author: Follett, J.

text:
    National Mahaiwe Bank, App’lt, v. Elizabeth T. Hand, as Executrix, etc., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    Damages—Covenant to insure. »
    The measure of damages fpr the breach, by a lessee of the covenant to keep the devised premises insured, is the sum which it would cost the lessor to have procured a policy of insurance for the stipulated amount.
    Appeal from a judgment, dismissing the complaint on the merits.

      Jared F. Harrison, for app’lt; George 0. Holt, for resp’t.
   Follett, J.

This action was brought to recover damages for the breach of a covenant to insure. There is no dispute about the facts. The sole question involved is the amount of damages, if any, that the plaintiff is entitled to recover. The plaintiff is the owner of the Berkshire Paper Mill, which, March 16, 1889, it leased to Allen F. Hand, the defendant’s testator, for one year from May 1, 1889, for the rent of $1,000 and all taxes assessed on the premises during the year. The lease contained this covenant:

“The said Hand is to procure at once, and keep in force, insur.anee 6n said property for the benefit of said bank, in the sum of ten thousand dollars, in such companies as said bank shall approve.”

The lessee entered into possession of the premises, and occupied them until August 4, 1889, when the mill was destroyed by fire. The lessee failed to insure the mill against loss or damage by fire, ■which is conceded to have been worth $10,000 when destroyed. In the pleadings the fire is alleged to have occurred August 4th, but in the case it is stated to have happened August 14, 1889. On the first trial the court directed a verdict for the plaintiff for .$10,000, with interest from the date of the fire, and a judgment was entered, which was reversed by this court on the ground that the value of the property, not exceeding the amount of the policy, was not the measure of the plaintiff’s damages, but that the cost •of procuring a policy for $10,000 was the true measure of damages. 80 Hun, 584; 62 St. Rep. 384. There being no evidence on the first trial of the cost of such a policy, the judgment, instead of being modified, was reversed. On the second trial (the one under review), it was shown that a policy for $10,000 would have ■cost $600. At the close of the case the court was asked to direct a verdict in favor of the plaintiff for $10,000, with interest thereon from the date of the fire, which was refused, and the plaintiff ex-cepted. The court was also asked to direct a verdict for the plaintiff for $600, the premium on a policy for $10,000 for one year, which was refused on the ground that the plaintiff, not having paid that sum, could not recover, to which ruling the plaintiff excepted. Thereupon, upon the defendant’s motion, the complaint was dismissed on the merits, and the plaintiff excepted.

The authorities do not agree as to the true measure of damages for the breach of a covenant to insure. Dodd v. Jones, 137 Mass. 322, did not arise out of a breach of an executory covenant, but from the breach of a contract of sale of an insurance policy. In that •case the defendant sold a house to the plaintiff, which was covered by a policy of insurance having some time to run, which the defendant agreed to assign to the plaintiff, but afterwards refused to make the transfer. During the life of the policy the house was damaged by fire, and in an action brought to recover damages for the breach of this contract, it was held that the plaintiff was not entitled to recover the damages caused by thefire, but was entitled to recover the value of the property purchased and paid for by the plaintiff, —that is, the policy,—which the defendant had refused to assign. That case is not very closely allied to the one at bar. In Douglass v. Murphy, 16 U. C. Q. B. 113, it was held that the measure of damages for the breach of a contract by a tenant to insure was the loss sustained by the landlord, not exceeding the amount of the policy which the tenant covenanted to obtain. In Gray v. Murray, 3 Johns. Ch. 167, the defendant, as the agent of Gray, procured a policy on his life for £3,000 for ten years, and paid the premium for the first year. Subsequently the defendant ordered the policy canceled, and took out a new one for £450 on the life of Gray, who died within the year. In an action brought by Gray’s executors it was held that the defendant was liable for the amount insured by the original policy, after deducting the-premium. In Perkins v. Insurance Co., 4 Cow. 645, an agent neglected his duty to insure the property of his principal, which was destroyed,' and it was held that the agent was liable for the loss, n'ot exceeding the amount for which he should have insured. In Soule v. Bank, 45 Barb. 111; 30 How. Prac. 105, the defendant, for a valuable consideration, agreed to procure, and keep in force during the life of a third person, an insurance on the life of Mott for $55,000, which was for the benefit of the plaintiff. The defendant obtained a policy, and paid the premium for, one year,, but neglected to pay the subsequent premiums. Mott died within, the time during which the defendant agreed to keep the policy alive, and in an action to recover damages for the breach of the agreement it was held :

“ The bank, under these facts, must be considered as insurer, and liable to the same'extent as the insurance company would have been if the policies had been continued by payment of the premium fat the succeeding year.”

In Ainsworth v. Backus, 5 Hun, 414, the plaintiff obtained a policy on the life of her husband and assigned 60 per cent, thereof to the defendant, who agreed to keep the policy alive for the benefit of the plaintiff, but failed to perform his engagement, and the policy was forfeited. In an action brought for damages by the wife during the lifetime of her husband, it was held that the refusal to allow the plaintiff to show that the policy was worth $250 was an error, for which a new trial was granted. In Ela v. French, 11 N. H. 356, the plaintiff consigned books to the defendant for sale on commission, who agreed to cause thém to be insured. He neglected to procure ab insurance, and the books, were destroyed while in his possession, and it was held that, for the breach of this promise, the plaintiff was entitled to recover the-value of the books lost. In Miner v. Taggert, 3 Bin. 205, and in French v. Reed, 6 id. 308, it was held that an agent of a principal who neglects his duty to insure the property of this principal, which is lost, is liable for its value, not exceeding the amount for which it should have been insured. In Morris v. Summerl, 2 Wash. C. C. 203; Fed. Cas. No. 9,837, it was held that a merchant who is directed to insure the goods of his correspondent,, and neglects to do so, is liable in case of loss as an insurer. This judgment was affirmed by the supreme court of the United States. The same r.ule was held in De Taslet v. Crousellat, 1 Wash. C. C. 504; Fed. Cas. No. 3,827; Id., 2 Wash. C. C. 132; Fed. Cas. No. 3,828. In Hawkins v. Coulthurst, 5 Best & S. 343, the defendant assigned a policy of insurance on his life for £1,000 to trustees for his creditors, and covenanted that he would do nothing by which the policy should be forfeited. He broke the covenant, and the measure of damages was held to be the value of the policy at the time of the breach. In Exparte Bateman, in re Routledge, 8 De Grex, M. & G. 263, the owner of a sawmill received timber to be-converted into lumber, and agreed to keep it insured from damage by fire, and to pay the value of the timber in case it should be burned. In that case it should be observed that there was a. promise to pay for the timber in case it was destroyed. It was held that the measure of damages was the value of the timber burned. In Smith v. Price, 2 Fost. & F. 748, the defendants, who were commission agents, undertook to effect an insurance on the plaintiff’s goods, but neglected to perform their agreement, and, the goods being lost, it was held that they were liable for their value. In Bid. Ins. §§ 1400,1401, and in May, Ins. (3d ed.) § 399 B, many cases are cited, and the result seems to be that the damages recoverable for the breach of an agreement to insure property, which is destroyed, is the value of the property, not exceeding the amount for which it should have been insured. In 1 Arn. Ins. (6th ed.) 185, the rule is laid down that, in case an agent neglects to insure the property of his principal, and it is lost, he is liable to the same extent that the underwriter would have been had the insurance been effected. See, also, 2 Pars. Ins. 430.

But, whatever the rule may be in other jurisdictions, we are bound by the judgment of this court on the former appeal, where it was held that the measure of damages was the sum which it would cost the plaintiff to have procured a policy for the stipulated amount; and under that decision the trial court erred in not directing a verdict for the cost of such a policy.

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

Van Brunt, P. J., and O’Brien, J.—We think the original decision right, and concur in result.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    Frank M. Todd, as Executor, etc., App’lt and Resp’t, v. Squire V. Vaughn, App’lt and Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    1. Trust—What constitutes.
    The delivery of money by a decedent a few days before his death to a person to be applied to certain purposes, constitutes such person a trustee, and relieves him from any obligation to account to the executor for the amount disbursed as directed by the decedent.
    3. Same—Money had and received.
    In such case, the executor may recover, in an action for money had and received, the unexpended portion of the fund so delivered to the trustee by decedent.
    3. Witness—Section 829.
    Where, in an action by an executor, the plaintiff testifies to certain statements of the defendant to him as to defendant’s personal conversation with the decedent, the defendant may, on cross-examination, bring out the balance of such conversation.
    Appeal by plaintiff from so much of the judgment, as adjudges that he is not entitled to recover the entire amount of the claim in the second count of his complaint, and by defendant from so much of the judgment as adjudges that plaintiff is entitled to re-coyer a portion thereof, with costs.

      R. L. Armstrong, for pl’ff; J. 0. Leggett, for def’t.
   Lewis, J.

This judgment in this action was entered upon the report of a referee. There were two counts in the plaintiff’s complaint. Judgment was demanded in the first count for $400. The referee found for the plaintiff upon the first count, and neither party has appealed from that part of the judgment. Plaintiff, in the second count of his complaint, asked to recover of the defendant the sum of $417.47, for money had and received by the defendant to the use of the testator. The referee found that the plaintiff was entitled to recover, under the second count, the sum of $63.47, with interest, and that he was not entitled to recover the balance of said sum of $417.47; and both parties appealed from the decision of the referee under the second count.

