text:
    Kelley v. Faudhaber et al.

    (Supreme Court, Appellate Term, First Department,
    September 28, 1896.)
    Parties—Misjoinder—Mode op raising objection.
    An action cannot be dismissed, as against one of the defendants, on the ground that two causes of action were joined against two different defendants, unless there was a demurrer, or a plea of misjoinder.
    Appeal from ninth district court.
    Action by Charles F. Kelley against Mary J. Faulhaber and Philip Faulhaber. There was a judgment in favor of plaintiff, and defendant Mary J. Faulhaber appeals.
    Bernard J. Isecke, for appellant.
    James C. De La Mare, for respondent.
   McADAM, J.

This is an appeal by the defendant Mary J. Faulhaber, Avife of the co-defendant Philip Faulhaber, from a judgment in favor of the plaintiff against both defendants. The action was on an assigned claim for professional services alleged to have been rendered by James C. Be La Mare, an attorney and counselor, to the defendants. There is no dispute as to' the rendition and value of the services. The question is Avhether they Avere rendered to Philip Faulhaber, the husband, the wife merely acting in respect to the employment as his agent; or whether the work was done on the retainer of both defendants, for their joint benefit; or whether, irrespective of the latter feature, she, by any act of hers, made herself personally liable for the bill. Prior to the performance of the work in question the plaintiff’s assignor had rendered professional services for the defendants jointly in an action by Smith & Sills, in the' court of common pleas, to set aside as fraudulent a conveyance of certain real estate made by Philip Faulhaber to his wife, in which action both were parties; and the services therein, the value of which was fixed at $50, were paid for by Mrs. Faulhaber. The present demand consists of three parts:

(1) Services in dispossess case of Mary Faulhaber
(not the appellant) against Philip Faulhaber;....... $ 30
(2) Services in arranging compromise of judgment
held by Smith & Sills against Philip Faulhaber.... 25
(3) Services in examining title to two houses and lots
on Third avenue...................................... 100
$155

The precept in the dispossess case was taken to Mr. De La Mare by Mrs. Faulhaber, who employed him to defend it. She claimed the right of possession to the property, which she said was perpetual in its nature, and of as high a character as that asserted by the person who instituted the proceeding as landlord. The second item was for effecting a compromise of the judgment against Philip Faulhaber, upon which Smith & Sills had filed their creditors’ bill before mentioned. It appears that the defendants succeeded in the creditors’ action, whereupon Smith & Sills advertised for sale all the right, title, and interest which the judgment debtor had in the property. The judgment was for $946.31, and with the interest thereon, amounted to about $1,200. The record title to the property stood in the name of Philip Faulhaber, but he had previously executed a deed thereof to his wife, who claimed title thereunder as the true owner. It was deemed advisable to get rid of the judgment, and obviate the embarrassment of a sale by the sheriff. Mr. Faulhaber testified that his wife was as much interested in getting rid of this judgment as he was, and that she had every tiling to do with the transaction; and she testified that the business carried on by the defendants belonged to her. The appellant retained the plaintiff’s assignor to try and compromise the judgment, and he- succeeded in inducing the judgment creditors’ attorney to agree to accept $900 in settlement. It then became necessary to raise the money to carry out the compromise, and Mr. De LaMare was instructed to obtain a loan of $1,000 for the purpose. He induced a client of his to agree to loan the money, provided he examined the title and guaranteed that every tiling was satisfactory. Mrs. Faulhaber was informed of this and told him “to examine the title and compromise the judgment, and she would pay for it,” and to get the thing through as fast as he could. She had no abstract, and Be La Mare had to go over the records, and make his searches without any aid other than that furnished by the records themselves; and the result of his labors appears by an informal abstract annexed to, and made part of, the justice’s return. After the attorney had completed his work, Mrs. Faulhaber notified him that she had arranged for a loan of $1,200 from Smith Williamson, and that his services were no longer required. He expressed his indignation at the treatment, and thereafter assigned his claim to the plaintiff, who brought suit thereon, which resulted in the judgment appealed from.1 After the execution of the mortgage to Williamson, Philip Faulhaber deeded the property to his wife, subject to the - mortgage; and, in a partition suit subsequently brought, she , received the share of the proceeds of sale which- would have gone to her husband if the transfer to her had not been made. The plaintiff’s assignor testified that his dealings were all through Mrs. Faulhaber, in her individual capacity; that she ! did all the consulting, and was the active party throughout I all the transactions.

The facts stated sufficiently show that Mrs. Faulhaber was interested in all the matters respecting which the services were rendered, and, that, if not liable therefor jointly with her husband, she was individually bound to pay for them. There was no plea of misjoinder of parties, and when the plaintiff rested there was no motion made to dismiss the action, or any suggestion made against its form. Upon the conclusion of the case a motion was made to dismiss as to Mrs, Faulhaber on the ground “that sufficient facts have not been shown to constitute a cause of action,” and that the plaintiff has “joined two causes of action against two different defendants.” The evidence sufficiently established a cause of action against Mrs. Faulhaber, and the motion to dismiss on that ground was properly denied; and as there was no demurrer, or plea of misjoinder, the action could not be dismissed as to her upon the technical ground assigned, —that two causes of action had been joined against two different defendants. No motion to dismiss was made as to the husband and, as he has not appealed, the wife, if liable, cannot complain that the judgment, as to him, was unauthorized. The appellant urges that throughout the entire matter she acted only as the agent of her husband, and by his authority, and that the transaction disclosed her agency; hence she incurred no personal responsibility. The trouble with this argument is that the facts, as found by the justice and sustained by the evidence, will not permit the application of the rule-invoked; for her personal interest in all the matters respecting which compensation is claimed presumptively established that she was, to an extent at least, acting for her own benefit and on her own account, as principal, and if she was likewise acting for her husband, to the extent to which he was interested, the action was properly brought against both jointly, and all objection to its form at once disappears.

“Wherever an obligation is undertaken by two or more, or a right given to two or more it is the general presumption of law that it is a joint obligation or right. Words of express joinder are not necessary for this purpose, but, on the two causes of action had been joined against two different defendants. No motion to dismiss was made as to the husband, and, as he has not appealed, the wife, if liable, cannot, complain that the judgment, as to him, was unauthorized. The appellant urges that throughout the entire matter she acted only as the agent of her husband, and by his authority, and the transaction disclosed her agency; hence she incurred no personal responsibiity. The trouble with this argument is that the facts, as found by the justice and sustained by the evidence, will not permit the application of the rule invoked; for her personal interest in all the matters respecting which compensation is claimed presumptively establishes that she was, to an extent at least, acting for her own benefit and on her own account, as principal, and if she Avas like>vise acting for her husband, to the extent to Avhich he Avas interested, the action was properly brought against both jointly, and all objection to its form at once disappears. “Wherever an obligation is undertaken by two or more, or a right given to two or more, it is the general presumption of law that it is a joint obligation or right. Words of express joinder are not necessary for this purpose, but on the other hand, there should be Avords of severance, in order to produce a several responsibility or a several right.” Pars. Cont. (6tli Ed.) p. 11. Notwithstanding the beneficial interest Avhich she had in the various proceedings, the Avife might have avoided personal responsibility, if, in employing the attorney, she had made known the fact that she Avas acting only on her husband’s account, and as his agent, so as to imply an exclusive credit to him. Story, V'-u-tn. § 131. But, in order to obtain the benefit of this euempuion, she AAras bound to establish to the satisfaction of the justice that she disclosed to De La Mare that she was acting as agent only and did not intend to make herself liable as principal. Whitman v. Johnson, 10 Misc, Rep. 725, 31 N. Y. Supp. 805. For, as Story says in his work on Agency (section 266):

“A person contracting as agent will be personally responsible, where at the time of making the contract he does not disclose the fact of his agency, but he treats with the other party as being himself the principal; for in such a case it follows, irresistibly that credit is given to him on account of the contract.”

The record is devoid of evidence that the appellant made any such disclosure, and the inference is that, to the extent to which she was interested, the plaintiff’s assignor was to treat the wife as dealing upon her individual credit. The question as to whom credit was given was one of fact (Story, Ag. §§ 279, 280; Graham v. O’Neil, 2 Hall, 474; Meeker v. Claghorn, 44 N. Y. 349; Coal Co. v. Edwards, 4 Hun, 432; Cobb v. Knapp, 27 Am. Rep. 51; Wells, Law & F. §§ 60, 113), and was decided adversely to the appellant. Indeed, when the inferences to be drawn from the testimony are not clear and incontrovertible, and men of ordinary judgment might differ as to its significance, it is the exclusive province of the jury to pass upon the questions involved. People v. Conroy, 97 N. Y. 62; Thurber v. Railroad Co., 60 N. Y. 331; Powell v. v. Powell, 71 N. Y. 71; Hart v. Bridge Co., 80 N. Y. 622; Payne v. Railroad Co., 83 N. Y. 572.

