author: Daniels, J.;

text:
    THE PEOPE ex rel. JAMES W. SMITH v. THE COMMISSIONERS OF TAXES AND ASSESSMENTS FOR THE CITY OF NEW YORK. PEOPLE ex rel. WILLIAM R. RENWCK v. THE SAME.

      Taxation — what subject to — “ land, ” — msa/rting of.

    Certain lots under water were conveyed to the relator’s grantor by the city of New York, the conveyance reserving therefrom so much thereof as formed part of Stanton street, “ for the use and purpose of public streets and highways,” the grantee covenanting to build a wharf on that portion reserved for Stanton ■ street, and keep the same in good repair, and that the same should always be used as a public wharf, he to have and enjoy all wharfage, cranage, benefits and advantages growing or arising from the wharf so erected. Held, that the interest of the grantee in the wharf so erected was “land,” within the meaning of that term as used in the statutes of this State relating to taxation, and was properly assessed as such thereunder.
    Oeetioraei to review the proceedings of the commissioners of taxes and assessments of the city of New York, in assessing certain property belonging to the relator.

      E. 0. Andrews, for the relator.
    The land upon which the pier is built belongs to the mayor, etc., being paid of one of their streets. The pier, though built by Smith, belongs to the mayor, etc., being attached to their realty. Being their own property, it is not taxable. (Dillon, Munic. Corp., vol. 2 [2d ed.], § 61 J; Cooley on Taxation, 130.) What property the relator has here is an exclusive and perpetual right to go upon the pier, it being part of a public street, to receive wharfage from persons using the pier. This is not land or real estate or personal property. It is a franchise, an incorporeal hereditament. (Bored v. The Ma/yor, 2 Sandf., 552; 3 Kent’s Oom., 458, 459; Be Witt v. Says, 2 Cal., 468.) Being neither land nor personal property, the relator’s franchise was not liable to taxation. (Bored v. The Ma/yor, 2 Sandf., 552; Be Witt v. Hcvys, 2 Cal., 468.)

      Wm. O. Whitney, for the respondents.
   Daniels, J.;

In 1852, the mayor, etc., of the city of New York conveyed a water lot, or land under the water of the East river, to William Smith and Milton G.‘Smith. It was described by metes and bounds in the deeds, subject to the reservation of so much of the premises as formed parts of East and Stanton streets “ for the use and purposes of public streets and highways,” to be extended through the premises conveyed. The deed contained “ a covenant, on the part of the grantees, that they, their heirs and assigns, would build, on the requisition of the said mayor, aldermen and commonalty, such wharfs or piers on that part of Stanton and East streets as should be directed, and keep them at all times thereafter in good order and repair, and that the same should always be and be used as public wharfs.” And the deed also contained a covenant, on the part of the corporation, that the parties of the second part (the said Smiths) their heirs and assigns, should and might, at all times thereafter, have and enjoy all wharfage, cranage, benefits and advantages growing or arising from the wharves so erected. William Smith afterwards acquired the rights of the other grantee in the premises, and erected the wharf on Stanton street, mentioned in the covenant, and he conveyed it to the relator by deed, dated on the 20th of June, 1866, “together with the privileges, advantages, hereditaments and appurtenances thereto belonging.” His interest in the property was assessed by the respondents at the sum of $4,000. To that he has objected that it is an interest not liable to taxation under the laws of this State.

"While the wharf has been erected, and is maintained as a portion of a public street, it is evidently not for the general purposes of travel as other portions of the streets of the city are used, but for the use of persons having occasion to go upon it for the transaction of the business to which these structures are always devoted,, and subject to that use of it. The wharf was designed for the mooring, lading and unlading of vessels, and for the transfer of property to and from them; and, by the deed made conveying the land, the right and privilege of carrying on this business, upon and by means of the wharf, were conveyed tp the grantees, their heirs and assigns, for their own benefit, profit and advantage. That gave them the substantial use and enjoyment of the property in perpetuity, subject only to the right of the public to pass on and off the wharf as a street. That was an exception or reservation of an important character; but it could not so far interfere with the grantee under the deed, as practically to impair his rights to have the land devoted to the maintenance of the wharf, or prevent him from enjoying all the advantages and emoluments derived from that structure in its use as private property, for all the purposes to which it could be appropriately applied in carrying on commercial business. So far as the formal title was left in the city, it was subject to such burthens as constituted all the substantial elements which may be derived from the ownership of property; and under the terms of the statute that was sufficient to render such owner liable to taxation on account of it. The provisions made upon that subject were evidently designed to' include every species of real and personal property. (Barlow v. St. Nicholas Bank, 63 N. Y., 399, 406.) For it was declared that all lands and all personal estate within this State, whether owned by individuals or corporations, shall be liable to taxation, ” subject to certain exemptions not requiring special consideration, because they are not particularly applicable to this case. And the term land,” it was provided, shall be construed to include the land itself, all buildings and other articles erected upon or affixed to the same, all trees and underwood growing thereon,” etc. (1- R. S. [5th ed.], 905, §§ 1, 3.) The wharf was erected upon and affixed to the .soil, within the import of these terms as they were used in this statute; and the relator was its substantial owner. The privileges secured to him were such as could be only created by deed, and he derived his right to their enjoyment by an instrument of that description. They were supported by an interest in the land constituting a right to have it devoted to the purposes mentioned in the original deed, and they rendered him the beneficial owner of it. Property devoted to the ordinary pursuits of business cannot usually be more completely subject to the use and profit of the owner than this was rendered. The substantial advantages which can be secured from the land have been conveyed to him; and his interest in it is very nearly equivalent to that of the absolute owner. It was not personal property in any sense of that term, and still it was as surely property. It depended upon and issued out of the land, and constituted an interest in it of a most valuable nature. For that reason, it was a part of the land, and within the meaning of that term as it was used in the statute declaring what should be the subjects of taxation.

Under somewhat analogous circumstances, the right of a railway company to maintain and operate a railway over the lands of the Seneca Nation of Indians, and to which it could acquire no title, was held to be taxable in People v. Beardsley (52 Barb., 105). And that was afterwards affirmed by the Court of Appeals. The same conclusion was adopted concerning the interests which a street railway company acquired in certain streets by the construction of a street railway over them in the case of The People v. Cassity (2 Lans., 294). The subject was fully examined at that time, and a repetition of what was then said upon it, and the authorities relating to it, will, for that reason, be unnecessary on the present occasion. That case was taken to the Court of Appeals and the liability of the interest of the company to taxation as land was affirmed. (46 N. Y., 46.) And these authorities, in principle, sustain the liability of the relator to taxation on account of this property.

In the case of Boreel v. Mayor, etc. (2 Sandf., 552), this subject was considered, and the conclusion adopted that the interest of the grantee in the property was not liable to taxation. But as the point was not actually presented by the facts at that time before the court, and a more enlarged construction than was then considered proper has been since placed on the term land,” as it has been used in the statute, this authority should not be accepted as controlling in this instance. If it should be, then, as it was there held, all incorporeal hereditaments must escape taxation, and that could not have been the legislative design in the enactment of the law. The intention on the other hand was, that the term “ land ” should be understood as including whatever was properly comprehended by it; and incorporeal hereditaments constitute a part of that subject-matter. The exceptions and exemptions contained in the statute also support this conclusion, for they exhibit the existence of a design to specifically enumerate all that should not be rendered subject to taxation, and interests of this nature are within neither of the exemptions. By excepting the property they relate to, it was apparently intended that the statute should be understood as subjecting all other property and interests to the burthens of taxation; and justice to other property owners, and to the public, is in favor of that construction.

The case of People ex rel. Renwick, submitted with this one, presents only the point already considered, and does not require, any further examination for the purpose of determining the disposition which should be made of it. In that, as well as the case * of Smith, the action of the respondents should' be affirmed, with costs.

Davis, P. J., concurred.

Present — Davis, P. J"., Brady and Daniels, JJ.

Proceedings affirmed.


source: Caselaw Access Project

author: Dajsiels, J.:

license: Public Domain

text:
    ROSA B. PHILLIPS, Respondent, v. HENRY B. MELVILLE, Appellant.

      Beimal of action by executrix — right of action shown to be in her individually —power of court to amend pleadings upon the tnial — Fotto of verdict and judgment m action for recovery of perrsonal property —• Code, § 277.
    After issue joined in an action, brought to recover the possession of personal property, the plaintiff died, and thereafter the action was revived in the name of his widow as his executrix. Upon the trial it appeared that the husband had no title to the property, but that the same was owned by the wife in her own right. Held, that the court had no power to amend the summons and complaint
      by striking out the word “ executrix,” and thus allow the plaintiff to recover hy virtue of her own title to the property.
    In an action to recover the possession of personal property, which has not been delivered to the plaintiff, the jury should assess the value of the property and damages for its detention, and not simply find a general verdict for damages; and the judgment in such a case should be for the recovery of the property, or the value thereof in case a delivery could not be had, together with damages for its detention.
    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.

      Bow/. F. Gcurpenter, for the appellant.

