text:
    Heman A. Newton v. Lydia A. Southworth et al., Impleaded, App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed February, 1887.)

    1. Marriage—What constitutes.
    A present agreement between parties competent to take each other for husband and wife, is enough in this state to constitute a valid contract of marriage.
    3. Same—When presumed.
    A man and woman lived and cohabited together and held themselves out to the community in which they lived, to be man and wife for thirty years and had five children born to them. They were generally reputed in said community to be husband and wife. Held, that there was enough on which to found a presumption of marriage if. there was nothing in the case to repel such presumption.
    3. Same—When not presumed.
    Within a year after they had ceased to live together the man was ceremonially married to another woman, and the following year the first-mentioned woman was ceremonially married to another man. Held, that a presumption of a contract of marriage cannot be raised when the direct consequence of so doing would involve both parties to it in the crime of bigamy. Following Foster v. Hawley, 8 Hun; 68.
    Appeal from an order of Erie special term confirming referee’s report distributing surplus money in a foreclosure suit.

      Plumley & Kingston, for claimants, Laura A. Harrison and others, resp’ts; ifoses Shire, for contestants, Lydia A. Southworth and others, app’lts; H. B. Van Beyma, guardian ad litem'for infant contestants, app’lt.
   Smith, P. J.

The action was brought to foreclose a mortgage executed by Dolphin Harrison and Lydia A. Harrison, stated therein to be his wife, dated March 11, 1861. The contest in respect to the surplus money depends upon the question whether the said Lydia was the lawful wife of Harrison. On the hearing before the referee it was conceded by the parties who disputed the existence of such relation, that from about the year 1833, to about November, 1863, the said Dolphin and Lydia lived and cohabited together, and held themselves out to the community in which they lived as man and wife continuously during that period; that they were generally reputed amongst the community in which they lived to be man and wife; that she bore the name of Lydia A. Harrison and that as a result of their cohabitation during such period, five children were born to them, whom said Harrison acknowledged as his children, and who bore his name, and who, or their lineal descendants claim to be heirs of the said Dolphin Harrison deceased. But in said concession it was expressly stated that it was not conceded that the intercourse of said Dolphin and Lydia was that of lawful husband and wife. Among the appellants herein are children and grandchildren of said Dolphin and Lydia.

The facts, thus admitted, were sufficient of themselves to raise the presumption of marriage, even although the fact appeared as it did by the testimony of Lydia, that there was no ceremonial marriage. A present agreement between parties competent to take each other for husband and wife, is enough in this state, to constitute a valid contract of marriage, and such an agreement may well be presumed from the facts above stated, if there is nothing in the case to repel such presumption-.

It has been said that the presumption of marriage from cohabitation, apparently matrimonial, is one of the strongest presumptions known to the law; especially in a case involving legitimacy; and the presumption can be repelled only by the most cogent and satisfactory evidence. Hynes v. McDermott (91 N. Y., 451), per Andrews J., 459, and cases there cited.

The countervailing evidence in this case, we think meets the requirements of that rule. In 1863, Harrison and Lydia voluntarily separated and ceased to live together. In July 1864, Harrison married the respondent, Laura A. Harrison, and in July, 1865, Harrison being then living, Lydia married John H. Southworth. Each of these marriages was ceremonial, and if Lydia was the lawful wife of Harrison, each of such marriages was bigamous. But the law presumes against the commission of crime, and that presumption stands opposed in this case to the presumption against illicit intercourse, and neutralizes it. As was said by Gilbert, J., in Foster v. Hawley (8 Hun, 68, 72), “ We can not raise a presumption of a contract of marriage when the direct consequence of so doing, would involve both parties to it in the crime of bigamy.” See also, Jackson v. Claw, 18 Johns., 346; Clayton v. Wardell, 4 N. Y., 230; Chamberlain v. Chamberlain, 71 id., 423.

One of the children bom to Harrison and Lydia during the period of their cohabitation was a son, named Elijah, who died unmarried, and in -February, 1878, Lydia applied to the surrogate for letters of administration on his estate, and presented a petition, duly verified by her, in which she alleged, that the said Elijah was one of her children by said Harrison, and was her illegitimate child. Harrison appeared before the surrogate, in person and by counsel, pending that application, but did not file any objections, and abandoned all opposition, and letters were granted to Lydia. This statement in her petition, made by her deliberately, under oath, in a legal proceeding in which her legal right depended on the fact of illegitimacy, repels the presumption of a marriage prior to the birth of such child, and there is no evidence or claim that the nature of the cohabitation was changed subsequently. The presumption against the commission of crime here arises again, for if the connection between Lydia and Harrison was matrimonial in its inception, she was guilty of perjury.

In October, 1863, soon after the parties separated, Harrison commenced an action against Lydia, and she employed counsel to defend it.. Counsel had conversation with both parties and was told that they had never been married. He advised that there was no ground for the action, and that each of them had the right to marry. Thereupon the suit was' discontinued on stipulation signed by the attorneys of both parties. The appellants contend that it appears from the testimony that the advice of the counsel was based upon the information communicated to him by the parties that there had been no marriage ceremony; and it is further contended that the parties relying on such advice acted in good faith in subsequently marrying, and their conduct does not tend to repel the presumption of marriage arising from their cohabitation and its attending circumstances. This contention is hardly warranted by the testimony of the counsel, who was the present Judge Hammond, the county judge of Erie county. Judge Hammond stated in the latter part of his testimony that the fact that there had been no marriage ceremony was “one of the facts” that led to the understanding or opinion that the parties “were not legally married.” He had previously testified that Harrison had told him “in substance that they were never married.” “My impression is,” said Judge Hammond, “he told me they went off: on a canal boat together, and went tó living together.” * * * “Know there was something about a canal boat and their living together, and that they were never married. ” He also testified that the statements of Harrison and his client on the subject were substantially in accord. These statements excluded the theory not only of a marriage ceremony, but also of an agreement of marriage. And those statements we are to assume the witness had in mind when he testified that the lack of a marriage ceremony was “one of the facts” upon which his opinion was formed, and when he advised his chent, as he testified, that “there was no legal marriage,” and that “an action for divorce could not be maintained, as no marriage could be proven.” The facts stated to him repelled the presumption of marriage, and in view of them, no marriage could be proven.

Judge Hammond was asked: “Was there any conflict in the statements made by Mr. Harrison in the course of your conversation with him, and the statements made by the defendant in that action about the same thing % It was objected “that answering the «question depended somewhat upon confidential communications between witness and his chent.” The witness answered that, according to his recollection, “there was no substantial difference.”

The appellant’s counsel contends that the exception points to error. It does not distinctly appear from the appeal book which party took the exception. From the fact that the next preceding witness was called by Mr. Plumley and that Mr. Plumley introduced an item of evidence immediately after Judge Hammond’s testimony was concluded, it may be inferred, perhaps, that Judge Hammond was called by Mr. Plumley, and the question which was objected to was put on his direct examination. Assuming that to be the case, we do not think the overruling of the objection was error. No answer of which the question was properly susceptible would disclose a confidential communication. The question did not call for any statement made by the client, and when the question was asked there was no proof of any statement made by Harrison. The proper time to interpose the objection, if it had any force, was when the statement of Harrison was called for, on the ground that taken in connection with the answer previously elicited, such statement would amount to a disclosure of communications made by the chent. But the question asking for that statement was not objected to.

We find no other exception in the case requiring comments.

The order should be affirmed, with ten dollars costs and disbursements.

Barker, Haight and Bradley, JJ., concur.

So ordered.


source: Caselaw Access Project

author: Haight, J.

license: Public Domain

text:
    William R. Hart, Resp’t, v. Henry Johnson, impl’d, etc., Appl’t.

      (Supreme Court, General Term, Fifth Department,

      Filed Fébrua/ry 11, 1887.)

    1. Contempt—Review of proceeding eor punishment for, governed by Code Civ. Pro., §§ 1356, 1357.
    A proceeding to punish a person for contempt is a special proceeding, and the mode of review is provided by Code Civil Procedure, sections 1356, 1357.
    3. Same—Order, need not be final that appeal mat be taken.
    It is not necessary that an order should be final that an appeal may be taken from it.
    3. Same—Waiver of objection by personal appearance.
    In a proceeding to punish a party for contempt for a failure to answer questions relating to property of a judgment debtor, as directed by an order made: Held, that the party having appeared and submitted to examination, pursuant to the order, and having admitted the service thereof, could not thereafter raise the objection that he had not been served with it.
    4. Same—Waiver of objection by appearance by attorney.
    A party cannot object that an order to show cause was not served upon him personally, where it was served upon his attorney, and the attorney appeared for him upon the return day and procured an adjournment of the proceedings.
    5. Same—Refusal to answer—Prejudicial to judgment creditor.
    It appearing that one was a judgment debtor of this plaintiff, that an execution had been issued and returned unsatisfied, and that an order had been procured to examine a person on the ground that he had property of the judgment debtor: Held, that his refusal to answer pertinent questions as to whether he had such property did of necessity tend to defeat, impair, impede and prejudice the rights of the judgment creditor.
    6. Supplementary proceedings—Examination of third party—Scope of.

