author: Pryor, J.

text:
    James McVity, Resp’t, v. Daniel N. Stanton, Impleaded, etc., App’lt.

      (New York Common Pleas, General Term,

      Filed November 5, 1894.)

    1. Judgment—Relief.
    A plaintiff may, after answer, take any judgment consistent with the case made by the complaint and embraced within the issue.
    3. Damages—Conversion.
    A judgment for the value of the property with interest is proper against a defendant, who receives and wrongfully retains it constructively in trust for the plaintiff.
    3. Evidence—Documentary—Judgment.
    The contents and effect of an extant judicial record may not be proved by oral evidence.

      4. Same.
    A judicial record is evidence only between parties and privies.
    5. Trustee—Ex maleficio.
    Facts constituting one a trustee ex maleficio.

    Appeal from a judgment by a referee, in an action for the value of bonds wrongfully withheld by-defendant.
    For value defendant assigned to plaintiff certain receiver’s certificates ; certain bonds' were provided for the redemption of these t certificates; of these bonds defendant with notice of plaintiff’s 'right, got possession without the knowledge or consent of plaintiff, and on receiving them gave a release from all liability for the bonds either to himself or his assignee.

      Dill, Chandler & Seymour, (James B. Dill, of counsel), for app’lt; Abbott Brothers, for resp’t.
   Pryor, J.

Only in case of the defendant’s default is the plaintiff limited to the specific relief which he solicits; and where an answer is interposed the court may award any judgment consistent with the complaint-and embraced within .the issue. Code of Civ. Pro., § 1207; Bell v Merrifield, 109 N. Y. 202; 14 St. Rep. 796. Under our system of procedure a suitor is not to be dismissed without redress, because “ he has prayed for too much or too little, or for wrong relief.” Murtha v. Curley, 90 N. Y. 372, 377.

The appellant insists that the judgment under review is invalid, because not secundum, allegata] but the contention is obviously untenable. The complaint alleges, in terms, that the bonds in controversy'were “impressed with a trust in favor of the plaintiff,” and that the defendant took and detains them in had faith and with knowledge of the plaintiff’s rights. By itself the averment might be nugatory as the statement merely of a conclusion, but it is accompanied and fortified by a detail of facts which, if true, suffice in law to support it.

Beyond all question the bonds were intended for the redemption of the certificates. The defendant, with knowledge of plaintiff’s right to an amount in bonds equivalent to the amount of his certificates, wrongfully received and misappropriated the bonds; and gave a release from liability for the bonds, either to himself or his assignees. The defendant had sold the certificates to the plaintiff, and as the bonds were the product and substitute of the certificates, the defendant had, in effect, sold the bonds to the ‘plaintiff; and so, in his hands, as vendor, the title to them was impressed with a trust in favor of the plaintiff as purchaser. Without the bonds, it is conceded, that the certificates are worthless, by what right then, may the defendant, by retaining the bonds, deprive the plaintiff of the only value attaching to his certificates? Is is consistent with equity and good conscience that the defendant should have both the price and the product of the certificates; that the plaintiff should lose as well that product as that price? If there be any virtue in the salutary principles of equity, the defendant holds the bonds in trust for the benefit of the plaintiff.

“ Constructive trusts include all those instances in which a trust is raised by the doctrines of equity for the purpose of working out jtistice in the most efficient manner, where there is no intention of the parties to create such a relation, and in most cases contrary to the intention of the one holding the legal title, * * * Certain species of the constructive trusts arises from actual fraud ; many others spring from the violation of some positive fiduciary obligation; in all the remaining instances there is, latent perhaps but none the less real, the necessary element of that unconscientious conduct which equity calls constructive fraud. Courts of equity, by ’thus extending the fundamental principle of trusts, to all cases .of actual or constructive fraud and breaches of good faith, are enabled to wield a remedial power of tremendous efficacy in protecting rights of property; they can follow the real owner’s specific property, and preserve his real ownership, although he has lost or even never had the legal title, and can thus give remedies far more comjflete than the compensatory damages obtainable in courts of law. * * * The specific instances in which equity impresses a constructive trust are numberless, as numberless as the modes by which property may be obtained through bad faith and unconscientious acts.” . 2 Pom. Eq. Juris., §§ 1032, 1044-1045.

Even though, no technical fiduciary relation may subsist between the plaintiff and the defendant, yet here are present in eminent manifestation, the two circumstances which urge into action the remedial power of equity ; namely,' a beneficial interest in the one party and unconscientious conduct in the other. To withhold the relief solicited by the plaintiff, would be to decline the application of the remedial processes of equity, in a case plainly and imperatively demanding the exertion of their energies for the prevention of wrong and the protection of right.

Nay, construing the complaint in the sense urged by the appellant, namely, as an'action for conversion, still the plaintiff, upon proper proof, would be entitled to the relief accorded; that is, the value of the bonds, with interest. Smith v. Frost, 70 N. Y. 65.

Assuming the sufficiency of the complaint to authorize the judgment, the appellant contends that the proof is inadequate to sustain the 'complaint. Whether the position be well taken we are dispensed from inquiring, because the proof, whatever its force, is such, in essential particulars as the law refuses to recognize as competent evidence.

Against objection on the ground of incompetency, oral evidence by a layman of the contents of judicial records and of the effect of adjudications was admitted; and contrary to a like objection, a paper purporting to be a decretal order of a Federal court was received without other proof or authentication than the statement of the witness. This was palpable error. 1 Greenl. on Ev., § 501; Code Civ. Proc., .§§ 952-953; U. S. Rev. Stat. 905; Trebilcox v. McAlpine, 46 Hun, 469; 11 St. Rep. 847; Mandeville v. Regnolds, 68 N. Y. 528, 573.

Against appropriate objection judgment another action between the defendant and another plaintiff, were received in evidence; and so the defendant was prejudiced by proof that upon a similar claim he was held liable to another party in no sense his privy. This too is repugnant to fundamental principle. 1 Greenl. on Ev., § 522-523.

The appellant imputes other errors in the admission of evidence; but as it is already apparent that the judgment must be reversed, we need examine the record no further.

Judgment reversed, and new trial awarded, costs to abide the event. Order of reference vacated.

All concur.


source: Caselaw Access Project

author: Bischoff, J.

license: Public Domain

text:
    Henry Merzbach, Resp’t, v. The Mayor, Aldermen and Commonalty of the City of New York, App’lt

      (New York Common Pleas, General Term,

      Filed November 5, 1894.)

    New York city—District attorney—Fees op notary.
    In the absence of proof of an appropriation for such purpose, the district attorney of the city and county of New York has no implied authority, as a public officer, to subject the municipality to a liability for services of a notary public.
    Appeal from a judgment for the plaintiff upon a verdict in Ms favor, and from an order denying the defendant’s motion, made upon the minutes, for a new trial.
    ■ Action to recover his statutory fees as a notary'to which the plaintiff claimed to be entitled for services performed by him at the request of the district attorney of the city and county of New York, in and about the necessary and proper administration of the affairs of the latter’s office, and while the plaintiff was employed as a clerk or messenger in said office at a salary payable from the city treasury.

      William H. Clark (David J. Dean and Wm. A. Sweetser, of counsel), for app’lt; Herman Frank, for resp’t.
   Bischoff, J.

In the absence of positive inhibition a public officer is authorized to incur, on behalf of the body politic of which he is the representative, such expense as may be reasonably necessary to a proper performance and discharge of the duties imposed upon him. People ex rel. Gardenier v. Board of Supervisors of Columbia Co., 134 N. Y. 1; 45 St. Rep. 311. He is not personally liable for the expense so incurred, People v. Board of Supervisors of N. Y., 32 N. Y. 473; and if he has defrayed it he is entitled to reimbursement. Id.: Bright v. Chenango Co., 18 Johns. 242; Powell x. Newburgh, 19 id. 284; U. S. v. Flanders, 112 U. S. 88; People v. Monroe Co., 15 How. Pr. 225; Throop on Public Officers, § 495; Am. & Eng. Ency. of Law, vol. 19, p. 540. By express provision of the Revised Statutes (Banks Bros. 7th ed., vol. II, pp. 978, 979, subds. 2 and 9 of § 3, title 4), “the fees of the district attorney, and all expenses necessarily incurred by him in criminal cases arising within the county,” and “.the moneys necessarily expended by any county officer in executing the duties of his office, in cases in which no specific compensation for such services is provided by law ” are made proper charges against the county; and by § 27 of the Consolidation Act (chap. 410, Laws 1882), all proper charges against the county of New York are made such against the corporation of the city and county of New York.

One who is employed to render services of a particular kind cannot, in the course of such employment, be required to render services of a different character and distinct from those which he has engaged to perform ; and if he is commanded by his employer to perform services requiring special qualification, skill and capacity, unconnected with his regular employment, an implied promise arises to pay him, by way of additional compensation, what those services are reasonably worth. Woods Master and Servant, § 86; Lawson’s Rights, Rem. & Pr., vol. 1, §§ 254, 257. The same rule obtains in the public service. Throop on Public Officers, § 492; Am. & Eng. Ency. of Law, vol. 19, p. 500, and cases in note 4; Mayor, etc., v. Muzzy, 33 Mich. 61; Am. Rep. 670; U. S. v. Brindle, 110 U. S. 688; Converse v. U. S., 21 How. U. S. 463; 62 U. S. 192.

