text:
    Charles H. Gross, Resp’t, v. The Pennsylvania, Poughkeepsie & Boston Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    1. Negligence—Contributory.
    Plaintiff was an engineer employed by a single track railroad, whose rules forbade a train from leaving either end without a train staff or a substitute ticket. O n a foggy morning plaintiff received the train staff and started with a train, the tender being in front with a red light instead of a white or headlight. At the same time one of defendants’ engineers obtained permission to flag up from the other end without the train staff for water. Plaintiff discoveri- g the other engine approaching reversed his lever and jumped, receiving serious injuries. The engines stopped within a few feet of each other. Held, that the failure to have a headlight on the tender was not conclusive evidence of negligence contributing to the accident, but at most raised a question for the jury.
    2. Same.
    The court properly left it to the jury to. determine whether the circumstances justified plaintiff in acting as he did. The mere fact that the engines did not collide was insufficient to convict plaintiff of imprudence in jumping from his engine.

      3. Same—Charge.
    The court submitted to the jury the question whether it was within the scope of the authority of defendant's engineer to make application to run his engine up the road for water. Held, no error.
    Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial on the minutes and on all the grounds stated in § 999 of the Code.

      Greene & Bedell, for app’lt; William D. Dickey, for resp’t.
   Dykman, J.

This is an action for the recovery of damages for injuries caused by the negligence of the defendant.

The plaintiff was in the service of the Central New England & Western Railroad Company as an engineer of a freight train running between Maybrook Junction and Campbell Hall, a single track railroad operated under staff rules, which were that no train would be run over the road1 between Maybrook and Campbell Hall without the train staff marked “ Maybrook and Campbell Hall,” or a substitute train staff ticket.

Enginemen of west bound trains could not leave Maybrook station without the train staff or a substitute train staff ticket,- to be furnished to them by the operator at Maybrook.

Enginemen of east bound trains were not to leave Campbell Hall without the train staff or a substitute train staff ticket, to be furnished to them by the operator at Campbell Hall.

Enginemen were not to accept a train staff ticket as a substitute for a train staff for their authority to proceed with their trains unless the operator at the same time showed them the train staff.

Early in the morning of November 7th the train of the plaintiff, consisting of about twenty freight cars, was made up at Maybrook for Campbell Hall, with the tender in front of the engine which was attached to the train to draw it.

The plaintiff drew up the train in front of the Maybrook station, left his engine, and started back for the tram staff, when it was handed to him by the conductor, who procured it from the operator.

The railroad of the defendant runs from Slatington, in Pennsylvania, to Campbell Hall, in New York, and on the same morning of November 7th an engine of that company was at Campbell Hall out of water, and the engineer applied to the telegraph operator there for permission to proceed with his engine to Maybrook Junction for water. The operator, who represented three roads, the defendant’s, the Central New England & Western, and the " New York, Ontario & Western, telegraphed to Hartford, to the office of the Central New England & Western for permission flu the engineer of the defendant to go for water as he desired, and. received permission for the engineer to flag up to Maybrook, which in the night time means to have a man with a light in advance of the engine.

Upon receiving such information the engineer enquired of the operator whether the “switch engine was likely to come down from Maybrook to Campbell Hall. After turning to his instrument and doing some telegraphing, the operator informed the engineer that the switch engine, which was the one operated by the plaintiff, would not be down until six or seven o’clock in the morning.

Thereupon the engineer started towards Maybrook, but when he had proceeded a considerable distance, the red light carried by the flagman in front of the engine became extinguished, and the flagman stepped upon the engine when it came up to him to relight his lamp, the approaching engine of the plaintiff gave the signal for brakes, and the engineer of the defendant reversed his engine.

After the plaintiff received his train staff, he started his train for Campbell Hall without notice or knowledge of the transactions at that place, or of the approach of the defendant’s engine. After proceeding about a mile the engine of the defendant was discovered, and the plaintiff reversed his engine and jumped. The two engines did not collide because both were reversed.

The plaintiff sustained serious injuries, from which he was suffering at the time of the trial. The jury gave him a verdict for $10,000, and the defendant has appealed from the judgment entered thereon and from the order denying a motion for a new trial on the minutes of the court.

At the close of the testimony upon the trial, the defendant moved for a nonsuit on the ground of contributory negligence of the plaintiff, and the specification was that at the time of the accident he was running without either a headlight or a white light in front of his train.

The motion was based on the rules of the plaintiff’s railroad company requiring each train running after sunset, or in an obscure day, to display the headlight in front and two or more red lights in the rear, and when a train is being pushed to display a white light in front of the leading car at night and when the train is obscured by fog.

The plaintiff was running his engine backwards, with its head towards the train, and its tender ahead, with a red light fastened on the tail casting behind the tank, sometimes called the bumper, and as that was not a compliance with the rule of the company it is claimed by the appellant to have been negligence as a matter of law which entitled the defendant to a dismissal of the plaintiff’s complaint.

As the doctrine is finally settled in this state, the failure to perform a duty imposed by statute or by rule may be shown in an action like this, but it is not conclusive evidence of negligence. Knupfle v. Knickerbocker Ice Co., 84 N. Y., 488.

If, therefore, it is to be assumed that the failure to place a head light upon the tender of the plaintiff’s engine had any connection with the accident, yet it raised a question of fact for the consideration of the jury, and not a question of law for the determination of the court.

If any permissible deduction from the facts will make a cause of action, or if there be either inference or fact in doubt, a non-suit will be erroneous, and the jury must draw the inference and find the fact

With the train staff in his possession the plaintiff had the right of way to Campbell Hall, and the right to assume that the track would be free, as it would be so if the rules of the company were observed, and he could not anticipate their violation. No engine-man could leave the station at either end of this road unless he had the train staff in his possession or saw it in the possession of the operator, for the operator could not issue substitute tickets without the permission of the staff.

Without notice of the permission granted to the engineer at Campbell Hall to run to Maybroolc without the staff, the plaintiff started his train with no reason to anticipate danger.

We find no rule forbidding the operation of an engine backwards, and the only charge against the plaintiff is his failure to display a head light or white light on the end of the tender which was the front of the train.

That fact was proper for the consideration of the jury, but as evidence of negligence which contributed to the injury it was very slight, because the object of the rule requiring a light was to prevent collision, and here there was none.

It was not sufficient to prove an act of negligence against the plaintiff, unless it appeared that his injuries were sustained by reason thereof. Chrystal v. T. & B. R. R. Co., 124 N. Y., 519; 36 St. Rep., 699.

The injuries to the plaintiff resulted from the approach of the engine from an opposite direction on the same track.

The trial judge afforded the defendant the full benefit of the testimony by charging that if they found that the plaintiff was proceeding with his engine in violation of the rules of his company, or if in proceeding in disregard of such rules he contributed to the injury, he could not recover.

The charge imposed a severe burden upon the plaintiff and was all the defendant could require.

But the plaintiff was required to justify another portion of his conduct. When the approaching engine was discovered he jumped from his engine and received the injuries of which he complains, and it became necessary for him to satisfy the jury that he was placed in a position of danger so apparent, imminent and serious as to compel him to make a sudden choice in the presence of an apparently great and impending peril between the hazard of a dangerous leap from his engine and a collision between the two engines, and that his conduct was dictated by ordinary prudence and was not the result of unreasonable alarm.

The charge of the judge upon this question left the jury to determine whether the danger was of a character to justify the plaintiff in taking the course he did, and whether his course was such osa person of ordinary prudence placed in the same jeopardy might have pursued.

Neither party requested more specific instruction upon the point and so far as it went it was correct A proper addition would have been that the fact that the two engines did not collide was insufficient to convict the plaintiff of imprudence in making the jump from his engine. He was compelled to act upon the probabilities as they appeared at the time and to make a sudden choice. The engines were only about two hundred feet apart when the plaintiff jumped and he was the last to leave, the conductor and fireman having left before him. When the engines stopped they were within four or five feet of each other.

We think the facts and surrounding circumstances fully justified the jury in finding the plaintiff free from fault

Upon the question of the defendant’s negligence the jury was restricted to the conduct of the engineer of the defendant after he received permission to flag his engine from Campbell Hall to May-brook and the case endured the restriction.

The evidence was sufficient to sustain the finding of negligence in the management of the engine after it left Campbell Hall, and the appellant introduces no objection to the charge on that subject.

