author: Taylor, J.

text:
    Eleazer Warring, Plff, v. John B Keeler, Def't.

      (Chemung County Court,

      Filed February 1895.)

    Justice’s Court — Summons—Service.
    A justice of the peace has no authority to deputize the plaintiff to serve his own summons and he thereby acquires no jurisdiction to render a judgment.
    Appeal from a judgment in favor of plaintiff.

      L. E. Mosher, for app’lt; G. L. Smith, for resp’t.
   Taylor, J.

The plaintiff and respondent on the lath day of August, 1894, applied to L. W. Bailey, a justice of the peace of the town of Veteran in this county, for a summons against the defendant. The justice issued said summons, and made it returnable on the 23d day of August, at ten o’clock in the forenoon. On the back of the summons he put the following indorsement: “El cazar Warring is hereby authorized to serve this precept. L. W. Bailey, Justice.” On the 1st day of August the plaintiff served the summons and made the usual return. The plaintiff was not a constable. The defendant did not appear, and on the return day the justice rendered judgment for the plaintiff for $39.45 damages and $1 costs. The defendant has appealed from said judgment, and insists that the same is void upon the ground that the justice acquired no jurisdiction to render the same, for the reason that the plaintiff was prohibited from serving the summons under section 3156 of the Code of Civil Procedure. The section relied upon by the defendant’s counsel authorizes the justice, at the request of the party, to empower, by written authority indorsed upon the mandate, any proper person of full age, not a party to the action, to serve or otherwise execute it. The fact that the plaintiff served this summons is not disputed, but the counsel for the respondent insists that he had the right to do so, having been authorized by the justice, and has referred us to the cases of Putnam v. Man, 3 Wend. 202, and Tuttle v. Hunt, 2 Cow. 436. We do not think either of the cases cited is authority. They were decided before the adoption of the present Code, prohibiting a party in a justice’s court from serving a summons in his own behalf, and we are of the opinion that the statute was enacted tor the purpose of abrogating the rule established by these cases. The principle decided in the case of Putnam v. Man was that the service of the summons could not be attacked collaterally, and the case, so far as it established that principle, has been followed, although criticized by Parker, J., in Fitch v. Devlin, 15 Barb. 47 ; but we have not been cited to a case since the adoption of the present Code, nor have we been able to find one, where the courts have held that the party to an action in a justice’s court could serve his own summons, and we do not think we would be justified in declaring that the language of the section above referred to was not intended to prohibit what it expressly declares shall not be done. We are therefore of the that the had no authority to deputize the plaintiff to serve this summons, and acquired no jurisdiction to render this judgment. The learned counsel for the respondent insisted upon the argument of this case that it was the duty of the defendant to appear before the justice, and there present his objections to his jurisdiction, and, he having failed to do so,' he was estopped from raising the question in this court, and to support this contention he cites cases where it has been held that if the defendant had appeared and objected the objection would have been good. We, of course, are not called upon to pass upon that question in this case. We have no inclination to dispute the proposition. The counsel for the respondent also-insists that this case is controlled by the case of Lindsay v. Tansley 44 St. Rep. 653. We do not think that this case is analogous or controlling. In that case the summons was properly served, and the mistake was apparent upon its face, and as the court say: ‘‘The defect was a mere verbal defect, and might have been obviated at the trial or shown to have been a mistake in fact.” And the court holds th.at the mistake as to the return day was an irregularity, and it was the duty of the defendant to appear before the justice, and there present his objection, and, having failed to do so, he could not raise it on appeal; but it will not be contended that if the defendant had appeared in this case there could have been any correction or proceeding taken which would have made the service of this process valid or legal, or which could have given the justice jurisdiction of the person of the defendant, unless he waived his legal rights. Nothing could have been done but a dismissal of the case, and it was the duty of the justice, under the plain and expressed provision of this-statute, to have done so. He had, in direct violation of the law, authorized an improper person to serve this process, and the only thing left for him to do to correct his error was to dismiss the case, and issue a new process, and have it served as the the law directs. It seems to us that if we should hold that the service of this process was valid we would not only oveiride the express provisions of the statute, but would be establishing a precedent which might open the door for these inferior courts to disregard all of the rules adopted by the legislature for their guidance and the protection of their suitors. If the clear mandate of the law, that the party to the action cannot serve his own summons, can be disregarded, then the provisions as to service by an infant, and personal service, and the sworn return of a constable to the servie, or that the justice did not wait one hour before proceeding with the trial, may all be urged as mere irregularities, of which the defendant cannot take advantage on appeal, unless he appears and raises the question before the justice. There is abundant authority that the service and the return of the constable and that the justice-must wait one hour, or that the defendant was not a resident of the county or of the town or of an adjoining’town, must be made and shown to have been done pursuant to the provisions of the statute, and, if they are not, the justice acquires no jurisdiction. Fitch v. Devlin, 15 Barb. 47 ; Wheeler v. Lampman, 14 Johns. 481; Manning v. Johnson, 7 Barb. 457 ; Sherwood v. Railroad Co., 15 id. 650; Sperry v. Reynolds, 65 N. Y. 179 ; Jackson v. Sherwood, 50 Barb. 356; Brown v. Cady, 19 Wend. 477. In the case of Larocque v. Harvey, 57 Hun, 366 ; 32 St. Rep. 415, the court says that “ the fact that the defendant did not appear in response to a summons, which the justice had no jurisdiction to issue, was no waiver of his right to his subsequent objection to the entry of an unauthorized judgment.” When we consider the fact that justices’ courts derive all of their powers from the statutes creating them, we cannot bring ourselves to the conclusion that so flagrant a violation of the law regulating their procedure as this case presents should be permitted, tinder the circumstances of this case, we have arrived at this determination with considerable regret, but we must apply the law according to our best judgment and understanding, irrespective of its hardships to individuals. The judgment must be reversed. Judgment reversed.


source: Caselaw Access Project

author: Ehrlich, Ch. J.

license: Public Domain

text:
    Edward Thompson Company, Pl’ff, v. Samuel Lobenthal, Def’t.

      (New York City Court, Special Term,

      Filed February, 1895.)

    Costs — Security for.
    Security for costs cannot, under section 3268 of the Code, be required of a domestic corporation.
    Application to compel plaintiff to give security for costs.

      William O. Campbell, for pl’ff ; Samuel Lobenthal, in pro. per.
   Ehrlich, Ch. J.

Section 3268 of the Code, in regard to security for costs, applies to persons residing without the county or to foreign corporations. The plaintiff herein is a domestic corporation, created by the laws of this state, and does not come within the category of those who are required to furnish security.

Motion denied, with costs to abide the event.


author: Coleman, S.

text:
    In the Matter of the Judicial Settlement of the Accounts of the Executor of James Ball, Deceased.

      (Surrogate’s Court, Orange County,

      Filed February, 1895.)

    W inn — Construction.
    Where it is the intention of the testator, as gathered from his whole will, to give to each of his daughters and their children an equal amount, a bequest to the children of one of his daughters vests in them at his death.
    Judicial settlement of the accounts of the executor.

      Abram F. Serviss, of the executrix of Theodore Ball, deceased; John J. Beattie, for the administrator of Carrie Pelser, deceased.
   Coleman, S.

The question for determination in this case is the construction to be given the following clause oi tne testator’s will:

“ Sixth. I gi ve and bequeath to my executor hereinafter named the sum of $2,000, in trust to pay the interest thereof to my daughter Eliza Reiser, during her natural life, semi-annually, and upon her death to pay the said principal sum of $2,000 to her two children, Maggie and Carrie, share and share alike.”

Did the gift to Carrie at the death of the testator become vested, or was it contingent upon her surviving her mother ? The testator died April 17, 1881, and his daughter Eliza Reiser died June 25, 1894, her daughter Carrie having died before her, in June, 1882. There is no gift in terms to the testator’s granddaughters,. Maggie and Carrie, but, by a rule of construction, they take a bequest by implication. By another rule of construction, where the only gift is found in a direction to divide or pay over at a future time, the gift is future and not immediate; contingent and not vested. Leake v. Robinson, 2 Merc. 363 ; Warner v. Durant, 76 N. Y. 133; Smith v. Edward, 88 id. 92. This rule -of construction is mentioned frequently in the decisions of the highest court of this state, and even so late as in Miller v. Gilbert, 144 N. Y. 68; 63 St. Rep. 41. It is, however, rarely applied, because the rule is made subordinate to the further rule that effect must be given to the apparent purpose of the testator as gathered from his whole will. As in the case of Warner v. Durant, supra, where it was held that “ a severance of the gift instanter from the general estate for the benefit of the legatee, and in the meantime the interest thereof is to be paid to him, and is indicative of the intent of the testator that the legatee shall at all events have the principal, and is to wait only for the payment until the day fixed.” So, also, in Goebel v. Wolf, 113 N. Y. 405 ; 23 St. Rep. 176 ; In re Seebeck, 140 N. Y. 241; 55 St. Rep. 377 ; Dimmick v. Patterson, 142 N. Y. 322; 59 St. Rep. 8 ; Miller v. Gilbert, supra. and many other cases. In all of these cases, for one reason and another, the court finds in the will of the testator some provision which indicated to the mind of the court that the testator intended the legacy to vest. In fact, I have not found a case where the rule that a naked direction to divide or pay over is a contingent gift has been enforced after the case of Smith v. Edwards, 88 N. Y. 92. The provision above quoted from the will or James Ball is the only one in the will having any reference whatever to this $2,000, unless it is found in the gift of all the rest, residue, and remainder of the testator’s real and personal estate to his son Theodore. This particular $2,000 is set apart from the rest of his estate for the use of his daughter and her children, and no other provision is made for any of them. To another daughter, Sarah, he gives a like sum of $2,000; also, to his daughter Mary $2,000. To his daughter Juliette he gave $1,500 only, but he gives to the children of that daughter $500 more. So that we find in the will a provision for each daughter of $2,000. To the other daughters than Eliza he gives it unimpressec with any trust, but the intention is quite clear that he intended his daughter and her children to receive eventually the same $2,000 his other daughters received, not contingently upon a survival, but payment to the granddaughters being only deferred < until the death of their mother. The decree will therefore provide for the payment of Carrie’s share to her legal representative. Decreed accordingly.


author: Booth, S.

text:
    In the Matter of the Judicial Settlement of the Accounts of Andrew Stafford, as Executor of William Moore, Deceased.

