text:
    Louisa Carlson, App’lt, v. Maria L. Winterson, Resp’t.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    Appeal—Restitution.
    Where a judgment is reversed by the common pleas, on appeal from the city court, the latter court has not jurisdiction to grant an order for restitution under § 1323 of the Code.
    Reargument of an appeal from an order of the city court, directing restitution. ’
   Bookstaver, J.

On the first argument of this appeal we re. versed the order of the city court directing restitution, on the grounds (1) that the general term of the city court, not being the reversing court, had no jurisdiction to grant the motion ; and (2) that the exercise of the power was discretionary, and not compulsory, and, a second judgment having been obtained in the interim, the defendant was in no position to appeal to the equitable discretion of the court. A re-argument was ordered, apparently on the authority of Hays v. Nourse and a note to Brown v. Trust Co., no other reason being assigned. It is only necessary, therefore, to examine these cases. All the proceedings in Hays v. Nourse, including an abstract of the briefs of counsel, are fully reported in 25 Abb. N. C. 96. The facts in that case are very nearly identical with the one under consideration. There the plaintiff, having sued for a deposit left with an auctioneer upon a purchase of property, having succeeded in the action, had his judgment affirmed at general term; whereupon the defendant paid over the money, but appealed to the court of appeals. In the court óf appeals the judgment was reversed, and, while a new trial was granted in form, the decision made it apparent that the plaintiff could not recover in any event in that action. Thereupon the defendant moved the special term of this court, it being the court in which the judgment was originally obtained, for a restitution. This motion was opposed on the ground that the application could not be entertained at special term, the plaintiff insisting that it should have been made either to the court of appeals or to the general term of this court. The judge who heard that motion decided that this contention was correct, and denied the motion, with leave to apply to the general term. It is true that in the brief opinion written by him he states that, where a final judgment is reversed on appeal, the appellate court, or the general term of the same court (that is, the court where the action is tried), may compel restitution; and'also that section 1323 recognizes this jurisdiction (that is, the right to order restitution) in the trial court, but confines its exercise to the general term, to which in the first instance the application must be made. This was not necessary to the determination of that motion, and the learned judge making the statement was doubtless led into doing so by reason of the argument of counsel for the plaintiff, who, in effect, admitted that it might be made there; for, when the defendant after the denial of that motion moved the general term for restitution, he in no way raised the question of the power of the general term to grant it ; and it is apparent from the opinion delivered on that motion, 25 Abb. E. G. 98, that the question of right or authority was not raised or considered, and the order was granted. When this order came up for settlement before one of the judges sitting in that general term, he said:

“ The application for restitution ought, as a matter of safety, to have been made to the court of appeals. There is no doubt at all that that court would have ordered restitution, and inserted a direction for restitution in its judgment of reversal. That is, as I conceive, the correct practice, and if it had been pursued in this case an execution against real property could have been issued. * * * Perhaps the true construction of section 1323 is that when a general term of the common pleas reverses a judgment it may adj udge restitution, and that where a judgment is reversed by the court of appeals that court, and no other, may adjudge restitution.”

—And suggested that the defendant, even after these two motions had been made, could apply to the court óf appeals for an amendment of the judgment, so that restitution might be provided for therein. Particular attention thus having been drawn to the provisions of section 1323, the moving party seems to have been convinced by the argument ef the judge last mentioned, for he immediately moved the general term of this court to withdraw all proceedings thereon, and requested it to send the remittitur to the court of appeals; and, this having been done, he thereupon moved that court to have inserted in its remittitur an order for restitution. This motion was granted by the court of appeals, and the remittitur amended by inserting a provision for restitution, exactly in the manner which the appellant herein contends would have been the proper practice in this case. This authority, therefore, instead of being an argument against is strongly in favor of the decision announced upon the first argument of this appeal. Carlson v. Winterson, 7 Misc. Rep. 15; 57 St. Rep. 100. It was not alluded to in that opinion, because it was thought Ami Market Nat. Bank v. Pacific Nat. Bank, 102 N. Y. 464; 2 St. Rep.59, was controlling. Our attention has also been invited to the note to Brown v. Trust Co., 24 Abb. N. C. 160, where the question was as to the party prevailing in the court of appeals after the return of the remittitur. Dr. Abbott has collated the authorities on the power of the court below after an actual determination by the appellate court. While this note is extremely interesting and instructive, it does not so much as mention cases of restitution, but the trend of many of the authorities therein cited is strongly favorable to the view here expressed. Lyon v. Merritt, 6 Paige, 473; Patten v. Stitt, 50 N. Y. 591; Sheridan v. Andrews, 80 N. Y. 648; Griswold v. Haven, 16 Abb. Pr. 413 ; McGregor v. Buell, 3 Abb. Dec. 86; Miller v. Coates, 2 Hun, 668; Tuttle v. Gilmore, 42 N. J. Eq. 369.

Respondent has also called our attention to Wright v. Noslrand, 100 N. Y. 616 ; which was an action brought by the plaintiff as receiver appointed in supplementary proceedings to set aside as fraudulent, as against creditors, a conveyance made by the judgment debtor. He succeeded at special term, but the judgment was reversed by the general term. On appeal to the court of appeals, the order of the general term was reversed, and the judgment affirmed, with costs. The remittitur was sent down, and judgment perfected for costs, which was collected. A motion was subsequently made for reargument. The remittitur was recalled, and a reargument ordered, upon which the judgment was modified in some respects, among others so that no costs were allowed to either -party. Thereupon a motion for restitution was made in the court of appeals, not at the general term, and that court says :

“ This motion for restitution is based upon § 1S23 of the Code. We entertain doubt whether restitution in this ease could properly be awarded under that section, and we will therefore deny the motion.’’

It further says, in substance, that the plaintiff had collected from the defendant a sum of money to which he ivas not entitled, because the judgment as finally authorized had entirely swept away all claim for costs, and that the defendant had undoubtedly the right to recover the money paid in some form; and then says:

“ She could propably recover it by' action, but the superior court upon whose execution the money was paid, and whose officer the plaintiff as receiver is, had undoubted jurisdiction over the whole matter, and can compel repayment of the money either by the plaintiff or his attorney.”

—Which, of course, means by proper proceedings for that purpose, but cannot mean that the general term of the superior court "could award restitution in a case where the court of appeals could not, under § 1323 of the Code, which is the one under which the application was made in this case in the court below. The suggestion as to the power of the superior court in that case was doubtless made because both plaintiff and his attorneys were officers of the court, and therefore under the control and direction of the court. Be that as it may, the case clearly decides that restitution under § 1323 of the Code was not the proper remedy in either qourt; for it follows that, if it were not proper for the court of appeals to grant it, it would be equally improper for the general term of the superior court to do so. The case of Young v. Brush, cited by th,e respondent as being in 18 Abb. Dec. 171, is clearly wrong, because there is no such book. Such a case, however, is reported in 18 Abb. Pr. 171, and in 28 N. Y. 667, but has no reference whatever to the question under consideration. There-" fore, after a careful review of our prior decision and all of the cases cited upon the reargument, as well as a reconsideration of § 1323, we are led to reaffirm the doctrine there expressed, that where a judgment is reversed by this court, on appeal from the city court, the latter court has not jurisdiction to grant an order for restitution under that section. The respondent did not argue the question of discretion upon this reargument; therefore there is no reason for reviewing our decision in that respect. The order appealed from must therefore be reversed with costs.

All concur.


source: Caselaw Access Project

author: Bischoff, J.

license: Public Domain

text:
    John Henry A. Geiler, Resp’t, v. Manhattan Railway Company, App’lt.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    1 Negligence—Contributor/?.
    It is not negligence per se for a passenger to attempt to leave the car ■while in motion, where some direction was given to him by those in charge of the train, or some situation created, which interfered to some extent with his free agency, and was calculated to divert his attention from the danger, and create a confidence that the attempt could be made in safety.

      2. Same—Misconduct of guard.
    His right to recover, in such case, is not affected by the fact that the guard was guilty of a misdemeanor in opening the gate to allow him to alight.
    3. Damages—Negligence.
    In an action for personal injuries, the jury may award, as part of the recovery, damages for future loss of service and future pain and suffering, where such condition is likely to continue.
    Appeal from a judgment, entered on a verdict in favor-of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court.

      Julien T. Davies and Joseph H. Adams, for app’lt; Edward J. McGanney, for resp’t.
   Bischoff, J.

The plaintiff, 66 years of age at the time, was a passenger on the defendant’s elevated railroad train, seated in the rear car, at some distance from the door, and expected to be carried, without change of cars, to 145th street, near his place of employment, as he had been on former occasions. When the train arrived at 135th street station, the guard announced that fact, but did not at once admonish the passengers to leave the cars, or proclaim that the train was to proceed no further. The plaintiff alone, unaware that the train was not to proceed onward, remained in the car, and was thereupon told by the guard to “ Hurry up, change cars.” He started to leave the car, noticed that he had left his lunch box on the seat, retraced his steps, possessed himself .of his lunch box, and again started to leave the car. Having gained the platform of the car, he there met the guard, told the latter that he wished to go to 145th street, and met with the retort, Hurry up, change cars, take another train.” At this time the side gates of the car platform were closed to prevent ingress to and egress from the car; and the train, which was still at the station platform, had just commenced to move away. The plaintiff requested the guard to stop the train so that he might alight. The guard thereupon opened the gate, and, addressed the plaintiff, commanded him to Hurry up, get out, get out," and “Hurry up, jump.” Believing that he could do so with safety, the plaintiff stepped off the car, through the opened gate, upon the station platform, was thrown, and so sustained the injuries complained of.

