text:
    ANSONIA BRASS AND COPPER COMPANY, Appellant, v. GEORGE BABBITT as Sheriff of Jefferson County, Respondent.

      Sheriff — liable for release of levy on property of judgment debtor, on his being adjudged a bankrupt.

    The plaintiff recovered a judgment against one Prink for $346.04, and on the 26th of June, 1873, under an execution issued thereon, the sheriff levied on sufficient personal property to satisfy the execution. After the levy, proceedings in bankruptcy were taken against Frink, and the sheriff released the property levied on and returned the execution unsatisfied. On a suit against the sheriff therefor, he set up as a defense:
    1st. That pending proceedings in bankruptcy he (the sheriff) was enjoined from further proceedings on the execution.

      Held, that this was no defense. For if it applied to the property levied on, the injunction neither commanded or authorized the sheriff to release the same or discharge it from his levy. It simply restrained him from making cmy disposition of it. But it 'did not apply to the property levied on, as when a levy has been made before the commencement of proceedings in bankruptcy, the possession and legal title are in the sheriff for the purpose of satisfying the process in his hands, and lie had the right to go on and sell the property, being accountable only lor the surplus, if any, to the bankruptcy court.
    2d. That the plaintiff directed the sheriff to retain the execution till requested to make a return thereof, and subsequently directed him to make a return immediately.

      Held, that this was no excuse for discharging the property and releasing it from custody, especially as the direction was given upon the sheriff’s advice and statement, that he would in the mean time hold his levy.
    3d. That the United States marshal, by virtue of a warrant issued to him in said bankruptcy proceedings, and before the return of the execution, took possession of the property levied on.

      Held, that this was no defense; that the taking by the marshal, even if done against the consent of the sheriff, was without authority and illegal, the sheriff having both the legal title and possession of the property; that, even supposing a yielding up thereof to a ms major would have afforded an excuse, the sheriff surrendered the property upon the mere exhibit of the warrant and demand of the marshal. The marshal had no authority to take it, and an application by the sheriff to the District Court which issued the warrant would doubtless have resulted in an immediate release of the property, or of an amount thereof sufficient to have satisfied the execution; and it was the sheriff’s duty to have resorted to all reasonable means to protect his levy, instead of surrendering it without objection or remonstrance.
    4lh. That the plaintiff had proved the claim set forth in the complaint, in the proceedings in bankruptcy, before the commencement of his suit against the sheriff, and a dividend had been duly declared to the plaintiff on such proof of claim.

      Held, that although section 21 of the bankruptcy act provides that “ no creditor proving his debt shall be allowed to maintain any suit at law or in equity therefor against the bankrupt, but shall be deemed to have waived all right of action against the bankrupt, and all proceedings already commenced or unsatisfied judgments already obtained thereon against the bankrupt shall be deemed to be discharged and surrendered thereby,” yet the proof of the judgment in the bankruptcy court (admitting it was legally done) did not in any manner affect the liability of the sheriff for the previous unauthorized release of the property levied on. The intent of the section was only to prevent future proceedings against the bankrupt or his estate. The liability of the sheriff for releasing the property was a wholly collateral liability, arising from a breach of official duty, and did not constitute in this case any claim or security which could be enforced by the assignee in bankruptcy, to whom the property levied on had been delivered.
    Appeal from a judgment against the plaintiff entered on the verdict of a jury, under direction of the court.
    This action was commenced in June, 1874, and came to trial before Judge HardiN and a jury, at Jefferson Circuit, November, 1875, when the evidence disclosed the following facts :

      In June, 1873, the plaintiff issued to the defendant an execution against the property of one Hernán H. Frink, and under it the defendant levied upon property of Frink sufficient to satisfy the execution, on the 26 th day of June, 1873.
    August 2d, 1873, a petition in bankruptcy was filed against Frink and he was adjudicated a bankrupt August 15th, 1873.
    August 4th, 1873, an order of the bankruptcy court was served on the defendant, restraining him, “ until the further order of the court, from making any transfer or disposition of any of the property of the said Heman H. Frink.”
    In consequence of being served with this order, the defendant did not sell the property levied upon, as he had advertised to do.
    August 8th, 1873, the defendant wrote to the plaintiff’s attorney for permission to retain the execution .beyond the sixty days, in order that he might retain his levy, and the attorney replied authorizing him “ to retain the execution till requested to make a return.” •
    The defendant (at what precise time was not shown; though it would appear in August, 1873), voluntarily released his levy and surrendered possession of the property to the United States marshal, who demanded and received it by virtue of the general warrant directing him to take the property of the bankrupt, and turned it over to the assignee in bankruptcy early in October, 1873.
    November 13th, 1873, the plaintiff made a deposition stating its claim against Frink, which was sent to the register in bankruptcy having charge of Frink’s case, and by him on the 12th of March, 1874, handed to the assignee, who, with full knowledge that the plaintiff claimed the lien of a levy and intended to hold on to it, and without requesting a surrender of the lien, made no objection to the deposition being treated as a proper proof of debt, or to permitting the name of the defendant to be entered on the list of those who had properly proved debts against Frink and become entitled to the standing of general creditors in the bankruptcy proceedings.
    In September, 1874 (three months after this suit was commenced), the plaintiff made a motion in the bankruptcy court for leave to withdraw or correct its deposition, and the motion was denied.

