author: Corlett, J.

text:
    Nelson Daggett, Adm’r, App’lt, v. Mary Daggett, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    Executors and administrators—Inventory—Property set apart for • widow—Laws 1889, chap. 406.
    Under chap. 406, Laws 1889, where the present value of the real estate set apart for the widow, together with her dower right therein and the §150 of personal property did not amount to $1,000, it was the duty of the executors to set apart for her other personal property sufficient to make up said sum.
    Appeal by the administrator from an order of the surrogate’s court of Cattaraugus county.

      C. D. Van Aernam, for app’lt; E. A. Scott, for resp’t.
   Corlett, J.

On the first day of April, 1890, the surrogate o the county of Cattaraugus made the following findings of fact and conclusion of law:

“ (1.) That Danforth Daggett died intestate in the month of August, T889, being a resident of the town of Yorkshire in the county of Cattaraugus, aforesaid, and leaving him surviving his widow, Mary Daggett, of the age of seventy-two years, and descendants.
“ (2.) That on the 2d day of September, 1889, in proceedings had therefor, one Nelson Daggett was duly appointed administrator of the goods, etc., of said Danforth Daggett and has ever since acted as such.
“(3.) That at said time M. C. Langmade and Chester C. Pingrey were duly appointed by said surrogate appraisers of the personal property of said deceased, and also of his real estate sufficiently to carry out the provisions of chap. 406 of the Laws of 1889. That said appraisers inventoried said property, and the same was duly filed in the office of the surrogate on the 7th day of November, 1889. That it appears from said inventory that said appraisers set apart to said widow the household furniture left by decedent, and which did not cover nearly all of the enumerated articles allowed her by law, $150 in personal property, and real estate of the value of $1,000, and nothing more.
“ (4.) That it 'appears that the personal property left by intestate in addition to said household furniture, and said $150, amounts to the sum of $342.87, and the entire real estate of which decedent died seized is of the value of $1,150.
“ (5.) That the present value of the interest in said real estate so set apart to said widow is the sum of $375.20. That the present value of her dower interest in said lands is the sum of $105.49. Add the $150. Total value of widow’s interest in real and personal estate, as set apart by appraisers (except household furniture), $630.69.
“As a conclusion of law, I find and decide: That a new appraisal is necessary. That said widow is entitled to have set apart for her the remaining personal property, or sufficient thereof to make up the sum of $1,000, which would require, in addition to what is already set apart for her, the property aggregating in value $369.31, and an order will be entered accordingly.”

The findings of fact were not controverted.

Chapter 406 of the Session Laws of 1889, was as follows:

“An act to amend chap. 2, of part 2, of the Revised Statutes, as amended by chap. 320 of the Laws of 1830, by making an additional section to said chapter, and to amend § 2 of chap. 157 of the Laws of 1842, entitled, ‘ An act to extend the exemption of household furniture and working tools from distress for rent and sale under execution,’ relating to the descent of real estate and distribution of personal property.
“ Approved by the Governor, June 7, 1889. Passed; three-fifths being present
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. Chapter 2 of part 2, of the Revised Statutes, as amended by chap. 320 of the Laws of 1830, is hereby amended by making an additional section to said chapter, to be known as § 30, and said section shall read as follows:
“ § 30. If the intestate shall leave a widow and a descendant or descendants, then such widow, in addition to any interest to which she may be entitled under the preceding sections of said chapter two, shall be entitled to the use, during her life, of an additional portion of the estate, not exceeding in value one thousand dollars; and in case the intestate shall leave a widow and no descendant or ■descendants, then the widow shall be entitled to the absolute ownership, in fee, of such additional portion of the estate.
“ § 2. Section two of chapter one hundred and fifty-seven of the laws of one thousand eight hundred and forty-two, entitled ‘An act to extend the exemption of household furniture and working tools from distress for rent and sale under execution ’ as amended, is hereby amended so as to read as follows:
“ § 2. When a man having a family shall die, leaving a widow or minor child or children, then (there) shall be inventoried by the appraisers and set apart for the use of such widow and child or children, or for the use of such child or children, in the manner now prescribed by the ninth section of title third, chapter sixth of part second of the Revised Statutes, necessary household furniture, provisions, or other personal property, in the discretion of said appraisers, to the value of not exceeding one hundred and fifty dollars, in addition to the articles of personal property now exempt by appraisal by said section. And in case the interest of a widow in the real estate of a deceased husband, in addition to her dower right and together with said one hundred and fifty dollars, shall be of less value than one thousand dollars, then said appraisers shall set apart for the use of such'widow, or for the use of such widow or child or children, in the manner hereinbefore prescribed, personal property which, together with said real estate, shall amount to one thousand dollars in value. Said appraisers are authorized to make an appraisal of the estate to which the widow may be entitled, for the purposes of this section. The provisions of this section shall apply where a man dies intestate as well as where he leaves a last will and testament.
“ § 3. This act shall take effect immediately.”

This act was repealed by chap. 173 of the Laws of 1890. The act repealed in some of its provisions was somewhat obscure. One construction was put upon it in Matter of Steward, 30 N. Y. State Rep., 438; 10 N. Y. Supp., 24. A somewhat different one in the case at bar, 29 N. Y. State Rep., 864; 9 N. Y. Supp., 652, in which the surrogate’s opinion appears as well as in the case. No errors appear which would authorize a reversal.

The decree must be affirmed.

Dwight, P. J., and Macohber, J., concur.

       Affirming 29 N. Y. State Rep., 864.


source: Caselaw Access Project

license: Public Domain

text:
    George S. Wallace, Resp’t, v. Michael H. Williams and Sophie E. W. Williams, App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    1. Search warrant—Damages.
    In an action to recover damages for causing plaintiff's premises to be searched under a void warrant, in the absence of proof of malice or ill will exemplary damages cannot be awarded.
    2. Same.
    One who makes an affidavit for a search warrant and delivers the warrant to an officer with directions to execute-it, is liable for damages in case it is void; but one who simply makes an affidavit, but does' nothing more, is not.
    Appeal by the defendants from a judgment based upon the verdict of a jury in a cause tried at the Niagara circuit, and an order denying a new trial.

      George S. Judson, for app’lts; William C. Greene, for resp’t.
   Corlett, J.

In October, 1888, Andrew Bowman searched the plaintiff’s house and barn for stolen property. None was found, and this action was brought against the defendants on whose application the warrant was issued. A trial was had in April, 1889, before a justice and jury, which resulted in a verdict for the plaintiff of $200 damages. A motion for a new trial was made and denied, and the defendants appealed to this court from the judgment entered upon the verdict and the order.

It appeared that Andrew Bowman was a constable, and that the defendants made application to a justice of the peace of the county of Niagara for a search warrant, which was issued. The affidavits stated, in effect, that certain personal property had been stolen, and that the affiants had probable cause to believe, and did believe, that some part of it was concealed on the premises of the plaintiff. No grounds were stated in the affidavits showing, any foundation for a belief that the property alleged to have been stolen was concealed in the house or barn of the plaintiff. The trial justice held that the affidavits were entirely insufficient to confer jurisdiction upon the justice of the peace to issue a search warrant, for the reason that no facts were stated upon which the warrant was issued tending to establish probable cause.

At the close of the evidence the learned counsel for the defendants asked for a nonsuit, which was denied and exception taken.

The plaintiff testified, in substance, that when Bowman came to search the house he stated he had a search warrant caused to be issued by the defendant, Michael H. Williams, which he read. The plaintiff further testified that he told the constable he had authority to go through the house and barn and he would not hinder him. The constable’s evidence was to the same effect.

The trial justice charged the jury, stating to them that the premises were searched by the direction of the defendants for property alleged to have been stolen; that the search warrant was void, and that the plaintiff made out a cause of action. The defendants claimed that they did not act maliciously, and that they had no unkind feeling, but were inspired solely by an honest desire to find the stolen property. The trial justice charged that on the question of damages the plaintiff was entitled to such as he had sustained, also exemplary damages if the jury thought he was entitled to them.

The exception to the charge by the defendants was as follows:

“Defendants except to that part of the charge which says that the plaintiff is entitled to a verdict of some kind, and to exemplary damages if the jury think so.” If a part of the charge to which this exception was taken was correct, the exception is not available, for it should have been confined to that portion which was erroneous. Schoonmaher v. Bonnie, 119 N. Y., 565; 30 N. Y. State Rep., 113; Jones v. Osgood, 6 N. Y., 233; Hodges v. Cooper, 43 id., 216; Wallace v. Vacuum Oil Co., 35 N. Y. State Rep., 697; Bosley v. N. M. Co. et al., 123 N. Y., 550; 34 N. Y. State Rep., 277.

If any part of the charge was correct the exception was too broad to be available.

The defendant’s counsel requested the court to charge “that there being no allegation and no evidence of any malice or ill-will on defendant’s part against the plaintiff, this is not a case where exemplary damages are awarded.”