Notwithstanding, however, our approval of the foregoing propositions, we reach the conclusion that the plaintiff’s recovery should not prevail, and that it was error to deny the defendant’s motion for a nonsuit:

The district attorney is a county officer, and his office a county office. People ex rel. Gardenier v. Board of Supervisors of Columbia Co., 134 N. Y. 1; 45 St. Rep. 311; People v. Board of Supervisors of N. Y., 32 N. Y. 473; MacDonald v. The Mayor, etc., of N. Y. 32 Hun, 89. The district attorney of the county of New York is, however, also a city officer within the meaning of the Consolidation Act (chap. 410, Laws 1882). By chap. 304, Laws 1874 (Consolidation Act, § 26), the political divisions known as the city and the county of New York were constituted one body corporate and politic and from thenceforth all county officers were city officers as well. People ex rel. Schultze v. Myers, Comptroller, etc., 61 Hun, 500; 41 St. Rep. 150. Sections 46 and 47 of the Consolidation Act (chap. 410, Laws 1882), require all “heads of departments,” “boards” and “officers” of the city so. to regulate their expenditures as not to exceed the yearly appropriation, and inhibit the incurring of any expense for which no appropriation was previously made. In the absence of proof of such an appropriation, therefore, it cannot be said that the implied authority of ■the district attorney, as a public officer, to subject the municipality to liability for the plaintiff’s services, was extant. No.such proof was adduced on the trial. Hence the facts did not constitute a cause of action against the defendant. In MacDonald v. The Mayor, etc., 32 Hun, 89, upon which case counsel for respondent here partly relies, the element of an appropriation was present..

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

All concur.


author: BlSCHOFF, J.

text:
    Caroline Nagel, Resp’t, v. Frederick Nagel, Impleaded, etc., App’lt.

      (New York Common Pleas, General Term,

      Filed November 5, 1894.)

    Appeal—Conflicting evidence.
    A decision of the trial judge, upon conflicting testimony, will not be disturbed on appeal. ' ,
    Appeal from a judgment- rendered by the court without a jury.
    Action to set aside certain conveyances.

      L, Whitney Searle (Elliott WiUiams, of counsel), for app’lt; Louis Wendel, Jr. and Robert J. Robeson, for resp’t.
   BlSCHOFF, J.

A careful examination- of the evidence in this case discloses no ground for our disturbing the result reached by the learned trial judge upon the very conflicting testimony adduced. It is claimed that certain unexplained inconsistencies in the testimony of the plaintiff militate against her recovery, but in view of similar inconsistencies appearing in the evidence of con-tradicting witnesses, and of the fact that the plaintiff had an imperfect understanding of the English language, it would appear that the credence lent by the trial judge to her testimony was justified under the circumstances of the case.

The action was brought to set aside two deeds of conveyance of the same property, the one alleged to have been obtained from the plaintiff by fraud on the part of the grantee, the defendant Trogisch, and the other being from that defendant to the defendant Nagel and claimed to have been founded upon no consideration. The evidence given in support of the complaint is found to ‘be sufficient to justify the judgment as rendered in favor of the plaintiff and the preponderance is not with the defendant-appellant in that degree which would call for its reversal.

It is contended that the property in suit was rightfully in the name of the appellant, irrespective of the means employed by the defendant Trogisch in obtaining the conveyance from the plaintiff, but this argument is founded upon the assumption that the plaintiff's title was derived through the original payment by appellant of the purchase price, and the finding that the purchase in the first instance was upon a consideration furnished from the plaintiff’s own funds deprives the contention of force.

Appellant makes no point of exceptions taken to rulings upon the trial, but from an examination of them we are satisfied that no prejudice resulted.

Judgment affirmed, with costs.

All concur.


text:
    Caroline Grace Page et al., Resp’ts, v. The Metropolitan Elevated Railway Company et al., App'lts.

      (New York Common Pleas, General Term,

      Filed November 5, 1894.)

    Appeal—Findings.
    Where the general term, has the facts of the case before it, support for the conclusions of law may be sought upon the evidence, unless the trial court or referee has, by an express finding or ruling, concluded questions, essential to the judgment, against the respondent.
    Appeal from a judgment of the court at equity term.

      Davies, Short & Townsend (Julien T. Davies and Brainard Tolies, of counsel), for app’lts; William N. Cohen and William H. Paige, Jr., for resp’t.
   Bischoff, J.

But one point is urged upon this appeal, and this relates to the court’s award of fee damage in view of the findings of fact, which, it is claimed, render the jndgment erroneous upon any method of computation. Upon the evidence adduced the amount of damage was to be arrived at through a comparison between the value of the premises in 1873 and their value at the present date, making allowance for wear and tear of the building, and holding in view the general increase of 50 per cent, upon land values in the vicinity.

It was, perhaps, also possible to arrive at a conclusion in this regard by computiug the difference between the rental value at the present time and a nominal rental value, availing of a proven ratio of rental to fee values. The arguments of counsel are based respectively upon a divergence as to their basis of calculation by either method, and this is principally due to the fact that the finding of the court in certain instances declared the values to be “ about ” a given sum, which language the appellants take to inted an express finding of an exact amount, while the respondents contend that a larger value, as proven, may well be taken as found. Where the court at general term has the facts of the case before it, all the evidence being contained in the appeal book, support for the conclusions of law may be sought upon the evidence, unless the trial court or referee has, by an express finding or ruling, concluded questions essential to the judgment against the respondent. Paisley v. Casey, 41 St. Rep. 339; Porter v. McGrath, 41 Supr. Ct. R. 84. The finding that the value of the premises in the year 1873 was “ about $15,000,” the exact words of defendants’ expert, is not in conflict with the evidence that the 'precise sum paid as consideration for the sale of the property at that time was $15,250, which would seem to have been the basis upon which the court’s computation was founded. Upon this basis the award of fee damage of $1,400 finds support and in no way is in conflict with the other findings made. The evidence shows that the value of the land at the period considered could be taken as $8,000, leaving the sum of $7,250 to represent the value of the building. Deducting from this last sum the decrease in value by reason of wear and tear,- as shown to be $1,500, and allowing 50 per cent, for increase of land value, we have the following result:

Original value of property (1873)............$15,250

Yalue of land (1873)...................... 8,000

Yalue of building (1873)................... 7,250

Building, with deduction................... $ 5,750

Yalue of land and increase.................. 12,000

Normal value......................... $17,750

Present value......................... 16,125

Decrease..............................$ 1,625

which sum, less a reasonable deduction for benefits, as found generally by the court, would justify the finding, as to damage, which was made.

The judgment should be affirmed with costs.

All concur.


author: Bischofp, J.

text:
    Acalus L. Palmer, Resp’t, v. The Great Western Insurance Company, App’lt.

      (New York Common Pleas, General Term,

      Filed November 5, 1894.)

      1. Insurance—Marine—-Beneficiary.
    An action on a policy, in words “P. I. Kevins & Son, on account of whom it may concern, in case of loss to be paid to O. A. Palmer,” is maintainable by an owner, not specifically named, upon proof that the insurance was intended to be effected for his benefit.

      2. Same—Other insurance.
    Under a policy, which contains what is usually termed the “American clause, ” the fact that there are subsequent policies underwritten by others, cannot make any difference as to the apportionment of the loss as between the underwriter in the first policy and the assured, or those who represent the insurable interest on board at the time of' the loss, not covered by that policy.
    3. Same—Waiver.
    A company, by retaining the proofs of loss and interest without objection to their sufficiency, and putting its refusal to pay upon other grounds, waives further proof.
    4. Former adjudication—Effect.
    A judgment is conclusive, in another action, between the same parties, as to all the issues litigated, or which might have been litigated in the-former action.
    5. Same.
    That the former recoveiy was by the plaintiff in this action jointly with others, was held not to impair the effect of the judgment as res judicata.

    6. Pleadings—Proof.
    The rule of secundum allegata et probata will not permit a recovery upon, a cause of action other than the one alleged.
    7. Same—Variance.
    An immaterial variance does not require an amendment of the complaint.
    8. Principal and agent—Fraud.
    The principle that an agent will not be permitted to retain a personal profit out of his principal’s transactions, will not enable the latter to claim the fruit of a fraud perpetrated by his agent upon a third person, for which such person has redress against the agent.
    Appeal from a judgment for the plaintiff -which was rendered on the verdict of a jury in his favor; and from an order denying the defendant’s motion, on the minutes for a new trial.
    Action to recover upon a policy of marine insurance.
    Evarts, Choate & Beaman {Henry W. Hardon and Treadwell' Cleveland, of counsel), for app’lt; W. W. Goodrich, for resp’t.
   Bischofp, J.

The action was upon the defendant’s policy, dated January 18, 1879, insuring P. J. Nevins & Son “ on account of whom it may concern,” against loss from the perils of the sea, barratry of the master or crew, and all other perils, losses or misfortunes which should come to the hurt, detriment or damage of the bark “ Brothers’ Pride,” her tackle, apparel and other furniture, “ at and from Cardiff to and from Cienfuegos or other port or ports in Cuba, and thence to a port north of Hatteras,” in the sum of $2,000. The bark, inclusive of her tackle, apparel and other furniture, was, by the terms of the policy, “ valued at sixteen thousand dollars without' any other account to be given by the assured to the assurers ; ” and payment, in the event of loss, was to be made to C. A. Palmer. It was further provided by the policy that the loss, if any, should be paid within thirty days after proofs of loss and interest in the bark; that the as-surer should be liable only for the deficiency remaining after applying towards the payment of any loss to the interest assured tne amount of all prior insurance, but that subsequent insurance should not have the effect of impairing the assurer’s liability.for the amount assured; that the insurance should enure to the assured personally and not to exceed' his interest at the time the policy was negotiated; that the policy should be void if transferred or assigned without the consent of the assurer; and that any loss to the interest assured should be adjusted on the basis of the agreed valuation of the bark, her tackle, apparel and other furniture.

The trial resulted in a verdict for the plaintiff, and from the judgment entered thereon, as well as from an order denying a motion on the minutes for a new tiial, the defendant appeals.

The complaint alleged that on or about May 7, 1879, the “ Brothers’ Pride,” while at sea and bound on her voyage from a port in Cuba to a port north of Hatteras, was wrecked and totally lost from one of the causes insured against; that at the time of the commencement of the risk and up to the time of the loss the plaintiff was and continued to be the owner of forty-three sixty-fourth parts of the bark; that he had complied with all the conditions of the insurance on his part to be performed, and given due notice and proof of his interest and loss to the defendant; and that no part of the sum assured was paid although such payment was duly demanded.

