text:
    MAX FREUND and others, Appellants, v. THE IMPORTERS AND TRADERS’ NATIONAL BANK, Respondent.

      Accommodation check— right of maker to forbid payment of—Certification—when bank liable on.

    A check, drawn by the plaintiffs for the accommodation of the payee, was, without his indorsement, presented to the defendant by a third person and certified by it; while the check was still in the possession of the defendant, and before its delivery, the plaintiffs directed it not to pay the-check, with which direction its officers declined to comply. Held, that as the defendant was not liable upon the certification until the delivery of the check, it had no authority to pay it, after being forbidden so to do by the plaintiffs; and that, having paid the same and deducted the amount thereof from his account, it was liable to him therefor.
    Appeal from a judgment dismissing the plaintiffs’ complaint, entered on the trial of this action at the circuit.

      D. T. Walden, for the appellants.

      A. R. Dyett, for the respondent.
   Daniels, J.:

The plaintiffs, as depositors, brought this action to recover a balance of their bank account with the defendant, amounting to the sum of $738.88. Before the action was brought, they drew their check for the same amount, payable to the order of M. Oppenheimer & Sons, and delivered it to them for their accommodation. This check was dated on the 1st day of December, 1869, and very soon after it was delivered, it passed into the hands of N. Blun & Sons, without the indorsement of the payees named in it. The next forenoon the plaintiffs directed the defendant not to pay the check, but its officers declined to comply with the direction. Before the direction not to pay was given, N. Blun & Sons had presented the check to the defendant for certification, and it had been formally certified. But the evidence of the plaintiff Freund, who gave the' direction prohibiting payment, tended to . show that, at the time when it was given, the chedk, though certified, was still in the hands of the officers of the bank. He stated that the president informed him that the check was sent by Nathan Blun & Sons, for a certification ; that he requested the bank to give him the check, and they refused to do that.

These statements would justify the inference, that the defendant never had delivered the certificate made by it upon the check. And, for the purpose of determining the propriety of the nonsuit, the plaintiffs are entitled to the benefit of all such inferences as the jury would have been warranted in finding in their favor. They resisted the application made to dismiss their complaint,' and, accordingly, in no manner waived their right to have any disputed question of fact, material to the disposition of the case, decided by the jury. If the evidence disclosed an inquiry of that nature, then the court erred in deciding the case itself, and the exception taken by the plaintiffs to the ruling by which that was done, will .entitle them to another trial, even though they failed to directly request its submissiori to the jury.

As the check was not indorsed by the payees at the time when it was certified by the defendant, and the direction not to pay it was given, N. Blun & Sons, who had constructive possession of it in that condition, were no more than ordinary assignees of it. Their right to hold it, or insist upon its payment, was no greater than that of Oppenheimer & Sons, from whom they received it, and to whose order it had been made payable ; and, as it was a mere accommodation check, drawn and given without any actual consideration, the plaintiffs had the right to countermand the payment of it, at any time before the defendant rendered itself liable upon it. Before that, it was at most a mere direction to the defendant' to pay so much of the plaintiffs’ funds as it amounted to, over to the payees or their order. It was a voluntary assent to that disposition of the money they had in the defendant’s hands, and no obligation was imposed upon them, preventing the direction and assent from being withdrawn at any time before it was acted upon by the defendant, as long as the check was not transferred by indorsement to a holder for value. The evidence tended to show that the bank had merely certified, but had not delivered its certificate, when it was prohibited from paying the check. The certificate, in that condition, imposed no obligation or liability on the bank for the payment of the amount to the holders. A delivery, as well as the making of the certificate, was necessary to render the defendant liable upon it. Until that took place, the certificate was entirely subject to the defendant’s control. It was not bound to deliver it at all; but it had the right to reconsider and erase it, or otherwise remove it, at any time before it passed out of the defendant’s control by a delivery; and it became the defendant’s duty to do that, when the notice was received, forbidding payment of the check. It had then incurred no liability by means of its certificate, and it was not afterward at liberty to create it, and charge the plaintiffs’ funds with the consequences of it. As the fund stood when the notice was given, the plaintiffs were the only persons entitled to receive it from the defendant, and it had no authority, after that, to deprive them of that right, by a delivery of the certificate.

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

Davis, P. J., and Bradt, J., concurred.

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

       Morss v. Osborn, 64 Barb., 543; Cook v. N. Y. Central R. R. Co., 3 Keyes, 476.

       Sheldon v. Atlantic Ins. Co., 26 N. Y., 460, 464, 465; Stone v. Flower, 47 id., 566; Scofield v. Hernandez, id., 313.


source: Caselaw Access Project

author: Beady, J.:

license: Public Domain

text:
    ANNA MARY ZIMMERMAN, by her Guardian, etc., Respondent, v. JOHN S. SCHOENFELDT, Appellant.

      Assent to submission of issues to jury—effect of, on trials befoi'e cowrt — right to hare jury find facts — sufficiency of complaint and form of triad deteo'mined by its allegations and not the prayer foi' relief—Ma/i'ried woman—testamentary powm's of— comeyance to, of property paid foi' by her husband.

    A party assenting to the submission of an issue to the jury cannot, on appeal, avail himself of any informality therein, if any exists.
    The court may, in the trial of an action before it, in every case embraced in section 254 of the Code, have the aid of a jury, and submit to its determination as many or as few questions of fact, presented by the pleadings, as it may deem expedient.
    If a complaint contains all the allegations necessaiy to constitute a cause of action for the removal of a cloud upon title, it is sufficient to sustain a trial conducted in a form appropriate to said cause of action, although the prayer of the complaint is in ejectment.
    Chapter 200, of 1848, as amended by chapter 375, of 1849, does not give to a married woman power to make a testamentary disposition of her real estate while she is an infant.
    A defect of parties apparent on the face of the complaint must be.taken advantage of by demurrer or it is waived.
    A witness may consult a paper in order to refresh his memory, and testify to the fact recorded by it if -he have a recollection of it independent of the paper.
    A conveyance to a wife of property paid for by her husband is not condemned by law in the absence of proof of fraudulent design, and is valid against all persons, except creditors existing at the time of the conveyance, whose demands have not been paid.
    Appeal from a judgment in favor of plaintiff, .entered at Special Term, April, 1873.
    Jacob Wiel and Clara, his wife, by deed, dated March 29th, 1864, conveyed certain premises on the northerly side of Thirty-fifth street, in the city of New York, to Anna M. Zimmerman, wife of Leo Zimmerman, and mother of the plaintiff. The consideration money was paid by Leo Zimmerman, the husband. Mrs. Zimmerman executed a will, by which she devised and bequeathed all her estate to her husband, and subsequently died, leaving her surviving her husband, Leo Zimmerman, and the plaintiff, Anna Mary Zimmerman, her sole issue. The will of Mrs. Zimmerman was duly proved before the surrogate of New York as a will of real and personal estate.
    Subsequently Leo Zimmerman married again, and by deed dated September 22d, 1866, Leo Zimmerman and wife conveyed the premises in question to the defendant, who was in possession, claiming title, when this action was brought.
    The complaint, after stating the death of Anna Mary Zimmerman, June 25th, 1864, alleges: “ That on the 22d day of September, 1866, said defendant, John S. Sehoenfeldt, entered into such premises, and that he unlawfully withholds from the plaintiff the possession thereof, to her damage $8,000. That said Anna Mary Zimmerman was, at' the time of her decease, an infant of the age of nineteen years nine months and nine days, and no more. That the said defendant, Sehoenfeldt, claims to be the owner of said property through a pretended will of said Anna Mary Zimmerman. That said Anna Mary Zimmerman, at the time aforesaid,, leaving said pretended will, was an infant under the age of twenty-one years, and incapable in law of devising real estate. And that said pretended will, if any existed, was and is of no force and virtue, but null and void. Wherefore the plaintiff demands judgment against the said defendant for said sum of $8,000, and for an accounting, and for judgment against said defendant therefor; and that the title of said real estate in fee simple, may be adjudged to be in this plaintiff; and that said defendant do forthwith deliver up to this plaintiff, the possession of said premises and every part thereof; or for such other or further relief in the premises as may be just, with costs.’,’

      Wm. Henry Anthon, for the appellant.
    This was an action in the nature of an ejectment suit, and the complaint should have been dismissed. All the requisites of tenancy by the courtesy were complete, to wit: Marriage, seizin, issue born alive, death of wife, and survivorship of husband and issue. (1 Coke Inst., 30 a; Jackson v. Johnson, 5 Cowen, 87.) The interest of a tenant by the courtesy is not a mere charge or incumbrance; it is a legal estate in the land, and may be set up by a stranger in bar of a recovery by the heir. (Adair v. Lott, 3 Hill, 182.) The husband has all the rights given to him by the common law, which never has been repealed by these later acts. (Ransom v. Nichols, 22 N. Y., 110; Furguson v. Tweedy, 43 id., 543.) The motion to dismiss should have been granted, because it was conceded that Anna Mary Zimmerman, the mother of the plaintiff, was, at the time of making the will in question, a married woman, which overcomes the disability of infancy. (The act of April 7th, 1848, as amended in 1849.) The word “ any ” qualifies this entire provision, and makes marriage the important requirement without consideration of age óther than the legal age of marriage.

