss sustained upon the iron by deferring the time for its sale beyond that reasonably required for making it, after the defendants’ refusal to accept it, was not, within these principles, a proper item of damages against them.”

      Thomas Darlington, for the appellants. Foster & Thomson and John M. Whiting, for the respondents.
   Opinion by

Daniels, J.

Davis, P. J., and Brady, J., concurred.

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


source: Caselaw Access Project

author: Davis, P. J.

license: Public Domain

text:
    BANK OF CALIFORNIA, Appellant, v. GEORGE P. COLLINS and others, Respondents.

      Foreign mporation— Banking powers — cannot be exercised by a corporation organized under a foreign statute not conferring them — Such corporation cannot maintain an action based upon a banking transaction — certainty as against persons bound not by contract, but by statute obligations.

    Motion for a new trial upon exceptions ordered to be heard in the first instance at General Term, after a dismissal of the complaint by the court at Circuit.
    The plaintiff alleged in its complaint that it was a banking corporation organized under the laws of California, and sought to charge the defendants as trustees of La Abra Silver Mining Company, a corporation organized under the laws of this State, with a certain indebtedness of said company for money lent, etc., and because the defendants, as trustees, failed to file a report of the condition of the company as required by law.
    The defendants pleaded mil tiel corporation, and also denied each and every allegation of the complaint. On the trial, to prove its corporate existence, the plaintiff put in evidence an act of the legislature of California, entitled “An act to provide for the formation of corporations for certain purposes.” The first section of which declares that corporations for manufacturing, mining or chemical purposes, or for the purpose of engaging in any species of trade or commerce, foreign or domestic, may be formed according to the provisions of this act, etc.
    The fifteenth section declares: “No corporation organized under this act shall, by any implication or construction, be deemed to possess the power of issuing bills, notes or other evidences of debt for circulation as money.”
    The plaintiff also put in evidence its certificate of incorporation, declaring that it was created under the provisions of the above act, and that the object for which it was formed is to engage in and carry on the business of banking, to such extent and in all such branches as may be legally done under the Constitution and laws of the State of California.
    The defendants moved to dismiss the complaint, on the ground that a banking corporation could not be created under said act; and that said act and said certificate of incorporation did not create the plaintiff a corporation for carrying on the business of banking at all; which motion was granted.
    The court at General Term say: “We are of opinion that the attempt to create, under the act referred to, a banking corporation having the powers expressed in the certificate, was of no legal force, and that the plaintiff cannot maintain this action, based upon a transaction which was, as the complaint substantially shows, an exercise of its usurped banking powers.”

      Roger A. Pryor, for the appellant. Britton db Ely, for the respondents.
   Opinion by

Davis, P. J.

Beady and Daniels, JJ., concurred.

Motion for new trial denied; judgment directed for defendants, with costs.


author: Davis, P. J., and Daniels, J.

text:
    ALEXANDER T. STEWART and another, Appellants, v. MOSES STRASBURGER, Respondent.

      Arrest — large purchases on eve of bankruptcy, evidence of fraud — party liable to arrest for act of his wife — when — Principal and agent — fraud of agent —liability of principal for — when he talces fruits of.

    Appeal from an order vacating an order of arrest. The wife of the defendant purchased of the plaintiffs, in the months of November and December, 1875, goods to the amount of over $2,000 — for family use — which goods were sold and delivered by the. plaintiffs on the defendant’s credit. At and before the times of the purchases the defendant was insolvent and in failing circumstances, and on the láth day of December, 1875, made a general assignment. When the goods were purchased at the plaintiffs’ store no representations were made concerning the defendant’s circumstances, but, as his wife had previously purchased goods there in the defendant’s name, which were afterwards paid for by him, no suspicion as to his solvency or credit seems to have existed on the part of the plaintiff.- No term of credit was agreed npon, but the bill was not presented until the latter part of December, and then the defendant failed to pay. The affidavits on this motion also stated that the defendant has purchased of other parties during the same fall large quantities of dry goods which were not paid for. The plaintiffs insisted that the goods were procured from them' fraudulently, by intentionally concealing the defendant’s circumstances, and upon that theory the order of arrest was made. The defendant and his wife swore that the defendant did not at the time know of the purchases, and that she had no knowledge or ■ information of his pecuniary condition. She also swore that she had frequently made purchases of the plaintiffs for her family, amounting to over $1,500, during the period of a few months. This was shown to be false.
    The court at General Term say: ‘‘Proof of fraud, which always endeavors to guard itself against discovery by concealment, is peculiarly dependent upon the force of circumstances for its support; and, when they are so decided as satisfactorily to justify the conclusion that an intent to defraud existed, it is not to be rejected because of the positive denial of it by the parties concerned in the commission of the wrong. That is the nature of the circumstances shown in this case. They are wholly inconsistent with the truth of the assertion that the goods were purchased for the irse of the defendant’s family, and indicate the design to have been to make .the purchases because of the impending 'and prospective failure of the defendant. * * * The probability is very decided that the goods were purchased by her with the expectation and design that they would not be paid for, and that combined all the elements of actual fraud. (Brown v. Montgomery, 20 N. T., 287; King v. Phillips, 8 Bosw., 603; Carpenter v. Danforth, 52 Barb., 581; Johnson v. Monell, 2 Abb. Ct. App. Dec., 470.) In contracting the debt by means of it she acted, as she had done before, as the agent of her husband, the defendant, and the goods were delivered at his residence. So large a quantity could hardly be received there without his knowledge of them, and of the means by which they had been procured, and that was sufficient to render him an actual participant in the transaction. That he did know of the receipt of the goods at his residence is not denied by either himself or his wife, * * * and, when requested to pay the bill, he in no way indicated any disposition to part with the fruits of the fraud that had been committed. * * * The defendant’s wife bought the goods in his name and under his authority. They were received at his residence for the use of his family. He had the benefit of them, and became liable to the plaintiffs for the payment of the purchase that was fraudulently incurred, and he was lawfully held to bail, by the order made, for the debt that had been created.”

      Henry H. Bice, for the appellants. M. L. Townsend, for the respondent.
   Opinions by

Davis, P. J., and Daniels, J.

Order reversed, with ten dollars costs and disbursements, and motion denied with costs.


text:
    DAVID DINKELSPIEL, EDWARD OPPENHEIMER and HENRY HYMAN, Appellants, v. MARY ANN FRANKLIN, Respondent.

      Usury — Bond and mortgage — when mortgagor is estopped by certificate of validity of mortgage.

    Appeal from judgment at Special Term in favor of the defendant, dismissing the complaint upon the merits, with costs, and adjudging the bond and mortgage mentioned in the complaint null and void, and ordering them to be delivered up to be canceled.
    This was an action for the foreclosure of a mortgage made by the defendant to one Windle, and by him assigned to the plaintiffs. The answer did not deny the execution of the bond and mortgage, but set up the defense of usury, alleging that the defendant made the bond and mortgage and delivered them to Windle without any consideration, whatever, and for the purpose of enabling him to borrow money for her, and that afterwards Windle transferred them to plaintiffs for a sum much less than, their face. The bond and mortgage was placed by Windle in the hands of a broker to be sold. A certificate, purporting to be executed by the defendant, was presented to the plaintiffs, during the negotiations for and before the purchase was made, by which the mortgagor declared “ That the said mortgage, with the bond thereunto accompanying, were executed for a good and valuable consideration, and that the entire principal sum of $6,000, with interest thereon from the 24th day of June, 1872, now remains unpaid on account thereof, and that the same is a good and valid lien upon the said mortgaged premises, for the whole of said principal and interest, as aforesaid, and that there is no counter claim or offset against the said bond and mortgage, nor any defense thereto in law or equity.”
    The court at General Term say: “ It seems to us very clear that the plaintiffs were at liberty to show that they acted in good faith in making the purchase of the mortgage, and believed the certificate to have been given in good faith and to be true, and that the exclusion of evidence tending to show these facts was manifest error. Such a certificate is no estoppel when it is not taken in good faith, and with reliance upon the correctness of. its statements, and the party who receives it on such a purchase as this cannot use it as an estoppel, if he himself did not, in good faith, believe its contents and roly upon its assertions. But, in all cases, the purchaser is at liberty to show his good faith in the transaction, and that he did, in . fact, rely upon the certificate. The court found that in this case the respondent signed the certificate in entire ignorance of its contents and without knowing the purpose for which it was to be used. Of course, a certificate fraudulently obtained from the mortgagor could not operate as an estoppel against her, although the purchaser acted in good faith in relying upon it. But the court does not find any such fraud, nor would the evidence have justified it. It appears that she signed the certificate when presented to her by a clerk of her own agent, Windle, the mortgagee, without reading it, and apparently with entire indifference as to its contents. She thus, so far as the case shows, by her own negligence, armed her own agent with power to commit a fraud upon the plaintiffs, assuming that they acted in good faith, relying upon the certificate.” .

