text:
    Francis D. Bailey, App’lt, v. The County of Buchanan in the State of Missouri, Resp’t.
    (New York Superior Court, General Term,

      Filed February 14, 1887.)

    1. Bonds payable at option—Deposit op money to pay—When not SUFFICIENT TO STOP INTEBST
    The defendant having decided to redeem certain of its bonds pursuant to an option reserved to it in said bonds, deposited money in a certain. bank to pay said bonds with accrued interest to the 1st of August, 1888-Certain of said bonds were duly presented for payment, but the interest-coupons for the July interest were not presented nor any demand made for payment of the interest which had accrued on and before July 1, 1888. Payment was refused because said coupons were not presented for payment with the bonds. Subsequently and after January 1, 1884, the July coupons and the bonds, from which the coupons for interest due January 1, 1884, had been detached, were paid. In a suit brought to recover the interest covered by these January coupons. Held, that in annexing to the deposit of the funds the condition that no bond should be paid unless it was accompanied by all the coupons for accrued interest, the defendant did not make a sufficient lawful tender to stop the running of interest from August 1, 1883.
    2. Same—When sufficient tender to stop interest.
    When a negotiable instrument is payable at a particular time and place, the timely deposit by the party liable thereon of funds for making .the payment, at the time and place named, is equivalent to a tender of the sum payable and is a bar to a recovery of interest subseqent to the tender. But a deposit of this kind and for the purpose named must not be accompanied by a condition not authorized by the instrument.
    3. Same—Interest coupons—Effect of non-payment when due.
    It was part of the original contract that each coupon, as it matured and was not paid on demand should ripen into a new and distinct obligation. In order to reap the benefit of the option reserved in the bonds and to stop the running of interest thereon, it was the duty of defendant to tender payment of the full amount due on each bond irrespective of the question whether coupons detached therefrom for accrued interest were or were not presented for payment at the same time. Under the circumstances of this case it was none of the business of defendant to inquire whether the holder of a bond who demanded payment was not also the owner of another cause of action.
    4. Same—Rights of assignee of interest coupons.
    The assignee of an interest coupon has no greater or better right in bringing an action than his assignor would have had.
    Appeal from judgment entered on the decision of a judge at special term.

      Henry Parsons, for app’lt; Knevals & Ransom, for resp’t.
   Freedman, J.

This action was brought to recover the amount of ten coupons of fifty dollars each, respecting the semi-annual interest claimed to be due January 1, 1884, on ten bonds issued by the defendant, dated July 1, 1869, and payable July 1, 1889, both coupons and bonds having been made payable at the Bank of America in the city of New York. Each bond contained the following provision:

“ This bond is redeemable by the said county at its option at any time after ten years from date thereof.”

The defense is that the defendant exercised said option by taking certain proceedings on July 7, 1883, to pay said bonds at the Bank of America on the 1st of August, 1883; that the money required to pay said bonds and coupons was furnished to said bank on the 20th day of July, 1883, and that plaintiff’s assignor had full and timely notice of the exercise of said option.

On said 7th day of July, 1883, plaintiff’s assignor was the owner of the ten bonds referred to, and of the coupons in suit which were then attached to the said bonds.

At the same time he was also the owner of certain other coupons which had been detached from the said bonds, but were similar in terms and had matured on and prior to the 1st ,day of July, 1883, and which represented respectively semi-annual interest on said bonds, which had accrued on and prior to said 1st day of July, 1883. These detached coupons had not been paid by the defendant, although they had been presented, and demand for their nayment had theretofore been made.

After August 1, 1883, plaintiff’s assignor presented the said ten bonds to the Bank of America for payment, but did not present or demand payment for the coupons matured, for interest accrued on and before July 1, 1883.

The bank, under instructions from the defendant, refused to pay the bonds presented, for the reason that the coupons for accrued interest, upon which the defendant was in default, did not accompany the said bonds and were not at the same time presented for'payment.

On December 18,1883, the defendant authorized the bank to pay coupons for accrued interest, although not accompanied by the respective bonds, but at the same time the bank was instructed not to allow interest on said coupons after August 1, 1883.

After January 1, 1884, the coupons in suit, representing the semi-annual interest between July 1, 1883, and January 1, 1884, were detached from the bonds and represented for payment, and payment was refused as to five-sixths thereof.

On the seventh day of February, 1884, the ten bonds were paid, pursuant to a special order of the defendant, without being accompanied by any coupons, and subsequently the coupons for interest accrued on and prior to July 1, 1883, were paid, with interest thereon, by defendant’s special direction.

Upon these facts, it is clear that if the ten bonds-had been paid when presented for payment in August, 1883, the coupons in suit would never have been due and payable.

The question presented by this appeal, therefore, is whether the defendant could in August, 1883, refuse payment of the ten bonds, on the ground that the coupons of said bonds for interest accrued prior to July 1, 1883, were not presented for payment at the same time, and yet can claim that, in the exercise of its option, it had made a sufficient lawful tender to stop the running of interest from August 1, 1883 ?

In approaching the determination of this question, two propositions may be at once conceded. The first is that the plaintiff, as assignee, has no greater or better* rights than his assignor would have had, if he had brought the action. The second is, that where a negotiable instrument is payable at a particular time and place, the timely deposit by the party liable thereon of funds for making the payment at the time and place named, is equivalent to a tender of the sum payable, and is a bar to a recovery of interest subsequent to the tender. But a deposit of this kind, and for the purpose named, must not be accompanied by a condition not authorized by the instrument.

This brings up at once the question as to the nature and character of the coupons which had been detached from the bonds, and whether such coupons, by reason of their maturity and the default in the payment thereof, were obligations independent of the bonds in the hands of the holders of the bonds. True, the obligation created by each bond was to pay the principal, sum and interest thereon, and the coupons represented such interest and were a part of the bonds, and they, therefore, partook of the nature of the bond and were governed by its terms. But the fact which must never be lost sight of, is that the coupons represented a special mode agreed on by and between the parties for the convenience of any holder of a bond in collecting the interest as it might become due for many years to come.

On this subject the supreme court of the United States recently held in Clark v. Iowa City (20 Wall., 583), as follows:

“Most of the bonds of municipal bodies and private corporations in this country- are issued in order to raise funds for works of large extent and cost, and their payment is, therefore, made at distant periods, not unfrequently beyond a quarter of a century.
“ Coupons for the different installments of interest are usually attached to these bonds in' the expectation that they will -be paid as they mature, -however distant the period fixed for the payment of the principal. These coupons, when severed from the bonds, are negotiable and pass by delivery. They then cease to be incidents of the bonds, and become in fact independent claims; they do not lose their validity, if for any cause -the bonds are canceled or paid before maturity; nor their negotiable character, nor their ability to support separate actions, and the amount for which they are issued draws interest from their maturity. They then possess the essential attributes of commercial paper, as has been held by this court in repeated instances. Every consideration, therefore, which gives efficacy to the statute of limitations, when applied to actions on bonds after their maturity, equally requires that their limitations should be applied in actions upon the coupons after their maturity. Coupons when severed from the bonds to which they were originally attached are, in legal effect, equivalent to separate bonds for the different installments of interest. The like action may be brought upon each of them, when they respectively become due, as upon the bond itself, when the principal matures; and to each action, to that upon the bond and to each of those upon the coupons, the same limitations must upon principle apply. All statutes of limitations begin to run when the right of action is complete; and it would be exceptional and illogical to hold that the statute sleeps with respect to claims upon detached coupons, while a complete right of action upon such claims exist in the holder.”

I, therefore, from the nature of the contract between the parties, each coupon, as it matures and is not paid upon demand, ripens into a new and independent obligation of the maker; its independence as a distinct obligation does not rest upon its negotiable character.

True, a coupon may, to some extent, become an independent obligation even before maturity, when negotiated by virtue of its negotiable quality, but from this it does not follow that a coupon, the payment of which was refused at maturity, is not an independent obligation in the hands of the holder of the bond who detached it from the bond to which it belongs.

There is nothing in the decisions of City, etc., v. Lamson (9 Wall, 477), and Union Trust Co. v. Monticello and P. J. R. Co. (63 N. Y., 311), which conflicts with these views.

Inasmuch, therefore, as in the case at bar, it was part of the original contract that each coupon, as it matured and was not paid on demand, should ripen into a new and distinct obligation, it was the duty of the defendant, in' order to reap the benefit of the option reserved in the bonds and to stop the running of interest thereon, to tender payment of the full amount due on each bond, irrespective of the question whether coupons, detached therefrom for accrued interest, were or wore not presented for payment at the same time. Under the circumstances of this case it was none of the business of the defendant to inquire whether the holder of a bond, who demanded payment, was not also the owner of another cause of action.

The consequence is that in annexing to the deposit of the funds the condition that no boiid should be paid unless it was accompanied by all the coupons for accrued interest, the defendant did not make a sufficient lawful tender to stop the running of interest from August 1, 1883.