Another question remains for examination. The defendant desired the judge to charge that the request of the defendant’s engineer to run his engine from Campbell Hall to May brook for water over the road of the plaintiff’s employer is not the request of the defendant, and unless the jury can find from the evidence that the defendant’s engine was put upon the tracks of the Central New England & Western Railroad at the request, or with the knowledge and consent of the defendant, you cannot find in favor of the plaintiff.

In response to this request the judge left it to the jury to determine whether under the circumstances it was within the scope of the authority of the engineer to make application to run his engine to May brook for water, and the defendant excepted. We think it was entirely competent for the trial judge to charge the jury that the engineer had the power to make the application. The facts were undisputed. The engineer was placed in charge of the engine, and its entire control was vested in him, and it was to be operated by him. Its operation was the end required and all the means essential to the successful accomplishment of that end were authorized.

Water is necessary for the creation of steam, and provision is made for carrying the same in a tank accompanying the engine, and when it becomes diminished or exhausted, it must be replenished or the engine must stop. Therefore, under the circumstances in which the defendant’s engineer was placed, it became necessary for him to obtain water for his engine, and within the principle stated he possessed the power to adopt the most available means for its acquisition.

There is no claim that he could have obtained water at Campbell Hall or at any place nearer or easier than Maybrook.

Whether, therefore, the question be one of law or fact, it was properly solved by the jury, and there is' no error upon that subject requiring a reversal of the judgment.

The exceptions to the charge respecting the negligence of fellow servants presents no error, and we find none in the record.

The judgment and order denying the motion for a new trial should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


source: Caselaw Access Project

author: Dykman, J. Pratt, J.

license: Public Domain

text:
    Joseph Kellow, Jr., Resp’t, v. The Long Island Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Negligence—Damages.
    In an action for personal injuries the negligence was admitted and the only question was one of damages. By a collision of defendant’s trains plaintiff’s wrist was sprained and his right leg injured so that he suffered constant pain, was confined to his room for some tíme and has been unable to attend to his outside business. His witnesses testified that the injury to his leg was irreparable; while those of the defendant testified that it was not permanent. ' Held, that the question was one for the jury, and that a verdict for §5,000 was not so large as to indicate passion or prejudice and should not be interfered with.
    Appeal from judgment in favor of plaintiff, entered upon •verdict, and from order denying motion for a new trial on the minutes.
    Action to recover for injuries sustained by plaintiff in conse•quence of a collision between trains on defendant’s road. Plaintiff testified that he was thrown from the front of the car to the rear end, where he fell on his head and was rendered unconscious; that his wrist was sprained and his leg injured; that he cannot •sleep at night or lay on that side, nor walk without the use of a ■cane, and is in constant pain; that he is obliged to favor his leg, and is unable to attend to his outside work, and that he was confined to his house for seven or eight weeks. The physicians called by him testified that his injury is irreparable. Those called by defendant testified that the injury was not permanent.

      E. B. Hinsdale, for app’lt; George A. Mod (Benj'. W. Downing, --of counsel), for resp’t.
   Dykman, J.

This action is for the recovery of damages for personal injuries sustained by the plaintiff.

Upon the trial the counsel for the defendant admitted the negli.gence and the liability of the defendant, and stated the question to be one of mere damages.

Thereupon the case was submitted to the jury, and the plaintiff •received a verdict for $5,000.

The defendant has appealed from the judgment entered upon the verdict, and from the order denying a motion for a new trial ■on the minutes of the court

We are asked, as we often are, to set aside the verdict as excessive, but it is not so large as to make it plainly beyond compensation.

The witnesses for the plaintiff described his injuries as serious, :and those for the defendant made them less so, and the testimony all went to the j ury, the peculiar tribunal for the determination of •such a fact

It is in the settlement of just such questions, where there is no legal standard, that the jury system finds its greatest usefulness, and appellate courts interfere upon questions of mere damages with great reluctance.

The verdict is not so large as to be evidence of itself of the presence of any influence beyond the testimony, and if the testimony introduced in behalf of the plaintiff commanded the belief of the jury, we cannot say the verdict is excessive.

The exceptions have all received examination, and we find no-error requiring a reversal of the judgment.

The judgment and order denying the motion for a new trial' should be affirmed, with costs.

Pratt, J.

The whole question submitted to the jury was as to the amount of damages, and we are of- opinion that the verdict is-not so large that we are warranted in interfering with it. The jury, no doubt, put faith in the evidence of plaintiff’s witness as-to the extent of the injuries. That was within their province.

There was no error of law committed, and the judgment must be affirmed.


author: Barnard, P. J.

text:
    Rosalie A. Bleakley, Resp’t, v. Timothy J. Sullivan, Impl’d, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Lease—Covenant in favor of lessor.
    A lease of. a brickyard gave the lessees the right to take material from the lessor’s premises, and provided that they should at all times keep on the premises sufficient brick to pay one quarter's rent. Held, that such covenant was valid, and that the lessees could not evade it by mingling such brick with others and mortgaging the same; that the lessor could take out of the confused goods an amount equal to her demand.
    Appeal from judgment in favor of plaintiff, entered on decision of the court. r
    Action to restrain defendant and others from removing certain brick from a brickyard.

      Cyrus W. Horton (Calvin Frost and Franlclin Couch, of counsel), for app’lt; David W. Travis, for resp’t.
   Barnard, P. J.

The plaintiff executed a lease to McGuire Griswold of a brickyard - at Yerplank’s Point in Westchester county. Lessees took in another party and formed a corporation under the name of McGuire & Co., for the manufacture and sale-of brick. The lease granted the right to enter upon the plaintiff’s property and take the material for the manufacture of the brick. The lease provided that at all times on and after the first quarter’s rent became due the lessees should have and keep upon the yard good hard brick enough to pay one quarter’s rent. In case of default in payment of rent the lessor was authorized to take the brick and sell the same and discharge - the rent due with expense of sale.

There is rent due and the lessees have mortgaged to Sullivan, one of defendants, all the brick in the yard. The action is brought to compel the execution of the covenants in the lease so far as respects brick sufficient to pay the undue rent.1 The lease-was not a chattel mortgage. It did not convey property with a defeasance and it operated on no specific property. The landlord .never parted with the title and her claim rests upon her personal fight thereon.

She owned the yard and the materials with which the Brick was made. She gave the right to the brickmakers to take her ■property and make it into brick, but no sale could be made below -an amount sufficient to pay her rent The lessees never had a right to sell and could not sell to Sullivan without observing this covenant. A mortgagor can give no title greater than he has. The lessor was always in possession of the brick reserved; this .possession followed her title to the land and to the product of the land so far as such product was reserved for her own safety until the covenant of payment was fulfilled. It was the fault of the lessees if this reserved amount of brick was mixed with other brick, and when a confusion of goods is thus made the lessee gets no benefit

The landlord can take out of the confused goods an amount equal to his demand. The agreement was good in law, .was beneficial to the tenants and they could not evade it in the manner shown by the case.

The judgment should be affirmed, with costs.

■ Pratt, J., concurs; Dykman, J., not sitting.


author: Ingraham, J. Van Brunt, P. J. Daniels, J.

text:
    In the Matter of the Petition of Mary E. Field et al., Resp’ts, v. Leo C. Dessar, Purchaser, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    1. Constitutional law—Laws 1890, chap. 276—Infants’ real estate.
    Chapter 276 of the Laws of 1890, a special act authorizing a sale of the contingent interests of certain infants and of persons not in being in certain premises, is constitutional.
    2. Same—Adults.
    Adults who, under the provisions of the act, join or acquiesce in the proceedings, are concluded thereby.
    Appeal from order directing the purchaser to complete, a purchase of real estate on a sale made by the referee in pursuance of an order at special term of this court in this proceeding.

      Joseph B. Beilly, for app’lt; Henry H. Man and Chas. A. Jaclcson, for resp’ts.
   Ingraham, J.

By the deed executed by John M. Bradhurst, ■certain real estate was conveyed to the petitioner, Mary Elizabeth Field, for life, with remainder over to her lawful issue, and to the children of such lawful issue as should have died, as tenants in common, with a contingent remainder over, in case there should be no lawful descendants of the petitioner surviving her, to the heirs .at law of said John M. Bradhurst

The petitioner, Elizabeth Bradhurst Brancacio, is the only child of the petitioner, Mary Elizabeth Field, and there are no descendants of any deceased child living.

