text:
    OSGOOD N. RUSSELL, Respondent, v. THE CONSOLIDATED FRUIT JAR COMPANY, Appellant.

      Ooniract for commissions on sales — consln'uclion of.

    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.
    The action was brought to recover commissions for selling fruit jar trimmings and other metal goods, as agent for the defendant, under a special contract.
    There were two contracts between the parties. The first was .dated 22d December, 1871, and, by its terms, was for “the ensuing year.” The second bore date 9th January, 1873, and continued to 1st November, 1873. The rate of commissions under the first contract was fixed at two and one-half per cent on the amount of sales and collections, and under the second contract it was one and one-half per cent. The principal question in the case is whether the referee erred in allowing the plaintiff commissions at two and one-half per cent, instead of one and one-half, on certain sales and collections, amounting in the aggregate to the sum of $28,638.15. The question depends upon the construction of a clause in the first contract, which is in the following words: “You are also to receive ” (in addition to forty dollars a week previously provided for) “ two and one-half per cent commission on your sales of jar trimmings, which commission is to be on sales made by us to such parties during the season of 1872.” The referee found that the plaintiff procured the orders or contracts which led to the sales in question, during the year 1872, but they were not reported by him to the defendant until after the expiration of that year. They were reported, however, before the making of the second contract, on 9th January, 1873, but the defendant did not. accept or act upon them, or deliver goods upon them, till after that. date. The contract provided that sales were not to be binding upon tbe company till they were accepted, and no commissions were to be paid upon any sale until the amount' of it was collected. The company received pay on the sales in question.
    The court, at General Term, said: “ The counsel for the appellant contends that the contract, by express .terms, confines the commissions to sales made by the defendant, upon orders procured by the plaintiff during the year 1872. That, it is claimed, is the obvious meaning of the words, £ which commission is to be on sales made by us to such parties during the season 'of 1872.’ In other words, the claim is that the commissions were not earned till the sales had become binding, by the defendant’s acceptance of the plaintiff’s orders. We think, however, the words last above quoted were intended not to limit the commissions, but to extend them so as to include not only the orders of parties obtained by the plaintiff in 1872, which were subsequently accepted, filled and collected, but also additional sales made to £ such parties,’ by the defendant, during that year. The plaintiff, having procured the customer, was to be entitled to commissions not only on his first order, but also on all subsequent sales made to such customer, by the defendant, during the year. Upon that construction, the conclusion of the referee is correct.”

      F. A. Macomber, for the appellant. F. L. Dwrazid, for the respondent.
   Opinion by

Smith, J.;

Mullin, P. J., and Talcott, J., concurred.

Judgment affirmed.


source: Caselaw Access Project

author: Barnard, P. J.:

license: Public Domain

text:
    LUCIUS N. MANLEY, as Receiver, etc., of AUGUST RASSIGA, Respondent, v. MARY R. A. RASSIGA, MICHAEL H. CULLINAN and AUGUST RASSIGA, Appellants.

      Receiver — appointment of, by officer of special jurisdiction — what allegation as to appointment sufficient.

    In an action brought by a receiver appointed in supplementary proceedings, the complaint alleged that, “by an order of determination, then duly made by Hon. John J. Armstrong, county judge for the county of Queens, the plaintiff was appointed receiver,”

      Held, that his appointment was sufficiently alleged, and that a demurrer, on the ground that the complaint did not show that he had legal capacity to sue, was properly overruled.
    Appeal from an order made at the Special Term overruling a demurrer to the complaint. The action was brought by the plaintiff, as receiver of August Rassiga, to set aside certain transfers made by him, on the ground that they were fraudulent as against his creditors. The complaint alleged, in regard to the plaintiff’s appointment: That on the 31st day of May, 1877, at Jamaica, Queens county, New York, upon an application made by John Kane, a judgment creditor of said August Rassiga, in proceedings supplementary to execution and by an order of determination, then duly made by Hon. John J. Armstrong, county judge for tbe county of Queens, the plaintiff was appointed receiver of tbe property of said August Rassiga; and upon tbe filing and approval of bis bond, as hereinafter mentioned, became and still is such receiver and authorized to bring this action.
    Tbe defendant demurred, on tbe ground that tbe complaint did not show that tbe plaintiff bad legal capacity to sue, and that it did not state facts sufficient to constitute a cause of action.

      George F. Langbeim, for tbe appellants.
    There is no sufficient allegation in tbe amended complaint showing tbe receiver’s authority to sue or bring tbe action, or that be was regularly or duly appointed. Tbe rule is stringent as to creditors’ actions by receivers. (Goope v. Bowles, 18 Abb. Pr. Rep., 443 ; S. C., 42 Barb., 87.) Tbe receiver’s appointment and bis authority to sue must be duly alleged. (Gillet v. Fairchild, 4 Denio, 80; White v. Joy, 7 Barb., 204; Bamgs v. McIntosh, 23' id., 204; Bolles v. Buff, 43 N. Y., 469; Story v. Formam, 25 id., 214 ; ATbamy Ins. Go. v. Vcm Yranhen, 42 How., 281; Stewart v. Beebe, 28 Barb., 34; Dayton v. Gonnah, 18 How., 326; Gheney v. Fish, 22 id., 236 ; Rockwell v. Merwin, 45 N. Y., 178.) There is no allegation in tbe amended complaint that tbe plaintiff, as receiver, has filed and recorded his alleged order of appointment, nor is there any allegation of facts, or otherwise, showing that the plaintiff has done and performed any of tbe acts and requisites required by section 298 of tbe Code of Procedure, in order to vest tbe title of tbe real estate or property in him so as to permit him to bring this action. Tbe filing and recording of tbe order is a condition precedent to tbe vesting of title in the receiver, and it therefore follows that an allegation of tbe fact of such filing and recording in tbe complaint is essentially necessary to show title in tbe receiver. (Gillet v. Fairchild, 4 Denio, 80; Hedges v. Bum-gay, 16 Abb. Pr. [N. S.], 313 ; Jnliand v. Rathbóne, 39 N. Y., 369 ; Rogers v. Gornimg, 44 Barb., 229; Becker v. Torramce, 31 N. Y., 631; Glarh v.' Brockway, 42 id. [3 Keyes], 15; Riddle’s Supplementary Proceedings, 142, and cases cited; Hoffman’s Provisional Remedies, 526.) The complaint does not show that a transcript of the judgment was filed and docketed in Queens county. Tbe lien of a judgment does not attach until docketing; and as the lien is entirely regulated by statute, equity cannot extend it. (Buoham, v. Summer, 2 Barb. Ch., 165; Fort v. Billaye, 65 id., 521, Gen. T., 1873).

      Wm. G. Reddy, for tbe respondent.
   Barnard, P. J.:

Tbe allegation of tbe appointment of tbe plaintiff as receiver is sufficient. Such appointment is averred to have been made on the 31st May, 1877, in proceedings supplementary to execution, by Hon. J. J. Armstrong, county judge of Queens county, “ by an order of determination then duly made.” By section 161 of tbe old Code, and which has been preserved untouched in the new Oode (section 532), it is provided that in pleading a determination of a court or officer of special jurisdiction, it shall not be necessary to state tbe facts conferring jurisdiction, but tbe determination may be stated to have been duly made. This averment in this case, carries with it tbe filing of tbe order. . "Without all tbe steps are taken to make a valid determination, it is not duly made. Tbe rights of tbe plaintiff, as receiver, are'finally settled by the Court of Appeals, in Bostwick, v. Menck (40 N. Y., 383). He became vested with the legal title to all the personal property of tbe debtor. Such appointment conferred upon him tbe further right to prosecute such actions, to set aside all transfers of property made by tbe debtor, to defraud bis creditors, as tbe creditors themselves could have maintained.” Tbe complaint avers bis appointment to have been duly made, and this action is brought to set aside a transfer made in fraud of creditors. The judgment creditor could have maintained this action before the appointment of the receiver, after tbe issuing and return of an execution unsatisfied, as against tbe property of tbe debtor.

The order overruling tbe demurrer, should be affirmed with costs, with leave to defendant to answer in twenty days, on payment of costs.

Gilbert, J., concurred; Dtkman, J., not sitting.

Order overruling demurrer to amended complaint affirmed, with costs and disbursements, with leave to defendant to answer in twenty days, on payment of costs.


text:
    CHARLES ROBINSON, Appellant, v. JOHN H. COMER, Respondent.

      Bill of pa/rticulm's — when ordered in action for conversion.

    The complaint in this action alleged that in or about the years 1876 and 1877, this plaintiff was the lawful owner of, and entitled to, the quiet and peaceable possession of certain goods, chattels and personal property, of the value of $5,000, and that the same were wrongfully taken and carried away by the defendant herein and converted to his own use.

      Held, that the action was a proper one in which to order a bill of particulars.
    Appeal from an order made at the Special Term, directing that a bill of particulars of the goods, chattels and personal property-referred to in the complaint in this action, be furnished to the defendant.
    The action was brought to recover damages for the conversion of personal property belonging to the plaintiff. The complaint alleged, among other things, that heretofore, to wit, in or about the years 1876 and 1877, this plaintiff was the lawful owner of, and entitled to, the quiet and peaceable possession of certain goods, chattels and personal property, of the value of $5,000, then being at the town of Goshen, in said county of Orange.
    That subsequently, and in or about the years 1876 and 1877, the said goods, chattels and personal property so owned by, and belonging to this plaintiff as aforesaid, were, at the said town of Goshen, in said county of Orange, wrongfully and unlawfully taken and carried away by the defendant herein, and wrongfully and unlawfully converted to his own use by him, to this plaintiff’s damage, $5,000.

      Baoon & JDwryea, for the appellant.
    Winfield, Leeds c§ Morse, for the respondent.
   Barnard, P. J.:

The papers in this case disclose a clear ease where it is proper to order a bill of particulars. The complaint alleges a wrongful taking and conversion of property belonging to plaintiff. There is no designation of what the property is, or where the taking is made, except in an averment of the most general character, as follows :

“In or about the years 1876 and 1877, this plaintiff was the lawful owner, and entitled to the quiet possession, of certain goods, chattels and personal property, of the value of five thousand dollars,” that, “ subsequently and in or about the years 1876 and 1877 the said goods, chattels and personal property,” were wrongfully converted by defendant, to his own use. It is manifest that this language fails to indicate any particular claim which a defendant can meet. But two reasons are suggested, why the bill of particulars should not- be granted. The defendant asks in his affidavit, a bill of particulars to enable him to answer other actions subsequently commenced. The plaintiff insists that the defendant can answer the other actions without this bill of particulars. The items of the other actions are stated particularly. If the defendant has given a wrong reason for asking the bill of particulars, that should not pi’ejudice his right. If, as defendant claims, the large indefinite claim in the first action, in fact, includes the same items as are included in each of the three subsequent actions, the defendant should have a bill of particulars, to enable him to answer this action.