      (Surrogate’s Court, Clinton County,

      Filed February, 1895.)

    1. Wills — Construction.
    The law favors a construction which will not tend to the disinheritance of the heirs.
    3. Same.
    The words in a will, “after the death of my two sons and their heirs, if they have any,” the property of testator should go to his brothers and sisters, clearly indicates the intention to be that, only in the event of the extinction of the testator’s lineal descendants, the property should go to the collateral heirs.
    Judicial settlement of the accounts of the executor of William Moore, deceased.

      W. C. Watson, for the executor; L. L. Shedden, for the heirs ; R. E. Haley, T. F. Conway and F. A. Smith, for the collateral relatives.
   Booth, S.

The testator, William Moore, on the 10th of March, 1888, executed his last will and testament, in which, after giving certain legacies to his brothers and sisters and other persons, he made the following disposition of his property:

“Seventhly. I give my two sons, Bichard R. Moore and Alonzo S. Moore, both of Beekmantown, Clinton County, N". Y., the use and occupancy of all my real estate, and also the interest of my personal property, to be equally divided between them, share and share alike, to be paid them by my executors after the payments and bequests before stated are paid, said bequests to be paid them three years after my death. If the use and occupancy and the interest of personal property shall be insufficient to support my two sons, in that case I authorize my executors to use an amount of the personal property sufficient to support them as long as they live, or either of them. In case one of my sons above stated should die, the surviving one to receive the whole use and occupancy of my real estate, and the interest of my personal property. After the death of my two sons and their heirs, if they have any, I give my real and personal estate to my sister Susan Bullís, wife of Louis Bullis; my sister Maria Roberts, wife of John Roberts ; to my sister Phoebe Oliver, wife of Henry Oliver, and to my brother, Amos Moore, of Plattsburgh, their heirs, intending the children of my sisters and brother to have the said real and personal property. If either of my sisters or my brother should die, I give the same to their children, share and share alike.”

The testator, at the time of the making of the will, was about seventy-six years of age. He died on the 4th day of November, 1885, leaving surviving him his two sons, Richard R. Moore and Alonzo S. Moore, both of whom were unmarried. 1 The will was duly probated on the 20th day of November, 1885. Richard R. Moore died on the 17th day of August, 1889. leaving surviving no descendants, and unmarried. Alonzo S. Moore, the other son, married on the 10th day of October, 1886, and died on the 13th day of September, 1894, leaving surviving a widow and two children, William L. Moore and Phoebe E. Moore. Both of the sons of the testator being dead, a construction of his seventh clause of the will becomes necessary to determine in whom the personal property of the testator vested upon the death of Alonzo, and in such a case jurisdiction to construe the will attaches as incident to proceedings for an accounting and distribution. Purdy v. Hayt 92 N. Y. 450. It is clear that the testator gave to his two sons, during their lives, the use of both the real and personal property, the surviver to have the entire use and income of the same; and the only question remaining is whether, upon the death of the surviving son, Alonzo, his two children take the property, or whether it goes to the collatéral relatives of the testator named in the seventh clause, and to their heirs. In determining this question several well-settled principles are to be followed.

First. It is the duty of courts of justice to carry into effect the intent of the testator, so far as such intent can be collected from the whole instrument, and is consistent with the rules of law. As said in Scott v. Guernsey, 48 N. Y. 120.

“The chief and only object of judicial construction, while applied to a will, is to ascertain and determine the intention of the testator.”

It is evident that the will was drawn by a man ignorant of the technical rules relating to the creation of estates and the words necessary or appropriate to their creation, and, as said in Lytle v. Beverlidge, 58 N. Y. 598 :

“Of such a will, above all others, it is the duty of the court to be astute in discovering and giving effect to the actual intent of the testator, as the same may be spelled out from the body of the instrument, read in the light of the surroundings and relations of the author, and the circumstances in which he was placed, and, so far as may be, unembarrassed by technical rules of construction. * * * The doctrine that the intent of a testator is the guiding and controlling rule of interpretation requires, not infrequently, a disregard of the usual technical meaning of words and phrases, and, when necessary, such technical meaning must yield to the evident intent of the testator. Eules of construction are resorted, to as helps or aids in arriving at the intent of a testator, and ought not to be followed when they lead to results subversive of such intent. There is no rigid rule of law to the effect that words shall not only he used in one certain sense, or requiring courts to give language the same interpretation and effect under all circumstances and in every connection.”

Second. Another principle to be followed is that the law favors a construction which will not tend to the disinheritance of heirs. That meaning is to he preferred, if the case were balanced, which inclines to the side of the inheritance of the children of a deceased child. Scott v. Guernsey, supra; In re Brown, 93 N. Y. 295; Vanderzee v. Slingerland, 103 N. Y. 54. Indeed, in Lynes v. Townsend, 33 N. Y. 561, the court states that it is one of the “established and well-known canons applicable to the construction ■f all wills that the heir is not to be disinherited without an express devise or necessary implication, such implication imputing not natural necessity, but so strong a probability that an intention to the contrary cannot be supposed.” Again, in Quinn v. Harden-brook, 24 N. Y. 86, it is said : “ The rule is peremptory that the heir shall not be disinherited, unless by plain and cogent interference arising from the will.” I deem it further settled that the word “ heir,” as used in this clause of the will, refers to the heirs of the body, the lineal descendants of the two sons. Bundy v. Bundy, 38 N. Y. 419 ; Thurber v. Chambers, 66 id. 47; Smith, v. Scholtz, 68 id. 59. Applying these principles, what was the intent of the testator ? The words, “ after the death of my two sons and their heirs, if they shall have any.” must have been used for some purpose. The construction asked for by the counsel for the collateral relatives would practically blot these words out of the will. At the time of the making of the will the testator was an old man, and his brother and sisters were also old, and owned farms and property of their own. His two sons were living with Tim, and in good health. They had no property other than what their father gave them by his will. He was fond of them. In his will he had already made provision for his brother and sisters, and it was evident from the ages of these brothers and sisters that they must in all probability be dead before the death of the two sons. In the event of their death, the property, according to the contention of the counsel for the collateral relatives, would descend to the children and grandchildren of the deceased brother and sisters of the testator. I cannot believe that the testator intended to disinherit the heirs of his own body for the purpose of giving the property to his brother’s and sister’s children and grandchildren, whom he had never seen or known, and some of whom were not in existence. The language of the will, “ After the death of my two sons and their heirs, if they have any,” clearly shows the intent to be that, if these sons had children their children should take the property, and only in the event of the extinction of the testator’s lineal descendants should the property go to the collateral heirs. The heirs of his sons take what would go the brother and sisters if there were no heirs, viz. the corpus of the property in fee. The case is one of an estate created, not by express or direct gift, but inferred from language which shows an intention to give the estate, and can have no other reasonable explanation. The authorities cited by the counsel for the two children are conclusive to my mind that the two children of Alonzo take the entire property absolutely in fee. In the case of Prindle v. Beveridge, 7 Lans. 225, one clause of the will was as follows : “ I allow my son Joseph to possess by devise of will the farm I now live on during his natural life ; but, if he leaves no legitimate heirs, then the property is to revert” to another son. In the opinion, at page 228, the court says : “ The authorities seem to favor the position that by implication the farm was devised to the legitimate heirs of Joseph.” And in the opinion affirming this case, in 58 IT. Y. 605, the court say: The law would imply a devise in fee to the children of Joseph living at the time of his death, and thus give effect to the intent to provide for them in case any should be left by — that is, who should survive — Joseph, the first taker, and to limit the estate of Joseph to a life estate, and carry the remainder to David upon the happening of the contingency.” See, also, In re Vower's Will, 113 N. Y. 571 ; 28 St. Rep. 715 ; Marsh v. Hague, 1 Edw. Oh. 180. We believe the construction given is required by the terms and general scope of the will and manifested express intent of the testator and is warranted by all well-established principles relating to the construction of wills. Having reached this conclusion, it is unnecessary to pass upon the other questions raised by the counsel for the collateral heirs. Ho question is raised on this accounting as to the correctness of the account of the exec utor, or as to any other part of the will, except in the legacy of $200 to Maria Roberts, a sister of the testator. She died during the lifetime of the testator, and, not being a descendant of the testator, the legacy therefore lapsed, and her heirs are not entitled to it. I therefore order that a final decree be entered settling the accounts of the executors as filed, and directing that the income, of the entire property accrued at the time of the death of Alonzo be paid over to the executor of the will of Alonzo, and that said decree further direct that William L. Moore and Phoebe R. Moore, the infant children of Alonzo S. Moore, are each entitled to one-half of the balance of the personal property, principal and interest, and that the same be paid over to the general guardian of said infants ; that the costs and expenses of the executor in these proceedings and the fees of the special guardiaas of the infants be paid out of the estate, and the counsel for the two children be allowed costs, payable out of the estate.