      M. L. Townsend, for the appellants. Dudley Field, for the respondent.
   Opinion by

Davis, P. J.

Present — Davis, P. J., Beady and Daniels, JJ.

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


text:
    SETH CHAPMAN AND others, Respondents, v. RANDALL G. COWENHOVEN, NICHOLAS R. COWENHOVEN and others, Appellants

      Pa/rtiiion — what constitutes sufficient possession to sustain action of — vested estate subject to right of possession by a trustee.

    Appeal from an order made at Special Term, overruling a demurrer to the complaint.
    This action was brought for the partition of certain real estate in the city of .New York. The complaint alleges that one Garretta Cowenhoven was, at the time of her death, seized of the premises in question, and by her will devised one equal undivided third thereof to each of her children, Tennis, Nicholas and Matilda, for life, and thereafter to their respective heirs and assigns; that Tennis and Matilda had died, leaving issue, and the share of Matilda’s issue had, by certain mesne conveyances, become vested in the plaintiff. There was a question whether, under a proper construction of the will, the trustees were not entitled to the possession of the entire property until the completion of all the trusts. Nicholas Cowenhoven, one of the three children, appears to be still living, and the defendant Bandall G. Cowenhoven, the son of Teunis Cowenhoven, who is deceased, demurs to the complaint upon the ground that the plaintiffs cannot maintain the action for partition while other persons, to wit, the trustees under the will, are entitled to the possession of the lots for the purpose of executing the trust.

      Tlie court at G-eneral Term say, “that the point so presented was not altogether free from doubt. The plaintiffs are, however, seized in fee of the interests which they claim to have derived from the children of Matilda Wilson, and their estate is subject to no existing life estate, although, if the trust is valid, it may be subject to a right of possession in the trustees for the purpose of continuing to execute the trust created by the will. Having such an estate they are, according to the views expressed by DeNIo, Oh. J., in Blakely v. Ooldex (15 N. Y., 625) (which, though not adopted as the opinions of the court, .were strongly confirmed by the concurrence of three of the other judges of the court) entitled to be regarded as having sufficient legal possession to uphold their action for partition. (See MeOlone v. Goodwin, 3 Daly, 185.) ”

      H. G. Place, for the appellants. William J. Sayres, for the respondents.
   Opinion by

Davis, P. J.

Beady and Daotels, JJ., concurred.

Order affirmed.


author: Dayis, P. J.

text:
    HORATIO N. DEVOL, Respondent, v. DAVID BARNES, Appellant.

      Pmty in interest— Promissory note — holder of, when can sue.

    Appeal from judgment in favor of the plaintiff, entered on the verdict of a jury.
    This action was brought to recover the amount of a draft and four promissory notes made by the defendant. The draft was drawn by the defendant on the plaintiff, and was accepted by him. The answer set up payment of the draft, bnt no defense to it was made upon the trial. The notes were made by the defendant to other parties, and were indorsed by them before suit to the plaintiff. It appeared upon the trial that the notes were delivered to the plaintiff by the payees, under an arrangement, in substance, that he should go from New Albany, Indiana, to the city of New York, and collect the notes, and then account to the respective indorsers for the proceeds of the notes over and above their respective shares of plaintiff’s expenses and the expenses of collection. The defense relied upon was, that the plaintiff' was not the real party in interest.
    The court at General Term say: “ The legal title of the claim sued upon is very clearly vested in the plaintiff. * * * The plaintiff
    received transfers of the notes, undertook their collection at his own risk, and his right to the expenses which he might incur in coming to New York and in collecting the notes depended upon his success. He was not at liberty under the arrangement to subject the former owners of the notes to any expense by bringing suits in their own names, but was to collect in his own name and account for the proceeds. This was the substance of the arrangement, and it gave him the legal title and perhaps it might be said to have made him a trustee under an express trust.”

      George H. Foster, for the appellant. William Man, for the respondent.
   Opinion by

Dayis, P. J.

Brady, and Daniels, JJ. concurred.

Judgment affirmed.


author: Daniels, J.

text:
    THOMAS F. SHARKEY, Respondent, v. JEAN G. TORRILHON, Appellant.

      Practice — JNew 1/rial — motion for on ground that verdict is against the weight of evidence — when granted on judge's minutes — Weight of evidence.

    Appeal from a judgment in favor of the plaintiff recovered on a verdict, and from an order denying a motion of the defendant for a new trial upon the minutes of the court, on the ground that the verdict of the jury was against the weight of evidence.
    The action was brought to enforce the specific performance of a contract for the purchase of certain real estate, provided such performance could be • decreed; and otherwise for the recovery of damages for a breach of the contract. The jury found a verdict for the plaintiff, and assessed his damages at $7,000. Whereupon the defendant moved for a new trial upon the minutes, upon the ground that the verdict was against the weight of evidence. The motion was denied, and the defendant appealed.

      The court held, that a verdict against the weight of evidence, although not within the express terms used in section 264 of the Code, declaring that the judge may entertain the motion upon exception, as for insufficient evidence or for excessive damages, yet it is clearly within its intention and spirit. A verdict against the clear weight of evidence would not be supported by sufficient evidence. The undoubted intention of the legislature was to provide an expeditious and inexpensive proceeding by means of which the errors of jurors could be readily, and without any formal proceedings, corrected by the judge having the case before him upon his minutes. (Citing Algeo v. Duncan, 39 N. Y., 313.)
    The court further held, that the evidence in this case was insufficient to support the verdict of the jury.

      A. J. Requier, for the appellant. Beebe, Wilcox dc Hobbs, for the respondent.
   Opinion by

Daniels, J.

Davis, P. J"., concurred.

Yerdict set aside; new trial ordered on payment by the defendant, within twenty days after notice of the decision, of the costs of the trial already had, and costs of opposing motion; costs of appeal to abide event.


author: Bockes, J.:

text:
    THE VILLAGE OF GLOVERSVILLE, Respondent, v. WILLIAM HOWELL and FRED. HOWELL, Appellants. THE SAME v. THE SAME. THE SAME v. JOHN J. MASON. THE SAME v. THE SAME.

      Excise laws — chap. 505 of 1873 — chap. 444 of 1874 — Village chart'terr— how affected by subsequent general laws on the same subject — Local regulations, homing the force of laws — may be committed to the people of the district — St. Const., amt. 3, § 16.
    The general excise law for the entire State (chap. 444,1874;, giving rights of action for penalties to overseers of the poor, does not repeal by implication the provisions in that behalf of an existing village charter, which authorized such actions in the name of the village.

      Village of Deposit v. Vail (12 N. Y. [5 Hun], 310), and Village of Cohoes v. Moran (25 How., 385) approved.
    Where a village charter, entitled "An act to reorganize the village of Gloversville,” confers municipal powers, and also includes the right to mate police regulations and prohibit the sale of intoxicating liquors, held, that these latter provisions were germain to the title of the act, and subjects properly within the objects. of municipal duties and regulations; and that suoli charter was not void on the ground that it was in violation of the provision of the Constitution, which declares that no private or local bill shall embrace more than one subject, and that shall be expressed in the title.
    The fact that a village charter provides that the question of the absolute prohibition of the sale of intoxicating liquors is to be submitted to the popular vote in the village, does not invalidate the act. While only general statutes can be enacted by the legislature, yet it is well settled that the power to make local regulations, having the force of law in limited localities, may he committed to the people of those districts themselves.
    ■ Appeal by the defendants from a judgment, rendered on the verdict of a jury against them, for selling liquor without a license.
    The complaint charged an unlawful sale by the defendants of spirituous liquors, to be drank on their premises in the village of Gloversville, on each of the days, commencing on the 12th day of February, 1875, and ending with the 13th day of March of the same year.
    The defendants interposed as a defense: 1. A general denial. 2. That the right of action, if any existed, was not in the village of Gloversville, but was vested in the overseer ‘of the poor of the town of Johnstown, which town embraced the said village. And, 3. That they had license to sell from the town board of excise, from and after the 22d day of February, 1875, and justified thereunder for all sales from its date.
    On the trial it was proved that the defendants were hotel-keepers in the village of Gloversville, and sold liquor at thei>r hotel by the glass on every day between February 12th and March 13th, 1875, and several times each day, except from and including the eighteenth February, to and including the twenty-second of the same month. The defendants produced a license to sell, granted them by the town board of exise, dated February 22d,1875, for the period of one year from its date. It was also admitted that, by a vote taken pursuant to the charter of the village (chap. 505 of 1873), on the first Tuesday of March, 1874, and again on the first Tuesday of March, 1875, a' majority voted against license. The judge before whom the cause was tried, without a jury, with other material facts, found that the defendants sold strong and spirituous liquors at the time and times charged in the complaint, without license, to the number of thirty times, one-half of which was after February 22d, 1875, and directed judgment against them for $1,500. From this judgment, entered pursuant to such direction, the defendants appealed to the General Term.