The second reason urged why a bill of particulars should not be granted is, that defendant already knew what the claim is; he knows what he has converted to his own use. If this were so, it would be an unanswerable reason, but the defendant denies it. Until the trial, it cannot be known by a court, whether the defendant has converted the property or not.

As the pleadings stand, and before a trial, it cannot be said that a person charged with a trespass is guilty, and that a general claim for conversion of a large amount of property cannot be the subject of a bill of particulars, because of the defendant’s knowledge of what property he converted, and, therefore, of what the specific claim is.

The order should be affirmed, with costs and disbursements.

Dykman, J., concurred; Gilbert, J., not sitting.

Order affirmed, with costs and disbursements.


text:
    JASPER A. HICKS, Appellant, v. JAMES S. CHAFFEE and others, as Commissioners of Highways, etc., Respondents.

      Commissioner's of highways — duties of, as to bridges — negligence.
    The defendants, commissioners of highways, were notified, in June, 1875, that a bridge was defective, no particular defect being pointed out. Within a week, they, in company with an experienced bridge builder examined the bridge carefully, from above and below, taking off the planks and testing the timber, but could discover no defect. Shortly after, they caused another experienced bridge builder to examine it, and replace old planks by new, where necessary. In the following month, the bridge fell and injured the plaintiff. The accident was caused by one of the timbers being rotten at the center, which defect could only be discovered by cutting the timber in two.

      Held, that the defendants were guilty of no negligence, and that the plaintiff was not entitled to recover.
    Appeal from a judgment in favor of the defendants, entered upon the report of a referee.

      A. Wager, for the appellant.

      G. <& H. B. Hufeut, for the respondents.
   Barnard, P. J.:

It is now settled in this State that commissioners of highways are liable to a private action for injuries caused by their neglect to keep the bridges of their town in repair. (Robinson v. Chamberlain, 34 N. Y., 389; Hover v. Barkhoof, 44 N. Y., 113.)

The plaintiff’s horse was injured in passing over a bridge in the town of Amenia, in Dutchess county, and the defendants were the commissioners of highways at the time of the accident. To establish a liability upon the part of the defendants they must have neglected to repair the defective bridge, in question, after notice of its condition, with reasonable and ordinary care and diligence. They must have in their hands funds with which to make the repair, or they must have the power lawfully to raise such funds, if the defect continue sufficiently long. Ignorance of the defect is of itself negligence. The question presented by this appeal is, whether the defendants are proven guilty of negligence. In June, 18J5, the defendants’ were informed of tbe unsafe condition of tbe bridge. No particular defect was pointed out. Within a week after, the commissioners made a personal examination of the bridge. The commissioners employed an experienced bridge builder to examine the bridge with them. They took off the plank from the bridge so as to try the strength of the timber. They examined every thing, from above and below, carefully. They took a crow-bar and tried every exposed spot, and were unable to discover any symptom of decay in the timber. "Very soon after this examination they employed another experienced bridge builder, to repair the bridge. He took off the plank and examined the bridge, replaced such new plank as was needed; within the following month the accident took place. An examination of the ruins, subsequent to the accident, disclosed the fact that one of the timbers was rotten at the center; that the defect could not be seen and could be discovered in no way but by sawing through the defective timber; that this timber had broken and caused the accident. No notice of any particular defect had been given to the commissioners.

I think the referee’s finding that there was no negligence proven upon the part of the defendants’ is fully sustained by the evidence. There is no absolute undertaking or guaranty upon the part of the defendants that the bridge should, at all times, and under all circumstances, be in proper condition. A reasonable degree of watchfulness in ascertaining its condition from time to time, and preventing its dilapidation, is all that is required by law of them. (Barton v. City of Syracuse, 46 N. Y., 57; McCarty v. City of Syracuse 46 id., 194; Hover v. Barkhoof, 44 id., 113.)

A close examination by one of the commissioners and two bridge builders failed to disclose the defect and did disclose an apparently strong timber. To hold that the defendants, under such circumstances, are liable for a defect which no examination, short of a destruction of the bridge itself would show, is to make the defendants insurers of all structures. •

Judgment should be affirmed with costs.

Gilbert and Dtkman, JJ., concurred.

Judgment affirmed with costs.


text:
    TAMSON J. AMBLER, Respondent, v. GEORGE A. COX, Appellant.

      Boundary line — when it can be established by pa/rol.

    Where a boundary line is uncertain, indefinite and disputed, tbe owners of the adjoining lots may agree up on and establish, by parol, a line, which neither can afterwards dispute.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury. A motion for a new trial was made on the minutes and was denied.

      Wm. II. Dickinson, for the appellant.

      Q. McAdam, for the respondent.
   Barnard, P. J.:

The plaintiff and defendant are adjoining owners of land. The plaintiff’s lands lie on the north and the defendant’s on the south side of the division line. Both pieces touch the Hudson river, and the question is as to the true location of the boundary line from the Hudson river west to Piermont road. The case seems to have been tried on both sides on the assumption that the boundary line in question was a disputed, indefinite and uncertain line. The plaintiff’s husband, who appears to have acted for plaintiff, and the defendant each testified that it was a disputed, indefinite and uncertain line, and the defendant gave evidence tending to show that the only way to settle the line was by agreement. He says: “Isaw we would have to agree upon the line, as the line between us was quite indefinite.” Evidence was given tending to show the establishment of a line between the Hudson river and the Piermont road by mutual agreement; that the defendant built a fence in accordance with such agreement — a strong, stone fence. Some months after so building the fence the defendant built another fence to the north of this fence, and the ground covered by this last fence is the subject of the dispute in this action. The defendant denied the agreement to establish the line, saying that the plaintiff refused to agree to it. Evidence on each side was given, tending to show that the true line would go beyond the line of the alleged agreement. Under this state of the proof the court charged the jury to pass upon the question of the agreement to establish the line. If they found the agreement, and that the defendant built his fence upon it, that plaintiff was entitled to recover, if the new fence was north of the agreed line. The defendant excepted to the charge because the court submitted the parol agreement to the jury, and the fact of building the fence on the line so fixed by parol. The defendant requested the court to charge the jury that if the true line was north of the new wall, the defendant was entitled to recover. This was refused. The only questions presented aro as to these exceptions. I suppose the law to be well settled that an uncertain, indefinite and disputed line may be agreed upon and established by parol. (Vosburgh v. Teator, 32 N. Y., 561, and cases cited in the opinion of Judge Potter.) If the parties could agree in this case the agreement became valid, and the parties could not afterward deny it.

There was no request by the defendant that the court submit the question whether there was a disputed, uncertain and indefinite line to the jury. Such a request would have been proper. The defendant seems to have based his exception solely upon the proposition that a parol agreement can settle no line. I suppose the law to be otherwise. The judgment should be affirmed, with costs.

Gilbert,. J., concurred; Dykman, J., not sitting.

Judgment and order denying new trial affirmed, with costs.


text:
    ROSE RYDER, Appellant, v. HUGH M. THOMAS, Respondent.

      Owner of real estate — liability of, for acts of cont/raetor in doing work wpon it..
    The defendant made a contract with one dynes by which the latter agreed to raise a house, belonging to the former, four feet. The contractor dug a trench in the sidewalk next to the house about two feet wide and of about the same depth and threw the earth upon the sidewalk. The excavation was left unguarded and the plaintiff fell into it and was injured. The defendant did not authorize the trench to be dug, nor did he know of its having been made until after the accident. Its digging was not necessary to the performance of the contract. Reid,, that the defendant was not liable.

      Tie owner of real estate is not liable for acts of a contractor employed to do work upon it unless (1), the contractor is his employe, or (2), unless the work, as authorized by the contract, necessarily produced the injury, or (3), unless the injuries were occasioned by the omission of some duty imposed upon him.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.
    The action was brought to recover damages sustained by the plaintiff, from falling into a trench in the sidewalk in front of a building belonging to the defendant.

      Edwcurd Ifieoll, for the appellant.

      A. T. Pa/yne, for the respondent.
   Barnard, P. J.:

The rule that an owner of real estate is- subjected to liability for any injury, resulting from negligence, done in the performance of work for the benefit of the land, is not now recognized, (King v. N. Y. Central Railroad, 66 N. Y., 181.) By the same case it is established, that if the person who was the immediate cause of the injury was a contractor, engaged in performing a contract to do a specific work, the relation of master and servant is not created by the contract between the parties, and that the other party is not liable for the contractor’s negligence. Applying these principles to the evidence in this case, the disposition of it by the referee seems to have been right. The defendant made a contract with one Clynes to raise a building belonging to defendant in Long Island City. It was not necessary to interfere with the sidewalk or street to perform the contract. The building was to be raised four feet from a point about one foot above the level of the sidewalk. The contractor dug a trench in the sidewalk next to the house about two feet in width and about of the same depth, and threw the earth excavated upon the sidewalk. The excavation was left unguarded at night and the plaintiff fell into it and was injured. Defendant did not dig or authorize the digging of the ditch and . did not know of its being done, until the next morning after the injury. The excavation was made in the afternoon or evening of the day when the injury happened. Defendant is not chargeable for the neglect of the contractor in doing work upon his lands, unless he is first, either the employer, or second, unless the work as authorized by the contract necessarily produced the injury, or third, unless the injuries were occasioned by the omission of some duty imposed upon him. (McCafferty v. Spuyten Duyvil and P. M. R. R. Co., 61 N. Y., 178.) Defendant is not the master, as we have seen. The work did not necessarily occasion the injury. It did not require it to be done. The contract did not require it to be done in the way the contractor did it. It was an act purely collateral to- the work called for by the contract. Lastly, the defendant omitted no duty. The act was done without his knowledge or assent and by some one unknown to him. If the defendant had known of the creation of a nuisance in the street he would have been chargeable under the cases for not abating it at once or guarding it. The case lacks this element of liability.

