text:
    M. J. TRUESDELL, Administratrix, etc., Plaintiff, v. HENRY BOOTH, Defendant.

      Tenant—surrender of premises by — chap. 345, Lems of 1860.
    A tenant who, by Ms lease, agrees to make all necessary repairs, cannot surrender the possession of the premises and refuse to pay rent, on the ground that the walls of the house were unusually damp, and that in consequence thereof his family became and remained sick for some time.

      Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, a verdict having been directed for the plaintiff at the Circuit.

      O. J. Wells, for the plaintiff.

      Henry Brodhead and D. G. Harriman, for the defendant.
   Tappen, J.:

The defendant hired a dwelling-house from the plaintiff, and after entering into occupation, he .paid rent up to a certain time, and gave notice to the plaintiff that he would not be bound, and would not remain for the remainder of the term; and he abandoned the premises. The reason given by the defendant is, that the premises were not tenantable. The house was a brick dwelling in Suffield street, Brooklyn. The defendant alleged the walls to be unusually damp, and that his family became and remained sick for some time by reason of such dampness. The plaintiff refused to receive the premises, and brought this action for rent. After testimony on both sides, the court ordered a verdict for the plaintiff for the sum claimed, and directed the defendant’s exceptions to be heard" at the General Term in the first instance. The defendant’s request to go to the jury was refused.

The tenant, in addition to the yearly rent of $800, also covenanted to make necessary repairs. The landlord’s agent testified that this covenant had the effect of reducing the rent slightly, as compared with the rent paid by a prior tenant. There was no covenant to repair on the part of the landlord ; no act amounting to an eviction on his part is shown ; and wrongful acts of the landlord, which are mere negligence or trespass, do not bar the rent; although the rule is otherwise where the landlord creates a nuisance near the premises, or is guilty of acts which preclude the tenant from the beneficial enjoyment thereof, provided, in such case, the tenant shall abandon the premises by reason thereof Vermin or noxious smells in and about the house, do not constitute eviction, so as to justify abandonment of the premises by the tenant. The case presents no fact whereby the right of abandonment can be held to have accrued to the tenant for any act or omission of the landlord. Reference is made by the tenant to chapter 345 of the Laws of 1860, which provides as follows: “ The lessees or occupants of any building which shall, without any fault or neglect on their part, be destroyed, or be so injured by the elements, or any other cause, as to be untenantable and unfit for occupancy, shall not be liable or bound to pay rent to the lessors or owners thereof, after such destruction or injury, unless otherwise expressly provided by written agreement or covenant; and the lessees or occupants may thereupon quit and surrender possession of the leasehold premises, and of the land so leased or occupied.” The construction given to this statute in Suydam v. Jackson, does not make it available as a defense in this action.

We see nothing in the case which, by operation of law, exonerates the defendant from his liability to pay the rent; and the plaintiff should have judgment on the verdict, with costs.

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

Barnard, P. J., dissented.

Judgment for plaintiff on the verdict, with costs.

       Edgerton v. Page, 20 N. Y., 281; Ogilvie v. Hull, 5 Hill, 52.

       Dyett v. Pendleton, 8 Cow., 728; Gilhooley v. Washington, 4 N. Y., 217.

       Westlake v. De Graw, 25 Wend., 669; Vanderbilt v. Persse, 3 E. D. Smith, 428.

       54 N. Y., 453.


source: Caselaw Access Project

author: Gilbert, J.:

license: Public Domain

text:
    MICHAEL MURPHY, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      What evidence sufficient to authorize conviction in m’wiinat eases— Panol evidence— when contents of written documents may he proved hy.

    To authorize a conviction in criminal cases, upon circumstantial evidence, it is not necessary for the prosecution to prove the case, to the exclusion of every possibility that the crime was committed by a person other than the prisoner; it is sufficient if the evidence satisfy the understanding and conscience of the jury, and exclude from their minds all reasonable doubt of the guilt of the accused.

      Upon the trial of the plaintiff in error for murder, a witness was allowed to testify that he was defendant in several suits in which the plaintiff in error and others were plaintiffs, and that he, together with the deceased, had been several times to attend the trial of them. He was then allowed to testify, against the objection of the plaintiff in error, as to what the suits were brought for. The prosecution offered the evidence to show that the motive of the prisoner in committing the murder was to prevent the deceased from testifying against him. Held, that as the objection was general it could not now be insisted that the contents of the pleadings in such suits could not be proved by parol.
    Exceptions to the rule as to the admission of parol evidence of the contents of written instruments stated.
    Writ of error to the Court of Oyer and Terminer of Rockland county, to review the conviction of the plaintiff in error of murder.
    On the evening of the 19th of April, 1871, while Mrs. Hujus, Robert J. Gamble and a servant girl, were sitting’ in a room in their house, at Hanuet, Rockland county, Hew York, some kind of fire-arm was discharged from the outside, through the window of the room, wounding Mrs. Hujus and Gamble, from the effects of which wounds Mrs. Hujus died shortly after. The plaintiff in error was tried and convicted of having murdered her.

      Henry Daily, Jr., for the plaintiff in error.

      Seth B. Cole, district attorney, for the defendants in error.
   Gilbert, J.:

We are not called upon to examine the evidence to see whether it was sufficient to warrant the conviction of the prisoner. Upon that question the verdict of the jury is conclusive. Our duty is confined to the errors assigned in the bill of exceptions. Those relate exclusively to the admissibility of certain parts of the testimony. Ho exception was, or well could have been, taken to the charge of the judge. It is indeed said that it was his duty, without any request to do so, to instruct the jury that “ one of the legal principles governing cases of this kind, where circumstantial evidence is relied on to convict, „is, that the people must prove the case to the exclusion of every possibility that another person, and not the accused, may have committed the crime.” Ho exception can be raised upon this point, for the attention of the judge was not in any way called to the rule contended for; it is wholly an afterthought. Hor is there any such rule. On the contrary, the legal test of the sufficiency of every species of evidence to authorize a conviction, is its adequacy to satisfy the understanding and conscience of a jury, and to exclude from their minds all reasonable doubt of the guilt of the accused. Such is the rule of the common law; and it has always prevailed in this State.

It is insisted that the court below erred in admitting parol evidence to prove what certain law suits of the prisoner and his brother, against one Gamble, were for. Gamble was called as a witness for the prosecution, and testified, without objection, that he was one of the defendants in those suits; that there were' three suits; that they had been standing since 1868 ; that he had been several times to attend the trial of them; that he was accompanied by Mrs. Hu jus (the deceased), he did not know how many times, but that she always went when the trial was coming off.. The witness was then asked if he knew what the suits were for, and answered without objection that he did. He was then requested to tell the jury what they were for. To this the prisoner’s counsel objected, but' stated no ground of objection. The evidence was admitted, and an exception was taken to the ruling of the court by the prisoner’s counsel. M e think the exception is unavailing, because the objection was not put upon the ground that the fact could not be proved by parol. If it had been it might have been obviated, or the testimony withheld by counsel, or excluded by the court. For this reason it is an ancient and sound rule, that, when the objection is to the mode of proving a fact, and not to proof of the,fact itself, it must be distinctly placed upon that ground. The rule is essential? to insure fairness, and to prevent artifice and deception in the trial of causes. It governs trials in criminal as well as civil cases, and, in our opinion, ought to he steadily upheld whenever a case of either class is brought up for review. Especially should, the rule be firmly adhered to in a case like this, where the objectionable evidence is not material to the issue, but is of a collateral fact of little importance. The only conceivable object 'of the testimony was to prove that the prisoner had- a motive to kill the deceased, in order to prevent her from testifying against him. In that point of view, we are unable to perceive upon what principie the nature of the suits would affect that motive. Whether the object of the suits was to set aside deeds or to recover money, or for either of numberless other causes of action, was not material. The case, at all events, discloses nothing from which it can be inferred that the particular object of the suits strengthened the prosecution or weakened the defense. It does not even show that the deceased was possessed of any knowledge, which might render it necessary or expedient for Gamble to call her as a witness. The fact that she attended the court in his company, did not show that she was to be a witness on the trial. Having allowed the prosecution to prove without objection the pendency of the suits, the prisoner could not have been prejudiced by the evidence respecting the object of them. The error, therefore, if any was committed, affords no ground for reversing the conviction.

These conclusions render it unnecessary to decide whether the object of the suits could be proved except by the production of the pleadings in them. Still, a brief discussion of the subject may be due to the occasion.