      A. K. Hadley, for the respondent.
   Dajsiels, J.:

This action was brought to recover the possession of personal property alleged to be wrongfully withheld by the defendant. It was commenced in the name of Augustus E. Phillips, as plaintiff, who, in his own right, claimed the recovery of the property. He died after issue was joined, and on motion made for that purpose the action was by order revived in favor of his widow, the present plaintiff, as his executrix. Hpon the trial the evidence tended to show that the property belonged to her in her own right, and that her husband had no interest in it. The court thereupon, on her motion, struck out the term executrix, which made the action a suit in her favor personally, and in that form it was allowed to be maintained. The defendant excepted to the decision allowing this change in the action, and that exception is relied upon in support of the present appeal. According to the order which was made for its revival, the action was revived only in the plaintiff’s favor as the executrix of her husband’s estate, and it was consequently in his right that she was allowed under that to continue and prosecute it. She then claimed no other transfer of the interest in it, and for that reason no other relief could be awarded to. her under the provision allowing the revival of actions commenced by parties, afterward deceased. (Code, § 121.)

lipón the trial it appeared that the deceased plaintiff had no interest in the property sought to be recovered. For that reason she could not succeed in the action as his executrix. And when that appeared, the form of the proceeding underwent a further change, by which it was converted into an action in her own favor individually. This introduced a new right into the case wholly inconsistent with that on which it had previously proceeded. Instead of being prosecuted, as it was commenced, to vindicate the right of her husband to the property, it was from that time carried on to maintain her right to the property. That made it a new action, distinct and separate from the manner in which it had been commenced by the deceased plaintiff. It no longer depended upon his rights, but was based solely upon her own. This presented the case of a failure of proof, and not a variance. The allegation which had been originally made as the foundation of the case was left unproved in its entire scope and meaning, and for that reason the defect which the evidence developed could not be amended or corrected, as this was on the trial of the action. (Code, § 111.)

The change permitted made a new action, and that could not be done by the court at the trial. (Whitcomb v. Hungerford, 42 Barb., 178; Bush v. Tilley, 49 id., 600; Ford v. Ford., 53 id., 525.)

The property was not delivered to the plaintiff in the action, and the only verdict in the case was one for damages. That was not in the form which the law has required to be followed in this class of cases. The jury, in addition to finding for the plaintiff, should have assessed the value of the property and damages for its detention, instead of simply and solely finding a general verdict for damages. (Code, § 261.)

The same error was followed in the entry of the judgment, which was for the recovery of the damages, and not as it should have been for the recovery of the property or the value thereof in case a delivery of possession could not be had, with damages for its detention, by the defendant. (Code, § 277; Dwight v. Enos, 5 Seld., 470.) In this case it was held that where “a plaintiff in this species of action is already in possession of the property, if he succeeds in the suit he merely takes a judgment to confirm his possession, and for his.damages and costs; but in case he'has not obtained possession, he should take a judgment in the alternative that he recover tbe possession, and that tbe goods be delivered to bim, etc., or that be recover tbe value thereof, specifying such value as found by tbe jury, in case a delivery of tbe goods cannot be bad, together with bis damages, etc.” (Id., 414.) And it was afterward further added by tbe learned judge who delivered tbe opinion of tbe court that be regarded it as entirely clear that neither a plaintiff nor a defendant in an action to recover tbe possession of personal property can take judgment for tbe value of tbe property, except as an alternative.” (Id., 416.)

For these reasons tbe judgment as well as tbe order denying tbe motion made for a new trial .should be reversed and a new trial ordered, with costs to abide tbe event.

Davis, P. J., and Brady, J., concurred.

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


author: Daniels, J.:

text:
    RICHARD M. NICHOLS, Appellant, v. HENRIETTE NUSSBAUM and others, Respondents.

      ITswy — mortgage — sale of— O&riifieate of mortgagors — when it operates as cm estoppel.

    Where a bond and mortgage, executed without any consideration moving from the mortgagee, are sold to a third person or placed in his hands for negotiation, upon a usurious agreement, and the same are subsequently sold to one who purchases the same, relying upon a certificate given by the mortgagors, which states that they were executed upon a full lawful and valid consideration, and that there was .no defense thereto, or equities, latent or apparent, in any way affecting the same, the parties signing the said certificate are estopped thereby from setting up the invalidity of the bond and mortgage in an action brought by the purchaser to foreclose the same.
    Where such certificate is signed by the mortgagors, without knowledge of and by reason of misrepresentations made in regard to its contents, they are not thereby estopped from setting up the invalidity of the mortgage.
    Where the purchaser, at the time of the purchase, knows that the bond and mortgage are usurious and void, and that the statements contained in the certificate are untrue, he can derive no benefit or protection therefrom.
    Appeal from a judgment in favor of tbe defendants, entered upon tbe trial of this action by tbe court at Special Term.

      J. H. V. Arnold, for tbe appellant.

      W. H. c& D. M. Yam, Oott, for tbe respondents.
   Daniels, J.:

Tbe object of this action was tbe foreclosure of a mortgage executed by tbe defendants, Henriette Nussbaum and Philip-Nussbaiim, her husband, to 'William Katz, upon premises owned by her on One Hundred and Sixteenth street, in tbe city of New York. It was made to secure tbe payment of $4,000, and accompanied a bond executed by tbe same persons. Tbe evidence tended very decidedly to show that tbe bond and mortgage were made in form to tbe mortgagee named, simply for tbe purpose of being used to loan money upon them, and not for any debt owing to him. He accordingly, with tbe assent of tbe other parties to them, assigned them to Gustave A. Garris, who either purchased them himself or undertook to sell them for tbe parties by whom they bad been executed. It is not important to tbe disposition of tbe appeal, to determine in what capacity be took tbe assignment of the bond and mortgage, because tbe plaintiff’s rights are not wholly dependent upon bis title to them. In form Garris was tbe assignee, and if be was tbe purchaser, as there is very good reason for supposing that be was, there can be no doubt that they were void for usury in bis bands, for be acquired bis title at a greater rate of interest than seven per cent, and as they were not made to secure any existing debt or obligation that rendered them usurious.

After be bad acquired tbe title to them as be did, with a full knowledge of all tbe facts concerning their inception, a negotiation was entered into for their sale to tbe plaintiff. That was principally carried on through bis attorneys. During its progress, and before tbe plaintiff bought tbe bond and mortgage, tbe mortgagors executed and in due form acknowledged a certificate stating, among other things, that they were executed and delivered for a full, lawful and valid consideration, and that there was no defense, off-set or counterclaim thereto, nor any equities, latent or apparent, whereby they could be in any manner impaired or affected. And evidence was given, tending to show that tbe plaintiff became tbe purchaser of tbe bond and mortgage, on tbe faith of tbis certificate, for tbe sum of $3,520, but as they could not lawfully have been sold at tbis rate of discount, the plaintiff’s right to collect the debt secured by them, depended upon the validity and effect of this . certificate. If that was given for the puxpose of inducing the purchaser to believe that they were what it described them to be, and he, acting upon the faith of it, bought them at a rate of discount which would otherwise have been unlawful, the persons executing it would be precluded by means of it, from objecting to their collection on the ground of usury. It would then estop them from asserting the, fact to be different from the representation made of it by them in the certificate, and for that reason would deprive them of the benefit they might otherwise have been entitled to derive from the statute regulating the rate of interest on the loan of money. (L'Amoreux v. Visscher, 2 Comst., 278; Real Estate Trust Co. v. Seagreave, 49 How., 489.)

But the answer made in the action by the defendants, who executed the bond and mortgage, was that they were void in the plaintiff’s hands for usury; and evidence was given tending to show that the certificate was executed without knowledge of its contents, and by reason of misrepresentations made concerning it. If that were the fact, then, within the cases of Wilcox v. Howell (44 N. Y., 398) and Dinkelspiel v. Franklin (1 Hun, 339), it would not be operative, by way of estoppel, on the parties who in that manner had been induced to execute it. But the evidence on the part of the plaintiff was in decided conflict with that which the defendants gave upon this subject; and if it was to be relied upon, established the fact that the certificate was fully explained when it was presented for execution, and was subscribed with a complete knowledge of its contents.

The learned judge, before whom this cause was tried at the Special Term, did not specifically determine which was the correct view of the evidence on this point. He simply found that before the assignment was made to the plaintiff he sent a notary to visit the persons who executed the certificate, but whether they executed it understandingly, or were induced to do so because they were deceived as to its nature or contents, he did not decide. But he put his decision of the case in the defendants’ favor upon another fact entirely, which was stated to have been found by him, that the plaintiff took the assignment of the bond and mortgage, “ with the knowledge of the said corrupt and usurious agreement, and when the same was subject to and rendered void thereby, and to cover up and conceal the same.” This, of course, was decisive of the case, .even if the certificate had been executed properly and with the most complete knowledge of its contents; for that would not afford the least protection to a purchaser of the bond and mortgage, who, at tbe time be bought them, knew that tbe statement in tbe certificate was untrue, and that tbe securities were infected witb tbe vice of usury. Such a certificate will only protect persons dealing witb tbe security mentioned in it, in good faith, believing tbe truth of tbe statement made by it, and relying upon it as tbe basis of tbe purchase. A person knowing tbe contrary can in no way be benefited by such an instrument; for that reason, if this conclusion were supported by tbe evidence, it would be wholly unimportant whether tbe certificate was intelligently executed or not. Tbe bond and mortgage were found to be usurious in tbe bands of Garris, upon evidence fairly justifying that result, and if tbe plaintiff bad purchased them, knowing that to be their character, they were equally void after tbe assignment to him.