For the reasons stated the learned judge below erred in holding that the plaintiff was entitled to recover only the one-sixth part of the amount of the coupons sued upon.

\

The plaintiff is entitled to recover the full amount of said coupons.

The judgment appealed from must be reversed and a new trial. ordered, with costs to the appellant to abide the event.

Sedgwick, Ch. J., concurs.


source: Caselaw Access Project

author: Ingraham, J.

license: Public Domain

text:
    Samuel Von Wien, App’lt, v. The Scottish Union and National Ins. Co., Resp’t.

      (New York Superior Court, General Term,

      Filed February 14, 1887.)

    Insurance, fire—Cancellation of policy.
    The plaintiff obtained five policies of fire insurance, each of like amount, in different companies, through an agent, all of which were delivered to him. He only paid three-fifths of the total premiums to the agent, and subsequently delivered up two of the policies to be canceled, The agent having paid the premiums on the two returned to be canceled, had two others canceled instead, one being the one in suit. He afterward tried to have the plaintiff keep the two which he offered to return, and deliver to be canceled the two which had been canceled. Pending negotiations the property was destroyed. Held, that the company attempted to cancel the policy by agreement with a person who assumed to act for plaintiff, but who was without authority, and without notice to the assured, and that such cancellation was ineffective and the policy remained in full force.
    Appeal from judgment in favor of the defendant entered on the direction of the court, without a jury.

      Benno Loewy. for app’lt; Wm. A. Jenner, for resp’t.
   Ingraham, J.

The only question in this case is whether the policy of insurance sued on was canceled. It was held by this court on a former appeal (52 Supr. Ct. Repts.,489), that as the policy of insurance was delivered to the plaintiff without requii’ing the payment of a premium, a presumption was raised that a credit was intended and the pre-payment of the premium waived; that Rieger’s authority to act for the plaintiff ceased on procuring the policies, and that he had no authority to cancel the policy or to receive notice of said cancellation from the insurance company.

The court found the execution and delivery of the policy; that the same remained in plaintiff’s possession up to the time of the trial; that the plaintiff employed one Spitzer to procure $5,500 insurance* on his property; that said Spitzer employed' Rieger to procure such insurance.

The said Rieger did procure five policies in the sum of $1,100 each. Two of the said policies being in the Ger-mania Insurance Co., one in the defendant company, one with the Transatlantic company, and one with the Mechanics’ and Traders’ Ins. Co. All the policies were delivered to the plaintiff and retained by him; that the premiums due on all of said policies amounted to $166, of which plaintiff paid said Spitzer $100, and the balance of the premiums remained unpaid.

That by an agreement between defendant and Rieger acting for plaintiff duly authorized, the said policy with defendant was canceled and the said insurance ceased.

The question presented is whether there is any evidence to sustain the finding of fact that Rieger was authorized by the plaintiff to cancel the policy for him: Plaintiff’s evidence tended to show that the five policies being in plaintiff’s possession,. Spitzer demanded payment of the balance due for premiums. Plaintiff then said, ‘ ‘ I don’t want your policies; ” went to the safe and then said he had enough insurance, and didn’t want any more, and gave Spitzer two policies, one in the Transatlantic Co. and one in the Mechanics’ and Traders’ Co. Spitzer took these two policies and delivered them to Rieger and ordered them canceled. Rieger, out of "the $100 paid by plaintiff, had paid the premiums on these two policies, but had not paid the premiums on the policy in suit.

It is very clear that this transaction gave no authority to Spitzer or Rieger to cancel the policy in suit. Plaintiff said he had enough insurance and did not want any more. He had paid for three of the five policies and the delivery of two of the five would be an authority to cancel the two delivered, certainly not the three retained.

The contracts of insurance were separate with different companies and if two were to be canceled, it was for the plaintiff to say, which of the policies he wished canceled and which retained.

It appears that neither the plaintiff or Spitzer knew at the time that the premium on the defendant’s policy had not been paid by Rieger and there is nothing to justify the court in holding that plaintiff conferred any authority at that interview on Spitzer, to cancel any policies except the two delivered.

I think, therefore, the cancellation of the policy with the defendant by Rieger and the company was unathorized by the plaintiff, and that the finding that plaintiff authorized Rieger to cancel the policy is without evidence to sustain it.

Defendant claims, however, that plaintiff ratified the cancellation of the policy. There is no finding as to such ratification or as to any interview between Rieger and the plaintiff after the policy was canceled and plaintiff denies the testimony of Rieger in which such conversation is related.

Taking Rieger’s testimony as true, however, I do not think there is any evidence of such a ratification. Rieger stated that in the afternoon of the day or the morning after the attempted cancellation, he went to plaintiff’s store and took the two policies delivered to Spitzer; that Rieger said to plaintiff: “I understood he said he did not want this insurance, and I asked him. if that was so. He said yes, he did not want it.” After some conversation plaintiff said that, “on the following Saturday, if I gave him these two polices, he would bring down the other two and give. them to me and eleven dollars. I did not want a scene in the saloon.- I put on my hat and left. That was on Tuesday before the fire.”

Rieger was not the agent of the defendant, nor was he acting on its behalf. He had assumed to act for the plaintiff without authority and there was no evidence that he expressly informed the plaintiff what he had done. There could be no ratification of his acts without full knowledge by the principal of the act done by Rieger and of his right to# repudiate that act as unauthorized. The only thing that plaintiff did was to make a proposal for the settlement of the dispute and that Rieger did not accept.

It is clear that the evidence would not have justified the court in finding that there was such a ratification. - Nor did the company cancel the policy under the right therein reserved. The policy provides that: “It (the policy) may also be canceled at any time by the company on giving a written or verbal notice to that effect and refunding a ratable proportion of the premium. Under such a provision, the policy could only be canceled by a personal notice to plaintiff or to his agent authorized to receive it. Hermann v. Niagara Insurance Co., 100 N. Y., 415.

The company attempted to cancel the policy by agreement with a person who assumed to act for the plaintiff, but who was without authority and without notice to the assured and such cancellation was, I think, ineffective, and the policy remaining m full force.

Applying this rule as settled by this court on a former appeal, I do not think there is any evidence to show that plaintiff had ever authorized Spitzer or Rieger to cancel the policy or ratify such cancellation.

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

Freeman, J., concurs.


text:
    James A. Gilbert, App’lt, v. The Third Avenue Railroad Company, Resp’t.

      (New York Superior Court, General Term,

      Filed February 14, 1887.)

    1. Negligence—Street Railroad—Not negligent per se to get on MOVING CAR.
    It cannot be said, as a matter of law, that a person getting upon a car about to stop is not guilty of negligence on his part, but the rule is that such an act is not, as a matter of law, contributory negligence. It is for the jury to say, in each case, whether, under the circumstances of .the case, the plaintiff was or was not guilty of contributory negligence.

      2. Same—Refusal to charge.
    The judge is right in refusing to charge propositions of law which have no evidence in the case to support them.
    3. Same—Evidence—When competent.
    A witness was asked, and testified, in an action for damages for injuries resulting in being thrown while trying to »et on one of defendant’s street cars, to the exislence of a fact, viz.: Wlnit had happened on the car the day before, when a person, placed upon the step of the car as plaintiff described himself to have been, at the time of the accident, when the-car suddenly started. Held, that the evidence, in its nature, was not incompetent.
    4. Same—Objections—Effect of general objection.
    The objection was general. In such a case the decision of the trial judge-will be sustained, unless there be some ground which could not have been obviated if it had been specified, or unless the evidence, in its essential nature, is incompetent.
    5. Same—Hot Available.
    A general objection is insufficient to make an objection that the answer-called for the opinion of a witness, available.
    Appeal from judgment in favor of defendant entered on the verdict of the jury.

      John Cockran, for app’lt; W.m. N. Cohen, for resp’t.
   Ingraham, J.

Plaintiff presents two rulings of the trial court, upon which he asks that the judgment, be reversed.

The first to be considered is the refusal to charge in substance that it is not negligence for a person to get on a. street car while in motion. The court bases its refusal to charge as requested on the ground that there was no proof to justify the jury in finding that the car slowed up for the plaintiff to get on the car, the court saying, “It is not worth while, gentlemen, that I should instruct you under' what circumstances some other plaintiff in some other case might make an attempt to board a car before it has fully-stopped.”

The plaintiff on the trial had testified that the car stopped when he attempted to get on; that he had one foot on the platform and one foot on the step, when the conductor rang the bell, the car started and he was thrown off. From his story there was no evidence that the car had slowed up, and nothing upon which to base such a request. The plaintiff’s testimony was uncorroborated. The defendant called the driver and the conductor of the car and a passenger that helped plaintiff off the car after the accident. From their testimony, it appears that plaintiff was first seen being dragged after the car and that before that time the car did not stop or slow up.

If this story was true, then there was no evidence to show that defendant was guilty of any negligence, and it did affirmatively appear that plaintiff was guilty of contributory negligence. The court left it to the jury to say which story they believed under the charge, to which no exception was taken; and the jury having found for the defendant, it must be presumed that they did not believe plaintiff’s testimony.