The answer denied each of the aforementioned allegations of the complaint and interposed, as affirmative defenses, that the “ Brothers’ Pride ” was scuttled and sunk, or cast away, with the privity, connivance and consent of the plaintiff, and solely to claim the insurance money; that the policy was avoided because of the false and fraudulent character of the proofs submitted, by the existence of prior insurance by means of which’the plaintiff was fully indemnified, and because the bark was rendered unseaworthy from an excessive cargo; and furthermore, that the policy was void because it was effected with intent to defraud the defendant and by means of fraudulent misrepresentation, suppression and concealment of material facts.

By supplemental complaint it was alleged that, subsequent to the commencement of this action, the plaintiff, jointly with one Daniel J. McLaughlin and C. A. Palmer, recovered a judgment on the merits against the defendant, in the superior court of the city of New York, upon a policy of insurance affecting the “ Brothers’ Pride ” for the same voyage. The answer to the supplemental complaint disputed the identity of the issues in this action with those in the superior court action.

On this appeal the defendant urges as grounds for reversal that the plaintiff not having been a party to the insurance contract, could not maintain an action to recover thereon ; that the defendant was discharged from liability under the policy in suit because the plaintiff was fully indemnified by prior insurance; that the defendant was discharged from liability because the plaintiff was otherwise fully indemnified; that the plaintiff did not comply with the conditions of the policy in suit respecting proofs of loss and interest; that there was a failure of proof respecting the seaworthiness of the “Brothers’ Pride,” or that she was lost from one of the causes insured against, and respecting any demand for payment of the policy in suit; that there was material error in the rulings of the trial judge. We proceed to notice these grounds seriatim.

1. That the plaintiff could not maintain the action because he was not a party to the insurance contract. It is sufficient' to say to this that in McLaughlin v. The Great Western Ins. Co., 46 St. Rep. 759, this court held an action upon a policy in precisely the same words, “ P. I. Nevins & Son, on account of whom it may concern, in case of loss to be paid to C. A. Palmer,” to be maintainable by an owner not specifically named upon proof that the insurance was intended to be effected for his benefit. The point is there discussed, and the accuracy of that decision we here affirm. See, further, Hooper v. Robinson et al., 98 U. S. 219, and note to same cases in Book 25, U. S. S. C. R., Lawyers’ Co-op. ed. The requisite proof appeared in this action from the testimony of the plaintiff, and of his witness, W. H. Nevins. True, there may be said to have been a conflict of evidence respecting the fact but it was properly submitted to and determined by the jury in the plaintiff’s favor. That the plaintiff was permitted to recover upon proof that he owned fifty-one of the sixty-four shares of the bark, whereas the complaint alleged his ownership to be forty-three shares, and that no amendment of the complaint was had, does not invalidate the judgment. The rule which requires the recovery to be secundum allegata, relates to the cause of action, that is to say, no recovery will be permitted upon a cause of action other than the one alleged. Plainly, proof that the plaintiff owned fifty-one instead of forty-three shares did not change the cause of action. Defendant did not, when the proof was offered, claim to have been surprised or misled. The only objections to the proof were that it was irrelevant, immaterial and incompetent.

The variance therefore was immaterial and did not require amendment of the complaint. Walsh v. Washington Ins. Co., 32 N. Y. 427, 439; Bank of Cooperstown v. North, 28 N. Y. 545; Catlin v. Gunter, 11 N. Y. 374; Place v. Minster, 65 N. Y. 89. The objections stated were untenable as the plain purport of the evidence was to meet and refute the defendant’s evidence in support of the defense that the plaintiff was fully indemnified by prior insurance. Neither can we say that the finding that the plaintiff was the owner of fifty-one shares was against the weight of the evidence or without adequate support in the evidence. Both the plaintiff and his son, C. A. Palmer, testified that the eight shares, which, from the St. Johns registry appeared in the name of the latter, were in fact the property of the former, the same having been purchased by the son, acting in that regard as the agent and attorney for the father, at a sale under foreclosure of a mortgage held by the latter. We do not fail to observe that the father’s ownership of these eight shares was called in question by the alleged testimony of father and son when examined as Witnesses for the defense on the trial of Captain Tower for having cast the bark “Brothers’ Pride” away, and from which is appeared that both witnesses then admitted the eight shares to have been the property of the son. Nor do we fail to consider the evidence for the defense on the trial of this action to the effect that both father and son, on several other occasions, had made statements which conflicted with the father’s claim of ownership of the eight shares. But the accuracy of the minutes of the testimony taken by Chief Justice Allen, who presided at the trial of Captain Tower, was disputed by the witnesses on the trial of this action, and the conflicting statements respecting the ownership of the eight shares were explained to have been made with reference to the fact that the shares appeared of record in the son’s name, and at times when the father’s right to those shares was in no manner questioned. Under the circumstances, therefore, it appears to have been proper that the jury should decide the disputed question of fact, and though upon the evidence they might well have found otherwise, we cannot say that, in finding the plaintiff to have been the owner, they erred.

II. That the defendant was discharged from liability under the policy in suit because the plaintiff was fully indemnified by prior insurance. For the purposes of measuring the defendant’s liability the premiums paid for the prior insurance are to be deducted from the amount. Phillips on Ins. § 1257. Observing this, and accepting the prior insurance at £2320, or £2500 less premiums £180, which in current money at $4.86, is equal to $11,275 20-100, and the plaintiff’s interest in the bark as fifty one-sixty-fourths as found by the jury, which, on the basis of the agreed valuation of $16,-000, was worth obove $13,600, it is of course apparent that the plaintiff was entitled to the whole amount of the policy in suit, $2,000. Defendant contends, however, that the plaintiff is chargeable with £600 additional, for prior insurance, and that if so charged he will appear to have been fully indemnified without resort to the policy in suit. Touching these £600, there was evidence tending to show that the insurance was a personal speculation of one of the plaintiff’s agents, and paid to him without the plaintiff’s knowledge, and that it was never intended for or received by the latter. Upon proper submission of the question to them the jury so found. It is inconceivable therefore, how the plaintiff could have claimed the benefit of that insurance, and, if not, assuredly it is not to be charged to him. Defendant seeks, in this respect, to invoke the aid of the familiar principle that an agent will not be permitted to retain á personal profit out of his principal’s transactions, but will be compelled to account to his principal for the profit. That principal, however, will not enable one to claim the fruit of a fraud perpetrated by his agent upon a third person, and for which the latter has redress against the agent. If the agent had no insurable interest in the subject of the insurance he was not entitled to receive the proceeds of the policy intended to be effected for his benefit. The insurance not having been effected for the benefit of the principal he has no right to claim it; and, if he does, he párticipates in the fraud. If the sum assured is paid to him the defrauded assurer is entitled to its return and may resort against the principal to recover it Upon no proper theorj’, therefore, is the plaintiff to be charged with the £600 above referred to. Garvey v. Jarvis, 46 N. Y. 310.

III. That the defendant was discharged from, liability under the policy in suit because the plaintiff was otherwise fully indemnified. This has reference to the payment to the plaintiff, or rather to C. A. Palmer for the plaintiff, by the New England Insurance Company, of the sum of two thousand dollars upon a policy affecting tire hull and tackle of the “ Brothers’ Pride.” The, New England Insurance Company’s policy’-, however, was subsequent to the one in suit, and both policies contained what is usually termed the “ American Clause,” to - wit: that the assurer should be answerable only for the deficiency remaining after applying towards the payment of any loss, the amount of all prior insurance, but that the assurer should not be entitled, in the event of loss, to contribution from subsequent assurers. This clause was elaborately discussed and construed, in The American Ins. Co. v. Griswold, 14 Wend. 399, and it was said by Chancellor Walworth (p. 483) with reference thereto : “ It appears to be impossible, therefore, under this policy, that the circumstance of there being subsequent policies underwritten by others, could make any difference as to the apportionment of the loss as between the underwriter in the first policy and the assured, or those Who represented the insurable interest on board at the time of the loss, not covered by that policy. If either of the subsequent underwriters have paid to the assured, upon a compromise of the claims made upon them, more than they were legally bound to pay under their contracts, that is a matter with which the underwriters in the first policy have no concern; since they are not bound to refund anything to the subsequent underwriters, and never had any claim upon them for contribution. If the assured have received anything under such a compromise which they cannot conscientiously retain, they should restore it to those from whom it has been received; but the American Insurance Company or its stockholders have no equitable right to insist that it shall be allowed to them in discharge of their legal liability under the first policy.” The case last above referred to seems to be conclusive that the point under discussion cannot avail the defendant for reversal. See, also, Phillips on Ins., § 1251; Thomas v. Builders' Mut. Ins. Co., 119 Mass. 122; Lucas v. The Jefferson Ins. Co., 6 Cow. 635.

IY. That the plaintiff did not compljr with the conditions of the policy in suit respecting proofs of loss and interest. By this is meant that the plaintiff did not furnish the proofs required of him as a condition precedent to his right of action. It appears, however, in evidence that proofs of loss and interest were furnished and that the same were retained by the defendant without objection as to their sufficiency, and that the refusal to pay the sum assured was based upon grounds which did not relate to the sufficiency of the proofs furnished. Under the circumstances, therefore, further proof was waived by the defendant, and the court properly instructed the jury to that effect. Bodle et al. v. The Chenango Co. Mut. Ins. Co. et al., 2 N. Y. 53; O'Neil v. The Buffalo Fire Ins. Co., 3 N. Y. 122; Keeney v. The Home Ins. Co., 71 N. Y. 396; Brink el al. v. The Hanover Fire Ins. Co., 80 N. Y. 108.

Y. That there was a failure of proof respecting the seaworthiness of the “ Brothers’ Pride,” or that she was lost from one of the causes insured, against. Prom the record of this appeal it appears unchallenged that the superior court action was originally brought to recover upon three several policies, two of them, including the one in suit, being intended to cover the hall and tackle of the “Brothers’ Pride,” and the other, her freight; that the conditions of the insurance as well as the causes of loss insured against were the same in each instance, and that each of the policies comprehended a risk for the voyage from a port in Cuba to a port north of Hatteras, while bound on which the bark was lost; that the policies varied only in that under those covering the hull, the defendant also assumed the risk at and from Cardiff from which port the bark sailed to Cienfuegos and Cardenas, both in Cuba, immediately preceding her voyage from the latter port; that before the trial of the superior court action the claims under the policies on the hull were withdrawn, and that the recovery therein was upon the freight policy only.

