author: Learned, P. J.: Boardman, J.: Bocees, J.

text:
    WARREN B. MOREY, Respondent, v. LEWIS W. MEDBURY and ESTELLUS SMITH, Appellants.

      Gontraet of sale — when title passes.

    Plaintiff and defendants having entered into an agreement for the sale of certain hops hy the former to the latter, the same were, in pursuance of the direction of the defendants, delivered to the stationmaster at a designated railroad station, the defendants agreeing to pay for them there. At the time of the delivery the plaintiff instructed the agent to deliver them upon the receipt of the purchase-price thereof. After the hops had heen at the station for a few days they were stolen. Held, that the title to the hops had passed to the defendants, and that they were liable to the plaintiff for the price thereof. (Bocees, J., dissenting.)
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe report off a referee.
    Tbe action was brought to recover tbe price of certain bops, alleged to bave been sold to tbe defendants by tbe.plaintiff.
    Erom tbe report of tbe referee it appeared that on or about tbe 20tb day of September, 18J3, at Georgetown, Madison county, N. Y., tbe plaintiff and defendants entered into an agreement by wbicb tbe plaintiff sold to tbe defendants a quantity of bops and said defendants agreed to take and pay for said hops at the rate of forty-five cents per pound; the hops to be thereafter delivered to the defendants by the plaintiff at such time and place and in such manner, that is, whether loose, in sacks, or pressed, as the said defendants might thereafter designate; that the sum of two dollars was paid and advanced to the plaintiff by the defendants upon said contract, and that at the time of such purchase and since then to the present time, the defendants were and have been copartners together in the pinchase and sale of hops and other merchandise.
    That afterwards, and before any directions had been received by the plaintiff from the defendants as to the said hops being delivered pressed or unpressed, the said hops so purchased by said defendants were pressed by the plaintiff into one bale; that the defendants on being advised of said fact made no objection thereto, and on being requested to designate the time when they would take said hops, requested said plaintiff to take said hops to the depot in Georgetown, on the Syracuse and Chenango Yalley Railroad, and leave said hops in said depot, and also requested said plaintiff to leave with the station agent in charge of said depot, a statement showing the weight of said hops, and the price per pound agreed to be paid for said hops, so that said defendants could receive and pay for said hops at said depot, and not be obliged to go several miles from said depot to the residence of the plaintiff to pay for them. That, in pursuance of such instructions, suggestion or direction of the defendants, the said plaintiff soon thereafter, October 14, 1873, delivered said, hops, so purchased as aforesaid, at the depot designated by said defendants, and in the manner directed by said defendants, and at the time of such delivery the plaintiff left with the station agent in charge of said depot a notice or order, of which the following is a copy:
    “ Georgetown, Oct. 14, 1873.
    “Mr. Beach — Sir: You will please let Sterling Smith have my bale of hops upon the receipt of the money at forty-five cents per pound. The weight of bale is 252 pounds, which, at forty-five cents, amounts to $113.40. There was two dollars paid down, which my boys say Mr. Smith told them I might keep for extra trouble.
    “W. B. MOREY.”

      That the Mr. Beach referred to in. said notice was the station agent in charge of, and had the care and management of said depot where said hops were directed to be • delivered by the defendants, and were delivered by plaintiff, and that by “Sterling Smith” mentioned in said order or notice was intended and meant Estellus Smith, one of the defendants in this action.
    That said notice or order so left with said Beach remained in the possession of said Beach during all the time said hops remained at said depot, and that said instructions or order to him had not since then been modified or changed by the plaintiff.
    That afterwards, and on or about the 17th of November, 1873, the hops so delivered were in the night-time feloniously taken from said depot by some person or persons then and now unknown; that said hops have not since then been found.
    That, in the month of January, 1874, the defendants personally notified said station agent who at the time was in charge of said depot and had been since October 14, 1873, that they were ready to receive said hops and demanded said hops of him.

      A. N. Sheldon, for the appellants.
    Upon the facts found by the referee, the title to the hops at the time, of the theft was in plaintiff and not in the defendants. {Kem v. Twpper, 52 N. Y., 550; Murphy v. Hawthorn, 4 Seld., 291; Field v. Moore, Hill & Denio, 418.) It was a cash sale; a case of payment on delivery, and the law implied a condition that the title should not pass until actual payment, and here the larceny was before payment. (1 Wait L. & P., 487; 8 Barb., 328.) The title would not pass on a delivery at the agreed place of delivery until actual payment. (42 Barb., 177; 13 Johns., 434; Conway v. Bush, 4 Barb., 564; see, also, 25 id.,'474.) At the time of the larceny this bale of hops could have been attached as the property of the plaintiff. (10 Barb., 193.) Such contract remains executory until the price is paid on inspection and acceptance. (Whiteomb v. Hungerford, 42 Barb., 177.) The defendants had the right to weigh the hops at the depot, before payment, and, until weighed, the title did not pass. (Per Jewett, J., in 4 Seld. R., 294; 2 Hill, 137.)

      L. B. Kern, for the respondent.
    When the terms of sale are agreed on, and the bargain is struck, and every thing that the seller has to do with the goods is complete, the contract of sale becomes absolute as between the parties, without actual payment or delivery, and the property and the risk of accident to the goods vest in the buyer. (Hayden v. Demets, 53 N. Y., 431; Kent’s Com. [Com-stock’s ed., side paging], 492; 44 N. Y., 72; 5 Denio, 379; 22 N. Y., 368; 4 Hun, 565; 3 Keyes, 597.) The time of payment, in the absence of any agreement, was on the delivery of the hops. (16 N. Y., 451, 454.) The delivery vested the title to the hops in defendants; nothing remained to be done by plaintiff. (5 Denio, 382; 53 N. Y., 431; 15 Wend., 493, 497.)
   Learned, P. J.:

By the contract of sale in this case, the title passed to the purchaser, subject, however, to the vendor’s right of possession until payment. (2 Kent Com., 492; Higgins v. Murray, 11 S. C. N. Y. [4 Hun], 565, Olyphant v. Baker, 5 Den., 379 Hayden v. Demets, 53 N. Y., 431, Terry v. Wheeler, 25 N. Y., 520, at 525; Burrows v. Whitaker, 15 S. C. N. Y. [8 Hun], 260.)

The decisions of Conway v. Bush (4 Barb., 564); Fleeman v. McKean (25 id., 474); Smith v. Lynes (5 N. Y., 41) will be found to decide the right of the vendor to possession, as against the vendee, until payment; not the question of title, in case of loss.

Suppose, as suggested in the case of Terry v. Wheeler, the property had been such as might have increased — a flock of sheep — and an increase had taken place, whose would have been the increase ? The owners of the flock, of course. And who would have been the owners ? The purchasers.

The judgment should be affirmed, with costs.

Boardman, J.:

I think this case was properly decided by the referee. The evidence authorized him to find that the property was delivered at the depot at the risk of the defendants, and to be paid for before being taken away. The contract was therefore fully performed by the plaintiff, and he was entitled to sue for and recover his pay. The defendants could not have resisted such claim. They were bound to pay, and the retention of the possession of the station agent for plaintiff, and by his direction, until the price was paid, was in accordance with the contract. It was the possession, and not the title, which remained in plaintiff. Such possession was a security for the price. What more could the plaintiff have done in performance of his contract ? What additional tender could he have made of the hops ? In what respect was the plaintiff in fault, or for what failure on Ms part should he be denied the pay for his hops ? The contract was valid and binding upon the defendants. Why may they refuse to pay in accordance with the terms of their contract, after the plaintiff has fully performed ?

I concur with brother Learned in affirming the judgment, with costs.

Bocees, J.

(dissenting) :

There was no delivery of the hops at the time of the contract of sale. The contrary of this is not pretended, as it could not be maintained on the evidence submitted. The question then is, whether the delivery afterwards, at the railroad station, was such a delivery as vested the title to the property in the defendants. Very manifestly it was not. The plaintiff left the hops with the station agent as his own property, under written directions to deliver them on payment of the pui’chase-price. The direction to the station agent was to deliver “m/y bale of hops upon the receipt of the money atfortyfoe cents per pound” A delivery of the property to the defendants by the station agent without payment would have been a wrongful delivery of the plaintiff’s property ; until payment the title remained in the latter. It is perfectly manifest that the plaintiff did not intend to part with his title until payment was made of the purchase-price. He expressly required payment as a condition of delivery. Hntil compliance with this condition the title remained in the vendor. These conclusions are fully sustained by the decision in Conway v. Bush (4 Barb., 564). See also Fleeman v. McKean(25 Barb., 474), and Smith v. Lynes (5 N. Y., 41). There are many other cases to the same effect. (See Knight v. Mann, 118 Mass., 146; 120 id., 220, and eases cited ; and Safford v. McDonough, id., 290.)

The title to the hops, therefore, remained in the plaintiff at the time they were stolen from the railroad station, and it follows that the loss occasioned, by the larceny must fall on the party then having the legal title. (Kein v. Tupper, 52 N. Y., 550.) We are cited to several cases holding that, under a contract of sale of goods, where nothing remains to be done by the seller before making delivery, the right of property passes, although the price be not paid nor the thing delivered. (Olyphant v. Baker, 5 Denio, 379; Hyde v. Lathrop, 3 Keyes, 597; Hayden v. Demets, 53 N. Y., 426, 431.) But these decisions have no application to a case like this in hand, where payment was to accompany delivery. The judgment should be reversed and new trial granted, costs to abide the event, and reference discharged.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Learned, P. J. : Bockes, J.

license: Public Domain

text:
    THE PEOPLE ex rel. HENRY L. HERMANCE and WILLIAM W. HERMANCE, Appellants, v. THE BOARD OF SUPERVISORS OF ULSTER COUNTY, Respondents.

      Chap. 695 of 1871 — in what cases County Court has power to act under.

    The provision of chapter 695 of 1871, authorizing the County Court, upon application of the party aggrieved, to make an order requiring the hoard of supervisors to refund to such person the amount collected from him, of any tax illegally or improperly assessed or levied, only applies to cases in which the assessors had no power to make the assessment, and not to cases in which they had power to act hut erred in its exercise. (Bookes, J., dissenting.)

