author: Bockes, J.:

text:
    PARLEY JOHNSON, Plaintiff and Respondent, v. BENAJAH COMSTOCK, Defendant and Appellant.

      Search warrant — grounds on which it can issue —when void on its face — Good faith — evidence as to — Damages ■— what not excessive.

    The defendant having had certain wool stolen from him, and suspecting the plaintiff and another of being the thieves, applied to a magistrate for a search warrant, his affidavit stating that the wool had been stolen, “ and that he has good reason to suspect the said wool was so feloniously stolen and carried away by Parley Johnson and Richard P. Johnson ”: a warrant was issued directing a search of “the barn, houses or store of Parley Johnson and Richard P. Johnson, of Oaksville.” Under this warrant the plaintiff’s house, wood shed, store and grist mill were searched, without finding the property. An action was brought by the plaintiff', to recover damages for an unauthorized search, against the defendant on the ground that he had directed and controlled the search, Held, that the warrant was void on its face as being too uncertain and indefinite.
    That the affidavit of defendant was not sufficient to give the justice jurisdiction to issue a warrant.

      Held, further, that, as bearing upon the question of defendant’s good faith in causing the search to be made, it was competent to show that he entertained ill will and malice towards the plaintiff; that he had so expressed himself, and made threats against him during a series of years.

      Held, further, that in such a case a verdict of §1,000 damages would not be set aside as excessive,
    Appeal by defendant from an order denying a motion for a new trial made on tlie minutes of the court; also a motion for a new trial on a case and exceptions, ordered to be heard in the first instance at General Term,
    The action was trespass for an alleged illegal entry upon the plaintiff Js premises, and an unauthorized search of his dwelling-house and other buildings for stolen property. It was made to appear on the trial that the defendant had a quantity of wool taken feloniously from his possession; whereupon he made complaint before a justice of the peace, and obtained a search warrant, which directed a search of “the barn, houses or store of Parley Johnson and Richard P. Johnson, of Oaksville,” in the town of Otsego. The affidavit on which the warrant issued stated that the wool was taken from his (defendant’s) possession, as he had a good reason to suspect, by Parley Johnson and Richard P. Johnson, but omitted to give any ground for such suspicion, and also omitted to set forth any fact or circumstance of suspicion, or even generally any suspicion, that the property was concealed in any particular house or place. The following is a copy of the affidavit:
    Otsego County, ss. — Benajah Comstock, aforesaid county, being duly sworn, deposes and says that, on the 30th day of August, 1871, he was possessed often or twelve bundles of wool, tied in cloths for carding; said bundles worth about seventy-five dollars, and that the same was feloniously stolen and carried away from his carding shop in the town . of Otsego, in said county, and that he has good reason to suspect the said wool was so felon?,oiisly stolen and carried away by Parley Johnson and Richard P. Johnson. And deponent prays a search warrant may issue to search the premises, barns, houses and store of said Parley Johnson and Richard P. Johnson.
    BENAJAH COMSTOCK.
    Subscribed and sworn to before me, )

    August 31, 1871. £
    Wash. Wilson,

      Justice of the Peace.

      ' The defendant delivered the warrant to the officer, who, with the aid of an assistant, entered upon the plaintiff’s premises and searched his dwelling-house, where he resided with his family; also his wood-shed, store and grist-mill, without, however, finding any of the stolen property. Evidence was given tending to show that the defendant directed or controlled the search; also, it was proved that the parties had been unfriendly for many years preceding. The judge on the trial ruled (1) that, as matter of law, there was probable cause for the defendant to obtain the search warrant; (2) that the warrant was fair on its face, and was a protection to the officer who executed it; but that the proof on which it issued was insufficient to authorize the justice to issue it; hence it afforded no protection to any one, other than the officer who should take the direction of its execution; therefore (3), that, in case the defendant, after the warrant was issued, assumed to control its execution, then he would be liable as a trespasser; and, whether or not he did so assume to control or direct its execution, the judge left to the jury to determine as a question of fact. The jury found for the plaintiff, and awarded $1,000 as damages. Other rulings of the judge besides those above mentioned are considered in the opinion.

      J. P. Lynes, for the plaintiff.
    The complaint of the defendant before the justice was not sufficient to give the justice jurisdiction to issue the search warrant. (1 Colby’s Crnn. Law, 93, 94; 1 Chitty’s Grim. Law, 65, 66; 2 Hale, 113, 150; 2 Wilson, 283, 291; 1 Conn., 40; 11 State Trials, 321; 5 Iredell, 45; art. 4 Amendment Const. U. S.; Bill of Rights; 1 R. S. 376, § 11.) For propel’ form of complaint, see 2 Colby’s Cr. L., 229. (SJdnion v. Kdly, 18 N. Y., 356; Laws 1866, oh. 95; 1 Colby’s Cr. L., 93.) The warrant was void upon its face for the reason that it did not particularly describe the place to be searched or the things to be seized as required by the constitution of the United States, the bill of rights of the State of New York, or the statutes in relation to issuing search warrants, in each of which the word place is used, not places, and house, not houses. (.People v. Holcomb, 3 Parker Cr. R., 656.

      E. Countryman, for the defendant.
   Bockes, J.:

The learned judge on the trial ruled that the search warrant was apparently valid, being fair on its face, and therefore afforded protection to the officer executing it, but that it was void in law for the reason that it was issued by the magistrate without proof, or ou iusufficient proof; therefore that the defendant was hable for its execution by the officer in case he directed and controlled the action of the latter under it. Pie might have gone further and ruled, as we think he should have ruled, that the search warrant was void on its face, and therefore afforded protection to no one in its execution. Certainly it did not authorize a search of the wood shed and grist mill, for neither was mentioned therein; nor did it in terms authorize a search of the plaintiff’s barn, houses, aud store, but only “the barn, houses or store of Parley Johnson and Richard P. Johnson”; nor had these places more than a very general and indefinite description, whereas the constitution and law" require a particular description of the house or place to be searched, and besides the direction was in the alternative, bam, houses or store. Several of these points of objection to the warrant are considered in Sandford v. Nichols (13 Mass., 286), where the warrant was held informal and void. The constitution (U. S. Constitution, Art. IV.) requires that the warrant shall particularly describe the place to be searched; so too the statute (3 R. S., sixth ed., 1045,) provides that the place shall be particularly designated in the warrant. Persons may be arrested for crimes on informal proofs in some cases, or even without process. Such are the cases cited us by the appellant’s counsel. But the dwellings and premises of citizens are under the highest protection against search, and may not be invaded with impunity save on full compliance with all constitutional and statutory requirements. We are of the opinion that the search warrant in this case was void on its face. The ruling of the learned judge was therefore more favorable to the defendant than he had a right to claim. It is not intended here to hold that the process was not also issued without jurisdiction, as was ruled at the Circuit. We deem it unnecessary here to express our opinion on that point.

Being void on its face, the warrant afforded no protection to those executing it or directing its execution, This being so, the only question for the jury was whether the defendant took upon himself the direction of the execution of the illegal process: and if he did, then as bearing on the question of damages, his good faith in so doing. It is urged that the evidence offered of what occurred on the occasion of the application for the warrant was proper to show good faith. All the facts and circumstances that he there testified to probably were proper in that view. But the defendant could go no further than this. What he there said, not sworn to by him, was irrelevant and improper. It seems that the judge allowed in evidence all he there swore to in support of his application. The judge inquired of (the justice) the witness whether there was anything sworn to except what was contained m the affidavits. He replied there was not. The affidavit was received in evidence. But .it seems also that afterwards, during the trial, the defendant was allowed to give in evidence all that occurred before the magistrate ou the application for the warrant, in detail; also all the facts and circumstances on which he grounded his suspicions, both as to whom ho suspected of the larceny and where the property was concealed; and the judge ultimately, on submitting the case to the jury, gave.this evidence emphasis, by holding and deciding as matter of law that there ivas probable cause for the defendant to obtain the warrant. Thus it seems that in point of fact, nothing ivas excluded of what occurred before the justice on the application for the warrant, and the evidence of what did occur was made as effectual as it could be by the decision of the court, that the defendant had probable cause to support his application. The ruling complained of was, therefore, wholly innoxious, and the case was brought to the true question as submitted by the com-t, whether the defendant participated in or directed the execution of the illegal process; and, on- the subject of good faith in his action, the case was before the jury in its most favorable aspect for the defendant. If the defendant directed the execution of the void process, he was liable in trespass for the ' illegal search so directed; and thus the subject of his good faith became a matter of consideration. On this branch of the case it does not appear that any evidence was improperly received or rejected. It was competent to show that the defendant entertained ill will and malice toward the plaintiff; that he had so expressed himself, and made threats, and this during a series of years; and that the parties had been litigants. ’ ■ The offers in general terms ’ by the defendant to show that the plaintiff had been m the habit of annoying him, by calling him names in order to irritate him, and had threatened him, were too vague and indefinite to be of value; besides, it was irrelevant and improper in itself. On the whole, there seems to be no rulings in the case against the defendant to his injury, or of which he may properly complain.

It is true, as a general proposition, that a party is entitled to have his case tried upon an entirely correct theory of law; but when it appears well determined on an application of sound principles, erroneous rulings, which do not and cannot affect the merits, constitute no ground of error.

