author: Daniels, J.

text:
    William H. Dole and another, App’lts, v. Charles D. Belden, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887,)

    Evidence—Secondary—When admissible.
    Secondary or oral evidence of the contents of written instruments or papers, such as accounts, is not admissible until the notice shall have been given to procure the documents, the contents of which it may be material to prove, and the production of the same has been refused.

      Appeal from a judgment recovered on the report of a referee.

      H. Daily, Jr., for app’lts; Thomas G. Sherman, for resp’t.
   Daniels, J.

The action was brought to recover for the price of malt sold and delivered by the plaintiffs to the defendant, and for commissions on the sale of malt syrup, and also for freight and charges paid out by the plaintiffs for the defendant. The claim set forth in the complaint as the plaintiffs’ causes of action were not denied by the answer, but that stated a counter-claim exceeding the amount of the plaintiffs’ demands. It was placed upon an alleged guaranty by which for a commission the plaintiffs were stated to have guaranteed the payment of the price of so much of the syrup as should be sold and delivered to' them, or in compliance with their orders.

The litigation in the action, as the reply denied the answer, depended wholly upon the evidence relating to the contract mentioned in the answer, and the quantity of syrup which had been delivered under it. It was not delivered wholly to the plaintiffs themselves, but in great part to other persons under orders alleged to have been received from them, by the defendant. How much as a matter of fact was so delivered in this manner to other persons was not directly proved, either by the evidence of the defendant, or of the other persons who were in his employment, and-this was a closely controverted feature of the litigation. Neither Noble, who was in charge of the defendant’s business, nor the defendant himself, could state to whom the syrup had been sent for which it was designed to charge the plaintiffs with liability for the price. An account was found at page 104 of the defendant’s ledger, which was relied upon as the statement of the shipments and sales, but this account was not proven so as to entitle it to be read in evidence against the plaintiffs, otherwise than by evidence that one of them looked over the book and substantially assented to the correctness of the entries contained on this page. That was, however, denied, and evidence was given tending to establish the fact that this page did not contain the account of the business transactions of the defendant, as they had taken place. And it appeared that it was made up from other entries, in part, on leaves which had been taken from the book containing them. It was, however, stated that the entries had been correctly transcribed, and if they had, then those which were produced on the trial were entitled to have the same effect that they would have had if they had been the first entries made of these articles. But this evidence of the examination and substantial assent to the account appearing upon the book was so sharply controverted on the part of the plaintiffs, that the referee might very well have finally considered the account not to have been proven, and for that reason to reject it as evidence in the' case. It certainly was in no sense decisive as against the plaintiffs, and for the purpose of further proving the correctness of the charges, evidence was offered to prove that accounts of the articles delivered had been transferred from the defendant to the plaintiffs. This was objected to by them on the ground that parole evidence could not be given of the contents of these papers, and'that they were themselves the best evidence, or at least that copies of them should be made the subject of proof. This was overruled by the referee, and to his decision the plaintiffs excepted. Under this ruling evidence was received from the defendant’s witness Noble, stating that accounts had been rendered to the plaintiffs of the defendant’s transactions under the alleged contract with them, including deliveries of syrup from the eighth of March, 1881, until the twelfth of the following month of December, and in that manner tending directly to establish the charges made by the defendant against the plaintiffs for the syrup alleged to have been delivered pursuant to their agreement. This evidence violated a very plain rule of law, requiring the contents of written instruments to be established by the instruments themselves when they may be attainable upon the trial, and only allowing parole or secondary evidence, of such contents, after notice shall be given to the other party to produce the documents, the contents of which it may be material to prove.

The ruling of the referee has been justified by the defendant’s counsel upon the ground that Merrill, one of the plaintiffs, had in the course of his evidence been requested to produce his accounts and refused so to do. But what transpired between the defendant’s counsel and this party did not present such a refusal. The testimony which was obtained from this plaintiff related to letters which were asserted to have been received by the plaintiffs from the defendant, and not to accounts. During his examination Merrill had produced such letters and it was concerning the letters that he was interrogated. The question was asked: “When I asked you on your cross-examination to produce letters from Mr. Belden, you stated that you had none with you ? ”

A. “I did’nt have them, sir.”

Q. “How is it that you now produced them on your redirect .examination? ’ ’

A. “ They came into the room since.” .

Q. “Then, please, produethem?”

To this question the plaintiff’s counsel interposed and stated that the witness declined to produce the letters. The question was then asked: “Please, produce all letters, papers and accounts in any way relating to the matters in controversy in this action which you have at any time received from Charles D. Belden or Robert R. Noble.” The plaintiff’s counsel then directed the witness not to produce them and the witness made no answer. Then the question was asked: “Will you now produce those letters, some of which I see are on the table before us? ”

A. “Those have been produced and put in.”

Q. “ Will you produce those letters that now lie on the table?”

A. “ That is for my lawyer to do what he has a mind to with those.”

Q. “Have you any other letters from Charles D. Belden <or Robert R. Noble, than those now lying on the table ? ”

A. “Yes, sir.”

Q. “ Have you them present in this room ? ”

A. “I think some of them are—I know they are.”

This examination which there ended, it will be seen related wholly to the letters. Accounts were mentioned in one question, but there was no evidence given to prove that any one of the accounts afterwards stated to have been sent to the plaintiffs was in the possession of this witness, or in any manner present at the trial. And this examination for this reason did not open the way through which secondary evidence of the accounts themselves could be legally received by the referee. To have permitted such testimony to be taken it was at least necessary that it should have been made to appear that the witness Merrill, or the counsel, had these accounts in court or under their control, so that they could be produed in compliance with a request for their production, and that such a request was made by or on behalf of the defendant.

In this respect there was a complete omission of the necessary testimony. And as the evidence stood when it was proposed to prove that the accounts had been transmitted to the plaintiffs, the defendant was not in a condition to give evidence of their contents. If they had-been so transmitted and retained without objection, the fact would have been decisive evidence in favor of the defendant. For it might be inferred from it that the plaintiffs had assented to the correctness of the items stated in the accounts. But without proof that the plaintiffs had been given a reasonable notice to produce the accounts, or that they were present at the trial, the defendant was not in a condition to give the evidence which the referee concluded to, and actually did receive.

Accounts and letters which had been received by the plaintiffs from the defendant and Noble, were produced and.given in evidence during the cross-examination of Noble-himself, and so far as that was done the ruling of the referee was corrected, but they did not include all the accounts, the contents of which the referee allowed to be proved under his ruling, but they related only to a part of the sales made between June and December, 1881, while, under the ruling of the referee, sales made in the preceding month of April were allowed to be maintained by proof of transmitted accounts. As to those sales, or deliveries, the evidence subsequently given in the case did not correct this, ruling of the referee, for it did not include them.

This evidence had a material bearing upon the controversy between these parties and it related to charges which were probably allowed by the referee to the defendant in the final disposition of the case. There were also other charges made by the defendant against the plaintiff in the latter part of the year included in the evidence received by the referee, for which neither accounts nor letters were produced during the subsequent progress of the trial.

The ruling of the referee, excluding an answer to the question for what the sum of $500, paid by the defendant in September, 1881, had been paid, was finally corrected by the witness stating that it was on malt delivered in July, 1881. As to that there is no difficulty in the case.

The defendant testified that he knew of his own knowledge that bills for all the syrup charged for in the bill of particulars in the month of July, had been made out and were in Mr. Merrill’s possession. He was thereupon asked, “Was there anything upon those bills, that you remember, which would indicate to whom that syrup was shipped or by whom it was received ? ” This was objected to as attempting to prove a written instrument, and the objection was sustained and the plaintiffs excepted. How the referee-could consistently exclude this proof, when proof of the bills themselves had been received, seems to be unaccountable. If the evidence of the defendant concerning the bills, was to be of the slightest weight in the case, the plaintiffs, had the right to interrogate the witness as to their contents.

But without pursuing this subject any further it is sufficient to say that oral evidence of the contents of the bills, which were not afterwards produced during the trial, was. erroneously received. And as this related to the-important and contested part of the litigation, the error can be no-otherwise corrected than by reversing the judgment and directing a new trial, with costs to the appellant to abide the event before another referee.

Van Brunt, P. J., and Brady, J., concur.