The foregoing facts appear from the unchallenged testimony of the plaintiff and of his witness, Lynch. That they establish negligence on the part of the defendant’s servant is not disputed, but i c is contended that they equally establish contributory negligence of the plaintiff, as matter of law, and that, therefore, the learned trial judge erred when he submitted the question to the jury against the defendant’s protest. We are of the opinion that under the circumstances in evidence the question of the plaintiff’s contributory negligence was one of fact, and that with the jury’s finding that the plaintiff was not negligent in leaving the car as he did we should not interfere. It was competent for the jury to say that the train had not yet reached a point of speed where an attempt to leave it was fraught with danger obviously certain to re-suit in injury, and that the plaintiff’s natural reliance upon the guard's greater experience in that connection, coupled with the peremptoriness of the latter’s command to “Hurry up, get out,” or “ jump,” and the necessity for instantaneous action, persuaded the plaintiff into compliance, believing that it was safe so to do. Filer v. N. Y. C. Railrad Co., 49 N. Y. 47 ; Lambeth v. Railroad Co., 8 Am, Rep. 508; Railroad Co. v. McCurdy, 12 Am. Rep. 577; Doss v. Railroad Co., 21 Am. Rep. 371; Railroad Co. v. Cantrell, 40 Am. Rep. 105. It is not negligence per se if it appears that “some direction was given to the passenger by those in charge of the train, or some situation created, which interfered to some extent with his free agency, and was calculated to divert his attention from the danger, and create a confidence that the attempt could be made in safety.” Solomon v. Manhattan Railroad Co., 103 N. Y. 437, 442 3 St. Rep. 636. “In such a case, Filer v. N. Y. C. Railroad Co., 49 N. Y. 47, there may be a stress of circumstances, in the passenger being obliged to choose between being carried away from the place where his duties or ties compelled his presence, and of endeavoring to alight, upon the direction or suggestion of the railroad employe.” “ The question, then,” where the speed of the moving train was not such as to render the risk of injury obviously certain, “ might very properly be left to the jury for them to pronounce upon the character of the act.” Hunter v. Cooperstown, etc., Railroad Co., 126 N. Y. 18, 23; 36 St. Rep. 367. And see dissenting opinion of O'Brien, J. For the reasons stated, also, the trial judge properly charged the plaintiff’s 4th, 5th, 7th, 8th, and 9th requests, and the exceptions to the charge in those respects do not present error.

Whether or not “ the defendant gave the plaintiff due opportunity to alight before the guard closed the gates,” whether or not “ the closed gate and train in motion was notice to the plaintiff that the time for leaving the train was passed,” and whether or not “ the fact that the guard closed the gate and set the train in motion was notice to the plaintiff that he had a right to remain on the car until the train should again stop,” were facts to be determined by the jury from all the attending circumstances. Defendant’s requests to charge the affirmative were therefore properly refused. The exceptions to the refusal to charge the defendant’s 5th, 12th, 13th, 14tii and 15th requests, to the effect that “ after the gate was closed and the train was in motion the plaintiff had no right to alight ” ; that the words of the guard did not amount to a coercion ” ; that “ if the plaintiff asked the guard to let him get off he cannot recover”; that “ if the words of the guard were merely to express advice, and not compulsion, they could not excuse the plaintiff” ; and that “ if the plaintiff could have remained on the cars, and the guard only opened the gate to convenience the passenger, and if the guard did not force the plaintiff to get off, the plaintiff cannot recover,” are severally answered and disposed of by what has been said with regard to the question of the plaintiff’s alleged contributory negligence. For the reasons also there stated, the trial judge properly charged that it was the province of the jury to determine whether or not it was, under the circumstances, the act of an ordinarily prudent person for the plaintiff to alight from the car as he did.

The defendant’s sixteenth request was charged. The trial judge properly refused the defendant’s eighth request. That, the guard was guilty of a misdemeanor in opening the gate while the train was in motion (Laws 1881, c. 399), and that the plaintiff was chargeable with knowledge of the fact, did not, in law, preclude his recovery. 2 Thomp. Neg. p. 1003; Whart. Neg. § 330; 4 Am. & Eng. Enc. Law, p. 50, and cases collated in notes 1 and 2.

A further exception was taken to the charge that the jury could-award, as part of the plaintiff’s recovery, damages for future loss of services and future pain and suffering. The charge was proper, Filer v. N. Y. C. Railroad Co., 49 N. Y. 42; Schuler v. Third, Ave. Railroad Co., 1 Misc. Rep. 351; 48 St. Rep. 663, and authorized by the evidence. It appeared from the plaintiff’s testimony that before the accident he had been earning from $15 to $20 per week in his trade, which was that of a painter and paper hanger; that as a result of his injuries one of his legs became somewhat shorter than the other, thus impeding his work and reducing his earning capacity ; and that at. the time of the trial he was still subject to occasional pain and physical anguish. Furthermore, the injured parts of the plaintiff’s person were submitted to the inspection of the j ury at the time of the trial. These parts still bore the effects of the injuries, and it was within the reasonable experience of the jury to say from their inspection whether or not the plaintiff vras likely to be afflicted with continued suffering. The trial judge nowhere charged that the jury could award damages for permanent injuries. Hence, the contention that the charge was without support in the evidence in that respect is without force.

Exceptions to rulings upon the admission and exclusion of evidence are not urged on this appeal. Nothwithstandihg, we have examined the record. Exception was taken to the admission of testimony touching the plaintiff’s involuntary and instinctive exclamation of pain. This testimony, we think, was properly admitted. Schuler v. Railroad Co., 1 Misc. Rep. 351. Considering, however, the plaintiff’s advanced age; that before the accident he did not earn above $20 per week , that he has lost no limb; that his earning capacity has been diminished, not altogether destroyed; that his injuries do not appear to be of a permanent character, or of such a nature as to entail upon him constant pain and.suffering in the future that the case was not one for the recovery of vindictive damages,—and comparing the recovery herein ($7,500) with the awards made in other cases presenting features of greater aggravation, we cannot escape the conclusion that the verdict was excessive, and that $3,500 would have been a sufficient compensation. Accordingly, we direct that the judgment and order appealed from be severally reversed, and a new trial granted, with costs to abide the event, unless the plaintiff shall file his consent in writing that the verdict be reduced to $3,500, in which event the judgment, so reduced, and said order, will be affirmed, without costs of this appeal.

All concur.


author: Bookstaver, J.

text:
    Edward Fox, App’lt, v. Mayor, Aldermen and Commonalty of the City of New York, Resp’t.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    Office and officer—Suspension or discharge.
    The question whether what was designated in a notice to an inspector of masonry in the city of New York as a “ suspension," was in reality a suspension or a discharge, and what the understanding of the parties was at the time, is properly left to the jury to determine, and their determination is conclusive.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Louis O. Van Doren, for app’lt; William H. Clark and James T. Malone, for resp’t.
   Bookstaver, J.

This action was brought by the plaintiff to recover $3,145.78, with interest thereon from the 18th day of December, 1889, for services alleged to have been performed by him as an inspector of masonry on the new aqueduct. From the record it appears that on the 27th of October, 1886, the plaintiff was appointed an inspector of masonry to act under orders of the chief engineer and his assistants on the line of the new aqueduct, and was assigned to duty on the 30th October, 1886. That the aqueduct commissioners on the 21st July, 1886, by a resolution, provided for a committee of construction, consisting of five commissioners, which should be an executive committee of the aqueduct commissioners, with full power of direction and supervision over the work of construction, and over the engineers, officers, and employes engaged therein. On the 23d of November, 1886, that committee passed the following instruction, and rule for inspectors of masonry, brick, and other work in the employ of the commission;

Sec. 5. Inspectors are employed and paid by the month, and their whole time must be devoted to their duties.”

And on the 6th of January, 1888, the aqueduct commissioners adopted a resolution as follows:

“ That on and after January 1, 1888, all inspectors that are employed by the aqueduct commissioners are only to be paid for the time they are on duty on the work.”

Under this employment and these rules the plaintiff performed the work from the 30th of October, 1886, until March 10, 1887, when, by an order of the chief engineer, he was suspended, and his pay stopped. On the 21st of the month last mentioned, plaintiff was reinstated and restored to work, which he continued until the 16th of June, 1887, when the chief engineer again suspended him from duty, and requested him to resign from further employment, and notified him that, in case he failed to do so, his discharge would be recommended to the commissioners. On the 14th of September, in the same year, he was reinstated, and resumed work; but the record shows that he performed no services from March 9th to March 21st, and from June 15th to September 14th, and received no pay for that time. After September he did perform services and received pay until the 3d of February, 1888, when he was required to appear before his division engineer, who thereupon said to him, “I suspend you"; and after this date he was never restored to duty, nor did he do any work as an aqueduct inspector. Meanwhile, and on January 8, 1888, he was notified by the chief engineer that at a meeting of the committee on construction of the aqueduct, held January 4, 1888, the following resolution was adopted, and was promulgated for his instruction and guidance, as well as others:

“ Resolved, that on and after January 1, 1888, all inspectors employed by the aqueduct commissioners are only to be paid for the time they are on duty on the work;. and in case any inspector, after once having been suspended or transferred for inefficiency or improper conduct, should again be complained of by the di vision engineer in charge, said division engineer shall give him his time, and report the name of such inspector for discharge by the commissioners."

When the evidence was all in, the plaintiff moved for the direction of a verdict for the full amount of $3, 387 78, which was denied and an exception taken, and the court left it to the jury to decide whether the plaintiff had been discharged or not, and the jury found a verdict for the plaintiff for $121, being his salary for one month. From the judgment entered on this verdict this appeal is taken.