The general rule, undoubtedly, excludes all instruments which the law requires should be in writing, or which have been put in writing by the parties, and all other writings the existence of which is disputed, and which are material to the issue, But the rule is not universal. For instance, births and marriages may be proved orally by those who witnessed them, notwithstanding the law requires a registry of them to be kept. And where the written communication or agreement is collateral to the issue it need not be produced. The fact of payment may be proved orally, though a receipt be taken; and the examination and confession of a prisoner, taken down in writing by the magistrate, but not signed and certified, are provable by oral testimony. Many other instances of a similar kind are given in the books. Mr. Best states the rule to be, that “ when a written instrument or document of any description is not a fact in issue, and is merely used as evidence to prove some act, independent proof aliunde is receivable.” That rule does not, as it seems to us, conflict with the principle on which the exclusion of parol evidence of the contents of written instruments rests. If, however, we should be wrong in this, we think, for the reasons stated, that all objection to proving the fact orally was waived, and that it would be contrary to law to allow the exception.

We perceive no error in admitting evidence of the measurements made by the witness Pinkerton; other witnesses had given the data on which they were made, and it was proper to put the result before the jury.

In whatever light the conduct of Pinkerton and Sharpe, in obtaining the confessions of the prisoner may he regarded, we have discovered nothing in the circumstances attending the giving of them, which tends to show that they were not voluntarily made, or which would have justified the exclusion of them. The jury had these circumstances before them, accompanied by the evidence of the prisoner respecting them, and it was their province, exclusively, to determine the weight to be given to confessions made under such circumstances.

We have now noticed all the exceptions worthy of remark. Ho error having been found, it is our plain and imperative duty to affirm the conviction. We have no dispensing power; that has been deposited with the executive department of the government. From the courts the community has a right to demand a vigilant and firm execution of the law; for their safety is in a great degree dependent upon it.

Conviction affirmed.

Present — Gilbert, Tappen and Pratt, JJ.

Conviction affirmed.

        1 Stark. Ev., 577; 1 Greenl. Ev., 13.

       People v. Gonzalez, 35 N. Y., 49-59.

       Greenl. Ev., § 85; Best Ev. (5th ed.), 310.

         Greenl. Ev., §§86,90; Best Ev., supra.


text:
    FRANCES H. McCOTTER, Respondent, v. ANDREW LAWRENCE, Executor, etc., of ABRAHAM R. LAWRENCE, THE NEW YORK LIFE INSURANCE AND TRUST COMPANY and ABRAHAM R. L. NORTON and CECILIA A. NORTON, Impleaded, etc., Appellants.

      Specific performance of contn'act to convey land—who are necessany pm'ties to action for—Gode, § 97 — Statute of limitations.

    All who are interested in a contract for the conveyance of land, must join with the plaintiff in an action brought for its enforcement, or a valid excuse for their not joining with the plaintiff must be shown.
    Such defect is not remedied by a judgment directing a conveyance to ho made to the plfl&tiff and her co-owners and their assigns, without naming them, as such co-owners have a right to elect to accept a specific performance, or to sue for damages for a breach of contract. Such an action is within section 97 of the Code.
    In an action in equity by a vendee in an executory contract for the sale of lands, no proof of a demand or tender of performance, on his part, before instituting suit for a specific performance is necessary, but an offer to perform, made in the complaint, and ability to perform at the time of the decree, are sufficient; and the statute of limitations begins to run without any formal denial by the vendor of the right of the vendee.
    Parol admissions and acts in pais are no longer sufficient to prevent the operation of the statute of limitations.
    It is only when the vendee has become entitled to a specific performance of the contract by the vendor, by reason of a full performance thereof by the vendee, that the vendor will not be allowed to disturb his possession, or to interpose the statute of limitations as an obstacle to his right to have his equitable title perfected by a conveyance of the legal estate.
    A court of equity has no more power to disregard the statute of limitations than a court of law.
    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.
    The action was brought by the plaintiff, as assignee through various mesne assignments of Alexander McCotter, to compel performance of a contract between him and Abraham R. Lawrence, deceased, dated January 22, 1853, for the sale to McCotter of forty-five acres of land, situated at Newtown, Long Island, for the price of $20,250, payable, $5,000 on June 1, 1853, $5,000 on September 1, 1853, and $10,250 in a bond and mortgage of three years.

      The contract recited the intention of McCotter to divide the forty-five acres into small lots, and Lawrence agreed, at the expense of McCotter, to give separate deeds for the particular lots. Abraham R. Lawrence died on August 3, 1863. The defendants were his executor, heirs at law, legatees and devisees. By the arrangements for the settlement of his estate, all the interest of Lawrence vested in the defendants Abraham R. L. Norton and Cecilia A. Norton, and in the New York Life Insurance and Trust Company, as trustee for them; and they, with the executor, alone appeal.
    The complaint alleged the contract; the assignment of a half interest from McCotter to John H. Cornell and Frederick Pentz; the conveyance by Lawrence of 103 of the lots; the payment, prior to the times fixed in the contract, of $17,000 (on the trial this allegation was amended so as to state the true amount paid, $19,000, leaving only $1,250 of the price due); that McCotter had entered into and retained possession; that Lawrence, from time to time, down to 1861, had executed, conveyances, acquiescing in the postponement of the balance due, and that, after his death, McCotter had applied to the defendant Andrew Lawrence, as executor, for a deed, offering to pay the balance due, with interest; that the executor had put him off on various pretexts, and that, in the end, it had been necessary to sue.
    Abraham R. L. Norton and Cecilia A. Norton were infants at the commencement of the action, and they interposed answers; the defendants Andrew Lawrence, as executor, and the Trust Company, also answered, and the several answers substantially put the plaintiff to proof of all allegations of her complaint.

      J. S. Lawrence, B. J. Blankman and B. Robinson, for the appellants.

      John E. Parsons, for the respondent.
   Gilbert, J.:

Setting aside many considerations which might influence our discretion in granting or refusing a decree in this case, if the plaintiff were otherwise entitled to a specific performance of the contract, we are of opinion that the judgment appealed from cannot be sustained upon any ground, legal or equitable.

The legal title to the lands in controversy is unquestionably vested in the New York Life Insurance and Trust Company. The plaintiff proved nothing more at the utmost, than an equitable title to an undivided moiety thereof; and yet, on that proof alone, she has obtained a judgment, which, if affirmed and executed, would divest the Trust Company of its whole estate in the lands. This bare statement of the result of the trial, I am sure, is sufficient to demonstrate that the judgment is erroneous.

Those in whom the equitable title to the other moiety is vested, were necessary parties plaintiff. A decree cannot, with any show of justice to the defendants, be made without their presence. The law will not tolerate a suit to enforce a contract by piece-meal. All who are interested in having a contract performed must join in a suit therefor, or a valid excuse for their not joining with the plaintiff must be shown. The statute on this subject is imperative, and is merely declaratory of a very ancient rule. This proposition seems to be incontestable, and, in a case like this, ought to be rigorously enforced, because it is manifest 'that the court cannot determine the controversy before it, without prejudice to the "rights of the defendants, as well as those of the absent plaintiffs, if, indeed, any of the parties have any rights under the contract. The attempt made by the referee to obviate the objection arising from the defect of parties, by directing a conveyance to be made to the plaintiff and her co-owners, and their assigns,- without naming them, cannot be sanctioned. If such co-owners retain their interest under the contract, they have a right to elect whether they will accept a specific performance, or sue for damages for a breach'of the contract. The plaintiff cannot make that election for them. They could not, it is true, sue alone; yet, if an action at law for such damages should be brought by all the parties interested in the contract, the judgment in this suit would not be a bar thereto. That judgment, therefore, affords no protection to the representatives of the vendor against the exercise of that right. Nor would the conveyance ordered be equivalent to a performance of the contract as to such co-owners, even if we might assume that they preferred land to money; for the reason that the judgment does not establish their rights. Another adjudication would be necessary to ascertain who were intended as grantees, or the persons answering to the description of them contained in the conveyance, and to determine their respective interests. Furthermore, the Trust Company has a clear right to remain vested with its legal title, until a paramount claim on the part of such co-owners shall have been successfully asserted by them.

We think, moreover that the right of action upon the contract has been barred by the statute of limitations. The case is within section 97 of the Code, which provides that the suit must be commenced within ten years after the cause of action accrued. It has been settled by a series of decisions, that the cause of action in. equity of a vendee in an executory contract for the sale of lands, accrues whenever he becomes entitled to sue for a specific performance of the contract. No demand, or tender of performance on his part, is necessary before instituting such a suit, but an offer to perform, made in the complaint, and ability to perform at the time of the decree, are all that are requisite. And the statute begins to run without any formal' denial on the part of the vendor of the right of the vendee. In Peters v. Delaplaine, there was no denial of the vendee’s right, but there was only a failure to perform by the vendor, because his wife refused to sign the deed to be given by him. Upon the principle stated, the cause of action upon this contract accrued in January, 1856 ; and the suit was not commenced until October, 1870. We are unable to perceive why, if the plaintiff has any cause of action now, she, or those under whom she claims, had not the same cause of action, at any and all times between January, 1856, and January, 1866. Although neither of the parties to the contract chose to exercise the rights given by it, that fact did .not postpone the accruing of the cause of action. Nor did the demand for a conveyance, made after the death of the vendor, avoid the bar of the statute, or create a new cause of aetion.

