author: Harpin', J.:

text:
    MARIA J. MYERS, as Executrix, etc., of AUSTIN MYERS, Deceased, Respondent, v. THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Appellant.

      Principal and agent — when the princvpal is eha/rgedble with knowledge of all facts known to the agent — he will he held to have ratified wrongful acts of the agent if he does not at once repudiate them.

    The plaintiff was the executrix and sole legatee of Austin Myers, who died on November 9,1870. On December 80, 1870, one Fitch, who was the cashier of the Mechanics’ Bank and the general agent and manager of the Myers’ estate, took from the plaintiff a power of attorney expressly authorizing him, in her place and stead as executrix, legatee and individually, “to sign, indorse and
    ■ make and deliver checks and drafts, promissory notes, receipts and all other vouchers and papers necessary and proper in and about settling the affairs pertaining to the estate of said Austin Myers, deceased, and to settle, compound, compromise, extend payment of and receive payment of all claims, debts, demands due, or to become due, to said estate.” On June 5, 1873, he took from her another power of attorney authorizing him to satisfy and discharge all mortgages made to Myers and to the plaintiff, and to demand, receive and receipt for the moneys due, or to become due, thereon.
    In June, 1869, Myers, who held the legal title to a bond and mortgage for $75,000 given by one Farley, assigned the same to the defendant as collateral, to a loan of $80,000 made by it upon the bond of Myers and one Nathan Bandall. In June, 1871, Nathan Randall assigned his interest in the Farley mortgage to his son Charles, who died in June, 1873, leaving a widow, to whom letters of administration were issued. Notice was given to the defendant on behalf of Charles and of his widow that they claimed a half interest in the mortgage. Subsequently the defendant was notified by the attorney for the widow of Charles Randall that there was no objection to the mortgage being assigned to Fitch & Ellis, and on April 28, 1874 in pursuance of a written request signed with the. plaintiff’s name by Fitch, the bond and mortgage were, upon the payment of the amount due to the defendant, assigned by the defendant to'Fitch & Ellis. Fitch signed a note with the plaintiff’s name and borrowed from his bank money with which to pay the loan due to the defendant, and subsequently paid the note from collections made upon the bond and mortgage. The whole amount due upon the Farley mortgage was paid to Fitch & Ellis, who deposited some $4,000 to the credit of the plaintiff and converted the residue to their own use. The plaintiff had knowledge of the assignment of the bond and mortgage and the payments thereon as early as January, 1877.
    In this action, brought in 1879, she sought to recover from the defendant the amount lost, on the ground that the defendant should not have assigned the bond and mortgage to Fitch & Ellis.

      Held, that the evidence was sufficient to justify a finding that the Randalls owned a half interest in the mortgage, and to that extent it was justified in assigning it as requested by his representatives.
    That if Fitch exceeded the authority conferred upon him -by the plaintiff in taking an assignment of the bond and mortgage to himself and Ellis individually, the plaintiff was chargeable with knowledge of his acts and must be held to have ratified the same by her neglect to at once repudiate and disown them. That she was not entitled to recover.
    Appeal from a judgment, in Onondaga county, in favor of the plaintiff for $14,953.84, entered on the report of a referee, and also from an order granting an extra allowance.

      Julien T. Davies, for the appellant.

      George N. Kennedy, for the respondent.
   Harpin', J.:

Austin Myers died November 9, 1870, leaving his last will and testament, in and by which he appointed the plaintiff his executrix, and in and by which he made the plaintiff his sole legatee.

After the will was admitted to probate, as it was November 24, 1870, she took letters testamentary and assumed the duties of executrix. Testator held in June, 1869, the legal title to a bond and mortgage of one Farley for $75,000 on property situated on Tenth avenue and Seventy-seventh street, New York, and he applied to defendant in July, 1869, for a loan of $30,000, which defendant made, taking therefor the bond of Myers and one Nathan Randall, and an assignment or pledge of the Farley bond and mortgage as security for' the loan of the $30,000 so advanced by defendant.

In June, 1871, Nathan Randall assigned to his son Charles M. Randall, his interest in the Farley bond and mortgage, to secure and pay out of the proceeds thereof certain debts of N. Randall. In June, 1873, Charles M. Randall died and letters of administration were issued upon his estate to his widow, Laura S. Randall. In September, 1871, in behalf of Charles Randall, Mr. Main, as attorney, gave defendant notice of Randall’s supposed interest in the bond and mortgage, and forbade the payment of any moneys arising out of the mortgage to the Myers’ estate, or at most more than one-half of the proceeds, and notice to that effect was given to the Myers’ estate and to Thomas B. Fitch, the agent thereof, in May, 1872. Negotiations were had as to the bond and mortgage between tbe parties named and the defendant. In March, 1874, Mr. Main gave notice to defendant that an adjustment had been made, and that certain moneys in the hands of defendant arising from the Farley bond and mortgage might be paid over, and certain moneys were paid over to Fitch & Ellis, as to which defendant has not been found liable. On the 27th day of April, 1874, Mr. Main informed defendant, in behalf of Mr. Randall, that a satisfactory arrangement had been made with the representative of the Myers’ estate, and that no objection existed to the defendant assigning the bond and mortgage to Fitch & Ellis, and the assignment executed by Austin Myers to N. Randall of one-half the Farley bond and mortgage was delivered to Fitch.” On the following day, to wit, April 28, 1874, an instrument in writing was delivered by Fitch to defendant, which read, viz. •

“New Yore, April 28, 1874.

F. S. "Winslow, Esq., President, etc.:

Dear Sir. — Please to assign to Thomas B. Fitch and James M. Ellis, of Syracuse, N. Y., the bond and mortgage of Warren Farley to Austin Myers for $75,000 held by you as collateral to a loan of $30,000 and oblige,

Yours very truly,

MARIA J. MYERS, Executrix.

By Thomas B. Fitoh, Attorney.”

After this was presented to defendant, Fitch on the 29th of April, 1874, paid to defendant $30,000 and interest and received from defendant an assignment of the bond and mortgage to Fitch & Ellis. The $30,000 was paid to defendant by a check drawn by the Mechanics’ Bank of Syracuse on the Continental Bank in New York, signed by Fitch, who was cashier of the Mechanics’ Bank of Syracuse. When Fitch returned to Syracuse he reimbursed the Mechanics’ Bank by executing Mrs. Myers’ note and having it discounted and held by the Mechanics’ Bank until it was subsequently paid up out of moneys derived by collections made on the Farley bond and mortgage. The note was renewed until it was finally paid, July 8, 1875, with interest, through the acts and directions of Fitch, who was then in charge of the Myers’ estate; and in the Myers’ pass-book with the bank on that day was an entry of tbe funds to pay the note and interest, to wit, $33,488.24, and the estate in the pass-book was credited with $36,621.31, that being the amount paid by Farley to Fitch on his bond and mortgage. That day Fitch & Ellis executed a satisfaction of the bond and mortgage dated 29th of June, 1875. The entire money, the amount of principal and interest, was collected from Farley and used so much, as stated above, to pay the bank, out of which the Myers* note was paid, and the balance in and about the business of Fitch & Ellis, who were then copartners in a shoe enterprise connected with the Auburn State prison. They paid back to Mrs. Myers, or the estate, $4,000 by depositing it in the bank to, the credit of the Myers’ estate. The balance never was returned to plaintiff and she seeks to recover it from defendant. Fitch became insolvent and died September, 1879, and Ellis is insolvent. The referee has reported against the defendant, holding that it was its duty to “ restore and reassign the bond and mortgage of Farley to the plaintiff on her demand as executrix and personal representative of Myers.” This action was brought in November, 1879. There was some evidence given upon the hearing before the referee tending to prove that Nathan Randall had some legal or equitable interest in the real estate covered by the Farley mortgage, and that he was the owner of one-half of the Farley mortgage, as between him and Myers, and that Myers executed an assignment of one-half of the bond and mortgage to Randall, and that Randall thereafter assigned to his son Charles M. Randall, and we think that the referee might have found that Laura S. Randall, as .administrator of Charles M., had at one time an interest in the Farley bond and mortgage, and as such owner was authorized to assent,,through Mr. Main, his attorney, to an assignment of such interest to Mr. Ellis, her uncle.

The evidence is not entirely clear as to the contents of the paper which Austin Myers executed to Nathan Randall, and it is not therefore made clear that Myers was the only one entitled to redeem from the defendant the Farley bond and mortgage. The circumstances disclosed would seem to warrant a conclusion that the defendant acted in good faith and upon sufficient apparent authority when it assigned the one-half of the Farley bond and mortgage to Ellis. We think the referee erred in refusing to find that Myers and Randall were tbe owners and holders, each to the extent of one undivided half,” of the bond and mortgage, and in treating Myers, or his estate or the plaintiff, as entitled to call upon the defendants to make good the one-half of the moneys which would have passed by the assignment from Myers to Randall. The consent of Mann, attorney for Mrs. Laura Randall, as administrator, was sufficient to authorize the assignment by defendant to Ellis of the one-half interest, and upon the evidence before the referee we think he would have been warranted'in finding that the authority of Mrs. Randall was sufficient to protect the defendant from ■any claim of the plaintiff by reason of one-half of the bond and mortgage.

