author: Beckwith, Ch. J. Hatch, J. (dissenting.)

text:
    John J. Thebaud, App’lt, v. Eliza Hume et al., Resp’ts.

      (Superior Court of Buffalo, General Term,

      Filed July 16, 1891.)

    Ejectment—Examination op plaintiff as to title—When pkofee.
    Where, in an action of ejectment, the complaint does not disclose how the plaintiff became the owner, and the defendant, after diligent search and inquiry, is unable to form any idea of the theory, pretense or claim upon which the former sets up a right to the land, an order for an examination of the plaintiff as to the source and character of the title to the lands mentioned in the complaint, is proper and will not be set aside on appeal.
    Motion for a reargument.

      Frank C. Ferguson, for app’lt; Norris Morey, for resp’ts.
   Beckwith, Ch. J.

—This is a motion for the reargument of an appeal from an order made at special term “ for an examination of the plaintiff as to the source and character of the title to the lands mentioned in the complaint.”

This action is ejectment The court at special term decided that an examination of the plaintiff as to the nature and source of his alleged title was material and necessary to enable the defendants to prepare their answer.

The facts and circumstances stated in the defendants’ affidavits, upon which they rely to show that the examination of the plaintiff is material and necessary, are very much the same facts and circumstances that would be put forth" by the possessor of land against a stranger who should come along and claim to own his land. The defendants say in effect that they cannot form any idea of the theory, pretense or claim upon which the plaintiff sets up a right to the land; that they have searched the records and made inquiries and cannot get any hint or notion of the ground upon which the plaintiff claims to be the owner of the parcel of land in question; that the plaintiff does not disclose how he became the owner, whether by deed, devise or otherwise, and they affirm that the nature of their defense is that the plaintiff has “no right, title or interest in or to said premises, and no present right to the possession thereof as against the plaintiff." They aslc the plaintiff to disclose his title, the nature of it, by showing the source of it, so far as to enable them to answer intelligently.

The defense will consist not only in establishing the validity of the title claimed to belong to the defendants, but also in showing the invalidity of the plaintiff’s title. To overthrow the plaintiff’s title is obviously one defense, which the defendants would have a right to attempt to ■ accomplish, and the quality and character of that title is matter as material and necessary for the establishment of the defendants’ answer as the plaintiff’s complaint.

And it was in this view that when the defense consists in destroying the plaintiff’s case, it was held, under the chancery jurisdiction, that a defendant could, sometimes enforce discovery from a plaintiff, when under like circumstances a plaintiff could not examine into a defendant’s proof or ground of defense. Hoffmann v. Postill, L. R., 4 Ch. App. Cases, 678.

It is true that the defendants could answer by a general denial, but they would be in the dark, and the object of an examination of the plaintiff would be to enable them to answer intelligently ; to enable them to know something about what they are setting up an answer against; what the title claimed by the plaintiff is; what source it comes from. I think the plaintiff is bound to answer questions that will exhibit his title, for such disclosure would enable the defendants to answer, although plaintiff could not be compelled to discover the instruments of proof by which he intends" to support his claim, any further than necessary to show the source of title.

The judge who made the order appealed from, says in his ■ opinion : “ The defendants must necessarily attack the plaintiff’s title, or show a better one in themselves. It appears that the defendants have failed, after search and inquiry, to ascertain what the source of plaintiff’s title is, and I can see how such information may be necessary to the defendants in framing their answer to meet the facts. I think, however, that the examination should be limited to the sole question of the source and character of plaintiff’s titla”

It thus appears that Judge Titus took notice of precise facts and circumstances which he thought justified the exercise of the discretionary power given by the statute to grant the order. We are unable to say that that power was improperly exercised in this casa The examination is ordered to be confined to the character and source of the plaintiff's title, and is not to be extended to collateral matters, such as surveys, boundaries, practical location, nor to the plaintiff’s means of proof, further than necessary to disclose the source of the alleged titla The defendants would ■seem to be entitled to so much light as that. Adams’ Eq., p. 9.

In Powers v. Elmendorf, 4 How. Pr., 60, Justice Harris held that defendants should be compelled to disclose title deeds. But this proceeding is governed by the statute and the rules of court. The defendants’ papers conform technically to the requirements of the Code. Eule 83 requires the defendants to state the facts and circumstances which show that the examination of the party is material and necessary. Here the defendants have stated the facts and circumstances which they thought showed the necessity ■of the examination. Among other things they show that they ■cannot get any clue as to the claim of title, pretense or color of title under which the plaintiff alleges a right to recover the premises. The case as made upon the papers is like that of a citizen who, while occupying his property under an undoubted ownership, is sued by a stranger who alleges ownership in himself, but upon what title or claim the defendant is unable, after search and enquiry, to get any light. The judge who granted the order deemed the facts sufficient, and we cannot say that there was an abuse of his discretionary power. Glenney v. Stedwell, 64 N. Y. 120; Herbage v. City of Utica, 109 id., 81; 14 N. Y. State Rep., 845

We understand that ordinarily a defendant cannot compel a plaintiff to produce for examination the evidence, documentary or other kinds, upon which he. relies to establish his case unless there is some fact in connection therewith which the defendant relies upon to establish his defense, when he may have discovery, as was done in Jackson v. Jones, 3 Cow., 17, and in Kearny v. Jeffries, 48 Miss., 343.

In ejectment the defense may depend upon the ability of the defendant to attack and expose invalidity in the plaintiff’s alleged title, and in order to plead and to prepare himself for such a mode of defense he would find it material to have some knowledge of the source of the plaintiff’s alleged title whether founded upon deeds, inheritance, will, fraud, estoppel or other claim. Of course the plaintiff in order to recover must establish his title, but that does not alter the position of the defendants, who, before they can intelligently plead, must have some information as to the source of that title which the plaintiff alleges he has, and in respect to which the defendants, after effort to find out its character remain in the dark

We think the order of this court affirming the order of the ■special term should not be disturbed, and, therefore, the motion for a re-argument is denied.

Hatch, J. (dissenting.)

—An order was made herein at special term, requiring plaintiff to submit to an examination for the purpose of enabling defendants to frame an answer. On appeal, this order has been affirmed. Further examination convinces my mind that, in the disposition of the motion, the court has overlooked a plain distinction between the examination of a party for the purpose of framing a pleading, and where examination is ordered after issue is joined, making application of the rules governing the latter instead of the former. The' sections of the Code which authorize this practice are found in chap. 9, tit. 8, of which § 872 is alone material to the present consideration.

Similar practice existed in the courts of chancery and under the Revised Statutes, and was formulated in § 391 of the old Code. Hnder the latter the practice had become fairly well settled. Cases construing that section first held that the examination of a party before trial was a matter of right, whether before or after issue joined, upon showing that it related to matters material to the issue. Fullerton v. Gaylord, 7 Rob., 552 ; Glenney v. Stedwell, 64 N. Y., 120; Greene v. Herder, 7 Rob., 459.

But the courts, quite early, made a distinction between examinations had before issue joined and after. In the latter case it was granted mostly as matter of course ; in the former it was only granted upon showing that it was clearly material, that the application was made in good faith and for a proper and necessary purpose. Winston v. English, 35 Sup. Ct., J. & S., 512.

Hnder the present practice this rule has been reiterated and applied. Levy v. Loeb, 44 Sup. Ct., J. & S., 291; affirmed on appeal, 75 N. Y., 609.

The reasons assigned for this distinction are, that the process is liable to abuse, that under it the attainment of improper ends is comparatively easy, and that great difficulty exists in restricting the examination within proper limits. Of the latter, the present case furnishes a striking example. Even in cases where issue is joined the court is called upon to guard the right of the party, to the end that it may not be productive of evil Sheehan v. Turnpike Co., 28 N. Y. State Rep., 20.

The application is not to be granted as matter of course, but the court must be able to see, from the facts presented, that such •examination is material and necessary. Blocker v. Guild, 28 N. Y. State Rep., 14; Golin v. The Town of Mooers, id., 213.

When such facts are presented the party becomes entitled to have a general or a limited examination of his adversary. Herbage v. City of Utica, 109 N. Y., 81; 14 N. Y. State Rep., 845. The right, however, is subject to the discretion of the court, and in order that it may be properly exercised, it is essential that the facts appear, to the end that the court may allow the largest latitude in examination or restrict it within proper limits, according to the facts of the existing case. Jenkins v. Putnam, 106 N. Y., 272 ; 8 N. Y. State Rep., 710.

That portion of § 872 which is material to the present controversy is found in subd. 2, and requires what the moving affidavit shall contain. “If an action is pending, the nature of the action, and the substance of the judgment demanded and if the application is made by the defendant before answer, * * * the nature of the defense.”

Numerous cases have arisen under this section, and I am unable to find any where it is not made a primary requisite that the defense sought to be interposed, in its general nature, must be set out in the moving affidavit. Such is the language of the section, and the voice of authority but reiterates it.

In Muller v. Levy, 23 N. Y. State Rep., 380, it is said: “When a plaintiff, for the purpose of framing his complaint, obtains an order for the examination of a defendant before trial, he must establish by affidavit the existence of a cause of action in his-behalf.”

The facts and circumstances sought to be obtained from an adversary must relate “ and be essential to the maintenance of the action existing as alleged * * * The necessity which is the foundation of an application like this must be substantial, and must rest upon a well-defined and prima facie cause of action; not-a mere speculation, but an actual existing cause of action, sufficiently presented, at least, as to warrant the presumption of its reality.” Glen Cove Mfg. Co. v. Sutro, 24 N. Y. State Rep., 1005.