      Held, that any question tending to show that he had such property was pertinent and proper.
    Appeal from an order of the Wayne special term adjudging Henry Johnson guilty of a contempt, and ordering a reference to ascertain and determine the loss or injury occasioned by his contempt.

      S. B. McIntyre, for resp’t; John H. Camp, for app’lt.
   Haight, J.

The plaintiff as a judgment creditor of George H. Bowman and others upon an affidavit showing that the appellant has property of the judgment debtors and is indebted to them in an amount exceeding ten dollars, procured an order requiring him to appear and be examined and to answer concerning the same. Upon such examination numerous questions were asked which he declined to answer, and thereupon upon application to the special term the order appealed from was made.

It is contended in the first place that the order is not appealable for the reason that it is not a final order. Proceedings to punish a person for contempt is a special proceeding, and the mode of review is provided by sections 1356 and 1357 of the Code. The appeal in this case was taken under the former section, which provides that “an appeal may be taken to the general, term of the supreme court, or of the superior city court, from an order affecting a substantial right made in a special proceeding at a special term, or a trial term of the same court, or in the supreme. court at a term of a circuit court, or made by a judge of the same court in a special proceeding instituted before him pursuant to a special statutory provision or instituted before another judge and transferred to or continued before him.”

It will be observed that this section provides that an appeal may be taken from “an order affecting a substantial right.” As this section was originally adopted in 1876 it provided that an appeal could be taken from a final order affecting a substantial right, and to the same effect were the provisions of section 1357 as adopted in 1876, but by the amendment of these sections in 1877, the word “final ” preceding the word “ order” was stricken out. We must assume that the legislature intended by this amendment to effect a change in these sections, for unquestionably before this amendment a final order in a special proceeding only would be appealed from.

The fact that the amendment strikes out the word “final,” necessarily leads to the conclusion that it was intended to enlarge the scope of the sections so as to permit an appeal from any order that affects a substantial right. • The reviser, in his note to these sections, expressly states that tins was the object of the amendment. It is true that the word “final” is retained in sections 1358 and 1359, and in the absence of the amendment striking out the words “final” in the two preceding sections, it might be considered as explaining what order was meant by those sections, but the reviser, in his note, also informs us that the word “final,” in the last two sections, was left in by an error. We consequently are of the opinion that the right to appeal is not limited to final orders in special proceedings.

It is first contended, on the part of the appellant, that the original order for the examination of Johnson was never served upon him. The affidavits read fail to show a •service. The most that they show is that the papers were sent to one Mason and that he procured another person to serve the papers, and that that person had reported to him that they were served; but Johnson and his attorney appeared, and Johnson was sworn and submitted to an examination without raising any question in reference to the service of the order upon him, and upon the examination, when asked the question, “When was the order in these proceedings served upon you?” he answered, “I can’t give you the date; it was last month or this month; that’s as near as I can state it.” This we regard as a sufficient admission of service to give the court jurisdiction.

Again, it is claimed that the court acquired no jurisdiction of the proceedings to punish for contempt, for the reason that the order to show cause was not served upon Hr. Johnson. The order was in fact served upon the. attorney who appeared for him in the supplementary proceedings. The attorney appeared for him upon the return day of the order to show cause and two adjournments were procured. On the third day to which the proceedings had. been adjourned Johnson for the first time objected to the jurisdiction of the court, upon the ground that the order to show cause was not served upon him personally. We are of the opinion that he was too late and that his objection was not well taken. The supplementary proceeding was the proceeding upon which the proceeding to punish for contempt was based. An attorney appeared for him in those proceedings, and the attorney who subsequently raised the objection that the order was not personally served appeared for him on the return day of the order to show cause and procured an adjournment. Watrous v. Kearney, 11 Hun, 584; S. C., affirmed, 79 N. Y., 496; Pitt v. Davison, 37 id., 235.

Again, it is contended that the court erred in adjudging that the misconduct of the defendant did actually defeat, impair, impede and prejudice the rights and remedies of the judgment creditor. Undoubtedly there must be evidence before the court that sustains this adjudication. Whether or not the misconduct alleged did in fact defeat, impair, impede and prejudice the judgment creditor is to be determined from the facts and circumstances in the case. Fisher v. Raab, 81 N. Y., 235.

The fact appeared that Hart was a judgment creditor; that an execution had been returned unsatisfied; that an order had been procured to examine Johnson upon the ground that he had property of the judgment debtors. His refusal to answer pertinent questions as to whether he had such property of necessity did tend to defeat, impair, impede and prejudice, etc., the rights of the plaintiff.

It is also contended that many of the questions were remote and did not bear upon the subject upon which the order for examination had been made. Johnson was ordered to appear and answer in reference to his having property of the judgment debtors. Any question tending to show that he had such property, is pertinent and proper. The questions which he refused to answer bear upon the question as to whether or not himself and the other judgment creditors had purchased the patent right which was subsequently conveyed to their wives in view of their insolvency, for the purpose of hindering, delaying and defrauding creditors, and as to whether he, claiming to act as the agent of his wife, had the proceeds of any such property in his possession. If the judgment debtors had transferred property to their wives in fraud of the right of creditors, and such property or the proceeds thereof was in Johnson’s hands, the judgment creditor had the right to a discovery of this property in these proceedings, and the questions calling for the facts in reference thereto were proper and pertinent.

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

Smith, P. J., Barker and Bradley, JJ., concur.


author: Barker, J.

text:
    John McDonough et al., Resp’ts, v. Myron J. Dillingham, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed February 11, 1887.)

    1. Practice—Pleading—Cause of action—Character of how determined.
    The character of a cause of action must in all cases be determined by an analysis of the averments in the complaint, together with the nature of the relief demanded.
    3. Same—When doubtful, will be construed as ex contractu.
    If a cause of action, as set forth, is doubtful or ambiguous, every intendment is in favor of construing it in the nature of an action ex contractu.

    3. Same—Where fraud is alleged in entering into a contract, but DAMAGES FOR THE FRAUD ARE NOT DEMANDED, THIS WILL BE CONSIDERED AS AN EVIDENCE THAT THE ACTION IS EX CONTRACTU.
    Where a pleader avers the sale and delivery of property to a defendant at a fixed and agreed price, which remains unpaid, and also alleges that he perpetrated a fraud in making the purchase by means of false representations as to his solvency, and a question of doubt is presented as to whether it was the intention of the pleader to set forth a cause of actions® contractu or ex delicto, the omission to allege that damages have accrued to the plaintiff by reason of the fraud is accepted by the court as an indication of his purpose to rely upon the contract as constituting his cause of action.
    4. Same—What constitutes a cause of action within Code Crv. Pro. § 549, subd. 4.
    Where the complaint alleged a contract made between the parties, and that the plaintiffs were induced to enter into it by the fraudulent represen' tations of the defendant: Held, that the allegation of fraud brought the case within Code Civil Procedure, § 549, subd. 4, which would entitle the plaintiff to a body execution on the judgment in case the charge of fraud was sustained by proofs presented on the trial.
    5. Same—What will not amount to a release of a cause of action FOR FRAUD.

      Held,, that an agreement on the part of the plaintiffs to accept a less amount than that due them upon the original indebtedness was executory, and was not an accord and satisfaction of the defendant’s obligation; that money paid by the defendant was but a part performance of the original undertaking and did not alter the nature of the original transaction.
    6. Same—Fraud—Code Crv. Pro., § 549, subd. 4.

      Held, that the cause of action having been admitted, and the jury charged that they could not find a verdict for the plaintiff unless the charge of fraud was established to their satisfaction, and the jury having found that a fraud was perpetrated by the defendant in entering into the contract, the plaintiff made a case entitling him to judgment under Code Civil Procedure, § 549, subd. 4.