      Wm. W. Niles, for the respondent.
    It is not true that any person without regard to age,'may make a will of real estate. The sole power to devise is derived from the statute. (Laws of 1867, chap. 782, § 3.) If there was a defect of parties, it is waived by the answer. (Code, § 148.) The conveyance of a house to one’s wife, to save it from the hazards of business, and to avoid its falling into the hands of creditors, even if that were proved, is not condemned by the law, when there are no creditors existing at the time of the conveyance, as in this case. (Tappan v. Butler, 7 Bosw., 480; Wilbur v. Fradenburgh, 52 Barb., 474; Holmes v. Clark, 48 id., 237; 4 Comstock, 284; Phillips v. Wooster, 36 N. Y., 412.) Even if there had been creditors, the defendant cannot make that objection, for he does not claim to have been one. (Scott v. Guthiur, 10 Bosw., 408.)
   Beady, J.:

It may.be said that the complaint in this action was, in the language of its prayer, in ejectment. It was tried as an equity cause — as one brought to remove a cloud from the plaintiff’s title. One question only was submitted to the jury. There was, apparently, no dispute about the other facts on which the plaintiff relied. It is also apparent that no valid objection, if any, was taken to the course adopted by the presiding judge. The plaintiff claimed the fee of the premises mentioned, as the heir at law of her mother, Anna M. Zimmerman, who died while under the age of twenty-one years. The defendant claimed the fee under a deed executed by Leo Zimmerman and wife. Zimmerman derived his title from the will of his former wife, the plaintiff’s mother, by which he was made sole devisee. The action of ejectment could not be maintained, because the defendant’s grantor was tenant by the courtesy, and entitled to the rents, issues and profits of the land during his life. The enabling act, in reference to married women, passed in 1848, and the amendments thereto in 1849, have not changed the rule of the common law, in this respect.

It was doubtless for this reason, that the trial was conducted in the manner assumed at the circuit. It was claimed upon the argument of the appeal, that the defendant and his counsel regarded the action as one in ejectment. The plaintiff and her counsel insisted that it had not been so regarded by them, and had not, in that aspect, been presented for consideration. That it was brought and prosecuted for the sole purpose of removing a cloud upon the plaintiff’s title, and had been tried on that theory. The presiding judge, in his charge, and before submitting the issue to the jury upon which they were to pass, said: “Independently of this will, itself, the husband during his life is tenant by the courtesy, and would have the right to the possession of the property ; ” and this plainly indicated to the defendant’s counsel what must follow.

The issue submitted was as follows : “Was Anna Mary Zimmerman, the mother- of the plaintiff, twenty-one years of age at the time of her death % ” and to that disposition of the case no objection was made.- The counsel for the defendant excepted generally to the charge, and specially to a part of it, in reference to the testimony of one of the witnesses, which bore upon the age of the decedent. The defendant’s counsel also made a request of the court to charge, but it did not relate to the form of the submission of the case to the jury. The defendant cannot now avail himself of the informality, if one occurred. He assented to the issue which was submitted to the jury for their determination, and is bound by it.

The case of Carr v. Carr, is analogous to this case. The action was brought to recover possession of a house. The defense was, that the deed under which the plaintiff claimed, was taken by him simply as security for a loan of money, to the defendant’s deceased husband. At the close of a trial at circuit before a jury, and after a request to charge by the plaintiff had been refused, and exception taken, the court proposed to counsel that the jury be instructed to find upon particular questions of fact, to be stated in writing, and that, after verdict on such questions, the cause should be decided by the court. The counsel consented, and the court thereupon submitted the questions intended. The point taken, among others, was, that a special • verdict must present all the facts necessary to require in law a judgment, and that the verdict rendered on the questions must be treated as a special verdict, or as a mistrial. The trial was pronounced by the Court of Appeals one, in substance, without a jury, and a decision upon the whole evidence, with the aid of the finding of the jury upon the two questions of fact; and the verdict and judgment were sustained, although the record did not disclose what other facts were found by the court, or what legal effect, if any, was given to the facts found by the jury. In this case, as suggested, the proceedings were in substance and effect the same. The jury found the only disputed fact of any importance, and the court pronounced judgment upon their finding. Indeed, the right of the plaintiff to be relieved from the deed held by the defendant was clear, as we shall see, if the testatrix, under whom his grantor claimed, was incapable of making a will.

The assent of the defendant to the submission of the question passed upon by the jury, was equivalent to a consent thereto, and particularly must this be the case when the defendant did not ask that any other question should be considered by the jury. This case differs, however, from the one cited, in this respect, namely, that all the facts appear in the record, and the judgment rendered is thoroughly understood.

•Secondly : Aside from this consent, there can be no doubt of the right of the court, under the Code, when the cause is called for trial, to order questions to be tried by the jury, if it is apparent that their determination will depend upon conflicting evidence.

There is no doubt either, that if such be the better mode of disposing of the controversy, it may be adopted during the trial. “ I suppose it is the right of the court,” said Justice Harris, in that case, “ to have the aid of the jury upon the trial, in every case embraced in the two hundred and fifty-fourth section of the Oode, and to submit to its determination as many or as few of the questions of fact presented by the pleadings, as it may deem expedient. I have, in repeated instances, availed myself of this power at the circuit.”

The complaint, notwithstanding that in some respects it may have been in form in ejectment,'averred all the facts necessary, to authorize the equitable relief granted by the judgment. It alleged that the defendant claimed through a pretended will of Anna Mary Zimmerman, and that she was an infant, under twenty-one years, incapable of devising real estate. If this was the true source of the defendant’s title, as it was shown to be, then the deed under which he claimed was a cloud, and should be removed. The defendant was, by the allegations mentioned, advised of the precise nature of the plaintiff’s claim, and cannot be regarded as having been surprised at the mode in which the issue was disposed of. It appears, for ¡these reasons, that there was no mistrial, and that what was done at the circuit, was legally and properly done in the respects named.

The respective motions of the defendant’s counsel for a dismissal of the complaint, were properly denied. Sufficient proof had been given, to authorize the submission of the question entertained by the court to the jury; and, on the counsel’s opening of the plaintiff’s case, the facts stated were quite sufficient to demand the continuance of the action, containing, as it did, a statement of the facts upon which she relied for relief.