The evidence tended to show that during his last sickness, and two or three days before his death, the testator delivered to the defendant $417.47, and requested him to use the same for the following purposes: First, to pay the funeral expenses of the deceased; and to deliver to Ezra Lewis, a nephew of the deceased, the sum of $200 ; to deliver to William Lewis $100, with which William was to pay the funeral expenses of his father, Aaron Lewis, deceased, who was a brother of the testator, and also erect a tombstone at the grave of said Aaron Lewis. The defendant received the money, and promised to appropriate the same as directed by the testator. After testator’s death the defendant paid, as directed, $200 to Ezra Lewis, $100 to William Lewis, and paid the funeral expenses of ihe deceased, which amounted to the sum of $54, which left $63.47 of said money in his hands unexpended. After the money had been so disbursed by the defendant, the plaintiff, as the executor of the will of the testator, demanded of the defendant the $417.47.

It is the contention of the plaintiff’s counsel that, notwithstanding the circumstances under which the defendant received the $417.47, his authority to disburse the money as directed was revoked by the death of the testator. The referee, we think, correctly held that the defendant became a trustee of the fund, and, in paying it out, acted in discharge of a trust which he had assumed at the request of the deceased, and that he was under no legal obligation to account to the plaintiff for that portion of the fund which he had disbursed.

It is the contention of the defendant that he is not liable to the plaintiff, in this form of action, for the unexpended portion of the money which he concedes to be in his hands. He insists that, if the plaintiff is to recover the $63.47, it should be in an action in equity, for an accounting; that in that form of action he would be permitted to recover his commissions and expenses as trustee. It was fairly established by the evidence that, when the plaintiff demanded the money of the defendant, the defendant conceded that there was a balance in his hands of $63.47, which he was willing to pay to the plaintiff, and that he did not at the time claim to be entitled to any allowance for commissions as trustee. Upon these facts, we see no reason why the defendant was not liable to the plaintiff in an action for money had and received.

We have examined the exceptions of the respective parties to the rulings of the referee:

William Lewis was called as a witness by the defendant. He testified that he was present at the conversation between the deceased and the defendant concerning the $417.47. When asked to relate it, the plaintiff objected that the witness was incompetent, under section 829, Code Civ. Proc., to testify to the conversation, upon the ground that he was personally interested in the event of the action. It appeared, as stated, that the sum of $100 was to be delivered to him, to be used to pay his father’s funeral expenses, and to pay for a tombstone at his father’s grave. The entire sum was to be expended by him for the purposes named. He had no right to retain any portion of it to his own use. He was not, so far as appeared, under any legal obligations to pay his father’s funeral expenses, or to erect the tombstone, at his own expense. Whether he was a competent witness to testify as to so much of the conversation between the deceased and the defendant as related to the $400 claim is not before us for our decision ; for, as stated, both parties acquiesced in the referee’s decision concerning that sum. The witness does not seem to have had any personal interest in the second cause of action, and there was no reason for excluding his testimony as to that part of the conversation which related to the $417.47.

The plaintiff was called as a witness, and, to establish his second cause of action, testified that he called upon the defendant, and demanded that he account for the money ; that the defendant admitted to him that the testator delivered to him the $417.47. The defendant was permitted, on the cross-examination of the plaintiff, to call out the balance of the conversation, and show that the defendant, in the same conversation, related the circumstances of the delivery of the money to him by the testator, and what he was directed to do with the money. The plaintiff had related so much of the conversation as tended to charge the defendant with the receipt of the money, and establish his liability to account therefor to the plaintiff, as the representative of the estate. The effect of the balance of the conversation was to destroy or modify the use which plaintiff sought to t$iake of the admission. Upon the plainest principles of justice and equity, the defendant was entitled to the balance of the conversation, with a view of showing what the real transaction was, for the purpose of showing that it was not what it appeared to be from the portion of the conversation which the plaintiff had related. Bearss v. Copley, 10 N. Y. 93; Nay v. Curley, 113 N. Y. 575; 23 St. Rep. 496.

The defendant was, we think, a trustee of the $417.47. This sum was delivered to him by the deceased for the purposes mentioned. The defendant deposited it, as the evidence shows, in a bank, to his own credit, during the lifetime of the testator. The deceased parted with its possession. The circumstances amounted to a declaration of trust. Martin v. Funk, 75 N. Y. 134; Young v. Young, 80 N. Y. 422; Von Hesse v. MacKaye, 136 N. Y. 114; 49 St. Rep. 76. No writing was necessary to create the trust. In re Carpenter, 131 N. Y. 86; 42 St. Rep. 627.

We fail to find any reason for disturbing the findings or conclusions of the referee.

The judgment should be affirmed, but without costs of this ■appeal to either party.

Bradley and Ward, JJ., concur; Dwight, P. J., not voting.


author: Bradley, J.

text:
    Lizzie Briel, Resp’t, v. City of Buffalo, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    Municipal corporation—Streets—Obstruction—Notice.
    A city is chargeable with notice of a pile of earth which had remained three or four days and nights continuously in a portion of a public street much used for vehicles.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial on the minutes.

      Frank 0. Laughlin, for app’lt; Marcy & Jackson and Wallace lhayer, for resp’t.
   Bradley, J.

After daylight had disappeared in the evening of June 26, 1890, the carriage in which the plaintiff was riding southerly on Niagara street, in the city of Buffalo, was overturned, .and she was injured. The accident was caused by a pile of earth which had been deposited in the street, by the procurement of the owner of the adjacent premises, for the purpose of having it taken onto his lot, upon which some of the earth drawn there bad been conveyed by wheelbarrows. The recovery on the former trial was not supported, because it did not then appear that the earth drawn and deposited at that place in the street on any day prior to the evening of the injury remained in the street any night before that in question, and therefore no negligence was imputable to the •defendant upon the evidence. Breil v. City of Buffalo, 144 N. Y. 163; 62 St. Rep. 863. Upon the trial now the subject of review, further evidence was given tending to prove that the pile of edi’th had remained there in the street three or four days and nights, continuously, up to the time of the accident. The place in question is in a populous portion of the city, and Niagara street, on either side of the street-railway tracks, is much used for vehicles. And the length of time which the jury were, by the evidence, permitted to find this pile of earth had remained there, was such as to enable them also to find that the defendant was chargeable with notice of the obstruction in in the‘street, and therefore with negligence in permitting it to so remain there up to the time of the occurrence in question. Kunz v. City of Troy, 104 N. Y. 344; 5 St. Rep. 642. The conclusion was also warranted by the evidence that the plaintiff was free from the imputation of contributory negligence.

The questions arising upon the conflict in the evidence, and all other questions of fact, were fairly submitted to the jury, and their verdict is supported by the evidence. There was no error in the rulings at the trial to the prejudice of the defendant. The judgment and order should be affirmed.


author: Rapallo, J.

text:
    The Wiles Laundering Company (Limited), Resp’t, v. Herman Hablo et al., App’lts.

      (Court of Appeals,

      Filed April 19, 1887.)

    1. Lien—Laundry-man.
    Plaintiff agreed to do the laundry work on all collars and cuffs which defendant should deliver to him, and render a bill each month for all goods laundered and returned the preceding month, receiving cash for such amount due. Held, that plaintiff had no lien upon the goods in his possession for the balance due him.
    2. Same.
    Where a particular future time of payment is fixed, which may be subsequent to the time when the owner is entitled to a return of the article upon which the work is done, there can be no lien.
    3. Same.
    If the plaintiff had acquired any lien upon the goods laundered, the lien would have attached to any goods which he had in his possession at the close of the dealings to the extent of the whole balance due, as it was all done under a single contract.

      Blumenstiel & Hirsch, for app’lt, H. Davenport, for resp’t.

       Reversing 40 Hun, 636, mem.

   Rapallo, J.

No controverted question of fact arose upon the trial of this action. Only one witness was examined on the part of the plaintiff, and no testimony was introduced on the part of the defense. The question presented was purely one of law. The action was brought against the sheriff and the defendant Hablo for having, under an execution in favor of Hablo against one Hoexter, taken from the possession of the plaintiff a quantity of collars and cuffs which had been delivered to the plaintiff by Hoexter for the purpose of being laundered, and upon which the plaintiff claimed to have a lien to the amount of $1,747.72, being the general balance due the plaintiff for laundering the collars and cuffs so taken from it by the sheriff, and also for laundering other collars and cuffs which had been received by it from Hoexter, and returned to him before the levy in question. The only question at issue is whether the plaintiff had the lien which it claimed.

The uncontroverted facts were as follows. Hoexter was a manufacturer of collars and cuffs, and the plaintiff carried on the business of laundering for manufacturers. In June, 1884, Hoexter, through his representive, Mr. Kupfer, stated to the agent of the plaintiff that he was about manufacturing a superior line of goods, on which he desired to have the laundry work of the plaintiff, and asked the plaintiff’s agent whether the plaintiff could take the job, and the agent replied that the plaintiff could. An agreement was thereupon entered into verbally between them that the plaintiff should do the laundry work on all collars and cuffs Hoexter should deliver to the plaintiff, at the price of 16|- cents per dozen, payable in cash as follows: That on the first of each month the plaintiff should render a bill for all goods laundered and returned to Hoexter during-the preceding month, and should receive payment in cash;, that cash was not to be paid at the time the goods were actually delivered to Hoexter, but cash on the first of each month for goods returned the previous month; that there was no fixed period during which the goods were to be delivered to be laundered, but only until notice by either party; that the plaintiff might at any time refuse to do any more goods, and Hoexter might refuse to deliver any fresh goods if he chose; and, whenever Hoexter should desire a general settlement and clearing out of the goods, he should shut down for ten days, and not send any more work, and give the plaintiff a chance to get everything out of the laundry. It usually took seven or eight days to complete the process of laundering the goods. Under this agreement Hoexter began sending goods to the plaintiff’s laundry about the 18th of June, 1884, and the business continued until the 6th of April, 1885, when it was discontinued on account of the failure of Hoexter.

