text:
    Joseph M. Williams, Assignee of John Sanderson, App’lt, v. John Boyle et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    1. Assignment for creditors—Assignee cannot sue for specific performance OF AGREEMENT MADE WITH ASSIGNOR TO PAT DEBTS.
    An assignee for creditors cannot prosecute an action for specific performance of an agreement with his assignor hy which defendants, for a valuable consideration, agreed to cancel an indebtedness to them and to pay certain other debts of his assignor, since a breach of such agreement would result in no other injury than such as could be adequately satisfied in an action at law for damages.
    3. Same.
    The only duty-of an assignee for creditors is to reduce to his possession the estate assigned to him and to distribute it as directed by the assignment and the statute among the actual, bona fide and subsisting creditors in proportion to their demands, less proper offsets and counterclaims. It is nowhere made his duty to secure the assignor’s discharge from his debts and liabilities or to enforce the specific performance of an - agreement to pay or satisfy one or more of such debts so that remaining creditors may deríve a benefit in increased dividends, unless assets on which such debts are liens are involved.
    3. Pleading—Demubbeb.
    On demurrer to a counterclaim set up in an answer it is proper to inquire into the sufficiency of the complaint, and the latter failing to show a cause of action to render judgment for its dismissal.
    Appeal from a judgment dismissing the complaint, granted on the trial of plaintiff’s demurrer to a counterclaim set up by defendants’ answer.
    Action by an assignee for the benefit of creditors to compel the specific performance of an agreement made by the assignor with the defendants prior to the assignment to the plaintiff, and pursuant to which the defendants promised to pay certain of the assignor’s debts, to procure his exoneration from certain other liabilities, and to discharge their own demands against him.

      Arthur H. Ely, for app’lt; Dewitt C. Morrell, for resp’ts.
   Bischoff, J.

Plaintiff, as» the assignee of .one John Sander-son, under an assignment for the benefit of creditors, sued for the specific performance of an agreement entered into between the assignor and the defendants, prior to the assignment, pursuant to which, in consideration of the assignor’s stock of merchandise, outstanding demands and moneys in bank having been conveyed to them, the defendants promised to pay the claims of three of the assignor’s creditors, to secure his exoneration and release from certain other specified obligations, and to discharge their own demands against him. Defendants answered the .complaint and among other things interposed a counterclaim for the value of certain chattels alleged to be a part of the stock of merchandise transferred to them, but of which plaintiff had secured possession and which he refused to deliver after due demand therefor. To this counterclaim plaintiff demurred, and upon the trial of the issue of law thus raised the court, at special term, while holding the counterclaim invalid and the demurrer thereto well taken, gave judgment for dismissal of the complaint, it appearing therefrom that the plaintiff was not entitled to the relief demanded. From this judgment the present appeal is taken.

We are of the opinion that the complaint did not set forth facts sufficient to authorize a decree for specific performance, since the defendants’ breach of contract resulted in no other injury to the assignor than such as could be adequately satisfied in an action at law for damages, the measure of the damages sustained being the aggregate amount of the assignor’s debts and liabilities assumed by the defendants and which they faded to satisfy. The fact alone that plaintiff’s interest in tue assigned estate was of an equitable character did not authorize him to prosecute an equitable action respecting it while adequate legal redress was available to him. N. Y. Guaranty Co. v. Memphis Water Co., 107 U. S., 205.

But the complaint was furthermore insufficient, as it appeared on the face thereof that the right to institute and maintain an action for the specific performance of the agreement, assuming the assignor to have had it, was not assignable, and so did not pass to the plaintiff under the general assignment to him.

It is asserted by counsel for appellant that, because the extinguishment of the liabilities assumed by the defendants will reduce the aggregate amount of the assignor’s indebtedness and thus lead to the payment of increased dividends out of the assigned estate to the remaining creditors, plaintiff has a substantial interest in the specific performance of defendants’ promise. Evidently this proposition proceeds from a mistaken conception of the duties of an assignee for the benefit of creditors. His only duty is to reduce to his possession the estate assigned to him and to distribute it as directed by the deed of assignment, and the statutes for such cases made and provided, Matter of Holbrook, 99 N.Y., 539, among the actual, bona fide and subsisting creditors of his assignor, in proportion to their demands, after crediting the assignor with all proper offsets and counterclaims. If one not interested in the as-l signed estate has assumed the payment of certain of the assignor’s! debts, the damage ensuing to the assignor from the non-perform-once of this obligation is property recoverable by the assignee, but it is nowhere made incumbent upon the latter, by statute, by the deed of assignment, or otherwise, to secure the assignor’s discharge from his debts and liabilities, or to enforce the specific performance of an agreement to pay or otherwise satisfy one or more of such debts and liabilities so that the remaining creditors may derive a benefit in increased dividends out of the assignor’s estate, unless assets upon which such debts and liabilities may be liens are involved, and any attempt by the assignee so to do is an act óf mere supererogation on his part.

Chap. 314, Laws of 1858, authorizes an assignee for the benefit of creditors to maintain an action for the recovery of property disposed of in fraud of the rights of creditors. It is apparent that this statute has no application to the present case, and exclusive of the additional rights thereby conferred, the ability of an assignee for the benefit of creditors to acquire by assignment any right to maintain an action which might have been maintained by his assignor must he measured by that of any other person to whom the same right is attempted to be assigned, and this extends only to the acquisition of rights of action, the successful prosecution of which carries with it the recovery of property, real or personal, in action or in possession, and not to torts ex delicto, or to such actions the confessed purpose of which is to secure some exclusive advantage to the assignor.

The purpose of the present action was to secure the assignor’s immunity from the specific debts and liabilities which the defendants had agreed to satisfy, and its prosecution excludes any intention to recover damages resulting to the assignor from defendants’ failure to perform their agreement, property which was included among the assets assigned. This immunity is personal to the assignor and incapable of transfer. That others who may ultimately be. entitled to participation in the distribution of the assigned estate, if the assignor is freed from his obligation to pay certain debts or discharge certain obligations, will be benefited, is not an answer to the objection to the maintenance of this action. With as great tenability could it be urged that an assignee for the benefit of creditors, by virtue of the assignment to him, acquires the right of the assignor to maintain and prosecute an action for the annulment of the latter’s marriage, because if the marriage is annulled the real estate assigned will be freed from the wife’s inchoate right of . dower and the husband’s creditors benefited to that extent

The pretense, therefore, of an assignment to the plaintiff of the assignor’s right to maintain and prosecute an action for the specific performance of defendants’ agreement amounts to nothing more than an assertion that the assignor has undertaken to assign to the plaintiff a bare right to litigate for the farmer’s benefit _ exclusively; but to secure his locus standi in a court of equity it must appear that the assignee’s successful prosecution of the action is susceptible of personal enjoyment by him, otherwise the assignment is void as against public policy and as savoring of maintenance. Pomeroy’s Eq. Jur., vol. 3, § 1276 and note 2; Am. & Eng. Ency. of Law, vol. 1, p. 833, note 1; Prosser v. Edmonds, 1 Younge & Coll. Exch., 481; Dickinson v. Burrell, L. R., 1 Eq., 337 ; Traer v. Clews, 115 U. S., 528; Graham v. R. R. Co., 102 id., 148; Milwaukee & Minn. R. R. Co. v. Mil. & West. R. R. Co., 20 Wis., 174, 183 ; Powell v. Knowler, 2 Atk., 224; Hill v. Boyle, L. R., 4 Eq., 260; De Hoghton v. Money, L. R., 2 Ch., 164, 169; McMahon v. Allen, 35 N. Y., 408; Flood v. Finlay, 2 Ball & B. Ir. Ch., 9.

Although the demurrer was to the counterclaim, it was proper on the trial thereof to inquire into the sufficiency of the .complaint, and the latter failing to show a cause of action, to render judgment for its dismissal. Corning v. Roosevelt, 18 Civ. Pro., 399.

Judgment affirmed, with costs.

Bookstaver and Pryor, JJ., concur.


source: Caselaw Access Project

author: Bischoff, J.

license: Public Domain

text:
    Fred. W. Davey et al., Resp’ts, v. Ernest A. Lohrmann, App’lt.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    1. "Witness—Impeachment.
    In. an action for eggs sold, where defendant claimed an allowance for losses on unsalable eggs, a witness called to impeach the defendant, after testifying that his reputation in the wholesale trade was bad, was permitted to testify that defendant made heavy returns of losses to him. Held, error.

      2. Same—Chaege.
    Where the only evidence as to the making of a tender was that of the defendant, whose testimony was unchallenged except by evidence tending to impeach his credibility generally, it is not error for the court to refuse to charge that defendant had proved a tender of the amount paid into court, and that if the jury found no greater sum due their verdict must be for defendant, as the jury is not bound to believe the defendant, though uncontradicted, as his testimony is that of a party in interest.
    Appeal from a judgment of the general term of the city court affirming a judgment of that court in favor of the plaintiffs entered upon the verdict of a jury, and affirming also an order denying defendant’s motion for a new trial. Action to recover the value of a quantity of eggs sold and delivered by plaintiffs to defendant.

      J. George Flammer, for resp’ts; Howe & Hummel, for app’lt.
   Bischoff, J.

Though we may be precluded from inquiry into the sufficiency of the evidence to sustain the verdict because of the absence of the statement that the case contains all the evidence material to the questions in controversy, Arnstein v. Haulenbeek, 16 Daly, 382 ; 34 St. Rep., 297 ; Aldridge v. Aldridge, 120 N. Y., 614; 31 St. Rep., 948, the exception to the ruling of the trial court had the effect of a notice to the respondent that the appellant will claim a legal error, and the burden was thereby put upon the respondent to supply, by way of amendment, any evidence which he deems material to the question sought to be reviewed,'and which had been omitted from the case. Halpin v. The Phenix Ins. Co., 118 N. Y., 165 ; 28 St. Rep., 788 ; Van Bokkelen v. Berdell, 130 N. Y., 141; 41 St. Rep., 312.