The court was not requested to leave it to the jury to say whether under the circumstances of the case, plaintiff was or was not guilty of contributory negligence; but plaintiff, in substance, requested the court to charge that certain acts of the plaintiff were not as matter of law contributory negligence. It cannot be said as a matter of law that a person getting upon a car about to stop is not negligent on his part, but the rule is that such an act is not as a matter of law contributory negligence. It is for the jury to say in each case whether, under the circumstances of the case, the plaintiff was or was not guilty of contributory negligence.

As was said in Eppendorf v. The B. C. and N. R. R. Co. (69 N. Y., 195): “The sole question to be détermined here so far as relates to plaintiff’s alleged contributory negligence was the character of the plaintiff’s acts under the circumstances existing at the time. ”

What would be contributory negligence under circumstances not proved could not assist the jury in finding on this question then presented.

The second and more serious question was the exception to the decision of the court in overruling the objection to the testimony of an experiment .made upon the car after the accident. The objection was general. No ground was stated why the testimony should be excluded and in such a case the decision of the trial judge will be sustained, unless there be some ground which could not have been obviated if it had been specified, or unless the evidence in its essential nature is incompetent. Quinby v. Strauss, 90 N. Y., 664.

And a general objection is insufficient to make an objection that the answer called for the opinion of a witness, available. Merritt v. Briggs, 57 N. Y., 651.

Under this rule the evidence will not be held to be erroneously admitted because the witness was not shown to be an expert, or because it did not appear that the identical circumstances which surrounded the plaintiff and the identical conditions under which he acted existed at the time the experiment was made.

The witness was asked to and testified to the existence of a fact, viz.: What had happened on the car the day before. No opinion was asked, but he was requested to state what he had seen when a person placed upon the step of the car as plaintiff described himself to have been at the time of the accident, when the car suddenly started.

This evidence was not in its nature incompetent. The plaintiff testified that he stood on the steps and platform of the car and, by a certain jerk of the car in starting, was thrown off.

Testimony of competent witnesses to show that a person standing in the same position was thrown in a different direction when the car was suddenly started, would certainly be competent evidence’ for the jury in determining on the conflict of evidence as to the manner in which the accident happened.

No case is cited by the plaintiff which holds such evidence incompetent and we do not think that it was error in the court to overrule the objection taken.

The weight of evidence was largely in favor of the defendant. The question was fairly submitted to the jury by the charge to which no exception was taken and we are satisfied that no error was committed that calls for a reversal of the judgment.

Judgment should, therefore, be affirmed with costs.

Sedgwick, C. J., concur.


author: Sedgwick, J. Ingraham, J.

text:
    Robert Baxter, App’lt, v. George Richardson, Resp’t.

      (New York Superior Court, General Term,

      Filed February 16, 1887.)

    J. Negligence—Question eor the juey—Dismissal oe complaint— Error.
    The plaintiff "was employed by defendants to do some carpenter work near an elevator which was in the use and possession of defendants. While, for a purpose connected with that work; the plaintiff stood upon the platform of the elevator, and, to steady himself, took hold of a chain with his hands which, with _ other chains, supported the elevator, the elevator began to rise and plaintiff’s hand, while on the chain, was drawn against a pulley and was injured. Held, that as there was evidence that would have justified the jury in finding that plaintiff was not the cause of the elevator starting, although a verdict to the contrary might be sustained, it was for the jury to judge what was the cause of the elevator moving, and whether by any negligence of the defendants or their agents.
    3. Same—Contributory negligence.
    Though the act of the plaintiff in taking hold of the chain contributed to the injury, it would only be a negligent act on the assumption that he ought to have anticipated the likelihood or possibility of the elevator starting and endangering the hand, and when there are no facts to show that as a matter of law he should have anticipated the danger, it was also for the jury
    3. Same—Risk taken by employee—Duty op employer.
    Plaintiff took the ordinary risks incident to the work he was sent to do, but the defendant was bound not to expose him to unreasonable dangers which could not be foreseen and which the exercise of ordinary care on the part of the defendant or his agents or servants would have prevented. Ingraham, J.

      Appeal from judgment dismissing complaint entered upon direction of the judge.

      Edward C. James, for app’lt; James W. Smith, for resp’t.
   Sedgwick, J.

The action was for damages for the negligence of defendants.

The plaintiff had been employed by defendants to do-some carpenter’s work near an elevator which was in the use and possession of defendants. .

For a purpose connected with that work, the plaintiff stood upon the platform of the elevator to “steady himself.” As he testified, he took hold with his hand of a chain which, with other chains, supported the elevator. This chain passed around an iron pulley; when he was thus standing the elevator began to rise, and plaintiff’s hand, while on the chain which he held grasped, was drawn against the pulley and was injured.

On the trial the court dismissed the complaint.

The learned counsel for the respondent argued that the judgment should be affirmed upon two grounds. The first, is, that on the whole evidence it appears that the plaintiff himself started the elevator. The evidence on this point would have justified the jury in finding that the plaintiff was not the cause of the elevator starting, although, on the other hand, a verdict to the contrary might be sustained.

The jury was the judge of what was the cause of the elevator moving.

The second ground is that plaintiff was negligent" iff taking hold of the chain.

There is no doubt that this act contributed to the result of the hand being hurt. It would only he a negligent act, on the assumption that • the plaintiff ought to have anticipated the likelihood or possibility of the elevator starting- and endangering the hand. There are no facts to show that the plaintiff, as a matter of law, should have anticipated the danger. This matter was also for the jury.

Judgment reversed, and new trial ordered, with costs to-abide the event.

Freedman, J., concurs.

Ingraham, J.

The elevator on which the accident happened was under the control of the defendants or their agents. There is no evidence that the elevator was out of order, or that it would move, unless some one started it.

There was evidence from which the jury could find that the plaintiff did not start the elevator; and, on the testimony, it would be a question for them to say whether the elevator moved by reason of any negligence of the defend- ' ants or their agents.

The plaintiff was lawfully upon the premises, and when the owner of lands, in the prosecution of his own purposes or business, invites another, either expressly or impliedly, to come upon his premises, he cannot with impunity expose him to unreasonable or concealed dangers. Larremore v. Crown Point Iron Co., 101 N. Y., 395; 1 N. Y. State R., 43.

Plaintiff came to work on this elevator by invitation of the defendants; while there, he took the ordinary risks incident to the work he was sent to do; but the defendant was bound not to expose him to unreasonable dangers which could not be forseen, and which the exercise of ordinary care, on the part of the defendants or their agents or servants, would have prevented.

If, then, plaintiff was exposed to such danger by reason of the negligence of the defendants or their servants, and and there was no negligence on his part, and he was injured, I think the defendants are liable.

It was a question, therefore, for the jury to say whether or not the defendants or their agents negligently started the elevator.

I concur, therefore, that the judgment should be reversed.


author: Truax, J.

text:
    Atlanta Hill Gold Mining and Milling Company v. Constant A. Andrews.

      (New York Superior Court, General Term,

      Filed June 23, 1887.)

    1. Judgment—How ear conclusive.
    A judgment or adjudication is final and conclusive, not only as to the matter actually determined, but as to every other matter which the parties might have had decided as incidental to or essentially connected with the subject-matter coming within the legitimate purview of the original action, both in respect to matters of claim and of defense.
    2. Same—When judgment in another suit a bar.
    All that is necessary to render a judgment effectual as a bar to another action js that the causes of action are substantially the same. Two causes of action are essentially the same, although one action differs from the other in form, if they are sustained by the same evidence.
    3. Same—When a judgment in another state controls.
    One of the matters of defense in a certain action in Idaho between the same parties that were parties to this action, was that the resolutions voting the defendant in this action, the plaintiff in that action, a salary, were authorized and legal. This claim was decided against the plaintiff in that action. Held, that it was an adjudication which controlled the court here.
    4. Corporation—Contract with directors—When void.
    A contract made between a corporation and one of its directors to the pecuniary advantage of that director, if made at a meeting of the board of directors when he is present and takes a part in the proceedings, is void.
    This action was tried before a judge and a jury.
    The trial judge directed the jury to render a verdict in favor of the plaintiff, and further directed that the exceptions be heard in the first instance at the general term.

      H. E. Deming, for resp’t; Jones & Rosevelle, for app’lt.
   Truax, J.

Some time prior to the commencement of this action the defendant herein commenced an action against the plaintiff in the territory of Idaho, and in his complaint alleged that the defendant in that action, the plaintiff in this, was a corporation duly organized under the laws of the State of New York, having its principal place of business and office in the city and county of New-York.

That it was doing business as such corporation, in its corporate name, in Alturas county and territory of Idaho aforesaid; that the defendant in that action, the plaintiff in this, on certain dates, duly made and issued to the said Andrews, and delivered to him, its certain promissory notes for value received, payable on demand to its own order, and endorsed the same to the said Andrews, who thereby became and was the legal owner and holder thereof.

