author: Bradley, J.,

text:
    Mary Reynall, Resp’t, v. Henry T. Harrison, Appl’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 1887.)
    :J. PromissoRY Note — Cause op action — Trial by jury.
    This action was for money loaned by plaintiff to defendant, for which he gave his promiss'ory note, which, about the time of its maturity, was surrendered by plaintiff to defendant. He alleges,'and his evidence is that the full amount of the note was then paid. Plaintiff s evidence is that he then -paid the interest, but none of the principal, and proposed to give his re.newal note; that he drew a note which she took, that defendant did not add Ms signature to the note so drawn, an omission which she did not observe nnt.il near the time of its maturity. He refused to pay, denying any debt. It was contended by defendant that as tlve renewal note was not signed by defendant and the former one made by him, was surrendered by plaintiff, her only remedy was in equity to correct the mistake or supply the omission, .and establish the right to enforce the unexecuted note or charge him upon his undertaking to make the renewal note. Held, that plaintiff’s action was properly one to recover money, and triable by jury. That the liability of the .defendant at law did not depend upon the unexecuted note but upon the loan and surrendered note. That the surrender -was, under the circumstances, no discharge of the then existing cause of action, resting upon the original consideration evidenced by the surrendered note.
    2. Same — Note surrendered to maker — Burden op proof on payee to REBUT PRESUMPTION OF PAYMENT.

      Held, That the plaintiff having surrendered the note to defendant, the burden of proof was upon her to show that it was not paid, and evidence bearing in a legitimate degree upon this question was admissible. •
    S. Same — Wiiat inquiries as to plaintiff’s means relevant.

      Held, That it was competent for defendant on the trial to inquire of her what money or means she, had preceding at, and within a reasonable period following tlie transaction, and the sources from which she derived that subsequently gained, with a view of aiding the jury, in the determination of the issue, but that to exclude a question extending the inquiry beyond such limits was not error.
    4. Same — Relevancy -and competency of acts and declarations of defendant.
    Defendant offered to prove that near the maturity of the note he borrowed money, and stated to the lender his purpose in so doing. Held, that the act of borrowing was not important in its relation to the issue, and that defendant’s declarations were incompetent.
    Appear from judgment entered on verdict of Livingston circuit and from order denying motion made on minutes for new trial. The action is brought to recover the amount of money loaned by the plaintiff to the defendant for which he gave his promis sory note at three years for $1,850, which matured April 9th and 12th, 1882% This note about the time of its maturity was surrend ered by the plaintiff to the defendant. And he alleges, and his evidence is, that the full amount of the note was then paid. The evidence on the part of the plaintiff is that he then paid the interest, and none of the principal, but that she consented to take, and he proposed to give his renewal note due in two years, that he drew a two years’ note which she took and put away with' her papers. The defendant did not add his signature to the note so drawn, and the plaintiff’s evidence is that she did not observe the omission untill about the time for it to mature in April, 1884. He refused to pay, saying he did not owe her anything. The plaintiff recovered.

      S. Hubbard, for appl’t; D. W. Noyes, for resp’t.
   Bradley, J.,

The question whether or not the defendant paid the principal sum of his note of April, 1879. which matured in April, 1882, was a disputed one of fact upon which the evidence was sufficient to support the verdict.

It is contended that, as the renewal note was not signed by the defendant and the former one made by him was surrendered by the plaintiff, her only remedy was in equity to correct the mistake or supply the omission, and to establish the right to enforce’ the unexecuted note or to charge him upon his undertaking to make the renewal note. And in that view the defendant on the plaintiff’s opening insisted that the plaintiff had no right of action at law, and took exception to the ruling of the court to the contrary.

This contention of the defendant is not supported. The plaintiff’s action was properly one to recover money and triable by jury. Code Civ, Pro., 968. The complaint states quite fully the facts.

The liability of the defendant at law does not depend upon the unexecuted note. .

He borrowed of the plaintiff the sum of $1,850, and gave to her his note as evidence of his liability to pay, and specifying the credit and time of payment. This note at maturity was surrendered upon the condition and understanding (in view of the finding of the jury that it was not paid) that he should give her his renewal note payable in two years. This he failed to consummate and created no new obligation to pay.

The right of action therefore rested upon the loan and the surrendered note. This surrender, under the circumstances, was no discharge of the then existing cause of action resting upon the original consideration, evidenced by the surrendered note. Winsted Bank v. Webb, 39 N. Y., 325; Gerwig v. Sitterly. 56 N. Y., 214; Meyer v. Huneke, 65 Barb., 304.

The plaintiff having testified to the transaction of the payment of the interest by the defendant, upon the note; the drawing by him of the unexecuted two years’ note; the surrender of the other to him and that he paid only such interest; she was, on cross-examination by the defendant’s counsel, asked the question, “Now I want you to remember what notes you had at that time ? Counsel for plaintiff objected. The defendant’s counsel proposed to show what means the plaintiff had before the transaction under investigation, and what she had afterwards, and at the present time. The objection was sustained by the court and defendant excepted.”

The question presented by the issue and litigated was whether the defendant’s note had been paid. The plaintiff, having surrendered it to the defendant, the burden was with her to prove that it was not paid. And any evidence bearing in any legitimate degree upon this question was there admissible. It was competent for the defendant to inquire of her what money or means she had preceding, at, and following the time of that transaction, and the sources from which she derived the latter, with a view to aid the jury so far as it might in the determination of the controverted question of fact, whether the plaintiff had received from the defendant the principal sum of the note, and as bearing upon the correctness of her. recollection of the occurrence in that respect. Deshno v. Reynolds. 17 Hun, 137. and cases there cited. The objection was taken to the question put in the form of a request, that the witness remember what notes she had at the time, and then follows the proposition, to wbicb no further objection appears to have been taken, and following which the objection was sustained and exception taken. The proposition as stated upon the objection being made may fairly be treated as an amplification of the question asked, and embraced within the ruling of the court, and excluded by it. And for the purposes of this review here it is so treated. And the question i 3 whether it contained more than the defendant was entitled to prove.

We are inclined to think it embraced too much. The fact as to the means the plaintiff had was not in itself important or material. The inquiry in that respect had pertinence only so far as it was proper for the consideration of the jury upon the question of payment or not of the $1,350. If her money had been increased that amount at that time without any explanation of the source from which it was derived, it would furnish some evidence bearing upon the question. The inquiry within a reasonable time embracing that period would seem to have been properly allowable and legitimate, but to extend the enquiry two and a half years after the occurrence to which it related would seem not to be justified in any view which could be taken of it at the time the question arose upon which such ruling was made. And for that reason the exclusion was not error.

It appears that on March 27th, 1882, the defendant borrowed of one Whiteman $1,300,. and gave him his note for it, due in one year. And the defendant offered to prove that at that time he stated to Whiteman the purpose for which he borrowed it, and what purpose he so stated, and exception was taken to the exclusion» of the evidence. Tins was not error. The evidence that he borrowed the money at that time, although competent to show that he had the means to pay the plaintiff, and proper for the consideration of jury, the fact proved by it was merely a collateral one and extrinsic the question involved for determination. The act of borrowing the money was not an important fact in its relation to the issue. The competency of declarations as part of the res gestae is dependent upon their relation to a fact under investigation. Then the accompanying declarations are admissible as part of the act, and as characterizing it. The fact for determination upon the trial was in the question whether the note was paid, to which the act of borrowing money by the defendant did not necessarily have any relation. And any declaration of the defendant accompanying the latter act, was not admissible as evidence for any purpose. The refusal of the court to charge as requested was without error.

There are no other questions requiring consideration.

The judgment and order should be affirmed.

Haight ahd ANGLE, JJ., concur.


source: Caselaw Access Project

author: Barker, J.

license: Public Domain

text:
    Charles P. Hurlbert, Appl’t. v. Walter D. Parker and Richard T. Parker, Resp’ts,

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1887.)
    New trial — When not granted on ground oe surprise — Newly discovered EVIDENCE.
    Where a party had an opportunity, full and complete, to state his surprise and the situation in which he was placed before a verdict was rendered, and not having done so when it was within the discretion of the court at the time to have made an order of some kind relieving him. Held, that he having taken the chances of securing a favorable verdict was not entitled to a new trial on the ground of surprise. That a new trial will not be granted on the ground of newly discovered evidence when that evidence is merely cumulative.
    ' An Appeal from an order of the Monroe special term denying the plaintiff’s motion for a new trial founded npon a case and also on the. ground of surprise and newly discovered evidence.

      Camp & Dunwell, for the appl’t; S. B. McIntyre, for the respt’s.
   Barker, J.

This was an action of replevin to recover a quantity of unthreshed wheat standing in shocks in the plaintiff’s field. The cause was tried before Mr. Justice Dwight, who denied the plaintiff’s notion. The newly discovered evidence was clearly cumulative. The chief.issue was as to the terms of the contract between the plaintiff and the defendant, Walter D. Parker, who sowed the crop of wheat in controversy. Each of the parties testified on the trial on that subject. Each giving the terms of the contract as he understood the same.