      Ak appeal from a judgment entered upon a verdict rendered at the Erie county circuit, and from an order denying the defendant’s motion for a new trial founded upon the judge’s minutes.
    The plaintiffs, in July, 1883, sold and delivered to the defendant two car-loads of cattle at the fixed and agreed price of $3,307.60, who thereupon made and delivered his negotiable promissory note for that sum, payable twenty . days after date, with use. On the 17th day of July, 1883, the defendant purchased of Ullman & Block one car-load of cattle at the agreed price of $1,295.27, and thereupon the defendant delivered to them his check for that sum, payable on the 29th of July. Before the commencement of this action Ullman & Block sold and transferred all their right of action growing out of the transaction to the plaintiffs herein.
    On the trial the question was presented whether the cause of action set out in the complaint was upon these contracts, or was for a tort for an alleged fraud in making the purchase. The cause of action arising out of the sale by the plaintiffs to the defendant is first set out in the complaint. The first allegation is in a paragraph marked number two, and is as follows: “The plaintiffs further allege that on or about the 2d day of July, 1883, the' plaintiffs sold and delivered to defendant two car-loads of cattle, at said city of Buffalo, for the agreed price of $3,207.60, which sum was the value of the said two car-loads of cattle. That such sale was made to the defendant upon credit, and was evidenced by a promissory note of which the following is a copy,” which is then set out in full. In succeeding paragraphs, numbered 3, 4, 5 and 6, it is alleged in substance, that, to induce the plaintiffs to give such credit and take such promissory note, the defendant stated and repre- • sented to the plaintiffs, that he was perfectly good and responsible; that he was worth, in his own right, twenty such car-loads of cattle, and that he did not intend to sell the cattle immediately, but intended to keep them in pasture on his own farm and await a better, market, and that he had other cattle on his farm; and for those reasons he wanted credit, and that he was perfectly good and responsible. Then follow the other allegations stating that the plaintiffs relied upon such representations and believed them to be true, and was induced thereby to give credit to the defendant. And further, that the defendant was insolvent; and that such allegations were false and untrue, and were made with the intent and purpose of cheating and defrauding the plaintiffs; that the note remained unpaid, excepting a small sum, which was stated, and that the plaintiffs had sustained great damages by reasons of the premises.

      The cause of action arising out of the sale of the other ■car load is charged in the second count as follows: “ The plaintiff further alleges, that on the 17th day of July, 1883, Ullman & Block sold to the defendant one car load of cattle for the agreed price of-dollars, and that the said firm of Ullman & Block accepted from the defendant a check, of which the following is a copy, on account of the purchase price of said cattle, to wit.: ” Here follows a copy of the check. The allegations as to fraud are substantially the same as those contained in the first count.
    The prayer for judgment is as follows: “Wherefore the plaintiff demand judgment against the defendant for the sum of $3,207.60, with interest thereon from the 2d of July, 1883, and the further sum of $1,295.27, with interest thereon from the 17th day of July, 1883, less the sum of $500, paid on or about the 15th day of October, together with the costs of this action.”
    The defendant, in his answer, admitted the making of the purchase of the cattle and the giving of his notes and checks as alleged in the complaint, and admits that neither of them had been paid. He also denies the allegations of fraud, and claims that if any fraud had been practiced as alleged the same had been condoned and waived.
    The verdict was for the sum demanded in the complaint.

      John Gillette, for app’lt; Charles A. Forsyth, for resp’t.
   Barker, J.

The defendant insisted upon the trial that the cause of action averred in the complaint was founded upon contract. We concur in this construction of the complaint. The further averments therein, that the defendant, for the purpose of inducing the plaintiffs to give credit on sale of the cattle, made false and fraudulent representations as to his financial condition and solvency, which induced the plaintiffs to deliver the cattle without payment, do not make the action one ex delicto. The rule of pleading established by the Code requires the complaint to complain a plain and concise statement of the facts constituting the plaintiff’s cause of action and a demand for such judgment as the plaintiff supposes himself entitled to on the facts set forth therein. Nothing more is necessary in any case. The pleader is not required to state, either in the summons or the complaint, the class of action to which he conceives his cause of action - belongs, as the same are denominated in judicial procedure. If the complaint states facts entitling the plaintiff to any relief whatever, then it is for the court to determine, when the question is properly presented, whether the cause of action averred is founded in contract or tort. The character of the cause of action must, in all cases, be determined by an analysis of the averments in the complaint, together with the nature of the relief demanded. Conaughty v. Nichols, 42 N. Y., 83; Ledwich v. McKim, 53 N. Y., 307, 315; Neftel v. Lightstone, 77 N. Y., 96; Elwood v. Gardner, 45 N. Y., 349.

If the cause of action as set forth is doubtful or ambiguous, every intendment is in favor of construing it the nature of an action ex-contractu. Goodwin v. Griffis, 88 N. Y., 629.

If all the allegations relative to the defendant’s misrepresentations as to his pecuniary condition, and his fraudulent intent in making them, were struck out of the complaint, a cause of action founded on the defendant’s promises as set forth therein would remain, concisely and clearly stated, showing a cause of action founded on contract.

The averments set forth in the second count clearly constitute a cause of action on contract within the rule of construction adopted by the courts for the purpose of ascertaining whether the same is one in contract or tort. It will be observed there is no averment that Ullman & Block suffered any damages in consequence of the fraud alleged to have been perpetrated on them by the defendant. In all cases where the pleader avers the sale and delivery of property to the defendant at a fixed and agreed price, which remains unpaid, and also alleges he perpetrated a fraud in making the purchase, by means of false representations as to his solvency, and a question of doubt is presented as to whether it was the intention of the pleader to set forth a cause of action ex contractu or ex delicto, the omission to allege that damages have accrued to the plaintiff by reason ' of the fraud is accepted by the court as a circumstance indicating the purpose of the pleader to rely upon the contract, as constituting the cause of action. Since the amendment of section 549 of the Gode, made in the year 1879, averments of fraud on the part of the defendant in making the contract declared upon are pertinent and material, and cannot be treated as mere surplusage. If the fraud is admitted by the defendant, or is sustained by proof, when denied, the plaintiff is entitled to a body execution against the defendant on the judgment. The question of fraud, when the cause of action is on contract, is collateral thereto and presents a separate and distinct issue, which must be tried and determined with the issues presented on the question of the defendant’s liability on the contract.

Section 549 now provides, that the defendant may be arrested “in an action upon contract, express or implied, other than a promise to marry, where it is alléged in the complaint that the defendant was guilty of a fraud in contracting or incurring the liability. Where such an election is made, the .plaintiff cannot recover unless he proves the fraud; and a judgment for the defendant is not a bar to a new action to recover upon the contract only. ” Section 550 enumerates the cases in which the right to arrest depends upon matters extrinsic of the cause of action, and in which no execution against the person can issue, unless an order of arrest has been granted and executed before judgment. These extrinsic matters need not be alleged in the complaint, and if alleged, are immaterial to the right of action and need not be proved upon the trial. Segelken v. Meyer, 94 N. Y., 485; section 1487 of the Code of Civ. Pro.; Smith v. Duffy, 37 Hun, 506; Hall v. Conger, 1 How. Pr. R. (N. S.), 88.

The allegation of fraud brought the case within the class of cases mentioned in subdivision 4, of section 549, which would entitle the plaintiff to a body execution on the judgment in case the charge of fraud was sustained by the Eroofs presented on the trial. The defendant admitted his ability on the contracts, and as the judgment is not in excess of his indebtedness thereon, the judgment should be sustained, unless some error occurred on the trial, relative to the issue of fraud.

The defendants evidence tended to prove, that after the maturity of the note and check, he, and one of the plaintiffs had some negotiations relative to the matter of his indebtedness, in which the plaintiffs accused him of perpetrating a fraud, in making the purchase, by fraudulently representing his pecuniary condition. This accusation the defendant denied, but at the same time sought to compromise the debt on account of his insolvency. Several propositions were made by the defendant as to the basis of the compromise, but none of them were satisfactory to the plaintiffs, and were rejected. The plaintiffs then made the defendant a verbal ' proposition, that in substance, viz.: he would pay them $1,500, $500 in cash and $1,000 as soon as he could earn the same, or secure that amount to their satisfaction, if they would accept it in payment of the debts. This proposition the defendant assented to and paid the $500, which the plaintiffs indorsed upon the notes and checks in pro rata proportions. No other negotiations were had between the parties, and at the time of the commencement of this suit the $1,000 had not been paid or secured to be paid. Neither the note nor the check was given up, nor was a release in any form executed by the plaintiffs of their cause of action, at the time of the conversation relative to the proposed compromise the plaintiffs were informed as to the financial ability of the defendant at the time he purchased the cattle. This was the only evidence presented by the defendant in ■support of the defense, that the plaintiffs had condoned the fraud.

Upon this question the court was asked to charge the jury that, if they believed that there was an agreement made between the plaintiffs and defendant, by which the plaintiffs agreed, after they knew all the facts (assuming fraud to have been committed by the defendant on the purchase), to compromise or settle the transaction and such an agreement was partly carried out, then, thereby the plaintiff waived any fraud so committed and the plaintiffs cannot recover. This was refused and the defendant excepted.

We are of the opinion that there was no error in rejecting the proposition. The general rule on that subject undoubtedly is, that where a defrauded party, with full knowledge of the fraud, settles the matter in relation to which such fraud has been committed and releases the person who defrauded him, he thereafter has no claim for relief, either at law or in equity, on account of such fraud. Or if the defrauded party, after such knowledge, subsequently confirms the original contract by making new agreements respecting it, he thereby condones the fraud and cannot pursue, the wrongdoer. But we think that the facts which the defendant’s evidence tended to prove were insufficient to make a case which falls within either of the rules stated. The plaintiffs promise to accept a lesser amount than was due them upon the original indebtedness was wholly executory and was not an accord and satisfaction of the defendant’s obligation. There was no new agreement made which superseded, changed or altered the terms of the original contract. • The payment which the defendant made had the effect to reduce the damages which the plaintiffs sustained by reason of the defendant’s fraud; but there was no new agreement made which would merge the fraud in a new obligation on the defendant’s part. The money which he paid was but a part performance of the original undertaking and it did not increase, alter or change the nature of the original transaction.