      Matter of Mew York Protectory (8 Hun, 91) and Hudson City 8amnys Bcmk (5 Hun, 612) followed; Pells’ Case (MS., Commission of Appeals) distinguished
    Appeal from an order of the County Court of Ulster county, denying an application, under chapter 695 of 1871, for an order requiring the board of supervisors of Ulster county to refund a tax alleged to have been illegally assessed and collected.
    A petition was presented to the court, upon due notice to the board of supervisors, alleging that the petitioners had been improperly and illegally assessed for $10,000 personal property, which they did not own or possess, and had been compelled to pay thereon a tax of $600.40.
    The facts were not contradicted, bnt the application was opposed by the attorney of the board, and the application was denied On the sole ground that the court had no jurisdiction, under the construction given to the statute by the Supreme Court.

      Schoowmaker c& Pinson, for the appellants.

      F. L. Westbrook, for the respondent.
   Learned, P. J. :

A distinction has been laid down in the Court of Appeals between an erroneous and an illegal assessment. (Bank of Chemung v. City of Elmira, 53 N. Y., 53.) The former, where the assessors have the power to act, but err in its exercise ; the latter, where they have no power.

In the Matter of New York Catholic Protectory (15, S. C. N. Y. [8 Hun], 91), holds that, in the latter case, the statute under which the present application is made applies.

In the Matter of Hudson City Savings Institution (12 S. C. N. Y. [5 Hun], 612), holds that, in the former case, the statute does not apply.

The Pells Case, in the Commission of Appeals, was the case of assessment of United States bonds. It was, therefore, an illegal, not an erroneous assessment. And the decision in that case determines nothing as to the power of the county judge to review on the ground of error, an assessment made by the proper officers.

The affidavit of the applicants in this present case shows only that they were assessed for a greater amount than was just, or, rather, .that they were assessed for personal property when they had none for which they were liable. This is substantially an over-valuation ; an error in judgment. It is not, as it was in the case of the Bank of Chemung v. Elmira, an assessment illegal, and for which the assessors had no jurisdiction.

To give the other construction to the statute (Laws 1871, chapter 695), which is urged by the applicants, would be to make the county judge a court of x’eview of evexy alleged ovex’-valuation of assessors. This cannot be the reasonable construction of the statute, especially as it speaks only of “illegal and improper” taxes.

As the decision of this court, in the case above cited, is not reversed by the decision in the Pells Case, it should be followed.

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

Bockes, J.

(dissenting):

The decision in the Pells Case by the Commission of Appeals seems entirely conclusive of the case now before us. • There the relator was taxed on an assessment for $6,000, personal property, for each of the years 1866, 1867 and 1868; whereas, as was alleged, she should have been taxed on $1,000 only for each of those years. Thus it was a case simply of over-valuation of the relator’s personal property. It was a taxation on an assessment of $6,000, instead of $1,000, for three years. There, like the case in hand, the assessors had jmisdiction of the person and of the subject-matter. The relator was a resident of the town, and liable to taxation therein, and she was possessed, as was conceded, of $1,000, personal property, liable to assessment. It was, therefore, a case of erroneous or over-taxation, neither more nor less. The Commission of Appeals held that the relator was entitled to relief under the laws of 1871, reversing the decision to the contrary, reported in 63 Barbour, 83. (People ex rel. Pitts [Pells] v. Supervisors of Ulster). Thus, this case holds that a party is entitled to relief under the laws of 1871, against an erroneous assessment. Indeed, it seems that this should be so, for in ease of an i/malAd assessment the party has a perfect remedy without any aid from that. act. The case in hand, in principle and on the facts, is precisely like the one decided in the Commission of Appeals.

It is true, the question discussed in the Pells Case, by the Supreme Court, was whether the law of 1871 was retrospective in its effect. This question was re-examined on appeal in the Commission of Appeals, and that court, after determining that the act was retroactive, went further and decided the case on the merits, holding that the'relator, on the facts there disclosed, was entitled to the relief demanded. The case was fully considered on the question of the relator’s right to relief. I see nothing obiter in that case.

The opinion of Commissioner Reynolds seems to cover the entire ground of this case in its reasoning and conclusion, and necessarily so. Of course we are bound by this decision.

The order appealed from must be reversed, with $10 costs and disbursements on appeal, and the case should be remitted to the County Court of Ulster county, to the end that such court may proceed in the matter and make the order authorized and required by the act of 1871.

Present — Learned, P. J., Bockes and Boardman, JJ.

Order affirmed, with ten dollars costs and printing.


author: Learned, P. J.:

text:
    LEWIS HEAD, Respondent, v. EDWARD H. TEETER, as Executor, and SARAH TEETER, as Executrix, etc., of SLY TEETER, Deceased, Appellants.
    Boidence— Oode, § 399.
    Although, under section 399 of the Oode, a party to an action may testify as to a conversation between the deceased and a third person which he has overheard, so long as such testimony is limited to what was neither a personal transaction nor communication between the witness and the deceased, yet this rule does not prevail when the third person is an agent for, and is acting in the interest of the witness.
    Appeal from a judgment in favor of'the plaintiff, entered upon the report of a referee.
    On the 19th day of April, 1873, Lewis Head was the owner of 109 acres of land in the town of Danby, Tompkins county, and Francis N-ourse owned a mortgage of $1,180 covering the whole premises. On the 19th day of April, 1873, plaintiff sold to Sly Teeter fifty acres off from said 109 acres, and conveyed the same to him by warranty deed, which contained the following clause: “ The party of the second part takes the above described premises subject to a mortgage of $1,180, said mortgage given to George H. Fortner on the 21st day of February, 1867, by Lewis Head.” This mortgage was the one owned by Francis Nourse and covered the 109 acres, of which the fifty acres sold to Sly Teeter formed a portion. Before the deed of tbe said fifty acres was executed, it was agreed by and between the parties thereto that tbe consideration should be paid as follows : By tbe grantee giving bis notes for $400, by discharging a claim held by him against Thomas Head for $170, and by paying tbe mortgage for $1,180 on tbe 109 acres. This agreement was by parol and was not contained in tbe deed. Afterwards, and in or about tbe month of January, 1875, Sly Teeter died. On tbe 24th day of March, 1875, the. whole premises were sold on said mortgage. Tbe fifty acres deeded to Sly Teeter were, by a decree of tbe court, sold first and separate from tbe fifty-nine acres, and brought tbe sum of $700. At tbe time of said sale, viz., March 24, 1875, there was due on said mortgage $1,180 of principal, and interest thereon from April 1, 1873, being $163.15, and making in all then due for principal and interest $1,343.15.
    Tbe referee found that Sly Teeter’s executors should pay the whole of the $1,180, and interest from April 1, 1873, and gave judgment accordingly.

      S. JD. Holliday, for the appellants.

      Wm. H. Hoble, for the respondent.
   Learned, P. J.:

It was substantially conceded on this appeal that the $700 for which the fifty acres were sold on the foreclosure, should have been credited upon this claim, and the recovery should have been rendered accordingly.

But a very important question arises on the matter of evidence. Lewis Head, the plaintiff, sold and conveyed to Sly Teeter, the defendants’ testator, fifty acres. The claim in this action is that, as a consideration therefor, Sly Teeter orally agreed with Lewis Head to pay a certain mortgage, which covered these fifty acres and fifty-nine acres more. This action is brought on that agreement. To prove the agreement Lewis Head was called as a witness in his own behalf. He testified (under objection and exception) that there was a conversation in his presence between his father, Thomas Head, and Sly Teeter, now deceased. That Thomas Head said: “ Mr. Teeter takes the fifty acres, and pays the mortgage of $1,180 and interest after April first, until that time you are to pay the interest, and pays the balance by notes. That Thomas Head turned to Teeter and asked him if that was right, and he nodded his head, assenting; that the talk seemed to be addressed to the witness; that Teeter said yes, and nodded his head.”

This testimony is claimed to have been inadmissible under section 399 of the Code.

It has been decided that a party may testify to a conversation which he overheard between the deceased and a third person, so long as it is limited to what was neither a personal transaction or communication between the witness and the deceased. (Cary v. White, 59 N. Y., 336.) But, in the present ease, Thomas Head was the agent of the plaintiff. In the matter of this conversation he was acting for the plaintiff.

He addressed the plaintiff, stated the alleged contract, and Teeter assented. This was a transaction between Teeter and the plaintiff. It was the same as if either Teeter or the plaintiff had stated the terms of the bargain, and the other party had assented. In the eases relied upon by the plaintiff the transaction has been between the deceased and some third person, while the party testifying has been a mere hearer of the conversation, and not a party to any transaction thereby shown.

But the present case is very similar to that of Brague v. Lord et al., in the Court of Appeals (15 Alb. L. J., 66). The testimony was inadmissible. There must, therefore, be a new trial. I have not thought it necessary to consider the question whether, as the plaintiff has sold the remaining fifty-nine acres, he can recover at all. No opinion is intimated on that question. Judgment reversed; new trial ordered; reference discharged; costs to abide the event

Present — Learned, P. J., Bookes and Boardman, JJ.

Judgment reversed; new trial granted; referee discharged, and costs to abide event.


author: Leaened, P. J.:

text:
    THE PEOPLE ex rel. MATTHEW VAN KEUREN, Respondent, v. THE BOARD OF TOWN AUDITORS OF THE TOWN OF ESOPUS, Appellants.

      Commissioner of highways — not agent of town.

    The relator, an overseer of highways, under the directions of the commissioner of highways of the town of Esopus, removed obstructions from what was claimed to be a highway. Subsequently, one Cole brought a suit against him for trespass, on the ground that the road was not a public highway but belonged to said Cole, and recovered a judgment for twenty-five dollars. From this judgment relator appealed to the General Term and Court of Appeals, where the judgment was affirmed. No notice of the action or the appeals was given to the town.
    Subsequently, this application was made for a mandamus to compel the town to • pay the relator $2,711.47, for the amount of the judgment, and the costs and expenses of the action. Held, that he was not entitled to a mandamus, (1) because he had failed to give notice to the town of the action or the appeals, and thereby prevented it from tailing charge thereof; and (2) because the commissioner of highways was not the agent of the town, and it was not liable for his acts.
    Appeal from an order made at Special Term granting a writ of peremptory mcmdamus, directing tbe defendant to audit and allow tbe bill of tbe relator.