That the superior court judgment was conclusive in another action between the same parties as to all the issues litigated, or which might have been litigated in the former action, was held by this court in McLaughlin v. The Great Western Ins. Co., supra. That the former recovery was by the plaintiff in this action jointly with others did not impair the effect of the judgment as res judicata. Lawrence v. Hunt, 10 Wend. 82; Miller v. Manice, 6 Hill, 114 To entitle the plaintiffs in the superior court action to any recovery whatsoever it was essential for them to establish the seaworthiness of the bark when she sailed from Cienfuegos upon her last voyage, and that she was lost while bound on that voyage from one of the causes insured against. Those issues were directly involved on the trial of that action and decided in favor of the plaintiffs. Hence they could not be litigated again in this action, and the learned trial judge properly excluded evidence to show to the contrary of the facts established by the judgment. For the same reasons also the defendant’s motions for a non-suit and for the direction of a verdict, in so far as those motions were predicated of the alleged absence of proof of the same facts, were properly denied. On like grounds the defendant’s exceptions taken to the charge respecting the conclusiveness of the former recovery, and to the refusals of the court to submit the facts thereby established for determination by the jury, are unavailable for the assignment of error.

That the “Brothers’ Pride” was seaworthy when she left Cardiff for Cienfuegos appeared from the testimony'of the plaintiff’s witnesses, Grant and Brownell (Am. & Eng. Ency. of Law, Vol. 14, p. 368), and that she actually departed from Cardiff, bound for Cienfuegos, from thence to Cardenas, and from the latter port on her last voyage, was shown by the testimony of Roberts, another of the plaintiff’s witnesses. These facts were submitted to the jury and found by them. That the bark was, when she sailed from Cienfuegos and Cardenas, in seaworthy condition, appeared from the superior court judgment. Unquestionably, therefore, the risk assumed by the defendant, under the policy in suit, attached, and continued at the time the bark was lost. Am. & Eng. Ency. of Law, Vol. 14, p. 369, and cases cited.

YI. That there was material error in the rulings of the trial judge. Many of the exceptions taken to the rulings have been considered in our discussion of the points hereinbefore noticed. Those remaining were not specially argued by counsel. ■ They have, however, been examined and with respect to them our conclusion is that no error of gravity is presented.

The judgment and order appealed from should be affirmed with costs. All concur.


author: Bischoee, J.

text:
    Maltby K. Pelletreau, as Receiver, etc., Resp’t, v. The United Electric Light and Power Company, App’lt.

      (New York Common Fleas, General Term,

      Filed November 5, 1894.)

    Pleading—Answer—Statute of frauds.
    Unless the defense of the statute of frauds is pleaded, the question whether the contract is, or is not, open to objection under such statute, is not in the case.
    Appeal from a judgment of the district court in the city of New York for the second judicial district, rendered by the justice, without a jury, in favor of the plaintiff.
    Action upon contract or for work, labor and services.

      Charles S. Kellogg, for app’lt.
   Bischoee, J.

According to the return of the justice below, the defendant pleaded the statute of limitations and a general denial, no specification of the statute of frauds being made.

Therefore the question, toward which much argument was devoted by the appellant, whether or not the contract in suit was open to objection under the latter statute, is not in tbe case. Crane v. Powell, 139 N. Y. 379; 54 St. Rep. 659

The judgment is, however, successfully assailed for insufficiency of proof, it being in no way made to appear that the sum of $57, the amount for which judgment was rendered, or any other sum, was agreed upon by the parties as the price of the goods in suit, and assuming that the recovery proceeded not upon the contract but upon the claim for work, labor and services and materials furnished, then the absence of any testimony as to their value presents a fatal defect in the evidence given to sustain that claim.

Judgment reversed and a new trial ordered, with costs to abide event

All concur.


text:
    Henry Reens, Resp’t, v. The Mail and Express Publishing Company, App’lt.

      (New York Common Pleas, General Term,

      Filed November 5, 1894.)

    1. Negligence—Contributory.
    The duty to look both ways before crossing a street is not imposed, as $ matter of law, upon the party crossing.
    2. Same.
    The question of fact whether an act does, or does not, constitute contributory negligence, depends upon the circumstances of the particular case.
    3. Same.
    The only material issue upon the question of the drinking of the injured pariy, is as to his condition at the time of the accident.

      4. Same—Ownership.
    The evidence was held sufficient to take the question of defendant’s ownership of the wagon, and of its liability under the rule of respondeat superior to the jury.
    5. Trial—Evidence.
    A party has not the right to give immaterial evidence because his adversary has done so before him.
    Appeal from a judgment entered upon a verdict and from an order denying a motion for a new trial.
    Action for personal injuries occasioned by negligence»

      William Irwin, for app’lt; Gardozo & Nathan (Edgar J. Nathan, of counsel), for resp’t.
   Bischoee, J.

The plaintiff alighted from a street car and sought to reach the sidewalk. When in the act of crossing the street from the track to the curb he was struck by a wagon in the control of defendants’ servant and sustained injuries for which damages are here claimed.

Appellants’ argument for a reversal on the facts appears to proceed upon the mistaken theory that, as between plaintiff and the defendants’ driver, the sole duty of care in avoiding the accident in question rested upon the former when attempting to cross the street.

The fact that plaintiff looked up and down the street, when beside the car after alighting, or, as he testified, .“ on both sides of the car,” and did not see the wagon which, when he started to cross, came upon him at a great rate of speed, does not by any means suffice to impute contributory negligence as a matter of law. It is true that in the case of a person crossing a railway track, negligence is predicable of that person’s fáilure to observe an approaching train when in plain sight, it being the legal duty of the individual, in such a case, to look both ways before attempting to cross, Burke v. N. Y. C. & H. R. R. R. Co., 57 St. Rep. 7; 73 Hun, 32, but a broad distinction is to be noted between these cases and such a one as the present, .for the constantly impending danger, where the crossing of- a railway track is attempted, is an essential element which is lacking in the case of a wayfarer crossing the street, Moebus v. Hermann, 108 N. Y. 349; 13 St. Rep. 648, and it was therefore held in the above case that the duty to look both ways before crossing a street was’ not imposed as a matter of law upon the party crossing.

The case of Hamilton v. Third A. R. R. Co., 56 St. Rep. 397, cited by appellant, does not apply to this action, for here there was no element of a close calculation, plaintiff not having seen the wagon approaching, and thus having assumed no voluntary hazard. The question of fact whether or not an act constitutes contributory negligence depends upon the circumstances of the particular case, and there was sufficient evidence in this case to call for determination by the jury upon the point in question. Plaintiff and defendants’ driver had equal rights in the street and each could rely upon the observance by the other of the reciprocal obligations to avoid an accident which the law imposes. McManus v. Woolverton, 47 St. Rep. 107; Anselment v. Daniell, 4 Misc. R. 144; 53 St. Rep. 133. The jury could, therefore, properly find that there was no contributory negligence, had it been satisfied that plaintiff had merely failed to anticipate a neglect of this duty upon the part of defendants’ servant, Anselment v. Daniell, supra, which finding is not to be disturbed upon the evidence, although the jury might perhaps have also drawn contrary inferences from the facts testified to. Schwartz v. Wechler, 49 St. Rep. 145.

The fact that defendant failed to deny that the witness Eeagan, the driver of the wagon causing the injury, was employed by the corporation, taken with this witness’ testimony that he was employed by the “Mail and Express” for the purpose of delivering newspapers, together with the fact that the wagon in' question bore the name of the “Mail and Express,” furnished sufficient evidence to take the question of defendants’ ownership of the wagon, and of its liability under the rule respondeat superior, to the jury. Tuomey v. O'Reilly, etc. Co., 3 Misc. R. 30; aff’d, court of appeals June 4, 1894; Wylde v. Northern R. Co., 53 N. Y. 156; Seaman v. Koehler, 122 N. Y. 646; 33 St. Rep. 729; Doherty v. Lord, 59 St. Rep. 445.

Defendant urges that the exclusion of certain evidence sought by it to be elicited with regard to plaintiff’s habits, was error, but there is found to be no force in the contention.

The only material issue upon the question of plaintiff’s drinking was as to his condition at the time of the accident. What his habits were was immaterial to that issue, and the fact that plaintiff had testified in his own behalf that it was not his habit to get drunk, did not render the defendants’ evidence admissible as of right. No objection was taken to the admission of the plaintiff’s testimony in this regard, and a party has not the right to give immaterial evidence because his adversary has done so before him. People v. Dowling, 84 N. Y. 486; Starin v. Kelly, 47 Supr. Ct, 288; aff’d, 88 N.Y. 418. In view of the evidence as to the extent and effect of the injury here sustained, we are unwilling to hold that the award of $5,100 damages is to be regarded as excessive.

Judgment affirmed, with costs.

All concur.


author: Daly, Ch. J. Btschoff, J.

text:
    Martin Reynolds et al., App’lts, v. Thomas Patten, Impleaded, etc., Resp’t.

      (New York Common Pleas, General Term,

      Filed November 5, 1894.)

    Payment—Application.
    Though, where the parties do not make an application of a payment made by the debtor, the law presumes that it was their intention to extinguish the earlier indebtedness, and will so apply it, the creditor may apply it upon the later claim due him.
    Reaeg-ument of an appeal from a judgment of the general term of the city court of New York affirming a judgment in favor of the defendant, which was entered upon the report of a referee.
    Action by material men against contractor and owner for the foreclosure of á lien claimed pursuant to the provisions of the Mechanic’s Lien Law (Laws 1885, chap. 324) for the unpaid balance of the purchase price of certain materials sold to the contractor and alleged to have been used by him in making alterations under a contract with the owner.