      Earl & Smith and H. B. Cushney, for the appellants.

      H. E. Smith and C. M. Parke, for the respondent.
   Bockes, J.:

The first objection here urged, to wit, that the action cannot be maintained in the name of the village of Gloversville, is answered by the decision of this court in The Village of Deposit v. Vail (12 N. Y. Sup. Ct. R. [5 Hun], 310). It was there held, adopting the opinion of Judge Edwards, county judge, in that case, that a subsequent general excise law for the entire State, giving rights of action for penalties to overseers of the poor, would not repeal by implication, the provisions in that behalf of an existing village charter, which authorized such actions in the name of the village. The decision in The Village of Cohoes v. Moran (25 How., 385), is an additional authority on this question. This point, therefore, needs no further comment, save to repeat our satisfaction with the reasoning and conclusion of Judge Edwards in the case cited.

Nor can it be maintained that the village charter is void in its provisions here under discussion, on the ground that it is in violation of the Constitution, which declares that no private or local bill shall embrace more than one subject, to be expressed in the title. (Art. 3, § 16, State Const.) The title is a general one, it is true, “An act to reorganize the village of Gloversville.” But such general title is sufficient as to all subjects properly within the object of municipal duties and regulations. So it was held In re, etc. (50 N. Y., 504), that this provision of the Constitution was complied with if the title of the act fairly and reasonably announces the subject, and that a single one, and if the various parts thereof have respect or relate to that subject. The purpose of the charter was' to confer municipal powers; this, of course, involved police regulations. The inhibitions upon the sale of intoxicating liquors have been frequently held to come appropriately under that head. Thus the provisions of law, here under examination, are manifestly germain to the title of the act; and this remark will well apply to the prohibitory provision in the charter. Nor did the fact that the-question of absolute prohibition was to be submitted to the popular vote in the village invalidate the law. It is now well' settled that while general statutes must be enacted by the legislature, the power to make local regulations, having the force of law in limited localities, may be committed to the people of those districts themselves. (18 N. Y., 38; 23 id., 439; 26 id., 467—471, 472; 28 id., 605.) It was competent therefore for the people of the municipality, being authorized by law so to do, to determine by popular vote the question of license or no license within the bounds of the village. The provisions of the charter brought under examination by the appeal in this case are not, as I think, unconstitutional. But it is insisted that the prohibitory clause, and the authority to grant licenses by the board of trustees of the village, are repealed by the act of 1874, creating town boards of excise; and, further, that the license to the defendants by the town board protected them from and after February twenty-second, the day of its date. It may be well to note the provisions of law applicable to this particular subject at the time the charter of the village of Gloversville was adopted, May 14, 1873. At that time the general laws provided for a board of commissioners of excise in each of the cities, incorporated villages and towns of the State. In cities such boards were composed of three members to be appointed as by law provided. In incorporated villages, they consisted of the president of the board of trustees and two trustees to be designated by the board of trustees. And in towns they consisted of the supervisor and justices of the peace. The right to grant licenses was confided to such boards by the general law. Then came the special act incorporating the village of Gloversville, known as its charter. This'law contained other and special provisions in regard to the sale of intoxicating liquors. It provided for the granting of licenses by the board of trustees of the village, instead of by a board of commissioners of excise having its authority under the general act applicable to the entire State. And the authority to the board of trustees to grant licenses at all was made dependent on the vote of the people on the question of license or no license. Now we need to proceed no further, to observe that the village charter created a separate and distinct system from that enunciated by the general act, as regards the sale of intoxicating liquors. The' authority to license was conferred upon the board of trustees; not upon a board of excise, provided for in and by the general law. The board of trustees was also limited in its action, in that regard, to meet the requirements of a contingency, dependent upon the popular vote of the municipality. No such limitation attached to the board of excise under the general law. Thus the inhabitants of Gloversville were made subject to special provisions, with reference to the sale of intoxicating liquors. On this subject, and under the charter, they had a law to themselves. Thus stood the case prior to the act of 1874; that is, as is well said by counsel, the general act of 1870 and the special act of 1873 were both in force — the latter in Gloversville, and the former elsewhere in the State — and there was no conflict, or repugnancy between them. Then, are the provisions of the charter above considered repealed by the more recent law of 1874? They are not expressly repealed; if repealed it is by implication. The act of 1874 maltes no reference in terms to the village charter of Gloversville, nor is the latter, or any of its provisions, embraced in its general application; for, as will be seen on careful examination of that act, it provides for boards of excise to “discharge the duties imposed upon the supervisors and justices of the peace of towns, and the president and trustees of incorporated villages thereof, by chapter 175 of the Laws of 1870, and laws amendatory thereof, and supplementary thereto.” This leaves the provisions of the charter of Gloversville untouched; inasmuch as the “ duties imposed” upon the president and trustees of that village were imposed by its charter,'and not by chapter 175 of the Laws of 1870, or by any amendment thereof or supplement thereto. Thus, according to the exact language of the act of 1874, the village of Gloversville was excepted from its provisions as regards the subject of excise, and that village was left to be governed by its charter. This is the plain import of the law, and it is reasonable and right in itself. Thus it is seen that the act of 1874 was intended to reach and cover the ground embraced within the provisions of the act of 1870, as amended and .supplemented, nothing more. And we have seen, also, that the provisions of the village charter of Gloversville stood separate and distinct from that act. The case before us may therefore be considered, as if the act of 1874 had no existence. In so far as this question of granting license is concerned, it has no application to the village of Gloversville; the municipal affairs of that village, including the regulating of the sale of intoxicating liquors, are controlled by the provisions of its charter. The case in hand differs from Harrington v. Trustees of Rochester (10 Wend., 547), where the provisions of the Revised Statutes extended to, and were intended to embrace the city of Rochester. As said by Air. Justice Savage, the terms used (in the Revised Statutes) were general and comprehensive, and applied to the whole State. Here, however, the act of 1874 was no more comprehensive than was the act of 1870, with its amendments and supplements, which, as we have seen, left the village of Gloversville outside its purview, to be governed by its charter. Certainly there is no repeal of any of the provisions of the charter in terms, nor is there, as I think, any repeal of them by implication. In no respect are the provisions of the act of 1874, and those contained in the village charter, in distinctive antagonism. That act and the charter -may both stand together; there is no absolute repugnancy in their provisions; the remark of Air. Justice HogebooM, in The Village of Cohoes v. Moran (25 How., 385), may be well adopted as applicable to this case. He says, in my opinion, the provisions in question may well be upheld as a valid police regulation, sanctioned by the legislature, and applicable to the particular locality, without coming in collision with any of the provisions of the general law; and he suggests that even if some of the provisions should be cumulative in their operation, they should not be held repugnant, in a sense to effect a repeal by implication. If these conclusions be sound, the subject of excise, as regards the village of Gloversville, is controlled by the provisions of the village charter, notwithstanding the act of 1874. The authority to grant licenses for the sale of intoxicating liquors within the village limits rests with the board of trustees, and is dependent on the popular vote of the municipality, as provided in the charter.

In this case, therefore, the defendants were without justification in making the sales of intoxicating liquors proved against them. They had no license to sell from the board of trustees of the vilLage. For part of tlie time embraced in the complaint they held a license from the town board of excise, but that was unauthorized in law, and, of course, afforded them no protection. We are of the opinion that the decision of the learned judge at the Circuit was right, and that the judgment should be affirmed. This conclusion disposes of the other three eases argued in connection with this one. The judgment in each of those cases must also be affirmed.

LEARNED, P. J., and Bocees, J., concurred.

Judgments affirmed with costs.


author: Bookes, J.:

text:
    AUSBURN BIRDSALL, Respondent, v. THOMAS J. CLARK, JAMES DILLON and JOHN C. BOWERS, Appellants.

      Street repairs — Binghamton—powers and duties of superintendent of streets in — want of appropriation for repairs, does not render him liable in trespass — Injury to plaintiff ’s property — not a question that can be considered by the court.