      The plaintiff never took any part in the bankruptcy proceedings, except to make the deposition and ask leave to withdraw or correct it, after hearing that it had been treated as a proof of debt.
    Payment of a dividend declared in the bankruptcy proceedings March 12th, 1814, was offered the plaintiff on its claim, May 1st, 1874, on condition of surrendering its lien ; but the plaintiff declined to surrender its lien or accept the dividend.
    May 18th, 1874, the defendant was requested to return the execution, and on the twentieth he made the following return:
    I certify that on the 26th day of June, 1873, I levied the annexed execution on the personal property of defendant, and advertised the same for sale; that before the day of sale, the defendant was put in bankruptcy and I was restrained from further proceedings thereon by an order of the United States District Court for the northern district of New York. I have held said execution until the present time by direction of the plaintiff’s attorney, and he now directs me to return the same, nothing having been collected.
    The judge directed a verdict for the defendant, and from the judgment entered upon that verdict the plaintiff appealed.

      Marshall P. Stafford, for the appellant.

      A. E. Kirby, for the respondent.
   Taloott, J.:

This is an appeal from a judgment for the defendant on a verdict rendered at the Jefferson Circuit by direction of the court. The plaintiff, in June, 1873, recovered a judgment against Heman EL Frink for $346.04, and on the 25th of June, 1873, by its attorney, issued an execution thereon to the sheriff ot Jefferson county. On the 26th of June* 1873, the sheriff levied upon personal property of the defendant sufficient to satisfy the execution, and this action is founded upon the allegation that the sheriff illegally released the property levied upon and returned the execution wholly unsatis-ñed. The defenses set up are:

First. That after the levy, and on the 2d of August, 1873, a petition in bankruptcy was filed against said Frink in the United States District Court for the northern district of New York. That on the 15th day of August, 1873, Frink was duly declared a bankrupt ; and that after the filing of the petition and pending the proceedings in bankruptcy the defendant was, by the said District Court, enjoined from further proceedings on the execution.

Second. That the plaintiff directed the defendant to retain the execution till requested to make a return thereof, and subsequently directed him to make a return immediately.

Third. That the United States marshal for the northern district of New York, by virtue of a warrant issued to him in said proceedings in bankruptcy, and before the return of the execution, took possession of the property levied on.

Fourth. That the plaintiff proved the claim set forth in the complaint in the proceedings in bankruptcy, before the commencement of this suit, and that a dividend has been duly declared to the plaintiff on such proof of claim. These various defenses were relied upon by the defendant upon the trial, and upon one, or all of them, a verdict was directed for the defendant. The injunction order in the proceedings in bankruptcy is set forth in the case, and for several reasons it affords no justification to the sheriff for releasing the property which had been previously levied upon by virtue of 'the plaintiff’s execution.

First. If it applied to the property levied upon it neither commanded nor authorized the sheriff to release the same or to discharge it from his levy. It simply restrained him from making any disposition of it until the further order of the court.

Second. It did not apply to the property which was in the custody of the sheriff by virtue of his previous levy. The law is well settled by numerous decisions that when a levy has been made before the commencement of proceedings in bankruptcy, the possession and legal title are in the officer making the levy for the purpose of satisfying the process in his hands; and he has the right to go on and sell the property, being accountable for the surplus, if any, to the bankruptcy court or its assignee. (Bump on Bankruptcy [8th ed.], chap. 12, p. 206; Matter of Bernstein, Nat. Bk. Reg., sup., 43 ; Marshall v. Knox, 16 Wall., 551; 8 Nat. Bank. Reg., 104; Smith v. Mason, 14 Wall., 419.) It would not have been a violation of the mandate of the court in bankruptcy had the sheriff proceeded to sell the property on the execution. It was not, in law, the property of the bankrupt, except so far as the possible surplus was concerned, as to which he had an equitable interest.

The direction of the plaintiff’s attorney to retain the execution till requested to return the same, afforded no excuse for discharging the property and releasing it from custody, especially as this was done upon the advice and request of the sheriff, and the statement that he would, in the mean time, hold his levy. (See the letter of defendant to the attorney for the plaintiff, dated August 8, 1873.) The claim that the United States marshal took possession of the property levied on affords no excuse to the sheriff. The taking of the property by the marshal, even if done against the consent of the sheriff, was without authority and illegal, for the reasons heretofore assigned to show that the injunction order did not apply to the property in the custody of the sheriff under his previous levy. There seems to be no foundation in the evidence for the suggestion that the delivery up of the property to the custody of the marshal was a necessary yielding to a vis mayor, supposing this would have afforded an excuse. The -sheriff relinquished the custody of the property upon the mere. exhibition of the warrant and upon the demand of the marshal. The marshal had no authority to take the property levied on, and doubtless an application by the sheriff to the District Court which issued the warrant in bankruptcy would have resulted in an .immediate release of the property levied on, or at least of an amount thereof sufficient to have satisfied the execution. It was the duty of the sheriff to resort to all reasonable means to protect his levy, instead of which he appears to have surrendered the property without objection or remonstrance. The precise date of the surrender of the property by the sheriff is not stated in the case, but from the proceedings and papers which were put in evidence for other purposes, it seems to be evident that the surrender by the sheriff, and the taking possession by the marshal, must have been in the month of August, 1873. The plaintiff undertook to prove its debt upon the judgment in the bankruptcy court in November, 1873. The liability of the sheriff to the plaintiff was incurred when he surrendered the property levied on, in August. It is claimed that the proof of the debt in bankruptcy released the cause of action against the sheriff. This point, though not the ground upon which the verdict at the Circuit was directed, seems to present the most serious, and perhaps doubtful, question in the case. The bankrupt law, in the twenty-first section, provides that no creditor proving his debt or claim shall be allowed to maintain any suit at law or in equity therefor against the bankrupt, but shall be deemed to have waived all right of action against the bankrupt, and all proceedings already commenced, or unsatisfied judgments already obtained thereon, shall be deemed to be discharged and surrendered thereby.”