The work done by the plaintiff during the continuance of the contract amounted to between $6,000 and $7,000. In the course of the business, goods were generally delivered at the laundry, and laundered goods returned every day. The stipulated monthly payments were at first made by sight drafts drawn by Kupfer on Hoexter. This continued until January, 1885, when a sight draft was given for the December account. After January the defendant received ten-day drafts for the work of the preceding month down to the close. On the 3d of April, 1885, the plaintiff received for the March account a ten-day draft drawn - by Kupfer on Hoexter for the sum of $1,132.41. Hoexter refused fco accept this draft, and it was returned protested, and was never paid, and on the the 6th of April, 1885, there was a balance unpaid to the plaintiff for work, including this protested draft of $1,747.72, and the plaintiff had on hand between 2,400 and 2,500 dozen cuffs and collars of Hoexter, which were taken by the sheriff on the execution against Hoexter on the 25th of April 1885, against the protest of the plaintiff’s agent, who claimed a lien thereon for the above-mentioned balance of $1,747.72 due plaintiff. It was admitted on the trial that the value of the goods taken was equal, at least, to the plaintiff’s claim of $1,747.72, and it was also admitted by thé plaintiff’s counsel that, when the defendant’s took the goods, they tendered the amount due for the work done upon the particular goods which are the subject of this action.

At the close of the testimony the defendants’ counsel moved for a nonsuit, on the ground that it appeared that there was no lien on the goods, and also on the ground that there was no lien upon the goods taken for work done on other goods which had already been delivered. The court denied the motion, and, no evidence being offered on the part of the defense, the plaintiff’s counsel asked the court to direct the jury to render a verdict for the plaintiff for the full amount. The court stated that it had great doubt as to the existence of any lien at all, but that the case was important enough to go to the general term, and accordingly directed a verdict. To these rulings exceptions were duly taken. Judgment was entered on the verdict, and on appeal to the general term the judgment was affirmed.

If, under the agreement between the plaintiff and Hoexter, the plaintiff acquired any lien upon the goods laundered, we think that this hen attached to any goods which the plaintiff had in its possession at the close of the dealings, and to the extent of the whole balance then due to the plaintiff for work done, as well upon the particular goods remaining in the plaintiff’s possession as upon those which it had previously returned to Hoexter. All the work was done under a single contract, and the lien attached to all goods delivered to the plaintiff under that contract. By returning a portion of those goods to Hoexter, the plaintiff waived only its lien upon the goods so returned, retaining it for its full amount upon the residue which remained in its possession. This consequence results from the entirety of the contract under which the goods were delivered to the plaintiff to be laundered. If each lot of goods had been delivered to the plaintiff under a separate contract, it would have acquired only a lien upon the particular lot of goods so delivered, and only for the work done on that particular lot of goods ; and, when that lot was returned to the manufacturer, the plaintiff, by parting with possession, would have destroyed its lien on that lot of goods, and could not transfer it to any other lot received under a separate contract. But, where property is delivered for the purpose of having work done thereon which adds to its value, it makes no difference that the deliveries take place at different times, provided they are all made under a single contract. The lien attaches to all the property, in the same manner as if it had all been delivered at one time ; and, if part of it is voluntarily returned without payment for the work, the only consequence is that the person doing the work has abandoned a part of his security for the total amount due him, and retained his lien therefor only upon the property which remains in his possession. This is the doctrine recognized in Morgan v. Congdon (4 N. Y., 552), where logs were delivered at the defendant’s saw mill on different days, upon an agreement that defendant would saw into boards all the logs delivered. The defendant sawed part of them, and delivered the boards without being paid for the sawing, and it was held that he had a lien upon the logs undelivered for the sawing of the others, provided all the logs were delivered to the defendant under a single contract. To the same effect are the cases of Blake v. Nicholson, 3 Maule & S., 168, and Chase v. Westmore, 5 id., 180, and other cases. In the case last cited, meal was delivered at a mill at various times to be ground, under a single contract to grind all the meal furnished at a fixed price, no time or mode of payment being agreed upon; and it was held that, after delivery of a part of the meal ground, the grinder could retain the residue for the whole ‘balance due him.

But all these cases are subject to the condition that there is nothing in the contract for doing the work inconsistent with the right of hen; and that where a particular future time of payment is fixed, which may be subsequent to the time when the owner is entitled to a return of the article upon which the work is done, there can be no lien ; and that, where the parties contract for a particular time or mode of payment, the workman would have no right to set up a right to possession inconsistent with the terms of his contract; and in such a case there is no lien. 5 Maulé and S., 186, 187. In the present case the legal effect of the contract was that the collars and cuffs should be returned to Hoexter as fast as laundered. On this construction the parties acted throughout their dealings. Laundered goods were returned, as a general rule every day during each month. The plaintiff had no right to demand pay for each lot delivered at the time of delivery. The only witness to the contract testifies expressly that such was not the agreement; but, on the contrary, that it was that on the first of each month Hoexter should pay for the goods which had been laundered and returned during the preceding month. It is clear that the return of the goods to Hoexter was to precede the right to demand payment for the work by a longér or shorter period, according to circumstances, but certainly some period of time. This is entirely inconsistent with the theory of a hen, as has often been adjudged.

The case of Stoddard Woolen Manufactory v. Huntley (8 N. H., 441), is in point. It was an action of trover against a clothier for converting 1,000 yards of flannels, which he had dressed for the plaintiff, and the defendant set up a Hen for the price of his work. The work had been done under an agreement between plaintiff and defendant that the defendant should dress what flannels the plaintiff should make during the year, and finish them as fast as manufactured, and bale them; the plaintiff to pay for finishing once in three months. Under this agreement, flannels had been dressed by the defendant and returned to the plaintiff for about six months, and at the end of one of the quarters the defendant had on hand two bales, for the work on which he had not been paid. The plaintiff, through its agent, demanded these bales, and the defendant refused to deHver them without being paid for the dressing. The court held that the legal effect of the contract was that the flannels were to be deHvered to the plaintiff as fast as dressed, and that the dressing was not to be paid for until the end of the quarter; that by such a contract the right of Hen was waived; and that, even if some of the cloth remained in the defendant’s hands at the end of the quarter, he was not entitled to retain it for the price of dressing. The only difference between that case and the present one is that there the work was to be paid for monthly.

There are many cases iflustrating the same principle. Where it is agreed that a credit is to be given for the price of the work, not limited to a period preceding the time for the return of the article, the contract is inconsistent with the right of Hen, and none can be set up. This rule has been appHed even where the party for whom the work was done has become insolvent between the time of the employment and the expiration of the time of credit agreed upon. Fieldings v. Mills, 2 Bosw., 489. The same principle is applicable to Hens of warehousemen, carriers, and other bailees. If, by the terms of the contract, possession of the property is to be surrendered before payment, no right of Hen exists.

In Chandler v. Belden (18 Johns. 157, 162), it was held that where, by the terms of the contract, freight was not to be paid until after the deHvery of the goods, the carrier could not claim a Hen.

The present respondent cites the case of The Kimball, (3 Wall., 37); but, on looking beyond the head-note, into the opinion of Mr. Justice Field, it is certainly not an authority in favor of the respondent. There, by the terms of a charter-party, part of the freight was to be paid in advance. The cargo was to be deHvered within reach of the ship’s tackle, and the balance of the charter-money was to be payable, one-half in five days, and the other half within ten days, after the discharge of the cargo. The opinion rests upon the ground that the provision as to delivery within reach of the ship’s tackle related only to the manner of discharging, and that the credit was given only for a few days after the discharge of the cargo, and that it was no more than á reasonable time to enable the freighter to examine the condition of the goods, and determine whether he would accept them, and was not inconsistent with the retention of their possession by the ship-owner until the charter money should be paid; distinguishing the case, in this respect, from Foster v. Colby, (3 Hurl., & N., 705).

It is needless to multiply authorities on this point, though many might be cited. The counsel for the respondent contends that, the contract being an entire one, no pay for the work done by plaintiff would become due till the termination of the contract except for the agreement to make monthly payments, and that these payments were merely advances on account of the entire payment, and that an agreement to make these advances could not be considered as giving credit to the owner of the goods, but rather a credit to the mechanic. We cannot agree to this construction of the contract. The payments were not advances on account, but payments in full for the work done on goods returned during the month preceding the payment. But, assuming the construction contended for, we are unable to see how it helps the plaintiff’s case. The counsel concedes in his points that it was unquestionably understood that Hoexter was at liberty to take the goods as fast as they were laundered, because the nature of his business probably required it. If the contract price of the work was not due until the end of the contract, but the goods were to be delivered in the meantime, we fail to perceive how the contract was consistent with a right to a lien on the goods for that contract price.

We think that the doubt of the learned trial judge, as to the existence of any lien at all, was well founded, ana that the judgment should be reversed, and a new trial ordered; costs to abide event.

All concur except Peckham, J., not sitting.


author: Andrews, J.

text:
    Silas D. Gifford, Receiver, etc., App’lt, v. Michael A. Corrigan, sole ex’r, etc., impleaded with the Father Mathew Total Abstinence Benefit Society, Resp’t.