On the trial plaintiff called as a witness in rebuttal one Washington Winsorfor the purpose of impeaching defendant’s character for truth and veracity. The witness having stated 'that he was acquainted with defendant, proceeded to testify as follows:

“ Q. What is his (defendant’s) reputation for truth and veracity in the trade? A. Well, I should say that his reputation among the wholesale trade, was bad.
“Q. Why?
“ Defendant’s counsel objects.
“ Q. Had he dealt with you? A. Yes, sir.
“ Q. What were his returns on eggs that he bought from you; large or small ? ,
“ Defendant’s counsel objects as incompetent, irrelevant and immaterial.
“ The Court: I will allow it for the reason that this line of testimony was gone into by the defendant in the examination of the witnesses Bedlich and fiintze.
“ Objection overruled; defendant excepts.
“ A. His returns of losses with us were very heavy during the last portion of the time he dealt with us, the last month, or perhaps year.”

It is perfectly clear that this testimony was elicited with no other motive, and could have had no other effect than to impeach defendant’s credibility. In so far as it relates to transactions between the witness and defendant having not the faintest connection with the subject matter of the action, its incompetency and irrelevancy for such purposes is too apparent to require either argument or the citation of authority, and if considered as explanatory of the witness’ statement with reference to defendant’s alleged ill repute for truth and veracity, the testimony transcended the rule that particular instances of alleged want of veracity, or the exhibition of moral delinquency, are inadmissible. Corning v. Corning, 6 N. Y., 97; Anonymous, 1 Hill, 217; Jackson v. Lewis, 18 Johns., 504.

It is also evident from the observation of the trial justice that, but for his impression that defendant’s witnesses Redlich and Hintze, to sustain defendant’s credibility, had previously testified to particular transactions with him, he would have excluded the testimony objected to. If such testimony was in fact given, it does not appear from the case as it has been presented to us, and under -the rule stated in Halpin v. The Phenix Ins. Co., 118 N. Y., 165; 28 St. Rep., 788, it should have been supplied by respondent.

For the reasons stated we are of the opinion that the exception was well taken and that the judgment must be reversed. We cannot say that the 'error of admitting the objectionable testimony was harmless. It imputed to-the defendant a practice-of demanding allowance for ill-founded claims for losses alleged to have been sustained from the delivery to him of unsalable merchandise by the tradesmen with whom he dealt, and it may have influenced the jury in reaching the result they did. Nor can we consider the verdict, whiclh may be the result of deliberation affected by the objectionable testimony to defendant’s prejudice, in any aspect of substantial justice, so long as upon the evidence the jury would have been authorized to have rendered a verdict for the plaintiff in a lesser amount. In urging that plaintiffs have recovered no more than defendant by answer conceded to be due, twenty-two cases containing 660 eggs,- at twenty cents per dozen, respondents’ - counsel fails to notice that the defendant claimed allowance for unsalable eggs, the justice of which is at least partly conceded by the complaint; and it may, therefore, be that the rejection of defendant’s claim for this allowance, which was supported by evidence on the trial and referred to in the justice’s, charge, was in part at least induced by the testimony objected to and erroneously admitted.

The exception to the refusal to charge as requested defendant’s counsel is without merit. Among the defenses interposed was that of a tender before suit of $98.80, and this was accompanied by payment of the amount into court. On the trial the only evidence which was relied upon in substantiation of the defense was the testimony of the defendant, wholly unchallenged in this respect except by evidence tending to impeach his credibility generally. Counsel for defendant thereupon requested the court to charge that the defendant had proved a tender of the amount paid into court, and that if the jury found no greater sum due plaintiffs from the defendant, their verdict must be for the latter. The vice of this request was that it sought to invade the province of the jury. The jury was not bound to believe the defendant, though he was uncontradicted, as his testimony was that of a party in interest, Elwood v. Telegraph Co., 45 N. Y., 549, 553; Gildersleeve v. Landon, 73 id., 609; Honegger v. Wettstein, 94 id., 252, 261, and if made as requested, the charge would have required the jury to accept defendant’s testimony as true. The request was, therefore, properly refused.

The judgments of the general and trial terms of the court below are reversed and a new trial ordered, with costs to abide the event.

Daly, Ch. J., and Pryor, J., concur.


author: Pryor, J.

text:
    Robert B. Lawrence, App’lt, v. The Mycenian Marble Co., Resp’t.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    1. Landlord and tenant—Eviction.
    Defendant rented of plaintiff a loft for a term of years, the lease excepting the hallways and hatch and elevator ways, which were to be for the common use of the tenants. In an action for rent after abandonment of the premises the evidence tended to show that the use of the elevator was essential to the beneficial enjoyment of the demise, and that plaintiff for long periods of timé allowed the elevator to be and remain out of repair, and failed to supply persons to run the same. Held, that these facts would warrant a finding of an eviction.
    2. Same—Evidence.
    Evidence of previous neglect to maintain the elevator is relevant proof that its subsequent inefficiency was not casual or inadvertent.
    Appeal from judgment on verdict, and order denying motion, for new trial. The opinion gives the material facts.

      Truax & Crandall, for resp’t; John H. Cole, for app’lt.
   Pryor, J.

The action is for rent, and the defense eviction. The lease, which was of a loft for a term of three years and seven months, excepts from the demise the hallway and the hatch and elevator ways, which are for the common use of all tenantsand contains a covenant for quiet enjoyment. The answer affirms that the elevator and proper operation thereof constituted an essential and valuable part of that portion of said building so demised to the defendant, and the beneficial enjoyment thereof;” and alleges that the plaintiff did, for long periods of time, permit said elevator to be and remain out of repair and useless, and failed to provide and supply any or adequate service or persons to manage or operate the same; and thereby deprived the defendant of the beneficial enjoyment of the premises occupied by it under said lease,” and that, in consequence of such deprivation, defendant abandoned the premises.

, Upon the issue thus raised, defendant assumed the affirmative, and gave evidence in support of the facts alleged as an eviction. On the close of defendant’s case, plaintiff made a motion for the direction of a verdict, and duly excepted to its denial. In disproof of the facts constituting the alleged eviction, plaintiff addueed evidence, and at the close of his case, renewed such motion. To a denial of this motion he duly excepted.

. Appellant’s main reliance for reversal of the judgment is upon the contention that the evidence was insufficient to support an inference of eviction. But we are to assume the facts involved in the verdict, and they are: that the plaintiff retained charge and control of the elevator ; that its use by defendant was part and parcel of the estate demised, and indispensable to its beneficial enjoyment; that of such enjoyment the defendant was deprived by plaintiff’s persistent mismanagement of the elevator and neglect to repair it; and that because he was so denied the beneficial enjoyment of the premises, the defendant abandoned them before the rent in suit fell due. That upon proof of these circumstances the jury were warranted in finding the fact of eviction is hardly a disputable proposition in the jurisprudence of New York. Tollman v. Murphy, 120 N. Y., 345 ; 31 St. Rep., 483 ; Koehler v. Scheider, 15 Daly, 198, 199 ; 23 St. Rep., 68 ; Bradley v. De Goicouria, 12 Daly, 393, 397; Duff v. Hart, 40 St. Rep., 676; Denison v. Ford, 7 Daly, 384; Bank v. Newton, 57 How., 152 ; 76 N. Y., 616 ; Cohen v. Dupont, l Sandf., 260 ; Dyett v. Pendleton, 8 Cow., 728 ; Edgerlon v. Page, 20 N. Y., 281.

Appellant maintains, however, that in so far as the verdict finds that by his wrongful act or omission the defendant was deprived of the benefit of the elevator, it is contrary to the weight of evidence. We are not of that opinion. True, the issue was not without proof on either side ; but our impression is that the preponderance is rather with the defendant. At all events, the balance is not so uneven as to suggest that apparent miscarriage of justice which alone authorizes a new trial.

Still, appellant challenges the judgment for error in the admission and exclusion of evidence.

He contends, and rightly contends, that expert opinion is not competent evidence of the law of the forum. But the question objected to was propounded on cross-examination of the plaintiff, a lawyer witness, and was legitimate as seeking to impair the effect of his former statement that possession of the premises had not-been surrendered. Moreover, the evidence was immaterial, since the question of a surrender of the premises was not an issue before the jury.

The exclusion of evidence of opinion as to the cause of the breaks In the elevator was a correct ruling, because, among other reasons, the question assumed that the witness had himself examined the elevator, whereas the proof was of an inspection by others and of second hand information on his part

Appellant’s request for a direction to the jury, “ to disregard all evidence relating to the alleged causes of complaint prior to 10th November,” was rightly refused; because, whatever the effect of the transaction of that day, previous neglect to maintain the elevator was relevant proof that its subsequent inefficiency was not casual or inadvertent.

Unquestionably it was error to admit evidence of the ammonia nuisance without proof of plaintiff’s connection with it; but, upon the failure of such proof, the court expunged the evidence from the record, and said to the 'jury: “1 charge you that you must disregard the evidence * * * and make no allowance ” for that nuisance in arriving at a verdict. Thus the error was entirely obviated. Holmes v. Moffat, 120 N. Y., 159; 30 St. Rep., 779; Gall v. Gall, 114 N.Y., 109; 22 St. Rep., 746.

The record being free from error, and the verdict founded upon conflicting evidence and a charge of singular clearness and correctness, it results that the judgment must be affirmed.

Judgment affirmed, with costs.