      Lcnmsbery <& OMlds, for tbe appellants. '' '

      8. L. Btebbms and A. Schoonmaker, Jr., for tbe respondent.
   Leaened, P. J.:

It is not necessary, in tbe view I take, to examine bow far tbe acts of tbe commissioner of highways bound tbe town in respect to tbe matters out of which tbe present claim arose. Assume for tbe present, that be was tbe agent of tbe town, and that they would be liable, as bis principal, for what be did.

Tbe facts, then, are briefly that tbe commissioner of highways, issued bis road warrant to Van Keuren, overseer of highways, for tbe working of a certain road district in tbe town. He also orally directed him to do certain wort of cutting boughs from apple trees and removing a stone. These acts Van Keuren did. It proved, however, that in doing these acts, Van Keuren was guilty of a trespass on the property of Martin Cole, for the reason that the place where this work was done was not a public highway. Cole sued Yan Keuren for the trespass in a Justice’s Court. The defendant set up, among other things, title; the action was discontinued, and a new action was commenced in this court. The defendant set up a denial, title in himself, a right of way, and his authority as overseer to remove obstructions from the highway. On the first trial the jury disagreed.

On the second they rendered a verdict for twenty-five dollars damages. Judgment was affirmed at the General Term and in the Court of Appeals. Yan Keuren now presents a bill to the town auditors of $2,711.47. This is for the judgments, damages and costs, for his expenses in obtaining witnesses, for expenses and services of his attorneys and counsel and other expenses.

Now, it will be seen that a very small part of this bill, only twenty-five dollars, is the compensation recovered against Yan Keuren for the wrongful act, which it is said that he was ordered to do by the agent of the town. All the rest of his large expense has been occasioned by his defending, and his persisting in defending, the action brought against him for the trespass. I do not see that he was under any obligation to defend that action.

If, in committing the trespass, he was the agent of the town, and if the town was under an implied obligation to indemnify him, then he should have given the town the option either of defending the action or of leaving it undefended. The town, if it had had the opportunity, might have decided as the jury did, that the place where the acts were done was not a public highway. And the town might, therefore, in the Justice’s Court, have interposed no defense of title, but might have questioned the amount of damages only. But Yan Keuren, so far as appears, gave the town no such opportunity. He did not, so far as appears, notify the commissioner of highways, or any town officer, of this litigation in which he had .become involved, nor did he offer to allow the commissioner or the town to defend on his behalf. *

In the case of Howe v. Buffalo and Erie Railroad (37 N. Y., 297), relied upon by the learned justice who granted the peremptory mandamus, the conductor of the defendants, when sued for an act claimed to be done by their authority, immediately notified them, and they employed the attorney and counsel who defended it. They were held liable to the conductor to indemnify him against the recovery.

If Yan Keuxen had claimed that, as the agent of the town, he was entitled to be indemnified by them, it could only be for the acts which the town directed him to do. It never directed him to defend this suit, or to appeal it, and to accumulate this large bill of expense. Even in respect to the damages recovered, the town ought to have had an opportunity to be heard as to their amount. While, in respect to the costs and expenses, the town has not in any way authorized them. And certainly to one who has read the evidence taken on the -trial and now again presented, it might seem doubtful whether the town officers would ever have permitted this litigation if they had been allowed to control it. There are circumstances to which it is not necessary to refer, shown in the evidence, which give the controversy the appearance of a personal matter between Yan Keuren and Cole, where the forms of law were really used for Yan Keuren’s benefit.

But, however that may be, it is enough that the town did not carry on the litigation, and was not allowed to control, or stop, or discontinue it. The town, therefore, should not be made to pay.

The relator cites the case of Coventry v. Barton (17 Johns., 142). The plaintiff in that case, working under the direction of the overseer of highways, had removed an alleged obstruction, upon an agreement by the defendants to indemnify him for the act. The plaintiff had been sued and judgment had been recovered against him. The defendant had been present at the trial. He was held liable to the plaintiff on his promise of indemnity. The extent of his liability was not decided. The relator also cites Powell v. Newburgh (19 Johns., 284). In that case the plaintiff had been sued for an official act. He had succeeded in the action, and his act had therefore been decided to be lawful. It was held that he was an agent of the defendant, and was entitled to recover the expenses of the successful litigation. The recovery was allowed on the ground of such agency, and of the expenditure by the plaintiff of money in the business of such agency. And it appeared that the defendants had notice of the suit against the plaintiff.

That case cannot in any respect be analogous to the present, unless it be shown that a commissioner of highways is the agent of the town. That he is not, is well settled, I think, by several decisions. (Lorillarrd v. Town of Monroe, 11 N. Y., 392 ; Morey v. Town of Newfane, 8 Barb., 645: Galen v. Clyde & Rose R. R. Co., 27 id., 543, at 551; Fishkill v. Fishkill & Beekman R. R. Co., 22 id., 634; Mather v. Crawford, 36 id., 564; and the same is implied in Hover v. Barkhoof, 44 N. Y., 113.)

In the case of Lamont v. Smith, commissioner (not -reported), it was held in the third department, that, in. an action against a commissioner of highways for negligence in not keeping a bridge in order, the successor in office could not be substituted. Thus it was held that the liability, if any, was personal, and not against the town. There are, then, these two reasons why the relator should not compel the town to pay these expenses. The one is, that he carried on this litigation without giving notice to the town, and without permitting them to control it. The other is, that the commissioner of highways, by whose direction he acted, is not an agent of the town, and therefore the town is not responsible for his acts.

The order should be reversed, with ten dollars costs and printing.

Present — Learned, P. J., Bookes and Boardman, JJ.

Order reversed with ten dollars costs and printing, and motion for mandamms denied, with ten dollars costs.


text:
    EDWARD VAN SLYCK and EDWARD W. FOOTE, Respondents, v. FRANCIS B. NEWTON, Appellant.

      Mortgage for existing debt — mortgagee not bona fide pwrehas&r — Judgment reeom'ed against one as assignee — whm binding on him indimdnially — how far binding on his co-mortgagee.

    Where a chattel mortgage is given to secure an existing indebtedness, the mortgagee is not entitled to the rights of a bona fide purchaser for a valuable consideration, as against one from whom the mortgagor has obtained the property by fraud.
    On January 4,1876, Foote and Van Slyck were in possession of certain personal property, claiming to be entitled thereto by virtue of a chattel mortgage given by one Stearns to secure them for indorsements. On the twenty-seventh of January, Stearns made a general assignment to Van Slyck, who accepted the same. On the twenty-eighth of January, an action of replevin was commenced hy one Barnard against Stearns and Yan Slyck, as assignee, to recover the property, on the ground that Stearns had obtained the same from him by fraud. The property was seized by the sheriff, and a judgment having been recovered by Barnard, the same was delivered to him. In this action, brought by Foote and Yan Slyck against the sheriff, held, (1) that the plaintiffs were not Iona fide purchasers for a valuable consideration; (2) that as against Yan Slyck the judgment recovered in the first action was conclusive, and as against Foote, competent evidence to prove that the property belonged to Barnard at the time of the seizure.
    Appeal from a judgment in favor of the plaintiffs 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.
    One Stearns, being in possession of a stock of goods in a store, mortgaged them, December 18,1875, to Campbell, who took immediate possession. On the twentieth of December, he executed another mortgage to the plaintiffs on the same property, to secure them as indorsers, and Campbell agreed to remain in possession as their agent. On the fourth of January following, possession of the property was surrendered to the plaintiffs by Stearns. This, however, seems, in some way, to have been subject to Campbell’s claim. For one of the plaintiffs testified that Campbell’s claim was paid up finally, February twelfth. On the 27th of January, 1876, Stearns made, a general assignment to Yan Slyck, one of the plaintiffs, for the benefit of creditors, which assignment Yan Slyck accepted.
    On the 28th of January, 1876, Oharles E. Barnard and others commenced an action of claim and delivery against Stearns and Yan Slyck, as assignee. In this, the plaintiffs claimed that certain goods were obtained from them by Stearns, fraudulently, when he was insolvent. In that action Newton, the present defendant, a deputy sheriff, took the goods in question on the twenty-eighth day of January, under the usual direction of the plaintiffs’ attorney. The defendants in that action, both Stearns and Yan Slyck, appeared and answered and then withdrew the answer they had put in, and judgment was perfected for the plaintiffs, Barnards, therein against the defendants.
    Yan Slyck and Foote, the present plaintiffs, now sue the deputy sheriff, Newton, for the taking of those goods, claiming them under tbeir mortgage, and averring tbat tbe title and possession was in tbem by virtue of said mortgage. Tbe court beld tbat there was no question for tbe jury but tbe value of tbe property, and tbat tbe plamtiffs were entitled to recover.

      John W. Boyle, for tbe appellant.

      A. W. Sheldon, for tbe respondents.
   Learned, P. J.:

TJpon tbe pleadings tbe title and possession of tbe plaintiffs to tbe property are in issue. If, as against the plaintiffs, the Barnards bad title, and if tbe defendant took tbe property by tbeir authority, be is entitled to succeed in tbe action.

Tbe plaintiffs’ mortgage was given to secure a prior liability. It has been decided tbat such mortgagees are not l)ona fide purchasers for a valuable consideration, as against one from whom tbeir mortgagor obtained tbe property .by fraud. (Woodburn v. Chamberlin, 17 Barb., 446.) In tbe case of Malcom v. Loveridge (13 Barb., 372), and similar cases cited by tbe plaintiffs, tbe mortgagee parted with value on tbe credit of tbe property. If it be proved then, in this action, tbat Stearns obtained tbe property by fraud from tbe Barnards, so tbat they could have recovered it from Stearns, and if Newton took it as tbeir agent, then tbe plaintiffs could not recover against Newton, any more than Stearns could have recovered against him.

But, perhaps, it is not necessary to rely upon tbat principle to dispose of this case. Tbe question seems to be as to tbe effect of tbe judgment recovered in tbe case of tbe Barnards against Stearns and Yan Slyck, as evidence on tbe present trial of tbe title of tbe Barnards. Tbe complaint, in tbat action, averred tbe ownership of tbe property by tbe plaintiffs tbei’ein, and tbe possession and wrongful detention by tbe defendants. Tbe judgment, after proof taken, was tbat tbe. plaintiffs were tbe owners of tbe property, and entitled to retain it and to recover damages for tbe detention and costs. Tbe right of tbe plaintiffs, thus adjudicated, must have referred to January 28, 18Y6. Yan Slyck was a party to tbat action, and is bound by tbe result. As against him, it is adjudicated tbat on tbe 28th of January, 18Y6, tbe Barnards owned this property and tbat be was wrongfully detaining it. If the rights which he now seeks to set up in this action were valid, as against the Barnards, they would have afforded a successful defense to that action. For if he, either alone or jointly with another, owned or was entitled to the possession of the property, that fact would, if shown, have defeated the Barnard action. That he was described in the title of the complaint as assignee, did not prevent him from showing any fact which would entitle him to possession, or would prove ownership in him. Yan Slyck, therefore, cannot recover against Newton for taking, as the Barnards’ agent, property which, as between him and them, has been adjudged to be theirs.