      (Court of Appeals,

      Filed April 19, 1887.)

    Deed—Assumption of mortgage in—Evidence of, by grantee—Recording NOT SUFFICENT TO PROVE ACCEPTANCE
    McEvoy, a Roman Catholic priest, recorded a deed of property to Arck- . bishop McCloskey, containing an assumption on the part of grantee to pay a mortgage thereon. There was no evidence of any knowledge in fact on the part of the grantee of the existence of the conveyance. Held, that the ground of the presumption from the bare record of a deed, that it has been delivered and accepted, wholly failed in this case
    Appeal from judgment of supreme court, general term, second department, reversing judgment for plaintiff as to McCloskey, and affirming it in other respects.

      Ralph E. Prime, for app’lt; E. C. Boardman, for resp’t.

       Modifying and affirming 38 Hun, 350.

   Andrews, J.

The defendant McCloskey, in his verified answer, denied that he entered into the covenant of assumption contained in the deed executed by McEvoy, and alleged tjiat the deed was made and executed without his knowledge, and that it was never delivered to or accepted by him. The parties proceeded to trial upon the issue so presented, and the other issues in the case. The plaintiff put in evidence from the register’s office in Westchester county the record of a deed dated May 8, 1878, recorded May 10, 1878, from McEvoy to the defendant McCloskey, purporting to convey to “John McCloskey, archbishop of New York,” for the nominal consideration of one dollar, the mortgaged premises and a lot adjacent thereto, which deed contained a covenant on the part of the grantee to assume and pay the principal sum of $3,900 on the mortgage, with interest from January 9, 1869. The deed was executed by the grantor alone. The plaintiff rested his case against the defendant McCloskey solely upon the record. The case is bare of any circumstance or evidence showing or tending to show that the defendant McCloskey had any knowledge or information of the existence of the deed, or, indeed, of the existence of the mortgaged property, prior to the commencement of the action, or that he was ever in possession, or that he ever had any conversation or negotiation with any one in respect to the property. There is no evidence who put the deed upon record, or how it came to be recorded. The bare fact of the record is all that appears connecting the defendant McCloskey with the transaction. The grantor, McEvoy, died before the commencement of the action, and the defendant McCloskey a few months after the trial.

In determining the question whether the plaintiff made out a prima facie case of the delivery to and acceptance of the deed by the grantee, certain other facts need to be noticed. McEvoy was a Eoman Catholic priest. Pie acquired title to the mortgaged property in 1870 from the trustees of the Father Mathew Temperance Benefit Society of Tuckahoe, a society incorporated under the act of April 12, 1848, for the incorporation of benevolent, charitable, scientific and missionary societies. The conveyance of the prop erty by the society to McEvoy was made under the order of the court, which authorized the conveyance to be made to him “for the use of the Eoman Catholic church, or the people of Tuckahoe,” and the deed referred to the order as the authority under which it was executed. It appeared by the petition upon which the order, was granted that the society was unable to pay the mortgage, and that the value of the premises did not exceed the amount due thereon. The plaintiff, to maintain his claim that the deed from McEvoy to McCloskey was delivered and accepted, invokes-the presumption that a party has accepted a benefit attempted to be conferred upon him, and that the record of a deed beneficial to the grantee is prima facie evidence of its delivery. The property was conveyed to McEvoy for church purposes; and it cannot be doubted that, in executing a deed to the defendant McCloskey, it was his intention to vest the title in him as archbishop for the same purposes, whatever may be the legal effect of his conveyance, and not to vest in his grantee a personal beneficial interest, in the property. It is well known that the title to church property in the Eoman Catholic Church is frequently vested in the bishop. This tends to explain a transaction which would otherwise be peculiar, and how McEvoy may have-executed a deed of the land to his ecclesiastical superior without his knowledge.

The ground of the presumption, from the bare record of a deed, that it has been delivered and accepted, wholly fails in this case. The deed was not beneficial to the grantee. The property was heavily incumbered, probably to its full value. As has been stated, there is no evidence of any possession under the deed, or of any prior contract or negotiation between the parties, or of any knowledge in fact on the part of the grantee of the existence of the conveyance. In most of the cases where delivery of a deed has been sought to be established without proof of the actual fact, there are circumstances which support the presumption of' a delivery, in addition to the bare record of the deed. We are of the opinion that, under the circumstances of this. case, a delivery cannot be presumed from the record alone, and that the .conclusion of the general term upon this point was correct. See Jackson v. Phipps, 12 Johns, 418; Jackson v. Bodle, 20 id., 184; Church v. Gilman, 15 Wend., 656; Elsey v. Metcalf, 1 Denio, 323.

Construing the exceptions in connection with the issue raised by the pleadings, we think they fairly presented the question whether the evidence justified a finding that the defendant McCloskey made the covenant upon which he is sought to be charged. But as the case on this point may be changed on a retrial, we think the court below should have ordered a new trial, and that its order should be modified in this respect.

There is another question argued by counsel of great interest, which we do not deem it necessary to decide, as it may not again arise. The question relates to the effect of the release from the covenant of assumption executed by the executor of McEvoy to McCloskey, after the complaint in the action and the notice of lis pendens had been filed, but before the actual service of process on the defendant. Is it competent for a grantor of mortgaged premises, whose conveyance was made subject to the mortgage, and contains a covenant of assumption by the grantee, without the consent of the mortgagee to release the grantee from the covenant so as to bar any remedy thereon against him by the mortgagee ? and does it make any difference whether the release is executed before or after the mortgagee has notice of the covenant, or before or after suit commenced by him thereon ? This question has never been finally adjudicated in this court, although expressions of judges are to be found bearing upon it. Hartley v. Harrison, 24 N. Y., 170; Garnsey v. Rogers, 47 id., 233; Dunning v. Leavitt, 85 id., 30; Knickerbocker Ins. Co. v. Nelson, 78 id., 150.

Prior to Burr v. Beers (24 N. Y., 178), as is shown by Rapallo, J., in Garnsey v. Rogers, the right of a mortgagee to avail himself of the benefit of a covenant of payment made by a grantee of the mortgagor was regarded as an equitable right only, and was founded on the theory that the undertaking of the grantee to pay off the incumbrance is a collateral security acquired by the mortgagor, which inures by an equitable subrogation to the benefit of the mortgagee.” Denio, J., in Burr v. Beers, supra. Assuming this to be the true foundation of the rule, the question arises, when does this equitable right of subrogation attach ? It is clear that it cannot be enforced by the mortgagee until default of the covenantor to pay the mortgage according to the terms of his covenant. But does not the equitable right of the creditor to the benefit of the covenant spring into existence contemporaneously with the covenant itself, although he cannot then avail himself of it, and although he may never be in a situation which renders a resort to it necessary ? This right does not rest on privity of contract between the covenantor and mortgagee. It is the application. of an equitable principle long recognized, to work out the real justice of the transaction. If the right of the creditor to the collateral security springs into existence concurrently with the origin of the relation of principal and surety between the mortgagor and his grantee, ought the immediate parties to the covenant, by a mere release, to be permitted to change the situation of the mortgagee, and deprive him of the security of the covenant ? It is true that there is no direct contract with the mortgagee, nor is there any consideration moving between the mortgagee and the covenantor. But does the absence of a consideration between these parties justify the mortgagor in canceling a security which he has taken for his own protection, and which at the same time operates also as a protection to his creditor, and especially when this is done for the mere purpose of defeating the remedy of the latter ? The case of Burr v. Beers established the doctrine in this state that .an action at law would he in favor of the mortgagee against the grantee of the mortgagor on the covenant of assumption. Would the defense of a release be available when the action is in this form, assuming that it would' not be available in the equitable action? In truth, is the direct action on the covenant not an action founded upon the equity of the transaction, rather than upon the notion of a contract between the parties ? We leave the question raised by the release in this case undecided. We prefer not to decide it until it is squarely and necessarily presented.

The order and judgment of the general term should be modified by directing a new trial, and, as so modified, affirmed, with costs to abide the event.

All concur; Danforth and Peckham, jj., in result.


author: Finch, J.

text:
    John Rexford, App’lt, v. The State of New York, Resp’t.

      (Court of Appeals,

      Filed April 19, 1887.)

    Board of claims — Jurisdiction of—Negligence — Navigation of the canals—Laws 1870, chap. 331.
    Plaintiff, a canal boat captain, having obtained his clearance, started along the berme bank of the canal to regain his boat, and was compelled to climb over the abutment of a bridge by means of iron rungs fastened to the stones, by the state, for that purpose. The stone gave way and plaintiff was injured. Held, that this was not a claim arising from damages resulting from the navigation of the canals within the exception of chapter 331, Laws 1870, and that the board of claims had jurisdiction of the matter. Peckham, J., dissenting.

      Appeal from state board of claims.

      A. L. Johnson, for app’lt; D. O'Brien, for resp’t.
   Finch, J.

The plaintiff’s demand against the state was dismissed by the board of claims as beyond its jurisdiction, and the correctness of that decision depends upon the meaning and construction of section 1 of the act of 1870. The state can only be sued by its own consent, and for liabilities which it chooses to assume, People v. Dennison (84 N. Y., 281); and this has been expressly held where the cause of action alleged, rested upon some misfeasance or nonfeasance, Lewis v. State (96 N. Y., 71). We are referred to no statute which permits a claim to be filed for such an injury as the claimant has suffered, except the act of 1870 (chapter 321). The later act of 1876 (chapter 444), which constituted the board of audit, and gave it authority to hear all private claims and accounts,” did not in any manner change or enlarge the liability of the state; and whoever presents a claim against it must show some statute which involves the consent of the state to be answerable before its own tribunals for such claim, or those of a class to which it belongs. The general language of the act of 1870 is broad enough to cover the present case. It permits claims to be filed for damages sustained from the canals, from their use and management, or arising from the neglect of an officer in charge, or from any accident or other matter connected therewith. It ends, however, with a proviso that the provisions of the act shall not extend to claims arising from damages resulting from the navigation of the canals,” and the case before us has been adjudged to be one of that character.