The court refused so to charge and the defendant’s counsel excepted.

The complaint does not allege malice and there seems to have been no evidence on the trial tending to prove it. This exception, therefore, was well taken. But there is another aspect of the case which seems to have escaped attention on the. trial. The evidence tends to show that the defendant, Michael H. Williams, not only made one of the affidavits upon which the search warrant was issued, but he also delivered it to the constable with directions to go and •search the plaintiff’s premises. But his wife, so far as the case shows, did nothing except to make the affidavit. She neither delivered it, directed its delivery, or directed the constable to make the search. It is true that the learned trial justice, in charging the jury, stated that the defendants directed the constable to execute the warrant. No exception was taken to this charge, nor was the attention of the trial justice called to the fact that the wife gave no directions.

In Lewis v. Rose, 6 Lans., 206, it was held that the mere delivery of a warrant believed to be valid by a complainant to the officer by whom it is executed will not subject the complainant to an action for false imprisonment; otherwise, where the warrant is delivered with directions to arrest, if it is void.

To the same effect are Von Latham v. Libby, 38 Barb., 339; and Nowak v. Waller et al., 31 N. Y. State Rep., 458; S. C., 10 N. Y. Supp., 199.

In Miller v. Adams, 52 N. Y., 409, it was decided that a person who applies to a judge to issue an attachment for the arrest of another, and who receives and delivers it to a sheriff for service, is liable in case the attachment was void.

In the case at bar the acts of the defendant, Michael H. Williams, in delivering the warrant, with directions to execute it, would make him liable in case the proof was sufficient. But as ■against him the right to recover exemplary damages does not appear to have been shown, and the charge may have caused the jury to render a larger verdict on that ground. Aside from this, the request to charge above quoted, to which exception was taken, raised the question. As against the wife, the evidence entirely failed to show a right to recover.

It follows that the order and judgment must be reversed and a new trial granted.

Dwight, P. J.,.and Macohber, J., concur.


author: Corlett, J. Dwight, P. J., (dissenting.)

text:
    Bowers H. Leonard, Pl’ff, v. Robie Clough and DeWitt C. Clough, Def’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    Pixtures—Severance from realty.
    Defendants conveyed to their daughter certain premises on which was a portion of a barn, which was not attached to the realty but built upon stones sunk in the ground and which could be removed without injury to the soil. At the time of the conveyance the daughter told defendants that the barn was theirs, and they continued to occupy it, and subsequent grantees of the daughter, including the plaintiff, were notified that the barn belonged to defendants. In an action for removing .said barn, Held, that the barn by its nature and mode of construction was capable of being treated as personal property and of being reimpressed with that character by agreement, and that defendants had a right to remove the same.
    (Dwight, P. J., dissents.)

      Motion for a new trial on case and exceptions ordered to be heard at the general term in the first instance in a cause tried in Cayuga county.

      Amasa J. Parker, for pl’ff; Payne & O'Brien, for def'ts.
   Corlett, J.

The defendants were the owners of a lot of land situated in the city of Auburn, about four rods in width, upon which there stood a frame barn sixteen feet in width and twenty-four feet in length. It was a small structure built upon stones sunk in the ground. It was not attached to the stones or the ground, and the evidence tended to show that it was so built that it could be removed without injuring the soil or disturbing the foundations upon which it rested. Soon after Mrs. Bobie Clough became the owner of this land she deeded to her daughter, Mrs. Gilbert, a portion of the lot, which conveyance included two-thirds of the barn.

The grantor, Mrs. Clough, testified that at the time of the execution of the deed to her daughter, and after its delivery, the grantee stated: “How, pa and ma, the barn is yours; there can nobody interfere.” The grantee, Mrs. Gilbert, on this subject testified that on the same occasion she received the deed she told her father and mother that the barn was theirs. After that the grantors occupied the barn, and each grantee from Mrs. Gilbert had notice before they took a conveyance that the barn belonged to the defendants.

In the case of the plaintiff, the evidence as to whether he received such notice was conflicting, but the jury found in favor of the defendants’ contention.

It does not distinctly appear, nor is the point material, whether the original grantor and grantee had an understanding or agreement before the execution and delivery of the warrantee deed that the barn should remain the property of the grantors, but it does appear that immediately after the execution and delivery, and on the same occasion, the grantee stated to the grantors that the barn was theirs, which would naturally imply that there was either an express or implied understanding before the execution of the deed that such should be the case.

The plaintiff’s contention is that the barn was a part of the real . estate and that it passed by the deed. This undoubtedly would be so in the absence of facts showing a different understanding or agreement

In Ford v. Cobb, 20 N. Y., on page 348, the court say: “It will readily be conceded that the ordinary distinction between real estate and chattels exists in the nature of the subject and cannot in general be changed by the convention of the parties. Thus it would not be competent for parties to create a personal chattel interest in a part of the separate bricks, beams or other materials of which the walls of a house were composed. * * * But it is otherwise with things which, being originally personal in their nature, are attached to the realty in such a manner that they may be detached without being destroyed or materially injured, and without the destruction of or material injury to the things real with which they are connected, though their connection with the land or other real estate is such that in the absence of an agreement or of any special relation between the parties in interest they would be a part of the real estate.”

On. page 349 the court say: “ If the subject which would otherwise be real estate can be made personal by the creation of special relations between the parties, it is clear that the same parties may effect the same thing by express agreement,”

In Tyson et al. v. Post, 108 N. Y., 217-221; 13 N. Y. State Rep. 503, the court say, “ There can be little doubt, however, that the machinery, shafting, rollers and other articles became as between vendor and vendee, and mortgagor and mortgagee, fixtures and a part of the realty. Citing McRea v. Central Nat. Bank, 66 N. Y., 489. But as, by agreement, for the purpose of protecting the rights of vendors of personalty, or of creditors, chattels may retain their character as chattels, notwithstanding their annexation to the land in such a way as in the absence of an agreement would constitute them fixtures, citing Ford v. Cobb, supra, and Sisson v. Hibbard, 75 N. Y., 542, so also, it would seem to follow, that by convention the owner of land may reimpress the character of personalty on chattels which by annexation to the land have become fixtures according to the ordinary rule of law, provided only that they have not been so incorporated as to lose their identity and the reconversion does not interfere with the rights of creditors or third persons.”

The materials out of which this barn was constructed were originally personal property, and the bam erected in the form it was might remain such if originally so intended. Voorhees v. McGinnis, 48 N. Y., 278, and the cases above cited. Kinsey v. Bailey, 9 Hun, 452.

In Batterman v. Albright, 122 N. Y., 484-490 ; 34 N. Y. State Rep., 131, the court say, “And if the right of the plaintiff in the present case had been acquired to the trees prior to the mortgage, a different question would have been presented. In that event, the sale upon the execution and purchase by the plaintiff may have, so far as essential, been treated as a sverance of the growing trees from the realty."

In the case at bar it could never have been intended by the grantor or grantee that the barn should be occupied in common.. A joint ownership would be useless to either party. Confusion might have been avoided by a reservation in the deed. But it was competent for the parties to treat the barn as personal property. It was so regarded between the original grantor and grantee. The defendants occupied and exercised dominion over the barn after their deed. The plaintiff, as the jury found, had notice that the barn after the deed was personal property with the right on the part of the original grantors to remove it. Every subsequent grantee including the plaintiff had notice of that fact. The plaintiff’s right was acquired after the agreement or arrangement to treat the bam as personal property, and he, therefore, occupies the position stated in the quotation from 122 N. Y.

This barn in view of its mode of construction was in its own nature capable of being treated as personal property and was not, within the exception stated in the 20th of New York, incapable ■of being retained or changed into personal property.

The judge in the Tyson case, above cited, states, in substance, that although the barn was real estate, it could by agreement be impressed with the character of personal property. ■Such was the arrangement and intention in the case at bar, of which the plaintiff had full notice before he took his deed.

The submission of the case to the jury by the trial justice was correct, and their findings under the instructions given correct

Alleged errors in the admission or rejection of evidence are entirely immaterial as the questions involved in them would only become important in case the plaintiff was entitled to recover. The same is true as to the time of removal; it was entirely immaterial whether it was removed by night or day.

The motion for a new trial should be denied.

Macomber, J., concurs.

Dwight, P. J., (dissenting.)

The action was for damage to the freehold by the removal from the plaintiff’s lot of a portion of a ■small barn which stood thereon.

In March, 1884, the defendant Mrs. Robie Clough became the ■owner, by warranty deed, of a lot of land four rods wide situate on the east side of Morris street in the city of Auburn, on which ■stood the barn in question adjacent to the north line of the lot. 'The deed was recorded soon after it was delivered.