The referee has not found that the time for the performance of the contract by the vendor was extended, nor is there any evidence that it was extended. The declaration made to Mr. McMahon by the vendor, that the vendee “need not trouble himself about anything he owes me,” etc., did not have that effect, independently of the objection that it was not in writing, which will be noticed hereafter. At the utmost, it ivas a mere postponement of the exercise óf the vendor’s present right to enforce the contract against the vendee, but it did not take away or affect any' right which the vendee had against the vendor. The referee strained the evidence, when he called it an agreement that the balance due on the contract might remain pending the appeal. But if it was an agreement, it was nudum, pact/u/m.

The referee denied the appellants’ motion to dismiss the complaint, made upon the ground that the suit was barred by the statute of limitations, but did not state any reason therefor; nor did he find any of the facts upon that subject. He evidently placed his decision, that the suit had not been barred, upon the supposed agreement made through McMahon, before mentioned, and upon the following facts reported in the findings, namely: That shortly after the contract, the vendee entered into possession of the premises in controversy, and continued to be in possession thereof^ and to exercise ownership over the same, down to the commencement of this suit; and that he paid taxes thereon, and expended considerable sums of money in opening and grading streets, and other improvements; that the vendor died August 3, 1863, and down to his death no proceedings were taken by him, so far as appeared, either to require payment of the balance due upon the contract, or to divest .any rights under it; and that he had, as late as on or about April 16, 1861, and from time to time down to that date, continued to execute conveyances of parts of said premises, at the instance of the vendee.

Parol admissions and acts in pais are no longer sufficient to prevent the operation of the statute of limitations. For, by section 110 of the Code it is provided, that no acknowledgment or promise shall be sufficient evidence of a new or continuing contract, whereby to take the case out of its operation, unless the same be contained in some writing signed by the party to be charged thereby. The only writing signed by the vendor within ten years before the commencement of this action, is a deed, dated April 16, 1861, to one Herring. But that has no legal significance here as a written acknowledgment, because it was made merely to effect an exchange of lots, which the vendor had conveyed in 1853, for the lots described in the deed. It was not, in any sense, a transaction based on the continued obligation of the contract, but a substitute for an old one, done while the contract by its terms was in force. Nor is the case materially affected by the question of the possession of the lots which have not been conveyed. It is only where the vendee has become entitled to a specific performance of the contract by the vendor, by reason of a full performance thereof by the vendee, that the vendor will not be allowed to disturb his possession, or to interpose the statute of limitations as an obstacle to his right to have his equitable title perfected by a conveyance of the legal estate. In such a case the decree enforces a trust rather than a contract. The court would afford the same relief if there were no formal contract. It may not be amiss to remark, however, that, in our opinion, the fact that possession was taken by the vendee under the contract, was not sufficiently proved. Possession was not provided for in thq contract. The consent of the vendor, therefore, was necessary to effect any valid change of possession. The only witness on the subject was the vendee, and he was not a competent witness to prove such consent.

The provision of the Code, requiring a written acknowledgment to take a case out of the statute of limitations, has effectually destroyed the old doctrine on which courts of equity relieved vendees from forfeitures incurred in consequence of their failure to perform executory contracts for the sale of lands. That doctrine rested on the principle, that time was not of the essence of the contract. But now the statute has interposed an absolute bar after the lapse of ten years. It would be a violation of this statute, to give to the acts of the vendor - referred to, such an effect as would suspend its operation. The statute itself provides, that the time during which certain specified disabilities may continue shall not be computed; but none of those acts are included among them. Courts of equity have no more power to .dispense with a statute than courts of law. When they have apparently done so, it has been upon the idea that the facts of the particular case took it out of the statute. Contracts which could not be enforced at law, because they were not made conformably to the statute of frauds, have been rendered effective by courts of equity on that ground, and, by our statute of frauds, the right to do this is expressly reserved to those Courts by the proviso, that nothing therein contained shall be construed to abridge their powers to compel the specific performance of agreements in cases of part performance thereof. It must be presumed, that if the legislature had intended to authorize a like exception in the statute of limitations, they would have inserted in it a similar proviso. However that may be, I know of no principle that would justify the court in refusing to execute a statute in a case clearly within its provisions. We must, therefore, hold the law to be, that with the exception of cases where the contract has been fully performed on the part of the vendee, or there has been a waiver by the vendor of the benefit conferred by the statute of limitations, neither part performance, nor any other considerations which have heretofore actuated courts of equity in decreeing the specific performance of contracts, notwithstanding the lapse of time, can be allowed as an answer to the peremptory bar created by section 97 of the Code, without the written evidence required by section 110 of the Code. For the part performance in this case, the vendee received an equivalent in the lifetime of the vendor, by a conveyance of nearly two-thirds of the property agreed to be conveyed, upon making payments amounting in the aggregate to no more than a proportionate part of the price. The referee, we think, erred in respect to the payments, by giving the vendee credit for property which, although originally taken by the vendor in payment, was returned to the vendee and retained by him. Making allowance for this and for interest, the price of the Land conveyed and the amount of the payments would be very nearly equal. The last payment on the contract appears to have been made in 1853, ten years before the death of the vendor. No suit having been instituted to obtain a * conveyance of the remainder of the lots during a period of nearly fifteen years after the cause of action accrued, and of seven years after the death of the vendor, we think it would be inequitable to undo the bar of the statute, even if we had the power to do so, especially as rights of devisees and of strangers have intervened.

We have considered several minor questions presented on the argument, but enough has been said to dispose of the ease without discussing them.

The judgment must be reversed and the complaint dismissed, with costs.

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

Judgment reversed and complaint dismissed, with costs.

       Code, § 119.

       Bruce v. Tilson, 25 N. Y., 194; Peters v. Delaplaine, 49 id., 362.

        Supra.

         Roberts v. Sykes, 30 Barb., 177.

       25 N. Y., 196.

       Miller v Bear, 3 Paige, 466; Bruce v. Tilson, supra.

       Code, § 399.

         Story Eq. PL, §§ 75, 831.

       Wetmore v. White, 2 Cal. Ca., 109; Rhodes v. Rhodes, 3 Sandf. Ch., 279.

       2 R. S., 135, § 10.


text:
    GEORGE W. BARNETT, Respondent, v. THE CHICAGO AND LAKE HURON RAILROAD COMPANY, Appellant.

      Non-resident corporation—process, how served upon—effect of judgment against— 2 R. S., 458, 459.
    At common law, process against a corporation must be served on its head or principal officer, within the jurisdiction of the sovereignty where the artificial body exists.
    A judgment recovered in an action commenced against a foreign corporation under the provisions of the Revised Statutes (2 R. S., 458,459; Laws 1842, chap. 197) binds only the property of the corporation within this State, and has no extraterritorial force.
    Under the statutes of this State, service within this State on the proper officer of a foreign corporation, is equivalent to personal service on a non-resident natural person. If such personal service cannot be made, service may be- made by publication against corporations in the same cases in which it can be made against non-resident individuals.
    The provisions of the Code in respect to the “provisional remedy” of attachment, and to the entering of judgment, apply alike to non-resident individuals and to foreign corporations.
    Effect of judgment against a non-resident corporation which has no property within this State discussed.
    Appeal from an order denying a motion made on behalf of the defendant (counsel appearing for that purpose only) to set aside the service of a summons in this action, which was served in the city of New York on the president of defendant. The cause of action was alleged to have arisen in this State. The motion was .made on affidavits showing that the defendant was a foreign corporation, and had no property and no officers or agencies in this State. The motion was denied.

      Sinnott & Meyer, for the appellant.
    A corporation has no legal existence out of the boundaries of the sovereignty by which it was created. (Angell and Ames on Corp., § 104, p. 79, and cases there cited; 1 Black, 286.) It follows inevitably that a corporation cannot be served personally outside of the State giving it its existence; hence that the courts of this State cannot acquire jurisdiction of the person of a foreign corporation, unless by voluntary appearance. (18 How. Pr., 218; Brewster v. Michigan Central R. R. Co., 5 id., 183; Howell v. Chic. and No. West. Railway Co., 51 Barb., 378; Bates v. N. O., J. and Grt. Nor. R. R. Co., 4 Abb. Pr. [N. S.], 72; 30 Barb., 164.) To make a judgment valid, it is necessary that the court rendering it should have jurisdiction of the subject-matter, and, in addition thereto, either of the person or of the property of the defendant. (Thompson v. Whitman, 18 Wall., 157, and the cases there cited; D'Arcy v. Ketchum, 11 How., 165 ; Knowles v. Gas-light and Coke Co., 19 Wall., 58.)