The claimant reached Syracuse upon a canal-boat which he was navigating, at which place he stopped to discharge some portion of his freight. Having done so, he went to the collector’s office to obtain a clearance; his boat meantime going on in charge of others than himself. When the clearance was obtained, he started along upon the berme bank of the canal to rejoin his boat. His route brought him to the abutment of the Warren-street bridge, which stood close to the water, and could only be passed by one following the bank of the canal by climbing up one side, and descending the other. To enable this to be done the state had provided irons fastened to the stones of the abutment, and serving as rungs of a ladder. The claimant began his ascent, passing upward from one iron to another, and, reaching the upper iron, took hold of it with his hands; but the stone to which it was attached had been insecurely fastened, and became 'loose, and fell out of the wall under his grasp, throwing him to the ground, and injuring him quite severely. For the damages thus sustained he filed a claim against the state for its negligence, or that of its officers in charge. The bridge was a structure built and maintained by the state to carry a highway over the canal. The proof is sufficient to warrant an inference that the street existed for public passage when the canal was built, and that the duty of maintaining the bridge had been assumed by and rested upon the state. While the berme bank of the canal was in no sense a public-highway, yet at the point in question it served for the passage of those whose business properly brought them to that locality. The presence of the irons was itself an invitation to persons rightfully passing to use them, and indicated a purpose on the part of the state to permit the crossing of the bridge by such means and in such manner. The claimant was nota trespasser. He was rightfully upon the berme bank of the canal, and, in virtue of his business and occupation, at liberty to pass along it and cross the abutment in' his path. The defective stone had been loose for at least a year, and long enough for an inference that the defect had come to the knowledge of the state, or its officers in charge of the canals. The act of 1870, therefore, covered the injury sustained, unless the board of claims were right in deciding that it “resulted from the navigation of the canals.”

The liability assumed by the state was general; the exception special. The state could exclude what it pleased from the scope of its broad consent, and could choose its own language for its own protection. Its exception, therefore, should take out from the broad general consent only what is strictly within its terms. The damages excluded must result from the navigation of the canals; that is, from the passage of boats along and upon their waters. Damages might result from the careless management of locks, or their imperfect maintenance or construction, to the teams drawing the boats, or those in charge of them;' from collisions due to overcrowding or insufficient room; from sudden breaks chargeable upon unskillful or careless construction. Numerous cases of this general character were naturally to be apprehended, and were intended to be excluded, and the language used in the proviso was appropriate and effective for that purpose. But it can have no just application to accidents or injuries befalling one not at the . time engaged in navigation of the canals, and which did not result from that navigation. The claimant, for the time, had abandoned his boat. Somebody else was navigating it. The former intended to resume its navigation, and was walking along the bank with that view, but until he reached and rejoined his boat he would not be actually engaged in its navigation. It is quite true that, in a certain broad and general sense, he might be said to have been engaged in the business or occupation of navigating the canals when the injury occurred, but he was none the less away from his boat, traveling upon the land for no purpose essential to the movement of his boat upon the water, and his injury did not result from, and was not occasioned by, the navigation of that boat. The language used contemplates a case in which the act of navigating is one of the concurring causes of the injury, so that the latter can be deemed a result.

For these reasons we are of the opinion that the board of claims construed the proviso too broadly, and that its terms do not exclude the claimant’s injury. The award should be reversed, and the case remitted for a new hearing.

All concur, except Peckham, J., dissenting.


text:
    In the Matter of the Petition of E. H. & D. M. Cavin, Resp’ts, v. J. B. Gleason, Assignee, App’lt.

      (Court of Appeals,

      Filed April 19, 1887.)

    Assignment—Trust creditor, when entitled to preference.
    Upon an accounting in bankruptcy or insolvency a trust creditor is not entitled to a preference over general creditors of the insolvent, merely on the ground of the naiure of his claim, and in order to follow trust funds, and subject them to the operation of the trust, they must be identified.
    Appeal from judgment of supreme court, general term, fourth department, affirming judgment for plaintiff. The opinion states the facts.

      J. B. Gleason, for app’lt; W. H. Johnson, for resp’ts.

       Modifying 39 Hun, 655, mem.

   Andrews, J.

It may properly be conceded that the $3,000 received by White from the petitioners on the 3d day of January, 1883, for investment in the Gould mortgage, constituted in his hands a quasi trust fund, which White was bound to use for the specific purpose contemplated, and which he could not divert to any other use without committing a breach of trust. The securities which formed the greater part of the fund were immediately convertible into money, and authority in White to make such conversion was implied, but only as a means of realizing the money with which to make the mortgage loan. The securities, while in the hands of White, re- ' mained the property of the petitioners; and, when converted by him, their title attached to the proceeds of the converted property. White collected the securities actually or constructively. He collected the notes against third persons and drew the money deposited in the Delaware National Bank. The two certificates of deposit issued by himself, amounting in the aggregate to $180, he accepted as money.

It is material to a proper understanding of the question presented to state a few other facts which appear in the record. White was a private banker. On the 5th of January, 1883, two days after the transaction with the petitioners to which we have alluded, he was taken sick, and on or about the 9th of January a run commenced on the bank, and on the 12th of January he made a general assignment to the defendant, Gleason, for the benefit of creditors, having at the time on hand in cash assets only the sum of $64.75. The Gould mortgage was never procured by White, and he made no investment for the petitioners of the $3,000 received on the 3d day of January. On the contrary, it was found by the judge at special term that White, after receiving and collecting the securities, and prior to the 11th day of January, in violation of his trust, used the entire fund of $3,000, excepting the sum of thirty dollars, which came to the hands of the assignee, in paying his personal debts and liabilities. But on the 11th of January, the day prior to the making of the assignment, for the purpose of securing the claim of the petitioners, he transferred to them a land contract, from which and other sources the petitioners have realized sufficient to reduce their claim to the sum of $877.27. It was admitted on the hearing of the petition, which took place in January, 1885, that the assignee had then on hand proceeds of the assigned estate sufficient to pay the said sum of $877.27, but it was conceded by the petitioners that the assigned estate was insufficient to pay in full the debts of the assignor.

The special term has granted the prayer of the petitioner, and made an order directing the assignee to pay the claim of the petitioners out of the money in his hands, and this order was affirmed by the general term. The order in effect appropriates out of the assigned estate the sum of $877.27 to the payment of the claim of the petitioners, in preference to the claims of the general creditors.

The petitioners, to maintain the order in question, rely upon the rule in equity that, as between cestui que trust and trustee, and all parties claiming under the trustee otherwise than by purchase for valuable consideration, without notice, all property belonging to a trust, however much it may be changed or altered in its nature or character, and all the fruit of such property, whether in its original or altered state, continues to be subject to or affected by the trust. Pennell v. Deffell, 4 De Gex, M & G., 387, Turner, L. J. This settled doctrine of equity has its basis in the right of property. The owner of personal property which, by the wrongful act of his agent or trustee, has been changed and converted into chattels of another description, may elect to treat the property into which the conversion has been made as his own. Upon such election the title to the substituted property is vested in him as fully as if he had originally authorized the wrongful act, which title he may assert in a legal action to the same extent as he could have asserted title in respect to the original property. The reason of the doctrine is stated by Lord Ellenborough in the leading case of Taylor v. Plumer (3 Maule & S., 562), in language often quoted: “For,” he says, “the product or substitute for the original thing still follows the nature of the thing itself, so long as it can be ascertained to he such, and the right only ceases when the means of ascertainment fail.” The question in that case involved the legal title to certain stock and bullion which an agent of the defendant, intrusted by his principal with money to invest in exchequer bills, had wrongfully misapplied to the purchase of the stock and bullion, intending to abscond with it and go to America, and the court sustained the defendant’s title.

The courts go very far to protect the rights of property against a wrongdoer. They follow it through whatever changes and transmutations it may undergo in his hands, and as against the wrong-doer, transferred to the changed and altered product the original title, however much the original property has been increased in value by his labor or expenditure, provided only that the product is still a chattel, and is composed of the original materials. Silsbury v. McCoon, 3 N. Y., 379. But a court of law, as a general rule, can deal only with the legal title; and when the legal identity of the property is destroyed, or the property cannot be traced specifically into another thing, it is powerless to give relief, except by action for damages against the wrong-doer. This is implied in the language of Lord Ellenborough, already quoted; and that language is followed by an illustration of his statement that the right to follow property only ceases when the means of ascertainment fail, “ which,” he remarks, “is the case when the subject is turned into money, and mixed and confounded in a general mass of the same description.”