Daly, Ch. J., and Bischoff, J., concur.


text:
    Nicholas Betjeman, Resp't, v. The New York Elevated Railroad Co. et al., App’lts.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    1. Railroad—Elevated—Findings.
    In an action against an elevated railroad the referee found that the number of persons passing through the avenue and past the premises in suit and the stores thereon is multiplied and increased to a large extent by the presence of the road and its station, but refused to find that “ the proximity of defendant’s station is advantageous to all the stores on plaintiff’s premises.” Held, that this did not result as a necessary conclusion from the former finding, and that under the circumstances of the case the. referee did not err in refusing so to find.
    3. Same—Value of easements.
    He also refused to find that “ the easements, if any, appurtenant to the-land described in the complaint and taken for said railroad uses, aside from any consequential damages, if any, to said premises from said taking, have in themselves only a nominal value.” Held, no error; that the value of the easements in themselves and apart from the property was in no aspect of the case a relevant or material fact.
    Appeal from judgment in equity upon the report of referee.
    Action for injunction against the maintenance and operation of defendants’ elevated railroad, and for damages.

      G. Saclcett, for resp’t; J. G. Thomson, for app’lt
   Pryor, J.

Appellants impugn the judgment because of an excessive allowance for fee and rental damages. But, then, with-commendable candor their counsel concedes the existence of evidence tending to support the judgment.

In reviewing the decision of- the trial court on a question of fact, the appellate tribunal, even of the same court, exercises no-arbitrary power in its determination. The general term is still' controlled by the evidence; and to authorize a reversal of the finding below it is requisite not only that the proof appear upon paper to preponderate in favor of the appellant, but that the preponderance be so clear and decisive as to compel the inference-that the trial court erred in its conclusion. Baird v. The Mayor, 96 N. Y., 567. On appeal from the judgment of a general term reversing the judgment of a referee on a question of fact, the court of appeals has the same jurisdiction in reviewing the evidence that we have of appeal from a decision.at special term. The limits of this jurisdiction are clearly defined by adjudged cases.

“ When there is evidence on both sides and the case is balanced, •and the mind of the court has been called upon to weigh conflicting statements and inferences, and decide upon the credibility of ■opposing witnesses, much weight must be accorded to the special adaptation of the trial court to investigate and determine such ■questions.” Baird v. Mayor, supra, p. 577.

"The general disposition of the courts is to sustain the referee in his findings of fact. * * * If, when reading the evidence, this court should be of the opinion that the conclusion might well have been either way, then the fact that the referee saw the witnesses, heard them testify and had the nameless opportunities of judging of their character that personal acquaintance only can give, should induce us to defer to his judgment. If, upon the other hand, we are clear that he erred in deciding the facts, we are bound to reverse his judgment.” Westerlo v. De Witt, 86 N. Y., 840, 344-5. “It is not the same question as if we inquired whether we should have found the same facts in the same way as did the referee. It is, rather, are we so certain that the referee was in error as that we will assume to reverse his judgment.” Crane v. Baudouine, 55 N. Y., 256, 264. “The decision of the referee will be upheld, unless it appears to be manifestly against or contrary to evidence.” Sherwood v. Hauser, 94 N. Y., 626.

Applying the rule thus prescribed by the court of appeals in estimating the weight of the evidence upon the issue before the referee, we cannot say that it so preponderates against his decision as to require its reversal.

But, appellants impute error to the refusal of the referee to find that the proximity of the defendant’s station is advantageous to all the stores on plaintiff’s premises.” It is not error to refuse a finding unless the fact be established by conclusive evidence. Stewart v. Morss, 79 N. Y., 629; Andrews v. Raymond, 58 id., 676; Thomson v. Bank, 82 id., 1; James v. Cowing, id., 449, 458.

Appellants contend, however, that since the referee found that “the number of persons passing through Third avenue, and past the premises in suit and the stores on said premises, is multiplied and increased to a larger extent by the presence of the elevated railroad and its station,” it results, as a conclusion of law, that all the stores were benefited by the railroad. We are not aware of the legal presumption upon which appellants rely; nor can we concede it to be an inevitable inference of fact that an increase in the number of passengers on a street involves a necessary enhancement of value in all property on the street. Whether that be the consequence, depends upon the peculiar situation, ■characte" and uses of the property, and a diversity of other cir■cnmstances, all of which we are to assume were of due weight upon the judgment of the referee. He did find that from the augmented volume of passage along the street advantage ensued to the comer store; but this may be, and yet the side store received no benefit from the same cause. The fact was for determination by the referee; and we are not authorized by the evidence to rule that the contrary of his findings was conclusively-established. Bohm v. M. E. R. Co., 129 N. Y., 576, 585; 42 St. Rep., 247, is not an authority upon the point in discussion, for there the facts requested to be found had been established by uncontradicted evidence,” and the court had “ refused to find them because they were in his judgment immaterial.”

Again, appellants challenge the judgment for error of the referee in refusing to find that “ the easements, if any, appurtenant to the land described in the complaint, and taken for said railroad uses, aside from any consequential damages, if any, to the said premises from the said taking, have in themselves only a nominal value.”

If it be possible to form a conception of an easement separate and apart from the tenement to which it is attached, at all events here plaintiff’s rights in the highway were appurtenant to his abutting property; and the question for decision was, not the value of those rights in themselves, but their value in connection with that property. The principle of their value was their effect on-the property ; and the measure of their value the amount of depreciation of the property caused by their severance from it Bohm’s case, supra.

In no aspect of the case, therefore, was the value, of the easements in themselves and apart from the property, a relevant or material fact. The only relevant or material inquiry before the referee was the value of the easements as appurtenant to the property ; and he was in the right when he refused a finding upon a purely abstract and impertinent proposition. But, argues the learned counsel for appellants, by declining to find the easements,, in themselves, to be only of nominal value, the referee by implication affirmed them to be of substantial value; and that would have been the legal inference had the fact been relevant and material to the issues under investigation. The question propounded to the referee not being in the case, the presumption is that he declined to solve it because foreign to the controversy.

Finally, appellants object to the judgment because it “ awards compensation for permanent depreciation of plaintiff’s premises caused by the noise of defendants’ railway.”

Two, answers to the contention are obvious upon the record t First, it is apparent from the referee’s fourth conclusion of law that no such element entered into his estimate of fee damages; and secondly, that were it otherwise, the error is not presented by a sufficient exception. Messenger v. M. R. Co., 129 N. Y., 502; 42 St. Rep., 96; Mitchell v. M. E. R. Co., 132 N. Y., 552; 43 St. Rep., 476.

Judgment affirmed, with costs.

Daly, Ch. J., and Bischoff, J., concur.


text:
    Charles Nette, Resp’t, v. The New York Elevated Railroad Co. et al., App’lts.

      (New York Common Pleas. General Term,

      Filed November 7, 1892.)

    Railed ad - -Elevated—Findings—Benefits.
    Where there is no finding that the railroad was of no benefit to plaint'iff’s property, and the evidence is ample to warrant a finding of the fact of su"h benefit, a refusal to find on request that “ in estimating the damages, if any, the benefits accruing to said premises, and peculiar thereto, from the maintenance and operation of said railroad should be set off against any inconvenience resulting from said railroad to said premises," is error.
    Appeal from judgment in equity, awarding an injunction and damages against defendants.

      Robert Sewell and J. Aspinwall Hodge, Jr., for resp’t; William R. Page, for app’lts.
   Pryor, J.

In order to determine the measure of damages to which plaintiff might be entitled, if to any, defendants requested the learned referee to find, as a conclusion of law, that in estimating the damages, if any herein, the benefits accruing to said premises and peculiar thereto, from the maintenance and operation of said railroad, should be set off against any inconvenience resulting from said railway to said premises.” The finding was refused, and the defendants duly excepted. Here was error. Messenger v. R. R. Co., 129 N. Y., 502, 506; 42 St. Rep., 96.

That the request propounded the correct rule of law applicable to the case, is no longer open to question in the courts of this state, Bohm v. R. R. Co., 129 N. Y., 576; 42 St. Rep., 247; Newmans. R. R. Co., 118 N. Y., 618; 30 St. Rep., 36; and the defendants were entitled, therefore, to its observance in the award of damages against them. The inevitable inference from the refusal of the referee to recognize the rule in the trial of the case is, that it was of no effect upon bis decision, and that in the computation ■of damages he made no allowance for benefits to the property from the presence and operation of defendants’ railroad. Had he found that the railroad is of no benefit to plaintiff’s property, or were there no evidence in the case authorizing a finding of such benefit, the refusal might be sustained, because involving denial a mere abstract proposition, and so of no detriment to defendants.

' But, since the referee omits to find the absence of such benefit, and since the evidence is ample to warrant a finding of the fact of such benefit, Purdy v. R. R Co., 13 N. Y. Supp., 295, 299; 36 St. Rep. 43, it is impossible for us to say that the referee, in the award of damages against defendants, did not decline to credit them with the effect of benefits actually communicated to plaintiff’s property by the presence and operation of their railroad.

The amount of damages allowed to plaintiff is, upon a negation of the rule propounded in the request, perfectly consistent with the hypothesis that, on a balance of loss and benefit to the property from the railroad, benefit preponderates over loss.

For apparent error in the record of probable prejudice to appellants, the judgment must be reversed.

It may not be without advantage to the parties on another trial of the action, if we express the doubt we entertain, whether the complaint should not have been dismissed for defect of proof of ■substantial injury to plaintiff’s property. Hoffman v. R. R. Co., ante, 711.

Judgment reversed, and a new trial ordered, costs to abide event

Daly, Ch. J., and Bischoff, J., concur.


text:
    Agnes Golden et al., Resp’ts, v. The Metropolitan Elevated Railway Co. et al., App’lts.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    1. Railboad—Elevated—Damages to dentals and fee—Noise—When AN ELEMENT.
    In an action by an abutting owner against an elevated railroad company to recover damages for loss of rentals, and damages to the fee by reason, of the presence of the road, Reid, that noise is not an element of fee damage, but is of past damages.
    3. Same—Evidence as to bental value.
    Evidence that, as a general rule, rental values have diminished since the presence of the railroad is competent; but not proof of the special rent of a particular house on another street not in the immediate vicinity.
    Appeal from judgment in equity, awarding an injunction and damages.