If the moving party cannot state that he has a cause of action or a defense, as the case may be, and its nature, an examination may not be had to see if, possibly, he may not develop one. The presumption which arises under such circumstances is, that the person sought to be examined is not possessed of facts which would show the existence of a cause of action or defense: An

order authorizing an examination upon such proof would violate the terms of the statute. The examination is to develop such facts, and such only, as will enable the pleader to properly frame the action or defense, known to exist, which facts, not the cause of action or defense, are without the knowledge of the moving party, but rest within the possession of the person whose examination is sought. Roberts v. Press Publishing Co., 30 N. Y. State Rep., 20; Dalzell v. Fahy’s Watch Case Co., 32 id., 96.

The fact which the cases refer'to, as resting peculiarly within the knowledge of the adversary, must be such fact as is material and relates to the cause óf action or defense alleged in the moving papers; of no other fact is the adversary presumed to have any knowledge; on the contrary, the presumption is conclusive that he is possessed of no such facts, unless the affidavit disclose the existence of a cause of action or defense to which they relate.

In the light of these rules the moving papers are to be examined. They consist of the amended complaint herein, an affidavit of one of the defendants, an affidavit of a clerk in the office of defendant’s attorneys, and an affidavit of merits. The complaint shows the action to be in ejectment, and alleges, upon information and belief, that before the commencement of the action he was possessed, as owner in fee simple, of a certain piece or parcel of land situate in the city of Buffalo, and then proceeds to describe the same. That being so possessed of said premises, the defendants, about October 1, 1889, wrongfully entered into said premises, and now wrongfully and unlawfully withhold possession thereof. The affidavit of the defendant is made upon information and belief, in its formal requisites it is in technical compliance with the requirements of § 872. The material allegations upon which the right is claimed to support the order are as follows:

“ That the nature of defendants’ defense herein is, as deponent is informed and believes, that the plaintiff has no right, title or interest in or to said premises, and has ho present right to the possession thereof as against the defendant. That the examination of the said plaintiff * * * is desired by the defendants before trial, and that the testimony of said plaintiff is material to enable them to frame an answer herein, and that without the same the defendants are not and will not be able to frame their answer ; that the facts which render such testimony material and necessary are among others, as follows:
“ 1. That the plaintiff does not state in his said amended complaint any facts which show how, or in what manner or when the plaintiff became the owner of said premises, or whether by deed or devise or otherwise, or that the plaintiff is entitled to the present possession of said premises, as against these defendants, or either of them, or how or in what manner the defendants, or either of them, wrongfully entered into said premises, or how or in what manner the defendants, or either of them, wrongfully or unlawfully or otherwise, withhold the possession of said premises from the plaintiff.
“2. That the defendants are * * * ignorant of and have no knowledge as to the above facts, or either of them. That said facts, and each of them, are peculiarly and particularly within the knowledge of the plaintiff.”

The affidavit then states that one of the plaintiff’s attorneys threatened to enter upon said premises, break the fence and take possession, and that defendants were unable to obtain from him any information as to plaintiff’s claim; that they are informed by their attorneys that a search of the records fails to show plaintiff’s interest in the premises, and further: “That deponent believes that an examination of the plaintiff will disclose facts material and necessary to enable the defendants to prepare their answer herein.”

The affidavit of the clerk adds no strength to defendants’ statement. The allegation of the complaint is to the effect that while plaintiff was in possession, giving the date, defendants wrongfully and unlawfully dispossessed him of said premises. So far, therefore, as that allegation is material to the cause of action or defense, it is quite apparent that defendants must be possessed of as much information as the plaintiff, for it must be known to them whether or not they then took possession of this land, and what acts they did in connection therewith, and to that extent no examination is necessary to add to their information. The first paragraph of the affidavit quoted shows the extent of the knowledge of defendants with respect to their defense. By that statement they say in effect that they know of no right, either of possession or title, resting in the plaintiff, to said premises, but, on the contrary, that they are entitled to the possession thereof as against the plaintiff. If we stop here it is quite clear that a denial, upon information and belief, would be all the answer necessary to raise that issue, and all the answer in their present state of knowledge which they could make, for the reason that it is all the defense which they have knowledge of existing to plaintiff’s alleged cause of action.. To properly frame that answer no examination is requisite.

The statements which follow, prior to particular specifications, contain no statements of fact; they are general allegations that the-testimony is material, without showing wherein or how, and simply lead up to the particular statements; when these are reached we find it first stated that the plaintiff fails to state in his complaint facts to show when or how he became owner, by what right he is entitled to possession, or how the defendants wrongfully entered into possession or wrongfully withhold the same.

Plaintiff was not bound so to state. His complaint is perfectly good and states a cause of action. The next paragraph is that as to those matters which plaintiff fails to state, the defendants are. and each of them is, ignorant of, and have no knowledge as to any of said facts.

If this be true, how can it be said that if the facts appealing in connection therewith, that it would constitute a defense to the action ? If it showed that plaintiff had no title or interest, and. was not entitled to the possession, it would be beneficial to defendants, for they could then deny and defeat the plaintiff with his own testimony, but if he should show perfect right and title,, how would it aid defendants to plead a defense ?

The primary difficulty is, that the defendants are ignorant of whether or not such examination would develop á defense or a cause of action. Such condition fails to show prima facia a defense, as required by the authorities; on the contrary it shows an attempt to find out whether, from the facts, there exists a defense- or not. Muller v. Levy, 23 N. Y. State Rep., 381.

It is true that the affidavit further states that the plaintiff is-possessed of all this information. Suppose he is, that does not alone give the right to a discovery; the essential fact is lacking, i 6., that there is a weakness in some one of the respects particularized of which defendants know, but of which they have not sufficient information to properly allege the facts in connection therewith. This affidavit is barren of any such statement. After setting up this lack of knowledge of a defense, the affidavit, closes with the expression of a belief that an examination will disclose facts material and necessary to enable defendants to prepare their answer herein. It could have been said from the allegations, with equal propriety and truthfulness, that such examination would disclose right in the plaintiff to maintain the action. Belief is not of the slightest importance unless founded upon statements of fact, which the court can see, are substantial, and which tend in reality to support the claim upon which the belief is founded. A careful analysis of the affidavit seems to show that the only defense known to defendants is based upon her assertion of right to possession, and this would be protected by a denial; to interpose this, no discovery is necessary, and when not necessary it will not be ordered. Martin v. Clews, 18 N. Y. State Rep., 463 ; Crooke v. Corbin, 23 Hun, 176.

It has been said that the court granting the order took notice of precise facts and exercised his discretion thereon; that, therefore, it was properly exercised, in the sense that it could not be said that it had been abused. My first impression favored this view and some examination tended to confirm it, but the same process of reasoning would have sustained nearly all the numerous orders that have been reversed, and a more thorough examination and study of the affidavit leads my mind to the conviction that there was no fact stated in the moving papers, within the rules of law applicable, upon which the court could exercise any power, discretionary or otherwise, for when the whole claim is stated it is found to rest upon the basis that the plaintiff, having brought his action, he must know the facts upon which he bases his claim, and as the defendants do not, he should be required to disclose them in order that they may see, not that they have a defense, but that possibly one may be discovered.

Ho case that I am able to find has authorized an order upon such facts, while many have condemned it. The same suggestions answer the claim that if there be an equitable defense it must be pleaded in order to be available. This is quite true, but the Code does not authorize a discovery to determine whether such equitable defense exists or not. It requires that it be known that such defense exists, where this is stated; it withholds no aid in developing the facts essential to its proper presentation.

For the foregoing reasons a reargument should be ordered.

Order affirmed and motion for reargument denied.


source: Caselaw Access Project

author:
      Patterson, J.
      Barrett, J. (dissenting)

license: Public Domain

text:
    Charlotte P. Robbins, Resp’t, v. Eliza T. Robbins, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    Malicious prosecution—Dismissal of prisoner—Probable cause.
    Defendant caused plaintiff, her daughter-in-law, to be arrested upon a charge of disorderly conduct, and she was kept in jail over -night and released the next morning after an examination had. On the trial of the action for malicious prosecution the magistrate’s memory was vague and indefinite as to the character of the dismissal, but he thought after examining the endorsement of the warrant that he had discharged her after she had promised not to molest the defendant. Held, that it was the duty of the judge to submit to the jury the question of fact as to whether the charge was dismissed and the plaintiff acquitted and whether there was an entire absence of probable cause.
    (Barrett, J., dissenting.)
    Appeal from judgment on verdict and from order denying motion for new trial

      Norman A. Lawlor, for app’lt; Ezra P. Mills, for resp’t
   Patterson, J.

—This is an appeal from a judgrhent entered upon the verdict of a jury in favor of the plaintiff in an action for malicious prosecution and from an order refusing a new trial The plaintiff was the daughter-in-law of the defendant. She was living separate from her husband, who had procured a decree of divorce against her. There was a child of the marriage and the custody of the child had been awarded to the husband; but the plaintiff claims that an arrangement was made by which she was entitled to see it at various times.