- The plaintiff claims that he can now prove that the defendant made a false statement in his evidence as to the kind of wheat which he' used as seed. If the defendant and his witnesses can be successfully contradicted upon that point it would not be decisive of the real issue, as the variety of the wheat in quastion was wholly collateral to the main question.

The question of surprise is a more serious one. But we are satisfied with the disposition made of that question by the special term; The plaintiff relied upon Mr. Camp, one of the attorneys of record, to act as his counsel on the trial, who was absent when the cause was reached at the circuit. When the cause was called the trial was postponed on the application of Mr. Dunwell, the other of the attorneys of record, for a part of a day, that he might consult with his client and prepare for trial. The court refused to postpone the trial for the term on account of Mr. Camp’s absence. The plaintiff retained Mr. Norton as counsel to assist his attorney, Mr. Dunwell, upon the trial. After the plaintiff rested, Mr. Dunwell received intelligence of the death of his mother, and immediately withdrew from the case, and the subsequent proceedings were conducted by Mr. Norton. No statement was niade to the court of Mr. Dunwell’s affliction and the necessity of his retiring, nor was an application made for delay or postponement on that account. The plaintiff is of the opinion, as stated in his affidavit, that on account of Mr. Norton’s unfamiliarity with the facts of the case, the same was not presented with the same force and intelligence as it would have been by either of his other counsel; that the nonattendance of Mr. Camp and the retirement of Mr. Dunwell .after the trial commenced, so confused and embarrassed him, that he was unable to communicate to Mr. Norton such facts and circumstances as would have enabled him the better to comprehend the case, and to conduct a proper cross-examination of the defendant’s witnesses. Mr. Norton made a brief affidavit, which was read upon the motion, but he omits to make any statement indicating that he failed to comprehend the plaintiff’s case, or that he misconceived the nature and character of it in any respect. The attention of the court was not called to the situation that Mr. Dunwell was obliged to withdraw from the trial and for that reason it is too late to urge that the plaintiff was surprised. The plaintiff had the same counsel who remained in charge of the case, and they took the chances of securing a verdict favorable to the plaintiff, and it would be unfair to compel the defendants to go to another trial for the reason urged. He •had an opportunity, full and complete, to state his surprise and the situation in which he was placed before a verdict was rendered, and it was within the discretion of the court to make an order of some kind relieving the plaintiff from his embarrassment, if it was sufficient to justify a postponement of the trial. Soule v. Osterhout, 20 Wk. Digest, 67.

No good reason is disclosed why the plaintiff should not have moved for the privilege of withdrawing a juror or asking for a temporary postponement of the trial. The charge to the jury was very instructive as to the law of the case, and the evidence was analyzed and its import clearly indicated to the jury. It is usually within the discretion of the court to grant or refuse new trials on the ground of surprise. After considering the particular facts and circumstances of the case, we are satisfied with the disposition made of the motion at special term.

Judgment has not been entered upon the verdict. The value of the wheat was. admitted to be $225- and the jury, by their verdict, so found. The question is not here as. to the form of the judgment which should be entered upon the verdict, nor whether or not the defendants may recover that amount in case, the wheat is not returned to them..

Order appealed from affirmed with costs,

Smith, Haight and Bradley, JJ., concur.


author: Childs, J.

text:
    Emily Clark, Resp’t, v. City of Rochester, Appl’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 25, 1887.)
    1. MUNICIPAL CORPORATION — STREETS — LIABILITY OP CORPORATION POR damages — Nuisance.
    The City of Rochester, pursuant to an ordinance of the Common Council, improved Edward street, in said city, by grading it. Before the improvement the surface water from the territory lying easterly of said street, and the drainage from three other streets passed over Edward street to the west and south of plaintiff’s premises. After the improvement of Edward street the surface water from the land east thereof, and the drainage from said three streets were collected in the gutters along Edward street and conducted to the north end thereof and opposite the premises of plaintiff, where they spread out over the surface of the street and there remained, being covered with slime and emitting offensive odors. Heavy showers of-rain flowed this substance over the sidewalk and upon premises of plaintiff, flooding the eellar to her dwelling, washing oiit the bed of the driveway and so polluting the water in .the well thereon as to compel her to discontinue the'use thereof. Meld, that the collecting the water from said land and streets, and conducting the same in the gutter upon plaintiff’s premises was an unauthorized invasion of her property. That the collection of a considerable body of stagnant water in front of said premises, preventing the beneficial enjoyment thereof, created a private nuisance. That the failure of the city to provide a drain or sewer' to carry off said water, made the city liable to plaintiff for such, damage as she sustained by reason thereof. Cases cited and distinguished.

    2. Same — Evidence — What may be proved — Measure op damages.
    0. was allowed to introduce evidence tending to show that she and other inmates of her dwelling had suffered illness occasioned by the deposit of unwholesome matter upon the premises by the flood of water complained of. Held, competent for the purpose of showing the decrease in the rental value of the premises, which was the true measure of damages.
    Appeal from a judgment entered upon tbe verdict of a jury in Monroe county court and from an order denying a motion for a new trial.
    IN about tbe month of May, 1882, Edward street in tbe city of -Rochester was improved in pursuance of an ordinance or tbe common council. Tbe grade of tbe street was established, and tbe improvement completed, in all respects, in accordance with such ordinance.
    Edward street runs in a northerly direction, and at that time terminated at a high, tight board fence at the north end. Plaintiff is and was at the time of such improvement the owner of the premises No. 37 Edward street situated upon the west side of said street, the northerly line thereof being the north line of end of said street, upon said premises was a dwelling house occupied by plaintiff, also a barn.
    Two streets, to wit: Hudson Park and Gilmore street intersect said Edward street upon the east side thereof within the distance of about 400 feet southerly from the north end of Edward street. These streets, Hudson Park and Gilmore street, are not continued west’ of Edward street. The improvement of Edward street consisted in grading the same and in constructing a plank side-walk on each side thereof. In grading, depressions were filled at some points and at others filling was put in, so that when the work was completed the street from Hudson Park north to the end thereof had a uniform grade, with a gutter upon each side nine inches in depth below the sidewalk and the crown of the street at the center thereof.
    Before the improvement of Edward street the surface water from the territory lying easterly of said street, and the drainage from Hudson Park and Gilmore street, passed over Edward street to the west and south of the plaintiff’s premises. After the improvement of Edward street the surface Avater from the lands east thereof and north of the south line of Hudson Park and the drainage from Hudson Park and Gilmore street were collected in the gutters along Edward street and conducted to the north end thereof and opposite the premises of plaintiff, where they spread out over the surface of the street and there remained, being covered with slime, and emitting offensive odors. HeaAry showers of rain flowed this substance over the sidewalk and upon the plaintiff's premises, flooding the cellar to her dwelling, washing out the bed of the driveway, and so polluting the Avater in the well thereon as to compel her to discontinue the use thereof. This action Avas brought to recover damages for these injuries. The plaintiff had a verdict for $300. Defendant’s motion for a new trial Avas denied and from the judgment entered on such verdict and from the order denying- a neAV trial this appeal is taken.

      Daniel Wood, for resp’t; Ivan Powers, for appl’t.
   Childs, J.

The defendant by its common council had the power under its charter to inaugurate and carry out this improvement and it having been completed in accordance Avith the plans adopted by such council, it is contended by the defendant that the exercise of such poAver was in its nature judicial or discretionary and therefore the- defendant is not liable in damages for any injury sustained by the plaintiff by reason thereof.

Numerous cases in this and other states have been cited by defendant in support of tins contention. An examination of the leading cases cited, avüI sIioav that while they establish the general rule contended for, that the case at bar is not Avithinthe rule.

In Wilson v. The Mayor, etc., 1 Den, 595, the damages were occasioned by surface water naturally falling upon the plaintiff’s premises, but prevented from floAving off by the changes made, in grading its streets by the city ; it Avas held to OAve no duty to its citizen to furnish drainage for the Avater naturally collected on bis premises, and that no liability resulted from the change in the street made tinder

In Radcliff’s Executors v. The Mayor, etc., 4 Com, 195, the city regularly laid out and opened a street, afterwards they proceeded to grade the street, in order to bring it into public use, and in so doing remoyed a high bank which constituted a natural support to the premises of an adjoining owner, so that a portion qí his land fell; there was no allegation of malice, or want of care or skill. It was held that the adjacent owner could not maintain an action on the case for the damages sustained by him, there being no want of care or skill in the execution of the work. BboNSON, Ch. J., in the opinion in this case says :• — ■

“As a general rule, a man who exercises proper care and skill,' may do what he will with his own property, he may not, however, under color of enjoying his own, set up a nuisance which deprives another of the enjoyment of his property. Nor can he rightfully enter or cast anything on the land of another, unless he have license from the owner, or an authority in law for do ing the act. And the absence of a bad motive will not save him from an action.” .