The petitioner, Mary Elizabeth Field, has an estate for life in •the property mentioned; the petitioner, Elizabeth Bradhurst Brancacio, has a vested remainder thereunder, and the infant children of said Elizabeth Bradhurst Brancacio, and the heirs at law of John M. Bradhurst, have a contingent remainder therein.

By chapter 276 of the Laws of 1890, the supreme court was authorized to entertain a petition for the sale of the premises in question and to appoint a referee to sell the same, and § 5 of the •said act provided that the title of any purchaser at any sale thereby authorized shall be valid in' fee simple as against all persons not in being at the time of the sale who shall at any time have or claim an interest in such property, and against all individuals, under the age of twenty-one years duly represented by guardian _ ad litem in the proceedings thereby authorized and against all persons who shall join or acquiesce in such proceedings.

The act contains provision for giving notice to all parties interested in the real estate and for the appointment of guardian ad' litem of those who are infants.

Under the provisions of this act the petition of Mary Elizabeth Field, the life tenant, and Elizabeth Bradhurst Brancacio, in whom was vested the remainder, praying that the property be sold, was presented to the court All of the adults who were heirs at law of John M. Bradhurst appeared in the proceeding and all of the-infants who had any interest in this property were brought before-the court and duly represented by their guardians ad litem.

Upon the return of the order to show cause why the prayer of the petition should not be granted all- parties appeared and the order recited such appearances and that there was no opposition to the application, and thereupon an order of reference was granted to take proof of the facts as required by the statute.

Proceedings were had before the referee who reported in favor of a sale of the premises and that report was duly confirmed, all of the parties interested appearing either by their attorney or by guardian ad litem and joining in the motion to confirm such referee’s-report and ordering a sale of the premises in question.

In pursuance of the order the property was sold by the referee, the appellant purchasing a portion thereof, and he refused to take title, specifying several objections to the validity of the title which would be acquired under the referee’s deed.

The first and most serious question presented is as to the constitutionality of the act of the legislature under which this proceeding was instituted.

In the case of Brevoort v. Grace, 58 N. Y., 250, the question as to the power of the legislature to direct the sale of real estate vested in infants was before the court of appeals, and the limitation of the power of the legislature was determined.

It was there held that the legislature may by special act authorize the sale of lands of those not capable of acting for themselves, and also the contingent right of those not in esse, but the legislature had no power by special act to authorize the sale of the interest of parties who have attained their majority and are competent to act for themselves in any real estate and convert the same into personalty and provide for the investment and management, of the proceeds without their consent.

It was also held that in a proceeding for such sale any adult interested in the property would be bound by a sale under the provisions of such a statute and his title would pass under the deed of the referee when he united in the petition for such sale, and his consent was therefore essential to proceedings under which the sale was made.

Applying the principle here established, it is clear I think that the act is constitutional and valid. It provides for a sale of the interests of the infants who have a contingent remainder in the property and also for the interests of persons not in esse. It also provides that the conveyance by the referee shall pass the title of all persons who shall join or acquiesce in the proceedings for the sale.

The act does not \attempt to dispose of the interests of any adult person except ijhose who join in the proceedings or acquiesce therein. I

The next question/ is whether the proceeding has been had in conformity with the provisions of the act and whether all of the adult persons interested in the property have acquiesced in the proceeding.

The record shows such acquiescence. All of the adult persons who have any interest in the property have regularly appeared in the proceedings by attorney and served notice of such appearance upon the petitioner. They have also appeared in open court, made no opposition to the first motion, and expressly joined in the motion for the sale of the property, and on the motion to compel the purchaser to complete his purchase they again appeared in open court by their attorney and joined with the petitioner in the motion.

Such an appearance is certainly sufficient to give the court-jurisdiction over them, and their joining in the motion for the sale of the property by the referee and in this motion to compel the purchaser to complete was an acquiescence in such proceedings.

The other question, as to the regularity of the order to show cause and the service upon the infants, is very satisfactorily disposed of by the opinion of Mr. Justice Barrett in the court below. We have nothing to add to what he said upon that point.

We think the order therefore should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J.

I do not see how there can be any question about the constitutionality of the legislation in question. The-case of Leggett v. Hunter, 19 N. Y., 445, settled that question over thirty years ago. And that decision has never been infringed upon. Many titles depend upon the principles then announced and they should not be considered doubtful now. I therefore-concur.

Daniels, J.

The power of the legislature to provide by appropriate enactment for the sale of the interests of infants in real estate, seems to have become reasonably well settled. Leggett v. Hunter, 19 N. Y., 445; Brevoort v. Grace, 53 id., 245. And it will include the interests contingently provided for persons not in. being. Bat such an act cannot take the contingent interest of unborn persons, and donate it to others who are in being and who by the failure of the contingency may become the absolute owners of the property. The living persons may all die before the expiration of this life estate, and others may come into being who under the deed may be the owners of the proceeds of the sales made of this property. And that possible right should be pi-otected by such a construction of the act as will require the proceeds to be invested for the benefit of the unborn contingent owners, until the contingency shall be ended by the decease of the life tenant It could not have been the intention of the law to leave these remote rights unprovided for. In fact, that would exceed the legislative power. So far the rights of persons not in being are required to be observed and maintained. Brevoort v. Brevoort, 70 N. Y., 136; Monarque v. Monarque, 80 id., 320. And the act may be so construed as to intend that shall be done, ■otherwise it seems incapable of being sustained. That construction will require a modification of this order, directing the investment of so much of the proceeds of the sales as will provide this protection. And subject to that modification only, this order should be affirmed, without costs.

Order affirmed, with ten dollars costs and disbursements.


author: Van Brunt, P. J. Barrett, J.

text:
    Frank B. Genin, App’lt, v. Samuel K. Schwenk, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    1. Abbest—Complaint.
    In order to authorize the granting of an order of arrest on the ground of wrongful conversion of personal property received by defendant as a factor or agent in a fiduciary capacity, the claim to recover because of the fiduciary relation must be distinctly stated in the complaint, and not merely result from inference. (Babbett, J., dissents.)
    3. Same.
    The complaint alleged that plaintiff gave to defendant a note to be discounted for the benefit of the former; that defendant exchanged it for other notes which he procured the plaintiff to endorse; that he parted with the same for his own use and benefit, and has since retained said notes, or renewals thereof, or the proceeds realized from the discount thereof, except the sum of $901 which was paid to plaintiff, and has failed and neglected to deliver said notes, or the proceeds thereof, to plaintiff, although frequently demanded. Held, that the action could not be maintained on the ground of a conversion of the notes without a tender of the $901 received by plaintiff. (Babbett, J., dissents.)
    :3. Same.
    A complaint in the alternative form, like the one in question, is insufficient to support a provisional remedy.
    Appeal from order vacating order of arrest.

      D. B. Anthony, for app’lt; 8. Keeler, for resp’t
   Van Brunt, P. J.

An order of arrest having been granted in this action upon the ground of wrongful conversion of personal property and damages for the misapplication thereof, the same having been received as a factor or agent in a fiduciary capacity, & motion was made to vacate the said order upon the complaint, affidavit and papers upon which the same was granted. The ground apparently upon which said motion was founded was that the complaint did not explicitly aver that the defendant was sought to be charged as having received the money in a fiduciary capacity.

It has already been held by this court in the case of Hillis v.. Bleckert, 53 Hun, 499; 25 St. Rep., 553, and Bartlett v. Sutorious, 29 id., 60, that a statement of facts and circumstances which might justify the legal conclusion of money received in a fiduciary capacity does not comply with the statutes, inasmuch as it requires such an allegation to be made in the complaint, and declares that the plaintiff cannot recover unless he proves the same on the trial..

In other words, it is the intention of the Code that the plaintiff,, in order to exercise the right of arrest, shall state distinctly that he seeks to charge the defendant because of the fiduciary relation., and because of that only, and it. is not sufficient that from the facts stated in the complaint the fiduciary relation may reasonably be inferred. The defendant is entitled to know when suit is brought against him whether the plaintiff seeks to charge him because of the fiduciary relation, or simply to recover as for a debt. In the one case he might be called upon to defend; in the other he might have no defense.

If this is not so, then the plaintiff may declare in a manner from which either the -fiduciary relation might be reasonably inferred, or that he seeks to recover simply for the debt, and the defendant would be unable to ascertain which claim the plaintiff will make until the cause came to trial, and thus be put to the expense of appearing and preparing for trial, and, when the case came on for trial, he being prepared to rebut the inference of a fiduciary relation, the plaintiff might say “I do not intend to recover because of such relation.”