But tbe difficulty witb tbe case is, that there was no evidence whatever given upon tbe trial in any manner tending to show that tbe plaintiff knew of tbe usurious agreement made witb Garris, or that be took tbe assignment to cover up or conceal such an agreement. Tbe evidence was all tbe other way, showing that tbe purchase was made upon tbe faith of tbe certificate, and without knowledge of any usurious agreement existing between Garris and tbe parties who executed tbe bond and mortgage. Tbe learned judge probably subscribed tbe conclusions of fact as well as law, without examination, as they were prepared and submitted to him for that purpose; but that cannot change them effect in tbe case. Tbe fact is prominently presented that tbe action has by that means been disposed of upon the effect of a circumstance entirely unproved. It was tbe pivotal point in tbe case, exerting a most material influence upon its final disposition against tbe plaintiff. For that reason tbe judgment affected by it cannot be sustained. (Matthews v. Coe, 49 N. Y., 57.) It should therefore be reversed and a new trial ordered, witb costs to abide tbe event.

Davis, P. J., and Brady, J., concurred.

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


text:
    WILLIAM WHITESIDE and JAMES WHITESIDE, Respondents, v. SOLOMON HYMAN, Appellant.

      JPrcmdulent representations — compromise induced tlumby — remedy of creditor— measu/re of damages — evidence.
    Where a creditor is induced to compromise a debt upon the receipt of fifty cents on tbe dollar, by means of tbe false and fraudulent representations made to him by tbe debtor, that another of his creditors has agreed to accept such compromise, the creditor may, upon discovering the falsity of such representation, maintain an action against the debtor to recover tbe damages sustained by reason thereof.
    ■ As in such an action tbe damages sustained by the plaintiff depend upon tbe ability of tbe debtor to pay more than a moiety of his debts, it is competent to ask witnesses for the defense whether tbe defendant held property or assets sufficient to pay over fifty cents on tbe dollar of bis liabilities.
    Appeal from a judgment in favor of the plaintiffs, entered upon the verdict of a jury.
    The action was brought to recover the damages sustained by the plaintiffs by compromising a debt owing to them by the defendant, which compromise they were induced to enter into by reason of false and fraudulent representations made to them by the defendant.
    Upon the trial a witness called in behalf of the defendant was ashed by his counsel,. “ state whether your father (the defendant) had property or assets sufficient to pay over fifty cents on the dollar of his liabilities ? ” which question was, upon the plaintiff’s objection, disallowed.

      M. L. Townsend, for the appellant.

      Dermis McMahon, for the respondents.
   Daniels, J.:

The plaintiffs were creditors of the defendant, who endeavored to compromise his debts, because of his inability to pay them in full. He applied to the plaintiffs to become parties to the composition for the amount of fifty per cent of the sum owing to them. They doubted the good faith of his failure, and were indisposed to assent to that arrangement. For the purpose of overcoming their doubts, and inducing them to accept his offer, it was alleged that he represented that another firm' of his creditors had agreed to accept the compromise proposed, and to discharge him from liability for it, and that, relying upon the truth of the representation made, and what they believed to be the judgment of that firm, they were induced to make the same agreement, and did agree to receive fifty per cent in full of the indebtedness due to them, and afterwards surrendered up the notes held by them for that consideration. This was alleged to have been fraudulent, and the representation made to have been false, and evidence was given upon the trial tending to prove the existence of these facts. •

The complaint alleging them was plainly one for fraud, and fo£ that reason the plaintiffs were not at liberty to maintain their action upon any other ground, even if they had proposed to do that. (Barnes v. Quigley, 59 N. Y., 265; Graves v. Waite, id., 156.) They could not recover for the debt, although its existence appeared by the allegations which were made, because the case disclosed by them was based upon a distinct. and different theory. It was for damages sustained by means of the fraudulent representations relied upon, and not for the portion of the debt appearing to remain unpaid, and it was upon that principle that the action was tried and maintained.

As the proof showed the case it could have been sustained in no other form, because it distinctly appeared that in the final consummation of the transaction the compromise was adjusted by Henry Hyman, the defendant’s brother, and the account was assigned and the notes formally delivered to him. It was stated to one of the plaintiffs that this person was buying up all the claims, and he then took the check and notes offered for the fifty per cent, and in return assigned the account and delivered over the notes held by the plaintiffs against the defendant. This was also, in substance, sustained by the evidence of the plaintiff, with whom the business was transacted. The account he gave of it was, that Hyman’s son brought the notes, and gave them to my book-keeper, according to the agreement in the paper, and then I surrendered my own notes. In payment for those notes I received a check for a part of the money, and three notes for the balance.” The cheek and notes were produced. They were drawn by Henry Hyman, and the notes indorsed by tbe defendant. As this statement showed the business to have been completed, the plaintiffs debt was extinguished by means of it, and it appeared that Henry Hyman, to whom the account and the notes held against the defendent were transferred by the plaintiffs, had afterwards settled with him for fifty cents on the dollar of their amount.

Nnder these circumstances the' plaintiffs were not in a condition to recover on the original indebtedness. The evidence of each party showed that to have been effectually discharged. Consequently the plaintiffs, if they could recover at all, were necessarily limited to their damages for the fraud, if that, in truth, had been perpetrated by the defendant. The evidence given sufficiently tended to sustain the position that it had, to render that a proper subject for the consideration of the jury. And if its existence were satisfactorily established, as it may be presumed from the verdict rendered that it was, then the plaintiffs were entitled to such damages as it had occasioned them. Their claim proceeded upon the theory that they had been induced to surrender their demands against the defendant for less than they would otherwise have received for it, because of his fraudulent representations concerning the terms of his settlement with the other firm, and if that were true, there seems to be no good reason why they should not be allowed to maintain such an action as they instituted for their indemnity. It proceeded upon the allegation that a fraud had been committed, which had resulted in damage to them; and that has often been held to be sufficient to maintain the right of the defrauded party to recover. If one person makes a representation which he knows to be false to another, intending to induce him to act upon it, and he, believing it to be true, does act upon it and thereby sustains a loss, he may maintain an action for the recovery of compensation for such loss against the party by whose misrepresentation it was produced, and it can make no difference, in principle, whether the loss be produced by parting with money or other property, or assigning and surrendering a subsisting indebtedness. The legal elements of the case are the same in one instance as they are in the others. They all alike involve damage to the party by means of the fraudulent deception made use of. (Attwood v. Small, 6 C. & F., 404; Moens v. Heyworth, 10 M. & W., 147; Gerhard v. Bates, 2 E. & B., 488; Farrington v. Bullard, 40 Barb., 512 and 516; Willink v. Vanderveer, 1 id., 599.)

. Amd in Benton v. Pratt (2 Wend., 385), a contract not capable of being enforced by action, which was not, but would have been per-' formed but for certain false and fraudulent representations, was held sufficient to render the defendant, who made them, liable. The same principle was also applied to the case of a compromise fraudulently induced in Baker v. Spencer (41 N. Y., 562), and if is quite analogous to that which has been applied to the fraudulent negotiation of an undelivered promissory note, rendering the maker liable for its payment to a bona fide holder of it. (Neff v. Clute, 12 Barb., 466 ; Miller v. Manice, 6 Hill, 114; Decker v. Mathews, 2 Kernan, 313.)

But while these authorities will sustain the right of the plaintiffs to recover for the fraud, upon that being established by them to the satisfaction of the jury, the extent of that right must be necessarily limited to such damages as it has occasioned them. That may be greater or less, according to the ability of the defendant to pay the whole or a part of the residue of their debt at the time when it was surrendered by them, or his probable ability to do so afterwards while they might have otherwise held it against him. It was the value of the unpaid moiety of their debt which they lost by means of the fraud, if that in fact had been perpetrated, and their right to recover that, with interest, was the extent of the indemnity which the law would afford them. To ascertain that, an investigation of the defendant’s, circumstances at the time of the settlement was entirely proper, and for that piu’pose the question was competent whether the defendant had property or assets sufficient to pay over fifty cents on the dollar of his liabilities. It manifestly had relation to his condition when the compromise was effected, and'as its form was in no way objected to, an answer to it should have been, but it was not allowed.

The objection taken to the inquiry was a general one, which simply presented the point of its competency, and the decision by which that objection was sustained was erroneous. The exception thereupon taken by the defendant was a valid one, and its correction will require another trial of the action.

Several exceptions were taken to the charge, but only one of them seems to have been tenable. That was to the refusal to charge that the plaintiffs could not recover upon the original notes and account. The evidence showed that no such recovery could be had in the ' case, and the jury should have been so instructed by the court. The case was a novel one, and it cannot be a source of surprise that another trial of it has become necessary.

Upon these two points the defendant has just cause of complaint, and to rectify them the judgment should be reversed, and a new trial ordered, with costs to abide the event.

Davis, P. J., and Brady, J., concurred.

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


text:
    GEORGE PERAULT, Appellant, v. GEORGE RAND and others, Respondents.

      Oow'ts-mm'tial —pn'oceedings of, will not he enjoined,

    A court of equity will not restrain, by injunction, a court-martial from trying one, subject to its jurisdiction, where be alleges, as tbe only ground for sucb ■ injunction, that be bas already been tried upon tbe same charge, and that be apprehends that tbe second trial will be unfairly conducted.
    Appeal from an order made at Special Term, denying a motion for the continuance of an injunction.