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    Simeon E. Church, App’lt, v. Daniel N. Stanton, Impleaded, etc., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    Pleading—Complaint—When moke than one cause of action stated —Joinder of causes of action.
    The complaint alleged the incorporation of a certain railroad with authority to issue certain mortgage bonds, which were issued, the foreclosure of the mortgage and the appointment of receivers, who were authorized to issue certificates of indebtedness, which were declared to be a first lien on the railroad, etc., which certificates were issued. That Stanton, claiming to be the owner of certain of said certificates, sold and delivered to the plaintiff seven of the certificates. That at the time of the sale Stanton made false representation to the plaintiff as to the regularity and validity of the certificates, with the intent of defrauding plaintiff. The complaint, further alleged the sale of the road under a decree in the foreclosure suit, and that it was bought in at the instance and for the benefit of Stanton. That Stanton afterward sold it to one Swann, and out of the price he' agreed to pay and discharge all claims of every character held against said road by himself and certain others. That his claim was understood to embrace the seven bonds of plaintiff. That the defendant’s knowing that the said certificates were out of the hands of Stanton, wrongfully and by collusion with Stanton, to defraud the holder of said certificates, paid over to him certain bonds held to secure the payment of said certificates, without Stanton’s producing or being able to produce the same. The complaint then alleges the value of the bonds, and that by several orders of the court made in the action masters were appointed to take proof of the consideration and validity of the several receivers’ certificates which had been' issued, including those which had been held by Stanton. That Stanton, c lluding with said Swann, failed to appear and make such proof. That six of said certificates with the coupons thereon, remained wholly due and unpaid, and were still held and owned by the plaintiff. That Stanton had refused to pay the value of the certificates or any part thereof. That the payment of said bonds to said Stanton by said Swann and the railroad company was wholly void as against plaintiff, and that the receiving of the same by said Stanton was fraudulent as to the plaintiff, and that said Stanton held the same in trust for the plaintiff. Judgment was demanded first against each of said defendants, for the full amount of said six certificates and the coupons attached; second, that the defendant Stanton be adjudged to have received bonds from the railroad company in trust to satisfy the claims of the plaintiff, and that they belong to the plaintiff, and that he be adjudged to pay the same, or the value thereof, to the plaintiff. Held, on demurrer, that there was an improper joinder of causes of action. That there was one cause of action affecting all the defendants and another affecting Stanton alone. That the last cause of action is independent of the first. That the complaint also contains allegations setting up a complete cause of action against Stanton alone upon the ground of fraudulent representations.
    Appeal from order and judgment sustaining defendants demurrer to the plaintiff’s complaint.

      8. E. Church, app’lt in person.; Alexander Ash, for resp’t.
   Van Brunt, P. J.

The ground of the demurrer interposed to the plaintiff’s complaint herein was that several causes of action which were inconsistent with each other and did not effect all the parties defendant had been improperly united.

In consideration of the question raised by this demurrer it will be necessary to consider the allegations of the plaintiff and also the prayer for relief therein contained.

It is urged upon the part of the plaintiff that there is but one cause of action, that it is an equitable action, that it affects all the parties although it may affect them very unequally, and that most of the allegations contained in the complaint are simply a history of the events leading up to the cause of action set out in the complaint.

The complaint alleges the incorporation of the Alabama and Chattenooga Railroad Company; that the company was authorized to issue and did issue mortgage bonds 'in •aid of the construction of the road; that the company made default in the payment of interest on or about the year 1872 and the trustees of the mortgage commenced an action to foreclose such mortgage and receivers of the road were appointed; that these receivers were authorized to issue certificates of indebtedness to the amount of $1,200,000, which were declared to be a first lien on the railroad and its property; that the receivers issued such certificates; that on or about the first of April, 1875, Stanton claimed to be the owner of forty of the certificates known as the Spielman certificates; that at said time Stanton claiming to be the owner sold and delivered to the plaintiff seven of the certificates; that at the time of the sale Stanton represented to the plaintiff that the certificates were duly issued, were regular, that he had good right to sell the same and that they were amply secured; that the purchase of the certificates was made by the plaintiff in good faith without any knowledge or suspicion of any kind of defect therein; that in fact the certificates were not regularly issued; that Stanton had not paid any lawful consideration to the receivers therefor; that they were not valued securities in Stanton’s hands and that his representations in that regard made to the plaintiff were made to induce the plaintiff to take the same and were falsely and fraudulently made with intent to urge and defraud the plaintiff.

The complaint alleges further that under a decree of fore-closure in said foreclosure suit, the road was sold and bought in at the instanbe and for the benefit of Stanton, and that he paid on account $30,000 ; that Stanton sold his bid in March, 1877, to the defendant, John Swann, who agreed to pay said Stanton as part consideration of said purchase $250,000, and to deliver to him 430 first mortgage bonds, of $1,000 each, to be issued by a new company to be formed upon said road, and that with said money and bonds Stanton agreed to pay, settle and discharge all claims of every character held against said road by himself and five other parties named therein ; and that the claim of said Stanton therein embraced, was understood to include the seven certificates sold to the plaintiff; that thereupon a new company was organized under the name of the Alabama and Great Southern Eailroad Company, and Swami transferred to said company all his right and interests acquired by said purchase, and said new company assumed all his obligations incurred therein; that in June, 1877, the said new bonds not having been issued, the defendants Swann and Stanton made a further agreement whereby the number of new bonds to be delivered was reduced from 430 to 285, and the number of claims which Stanton was to satisfy and discharge out of them was reduced to three, being the claims of himself and two other persons, Stanton’s claim still embracing the plaintiff’s certificates ; that Swann afterwards paid to Stanton the said 285 bonds, except 85, and by agreement Swann retained in his hands the 85 bonds, and agreed to pay and deliver the same to Stanton in payment and satisfaction of his claim against said road ; that said Stanton exhibited his claim against the road to be paid out of said bonds, and the same embraced the plaintiff’s certificate, and Swann and the railroad company then well knew that the said certificates were a part of the claim to be paid out of said bonds ; that afterwards in December, 1877, Swann and the company paid over to Stanton 63 out of the 85 bonds, leaving unpaid and unsatisfied the six certificates belonging to the plaintiff among others; that the defendants then well knew that said certificates were out of the hands of Stanton, and that they retained the balance of said bonds until Stanton should be able to obtain and deliver them ; and that said defendants with such knowledge, on the 3d day of May, 1879, wrongfully, and by collusion with Stanton, to defraud the holder of said certificates paid over to him the balance of said bonds, without requiring or taking up said certificates and without Stanton’s producing or being able to produce the same.

The complaint then alleges the value of the bonds, and that by several orders of the court made in the action. Masters were appointed to take proof of the consideration and validity of the several receiver’s certificates which had been issued, including those held by Stanton; that on the hearing before the first of said masters Stanton appeared and proved the Spielman certificates, including the plaintiffs, but the masters report was excepted to, and rejected by the court as to the Spielman, certificates; that new orders of reference were granted in July, 1875, when Stanton again appeared and made proof, and the masters report as to the Spielman certificates was again excepted to and rejected by the court; that three successive orders of reference was subsequently made by the court to masters to-take proof of said certificates, and Stanton was duly notified by the plaintiff and by the master to attend and make-such proof, and had ample opportunity so to do, but colluding with said Swann and the said railroad company to-defraud and injure the plaintiff, said Stanton refused to appear and make such proof, or furnish any evidence of the-regularity and validity of said certificates, at either of said-references, and no such proof was given, and the said certificates have never been allowed by the court; that Stanton subsequently purchased, back from the plaintiff one of said seven certificates, but the six remaining certificates with the coupons thereon remain wholly due and unpaid, and are still held and owned by the plaintiff; that the plaintiff has duly demanded from the said D. N. Stanton, the bonds so-paid to him by said Swann and the said railroad company, or the value thereof, but said Stanton refuses to deliver or pay the same, or any part thereof, and the plaintiff charges that the payment of said bonds to said Stanton by said Swann and the railroad company, was wholly void as against the plaintiff, that the receiving of the same by said Stanton was fraudulent as to the plaintiff, and that said Stanton held, and holds the same in trust for the plaintiff.

And judgment is demanded, first, against each of said defendants, for the full amount of said six certificates, and the coupons attached, to wit, for $6,000 principal, and the principal and interest upon each of said coupons, of eight per cent; semi-annually, from March 1, 1873, according to the terms of said certificates, and the coupons attached thereto.