We have examined the many cases cited by the learned counsel for the defendant in support of his argument and fail to discover that they support his contention, that the terms of the compromise relieved the defendant from liability to arrest on a body' execution issued upon the judgment.

In Baker v. Spencer (47 N. Y., 562,) the plaintiff had given the defendant a $500 note and subsequently he suspected that he had been defrauded by the defendant, and refused to pay the same. Suit was brought thereon against the defendant, and a judgment recovered, which was compromised by his giving a new note for $300, which he paid. The defendant afterwards ascertained that he had been defrauded in the original transaction and brought an action to recover the moneys paid upon the last named note and had judgment for the sum paid thereon. The court held, that if the plaintiff had knowledge of the facts constituting the fraud when he compromised the judgment rendered against himself it would have been a condonation of the alleged fraud as it would have been merged in the new note. That case cannot, therefore, be brought within the principle of the rule upon which the defense of condonation is based, for the reason that the new note was then received as an accord and satisfaction of the prior liability existing against the defrauded party.

In Obregon v. DeMier (54 How., 390), the defendant had American gold in his hands belonging to the plaintiff for the purpose of making a purchase of silver coin. Subsequently, and before any purchase was made, the plaintiff countermanded the order and drew a draft upon the defendant at sixty days, which was accepted, and it was held that by drawing the draft the plaintiff had elected to treat the defendant as an ordinary debtor and the fiduciary relation was ended. There are many other cases of the same import.

In Nelson v. Blanchfield (54 Barb., 630), the plaintiff, after the perpetration of the alleged fraud and with knowledge thereof, settled with the defendant and compromised the transaction by accepting the defendant’s note for a portion of the damages and a due bill for 200 shares of the capital stock in a corporation, and the absolute transfer of other shares in the same company, and it was held that it was a condonation of the tort and a waiver of the plaintiff’s right to arrest.

In Adams v. Sage (28 N. Y., 103), the parties were in controversy as to their rights growing out of a transaction ■ between themselves, and suits were pending in which the same matter was involved. Before trial they compromised their differences and executed releases to each other. In a subsequent action by one of the parties to set aside the release, it was held as the complaining party had compromised and settled the original matter in dispute with a full knowledge of the facts upon which the charge of fraud was based, he was not entitled to relief on the ground of the alleged fraud.

In these and the other cases cited by the learned counsel for the defendant, it will be found on their examination that the settlement and compromise'entered into in each of the cases was based upon an agreement in the nature of an accord and satisfaction of an existing obligation and the substitution of new one in lieu of the former one, or that there was a formal release by the defrauded party of a previous legal obligation with knowledge of the fraud charged. Parsons v. Hughes, 9 Paige, 594; Alliance Ins. Co. v. Cleveland, 14 How. Pr. Rep., 408.

The evidence produced by the plaintiffs in support of the allegations of fraud were of such a character as to make a case for the consideration of the jury, and they were specifically instructed by the court that they could not find a verdict for the plaintiff unless the charge of fraud was established to their satisfaction. As the cause of action was admitted, and the jury found that a fraud was perpetrated by the defendant in the purchase of the cattle, the plaintiffs made a case within the rule laid down in the fourth subdivision of section 549, and the judgment should be affirmed.

Judgment and order both affirmed.

All concur.


text:
    Adelle E. Tracy v. William S. Seamans.

      (Supreme Court, General Term, Fifth Department,

      Filed February 11, 1887.

    1. Justice op peace—Acts in excess op jurisdiction are void—Those WITHIN JURISDICTION, BUT COMMITTED IN A MISTAKEN EXERCISE OP POWER, ARE VOIDABLE.
    Where a justice of the peace has no jurisdiction whatever and undertakes to act, in's acts are coram nonjudice and void, but if he has jurisdiction and errs in the exercise of it, his acts are voidable only.
    3. Same—Code Crim. Pro., §§ 148, 149, 150—Penal Code, § 539—Order OP ARREST ISSUED WITHOUT JURISDICTION.
    By Code Criminal Procedure, section 148, it is provided that when information is brought before a magistrate of the commission of a crime, he must examine upon oath the informant, prosecutor and witnesses, and take their deposition in writing, and cause them to be subscribed by the parties making them;by section 149, that the depositions must set forth the facts stated by the prosecutor and witnesses tending to establish the commission of a crime and the guilt of the defendant, and by section 150, that if the magistrate is satisfied therefrom that the crime complained of has been committed, and that there is reasonable ground to believe that the defendant has committed it, he must issue warrant of arrest. By Penal Code, section 539, it is provided that a person finding 1 st property under circumstance which gives him knowledge or means of inquiry as to the true owner, and who appropriates such property to his own use, or the use of another person who is not entitled thereto, without having first made eveiy reasonable effort to find the owner and restore the property to him, is guilty of larceny. Held, that the issuance of an order of arrest upon complaint and depositions made, which charged the accused with holding possession of the property of the complainant, but not under such circumstances as to constitute the crime of larceny, was unauthorized and without jurisdiction.
    3. Arrest—What constitutes a constructive arrest.
    The defendant in this action issued a warrant and handed it to a police officer, directing him to arrest the plaintiff. The officer told the plaintiff that he had a warrant for her arrest, showed it to her, and asked her to walk over to the justice’s office; he then returned to the justice’s office, and subsequently the plaintiff came there with her husband. Held, that this amounted to a constructive arrest.

      Motion for a new trial on exceptions taken at the Tates circuit and ordered to be heard in the first instance at the general term.

      Calvin J. Huson, for pl’ff; Hanford Struble, for deft.
   Haight, J.

This action was brought to recover damages for the alleged false imprisonment of the plaintiff. The defendant was a justice of the peace of the town of Milo in the county of Tates, and as such justice issued a warrant upon the complaint of Mrs. Myron Baker for the arrest of the plaintiff and delivered the same to a police officer who caused her to be arrested and brought before the defendant as such justice. The hearing was adjourned from day to day and finally the complaint was dismissed. The Code of Criminal Procedure provides that, “When information is brought before a magistrate of the commission of a crime he must examine on oath the informant and prosecutor and any witnesses he may produce and take their depositions in writing and cause them to be subscribed by the parties making them.” Section 148. “The depositions must set forth the facts stated by the prosecutor and his witnesses tending to establish the commission of the crime and the guilt of the defendant.” Section 149. “If the magistrate be satisfied therefrom that the crime complained of has been committed and that there is reasonable ground to believe that the defendant has committed it, he must issue a warrant of arrest.” Section 150. The depositions upon which the warrant was issued are as follows:

State of New York, County of Yates, Town of Milo, ss.:

Be it remembered that I, Mrs. Myron Baker, residing in the town of Torrey, county of Tates, 1ST. W, now come before William S. Seamans, Esq., a justice of the town of Milo, in the county of Tates, and give information under oath as follows: That one, Mrs. William Tracy, has got, as she has seen October 21, 1885, one pin that belongs to said complainant, Mrs. Myron Baker, and the said Mrs. Myron Baker has missed the pin called rustic gold and she has good reason to believe that the said Mrs. William Tracy has the same for this complainant this day saw this pin in possession of Mrs. William Tracy’s hand and would not give it up, and the pin that Mrs. William Tracy had in her possession was mine, for I know the pin to be mine. Wherefore your informant prays that the. depositions of this informant and witness may be reduce to writing and duly subscribed, and that a warrant issue for the arrest of said accused and that she be dealt with pursuant to the provisions of the Code of Criminal Procedure. Mrs. Myron Baker, complaint.

Sworn to before me this 21st day of October, 1885.

WILLIAM S. SEAMANS,

Justice of the Peace ”

The deposition of Mrs. Alice Legg was also taken, which is to the effect that on the 21st day of October, 1885, at the village of Penn Yan, in the town of Milo, county of Yates, state of New York, she saw Mrs. William Tracy have a pin that matches Mrs. Myron Baker’s, and that she believed that it belonged to Mrs. Myron Baker.

The rule is that where a justice of the peace has no jurisdiction whatever and undertakes to act, his acts arecoram non judice and void; but if he has jurisdiction and errs in the exercise of it, his acts are voidable only. Butler v. Potter, 17 Johns., 144; Horton v. Auchmoody, 7 Wend., 200.