      Abbett & Fuller (Henry Schmitt, of counsel), for resp’ts; Davies & Rapallo (Samuel Blythe Rogers, of counsel), for app’lts.
   Pryor, J.

With impressive earnestness the learned counsel for appellants contends that the award of damages, past and permanent, is for amounts quite beyond any sums which the proof authorizes. We do not so understand the evidence. In deference to the insistence of counsel we have examined the record with uncommon care, and the result is a persuasion that the conclusion of the trial court is not without adequate support. The special point, so confidently urged, that the fee damage is two thousand dollars in excess of the estimate of respondents’ own witness, however startling in the statement, ceases to be of force when we consider that the estimate makes no allowance for the subsequent expenditure in improvement of the building. Then, too, the evidence is ample to justify an inference that, but for the railroad, the value of the premises would have exhibited that general advance so conspicuous in properties along adjacent streets not affected by the railroad. At all events, these were circumstances for consideration by the learned trial judge; and we are not to substitute our judgment for his in deducing conclusions from evidence of so equivocal or ambiguous an import as to be susceptible of diverse constructions.

Since the proscription by the court of last resort of all direct testimony to the effect of the railroad on the value of property, the fact is to be ascertained only by evidence, at best, of an indeterminate and inconclusive character; and the case must be peculiar indeed in which the judicial mind can repose upon the assurance of an absolute conviction. We may doubt the correctness of the decision below ; we may even incline to a contrary conclusion j and still we shall not be authorized to reverse the judgment. Betjeman v. R. R. Co., ante, 721.

But the judgment is challenged for error in law; and we are to determine whether it be so invalidated.

It is an unquestionable proposition that noise is not an element of fee damage; and, in effect, the trial judge so rules in his conclusions of law. But appellants say that nevertheless allowance is made for noise in the award of such damage. We do not so read the record. True, noise is found as- a fact, and rightly ; because it is an element of past damages, Kane v.E. R. R. Co., 125 N. Y., 164; 34 St. Rep., 876; Messenger v E. R. R. Co., 129 N. Y., 503 ; 42 St. Rep., 96 ; Moore v. E. R. R. Co., 130 N. Y., 523 ; 42 St. Rep., 588 ; Mitchell v. E. R. R. Co., 132 N. Y., 553 ; 43 St. Rep., 476, but that it entered into the estimate of fee damage is not apparent At most, the argument of appellant warrants a conjecture that possibly evidence legitimately in the case may have been applied to an improper purpose ; but this is not a sufficient demonstration of error. Mitchell v. E. R. R. Co., 132 N. Y., 552 ; 43 St. Rep., 476 ; Messenger v. E. R. R. Co., 129 N.Y., 503 ; 42 St. Rep., 96.

Appellants offered proof of the specific rent, in 1876, of particular houses in Houston street, but on respondents’ objection the evidence was excluded. The respondents had previously tendered evidence, which on appellants’ motion was rejected, of the rent of a house in the vicinity and on the same street with the premises in question. Adhering to the rule which appellants themselves had procured to be established for the trial of the case, the court denied their offer, but received evidence of the general course of rentals in Houston street, that isr whether they were higher or lower. The witness testified that the rents were lower since the construction of the railroad. The court was not only consistent but was correct in its ruling. That, as a general fact, rental values have diminished since the presence of the railroad, is competent evidence, Drucker v. E. R. R. Co., 106 N. Y., 157 ; 8 St. Rep., 599 ; not so proof of the special rent of a particular house on another street, “not,” as the court observed, “ in the immediate vicinity.” Doyle v. E. R. R. Co., 128 N. Y., 488; 40 St. Rep., 474. Were the specific objection to the question untenable, which, however, it is not, N. Y. E. R. R. Co. v. Fifth Nat. Bank, 135 U. S., 432, still the ruling should be sustained, because the evidence Was essentially and irreparably incompetent. Tooley v. Bacon, 70 N. Y., 34, 37.

In any event the error, if such it be, was of no prejudice to appellants ; for the witness testified that “ the rents are less by from $50 to $100 on each house ” than before the railroad, thus showing not only the fact, but also the ratio of diminution.

The pendency of a common law action for past damage was no bar to the recovery of such damage in the present suit, and for two decisive reasons, first, the defense was not pleaded, and secondly, the plaintiff tendered a discontinuance.

Observing no error in the record, we must affirm the judgment.

Judgment affirmed, with costs.

Bookstaver, J., concurs.


author: Lewis, J.

text:
    John Vellum, Resp’t, v. Charles Demerle, Impl’d, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    1. Mortgage—Estoppel.
    Where a husband who has quitclaimed to his wife property previously conveyed to them both, procures a loan thereon by representations that the wife is the owner and the wife gives a mortgage thereon, the husband is estopped, upon her death, from claiming that the land was held by himself and wife as tenants by the entirety, and that the mortgage is not a lien.
    2. Same.
    Such estoppel may be availed of by the assignee of the mortgage, where it was understood at the time of giving the mortgage that the mortgagee intended to assign it.
    Appeal from judgment in favor of plaintiff in an action to foreclose a mortgage.

      Elihu R. Sherman, for app’lt; William W. Hammond, for resp’t.
   Lewis, J.

This is an action to foreclose a mortgage upon real estate. The premises mortgaged were conveyed to the defendant, Charles Demerle, and Mary E. Demerle in 1874. They were at the time of the conveyance to them husband and wife, but no mention of that fact was made in the deed to them. On the 4th day of June, 1879, Mr. Demerle executed and delivered to Jacob Wolfe a quitclaim deed of the premises in question, and on the same day Wolfe and his wife conveyed the premises by a quitclaim deed to Mary E. Demerle. These deeds were duly recorded. The record title to the mortgaged premises remained in Mrs. Demerle until the time of her death, which occurred on the 6th day of March, 1890. Mrs. Demerle left her surviving her husband, Charles Demerle, and several children of the marriage.

On the 15th day of August, 1889, the defendant, Charles Dernerle, requested Mr. James Read to sell him a threshing machine, at the price of $950, on credit; and, to induce Mr. Read to sell him the machine on credit, Demerle stated and represented to Mr. Read that his (Demerle’s) wife was the owner of the premises mentioned; that he had quitclaimed his interest in the land to his wife, and that she owned the farm; and he promised and agreed that, if Read would sell him the machine on credit, Mrs. Demerle would give her note for the purchase price, and would secure its payment by mortgage upon the farm. Read replied to Demerle that he was not in financial condition to hold the note and mortgage himself, but that he would look around for a day or two, .and if he could find some one to take the securities, he would sell Mr. Demerle the machine. Mr. Read found that the plaintiff would take the securities, and, believing Demerle’s representations to be true, and relying upon them, sold and delivered the machine to Mr. Demerle, and Mrs. Demerle gave Mr. Read the note and mortgage in question in payment of the machine, and on the 25th day of ¡November following Read assigned and transferred the note and mortgage to the plaintiff. The note falling due, and not being paid in full, this action was instituted to foreclose the mortgage. Demerle interposed an answer, That, at the time of the execution by Mary B. Demerle of the mortgage described in the complaint herein, this defendant and said Mary E. Demerle owned the premises described in said mortgage as tenants by the entirety; that by the death of said Mary E. Demerle, wife of this defendant, on or about the 4th day of March, 1890, this defendant became the owner in fee of said premises, and this defendant is now the owner in fee of said premises; that this defendant did not join in the execution of said mortgage, and that said mortgage is not a lien upon said premises.” The action came on for trial at a term of the Erie county court, and judgment was directed for the plaintiff for the foreclosure of the mortgage and the sale of the premises, and an appeal was taken therefrom to this court

It is the contention of the defendant, Charles Demerle, that, as he and his wife held the title to the premises as tenants by the entirety, he could not, while his wife was living, convey his interest in the property, and that the deed to Wolfe did not convey any interest in the land thus held by himself and wife, and that upon the death of his wife he became seized of the entire estate, free from the lien and incumbrance of the mortgage. Whether this contention be sound or not it is not necessary to consider here, for this judgment, in our opinion, should be affirmed upon the ground that the defendant is • estopped from questioning the lien of the mortgage. After making the representations he ■ did to Read, and thereby inducing him to part with his property, he should be held to be estopped from questioning the validity of the mortgage. It would be a miscarriage, certainly, of justice if he could be allowed, after inducing Read to part with his property upon such representations, to set up the invalidity of his wife’s title. The owner of the legal title who acquiesces in the sale of the land by another, and advises and encourages the sale, will be estopped from setting up his title against the purchaser. Storrs v. Barker, 6 Johns. Ch., 166; Wood v. Seely, 32 N. Y., 105. A party who stands by in silence, and permits another to act upon an erroneous state of facts, will not be permitted thereafter to set up the truth to the injury of such person. Erie Co. Savgs. Bank v. Roop, 48 N. Y., 292; Lee v. Porter, 5 Johns. Ch., 268. All the knowledge Read had concerning Mrs. Demerle’s title, so far as the' record before us shows, was derived from his conversation with. Demerle, heretofore stated. He .did not know whether Demerle and" his wife held the title to the farm as tenants in common, "joint tenants, or as tenants by the entirety. Notwithstanding Mr. and Mrs. Demerle sustained the relation of husband and wife to each other, they could have held the title either as joint tenants, tenants in common, or tenants by the entirety, depending upon the form of the conveyance under which they got the title. Demerle said to Mr. Read that he had conveyed to his wife, and that she owned the farm. Read was justified in assuming that their title was such that Demerle could convey, as he represented he had, to Ins wife. Ignorance of the law will not prevent the application of the rule of equitable estoppel. Tilton v. Nelson, 27 Barb., 595.

