text:
    Julius Bien et al., App’lts, v. Theodore Hellman, Impl’d, Resp’t.

      (New York Superior Court, General Term,

      Filed May 2, 1892.)

    Bill of pabticulabs—When should be denied.
    A bill of particulars of the contract and demand sued upon in an action, against alleged partners should not be ordered on the application of one of the defendants before answer where such defendant shows that he was not a partner of "the others or interested in their business; that he never had any dealings with plaintiffs, and that if the agreement was in writing with his signature it was a forgery.
    Appeal from an order of the special term directing service of a bill of particulars by the plaintiffs upon the defendant..

      Franklin Bien, for app’lts; George W. Seligman, for resp’t.
   Freedman, J.

The complaint is founded upon a theatrical contract alleged to have been made by the respondent and two other defendants as copartners in a certain theatrical business.

The particulars which were ordered to be furnished were as to

(a) The nature of the agreement sued on, whether oral or in writing;
(b) The nature and items of the theatrical printing and of the materials therefor alleged in the complaint to nave been furnished to the defendants, and of those alleged in the complaint to have "been delivered to the defendants ;
(c) The items of the credit of $1,115.50 to which the defendants are alleged in the complaint to be entitled.

The order having been made before answer, it was incumbenti upon the moving defendant to establish a necessity for the granting of the order at that stage of the litigation in order to enable him to prepare his answer to the complaint, which was for a certain balance due upon the alleged contract.

But the said defendant himself showed that he never was a partner of the co-defendants; that he never had any dealings with the plaintiffs; that he never was interested in business with the co-defendants in any way or manner, and that if there is any agreement in writing with his signature, it is a forgery.

Under these circumstances no necessity whatever existed for ordering the plaintiffs to furnish ■ a bill of particulars, for the defendant showed his ability to positively deny all the allegations of the complaint.

The order should be reversed, with ten dollars costs, etc.

Sedgwick, Ch. J., and McAdam, J., concur.


source: Caselaw Access Project

author: Per curiam.

license: Public Domain

text:
    Edward B. Kinsella, App’lt, v. The Second Avenue Railroad Co., Resp’t.

      (New York Superior Court, General Term,

      Filed May 2, 1892.)

    Depositions—Negligence—Examination oe plaintiff.
    An order for the examination of the plaintiff before trial in actions for _ personal injuries should be confined to questions as to the time and place " of the alleged accident and plaintiff's residence at that time.
    Appeal by plaintiff from an order denying the motion to vacate order for his examination before trial.

      Wales F. Severance, for app’lt; Jason Hinman, for resp’t.
   Per curiam.

The action is for damage from negligence. It is a delicate matter in this class of cases to grant an order of examination that will cover all the issues. If such an order should be granted in all cases, there would be great and unnecessary consumption of time and probably hardship to plaintiff. There should be a modification of the order appealed from, by which the examination should be confined to questions as to the time when and the place where the alleged accident occurred, and as to his residence at the time of the accident.

The order appealed from is modified. in the respects indicated, and as modified is affirmed, without costs.

Sedgwick, Ch. J., and McAdam, J., concur.


author: Per Curiam.

text:
    Prosper Monnet et al., App’lts, v. Henry Merz, Resp’t.

      (New York Superior Court, General Term,

      Filed May 2, 1892.)

    Factors—Counterclaim — Sums paid in compromise of government suit.
    A factor cannot offset in an action by his principal for an accounting a sum paid by him in compromise of a suit by the government for fraudulent undervaluation, where such compromise was made without authority of lTis principal.
    Appeal by plaintiff from judgment entered on report of referee.

      W. H. Arnoux, for app’lts; William Man, for resp’t.
   Per Curiam.

The action is virtually for an accounting between the plaintiff, a foreign consignor and the defendant, his consignee in this country. This appeal involves the correctness of a ruling, which charged the appellant with the sum of $6,126.09. That charge arose from the following facts : The plaintiff consigned certain goods to the defendant. After they had arrived in this country, the United States began a suit against the defendant to recover $75,000 under §§ 2839-2864, U.S. Rev. Stat., and § 16, act of June 22, 1874. On February 9, 1883, the United States accepted from the defendant an offer of compromise of $10,002.12 and discontinued the action. The respondent claims the amount paid in compromise should be charged to plaintiff. The claim is not valid for the reasons stated in Monnet v. Merz, 127 N. Y., 151; 38 St. Rep., 165, unless it appears by the evidence on this appeal that the plaintiff authorized or took part in the compromise.

The evidence does not show any authority from the plaintiff to compromise on joint account. A proposition to that effect made by the plaintiff to the defendant was refused by the latter. The offer did not thereafter continue. Nothing can be inferred, on this subject, unfavorable to the plaintiff from his omitting to answer concerning the suit, for as to that he had no obligation. The telegram, “We refuse customhouse compromise of 70,000 frs.,” as there was but one compromise in a suit claiming 75,000 frs., clearly referred to the compromise for $10,000. The defendant failed to establish that the plaintiff authorized or was a party to the compromise.

The referee charged the plaintiff with one-half of the amount of the compromise. This was not valid, and the plaintiff’s appeal should prevail. The appeal is only from the judgment so far as that is affected by the charge that has been examined.

The judgment, therefore, should be reversed as to such matter and a new trial ordered, with costs to abide the event, and the order of reference vacated.

Sedgwick, Ch. J., Freedman and McAdam, JJ., concur.


text:
    Mary Collins, App’lt, v. The Long Island Railroad Co., Resp’t.

      (New York Superior Court, General Term,

      Filed May 2, 1892.)

    Negligence—Charge—Joint negligence oe driver and railroad.
    In an action for injuries received at a railroad crossing, caused by a collision between a train and a hired carriage in which plaintiff was riding, where the facts were such that the jury might find that the railroad and the driver were jointly negligent, it is error for the court to refuse to submit the question of joint negligence, and to leave the jury to determine whether the railroad itself or the driver was negligent.

      Appeal by plaintiff from judgment for defendant entered on verdict and from order denying motion for new trial made upon the judge’s minutes.

      E. C. James and P. G. Gedney, for app’lt; E. B. Hinsdale, for resp’t.
   Per Curiam.

The action was for damages from the alleged negligence of defendants. The plaintiff was in a carriage, hired at a livery stable and driven by a man from that stable. The driver was proceeding to cross the defendants’ railroad when a train was approaching. The carriage was on the track when the train struck it. The plaintiff was thereby hurt. On the trial the plaintiff’s counsel asked the court to charge the jury, that if the negligence of the defendant contributed to cause the injury, then it is no excuse to the defendant that the driver may have been negligent. The court recognized the principle of law involved in the proposition, yet believed it to be inapplicable to the facts of the case. “ I think in this case the controlling question is, was this the negligence of Burke the driver or was it the negligence of the railroad.”

It seems from the facts as they appear on the appeal, that the jury might have found that both the driver and the railroad were jointly negligent. It was admitted on the trial that the negligence of the driver could not be imputed to the plaintiff This question of joint negligence was not sent to the jury. They were only asked if the railroad by itself was negligent or if the driver by himself were negligent. The plaintiff did not have the benefit of a finding from the jury whether each was partly negligent, and therefore both jointly negligent. For this reason there should be a new trial.

Judgment reversed, new trial ordered, with costs to appellant to abide the event.

Sedgwick, CL J., and Freedman, J., concur.


author: McAdam, J.

text:
    Leopold Adler, Resp’t, v. The Metropolitan Elevated Railway Co. et al., App’lts.

      (New York Superior Court, General Term,

      Filed May 2, 1892.)

    1. Railroad—Elevated—Stations.
    An elevated railroad must keep the whole and every part of its structures of whatever nature within the lines of the route designated. Where it builds its station so as to project two feet beyond the line into a side street without some grant authorizing it, the court may properly direct the removal of the portion so projecting.
    2. Maxims—De minimis non curat lex.
    The maxim, “de minimis non curat lex,” is never applied to a positive and wrongful invasion of another’s property.
    Appeal by the defendants from a judgment entered at equity term, awarding the plaintiff $1,250 damages, and restraining the defendants from the further operation of their road in front of 'the plaintiff’s premises No. 132 First avenue, unless within a time fixed by the decree they pay to the plaintiff the sum of $5,000 adjudged to be the value of the easements taken, and directing the removal of such portion of their station as extends into Eighth street

      Davies & Rapallo and B. Tolles, for app’lts; C. P. & J. A. B. Cowles, for resp’t
   McAdam, J.

The evidence satisfactorily sustains the findings of the court below both as to past damages and value of the easements. The only question requiring special mention arises on the part of the judgment which requires the defendants to remove that portion of their structure or station which projects into Eighth street

The plaintiff does not dispute the right of the Metropolitan Elevated Railway Company to build and maintain stations along its established route. The legislature has given it this authority, and in any event it would seem to follow by necessary implication. But he insists that the defendant can exercise only such power as the legislature has given it; that when the route is designated, this means that the corporation must keep the whole and every part of its structure, of whatever nature the same may be, within the confines of the line, and that although stations, sidings and switches may be constructed on the roadway, they cannot be built off such route.