The alleged title and ownership of Yan Slyck and Foote were joint. They were co-mortgagees, and they aver that as such they were in possession at the time of the alleged taking. The possession which Yan Slyck had was, as these plaintiffs aver, their possession.

Whether or not the Barnard judgment was conclusive, against Foote, it was evidence against him (G-reenlf. Ev., § 171, et seg.), and the evidence was not contradicted; that is, there was nothing shown to contradict the title of the Barnards.

When Yan Slyck was sued by the Barnards, if he was not solely in possession, and if he and Foote were in possession jointly, I do not see why Yan Slyck might not have averred a defect of parties defendant in his answer. (Wooster v. Chamberlain, 28 Barb., 602.) Thus Foote might have been brought in as defendant.

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

Present — Learned, P. J., Bockes and Boardman, JJ.

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


text:
    EMIL KOENIG, Plaintiff, v. THE GLOBE MUTUAL LIFE INSURANCE COMPANY, Defendant.

      Insa/nity — Bmdeme of experts — what questions may he ashed.

    In this action, brought upon a policy of life insurance, the principal question was whether or not the assured was sane at the time of her death. Upon the trial, her family physician was asked, and against the defendant’s objection and exception, allowed to answer the following questions: “From your experience and reading, and from your acquaintance with the mental condition of the deceased, what effect, if any, would you say this disease (melancholia) would have upon her as to her power to control her actions or to resist any impulse with which she might he seized?” “In this case how do you think it was?” Held, that the questions were properly admitted.

      (VanZcMidtY. Mutual Benefit Life Insurance Company {55 N. Y., 169) distinguished.
    Motion for a new trial on exceptions ordered to be beard in tbe first instance at tbe General Term, after a verdict in favor of tbe plaintiff.
    Tbis action was brought upon a pohcy of insurance, issued for tbe benefit of tbe plaintiff upon tbe life of bis wife, by tbe Merchants’ Life Insurance Company of New York, tbe liability of that company having been subsequently assumed by tbe defendant.
    Tbe policy contained a clause avoiding it, in case tbe insured died “ by her own band.” Tbe wife was found in tbe garret of her bouse banging dead. Tbe plaintiff claimed that she was insane at tbe time.

      K W. Rosmdale, for tbe plaintiff.

      George W. Miller, for tbe defendant.
   Learned, P. J.:

Tbe only point argued in tbis case is, whether tbe following questions were admissible:

Q. From your experience and reading, and from your acquaintance with tbe mental condition of tbe deceased, what effect, if any, would you say tbis disease would have upon her as to her power to control her actions, or to resist any impulse with which she might be seized ? A. I think that tbe impulses and tbe will, in tbe majority of cases, become uncontrollable, and is not under tbeir control. They are led away by impulses. They will attempt any method to take their life.

Q. In this case ho\v do you think it was ? A. I think her impulse was uncontrollable ; entirely so.”

The objection taken to these questions were that they were incompetent; that it was a question for the jury.

The appellant relies on the case of Van Zandt v. Mutual Benefit Life Insurance Company (55 N. Y., 169). In that case the following question was put:

“Assuming that a person had that form of insanity which you denominate melancholia, and had committed suicide, you would attribute that suicide to the disease % A. Yes, I should attribute it as the result of insanity.”

Of this question the court said that it called not for any fact or information peculiarly within the knowledge of an expert * * but for the inference of the witness from a supposed fact, which inference the jury were capable of drawing, and which it was their province' to draw.

It seems to me that the questions in the present case are different. In the first place they are not based on any “ supposed fact,” but on the actual knowledge of the witness, who was the family physician of the deceased. Next, these questions did call for a fact peculiarly within the knowledge of an expert; that is, the effect of a certain disease on the power of controlling actions and resisting impulses. The inquiries were as to the effect of the disease on the power of the will. This was a matter of physical science. From the mere fact that the deceased was suffering under a certain disease, the jury could not know or infer that such disease had any effect whatever on the power to control actions. Certainly many severe diseases do not affect that power. It was, therefore, proper to prove what the effect of this disease was in that respect.

The objectionable question in Van Zandt v. Mutual Benefit (ut supra) did not ask for the fact of the usual effect of disease on the will, or for its effect on the will of the deceased. It asked merely for an inference; an inference whether the suicide was caused by insanity; in substance, what the witness would have decided if he had been a juryman.

The answer to that question involved a consideration not merely of the mental condition of the deceased, but of all the circumstances of the act of suicide. From those circumstances the jury might judge that the act was one of deliberation, unaffected by any impairment of mental power, or that it was an act of impulse.

In the present case the jury were left to decide on that question from all the facts, including the circumstances as well as the mental condition. It is possible that the latter part of the answer to the first question was improper. It was not strictly responsive. But no motion was made to strike this out. We must judge of the propriety of the question by the questions themselves, not by the answers.

Judgment should be given for the plaintiff on the verdict, and a new trial denied, with costs.

Present — Learned, P. J., Bockes and Boardman, JJ.

Order affirmed with costs, and judgment ordered on verdict.


text:
    ELIJAH M. HEWITT, Plaintiff, v. WILLARD D. WARREN, Defendant.

      Vra/udulemt representation — liability of inf ant for — the action must be purely for tort.

    This action was brought to recover damages for false and fraudulent representations made by the defendant upon the sale of a horse. The complaint alleged that the false and fraudulent representations were made in a warranty contained in the contract of sale, with intent to deceive and defraud the plaintiff. The defense was infancy. Held, that as the plaintiff had not disaffirmed the contract, or returned or offered to return the horse, that he was not entitled to recover.
    The proper remedy in such a case would be to return or to offer to return the 'horse, and thus put the infant in the position of a mere wrong-doer’, unjustly keeping what he had fraudulently obtained.
    Where the substantive ground of the action is contract, as well as where the contract is stated as inducement to an alleged tort, infancy is a defense.
    . Motion for a new trial on exceptions ordered to be beard in tbe first instance at tbe Greneral Term, after a verdict in favor of tbe plaintiff.

      The action was brought to recover damages for the breach of a warranty upon the sale of a horse, the warranty being alleged to have been false and fraudulent. The complaint stated, among other things: “And plaintiff further alleges that before he so purchased said mare, and during the negotiations for such sale and purchase, said defendant falsely and fraudulently, and with the intention to cheat, deceive and defraud this plaintiff, warranted and represented to said plaintiff that said mare was all right, in every way, both in single and double; whereas, in truth and in fact, said mare was vicious, ugly and balky, and was worth $150 less by reason thereof; and plaintiff further says that the aforesaid representations so made by defendant were wholly false and untrue, and were well known so to he by defendant at the time of making the same.
    “ And plaintiff further says that he purchased said mare relying upon said representations and believing them to be true; that by reason of said false and fraudulent representations this plaintiff became and was and is damaged in the sum of $150.”
    The defense was infancy and a denial of the allegations of the complaint except as to the fact of sale.

      M. J. Simderkm, for the plaintiff.
    The action is not to enforce a fraudulent warranty or contract of warranty. The contract has been fully performed, and this action is to recover damages resulting from the false and fraudulent representations made by the defendant to .induce the plaintiff to make the contract. The defendant being an infant is hable for his tortious and fraudulent aets as much as though he were an adult. (GonkUn v. Thompson, 29 Barb., 218; Robbins v. Mov/nt, 33 How., 21; Fckstein v. Fra/nk, 1 Daly, 331; Wallace <& Christopher v. Morss, 5 Hill, 391; Bullock v. Babcock, 3 Wend., 391; Campbell v. Stakes, 2 id., 137; Stuckvell v. Shqfter, 51 N. Y., 219.)

      John J. Van Alim, for the defendant.
    The defendant being an infant, and this being an action on contract for the sale of a horse, the plaintiff cannot recover, the contract not being binding upon him. Although the complaint alleges that the defendant warranted the mare to be all right, that said warranty was false, and was known to be so by the defendant; yet the action is upon contract. The gramamm of the action is the contract, which cannot be made binding upon the infant by alleging deceit. (Tyler on Infancy and Coverture, §§ 123, 124; Orem v. Qreembaok, 2 Marsh., 485; 4 Eng. Com. Law R., 375; Moore v. Eastman, 1 Hun, 578 ; Jemwngs v. Bundall, 8 T. R., 335; Imerpool, esto., Mss. v. FaJrhwst, 9 Exch., 422 ; Wright v. Ieona/rd, 11 C. B. [N. S.), 258; Burnha/rd v. Haggis, 14 id., 54; Prescott v. Dudley, 32 N. H, 101; 2 Kent’s Com., 241, and note; Morrill v. Aden, 19 Verm. R., 505; Johnson v. Pie, 1 Lev., 169 ; Yasse v. Smith, 6 Cranch, 226; West v. Moore, 14 Verm. R., 447; Wilt v. Welsh, 6 Watts’ R., 1; Brown v. Dun-ham, 1 Root’s R., 273 ; Brown v. Me Cune, 5 Sandf., 224; Stud-well v. Shafter, 54 N. V., 249; Qreene v. Oreen, 7 Hun, 492; People v. Kendall, 25 Wend., 399 ; Campbell v. Stakes, 2 id., 137; Campbell v. Perkins, 4 Seld. R., 440, 441; Bu/rley v. Bussell, 10 N. H., 484; Merriam v. Gwmingham, 11 Cush., 40 ; Ba/rtlett v. Wells, 1 B. & S. B. R., 836 ; E. C. L. R., 101; De Boos v. Foster, 12 C. B. [N. S.], 272; E. C. L. R., 104; Manley v. Scott, 1 Sid. R., 129 ; Penrose v. Cu/rren, 3 Rawl. R., 351.)
   Learned, P. J.:

This action is brought to recover damages for false and fraudulent representations made on the sale of a mare. The defense is, first, a denial of the false representations, and, secondly, the infancy of the defendant.