And the twenty-second section provides that the proof of a debt must set forth whether any, and what, securities are held therefor, or must state that the claimant has not, nor has any person for his use, received any security or satisfaction therefor.

There is no doubt upon the authorities, that if the plaintiff had proved its debt in due form while the sheriff had in his custody the property seized by him upon the execution, it would have been necessary to set forth such facts in the proof of the debt, and the assignee in bankruptcy would be subrogated to the plaintiff’s rights in reference to the property so in the custody of the sheriff. But it is to be borne in mind that what is claimed as proof of the debt in the bankruptcy proceedings was not made until long after the sheriff had parted with the custody of the goods levied on, and they had passed under the control, in fact, of the assignee, and the only security which the plaintiff had, so far as the sheriff was concerned, was the collateral liability of the latter for releasing the goods. It is noticeable that the alleged proof of the plaintiff’s debt wholly omits to state that he has any security therefor other than that offered by the judgment itself, and wholly omits to pursue the statute by negativing the fact that he, or some one in his behalf, has received security. Waiving, for the present, the question of the defective form of the proof, did the proof of the plaintiff’s claim in bankruptcy discharge the right of action against the sheriff? If it did, it so operated by virtue of the provision of the twenty-first section which declares that all unsatisfied judgments shall be deemed to be discharged and surrendered thereby. Upon a careful examination of the provisions of the section it will be seen that the apparent intent of the provisions therein contained are only to prevent future proceedings against the bankrupt, or his estate, and it answers the intent of the statute to hold that the judgment is to be deemed discharged and surrendered so far as the bankrupt and his estate are concerned, as to any further proceedings thereon against them. An indorser is not discharged by proof of the debt against the maker in bankruptcy. (Merchants’ Nat. Bank v. Comstock, 55 N. Y., 29.) Nor does it discharge one collaterally liable for the same debt. (Shellington v. Howland, 53 N. Y., 375.) It wnuld hardly be contended that in ease the holder of a note had obtained a judgment against both maker and indorser, proof in bankruptcy as against the maker would discharge or surrender the judgment so far as the indorser was concerned.

In Shellington v. Howland (supra) the defendant was held liable as a stockholder of a manufacturing corporation under the statute of this State, notwithstanding the creditor had proved his claim against the corporation. True, in that case the creditor had not obtained any judgment against the corporation, and that circumstance was relied on to defeat the recovery against the stockholders under the statute. The court held, however, that the creditor was excused from the performance of the condition precedent prescribed by the statute, by reason of an injunction which had been issued out of the bankruptcy court restraining the prosecution of the suit against the corporation, but it was not suggested that if the creditor had obtained judgment against the corporation, its surrender and discharge under the twenty-first section of the bankrupt law would have in any manner relieved the stockholder from liability. The liability of the sheriff for releasing the levy in this case was not an element of the judgment in favor of the plaintiff against Frink. It was a wholly collateral liability, arising out of a breach of official duty. It did not constitute, in this case, any claim or security which could be enforced by the assignee in bankruptcy, to whom the property levied on had been delivered. And we think that the proof of the judgment in the bankrupt court did not, in any manner, affect the liability of the sheriff for the previous unauthorized release of the property levied on.

There are some questions arising upon the validity of the alleged proof of the plaintiff’s debt; it does not appear that it took any part in the bankruptcy proceedings other than sending to the register the alleged proof, except to move the District Court for leave to withdraw or correct ita proof in bankruptcy, which motion was, for some reason, denied. It had declined to receive the dividend or to assign the judgment. The claim of the defendant is, therefore, that the supposed proof of the debt, ipso faoto, operated as a discharge of the judgment in a collateral proceeding. It seems to be clear, that in order to have such effect the proof must be a formal compliance with the act of congress as to its form. It has already been noticed that the supposed proof did not comply with the act of congress, in the particular that it did not contain any statement that neither the creditor, nor any one in his behalf, had received any security. Perhaps this omission would not prevent the proof from operating as a discharge of the judgment. But there seems to be a defect in the proof which was fatal to the operation of the bankrupt law upon it, and because of which defect it can be truly said that the plaintiff never did prove its debt. The plaintiff was a corporation in the State of Connecticut. The bankrupt law provides (§ 22) that proof of debts, by or in behalf of a non-resident of the district where the bankruptcy proceeding is pending, must be made before a register in bankruptcy in the district where the creditor resides, or before a commissioner appointed by the Circuit Court.