The amendment of the Code of 1886 intended to make the-fiduciary relationship an issuable fact to be tried by a jury, and in those cases one of the essential facts to be established, because it says where such allegation is made the plaintiff cannot recover unless he proves the same upon the trial and a judgment for the defendant is not a bar to a new action to recover the money or chattel.

How it is clear from this language that the claim to recover because of the fiduciary relation must be distinctly stated, and not merely result from inference; and that the complaint can bear but one construction so that no recovery can be had upon it unless the fiduciary relation is established.

But in the case at bar there is another- objection which is fatal to the maintenance of the order of arrest. The complaint alleges, that the plaintiff being desirous of securing for his use the sum of $2,850 less bank discount thereon, made and executed-a stock note for the amount, which he delivered to the defendant, he representing that he could secure the discount of the note and would turn over .the proceeds thereof to the plaintiff; that a few days thereafter the defendant brought to the plaintiff two promissory notes of one Holly, in the aggregate the same amount as the note made by the plaintiff, and represented to the plaintiff that he had obtained said notes of Holly in exchange for the notes of the plaintiff and that he would secure and obtain the discount of Holly’s notes, whereupon the plaintiff endorsed the notes and delivered them, to the defendant for the purpose of having them, discounted.

The complaint then alleges : That, as is herein alleged upon information and belief, shortly after said 6th day of June the defendant did discount said notes, or parted with their possession for his own use and benefit, and without the consent of this plaintiff, and has since retained, and still retains, said notes or others •of like amount in the aggregate, made by the same maker as renewals thereof, or the proceeds realized by said-defendant from the discount of said notes, and has converted the amount of said notes less the bank discount upon the same to his own use and benefit, excepting only the sum of $901, which was paid to this plaintiff by said defendant between the 11th day of J une, 1890, .and the 30th day of January, 1891, which said sum of $901 was paid by the defendant to this plaintiff as a pretended loan or advance, and upon the representation that the said defendant had not yet been able to discount the said Holly notes.”

The complaint then alleges: “ That plaintiff has duly and frequently demanded of the defendant the delivery to him of said Holly notes, or the renewal notes given in the place thereof, or the proceeds realized upon the discount of said notes or renewal notes; but the defendant has failed and neglected, and still fails .and neglects, to deliver said notes, or the proceeds thereof, to this ■plaintiff, and still retains them for his own use and benefit, to the damage of this plaintiff,” etc.

It is clear that the plaintiff had no right to demand the notes until he paid him the $901 received by him. Therefore, no action would lie for the conversion of the notes themsélves; and it is impossible to tell from the allegations in this complaint whether the action is brought to recover the proceeds received by the defendant upon the discount of the notés, or for the conversion of the notes themselves, because the allegations are absolutely inconsistent with each other, alleging in one clause that he had parted with the notes, and in the next that he has them in his possession.

A complaint in this form cannot support any provisional remedy. If the plaintiff claims to recover upon the ground of the •conversion of the notes themselves, because of the refusal to deliver upon demand, the action cannot be maintained, because there is no allegation of the tender of the $901 received, for the payment of which the defendant had the right to hold the notes.

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

Daniels, J., concurs.

Barrett, J.

I dissent from the proposition that it was necessary to characterize the defendant’s relation to the plaintiff' in the formal words of the Code. The complaint clearly showed such relation, and, upon the facts stated, the notes, or their proceeds, were fraudulently misapplied by the defendant while acting in a strictly fiduciary capacity. It is not a case of reasonable inference on that head, but of absolute certainty. It was not a case of a business agency, but of a single and special transaction where the defendant was to do just one thing for the plaintiff, and where, in doing that one thing, he necessarily acted in a fiduciary capacity.

I dissent, also, from the proposition that it was necessary to repay the §901 before the plaintiff had a right to demand the Holly notes. It is alleged that the payment of this sum was really on account of the notes although the pretence of a loan or advance was put forward. If the defendant had the plaintiff’s money in his hands and turned over part of it, the plaintiff had a perfect right to sue for the balance. He surely cannot be required to return his own money, which was part of the sum fraudulently converted, as a pre-requisite to suing for the balance. But I concur in the result for the reason that the complaint is improperly in the alternative, and that it is impossible as it reads to frame such a distinct issue as is contemplated by subd. 2 of § 519 of the Code. The plaintiff cannot state that the defendant parted with the notes for his own benefit, and, in the same sentence, aver that the defendant still retains the notes. Still less can he allege, in an alternative sequence, that the defendant yet retains the notes or renewals thereof or the proceeds realized from the discount of the notes.

Under this subdivision of § 519, the defendant can only be arrested where the action is brought to recover for money received in a fiduciary capacity, or to recover property, or damages, for the conversion or misapplication of property, by some person in such fiduciary capacity. And it must be alleged in the complaint that the money was received or the property embezzled or fraudulently misapplied by such person in a fiduciary capacity. The issue to be thus tendered must be clear and precise. Here it is 'impossible to tell whether the plaintiff is suing for the conversion of the original Holly notes or for the conversion of the renewals or for the proceeds 'of the original notes or for the proceeds of the renewals. We cannot say, therefore, whether the action is for money received in a fiduciary capacity or for property fraudulently misapplied. Considering the provision that the plaintiff cannot recover upon the trial unless he proves the allegation of his complaint on this head, it is perfectly evident that an order of arrest should only be granted in such a case where a single cause of action embracing some one ground specified in the section is clearly and definitely stated.

The order should therefore be affirmed, with costs.


author: Van Brunt, P. J.

text:
    John S. Ellis, Trustee, Resp’t, v. The Lyceum et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    Former adjudication—Mortgage given by corporation.
    An action, was brought in behalf of the defendant corporation against the present plaintiff, as trustee, and others to determine the validity of a mortgage given by it and to require bondholders to accept a proportion of their face value, in which it was determined that the mortgage was valid and binding for the full amount purporting to be secured by the bonds. Held, that such determination was conclusive between the parties, and that the validity of the mortgage could not be attacked in an action for its foreclosure.
    Appeal from judgment of foreclosure and sale.

      J. H. Bird, for app'lt; II Hendrickson, for resp’t.
   Van Brunt, P. J.

This action was brought by the plaintiff, as trustee of and for the holders of certain bonds issued by The Lyceum, to foreclose a mortgage given by the said defendant, The Lyceum. The defendant was a corporation incorporated in January, 1884, under the laws of the state of New York, and the object of its incorporation was the erection of a building to contain a public hall or theatre.

The total amount of the capital stock of the incorporation was fixed at $36,000, divided into 360 shares of $100 each; but of said capital stock only $24,000 had ever been issued by the corporation up to the 30th of January, 1885. At this time the said corporation were the holders of certain leasehold property, upon which it caused to be erected a building at the expense of some $50,000.

In January, 1885, it was resolved that whereas the building of the company was worth in actual value more than $36,000, the $12,000 of capital stock remaining in the treasury of the company should be issued to the then stockholders in rateable proportion to the stock then held by them. All of such stockholders accepted and retained such stock without objection. It was also determined at or about this time, the corporation having incurred an. indebtedness of $20,000 for work and materials in the erection of the building, to issue bonds secured by a mortgage upon its property of $24,000 to this plaintiff as trustee in order to pay the liabilities of the company and to complete the building; and the plaintiff was appointed a committee to carry out the resolution. And it was further resolved that each stockholder should have the option of taking a proportion of such $24,000 issue of bonds equal to his holding in stock at twenty-five per cent discount, and in the event of the declination of such stockholder to take such proportion of bonds on the terms stated, then his right of option should cease and determine and such bonds should be issued in payment of the obligations of the company or be sold at not more than twenty-five per cent discount Consent to the execution of the mortgage was signed by stockholders folding 165 shares of the 240 which had been issued: they, however, signing as stockholders for the proportionate part of the $12,000 which had been' issued as above stated. The mortgage was thereupon executed and the bonds issued, some of the stockholders taking the bonds at the twenty-five per cent discount, others refusing to take the same, and other bonds being given to the contractors at par. The management of the corporation having changed in 1887 an action was brought in the superior court on behalf of the Lyceum against the present plaintiff as trustee and others, the complaint in which action set up the facts above mentioned and demanded judgment that the bonds which were issued to the stockholders at twenty-five per cent discount should be declared binding and obligatory upon said corporation for seventy-five per . cent only of their face value, and that the holders of such bonds should be ordered to tender the same and the coupons remaining thereon to the said •corporation and upon receiving payment of seventy-five per cent of the face thereof should deliver up said bonds and coupons to be cancelled, and that the mortgage to Ellis as trustee be decreed to be a lien against the leasehold, franchises and property of the corporation for $19,500 only, and that said defendants be enjoined from taking any steps to enforce said bonds, &c.