In April of the same year Mrs. Clough conveyed, by warranty deed, to her daughter Mrs. Gilbert, the same premises, excepting and reserving therefrom a strip of land six feet wide along the north line of the lot, Mrs. Clough being then and now the owner ■and occupant of the lot next north of the strip reserved. The reservation included about one-third of thcbarn. The deed to Mrs. Gilbert was recorded within a few days after its date.

In November, 1888, the plaintiff became the owner, by several mesne conveyances, of the premises so conveyed to Mrs.' Gilbert No one of such conveyances contained any reservation or exception; all contained covenants of warranty and were duly recorded.

On the trial of this action evidence was received, under objection and exception by the plaintiff, to show that after the execution and delivery of the deed to Mrs. Gilbert, she attempted to make an oral gift of the barn to her father and mother, declaring • to them that now the barn was theirs, that nobody could inter- ' fere with them in their right; that they had full permission to have it as theirs.” Evidence was also received, under similar •objection and exception, to show that the subsequent grantees of the lot, including the plaintiff, were informed at the time of their ■several purchases that no part of the barn went with the lot, but that the whole of it belonged to the Cloughs. This evidence, so far as it related to the plaintiff, was contradicted.

In April, 1889, the defendants, without the knowledge or consent of the plaintiff, removed the barn wholly onto the lot of. Mrs. Clough, and the plaintiff brought this action to recover the diminution in value of his lot by reason of such removal.

The questions arising on this motion for a new trial are presented by the plaintiff’s exceptions to the admission of evidence on the part of the defendants for the purpose of establishing an oral transfer of the barn to themselves, and an oral reservation of the same at the time of the sale to subsequent purchasers, including-the plaintiff; as well as by his exceptions to the charge of the court to the effect that it was competent for the parties to the several deeds to fix the character of the barn as personal property and to transfer or reserve it by word of mouth. I think the exceptions were well taken and are fatal to the verdict.

The case is not one in which personal property was annexed to the freehold and in which the intention of the parties at the-time of making the annexation is a test of the character of the property after that time. Such were the cases of Voorhees v. McGinnis, 48 N. Y., 278, and Tifft v. Horton, 53 id., 377. In this case the barn was never personal property, but part of the freehold from the beginning. It was not built'by a tenant for the purposes of his tenancy with the agreement that it might be removed at the end of the term; but by the owner of the soil as an addition to the usefulness and value of the lot, and it was from the moment of its erection as much a part of the freehold as the-soil itself.

The same answer must be made to the contention that the case; was, within the doctrine of Tyson v. Post, 108 N. Y., 217; 13 N. Y. State Rep., 503, one in which the character of personalty might be re-impressed upon the property by parol agreement,, after it had been once annexed to the freehold as fixtures; the-answer, namely, that this building had never possessed the character of personalty, but was" always a part of the realty, and could never cease to be so until actually severed from the freehold. The case of Mott v. Palmer, 1 Comst., 564, which is cited by the defendants on this branch of the case, seems not to support their contention. That was an action on a covenant of seizin, and related to a quantity of rails which had been placed on the land by a tenant, and erected into a fence by him, under an agreement, that he might remove them' at the end of his term. The action was sustained by the court of appeals, which, of course, could have been the result only on the theory that the fence was as between the grantor and grantee a part of the freehold, and thus embraced in the covenant of seizin ; and such it was held to be, although as between the owner of the soil and the tenant it was personal property, and belonged to the latter.

In the present case there can be no question but that the portion of the bam which stood on the lot conveyed by Mrs. Clough to Mrs. Gilbert was at the time of such conveyance a part of the realty, and, as such, passed to the grantee in the deed, both as-between themselves and as to all the world. The defendants concede so much when they plant their defense upon the theory of a gift and transfer of that portion of the property from Mrs. Gilbert to her parents. So that, really, the only question is, could such a transfer be effectuated by an oral agreement? Certainly not unless there is something to deprive the statute of frauds of application to this case, which declares that “no estate or interest in lands * * * shall hereafter be created, granted, assigned, surrendered or declared, unless by a deed or conveyance in writing.” The term lands in the statute is employed in its widest sense to embrace everything that belongs to the soil and forms a part of the freehold. Undoubtedly it is competent for the owner -of the lands to agree orally to sell or give away a building to be removed from the premises, and so give title to the building when once it should be removed; but it will not be contended that the purchaser could enforce specific performance of such a contract

I know of nothing in this case to take it out of the statute of frauds, and am of the opinion that the rulings of the court admitting evidence of the attempted oral gift of the barn, and the -charge of the court relating to the effect of such- evidence, were error for which the motion for a new-trial should-be granted.

Exceptions overruled, and judgment directed for the' defendants on the verdict.


author: Macomber, J.

text:
    Caroline E. Morganstern, App’lt, v. Jacob H. Davis et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    1. Contbact—When assignment of stock a sale and not a pledge
    Defendants endorsed a note of plaintiff given to raise money to pay an assessment on certain stock, which note they were afterward compelled to pay. At the time of such endorsement plaintiff executed an agreement by which she sold said stock to defendants, the agreement reciting the endorsement of the note and providing that if she did not pay the note at maturity, and defendants did so, they should own the stock absolutely. In an action to redeem the stock, there was no proof of deception or mistake except evidence of a previous conversation between plaintiff’s agent and one of the defendants that they would receive the stock as collateral security, and it appeared that the agreement was read to plaintiff before she signed it. Held, that plaintiff was bound by the contract, and that it constituted a sale and not a pledge of the stock.
    2. Same—Consideration.
    Although the endorsers did not agree to pay the note, yet as they did, in fact, do so, a good consideration was furnished for the agreement.
    Appeal from a judgment entered May 10,1889, in Erie county clerk’s office, on the decision of the special term, dismissing the plaintiff’s complaint upon the merits.

      Giles E. Stilwell, for app’lt; Warren F. Miller, for resp’ts.
   Macomber, J.

This action was brought to obtain an accounting and to recover 200 shares of the capital stock of the Main Street & Humboldt Parkway Land Company, or the value of such shares, after deducting the purchase price and subsequent payments of assessments and interest thereon made by the defendants.

The plaintiff and the defendants had been stockholders of this , company for some time. On the 3d day of April, 1886, an assessment of §1,000 was made on the shares of the stock held by the plaintiff, and she, being unable to pay such assessment, was assisted thereto by the defendants, who loaned to her their endorsement upon her promissory note at sixty days, which was discounted and the proceeds turned over to the plaintiff and applied to the payment of the assessment against her upon such stock. The note matured on the 5th day of June, 1886. It was not paid by the maker, the plaintiff.

It was protested for non-payment, and the defendants properly charged upon their contract of endorsement by notice of such non-payment, and they in fact paid the note on the 17th day of June, Í886. At the time of the execution of the note the following agreement was made by the plaintiff, under seal, and duly acknowledged by her before a notary public: “ For value received, I hereby sell, assign, transfer and set over unto F. 0. Longnecker, Jacob Davis and August Baetzhold, all my right, title and interest in the annexed certificates of stock in the Main Street & Humboldt Parkway Land Company, being certificates Ros. 30, 33, 34 and 35, representing two hundred shares of said stock. The said parties above named have this day endorsed my note for $1,000, payable in sixty days from this date, for the purpose of enabling me to pay an assessment for that amount on said stock. Row, I agree, that in case I do not pay said note at maturity, and said Longnecker, Davis and Baetzhold do pay said note, that they shall absolutely own all my right, title and interest in said shares of stock. Said shares of stock have heretofore been assigned to Peter Morgenhagen and the Herman-American Bank, who have-been paid in full, and said certificates now belong to me, free from all liens and claims.”

At the time that this agreement was made and at the time of the loaning of their endorsement by the defendants, there was no-market value for the stock in question, and its value was purely speculative. Upon these facts the learned judge at the special term held, as conclusions of law, that the transaction amounted to a sale of the stock, upon certain conditions, and that the title to it vested in the defendants on the failure of the plaintiff to pay the note and on payment thereof by the defendants, and that by reason of such failure of the plaintiff to pay and by the complete performance by the defendants, the latter became absolute owners, of the stock under the contract.

The learned counsel for the appellant urges upon us the argument that the transaction was but a pledge of the stock as collateral security to indemnify the defendants against their endorsement of the paper, and that consequently the plaintiff is entitled to reclaim the stock on reimbursing the defendants the amount of money which they have expended in the payment of the note and assessment made upon the stock.