After further illustrating this proposition the learned judge continues : “ The case before us seems to fall within the principle that a man may enjoy his land in the way such property is usually enjoyed, without being answerable for the indirect or consequential damages which may be sustained by an adjoining land-owner.. But if that be a doubtful position, there is a class of cases directly on the point in judgment, which hold that persons acting under an authority conferred by the legislature, to grade, level, and improve streets and highways, if they exercise proper care and shill, are not answerable for the consequential damages which may be sustained by those ' who own lands bounded by the street or highway.”

In Mills v. City of Brooklyn, 32 N. Y., 489, Judge DeNIO, says (page' 495): “The grievance of which the plaintiffs complain, is that sufficient sewerage to carry off the surface water from their lot and house has not been provided. A sewer of a certain capacity was built, but it was insufficient to carry off all the water which, came down in a rain storm,, and the plaintiff’s premises were, to a certain extent, unprotected. Their., condition was certainly no worse than it would have been if no sewer at all had been constructed ; so far as the one laid down operated it relieved the plaintiff’s lot, but the relief was.not adequate,” and it was held that the corporation was not liable.

The case of Smith, v. The Mayor, 66 N. Y., 295, related to a sewer. There was no proof of any defect in the sewer as originally constructed. After a heavy shower, the sewer overflowed, and. flooded plaintiff’s premises. It appeared that the overflow was caused by astoppage of the sewer with sand, etc., washed in from tbe streets. It was beld that tbe corporation could only be made liable for damages upon proof of some fault or neglect upon its part'either in tbe construction of tbe sewer or in keeping it in proper repair.

Tbe case of Lynch v. The Mayor, 76 N. Y. 60, was a Gase where, as stated by Earl, J., “ The defendant caused tbe grade of tbe avenue to be raised twenty feet above tbe surface of the adjoining lands; that they failed and neglected to provide any means' of carrying off tbe rain water, which fell upon tbe avenue, or to prevent such water from draining upon tbe adjoining lands. There is no allegation that defendants, by this work upon tbe avenue, diverted any stream of Avater upon plaintiff’s lot, or that they collected surface water into a channel and thus threw it wpon* such lot, or that they caused any more water to flow upon the lot than would have flowed there if the avenue had not been raised.”

The judgment of the general term affirming the judgment for defendant entered on the dismissal of the complaint at the circuit was affirmed.

It will be obserAed from this examination of the cases, relied upon by the defendant, in support of his claim, that they contain no warrant or authority for a corporation to invade the property of a citizen or by the failure to exercise proper care and skill, to' create a nuisance public or private, to the damage of another.

That the act of defendant in collecting the Avater from the territory easterly of EdAvard street and from Hudson Park and Gilmore street, and conducting the same in a channel or gutter upon the premises of plaintiff, was an unauthorized invasion of the property is beyond doubt, and it is equally clear that the collection of a considerable body of stagnant water in front of plaintiff’s premises preventing the beneficial enjoyment thereof, as disclosed by the evidence, created a private nuisance.

That the exercise of an ordinary degree of care and' skill in the performance of this Avorlc would have avoided the damage to' plaintiff is apparent. Edward street was a cul du sac, across the north end thereof was a high tight board fence cutting off all opportunity for drainage over the surface in that direction; under these circumstances it manifestly became the duty of the defendant, if it saAV fit, to collect and .conduct a body of water to this point in the street, to provide some manner for disposing of it other than to turn it upon the lands of the plaintiff, or to allow it to spread over the surface of the soil and there stagnate until it soaked into the ground or evaporated. It is undoubtedly true that before this improvement of Edward street, Avas undertaken the defendant could not have been required to construct a sewer or drain for the purpose of carrying aAvay any of the surface Avater of this locality, but here they created the necessity for such relief by the failure to exercise such a care and skill in tbe completion of sucli improvement as was required and hence it became its duty to provide such relief in some manner, and for the failure to do so it is liable to the plaintiff for such damage as she has sustained by reason thereof.

The case shows that it was entirely practicable to dispose of this water in such a manner as to avoid the injury complained of, and that the difficulty has been remedied, since the commencement of this action, by the extension of Edward street to Yose street on the north, a distance of about one hundred feet. This precise question was considered by the court of appeals in Byrnes v. City of Cohoes, 67 N. Y., 204, and it was there held, Rapallo, J., delivering the opinion of the court, that “ Diverting the water from its natural course so as to throw it upon the plaintiff’s premises, without providing .any outlet, and thus injuring his building, was a wrong for which he was entitled to redress. The cases cited on the part of the appellant (the defendant) to the effect that a municipal corporation is not liable for an omission to supply drainage or sewerage, do not apply to a case where the necessity for the drainage or outlet is caused by the corporation itself.”

The question wás again considered by the same court in Noonan v. Albany, 79 N. Y., 470, and it was held that a municipal corporation has no greater right than an individual to collect the surface water from its lands and streets into an artificial channel, and to discharge them upon the lands of another. To the same effect is Bastable v. Syracuse, 8 Hun, 587.

The latest exposition of the law on'this subject, by the court of appeals, is to be found in Seifert v. City of Brooklyn, 101 N. Y., 136. This was an action brought to recover damages caused to plaintiff’s premises by defendant’s negligence in the construction óf a sewer.

The defendant invoked the principle, exempting municipal corporations from liability for damages, occasioned through the exercise of judicial functions, by its officers, as a defense to the action. Rtjger, Ch. J., in an able and exhaustive opinion in which the authorities are extensively reviewed, says: “ Municipal corporations have quite invariably been held liable for damages occasioned by acts, resulting in the creation of public or private nuisances, or for an unlawful entry upon the premises of another. whereby injury to his property had been occasioned. This principle has been uniformly applied to the act of such corporations in constructing streets, sewers, drains, and gutters, whereby the surface water of a large territory, which did. not naturally flow in that direction, was gathered into a body and then precipitated upon the premises of an individual occasioning damage thereto.” The cases heréin before cited, with others, are cited in support of this proposition.

Further quotations in support of the rule contended for by the plaintiff, might be made from the opinion in this case, but sufficient reference has been made thereto, to show that the rule established is decisive of the case at bar, and that for the act complained of, the plaintiff had a remedy in the action for damages, notwithstanding the general rule exempting municipal corporations, invoked by the defendant.

Upon the trial testimony was offered by the plaintiff, and received under the objection and exception of defendant, tending to show that the plaintiff and other inmates of her dwelling, had suffered illness, occasioned by the deposit of unwholesome matter upon her premises by the flood of water complained of.

This testimony was received as bearing on the question of the rental value of the plaintiff's premises, and not for the purpose of founding any claim for damages by reason of such illness, such was the statement of the judge made in ruling upon the defendant’s objection, and that this was the sole purpose for which the testimony was .admitted is made clear by the charge of the judge, who said to the jury : “ The only element of damages that you can take into consideration in this action is the difference in the rental value of the premises between the time of the creation of the nuisance and the time it was abated,” and again : “ The other matters that have been suggested to you, for instance, the injury to the health of the plaintiff’s family, are not to be taken into consideration by you; except as bearing on the general question, as to what is the rental value of the premises.” It further satisfactorily appears from the amount of the verdict rendered that the jury followed the instructions of the court and considered only the question of the difference in rental value of the premises, which was the true measure of damages (67 N. Y., 267). We are of the opinion that the testimony objected to was competent and properly received for the purpose indicated, but if this were not so, the defendant has not been injured thereby and therefore no error was committed requiring a reversal of the judgment.

Other exceptions were taken by the defendant to the refusal of the court to direct a verdict for the defendant, and to the refusal of the court to charge certain requests, made by defendant, and to certain portions of the charge as made.

We have examined the rulings complained of and find no error in either.

The judgment and order appealed from should be affirmed.

Judgment and order affirmed.

Haight and Bradley, JJ., concur.


author: Bradley, J.

text:
    William S. Little v. James C. Fargo, as President of the Merchants’ Despatch Transportation Company.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1887.)
    1. COMMON CARRIER — LIMITATIONS OF THE LIABILITY OF — SHIPPER MUST BE SHOWN TO HAVE HAD KNOWLEDGE OF.
    During the time in question the defendant company had its office at the freight office of theN .Y. C. & H.R. R. R.’Co., and when goods were delivered there ¡or transportation by defendan t, receipts were given by the railroad company to the consignor. Plaintiff by his agent on April 25th, 1SS1, delivered at the freight, office for transportation by defendant to plaintiff as consignee at C. five boxes and one bale of trees in good order, and received from the N.Y.C. & H. R. R. R., Co., a receipt to that effect, bearing on the margin the letters “ M.D.” indicating that they were received for transportation by defendant. They were shipped April 26th, but did not arrive at their destination until May 21st, when they were dead and worthless. The trial court directed a verdict for plaintiff for the amount of his loss and interest, declining to submit any question to the jury.
    Defendant admitted the receipt of the property to be carried from R. to C. and alleged that its undertaking as a common carrier was qualified by special agreement by which plaintiff assumed all risk of injury by delay and loss occasioned by mob, riot, or insurrection, and that it was prevented by riotous assemblages from transporting the freight to its destination in tlie usual time. The contention that defendant was relieved from such liability is founded upon defendant’s method of business, which was that the receipts from the R. R. Co., for goods delivered at the freight house to be carried by defendant were presented by consignor to defendant’s agent and bills of lading taken from it expressing the carrier’s contract, and that those made in relation to property like that in question released the company from liability arising from its perishable character. Held, that plaintiff was not charged with this situation unless he was advised of this course of business of defendant when he shipped this property. That there being no evidence of such knowledge there was as applicable to plaintiff and the ti'ansaction no modification of defendant’s liability as a common carrier.
    2. Contract of carrier — -What sufficient.