The supposed proof in this case purports to have been made before a register in bankruptcy in the southern district of New York. It was made by one Jethro W. Wheeler, claiming to be the cashier of the plaintiff, who does not state that his own residence is in the southern district of New York. It would therefore seem that, in fact, no proof was made, of the debt according to the provisions of the bankrupt law, and that the mere filing of the paper called proof, not verified according to the provisions of the bankrupt law, was inoperative.

It is quite probable that the bankrupt court could have ordered this mistake to be amended, or that if the plaintiff had taken any action on it he might be estopped. But as it is insisted that the plaintiff has lost its rights by the mere filing of the paper in question, it seems to be a sufficient answer to say that the paper not being proof of a debt within the provisions of the bankrupt law, could not, ex proprio vigore, operate to discharge the judgment or levy. We think the judgment should be reversed and a new trial ordered.

Present — Mullin', P. J., Smith and Taloott, JJ.

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


source: Caselaw Access Project

author: Taloott, J. :

license: Public Domain

text:
    JOSIAH H. HELMER, Appellant, v. DANIEL B. ST. JOHN and others, Executors, etc., of WASHINGTON HUNT, Deceased, Respondents.

      Agency — revolted by death— Obligation created aft&r death of principad— not enforceable against his representatives.

    An agreement was executed by certain shareholders of a manufacturing company, reciting, in substance, that in order to raise money to carry on its business, notes should be made from time to time, and indorsed by one or more of them, and that in case any of the indorsers of such paper should incur any loss by reason thereof, each should pay his equal proportion thereof. In an action by one of them, who had indorsed and paid such paper, to recover from the executors of H., another signer of said agreement, his proportion thereof, the complaint not alleging that said note was indorsed in the lifetime of H.

      Held, on demurrer thereto that it did not state facts sufficient to constitute a cause of action, that the agreement, in substance, created an agency by which any shareholder could bind another, if not to the holder of the paper, at least to the other joint signers pf the agreement, as a surety for the corporation; that as an agency is revoked by the death of the principal, the power to bind H, ceased at his death, and as no obligation by indorsement was alleged to have been incurred by the plaintiff during the lifetime of H., and on his death any authority to bind him or his estate ceased, no cause of action was stated.

      EM, further, that the contract imposed a joint, and not a several or joint and several liability, upon the signers of it; that there was no consideration for the agreement except the suretyship; that formerly the liability of any one of the joint contractors was discharged at law by death, and no action could be maintained against his personal representatives in equity where the joint obligation was founded solely upon the consideration of suretyship, but under the modern doctrine, the representatives of H. would probably have been liable to contribute for any liability incurred by the plaintiff, for an indorsement made during the lifetime of H.

      Appeal from an order made at a Special Term sustaining a demurrer to a complaint, interposed on the ground that it did not state facts sufficient to constitute a cause of action.

      I. F. d¿ G. W. Bowen, for the appellant.

      George 0. Greene, for the respondents.
   Taloott, J. :

This is an action against the executors of the late "Washington Hunt, to recover from his estate the sum of about $23,000, alleged to be the proportion for which said estate is liable to the plaintiff, being part of the moneys alleged by the plaintiff to have been paid by him, to take up a promissory note made by the Lockport Woolen and Knitting Company for $116,448.46, and indorsed by the plaintiff for the benefit of the said company. The complaint, for the purpose of showing a liability on the part of Mr. Hunt’s estate, sets up an agreement made in March, 1865, in the following words, viz.:

“ In order to raise money for carrying on the business of the Lockport Woolen and Knitting Company, it is proposed that notes shall be made from time to time, as required for that purpose, and indorsed by one or more of the shareholders, according to circumstances. Therefore, the subscribers, being shareholders in said company, do hereby stipulate and agree, to and with each other, that in case any of the indorsers of such paper shall incur any personal liability or loss by reason of such indorsement, such liability or loss shall be equally divided between the subscribers hereto, and each agrees to pay his equal share or proportion of the same, so that the legal obligation and responsibility shall be the same as if said paper were indorsed jointly by all the undersigned shareholders.
“March 22, 1865.
(Signed) “W. HUNT.
“ J. W. HELMEE.
“ G. W. ROGERS.
“W. T. ROGERS.
“J. H. HELMER.”

The complaint avers that the said The Lockport Woolen and Knitting Company is a manufacturing corporation created under the statute of this State; that the persons who signed said agreement were shareholders in the said corporation; that 'Washington Hunt continued to be such shareholder until his death, and the other parties still continue to be such shareholders. The complaint then avers the making of the note in question, on or about the 1st day of July, 1873, bearing date on that day, payable to the order of the plaintiff, which the said plaintiff then and there, “ under and in pursuance of the provisions of the said agreement, and for the benefit of the said corporation,” indorsed. The complaint then sets forth that the plaintiff was charged as indorser of the note, and paid the same, and that the corporation has not paid the same, or any part thereof; that Washington Hunt died in February, 1867, leaving the defendants executors of his will, and that letters testamentary were duly issued to them, and they assumed the duties of such executorship, and that as such executors they are liable to pay the plaintiff thé one-fifth of the loss incurred by the plaintiff by the payment of the said note. The second count is substantially like the first, except that it avers, in substance, that the large note paid by the plaintiff was the aggregate of various notes made by the corporation and indorsed by the defendant to raise money for the benefit of the corporation, which had been renewed from time to time. The complaint does not allege that any of said previous notes were made or indorsed in the lifetime of Washington Hunt.