When Fitch entered into the business of managing the Myers estate, he was in good credit and standing financially, and received full charge of the estate. Se took from the plaintiff on December SO, 1870, a power of attorney which expressly authorized him in her place and stead as such executrix, legatee and individually “ to sign, endorse and make and deliver checks and drafts, promissory notes, receipts and dll other vouchers a/nd papers, necessary and proper in and about settling the affairs pertaining to the estate of said Austin Myers, deceased, and to settle, compound, compromise, extend payment of and receive payment for all claims, debts, demands due or to become due to said estate or to me (her).” * * * Under this power of attorney he commenced to act in the management of the estate. He continued in charge of the estate until his death in August, 1879, being assisted by one or two clerks. He continued cashier of the Mechanics’ Bank, and Ellis was its president. On the 5th of June, 1873, Fitch took another power of attorney from the plaintiff which authorized him “to satisfy and discharge all mortgages made to Austin Myers now deceased, and to satisfy any and all mortgages made to her (me) individually * * * and to demand, receime and receipt for any and all moneys payable or to become due and payable on any or all such above described mort,gages as they shall become due,” and with power of substitution. Under these powers of attorney Fitch had ample authority to cancel the mortgage in question if it had been assigned to the estate. After it was assigned to Fitch & Ellis he still alone had power to receive all the money, as apparently he did receive it,' and receipt for it and to satisfy the mortgage, so far as to bind the plaintiff. Though she was owner of the whole mortgage he could so satisfy it either if assigned to him and Ellis .or to the estate. (People ex rel. Eagle v. Keyser, 28 N. Y., 226; Leitch v. Wells, 48 id., 601.) It does not clearly appear, nor is it found as a fact, that in negotiations with the representative of the Randalls, it was necessary ” to assent to an assignment of the bond and mortgage to Fitch & Ellis, in order to obtain the assent of the Randalls. If such had been the fact then Fitch may have supposed that he was acting within the very terms of the powers of attorney when as agent of the plaintiff he requested the defendant to mate the assignment in form to Fitch & Ellis instead of to the plaintiff. He must have known that in either form the assignment was made he had the power to collect the bond and mortgage and give receipts for moneys paid thereon, and to satisfy and cancel them when paid up.

In either event he could have used the m oney, so far as the plain tiff is concerned, in the manner in which it was used. But we do not regard this view of the case as very important. ¥e refer to it as it leads up to the phase of the case which relates to the subsequent action of Fitch in the premises. As we have seen, he made the note, as he was authorized to do, of the plaintiff and replaced the moneys he had temporarily used, by way of a loan from the bank, to repay the bank. That note of $30,000 was discounted and it served to replace with the bank the money borrowed from it to redeem the bond and mortgage from the defendant. Subsequently, under the assignment made by defendant to Fitch. & Ellis, Fitch collected the money from Farley, and repaid the note of plaintiff so given to the bank. When collecting the money upon the bond and mortgage Fitch was engaged in performing acts directly within the terms of his agency for the plaintiff. The making of the note, the repayment of it, were acts expressly authorized by the agency. He therefore, as agent, knew of the borrowing, the use made of the money borrowed from the bank, the taking up of the bond and mortgage, and the holding of the same free of any claim of the defendant, thereto.

Thus as her agent he was informed of the exact situation of the plaintiff’s interest in the bond and mortgage. So, too, he made a subsequent collection, and paid over to her account $4,000. We liave recalled these acts and the facts committed therewith for the purpose of showing that Fitch, as agent, was for a long period, elapsing after the transactions of April, 1874, with defendant in respect to the bond and mortgage, possessed of the facts relating to the real situation of the plaintiffs interest in the bond and mortgage. Besides, in obedience to a part of his duty to plaintiff, on the 8th of January, 1877, Fitch caused a statement to be made of the affairs of the plaintiff, and to be presented to her. In that statement there appeared an entry as to the Farley bond and mortgage in these words: “ Farley bond and mortgage, $62,066.47.” Now this was after the payment to her credit of $36,621.31 in July, 1875, on account of the bond and mortgages. If she or her accountants had followed out the entries, the information shown by them and the information which she possessed of the existence of those securities, she would have learned the actual situation of those securities. The general rule, which charges her with notice of such knowledge as her agent has obtained of matters in the scope of his agency, warrants the conclusion that she knew as early as July 8, 1875, and later, again learned on the 8th of January, 1877, what was the act of her agent in the premises, and what the defendant had done in respect to a surrender of the securities pledged to it when it was repaid the loan to which they were collateral. In Adams v. Mills (60 N. Y., 539), it is stated that “ according to the well settled principle, that a principal is chargeable with all the knowledge the agent possesses in the transaction of the business he has in charge.” (Also Bank of U. S. v. Davis, 2 Hill, 461; Ingalls v. Morgan, 10 N. Y., 185; Story on Agency, § 140; Fulton Bank v. N. Y. and S. Canal Co., 4 Paige, 137.) With such knowledge as she thus derived of the transactions, she was in duty bound to act promptly, if she would challenge the act of her agent, who had represented that he had kept within the scope of his agency and induced another to act in reliance thereon. (Griswold v. Haven, 25 N. Y., 595; N. Y. and N. H. R. Co. v. Schuyler, 34 id., 30; Banks v. Aymar, 3 Hill, 262; Gold Mining Co. v. Nat. Bank, 96 U. S., 640.) She slumbered for a long time upon the actual situation of affairs brought home to her through the two sources we have referred to. She received the benefit of a part of the collections made upon the bond and mortgage, as they were used to swell her account at the bant, and to extinguish her note made for the purpose of paying the loan made to her husband, or to him and Randall. Under all the circumstances disclosed, we are of the opinion that so far as the acts of the agent were beyond the technical power conferred in the written powers, the plaintiff has ratified the acts. A party may not blindly receive a part of the fruits of an unauthorized transaction, even though she be a woman with limited knowledge of business and turn round and repudiate, after an acquiescence of five years and a-half, the acts of her agent. (Meehan v. Forrester, 52 N. Y., 219; Benninghoff v. The Ag. Ins. Co., 93 id., 503.)

"We think this a proper case to apply doctrine laid down by the Massachusetts court in Harrod v. McDaniels (126 Mass., 415). It is there said, viz.: It is a lule in the law of agency, that when the unauthorized act of the agent is done in the execution of a power conferred in a mode not sanctioned by its terms and in excess' or misuse of the authority given, ratification by the principal is more readily implied from slight acts of confirmation. The duty to disaffirm at once, on knowledge of the act, is said to be more imperative in such cases, because the confidence of the principal in the fitness and fidelity of the person he has selected as an agent is shown by the relations already established between them.”

The wrong which the plaintiff suffers from was not perpetrated until Fitch converted the money. He could have done that if he had an assignment in form to him as agent, or in form to plaintiff, or to pláintiff as executrix. No act of defendant has occurred since, to complete a wrong or aid the agent in going wrong.

We have a case where one of two parties must suffer by the acts of Fitch, or Fitch & Ellis, and the plaintiff put it in the power of Fitch to seem to be authorized to receive the securities, and he represented in behalf of the plaintiff that such was his authority, and the defendant, so far as the case discloses, acted in entire good faith and ought not now to be burdened with the consequences following from the agents departure from duty.

We are, therefore, brought to the conclusion that the defendant ought not to be 'held to have converted the bond and mortgage, nor to be in duty bound to restore it to the plaintiff. We suppose the order for extra allowance falls with the judgment.

Judgment and order reversed and a new trial ordered before another referee, with costs to abide the event.

Smith, P. J., and Barkee, J., concurred.

So ordered.


source: Caselaw Access Project

author: HaRdiN, J.:

license: Public Domain

text:
    ALEXANDER M. LOWRY, Appellant, v. THE LANCASHIRE INSURANCE COMPANY, Respondent.

      Policy of fire insurance — condition that no requirement can he waived except by a written indorsement — when the service of proof of loss may he waived hy verbal agreement.

      A policy of insurance against fire .provided, among other things, that “ the use of general terms, or anything less than a distinct specific agreement clearly expressed and indorsed on this policy, shall not be construed as a waiver of any printed or written condition or restriction therein.” It also contained the usual clause requiring proofs of loss to be given and a verified account to be rendered. No proofs of loss were ever sworn to or rendered by the party assured, but evidence was given tending to show that his failure to make and serve them was caused by the statement and acts of one McCurdy, an agent of the company, and that McCurdy had authority to waive the presentment of formal proofs of loss, and intended to waive them in this case.

      Held, that, notwithstanding the restrictive clause, the service of proofs of loss might be waived by parol, and that it should, have been left to the jury to say whether or not such waiver had been made in this case.
    Appeal from a judgment, entered in Chautauqua county, upon a nonsuit granted at the circuit.
    The action was brought by an assignee of one Jackson, who had sustained a loss'by fire, which was covered by a policy issued by the defendant. The nonsuit was put upon the ground “ that there was not furnished any proof of loss, and that there was no waiver, and by the terms of the policy the agents of the company' are not permitted to make any waiver unless indorsed on the policy.” The property burned consisted of a stock of goods worth $1,000 or more.
    The policy contained the following clause, viz.: “ The use of general terms or anything less than a distinct specific agreement, clearly expressed and indorsed on this policy, shall not be construed as a waiver of any printed or written condition or restriction therein.”