These views dispose of the questions in relation to the form of the trial. The act of 1848, amended in 1849, provides that any married female may take by inheritance, by gift, grant, devise or bequest, from any person other than her husband, and hold to her sole and separate use, and convey and devise real and personal property, and any interest and estate therein, in the same manner, and with the like effect, as if she were unmarried. It is contended that the word any,” qualifies this entire provision, and makes marriage the important requirement, without consideration of age, other than the legal age of marriage. This is, however, an erroneous view of the laws in question. The only power to devise real property, given by the acts mentioned to married females, is like that which they could exercise if unmarried. They may devise their real estate in the same manner, and with the like effect, as if unmarried. Such is the qualification; such the limit. They were, by this legislation, relieved from a disability created by marriage, and gifted with the same right, in the respect named, as other persons, in reference to the age at which they might act. It was not intended to give them any greater power. Unmarried, they had no power to make a testamentary disposition of their real estate while infants. The statute is express upon this subject, and relates to both sexes: “All persons except idiots, persons of unsound mind, married women, and infants, may devise their real estate,” etc. The act of 1849, repeals the prohibition against married women contained in the Revised Statutes, it is true, but that against infants is not affected, Anna Mary Zimmerman, therefore, had no power to make a valid will. '

It was also suggested on the trial, that Leo Zimmerman, the executor of the last will and testament of A. M. Zimmerman, should have been made a party to the action; but this proposition was not sound. He was devisee and executor under the will. He had conveyed all his interest acquired by the will, and, as to the realty, was estopped by his grant. He had nothing to reserve ■—■ no further interest. He not only aliened his interest, but he was a witness on the trial, and, as the father of the plaintiff, gave evidence on her behalf. The objection stated was waived however. A defect of parties, apparent on the face of the complaint, must be presented by demurrer, or it is waived. None of the exceptions taken, therefore, seems to be available. Those already considered were valueless, and those that remain are equally so.

The right of a witness to consult a paper to refresh his memory, cannot be questioned, nor his competency to testify to the fact recorded by it, if he have a recollection of it independently of the paper. The memorandum is only auxiliary, and not necessarily a part of the evidence. Such was the character of the evidence of John Peter, the father of the decedent, Mrs. Zimmer-man, and the objections to its reception and value were untenable.

The proposition that the defendant could avail himself of the fact that the property .in question was purchased by the money of his grantor, Leo Zimmerman, and should therefore be held to have passed to him by virtue of the deed of the latter, cannot be maintained. The conveyance to the wife is not condemned by law, in the absence of proof of fraudulent design, and is valid against all persons except creditors existing at the time of the conveyance, whose demands have not been paid. The defendant is not a creditor of such standing,

These are the only questions which we consider it necessary to pass upon in detail.

The principles here enunciated cover those remaining, and which are therefore declared to be untenable. No question was raised upon the argument about the form of the decree.

We think the judgment should be affirmed, with costs.

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

Judgment affirmed.

       Matter of Winne, 2 Lans., 21; Ransom v. Nichols, 22 N. Y., 110; Barnes v. Underwood, 47 id., 351; Hatfield v. Sneden, 54 id., 280.

       52 N. Y., 252.

       O’Brien v. Bowes, 4 Bosw., 657, and cases cited; see, also, Brinkley v. Brinkley, 2 N. Y. Sup. Ct R., 501.

       Church v. Freeman, 16 How. Pr., 294.

       Chap. 200.

       Chap. 875.

       2 Statutes at Large, 58.

        Supra.

         See Wadhams v. American Home Missionary Society, 12 N. Y., 415.

       Code, §§ 144, 147, 148; Fisher v. Hall, 41 N. Y., 416; see collection of authorities, Wait’s Code, 240.

      Cole v. Jessup, 10 N. Y., 96; Russell v. Hudson River R. R. Co., 17 id., 134; Huff v. Bennett, 6 id., 337.

       Tappan v. Butler, 7 Bosw., 480; Holmes v. Clark, 48 Barb., 237; Wilbur v. Fradenburgh, 52 id., 474; Phillips v. Wooster, 36 N. Y.,412; Seward v. Jackson, 8 Cowen, 406.


text:
    THE TRADESMEN’S NATIONAL BANK, Plaintiff, v. BERNARD McFEELY and another, Executors, etc., Defendants. THE SAME v. THE SAME.

      Demurrer—judgment on—when roll may be amended.

    Where an order has been made at Special Term overruling a demurrer, with leave to defendant to answer within twenty days on payment of costs, which order has been affirmed at the General Term, and plaintiff has entered judgment, but has failed to file an affidavit showing defendant’s failure to answer, held, that the court may allow the roll to be amended, by adding such affidavit, and, as a condition thereof, may Sheet the judgment to be entered as of the day such amendment is made.
    Appeal from an order made afc Special -Term, amending a judgment-roll' or postea. The defendants appeal from so much of the order as denies a motion to set aside the judgment; and the plaintiff from so much thereof as changes the date of the entry of the judgment, etc.

      Robert H. Corbett, for the plaintiff.

      John Todd, for the defendants.
   Beady, J.:

The defendants demurred to the complaint and failed. Leave was granted tó answer in twenty days, on payment of the costs of the demurrer. They appealed from the order to the General Term. The order was affirmed, with costs. The order of affirmance was entered on the 19th January, 1872, and on the twenty-first February following, the judgment was entered against-the defendant. The plaintiff, neither before nor at the time of entering the judgment, filed an affidavit showing the service of the order of the Special or General Term, or of the failure of the defendant to answer during the twenty days, which had expired subsequently to the decision of the Special or General Term, and the entry of the order directed. The defendants moved to vacate the judgment, and for an order directing the clerk to cancel and remove it from the records of his office. The plaintiff moved to amend the postea, by inserting the election of the defendants not to answer their appeal, and the judgment of affirmance; and one order was made, embracing, it would seem, both motions. The order directed the judgment to be amended, by striking out from the same the entry of judgment therein, and by making a part of the said judgment an affidavit on behalf of the plaintiff, that no answer had been received by the plaintiff to the complaint in the action, and by inserting an entry of judgment by default for want of an answer; such judgment to be entered as of the day such entry of judgment should be so' amended. Both parties appeal; the defendants from the part of the order denying their motion to vacate the judgment, and allowing the plaintiff to amend, and the plaintiff appeals from that part of it, striking out the entry of judgment, and directing a new entry of the date of the amendment. The precise question presented by these appeals it may be impossible to state; but the right of the parties would seem to be easily definable. The defendants, when the demurrer was overruled, had twenty days after service of the order, within which to answer. They did not do so. It is contended by them that there is no proof of service of the order, but it is very clear that this is error. They appealed from the order. It is impossible that they could do so without notice of it. If this view should, however, be exceptionable, then the omission was one of irregularity, to which, under the circumstances, no court would attach any importance. The motion of the defendants, which appears to have been predicated of this omission and of the failure to file an affidavit of the omission of the defendants to answer, was, in form, according to the well established rules governing such application, imperfect. The irregularities complained of, should have been stated in the order to. show cause, but they were not. There was no pretense that an answer had been served, and the motion was predicated of the errors alleged, and not of the merits. The defendant had been heard upon all the questions presented by the demurrer, in Special and General Terms, and the decisions, if the answer were not served within the time allowed, became absolute. in character, and warranted a judgment, The court possessed the power, and, in the exercise of its discretion, might allow the necessary affidavit to be filed, to supply any omission necessary to perfect it. For these reasons, it cannot well be questioned, that the defendants’ motion to set aside the judgment was properly denied. The application of the plaintiff to amend, by inserting the allegation of proof of service of the order overruling the demurrer, and of the failure of the defendants to answer, was one addressed to the discretion of the court, and might be allowed as- the facts and circumstances warranted. When, therefore, at Special Term, the condition was annexed, making the entry of judgment as of the time of the amendment allowed, it was not in any manner assailable. It was quite competent in the court to declare that the judgment had not been properly entered by reason of the omission mentioned, and to declare, therefore, that it should be re-entered as of the day when the deficiencies were allowed to be supplied. It may be said also, upon the general ■ features of- the appeal, that the payment of costs having been imposed upon the defendants in allowing them to answer, it was their duty to seek the plaintiff’s attorney and tender the costs, or demand a taxation, offering to pay on their being taxed. And when a pleading is sustained, the demurrer being overruled, and leave is given to answer the pleading, the demurrant is put to his election to answer over or submit to judgment, and if he submits to judgment, it is final, and the appeal to the Court of Appeals is for an affirmance or reversal only. The judgment of the General Term, and-the failure of the defendant to answer, is a final determination, from which an appeal may be taken, It is conceded'by the defendants that the appeal taken by them did not operate as a stay, and that the plaintiff was entitled to judgment, provided he presented proper proofs as the foundation of that relief. It is quite apparent that he could do so, inasmuch as it appears, both by the appeal and the affidavit used on the motion made by him to amend, that the order made at Special Term was duly served. The result of these views is: First, that' the judgment entered was a final judgment, from which an appeal might be taken, and that the form in which it was placed at Special Term, did not in any way interfere with its absolute character. The defendant having elected not to answer, and having been heard, the whole proceeding amounted to and became a final judgment; and, second, that the plaintiff having omitted certain formalities, and having applied for leave to amend, the court was authorized to impose conditions, and was justified in ordering the form and date of the judgment rendered. For these reasons we think the order should be affirmed, but without costs to either party.