' The plaintiff is correct in his contention. The railway company has no right whatever to appropriate public streets or highways to its use without legislative sanction, and even then is bound to make compensation to the abutting owners for any injury done to their property by reason of any interference which its structure may cause to their easements of light, air or access, or any depreciation in fee or rental value resulting from the operation of its road. The onus was, therefore, upon the railway company to show some grant which permitted it to diverge from the line of its route into Eighth street, and erect a station projecting two feet beyond the easterly line of First avenue. No such permission was shown, and that portion of the structure must, therefore, be assumed to have been built and maintained without the semblance of right (not as a temporary privilege, but. permanent erection), and the court below properly directed its removal. This accords with the decision of Judge O’Brien in dismissing condemnation proceedings affecting the same property. N. Y. Supreme Ct., N. Y. Law J., Jan, 26, 1891, p. 1024. In the construction of grants of franchises such grants are generally construed most favorably to the public and most strongly against the grantee; nothing as a rule passes except what is expressed in unequivocal language. Langdon v. The Mayor, 93 N. Y., 129, 147; Syracuse W. Co. v. City of Syracuse, 116 id., 167, 178; 26 St. Rep., 364. Applying this rule, it follows that as Eighth street is not included in the route designated by the rapid transit commissioners, and was not essential to the enjoyment of the franchise, it is to be regarded as excluded. There is room for no other implication. The defendants urge that the interference with the public right in Eighth street is too trivial to be made the basis of a judgment for removal, on the principle of de minimis non curat lex. This maxim is never applied to the positive and wrongful invasion of another’s property. The degree is wholly immaterial. Seneca R. Co. v. A. & B. R. R. Co., 5 Hill, 175. Two feet of land in a thickly populated portion of a city is not so trifling as to deny the injured party the legal remedies necessary or proper for asserting the right of property thereto or to redress any trespass thereon.

We find no error, and the judgment appealed from must be affirmed, with costs.

Freedman, J., concurs.


author: Davy, J.

text:
    The People ex rel. George A. Benton, District Attorney, v. The Court of Sessions of Monroe County.

      (Supreme Court, Special Term, Monroe County,

      Filed July, 1892.)

    Criminal law—Courts have no power to suspend sentence after plea OF GUILTY.
    A court has no power, after a plea of guilty is accepted, to suspend sentence during good behavior or indefinitely. The law requiring judges to impose sentence upon persons legally convicted of a crime is mandatory, and where they refuse to perform that duty, they may be compelled to do so by mandamus.

    Application for writ of mandamus requiring the court of sessions to cause a defendant who pleaded guilty to be brought before it and to impose such sentence as is required by law.

      George A. Benton, district attorney, for relator; H. B. Hallock, for resp’t.
   Davy, J.

It appears from the relator’s petition presented upon this application that John Attridge of the city of Rochester, who was in the employ of Brewster, Crittenden & Company as salesman and collector, wrongfully appropriated to his own use nearly two thousand dollars of the firm’s money, for which crime he was indicted by the grand jury of Monroe county in January, 1892, for grand larceny in the second degree. The indictment was sent from the oyer and terminer to the court of sessions of Monroe county, where Attridge was arraigned and plead guilty, and was sentenced by Judge Werner, the presiding judge of said court, to be confined in the Elmira reformatory until discharged according to law. From this sentence the two justices of the sessions, Fuller and Colby, dissented, holding that sentence should be suspended. Attridge was then remanded to the custody of the sheriff and subsequently taken, upon a writ of habeas corpus, before Mr. J ustice Adams, who held that the sentence imposed by Judge Werner and dissented to by his associates was illegal, and for that reason the defendant must be remanded to the custody of the sheriff in order that the court of sessions might pronounce a legal sentence. Thereafter and on the 14th day of March, Attridge appeared in the court of sessions, and the district attorney again moved that he be sentenced.

Thereupon, Justices Fuller and Colby announced as their decision that “ sentence is suspended during the good behavior of the defendant,” Judge Werner dissenting. The return, which is signed by the two justices of the sessions, admits all the facts alleged in the petition. Their excuse, however, for suspending sentence is, that when the defendant plead g'uilty there was presented to the court a petition signed by a large number of prominent citizens of Rochester, requesting that sentence be suspended for the reason that the defendant had made good his defalcation ; that he was a young man who had always maintained a good character up to the time of committing the crime for which he was indicted, and that by suspending sentence it would, probably result in his becoming a good and useful citizen; that in suspending sentence they exercised a discretion which they supposed was vested in the court, and that they acted in accordance with the practice and custom of said court since they had been members thereof. Application is now made to this court by the district attorney for a peremptory writ of mandamus requiring the court of sessions to cause the defendant, Attridge, to be brought before it and to impose such sentence upon him as is required by law. So that the principal question to be considered and decided upon this application ‘ is whether the court of sessions of the county of Monroe had power to suspend sentence in Attridge’s case during his good behavior; or, in other words, whether the court failed to perform its duty, as required by law, in suspending sentence.

From the statute law's of this state the criminal courts derive their authority and power to prosecute criminals. The Code of Criminal Procedure prescribes the method of conducting trials in criminal actions prosecuted by indictment. The legislature, in adopting this code, intended to establish a complete system of criminal practice. It provides what proceedings may be taken by the defendant, both before and after indictment. It also provides upon what grounds a motion may be made by the defendant in arrest of judgment. Sections 312, 313, 328, 329, 332.

The Penal Code directs what punishment shall be imposed by the court whenever a person is convicted or pleads guilty to a crime for which he has been indicted.

A motion in arrest of judgment is defined by the Code of Criminal Procedure, § 467, to be an application on the part of the defendant that no'judgment be rendered on a plea or verdict of guilty. This application, however, must be made for some defect which appears on the face of the record, People v. Kelly, 94 N. Y., 526, or on the ground that the defendant has become insane since he was convicted. Sec. 481.

The court in which a criminal trial has been bad has also ample authority to grant a new trial when- a verdict has been rendered against a person by which his substantial rights in some way have been prej udiced. Code of Criminal Procedure, § 465.

After a plea or verdict of guilty, if the judgment is not arrested or a new trial granted, the court must appoint a time for pronouncing judgment Id., § 471.

The time appointed must be at least two days after the verdict, if the court intend to remain in session so long, or if not, as remote a time as can reasonably be allowed. Id., § 472.

At the time appointed, if no sufficient cause be alleged or appear to the court why judgment should not be' pronounced, it must thereupon be rendered. Id., § 482.

A judgment in a criminal court upon conviction or a plea of guilty is the sentence of the court.

Folger, J., in the case of Manke v. People, 74 N. Y., 415, says: “The sentence given by the court upon a conviction in a criminal case is the final judgment.”

Section 12 of the Penal Code also declares that the several sections of that Code which declare certain crimes to be punishable as therein mentioned devolve a duty upon the court authorized to pass sentence to determine and impose the punishment prescribed by law.

The very language of the above sections shows that the legislature meant to impose a positive and absolute duty upon the criminal courts of this state to pass sentence after a person was legally convicted of a crime unless sentence was stayed for sufficient cause authorized by law.

The application in this case to suspend sentence or for an arrest of judgment was not based upon any grounds authorized by the Code. The regularity of the proceedings was not questioned. So that when the defendant plead guilty there was nothing remaining for the court to do except to pronounce sentence.

There is sufficient power in the executive branch of the state government to prevent punishment where punishment ought not to be inflicted. But the courts are not vested with any such power. The constitution of the state of New York vests the pardoning power exclusively in the governor.

Article 4, § 5, provides that the governor shall have the power to grant reprieves and pardons after conviction for offenses, except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as he may think proper.

A pardon is defined by Chief Justice Marshall “ as an act of grace proceeding from the power intrusted with the execution of the laws which exempts the individual on whom it is bestowed from the punishment the law inflicts for the crime he has committed.” U. S. v. Wilson, 7 Peters, 160.

“Punishment,” says Mr. Wharton in his Law Lexicon, “ is the penalty for the transgression of the law.”

What the court did in this case was an act of grace which exempted the defendant from punishment during good behavior. It is contrary to the spirit of our constitution and laws for courts to permit a person who has been convicted of a crime to enjoy privileges and advantages which are denied to others under like circumstances, or that one person should be subject to punishment for a crime and others who have committed similar crimes should be exempt from punishment, during good behavior, because they happen to have influential friends to intercede for them. The object in punishing criminals is, not merely to reform them, but to deter them and others from committing like offenses and to protect society. When the legislature prescribed the punishment that must be when a is convicted of a crime, it had in view the well-being, good order and security of the community.

When a party pleads guilty or stands convicted of a crime and all the remedies provided by law for testing the correctness of the conviction have been exhausted or waived, it then becomes the duty of the court to pronounce sentence, and in doing so to exercise such discretion as to the extent of the punishment as the statute authorizes the court to exercise in such cases. It is no doubt competent, under the Code of Criminal Procedure,' for a court, after conviction, to suspend judgment temporarily to permit the defendant to move for a new trial or to perfect an appeal or to allow the court time to consider and determine the sentence to be imposed, or for any other reason authorized by law. People v. Morrisette, 20 How. Pr., 118; People v. Reilly, 53 Mich., 260; People v. Brown, 19 H. W. Rep., 571.

It was not a suspension of judgment authorized by the Code that was requested or desired by the defendant or his friends. What was asked of the judges was, that the sentence to be imposed, as required by law, should be suspended, and that the defendant should be discharged during his good behavior. If such power can be exercised by a court it incorporates into our administration of criminal justice a very uncertain system and one which places the criminal who has been convicted or pleads guilty to a crime at the caprice of a judge who may permit him to go at large, but subject to being called up for sentence at any time in his discretion.

If a court can suspend sentence during good behavior in a case of grand larceny, why may it not in a case of murder ? If it can delay sentence for six months or a year, I do not see why it may not be delayed for twenty years. To sanction the exercise of such power under our form of government and under our system of criminal jurisprudence would be revolting to our sense of justice. The law requiring courts to pronounce sentence in a proper case is mandatory. This imperative duty is imposed upon the court for the protection of the public and to prevent a failure of justice, and when the justices of the session in this case refused to sentence the defendant, they failed to do what the law plainly required them to do.

The learned counsel for the defendant contends that it has been customary for the courts to suspend sentence in certain cases during good behavior from the earliest history of jurisprudence in England and in this country down to the present time. Conceding that statement to be true, I am not aware, however, that custom can abrogate or annul a statute law which requires the courts to impose sentence where a person has been legally convicted of a crime. The mere fact that courts have been in the habit of suspending sentence in certain criminal cases does not establish their legal right to do so.