The judgment should be affirmed, with costs.

Gilbert and Dykman, JJ., concurred.

Judgment affirmed, with costs.


text:
    WILLIAM E. CASTLE, Respondent, v. HENRY LEWIS and others, Appellants.

      Corporation —power of, to transfer property while it has hut two trustees.

    Where a corporation, created under the act of 1848, has borrowed and received money, upon an agreement to secure the same by a pledge of its goods, fails to give such pledge, but subsequently, and while it has but two trustees, transfers to the lender property owned by it, in payment thereof, a good title to the property so transferred is thereby acquired by him.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court, without a jury.

      Chas. W. Seymour, for the appellant, Lewis.
    A corporation cau act only in the mode prescribed by the law of its creation. (F. L. cmd T. Go. v. Ga/rrol, 5 Barb., 613.) That law has said that the property and affairs of the corporation shall be managed by trustees, and by not less than three. (Act of February 17,1848; act of 1860, chap. 269, § 1, etc.) If the affairs and property of a corporation can be managed otherwise than the law provides, by less than three trustees, it can be done when there are none — by stockholders, the only members of the corporation left; and yet, no doctrine is better settled than that a stockholder has no power to do an act, authority to perform which is given to a board of directors. (McCullough v. Mass, 5 Den., 567; Comeo v. Port Ilmry Iron Go., 12 Barb., 27; The Mut. Fire Ins. Go. v. Fey ser, 32 N. II., 313; Qashwüer v. Willis, 33 Cal., 11; Angelí & Ames on Corp. [10th ed.], § 771. Phelps v. Wickham, 1 Paige, 590.)

      Henrry Pcvrsons, for the respondent.
   Barnard, P. J.:

The Manhattan Glove Company, a corporation organized under the Laws of this State, for manufacturing purposes. Being in need of money to carry on its business, it procured a loan of $5,000, of a Mr. Armstrong, under a promise to secure its repayment, by a pledge of their goods. This was found difficult, and before it was accomplished, one of the trustees resigned, leaving but two to conduct the business. These two trastees concluded to leave certain of their goods with Beiber & Co., for sale on commission. Before they were all sold, this Armstrong demanded the repayment of the loan. This the corporation was unable to do in cash, but made an assignment of the goods unsold in Beiber & Co.’s hands, and also of the moneys the proceeds of goods before that sold. • The defendant forcibly took and carried away the goods from Beiber & Co., after the transfer. The plaintiff has become entitled to Mr. Armstrong’s rights in the goods and money. The transfer was good as between the corporation and Mr. Armstrong; neither party could aver want of authority. The corporation which received the money and gave a title to property, while having only two trustees, could not set up that fact as against the claim of Mr. Armstrong, to the property conveyed. (Eaton v. Aspinwell, 19 N. Y., 119; Bissell v. Michigan Southern R. R., 22 id., 258; Parish v. Wheeler, 22 id., 494.)

The defendants are strangers to the transaction. They are not judgment creditors. They aver no interest in the property in this, answer. They rely simply upon the absolute failure of title in the plaintiffs, by reason that the transfer was made when the corporation had only two trustees. If a private creditor of the corporation could litigate that question, the defendants are not in such a position. There was sufficient proof of the taking of the goods by defendant, to sustain the finding at Circuit. The goods were taken by the sheriff of the city of New York, upon process issued in the name of defendants. When plaintiff attempted to establish his title by the aid of a sheriffs jury, thé attorney for defendants procured an adjournment, under a promise that they would give a bond of indemnity. The sheriff subsequently sold the goods and paid part of the proceeds to defendants’ attorney. The slightest interference with the property of another, or the least exercise of dominion over it, will amount to a conversion. The acts proven and fairly deducible from the evidence, leave no doubt but that the seizure was by direction of defendants.

The judgment should be affirmed, with costs.

Gilbert, J., concurred.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Judgment affirmed, with costs.


text:
    ELIAS H. McLEAN, Respondent, v. JAMES O. COLE, Appellant.

      Question arising upon trial — cam, only he reviewed upon a ease settled — Worm of judgment in replevin.

    No question, either of fact or of law, arising upon a trial — e. g., an objection that a judgment in replevin is for money only, instead of for a return of the property or for its value, in case of its non-delivery — can be reviewed upon appeal, except upon a case made and settled according to the established practice.
    Motion to dismiss an appeal taken from a judgment in favor of the plaintiff, entered upon the verdict of a jury.

      Eugene B. Trmis, for the appellant.

      Elbert P. Jewries, for the respondent.
   Barnard, P. J.:

This action was tried at the Putnam court by a jury. The complaint was in the usual form for the recovery of the possession of personal property, or for its value, if a return could not be had. The appeal is taken without a case having been settled according to the practice of the court. The appellant has printed and served a copy of the judgment roll simply. By this it appears that the verdict of the jury was a money verdict only, for $756. The ground of the appeal is, that the verdict should have been for a return of the property or for the value in case of its nondelivery. The appellant claims the right to review this alleged error, as it appears on the judgment roll without a case. This cannot be done ; no question, either of fact or law, arising upon the trial can be reviewed except upon a case made and settled according to .established practice. (Conolly v. Conolly, 16 How., 227; Hunt v. Bloomer, 13 N. Y., 341; Johnson v. Whitlock, 13 id., 345; Smith v. Grant, 15 id., 590.)

The appeal must be dismissed with ten dollars costs.

Present — Barnard, P. L, and Gilbert J; Dykman, J., not sitting.

Motion to dismiss appeal granted, with ten dollars costs.


author: Barnard,P. J.:

text:
    DANIEL C. REYNOLDS, Respondent, v. EDMUND GUILBERT, Appellant.
    Gont/ract— consideration of— wliat sufficient to support it.

    Plaintiff and defendant being the owners respectively of two pieces of property each adjoining another lot, and fearing that the latter would be so used as to injure their property, entered into an agreement by which the plaintiff agreed to buy the lot for $2,500, and the defendant agreed to pay him $100 for so doing. Plaintiff having purchased the lot, brought this action to recover the $100.

      Held, that there was a good consideration to support the contract, and that it could be enforced.

      Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury. A motion for a new trial was made on the minutes and was denied.

      Win. F. Purdy, for the appellant.

      L. T. Yale, for the respondent.
   Barnard,P. J.:

The defendant requested the plaintiff to buy a lot adjacent to both parties, and which each feared would be purchased by some one who would use it so as to injure the property of each of the parties. ITe promised the plaintiff that if he would buy the land at $2,500, he would pay him, the plaintiff, $100. The plaintiff bought the lot at the price. The case was tried at the Circuit upon the issue whether a promise had been made by defendant to plaintiff. No question was made as to the liability of defendant in case there was a promise. The jury found for the plaintiff. The defendant now upon appeal first urges the objection that there was no legal consideration for the promise.

I think the case is not distinguishable in principle from Van Rensselaer v. Aiken (4 Barb., 547). In that case, several persons adjacent to a highway, agreed to pay to oue of their number certain sums designated by them for the repair of the highway. The promise was held to be good upon two grounds : First, there was a sufficient consideration in the benefit to be derived from the work; and, second, it was a conditional promise, and the acceptance of the offer and performance of the condition established the liability; the gratuitous promise to pay upon condition became binding upon performance of the condition. The plaintiff has acted upon the faith of the promise, and has expended his money as he agreed to do, and the defendant’s liability is fixed. (Wayne and Ontario Collegiate Institute v. Smith, 36 Barb., 584.)

Judgment should be affirmed, with costs

Gilbert, J., concurred, Dykman, J., not sitting.

Judgment and order denying new trial affirmed, with costs.


author: Gilbert, J. :

text:
    ANDREW J. PROVOST, Respondent, v. JAMES FARRELL, Appellant.

      Costs — taxation of.

    In an action of ejectment the plaintifE recovered upon the trial before a referee; a new trial was ordered by the General Term, costs to abide the event. On the second trial defendant obtained a verdict in his favor; a new trial was granted on the ground of newly-discovered evidence, on payment of $150, costs and disbursements of the action, and ten dollars costs of the motion, after payment of which, a third trial was had and a verdict rendered in favor of plaintiff.

      Held, that plaintiff was not entitled to tax costs for either the first or second trials, but only for the third.
    Fees paid to a stenographer and for preparation of maps cannot be taxed.
    Appeal from an order readjusting the costs of plaintiff, made on an appeal to the Special Term from the taxation by the clerk of Kings county.
    The costs accrued in an action of ejectment and the following proceedings have been had therein :
    On the first trial before a referee judgment was rendered for the plaintiff, an appeal was taken by the defendant to the General Term. The judgment was there reversed on the facts and the law, and a new trial ordered at Circuit, “ costs to abide the event.”
    On the second trial a verdict was given for defendant. A motion was made by plaintiff for a new trial on the minutes and on the ground of newly-discovered evidence; which motion was granted by Mr. Justice Gilbert upon payment by plaintiff “of $150.61, costs and disbursements of this action, and ten dollars costs of this motion.”
    On the third trial a verdict was given for plaintiff for the recovery of the land, without damages. A motion for a new trial was made on the minutes by the defendant, and denied by Mr. Justice Pratt, without costs.
    The following was the bill of costs presented by the plaintiff:

      1. To costs taxed on first trial and entered in judgment, $251 39
    2. To costs on appeal.............................
    3. Two terms, General Term cal..................... 20 00
    4. Before argument............................... 20 00
    5. Bor argument.................................. 40 00
    6. To printing points.................'.............. 17 50
    Second Trial.
    7. Trial of issue of fact............................. 30 00
    8. Trial more than two days........................ 10 00
    9. Term fees October and May..................... 20 00
    10. Jury and trial fee............................... 4 00
    11. Witnesses’ fees, J. V. Meserole, seven days and mileage, 6 86
    12. Nicholas Boch, seven days and mileage............. 6 86
    13. Register fees................................... 1 25
    14. Jos. B. Oolyer, seven days and mileage............. 6 88
    15. Stenographer’s fees........... 25 00
    Third Trial.
    16. Proceedings before and after granting new trial..... 25 00
    17. Trial issue of fact............................... 30 00
    18. More than two days.................■............ 10 00
    19. Register’s fees, maps............................. 1 25
    20. Jury and trial fees.............................. 4 00
    21. Witnesses.....’................................
    22. General Meserole, six miles, seven days............ 6 86
    23. Bartlett, six miles, seven days................. 6 86
    24. Opinion General Term......... 1 25
    25. Affidavits, etc........... 1 00
    26. Satisfaction-piece............................... 25
    27. Transcripts and filing............................ 37
    28. Certified copy judgment......................... 1 50
    29. Postage....................................... 60
    30. Stenographer’s fees............... 25 00
    31. Sheriff’s fees on execution........................ 1 38
    32. Maps, copies and drawings, etc.................... 75 00
    33. Clerk on entering judgment and tax............... 1 25
    34. Costs of motion for new trial..................... 10 00
    $661 31