    The common council of Binghamton, having power to authorize the repair of streets, passed resolutions, approved by the mayor, to repair them in front of plaintiff’s premises, the repairs to be completed by a certain date, which resolutions were served on plaintiff. There was no direction in them for the superintendent of streets (the defendant Clark) to do the work; but there was a previous general resolution of the common council, that the superintendent do the work, in accordance with the directions of the common council, unless the owner of the premises should cause the same to he done before the expiration of the time limited.
    The plaintiff having failed to do the work in the time required, the superintendent, with others under him, proceeded to do it.

      Held, that he could not he restrained on the ground that there was no direction for him to do the work, in the specific resolutions directing this work,to be done.
    Held, further, that although the section of the charter which prescribes the duties of the superintendent, declares that he'shall discontinue the repairs when the appropriation therefor should he exhausted, that this provision in no way abridges or restrains the authority of the common council to grade, .repair and improve the streets and sidewalks of the city; nor does it authorize a third party to treat the common council and the superintendent as trespassers, for proceeding to make and repair streets, for the expenses of which there has been no appropriation.

      Held, further, that the fact that the plaintiffs property would be greatly injured by such work, could not be here considered by the court, as they were concluded by the action of the common council in that regard, such common council being vested with discretionary powers, involving judgment, in directing the improvement.
    Appeal from a judgment of the County Court of Broome county against the defendants, entered on the report of a referee.
    The plaintiff was the owner of certain premises fronting the north side of Court street in the city of Binghamton. On the 29th July, 1873, the common council of the city passed a resolution, which was approved by the'mayor, directing the setting of curb-stones along the north side of Court street, according to the established grade therein specified, to be completed on or before the twenty-fifth of August, then next. A copy of this resolution was served on the plaintiff on the 2d of August, 1873. On the twenty-ninth of September of the same year, the common council passed a resolution, also approved by the mayor, directing the sidewalk in the street in front of the plaintiff’s premises to be graded, and the flagging to be raised and relaid, as therein specified, and to correspond with said curbing; all to be completed on or before the fifteenth of October then next. A copy of this resolution was also served on the plaintiff on the 2d day of October, aforesaid.
    There was a standing resolution, passed by the common council on the 11th June, 1870, approved by the mayor, directing the superintendent of streets to grade and build the sidewalks, or cause the same to be graded and built, in accordance with the directions of the common council, unless the owner of the premises, in front of which the work was required, should cause the same to be done before the expiration of the time limited therefor. The plaintiff omitted to grade the sidewalk in front of his premises,-as required by the aforesaid resolutions, whereupon the defendant Clark, who was superintendent of streets, proceeded to do so pursuant thereto, and employed the other defendants to assist him in the work. This action was brought to restrain them in that regard.
    The referee held that the common council had the right to make and establish the grade of Court street, and to order and direct the

      setting of the curb, and the grading and the relaying of the sidewalk in front of the plaintiff’s premises; bnt further held that the superintendent had no legal right or authority'to do this work or cause it to be done, under the resolutions above mentioned, and directed judgment against the defendants for three dollars damages, and restraining them from further action in so far as would affect the plaintiff’s premises. '
    Section 14, title 8 of the charter of the city of Binghamton, as amended by chapter 53 of 1870 (page 133), provides that the building and maintaining in good order of all sidewalks, the grading, and; setting of curbstones therefor, should be done at the expense of the-premises in front of which they are required. * * "* And whenever it shall become necessary to do any such work the common council shall order it done within a time specified; and in case the said premises shall be in the actual possession of any person, such person, or the owner of the premises, shall be served with a notice, in which shall be stated, in general terms, what has-been ordered to be done and the time within which it has been required. * * * If any work shall not be done within the time limited therefor the common council shall, by contract or otherwise, cause it to be done and assess the expenses thereof, with ten per cent addition, upon said premises or upon the owner thereof.
    Section 14 of title 5 of the charter (chap. 291, 1867, page 611), provides that the superintendent of streets shall, under tile common council, superintend all repairs and improvements upon the streets, crosswalks,' sidewalks, gutters, * * * except as otherwise provided. lie shall perform such other duties connected therewith as may, from time to time, be required by the common council. *• * * "Whenever the common council shall order any of the repairs or improvements to be made, or any of the work to be done specified in this section, they shall, in the resolution making such order, direct as to the time and manner of making such repairs or improvements or doing such work; and shall also make such appropriation therefor as they shall deem necessary. When such appropriation is exhausted the superintendent shall discontinue the repairs, improvements or work for which the same was made, etc.
    By section 4 of chapter 28 of an ordinance of the common council defining the duties of certain officers, it is provided that “whenever any resolution shall be passed by the common council directing any of the work to be done, the oversight of which the superintendent is charged'with by the charter, he shall immediately obtain from the clerk a copy of such resolution and proceed to execute the same as therein required.”
    Judgment being entered the defendants appealed to this court.

      A. Birdsall, in person.

      Scovill & Be Witt, for the defendants.
   Bookes, J.:

No question is made as to the authority of the common council to fix and determine the grade of streets and sidewalks of the city of Binghamton, and to direct the necessary work to carry out its orders in that regard. Nor is it denied that the common council may authorize the superintendent of streets to execute its lawful directions in constructing, grading and regulating the streets and .sidewalks of the city. Such power and authority is expressly conferred by the city charter. So the referee held; but he decided further that the defendant Clark, as superintendent of streets, had no right or authority to do or cause to be done the work complained of, under the resolutions of the common council of July twenty-ninth and September twenty-ninth; or, in his own language, “ no legal right or authority to do, or cause to be done the work directed by said common council by resolution of July 29th and September 29th, 1873; and that none of the defendants had the right to take up, grade or relay the plaintiff’s sidewalk.” The respondent seeks to justify this conclusion on two grounds: 1st. That no appropriation had been made for the work by the common council. And 2d. That there was no direction by the common council to the street superintendent directing him to do this specific work, which the owner had neglected to do.” It is a complete answer to the first ground above stated, that there is nothing in the charter or ordinances of the city requiring an appropriation to precede the grading and putting in order of streets or sidewalks on the direction of the common council. General power is given that body to direct the work and to cause it to be done. This authority in the common council stands in full vigor, without qualification or restraint, as regards the question of justification for any action taken under it, growing out of the absence of an appropriation to meet the expense. In the section of the charter which prescribes the duties of the street superintendent, after defining his powers, among which is the superintending of all street repairs and improvements, it is declared that he shall discontinue the repairs, etc., when the appropriation therefor should be exhausted. This provision has application to the rights and duties of the superintendent; but in no way abridges or restrains the authority of the common council in its right and power to grade, repair and improve the streets and sidewalks of the city. It does not authorize a third party to treat the common council and the street superintendent as trespassers for proceeding to make and repair streets and sidewalks, for the expense of which work there has been no appropriation. The decision of the referee must be supported on the other ground put forward by the respondent, or it is without justification..

The next question is, whether there was a direction by the common council to the street superintendent to do the work complained of. It seems that there were resolutions of the common council fixing and determining the grade of the street, and directing the curbing, grading and flagging of the sidewalk in front of the plaintiffs premises, full and specific in all necessary particulars. It was now competent for the city authorities to proceed with the improvement, and to cause the sidewalk to be put in the condition authorized by the previous action of the common council. This duty devolved upon the street superintendent; and there was a standing or general resolution authorizing and directing him to proceed and execute the orders of the common council as to all such improvements. This resolution covered the case as well and effectually as if a special resolution had been adopted, subsequent to the' plaintiff’s omission to do the work, directing its performance by the superintendent. Whether or not the plaintiff could be charged with the expense, is quite another question. The resolution directing the improvement specified a time within which the work was to be done, and this, as well as the previous one fixing the grade, was duly served on the plaintiff, and he omitted to comply with their requirements. Thereupon the work was assumed by the superintendent. But the question whether the proceedings were such as would bind the plaintiff to the payment of the expense is not before us. The question now is, whether enough was shown to protect the defendants against the charge that they were trespassers. Now in this case there was authority in the common council to authorize and direct the improvement. This was done by that body. The defendant Clark, as superintendent, had authority to carry such direction into effect. The other defendants acted under him as his agents or servants, and were justified and protected to the same extent as he was justified and protected, and by the view above taken of the case, the action of those parties had the sanction of law. They were not trespassers; hence the plaintiff established no cause of action against them.

We are not at liberty to take into consideration the alleged fact, that the plaintiff’s property will be greatly injured by the work. We are concluded by the action of the common council in that regard. That body was vested with discretionary power, involving the exercise of judgment, in directing the improvement. However injurious to the plaintiff its action in that behalf may be, cannot be here considered. (1 Denio, 595; 20 Barb., 620; 26 id., 133; 38 id., 232.) Acts legally done, although injurious, give no right of action.