The judgment must be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: BISCHOFF, J. McADAM, J.’

license: Public Domain

text:
    Patrick Gilfoyle v. Daniel C. Cahill et al.

    (Supreme Court, Appellate Term, First Department,
    September 28, 1896.)
    Landlord and tenant—Tenancy from month to month.
    A finding of a tenancy from month to month is sustained by evidence that the parties entered into an oral agreement for a lease of the premises for five years and six and a half months commencing October 15,1895, the tenant to pay monthly in advance a certain rental until Hay 1, 1896, and a certain greater rental for the balance of the term, and that, pending tlie execution of the agreement in writing, the lessee, with the lessor’s content, entered into possession of the premises, and remained in possession several months, paying rent at the agreed rate.
    Appeal from Eighth district court.
    Action by Patrick Gilfoyle, as assignee of Albert I. Sire against Daniel C. Cahill and Dennis P. Cahill to recover a month’s rent for certain premises in New York City. There, was a judgment in favor of plaintiff, and defendants appeal.

      Albert J. Appell, for appellants.
    Albert I. Sire, for respondent.
   BISCHOFF, J.

The action was for a month’s rent from April 15, 1896, to May 15, 1896, at the rate of $45 per month to May 1st, and $55 per month to May 15th,—in all, $50,— the claim of $47.50 having been explained to háve been an eiror in computation. There was testimony for the defendants to the effect that in November, 1895, the previous oral agreement hereinafter to be alluded to was modified by limiting the letting to May 1, 1896, at a rental payable monthly in advance, and at the rate of $45 per month. This was denied however by testimony for the plaintiff, and upon the conflict which thus ensued we must conclude, consistently with the judgment, which was for the full amount claimed, that the facts were determined adversely to the defendants. "

The facts which appeared from substantially unchallenged evidence upon the trial were that some time in September, 1895, Albert I. Sire, the plaintiff’s assignor, and the defendants, entered into an oral agreement, the former to let the store and a part of the basement of the premises 189 West Tenth street, in the city of New York, for the term of 5 years and 6 1-2 months, commencing October 15, 1895, and the latter to pay, monthly in advance, a rental at the rate of $45 per month until May 1, 1896, at the rate of $55 per month until May 1, 1897, and at the rate of $60 per month until May 1, 1901, the end of the term; that, pending the execution of the agreement in writing, the defendants, with Sire’s consent, entered into possession of the premises on September 30, 1895, and so continued until April 30, 1896, on wrhich day they vacated and abandoned the same, having meanwhile paid the rent, as orally agreed, up to April 15, 1896, and refused to executed the proposed written lease when it was submitted to them for such purpose. Upon this state of the facts it was contended for the defendants that the lease for more than a year, not being in writing, was void, under the statute (2 Rev. St. [Banks & Bros.’ 9th Ed.] p. 1885, § 9); that, owing to the invalidity of such oral lease, their possession of the premises was, at most, under an agreement which did not “particularly specify” the duration of the right of possession; hence, that such last-mentioned agreement, being in respect to premises in the city of New York, expired on the 1st day of May next succeeding the day of their entry into possession (2 Rev. St. [Banks & Bros.’ 9th Ed.] p. 1818, § 1), and that they were, if at all, liable only for the value of the use and occupation of the premises from April 15, 1896, to May 1, 1896, —$22.50,—which, amount, with the costs of the action, was paid into court. The judgment in the plaintiff’s favor for the full amount of the month’s rent claimed is, in our opinion, unassailable, the facts being sufficient for the predication of a monthly letting at a rental payable in advance. A monthly letting being established disposes of so much of the defendants’ contention as was to the effect that the agreement expired on the 1st day of May next succeeding the date of their entry into possession, for, obviously, a letting for a month, or from month to month, particularly specifies the duration of the right of possession. Though an oral agreement of lease for more than a year is void, in respect to its intended endurance the provisions therof are .pertiment to the ascertainment of the terms of a lease for less than a year if an agreement to the last mentioned effect is impliedly apparent, or inferable from the circumstances. Thus in Coudert v. Cohn, 118 N. Y. 309, 28 St. Rep 684; possession and payment of rent for upwards of one year under an oral lease for a terms of years, which provided for an annual rental payable in monthly installments, and continuance in possession by the lessee for a part of the second year, was held to be evidence of a lease for such second year; or from year to year; and in Talamo v. Spitzmiller, 120 N. Y. 37, 41, 23 N. E. 981, where there was an oral agreement of lease for five years, at an annual rental payable in monthly installments, in advance, the court said:

“The parol agreement for five years was not effectual to create a tenancy for one year nor did the mere fact that the plaintiff went into possession have that effect. He remained in occupation a part of one year only, and the creation of a tenancy for a year was dependent upon something further. While it is not required that a new contract be made in express terms, there must be something from which it may be inferred, something which tends to show that it is within the intention of the parties. The payment and receipt of an installment or aliquot part of the annual rent is evidence of such an understanding, and goes in support of a yearly tenancy, and without explanation to the contrary it is controlling evidence for that purpose,” citing Reeder v. Sayre, 70 N. Y. 184, and Laughran v. Smith, 75 N. Y. 209.

The case at bar is squarely within the ruling of the Talamo Case, and differs from the Coudert Case only in respect to the duration of the implied lease. We have the facts of an oral understanding of the parties that the premises should be occupied by the defendants at a rental, commencing on the 15th day of the calendar month at the rates hereinbefore mentioned, and payable monthly in advance; the entry and continuance of the defendants in possession of the premises for six months, and a part of the month for ■which the rent sued for was claimed to be due; and the payment monthly in advance of the rent' for each of such six prior months. The facts sustain a finding of a letting by the month, or from month to month (Geiger v. Braun, 6 Daly, 506); that is to say, from the 15th day of one calendar month to the 15th day of the next succeeding one at a rental payable in advance. We must, in support of' the judgment assume that the court below so found.

The continuance, by the defendants, in possession, after the 15th of April, 1896, subjected them to liability for the rent for the month ending on the 15th of May next following, the fact of such continued possession being evidence of a renewal of the term. Schuyler v. Smith, 51 N. Y. 309, 313; 12 Am. & Eng. Enc. Law, 679, sec. 4, and cases in note 4.

Judgment affirmed, with costs.

DALY, P. J. concurs.

McADAM, J.’

(concurring). The agreement, being for a term exceeding one year, was void. 2 Rev. St. (9th Ed.) 1885, sec. 8. If the lessees had declined to enter into possession, they would not have been liable for rent (Edge v. Strafford, 1 Cromp. & J. 391; Inman v. Stamp, 1 Starkie, 12), or if the landlord had declined to let them into possession he would not have been liable (Reed, S. Frauds, §§ 682, 683; Ebren v. Lorillard, 19 N. Y. 299); for a void thing is nothing, and creates neither rights nor duties (Dung v. Parker, 52 N. Y. 494). But where a persons enters as tenant under such an agreement he becomes liable for use and occupation so long as he remains in possession (Thomas v. Nelson, 69 N. Y. 118; Prial v. Entwistle, 10 Daly, 398; Smith v. Genet, 2 City Ct. R. 88 and these cases proceed on the theory that it is difficult to perceive how a contract, declared to be void by the statute,- can be held to be valid for a single hour or upon what principle a tenant entering under a void lease can be compelled, by virtue of the lease to pay for a longer period than he actually occupied (Thomas v. Nelson, supra. The agreement may be used however, to establish the agreed amount of rent, though void as a lease by the statute. Wood’s Mayne, Dam. (1st Am. Ed.) sec 320; Reeder v. Sayre, 70 N. Y. 180; One of the incidents of such a hiring is its con-Arertibility by payment of rent into a tenancy by the month or year and Avliere rent has been paid an agreement for a letting may be inferred from the act, precisely as if no lease beyond the statutory period had been assented to. The cases hold that where the lease is void the period of -occupation and mode of paying rent may determine the 'character of the tenancy as by the month or year. Reeder v. Sayre supra; Laughran v. Smith, 75 N. Y. 205; Blumenthal v. Bloomingdale, 100 N. Y. 558, 3 N. E. 292; Coudert v. Cohn, 118 N. Y. 309; 28 S. R. 684; Talamo v. Spitzmiller, 120 N. Y. 37, 50 S, R. 186; Fougera v. Cohn, 43 Hun, 454; Wilson v. Taylor, 8 Daly, 253. The agreement though oral, and void as to the time and the interest in lands sought to be created, regulates the relations of the parties to it in «other respects upon which the tenancy exists, and may be resorted to for the determination of their rights and duties in all things consistent with and not inapplicable to a yearly tenancy. Reeder v. Sayra, supra, and kindred cases. The defendants remain -in possession until April 30, 1896, after having paid, in accordance with the orginal understanding, rent monthly from October 15, 1895, to April 15, 1896, by reason of which an agreement of hiring consistent with that originally made is implied by the law whereby the defendants became tenants from month to month. Wilson v. Taylor, supra; Gallagher v. Reilly (Com. Pl.) 10 N. Y. Supp. 536. For the payment of rent by the occupier, with reference to a monthly holding, and the receipt of it by the landlord, are evidence of the intention of the parties that •a monthly hiring should be created. The defendants held over and continued in possession after April 15 1896, from Avhich the law implies a hiring for an other month at the •option of the landlord, who might treat them as tenants by .accepting rent or instituting proceedings to recover the rent, or as trepassers by proceeding to remove them for Avrongfully holding over. Haynes v. Aldrich, 133 N. Y. 287; 45 S. R. 243; Adams v. City of Cohoes, 12 N. Y. 175, 182, 387 S. R. 678; Frank v. Railroad Co., 122 N. Y. 197, 218; 33 S. R. 235; Schuyler v. Smith, 51 N. Y. 309. As the right rests on the tenants—breach of duty, he has no election. 1 Wood, Landl. & Ten.(2d Ed.) 33; Wit v. Mayor, etc., 6 Rob. (N. Y.) 451. The tenancy was a definite one by the month—that is from the 15th of one calendar month to the 15th of the succeeding one,—expiring at the end of any month the tenants chose to move or the landlord saw fit to eject them; and notice to quit was unnecessary. People v. Goelet, 64 Barb. 476, 14 Abb. Prac. (N. S.) 130; People v. Shackno, 48 Barb. 551; Gibbons v. Dayton, 4 Hun, 451; Park v. Castle, 19 How. Prac. 29; Adams v. City of Cohoes, 127 N. Y. 175, 183, 38 S. R. 678; Blumenberg v. Myers, 32 Cal. 93. The Molding Avas not of that indefinite character which ended on May 1, 1896, by force of the statute. 2 R. S. (9th Ed.) 1818, sec. 1; Adams v. City of Cohoes, supra, being the latest authoritative decision in reference to notice to quit, must be accepted as controlling upon the subject.