      Tbe bill of costs, as presented, was.................... $661 31
    Tbe clerk struck out item 32 (maps, etc.).............. 75 00
    Costs as taxed..................................... $586 31
    Disallowed by Judge Dtkman :
    Item 15 (stenographer’s fees)................. $25 00
    Item 30 (stenographer’s fees)................. 25 00
    Item 34 (costs of motion).'................... 10 00
    Also $150 paid defendant.................... 150 00
    -- 210 00
    Leaving as costs........................$376 31
    The appellant claims that there should be deducted from
    the bill of costs of.................................. $661 31
    the followiug items:
    Item 1, costs of first trial................... $251 39
    Items 7 to 15, costs of second trial........... 85 85
    Item 15, stenographer’s fees.................. 25 00
    Item 30, stenographer’s fees.................. 25 00
    Item 32, maps, copies, etc................... 75 00
    Item 34, costs of motion....... 10 00
    Items 2 to 6, costs of appeal................. 97 50
    -- 569 74
    Leaving judgment for plaintiff of.................. $91 57

      W. P. Lynch, for the appellant.

      A. J. Provost, respondent in person.
   Gilbert, J. :

The plaintiff’s application for a new trial was not made under the provision of the Revised Statutes on that subject (2 R. S., 309, § 37), but was addressed to the discretion of the court. Hence the court had power to grant it upon terms less- severe than the statute cited prescribes. The court exercised that power, and granted the motion upon payment of part only of the defendant’s costs of the action, viz., $150.61. That, in legal effect, determined the right to all the costs of the action which had accrued prior to the entry of the order granting a new trial, except the costs of the appeal, in favor of tbe defendant,' limiting the amount thereof, however, to the sum named. After such an order neither party would be entitled to claim costs which had been so adjusted and ordered paid. The costs of the first trial, and of the second trial must, therefore, be disallowed. The items for stenographer’s fees, and maps are not taxable.

The result is, that the plaintiff is entitled to tax only the costs and disbursements of the appeal, and other costs which have been incurred since the entry of the order of July 7, 1877.

Ordered accordingly.

Present — Barnard, P. J., and Gilbert, J.; Dykman, J., not sitting.

Order reversed, and readjustment ordered in accordance with opinion.


author: Gilbert, J.:

text:
    ISAAC HALL and others, Appellants, v. ELLEN HALL and others, Respondents.

      Devise to alien — filing of deposition, under chapter 115 of 1845 — effect of.

    An action for partition may be brought, under the act of 1853, relating to disputed wills, when the property sought to be partitioned was devised, in the will of the testator, to a devisee who was incompetent to take by devise because of alienage.
    A testator devised certain real estate to his sister and her husband, for their joint lives and the life of the survivor, with remainder to the children of the sister. All these children were aliens at the time of the testator’s death, and had not filed the deposition required by the laws of this State, to enable them to hold such real estate, but one of them filed the deposition as required by the act of 1845 (chap. 115), and all were naturalized prior to the death of their mother.

      Held,, that upon the death of the testator, this sister and her husband took an estate for life in the property.
    That the devisees of the estate in remainder, being incompetent to take, such estate vested in the citizen heirs of the testator, subject to be defeated by the filing by the devisees of the deposition provided for in section 1 of chapter 115 of 1845.
    That, upon the filing of such deposition by the said devisees, the estate of the heirs would divest, and the same would vest in the devisees named in the will.
    Section 11 of the said act excepts from its operation only those interests which had become vested prior to its passage.

      That the omission of two of the devisees to file the deposition was cured by , chapter 88 of the Laws of 1875, conferring upon heirs and devisees, being of the blood of the devisor, whether citizens or aliens, capacity to take and hold the real estate owned and held by the devisor at the time of his decease — except as against the State only; the act of 1875 being retroactive in its operation.
    The practice of directing a pi'o-formu verdict at Circuit, and reserving the cause for further argument and consideration to be had' on a motion made on the judge’s minutes to set aside the verdict, and on the hearing of such motion directing judgment in favor of the party entitled thereto approved.
    Appeal from an order made at the Special Term, setting aside tbe verdict of a jury, and directing tbe dismissal of tbe complaint herein.
    Tbe action was brought under tbe act of 1853, in relation to disputed wills, tbe plaintiffs claiming tbe partition of lands devised to and in possession of tbe above named respondents. Tbe pleadings presented, in form, various issues of fact. Tbe case wras tried at tbe Circuit. At tbe close of tbe evidence, tbe court directed tbe jury to find a verdict for tbe plaintiffs, and ordered tbe -cause to be reserved for further argument and consideration, on a motion on tbe judge’s minutes to set aside tbe verdict. Such motion was beard accordingly, and tbe court ordered tbe verdict to be set aside, and also ordered judgment to be entered for the defendants, with costs. Judgment having been entered accordingly, tbe plaintiffs appealed.
    William Hall, at tbe time of bis death, on tbe 26th day of July, 1861, was seized in fee and possessed of the premises described in tbe complaint, together with other lands. His will, dated tbe 19th day of March, 1859, and duly executed, was admitted to probate on tbe 23d day of September, 1861. Tbe following is an extract from bis will: “ I give, devise and bequeath unto tbe children of my said sister Sarissa all that portion of tbe farm owned and occupied by me in Newtown, Queens county, subject, however, to a life estate therein, which life estate I do hereby devise and bequeath to my said sister Sarissa, and to her said husband, Thomas Spalding, for and during their lives and tbe life of the survivor.”
    Tbe testator died siezed of tbe premises in question on tbe 26th day of July, 1861, leaving no wife and children, and leaving as bis only heirs at law and next of kin, bis brother, Isaac Hall, bis sister, Sarissa Spalding, and tbe children of Thomas Hall, a deceased brother. Tbe children of Thomas Hall, at the time of tbe death of the testator, were the plaintiffs Isaac Iiall and Susannah A. Schenck, the defendants Ellen Hall, Thomas Hall and-Daniel Hall, who died after the death of the testator, leaving no widow or children.
    Sarissa Spalding died December 19, 1874. Her children, at the testator’s death, were Jeremiah B., Susannah E., Ann Sarissa and Thomas Isaac. These children of Sarissa Spalding were residents .of the State of New York at the time of the death of William Hall and have resided in the State ever since 1857, except that Thomas Isaac died after the testator’s death, leaving no widow or children.
    Isaac Hall, a brother of the testator, died "in 1864, after the death of the testator, leaving a widow, but no children.
    At the death of the testator, July 26, 1861, the plaintiffs and the defendants Ellen Hall and Thomas Hall, children of Thomas Hall, the brother of the testator, were competent to hold real estate. Isaac Hall, the brother of the testator, was naturalized October 23, 1840. Ann Hall, wife of said Isaac, filed her deposition ’May 30, 1856, and was naturalized October 21, 1861.
    All of the above mentioned persons were competent to hold real estate when the testator died, having either filed the deposition required by the laws of this State, in the office of the Secretary of State, or having been naturalized before the testator died.
    Thomas Spalding, and Sarissa, his wife, to whom the testator gave a life estate in the premises in question, were competent to hold real estate at the testator’s death.
    The defendants Jeremiah B. Spalding, Susannah E. Spalding, and Ann Sarissa Lewin were not competent to take and hold real estate at the death of the testator.
    Jeremiah never filed any deposition, and was not naturalized until March 3, 1870. Susannah did not file any deposition until after the testator’s death, to wit, October 23, 1861, and was naturalized December 19, 1863. Ann Sarissa was naturalized November 25, 1862, and she filed no deposition before the testator’s death, nor at any time afterwards. Thomas Isaac died after the testator’s death, and never filed any deposition, nor became naturalized! The plaintiffs Isaac Hall and Susannah A. Schenck, and the defendants Ellen Hall and Thomas Hall, children of Thomas Hall, were heirs of their brother, Daniel Hall, who died after the testator’s death, leaving no widow or children.

      Sidney S., Harms, for the appellants.

      T. James Glover, for the respondents.
   Gilbert, J.:

The practice adopted, by the judge at Circuit of directing the jury pro forma to find a general verdict for the plaintiff, then reserving the case for further consideration, and afterwards directing a general verdict for the party entitled to it, is a very useful one when only questions of law are involved, and it was expressly sanctioned by the Code of Procedure. (§ 264.) It was also conformable to the practice before the legislature had interposed its power to regulate it by codification. It was approved by this court at General Term, and by the Court of Appeals in the case of Maria L. Strong v. The City of Brooklyn (not reported). The Code of Civil Procedure (§ 1189) contains a provision similar to section 264 of the former Code, but some confusion on this subject has been introduced by sections 1185 and 1234 of the Code of Civil Procedure. As the judgment' in this case was entered before the latter Code went into operation, it is not necessary to determine the legal effect of those sections.

If a devise to a devisee, who is incompetent to take, be void, then this action is within the words of the act relative to disputed wills. . (4 Edm. Stat., 504, § 2.) That such a devise is void, that is of no force or effect, and not voidable only, is clear. The objection of the defendants on this point, therefore, was properly overruled.

Nor can we assent to the proposition that Susannah E. Spalding would take all the estate devised to her and her co-tenants in case of the incompetency of the latter to take. It is not necessary to dwell on that proposition, because we think that the devisees have established a valid title as tenants in common of the estate in controversy.