Second. That the defendant, D. N. Stanton, be adjudged to have received said twenty-two bonds of the Alabama and Great Southern Railroad Company, in trust to satisfy the claims of the plaintiff, and that they belong to the plaintiff, and that he be adjudged to pay the same or the value thereof, to the plaintiff.

It seems to be apparent, taking'the prayer for judgment as the guide to the relief which the plaintiff claims to be entitled to by virtue of the allegations in his complaint, that there is one cause of action affecting all the defendants, and another affecting' Stanton alone. The first-claim for relief is founded upon an allegation of a conspiracy entered into by all the defendants to defraud the plaintiff out of his certificates and damages are claimed against each and all of said defendants. The second ground of relief is based upon a claim against Stanton individually, in which neither of the other defendants have any interest, viz., that Stanton knowing the plaintiff’s right to these certificates received the bonds of the railroad company in trust to satisfy the claim of the plaintiff and that he is bound to account to the plaintiff therefor.

The last cause of action seems to be entirely independent of the first. It involves only the defendant Stanton and claims no relief against anybody else, and is entirely consistent with the. absence of all complaint against the defendant Swann and the railroad company.

There are allegations in the complaint which justify these separate demands of relief against Stanton, and it seems to be upon these allegations that this second prayer for relief is founded. The above defendants having no interest in this cause of action, it was error to unite the same with a cause of action in which all of the defendants may have been interested.

The complaint also contains allegations setting up a complete cause of action against Stanton alone upon the ground of fraudulent representations. Allegations are made as to representations made by Stanton to induce the plaintiff to buy these certificates; that Stanton knew that these allegations were false; that they were fraudulently made with intent to injure and defraud the plaintiff, and that the certificates were purchased by the plaintiff from Stanton in full belief of the verity of those allegations. This cause of action is one in which the other defendants have no interest, are not affected thereby, and upon proof of which the plaintiff would have a right to recover against the defendant Stanton and Stanton alone.

Whether there are other causes of action contained in the complaint as claimed by the defendants, it is not material to consider, because it appearing that the causes of action did not affect all the parties to the action, but that some of the defendants have no interest, whatever, in or are not attempted to be affected by some of the causes of action alleged in the complaint, the demurrer, therefore, is well taken. Nichols v. Drew, 94 N. Y., 22. Although it has been strenuously argued upon the part of the plaintiff that but one cause of action is set out in the complaint which affects all the parties, although very unequally, we have been unable to come to that conclusion.

The judgment appealed from must be affirmed, with costs.

Daniels and Beady, JJ., concur.


text:
    In the Matter of the Application of Erastus H. Munson and others for the appointment of commissioners, etc.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887).

    1. Streets—Lots sold bounded by streets laid out—Purchasers acquire easement in land designated as such—Laws 1871, chap. 628— Laws 1877, chap. 444.
    Under authority created by Laws 1871, chap. 628, the hoard of the department cf public parks in the city of New York, and the major-general commanding the first division of the National Guard of the state oí New York, selected a parcél of land in New York city for a parade ground, and filed the map mentioned in the act for that purpose. After the filing of this map proceedings were taken in compliance with the provisions of the act for the acquirement of the title to the property. Tnese proceedings were, however, subsequently voluntarily discontinued. By Laws 1877, chap. 444, the appointment of commissioners was authorized to determine the claims of the owners of the land selected as the site of the parade ground for damages arising from its ^election for that purpose and the subsequent discontinuance of the proceedings. Seld, that the owners of this land having acquired title to it as lots bounded by streets laid out, had an easement in such parts designated as streets for their use and enjoyment as such.
    2. Same—Land designated as such may be appropriated by public eor THAT PURPOSE ON NOMINAL COMPENSATION.

      Seld, That while the land so designated as streets did not thereby become public streets, it was liable to appropriation as such by the public authorities for a nominal compensation.
    8. Commissioners appointed under Laws 1877. chap. 444—Estimate of DAMAGES.

      Seld, That the property selected as the site of the parade ground having existed as lots hounded upon streets laid out fr.-m a time anterior to the proceedings taken to condemn it for that purpose, the commissioners appointed under Laws 1877, chap. 444, in estimating the claims of the owners for damages, wrongfully considered it as farming land; that it was entitled to consideration as land laid out in lots.

      4. Same—Not aeeected by what.

      Seld, That the fact that the streets laid out in 1884 by the public authorities on such land did not coincide with those originally designated, formed no obstacle to the claims presented by the owners. That they were created and arose out of facts, which had transpired when the act of 1877 was enacted, and it was upon those facts as they were then consummated and appended that the commissioners were to proceed and make their award.
    5. Same—Authority to admit new parties to proceedings.
    During the hearing the commissioners allowed others not originally parties to the hearing to become such. Seld, that the authority to allow such parties to join in the proceedings was not withheld from the commissioners by the act of 1877, and that there being no such restriction, it was but equitable and just that they should be allowed to be added as parties. That such privilege would have been granted on application to the court, and that the commissioners not having exceeded the authority which the court would have exercised, their action must he approved.
    Appeal by the mayor, etc., and others from an order confirming the report of commissioners estimating and determining the claims of the applicants for damages and compensation to be paid on account of the discontinuance of proceedings to acquire the title to lands for a military parade ground, and adjusting their compensation.

      Arthur H. Masten, for appTt; John C. Shaw, for resp’ts..
   Daniels, J.

Under the authority created by chapter 628 of the Laws of 1871, the board of the department of public parks in the city of New York, and the major-general commanding the first division of the National guard of the state of New York, selected a parcel of land easterly of Broadway, and bounded in part by the Harlem river, for a parade ground, and in 1873 filed the map mentioned in the act for that purpose. And it was provided by section 2 of the act that from and after the time of the filing of the map the public square or place, and the streets and avenues bounding the same, should become and be one of the public squares or places, and public streets and avenues, in the city of New York, with the same intent and effect as if it had been laid out and established by the commissioners appointed in and by the act entitled an act relative to improvements touching the laying out of streets and roads in the city of New York, and for other purposes, passed April 3, 1807. And it was further provided that the streets and avenues laid out within the limits of the public square, or place so laid out, at the time of the passage of the act, should from thenceforth become abandoned and closed. After the filing of this map proceedings were taken in compliance with the provisions of the act for the acquirement of the title to the property, but they were never completed, but on the other hand they were voluntarily discontinued. That discontinuance was resisted by the persons owning the property proposed to be taken, but their resistance was held to be unavailing, when it was finally considered and passed upon, by the courts. Matter of Department of Public Parks, etc., 48 How., 285.

But after this discontinuance had become effectual, chap. 444 of the Laws of 1877 was enacted, authorizing the appointment of commissioners to determine their claims for damages arising out of the location of this ground for a parade ground, and the subsequent discontinuance of the proceedings. In compliance with the directions contained in this act, three commissioners were appointed to hear and determine the claims made in favor of such claimants. They made several reports which were modified under the direction of the court, and finally set aside upon an appeal from an order of confirmation by the" general term. The rights of the claimants were on the last occasion fully considered and declared by the court. Matter of Munson, 29 Hun, 325.

That decision resulted in a direction to the commissioners to take Such further proofs as might be offered by any of the appellants or by the mayor, aldermen and commonalty of the city of New York, and to estimate and determine thereon the damages, if any, sustained by the several claimants herein, and whereby it was further ordered that in making such estimate and determination, we award and allow to the said several claimants the amount of the depreciation of their several parcels of land between the fifth of April, 1813, and the fifteenth day of June, 1811, first deducting, however, in ascertaining the value thereof on the fifth day of April, 1813, the amount, if any, by which the same had been increased in value by the designation thereof by the public authorities for a military parade ground, and from, the awards so made, deducting the sums heretofore allowed by us for taxes to such parties as have received the amounts so allowed. They proceeded to act under that direction and took further proof to enable them intelligently to do so, and then determined the compensation which should be made to the owners whose property was included within the map of the parade ground and the abutting streets. In their determination they reported that they had complied with the directions contained in the order of the court, and had awarded and allowed to the several claimants the several sums set opposite to their respective names in the said schedule, and have allowed to them the amount of the depreciation of their several parcels of land between the fifth day of April, 1813, and the fifteenth day of June, 1817. first deducting, however, in ascertaining the value thereof on the fifth day of April, 1813, the amount by which the same had been increased in value by the designation thereof by the public authorities for a military parade ground, and deducting also from .the amounts so estimated in favor of such parties as have received the sums heretofore allowed by us for taxes the respective sums so allowed .and received, the names of such parties being set forth in schedule B hereto annexed. In adjusting and determining the sums allowed, the commissioners proceeded upon the fact, which they deemed to be established, that the lands included in the map of the parade ground, had previously been divided into blocks and streets and conveyed to the claimants by deeds describing the lots in such blocks, and bounded upon the designated streets. This course of proceeding was objected to on the part of the city, and the commissioners were urged to consider and assess the claims of the different claimants upon the principle that no streets, or avenues, had been laid out over this ground, and that their compensation should be fixed upon the fact that it was merely farming land, as it then on the surface of the ground appeared to be. And to sustain the appeal it is urged on behalf of the city that the commissioners erred in failing to apply this principle to their estimates of the compensation to be made to the claimants.