      Held, that it was unimportant that the receipt taken by plaintiff did not express the terms of a contract to carry, inasmuch as defendant received and proceeded to transport the property without any other contract than that implied in the receipt, and that'when it assumed to do so its liability as a carrier was complete.
    3. Same — What will relieve carrier from liability — Strikes. •
    It having been shown by the evidence that the operation of the road over which property was transported, was interrupted by strikers, many of whom were those just previously in the employ of the company controlling the road, Meld, that while engaged against the company they were not its employees, and that so far as this interruption necessarily delayed the delivery of the goods, it constituted an excuse to the railroad company for any injury to freight arising therefrom, and that the same excuse would, in those .circumstances, be available for defendant, provided that in neither case it happened through the fault of the carrier, and could not by reasonable care have been . avoided.
    4. Same — Negligence and diligence — Question foe jury.

      Meld, that the whole question of diligence and negligence was properly a question for the jury.
    Motion by tbe defendant for a new trial on exceptions taken at Monroe circuit, and ordered beard at general term in tbe first instance.

      Daniel H. McMillan, for deft.; William S. Oliver, for plff.
   Bradley, J.

-The Merchants’ Despatch Transportation Corn-pony, a joint-stock association, of which Fargo was president, was a common carrier, engaged in the transportation of property as such by lines of railroad, amongst which were the New York Central and Hudson River Railroad, and the Lake Shore and Michigan Southern Railway. The office of the defendant company at the city of Rochester was at the time in question in the freight office of the N. Y. C. & H. R. R. R. Co. And when goods were delivered there for transportation by the defendant company, receipts were given by the railroad company to the consignor.

On the 25th of April, 1881, the plaintiff by his agent delivered at the freight office for transportation by the defendant company, to the plaintiff as consignee, at Corning, in the state of Iowa, five boxes and one bale of trees in good order; and received from the N. Y. C. & H. R. R. R. Co., a receipt to that effect upon the margin of which were the letters “ M. D.,’ indicating that they were received for transportation by the defendant company. The trees were shipped April 26th, but did not reach the place of destination until the 21st of May following, when they were dead and worthless.

The trial court declined to submit any question to the jury, and directed a verdict for the plaintiff for the amount of his loss and interest, and exception was taken.

The defendant company admits that the property was delivered to and received by it for transportation from the city of Rochester, N. Y., to Corning, Iowa, and alleges:

1. That its undertaking as a common carrier was qualified by a special agreement by which the plaintiff assumed all risk of injury by delay and loss, that might be occasioned by mob, riot, or insurrection. 2. That it was prevented from transporting to the place of destination within the usual time, by a riotous and tumultuous assemblage of persons who by force and violence detained and delayed the transportation without its fault, and that the delivery of the goods at their place of destination was made as soon and in as good condition as it was able to do it. The usual time occupied in the transportation between those places was eight to ten days.

It is contended on the part of the defendant, that it was relieved from liability by contract between the parties; and this contention is founded upon the method and course of business of the defendant company, which was that the receipts from the railroad company for goods delivered at the freight house to be carried by the defendant were presented by the consignor to the agent of the defendant company and bills of lading taken from it expressing the contract of the carrier, and that those made in relation to property like that in question released the company from liability arising from its perishable character. At least tlie evidence on the part of the defendants tended to prove that such was its method and the effect of its bill of lading. And for the purposes of the question here we so assume. The plaintiff is not charged with this situation unless he was advised of this course of business and custom of the defendant at the time he shipped this property. The defendant received and undertook to transport, and did carry the goods without delivering to the plaintiff any bill of lading or informing him on that occasion of any qualification of its duty as a carrier. It may be that if he understood that such was the method of the defendant in making its contracts of carriage he would have been chargable with its legal effect although he omitted to present the receipt of the railroad company and obtain the bill of lading. It then might be said that he had knowledge that the contract was not implied by tíre mere acceptance indicated by the receipt of the railroad company. Shelton v. Merchant's Despatch Transportation Company, 59 N. Y., 258. But that question may be worthy of discussion. It is not here and we express no' opinion upon it. Dorr v. N. J. Nav. Co., 11 N. Y., 485.

Although the plaintiff had on previous occasions shipped goods for carriage by the defendant, and they had been transported by it, he says that he had never received any bill of lading, nor anything other, more, or different than the receipt of this railroad company upon the delivery of the goods, and that he never had understood or been advised of any course of business, or custom of the defendant which required the presentation of such receipt, and the taking of a bill of lading, or that the defendant had any method of making a contract for transportation at Rochester, other than that which was implied -by the receipt of property for that purpose in the manner that it was done and represented-in this instance. And while the agent of the defendant expresses quite confidently that the plaintiff understood this method of the defendant, he founds his statement wholly upon assumption and belief without the knowledge of any fact or circumstance to support his statement as evidence.

There is therefore no evidence to justify the conclusion that the plaintiff had knowledge or information of any custom of the defendant in respect to its contracts for transportation, which qualified it§-common.law undertaking as common carrier; and therefore as applicable to him and the transaction in question there is no modification of the defendant’s liability as such. Coffin v. N. Y. C. R. R. Co., 64 Barb, 379 — affirmed 56 N. Y., 632. Nicholas v. N. Y. C., & H. R. R. R. Co., 89 N. Y., 370.

The fact that the receipt taken by the plaintiff of the railroad company did not express the terms of a contract to carry, does not seem to us important inasmuch as the defendant received and proceeded to transport the property without.any contract other than that which was implied by the receipt of it for carriage to the place of destination, arid when it assumed to do so, the undertaking of the defendant as carrier was complete without any further contract. The determination in Shelton v. Merchants’ Despatch Transportation Co., supra, was governed by the fact that the shipper and the carrier had a habitual course of dealing respecting the contracts for transportation, which was properly considered in giving construction to their acts and intention at the time of the delivery and shipment of the goods, and therefore the bill of lading taken by the shipper from the carrier after their shipment, might be treated as the consummation of the understanding of those parties at the time they were delivered to and received by the carrier.

This was the ground for its support as the contract: and furnished the reason for the reversal of the court below. (4 J. & S., 527.) The right of the defendant was to withhold the transportation of the property, and decline to send it forward until the bill of lading was taken, defining and qualifying its duty or liability as carrier, and to promptly so advise the.plaintiff or his agent. The fact. that the plaintiff had that year executed with the railroad company a contract having relation to transportation by it for him, qualifying its liability in some respects, we think had no material bearing on any question here. That was made with the company as a principal party and related solely to transportation by it for the plaintiff.

The goods in question were carried by it for the defendant, and the latter was the only party with which the plaintiff contracted to transport them. ■

The defendant undertook to carry the property to the place of destination, and assumed in that respect the common law duty. And if the delay which occasioned the injury to it Avas caused by want of due diligence on the part of the defendant, it became liable to the plaintiff.

This is the more serious question.

The defendant was responsible for the failure to exercise proper care and diligence on the part of the agencies employed by it to carry the property. Their negligence is that of the defendant. And if it was without fault the plaintiff is not entitled, to recover. Wibert v. N. Y. & E. R. R. Co., 12 N. Y. 245.

The goods arrived at Englewood, a freight yard, near the city of Chicago, on April 30th, and were taken to the city, May 3rd, and delivered to connecting carrier, May 16th.

The evidence tended to prove that the L. S. & M. S. Ry. Co., encountered difficulty in moving its trains into and through the city; which was occasioned by a combination of persons, composed of switchmen of that and other railroads, and others, to obstruct the movement of the trains. That there was a strike of this class of railroad employees which commenced on May 2nd, and continued until May 16th. And they quite effectually during tbe continuance of tbe strike, interrupted the business of the road. That although that company employed other men, and had an adequate force to operate its trains, they were prevented by this organized opposition from proceeding with the business; that the strikers got on to the trains, applied the brakes, stopped them, took out and threw away the coupling pins, thus cutting the trains to pieces ; turned switches, and in that manner derailed moving trains; sought by persuasion, and threats to induce and compel the workmen to quit the service of the company; and by other means sought to obstruct and delay the movement by the company of its trains.