The testator is the common ancestor. By his will he devised the lands in controversy to his sister Sarissa Spalding and her husband Thomas-Spalding for and during their lives and the life of the survivor with remainder to the children of his said sister, their heirs and assigns forever. The testator died July 26, 1861. It is conceded that the parents of these children were competent to hold real estate at the time of the testator’s death, having before that time made and filed the deposition prescribed by section 15, article 2, title 1, chapter 1, part 2 of the Eevised Statutes. (1 E. S., 720.) Their children, however, did not file any deposition nor become citizens until after the testator’s death. The plaintiff contends that by reason of their failure to file depositions in conformity with the statute last cited (1 E. S., 720, § 15) before the death of the testator, the devise to them was void. A devise to a person, who at the time of the death of the testator was an alien not authorized to hold real estate, is declared by statute to be void. (2 E. S., 57, § 4.) It will be noticed that this statute impliedly declares that there may be aliens who are authorized, as well as aliens who are not authorized to hold real estate. The devisees in remainder in this case are collateral heirs of the testator, but being aliens, the common law incapacitated them from taking by descent, while it enabled them to take by devise or purchase, subject to forfeiture to the State upon an inquest of office found. (Wadsworth v. Wadsworth, 2 Ker., 376; Goodrich v. Russell, 42 N. Y., 177.) The disability to take by devise or purchase was created by statute. (1 E. S., 719, § 8; id., 720, § 17.) Section 8 enumerates the persons capable of taking and holding real estate, and does not include an alien devisee. Section 17 incapacitates an alien from taking or holding any real estate which may have been devised to him before he became a resident, and made the deposition prescribed by 1 Eevised Statutes, 720, section 15, before referred to. The question is, whether such disability has been removed in the case before us.

It is claimed on behalf of the devisees, Spalding and Lewin, that such disability has been removed by the provisions of the act of 1845 (chap. 115) to enable resident aliens to hold and convey real estate, etc. (4 Edm. St., 300.) The first section of that act provides that any alien resident of this State to whom any real estate has been or thereafter may be devised, before making the deposition mentioned may, on filing such deposition, hold the real estate devised to such alien in the same manner, and with the like effect as if such alien at the time of such devise were a citizen. These devisees are within that description of persons. There can be no doubt that this enactment protects and confirms the devise to Susannah E. Spalding, unless to give it that effect would divest a vested estate in the citizen heirs of the testator. We think it had no such effect, but that its effect was to lessen the estate which but for the statute and devise would have descended to the citizen heirs, and to declare that the estate which actually-descended to the latter, should be defeasible upon the filing of the depositions aforesaid. The statute cannot be defeated, but on the-contrary, must be carried into effect, if any legal means can be devised for that purpose. We find no difficulty in performing that duty. For it is necessary only to hold that the estate which descended to the citizen heirs was subject to the operation of the statute ; that the full effect of the devise was postponed until said devisees should file their depositions, and that in the meantime the estate was vested in the citizen heirs, subject to be divested by the filing of the depositions. That the. legislature has. power to make such a change in the rules of descent, we think admits • of no question. (Cooley Const. Lim., 359, et seq.) It is equally clear, that .the object of the act of 1845 was to remove the disabilities resting upon alien devisees, at’ the time of its passage, in case they filed the deposition referred to.. It is worthy of mention that the fourth section of this act, also, in terms, enables alien heirs to take by descent from a resident alien, with the same effect as. if such resident alien were a citizen. Strictly construed, this provision would not embrace a descent cast from a citizen. (See Larreau v. Devignon, 5 Abb. [N. S.], 367.) It is not necessary to decide whether such a construction would be compatible with the intent of the legislature manifested in the act; otherwise, we should be strongly inclined to hold that their intention in enacting the fourth section was to remove from resident- aliens all disability to hold real estate by inheritance from a resident alien ancestor, who had acquired the same by purchase, and to confer upon them capacity to take and hold the same in case they should take the preliminary proceedings for becoming citizens. That object is in furtherance of enlightened public policy, and affords complete ground for a liberal interpretation of the statute. But whether such construction be correct or not, the capacity to take by descent, which this section confers upon resident aliens, authorizes them to hold real estate devised to them within the meaning of the statute of wills. (2 B. S., 57, § 4.) The statute certainly does not invalidate a devise to one who is capable of taking and holding real estate, either by purchase, devise or descent from any person. It does not require a general capacity to take and hold by all modes of vesting estates, or a special capacity to take and hold by devise. It is enough- if the devisee is capable of holding by either mode of devolving seizin of real estate. The case of Heney v. The Brooklyn Benevolent Society (39 N. Y., 333) is not in conflict with, but is rather confirmatory of, the foregoing views. That case arose under section 1 of the act of 1843 (4 Edm. Stat., 299), and there was no devise or grant in the case, but only a descent cast before the naturalization of the heirs. Section 1 of the act of 1843 only enabled heirs of the intestate who had become naturalized before his death, to inherit his estate; whereas the first section of the act of 1845, in terms, confers capacity to take upon alien devisees who have filed the deposition after, as well as those who had filed it before the' passage of the latter act. Nor does the saving clause in the eleventh section of the act of 1845 qualify the operation of the provisions thereof to which we have referred, for the reason that that section excepts from the operation of the act only interests which had become vested before its passage ; whereas the death of the testator did not occur until sixteen years after its passage.

The result is that, as respects Susannah E. Spalding, the devise is good by virtue of the original act of 1845, she having filed her deposition conformably to section 15 of the Revised Statutes, before cited, on the 23d of October, 1861. Jeremiah B. Spalding and Add Sarissa Lewin have never filed the deposition required by that statute, but we think such omissions have been cured by statutes amending chapter 115 of the Laws of 1845. (Laws of 1874, chap. 261; Laws of 1875, chap. 38.) The latter act was passed March 3, 1875. This suit was not commenced until on or after July twenty-first, following. The act of 1875 confers upon heirs and devisees, being of the blood of the devisor, whether citizens or aliens, capacity to take and hold the real estate owned and held by the devisor at the time of his decease, whether such devisor was an alien or a citizen, except as against the State only. The saving clause contained in section 2 of the act of 1874 does not embrace the plaintiffs, because they claim 'by descent, and not by “ devise, grant, gift or purchase.”

The act of 1875, we think, was plainly intended to operate retroactively, and its effect was to render the title of all the devisees, under the devise in controversy, perfectly valid as against the plaintiffs, before the commencement of this action. In short, the estate of the heirs was defeasible on the devisees acquiring capacity to take the estate by filing the deposition. Then the acts of 1814 and 1815 dispensed with the formal act of filing a deposition, and conferred the requisite capacity to take without that formality.

The judgment and order appealed from must be affirmed, with costs.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Judgment and order denying new trial affirmed, with costs.


text:
    THOMAS H. GERATY and JOHN N. KEIN, Appellants, v. PHILIP H. REID, Respondent.

      Justice of the peace in Brooklyn —jurisdiction of.

    By section 35 of chapter 125 of 1849, conferring the same jurisdiction upon justices of the peace in the city of Brooklyn, in said city, as justices of towns have by-law in respect to the towns, the legislature intended to restrict the territorial jurisdiction of the justices to the city itself.
    Appeal from a judgment of the County Court of Kings county, reversing a judgment of a justice of the peace in favor of the plaintiff.
    The only question presented hy this appeal was as to the power of a justice of the peace of the city of Brooklyn to issue and cause a summons to be served on the defendant in this action, in the town of New Lots, in Kings county.

      John F. Baker, for the appellants.

      PhiU/p K Oroolce, for the respondent.
   Gilbert, J.:

Under the Constitution, as amended in 1869, justices of the peace in cities may be invested with such powers as shall be prescribed by law. (Art. 6, § 18.) This is a new provision, and enlarges the power of the legislature. The case of Brandon v. Avery (22 N. Y., 469), therefore, is not now an authority on this point.

The powers of a justice of the peace in the city of Brooklyn are derived from the act of 1849, to establish courts therein (chap. 125, § 35). That act confers the same jurisdiction in said city, that justices of towns have by law in respect to the towns. We think the fair import of the act is to restrict the jurisdiction of justices of the peace territorially, to the city exclusively; otherwise no appropriate meaning can be given to the phrases “in said city,” and “ in respect to the towns,” used in the act. If the legislature had intended to confer precisely the same jurisdiction as was possessed by justices of the peace in towns, they would have omitted those phrases and simply granted the same jurisdiction as had been granted by law to such justices. When the act of 1849 was passed, the legislature had no power to confer any jurisdiction upon a justice of the peace that was not strictly local. (Brandon v. Avery, supra.) It must be presumed, therefore, that the legislature intended to keep within the power then possessed by that body, and the language employed must be construed accordingly. We think, therefore, that the justice of the peace in this case acquired no jurisdiction by means of the service of the summons upon the defendant in the town of New Lots.

The judgment must be affirmed, with costs.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Judgment affirmed, with costs.


text:
    JAMES A. R. HAY, Respondent, v. JOHN HAY, Appellant.

      Setting aside of contract for fraud — offer to restore whatwas recevoed under the contact— when necessa/ry to he made in the complaint — •Joinder of causes of action.

    Where an action is brought to set aside a contract, on the ground that the plaintiff was induced to enter into it through the fraud of the defendant, it is not necessary that the complaint should contain an offer to restore what has been received under it.
    It is only when relief against an illegal contract is sought, and a statute requires that an offer to do equity must be made, that such an offer is necessaiy. '
    A joinder in one complaint of a cause of action, arising from duress and restraint exercised over plaintiff’s ancestor in inducing him to execute a will, and of a cause of action arising from false representations made to plaintiff, by reason of which plaintiff waived all objections to the probate of such will, is proper.
    Appeal from an order made at tlie Special Term, overruling a demurrer to the complaint.

      Sannuel B. Higenbotam, for the appellant.

      Q. F. Wells, for the respondent.
   Gilbert, J.:

This is an appeal from an order of Mr. Justice Barnard, at Special Term, overruling a demurrer to the complaint. The complaint alleges in brief, that the plaintiff is the son and sole heir and next of kin of James Hay, deceased. That while said James Hay was insane and under the duress and restraint of the defendant, on the 21th of September, 1869, the latter extorted from him an agreement in writing, and on the same day, with fraudulent intent and unlawful coercion, induced him to execute a will, wherein defendant is named sole legatee and executor. That on December 31, 18J0, the defendant was appointed by this court, committee of the person and estate of said James Hay, who had been adjudged a lunatic.