On behalf of the plaintiff it is strongly urged that Gregory v. Mayor, etc., 113 N. Y. 416; 22 St. Rep. 703 and Emmitt v. City of New York, 128 N. Y. 117; 38 St. Rep. 907, are decisive of this question, and entitle the plaintiff to a direction in his favor for the periods during which he claims he was suspended merely, and not discharged; defendant, on the other hand, insisting that the several suspensions were in effect discharges. But we think there is a clear distinction between the case under consideration and the cases above cited. In Gregory v. Mayor the plaintiff was an excise inspector, who had been apointed to an office which was permanent in its character, at a per annum salary. He was suspended, and not discharged, and the court, in substance, held that while he had the undisputed title to the office he was entitled to the salary. The whole reasoning in that case seems to us to be predicated upon the fact that the plaintiff held title to an office permanent in character, and which was a part of the system of the local government provided for by the charter, and hence it was impossible to suspend a public officer without vacating the office. In the Emmitt Case it was held that there was in fact no such thing as suspending a public officer without discharging him, and that unless the employe is discharged his pay goes on ; and that, while the term of office was at the pleasure of the commissioners, they could not effect, arbitrarily, temporary or indefinite suspension without pay, But in that .case it was further held that it was competent for the commissioners to enter into an agreement with the plaintiff in relation to his salary. In that case, also, the fact was apparent, from the conduct and actions of the plaintiff and defendants, that the relation of employer and employe existed, and had not been interrupted by the suspension. In this case it was expressly left to the jury to determine whether or not what was designated in the notices as a “suspension” was in reality a suspension or a discharge,' and what the understanding of the parties was at the time; and, the jury having determined upon sufficient evidence that the notice was in reality a discharge, it is conclusive upon the plaintiff. But, even if the case last commented on was analogous to the one at bar,—which we think we have now shown is not the fact,—the full force of that decision has been modified by the opinions delivered in Lethbridge v. City of New York, 133 N. Y. 232; 44 St. Rep. 669, and Wardlaw v. City of New York, 137 N. Y. 194; 50 St. Rep. 410. In the first of these cases the court of appeals says:

“Whether this notice [a letter addressed by the commissioners to the plaintiff stating, ‘You are hereby suspended from the position of clerk from this date’] was called a suspenion or a dismissal, is of very little consequence. It operated to terminate the plaintiff’s employment and right to salary from that date.

In the case last cited, where two letters were written at an interval of about two years, the one using the word “suspended” and the other “discharge,” the court says:

“It does not follow that because the commissioner in his first letter used the term “suspended” instead of “discharge,” that he did not intend to terminate the employment as assistant engineer, and to.create a vacancy; * * * nor does it follow that Ward-Jaw did not understand from this communication that his services were no longer required as an assistant engineer. The commissioner had the power to dismiss or discharge, and no particular form of words was necessary in order to accomplish that result. If he intended to and did communicate to the employe the fact that his services in that capacity were no longer required, and this was so understood by both parties, then the discharge was effected as completely as if the word had been used.”

On this point, see also, Kelly v. City of New York, 70 Hun, 208; 54 St. Rep. 99. These decisions fully warranted the learned judge at trial term in submitting the question of the understanding of the parties as to whether the notices operated as a suspension merely, or a discharge, to the juiy for their determination, and also justified him in refusing to grant a new trial or vacate the verdict.

The fact that the jury found a verdict for one month’s salary in favor of the-plaintiff in no way affects this question. They may have found that the first did not operate as a suspension, and gave him his salary for the period when he was merely suspended. The verdict clearly establishes the fact that the last notice was understood, both by the plaintiff and the defendant, as a discharge, and not a suspension. If the jury found their verdict for $121 on any other theory than the one above suggested, the defendant, and not the plaintiff, was injured thereby.

The notices of suspension of March 10, 1887, and June 16, 1887, were properly admitted in evidence over plaintiff’s objection, as bearing directly upon the question as to whether or not the plaintiff was discharged and had had notice thereof.

The exception to the admission of a copy of the resolution of the committee on construction, sent to the plaintiff, was not well taken. The board was created under the provisions of chapter 490, Laws 1883, and one cannot read that act without being struck with its independant features, and the evident design on-the part of the legislature to repose in the aqueduct commissioners-an unlimited and unqualified judgment and discretion in the hiring of employes and the selection of detailed employments to-enable them to carry out the provisions of this act. When dealing with the question of employes, section 40 goes so far as to provide that no person coming with the requisite certificate from the civil service shall be appointed inspector or superintendent, unless his qualifications shall be in addition certified by at least three of the aqueduct commissioners. It cannot be seriously argued that the board created by that act had no power to pass the resolutions and by-laws they did. There is no restriction or limitation upon the board in that respect, and it would necessarily follow that the board had power to adopt reasonable by-laws to govern the business to be conducted; and it seems to us that the by-laws and resolutions passed by the board, and offered in evidence, were eminently reasonable and wholesome. The judgment should therefore be affirmed, with costs.

All concur.


text:
    Samuel E. Dale, App’lt, v. Louisa H. Hepburn, Resp’t.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    Pbincifal and agent—Collecting agency.
    A collection agency, in employing an attorney to collect a claim, acts as principal and not as agent for the owner of the claim, and the owner is not liable to such- attorney for his services.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.

      J.Noble Hayes, for pl’ff; William S. Cogswell, for def’t.
   Bookstaver, J.

This action was brought to recover .the value-of legal services alleged to have been rendered by plaintiff as the attorney for the defendant, on her retainer, in proceedings had in the circuit court of the United States for the Horthern district of Illinois. The answer denies the retainer, and that the plaintiff rendered her any services. At the close of the plaintiff’s case a motion to dismiss was denied, and a similar motion made at the close of the trial was granted, on the ground that no cause of action was made out against the defendant, and this raises the principal question to be considered. From the evidence it appears that. Hubbell & Go. is a collection agency in this city, whose business it is to collect all kinds of claims, as well as notes, drafts, and other negotiable instruments ; that defendant, through her agent,, placed a draft drawn by Lewis E. Parsons on L. F. Hepburn, and paid by her, in their hands for collection, and agreed to pay them certain fees therefor; that thereupon Hubbell & Co. retained plaintiff as their attorney to take proceedings in Chicago to collect the claim for them, and remit proceeds to them after deducting his fees, the amount of which was specified in a circular accompanying the retainer; that plaintiff was acquainted with one of the Hub-bells, and had had previous business transactions with the concern ; that plaintiff had no understanding with Mrs. Hepburn in regard to compensation ; that he had no correspondence with her in regard to the action; that all of plaintiff’s correspondence was with the Hubbells; that he applied to them for compensation for his services; that when he gave a consent for substitution to Mr. Crarrett in September, 1888, he did not then present any claim against the defendant, although he did underwrite the consent as follows : “Without waiving any rights regarding my position heretofore as attorney for the plaintiff in said suit, I consent to the above substitution;” that the first notice defendant had of any claim was when she was served with the summons and complaint in this action in the fall of 1889 ; that the only bill for his services which plaintiff ever sent to any one was sent to Hubbell & Co. It also appears that defendant’s son acted as her agent in all of these transactions, and that whatever he did was done with Hubbell & Co., and that in the course of these dealings he knew that the plaintiff was the attorney of record in the action commenced in the state of Illinois. Under such a state of facts, it is clear that the plaintiff was acting on a retainer from Hubbell & Co., and not from thé defendant, and the question of her liability depends upon whether or not Hubbell & Co. were merely her agents in the transaction, or were themselves principals, and we think there can be no doubt but that they were principals. Under the name of an agency, they were conducting a collecting business on their own account. They would be responsible to the defendant for the collection of the money, not as agent, but as principal. So they are responsible to the plaintiff for any services rendered by him to them. They undertook to collect the note, and not merely to employ agents for the defendant to do so. This has been expressly decided in Hoover v. Gfreenbaum, 61 N. Y. 305, otherwise known as Hoover v. Wise, 91 U. S. 308. After reviewing all of the authorities, the majority of the court say :'

“We are of the opinion that these authorities fix the rule in the class of cases we are now considering, to wit, that of attorneys employed, not by the creditor, but by a collection agent who undertakes the collection of the debt. They establish that such attorney is the agent of the collecting agent, and not of the creditors who employed that agent.”

In Bank of Clark County v. Gilman, 81 Hun, 487; 63 St. Rep. 299, it is said :

“In some other jurisdictions it has been held to be within the implied authority of the collecting agent, when paper is to be collected at some place remote from that of the" business, for such agent to employ a sub-agent in that locality to make collection on account of the owner. But in this state the rule is otherwise, and, in the absence of any undertaking or agreement to the contrary, it is to the effect that the collecting agent is deemed to employ such other .collector on his own account. Thus the collecting agent becomes chargeable to his principal for the conduct of the bank or individual to whom he transmits the paper for collection.”

In this case the evidence is clear that there was no understanding or agreement on the part of the defendant about the employment of the plaintiff for or on her account or as her attorney, but, in our judgment, it is conclusive that he was employed by the Hubbell agency in the course of their business as a collecting agency. We think that if banks into whose care negotiable instruments are placed for collection are regarded as principals, so much the more should a collecting agency, whose sole business it is to collect claims placed in its hands, be so regarded. We are aware that the liability of banks in such case has been much discussed, and that there is a great conflict of authority on the subject. It has been held, on the one hand, that the bank first receiving the paper is answerable for the neglect, omission, or other misconduct of the bank or agent it may employ, following the general rule of law that an agent is liable for the acts of a sub-agent employed by him. This is the doctrine established by the decisions of the supreme court of the United States, of this state, Hew Jersey, Ohio, Indiana, and the courts of England. Exchange Nat. Bank, v. Third Nat. Bank, 112 U. S. 276; Allen v. Merchants' Bank, 22 Wend. 215; Smedes v. Bank of Utica, 20 Johns. 384; Montgomery County Bank v. Albany City Bank, 7 N. Y. 454; Commercial Bank v. Union Bank, 11 N. Y. 203; Ayrault v. Bank, 47 N. 570; Titus v. Bank, 35 N. J. Law, 588; Reeves v. Bank, 8 Ohio St. 465 ; Tyson v. Bank, 6 Blackf. 225; Abbott v. Smith, 4 Ind. 452; Kent v. Bank, 13 Blatchf. 237, Fed. Cas. No. 7,714; Van Wart v. Woolley, 3 Barn. & C. 439; Mackersy v. Ramsay, 9 Clark & F. 818. In 112 U. S. 276, Judge Blatchford said:

“The bank is not merely appointed an attorney authorized to select other agents to collect the paper. Its undertaking is to do the thing, and not merely to procure it to be done. In such case the bank is held to agree to answer for any default in the performance of its contract, and whether the paper is to be collected in the place where the bank is situated, or at a distance, the contract is to use the proper means to collect the money, and the bank, by employing sub-agents to perform a part of what it has contracted to do, becomes responsible to its customer.”