The negotiations were conducted in behalf of the plaintiff by her father, who was acting as her agent. This agent was permitted to give testimony from which it is argued that it was the intention of the parties that the one should turn out and the others should receive the stock as collateral security only, and not under a conditional sale thereof. This evidence, however, fails to show the existence of any matter that would change the plain reading of this contract to something which the plaintiff now finds it convenient to import into it. There is no evidence of a mistake in the preparation of the contract. There is no evidence, or even a charge, of fraud against the defendants. The plaintiff has proceeded, through the testimony of her agent, as she has in her complaint, upon the assumption that there was no agreement between the parties of the character set forth above. It is alleged in the complaint that the defendants agreed to receive the stock as collateral security. But there is no evidence in the case to support this allegation, unless, perchance, a loose conversation between the plaintiff’s agent and one of the defendants, had sometime prior to the execution of the agreement, bears that construction. Moreover, when the plaintiff, who was required by the defendants personally to sign the agreement, although her father claimed to possess full power to act for her in the premises, appeared for the purpose of executing the instrument, her contract was read over to her, she fully understood it, and she signed, sealed and acknowledged it before a notary public. Ho word was said to her which would go to show that the transaction was in any way different from what this written paper imports.

In the absence, therefore, of deception or of mistake in reducing the real agreement of the parties to writing, this contract cannot be changed from its plain reading into something different; and the plaintiff must accordingly be deemed to be bound thereby. Marsh v. McNair, 99 N. Y., 174; Long v. Millerton Iron Co., 101 id., 638; 1 N. Y. State Rep., 38, and cases there cited.

Mor can the contention be upheld, that inasmuch as the endorsers did not agree to pay the note, there was no mutuality of contract, and therefore the agreement is not binding. Even though there was no contract outside the endorsement on the part of the endorsers to pay the notes and even though there was no mutuality in the contract, yet, inasmuch as the endorsers did in fact pay the note according to the terms of the endorsement, a good consideration was furnished for the plaintiff’s agreement and the defendants may enforce it L'Amoreaux v. Gould, 7 N. Y., 349.

The judgment appealed from should be affirmed, with costs.

Dwight, P. J., concurs; Corlett, J., not sitting.


author: Finch, J.

text:
    Julius Lipman et al., Resp’ts, v. The Jackson Architectural Iron Works, Imp’ld, App’lt.

      (Court of Appeals,

      Filed June 2, 1891.)

    Mortgages—Mechanic’s lien—Priority.
    Plaintiffs made a builder’s loan, secured by mortgage, and had ad, vanced fourteen instalments, when defendant filed a mechanic’s lien. "Whereupon an agreement was made that plaintiffs were to accept orders in défendant’s favor, payable when the mortgagors were entitled to the fifteenth and sixteenth instalments, and the lien was to be postponed until such instalments were paid. Subsequently it was agreed that further advances were to be made by plaintiffs for specified work, and that defendant’s lien should be paid out of the latter advances, and the lien be subocdinated to the entire amount of the mortgage. The entire amount was advanced, but the mortgagors never carried the building to the point which entitled them to the fifteenth and sixteenth instalments. Held, that in the foreclosure of plaintiffs’ mortgage defendant could not set up its lien, and had no defense.
    Appeal from judgment of the New York commdn pleas, general term, affirming judgment of foreclosure and sale, entered upon report of referee.

      H. R. Beekman, for app’lt; E. A. Jacob, for resp’ts.

       Affirming 36 N. Y. State Rep., 743.

   Finch, J.

We need not consider the question whether the contracts between the parties destroyed the effect of the mechanic’s 'lien filed by the creditor company, or merely subordinated that lien to the plaintiffs’ further advances and preserved to the lienor a right to participate in a surplus resulting from the sale, because in either event we are required to affirm the judgment. The lienor has been defeated upon the ground that, as against the mortgagees, its debt is not yet due and payable, since the express condition upon which payment was promised has not been fulfilled. The contract of the mortgagees with the owners was to make the advances in specific instalments, dependent upon different stages of work done in the construction of the building. That building was to be the main and chief security for their loan, and it was necessary to their safety that the advances in general should not outrun the progress of the work, but should keep always behind it, in order that there might be existing value mortgaged at each added instalment of the loan. Two of these instalments were numbered the fifteenth and sixteenth.

By the terms of the former the sum of $6,000 was to be advanced “ when the plumbing work is nearly completed, all doors hung, elevators and steam apparatus nearly completed, and all sashes in.” By the terms of the latter $5,000 was to be advanced “when railings and balusters completed, hardware all in, glazier’s work completed, front area work done, sidewalks and yards laid, and cellars concreted.” The whole advances originally contemplated amounted to $55,000. Before the fifteenth and sixteenth instalments had been earned, and when the advances amounted to about $40,000, the appellants filed their lien. In presence of that emergency the advances stopped and the mortgagees declined to continue them until some arrangement of the incumbrance was made. The three parties thereupon executed the first contract. Under its provisions the mortgagees were made safe by the agreement of the lienors to subordinate their lien to the further advances to be made under the protection of the mortgage; and the lienors were provided for by the mortgagees’ promise to pay the amount of the lien when the fifteenth and sixteenth instalments should be earned by the builders and become due to them. This last arrangement took the form of an order drawn by the builders upon the mortgagees directing them to pay “ out of the moneys growing due to us ” $800 “ out of the fifteenth instalment, payable according to the terms of said contract,” and $2,079 “ out of ’’ sixteenth instalment,” and which was accepted by the mortgagx “ payable as above.” Their promise, therefore, was explicit conditioned upon the earning of the two instalments by the builers, which could only be done by completing the work in accordance with the specified requirements.

Now that work has never yet been done. The builders have not earned the fifteenth and sixteenth instalments or become entitled to receive the sums for which they provided. If nothing else had happened it would follow inevitably that the fund out of which the lienors were to be paid as a fund due and payable to their debtors never in fact accrued or came into existence; and since the lienors, in making their lien subordinate, had accepted the promise of the mortgagees to pay only when the two instalments became due according to the terms of the building contract, the latter were bound to pay only when those terms were fulfilled.

But something else did happen. The mortgagees advanced to the builders not only the full $55,000, but some part of $10,000 more, and yet with all that assistance the latter never carried the building to the stage of completion which made due and payable the fifteenth and sixteenth instalments. But the lienor’s claim that those instalments having been paid to the builders must be deemed to have become due and payable, and that the prior completion of the work represented by those instalments was waived by the mortgagees. There is some force in that contention, and if it should turn out that the mortgagees never advanced of the final $10,000 the full amount less the lienor’s claim as was agreed, it might with even more force be argued that if such advances had been made the work in arrears would have been performed, and that the mortgagees could not stop their promised aid and resort to a foreclosure so as to prevent the completion of the work and yet rely on that failure of completion to avail performance of their promise.

But while they may be liable on their acceptance, and we do not determine that question either way, I am convinced that the remedy of the lienor is not in this action, and that the judgment rendered was right It orders a foreclosure, cuts off the lien of the creditor, gives to the mortgagees a preference of payment from the proceeds to the full amount of the $55,000 and interest, and orders any surplus arising on the sale to be brought into court. To all that the lienors explicitly agreed, for they consented that their lien should be subordinated to that of both mortgages, and that the whole $55,000 should be advanced under the shelter of that consent Beyond that they consented to the further advance of $10,000, less the amount of their claim, to be used for some of the very purposes covered by the fifteenth and sixteenth instalments of the building contract," for these also respected the plumber’s work and trim of the building. So far the appellant cannot successfully question the judgment,' for it is in exact accord with the contract and awards only the relief which it agreed should be given. It is the mortgage for $55,000, and that alone, which is being foreclosed, and against that the appellant has no lien and no defense. Whatever may prove to be its rights in the proceeds of sale they must necessarily exist only against a possible surplus, and nothing in the judgment cuts off any such rights or bars the appellant from an application to share in its distribution.

It is true that the counterclaim pleaded was dismissed, but that result was necessary because, whatever its merits, it was not a permissible counterclaim in the action for foreclosure. It set up a legal cause of action on the acceptance and against the acceptors as such, and asked a money judgment against them. Assuming, which we do not decide, that the plaintiffs were thus liable on their acceptance, the debt was not the subject of a counterclaim in the equity action. The plaintiffs demanded no personal judgment against the appellant and so the claim of the latter could in no manner lessen or limit or cut down the relief which the plaintiffs sought and to which they were clearly entitled. The Code of Civil Procedure requires that the counterclaim must tend in some way to diminish or defeat the plaintiffs’ recovery (§ 501), and enacts in this respect the doctrine of National Fire Ins. Co. v. McKay, 21 N. Y., 191.

The defendant’s plea has and can have no such effect Its alleged lien as a lien was subordinate to that of the plaintiffs, and its debt as a debt could not diminish or defeat the plaintiffs’ relief upon their cause of action. The lien was no defense and the debt no counterclaim. Proof of the latter could only result in an independent judgment for money, having no effect whatever upon the foreclosure. The application of the doctrine is well illustrated in Hunt v. Chapman, 51 N. Y., 555. In that case the counterclaim was allowed, but because the plaintiff asked a judgment upon the bond for a deficiency against the defendant asserting the counterclaim, and the claim of the latter became simply contract against contract,- and if allówed would defeat or diminish the plaintiff’s recovery. Here no personal judgment is sought against the appellant and there is nothing upon which its claim can be applied or which it can possibly affect.