That after the death of James Hay, the defendant concealing from the plaintiff, who had until then resided in Scotland, all facts relating to the mental condition and restraint of James Hay, by false representations induced the plaintiff to enter into an agreement with him. by which plaintiff waived all objections to the probate of the will, and the defendant qualified, and has ever since continued to act as executor thereof. That thereafter, April 22, 1873, the defendant, by like concealment and false and fraudulent representations as to plaintiffs interest in his -father’s estate, obtained from the plaintiff a general release, individually and as executor, and the prayer of the.complaint is that these four instruments be adjudged to be void.

The defendant demurs on two grounds: First, misjoinder of several causes of action, in-uniting in one complaint the two frauds perpetrated upon the father with the two which were subsequently practiced upon the son; second, that the complaint does not state facts sufficient to constitute a cause of action.

A plaintiff who seeks equity, must do equity. Therefore, if he asks the court to decree a rescission of his contract with a defendant for the fraud of the latter, the court will not grant him the relief, unless he restores whatever he has received from the latter, and which rightfully belongs to him. That condition will be imposed whether there be an offer to restore -in the complaint or not. It is, however, a condition of granting relief, not of instituting a suit. It is only when relief against an' illegal contract is sought, and a statute requires that an offer to do equity must be made in the complaint, that such an offer is necessary.

We think, therefore, that an offer to restore is not a necessary ingredient of the cause of action, and that a demurrer will not lie for the omission to insert such an offer in the complaint.

The joinder of the several causes of action in this case would not have rendered a bill multifarious according to the practice of courts of equity before the Code (Story Eq. PI. [7th ed.], §§ 531 to 531, 539), and the Code is still more comprehensive. It authorizes such joinder when the several causes of action arise out of the same transaction or transactions connected with the same subject of action. The subject of this action is the disherison o'f the plaintiff, and each cause of action is directly connected therewith. (N. Y. and N. H. R. R. Co. v. Schuyler, 17 N. Y., 604.)

The order must be affirmed, with costs.

Dykman, J., concurred; Barnard, P. J., not sitting.

Order overruled, demurrer affirmed, with costs..


text:
    ELIZA JANE PARKINSON, Special Guardian of GEORGE W. W. RINCHEY, an Infant, Respondent, v. GEORGE H. M. JACOBSON and MARY S. D. JACOBSON, his Wife, MARY A. SHERMAN and SYLVESTER J. SHERMAN, her Husband, and others, Appellants.

      Sale of inf amts real estate — mortgage given by purchaser — want of title m infant— no defense to.

    In proceedings instituted ior the sale of the real estate of an infant, it was alleged that his father, through whom, by descent, the infant acquired title to the property sold, was dead, A conveyance of the property was duly made in such proceedings to one Jacobson, who gave back a bond and mortgage to secure a portion of the purchase-money. This action was brought against the person to whom Jacobson had conveyed the premises, subject to the mortgage, and who had assumed the payment thereof, to foreclose the same. The defendant set up as a defense that the father was still living.

      Held, that, as the answer failed to set up any eviction or disturbance of defendant’s possession, the answer was properly stricken out as frivolous.
    Appeal from an order made at the Special Term, striking out a portion of the defendant Mary A. Sherman’s answer as frivolous and irrelevant.

      Francis Byrne, for the appellants.
    The allegations of the answer (stricken out) not being contradicted by affidavit, are to be taken as true; and they establish a total failure of title in said infant, and either a willful falsification or a mistaken assertion of the fact that said George Rinchey was not alive; and upon either the ground of fraud or mutual mistake, the contract of sale and the bond, mortgage and all conveyances. should be set aside. (1 Story’s Eq. [12th ed.], §§ 140, 141, 142, 143, 144; Denston v. Morris, 2 Edward’s Oh. R., 37; Hoosmelt v. Fulton, 2 Gow., 129; Bennett v. Judson, 21 N. Y., 238; Bi/ngham v. Bingham, 1 Yesey, Senior, 127; Stapleton v. Scott, 13 Yesey, 425 ; Hitchcock v. Bid-dings, 4 Price, 135 ; Chamtplin v. Laytin, 1 Edw. Ch. R., 471; 6 Paige, 89.) Omission to make inquiries was not negligence. {Mead, Adm'x, etc., v. Bmvn, 32 N. Y., 275.)

      W. T. Milliken, for the respondent.
    A grantee of the equity of redemption, who has assumed the payment of the mortgage, cannot contest the consideration of the mortgage. (Shadbolt v. Bassett, 1 Bans., 121; Ritter v. Phillips, 53 N. Y., 586 ; Freeman v. Auld, 44 id., 50.) Even the mortgagor in a purchase-money -mortgage cannot be relieved, on the ground of a failure of title, unless he has been evicted. (Curtis v. Busch, 39 Barb., 661; Bwnpus v. Plainer, 1 Johns. Ch., 213; Abbott v. Allen, 2 id., 213; BcmJcs v. Walker, 2 Sandf. Ch., 344.) The fact that there may be a decree in personam for deficiency does not alter the principle. {Ed/wwrds v. Bodine, 26 Wend., 109; Miller v. Morrell, 3 Edw. Ch., 560.) In order to have a right of action or counter-claim where all other conditions exist, there must be a surrender of the property to one having a paramount title. (3 Washburn, 403; Simers v. Saltus, 3 Denio, 214; St. John v. Palmer, 5 Hill, 599 ; Curtis v. Busch, 39 Barb., 661; Walker v. McCarty, 3 Johns., 471; Kerr v. Sham), 13 id., 236.)
   Gilbert, J.:

George W. Rinchey was the owner of real estate in the city of Brooklyn. Plaintiff was his wife and the infant ward was their child. The infant, by plaintiff, presented a petition to the Supreme Court in the city of New York, on the 27th day of November, 1867, stating that the father had died on the 20th of July, 1866, in Mexico, intestate, seized, etc., leaving the infant his only heir, and prayed for leave to sell said property. Plaintiff was appointed special guardian, and the several proceedings were had upon the petition resulting in an order for the sale and conveyance of the mortgaged premises, and pursuant to such order the same were sold and conveyed to one Jacobson. Jacobson gave back to the plaintiff the bond and mortgage in suit for a part of the purchase-money. Afterwards Jacobson conveyed said premises to the defendant Mary A. Sherman, and she assumed the payment of the mortgage. The defendants now set up as a defense to this action that Rinchey was alive when said order of sale was made, but do not aver any eviction or disturbance of the possession of said premises.

We think the defense was a sham one. It sets up no breach of covenant by the plaintiff nor any eviction of the.defendants. It is well settled that where the purchaser remains in quiet and peaceable possession of the premises, he cannot have relief against the contract to pay the purchase-money or any part of it on the ground of defect of title, nor does the fact that there may be a judgment for a deficiency against the defendants enable them to defend because of a failure of their title, until after an eviction. (Thomas on Mortgages, 292, et seq.; Thorp v. Keokuk Coal Co., 48 N. Y., 256.)

The order must be affirmed, with costs and disbursements.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Order striking out parts of answer affirmed, with costs and ■ disbursements.


author: Gilbert, J".:

text:
    ASA W. PARKER, Respondent, v. THE LONG ISLAND RAILROAD COMPANY, Appellant.

      Exempla/i'y damages — when not allowable.

    The plaintiff, in pursuance of a contract made with the defendant, claimed to be entitled, by virtue of a commutation ticket, to ride to East New York. Having exercised this right for some time the defendant refused to carry him to that point unless he would pay extra fare from Jamaica to East New York; and upon Ms refusal so to do, in obedience to an order of the defendant, the conductor ejected him from the train, using, in so doing, no unnecessary violence. Upon the trial of this action, brought to recover damages for so doing, the court charged that the evidence was not sufficient to give punitive damages against the conductor, but that plaintiff was entitled to have the railroad company punished to such an extent as the jury should, in their discretion, say the facts authorized and demanded. Held, that the charge was erroneous.
    Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      Edmarrd E. Sprague, for the appellant.

      S. E. Morris, for-the respondent.
   Gilbert, J".:

In July, 1876, plaintiff made an agreement with defendant to carry him for one year between Ridgewood and Brooklyn, and the agent of the defendant, with whom the contract was made, told the plaintiff that the commutation was good to either Long Island City, Bushwick or East New York. At that time the defendant gave him six commutation books for the months up to January, and promised to give the balance of the books before the expiration of the first six months. The books delivered were books of the Southern Railroad Company, the predecessors of the defendant. Plaintiff afterwards rode between Ridgewood and the three Stations last named, respectively, his right to do so not having been disputed until about 25th September, 1876, when the defendant refused to carry him to East New York unless he paid the fare between Jamaica and East New York. Plaintiff tendered his ticket and refused to pay; thereupon he was ejected, pursuant to an order of the defendant, the conductor using only nominal force in removing him from the car. The jury rendered a verdict for $400.

Assuming that the contract between the parties entitled the plaintiff to ride on the railroad running between Jamaica and East New York, the exclusion of him from the car was wrongful and the defendant is liable for the damages sustained by the plaintiff in consequence thereof. It may well be doubted, however, whether the plaintiff really had the right which he asserted. We have not considered that question, as there is another one which is decisive. The judge, after instructing the jury, as the evidence required him to do, that there was not sufficient evidence to give punitive or exemplary damages against the conductor, and that the plaintiff had admitted that he had suffered only nominal damages, gave this further instruction, namely, “ that he ” (the plaintiff) “ is entitled to have this railroad company punished to such an extent as the jury shall, in their discretion, say the facts authorize and demand.”

We think that the judge erred in permitting the jury to give exemplary damages. It was conceded that nothing in the conduct of the conductor warranted any thing more than compensatory damages. And yet the defendant is liable only for the acts of the conductor. The fact that he acted under the orders of the defendant, only proves the authority of the conductor to do the acts. The law would imply the same authority from the nature of his employment. In Hamilton v. Third Avenue Railroad Company (53 N. Y., 30) the Court of Appeals, per Grover, J"., held that “no ease for exemplary damages, had the action' been against the conductor, was established, and if not against him, clearly not against the master.” Upon principle, the rule cannot be otherwise where a conductor executes an order of his master which was given without evil intent. The case does not furnish the slightest evidence indicating that the company entertained any malice or ill-feeling toward the plaintiff, or that the order under which the conductor acted was given with any intention to injure the plaintiff, or with any other purpose than that of the assertion, in good faith, of a legal right supposed to belong to the defendant, and the performance of an official duty by the officer who issued the order. In such a case punishment is not deserved, and an example is not necessary. It is only.in cases of moral wrong, recklessness or malice, that the exceptional rule of public policy, which allows exemplary damages, applies. . (53 N. Y., supra.)