In 35 H. J. Law, 588, Chancellor Zabriskie said:

“A dealer, who deposits a draft on a distant env in a bank in his own town, has no choice of their agent or correspondent. It is the business of the bank to provide proper agents or correspondents for this service, when they adopt it, as most banks do, as a part of their regular business. If they have no such correspondent they should refuse to take paper for collection, and then the holder could choose whether he would leave it for transmission. He would then be led to inquire about the agent to whom it would be transmittéd. The English and Hew York rule is much better adapted to the convenient dispatch of business. It is no hardship .on the bank. It can always look to its correspondent bank, to which transmission is made, for indemnification from its negligence.”

But it is held, on the other hand, that the liability of a bank, under such circumstances, extends merely to the selection of a suitable and competent agent at the place of payment, and to the transmission of the proper instructions, and that the corresponding bank is the agent of the holder, and that the transmitting bank is not liable for the default of its correspondent, when selected with due care. This view has been adopted by the courts of Massachusetts, Connecticut, Pennsylvania, Illinois, Louisiana, and Missouri. Mr. Morse in his work on Banks, approves of the latter doctrine (Morse, Banks, 2d Ed., 414) ; 'while Mr. Daniel, in his work on negotiable Instruments, maintains the doctrine established by the courts of this state (1 Daniel Meg. Inst., 3d Ed., § 342). Whatever the views of the courts of other states may be, the liability of the bank receiving the paper to the owner is too well established in this state to need further discussion.

It therefore follows that the learned judge who tried this case properly dismissed the complaint, and the judgment entered thereon should be affirmed, with costs.

All concur.


author: Giegerich, J.

text:
    Joseph J. Kittel, App’lt, v. Henry Stueve, Resp’t.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    1. Contempt—Judgment fob specific pebfobmance.
    A direction, in the final judgment for specific performance, that the purchaser pay the purchase money, cannot be enforced by a contempt proceeding.
    2. Same.
    Punishment as for a contempt cannot be inflicted for disobeying a final judgment in cases where an execution can issue.
    3. Same.
    An execution can be issued upon the direction in the judgment as to the payment of taxes and assessments, and a failure to insert their amount in the judgment will give the plaintiff no right to punish the defendant for a contempt.
    4. Same.
    A final judgment, in such case, which directs the defendant to accept a deed, that he make the cash payment according to the contract, and execute a bond and mortgage for the balance, does not require indivisible acts, and the part of the judgment, which provides for the payment of money, cannot be made the basis of a contempt proceeding.
    Appeal from an order, denying a motion to punish defendant for contempt of court for refusing to obey a final judgment.

      John A. Straley, for app’lt; Frederick W Hinrichs, for resp’t.
   Giegerich, J.

This action was brought to require the defendant to specifically perform his contract for the purchase of certain real property. The trial of the issues resulted in a decision in favor of the plaintiff, and judgment was entered directing that the defendant accept a deed of the premises in controversy; that he pay on delivery of said deed the balance of the purchase price to be paid on delivery thereof pursuant to the terms of said contract in cash, to wit, the sum of $2,675, and, in addition thereto the sum of $2,975, which would have become due under ' said bond and mortgage if executed as provided in said contract,— making in all a cash payment of $5,650, with interest thereon; that upon the delivery of the said conveyance he accept the same, and deliver to the plaintiff a bond and mortgage to secure the balance of the purchase price, the form of said bond and mortgage to be settled and approved by one of the judges of this court in case the parties differ respecting it; and that he pay all taxes and assessments against said premises that may have become liens thereon since the 25th day of July, 1892, the date the title to said premises should have passed. And the judgment also provides that the plaintiff recover of the defendant his costs and disbursements, amounting to $409.40, “and that plaintiff have execution therefor.” Upon the defendant’s alleged refusal to obey the judgment, the plaintiff instituted these proceedings at special term to punish the defendant for a contempt, and the application was denied, “with leave to renew it, upon a proper demand, with respect solely to the acceptance of the deed and execution of the bond and mortgage in -the judgment mentioned, defendant refuses to perform as directed by the judgment in those particulars.” The moving papers failed to show that a deed and bond and mortgage were in fact tendered; but, tender of the deed, and of the bond and mortgage for execution, having been conceded, the court below held .that “the execution of the bond and mortgage may be enforced by atttachment, but not the payment of the balance of the contract price, for judgment therefor can be docketed, and such judgment can be enforced by execution.” The plaintiff did not renew the motion, but brought on this appeal.

The power to punish a party for a contempt for the nonpayment of a sum of money ordered or adjudged by the court to be paid has been restricted by subdivision 3 of section 14 of the Code of ■Civil Procedure to cases where by law execution cannot be awarded for the collection of such sum. And the same restriction has been preserved by section 1241 of the Code. Jacquin v. Jacquin, 36 Hun, 378, 380. These restrictions are not affected by subdivision 4 of the latter section, for that permits th'e punishment for a contempt only where the judgment requires the payment of money into court, or to an officer of the court. Jacquin v. Jacquin, supra; People v. Grant, 41 Hun, 351, 355. The judgment entered in this action being a final one, it is evident from an examination of the provisions of the Code relative to proceedings for the punishment of a contempt that subdivisions- 1 and 2 of section 1241 alone apply to the case at bar, subdivision 3 of the same section relating exclusively to an interlocutory judgment, and subdivision 4, as before shown, relating to judgments for the payment of money into court, or to an officer of the court. As the directions contained in the judgment for the payment of moneys are not “mandates" (Jacquin v. Jacquin, supra), the provisions of subdivision 3 of section 14 of the Code, supra, therefore, have no application. In either of the following cases, a judgment may be enforced by contempt proceedings:

“(1) Where the judgment is final, and cannot be enforced by execution, as prescribed in the last section. (2) Where the judgment is final, and part of it cannot be enforced by execution, as prescribed in the last section; in which case the part or parts, which cannot be so enforced, may be enforced as prescribed in this section. * * *” Code Civ. Proc. § 1241.

Section 1240 prescribes:

“In either of the following cases, a final judgment maybe enforced by execution ; (1) Where it is for a sum of money, in favor of either party; or directs the payment of a sum of money. (2) Where it is in favor of the plaintiff, in an action of ejectment, or for dower. (3) In an action to recover a chattel, where it awards a chattel to either party.”

The result of a careful examination of the authorities in relation to this subject is that we are convinced it has become well established by the frequent decisions in the courts of the state that punishment as for a contempt cannot be inflicted for disobeying a final j udgment in cases where an execution can issue.

Plaintiff’s counsel insists that an execution could not be issued upon the direction contained in the judgment as to the payment of taxes and assessments. This objection is, however, merely as to form, and not to substance. If there be any defect, the same may be cured by amendment. The amount of the taxes and asshssments have been fixed, and could have been ascertained upon inquiry at the proper office; and by his failure to insert the same in the judgment the plaintiff acquired no right to punish the defendant for a contempt Myers v. Becker, 95 N. Y. 486. But the direction referred to is, in our opinion, sufficient, if not for the purpose of issuing an execution, then, at least, to defeat the present application in respect thereto. Matter of Hess, 48 Hun, 586; 16 St. Rep. 255. In the case last cited the order directed the payment of a certain sum of money, also “the fees of the referee and stenographer, and such other disbursements as have been made or necessarily incurred in said accounting, to be taxed by the clerk on notice; and also the interest on the sum awarded;” and the court held that the. order was capable of enforcement by execution under section 1240 of the Code, and that punishment as for a contempt could not be inflicted for disobedience of the order. As the direction contained in the judgment for the payment of the moneys was capable of enforcement by execution, and as the willingness of the defendant to comply with the remaining provisions of the judgment has not been questioned upon this appeal, it is apparent that the order appealed from was proper.

Plaintiff’s counsel insists “that the execution of the deed, the bond, and mortgage, the payment of the balance of the purchase price, and the payment of the taxes are indivisible acts, constituting together ‘specificperformance’ of the judgment and cannot be separated for the purpose of defeating this application;”' but this contention is effectually answered by the provisions of subdivision 2 of section 1241 of the Code, above cited, which expressly authorizes such a separation to be made, and the right to do so was distinctly recognized in People v. Grant, supra, in which the complaint alleged that the defendant had obtained from the plaintiff, by means of false and fraudulent representations, her promissory note for $100, and also the sum of $800 as a deposit to secure the payment o£ the rent reserved by a lease mentioned in the complaint. The judgment directed the return and cancellation of the note and the return of said sum of $300 and also gave damages to the amount of $4,468.71. Upon his failure to comply with the provisions of the judgment, the defendant was adjudged guilty of contempt, a fine being imposed on him, and directions were given for his imprisonment until the delivery and cancellation of the note for $100 by him, and until he should pay said sum of $300. Upon appeal to the supreme court, first department, it was held that the failure of the defendant to comply with the direction to pay over the $300 to the plaintiff did not justify his punishment as for a contempt, as the judgment therefor could be enforced by an execution issued thereon ; and that, as to his failure to deliver up the note for cancellation, his imprisonment to that extent was legally directed. And this brings up the point so strongly urged by the plaintiff in the court below, “ that unless plaintiff can have attachment for refusal to pay the money directed to be paid by the judgment, he may lose it, because defendant may accept the deed, give the mortgage, and, after refusing to pay the cash balance, dispose of the property and leave the plaintiff remedilessbut the learned chief judge said in this connection : “ This fear is groundless. The plaintiff dockets his judgment for the money, and it becomes a lien upon the property as soon as the deed is delivered and the title exists in defendant.” This disposition of the law, as it exists, as to the remedies of the plaintiff in the case, appears to us to be correct. If the remedies provided for by the provisions of the Code of Civil Procedure are not sufficient, the legislature should be appealed to-for the remedy, as the courts can only apply the laws as made by it, and not make them. For these reasons the order appealed from should be affirmed, with costs.