The defendant (the plaintiff in this action) and his co-defendants answered, denying the claims of the plaintiff, and asserting the validity of the bonds and mortgage to the full amount.

These issues were tried, and the court found that the issue and sale of the bonds of the plaintiff corporation for seventy-five per cent, of their face value to the defendants was ratified by the stockholders of the plaintiff and was valid and binding upon the plaintiff for the full amount purporting to be secured by said bonds according to their tenor, and that the issue and division of the $12,000 among the stockholders on February 10, 1885, was ratified by the stockholders and could not be questioned by the plaintiff, and gave judgment that the complaint be dismissed on the merits as to all the defendants in the action.

Subsequently this action to foreclose the mortgage in question was commenced, default having been made in payment of some of the coupons attached to the bonds, and the foregoing facts appeared upon the trial, the defendants having set up in answer the same facts contained in the complaint in the action in the superior court.

Upon the trial of the issues thus raised the court held that the adjudication of the superior court was binding upon the parties and gave a judgment of foreclosure and sale, from which judgment this appeal is taken.

We can see no escape from the conclusion that the judgment in the superior court was fatal to any claim which the defendant might make as to the invalidity of the mortgage sued upon. The same facts appeared before the superior court and although different relief was asked for, yet the mortgage was held to be valid in that court, and the plaintiff in that action was denied all relief. This established at the invitation of the corporation the validity of the mortgage which it now seeks to attack.

As to the adjudication in reference to the issue of stock, it does not appear that that was necessarily involved in that litigation and it is possible that it may not have been res adjudicata as to all the questions which arose out of such issue. But it is clear that this mortgage having been determined in that action to be valid, it cannot now be attacked, but the judgment of the superior court is conclusive proof of its validity.

The judgment must therefore be affirmed, with costs.

Ingraham and O’Brien, JJ., concur.


author: Barrett, J.

text:
    Henry Moriarty, Resp’t, v. William Zepp, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    Negligence—Master and servant.
    In an action for personal injuries, the plaintiff testified that he alighted, from a street car, looked about him, and was immediately run into and knocked down by a horse and wagon belonging to defendant, which were being driven at great speed, and he was corroborated by a disinterested witness. Defendant’s driver testified that he was driving very slow; that his horse was old and that plaintiff jumped into him. Held, that the evidence preponderated in plaintiff’s favor, and that a judgment against the defendant would not be disturbed.
    Appeal from a judgment in favor of the plaintiff entered upon a verdict rendered at circuit.

      Fdward B. La Fetra, for resp’t; Sutherland Tenney, for app’lt
   Barrett, J.

This is an ordinary action for damages occasioned to the plaintiff by the negligence of defendant’s servant.

The plaintiff was returning from his work on the morning of the 21st of September, 1889, when, on alighting from a Second avenue car, he was run into by a horse and wagon owned by the defendant and driven by the latter's servant The testimony was preponderating in the plaintiff’s favor, and clearly established the facts, first, that the defendant’s driver was guilty of negligence, and, second, that the plaintiff was entirely free from negligence. The horse and wagon was driven at great speed and, although the plaintiff was looking about him, he was knocked down and injured before he could see them. The plaintiff’s testimony to this effect was corroborated by a disinterested witness, and it is denied only by the defendant’s driver, who tells us the improbable story that he was driving “ very slow,” that his horse was twenty-three years old, and that the plaintiff got off the Second avenue car “ suddenly ” while it was in motion and actually “ jumped into ” his aged horse.

The charge was entirely fair and accurate. No exception was taken to it nor was any exception of any moment taken during the trial. The complaint, it is true, was ungrammatical, but what was meant is plain enough, and when the learned judge permitted it to be amended to conform to the proof, as he had a right to do, we may assume that the proof corrected the bad grammar.

The appeal is frivolous, and the judgment should be affirmed, with costs.

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


author: Daniels, J.

text:
    Terence McGuire, App’lt, v. The Broadway & Seventh Avenue Railroad Co., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    1. False imprisonment—Evidence.
    In an action for false imprisonment against a railroad company for causing plaintiff’s arrest for making a disturbance in a car, evidence of the officers who made the arrest that the other passengers expressed approval of it is competent to disprove plaintiff’s testimony that he was making no disturbance and that he heard no complaint from the other passengers.
    3. Same—Absence oe witness.
    Evidence of defendant’s search and" inability to find the driver of the car, who was no longer in its employ, is admissible and proper to avoid the imputation that he was designedly net produced as a witness upon the trial.
    Appeal from, a judgment entered upon the verdict of the jury, .and from an order denying a motion for a new trial.

      Wales F. Severance, for app’lt; Root & Clarice, for resp’t.
   Daniels, J.

The plaintiff was arrested in the evening of the 29th of May, 1886, on one of the cars of the defendant for disorderly conduct, and taken to the station house. He was brought before the magistrate on the following morning, who discharged "him, suggesting that he had been punished enough. And for that .arrest and imprisonment this action was brought.

The evidence given to prove his misconduct was obtained from the two police officers who made his arrest. And it tended to establish the existence of that fact at the time immediately preceding his arrest. This he denied in his own evidence as a witness, rendering the inquiry one of fact to be determined by the jury whether he was chargeable with this misconduct or not. And as they have found a verdict against him, they must have been impressed with the conviction that he had been guilty of this misconduct. Upon that subject the evidence presented the point in such a form as to render the verdict of the jury conclusive.

The officers who made the arrest were permitted to state, over the objection and exception of the plaintiff, that the passengers in the car at the time of his arrest expressed their approval of it, stating that his conduct had been annoying and disorderly. And this exception would be clearly well taken if it had not been for the circumstance that, during the examination of the plaintiff as a witness, he was interrogated upon this subject. He had answered, at the instance of his own counsel, that he was making no disturbance when the policeman was called. Then the question was put to.hmi) “Did any of the passengers make complaint at all?” And his answer was: “ Hot as I heard.” And he further added that there were passengers in the car. This- evidence, so far as it might be entitled to be credited, tended to prove the fact that the passengers had made no complaint, and to secure to the plaintiff the benefit of their omission to complain as a fact in the case. And when the defendant produced its evidence, it was competent for it to disprove what was in this manner stated by the plaintiff. And to show as a fact, if that could be done, that the passengers did complain of the plaintiff at the time referred to in his own answers. For that reason he is not in a condition legally to object to the testimony given by the officers concerning the expressed approval of the passengers in the plaintiff’s arrest.

The driver of the car, which was a one-horse vehicle, was not produced as a witness on the trial. And it was to excuse the absence of this witness that evidence was given by the defendant of the inability to find the driver, who was no longer in the employment of the defendant. And the witness who was called upon that subject testified to the search and inquiry made by him, which had proved to be fruitless, for the discovery and production of the driver. This evidence was objected to as incompetent and immaterial, and an exception to its allowance was taken by the plaintiff. But the evidence was manifestly proper to avoid the imputation, which might have been made with some force against the defendant if it had not been taken, that the driver was designedly not produced as a witness upon the trial.

As the evidence sufficiently supported the defense to maintain the verdict which the jury rendered, and there was no exception taken upon the trial which can properly be maintained, the result is that the judgment and order should be affirmed, with costs.

Yah Brunt, P. J., concurs.


text:
    Francis W. Jencks, App’lt, v. Edward Kearney et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    Specific Performance—Laches.
    At the time for closing a contract for the sale of land the plaintiff requested a postponement on the ground that there was a person in possession of the premises, which was refused, but an offer made to put him in possession on completion of the contract. Nothing further was done for four years and until the land was sold to another person. Held, that the delay was too great for plaintiff to insist on specific performance of the contract.
    Appeal from judgment of special term dismissing complaint.

      John H. V. Arnold, for app’lt; Chas. F. MacLean, for resp’ts.
   Van Brunt, P. J.