      The ninth clause is the one contained in all policies, that in case of loss or damage, policyholders shall immediately give notice of said loss, and within thirty days render a particular account thereof, signed and sworn to.
    Proof was given that one McCurdy was the agent and adjuster of the defendant, and that he had acted in that capacity in the settlement of a prior loss sustained by Jackson on the insured property, and that he called upon Jackson soon after the fire, which occurred the 29th of September, 1879, and stated that “ he had authority to settle with him himself, and that they could arrange it before morning; that he had come to adjust the loss; that before he had nothing to do with paying any money, but in this instance he was to settle the loss.” Bills Avere obtained and figures made of purchases of the goods insured so far as obtainable. McCurdy offered $800 to settle the loss, and Jackson declined it and wanted $1,000. The assured told the agent “ that he did not do as he did before; that before he went before a notary public and made oath to it.” To this the agent replied, “ in this case it was not necessary, he was here to adjust and pay this loss.”
    The assured says McCurdy asked him “ if I would be willing to swear to the paper which he had drawn up, and I told him I would. I asked him at that time why I did not do as I did before, go before a notary public; he said it was not necessary, as before he had nothing to do with paying the loss.” As Ford, a witness, puts it, “ Jackson asked McCurdy, or told him that before he had to swear to his proofs of loss, and McCurdy said * * * that it was not necessary for him to swear to it now; and afterwards McCurdy asked Jackson if he would be willing to swear to this, and he told him he would be willing to swear to the inventory as it was taken then.” The negotiations for adjustment and settlement were about ten days after the fire. Horton, the local agent, was at the fire and thus the company had immediate notice, of it.

      O. Uaseltme and H. M. Lewis, for the appellant.

      Satterlee <& Yeoman, for the respondent.
   HaRdiN, J.:

"Whether the agent waived the service of formal proofs of loss upon the company or not, was a question of fact which should have been submitted to the jury. (Underwood v. The F. J. S. Ins. Co., 57 N. Y., 500; Goodwin v. Mass. Mut. Life Ins. Co., 73 id., 480, 494; Wood on Ins., §§ 416, 417.) There was evidence from which the jury might have found that McCurdy was a .general agent of the company, clothed with power to settle the loss, and to accept such proofs of loss as were presented to him in the investigation made when he held the negotiations with the assured. (Titus v. Glens Falls Ins. Co., 81 N. Y., 411.) The restriction in the sixth clause of the policyj was like the restriction found in the policy in Steen v. The Niagara Insurance Company (89 N. Y., 326). In respect to that DaNfoeth, J., says: In that case a waiver might be made by the company by oral consent as well as by writing, and the general agent, unless specially restricted, could do the same.”

It has been held, in cases where the policies contained more sti’ingent limitations of the power of agents in respect to waiver of conditions than the one before us, that after loss has happened conditions in the policy, with respect to preliminary proofs, may be waived by parol, though the policy contain a stipulation that no waiver shall take place except in writing, signed by the president or secretary of the company. (Franklin Fire Ins. Co. v. Chicago Ice Co., 36 Md., 102 [11 Am., 469]; Blake v. Exchange Ins. Co., 12 Cray, 265; Priest v. Citizens' Ins. Co., 3 Allen, 602.)

In Franklin Fire Insurance Company v. Chicago Insurance Company (supra), the Court of Appeals, of Maryland, in considering language like that framed in the policy before us, said: We are satisfied that it has no reference to the requirements with regard to the preliminary proofs of loss found in the condition of the policy; and that it was not contemplated with respect to them, that no defect or omission could be waived by the company without a written agreement to that effect indorsed upon the policy. (11 Am., 477.) Because there was evidence which would have warranted the jury in finding that McCurdy had authority to waive the presentment of formal proofs of loss, and that he intended to waive and did so waive proofs of loss, and thereby induced the assured to omit to make and serve more formal proofs than such as McCurdy did obtain from him, we think the learned trial judge was in error when he granted a nonsuit, and refused to submit the case to the jury. (Marvin v. The Universal Life Ins. Co., 85 N. Y., 283; Whited v. The G. Ins. Co., 13 Hun, 191; Marcus v. St. Louis M. L. Ins. Co., 68 N. Y., 625.)

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

Smith, P. J., and Babker, J., concurred.

So ordered.


author: Haubin, J.:

text:
    WILLIAM W. TEALL, Respondent, v. THE CITY OF SYRACUSE, Appellant.
    ' Joinder of causes of action — an action for a tort, and an action to recover, as upon an implied contract waiving the tort, cannot be united — Code of Civil Procedure, sec. 484.
    A cause oí action for the wrongful seizure and conversion of personal property, and a cause of action to recover the proceeds of the sale thereof in the hands ■of the defendant, as upon an implied contract, cannot be united in the same complaint.
    Appeal- from an interlocutory judgment of the Onondaga Special Term, overruling a demurrer to the complaint. Two grounds'of demurrer were stated, one that the complaint does not contain facts sufficient to constitute a cause of action, the other that two causes ■of action are improperly united, with a specification of the nature •of each of the causes of action as required by section 490 of the Code of Civil Procedure.

      L. Marshall and A. Knapp, for the appellant.

      George N. Kennedy and E. Foreman, for the respondent.
   Haubin, J.:

Two causes of action are stated in the complaint. The first cause of action is for wrongfully taking and converting, certain personal property lately belonging to the Onondaga County Bank, of the value of $3,200, with a claim for damages in that same sum and interest, “ by reason of the seizing and sale of said property under and by such direction and procurement as aforesaid of the defendant the city of Syracuse.” The second cause of action is for money had and received, the complaint alleging that on the 25th day of April, 1874, “the city of Syracuse received into its treasury and appropriated to its use the sum of eight hundred and seventy-four dollars the same being the proceeds of the sale of certain goods and chattels of and belonging to the Onondaga County Bank, being the same goods and chattels mentioned in the first count herein; before then wrongfully and without authority of law seized and taken and sold at public auction by said city of Syracuse its agents and officers, -x- * * whereby the said city of Syracuse became liable to pay into the said Onondaga County Bank the said sum of eight hundred and seventy-four dollars, with interest,” etc. Each count alleged an assignment of the cause of action to the plaintiff, and that each is “ owned by the plaintiff:” The first cause of action is in tort for wrongfully converting the property by means of a wrongful seizure and sale thereof. The second cause of action is for the proceeds of thfe sale of the property, and the right to recover rests upon an implied promise, or contract to pay, the tort being waived. (Hawk v. Thorn, 54 Barb., 168; Osborn v. Bell, 5 Denio, 370.)

Prior to the present Code, two such causes of action could not be united in the samé complaint. (Code of Procedure, § 167; Hubbell v. Meigs, 50 N. Y., 487; Booth v. F. and M. Bk., 65 Barb., 457; Sweet v. Ingerson, 12 How., 331; Cobb v. Dows, 9 Barb., 230; Hunter v. Powell, 15 How., 221; Colwell v. N. Y. and Erie R. R. Co., 9 id., 311; Springstead v. Lawson, 23 id., 302; McDonald v. Kountze, 58 id., 152; Thompson v. St. Nicholas Bank, 61 id., 163; Keep v. Kaufman, 56 N. Y., 332.) We think section 484 of the Code of Civil Procedure has not changed the rule. That section provides: “ It must appear upon the face of the complaint that all the causes of action so united belong to one of the foregoing subdivisions of this section.” The complaint does not make it appear that both causes of action belong to one of the classifications named in the section. The learned counsel for the respondent in his brief concedes that the “ first count is in tort for the wrongful conversion of the property; the second count is upon an implied contract to pay over the money wrongfully received as the result of the conversion. The first belongs to the sixth class of causes of actions mentioned in section 484 of the Code, and the second to the first class.” ■ He then insists these causes of action can be united in virtue of th'e ninth subdivision of section 484.

That subdivision, reads, viz.: Upon claims arising out of tbe same transaction, or transactions connected with tbe same subject of action, a/nd not included witbin one of .tbe foregoing subdivisions of tbis section.” 'It seems to us tbat taking tbe plaintiff’s confession as true, as we have no doubt it is, that the ninth subdivision does not aid tbe respondent. Because it is clear that tbe two causes of action are included in one of tbe four subdivisions ; and secondly, because it does not appear tbat “ all of tbe causes of action ” belong to one of tbe foregoing'subdivisions.

In Lattin v. M'Carty (41 N. Y., 112), tbe action was one in equity, to assert a fraud in obtaining a deed, and to strike it down and procure a return of the title to tbe plaintiff, where, but for tbe fraud of tbe defendant, it would have vested. As Hunt, Cb. J., said in that case : “ Both claims are harmonious and consistent with each other. They arise out of tbe same transaction, or certainly out of transactions connected with the same subject of action.” In tbe case in band there can be but one claim or recovery. If it is in tort, the right to recover is because of tbe wrong. If in contract, it is because tbe wrong is waived, and the plaintiff stands upon the contract which tbe law implied, after tbe waiver takes place. A recovery in tort would bar the action upon tbe contract and vice versa. Here there is an averment of distinct causes of action, one in tort, tbe other in contract. Tbe section referred to has not authorized such a union of causes of action, as presented by the complaint. (Flynn v. Bailey, 50 Barb., 77.)

Tbe order and judgment thereon of tbe Special Term should be reversed, with costs and disbursements of this appeal, and judgment ordered for tbe defendant upon tbe demurrer, with costs, and leave granted to the plaintiff to amend upon payment of the costs of tbis appeal and costs of tbe demurrer.

BARKER, J., concurred; Smith, P. J., not voting.

So ordered.


author: Hardin, J.:

text:
    SOPHIA SCHMID, as Administratrix, etc., of CONRAD SCHMID, Deceased, Respondent, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Appellant.

      Judgment against a receiver — liability of one purchasing the property from the recemer subject to all his liabilities — when the creditor may enforce his claim against the property in the hands of the purchaser.