Ordered accordingly.


author: O’Brien, J. Yan Brunt, P. J.

text:
    William Lewis Boyle, App’lt, v. Staten Island and South Beach Land Company, Limited, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 17, 1895.)

    1. Tbial — Consolidation or actions.
    Under section 817 of the Code, it is error before answer to consolidate two actions against a corporation, one on coupon notes issued by it, and the other for money alleged to have been paid out for its use.
    2. Same.
    In such case, the motion to consolidate will be denied'with leave to renew after issue joined.
    Appeal from an order of consolidation.

      Willard Parker Butler, for app’lt; Robert L. Harrison, for resp’t.
   O’Brien, J.

The first action is brought to recover the amount of interest coupons on certain negotiable promissory coupon notes issued by the defendant corporation and payable to the bearer. The second action is brought to recover for moneys alleged to have been paid out to the use of the defendant Before answering, and upon an affidavit of one of the directors and principal owners of the stock of the defendant, averring that the plaintiff is not the owner of the interest coupons sued upon in the first action, and that the defendant is not indebted to the plaintiff in any sum in the second action, but that, on the contrary, the plaintiff is indebted to the defendant in a large amount, as will appear upon an accounting (the claim being that the plaintiff was the agent of the defendant, and manager of the real estate constituting the property of the defendant, the object of which was to manage, develop, and sell real estate), a motion for the consolidation of both actions into one was made.

Section 817 of the Code of Civil Procedure provides that, “ where two or more actions in favor of the same plaintiff and against the same defendant, for causes of action which may be joined, are pending in the same court, the court may in its discretion by order consolidate any or all of them into one action.” No-doubt, both of these actions, being upon contract, could be joined in one complaint; but this is not necessarily controlling upon the question whether they should or should not be consolidated. If the issues or the questions arising were different, or if, for any other good and sufficient reason, it was not proper for the court to-exercise its discretion in favor of granting the motion, it should have been denied. Whether the issues and questions will be-identical cannot be determined definitely until the answers are interposed. For this reason, we think it the better practice to wait, before making a motion to consolidate until after the interposition of answers, because it is only then that the issues are definitely determined, and thus the court is in'a better position to determine upon the identity of issues or questions involved in two or more actions sought to be consolidated. Here the first action, being to recover upon coupons, is affected by section 1778 of the Code ; and therefore, in pursuance to such section, “ unless the defendant serves with a copy of his (its) answer or demurrer a copy of an order of the judge directing that the issues presented by the pleadings be tried, the plaintiff can take judgment as in case of default in pleading.” By the order of consolidation, no effect is given to this section, because, without answering, the defendant has obtained an order directing that the issues be tried in connection with another suit brought against it by the plaintiff upon a different cause of action, and without its being made clearly and definitely to appear that the questions or issues to be tried are the same. Even assuming that the defense outlined in the affidavit, that the plaintiff is not the owner of the coupons, be interposed, the action upon the coupons is one that can be tried upon the short-cause calendar before a jury ; whereas in the other action, if an accounting is to be entered upon to determine whether the plaintiff is indebted to the defendant or the defendant to the plaintiff, it may involve the examination of a long account, and be referable. Unless, therefore, it appeared that the accounting which the defendant intended by its answer to demand of the plaintiff as its agent was in some way connected with the obtaining and possession of the coupons in his like capacity as agent,, the similarity between the questions involved is wanting.

We think, upon the showing made, the motion should have been denied, and that the order appealed from should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs, but with leave to renew after issue joined.

Follett, J., concurs.

Yan Brunt, P. J.

I dissent from so much of this opinion as proposes to grant leave to renew.


author: Van Brunt, P. J.

text:
    Luz Diaz Govin, Resp’t, v. Luciana Govin De Miranda et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 17, 1895.)

      1. Bill or particulars — Denial.
    The fact that a motion for a bill of particulars has been denied before answer affords no ground for the denial of a similar motion after answer.
    2. Same — Action to admeasure dower.
    In an action for the admeasurement of dower, the defendant is entitled to a bill of particulars, stating whether the plaintiff’s marriage with the decedent was ceremonial, and, if so, when and where performed and by whom ; and, if a non-ceremonial marriage, when and where it was contracted.
    Appeal from an order, denying a motion for a bill of particulars.

      Cephas Brainerd, for app’lts; A. Kling, for resp’t.
   Van Brunt, P. J.

This action is brought for the admeasurement of dower. The issue raised is as to the marriage of the plaintiff. A motion was made for a bill of particulars as to the date of the marriage, where it took place, the name or designation of the clergyman or magistrate who performed or celebrated such marriage, and the names of the witnesses and other persons present, and if such marriage was evidenced by any agreement in writing, that the plaintiff be required to produce and serve a copy thereof, or, if there were any agreement or settlement upon the plaintiff or release of dower, to state its terms. This motion was denied, and from the order thereupon entered this appeal is taken.

Prior to answer, a somewhat similar motion was made and denied; and it is claimed that this motion should be denied at the present time for the same reasons then advanced, and also upon the ground of loches. There does not seem to be any claim of loches in the .service of the notice of motion, but in the hearing of the motion. It may be said that the motion could not have dragged its weary length along without the active co-operation of both parties; and, if there has been loches upon one side in bringing the notice motion to argument, there has been equal loches upon the other side in not having the same disposed of. The fact that a motion had been denied before answer affords no ground for the denial of a similar motion after answer. In respect to the marriage, the defendant could answer without any bill of particulars. A simple denial of the marriage makes a complete issue, which will protect the defendant. It may, however, be necessary for the defendant in order to properly prepare for the trial, to be informed as to when and 'where and what kind of a marriage is claimed. If a party sues upon an ordinary contract, the defendant is entitled to know when and where it was made; and, if a party sues upon a contract of marriage, the defendant is equally entitled to the same information. The defendant in this action was entitled to know whether it was a ceremonial marriage, and, if so, when and where performed, and by whom; and if a nonceremonial marriage, when and where it was contracted. She probably was not entitled to be furnished with the names of the witnesses by which the plaintiff proposes to establish her cause of action, but the other matters above mentioned clearly come within the ordinary scope of bills of particulars.

The observations contained in the opinion handed down at the last term of this court on the determination of a similar motion in the case of Bullock v. Bullock, 66 St. Rep. 493, may perhaps be applicable to the case at bar. We think that the motion should have been granted as far as indicated in this opinion. The service of a bill of particulars as above required should not in any way curtail the plaintiff’s right to introduce circumstantial evidence or evidence of admissions to establish such marriage.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, as above stated.

All concur.


author: Per Curiam.

text:
    Luz Diaz Govin, Resp’t, v. Luciana Govin De Miranda et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 17, 1895.)

    Appeal from an order, denying a motion for a bill of particulars.

      Cephas Brainerd, for app’lts ; A. Kling, for resp’t.
   Per Curiam.

For the resons stated in the opinion in Govin v. De Miranda (decided herewith) 67 St. Rep. 426, the order appealed from should be reversed, with ten dollars costs and disbursements and the motion granted, as therein stated.


author: O'Brien, J. Follett, J.

text:
    David Gideon, Resp’t, v. Philip J. Dwyer, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 17, 1895.)

    Slander — Actionable per be.

    Language charging a person, engaged in raising and racing horses, with having committed turf fraud and having been warned off the turf for crooked practices thereon, is actionable per se.

    Appeal from an interlocutory judgment, overruling a demurrer to the complaint.

      P. H. McCarren, for app’lt; Ott Horwitz, for resp’t.
   O'Brien, J.

The action is for slander. The complaint alleges : That plaintiff is an owner and breeder of thoroughbred horses for racing purposes. That he owns a stock farm, where horses, are raised and bred. That his business is, and has been for many years, the selling of such horses, and entering and running the same in races lawfully conducted and carried on by various associations in this state and elsewhere ; and that he has always enjoyed and maintained a good and honorable name and reputation . for honesty, fair dealing, and straighforwardness in all transactions connected with his said business. That under the rules of the various racing associations aforesaid, nearly all of which are controlled by a single central association, in order to entitle an owner ■ of horses to enter them for prizes it is necessary that he shall not have been guilty of or concerned in any fraudulent practices on the turf in this ‘or any other country. That any dishonesty or “ crookedness ” in racing by any owner at the track of any association would be taken cognizance of by the central organization, and would tend to disqualify such owner from making entries, and lead to the disqualification for racing purposes of all horses owned by him, and thereby render his property valueless for racing purposes. That in racing parlance such disqualification is known as being “ ruled off the'turf." That on June 30, 1894, at a race course, in the presence and hearing of a number of persons, the defendant spoke of and concerning and to the plaintiff and concerning his said business, in a loud and offensive voice, the following false and defamatory words in substance :

“You are no sportsman. You had to leave Nashville on account of a turf fraud you committed there. President Clark, of the Louisville Jockey Club, wanted to rule you off for your crooked practices there, and warned you off the turf there, and you had to leave town.”