But in support of the conclusion adopted by the commissioners and the principle which they applied, it was proved that the commissioners of public parks in the year 1869 made a map including this land, over which streets were proposed to be laid out by them under the authority of chapter 565, of the Laws of 1865, and adopted a resolution approving this map. But as the map was not certified, acknowledged and filed, as the act required that to be done to legally lay out the streets, it was held by the court in Matter of Munson (supra) that the proposed streets and avenues had never become fixed or established so as to constitute any part of the streets or avenues of the city. It further appeared that the Dyckman executors, to whose estate nearly all the land proposed to be taken for the parade ground had previously belonged, themselves made another map upon which they exhibited the same proposed streets and avenues, which appeared on the uncompleted map of the park commissioners, and after making that map they sold nearly all the land subject to their control with reference to the map, and in their deeds bounding the lots sold upon the streets and avenues so exhibited upon the property. This created an easement, in the purchasers by which they were entitled for the use and enjoyment of the lots they respectively purchased, to use so much of the lands as appeared by the maps to be designated for that purpose as streets and avenues. The division of the property and the sale of it in this manner entitled the purchasers to this right of user. This subject and the authorities bearing upon it, was considered in Matter of Sixty-seventh street (60 How., 264), and also in Matter of Eleventh Avenue (31 N. Y., 436), where it was held that purchasers of lots conveyed and bounded in this manner by the common owner, upon proposed streets or avenues were entitled afterwards to the use and enjoyment of such proposed streets and avenues for the convenient use and occupancy of the property purchased by them. While, therefore, so much of the land as was in this manner included within the boundaries of streets and avenues, would not become by what had taken place public streets and avenues of the city, they would still be the streets and avenues of the adjacent property owners as long as they remained unchanged by any action on the part of the public authorities, and would be hable to be appropriated for public use upon the payment of mere nominal compensation. And it was proved as a matter of fact before the commissioners that streets and avenues so laid out were usually adopted afterwards by the public authorities of the city.

But without attributing any particular effect to this latter circumstance, the facts as they have already been stated and were proved resulted in such a division of the property at the time of the sales made by the executors of Dyckman, and which took place in the year 1870, as to divide this land into lots and streets. That was its' condition in point of fact. It had so been laid out by its owners and was purchased in that manner by these claimants, or their grantors, and it so continued in the purchasers and their grantees up to and including the time of the filing of the map under the act of 1871 selecting this land for the purposes of a military parade ground. After that no practical change took place in the condition of the property, but it remained in this manner until the final discontinuance of the proceedings taken to acquire the title to it. And that was also its condition when the act of 1877 was passed, under which these proceedings were taken and have been carried on. It was during this time not owned as farming land, but it was wholly owned as city lots, in blocks, bounded upon and divided by well defined and designated streets and avenues. And it was in that condition of the property and not as mere farming lands when the act of 1877 was passed providing for the allowance of compensation to the owners for the depreciation in value which had taken place during the period the property had been subjected to the restraints of the map filed, describing and designating it as a parade ground. The property of the claimants, as it had been sold and conveyed, had ceased to be mere farming lands, and had in form and effect been made a part of the property of the city to be used and enjoyed only as building lots. It was in that condition that it was acted upon by the act of 1877. And it was to estimate and determine the loss and damage of the persons whose property was included in the proposed parade ground and had been depreciated by the proceedings, that the commissioners of appraisal were to be appointed, and they were thereupon directed by the act to estimate and determine such loss and damage legal, or equitable, if any should be made to appear. And as the property had been taken by the filing of the map after it had been subdivided and sold in this manner, and while it was so owned, and its owners had sustained loss and damage by reason of the restraints imposed upon it by such taking, they were entitled to be considered and compensated by the commissioners on the basis of their interests acquired in this manner, and not as owners of devisable portions of mere farming lands. The commissioners were to take the-property as it had been placed by the parties dealing in it at the time when the proceedings were commenced, and also at the time when they were terminated, and during which it was intended to appropriate the land, to a military parade ground. And that was as lots bounded upon designated streets, which the purchasers had the right to have maintained and continued as such, against the common owners, and not as mere farming lands.

The evidence and rulings of the commissioners, as well as the report made by them, established the fact that they did proceed in" this manner, and that they estimated the loss and injury which the respective claimants had sustained upon this principle. But while they did that they still deducted from their estimates one-fourth or twenty-five per cent of the amount of damages, because of the fact that the streets and avenues laid out upon the property had not been legally opened by the authorities of the city. Their power to do this has been questioned by the counsel appearing for the city. But if they did. not have that authority the city has no reason to complain, for the commissioners might well have declined to exercise it, even if they had it, and refused to have made this deduction from their estimates. If they erred it was an error in favor of the city and against the claimants.

It was proved as a fact that in 1884 the streets through a portion of this property were laid out differently from their designation on the original and unfiled map, and the map under which the property itself was sold by the Dyckman executors. But that circumstance cannot be permitted to affect the rights of the claimants. They were created and arose out of facts, which had transpired when the act of 1877 was enacted. And it was upon those facts as they were then consummated and appeared, that the commissioners were to proceed and make their awards. And in making them under the application of this principle they were clearly within the bounds of the evidence, and probably within that given by Mr. Fairchild, a witness produced and examined on behalf the city.

During the hearing before the commissioners, it was proposed to add the claims of four other persons, who had not up to that time been included in the proceedings, and they were allowed to become parties by the ruling of the commissioners This ruling is assailed as without authority, but the act of 1877 certainly contained nothing withholding from the commissioners the power to permit these persons to become claimants in the proceedings before them. •

It contemplated, on the contrary, that all persons having claims for damages should be permitted to become parties to the proceedings, and to have their claims heard by the commissioners. And it contained no restriction as long as the proceedings were pending, as to the time within which the claimants should be brought in. And as there was no such restriction it was right and equitable that these persons should be allowed to be added as parties. If that had not been done by the ruling of the commissioners they could undoubtedly have secured the same privilege by an application to the court in the proceedings. And as the commissioners did no more than the court would have done upon a proper presentation of this part of the case, their report in favor of these applicants should not be set aside, even if they strictly did not possess the authority they exercised, as long as it was in conformity to what the court would have felt obliged to do upon the facts being presented to it. The act intended that there should b.e a full and complete investigation as to the claims of all persons who had been injured in their rights by this proceeding. And no more than that was accomplished by what the commissioners directed concerning these claimants.

The appeal of Anthony Wallach and others has been no otherwise pressed upon the consideration of the court than by the argument presented on behalf of the city, and it consequently requires no further consideration for the disposition of the case.

As the report was made it conformed to and carried out the direction of the general term, and the spirit and intent of the act of 1877, and the order should be affirmed, with the usual costs and disbursements.

Brady, J., concurs.


author: Bartlett, J.

text:
    Thomas W. Pearsall, Resp’t, v. The Western Union Telegraph Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1. Negligence—In the transmission of a telegram—Agency.
    This action was brought to recover damages for the alleged negligence of the defendant in the transmission of a telegraphic message. The office from which the message was sent was maintained principally by the railroad upon which it was situated for reporting the movements of trains, but there was one of the defendant’s signs at the station,and there existed between the railway company and defendant a contract that at all the telegraph stations on the road, the employees of the railroad, acting as agents of the telegraph company, should receive, transmit and deliver such commercial or paid messages as might be offered at the tariff rates of the telegraph company, and should pay over to it the receipts derived from such business. The operator at this station was not directly in the railroad employ, but acted for his father, who was the station agent at that place. Held, that he was properly accounted the agent of the defendant in receiving and sending the plaintiff’s message so as to make the defendant responsible for any omission of duty with reference thereto on his part.
    3. Same—Evidence—Exclusion of.
    The message in question was written not upon one of the defendant’s printed blanks, but on a plain sheet of paper. Held, that the printed notice usual on the defendant’s blanks, which laid down certain rules by the observance of which greater accuracy in the transmission of messages might be insured was properly excluded when offered in evidence by the defendant.
    3. Same—Evidence—What will not sustain presumption.
    Held, that in view of the fact that the message was not written on one of the printed blanks of the telegraph company, and the absence of proof that the plaintiff had knowledge of the conditions therein contained he could not be presumed to have assented to them.
    4. Same—Shareholder not presumed to know the rates oe the corporation.