The complaint uses the language “ warranted and represented,” but it distinctly charges falsehood and fraud, and intention to defraud, in this warranty and representation. It is, then, an action to recover damages for the alleged fraud perpetrated to induce the plaintiff to enter into a contract.

There is no doubt that an infant is liable for his torts not connected with contracts, and that he is not liable for mere contracts unconnected with torts. But there is a class of cases where some tortious act enters into, or is connected with, the making of the contract. In respect to these, the line of decisions is not at the first glance apparently uniform.

Of these cases the following are cited by the plaintiff to sustain his view:

Robbins v. Mount (33 How., 24). In that case the defendants were not held hable, and nothing was decided as to infants. The injury was alleged to have arisen from some negligence or carelessness in a building, by which water ran upon rooms occupied by the plaintiff.

In Eckstein v. Frank (1 Daly, 334), it was held that where’ an infant obtains property upon representations that he was of full age, he is hable, in an action of tort, brought either to recover the property bach or to recover damages.

In Wallace v. Morss (5 Hill, 391), an infant was held hable for obtaining goods fraudulently with intent not to pay.

Campbell v. Stakes (2 Wend., 137), was an action for misusing a horse hired by the defendant, an infant.

Studwell v. Shapter (54 N. Y., 249), held that in an action for the price of goods sold and delivered to an infant he could not be made hable by reason of fraudulent representations as to his credit.

Bullock v. Babcock (3 Wend., 391) and Conklin v. Thompson (29 Barb., 218) are cases of actual tort not connected with contract.

It will be seen that in none of these cases was the infant held hable where the tort was connected with a contract, unless the contract was disaffirmed by the plaintiff. In Eckstein v. Frank the ground of recovery was said to be that the defendant had obtained the property wrongfully. The plaintiff disaffirmed by suing, either for the property or for damages, and by not suing on the contract. In Wallace v. Morss the plaintiff disaffirmed, treating the transaction as a tortj not as a contract. In Studwell v. Shapter the court reversed the judgment for the plaintiff, saying that the action was founded on contract, and not based on fraud in disaffirmance of it.

This present action is not brought in disaffirmance of the contract. If the contract should be disaffirmed the plaintiff would have no title to the mare. But he kept the mare and thus affirms the contract, and asks damages for the fraud connected therewith.

In Moore v. Eastman (8 N. Y. S. C. [1 Hun], 578), an infant had hired a horse. The horse was taken sick, and the infant, against the advice of the doctor and the hotel-keeper, drove the horse. From the effects of such driving the horse died. The court held that, if the acts of the infant had been malicious or willful he would have been liable ; if, they were only unskillful, he would not. That there must be a tort independent of the contract. Although that case is not quite analogous to the present, yet the principle is similar, and the authorities there cited and approved apply directly. Prominent among these is Green v. Greenbank (2 Marshall, 485 ; S. C., 4 Eng. C. L. R., 375), where it was held that an infant was not liable for an action for falsely and fraudulently deceiving the plaintiff in an exchange of horses, because the deceit was practiced in the course of the contract. This same view is recognized in People v. Kendall (25 Wend., 399), and in Munger v. Hess (28 Barb., 75).

The general rule is laid down in Kent: “ The fraudulent act to charge him must be wholly tortious; and a matter arising ex cora tractu, though infected with fraud, cannot be changed into a tort in order to charge the infant in trover or case by a change of the form of the action.” (2 Kent, 241.)

So it is held that infancy is a good defense to an action on the case for deceit and false warranty in the sale of goods. The false representations are a part of the contract. (Prescott v. Norris, 32 New Hamp., 101.)

Again, infancy is a good bar to an action founded on a false and fraudulent warranty upon the sale of a horse, whether such action be in form ex contracta or ex deUcto. ( West v. Moore, 14 Vt., 447, Morrill v. Aden, 19 Vt., 505.)

To the same effect is Wilt v. Welsh (6 Watts, 1), which contains a full examination of the cases, and holds that where the substantive ground of the action is contract, as well as where the contract is stated as inducement to alleged tort, infancy is a defense. So, too, Studwell v. Shapter (ut supra).

This, too, is the doctrine stated in Tyler on Infancy. (§ 124, p. 128.) And this view makes all the cases consistent with each other. Thus, if an infant, by fraud, obtains property, with no intention of paying, though it he under the pretense of a contract of purchase, the defrauded party may recover. He does so on the ground that there was no real contract, and he disaffirms the apparent contract. On the same ground those cases must stand which have permitted a recovery for damages when an infant, to obtain goods, has fraudulently pretended that he was of full age.

On the same principle, if a party has been induced to purchase property from an infant, by the infant’s fraud and misrepresentation, it would seem that he might, on discovering the fraud, disaffirm the contract, return, or offer to return the property, and thus put the infant in the position of a mere wrong-doer, unjustly keeping what he had fraudulently obtained. And it would seem that the infant would then be liable in damages for tort.

But where, as in the present casej-the aggrieved party retains the benefit of the contract, he does not disaffirm it. His action there rests on the ground that he has made a contract, and it is necessary for his recovery that he should show that a binding contract has been made. Here, then, infancy becomes a defense. The defendant says there has been no binding contract; no action, therefore, lies for fraud in respect to a contract which he could not make. The alleged contract is the substantive ground of, or the inducement to, the cause of action; for, if there was no contract, then there could be no fraud in the making of it, and disproving the contract defeats the action. Therefore, as decided in all the cases above cited, infancy is a bar.

From these views it follows that the verdict must be set aside and a new trial granted, costs to abide the event.

And further, that the order denying the motion to vacate the order of arrest must be reversed, with ten dollars costs and printing, and such order of arrest vacated, with ten dollars costs.

Present — ■ Leakned, P. J., Bockes and Boakdman, JJ.

New trial granted; costs to abide event; order denying motion to vacate order of arrest reversed, with ten dollars cost and printing; and order of arrest vacated, with ten dollars costs.


author: Bocees, J.;

text:
    GILBERT MURDOCK, Appellant, v. CHESTER ADAMS and FREDERICK PHILIPPS, Respondents.

      Readjustment of costs — when grcmted — what dvrection as to readjustment proper.

    Appeal from an order of the County Court of Otsego county, directing that the items of costs appearing in a bill of costs, “ taxed by the clerk of Otsego county, in this action, and the whole of such bill be stricken out and such taxation be set aside, and the clerk of Otsego county adjust the same on the usual notice, at such sum as the interest on the verdict herein will amount to on the day such adjustment will take place.
    The facts upon which the motion for a readjustment of costs was based appear sufficiently from the following affidavit:
    “Walter H. Bunn, being duly sworn, deposes and says, that he is the county clerk of Otsego county; that on the 14th day of July, 1874, he adjusted the costs in above entitled action in favor of plaintiff at sixty-seven dollars and sixty-eight cents; that said costs were noticed for readjustment on the 22d day of July, 1874, at 9 h. a. m. ; that on July 22,1874, at 9 h. a. m., Geo. S. Gorham, Esq., plaintiff’s attorney, presented said bill of costs for readjustment; that deponent asked said Gorham if there was any objection by defendants’ attorneys to the bill; said Gorham answered 1 that he did not understand any item of the bill to be objected to.’ He also stated that he had met Mr. Lynes, defendants’ attorney, on the street, and he had said nothing to him about the taxation. Whereupon deponent marked or indorsed said costs as £ readjusted at sixty-seven dollars and sixty-eight cents,’ and said Gorham left the office. And deponent further says, that at nine o’clock and five minutes a. m., James A. Lynes, Esq., one of the defendants’ attorneys, appeared and asked to be heard upon readjustment of said costs, stating his objections to the bill, and also stating as a fact that plaintiff’s attorney well knew that he intended to oppose the retaxation. Deponent thereupon sent John Kelly, Esq., deputy sheriff of said county, to the hotel where plaintiff’s attorney was stopping^ with instructions to notify said Gorham that Mr. Lynes was in attendance at the clerk’s office, and desired to be heard upon the retaxation of the costs in aforesaid case, and that I proposed to open the taxation and hear the argument' thereon. Such notice was personally given to plaintiff’s attorney by said Kelly, as deponent is informed and believes true. Defendants’ attorney did not appear; whereupon I did set aside the retaxation previously made as aforesaid. The defendants’ attorney objected to the allowance of costs to plaintiff, - on the ground that the action was brought against the defendants’ official acts as trustees of a school district, and produced the certificate of H. G. Prindle, county judge, presiding at the trial of said cause, which certificate is hereto attached. Defendants’ attorney also cited Cla/rhe v. T%urmieliff (38 N. Y., 58), Laws of 1847 (chap. 480) and other authorities. After hearing such argument I did strike out and disallowed all the items of aforesaid bill of costs, except the item £ interest on verdict, eleven dollars and eighty-five cents,’ at which amount, to wit, eleven dollars and eighty-five cents, the said bill was by me readjusted.
    £C 'WALTER H. BUNN. .
    “ Sworn to before me, this 16th day of July, 1875.”
    The plaintiff’s attorney disregarded the last action of the clerk and issued execution for the recovery and costs as first taxed.
    The court at General Term said: “ The motion to set aside the readjustment of the costs, procured by the plaintiff’s attorney on the twenty-second of July, at nine o’clock, sharp, was very properly granted. Such readjustment was hastily made by the clerk, in the absence of the defendants’ attorney, and he was right in doing all in his power to give the latter an opportunity to be heard. His efforts to get the plaintiff’s attorney again before him were, however, unavailing, and his subsequent ex pa/rte readjustment was not recognized by the plaintiff’s attorney, and, of course, stood for naught. The defendants’ attorney, therefore, has had no hearing before the clerk on the taxation, nor has he had an opportunity to be heard on that proceeding, according to fair practice.
    Under the circumstances of this case, he should not be held in default on the readjustment. The motion was for nine a. m. The plaintiff’s attorney was promptly Rn hand at the clerk’s office, and although he had been informed that the defendants’ attorney intended to appear and oppose the taxation, he gave the clerk to understand that there would be no opposition, and induced that officer hastily and without waiting even five minutes after the time specified in the notice, to make and certify the readjustment. The attorney then immediately left the clerk’s office by the back door, and although called upon within a very few minutes to return and attend before the clerk, he refused to do so. His great haste in procuring the readjustment, and refusal to return when requested, stand without any reasonable excuse. The advantage gained by this questionable course of proceedure, he cannot be allowed to hold. The County Court was right, therefore, in setting aside the readjustment, and in giving the defendants’ attorney an opportunity to be heard. To this extent the order of the County Court was manifestly right.
    But that court went further, and directed the clerk as to his action on the readjustment. This would be very well in a case where the parties have been before the clerk together, and presented before that officer such facts as they wish to submit. But here the parties have not been heard together before that officer. "What will be the state of the case when they meet on the readjustment, we cannot now know. Perhaps the defendants’ attorney will not present his certificate "from the county judge, now before us in the papers; and again, he may present that, strengthened by an additional certificate covering the points of objection now urged against its sufficiency. On the other hand, perhaps the plaintiff’s attorney may obtain a certificate from the county judge nullifying the one already given; or perhaps he may show an appeal to the superintendent, and a decision thereon, and thus put the case without the statute and decisions relied on by the defendants’ attorney. We cannot now determine what will be the case made before the clerk on the readjustment, and therefore cannot direct his action in advance.
    On the case made by the parties before the clerk, he will first determine the questions raised. After which the dissatisfied party can have a hearing before the court, if a hearing then shall be desired.
    The order appealed from should, therefore, be modified so as to vacate and set aside the readjustment only, and this should be without costs of this appeal to either party.