This trouble was mostly within the city, but it also extended to the Englewood yard. And upon the evidence, the conclusion was permitted that the company used all reasonable means and (effort to move its trains, and that the delay in the time occupied In so doing, was without negligence or fault on its part.

So far as this interruption necessarily delayed the delivery of goods to their place of destination, it constituted a legal excuse .and defense to the railroad company for any injury to freights ■occasioned by such delay, although caused largely by the action ■of the employees of the company who were in the strike.

They were not its employees while so engaged against the company. Geismer v. L. S. & M. S. Ry. Co., 102 N. Y., 563.

And the same defense is available to the defendant so far as the transportation of the property in question was necessarily ■delayed and the loss occasioned by the same cause.

The railroads were the known agencies for the transportation by the defendant of the goods. The fact is so alleged and admitted by the pleadings, and the undertaking of the defendant •to carry them was so qualified as not to embrace liability for the ■consequences of necessary delays in transit by the railroad companies.

To constitute such delay an excuse, it must be without fault ■or negligence of the carrier, and such as could not by the exer■cise of reasonable care and diligence have been avoided. It is ■contended on the part of the plaintiff that there was no neces■sary occasion for any material delay in transferring and forwarding the property in question, because the connecting line for it was the Chicago, Burlington and Quincy railroad, and the trans,.fer to it could properly be made at Englewood, and that there was no occasion to take it into the city of Chicago, or to subject it to-the delay occasioned by the obstructing forces there.

The plaintiff’s agent says that the trees were destined for the C. B. & Q. R.R., for carriage beyond Chicago, that about May 12th, he found them on the platform of the freight depot of the L. S. & M. S. R. R., in Chicago, that there was then no appearance of violence or strike, and that the trees had to be taken .back to Englewood to be sent west to their destination.

These facts are entitled to consideration, and it may be by the use of the proper diligence, which the company was required to exercise that the plaintiff’s property may have been transferred and sent forward in time to have obviated the loss sustained, and a finding to that effect would have been supported by the evidence ; but in view of all the circumstances there was a question of fact for the jury. The evidence tends to prove that the strüe of the switchmen was general of all the railroads coming into the city, that it extended to some extent to Englewood. This property was in a freight car upon the L. S. & M. S. R.R., how it was situated in reference to other property (if any) in the same car, or the location of the car in the train of which it was a part, does not appear. It does appear that there were several trains collected at the Englewood yard. And there is some evidence tending to prove that the company was diligently malting an effort to reach its connecting lines; and whether the company failed with reasonable diligence to avail itself of all the facilities, and the best opportunities under all the circumstances, cannot be determined as matter of law upon the evidence and the inferences derivable from it.

This and the whole question of diligence and negligence, so far as it has relation to the transportation of the plaintiff’s property was properly a question for the consideration of the jury.

It may be that if the trial court had been advised of the opinion of tire court of appeals in the Geismer case (resulting in reversal of the decision of this court, 34 Hun, 50), delivered only a few days before the trial of this action, the case might have been sent to the jury upon the question referred to as one of fact for them to determine.

The motion for a new trial should be granted. Costs to abide the even.

Haight and Lewis, JJ., concur.


text:
    Theron E. Parsons, as Adm’r, with will annexed, etc., Resp’t, v. City of Rochester, Appl’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1887.)
    1. Taxes and Assessments — When payment made under compulsion MAY BE RECOVERED BACK.
    Where an assessment was paid, in which the proceedings imposing the assessment were valid on their face and extrinsic evidence was necessary to establish their invalidity. Held, that the reversal of the assessment and setting the same aside as void is conclusive evidence that the money was obtained from the person paying the assessment without right. That as the assessment was valid on its face, the payment of the tax was compulsory in a legal sense and may be recovered back by the parties coerced to make the payment.
    2. Same —When right oe action to recover back accrued — Statute-op LIMITATIONS.
    As soon as the money was paid a right of action accrued in the plaintiff’s favor entitling him to a judgment declaring tlie assessment void, and recovering back the money which had been paid. The statute of limitations began to run from such payment. A void assessment, which created an apparent lien on the land assessed, was the fact which gave a right of action in favor of each and every of the respective land owners affected thereby, and not the decision in an action declaring the assessment void. 'Whether the action to recover must be commeneed within six or ten years. Quaere.

    AN appeal by the defendant from a judgment entered in the Monroe county court affirming a judgment of the municipal court of the city of Rochester for the sum of $265.80 damages, and $27.38 costs, in favor of the plaintiff against the defendant.
    In the year 1865, the common council of the city of Rochester instituted proceedings to improve Oak street, and for the purpose of raising money to meet the necessary expenses, they were authorized by the charter to assess the same upon the several parcels of land abutting thereon.
    The deceased Lauren Parsons, who died prior to the instituting of these proceedings, was the - owner of one of the parcels and at the time the improvements were made one of the parcels belonged to his estate and was assessed by the common council, $324.72. In August, 1865, his personal representative paid on and towards the tax $108.24. After such payment, but when is not disclosed by the case, William E. Hassan and others, whose lands were assessed for the improvement, commenced an action in the supreme court to set aside the assessment as invalid, and a final decree was entered therein on the ninth of September, 1882, setting aside and declaring the said assessment void for the reason that all the lands benefited by the improvement were not assessed as required by the provisions of the city charter. Neither the personal representatives of the deceased or his heirs-at-law were parties to that action. At the time of the commencement of tins action the premises had been alienated and were owned by one James Crouch. In May, 1885, this action was commenced in the municipal court to recoyer the portion of the assessment paid by the personal representative of the deceased. No further statement of fact is necessary to an understanding of the question discussed in the opinion.

      I Van Powers, for appl’t; Charles H Kingsbury,.for resp’t.
   Barker, J.

The proceedings of the common council in levying the tax for the improvement of Oak street were illegal and void, for the reason that a parcel of land owned by the State and benefited by the improvement was not assessed with the other lands benefited. The case of Hassan et al. v The City of Rochester (67 N. Y., 528), was prosecuted for the purpose of contesting the validity of the assessment and the same was declared void for the reason stated. It was also held in the same case that the proceedings imposing the assessment were regular and valid on their face and that extrinsic evidence was necessary to establish their invalidity. We shall assume in disposing of this appeal, that the money paid on and towards the assessment by the personal representative of the deceased was paid by him in the line of Ms duty, and was a proper and legitimate use of funds in his hands .belonging to the estate of Parsons. TMs point being conceded then it cannot be denied but that the money paid, ex cequo et bono, belongs to the plaintiff in representative capacity, and was held by the defendant for his use. The reversal of the assessment and setting the same aside as void, is conclusive evidence that the money was obtained from the estate of the deceased without right. As the assessment was valid on its face, the payment of the tax was compulsory in a legal sense and may be recovered bach by the parties coerced to make the payment. Both of these propositions were affirmed in Peyser v. the Mayor (70 N. Y., 497). It is unnecessary to reiterate the reasons upon which these rules are founded, as they are fully and comprehensively stated in the opinion of Mr. Justice Folger, in Strusburgh v. Mayor, etc., 8 7 N. Y., 452. These well established principles were applied to the facts in that case.

We are, however, of the opinion that the plaintiff hasTost his right of action by laches on his part and the statute of limitations bars a recovery. As soon as the money was paid, a right of action accrued in the plaintiff’s favor entitlhig him to a judgment declaring the assessment void and recovering back the money winch had been paid on and towards the assessment. Nearly twenty years elapsed after the payment and before the commencement of this action. Nothing intervened during this long period to arrest the running of the statute. The personal representative of Parsons was not a party to the Hassan suit. He had no control over the same and was not concluded by the judgments Nor did the pendency of that action prevent the prosecution of one by the plaintiff to recover back the money. Every person whose lands were assessed could have maintained an individual action to vacate the same as invalid and if he had paid the assessment to recover back the money in the action, Strusburgh v. Mayor, 87 N. Y., 452. The decree in the Hassan suit vacating the assessment was conclusive evidence of its invalidity, and was properly reviewed in evidence for that purpose.

•The respondent’s position that he had no right of action until the final decree in that action was entered, in the year 1882, is utterly fallacious. That decree did not create a right of action in any one. The void assessment which created an apparent lien on the land assessed was the fact wMeh gave a right of action to the plaintiff in that action and also0a like one in favor of all and each of the respective land owners.

The decree in the Hassan suit so far as the other land owners were concerned became evidence which they might use to prove that the tax was illegal. The provisions of the statute of limitations are very comprehensive and include actions of this character and it is unnecessary to determine whether it belongs to the class which must be prosecuted within the six or ten years after the cause of action arose. In Brundage v. The Village of Portchester, 31 Hun, 129, the precise point was considered and it was held that as soon as an invalid tax was involuntarily paid for the improvement of a public street, a right of action accrued and the statute of limitations barred a recovery after a period of six years.