      Held, that the plaintiff could not be presumed to know the rates of the defendant company because a shareholder therein.
    5. Same—Evidence establishing prima eacie case.

      Held, that the misdirection of the message and its delivery to such wrong address was prima facie evidence of negligence on the part of the defendant, and the burden of proof was on the defendant to show that it did not happen through its fault.
    5. Same—Charge to jury.
    The jury having been carefully instructed that the defendant was liable only for ordinary care and that the fact of misdirection and misdelivery being proved and not denied, there was a prima fade case of want of ordinary care: Held, that a refusal to charge that there was no evidence of gross negligence or wilful misconduct on the part of the defendant was not error.
    Appeal by defendant from judgment, entered upon the verdict of a jury at circuit, and from order denying motion for new trial.

      Burton N. Harrison, for app’lt; Thomas G, Shearman, for resp’t.
   Bartlett, J.

This is an action to recover damages for the alleged negligence of the defendant in failing accurately to transmit a telegraphic message from Great Neck, Long Island, to the city of New York. On July 31st, 1884, some person in behalf of the plaintiff, delivered to a telegraph operator at the station of the Long Island Railroad at Great Neck, without pre-payment, a message for transmission to New York, in the following words :

Great Neck, L. I., July 31st.
T. W. Pearsall & Co., Mills Building, New York City:
Buy one thousand Western Union Telegraph.
T. W. Pearsall.

This message was written, not upon one of the partly printed blanks of the Western Union Telegraph Company, but on an ordinary sheet of note paper, with no conditions whatever printed thereon. It was delivered at the office of T. W. Pearsall & Go., in New York, where the company’s charge of twenty-five cents was paid, on the morning of the same day. But the words & Co.” in the address were omitted, and the telegram was inclosed in an envelope addressed simply to “T. W. Pearsall.” No person in the office of the firm possessed authority to open a message thus addressed to the plaintiff personally. Consequently, the telegram remain unopened until Mr. Pearsall’s arrival in the city on the following day. In the meantime, the price of Western Union Telegraph Company’s stock, to which the message related, haa advanced ; and the plaintiff, who bought the stock shortly after his arrival in New York, had to pay more for it than his firm would have been obliged to pay on the day when the message was sent. He brings this suit to recover the amount represented by the advancing price.

It is contended, in behalf of the defendant, that the telegraph operator at Green Neck Was not the agent of the Western Union Telegraph Company, and, therefore, that the corporation is not liable for any negligence on his part. This operator worked in the depot for his_ father, who was the station agent of the Long Island Railroad Company, which maintained a telegraph office there, used principally for reporting the movements of trains. There was a sign of the Western Union Telegraph Company at the station, however, and this operator took all the business that was offered at that place for the company.

The contract between the defendant and the railroad corporation provided that at all telegraph stations on the line of railroad, the railroad employees, acting as agents of the telegraph company, should receive, transmit and deliver such commercial or paid messages as might be offered at the tariff rates of the telegraph company, and should pay over to the telegraph company the receipts derived from such business. This was a commercial message, paid for at the place to which it was sent. Although the boy who-undertook to transmit it was not directly in the employ of the railroad, the functions which he performed for his father in reference to the business of the railroad, and the services which he was permitted to perform as a telegraph operator, not only for the railroad, but for the telegraph company, can leave no doubt that he acted as the agent of the defendant in receiving and sending the plaintiff’s message so as to make the defendant responsible for any omission of duty with reference thereto on his part.

The defendant offered evidence tending to show that it had established reasonable rules and regulations to guard against mistakes in the transmission of telegraph messages which required the sender of a message to have it repeated, that is, telegraphed back to the office whence it came' for purposes of comparison. It also offered evidence showing that notice of this regulation was printed upon its ordinary message blanks, but counsel was not allowed to read this notice to the jury. In view of the uncontradicted testimony of the plaintiff, it was immaterial. The message in question was not written upon one of the ordinary blanks of the defendant, nor had the plaintiff ever read the printed matter on such blanks, nor had he any knowledge of the terms and conditions specified thereon.. Under these circumstances, it is difficult to see on what principle he could be held to have assented to the regulation in regard to unrepeated messages, or how he could be bound thereby. It is true, he was familiar with the general appearance of the blanks, and had been for many years, and had frequently sent messages written on such blanks. Bundles of them lay in his office for use, and he had been in the habit of taking blanks from among these, and of writing and sending messages on them himself. These facts, however, do not estop him from denying any knowledge of the notice or xi^s contents

In Breese v. U. S. Telegraph Co., (48 N. Y , 132), the principle of estoppel was applied because the sender of the message, after abundant time and opportunity to read the printed matter on the company's blanks in his possession, wrote the telegram on one of those blanks Hence, says Earl, J . in that case, when the message was thus written and brought to the office of the company, its agent had the right to assume and believe that the sender accepted the terms and assented to and understood the agreement limiting liability for unrepeated messages. But nothing of the sort occurred in the present case. The message was written on a sheet of common white paper, and thus accepted for transmission. If the plaintiff is to be held bound by the regulations of the defendant company just as much as though he had written this message on one of its blanks, it can only be upon proof that he knew what those regulations were. This is the extent to which the opinion goes in the case of the Western Union Telegraph Company v. Buchanan (35 Ind., 429).

But the plaintiff testifies positively that he nad no knowledge of these regulations, and we think a finding in opposition to his testimony on this subject, notwithstanding the opportunities he had to read the printed matter on the blanks, would have been so manifestly against evidence as to require the court to set aside the verdict.

It is insisted, however, that the plaintiff must be deemed to have known the rules of the defendant as to unrepeated messages, because he was a shareholder in the Western Union Telegraph Company. On this theory, the minutes of a meeting of the directors of the company, held in 1856, were offered in evidence, reciting the adoption of certain rules as to the liability of the defendant for mistakes or delays in messages. These minutes were properly excluded, for several reasons. In the first place, the rules to which. they refer appear to have been superseded by new ones promulgated in 1884. Then there is no evidence whatever that the plaintiff actually knew of their contents, and no such knowledge can be imputed to him merely because he was a stockholder. While the owner of shares in an incorporated company is, under some circumstances, chargeable with a knowledge of the contents of its books, he is not simply as a stockholder bound to know the rules and regulations which the directors may prescribe for the transaction of the business of the company with the public generally, merely because such rules and regulations appear recorded on the minute books of the corporation. No case is cited by the learned counsel for the appellant which sustains his position on this point.

The appellant also complains because the court charged the jury that the misdirection of the message, and its delivery addressed to T. W. Pearsall, at the office of his firm, when it should have been addressed to T. W. Pearsall & Co., was of itself prima facie evidence of negligence. This instruction is sustained by authority. In Rittenhouse v. Independent Line of Telegraph (44 N. Y., 263), it is said: “The defendant was hable on the ground of negligence in the transmission of the message, and the negligence is proved by showing that it did not transmit the message in the form in which it was delivered to it. The burden was upon it to show that' the mistake happened without its fault. ”

Indeed, if any other rule prevailed, it would be exceedingly difficult to ever enforce the liability of a telegraph company for negligence of this character, the entire line and apparatus being so exclusively within its own control, as to render it almost impossible for an outsider to obtain any information as to the causes which led to the mistake.

There is no force in the suggestion that the plaintiff himself was negligent in the manner in which"he sent the message. The measure of damages adopted by the trial court seems to have been correct. The refusal to charge that there was no evidence of gross negligence or wilful misconduct on the part of the defendant, was not error. The jury had been carefully instructed in the main body of the charge that the defendant was hable only for ordinary care, and that the fact of a mis-direction and mis delivery being proved, and not denied, there was a prima facie case of want of ordinary care.