      L. I. Bwrdett, for the appellant. Lynes <& Vtm Horn, for the respondents.
   Opinion by

Bocees, J.;

Learned, P. J. and Boardman, J., concurred.

Order modified.


text:
    PATRICK TIERNEY, Plaintiff, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Defendant.

      Perishable property — transportation of, by railroad company— duty of company as to — receipt for — Value — ■ evidence as to.

    Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict in favor of the plaintiff, and appeal from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The action was brought to recover damages alleged to have been sustained by the plaintiff, through the negligence of the defendant, in the transportation of a car-load of cabbages from Albany to New York.
    The court at General Term said: “ It is quite plain, I think, that a case was made for the jury on the evidence submitted. The property delivered for transportation was of a character recognized among carriers and forwarders as perishable; hence, required particular attention and a greater degree of care than would attach to such as is deemed non-perishable. It was received on the sixth and seventh of January; and due and proper diligence required that it should have been at once forwarded to the city of New York, its place of destination. It was in the car, ready for the freight train at East Albany at 10.40 p. m., from which place those trains were accustomed to leave for New York every few hours, the running time being ordinarily about eleven hours. The'car was left at East Albany for a considerable time, notwithstanding several trains were sent over the road, and did not reach New York until the tenth, and, as the plaintiff testified, until the thirteenth of January. In the meantime, the property was frozen and nearly destroyed. The defendant endeavored to explain and excuse the delay by showing an accumulation of freight at East Albany, but the evidence in support of this hypothesis was inconclusive, to an extent certainly which made it proper to submit the case to the jury on the proof. The learned judge properly héld, and instructed the jury that, inasmuch as the property had been delivered and accepted by the company as perishable, it became its duty to forward it by the first train, unless there was such a pressure and accumulation of a similar kind of freight to be transported, and which had previously arrived, as to prevent such immediate action. This instruction to the jury was sound in law. The rule laid down was a reasonable and fair one; it imposed no unjust obligation upon the defendant. If, then, there had been no accumulation of freight for transportation, beyond the ordinary capacity of the road,' all of it should have been forwarded in the order of its arrival; but if any delays were necessary, by reason of unusual accumulation, the perishable property should be forwarded in preference to that which was non-perishable. So the judge was right' in holding that the defendant was bound to forward the car containing the plaintiff’s perishable property, in case there was a pressure of freight cars to be forwarded, in preference to those which contained nonperishable property. * * *
    The plaintiff signed a receipt for the property in New York as £ in good order.’ It was competent f<?r the plaintiff to show the circumstances under which this receipt was given; and, on this point, he testified that he ■ wanted to sign for the load, £ in poor condition,’ but was not allowed to do so. The court held that he was not concluded by the terms of the receipt. In this, there was no error. The receipt was not of binding force as a contract; but, at most, was but an admission, and therefore susceptible of explanation and correction by parol evidence. (.Ellis v. Willcvrd, 9 N. Y., 529.) The plaintiff was allowed to testify against objection that he contracted for a sale of the cabbages at "Washington market, in New York, on the morning of the eighth of January, at from sixteen to twenty dollars a hundred. He also testified that he had dealt in the property and was acquainted with its market value; that the men with whom he contracted were regular dealers at that market, which was the greatest produce market in New York; and, further, that cabbages were worth from sixteen to twenty-five dollars a hundred, according to their quality. What he could obtain from dealers for the cabbages in that public market was evidence bearing on the question of value. This was admissible on that question. Certainly, it was not hurtful, in- view of the other evidence as to value, which stood wholly undisputed in the case.”

      A. J. Col/om, for the plaintiff. Matthew Male, for the defendant.
   Opinion by

Bocees, J.;

Learned, P. J., and Boardman, J., concurred.

Order affirmed with costs, and judgment ordered on verdict.


author: per Cwriam.

text:
    JEHIEL GRIFFIN, Respondent, v. LEONARD P. WINNE, Appellant.

      Chitting timiber — Injunction to restrain — not granted for mere threats, unaccompanied try acts.

    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    The action was brought to restrain the defendant from removing trees and cutting timber growing on lands owned by him, which the plaintiff claimed to be entitled to remove, by virtue of an agreement made with the defendant’s grantors.
    The court at General Term said: “ The plaintiff claims a right to cut down timber on land now belonging to the defendant. By the judgment in this action the defendant is enjoined from cutting down such'timber himself. It does not appear that the defendant had, previously to the commencement of the action, cut any of this timber. If, as it would seem, he had drawn away timber cut by the plaintiff, there was a sufficient remedy by action at law. The defendant had threatened to sue the plaintiff if he should cut this timber. But as a general rule mere threats, unaccompanied by acts, do not warrant the extraordinary remedy of injunction.
    There has been a tendency of late, as has been remarked in other cases decided in this court, to extend the remedy by injunction, and to apply it where the ordinary remedy of an action for damages was ample. We see no reason, in the present instance, if the plaintiff should be prevented from cutting the timber which he claims, or should in any way be deprived of it, why he might not be compensated sufficiently by an action for damages. There would be no difficulty in ascertaining the damages, and the defendant is shown to be responsible.
    Furthermore, the plaintiff may, perhaps, hereafter, by some neglect, forfeit his rights under the contract. This might be a defense in the future to the defendant, if the plaintiff should attempt to cut the timber.
    It is suggested that the action should be maintained to prevent a great number of actions for trespass. No action of that kind has yet been commenced. If such an action should be commenced, the parties might rest satisfied with the result and no similar action might ever be brought. There is no evidence, therefore, that numerous actions will be commenced.
    For these reasons, we think the judgment should be reversed and a new trial granted, costs to abide the event.”

      J. W. Ba/rmim, for the appellant. BwrdÁtt & Brooks, for the respondent.
   Opinion

per Cwriam.

Present — Learned, P. J., and Bookes, J.; Boardman, J., not acting.

Judgment reversed, new trial granted, costs to abide event.


author: Learned, P. J.

text:
    JAMES FORSYTH, Appellant, v. DANIEL HARTNETT, Respondent.

      Besw'wtion of right of way in lease— action for use and occupation.

    Motion for a new trial on exceptions ordered to be beard in the first instance at tbe General Term, after a nonsuit ordered by tbe court.
    Tbe plaintiff was the owner of a lot fronting on tbe Hudson river. He leased it verbally to White & Oo., “ reserving tbe right of ferry-way, and of landing of ferry passengers crossing over tbe lot.” There was no “ particular location as to where tbe passengers should go.” During this lease tbe defendant, running a ferry, landed at certain times on this lot, and on one occasion promised to pay tbe plaintiff for its use. Tbe plaintiff now sues for use and occupation.
    Tbe court at General Term said: “ Taking tbe language of tbe plaintiff himself, it cannot be said that any part of tbe lot was excepted from tbe lease to White & Oo. Tbe plaintiff expressly says that there was no particular location. White & Oo. were tbe sole lessees of tbe lot. Tbe plaintiff now insists that bis claim is for tbe use and occupation of tbe sbp or landing, and a way to and from tbe same across tbe lot. * * * Rut tbe evidence seems to show that all which tbe plaintiff reserved was a right to use this ferry way; and that not exclusively. * * * If White & Oo. were tbe lessees, and if all which tbe plaintiff bad was tbe right to use tbe ferryway, an action for use and occupation could not be maintained by him. There was no land which tbe defendant occupied.
    So, too, in this same view, tbe defendant’s promise to pay was without consideration. Tbe plaintiff parted with nothing, and it does not appear that bis consent to tbe defendant’s landing at this place was of any value. Hnless tbe plaintiff bad tbe exclusive right then, tbe consent to tbe defendant’s landing should have come from White & Oo. in order to give it any validity.”

      George A. Mosher, for tbe appellant. Edgar L. Eiorsman, for tbe respondent.
   Opinion by

Learned, P. J.

Present — Learned, P. J., Rockes and Roardman, JJ.

Motion for new trial denied, and judgment ordered for defendant with costs.


author: Boardman, J.

text:
    WILLIAM B. BOYD, Sheriff, etc., Appellant, v. MELVILLE H. CRONKRITE, Respondent.

      Practice — on nonsuit in County Court — Motion for new trial— County Court has no power to order exceptions to he first hom'd, at the General Terrm.