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

Dykman, J., concurred; Barnard, P. J., dissented.

Judgment and order denying new trial reversed and new trial granted, costs to abide event.


text:
    THE KNICKERBOCKER LIFE INSURANCE COMPANY, Respondent, v. GEORGE W. NELSON and others, Appellants.

      Bonds and, mortgages — uswy in — by whom, after conveyance of the mortgaged property, it may be set up.

    One Nelson, on October 13, 1874, in pursuance of an usurious agreement entered into between himself and the plaintiff, executed and delivered to it four bonds and mortgages. On February 19, 1875, he conveyed the property covered thereby to one L., subject to the mortgages. On March 15, 1875, L. conveyed the same, subject to the mortgages, toW., who, on March 23, 1876, reconveyed the premises to Nelson, the conveyance not being stated to be subject to the mortgages.

      In an action brought to foreclose the mortgages, held, that Nelson, being the “borrower,” and the mortgages being liens only upon his own property, was entitled to set up the defense of usury and have the bonds and the mortgages collateral thereto declared null and void.

      Quaere, whether, if any of the intermediate grantees of the property had become bound for the payment of the bond and mortgage, the mortgage might not be considered as collateral security for that liability, and enforceable with it.
    Appeal, by George W. Nelson, from a judgment entered upon the trial of this action by the court without a jury.

      Morris & Pearsall, for the appellant.

      Hervry W. Johnson, for the respondent.
   Gilbert, J.:

This is an action to foreclose four mortgages executed by George W. Nelson to the .plaintiff, upon premises situated in the city of Brooklyn, to secure the payment of. his bonds for the aggregate sum of $YO,000, each dated on the 13th and recorded on the 15th of October, 18Y4, and to enforce the personal liability of Nelson upon said bonds. Nelson set up the defense of usury. The justice at Special' Term found, as matter of fact, that the bonds and mortgages were executed pursuant to a corrupt and usurious agreement. He also found that, on the 19th day of February, 18Y5, Nelson and his wife conveyed the mortgaged premises to Felix W. Leinbach, Augustus Wellee and Simon O. Pettee, subject to the mortgages; that on the 15th of March, 18Y5, the said Leinbach, Wellee and Pettee, conveyed said premises to the defendant, Charles M. Watkins, subject to said mortgages ; and that on the 23d day of March, 18Y6, Watkins reconveyed the premises to the defendant Nelson, which conveyance was not made subject to the mortgages in question, or either of them.

As conclusions of law the court found, that Nelson could not avail himself of the defense of usury so far as the mortgages affect the land covered thereby, but that as to his liability upon his bonds said defense of usury was available, and as to such liability said bonds and mortgages are usurious and void. Judgment was entered accordingly.

I think the facts found do not warrant the conclusion of law, and that Nelson was entitled to a judgment avoiding the bonds and mortgages altogether. He is the “borrower.” As such he is entitled, by the express provisions of the statute, to have the usurious contract annulled, and the bonds and mortgages surrendered and canceled without paying or offering to pay any part of the money loaned. (1 Edm. Stat’s, 725, §8; 4 id., 460, §§4, 5 ; Minturn v. Farmers' Trust Co., 3 Coms., 498; Allerton v. Belden, 49 N. Y., 378.) The usury having been proved Nelson is entitled to the relief provided by the statute, and I cannot find any authority for imposing any restriction upon such relief. If he is entitled to any relief at all it must be full relief, without any condition or limitation, for the reason that he is the “ borrower,” and has never been released from his obligation as such. The statute absolutely requires the court to afford that relief to a borower ” who has legally established the invalidity of the usurious contract.

Nor is there any way by which a usurious debt or security, in whole or in part, can be rendered valid as an executory contract. The statute makes it void in its inception, and so it must forever remain. (Miller v. Hull, 4 Denio, 104; Brackett v. Barney, 28 N. Y., 333; Cope v. Wheeler, 41 id., 303-311-314-315.)

It has been held in many cases that a grantee of “ the equity of redemption,” as the interest of the mortgagor in mortgaged premises has been designated, is not a borrower within the meaning of the statute, nor in privity with him as to so much of the estate mortgaged as is necessary to satisfy the mortgage debt, and that, therefore, such grantee cannot 'question the validity of the mortgage. Yarious reasons for so incapacitating such a grantee have' been assigned besides the lack of privity mentioned. By some it has been said that the mortgagor, by conveying the mortgaged premises, subject to the mortgage, or by assigning them upon trust to pay the usurious debt, makes an appropriation of the property for the payment of said debt; -that if such grantee were allowed the defense it would not inure to the benefit of the borrower, but would operate to discharge such grantee pro tcmto from the payment of the money which he had agreed to pay, and that the statute was not intended for such a purpose. (Merchants' Ex. N. Bk. v. Com, Warehouse Co., 49 N. Y., 643, and cases cited.) Others have said that a sale of the mortgaged premises, subject to tbe mortgage, is an affirmance of the mortgage. These reasons, however, can mean nothing more than that the mortgagor has put his grantee in a position that will disable him from setting up the usury; for no principle is better settled than that a usurious contract is wholly incapable of confirmation. It seems to me that the reason stated in Hartley v. Harrison (24 N. Y., 110), namely, that such grantee is a stranger to the usurious contract, and is not in privity with the mortgagor, because he took, not the whole estate, but the equity of redemption only, and therefore the usury does not affect him in his person or estate, would have better support, in principle, than either of the others mentioned, if a conveyance by a mortgagor of the mortgaged premises did not pass the entire estate therein. But, in this State, a mortgage is a mere incumbrance, extiuguishable by a tender. The whole legal estate remains in the mortgagor, notwithstanding the mortgage (Kortright v. Cady, 21 N. Y., 343; Ten Eyck v. Craig, 62 id., 406, 421), and will pass by a conveyance from him, without any conveyance from the mortgagee, charged only with a lien for the mortgage debt. (Id.)

Whatever ground may be assumed, however, for incajiacitating a grantee from setting up the defense of usury, the rule has had, and in the nature of things can have, no other effect, than to close his mouth. No conveyance, or other act of the grantor, can render valid the usurious debt or security; nor can a mortgage which is void for usury be • converted into a valid charge upon the land described therein, otherwise than by surrendering the mortgage, 'purging the transaction of the usury, and executing a new instrument for that purpose. The argument that usurious mortgages can become valid liens, as against anybody, is not supported by any authority that I have met with. The most that has been decided upon that subject is, that grantees of the equity of redemption” cannot be heard to allege the invalidity of them. In Cope v. Wheeler (supra), Woodrukf, J., whose opinion is cited by the plaintiff held expressly, that the ability of a mortgagee to enforce his lien against his grantee, arose, not from the fact that the mortgage was not void as between the pai’ties thereto, but the grantee was not at liberty to use that as a defense, having retained in his hands the amount.

Hence, a grantor who is the actual borrower, may still aver and prove the usury, whensoever it becomes necessary to protect himself or his property against liability for the usurious debt. If, after having conveyed the mortgaged premises, he is discharged from the debt, he ceases to be the borrower, for the reason that in fact, or in legal effect, he has returned the money borrowed, and the entire obligation of a borrower has been extinguished. A reconveyance to him of the whole estate mortgaged, and not of the “ equity of redemption ” only, would not revive the debt or rehabilitate him as a borrower, but would merely invest him with the rights of a purchaser. The statute was designed to relieve only the injured party to the usurious contract by releasing him from liability thereon. If this liability has been already discharged, nothing remains for the statute to operate upon. The security falls with the debt so far as the borrower is concerned. A grantee will be estopped from claiming that such discharge has avoided the security, when it appears that he took the land subject to it, and that the debt has not in fact been paid. The same principle of estoppel would be applicable to a grantee who had taken a conveyance, subject to a mortgage, which had been paid by the mortgagor. But, I apprehend that the mortgagor, on reacquiring the property, would not be estopped from pleading the payment of his mortgage in defense of an action for the foreclosure thereof. A mere purchaser from the grantee stands in his shoes. That is the principle decided in Schermerhorn v. Talman (14 N. Y., 93), for in that case the plaintiff, who was the borrower, repurchased the mortgaged premises after he had obtained a discharge in bankruptcy from all his debts. The decision is put distinctly upon the ground that he sought relief, only by virtue of the title which he acquired, after his discharge in bankruptcy. (See also Wheelock v. Lee, 64 N. Y., 247.) In the case before us Nelson is .the maker of the bonds and mortgages, the usurious contract was made with him and he has never been discharged from liability thereupon, consequently he is entitled to have his bonds declared void. When that shall be done, the liens of the mortgages, being merely collateral to the bonds, will necessarily cease for the reason that they are liens only on his property. Those liens cannot be preserved as against Watkins, the defendant who made the reconveyance, for he no longer has any interest in the mortgaged premises, and he is not liable for tbe payment of the usurious debt. The decree against him in this case is wholly inoperative and nugatory. If there had been a personal liability on the part of the defendant "Watkins to pay the mortgage debt, perhaps it would not be in the power of Nelson and himself, by any act of their own, to release that liability without the consent of the mortgagee (see Hartley v. Harrison, [supra]; Stephens v. Casbacker, 8 Hun, 116), and in that case, if a strong desire to frustrate the statute of usury should be indulged, the mortgages might be treated as collateral security for that liability, and enforceable with it. But no personal liability on the part of Watkins exists. The mortgages, therefore, stand as liens on lands belonging to Nelson, created by him, as securities for his bonds only, on which he is still liable, and those bonds are void. He is entitled, therefore, to all the consequences of a successful defense of usury, namely, the avoidance of the usurious contract and all securities given in pursuance thereof. It follows that the judgment is right, so far as it adjudges the bonds to be void, but that it is erroneous so far as it directs or permits an enforcement of the mortgages against the land.

The judgment should be reversed, and a judgment in the usual form should be entered in favor of the defendant Nelson, with costs.