It is said that plaintiffs, not having demurred to the counterclaim or specifically objected to it by answer, have waived the objection. The section of the Code providing for such waiver relates only to defects in the complaint and a waiver by the defendant Sections 498, 499. The appellants requested a finding of law awarding judgment on the counterclaim, which the referee refused The respondents may defend that refusal upon the ground asserted, as well as that upon which the referee seems to have acted

For these reasons the judgment should be affirmed, with costs.

All concur.


author: Earl, J.

text:
    John H. Van Brunt et al., App’lts, v. The Town of Flat bush et al., Resp’ts.

      (Court of Appeals,

      Filed June 2, 1891.)

    1. Constitutional Law—Local act.
    Chapter 161, Laws 1889, entitled “An act in relation to local improvements in the town of Flatbush, and the acquisition of the rights of a plank road company in said town,” clearly embraces the building and improvement of the highways and the construction of sewers.
    3. Same.
    But a discharging sewer cannot be constructed in Flatbush avenue, in the town of Flatlands, without the consent of the owners of the soil, or in absence of such consent without the acquisition of the title of such owners in the mode provided in the act. Such sewer was in no way for the benefit of the owners or the community in which they lived.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment of special term dismissing complaint.

      Treadwell Cleveland, for app’lts; Wm. J. Gaynor, for resp’ts.

       Reserving 37 N. Y. State Rep., 175.

   Earl, J.

The plaintiff’s are owners of certain land in the town of Flatbush, through which Flatbush avenue runs, and they own the fee in the avenue subject to the public easements. The individualdef endants are the street and sewer commissioners appointed and acting under the act, chapter 161 of the Laws of 1889. They were proceeding to construct a sewer through the avenue, and the plaintiffs commenced this action to restrain them on the ground that they had no right to construct the same through their land in the avenue without their consent, and without condemning their land in the avenue under the provisions of the act, and also on the ground that the act is unconstitutional in that the title thereof is insufficient under § 16 of article 3 of the constitution, which provides that “ no private or local bill which may be passed by the legislature shall embrace more than one subject and that shall be expressed in its title.”

The title of the act is “An act in relation to local improvements in the town of Flatbush and the acquisition of the rights of a plank road company in said town.”

Section one provides for the appointment of the five commissioners who are required to be citizens, residents and freeholders of the town. Section 2 provides for the purchase of the rights, franchises and property within the town of Flatbush of the Plank Boad Company, and authorizes them to change the lines of the avenue within the town, and to acquire lands for that purpose, and to fix a line on each side of the avenue as a court yard line. It authorizes any persons owning the adjacent property to use the portion of the avenue in the court yard in front of his property as follows:

By enclosing the same with open and ornamental fences, and by building open porches or stoops and having flowers and ornamental shubbery and ornamental structures; and the commissioners are authorized to improve the avenue by grading, curbing, guttering, flagging and paving or macadamizing the same, to fix the width of the carriage way and sidewalk and to plant ornamental trees thereon. Section four is as follows:
“ Such commissioners shall devise and make a plan for building one or more trunk sewers to take and discharge the sewage matter in such town into the tide water. And for the purpose of in such town to connect with the trunk sewer or sewers, they may divide the territory in said town into as many districts as they may see fit, and devise a plan for the building of sewers in the streets of each district, so as to connect with such trunk sewer or sewers; they shall make and file maps showing such plans. All sewers herein provided for, other than trunk sewers, and other than sewers built for surface drainage only, are to be designated on any map or plan which may be filed, as herein provided, and are for the purposes of this act designated as lateral sewers.’ ”

And in section 5 it is provided as follows:

“And for the purpose of building such trunk and lateral sewers, they shall have the right to enter into or upon any street required for such sewers, and there to build and maintain the same. The right hereby given shall be deemed to include the right to acquire the necessary lands and rights to build the trunk and lateral sewers and branches in the said town of Flatbush, and also to build so much of said trunk sewer as may be necessary in the town of Flatlands. In case they require any rights in any streets or other lands not belonging to the public, for the purpose of doing what is herein authorized as to said sewers, or for improving Flatbush avenue as hereinbefore provided, they may acquire such rights and property by purchase or by the proceedings and in the manner provided as to the acquisition of lands for the purposes of railway.”

All the acts of the commissioners are to be performed in the town of Flatbush except the construction of the trunk sewer through the town of Flatlands to tide water, and the plaintiffs claim that the construction of the sewer in the town of Flatlands is not expressed in the title.

The section of the constitution invoked by the plaintiffs to destroy this act has given the courts much trouble. They have been able to formulate no general rule that will solve all the cases coming under this section. Whether the title of an act will stand the test of this constitutional requirement depends generally upon peculiar provisions of the act. Every provision contained in a private or local bill must be germane to and fairly connected with and tending to promote the subject expressed in the title. As said in Astor v. The Arcade Railway Company, 113 N. Y., 93; 22 N. Y. State Rep., 1, “ when the subject is expressed, all matters fairly and reasonably connected with it, and all measures which will or may facilitate its accomplishment, are proper to be incorporated in the act, and are germane to the title.” The subject expressed in the title, “local improvements in the town of Flatbush,” clearly embraces the building and improvement of the highways and the construction of sewers. Sewers cannot be constructed in that town without an outlet, and the sewerage system would be imperfect and useless unless the sewage can be carried' to some point where it can be discharged. Hence the act authorizes the construction of the trunk sewer through the town of Flatlands to tide water. We may assume from the provisions of the act, and from the names of the two towns, that the most convenient, if not the only practical way to dispose of the sewage is to conduct it to tide water. The trunk sewer through Flat-lands is in no way for the benefit of that town, nor in any proper sense a local improvement in that town. It is a necessary part of the sewerage system of Flatbush to be built and maintained by that town, and at its expense.' The trunk sewer through Flatlands is such a necessary part of the sewerage system of Flatbush that it is in every sense germane to the subject expressed in the title of the act The improvement is in Flat-bush, and this trunk sewer is a necessary part of the improvement. The case of The People v. Briggs, 50 N. Y., 553, furnishes some authority for the conclusion we have reached on this branch of the case. We, therefore, see no reason to condemn the act on constitutional grounds.

But we are of the opinion that the sewer cannot be constructed in Flatbush avenue, in the town of Flatlands, without the consent of the owners of the soil, or in the absence of such consent, without the acquisition of the title of such owners in the mode provided in the act The act contemplates that the commissioners ■ may require rights in streets, not belonging to the public, and provides for the condemnation of such rights.

In the ordinary country highways of the state, the public simply have an easement in the soil for traveling, and the maintenance of the highways for that purpose, and the soil in such highways cannot ordinarily be subjected to any other burden or easement without acquiring the right or consent of the owners of the soil. Bloomfield Gas Light Co. v. Calkins, 62 N. Y., 386; 2 Dillon’s Municipal Corporations, §§ 688, et seq. It is not necessary now to determine under what circumstances, if ever, the land in such highways can be subjected to other burdens or easements than those growing out of- or connected with the necessities of public travel The public easements, however, in the streets of cities and villages are more extensive. In urban streets the public convenience and health and the general welfare require that the soil thereof should be subjected to greater burdens. They may be used for the laying of water and gas pipes and the construction of sewers, and some other purposes. The public generally have an interest in and are benefited by such improvements, and they are necessities of modem life.

It is alleged in the complaint in this action that Flatbush avenue, in the town of Flatlands, “is a country road or highway extending through a rural district; that all of the lands abutting thereon consist exclusively of farms and farming lands; that said lands and said town of Flatlands are sparsely settled, and that said lands are chiefly vacant lands used only for farming purposes,” and this was upon the trial admitted to be true. By statements made upon the trial, which seem to have been taken as evidence, it appeared that from the southerly line of the town of Flatbush, for a distance of more than a mile, to the village of Flatlands, there were along the avenue but twenty dwelling houses, mostly upon farms. Upon this evidence, and other facts placed before the trial judge, he found, in substance, that Flatbush avenue was an urban street, and not a mere country highway, and that the sewers could be built therein without the consent of the owners of the soil, and without compensation to them.

We do not think it important now to determine upon the facts as they appear whether this avenue should be treated as an urban street with all the public easements therein appertaining to such'a street, or whether it should be treated as a country highway with easements only for public travel, because the result must be the same in either event.