It is quite manifest, I think, that a case was made for the jury on the evidence. There was proof tending to show that the defendant directed the execution of the void process. He applied for the warrant, took it from the justice, and delivered it to the •officer. This was some evidence on the point, if not indeed quite sufficient to charge him. But this was not all; it appears that the ■officer, at the time of executing the warrant, was in communication with the defendant, and after conversing with him, returned and continued the search. His action and conduct indicated-a -direction and control of the process, and the jury were authorized so to find.

The damages cannot be said to be excessive. A forcible entry and search of one’s dwelling, from cellar to garret, as in this case, also other buildings, for stolen property, on a charge of larceny against the occupant and owner, is a high-handed act, and must be justified by circumstances of strong suspicion, backed by legal process; otherwise it is a case of great and aggravated wrong. For aught that appears, the plaintiff held a respectable position among his neighbors; he had a family about him; the search was-made under a degrading charge against him, and it was conducted with such particularity as was well calculated to humiliate. The case was a proper one for exemplary damages, in case the jury were of the opinion that the defendant acted maliciously. So the judge properly charged. In the course of the charge he said that if the defendant directed the proceeding merely to gratify his malice, and made use of circumstances as a mere pretense to injure the plaintiff, then it was a case that would “require” an allowance of exemplary damages. This expression should be considered in connection with the entire charge, and its meaning obtained from an entire reading of it. Thus read and considered it will be seen that all that was intended by way of instruction was this: that if the jury found that the conduct of the defendant in directing the search of the plaintiff’s dwelling and premises was malicious then they would be authorized to award exemplary damages, and that the allowance of such damages was for them in the exercise of a fair discretion. Such is the purport of the charge. In this there was no error. The jury were also instructed that in awarding exemplary damages they might make allowance to the plaintiff for being compelled to come into court for redress. This, although excepted to, is not mentioned in the appellant’s, brief and points. Such instruction is sustained by the decision in Welch v. Durand (36 Conn., 182). After a careful examination of the case we are of the opinion that it discloses no error calling for a new trial.

The order appealed from must be affirmed; the motion for a new trial must be deified, and the plaintiff is entitled to judgment on the verdict with costs.

Learned, P. J„ and Osborn, J., concurred.

Motion for new trial denied and judgment ordered for plaintiff on verdict with costs.


source: Caselaw Access Project

author: Bocees, J.:

license: Public Domain

text:
    CHARLES R. WESTBROOK, Plaintiff, v. WILLIAM GLEASON and others, Defendants.

      Mortgage given by vendor, upon land in possession of vendees under contract of sale — lien of — how divested.

    On June 13th, 1868, McKoon executed and delivered to one S. a mortgage upon certain premises, 55 acres of which were then in the possession and occupation of one Jones, under a contract of sale made by their respective predecessors in title and interest, which mortgage was not recorded until January 8th, 1S69. On October 27, 1868, S. assigned the mortgage to plaintiff, by whom it was recorded January 8th, 1869. October 1st, 1868, McKoon conveyed the 55 acres to Jones, who had no notice of the mortgage to S., and took back a mortgage for §500, to secure a portion of the purchase price, the deed and mortgage being recorded December 1st, 1868. December 2d, Mc-Koon assigned his mortgage to Gleason, who took it in good faith, believing it to be a first lien, and the assignment was by him, on March 7th, 1870, duly recorded. In 1870, Gleason foreclosed his mortgage and purchased the 55 acres upon the sale.
    In an action brought to foreclose the plaintiff’s mortgage, held, that the plaintiff, by his mortgage, acquired a lien upon the 55 acres to the extent of the amount of the purchase price then unpaid upon the contract of sale, and for no more.
    That, upon the execution of the §500 mortgage by Jones, the lien continued to that extent
    That the foreclosure of this mortgage and the purchase of the property by Gleason was in substance a payment of it by Jones, and that, as neither Jones nor ■ Gleason had any knowledge of plaintiff’s mortgage, the lien thereof upon the said 55 acres was thereby divested.
    Appeal from a, judgment entered upon the report of a referee.
    This action -was brought to foreclose a mortgage made by the defendant McKoon to M. Schoonmaker, and by the latter assigned to the plaintiff, which mortgage bore date June 13th, 1868, and was given to secure the payment of $1,500 and interest. At the time of giving the mortgage, one Samuel Jones ivas in the actual possession of fifty-five acres of the mortgaged premises, under a contract of purchase made between their predecessors in title and interest respectively; and improvements had been made thereon by Jones and his predecessor holding thereunder. In performance of this contract McKoon, by deed dated October 1st, 1868, conveyed to Jones the fifty-five acres, held and occupied by the latter under the contract, and Jones gave back to McKoon a mortgage covering the promises conveyed, of the same date, to secure $500 of the purchase price which remained unpaid. The deed to Jones and the mortgage back to McKoon were recorded in the proper clerk’s office December 1st, 1868, and on the next day, December 2d, 1868, McKoon assigned the bond and mortgage to the defendant, William Gleason. The assignment to-Gleason remained unrecorded until March 7th, 1870. The plaintiff’s mortgage was recorded January 8th, 1869', having been, assigned to him by Schoonmaker, October’ 27th, 1868. Jones took his deed from McKoon in fulfillment of the contract, and gave back the mortgage in good faith, believing that he was-acquiring an unincumbered title to the fifty-five acres conveyed to-him by McKoon; and Gleason purchased the mortgage from McKoon, and took the assignment of it also in good faith, believing it to be a first lien upon the premises covered by it, after having searched the records and finding no incumbrance upon them.
    In 1870 Gleason foreclosed the mortgage made by Jones of the fifty-five acres; purchased the premises on the foreclosure sale; took the referee’s deed thereof; entered into possession, and after-wards contracted to sell the same to one Lapaugh. The latter then went into possession, and the contract to sell remained outstanding when 'this action was tried and decided at Special Term, with Lapaugh’s assignee in possession thereunder.
    October 1st, 1868, McKoon conveyed to Catharine Siebert one hundred and ten acres, being also a part of the mortgaged premises covered by the plaintiff’s mortgage; the deed to Siebert was recorded December 9, 1868.
    The appellant, Brown, claimed under the title to Siebert; and defended on the ground that the premises held by him, described in the deed to Siebert, had been released and discharged from the lien of the plaintiff’s mortgage. Gleason defended, setting up the facts above stated as to the fifty-five acres conveyed to Jones.
    Two other parties defended; but their defenses need not be noticed, as they did not appeal from the judgment. The court at Special Term, found that the sum of $1,310 remained due and unpaid on the plaintiff’s mortgage; held, that the mortgage was a lien on Gleason’s fifty-five acres, but that Gleason’s mortgage was entitled to priority of payment; that the plaintiff was not bound •by Gleason’s foreclosure, because not made a party to it; and further, that Brown’s defense was unsustained.
    J udgment having been entered, the plaintiff appealed from so much thereof as related to Gleason’s rights; and Brown appealed from the entire judgment.
    Such other facts as are not above stated, and which are important to be considered on the appeals, are noted in the following opinion:

      M. Schoonmaker, for the plaintiff.

      Wm. Gleason, .in person.

      J. F. Braclner, for defendant Brown.
   Bocees, J.:

The appeal affecting the lights of Mr. Gleason will be first considered.

The plaintiff’s mortgage bears date June 13th, 1868; but was not recorded in the proper clerk’s office until January 8th, 1869. At the time this mortgage was given, one Samuel Jones was in possession of the fifty-six acres now claimed by the defendant, Gleason, under a contract of purchase. The relation between McKoon, the mortgagor, and Jones, was that of vendor and vendee, or purchaser, with actual, open and notorious possession by Jones, the vendee, under the contract. Thus, at this time McKoon had the legal title, subject to Jones’ rights under the contract of purchase and sale. The lien of the mortgage was, therefore, only' to the extent of the unpaid purchase money; and it would lose its lien, or in other words, the lien would be defeated by the payment of the unpaid purchase money by Jones, if paid in good faith without notice of the mortgage lien. (Moyer v. Hinman, 13 N. Y., 180; Trustees, etc. v. Wheeler, 61 N. Y., 88.)

Nor would the recording of the mortgage given by McKoon be notice to J ones of the lien. (Cases above cited, also Young v. Guy, 5 W. D., 399.) Gleason insists that the purchase money remaining due and unpaid on the contract to purchase, was in legal effect paid by or through Jones in good faith, and without notice of the plaintiff’s mortgage, hence that the lien was discharged. It seems that on the 1st of October, 1868, and in performance of the contract, McKoon holding an apparent unincumbered title, conveyed the premises to Jones, and the latter gave back to McKoon his bond with, a mortgage covering the premises conveyed, to secure the payment of the purchase money. This deed to Jones and his mortgage back to McKoon were duly recorded in the clerk’s office December 1, 1868. Now if Jones had then paid up the contract price by him agreed to be paid, instead of giving a mortgage therefor, he would have been protected in his title against the lien of the plaintiff’s mortgage, the payment being made in ignorance of the latter mortgage. But instead of making payment Jones gave his mortgage for $500, the remaining unpaid purchase money, and took a deed. The giving of the mortgage was not payment, and the plaintiff’s mortgage therefore retained its lien on the premises to the extent of the $500, which lien was, however, subject to be defeated by payment of the Jones mortgage, now representing the unpaid purchase money; so be it that payment thereof should be made in good faith, without notice of the prior mortgage. Then the question is, was the Jones mortgage so paid and satisfied before this action was commenced? It is found that Jones took his deed from McKoon in fulfillment of the contract under which he held and occupied the premises, and gave back the mortgage, all in good faith, believing that he acquired an unincumbered title thereto; and further that Gleason purchased the mortgage from McKoon and took the assignment of it also in good faith, believing it to be a first lien upon the premises. Nor did the records at this time disclose any lien or incumbrance upon the premises prior to the Jones mortgage, if that fact be of any importance, in view of the rule of law that the recording of the plaintiff’s mortgage would not have been notice to the vendee in possession at the time of the giving of the mortgage, or to any one claiming under him. So, too, in so far as can be determined from the record before the court, the foreclosure of the Jones mortgage by Gleason, his purchase at the mortgage sale, acceptance of the referee’s deed under it, and subsequent contract of sale of the premises to Lapaugh were all in good faith, without notice either to Jones or Gleason of the plaintiff’s mortgage. By such, foreclosure proceedings the Jones mortgage was paid and satisfied in so far as it had effect as a lieh on the fifty-five acres. The foreclosure with confirmation of thfe sale and deed to Gleason operated as compulsory payment by-Jones. In legal effect it was as much payment, considered with reference to the premises covered by it, as if payment had been voluntarily made by Jones, the mortgagor. The law by these-proceedings gave or appropriated Jones’ property in payment of the debt.