In Laimbeer v. Tailer (Sup.) 4 N. Y. Supp. 589, it appeared that by the orginal lease it was particularly specified that the tenant’s occupation should extend for one year from-November 1, 1871. The court said:

Thereafter she held over, and the law implied a contract on her part to renew the tenancy for a year more on the terms of the first letting. Laughram v. Smith, 75 N. Y. 205. Subsequently she continued to hold over in the same way year af ter year, and as she was still in possession as tenant when theu 1st day of Novenber, 1884, had passed, the law then implied in like manner an agreement in her behalf that her occupation should continue' until November 1, 1885, when she gave up the premises. The contract which thus arose by implication of law specified the duration of the tenant’s occupation just as particularly as the original lease. Hence it did not fall within the scope of the provisions of the Revised Statutes which has been cited relative to agreements for the occupation of lands and tenements in the city of New York, which applies by its terms, soley to agreements wherein there is no particular specification of the duration of the term. It is only such agreements that are declared to be valid until the 1st day of May next after possession thereunder begins.”

A similar ruling, was made in Craske v. Publishing Co., 17 Hun, 319, where a tenant entered under a parol lease for two years and a half from November 1, 1875, and undertook to remove by authority of the statute providing for the expiration of certain leases on May 1st. 2 Rev. St. (9th Ed.) 1818, sec. 1 The court held that the lease was binding until November 1, 1876, on the theory of a yearly tenancy,, for the “statute only applies where no time is agreed upon, which was not the case here.” These cases demonstrate the inapplicability of the statute relied on by the-appellants. I therefore conur for affirmance.


author: BISCHOFF, J.

text:
    Robert Howard v. Metropolitan Life Insurance Co.
    (Supreme Court, Appellate Term, First Department,
    September 28, 1896.)
    Insurance—Conditions of policy—Yalidity.
    A provision in a policy that proofs of deaths shall be made on blank®, furnished byjithe company, and that “ all the contents of such proofs of death shall be evidence of the facts therein stated in behalf of, but not against the company,” is valid.
    Appeal from sixth district court.

      Action by Robert Howard against the Metropolitan Life Insurance Company on two life insurance policies. A judgment in favor of plaintiff wTas rendered by the justice without a jury, and defendant appeals.
    Bert Hanson, for appellant.
    Thomas F. Grady, for respondent.
   BISCHOFF, J.

—This appeal is taken from a judgment awarding to the plaintiff the sums named in two policies of life insurance issued by the defendamt upon the life of one Lizzie Howard, the wife of the plaintiff, he being the designated beneficiary. The defendant pleaded a breach of warranty, and claims that this defense was established upon the plaintiff’s proofs,—the only evidence adduced at the trial,—and that the justice below erroneously denied the motion for a dismissal of the complaint. By the terms of each of these policies the insured had warranted the truth of a statement that she had never been sick, nor attended by a physician, whereas among the proofs of death, received in evidence at the plantiff’s instance, appeared a declaration by one Dr. Simson that the insured had required his attendance for one month at a time prior to the date of policy, when suffering from aneurism of the aorta, from which disorder she afterwards died. Were this evidence unexplained or uncontradicted upon the part of the plaintiff, it would be potent for his defeat, as an admission that there had been a breach of warranty as claimed; but evidence in contradiction of this statement of the physician appears from a paper subscribed by the plaintiff, and forming a part of the proofs of death admitted in evidence wherein it is stated that the deceased had never been sick, and had not at any time been attended by a physician. This, at least, would tend to obviate the effect of the contrary admission, and to authorize a finding that no admission had been intended, if the trial court saw fit so to find. Goldschmidt v. Insurance Co., 102 N. Y. 486, 2 S. R. 421. No-other evidence in support of the defense was furnished and but for a condition contained in the second policy, and next to be noticed, we should not be justified in disturbing the judgment. This condition provided as follows:

“Proofs of death, under this policy, shall be made upon blanks furnished by the company, ® ® * All the contents of such proofs of death shall be evidence of the facts therein stated in behalf of, but not against, the company.”

Such a condition is not invalid in its nature, it being competent to the parties to agree as to the effect which a certain form of evidence shall have in determining questions arising ■between them. See Gallagher v. Railroad Co., 14 Daly, 366. And in the present instance the condition was expressed in the most unmistakable terms. As to this second policy, therefore, the admission of a breach of warranty appears without question, since, but for the favorable statement ■contained in the proof of loss the plaintiff adduced no «evidence to contradict that admission, and the recovery upon such policy is properly assailed. We may not however affirm judgment as to the first policy, and reverse it as to the 'second, the action and recovery having proceeded upon both claims jointly. Canavan v. Stuyvesant, 7 Misc. Rep. 113, 57 S. R. 513; Goodsell v. Telegraph Co., 109 N. Y. 147, 15 S. R. 73. And a new trial of the issues arising upon both causes of action must necessarily result, unless the respondent shall abandon the second cause of action.

Judgment reversed and new trial ordered with costs to appellant to abide the event unless the respondent shall stipulate, within 20 days after the entry of the order herein, to abandon his second cause of action, in which event the judgment, reduced by the amount of the recovery upon the second policy, is affirmed, without costs.

All concur.


author: McADAM, J.

text:
    Fannie E. Carrere v. Robert G. Dun.
    (Supreme Court, Appellate Term, First Department,
    September 28, 1896.)
    Evidence—Declarations or agent.
    Defendant, who was a member of a firm, requested one Q., the bookkeeper of the firm, to go over defendant’s individual books. G-. replied that he was busy with other matters, and would rather have plaintiff, a subordinate bookkeeper, do it. Defendant said he had no objection, and ©. told plaintiff what had occurred. Plaintiff went over the books and made a statement showing the result. The only direct communication between plaintiff and defendant was that defendant gave plaintiff two papers to use in making up the statement. There was no evidence that G-. was a general agent of defendant. Held, that it was no error to admit in evidence statements made by G-. to plaintiff to the effect that defendant would pay extra for such services, and it was immaterial that plaintiff worked on the books on holidays and in the evenings, where defendant was not aware of that fact.
    Appeal from city court of New York, general term.
    Action by Fannie E. Carrere against Robert G. Dun. A judgment in favor of plaintiff was affirmed by the city court (40 N. Y. Supp. 372), and defendant appeals.
    Douglass & Minton (J. B. A. Mullally, of counsel), for appellant.
    James A. Gray, for respondent.
   McADAM, J.

The action is by the plaintiff as assignee ■of William Carrera, to recover for services alleged to have been rendered by him in going over certain books of the defendant and making up a statement therefrom. The defense relied upon was no employment, and the absence of any agreement on the part of the defendant to pay for the services rendered.