In February, 1887, the child was living with its grandparents "in the city of New York, and it appears that the plaintiff, on or about the eighth day of that month, claiming the right to do so in pursuance of the alleged arrangement, went to the house of the defendant’s husband, and there made application to see the child. A disputed state of facts as to what took place at that time is the important matter with reference to the merits of the case so far as the question of probable cause hereafter to be referred to is concerned. ' It appears that' on that day, after the plaintiff had called, the defendant made application to a police magistrate of the city of New York for a warrant of arrest against the plaintiff, and, upon a complaint made charging disorderly conduct of the plaintiff during that visit, the police justice issued his warrant, the plaintiff was taken into custody, was kept in jail over night, and was released the next morning after an examination had.

There were two issues of fact presented on the trial, and as to which the testimony was conflicting. It is so well settled in actions of this kind that, in order to entitle the plaintiff to recover, it must be made out clearly that the charge preferred was dismissed and the plaintiff acquitted, or that the prosecution has ended in her favor, and that there was an entire absence of probable cause on the part of the person preferring the charge, that it is only necessary to indicate some of the authorities on the subject. Upon the first proposition they are the following: Bacon v. Townsend, 6 Barb., 426; Hall v. Fisher, 20 id., 441; Palmer v. Avery, 41 id., 290; Clark v. Cleveland, 6 Hill, 344; McCormick v. Sisson, 7 Cow, 715, and 2 Addison on Torts, 76; and upon the second, Bulkeley v. Keteltas, 6 N. Y., 384; Besson v. Southard, 10 id., 236; Neil v. Thorn et al., 88 id., 270.

The difficulty arising in this case seems to relate principally to the condition of the proof as to the dismissal of the charges against the plaintiff before the police magistrate. According to the version given by the witnesses for the defendant the charges were not absolutely dismissed, but upon the plaintiff virtually admitting she had done wrong and promising to refrain from molesting the defendant in the future, the magistrate, as an act of clemency, discharged her from arrest and allowed her to depart, endorsing upon the warrant that the charge was dismissed.

On the part of the plaintiff, it was claimed that there was an absolute dismissal of the charge, and that it was equivalent to an acquittal.

The magistrate himself, on being called as a witness, very frankly stated that in the multitude of cases that came before him it was impossible for him to remember all the detaile of this proceeding, and that his memory was not entirely clear with reference to it, but that according to the best of his recollection the testimony, as given by the witnesses for the defendant, and which he had heard on the trial of this action, was substantially correct. On looking at the endorsement of the warrant, he found that the figures, “$300,” were written there, which would indicate that the plaintiff was to be held to bail in that amount, but that subsequently he erased that and wrote “dismissed,” and according to the record he says : “ I dismissed the proceedings against her and discharged her from custody on the promise that she would not molest Mrs. Robbins any longer, and then I endorsed the papers 1 dismissed,’ and that is the record of the case.”.

This would be sufficient to show that the charges were not dismissed in such a sense as declared the innocence of the plaintiff, thus entitling her, as to that ground, to maintain the action, but for the fact that it is perfectly obvious (as the learned judge below thought) that the magistrate’s memory was vague and indefinite, as the witness himself swore, and it was the duty of the judge to submit to the jury the question of fact arising on the proceedings in the police court.

For the record itself, in its contradiction and obscurity, was evidence of nothing as it was made out, and could not, under the facts proven, be determinate of the question of acquittal or unconditional discharge, as ordinarily a record would be, and the learned judge was quite right, therefore, in leaving it to the jury to ascertain what the result of that proceeding was as matter of fact, because there was conflicting evidence, and because, as the case was tried, it was for the jury to say whether or not the police magistrate’s memory was to be relied on in corroboration of the theory of the defendants, or whether he was mistaken respecting what transpired on the hearing before him and induced his judicial action.

That action of itself, in the state of the record, is not a justification or vindication of the defendant. Doubt was thrown upon the record, and a plain issue was presented and tried respecting it.

The case made by the plaintiff did not fail altogether to show that the defendant acted without probable cause in procuring the arrest. The question of probable cause is one of law where there ore no disputed facts. Molloy v. Long I. R. R. Co., 13 N. Y. Supp., 382; 36 N. Y. State Rep., 626 and cases there cited. But here there was a very sharp conflict respecting what transpired at the house of Captain Robbins, the husband of the defendant, at the time of the occurrence which led to the arrest; and the learned judge very properly left it to the jury to dispose of that issue on all the facts, under that conflict of testimony. The instructions given in the charge upon both points now considered, were entirely correct, and seem to have been acquiesced in by counsel on both sides.

Under all the circumstances of the case as they appear on the record, we think the judgment and order appealed from should be affirmed, with costs.

Van Brunt, P. J., concurs.

Barrett, J. (dissenting)

—I am unable to concur in the affirmance of the judgment in this case. The testimony as to what transpired before the police justice was all one way. It conclusively established that the plaintiff was not acquitted by the police justice. On the contrary,-that magistrate concluded to hold her, but finally as an act of clemency and upon her promise not to molest the defendant any further, he put his initials to a formal discharge. The testimony to this effect is overwhelming and conclusive. It is, besides, substantially uncontradicted.

When originally called by the plaintiff, the magistrate testified that his present recollection, though not clear as to all the circumstances, was that he started in to put this case under bonds for good behavior, “but that afterwards for some reason he erased that and marked discharged.”

Subsequently the defendant and a witness named Mrs. Mary Spicer testified to what actually transpired, as above indicated, before the magistrate, giving a full and detailed account of what he said to the plaintiff and of what she said to him. The magistrate was then recalled and fully corroborated the defendant and Mrs. Spicer, stating that his memory was refreshed by their testimony and by his examination of the papers in the case.

The plaintiff, though examined as a witness upon her own behalf, did not deny the truth of this testimony, nor did she refer to the subject in any way. Thus, there was no conflict whatever.

The only testimony in the least affecting the defendant’s ' version of what thus transpired was that of officer Dwyer, but even he does not attempt to contradict either the defendant or Mrs. Spicer or the magistrate.

He merely says that when he was present in the court room, which was for but a part of the time when the hearing was proceeding, he heard the magistrate make an observation somewhat inconsistent with an intention to hold the plaintiff for disorderly conduct

This officer’s testimony may have been entirely true, ana yet everything testified to by the three witnesses already named may have transpired. That single piece of testimony, therefore, was entirely insufficient to raise a conflict or to carry the case to the jury. In my judgment the comnlaint should have been dismissed.

Judgment and order appealed from affirmed, with costs.


author: Barrett, J.

text:
    Mary D. Sandford, App’lt, v. The Fourth National Bank of the City of New York et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    1 Pleading—Complaint—Alteenative belief.
    Plaintiff, "by her complaint, alleged that S. stole 100 shares of Adams Express stock from her and borrowed money thereon from F. and M., who refuse to surrender them, and that the money received by S. was deposited in defendant’s bank, and prayed that F. and M. be required to deliver up the certi: cate or pay her its value, or in case she fails against F. and M., that the bank be required to pay her the amount deposited. Held, that plaintiff had elected to pursue her stolen property, and so had no cause of action against the bank.

      2. Same—Demurrer.
    Furthermore, the complaint was demurrable as joining two inconsistent causes of action and neither affecting all the defendants.
    Appeal by the plaintiff from an interlocutory judgment of the special term, sustaining a demurrer interposed by the defendant, The Fourth National Bank of the City of New York.

      George W. Wingate, for app’lt; David Wilcox, for resp’ts.
   Barrett, J.

—The plaintiff in substance alleges that she was on the 14th of November, 1890, the owner of 100 shares of the stock of the Adams Express Company; that on that day one Albert H. Smith stole the certificate representing these shares and borrowed money thereon from the defendants, Ferris and Kimball, and that she has demanded the certificate from Ferris and Kim-ball, but that they have refused to give it to her. Upon these averments she demands judgment that Ferris and Kimball be required either to deliver the certificate to her or to pay her its value.

Having thus formulated her case against Ferris and Kimball,, she proceeds to state that Smith’s firm deposited the money which he so borrowed from Ferris and Kimball in the defendant bank, and on this latter averment she demands a further judgment that, in case she. fails in her action against Ferris and Kimball, the bank be required to pay her the amount so deposited.

This novel complaint is sought to be justified and sustained by the frank avowal that the case is troublesome and that the plaintiff is not quite sure how she is “ coming out ” in her action against Ferris and Kimball. So she thought it best to state all the facts and leave the court to work out for her a safe result This is carrying the “plain statement” heresy, begotten of the Code, that the plaintiff may simply tell his whole story in his own way and on it ask what he wants, to a somewhat grotesque extreme. The difficulty is that the plaintiff has stated an apparently good cause of action against Ferris and Kimball. That necessarily involves an election to pursue her stolen property. She cannot have both her property and its proceeds. Before she could have any possible claim against the bank she was bound to elect, and if she elected to follow the proceeds of the theft in the hands of a third party, she thus ratified Smith’s act in borrowing the money from Ferris and Kimball and acknowledged the latter’s title. But she has done the very reverse of this, and consequently she has no cause of action against the bank. At all events, there is no such thing known to the law as an alternative cause of action such as is here pleaded.

The complaint must state facts constituting some present cause of action against a defendant. It will not do for a plaintiff to say that in case of defeat with regard to one cause of action pleaded against A he will then (and not until then) have another and different cause of action against B. That is not a statement of facts constituting a present cause of action against B either at law or in equity. But further, the plaintiff has not even pleaded her doubts.