We are of the opinion that the judgment must be reversed.

Judgment reversed, with costs to abide the event, arid, in accordance with the general rule, the reference is discharged.

LeaeNed, P. J., and BoaedmaN, J., concurred.

Judgment reversed, new trial ordered, costs to abide event; referee discharged.


author: Bocees, J.:

text:
    MARGARET B. CRANE AND JOHN J. CRANE, Executors of THEODORE CRANE, Deceased, Respondents, v. ROBERT T. TURNER, Appellant.

      Mortgage — executed, before execution of deed of premises covered, thereby — when valid — such mortgage recordable before execution of deed — Subsequent mortgagee, having notice of the mortgageable interest, bound to sea/i'ch the record.

    Where, at the date of a mortgage, the mortgagor had a mortgageable interest (being in possession of the premises under a parol contract of sale), such mortgage is legally recordable, though the mortgagor had not then acquired the absolute fee ; and the holder of a subsequent mortgage is bound thereby.
    While, as a general rule, a purchaser is not bound to search the records for incumbrances as against a title not appearing by the records, yet the rule is not applicable where he has actual notice of the existence of a mortgageable estate, in the person against whom the search is made, prior to the date of the evidence of such person’s title to an absolute fee, and the law charges him with notice that this estate was mortgageable, and if mortgaged, that the mortgage might have been recorded, and his own mortgage is therefore a subsequent lien thereto.
    Appeal from a judgment entered, on a decision at Special Term. The facts in the case were, that on February 18, 1865, Ethan A. Pierce purchased a farm in 'Truxton, New York, by parol, and immediately entered into possession thereof, paying- part of the purchase-price. March 21, 1865, Pierce executed a mortgage to Aurora O. Pierce, which was recorded October 12, 1865. October 31, 1865, the farm was conveyed to Ethan A. Pierce, by a deed which was recorded February 17,1866; which deed recited that Pierce had been in possession of .the farm since February 18, 1865, under a contract for its purchase. March 12, 1868, Aurora O. Pierce assigned said mortgage ;o the plaintiff’s testator, which assignment was recorded September 28, 1871. January 28, 1870, Ethan A. Pierce conveyed the premises to his son, J. Dennison Pierce, and took back a mortgage which was recorded February 3, 1870. J. Dennison Pierce had notice of the existence of the mortgage to Aurora O. Pierce. August 1, 1870, Ethan A. Pierce assigned the mortgage given by J. Deuuison Pierce, to Robert T. Turner, which assignment was recorded October 17, 1871. Turner searched the records back to the date of Ethan A. Pierce’s deed, read it and had actual knowledge of its contents. He inquired of Ethan A. Pierce if the mortgage executed by J. Dennison was the first lien, and- was informed that it was. He made no other inquiry, and neglected to search the'records back to February 18, 18G5, the date, since which he was informed by Ethan A. Pierce’s deed, that Pierce had been in possession under a' contract of purchase. Turner paid a full consideration, upon his purchase of the mortgage executed by J. Dennison Pierce, and had no actual knowledge of the existence of the plaintiffs mortgage. The question litigated was: Which mortgage was the prior lien?
    The following is the opinion delivered at Special Term, and referred to in opinion of BooKes, J., below :
    Follett, J. Any present interest, legal or equitable, in real or personal property, which can be the subject of a sale, may be the subject of a mortgage (1 Hilliard on Mortgages, chap. 1, § 4; 4 Kent’s Com., 144). At the date of the execution of the plaintiff’s mortgage by Ethan A. Pierce, said Pierce was in possession of this farm under a parol contract of purchase, having paid a part of the purchase-price (which contract afterwards was decreed to be and was performed), and Pierce was therefore possessed of a defeasible estate of inheritance in the farm. This estate could have become the subject of a sale; it was devisable, or in case of the death of Pierce intestate, would have descended to his heirs; and was therefore mortgageable.
    Plaintiff’s mortgage was a “ conveyance ” within the thirty-eighth section of chapter 3, of part 2 of the Revised Statutes. The mortgagee was a purchaser within the thirty-seventh section, and the estate mortgaged was “ real estate or any portion thereof)” within the first and thirty-sixth sections; and, for these reasons, the mortgage was, at the date of its record, legally recordable, though the mortgagor had not then acquired the absolute fee, and though the evidence of his title to a less estate'had not then been executed; and the plaintiff’s mortgage was duly recorded as against the defendant Turner, claiming under the same title.

      Section 1 of the recording act provides that: “ Every conveyance of real estate * * * shall be recorded, * * * and every conveyance not so recorded shall be void, as against any subsequent purchaser iu good faith and for valuable consideration, of the same real estate or any portion thereof, whose conveyance shall be first duly recorded.”
    “ If,” in the language of Chancellor Kent, in ParMst v. Alexander (1 Johns., 898), “ this does not mean that a mortgage duly recorded shall be preferred to a subsequent Iona fide deed without notice, it is senseless and idle, and worse than idle — it is delusive, and a snare to the unwary.”
    This case arose under the act of 1801 (1 Rev. Laws 1801, 480), and Johnson v. Stagg (2 Johns., 510), arose under the act of 1788 (2 Jones & Yarick, 266), yet, as to the question here involved, there is no difference in principle between either of these acts and the Revised Statutes; and it must be held that the plaintiff’s mortgage is the prior lien.
    But it is not necessary to place the conclusion arrived at solely upon the foregoing grounds. "While it is true, as -a general rule, that a purchaser is not bound to search the records for incumbrances as against a title not appearing by the records (Cools v. Travis, 20 N. Y., 402; Losey v. Simpson, 3 Stockton, 246; Gerard’s Titles to Real Estate, 593), still this is not an universal rule, and is not applicable when the purchaser has actual notice of the existence of a mortgageable estate, in the person against whom the search is made, prior to the date of the evidence of such person’s title to the absolute fee, as in this ease. Turner personally searched the records back to and found the deed to Ethan A. Pierce, which recited that Pierce had been in possession of the farm since February 18, I860 (a date prior to the date of plaintiff’s mortgage), under a contract for its purchase; and upon his cross-examination, Turner testified as follows:
    Q. “ You found a conveyance to Ethan A. Pierce, I suppose ? ” A. “ I did; yes, sir.”
    Q. “ And you knew, by the recitation in that, that he had been in possession since the preceding February % ” A. “ Yes, sir; I knew whatever the deed recited.”
    Thus, by this recital, having actual notice that Pierce had been possessed of this estate in the farm since February 18, 1865, and the law charging Turner with notice that this estate was mortgageable, and that, if mortgaged, the mortgage might have been legally recorded, he was bound by the record of the plaintiff’s mortgage and the recital; and his own mortgage is a subsequent lien to the mortgage of the plaintiff.
    But, conceding that the record of the plaintiff’s mortgage, together with the recital, do not amount to a statutory-or con-, structive notice, yet it was sufficient to have put Turner upon inquiry. He was apprised that Pierce had possessed a mortgageable estate since February 18, 1865, and he was bound to inquire diligently in the direction most likely to afford information; and it was not due diligence to stop short at the date of Ethan A. Pierce’s deed in his search of the records, and then only inquire of Ethan A. Pierce, the person who was then interested in selling this second mortgage and making it appear a first lien. If, January first, a grantee receives a deed and enters into possession, but neglects to record the deed, it is destroyed and subsequently he receives a new deed bearing a later date and reciting that it is confirmatory of a deed dated January first under which he has been in possession since that date, and which deed has been lost, it would not be held that a search back to the date of the confirmatory deed, was due diligence in a person who had actual notice of the recital, even though accompanied by inquiry of the grantee; and, if he should take a mortgage and record it, it would not have precedence over a duly recorded mortgage, given between the dates of the first and second deeds.
    The defendant Turner invokes the application of section 143 of chapter 1, part 2, Revised Statutes, and contends that the plaintiff’s mortgage not containing covenants of title, it operated only upon the title which Ethan A. Pierce then had. While a mortgage, as well as an assignment of a mortgage, is a conveyance within the chapter relating to the recording of conveyances, no authority has been cited that a mortgage under the statutes of this State, is .a “grant or conveyance” within the meaning of section 143 of chapter 1, part 2. Article 4 is Of alienation by deed.
    At an early period at common law, before the right of an equity ' -of redemption after condition broken had been established, the mortgagee (upon condition broken) became vested with an absolute and irredeemable title, for which ejectment could be maintained against the mortgagor; and the doctrine of covenants for title, was applied' upon the theory that the mortgage conveyed the legal title. But there is now a broad distinction between a mortgage and even a conditional deed. No legal estate vests or is intended to vest in the mortgagee. This mortgage stands merely as security for a debt, and his interest is a chattel interest; and never, by the mere operation of a mortgage, does title vest in the mortgagee, and the absence of covenants for title in the plaintiff’s mortgage does not affect the result; and a judgment decreeing the plaintiff’s mortgage the prior lien is ordered, with costs.