It is suggested by the appellant that the representations were made to Mr. Read, and not to the plaintiff, and that the plaintiff, who afterwards took an assignment of the mortgage, cannot avail himself of the doctrine of estoppel. Read, as we have seen, stated to the defendant that he was not able to hold the securities and give the credit, but if he could find some one who would, he would make the trade, and that he did find one who would take the securities, and he thereafter assigned them to the plaintiff. The plaintiff, we think, took the securities with all the equities that Read had in them.

While the complaint, as is contended by the appellant, fails to state the facts out of which the estoppel arises, it does not appear that the plaintiff was aware of the facts at the time the complaint was drawn. The facts are stated in the defendant’s answer. The plaintiff was at liberty to meet these allegations in the defendant’s answer by proving the facts out of which the estoppel arose, and if necessary the complaint can be amended to meet the facts. But we do .not deem it necessary. Plaintiff was entitled to the relief demanded in his complaint on the evidence presented, and. the judgment appealed from should be affirmed, with costs.

Dwight, P. J., and Macomber, J., concur.


author: Titus, Ch. J.

text:
    Christian Hope, Pl’ff, v. The United States Baking Co., Def't.

      (Superior Court of Buffalo, Special Term,

      Filed November 21, 1892.)

    1. Pleading—Amendment.
    While a party may not by amendment join causes of action belonging to the different classes specified in the Code, yet he may amend by changing his cause of action from one class to another, viz.: from one of tort to one on contract.
    3. Same.
    Plaintiff brought this action for wrongfully harboring his son and depriving him of his services. On the trial it appeared that plaintiff had consented to the son's employment by defendant and demanded his wages. After reversal of a judgment in his favor, plaintiff moved to amend so as simply to claim the wages earned by his son. Held, that the amendment should be allowed in furtherance of justice, but upon terms, as the fault is with the plaintiff.
    Motion for leave to amend complaint.

      Brown & Sells, for the motion; Marshall, Clinton & Wilson, opposed.
   Titus, Ch. J.

This is a motion by the plaintiff for leave to amend his complaint.

The plaintiff alleges in his original complaint that the defendant, against the command of the plaintiff, wrongfully harbored his son and deprived him of his services. On the trial it appeared that the plaintiff’s son, who was a minor, engaged to work for defendant at a stipulated price per week; that the plaintiff, his father, had knowledge of such employment and sanctioned it, and •demanded the boy’s wages of the defendant The case was tried and submitted to the jury and a verdict of eighty-five dollars, which represented ■ the wages earned' by the boy, was given in favor of the plaintiff.

On a motion for a new trial upon the minutes, the court set. aside the verdict and ordered a new trial on the ground, as appears from the opinion of Judge Hatch, that the father could not maintain an action for harboring his son after having acquiesced in his employment, and that the plaintiff’s remedy was by an action for the boy’s services.

The plaintiff now asks to amend his complaint by abandoning the claim for wrongfully harboring his son, and simply claiming the amount of wages earned by him at the rate of $7.50 a week. It. is not questioned that under § 723 of the Code of Civil Procedure-the court has power to allow an amendment in a proper case, but it is claimed that the amendment which changes the nature of the-action from one of tort to contract is not authorized and cannot-be made.

The question of the power of the court to grant amendments-under §§ 172 and 173 of the old Code and under similar provisions of the new Code has been passed upon many times and numerous cases may be found; but it is necessary to refer to but one or two, which seem to be in point and decisive of the question here raised.

In Brown v. Leigh, 49 N. Y., 78, the plaintiff in his complaint claimed the fee of certain premises, alleging the possession in himself, and that the defendant unjustly claimed an estate in the premises, and asked for relief that he be debarred of all claim in the land. After the defendant had answered denying the allegations in the complaint, the plaintiff served an amended complaint simply alleging that he was the owner of the land, and that the defendant was in the wrongful possession, and demanded judgment for the recovery of the premises and damages for withholding. The court held that a party may amend by abandoning his former cause of action and set up such a cause of action as he could have done in the original complaint. Judge Grover, in writing the opinion of the court, says : “ The plaintiff cannot in an amended complaint add a cause of action belonging to a different class from those in the original, retaining the latter; this would make the complaint demurrable under § 144; * * * but when the causes of action in the original complaint are abandoned this reason no longer applies, it being requisite only that the causes of action in the amended complaint should all belong to the same class; there is no other reason for restricting the causes that may be added.”

This is clearly the highest authority for holding that while a party may not by amendment join causes of action belonging to-the different classes specified in the Code, yet he may amend by changing his cause of action from one class to another, namely, from one of tort to one on contract. In a more recent case in the supreme court, Eighmie v. Taylor, 39 Hun, 366, where the facts, were more nearly like the case under consideration, Justice Hardin, in writing the opinion of the court, reviews the authorities and comes to the conclusion that it is within the discretion of the ■court at special term, and affirms an order allowing the plaintiff to make such an amendment. The action was to recover for a breach of a verbal warranty made upon the sale of real property; the court of appeals held that a recovery could not be had upon a verbal warranty, and reversed a judgment obtained in the court below. The plaintiff then moved to amend his complaint by setting up false and fraudulent representations in the sale of the property. The general term held that such an amendment was .allowable under § 723 of the Code of Civil Procedure. If the practice is correctly stated in that case, it is decisive of the question here.

The case of Andrews v. Bond, 16 Barb., 633, cited by the defendant in his brief, is not in point. The plaintiff’s counsel, in his .argument at the general term, asked that the action might be regarded as an action to recover the avails of a note, as money had and received, and invoked the aid of the court to amend his complaint then and there if necessary. The court in answering the suggestions of counsel, said: “ The action is one sounding in tort * * * and it is now too late for the plaintiff to attempt to -change its character; we cannot know what defense the defendant might have interposed had the action been founded upon assumpsit.” The court simply decided that the plaintiff’s complaint could not be amended on the argument, nunc pro tune, and not that if a proper application had been made to the special term, the complaint could not have been amended. But even if the case was authority for the defendant’s contention, the doctrine has been overruled by the court of appeals in Brown v. Leigh, supra.

Neither does the case of Ross v. Mather, 51 N. Y., 108, nor Matthews v. Cady, 61 id., 651, go to the extent claimed by the counsel for the defendant. In the former case the plaintiff by his complaint charged fraud in the sale of a horse; on the trial he proved a warranty without making any proof of fraud, and the court held that he could not recover for a breach of warranty on a complaint charging the defendant with fraud. In the latter case a similar question arose and the court held that the action was one ex delicto, and could not be changed to one ex contractu. No question arose in these cases as to the right of the plaintiff to amend his complaint, nor was the rule laid down in Brown v. Leigh in any way disturbed.

I do not think the other cases cited by the defendant touch the question now being considered. They hold that when the claim is in tort the recovery must be in tort, and when the claim is on contract the recovery must be on contract; and do not involve or decide the question of the right of a party to have his complaint amended from an allegation of fraud to one on contract. When the question was first presented to me I was impressed with the suggestion that the plaintiff could not amend, and that the cases went to the extent claimed by the defendant’s counsel, but on an examination I am satisfied that my first impression was wrong, ■and that the rule is as stated above, and that the special term may in futherance of justice' permit the plaintiff to amend his complaint in the particulars asked for. The order, however, must be upon terms. The fault is with the plaintiff; he is asking the court to exercise its discretion in his favor. A trial has been had, expense has been incurred for which the defendant should be indemnified. An order may therefore be entered allowing the plaintiff to serve the ámended complaint, on paying to the defendant’s-attorneys thirty dollars trial fee and ten dollars for opposing this motion, payment to be made within twenty days; otherwise the motion is denied, with ten dollars costs.


author: O’Brien, J.

text:
    Morris Rubens et al., Pl’ffs, v. The Ludgate Hill Steamship Co., Def't.

      (Supreme Court, General Term, First Department,

      Filed October 20, 1892.)

    1. Carriers—Negligence—Contract.
    In the absence of a written contract the law implies an obligation on the part of a carrier to deliver the merchandise in good order to the person, from whom it accepts freight.

      2. Same.
    Although a bill of lading was not delivered at the time of shipment, yet where it is forwarded to the consignee, by whom it is endorsed to the-shipper, who thereon enters the goods in the custom house, this will constitute an assent to and ratification of the terms of such bill of lading-which will bind the shipper.
    3. Same—Exemption prom liability for negligence.
    A bill of lading which provides that the carrier shall be exempt from, liability for injuries “ from corruption * * * stowage or contact with, or smell or evaporation from, other goods, however these or any of them may be brought about; whether any of the perils, causes * * * or the loss or injury arising therefrom, or from any other specified cause, be occasioned by or from any act or omission, negligence, default or error in judgment of the pilot, master, mariners, engineers, stevedores, or oiher persons in the service of the ship owners,” exempts the carrier from liability for damage arising from the improper stowage of oil in the same-compartment with the shipper’s goods.
    4. Same.
    To entitle the carrier to exemption- under such a bill of lading it is not. necessary to prove that the consideration for these exemptions was the low rate of freight which the carrier agreed to receive as a condition to its-release from liability.
    (Patterson, J., dissents.)
    Motion for new trial on exceptions ordered heard in the first instance at general term, after verdict for plaintiffs.

      Horwitz & Hershfield (Wales F. Severance, of counsel), for pl’ffs; Convers & Kerlin (J. Parker Kerlin, of counsel), for def’t.
   O’Brien, J.