Order affirmed, with costs.

All concur.


text:
    Elvira Purdy, Resp’t, v. Manhattan Railway Company et al., App’lts.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    Pleading—Answeb—Supplemental.
    In an action to enjoin the operation of an elevated railroad in the street in front of plaintiffs premises, the defendant may file a supplemental answer, setting up a stipulation by plaintiff, given in a proceeding to condemn plaintiff’s essements, not to interfere with defendant’s posséssion pending an appeal from the' award.
    Appeal from an order, denying a motion for leave to serve a supplemental answer, setting up matter arising during the pendency of the action.

      Julien T. Davies and Arthur O. Townsend, for app’lts ; Samuel G. Adams, for resp’t.
   Bischoff, J.

This is an appeal from ah order denying defendants’ motion for leave to set up by supplemental answer the defense that subsequent to the commencement of the action the plaintiff had entered into a stipulation that the defendants' possession of the easements in suit should not b.e disturbed, this stipulation having been given by the plaintiff, in accordance with the provisions of the general railroad act (Laws 1850, c. 140, § 18 ; Rev. St. [8th Ed.] p. 1745), upon her appeal to the general term of the supreme court from an award of commissioners in condemnation proceedings which had been instituted by the defendants for the purpose of acquiring such easements, the above statute requiring that such a stipulation be entered into as a condition to the hearing of an appeal so taken. This stipulation, as appears from the proposed supplemental pleading, was given on the 2d day of January, 1894, and filed with the clerk of the general term of the supreme court on the 5th day of January, 1894. On the 16th day of February an order was made by that general term permitting this plaintiff, the appellant in that proceeding, to annex the stipulation to the printed papers upon the appeal then pending. From the record before us it appears that on this same day an order was entered reversing the award appealed from, and ordering a new appraisal. Under § 544 of the Code, the right to serve a supplemental pleading is not to be withheld where timely asserted, unless it be shown that the object of the application is to obtain delay, or is not otherwise in good faith, or unless the proposed pleading is manifestly frivolous, Williams v. Hays, 23 St. Rep. 489; Mitchell v. Allen, 25 Hun, 543, or. does not present a doubtful question, Morel v. Garelly, 16 Abb. Pr. 269; Lyon v. Isett, 34 Supr. 41; Tifft v. Bloomberg, 49 Supr. 323. Where a supplemental answer cannot be a bar, it will not be allowed, Ratzer v. Ratzer, 2 Abb. N. C. 461; but when there is some doubt as to the question, it should not be determined upon the motion for leave to serve the pleading, but upon the trial, Hoyt v. Sheldon, 4 Abb. Pr. 59. It appearing that the appeal from the award of the commissioners resulted in the setting aside of the award, the question arises with regard to the construction of the statute, requiring the filing of the stipulation noted as a condition to the hearing of the appeal, for the purpose of determining whether the intention of the legislature was to limit the effect of the stipulation to the pendency of the appeal, or whether its effect is to be viewed as absolute and continuing. Assuming the stipulation to be absolute, a further question would arise as toi whether the requirement that it be given would be, in effect, the depriving an appellant of his property without making just compensation, the requirement dealing only with the “possession,” and.the act providing for a new appraisal in the event of the reversal of an award upon appeal. Beyond this there is a question - as to whether the plaintiff’s action for damages and; alternative injunctive relief may or may not be viewed as a disturbance of the defendant’s possession of the easements in suit. The motion could not, therefore, have been properly denied upon the ground that the supplemental answer was frivolous, or that it did not raise a doubtful question, and it does not appear from the paper's that there was bad faith upon the part of the defendants in making the application. Nor do we think that the defendants were guilty of loches in making this motion. True, the stipulation was tiled on January 5, 1894, and the motion was made on April 18th, but the final order of the supreme'court reversing the award of the commissioners was not made until February 16th, and the question with regard to the absolute effect of the stipulation could not be fairly presented until that time. We do not consider that the facts shown, called for a denial of the motion upon this ground, and, moreover, no point was made upon the hearing below as to the defendants’ failure to move immediately upon the determination of the appeal by the supreme court, the motion being opposed upon the ground that defendants had failed theretofore to set up the pendency of the condemnation proceedings, which fact could not be of significance to the question then presented. We conclude that the defendants should be permitted to set up by supplemental answer the matter thus sought to be alleged, upon payment of $25 costs. Order reversed, without costs, and permission accorded to defendants as above.


text:
    The People ex rel., John Torney, App’lt, v. Joseph H. Stiner, as Justice, etc., Resp’t.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    Mandamus—When not proper remedy.
    Mandamus will not lie to compel a justice o£ the district court to reinstate a court attendant on the ground that he was an honorably discharged volunteer fireman ; the remedy is by quo warranta against the incumbent.
    Appeal from an order, dismissing an application for a writ of mandamus.

      John Jeroloman, for app’lt; Theodore Connoly, for resp’t.
   Giegerich, J.

The relator was duly appointed as an attendant in the district court in the city of New York for the eighth judicial district in March, 1888. On the 2d day of January, 1894, he was removed, without cause and without a hearing by Justice Joseph H. Stiner, the present justice of said court, who has appointed one John Nunnery in his place as such court attendant, and who now fills said position. Upon being notified of his discharge, the relator called Justice Stiner’s attention to the fact that he was an honorably discharged volunteer fireman, and demanded his immediate reinstatement, which being refused, an application was made at special term for a peremptory writ of mandamus requiring said .Justice Stiner “to immediately recognize, reinstate, or reappoint” the relator to said position. The learned judge, "in an elaborate opinion, dismissed the proceeding, wherein he, among other things, said:

“In New York it is settled beyond controversy that quo warranto is the proper and the only proceeding for trying and adjudging the right to office; and that, as against an incumbent occupying under the color of legal title, mandamus is unavailable and inoperative for the admission of an adverse claimant,”—citing People ex rel. Wren v. Goetting, 133 N. Y. 569; 29 St. Pep. 286, and numerous authorities.

The relator has brought on this appeal, and his counsel insists that he has pursued the proper remedy.

Spelling, in his treatise on Extraordinary Belief in Equity and at Law, at page 1293, § 1576, says :

“There is an important distinction to be taken between cases where mandamus is sought to induct a claimant into an office already filled, and those where one actually in office'has been removed or deprived of his rights and privileges therein. In the former case, as has been shown, the incumbency of another under such color of right as contitutes him an officer de facto rather than a mere intruder will be a complete answer to the petition; but, where one has been wrongfully deprived of an office by the illegal appointment of another, mandamus will issue to effect his restoration, even though such appointee be in possession de facto. It is essential, however, to entitle a relator who has been removed to mandamus for his restoration that he be clearly entitled de jure to the office from which he has been removed. It is not sufficient that he show himself to be an officer de facto, but he must also show a clear legal right, and his failure to do so will warrant a refusal of the peremptory writ.”

In People v. Goetting, supra, the relator was clerk of a police court in the city of Brooklyn. He was removed by the respondent, who appointed another in his place. The relator claimed that as an honorably discharged soldier of the late war of the Bebellion, he could not be removed except for cause and after a hearing had, and brought proceedings by mandamus for his restoration to office. The court below denied the application for the writ, on the merits, and this ruling was affirmed by the general term. On appeal to the court of appeals, it was decided that the proceeding should not have been entertained, and that the court below should have left the claimant to his action in the nature of quo warranta, in which the incumbent of the office could be heard in defense of his rights. Gray, J., who spoke for the court, said :

“The rule must be regarded as well established by frequent decisions in the courts of this state that the writ of mandamus should be refused to aid the admission of a claimant into an office already filled under color of law, and when the title to it presents a disputable question.”

The relator’s right to the position, which is conceded to be a public office, turns upon the construction of the language of chapter 577 of the Laws of 1892, entitled “An act to amend section one of chapter one hundred and nineteen of the laws of eighteen hundred and eighty-eight, entitled ‘An act relating to employees for the various cities and counties of the state,’ ” which in part provides:

“No person holding a, position by appointment in any city or county or who may hereafter be appointed, receiving^ salary from such city or county (unless he has been appointed for a definite term), who * '* *" shall have served the time required by law in the volunteer fire department * * * shall be removed from such position except for cause shown after a hearing.”

The object of this act was to extend the privileges, of the act. of 1888 to veterans of the Mexican war, and to honorably discharged volunteer firemen, and with these exceptions there have been no changes in the original act.

These statutory provisions, which are known as tfyfe “Veteran Laws,” were carefully examined by Mr. Justice Barrett at circuit in, McDonald v. Mayor, 82 N. Y. Supp. 280, in which the relator sought reinstatement by writ of mandamus as qne.ofthe assistant clerks of the city court of b[cw, York, on, the ground that'he was a veteran of the war of the Rebellion. The learned justice directed a verdict in favpr of the defendant, in an opinion delivered on May 24, 1889, in which he, among other things, said:

' “ It seems to.be reasonably clear from, the, entire act. that the intention was to cover the. civil and political administration of cities and counties, and not to interfere with the judicial machinery. * * * If the legislature intended to embrace other than city or county officers, it must be presumed that the the statute would have so declared in express terms.”