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

Order affirmed.

       Rule 46; see cases collated, 4 Wait’s Pr., 638, 639.

       Whiting v. The Mayor, 37 N. Y., 600.

       Calkins v. Packer, 31 Barb., 375; Catlin v. Billings, 16 N. Y., 633; Jones v. U. S. Slate Co., 16 How. Pr., 189.

       Sands v. McClelan, 6 Cowen, 582.

       Whiting v. The Mayor, 37 N. Y., 600, supra.

         Cases, supra; Adams v. Fox, 27 N. Y., 640.


text:
    GILBERT W. BARNES, Respondent, v. WILLIAM F. MORGAN, Appellant.

      Act of Congress, July 4,1836, § 11—Patent—rights of assignee—Interest in patent assigned by operation of law — supplementa/ry proceedings.

    An assignment of a patent vests in the assignee an interest in the patent, indefeasible by the act of the patentee, so that the patentee cannot, by act of surrender of his patent, affect the rights of an assignee of the whole or a part of the patent.
    The interest in a patent may be assigned by operation of law, in the case of the bankruptcy of the patentee.
    A patent right was not subject to seizure or sale at common law, but might be reached by a creditor’s bill.
    The same result may be attained by proceedings supplementary to execution.
    Appeal from an order, made at Special Term, directing the defendant to deliver to the receiver, appointed under supplementary proceedings, certain patents and models appertaining thereto.

      Luden Birdseye, for the appellant.

      W. H. Van Gott, for the respondent.
   Beady, J.:

The act of Congress, of July 4, 1836, section 11, provides that every patent shall be assignable, either as to the whole interest, or any individual part, by an instrument in writing, and "the thing to be assigned is not the mere parchment on which the grant is written, but the monopoly which the grant confers, the right of property which it creates. An assignment vests in the assignee an interest in the patent, indefeasible by the act of the patentee, so that the patentee cannot, by act of surrender of his patent, affect the rights of an assignee to whom he has previously granted the whole or part of the patent, without the consent of such assignee, The interest in a patent may also be assigned by operation of law, in case of bankruptcy of the patentee. Lord Alvanally, Ch. J., in Hesse v. Stevenson, in reference to a proposition that an invention was an idea, or, as he termed it, a. scheme in a man’s head which could not be reached by process of law, said : But, if an inventor avail himself of his knowledge and skill, and thereby acquire a beneficial interest which may be the subject of assignment, I cannot frame to myself an argument why that interest should not pass, in the same manner as any other property acquired by personal industry.” In Stephens v. Cady, Justice Nelson said, in relation to the incorporeal right secured by the statute to the author to multiply copies of a map by the use of a plate, that, though from its intangible' character it was not the subject of seizure or sale at common law, it could be reached by a creditor’s .bill, and be applied to the payment of the author’s debts, the same as stock was reached and applied; the court compelling a transfer and sale of the stock for the benefit of creditors. It is said by the learned counsel for the appellant here, that this was dictum only ; but the cases referred to sustain the proposition. The Court of Chancery had the power to assist a- judgment creditor to discover and apply equitable assets and property of the debtor, not liable to execution, where the remedy at law was exhausted and was insufficient for the purpose. The subject is discussed elaborately in Hadden v. Spader, cited by Justice Nelson; and the doctrine is reiterated in subsequent cases. If the courts should declare a patent right exempt from appropriation, it would, as suggested in Sawin et al. v. Guild, be practicable for a party to lock up his whole property, however great, from the grasp of his creditors, by investing it in profitable patented machines, and thus defeat the administration of justice. If the use of the monopoly which such a grant confers, is not sufficiently productive in the hands of the inventor to pay his debts, the privilege bestowed, being a right of property, as declared by Chief Justice Taney, should be transferred to the person designated by law, and sold for the benefit of the creditor. It would be a marvellous, if not unjust, perpetuation of the ideal, if an inventor, having obtained a patent, thus divulging his secret and at the same time acquiring a property in it for practical purposes, should be permitted to hold it unused against his creditors, until, either by compromise or the lapse of time, his obligations should be discharged; and this, too, although it might be one which, by assignment, or upon manufacture of the thing invented, would readily yield enough to pay all existing liabilities. If the right of property can. be reached by a creditor’s bill, it seems to be settled that the same result may be accomplished by proceedings supplementary under the Code, which furnish a substitute for that chancery proceeding, The personal property passes to the receiver without assignment; but, if an assignment be necessary, the power resides in the court to direct it to be made.

The order should be affirmed, with ten dollars costs and disbursements.

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

Order affirmed, with ten dollars costs and disbursements.

       Per Taney, Ch. J., in Gayler v. Wilder, 10 How., 477; see, also, R. R. Co. v. Trimble, 10 Wallace, 367.

       Curtis on Patents, § 192, and cases cited.

       Hesse v. Stevenson, 3 Bos. & Puller, 565; Curtis on Patents, §189; Hind-march on Patents, 238; Bloxam v. Elsee, 6 B. & C., 169.

       14 How. (U. S.), 531.

       20 Johns., 554.

       Storm v. Waddell, 2 Sandf. Ch., 494; Brown v. Nicholls, 42 N. Y., 26; Lynch v. Johnson, 48 id., 27.

       1 Gallison, 485.

         Lynch v. Johnson, supra.

         Code, § 298; Bostwick v. Menck, 40 N. Y., 383; Chautauqua Co. Bank v. Risley, 19 id., 369.


text:
    ALBERT SPEYERS, Appellant, v. LUCY D. FISK, as Executrix, etc., of JAMES FISK, Jr., Deceased, Respondent.

      Partners—liability of —joint and several debtors—right of creditor.

    AH contracts with partners are joint and several, and each partner is liable-to pay the whole amount of the claim thereunder, but each partner is not liable to a separate action.
    The plaintiff alleged that, at the request of James Fisk, Jr., and one Jay Gould, he rendered services for their benefit and on their account, for which they jointly and severally promised to pay him. The complaint contained no allegation that Fisk and Gould were partners. Held, that a demurrer to the complaint, on the ground that the debt was due from Fisk and Gould as partners, could not be sustained.
    Appeal from an order sustaining a demurrer to the complaint. The complaint alleges that the plaintiff was a gold broker, and “ he performed certain work, labor and services for James Fisk, Jr., now deceased, and one Jay Gould, at their request, and for their benefit, in and about the purchase of gold coin, for the said Fisk and Gould, and on their account,” for which services the said Fisk and Gould then and there jointly and severally promised and agreed to pay the plaintiff.
    The defendant demurred, upon the grounds, first, that there was a defect of parties defendant, and, second, that the complaint did not state facts sufficient to constitute a cause of action against the defendant.

      Albert SUekney and I. V. French, for the appellant.

      Jamies M. Ball, for the respondent.
   Beady, J.:

The proposition upon which the learned justice at Special Term sustained the demurrer in this case, is undoubtedly correct. All contracts with partners are joint and several, and every partner is liable to pay the whole debt, as said by Lord Mansfield; but their responsibilities are not joint and several, so as to subject each to a separate action. Each partner is bound for the whole, until the debt is paid.

The plaintiff alleges, that, at the request of James Fisk, Jr., and one Jay Gould, he rendered services for their benefit and on their account, for which they jointly and severally promised and agreed to pay him his brokerage. There is no allegation that they were partners. The charge is, that each agreed to pay for the service rendered to both, and each became liable for the whole debt, as soon as the service was performed. If it were otherwise, there would be no vitality in the separate promise, and the plaintiff’s remedy and the defendant’s liability, would be dependent upon the rules governing joint obligations. The plaintiff would then, James Fisk, Jr., having died, be obliged to exhaust his remedy against Jay Gould, unless he were insolvent, before he could resort to the representatives of the deceased joint debtor. Where the contract was joint and several, under the system which prevailed prior to the Code, the right of action existed against either or both. The plaintiff was at liberty to proceed against the parties jointly, or each separately though their interest was joint; but, if the action were brought against both, the plaintiff was, by a common-law principle, held to have elected to consider the demand joint, and must have failed if he did not establish the joint promise, This rule was abrogated by sections 136 and 274 of the Code, which provided that judgment might be taken against any of the several defendants, if the plaintiff would be entitled to judgment, had the action been against him alone,

The contractors, Fisk and Gould, being by the terms of the contract separately liable, the action could be brought against either, or the personal representatives of the one dead, and the order made at Special Term was therefore erroneous, and should be reversed.