This action was brought to recover damages to-certain cases of hatter’s fur, owned by the plaintiffs and imported by them in the defendant’s steamship, the Ludgate Hill. The merchandise was shipped at Antwerp upon the steamer Planet, with liberty to transship at London upon any other ship belonging to- or chartered by the agents of the defendant, and they were brought from London to this port in the Ludgate Hill, and entered at the custom house under the bills of lading that were originally issued for them upon shipment on board the Planet at Antwerp-On arrival at the port of Hew York, six of the ninety-three cases were found damaged by oil when received in the plaintiffs’ warehouse. The plaintiffs offered evidence of ownership, and of delivery of the goods in a damaged condition, and rested, without proving the contract under which they were transported. A motion was made at the close of the plaintiffs’ case to dismiss, upon, the ground that the plaintiffs did not prove the contract on which the merchandise was carried, or that the damage occurred to the goods on board the vessel, or that the damage was a breach of the-contract under which the merchandise was carried. This motion was denied, and exception taken. The defendant then offered in evidence two bills of lading, which it claimed contained the contract under which the merchandise was transported. Evidence-was also offered tending to show that the damage was caused by oil which escaped from barrels stowed in the same compartment with the plaintiffs’goods. It appeared that plaintiffs’ cargo, together with the oil, was stowed in a compartment known as “Ho. 4 Orlop Deck,” which is the middle deck of the steamer, the compartment being about seventy feet long by forty-five feet wide. The vessel sailed from London on the 4th of July, 1887. Defendant's witnesses testified that strong winds were experienced immediately thereafter, which culminated in a gale on the 8th of July, during which the sea was very rough and high; that the rolling of the vessel in the storm affected the stowage so that the end dunnage fell down, and the barrels were found to have worked loose in the tiers, and to have sprung a leak. The cargo was redunnaged at sea, bnt the damage to plaintiffs’ merchandise was not ascertained until arrival at Hew York. -

At the close of the case, a motion was made that a verdict be directed for the defendant upon the ground that the case rested upon an express contract; that the damage referred to in the complaint and in the proof was damage exempted by the terms of the contract, for which the steamship was not to be liable. This was denied, and the defendant excepted. The court thereupon submitted to the jury the question whether the damage had been occasioned by the improper stowage of the oil, which submission • was excepted to by the defendant. The defendant also asked the court to instruct the jury that there was no evidence of improper stowage of oil This request also was declined, and the defendant excepted.

In respect to the question as to whether the damage had been occasioned by the improper stowage of the oil, though the plaintiffs, prior to the court having announced the question which it intended to submit, claimed the right to go to the jury upon several other questions, they took no exception to the question as finally submitted by the court. As to this question of fact, the manner of stowage of the oil was described by the witnesses for the defendant, and their evidence tended “to show that it was stowed in the usual way, in a proper manner, and that the cause of the end dunnage falling down, and the barrels working loose in the tiers, resulting in a leak, was the rough and high, sea experienced upon the voyage. On the part of the plaintiffs, a witness was produced who, after showing that he was qualified from his ■experience to express an opinion as to the proper manner of stowing merchandise upon vessels crossing the ocean, pointed out what he regarded as the faulty manner in which the goods here in question were stowed, and stated that, in his opinion, from the fact of ■the barrels having worked loose, the stowage was improper. Although there were more witnesses upon this question who-testified in defendant’s favor, and though, in one respect, due to the fact that they had personally observed the manner in which the plaintiffs’ goods were stowed, their testimony was entitled to greater weight, this was to an extent counterbalanced by the evident interest which they necessarily must have had in meeting the charge that their own manner of stowing the goods was negligent. Under these circumstances, the jury having found in favor of the plaintiffs upon conflicting evidence, we would not be disposed to disturb the verdict if the question was properly submitted, or if, under the terms of the bills of lading, there was upon the evidence iiny question to be submitted to the jury.

This brings us to the crucial question arising upon this appeal, 'which is presented by the motion to dismiss the complaint or direct a verdict for the defendant at the close of all the evidence. Defendant’s contention- is that by the terms of the bills of lading it is exempt from liability, and that this fact having been made to appear to the court, it should either have dismissed the complaint or directed a verdict for the defendant, and that the exception to such refusal entitles the defendant thereon to a judgment in its favor. The plaintiffs, on the other hand, to meet the force of this claim, assert that there is absolutely no evidence p disclosed by the record which shows that the terms of this alleged bill of lading, under which the defendant claims a technical exemption, were ever brought home to the plaintiffs, or anyone representing them, either directly or by implication of law ; and secondly, that, though evidence was present to show that the bills of lading were binding upon the plaintiffs, under a strict construction to be given to the terms thereof, the defendant is not 'exempted from liability for the particular negligence in question by plain and unequivocal language which could not be misunderstood by the shipper. If plaintiffs’ contention were supported, that there is no. evidence in the record showing that the bills of lading were binding upon them, we should have little difficulty in reaching a conclusion in their favor upon the other questions presented; because, as stated in Park v. Preston, 108 N. Y., 434, headnote; 13 St. Rep., 809: “ In the absence of evidence to the contrary, it is to be assumed that goods accepted by a carrier for transportation are taken" under the responsibility cast upon the carrier by the common law, save as modified by the statute. If the goods are lost (or damaged) under circumstances which render the carrier liable by the general rule of law, he must respond, unless he can show that there was a special acceptance, equivalent to a contract, which exempts him from the ordinary liability of common carriers in the particular case.”

So much reliance is placed by the plaintiffs upon this case, Park v. Preston, as an authority in their favor that a brief statement of the facts is necessary in order to show the distinguishing features between it and the present one. There the plaintiff, having been advised by the carriers that they would transport a quantity of iron at a price agreed upon, inclosed to them a delivery order for the iron, with directions as to shipment. The carriers, by means of the delivery order, procured the iron, and shipped it upon a canal boat, and, on completion of the shipment, signed a bill of lading, which was mailed to plaintiff; but before it reached, them, and on the same day the bill of lading was signed, the canal boat, with the iron on board, had sunk in the Hudson river. The bill of lading contained a provision exempting the carrier from liability for loss occasioned by dangers or accidents of navigation while on lakes, rivers or canals. In an action to recover damages for the loss, there was no evidence that the parties agreed before the bill of lading was signed that the goods were to be carried under a restricted liability, or that the compensation was regulated on that assumption, or that there was any usage or custom that bills of lading on shipments of this character should contain such exemptions. It was further held that, the carriers having acted upon the letter and acquired possession of the goods by means of the delivery order, there was apparently a complete contract ; and while it might be assumed that, in accordance with the usual course of business, a bill of lading would be signed when the iron was shipped, this did not justify an inference that it was open to the defendants to insert therein clauses restrictive of the usual liabilities of carriers. From these facts, and from the decision, it was clear that the signing and sending of the bill of lading, after another complete contract with respect to the goods had been made, were not binding on the shippers, because there was no evidence that it had been agreed or assented to. A carrier so receiving goods is held to his common-law obligation to deliver them safely. As stated by Earl, J., in Cragin v. N. Y. C. R. R. Co., 51 N. Y., 63: “ The rule of the common law makes a common carrier responsible for the safe carriage and delivery of property intrusted to his care, unless he be prevented by the act of Hod or of the public enemy.” Here the plaintiffs seek to hold defendant to its common-law liability, and upon this theory it was not necessary, in the first instance, to prove that they shipped the goods under a written contract.

In the absence of the latter, the law implies an obligation on the part of the carrier to deliver the merchandise in good order to the person from whom he accepts freight. The motion to dismiss at the close of plaintiffs’ case was therefore properly denied. And, for the purpose of relieving itself from the obligation thus-incurred at common law, the burden was placed upon the defendant of showing an exemption under a special contract. As already said, the plaintiffs insist that no evidence to support the burden thus cast upon the defendant appears in the record. We cannot, however, agree with this statement, because we think it has. been clearly established in this case that the bills of lading constituted, the agreement between the parties. We concur with plaintiff in the proposition that a bill of lading which has never been assented to in fact or in law by the shipper or owner is not binding. But the converse of this proposition is equally true, that a bill of lading which has been assented to in fact or in law by the shipper or owner is binding.

The record discloses, in regard to these bills of lading, the Hollowing: One of the plaintiffs, upon cross-examination, testified ■that “ these goods were carried on a bill of lading. They were shipped at Antwerp, and brought over by the Ludgate Hill, on *he bill of lading which was issued in Antwerp. Q. (Showing papers» marked for identification defendant’s exhibits 1 and Are these the bills of lading? A. Yes.” From the bills of lading themselves, it would appear that one Richard Berns acted as the agent for both the shipper and the steamship company, and was therein provided that the goods should be delivered in New York to the order of Seligman & Co., who it was testified were "bankers, and of whom one of the plaintiffs testified he received the bills of lading. The bankers indorsed the bills of lading to plaintiffs, who thereupon took duplicates of them to the customhouse, and entered the goods thereon. The record also shows that •during a discussion between the court and counsel respecting one •of the papers used upon the trial, the defendant’s counsel, in answer to a question by the court, stated: “ They were brought here on this ship under this bill of lading; ” to which plaintiffs’ •counsel said: “ There is no doubt about that.”

In the face of such testimony, and what was made to appear •upon the trial, we are unable to agree with the counsel for plaintiffs that absolutely no evidence is disclosed by the record -made up by the defendant in this case which shows that the terms of this alleged bill of lading under which the defendant •claims a technical exemption were ever brought home to the plaintiffs, or any one' representing them, either directly or by implication of law. It is clear upon the authorities that, in order to •make a bill of lading binding upon the shipper, it is not essential to show that he signed the same, though it is necessary, if its •terms restrict the carriers’ common law liability, that his assent thereto be shown. Such assent, however, need not be express; it is sufficiently indicated by an acceptance of the bill of lading containing the restrictions. As said in Kirkland v. Dinsmore, 62 N. Y., 176: “It has been repeatedly adjudged in this state that the .acceptance by the shipper on the delivery of goods for transportation to a carrier of a receipt or bill of lading signed by the carrier, expressing the terms and conditions upon which they are received and are to be carried, constitutes, in the absence of fraud •or imposition, a contract controlling the rights of the parties.” We think it equally well established that, though in this case "there was no evidence that the bill of lading was delivered to •plaintiffs or to their duly constituted agent at the time of the shipment of the goods at Antwerp, still the forwarding of the bills of lading to the bankers, the "endorsement thereof over to plaintiffs, .■and their entry thereon of the goods at the custom-house, were an •unequivocal ratification of the terms and conditions of a contract entered into on their behalf, the terms of which, in the absence of any evidence to show that they dissented or demurred thereto, they must be held to have assented to and accepted.