It is not important to inquire whether later decisions have not established, even in respect to strictly legal actions, a somewhat less stringent limitation upon the right of pursuit than that indicated in the language just quoted, But it is unnecessary to pursue this inquiry here. It is clear that in this case the trust fund has been dissipated and lost by the act of the trustee. It is neither specifically in the hands of the trustee or of his assignee, nor is it represented by other property into which it has been converted. The fund, according to the finding, (with the exception of the sum of thirty dollars) was paid out on the debts of White before the assignment. Plainly, there is no room for any contention that the petitioners have legal title to any of the assigned property. The sole inquiry is whether a case is made for equitable intervention in favor of the petitioners in the administration of the insolvent estate. It is clear, we think, that, upon an accounting in bankruptcy or insolvency, a trust creditor is not entitled to a preference over general creditors of the insolvent, merely on the ground of the nature of his claim; that is, that he is a trust creditor as distinguished from a general creditor. We know of no authority for such a contention. The equitable doctrine that, as between creditors, equality is equity, admits, so far as we know, of no exception founded on the greater supposed sacredness of one debt, or that it arose out of a violation of duty, or that its loss involves greater apparent hardship in one case than another, unless it appears, in addition, that there is some specific recognized equity founded on some agreement, or the relation of the debt to the assigned property, which entitles the claimant, according to equitable principles, to preferential payment. If it appears that trust property specifically belonging to the trust is included in the assets, the court doubtless may order it to be restored to the trust. So, also, if it appears that trust property has been wrongfully cc nverted by the trustee, and constitutes, although in a changed form, a part of the assets, it would seem to be equitable, and in accordance with equitable principles, that the things into which the trust property has been changed, should, if required, be set apart for the trust, or, if separation is impossible, that priority of lien should be adjudged in favor of the trust-estate for the value of the trust property or funds, or proceeds of- the trust property, entering into and constituting a part of the assets. This rule simply asserts the right of the true owner to his own property.

But it is the general rule, as well in a court of equity as in a court of law, that, in order to follow trust funds, and subject them to the operation of the trust, they must be identified. A court of equity, in pursuing the inquiry and in administering relief, is less hampered by technical difficulties than a court of law; and it may be sufficient, to entitle a party to equitable preference in the distribution of a fund in insolvency, that it appears that the fund or property of the insolvent remaining for distribution includes the proceeds of the trust-estate, although it may be impossible to point out the precise thing in which the trust fund has been invested, or the precise time when the conversion took place. The authorities require at least this degree of distinctness in the proof before preference can be awarded. See Vau Allen v. American Nat. Bank (52 N. Y., 1); New ton v. Porter (69 N. Y., 133); Ferris v. Van Vechten (73 N. Y., 113); Pennell v. Deffell, (supra); Frith v. Cortland (2 Hem. & M., 417.)

The facts in this case fall short of the proof required within any case which has come to our notice. The trust fund, with the single exception mentioned, was misappropriated by White to the payment of his private debts prior to the assignment. It cannot be traced into the property in the hands of the assignee, for the plain reason that it is shown to have gone to the creditors of White in satisfaction of their debts. The court below seem to have proceeded upon a supposed equity springing from the circumstance that, by the application of the fund to the payment of White’s creditors, the assigned estate was relieved pro tanto from debts which otherwise would have been charged upon it, and that thereby the remaining creditors, if entitled to distribution without regard to the petitioner’s claim, will be benefited. We think this is quite too vague an equity for judicial cognizance, and we find no case justifying relief upon such a circumstance. In a very general sense, all creditors of an insolvent may be supposed to have contributed to the assets which constitute the residuum of his estate.

The case of People v. City Bank of Rochester (96 N. Y., 32,) seems to have been misunderstood. The question considered in this case was not raised there, and it was not claimed in that case that the proceeds of the checks of Sartwell, Hough & Co., the petitioners, had not gone into the general fund of the bank, or that they had not passed in some form to the receiver. The court did not decide, nor intend to decide, that the petitioners would have been entitled to a preference in case the proceeds of the checks had been used by the bank, and were not represented in its assets in the hands of the receiver.

For the reason stated, we are of opinion that the orders of the special and general terms should be modified by reducing the sum directed to be paid by the assignee to the sum of thirty dollars, with interest from April 19,1883, but without costs to either party.

All concur.


author: Freedman, J.

text:
    Jeremiah R. Bryon, Resp’t, v. The Mayor, Aldermen and Commonalty of the City of New York.

      (New York Superior Court,

      Filed May 2, 1887.)

    1 New York (city of)—Contract—Action for compensation under— When verdict wrongly directed.
    This action was brought to recover for work done under a contract. By the terms of the contract this plaintiff was required to present certificates of the work clone thereunder in order to entitle him to receive the stipulated compensation. Held, that the plaintiff leaving, by the acts of the defendants, been prevented from the full performance of his contract, the defendants were not entitled to the direction of a verdict in their behalf on the ground that the plaintiff had failed to obtain the certificates called for by the contract and had failed to prove a demand for such certificates and unreasonable refusal to give them.
    2., Same—Extent of recovery.

      Held, that for the same reasons the plaintiff, if entitled to recover at all, was entitled to recover the actual value of the work done, and of the materials furnished, at the time the performance of the contract was prevented.
    3. Same—Proof of inherent defect in plans as excuse for proper performance OF CONTRACT WHEN ALLOWED.

      Held, that the contract as a whole, possessing no warranty on the part of the plaintiff that the work when completed should be safe and fit for the purposes for which it was intended, it was competent for the plaintiff to show in support of his claim for compensation that the plan and specifications, and which he was compelled to follow strictly, were defective per se.

    Appeal by defendants from judgment entered upon the verdict of a jury, and from order denying their motion upon the judge’s minutes for a new trial.

      E. Henry Lacombe, counsel to the corporation; Francis M. Scott, of counsel for app’lts; L. Laflin Kellogg, for resp’t.
   Freedman, J.

This action is for work done and materials furnished by the plaintiff under a contract made between him and the defendants.

By the said contract the plaintiff agreed to furnish and provide at his own proper cost and expense all the necessary materials and labor, and in a good, firm and substantial manner, and strictly in accordance with the following specifications and with the plans therefor filed in the office of the commissioner of public works, construct the necessary retaining walls, arch, steps and railing, and furnish the necessary filling for the support and protection of the roadway in the centre of Forty-second street, between First and Second avenues, in the manner and under the conditions specified in said contract.”

It was also agreed by said contract that the plaintiff should not be entitled to payment, or receive payment for any portion of the work or materials until the same should be fully completed in the manner prescribed by the contract, and such completion duly certified by the engineer, inspector and superintendent in charge of the work.

The contract further provided that the commissioner of public works should inspect the materials to be furnished and the work to be done, and to see that the same corresponded with the specifications. As matter of fact the commissioner of public works placed an engineer in charge of the whole work and also appointed an inspector to inspect the same.

The work was commenced on the 23 of August, 1877, and the building of the arch proceeded as required by the contract in fifty-foot sections. By June 29, 1878, the plaintiff had built three sections of the tunnel, or about 150 feet, and had completed, or nearly completed, the front or parapet wall near First avenue. On that day a portion of the tunnel fell in, being a piece about fifty feet in length, and composing all, or nearly all, of the third section bufit by him. At that time there was but little filling upon that portion of the tunnel which fell. The work was then suspended by the commissioner of public works, but after the lapse of some time the plaintiff was ordered to proceed and to rebuild the part of the arch that had fallen. The rebuilding was to' be done however under changed plans. The plaintiff thereupon continued the work until October 20, 1878, when the arch again fell at a section thereof built under the original plans, and prior to any change. Notwithstanding this second fall the plaintiff kept at work until the 9th or 11th of November, 1878, when he and his workmen were driven from their work by order of the inspector and of the police.

As the plaintiff was thus prevented by the acts of the defendants from the full performance of his contract, the defendants had no right to the direction of a verdict in their behalf on the ground that the plaintiff had failed to obtain the certificates called for by the contract and that he had failed to prove a demand for such certificates and an unreasonable refusal to give them.

For the same reason the plaintiff, if entitled to recover at all, was entitled to recover the actual value of the work done and of the materials furnished at the time the performance of the contract was prevented. The recovery which was had, was had upon this theory.

It, therefore, remains to be considered whether the plaintiff was entitled to recover at all.

At the_ trial the plaintiff’s contention was that the plans and specifications under which the work was required to be done were so defective that by strictly following them it was impossible to construct a stable arch which would sustain the weight to be superimposed upon it; that in point of fact he had strictly followed, and had even been compelled to strictly follow the specifications and plans; and that the materials furnished and the workmanship were of the character and description called for by the contract and conformed in all substantial particulars to the requirements of the contract.

These matters were disputed by the defense, but the jury under a charge which imposed the burden of proof upon the plaintiff determined in favor of the plaintiffs Upon an examination of the whole case it is impossible to say that their finding in these respects is against the weight of evidence.

The only remaining question, therefore, is whether the plaintiff can maintain that the plans and specifications were so defective per se as to exonerate him from blame, or whether he was bound to build a safe arch, notwithstanding the defect in the plans and specifications.

Upon this remaining point the defense relies upon two cases, neither of which is applicable to the case at bar.

In Dermott v. Jones (2 Wall., 1), the contract was not only to build according to certain plans and specifications, but also to completely finish and fit for use and occupation all the houses and buildings and the several apartments thereof, etc. The latter was held to be a special and additional covenant.

In Thorn v. The Mayor, etc., of the city of London, (1 Engl. Law Rep., Appeal cases, 120), the • plaintiff, in attempting to build and finish a bridge for the defendants as he was bound to do, found that tho plans and specifications were so fatally defective that the work could not be done under them, and he thereupon, in order to finish the bridge as by his contract ho was bound to do, departed from the plans and specifications by adopting a much more expensive method of construction. He finished the bridge and the work was accepted. In the course of time he brought suit for the extra expense to which he had been put by reason of the inadequacy of the plans and specifications furnished to him. It was in this suit that it was held that inasmuch as his contract was absolute and unconditional that he would finish the bridge for a certain sum and in a certain time, and he had finished it, he could not recover additional compensation on the theory that the defendants had impliedly, warranted the sufficiency of the plans and specifications.