      Edward W S. Johnston, for app'lts; Deyo, Duer & Bauerdorf (Robert E. Deyo, of counsel), for resp’ts.
   Daly, Ch. J.

When this appeal was decided upon the first argument, the court concurred in the able opinion of Judge Bischoee, which proceeded upon the theory that there was no evidence in the case of an application, or appropriation, by the defendant, or his contractor Fleming, of the last payment of $1,200, to any particular one of the three accounts included in the bill of $2,055.89, upon account of which that payment was made; and, that being the case, it was to be assumed that it was the intention of the parties to extinguish the earlier indebtedness, or that which accrued by the completion of the two jobs on Eighty-eighth street and Pleasure Bay, thus leaving a balance unpaid on the Eighty-sixth street job, for which this lien was filed.

It appears, however, from the evidence befere the referee, that, after the .payment of $1,200 had been made, the contractor rendered a bill to the defendant for $581.57, claiming then and at the trial that that sum was still due for the Pleasure Bay job; and also rendered a bill for $368.94, claiming that sum to be still due upon the Eighty-eighth street job; so it is manifest that he had not applied the payment upon either. As he also swore that the bill of $2,055.89, upon which he had received the $1,200, included all the balance which was due on all three jobs, except a per diem which was properly disallowed by the referee, and as the referee ialso properly disallowed $376.72 of excessive charges upon that bill, the evidence is conclusive that by the payment in question the claim for work on Eighty-sixth street had been extinguished, vtz.:

Bill of October, 1889............................ $2,055 89

Excessive charges..................... $ 376 72

Cash........t....................... 1,200 00—1,576 72

Balance................................... $479 17 or less than the amounts claimed to be still due upon the Eighty-eighth street and Pleasure Bay jobs. See testimony of Fleming at folios 274, 275 and 276.

The opinion of the referee shows the reasoning by which he arrived at his conclusion, which is sustained by the evidence, and the judgment should be affirmed.

Btschoff, J.

Upon the former argument of this appeal our determination, adversely.to the respondent, was based upon the assumption that all the parties had conceded a certain bill as rendered to correctly represent a balance due from the defendant Patten to the defendant Fleming, which, but for certain payments and deductions, would be applicable towards the satisfaction of the plaintiffs’ lien. Reynolds v. Patten, 5 Misc. Rep. 215; 54 St. Rep. 830. Upon the motion for re-argument, however, it appeared that this balance was conceded merely for the purpose of demonstrating the absence of an indebtedness, and not as a basis for any liability, and so that the concession was a qualified one.

Having further examined the record, and considered the questions involved in the appeal, I now unhesitatingly concur in the opinion of the chief judge, and upon the grounds therein stated


text:
    Fillmore Riker, Resp’t, v. James L. Curtis, App’lt.

      (New York Common Pleas, General Term,

      Filed November 5, 1894.)

    1. Limitation—Summons left with sheriff.
    Proof that the summons was lodged with the sheriff, within six years, for service upon the defendant, without further proof that the defendant was at the time a resident of the same county, does not operate to prevent the effect of the statute.
    2. Pleadings—Amendment—Complaint.
    The appellate court can direct an amendment of the pleadings only in the cases where the amendment could have been directed by the trial court.
    3. Same—Secundum allegata et probata.
    The rule of secundum allegata et probata obtains in all cases where substituted issues were not litigated on the trial.
    Appeal from a judgment of the general term of the city court of New York, which affirmed a judgment for the plaintiff entered upon a verdict directed by the court.
    Action to recover moneys loaned and to be repaid; the defenses being a general denial, that the cause of action did not accrue within six years preceding the commencement of the'action, and that the moneys alleged to have been loaned were in fact paid upon the purchase of a demand in favor of the defendant against a third person.

      E. A. S. Man, for app’lt; Edgar A. Turrell, for resp’t.
   Bischoff, J.

The complaint declared upon .two causes of action for money loaned, the defenses interposed being a general denial, that the several causes of action did not accrue within the six years immediately preceding the commencement of the action, and that the moneys alleged to have been loaned were in fact paid upon' the purchase of a demand existing in favor of the defendant against a third person.

Regarding the action as having proceeded upon the causes of action alleged, it was clearly error for the trial court to deny the defendant’s motion, made when the evidence was finally submitted, for the direction of a verdict in his favor. It was then unchallenged that the summons was not served upon the defendant until some time after the expiration of six years immediately succeeding the accrument of thé several causes of action, and there was no evidence whatever from which it could be made to appear, even inferentially, that the defendant was not at all times a resident of the state, or that the bar of the statute of limitations was removed by a new promise of part payment. The defense of the statute had, therefore, prevailed and a judgment for the defendant was inevitable. Proof that the summons was lodged with the sheriff within the six years, for service upon the defendant, without further proof that the defendant was at the time a resident of the same county, did not operate to prevent the effect of the statute. Code Civ. Pro. § 399. Furthermore, it was conclusive from the unchallenged testimony of an unímpeached and disinterested witness that the defendant then was a resident of a county other than the one with the sheriff of which the summons was lodged for service. '

Deeming the evidence adduced on the trial sufficient to show either that the moneys sought to be recovered in this action were paid by the plaintiff to the defendant under a mutual mistake, or that the moneys were obtained by the defendant from the plaintiff by fraud, and .intending to re.voke the aid of a ruling that under such circumstances the statute of limitations was not set in motion until a demand for the return of the moneys upon discovery of the mistake or fraud, the general term below directed an amendment of the complaint to conform to the proof, and so affirmed the judgment.

That such an amendment was unauthorized is obvious. . No amendment of the complaint was asked for on the trial, and indeed, the trial court could riot have granted it since its effect would have been to substitute new and entirely different causes of action for those pleaded. Freeman v. Grant, 56 Hun, 640; 30 St. Rep. 621; Gas Light Co. v. R., W. & O. R. R. Co., 51 Hun, 119; 24 St. Rep. 154; Hill v. London As. Cor., 34 id. 65; Fisher v. Rankin, 55 Hun, 606; 27 St. Rep. 582; Nat. S. Co. v. Sheahan, 122 N. Y. 461; 34 St. Rep. 35; Cumber v. Schoenfeld, 16 Daly, 454. The authority of the appellate court to direct an amendment of the pleadings obtains only in the cases where the amend1 ment could have been directed by the trial court. Reeder et al. v. Sayre, 70 N. Y. 180; Harris v. Tumbridge, 83 id. 92. True, issues other thán those created by the pleadings may be litigated by consent of the parties, and where that has been done it is the province of the trial court to direct' an amendment of the pleadings to conform to the proof." If the amendment is omitted on the trial the appellate court, in the case stated, may either direct it or deem the pleadings to be amended. Fallon v. Lawlor, 102 N. Y. 228; Frear v. Sweet et al., 118 id. 454; 29 St. Rep. 972. In the absence of expressed consent to the litigation of other issues such consent may be inferred from the evidence offered upon the one side, and the absence of objections, or the character of the objections, upon the other. Frear v. Sweet et al., supra. No such consent, however, is inferable in the case under review, since the record fails to disclose the admission of any evidence whatsoever which was not relevant and competent to the issues created by the pleadings.

The rule requiring the recovery to be secundum allegata et probata obtained in all cases where it does not appear that substituted issues were litigated on the trial, Romeyn v. Sickles, 108 N. Y. 650; 1 Silv. Court of App. 594; 13 St. Rep. 864, and though the evidence may justify a recovery upon a cause of action other than 'the one alleged the appellate court is without authority to award it. It is the exclusive province of the trial court to determine the facts in the first instance. Riley v. Black, 1 Misc. Rep. 288, 292; 48 St. Rep. 759, and cases cited.

The judgments of the general and trial terms below should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.


text:
    William R. Robinson, App’lt, v. H. Edward Fincken, Resp’t.

      (New York Common Pleas, General Term,

      Filed November 5, 1894.)

    Appeal—Cask.
    The omission of the exhibits, introduced in evidence on the trial, from the return precludes any determination as to the matters litigated!
   Memorandum.—It appears that the plaintiff’s exhibits Nos. 1, 2, 3 and 4, and defendant’s exhibits Nos. 1 and 2, are omitted from the return, which omission precludes any determination -as to the matters litigated at this time.

It is, therefore, directed that the appeal be reheard at the additional general term of this court to be held December 20, 1894, the return to. be amended in the particulars noted meanwhile. Krokomki v. North N. Y., etc., Asson., 54 St. Rep. 119.


author: Per Curiam.

text:
    Lamson Consolidated Store Service Company, App’lt, v. Michael Conynham, Resp’t.

      (New York Common Pleas, General Term,

      Filed November 5, 1894.)

   Per Curiam.

As plaintiffs’ exhibit is not contained in the return the appeal must be reheard at the additional general term of this court to be held December 20, 1894, the return to be amended meanwhile by the addition of said exhibit. Robinson v. Finchen, handed down herewith.


author: Bischofe, J.

text:
    Benjamin F. Romaine et al., App’lts, v. Thomas T. Brewster, Resp’t.

      (New York Common Pleas, General Term,

      Filed November 5, 1894.)

    1. Appeal—Pinal judgment.
    A 'judgment of tlie city court awarding costs, the payment of which may be enforced by execution, is appealable to the common pleas.
    2. Same—Interlocutory judgment.
    No appeal lies to common pleas from an interlocutory judgment of the city court, overruling a demurrer.
    Appeal from a j udgment of the general term of the city court of New York, which reversed a judgment sustaining a demurrer to the defendant’s counterclaim.
    Action upon a lease in writing, and under seal, to recover two monthly installments of rent. Besides asserting a counterclaim for damages accruing therefrom the defendant pleaded eviction.

      Herman W. Schmitz, for app’lts ; Davison & Chapman (Lawrence Godkin, of counsel), for resp’t.
   Bischofe, J.