These are substantially the facts: William Carrere was an accountant, employed by E. G. Dun & Co., of which firm the defendant was senior menber. The defendant wanted some of his individual books gone over, and requested Mr. Greene, another of the firm’s employes, to do the work, Greene replied that he was so busy with other matters that he would rather Carrere, would do it. The defendant said he had no ■objection, whereupon Greene went to Carrere and told him what had occurred. Carrere examined the accounts and made out a statement showing the result which was furnished to Greene, and by him delivered to the defendant. While the work was going on the defendant inquired how it was progressing and gave Carrere two slips of paper, one ■containing 21 items, and the other 25 names, relating to the particular accounts about which the defendant wanted information. This is all that passed between Carrere and the ■defendant. The former then had the opportunity to make known that he expected extra pay, but not a word was said about extra compensation or doing the work out of business hours or away from the place of business so that there was nothing from which the defendant could infer that any ■claim for extra pay would be made.

The facts disclosed fail to establish a cause of action. To hold that the circumstances stated implied an independent obligation on the part of the defendant to pay for the work done Avould be "unprecedented. In almost every firm each member has individual books or accounts, and conducts more or less correspondence, and it Avould be a startling proposition that, if he requests one of the firm employes to write up his books, copy a letter, make a deposit in bank or deliver a message, there is an implied obligation to pay employe therefor in addition to his regular compensation from the firm. Yet that is Avhat the court must decide in order to sustain this judgment. Carrere was not an occasional, but a regular employe of the firm, engaged at an annual salary of $2,000, and his duties required him to do whatever Arork upon books or accounts the firm required of him. The fact that the work in this instance Avas on the private accounts of one of the firm makes no difference in the legal result for any member had the right to command his services within the scope of his employment. In order to be entitled to extra compensation, the service must be such as the servant is under no obligation to perform; for, Avhere a person "is bound to do an act and his duty either at law or under a contract is fixed, a promise to pay an increased rate of compensation for doing what his duty requires him to do is a nudum pactum, and void for want of any consideration to support it. Wood, Mast. & Serv. (2d Ed.) p. 174.

The plaintiff also proved that part of the work was done away from the place of business of the firm on evenings and Sundays, but the case is destitute of evidence that there Avas any knowledge on the part of the defendant that the Avork Avas so done. An employe cannot, by taking work home Avhich ought to have been done at the employer’s place of business during business hours, conjure up a claim of extra pay. There must be some request on the part of the employer to depart from the customary course, or some approval thereof on his part, before he can be charged Avith impliedly contracting for extra compensation. Presumptively, the annual salary of an employe is the measure of his compensation for all work done by direction of the firm, acting through its individual members; and in order to rebut this presumption it must affirmatively appear that the AArork directed is so far out of the usual course or is to be performedat or in such an anusual time or manner, that the law can safely imply that, in the nature of things, both parties must have known and therefore contemplated that extra compensation must follow as of course.

Wood in his work on Master and Servant (2d ed. § 86) says:

“But in any event if a servant employed for a term is required to labor an unreasonable number of hours each day or to perform labor upon the Sabbath, he cannot recover anything for extra work during the term, unless there AAras an express promise to pay him therefor. His remedy in case he is required to labor an unreasonable number of hours for a day’s work, is to quit the service. If he does not, he can make no claim for extra compensation, unless it AAras promised to him by the master. All services rendered under a contract are deemed as having been included in it.”

See, also, Smith, Mast. & Serv. (3d Ed.) 160; McCormack v. City of New York, 14 Misc. Rep. 272.

“The general rule is that a contract Avill be implied only where there is no express contract. ‘Expressum facit cessare taciturn.’” Story, Cont. (5th Ed.) § 18.

The plaintiff attempted, but failed, to prove an express contract to pay, and her right to recover rests solely upon the implications which flow from the facts proved, and these do not establish a right to extra compensation. To establish her case, the plaintiff undertook to sIioav that Greene kneAV that the work was done away from the place of business and that the latter had gone so far as to agree that extra compensation would be allowed. The plaintiff's assignor, after testifying that Greene told him that the defendant requested that he should make out his private account, was interrogated as follows;

“Q. Now what reply, if any, do you make to that ? A. I told him [Greene] I would not do it except for pay, —additional pay,—and he and I agreed. Q. What did you say, and he say? A. He said I should be paid for it additional.”

This, as well as all evidence of a similar character, was in every instance objected to upon the ground that Greene’s declarations could not bind the defendant. The various objections were overruled under exceptions specifically taken. There is nothing in the record proving that Greene was a general agent of the defendant, and the only inference deducible from the testimony is that he was a special agent concerning the particular object in view.

"The distinction drawn by Paley is that an authority is general or special with reference to its object,—i. e. according as it is confined to a single act, or is extended to all acts connected with a particular employment. Story adopts the same distinction. A special agency properly exists where there is a delegation of authority to do a single act. A general agency properly exists where there is a delegation to do all acts connected with a particular trade, business, or employment.” Ewell, Evans, Ag. 135.

In case of a special authority, the agent’s power is directly derived from the principal, and limited accordingly (Id); and if it is transcended the the principal is not bound. (Story, Ag. § 126).

Greene and Carrere were fellow bookkeepers, and, though the former was in a degree the latter’s superior, there is nothing in the position he held that carried with it the idea of a general agency for the defendant, one of his employers, or that gave him implied authority from the defendant to contract with fellow workmen for extra compensation. He did not assume to deal with Carrere on the basis of possessing such authority, for the very nature of the transaction disclosed to the plaintiff’s assignor that in this particular instance he was doing nothing more than delivering a message to a fellow clerk from one of their common employers. As Greene had no authority to contract for extra compensation, his declarations in respect thereto were inadmissible to charge the defendant. An agent may undoubtedly, within the scope of his authority, bind his principal by his agreement, and in many cases by his acts. What an agent has said may be what constitutes the agreement of the principal; but, until there is some proof of authority upon the part of the so-called agent, all declaration of his must be rejected as incompetent. People v. Parish, 4 Denio, 153; Howard v.. Norton, 65 Barb. 161; Cow. Treat. § 159. Where such evidence is admitted on the promise of counsel to supply the-proof of authority subsequently, and the evidence required is not given, it has been held to be reversible error. Snook v. Lord, 56 N. Y. 605. Other cases hold that the aggrieved party should not rely wholly upon the exception taken at the time, but if, when the evidence is all in, the connecting' links are not supplied, he must move to strike out the objectionable evidence. Baylies, Trial Prac. 208; U. S. Vinegar Co. v. Schlegel, 143 N. Y. 62, S. R. 826. There was no-attempt to supply the missing link, and the defendant following the practice stated, moAred to strike out Greene’s alleged declarations on the ground that they were not connected with the defendant, and no authority to make them had been shoAvn. This motion was denied, and an exception taken.

The objections made to the admission of Greene’s declarations Avere Avell taken, and the exceptions to the rulings admitting them and to the denial of the motion to strike out, are fatal to the judgment. If any fact material to the interest, of either party rested in the knowledge of the alleged agent it AA’as to be proved by his testimony, not by his mere assertion. Tayl. Ev. § 540; 1 Greenl. Ev. § 114. Greene was finally called by the defendant, and denied that he had any authority to contract for extra compensation, or ever did so contract, or that he knew of any fact or thing calculated to-create or justify any claim for extra pay.

In Grath v. Howard, 8 Bing. 453, Tiudale, C. J., observed

“It is dangerous to open the door to declarations of agents, beyond Avlial the cases have already done. The declaration itself is evidence against the principal, not given upon oath. It is made in his absence, when he has no opportunty to set it aside, if incorrectly made, by any observation, or any question put to the agent; and it is brought before the court and jury frequently after a long interval of time. It is liable, therefore, to suspicion originally, from carelessness or misapprehension in the oi'iginal hearer, and again to further suspicion from the faithlessness of memory in the reporter, and the facility Avith which he may give an untrue account. Evidence, therefore, of such a nature ought always to be kept Avitliin the strictest limits to Avhich the cases have confined it.”

In 2 Phil. Ev. (Cowen, Hill & Edwards’ Notes) p. 507, the author, in referring to the above observation, says, “There is less necessity for resorting to such evidence in the case of living agents” Avhose testimony may be procured; and, in summarizing the authorities in regard to the admission of that class of evidence (Id., p. 513), adds, “But it seems to be a more simple rule, with respect to admissions, that they are only receivable when there was authority to make them.”'

That Carrere had any real claim against the defendant would seem at least doubtful on a careful reading of the printed ease from which it appears that he v/as in great need of money, and was importuning the firm to assist him in consequence of certain private troubles; that it did assist him; that he executed to it a general release of all claims, never-suggesting the existence of the demand which forms the subject of this suit until had been discharged by the firm, and all chance of making further appeals to its generosity was at an end.