It is suggested that notice to McKoon, Gleason’s assignor, was notice to the latter. But that does not reach the difficulty. Notice to Jones before payment by him in good faith was requisite, in order to put the plaintiff in a position to gainsay such payment. So if, instead of a foreclosure, Jones being called on for payment by Gleason, had surrendered and quit-claimed the premises to Gleason, and the latter had in consideration surrendered and satisfied the mortgage, all in good faith, without notice of the plaintiff’s lien, Avould not that have been in laAv payment and satisfaction of the mortgage ? Did not the foreclosure and deed to Gleason accomplish the same result ? If so, then Avhy does not Gleason take Jones' place under his deed from McKoon, with entire payment of the contract price, leaving nothing on Avhich the lien of the plaintiff’s mortgage could now attach ? We are of the opinion that the foreclosure proceedings and deed to Gleason, under the circumstances of this case, operated as payment in laAv of the Jones mortgage, and such payment having become effectual without actual notice to either Jones or Gleason of the plaintiff’s mortgage, the lien thereof Avas lost or divested.

It follows, therefore, that the judgment given m this case is more favorable to the plaintiff than he can justly claim. But the defendant, Gleason, has not appealed, and therefore must be deemed to have accepted it as rendered.

It is not intended here to intimate that the judgment awarded may not be vindicated, in so far as it affects Gleason’s rights, on ihe theory adopted by the court at Special Term. But if the conclusion above reached be sound, the case need not be further examined on the plaintiff's appeal.

The appeal by Brown seems entirely groundless in vie>v of the issues raised by bis answer and the findings of the. eoúrt. He does not aver in his answer, nor is it found as a fact by the court, that Siebert, under whom he claims, was a bona fide grantee without notice of the plaintiff’s mortgage. Such finding was necessary to enable him to invoke protection in his title from the registry laws. The defense that he did interpose, to wit: that the premises claimed by him were released and discharged from the lien of the plaintiff’s mortgage, is not sustained by the findings of the court; and we have nothing but the findings before us from which to determine the facts. The evidence given on the trial is not contained in the case.

The portion of the judgment appealed from by the plaintiff must be affirmed, with costs of the appeal to the defendant Gleason against the appellant; and the plaintiff is entitled to judgment of affirmance on Brown’s appeal, with costs of appeal against him.

Learned, P. J., and Osborn, J., concurred.

Ordered accordingly-.


author: Bocees, J. :

text:
    FREDERICK VEDDER, Appellant, v. CORNELIUS VAN BUREN and others, Respondents.

      Action for conversion — arising from a wrongful sale of property — datnages when property is bid in by owner — Appeal to County Court — token grounds thereof sufficiently specified in notice of appeal.

    In an action of trespass, brought in the Justices’ Court, to recover damages for a -wrongful sale of certain personal property belonging to plaintiff, he testified that it was worth $12. Evidence offered by defendant to show that, upon the sale, the property was bid in by or for the benefit of the plaintiff for $7.87, was excluded.

      Held, that this was error; that, as the property was bid in by the plaintiff, the damages were limited to the amount of the bid.
    In the notice of appeal to the County Court, one ground specified was, that “ the justice rejected proper evidence offered by the appellant.”

      Held, that this was sufficiently specific to authorize an examination of the question as to the rejection of the evidence above alluded to.
    Appeal from a judgment of the County Court of Montgomery county, reversing a judgment rendered in the Justices’ Court. The action was brought to recover damages occasioned by the sale of certain personal property of plaintiff’s by the collector of the village of Port Jackson, acting under the authority of the defendants, the trustees of the village.

      8. W. Jackson, for the appellant.

      W. L. Van Denbergk, for the respondents.
   Bocees, J. :

The justice was in error in excluding the evidence offered that the property was bid in on the sale by the plaintiff himself, or for his benefit. The plaintiff had already proved that the value of the property was $12; and it seems that the justice adopted this estimate as the measure of damages, for he rendered judgment for $12 damages. If bid in by the plaintiff, or for his benefit, the true rule of damages would be the amount bid and paid. (Baker v. Freeman, 9 Wend., 36; Ford v. Williams, 24 N. Y., 359, 366; Butler v. Miller, 1 Denio, 407, 413.) This evidence should have been admitted, and so soon as admitted, the rule of damages would be changed from what would otherwise be the rule. It was proved, too, that the property was bid off and sold for $7.87. If the rejected evidence had been admitted, the damages would have been $7.87 only; and the judgment should then have been for no more. It is quite manifest that the ruling was put on the ground that the plaintiff was entitled to the full value of the property as damages, even though he, in fact, bought in the property himself at a sum less than its value.

It is urged that the notice of appeal is not sufficiently specific i > raise this question. The Code (§ 353) requires the grounds upon -which the appeal is founded to be stated in the notice of appeal. There are many grounds of appeal stated in the notice in this case, some of which are unquestionably sufficiently specific; and it has been held that when the notice well states a single ground on which the appeal is founded, it confers jurisdiction on the county court to examine the whole case as set forth in the justice’s return, to see if any error has been committed for which the judgment ought to be reversed. (Forman v. Forman, 17 How., 255 ; per contra, seo cases there cited.) But without putting the decision here on this ground, or asserting its soundness, we are of the opinion that the specification in the notice of appeal that “ the justice rejected proper evidence offered by the appellant,” must be held to be sufficiently specific to authorize an examination of the question as to the rejection of the evidence above aluded to. This, perhaps, might be doubtful under the decision in Deuchars v. Wheaton (16 How., 471); but this case was criticised if not overruled in Saunders v. Keough (27 How., 477); and since the decision in Sperry v. Reynolds (65 N. Y., 179), can no longer be deemed authoritative. According to the riding in the last case cited, the ground of error was sufficiently stated in the notice of appeal in this case to raise the question above considered. The rule here laid down is also in accordance Avith the vícavs of Mr. Wait, in his “ LaAV and Practice.” (Vol. 2, pp. 773-4.) The reversal of the decision of the justice must be affirmed for the reason above stated. It is unnecessary to examine any other alleged grounds of error.

The judgment of the county court must be affirmed Avith costs..

Learned, P. J., and Osborn, J., concurred.

Judgment affirmed with costs.


author: Hookes, J. :

text:
    HENRY C. COVELL, Respondent, v. ERASTUS P. HART and JEREMIAH McGUIRE, Appellants.

      Attorneys — liability of, for expenses incurred in preparing case for trial— power of, to bind client by contract.

    The defendants, a firm of attorneys, being engaged in preparing for trial a case which involved the settlement of an extended partnership, employed the plaintiff to examine the partnership books, it being necessary to do this in order to prepare the case for trial. Upon the trial of an action brought by him against the firm, to recover the value of his services, the defendants requested the court ' to charge, that if the defendants employed (he plaintiff to perforin the services under authority from their client, and the p.aintiff had knowledge that the employment was for their client, then the plaintiff could not recover. Held, that the court should have granted the request, and erred in refusing’»} to ■•charge

      Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon a case and exceptions.
    The action was brought to recover the value of services rendered by the plaintiff in examining a set of books, in pursuance of directions received from the defendants, a firm of attorneys, and for which he sought to hold them liable in this action.

      E. F. Babcock, for the appellants.

      Turner, Dexter & Van Dimer, for the respondent.
   Hookes, J. :

The defendants were attorneys and counsellors of this court, and formed a professional partnership the second time in November, 1873. Their former partnership, which terminated several years previously, need not be here noticed. During several years prior to November, 1873, the defendant, Hart, had in charge, for one of the parties, an action involving the settlement of an extinct partnership. The management of this action remained with Hart after his professional connection with McGuire in 1873. In order to prepare the case for trial, it became necessary to have an examination of the partnership books. The plaintiff, who was an experienced bookkeeper, was employed, as he alleged, by the defendants, then partners, to perform this service; and he was engaged in such service for a considerable timo. The action is brought to recover for those services.

The defendants denied the alleged employment, and especially controverted any joint liability; and also insisted that the services were performed for their client as principal debtor; hence, that they were not, nor was either of them, liable in this action. The questions raised on this appeal are presented by the various exceptions to the rulings of the learned judge at the trial, on submitting the case to the jury. Of those exceptions, but two need be here considered.