That those notes were then due and unpaid; that the said defendant, the plaintiff in this action, in its corporate name and capacity, and by its proper officers thereunto, duly authorized and empowered, duly signed, executed, endorsed and transferred the above notes to the said Andrews, who became and was the owner and holder thereof.

And then said Andrews demanded judgment against the defendant in that action, the plaintiff in this, for the aggregate sum of all of those promissory notes, with interest and costs.

The defendant in that action, in his answer, amongst other things, denied that on the .days or dates stated in said complaint, or at any other time or times, it made or issued to said plaintiff, or delivered its promissory note, or any promissory note, for value or otherwise* payable on demand or otherwise to its own order or otherwise, or endorsed the same or any promissory note to the said Andrews.

That said alleged promissory notes were not executed with or under the authority of the said defendant; and then,, as a further answer, the defendant in that action alleged that at the days and dates of said alleged promissory notes mentioned in said complaint, and from the 7th day of May, 1883, and continuously for a period of nine months thereafter, the said plaintiff was the president of the defendant, and that as such president, said plaintiff signed and endorsed to himself the notes described in the complaint in that action without the authority of the defendant in that action, and then demanded judgment for a dismissal-of the complaint, with costs and disbursements. ■

The issue made by the pleadings was regularly called for trial, and the court decided, amongst other things, that the defendant in that action, the plaintiff in this, neither made, issued nor delivered to the said Andrews the promissory notes described in the complaint or any or either of them. That at the dates of said promissory notes, and at the times the same were executed, and from the 7th day of May, 1883, and until after the 21st day of January, 1884, the plaintiff was'the president of the defendant corporation, and as such president, was present and presided at the meetings of the board of trustees of defendant when a salary was voted to the plaintiff in that action as president of the defendant corporation, for which plaintiff claims said notes were executed to him; and the plaintiff at the day of the meeting proposed the resolution and requested one of the trustees to introduce it in the meeting.

And as a conclusion of law the court held that the resolutions voting plaintiff a monthly salary as president of the defendant corporation, for which the plaintiff claims said promissory notes were executed, were and are void. And that the defendant in that action, the plaintiff in this, was entitled to a judgment for its costs and disbursements in this action, and thereupon a judgment was entered in the form suggested.

After the commencement of the action in Idaho the plaintiff herein began an action in this court against the defendant herein, in which it sought to recover from the defendant the sum of $1,500 which had been paid to the defendant under the above-mentioned resolutions, a certain monthly salary from the 12th day of May, 1883. That this payment was made under and pursuant to certain resolutions which were passed at meetings of the board of trustees of the plaintiff corporation at which meetings the said defendant was present and that his vote on the resolutions was necessary in order to obtain the passage of the resolution.

The defendant answered denying some of the allegations in the complaint, and in substance denying that the vote of the defendant was requisite in order to procure the passage of the resolutions above mentioned.

The defendant further alleged that he was president and acted as president of the plaintiff from the 7th day of May, 1883, until the 6th day of February,- 1884, and as such president rendered valuable services for the plaintiff which services were of the value of not less than $500 per month.

The defendant as a counterclaim alleged the making and delivery of the notes above referred to in consideration of the services rendered by the defendant as president as aforesaid, and demanded judgment for the amount that was due on the said notes with interest.

The only evidence offered by the plaintiff on the trial of this action was the judgment-roll in the action in the territory of Idado.

The defendant objected to the admission of the judgment-roll on the ground that it was inadmissible and incompetent. This objection was overruled and to this ruling the defendant excepted.

The defendant was called as a witness in his own behalf and offered to prove certain facts. This offer was overruled. The evidence was excluded and. the defendant duly excepted.

The theory on which the trial judge acted was that the judgment rendered in Idaho was an adjudication as between the parties, that the resolutions under which the defendant was paid the sum of $1,500, and under which the notes were given to the defendant for his services were illegal and void.

We are of the opinion that in this he did not err.

One of the matters which was litigated in the controversy In Idaho is that the resolutions voting Mr. Andrews a-monthly salary as president of the corporation were null and void. If those resolutions were null and void, then the defendant was not entitled to his salary," for a contract made between a corporation and one of its directors to the pecuniary advantage of that director, if made at a meeting of the board of directors when he is present and takes part in the proceedings, is void. Butts v. Wood, 37 N. Y., 317; Kelsey v. Sargent, 40 Hun, 150; 3 N. Y. State Rep., 477.

It is well settled in this state that a judgment or adjudication is final and conclusive, not only as to the matter actually determined, but as to every other matter which the parties might have had decided as incidental to or essentially connected with the subject-matter coming within "the legitimate purview of the original action, both in respect to matters of claim and of defense.

All that is necessary to render a judgment effectual as a bar to another action is that the causes of action are substantially the same. Two causes of action are substantially the same, although one action differs from the other in form, if they are sustained by the same evidence. March v. Masterton, 101 N. Y., 407.

One of the matters of defense in the action in Idaho was that the resolutions voting the defendant in this action, the plaintiff in that action, a salary, were authorized and legal. This claim was decided against the plaintiff in that action, and this we consider an adjudication which controls the court here. ■

This view renders it unnecessary to consider _ the exceptions which were taken by the defendant in this action to the decision of the court in overruling his offers of testimony.

The defendant’s excptions are overruled and judgment is ordered for the plaintiff, with costs and disbursements Sedgwick, Oh. J., concurs.


author: Per Curiam.

text:
    Charles Northrop, Resp’t, v. Alfred H. Smith, Impleaded with Others, App’lts.

      New York Superior Court, General Term,

      Filed June 23, 1887.)

    Statute of limitations—When it begins to bun.
    The plaintiff delivered to defendants two registered United States bonds endorsed in blank, and they gave him a receipt by which they acknowleged the receipt of the bonds, describing them specifically by number, and agreed to return them to plaintiff upon demand. Held, that a special demand was necessary to set the statute of limitations running.
    Appeal from judgment entered upon the verdict of a jury, and from order denying defendants’ motion upon the minutes for a new trial.
    On December 21, 1868, the plaintiff was the owner of two United States registered bonds, which bonds were for the sum of $5,000 each, and numbered 2036 and 2037; on said day the plaintiff, at the request of defendants, delivered the bonds, endorsed by him in blank, to a firm composed of the defendants herein and one Starbuck, now dead, and the defendants gave him a receipt or certificate by which they acknowledged the receipt of the bonds, describing them specifically by number, and agreed to return them to plaintiff upon demand.
    This transaction took place at the city of New York, where the defendants were' doing business as Smith, Clarke Co.
    The bonds were taken by the said firm for the purpose of hypothecating them to-obtain a loan; the bonds were so used for some time by the firm until it went into liquidation.
    The plaintiff, in the month of June, 1886, demanded of the defendants that they should give him back his bonds; the defendants refused to do so, and shortly after .this demand and refusal this action was brought to recover the value of the bonds.
    William W. Clark, one of the defendants, made no defense; Alfred H. Smith, the other defendant, interposed two defenses, the statute of limitations and a denial that the transaction sued upon was a transaction of the firm, but a transaction between plaintiff and Clark, as an individual.

      Harriman & Fessenden, for resp’t; Thornton, Earle & Kiendl, for appl’ts.
   Per Curiam.

The case was properly submitted to the jury. The transaction between the parties was of such a.' character that a special demand was necessary to set the statute of limitations running. Their being no competent evidence that a return of the bonds in question was demanded before June 22, 1886, the action is not barred by statue. None of the exceptions of the appellant seem to be well taken, and the verdict cannot be disturbed on the-facts.

The judgment and order should be affirmed, with costs.


author: Sedgwick, J.

text:
    Frederick F. Waters, App’lt, v. Robert K. Davies, et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed June 23, 1887.)

    1. Contract on employment—Construction.
    The contract of employment was “in consideration of Mr. F. F. Waters having agreed to give his undivided time and services in our business, as we may direct, we agree to pay him a salary, etc., for a term of two years,” etc. The services of the plaintiff were in travelling over the country and selling defendant’s goods. Shortly before January twelfth, they directed him to go to S't. Paul, with samples, and to take a room and sell in and from it. He refused to go unless the defendants would agree-to pay him besides his salary up to eight dollars for his expenses of traveling. Held, that the service demanded was within the contract. _ That plaintiff could not legally call for any further agreement than the implied agreement to reimburse him for all necessary expenses.
    2. Same—Salary—When employee entitled to.
    It had been the custom to pay the salary the first and fifteenth of each month. The plaintiff was discharged on the twelfth of January for refusing to follow directions. Held, he was not entitled to any pay for his services from the first of the month.
    Appeal by plaintiff from judgment dismissing complaint entered on direction of judge at trial term before a jury.

      George Wilcox, for app’lt; B. F. Watson, for resp’t.
   Sedgwick, J.

The action was for damages from an alleged breach of a contract of employment of plaintiff by defendants, in the latter discharging the plaintiff and refusing to continue the employment.