The information laid before the justice was doubtless intended to charge the crime of larceny under section 539 of the Penal Code. That section provides that “A person who finds lost property under circumstances which give him knowledge or means of inquiry as to the true Owner, and who appropriates such property to his own use or to-the use of another person who is not entitled thereto, without having first made every reasonable effort to find the owner and restore the property to him, is guilty of larceny.” The justice, as we have seen, acquires jurisdiction to issue the warrant for the arrest of the accused from the information laid before him; and the question is thus presented as to whether or not the information embraced in the depositions to which we have referred, states any crime which would authorize the issuing of a warrant. By referring to the depositions, it will be observed that there is no accurate description of the property claimed to have been stolen; there is no statement that the pin was ever in fact lost; the only statement bearing upon the loss are the words, “and has missed the pin;” there is no evidence showing that the property was found by the accused under such circumstances which would give her knowledge or means of inquiry as to the true owner; or any evidence tending to show that the accused, if she had found the pin, had not made reasonable effort to find the owner. It consequently follows that the depositions failed to show that the pin had been stolen by the accused, and consequently the magistrate had no jurisdiction to issue the warrant for her arrest. Blodgett v. Race, 18 Hun, 132; Warner v. Perry, 14 Hun, 337; Comfort v. Fulton, 13 Abbott, 276.

Again it is contended that the plaintiff was never arrested. It appears from the evidence that the defendant issued a warrant and handed it to a police officer, and directed him to arrest the plaintiff; that the police officer found the plaintiff, told her that he had a warrant for her arrest, and showed it to her and asked her to walk over to the justice’s office; he then returned to the justices’s office, and subsequently the plaintiff came there with her husband. This doubtless amounted to an arrest, at least a constructive arrest. Searls v. Viets, 2 Thompson & Cook, 224.

It follows that the motion for a new trial should be denied, and that judgment be ordered for the plaintiff upon the verdict.

Smith, P. J., Barker and Bradley, JJ., concur.


text:
    Bridget Quinlan, as Administratrix, etc., of Thomas Quinlan, Deceased, v. Martin H. Birge, George K. Birge and Henry M. Birge, App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed February, 1887

    1. Attorney’s lien—Code Crv. Pro., § 66.
    Section 66, Code Civil Procedure, as amended in 1879, gives an attorney for the plaintiff a lien on- the cause of action from the time of the commencement thereof, which cannot be displaced by its settlement and discontinuance without the attorney’s consent, unless his costs are adjusted and paid.
    3. Same—Notice need not be given to make lien effective.
    It is not necessary for the attorney to give notice to the defendant that he has a lien on the cause of action by virtue of the said section to make the same effective as against the action of the parties in settlement of the action, etc.
    3. Same—Cannot proceed with action without leave of the court.
    The attorney cannot proceed in the action after settlement for the purpose of enforcing his lien without leave of the court, which, in a proper case, is granted on notice to all interested parties.
    4. Same—How enforced.
    Where the defendants acted in entire good faith in making the settlement, and without any intention on their part of cheating or defrauding plaintiff’s attorney out of his legitimate costs, the attorney will be made in the first instance to seek payment of his costs from his client.
    • An appeal by the defendants from an order * of the Erie county special term permitting the plaintiff’s attorney to prosecute the action for the purpose of recovering his costs after settlement and discontinuance of the action without his consent.
    The deceased lost his life by the burning of the defendants’ factory, in which he was at that time engaged as their servant. It was claimed by the plaintiff that the accident occurred by reason of the defendants’ negligence, and this action was to recover damages suffered by the next of kin of the deceased. After the issues were joined and before trial the parties settled the controversy, the defendants paying the, plaintiff, as administratrix, $600, and she executed and delivered a full release and stipulated to discontinue the action, but no order was entered thereon. No notice of motion was served on the plaintiff, and she did not appear on the hearing. From the order the defendants appeal.

      James M. Humphrey, for app’lts; Adelbert Moot, for George Lewis, the pl’ff’s att’y.
   Barker, J.

We do nor need, in disposing of this appeal, to discuss many of the legal propositions argued by the learned counsel for the respective parties, for in our previous decisions, in similar cases, we have considered and passed upon the controverted questions now presented.

This court held in Dimick v. Cooley (3 C. Pro., Rep. 141), that the provisions of section 66 of the Code as amended in 1819, had the effect to change the rule of the common law and by its terms gives an attorney for the plaintiff, a lien on the cause of action from the time of the commencement thereof, which cannot be displaced by its settlement and discontinuance without the attorney’s consent unless his costs are adjusted and paid.

In subsequent cases decided by this and other courts, it has been held that it is not necessary for the attorney to give notice to the defendant that he has a lien on the cause of action, by virtue of the said section, for the purpose Of making the same effective as against the action of the parties in settlement of the cause of action and stipulating for a discontinuance of the suit without his consent. Albert Palmer Co. v. Van Orden, 64 How. Pr. Rep. 79 (Sup. Ct., N. Y.); Tullis v. Bushnell, 65 How. Pr. Rep.. 465 (N. Y. Com. Pleas); Jenkins v. Adams, 22 Hun, 600 (First Dep.); Whittaker v. The N. Y. and H. R. R. Co., 311 (Civ. Code, vol. 189).

. As there had been no verdict, report, decision, nor judgment, in favor of the plaintiff, at the time of the settlement the attorney’s lien is preserved on the original cause of action which was placed in his hands for collection. The court possesses ample power to protect the hen which the law gives the attorney as security for his costs, but he cannot proceed in the action after settlement for the purpose of enforcing his hen without leave of the court, which, in a proper case, it is the practice of the court to grant on notice to ah interested parties. Martin v. Hawks, 15 John., 405; Coughlin v. N. Y. C. and H. R. R. Co., 18 N. Y., 443; Pulver v. Harris, 52 N. Y., 73; Dimick v. Cooley, supra.

When a case is made permitting the attorney to proceed in the action, notwithstanding the settlement between the parties and their stipulation to discontinue, it is the duty of the court to direct as to the time and manner of the further prosecution of the action, and to watch the proceedings and doings of the attorney so as to fully protect the rights of both parties and not unnecessarily annoy or embarrass the defendant when he has acted in good faith. In view of the facts disclosed in this case, we incline to the opinion that the plaintiff’s attorney should not be permitted to proceed with the action, for the purpose of collecting his costs until it is made to appear to the satisfaction of the court that he is unable to collect the same from his client or out of the money which the defendant paid to the plaintiff on the settlement which the latter now holds as trustee undischarged of the lien in favor of her attorney for all his costs.

It was conceded on the argument by the attorney that the defendants acted in entire good faith in making the settlement, and without any intention on their part of cheating or defrauding him out of his legitimate costs. The contrary of this concession cannot bé fairly established from the history of the case as set forth in the affidavits, and such was the opinion of the learned judge who granted the order under review, for he states in his opinion, which is printed in the case, that the settlement was free from any actual or imputed fraud upon the rights of the plaintiff’s attorney on the part of the defendants or their attorney.

The plaintiff, in her representative capacity, up to this time has in her hands the money paid to her on the settlement—■ at least nothing appears to the contrary—for the benefit of the next of kin of the deceased, to be distributed by the surrogate after deducting “ therefrom the expenses of the action,” on notice “to such persons as the surrogate deems proper.” Code, § 903. bio satisfactory reason has been suggested by the attorney why he should not in the first instance seek payment of his costs from his client, and not pursue the defendant who had the undoubted right to adjust the plaintiff’s claim for damages if she had a good cause of action, or to buy his peace if he conceived her claim to be without merit. Of course, as has been already stated, if there was a good cause of action, a settlement without the attorney’s consent would not destroy his lien. In our opinion it would be manifestly unjust and inequitable to compel the defendants to pay the costs of the plaintiff’s attornéy until the latter has made every reasonable effort and failed therein to secure their payment from the plaintiff or out of the fund on which he has a lien and which is also in equity primarily hable therefor as between the parties to the action. As the fund is ample, he should be required to pursue it with due diligence and promptness, and fail in a reasonable effort to reach the same before the court should allow him to prosecute the action and compel the defendants to pay his costs.

The order should be reversed, without costs of this appeal, with leave to the attorney to renew the motion if he fails to obtain his costs from the plaintiff or out of the fund paid by the defendants to the plaintiff on the settlement.

Smith, P. J., Haight and Bradley, JJ., concur.


author: Bradley, J.

text:
    Eliza M. Orr, Resp’t, v. Margaret McGregor, Adm’rx, etc., impl’d, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed February 11, 1887.)

    1. Banks and banking—Deposit—By one in name of another—Bank IS PRIMA FACIE A CREDITOR OF THE PARTY IN WHOSE NAME THE DEPOSIT IS MADE.
    Where a deposit was made in a bank by a person in the name of another: Held, that as between the person in whose name the deposit was made and the bank, he was prima facie the creditor of the bank, and entitled to draw upon it for the amount of the fund.
    2. Same—Pass book—Imports the liability of the bank arising out OF THE DEPOSITS.
    The by-laws of the bank required the presentation of the pass book of the depositors at the time of drawing money, and such requirement appeared in the depositor’s pass book. Held, that the book imported the liability of the bank arising out of the transactions of the deposits made.
    3. Same—Circumstances accompanying the deposit are competent EVIDENCE OF THE INTENT OF THE PARTY.