In his brief, her learned counsel says that her right to attack the title of Ferris and Kimball to this certificate is a very doubtful question of law. But this expression of doubt is not predicated of any averment in the complaint. Whether the certificate was feloniously or but fraudulently taken, whether it was in fact negotiable or non-negotiable, whether Ferris and Kimball obtained a good title to it or not, are all matters as to which the complaint evinces no uncertainty. On the contraiy, there is a clear, non-demurrable cause of action (prima faciej stated as against Ferris and Kimball. It follows that no cause of action is stated as against the bank.

If, however, the plaintiff had not pleaded alternately, but had alleged the facts as to the loan and deposit as a present and distinct cause of action against the bank, the demurrer would have to be sustained upon the second ground specified as well as upon the first. For in that case the two causes of action would have been improperly joined, they being, as we have seen, inconsistent with each other and neither one affecting all the defendants.

The interlocutory judgment appealed from should, therefore, he affirmed, with costs.

Yan Brunt, P. J., and Patterson, J., concur.


author: Van Brunt, P. J.

text:
    Henry A. Mott et al., Resp’ts, v. Jacob Oppenheimer et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    Party wall—Lard sold subject to.
    Where the owner of. property has made a party wall agreement a lien thereon by selling subject to it, every subsequent grantee takes subject to that charge.
    Appeal from judgment entered after trial at special term.

      A. I. Sire, for app’lts; Clifford A. Hand, for resp’ts,
   Van Brunt, P. J.

—The following facts appeared upon the trial. In the year 1876 one John M. Pinckney owned two lots on the south side of Eifty-ninth street, and Oliver M. Arkenburgh owned the adjacent lots tin either side, both titles being derived from a common source. While the lots were so owned by Pinckney and Arkenburgh, in the year 1876 a party wall agreement was executed between the owners, by which it was provided that either party might erect a party wall, the center line thereof coinciding with the boundary, such wall to be of a specified character and dimension and subject to extension. The agreement also provided that the other party, his heirs or assigns, should have the right to use said wall or walls, or extension, by paying therefor at the time the same should be used one-half of the then value of the parts or portions of said wall or extension so used to the party erecting said wall or extension, his heirs or assigns.

And it was further provided that the same should forever remain as a party wall, and that “ this agreement and the covenants therein contained shall apply to and bind the legal rep resentatives of the several parties thereto, and shall be construed as covenants running with the land.”

This agreement executed by Arkenburgh was recorded in the register’s office in June, 1877, and is in the possession of the plaintiffs, the successors in title of Pinckney. Pinckney conveyed his lots in March, 1877, to one Mary Bradley, who built upon them a large apartment house, the easterly wall of which was built in correspondence to the requirements of the party wall agreement, and in March, 1878, she conveyed the said lots thus improved to the plaintiffs, who also hold separate assignments of the party wall agreement. In December, 1877, after the record of the party wall agreement, Oliver M. Arkenburgh conveyed the lots owned by him to Bobert H. Arkenburgh, who in December, 1879, conveyed, subject to said party wall agreement, to one Jenks, who in November, 1880, conveyed subject to the party wall agreement to one Jennings, who in September, 1882, conveyed subject to said agreement to one Munro, who in February, 1887, conveyed subject to said agreement to Charles A. Stein. During all this time the premises were unimproved. After the acquisition by Stein of the Arkenburgh lots subject to the party wall agreement there was constructed upon them an apartment house, for which the easterly wall of the plaintiff’s house was used as 'a party wall. This construction was commenced in the spring of 1887, and continued through that year and the next. The beams were inserted in the party wall and the roof put on about the end of 1887 or in January, 1888.

Notice was given by the plaintiff to those in possession of the lot adjoining and in charge of the building thereon of the claims arising under the party wall agreement. While this building was being erected Stein conveyed to one Oppenheimer, who on the same day conveyed back to Stein. Stein again conveyed to Oppenheimer and Oppenheimer again conveyed to Stein on the same day; and finally in May, 1888, Stein again conveyed to Oppenheimer.

Neither of the deeds between these two parties mentioned the party wall agreement. Proof was offered of the value of one-half the party wall used, and upon the foregoing facts the court gave judgment impressing a lien upon the lot of Oppenheimer, the defendant, for the amount claimed to be due under the party wall agreement.

In view of the decision of this court in the case of Guentzer v. Juch, 51 Hun, 397; 21 N. Y. State Rep., 243, it does not seem necessary to enter upon any extended discussion of the rights of the parties. There seems to be no material difference between the facts of the two cases, except perhaps the fact that Oliver M. Arkenburgh, in his convéyance to Bobert H. Arkenburgh, made no mention of the agreement

But it seems to us to be entirely immaterial whether he did or did not.

It was, by the very terms of the party wall agreement, shown to be the intention of the parties to it that the charge for using th'e party wall should be a lien upon the adjoining premises. This is shown by the fact that the parties expressly provided that the covenants in respect to the party wall should be construed as covenants running with the land, they evidently knowing that without some such clause the agreement was nothing but a personal obligation. The use of this language showed a clear intention upon the part of these parties that the covenant to pay should be a lien upon the lot of the party using the party wall after it had been built by the other party. All the conveyances except the first down to Stein were made subject to this party wall agreement, the interpretation above stated being put on the agreement by these various conveyances. And it is entirely immaterial as to what the relations between Oliver M. Arkenburgh and Robert II. Arkenburgh might have been because of the failure to state anything about the party wall agreement in the conveyance, as the subsequent owners had conveyed and made this party wall agreement a lien upon the property conveyed precisely the same as in the case of Guentzer v. Juch.

Whatever may have been the motive of the various conveyances between Stein & Oppenheimer, it is entirely immaterial to inquire. Where the owner of this property had made this party wall agreement a lien thereon, by selling subject to it, as in Guentzer v. Juch, certainly every subsequent grantee takes subject to that charge.

We are of opinion therefore that the judgment should be affirmed, with costs.

Barrett and Patterson, JJ., concur


author: Patterson, J. Barrett, J.

text:
    Leonhaibt Hilsenbeck, Resp’t, v. John M. Guhring, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    Negligence—Landlord and tenant—Leaving stairway door unlocked IN DARK HALLWAY.
    Defendant, the landlord who lived on the first floor let the upper floors to tenants, suffered the lower hall way to remain unlighted. There were three doors in it, leading to different places, one opening upon a stairway. A relative of one of the tenants while visiting them opened the stairway door by mistake and fell, sustaining severe injuries. In an action to recover damages therefor, Jleld, that a refusal by the court to charge a request of the defendant " that it was not negligence that the defendant left the door unlocked at the time of the accident,” was not error.
    Appeal from judgment for plaintiff granted at circuit, Hew York county.

      William J. Gaynor, for app’lt; Alfred Steckler, for resp’t.
   Patterson, J.

—On the first trial of this action a nonsuit was directed and on appeal to the general term the judgment entered thereon, was reversed. In the opinion of the. court a full recital of all the material facts was made, and comparing it with those now appearing on the record of the second trial, no substantial difference is perceptible. There being, therefore, no qualifying factors presenting the rights of the parties in any other aspect than that which was fully considered by the court on the former appeal, we see no reason to change or modify the decision then made, which was that the case should have been submitted to the jury.

The learned judge who presided at the new trial evidently considered himself bound by the conclusion of the appellate court and his rulings are strictly on the lines of the opinion referred to .and in complete accord with what was there declared to be the law of the case. It was held that while the defendant could only be made liable by establishing the fact that he was guilty of some •omission of duty from which negligence might be imputed, yet the evidence presented a case from which the jury might deduce that inference. Hence the refusal to dismiss the complaint was ■correct. It was for the jury to pass, upon the facts, and that has now been done under proper instructions.

But an exception was taken to a refusal of the judge to charge a request of the defendant, and that is that it was not negligence that the defendant left the door unlocked at the time of the accident. This was intended to meet on the proofs, the question of the omission of the defendant from which negligence might be inferred.

The learned judge refused to charge the request in totidem verbis, and very properly so. It was in effect asking the court to instruct the jury on one particular circumstance alone, that they must find a verdict for the defendant. He did tell them that they must say affirmatively under all the circumstances, whether the defendant was negligent in leaving the door unlocked, in connection with the testimony as to the darkness of the hallway and the other facts of the case, and that was as favorable a submission .as the defendant was entitled to.

The judgment should be affirmed, with costs.

Van Brunt, P. J., concurs.

Barrett, J.

—I feel bound by the previous decision in this •case, although I confess that if I had then been a member of the general term I should have dissented. In my opinion, Camp v. Wood, 76 N. Y., 92, is plainly distinguishable from the case at bar. There the landlord had let his premises for a dance, to which all persons who applied were admitted on payment of an entrance fee. Thus the plaintiff there was present by invitation and was not a bare licensee. Then, too, the door through which the plaintiff left the house whereby he fell into the street below was so situated that persons unfamiliar with the premises might, in the night time, have mistaken it for the street door. The door through which the plaintiff fell in the present case was inside the house and was one of three doors leading from a hall to different places within. The plaintiff was a relative of one of the tenants, and a mere visitor.