The contract was in Writing as follows: “In consideration of Mr. F. F. Waters having agreed to give his undivided time and services in our business as we may direct, we agree to pay him a salary, etc., for a term of two years, etc.”'

The salary was paid up to January 1,1886, and not after-wards. The plaintiff had been in the service of the defendants for a long time, and during all the time down to the discharge, he was paid On the first and fifteenth of each month, unless these dates were of Sundays, when a change was made to an earlier or later day. His service was in traveling over the country widely and selling defendant’s goods carried about by him. Shortly before the 12th of January, 1886, the defendants directed the plaintiff to go to St. Paul with samples, and to take a room and sell in and from it. In my opinion the service demanded was within the contract. The plaintiff did not go, and when asked if he refused to go, said he did not refuse, but would go if they would pay him or agree to pay him besides his salary up to eight dollars a day for his expenses of traveling. In substance the plaintiff demanded that before he should follow the directions of his employers they should make an oral agreement as to his expenses in addition to the written agreement which had by implication settled the obligation of defendants as to expenses. They had already impliedly agreed to reimburse him for all necessary or reasonable disbursements he should make in carrying out any direction they might give him under the contract. He could not legally call for any further agreement.

It may be suggested that in response to plaintiff’s claim for expenses up to eight dollars a day, the defendants said they would agree to pay three dollars a day, and therefore they notified the plaintiff that they would not carry out the written contract, their obligation being to pay reasonable expenses, even if they should exceed three dollars a day. In reality, however, this was only an expression of their willingness to make an additional arrangement on the terms they proposed, which was ineffectual if the plaintiff should not assent to it. But if no additional arrangement was made there is no evidence tending to show that defendants declared if plaintiff should obey instructions and make the reasonable disbursements intended by the contract, the defendants would not perform their part. I, therefore, think that the learned judge correctly held that the defendants were justified in discharging the plaintiff.

It is claimed that the plaintiff was entitled to a verdict for the contract value of his services from the first to the twelfth of January, when he was discharged The nature of the contract implied that payment was not to be delayed until the end of the two years and the undertanding of the parties as to when it should be paid, was ascertained by the practice, objected to by neither of paying on the first and fifteenth of each month. As the plaintiff was discharged for cause before the fifteenth, and no new instalment would fall due before that time, the plaintiff was not entitled to salary for the time now in question.

In my opinion the judgment should be affirmed, with costs.

Freedman and Truax, JJ., concur.


text:
    Katie Collins as Adm’r, etc., of Timothy Collins, Deceased, Resp’t, v. The New York, New Haven and Hartford R. R. Co., App’lt.

      (New York Superior Court, General Term,

      Filed June 23, 1887.)

    1. Negligence—Railroad—When a question of fact for the jury.
    The intestate had been employed to work in the yard of the defendants by one who had contracted with the defendants to lay water pipes in the yard. There were many tracks in the yard parellel, converging, etc., on which trains were made up, etc., with the use of locomotives. A track on which the freight car which struck the intestate ran, crossed the trench being dug by intestate and others, and part of this trench was between this track and another track on which a passenger train ran. The intestate was at work between the two tracks which were only nine feet agart. One of the defendants’ servants called to the intes: ate, directing him to guard against said passenger train, and he moved from the passenger track toward the freight track, and so near that he was struck by a freight car which had been backed from another track. The injury so received resulting in bis death. Held, that the question of intestate’s negligence was for the jury.
    2. Same—Licensee—When one is not—Duty in conducting business.
    The deceased was not a l'censee. He had been in effect induced and requested by the defendants to come upon the yard and work in it for their benefit as well as his own. As to such a one the defendant owed a duty to be ordinarily prudent in the conduct of their business.
    Appeal by defendant from judgment entered upon verdict for plaintiff, and from order denying motion for new trial.

      Frank Loomis, for app’lt; Henry H. Spelman, for resp’t.
   Sedgwick, J.

The action was under the statute for damages for causing the death of plaintiff’s intestate by negligence.

The intestate had been employed to work in the yard of the defendants by one who had contracted with the defendants to lay water pipes in the .yard. The intestate was working under that employment at the time he was killed. There were many tracks in the yard, parallel, converging and crossing, on which trains were made up and broken up with the use of locomotive engines. The plaintiff had been working there about one week. At the time of the accident two of his fellows had been digging a trench; A track on which the freight car which struck the intestate ran, crossed the trench. Part of the trench was between the track and another track on which a passenger train ran. Just before the accident, the intestate was between the two tracks spreading about dirt which was thrown from the trench. He had stopped his work, and the place where he stood, within a short time before he was struck, was indefinitely described by the witnesses, but the distance .between the tracks was about nine feet seven inches. Cars running upon the tracks would overhang them in the case of a passenger car, two feet, three inches; and in the case of a freight car, one foot and six inches. A passenger train was moving on the one track easterly at a distance of 125 feet from where Collins, the intestate, stood. One Mc-Caffery, a servant of defendants, had at this time switched a track, on which the freight car afterwards ran, so that it might ran upon it. The freight car did not ran upon the track immediately after the switching. Before it ran,' McCaffery noticed the passenger train in motion and called out to Collins, as the jury might have found, to be on his guard against the passenger train. At this point the freight car came over its track westerly, but McCaffery did not notice its coming until it was within two or three feet-from Collins. Collins, from the time his attention was called to the passenger train by McCaffery, had moved away from the passenger track and towards the freight track. McCaffery saw that he was in danger from the freight car only when Collins was so near the line that the outside of the freight car would take, that the accident was unavoidable. McCaffery, therefore, did not say anything to Collins and Collins was struck upon the shoulder by the freight car and-the injury he received caused his death. McCaffery saw that Collins looked in the direction of the coming freight car over his shoulder, and tried to get out of the way, but when it was too late. The testimony would have justified the jury in finding against McCaffery’s testimony on this point that Collins was not at any time upon the freight track and was struck by the overhanging part of the car. .

• It is maintained in the first place by the learned counsel for appellant, that Collins was in safety between the two' tracks; that common prudence required him to remain there, and that if he moved away, as he did, from the place of safety,-he was bound, to look upon the freight track for any approaching car. At the time Collins was struck the passenger car had not come up and passed him. The general rules on this subject, laid down to be applied to circumstances generally existing, are not to be considered apart from the peculiarity of this case, that it was a question for the jury, as to the extent to which the mind of a man of ordinary capacity might be affected by the situation and the specified direction of the defendant’s servant as to the passenger train, when defendant’s servant, having the whole field of danger in view, turned the attention of Collins solely to the passenger train, a jury might find that it was not a want of ordinary prudence to give so much attention to that train; that it led to a want of ordinary attention to a possible danger from a car on the freight track, especially when Mr. McCaffery did not give a warning as to the freight car, and in fact did not notice its coming in time for Collins to be prepared for it. The _ situation was peculiar; the space between the tracks furnished safety for Collins, certainly, if he were without the nerves and the sensations of persons not engaged in railroad matters, such persons are not in the habit of standing within' three feet of a passing train going very rapidly, with the usual puffing and escape of steam. Six feet away would, the jury might find, be a distance that ordinary persons might seek. I, therefore, think that the judge was right in leaving to the jury to determine whether the intestate was negligent. For cited reasons the court properly refused to charge that it was the duty of the deceased to have looked for an approaching car on the freight track.

The court was asked to charge certain propositions based upon the assumption that the deceased was a licensee. The deceased was not a licensee. He had been in effect induced and requested by the defendants to come upon the yard and work in it, for their benefit as well as his own. Cordell v. The N. Y. C. and H. R. R. Co., 70 N. Y., 118. As to one so prudent the defendant owed a duty to be ordinarily prudent in the conduct of their business.

Certain requests presented the proposition that the defendants were not bound to do the things described in the requests. The court rightly refused to charge these matters because under the charge as made, the liability of the defendants was not made to rest upon the doing of these things, but upon defendants’ want of care in the running the car upon the Collins under the circumstances.

I am of the opinion the judgment and order should be • affirmed, with costs.

Freedman, J., concurs.


author: Ruder, Ch. J.

text:
    Caroline M. Mittnacht, App’lt, v. John Kellemann, Resp’t.

      (Court of Appeals,

      Filed April 26, 1887.)

    1. Jurisdiction—District court of New York—No power to transfer ACTION FOR CLAIM AND DELIVERY INTO COMMON PLEAS--LAWS 1857, chap. 844, § 2, sued. 3—Undertaking on removal void.
    A district court of the city of New York has no authority under subd. 3, § 2, of chapter 344, Laws 1857, to order an action for claim and delivery to be transferred from that court into the court of common pleas, and an undertaking given to pay the amount of any judgment awarded by court of common pleas, on such removal, is void as without consideration.
    2. Same.
    Even if the bond had been given upon a sufficient consideration no breach of its conditions was shown in this instance as the court of common pleas never acquired jurisdiction of the person of defendant and the bond referred to a valid judgment.
    8. Same.
    The subsequent appearance of plaintiff in the court of common pleas added nothing to the force of the bond, as the parties could not by voluntary action or agreement create a consideration for an undertaking which had no existence at the time of its execution.
    4. Same.
    Defendant was not estopped from disputing the jurisdiction of the court of common pleas by the recitals in the undertaking.
    Appeal from general term of the court of common pleas for city and county of New York, affirming judgment of general term of marine court, affirming judgment of trial term for defendant, who was surety on bond given for transfer of cause from the district court to the court of common pleas of the city of New York.