And that by reason of the premises the plaintiff was prejudiced and injured in his good name, fame reputation, character, and business.

The defendant demurs on the ground that the complaint does not state facts sufficient to constitute a cause of action. The defendant contends that the words were not of themselves actionable, and, that, therefore, the plaintiff cannot recover without proof of special damage, which is not alleged. The question, therefore, underlying the demurrer is, were the words thus spoken of and concerning the plaintiff actionable per se ? The general rule is, that defamatory language, without proof of special damage, is not a sufficient statement of a cause of action, except in certain specified instances, all of which it is notnecessaay hereto enumerate,it being sufficient to confine ourselves to the one exception which relates to words spoken of one in relation to his office, profession, or trade. As said in Folkard on Libel and Slander (5th ed. p. 80): ■

“An action of slander may be maintained without proof of damage in the following cases: * * * Third. If any injurious imputation be made affecting the plaintiff in his office, profession, or business.”

And at page 117 :

“ To enumerate the different decisions upon this subject would be tedious, and to reconcile them impossible; yet they seem to yield a general rule, sufficiently simple and unembarrassed, viz. that words are actionable without proof of special damage which directly tend to the prejudice of a man in his office, profession, trade, or business.”

In Moore v. Francis, 121 N. Y. 199; 30 St. Rep. 467, Judge Andrews in the course of the opinion, reviewing the authorities, says (page 203, 121 N. Y):

“ Defamatory words, in common parlance, are such as impute some moral delinquency or some disreputable conduct to the person of whom they are spoken. Action of slander, for the most part, are founded upon such imputations ; but the action lies in some cases where the words impute no criminal offense, where no attack is made upon the moral character, nor any charge of personal dishonor. The first and larger class of actions are those brought for the vindication of reputation in its strict sense against damaging and calumnious aspersions. The other class fall, for the most part at least, within the third specification in the opinion of the Chief Justice De Grey, of words which tend to injure one in his trade or occupation. The case of words affecting the credit of a trader, such as imputing bankruptcy or insolvency, is an illustration. The action is maintainable in such a case, although no .fraud or dishonesty is charged, and although the words were spoken without actual malice. The law allows this form of action, not only to protect a man’s character as such, but to protect him in his occupation, also, against injurious imputations. It recognizes the right of a man to live, and the necessity of labor, and will not permit one to assail by words the pecuniary credit of another, except at the peril, in case they are untrue, of answering in damages. The principle is clearly stated by Bayley, J., in Whittaker v. Bradley, 7 Dowl. & E. 649 : ‘ Whatever words have a tendency to hurt or are calculated to prejudice a man who seeks his livelihood by any trade or business are actionable.’ When proved to have been spoken in relation thereto, the action is supported, and, unless the defendant shows a lawful excuse, the plaintiff is entitled to recover without allegation or proof of special damage, because both the falsity of the words and resulting damage are presumed.”

The defendant does not contend against these elementary principles of the law of slander, but claims that the words themselves clearly show that they were spoken of the plaintiff, not as a business man, but as a sportsman or patron of the turf, and therefore are not in themselves actionable. We cannot, however, agree with the defendant in this contention. As well said by the learned judge below:

“ The defamatory words were not confined to the plaintiff’s character as a sportsman. They also charged him with the commission of turf frauds. Now, it is distinctly averred that the plaintiff is engaged in the business of raising and selling horses, and of entering and running horses in races lawfully conducted by various racing associations in this state and elsewhere. To say of such a man that he had committed turf frauds, and that he was-warned off the turf for crooked practices thereon, is clearly to defame him in the business thus set out They tended to prej udice him therein. To use the language of the books, ‘ they touched, him in his business.’ ”

We think this a correct expression of the law ; and while the language, if used with reference to one not engaged in the "occupation of raising and racing horses, or concerning whom it was not. alleged in the complaint that he was so engaged, might not be-slanderous per se, we think that, not only under our code pleading, but under the stricter system of pleading that prevailed prior to-its adoption, the complaint stated a good cause of action, the introduction and explanation showing the business of the plaintiff and the meaning of the words, thus definitely connecting the words spoken with the plaintiff’s business. What was said in Kinney v. Nash, 3 N. Y. 182, is here applicable:

“ The words spoken as alleged in this case derive their actionable quality from their relation to facts and circumstances extrinsic of the words themselves. In such case the plaintiff must, as he has done here,, by way of introduction or inducement, state those facts and circumstances ; then aver that the words spoken related to those facts and circumstances by ‘laying a colloquium/ as it is called ; and lastly, by innuendoes connect such words as-need explanation with the facts and circumstances previously-stated in the declaration.”

Without observing this formal or technical order of stating the facts, the plaintiff here has stated the facts and circumstances; and clearly and definitely, by proper explanations of the meaning-of the words, and by a statement of the character of his business, has connected the facts and circumstances with the words used, and, in addition, alleged (but which without such allegation would be inferred) that they tended to injure and prejudice him in his-business. With the light thus afforded by “ facts and circumstances extrinsic of the- words themselves,” accompanied by a statement as to the place and persons in whose hearing they were uttered, we think the conclusion follows that they were certain to-be accepted by those who heard them, not simply as meaning that the plaintiff was a mere “ patron of the turf,” without any business connection with it, who was to be shunned or avoided, but as-directly and seriously reflecting upon his reputation for honesty on the turf, — i. e., in the way of his occupation or profession of horse racing. The complaint alleges that at the" time the words were spoken the plaintiff carried such profession or trade, and the words tended to prejudice him therein. It was not necessary, therefore, to show special damage. In the case of Greville v. Chapman, 8 Jur. 189, 5 Q. B. 731, the defendant imputed to the plaintiff that he had entered ahorse for a certain stakes, at Epsom, and had afterwards fraudulently withdrawn the horse, for the purpose of obtaining an unfair advantage over other persons, with whom he had made heavy wagers on the result. Held that the action would lie, and this whether or not the transactions in. which the declaration showed the plaintiff to be engaged were illegal. In Yrisarri v. Clement, 3 Bing. 442 ; 11 Moore, 308, it was held that-an action does not lie for anything that may be said of the plaintiff’s conduct in an illegal transaction; but for misconduct imputed to him in any matter independently of the illegal transaction, though the slanderous words arise out of it, an action for slander would lie. And in Foulger v. Newcomb. L. R. 2 Exch. 327, it is said that words spoken imputing to a man misconduct in his office or trade are actionable, although the office or trade is one of which the court cannot take judicial notice. Here the plaintiff alleges that he was engaged in raising and selling horses, and also in racing them for stakes and purses; and we have referred to the above cases for the purpose of showing that,, although a discussion might be provoked as to whether racing horses for money was a lawful occupation, this, though resolved against the plaintiff, would not be conclusive, because that was but one part of his business, which consisted also in the breeding and raising of race horses, which might or might not be entered in races by him, and mignt or might not engage in races for money or in an illegal way. And, as the language would have a tendency to prejudice him in his whole business, we think that, regardless of this consideration of whether racing horses for money is or is not at common law a lawful employment, the plaintiff has made a showing that-the words were slanderous per se¡ and it was not necessary, therefore, to allege special damages. As, in our opinion, a good cause of action was stated in the complaint, the judgment overruling the demurrer thereto should be affirmed, with costs, but with leave to defendant to answer over within twenty day's on payment of costs.

Vajst Brunt. P. J., concurs.

Follett, J.

(dissenting). — By this action damages are sought to be recovered, because the defendant on the 30th of June, 1884, on a race track in this state, said in the hearing of divers persons that the plaintiff had on a particular occasion violated the ethics, of the race course at N ashville, in the state of Tennessee. The words complained of are:

“ You are no sportsman. You had to leave Nashville on account of a turf fraud you committed there. - President Clark, of the Louisville Jockey Club, wanted to rule you off for your crooked practice there, and warned you off the turf there, and you had to leave town.”

The words uttered are not slanderous per se, and it is not alleged that the plaintiff sustained special damages by reason of the words spoken. It is urged that the words are slanderous, because they touched the plaintiff in his business, and injured his business reputation. To say of a person, in the presence of others, “ You are no sportsman,” is not slanderous as tending to injure the person in his business, trade, or calling, because no such occupation is recognized by the law of this state. The words uttered do not relate to the appellant’s business as a breeder or seller of horses, but solely to his conduct on a race course at Nashville,. Tenn. Is the running of horses on race courses recognized by the law of this state as a legal business or occupation ? If it is not, the plaintiff cannot recover damages for words derogatory of his conduct in racing horses. Since the enactment of chapter 44 of the Laws of 1802, the racing of horses for bets or stakes in money or property has been generally condemned as gambling, and punished as a crime. This statute was continued by 1 Rev. Laws 1813, p. 222. To this general statute there was no exception until the passage of chapter 193 of the Laws of 1821, which provides:

That from and after the passage of this act, the training, pacing, trotting and running of horses, upon regulated courses, and upon private property, in the county of Queens, is hereby declared to be exempted and freed, for and during the period of five years from the passage of this act, from the provisions and penalties of the act entitled 1 An act to prevent horse racing and for other purposes.” (Laws 1802, chap. 44).