It was held in the case of Rex v. The Mayor and Corporation of Wells, 4 Dowl. P. R., 562, that when a charter is granted by an act of parliament to a corporation to hold a court for the trial of causes, the disuse of the court for two hundred years and the want of funds to hold it was no answer on application for mandamus commanding them to hold it.

Patteson, J., in granting the writ, says: “I do not think I have any discretion on the subject. Power to hold this court being granted by charter, I do not think the corporation can lay it aside merely on the ground of want of funds, nor on the ground that no court has been held for two hundred years.”

In the case of the King v. Mayor of Hastings, 1 D. & R., 148, a similar question arose. The court held that words of permission in act of parliament, if tending to promote the public benefit, are always held to be compulsory.

Whenever the law requires a thing to be done and the public at large are interested in the doing of it, a mandamus will lie to compel the. performance of that act. The criminal courts of this state are the people’s courts, who have a right to insist that such courts, in the trial, conviction and sentence of criminals, shall comply with the law, instead of custom. The law requiring judges, to impose sentence upon persons legally convicted of a crime is mandatory, and where they refuse to perform that duty a writ of mandamus is the proper remedy to compel performance.

The application for a peremptory writ of mandamus, requiring the court of sessions of Monroe county to cause the defendant to be brought before it and to impose such sentence as is required by law, is granted.


author: McCarthy, J.

text:
    Emily Cortice Marvin, Pl’ff, v. James H. Marvin, Def’t.

      (City Court of New York, General Term,

      Filed May 25, 1892.)

    1. Attorneys—Lien—Assignment of judgment.
    An attorney has a lien for his services upon a judgment obtained by him and the proceeds thereof, of which he cannot be deprived by an assignment of the judgment by his client. The assignees are put on inquiiy by the fact that the attorney’s name appears upon the judgment and its docket, and no actual notice of the lien to them is necessary.
    2. Same.
    The assignees cannot claim that the judgment is fraudulent to defeat the attorney’s lien, while claiming the proceeds thereof themselves.
    Appeal by plaintiff’s attorney from order denying motion for an order directing the sheriff to pay to him out of the proceeds of an execution an amount, claimed by him for services in the action.

      C. H. Preyer, app’lt in person; Johnston & Johnston, for resp’ts.
   McCarthy, J.

This is an appeal from an order denying a motion for an order directing the sheriff to pay to the attorney for the plaintiff the sum of one hundred and three 89-100 ($103.39) dollars, the amount claimed by the said attorney for his fees and compensation for services rendered in the above entitled action, out of the moneys realized upon execution issued herein.

Judgment was obtained in favor of plaintiff against the above named defendant, on the 10th day of February, 1892, for the sum of eight hundred and sixteen 72-100 ($816.72) dollars, and executian immediately issued by Charles H. Preyer, plaintiff’s attorney, to the sheriff of the city and county of New York.

Under said execution levy was made, and after levy, the said judgment was assigned by the plaintiff to Fishel, Adler and Schwartz, (the respondents herein) for the nominal consideration of one (1) dollar.

The plaintiff’s attorney had no knowledge or intimation of the proposed assignment, and the said assignment was made without his knowledge or consent

The said execution was fully satisfied, and the sum of eight hundred and sixteen and 72-100 ($816.72) dollars is now in the hands of the sheriff, abiding the determination of the claim of the plaintiff’s attorney for compensation for his services.

The compensation of the attorney for his services, by arrangement with the plaintiff, at the time of the institution of the action, amounts to the sum of one hundred and three and 39-100 ($103.39) dollars; which sum is a reasonable charge. The reasonableness of the charge is not disputed. The assignees of the judgment, however, contend that the fund is only chargeable with the taxable costs, and that this action was brought upon a fictitious claim, and is fraudulent and void; nevertheless, they are claiming the proceeds of said judgment by virtue of the assignment. There is no allegation that the attorney was conversant with any fraud.

The learned justice at special term granted the motion to the extent only of directing the sheriff to pay plaintiff’s attorney the costs as taxed, to wit: twenty-one and 72-100 ($21.72) dollars.

From this order both plaintiff and her attorney appeal.

Section 66 (amended 1879), “ The compensation of an attorney or counsellor for his services is governed by agreement, express or implied, which is not restrained by law. ■

“ From the commencement of an action or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client’s cause of. action or counterclaim, which attaches to a verdict, report, decision, or judgment in his client’s favor, and the proceeds thereof in whosoever hands they may come; and cannot be affected by any settlement between the parties before or after judgment.”

In arriving at a proper conclusion, we must keep in mind that the contention here is not a settlement of the case between the parties before or after judgment, and thus the termination of the controversy by a settlement of the claim or a satisfaction of the judgment, but the assignment by the plaintiff for a consideration of one dollar ($1.00) expressed in the instrument to Fishel, Adler and Schwartz, none of whom are parties to the judgment, but third parties and strangers to the plaintiff’s attorney who secured the judgment and issued the execution to the sheriff.

Thus the judgment was not settled, satisfied or cancelled, but simply transferred or handed over to Fishel, Adler and Schwartz, subject to any and all liens and equities which may exist.

In other words, all the plaintiff could transfer would be her right, title and interest in such judgment.

The judgment has not been paid over, satisfied or cancelled^ but being alive and existing, it matters not whether it be in the hands of the plaintiff or transferred to any one else, the attorney’s lien must necessarily follow and attach.

For in the language of § 66, Code of Civil Procedure, it attaches to a judgment in his client's favor and the proceeds thereof in whosoever hands they may come.

In the case at bar, the judgment has come (no matter how) into the hands of Fishel, Adler & Schwartz, the respondents herein, and the proceeds are in the hands of the sheriff of the city and county of New York, an officer of the court, and therefore subject to its direction.

It would be folly to say that by the mere handing over the judgment unpaid, unsettled and unsatisfied, or uncancelled to a third party the plaintiff’s attorney would be deprived of the lien already fixed and agreed upon between the plaintiff and such attorney; nor of the proceeds of such judgment which had been acquired by the diligence and effort of this attorney. This would be the plainest kind of fraud and the easiest way of encouraging it.

No claim can be made that the attorney should have given notice to these respondents. They were not parties to the action nor interested in it until after judgment, execution and levy had been made ; they were perfect strangers to the record and to the plaintiff’s attorney. How could the plaintiff’s attorney know the operations of his client’s mind from time to time or to whom or in what manner she would dispose of the judgment. It was sufficient for him that she and he understood each other as to his lien and the amount of the same. Being a woman (it is said they are changeable) she might notify him every day of a different intention and different person, which would require under such an absurd rule a notice in every case. Neither law nor logic can sanction such a proposition.

No. The judgment, its entry and docketing, the execution in the hands of the sheriff, all must have contained the name of the plaintiff’s attorney, and thus even after the assignment put the respondents on the inquiry. If they proceeded before assignment or after without doing this, they took at their peril and subject to all its imperfections. As for instance, supposing a judgment obtained by default and afterwards assigned was thereafter vacated and set aside, and the default opened, could it be said the assignee did not take it subject to all its imperfections and equities.

Besides the statute fixes the position of the plaintiff's attorney and these respondents as to each other. Section 66, Code of Civil Procedure, attaches to a judgment in his client’s favor and the proceeds thereof in whosoever bands they may come. The judgment when entered and perfected was in his client’s favor and belonged to her, and even up to some time after the levy.

Respondents may claim their having no knowledge of the attorney’s lien or the law in regard thereto, but ignorance of the law is no excuse.

The sale or transfer of the judgment (for the lien attaches to the judgment) did not alter its character, the amount of the same, nor the method or process of collecting it. It was all the time the same judgment and between the same parties, and it was not settled between the parties to it, the sheriff successfully collected it under his execution.

The respondents cannot now after accepting this assignment claim that the judgment is fraudulent and yet come into court and ask that the proceeds shall be paid over to them. If it is a good and valid judgment as to them, it must be so for all purposes. Besides, if it was obtained by fraud there is no proof of collusion on the part of the plaintiff’s attorney, in the same.

No notice was necessary to be given to the judgment debtor. There was no settlement between the parties; the amount of - the judgment was collected out of the property of the judgment debtor by the sheriff under due process of law; but sufficient notice of the attorney's lien has been given to these respondents. It was while the proceeds were in the hands of the sheriff: or in other words, while the proceeds are in transitu. Payment of the judgment to any other person would be of no avail against him and he would be entitled to enforce it for the amount of his lien.

The authorities, the logic and the equities of the case are clearly in favor of sustaining the attorney’s lien.

We have carefully examined all the authorities cited by the respondents, and do not think they apply to the question at issue herein.

For these reasons the order appealed from should be reversed, with costs and disbursements to be paid out of the funds in the hands of the sheriff and realized under the execution issued herein, and the motion of plaintiff’s attorney that the sheriff be directed to pay to the attorney of the plaintiff herein the amount of his lien for costs and óompensation agreed upon, to wit: the sum of one hundred and three and 39-100 dollars, ($103.39), out of the moneys realized on said execution, is hereby granted, but without costs of said motion.

McGown, J., concurs.


text:
    Simon Rothschild et al., Resp’ts, v. Charles C. Porter, App’lt.

      (City Court of New York, General Term,

      Filed May 25, 1892.)

    1. Pleading—Denial.
    A denial of any knowledge or information sufficient to form a belief as to an allegation of the complaint, using the words of said allegation, is a denial of said allegation and does not admit any part thereof.
    2. False representations—Evidence.
    In an action for false representations by which defendant procured goods on credit upon a written order of a traveling salesman, it is error to admit testimony of the credit man of plaintiSs as to the sale and delivery of the goods, based upon said order, which was not produced, and the firm’s ledger, which was not a book of original entries, nor kept by him nor in his handwriting.
    3. Same—Charge—Scienter.
    In such an action it is error for the court to refuse to submit to the jury the question of scienter and fraudulent intent.