    This action was first brought in a Justice’s Court, where the defendant had judgment for his costs upon the verdict of a jury. The plaintiff thereafter appealed from said judgment and demanded a new trial in the County Court. After one verdict in the County Court, which was set aside, the case was brought on for a second trial in the County Court before a jury. After the plaintiff’s counsel had opened his case to the jury and before any evidence had been offered, the defendant’s counsel moved that the plaintiff be nonsuited and his appeal dismissed, on the grounds (1) that the action is not prosecuted in the name of the real party in interest; (2) that the action should have been commenced and prosecuted in the name of the sheriff of Steuben county; that his name and official capacity and designation should have been stated in the summons. The motion was granted and a recital of the facts, touching the ruling upon such motion, is contained in the papers, by which it appears “ that the motion of the defendant’s attorney that the plaintiff be nonsuited, was ordered by direction of the court.” And it was further ordered that the plaintiff have sixty days to make and serve case and exceptions, and defendant the like time to serve amendments “ to be heard at the General Term in the first instance, and that proceedings in the meantime be stayed.”
    The notice of appeal by the plaintiff is to the General Term, “ from the order and decision of the County Court of the county of Schuyler, made in this action on the 23d day of February, 1876, nonsuiting the said plaintiff and refusing to allow him to introduce any evidence on the trial of said action.”
    The court at General Term said: “ It is apparent that the plaintiff has erred in his practice.. The order or decision, as contained in the papers, does not purport to dismiss plaintiff’s appeal from the judgment of the Justice’s Court, nor does the notice of appeal to the General Term indicate any such order. The plaintiff was nonsuited in the ordinary way upon the trial. That was not an order to be appealed from. It was a decision or ruling in the progress of the trial, to be incorporated in the case and exceptions, and to be reviewed in connection therewith. ■ The other portion of the order, purporting to send the case and exceptions in the first instance to the General Term, is a nullity. The court had no power to make such order.
    The proper practice would have been for the defendant to have entered his judgment upon the nonsuit. The plaintiff then, upon his case and exceptions, could have moved for a new trial. If such motion were denied, he could then appeal to this court from such judgment and order. But the present appeal, if it can be called an appeal, is from no judgment and from no order, unless the order sending the case and exceptions here be within the appeal. (Code, § 844; 4 Wait’s Pr., 341.) There being, neither a judgment nor an order in the County Court, no appeal can be taken to the General Term. The appeal must, therefore, be dismissed for want of jurisdiction on our part to hear and determine the case upon its merits. It is not, therefore, deemed advisable to consider or express any opinion upon the merits. Should proceedings be had in the County Court by which a valid appeal may be taken to this court, the merits may then be properly and judicially disposed of.
    The appeal is therefore dismissed, without costs.”

      M. J. Sunderl/m, for the appellant. O. P. Hurd, for the respondent.
   Opinion by

Boardman, J.

Present — Learned, P. J., Bookes and Boardman, JJ.

Appeal dismissed, without costs.


author: Bajrnard, P. J.:

text:
    LUR WINTJEN and HENRY HARMS v. FRANCISCO VERGES and others, Respondents, and MATTHEW T. BRENNAN, Late Sheriff, Impleaded with others, Appellant.

      Action against sheriff met others — right of sh&riff,to remove it to his own county — (Me, § 124
    The plaintiffs having purchased a quantity of sugar from H. & D., of New York, the price thereof, while in plaintiffs’ hands, was attached by the sheriff of New York, under an attachment issued in an action against H. & N. Subsequently one Y. brought an action against the plaintiffs, to recover the price of the sugar, claiming that he was the owner thereof, and that H. & D. were merely his agents to sell the same. This action was brought by the plaintiffs, in the county of Kings, against the sheriff and the attaching creditors and Y., praying that they might be compelled to determine their conflicting claims to the sugar between themselves. Held, upon the application of the sheriff, that he was entitled, under section 124 of the Code, to have the place of trial changed to the county of New York.
    Appeal from an order made at the Special Term denying a motion made by the defendant Brennan, to change the place of trial of this action to the county of New York, of which county he was sheriff.

      Aknon Goockom, for the appellant Brennan.

      Luden Birdseye, for the respondents Yerges, Yerges'& Preston.
   Bajrnard, P. J.:

The plaintiffs purchased a large amount of sugar of Hxmtingdon & Dorn. Before they had paid for the same the late sheriff of the city and county of New York, Brennan, levied on the unpaid price of the sugars by virtue of attachments against Huntingdon & Raymond, at the suit of Shafford, Shafford & Hewitts. Verges, Verges & Preston, sugar- merchants of Porto Rico, claim the sugar and the price therefor, alleging that Huntingdon & Dorn were simply their agents to sell the sugar, which belonged to them. They commenced an action against the plaintiffs, "Wintgen & Harms, to recover the price agreed to be paid, amounting to over $40,000. The plaintiffs thereupon commenced this action against the sheriff and the attaching creditors, and Verges, Verges & Preston, asking that the conflicting claims of the defendants may be made the subject of an interpleader between them. The sheriff demanded that the trial be had in the city of New York, and, his demand not having been complied with, he made a motion to compel the change. The motion was denied. This appeal presents the question whether section 124 of the Code gives him the right to have the place of trial changed. This section provides that the place of trial against a public officer “ for an act done by him in virtue of his office ” be tried in the county where the cause, or some part thereof, arose. I think this statute covers this case. The sheriff is made a party because he has made a levy ; for this act, and by reason of the consequences which flow from it, he is asked to litigate his claim with another claimant. It is urged by the respondent that the action is not against the sheriff for an official act, but that the only question presented is the validity of the lien created by him by the service of the attachments. There could be no such question but for the act of the levy. The same argument would permit trover or replevin to be brought against the sheriff,who had levied on goods claimed by another. The title to the goods, and the validity of the levy, are the only things in question. Still the action is based upon the fact of the levy.

It is also urged against the motion that no personal claim is made against the sheriff. It is true that no personal claim is made against the sheriff, but the issue between the sheriff and Verges, Verges & Preston may terminate in a judgment for costs against the sheriff. (Richards v. Salter, 6 Johns. Ch., 444.)

Possibly even in a judgment for the attaching creditor’s debt, if the sheriff has been guilty of any neglect whereby the levy was invalid, and Huntingdon & Raymond are adjudged to have owned the sugar. The sheriff cannot be deprived of the statutory right by joining other defendants with him. (People v. Kingsley, 8 Hun, 233.)

The question is not varied by the removal of the attachment action to the United States Circuit Court. By section 646 of title 13, chapter 7, United States Revised Statutes, the attachment still holds the property to answer the final judgment.

I think the order should be reversed, and the motion to change the place of trial granted, with costs and disbursements.

Gilbert and Dykman, JJ., concurred.

Order reversed, with costs and disbursements.


author: Barnard, B. J.:

text:
    ALFRED M. WILES and WILLIAM H. WILES, Respondents, v. LAMBERT SUYDAM, Appellant.

      Liability-of trustees of manufacturing corporation, for afail/wre to file report — tight of each creditor to maintain a sepa/rate action.

    Under section 13 of chapter 40 of 1848, providing that upon a failure to file the report required by the act, “all the trustees of the company shall he jointly and severally liable for all the debts of the company then existing, and for all that shall he contracted before such report shall he made,” each creditor of the company may maintain a separate action to recover the debt due him from the company, and it is not necessary that all the creditors should join in one action.
    Appeal from a judgment in favor of the plaintiffs, entered upon the trial of this action by the court without a jury.'

      A. 3. Eitehcoek, for the appellant.

      George W. Weicmt, for the respondents.
   Barnard, B. J.:

The defendant was the president and one of the trustees of the Imperishable Stone Block Pavement Company of New York city, a manufacturing corporation organized under chapter 40, Laws of 1848, and its subsequent amendments. The trustees neglected to file the report required by section 12 of the act, within twenty days after the 1st January, 1873, and they have neglected to make and file any report since that time.

The plaintiffs, in October, 1872, were the creditors of that corporation. All the facts necessary to charge defendant, individually, with the payment of that debt under the provisions of section 12 of the act, are averred and proven. The proof shows that the plaintiffs’ debt was not the only debt existing at the time of the commencement of this action against the corporation, and the defendant claims that when there are several creditors who are entitled to sue for the same default, they must all be joined as plaintiffs in one action.

The words of the section, so far as material to this inquiry, are as follows:

“ All the trustees of the company shall be jointly and severally hable for all the debts of the company then existing, and for all that shah be contracted before such report shall be made.”

The claim of defendant is that no separate action is given to each individual creditor by the words, for his separate debt, when his is not the only debt against the corporation. We think the claim is •not well founded. The construction to justify it is forced. The imposition of a liability to pay all the debts of the company would naturally mean a liability to pay each creditor his individual debt. So far as my experience goes, it has been the uniform practice since 1848, for each creditor to sue alone for his debt under this section. The construction called for by the defendant, would practically destroy the protection the law intended to give the creditor against the default of the trustees. How are “ all the debts ” to be known ? If some are not due they cannot be joined. (Jones v. Barlow, 62 N. Y. Rep., 202.) Who can compel the other creditors to join with plaintiff ? Some debt may be disputed by the trustees. What interest has a creditor whose debt is not disputed with the controversy ? If the default to make and file the report continues, where is a rest to be made to determine wbat debts shall be joined with plaintiff 2 These debts may be created day by day until the report is made and filed. After a suit is commenced, which includes all debts due from the company to all its then creditors, what is to be done with the after-created debts \ The defendant says the payment of “ all the debts ” is a “ penalty,” and there can be but one which must include all the debts, and this requires all the creditors to be plaintiffs. By constantly creating new debts, all liability will be at an end, so far as this section is concerned. In Jones v. Barlow (supra), a portion of the plaintiff’s claim was stricken out as not due. This case not only recognizes that one creditor may sue, but that he may sue twice for his individual claim.

We think the judgment should be affirmed with costs.

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

Judgment affirmed with costs.


author: Barnard, P. J.:

text:
    SAMUEL C. BARR, Respondent, v. JAMES M. SHAW Appellant.

      Malicious prosecution ancl false imprisonment — action for, may be alleged in different counts of the same complaint.

    A cause of action for a false imprisonment, and a cause of action for a malicious prosecution, when hoth arise out of one and the same transaction, may he respectively alleged in different counts of the same complaint.
    Appeal from an order made at the Special Term, denying a motion to compel the plaintiff to elect upon which of his counts or causes of action, set forth in his amended complaint, he will rely, and that the residue be stricken out as irrelevant.
    The complaint contained a count of malicious prosecution, and also one for false imprisonment.