      Robert Sewell, for the respondent.
   Gilbert, J.:

At common law, jurisdiction over a foreign corporation could not be acquired by the service of process upon an officer thereof, outside of the State which gave it existence. In M'Queen v. Middletown Manufacturing Company, the rule of the common law is thus stated by Spencer, J.: The process against a corporation must be served on its head or principal officer, within the jurisdiction of the sovereignty where this artificial body exists. If the president of a bank of another State were to. come within this State, he would not represent the corporation here ; his functions and his character would not accompany him when he moved beyond the jurisdiction of the government under whose laws he derived this character.” Consequently, the court in that ease set aside an attachment on the ground that a statute which authorized attachments against the estates of non-resident debtors, generally, did not apply to foreign corporations. The same principle has been decided in numerous cases. It is, however, within the competency of the legislature to authorize suits against foreign corporations. The Revised Statutes gave such authority and prescribed the manner in which it should be exercised, This proceeding it is true was substantially in rem. The judgment in it bound only the property of the corporation within this State, and it had. no «^«-territorial force. I never heard the validity of this legislation called in question, and it was not disputed on the argument of this case. An attempt was made to show that, while the legislature had power to authorize a suit against a foreign corporation in rem, it had none to authorize one in personam. But no good reason for such a distinction was stated, or has ever been brought to my knowledge. If the legislature has power to authorize any.suit, they may prescribe what kind and the mode of procedure in it. There is nothing constitutional or fundamental in the method of procedure in an action. The legislature might have provided that the suit under the Revised Statutes might be commenced by summons, with publication of notice, and have directed that the property might be seized only after a judgment had been entered, and then by execution thereof. Or the attachment might have been made a mere incidental remedy in the suit. In short, the mode and order of procedure might have been changed without changing the nature and effect of the judgment. The presence of property in the State was necessary to uphold the validity of the proceeding, only because the legislature had made it so. The only question, therefore, is whether the proceeding in this case is authorized by the Code. This court has held, on two occasions at least, that it is; and we think these decisions are correct. The successive amendments to the Code demonstrate the intention of the legislature on this subject very clearly. That statute, in 1849, authorized a suit against a foreign corporation, by a resident of the State, for any cause of action. Section 427 has never been changed. The Code of 1848 also enacted that all actions should be commenced by summons, and prescribed the mode of service on individuals and on corporations; on the latter by delivering a copy to the president or secretary, etc.; but, by section 135 it was enacted, that if the person on whom service is to be made cannot be found within the State, publication should be made, in cases against foreign corporations as well as non-resident individuals. The condition on which publication is required is in each case the same, namely, that theperson to be served cannot be found within the State. The same statute authorizes attachments to be issued against foreign corporations as well as individuals, but does not require an attachment to be issued as an element of jurisdiction. The attachment, however, can be issued only in an action. In 1851, section 134 of the Code was amended by the provision that service should not be made on a foreign corporation unless it had property within the State, or the cause of action arose therein ; and although section 135 was also amended at the same time, yet, when these facts existed, the mode of service of a foreign corporation was left the same as before. By the act of April 10th, 1855, the legislature took another step in advance, and authorized service to be made on agents of foreign corporations, or persons who acted as such, when such corporations were doing business in this State. In 1859, a decisive amendment was made to section 134 of the Code, by enacting that service may be made upon a foreign corporation, not only when it has property within this State, or the cause of action arose therein, but when such service shall be made within this State personally, upon the president, secretary, or treasurer thereof. There has been no change in the law, in respect to publication, since the amendment of 1859. The history of the legislation on this subject, therefore, demonstrates the intention of the law makers to have been, to make service within the State on the proper officer of a foreign corporation, equivalent to personal service on a non-resident natural person. If the non-resident individual, or the proper officer of the foreign corporation is within the State, the mode of service is the same; and publication is not required in either case. If not in the State, and such service cannot be made, there must be publication in both cases ; and jurisdiction is thereby acquired, if either the individual or the corporation has property in the State, or the cause of action arose therein. So, too, the provisions of the Code, in respect to the provisional remedy ” of attachment, and to the entering of judgment, apply alike to non-resident individuals, and to foreign corporations; not the slightest distinction is made between them.

What the effect of a judgment, recovered according to law, against a foreign corporation which has no property in this State, may be, it seems to me, is an inquiry which has no bearing on the case. “ It would operate on nothing in the State,” as was said by Judge Roosevelt ; but I am not certain that “ it would be regarded by nobody out of it.” It is not necessary that a judgment should be universally binding to give it validity in the State where it was recovered. There is some reason for saying that such judgment ought to be universally binding. A large number of foreign corporations have, in fact, migrated into this State, and established offices here. They make contracts here. Why should not those contracts be enforced here? If the corporation makes the contract by its officers, it ought to be amenable to the jurisdiction of the courts of the place where the contracts are made; and that can be accomplished only by allowing a service thereof on its officers. It is only by such a service that jurisdiction of a corporation can be acquired anywhere; and if it can thus be acquired in one place, I am at a loss to perceive why it may not in any other.

Without adverting to the decisions on this subject, cited on behalf of the defendant, I will only repeat that I think the cases decided in the first and fourth departments, before cited, are sufficient authority for the conclusion that the order appealed from should be affirmed.

Present— Gilbert and Tappen, JJ.

Order affirmed, with ten dollars costs.

       16 Johns., 5.

       Nash v. The Rector, etc., 1 Miles, 78; Dawson v. Campbell, 2 id., 171; Clark v. N. J. S. Nav. Co., 1 Story, 531; Lafayette Ins. Co. v. French, 18 How. (U. S.), 404; Peckham v. North Parish, etc., 16 Pick., 286.

       2 R. S., 458, 459; Laws 1842, chap. 197.

       Prouty v. Mich. S., etc., R. R., Co., 4 N. Y. S. C., 230, and Ives v. The Memphis, El Paso and Pacific R. R. Co., Fourth Dep., April, 1874, not reported.

       Sec. 427; see, also, Laws 1849, chap. 107.

       Sec. 127.

         Sec. 134.

       Sec. 227.

       Page 470.

      30 Barb., 171.

       See 41 Geo., 661-670; Const. U. S., art. 4, § 1.


author: Gilbert, J.: Barnard, P. J.

text:
    HENRY S. BALDWIN, Appellant, v. LAWRENCE BARRETT, Respondent.

      Arbitration after judgment and, pending appeal, of matters determined by the judgment— effect of.

    When parties, pending an appeal from a judgment in an action in which they are the parties, enter into an agreement to arbitrate the matter in dispute in the action in which judgment has been recovered, such action implies a mutual abandonment of the judgment. The fact that the submission to arbitration is not acted upon within the time therein designated, does not revive the judgment thus abandoned by its being entered into. (Barnard, P. J., dissenting.)
    Appeal from an order made at the County Court of Putnam county, staying the proceedings in this action, and directing the return hy the sheriff of an execution issued herein.
    This action was brought in a Justice’s Court by Baldwin against Barrett, and judgment rendered in favor of Baldwin for $135 and costs, April, 1866. Appeal was taken by Barrett to County Court of Putnam county, May 26, 1866, but no bond on such appeal was given.
    On July 7, 1866, while such appeal was pending, the parties entered into an agreement under their hands and seals, reciting that disputes and litigation had arisen between them in relation to divers matters growing out of certain horse trades and the purchase of a cow, submitting all matters in dispute between the parties to arbitration, and agreed to abide by and perform the award, “ provided the said award be made in writing and ready to submit and deliver to said parties, or such of them as may desire the same, on or before the 1st day of December, 1866.” It was further agreed that judgment might be entered in the Supreme Court on the award. Nothing was done under the submission.
    On February 18, 1867, the appeal was dismissed on Baldwin’s motion, and subsequently an execution was issued on the judgment of the justice, a transcript of which was filed in the county clerk’s office, and Barrett’s property advertised for sale. On January 7, 1868, the County Court of Putnam county made an order staying proceedings on the execution, and directed its return to the office of the clerk of said county. Baldwin thereupon appealed to this court.

      Wm. R. Baldwin, for the appellant.