To an action upon his covenant to pay rent under a lease of an apartment in the plaintiffs’ apartment house, the defendant, besides pleading his eviction, from, and abandonment of the demised premises before the accrument of the installments of, rent sued for, interposed a counterclaim for damages alleged to have resulted from the eviction. The plaintiffs demurred to the counterclaim on the ground that it did not arise out of the contract, or transaction, set forth in the complaint as the foundation of the plaintiffs’ claim, and was not connected with the subject of the action. Code Civ. Proc., § 50, subd. 1. At special term of the court below the demurrer was sustained, but at general term the defendant had judgment for reversal with costs against the plaintiffs, and from that judgment the plaintiffs have appealed to this court.

The judgment under review awards costs against the plaintiffs’ payment whereof may be enforced by execution. It is final in form and so appealable to us. A final judgment however, upon a decision overruling a demurrer is unauthorized and erroneous. It most, therefore, be reversed, and the parties should cause the proper judgment to be entered in the court below. The only proper judgment is an interlocutory judgment, and from it no appeal will lie to this court. Biershenk et al. v. Stokes, 46 St. Rep. 179; 18 N. Y. Supp. 854.

It may perhaps be to the advantage-of the litigants here to say that the decision at general term of the court below was error. The allegations of the answer respecting the counterclaim nowhere make mention of a covenant of quiet enjoyment, expressed or implied, as having been entered into by the plaintiffs, nor is any breach of any such covenant assigned as the foundation of the counterclaim. The answer admits the execution and delivery of the lease mentioned in and annexed to the complaint, and then, in substance alleges that the plaintiffs, owing to their neglect to keep the part of the building of which they retained possession and control in a proper condition and state of repair, had caused a- nuisance to be created and maintained on the premises whereby the apartment leased to the defendant became untenantable, and he wás compelled to remove therefrom. Bradley v. DeGoicouria, 12 Daly, 393; Tallman v. Murphy, 120 N. Y. 351; 31 St. Rep. 483; Tallman v. Earle, 3 Misc. 76; Duff v. Hart, 40 St. Rep. 676. In the absence, therefore, of allegations essential to a cause of action ex contractu it must be assumed that the cause of action intended to be asserted is ex delicto, the allegations being sufficient for that purpose.

Treating the counterclaim as ex delicto it cannot be said to have arisen out of the contract or transaction set forth-in the complaint, i. e. the lease, nor is it connected with the subject of the action, the rent reserved. Edgerton v. Page, 20 N. Y. 281, 285.

The judgment should be reversed, with costs.

All concur.


author: Daly, C. J.

text:
    Henry Schwabeland et al., Resp’ts, v. Edward P. Holahan as Marshal, etc., App’lt.

      (New York Common Pleas, General Term,

      Filed November 5, 1894.)

    1. Trial—Calling- adversary as witness.
    A party does not admit all the testimony of his adversary as true by calling him as a witness, and the jury are at liberty to. adopt or reject it.
    2. Evidence—Admissions.-
    In an action of replevin against a marshal, it is not necessary to prove that he ever had possession of the property, where'he.averred in his answer that the property was taken from him by the replevin proceedings in the action and prayed for its restoration.
    3. Replevin—Demand.
    Where the original taking by the marshal was wrongful, no demand for the return of the property is necessary, before instituting replevin.
    Appeal by defendant from a judgment of the general term of the city court affirming a judgment for the plaintiff entered upon the verdict of a jury awarding to plaintiffs possession of -the property claimed in the complaint and six cents damages.
    Chas.. S. Bloomfield, for app’lt; Eorstei', Hotaling & Elenhe, for resp’t.
   Daly, C. J.

This was an action against a city marshal to recover a stock of goods alleged to have been wrongfully taken and detained by him from the plaintiffs on July 7th, 1892. The defense was a levy and taking of the property on July 1st, 1892, from one McCaw. by virtue of an execution against him. The principal issue was whether the levy was made on July 1st, or after that date as the plaintiffs did not acquire the property before July 2nd when they received it from McCaw. The first intimation of which plaintiffs had of a levy was the posting by defendant on July 7th, on the premises of a notice of sale of the goods. On the trial the marshal who was called as plaintiffs’ witness testified that he had made the levy on the 1st. In this he was corroborated by McOaw.-

No witness was called to contradict the marshal’s statement, but the plaintiffs claim that the jury were at liberty to reject his testimony as that of an interested party; and that his witness McCaw was discredited. The plaintiffs called the defendant as their witness to prove that he made the levy on July 7th, the date alleged in the complaint; the defendant stated that he had a levy on the 7th, but added that he made it on the 1st. The appellant claims that the plaintiffs are bound by this statement in the absence of conflicting testimony. The plaintiffs are not bound to admit all the testimony of their adversary as true although calling him as their own witness and the jury were at liberty to adopt or reject it. Gross v. Gross, 108 N. Y. 629; 13 St. Rep. 470. The jury might believe the evidence favorable to the plaintiffs as wrong from an unwilling witness and might treat that which was unfavorable with that degree of. belief which they thought it deserved considering the circumstances of the case. Becker v. Koch, 104 N. Y. 394; 5 St. Rep. 688; Wolf v. Farley, 40 St. Rep. 808; Davey v. Lohrmann, 48 Id. 716.

The circumstances which the jury might take into account in considering whether a levy was made on the 1st of July were: that the officer left no person in charge of the property, and that the judgment debtor, whom he called to corroborate him, transferred the property to the plaintiffs on the 2nd of July without mentioning the levy to them, and afterwards on July 9th made a bill -of sale to them of the property and subsequently on July 20th, that he afterwards commenced an action •against them to set aside the bill of sale on the ground of fraudulent representations by their agent that they had a purchaser for the business praying an injunction restraining them from interfering with the property'; claims which were wholly inconsistent with his knowledge of a levy actually made before any of the transfers, and of a right of possession in the marshal for the purpose of satisfying an execution in favor of a bona fide creditor. It is to be noted that the plaintiffs had commenced this replevin action before McCaw’s suit in equity and that he recites that fact in his complaint and yet fails to set up the important fact of a prior levy.

Under the circumstances we cannot say that the jury erred in finding that the levy of the marshal was made before the 7th when he posted his notice of sale. It is claimed on appellant’s part that the action will not lie because it is not shown that the marshal ever had possession of the property. It was not necessary to prove that fact since he averred in his answer that the property was taken from him by the replevin proceedings in this action and prayed for its restoration.

The exceptions are untenable. The admission of the judgment-roll in the superior court and the bill of sale of July 9th were proper in impeachment of McCaw even if not proper to show plaintiff’s title through him. But the judgment-roll was competent to show the transfer on July 2nd from McCaw to the plaintiffs. Of course the title could be attacked by any one not a party to the record and it was prima facie proof only. The admission of the bill of sale to Moss worked no injury to defendant as it merely contained facts called out by both sides from him when on the stand. The objection that no demand for a return of the property was proven is of no force because the original taking by the marshal was wrongful. Masten v. Webb, 24 Hun, 90; Stillman v. Squire, 1 Denio, 327. It is contended by appellant that the answer of the plaintiffs in McCaw’s action that they had possession of the goods on and after July 2nd is conclusive against their present claim against the marshal in this action; but that defense was set up as against McCaw and not against the marshal, and is merely an averment that as against McCaw they had such -possession.

The judge submitted to the jury the question whether the marshal relinquished his levy if he had one on July 1st, and instructed the jury that if he relinquished his rights and the property was turned over to the plaintiffs in good faith on the 2nd of July their verdict must be for the plaintiffs for the return of the property. The defendant’s counsel excepted as follows: I except to that portion of the charge wherein your Honer charged in relation to the relinquishment by the defendant.” This exception did not point out the error complained of, to wit, that if the marshal did relinquish his levy and left the property in possession of the plaintiffs the action could not be maintained. Part of the instructions to the jury on the subject of relinquishment were correct and the defendant’s vague exception to what was charged in relation to relinquishment was too general.

The judgment must be affirmed.

All concur.


text:
    Lazarus Strauss et al., App’lts, v. Warren Sage, Impleaded, etc., Resp’t.

      (New York Common Pleas, General Term,

      Filed November 5, 1894.)

    Evidence—Presumption—Bills and notes.
    In the absence of an allegation from which it will appear that the debt, of which the note is evidence, was contracted at a time anterior to the note, it must be assumed that the debt was contracted simultaneously with the giving of the note.
    Appeal from an interlocutory judgment which sustained a demurrer to the complaint. Action to enforce the liability of a trustee, or directo!, of a corporation organized under the provisions of chapter 267 of the Laws of 1875. The facts appear from the opinion.

      Taylor, Thompson & Kaufman {Daniel G. Thompson, of counsel), for app’lts; Strong, Ilarmon & Hathewson {Theron G. Strong, of counsel), for resp’t.
   Bischoff, J.

The action is brought upon the promissory note of the Manhattan Athletic Club, a corporation organized under chapter 267 of the Laws of 1875, dated October 10, 1892, and payable to the order of the plaintiffs four months after date, to enforce the liability of the defendant-respondent as a trustee of the club', under the following provisions of the act above mentioned, to wit: “ See. 8.' The trustees, directors -or managers of any society or corporation organized under the provisions of this act, shall be jointly or severally liable for all the debts due from said society or corporation, 'contracted while they are trustees; provided said debts are payable one year from the time they shall have been contracted; and provided a suit for the collection of the same shall be brought within one year after the debt shall become due and payable.” The action was commenced within one year from the date of the note, but the complaint does not specifically state when the debt, for which the note was given, was contracted, and because of the omission the defendant-respondent demurred thereto for insufficiency. At special term the demurrer was sustained. '

On behalf of the defendant-respondent it is contended that the note is but evidence of a debt, and that, because of the omission to state when the debt was contracted, or that the debt was contracted within the year immediately preceding the commencement of the action, the complaint is defective, it not appearing therefrom that the debt is one for which the trustee is made liable. "We accede to the proposition that the note is evidence merely of a debt, but in the absence of an allegation from which it will appear that the debt, of which the note is evidence, was contracted at a time anterior to the note, it must be assumed that the debt was contracted simultaneously with the giving of the note. No presumption is allowable that the note- was given for an antecedent debt In this aspect of the complaint the facts predicatory to a sufficient cause of action are apparent. It remains for the defendant-respondent, if he intends to avail himself of the defense, to interpose the objections that the action was not brought within one year after the debt, was due and payable, or that the debt was not payable one year from the time it was contracted, by answer. The point was ruled in Metzger v. Carr et al., 61 St. Rep. 14.