The plaintiff urged that, as the defendant made no request to direct a verdict in his favor, he consented to the submission of the cause to the jury, and cannot now complain of the result. The defendant made his legal objections as the-trial progressed, and as they were decided against Trim he took the exceptions necessary to .preserve his right to review them, and the subsequent submission of the cause, followed by the verdict rendered, did not eliminate these questions from the case, so as to prevent their examination. It is not the usual case wherein the affirmance by the general term of the city court prevails us from reviewing the facts or passing on the weight of evidence, but one where the proofs fail to make out a cause of action, thereby presenting a question of law which we are bound to pass upon. Davis V. Spencer, 24 N. Y. 386, 390; Brush v. Lee, 36 id. 49; Draper v. Stouvenel, 38 id. 219; Marvin v. Inglis, 39 How. Prac. 329c

It follows that the judgment appealed from must be reversed, and a new trial ordered, with costs to the appellant to abide the event.

All concur.


author: HATCH, J.

text:
    O’Brien et al. v. Whigam et al.

    (Supreme Court, Appellate Division, Second Department,
    October 6, 1896.)
    1. Fraudulent conveyances—Subsequent purchasers.
    A conveyance will be set aside as fraudulent where it is made for the purpose of placing the grantor’s property beyond the reach of persons who might subsequently become his creditors.
    3. Same—Existing creditors.
    A landlord is an existing creditor of his tenant as to rent to become due under the lease, and therefore a voluntary conveyance by the tenant may be set aside, and the property so conveyed subjected to the landlord’s, claim for rent which falls due after the conveyance.
    A upeal from special term, Kings county.

      Action by Ella L. O’Brien and another against Bertha E. Whigam and another. There was a judgment in favor of plaintiffs, and defendents appeal.
    Frank Gardner, for appellants.
    Francis R. Whitney, for respondents.
   HATCH, J.

—Thisis a judgment creditor’s action, which asks to have set aside, as fraudulent, a conveyance made by the judgment debtor. Plaintiffs are the owners of certain premises, which, at the time when they acquired title, were leased to the defendant Whigam for a term of five years, at the annual rental of $2,100. This lease provided for a renewal at a rental to be agreed upon, and, in the event of failure by the parties to agree, the sum was to be determined by arbitrators, as provided therein. The lease expired in 1894, and, the parties being unable to agree, arbitration fixed the yearly rental at $2,300. The defendant Whigam continued under this lease until February, 1895, when she was dispossessed for nonpayment of rent. On the 2d day of November, 1893, she transferred all her property, consisting of several pieces of real estate, to her sister, the defendant Catharine Etzel. A nominal consideration of one dollar for the transfer was expressed in the deed. The deed was not recorded until the 17th day of May, 1894. There, was a failure to pay rent under the reneAved lease, and judgments were recovered therefor in the aggregate sum of $1,580.37, on the 13th day of July, 1894, and the 29th of March, 1895, respectively. The court beloAV found that the transfer of the real property by the defendant Whigam was in fraud of plaintiff’s rights, and adjudged the same void. It Avas not essential to the maintenance of this action that the defendant Whigam should have been indebted to the plaintiffs at the time when she made the transfer of her property. If she, in fact, made the transfer intending thereby to place her property beyond the reach of those who might subsequently become her creditors, the transfer becomes void as to them, as well as to those Avho had subsisting obligations at the time the transfer was made. King v. Wilcox, 11 Paige, 589.

At the time when this conveyance was made, there was a subsisting lease, the privilege of renewal existed, and whether it should be renewed or not was at the option of the lessee. She having exercised that option by a renewal, there was at all times an existing, continuing liability upon her part to pay the rent secured thereby. This condition constituted the plaintiffs creditors, AA’illiin the meaning of the statute, at the time the transfer was made. Young v. Heermans, 66 N. Y. 374; Anderson v. Anderson, 64 Ala. 403; Bump, Fraud. Conv. §§ 501-506. In either aspect of this case, the plaintiffs are to be treated as credtors having a standing to attack this conveyance. Savage v. Murphy, 34 N. Y. 508; Cole v. Tyler, 65 N. Y. 73.

The evidence warranted the finding of the fraudulent intent in making the conveyance. It is needless to examine and set out in detail each particular fact which authorized the finding of the fraudulent intent. The main features are found in the fact that defendant Whigam was conducting a losing business upon the leased premises. There appeared to be no necessity for the conveyance, as the sister was not pressing for payment, assuming the debt existed, and was not aware of the conveyance at the time it was made. The deed expressed a nominal consideration only, and was withheld from record for a considerable period after its execution, and was only placéd thereon shortly before an installment of rent fell due. The court might well say that the consideration for the deed, which was subsequently asserted, ivas an afterthought. It is quite clear that the sum claimed for AATages to the sister Avas extravagantly large. No contract Avas ever made to pay her Avages, and nothing was ever paid to or demanded by her on account thereof. The circumstances attending the creation of this claim authorized its entire rejection. If, hoAvever, full effect Avas given to the Avhole consideration claimed, it still failed of being adequate for the property conveyed, upon a conceded valuation, by between five and six thousand dollars. Within the authorities cited, the court Avas clearly authorized to make the finding Avhich it did. Fuller v. Brown, 76 Hun, 557, 58 S. R. 249; Smith v. Reed, 134 N. Y. 568, 48 S. R. 156.

The judgment should be affirmed, with costs.

All concur.


text:
    William C. Platt et al. v. New York & S. B. Ry. Co. et al.

    (Supreme Court, Appellate Division, Second Department,
    October 6, 1896.)
    Railroad companies—Mortgages—After-acquired property.
    Under Laws 1850, c. 140, § 10, authorizing railroad companies to borrow money in advance to build their roads and to issue bonds therefor secured by a mortgage on their franchises and property, a mortgage made by a railroad company for such purpose covers after-acquired chattels, and the rule that a mortgage purporting to cover chattels to be thereafter acquired is only an agreement to give a lien on them as they are acquired does not apply.
    Appeal from special term, Kings county.

      Action by William O. Platt and another, as trustees, against the New York & Sea Beach Bailway Company and Sophia M. Onderdonk, to foreclose a mortgage. From an ozxlez- denying the petitiozz of August Meidlizzg, Jr., a judgznezit creditor of defendazzt railway cozzipazzy, to vacate an order appoñiting a receivez-, azzd also a judgment ezzteredin the actiozz, or to znodify the sazne, petitioner appeals.
    Joseph Wamsley, for appellant.
    Frederic A. Ward, for respondent James T. Nelson, receiver.
    Thomas J. Sanson, for respondents Platt and Mann.
   HATCH, J.

—The validity of the mortgage is not cozztrovertéd. But it is claimed that under it no lien was acquired upozi the personal property purchased subsequent to its executiozz as against the petitiozzer herein. That the lien should attach to after-acquired property is withizz the express terms of the zzzortgage, and it is not disputed that such is its effect as between the parties thereto. By the provisions of the statute (Laws 1850, c. 140, sec. 10), azzthority was cozzfez-red to mortgage the corporate property azzd frazzchises for the purpose of coznpletizzg, furnishing, or operatizzg the railrqad; azzd this authority has beezi continued izz the same langzzage zzzider the revisiozz of the railroad law (Laws 1892, c. 676, sec. 4. subd. 10). The statute cozzteznplates that it zzzay be necessary to borrow money for the puz-pose of the physical creation of the road azzd putting it in operatiozz. It is quite evidezzt that izz the accoznplishmezit of this puz-pose pz-operty would be created and acquired that had no actual or potezztial existezzce at the time whezz the loazz was made azzd the zzzortgage given. It is the usual course of procedure in the construction of a railroad that znozzey raised by zzzortgage upon its pz-operty, and that the strzzctzzre is built and opez-ated to a laz-ge extezzt by zzzeazzs of the loans thus obtaizzed, and much of the propez-ty is created and acquired after the loazz is znade. The statute zzzalces no distizzctiozz betweezz property necessary for the completion and fuz-zzishing of the road azzd that which is essezztial to its opez-ation. By the terms of the law, therefore, it was cozzteznplated that for the money thus obtained the.property acqzzired should be pledged as the security for its payzzzent, azzd this cannot be accoznplished without holding that the lien of the mortgage attaches to such property as shall be necessary for that puz-pose, whether izz existence at the tizne whezz the mortgage is givezz or is sizbseqzzently acquired, and whether such property be such as is denominated “real” or “personal.” So it was early held that such a mortgage created, in equity, a lien upon property subsequently acquired superior to the lien of a subsequent incumbrancer by mortgage or judgment. Seymour v. Railroad Co., 25 Barb. 284; Benjamin v. Railroad Co., 49 Barb. 447; Stevens v. Watson 4 Abb. Dec. 302. In those cases the question arose respecting liens upon subsequently acquired real property. But the discussion shows that the court considered the rule applicable as well to personal as to real property. Such has been the uniform rule applied in the federal courts. Mitchell v. Winslow, 2 Story, 630, Fed. Cas. No. 9, 673; Trust Co. v. Kneeland, 138 U. S. 419, 11 Sup. Ct. 357. The difficulties which have arisen relate not so much to the recognition of the mortgage as a lien, for the doctrine of the above cited cases has never been questionéd, but rather to the steps necessary to be taken to evidence the lien. The first debate arose over the question whether the rolling stock and equipment of the road retained its character as personal property, and, if so, was it requisite that it should be filed as a mortgage of chattels. The supreme court divided upon the question and decisions were rendered both ways. The court of appeals in Hoyle v. Railroad Co., 54 N. Y. 314, settled the question by holding that it was personal property, and that the mortgage covering it must be filed as a mortgage of chattels, as prescribed by the act of 1833, or the same would be void as against the general creditors of the corporation. To meet this conclusion, the legislature in 1868 passed an act (Laws 1868, c. 779), providing that it shall not be necessary to file such mortgage as a mortgage of chattels when it covers real and personal property, and is recorded as a mortgage of real estate in each county in or through which the railroad runs. By this act the status of such property, so far as it relates to liens by way of mortgage, is made practically subject to the same rules, and is placed upon the same footing, as real property. The business carried on by railroads, the great extent of territory which they cover, and the fact that the rolling stock is at all times widely distributed, not only throughout the state through which its lines mainly run, but also throughout the different states of the Union, creates an essential difference between it and property whose situs is practically fixed.