I think the cases of Gaffney v. Brown, 150 Mass., 479, and Wilkinson v. Fairrie, 1 Hurlstone & C., 633, are applicable, and that the plaintiff was properly nonsuited when the case was first tried.


text:
    In the Matter of the Estate of Solomon Adler, Deceased.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    1. Executors and administrators—Deposit or bunds to joint credit —Code Civ. Pro., § 2602.
    The surrogate is justified in denying the application of an executor to have funds of the estate deposited to the joint credit of the executors, as authorized by Code Civ. Pro., § 2602, where it does not appear that they are in jeopardy and where no practical good would be accomplished by so doing, and nothing whatever appears to justify any apprehension of • mismanagement, misappropriation or danger to the estate.
    2. Same.
    The applicant must make out a case calling for the surrogate’s interference and showing that the protection of his rights and interests, or of the rights and interests of others, require the favorable exercise of the discretion conferred. With the exercise of that discretion this court will not interfere unless it is apparent that-it has been abused.
    Appeal from an order of the surrogate denying the application of Caroline Schwab, executrix of the last will and testament of Solomon Adler, deceased, for an order requiring her co-executors, I. Richard Adler and Leon N. Adler, to deposit the funds of the estate to the joint credit of said executrix and executors.
    Evarts, Choate & Beaman, for app’lt; T. C. Ennever, for resp’ts.
   Barrett, J.

—We think that the learned surrogate wisely exercised the discretion conferred upon him by § 2602 of the Code of Civil Procedure in denying this application. It is quite evident that the funds of the estate are not in jeopardy and that no practical good would be accomplished by subjecting them to the additional control of the appellant. The papers show a lack of harmony between the appellant and her co-executors, but nothing whatever to justify any apprehension of mismanagement, misappropriation or danger to the estate. The appellant seems to think that the order applied for was substantially her legal right, and that she was not bound to show any special facts or circumstances calling for the exercise of the discretion conferred upon the surrogate by the section in question. At all events, the facts which she did show were entirely insufficient, and even these were either denied or explained. But in her general view of what is essential successfully to invoke the discretion thus conferred we think she is mistaken.

Section 2602 is new, and it was intended thereby to provide a summary remedy in cases where prior to its enactment thé surrogate was powerless to interfere. Formerly the only remedy was in equity, and such remedy was limited to cases where mismanagement and misconduct jeopardizing the interests of the beneficiaries under the will was shown. ■ Thus, in Burt v. Burt, 411ST. Y., 46, it was held that a decree in favor of one executor requiring his co-executor to place the securities which were in the latter’s possession belonging to the estate in the custody of a bank, and to deposit in such bank all money thereafter collected, to be drawn out only on their joint check, was not authorized by the fact that the co-executor maintained exclusive manual possession of such securities. It may be that under the wide discretion conferred by this new provision the surrogate is not limited to cases within the rule thus laid down, but certainly it is not a matter of course to require such joint deposit The applicant must still make out a case calling for the surrogate’s interference and showing that the protection of his rights and interests, or of the rights and interests of others require the favorable exercise of the discretion conferred. With the exercise of that discretion we cannot interfere; certainly not unless it is .apparent that it has been abused.

The appellant contends that the rules which govern on appeals from discretionary orders of the special term of our own court are equally applicable to appeals from similar orders of the surrogate’s court. This, however, is not the case. It is true that on appeals from the special to the general term of our own court we are bound to review upon the merits all orders resting in discretion. Hanover Fire Insurance Company v. Tomlinson, 58 N. Y., 216; Jemison v. Citizens' Savings Bank, 85 id., 546.

That discretion, however, is the discretion of the supreme court, whether exercised in one of its branches or in another. It is the same court and the same discretion throughout. But this rule is not applicable to appeals from another and a distinct tribunal such as the surrogate’s court There our appellate authority is confined to errors of law, or to matters of substantial right which are not dependent upon the discretion of such other court. Matter of Selleck, 111 N. Y., 289 ; 19 N. Y. State Rep., 601. Where, as here, the surrogate is expressly clothed with discretion, the utmost that can be claimed is that we may review his action so far as to ascertain whether there has been an abuse of discretion and a violation of justice.” See opinion of Gray, J., p. 290. This cannot possibly be claimed in the present case. On the contrary, as suggested at the outset, we think the discretion was wisely exercised.

The order appealed from should, therefore, be affirmed, with costs.

Van Brunt, P. J., and Patterson, J., concur.


author: An Brunt, P. J. Barrett, J. Patterson, J.

text:
    Manufacturers’ National Bank, Resp’t, v. Dudley Hall et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    1. Attachment-xRon-resident plaintiff—Affidavit by resident attorney—Code Civ, Pro., § 636.
    An affidavit made by a resident attorney of non-resident attaching creditors, which he states is founded on telegrams received from them authorizing the attachment, and giving amount due and plaintiffs’ names, is insufficient, as affiant could have no personal knowledge as to whether plaintiffs were entitled to recover the sum stated therein, over and above all counterclaims known to affiant.
    2. Same—Affidavit of officer of corporation—Requirements of.
    The affidavit of the president of a manufacturing corporation as to the non-existence of counterclaim, which does not state that he had any connection with its active business, justifies the inference that when he swears positively with regard to a corporate transaction, he speaks of his own personal knowledge.
    (Van Brunt, P, J., dissenting.)

      Appeal from order denying motion by subsequent alleged, lienor to vacate attachment

      Joseph Kunzmann, for app’lts; Geo. M. Pinney, for resp’t.
   An Brunt, P. J.

—The attachment of the plaintiffs was obtained against the defendants upon the ground that they were non-residents, and was founded upon the affidavit of one George M. Pinney, Jr., who stated that he was the attorney for the plaintiff in this action; that it was a foreign corporation located in Massachusetts, and that the action was brought to recover the amount of a certain promissory note of $5,000, which was due and unpaid, and that said sum was due from the defendants to the plaintiff, over and above all counterclaims known to the plaintiff.

The affiant further stated that he had made the statements in the affidavit upon information received by him, contained in two. telegrams, which were annexed to his affidavit; that they were received from one William A. Gasten, who was . an attorney and counselor at law, and a member of a firm doing business at Boston, Mass.

The first telegram was as follows:

“Has Dudley Hall & Company, one fifty-two Front street, a stock of goods, and can you get an attachment on it if we send on their note. We fear that they may assign here. Answer; I will send particulars.
“Wit. A. Gasten.”

The second telegram was as follows:

“Assignment made here. Attach debtors property at one ninety-two Cherry street, Hew York, public warehouse, on note overdue, five thousand dollars, owned by Manufacturers’ Hational Bank. Debtors are Dudley Hall and Dudley C. Hall, both of Medford. Will write to-night.
“W. A. Gasten.”

It is perfectly apparent that neither Gasten, the author of these telegrams, nor the attorney who made this affidavit, had any knowledge whatever, as to whether there were any counterclaims existing in favor of the defendants against the plaintiff.

Unless the requirements of the Code are to be treated as a farce, it is quite clear, where it is apparent that the parties have no personal knowledge of the transaction, that such an affidavit, coming from such a source, simply because the affiant swears to-the fact, does not authorize the court to act upon the affidavit. And if this were the only question involved in the appeal, there' would be no difficulty as to its disposition.

But it is urged upon the part of the plaintiff that if the plaintiff’s papers are bad, the appellants are in an equally unfortunate condition. The affidavit, upon which their attachment was obtained, was made by Mr. John F. Pupke, who swears that he is. the president of the plaintiff, a corporation organized under the laws of the state of Hew Jersey, the affidavit being made on the 10th of March, 1891. It then alleges the sale of goods in February, 1891, by the plaintiff to the defendants, which was to be paid for in cash; that no part thereof has been paid, and the plaintiff is entitled to recover the amount thereof over and above all counterclaims known to the deponent or to the plaintiff.

The affiant nowhere states that he had any knowledge of the financial affairs of the appellant corporation, or that he had any connection with its active business, or that he ever saw its books or accounts, or that he had any such relation to the business of the corporation as would justify the inference of knowledge as to its pecuniary affairs. We do not know, -even from the papers, as to whether he was connected with the company at the time of the transactions alleged in the affidavit As was said in the case of Buhl v. Ball, 41 Hun, 64; 2 N. Y. State Rep., 270, this is a summary provisional remedy to take from a debtor the custody of property, and to support the remedy the provisionsof the statute must be substantially complied with; referring to the provision that it must be shown by affidavit, to the satisfaction of the judge granting the attachment, that the plaintiff is entitled to recover the sum stated therein over and above all counterclaims known to him. Such facts must be presented to the court, that they can see from the necessary connection of the affiant with the business of the corporation applying for the attachment that he is likely to know whereof he is making a verification.

In the case of the cashier of a bank it has been held that because of his position he is presumed to be acquainted with the financial affairs of the corporation of which he is an officer. But in the case of a trading corporation, with nothing to show what the duties of the president are or that he has any knowledge whatever of the fiscal affairs of the corporation or of its business transactions, we think the court cannot assume simply from the fact of his being the president that he has any personal knowledge in respect to the transaction whereof he is speaking; and if he has no personal knowledge, then the rule is clear that he must set out the sources of his information so that the court may see whether his belief is justified.

Upon the whole case, therefore, we are of opinion that the order appealed from should be affirmed, with ten dollars costs and disbursements.

Barrett, J.