It must be assumed that the jury found a joint employment by the defendants of the plaintiff to perform the services. Still, in this view of the case, it was an employment by known agents for services to be performed for the benefit of a principal, whose name and relation to the subject-matter of the service were known to the plaintiff at the time of the employment. It is laid down as a general rule that, where, a person is known to act as a mere agent, and the principal is known, and there is no express agreement by the agent for a personal liability, and there are no circumstances from which it may properly be inferred that the credit is given to him, the agent is not personally liable, though he be the person who makes the contract. So, an agent is not liable when he keeps within the limits of his authority, and discloses the name of his principal at the time of making the contract. This principle of law is applicable to the case of attorney and client. (Judson v. Gray, 11 N. Y., 408, 411, and cases there cited.) The rule is there quoted with approval, that, in conducting the suit, so far as third persons are concerned, the attorney is simply the agent of his client.

This rule may not be applicable to services performed for an attorney by a public officer, who is bound by law to act in the matter entrusted to him by an attorney. (Judson v. Gray, [supra]; Campbell v. Cothran, 56 N. Y., 279.) The case in hand is one however of voluntary engagement by the plaintiff, hence the ordinary rule applicable to principal and agent obtains. The services contracted for were not such as pertained to the duties of an attorney in his professional character. Yet they were such as he might cause to be performed for the benefit of his client. He might bind his client to any service necessary to the preparation of the ease for trial. Here, however, this latter point is of little importance, as enough appeared in the evidence to warrant an approval of the engagement by the client. In this case then the plaintiff' could not recover against the defendants, inasmuch as the former knew of their agency and that they were acting for a well known principal, unless they contracted for themselves and gave the plaintiff their personal credit. This could only be established against the defendants under the undisputed facts in the case, by an express promise on their part to be themselves personally liable, on proof of facts and circumstances equivalent to an express promise by them. FFe are now brought to the consideration of a request for an instruction to the jury on this branch of the case, which instruction was refused. The learned judge was requested to charge the jury in substance and effect, that if the defendants employed the plaintiff to perform the services under authority from their client, and the plaintiff had knowledge that the employment ivas for their client, then the plaintiff could not recover against them, but must take his remedy against his client. This is not the exact language of the request, but embodies its spirit and fair meaning. An employment for their client must be understood to mean an employment on his behalf and on his ■ responsibility. If such was the employment it was not on the personal liability of the defendants. The defendants were entitled to have this instruction given as requested, as they were also entitled to the instruction asked for, that if the defendants employed the plaintiff for and on behalf of their client to do the work as in .their judgment necessary in their client’s suit, then the client was liable to the plaintiff therefor, although the plaintiff when he began the work did not know who the client was or that the work was for him. The proposition was .sound in law; and, under the evidence in this case, being contradictory on almost every point connected with the subject of the plaintiff’s employment, it was not so foreign to the question to be considered by the jury as to be absolutely immaterial. It is true these instructions were refused save as the subject had been already charged upon. But on looking into the general charge it will be seen that the ideas intended to be put forth in the request were not specifically advanced.

For the reasons above suggested the judgment and order appealed from must be reversed.

Learned, P. J., and Osborn, J., concurred.

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


text:
    WILLIAM M. SALTSMAN, Respondent, v. CYRUS SHULTS, as Treasurer, etc., Appellant.

      Joint stock association — vjhen its existence must be proved under general- (denial— cannot be proved by parol evidence — right of a member to maintain an action against it.

    A member of a joint stock association may maintain an action against suck association, to recover damages occasioned by it in maintaining a private nuisance.
    This action was brought against the treasurer of an association, the complaint alleging that the defendant was “ the treasurer of a joint stock company or association known as the Slate Hill Cheese Factory, transacting business in the town of Palatine, consisting of more than seven shareholders.” The answer was a general denial. Held, that in the absence of an averment in the complaint that the association was a corporation created by or under any statute of this State, the plaintiff was bound to prove the existence of such associaation by competent evidence, and that the articles of association being in writing, its existence could not be proved by parol evidence.
    Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon a case and exceptions. The action was brought to recover damages for the pollution by the defendant of a stream running through the plaintiff’s farm. The complaint alleged that the defendant was the treasurer of a joint stock company or association, known as the Slate Hill Cheese Factory, transacting business in the town of Palatine, consisting of more-than seven shareholders. The answer contained a general denial, it also alleged that the acts complained of were by plaintiff’s leave and license, and that the plaintiff was a member and shareholder of the association at the time of and following the erection of the factory causing the pollution.
    .7?, Dewey, for the appellant.

      D. 8. Morrel for the respondent.
   Bocees, J.:

The objection to a recovery in this case, on the ground that the plaintiff was a member of the joint stock association against which the action was brought, cannot be sustained; that is, on the assumption that the articles of association were in the usual form and contain no special provision on which the objection may be predicated. This point was very fully considered in Westcott v. Fargo (61 N. Y., 542), where it was decided that an action might be maintained by a 'member against a joint stock association in the manner prescribed by statute, through its president or treasurer. In the case cited, the action ivas based on the negligence of the association. In the case in hand the action is for causing and maintaining a private nuisance. Dwight, C., in Westcott v. Fargo, collates the various provisions of the statute relating to the subject, and shows very satisfactorily that the right of action by the plaintiff, a member of the association, is as much against a legal entity, as if he had no interest in its affiiirs. In case of recovery he might seek satisfaction of his judgment by execution against the property of the association; and failing in this, he could have such further remedy against the members, being himself one, as shoidd be equitable and just. The objection to the right of the plaintiff to maintain the action, because of his membership in the association, seems to be fully answered by the decision in Westcott v. Fargo.

But a serious question of evidence remains to be examined. The action is against the association in the name of its treasurer; a form of action authorized by the statute. The averment in the complaint is, that he (Shults) “ is the treasurer of a joint stock company or association known as the Slate Hill Cheese Factory,’’ consisting of more than seven shareholders. The answer is: first, á general denial of every allegation of the complaint; second, that the acts complained of were by the plaintiff's leave anil license; and third, that the plaintiff was a member and shareholder of the association at the time, and following the erection of the factory. Against the general denial the plaintiff was bound to establish his action as alleged in the complaint by adequate and competent proof. As regards this question, the second and third defenses may be deemed out of the case; and it must stand as if the general denial alone ivere interposed. On the trial, 1 ho plaintiff ivas allowed, against objection, to prove the existence of the association, and that Shults was treasurer, by parol. The defendant objected to the proof, offering to show that the association was formed, by written articles. Notwithstanding it had its existence under written articles, the. court overruled the objection, and admitted the existence of the association to be established by parol.

Thereupon the witness testified that the Slate Hill Cheese Factory was an association consisting of over seven share-holder’s, . and that Shults was its treasurer. The objection to such parol evidence and the exception to its admission was in no way answered or waived during the trial, and the question remains in full force whether the admission of such evidence was error. If the facts established by this evidence were necessary to be proved in order to make out the plaintiff's case, unquestionably its admission was error. It was an inexcusable admission of'secondary evidence. The written articles of association were the highest and best evidence, and they were in existence and for anything that appeared could readily be produced. Therefore if this evidence was necessary to establish the plaintiffs right of action, the ruling presents a case of substantial error. Undoubtedly this evidence was deemed to be essential at the trial, but it is now answered on the appeal, that for all the purposes of the action the association was a corporation, and that its existence was not put in issue by the general denial contained in the answer. The statute is that in all suits brought by or against a corporation created by or under any statute of this Stale it shall not be necessary to prove on the trial of the cause the existence of such corporation, unless the defendant shall have alleged in the answer in the action that the plaintiffs or defendants are not a corporation. (3 It. S., [6th ed.] page 740, § 3.) This statute remains in force since the Code, as has been frequently decided. But was this association, admitting it to be a corporation, in so far as there exists a right to sue it in the name of its treasurer, “ created by or under any statute of this State ? That fact nowhere appeared. There was no allegation to that effect in the complaint, nor indeed .any direct allegation that the Slate Hill Cheese Factory was an association, if indeed that averment would have helped the case if made. That the Slate Hill Cheese Factory was a joint stock company or association was stated only inferentially, not directly as an alleged fact.

The association may or may not have been created under or pursuant to a statute of this State. Had there been'an averment that it was so created, or had an existence under or pursuant to some statute, the ease would have been quite different; although it is not here intended to decide (because unnecessary in this case) that such averment would have been sufficient to give application to the statute above cited (sec. 3.) In Waterville Manuf. Co. v. Bryan (14 Barb., 182), it was held that this statute applied only to corporations created by or under a statute of this Shite. The language of the court in this case has application here. It is there said that “ if the fact of the plaintiff’s existence as a legal corporation had been alleged in the complaint, under the answer which has been put- in, it would have been taken as true. But the fact ivas in no way alleged or stated. The most that can be inferred from the complaint is that there was a company somewhere of the plaintiff’s name;” and the court held that the plaintiffs were bound to prove themselves a corporation. In Tiffany v. Williams (10 Abb., 204), Judge Beady held that it was competent for a party to put in issue the allegation of the complaint that the Racket Court Club was a joint stock company or association, •consisting of more than seven shareholders or associates, by simply •denying the fact; nor does the constitution aid the plaintiff on this question as to the necessity of proof showing the existence of the association which he seeks to charge. The constitution (art. 8, § 1), provides, that corporations may be formed under general laws, but shall not be created by special act, except for municipal purposes, etc.; and then declares (§3) that the term corporation,” as used in article 8, shall be construed to include all associations and joint stock companies. These provisions in no way affect the question of evidence by which the existence of Corporations or quasi corporations is to be proved in the courts. Those provisions only provide how corporations may be formed, and how associations and joint stock companies shall be regarded when proved to exist. The conclusion then is, that the plaintiff in this case was bound to prove, in order to establish his case against the general denial in the answer, the existence of the association known as the Slate Hill Cheese Factory, and that, too, by evidence competent and admissible under rules applicable to the admission of evidence with a view to prove any issuable fact on trial before the court. It follows that the judgment must be reversed.