      C. Frost, for the respondent.
   Gilbert, J.:

The necessary effect of the submission was to extinguish the judgment and to waive the appeal. It related to the same subject-matter, and provided for the entry of a judgment in the Supreme Court upon the award. The parties to it had, by it, secured a retrial of the controversy between them. If it had been made pending the suit in which the judgment was recovered, it is conceded that its effect would have been to discontinue the suit, and such, no doubt, is the rule of law. The reason is, that the parties have selected another tribunal for the trial of the case. The same reason applies after judgment as well as before, unless it be agreed that the judgment shall remain as security, or for some other collateral purpose. The submission shows the intention of the parties to abandon the litigation in court, and to resort to another method of determining the controversy between them. This necessarily implies a mutual abandonment of all previous proceedings. To use the language of Beardsley, J., in Van Slyke v. Lettice, the parties intended to blot out the suit from its commencement before the justice to the appeal to the County Court. The fact that the submission has not been acted on, does not alter its legal effect upon the judgment and the appeal.

The order of the County Court is right, and should be affirmed.

Barnard, P. J.

(dissenting) :

This case does not come under any case cited by respondent.

The plaintiff obtained a judgment for over $100 before, a justice. The defendant appealed and gave no undertaking. This appeal was not regular, and was dismissed for that reason. The judgment before the justice remained in full force. The agreement to arbitrate was conditional upon its execution by the 1st of December, 1866. The arbitrators never met. Ho reference is made in the agreement to arbitrate to the judgment. I do not think it is paid. The plaintiff ought to have the right to enforce it.

The order should be reversed.

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

Order affirmed, with costs.

       Larkin v. Robbins, 2 Wend., 505.

       6 Hill, 610.

         See, also, Grosvenor v. Hunt, 11 How. Pr., 355; Miller v. Van Anken, 1 Wend., 516.

       2 Wend., supra.


text:
    JOSHUA HARRISON and another, Respondents, v. HENRY R. GLOVER and others, Appellants.

      Market-price — how determined.

    The market-price of goods is proved as well by evidence of what they could be bought for, as by actual sales.
    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.
    The parties made an agreement in writing, in which. it was specified that the plaintiffs should supply the defendants with certain woolen blankets, and that the defendants should sell them on commission. The action grew out of this clause of the agreement, viz.: “ It is hereby agreed that the blankets shall not be sold for less than those, made by Dobson & Schofield, of Philadelphia, at the proper time for selling them.” The defendants sold a large quantity of plaintiffs’ goods for a less price, as plaintiffs claimed, than Dobson <fc Schofield’s blankets were sold for. The referee gave the plaintiffs judgment for the difference between the price at which the goods were sold and the. price they would have brought at the rates at which Dobson & Schofield’s goods sold. From that judgment the defendants appeal.
    The defendants claimed that, prior to making the sale in dispute, they called on Dobson’s agent in Hew York, and that he offered to sell Dobson’s blankets at the price they obtained on the sale in question.

      Daniel T. Walden, for the appellants.

      Walter C. Anthony, for the respondents.
   Gilbert, J.:

We think the referee erred in his interpretation of the contract in this case.

The fair meaning of the language employed, is, that the market-price of Dobson’s & Schofield’s goods was to be the minimum price of the plaintiffs’. The market-price of goods is proved as well by evidence of what they could be bought for, as by actual sales. Market-prices are fixed every day in that way on all our exchanges. It would frustrate the chief object of the contract on both sides, to give it the construction put on it by the referee. That object was to sell the goods, but if the defendants were not permitted to compete with Dobson & Schofield, by offering the plaintiffs’ goods at as low a price as Dobson & Schofield were willing to sell their own, it is manifest that the latter would monopolize the trade. Suppose Dobson & Schofield offered to sell to a customer of the defendants goods at a price less than that at which previous sales had been made by the former, and the defendants were not at liberty to regard that as the price intended by the contract, it is manifest that they would lose the customer.

That certainly was not the intention of the parties. It is true the construction we have put upon the contract would authorize a competition, which, if continued for a sufficient length of time, might ruin both Dobson & Schofield and the plaintiffs. But this could not happen to the plaintiffs, unless the defendants were grossly derelict in their duty as factors. If they duly performed their duty to -the plaintiffs, as we must presume, they would stop making sales which would subject the plaintiffs to loss, until they had received instructions to make them, or how else to act. The relation of principal and factor is one of mutual confidence, and much o must necessarily be left by each to the judgment and good faith of the other.

The interpretation of contracts ought not to be affected by a desire to shield either party absolutely against possible consequences of fraud or any other wrong. On the contrary, the presumption ought to be that the parties contracted on the basis that each would act honestly toward the other, and, if they wish to do away with this presumption, they must make their stipulations express, and in unambiguous language to that effect.

This error of the referee would not have been sufficient to warrant a reversal of the judgment, if he had found the fact that the sales, of which the plaintiffs complain, were not made in good faith, at a price at which the goods of Dobson & Schofield had actually been offered. But he did not so find. On the contrary, he rests his decision solely upon the fact that such sales by the defendants were made at a price less than Dobson & Schofield had- actually sold their goods.

We are of opinion, therefore, that the fact found does not justify the conclusion of law on this point.

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

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

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


text:
    ISAAC S. SMITH, Executor, etc., Appellant, v. FREDERICK W. STARR, Respondent.

      Guarantee—when personal.

    The defendant guaranteed the payment of a certain bond and mortgage “ to Arthur Ohilds, the present owner and holder of said bond and mortgage, his executors and administrators;” held, that the guarantee was a personal one confined to Ohilds, his executors and administrators, and that the assignee of the bond and mortgage could not maintain an action thereon.
    Appeal from an order entered at the Circuit dismissing the complaint herein.
    February 1, 1872, Mary Ann Sutherland and her husband gave a bond and mortgage for $3,000 to John J. Drake, who subsequently assigned them to Arthur Childs. On the 7th of September, 1872, the defendant entered into the following agreement:
    In consideration of the sum of one dollar, to me in hand paid by Arthur Childs, the receipt whereof is hereby acknowledged, and of other valuable considerations, I, Frederick W. Starr, of the city of Brooklyn, do, for myself, my heirs, executors and administrators, guarantee the. payment of principal and interest of a certain bond and mortgage, made by Mary Ann Sutherland and Spencer Sutherland, her husband, dated February 1, 1872, to secure the sum of $3,000 and interest, which said mortgage was recorded in the Kings county register’s office, in liber 1052 of mortgages, page 154, February 6, 1872, to Arthur Childs, the present owner and holder of said bond and mortgage, his executors and administrators, according to the terms and conditions thereof, together with any costs, allowances and disbursements attending a foreclosure of the same.
    Subsequently Childs assigned the bond and mortgage, but not the guarantee, to the plaintiff’s testatrix. A deficiency having arisen upon the foreclosure of the bond and mortgage, this action was brought to recover upon the guarantee, the plaintiff claiming that it was collateral to the mortgage and passed with it.

      John H. Knaebel and Charles H. Smith, for the appellant.
    The assignment of the bond did, “ ex prqprio vigore,” carry the title in the guarantee, to the assignee. (Pattison v. Hull, 9 Cow., 747; Craig v. Parkis, 40 N. Y., 181; Merritt v. Bartholick, 36 id., 44; Dorsheimer v. Nichols, 1 Abb. Ct. App., 519; Parmalee v. Dann, 23 Barb., 461; Jackson v. Blodget, 5 Cow., 202; Jackson v. Willard, 4 Johns., 43 ; 9 Wend., 80.) The omission in the guarantee of the word “ assigns ” does not render the same nonassignable. (Averill v. Taylor, 8 N. Y., 44; Gould v. Ellery, 39 Barb., 163.)

      Johnston & Strauss, for the respondent.
   Gilbert, J.:

The answer does not admit that the guarantee was given as security for the payment of the bond. If it did, there would be no question that it passed to the plaintiff as an incident to the debt assigned to him. The bond being the principal obligation, a guarantee of the payment thereof, generally, would pass with an assignment of the bond, as a security collateral thereto'; and a formal assignment of the guarantee would not be necessary to vest the same in an assignee of the bond, But the answer sets up that the guarantee was given to indemnify Mr. Childs, the plaintiff’s assignor, personally. ISTo evidence having been given besides the guarantee itself, its legal effect can be determined only by an interpretation of the language thereof. The defendant thereby guarantees the payment of the bond to Arthur Childs, the present owner and holder of said bond,” etc. We think the legal import of this language is an engagement to Childs only. ' The defendant, being a mere surety, cannot be bound beyond the scope of his engagement. Thus, in Wright v. Russell, a bond conditioned for the honesty of one Baird, a clerk, was given by the defendant to one Wright, the employer of the clerk. Wright, subsequently to the giving of the bond, entered into partnership with one J. D. It was held that the defendant was no longer liable on the bond. The court said, <l the condition was confined to Wright only, and the breach assigned is the non-payment of the money to Wright and Delafield, which is not within the condition. So, in Barker v. Parker, it was held that a bond with a condition that a clerk should faithfully serve and account for money to the obligee and his executors, did not make the obligor liable for money received by the clerk in the service of the obligee’s executor. Lord Mansfield said: “ The bond in question is relative to the service with Pyott, the testator. It was given as an indemnity that the clerk should be faithful to him.” The principle of all the cases on this subject is, that a surety is not to be held beyond the precise terms of his contract. If the contract was entered into to assist a friend, it is to be construed strictly, as mere matter of legal right.