      H&rvry H. Mwa/nge, for the appellant.

      James In/gnom Price, for the respondents.
   Daniels, J.:

The appellant had been tried as a member of a military organization by a court-martial, and dismissed by its judgment; upon his own application, he was afterwards restored by virtue of a writ of mandamus, for the reason that his trial and dismissal were not in accordance with the requirements of the law applicable to such proceedings. And another trial was then projected, and he applied for an injunction to restrain and prevent it, because he had once been tried upon the same charges, and apprehended that the second trial would be unfairly conducted. The grounds upon which this apprehension were entertained, have been practically disproved by the affidavits presented in behalf of the defendants, but if they had not been, the case would not be a proper one for an injunction. The laws have created tribunals, which have been invested with jurisdiction to try military misconduct and offenses, and this court has no authority to nullify their provisions upon this subject, as it certainly would by restraining the proceedings by injunction. If that could be done in the case of a military tribunal, the same authority could be extended over all other tribunals where it might be alleged that there was reason to fear that the trial would not be an impartial one. Courts of equity have no such enlarged authority.

If the party proceeded against has a defense in either a civil or criminal proceeding which can be effectually made before the tribunal having cognizance of the case, the orderly administration of the law requires him to present and maintain it there, and courts of equity cannot ordinarily interfere, by means of an injunction, to prevent that from being done. (Holderstaffe v. Saunders, 6 Mod., 16; Montague v. Dudman, 2 Vesey, Sr., 396 ; 1 Water. Eden on Injunc., 67, note 1; New York Dry Dock Co. v. American Ins. Co., 11 Paige, 384; High on Injunc., § 46, and cases cited in note.)

If the plaintiff cannot be lawfully tried upon the charges • made against hiin again, he can present that objection by way of answer to the proceedings which he expects may be instituted; and if he is right in that position, the military tribunal, which must and undoubtedly will conform to what the laws and the Constitution require upon this subject, will allow his objection to prevail. But if it shall fall into an error and improperly reject the defense proposed: in case it shall be established by the evidence produced, then that can be redressed by means of the wilt of certiorari. (Rathbun v. Sawyer, 15 Wend., 451.) Cases frequently arise where parties are proceeded against a second time on the same complaint or cause of action, and when they can show themselves entitled to protection under the .previous proceeding, they are not allowed to be harassed by that subsequently instituted. But redress is always afforded by way of defense in the action or proceeding itself. It is not done by way of injunction, which, would constitute an unjustifiable interference with other tribunals equally as competent, certainly, to administer justice as courts proceeding in equity.

For these reasons, and those assigned by Mr. Justice Beady on the decision of the motion, the order should be affirmed, with the usual costs and disbursements.

Davis, P. J., concurred. Beady, J., taking no part.

Order affirmed, with the usual costs and disbursements.


text:
    THE PEOPLE ex rel. MATHIAS ZIEGLER v. THE JUSTICES OF THE COURT OF SPECIAL SESSIONS OF THE COUNTY OF NEW YORK, Respondents.

      Obscene Utw'ature — aha/p. 777 ofWIZ — age of prisoner — need not be stated in indict- ■ ment — how determined. ■

    Under chapter 777 of 1873, prohibiting the publication of obscene literature, and providing- that any person convicted thereof shall, if twenty-one years of age or upwards, be punished as therein provided, and prescribing a different punishment if he be under twenty-one years of age, it is not necessary to state the age of the prisoner in the indictment for a violation of the statute.
    It is not obligatory upon the court to call witnesses to determine the age of the prisoner,- but the court itself may determine his age from its own observation. Qurnre, whether the court may, under the Constitution, examine the prisoner as to his age for this purpose.
    Ceetioeaei to the Court of Special Sessions of the city of New York, to review the conviction and sentence of the relator for a violation of chapter YYY of 18Y3, prohibiting the publication and circulation of obscene literature.

      Bevy). F. Bussell, for the relator.

      Bem/j. E. Phelyps, for the respondents.
   Daniels, J.:

The relator was convicted upon his own confession of manufacturing and printing obscene and indecent photographs, and of having in his possession negative plates for printing and making such obscene pictures, and of having large quantities of such pictures in the room .occupied by him, in process of manufacture. This was clearly a criminal offense, according to chapter 777 of the Laws of 1873. That provided that any person who shall manufacture, draw or print, or in any wise mate any obscene boot, pamphlet, paper, writing, advertisement, circular, print, drawing or other representation, figure or image, on or of paper, or other material, of an indecent or immoral nature or use, shall, on conviction, be imprisoned at hard labor, if twenty-one years of age or upwards, not less than three months or more than two years, and fined not less than $100 nor more than $5,000 for each offense; or if under twenty-one years of age, then the imprisonment cannot exceed three months nor the fine exceed $500. (Laws of 1873, p. 1184, § 1.) The offense is rendered complete by the facts mentioned in the statute without reference to the age of the prisoner. The same act is equally an offense whether perpetrated by a person over or under twenty-one years of age; -but the statute has discriminated in the extent of the punishment, by reason of that circumstance. The age is not required to be averred in the complaint upon which the trial is to be had, but merely the facts constituting the crime, and when its commission has been established, the duty for. the first time arises to ascertain the age of the accused in order to determine the extent of the punishment. That is a common subject of inquiry in the administration of the criminal law, but the averment of the fact has never been required in the indictment or the complaint on which the trial may be had. The investigation on that subject is never important until after a conviction has been secured, and then it is usually made by means of the prisoner’s own oath. That has, in several instances, been prescribed as the proper coruse to be pursued. But this statute contains no such requirement. For that reason the fact may be ascertained by any means appropriate for that purpose. Evidence may be received from any person capable of giving it for the purpose of proving the fact, or where the appearance of the prisoner sufficiently indicates his probable age, that may be acted upon as evidence of the fact. If witnesses were to be sworn, their evidence on this subject would, in most cases, be necessarily confined to the appearance of the person, and where that indicates that he has advanced beyond the age of twenty-one years, there can be no objection to the court acting directly upon it without the intervention of witnesses whose judgment would only imperfectly express what the justices could more surely discern for themselves. Cases will arise where the appearance of the person must leave the fact of his age in doubt. There other evidence upon the subject is a plain necessity, but in most instances the indications of age are so unequivocal and decided that not the least risk can be encountered in acting upon them, and when that is the case they may, under the unrestricted provisions of this statute, be accepted as proof of the prisoner’s age.

The punishment of the offense has been seriously augmented where it may be committed by a person of twenty-one years of age or upwards, and it may well be doubted whether the convict could be properly required to expose himself to it by any information supplied by his own oath. That would be making him a witness against himself, which the Constitution of the State has prohibited in criminal cases. Under this restraint the court must act on the best information that can be obtained, and not unfrequently that will be supplied by the prisoner’s own appearance. That was the course adopted in this case, and by no assertion of the prisoner has it been maintained that the conclusion arrived at was an erroneous one. What is claimed in his behalf is that evidence should have been taken upon the subject by the examination of witnesses. That was not required by the statute nor the nature of the fact to be ascertained. The justices could, as they did, consult their own senses, and act upon the conclusion which they certainly suggested. There can be no more objection to that course in a case like the present one, than in cases where they are required to act upon the fact that the person before them is a child, a boy or a girl, white or black, a male or a female, and as they are not affirmed to have erred in their conclusion, no harm can be done in this case by holding the sentence imposed to have been a proper one. The conviction should be affirmed.

Davis, P. J., and Brady, J., concurred.

Conviction affirmed.


author: Brady, J.: Daniels, J.:

text:
    PATRICK CORRIGAN v. JOSEPH B. SHEFFIELD and WILLIAM R. SHEFFIELD.

      Contract of sale — when entire — partial delimerry under — destruction of property by fire — who must bear loss.

    On the sixteenth of July, defendants, who were paper manufacturers, agreed to purchase of the plaintiff twenty hales of rags, stating, “ We should prefer to have them after the first of August, as that is our time for taking account of stock, and we cannot conveniently discount our paper till after that time. ” On the eighteenth of July plaintiff shipped ten hales to the defendants, stating, hy letter not received till after the nineteenth, that they “had to do it to make room,” and that they would ship the other ten as ordered. On the morning of the nineteenth of July the ten hales, with other rags, were delivered and received — though without knowledge that they were part of those purchased from plaintiff — at defendants’ warehouse. On the afternoon of that day the warehouse took fire, without any fault of the defendants, and the 'rags were consumed.
    In an action to recover the value thereof, lield, (1) that the contract was an entire one for the delivery of twenty bales; that the ten hales delivered on account thereof remained at plaintiff’s risk; (2) that hy the contract, the rags were not to he delivered until August first, and that the defendants were not responsible for what might be delivered before that time.
    That there was no acceptance of the rags and no opportunity for such examination as defendants had a right to make, before deciding whether to accept or reject them. (Per Daniels, J.)
    Motion for a new trial on exceptions ordered to be beard in tbe first instance at tbe General Term, after a verdict directed in favor of tbe plaintiff.
    Tbe action was brought to recover for ten bales of rags delivered by tbe plaintiff to tbe defendants, in pursuance of tbeir order in writing, for twenty bales.
    Tbe ten bales were shipped by tbe steamer Ansonia, addressed to tbe defendants at Saugerties, on tbe 18th day of July, 1812. Tbe rags reached there on tbe nineteenth, and were taken by tbe defendants’ servants, together with other rags which bad arrived at tbe same time, into tbe mills of tbe defendants, where they usually stored tbeir rags until they needed them for manufacture into paper.
    On tbe same day tbe mills and tbeir contents, including these rags, were destroyed by accidental fire.