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

Order reversed, and demurrer overruled, with costs; with leave to defendant to answer within twenty days, on payment of costs.

       Robertson v. Smith, 18 Johns., 459; Van Tine v. Grane, 1 Wend., 524.

       Chitty’s Pl., Vol. 1, p. 49.

       Parker v. Jackson, 16 Barb., 33, and cases cited.

         Parker v. Jackson, supra; McIntosh v. Ensign, 28 N. Y., 169; Brumskill v. James, 1 Kern., 294; Marquat v. Marquat, 2 id., 336; Harrington v. Higham, 15 Barb., 524.


author: Brady, J.:

text:
    EDWARD HEALY, Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellant.

      Liability of corporation for defective sidewalJc—contributory negligence—intoxication.

    Where, in an action brought to recover damages for injuries sustained in consequence of defects existing in a sidewalk, it appears that the plaintifE was intoxicated at the time of the accident, it is for the jury, and not for the court to say whether or not the intoxication contributed in any degree to the injury sustained.
    Cases on question of contributory negligence collated.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    In the evening of August 2, 1869, the plaintiff was walking on the sidewalk along West Forty-third street, Hew York city, and fell down, by reason of the flagstones being broken and misplaced, having been so moved, by the sinking of an adjoining lot, as to slope very much toward it. The action was brought to recover damages for the injuries thus sustained.

      D. J. Dean and E. Delafield Smith, for the appellant.
    A ver. diet which is clearly against the weight of evidence, will be set aside by an appellate court and a new trial granted. (Gatlin v. Wilcox, 26 Ark., 309; Blosser v. Harshbarger, 21 Grat. [Va.], 214; Macey v. Wheeler, 18 Abb., 73; S. C., 30 N. Y., 231; Hutchinson v. Coleman, Halst., 74; 3 Graham & Waterman on New Trials, 1207; Hinton v. McNeil, 5 Ohio, 509; Boyd v. Colt, 20 How. Pr., 384.) The plaintiff must be free from any negligence contributing to cause the accident. (Tonawanda R. R. Co. v. Munger, 5 Denio, 255; Daycombe v. Buffalo R. R., 27 N. Y., 221; Clark v. Eighth Ave. R. R., 36 id., 135; Smith v. First National Bank, 99 Mass., 605; 109 id., 510.)

      George Bell and E. Y. Bell, for the respondent,
    cited as to the liability of municipal corporations in general, and city corporations in particular: Hudson v. Mayor of N. Y. (9 N. Y., 163); Storrs v. City of Utica (17 id., 108); The People v. Kerr (27 id., 188); Rochester White Lead Co. v. The City of Bochester (3 Comst., 464); Wallace v. Mayor of N. Y. (9 Abb., 40); Requa v. The City of Rochester (45 N. Y., 129). Notice may be inferred in cases like the present from the lapse of time. (Wallace v. Mayor, etc., of N. Y., 9 Abb., 40; Davenport v. Ruckman, 16 id., 341; S. C., 37 N. Y., 568; Requa v. The City of Rochester, 45 id., 129; Hume v. The Mayor, etc., of New York, 47 id., 639; McCarty v. The City of Rochester, 46 id., 194.) Intoxication is not per se, or, as matter of law, contributory negligence. (Filer v. N. Y. Cent. R. R. Co., 49 N. Y., 47; Viner v. N. Y. & Wash. Steamship Co., 50 N. Y., 23; Alger v. Lowell, 3 Allen [Mass.], 402; Robinson v. Pioche, 5 Cal., 460.)
   Brady, J.:

The plaintiff recovered a judgment against the defendants, for injuries received while walking down Forty-third street toward the Eleventh avenue. The sidewalk, at the point where he fell, had fallen away into the sunken lot below it, and the flagstones, which were about four feet in width, had become displaced and broken. This had been the condition of the walk for a long time. There was no guard to protect the passer by, and the negligent state of the walk was a question about which there could be no doubt. The plaintiff was, it is claimed, intoxicated, and there is reason to suppose that he was at the time of the accident, although the evidence is conflicting on that subject—not sufficiently so, however, as to create any serious doubt of the .fact. It may be assumed, indeed, upon the evidence, that he was under the influence of liquor to such an extent as to render him incapable of using, in his locomotion, the same power which he could have employed when sober. This was the defense on the part of the city, and the only one. That it had not done its duty to the citizen could not be gainsayed. Its neglect was evident. Whoever was intrusted with the duty of protecting the wayfarer in that part of the city, had signally failed to perform it. The condition of the walk was not only dangerous, but disgraceful. It is quite apparent that at all such places, guards should be erected, to provide against the occurrence of accidents, which not only endanger life but subject the city to great expense. The actions frequently brought against it, to recover damages for injuries sustained by persons who were not intoxicated, seem to teach no lesson, and equally to fail to induce greater vigilance, or a more faithful adherence to duty, or a greater appreciation of life or limb. The people of this city are subjected to great danger by incumbered streets, and by neglected excavations, from which it is to be hoped they will soon be relieved by a better administration of its affairs. It may indeed be said, that these accidents result in the loss to the city of a very large sum in the aggregate, in each year. The defense as suggested was, however, the intoxication of the plaintiff, but that did not deprive him, per se, of protection. By. putting himself in that unfortunate condition, he was not abandoned by the law. He was only subjected to its consequences, whatever they might be, and if his drunkenness in any way contributed to his injury, he must bear the burden. Whether it did or not, was a question of fact for the jury to determine. It was for them, and not for the court, to say whether he was intoxicated at the time of the accident, and whether, if he was, it contributed in any degree to the injury which he received. The defendants had the full benefit of this ruling, and the jury found against them. The case of Alger v. Lowell is in many respects similar to this. The .plaintiff in that case was injured by falling down a declivity outside the limits of the street, which was not protected by a railing. Evidence was given, tending to show that the plaintiff was intoxicated at the time of the accident, and the judge was requested to charge that, if he was in that condition, they were to presume that he was negligent. He refused to grant the request, and his refusal was sustained. The court, per Hoab, J., said: Intoxicated persons are not removed from all protection of the law.” The intoxication was an important circumstance to be considered by the jury upon the question whether due care was used, and the jury were directed so to regard it. In the case of Robinson v. Pioche, etc., which was an action to recover for injuries received by falling through an uncovered hole in the street, the court held, that if the defendants were at fault in leaving an uncovered hole in the sidewalk, the intoxication of the plaintiff could not excuse such gross negligence, and Hydeneeldt, J., said : “A drunken man is as much entitled to a safe .street as a sober one, and much more in need of it.” The rule in relation to contributory negligence, though severe, is not so "absolute as the counsel for the defendants would seem to think it. Its application must depend upon facts and circumstances, the value of which upon the subject, must be ascertained and determined by the jury, when one is impanneled tó try the issue involving it. It has been held in an action to recover damages for causing the death of a child three years old, that it was not,per se, such negligence as would prevent a recovery, to have permitted the child to cross a railroad track, unattended save by a child nine and a half years old, or to permit a boy twelve years of age, unattended, to go from one car to another in pursuit of a seat, or to. return to the car in which his mother was seated; or that a woman partially blind should go unattended into the streets; or for a driver to undertake to cross a bridge on a dark night, allowing his horses to choose their way. It is not proposed here, therefore, to usurp the functions of the jury, and to say that the plaintiff contributed to the injuries he received. This is not apparent. The condition of the walk was such, that a person, not intoxicated, might have fallen as the plaintiff did, by proceeding on his way under the impression which he would have the right to entertain, that it was safe for him to do so, thus assuming that the highway was kept in repair, and that the defendants had done their duty. It may be said, therefore, that it does not appear in the evidence given, that the plaintiff, by his inebriety, contributed to the injuries which he received, while, on the other hand, it is certain, that if the defendants had done their duty in reference to the walk, the accident would not have happened. It would be impossible. The duty 'of the defendants to keep the streets in such repair that they may be safely traveled night and day, has been so frequently adjudicated as to make it entirely unnecessary to cite authorities to show it. The judgment, for these reasons, should be affirmed.