    In this action, brought to recover the damages occasioned by the negligent killing of the plaintiff’s intestate in December, 1876, while crossing the defendant’s road, which was then operated by one Jewett as a receiver, the plaintiff recovered a judgment in April, 1879. for $5,000, which was on appeal affirmed by the General Term and the Court of Appeals. The final judgment of affirmance was entered in February, 1882.
    In April, 1878, the railroad property was sold under the foreclosure of a mortgage and conveyed to Morgan and others, as trustees, subject to all lawful indebtedness of said Hugh J. Jewett as such receiver, made or incurred by him during his said receivership, which indebtedness was thereby declared to be a lien upon said premises prior to said mortgages, and the said grantees, in and by the terms of said deed, assumed the indebtedness of said receiver. Thereafter 'the property was conveyed by the said purchasers to the defendant, a company incorporated under special acts of the legislature, by a deed making the conveyance subject to the said debts and liabilities, and the defendant executed a covenant to fulfill, perform and assume the same. In December, 1879, the receiver obtained an order discharging him from his trust.

      Meld, that the plaintiff could maintain an action against the defendant to recover the amount of her judgment, or to have the same declared a lien upon the property so sold and conveyed to it, and satisfied by a sale thereof.
    Appeal from a judgment and- order of the Erie Special Term overruling a demurrer to the plaintiff’s complaint.

      Sprague, Morey da Sgyrague, for the appellant.

      R. H. Parke, for the respondent.
   Hardin, J.:

Plaintiff’s intestate was killed December 22, 1876, while crossing the railroad track at the town Cheektowga in Erie county, by a locomotive while the Erie railroad was operated by H. J. Jewett as receiver.

Plaintiff brought an action against the receiver in December, 1878, and in 1879 recovered a verdict of $5,000, and ¿he judgment entered on the verdict was affirmed by this court, and afterwards our judgment was affirmed and judgment of affirmance entered, February 11, 1882. (The costs in the Court of Appeals of ninety-six dollars and ninety-nine cents were paid.) On the 24th of April, 1878, the railroad property was sold on mortgage foreclosure to Edwin D. Morgan and others, trustees,pursuant to a plan for reorganization, and conveyed 26th of April, 1878, and a referee’s deed made “ expressly subject to all lawful indebtedness of said Hugh J. Jewett as such receiver made or incurred by him during his said receivership, which indebtedness is thereby declared to be a lien upon said premises prior to said mortgages, and the said grantees in and by the terms of said deed assume the indebtedness of said receiver.”

On the 27th of April, 1878, defendant was incorporated under an act of the legislature passed lltli of May, 1874, and amende! by chapter 446 of Laws of 1876. On the 27th of Apr!', 1878, E. D. Morgan and others, trustees, conveyed the property so conveyed to them, to defendant. The deed was made subject “ to all liabilities before the execution thereof incurred by the said Hugh J. Jewett as such receiver, and defendant assumed all the d.ebts and liabilities. Defendant executed a covenant to fulfill and perform and assume each and every of the liabilities above referred to, and to pay off and discharge on the “ indebtedness or liabilities incurred or to be incurred by the said receiver, and defendant agreed that it will assume, and does hereby assume, all the acts of the said receiver done by him at any'time in the due execution'of his' office, and all liabilities aforesaid, and will indemnify,” etc. And defendant’s agreement also stated, viz.: The true intent of the clause lx ing to require the said party of the second part always to take care of and pay any sum or sums of money which the said Hugh J. Jewett has, as receiver, become liable for or which it may be established the said Hugh J. Jewett as receiver ought to pay or to have paid out of the property and estate which by this indenture are conveyed.” * * *

On the 3d of May, 1878, an order was obtained authorizing the transfer of the property-so sold and conveyed to the defendant, and thereupon a transfer of the Same was made to the defendant, and defendant received it and is in the possession of the property. In December, 2879, tbe receiver obtained an order “ discharging him from his trust as such receiver.” Plaintiff had no notice of the order until after the final entry of judgment in her action against said receiver, after the confirmation of the said judgment in the Court of Appeals.” Plaintiff’s judgment is not paid and this action is for the amount of her claim, or for the declaration of a “ lien and charge upon the premises and property so sold and conveyed and so transferred by the said receiver to the defendant, * * * and for the sale of the property to satisfy the bill, and the satisfaction of plaintiff’s judgments or for other relief.”

The Special Term overruled the demurrer and ordered judgment for plaintiff, and defendant appeals. Plaintiff alleges that her intestate was run over and killed by a train or locomotive “ being run and operated upon said railway by the said receiver, his agents and servants.” The judgment on the •trerdict is conclusive evidence of the liability by reason of negligence of the receiver, and establishes an indebtedness and liability of the receiver, and therefore the liability or indebtedness is brought prima facie within the covenant of the defendant. It is not necessary to determine now whether the defendant may not interpose defense. The query here is whether the plaintiff has stated facts sufficient to constitute a cause of action or ground for relief.

If we look at this case as presenting a covenant running to Morgan and others, trustees, and to the receiver, as the covenantees, then the obligation of the defendant is to satisfy all claims or liabilities arising by the acts of the trustees or by the acts or omissions of the receiver. Certainly the receiver’s liability for killing plaintiff’s intestate, was a liability which could be enforced against the receiver, and the property (held by him. Plaintiff therefore has a legal right founded upon some obligation of the promisee, and she has a right to adopt and claim the promise to have been made for her benefit. (Vrooman v. Turner, 69 N. Y., 285.) She is not a mere stranger. If the receiver had retained the assets, payment of her claim could have been enforced out of them. Plaintiff’s verdict was recovered April, 1879, and the receiver was. not .discharged until December 30, 1879. Defendant made no effort to litigate plaintiff’s claim other than through the defense and appeals of the receiver. We see nothing in the papers in the appeal book to lead us to suppose the court intended to leave claims situated like that of the plaintiff unprovided for, when it sanctioned a transfer of the property to defendant, or when it granted an order discharging Jewett from his trust.

It is more rational to suppose the covenant of the defendant was understood by the court to be a protection to the receiver, and to persons having suits upon liabilities incurred by the receiver while in the management and operation of the road.

Judgment affirmed, with costs, with leave to defendant to withdraw its demurrer, and answer upon payment of costs of this appeal and of the demurrer.

Smith, P. J., and BaeKek, J., concurred.

So ordered.


author: HabdiN, J.:

text:
    SIMEON MATHER, as Executor, etc., of ELIJAH PARSONS, Deceased, and RHODA PARSONS, Respondents, v. GILBERT E. PARSONS, Appellant.
    J'idgment— when set aside as having heen procured through fraud — Evidence — w7isn the general character of a pa/rty testifying in his own behalf may be impeached— when pan-ties a/re not bound to accept all the statements contained in affidavits of their adversa/ry although putin evidence by them — a witness cannot give his “under-sanding ” of a conversation — when the denial of a motion does not bar an action for similar relief.

    This action, was brought to set aside a judgment recovered by the defendant against his father Elijah Parsons, the plaintiff’s testator, on the ground thai, the same was procured by the fraud of the defendant. In June, 1870, just after Elijah had seated himself in a car to return from the city of Oswego to Syracuse, the summons in an action in the Supreme Court was handed to him by one Curtiss, to whom it had been given for service by the defendant. As soon as the summons had been delivered, and before Elijah had read it or become aware of its contents, the defendant, who was an attorney-at-law, took it, saying that he would attend to it. No other service of the summons was made, nor did the said Elijah ever know that any action had been commenced against him by the defendant. Subsequently the defendant entered a judgment in his own favor against his father secretly and with the intent that the fact of its entry should not be known to the said Elijah, or to any of his family or friends, during his lifetime.

      Held, that the court had jurisdiction of the action and that the judgment should be set aside upon the ground that it had been procured by the wrongful and fraudulent acts of the defendant.

      Apon the trial the defendant testified in his own behalf as to some of the principal matters in controversy and was cross-examined by the plaintiffs. Subsequently the plaintiffs were allowed to call witnesses to impeach the defendant’s general character.

      Meld, no error.
    In December, 1878, a motion, made by the plaintiffs at a Special Term for leave to serve an answer in the action in which the judgment was entered and defend the same, was denied.

      Meld, that as this motion was addressed to the discretion of the court, and as its denial appeared to have been rested in part upon technical objections, its deci. sion did not prevent the plaintiffs from maintaining this action, especially as the jurisdiction of the court to enter the judgment was questioned, and as nothing occurred on the motion to confer such jurisdiction or prevent its existence from being inquired into.
    Upon the trial the plaintiffs put in evidence the affidavits used by the defendant in opposing the said motion.