      The defendants did not know that the plaintiff’s rags were among those received, and the letter advising them of the shipment did not arrive until after the fire.

      Albert Ca/rdozo, for the plaintiff.

      P. Ca/ntme, for the defendants.
    The contract for twenty bales was one and indivisible. The situation of the parties was simply this : the respondent not having room to store them, shipped the goods in anticipation of the time, to be received and stored as his goods at his risk until the time for the completion of the contract had arrived. (Kelly et al. v. Upton, 5 Duer., 336 ; McDonald v. Hewitt, 15 Johns., 319 ; Rei/mers et al. v. Rid/ner, 2 Rob., 11; Kein v. Tupper, 52 N. Y., 553 ; Hill v. I/ynch, 3 Rob., 52 ; Field v. Moo7'e, Lalor Supp., 118; Rapelye et al. v. Macleie a/nd others, 6 Cow., 250; Mu/rplvy v. Adams, 8 N. Y., 291; -Hewcomb v. Cramer, 9 Barb., 102 ; Stephens v. Sauter, 19 N. Y., 35 ; Bronson v. Gleason, 7 Barb., 176 ; Pierson v. Hoag, 17 id., 213 ; Burt v. Dutoher, 31 N. Y., 193.
   Brady, J.:

The contract for the delivery of rags from the plaintiff is contained in the letter of the defendants, which is as follows:

“ Sheffield Mills, )

“ Saugerties, N. Y., July 16, 1872. )

“Mr. Patrióle Corriga/n :

“Dear Sir.— Yours of the 12th is received. You may send us the 20 bales No. 1. We should prefer to have them after the 1 st of August, as that is our time for taking account stock, and we cannot conveniently discount our paper till after that time.

“ Yours truly, etc.,

J. B. SHEFFIELD & SONS.

“We should prefer to receive no more stock till after lsi of August.”

There is nothing in the letter and nothing in the proof given showing at what time the rags were to be paid for, but the statement in the letter referring to the first of August, namely, “ we cannot conveniently discount our paper till after that time,” shows that it was to be paid for at or about the tune of its delivery, as they wished it, namely, after the first of August. The delivery of ten bales before the first of August, by carrier, was as to such quantity clearly for the convenience of the plaintiff, as shown by his letter. “ I have this day shipped you ten bales. I had to do it to make room. I will ship the other ten bales, as you ordered, or at any time sooner that you may want them.” The letter of the defendant was for twenty bales, and was an entirety. When such a contract exists and the payment is to be made on delivery, no action will lie until , the whole is delivered. The delivery of a part of the goods, under such a contract, will give no right of action against the vendee. (Soloman v. Neidig, 1 Daly, 200; Bruce v. Pearson, 3 Johns., 534; Kein v. Tuppper, 52 N. Y., 553.) If the contract in this case be regarded as silent as to the time of payment, then by the law the payment is to be made when the goods are delivered. The bales sent to the defendants and taken to their mill, were not so taken with knowledge that they were part of .the purchase from the plaintiff. The letter of advice from him to the defendants was not received until after the fire, by which they were burned. It may be said, in addition to this, that the defendants did not engage absolutely to accept the twenty bales before the first of August. They expressed a preference for a delivery after that day, and it was the duty of the plaintiff either to say that they must accept at once or to wait until the time suggested. The defendants gave the reason why they did not wish the goods delivered at once, and the reason related to the payment for them. The plaintiff understood this, and when he sent the ten bales said not only that he had to do it to malm room, but in addition that he would send the other ten at the tíme they were ordered or sooner. If he had not accepted the terms of the letter as to the dehvery after the first of August, it was not necessary to give any reason for the dehvery of the ten bales. The effect of that act, accompanied by the letter, was to’ place the goods at the mercy of the defendants. They could receive or could reject them either because it was a dehvery in part or because they were not to be sent until after the first of August. The destruction of the goods on the day they were put in the defendants’ mill prevented the exercise of this right, and without fault or laches on the part of the defendants. If, therefore, we apply the rule as to the entirety of the contract or the evident understanding of the parties in reference to the time of the delivery as an absolute right, the goods were at the risk of the plaintiff, and not at that of the defendants, under the circumstances stated. If the contract for the sale and delivery of goods be an entirety, and part of the goods are delivered or put in transit for delivery, and are lost or destroyed by fire, no action accrues to the seller against the vendee. The cases cited illustrate this rule and they control our judgment to be pronounced. The verdict should, for these reasons, be set aside and a new trial ordered, with costs to abidé the event.

Davis, P. J., concurred.

Daniels, J.:

There was no acceptance of the rags taken upon the defendants’ premises prior to the fire which consumed them, and no opportunity for any such examination of them as he had the right to make, before deciding whether to accept or reject them. For that reason I concur in the conclusion.

Verdict set aside, new trial ordered, costs to abide event.


author: Brady, J.:

text:
    JAMES C. JACOBS, Appellant, v. SYLVESTER J. MILLER, Respondent.

      Practice — right of moving pa/rty, on motion, to read affidavits not served.

    Upon tie bearing of a motion made by tbe plaintiff for tbe continuance of a temporary injunction, granted in tbe action, be will not generally be allowed to read additional affidavits, wbicb are not in answer to new matter introduced by tbe defendant, but merely corroborative of tbe facts set forth in tbe moving papers.
    Appeal from an order denying a motion for the continuance of an injunction.

      Moody JB. Smith, for the appellant.

      Thomas F. Wentworth, for the respondent.
   Brady, J.:

The appeal in this case rests chiefly on the refusal of the justice presiding at Special Term to allow the plaintiff to read an additional affidavit, in answer to the defendant’s case made against the continnance of tbe injunction. The affidavit thus rejected was not in answer to new matter introduced by the defendant, but corroborative of the facts averred in the complaint, and therefore in support of the equities alleged, which were denied by the defendant. The order to show cause, it must be borne in mind, was not at the instance of the defendant, but was a part of the injunction and order, and granted on the plaintiff’s application. The plaintiff is, therefore, the moving party. The defendant responded fully and met the issues presented by denials, sustained in some respects by the affidavit of a third person, tinder such circumstances the rule is to deny the application to read an affidavit confirmatory only of the original case, and not responsive to new matter introduced by the defendant or his witnesses. The question was considered in Powell v. Clark (5 Abbott, 70) and that case contains an exposition of the law. It is true that the rule is not so rigorous that it may not be relaxed, and it may be said to be somewhat discretionary to receive such an affidavit, but a general adherence to the rule is the practice, except where, from special circumstances, a departure is deemed necessary for the administration of justice. It assimilates to the rule which prevails on trials, and which is, that the plaintiff must exhaust his case before the defendant begins his defense. The plaintiff is rarely allowed to give affirmative evidence of the claim made after the defendant’s case is closed. He is confined to rebutting new matter, which is material to the issue. If any other practice prevailed the cause might be continued for an indefinite period, the plaintiff reproving his case, and the defendant reanswering. The rule is a just one; the plaintiff should make his case as strong as the proofs at his command will allow, and the defendant will then know what he has to answer and overcome.

If the question were here whether the discretion was abused, we could not say that it was.

The order made at Special Term should, for these reasons, be affirmed, with ten dollars costs and the disbursements of this appeal.

Davis, P. J., concurred. Daniels, J., concurred in the conclusion, because the moving party had no right to read affidavits in support of his application not served upon his adversary.

Order affirmed, with ten dollars costs and disbursements.


author: Bbady, J.:

text:
    JOHN S. PROUTY, Appellant, v. FREDERICK B. SWIFT and ALVIN BURT, Respondents.

      Judgment— action to set off— effect of prior assignment ofjudgment.

    The plaintiff recovered a judgment against the defendant Swift in January, 1868. On appeal the same was modified by the Court of .Appeals, and the modified judgment was entered in plaintiff’s favor on the 37th of March, 1873. In October, 1868, Swift commenced an action against the plaintiff, and on the 10th of November, 1870, a judgment in his favor was entered upon the report of a referee. Before tailing up the report Swift assigned to his attorney, the defendant Burt, his claim and the said report, in payment of services rendered and to be rendered in both actions, and thereafter assigned the judgment to him.
    In this action, brought by the plaintiff to have the judgment recovered by Swift set off against the one in plaintiff’s favor, held, that the assignment vested an absolute title to the judgment in Burt, and that when plaintiff’s judgment was finally entered against Swift, the latter had no judgment against him which could be set off against it.
    Distinctions between rights arising under an attorney’s lien upon a judgment and under an assignment thereof, and of remedy by motion and action to offset judgments, considered.
    Appeal from an order refusing to grant an injunction pendente Ute, to restrain the defendants, or either of them, from proceeding to collect a judgment which the plaintiff claimed the right to extinguish by setting off against it a judgment in his favor.

      Dams c& Dyon, for the appellant.