Having no means of ascertaining the actual intentions of the parties to the contract in this case besides the words they used, we can only give effect to those words according to their plain and natural import. So construed, the guarantee is that the bond should be paid to Childs, his executors and administrators. We cannot say that it was given for the purpose of facilitating a sale or other disposition of the bond, or that it was intended to be aught but an indemnity to Childs and his representatives against loss. Childs having put it out of his power to receive payment, the purpose of the guarantee has been accomplished, and the guarantor is discharged.

The judgment must be affirmed.

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

Judgment affirmed, with costs.

       Jackson v. Blodget, 5 Cow., 202; Craig v. Parkis, 40 N. Y., 181.

       McLaren v. Watson’s Exrs., 26 Wend., 425.

         3 Wils., 530.

       1 T. R., 287.

       See, also, Weston v. Barton, 4 Taunt., 673; Pemberton v. Oakes, 4 Buss., 154; Chapman v. Beckington, 3 Q. B., 703; Gates v. McKee, 3 Kern., 237; Ludlow v. Simond, 2 Cal. Cas., 1.


author: Gilbert, J.

text:
    ALEXANDER M. C. SMITH v. THE MANHATTAN INSURANCE COMPANY.

      Insolvent corporation—distribution of assets of—when creditor may be allowed to present claim.

    Where, at the time of the appointment of a receiver of an insolvent corporation, a suit is pending against it, the plaintiff therein may, at any time before the entry of a final decree excluding all creditors who have not presented their claims, be permitted to come in, prove his claim, and participate equitably in the distribution of the fund still in the hands of the receiver.

      Matter of Harmony Ins. Co. (9 Abb. [N. S.], 347) followed.
    But where in such case the receiver had no actual notice of the petitioner’s claim before making the second dividend, and has reserved no fund applicable specifically to the payment thereof, it is error to require him to pay to the petitioner his proportion of such dividend.
    Appeal from an order made at the Special Term, allowing the Milwaukee and St. Paul Railroad Company to make proof of its claim against the defendant.

      Thomas H. Hubbard, for the appellant.

      C. W. Bangs, for the respondent.
   Opinion by.

Gilbert, J.

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

Order modified, and as modified affirmed, with costs.


author: Barnard, P. J.

text:
    WILLIAM H. JENKS and another, Appellants, v. CATHARINE BROWN, Impleaded, Respondent.

      Mechanics' lien — cancellation of contract by owner — effect of, on rights of subconti'aator.

    The plaintiffs furnished certain materials used by one Phillips, in erecting a building upon land belonging to the defendant, Brown, and received an order upon her, which she accepted, to be paid out of the third payment to become due to the contractor, Phillips. Subsequently, and before the third payment became due, Phillips and defendant, Brown, canceled the contract. After- • ward plaintiffs, in ignorance of such cancellation, filed a mechanics’ lien under the act of 1863 (p. 947), for the enforcement of which this action was "brought. Upon the trial, the plaintiffs were nonsuited. Meld, that this was error; it should have been left to the jury to decide whether the contract was canceled in good faith, and, if not, how much was due upon it.

      Qucere, whether plaintiffs’ lien would be affected by such cancellation.
    Appeal from a judgment in favor of the defendant, entered upon an order dismissing the plaintiff’s complaint.

      John R. Kuhn, for the appellants.
    --, for the respondent.
   Opinion by

Barnard, P. J.

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

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


author: Tappen, J., and Barnard, P. J.

text:
    MARGARET FARRELL, Respondent, v. JAMES C. CORBETT, Appellant.

      Rescission of contract—restoration of what has been received.

    This action was brought by the plaintiff to restrain the defendant from enforcing a chattel mortgage which she had given to him to secure $850, the purchase-price of a lease, liquor store and the contents thereof, sold by the defendant to the plaintiff, and of which the latter had taken possession. The plaintiff claimed to rescind the contract and to have the mortgage declared void by reason of fraudulent representations of the defendant in respect to the business of the store and the rent of the premises. Held, that the plaintiff could not maintain the action, as she had failed to restore to the defendant the property received from him under the contract

    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      John Flanagan and James C. Anderson, for the appellant.
    ----—, for the respondent.

       Pullman v. Alley, 53 N. Y., 637; Cobb v. Hatfield, 46 id., 533 ; Sinclair v. Neill, 8 Sup. Ct. Rep. (1 Hun), 80.

   Opinions by

Tappen, J., and Barnard, P. J.

Barnard, P. J., dissented.

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

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


text:
    HELEN H. VAN KEUREN, Appellant, v. MARGARET CORKINS AND OTHERS, RESPONDENTS.

      Mortgage—payment of, by mortgagor' to mortgagee after assignment, without notice.

    Payments made by a mortgagor to a mortgagee, after the latter has assigned the mortgage and parted with all his interest therein without notice of such assignment, are valid.

    Under some circumstances the omission of a mortgagor, when paying off his bond and mortgage, to require a delivery up of the securities, may raise a presumption that the payment was not made in good faith. But no such presumption can arise where the assignee allows the mortgage to remain in the hands of the mortgagee, and permits him to receive payments of principal and interest thereon.

      Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court without a jury.
    Hulse, Little & Finn, for the appellant.

      E. A. Brewster, for the respondents.

         Reed v. Marble, 10 Paige, 413.

       Brown v. Blydenburgh, 7 N. Y., 140; Doubleday v. Kress, 50 id., 410.

   Opinion by

Gilbert, J.

Present— Gilbert and Tappen, JJ.

Judgment affirmed, with costs.


text:
    RICHARD H. BOWNE, Trustee, v. PHEBE J. UNDERHILL AND OTHERS.
    Will—“ children ” — constrruction of word.

    The testatrix, by her will, gave to her executor certain real and personal property in trust, among other things to apply the income thereof to the use of her niece, “Phebe J. Underhill, wife of Edmund Underhill, during the joint lives of the ' said Edmund Underhill and Phebe J., his wife; from and after the death of either of them, the said Edmund and Phebe J., then to apply the same to the use of the survivor of them, and the children of them the said Edmund and Phebe J. Underhill, during the lifetime of such survivor in equal proportions; upon the decease of such survivor, then upon trust to divide the said trust estate equally among all the children of the said Phebe J. Underhill, who may then be living and the lawful issue of any who may then be dead, per stirpes, and not per capita.'” Held, that the word “ children,” as used in the will, included grandchildren, and that upon the death of Edmund' Underhill, his grandchildren, whose parent was dead, were entitled to their parent’s share of the income during the life of Phebe J. Underhill.
    Controversy submitted without action under section 372 of the Code.

      Benj. D. Silliman, for the plaintiff.

      E. T. Schenck, for the defendant John F. Underhill.
   Opinion by

Barnard, P. J.

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

Judgment accordingly.


text:
    JEANNETTE H. HAMMOND, by her Guardian, and others, Appellants, v. WILLIAM M. DEAN.

      Costs of attorney—order directing payment of—lurn enforced.

    The plaintiff, in an action for breach of promise of marriage, being desirous of changing her attorney, an order was entered directing such change to be made, and providing that $200 costs of the former attorney be made a prior lien on any judgment recovered, and that the same should be paid out of the first money received thereunder. Subsequently the suit was settled, and $2,900 paid to the attorney. Upon the application of the first attorney, an order was made directing the plaintiff and the second attorney, to pay over $200 to him. Held that the order was proper, and should be affirmed.
    Appeal from an order directing the plaintiff and her attorneys to pay over certain moneys received in this action.

      Breen & Spellissy, for the appellants,
    ---, for the respondent.
   Opinion by

Barnard, P. J.

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

Order affirmed, with ten dollars costs.


text:
    JOSEPH H. HAVENS, Respondent, v. THE NATIONAL CITY BANK OF BROOKLYN, Impleaded, etc., Appellant.

      Code, § 294—National Bank—power of State court oner—bankruptcy.

    Where a judgment has been recovered against an assignee in bankruptcy, an order cannot be made, under section 294 of the Code, requiring a bank, a depository of United States funds, to pay over to the judgment creditor money belonging to the estate of the bankrupt, deposited by the assignee with it.
    Appeal from an order denying a motion to vacate an order made in supplementary proceedings, requiring the appellant to pay over certain money to the respondent’s attorney.

      W. H. Hollis, for the appellant.

      John H. Bergen and E. L. Sanderson, for the respondent.
   Opinion by

Barnard, P. J.