Present — Gilbert and Dykman, J J.; Barnard, P. J"., not sitting

Judgment reversed, so far as it decrees a foreclosure and sale under the mortgage set forth in the complaints, and judgment ordered that the bond and mortgage both be declared void, and that the complaint be dismissed, with costs.


text:
    JAMES HOYT, Respondent, v. GEORGE W. MEAD, Impleaded with MARTIN R. MEAD, Appellant. SAMUEL HOYT, Respondent, v. SAME, Appellant.
    Note-— addition of word, “ surety ” to name of one joint mahes’ — action how brought thereon.

    Where two persons execute a note and one of them adds to his signature the the word “surety” both are to be treated as makers of the note and may be joined as defendants in an action upon it; nor is the liability of the surety to the holder of‘the note affected by any equities existing between such surety and his oo-defeddant.
    Appeal frorh a judgment in favor of the plaintiff, entered upon a verdict directed by the court.
    This action was brought upon the following nóte:
    “ $1,400. Bedford, April 1, 1871.
    On demand for value received we promise to pay Samuel Hoyt, or order, fourteen hundred dollars with interest at seven per cent per annum.
    M. R. MEAD,
    GEO. W. MEAD,
    Sv/rety.”
    The complaint was, in the ordinary form, against the makers of a promissory note. On the trial the plaintiff produced and proved the note and the payment of certain interest thereon and rested. Whereupon the defendant George W. Mead moved that the complaint be dismissed as to him on the following grounds:
    Eirst. Generally that the complaint does not state facts sufficient to constitute a cause of action as against him, the said George W. Mead.
    Second. That there was no evidence to bind him or make him personally responsible, nor could he be held as surety on the note in suit under the complaint, but that the plaintiff should have declared specifically on said defendant’s contract as surety.
    The motion was denied.

      J. W. Orieff’ for the appellant.
    The objection that several causes of action were improperly united was properly taken by answer, it not appearing upon the face of the complaint. (Code of Procedure,- §§ 144, 147.) Causes of action so united must all belong to one of these classes, * * * must affect all the parties to the action, * * * and must be separately stated. (Code of Procedure, § 167; Barton v. Speis, 5 Hun, 60; Allen v. Bightmere, 20 Johns., 164; Brewster v. Silence, 4 Seld., 207; Allen v. Fosgate, 11 How. Pr., 218; De Bidder y. Schermerhorn, 10 Barb., 638; FLier v. Staples, 51 N. Y., 136; Draper v. Snow, 20 id., 331; Henderson y. Marvin, 31 Barb., 297.) A person who guarantees a note is, in no sense, a party to the note; his contract is special and must be specially declared, on. Accordingly, where it appears upon the face of the instrument that one of the makers signs as surpty, no recovery can be had against him without declaring especially on the contract. (Edwards on Prom. Notes, 219 [ed. of 1857]; Ellis v. Brown, 6 Barb., 282; 5 "Wend., 307; 2 Hill, 190 ; Allen v. Fosgate, 11 How., 218; Butler v. Ba/wson, 1 Denio, 105; 1 Chitty Plead., 339.)

      Glose <& Boiertson, for the respondent.
   Gilbert, J.:

The promissory note in suit is a contract between both defendants and the plaintiff, to pay a definite sum of money. It is the several promise of each defendant, and the joint promise of both. (March v. Ward, Peak, Ca., 130; Clerk v. Blackstock, Holt [N. P.], 474; 1 Pars., N. and B., 251.) They must, therefore, be treated as makers of the note, for to hold otherwise would contradict the note, which is not allowable. If, in fact, George W. Mead is a surety for his co-defendant, he may have certain equitable rights aliunde the contract, but that does not affect his liability to the plaintiff. (Hubbard v. Gurney, 64 N. Y., 457.)

All the makers of a promissory note may be joined in an action upon it, whether it be a joint or several contract. (Code of Civil Procedure, § 454; Code of Proe., § 120 ; Moak’s Yan Santvoord’s PI. [3d ed.], 124.)

No defense having been shown, the court properly directed a verdict for the plaintiff. The judgment should be affirmed.

Present —- Barnard, P. J., and Gilbert, J ; Dykman, J., not sitting.

Judgment affirmed, with costs.


text:
    MARGARET COSGROVE, as Administratrix, etc., of JOHN COSGROVE, Deceased, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Negligence — in order to create liability, must contribute to or ccmse the accident.

    One Barringer was driving, plaintiff’s intestate and himself being in a one-horse wagon, on a highway crossing defendant’s railroad. While at a safe distance therefrom they became aware of the approach of an engine, and Barringer at once endeavored to stop the horse and succeeded in checking him, he started again and was again brought under control, but started a third time and ran into the engine. The bell of the engine was not rung as required by law.
    In an action to recover damages for the killing of plaintiff’s intestate, held, that although negligence on the part of Barringer could not be imputed to the deceased, yet as defendant’s neglect to ring the bell did not contribute to, or cause the accident the plaintiff could not recover.
    Appeal Horn an order denying a motion for a new trial, made upon tbe minutes of tbe justice before whom tbe action was tried.
    Plaintiff’s intestate and one Barringer were riding in a wagon on a highway which crossed defendant’s- railroad. Barringer was driving, and the horse, becoming unmanageable, ran into the locomotive and plaintiff’s intestate was killed. Barringer and plaintiff’s intestate were aware of the approach of the defendant’s train. The evidence, as to whether or not the bell on the engine was rung, was conflicting.

      Fra/nk Loomis, for the appellants.

      H. A. Nelson, for the respondent.
   Gilbert,'J.:

The negligence imputed to the defendant consists of an omission to ring the bell or sound the whistle, as required by statute. (3 Edm. Stat., 613, § 7.) The evidence on this subject was conflicting, that on the part of the defendant being positive, and that on the part of the plaintiff being negative merely. Perhaps, under the circumstances, the defendant’s witnesses deserved the most credence. Still, I think, it was the province of the jury to determine the question of fact which arose upon the testimony on this point. Two of the plaintiff’s witnesses testified, that the bell was not rung, not merely that they did not hear it ring; and it sufficiently appears I think that they were listening, and watching the approach of the engine. A nonsuit, therefore, would have been erroneous. Assuming that the bell was not rung, the case turns upon the question whether the omission to ring it caused the accident. The instructions given to the jury upon this subject were accurate and explicit. They were charged that “ the accident must have been occasioned by the failure to ring the bell in order to make the defendants’ liable.” In McGrath against this defendant (63 N. Y., 528), the rule of law is laid down by the Court of Appeals thus: Under the laws which make it the duty of railroad companies to put signboards and ring the bell and blow the whistle at railroad crossings, an omission of that duty, if the jury found that it contributed in any way to the accident, would make the defendant liable.” In Johnson v. Hudson River Railroad Company (20 N. Y., 73), the same court, Denio, J., delivering the opinion, held that, to carry the case to the jury the evidence on the part of the plaintiff must be such as, if believed, would authorize them to find that the injury was occasioned solely by the negligence of the defendant. In Wilds v. Hudson River Railroad Company (24 N. Y., 430), and in Grippe against this defendant (40 N. Y., 51), the same court expressly sanctioned and approved the following instruction to the jury, viz., that “ if the deceased, knowing the position of the railroad, approached the crossing at such a rate of sjieed that he was unable to stop his horse before getting upon the track, and in consequence thereof the collision occurred, the plaintiff cannot recover.”

The rale of contributive negligence is generally invoked for the determination of cases like this. That rule as stated by text writers generally, and very often when laid down by judges, embraces the element of fault, nonfeasance or misfeasance on the part of the plaintiff. The rule so stated would not be applicable to a case of mere casualty, where the plaintiff’s injury was caused by his inability to control the vehicle by which he was drawn into collision with the locomotive. And yet, I think in such a case, it would be most unjust to charge the defendant with the consequences of the plaintiffs misfortune. No doubt there are cases where, although but for the plaintiff’s own act the injury would not have happened, the defendant has, nevertheless been held liable ; as for example, where one incurred the peril of jumping from a vehicle in order to avoid imminent and greater peril, and where one lost his own life in a brave and meritorious effort to save the life of a little child. (Sh. & Red. on Neg., § 28; Eckert v. Long Island Railroad Co. (43 N. Y., 502), and cases governed by the principle of the “ Donkey case ” (10 M & W. 546), when a person by some negligence of his own has incurred danger by collision which he became unable to avert, and the other party by the use of ordinary care might have averted the danger. (Kenyon v. N. Y. Central and Hudson River Railroad Co., 5 Hun, 479, and cases cited; Radley v. London and N. W. R. Co., L. R., 1 App. Ca., 754.) But such cases are exceptions to the rule, that a party in an action against another, to recover damages for an injury alleged to have been caused by the negligence of the latter, must fail, unless he proves that the negligence alleged caused the injury.

In the case before us the deceased and one Barringer were riding in a wagon drawn by one horse, upon a highway which crossed the railroad. Barringer was driving. It clearly appears that they ■ were apprised of the approach of the engine, while at a safe distance from the railroad, and Barringer immediately made an effort to stop the horse. There can be no doubt that if that effort had been successful, the collision would not have occurred. But Bar-ringer was unable to stop the horse. He checked the speed of the horse for a moment, but the horse started again, and was again brought under partial control. At the moment of the accident, however, he started the third time, and as the occurrence is described by a witness, he plunged ahead until he came in collision with the engine. This testimony was not contradicted or impeached, and it points with conclusive force to the inability of Barringer to control the horse, as the cause of the death of the plaintiff’s intestate. I apprehend that in such a case the law forbids a recovery, although the defendant was negligent, not because Barringer is chargeable with contributive negligence, for his negligence cannot be imputed to tbe deceased (Robinson v. N. Y. Cental R. R. Co., 66 N. Y., 11), but for tbe reason tbat tbe defendant’s negligence did not cause or contribute to tbe injury. It seems to me tbat tbis conclusion is a necessary result of tbe decisions of tbe Court of Appeals wbicb bare been cited, and of general principles governing eases of tbis kind.

It was submitted to tbe jury to decide whether tbe deceased would bave been at the place of collision if the bell bad been rung. Such an inquiry invited mere speculation and conjecture, without any adequate evidence to-support a conclusion one way or tbe other, and has been justly condemned by authority. (Reynolds against this defendant, 58 N. Y., 252.)

For these reasons, we think tbat tbe motion for a new trial should bave been granted.

Tbe order must be reversed, and a new trial granted with costs to abide tbe event.

Rykman, J., concurred, Barnard, P. J., not sitting.

Judgment and order denying new trial reversed and new trial granted, costs to abide event.