If the legislature had authorized a system of sewerage in the town of Flatlands for the convenience, health and welfare of the inhabitants of that town, and this sewer had been projected with lateral sewers, with the privilege of the owners of adjacent lots to connect their lots therewith, then we are inclined to believe, for reasons we need not now state, that the character of the avenue and of the locality was such and the population is such- that the sewer could be built in the avenue wdthout the consent of the fee owners and without compensation to them. The immediate benefits and advantages which they in common with the whole community might receive might be all the compensation to which they would be entitled. But as above stated this sewer in Flatlands is in no way for the benefit of the owners of the lands through which it is built, or for the benefit of the community in which they live. Such owners have no right to connect their lots with the sewer and can in no way use the same. The sewer belongs exclusively to the town of Flatbush and is solely for the benefit of the inhabitants thereof. Under such circumstances what right have the commissioners to enter upon the lands of the plaintiffs and dig up their soil and place sewers therein without their consent and without compensation to them ? We can perceive none, and we know of no principle ^of law and of no authority which can justify them. Suppose instead of running this trunk sewer south it had been projected northerly through the populous city of Brooklyn to tide water in the bay of New York, and suppose the lot owners upon the streets through which.it was to run owned the fee of the lands in the street, will it be claimed that it could be thus constructed for the sole benefit of Flatbush, in no way for the benefit of the city of Brooklyn, the lot owners having no right whatever to use the sewer and having no benefit therefrom, for the sole purpose of discharging the sewage of Flatbush into the ocean, without the consent of the fee owners or any compensation to them ? In such a case the principles which justify the use of urban streets for sewers would have no application.

We are, therefore, of opinion that the judgment should ¡be reversed and a new trial granted, costs to abide the event.

All concur.


text:
    The St. Nicholas Bank of New York, App’lt, v. The State National Bank, Resp't.

      (Court of Appeals,

      Filed June 2, 1891.)

    1. Banks—Liability of collecting bank.
    A bank receiving commercial paper for collection, in the absence of a special agreement, is liable for a loss occasioned by the default of its correspondents or other agents selected by it to effect the collection.
    2. Same.
    Plaintiff, in New York, sent to defendant, in Tennessee, a draft on a bank in Texas for collection. Defendant forwarded the same to its agents in Texas, by whom it was collected and the proceeds remitted by a sight draft on New York, the usual mode of remittance. Before the sight draft could be presented both drawer and drawee had failed. Held, that defendant was liable for the loss.
    3. Same.
    The contract could not be treated as a Tennessee contract, or subject in any way to the law of that state.
    Appeal from judgment of the supreme court, general term, first department, reversing judgment in favor of plaintiff recovered on a verdict directed by the court.
    This action was brought to recover the proceeds of a draft for $473.57 sent for collection by the plaintiff to the defendant, and paid to the defendant’s correspondents. The trial resulted in the direction of a verdict for the plaintiff for the amount demanded. Upon appeal to the general term the judgment entered upon the verdict was reversed and a new trial ordered. From the order of reversal the plaintiff appealed to this court.
    There is no controversy as to the facts, which, for the most part, were set forth in a stipulation read upon the trial. They may be summarized as follows:
    The plaintiff is a corporation organized under the laws of the state of New York, and engaged in the business of banking in the city of New York, and the defendant is a corporation organized under the National Banking Act, and doing business in the city of Memphis.
    For two years prior to the 18th day of November, 1884, the plaintiff had been accustomed to send checks, notes and drafts to the defendant for collection, including such as were drawn upon persons residing at a distance, in the state of Texas and elsewhere. The commercial paper was enclosed in letters, consisting of printed forms, filled out by the insertion in writing of the date, the name of the defendant’s cashier, and a description of the enclosure. The checks and drafts were collected by the defendant, and the proceeds were remitted to the plaintiff, less one-fourth of one per cent, the defendant’s commission, and the expense incurred in making distant collections.
    On November 10th, 1884, the plaintiff was the owner and holder of a check for $473.57, dated November 6th, 1884, drawn upon the City National Bank of Dallas, Texas, by A. D. Aldridge & Co., and payable to the order of Henry Levy & Son. This check was endorsed by the plaintiff to the defendant for collection, and was sent to the latter in the usual course of business.
    The defendant received the check on November 13th, 1884, and on that day endorsed it for collection and forwarded it by mail to the firm of Adams & Leonard, at Dallas, Texas. They were at the time and had been for many years bankers in good standing at Dallas, and the correspondents of the defendant. They received the check on November 17, 1884, and on that day duly presented it for payment to the bank upon which it was drawn, and it was immediately paid, and the proceeds were received by them. They then remitted to the defendant a sight draft for the amount collected, drawn by them upon Jemison & Company, of the city of New York. This draft was sent by the defendant for collection to the First National Bank ¿f New York, and on November 24, 1884, was presented to Jemison & Company, who, in the meantime, had suspended payment The draft was accordingly protested and returned to the defendant; thereupon, the defendant, on November 28, 1884, mailed the protested draft to the plaintiff and the plaintiff refused to accept it, Adams & Leonard had failed in business before the draft on Jemison & Company was presented for payment The only evidence offered by the defendant in opposition to these facts was-proof of a decision of the supreme court of Tennessee, in the case of Bank of Louisville v. First National Bank of Knoxville, which, will be referred to in the opinion.

      Charles F. Hughes, for app’lt; A. Walker Otis, for resp’t.

       Reversing 36 N. Y. State Rep., 216.

   Earl, J.

The rule has long been established in this state that a bank receiving commercial paper for collection, in the absence-of a special agreement, is liable for a loss occasioned by the default of its correspondents or other agents selected by it to effect the collection. Allen v. Merchants' Bank, 22 Wend., 215 ; Montgomery County Bank v. Albany City Bank, 7 N. Y., 459; Commercial Bank v. Union Bank, 11 id., 203; Ayrault v. Pacific Bank, 47 id., 570; Naser v. First National Bank, 116 id., 498; 27 N. Y. State Rep., 670. And the same rule prevails in some of the other states, in the United States supreme court and in England. Titus v. Mechanics’ National Bank, 6 Vroom, 588; Wingate v. Mechanics' Bank, 10 Pa. St., 104; Reeves v. State Bank, 8 Ohio St., 465 ; Tyson v. State Bank, 6 Blackf., 226; Simpson v. Waldby, 30 N. W. Rep. (Mich.), 199 ; Mackersy v. Ramsays, 9 Cl. & Fin., 818. In such a case the collecting bank assumes the obligation to collect and pay over, or remit the money due upon the paper, and the agents it employs to effect the collection, whether they be in its own banking house or at some distant place, are its agents, and in no sense the agents of the owner of the paper. Because they are its agents it is responsible for their misconduct,, neglect or other default

Here, when this money was received by Adams & Leonard,, the defendant’s agents, it was, in law, received by it, and it became absolutely bound to pay or remit the same to the plaintiff; It is difficult to see upon what principle the defendant could beheld liable if Adams & Leonard, its agents, had carelessly failed to collect the draft, or had collected it and then purposely misappropriated the proceeds thereof, and yet not liable for their failure to pay over the proceeds in consequence of their unexplained insolvency. Upon what principle can the defendant be held liable for one default of their agents and not for every default ? That the insolvency of the sub-agent in such a case does not shield the •collecting agent from responsibility for the loss has been decided in several cases quite analogous to this. ■ Reeves v. State Bank, Simpson v. Waldby and Mackersy v. Ramsays, supra, and Bradstreet v. Everson, 72 Pa. St., 124. It is not needful now to vindicate the principle upon which these cases rest, as that has been sufficiently done by learned judges writing the opinions therein. They are well supported by many analogous cases in other branches of the law, and it is believed they lay down the best -and safest rule and subserve the wisest commercial policy.

The case of Indig v. National City Bank, 80 N. Y., 100, is not •opposed to these views. There the defendant received a note for collection which was payable at the Bank of Lowville, and it sent the note directly to the bank for payment, which on the next day sent a draft for the amount of the note to the defendant and failed before the draft reached its destination, and it was held that the loss did not fall upon the defendant That conclusion was reached by holding that the Lowville bank was not the agent of the defendant, but that the defendant was in the same position as if it had sent the note to some agent and he had received the proceeds thereof, and had then bought a draft on Hew York of the Lowville bank for the amount, and the bank had then failed before the draft was paid. The defendant there would have been held liable if the Lowville bank had been its agent for the collection of the note. Briggs v. The Central National Bank, 89 N. Y., 182.

After Adams & Leonard had received payment of the draft they drew a draft upon Jemison & Co. for the amount, and sent that to the defendant for the purpose of discharging their obligation to the defendant That draft was not made for the purpose -of remitting the proceeds of the collection to the plaintiff, and was not used by the defendant for that purpose. It sent the draft to the First Hational Bank of Hew York for collection, intending .afterward to remit the proceeds of the collection to the plaintiff in some other way. After Adams & Leonard and Jemison & Co. had failed, it sent the worthless draft to the plaintiff. By so doing it did not discharge its obligations to the plaintiff. If Adams & Leonard had purchased a draft of the Dallas Bank and sent that to the plaintiff, or if it had sent the draft to the defendant, .and the latter had then sent it to the plaintiff, then, according to the doctrine of Indig v. The National City Bank, the defendant would not have been responsible for the continued solvency of the Dallas Bank. That case was much discussed here, and there was much difference of opinion about it. It is a border case, and its doctrine should not be much extended.