      Appeal from judgment in favor of plaintiffs, entered upon verdict, and from order denying motion to set aside the verdict and for a new trial.

      Gruber & Landon, for app’lt; Townsend, Dyett & Einstein, for resp’ts.
   McCarthy, J.

This action was brought to recover the sum of one thousand and seventy-four and 50-100 ($1,074.50) dollars, with interest from October 1, 1889.

It was claimed in the complaint that plaintiffs had been damnified to this amount by reason of their having sold and delivered to defendant goods, wares and merchandise in reliance upon the representations of the latter, that on July 20, 1889, his indebtedness was about $2,500 and his assets were about $16,000, which said representations had proven to be false, inasmuch as at the time such indebtedness was over $6,000 and such assets much less than $16,000, and that the defendant had made the said representations with the intent to defraud the plaintiffs.

The above allegations were denied by the answer. The trial was had before a justice and a jury on the 8th day of January, 1892.

A verdict was rendered in favor of the plaintiffs for $1,220.63, which was the sum demanded in the complaint, with interest thereon.

This appeal is taken from the judgment subsequently entered for the sum of $1,397.40, and also from an order of the said justice denying the defendant’s motion to set aside the verdict and for a new trial.

Upon the trial only one witness testified. He was Frank Rothschild, Jr., a credit man of plaintiffs, who was called in their behalf.

It appears by the evidence adduced that between February 27th and April 10th, 1889, the plaintiffs sold to Ridley & Porter, of Louisville, goods to the amount of $517.59, which were paid for. These goods were not sold upon any personal representations of the defendant, but upon information which plaintiffs received from Dun’s and Bradstreet’s mercantile agencies, and various merchants, including Armstrong, Gator & Company, of Baltimore.

It was sought to be proved that afterwards the plaintiffs had a correspondence with defendant, consisting of three letters, two of which were alleged to have been written by plaintiffs on July 8th and 16th, 1889, respectively, and one to have been written by the defendant on July 20th, in answer to the plaintiffs’ letter of the 16th.

The contents of the alleged letter of July 8th were not disclosed in evidence, and the defense admitted that it was unknown to them whether the letter alleged to have been written by defendant on July 20th was in answer to the plaintiffs’ letter of July 8th or July 16 th.

The whole case of the plaintiffs rested upon proving a false and fraudulent statement of material fact in the letter of July 20th, followed by a sale and delivery of goods to defendant in October, 1889.

It did not appear that the postscript of the letter was false, nor that the statement that defendant, during the season, owed as high as ten and twelve thousand dollars was false, nor that any part of the truth of the letter was questioned, except the statement reading as follows: “My indebtedness is about $2,500, due to different millinery jobbers.” The only evidence offered on the falsity of this statement was the testimony of Rothschild’s credit man to a conversation purporting to have been had between him and defendant on or about the 25th day of October, 1889, when it was claimed defendant admitted that the said statement was untrue.

It is contended by appellant that there was no false representation or fraudulent intent on the part of defendant.

It is further contended that there was no competent proof of a sale and delivery of goods in reliance upon whatever representations, if any, were made.

It was also contended on this appeal by the respondent that by the answer the sale and delivery of the goods was admitted.

The answer is as follows:

The defendant in the above entitled action, for answer to the complaint of the plaintiffs therein,
First Denies that he has any knowledge or information sufficient to form a belief as to the allegation that the plaintiffs were at the times mentioned in the complaint, and still are, partners in business in the city of New York under the firm name of S. Rothschild & Bro.
Second. Denies that he has any knowledge or information suf-' ficient to form a belief as to the allegation that on July 20, 1889, he, the defendant, for the purpose of inducing the plaintiffs to sell goods to him on credit, represented to the plaintiffs in writing that his indebtedness at that time was about twenty-five hundred dollars and that his assets were about sixteen thousand dollars.
Third. Denies that he has any knowledge or information sufficient to form a belief as to the allegation that the plaintiffs, believing the said representations to be true, and relying thereon, sold and delivered to the defendant on credit, goods, wares and merchandise amounting in the aggregate to one thousand and seventy-four dollars and fifty cents, no part of which has been paid.
Fourth. Denies that he has any knowledge or information sufficient to form a belief as to the allegations that as plaintiffs are informed, believe and aver, the said representations were false, that the defendant was indebted at the time he made the said representations in a sum not exceeding six thousand dollars, and that his assets were much less than sixteen thousand dollars, and defendant denies that he made the said or any representations with the intent to defraud the plaintiffs, and defendant alleges in this behalf, that whatever representations were made by him to plaintiffs on or about July 20, 1889, or on any other date mentioned in the complaint herein, if any representations were made on such dates, were true.
Fifth. Denies the allegations of the complaint that by reason of the matters aforesaid the plaintiffs have been damaged to the extent of one thousand and seventy-four dollars and fifty cents.
Sixth. Denies that the plaintiffs have ever been "damaged by reason of .any acts or representations of defendant, in any sum. whatsoever.
Seventh. Denies each and every allegation in said complaint contained not hereinbefore specifically denied or admitted.

Wherefore defendant demands judgment against the plaintiffs that the complaint herein.be dismissed, together with the costs of this action.

Gruber, Bard & Landon,
Atiy's for Defendant.
Office and post office address No. 41 Park Row, New York city.

We think that the third denial was a deiiial of the third allegation in the complaint repeating the whole thereof, and did not by terms or inference admit any part thereof.

And that the seventh denial, being as follows: Denies each and every allegation in said complaint contained not heretofore specifically denied or admitted,” is a good denial and puts the plaintiffs to the proof of the sale and delivery of the goods in order to prove their damage. See Griffin v. Long Island Railroad Co., 101 N. Y.. 348, 354; 1 St. Rep., 56. But whether this be correct or not the plaintiffs evidently tried the cause on the assumption that the answer was sufficient and it was necessary for them to prove the sale and delivery of the goods.

The goods were conceded by the plaintiffs to have been sold in Louisville, Kentucky, not by witness, nor was he present, nor were they delivered or shipped by him to the defendant.

His position in the plaintiff’s business was that of office man, attending to the credits, collections and correspondence.

The only evidence attempted on this branch is as follows : Q. I will come now to the selling by your firm of these goods in question ; have you the order that was sent to you by the defendant ? A. It was a salesman’s order.

Continuing the witness said: I have not it here, but I have my ledger, which contains the account; I know of the shipment of these go.ods to Mr. Porter; I check every dollar’s worth of goods that is shipped from our house; I checked these goods myself; there are no goods shipped from the house without my sanction.”

Q. Do you know the amount ? Objected to. Objection sustained.

Continuing the witness said : I can easily prove the shipments by duplicate shipping receipts. Bills were mailed to the defendant.”

By defendant’s counsel: Q. Did you mail them to him ? A. No, sir; when I check bills in our establishment, I don’t go down to see the goods sent away; you know I do not; yes, I do know whether such goods are ever actually shipped after I sign the bills; I know of my own knowledge that these goods were shipped.

Q. Then you do not know of your own knowledge that they were shipped ? A. Yes, sir, I do.

Q. How do you know, of your own knowledge, of something you did not personally see ? A. Because I have shipping tickets which I checked.

Q. That is before the goods were shipped ? A. Upon the day of the shipping of the goods.

Q. But this was before the goods were shipped? A. Yes, sir.

Q. You didn’t see these goods put in boxes for Mr. Porter ? A. Ho, sir.

Q. Therefore, you didn’t see them shipped? A. Ho, but I knew that they were shipped, although I did not see them shipped.

Q. Didn’t this statement which you received from Mr. Porter, plaintiffs’ Exhibit Ho. 1, strike you as being somewhat indefinite ? A. I cannot tell you how much it struck me.

Q. When a man says he owes about $2,500, do you understand that as just about $2,500 ? A. Ho, not exactly; it might be for instance $2,510. Defendant’s counsel moves to strike out $2,510 as not responsive. Motion granted. Re-direct examination by Mr. Einstein:

Q. Refer once more to the ledger account of Mr. Porter (presenting book); do you recpllect what you are asked by counsel on the other side in relation to that account; you are asked as to the spring purchases; does the ledger account show that there were any fall purchases ? Objected to on the ground that the ledger is not evidence against the defendant; that it is incompetent, and that the sale and delivery of the goods cannot be proven in any such way. Objection overruled. Exception. A. Yes, sir.

Q. What does it show as to fall purchases; read the entries there ? Same objection as above, and ruling and exception. A. “ August 31st, to merchandise Hovember 1, five off, thirty days, folio 1158, sale book, $789.’” “ September 18, same items on sales book, folio 1229, $181.” “ September 25, same items, folio 1250m. sales book, $72.50.” “ Oct. 1st, same items in another sales book, folio 453, $32.”

Q. Do you know the total of these items ? A. $1,074.50.

Q. Were these merchandise that you sold him after the receipt of this letter of July 20th? Objected to as not being the proper way to prove the sale of the goods. Objection overruled. Exception. A. Yes, sir.

Continuing, the witness said : “ These goods- were sold to him on credit, five off, thirty days. . Ho part of that sum has been paid to me. In making those sales, the letter of July 20th had the effect upon my mind of causing me to ship the goods.”

Q. Is there anything in this reference book which has not been read, please read it ? A. I want to say to the jury that I was not influenced by Messrs. Armstrong & Cator’s information. I will omit the names.

Defendant’s counsel objects.

This was error, as the information was mere hearsay gained from a written order not produced at the trial and taken by a salesman who is not present.

Neither was this ledger a book of original entry nor was it kept by the witness nor in his handwriting. The permitting of the witness to make such entries evidence for any purpose of the transactions in this action was, we think, error. Ives v. Waters, 30 Hun, 297, 298; Beatty v. Clark, 44 id., 127; 8 St. Rep., 423; Vilmar v. Schall, 35 Supr. Ct. (J. & S.), 67; Dooley v. Moan, 57 Hun, 535; 33 St. Rep., 118.