      Christopher Fine, for app’lt; Jacob L. Hanes, for resp’t.
   Ruder, Ch. J.

In December, 1876, one Jacob Mittnacht commenced an action of claim and delivery for the recovery of property in a district court of the city of New York against John B. Grschwind. Issue was joined in the action, and immediately thereupon the defendant commenced proceedings to remove the case into the court of common pleas of the city of New York. For that purpose he procured to be executed and filed in said district court an undertaking signed by himself, as principal, and John Kellermann and Frederick Dieterle, as sureties, which undertaking, after reciting the commencement of the action under chapter 344 of the Laws of 1857, the joinder of issue therein, that a trial thereof had not been had, and the application of the defendant to remove the case into the court of common pleas under the provisions of said act, continues that now, therefore, we, John B. Grschwind, John Keller-man and Frederick Dieterle, “have, and hereby do, in consideration of the premises aforesaid, and of one dollar to us in hand paid, jointly and severally promise and agree that we will pay to the plaintiff the amount of any judgment that may be awarded against the defendants by the said court of common pleas in this action.” The district court thereupon assumed to make an order removing the case into the court of common pleas, upon the ex parte application of the defendant therein. Thereupon the plaintiff caused said action to be placed upon the calendar of the court of common pleas at a trial term thereof, and when the case was reached, in the regular course of proceedings, moved the same for trial, and, the defendant not appearing, took his default, and entered judgment, upon an inquest, for the return of the property described, and, in case that could not be had, for the amount of $250, its assessed value. No appearance in the action was in any way made in the court of common pleas by the defendant after its attempted removal there, and it does not appear that he ever took any steps in the original action after obtaining the order of removal.

This action is brought to recover the damages arising out of an alleged breach of the undertaking given on the attempted removal. The grounds upon which liability is contested are that the undertaking was without consideration; that the district court had no authority to order a removal of an action for claim and delivery from that court-into the court of common pleas, and that the latter court acquired no jurisdiction of the case by reason of the proceedings to remove it and has rendered no valid judgment, in such action.

It seems to us quite clear that the district court had no authority to order an action for claim and delivery to be transferred from that court into the court of common pleas. By chapter 344 of the Laws of 1857, being an act to consolidate the several acts relating to districts courts in the-city of New -York, it is provided by section 3 that such courts have jurisdiction in the following actions : (i) In actions similar to those provided by sections 53 and 54 of the Code of Procedure, where the sum named shall not. exceed $250; (2) In an action upon the charter, ordinances, or by-laws of the corporation of the city of New York, or a statute of this state, where the penalty shall exceed $250. It is then provided by subdivision 3 of that section, that “in any action commenced in pursuance of this section, where the claim or demand shall exceed the sum of $100, upon the application of the defendant, the justice shall make an order removing the same, at any time after issue joined,, and before the trial of the same, into the court of common pleas in and for the city and county of New York, upon the defendant executing to the plaintiff an undertaking with one or more sufficient sureties to be approved of by the justice of the court, in which such action is commenced, to pay to the plaintiff the amount of any judgment that may be awarded against the defendant by the said court of common pleas.”

It will be observed that this act conferred no jurisdiction-upon the district courts to entertain any actions except those calling for the relief to be obtained by money judgments. It is not claimed that they thereby obtained any jurisdiction of an action for claim and delivery.

By section 17 of chapter 484 of the Laws of 1862, jurisdiction was conferred upon district courts to hear and determine actions for claims and delivery, where the value of the property claimed did not exceed $250. The question whether such an action was removable into the court of common pleas, under section 3 of the act of 1857, arose in that court in 1876, in the case of Curtis v. Besson (6 Daly, 432), where it was held that it was not; the court saying that the act of 1862 made no provision for such removal,, and that the terms of the provisions of section 3 of the act of 1857 were inconsistent with the theory that such power of removal was intended to be conferred. They say: “By that section conferring jurisdiction solely of actions for the recovery of money, the power of removal is only in such, actions (referred to in subdivisions 1 and 2), and the obligation of the undertaking required in such a proceeding is to pay ‘the amount of any (money) judgment;’ while, in a proceeding for the removal of the action for the recovery of the possession of personal property, any such an obligation would be unadapted to the case, and would not furnish the plaintiff with the security for the performance of such terms as the judgment, in such an action, in favor of the plaintiff, would award.” Great weight must be given to the opinions of that court upon questions affecting its-own practice and jurisdiction, and we should be reluctant, to overrule its disposition of such cases, especially when they had been long acquiesced in, even if we were not entirely satisfied with the reasons given therefor. But we-are also of the opinion that the decision of that case was. a correct exposition of the meaning and intent of the statute-referred to.

It follows, from these views, that the order of the district court, removing the original case to the court of common pleas, was without jurisdiction, and did not effect such removal; that the court of common pleas acquired no jurisdiction of that action by force of the order of removal, and that all subsequent proceedings in that court were void and. of no effect. It also follows, from these views, that the execution of the undertaking in question was not made-under any statutory authority, and it cannot be supported, upon the theory that it was executed according to any requirement of law.

Although it may be open to some question whether the security in question comes within the provisions of the statute against bonds taken colore officii (Decker v. Judson, 16 N. Y., 439), it yet derives no support from the statute, and must be sustained, if sustainable at all, upon some other theory. The general rule that bonds taken by public officers, purporting to be taken under statutory authority, but which are not actually authorized by the statute, or do not conform in all material respects with its provisions, are void, is too well established by authority to be questioned or disputed. Post v. Doremus, 60 N. Y., 371; People v. Meighan, 1 Hill, 299; Homan v. Brinckerhoff, 1 Denio, 184.

Some claim -has been made the that it "be upheld as a valid instrument at common law; but such an instrument, like other contracts made between parties, requires a consideration to support it. This contract has none. It was a unilateral undertaking, executed by defendant in an action, acting in hostility to the plaintiff, and by which he sought to obtain an advantageous position in the litigation, against the will of his adversary. If it had force, it was not by any agreement or consent of the parties, but was the act of one party attempted to be imposed upon the other, as a compliance with an assumed statutory authority-. It was not claimed that it had any other efficacy than such as the statute gave it. The admission of the receipt of one dollar' does not state who received it, or from whom it came. Ordinarily such an acknowledgment would import that it came from the obligee, but such an inference cannot legally be indulged when the situation of the parties forbids it. It cannot be presumed that a hostile party in a lawsuit has advanced money to his adversary to enable a proceeding to be taken which he did not know of, and would naturally desire to defeat. This bond was not given as the condition of any favor extended by the court, or as the price of any consideration to be granted by the plaintiff, but was an ex parte proceeding to compel a removal of the case under the claim of a legal right. The defendant did not ask any favor of the plaintiff, and proceeded regardless of his assent or dissent to the proceeding. We therefore think the bond was invalid, as being wholly without consideration.

Assuming, however, that the bond was given upon a sufficient consideration, we are of the opinion that no breach of its conditions has been shown, and that the court of common pleas has never rendered judgment in the action against the defendant. Admitting that the court of common pleas had jurisdiction of actions for claim and delivery, it does not appear that they ever acquired jurisdiction of the person of the defendant. No process of that court was ever served upon him, and he never, in any manner, appeared in the action after its attempted removal to that court. The bond was conditioned to pay any judgment that the court of common pleas should render against the defendant. This clearly implies that it should be a valid judgment of that court, and not the expression of an ineffectual opinion. A decision of that court which it had no authority to make, lacks all of the essential qualities of a judgment. As we have heretofore seen, the court of common pleas acquired no' jurisdiction from the order of the district court, and it acquired none by any subsequent proceedings. That court could not, therefore, render a judgment in that action.

The appellant also claims that the defendants should be precluded from raising the questions as to the invalidity of this bond, because they have not been raised by answer. It will be observed that the questions raised all appear on the face of the complaint, and lie at the foundation of the action. In any view that we can take of the case, no cause of action was stated in the complaint. The subsequent appearance of the plaintiff in the action in the court of common pleas adds nothing to the force of the bond, for the obligation executed by the sureties was either legal when the contemplated action had been taken upon it, or it was then void. The parties to the action could not, by their voluntary action or agreement, create a consideration for an undertaking which had no existence at the time of its execution. While it may be assumed that the parties intended to execute an instrument which should be effectual to remove the case to the court of common pleas, we have no authority to say they intended thereby to leave it optional with the plaintiff to remove it or not, as he should after-wards elect.