—I concur unreservedly with the presiding justice as to the first attachment. As to the junior attachment, however, I am unable to concur with the views expressed with regard to the affidavit of Mr. Pupke, the president of the company. I think that the affidavit of the president of a corporation, wherein he swears positively to the sale and delivery of goods by the corporation to a defendant, is sufficient prima facie to warrant the granting of an attachment. It imports personal knowledge of the facts sworn to, there being no intimation in the affidavit that it is based upon any element of information, and the president’s position as the chief executive officer of the company certainly justifies the inference that when he swears positively with regard to a corporate transaction he speaks of his own personal knowledge.

I concur in the result, however, for the reason that Mr. Pupke does not state that he was president of the company at the time the goods in question were sold. I agree that a person who was not president at the time of the corporate transaction presumptively speaks of it upon information, and that the presumption of personal knowledge only arises when he swears positively to a corporate transaction occurring at a time when he makes it clear that he was president

Patterson, J.

—I also agree with the presiding justice respecting the first attachment, but I do not concur in what is said in his opinion respecting the subsequent one, so far as it relates to the competency of an officer of the corporation to make the affidavit.

In that respect I am in accord with the views expressed by Mr. Justice Barrett But the affidavit of Mr. Pupke is defective and insufficient in substance, in that it does not state his relation to the corporation at the time the goods were sold, and I, therefore, agree that the order must be affirmed.

Order affirmed, with ten dollars costs and disbursement.


text:
    Thomas J. Robinson, Resp’t, v. Arthur G. Wood, Individually and as Receiver, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    1. Supplementary proceedings—Receiver—Seizing property without authority—Injunction.
    Defendant, as receiver in supplementary proceedings, took possession of the real estate conveyed by the debtor to a third party without any adjudication establishing the invalidity of the deed and against the debtor’s will, under an order of the city court granted in the supplementary pro- • ceedings. Paintiff paid off the judgments, and with defendant’s consent took a deed from the grantee of the debtor, and the receiver made his accounting as receiver and was discharged. Subsequently he caused his receivership to be extended over several judgments and also over a claim upon which no judgment had been obtained, and commenced proceedings to dispossess the plaintiff’s tenants. Held, that the whole course of the defendant was characterized by fraud and deceit; that the court had no jurisdiction to make the order directing defendant to take possession of the property, the title being in a third ¡party, and that the judgment restraining defendant from interfering with plaintiff’s possession of the real estate was proper.
    3. Same—When receiver charged personally with costs.
    The interference of the defendant with the possession of the plaintiff was absolutely inexcusable and in bad faith, and he was rightly charged personally with costs.
    Appeal from judgment entered upon decision rendered at special Eerm.

      Charles B. Meyer, for app’lt; Arnold & Greene, for resp’t.
   Van Brunt, P. J.

—This action was brought to restrain the defendant from interfering with the plaintiff’s possession and enjoyment of certain real estate in the city of New York.

Tt appeared upon the trial that the premises in question were' originally owned by one Susan Sullivan who conveyed them in April, 1889, to her aunt, Annie Moriarty, for the expressed consideration of $1,000, and subject to incumbrances amounting to $257,000. This deed was recorded in the following December. On the 5th of December and before the recording of the deed the defendant was appointed by the city court of Mew York receiver of the rents and profits of the premises in question in proceedings supplementary to execution upon judgments recovered against the Sullivans in the Twelfth Ward Bank in July and October, 1889. The defendant thereupon claiming that the conveyance to Annie Moriarty by Susan Sullivan was fraudulent as against subsequent creditors of Susan Sullivan, obtained possession of the premises and collected rents from some of the tenants for a certain period of time. The receivership of the defendant was subsequently extended to other judgments. The receiver obtained possession, without any legal proceedings against Annie Moriarty and without her consent and against her will; she endeavored by an application on motion to the city court to obtain an order forbidding him to interfere with her property. This motion was denied with leave, however, to take such other proceedings to establish her rights as she might be advised.

Owing to certain arrangements for the compromise of the debts of the Sullivans and by and with the consent of the receiver, Annie Moriarty delivered to the plaintiff a deed of the premises which was accepted and recorded by the plaintiff in January, 1890, at which time the plaintiff entered into possession of the premises and thereafter remained continuously in possession of the same down to the time of the commencement of this action.

The plaintiff paid to the receiver the entire balance due on the judgments then represented by the defendant as such receiver, together with his commissions, expenses, and counsel fees, whereupon the receiver presented his account to the court, and on the 27th of January, 1890, an order was made passing his accounts, discharging him as such receiver and releasing the sureties upon his bond with respect to each and all of said judgments.

The plaintiff accepted said deed and entered into possession of the premises, and paid all of said claims upon the faith of statements made previous to the acceptance of the deed by the attorney for such receiver that said claims were the only claims known to said receiver and that upon payment thereof the same would be duly discharged, and the plaintiffs possession of said premises would not be disturbed by said receiver.

On the 22d of January an order had been entered extending the receivership to another judgment; on the 24th of January the receivership was further extended to another judgment; on the28th to another; on the 31st of January to another, and on the 3d of February the receivership was extended over a claim upon which judgment had not been rendered and which was still at issue. None of’ the papers on which these last three orders were obtained disclosed the fact that the receiver had accounted and been discharged. All the judgments that existed prior to the delivery of the deed to the plaintiff and also certain subsequent judgments were paid in full. The defendant under the claim of authority under the appointments made subsequent to the delivery of this deed, demanded rent from the plaintiff’s tenants, sent notices to them and finally commenced summary proceedings to dispossess them in the district court. Upon this the plaintiff commenced this action, after having procured leave from the court in which the receiver was originally appointed for an injunction to restrain the action, of the defendant.

The facts of this case show the most remarkable instance of illegal usurpation upon the part of a person who claimed to be an officer of the court that has ever come under our observation. Without any adjudication establishing the invalidity of the deed from the Sullivans to Moriarty the receiver takes possession of her property; under an order of the court directing him to do so it is true, but which the court had not the slightest authority to make, as in supplementary proceedings against the Sullivans, the validity of conveyances by them to parties not before the court could not be adjudicated upon, and that was what was attempted to be done by the order in question. We further find that this defendant went so far as to procure himself. to be appointed receiver in an action in the court of common pleas before there had been any judgment; a receiver in supplementary proceedings before judgment.

This certainly was, prior to this, an unheard of procedure. And according to the findings of the learned court which were fully borne out by the evidence, the whole cause of the defendant was characterized by fraud and deceit and representations made in regard to the amount of debts which were known at the time to be untrue.

It is claimed upon the part of the appellant that the plaintiff was not in possession of the premises, but that the receiver was. The learned court has found upon sufficient evidence that the plaintiff went into possession of these premises by and with the consent of the defendant; and the question as to whether these conveyances were made with intent to hinder, delay and defraud creditors cannot be considered in this action.

The claim that the deed to Robinson was absolutely void, and that he could acquire no rights thereunder which entitled him to maintain this action, is entirely without foundation.

The court found upon proper evidence that the premises were •not held adversely, but that possession was surrendered to Robinson by the defendant.

The claim that when the court' directs its receiver to take possession of property, it will not permit him to be sued by one claiming the property, is certainly somewhat startling. In the case at bar, the court had no jurisdiction whatever .to make the order directing him to take possession, the title to the property being in'somebody other than the judgment debtor.

Upon the whole case, therefore, there seems to be no reason whatever to interfere with the judgment rendered. The interference of the defendant with the possession of this plaintiff was absolutely inexcusable and in bad faith, and he was, therefore, rightly charged personally with costs.

The judgment should be affirmed, with costs.

Barrett and Patterson, JJ., concur.


text:
    Modesto Pineiro, Resp’t, v. Richard Gurney, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    1. Principal, and agent—Partnership—Authority of agent.
    Plaintiff acted as agent in Spain for B. & Co., shipping merchants of New York, paying port charges and disbursing vessels chartered by the firm for out and home voyages. B. & Co. dissolved June 14th, and plaintiff received notice thereof on the 80th, having on the 23d paid out moneys on account of a vessel chartered by the firm prior to its dissolution, and by which the firm profited. Held, that the item was properly allowed to plaintiff.
    2. Same.
    On the 9th and 31st of July plaintiff paid port charges on vessels, he not having had any instructions or authority, and being only a special agent. Held, that he took the risk of the ratification by all parties, and the item should not have been allowed him.
    •3. Same.
    A draft for £100, sent to plaintiff by the new firm, which had assumed the indebtedness of the former partnership, was appplied to that of the new firm incurred after the dissolution. Held, error; that it being sent as ■“further on account,” the intention was to apply it on the general account and for the benefit of the retiring partner.
    Appeal by defendant Gurney from a judgment rendered upon the decision of a judge at circuit, the jury having been discharged pending the trial.

      Hobbs & Gifford, for resp’t; Henry D. Hotchkiss, for app’lt
   Barrett, J.

—The plaintiff is a merchant doing business at Santander, in Spain. The defendant Gurney is the sole surviving member of the firm of Ruger Brothers & Company, who were shipping merchants in this city. The action was brought to recover a balance of £234, 2s. Id. which the plaintiff claimed to be due him by Ruger Brothers & Company. He had acted as the agent of this firm at Santander for some time prior to its dissolution, paying port charges and disbursing vessels which the firm had chartered for out and home voyages. The substantial dispute arises with regard to disbursements made by the plaintiff, subsequent to the dissolution of the firm, and there is also a dispute with regard to the proper application of a payment made after such dissolution. The firm was dissolved upon the 14th day of June, 1883, Gurney retiring and the Rugers continuing the business. The plaintiff received notice of the dissolution upon the 30th of the same month. The notice informed him that Gurney had retired from the firm, and that the business would be “ carried on again ” by William and Emil Ruger, “ under the former firm of Ruger Brothers.”