There is nothing contained in the request to charge, or exceptions taken, which would warrant us in disturbing it.

Daniels, J., concurred.

Judgment affirmed.

      3 Allen (Mass.), 402.

       5 Cal., 460.

       Ihl v. The Forty-second Street and G. Street F. R. Co., 47 N. Y., 317.

       Downs v. N. Y. Central R. R. Co., 47 N. Y., 83.

       Davenport v. Ruckman, 37 N. Y., 568.

       Rector v. Pierce, 3 N. Y. Sup. Ct., 416.


text:
    STEPHEN D. STEPHENS, Respondent, v. THE BOARD OP EDUCATION OF THE CITY OF BROOKLYN, Appellant.

      Money illegally obtained—when recoverable from third person.

    G-. obtained from the plaintiff, upon a forged bond and mortgage which he knew to be such, a sum of money, and paid it to the defendant on a precedent debt, which it did not appear had been discharged, nor that any security therefor had been parted with by reason of such payment. Held, that the defendants were liable for such amount to the plaintiff, after notice and demand.
    Appeal from an order made at Special Term overruling a demurrer.

      Wi/nchesier Britton, for the appellant.
    It was the end of the identity of the fund, when Grill deposited plaintiff’s check in the bank, and it was passed to the credit of his account. (Matter of Franklin Bank, 1 Paige, 249; Commercial Bank v. Hughes, 17 Wend., 94; Graves v. Dudley, 20 N. Y.,76; Marsh v. Oneida Bank, 34 Barb., 298; Ætna Nat. Bk. v. Fourth Nat. Bk., 44 N. Y., 82.) The payment not having been made .to defendant by Grill, in the identical money procured from plaintiff, but from his general deposit account in the bank, this action cannot be maintained. There is no privity between plaintiff and defendant, which, is absolutely essential to the maintenance of this action, unless there has been malafides on the part of defendant, which is not this case. (4 B. & Ad., 611, 612; Williams v. Everett, 14 East, 582; Stephens v. Babcock, 3 B. & Ad., 354; Pierce v. Craft, 12 John., 90; Rapalje v. Emory, 2 Dal., 51, 54.) There is no demand and refusal alleged, which is necessary. (Walrath v. Thomson, 6 Hill, 540; Phelps v. Bostwick, 32 Barb., 314; S. C., 24 id., 300; Mayor v. Erben, 3 Abb. Ct. of App. Dec., 255; Sears v. Patrick, 23 Wend., 538.)

      Alonzo G. Farnliam, for the respondent.
    The case of Caussidiere v. Beers (2 Keyes, 198), is a case in point, and the Court of Appeals there affirmed the right of recovery in such an action. The appellant is in error in claiming that in order to entitle the plaintiff to recover, it is not enough to trace the fund, but that he must trace the money in bills. A court of equity will always restore parties to the same position they were in before the commission of a fraud or felony, if it can do so without injury to an innocent third party. No title can be made through an act of fraud amounting to a felony. (Brower v. Peabody, 3 Kern., 121.) Where one has found money belonging to another, the law implies a promise to repay it. (McDougal v. Walling, 48 Barb., 364.) In Calland v. Loyd (6 Mees. & Weis. [Eng. Exch.], 26), the principles held by the court in this case were clearly established as the rule in England. (55 N. Y., 213.)
   Brady, J.:

This action was brought to recover a sum of money received under the following circumstances : William L. Grill, being a member of the board of education of the city of Brooklyn, ■ and while acting as its agent, received and embezzled certain of its moneys.. In December, 1871, Grill, upon a forged bond and mortgage, which he knew to be such, obtained from the plaintiff a sum of money, namely, $4,129.34, and deposited the same in the City National Bank to his credit, immediately, and upon the 21st of December, 1871. He had, at the time of the deposit, to his credit, the sum of seventeen dollars, or thereabout. Upon depositing the amount, as stated, he drew his check in favor of the defendants for the sum of $3,600, which was deposited to their credit by their secretary, and, on the twenty-third of December, paid to the bank in.which it had been deposited by them. These facts are all abundantly set out in the complaint, to which the defendants demur. The demurrer was overruled at Special Term, and chiefly upon the authority of the case of Caussidiere v. Beers. The facts in that case were these: The plaintiff intrusted moneys of his to a clerk, and the latter, having gone to the gambling house of the defendant, lost them at play. The action was sustained, and the plaintiff had judgment. In 'that case, it was apparent that the defendant obtained the money by a process condemned as unlawful and unjust, and had no conscientious or equitable claim to retain it. In this case the defendants received it in an apparently proper mode, and in the payment of a just claim; having no share in, or notice of the illegal manner in which it was obtained from the plaintiff. The cases cannot rest precisely, therefore, on the same foundation. The question is not, however, whether the defendants received it in an unlawful manner, but whether, having received it in form in a legal manner, it can be withheld against the plaintiff from whom it has been stolen; and this question, though it may not be determined by adjudications precisely "similar, can be disposed, of on principles decided in analogous cases. The defendants’ debtor, Gill, never had any right, title or interest in the money. It belonged to the plaintiff as long .as Gill held it. He passed it away to the defendants in payment of a precedent debt, there being no evidence that the debt was discharged, or any security parted from by them. It was not received, therefore, for a valuable consideration, .within the law merchant as applied to negotiable promissory notes, so as to 'shut out existing equities. A holder can claim protection from the defense of a party whose negotiable paper has been obtained by fraud, only in case he has parted with value, or suffered some injury from it. It was, as said in Rapalje v. Emory, a receipt of money unjustly given to them, or at least, without a valuable consideration. If the delivery of an equal amount in value of personal property, obtained in the same felonious way, had been made to the defendants, there is no doubt that it could -be recovered by the owner, in an action to be brought for that purpose. The defendants having given nothing for it, and their debtor, Gill, having no title to it, the defendants should not be permitted to retain it. The case of Caussidiere v. Beers sustains this principle. The business of the defendant in that cause was illegal, it is true, and he acquired no title to any money obtained through its agencies; but the defendants, in legal effect, as to title, stand upon precisely the same basis. They took the money innocently, but without consideration, and, as against‘the plaintiff, acquired no right to retain it. They are in no better position than if it had been in the form of a note. In the case of CoZland v. Loyd and others, the plaintiff gave a sum of money to his wife to keep for him; without his knowledge, she took part of the money, a fifty pound Bank of England note, and deposited it in the defendant’s hands, in the name of her infant son by a former marriage, taking a receipt in his name, bearing interest. The plaintiff, when he discovered the fact, demanded the money, which the defendant refused to pay, and he commenced an action. He recovered, and the judgment was sustained. “ These authorities,” said Brown, J., in Caussidiere v. Beers, in concluding his opinion, seem to meto be decisive of the rule, that where one receives the money of another, and has not the right conscientiously to retain it, a privity between the true owner and the receiver will be implied as well as a promise to pay it.” This is such a case. The defendants have not the right, conscientiously, to retain the plaintiff’s money, and they ought to pay it.. It does not appear, however, that any demand was made of the money, by the plaintiff, before this action was brought. No demand is alleged in the complaint. The question arising upon that subject is not alluded to by the learned justice in his opinion delivered at Special Term, and is not discussed by the plaintiff in his points." I do not understand that the defendants owed any duty to the plaintiff, uptil notice of his claim and a demand. The contract, as said in Sears v. Patrick, was not negotiable; and there is not, and cannot be, any privity of contract between the assignee and the debtor, until the latter has notice of the assignment. The defendant must know that the plaintiff is entitled to the money, as also said in that case, before the law will imply a promise to pay him. 1 think the cases analogous on the necessity of a demand. -The defendants were entitled to know of the plaintiff’s claim and title, before any obligation to him was created. In the cases of Calland v. Loyd and Caussidiere v. Beers, the demand was, it would seem, regarded as necessary to the right of action for it was made in each of those cases, as appears by the reports. The order made at Special Term must, for this reason, be reversed, and judgment given for the defendants on the demurrer, with liberty to the plaintiff.to amend in twenty days, on . payment of the costs of the demurrer and( of this appeal.