The judgment of the county court and of the municipal court are both reversed with costs.

Smith, Haight and Bradley, JJ., concur.


author: Haight, J.

text:
    Hobart F. Atkinson, as Receiver of the City Bank of Rochester, Resp’t, v. The Rochester Printing Co., Appl’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 25, 1887).
    1. Banks and banking — tbansfeb of pbopebty in violation of Laws 18S2; ch. 409, § 186 — Intent not matebial.
    Defendant was a depositor in the City Bank of R., and made deposits in the bank on December 16th, 17th, 18th, 19th, 1882, and on the close of business on the 19th there was a balance due the defendant from the bank of §3.004.22. During those days the bank was insolvent to the knowledge of its financial officers. On the evening of the 19th there was a meeting of the directors, who resolved to discontinue business and apply for a receiver. The cashier on the morning of the 20th, knowing of the insolvency and of the directors’ action, called for an officer of defendant and on his arrival at the bank, gave him drafts belonging to the bank, and amounting in the aggregate to $ 3.180.32,taking defendant’s check therefor,dated as of the 19th. The bank was not again opened for business. The people commenced an action on the 20th for the dissolution of the corporation, and judgment was entered on the 23d, dissolving the corporation on account of its insolvency, and appointing plaintiff as its receiver. No resolution was ever passed by the board of directors auhtorizing the transfer of the drafts to defendant. No one of the drafts so transferred amounted to §1000; all were paid to defendant but one, which was protested and action brought thereon by defendant. After plaintiff’s appointment as receiver, and before knowledge of the facts ■ of the transfer of the drafts, he called upon defendant for the amount of the over draft paid and subsequently demanded return of the drafts, which was refused. This action was, thereupon brought to recover back the drafts.

      Meld, that as defendant was not paid in specie or current money, and did not part with any valuable consideration on the receipt of the drafts, the case was within the prohibition of Laws 1882, Chap. 409, § 186, which forbids the transfer by a corporation of any of its effects exceeding one thousand dollars in value, unless authorized by a previous resolution of its board of directors. That under this section the question of intent was not material. That the fact that no one of drafts exceeded §1000 was unimportant.
    2. Same — Laws 18S2, cl. 409, § 1S7 — What evidence considered sufficient to show intent of tbansfeb.

      Held, that under § 187 of said laws, providing that the transfer by a corporation when insolvent, or in contemplation of insolvency, with intent of giving a preference tq7any particular creditor, the question of intent was involved and was ordinarily a question for the jury, but that in this case the transfer by the cashier and insolvency of the bank being undisputed, and the cashier knowing of the insolvent condition of the hank and the action of the board of directors, and the transfer of the drafts necessarily preferring defendant over other creditors the questions were properly withheld from the jury.
    3. Fraud — Corporation may be guilty op fraud through an opfcee— Identity op property with that obtained by fraud must be SHOWN TO RECOVER.

      Meld, that a bank might be guilty of fraud, and that whei'e one had been induced to part with property by fraud of an officer, the defrauded party might on discovery of the fraud rescind the contract and recover the property or proceeds thereof unless in the hand of a bona fide holder; but that the right to restoration depended upon the identity of the property which it is sought to have restored as did also the right to defend the possession there-, of, and that the drafts transferred to defendant not being those previously owned and deposited by it in the bank, the court properly excluded evidence of fraud and properly refused to submit this branch of the case to the jury.
    4. Account stated — What does not constitute. „
    It appearing that plaintiff at the time of the repayment of the over draft did not know the circumstances under which the drafts were transferred to defendant. Meld, that it could not be regarded as a settlement between the parties of plaintiff’s right as receiver to have the drafts or the proceeds restored.
    5. Commercial paper — Measure op damages — Kule as to not subject por expert testimony.
    One of the drafts transferred to defendant had been presented for payment, and payment refused. It was offered to prove the value of the draft by one professing to be an expert on commercial paper. Held, that such testimony was incompetent, that in cases of the conversion of commercial paper the measure of damages is the nominal or full value of the paper, unless it be reduced by showing payment, insolvency or some fact to invalidate the paper.
    6. Same — answer alleging defense competent evidence to show THAT PAPER IS WORTHLESS.

      Meld, That an answer set up in an action on such- draft was competent evidence to show the fact that there was a valid defense to the action and that the draft was consequently worthless. . The defendant had a right to show that an action had been brought, that a defense had been interposed, what the defense was, and that it was true.
    Appeal from a judgment entered upon a verdict directed by the court in favor of the plaintiff, at the Monroe circuit, and from an order of the Monroe special term denying motion for new trial. °

      J. & Q. Van Voorhis, for appl’t; Smith Briggs, for resp’t.
   Haight, J.

This action was brought under the statute to recover back the value of certain drafts, amounting in the aggregate to the sum of -13,180.82, which it is claimed were transferred to the defendant in violation of the statute, and with the intent of giving a preference over other creditors of the bank, of which the plaintiff is the receiver.

It appears from the evidence taken upon the trial that the defendant was a depositor in the City Bank of Rochester, and that it made deposits in the bank on the 16th, 17th, 18th and 19th. days of December, 1882, and that on the close of business on the-19th there was a balance due the defendant from the bank of 13,004.22. That during these days the bank was insolvent, and. tbis fact was known to its financial officers. That on the evening of the 19th of the December there was a meeting of its directors, who resolved to discontinue business, and apply for a receiver. That on the morning of the 20th the cashier, knowing of the insolvency and of the action of the directors, telephoned for an officer of the defendant, and when that officer arrived at the bank, gave him certain drafts belonging to the bank, which amounted in the aggregate to $3,180.32, and took the defendant’s check therefor, dated December 19th. That the bank was . not again opened for business. On the 20th of December an action was commenced by the people for the dissolution of the corporation, and on the 23rd of December judgment was entered in that action, dissolving the corporation on the ground of its insolvency, and appointing the plaintiff its receiver. No resolution was ever passed by the board of directors authorizing, the transfer of the drafts to the defendant. No one draft amounted to one thousand dollars, but altogether amounted to the sum before stated. All of the drafts so transferred were paid to the defendant but one, which went to protest, and action was brought by the defendant to recover the amount thereof. After the plaintiff was appointed receiver and before knowledge of the facts of the transfer of these drafts on the morning of the 20th, he called upon the defendant for the amount of the overdraft which was paid to him and subsequently, on discovering the facts, demanded- of the defendant the return of the drafts, less the amount repaid, which was refused. At the conclusion of the evidence the court directed a verdict in favor of the plaintiff for the amount of the^-drafts with interest, less the amount repaid as an overdraft. The appellant took numerous exceptions to the rejection and admission of evidence, and to the refusal to submit certain questions to the jury.

It is contended in the first place that the court erred in refusing to submit to the jury the question of the intent with which thh drafts were transferred to the defendant.

The statute under which this action is brought provides as follows:

Section 186 : “ No conveyance, assignment or transfer not authorized by a previous resolution of its board of directors, shall be made by any such corporation of any of its real estate, or any of its effects, exceeding the value of one thousand dollars ; but this section shall not apply to the issuing of promissory notes, or other evidences of debt by the officers of the company in the transaction of its ordinary business, nor to payments ■in specie or other current money, or in bank bills made by such officers; nor shall it be construed to render void any conveyance, assignment or transfer in the hands of a purchaser for a valuable consideration and without notice.”

Section 187 : “ No such conveyance, assignment or transfer, nor any payment made, judgment suffered, lien created, or security given by any such corporation when insolvent, or in contemplation of insolvency, with the intent of giving a preference to any particular creditor over other creditors of the company, shall be valid in law; and every person receiving by means of any such conveyance, assignment, transfer, lien, security or payment, any of the effects of the corporation, shall be bound to account therefor to its creditors or stockholders, or their trustees, as the case shall require.” [Laws of 1882, chap. 409.]

It will be observed that under the first section of the statute quoted an assignment or transfer of the effects of a bank, exceeding the value of one thousand dollars, not authorized by a previous resolution of the board of directors, is prohibited except in the cases reserved by the statute. The defendant was not paid in specie or other current money, and did not part with any valuable consideration on the receipt of the drafts. It was consequently not within the exceptions, and as we do not understand that under this section the question of intent is involved. The transfer of the drafts was one transaction. They were all enclosed in one envelope. The amount of them exceeded one thousand dollars. The fact that no one draft exceeded that sum is unimportant, for the statute evidently intended to protect the bank from the illegal and unauthorized acts of its officer or agent, and to limit the power of transfer < f any of its effects. To hold otherwise would in fact nullify the statute and permit the cashier to transfer, in one body and to one person, every note, draft or other paper under a thousand dollars in value, held by the bank, even though the aggregate value exceeded one hundred thousand dollars.