The defendants demurred to each count of the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained at the Special Term and the plaintiff appeals from the decision. We think the contract set up in the complaint imposed a joint, and not a several or joint, and several, liability upon the signers of it. It expressly declares that the legal obligation and responsibility shall be the same as if said paper were indorsed jointly by all the undersigned shareholders.” True, it declares that the “liability or loss shall be equally divided between the subscribers, and each agrees to pay his equal share or proportion of the same.” This is a precise statement of what the liability of each of the other subscribers would have been to the one who should pay the note, provided it had been jointly indorsed by all the signers of the agreement, and does not, in any manner, vary that portion of the agreement to the effect that the legal obligation and responsibility shall be the same, as though the paper were indorsed by the signers jointly. It- is, in fact and substance, an agreement to indorse jointly such notes as are specified. The action is on the agreement. It does not arise from the indorsement and cannot be founded thereon. There is no liability to indemnify the plaintiff, except by virtue of the agreement. There was no consideration for the agreement, except the suretyship. It was a joint agreement to become sureties for the corporation. Since the obligation to indemnify the plaintiff is founded wholly on the agreement, it is therefore an action to enforce that agreement against the executors of one of the joint contractors. In such a case the liability of any one of the joint contractors is discharged at law by death, and no action can be maintained against his personal representative in equity, where the joint obligation is founded solely upon the consideration of suretyship. This is well settled. (Getty v. Binsse, 49 N. Y., 385.) Indeed, it was held by the Maryland Court of Appeals (Watson's Representatives v. Riley’s Admrs., 2 Harris & Gill, 305), that a joint surety who had been compelled to pay money upon the joint contract of suretyship could not recover against the representative of his deceased co-surety, although the obligation to pay arose out of the joint contract.

This, however, is not the modern doctrine. If, therefore, any liability had been incurred by the plaintiff for an indorsement made during'the lifetime of Mr. Hunt, the personal representative of the latter would probably have been liable to contribute to the discharge of the debt. But what seems to be, perhaps, a more satisfactory answer to the claim of the plaintiff is founded upon the principles of the law of agency, and we are inclined to place our decision of this case more especially upon this latter ground. The agreement was, in substance, an authority to any shareholder of the company to pledge the responsibility of Mr. Hunt,' as a surety for the corporation, upon any paper which should be indorsed by such shareholder, within the purview of the agreement. In substance it created an agency by which any shareholder could bind Mr. Hunt, if not to the holder of the paper, at least to the other joint signers of the agreement, as a surety for the corporation. An agency is revoked by the death of the principal. (Story on Agency, § 488, and cases cited.) .The power to bind Mr. Hunt then ceased at bis death. No obligation by indorsement was incurred during his lifetime; and after that any authority to bind him or his estate for any such purpose ceased. We are, therefore, of the opinion that the complaint, which does not aver that any indorsement of the corporation paper was made by the plaintiff in the lifetime of Mr. Hunt, does not set forth any cause of action.

Present — MulliN, P. J., Smith and Taloott, JJ.

Order sustaining demurrer affirmed.


author: MulliN, P. J.

text:
    SOLOMON V. LATTIMER and DAVID B. WINTON, Appellants, v. SEBA A. HILL and others, Respondents.

      Judge's charge — objections to — when they maybe fii'st made, on agypeal — Indorsement — of note— MaMlity on, may be limited by the terms of its delivery.

    Appeal from a judgment in favor of the defendants, entered on the verdict of a jury, and from an order denying a new trial.
    This action was brought against the defendants as makers and indorsers of a promissory note. The indorsers alone defended.
    The making and indorsement of the note was not disputed. The answer contained among other defenses, that the note was indorsed for, and at the request of plaintiffs, plaintiffs at the time agreeing that indorsers should not, nor should either of them, be held responsible for the payment of the note, and plaintiffs would withhold the amount of the note out of moneys plaintiffs were to pay on a building contract, and that plaintiffs paid to the makers of the note upon said building contract, after the note was given and after it became due, more than enough to satisfy said note.
    On the trial at the Circuit, before Dwight, J., defendant Arthur Hill testified that he was present when the note in suit was indorsed by his brother. Winton, one of the plaintiffs, asked him to indorse it; he (the brother) objected a little. Winton told him he need have no fears of being responsible on the note because they were keeping back twenty per cent of the money that was to be paid to the makers of note, to pay parties purchasing material for the bank, to see that they would have their pay, and his signing the note was a mere form that they had to live up to, and could not consent to pay the money unless he signed it.