      Held, that the circumstances accompanying the deposit were competent evidence upon the question as to whether or not the depositor intended to make a gift of the money to the party in whose name it was deposited.
    4. Same—Evidence that party did not intend to make a gift.
    While the deposit of one’s own money in a savings bank to the credit of another, without any qualifications expressed at the time, is of itself prima facie evidence of a gift to the latter of the fund deposited, an intent to the contrary may be shown, and the retention by the depositor of the deposit book, is some evidence of intent not to perfect the gift at the time of making the deposit. This, and the withholding from the person to whose credit the deposit is made, the knowledge of that fact, may indicate a purpose not to surrender dominion over the fund to the latter.
    Appeal from judgment entered on decision of Ontario Special term.
    The action was brought against the appellant and the Rochester Savings Bank, to require the former to execute to the plaintiff a check, or order on the bank, and for direction to it to pay an amount standing in the bank to the credit of William McGregor, the defendant’s intestate. The appellant alone defended. The trial court directed judgment for such relief in favor of the plaintiff. From which this appeal is taken.

      Henry M. Field, for app’lt; J. Henry Metcalf, for resp’t.
   Bradley, J.

The plaintiff deposited in the Rochester Savings Bank in June 1879, $140, and took a deposit pass"book, in wMch the amount was credited to William Mc-Gregor; and in December following she deposited $15 which was in like manner credited to him in the pass book. McGregor died in October, 1885, and .the defendant, his widow, became administratrix of his estate. She declined to execute to the plaintiff a check to enable her to draw the money from the bank. And thereupon this action was brought.

On its deposit the money became that of the bank, and the relation of debtor and creditor was apparently created between it and William McGregor. At the time of the deposit the money belonged to the plaintiff, who took and retained the pass-book in her possession, and so far as appears, McGregor was not advised that the money was, or had been deposited to his credit.

As between him and the bank, he was by this credit to him prima f acie the creditor of the bank, and entitled to draw upon it for the amount of the fund. The statute however provided that the money could not be drawn without the production of the pass book, (Laws 1875, chap. 371, sec. 32, as amended by Laws 1878, chap. 347, sec. 1),' subject to the power of the trustees by means of by-laws to dispense with its production in certain exceptional cases. ibid. The by-laws contain the unqualified requirement that it be produced. And in the pass-book delivered to the plaintiff appeared the by-laws of the bank, to the effect that money deposited, shall be drawn out only by the depositors, or some one legally authorized by them, but no person shall receive any part of it without producing the pass-book.

That on the decease of a depositor the amount to his credit shall be paid to his legal representatives, and that all payments made to persons producing the deposit-book shall be deemed valid payments to the depositors. Being the owner of the money, the plaintiff at the time of making the deposit had the right to apply such terms and conditions to the right to draw it from the bank as she pleased.

The .by-laws contained in the pass-book constituted a part of the contract under which the deposit was made, and the book imported the liability of the bank arising out of the transaction of the deposits made by the plaintiff. Smith v. Brooklyn Savings Bank, 101 N. Y., 58.

The question here is whether this sum deposited became an accomplished gift of the money, or the liability of the bank for its amount, to Wilham McGregor. And in view of the various authorities on the subject, it is not free from difficulty. The fact that the deposit was made to his credit is evidence of his right to • it, but the attending circumstances are competent evidence upon the question of the intent of the depositor in so making it. Mabie v. Bailey, 95 N. Y., 206; Brabrook v. Boston, etc., Savings Bank, 104 Mass., 228.

It does not appear that the plaintiff said anything at the time of making the deposit qualifying the purpose of the credit, to McGregor. She took the pass-book into her possession. It contained the contract which represented the liability of the bank to pay, and in it was expressed the terms upon which the right to draw the money depended. This denied to him the right to draw it without the production of the book. The fact that the plaintiff kept the book in her possession and under her control may bear somewhat upon her intent. And in respect to her purpose she, upon the trial, was asked and answered questions as. follows:

“Q. At the time you deposited the money did you intend to give him the money by depositing it in the bank ? A. Yes; if I hadn’t I wouldn’t have put it in his name.' Q. Did you intend to deliver it to him ? A. I never intended to deliver it to him while I was living. Q. You mean that you intended the money should be his after your decease % A. I never had come to the decision, but never, as long as I lived, he wasn’t going to have it; it might probably have happened, if he and I had got good friends, I might have handed him the book.” _

The trial court found that the plaintiff did not part with the title to the fund by depositing it in the bank to the credit of McGregor, and that he never acquired title to it. And we are inclined to think this conclusion was supported by the evidence. If she intended at the time, and by the act of deposit, to give him the money, his right to it then became complete, although she retained the pass-book, and she would be deemed to have held it in trust for him.

But if her intention was to not then consummate the gift, and with that view retained the possession of the book, the act of donation was not an accomplished fact, but may have rested in her intention to complete it at some future time. The evidence seems to permit such an inference. The book representing the undertaking of the bank to pay, as well as the conditions which must be observed in seeking payment from it, and had the character of a chose in action. It is in that view that it has been held that a gift of a fund deposited, or the liability of such a bank to pay it, may be made and consummated by delivery to the donee of a pass-book with intent to thus invest title in him. Camp’s Appeal, 36 Conn., 88; S. C., 4 Am. Rep., 39; Tillinghast v. Wheaton, 8 R. I., 536; S. C., 5 Am. Rep., 621; Hill v. Stevenson, 63 Me., 364; S. C., 18 Am. Rep., 231.

Our attention has been called to no case presenting a state of facts similar to that in this one, in support of the defendants’ contention.

In People v. Bank (36 Hun, 607,) the pass book was delivered to the party credited with the deposit, and checks were drawn by her on the fund and paid. It was there held that the gift was perfected by the transaction, and that there was no opportunity to effectually assert a mere intent of the depositor to the contrary.

The withholding the book, and the knowledge of the deposit from the defendant’s intestate, may be treated as some evidence of a purpose not to vest title in presentó.

In Howard v. Savings Bank (40 Vt., 597,) the book and knowledge of the deposit were withheld from the person credited with it, and the depositor died without having asserted any right to the money or made any effort to recall the gift. The conclusion was that title passed to the donee.

And in Blasdel v. Locke (52 N. H., 238,) information was given by the depositer to the donee of the gift of a sum deposited in a savings bank to the credit of the latter. The gift was held effectual although the depositor retained the book in her possession until her death. In that case it appeared that a by-law of the bank provided that deposits should be drawn only by the depositors, or persons authorized by them. The determination of those cases was evidently made upon the ground that the circumstances referred to constituted evidence of intent of the depositors to make the gifts complete.

In Pope v. Burlington Savings Bank (56 Vt., 284; S. C., 48 Am. R., 781,) the deposit was made by the plaintiff’s testator to the credit of C. payable to himself. He retained the deposit book, and the money could not be drawn without its production. Held, not a gift, for the reason that the depositor did not part with dominion over the liability of the bank to pay, and that it could not be treated as a trust in behalf of C.

In Robinson v. Ring (72 Me., 140; S. C., 39 Am. R, 308), it was held, that a deposit of one’s own money in a savings bank to the credit of another, without any declaration of trust contemporaneously or subsequently made by the depositor, who retains the deposit book in his possession, creates no gift, or trust to, or in behalf of the person to whose credit the fund is placed.

The view taken by the courts in the cases before cited, generally is, that the question is one of intent, which is not necessarily governed by the form given to the deposit. Northrup v. Hale, 72 Me., 275. When the purpose is expressed m the deposit to create a trust in behalf of another, it is effectual to create that relation, and to render the donee the beneficiary of the fund. This was the situation presented in Martin v. Funk (75 N. Y., 134), where the depositor took the relation of trustee for the person in whose behalf the deposit was made. And the retention by him of the possession of the pass book was consistent with such relation. To the same effect are Mabie v. Bailey (95 N. Y., 206), Smith v. Lee (2 T. & C., 591), Ray v. Simmons (11 R. I., 266; S. C., 23 Am. Rep., 447), Minor v. Rogers (40 Conn. 512, S. C., 16 Am. R. 69).

While we think that the deposit of one’s own money in a savings bank to the credit of another without any qualification expressed at the time, is of itself prima facie evidence of a gift to the latter of the fund deposited, an intent to the contrary may be shown, and the retention by the depositor of the deposit book (like the one is question) is some evidence of intent not to perfect the gift at the time of making the deposit.