      Meld, that the affidavits were not thereby made conclusive upon the plaintiffs, and that they might show the facts to be contrary to some of the statements therein contained.
    In the course of the trial the defendant and Webb, his attorney, had been examined as witnesses. Subsequently one Fitzgerald was called by the plaintiffs and examined as to a certain con'espondence, and as to negotiations and conversations had by him with the defendant and Webb, in respect to his giving evidence upon the trial as to the service of the summons upon Elijah. He was then asked, and against the defendant’s objection and exception allowed to answer, the following question, viz.: “ When you sent the telegram to me did you understand from the interviews that you had with Webb in New York and your correspondence with him that he wanted to procure you to swear false for money? ”

      Meld, that it was error to allow the witness to state his understanding of the correspondence and conversations.
    Appeal from a judgment in favor of the plaintiffs, entered in Jefferson county upon the report of a referee.
    The action was brought to set aside a judgment entered in Oswego county October 25, 1875, in favor of (filbert E. Parsons against his father Elijah Parsons, now deceased, for $2,060 damages and $16.69 costs. The judgment was entered October 25,1875. The plaintiffs, the executor and widow of Elijah, set out in their complaint the circumstances attending the recovery of the judgment somewhat in detail, and allege that the “ said judgment is wholly without consideration, and that the same was recovered and entered by the fraud of said defendant, and that said judgment is fraudulent and void.” Elijah Parsons died August 14, 1878, being nearly seventy-nine years old. The referee in bis findings of fact, says “ that on or about the 23d of June, 1870, said Elijah Parsons was at the city of Oswego and about to take the train to return home; after seating himself in the ear one Samuel Curtiss, of Oswego, handed him a summons in the Supreme Court, which summons had just previously been given said Curtiss to serve on saij Elijah Parsons by the defendant. As soon as said summons had been delivered to said Elijah Parsons, and before he had read it or become aware of its nature or contents, defendant took it, saying he would attend to the matter, and the train then starting, defendant and Curtiss left the cars and Elijah Parsons returned home. * * * That the summons in said judgment roll was never served on said Elijah Parsons; that no copy of the summons in said judgment roll was ever delivered to and left with said Elijah Parsons; that said Elijah Parsons never was informed of, knew or understood that the defendant commenced any action against him June 23,1870 ; that he never knew of the proceedings of such suit or the entry of judgment, and was not informed in regard thereto by the defendant or otherwise. * * * That the said judgment was obtained and entered as aforesaid secretly and with intent on the part of the defendant, that the same should not be known by or communicated to said Elijah Parsons, or his wife, or any of his immediate neighbors or friends during his life. It was the intention of the defendant at the time of the entry of said judgment to keep the existence of the same, as far as he could, secret during the life of his father, and not to enforce the sanie until after his father’s death.” As a conclusion of law the referee found, viz.: (1.) That no process was legally served on said Elijah Parsons. (2.) That said judgment is fraudulent. (3.j That the plaintiffs are entitled to judgment, declaring said judgment fraudulent and void, with costs, and ordered judgment accordingly.

      Levi JE. Brown, for the appellant.

      Dennis O' Brien, for the respondents.
   HabdiN, J.:

Courts of equity have power and jurisdiction to set aside judgments procured by fraud. Precedents in the exercise ot such power and jurisdiction are numerous. The principle upon which the courts proceed is that fraud vitiates judgmeuts and proceedings to obtain judgments. (Stilwell v. Carpenter, 59 N. Y., 423; Smith v. Nelson, 62 id., 288; Dobson v. Pearce, 12 N. Y., 156.)

Judge Andeews, speaking for'tlie Court of Appeals in Stilwell v. Carpenter (supra), uses language appropriate and suitable for that case, and useful to have in mind in considering the case in hand; the judge says: “ It is not sufficient to authorize the interference of the court that it is shown that the claim upon which the judgment was obtained was unfounded or that there was a good defense to the action, or that the court erroneously decided the law, or that the defendant omitted to avail himself of his defense, if before the judgment was rendered the facts were known, or might by the exercise of reasonable diligence have been ascertained by him. It is the duty of a defendant to make his defense, if he has any, when he is sued, and if he omits to do it, he is in general concluded by the judgment.”

Dobson v. Pearce (supra), Judge AlleN says: “ The jurisdiction of the court in which a judgment has been recovered is, however, always open to inquiry; and if it has exceeded its jurisdiction, or has not acquired jurisdiction of the parties by the due service of process. or by a voluntary appearance, the proceedings' are coram non judice, and the judgment void.”

The complaint alleged “ that no summons was ever left with said Elijah Parsons in said action- in which said judgment was entered, and that said Elijah Parsons never knew that any suit had been commenced against him by the defendant, or that the defendant had recovered any judgment against him,” and that “the same was recovered and entered by the fraud of said defendant, and that said judgment is fraudulent and void.”

We are of the opinion that the complaint authorized the referee to receive evidence tending to support the facts found by him in his report. And that the complaint, though not so definite and elaborate as it might have been required to be made, had the defendant seasonably moved to have it made more specific, was sufficient to warrant the trial court in inquiring whether the summons was ever served upon Elijah Parsons, or whether the court ever acquired jurisdiction to render judgment against him by reason of what took place on the 23d of June, 1810. (Thomas v. Beebe, 25 N. Y., 247.)

If the defendant fraudulently obtained an affidavit from Curtis to the effect that the summons had been duly served by a delivery thereof, or by the delivery of a copy to Elijah Parsons, with an averment in the affidavit that the summons, or a copy thereof, was left with Elijah Parsons, when in fact it was not, and the defendant here knew 'that fact, and notwithstanding, used the affidavit of Curtis in the entry of judgment, then he was guilty of a fraud, and “ recovered and entered ” by fraud the judgment, and the same is “ fraudulent and void.” Whether the defendant was guilty of fraud, as found by the referee, was made the principal question for litigation before the referee. Although much evidence, pro and con, was taken upon the question whether the affidavit of service filed with the judgment-roll had been altered after the officer taking the affidavit had signed the same. • But as the referee rests his decision upon his findings in respect to the first question, that is the one chiefly entitled to our consideration in the- examination of this appeal. The learned counsel of the defendant contends that the burden was upon the plaintiffs, in respect to the several grounds upon which they were entitled to impeach the judgment. In this respect we think he is right. Plaintiffs allege the judgment is invalid, that it was fraudulently obtained; of course in the first instance, the burden is upon the plaintiffs to substantiate their allegations of fraud. (Heineman v. Heard, 62 N. Y., 448; Miller v. Brenham, 68 id., 83; Harris v. White, 81 id., 532; Smith v. Nelson, 62 id., 286; Ferguson v. Crawford, 86 id., 609.) Of course the fraud must be actual and positive. (Ross v. Wood, 70 N. Y., 8, 10.) But what fraud could be more actual and positive than the one which the findings of fact disclose in this case. Before a party is cast in judgment he ought to know that he has been sued, and ought to know that he is called upon to defend. If a party causes a summons to be served and then himself immediately takes it back with the assurance that it is a paper for him and not for the defendant, and then allows the defendant to believe such to be the fact, and subsequently enters a judgment, a palpable fraud is accomplished ; a fraud which no attorney ought to be allowed to profit by when perpetrated upon any party, whether the fraud be practised upon his father, his former client, or any other person.

• It is no defense to such a fraud, or paliation thereof, that the party producing it has some claim, or a full claim even, against the party so deceived and defrauded. The judgment which the defendant seeks to uphold, must fail if the service was made by resort to the means stated in the report of the referee. It is contended by the defendant that there is not sufficient evidence to support the findings of the referee. We are of the opinion that the principal facts found by the referee are supported by the evidence. Bloggett, a witness who testifies as to the admissions of the defendant, gives evidence which sustains the principal facts found by the referee. Whether credence should be given to Bloggett, was fairly a question for the referee to pass upon. Though he was contradicted by the defendant still the referee had a right to believe him. (Wright v. Saunders, 65 Barb., 214, affirmed 3 Keyes, 323.) Indeed it was within the province of the referee to say whether he would believe the defendant or his brother, in regard to the matters detailed by them. One was a party, the other, his brother, and both had become so identified with the judgment as to render it proper for a referee to consider and scrutinize carefully their evidence before concluding that it was worthy of credence. (Ellwood v. Tel. Co., 45 N. Y., 549; Kavanagh v. Wilson, 70 id., 177; Gildersleeve v. Landon, 73 id., 609; Koehler v. Adler, 78 id., 287.) Besides witnesses had been called that gave evidence tending to impeach the general character of the defendant.

Again, the referee had a right to consider the outlying circumstances connected with the origin and history of the judgment in weighing the evidence of the defendant and his brother. In short we are of the opinion that the evidence warranted the conclusions-of fact found by the referee, and we therefore ought not to reverse the judgment, upon the ground that the referee’s findings are against the weight of the evidence.

It is insisted by the defendant that the referee committed an error in allowing witnesses to impeach the general character' of the defendant after he had given evidence upon some of the principal matters in controversy, and been cross-examined by the plaintiffs in respect thereto, and as to some other circumstances and facts not involved in the examination in chief. We think the rule is settled in this State adverse to the defendant, by authorities binding on us. (Mattice v. Allen, 33 Barb., 547, opinion of E. D. Smith ; S. C., reversed upon another ground, appears in 3 Keyes, 492; People v. Moore, 15 Wend., 422.) The party wbo introduces a witness, vouches for his good character to the court, and he is supposed to. be ready to maintain it.

It is contended by the defendant that the motion made by plaintiffs in December, 1878, at Special Term to open the judgment, and for leave to serve an answer and defense was an adjudication against and bar to the right to maintain this action. The motion was addressed to -the discretion of the court. It was resisted upon technical grounds. One of them was that the proposed answer had not been served. The Special Term, also, was induced to entertain and considered an objection made to the motion, based upon the absence of proof, that no notice had been given of the judgment within one or three years from its recovery. Upon these objections the Special Term denied the motion without. prejudice tó a renewal. Under such circumstances the decision then made was not such an adjudication as' to prevent the plaintiffs from maintaining this action, besides, the jurisdiction of the court to-render the judgment is here challenged, and nothing occurred on the motion to confer jurisdiction to render the judgment, to ratify it, or to prevent its validity from being inquired into.

In the course of the trial the plaintiffs put in evidence the affidavits used by defendant in opposition to the motion, and the order made at Special Term. It was contended by defendant that the affidavits were conclusive upon the plaintiffs in this action. We think otherwise. It was allowable to the plaintiffs to show facts to be contrary to some of the statements in those affidavits. Such would have been the rule if plaintiffs had put a witness upon the stand, and he had in some parts' of his testimony given evidence against them, they still would be at liberty to show -the facts to be contrary to the statements made by the witness. This may be done by calling other witnesses. (Hunt v. Fish, 4 Barb., 324).