      J. JS. Oa/rey, for the respondents.
   Bbady, J.:

The plaintiff recovered a judgment against the defendant Swift, and the latter recovered a judgment against the plaintiff.

The plaintiff sought, by motion and the application of the law of set off, to extinguish the defendant Swift’s judgment, but was unsuc-cessful, inasmuch as the attorney for the defendant had a lien upon it for its full amount. The plaintiff now seeks to accomplish the same object by this action. The plaintiff’s judgment was recovered in the Supreme Court on the 16th January, 1868.

Appeals were taken to the General Term of tbat court, and to tbe Oourt of Appeals. Tbe judgment, modified by tbe decision of tbe last court named, was finally entered on tbe 27th March, 1873. Burt, one of tbe defendants in tbis action, was the attorney for Swift in tbat action in all tbe various proceedings in it. After tbe recovery of tbe judgment in January, 1868, and on or about October, 1868, Swift commenced an action in tbis court against Prouty, and on tbe 10th November, 1870, recovered a judgment.

Appeals were taken to tbe General Term of tbis court and to tbe Court of Appeals. Tbe judgment was affirmed by both tribunals.

Burt, one of tbe defendants herein, as already stated, before tbe report of, tbe referee was taken up, agreed with Swift to take an assignment of tbe claim and report, in full payment for bis services, and also agreed to pay J. E. Cary, Esq., associate counsel, for bis services, and further to argue tbe appeal from tbe judgment in favor of tbe plaintiff rendered in tbe Superior Court without extra charge, tbe defendant Swift agreeing tbat Burt’s expenses to and from Albany should be paid by him, if tbe argument should be made before tbe Court of Appeals there. Tbis agreement was prior to tbe entry of tbe judgment in favor of Swift on tbe 10th November, 1870, and of course prior to tbe judgment of tbe Court of Appeals in tbe action against Swift. Tbe judgment was also assigned.

It is quite apparent, on tbis statement of tbe facts, tbat tbe plaintiff herein was not in a condition to ask to' set off bis judgment against tbe judgment of Swift, at tbe time of tbe assignment to Burt, because an appeal was pending and undetermined. (See De Figaniere v. Young, 2 Robt., 670.)

Tbe appeal stayed bis proceedings and rendered it uncertain whether bis judgment would be retained. Tbe assignment was made.not only for services rendered in tbe actions of tbe plaintiff against Swift and Swift against tbe plaintiff, but for services prospectively to be rendered in each case. These services were rendered. Tbe claim of tbe defendant Burt, it will also be perceived, does not rest upon bis ben for tbe services, but upon an assignment which stands upon a vabd consideration, executed in good faith and for an honest purpose. Tbe laborer is worthy of bis hire.

Tbe question is whether it shall be secured to him under tbe circumstances, or yielded to tbe plaintiff herein. Tbe courts have declared against the lien of an attorney, when in an action the statutory right of set-off was invoked, making a distinction between motions for that purpose and actions brought.

The rule is familiar and needs only to be stated. The lien of the attorney, however, grows out of the services rendered and after they are rendered, as a general rule, and are not necessarily the offspring of an agreement seeming it. It grows out of the relations of the parties to each other. A lien is, however, different from an assignment, especially when the latter is founded not only upon services rendered but to be rendered, and which services to be rendered are the equivalent of so much money paid as those services would be worth. There is no statutory right given to defeat a bona fide assignment, legal in all respects. When the statute which the plaintiff' invokes was passed, there was no statute authorizing an agreement between attorney and client in relation to the subject-matter of the . action to be commenced or in progress, and such a statute having been enacted (see Code, § 303) all prior statutes in conflict with it are repealed by implication. The assignment, therefore, vested in Burt an absolute right, and when the judgment of the plaintiff herein was finally entered against Swift, the latter had no judgment in his favor, for as we have seen it had been assigned long before to the defendant Burt. It had indeed never been the property of Swift, for as we have also seen, the report of the referee, on which it was based, was transferred' and became the property of Burt before it was taken up. As the right to set off judgments does not accrue until judgment has been perfected, the bona fide assignment, previous to judgment, will cut off the right to have such judgment set off against the party in whose favor it was rendered. (Perry v. Chester, 53 N. Y., 243 ; Mackey v. Mackey, 43 Barb., 58; Roberts v. Carter, 38 N. Y., 107.)

For these reasons the order appealed from should be affirmed, with ten dollars costs and the disbursements of this appeal.

Davis, P. J., and Daniels, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    ANNE CONNORS, Administratrix, etc., Respondent, v. AMOS N. TITUS, Impleaded, etc., Appellant.

      Discontinuance of action — on ground that it has heen settled — what must he shown upon application for.

    Where a motion is made to discontinue an action, on the ground that one of the defendants has settled and discharged the plaintiff’s claim, the party so applying must furnish such evidence in proof thereof as would he sufficient to sustain a plea of puis damien continuance, or a supplementary answer setting up such settlement.
    Appeal from an order denying a motion for a discontinuance of this action on the ground that one of the defendants settled and discharged the plaintiff’s claim. The attorney for the defendant Titus, who made the application, set forth in his affidavit, among other things, “that on or about the eleventh day of January, inst., deponent was informed by the clerk and agent of the defendant, James M. Shaw, and verily believes that the claim alleged in the complaint in this action was compromised and settled by said defendant Shaw; that deponent has been informed and verily believes that the sum of $700 was paid by said Shaw to said plaintiff, or her attorney, in satisfaction of the damages for which this action was brought, and that said sum was paid on or about the 1st day of October, 1876, together with the costs and disbursements of this action.”

      G. W. Brewster, for the appellant.

      Dcmiel B. Dyddey, for the respondent.
   Brady, J.:

This appeal is not embarrassed by any question arising from the payment by one of several defendants of bis part of the. claim made against all.

The allegation is that one of them paid the plaintiff a sum in satisfaction of the damages for which this action was brought, but the statement is made wholly on information and belief, and is mere hearsay, and therefore insufficient.

On an application like this, the party must furnish evidence which would be sufficient to sustain a plea of puis dcurrien continucmce, or supplementary answer setting up the settlement.

The proof submitted would not be admitted for that purpose, and the motion was, therefore, properly denied.

Ordered accordingly, with ten dollars' costs and disbursements of this apjDeal.

Davts, P. J., and Daniels, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Davis, P. J.:

text:
    MARIA PAULINE VON WALLHOFFEN, Appellant, v. RICHARD S. NEWCOMBE and DAVID LEVENTRITT, Respondents.

      Attorney — liability of, for malqyi’aetice.

    On the 10th of March, 1873, the plaintiff employed defendants to procure a divorce for her from her husband, and agreed to and did pay $1,500, at once, to defray expenses to be incurred by them in proceeding to Berlin to ascertain facts upon which to frame a complaint, and agreed to pay the further sum of $2,000 in case the divorce was obtained in three -months from the date of the agreement. An order was procured in the action for the service of the summons by publication, on the ground of the non-residence of the plaintiff’s, husband. On the 2d of June, 1873, a final decree for divorce was obtained, and the plaintiff, on the 4th of June, paid to the defendants the $2,000j’and some few weeks thereafter she remarried.
    In August following, the husband applied to have the divorce vacated, and subsequently an order was made allowing him to come in and defend the action on account of gross irregularities committed by the defendants in obtaining the judgment. In this action, brought by the plaintiff to recover the moneys paid under the agreement and damages for malpractice, held, (1) that as the plaintiff had paid the money in ignorance of the fact that the judgment had been irregularly obtained, she was entitled to recover the same; (2) that as the judgment had been opened on account of the ignorance and negligence of the defendants, she was entitled to recover the damages sustained by her in consequence thereof.
    A-Ppeal from a judgment in favor of tbe defendants, entered on tbe dismissal of tbe complaint at Circuit.

      Townsend <& Reed, for the appellant.

      Albert Qa/rdozo, for the respondents.
   Davis, P. J.:

This action was brought to recover damages for the alleged malpractice of the respondents, as attorneys, and also to recover moneys paid to them as such attorneys, under a special agreement, which it it claimed they had not performed. On the 10th of March, 1873, the appellant, then known as Maria Pauline Lucca, entered into a written agreement with the .respondents, whereby she employed-them as her attorneys and counselors to procure for her a divorce from her then husband, Adolf von Bhade. She paid to them, on making the agreement, the sum $1,500, which they agreed to accept in full payment for the expenses and services of one of them proceeding to Berlin, for the purpose of examining witnesses to prove facts on which to base a complaint for divorce. The contract then contained the following agreement: “ It is hereby further agreed, that in the event of said parties of the second part succeeding in obtaining, and procuring to be obtained a decree of divorce within three months from the day of the date hereof, that said party of the first part will thereupon immediately pay to them the sum of $2,000, which said parties of the second part hereby agree to accept in full payment for all services and expenses appertaining to such proceedings for a divorce.”