Nothing was said about gross negligence by the court, or by anybody but the defendant’s counsel, until this request was made, and then the court simply refused to charge it. The case as presented to the jury, involved no question of gross negligence or wilful misconduct, and there was no occasion to give any instruction on the subject, one way or the other.

The judgment and order denying the motion for a new trial should be affirmed, with costs.

Van Brunt, 0. J., and Bartlett, J., concur.


author: Van Brunt, P. J. Daetels, J. Beady, J.

text:
    In the Matter of the Judicial Settlement of the Account of Michael M. Van Dyke, as Adm’r., Etc.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    Executor—Proceedings to compel accounting—Statute op limitation—Construction op Code Civ. Pro., § 1819.
    Proceedings to enforce an accounting on the pa.t of an executor should he commenced within six years after the right to acquire it shall have accrued The time within which to institute such proceedings is not extended hy Code Civ. Pro., § 1819. The provisions of that section apply only to the actions and do not include special proceedings. Brady, J., dissenting.
    Appeal by James 0. Van Dyke, as administrator under the will annexed of Michael M. Van Dyke, deceased, from an order of the surrogate of the county of New York directing him to render an account of the proceedings of Michael M. Van Dyke, as administrator of Isaac Van Dyke, deceased.

      Edward G. Black, for the admr., app’lt; William 8.. Hall and A. Melhado, of counsel, for resp’t.
   Van Brunt, P. J.

The objection which was presented to the learned surrogate upon this application was that it was barred by the statute of limitations, and in an opinion given in this matter in which are reviewed all the sections of the Code applicable to the question and numerous authorities, he has conclusively shown that the objection is well taken and that the appellant is entitled to the protection of the statute unless he is brought within the provisions of section 1819 of the Code of Civil Procedure. That section declares that if after the expiration of one year from the granting of letters testamentary or letters of administration an executor or administrator refuses upon demand to pay a legacy or distributive share, the person entitled thereto may maintain such an action against him as the case requires, but for the purpose of computing the time within which such an action must be commenced the cause of action is deemed to accrue when the executor’s or administrator’s account is judicially settled and not before.

It is urged that section 1819 applies only to an action against an executor or administrator for the payment of a legacy or distributive share whilst the proceeding sought to be initiated in the surrogate’s court was simply a special proceeding for an accounting. Unless therefore special proceedings are to be included within the scope of section 1819 the statute of limitations applied to the proceeding at bar. There is nothing in section 1819 which indicates that it was intended to apply to anything but an action against an executor or administrator for the payment of a legacy or distributive share. The language of the section refers to an action, and to an action only, and does not include in its provisions in any way a special proceeding., Throughout the Code the distinction is preserved between special proceedings and actions, .and in the definition of the word action contained in chapter 449 of the Laws of 1816 no reference is made to a special proceeding, but where the word action is used it is stated that it refers to a civil action.

The distinction between civil actions and special proceedings in reference to the Statute of Limitations is expressly recognized by section 414 of the Code, which provides that the provisions of this chapter apply (referring to chapter 4 of the Code of Civil Procedure, entitled' “Limitation of the time of enforcing a civil remedy,” and constitute the only rules of limitation applicable to a civil action or special proceeding, except, etc.

It would, therefore, appear that when, in section 1819, actions were simply referred to, there was no intention on the part of the legislature to include special proceedings therein, and that section 1819, as far as these proceedings are concerned, effected no change in the law, and that the Statute of Limitations remained the same and had run against this application at the time of its attempted initiation before the surrogate..

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

Daetels, J.

The intestate died on the 18th of August, 1884, and Michael M. Van Dyke was appointed administrator of his estate on the 15th of September of the same year. He died in September, 1885, and the appellant was appointed the administrator, with the will annexed, of his estate in October of that year.

The petition for an accounting was presenten oy Blma Hyde in September, 1886.' She was a daughter of the intestate, and, with Lilly Sims, were his only next of kin. The Statute of Limitations was interposed as an answer to the petition, but that was overruled by the surrogate and an accounting directed. Whether this action of the surrogate is entitled to legal support is dependent upon the construction required to be placed upon certain sections of the Code of Civil Procedure.

That the proceeding before the surrogate was a special proceeding is conceded, as it necessarily must be, by each of the contesting parties. And, as a special proceeding, it was subjected, by section 414 of the Code of Civil Procedure, to the same rules of limitation as have been made applicable to civil actions, subject to certain exceptions, one of which alone it will be necessary hereafter to notice. And, having been subjected to these rules of limitation accord-to the provisions of section 382 of the same Code, the proceedings to enforce an accounting should be commenced within six years after, the right to require it shall have accrued. For it is to enforce an obligation .or liability not arising upon a judgment or a sealed instrument. And either this provision or that contained in subdivision 2 of the same section, relating to a liability created by statute, in its language includes the case of a proceeding against the administrator for an accounting.

By section 2724 of the Code, an administrator may be required by the surrogate to submit to a judicial settlement of his accounts after the expiration of one year from the time the letters were issued to him. The obligation to account accrues at that time, and under the provisions of section 382 already referred to, the right to require an accounting will be barred after the expiration of six years from the time when the accounting may be ordered, according to section 2724, unless some other provision of the Code has prescribed a different rule. It has been contended that this has been done by section 1819, and that this section prevents the application of section 414, the first subdivision of which excepts special proceedings from the operation of the section, where a different limitation is specially prescribed by law.

But section 1819 of the Code contains no limitation of time within which the administrator may be called to an account.

It contains no provision whatever on that subject, but it simply declares that the action may be maintained against an adminstrator for the payment of a legacy or distributive share, after the expiration of one year from the time of the granting of letters of administration, and then follows the provision supposed to exclude the case of an administrator from the statutory limitations which have already been mentioned. And that provides “For the purpose of computing the time within which such an action must be commenced, the cause of action is deemed to accrue when the executors or administrators account is judicially settled, and not before.

This provision, it will be seen, contains no enactment-whatever concerning the time within which the accounts may, or shall be, judicially settled. It does not prescribe a different limitation from that mentioned in the preceding sections, within the meaning of the phraseology contained in subdivision 1 of section 414. But without the least intimation as to the period during which the accounting may be-enforced, it has provided that the action mentioned in the section shall not be commenced until the accounting has actually taken place. Within what time the accounting shall take place, or the administrator may be required to-account, has formed no part of this section. But that has manifestly been left to the preceding sections which contain particular directions concerning the time, and the effect of omitting to institute the proceedings within that time. These sections are in no respect inharmonious, for section 1819 provides that the action mentioned in it shall not be commenced until the accounting has taken place, while sections 414 and 382 have declared and provided for the time in which the accounting must be had, in order to avoid the effect of the statutory limitations. The former are declaratory of the time within which the proceedings must be taken, if they are taken at all, and the latter has proceeded no further than to make the action dependent upon the fact of the. accounting having been had.

There was no disposition manifested in any of these pro - visions so to change the law as it previously existed, as to render an administrator indefinitely liable to be called to an account. If a different construction is placed upon these sections, then an administrator has no protection unless it may be dependent upon the presumption of payment arising after the lapse of twenty years. And it has not been the purpose of the statutory provisions imposing limitations upon the times within which legal proceedings are to be taken to leave this subject in this manner exempt from statutory provisions. No other section requires to be considered for the disposition of this appeal. These sections include this controversy, and as more than the statutory time had expired when this proceeding was instituted, the answer of the statute of limitations interposed a complete defense to the petition filed before the surrogate. And for these reasons, as well as those contained in the opinion of the presiding justice, the order should be reversed and an order entered sustaining the answer.

Beady, J.

The learned surrogate seems to be right in his conclusion as to the effect of section 1819 of the Code upon applications of this character. Prior to the change made by that section, the period for commencing an action or special proceeding against an administrator for the cause assigned, was the same. This is conceded.

The language of section of section 1819 does not include a special proceeding in haec verba, but the course of legislation has been such as to indicate the design of having the action and special proceeding exist and go on pari passu together. This is shown by the opinion of the surrogate. There does not seem to be any reason why the proceeding shall be more restricted than the action. Under section 1819 the cause of action is deemed to accrue when the administrator’s account is judicially settled, and not before, and by the provisions of that section, after the expiration of one year from the granting of letters of administration, the person entitled to a legacy or distributive may maintain against the administrator such an action as the case requires. It requires one of two proceedings, an action or a special proceeding before the surrogate, and as to both, the time for commencing is intended to be the same.