      M. M. Waters, for the appellant.

      Wm. G. Choate, for the respondents.
   Bocees, J.:

We are entirely satisfied with the opinion of Mr. Justice Follett in this case. We concur with him that the mortgagor in the plaintiffs’ mortgage had a mortgageable interest in the premises at the time that mortgage was given and recorded. He well found, also, that the mortgagee in the defendant’s mortgage had knowledge of the plaintiffs’ mortgage when he took it; and the learned judge was undoubtedly right in his conclusion that the defendant Turner must be held, under the proof, to legal notice of the existence of the plaintiffs’ mortgage when he accepted the assignment of his mortgage from his assignor. Therefore, néither the defendant’s assignor, who was mortgagee in the security, nor-the defendant himself, held the position of a iona fide mortgagee as against the holder of the plaintiffs’ mortgage. Thus the defendant Turner could not claim priority of payment over the plaintiffs from the avails of the sale of the mortgaged premises.

We are quite willing to adopt the reasonings of Mr. Justice Follett, and his conclusions both of fact and law.

The judgment should be affirmed with costs.

Learned, P. J., and Boardman, J., concurred.

Judgment affirmed with costs.


text:
    ROBERT HOOD and JACOB HOOD, as Executors of, etc., of HENRY HOOD, Deceased, Respondents, v. RICHARD HALLENBECK, HENRY SHELDON, R. ALLISON, N. G. PULTZ, WILLIAM SHARTS, PETER J. BACHMAN and WILLIAM HULL, Appellants.

      Corporate note — when makers of not liable, althougJi signed by their individual names.

    A note was signed by five persons with, the description added, “ Trustees of St. John’s Ev. Lutheran Church, Hudson, N. Y.,” and stamped with the corporate seal of the corporation, made payable to the order of one Peter J. Bachman, and duly indorsed by him and two others to the plaintiffs. An action was brought against all the makers and indorsers individually. On the trial it was shown that the corporation was indebted to the payee, Bach-man, who requested a note for the amount of his claim, whereupon the note in suit was executed and delivered. There was no evidence that the makers intended individually to assume the church debt. A personal judgment was rendered against all the defendants.
    On appeal, held, erroneous as to the makers; that proof of the circumstances under which the note was given, with a view to determine the defendants’ liability, was admissible, and the makers were not personally liable.
    Held, also, that the plaintiffs stood in no better position on this question than would the payee, Bachman, inasmuch as the note, on its face, disclosed the fact that the defense here interposed existed, or that proof to establish it was admissible.
    Appeal by the defendants from a judgment rendered against them on the direction of a justice of this court, before whom the case was tried without a jury.
    The action was against the defendants as makers and indorsers of a promissory note in the words and figures following, to wit:
    “ $550. Hudson, June 1, 1871.
    “ Six mouths after date we promise to pay to the order of Peter J. Bachman five hundred and fifty dollars, with interest, for value received.

      Indorsed as follows, to wit:
    “ Interest paid to April 1, 1872.
    “ Interest paid to April 1, 1873.
    “ Witlr waiver of protest.
    “PETER J. BACHMAN.
    “ R. HALLENBEOK.
    “ WILLIAM HULL.”
    The note and indorsements were set out in the complaint, which contained all necessary averments to charge the parties personally as makers and indorsers. The five persons sought to be charged as makers answered jointly, but separately from the indorsers. They set up that the note was given and accepted as the obligation of the corporation, “ The St. John’s Evangelical Lutheran Church of Hudson, N. Y.,” for the debt of the corporation, and denied their personal liability thereon. The indorsers Bachman and Hull answered for themselves; set up the same matter of defense, and denied their liability as indorsers. On the trial it was proved that the note was given for an indebtedness of the corporation to the payee; that the makers and payee were its .trustees; and that the seal attached was its corporate seal. The circumstances attending the making of the note, as proved, were as follows: The payee, Bachman, was chairman of the church building committee, and, as such, had made advances for the corporation. He presented his account therefor to the trustees, and it was allowed ; he requested a note and the note in suit was given him. On the facts above detailed, judgment was rendered against the makers and indorsers, personally, for the amount unpaid on the note. Exceptions were filed to the findings of the court, both on the facts and law.

      R. Hood and Monell c& Van Wyolc, for the plaintiffs.

      S. L. Mcigowi' and R. E. Andrews, for the defendants.
   Bockes, J.:

The right of action against Bachman, Hallenbeck and Hull, as indorsers, seems to be well established in this case. The note was set out in the complaint with the indorsements in full; and all necessary averments were made to charge those persons as indorsers. They denied their liability. On the trial, the genuineness of their signatures was admitted under an express waiver of protest. They indorsed “ with waiver of protest! Such waiver relieved the holder from making demand and giving notice of non-payment. (1 N. Y., 186 ; 9 id., 279, 291; 12 id., 551, 554; 40 id. [3 Keyes], 278; 3 Robt., 275, 282; 2 Abb., 402; 6 Duer, 544, 545, 548; 53 Barb., 467, 470.) As against the indorsers, the judgment seems well supported by the pleadings and proofs.

The recovery against the other defendants, as makers of the note, is not without difficulty. Notes similar to this in form have been before the courts in numerous instances, on the question as to the personal liability of those whose names were subscribed as makers; and the decisions on the question do not seem to be entirely harmonious. But the recent decisions leave little doubt as to the true rule to be applied to this class of cases. It was held in Taft v. Brewster (9 Johns., 334) that a bond, signed by the defendants, u trustees of the Baptist society of the town of Litchfield,” sealed by them respectively, was their personal obligation — that the addition of “ trustees ” to their individual names was a mere descripUo personarum. The question there arose on demurrer. It was remarked by the court that the church had not contracted by its corporate name or seal, and it seems that the demurrer was deemed well taken on another ground. The questions in White v. Skinner (13 Johns., 307) also arose on demurrer. Judgment was given for the plaintiff, on the pleading, on the ground that it did not appear that the defendant, Skinner, who signed his own name, “ for the directors,” and sealed the instrument with his own seal, had authority to bind those for whom he assumed to act. The case of Barker v. The Mechanic Fire Ins. Co. (3 Wend., 94) is more in point. Stress was here laid on the fact that (as it appears from the pleading) the party who signed the note did not contract in the name of the company, nor in their behalf, and Stone v. Wood (7 Cow., 453) is cited in support of the decision. (See Moss v. Livingston, 4 N. Y., 208; also, De Witt v. Walton, 9 id., 571.) Taft v. Brewster (supra) is commented on in Hicks v. Hinde (9 Barb., 528), and Hills v. Bannister (8 Cow., 32) is there referred to as overruled. Now, in the case at bar, the promise in the body of the note is personal: “ We promise to pay f and, if the rule stated in most of the cases above cited be rigorously adhered to, the personal liability of the makers would seem to be established. But there are many other cases, some of more recent date, to be considered. And in some of them, also, it would be observed that a personal promise, as “ We promise,” “I promise,” “ We agree,” etc., was not deemed of absolutely controlling significance. The case of Brockway v. Allen (17 Wend., 40) is in point, as an authority to discharge the makers of the note from personal liability. It was there held that, where individuals subscribe their proper names to a promissory note, prima facie they are personally liable, although they add a description of the character in which the note is given, but that such presumption of liability may be rebutted, by proof that the note was in fact given by the makers as the agents of a corporation, for the debt of the corporation, due to the payee, and that they were duly authorized to make such note as the agents of the corporation ; and that such facts may be pleaded in bar of an action against the makers personally, averring knowledge on the part of the payee. This decision has been recognized and followed in numerous more recent cases. (9 Barb., 528; 11 N. Y., 200; 19 id., 619, 630, 631; 27 id., 546, 558, 559; 9 Paige, 188; 22 Wend., 324; 38 Barb., 313; 52 id., 116.) These cases are not all direct authorities on the point under discussion, but bear more or less on the question. The note in suit, prima facie, created a personal obligation against the makers; but, being signed with descriptive words attached to their names, and bearing, also, the corporate seal, the case was open to proof of the facts under which it was given, with a view to determine whether it was intended by the parties that they should assume personal liability. In Lee v. Methodist Episcopal Church (52 Barb., 121) the learned judge, in delivering the opinion of the court, says: “ There are a number of cases in which prima facie, and without extraneous circumstances to show it to be otherwise, an obligation in such form, without other explanation is held to be an individual obligation, and the addition to be mere matter of description, but such, prima facie evidence is not conclusive ; nor does that circumstance or presumption exclude evidence to overcome it.” So Judge Paige, in Hicks v. Hinde (9 Barb., 528-531), in speaking of instruments signed by individuals with words of description of some character attaching to them, remarks as follows : “ There are some cases of ambiguities, where the words are equivocal, but which admit of precise and definite application, by resorting to the circumstances under which the instrument was made. In such cases parol evidence is admissible, of the circumstances attending the transaction.” In this case the drawer of the draft added to his signature “ agent.” He was allowed to give proof of the character mentioned by the learned judge, which was held to discharge him from personal liability. In Haight v. Sahler (30 Barb., 218), the defendants signed the contract, adding to their name “ building committee.” On proof of the circumstances attending the giving of the contract, they were held not personably liable. So in Bowne v. Douglass (38 Barb., 312), a note was made payable to the defendant “assignee,” and was indorsed by him adding “ assignee.” On proof of facts attending the giving of the note and its indorsement he was held not personably liable. In Pumpelly v. Phelps (40 N. Y., 59) it is remarked, that the fact that the party described himself as trustee, without stating for whom, does not relieve him from personal liability, or change the effect of his engagement. But in that case the party gave no information for whom he was trustee, to the person with whom he contracted, nor did he show any authority to contract as trustee. There was no intention here to overrule the cases above cited. This subject received careful consideration in Angelí and Ames on Corporations, and the rule was laid down, that, in cases like this now before the court, if from the contract itself, or from this coupled with the conduct of the parties thereto, it appeared that credit was given, not to the agent, but to the corporation, and that it was the intent of the parties that the corporation should be bound, whatever might be the particular form of the contract, the corporation was alone liable upon it.