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

Ordered accordingly.

       2 Keyes, 198.

       Lawrence v. Clark, 36 N. Y., 188.

       Cardwell v. Hicks, 37 Barb., 458.

       2 Dall., 51-54.

       Saltus v. Everett, 20 Wend., 267; Brower v. Peabody, 3 Kern., 121.

      6 Mees & Wels., 26, cited in Caussidiere v. Beers.

       23 Wend., 528.


text:
    FREDERICK EVERS, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Bight of self defense—duly of party assailed to resort to public authorities for protection— Opinion of witness as to motives of assailant.

      The plaintiff in error was tried and convicted of an assault, with intent to do bodily harm with a pistol. The defense was that the act was committed in self defense, the complainant being the assailing party.
    Upon his examination; the prisoner described a movement made by the complainant during the collision, from which he thought the latter intended to draw a pistol The recorder asked him, if he could tell why the complainant, who had the best of the fight, should put his hand in his pocket, or what occasion he had to draw a pistol. Held,, that the question was improper, as calling for the opinion of the witness, and not a statement of fact.
    To authorize a person to use a weapon in self defense, it is sufficient to show a reasonable ground for apprehending a design to take his life, or to do him some great bodily harm, and that the danger was imminent that such design would be accomplished, although it might afterward turn out that such appearances were false, and there was not, in fact, any such design, or any danger that it would be accomplished.
    ■ A party assailed may seek the protection of the authorities, but his failure so to do, does not deprive him of the right to defend himself in the same manner, to the same extent, and by the same means as if he had done so.
    Writ of error to the Court of General Sessions, of the city and county of Hew York, to review the conviction of the plaintiff in . error, of an assault with intent to do bodily harm with a pistol.

      Wm. F. Howe, for the plaintiff in error.

      B. K. Phelps, for the defendants in error.
   Brady, J.:

The defendant was arraigned for an assault with intent to kill, or to do bodily harm. The defense was justification. The evidence on the part of the prisoner, tended to show repeated acts of violence against him by the complainant, and threats against his life, which the prisoner asserted he believed he would carry out. On the occasion when the assault was made for which the prisoner was tried, the complainant began the disturbance by assailing the former, as the prisoner stated, and he was sustained in material facts of his evidence thereupon by other witnesses. The question for the jury was, whether the prisoner was justified in believing himself to be in peril, and, under the -rules of law, authorized to resort to the weapon used to protect himself. These rules were properly stated to the jury, and although it is appparent that the learned recorder entertained very decided views of the case presented, he cautioned the jury against their influence upon them, instructing them that it was their duty to decide the questions involved, and to decide them upon their own appreciation of the evidence. Upon this element of the charge, therefore, if there had been a valid exception, it would necessarily be held that there was no error committed. The expression of judicial opinion in these cases, has not been regarded as an erroneous exercise of judicial power. Whether the prisoner was justified in doing what he did, depended upon -the credibility given to either of the class of witnesses called respectively for the people and the prisoner. They were in conflict upon the origin of the fracas, and the details marking its progress and consummation, and, therefore, the verdict rendered must be conclusive, unless some error arising or presented upon exception was committed during the trial. The prisoner, upon his examination, described a motion of the complainant’s hand by him during the collision between them, from which he thought the latter designed to take a pistol from his pocket, and in reference to that circumstance, the learned recorder asked this question: “ Evers, can you explain to me this thing: while Curran that was able to whip you, kept picking at you for amusement, why should he have put his hand in his pocket after giving you three terrific licks in the face ? what was the occasion of drawing a pistol ? To which the prisoner’s counsel duly excepted. The prisoner answered: “Tour honor, I am no fighting man; he isa very desperate man; I do not fight; ” and it was followed by the further question : “ I don’t see why a man whipping you every day, that you should suspect that he would draw a pistol,” which was answered, and without exception, as follows: He was threatening my life all the time he seen me; he has thrown a man overboard; he was threatening me all the time, calling me never by my right name; I have a license to keep a sailors’ boarding house; he has not; it is not lawful for him to do it.” The question excepted to was objectionable. It called upon the prisoner to furnish the reason, or state a motive for an act which he regarded as indicative of a design to kill him, ordo him some bodily harm, and which was in fact the pivotal part of the defense. He was not bound to explain the complainant’s conduct, or to express any opinion upon his motive, object or intent, or to give any reason for any or either of them. He was under no obligation to answer, therefore, the question propounded, and should not have been subjected to it. That course of inquiry might be indulged on the examination of the complainant, and it was a proper consideration of the jury in determining upon the evidence whether the prisoner was warranted in believing himself in' peril. The prisoner was to be held bound to answer as to the facts and circumstances, and not to give philosophical deductions. In establishing his defense, it was sufficient for him to show a reasonable ground for apprehending a design to take his life, or to do him some great bodily harm, and also a reasonable ground to believe the danger imminent that such design would be accomplished, although it might afterward turn out that such appearances were false, and there was in fact no such design, or any danger that it would be accomplished. The accused must, in such cases, decide at his peril upon the force of the circumstances in which he is placed, for that is a matter subject to examination. The question, indeed, called upon the witness to explain two things, namely: why should the complainant, under the circumstances, put his hand in his pocket; what was the oecassion of his drawing a pistol. His response, as an answer to the question, was a failure. He explained neither. He reiterated some of the elements of the defense, but gave no explanation. His failure in that respect may have prejudiced his case. It is impossible for us to say that it did not. The object of the question, or its purport, it is not difficult to understand. The learned recorder, when it was asked, seems to have been impressed with the conviction that the complainant, being the superior power—the conqueror so to speak — it was absurd in him to resort to a weapon; but that was for the jury to determine, not upon the reasons or opinions of the defendant, but upon the facts and circumstances disclosed. It is not improper to suggest that the history of violence, as revealed by cases of this character, well demonstrates that the victor does not always rest upon his triumph, but completes it by unnecessarily killing his victim. His passions sometimes govern, and not his reason, and he is not, therefore, always rational in his conclusions upon the events in which he has taken part. It did not follow, as a necessary consequence, that the complainant having struck the prisoner three terrific blows in the face,” and being apparently master of the situation, he would not make any other hostile demonstration, or give any other evidence of an intention to continue the violence. At all events, we cannot say that the question did not do the prisoner any injury; that it is clear beyond rational doubt that no harm was done to the party objecting; and, upon well settled principles of evidence, that is sufficient to demand a reversal of the judgment. We cannot say that the question and the answer given, would not have a tendency to either excite the passions, arouse the prejudices, awaken the sympathies, or warp or influence the judgments of the jurors in any degree, and thus overcome the decisions on the subject.

It may be further said, that when a person is subjected to maltreatment by another, he may seek protection from the authorities, and even that it is his duty to do so, as a conservator of the peace, but the omission to do it does not in any way deprive him of the protection of the law, and when assailed, he may defend himself in the same manner, and to the same extent, and by the same means, as if he had sought the protecting arm of the law. The question is not, in such cases, whether the prisoner has sought that remedy, but whether he was in imminent peril, or was justified in believing himself to be, when he did the act complained of. The charge of the learned .recorder, that if the prisoner believed that his life person was in jeopardy and peril, by the alleged repeated assaults made by the complainant, it was his duty to have invoked the aid of the authorities to aid in saving him from the infliction of any wrong, or punishing the offender for a wrong committed; all that the prisoner had to do, was, to make.a complaint before the magistrate, and the complainant would have been forced to have given bonds to keep the peace, to deter him from the commission of any violence,” and to which exception was taken, was therefore foreign to the issue, and erroneous. It was calculated either to lead the jury to the conclusion that the duty suggested was so coupled with the other elements of justification, as to make that defense incomplete without its performance, or to the conclusion that the prisoner had, by omitting to do as suggested, failed to do his duty, and was censurable. In either point of view, it was objectionable. It had, and it is said with great respect, no pertinent application to the facts developed, and had no legitimate bearing, therefore, upon the issue to be determined.

We think the judgment should be reversed, and a new trial ordered.