At the close of the judge’s charge, which up to that point we think correct, he was requested by defendant’s counsel to charge as follows:

Third. The fact that the representations Were false is not sufficient to enable the plaintiffs to recover in this case.
The Court—I decline to so charge. '
Exception.

This was error, for it was at once directing the jury to disregard the previous portion, of- his charge in respect to the essentials required and to say to them “ that the fact that the representations were false is sufficient.”

As an evidence that this refusal to charge must have had some effect on the minds of the jury, they after retiring to their room sent the following message to the court and which was read to counsel for plaintiffs and defendant.

“ Can we bring in a verdict for the plaintiffs for the full amount, with interest, and exonerate the defendant from fraudulent intent? Plaintiffs’ counsel: It is not a matter for the jury to determine; it is their duty to find a verdict one way or the other.

“ The Court: I will send in this answer. No, you are simply to determine whether the defendant was guilty of having made false and fraudulent representations to the plaintiffs upon the faith of which they sold the goods in question.”

Defendant’s counsel excepts.

This instruction to the jury was again error.

Andrews, J., in Brackett v. Griswold, 112 N. Y., 467; 21 St. Rep., 791, says:

There is no doubt or question as to what elements are requisite to-sustain an action for false pretences.
The essential constituents of such an action have been understood from the time such actions were first maintained. They are tersely stated by Church, Ch. J., in Arthur v. Griswold, supra, viz." Representation, falsity, scienter, deception and injury.’
There must have been a false representation known to be such, made by the defendant, calculated and intended to influence theplaintijf, and which came to his knowledge, and in reliance -upon which he, in-good faith, parted with property or incurred the obligation which occasioned the injury of which he complains.
“All these circumstances must'be found to exist, and the absence of any one of them is fatal to a recovery." See Arthur v. Griswold, 55 N. Y., 400; Macullar v. McKinley, 99 id., 357, 358; Coffin v. Hollister, 124 id., 644; 36 St. Rep., 271.

The refusal to submit to the jury the scienter and fraudulent intent was erroneous. See Stitt v. Little, 63 N. Y., 427, 431.

For these reasons the judgment should be reversed and a new trial granted, with costs to abide the event.

McGown, J., concurs.


author: McGown, J.

text:
    Edward Duffy, App’lt, v. John Dawson, Def’t. Cornelius H. Evans et al., Resp’ts, v. John Dawson, Def’t.

      (City Court of New York, General Term,

      Filed May 25, 1892.)

    Execution—Pbiobity—Rights of cbeditob who institutes suppleMENTABY PBOCEEDINGS.
    Defendant gave to E. an order on a person with, whom funds were deposited, which was not accepted, and thereafter a judgment was recovered by E. and execution issued. Some days later D. recovered judgment, issued execution and procured an order under § 2441 of the Code for the examination of the depositary, who was ordered to pay the fund to the sheriff. Held, that D., by taking such proceedings, became entitled to a lien on said fund superior to that of E., and that the court had power to direct the sheriff to pay the same upon his execution.
    Appeal from that portion of an order, made on the 17th day of March, 1892, in above entitled actions, by Justice Newburger, denying a motion, and in which “It is ordered, that the said motion of the plaintiff Duffy for an order directing the sheriff of the city * * * of New York, to pay over to him the sum of $400, paid to said sheriff by Henry C. L. Peetsch pursuant to the above mentioned order, on the execution delivered to him by the said Edward Duffy upon his judgment against John Dawson for the sum of $540.84 on February 2, 1892, be and it is in all respects denied.”

      Johnston & Johnston, for pl’ff and app’lt; A. Edward Woodruff, for pl’ffs Evans, resp’ts.
   McGown, J.

A judgment was recovered on February 2, 1892, by the plaintiff Duffy against the defendant Dawson, in the first above entitled action, for the sum of $540.84, and an execution upon said judgment was issued on the same day to the sheriff of the city and county of New York. On February 3, 1892, an order was made by Justice McGown for the examination of Henry C. L. Peetsch, as a third party, indebted to the said judgment debtor, under § 2441 of the Code, which examination was made before said last mentioned justice; whereby it appears that the said Peetsch had in his hands on the 9th day of January, 1892, the sum of $400, belonging to the defendant Dawson, and placed in his hands on December 16, 1891, by one Thomas Barry, with the consent of the defendant Dawson.

Thereafter, and on or about February 23, 1892, an order was made by Justice Newburger, directing the said Peetsch to pay the said sum of $400, moneys belonging to the judgment debtor in his hands, to the sheriff of the city and county of New York, to be applied upon the execution of the plaintiff against the defendant.

In pursuance of said order, Peetsch paid said sum of $400 to the sheriff.

Evans, the plaintiffs in the second above entitled action, recovered a judgment on the 29th day of January, 1892, against said defendant Dawson, for the sum of $177.62, and on the same day an execution founded on said judgment was issued to the sheriff.

On December 31, 1891, the defendant Dawson, by his order, of that date, requested said Peetsch to pay 0. W. Evans & Sons, plaintiffs above named (in the second action), the sum of $125, out of the $400 held by him (said Peetsch), belonging to defendant Dawson; said order was served upon the said Peetsch, on or about the day of its date, and said Peetsch thereafter acknowledged the receipt

There is no proof that Peetsch accepted said order; and the same not having been accepted by Peetsch, it was net a transfer of the debt, or of any part thereof

The right of Peetsch to the possession of the $400 is not substantially disputed; it was placed in his hands by the defendant Dawson voluntarily.

There is no substantial dispute as to the facts of the indebtedness of Peetsch (the third party) to Dawson for the sum of $400, and Dawson not having made a legal transfer of the $400 in the hands of Peetsch, was the property of the defendant Dawson at the time Peetsch paid the $400 to the sheriff under the order of Justice Newburger, made on February 23, 1892.

The $400 was, as appears by the examination of Peetsch, to be held by him and paid over to the defendant Dawson on the 16th day of January, 1898, provided no liens or claims should be claimed against the store sold by Dawson to Barry. It also appears that plaintiff Duffy gave notice to Barry, at the time of the closing of his purchase, of his claim for $400, * * * “and that was the reason the amount was put in his hands,” and that Dawson refused then and there to pay it.

On March 8, 1892, an order was made by Justice Newburger, founded upon the judgment roll herein, the execution issued thereon, order for examination of Peetsch, the order made thereon by Justice Newburger on February 23, 1892, the affidavit of plaintiff Duffy, verified March 3, 1892, directing the said sheriff and Evans, the judgment creditors above named, to show cause, on March 11, 1892, why an order should not be made directing the said sheriff to apply the sum of $400, paid to him by said Peetsch, to the execution issued on the judgment of the plaintiff Duffy.

On the hearing of the motion, an order was made thereon, by Justice Newburger, denying the motion as stated in said order, “The court being of the opinion that it has no power to grant such an order as sought for by the plaintiff Duffy,” and staying all proceedings on the part of the plaintiffs Evans to compel the sheriff to pay over the sum of $177 out of the $400 now in his hands pending an appeal to the general term of this court, and to the court of common pleas, should such an appeal be taken.

From this order plaintiff Duffy appeals.

Where there is a question of priority between different executions in the hands of the sheriff, the order of priority is usually determined by the court upon motion between the execution creditors, and the court has ample power to direct how the money shall be paid; and where the court makes such direction, the sheriff is bound to apply the same accordingly.

It does not appear that any levy was actually made by the sheriff, under the execution issued in Evans against Dawson, upon any property of the defendant Dawson.

The Code contains no provision for a levy on equitable interests in the hands of a third party, probably for the reason that the judgment creditor has a more summary and effectual remedy, by supplementary proceedings, to examine the party owing the debt to the debtor, and by obtaining an order permitting the third party (Peetsch) to pay over such debt to the sheriff, to be applied, on the execution. The plaintiffs Evans failed to pursue this statutory remedy on their judgment, and the plaintiff Duffy pursued his remedy under § 2441 of the Code, and by force of his (Duffy’s) proceedings the said sum of $400 reached the sheriff for his benefit The execution issued on the judgment of Evans, etc., against-Dawson, created no lien on this sum while in the hands of Peetsch, and none could be created thereon, except under § 2441, which was not put in use by the judgment creditors, Evans & Sons.

See First Nat. Bank of Chicago v. Reinitz (General Term City Court) 24 State Rep., 740.

Duffy, a vigilant creditor, under the order for the examination of Peetsch (obtained under § 2441 of the Code), discovered property belonging to the defendant Dawson in the hands of Peetsch, and the same was paid over as hereinbefore stated, by order of Justice Newburger, to the sheriff, to be applied upon his execution, and the sheriff refused to apply the same to the execution of Duffy.

The provisions of the act entitled “ Supplementary Proceedings ” furnish a .substitute for the creditors’ bill under the .provisions of the old court of chancery, and the service of the order for the examination of a third party should give' the judgment creditor the priority of a vigilant creditor and a lien upon the assets of the debtor.

In Lynch v. Johnson, 48 N. Y., 27, the question decided arose-under the provisions of §§ 292 and 294 of the old Code, which were similar in all respects to §§ 2441, 2446 and 2447 of the-present Code; and Earl, J., in his opinion at page 32, says:

“ Proceedings under §§ 292 and 294 of the Code are ' parts of' the same scheme for the collection of debts, inaugurated by the-Code. These sections furnish a simple substitute for the creditors’ bill, as formerly used in chancery. The commencement of the creditor’s suit in chancery gave the creditor at once a lien upon the equitable assets of the judgment debtor.
“He was rewarded as a-vigilant creditor; the commencement of his suit being regarded as an actual levy upon the equitable assets-of the debtor. Under §§ 292 and 294, the service of the order-takes the place of the commencement of the suit under the old system, and should give the judgment creditor the priority of a vigilant creditor, and a lien upon the equitable assets of his debtor.” See Barnes v. Borgen, 3 Hun, 703.