I think the remedy sustained by the surrogate is, therefore, within the spirit if not within the letter of the statute, and that the order appealed from should be affirmed, with ten dollars costs of the appeal and disbursements.


author: Van Brunt, P. J. Beady, J Daniels, J.

text:
    Empire State Type Founding Company, App’lt, v. Hugh J. Grant, as Sheriff, etc., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1. Vendor’s lien on goods—How lost.
    The vendor by parting with the possession of his property loses all claim to a vendor’s lien, unless there is an agreement between the parties preventing the passing of the title until the purchase-price has been paid.
    2. Attachment—Replevin—When it will not lie against sheriff.
    Plaintiff agreed to sell to one Tremelling certain personal property for the price of §1,100, to be paid for $500 in cash upon the completion of the delivery and the balance by giving a chattel mortgage upon the property. When the delivery xvas about half completed Tremelling paid §250 on account of the §500 cash. After the delivery had been completed the plaintiff learned that Tremelling had absconded, and that the sheriff had taken possession of the goods by virtue of an attachment issued against Tremelling. Demand was then made upon the sheriff to surrender possession, and refused, and thereupon this action was commenced and the goods replevied by the coroner. Upon the trial of the case the court directed a verdict in favor of the defendant. Meld, correct; that replevin would not lie because the sheriff had the right to the possession of the goods in order to sell Tremelling’s interest therein subject to the lien of the equitable mortgage.
    3. Same—Assessment of value—Code Civil Pro. , § 1726—Affidavit on replevin—Conclusive
    Upon direction of the court the jury assessed the value of the goods at the amount stated in the affidavit upon replevin. Meld, not error; that its right so to do was not affected by the fact that the plaintiff had an equitable mortgage on the property, as the sheriff could only levy upon Tremelling's equity in the property.
    Appeal from, judgment in favor of the defendant entered upon the verdict of a jury rendered under direction of the court.

      George W. Stephens, for app’lt; W. Bourhe Cochran, for resp’t.
   Van Brunt, P. J.

This action was brought to recover the possession of a quantity of personal property which the defendant as sheriff, claimed to hold under an attachment issued against the property of one Tremelling, and which the plaintiff claimed was its property. It appears that in March, 1886, the plaintiff agreed to sell to Tremelling two printing presses and a quantity of printers’ supplies for the price of $1,100 to be paid for, $500 in cash upon the completion of the delivery and the balance by giving a chattel mortgage on the property. The plaintiff then commenced to make the delivery, and fifteen or sixteen days elapsed before the delivery was complete, it being necessary to set up the presses and shafting. When the delivery was about half completed Tremelling paid $250 on account of the $500 cash. After the delivery has been completed the plaintiff endeavored to find Tremelling but without success and on the following day learned that he had absconded, and that the sheriff had taken possession of the goods by virtue of an attachment issued against Tremelling. Demand was then made, upon the sheriff to surrender possession, and thereupon this action was commenced and the goods replevied by the coroner. Upon the trial of the case the court directed a verdict in favor of the defendant, and upon like direction the jury assessed the value of the property as of the amount stated in the affidavit upon replevin.

The question presented in this case is as to whether the title to the property passed to the vendee upon delivery, or whether there was an implication contained in the agreement testified to that the title was not to pass until payment was made in the manner agreed upon.

It is conceded that in the contract made there was no agreement but that the title should pass upon delivery and the rule applicable to cases of this description is, that the vendor by parting with the possession of his property loses all claim to a vendor’s hen unless there is an agreement between the parties preventing the passing of the title until the purchase price has been paid.

It is urged on the part of the plaintiff that the jury had a right to infer that there was such an agreement from the nature of the contract of sale. This would be undoubtedly true were it not for the testimony of the witness who made the bargain and the only witness produced by the plaintiff. Upon being examined in regard to the terms of the contract, he was questioned as to what the general rule was upon the sale of goods of this description where the purchase price was only paid in part, and his testimony was that the rule was to take a chattel mortgage upon the property to secure the payment of the balance. He was asked whether these goods were sold according to the general rule;, and his reply was that they were. He was then asked-.

Q. You didn’t make an exception in this case from any other goods you sold on credit ?

“A. No, sir.

“ Q. You sold your goods to him on credit, the same as to anybody else ?

A. Naturally.

“Q. Did you make any inquiries as to whether this gentleman was solvent %

“A. I did.”

And he further testified that the inquiries which he made were satisfactory to his judgment. This evidence clearly shows that there was no intention upon the part of thevendor to retain the title of the goods until the purchase price had been paid. They were sold on credit. It is true that the vendor intended that the credit should be a short one, but, nevertheless, there was no understanding between the parties, or which could be predicated upon the agreement, as testified to by this witness, that the title should not pass until the purchase price had been paid. It may be all very true that the vendor had an equitable lien to the extent of the mortgage, and that the credit was not given to that extent; but, above the mortgage, Tremelling was the owner and had an interest in the goods, upon which the sheriff could levy, and which justified his taking possession of the property. Under these circumstances replevin would not He, because the sheriff had the right to the possession of the goods in order to sell Tremelling’s interest therein, subject to the Hen of the equitable mortgage.

The objection that it was error on the part of the court to direct the jury to assess the value of the property at the price agreed to be paid therefor, because no evidence of value had been given, is not well taken. The affidavit upon the replevin was before the court and was proved, and sworn to by the plaintiff as to the value of the propperty, and this proof uncontradicted was sufficient to justify the direction of the court, it being an admission of the highest character.

Nor was it error to assess the full value of the property because the plaintiff had an equitable mortgage thereon, and all that the sheriff could sell was the equity in the property owned by Tremelling. Section 1726 of the Code provides that a verdict report or decision in an action for a chattel, where it awards to the prevailing party a chattel which has been replevied, must fix the value of the chattel at the time of the trial, except in the cases mentioned in section 1727; both of the subdivisions of which section are predicated upon the fact that the plaintiff is the general owner of the chattel, which was not the fact in the case at bar.

There seems to have been no error committed and the judgment appealed from should be affirmed with costs.

Beady, J

The sheriff could lawfully levy upon the property in dispute and sell the interest of the debtor in it, subject to the plaintiff’s lien. I concur in this view, and that the judgment should be sustained to that end.

Daniels, J.

The action was replevin to recover the possession of two printing presses, a quantity of type, and other printers’ supplies, machinery and fixtures, sold and delivered by the plaintiff to Guy Tremelling, in the early part of March, 1886. The sale was made pursuant to an agreement that $500 should be paid upon the purchase, in cash, and the residue amounting to a still larger sum, should be secured by a chattel mortgage upon the property, and payable, twenty-five dollars or more, every month. The property was in part delivered when the purchaser paid the sum of $250 in cash upon it, and promised to pay a like sum shortly afterwards. The residue of the property sold was delivered, and when it was all in, the plaintiff’s president went to the office of Mr. Tremelling for the residue of the cash and the mortgage. Tremelling was not there, but was found to have absconded, and on the next day it was stated that the property had been attached by the sheriff, under an attachment issued in favor of William Scott against Tremelling. Upon these facts appearing through the evidence, the court directed a verdict for the defendant, assessing the value of the property at the sum of $1,100.95, as that was stated in the complaint. This direction of a verdict in favor of the plaintiff was probably regular, for the reason that the attaching creditor had the right under his attachment to seize and appropriate the interest of Tremelling in the property. And he had acquired an interest to the extent of $250, the amount paid uy him on the purchase price, and the partial delivery of the property by the plaintiff to him. And if the property had been worth more than the purchase price, the excess in value would be likewise available in favor of the attaching creditor.

But as by the terms of the sale $250 was still to be paid in cash upon the price, and a mortgage given to secure the residue, the plaintiff was entitled to a lien upon the property as a security for the performance of these stipulations. They were conditional in their nature, requiring their performance before the absolute and unqualified title to the property would vest in the purchaser 1 Parsons on Con. (6th ed.), 537-8; Husted v. Ingraham, 75 N. Y., 251, 257.

And this hen, as long as it was not waived, would exist, not only against the purchaser, but other persons not bona fide purchasers from him for value. Comer v. Cunningham, 77 N. Y., 391.