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

Order reversed, with ten dollars costs.


text:
    THEODORE MINER, Respondent, v. THOMAS GARDINER, Jr., Appellant.

      Inspection of boohs—when not allowed—Value of sm'mces in Iceeping boohs — haw proved.

    In an action brought to recover for services rendered as book-keeper, an inspection of the books of the defendant should not be ordered to enable the plaintiff to have them examined by an expert, so that he may testify from their appearance as to the value of the services rendered in keeping them. The proper way is to prove the services and the time occupied in performing them, and then prove their value.
    Appeal from an order denying a motion made by defendant for a reference, and from an order granting an inspection of books of the defendant.

      Roe & Macklin, for the appellant.

      Wm. Dudley Foulke, for the respondent.
   Opinion by

Barnard, P. J.

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

Order denying reference affirmed with costs; order granting inspection reversed, with costs.


text:
    LUTHER E. MANSFIELD, Respondent, v. CHARLES H. KERNER AND ANOTHER, APPELLANTS.

      Contract—specificaMons annexed to — when compliance with must he proved —Answer — allegations of—when insufficient as evidence ftrr plaintiff.

    This action was brought to recover for work performed in erecting an elevator, “ as per specifications annexed to the written contract.” The answer alleged that the elevator was to be constructed “ in accordance with certain drawings and specifications,” and then set forth certain of the requirements thereof. Upon the trial the plaintiff did not prove the contract and specifications, but read a portion of the answer, referring, in general terms, to the contract, and declared that this was the agreement which he accepted, and he was allowed to recover thereon. Held, that this was error; that he should have been compelled to prove, the contract and specifications, and compliance therewith.
    Appeal from a judgment in favor of the plaintiff, entered, upon the verdict of a jury.

      George H. Forster, for the appellants.

      Frank Reynolds, for the respondent.
   Opinion by

Barnard, P. J.

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

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


text:
    PETER BOOS, Respondent, v. THE WORLD MUTUAL LIFE INSURANCE COMPANY, Appellant.

      Evidence—when to he passed upon hy coun't, and when hy jury—Breach of warranty should, he pleaded.

    Whether there is any evidence in the case is a question for the court; whether there is sufficient evidence to justify a verdict is a question for the jury.
    In order to avoid a policy of insurance on the ground of a breach of warranty, such breach should be pleaded.
    Appeal from' a judgment in favor of plaintiff, entered on the verdict of a jury at the Kings county Circuit.
    This action was brought by plaintiff, as assignee of a policy of insurance, issued by the defendant upon the life of his (plaintiff ’s) father.
    The defense was that Valentine Boos (the father) had falsely answered certain questions. The General Term, after a review of the evidence, was of opinion that the case was a proper one to be submitted to the jury, and affirmed the judgment, with costs.

      Joshua M. Van Cott and Wm. P. Prentice, for the appellant.

      John H. Bergen, for the respondent.
   Opinion by

Gilbert, J.

Present — Gilbert and Tappen, JJ.

Judgment affirmed, with costs.


text:
    HENRY DAY, Respondent, v. CHRISTOPHER MOONEY AND OTHERS, APPELLANTS.

      Mortgage—merger of—Acceptance of deed—presumption as to.

    The merger of a mortgage, when the fee of the mortgaged premises is acquired by the mortgagee, does not take place when such is not the intention of the parties to the transaction out of which it is claimed to arise.

    An acceptance of a deed will not be presumed from its being-made and recorded by others, without the sanction of the grantee,

    Appeal from a judgment in favor of plaintiff, entered on the report of a referee, in an action brought for the foreclosure of a mortgage.
    ---, for the appellants.

      Daniel Lord, Jr., for the respondent.

       Clift v. White, 12 N. Y., 519; Morris v. Whitcher, 20 id., 41; Millspaugh v. McBride, 7 Paige, 509; Skeel v. Spraker, 8 id., 182.

       Chouteau v. Suydam, 21 N. Y., 182; Fonda v. Sage, 48 id., 174; Wilsey v. Dennis, 44 Barb., 355.

   Opinion by

Gilbert, J.

Present— Gilbert and Tappen, JJ.

Judgment affirmed, with costs.


text:
    THE AMERICAN SILK WORKS, Respondent, v. I. J. SALOMON, Appellant.
    Corporations—■ acquisition of propet'ty before incorporation completed—subscriptions may be in chattels.

    Corporations may acquire title to money paid upon subscriptions to capital stock before tire corporation has a legal existence, and such subscriptions may be in the form of property other than money.
    Appeal from a judgment in favor of the plaintiff herein, entered on the report of a referee. The action was brought for the alleged conversion by the defendant of certain steam gas-pipes, etc., the property of the plaintiff.

      Gardiner & Goodhart, for the appellant.

      Williams Brothers, for the respondent.
   Opinion by

Gilbert, J.

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

Barnard, P. J., dissented.

Judgment affirmed, with costs.


author: Tappen, J.

text:
    GEORGE W. PLATT, Appellant, v. WILLIAM A. PARKER and THEODORE F. PIER, Respondents.

      Bankruptcy—omission of name of creditor in debtor's schedule — effect of—fraud must be shown.

    The omission from the schedule of the debtor, of the name or claim of a creditor, does not invalidate the discharge of the debtor in bankruptcy, unless it be • shown to have been omitted fraudulently.
    Appeal from a judgment in favor of the defendants, entered on the report of a referee, dismissing the plaintiff’s complaint.

      Edward S. Clinch, for the appellant.

      Wm. A. Jenner, for the respondents.
   Opinion by

Tappen, J.

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

Judgment affirmed, with costs.


text:
    GRACE TATHAM, Appellant, v. THE COMMERCE INSURANCE COMPANY OF ALBANY, Respondent.

      Policy of insurance — when molded by sale of property.

    This action was-brought upon a policy of insurance, issued by the defendant, which contained a clause providing that “if the property be sold or transferred, or any change take place in title or possession, except in case of succession by reason of the death of the assured, whether by legal process or judicial decree or voluntary transfer or conveyance, * * * the policy shall be void.” After the issuing of the policy, the plaintiff conveyed the property insured thereby to Winn & Weaver, who held a mortgage thereon, by whom an agreement was executed, giving to the plaintiff possession of the property for one year, and also the option to pay $18,500 during said time, “as a consideration for the reconveyance. If payment not made, said property is to become fully vested” in Winn & Weaver. Held, that the transaction was a sale, and not a mortgage, and that the policy was avoided thereby.
    Appeal from a judgment in favor of the defendant.
    ---, for the appellant.
    ---, for the respondent.
   Opinion by

Barnard, P. J.

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

Judgment affirmed, with costs.


text:
    THEODORE B. GATES and another, Appellants, v. JOSHUA M. WHITCOMB and others, Respondents.
    When an owner of land agrees to sell it to another, and advances him. money with which to build upon the premises sold, and, after completion of the houses, the builder is to secure the purchase-price and the advances by mortgage, the relation of owner and contractor does not subsist as between the parties, under the lien act  In such cases the person who agrees to purchase, builds by permission of the owner, and the property is chargeable with the lien until the deed is actually delivered, without regard to the terms of the contract of purchase.
    Appeal from a judgment in favor of defendant dismissing plaintiff’s complaint. The action was brought to foreclose a mechanic’s lien.

      Theodore B. Gates, appellant, in person.

      William W. Goodrich, for the respondents.

      Hart v. Wheeler, 1 N. Y. S. C. (T. & C.), 403.

   Opinion by

Barnard, P. J.

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

Judgment reversed and a new trial granted at Special Term, costs to abide event.


text:
    GEORGE F. PERKINS and another, Respondents, v. ALFREDERICK S. HATCH, Appellant.
    Appeal from a judgment in favor of the plaintiffs, entered on the report of a referee.
    The plaintiffs furnished to a corporation known as the “ Sunday School Workmen’s Association,” paper on which a newspaper was printed, known as the “ Sunday School Workman,” and they recovered judgment against the association therefor, to the amount of $1,443, on the 16th February, 1872.
    After the return of execution against the judgment debtor unsatisfied, they brought this action against the defendant as a stockholder, and alleged that the defendant was liable under section 10 of the law of 1848, providing for the formation of corporations, etc., in consequence of the failure of the corporation to procure the amount of its capital stock to be subscribed and paid in.
    The defendant contended that the association was not legally incorporated, alleging the proceedings for that purpose to have been defective; and further, that the indebtedness of the association was not established, and that he, the defendant, was not a stockholder. The referee found for the plaintiffs.
    The capital stock was not paid up, and nearly fifty per cent thereof remained unpaid.
    The court at General Term was of opinion that the' certificate of incorporation to which the defendant was a party, could not be questioned by him in respect to any irregularities, if there were any such;  that the corporation was liable in assumpsit for goods received and used in its business to the same extent as a natural person;  that the defendant was a stockholder ; that his subscription became obligatory; that his payments on account thereof, made him a member with, corresponding liabilities;  that the referee properly refused to charge against the plaintiffs, as a payment, 'a note' signed and issued by two officers of the company for $600 on account of plaintiffs’ claim, such note being unpaid and protested, and plaintiffs expressly averring the facts in their complaint, and the proof supporting such averment.