The defendant, however, claims that the contract with the plaintiff is to be treated as a Tennessee contract, and that by the law of that state it cannot be made liable for this loss. Upon the trial, for the purpose of showing the law of that state, it put in evidence a decision of the supreme court in the case of Bank of Louisville v. First National Bank of Knoxville, 8 Baxter, 101. In that case a bill of exchange payable at the First National Bank of Knoxville was sent by a New York bank to the Bank of Louisville for collection. It was transmitted by the Louisville bank to-the Knoxville bank, was received by the latter and was subsequently returned unpaid. The cashier of the Knoxville bank delivered the bill to a notary public in good repute at the time who-failed to protest it, by reason of which the right of action against-the drawer was lost. The Louisville bank paid the amount of the bill to the New York bank, and then brought suit to recover against the Knoxville bank, and failed. It was held that “where a bank receives a bill of exchange for collection, payable at a distant place, its liability is discharged by transmitting the same, in due time, to a suitable and responsible bank or other agent at the same place of payment, and in such case the principal’s assent to-the employment of a sub-agent is implied,” and that “ if a debt be lost by negligence of an agent to whom a bill of exchange is sent, for collection, the principal or home bank (having complied with its duty and not being liable to the holders) cannot by voluntarily discharging the claim of the payee maintain an action on the case for negligence against the sub-agent. Such right accrues only to the holder or payee of the bill under the circumstances.” That decision was not based upon any statute law but upon the principles of the common law supposed to be applicable to the facts of the case. It did not make or establish law, but expounded the law and furnished some evidence of what the law applicable to-that case was; evidence which other courts might or might not-take and-receive as reliable and sufficient; and-even the same-court upon .fuller discussion and more mature consideration might in some subsequent case refuse to take the same view of the law.

There is no common law peculiar to Tennessee. But the common law there is the same as that which prevails here and elsewhere, and. the judicial expositions of the common law there do not bind the court here. The courts of this state and of other states, and of the United States, would follow the courts of that, state in the construction of its statute law. But the courts of this state will follow its own -precedents in the expounding of the general common law applicable to commercial transactions; and so it has been repeatedly held. Faulkner v. Hart, 82 N. Y., 413 ; Swift v. Tyson, 16 Peters, 1; Oates v. National Bank, 100 U. S., 239 ; Ray v. Western Penn. Natural Gas Co., decided in Pennsylvania supreme court Jan. 12. 1891. We must, therefore, hold that the obligation resting upon the defendant was that which the principles of the common law as expressed by the courts of this state-placed upon it

If it be said that the contract between these parties was made in view of the common law, then we must hold that it was the common law as expounded here.

But it cannot be maintained that the contract between these parties was a Tennessee contract. It is by nó means clear even that it can be held that the contract was made there. It does not certainly appear where it was made. It cannot be said that a new contract was made every time a piece of paper was sent by the plaintiff to the defendant for collection. There was a general contract between the parties, which was either created by some negotiation, or which grew out of the course of business between them, that the defendant should collect the paper sent to it for the compensation to be allowed. If that contract was made by correspondence, the plaintiff making a proposition by mail and the defendant accepting it by mail, then when the acceptance was put in the mail at Memphis the contract was complete and. had its inception there. If the proposition came from the defendant and was accepted in the same way in New York, then it would have to be treated as made in New York.

In the absence of more proof than we have here it cannot be assumed that this contract was made in Tennessee. Nor is this to be regarded as a Tennessee contract for the reason that it was to be performed there, so that the defendant can claim that its obligations and interpretation is to be governed by Tennessee law. We cannot perceive how any substantial part of the contract was to be performed in Tennessee. The defendant was to collect this draft in Texas, and pay its proceeds, less its compensation, to the plaintiff in New York, and so the contract was to be performed in Texas and New York. Adams & Leonard collected the draft for the defendant in Texas and sent it their own draft on Jemison & Co. This draft the defendant sent to the First National Bank of New York for collection and credit. If the draft had been paid, then the defendant would have had credit for the amount with that bank, and would probably have sent its own draft on that bank to the plaintiff for the amount of the collected draft, less its compensation, and that bank would have paid that, draft on presentation, and thus the proceeds of the collected draft would finally have reached the plaintiff, and the obligation of the defendant would then, and not until then, have been fully discharged. So, always, the defendant having collected a draft sent to it by the plaintiff, and received the proceeds thereof, would, in the ordinary course of business, discharge its obligation to the plaintiff by payment through its corresponding bank in New York. Therefore we think it is quite clear that this contract cannot in any view be treated as a Tennessee contract, subject in any way to the law of that state.

Our conclusion therefore is that the order of the general term should be reversed and the judgment entered upon the verdict affirmed, with costs.

All concur.


author: Andrews, J.

text:
    Francis C. Lawrence, Resp’t, v. The Metropolitan Elevated Railway Co. et al., App’lts.

      (Court of Appeals,

      Filed June 2, 1891.)

    Railroads—Elevated—Evidence.
    In an action for damages to plaintiff's property through defendant’s railroad having been built through the street, the trial judge refused upon defendants’ request to find that plaintiff’s house was used as a house of prostitution to the knowledge of plaintiff’s agent, and also that for the purpose for which it was used the acts of defendant had caused no diminution in the rental value. Held, no error; the fact that the house had been so used did not enter as an element into the award of damages, nor could that fact be properly considered.
    Appeal from judgment of the Mew York common pleas, general term, affirming judgment in favor of plaintiff.

      Brainard Tolles, for app’lts ; Henry A. Forster, for resp’t.
   Andrews, J.

The judgment awarded to the plaintiff damages in the sum of $2,150, for loss in the diminution of rents of premises in Amity street, in the city of Mew York, owned by the plaintiff, between April 26, 1882, and the time of the trial, occasioned by the construction of the elevated railway in the street, and also awarded an injunction against the further maintenance of the structure, unless the defendant should pay to the plaintiff the sum of $4,000, which was found to be the permanent depreciation in the value of the plaintiff’s property, by reason of the maintenance and operation of. the defendant’s road, upon the assumption that the street should continue to be used for the railway.

The defendants do not assail these findings, nor question the measure or character of the relief granted by the judgment, except upon a single ground. Evidence was given tending to show that prior to the construction of the elevated railway, and from time to time subsequent thereto, during the period for which loss of rents was claimed and awarded, the house on the premises was let by the plaintiff to tenants, and was by them used as a house of prostitution ; the plaintiff during the whole period for which damages were claimed lived abroad, and the premises were placed in the charge of a real estate agent, who let them for the plaintiff.

The evidence on the part of the plaintiff tended to show that the construction and operation of the railway in Amity street had resulted in making the locality less desirable for residence purposes, and that in consequence the owners of tenant houses on the street were obliged, in order that they should be occupied, to let them to an inferior class of tenants for brief periods and at a reduced rent.

The plaintiff’s agent rented the house in question to such tenants as applied, and among others who occupied the house for a part of the period for which damages were awarded were persons who used the house for disreputable purposes. It is not claimed that the' house was let for the purpose of being used as a house of prostitution, and while there is some evidence tending to show that the plaintiff’s agent had notice that in some cases the house was so used and that he renewed leases after such notice, there is an entire absence of any evidence that the agent in any way affirmatively aided, abetted or countenanced such use, or that the rent was fixed with any reference thereto.

The locality seems to have steadily deteriorated in the character of its inhabitants since the construction of the railway.

The defendants’ counsel requested the trial judge to find that the plaintiff’s house was used as a house of prostitution to the knowledge of the plaintiff’s agent, and also that for the purposes-for which it was used the acts of the defendant had caused no-diminution in the rental value. The court refused these requests-as irrelevant and an exception was taken. Exceptions to the refusal to find these facts present the only questions upon which the defendants rely for a reversal of the judgment. The principle that courts will not lend their aid to enforce any claim repugnant to justice or bottomed upon an illegal transaction, or give relief contrary to good morals or public policy, is familiar and is founded upon the most obvious policy. The rule is most frequently invoked in cases on contract. Where a party seeks to enforce a contract obligation the consideration of which is illegal, or which provides for the performance of an illegal or criminal act, the case is plain. There is a class of cases, however, where the contract sued upon appears to have some relation to an illegal transaction, or, in a sense, to spring out of it, where the courts have had difficulty in determining whether the contract fell within the principle. The sale of smuggled goods, or the sale of goods which the vendor knew were purchased to be smuggled, doing nothing to aid or in furtherance of the illegal purpose beyond the bare act of sale, are exceptions. The general doctrine in these and like cases was very exhaustively considered in the opinions on the argument and re-argument in Tracy v. Talmage, 14 N. Y., 162; S. C., p. 210.