There are three items in the account to which special objection is now taken by Gurney. We will deal with them seriatim. The first is a sum of £101, 11s. 5d. paid by the plaintiff on the 23d day of June, 1883, for port charges on account of a vessel called the Acturus, which had been chartered by the late firm some time prior to its dissolution. We think this item was properly allowed to the plaintiff, for the reason that, when he made the payment, he had not yet learned of the dissolution of the firm, and although the payment was not in strict accordance with his instructions, it was a payment made for the benefit of the firm and by which it profited.

The second item is a sum of £35, 10s. Id. paid by the plaintiff on the 9th day of July, 1883, for port charges on account of a vessel called '“Kennard.” This vessel was also chartered prior to the dissolution of the firm. The payment, however, was made without any instructions or authority whatever. The plaintiff was not the general agent of the firm. He was specially employed and received distinct instructions with regard to each vessel. And, further, he acknowledged in his letter to the firm of July 9,1883, that he made the payment without orders. He did this after he had received notice of Gurney’s withdrawal. It was, of course, competent for the new firm to ratify this payment and to bind themselves therefor, but they could not bind Gurney, who no longer had any interest in the transactions of the old firm. According to Gurney’s uncontradicted testimony, the Eugers were to liquidate all outstanding matters; to receive all amounts that were coming in and pay out what was due, and to leave all that was outstanding.” It is true that the plaintiff was not informed of the terms of dissolution, but when, with notice of the fact, he ventured to make payments without authority, he certainly took the risk of their ratification by all parties. This item should not, in our judgment, have been allowed to the plaintiff as against Gurney.

The third item is a similar payment of £75 3s. 6d. made on account of a vessel called the “William Phillips.” This payment should also have been disallowed. It was made on the 31st of July, 1883, over a month after the plaintiff had been notified of the dissolution. And it was made in disregard' of instructions. The instructions were, in case the amount entrusted by the firm to' the captain was insufficient to pay the port charges, “ to take an advance on the homeward freight for the balance.” Finding that this advance could not be obtained, the plaintiff paid the deficiency himself and charged it to the firm in his account. This was unauthorized, and the plaintiff could not thus bind Gurney after notice of dissolution. His doing so was in conflict with the orders given while Gurney was yet a member of the firm, and, if those orders had been obeyed, the advance would have been a lien upon the freight and would have been settled upon the arrival of the vessel at this port It was well enough for the Eugers, who were “ to receive all amounts that were coming in,” to ratify this payment, for it was immaterial to them whether they repaid the port charges to the plaintiff or repaid advances to an equivalent amount upon the homeward freight Indeed, upon the principle already suggested with regard to the Acturus, the firm would have been liable for this payment, as it was made for its benefit and it profited thereby. But this principle would certainly not apply to Gurney after notice of dissolution.

The remaining question is as to - a credit of £100, of date, October 27, 1883. It was disallowed to Gurney and applied to the indebtedness incurred by the Eugers after the dissolution. This, we think, was erroneous. By the very terms of the letter in which it was remitted, the Eugers speak of the drafts as ■ u further on account.”

The plain intention was to apply it on the general account, there being no break between the firms of Eugers Brothers & Company and Euger Brothers. In fact, the business went right on as before. The Eugers, as we have seen, had assumed all the outstanding affairs of the old firm and had agreed to pay its debts. They simply continued the business, and there was but one account, namely, that represented by the bill of particulars in this case. We are not altogether satisfied with the disposition made of certain other items of the account, but as the allowance to Grurney of this credit of £100 and the disallowance of the second and third items of debt suffice to wipe out the balance allowed by the trial court, we need not consider the case further.

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

Van Brunt, P. J., and Patterson, J., concur.


text:
    Andrew Langdon et al., Resp’ts, v. New York, Lake Erie & Western Railway Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

    1. Pleading—Complaint—Separate statement of causes of action.
    Where a series of transactions are sought to be set out in a complaint by a shipper against a railroad for discriminating against him in the transmission of merchandise between certain periods of time, it is. not necessary to state in detail transactions which are grouped under a general head.
    2. Same—Motion to make more definite and certain.
    The complaint alleged that the services rendered to plaintiffs and those rendered to other shippers were the same, and were rendered upon like conditions and under similar circumstances. Held, that the complaint should be made more definite and certain in this respect.
    3. Same,
    Defendant objected to the complaint that the charge that at certain seasons defendant had failed to furnish to plaintiffs a due and reasonable quota of cars, etc., was too indefinite. Held, that defendant’s remedy in this respect was to demand a bill of particulars.
    Appeal from order denying defendant’s motion to make the complaint more definite and certain.

      B. H. Bristow, for app’lt; Benjamin S. Harmon, for resp’ts.
   Van Brunt, P. J.

—The defendant in this action claiming that several causes of action are set out in the plaintiff’s complaint, sought to have them separately stated; and to have other allegations of the complaint, by which the causes of action were set out in general terms, made more definite and certain.

It is undoubtedly true that a series of transactions are sought to be set out in the complaint, and form the basis of the recovery. But we do not understand that this necessarily requires a separate statement of each transaction.

A party sues to recover the purchase price of goods sold on different dates and upon different occasions. He states one cause of action covering the whole period, although, perhaps, each transaction might be a separate sale. And it has never been held that it was necessary to set out in his complaint, distinctly and separately, each cause of action. So in an action for a continuing trespass where a cause of action arises every day that the trespass continues, an allegation of the continuance of the trespass between certain dates is all that is necessary in order to authorize a recovery of the damages which may have been sustained in any way because of the trespass between those dates. So in the case at bar it is claimed that the plaintiffs’ rights were infringed by discriminations made against them by the defendant in the transmission of merchandise between certain periods of time. Now, if the defendant desires to know the precise times and circumstances at which these discriminations were made, that seems to be the office of a bill of particulars in which can be set out with particularity the claim made by the plaintiffs; and it is not necessary in a complaint in a case like the one at bar to state more in detail transactions which are grouped under a general head.

It is also claimed that the complaint should be amended so as to set out, with definiteness and certainty, the facts constituting the causes of action alleged. There seems to be some substance in the objection to the complaint in this particular.

It is alleged that the services rendered to the plaintiffs and those rendered to other shippers were the same, and were rendered upon like conditions and under similar circumstances.

It is apparent that this is a deduction derived from a comparison of the facts attending the plaintiffs’ shipment with those attending the shipments of others. There is no intimation as to what the conditions and circumstances of those shipments were, or any particulars in regard thereto from which the defendant can possibly imagine what the plaintiffs claim the condition and circumstances to have been.

It would seem, therefore, that the complaint should be made more definite and certain in this respect in order that the defendant may be made aware of the conditions and circumstances which form the basis of the charge.

The objection to the complaint, wherein it charges that at certain seasons the defendant has failed to furnish to the plaintiffs a due andreasonable quota of cars, etc., does not seem to require that it should state more in detail the facts going to make up this cause of action. Whatever precision the defendant may be entitled to under this branch of the case may be obtained by a bill of particulars showing the details of the claim.

We think, however, upon the point already suggested the complaint should have been made more definite and certain, and that the order should be reversed in that respect, and the motion to that extent granted, with costs to the appellant of this appeal to abide the final event

Patterson, J., concurs.


text:
    John Glen, as Trustee, Pl'ff, v. David J. Garth et al., Impl’d, Def’ts.

      (Supreme Court, General Term, First Department,

      Filed June 26, 1891.)

      1. Stocks and stock bbokebs—Stock tbansfebbed without authobity TO BBOKEBS’ NAMES—LIABILITY.
    Defendant’s firm were brokers in New York, and Garth was requested by F., a customer, to purchase certain shares of stock upon a margin, and he agreed to carry them upon a margin for F. The brokers in Baltimore who purchased the stock there sent the certificates to defendant’s firm and they remitted to the Baltimore firm. The latter, instead of following the invariable custom and sending them with a blank assignment and power of attorney endorsed thereon, had the shares transferred upon the books of the company to the names of defendant’s firm. Defendant testified that this was the only case where such a thing had been done. Garth notified F., and required him to take the stock up and have it transferred from the firm’s name, and returned it to the Baltimore brokers with instructions to sell, but when they did so, the books of the corporation were closed and it was too late to make the transfer, and the company assigned the next month. Feld, that the defendants never became stockholders of the corporation represented by the plaintiff, and were not responsible for the unpaid assessments upon the stock.
    Exceptions ordered to be heard in the first instance at general term, a verdict having been directed for the plaintiff.

      John Howard and Burton N. Harrison, for pl’ff; William W. MacFarland and William C. C lopton, for def’ts.
   Barrett, J.

—A great many important questions are presented by this appeal, but in the view which we take of the primary fact it will not be necessary to consider them.

Upon a careful review of all the evidence adduced upon the trial, we are of opinion that the defendants never became stockholders of the corporation represented by the plaintiff, and, consequently, are not responsible for the unpaid assessment sought to be recovered in this action.