Sections 2447, 2448 and 2449 of the Code provide that where it shall appear from the testimony in proceedings supplementary to execution that property of the judgment debtor is in the possession or under the control of himself or some other person, the judge * * * may, in his discretion, there being no receiver, make an order directing the judgment debtor or such other person to deliver such property to the sheriff: when so delivered, the property is to be treated as if it had been levied upon by virtue of an execution. Estate of Stewart, 8 Civ. Pro., 356.

. The lien of the plaintiff Duffy was rendered effectual by the order of the justice dated February 23, 1892, directing the $400 to be applied by the sheriff upon Duffy’s execution.

In Bevans v. Pierce, 1 City Ct, 259, McAdam, J., passed directly upon the question involved herein; and held that the judgment creditor who by his diligence had procured and served the order for the examination of the third party had a lien upon the property disclosed, and that such lien followed the funds in the hands of the sheriff. See Pack v. Gilbert, 18 Civ. Pro., 262; 30 St. Rep., 486.

That portion of the order appealed from as denied plaintiff’s motion, must be reversed, with costs, and the motion made by plaintiff Duffy on the order to show cause granted March 8,1892, should be granted, with costs.

McCarthy, J., concurs.


text:
    Halsey Fitch et al., Resp’ts, v. Alexander A. Kennard et al., App’lts.

      (City Court of New York, General Term,

      Filed May 25, 1892.)

    Witness—Impeachment.
    A witness whose testimony has been taken by commission and who is not in court cannot be impeached by proof of other statements out of court, unless his attention was called to them in the examination made under the commission.
    Appeal from judgment in favor of plaintiffs, entered upon verdict.

      Gruber & Landon, for app’lts; J. G. Flammer, for resp’ts.
   McCarthy, J.

This action was commenced on April 7, 1891, to recover the sum of thirty-six and 73-100 dollars ($36.73), damages, which the plaintiffs claimed to have sustained in consequence of the defendant’s breach of contract, growing out of the following facts :

The plaintiffs being commission merchants, the defendants offered to sell and ship to them upon the night of March 18, 1891, from Chicago to New York city, a carload of Indiana eggs at twenty and a half cents per dozen, delivered in Hew York, freight prepaid.

The plaintiffs paid that sum therefor upon production of the defendants’ bill of lading and draft and before the arrival of the said eggs; but owing to neglect and delay on the part of the defendants, the said eggs were not shipped on March 18, 1891, and consequently did not arrive in New York city until Tuesday, March 24, 1891, when they ought to have arrived in due course of transportation on Monday, March 23, 1891, had the said eggs been shipped as agreed upon.

It was proven that the market in New York city for Indiana eggs on Monday, March 23, 1891, was twenty-four and a half cents per dozen, at which price these plaintiffs could have easily sold them, but on Tuesday, March 24, 1891, the quotations for Indiana eggs broke from 24-¡- cents per dozen to 21f cents per dozen, to their loss of $297.'33, the said shipment having contained 10,312 dozen eggs.

The plaintiffs further proved that upon the arrival of the said eggs the plaintiffs inspected them and found that they were not Indiana eggs as reported, but were what is known in the trade as “ Kentucky ” or “ Southern ” eggs, having a value of at least one-half cent per dozen less than Indiana eggs, making an additional loss upon the said shipment of fifty-four and 6-100 dollars ($54.06).

The plaintiffs were also obliged to pay fifteen and 34-100 dollars ($15.34) extra freight thereon before they could obtain possession thereof.

The jury rendered judgment for the plaintiffs for the sum of three hundred and twelve and 67-100 dollars ($312.67), disallowing the claim of fifty-four and 06-100 dollars ($54.06), being the difference between northern and southern eggs, as to which subject the main dispute upon the trial arose.

The exceptions taken to the answers to the interrogations propounded to the witnesses Dodd and Davis, we think, are not well taken.

Their answers are, in the main, the substance of the conversation, and are the statements of the agent of the defendants, and therefore binding on them.

It is very clear that the defendants, having the quantity of eggs for sale, directed the firm of Davis & Co. to sell the same, giving terms and times of shipment

In regard to some of the answers, it does not appear but what the members of the firm of Davis & Co. had conversations in relation to the matter.

The defendants recognized the acts of these witnesses, since they sent the bill of lading marked Exhibit D. and thg drafts marked Exhibit D. for two thousand one hundred and thirty-nine and 46-100 dollars ($2,139.46) to these plaintiffs.

The only other question to be considered is the exceptions taken to the rulings of the court on the questions put to Mr. Kennard and Wen.

It appearing from the testimony, and not contradicted, that Davis & Co. were the agents of the defendants, the defendants were precluded from giving any conversation between them and the witness Dodd.

If the defendants’ counsel as he asserts in his brief, wished to show that their agent was mistaken in his testimony, then the questions were too general and did not indicate the purpose of the same, nor was any such statement made to the trial j udge.

Besides the witness, Dodd, not being in court, his testimony having been taken by commission, could not be impeached by proof of other statements out of court, unless his attention was called to it in the examination made under the commission. Stacy v. Graham, 14 N. Y., 492.

Comstock, J., in this case at page 498, says: “ The rule does not appear to be uniform in all the states that, in order to impeach a witness by proving previous declarations made by him inconsistent with his evidence, he must be first interrogated as to what he has said. 17 Mass., 160; 6 N. H., 465; 5 Conn., 557; 8 Greenl., 42.

“ It prevails, however, so generally that the cases which are the other way cannot now be considered as authority.

“ The doctrine is well settled in England, and in this state it has now become so familiar that the authorities need not be cited.

“If this rule in question is founded upon any good reason (and of this we do not admit a doubt) there can be none for discriminating in the case of a deposition taken before the trial.

“ If the party against whom the witness is examined knows of the inconsistent statements, which he expects to prove at the trial, he can attend and propose such interrogations as the rule requires- in order to lay the proper foundation for the intended impeachment.

“ If he does not know at the time, but the statements come to his knowledge afterwards, and before the trial, he can apply for .a commission or move a postponement until the evidence can be procured, if he thinks it material to his case.

“ The mere absence of the witness has never been considered a reason for allowing his unsworn statements to be proved in order to affect his credibility. * * *

“ The principle on which the practice essentially rests is that both the party and the witness are entitled of right to any explanation which the latter can give of the statements imputed to him.

“ When the witness is present he can be recalled by the same party for the purpose of explanation after the impeabhment has been attempted, but if he happen to be absent then the right is obviously lost.” See Van Ness v. Bush, 14 Abb. Prac., 37.

We find no errors, and judgment should be affirmed, with costs.

Newburger, J., concurs.


text:
    The Globe Yarn Mills, Resp’t, v. William H. Bilbrough et al., App’lts. (3 cases.)

      (City Court of New York, General Term,

      Filed May 25, 1892.)

    1. City court of New York—Jurisdiction—Draft.
    Plaintiff, a foreign corporation, brings these actions against defendants a domestic corporation, residing at Cohoes, upon drafts drawn by them upon a firm in New York city, payable there and in Troy, acceptance of which was refused. Held, that the city court had jurisdiction of the actions.
    2. Attachment—Affidavit.
    An affidavit made by a person who acted for the treasurer of the plaintiff and conducted the negotiations and completed the transactions with defendants, is sufficient to sustain an attachment.
    Appeal from order denying motion to vacate a warrant of attachment.

      Kneeland, Stewart & Epstein, for app’lts; Eaton & Lewis, for resp’t.
   McCarthy, J.

This is an appeal on the part of defendants from an order denying a motion to vacate a warrant of attachment.

The motion was made on the papers on which the attachment was granted.

Actions one and two are on drafts made by the defendants in Cohoes, N. Y., to the order of the treasurer of the plaintiff drawn on Cowing, Sawyer & Co., No. 63 Leonard street, New York city.

It is conceded that the same were presented thereafter for acceptance and the same refused, and that notice of such nonacceptance was given to the defendants and the drafts are unpaid, and action three was on a draft made in Cohoes, N. Y., and payable at Troy, N. Y.

The plaintiff is a foreign corporation, organized and existing under the laws of the state of Massachusetts, and the defendants are a domestic corporation, and doing business at Cohoes, in the state of New York.

The appellants contend that this court has no jurisdiction because neither the plaintiff or defendant resides in nor has a place of business within the city of New York, and that the cause of action did not arise within the city of New York.

It is claimed by. respondents and not denied by appellants that summons and papers were properly served on defendants in pursuance of § 3170, Code of Civil Procedure.

The cause of action arose within the jurisdiction of this court. Two of the drafts, although made in Cohoes, were addressed to a firm in New York city. The third was payable at the city of Troy, within the state of New York.

The rights of the parties are to be governed by the laws of the place of payment.

Both places are within the state, and therefore this court has jurisdiction.

The principal contract sued on, although made in Cohoes, N. Y., was addressed to a firm legally resident in New York city or doing business there and the draft was consequently payable there, and upon general principles the jurisdiction of the court may be invoked in ascertaining its nature and interpretations and the duties and liabilities which it created.

By drawing the draft, the defendants undertook that the drawces in New York city would pay it to the plaintiffs or their order, that is, to any person to whom it should be endorsed; and that if the drawees did. not so pay it, they, the defendants, would make such payments. Everett v. Vendryes, 19 N. Y., 438; Hibernia Nat. Bank v. Lacombe, 84 id., 367.

The drawer of a draft undertakes that the drawee will be found at the place where he is described to be and that the sum specified will there be paid to the holder when the draft is presented, and if not so paid, and he is notified, he becomes absolutely bound to pay the amount at the place named. See 84 N. Y., 379.