Learned, P. J., and Osborn, J. concurred.

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


text:
    WILLIAM W. BROWN, Respondent, v. HUGH M. CURRAN and others, Appellants.

      Promise to pay third person —by whom it may be enforced.

    The firm of L. Richards & Co. sold all their stock of goods, inventoried at $6,000, to the defendants, who, in consideration thereof, agreed, at their own proper cost and expense, to settle, satisfy and pay all debts against the said firm mentioned in a certain schedule marked B, on such terms and conditions as they might be able to agree upon with the creditors mentioned in said schedule, and to save said firm harmless from any and all of said creditors.
    The schedule described a debt, “Rice, Goodwin, "Walker & Co., $1,007.21,” for which the said firm had previously given its promissory notes, which the payees thereof had caused to be discounted at the National Park Bank before the agreement had been made, and which, subsequently and after the date of the agreement made by the defendants, were transferred to the plaintiff. In this action, brought by him to recover the amount thereof, held, that the promise of the defendants to settle and pay the debts was an absolute and unconditional one, and that the words “on such terms and conditions as they might be able to agree ” with the said creditors did not in any way change or qualify their obligation.

      Held,, further, that the promise was not limited to the creditors named in the schedules, but could be enforced by a subsequent purchaser of any of the debts therein mentioned.
    Appeal from a judgment in favor of the plaintiff, entered upon •the report of a referee.

      h January 13, 1875, and for some time previous thereto, defendants were copartners, engaged in business as merchants at 447 Broadway, New York, and L. Richards & Co., were a firm engagaged in business as merchants at Norwich, N. Y. On that day an agreement, in writing, was entered into betvrcen said firms, by which defendants agreed, at their own proper cost and expense, to “ settle, satisfy and pay all the debts against said party of the first part (L. Richards & Co.), mentioned in a certain schedule marked B. attached, on such terms and conditions as they may be able to agree with said creditors mentioned in said schedule B., and to save the said party of the first part harmless from any and all of said creditors.” The consideration of said agreement being the sale and delivery, to defendants, of L. Richards & Co’s stock of goods inventoried at $6,013.13.
    Previous to the making of that agreement L. Richards. & Co. liad made and delivered to Rice, Goodwin, Walker & Co., their two promissory notes for the debt described in said schedule as “ Rice, Goodwin, Walker & Co., $1,007.21,” and the National Park Bank had discounted said notes for Rice, Goodwin, Walker & Co., in the regular course of business before they became due,, and said bank was the owner of the notes at the time said agreement was executed.
    The defendants having failed to pay said notes representing said debt the plaintiff purchased them of the National Park Bank and thereafter, in March, 1876, commenced this action to enforce payment thereof m accordance rvith defendants’ agreement.

      Amos G. Hall, for the appellants.

      Albert P. Gladding, for the respondent.
    The defendants having for a valuable consideration, to wit: the sale and delivery to them of L. Richards & Co’s stock of goods promised to pay certain debts of L. Richards & Co., the creditors can maintain an action directly against defendants to enforce such promise. (Lawrence v. Pox, 20 N. Y., 268; Glen v. Hope Mutual Life Ins. Go., 56 id., 379; Clafflin v. Ostrom, 54 id., 581; Hally. Roberts, 61 Barb., 33; Cone v. Niagara Fire Ins. Co., 3 N. Y. S. C. [T. & C.], 33; Thorp v. Keokuk Coal Co., 48 N. Y., 253; Garnsey v. Rogers, 47 id., 233; Turk v. Ridge, 41 id., 201; Ricard y. JSanderson, 41 id., 179; Freeman v. Avid, 44 id., 55; Hutchins v. Miner, 46 id., 456; Cooley v. Howe Machine Co., 53 id., 620; Merrill v. Gi eerie, 55 id., 270; Cox v. Weller, 6 N. Y. S. C. R. ]T. & C.], 309; Barlow v. Myers, 64 N. Y., 41; Arnoldy. Nichols, id., 117; Pomeroy’s Remedies and Remedial Rights, 166-167, 13 A. L. J., 362.)
   Bocees, J.:

The firm of L. Richards & Co. sold and delivered to the defendants goods, wares and merchandise inventoried at a trifie over $6,000, in consideration of which sale and transfer the defendants-promised “at their own proper costs and expense to settle, satisfy and pay all debts against the said firm of L. Richards & Co. mentioned in a certain schedule marked B * * on such terms and conditions as they might be able to agree (upon) with-said creditors mentioned in said schedule;” and to save said firm “ harmless from any and all of said creditors.” This promise on the part of the defendants vas on valid consideration, and was. binding on them, and the creditors of the firm of L. Richards & Co. whose debts were specified in the schedule might maintain an action directly against them for its enforcement. It is the settled rule that if one person, on valid consideration, make a promise to another for the benefit of a third person, such third person may maintain an action upon the promise. (Lawrence v. Fox, 20 N. Y., 268; Arnold v. Nichols, 64 N. Y., 117, and cases there cited.) The debts or claims in suit were mentioned iii schedule B referred to, they -were therefore within the purview of the defendants' promise. So the referee properly awarded judgment against the defendants therefor.

The defendants insist, however, that the promise was condinal, and not binding on them unless they were able to make-terms with the creditors holding the debts; and that as to.the debts in suit they were unable to do so. We are of the opinion, that the agreement will not admit of this construction. The. promise is very specific, “ to settle, satisfy and pay ” the debts. The clause following, “ on such terms aud conditions as they might be able to agree upon with the creditors holding the debts or claims,” in no way changes or qualifies their obligation. The right and privilege of obtaining terms of settlement with the-holders of the claims would remain to them, whether expressed or omitted in the agreement. Undoubtedly the defendants expected to obtain terms better than full payment of the debts. But their promise “ to settle, satisfy and pay ” the debts remained intact. The referee gave, as we think, the proper legal construction to-the agreement in this respect.

It is- also insisted that the promise was limited to the creditors named in the schedule; and that the debts in suit did not belong to any creditor, party or parties, named therein, hence that those debts did not and do not come within the purview of the promise. The answei to this objection is, that the promise embraced or had application to the debts mentioned in the schedule — to those debts there described. It was the debts there mentioned, not the persons there named as creditors, that were to be paid according to the agreement. In this lies the distinction between the case in hand and Barlow v. Myers (64 N. Y., 41), in so far as it is important to mark a difference between the cases. There can be no question but that the debts in suit were mentioned (described) in the schedule. This objection to the recovery we also think untenable. The exceptions to the rulings of the referee on questions of evidence are quite unimportant in the view here taken of the case. If we have rightly construed the agreement, and have given no undue effect to the defendant’s promise, the rulings on questions of evidence have worked no possible injury to the defendants.

The judgment must be affirmed with costs.

Learned, P. J., and Osborn, J., concurred.

Judgment affirmed with costs.


author: Learned, P. J.:

text:
    JOHN P. LAMMOND and others, Respondents, v. DAVID VOLANS, Appellant.

      Cheese factory — bringing milk diluted with water to — knowledge thereof by the patrons of the factory— no bar to enforcement of the penalty imposed by chap. '563 o/1869.
    This action was brought to recover penalties incurred by the defendant in violating chapter 563 of 1869, which provides that whoever shall knowingly bring to be manufactured to any cheese factory, any milk adulterated with water, shall forfeit for each offense not less than twenty-five nor more than one hundred dollars. Upon the trial it appeared that several of the plaintiffs, patrons of the factory, saw the defendant adulterate his milk with water and send it to the factory. They said nothing to him, but mixed his with the other milk and manufactured it into cheese.

      Held, that although the mixing of his with the other milk, knowing his to be adulterated, might pi-event them from maintaining an action to recover the damages thereby occasioned, it did not prevent them from maintaining this action for the statutory penalty.
    The judge charged that in fixing the amount of the penalty, between the limita of twenty-five dollars and one hundred dollars, the jury might make it so large as they thought, from the circumstances and from public necessity, it ought to be made. Held, that the charge was correct.
    Appeal from a judgment in favor of the plaintiffs entered upon 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.
    The action was brought under chap. 563, Laws of 1869, to recover money as forfeited to the plaintiffs by reason of defendant’s having on different occasions brought to their cheese factory, milk diluted with water. The said act, so far as it is material in this case, is as follows : “ § 1. Whoever shall, knowingly, bring to be manufactured to any cheese factory in this State, any milk diluted with water, * * * shall for each and every offense forfeit and pay a sum not less than twenty-five dollars nor more than one hundred dollars Avith costs of suit, to be sued for in any court of competent jurisdiction, for the benefit of the person or persons, firm or association, or corporation, or their assigns, upon Avhom such fraud shall be committed.”

      Edward O. James, for the appellant.