This action was brought in Januáry, 1890,. to enforce specific performance of a contract made between the plaintiff and the defendant Kearney for the sale of certain premises in the city of New York, which contract was to be closed at the office.of one Bailey at the Oriental Bank building, corner of Canal street and the Bowery, on the 26th of September, 1885, at 12 o’clock noon, when and where simultaneously with the delivery of the deed a purchase money mortgage of $15,000 was to be-delivered and $8,500 in cash to be paid.

Upon the trial of the case the plaintiff testified that a few days before the time of the closing of the contract he saw the premises-in question being used as a vegetable garden of some sort; that he attended at the office of Mr. Bailey at the time fixed in the-contract and stated to Bailey that he had found a party in possession of the premises, but what rights the said person had in and to the premises he had been unable to learn, and requested a postponement of the time of closing the contract for a few days. The attorney was unwilling to do so because of the instructions he had received from his client. The plaintiff ■ stated that he was unwilling to take title with another party in possession. The attorney’s answer was that if he would pay for the property they would put him in possession afterwards. The matter was left there and no further conversation was had about the property.

The plaintiff was asked, amongst other things, as to the conversation he had had with this party he found in possession, which was ruled out by the court as immaterial, and the plaintiff duly excepted.

The plaintiff did nothing in respect to the property until after it had been conveyed by the defendant Kearney to the defendant King, when this action was brought in 1890 for the specific performance of the contract made in 1885, the conveyance to King being claimed not to have been bona fide.

The court dismissed the complaint, and from the judgment thereupon entered this appeal is taken.

In the conclusion arrived at by the learned court who presided at the trial of this action we do not think any error was committed. The plaintiff undoubtedly had a right, finding some person apparently in possession, to a reasonable time to ascertain the rights of this party and whether he was holding adversely to the defendant Kearney, his proposed grantor. But after such reasonable time had elapsed for the purpose of ascertaining these facts, it became necessary for the plaintiff, in order to put the defendants at fault (if there was in reality any adverse possession, or possession inconsistent with the right of the defendant Kearney to put the plaintiff in possession), to tender performance of the contract on his part upon condition that he be put in possession of the property. But as the record shows, upon the mere statement that he saw somebody upon the premises as to whose right he had no knowledge or information, he refused to complete and did nothing further until more than four years afterwards, when he brought this suit, having learned that the defendant had conveyed the property.

We do not understand that by the recording of a contract for the sale of real estate a perpetual Us pendens can be created. Even if time was not of the essence of the contract, certainly four years was too long to allow it to remain without ever offering to perform.

It does not appear that there was any tender whatever made to perform on the part of the plaintiff on the day in which he had the conversation with Bailey. On the contrary the request was for adjournment, and not a tender or offer to perform upon the part of the plaintiff.

Under all the circumstances, therefore, we are of opinion that too long a time elapsed for the plaintiff now to insist that the contract should be specifically performed.

Without passing upon any of the other questions involved, we think the judgment should be affirmed, with costs.

Barrett and Andrews, JJ., concur.


text:
    Gaetano Ainis, Resp’t, v. Marshall Ayres, Assignee, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    Sale—Stoppage m tbaxsitu.
    The right of stoppage in transitu is not lost by the vendor’s receipt of acceptances given by the. vendee’s agent, nor by the delivery of the bills of lading, so long as such bills of lading have not come into the possession of third parties.

      Appeal by the defendant from a judgment in favor of the plaintiff, entered upon the decision of a justice of the court at. special term.

      Michael H. Cardozo, for app’lt; Robert L. Harrison, for resp’t.
   Barrett, J.

The question here is, whether the right of stoppage in transitu was lost by the plaintiff’s receipt of acceptances, given by the vendee’s agent. The facts are simple and undisputed. In July and August, 1890, the plaintiff, who is a merchant at Messina, in Sicily, sold (in two lots of two hundred tons, each) four hundred tons of brimstone to the firm of Sawyer, Wallace & Co., of this city, at agreed prices. The terms of sale-were embodied in a letter from Sawyer, Wallace & Co. to the= plaintiff, which reads as follows :

“ Concerning the terms under which we purchase brimstone we beg to say that we open credit in re-imbursernent of purchases with. Messrs. Fred. Hath & Co., London, Credit Lyonnais, London branch, our house, Mr. L. W. Sawyer, London, and finally if the re-imbursement should be on Paris, with Messrs. Marcuard Krausss & Co., the Credit Lyonnais of that city, instructing them to honor your drafts at 90d sight, documents attached.”

The brimstone was duly shipped to Hew York and the plaintiff drew his drafts upon Sawyer, of London, the person referred to in the above letter as “ our house, Mr. L. W. Sawyer, London,” for the agreed prices. These drafts were forwarded to Sawyer, in London (together with the bills of lading) and were duly accepted by him. Sawyer was the agent and legal representative in London of Sawyer, Wallace & Co. He was not a banker, but he made collections in large amounts on the other side for, and remitted such collections to, that house. The credit which heáfforded his principals was based partly upon such collections and partly upon moneys deposited by them with him. At the time-of his acceptance of the drafts in question, he was in funds due or belonging to Sawyer, Wallace & Co. to the amount of many thousands of pounds. Upon the receipt of the documents, Sawyer sent the bills of lading to his principals in Hew York and charged them in his agency account with the amount of the drafts. Before-the drafts matured and before the arrival of the goods in Hew York, Sawyer, Wallace & Co. failed and made a general assignment to the defendant. Upon the arrival of the goods in Hew York both parties claimed them, the defendant as the assignee of Sawyer, Wallace & Co., and the plaintiff by virtue of his claim to stop them in transitu. The goods were sold amicably and the proceeds deposited in a trust company to abide the result of this, litigation. Sawyer’s drafts have since been dishonored. The learned judge at special term gave the plaintiff judgment, holding that the right of stoppage in transitu was not lost by the-acceptance of these drafts.

We may premise by saying that if these acceptances defeated the plaintiff’s right of stoppage in transitu, it was certainly not because of the rule, misapplied by the appellant, that such right, is lost where bills of lading have been endorsed by the vendee to a. bona fide transferee for a valuable consideration (as laid down in Becker v. Hallgarten, 86 N.Y., 167, and all the earlier cases), but solely because the plaintiff’s acceptance of Sawyer’s draft was an absolute payment for the goods. We may further premise that if the latter contention should be sustained, as matter of fact, then the vendees were wholly discharged from all liability and the plaintiff has not. only no case as to the goods, but no claim against the assigned, estate. The defendant would thus have us presume that, in accepting Sawyer’s draft, the plaintiff intended to discharge the vendees, to abandon his lien upon the goods and to rely solely upon the credit of the vendee’s agent. This would be a violent presumption, especially in view of the fact that Sawyer is spolten of in the letter above quoted as “ our house; ” that is, our, Sawyer, Wallace & Co.’s, London house; in other words, ourselves. And that presumption would be as unreasonable here as that referred to in Descadillas v. Harris, 8 Grreenl., 298 (hereafter quoted). It is perfectly well settled that the vendor’s right of stoppage in transitu is not lost by his having received the acceptance of the vendee, even though he may have negotiated the bills so that they are outstanding in third hands unmatured. Benjamin on Sales, 4th American ed., § 835. Thus, in Feise v. Wray, 3 East, 93, the bankrupt’s acceptances were treated as part payment so far as something might be realized on them from his estate. To that extent only it was said to reduce the vendor’s equitable lien. This case was referred to in Edwards v. Brewer, 2 Mees. & Wels., 375, Parke, B., saying:

“ It is settled in Feise v. Wray that by an acceptance of bills the vendor’s right to stop in transitu is not taken away.” In Miles v. Gorton, 2 Cr. & Mees, 504, the rule was extended to a case where the vendor had not only accepted the vendee’s bill, but had negotiated it. The English rule has been generally followed in this country. Thus, in Clapp v. Sohmer, 55 Iowa, 273, the vendor had accepted the vendee’s note. It was held that the vendor was not concluded, the court saying that a “ promissory note cannot be regarded as payment unless it has been expressly received as such.” The case of Newhall v. Vargas, 13 Maine (Shipley, vol. 1), 103, goes still further and is entirely analogous to the case at bar. There the master of the vessel upon which the goods were shipped was the agent of the vendee. He drew bills on the vendee payable to the vendor for the amount due on the purchase. It was held that the acceptance of these bills by the vendor did not defeat his right as against the vendee. “ The master,” says Chief Justice Weston, “in drawing the bills on the owner was acting on account of the latter. * * "* It was the usual mode of doing business of this sort. And although by the form of the bills the master may have made himself personally liable, there is no reason ■ to suppose that his security was relied upon by Vargas (the vendor) or that by accepting it he waived other remedies (citing Descadillas v. Harris, supra). The master was not acting for himself. He was the mere agent of the owner.”