The appellant alleged in her complaint that on or about the dth day of June, 1873, the defendants represented to her that they had fulfilled their part of this agreement, and demanded of the plaintiff, and the plaintiff thereupon paid to them, the sum of $2,000, as provided by said agreement. She alleged also that the defendants, by unskillful management and inexcusable negligence, not only failed to procure an effectual judgment, but that she had been subjected to very large damages and expenses by reason of such negligence. On the trial it appeared that the respondents commenced an action for a divorce on or about the 10th of March, 1873, which was the date of the agreement, and of course before they, could have gone to Berlin for facts upon which to base a complaint,” as provided in the agreement; that they procured an order for publication of the summons on the ground of the non-residence of the defendant in the action, and afterwards published the same; and that upon an alleged default to answer, they obtained an order of reference and took proofs, which the referee must have supposed tended to establish the material facts alleged in the complaint; that afterwards,upon the referee’s report, and on or about the 2d of June, 1873, they obtained a final judgment, adjudging that the marriage between the appellant and her then husband be dissolved, and that the appellant be at liberty to remarry, and decreeing to her also the custody of her child. Some few weeks afterwards the appellant remarried; ■and in August following, her former husband, the defendant in the divorce suit, appeared by his attorneys and made a motion to the court to vacate and set aside the judgment in such action of divorce.

Such proceedings were had, that the judgment was opened by the Special Term, and the defendant therein allowed to come in and defend upon terms; and afterwards, on appeal to the General Term, that order was modified so as to allow to the defendant unconditional liberty and right to answer-the complaint in the action, giving him forty days from the entry of the order on appeal to serve his answer, and allowing the appellant to file and serve a supplemental complaint, within twenty days after notice of the order, and the defendant to answer the same within forty days from the service thereof. It was proved that on obtaining the judgment of divorce, the defendants presented a copy of the same to the plaintiff, and received the $2,000 provided for in the agreement above set forth.

It is obvious, from the papers produced on the trial, that the court below opened the judgment to allow the defendant therein to come in and answer and defend the action, notwithstanding the subsequent marriage of the plaintiff, because of several gross irregularities committed by the defendants in obtaining the judgment. The affidavit upon which the order of publication was obtained was defective in not stating what, if any, diligence had been used to find the defendant within this State. The order directed the publication of the summons “thereto annexed;” the summons then annexed required the appearance of von Nhade within six days. The order of reference was obtained from the court before the expiration of the time for the defendant in the action to appear and answer. On the hearing before the referee, no evidence of the adulteries alleged in the complaint was produced, but evidence was produced tending to prove adulteries committed after the commencement of the action. The judgment roll was entered without containing the summons in the action. These several things were irregularities which could only be attributable to gross negligence on the part of the attorneys; and they showed a state of facts which, if known to the appellant before the payment of the $2,000, under the agreement, would have constituted a perfect defense to an action to recover that sum. In Hopping v. Quin (12 Wend., 517), the court held that an attorney cannot recover against his client for the costs of a suit in which the judgment is set aside for irregularity; nor the costs of opposing the motion to set aside the proceedings; nor can he recover for money paid for his client, if it be paid to satisfy the costs of a judgment of discontinuance suffered by his negligence or ignorance. The evidence in this case tended strongly to show that all these irregularities were unknown to the appellant at the time the certified copy of the judgment was presented to her by the respondents; and that she made payment of the $2,000, under the agreement, believing that it had been fully performed by the defendants, and that her divorce was effectual and complete. She was afterwards married, as appeared in the case, to her present husband; and at such marriage the respondents, as appeared by the certificates put in evidence, were present as witnesses.

It is manifest that the fact of the unfortunate position in which the appellant was placed by her second marriage, alone prevented the court, upon the motion, from absolutely vacating the decree. It did, however, in the disposition of the motion, put the judgment in such a condition that it will be of no avail to the plaintiff unless, upon the subsequent contested trial, she establishes against her former husband the acts of adultery alleged in the original or supplemental complaint. This state of facts tends strongly, if not conclusively, to establish that at the time the $2,000 were paid on the agreement, the respondents were not entitled to receive any portion of it; and that the appellant paid it in good faith, believing that the agreement had been fully performed, and relying upon acts on the part of the respondents which amounted to representations, that the decree or judgment required by the agreement had been regularly and properly obtained. Upon such a state of facts, there seems to be no doubt that tbe appellant was entitled to go- to tbe jury upon the question whether the $2,000 had not been paid to the respondents without consideration, and upon substantial misrepresentations.

In respect of so much of the action as relates to damages for the alleged malpractice, the evidence, it seems to us, was sufficient to have been submitted to the jury upon that question. Every person who enters a learned profession, undertakes to bring to the exercise of it a reasonable degree of care and skill. He does not undertake, if he is an attorney, that, at all events, you shall win your case; nor does he undertake to use the highest possible degree of skill; but he undertakes to bring a fair, reasonable and competent degree of skill.” (Lamphier v. Phipos, 8 Carr & Payne, 475: Hancke v. Hooper, 7 id., 84; Shilcock v. Passman, id., 289 ; Pitt v. Yalden, 4 Burr, 2060.) The law requires that every attorney and counselor shall possess and use adequate skill and learning, and that he shall employ them in every case, according to the importance and intricacy of the case; and if a cause miscarries in consequence of culpable neglect or gross ignorance of' an attorney, he can recover no compensation for any services which he has rendered, but which were useless to his client by reason of his neglect or ignorance. (Gleason v. Clark, 9 Cow., 57; Hopping v. Quin, supra.)

An attorney must be presumed to be familiar with the law and rales regulating the practice in actions which he undertakes to bring. This part of the business of the practice of law pertains especially to the duties of an attorney. It is, substantially, merely clerical or mechanical in its character; and ignorance of the law and rales of practice, on the part of attorneys, or negligence in conforming to them in obtaining judgments, are altogether inexcusable. Such ignorance and negligence subject an attorney to actions for injuries which their clients may sustain.

Another rule prevails for acts done in their relation of counselors, when called upon to give advice upon questions of law. In such cases the liability only arises for gross ignorance or negligence ; and in performing the duties of counsel the attorney is not liable for errors in judgment upon points of new occurrence, or those of nice and doubtful construction. (Godefroy v. Dalton, 6 Bing., 468.)

It was held, in Galpin v. Page (18 Wall. [U. S.], 350), that the law imputes knowledge to an attorney, of defects in legal proceedings for the sale of property taken under his direction. In Kemp v. Burt (4 Barn. & Ad., 424) it was held to be actionable negligence to lay the venue in a wrong county. In Williams v. Gibbs (5 Ad. & El., 208) it was held that to bring an action in a court which had no jurisdiction subjected the attorney to liability.

In Smedes v. Elmendorf (3 Johns., 185) it was held that delay in bringing an action until too late, so that the claim was lost, would render the attorney liable. In Varnum v. Martin (15 Pick. [Mass.,] 440) the attorney was held liable for omitting to insert in a writ the full amount of his client’s claim,- whereby the latter sustained a loss. The cases on this subject are quite fully collected in Wait’s Actions and Defenses (vol. 1, 459) and also in Wait’s Practice (vol. 1, 242).

It is apparent that the judgment in the divorce suit was not opened as a mere matter of f mor to the defendant therein. The court wnuld not have been likely to do that where it appeared that the plaintiff had remarried in good faith, relying upon the judgment; but it was opened because of gross irregiilarities. The justice, at Special Term, said: “ The irregularities in this case are so palpable that they should not be sanctioned, so far as to shut out any actual defense, if a just and meritorious defense exists and can be proved.”

And, in speaking of one of these irregularities, Mr. Justice Daniels, at General Term, said: “ That was an inexcusable irregularity, indicating a gross inattention to the condition of the proceedings on the part of the plaintiff’s attorney.” And again, he said, “ the proceedings in the action abound in such defects and irregularities, that ordinarily they would require the court to set aside the judgment. It was in tenderness to the peculiar position of the plaintiff in this action that the judgment was not altogether set aside.”

In these days, when lawyers .are made with such easy and rapid facility, their unfortunate clients ought' not to be deprived of such protection as the right of action for mal/praetñee can secure.

In respect to the introduction of proof before the referee, of adulteries committed long after the action was commenced, it is a mild form of description to say that the act of the attorneys was a gross irregularity. Upon the question of actionable negligence or ignorance of the attorneys, there was abundance of evidence to require the submission of the case to the jury. There was proof of very heavy expenses incurred by the appellant by reason of such negligence. It is not necessary to consider how much of this can be recovered as a just measure of damages in the case. It is enough that the appellant has shown herself entitled to some measure of damages, in case the jury find that the actionable conduct of the defendants was such as subjected her to any damages.

The complaint ought not to have been dismissed. The judgment entered upon the dismissal must, therefore, be reversed and a new trial ordered, with costs to abide event.

Daniels, J., concurred; Brady, J., concurred in the result.

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


text:
    NELSON H. SALISBURY, Respondent, v. JOHN F. STINSON, Appellant.

      Complaint for goods sold, — Won-payment of claim — need not be aMeged — dem/m'rm\
    A complaint alleging that the plaintiff “sold and delivered to the defendant certain goods of the value, and forwhichthe defendant agreed to pay $164 68,” is sufficient, and it is not necessary to allege that the demand has not heen paid, or that it remains due and unpaid at the time of commencing the action.
    Appeal from an order made at Special Term, overruling as frivolous a demurrer interposed to the complaint.

      Albert Roberts, for the appellant.

      Jerolomam, & Arrowsrmth for the respondent.
   Davis, P. J.:

The count of the complaint demurred to in this case alleges “ that heretofore, and on and between May 12, and May 20, 18Y3, one Edward MacDavis sold and delivered to the above-named defendant certain goods of the value, and for which the defendant agreed to pay tbe sum of $164.68.” It then alleges an assignment of the account to the plaintiff, and judgment is demanded for the above sum, with interest.