By chapter 108, Laws 1826, this act was continued in force until March 30, 1836, and by chapter 73, Laws 1834, it was continued in force until March 30, 1851. In 1828. the provisions of the Revised Laws, slightly changed, became a part of the Revised Statutes. Chapter 44, Laws 1802, was repeated by chapter 21, Laws 1828 (2d meeting) p. 69 (1 Rev. St. p. 672, § 55). The following is a copy of the section :

“Sec. 55. All running, trotting or pacing of horses, or any other animals, for any bet or stakes, in money, goods, or other valuable thing, or for any reward to be given to the owner or rider of any animal which shall excel in speed, excepting such as are by special laws for that purpose expressly allowed,- shall be deemed racing within the meaning of this article, and are hereby declared to be common and public nuisances and misdemeanors ; and all parties concerned therein, either as authors, betters, stakes, stakeholders, judges to determine the speed of the animals, riders, contrivers or abettors thereof, shall be deemed guilty of a misdemeanor, and shall be punished by fine not exceeding five hundred dollars, or by imprisonment not exceeding one year.”

It will be observed that races conducted under special laws were not deemed to be within the section. While chapter 193, Laws 1821, and the Revised Statutes were in force, two cases arose over the validity of contracts entered into in respect to the racing of horses in Queens county, and it was held that chapter 193 did not validate racing-track contracts, but simply exempted the parties engaged in racing from the operation of the criminal law. Gibbons v. Gouverneur, 1 Denio, 170, Ruckman v. Bryan, 3 id. 340. In Harris v. White, 81 N. Y. 532, decided in 1880, it was held that the terms “bet or stakes” used in the Revised Statutes, did not include “purses, prizes, or premiums,” as these words are now commonly understood, and that one who had contracted to drive the horses of anothér for purses, prizes, or premiums on race courses could recover his wages. The Penal Code took effect December 1, 1882, and contains the following provision :

“Sec. 352. Racing of animals for stake — All racing or trial of speed between horses or other animals for any bet, stake or reward, except such as is allowed by special laws, is a public nuisance; and every person acting or aiding therein, or making or being interested in any such bet, stake or reward, is guilty of a misdemeanor ; and in addition to the penalty prescribed therefor, he for- , felts to the people of this state, all title or interest in any animal used with his privity in such race or trial of speed, and in any sum of money or other property betted or staked upon the result thereof.”

This section superseded section 55 of the Revised Statutes, which was expressly repealed by chapter 593, Laws 1886. In 1887 the so-called “Ives’ Pooling Laws” was passed (chap. 479, Laws 1887), section 4 of which provides :

“Sec. 4. The number of days upon which races may be conducted upon any race track or grounds is limited to thirty days in each year, and during that number of days only races shall be authorized and allowed upon such tracks or grounds during which time the same may be kept open for the admission of the public, subject to the conditions and limitations prescribed by the acts or the several amendments thereto under which the said associations were incorporated, and the provisions of sections three hundred and fifty-one and three hundred and fifty-two of the Penal Code shall not apply to the grounds of such associations "during the number of days in each year during which the said races are hereby authorized; that such racing and all pool selling in this state shall be confined to the period between the fifteenth day of May and the fifteenth day of October in each year, and all pool selling shall be confined to the tracks where the races take place, and on the days when the races take place.”

So far as this statute authorizes pool selling it has been held to be unconstitutional by the general term of common pleas, Irving v. Britton, 8 Misc. Rep. 201; 58 St. Rep. 836, and constitutional by the general term of the fourth department, Reilly v. Gray, 77 Hun, 402 ; 60 St. Rep. 45. In 1890 a case arose in which the plaintiff sought to recover the amount of his winnings on pool tickets purchased from a racing association, and it was held that under chapter 479, Laws 1887, such contracts were validated, and a recovery could be had. Brennan v. Association, 56 Hun, 188; 30 St. Rep. 406. In Corrigan v. Jockey Club, 15 Supp. 705, a mandatory injunction was granted, compelling the defendant to perform its contract, and permit the plaintiff’s horses to run for a prize in a particular race. I am unable to discover any difference in principle between chapter 479, Laws 1887, and chapter 193, Laws 1821, under which Gibbons v. Gouverneur, supra, and Ruckman v. Bryan, supra, were decided. These cases are not expressly overruled in 56 Hun, 188; 30 St. Rep. 406, and 15 Supp. 705, nor were they referred to in 56 Hun, 188; 30 St. Rep. 406. It seems to me that the only effect of the Ives’ pooling law is to suspend. the operation of the penal provisions of the Code during a limited period, and that it does not, and was not intended to, validate racing contracts, or to recognize horse racing for bets, wagers, purses, prizes, rewards, or premiums as a legal business or occupation.. The winning or losing of less than $25 within the space of twenty-four hours is not a misdemeanor (Penal Code, § 341), but it has never been held that so winning or losing is not gambling, or that, contracts made in such games can be enforced.

For a further reason a cause of action is not stated in the complaint. The words alleged to be actionable are: “You are no-sportsman,” “a turf fraud you committed there,” and “your crooked practices there.” These terms are ambiguous, and no court, I think,, will take judicial notice of the meaning of any one of them. The-word “there,” in one instance refers to a transaction on a race course at Nashville, and in the other instance, probably, to a race at Louisville, Ky., conducted by the Louisville Jockey Club. Before a court could take judicial notice of the local meaning of these terms, it would have to be familiar with the rules and regulations of the Nashville race course and of the Louisville Jockey Club, and I assume that the judges of this state are not so familiar with the rules of those distant racing associations as to be able to-determine what acts are “crooked practices” or “turf frauds” under those rules. When words of a foreign language or ambiguous, words are alleged to be defamatory, their meaning must be averted in the complaint by an appropriate innuendo. Pike v. Van Wormer, 5 How. Pr. 171; Fry v. Bennett, 5 Sandf. 54, 66 ; Moak, Van Sant. PI. 209. I think, if the meaning of these terms had been alleged in the complaint, that it would be beneath the dignity of the supreme court to engage in an investigation of the rules of race courses for the purpose of determining whether or not the plaintiff had been guilty of “crooked practices” or “turf frauds” under their rules. Sportsmen wrongfully charged on race tracks with unsportsman like conduct, or with turf frauds, in violation of the rules of race courses, should be content with such renedies as are provided by the rules of the turf.

The judgment should be reversed, the demurrer sustained, and a final judgment entered dismissing the complaint, with costs.


author: Brown, P. J.

text:
    Charles W. Strader, Resp’t, v. New York, Lake Erie and Western Railroad Company, App’lt.

      (Supreme Court General Term, Second Department,

      Filed May 13, 1895.)

    Master and servant — Fellow.
    A switchman, employed by a railroad company, is not the fellow servant of trainmen of another company using the same track, where such switch-man is hired and paid by the former company and is under the exclusive direction of its superintendent, and the latter company has no voice in his-selection, and can neither discharge nor direct him in his work.
    Appeal from a judgment entered on a verdict in favor of and from an order a motion for a new trial.

      Lewis E. Carr, for app’lt; O'Neil & Royce, for resp’t.
   Brown, P. J.

This action was to recover damages for personal injuries alleged to have been caused by the defendant’s negligence. The plaintiff was a locomotive engineer employed by the Pennsylvania, Poughkeepsie & Boston Bailroad Company, and was injured while running a train over the defendant’s road near Orange Farm station. The accident was caused by an open switch, which permitted the plaintiff’s train to leave the main track, and the engine to be thrown down an embankment. The testimony introduced by the plaintiff permitted the conclusion by the jury that a short time prior to the accident the man who had charge of the switch had been engaged in making some repairs upon it, and that he had left it open; and the ground mainly relied upon by the appellant for a reversal of the judgment, and the only one which we deemed it necessary to consider, is that the switchman was a co-employe with the plaintiff, and for that reason the court' erred in denying a motion to dismiss the complaint. The accident occurred upon the Goshen & Deckertown Bailroad, which extended from Goshen to Pine Island, in the county of Orange. This road was leased to defendant, and was used by the Poughkeepsie & Boston Company under and pursurnt to an agreement with the defendant and the validity of the ruling of the trial court depends upon the construction to be given to this agreement. It bears date August 2, 1889, and granted to the Boston Company “ the right to use * * * the railroad track of the- Goshen & Deckertown Bail-road” jointly with the defendant. It provided that during the continuance of the agreement the Boston Company should pay to the defendant a stipulated proportion of the rental of the road, and the expense of maintaining and renewing the tracks, bridges, and the property used jointly by the two companies, including the wages of yard master, switchmen, train dispatchers, flagmen, and other servants. It further provided that “ the railroads and persons included hereunder shall be maintained and operated under the control of the superintendent of the Erie Company,” who in matters pertaining to the maintenance of the property was to be “under the exclusive direction of the Erie Company.” “The employes engaged in conducting the business hereunder being joint employes, and being paid by each party in proportion to the business done by such party, it is agreed that each party shall be responsible for the acts of such joint employes when engaged in that party’s business; and * * * the Erie Company shall incur no additional responsibility from the fact that such employes are hired or paid by it.” We are of the opinion that under this agreement the switchman or track walker who had the charge and care of the switch in question was not the servant of both companies. He was hired and paid by the defendant, and was under the exclusive direction of its superintendent. The Boston Company had no voice in his selection,. and could neither discharge him nor direct him in his work. The provision of the contract that each company should be responsible for the acts of the employes only when engaged in such company’s business had no relevancy to the accident to the plaintiff. The Boston Company had no control over the maintenance of the road. The duty devolved, under the contract, solely upon the defendant. The sole right which the Boston Company had was a right to use the tracks. The control of the road, and the maintenance of tracks, and their charge and control, remained in the defendant. The switchman was its servant, and for damages resulting from negligence the defendant was liable.