      L. E. Chittenden, for the appellant.

      Thayer & Shoudy, for the respondents.

       Hyatt v. Esmond, 37 Barb., 606, and cases cited; B. and A. R. R. v. Cary, 26 N. Y., 78.

       Danforth v. Schoharie T. P. Co., 12 Johns., 227; Hooker v. Eagle Bank of Rochester, 30 N. Y., 86.

         Stanton v. Wilson, 2 Hill, 153; Spear v. Crawford, 14 Wend., 20; also, 1 N. Y., 336: 16 id., 451; 22 id., 551.

   Opinion by

Tappen, J.

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

Judgment affirmed, with costs.


text:
    CHRISTIAN G. VOLTZ, Respondent, v. ABEL T. BLACKMAR, Appellant.
    Appeal from a judgment in favor of the plaintiff, entered at Dutchess county Circuit, on the decision of the court without a jury.
    The action was brought for the conversion of a certificate of deposit for $4,000. The plaintiff had been clerk with power of attorney to draw checks for the defendant. The relation being about to terminate, plaintiff drew a check on defendant’s bank account for $4,000, and thereon obtained the certificate in question) $4,000 being the amount due him, according to plaintiff’s calculation, from defendant. The defendant had plaintiff arrested, and the certificate was taken from him by the police and delivered to defendant; the defendant having previously received from plaintiff the defendant’s note for $3,000 canceled, the $3,000 being included in the $4,000 certificate, which note defendant retained.
    The judge trying the cause found that the plaintiff, honestly believing the defendant indebted to him in the sum. of $4,000, by mistake and not otherwise, drew the check and applied the same to such indebtedness, and notified defendant at once thereof, and defendant authorized him to draw a check for the $3,000 note, but for no more until a settlement was had. The defendant was really indebted to plaintiff $156 less than the $4,000. The court at General Term was of opinion that a cause of action for conversion was made out, and that defendant having given a cause of action to plaintiff by a forcible seizure and conversion of the property, no lien for the $156 interest in the certificate, accrued to defendant from his tortious possession ; and that as to damages, the amount due upon the certificate at the time of conversion was the measure.

      Lewis & Gurney, for the appellant.

      Nichols & Allen, for the respondent.

       Ingalls v. Lord, 1 Cow., 240; 1 Smith's Leading Cases, 605.

   Opinion by

Tappen, J.

Present — Gilbert and Tappen, JJ.

Judgment affirmed, with costs.


text:
    CHRISTIAN G. VOLTZ, Respondent, v. ABEL T. BLACKMAR, Appellant.
    Appeal from a judgment in favor of the plaintiff, entered at the Dutchess county Circuit, and from an order denying a motion for a new trial.
    The plaintiff on a trial at the Dutchess Circuit in an action for false imprisonment, assault and battery, had a verdict for $4,250, and the court made an extra allowance of five per cent thereon in addition to the costs. The defendant seeks a new trial for alleged errors at the trial, and for excessive damages. The General Term found no errors that could be held at all sufficient to. disturb the verdict, nor, under the circumstances óf the case, did it consider the damages excessive. It further held, that the extra allowance was in accordance with the established practice and usage in the courts of the district.

      Lewis & Gurney, for the appellant.

      Nichols & Allen, for the respondent.
   Opinion by

Tappen, J.

Present— Gilbert and Tappen, JJ.

Judgment and order denying new trial affirmed, with costs.


text:
    WYNDHAM THOMAS, Appellant, v. ALVIN HIGGINS, Respondent.
    Appeal from a judgment in favor of defendant, entered on a referee’s report, dismissing plaintiff’s complaint.
    The action was brought to recover for work, labor and materials, furnished under an oral contract to defendant, and the chief defense was that the work was not done in a workmanlike manner, and that the plaintiff had not performed his contract. The court at General Term, without any discussion of the reasons therefor, was of opinion that certain evidence as to the value of the work' and the direction of the defendant as to the same, offered by the plaintiff, had been improperly excluded by the referee, and reversed the judgment.

      A. P. Hinman, for the appellant.

      S. F. & F. H. Cowdrey, for the respondent.
   Opinion by

Tappen, J.

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

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


text:
    In the Matter of the Final Settlement of the Accounts of ROBERT ABERCROMBIE, Executor, etc., Appellant.
    Appeal from a decree of the surrogate of the county of Westchester.
    The auditor, to whom it was referred to take and state the accounts of the appellant, having filed a report which the surrogate regarded as incomplete, he directed him to make a further report, setting forth certain facts to which his attention was called, as they appeared in the evidence already taken by him. The General Term held, that there was no error m requiring the auditor to make a further report, and affirmed the decree.

      Wm. F. Purdy, for the appellant.

      L. T. Yale, for the respondent.
   Opinion by

Gilbert, J.

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

Decree affirmed, with costs.


text:
    THOMAS W. LENTON, an Infant, by JOHN LENTON, his Guardian, Respondent, v. C. GODFREY GUNTHER, Appellant.
    Appeal from a judgment in favor of the plaintiff, and from an order denying a motion for new trial.
    The action was brought to recover damages caused by the alleged negligent act of the defendant’s servant in throwing a jet of steam suddenly upon the plaintiff’s horse and causing him to run away. The General Term was of opinion that the evidence was sufficient to sustain the verdict, and affirmed the judgment and order.

      Winfield & Leeds, for the appellant.

      D. P. Barnard, for the respondent.
   Opinion by

Gilbert, J.

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

Judgment and order denying a new trial affirmed, with costs.


text:
    BARNABAS C. TOMPKINS, Appellant, v. HARRISON BARNES, Respondent.
    Appeal from a judgment in favor of the defendant, entered upon an order dismissing the complaint herein. The General Term held that there was evidence in the case which should have been submitted to the jury, and that it was error to grant a non-suit.

      Robert S. Hart, for the appellant.

      Close & Robertson, for the respondent.
   Opinion by

Gilbert, J.

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

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


text:
    WILLIAM DONALDSON, Respondent, v. JAMES H. TRUESDELL, Appellant.
    Appeal from a judgment of the Westchester County Court affirming a judgment of a justice of the peace in favor of the plaintiff.
    The action was brought to recover on a check given by defendant, and claimed by him to he an accommodation cheek, and for which defendant claimed that the plaintiff, the indorsee, had not given any value. The General Term was of opinion that there was proof from which the justice was justified in finding that value had been given for the check, and affirmed the judgment.

      J. S. Millard, for the appellant.

      Wm. F. Purdy, for the respondent.
   Opinion by

Barnard, P. J.

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

Judgment affirmed, with costs.


text:
    WILLIAM REYNOLDS, Respondent, v. JOHN GILCHREST and another, Appellants.
    The appeal papers in the case contain a notice of appeal from an order of the county judge of Westchester county, made in proceedings supplementary to execution founded on a judgment entered in this action, said order refusing to dismiss such proceedings, and sustaining an attachment against the defendant Gilchrest, for an alleged contempt in said proceedings.
    The General Term found in the appeal papers no such order, and dismissed the appeal, without costs.

      Wm. F. Purdy, for the appellant, Gilchrest.

      J. S. Millard, for the respondent.
   Opinion by

Barnard, P. J.

Present — Barnard, P. J;, Gilbert and Tappen, JJ.

Appeal dismissed, without costs.


text:
    JOHN GREEN, Appellant, v. ELISHA KING, Respondent.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.
    The only question presented by this appeal was, whether or not the evidence in the case was sufficient to sustain the findings of the referee. The General Term held that it was, and affirmed the judgment.

      James C. Anderson, for the appellant.

      E. A. Carpenter, for the respondent.
   Opinion by

Tappen, J.

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

Judgment affirmed, with costs.


text:
    THOMAS E. SMITH, Respondent, v. THE BOARD OF SUPERVISORS OF WESTCHESTER COUNTY, Appellant.
    Appeal from an order made at the Special Term, referring this cause to a referee to hear and determine. The General Term reversed the order on the ground that the action was not referable.

      Close & Robertson, for the appellant.
    --, for the respondent.
   Opinion by

Gilbert, J.

Present — Barnard, P. J., Gilbert and Tappen, JJ;

Order reversed, with ten dollars costs.