Now, in the case at bar there was added to the names of the makers of the note a description of their character: “ Trustees of St. John’s Ev. Lutheran Church, Hudson N. Y.,” and the note was stamped with the corporate seal of the corporation. The case was therefore within the authorities, admitting of proof of the circumstances under which it was given, with a view to determine the defendants’ liability. In addition to what appeared on the face of the papel-, it was proved that the corporation was indebted to the payee, that the latter made claim therefor to the corporation ; that it was recognized and allowed by the trustees, its only officers; he requested a note, and the note in suit was given him, signed by the trustees with the addition to their names, “ trustees of St. John’s Ev. Lutheran Church, Hudson N. Y.,” and sealed with the corporate seal. There was nothing in all this showing that the parties intended that the makers should become personally liable, nothing showing that they intended to assume the church debt as individuals; on the contrary, it is manifest that they did not so intend, and this to the knowledge of the payee. The trustees, too, had the right to allow the claim to the payee, as they did do, in fact. The giving of the note was but obtaining time for payment. The trustees were, in fact and in law, the corporation, as regarded its legitimate contracts. The language of Judge Cowen, in Brockway v. Allen (supra), may well be adopted: “We have seen that these trustees were themselves the corporation in contemplation of the statute, and the very act of giving the note operated as a corporate assent to the appointment of the defendants as agents, or which is the same thing, a declaration that they acted as such. The debt was due from the society for materials furnished by the plaintiff, on the request of the corporation. The plaintiff, therefore, must have known that the debt was a corporate one.” The proof which discharged the defendant from personal liability, in Bowne v. Douglass (supra), was no stronger than in the case at bar. The defendant was assignee of an insolvent estate; the note was received in compromise of a note belonging to that estate; it was made payable to him with the addition “assignee,” and was indorsed by him with the addition “assignee.” It was held that the indorsement did not create a personal obligation. So in the case at bar, it was sufficiently well proved that no personal liability was intended by the parties to the note, and that none existed against the defendants as makers.

The plaintiffs here stand in no' better position on this question than would the payee, inasmuch as the note, on its face, disclosed the fact that this defense here interposed existed, or that the proof to establish it was admissible. We are of the opinion that the judgment was erroneously directed against the defendants as makers of the note. As above stated, however, -it was well directed against the indorsers. It is a case where a separate judgment might be given ; so it may be affirmed as to some of the defendants and reversed as to others. The appeal is joint by all. The judgment must therefore be affirmed as against the indorsers Bachman, Hallenbeck and Hull, and reversed as to the makers Sheldon, Allison, Pultz and Sharts; but without costs of the appeal to any or either of the parties. Hallenbeck, although not liable as maker, is held as indorser. The order can be readily framed to meet the case. There must be a new trial ordered, as to the defendants other than the indorsers, and the costs as to them, except the costs of the appeal, must, as is usual on granting new trials, abide the event of the suit.

Learned, P. J., and Boardman, J., concurred.

Judgment affirmed as to indorsers, and new trial granted as to makers (not indorsing), no costs of appeal; costs as to makers not indorsing to abide event.


author: Boardman, J.:

text:
    WILLIAM HERRINGTON, Respondent, v. EBENEZER ROBERTSON, Executor, etc., of MARTHA BECKER, Deceased, and JAMES O. BECKER, Appellants.

      Practice — pleading—relief granted under — Advance to child — recovery hack.

    In an action against a devisee, and also against another, an executor under the will, asking a judgment against the executor; and that a lien be decreed to exist upon the lands devised for the amount thereof, and that said lands be sold, a judgment for the recovery of a definite sum of money may be rendered against the executor alone.
    "Where $4,000 is advanced to a married daughter by her father to purchase real estate, under an agreement that the same is to be repaid in case of her death during her confinement — which agreement is assented to by her husband — and the daughter dies, although she has made a will leaving such real estate and all her personal property ($500) to her husband, such fact will not prevent the recovery of a judgment by the father against her executor for the $4,000.
    Appeal to the General Term from the verdict of a jury at the Circuit.

      The complaint in this case alleged, in substance, that Martha Becker was the daughter of the plaintiff; that on or about the 21st day of January, 1872, the said Martha intermarried with the defendant James O. Becker. That the plaintiff promised the said Martha and her said husband that, if they purchased a certain farm, he would assign a bond and mortgage to the owner in part payment for said farm, but upon the express condition, agreement and understanding of the said James O. Becker that, if the said Martha should die —r- and especially during her expected confinement — the said $4,000 should be paid back and come back to the said plaintiff. That the said farm was subsequently purchased, and was, on April 1st, 1873, conveyed by one Crandall and wife to said James O. Becker; and said plaintiff thereupon assigned said bond and mortgage to said Crandall. That, afterward, in order the better to carry out the wishes of the said parties, the said defendant Becker conveyed, through a third person, the said farm to the said Martha, his wife. That, afterward, the said Martha, without the knowledge of said plaintiff, made her last will and testament, by which she devised and bequeathed all her real and personal estate to her said husband, his heirs and assigns, forever. That afterward, and on the 9th day of May, 1873, the said Martha died during her confinement, leaving no descendant her surviving, and leaving her said will; and died seized and possessed of said farm, and left no personal property, unless to a very trifling amount, not exceeding the value of $200. That the defendant Robertson is the sole executor of the said last will and testament of said Martha Becker, deceased.
    Wherefore the said plaintiff demands judgment against the said defendant Ebenezer Robertson, as executor, etc., of Martha Becker, deceased, for the sum of $4,000, and interest thereon from April 1st, 1873; and that the same be declared and decreed to be a lien upon the said farm; and that the said farm be decreed to be sold to satisfy said lien and claim under the order and directions of the court, and in the manner to be directed and specified by said court, and for costs of this action ; and for such other and further relief as the court may see fit to grant.
    The assets which came into the hands of the executor did not exceed $500.

      James Gibson, for the appellants.

      S. Thomas, for the respondent.
   Boardman, J.:

Stripped of all extraneous matters, the plaintiff advanced to Martha Becker, deceased, his daughter, the sum of $4,000, upon an agreement, assented to by defendant James O. Becker, that it should be repaid to him in case of the death of the said Martha during her confinement, then near at hand. The sum so advanced was paid toward the purchase of a farm, the title to which was, at first, taken in the name of defendant James O. Becker, the husband of Martha. Afterwards, and by the plaintiff’s request, the title to said farm was conveyed to Martha, subject to a mortgage of $2,000 which her husband had given thereon for the balance of the purchase-money. About a month thereafter, Martha died, leaving no child surviving her, but leaving a will whereby all her property was devised and given to her husband, and Robertson named as executor.