In the present case the plaintiff is not seeking to enforce an illegal contract, nor indeed any contract at all. His claim is based upon a trespass whereby he has been prevented from receiving rents from his house which he would have received except for the unauthorized use of the street by the defendants, and to restrain the further continuance of the trespass except on condition of compensation being made for the injury to the inheritance. The fact that the house had been used as a • house of prostitution did not enter as an element into the award of damages, nor could that fact be properly considered. If the plaintiff had sought to enhance the damages on the ground that the rental value of the house as a house of prostitution had been depreciated by the construction of the railway, and.the award had been based upon that consideration, the defendants would have had just ground of complaint. If the fact had been found that the acts of the defendants did not diminish the rental value of the house as a house of prostitution, it would not show or tend to show that the plaintiff had not been injured in the amount awarded by the court The testimony showed that the railway had diminished, by the amount awarded, the rents which would have been realized for the ordinary use of the property.

W e are of opinion that the requests to find were properly refused. They were based upon a misapprehension of the doctrine that courts will not enforce immoral or illegal claims. The particular use of the house had nothing to do with the injury suffered by the plaintiff, but the injury was wholly independent of such use. The occupation of the house as a house of prostitution was no justification of the injury of which the plaintiff complains. The plaintiff is not seeking to enforce any claim founded upon such occupation. The judgment neither satiations nor encourages such use. It awards damages which the plaintiff has sustained, however the house may have been occupied. The case of Ely v. Supervisors, 36 N. Y., 297, is quite analogous. It was there lield that it was no defense to the liability of a county for the destruction of the plaintiff’s house by a mob that the house was kept by her as a bawdy house and a resort for thieves and criminals.

The findings requested were irrelevant and the judgment should therefore be affirmed.

Judgment affirmed, with costs.

All concur.

       Affirming 35 N. Y. State Rep., 39.


text:
    Cornelius Ferguson, Resp’t, v. P. Sanford Ross et al., App’lts.

      (Court of Appeals,

      Filed June 2, 1891.)

    1. Constitutional law—Local bills—Laws 1875, Chap. 604; Laws 1886, Chap. 630.
    The act in relation to the depositing of carrion, offal, dredgings, etc., in the North and Bast rivers and the bay of New York, operates upon a subject in which the whole people are interested and is a general and not a local act.
    3. Same—New Yobk Bat—Jubisdiction oveb, vested in New Yobk.
    Although the deposit may have been made within territorial limits of New Jersey, it is within, the prohibition of said act, as the compact between New York and New Jersey vests exclusive jurisdiction over the waters of the Hudson, to low water mark, in the former state.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment for plaintiff, entered on verdict of jury.

      R. D. Benedict, for app’lts ; James C. Church, for resp’t.

       Affirming 35 N. Y. State Rep., 647.

   Andrews, J.

The statement of a few facts will be sufficient to present the questions on this appeal.

In 1875, an act of the legislature was passed, chap. 604, entitled “An act to prevent the deposit of carrion, offal, or dead animals in the North or East rivers or in the bay of New York, or Raritan Bay, within the jurisdiction of the state of New York.” The act among other things provided for the appointment by the governor of a shore inspector to report and prevent violations of the act, who was to be paid a salary by the state comptroller, to be raised by taxation on the counties of New York, Kings, Queens, Westchester and Bicbmond. The act was amended by chapter 414 of the Laws of 1885, by adding a new section, (§ 8), which extended the prohibitions in the original act and made it unlawful to deposit or allow to be discharged into the waters mentioned in the first section of the act of 1875 any material dredged or excavated from any slip, basin, shoal or other place, unless deposited above high water mark or behind a bulkhead for filling in, and provided a penalty for the violation of this section.

In 1886 (chap. 630) the original act was further amended, as was also § 8 of the act of 1885, but in a particular not material to the present inquiry.

This action was brought by the shore inspector under the provision of the statute against the defendant to recover a penalty for depositing dredgings from a slip in the city of New York into the waters of the North river, contrary to the eighth section of the act of 1886. It is not controverted on this appeal that in December, 1887, the defendants discharged into the waters of the river opposite the city of New York, on the New Jersey side, at a point about one-fourth of a mile from the New Jersey shore, a scow load of material dredged from a slip in the city of New York, in violation of the act. It is insisted, however, in the first place that the deposit having been made within the territorial limits of New Jersey, the state of New York has no jurisdiction to enact a law subjecting persons to liability for any act done within the territory of that state.

The case of People v. Central Railroad of New Jersey, 42 N. Y., 283, furnishes a satisfactory answer to this objection. By the compact entered into between New York and New Jersey, the particulars of which are set forth in the opinion in that case, the middle of the North river was declared to be the boundary between the two states, but by the third article exclusive jurisdiction of and over all the waters of the Bay of New York, and of the Hudson river lying west of Manhattan Island, and to the south of Spuyten Duyvil creek, and of and over the lands covered by said waters to low water mark on the New Jersey side thereof, was ceded to the state of New York, reserving to the state of New Jersey jurisdiction of wharves, docks and piers on the Jersey shore. The purpose of vesting exclusive jurisdiction over these waters in the state of New York was to promote the interests of commerce and navigation, which would, as-supposed, be best sub-served by giving to this state the exclusive control and regulation of the waters of the bay and harbor of New York.

The only remaining question is as to the constitutionality of § 8 of the act of 1886, which is assailed as a violation of article 3, § 16, of the constitution of this state. It is contended that the act of 1875 was a local bill, and that § 8 of the act of 1886 was an enactment of another local provision, covering a different subject from that embraced in the original act, and also that the subject of the new section was not expressed in the title of the act of 1875, or of the amended act of 1886. The trial judge entertained some doubt whether the act of 1875, as originally enacted, was a local act. But as we are of opinion that § 8 of the act of 1886 was a general, and not a local law, the examination of the other question is unnecessary, for it is well settled that a general provision inserted in an act containing local provisions is valid, whether the subject is expressed in the title or not, as general acts require an enacting clause only. Const., art. 3, § 14; People v. McCann, 16 N. Y., 58; Williams v. People, 24 id., 405.

The courts have, in some cases, found great difficulty in determining the application of article 3, § 16, of the Constitution. It seems impossible to fix any definite rule by which to solve the question whether a law is local or general, and it has been found expedient to leave the matter to a considerable extent open, to be determined upon the special circumstances of each case. There are, however, certain general principles to be deduced from the decisions. One of these is that a statute may be public and still local, and, therefore, within the purview of this provision of the constitution. In accordance with this view it has been held that acts constituting or defining the jurisdiction of local courts, amending charters of municipal corporations, regulating the appointment and election of local officers in a particular city, providing for the laying out of streets or highways or the construction of bridges in a specified locality, and for local taxation to pay the expense of the work, regulating the fees of officers in a particular county, or the expenses of judicial sales therein, although public acts, are nevertheless local, and to be valid the subject of the enactment must be expressed in the title. People v. O'Brien, 38 N. Y., 193 ; People v. Supervisors of Chautauqua, 43 id., 10; Gaskin v. Meek, 42 id., 186; Huber v. People, 49 id., 132; Kerrigan v. Force, 68 id., 383; People ex rel. v. Livingston, 79 id., 279 ; People ex rel. City of Rochester v. Briggs, 50 id., 553; In re Sackett St., 74 id., 103; Tifft v. City of Buffalo, 82 id., 211.

Another rule evolved by the discussion of the subject is that an act embracing within its scope all the cities of the state, or all things of a certain class, is a general and not a local act, although by reason of some limitation based on population or other condition only a particular city or the inhabitants of a single locality can in the actual situation receive its benefits. In re N. Y. El. R. R., 70 N. Y., 328 ; In re Church, 92 id., 5.

The fact that an act operates only upon a limited area or upon persons within a specified locality, and not generally throughout the state, is in most cases a reasonably accurate test by which to determine whether the act is general or local. But it is not decisive in all cases. The entire state may be interested in the enactment and execution of a law operating territorially upon a particular section of the state only. In some general sense all the people are or may be interested in laws of a public character, although local, as for example in the administration of justice in the city of New York, the construction and reparation of streets and highways in whatever locality they may be. This is not, however, such a direct interest as makes laws providing for local courts in a specified locality, or for the construction of a bridge, general.

But are laws regulating quarantine in the port of New York, or the landing of immigrants therein, local in the same sense as laws relating to city courts or to a particular highway or street ?

The eighth section of the act of '1886 was manifestly for" the protection of the harbor of New York in the interest of commerce and navigation. The citizens of New York city may possibly have a greater stake in the matter than citizens in other localities. But the destruction or serious impairment of the harbor of New York would directly affect the prosperity of the state. It would impair its revenues, imperil its system of river, canal and railroad transportation, and it is not too much to say that every industrial interest, agricultural or mechanical, would feel its blighting influence. A law having for its object the protection of the navigation in thehabor of New York is, we think, general and not local. The act is limited territorially, but the subject is both public and general.

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur, except Gray, J., absent