This, coupled with the necessity Avhich exists for certainly of security to those advancing money, usually in very large amounts, upon the faith of railroad property, and the prnc0 tical difficulty, if not impossibility, of a railroad being able to realize upon its property in this manner, if the teoh- . nical rules respecting liens upon personal property should oblain, evidently created an intent in the mind of the legislature to make such.property subject to the same rules, so far as practicable, as apply to liens upon real property. It is quite "evident that if it should be held necessary to constantly revise such a mortgage, in order to cover what has been, it may be, purchased by the money advanced or to supply the operating needs, and replenish what is destroyed, it would render such security so doubtful and precarious as not only to impair, but to practically destroy its value. We can see no reason for drawing a distinction in this regard between real and personal property. On the contrary, as the authority for the mortgage of both is derived from the same source, and the same reasons exist why both should be available and answerable as security, we think it more in harmony with the legislative intent to subject it to the same rules. New York Security and Trust Co. v. Saratoga Gas & Electric Light Co., 88 Hun, 569; 68 S. R. 55. This view does not bring us in conflict with Rochester Distilling Co. v. Rasey, 142 N. Y. 570, 60 S. R. 284. That case proceeded upon the well-settled legal rule that a mortgage of chattels having no actual or potential existence when the mortgage was given is void as to intervening creditors. For reasons already stated, that rule has no application to a mortgage of this character.

It follows that the order appealed from should be affirmed, with $10 costs and disbursements.

All concur.


author: CULLEN, J.

text:
    Dwight H. Olmstead v. Frederick B. Latimer et al.

    (Supreme Court, Appellate Division, Second Department,
    October 6, 1896.)
    1. Heirs—Liability for mortgage debt of ancestor.
    Under 1 Rev. St. p. 749, § 4, which makes mortgaged property primarily liable for the mortgage debt on the death of the mortgagor, the holder of a mortgage cannot sue the heirs of the deceased mortgagor until he has first exhausted his remedy against the mortgaged premises.
    2. Same—Short statute of limitations.
    Code Civ. Proc. § 1822, which provides that an action on a claim against a decedent which lias been presented to and rejected by the executor or administrator must be brought within six months after the rejection, does not apply to an action to enforce the liability of heirs for a debt of their ancestor, where the claim was not presented to the administrator.
    3. Same—Conveyance by heirs.
    Heirs of a decedent mortgagor who convey tlieir interest in the mortgaged premises to their co-heir do not thereby become pers- nally liable for the mortgage debt, though the deed is not made subject to the mortgage.
    4. Contracts—Consideration—Extending time of payment.
    An agreement between a debtor and creditor that the time of payment of the debt should be extended is supported by a sufficient consideration, as it may be advantageous to the creditor to continue the investment.

      Appeal from special term, Kings county.
    Action by Dwight H. Olmstead, as trustee, against Frederick B. Latimer, Brainard G. Latimer, and Henry A. Latimer, to foreclose a mortgage on property in the city of Brooklyn, executed by John Gr. Latimer, deceased, and to charge defendants, as heirs at law of the mortgagor, for any deficiency which might arise on the sale to the extent of the value of the real estate of the mortgagor which descended to them. The trial judge gave judgment of foreclosure and sale, holding defendant Frederick B. Latimer to be liable for 16-75 of any deficiency that might arise on the sale, and relieving the other two defendants of any liability whatever for such deficiency. Judgment was entered accordingly, and plaintiff and defendant Frederick B. Latimer appeal.
    Charles D. Ridgway, for plaintiff.
    Joseph A. Burr, for defendants.
   CULLEN, J.

—In August, 1878, one John G. Latimer executed his bond, with a mortgage on a lot and building on Atlantic street, Brooklyn, to secure the sum of $18,000, borrowed by him. The plaintiff subsequently acquired that bond and mortgage. In 1884, Latimer died intestate, seised of the mortgaged premises, leaving a widow and four brothers (the three defendants and one James D. Latimer) his only heirs at law. Letters of administration were issued on the estate of John G. Latimer, and upon the settlement of the estate it appeared that the personal estate was exhausted by the payment of the debts and expenses of administration, leaving a deficiency in the amount due for administrator’s fees. The deceased left real estate of considerable value. During 1888 and 1889 three of the brothers conveyed to the fourth, the defendant Frederick B. Latimer, all their interest in the mortgaged premises. On October 15, 1891, the plaintiff and the defendant Frederick B. Latimer executed the following agreement:

“We agree that the time for the payment of the bond and mortgage for $18,000, on 201 and 203 Atlantic avenue, Brooklyn, made by John G. Latimer to the executors of Noah T. Pike, and recorded in the register’s office of Kings county in Liber 1,425 of Mortgages, page 17, August 24, 1878, being the date thereof, shall be, and hereby is, extended to May 1, 1895, subject to the same terms and conditions, including tax, insurance, and interest clauses, as at present.
“Dated New York, October 15, 1891.
“DWIGHT H. OLMSTEAD,
“Executor and trustee under Will of Noah T. Pike.
“F. B. LATIMER.”

In April, 1892, a fire occurred in the buildings on the mortgaged premises, by which they were partially injured. In an attempt to restore the buildings, they collapsed and became a total loss. By this accident, the value of the mortgaged premises fell below the amount of the mortgage. Thereafter the plaintiff instituted this action to foreclose the mortgage, and hold the defendants, as heirs at law of the original bondsman and mortgagor, liable for any deficiency. The trial court held the defendant Frederick liable for 16-75 of any deficiency, and the other defendants not liable. From this decree, the plaintiff and the defendant Frederick appeal; the former seeking to hold all the defendants, the latter to be relieved from liability.

It is not disputed that the defendants are liable on the obligation of their ancestor,. unless either the conduct or dealing of the plaintiff with the bond and mortgage in suit has discharged them; nor is any point raised against the right to enforce such liability in this action. The claim of the defendants, that they have been discharged from liability, is based on the fact that the plaintiff tried to present any claim to the administrator before the settlement of the estate. Under our statute (1 Rev. St. p. 749, § 4), upon the decease of the mortgagor, the mortgaged property became primarily liable for the debt. After that, and for any deficiency, the personal estate was next liable. Then, and only in case the personal estate was insufficient, the heirs at law were liable to the extent of their inheritance. Before the creditor can resort to the personal estate of the testator, he must first exhaust his remedy against the land, and look to the general estate of the bondsman only for the deficiency. Johnson v. Corbett, 11 Paige, 265; Hauselt v. Patterson, 124 N. Y. 349, 36 S. R. 354. This, we think, is also true of an attempt to proceed against the next of kin or heirs at law, although there is no authority to the contrary. Roosevelt v. Carpenter, 28 Barb. 426. On these premises, the defendants contend that, as plaintiff could have no claim against the administrator until he foreclosed the mortgage, it was his duty to have foreclosed it during the period prescribed by law for the presentation of claims against the estate; that, had the mortgage then been foreclosed, there would have been no deficiency, as during that time the prop■erty Avas ample to satisfy the mortgage; and. that, by his failure so to act, the plaintiff discharged the estate of the bondsman from any claim. The fault of this argument lies in the assumption that a claim against a deceased person must be presented to the administrator during the advertised period, or otherwise is barred. Such is not the statute. If the creditor fails to present his claim in time, the administrator is not chargeable with assets he may have paid in satisfaction of debts or have distributed. Code Civ. Proc. § 2718. This is the only effect of such a failure. Id., § 1837. The creditor may wait as long as he pleases, provided he keeps Avithin the statute of limitations, and then proceed against the next of kin or heirs at law, if there be a deficiency in person. The case of Selover v. Coe, 63 N. Y„ 438 is not in point. There the creditor did present his claim to the administrators. It Avas rejected by them, and the claimant failed to bring his action within six months, as prescribed by the statute. This short statute of limitations Avas held to bar all actions to collect the claim, and such rule is now expressly enacted by the Code (section 1822). But to a claim not presented to the administrator this rule has no application. We think it clear, therefore, that, before the defendants transferred the title to the mortgaged premises, they all remained liable proportionately for any deficiency that might arise on the mortgage debt.