In the course of the trial the plaintiffs called one John Fitzgerald as a witness, and proved by him certain correspondence and negotiations and conversations had by him with the defendant, and his attorney Webb, in respect to giving evidence of what took place at the time of the alleged service of the summons in June, 1870. Before Fitzgerald was sworn, the defendant and Webb bad been examined as witnesses, and it is obvious that tlie object of tbe plaintiffs in calling Fitzgerald as a witness, was to sliow that the defendant and Webb had endeavored to suborn the witness Fitzgerald, and to induce him to attend and give evidence prejudicial to the plaintiffs. Fitzgerald sent a telegram to plaintiffs’ •counsel to the effect that he was acquainted with facts beneficial to plaintiffs. In the course of the examination in chief, plaintiffs asked Fitzgerald, viz.: When you sent the telegram to me did you unde?'stand from the interviews that you had with Webb in New York, and your correspondence with him, that he wanted to procure you to swear false for money ?” This was objected to “ on the ground that he has stated what was said in New York, fully, and it is' incompetent to give his understanding. It is for the. court to say what he had a right to understand from what was said.” Objections overruled and defendant excepted, and the witness answered, viz.: That is fully understood from the first start.” The witness was then asked, viz.: “ Q. Did you understand the same in regard to Parsons?” Same objection, ruling and exception. “A. Yes.” Defendant’s counsel now contends that both rulings were erroneous. When this ruling was made the defendant and Webb had given evidence explanatory of their correspondence, telegrams, conversations and dealings with Fitzgerald, from which evidence they sought to make it appear that all their dealings with Fitzgerald had been fair and innocent. It had thus become very important to ascertain which was correct, the version given by Fitzgerald or that given by defendant and Webb. If the former was the correct version, then the testimony of defendant and of Webb was badly shaken and of little worth, and the evidence tending to support plaintiffs’ case strengthened and made more potential. (Gulerette v. McKinley, 27 Hun, 332; Morgan v. Frees, 15 Barb., 352.) Which version was correct, had therefore become a very important question for the referee to determine. Both sides felt the force of the position taken by Fitzgerald, that there had been an attempt on the part of the defendant and his attorney, to bribe him into giving evidence damaging to the plaintiff and tending to support the defense, and that he had finally rejected the unholy proffer of money, and like an honest man exposed the attempt at subornation of perjury.

The first question we have quoted calls for the witness’ voider-standing of the interviews with Webb, and the “ correspondence ” with him. Fitzgerald had been allowed to state all that was stated and all that was written to him. We think it was not permissible to ask his understanding from them, that Webb “wanted to procure (him) to swear false for money.” The same question was put to Fitzgerald as to Parsons. Parsons had given his version, and the letters had been produced. Then it was for the court to say what had been the intent of W ebb and Parsons, whether they had been engaged in a crime which would consign them to the State’s prison and greatly weaken, if not entirely overthrow, the defense attempted in this action. We think it was error to permit Fitzgerald to give his understanding of the correspondence, telegrams and conversations. It was held in Denman v. Campbell (7 Hun, 88) that it was error to allow a witness to state who he supposed he was making a contract with. In Smith v. Sergent (2 Hun, 107), it was held error to allow a witness to state he supposed an assignment was executed by Corbin, and that what Corbin said or did was admissible, but that the supposition of the witness as to what was in fact done or omitted, was not. In Rich v. Jakway (18 Barb., 357), it is said the inference is to be drawn by the court as to what was the intent of the parties, and that was to be drawn from what a party said or did.” In Nicolay v. Unger (80 N. Y., 54), it was said a witness is not to be allowed to put a construction upon facts, that it is for the jury or court. (Carpenter v. E. T. Co., 71 N. Y., 574.) We do not lay stress upon the argument that it was the duty of plaintiffs to first interrogate Webb before proving the attempt at subornation. 1st. Because the evidence given tends to show if any such efforts were made,. they were with the assent and knowledge of defendant, if not indeed inspired and put on foot by him; and 2d. Because Webb was called later in the case and contradicted all that bore against him, and as fully as he could have done had he been examined before Fitzgerald was allowed to testify. (Hunt v. Fish, supra, 331, op. of Gridly, J.) Plaintiffs seek to justify the rulings upon the ground that they were at liberty to show the motive the witness had in telegraphing the plaintiffs. Had the question put been confined to an inquiry as to what was liis motive in communicating with the plaintiffs, a different question would be presented. Nor do we tbink we ought to say that tbe evidence worked no barm, we think tbe effect of the evidence may have been to influence tbe referee in tbe consideration of tbe vital parts of tbe case. Though we may be of tbe opinion that bis findings of fact are correct and just, we ought to see to it that parties have their issues of fact presented to tbe trial tribunal upon proper evidence in tbe first instance. We are constrained to say that for tbe error in respect to tbe questions quoted, there must be a new trial. Plaintiffs ask for a jury trial. That application can be presented to the Special Term.

Smith, P. J., and Babkbb, J., concurred.

Judgment reversed and new trial ordered, costs to abide the event.


author: HaRdin, J.:

text:
    THOMAS KELLEY, Respondent, v. JAMES J. McMAHON, Appellant.

      Temrporm'y injunction— a reference to ascertain the damages resulting therefrom, cannot he ordered, until the plaintiff’s right to it has been finally decided — how this decision must he made.

    In this action, brought by a tenant to have bis lease reformed, a temporary injunction was granted. Upon tbe trial it appeared that tbe plaintiff bad voluntarily surrendered tbe premises, whereupon tbe referee refused to bear tbe case upon its merits and directed that tbe complaint be dismissed, but without prejudice to tbe right of tbe defendant to take such action as be might deem advisable to recover such damages as be bad sustained by reason of tbe injunction, tbe question as to whether tbe plaintiff was entitled to the injunction or whether tbe defendant was entitled to any damages by reason of tbe granting thereof, not being decided. Tbe judgment entered upon bis report contained a similar provision.

      Held, that as it had not been finally decided that tbe plaintiff was not entitled to tbe injunction, the Special Term properly refused to order a reference to ascertain tbe damages sustained by tbe defendant.
    That it was not within tbe power of tbe Special Term, upon tbe bearing of tbe motion for tbe reference, to alter or vary the decision of tbe referee, or tbe judgment entered thereon, or to determine that tbe plaintiff was not entitled to tbe injunction.
    Appeal from an order of the Special Term in Cattaraugus county, refusing a motion for a reference to ascertain the damages alleged by the defendant to have been sustained by him by reason of the issuing of an injunction.
    The order states, viz.: “ It appearing from the judgment in this •action that the question whether the plaintiff was entitled to the injunction has not been decided, it is ordered that this motion be •and the same is hereby denied.” The plaintiff brought the action to reform a lease of ahotel made the 8th of June, 1881. The lease stipulated that the plaintiff should leave on one month’s notice in •case the hotel was sold, and the action sought to restrain the lessor from turning out the tenant, upon giving such notice, by means of summary proceedings. It was referred to a referee and the parties ■- appeared on the 22d of August, 1882, and made certain admissions whereby it appeared that the plaintiff had left the premises, having voluntarily surrendered the possession thereof to the vendee of the defendant, and that the relief sought by the complaint is no longer of any importance.
    The referee in his decision said, viz.: “ I now determine and decide that I will not hear the case upon its merits merely for the, purpose of deciding upon the question of costs, and I direct that the complaint herein be dismissed, but without prejudice to the right of the defendant to take such action as he may deem advisable to recover such damages as he may claim to'have sustained by reason of said injunction, * * * without hereby deciding on the question whether plaintiff was or is entitled to such injunction, or whether defendant is entitled to any damage by reason thereof, and I direct accordingly.”
    A judgment was entered upon the report, and in it the following clause is inserted, viz.: “ That the said referee does not find or decide whether the plaintiff was entitled to the injunction herein, or whether the defendant is entitled to any damages by reason thereof.”

      IS. D. JForthrup, for the appellant.

      G. M. Rider, for the respondent.
   HaRdin, J.:

By the undertaking given upon obtaining the injunction it was stipulated that‘plaintiff should pay such damages as defendant may sustain by reason of such injunction, “if the court shall finally decide that the said ¡plaintiff is not entitled thereto.” A determination that the plaintiff was not entitled to the injunction has not been made by the court or referee. To guard against the implication which might follow from general words dismissing the complaint, as in Pacific Mail Steamship Company v. Leuling (7 Abb. [N. S.], 37), the referee inserted in his report words which state-in terms that he had not passed upon the plaintiff’s right to an injunction. These words, or their equivalent, are found in the judgment. It thus expressly appears that it never had been determined by the referee or the court that the plaintiff is or was not entitled to-the injunction. Vanderbilt v. Schreyer (28 Hun, 63),does not apply,, as in that case there had been an order dissolving the injunction and the final order of dismissal or discontinuance was absolute, and when entered the order dissolving the injunction became “ operative as a final decision of the court that the plaintiff was not entitled thereto.” Because there is no final decision of the court that the plaintiff was not entitled to the injunction, -there was no breach' of the undertaking shown, and therefore the Special Term properly refused an order of reference to ascertain the damages which the defendant alleged he had sustained. (Palmer v. Foley, 71 N. Y., 106; Johnson v. Elwood, 82 id., 364; Code of Civil Pro., § 620.)