      Seba Hill, the other indorser, swore to the same state of facts.
    The plaintiffs denied having made the statements testified to by the Messrs. Hill.
    No objection was taken on the part of the plaintiffs to the evidence as to agreement under which plaintiffs received the note.
    On this branch of the defense the court charged the jury that they should consider the evidence bearing upon the transaction at the bank when the note was presented and indorsed, and if they should find that plaintiffs took the note under an agreement not to hold the defendants responsible, but to charge the same in account to the makers, the plaintiffs could not recover.
    The counsel for the indorsers did not, on the trial, except to this part of the charge, but, on the appeal, insisted that that part of the charge above cited was erroneous, and he is now entitled to the benefit of an exception to it, although the evidence in reference to which the charge was given was not excepted to, nor the charge itself.
    The court at General Term say: “ If the charge is erroneous it is the duty of the court to grant a new trial, as the failure to except did not injure the plaintiff.
    There was no evidence they could give that would entitle the plaintiff to recover. (Penfield v. Rich, 1 Wend., 380; Archer v. Hubbell, 4 id., 514; Lawrence v. Ba/rher, 5 id., 301; Benedict v. Johnson, 2 Lans., 94.)
    Although it is well settled that a contract cannot be contradicted or varied by parol, yet it is equally well settled that a party making such a contract, can annex to the delivery of such a contract such conditions as he may deem proper, and if such conditions are not performed he will be discharged from liability thereon. (Benton v. Ma/rUn, 52 N. Y., 570.) Folgbe, J., in this case says : 1 Clearly, it was competent to show the terms upon which the duplicate was delivered, and for the defendant to limit and restrict his liability thereby, and to protect himself by them against any liability. Instruments not under seal may be delivered to the one to whom upon their face they are made payable, or who, by their terms, is entitled to some interest or benefit under them, upon conditions, the observance of which is essential to their validity, and the annexing such conditions to the delivery,- is not an .oral contradietion of the written obligations though negotiable, as between the parties to it or others having notice.’
    It needs a delivery to make the obligation operative at all, and the effect of the delivery and the extent of the opei-ation of the instrument, may be limited by the conditions with which the delivery is made.
    To the parties to the contract it matter's very little, whether the indorser of a note declares verbally, at the time of indorsing the note, that unless certain conditions are performed or certain contingencies hapjxen he will not be liable, or whether, at the time of delivery, he annexes verbally the same conditions. If he gets the benefit of the defense, it is no matter to him in which of the two ways it is attained.
    To hold an indorser to liability when he annexes conditions, by which he is in certain contingencies to be wholly released from liability, would be a gross fraud upon him, and it is on this ground that courts in Pennsylvania hold that the indorser, on proof of the failui’e to comply with the conditions annexed by pai’ol to the indorsement, is held to be discharged. (Byles on Bills, 96, note 1; Prentiss v. Grmes, 33 Barb, 621.)
    In Bruce v. Wriglvb (5 N. T. S. 0., 81), this court held that parol evidence was admissible to show that defendant indorsed such note for the purpose of transferring title only, and upon an agreement with plaintiff that he should not be held liable thereupon.
    The limitation of liability attached itself to the delivery, if it could not restrict the contract of the indoi'sement.”

      J. W. de II. J. JDininny, for the appellants. A. Hadden, for the respondents.
   Opinion by

MulliN, P. J.

Present — MulliN, P. J., Smith and Taloott, JJ.

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


author: Taloott, J.

text:
    THE HOWE MACHINE COMPANY, Respondent, v. JAMES A. FAGAN, Appellant.

      Receipt — when evidence of a promise to pay to another, the money received.

    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury.
    This was an action to recover from the defendant moneys which he had assumed to receive from one Charles Good, a debtor of the plaintiff, to be applied on a note of Good held by the plaintiff.
    The defendant had been an agent of the plaintiff for the purpose of selling its machines, and had sold one to Good. Good had given his note to the plaintiff for sixty-five dollars. Before the maturity of the note Good paid the sixty-five dollars to the defendant, who agreed to apply the same on, and therewith take up, the note given for the machine. The defendant gave Good at the time his receipt as follows:
    “ $65. Eeceived from Charles Good sixty-five dollars to take up machine note. Boonville, December 19, 1872.
    “J. A. FAGAN.”
    There was no promise to pay the money over to the plaintiff proved other than that contained in the writing.
    The court at General Term say: “We think the receipt furnished sufficient prima facie evidence of such a promise within the case of Lawrence v. Fox (20 N. Y., 268).”

      Alfred 0. Ooxe, for the appellant. George F. Danforth, for the respondent.
   Opinion by

Taloott, J.

Present — Mullin, P. J., Smith: and Taloott, JJ.

Judgment affirmed.


author: Mullin, P. J.

text:
    JOHN C. ARMSTRONG and LEWIS DISS, Appellants, v. WILLIAM G. FARGO, President of the American Express Company, Respondent.