Finally, it is claimed that the defendant is estopped- from disputing the jurisdiction of the court of common pleas by the recitals in the undertaking, and that he thereby admits that it did or would acquire jurisdiction by the order of removal. We do not see what recitals there are in this instrument which affirm such a fact, or estop the sureties from availing themselves of the insufficiency or invalidity of the instrument. It may be inferred, from the language of the bond, that the defendant intended to claim that, by filing such a paper, and moving the court to transfer the case, he had, under the act of 1857, the right to have the case removed into the court of common pleas; but there is no recital therein which he now controverts, and none which directly affirms either as fact or opinion. At the strongest, which was then said amounted only to an inference as to what was the defendant’s opinion; and this, honestly entertained and expressed, cannot be the basis of an estoppel or a contract.

The authorities cited by the counsel for the appellant, to the effect that parties to an undertaking are bound by the recitals therein contained, are quite inapplicable to this case, for there are no recitals in this instrument which it is now necessary for him to controvert. The judgment should, therefore, be affirmed»

All concur.


author: Andrews, J.

text:
    Ann Colrick, Adm’rx, etc., Resp’t, v. Sarah A. Swinburne, and Ano., Adm’rs, etc., App’lts.

      (Court of Appeals,

      Filed May 3, 1887.)

    1. Water course—Diversion of—Damages for.
    The proper rule of damages, for the diversion of water of a spring from its natural channel, whereby plaintiff was deprived of its use for his tannery, is the diminished rental of the tannery premises for the purposes of that business during the period of diversion.
    2. Same—Pleading.
    It is not material that the plaintiff did not demand the precise damages-to which he was entitled, or that he mistook the true rule of damages in his complaint, and whore the complaint averred a legal wrong, and a resulting pecuniary injury, it is competent for the court to adjust the recovery upon the true basis.
    3. Same.
    The objection that plaintiff was confined to damages, as specified in his bill of particulars, should have been raised when the objectionable evidence was offered, and the court was not bound to entertain it on the motion for a non-suit.
    4. Statute of limitations—Code Civ. Pro., g 383, sued. 4.
    Such an action is not barred by the three or six years statute of limitations; it concerns a continuing injury.
    5. Same—Inflaming damages.
    If jfiaintiff, by his culpable neglect or inaction, inflamed his damages,, the burden of proving it was upon the defendant.
    Appeal from supreme court, general term, Fourth department.
    Plaintiff’s intestate, in 1868, purchased a tannery, which had been erected in 1810, on a small stream running from a-living stream, about twenty rods distant. It had always' been used as a tannery, and he so continued to use it. ■ Subsequently to the purchase R-. G-. Swinburne bought the land on which the spring was located and, in 1871, boxed it.' up, packing the bulkhead with clay so that no water could, escape except such as passed through a pipe to his barns, and thence to a blind ditch in the highway below the tannery.

      Ira Shafer, for app’lts; Palmer, Weed, Kellogg & Smith, for resp’t.

       Affirming 32 Hun, 644, mem.

   Andrews, J.

The diversion of the water of the spring from its natural channel, whereby the plaintiff’s intestate was deprived of its use.for his. tannery, was a legal injury,' for which he was entitled to compensation in damages. Arnold v. Foot, 12 Wend., 330; Smith v. Adams, 6 Paige, 435; Clinton v. Myers, 46 N. Y., 511. Whether the use by Swinburne was a reasonable exercise of his right was a. question of fact which has been found against him upon sufficient and competent evidence. Prentice v. Geiger, 74 N. Y., 341. The proper rule of damages, under the circumstances, was the diminished rental value of the tannery premises for the purposes of that business during the period of diversion. The rental value of land is a fact ascertainable with reasonable certainty, and is the basis upon which damages are frequently awarded. Cassidy v. Le Fevre, 45 N. Y., 562; Francis v. Schoelkopf, 53 id., 152. The complaint was sufficiently specific to authorize the recovery of whatever legal damages were recoverable for the wrong. The gravamen of the action was the wrongful diversion whereby the plaintiff was deprived of the use of the water on his premises for the purposes of his business. It is not material that the plaintiff did not demand the precise damages to which he was entitled, or that he mistook the' true rule of damages in his complaint. The complaint averred a legal wrong and a resulting pecuniary injury, and it was competent for the court, under the complaint, to adjust the recovery upon the true basis. It is a sufficient answer to the objection that the plaintiff, by his bill of particulars, was confined to a recovery of damages of the exact nature therein specified; that the objection was not taken until the close of the plaintiff’s proofs, and after the evidence of rental value had been given, without raising any question that it was not competent on the ground of variance from the bill of particulars. This technical objection should have been raised when the evidence was offered, and the court was not bound to entertain it on the motion for a nonsuit.

The action was not barred by the three-years statute of limitations contained in subdivision 4, section 383, Code Civil Procedure. The action was not an action to recover a chattel, or damages for taking, detaining, or injuring personal property. Nor was the action barred by the six-years limitation except as to the damages accrued prior to the six years before the commencement of the action, and the further extension allowed in case of suits by or against executors or administrators. The diversion of the water was a continuing injury, and the wrong was not referable exclusively to the day when the original wrong was committed. Arnold v. Hudson R. R. Co., 55 N. Y., 661; Waggoner v. Jermaine, 3 Denio., 306; Uline v. New York Central and Hudson R. R. Co., 101 N. Y., 98; Bare v. Hoffman, 79 Pa. St., 71; Thayer v. Brooks, 17 Ohio, 489.

The note given by the plaintiff’s intestate, in 1873, to Swinburne, did not raise any presumption that there was then no cause of action for the wrongful diversion of the water. Moreover, it was limited to damages which accrued to that time.

The claim that the plaintiff’s intestate should have constructed a ditch for returning the water to his premises, or have supplied himself with the water from the lake, assumes that he had, or could have procured, the right to go upon the premises of strangers for that purpose, of which there is no proof. If the plaintiff’s intestate, by his culpable neglect or inaction, inflamed his damages, the burden of proving it was upon the defendant. There is no evidence upon which such a finding could be required or even justified.

The case does not seem to be very meritorious, but we find no error in the record, and the judgment must therefore be affirmed.

All concur.


author: Rapallo, J.

text:
    The Flour City National Bank of Rochester, App’lt, v. The Traders National Bank of Rochester, Resp’t.

      (Court of Appeals,

      Filed May 10, 1887.)

    Banks and banking—Certified drafts—Holder in good faith.
    By a system of exchanges among the banks of Rochester, commercial paper held by one, payable at another, instead of being paid on presentation was marked “certified,” and was then returned to the bank which had presented it, and held as an item of credit to such bank in its exchange account with the certifying bank and offset against any similar credit in favor of that bank which might arise during the same day for paper certified by it; the following day the exchange accounts were compared and the balance paid. On the 19th of December, 1882, a draft for $800 upon one Gordon, and accepted by him December 15, payable at plaintiff’s bank, was presented by the City Bank of Rochester to plaintiff, and marked “certified” by it and returned to the City Bank. Plaintiff had $1,900 of certified paper against the City Bank. On the same day there was a balance of exchanges in favor of plaintiff against defendant of $4,632.66, but which included the Gordon item. The City Bank became insolvent on that day. Defendant claimed said item and has never paid it, on the ground that it had taken it as a cash payment from the City Bank, and that it had required the City Bank, contrary to the custom, to settle each day. Meld, that whatever might have been the rights of an innocent party, taking the certified draft in ignorance of the purpose for which the certification had been made, and of the right of plaintiff to apply it on a pending account, defendant, in taking this paper from a failing bank, was not, under the circumstances, a holder in good faith. It purchased what it knew to be a mere voucher for an item in an account to be settled, and necessarily took it subject to the result of the settlement of that account.
    Appeal from supreme court, general term, fifth department.

      Thomas C. Montgomery, for pl’ff and app’lt, William F. Cogswell, for resp’t.

       Reversing 38 Hun, 637, mem.

   Rapallo, J.

By the system of exchanges established among the banks in "the city of Rochester, commercial paper held by either of such banks, payable at any of the others, on being presented at maturity at the bank at which it was made payable, instead of being paid on presentation, was marked by the teller of the bank where payable, “certified,” and was then returned to the bank which had presented it, for the purpose of being held as an item of credit to such bank in its exchange account for the day with the certifying bank, and being offset against any similar credit in favor of that bank against the other, which might arise during the same day for paper presented at and. certified by it. On the following day these exchange accounts were compared, and the balance only was paid by the debtor bank to the other. Under this system the purpose of the certification was not to furnish to the bank receiving it a negotiable instrument, which might be put in circulation, but simply to furnish it with a voucher 0.1 memorandum, to be used as a credit on the settlement the next day of its exchange account with the certifying bank. If paper certified under these circumstances should be used by the bank receiving it as negotiable paper, and passed off as such to any one who would receive it, it is evident that the exchange system could not subsist.