This leaves still to be disposed of the plaintiffs’ contention that by the terms of the bills of lading the defendant is not exempted from liability for the' particular negligence in question by plain and unequivocal language which could not be misunderstood by the shipper. The rule to be applied in construing agreements limiting the common law liability of carriers is well summarized in Kenney v. N. Y. C. & H. R. R. R. Co., 125 N. Y., 425; 35 St. Rep., 447, as follows: “ The rule is firmly established in this state that a common carrier may contract for immunity from its negligence or that of its agents, but that to accomplish .that object the contract must be so expressed, and it must not be left to a presumption from the language. Considerations based upon public policy and the nature of the carrier’s undertaking influence the application of the rule, and forbid its operation, except where the carrier’s immunity from the consequences of negligence is read in the agreement ipsissimis verbis. The doctrine of such contracts was stated by this court in the case of Perkins v. N. Y. C. R. R., 24 N. Y., 196, 206. It was reiterated in the opinion of Judge Allen in Blair v. Erie R. Co., 66 N.Y., 313, 318 ; and in Mynardv. S., B. & N. Y. R. R. Co., 71 N.Y., 180, Church, Ch.J., reviewing the question at some length, considered the prior decisions of this court, and referred to certain decisions in the United States supreme court which held a different doctrine as to such agreements. In recognizing the right of the carrier to contract for its immunity from the results of negligence, he stated the general rule to be that such contracts must be expressed in unequivocal terms.”

It remains to apply the rule thus established to the facts here appearing, and in thus applying it we must bear in mind what caused the injury to plaintiffs’ goods as determined by the evidence and by the submission to the jury. The plaintiffs did not object or except, and must therefore be held to have assented, to the correctness of the view of the trial judge as to the proper question to be submitted to the jury. The defendant excepted to the submission of this question, and insisted that the shipowner was only responsible to the plaintiffs, if at all, for the improper stowage of the furs, and not for improper stowage of the oil, and that the improper stowage of the oil would come within that clause which says it shall not be liable for stowage of the oil with furs. This requires that we should refer to so much of the bills of .lading as presents the question, which is to be found incorporated in the defendant’s second defense set forth in the answer, as follows: That the said merchandise was shipped to be delivered subject to the following express exceptions and conditions, among others, which were embodied in the bills of lading delivered to the plaintiffs, and which were expressly agreed to by them, viz.: “Injury from corruption, frost, decay, stowage, or contact with, or smell or evaporation from, other goods, however these or any of them may be brought about; whether any of the perils, causes, or things above mentioned, or the loss or injury arising therefrom, or from any other specified cause, be occasioned by or from any act or omission, negligence, default, or error in judgment of the-pilot, master, mariners, engineers, stevedores, or other persons in the service of the ship’s owners, whether on board the said ship or any other ship belonging to or chartered by them, or otherwise howsoever, for whose acts they would otherwise be liable.”

The question submitted to the jury having restricted the causes producing the injury to improper stowage of oil in the same compartment with the furs, the defendant relies for immunity upon two express exemptions above quoted from the bill of lading. The first, that the defendant should not be liable for “injury from stowage; ” secondly, “ or from any other specified cause, occasioned by or from any act or omission, negligence,” etc., of persons in the-service of the defendant. There is much force in plaintiffs’ contention that a strict construction of the language of the bill of lading against the defendant might lead to the conclusion that it refers to the injury, wasting, leakage, breakage, or stowage of the merchandise shipped and included in the bill of lading, and does not refer to the leakage, breakage, or stowage of other goods than those shipped, and that it cannot, therefore, be said to be perfectly plain and beyond question, within the decisions, that the use of this word “stowage,” examined with reference to the other language used in connection therewith, would inevitably convey to the shipper that the defendant intended to exempt itself from liability for improper or negligent stowage of other goods. Though we should resolve this in plaintiffs’ favor, there is the other clause relating to an exemption from the negligent acts of the defendant’s employees, which is fatal to plaintiffs’ right to recover.

We are referred to many authorities, one of the leading ones being that of Nicholas v. N. Y. C. & H. R. R. R. Co., 89 N. Y., 370, which supports the proposition that a shipping contract will not be construed as exempting the carrier from liability for his own negligence, unless the intent is so plainly and distinctly expressed that it cannot be misunderstood by the shipper ; it cannot be inferred from the general words in the" contract. That was a case of a quantity of trees shipped on defendant’s road, the shipping contract containing an exemption “for damage occasioned by delays from any. cause, or from change of weather.” The trees were lost by the negligent delay of defendant in transportation. In an action to recover damages, it was held that such a loss was not covered by the exemption, and that defendant was liable. The ground upon which this decision was based is thus stated in the course of the opinion: “ There is an almost unbroken line of judicial expression to the effect that general words will not operate to exempt a carrier from liability for his own negligence.” In another part of the opinion the learned judge says: “The practiceof common carriers making special exceptances exempting them from their ordinary responsibility, though contrary to the policy of the common law, liable to “abuse, and productive of inconvenience, has obtained too long to be now questioned. In this state it has been extended so as to authorize a special exceptance exempting them from liability from their own negligence. But a contract exempting a bailee for hire from the obligation of care-on his part in respect to the goods in his custody is, to say the least, unreasonable ; and, while the law does not go to the extent of making it void on that ground, yet the qualification that to-have that effect it must be plainly and distinctly expressed, so that it cannot be misunderstood by the shipper, is * * * obviously just,” etc.

Construing the contract here so as to give no effect or meaning to general words, resolving all doubtful ones most favorably to-the shipper, and having in mind the rule that the exemptive clause-must be expressed so as to cover the precise exemption claimed,, and in language so plain as not to be open to the view that it was liable to be misunderstood by the shipper, we still think that it would be doing violence to language not to hold that, by the terms of this contract, the language clearly expressed that the shipowner was not to be responsible for injuries arising from the negligence of its employees, and that the improper stowage, which was ascribed as the cause of the injury, was submitted to the jury upon the theory that the evidence presented a question as to whether or not the improper stowage of the oil by the servants of the defendant was the proximate cause; and, as we have-said, such negligence seems to have been expressly exempted by the terms and the very language used in the bill of lading. In-our view, therefore, the motion made by the defendant at the end of the case, for a direction in its favor, was proper and should have been granted, and the exception taken thereto is good.

There still remains a subsidiary question as to the effect of the-failure to prove the allegation of the answer, that the consideration for these exemptions and exceptions accorded to the defendant was the low rate of freight the defendant agreed to accept as a condition to its release from any liability for loss resulting from causes exempted. We do not think that such failure on defendant's part was material to the disposition of the case, for the reason that it is entirely competent for the parties to enter into a contract; and where it appears that, in consideration of a stipulated sum, the carrier agrees to perform certain services upon condition of certain exemptions, sufficient consideration is to be found in the carrier’s obligation thus assumed to support the exemptions provided for in the contract. Were there a statute requiring a carrier to transport goods at certain specified rates, another question might be presented; but, in the absence of any such statute or law binding upon the carrier to transport at certain fixed rates, we can see no good reason why the shipper and carrier may not enter into a contract upon such terms and conditions as may be agreed upon between them. Upon the exceptions we are of opinion, therefore, that the motion to set aside the verdict and grant a new trial, made by the defendant, should be granted, with costs to abide the event

Van Brunt, P. J., concurs in result; Patterson, J., dissents.


author: Per Curiam.

text:
    Ophelia J. Cuthbert, Resp’t, v. Margaret S. Ives et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed October 20, 1892.)
    Partition—Jury—Form op order.
    An order in an action for partition that the issues of fact arising oil the pleadings he tried by a jury at circuit on a day certain is proper; hut such order should direct the verdict to be certified to the special term, and not to the judge granting the order.
    Appeal from order directing that the case be placed upon the day calendar at circuit for trial by jury, and that the findings he certified to the judge making the order.

      Charles F. MacLean, for app’lts ; Edgar M. Johnson, for resp’t.
   Per Curiam.

After the trial of this cause, which is an action in partition, had begun, and testimony had been taken, at special term, the plaintiff moved, under § 1544 of the'Code, for an order directing the issues of fact arising upon the pleadings to he tried by a jury at a circuit court. The court, although probably the plaintiff had waived her right to a jury trial by not demanding it before commencing the trial before the court without a jury, made the order from which this appeal is taken. Section 1544, relating to the trial of issues in partition cases, provides that “ an issue of fact joined in the action is triable by a jury. Unless the court directs the issues to be stated as prescribed in § 970 of this act, the issues may be tried upon the pleadings.”