The judgment must be affirmed, with costs.


text:
    Harlem Bridge, Morrisania and Fordham Railway Company, App’lt, v. Town Board of Westchester County et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed May 17, 1895.)

    Appeal — Stipulation.
    A stipulation that the discontinuance of the action should be without prejudice to the rights of the parties, may be considered on an appeal from an order granting an extra allowance, made after such discontinuance.
    Appeal from orders granting extra allowances.

      W. N. Cohen, for app’lt; A. B. Cruikshank, for resp’ts.
   Van Brunt, P. J.

This action was begun in June, 1892, for the purpose of obtaining an injunction to restrain the defendant from interfering with the plaintiff in building and operating a street-surface railroad, etc. A preliminary injunction was granted at the commencement of the action pending .he hearing of a motion to continue the same pendente lite. Upon argument this motion was granted, and an order continuing the injunction during , the pendency of the action was entered. An appeal from such order was taken to the general term. Issues of fact were joined by the service of answers of all the defendants except two, who demurred on the ground that the complaint did not state facts sufficient to state a cause of action. Subsequently a motion for discontinuance was made by the plaintiff, and would seem to have been granted by an order dated February 27, 1893, which does not appear to be contained in the record. On the 7th of March, 1893, an order was entered reciting that upon reading the order of February 27,1893, and upon reading another order of the 7th of March, 1893, vacating the injunction order (which last-mentioned order is also conspicuous for its absence from the record), and upon reading and filing two certain bills of costs adjusted upon notice, and the receipt by defendants’ attorneys of the due payments by plaintiff's attorneys of said costs, and reciting that it appeared that the terms imposed by one of the previous orders bad in all respects been duly complied with by said plaintiff, except as to the extra allowance to be thereafter disposed of, and that the plaintiff was, under the provisions of said order, entitled to the final order of discontinuance therein, it was ordered that the action be discontinued without further costs to either party as against the other. The defendants thereupon moved for extra allowances, and such motions were denied, and orders entered thereon. An application was subsequently made to the justice who had decided the motions to resettle the orders so as to contain leave to renew the motions, which was denied. It does not appear that any order was entered upon such denial. The defendants then moved for leave to renew the original motion upon additional affidavits, and also for the relief originally asked for. Leave to renew was granted, and the motion for an extra allowance was also granted. From the orders granting the allowance the plaintiff appealed to the general term. These orders were reversed by the general term on the ground that the court had no power to grant an extra allowance after the action had been discontinued. An appeal from the order of the general term was thereupon taken to the court of appeals; and to the return of the court of appeals was annexed a stipulation, which did not appear in the record upon the hearing before the general term, and was not presented to the general term, which facts appear upon the face of said return to the court of appeals. The court of appeals held that the judgment of the general term upon the record and facts before it was correct; but, because of the existence of this stipulation, which did not appear in the record before the general-term, and was not presented to such court, its judgment was reversed. 143 N. Y. 59 ; 60 St. Rep. 349.

It has long been the settled rule in our state that an appellate tribunal may permit a record to be produced on argument in the appellate court. But this was allowed only for the purpose of sustaining a judgment, and was never permitted for the purpose of reversing one. Stillwell v. Carpenter, 62 N. Y. 639; Porter v. Waring, 69 id. 255; Day v. Town of New Lois, 107 id. 157; 11 St. Rep. 361; Dunham v. Townshend, 118 N. Y. 286; 28 St. Rep. 864. This authority seems'to have been limited to the receipt of records, such as records of judgments, bankrupt discharges, and certificates of naturalization ; and evidence of this character was received by the appellate court for the reason that, being in its nature uncontrovertible, it would be idle to send the case back for a new trial for'the sole purpose of admitting it. There does not seem to have been any authority whatever for the admission of evidence of any other character, and in the case of Porter v. Waring, supra, such a limitation seems to have been specially noticed. In the case at bar, for the purpose of reversing the judgment of the general term, the appellate court has received a stipulation which was not in the record before the general term, which was not recited in the order of discontinuance which was the foundation of the judgment of the general term, of which, therefore, the general term could have no knowledge, and which it could not consider. This seems to have established a different rule from that which has heretofore obtained in this state in respect to the receipt of evidence by an appellate tribunal. FTot only is evidence received of a character essentially different from that to which this privilege has hitherto been confined, but it is also admitted, not for thé purpose of supporting a judgment, as has heretofore been the rule, but for the reversal of such judgment. In view of the conclusion arrived at by the court of appeals upon the previous appeal, we think that the orders appealed from must be affirmed, with costs.


author: Parker, J.

text:
    Alfred S. Heldelbach, as Survivor, etc., Resp’t, v. National Park Bank of New York, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 17, 1895.)

    1. Trusts — Deposit in bank.
    Where a person, holding money in a fiduciary capacity pays it to his account at his bankers and mixes it with his own money and afterwards draws out some by checks generally and in the ordinary manner, he must be taken to have drawn out his own, in preference to the trust money.
    2. Set-off — Unmatuiied claim.
    In the absence of a contract between the depositor and the bank, the latter has no right to retain the balance of a customer’s deposit to pay or apply upon an indebtedness of a customer to the bank, not yet matured.
    3. Same.
    Where a bank discounts for the apparent owner a draft and places the proceeds to his credit, without knowing that another person is entitled thereto, and, while part of the proceeds remains to the apparent owner’s credit, the real owner notifies the bank of his claim, the bank cannot set off against the latter’s claim to such balance a claim against the former on paper discounted before the draft, but maturing after notice of the latter’s claim.
    4. Remedies — Election.
    A party, who has several consistent remedies for the same debt, may resort to them all, though he can have but one satisfaction.
    Appeal from a judgment in favor of plaintiff.
    The plaintiff’s firm, on the 21st day of July, 1887, opened a credit of £10,000 sterling with 0. J. Ilambro & Son, who were their correspondent bank in London, in favor of E. S. Wheeler, under his firm name of.E, S. Wheeler & Go., the credit to be used for the purchase of merchandise in Europe. Thereafter, under said credit, Wheeler purchased in England, and shipped to the Hall & Willis Hardware Company at Kansas City, 600 boxes of tin plates, for which said O. J. Hambro & Son paid, under the authority of said letter of credit, the sum of £815. 8s. sterling, and took the bill of lading and consular invoice of the merchandise so purchased as evidence of title thereto. The bill of lading and consular invoice were, pursuant to the terms of credit, duly forwarded to the plaintiff’s firm, into whose possession they came about August 27, 1887, and in the due course of business plaintiff’s firm paid for the 600 boxes of tin plates. By virtue of the credit of £10,000 sterling, and tlie transaction to which we have referred had in pursuance thereof, the plaintiff’s firm became the owners of the tin plates on or prior to the date last named. After the plaintiff’s firm came into the possession of the bill of lading and invoice, and on August 27, 1887, they intrusted them, together with the merchandise represented thereby, to E. S. Wheeler & Go. upon the terms and conditions expressed in a contract or trust receipt, of which the following is a copy :
    “ New York, August 27th, 1887.
    “ Messrs. Heidelbach, Ickelheimer & Go. — Gents: We ac-
    knowledge the receipt from you of invoice and bill of lading of the following goods, viz. 600 boxes tin plates, equivalent of eight hundred and fifteen pounds eight shillings sterling, shipped by B. S. Wheeler & Co. on board the Douro at Liverpool (and the receipt by us of all the goods mentioned in said bill of lading); and we hereby agree to hold the said goods in trust for you as your property until the proceeds thereof are actually turned over to you ; such goods being subject to your order, and subject to your rights as owners thereof. The delivery to us of the said bill of lading shall not operate as a waiver of your ownership of the goods therein described, nor a waiver of the due performance of the agreement in the receipt signed by us for your letter of credit by cable, dated July 21,1887, or any other letter of credit under which said goods may have been purchased. And we also agree to keep such goods covered by insurance against loss or damage by fire, by policies made payable to you in case of loss or damage, and to deliver such policies to you, and to keep the same renewed and in force. And, for value received, we further agree that you may at any time enter any place where the said goods are stored, and without process of law take possession of them, and store them in your name at some other place, without any claim of us for trespass or damage for so doing Without detriment to or impairment of your claim and rights to the goods themselves, such claim and rights shall also attach to the proceeds thereof, which shall, to all intents and purposes, be your absolute property until full satisfaction by payment shall have actually been made to you under the agreement of receipt of said letter of credit.
    “ Yours, respectfully, B. S. Wheeler & Co.”
    On the same day, ,Wheeler, under his firm name, drew his sight draft upon the Hall & Willis Hardware Company, of Kansas City, to whom he had contracted to sell the 600 boxes of tin plates for the purchase price thereof, being the sum of $3,974.46. This draft he deposited at once in defendant's bank, with the invoice and bill of lading for the tin plates attached thereto, and the defendant credited Wheeler’s account with a sum equal to the face value of the draft, less $4.56 deducted for discount. August 30th following, the Hall & Willis Hardware Company paid the amount of said draft to the Armour Bros. Banking Company, defendant’s agents for collection at Kansas City. Three days later defendant received from its Kansas City correspondent a draft on the Mechanics’ National Bank of the city of New, York for the full amount of the draft drawn on the Hall and Willis Hardware Company, and said draft was paid to defendant by the Mechanics’ National Bank, September 5, 1887. • On the same day Wheeler failed in business, and ever since has been insolvent. Two days later, and on September 7th, plaintiff’s firm notified the defendants that they were the owners of the tin and its proceeds under and by virtue of the trust receipt, and demanded the merchandise or its proceeds, which demand was refused. The daily balances of Wheeler at the National Park Bank from August 27th to September 2d were in excess of the sum of $3,974.-46, which was the face value of the draft in controversy, but on September 2d Wheeler’s daily balance was reduced to $2,159.98. For each of the following days until after the service of the notice and demand by the plaintiff’s firm upon the defendant, which occurred September 7th, Wheeler’s daily balance at the defendant bank was considerably in excess of the amount of the draft. September 8, 1887, plaintiff’s firm brought suit against Wheeler, in the superior court of the city of New York, to recover a large amount of goods, including the 600 boxes of tin plates which were the subject of the draft in controversy, purchased by Wheeler under the letter of credit issued to him by the plaintiff’s firm. The summons was served by publication only, and Wheeler entered no appearance therein, and judgment thereafter resulted in the alternative form for the goods or damages, and the 600 boxes of the plates were included therein. In January, 1888, the plaintiff’s firm presented to the commissioners of the estate of Wheeler, in New Haven, a statement of account between them and Wheeler, which included the indebtedness arising from the draft for ¿6815. 8s. sterling, and subsequently plaintiff’s firm received several dividends from such commissions on account of such indebtedness, aggregating the sum of $655.70. Judgment went against defendant at special term for the amount standing to the credit of Wheeler on the books of the National Park Bank on September 2d, which was $2,159.98, less the sum of $665.70, received by the plaintiff’s firm from the commissioners of the estate of Wheeler.