All the banks concerned in the present litigation were doing business in the city of Rochester, and were parties to this system of exchanges, and had exchange accounts with each other. The plaintiff and the defendant had an exchange account with each other, and each had an exchange account with the City Bank of Rochester. On the 19th of December, 1882, a draft for 8800, drawn by Wellington Bros. & Co. upon Gordon, payable at one day’s sight, to the order of the casher of the City Bank of Rochester, and accepted by Gordon on the fifteenth of December, payable at the Flour City Bank of Rochester (the plaintiff), was presented by the City Bank of Rochester to the plaintiff, it having matured on the ninteenth. Instead of paying it, the plaintiff, in accordance with the exchange system, marked it “ Certified,” and returned it to the City Bank, to be used the next day in the settlement of its exchanges with the plaintiff, charging it to Gordon as having been paid. On the same day the plaintiff held commercial paper payable at the City Bank of Rochester, and on presenting it at that bank received its certifications, in lieu of payment, to the amount of over $1, 900, which were held by the plaintiff to be charged to the City Bank on the settlement of the exchange account, leaving a balance at the close of the day’s transactions in favor of the plaintiff against the City Bank of over $1,100, after crediting the $800 draft. At the close of the same day (December 19, 1882), there was a balance due to the plaintiff from the defendant on their exchange account for the day, and on the morning of "the twentieth of December the items of the previous clay in favor of the plaintiff in its exchange account with the defendant amounted to $26,423.15, and were undisputed, and the defendant, in settlement of this amount, sent in to the plaintiff $21,790.59, in cash, and an account of items which it claimed in its favor, amounting to $4,632.56, but in which was included the before-mentioned $800 Gordon acceptance, which had been certified by the plaintiff on the nineteenth for the City Bank of Rochester, and belonged in the exchange account of the plaintiff with the City Bank of Rochester. The City Bank of Rochester had finally stopped business at the close of the business day on the nineteenth of December, and was then insolvent, and did did not afterwards resume.

The plaintiff, on the morning of December twentieth, on discovering that the Gordon acceptance was among the items of credit claimed by the defendant in its exchange ' account, refused to allow it, and immediately returned it to the defendant, with a statement that the plaintiff had offsets to a much larger amount in its account with the City Bank. The defendant insisted on being credited with the Gordon acceptance, and has never paid the balance of $800 claimed by the plaintiff, and hence this action. The trial court found that defendant had received the certified ■ Gordon acceptance from the City Bank of Rochester on the •nineteenth of December, 1882, under the following circumstances: Although, by the usual customs between the the banks, the exchanges were to be made on the day following the certifications, the defendant, instead of exchanging with the City Bank in the usual way, had for a month ■previous to the nineteenth of December, 1882, required of the City Bank a settlement each day of the balance of that day, instead of settling on the morning after. On the .nineteenth of December, on exchanging their respective demands due on that day, there was found due from the City Bank to the defendant a balance of $8,000; and the said Gordon acceptance, certified by the plaintiff, was thereupon transferred by the City Bank to the defendant as .a payment of $800 of the balance, the remainder being otherwise paid, and the defendant surrendering its demands against the City Bank in consideration of such payment and transfer. It was further found by the trial court that prior to November 19, 1882, the exchanges between the defendant and the City Bank had been settled in accordance with the general custom among banks before stated—that is, on the day after the paper became due—and was certified; but that the defendant had adopted the course of requiring from the City Bank a settlement on the sai ;e day, because it -was unwilling to give credit to the City Bank; that this Gordon acceptance was taken by the defendant from the City Bank under circumstances which charged the defendant with notice that it was intended to be used in settling the exchanges between the plaintiff and the City Bank; that the intention of the plaintiff in certifying the Gordon acceptance instead of paying it was that it might be offset by any cash demands which the plaintiff might have against the City Bank, and that such certificatiou carried with it notice of such intention to the defendant; and that the defendant took the said Gordon acceptance with notice that it was diverted from the purpose for which it had been certified by the plaintiff. On the nineteenth of December, and before the Gordon acceptance was passed off by the City Bank to the defendant, the City Bank had certified paper held by the plaintiff to the amount of $1,900.

On the first trial of this action the special term held that the certification in question was not negotiable, and rendered judgment in favor of the plaintiff. This judgment was reversed at general term, and a new trial ordered. On the second trial the court, at special term, conforming to the decision at general term, rendered judgment for the defendant, and that judgment was affirmed, and the plaintiff now appeals to this court.

It is claimed on the part of the plaintiff that the certification, being of an acceptance payable on time, was notice that the paper had matured, and been presented for payment at maturity, and that as to all the parties to the bill the certification was a payment which discharged them, and the paper had lost its negotiable character. On the other hand, it is claimed that, although all the parties to the bill were discharged, and as to them the paper had ceased to be negotiable, yet as to the bank certifying it the certification was equivalent to a certificate of deposit payable to bearer on demand, and as such was negotiable as against the bank. We do not deem it necessary to pass upon this question, because, to entitle the holder of the certification to recover upon it without regard to the equities between the certifying bank and the party to whom the certification had been issued, it was necessary, not only that it should be negotiable, but that the party claiming on the certification should have received it in good faith, and without notice of those equities. It seems to us that the defendant in this case does not, under the facts found, occupy that position. The defendant received the certification with notice that it represented an item merely in the exchange account between the City Bank of Rochester and the plaintiff, and that whether anything would be due or payable upon it would depend upon the state of the exchange account between the two banks at the close of the day; that it was certified for the purpose of being used in the settlement of that account. This was notice that it was intended as a mere voucher, and was not made for purposes of negotiation; and it is expressly found that the defendant took it with notice that in transferring it to them the City Bank was diverting it from the purpose for which it had been certified by the plaintiff. It matters not that the defendant did not know the actual state of the exchange account between the City Bank and the plaintiff. As matter of fact, it appears, from the findings, that at the time the defendant received the plaintiff’s certification from the City Bank it had been more than paid by certifications which had been made by that bank, and were held by the plaintiff. But it is not necessary that the defendant should have had notice of that fact. It knew that there was an exchange account between the plaintiff and the City Bank, and that the certification was subject to the settlement of that account on the following day, and also that, in the ordinary course of business, it was probable that the City Bank held paper certified by the plaintiff against which this certification was applicable. By insisting on the City Bank settling with it on the nineteenth, contrary to the general custom, because it doubted the credit of the City Bank, and taking from it this certification for that purpose, it was endeavoring to cast upon the plaintiff, in case it had offsets, the risk which it was unwilling to. incur, and to subject the plaintiff to the chance of the City Bank providing other means, if required, of meeting its liabilities to the plaintiff. 'Whatever might have been the rights of an innocent party taking the certified draft in ignorance of the purposes for which the certification had been made, and of the right of the plaintiff to apply it on a pending account,, we cannot hold, in the face of the facts found, that the defendant, in taking this paper from a failing bank, under the circumstances became a holder in good faith. It purchased what it knew to be a mere voucher for an item in an account to be settled, and necessarily took it subject to the result of the settlement of that account.

The judgments of the general and special terms should be reversed, and new trial ordered, costs to abide tha event.

All concur.


text:
    The People of the State of New York ex rel. Robert Fairchild, App’lts, v. The Commissioners of the Department of Fire and Buildings in the City of Brooklyn, Resp’ts.

      (Court of Appeals,

      Filed May 10, 1887.)

    Parties—Substitution of administratrix—When proper.
    Relator claims that her husband was improperly dismissed from the Are department and seeks, as his administratrix, to be substituted as plaintiff that she may reverse the orders affirming the proceedings of the Are commissioners. Held, that as in case the decisions below are reversed, she would be entitled to the salary or damages and the estate relieved from costs, the court has power to substitute her as plaintiff.
    Appeal from supreme court, general term, second department.

      Certiorari to annul improper dismissal of employee of fire department. Motion to substitute administratrix of relator, deceased.

      Edward F. O'Dwyer, for motion; Almet F. Jenks, opposed.
   Per Curiam.

At the special term, the proceedings of the commissioners in removing the relator from his office were affirmed, and the writ of certiorari was quashed, with ten dollars costs. At the- general term the order of the special term was affirmed, with ten dollars costs and disbursements. By virtue of these two orders the relator became liable to pay upwards of twenty dollars, and payment of that sum can now be enforced against his estate. If the decisions below were wrong, and the relator was improperly removed from office, and the orders below should be reversed, then upon their reversal the administratrix of the relator would be entitled to recover his salary during the time he was excluded from his office, or damages for such exclusion. Hence, both on account of such costs and the salary, she is interested in the appeal pending in this court. Until the decisions below have been reversed, she cannot enforce payment of any salary, or resist the payment of the costs which have been adjudged against her husband. People v. Hall, 80 N. Y., 117, 127; Nichols v. MacLean, 101 id., 526. In such a case we have no doubt of the power of the court to substitute the administratrix of the deceased relator. People v. Robinson, 29 Barb., 77; Hastinys v. McKinley, 8 How. Pr., 175.

The motion should be granted.

All concur.