As we understand appellants’ insistence, it is, that “if no issues are selected from the pleadings and framed for trial, the issues must be tried upon the pleadings, and the circuit court is the only court for such an action; ” and that “ there is no more authority for the chancery court insisting upon its jurisdiction of such an action, or its right to direct the day when a jury shall try it, or what shall be done with the verdict, than in a suit upon a promissory note or any other action at law.” Appellants are in error, in respect to the nature and character of. a partition action, in assuming, because by certain sections of the Code certain issues are triable by a jury, that it thereby becomes divested of its equitable character, and is changed into one at common law. As said by Judge Miller in Hewlett v. Wood, 62 N. Y., 75: “The action under the Code for a partition of lands must be regarded as an equitable action, and I think does not belong to the class of actions which are recognized solely as actions at law.” This same view has lately been enforced by the case of Mellen v. Mellen, 16 N. Y. Supp., 191, in which the learned judge writing the opinion says: “While partition is an equitable action, the statute has given the absolute right for a trial of the issues thereof by jury, and there is no inherent power in a court of equity to disregard the verdict of a jury, where the trial in that method is a matter of legal right.” The language of the Code is also clearly in harmony with this view. We think, by reason of the duties and functions of the separate courts (supreme and circuit), that the proper practice would be in these cases to have the issues framed at special term, and not place that labor upon a judge holding a circuit court. It is not, however, under the language of the Code, jurisdictional, that the above practice should be pursued; and therefore the court had the power to make the order in the form which he did,, as far as relates to the trial of the issues. It also had a right to-include in the order a direction as to its trial in the circuit court With respect to so much of the order, however, as directed that the verdict should be certified to himself, we think the order was erroneous. It should have required that the verdict be certified to the supreme court at special term, in order that” the proper decree might be entered upon the issues as determined by the verdict. We are of opinion-, therefore, that the order should be modified in this respect, and as so modified should be affirmed, without costs.

Van Brunt, P. J., O’Brien and Patterson, JJ., concur.


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

text:
    The Gas Works Construction Co. of Philadelphia, Limited, Resp’t, v. The Standard Gas Light Co. of New York et al., Def’ts.

      (Supreme Court, General Term,, First Department,

      Filed October 20, 1892.)

    1. Abatement and revivor—Laches.
    A neglect to move to revive an action agamst the representatives of a deceased defendant for two years after his death, during which time three material witnesses have died, is not an answer to such motion, where it 'is not shown that the testimony of such witnesses could alone have been availed of to prove the facts, and the delay is otherwise excused.
    2. Severance—Code Civ. Pro., § 758.
    The provision of § 758 of the Code as to severance of actions is not mandatory, and where it appears that all the parties to the transactions in question should be before the court in one action, a severance is properly denied.
    Appeal from order continuing action against Emma V. Monheimer, as executrix of the deceased defendant, Joseph A. Monheimer.
    Action to set aside certain assignments of an interest in territorial rights in certain patents for gas making machinery as fraudulent and void, and for an accounting.

      Gratz Nathan, for app’lt; Delancey Nicoll, for resp’t.
   Patterson, J.

It was not claimed by the appellant in argument, nor in the brief submitted, that the cause of action did not survive the death of Joseph A. Monheimer ; nor that it is at the present time barred by the statute of limitations. It will be necessary for us, therefore, to consider only the subject of the alleged loches of the plaintiff in moving to revive the suit against the executrix of Monheimer, and the refusal of the court at special term to direct a severance of the action as part of the order granting the motion to revive, which is the order now before us on this appeal. The notice of motion is without date, but it is based on an affidavit, the jurat of which is of the date December 1,1891. The action was commenced in or about the month of May, 1887, against the Standard Gas Light Company of the city of New York, Benjamin F. Sherman, Wallace 0. Andrews and Joseph. A* Monheimer. It was at issue as to all of the defendants, and was on the special term calendar in June, 1888, and in that month the plaintiff made á special motion to have the cause set down for trial on a day certain in that term. That motion was opposed and denied, and it seems that the case was not moved again for trial at the special term by either party. Monheimer, a defendant, died in March, 1889 ; Sherman, another defendant, in October, 1890. Two other persons, whose testimony the executrix claims was material and necessary in the defense of the action, have also died since October, 1888, viz.': Francis B. Spinola and Joseph P. Flannery. Facts and circumstances are set forth in the papers presented in opposition to the motion, which show that the testimony of the four persons named would have been material; but it is not clearly shown that their testimony alone could be availed of to establish the facts as to which they were able to depose. There is an undoubted power in the court to refuse to revive a suit, where by negligence of the moving party his adversary has been deprived of the benefit of evidence absolutely material and necessary to the cause, and without which he could not safely proceed to trial, Lyon v. Park, 111 N. Y., 350; 19 St. Rep., 626; Coit v. Campbell, 82 N. Y., 517; Evans v. Cleveland, 72 id., 489, but it should be made to appear beyond controversy that such has been the consequence of the imputed neglect. That has not been done on the present motion, and furthermore we think the delay has been satisfactorily explained. That it was not due to the disagreement between the plaintiff and its attorneys is shown by the fact that such disagreement was settled in February, 1889, but it was occasioned, in all probability, by the efforts and negotiations made for a settlement of the matters in controversy, which appear to have been continued long after the death of Monheimer, and until within a short time of that of Sherman. There is conflict and uncertainty as to some of the statements of the parties relating to the various steps and stages of those negotiations, but we think the plaintiff should not be deprived of the right to a trial on the merits of its claim ; especially as it is not fully and clearly shown that the executrix of Monheimer is unable to prove the defense set up to that claim in consequence of unexcused delay of the plaintiff. There is no adequate reason given for a severance of the action as to the Monheimer interest. The provision of the Code of Civil Procedure, § 758, cited is not mandatory, and there was nothing presented to require the court below, in furtherance of justice, or in the proper disposition of the cause, to exercise its discretion by ordering such a severance. On the contrary, as the complaint is framed and the issues made, from all that now appears, all parties to the transfers and assignments of the patents claimed by the plaintiff should be before the court in the one action.

Order appealed from affirmed, with costs and disbursements.

O’Brien, J., concurs.

Van Brunt, P. J.

I do not think that it is necessary for the party moved against to show “ beyond controversy ” that by the loches of the moving party he has lost evidence, or that he must freely and clearly show that he is deprived of a defense by the loss of such evidence, in order to entitle a party to a denial of a motion of revivor. " I think if it appears that a party has lost evidence which appears to be necessary and material, after a long delay, an action should not be revived. In the case at bar, however, even 'this rule had not been complied with, and I concur in result.


author: Van Brunt, P. J.

text:
    The National Park Bank, Resp’t, v. Warren N. Goddard et al., Def’ts. Joseph Lillianthal, App’lt, Henry Winthrop Gray, Rec’r, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October 20, 1892.)

    1. Receiver—Prior attaching creditor—Modification of order.
    A prior attaching creditor who is not a party to an action brought by a junior attaching creditor against other creditors who brought replevin actions to settle claims to the property, has a right to appeal from an order denying his motion for a modification of an order of receivership by striking out so much thereof as directs the sheriff to deliver to the receiver property held by him under his warrant of attachment.
    3. Same.
    It is no defense to an application for such modification that there was no property in the receiver’s hands except that attached at the suit of the plaintiff, unless it is made to appear that the property attached in plaintiff’s suit was different from that attached in the applicant’s suit.
    3. Same—Notice of motion should be given to defendants.
    Notice of such application should be given to the defendants as well as to 'the plaintiff and receiver, as the latter holds the property as much for the defendants as for plaintiff.
    Appeal from order denying motion on the part of the appellant, who is not a party, to vacate or modify an order appointing receiver.

      D. P. Hays, for app’lt; G. Zabriskie, for receiver, resp’t.
   Van Brunt, P. J.

On the 12th of May, 1891, the appellant commenced an action against Levy Bros. & Co., and obtained an attachment, which was levied on the same day on rxroperty of the defendants. The National Park Bank, the plaintiff in this action, obtained on the same day a warrant of attachment, which was levied by the sheriff upon the same property which he had attached in the appellant’s suit. After the levy of the bank’s attachment, the defendants in this action commenced actions in replevin against the sheriff, and issued requisitions to the coroner, etc., in which actions were claimed the same property attached by the sheriff. Such proceedings were had in this action that on the 23d of May, 1891, the respondent, Gray, was appointed receiver of all the property, things in action and effects seized by the coroner, under and by virtue of the several requisitions in replevin issued to him in favor of the defendants named in the title, and all property held by the sheriff under and by virtue of all warrants of attachment against Levy Bros. & Go., and the order expressly provided that the receiver take and hold the property subject to all liens, by attachment or otherwise, which exist in favor of any of the parties in whose favor attachments may have been issued, as well as all liens acquired by virtue of such requisitions in said replevin suits. The appellant is not a party to this action, and had no notice of the application "for the appointment of a receiver. Upon learning of the appointment, he obtained an order requiring the said receiver and the plaintiff in this action to show cause why the order appointing said receiver should not be modified by striking out so much thereof as directed the sheriff to deliver over to said receiver the property held by him under said warrant of attachment. Upon hearing the counsel for the plaintiff and receiver, the court denied the motion, and from the order thereupon entered this appeal is taken.

It is urged upon the part of the respondent that the appellant, not being a party, has no right to appeal from the order. If this position is sound, then, the sheriff being in possession of property upon which A. has a lien, in a contest between B. & C. iti respect. to that property, the court may dispose of its custody without A. having any opportunity whatever to inform the court of his rights, a proposition the mere statement uf which shows its fallacy. It is further urged that the order does not place in his custody any other property than that attached by the sheriff in favor of the plaintiff herein. That may be entirely true, because the sheriff may have attached, under the attachment issued in favor of the plaintiff herein, precisely the same property which he had already attached under the warrant issued in behalf of the appellant, which is probably the fact. The claim, therefore, that there is no property in the receiver's possession which is not attached in the suit of the plaintiff, would be no answer whatever to the application, unless it was made to appear that the property attached at the suit of the plaintiff was different and separate from that attached in the appellant’s suit. But the difficulty with the appellant’s case is that he has not notified the parties in interest on this application. The defendants are as much interested in the disposition of the property in the receiver’s hands as the plaintiff. The receiver holds the property as much for the defendants as for the plaintiff; and, therefore, when the appellant desired to interfere with the receiver's custody of that property, he was bound to notify the parties in interest, viz., the defendants as well as the plaintiff and the receiver. The motion, therefore, should have been denied upon this ground. The order should, therefore, be affirmed, but, under the circumstances, without costs, and with leave to the appellant to renew his motion upon notice to all the parties in interest

O’Brien and Lawrence, JJ., concur.