      R. D. Murray, for app’lt; John K. Creevey, for resp’t.
   Parker, J.

Under the terms of the trust receipt the plaintiff’s firm were the owners of merchandise sold to the Hall & Willis-Hardware Company, and were entitled to the proceeds. If the defendant had knowledge of plaintiff’s firm’s ownership when it received the draft from Wheeler and credited his account therewith, plaintiff’s right to recover the full amount would not be questioned. But it is not pretended that the bank had any notice at the time it discounted the draft, on August 27th, or at any time thereafter prior to September, that Wheeler was not the owner of the tin plates, or that any trust existed in favor of the plaintiff’s firm. By delivering the bill of lading and invoice to Wheeler, the plaintiff’s firm clothed him with the apparent authority of an owner, which was sufficient to protect the bank in dealing with him as such; and, had it paid to Wheeler the full amount of the draft at the time of the discount, an action could not have been maintained for the recovery of any part of it. And this is so, because a person, having power to sell and deliver merchandise to a good faith purchaser, may resort to the usual agencies for realizing the purchase money; and it follows that when such agencies advance money in good faith, and in the usual course of dealing, they are entitled to the same protection as the purchaser of the merchandise. If, however, such agency has not parted with the moneys, or changed its position by reason of the transaction, the real' owner may invoke the rule of equity that, where a person holding money in a fiduciary capacity misuses or misappropriates, it, the real owner can follow it so long as he can identify it, until it comes into the possession of one who in good faith parts with value for it. And where, as in this case, the party seeks to trace the proceeds of the property after it had been deposited in a bank with the individual money of the depositor, it is sufficient for the purposes of identification, and to retain the character of the proceeds as trust money, to trace it into the bank, and to show that it was there at the time notice was given of the plaintiff’s rights. Upon this view the learned judge at special term proceeded ; and finding, as he did,- that at the close of business on the 2d day of September the credit balance of Wheeler at the defendant bank was $1,809.92, less the amount of the proceeds of the tin draft, he held that the defendant had to that extent made payment to Wheeler on account of the draft; but the balance of the draft, being $2,159.98, with which he had been credited by the defendant, was still in its hands. As Wheeler’s credit balance with the defendant at the close of business on each of the days following down to and including the 7th of September was greater than the sum of $2,159.98, the court decided that to such extent the moneys of the plaintiff’s firm must be held to have been in the possession of the defendant at the time the plaintiff’s firm gave notice to it that the moneys belonged to them. The rule established by the court in reaching such result was, not to apply the first drawings out to first payments in, as in Claytons Case, 1 Mer. 580, but it assumed, on the authority of In re Hallett's Estate (Knatchbull's Case), 13 Ch„ Div. 696, that Wheeler, in drawing checks against the blended account of his individual trust funds, intended to be honest, and to draw from his own funds first, leaving the trust fund intact; and, thus assuming, the conclusion was necessarily reached that he drew only $1,809.92 of the trust funds. The rule in Clayton's Case, which the defendant strongly insists is applicable to this situation, is stated by Sir William Grant, at page 608, as follows:

In such a case there is no room for any other appropriation than that which arises from the order in which the receipts and payments take place and are carried into the account. Presumably, it is the sum first paid in that is first drawn out. It is the first item on the debit-side of the account that is discharged or reduced by the first item on the credit side. The appropriation is made by the very act of setting the two items against each other. Upon that principle all accounts current are settled, and particularly cash accounts. When there has been a continuation of dealings, in what way can it bo ascertained whether the specific balance due on a given day has or has not been discharged, but by examining whether payments to the amount of that balance appear by the account to have been made ? ”

If that rule, without modification, should have been adopted by the trial court, the defendant would have been entitled to judgment. At the opening of business August 24th, Wheeler’s balance was $10,899.39. Adding to this balance the other credit items down to and including the deposit of the draft in question. on August 27th, Wheeler’s aggregate credits were $58,962.54. The rule in Claytons Case, would seem to be that the first debit items in the account must be treated as drawn against this credit aggregate. But the aggregate of the debit items from the beginning down to the close of business August 29th, nine days before the notice to the defendant by the plaintiff, was $62,314.58, being an excess of debit items over the aggregate of credits of $3,352.04.

■ We have been favored with an interesting and forceful argument by the appellant, intended to make it clear that the rule in Blayton’s Case, which antedates that of Knatchbull's Case, and which has prevailed for many years, should apply to this situation, rather than tile rule of the latter case : (1) Because it is said Knatchbull's Case is not good law. This fact, it is claimed, is evidenced by a long line of authorities in England, extending over many years, which apply the rule in Clayton’s Case to the facts which appear in Knatchbull's Case, as well as by the decisions of a court'of coordinate jurisdiction in Pennell v. Deffell, 4 De Grex, M. & G. 372. (2) That, if it be good law, the facts in that case and the one at bar differ so radically as to the point upon which Knatchbull's Case went as to prevent its being considered applicable. In support of the latter proposition attention is called to the opinions in Knatchbull's Case, in which the rule in Clayton’s Case was assumed to be. the general rule, the exception being -where there are circumstances sufficient to create a presumption that the depositor did not intend his first checks to "be paid out of his first deposit. The trustee in that case in drawing moneys out of the blended account never reduced his balance below the amount of the trust moneys paid in, and the judges were of the opinion that the trustee should be presumed to have been honest, and not dishonest; and therefore lie could not have had any other intention than that of appropriating his drawings to his own private moneys, so as to -leave the trust moneys intact. Thus it is contended the presumption which arose in Clayton’s Case was rebutted in Knatchbull's Case by the presumption of the honesty of the trustee. Butin the case .at bar the presumption in Knatchbull's Case does not arise, because on the very day that Wheeler deposited tjie draft he drew out $195.13 of it, and afterwards made further drafts, by which still larger sums were drawn out. Hence it is urged that the facts upon which Knatchbull's Case went were not present, and this case should be remitted to the rule of Clayton's Case. Were we at liberty to regard this question as an open one in this state, we should feel called upon to carefully consider the arguments which we have merely suggested, but it seems to us that the question now presented was passed upon in Importers' & Traders' National Bank v. Peters, 123 N. Y. 272; 33 St. Rep. 182. In that case the court said that, where a person holding money “in a fiduciary capacity pays it to his account at his bankers, and mixes it with his own money, and afterwards draws out some by checks generally and in the ordinary manner, the drawer of the checks must be taken to have drawn out his own in preference to the trust money. The rule attributing the first drawing out to the first payment in does not apply to such a case.” The eonclu■si.on being reached that there was in the hands of thé defendant a sum of money belonging to the plaintiff’s firm on the 7th day of September, when notice of plaintiff’s rights thereto was given to the defendant, it would seem unnecessary to cite authorites in support of the proposition that the defendant cannot set off, against such balance, an unmatured claim held by it at that time against Wheeler. Three days later, a draft, which had been discounted by the defendant for the benefit of Wheeler, matured, and was not paid, and thereafter, during the two following months, several drafts, upon which Wheeler was liable, matured; but all of this paper was discounted prior to the deposit of the draft which occasions this controversy, and therefore it in no wise, influenced the defendant to discount the paper which it now seeks to set off. As to such paper the defendant’s position was neither changed nor affected by the discount of the tin draft, and therefore it is not entitled to set off such claims as against money in its hands belonging to the plaintiff’s firm, but credited to Wheeler, even though it be conceded that it would have had that right, as against Wheeler had such balance belonged to him, instead of plaintiff’s firm. Nor does the defendant’s claim seem to be well founded that the plaintiff cannot recover such, portion of the money as it is found was in the defendant’s possession on the 7th of September, because the defendant has a banker’s lien upon the balance to the credit of Wheeler’s account. - It is not claimed that Wheeler, by any formal act, applied the proceeds of the draft to the payment or security of the unmatured paper, or that there was any agreement or understanding between Wheeler and the defendant to that effect. Defendant’s claim of lien, therefore, is founded solely on its claim that it had a right to apply the proceeds remaining in its hands to the credit of Wheeler on the 7th of September as security for the unmatured paper which it had discounted at the instance and request of Wheeler. This proposition was met and decided adversely to the appellant’s present contention in Jordan v. Bank, 74 N. Y. 467. It was there held that, in the absence of a contract between the depositor and the bank, the latter has not a right to retain the balance of a customer’s deposit to pay or apply upon an indebtedness of a customer to the bank not yet matured, and, so far as we have observed, the authority of this case has in no wise been shaken or modified by subsequent decision.