This seems a plain case of a contract between a father and his married daughter, by which the $4,000 was advanced to and for the sole benefit of the daughter. The father does' not want the money to go into the Becker family. After the deed is first made to James O. Becker, plaintiff becomes dissatisfied, and wants his daughter to have the benefit of what he has advanced ; and it is finally arranged that the wife, Martha, shall have the title to the farm in consideration of the advance made to, and for her by her father. It becomes, therefore, her separate estate, and morally, if not equitably, charged with the payment to her father of the $4,000 in case of her death.

The making of the will thereafter does not affect the question under consideration. It is an ordinary contract by Martha, for a good consideration, to pay to her father $4,000 in a certain event, which has happened. I can see no defense to the action. The precise contingency has happened upon which Martha and her husband agreed this money should be repaid. But the husband is now here, by his answer, claiming all of Martha’s property under, her will, and ignoring such contract and her obligation arising therefrom. -

In my opinion, the learned judge was correct in holding that the defendant Robertson, as executor, was indebted to the plaintiff in the sum of $4,000 and interest, and ordering judgment therefor.

The case of Marquat v. Marquat (7 How., 417), sustains the decision in this case in many of its features, more especially as to the nature of the complaint; the relief to which plaintiff is entitled under the same; the position of James O. Becker as co-defendant, and the dismissal of the complaint, as to him, without costs. So far as that case is hostile to the plaintiff in this action, it was reversed in the Court of Appeals. (12 N. Y., 336.)

I think the judgment is correct, and should be affirmed, with, costs against the appellants personally.

Present — Learned, P. J., Bocees and Boabdman, JJ.

Judgment affirmed with costs against appellants personally.


text:
    LORENZO DUBOIS, Respondent, v. GROVE WEBSTER and JAMES O’BRIEN, Appellants. WILLIAM A. NEAL, Respondent, v. JAMES O’BRIEN, Appellant.

      Tax roll — seizure of property of third pa/rty for tax, when invalid — Trespass — Replevin — 2 R. S., 522, § 4— Code, § 207, sub. 4.
    Certain real estate in Kingston was assessed to “Joseph Foster or occupant.” Foster had sold all such real estate about three years before this assessment was made, and had removed from the city and State several months before such assessment was made. One K. was an occupant of a portion of the premises formerly owned by Foster, as a sub-tenant of one D., who leased the whole property of one H., the then owner. Plaintiff’s horse was in the possession of N., and was seized and sold by defendants (treasurer and collector of the city of Kingston) to satisfy said tax.
    Held, that the seizure and sale were without color of process against plaintiff D., as the horse was not in the possession of Foster, or of any occupant of any premises belonging to him.

      Held, also, that when the statute provides that real estate may be assessed to the owner, the name of the owner must- be inserted in the assessment roll, and it is the same with the word “occupant; ” the occupant must be named or else the tax roll gives no information to the collector of whom he may require pay ment. The roll itself should show all the facts necessary to justify the action of the collector. These defects appearing on the face of the roll rendered it invalid, and the defendants liable for trespass.
    The property levied on must be either the property of the person assessed, or the goods must be actually in the possession of such person. It being neither in this case, the plaintiff N. could maintain an action of replevin for the recov" ery of his property. Held, also, that the evidence of the assessor, as to the property intended to be assessed, was not admissible.
    Appeals from judgments for the plaintiffs, in two actions tried together, without a jury, at the Ulster Circuit, in October, 1874, the Neal case being replevin for a black horse; the Dubois case trespass for wrongful taking and conversion of a bay horse.

      S. L. Stebbins, for the appellants.

      A. Sohoonmaker, Jr., for the respondents.
   Boardman, J.:

This was an action of trespass against the defendants, treasurer and collector'of the city of Kingston, for the wrongful taking and conversion of the plaintiff’s horse.

The assessment and levy under which the seizure was made was as follows:

City op Kingston Tax Roll, eor the Year 1872.—Ward No. 8.

No objection was made to the assessment roll except to the portion here set forth. Joseph Foster had sold all the real estate owned by him in the city, in 1869, about three years before this assessment was made, and had removed from the city and State several months before the assessment. One Neal was an occupant of a portion of the premises, formerly owned by Foster, as a sub-tenant of Dingee, who leased the whole property of a Mrs. Halleck, the then owner. Plaintiff’s horse was in Neal’s possession, and was seized and sold by defendant to satisfy said tax. A recovery was had upon the ground that the horse was not in the possession of Joseph Foster, or of any occupant of premises belonging to said Foster, and that the seizure and sale were without color of process against plaintiff.

The question is thus presented whether such an assessment is of any validity against plaintiff. The authorities seem to me quite conclusive that the defendants were not justified, by such an assessment, in the seizure of this property. Their authority must be strictly pursued, according to its terms. The tax is assessed against individuals in respect to their property. (First National Bank of Sandy Hill v. Fancher, 48 N. Y., 524.) Foster was not assessable in the city of Kingston, because he owned no real estate there and was not a resident. If he owned no real estate, there could be no occupant of it under him within the law. By the warrant the collector was directed to collect of the persons named in the tax list. He would be held liable for collecting from others than those assessed. Clark v. Bragdon (87 N. H., 572) is cited as an authority in point, though I am unable to verify it.

But I think the difficulty in the roll and warrant is radical. As we have seen, Foster did not,own the property. As to him, the assessors acted without jurisdiction, he not being a resident of the State or the owner of any taxable property in Kingston. (Mygatt v. Washburn, 15 N. Y., 316; Whitney v. Thomas, 23 id., 281.)

The words, or occupant,” cannot give to the assessment any vitality. The occupant must be named or else the tax roll gives no information to the collector of whom he may require payment. (Platt v. Stewart, 8 Barb., 493; Van Rensselaer v. Cottrell, 7 id., 127; Johnson v. Learn, 80 id., 616.) When the statute provides that real estate may be assessed to the owner, the name of the owner must be inserted in the assessment roll. It is the same with the word occupant. Any other rule would lead to great confusion, uncertainty and injustice. These defects appearing on the face of the roll render it invalid. Under the assessment laws of the State such a defect would be fatal; and there is nothing in the special laws applicable to the city of Kingston to help the defendants.

From this view of the case it is apparent that the learned judge was correct in rejecting the evidence of the assessor, as to the property intended to be assessed.

The roll itself should show all the facts necessary to justify the action of the collector. As this roll was fatally defective in this’ respect, the defendants were properly held liable for the trespass, and the judgment must be affirmed with costs.

The same reasons apply with equal force to the case of Wm. A. Neal v. James O'Brien, argued with the other case upon the same facts. The sole difference consists in the fact that this was an action of replevin. It is claimed by the appellant that this action will not lie. I think, however, the action will lie in that form, where the assessment roll is void as to the person whose property is taken. However valid this warrant may have been as to Foster, we have seen it is utterly void as to plaintiff) who was not assessed and in no respect liable for the tax. It was no more valid as against the plaintiff than it would have been against any third person, in no way interested in or connected with the property.

In such a case it cannot, I think, be justly claimed that the property was taken by virtue of a warrant for the collection of a tax, in pursuance of any statute of this State. (2 R. S., 522, § 4; Code, § 207, sub. 4.) It is not in the possession of the person assessed upon the tax roll, and it does not therefore come within .the provisions of the statute whereby the collector is authorized to take the property by virtue of the warrant. If the property had belonged to Foster or been found in his possession, it may well be that he could not maintain replevin for its taking, because -as to him the warrant was perfect on its face, and the collector was commanded to satisfy the tax out of his property, if not voluntarily paid. But there was no command or authority to satisfy the tax out of Neal’s property, and the taking of Neal’s property was not by virtue of the warrant. This view of the case is confirmed or illustrated in the following cases: Wright v. Briggs (2 Hill, 77); O'Reilly v. Good (18 Abb., 106); Stockwell v. Vietch (15 id., 412; S. C., 38 Barb., 650); N. Y. and Id. R. Railroad v. Lyon (16 id., 651).

In Stockwell v. Vietch (ante), Ingraham, J., says: “ The property levied on must be either the property of the person assessed, or the goods must be actually in the possession of such person.”

It results from these cases tliat the rightful possessor of goods, unlawfully seized under a tax warrant against another, for tbe collection of the tax, may maintain an action for their recovery.

The case of Hudler v. Golden (36 N. Y., 446), was an action of replevin, brought by the person taxed, for the taking of his property. The warrant being regular on its face, the defendant was protected in its execution. The same principle is true of a defendant in an execution, who can only bring replevin when his property is exempt. But a stranger to the execution may bring replevin for any unlawful interference with his property, by the officer, tinder such execution. (See cases cited 1 Wait’s Prac., 722.)

For the reasons given this judgment should also be affirmed with costs.

Present — Boardhan and Bookes, JJ.; Learned, P. J., taking no part.

Judgment affirmed, with costs.