      Bmdence — Bkepress company —proof of signatw'e to receipt of

    Appeal from an order denying a motion for judgment on the verdict of a jury, and granting a motion for a new trial, costs to abide event.
    The plaintiffs brought this action to recover of the American Express Company, the value of a package of sewiug machine attachments that they delivered to the company, to be carried to Boston and there delivered to M. J. Palmer on payment of the value of the contents, which was $118.08.
    The defense was, that on the envelope covering the package given to defendant’s agent at Watertown, was a direction in writing to the defendant to deliver to Palmer on receiving $118.08, and the charges for carrying the same, and to reship it if ordered by Palmer; that the package was offered to Palmer, who directed that it be sent to Waterbury, Connecticut. The defendant’s line did not extend to Waterbury, nor into Connecticut. The Adams Express Company had an office at Waterbury, and carried property to and delivered it at that place; that defendant, after the direction given by Palmer, delivered the parcel to the Adams Express Company, taking its receipt therefor, and thus discharged itself of all liability for the property.
    On the trial, the plaintiffs proved the delivery of the property to the defendant to deliver to Palmer, at Boston, on payment of the amount specified on the wrapper and the charges, and subsequently, the money not being received, plaintiffs demanded it and it was not paid.
    The defendant proved the carriage to Boston, tender of the property to Palmer, and the direction by him to send to Waterbury. A receipt was then put in evidence, signed by the receiving clerk of the Adams Express Company, for the parcel, showing that it was received to be carried by it to Waterbury.
    The plaintiffs’ counsel insisted that the execution of the receipt was not proved, so as to bind the Adams Express Company, and hence the defendant had failed to show performance of its contract.
    The court at General Term say : “ The proof on that subject was that it was signed by the clerk of the Adams Company employed to receive and deliver property at its office. He had acted in that capacity for several years. The witness had never seen him write, but he knew the man, and had seen a large number of receipts signed by him for property delivered to other express companies, and from the knowledge thus acquired believed it to be the agent’s signature. This was sufficient proof of the due execution of the receipt. * * * To require each person who delivers property to such an agent to prove the signature to receipts by some person who saw them executed, would be practically impossible after the lapse of a few days or weeks. If the fact is established to the satisfaction of a jury that the receipt is signed by an agent of the company, held out by it, as having authority to bind it, it is enough, however that fact may be proved, if proved by legal evidence.”

      McMa/rtin <& Williams, for the appellants. Edmund B. Wynn, for the respondent.
   Opinion by

Mullin, P. J.

Present — MulliN, P. J., Smith and Taloott, JJ.

Order affirmed.


text:
    JEREMIAH TOOLEY, Appellant, v. CHLOE G. BACON, as Administratrix of the Estate of CHARLES C. BACON, Deceased.

      Party to ti’ansaction — cannot testify as to intention with which act was done — as against the legal representatives of oth&t' party— Code, § 899.
    Appeal from a judgment, entered upon the report of a referee, dismissing the plaintiff’s complaint.
    - The action was brought to recover of Charles C. Bacon the sum of $5,817 and interest from April 15, 1865, and costs, as a balance alleged to have been due at that date for moneys theretofore received by said Bacon for the use and benefit of plaintiff. Charles C. Bacon died and the defendant, as his. administratrix, was substituted as defendant in his stead. On the trial the plaintiff was examined as a witness in his own behalf, and was asked, whether he put any property into the hands of the intestate for the purpose of defrauding his creditors, or with that intent. The defendant’s counsel objected to the question and the referee sustained the objection and rejected the question.
    The court at General Term say: “ The transfer of property from plaintiff to the intestate being assailed as fraudulent, it was competent to ask the witness whether the transfer to the .intestate was made with intent to defraud the creditors of the plaintiff, unless the plaintiff was prohibited from testifying by section 399-of the Code, as it involved a transaction between him and the intestate.
    The intent with which the transfers were made is a mere mental operation, and cannot strictly be called a personal transaction or communication between the intestate and the witness. But when the intent with which an act is done becomes the subject of legal inquiry, it is then, it seems to me, to be treated as a part of the act, and a party to the transaction cannot testify as to the intention with which it was done in an action between him and the representatives of the other party to such transaction.
    The reasons which induced the legislature to exclude the evidence of a party to a transaction when the other party to it is dead, apply in all their force to evidence of the intention with which an act is done, as proof of the act itself.”

      Scott Lord, for the appellant. K JEL. Lamb, for the respondent.
   Opinion by

MulliN, P. J.

Present — MulliN, P. J., Smith and Taloott, JJ.

Order of Special Term affirmed, with ten dollars costs and disbursements.


author: Smith, J.

text:
    THE PEOPLE ex rel. THE ROME, WATERTOWN and OGDENSBURGH RAILROAD COMPANY, Appellants, v. WILLIAM B. DIXON, Supervisor, and WILLIAM F. AUSTIN and others, Assessors of the Town of Richland, Oswego County, Respondents. THE SAME v. THE SAME OFFICERS of the Town of Albion, in same County. THE SAME v. THE SAME OFFICERS of the Town of Sandy Creek, in same County.

      Assessment — certiorari to remew — where property is generally assessed at one-third its ncitnie, in violation of the assessors’ duty — court will not reduce assessment of property assessed at a greater rate, to same proportion.