The other section of the statute prohibits the conveyance, assignment, transfer or payment by the corporation, when insolvent or in contemplation of insolvency, with the intent of giving a preference to any particular creditor, etc. Under this section the question of intent is involved and ordinarily becomes a question for the jury. But in this case the evidence as to the transfer by the cashier of the bank is undisputed, and the rule is that a party must intend the necessary consequences of his own act. It was conceded upon the trial that the bank was insolvent and had been for some days. The cashier knew this fact and of the action of the board of directors the evening before. The taking from the bank of the drafts in question and transferring them to the defendant, of necessity preferred their claim over that of the other creditors. Whether or not the defendant knew of the insolvency of the bank or the purpose of. the cashier in transferring the drafts was immaterial. The evidence upon this subject being undisputed, the court properly refused to submit the questions to the jury. National Security Bank v. Price, Rec’r, 22 Federal Reporter, 697.

Upon tbe trial the defendant proved that it had no knowledge of the embarrassed condition of the bank when it made its deposits, and sought to prove that it would not have made the deposits or left its money in the bank if it had known that the bank was insolvent. This evidence was excluded and exception taken. The defendant also asked to go to the jury upon the question of the fraud of the officers of the bank in obtaining and retaining the defendant’s deposits, knowing the bank to be insolvent ; which was refused and exception taken.

Undoubtedly a bank may, in a legal sense, be guilty of a fraud. And where one has been induced to part with property by the fraud of an officer thereof, the party defrauded may, upon discovery of the fraud, rescind the contract and recover the property or the proceeds thereof, unless it has come to the possession of a bona fide holder. Cragie v. Hadley, 99 N. Y., 131; The National Bank v. Insurance Co., 104 U. S. R., 54, The People, etc., v. The City Bank of Rochester, 96 N. Y. 32; The Metropolitan National Bank v. Loyd, 90 N. Y., 530. But the difficulty of the appellant’s position is that it was not following the property deposited in the City Bank or defending the possession of such property. The drafts that were transferred to the defendant were not drafts deposited by it in the bank. Had they been, a different question would have been presented. The right of the defendant to restoration of the property deposited or to defend its possession, is founded upon ownership. If a fraud was practiced upon the defendant to induce it to make the deposit, the bank obtained no title to the deposit by reason of the fraud, and consequently the defendant would have the right to a restoration of that which belonged to it, and, had the property been returned to it, it could properly have defended its possession. The right to restoration also depends upon the identity of the property which it is sought to have restored, and the right to defend the possession of the property must also depend upon such identity. The drafts transferred to the defendant not being those previously owned by it and deposited in the City Bank, the trial court properly excluded the evidence offered and refused to submit this branch of the case to the jury.

It is also claimed by the appellant that the plaintiff’s statement in reference to the account of the bank and the payment of the overdraft, was an account stated between the plaintiff and the defendant, and by that act the plaintiff’s claim was settled. The plaintiff had recently been appointed the receiver of the corporation, and had had to acquaint himself with the affairs of the bank. As we have seen, the defendant’s check that was given upon the receipt of the drafts, was dated back to the 19th day of December, the day upon which the bank did'business. The plaintiff, it appears, did not know at the time of the repayment of tbe overdraft tire circumstances under which the drafts were transferred to the defendant. It consequently cannot be regarded as a settlement between the parties of the right of the plaintiff: as receiver to have the drafts or their proceeds restored.

Among the drafts transferred to the defendant was one drawn on Loomis & Woodworth for 198.363. dated the 19th of December, 1882. This draft had been presented for payment by the defendant and payment refused. ' An action had been brought to recover the amount thereof and an answer had been interposed by Loomis & Woodworth. Upon tire trial the defendant sought to show the value of this draft, by Mr. Pond, a witness. He was asked if he was acquainted with the value of commercial paper and if he had owned and known of its being bought and sold; he answered that his experience was teaching him something of the worth and worthlessness of commercial paper. He was also asked whether in his judgment the draft was worth its face at the time the defendant got it, under; the circumstances which have since been disclosed. This was objected to as immaterial and incompetent and the objection sustained. The defendant’s counsel offered to show by the witness that he was acquainted with the value of such paper, and that this paper was not worth thirty-five cents on the dollar, in his opinion. This was also excluded.

The rule is that where promissory notes or commercial paper is converted, the measure of damages is the nominal or face value of the paper, unless it be reduced by showing payment, insolvency or some fact to invalidate the paper. Ingalls v. Lord. 1 Cowen, 240; Allen v. Boyd, 20 Wendell, 321; Becker v. Matthews, 5 Sandford, 439; Thayer v. Manley, 8 Hun, 550. It is undoubtedly proper to show the value of property by witnesses who are familiar with the property and its value; but as to choses in action, such as commercial paper, a different rule exists. The paper itself is of no value, but it is the evidence of debt or an agreement to pay. The question is therefore as to the ability to pay of the maker or person who, by the terms of the instrument is to pay the same, and as to whether the instrument is valid. It would have been competent for the defendant to have shown the insolvency of Loomis & Woodworth, or that the draft had been paid, or that it' was worthless by reason of a valid defense existing thereto. But in the absence of such evidence, the presumption is that the paper was worth the amount called for by it. Potter v. The Merchant's Bank, 28 N. Y., 641-655. It appeared, as we have seen, that Loomis & Woodworth had interposed an answer in the action brought by the defendant to recover the amount of the draft. The defendant offered the summons and complaint and answer in evidence; they were objected to and tbe objection was sustained by the court and the defendant excepted.

We are inclined to the opinion that this evidence was competent. The defendant had the right to show that an action had been brought, that a defense had been interposed, what the defense was, and that it was true. If Loomis & Woodworth had any defense to the draft, such defense would necessarily be disclosed by the answer. After the defense had been disclosed, the defendant might have shown that it was true, and that the draft was consequently worthless. It appearing that an answer had been interposed by Loomis & Woodwor-th, they were bound by the defense set forth in their answer. The defendant in this action had the right to'show what the defense was, for the purpose of establishing the fact that it was not attempting to show or rely upon defenses not actually made, by the parties charged with its payment.

For these reasons the judgment should be reversed, and anew trial granted, with costs to abide the event unless the plaintiff stipulates within twenty days that the judgment may be reduced in the amount of the Loomis & Woodworth draft, to wit, $988.63, and interest thereon from' December 19th, 1882, in which event the judgment be so modified, and as so modified, affirmed, without costs of this appeal to either party.

So ordered.

BRADLEY & ANGLE. J J., COnCUl’.


text:
    Frank Jenkins v. John Young and Anthony Le Fevre.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1887.)
    Ejectment — Proceedings foe sale of land foe payment of decedent’s debts — Irregularity.
    In an action of Ejectment brought by one of the heirs of W. J. to recover possession of land of which he died seized in September, 1803, defendant alleged that the land was sold pursuant to an order of the Surrogate’s Court to pay the debts of W. J., deceased, and that defendant derived title through the purchase at such sale. In June 1871, proceedings were instituted by the administrator of W. J. before the Surrogate, which were regular except in the omission to appoint guardian for plaintiff then a minor of the age of eighteen years. Laws 1S63, ch. 362, § 6, then in force provided that minors should be served with the order to show cause, and special guardians appointed for them, in the same manner as citations were required to be served, and special guardians appointed on the proof of wills. The order to show cause was personally served on plaintiff. On the return day before any further proceedings it was the surrogate’s duty to appoint a special guardian for plaintiff.

      Meld, that formerly such omission was held to be a jurisdictional one and to render the proceedings void as against such parties. That a judgment of a court of general jurisdiction was rendered voidable merely bv the omission to appoint a guardian ad litem of an infant defendant served with process, his remedy is by direct proceedings to reverse it or set it aside. By Laws 1850, chapter 82, § 1, an omission like that in question is made of like effect with that of an omission of that nature in proceedings before a court of general jurisdiction, that the proceedings therefore were not void but voidable and cannot successfully be attacked collaterally by means of an action of ejectment.

      MotioN by the plaintiff for a new trial on exceptions taken at Ontario circuit and ordered beard at general term in first instance.

      John D. Lynn, for plff.; Frank Bice, for deft.
   Bradley, J.

The action is ejectment to recover the possession of land of which William Jenkins died seized in September, 1863.

The plaintiff is one of his heirs and as such seeks to recover. The alleged defense is that the land was sold pursuant to an order of the surrogate’s eourt of Ontario county, to pay the debts of William Jenkins deceased, and that the defendant derived title through the purchaser at such sale.

It appears that in June, 1871, proceedings were, instituted by the administrator, etc., of the decedent before such surrogate, and that they were in all respects regular, and as required by the statute for the purposes in view, except that no guardian was appointed for the plaintiff, who was then a minor of the age of eighteen years.

The only question is whether that omission rendered the proceedings and sale void. The trial court held it did not, and directed a verdict for the defendant.