This ruling was followed by O’Brien", J., at chambers, in People v. Nicoll, (sup.) infra, in which he denied the application of the relator, who was a veteran of the war of the Rebellion, for reinstatement to a position in the district attorney’s office.

" These adjudications are the only ones in point to which we have been referred, or which 'we have been able, after diligent research, tó discover. They appear to be directly in point, and adverse to the position contended for by the relator; but in this proceeding they should be considered only in connection with the question whether the relator has shown a clear legal right to the. office. This, in our opinion, he has failed to do. At all events, it is manifest that the title to such office presents a disputable question. For these reasons, the order appealed from should be affirmed, with costs.

All concur.


text:
    William Kessler et al., Resp’t, v. Berthold Levy et al., App’lts.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    1. Arrest—Fraud.
    An actual intent to defraud, clearly apparent from the facts, is essential to sustain the validity of an order of arrest, under subd. 4, § 557 of the Code.

      3. Same.
    The burden of proof is upon the party who alleges the existence of fraud, and where the facts are equally consistent with honest motives, the burden has not been sustained.
    Appeal from an order, denying, a motion to vacate an order of arrest, on the ground of the alleged insufficiency of the facts on which it was granted.

      B. F. Einstein, for app’lts; Simon Sultan, for resp’ts.
   Bischoff, J.

The ground of the defendants’ arrest, as it is recited in the order, is “ that since the making of the contract upon which this action is based, and in contemplation of making the same, the defendants have removed and disposed of their property with intent to defraud the plaintiffs herein.” Upon the motion to vacate the order, it was pertinent to inquire whether or not the facts presented justified the defendants’ arrest. If they did not, it was error to deny the motion. The Code of Civil Procedure (section 549, subd. 4, and section 557) authorizes the arrest of the defendant in an action upon contract, where it is alleged in the complaint, and is shown by affidavit, that “ since the malting of the contract, or in contemplation of making of the same,” he has “removed or disposed of his property with intent to defraud his creditors, or is about to remove or dispose of the same with like intent.” Not the removal or disposal of the debtor’s property merely, or such removal or disposal with intent to hinder and delay creditors, but the removal or disposal of his property with intent to fraud creditors, is made ground for the debtor’s arrest. The provisions of the Code of the Civil Procedure, in so far as they authorize imprisonment for debt, are penal in their nature. They are, therefore, not •to be extended by construction beyond their precise meaning and import, Hathaway v. Johnson, 55 N. Y. 93, and, in view of the policy of the statute to abolish imprisonment for debt, the fraud •contemplated by the Code is to be deemed fraud in fact, as distinguished from fraud in law, — actual fraud, not constructive fraud. Id. Accordingly it was held, in a case where the ground of the arrest was identical with the one here asserted, that an actual intent to defraud, clearly apparent from the facts, is essential to sustain the validity of the order of arrest. Hoyt v. Godfrey, 88 N. Y. 669. Neither fraud, nor an intention to defraud will ever be presumed. Surmise or conjecture will not be permitted to take the place of evidence. Fraud, or an intention to defraud, must appear by reasonable inference, at least, from the facts in evidence. The burden of proof is upon the party who alleges the existence of fraud, or of an intention to defraud, and, if the facts in evidence are equally consistent with honest motives, then, manifestly, the burden has not been sustained.

Now, what are the facts of which the plaintiffs predicate their right to the arrest of the defendants ? At the time of the incorporation of the company hereinafter referred to, the defendants had been engaged in business as merchants in the city of New York, for upwards of 20 years, under their firm name of Levy & Levis. On August 28, 1893, the firm owed $300,000, inclusive of the plaintiffs claim, and had assets valued at $350,000. On that da.y they, with William Seligsberg and George P. Mellick, caused themselves to be incorporated under the name of the Levy & Levis Company, with a capital of $125,000. Of the capital stock, $1,000 was issued at par, paid to the company, and $124,000 was issued to the defendants’ firm in consideration of the transfer to the company of all the firm assets. Thus, from the plaintiffs’ own showing the capital stock, which was nominally worth $125,000, was actually worth $351,000, or $51,000 more than was owing by the defendants to their creditors. The stock issued to the firm the defendants at once offered to their creditors, including the plaintiffs, to be accepted either as payment or as collateral security. Some of the creditors accepted the stock; others including the plaintiffs refused.

Do the facts narrated sustain an inference of an intention on the past of the defendants to defraud their creditors? We are of the opinion that such a conclusion is unwarranted. Before the claims of their creditors were reduced to liens, the defendants had the absolute right to invest their assets in every legitimate enterprise, and to exchange them for other commodities of at least equal value. Their exercise of that right could not, of itself, therefore, be evidence of fraud, or of an intention to defraud. Let it assumed that the defendants had exchanged their assets for shares of equal amount of a solvent bank, and then tendered the shares to their creditors in satisfaction of the latters’ demands, would the plaintiffs, would any one, have questioned the good faith of the transaction ? Why, then, is the exchange of the assets for the capital stock of the Levy & Levis Company to be characterized as fraudulent, as a disposal or removal by the defendants of their property, with intent to defraud creditors. The facts urged to sustain •the order for arrest concede that at the time of the tranfer of the defendants’ assets to it, the actual value of the capital stock of the company issued to the defendants, and, offered by them to their creditors was in excess of the aggregate amount of the defendants’ indebtedness. It may be that it would have been prudenton the part of the defendants, before making the transfer and exchange, to have secured the consent of their creditors. But, admitting that they have been lacking in that respect, it does not follow that they intended to defraud, in view of the plaintiffs’ admission that the defendants at one offered the entire avail of the exchange to their creditors: Economy, greater convenience in the management of the business, the maintenance of its good will, and a variety of exigencies, every one of them absolutely consistent with honest motives, afford solutions of the defendants’ intention in the transfer of their business to a corporation True, the former assets of the firm because of their tangible character, might have afforded the creditors a readier means of realizing their demands in money, but the preference of creditors in that respect cannot be permitted to take the place of evidence of an intention on the part of the defendants to defraud. That after the transfer of the defendants' assets and business to it, and after the company’s issue of its capital stock to the defendants, partly because of their perishable nature and partly because of a decline in market values, the assets became reduced in value, and so disastrously affected the capital stock, is obviously not attributable to the defendants, nor can those facts have relevancy to the defendants’ intention at the time of the transfer of their assets and business in exchange for the stock. Having reached the conclusion that the facts did not authorize the order of arrest, discussion of the remaining points urged for reversal is unnecessary. The order denying the defendants’ motion to vacate the order is reversed, and the order of arrest is vacated, with costs of the motion and of this appeal to the defendants.

All concur.


text:
    Campbell Printing Press and Manufacturing Company, App’lt, v. Robert P. Yorkston, Resp’t.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    1. Evidence—Presumption.
    The giving of a promissory note is prima, facie evidence of an accounting and settlement of all demands between the parties, and that the maker was indebted to the payee upon such settlement to the amount of the note.
    2. Brokers—Commissions.
    A broker who, without the request of the vendor, procures a purchaser, cannot recover compensation from the vendor.
    3. Evidence—Burden op proof.
    Where a party, who has the burden of proof, swears unqualifiedly and explicitly in support of his contention, and the other party as unqualifiedly and explicitly swears to the contrary state of facts, and there is no evidence in the case corroborating the former party, he fails to make out his case.
    Appeal from a judgment of the city court, affirming a judgment rendered on a verdict in favor of defendant, and from an order denying a motion for a new trial.

      Charles De Hart Brower, for app’lt; John Reilly, for resp’t.
   Bookstaver, J.

This action was brought on a promissory note for $65.10, dated August 23, 1889, payable one month after date. Defendant admitted his liability upon the note, but set up a counterclaim for commissions upon the sale of five printing presses made between July, 1889, and March, 1890. From the evidence it appeared that the defendant had been in plaintiff’s employ as a salesman in its western office, prior to 1884, upon a commission of 10 per cent., by special contract', on all presses sold in the West. He left plaintiff’s employment in 1884, under an agreement, for a consideration of $4,500, that he would not sell any of plaintiff’s presses for three years. Prior to January, 1889, defendant was employed by another concern selling presses, and in September, 1889, went with another rival concern, and is now in the employ of a third. Defendant had no conversation with plaintiff’s officers between 1884 and 1890. In the latter year, and many months after the note was made, and after the sale of the presses for which commission is asked, he had a conversation with the plaintiff’s president, who told him, as defendant testifies: “You bring the customer here, and" we will fix you. That is all right." This took place just prior to atrip which defendant was then about to make on his own business. There is no other evidence of any employment of defendant by plaintiff after he left their employ in 1884, and the only evidence as to what defendant did in reference to the sales in question was that Mr. Price, who had been a customer of the plaintiff, told defendant he wanted plaintiff’s presses; that defendant said, “ Why don’t you go around there,” and Mr. Price said, “I don’t want to go around there,” .and then defendant prevailed upon him to do so; that when defendant took Mr. Price to plaintiff’s office nothing was said about ■commissions, nor was anything said by defendant that he expected any. He left before any presses were purchased, and the whole transaction, as far as the testimony discloses it, was negotiated and closed by plaintiff’s general manager. Defendant at no time made any claim for commissions on these sales prior to setting them up as a counterclaim in his answer to the action brought on the promissory note. Before the action was commenced, plaintiff’s counsel wrote defendant, asking payment of the note, and in his reply the latter did not claim that it was paid by commissions, but that its payment had been arranged for in May, 1892 (nearly three years after the commissions now claimed were earned, if they were ever earned), byr defendant agreeing to send to plaintiff such inquiries as might come to him, and which the Whitlock Company, with whom he was then engaged, could not fill. When defendant first rested, and again at the close of all the testimony, plaintiff’s counsel moved for a direction of a verdict in his favor for the amount of the note, on the ground that in May, 1892, there was a settlement between the parties, and it was then agreed that the note should be paid in a certain way; that a reasonable time had elapsed, and the note had not been paid, and consequently the plaintiff was entitled too verdict; and plaintiff also moved to dismiss the counterclaim. These motions were denied, and the case was submitted to the jury, who found a verdict for the defendant for 10 per cent, on $4,500, the purchase price of two printing presses sold by Mr. Price in July, 1889, a month before the note sued upon was delivered.