There was no waiver of this lien by any delay or credit being given to the purchaser, for the vendee sought him at his office to obtain the fulfilment of the agreement as soon as the property had been all delivered. And it would therefore be an unwarrantable construction to be placed upon his acts to presume that he intended to dispense with the immediate performance of any part of the agreement by the purchaser. This lien of the vendor was a special property in the goods themselves, and it was the duty of the court to sustain it in his favor, and the plaintiff could not be deprived of it by the seizure of the property under an attachment for a debt owing by the purchaser. For under such process the creditor can seize no more than the title and interest of his debtor in the goods. Ind when the plaintiff failed to maintain the action for the recovery of the possession of the property their assessed value in favor of the defendant, as the representative of the attaching creditor, should for that reason not have exceeded the value of the interest of the purchaser in the goods.

The court seems to have taken a different view of the rights of the parties under the language of section 1726 of the Code of Civil Procedure, which has directed generally where the verdict awards to the prevailing party the chattel which has been replevied and afterwards delivered by the sheriff to the unsuccessful party, or to a person not a party, it must also, except in a case specified in the next section, fix the value of the chattel at the time of the trial. The next section so referred to does not expressly include this case, although in its second subdivision its proceeds upon a principle which will entitle the successful party to no more than the value of his interest in the property, where the defeated party also has a special property in the articles. But while the first section which has been mentioned directs the verdict, report or decision to fix the value of the -chattel at the time of the trial, it could not have been designed to be literally construed, but must have been intended to be adapted to the peculiar features of the cases arising under it, and to have expressed in greater brevity than it should have done, what the value of the chattel was designed to be which is mentioned in the section. It-may very well be satisfied by requiring the verdict, reporter decision to fix the value of the interest of the successful party in the chattel, whatever that may prove to be. It is not unfrequent that statutes are enacted with these elliptical defects. And this omission should be supplied in this-instance. For it cannot be supposed that the legislature designed by this section to oblige the unsuccessful party not only to respond for the interest of his adversary in the property, but pay over to him the value of his own interest also. That would be excessively unjust, and while it may be within the letter of the statute, it should not be presumed to be within its spirit, which it is well established will control its direction.

The Revised Statutes provided in general and more flexible langage what should be done upon the recovery of a-verdict in an action of replevin. Where the plaintiff succeeded, he was declared to be entitled to a judgment for his damages and costs, as well as for the delivery of the property to him, where that had not previously been made, or in default thereof, to recover from the defendant the-value of such goods and chattels, as the same shall have been assessed by the jury on the trial, or upon the writ of inquiry. When the defendant recovered in such an action he was entitled to -a return of the goods and chattels replevied, and also the damages sustained by him by reason of the detention of such goods and chattels. 3 R. S. (6th ed.), 836, §§ 13, 16.

The Code of Procedure in its enactment by section 277 seem to have been designed to group together the substance of these sections of the Revised Statutes, and in a case where the defendant recovered, it was -declared that the judgment should be for a return of the property, or the-value thereof, in case a return could not be had, and damages for taking and withholding the same. This provision as to the value of the property was as mandatory as that which is now contained in the Code of Civil Procedure, and a like rule was applied to the case of a successful plaintiff. The assessment in each case beyond the damages for deduction was directed to be for the value of the property. Yet it-has been held by the courts by way of construing these several statutory provisions, that when the plaintiff recovered on a speeial title, or interest, in the property replevied, against the general owner, that the value to be assessed should be restricted to the value of that special interest. Fitzburgh v. Wyman, 5 Seld, 559; Townsend v. Bargy, 57 N. Y., 665; Allen v. Judson, 71 id., 77.

It is true that this principle was not applied in Buck v. Remsden (34 N. Y., 383), but the point of its application was only passingly mentioned on the decision and it is accordingly entitled to no special weight against these other cases. This rule has been very generally applied in controversies over the title to personal property, and actions for the conversion of property have, therefore, been considered to be within its control. Parish v. Wheeler, 22 N. Y., 494, 511-12.

It is not only just and equitable, but a different rule would be strikingly unjust, for it would have the effect of arbitrarily taking one person’s property, without any reason for it, and giving it to another. It is true that the cases which have been cited, applied the rule only in favor of the plaintiff, but that does not deprive them of their effect as sustaining an equally sound rule of law to the action, when it may be determined in favor of the defendant. For the rights of the defendant under the Revised Statutes, and under the Code of Civil Procedure were cared and provided for by language similar in its effect.

If the plaintiff recovered, the value to be assessed was by the Code of Procedure directed to be the value of the property, and if the defendant recovered it was still the same direction, to assess the value of the property. And as the courts have applied this principle of construction to the cases of successful plaintiffs, there is precisely the same reason for applying it to the case of a successful defendant, and the Code of Civil Procedure using nearly the same language, should be applied in the same way. That will secure no other than a just result, which must have been within the intention of the legislature.

The plaintiff can derive no benefit from the omission in the proof that the notice mentioned in section 1725 of the Code of Civil Procedure, was not proven to have been served by the defendant’s attorney. For no objection to its omission was taken during the trial, when proof of the fact might have been supplied, if it had been important. The case was, on the contrary, tried upon the rights and interests of the respective parties in the property as they appeared and were supported by the evidence and the application of the law to such rights, and it is now too late to gain any advantage by the absence of proof of a compliance with this section. But as the assessment of the value of the property was unwarranted by the proof beyond the interest, or right, which the sheriff had acquired in it, under the attachment, which did not exceed the value of the interest of the purchaser, the judgment should be reversed, and a new trial ordered, with costs, to abide the event, unless within twenty days after notice of the decision, the defendant stipulates to reduce that verdict to the sum of $250, with interest thereon, from the commencement of the action, and the additional allowance of costs in a corresponding manner. If such stipulation shall be served, then the judgment as so reduced will be affirmed without costs of the appeal to either party.


author: Per Curiam.

text:
    New York, Lake Erie and Western Railroad Co., Appl’t, v. James McHenry, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    Practice—Order to examine party to erame pleading.
    It appearing upon the affidavit upon which an order for the examination of certain officers of the plaintiff’s company, to obtain information in order to prepare their answer was granted, that it was not a fishing expedition, but one founded upon the meritorious presentation of facts, which, if true,formed a material allegation in defense to the action. Held, that the order was properly granted.
    Appeal from order. vacating ex parte order, etc.

      J. A. Davenport, for app’lt; S. H. Olin, for resp’t.
   Per Curiam.

This action was brought to recover the balance of $384,188.95, with interest, from November 21, 1886, alleged to be due upon a certain judgment recovered against the defendant in the circuit court of the United States for the southern district of New York on or about the 31st of August, 1883. No answer having been interposed, an application was made for the examination of certain officers of the plaintiff in order to prepare the answer. It appears from the affidavit on which the application is founded that the judgment mentioned was founded upon another judgment rendered in England; and that by the latter the plaintiff was directed to deliver to the defendant, on payment of certain sums, securities alleged to belong to the defendant, and which the plaintiff holds as collateral security; that although these securities were in the possession and under the control of the plaintiff, it had, notwithstanding the order of the English court, rendered itself unable to comply with the order by transferring to third parties the property of the defendant, and that on tender being made of the amount of cash payable by the defendant as a condition of the delivery of this property, the plaintiff neglected and refused to deliver any of it; that under the English judgment all dividends and interest received by the plaintiff or its assignors on account of the property mentioned were to be credited to the defendant; that large amounts of such interest and dividends have been received by the plaintiff, the exact amount of which is unknown to the defendant.

It is further alleged that the plaintiff has or had in its possession other property particularly mentioned which was not the subject of the English judgment or included in the decree in that action, and in reference to which the plaintiff has received large amounts of dividends.

It is not necessary to pursue this examination of the affidavit any further, because sufficient is already stated to show that the examination of the persons named is proper. This does not appear, from the averments contained in the affidavit, to be a fishing expedition, but one founded upon the meritorious presentation of facts, which, if true, form a material allegation in defense to the action. When this appears, it is not only proper but eminently just that the examination sought should be allowed. The action being for a balance, as already stated, the balance must necessarily depend upon the accounts between the parties; and those accounts ought to be open to inspection in all the modes provided for by the practice of the court.

It is not meant by anything contained in this opinion to assert the right of the defendant to an inspection and examination of the books and accounts of the plaintiff, as contemplated by section 803 of the Code. But the said books should be produced to enable the witnesses to answer by reference to the books the questions pertinent to the subject to be investigated upon such examination.

The order should be reversed, with ten dollars costs and disbursements to abide the event; and the order for the examination granted, such order to be settled upon notice.