The appellant further insists that the doctrine of election between inconsistent remedies should have prevented a recovery by the plaintiff. Morris v. Rexford, 18 N. Y. 555; Greton v. Smith, 33 id. 245; Bank v. Beale, 34 id. 473; and other cases, — are cited, in support of the proposition that where there are two absolutely inconsistent remedies, the parties are not entitled to enforce both, and the election of one precludes a resort to the other. An elem tian once made is determined forever. Moller v. Tuska, 87 N. Y. 166. It may be determined by any decisive act made with full knowledge of all the facts. Fowler v. Bank, 113 N.Y. 450; 23 St. Rep. 130. And the bringing of an action to enforce one of the remedies sufficiently evidences an election. Conrow v. Little, 115 N. Y. 387; 26 St. Rep. 527. Now, the acts of plaintiff’s firm which defendant insists establish satisfactorily and conclusively that between two inconsistent remedies the plaintiff’s firm made, an election prior to the commencement of this action, are,- briefly, that on September 8, 1887, — the day following the giving of the notice to the defendant’s bank, — plaintiff’s firm commenced an action in the superior court of the city of New York against Wheeler to recover possession of a large amount of property, including the 600 boxes of tin, the proceeds of which are now in dispute. Appellant says that this action went upon the theory that the tin was the property of Wheeler, and in affirmance of his ownership of the draft, and thus inconsistent with the claim that the proceeds of the tin are the plaintiff’s property, upon which theory this action proceeds. But the appellant seems to us to be - inaccurate in this position. An examination of the complaint makes it clear that the action was brought upon the theory that plaintiff’s firm were the owners of the tin, and entitled to the possession of it. Both that action and this alleged Wheeler’s indebtedness to plaintiff’s firm; that the 600 boxes of tin were the absolute property of plaintiff’s firm, and would so continue until full satisfaction by payment should be actually made under the trust receipt. The other > fact relied upon to establish an election is that plaintiff’s firm, with full knowledge of the misuse of the draft in question, and before the commencement of this action, presented to the commissioners of Wheeler’s estate in the state of Connecticut,- who had been appointed to pass upon the claims against said estate, proof of a claim against Wheeler, under which dividends were after-wards paid to the plaintiff’s firm aggregating $665.70. It may be said in passing that this sum was deducted from the amount of the draft, in addition to the deduction already spoken of, made because to that extent the fund had been drawn out of the bank. The deduction was made by the trial court because it felt constrained to do so, owing to a stipulation contained in the record. This ruling of the court is not challenged, and need not be further alluded to. Now, it is urged that plaintiff’s firm, on the 7th of September, had two remedies, either one of which they could resort to, but not' both, because they were inconsistent. These remedies were: First, to treat the 600 boxes of tin as plaintiff’s property, and follow it or the proceeds; second, to ratify the action of Wheeler in selling the property and treating the proceed as his own. and proceed against him for the' purchase price. The case of Banks v. Beale, 34 N. Y. 473, is specially invoked because of the alleged similarity of its facts to the case át bar. In that case a vendor, who was defrauded in the sale of goods, after being apprised of the fraud, took judgment against his vendee under the contract of sale, and when afterwards he attempted to follow the goods or proceeds into the hands of third persons on the ground that the goods were obtained from him through fraud the court held that he had made his election to affirm the contract, and could not, therefore, proceed in disaffirmance of it. But it will be observed that the vendor’s position in one action was that he had made a valid contract with the vendee, under which delivery of the goods had been made, which entitled him to recover the pur■chase price; while in the other it was that the alleged contract between himself and the vendee was absolutely void, and no contract at all, because of the fraud of the vendee. In other words, to maintain one action it was necessary to prove a contract, and to maintain the other that there was no valid contract. If the circumstances surrounding the transaction out of which this action grows presented a similar situation, the appellant’s position would be well founded. But here every step which has been taken, whether in the action in the superior court, in the presentation of claims against the estate of Wheeler, or in the commencement of this action, is in affirmance of the contract between plaintiff's firm and Wheeler. It presents a case where plaintiff’s firm has two or more consistent, instead of two or more inconsistent, remedies. And a party having several remedies for the same debt may resort to them all, although he can have but one satisfaction. Gambling v. Haight, 59 N. Y. 354. In the contract, or “trust receipt," as it is called, between Wheeler and the plaintiff’s firm, it was provided that the goods purchased under the letter of credit and the proceeds “shall, to all intents and purposes, be your absolute property until full satisfaction by payment shall have actually been made to you under the agreement or receipt of said letter of credit.” This was in furtherance of the original trust agreement, signed by Wheeler & Co. upon receiving the letter of credit for £10,000 sterling. ’ Therein Wheeler agrees:

“To provide you here, fifteen days before the maturity, respectively, of the bills drawn under such letter of credit, with sufficient funds in currency of the United States to meet such bills as they become due, together with your commission upon the amount of sueli bills, which it is agreed shall be one-half of one per cent. We also agree to give you security here for the amount of such bills at any time previous to their maturity, if required by you to do so. All property which shall be purchased by means of the above credit, and the proceeds thereof, and the policies of insurance thereon, "x" * * are hereby pledged and hypothecated to you as collateral security for the fulfillment of this agreement on our part.”

By the contract, then, it was provided that the ownership of the merchandise and the proceeds thereof should continue on the plaintiff’s firm until Wheeler should pay to them the original purchase price. Its legal effect was to make Wheeler the debtor of plaintiff’s firm for the moneys advanced in payment of the merchandise purchased by him and plaintiff’s firm, the owners of the goods, until full payment should be made. Moors v. Kidder, 106 N. Y. 32 ; 8 St. Rep. 877; Drexel v. Pease, 133 N. Y. 129-136; 44 St. Rep. 264. Under their contract, therefore, plaintiff’s firm had the right to sue Wheeler for his debt, and in the same or another action enforce their rights as owners of the goods. The judgment should be affirmed, with costs.

All concur.


text:
    Edith Mason Faxon, Resp’t, v. John Mason, Impleaded, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 17, 1895.)

    Order — Recitals.
    The recital in an order, entered on a non-enumerated motion, that it was made on certain papers, “and on the papers and proceedings herein,” is too indefinite and does not comply with the rule.
    Appeal from an order, denying a motion to resettle an order by striking out certain portions thereof.

      F. Bien, for app’lt; Howard A. Taylor, for resp’t.
   Per Curiam.

Upon settling the order upon the motion in-question there was a recital of certain papers used upon such motion, together with a statement in this general language, “and on all the papers and proceedings herein.” This language is so indefinite and uncertain that it is impossible for the court to determine what papers were before the court, and considered by it upon the hearing of the motion. It is necessary, in order that there-should not be confusion and dispute as to the papers used upon a motion, that they should be so definitely specified that they can be easily identified, and that there may be no confusion or dispute in reference thereto. This is manifestly the requirement of rule three of the general rules of practice, which requires that, in every order entered on a nonenumerated motion, all the papers used or read on the motion on either side shall be specified in the order. The words objected to are too indefinite, and do not comply with the rule. The order should be reversed, with $10 costs and disbursements.