In the case at bar, the plaintiff was prevented by the defendants from completing the contract, and he recovered only for what he had actually done up to the time he was compelled to desist. The contract price was evidence of the value of the work so done, and in the absence of ether evidence it controlled, but there was no recovery beyond it. Moreover, the contract as a whole, cannot be construed as containing a covenant or warranty on the part of the plaintiff that the arch, when completed, should be safe and fit for the purposes for which it was intended. For these reasons it was competent for the plaintiff to exonerate himself by showing that the plans and specifications which he was actually compelled to follow strictly, were defective per se.

The judgment and order should' be affirmed, with costs.

Sedgwick, Oh. J., and O’Gorman, J., concur.


author: O’Gorman, J.—The

text:
    Thomas Hand, an infant, by James Hand, his guardian, ad litem, App’lt, v. John Klinker, Resp’t.

      (New York Superior Court, General Term,

      Filed May 2, 1887.)

    Negligence—Streets—Sidewalk—Right to back wagon across.
    The plaintiff was injured by being struck by a wagon belonging to defendant winch was backed across the sidewalk in 49th street, in New York city, in order that some sacks of salt on the wagon could be delivered into the window of a factory on that street. The trial judge charged that the act of defendant’s driver in placing his wagon on the sidewalk, was not, per se„ unlawful. Held, not error. Following Welsh v. Wilson, 101 N. Y., 254; 1 N. Y. State Reporter, 19.
    Appeal from judgment for costs entered on verdict in favor of the defendant, and from an order denying plaintiff’s motion for a new trial.

      Hart & Price, for app’lt; John C. Shaw, for resp’t.
   O’Gorman, J.—The

plaintiff was injured in September, 1881, by being struck by a wagon belonging to defendant, which was backed across the sidewalk in Forty-ninth street, between Eleventh and Twelfth avenues, in order that some sacks of salt on the wagon could be delivered into the window of a factory on that street.

The plaintiff was then about eight years old.

The learned trial judge, in his charge to the jury, said, “that the defendant’s wagon was lawfully on the sidewalk. The driver had a load to unload. But the boy was, also, lawfully there, and each had to respect the presence of the other—each was bound to take care.”

To this part of the charge, “that the defendant’s wagon was lawfully on the sidewalk,” the defendant’s counsel excepted, and the only material question to be considered now is, whether that exception was well taken.

The court of appeals, in the case of Welsh v. Wilson (101 N. Y., 254; 1 N. Y. State Rep., 19), say: “The defendant, desiring to remove two large cases of merchandise from his store in the city of New York, placed a pair of skids from a truck across the sidewalk to the steps of the store. * * * The defendant had the right to place the skids across the sidewalk temporarily for the purpose of removing the cases of merchandise. Every one doing business along a street in a populous city must have such a right, to be exercised in a reasonable manner, so as not to unnecessarily incumber and obstruct the sidewalk.”

In this and the case at bar, although the facts are not. precisely the same, they are yet, in their main feature and in principle, analogous.

The trial judge, in the case at bar, was justified in charging, as he did, that the act of the defendant’s driver, in placing his wagon on the sidewalk, was not, per se, unlawful under all the circumstances of the case. He clearly and carefully instructed them that the defendant was liable for any negligence of his driver in the management of his horse while the wagon was on the sidewalk.

This was all that the plaintiff was entitled to; and this and the other exceptions to the judge’s charge are not well taken.

The judgment should be affirmed, with costs; and the order denying the motion for a new trial should be affirmed.

Sedgwick, Ch. J., concurs.


text:
    The Mutual Life Insurance Company of New York v. Isaac T. Smith.

      (New York Superior Court, General Term,

      Filed May 2, 1887.)

    1. Mortgages—Foreclosure of—Provisions of Code Civ. Pro. relative TO, APPLICABLE TO CASES WITHIN NEW YORK STATE—CODE ClV. PRO., S 1628.
    It is provided by Code Civ. Pro., § 1628, that “ while an action to foreclose a mortgage upon real property is pending, or after final judgment for the plaintiff therein, no other action shall be commenced or maintained, to recover any part of the mortgage debt, without leave of the court in which the former action was brought. Held, that the provisions of the Code Civ. Pro. relative to the foreclosure of mortgages were intended to regulate the remedy in such cases within the territorial limits of New York State.
    2. Same—Action to secure balance due on bond—Permission to bring NOT NECESSARY WHEN ACTION OF FORECLOSURE WAS BROUGHT IN ANOTHER STATE.

      Held, that where a mortgage on lands had been foreclosed in the courts of another State, it was not necessary to procure the permission of that court before bringing an action in a court of New York State for a balance due upon the bond to secure the payment of which the mortgage was given.
    Exceptions of the plaintiff ordered to be heard at general term in the first instance.

      Henry G. Atwater, for pl’ff; George Putnam, for def’t.
   Freedman, J.

This action was brought to recover a bal-'

anee of $15,657.21 due on a bond made by the defendant, together with his wife, now deceased, to the plaintiff in 1872, conditioned to pay the plaintiff the sum of $20,000.

On the trial it appeared that the bond in suit had been originally secured by a mortgage made by the obligors therein named on certain property situated at Elizabeth, N. J.; that such mortgage had been foreclosed in 1882, and the mortgaged premises^ sold thereunder for $3,000, and that a balance remained 'due on the bond which, with interest up to the day of the trial, amounted to $20,123.49.

At the close of the evidence on both sides the court directed a verdict for the defendant on the ground that leave of the court in which the foreclosure suit took place had not been obtained for the purpose of bringing an action to recover the deficiency due on the bond, to which direction the plaintiff duly excepted.

The plaintiff’s exceptions were ordered to be heard in the first instance at general term.

The direction of the verdict is sought to be upheld under the provisions of section 1628 of the Code of Civil Procedure, which are as follows:

“While an action to foreclose a mortgage upon real property is pending, or after final judgment for the plaintiff therein, no other action shall be commenced or maintained, to recover any part of the mortgage debt, without leave of the court in which the former action was brought.”

The question, therefore, is whether that section can be held to apply to foreclosures outside the state of New York.

The section referred to is a re-enactment of the provisions of the Revised Statutes to about the same effect.

Before the Revised Statutes no decree for deficiency could be rendered in a foreclosure suit. Dunkley v. Van Buren, 3 Johns. Ch., 330.

To recover the deficiency where one arose, a separate suit at law upon the bond was necessary, and the creditor had the right to institute proceedings at law upon the bond even during the pendency of the foreclosure suit. Jones v. Conde, 6 Johns. Ch., 77.

The debtor was thus subjected to a double litigation, and the provisions of the Revised Statutes were enacted for the express purpose of abolishing this oppressive course of proceeding. Equitable Life Ins. Co. v. Stevens, 63 N. Y., 341.

One of the provisions thus enacted was that after the filing of a bill for the satisfaction of a mortgage, the court should have power to decree payment of the deficiency by the mortgagor and issue execution thereon. Section 152.

Another was that after the filing and during the pendency of the bill, and after decree rendered thereon, proceedings at law for the recovery of the mortgage debt should not be had, unless authorized by the court of chancery. Section 152.

It was also provided that a person other than the mortgagor, who was liable for the mortgage debt, might be made a party to the suit and payment of the deficiency decreed against him (sec. 154).

These provisions were all contained in title 2 of chap. 1 of part 3 of the Revised Statutes, which was entitled, “Of the court of chancery,” and in article 6 of said title entitled, “ Of the powers and proceedings of the court upon bills for the foreclosure or satisfaction.' of mortgages,” and they were evidently intended to regulate the foreclosure of mortgages in the state of New York only. The bill referred to was a bill filed in the court of chancery, and it was only after the filing of such bill, that is, a bill filed in the court of chancery of the state of New York, that proceedings at law for the recovery of the mortgage debt were forbidden.

The provisions of the Revised Statutes have been reenacted in the Code of Civil Procedure with such changes only as were rendered necessary by the changes in the judicial system, that is, by the change in the reorganization of the courts of the state and the fusion of law- and equity.

Section 1628 of the said Code is contained in chapter 14, entitled “ Special provisions regulating, actions relating to property,” and in title 1, entitled “ Actions relating to real property,” and in article 4, entitled “Action to foreclose a mortgage.” It is, therefore, a regulation in regard to the foreclosure of mortgages upon real property in the state of New York. It does not attempt to regulate actions on bonds generally, but only actions on bonds which are secured by mortgage on real property in New York. Bonds secured by mortgages on real property in other states are not distinguished from bonds made without collateral security.

An action to foreclose a mortgage upon real property is a strictly local action as distinguished from a transitory action, and consequently must always be brought within the territorial limits of the state in which the property is situated, and which conferred upon the court jurisdiction over the subject matter of the action. The provisions of the Code of Civil Procedure relating to the foreclosure of mortgages are intended to regulate the remedy in such cases within the territorial limits of the state of New York, and the remedy is to be had through the action of certain courts within the state. By analogy of reasoning, no ° greater extra territorial force can be given to any such provision of the said Code than was given in Van Voorhis v. Brintnall (86 N. Y., 18), and Thorp v. Thorp (90 N. Y., 602), to the disqualification to marry again imposed by the judgment of a court of this state upon a defendant adjudged under the statutes of this state to have been guilty of adultery. It certainly cannot be inferred from the language of section 1628 that the intention of the legislature was that application for leave to bring an action in the state of New York was to be made to a court of another state which, under the laws of that state, might have no power to grant such leave, or the action of which, even if it possessed the power, could not be reviewed by any appellate tribunal of this state. •

For the foregoing reasons the direction of the verdict was erroneous.