The statute in force when they were had, provided that minors should be served with the order to show cause, and special guardians appointed for them in the same manner as citations were required to be served, and special guardians appointed on the proof of wills (Laws of 1863, ch. 362., § 6),‘ which provided that service should be made on the persons interested, and if any one is a minor, under the age of fourteen years, service should also be made on his father, mother, or guardian, and if there should be none in the state, then upon any person having the care and control of such minor, or with whom he resided, or in whose service he was employed. (Laws of 1837, ch. 460, § 8., as amended by Laws of 1863, ch. 362, § 1.

The order to .show cause was personally served upon the plaintiff. On the return day of the order to show cause, or before taking any further proceedings, it was the duty of the surrogate to appoint a special guardian for the plaintiff, to take care of his interests. Bid. 0

The failure to appoint guardians for infants in such cases under former statutes was held to be a jurisdictional omission, and to render the proceedings and sale void as against them. Bloom v. Burdick, 1 Hill, 130; Schneider v. McFarland, 2 N.Y., 459.

The proceedings referred to in those cases were had under 1 R. L. of 1813, ch. 68, which required the appointment of guardians for infants on the presentation of the petition, § 31. Such was the requirement of 2 R. S., 100, § 3. And no change was made in tbat respect by the Laws of 1837, ch. 460. The appointment of a guardian for an infant was a preliminary requisite to the making and service of the order to show cause and bring him into court, and therefore the court was not permitted to, and could not acquire jurisdiction of the person of the minor, without pursuing such initiatory prescribed method of providing for service on him. The latter statutes before referred to have removed such preliminary requisite and have directed service of the order to show cause on the minor over fourteen years of age, in the same manner as upon an adult. He is in like manner brought into court, and the proceeding is commenced. And it is thereafter that the guardian must be appointed to enable him to be heard, and for the preservation of his rights.

While omission to make such appointment is error, and renders the proceedings irregular and voidable, the question whether it goes to the jurisdiction so as to render them invalid, and subjects them to defeat from collateral attack, requires further consideration.

The general rule is, that a statute providing for proceedings having the effect to divest title to property must in all material respects be strictly pursued to render such result effectual. Cruger v. Dougherty, 43 N. Y., 107; Merritt v. Portchester, 71 N. Y., 309.

A judgment of a court having general jurisdiction is not rendered void by the failure to appoint a guardian ad litem, of an infant defendant who has been served with process, but is voidable only. McMurray v. McMurray, 66 N. Y., 175; Austin v Charlestown Female Seminary, 8 Met., 196; S. C., 41 Am. Dec. 497. Porter v. Robinson, 3 K. (Marshall), 253, S. C., 13 Am., De. 153; Joyce v. McAvoy, 31 Cal., 273.

And his remedy is by direct proceeding to reverse or set it aside. The reason is that by the service upon him of the proper process in the manner prescribed by law, jurisdiction of his person is acquired, and the omission to appoint for him a guardian is a defect or irregularity merely in the action or proceeding. This failure to proceed as directed may ordinarily have a greater and invalidating effect upon statuory special proceedings. But by “ an act for the protection of purchasers of real estate upon sales by order of surrogates,” it is ^provided that such sales “ shall be deemed and held as valid and effectual as if made by order of a court having original general jurisdiction. And the title of any purchaser at such sale made in good faith shall not be impeached or invalidated by reason of any omission, error, deficit, or irregularity in the proceedings before the surrogate or by any allegation of want of jurisdiction on the part of such surrogate, except in the manner and for the causes that the same could be impeached or invalidated in case such sale had been made pursuant to the order of a court of original general jurisdiction. Laws of 1850, ch. 82, § 1,

As before remarked, jurisdiction was obtained of the person of the plaintiff by the service, which appears to have been properly made on him, of the order to show cause. And by the statute last referred to the effect to be given to the proceeding and sale was the same as that which results from the direction of a court of original general jurisdiction as applied to a° matter within such jurisdiction. .And as a consequence the proceeding and sale were not void, but voidable, and cannot be successfully attacked eollattrally by means of. an action of ejectment, This question did not necessarily arise in Havens v. Sherman, (42 Barb, 636). In the proceeding there under consideration the time to show cause, as directed by the order, between that of its issue and return day, was less than the statute permitted (2 R. S., 101, § 5) which was held fatal for want of jurisdiction.

The court there also remarked that the omission to appoint guardians for the infant heirs, would render the sale void, and cited the Bloom and Schnieder cases supra. It will be observed that the proceeding and sale in question in Havens v. Sherman, were had under the statute prior to that of 1868, before referred to, and when the appointment of guardians in such cases was to be made on the presentation of the petition, or before any further proceedings were had.

And that such remarks of the court may have been applicable to that case, and not necessarily so to the one at bar. And the same be said of Chandler v. Northrop. (24 Barb., 129.) The doctrine of those cases is the familiar proposition that when a statute prescribes the mode of acquiring jurisdiction it must be strictly pursued, or the proceedings is void, and must fall for want of it.

These views are in harmony with that expressed in Matter of Becker (28 Hun, 207), and lead to the conclusion that the motion for new trial should be denied, and judgment ordered for the defendant on the verdict.

Lewis, J., concurs; Haight, J., not voting.


author: Smith, P. J.

text:
    William Keeler, Resp’t, v. Maria Dennis, Appl’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1887.)
    Pbactice — Opening default — Effect of refusal of application to POSTPONE TRIAL.
    The right to set aside a default is not affected by the fact that the trial court refused to postpone the trial. The motion not being regarded as an appeal from that order.
    Appeal from an order of the Monroe special term, opening a default taken at the Cayuga circuit, and setting aside the verdict there rendered and the judgment entered thereon.

      J. <f T. H. Courtney, for appl’t; A. P. Smith, of counsel. S. Hdwin Pay, for resp’t; II. V. Howland, of counsel.
   Smith, P. J.

The affidavits used for and against the motion to open the default presented a conflict in some respects which the special term was called on to decide, and as the decision cannot be said to be clearly against the weight of evidence, it is conclusive. Assuming as we must, therefore, that the moving affidavits are substantially true, a satisfactory case was made for granting the motion, the details of which it is not necessary to state.

The order made at the circuit refusing the plaintiff’s application to postpone the trial, does not stand in the way of the motion to open the default taken subsequently at the same circuit. The moving papers present some material facts in addition to those stated on the application to postpone. And it has been held that the right to set aside a default is not affected by the fact that the trial court refused to postpone the trial, the motion not being regarded as an appeal from that order. Cahill v. Hilton, 31 Hun, 114; S. C. aff’d, 96 N. Y., 675.

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

Barker, Haight and Bradley, JJ., concur.

So ordered.


author: Angle, J.

text:
    Matter of Philo M. Shepard.

      (Supreme Court, General Term, Fifth Department,

      Filed January 25, 1887.)
    Oedee op aeeest — Code Civ. Peo., § 111.
    A party having been imprisoned under an order of arrest in a civil action for more than six months, a writ of habeas corpus to inquire as to the cause of his detention having been issued, asked for his discharge under Code Civ. Pro., § 111. Upon a hearing on the writ he was remanded to custody of the sheriff, and the order affirmed on appeal.
    Appeal by Shepard from order of Erie special term, remanding him to custody of sheriff after hearing on habeas corpus as to cause of his imprisonment.
    Shepard was arrested by the sheriff of the county of Wayne, N. Y., Dec. 19, 1885, upon an order of arrest granted in an action in the Supreme Court, in which the New York Central and Hudson River R. R. Co. was plaintiff, and Shepard was defendant. He was, under such order, confined in Wayne county jail until Feb. 19, • 1886, when he was brought before the Erie county court of sessions to plead to an indictment, and he was then delivered into the ocustody of the sheriff of Erie county under an order of said court of sessions. He was before the Erie special term upon habeas corpus, issued June 29,1886, to inquire into the cause of his detention, and after hearing he was remanded to the custody of the sheriff by- the order appealed from.

      P. K. Weaver, for deft; Charles S. JPooley, for N. Y. C. & H. R. R. Co.
   Angle, J.

Shepard having been imprisoned more than six months under an order of arrest in a civil action, asked for his discharge under Chap. 672, Laws of 1886, (Sect. 111, Code of Civil Procedure), entitled “ An act to amend, the Code of Civil Procedure.” The court at special term denied his application for reasons stated in the opinion of Justice Collett. (10 Civ. Pro. Rep., 153; S. C., 1 N. Y. St. Rep., 77.)

The case of The People ex rel. Roding, 10 Civ. Pro. R., 174, note, at special term, and the case of Warshauer v. Webb, 10 Civ. Pro. R., 169, at special term of New York city court," are in the same direction. Adverse to these is The People ex rel. Lust v. Grant, 10 Civ. Pro. R., 158; S. C., 1 N. Y., St. Rep., 537.

The discussion which the point has undergone makes it unnecessary to go over the examination and discussion again in a written opinion.

Our conclusion is that the order be affirmed.

Order affirmed with $10 costs and disbursements.

All concur.