The giving of a negotiable note by the defendant raised a presumption that a settlement had been had, and that the defendant was indebted to the. plaintiff. In other words, the giving of a promissory note is prima facie evidence of an accounting and .settlement of all demands between the parties, and that the maker was indebted to the payee upon such settlement to the amount of the note. Lake v. Tysen, 6 N. Y. 461; Wright v. Wright, 74 Hun, 138; 56 St. Rep. 305. To overcome this presumption a very clear preponderance of evidence is required. Blake & Johnson v. Krom, 36 St. Rep. 83. In the case under consideration the defendant offered no explanation as to why he did not insist upon his claim for commissions when the note was demanded of him to settle his account, and Mr. Ogden Brower testified:

“'The amount for which the note was given was for the balance of Mr. Yorks ton’s account with us at that time. I "wan ted to get it closed up, and I asked Mr. Yorkston to give us a note for it, which he said he would do, and he did.”

Again, when asked for the payment of the note by plaintiff's attorney, he did not claim it had been paid by commissions earned, but that the note was to be paid in the way before stated. In view of these facts, it seems extremely doubtful whether "there should have been any recovéry for these commissions, even granting that they had been earned. But, in our judgment, after a careful perusal of the evidence, the defendant failed to show any express or implied employment by -the. plaintiff to. make the sales on which commissions were claifli.ed. The only evidence of any employment prior to the sale of’thes'e presses was in 1884. After that time, and up to the January preceding this sale, defendant had been in the employ pf the Duplex. Manufacturing Company, arid he himself testified’ he'had no conversation with the plaintiff relative to selling’presses for them prior to that time. It is evident, therefore,'" that there was no express contract of employment ; and from the fact of a former employment, which had terminated, no agency could be implied. 1 Am. & Eng. Enc. Law, 342, and cases cited. In O'Neill v. Howe, 31 St. Rep. 272, it is said : “Ordinarily, the leaving' of defendant’s employ would terminate the contract for a commission on sales, and any claim for commissions where * * * the claim is based upon work, labor and services in the sale of goods at defendant’s request.”

The only other ground upon which an employment can possibly be claimed is that, by an acceptance of defendant’s alleged service, ■a promise to pay on the part of the plaintiff may be implied. But the defendant was not a regular broker. He did not 'announce himself to plaintiff’s officers as a broker. He did not make claim for a commission at the time he introduced Mr. Price, and said nothing from which plaintiff’s officers could infer that he had anything to do with bringing the purchaser to plaintiff’s place, and he left that place before negotiations had been begun, or any price named or terms mentioned for the purchase. It is well settled that if a broker, without a previous request, brings a customer to a vendor, and the latter, without further acceptance of the broker’s services, takes the customer, the broker is not entitled to compensation. An owner is not obliged to refuse a possible customer because services, which he has not requested, have been obtruded upon him; nor can he be enticed into a liability for commissions without his knowledge. Pierce v. Thomas, 4 E. D. Smith, 354; Mechem, Ag. § 600. In order to entitle the broker to commissions. there must either be an actual employment or a ratification and acceptance of the broker’s acts; but in such case the intent to ratify must be plain, Pierce v. Ihomas, supra, and surely there could be no ratification where no claim was made by the broker, and the fact that he was acting as broker was not drawn to the attention of the seller at the time. Tinkham v. Knox, 46 St. Rep. 20; affirmed 2 Misc. Rep. 579 ; 51 St. Rep. 580; Rorer v. Kellogg, Daily Reg. Jan. 17, 1885; Blomquist v. Arnold, Id. June 25, 1884.

Again, we think there was no sufficient evidence to support the finding of the jury that the rate of commissions in New York City was 10 per cent. It is true, the defendant testified that 10 per cent, was the usual custom where the price asked is given, but he also testified that where the price is reduced the commissions have to suffer, sometimes to the extent of 5 per cent., sometimes 7iper cent., and even more. It is clear, however, from the defendant’s cross-examination, that this commission of 10 per cent, related to his sales made in the West, and not in this city. But, even if it were, he is entirely uncorroborated in regard to it, and is contradicted by Ogden Brower, Mr. Ahlstrom, a witness for plaintiff, and Mr. Bresnon, a witness produced by defendant, who all testified that they knew of no custom in the trade in regard to the amount of commissions, and that the compensation in that class of business was a matter of bargain on each sale. The burden of showing the custom was upon the defendant. Where one party, who has the burden of proof, swears unqualifiedly and explicitly in support of his contention, and the other party as unqualifiedly and explicitly swears to a contrary state of facts, and there is no evidence in the case corroborating the party who has the burden of proof, he fails to make out his case. Stevens v. Trask, 44 St. Rep. 649; Smith v. Gunn, 35 St. Rep. 427; Vyse v. Vyse, 2 St. Rep. 106. We therefore think the counterclaim should have been dismissed, and a verdict directed for the plaintiff upon the note. The judgment must therefore be reversed, and a new trial ordered, with costs to the appellant to abide the event.

All concur.


author: Coffin, S.

text:
    In the Matter of the Judicial Settlement of the Accounts of Josehii Lamb, as Administrator of Peter Rennie, Deceased.

      (Surrogate's Court, Westehester County,

      Filed December, 1894.)

    1. Life Tenants—Impeovements.
    A life tenant, who makes improvements upon the premises, cannot claim compensation therefor from the reversioner or remainderman.
    2, Executobs—Liability for co-executor.
    The fraud or negligence of one executor, who has thereby committed waste, is not chargeable to his co-executor unless the latter in some way, contributes thereto or might have prevented it by the exercise of due diligence.
    Judicial settlement of the accounts of an administrator.

      John Henry Hull, for administrator; J. C. O’ Conor, for contestant Rennie; Root & Clarke, for contestant Agnes Leech.
   Coffin, S.

Serious irregularities seem to have accompanied the proceedings in regard to this estate. In the first place, the executor caused only the executrix, the life tenant, to be cited on his accounting in 1879, in which he claimed and was allowed a credit of $992.56, as the cost of the addition or bay window. All interested parties should have been cited, and thus had an opportunity of objecting to it. The allowance of it affected all the subsequent accountings, down to and including the present one, where it is, for the first time, questioned. Neither Robert Rennie, brother and next of kin of deceased, now dead, nor his personal representatives, nor the Drew children, or their personal representatives, were cited on any of the accountings preceding this. The Drew children all died anterior to the death of the widow, and, as their legacies were not given them until the death of the widow, they did not vest, but lapsed. ■ Warner v. Durant, 7.6 N. Y. 183; Smith v. Edwards, 88 id. 92. Hence their representatives have no interest in this matter, the amounts of their several legacies passing to the next of kin of the testator, among whom are the children of Robert Rennie, the contestant, Agnes Leech being one of them. Their right to appear.in person, instead of by the executor or administrator of their deceased father, is not questioned by the learned counsel for the administrator, although it became a part of ■his estate to be administered. However, as the point has not been made, they will be treated as proper parties. As such, they object to the credit allowed to the executor, Cummings, for the money paid by him as the cost of the addition to the dwelling house. That objection, in the abstract, must be regarded as well taken. If the tenant for life make improvements upon the premises, he cannot claim compensation for the same from the reversioner or remainderman, though he is under no legal obligation to do more than keep the premises in repair. 1 Washb. Real Prop. (3d ed.) 110, par 24, citing Corbett v. Laurens, 5 Rich. Eq. 307. The same rule, on like facts, applies as between landlord and tenant. A mere knowledge by the remainderman or reversioner of such an addition or improvement, which is alleged in this case, is not sufficient to render it a proper charge against the corpus of the estate. There must be evidence of their assent that it be so charged. There might be cases where an expenditure should be apportioned between the life tenant and remainderman, as where an improvement, which is beneficial to both, is made under the direction of the public authorities, but not where it is voluntarily done by the life tenant for his own comfort or convenience. Still, it is not intended here to say that the administrator with the will annexed can be held liable for the devastavit—the misapplication of funds—by his predecessor, and especially after decree settling his accounts. In England, by St. 30 Car. II. c. 7, it was enacted that, if an executor de son tort wastes the goods and dies, his executor shall be liable in the same manner as his testator would have been if he had been living. And it was afterwards adjudged that a rightful executor, who wastes the goods of the testator, is, in effect, an executor de son tort for abusing his trust (3 Mod. 113), and his executor or administrator is made liable to a devastavit by St. 4 & 5 W. & M. c. 24. But I know of no such statute or ruling of the courts in this country. We hold, on the contrary, that even the fraud or negligence of one executor, who has thereby committed waste, is not chargeable to his co-executors unless they, in some way, contribute thereto, or might have prevented it by the exercise of due vigilance. It would be clearly unjust to hold a successor personally liable for the waste of any of his predecessors. Neither their father nor the present contestants were made parties • to that first accounting .proceeding, nor any of the subsequent ones, and hence it is believed that, notwithstanding his various accountings and discharge, the éxeóutor, Cummings, is still liable to account to these contestants, ánd to refund to them their share of the funds so misapplied by him. Their remedy is not against the administrator in this proceeding. The executor, Cummings, was bequeathed a legacy of $500 “ as a small acknowledgment for his services as my executor," but not payable until after the death of testator’s widow. It is not expressed to be in lieu of his commissions, and I think he is entitled to them in addition. The interest received by the accounting party since the death of the life tenant, if any, must be accounted for here. Ordered accordingly.


text:
    Walter Myers, Resp’t, v. Robert J. Dean, App’lt.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    Contract—Consideration.
    An express promise to pay for past services, rendered without a request, is void for want of consideration.
    Reargttment.