      J. MoNaugliton, for the respondents.
   Learned, P. J.:

This action is brought under chap. 563, Luavs of 1869, to recover penalties for bringing to a cheese factory milk diluted Avith water.

The first point made by the defendant is, that the plaintiffs voluntarily submitted to the act of which they complain. The facts are that the plaintiffs suspected the defendant of watering his milk. Accordingly, they (or some of them) watched him early one morning. They saw him fill a pail half full of Avater, then milk into it, and pour the contents into the pan, and send the can to the factory. They saAV a similar act the next morning They said nothing to the defendant, but poured the diluted milk into the common vat; made cheese, and divided to the defendant his share, as if the diluted milk had been pure

The defendant urges that the plaintiffs, therefore, knew of the wrong which he practiced on them, and, therefore, that they were not defrauded.

It may very .possibly be true that the plaintiffs, having poured into the common vat the milk which they knew was diluted, could not have recovered from the defendant any damages for injury which might be caused thereby. But this is not an action for the damages resulting from the mingling of the diluted with the pure milk. It is an action for the penalties given for the acts specified in the statute — that is, the knowingly sending of diluted milk If the defendant did the acts, he is liable for the penalties. But the defendant urges that the penalties are given to the persons “ upon whom such fraud shall be committed.” He insists that no fraud was committed on the plaintiffs, because they had discovered the wrongful act before the milk was poured into the common vat. The words “such fraud” in the statute refer to the act of knowingly bringing to the factory, to bo manufactured, milk diluted with water. The act forbidden was complete and the penalty incurred when the defendant brought the milk thus diluted to the factory. The plaintiffs’ suspicion that he intended to bring the watered milk is no excuse to him. They did not encourage him to do the -wrongful act. What the plaintiffs did with the milk is immaterial, except in an action for damages. See Verona Cheese Co. v. Murtaugh (50 N. Y., at page 317).

The defendant’s argument goes too far. He says that, as the plaintiffs used the milk, knowing it was diluted, they were not defrauded. Certainly, if they had thrown it away, they would not have been defrauded, upon the same reasoning. So that, whatever they did with the milk, the defendant would have escaped the penalties for his wrongful acts.

The act is peculiar in giving a penalty which may range from $25 to $100.

The court charged that the jury might make it as large as they thought from the circumstances and from public necessity it ought to be made. The defendant excepted to that part which included public necessity.

We see nothing erroneous in that part of the charge. It is. true that, in an action for damages for fraudulently adulterating milk in similar cases, exemplary damages are not proper. (Lane v. Wilcox, 55 Barb., 615.) But this is not such an action. The legislature seems to have intended that the jury should fix the amount of the penalty within certain limits. And there is no impropriety in their considering the public necessity. That is a matter which is really considered in all penalties, whether their amount is fixed by the legislature or by a jury.

. Some objections were made to the admission of evidence. Alt these, however, touch only the question as to the proper parties plaintiff. It was proved by testimony, not objected to, that, in the year 1875, when the defendant’s wrongful acts were committed, the treasurer and secretary of the factory settled with the plaintiffs and with the defendants. Two of the defendants, originally made parties, declined to join as plaintiffs, and were made defendants for that reason. (Code,- § 119.) It was further proved that these persons, the plaintiffs and defendants, were in that year the patrons, as it is called, of the factory; that is, that they brought milk to the factory for manufacture.

One witness testified that he knew that all of these persons brought milk there from the beginning of April till the factory stopped. The plaintiffs offered in evidence what is called the “milk book,” kept under section 1, chap. 563, Laws of 1869, for the purpose of showing that the persons therein named were patrons. To this the defendants objected, and the objection was overruled.

There is no contradiction of the affirmative testimony that persons named as plaintiffs and defendants-were patrons, and brought milk to the factory. Kay, Hadcock and Shields all testify to this. Whether, therefore, the “ milk book” was properly admitted or not, there was no conflict of testimony on the point that plaintiffs and defendants were the patrons of the factory. Besides the defendant did not move for a non-suit as against any particular plaintiff. If any person was named as plaintiff, who had no interest in the matter, this was a misjoinder; but it would not entitle the defendant to a non-suit against all. (Palmer v. Davis, 28 N. Y., 242.) And, on the construction of the evidence most unfavorable to the plaintiffs, it was proved unquestionably that some of them were patrons and were furnishing milk to the factory at the time when the defendant committed these wrongful-acts. Without, therefore, intending to say that the “ milk book n was not properly admitted, we think that its admission could not, have injured the defendant.

The judgment should be affirmed with costs.

Present — Learned, P. J., Bocees and Osborn, JJ.

Judgment affirmed with costs.


text:
    GEORGE WELLS, Appellant, v. SAMUEL SISSON, Respondent.

      Warrant of an'est — when it may he issued by a justice of the peace — contents of affidavit.

    The plaintiff commenced, an action against the defendant before a j ustice of the peace and applied for a warrant of arrest, alleging in his affidavit that the defendant was a non-resident of the county, and that plaintiff “ has as he verily believes a good cause of action against Samuel Sisson, for wrongful and fraudulent representations in the exchange of horses, by which this deponent was damaged to a large amount.”

      Held, that the affidavit did not state facts, as required by the statute; that plaintiff’s belief that he had a good cause of action was not sufficient to authorize the justice to issue the warrant.
    Appeal from a judgment of the County Court- of Warren county, reversing a judgment of a justice’s court.
    The action was commenced before a justice of the peace to recover damages occasioned by an exchange of horses, which the plaintiff claimed to have been induced to make by reason of the false and fraudulent representations of the defendant. The defendant was arrested by virtue of a warrant issued by the justice upon the following affidavit, made by the plaintiff.
    Warren County, ss: George Wells being duly sworn, says that he has, as he verily believes, a good cause of action against Samuel Sisson for wrongful and fraudulent representations in the exchange of horses, by which this deponent was damaged to a large amount; and this deponent further says that the said Samuel Sisson is a non-resident of Warren county, and he therefore prays process by warrant against said Sisson,
    Sworn to, etc. GEORGE WELLS.
    The defendant, after having been brought into court, moved to dismiss the action on the ground that the facts stated in the affidavit were not sufficient to authorize the issuing of the warrant, and the motion was denied.

      I. <£ (J. M. Mott, for the appellant.

      J. E. Dewey, for the respondent.
   Learned, P. J.:

The Revised Statutes originally authorized a justice of the peace to issue a warrant in a civil action in four cases. One of these was when the defendant ivas a non-resident of the county. (2 R. S., m. p. 228, \ 17.) The non-imprisonment act has limited this by saying that no warrant shall issue in an action upon contract. The plaintiff here claims that this is an action in tort against a non-resident of the county, and therefore the warrant was proper.

On the application for a warrant the person applying shall state the facts and circumstances within his knowledge, showing the grounds of the application, Avhereby the justice may the better judge of the necessity and propriety of issuing such warrant. (Section 19.) In the present case the affidavit states that the defendant is a nonresident of the county; and the only other statement is that “ he has, as he verily believes, a good cause of action against Samuel Sisson for wrongful and fraudulent representations in the exchange of horses, by which this deponent was damaged to a large amount.” The facts and circumstances must be sot forth. (Clark v. Wellington, 12 S. C. N. Y. [5 Hun], 640; Whitney v. Shufelt, 1 Den., 592; Loder v. Phelps, 13 Wend., 46.) There is no fact stated in this affidavit aside from the non-residence of the defendant', except the belief of the plaintiff that he has a good cause of action, etc. He should have stated the facts from Avhich the justice could judge Avhether or not there was a cause of' action on tort, and hence whether. it avus necessary or proper that the warrant should be issued. Some positive averment should have been made which, if unttue, would expose the plaintiff to indictment for perjury. That he had á good cause of action was but a conclusion of law.

We think that on this ground the judgment of the County Court should be affirmed, with costs.

Present, Learned, P. J., Bockes and Osborn; JJ.

Judgment affirmed, with costs.


author: Osborn, J.:

text:
    HENRY V. SCATTERGOOD, Respondent, v. SAMUEL G. WOOD and THOMAS G. WOOD, Impleaded, with G. DUDLEY VAN VLIET, Appellants.

      Action of replevin — measure of damages in.

    The plaintiff was the owner of a machine called the American Needle Cotton Gin and Condenser, having invented the principle of the machine, he constructed the one in question as a model to experiment with, and to exhibit at two fairs to be shortly thereafter held. Defendants, who had contracted to purchase the invention, wrongfully took the machine from the plaintiff for the purpose of experimenting with it themselves, and to prevent him from exhibiting it at the said fairs, where they themselves intended to exhibit a rival machine of their own. Plaintiff subsequently manufactured another machine at a cost of §825, but it not being completed in time, plaintiff was unable to exhibit it at one of the fairs.
    In an action brought by him to recover the first machine and damages for its-detention, it appeared that the machine had so depreciated in value as to be worth only five dollars, the cost of the materials used in its construction ; and he was allowed as damages for the detention thereof, the expense incurred in building the second machine, together with interest thereon.