Before we discuss the effect of the agreement betAveen the plaintiff and the defendant Frederick, there must be first determined the effect of the conveyances to Frederick fi om his co-defendants. These conveyances are not recited in full in the record. It is there stated": “These deeds AA-ere for the consideration of $1 each, and there is no reference in any way therein to the mortgage.” From this we assume that the deeds were grants without covenants. The plaintiff contends that by such conveyances, they being not subject to the mortgage, the grantors became or remained primarily liable for the mortgage debt, and that the land stood only as a surety. In support of this claim, the plaintiff relies on Wadsworth v. Lyon, 93 N. Y. 201. In that case, Louisa Lyon executed her bond and mortgage on certain lands for the sum of $4,000. She afterwards coirveyed the land, by quit claim deed, for $10,000, its full A'alue, to Mrs. O’Day. The deed in no Avay referred to the mortgage. It was held that Mrs. Lyon remained primarily liable on her bond, and the land Avas only security for the debt. It will be seen that in this case, before the coirveyance, and while the lands were held by Mrs. Lyon, her bond Avas the primary liability and the mortgage was only a collateral security. As the grantee neither took subject to the mortgage, nor agreed to pay it, it was held that the conveyance worked no alteration in the original relation in which the bond and the mortgage stood towards each other. This is the ground on which the decision proceeded. But that rule does not apply where the grantor is not primarily liable personally. In Wilbur v. Warren, 104 N. Y. 192, 5 S. R. 602, Warren acquired directly from a mortgagor 90 acres of land, subject to a mortgage of $2,400, which Warren covenanted to pay as a part of the consideration. Warren, after having paid $1,400 on the mortgage, conveyed the premises to his daughter Wilbur for $1, by deed with full covenants, but which in no way referred to the mortgage. It was held that the covenant by Warren to pay the mortgage did not make that debt his own; that the liability was auxiliary, not primary; and that hence, despite the fact that the conveyance was not subject to the-mortgage, nevertheless, as between the grantor and grantee the land conveyed Avas the primary fund out of Avhich to-discharge the debt. In the case before us the heirs at laAV occupied a double relation to the mortgaged property: First, as inheriting the mortgaged property; secondly, as inheriting other real estate from the deceased mortgagor, and liable in contingencies for the latter’s debts. In the first relation the provision of the statute (1 Rev. St. p. 749, § 4) did not create a personal liability for the mortgage debt, but Avas designed to make the land primarily liable. Hauselt v. Patterson, 124 N. Y. 357, 36 S. R. 354. In the second relation, that of heirs at law to the general creditors of their ancestor, the liability to pay was both dependent on contingency and limited in amount. In neither relation did the personal obligation of the heirs become the primary obligation of the creditor, but the land, even while the title-stood in all the heirs, was primarily liable for the debt. Hence, when it was conveyed by three of the heirs to the-fourth, the land still remained the primary fund, though the conveyances did not refer to the mortgage, and from the time of the conveyances the grantors stood as sureties only.

We now reach the conclusion whether the dealings betAveen the plaintiff and the defendant Frederick have discharged the other defendants. It is settled by authority that mere indulgence or delay granted the principal debtor does not discharge the surety. To discharge a surety, there must be an agreement for extension valid as resting upon a sufficient consideration. The only consideration for the extension in the present case is that expressed in the instrument,—the promise of the debtor that the mortgage should not become due until May 1, 1895; in other words, the mutual promises: that the mortgage should be extended until that time. It has been decided in some cases that this consideration is insufficient, and that the agreement is therefore invalid. The learned trial judge, while accepting the authority of these cases, held that the present case was taken out of the rule by the fact that the defendant Frederick paid interest on the mortgage after the execution of the agreement for extension, and that the plaintiff was estopped by accepting the interest, from denying the validity of the agreement.

Kellogg v. Olmsted, 25 N. Y. Í89, the last of these authorities, Avas decided by a divided court on what was regarded as authority, and not on the reason of the thing. Judge Sutherland said:

• “These cases, then, in effect, decide, if a creditor whose debt is due, in consideration of the payment of a part of it, and of a promise on the part of his debtor to pay the balance on a certain future day, and not before, promises to extend the time of payment of such balance until that day, that such promise is without consideration, and void.”

Judges Davies and Denio dissented, the former saying:

“The question presented for decision is whether the agreement offered in evidence Avas founded on a sufficient consideration. I am unable to see why not. It was undeniably a benefit to the holder of the note to invest his money for a further term of six months at laAvful interest, and it is not clear that it Avas a disadvantage to the defendants to pay that rate of interest for that term. Money lenders regard’ it as advantageous to themselves to loan their money securely and the benefit to them seems to me to be a sufficient consideration for a promise to permit the lender to have it a given length of time, he paying the lawful interest thereon. Such contracts and agreements are frequently made, and the benefit or injury to the lender or borrower depends mainly upon the state of the money market.”

The learned judge cited two authorities in New Hampshire sustaining the proposition contended for by him. If the rule enunciated in this case is not to be gainsaid, the reasoning adopted by the trial court to avoid its effect is probably as effective for the purpose as any that can be formulated. But why should the rule longer obtain? It is. not a rule of property on the faith of which the community has acted. It is clearly in conflict with the interests and conduct of business. Corporation bonds amounting to millions of dollars fall due annually, and are extended by agreement stamped on their face, with no other consideration than that that exists in this case,—the promise of the creditor to extend payment to the day specified, the promise of the debtor not to pay before the time specified, and to pay interest meanwhile. It is often the desire and the interest of both creditor and debtor in mortgage investments to extend the period of investment. The borroAver has nothing more to give, and the lender desires nothing more to exact than the extension, Avhich is of mutual advantage to both parties. There is certainly nothing immoral in such a contract. On the contrary, it is entirely proper, as Avell as most common. Interference by the state Avith liberty of contract is only justified Avhere the contract affects public interests or morals. But here a class of most useful and proper contracts is condemned simply because the court saw fit, many years ago, to announce, not as a matter of laAV, but as a fact, that which, if true A\Then uttered, every intelligent person knoAA’S iioav to be false, to wit, that a promise made by a borroAver to pay at a certain time, with interest, and not before, is not a valuable consideration. The five per cent, mortgage bonds of the Third AArenue Railroad Company, having a long term of years to run, sell today for over 120 per cent. If the bonds were payable now, they Avould be Avorth but par and accrued interest. So the fact that the debtor has agreed not to pay iioaa7, but at a subsequent period, is not only sufficient consideration for the forbearance of the money, but for 20 cents on the dollar of principal in addition thereto. The same thing is true in a greater extent of the obligations of the government, of the state, or responsible municipalities. It is true, there are ways in which this technical rule can be avoided, though it is difficult to do so where there are subsequent liens on the mortgaged property. But why should the community be put to trouble and expense to avoid a technical rule involving neither property rights nor morals, in defense of which nothing logical can be said? Why is it not wiser to no longer recognize the rule?

It seems to us the case of Bank v. Faurot, 149 N. Y. 532, 44 N. E. 166, is entirely applicable to the rule under discussion. It was there held that notes of corporations, though under seal, are not negotiable instruments. Unquestionably, at common law the seal would have taken such instruments out of that class; but it Avas held that the rule was no longer consistent with the course of business in the community, and therefore should no longer prevail. Judge Bartlett there quotes, AATith approval, the saying of Judge Grier, in Mercer Co. v. Hacket, 1 Wall. 83:

“But there is nothing immoral or contrary to good policy in making them negotiable if the necessities of commerce require that they should be so. A mere technical dogma of the courts or the common law cannot prohibit the commercial Avorld from inventing or using any species of security not knoAvn in the last century.”

We think, therefore, the agreement of extension was valid, and discharged the defendants other than Frederick from any liability on the bond.