The judgment of the special term is reversed, and the demurrer overruled. Defendant should have leave to answer upon payment of costs of the demurrer and of this appeal.

Bookstaver, P. J., and Pryor, J., concur.


text:
    William Frankfurter, Resp’t, v. The Home Insurance Company, App’lt.

      (New York Common Pleas, General Term,

      Filed November 7, 1894.)

    1. ^leadings—Amendment.'
    The trial court may direct an amendment of the complaint by increasing - the amount for which judgment was demanded.
    2. Same.
    It may, after verdict, add an allegation to the effect that, before the commencement of the action, more than sixty days had elapsed since service upon defendant of proofs of loss, where such fact' had been proved without objection.

      3. Appeal—Evidence.
    Upon appeal from the city court, the common pleas cannot inquire into the weight of the evidence.
    4. Same—What revibwable.
    In absence of a request for submission to the jury of some specific question of fact, exceptions to the denial of a motion for a dismissal of the complaint, and to the direction of a verdict for the plaintiff, authorizes a review of the proceedings on the trial only to ascertain whether there was evidence sufficient to support the recovery.
    5. Insurance—Other insurance.
    A policy, containing a clause against other insurance, is effectually avoided by subsequent insurance without the written approval of the company, or its authorized agent, though the latter has orally consented.
    6. Same—Waiver.
    No waiver can result from the acts of an agent which are in excess of his authority, where such lack of authority is known to the insured at the time.
    Appeal from a judgment of'the general term of the city court of New York which affirmed a judgment for the plaintiff rendered upon a verdict directed in his favor.
    Action by the assignee of the insured to recover upon a policy of fire insurance; the defense being that by its terms the policy was avoided owing to subsequent insurance effected by the insured without the written consent of the defendant, or' its authorized agent, indorsed on or attached to the policy. .

      Richards & Heald (George Richards, of counsel), for app’lt; David Leveniriit, for resp’t.
   Bischoff, J.

The trial court was authorized to direct an amendment of the complaint by increasing the amount for which judgment was demanded, Knapp v. Roche, 62 N. Y. 614; Baylie’s Gode Pleading, 625, and cases there cited; and to direct a further amendment, after verdict, by adding an allegation to the effect that before the commencement of the action more than sixty days had elapsed since service upon the defendant of proofs of loss, the fact having been proved without objection, and the cause of action remaining unchanged. Code Civ. Pro., § 721; Davis v. N. Y., L. E. & W. R. R. Co., 110 N. Y. 646; 17 St. Rep. 172; Knapp v. Simon, 96 N. Y. 284; Reeder et al. v. Sayre, 70 N. Y. 180. Upon appeal from the city court of New York we may not inquire into the weight of the evidence, Gundlin v. The Hamburg-American Packet Co., 8 Misc. Rep. 291; 59 St. Rep. 208; Kujek v. Goldman, 59 id. 543; 29 N. Y. Supp. 294; and, without a request for submission to the jury of some specific question of fact, the defendant’s exceptions taken to the denial of its motion for dismissal of the complaint, and to the direction of a verdict «for the plaintiff, authorize our review of the proceedings on the trial only to ascertain whether or not there was anv evidence sufficient to support the recovery. Stirn v. Hoffman House Co., 8 Misc. R. 246; 59 St. Rep. 229, and cases there cited. The only substantive question, therefore, which is presented upon this appeal, is the one which relates to the defendant’s alleged waiver of its right to treat the policy in suit as avoided.

The policy contained the following: “ This entire policy, unless otherwise pro vided by agreement indorsed hereon or added hereto, shall be void if the insured now has or hereafter shall make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy ; * * * ”•

It appeared in evidence, from, the testimony of the insured, that subsequent to the issuance of the policy in suit he did effect other insurance, upon property wholly covered by the defendant’s policy, to the amount of fifteen hundred dollars, without having secured the written approval of the defendant to such insurance. It was specifically ruled in Baumgartel v. Providence Washington Ins. Co., 136 N. Y 547; 50 St. Rep. 19, with reference to a policy containing the same provision which is hereinbefore set forth, that the policy was effectually avoided by subsequent insurance without the written approval of the insurer, or its authorized agent, though the latter had orally assented. To pursue the inquiry, therefore, would involve a labor of mere supererogation. The fact that the plaintiff’s assignor, the insured, when the policy in suit was issued, informed the defendant’s agent of his intention to effect further insurance, to which the agent' orally assented, cannot change the result for the reasons hereinafter stated with regard to the insured’s knowledge of the agent’s limited authority in the matter; and the case is plainly distinguishable from a class of cases referred to by counsel, in which it was held that knowledge of the insurer, or of its agent, at the time of the issuance of the policy, of existing facts, contrary to .the terms and conditions of the policy, will estop the insurer from availing itself of a forfeiture because of those facts. Knowles v. The American Ins. Co., 66 Hun, 220; 49 St. Rep. 7; affirmed, 142 N. Y. 641; 60 St. Rep. 866.

Nor do we accede to the proposition of the learned counsel for the respondent that a waiver resulted from the agent’s apparent oral recognition, after the loss had taken place, of the continued vitality of the policy with knowledge of the facts constituting the forfeiture.

Brody, a witness'for the plaintiff, testified that on the day succeeding the fire, Joerns, the defendant’s agent, admitted his knowledge of the fact of subsequent insurance, and stated that, because of it, he regarded the policy in suit as avoided. From the insured’s testimony it appeared that, after his interview with Brody, Joerns directed the insured to cause the property insured to be examined, and his proofs of loss to be prepared ; and that, acting upon such oral direction, he incurred expense in the examination of the property, and the preparation of proofs. Of the facts thus in evidence the waiver is sought to be predicated.

The policy in suit, however, further provided that no officer, agent or other representative of this company, shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon, or added hereto, and as to such provisions and conditions, no officer, agent, or representative shall have such power, or be deemed, or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed, by the insured unless so written or attached.” Indisputably, in the case at bar the agent’s authority was restricted to waivers in writing indorsed on or attached to the policy, and of this restriction the insured had, or must be presumed to have had notice.

In support of his proposition the respondent’s counsel relies upon Pechner v. Phœnix Ins. Co., 65 N. Y. 195, and Titus v. Glens Falls Ins. Co., 81 N. Y. 410, cases which are to the effect, as claimed, that an agent may orally waive the forfeiture notwithstanding that the policy requires the waiver to be in writing; but it should be observed that .in both of the cases the court had reference to the powers of an agent whose authority was general, or apparently general, and of whose restrictive authority the insured did not have notice. In the case at bar, however, the agent’s authority was restricted as already stated. It is not distinguishable, therefore, from the cases, which are to the effect, that no waiver can result- from the acts of an agent which are in excess of his authority, and where such lack of authority is known to the insured at the time. Hill v. London Assn. Corp., 16 Daly, 120; 30 St. Rep. 539; Quinlan v. Providence W. Ins. Co., 133 N. Y. 356; 45 St. Rep. 200; Moore et al. v. Hanover F. Ins. Co., 141 N. Y. 219; 56 St. Rep. 801.

Our conclusion from the foregoing is that the exceptions which were taken to the ref-usal of the trial court to dismiss the complaint, and to its direction of a verdict for the plaintiff, present error for which the judgment must be reversed.

Judgments of the general and trial term of the court below reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.


text:
    Henry Gimpel, Resp’t, v. Peter K. Wilson et al., App’lts.

      (New York Common Pleas, General Term,

      Filed November 7, 1894.)

    1. -Partnership—Accounting.
    Tie method of ascertaining the profits, adopted upon the trial of this case, was held to be erroneous.
    2. Same—Judgment.
    # A judgment, upon a firm accounting, which fails to adjudge the respective liability of the defendants, but gives to the plaintiff a remedy jointly against them for the full amount of his claim, is improper.
    Appeal from a judgment entered upon the report of a referee. Action for a copartnership accounting, the copartnership being admitted, and the issue being confined to the amount, of the plaintiff’s share.

      William, R. Wilder, for app’lts; Blumensteil & Hirsch, for resp’t.
   Bischoff, J.

The account as stated between the plaintiff and the defendants, according to the finding of the referee, for the purpose of sustaining the.judgment in this action, can find justification upon the evidence in but one aspect of the case, the aspect conceded by the parties to have obtained; and in this view the judgment rests upon an unjustifiable method of computation.

It being found that the plaintiff was entitled to one-eighth of the net profits of the business, according to the oral agreement proven, and that this amount was to be computed upon profits accruing between the first day of January, 1889, and the first day of January, 1891, the referee proceeded to compute the amount of these profits upon the basis formed by statements as to the state of the assets of the firm at successive periods of six months between those dates. It appeared that the stock on hand, which formed the major portion of the assets, had been taken, during all periods except that for the last six months, at an increase of thirty-three and one-third per cent., this denoting the difference between the cost and the selling price, and the referee, therefore, translated the cost price, as shown for the last period, into the selling prjice, by adding thirty-three and one-third per cent., and upon this basis computed the plaintiff’s share, less his drawings.

The amount of stock on hand appears to have increased largely during the periods considered and the judgment for the plaintiff is founded, in amount, ugon the increase of assets as shown during the time of his partnership.

The vice of this method of computation, for the purpose of determining the profits of the business, is apparent.

The percentage, arbitrarily added by the defendants to the cost price in order to reach the selling price, is in no way claimed to represent profits, and indeed the evidence shows that such was not the fact. It obviously represented an amount made up of firm expense and firm profit on the sale of the goods, and the plaintiff’s recovery is hence unduly enhanced by the disproportion between the relative expenses and profits upon the goods on hand at the commencement of his partnership and the corresponding relation upon the greater amount of stock as taken at the time of his withdrawal.