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

Judgment reversed, and new trial ordered.

       Shorter v. People, 2 N. Y., 193.

       The People v. Gonzalez, 35 N. Y., 59; Vandervoort v. Gould, 36 id., 644; Anderson v. Rome, etc., R. R. Co., 54 id., 334.

       Cases, supra.


text:
    SAMUEL L. M. BARLOW and others, Respondents, v. MARIA J. MYERS, Appellant.

      Contract with one for benefit of others—who may sue wpon—Bona fide holder of note — set-off against.'
    A party receiving all the assets of a partnership, and in consideration thereof agreeing to pay certain of its debts, may be sued upon such agreement by the creditors of the firm whose debts he has thus agreed to pay.
    In such case the bona fide holder, for value, without notice,, of a note against the firm, transferred to him before maturity, is not affected by a counter-claim existing in favor of the person malting such agreement, and against the person, transferring such note.
    Especially is this the case where the equitable obligation to apply the joint property in satisfaction of the joint debts, is created by law.

      Appeal from a judgment entered on the report of a referee.
    The action was brought upon three promissory notes made by the firm of Randall & Williams, payable to the order of one Nathan Randall, and by him indorsed to the plaintiffs before maturity. The plaintiffs claimed to recover under a contract, by the provisions of which the said Randall & Williams, being largely indebted to the' estate of Austin Myers, of which defendant was sole executrix, sold to said defendant, as such executrix, the firm assets in payment of such indebtedness: and the said defend ant, as such executrix, agreed to “ pay all the company debts of said firm of Randall & Williams, now outstanding, not exceeding the sum of $22,000.” At the time of the execution of the said agreement, the notes in question were the property of Nathan Randall, against whom defendant held a note for $5,000, payable to the -order of Austin Myers, and by him indorsed. Defendant offered this note as a set-off against plaintiffs’ claim, but the same was excluded by the referee, who gave judgment for the amount of the notes held by plaintiffs.

      D. Pratt, for the appellant.
    The limitation, as to the amount of debts to be paid by defendant, shows that the stipulations were intended to be between them alone. (Merrill v. Green, 55 N. Y., 270.) It is submitted that as the adjudications now stand, the only exception is where the third party is privy to the consideration. (Add. on Con., 940; Garnsey v. Rogers, 47 N. Y., 233; The Ætna National Bank v. The Fourth National Bank, 46 id., 82; Kelly v. Roberts, 40 id., 432.) If it be assumed -that the contract was designed to be made substantially with the creditors of Randall & Williams, it is submitted that it was made only with those whp were creditors at the time of making the contract. A contract of this kind is clearly not negotiable, in the legal sense of that term. A subsequent holder could only maintain an action upon it as assignee, and not as a contract made by him with her. (Miller v. Gaseon, 2 Hill, 188; Brown v. Curtis, 2 Com., 225.) The note held by defendant against said Randall wás a proper subject for set-off, and should have been allowed as such. 1. It comes directly within the provisions of the statute of set-off. (2 R. S., 354; Code, § 111.) 2. It belonged to the defendant when the assumed assignment was made, and was then due. 3. It would have been a good set-off against Nathan Randall had the action been brought in his name. 4. Although the action may now be maintained in the name of the assignee, the right to set off is not changed or impaired. (Code, § 111.) 5. It is not material that the notes were' negotiable and transferred before due. The action is on the contract, and not on the note.

      W. D. Shipman and Joseph Larocque, for the respondents.
    An action lies upon a promise made for a valid consideration to a third person for the plaintiff’s benefit, although the plaintiff was privy to the consideration. (Schermerhorn v. Nauderheyden, 1 Johns., 140; Cleveland v. Farley, 9 Cow., 639; Barker v. Bucklin, 2 Denio, 45; The Del. & Hudson Canal Co. v. Westchester Bank, 4 id., 97; Lawrence v. Fox, 20 N. Y., 268; Burr v. Beers, 24 id., 178; Ricard v. Sanderson, 41 id., 179; Freeman v. Auld, 44 id., 55; Hutchings v. Minor, 46 id., 456, at page 460.) The contract on which this suit is based, though made by the defendant nominally as executrix, was not such a contract as she could lawfully make in that capacity. It was executory in its character, made upon a new consideration moving to the defendant, and, in the eye of the law, is the personal contract of the defendant. It does not bind the estate of her testator. (Austin v. Munro, 47 N. Y., 363; Ferrin v. Myrick, 41 id., 315; Reynolds v. Reynolds, 3 Wend., 244; Demott v. Field, 7 Cow., 58; Myer v. Cole, 12 Johns., 349.) The plaintiffs, being purchasers of the notes in question before maturity and for value, have therefore the right to regard the contract as made for their benefit, with Randall & Williams, and to enforce it under the authorities already cited.
   Brady, J.:

' The defendant, upon a sale of the partnership effects of the firm of Randall & Williams agreed to discharge certain debts, including notes then held by Nathan Randall for moneys loaned, and which were subsequently, and before maturity, and for value, transferred to the plaintiffs. The defendant, at the time of the sale and agreement mentioned, held a note of Nathan Randall for $5,000, which was past due, and which she set up as a counter-claim, and offered to prove. On the trial before the referee it was disallowed, and judgment given for the plaintiffs on the notes.

Two questions are presented on this appeal: First, did the agreement inure to the benefit of the plaintiffs ? Second, was the set-off improperly excluded ? The defendant received all the assets of the partnership, and, in consideration thereof, undertook to pay its debts to a certain limit. The plaintiffs’ debt was included in the obligations assumed. The partnership property is primarily liable for the joint debts. It is the fund created and provided for them, although the creditors may not have any specific lien upon it. The receipt of it, therefore, constitutes a good consideration for a promise to pay the debts with which it is burdened. An action lies on a promise made by the defendant, on a valuable consideration, to a third party for the benefit of another, even where he is not privy to the consideration, and it is not essential that the promise should be made directly to the person to whom the money is to be paid. It is. made for his benefit, There is no difference in principle between the cases cited and this, except that (and it makes the plaintiffs’ case stronger) there is privity between the defendant and the consideration, inasmuch as the property which formed the consideration was, as we have seen, primarily liable for the plaintiffs’ debt. The set-off was properly rejected, because the plaintiffs were the holders of a negotiable note; and having taken it before • maturity, and for value, it was not subject to existing equities, in the absence of notice, actual or constructive. The promise to pay the note held by the plaintiffs, was to pay it as it existed at the time it matured. It could not be affected by any arrangement between the defendant and the makers. The defendant assumed their obligation, which was to pay the note to a bona fide holder for value without notice, notwithstanding they might, were it in the hands of the payee, have a subsisting set-off or equity against it. This must be the rule in a ease like this; more particularly where the equitable obligation to apply the joint property to joint debts is created by the law of the land. There is, however, another objection to the set-off, and that is, that it does not exist, apparently, in favor of the defendant in her own right. It is not alleged that the note was transferred to the defendant; and the presumption is that it was part of the effects which she acquired as executrix of Austin Myers, deceased. There is nothing in the cases of Kelly v. Roberts, Ætna Nat. Bank v. The Fourth Nat. Bank, and Garnsey v. Royers, in conflict with the rule established in Lawrence v. Fox, and applied- here.

The binding force of a promise duly made, upon a valid consideration, to one person for the benefit qf another, is recognized particularly in Kelly v. Roberts, The consideration here was the transfer to the defendant of the partnership property, already charged with its debts, upon the promise that the debts would be paid. The judgment should be affirmed.

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

Judgment affirmed.

       Wilder v. Keeler, 3 Paige, 167; Kirby v. Carpenter, 7 Barb., 873; Canson v. Lathrop, 25 id., 455; Sage v. Chollar, 21 id., 596.

       Lawrence v. Fox, 20 N. Y., 268.

       Delaware and Hudson Canal Co. v. West’r Co. Bank, 4 Denio, 97.

      Merrit v. Seaman, 2 Seld., 168; Dale v. Cooke, 4 Johns. Ch., 13; Duncan v. Lyon, 3 id., 359; Root v. Taylor, 20 Johns., 137.

       40 N. Y., 432.

         46 N. Y., 82.

       47 N. Y., 233.

        Supra.