      Held, that the allowance of damages was as favorable to the defendant as he had a right to ask.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      Samuel Wood, for the appellants.
    The measure of damages is the value of the article at the time of conversion, with interest.
      {Since)' v. Waters, 65 Barb., 227; Buzsee v. Maybee, 21 Wend., ■144; Tremain v. Smart, 4 Lans., 263; Tiedman v. O'Brien, 36 N. Y., 538.)
    J! A. Dewey, xor tne respondent.
    The measure of damages adopted by the referee was even more favorable to the defendants than was warranted by the case. The plaintiff had particular use for this machine of which defendants were apprised. They directly and designedly prevented him from putting it to such use. Being in competition with him, they forcibly deprived him, for the time being, of the use of his invention and of the means he had provided with which to compote with them; and they did so, to prevent his successful competition with, and to favor their own invention. (Blanchard v. Ely, 21 Wend., 350; Dewinl v.Wiltse, 9- id., 326.) Their acts being deliberate and willful, the law applies liberal relief; and even holds the wrong-doer answerable for consequences very remote from the original act. (Sedg. Dam., 79, 531; Loioery v. West, U. T. Co., 60 N. Y., 201-2; Wilde v. Ilextor, 50 Barb., 449; Alaback v. Utt, 51 N. Y., 651; Silsbury v. McGoon, 3 Comst., 379, 391.) This may justly be likened to those cases where the pretium affectionis is awarded; in which the market value of the thing taken is held to be no criterion of its value to the owner, but where his estimate of value is to govern, especially, as here, against willful wrong-doers. (Sedg. Dam., .65, 474; Suydam v. Jenkins, 3 Sandf., 615, 621; 2 Pare, on Cont., 471 [1st ed.]; Watson v. The Ambergate, etc., II. Go., 15 Jur., 448; S. C. 3 E. L. & Eq. Rep., 497; See Simpson v. London, etc., R. Go., L. R. Q. B. D., 274; See Abst., 13 Alb. L. J., 413.) Here, it was a now article — no sales — no market value — and everything tending to show the advantages accom panymg its possession is to be considered. (Booth v. Spuyten D., etc., Co., 60 N. Y., 487, 493; Woodward v. Bugsbee, 2 Hun, 128; Harris v. The P. R. Go., 3 Bosw., 17; Cook v. Soide, 45 How., 340; Wemple v. Sleioart, 22 Barb., 154; ■Simpkins'v. Low, 49 Barb., 394; Sternfels v. Clark, 2 Hun, 122.) If the article has a usable value, the value of its use during its detention, is a proper item of damages. (Allen v. ■ Fqx, 51. N. Y., 562.) So, what one necessarily expends, to supply, the place of the article taken. (Clinton v. Toivnsend, 1 T. & C., 330; Davis v. Oswell, 7 Carr. & P., 804; Johnson v. Holyoke, 105 Maas., 80.)-So, time and expenses paid, while searching for it. (McDonald v. Forth, 47 Barb., 532; Sprague v. McKenzie, 63 Barb., 60; Bennett v. Lockwood, 20 Wend., 223; Miller v. Carling, 12 How., 203.) The depreciation in the value of the machine, during its wrongful detention, must be included in the damages for detention. {TheF. Y.C.& hid. Co. v. Flynn, 55 N. Y., 653; Allen v. Fox, 51 id., 564-5; Brewster v. Silliman, 38 N. Y., 423.) Special damages, by reason of depreciation in the value during detention by defendant, need not be alleged in actions for claim and delivery. (Young v. Willet, 8 Bosw., 486; Woodruff v. Cook, 25 Barb., 511-12.)
   Osborn, J.:

This action was orougnt to recover the possession of a cotton-gin, with damages for detention, to the amount of two thousand live hundred dollars. After issue was joined it was referred to Á. B. Voorhees, Esq., as sole referee to hear and determine. On the 19th day of October, 1875, he made his report, in which ho found: First — that the plaintiff was the owner of a machine called the American Needle Cotton-Gin and Condenser. Second — that the principle of such machine was the invention of the plaintiff, and that this machine was made as a model or test one for experimenting in ginning of cotton, and that no other machine of that principle had ever been manufactured. That it was plaintiff’s intention to exhibit the same as his invention in the fall of 1867 at fairs in New York and Baltimore. Third — That on the fourth of September, 1867, defendants wrongfully and forcibly took the same from plaintiff. Fourth — That at the time of such taking defendants had contracted with plaintiff to purchase the invention when it should be patented, and that the object of such wrongful taking was to experiment or test such machine themselves. The action was commenced December 12th, 1867, but defendants kept possession by giving the bond required by law. That the materials and labor in constructing this machine were worth nineteen hundred and fifty dollars. Fifth — That after such taking plaintiff commenced to make another machine containing the same principie, to take the place of the one wrongfully detained by defendants, to be used as a model or trial one for exhibition; this was completed in time for the Baltimore fair, but not in time for the New York fair, and this last machine cost eight hundred aiid twenty-five dollars. Sixth — -That plaintiff was unable to exhibit this invention at the New York fair, by reason of the Wrongful acts of defendants. That the gin so depreciated in value that at the time of the trial it was only worth five dollars, being" the. value of the materials used therein.

As a conclusion of law the referee found that the plaintiff was entitled to a judgment for the delivery of the machine, or for five dollars, the value thereof at the time of the trial, if it could not be delivered, together with the sum of one thousand two hundred and eighty-seven dollars, being the amount expended in constructing the second machine, with interest, as damages for the wrongful detention thereof, besides costs.

Upon this report judgment was duly entered, and from such judgment the defendants appeal.

The only real question presented for examination on this appeal is whether the rule of damages adopted by the referee dan be sustained. Indeed, this was the only question seriously urged or discussed upon the argument. The solution of this question will, therefore, necessarily determine the result. Upon the settlement of the case, certain additional findings of fact of great importance, it seems to me, were found by the referee, and must not be overlooked.

1st. That the value of the labor and materials expended in making and manufacturing the machine taken by defendants was $1,950. 2d. That, when it was taken, plaintiff intended to exhibit it at these fairs, and the defendants knew this purpose and intention. 3d. That one of the purposes and objects of the defendants in taking such machine was to prevent such exhibition and to. prevent competition with a cotton gin of a different device or invention which defendants had, and which, in fact, they exhibited and experimented with at both said fairs. 4th. That, at the time of the wrongful taking, there was no market value therefor, but that it was worth to the plaintiff the amount of the labor and •materials expended by him in the making thereof. 5th. That plaintiff has sustained damages by the wrongful talcing and detention, in being deprived of the use of said machine, and in the value thereof during such detention. The defendants excepted to all of the original and supplemental findings of fact, but, from a careful examination of the evidence, I am of the opinion that there is at least some evidence to support each finding, and that the conclusions of. the referee as to the facts cannot, therefore, be disturbed. The principle is too familiar to require argument or authority, that the report of a referee, like the the verdict of a jury, must be deemed conclusive as to the disputed questions of fact, even though the appellate court might arrive at a different result or conclusion from the evidence. The court has the undoubted power to set aside such report or verdict, where the preponderance of evidence is so clear as to indicate prejudice, corruption or passion, or a manifest disregard of what is evidently the truth, but I am unable to find anything in this case to Avarrant the exercise of this power of discretion.

This uoav brings us to the only question involved, as before stated, Did the referee adopt the true rule or measure of damages in a case like the one under discussion? Every laAvyer understands that, in ordinary cases of this character, the measure of damage? is the value of the property at the time of the conversion, Avith interest, (Spicer v. Waters, 65 Barb., 227; Brizsee v. Maybee, 21 Wend., 144; Twinam v. Swart, 4 Lansing, 263.) But there are exceptions to this general rule. Many cases maybe imagined Avhere, if no other rule of damages could be applied, the greatest injustice would be done. In SedgAvick on Damages, p. 481, 2d eel., the following language is employed: “ The ordinary riile applies, unless the plaintiff has been deprived of some-particular use of his property, of which the other party was apprised, and Avhich he may be thus said to have directly prevented.” In such cases, a different rule applies. Again there are a class of cases Avhere the taking or detention is deliberate and Avillful. In such cases, a different measure of damages may be applied and the Avrong-doer held responsible for consequences, quite remote from the original act. (Sedgwick on Damages, 79, 531; Wilde v. Hexter, 50 Barb., 449; Allaback v. Utt, 51 N. Y., 651; Silsbury v. McCoon, 3 Comstock, 379, 391.)

There are a class of cases where the property converted has no fixed, settled or market value. Can a person who wrongfully takes property of this character escape the full consequences of his wrong, simply because the party complaining cannot show á market value to the property of which he has been deprived? To the real owner it might possess a value which could hardly be estimated. Suppose a valuable portrait painting of a deceased friend is the subject of conversion. It has no market value. It cannot be purchased. In such a case, shall the real owner be turned out of court without damages, because no market value can be given or placed upon the property converted? Shall he not be allowed to recover at least the cost of the article, which a willful wrong-doer has defrauded him of? (Sedgwick on Damages, 65, 474; Suydam v. Jenkins, 3 Sandford, 615, 620.)

In the case of Parsons et al. v. Sutton and others (66 N. Y., 92), which was an action to recover damages for a broach of contract to sell and deliver certain articles, the court holds “that the ordinary rule of damages in such a case is the difference between the contract price and the market price at the time and place of the delivery. When the buyer can go into the market and buy the article which the seller has failed to deliver, this is the only rule, as it offers the buyer full indemnity. But special damaged are allowed when this rule will not furnish full indemnity. If there is no market for the article where it is to be delivered, and it cannot be had there with reasonable diligence, and the buyer suffers damage because of the seller’s failure to deliver, which is the proximate and natural consequence of such failure, such damages can be recovered.” (Suydam and others v. Jenkins, 3 Sandf., 615, 621.)