We think the trial court erred in the proportion of deficiency it imposed on the defendant Frederick. There were four heirs at law, but, instead of charging that defendant with one-quarter of the debt, he was charged with 16-75° The ground of the decision in this respect is that the widow’s dower was ascertained as being worth 11-75 of the testator’s realty, and that each defendant only received one-quarter of the remainder, equal to 16-75. The mistake in this computation arises from the failure to observe that a widow’s dower is no part of the estate of a deceased husband. Chamberlain v. Chamberlain, 43 N, Y. 424r-440. The estate of the husband was but 64-75 of the whole value of the realty, and of this the defendant Frederick inherited a fourth. He is therefore liable for a quarter of the debt of his ancestor.

The judgment should be modified by increasing the liability of the defendant Frederick to one-quarter of any deficiency that may arise on the foreclosure sale, and in all other respects affirmed, with costs of appeal to the plaintiff as against the defendant Frederick B. Latimer, and with costs of appeal to the other defendants as against the plaintiff.

All concur.


author: PEB CUBIAM.

text:
    Ernst Neudoerffer v. Brooklyn Heights Railroad Co.
    (Supreme Court, Appellate Division, Second Department,
    October 6, 1896.)
    Accident at railroad crossings—Rule of “ stop, look, and listen.’*
    In New York it is not negligence per se for a person to attempt to cross a railroad without first stopping, looking, and listening. McQuade v. Railway Co. (Sup.) 89 N. Y. Supp. 385, criticised.
    Appeal from trial term, Kings county.
    Action by Ernst Neüdoerffer against the Brooklyn Heights Bailroad Company for personal injuries resulting from the collision between one of the defendant’s cars and plaintiff’s wagon, alleged to have been caused by the negligence of defendant. From a judgment entered on a verdict in favor of plaintiff for $3,000, together with $293.97 costs and from an order denying a motion for a new trial, defendant appeals.
    William W. Goodrich for appellant.
    Isaac M. Kapper and Thomas E. Pearsall, for respondent.
   PEB CUBIAM.

— The only points made upon this appeal are that the evidence failed to show any negligence on the part of the defendant, on the one hand, and demonstrated the contributory negligence of the plaintiff, on the other. After a careful reading of the record we are satisfied that there was enough to go the jury on both questions. There is no suggestion that there verdict was excessive. The case of McQuade v. Railway Co. (Sup.) 39 N. Y. Supp. 335, cited in behalf of the appellant, was so different from the present case in its facts that we do not see how it has any application to the circumstances of a collision between a street car and a wagon. There the plaintiff, who was crossing- the street on foot, with her head bundled up to protect her against the cold, unwittingly ran right into the side of the car. The case at bar presents no feature analogous to this. In the case cited the New York appellate term refers to Omslaer v. Traction Co., 168 Pa. St., at page 521, 32 Alt. 51, with evident approval and quotes therefrom as follows:

“The rule of ‘stop, look, and listen,’ before attempting to to cross the tracks of a steam railroad, is inflexible, and nonobservance is negligence per se. So much of this rule as requires a person about to cross the tracks of a steam railroad to look and listen to discover whether the train is approaching is applicable to the crossing of a street railway operated by cable or electricity.”

The learned counsel for the appellant copies this quotation in his brief, and the same passage has lately been brought to our attention by counsel in a number of other cases. It seems necessary, therefore, to point out that it is not a correct statement of the law in this state, so far as it declares it to be negligence per se on the part of a person who does not stop before attempting to cross the tracks of a steam railroad. The rule of “stop, look, and listen” prevails in Pennsylvania, but not in New York. Davis v. Railroad Co., 47 N. Y. 400. This hard and fast rule is justly criticised by Mr. C. Stuart Patterson, himself a Pennyslvanian, in his careful and useful treatise on Railway Accident Law (§ 170), where he says:

“The Pennyslvania rule also goes further than that in most jurisdictions, in that it requires the person injured not only to look and listen, but also to stop; yet in most cases one who approaches the crossing of the railway line can effectively care for his safety by looking and listening, without stopping.”

Judgment and order affirmed, with costs.


author: HATCH,, J.

text:
    Lorenzo G. Tomaselli v. John Griffiths Cycle Corps.
    (Supreme Court, Appellate Division, Second Department,
    October 6, 1896.)
    Master and servant—Unsafe appliance.
    A temporary apparatus for hoisting, while the-elevator was out of- order, devised by defendant’s shipping clerk, with the assistance of plaintitf and other subordinate employes, is an appliance by means of which the employes performed their labor; and defendant is liable for injuries to an employe caused by its insufficiency.
    Appeal from trial term, Kings county.
    Action by Lorenzo G. Tomaselli, Jr., against the John Griffiths Cycle Corporation, for personal injuries. The complaint was dismissed, and plaintiff appeals.
    Horatio C. King, for appellant.
    William A. Belcher, for respondent.
   HATCH,, J.

The question of law which must determine the disposition of tliis case is clear, and well settled by numerous authorities. It is the fitting of the facts that produces the confusion. It appeared that plaintiff had been in defendant’s employ but a day and a half when he received the injury of which he complains. At the time of the reception of the injury, he was called to assist about the raising of a box, containing material manufactured by defendant, from the basement or cellar of the building to the sidewalk above. The box weighed about 1,200 pounds. The elevator by which this material ivas usually hoisted ivas out of repair, and the shipping clerk having the matter in charge, directed and assisted about providing a temporary hoisting apparatus for raising the box in the elevator shaft. This, when complete, consisted, of a piece of iron laid across the space, and resting upon the combing of the elevator shaft on either side. Plaintiff’s evidence tended to show that the iron was cast iron, about five feet long, and half an inch thick. The tackle to hoist was a block pulley, which was attached to the iron, and a chain run through the pulley, which the men pulled upon in hoisting the box. Plaintiff had nothing to do with fixing this apparatus, although he saw the iron and knew generally what it was. When the tackle was attached to the box the shipping clerk directed plaintiff to get upon it, and pull upon the chain, and thus raise the box. Others assisted, some in pulling at the chain, and others in prying on the box with a lever. When the box was within about two feet of the surface of the walk, the iron broke, and plaintiff was precipitated into the cellar, receiving the injuries complained of.

It is quite evident from this testimony that the construction of the tackle by means of which the box was to be raised was not a detail of the work which plaintiff was required or expected to perform, but was an appliance, by-means of which he performed the labor required of him. The, obligation was therefore imposed upon the defendant to exercise reasonable care and - prudence in the selection of this appliance, and to see that it was reasonably suitable and safe for the purpose to which it was applied. This duty was primary, and could not be delegated to a servant, so as to shield the master from liability for damage occasioned through an omission of the servant to properly discharge it. Probst v. Delemater, 100 N. Y. 266, 3 N. E. 184; Ellis v. Railroad Co., 95 N. Y. 546. Whether the defendant discharged this duty in the present case, and whether the appliance furnished was sa safe and suitable for the purpose, became, upon the evidence, a question of fact for the jury to determine. They had before them the size and quality of this piece of iron, the weight to which it was subjected, and the manner in which the work was performed. It therefore rested with them to say whether or not this piece of iron could be regarded as a reasonably safe and suitable appliance, and whether, in the exercise of reasonable care and prudence, it ought to have been selected for that purpose. It did, in fact, lack sufficient strength to resist the strain brought upon it. Ought this not to have been foreseen by the servant when he selected it, and would it not have been had he exercised care and prudence in its selection? We think the court could not determine these questions as matter of law and that a case was made out requiring submission of it to the jury.

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

All concur.


author: HERRICK, J.

text:
    William L. Avery et al. v. John H. Sand.
    (Supreme Court, Appellate Division, Third Department,
    September 29, 1896.)
    Compulsory reference—When granted.
    Merely because a case is triable by the court without a jury does not authorize a compulsory reference under Code Civ. Proe. § 1018, which provides that “ the court may, of its own motion * * * direct a trial of the issues of fact, by a referee, where the trial will require the examination of a long account, on either side, and will not require the decisions of difficult questions of law. In an action, triable by the court, without a jury, a reference may be made, as prescribed in this section.
    Appeal from circuit court, Albany county.
    ' Action by William L. Avery and others against John H. Sand to set aside a deed and for other relief. A compulsory reference was granted, and plaintiffs appeal.

      Montignani, Mallory& Elmendorf (George H. Mallory, of counsel), for appellants.
    J. H. Clute, for respondent.
   HERRICK, J.

—This is an appeal from an order of refer” ence made at the circuit upon the motion of'the court, and against the objection of the plaintiff, referring all the issues in the action to a referee to hear and determine. The action is one in equity. Whatever opinion I might have if this was an original question arising"under section 1013 of the Code, I feel constrained by the decisions in the cases of Barnes v. West, 16 Hun, 68, and Thayer v. McNaughton, 117 N. Y. Ill, 26 S„ R. 843, to hold that the court had no right upon its motion to make the order appealed form.

The order of reference should therefore be reversed, with f 10 costs and disbursements of this appeal»

All concur.