This was an equity action, and the court had power to- dismiss-the complaint in part and to retain it in part for the purpose of considering at a later stage parts of the case- not then passed upon. It could have expressly reserved the questions relating to the-injunction. We incline to the opinion that the court having, by its; reference, omitted to pass upon that branch of the case relating to-the right to an injunction, the defendant might have applied for an order to compel the referee to pass upon that question, or might, have excepted- to his refusal to so- pass upon the question, and upon a case presenting the proper exceptions, had a review of the refusal of the referee and a reversal of his decision. But instead, the-defendant acquiesced in the course pursued by the referee,, and contented himself with just such a judgment as the referee directed. It was not within the power of the Special Term, -when the order of reference was asked for to alter or vary the judgment entered, or the decision of the referee, or to, determine- that the plaintiff wa& not entitled to the injunction. (Stevens v. Veriane, 2 Lans., 96; McLean v. Stewart, 14 Hun, 477.)

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

Smith, P. J., and Barker, J., concurred.

Order affirmed, with ten dollars costs and disbursements


author: HaediN, J.:

text:
    FRANK D. CRIM, Executor, and ELLA E. STONE, Executrix, etc., of JUSTUS F. CRIM, Deceased, Respondents, v. RUFUS G. STARKWEATHER, Appellant, Impleaded, etc.

      Appeal — -power of the General Term to modify a judgment, upon 'a stipulation of the party, and affirm it as modified — effect upon a stipulation so filed of an appeal to the Court of Appeals, by the unsuccessful pandy, and his obtaining there a general judgment of reversal and a new trial.

    The complaint in this action set forth two causes of action, one upon a promissory note and the other for money loaned. The plaintiff having recovered a judgment upon each count, the defendant appealed to the General Term, Where the judgment was reversed and a new trial was ordered, costs to abide the event, unless the plaintiff would stipulate to reduce the judgment to the amount found due upon the note, in which case the judgment, as so modified, was affirmed. The plaintiff made and filed the required stipulation, and entered judgment accordingly. Thereafter the defendant appealed from the said judgment to the Court of Appeals, which reversed in all things the judgment s® entered and ordered a new trial, costs to abide the event.

      Meld, that upon the new trial the plaintiff was entitled to try the issues raised upon each of the causes of action, and was not confined to his action upon the note.
    Appeal from an order of the Onondaga Special Term, denying a motion made by the defendant.
    The complaint contained one count upon an indorsement of a promissory note for $l,-500, and one for money loaned amounting to some .$9,700. The trial was had before a referee, who reported in favor of the plaintiff’s testator in his lifetime, upon both counts. The defendants took an appeal to the General Term where an opinion was delivered, pointing out error in the trial of the second cause of action, and holding that no error was committed as to the first cause of action. The decision of the General Term was filed in tbe following words, viz.: “ Judgment reversed, and a new trial ordered before another referee, with costs to abide the event, unless plaintiff stipulate to Induce the judgment to the amount due upon the $1,500 note, as found by the referee, in which case the judgment as so modified is affirmed.” Upon this decision the plaintiff gave a stipulation to reduce and modify the judgment, and accepted the affirmance of the said judgment as so modified by the General Term. The original plaintiff died, and the plaintiffs, as executors, were substituted, and they entered a judgment for the recovery of the $1,500, interest and costs, on the 5th of December, 1881. On the 8th of December, 1881, the defendant appealed from the judgment so entered to the Court of Appeals. That court heard the appeal and in all things reversed the judgment so entered, as appears by the report of the case in 88 New York, 340, where the opinion concludes as follows, viz.: “ The judgment should be reversed, and a new trial ordered, with costs to abide the event.” And following that language the report states, viz.: “ Judgment reversed.” The remititur was filed in this court by which the court directed the judgment to be reversed, a new trial was ordered, with costs to abide the event.
    At a Special Term in August, 1882, the reference was vacated, and the action restored to the calendar of the Herkimer Circuit.
    The defendant’s motion, upon which the order appealed from was made, was based upon the claim that the right to try the second count in the complaint is gone. The Special Term denied the defendants’ motion, holding: “ That the stipulation reducing the judgment rendered upon the trial so as to accord with the judgment of the General Term, ceased to be operative when the judgment of the General Term was reversed by the Court of Appeals.” Defendant appeals from the order entered at Special Term on that decision.

      George IF. Smith, for the appellant.
    IF. dé If. E. Kern an, for the respondents.
   HaediN, J.:

After issue was joined in the action, the court had power to award a separate trial as to each cause of action set out in the complaint. Neither party then asked for or sought to hare a separate trial. Both parties proceeded to a judicial examination of the issues before a referee. In virtue of the trial, report and decision of the referee, whose report stands as the decision of the court (Code § 1223), the plaintiff became entitled to a judgment in his favor upon both counts of the complaint.

When defendant presented a case and exceptions, with his appeal to the General Term, the questions to be considered related to the right of the plaintiff to hold the judgment given by the referee upon both counts or causes of action. The court in examining the case and exceptions, found error in the progress of the trial as to the second count, and no error was supposed to exist as to the first count. In pursuance of its decision a new trial was ordered as to all the issues, unless plaintiff consented to modify the judgment entered on the report of the referee so that it should stand simply as a judgment upon the first count. That consent was given, and thereupon the judgment as so modified was retained by the court, and affirmed as so modified. With such consent given, the General Term had power to so modify the judgment. (Hayden v. The Sewing M. Co., 54 N. Y., 221; Whitehead v. Kennedy, 69 N. Y., 462; Code of Civil Pro., §§ 1317, 1319.)

Had the judgment entered upon the report of the referee been upon one cause of action, or its provisions been “ connected and dependent,” the General Term would not have had power to modify the judgment resting upon conflicting evidence. (Murphy v. Spaulding, 46 N. Y., 556; Whitehead v. Kennedy, supra; Cassin v. Delany, 38 N. Y., 178.)

But it now appears from the record, that when the case was heard in the Court of Appeals, the judgment of the General Term, modifying and retaining part of the judgment entered upon the report of the referee, was wholly reversed and a new trial ordered. The order for a new trial, as directed by the Court of Appeals, is unlimited and unrestrained by any terms of restriction or limitation to the issue relating to the first count of the complaint. Literally construed, it is an award of a new trial of the issues in the action. If the award by that court had been of a new trial of the issues as .to the first count of the complaint, a different question would have been presented. (Code of Civil Pro., § 1220.) Again, it does not appear from the order of tbe General Term that there was an intention to give a final judgment against the plaintiff upon a second cause of action. The case does not therefore fall within section 1224 of the Code, which authorizes the General Term “in its- discretion to render final judgment.”

Nor does it appear from the order of the General Term that the plaintiff’s complaint as to the second count was dismissed upon the merits, and the action of the General Term does not therefore stand as a bar to a second action or a second trial of the issues as to the second count. There remains no judgment expressly declaring, or judgment-roll mating it appear that a jndgment has been rendered upon the merits of the second count against the plaintiff. (Sec. 1209.)

The effect of the stipulation to reduce the judgment entered upon the report of the referee, to the amount found due on the first count was to vacate all other parts of the judgment based upon the report if the referee. The defendant has treated the stipulation as having chat effect, for he has not entered an order or judgment, reversing the other parts of the judgment, or dismissing plaintiff’s complaint as to the second cause of action. Had the defendant allowed the modified judgment to stand, he might have insisted with force that the plaintiff had lost the right to try the issue as to the second count in this action. But the defendant was not content with such modified judgment, and the stipulation given as a precedent necessity for the entry of such judgment modifying the judgment entered on the report of the referee, but appealed therefrom, and then took from the Court of Appeals a total reversal of the judgment of the General Term, and from that court an absolute and unconditional order for a new trial of the action.

Plaintiff’s inducement leading him to stipulate is gone. It was taken away by the course pursued by the defendant, resulting in the judgment and award for a new trial obtained in the Court of Appeals. We cannot escape the conclusion that there is no judgment or stipulation now in force to prevent the plaintiffs from insisting that they are entitled to a trial of all the issues in the action, those relating to the second as well as those relating to the first count in the complaint.

No case has been cited exactly in point, and we have found none, giving effect to an order awarding a new trial in a similar case. However, for the reasons already assigned, we have come to the conclusion that all the issues in the action are open for a new trial.. We therefore affirm the order of the Special Term.

Smith, P. J.,. and BARKER, J"., concurred.

Order affirmed, with ten dollars costs and disbursement!!.


author: Barker, J.: .

text:
    REUBEN WOOD, Plaintiff, v. CORNELIUS BODINE, as Ex-Sheriff of Seneca County, Defendant.
    Attachment— duty of the sheriff to retain the goods and to retake them by force, if necessary, from one who wrongfully removes them — liability of the sheriff for a failwre so to do.