In this fact, and in withholding knowledge from the person to whom the credit is so given, may indicate a purpose as of the time the deposit is made not to surrender dominion over the fund to the latter. In this view the element in the contract is essential which denies the right to draw the money without the production of the book. And in this one it is also provided that payments made to persons producing the deposit pass book shall be deemed valid payments to the depositors. It is, however, unnecessary to express any opinion of the construction to which that provision of the by-laws, in view of their other provisions, is entitled.

The question of fact in respect to the intent with which the deposit was made by the plaintiff, presented by the evidence, enabled the trial court to determine that it was not a consummated gift to the defendant’s intestate.

The judgment should be affirmed.

Smith, P. J., Barker and Haight, JJ., concur.


author: Smith, P. J.

text:
    Joseph F. Moore, App’lt, v. R. Le Barre Goodwin, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed February, 1887.)

    1. Contract—Waiver of right under.
    This action was brought upon a promissory note made by the defendant and payable to this plaintiff. The defendant alleged that the note was made for money advanced by the plaintiff upon an agreement by which the defendant agreed to make for the plaintiff crayon portraits of himself and wife at a price agreed upon. By the agreement, the portraits were to be made from photographs delivered to the defendant for that purpose, from which he was to advance them as far as might be, and to finish them from observations from life. The portraits were to be, in all respects, satisfactory to the plaintiff as likenesses of himself and wife, and if they were not so, he was under no obligations to accept and pay for them, and in that case the money advanced should be repaid him. Held, that if the defendant chose to waive the right to finish the pictures from life, and tender them as made from the photographs, it was competent for him to do so, subject to the plaintiff’s right not to accept them, if they did not comply with the contract, and if he wished a sitting, it was incumbent on him to notify the plaintiff.
    3. Same—What is not a refusal of leave to complete work according to.

      Held, that the defendant having delivered the pictures to the plaintiff, under circumstances in effect waiving this right, the plaintiff, by refusing to accept them as not satisfactory likenesses, could not be construed as refusing to permit the defendant to finish the pictures from life.
    3. Same—What is not compliance with.

      Held, that the defendant having alleged in his answer that the portraits were “finished and delivered” according to the terms of the agreement, was concluded thereby, and that the proof showing that the portraits as delivered were not according to the contract, the plaintiff was not entitled to recover.
    4. Same—Agreement that work shall be satisfactory to party CONSTITUTES HIM SOLE JUDGE.

      Held, that by the agreement the portraits were to be satisfactory to the plaintiff, he was the sole judge of their merits.
    Appeal from an order denying a motion for a new trial in an action tried at the Steuben circuit.

      A. Hadden, for app’lt; S. O. Olmstead, for resp’t.
   Smith, P. J.

The action is brought to recover the amount of a promissory note made by the defendant to the plaintiff, 18th of May, 1882, for fifty dollars. The defendant alleges that the note was given for money advanced by the plaintiff upon an agreement by which the defendant contracted to make for the plaintiff crayon portraits of himself and wife at the price of sixty dollars.

It appears that the portraits were to be made from photographs deliver to the defendant for that purpose, from which he was to advance them as far as practicable, and was to finish them from observations from fife. The portraits were to be in all respects, to the plaintiff, satisfactory likenesses of himself and wife, and in case they were not, the plaintiff was to be under no obligations to accept and pay for them, and in that case the money advanced on the note was to be repaid to him.

In December following, the defendant brought the portraits to Corning, where the plaintiff lived, and left them at a hotel there, and so notified the plaintiff. The plaintiff on seeing them was not satisfied with them, and in a few days wrote, the defendant that they were not such as he had -contracted for, and that he declined to receive them, and requested immediate payment of the note. The defendant received the letter, but did not answer it, and nothing further occured about the matter, until this suit was begun in September, 1883. The portraits were not completed when left at Corning, nor were they then such as the contract called for.

At the close of the defendant’s testimony, and again at the close of the entire evidence, the plaintiffs counsel asked the court to direct a verdict in favor of the plaintiff for the amount of the note. The requests were declined and the plaintiff excepted.

The court submitted it to the jury to say whether the plaintiff refused to permit the defendant to proceed to the completion of the pictures, assuming that they were not completed; and he instructed them in substance, that if the plaintiff did so refuse, he could not avail himself of the defendant’s non-performance of the contract, provided the pictures were then such as that he would have been required to accept them after they were provided. And he further instructed them, in substance, that the question of refusal depended upon the constructions of the plaintiff’s letter, in view of the circumstances disclosed by the evidence.

The plaintiff’s counsel excepted to the instruction in the charge that the jury might say that the defendant had made out a right to claim damages on the ground of a breach of contract caused by the plaintiff.

Upon a careful examination of the case, we are of the opimon that the exceptions above-stated were well taken, for the reason that there is no evidence that the defendant requested or proposed to do anything more to the pictures after he left them at Corning, or that the plaintiff refused to permit him to do anything more to them, but that the transaction was simply an offer on the part of the defendant to deliver the pictures as they were then, and a refusal on the part of theplaintiff to accept them.

The defendant testified: “I saw the plaintiff at the depot ■ from the train, and stepped out and spoke to him, and told him I had left the pictures at the Dickinson Hotel, and he said he would look at them. He inquired where they were and said he would not accept them unless they were satisfactory. I assured him that I meant they should be satisfactory.” The train moved out and the defendant returned home. On cross-examination he stated, “I did not take any pains to find Mr. Moore, and have an interview with him. I simply left the pictures, and went off. I never spoke to Mr. Moore after that until I came here to try this law suit.” It is true the witness stated that he expected to complete the pictures by “finishing them up from life,” but he did not say that he disclosed his expectation to the plaintiff or in any way intimated to him that he intended to do anything more to them.

The plaintiff’s version of the occurrence is as follows : ‘When he came up on the Monitor I was at the depot. He got off the train and said to me, I have got your pictures here.’ I said you are pretty late about it. He said he had first class pictures and said, I am going to Painted Post to deliver some other pictures, and will be down in the morning and deliver yours.’ I said all right.” The plaintiff saw nothing more of the defendant, but the next day he was told by some one connected with the Dickinson House that there was a package there for him, which proved to be the pictures, and after looking at them he wrote the letter.

The plaintiff also testified : “ He said he would see me in the morning and deliver the pictures; that is what he said; he did not say anything about finishing them up; I understood him they were finished.” * * * “He never offered to come and finish up the pictures from fife; I was ready to receive them'when he finished them according to his contract.” The defendant was recalled in his own behalf after that testimony was given, but he contradicted no portion of it, except the statement that he told plaintiff that he would deliver the pictures. What he said, as he testified, was that he would show him the pictures in the morning at the hotel.

It appeared from the testimony that the object of the stipulation in respect to finishing the pictures from life was to enable the artist to perfect his work, if he thought it necessary. And. for that purpose the plaintiff and his wife were not to visit the defendant at his studio in Ontario county, but the sitting was to be at their residence, and he was to notify them of his readiness to attend to them. If he chose to waive the sitting and tender the pictures made from the photographs, as finished, it was competent for him to do so, subject, of course, to the right of the plaintiff to refuse to accept them if they did not comply with the contract. It follows that if the defendant wished a sitting, it was incumbent on him to notify the plaintiff to that effect, in terms reasonably certain and not liable to be mistaken or misunderstood. Clearly, that he did not do. There was nothing in what he did or said, to give the plaintiff to understand that he intended or wished to finish the pictures from life. What he did and said was nothing more in effect than if he had sent the pictures to the plaintiff by express, with a note, saying: “Here are your portraits.”

In these circumstances, it seems to us a misinterpretation of the plaintiff’s letter to construe it as a refusal to permit the defendant to finish the pictures from life. He was required to notify the defendant promptly that he declined to receive the portraits, at the risk of being held to have accepted them, if he remained silent; and we regard his letter as having that effect and nothing more.

But if there is any question upon the evidence in regard to the effect of the transactions at Corning, in December, 1882, including the letter, it appears to be set at rest by the averments in the pleadings, that on the occasion referred to, “he delivered, the portraits to the plaintiff and he refused to accept the same.” Also, that said portraits “were made in a good and artistic manner and were in every respect made, finished and delivered, according to the terms of said agreement.” It is true that in the same connection the defendant also alleged that the plaintiff refused to allow the defendant “tomake such corrections as might be found necessary from studying the subjects from life;” and he also avers his readiness and willingness to make any necessary correction, etc., but has been prevented by the neglect and refusal of plaintiff. But those averments do not neutralize or modify the allegations first above referred to. They do not amount to a withdrawal of the issue tendered, of full performance, delivery and refusal to accept. The plaintiff met that issue in his reply, by admitting that on the occasion referred to, the defendant offered to deliver the portraits to the plaintiff, and that the plaintiff refused to accept the same; but he denied that he refused to allow the defendant to make corrections, etc. The defendant having alleged in his answer, in express and positive terms, that the portraits were “finished and delivered ” according to the terms of the agreement, he was concluded thereby, and as it was undisputed at the trial, that the portraits when delivered at Corning were not such as the agreement called for; the defense failed and the plaintiff was entitled to judgment.