      John B. Bos Bassos, for the appellant.
    Under section 142 of the Code, it has been held that as there can be but one substantially true statement of a single cause of action. The practice of setting it forth in different counts is necessarily abolished. {Stooklridge Iron Co.
      v. Mellen et al., 13 How., 439; Superl/y et al. v. The Troy cmd Boston JR,. JR. Oo., 9 id., 83; Gkwrchill y. Ohurclvill, id., 552; Laohy v. Yanderbilt, 10 id., 155; Drnming v. Thomas, id., 281 [Alb. Sp. T., March, 1855] ; Ford v. Mattñce, 14 id., 91; Dickens v. F. Y. Gen. JR. JR. Go., 13 id., 228; Fash y. MeAukj, 9 Abb., 159; Hepburn y. Babcock, in note to above case; Moat’s Yan Sant. Plead., 150; 1 Chitty’s Plead., 243.) The defendant will be greatly prejudiced if this pleading is permitted to stand. The actions of malicious prosecution and for false imprisonment are entirely dissimilar, and the pleadings and evidence are different in each action. (Brown v. Ohadsey, 39 Barb., 253; Yon Latham y. JLibby, 38 id., 339.) Section 144 of the Code (subd. 5), permitting a defendant to demur where several causes of action have been improperly united, has no relevancy or bearing upon the present application. In the present instance the charge is not that there are two distinct and separate causes of action, but that there are two statements of the same cause of action; and under all the decisions it would manifestly be improper to demur.

      L. T. Williams, for the respondent.
    . The defendant does not show that the few lines he now seeks to strike out are a grievance. No facts are stated from which the court can base any such apprehension. (Brocklemcm v. Bra/ndt, 10 Abb., 141; Malory v. Dows, 15 How., 261.) Hnder the former system of pleadings, when the arrest was under color of legal process, it was the universal practice to insert a count for false imprisonment, or, what is the same thing, false arrest, with the count for malicious prosecution. (Saund. PI. and Ev., 651.) In Jones v. Palmer (1 Abb., 442) all the judges of the Supreme Court in the city of New York held, upon consultation, that to set out a cause of action in two separate forms or counts, provided there is a fair and reasonable doubt of his ability to safely plead this in one mode only, was not a violation of this provision of section 142. (Birdseye v. Smith, 32 Barb., 211; Sheldon v. Lake, 9 Abb. [N. S.], 306, 308; Sheldon v. Adams, 41 Barb., 59.)
   Barnard, P. J.:

I think the two counts or causes of action proper in this case. The plaintiff was arrested upon the complaint of the defendant. The plaintiff avers this complaint to have been malicious and without probable cause, and that he, the plaintiff, was discharged for the invalidity of the proceedings. Before his discharge he was imprisoned in the jail. To meet a possible variance in the proof or ruling upon the trial as to the validity of the arrest a count, or cause of action, for false imprisonment is added to one for malicious prosecution. If the arrest is established to be legal, then a cause of action strictly for malicious prosecution must be made out. If the arrest is held to be illegal, then, with a single count for malicious prosecution; a recovery for false imprisonment could only be had by proving the allegations of malice and want of probable cause, which are only important in an action for false imprisonment as affecting the damages. Such a pleading as the one in the present case tends to the attainment of justice. "Whatever the plaintiff is entitled to he can recover in this action. There is no unnecessary repetition. (Code, sec.' 142.) Order affirmed, with costs and disbursements.

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

Order affirmed, with costs and disbursements.


author: Barnard, P.' J.:

text:
    CHARLES W. SCOFIELD, Appellant, v. CHARLES DOSCHER, Executor, etc., Respondent.

      Foreclosure of mortgage — action to recover deficiency, after judgment of foreclosure and sale — lerne of cowrt to maintain — when necessa/i’y.

    In an action brought to foreclose a mortgage, the mortgagor and the executor of a person to whom a portion of the mortgaged premises had been conveyed, he having agreed to pay a portion of the mortgage, were made parties defendant, the executor being notified that no personal judgment would be taken against him. A deficiency having arisen upon the sale a judgment for deficiency was entered against the mortgagor. Subsequently, this action was brought against the executor to recover a judgment for the same deficiency against him. Held, that the plaintiff could not maintain the action, without first obtaining permission of the court so to do.
    Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court without a jury.

      Theron Q. Strong, for the appellant.

      Beng. M. Stillwell, for the respondent.
   Barnard, P.' J.:

On the 1st April, 1872, one Peter Donlan executed and delivered to the plaintiff his bond, accompanied by a mortgage upon certain lands in the city of Brooklyn, to secure the payment of the sum of $3,400, with interest. On the twentieth September thereafter Donlan sold a portion of the premises to Heiden, defendant’s testator. As part of the consideration of the sale, Heiden agreed to pay $2,050 of the principal sum secured by the mortgage held by plaintiff. On the 30th November, 1872, Donlan sold another portion of the mortgaged premises to Heiden, and, as part of this purchase-price, Heiden agreed to pay the further sum of $700, part of the same mortgage. Heiden died in July, 1873, never having paid either of these sums, or any part thereof. In August, 1873, Doscher was appointed executor and qualified as such. In November, 1873, the plaintiff commenced an action in this court to foreclose the $3,400 mortgage. Donlan, and Doscher executor of Heiden, were made defendants. The complaint asked for judgment for any deficiency which should arise upon the sale of the mortgaged premises against Donlon, but did not ask for any judgment against Doscher, as executor, for deficiency. Notice was served with the summons that no personal claim was made in the foreclosure action against Doscher as executor. He did not appear. Hpon the sale there was a deficiency. Judgment was perfected in the action for the deficiency against Donlon. This action is brought to recover the same deficiency of the defendant as executor of Heiden. By 2 Revised Statutes 191, section 152, power is given to the Court of Chancery, in an action for the foreclosure of a mortgage, to render a judgment against, the mortgagor for any deficiency arising upon the sale. Section 153 provides that no proceedings shall be had at law while foreclosure suit is pending, and after decree rendered thereon for the recovery of the debt secured by the mortgage, or any part thereof, unless authorized by the Court of Chancery.

Section 154 provides that if the mortgage debt be secured by any other person besides the mortgagor, the complainant may make such person a party, and have a decree for the deficiency against Mm as well as the mortgagor.

No leave of the court has been obtained to brmg tins action. Judgment was given for the defendant at the Special Term.

It is urged upon the argument as a reason for the reversal of the judgment, that no leave to sue is required in this case; that section 153, above cited, permits a judgment for a deficiency only against the mortgagor upon a bill filed for the satisfaction of a mortgage. Section 153 provides that, “ after such bill filed,” no proceedings shall be had at law for the recovery of the debt; that section 154, authorizing a judgment against persons besides the mortgagor ” who are liable to pay the mortgage debt, and providing that such persons “ may ” be made parties, and that the court “ may ” give judgment for the deficiency^ is permissive merely, and not mandatory ; hence, that a mortgagee may sue a person collaterally bbund to pay the mortgage, without leave of the court; that section 153 does not cover the cases provided for in section 154. We think the argument is not good. The tMee sections were designed to make one system, and to be read together. Before the statute no judgment could be rendered for the deficiency upon a mortgage; consequently complete relief could only be obtained in two actions, one in chancery to sell the mortgaged premises, and another at law to collect the deficiency.

The statute provides that entire relief should be given m one action.

Section 153 is not restricted to actions against the mortgagor, but provides, that no proceedings whatever shall be had at law for the recovery of the debt secured by the mortgage.” It operates upon the mortgage.

Whether section 154 is mandatory or not, is of no consequence in tMs case. The person collaterally bound is made a party; no personal claim was made against Mm, and he was notified that no such claim was made against him. It is a fair inference that the executor suffered the sale to take place in consequence thereof, without protecting the property. The plaintiff was bound to ask and obtain all the relief he was equitably entitled to in that suit. (Cook v. Grant, 1 Paige, 407.) Judgment should be affirmed, with costs.

Gilbert and Dykman, JJ., concurred.

Judgment affirmed, with costs.


text:
    AUGUSTUS C. BECHSTEIN and WILLIAM P. ROSS, Appellants, v. CHARLES A. SAMMIS, Sheriff, etc., Respondent.

      Action against sheriff, for failure to return execution — return of, nulla Iona after commencement of action — effect of.

    After the commencement of an action, brought against the sheriff for a failure to return an execution within sixty days, he returned the same indorsed nulla tona. Upon the trial the plaintiff proved the issuing of the execution, and its return and indorsement after the commencement of the action. Held,

    That as the return was made by a public officer of an official act he was bound by law to make, it was evidence in favor of the officer making it.
    That its admissibility was not affected by the fact that it was made after the commencement of the action.
    That as the plaintiffs did not contradict the return, he was entitled to recover only nominal damages.
    Appeal from a judgment for costs in favor of the defendant, entered upon the report of a referee.

      Eckowrd J. Cramer, for the appellants.

      John, J. Armst/rong, for the respondent.
   Barnard, P. J.:

The plaintiffs, on the 28th September, 1875, recovered a verdict against Henry Hodfield and John W. Hodfield for $3,071.04. On the next day an execution was delivered to the sheriff of Queens county, where a transcript of the judgment had been filed. The sheriff did not return the execution within the sixty days. The plaintiffs brought this action against him for this neglect. After the action was brought, and before its trial, the sheriff returned the execution to the clerk’s office with his return of nulla Iona indorsed thereon. Upon the trial the plaintiff proved the judgment, the issuing and delivery to the sheriff of the execution, and produced and read in evidence a certified copy of the execution so returned, with the indorsement thereon. The plaintiff offered no other evidence, and the.referee gave judgment for the plaintiff for six cents. The plaintiff appeals, and the only question presented is as to the effect of tbe sheriff’s return. Tbe return was made by a pubhc officer of an official act be was bound by law to make. Sucb return is evidence in favor of tbe officer making it. (Browning v. Hanford, 5 Den., 586; Board of Water Commissioners v. Lansing, 45 N. Y., 19; Russel v. Gray, 11 Barb., 541; Henderson v. Cairns, 14 Barb., 15.) It is evidence, notwithstanding it was made after tbe commencement of tbe action. (Glover v. Whittenhall, 2 Den., 633 ; Birkbeck v. Stafford, 14 Abbot Pr. Rep., 285.) When tbe plaintiff rested be bad proven a cause of action against tbe sheriff, and that be bad suffered only nominal damages.

It was competent for him to have contradicted tbe return, which is only prima facie evidence of its truth. Not having done so, tbe judgment is right, and should be affirmed with costs.

Gilbert and Dtkman, JJ., concurred.

Judgment affirmed, with costs.