In other words, the plaintiff was awarded, as profit, some undetermined amount which did not represent an increase of assets over expenditures and the record discloses no trace of an agreement which would justify a computation upon the basis considered.

The judgment is open to the further objection that it fails to adjudge the respective liability of the defendants and gives to the plaintiff a remedy jointly against them for the full amount of his claim. Bates on Partnership, § 455, and cases cited; Williams v. Lindblom, 68 Hun, 173; 52 St. Rep. 78.

Our conclusion renders discussion of the further points raised by the appellants unnecessary, since a new trial must result.

Judgment ' reversed, reference discharged, and new trial ordered, with costs to abide the event.

All concur.


text:
    James J. Jones, Resp’t, v. Jacob Wick, Jr., App’lt.

      (New York Common Pleas, General Term,

      Filed November 7, 1894.)

    1. Real property—Abandonment.
    A simple contract to excavate does not, as matter' of law, imply a transfer of title to materials of value, removed in the performance of its requirements.
    2. Same. *
    The question whether title may be held to have, or not have, passed by abandonment in any case, turns fundamentally upon the fact of an intent to so abandon upon the part of the original owner.
    Appeal from a judgment entered upon the report of a referee.

      Albert Zimmerman (Charles Qoldzier, of counsel), for app’lt; Daniel Daly, for respt.
   Bischoff, J.

To an action upon a contract for the excavation of a certain area of ground, and for the supplying of sand and stone to be used in the building erected upon the land so excavated, the defendant sat up a counterclaim for the value of the sand for which he had been charged by the plaintiff in the course of their transactions, and which, it was claimed, had been taken from the former’s ground as a part of the* soil excavated.

Although some evidence was given by which it was sought to prove a custom governing such contracts as that in suit, the rulings of the referee, both before and after this testimony was adduced, upon questions calculated to show that the building sand supplied and charged for by the plaintiff came from the defendant’s soil, proceeded upon a strict assumption that the title to all material excavated- passed to the plaintiff and that no claim for its value, or for any recovery of- the amount paid to the plaintiff therefor, could be entertained, and the question thus raised is amply presented by the exceptions taken.

The evidence of custom alluded to was given solely by the witness Gfent, and is of no value in support of these rulings or’of the final determination, since it is found to be so inconsistent with.itself and so directly contradictory as to be unintelligible in any aspect. Such is the character of this testimony that that part of it which appears within the same folio in the printed case is relied upon, and with reason, by the respective parties in support of their contention as to facts which are in hopeless opposition. At best, however, this testimony tends merely to show that under certain accepted conditions contracts are differently made with regard to such matters as those in suit, and fails to establish any usage in this regard. Moreover, it appears that the evidence note ddid not enter into the considerations of the learned referee, even if any weight were to be accorded it, for the position taken by him in ruling upon evidence offered by the defendant in support, of the counterclaim is defined in the following language: “You can raise, your questions of law by a series of* questions on the sand, but I shall hold it immaterial that you cannot recover for any sand that he took^out. I shall hold as a general proposition that the defendant cannot counterclaim for the value o£ any sand taken out by the plaintiff within the limits of his contract.”

In so far as it touches this subject, the contract as shown by the evidence was simply for making excavations upon the defendant’s land, and no provisions for the disposal of the soil removed in the course of the work was shown to have been made.

We are unable to agree with the learned referee that the contract to excavate implied a transfer of title to materials of value removed in the performance of its requirements as a matter of law, for this would involve a determination that, under the agreement proven, an abandonment to the plaintiff of. these materials had resulted and as a matter strictly of law it cannot be held that such was the result upon the record before us.

The question whether or not title may be held to have passed by abandonment in any case, turns fundamentally upon the fact of an intent to so abandon upon the part of the original owner, Wyman v. Hurlburt, 40 Am. Dec. 464; note and cases cited; Lacustrine Fert. Co. v. Lake Guano, etc., Co., 82 N. Y. 476, and this question becomes one of law only where the evidence with regard to such fact is conclusive (Id).

The rulings of the referee in the case at bar, concluded the question of title against the defendant, and this in the absence of any evidence as to an intent on his part to abandon the chattels in question to the plaintiff and upon the assumption that further proof was immaterial. This evidence might indeed have been furnished by proof of some established custom of trade in the light of which the -contract in suit could have been construed, Marine Nat. Bank v. Nat. City Bank, 59 N. Y. 67; 17 Am. Rep. 305; Eager v. Ins. Co., 14 Pick, 141; 25 Am. Dec. 363; Thompson v. Hamilton, 12 Pick. 425; 23 Am. Dec. 619; Clark v. Baker, 11 Metcalf, 186; 45 Am. Dec. 199; S. W. F. Co. v. Cotton, etc., Co., 44 Mo. 71; 100 Am. 255; Farnsworth v. Chase, 19 N. H. 534; 51 Am. Dec. 206; Sampson v. Gazzon, 6 Porter, 123; 30 Am. Dec. 578, but standing alone, as it does, the agreement shown by the evidence fails to afford that proof which is essential to any support of the rulings made.

The question raised as to the plaintiff’s second cause, of action does not call for special consideration, since for the error noted a reversal of the entire judgment must result. Canavan v. Stuyvesant, 7 Misc. Rep. 113; 57 St. Rep. 513.

Judgment reversed, reference discharged and new trial ordered with costs to abide the event All concur.


author: CriEGERicií, J.

text:
    Annie M. Sadler, Pl’ff, v. Dore Lyon et al., Def’ts.

      (New York Common Pleas, Special Term,

      Filed November 12, 1894.)

    Referee—Fees—Mortgage foreclosure.
    A referee, appointed to sell in an action of foreclosure, is not entitled to double fees, because two mortgages are foreclosed in and by the action.
    Motion arising on exceptions to referee’s report of .sale, and to direct said referee to pay over to plaintiff’s attorney the sum of fifty dollars, being part of the amount retained by him and claimed as being properly chargeable as part of his fees herein.

      Thomas G. Snnever, for pl’ff and motion; W Watson, referee, opposed.
   CriEGERicií, J.

This action was brought to foreclose two mortgages upon, adjoining pieces of property, which were made by the defendants Dore Lyon and wife to- the plaintiff. There was one complaint wherein two causes of action are set forth. There was but one judgment of foreclosure and sale, granted and entered, and William JVatson was appointed referee to sell the property. There was only one advertisement of sale, and the property was sold in separate parcels as required by law,—■ the same having been purchased by the plaintiff, who subsequently took title to said property. The referee claims that he is entitled to $110 and disbursements, in other words, to double fees, because there were two mortgages foreclosed in and by the action. Plaintiffs counsel, on the other hand, contends that the referee is not entitled to more than sixty dollars in any event. Exceptions to the referee’s report of sale having been filed, the matter is now brought up on a motion to compel the referee to pay over fifty dollars as having been improperly retained by him.

The referee argues that the holder of two mortgages on separate parcels of land cannot foreclose both of them in one action, and that “ the plaintiff having had the benefit of two foreclosures in one action- by violating law, cannot be heard to say that the two foreclosures are one action.” Section 3297 of the Code of Civil Procedure provides, that “ the fees of a referee appointed to sell real property, pursuant to a judgment in an action, are the same as those allowed to the sheriff and he is allo.wed the same disbursements as the sheriff; ” and further provides, that “a referee’s compensation, including commissions, cannot, where the sale is under a judgment in an action to foreclose a mortgage, exceed fifty dollars.”

The-sheriff’s fees in cases of sales on foreclosure are fixed by statute (Laws of 1869, chap. 569, § 2), as follows : “ For receiving order of sale and’posting notices of sale, ten dollars; for attending sale, ten dollars; for drawing each deed of premises sold, five dollars; for attending and adjourning a-sale at the request of the plaintiff in the action or by order of the court, three dollars, but no more than three such adjournments shall be charged for; for making report of sale, five dollars; for paying over surplus moneys, three dollars.”

The referee insists that the following language of said § 3297, viz.: “ Where the sale is under a judgment in an action to foreclose a mortgage,” evinces an intention on the part of the law making power to allow double fees where two mortgages are foreclosed in and by one and the same action. If this is so, then surely the argument advanced by the referee, that there was an-improper joinder of causes of action herein, is fallacious. But the question does not turn upon the right of the plaintiff to foreclose two mortgages in this action, as the objection, if one existed, has been waived by-the failure of the defendants to demur to the complaint. Code of Civ. Pro. § 499. The intention of the legislature in passing the provisions of § 3297, supra, relative to fifty dollars, was not to . increase, but merely to fix the maximum of fees. Schermerhorn v. Prouty, 80 N. Y. 317. Moreover, the words used in said section were merely intended to designate the character of the action. It follows that the referee is not entitled to double fees herein.

I am confirmed in these views by almost similar language employed in § 3252, relative to additional allowances; and by the provisions of the statute of 1869, relative to the charge for “ drawing each deed of premises sold,” which. indicates an intention to permit the sale of several pieces of property under one judgment of foreclosure and sale..

But assuming, for argument’s sake, that these views are founded in error, the referee’s fees are nevertheless assailable in the light of the above cited statute. Conceding that he is entitled to double fees he can charge only for the following services:

For receiving order of sale and posting notices.........$10 00

For attending sale................................. 10 00

For report of sale.................................. 5 00

Total......................................•.. $25 00

There having been no adjournment, and there being no surplus, he cannot make a charge therefor.

The referee cannot properly claim the fee for drawing a deed to the purchaser as that is chargeable to the grantee, Race v. Gilbert, 102 N. Y. 298; 1 St. Rep. 661; but as the plaintiff bid in the property the fee of five dollars for drawing each deed is allowed. This brings up the total amount to thirty dollars, and if the referee is allowed double fees, which I am not prepared to concede, he would not be entitled to more than sixty dollars.

Inasmuch as the referee has retained the sum of $110 for his fees, when, as has been shown, he is entitled at most to sixty dollars, the motion must therefore be granted.