In the case there cited (Descadillas v. Harris) it was held that the presumption of payment in receiving a negotiable note “ is liable to be rebutted by proof of facts or circumstances inconsistent with it,” and the court, in reviewing the facts upon which a claim somewhat analogous to the present was made, aptly inquired :

“Is it probable,; or rather is it to be presumed, that they (the plaintiffs) intended to discharge the most responsible security and rely solely upon the most irresponsible, to decline the hypothecation, absolve the owner from personal liability and trust wholly to the solvency of the master?”

Bell v. Moss, 5 Wharton, 203, is still nearer in point to the present case. There the vendor received drafts on third persons. It is true that these drafts were not accepted by the third persons, but the liability of the third persons was fully discussed, and the rule laid down that such acceptances were naturally, and in the absence of an express agreement to the contrary, nothing more than collateral security for the primary debtor’s obligation. “ Here,” said Chief Justice Gibson, “the consignees were the vendees and primary debtors, and what did they pledge as a guaranty ? The acceptances of De Lizardi & Co.; and no principle is surer than that a creditor may press all his securities at the same time.” This learned judge also stated that the giving of the buyer’s own note or bill, though it opez-ates as an extension of the credit, extinguishes not the original contz’act, nor does payment in the bills of a third person, zohich is not absolute satisfaction unless it were declared so by the terms of the bargain. He summed up this branch of the case with these suggestive remarks: “ It would indeed startle the mercantile community to say that where the consignor has collateral means of payment, uncertain as it must be in its results, he shall not press a lien growing incidentally out of' the consignee’s direct liability.”

That the acceptance of Sawyer was a mere collateral security for the primary obligation of the vendees is apparent from all the circumstances of this case. There is not a suggestion in the correspondence or documents that the unsecured acceptance of this agent was to be taken as a substitute, for the primary obligation of his principals, secui’ed as that was by the vendor’s lien. Everything in fact points the other way. Not only is Sawyer spoken of as the vendee’s London house, but the arrangement with him and others is spoken of as a “ credit.” This is a term perfectly well understood in commercial circles. It implies security for the meeting of his obligations by the holder of the credit, and it is not intended ordinarily as a substitute for those obligations. “ A credit with a banker,” said Chief Justice Gibson in the case last cited, “ is not payment, but a means of payment more or less secure according to the solidity of the depositary; and the greater or less certainty of the security cannot affect the question of its character; it is but a security still.”

Here, however, Sawyer was not even a banker, but a merchant representing the vendees and accepting for them and as their agent, though not specifying the agency in terms upon the face of tlze drafts. The distinction between the facts of this case and those under consideration in Gibson v. Tobey, 46 N. Y., 637; Hall v. Stevens, 116 id., 201; 26 St. Rep., 614, and Whitbeck v. Van Ness, 11 Johns., 410, is so wide as to call for but a passing comment. These were cases of executed sales, and the notes or drafts of third persons were taken in payment for the goods sold and delivered and were so taken at the time of delivery. The distinction between such cases and the eases of executory contracts, where the-goods have not yet reached the vendee and the right of stoppage in transitu is asserted, is pointed out by Spencer, J., in Whitbeck v. Van Ness, supra. That learned judge comments upon Owenson v. Morse, 7 Term R., 66, and says that that case will be found on examination to turn “on the right to stop goods in transitu. Owenson purchased from Morse some plate and paid for it in the notes of a third person. . Morse retained the plate to have Owen-son’s arms engraved at Morse’s expense. In the interim the maker of the notes failed; the court holding that the bargain was not so perfected but that the seller might stop the goods in transitu.” That learned judge also referred to Roget v. Merritt, 2 Caines, 120, where, he says: “We adopted the same principle that in an executory contract, the consideration having failed, the vendor had a right to withhold a delivery of the goods.”

The delivery of the bills of lading to Sawyer did not affect this question. The general rule is not disputed, that the delivery of the indicia of title is equivalent to the delivery of the goods. “But,” as Mr. Benjamin says at § 813 (we are still quoting from the fourth American edition of his work on sales), “ though the vendor’s lien is thus divested by reason of the complete delivery of the indicia of property, he may, if the goods have not yet reached the actual possession of the buyer, and if no third person has acquired rights by obtaining a transfer of the bill of lading from the buyer, intercept the goods in the event of the buyer’s insolvency before payment, by the exercise of the right of stoppage in transitu. These principles in relation to the effect of a bill of lading were first conclusively established in the great leading case of Lickbarrow v. Mason, on the authority of which very numerous decisions have since been made, and will be found collected in Smith’s Leading Cases. On this mode of delivery the law is free from doubt.”

In the case at bar there was no transfer of the bills of lading from the buyers and no third person ever acquired any right of transfer from them. The transfer to Sawyer was simply a transfer to his principals, the buyers, and from that point on there was no further transfer. The question of payment as between Sawyer, Wallace & Co. and their agent is entirely immaterial. That is simply a question of debit and credit on the agency books. Such cases, therefore, as Crocker v. Whitney, 71 N. Y., 161, and Briggs v. The Central National Bank, 89 id., 182, have no application to the underlying question here, and it is idle to talk of payment for the brimstone having been made by Sawyer, Wallace & Co. to Sawyer before the execution of their assignment. That firm received the bills of lading, but never paid the plaintiffs and failed before the actual arrival of the goods.

We think it entirely clear that thus the plaintiff’s equitable right to stoppage in transitu, a right so favored in the law, Northey v. Field, 2 Esp., 613, was not lost and that he is entitled to recover upon two distinct grounds : First, that the acceptances of Sawyer were in substance the acceptances of the vendees. Second, that even if such acceptances were treated as the acceptances of a third person, they were not, as matter of fact, taken in absolute payment for the goods.

The judgment should therefore -be affirmed, with costs.

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


author: Daniels, J. Barrett, J.

text:
    The Madison Square Bank, Resp't, v. Warham N. Pierce, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    Bills and notes—Part payment by endorser.
    The holder of commercial paper may collect the entire amount against the maker, although a part payment has been made by the endorser. In such case the plaintiff will hold the excess as a trustee for the benefit of the endorser.
    Appeal from a judgment recovered at the circuit on trial before the court.

      David Keane, for app’lt; J. Delahunty, for resp’t
   Daniels, J.

The judgment which has been recovered is for the full amount of a promissory note made by the defendant to the order of himself for the sum of $1,000, payable at the Madison Square Bank in six months from the 23d day of January, 1889. This note was endorsed by him and transferred to the L. M. Bates Company, which company before the maturity of the nóte, and for value, endorsed and delivered it to the plaintiff. After that the L. M. Bates Company became insolvent and a receiver of its property and effects was appointed and duly qualified, and took possession of all the assets of the company. The note, together with other claims, were presented to the receiver, and under orders made by the court he paid to the plaintiff 73J per cent of the amount due upon the note. And that payment was relied upon by the defendant as a defense to the extent to which it had been made. But this defense was overruled, and the amount of the note was held to be recoverable by the plaintiff.