      L. E. Warren, for app’lt; P. Q. Eckerson, for resp’t.
   Bookstaver, J.

On the first argument of this appeal we concluded that on the whole evidence the complaint should have been dismissed, and in the opinion then delivered pointed out that the complaint was equivocal, and might authorize a recovery for the value of plaintiff’s services in helping to procure the lease, or brokerage eo nomine for doing so; and that, if the action proceeded upon the ground of services, it was impossible the judgment rendered should stand, because unsupported by evidence of the plaintiff’s services as distinguished from the brokerage allowed upon procuring the lease. We also showed that from the nature of the case the lease could not have been procured by the plaintiff’s efforts. Myers v. Dean, 9 Misc. Rep. 183 ; 60 St. Rep. 644. But upon the motion for a reargument this court carefully scrutinized the record as it went to the court of appeals, and compared it with the predent record, and found that there was but little difference in the evidence contained in each; and as the court of appeals had decided upon the first record that, although it was difficult to see in the evidence that plaintiff did very much by way of accomplishing the result that was reached in the negotiation with the comptroller, yet the conclusion was permitted from such evidence that he did bring the defendant and that officer together, and that while the negotiation was pending the defendant treated the plaintiff as in his service, and promised to pay him the amount "claimed by why of brokerage or commissions in the event the transaction resulted in á lease of the property to him, and that, therefore, it was proper to submit that question to the jury, and, .after a careful re-argument of the whole case; we feel bound to follow the dérmica-tian of the court of last resort in that respect. The earnestness with which the main question was debated upon the former argument probably led the judges then composing the general term to overlook an exception taken to the refusal of the court to charge one of the defendant’s requests, which was as follows:

“If you find defendant agreed to pay plaintiff brokerage, and that that promise was made November 2, 1888, and after all the services plaintiff rendered had been performed, and that no service was rendered subsequent to that date which tended towards defendant’s procuring the lease, the plaintiff is not entitled to recover.”

This request was founded upon evidence in the case, and we think should have been granted. It called the jury’s attention specifically to the time when, according to defendant’s testimony, the promise to pay brokerage had been made by him, if ever. It is true that plaintiff had testified differently, but the jury as to this portion of the testimony might have believed the defendant, and not the plaintiff, and, if they did not believe the defendant’s testimony, then the promise was made without consideration. It is well settled that, where services are rendered by a volunteer without a request, an action cannot be maintained to recover their value. Bartholomew v. Jackson, 20 Johns. 28; Livingston v. Ackeston, 5 Cow. 531; Williams v. Hutchinson, 3 N. Y. 312; McCarthy v. Mayor, 96 id. 1. An express promise to pay for past services, rendered without a request, is void for want of consideration. The defendant was under no obligation to make the promise or to pay for services theretofore rendered. It was wholly voluntary, and cannot be made the basis of an action. Presbyterian Church v. Cooper, 112 N. Y. 517; Twenty-Third St. Baptist Church v. Cornell, 117 id. 601; 28 St. Rep. 482; Eastwood v. Kenyon, 11 Adol. & E. 438. A primary benefit voluntarily conferred by plaintiff, and adopted by defendant, is not such a consideration as will sustain an action on a subsequent express promise. Smith v. Ware, 13 Johns. 257; Ehle v. Judson, 24 Wend. 97; Geer v. Archer, 2 id. 420; Chilcott v. Trimble, 13 Barb. 508; Ainsley v. Mead, 3 Lans. 126. The court’s refusal to charge the jury as requested withdrew from their attention the law applicable to the facts established by defendant’s evidence, and was such error as cannot be deemed harmless. Nor is plaintiff’s contention that it had been substantially charged by the court tenable. The charge upon that point was general, and the jury could have inferred from it that a promise made subsequent to the negotiations, but before the final completion of the transaction, would have been sufficient.

But the plaintiff claims that the recovery was for services rendered, and not for brokerage eo nomine, and that, therefore, the request was infirm, in that the word “brokerage” was used in it instead of “compensation.” This criticism is not sound, for it is clear that the word “brokerage” in this request was used in its common and ordinary acceptation, as defined by the Imperial Dictionary, the Encylopaedic Dictionary, Webster, and others as the equivalent of compensation for services rendered, and not in the strict legal definition for services rendered, and riot in the strict legal definition of thé term. A reading of the case shows that all the parties to the action and their counsel had used it in this sense throughout the trial; and the learned judge himself used it in this sense in his charge, for he said, “And promised to pay him the amount claimed by way of brokerage or commission, in the event," etc. As before stated, in the opinion delivered on the first argument of this appeal, we held that there could be no recovery for brokerage eo nomine for procuring the lease, and to this decision was adhere. Therefore the verdict of the jury must have been for the supposed value of the plaintiff’s services. The only testimony on that subject was by the plaintiff himself, and he testified it was to be 1 per cent, upon the gross amount of the lease. This is full compensation for procuring a lease, which it is acknowledged the plaintiff did not do in this case, and the jury evidently did not accept the statement in its entirety, for the verdict, as we figure it out, is only about three-quarters of 1 per cent, upon the gross amount. It is clear, therefore, that the jury must have been in some way misled as to the value of such services, 'as the amount of the verdict ($2,973.56) appears to us to be grossly in excess of the value of any services testified to by the plaintiff. The judgment must therefore be reversed, and a new trial ordered, with costs to the appellant to abide the event.

All concur.


author: Daly, C. J.

text:
    George Goodman, Resp’t, v. Henry Myers, App’lt.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    Witness—Credibility.
    Where the testimony of a witness, on his direct examination, bears upon an important issue in the case, it may be shown, on his cross-examination, that he has a pecuniary interest in the result of the action.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      A. J. Berrick, for appl’t; Charles Steckler, for resp’t.
   Daly, C. J.

The plaintiff, George Goodman, claimed to be the owner of a grocery business at 71 Cannon street, by virtue of a bill of sale executed to him on October 24, 1892, the day before the marshal’s levy, by his brother, Adolph Goodman. Adolph Goodman claimed to have a bill of sale from Fischel, one of the debtors in the attachment, executed on October 22,1892. The bona fides of these conveyances was the issue tried in the action, and the jury found by their verdict that they were executed in good faith, and for a valuable consideration. It is contended by appellant that the verdict was against the evidence; that the sales were presumptively fraudulent, because the vendor, Fischel, remained in possession after his conveyance, and that there was no evidence to rebut the presumption; and that evidence was improperly admitted to affect the credibility of defendant’s witness Hulla. The case as made out by plaintiff was this: Fischel, in August, 1892, borrowed $300 from his brother-in-law, Adolph Goodman, to buy this grocery, and gave his note for it. When the note was due, on October 22, 1892, Goodman demanded payment, and Fischel offered to give him the store upon surrender of the note and the payment of $25 additional; whereupon a bill of sale was executed. Adolph Goodman immediately sought a purchaser for the business, and found one in his brother, the plaintiff, who was brought to him two days after by a broker, and to whom he sold for $350. The peculiar circumstance of his making a sale to his own brother through a broker, and the other circumstances of the case, are the subject of criticism by the plaintiff, but the jury considered the explanation and statements given by the witnesses, the two brothers, the broker, and others, and, if they believed that the witnesses were truthful, they were entirely justified in finding that Adolph Goodman took his property in good faith, in payment of his debt, and that George Goodman, the plaintiff, bought it in good faith, for cash. The verdict of a jury, upon such a state of facts as here disclosed, could not be disturbed by us, in any reasonable view of our duty to review evidence upon the motion for a new trial.

The fact that Fischel, the judgment debtor, remained upon the premises after the sale by him cannot be ’disputed. Whether he remained in the store, or merely occupied by permission of his vendee the dwelling apartments in the rear, was perhaps a question on the evidence. Defendant’s witnesses swore that he was in the store, and negotiated for the sale of it, after his alleged sale to Goodman. Upon the facts the court wo.uld have been justified in instructing the jury that there was no actual and continued change of possession, and that the sale was therefore presumptively fraudulent. Defendant claims that upon the evidence as to Fischel’s possession he was entitled to a dismissal of the complaint, and such was his motion at the close of the plaintiff’s case. The motion was properly denied, because the plaintiff had furnished evidence from which the jury might find that the sale by Fischel was made in good faith, and without any intent to defraud his creditors. 2 Bev. St. 136. Adolph Goodman explained that he permitted Fischel and his family to live in their apartments back of the store until they got another place. The sale was made on Saturday, with the privilege to remain over Sunday, “ or until Tuesday or Wednesday, or until he got another place.” One of defendant’s witnesses,—Kulla, —who was called to testify that he saw Fischel behind the counter, selling, as usual, on Sunday and Monday, when he went to collect a bill due him, was asked on cross-examination whether he had indemnified the marshal in this case, and if he knew that if the marshal had to pay he would be held responsible, to which he made an affirmative answer. Exception was taken by plaintiff to the allowance of these questions, but the ruling of the court was correct. The testimony went to a most important circumstance affecting the validity of plaintiff’s ownership, and the latter was entitled to show that the witness had a pecuniary interest in the result of the action, which ought to be considered by the jury in weighing his testimony. The judgment and order should be affirmed, with costs.

All concur.