The court also charged the jury, in substance, that if the agreement was that the portraits should be satisfactory to the plaintiff, the meaning of that provision of the contract was not that the caprice of the plaintiff should control, but that the painting must be a good one and come up to the standard required, and if it does, that he cannot say by caprice that he will not take it. Otherwise there would be no force in contracts. And the charge continued in the following language: “When a party will say, 11 will not accept it if it is not satisfactory,’ it means that the picture must be such that it will come within the contract, and be such as would be required to be satisfactory; and it would be if it was made as the contract fairly required.”

Without questioning the accuracy of this charge as applied to certain classes of contracts, we think it is not applicable to the case in hand, so far as it conveys the idea that if the jury think the party ought to have been satisfied he is bound although not satisfied. We understand that when a person contracts to perform work to the satisfaction of the other party to the contract, and the subject involved is a matter of taste, like the painting of a portrait, the rule is that the person for whom the work is to be done is the sole judge, and if he refuses to accept the work on the ground that it is not satisfactory, his decision cannot be questioned. One of the terms of the contract being that the work shall be satisfactory to him, if it is not so, the contract is not performed and he is not liable. He did not agree to accept what might be satisfactory to others unless it was satisfactory to him, and the contract does not give to the opposite party, or to a jury, nor to any other person, the right to decide whether he is or ought to be satisfied. These views are sustained by the case of Zaleski v. Clark (44 Conn., 218), where the work to be done was the making of a plaster bust of the deceased husband of the defendant. In Gray v. The Central R. R. Co. of New Jersey (11 Hun, 70) they were applied in the case of a contract for the purchase of a steamboat, “ provided, upon trial, they (the purchasers) are satisfied with the soundness of her machinery, boilers, etc.” See, also, the cases there cited in the opinion of Davis, P. J. (p. 73).

We question, however, whether this misdirection, if it be one, is ground for setting aside the verdict, inasmuch as it does not appear to have been excepted to at the trial, or to have been made a ground of the motion for a new trial before the trial judge. We have commented upon it in view of the possibility that the case will be tried again.

Upon the ground first stated herein, the order should be reversed and a new trial granted, costs to abide event.

Barker and Haight, JJ., concur.


text:
    John Mahler, Resp’t, v. Louis Schmidt, impleaded, etc., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed February 11, 1887.)

    1. Pleading—Joinder of causes of action—Code Crv. Pro., §484.
    The test as to whether causes of action are properly united in a suit under Code Civil Procedure, section 484, is; have the parties one connected interest centering in the point in issue in the cause, or one commo i point of litigation. If so, unconnected parties may be joined, even when different relief is sought against them; but if the action is against different persons, concerning things of distinct natures, in which some of the parties have no interest, then the actions cannot be joined.
    2. Same—Who proper parties defendant in action by judgment CREDITOR.
    A judgment creditor may bring an action to have a conveyance of the judgment debtor set aside as fraudulent. He may also unite in the same action any persons having liens upon the premises affected by the fraudulent conveyance, and if the judgment debtor has incumbered the premises by false and fraudulent liens, such liens may be annulled, and if the debtor has placed in the hands of others property to be covered up and hid for the purpose of keeping it from being applied in payment of his debts, such persons may be made parties and the property followed.
    3. Practice—Demurrer—What considered.
    Whether or not plaintiff has successfully stated the causes of action in sufficient detail to permit him to recover, will not be determined on a demurrer to the complaint, on the ground that the cause of action alleged against him (the demurring defendant) is improperly united with causes of action alleged against other parties.
    Appeal from an interlocutory judgment overruling a demurrer to plaintiff’s complaint.

      William L. Jones, for app’lt; Nathaniel W. Norton, for resp’t.
   Haight, J.

The complaint in this action alleges that the plaintiff had obtained a judgment against the defendant, Ferdinand Schmidt; that an execution had been issued thereon and returned unsatisfied, and that a conveyance of the real estate of such defendant had been made- through a third person to the defendant, Anna Maria Schmidt, the wife of Ferdinand Schmidt, without consideration for the purpose of hindering, delaying and defrauding the plaintiff as a creditor of Ferdinand Schmidt.

It also alleges that the defendant, Marcellus L. Steams, has, or claims to have, a hen upon such real estate by way of mortgage, which was in fact made for the benefit of John and Elizabeth Rechin; that the mortgage was executed by Ferdinand Schmidt and Anna Maria, his wife, to Marcellus L. Stearns; that it was not made for their benefit, but in fraud of the plaintiff’s rights for the benefit of the defendants, John and Elizabeth Rechin, who obtained the money for which the mortgage was given as a security, and used the same in paying for other real estate, the title of which was in their names; that John and Elizabeth Rechin are now indebted to Ferdinand Schmidt for the amount so obtained upon the mortgage which should be applied in payment of the plaintiff’s judgment. The complaint also alleges that said real estate is also incumbered by a mortgage executed by the defendant, Anna Maria Schmidt, to Jasper S. Young, which mortgage was not given to secure any debt of either of the defendants, Anna Maria Schmidt or Ferdinand Schmidt, but was given to secure the debt of Louis Schmidt, and for the purpose of delaying, cheating and defrauding the plaintiff; that Louis Schmidt is indebted to the defendant, Ferdinand Schmidt, which debt was made for the purpose of cheating and defrauding the plaintiff. The plaintiff prays judgment that the conveyance by Ferdinand Schmidt, through a third person, to Anna Maria Schmidt, be declared to be fraudulent and void, and that the amount that the Rechins obtained through the Stearns’ mortgage be made a lien upon their land purchased with this money; and that it be ascertained and determined what, if anything, is due from the other defendants in the action to Ferdinand Schmidt; and that the same may be directed to be applied in payment of plaintiff’s judgment. The defendant, Louis Schmidt, demurs to the complaint upon the ground that causes of action have been improperly united.

Section 484 of the Code provides that the plaintiff may unite in the same complaint two or more causes of action, whether they are such as were formerly denominated legal or equitable, or both, where they are brought upon claims arising out of the same transaction or transactions and connected with the same subject of action; but it must appear upon the face of the complaint that all the causes of action so united are consistent with each other, and that they affect all of the parties to the action. This provision of the Code is but.declaratory of the rule that previously existed, and the test is whether or not the parties joined in the suit have one connected interest centering in the point in issue in the cause or one common point of litigation. If so, unconnected parties may be joined, even where" different relief is sought against them; but if the action is against different persons concerning things of distinct natures in which some of the parties have no interest, then the actions cannot be joined. Fellows v. Fellows, 4 Cowen, 682.

A judgment-creditor may consequently bring an action to have a conveyance of the judgment-debtor set aside as fraudulent. He may also unite in the same action any persons having liens upon the premises affected by the fraudulent conveyance, and, if the judgment-debtor has incumbered .the premises by false and fraudulent liens, such liens may be annulled, and, if the debtor has placed in the hands of others property to be covered up and hid for the purpose of keeping it from being applied in payment of his debts, such persons may be made parties and the property followed. All such parties are interested in the centering points in issue in the case. They are all concerned in the common point of the litigation, which is the fraudulent transfer of the property of the judgment-debtor into their hands for the purpose of defrauding his creditors. Ogden v. Wood, 51 How., 375.

The chief question to be considered is as to the construction to be placed upon the complaint. It is claimed on the part of the appellant that it alleged causes of action for debt as against the Rechins and the appellant, and that if it fails to allege such causes of action the respondent cannot take .advantage of his failure to allege what he had attempted to. But a careful examination of the complaint discloses the fact that no such causes of action are alleged. The pleader evidently intended to charge that the judgment-debtor had borrowed money upon his real estate and incumbered it by a mortgage to Stearns, and had passed the proceeds over to the Rechins to be invested in real estate, of which they have the title, and that this was all done to cover up the property with the intent of preventing the collection of the plaintiff’s judgment; and that as to Louis Schmidt a loan had been made for which a mortgage was given to Young; and that the money so derived was passed over into the hands of Louis Schmidt, their son, to be held by him with like intent and purpose. These appear to be the causes of action that the pleader intended to state. Whether or not he has successfully stated such causes of action in sufficient detail as to permit him to recover, it is not necessary for us to now determine. If such are the causes of action attempted to be stated, they are actions which may properly he united. The appellant has not demurred upon the ground that no cause of action was stated as against him. His complaint is that the cause of action alleged against him is improperly united with causes of action alleged against other parties. He has no ground to complain if the cause of action attempted to be stated is one which may properly be united with the others.

We are, consequently, of the opinion that the judgment should be affirmed, with costs, but with leave to the appellant to withdraw demurrer and put in an answer within twenty days upon payment of the costs of the demurrer and of this appeal.

Smith, P. J., Barker and Bradley, JJ., concur