The shares in question were never purchased by the defendant’s firm (Harrison, Garth k Co.). This firm was engaged in the business of bankers and brokers in stocks, bonds and securities in this city. They had a customer named Ficklin, who desired to purchase these shares upon a margin. Mr. Garth was the particular member of the firm who dealt with Ficlkin. Mr. Garth agreed, as it is termed, to carry these shares for Ficklin; that is, to pay for them as he, Ficklin, purchased them, upon receipt of a sufficient margin to secure the firm against loss. This stock was not listed upon the Hew York Stock Exchange and was not dealt in here, but Ficklin told Garth that he could pick the shares up at Baltimore and other places. The company was a Virginia corporation. Some time after the making of this arrangement several lots of these shares were purchased, doubtless upon the orders of Ficklin, by McKim & Co., brokers, in Baltimore, and in accordance with Garth’s promise to carry these shares, Harrison, Garth k Co., settled McKim & Co.’s account for what they had disbursed in the transaction. The certificates of stock were of course sent on from Baltimore by McKim & Co. to the defendant’s firm as their security for the advance thus made to them for Ficklin. The invariable custom under such circumstances is for the seller to deliver the certificates to the broker with a blank assignment and power of attorney (to transfer upon the books of the company), endorsed thereon. Such a thing as placing stock in the name of the firm, when thus acting as brokers, had never once occurred in all its business life. To this Mr. Garth explicitly testified as follows:

“ Q. Have you a recollection now of all the various certificates representing stock which came to the firm of Harrison, Garth & Company, bought by that firm ? A. Oh, no; there were millions of dollars worth.
“Q. Am I correct in understanding you to swear deliberately that this is the only instance of all the stock dealt in by Harrison, Garth & Company in which the certificates were put in the name of the firm, Harrison, Garth & Company? A. You distinctly understand me to say that, so far as my recollection is concerned, that was the only instance.
“Q. That is, so far as your recollection is concerned ? A. Yes, sir; we dealt in stocks, bonds and gold as other brokers did; and never had them transferred in our name.’

Instead of following this custom and forwarding the ordinary and proper documents, McKim & Co., had the shares transferred upon the books of the company into the names of Harrison, Garth & Co., and it was the certificates naming this firm as the owners of the shares which were sent on to the defendants. This act of McKim & Co. was wholly unwarranted. It was not only contrary to precedent, but as matter of fact was entirely unauthorized. The moment Mr. Garth observed the form of the certificates he repudiated the transfer to his firm and did everything in his power to effect a retransfer. He knew that the stock was assessable, and that liability might result from his acceptance of certificates made out in the name of his firm. At the same time he could not prudently return the certificates to the company and demand their cancellation, for the reason that he had advanced his money upon the security of the shares and he was not called upon to stand upon Ficklin’s single responsibility. He did all that he could do under the circumstances to disaffirm the act of McKim & Co. He notified Ficklin and required him to take the stock up and have it transferred from the firm’s name. He also returned the certificates to McKim & Co., endorsed in blank, with instructions to sell the shares and have them transferred from the names of the firm. This was, in fact, the only way to get the shares out of the firm’:: name and at the same time secure their advances. There was no delay or hesitation. The disaffirmance followed at once upon notice of the unauthorized act. Whether or not McKim & Co. obeyed the defendants’ orders is immaterial. The unauthorized act proceeded from McKim & Co. It was only necessary for the defendants to repudiate that act. They did so in the only practical way which the circumstances permitted. McKim & Co. had transferred the shares to them without right. They at once returned to McKim & Co. the evidence of such unauthorized transfer with a retransfer in blank. What more could be done? Nothing, that we can see. "In our judgment, the retransfer in blank operated in accordance with the defendants’ intention, and their disaffirmance of the unlawful transfer was effectuated thereby. An attempt was made upon the trial to prove that Harrison, Garth & Co. dealt directly with McKim & Co., but the testimony adduced by the plaintiff was quite insufficient to raise a genuine conflict on that head. It is true that the book produced by McKim (and there was but one such book produced) specified Harrison, Garth & Co. as the persons for whose account they made the purchases. But this was entirely consistent with the actual facts as stated by Mr. Garth. If Ficklin had ordered the purchase and directed the stock to be sent to Harrison, Garth & Go., to be paid for and carried on his account, the entry would properly have been made as it was. Mr. McKim testified that the orders to purchase and sell the shares were given to his firm “verbally either by Mr. Harrison or Mr. Garth.” This testimony is for several reasons, entirely consistent with respect for Mr. McKim, quite unreliable. The very fact that he thus speaks in the alternative is conclusive of his inability to recall the particular individual who gave the orders. It will be observed that he speaks of what happened over twenty years ago, and that he failed to produce a letter or paper or book, except the single book to which we have referred, in corroboration of his statement. Then, too, the fact stated was highly improbable. He acknowledged that he knew but little of the defendants’ firm. He was asked this question:

“Did you know the firm of Harrison, Garth & Co., of New York, in the year 1866; and had your firm any transactions with them; and what was the nature of those transactions ? ”

To which he answered as follows:

“ I don’t think I did. We thought the firm was of Richmond. My remembrance is that they were from Richmond.”

He was also asked whether the person who gave the orders was thin or stout, to which he answered:

“ My remembrance is that he was thin.”

It appeared quite clearly that Mr. Harrison did not come within this description, but that Ficklin and Garth did. Now, Garth testified that he never saw any member of the firm of McKim & Co. in his life; that he never knew them and never was in their house; that he never had any personal communication with them, and that Ficklin was in Baltimore at this very time. It is grossly improbable that a busy New York broker like Mr. Garth should have left his business in this city and gone to Baltimore to give McKim & Co. a verbal order to purchase these shares, and that later he should again have wasted his time on a similar errand with regard to their sale, when pen, ink and paper would have answered every purpose. It is highly probable that these orders were given by Ficklin, who was “picking the shares up ” in execution of the purpose 'which he originally disclosed to Mr. Garth, but whether that inference be legally justifiable or not, certain it is that the orders were not given by Harrison, Garth & Co. It is quite apparent, therefore, that the attempt to exclude Ficklin from these purchases or to make the transaction one of purchase and sale directly as between McKim & Co. and the defendants failed, and that Mr. Garth’s version of the matter stands substantially uncontradicted. We think, too, that after this great lapse of time, and upon the facts as they appear in the record, it is fairly to be inferred that Harrison, Garth & Co. settled with McKim & Co. for the purchase price of the shares before Mr. Garth or any member of his firm was aware of the fact that their names appeared in the certificates as the owners of the stock. There can be no doubt from the entire tenor of, Mr. Garth’s testimony that had he known of this fact, he would never have advanced the purchase price of the shares, but would have refused to honor McKim & Co.’s account therefor, and would have returned the certificates to them at once as contrary to his understanding with Ficklin. There can be but one conclusion of law properly deducible from this state of facts. No person can be made a stockholder without his knowledge or consent Matter of Reciprocity Bank, 22 N. Y., 9; Keyser y. Hitoz, 133 U. S., 138. And, as was said by Earl, J., in McMahon v. Macy, 51 N. Y., 161, “ There is nothing in any statute which makes the books of the company incontrovertible evidence ” on that head.

The actual fact may always be inquired into, and if it be shown that the transferee upon the books never consented to. accept the shares, the transfer to him is simply null and void. Morawetz on Corporations, § 223, and cases there cited. “It is,” as was said in Cartmell's case, L. R., 9 Ch. App., 694, “ of the essence of a transfer that it should be accepted by the transferee.” See, also, Henessey’s Executors’ case, 3 DeG. & S., 101, and Chapman and Barker’s case, L. R., 3 Eq., 361.

Nor did the defendants by any neglect or default bring themselves within the rule that a person who permits his name to appear and remain in its outstanding certificates of stock and on its register as. a share-holder is estopped as between himself and the creditors of the bank to deny that he is a share-holder. Whitney v. Butler, 118 U. S., 655. That doctrine applies to one who actually is a share-holder in facías well as upon "the books of the company, and who transfers his shares to a given person.

It is ordinarily his duty to see to it that the latter causes the proper transfer to be made upon the books of the company. But here the defendants were not shareholders in law or in fact, and they made no transfer to any given person. They simply dis-affirmed the unauthorized act, whereby their names were inserted in the certificates as shareholders, and placed as such upon the books of the company. They had then no means of transferring the shares to any given person. The shares had not been resold when they repudiated the transfer to themselves, and consequently there was no person to whom the re-transfer could be made when such repudiation took place. What they did do was all that they could do, namely, to return the shares to the Baltimore brokers with instructions to sell them at once and have them transferred from their names. And it appears that when McKim & Go., in obedience to these instructions, resold the shares, the books of the corporation were closed and it was then too late to make the re-transfer. Indeed, the company made its assignment the following month, and since then has ceased to be a going corporation. Under these circumstances it cannot be said that the defendants have done, or omitted to do, anything which entitles the plaintiff as the representative of the company, or of creditors, to invoke against them the doctrine of estoppel.

Upon both the facts and the law, therefore, we think that the complaint could have been dismissed. As to the other points which were presented, we need only say that we have grave doubts as to the plaintiff’s right to maintain this action, and that in several respects his position with regard to this hard and stale demand, fails to commend itself to our sense of equity and justice. But these questions need not be passed upon, as the single consideration already discussed is sufficient to dispose of the entire case.

The exceptions must, therefore, be sustained and a new trial ordered, with costs to abide the event.

Yah Bruht, P. J., concurs.