•In Mayne on Damages (206), the following language is employed: “Instances may occur in which goods arc intended not for mere sale, but for some special purpose Avhich has been frustrated by their conversion; loss thus-arising may be recovered.”

In this case the referee finds that the machine taken by defend^ ants had no market value. Indeed, it seems to have been the only one of the kind in existence. It was supposed to contain a principle invented by the plaintiff, of great value, and which would render it far superior to any other article of the same kind in use. For this invention the plaintiff was about applying for letters patent. This machine had been constructed at a cost of $1,950, and with a view to show off or demonstrate the new principle involved, at the fairs in New York and Baltimore the same fall. It had no present market value. Its future value was entirely dependent upon circumstances. All these things the defendants knew, and possessing such knowledge, they wrongfully took and detained the same. What was the plaintiff to do ? Besides, the referee finds that it was an intentional wrong-taking; that defendants did so to prevent plaintiff from exhibiting his machine and the principle involved, at these fairs, as it would bring him in competition with them, they owning another machine calculated for the same purpose. I think the plaintiff, under such circumstances, was justified in incurring the expense of building another machine, as he did, and which cost one thousand dollars less than the one taken.

At the time of the trial, the machine had so far depreciated in value as to be worth only five dollars — in a word, just what the material was worth for other purposes. From this it is fair to assume that it turned out that the principle involved in the invention of the plaintiff had been demonstrated to be valueless. But this could'not be known or reasonably assumed at the time of the conversion. From what appears in the case, it is evident that at the time all the parties regarded it as of great value.

I am of the opinion that the referee has adopted as favorable a rule for damages as the defendant could possibly ask. The plain-' tiff constructed a new machine at a much less cost than that of the one taken. This was made necessary by the wrongful acts • of the defendants. The damage therefor fixed by the referee was the natural and reasonable result of the defendants’ acts. Nothing, is included for any loss or injury in not having the machine to exhibit at both fairs, as the plaintiff had expected to do. The plaintiff is allowed nothing but the actual and necessary, expense to which he was put in making another article similar in kind to the one converted,, and with the view of accomplishing just what he had designed to do with the one taken from him, and which was well known to the defendants.

The judgment appealed from must be affirmed with costs.

Learned, P. J., and Bockes, J., concurred.

Judgment affirmed with costs.


text:
    EDGAR SMART and DANIEL R. McCHESNEY, Respondents, v. ANNA M. HARING, Impleaded, etc., Appellant.

      Infant plaintiff, coming of age before trial — failure of, to appoint a guardian-—waived by defendant pleading to the merits— Wife’s inchoate right of dower — release thereof ^validity of consideration given her by her husband therefor.

    Where the plaintiff at the time of commencing an action is an infant but arrives at full age before the trial thereof, the omission to procúre the appointment of a guardian ad litem for him is a mere irregularity, which the defendant waives by pleading to the merits.
    A release by a wife of her inchoate right of dower in the lands of her husband is a good consideration for his paying or promising to pay her áherefor, and a conveyance of property to her in pursuance of such agreement is valid, except as against creditors existing at the time thereof, and is valid as to them to the extent of the value of such inchoate right, computed according to the rule laid down in Jackson v. Edwards (7 Paige, 408

      Doty v. Baker (11 Hun., 222) followed,
    Appeal from a judgment in favor of the plaintiff entered upon the trial of this action by the court, certain issues having been previously tried by a jury.
    The action was brought to have certain conveyances executed by the defendant, State S. Haring, to George S. Dexter, and by the latter to Anna M., wife of said State S. Haring, set aside as fraudulent and void as against, the plaintiffs who were creditors of the husband.
    On the 2d day of January, 1874, State S. Haring was the owner of the premises set forth in the complaint, subject to a mortgage, upon which was due the sum of $1,800. On said last named day the defendant, State S. Haring, being desirous of obtaining a loan on the property of $4,000, and the defendant Anna M. Haring refusing to join in the mortgage, he agreed in case she ■would do so to convey the premises to her, subject to ■said $1,800 mortgage and the $4,000 mortgage, and in pursuance of such agreement the said defendant and appellant joined in tho-■execution of a mortgage to Michael B. Brandon for said $4,000, both of which mortgages remain unpaid.
    The deed to Dexter, and from Dexter to Anna M. Haring, July 31st, 1874, were recorded and executed in pursuance of this agreement. Both deeds were delivered to State S. Haring for the defendant Anna M. Haring.
    It appears that the greater part of the work, of the plaintiffs was performed and the materials were furnished prior to July 31st, 1874. In payment of the amount so due, State S. Haring gave his note to the plaintiffs, upon which they subsequently recovered a judgment, upon which this action was brought.
    It also appeared that. one of the plaintiffs, Edgar R. McChesney, was an infant when the action was commenced, and no guardian was appointed for him, but that he became of full age before trial; the objection of infancy was raised by stipulation the same as if interposed by answer.
    The court held that the joining by the defendant and appellant in the execution of the $4,000 mortgage was not a valuable consideration, and adjudged the several conveyances to her fraudulent and void, as against the plaintiffs, and directed the judgment of the plaintiffs to be satisfied out of the property, subject to the inchoate right of dower of the said Anna M. Haring, after the two mortgages for $1,800 and $4,000. That the infancy of the plaintiff McChesney was not a defense to the action, to which several findings of law the defendant Anna M. Haring duly excepted.

      Henry A. Merritt, for the appellant.

      King & Rhodes, for the respondents.
   Osborn, J.:

When this action was commenced the plaintiff McChesney was an infant under the age of twenty-one yearn. No guardian was Appointed. Before the trial he had arrived at his majority. I think that the omission to procure the appointment of a guardian for the infant plaintiff was an irregularity simply. It did not affect the jurisdiction of the court. (Wolford v. Oakley, 43 How., 119; Croghan v. Livingston, 17 N. Y., 221; Rogers v. McLean, 31 How. Pr., 283; McMurrag v. McMurray, 66 N. Y., 177.) By pleading to the merits, this irregularity I think was waived, and the plaintiff must be regarded as rectus in curia. (Parks v. Parks, 19 Abb., 161; Graham v. Pinckney, 7 Robt., 149.) But the precise question involved here was settled in Rutter v. Puckhofer (9 Bos., 638). Where the court held “ that when the plaintiff attained his majority, the necessity for. as well as the office of, a guardian cease.”

But I am inclined to think that the learned justice before whom this cause was tried at the Circuit erred in treating the conveyance to the wife as a voluntary conveyance, without consideration. The cases which he cites in his opinion are all cases of voluntary conveyance, which means a conveyance without any valuable consideration. (Babcock v. Eckler, 24 N. Y., 623.) It is clear in such cases that if the grantor’s intention was fraudulent it makes no difference that the grantees knew nothing of such intent. But a different rule prevails whore the conveyance is given for value. In the latter case the fraudulent intent must be brought home to the knowledge of the grantee. (Newman v. Cordell, 43 Barb., 448; Jaeger v. Kelley, 52 N. Y., 274; Rull v. Philips, 48 id., 125, 130; Holmes v. Clark, 48 Barb., 237.)

The inchoate right of dower of the defendant, Anna M. Haring, was a valuable and subsisting interest, and one which would give her a.right of.action if necessary to preserve and protect. (Simar v. Canaday, 53 N. Y., 298; Mills v. Van Voorhies, 20 id., 412; Douglas v. Douglas, 18 S. C. N. Y. [11 Hun], 406.)

In the case of Doty v. Baker (18 S. C. N. Y. [11 Hun], 222), it was held that a release by a wife of an inchoate light of dower in the lands of her husband, is a good consideration for his-paying or promising to pay a part of the purchase money, except as to existing creditors, and as to them she is entitled to retain the actual value of such inchoate right as ascertained by the rule laid down in the old case of Jackson v. Edwards (7 Paige, 408). In this case Mrs. Haring received her deed on the 31«t of July, 1874, in pursuance of an agreement made January 2, 1874. That agreement was that if she would sign a $4,000 mortgage she should receive this deed. But when she received this conveyance the large proportion of the husband's indebtedness to plaintiffs had accrued, according to the findings of the justice before whom this cause was tried. It seems to me that following the case, of Doty v. Baker, above referred to, and which seems to be a well considered opinion, that the judgment appealed from should be modified so as to protect the inchoate dower interest of Mrs. Haring in the $4,000 mortgage which she was induced to sign in consideration of this conveyance to her. That is after the payment of the mortgages her inchoate dower interest in the sum of $4,000 must first be secured to her, together with her inchoate dower interest in the entire surplus after paying said mortgages as now provided by the judgment, before the plaintiff shall be allowed any sum whatever of the proceeds arising from a sale of the premises in question. In a word, before the plaintiff's claim can be paid Mrs. Haring must have allowed to her, not only all that the judgment now provides for her, but whatever her inchoate dower interest would be, in an amount equal to the amount due on the $4,000 mortgage, must be secured to her. This to be determined by the rule as laid down in Jackson v. Edwards (7 Paige, 408).

As thus modified the judgment is affirmed, but without costs to either party. J udgment to be settled by me.

Learned, P. J., and Bockes, J., concurred.

Judgment modified so as to allow Mrs. Haring also the value of her inchoate right of dower, and as modified affirmed without costs to either party. Judgment to be settled by Osbobn, J.