Admitting that plaintiff is a foreign corporation, § 1779, Code of Civil Procedure, reads: “An action may be maintained by a foreign corporation in the manner and subject to the same regulations as where the action is brought by a domestic corporation, except as otherwise specially prescribed by law.”

Section 3343, subd. 18, Code of Civil Procedure, among other things defines “ a domestic corporation to be a corporation created by or under the laws of the state.”

Section 315, Code of Civil Procedure, reads: “ The jurisdiction of the city court of New York extends to the following cases: An action against a natural person or against a foreign or domestic corporation, wherein the complaint demands judgment for a sum of money only, or to recover one or more chattels with or without damages for the taking or detention thereof.”

There are no provisions of the Code of Civil Procedure which declare that in order that this court shall obtain jurisdiction over a plaintiff, domestic corporation, the same must have a place of business, nor does it fix any other limitations in order to entitle plaintiff to bring suit in this court.

And since § 1779, Code of Civil Procedure, gives a foreign corporation the right to sue in the same manner and subject to the same limitations as a domestic corporation, it follows that the plaintiff in this action is properly in court.

In other words, this court has the same jurisdiction on this subject as the supreme court.

The only provisions in regard to a domestic corporation are § 264, which applies to superior city courts, and § 341, which applies to a county court. Section 3169, Code of Civil Procedure, has been fully complied with.

From an examination of the various sections quoted it is very, clear that this court has jurisdiction of the person or corporation, as well as the subject matter of the action.

We think there is nothing in the objection to the sufficiency of the affidavits upon which the attachment was granted.

The person who made the affidavits was the one who acted for the treasurer of the plaintiffs and conducted the negotiations and completed the transactions with the defendants.

He was not in a position of an attorney, but that of a principal.

The facts were certainly within his personal knowledge, and under the authorities we think the affidavits were sufficient.

Besides, wherever any statement was made on information and belief, the source of such information is fully and fairly stated.

The orders appealed from should be affirmed, with costs.

McGrOWH, J., concurs.


text:
    Joseph R. Palmer, Resp’t, v. William H. Starbuck et al., App’lts.

      (City Court of New York, General Term,

      Filed May 25, 1892.)

    Undertaking—Attachment—Liability oe sureties.
    The sureties to an undertaking given upon the issuing of an attachment, by which they covenant to pay all costs and damages which may be awarded to or sustained by the defendant, not exceeding a sum specified, are entitled to the benefit of all payments for costs or damages made by their principal, and can in no event be held liable for more than the difference between the amount so paid by him and the sum specified in the undertaking. So held, where the attachment was not vacated, but the complaint dismissed, and the principal paid the costs of the action to an amount exceeding that specified in the undertaking.
    Appeal from order overruling demurrer to complaint, and from interlocutory judgment entered thereon.

      Kellogg, Rose & Smith, for app’lts; Burrill, Zabriskie & Burrill, for resp’t.
   McCarthy, J.

This is an appeal from an order overruling the demurrer interposed by the defendants and from the interlocutory judgment entered thereupon in favor of the plaintiff and against the defendants.

The action is brought to recover upon an undertaking on attachment given by the defendants as sureties for one John L. Macaulay in an action brought by him against Joseph R. Palmer, the plaintiff herein, upon the procurement of an attachment in that action in favor of said Macaulay against the present plaintiff.

The plaintiff in his complaint alleges the bringing of the action by Macaulay against him, the procurement of an attachment in the sum of $250 (this undertaking being the subject of another action heard upon demurrer at the same time as the present action); the' levy of the sheriff under the warrant of attachment; the giving of the undertaking sued on herein, in pursuance of an order of the supreme court; the proceedings in the actions brought by Macaulay against Palmer, including a dismissal of the complaint at circuit; affirmance of that judgment at general term and also at the court of appeals.

The undertaking given was in this form:

That the defendants do jointly and severally undertake, pursuant to the statute in such case made and provided, in the sum of $1,000, that if this plaintiff should recover judgment in said action or if the warrant of attachment should be vacated, that plaintiff in that action would pay all costs that may be awarded to this plaintiff, and all damages which this plaintiff may sustain by reason of attachment, not exceeding the said sum above mentioned.

The complaint also alleges that the plaintiff in said action has paid the judgment for costs in said action upon April 29, 1891,-amounting altogether to one thousand and* sixty-three 08-100 dollars.

The attachment was not vacated on motion, but the plaintiff recovered judgment.

The plaintiff claims that the warrant of attachment not having been vacated by motion, no costs were incurred by reason of the attachment, and that the various costs paid in the original action cannot be allowed or deducted from any liability adjudged against the defendants, and therefore plaintiff is entitled to recover damages on such undertakings in the sum of $1,000.

We have given this case much care and consideration.

If the sureties on the undertaking for an attachment are liable for the costs of the action, it being conceded that the appellants or their principals have paid more than the amount of the bond or undertaking, this order overruling the. demurrer of the" defendants and the interlocutory judgment entered thereon must be reversed.

The undertaking given herein was in accordance with § 640, Code of Civil Procedure.

It in effect provides that the defendants Starbuck and Bostwick do jointly and severally undertake pursuant to the statute in such case made and provided, in the sum of $1,000, that if the plaintiff should recover judgment in said action, or if the warrant of attachment should be vacated, the plaintiff in that action would pay all costs that may be awarded to the plaintiff and all damages which this plaintiff may sustain by reason of the attachment, not exceeding the sum of $1,000.

We think this clearly means the costs of the action as well as of appeal, and was imposed as a penalty against a plaintiff who, not content to proceed in the ordinary way, resorts to a remedy which is only provisional, but likely to leave lasting injury. For if the plaintiff had no cause of action and no provisional remedy was resorted to, he would have to pay costs only, and if responsible no great harm could come.

We think if, besides having no cause of action, he should resort to an attachment, and thus tie up the defendant’s property during a long and tedious litigation, as in this casé, causing injury and damages, he cannot escape from the consequences of his whole act, which must be serious, but must indemnify the defendants for all the costs and all the damages.

Smith, P. J., in Lee v. Homer, 37 Hun, 636, says: “There are two conditions on the happenings of either of which the undertaking becomes obligatory, namely, the recovery of judgment by the defendant in the action, and the vacating of the warrant of attachment. Either may happen without the other, that is to say, the defendant may recover judgment without the attachment being vacated except by the necessary effect and operation of the judgment in the defendant’s favor, no motion being made for a vacation, or the attachment may be vacated on motion, notwithstanding the plaintiff may recover in the action.

“ In the latter case the parties executing the undertaking clearly would not be liable by force of it for the costs 'of the action, because none would be awarded to the defendant • while in the former case the costs of the action would be awarded to the defendant, but none would be awarded him by reason of the attachment

“ Strictly speaking, no costs can be awarded to a defendant by reason of the attachment, in any case the expenses incurred by him for the fees of the attorney and counsel in moving to vacate the attachment being included in the term ‘ damages.’ Currie v. Riley, 14 W. Dig., 407.

“In that respect the case is analogous to that of an injunction,, in which latter case it is well settled that the taxable costs of the defendant necessary to obtain a dissolution of the injunction may properly be considered as damages so as to enable the defendant to recover them of the sureties in the injunction bond if he is-unable to collect them of the plaintiff in the suit. Edwards v. Bodine, 11 Paige, 223; Aldrich v. Reynolds, 1 Barb. Ch., 613; Andrews v. The Glenville Woolen Co., 50 N. Y., 282; Hovey v. The Rubber-Tip Pencil Co., id., 335; Rose v. Post, 56 id., 603.

“ Recurring to the section of the Code under consideration we are of the opinion that the words ‘which he may sustain by reason of the attachment,’ apply to the amages’ only and not to the ‘ costs which may be awarded to the defendant; ’ the costs thus referred to being those of the action and not those-incurred in a motion to vacate the attachment, which are regarded as damages.”

The case was carried to the court of appeals, having been submitted under § 1279, Code of Civil Procedure, and was affirmed. See Lee v. Homer, 109 N. Y., 630; 14 St. Rep., 921, no opinion is given.

Thus affirming in every particular the opinion of the court-below. See Bennett v. Brown, 20 N. Y., 99, 102.

Church, Ch. J., in Hinckley v. Krietz, 58 N. Y., 587, in discussing another proposition, fully approved the case of Bennett v. Brown, supra, and says: “ Bennett v. Brown, 20 N. Y., 99, was the case of a bond given upon issuing an attachment against non-resident debtors, conditioned to pay all damages and costs which they should sustain by reason of issuing the attachment-if the plaintiff should fail to recover judgment thereon.

“A judgment was obtained before the justice, but it was reversed on certiorari to the common pleas.

“ The court held the defendant liable for the judgment for costs in the common pleas.

“ The terms of the bond did not restrict the liability to a failure to recover before the justice, but extended to a final recovery-in the action, and when the justice’s judgment was reversed, it-was as though never rendered.” See opinion of Daniels, J., in Northampton National Bank v. Wylie, 16 Civ. Pro., 326, 329 and 330; 26 St. Rep., 286.

It clearly included the numerous items designated in the statute as costs, together with the fees of officers and witnesses, which may be recovered, under its settled and well-defined provisions, as a part.of the'judgment in favor of the successful party.

The sureties to an undertaking given upon issuing of an attachment by which they covenant to pay all costs and damages which may be awarded to or sustained by the plaintiff not exceeding the sum specified, are entitled to the benefit of all payments for costs or damages made by their principal, and can in no event be held liable for more than the difference between the amount so paid by him and the sum specified in the undertaking.

Davis, P. J., in Baere v. Armstrong, 26 Hun, 21, says : “The undertaking of the sureties was that their principals would pay all costs which might be awarded to the defendants, and all damages which they might sustain by reason of the attachment, not exceeding the sum of $250.