Whether this was a correct application of the law to the facts of this case upon principle, certainly admits of some doubt. For by the payments which the receiver made, a right of action vested in him to recover from the maker of the note this sum of 73¿ per cent. It was a right of action entirely independent of the plaintiff, and capable of being- enforced by him against the defendant. And this view was adopted and followed by early cases decided by the English courts. Bacon v. Searles, 1 Henry Black., 88; Hemming v. Brook, 1 Carr. & Marshman, 57; Pierson v. Dunlop, 2 Cowp., 571, and Wolwyn v. St. Quintin, 1 Bos. & Pul., 652, which however is not a decisive authority in support of this positian. These cases, and the others bearing upon the same point, were fully considered in Jones v. Broadhurst, 9 Manning, G. & S., 173. And the conclusion was there maintained, in view of all the preceding decisions, that a defense of this nature was not available to the maker of a note or the acceptor of a bill of exchange. But that, notwithstanding the payment, the holder of the paper was still entitled to proceed against the principal debtor and recover the full amount for which the obligation had been created. And as a result of that recovery the plaintiff would hold the excess, beyond that due upon the paper, as a trustee for the benefit of the endorser by whom the payment had been made. The principle is somewhat arbitrary, it is true, but it was considered to be the fair result of the authorities applicable to this subject. And it was not disaffirmed in Thornton v. Maynard, L. R., 10 C. P., 695. The circumstances in that case were peculiar, and the court there held the plea to be good as an equitable defense on account of the equities which had vested in the defendant In Goodwin v. Cremer, 16 Eng. Law & Eq., 90, the same principle is applied. But in that case the question was disposed of more as a matter of pleading than otherwise. And it was followed in Kemp v. Balls, 28 Eng. Law & Eq., 498, where, however, the suggestion was made in the course of the discussion that the amount paid might be proved by way of mitigation of damages. And this it was also held might have been proved in Wattles v. Laird, 9 Johns., 326. But that was in favor of a surety in an action upon a bond given on the arrest of the debtor, and for that reason it has no special application to this controversy. And Agra, etc., Bank v. Leighton, L. R., 2 Exch., 56, so far as it extends, is in the same direction. And a quite similar view of the law was expressed in President, etc., v. Hazard, 13 Johns., 352.

The existence of this legal principle followed at the trial has also been assumed in 2 Parsons on Notes, etc., 218, where the author has collected the cases bearing upon it in a note to the ■statement of it. And a like conclusion of the law has been stated in 2 Daniel’s Neg. Inst., § 1237. And the authority, although not without conflict, appears now to be sufficient to entitle the holder of commercial paper to collect the entire amount against the principal debtor although a part payment may have previously been made by an endorser to the holder. And this right is not inconsistent with § 449 of the Code of Civil Procedure, requiring every action to be prosecuted in the name of the real party in interest. Eor the exception to that requirement has been made that a trustee of an express trust may sue without joining the person for whose benefit the action is prosecuted. And a person with whom or in whose name a contract is made for the benefit of another is a trustee of an express trust within the meaning of this section, and that appears to include this obligation. For the contract of the defendant held by, and under the circumstances made with the plaintiff, was not only for its own benefit, but also for the benefit'of the endorser by whose endorsement the paper was transferred to the plaintiff'. The judgment in the action, therefore, appears to be sustained by the law, and it should be affirmed.

Van Brunt, P. J., concurs.

Barrett, J.

I concur in the conclusion arrived at by Mr, Justice Daniels. The precise question to be here determined depends for its solution in the first instance upon the effect of the defendant’s answer. Under this answer the equities as between the plaintiff and the endorsers are not in the case. We have simply to decide, therefore, whether a part of the note has been paid to the plaintiff by the defendant or on his behalf. Nothing-of the kind is set up in the answer. The defendant says that the plaintiff has received seventy-three and one-fourth per cent of the-note and that there is only due it on account of said note twenty-six and three-fourths per cent thereof. But-he does not aver that this per centage was received from him or from some one who-paid it on his account.

The averment, therefore, is not a plea of payment pro tanto, and it is irrelevant to say that the plaintiff has received a part of the note without adding that it was so received from the defendant or from some one who made the payment on his behalf. The answer was demurrable and no other judgment could have been rendered upon such a plea than that which was rendered. But even if the matter set forth in the agreed statement of facts had been pleaded, the defendant’s case would not have been helped. For it thereby appears that the payments made by the receiver of the-endorsers were made, not by or on behalf of the defendant, but on account of their independent contract. The payments were so made not because the maker was liable therefor, but because the endorsers were themselves liable therefor. Such payments-were not upon account of the maker’s primary obligation, nor can the maker take advantage of such payments to relieve himself from his distinct contract obligation to the holder. It is true that-the endorsers upon payment under their contract have a right of action over against the maker. And it may be asked, how then can the holder have a right of action against the maker for the-full amount of the note ? And how can the holder under any circumstances be allowed to recover from any one more than the amount of his note ? There need be no inconvenience in these particulars, and the logic of the legal situation may be preserved without subjecting the makers to payment twice or permitting the holder to receive more than his due or frustrating the endorser’s action over. In the 'first place, payment to the holder by the maker fully extinguishes the latter’s obligation. In the nature-of things this must be so, and that too although the endorser may have previously paid-a part of the amount due.

If the endorser has paid such part and is unwilling to permit, the holder to collect from the maker the part so paid as well as. the remainder, he has his direct action against the maker and the latter can interplead the bolder and bring the whole amount of the-note into court for equitable division. Whether the maker be ued by the holder or by the endorser, he can interplead the other party and bring the whole amount of the note into court, thus at one and the same time satisfying the holder for the whole amount due on the note and the endorser for the amount paid thereon by him. The right of the holder to sue for the whole amount of the note is not affected by the rule of the Code which requires all actions' to be brought in the name of the real party in interest. The holder is not a trustee for the endorser when, after part payment by the latter, he proceeds against the maker for the whole amount of the note. It is true that after he has collected the whole amount, the law implies a trust obligation to re-pay to the endorser the amount of his previous payment. In that sense, he holds part of the money collected as trustee for the endorser. But as between the holder, as plaintiff in the action, and the maker as defendant, the action is not brought by a trustee but by the owner of the paper. And as such owner he is the real party in interest.

Any other view of this relation overlooks the true nature of the original contract and the obligations which the maker and endorser respectively assume. Besides, it has been repeatedly held that.he who holds the legal title to the instrument is the real party in interest and that the defendant has no right to show the equities under which the transfer was made or otherwise to prove that the recovery would be for the benefit of some one other than the plaintiff in whom the legal title is vested. I agree therefore with Baron Cresswell in Jones v. Broadhurst, cited by Mr. Justice Daniels, that “ the only question in which he (the defendant) has any interest is whether the party seeking to enforce payment by him is the legal owner of the bill and whether recovery by and payment to such party will enure as a satisfaction and absolute discharge of his liability upon the bill." Baron Cresswell demonstrates the latter proposition with convincing logic, and certainly the defendant here, who has not paid the endorsers nor offered to pay them nor even pleaded liability to pay them, cannot escape his contract obligation upon a mere suggestion aliunde his answer that perhaps the endorsers may prefer to hold him directly rather than look to the plaintiff as their trustee.

Thus the defendant, without offering to pay any one, insists that he should be relieved from a part of his contract obligation. His case does not differ from that of the defendant in Jones v. Bradhurst, supra, and his situation is well described in the opinion in that case as follows: The plaintiffs stand upon the record the legal owners of the bill and the defendant as having failed to perform his contract without any legal excuse for the breach. The defendant was the party primarily liable and by his plea he sets up, by way of discharge, satisfaction by one notin privity with him in relation to such satisfaction, and which we think did not enure to his discharge.”

I may add to the list of authorities cited by Mr. Justice Daniels Thornton v. Maynard, L. R., 10 C. P., 698, where Lord Coleridge, speaking of Jones v. Bradhurst, said that “the judgment of Cresswell, J., in that case reviews the authorities and finally decides that payment either partially or in full by the drawer to the endorsee does not dis-entitle the endorsee to sue the acceptor for the full amount of the bill.”

He also cites Byles on Bills, 10 Ed., 210, where Sir John Bylessays : “ To an action against the acceptor, payment by the drawer is no plea, but only converts the holder into a trustee for the drawer when the holder afterwards recovers from the acceptor.”

By the payment of this judgment the defendant will have paid the note ana extinguished his entire obligation thereon. And the endorsers will no longer have any right of action over against, him, but will have to look to the plaintiff for the amount already paid on account of their obligation. We must not speculate as-to why the receiver of the endorsers has not already sued the defendant nor why he has suffered the plaintiff to proceed as the-owner of the note for the recovery of the whole amount thereof from the maker. Such speculations would be unprofitable and would only tend to confuse the real question, namely, whether the payment by the endorser under his contract of endorsement is a payment by or on behalf of the maker operating pro tantoto extinguish the maker’s obligation. Upon both principle and authority we think such payment is in extinguishment of the endorser’s liability and of that alone, and that it is not a payment for or on behalf of the maker. We think too that the single payment by the maker to the holder of the entire sum due and payable by his contract enures as a satisfaction and absolute discharge of his liability upon the note.

I agree that the judgment should be affirmed, with costs.