    Under an attachment procured by the plaintiff, in an action brought by him against one Kennedy, a deputy of the defendant, a sheriff, levied upon a stock of goods belonging to Kennedy, which were in a small store kept by him. The next day a constable broke open the door of the store, of which the sheriff had the key, levied upon the goods and commenced to remove them. The deputy appeared, notified the constable that the goods had been attached, and forbade him to remove or interfere with them. The constable, assisted by several other persons, continued to remove them and overpowered the deputy, who used all possible efforts to retain possession of them, and commanded the bystanders to assist him. Subsequently the sheriff brought an action against the constable for interfering with his possession and recovered a verdict for the value of the goods.
    In this action brought by the plaintiff, who had recovered a judgment in- the action in which the attachment was granted, and issued an execution thereon which had been returned unsatisfied, to recover the damages occasioned by the failure of the sheriff to keep and sell the property attached:

      Meld, that the plaintiff was entitled to recover.
    That even if the sheriff had done all in his power to care for and protect the property up to the time at which the constable succeeded in wrongfully removing it, yet he was guilty of a neglect of his duty thereafter in failing to retake it by force or bring an action of replevin for its recovery.
    Motion for a new trial on exceptions ordered to be beard' in the first instance at the General Term, after a verdict in favor of the plaintiff had been directed at the circuit. -
    The action was brought again'st the defendant, as the sheriff of Seneca county, to recover the damages occasioned by his wrongful omission and neglect, to safely keep certain property attached by him in an action brought by the plaintiff.
    The plaintiff procured an attachment to be issiied out of this court against the goods and property of one Clark IT. Kennedy, and delivered the same to one of the defendant’s deputies, to be served. Immediately thereafter the sheriff seized and levied upon a small stock of goods owned by the defendant in the attachment, and kept in a store occupied by him in the village of Watei’loo. After such levy was complete the sheriff took full possession of the store, locked the same and carried away the keys. The next day, and in his absence, a constable, having an execution against the same defendant, broke open the store, levied upon the goods and commenced a removal of the same, and the deputy sheriff being informed of the action of the constable went to the store, notified the constable that the goods had been previously seized by him on an attachment and were in his custody, and forbade a removal thereof or any interference therewith. The constable continued to remove the goods, assisted by several persons acting in concert with him and under his directions. The deputy sheriff used all possible effort to regain possession of the goods, but was overpowered by the constable and others acting with him. The proof tended to show that the under-sheriff gave notice to the bystanders that the goods had been levied upon by him and commanded them to assist him in retaining possession of the property. None of those present rendered any assistance to the sheriff. The place to which the constable removed the goods was not disclosed on the trial. The sheriff prosecuted the constable, in an action in this court, for interfering with his possession, and recovered a verdict for the value of the goods, upon which judgment had not been entered at the time of the trial of this action.
    A judgment was perfected in the plaintiff’s favor in the attachment suit for the sum of $313.75 damages and costs and an execution issued thereon to the defendant, who made a return thereon in these words: “Returned unsatisfied. The property mentioned in the attachment was taken from me by persons acting under the direction of Louie Thurlwatsler, who claimed an attachment against the same, on or about the 1st of January, 1878.”
    At the close of the evidence the defendant asked the court to submit to the jury the question, whether the sheriff used due diligence in protecting tbe property attached, and maintaining his possession of the same. This request was declined and the court directed a verdict for the plaintiff for the snm of $353.

      D. Coates, for the plaintiff.

      F. L. Manning, for the defendant.
   Barker, J.: .

By virtue of the seizure under the attachment, the property was in the custody of the law, the sheriff being the custodian. As a public officer, charged with the execution of legal process, he owed a duty to the plaintiff to safely and securely keep the property for the purpose of satisfying the judgment which the plaintiff recovered in the action in which the attachment issued. (Code of Civil Pro., §§ 681, 674, 708.) If the sheriff did not faithfully perform this duty, and by reason of any negligence on his part or on the part of any of his deputies the plaintiff has suffered damage, then the defendant is liable.

The nature and degree of a sheriff’s liability in case of loss or destruction of property seized and taken into his possession, by virtue of legal process, was determined in case of Moore v. Westervelt, Sheriff, etc. (27 N. Y., 234). It was there held that his liability is the same as that of bailees for hire, citing and approving of the rule as stated in Edwards on Bailments, 59, as follows: “ A sheriff levying upon goods, must use due diligence to keep them safely, to satisfy the execution. But he is not an insurer, and is not like a common carrier, answerable for a loss of the goods by .fire. His capacity as an officer is not considered as fixing a more rigorous measure of liability upon him than if he were a private person.”

, In the case cited, the property had been seized by the sheriff on a writ, of replevin and while in his custody was lost, having been sunk in the harbor of New York. In stating the rule of liability, the trial court instructed the jury: “ That it was.the duty of the sheriff to take such steps to insure the safety of the coal as a careful, prudent man of good sense and judgment, well acquainted with the condition of the vessel and her location, as regards exposure to storms and having all the power of the sheriff in the matter, might reasonably have been expected to take, had the coal belonged to himself; and if tbe jury came to the conclusion that the sheriff did not take that degree of care and preservation of the coal as he had thus indicated, and that the injury was occasioned by the negligence of the defendant or his officers, the plaintiff would be entitled to a verdict.”

The plaintiff thereupon asked the court to charge : “ That the sheriff was hound to take more than ordinary care of this property, and if for the want of more than ordinary care the property was lost, he was responsible.” The judge refused to charge this request.

These rulings were upheld as a correct statement of the law as to the duty and liability of a sheriff in such cases. The judgment of the court of last resort in this case puts an end to the contention, which has often been made, that the officer is an insurer of property in his hands by virtue of a levy under legal process, and is liable for its loss or destruction unless the same happened by the act of God or the public enemy.

The defendant insists that under the rule as now established, and upon the facts and circumstances of this case, it was a question of fact for the jury to determine whether he was guilty of any negligence or breach of duty in protecting the property in his custody, and it was error in withholding the question from their consideration.

If the real and only question in the case was whether the sheriff did all his duty in caring for the property and protecting his possession up to the time the constable succeeded in accomplishing his wrongful purpose, by removing the property on a claim of right by virtue of process in his hands, then very plainly a question of fact was presented for the' determination of the jury.

It may be conceded that up to the end of the contest over the possession, the sheriff acted with the greatest diligence, activity and propriety; that he summoned the bystanders to his assistance and they refused to aid him in retaining possession of the property and resisting the action of the constable. The sheriff’s duty, however, ■did not end on a capture of the goods by the stronger hand of the constable. The goods were not lost nor destroyed, and from the evidence it is fair to assume that they remained in the hands of the constable and within the sheriff’s bailiwick.

In all the eases where the sheriff’s liability has been tested by the rule, as already stated, and held exempt from the charge of negligence, there was a loss of the goods by theft, robbery, burglary, or by the action of the elements. It was so in the case of Moore v. Westervelt (supra). In Jenner v. Joliffe (6 Johns., 9), the loss occurred in consequence of a flood,'in the stream where the lumber was rafted. In Browning v. Hanford (5 Hill, 588), the goods were consumed by fire while in the sheriff’s possession. In other cases .where the question was up, the goods were lost by larceny or robbery, the felon escaping with the same.

After the sheriff was deprived of his possession, he remained passive and did no act whatever, with a view of regaining the custody of the property. Therein, he was guilty of a breach of duty, which constituted actionable negligence. As the goods were not destroyed and remained within his jurisdiction he had ample power and authority to regain thé possession. Although he had been deprived of the actual possession, the goods remained in the custody of the law and the levy under the attachment continued. It has never been held, by any court, as I can find, that a rescue of the property by a claimant, unless the claim was well founded, was a good and a sufficient return to a process in the hands of a sheriff. The sheriff had the power to raise thq posse aomitatus and reseize the property. He could have done it on the spot and gone in hot pursuit or acted with more deliberation and organized a force on a later day. No one can doubt if he had done this, that he would have regained the possession of the property. (Code of Civil Procedure, § 104; Browning v. Hanford, supra.) He could have prosecuted the constable in an action of replevin and by that means regained possession and had the property in his custody, so that he could have levied upon the same by virtue of the execution.

In Midway v. Smith (2 Saund., 343), it was stated by the court, that a return by a sheriff of a rescue is not a good and sufficient excuse on fi.fa. for a neglect to satisfy the execution out of the defendant’s goods.

The facts and circumstances, in all esential particulars, are similar to the case of Ansonia Brass and Copper Company v. Babbitt (74 N. Y., 395), where after a levy by the sheriff, the marshal in bankruptcy proceedings, took the goods from the sheriff’s possession without his consent and against his protest. He made no effort to regain tbe actual possession of tbe property, and it was neld by tbe court, that tbe seizure by tbe marshal constituted no defense for tbe sheriff, as the marshal acted without right or authority; that in no proper sense-had the sheriff yielded to a vis major; that he had the right to use all the necessary force to protect his possession, and having failed to do so was liable .to the plaintiff in the execution.

We are therefore of the opinion that, as a matter of law upon the undisputed facts, the sheriff was guilty of a breach of official duty, and liable to the plaintiff for the value of the goods. The defendant asked that it be submitted to the jury, to assess the value' of the goods levied upon, and this was refused by the court and the defendant excepted.

The inventory, as made by the sheriff and the appraisers selected by him, was given in evidence. The goods were itemized and the value placed on each article which, in the aggregate, amounted to $230.21. The plaintiff testified that the goods were of the value mentioned in the inventory. The defendant did not offer any proof on the question of value. This evidence prima facie established the value of the goods, and the jury would not have been justified in finding the value any less. As we read the attachment, the same was signed and allowed by the county judge, within the meaning of section 641 of the Code of Civil Procedure. As the debtor in the attachment proceedings did . not move to vacate the same, and the same stands in full force and effect, the process afforded the sheriff full and complete protection, as the facts stated in the affidavit tended to make out a case authorizing the same to issue. The amount of the inventory is $230.21, and as there is no evidence that the goods were of greater value, it' is manifest that the court was misled in stating the value to be $353, and directing' a verdict for that sum.

' On the plaintiff’s stipulating that the verdict may be reduced to $230.21, judgment is ordered thereon, with costs, if such stipulation is refused then a new trial is ordered, with costs to abide the event.

Smith, P. J., and HabdiN, J., concurred.

So ordered.