The plaintiff’s exceptions should be sustained, the verdict set aside, and a new trial ordered, with costs to the plaintiff to abide the event.

Sedgwick, Ch. J., and O’Gorman, J., concur.


author: O’Gorman, J. Truax, J.

text:
    Daniel Fayerweather et al., App’lts, v. Phenix Insurance Company, Resp’t.

      (New York Superior Court, General Term,

      Filed May %, 1887.)

    1. Insurance (marine)—Acts of masters or mariners.
    Insurers are not responsible for the fault, negligence or misconduct of the master or mariners not amounting to barratry.
    2. Same—Bill of lading—Subrogation of insured rights to insurer.
    It was agreed in a certain policy of marine insurance that the assured would subrogate to the insurer all their claims against the transporters of said merchandise not exceeding the amount paid by said insurers. After making this agreement with the insurers the plaintiff contracted with the transporters, that in case of any loss, detriment, etc., to any of the property during transportation, whereby any legal liability or responsibility should" be incurred by the terms of said contract, the carrier should have the full benefit of any insurance that might be, or have been, affected upon or on account of said goods. The evidence showed that the goods were lost through the negligence of the transporters. Reid, that but for this clause in the bill of lading the defendant would have a right of action against the carrier for damages.
    3. Same—Pleadings—Proof of loss—Waiver must be alleged in complaint.
    Proof of loss is a condition precedent to maintaining an action for insurance, and.if the plaintiff relies on a waiver of the proof of loss instead of upon the fact that proof of loss was made, such waiver must be alleged in the complaint and proved on the trial.
    Appeal by plaintiffs from a judgment entered in favor of the defendant on a trial before the court, without a jury.

      George A. Black, for resp’t; Stewart L. Woodford and William C. Wallace, for app’lts.
   O’Gorman, J.

The judgment is affirmed, with costs, on the opinion of the learned trial judge.

Sedgwick, Ch. J., and Freedman, J., concur.

The following is the opinion of the trial judge :

Truax, J.

The plaintiffs seek to recover for a loss that

they sustained upon goods that had been insured by the defendant under a policy of marine insurance. The goods were on board a steamer at the time the loss occurred.

The goods were insured against “perils of the sea, barratry of the master and mariners, and all other perils, losses and misfortunes that have or shall come to the hurt, detriment or damage of the said goods and merchandise or any part thereof.”

The evidence shows that the steamer sank through the negligence of one of the mariners.

The negligence of the master or mariners was not one of the things insured against. Negligence is not barratry unless it be so gross as to amount to evidence of fraud. Atkinson v. The Great Western Ins. Co., 65 N. Y., 538. In this case there is no evidence of gross negligence.

There is nothing in the case which tends to show that the vessel was sunk through the willful or fraudulent act of the master or mariners, and it is settled that insurers are not responsible for the fault, negligence or misconduct of the master or mariners not amounting to barratry. Grim v. The Phenix Ins. Co., 13 Johns., 451.

No presumption arises from the fact that the vessel sank that she was unseaworthy at the time of the commencement of the voyage, because she sank after the voyage had ended, and the cause of her sinking is explained and is shown to have been something outside of the condition of the vessel. In other words, the evidence shows a cause of loss that excludes an inference of unseaworthiness. Berwind v. Greenwich Ins. Co., 53 Sup. Ct. Rep., 103.

It was agreed in the policy of insurance that the assured would subrogate to the insurer all their claims against the transporters of said merchandise not exceeding the amount paid by said insurers.

After malting this agreement with the insurers, the plaintiffs contracted with the transporters “That in case of any loss, detriment or damage to be sustained by any of the property herein receipted for during the transportation, whereby any legal liability or responsibility shall or may be incurred by the terms of this contract, the carrier shall have the full benefit of any insurance that may have been effected upon, or on account of said goods.”

The evidence shows that the goods were lost through the negligence of the transporters. This is enough to make them liable to the plaintiffs. And, therefore, by the above provision of the contract between the plaintiffs and the transporters, the transporters were entitled to the full benefit of this policy of insurance; but by the very terms of the policy of insurance it was agreed that the defendants, the insurers, should be subrogated to any claim that the plaintiffs might have against the transporters. But for this clause of the bill of lading the defendant would have a right of action against the carrier for damages.

This right of. action does not depend upon the implied right of subrogation; the contract which gives the defendants this right of action is express.

It is an agreement between the plaintiffs and the defendants that the plaintiffs will assign to the defendants any cause of action that they may have against the carriers; but by the agreement above mentioned they have in effect released the carriers from any cause of action.

If the plaintiffs should recover in this suit compensation from the insurance company, the agreement in the bill of lading has made it impossible for plaintiffs to do what they agreed with the defendant they would do.

The plaintiffs allege that they gave to the defendant due notice and proof of loss, as required by the policy of insurance. This allegation is denied by the defendant.

There was no evidence given on the trial that would authorize me in finding that, as a matter of fact, the plaintiff did give to the defendant proof of loss; but there is evidence that would warrant me in finding, if such fact had been alleged in the complaint, that strict service of the proof of loss had been waived by the defendant. But as this allegation of waiver was not made in the complaint, I make no finding in regard to it.

It is well settled that a proof of loss is a condition precedent to maintaining the action, and that if the plaintiff relies on a waiver of the proof of loss, instead of upon the fact that proof of loss was made, such waiver must be alleged in the complaint and proved on the trial.

Judgment is ordered for the defendant, dismissing the complaint, with costs._


author: O’Gorman, J.

text:
    Edmund Blunt, App’lt, v. Elmer Barratt, Resp’t.

      (New York Superior Court, General Term,

      Filed May 2, 1887.)

    Conversion—Action for—Burden of proof.
    In an action for a wrongful taking of a boat about January 15,1885, which was destroyed by drifting ashore on said date, the evidence showed that the defendant had a right to the possession of said boat as care-taker by the consent and direction of the plaintiff up to the latter part of December, 1884. The only question was whether this license or general authority, as care-taker of the boat, continued in defendant after said December. Held, that the plaintiff must prove affirmatively that this license or authority had been revoked before said January 15, 1885. ,
    Appeal from a judgment in favor of defendant on verdict of a jury, and from an order denying plaintiff’s motion for a new trial.

      Charles E. Miller, for app’lt; Charles Blandy, for resp’t.
   O’Gorman, J.

The action was for wrongful conversion by the defendant of a small steam yacht belonging to the plaintiff, and of which the defendant had been, during the summer of 1884, engineer and care-taker, in the employment of the plaintiff.

Prior to September 11, 1884, the boat was laid up for the winter by the defendant, under the direction of the plaintiff, and the plaintiff testified that thereupon all employment by him of the defendant, and all the authority of the defendant over the boat came to an end.

The defendant afterwards removed the boat from the place where it had been laid up by him to another place, from which it drifted, went ashore, and became a total wreck.

The_ defendant testified that he was employed by the plaintiff to look after the boat during the whole winter, and in the exercise of the general license and powers thus conferred on him, he continued in charge of the boat, and in the exercise of his best judgment, removed the boat from where she had been first placed by him, and that her loss was the result of an accident, and not of any negligence or wrong-doing for which he was to blame.

The cardinal issue in the case, however, was, whether the defendant had been thus employed to look after the boat during the winter; and on this issue the evidence was conflicting.

_ The learned trial judge charged the jury, that the plaintiff, in order to recover, should establish the wrongful taking of the boat, and for that purpose it was enough to establish a taking by defendant without authority, or the color of an authority.

To this instruction the learned counsel for the plaintiff excepted on the ground that it was sufficient for the plaintiff to prove that he owned the boat, and that defendant took it away, and that the onus of proving license in the defendant rested on him.

This exception is not well taken.

The action is for a wrongful taking of the boat about January 15, 1885.

That the defendant had a right to the possession of the boat by the consent and direction of the plaintiff up to the latter part of December, 1884, is testified to by plaintiff himself, and it is not denied by defendant that he did subsequently remove the boat from where it was then placed, but he testified that his authority as care-taker did not ctease when she was first laid up by him, but continued, during all the winter.

The only question then was whether this license or general authority as care-taker of the boat continued in defendant.

That such authority did not continue, was the gist of the action, and the foundation of the plaintiff’s claim, and unless that discontinuance was proved, the plaintiff could not recover. The plaintiff did, in his own testimony at the trial, give evidence that the defendant’s authority over the boat did not continue, but ceased by his full discharge in the latter part of December. In this he was contradicted by the defendant, and by witnesses examined on his behalf, and the question was left by the jury to decide on all the evidence. The affirmative of that issue was clearly with the plaintiff, and the trial on his part was conducted under that theory.

I am of the opinion that there was no error in the charge excepted to, and even if there were, it would not have affected the jury to the injury of the plaintiff, for the learned judge said to the jury that he meant by the words, “preponderance of evidence, only a preponderance of such facts and circumstances as carries conviction to your minds.” Thus he merely instructed them to find according to the weight of evidence, and on the side, whichever it was, on which that weight predominated.

The judgment appealed from is affirmed, with costs.

Sedgwick, Oh. J., concurs.