The defendant demurred, on the ground that the complaint, as to the first alleged cause of action, does not state facts sufficient to constitute a cause of action.”

The point urged under this demurrer is,' that the count does not allege that the demand has not been paid, or that it remains due and unpaid. The count, however, contains every fact necessary to be proved on the trial, to wit: a sale and delivery of the goods to the defendant, an agreement to pay a stipulated price therefor, and an assignment to plaintiff. Proof of these facts would entitle plaintiff to a verdict without giving affirmative evidence that the price agreed upon had not .been paid. Under the Code this is sufficient. “A plain, concise statement of facts, constituting a cause of action without unnecessary repetition,” is all that is required. (Code, § 142.) This means only the facts necessary to be proved by plaintiff, and upon proof of which he is entitled to judgment. Under the former practice, the complaint would probably have been bad on special demurrer for not alleging a breach, but under the present system, when the breach is presumed on proof of the facts alleged, it is only necessary to aver the facts, although the averment of non-payment, or that the sum remains due and unpaid, in such a case as this, is the usual and more complete form of pleading. Upon the facts stated, the debt is due presently, and no demand is necessary; and there is no necessity to allege that it has become payable by lapse of time. Payment is an affirmative defense, and should be alleged and proved by the defendant.

The order should therefore be affirmed, with costs.

Brady and Daniels, JJ., concurred.

■ Order affirmed, with costs and disbursements.


author: Davis, P. L.:

text:
    LYMAN F. HODGES and others, Respondents, v. THOMAS E. PORTER and others, Appellants.

      Action by nonresident — secv/rity for costs — Gode,% 238 — S. 3., part 3, chap. 10, title 2, § 1.
    In tliis action, brought by the plaintiffs, who were non-residents, to enforce an attachment, issued in another action in which they had recovered judgment, they gave to the sheriff the bond of indemnity required by section 238 of the Code. Held, that they were not thereby relieved from giving security for costs, as required by part 3, chapter 10, title 2, section 1, of the Revised Statutes.
    Appeal from an order denying a motion, that plaintiff be required to file security for costs.
    This action was brought by the plaintiffs, non-residents of this State, to enforce a warrant of attachment, issued by this court, in an action wherein these plaintiffs were plaintiffs and one Yalleau was defendant, under which certain property in the hands of the present defendants, alleged to belong to Yalleau, had been levied upon. The plaintiffs, having recovered a judgment against Yalleau, brought this action under section 238 of the Oode, to obtain the said property, having given to the sheriff the undertaking required by that section.

      Ed/wa/rd Fitoh, for the appellants.

      B. F. Blm/r, for the respondents.
   Davis, P. L.:

The plaintiffs are conceded to be non-residents of this State. They bring this action as attaching creditors of one Yalleau, also a non-resident, and for the purpose of entitling them to sue, they gave to the sheriff the bond required by section 238 of the Oode. That bond was thought, by the court below, to excuse them from giving the security for costs to the defendants under the provisions of the Revised Statutes. (R. S., § 1, title 2, chap. 10, part 3.)

This we think was an error. The bond to the sheriff under section 238 simply indemnifies the sheriff from any damages, costs and expenses he may suffer by reason of this action; but as the defendants, if successful, can recover no judgment against the sheriff or collect their-costs of him, that bond is of no avail to them. Neither the plaintiffs nor their sureties would be liable on it to the defendants for their costs. The defendants allege in their answer that the moneys in their hands do not belong to the person against.whose property the plaintiffs issued their attachment. They do not allege title in themselves, but show a" state of facts which tends to show that they cannot pay the same on the attachment or judgment without being liable to another party, also a non-resident, who has notified them of his title and claim. The court below thought, that it was their duty to interplead that party, and not set up a defense themselves. That party, however, is a non-resident, and perhaps -cannot be brought in by defendants. Still, if the interpleader were practicable, it is not a course necessary to be taken in order to entitle defendants to security for costs. If the other claimants were brought in, the plaintiffs would not thereby be excused from giving the security to them. The defendants, however, have chosen to defend themselves on the title of the other claimant, who is so connected with them as to justify that defense, and they are, therefore, entitled to security for costs, precisely as though they had interposed any other legal defense. The order must be reversed, and the motion below granted, with ten dollars costs of this appeal, besides disbursements. The order should direct plaintiff to file security by a bond, in the penalty of three hundred dollars, within twenty days after service of the order to be entered hereon.

Daniels, J., concurred. Beaut, J., not sitting.

Order reversed, motion below granted, with ten dollars costs and disbursements.


text:
    THE PEOPLE ex rel. ST. JOHN’S COLLEGE, Appellants, v. THE COMMISSIONERS OF TAXES AND ASSESSMENTS OF THE CITY AND COUNTY OF NEW YORK, Respondents.

      Exemption from taxation — § 5, 1 R. 8. (5th ed.), 906 — effect of highway running through lot.

    The exemption from taxation, created by section 5 of 1 Revised Statutes (5th ed.), 906, in favor of the “lots ” upon which the buildings therein specified are situated, is not affected by the fact that such lot is divided by a highway into two portions, one of which is occuxned by college buildings, and the other as a garden for the use of the pupils and teachers and for their recreation and walks, the whole lot being used for precisely the same purposes as before the construction of the highway.

      People ex rel. The Academy of Sacred Hem't v. The Gommiedonec's (6 Hun, 109) followed.
    Certiorari to review assessment of certain real estate of tbe relators.
    Tbe relators own real estate in tbe Twenty-fourth ward of tbe city of New York, amounting to about 103 acres. Tbis real estate is divided by tbe boulevard, a public thoroughfare 100 feet wide, into two separate lots or parcels. Upon one of tbe lots all tbe buildings of tbe relators are situated, and tbis lot tbe respondents marked as exempt from taxation.
    Upon tbe other lot lying beyond tbe boulevard there are no buildings, and tbis lot tbe respondents have assessed for taxation.
    Tbe relators claim that tbe respondents erred in assessing tbis lot, and ask that it may be exempted from taxation, on tbe ground that it was used in connection with and devoted to tbe same purposes as tbe lot upon which tbe buildings were.

      Charles H. Morse, for tbe relator.

      Hugh I. Cole, for tbe respondents.
   Davis, P. J.:

Tbe question involved in tbis case was elaborately discussed by tbis court in The People ex rel. The Academy of the Sacred Heart v. The Commissioners (13 S. C. [6 Hun], 109). Tbe decision in that case was affirmed by the Court of Appeals, as is understood, upon the opinion of Daniels, J., pronounced in this court. There is no substantial difference in the cases, though one is sought to be found in the fact that a public highway, known as the southern boulevard, passes through the premises of the relator, separating the twenty-five and seventy-five one-hundreths acres now assessed, from that portion on which the college buildings stand. But it appears, by the affidavit of the president of the college, which is annexed to the return in this case, “ that the lots, whereon the buildings erected for the' use of the said college are situated, comprise about 103 acres, and are contained in one parcel; that a portion of said lots is occupied by the buildings of said college, and the remaining portions of said lots are used, respectively, as a vegetable garden and for farming purposes for the use of the pupils, teachers and officers of the college, as a cemetery, and for the recreation and walks of the pupils and other persons connected with the college, who number about 300 persons; that the whole land, so used as aforesaid, is necessary for the use and sufficiency and applicability of the buildings thereon for the purposes of the college; and that they are used, owned and applied exclusively in the manner and for the purposes aforesaid; and that no part of the said lots are leased or otherwise made a source of profit to the corporation, but all are in the occupancy of the said corporation for the purposes of said college.” This statement is in nowise controverted by the respondents, except so far as that is supposed to be done by showing, by the return and by the map annexed thereto, that the public highway above mentioned crosses the property of the college in such a manner as to leave on the west side the portion on which the buildings are situated, and on the east side, the part on which are the cemetery and other grounds, with out-buildings; but the whole is accurately designated on the map as St. John’s college grounds.” We think that the accident that a public highway has been constructed over the grounds does not destroy or affect their identity as “ the lot, ” within the meaning of the exemption statute, bn which the buildings are situated. (1 R. S., 905 [5th ed.].) The connection and unity of the whole parcel for the uses of the college remain, notwithstanding the public easement. The intersection of public highways are not in themselves such a severance as of legal necessity divides tbe grounds of tbe college into exempt and non-exempt parcels. That division must depend upon other facts which control its effect. In this case, facts are shown, without- contradiction, which clearly establish that “ the lot ” of the college, for all purposes of use, -and consequently of exemption from taxation, remains precisely as before the construction of the boulevard. A very apt case is cited from the Supreme Court of New Jersey. In that State, the statute defines the exemption as the lands whereupon such buildings are erected,” which is substantially the language of our statute. In The State v. Ross (4 Zabriskie, 501) the court held that the construction was not changed by the fact that the buildings in question were upon lots inclosed by substantial fences, and some of them separated by those fences, and others by a lane and public street, from the other college grounds.”

The relator is entitled to judgment exempting the whole of the college grounds from taxation, and directing the same to be struck from the assessment roll.

Ordered accordingly.

Brady and Daniels, JJ., concurred.