“If the evidence had been received, it would have shown that Claflin & Co. had paid a portion of the liability which the sureties had undertaken they would pay.

“Undoubtedly if the respondents in this action are right in their position that the undertaking followed the appeals to the several courts, the costs awarded.by these courts were a part of the liability which the sureties in the undertaking agreed that their principals should pay.

“Their undertaking was that their principal will pay such costs and damages to the amount of $250, and when their principals do make payment to that amount their liability on the undertaking is at once discharged.

“The respondents could not proceed to collect of Claflin & Co. a portion of their costs or damages and then proceed upon the undertaking against the appellants for the whole amount therein specified.

“Such a construction would impose upon the sureties a greater liability than they have undertaken; and while the rule is that they should be held like other contracting parties strictly to the liabilities incurred, the doctrine that their agreement is to be construed strictissimi juris forbids any extension of liability by construction.”

The respondent contends that the undertaking on appeal to the general term and to the court of appeals providing for costs as well as for judgment made the sureties on such undertaking the primary security for the costs of the actiqn and superseded the undertaking on attachment.

We cannot agree with him. We think he has a right if he sees fit to rely primarily on the undertaking given on the attachment for the costs of the action and costs of the appeal as well as the damages sustained.

The respondent cited the case of Sutorius v. North, 20 Civ. Proc., 162; 36 St. Rep., 873, and Sperry v. Heilman, 20 Civil Pro., 218; 37 St. Rep., 258, in support of his proposition.

We have great respect for these decisions being our court of appeals, to wit, the court of common pleas of the city of Hew York, and would, undoubtedly, follow them, but we think those cases and the case at bar are not analogous.

Section 559 in regard to arrests provides: Or if it is finally decided that the plaintiff is not entitled to the order of arrest, the plaintiff in said action will pay all costs which may he awarded to the defendant by reason of the arrest in said action.

The words finally decided that plaintiff is not entitled to the order of arrest does not mean the mere vacating of an order of arrest, hut the final judgment in the action.

Orders of arrests are sometimes granted on grounds extrinsic to the cause of action.

In a case of that kind where the order of arrest was vacated on motion, the only costs recoverable would be counsel fee and expenses in securing such vacating, and these could only be-/.recovered as damages, but in a case where the cause of action and arrest, are identical, and it is finally decided that the plaintiff is not entitled to the order of arrest, which means a final judgment, then we take it in accordance with the opinion of the learned judges in the cases decided by the common pleas, that the plaintiff may only recover such costs as accrued directly from the arrest or any proceeding in the action or otherwise necessitated by such arrest, and the balance for damages.

We think a different construction must be given to an undertaking on attachment, and feel we aré sustained by authority.

Besides, it does not appear what the nature of the action in those cases cited by the respondent were, nor has our appellate court directly passed on this distinction.

The undertaking being for $1,000, and the defendants or their principals having paid more than the extent of their liability, the order overruling the demurrer and the interlocutory judgment entered thereon should be reversed and vacated, and the demurrer sustained and judgment for the defendants, with costs.

McGown, J., concurs.


text:
    Philip D. Armour et al., Resp’ts, v. Fred Kirchoff, Appl’t.

      (City Court of New York, General Term,

      Filed May 25, 1892.)

    Sale—Verdict.
    In an action for goods sold and delivered to defendant at his request, the answer was a general denial, and an allegation that defendant had no dealings with plaintiffs, and that the summons was served on the wrong person. On the trial defendant admitted that goods to the amount claimed were delivered as stated, but to defendant’s son, who had a similar name. Held, that the only question was, to whom were the goods sold, and that the verdict in favor of plaintiffs was conclusive of that fact.
    Appeal from judgment in favor of plaintiffs, entered upon verdict and from order denying motion for a new trial.
    A judgment was rendered herein in favor of the plaintiffs and against the defendant, on the verdict of a jury, on a trial held on September 25, 1891, for the sum of $490.51 and costs.
    At the close of the trial a motion for a new trial was made, on the grounds that the verdict was against the weight of evidence, etc., and denied, and on the 22d day of October, 1891, an order was entered denying the motion for a new trial.

      Frederick A. Botty, for app’lt; H. M. Greene, for resp’ts.
   McGown, J.

The complaint alleges (paragraph second) that plaintiff, between the 20th day of February, 1890, and the 2d day of July, 1890, sold and delivered to the defendant * * * meat, at the special instance and request of defendant, which said goods were reasonably worth the sum of $1,717.12 ; that no part had been paid except the sum of $1,252.36, leaving a balance' due and owing to plaintiffs from defendant of $464.76.

Defendant in his answer sets up :

Second. A general denial of each and every allegation in paragraph second of said complaint:
Third,. That at the time mentioned in paragraph second of said complaint he was not engaged in the butcher business, and that he did not have any business transaction with the plaintiffs whatsoever ; that when the summons herein was served on him, it was served on the wrong person, etc.

A bill of particulars was offered in evidence marked Def’ts Ex. 1 (p. 3), showing an account between May 13, 1890, and July 29, 1890, between Mr. E. Kirehoff and Armour & Co., and a balance unpaid of $464.76, and it was admitted by defendant’s counsel that certain goods were sold and delivered as mentioned in the bill of particulars, but not to his client, and that young Kirehoff was the one that received the goods.

The sale being admitted, also the value of the goods, the only question to be submitted to the jury and the only issues to be passed upon were, to whom were the goods sold ? To the defendant Fred. Kirehoff or to his son, Fred. Kirehoff, Jr.?

The trial justice in his charge stated to the jury :

“ The first question to be submitted to you is, to whom were the goods in question sold? If you determine that the goods were sold to Kirehoff, Sr., your verdict will be for the plaintiffs for $464.76, with interest.”

The jury having rendered their verdict for the plaintiffs upon a disputed question of fact for the amount claimed and interest, evidently found as a question of fact that the goods in question were sold to the defendant and not to the defendant’s son, F. Kirehoff, Jr., and we see no reason for disturbing their verdict.

We have examined the exceptions taken upon the trial and found no merit therein.

Judgment and order appealed from must be affirmed, with costs to the respondent.

Newburger and McCarthy, JJ., concur.


author: Newburger, J.

text:
    Robert J. Gray, Resp’t, v. Charles H. Bliss, App’lt.

      (City Court of New York, General Term,

      Filed May 25, 1892.)

    Evidence—Agiieement to account.
    PlaintiS assigned to defendant a claim against one G-., to be used as a counterclaim in an action brought by G. against defendant; who executed a written agreement to account to plaintiff for such claim if he recovered the same or had the same allowed in such suit. In an action to recover the portion allowed in that action, Meld, that the agreement was not one to pay, but only to render an account and the balance due; that an agreement to allow defendant the costs and disbursements of the action brought by G. could properly have been the subject of a contemporaneous, independent oral contract, and that evidence thereof was admissible.

      Appeal from judgment in favor of plaintiff.

      Olin, Rives & Montgomery, for app’lt; Miller & Miller, for resp’t.
   Newburger, J.

In 1882, defendant was indebted to Gal-land & Co., contractors, for some work done in the erection of a building.

The plaintiff was a sub-contractor, and had a claim against Galland for eight hundred and thirty-four and 20-100 dollars ($834.20).

Plaintiff assigned his claim to the defendant to be used by defendant as a counter-claim in a suit brought by Galland against defendant herein.

At the time of' this assignment, the defendant, by his attorney, delivered to plaintiff a writing wherein he agreed to “ account to plaintiff for the claim assigned to him, if be recovered the same or have the same allowed in the suit of Galland against him.”

An action was brought by Galland against Bliss. Bliss set up, as a counter-claim, the claim of Gray, which had been assigned to him.

On the trial, Galland recovered judgment for one thousand and one hundred ($1,100) dollars, less four hundred ($400) dollars, with interest

The present action is brought by Gray to recover four hundred ($400) dollars, with interest.

The answer admitted all the allegations of the complaint, but set up as a defense, that it was agreed between plaintiff and defendant, at the time of making the agreement set up in the complaint, that the defendant was to resist the enforcement of Galland’s claim against him, with the view of protecting Gray’s claim against Galland, and that the assignment of said claim to defendant was upon the understanding and agreement that the cost of defending the action to be brought by Galland was to be borne by Gray, and that the costs of the action paid to Galland with a reasonable counsel fee should be deducted from the amount of plaintiff’s claim.

On the trial of the ’action defendant called his attorney as a witness, and asked him a number of questions tending to show that at the time of the assignment from plaintiff to defendant, and the agreement from defendant to plaintiff to account for all moneys collected under such assignment, there was a further agreement that defendant should be allowed all the counsel fees, costs and disbursements incurred by him, and the amount of such counsel fee, costs and disbursements so incurred.

To all such questions plaintiff objected on the ground that this action having been brought on written contracts no paroi evidence can be introduced to change or vary them.

The objections were sustained, to which defendant excepted.

Thé contract between plaintiff and defendant was that defendant should account to plaintiff for all moneys received by him from Galland.

The agreement to account was not an agreement to pay, as the trial justice seems to have held, but was an obligation on the part of the defendant to render the plaintiff a statement or record of financial or pecuniary transactions, with their debits or credits, or ■of money received and paid, and the balance on hand or due.

The agreement did and was intended to do no more than to require defendant to render a proper statement of all moneys received by reason of the assignment from plaintiff.

The contention of the defendant that he was to be allowed counsel fee, costs and disbursements, may properly have been the subject of oral contract between them, contemporaneously with the writing and independently of it. Ferguson v. Baker, 116 N. Y., 257; 26 St. Rep., 626; Dodge v. Zimmer, 110 N. Y., 43; 16 St. Rep., 657.

The trial justice therefore erred in excluding the testimony offered.

For the reasons stated the judgment should be reversed and a new trial ordered, with costs to abide event.

McCarthy, J., concurs.