    Appeal from an order of the Special Term of Oneida county, dismissing writs of certiorari in the above entitled causes.
    In the classified list, delivered by the relators to the assessors of the town of Richland, pursuant to the provisions of section 24 of the act entitled “An act to amend chapter 13 of the first part of the Revised Statutes, entitled ‘Of assessments aud collection of taxes ’ ” (chap. 176 of the Laws of 1851), the relators, in and by the affidavit of their tax agent, stated the true present value of the property owned by them in said town at $24,080. In section 5 of the act of 1851 (chap. 176), it is declared that all real and personal estate liable to taxation shall be estimated and assessed by the assessors at its full and true value, as they would appraise the same in payment of a just debt due from a solvent debtor. In the assessment roll made and duly verified by the assessors of the said town of Richland they assessed the property of the said relators in said town of Richland liable to taxation at the sum of $17,500, being $6,580 less than they were liable to be assessed, upon their own estimate of the value of their real property in said town.
    In the return of the said assessors, they “ say and aver that the true and accurate value of the real estate of the said relators in the said town of Richland, at the time of said assessment, was $52,500, and that they assessed said real estate of said relators in said town at one-third part of its true value, as they did all other property in said town.”
    The relators claimed that their property should have been entered upon said assessment roll at one-third its actual value, and that the assessment roll should be corrected by reducing the amount accordingly, adopting their own estimate of such value as proved before the said assessors, and not disproved by any proper evidence.
    The court at General Term say: “We are thus asked to sanction the illegal acts of these assessors in disobeying the express command of the statute, to assess the property of said town at its full and true value, as they would appraise the same in payment of a just debt due from a solvent debtor; and instead thereof assessing such property at one-third its admitted estimated value, followed by a verification by said assessors annexed to said roll, that such was the true and full value of the property therein assessed, and this is the only relief asked by the relators from the court upon these several writs of certiorari.
    “ This is certainly a bold proposition or request addressed to this court, and one which we must most necessarily reject. We cannot sanction in any manner the great indecorum, to say the least, of these proceedings on the part of these assessors.
    “As the only injury complained of is not a legal injury, and this relator is not in fact assessed for more than the admitted value of its property by its own witnesses and agents, and its only complaint is, really, that other parties not before us, or parties to this proceeding, are not assessed at the same rate with itself, and the relief it asks is utterly inadmissible, it only remains for us to affirm the decision of the court at Special Term in dismissing said writ, with costs.”

      L. J. Domain, for the appellants. 8. 0. Huntington, for the respondents.
   Opinion by

Smith, J.

Present — Mullin, P. J., Smith and Taloott, JJ.

Order of Special Term dismissing writ of certiorari affirmed, with costs.

(Like order in the three eases.)


author: Davis, P. J.:

text:
    ROBERT V. MACKEY, Respondent, v. CHARLES B. AUER, Appellant.
    _ — when the facts alleged justify any relief — though not the relief asked for — will not be sustained.

    A complaint alleged a partnership between plaintiff and defendant; its dissolution; an accounting; a certain sum found due plaintiff; a demand therefor and refusal to pay, and asked judgment for the amount. Held, not to be demurrable, although no promise to pay the amount was alleged.
    It is not sufficient to show that the relief upon certain facts could not be that subsequently asked for by the complaint ; it must be shown that, upon the facts alleged, the plaintiff would not be entitled to any relief at the hands of the court, for the legal or equitable powers of the court are not necessarily controlled by the prayer for relief which the plaintiff adopts, although the relief, where no answer is interposed, cannot go beyond such prayer.
    A cause of action in the Code means any cause of action.
    Appeal from an order made at Special Term overruling a demurrer to the complaint, setting up that it did not state facts sufficient to constitute a cause of action. The complaint set forth that May 2, 1872, the plaintiff and defendant entered into a copartnership and continued the same until July 23, 1873, when it was dissolved by mutual consent of the parties ; that on said last mentioned day they had an accounting of all matters of said copartnership, and an account therefor was duly stated between them, and that thereupon it appeared, and tbe fact was tbe defendant stood and was indebted to tbe plaintiff in tbe snm of $1,032.89, and said sum was on said day due and payable from tbe defendant to the plaintiff, and alleged the neglect and refusal of tbe defendant to pay said sum, though often requested, and demanded judgment for said sum, with interest and costs.

      John H. Dos Dassos, for the appellant.
    The complaint does not state an express, or any promise on tbe part of tbe defendant to pay tbe demand. Tbe rule is well settled in this State, that no suit can be brought at law for any thing relating to partnership concerns, unless there has been a final accounting, a balance struck, and an express promise. (Casey v. Brush, 2 Caines, 293 ; Murra/y v. Bogert, 14 Johns., 318; Halstead v. Sohwetzel, 17 id., 80 ; West-erlo v. Fvertson, 1 Wend., 532 ; Ciarle v. Dibble, 16 Wend., 601 ; Townsend v. Goewey, 19 id., 424; Graham v. Common, 13 How. Pr., 360; At/water v. Fowler, 1 Hall, 180; Koehler v. Brown, 31 How., 235; Pattison v. Bkmchard, 6 Barb., 537; affirmed in 1 Selden, 186 ; Cummings v. Morris, 25 N. Y., 629; Howard v. France, 43 id., 593; Grater v. Bininger, 45 id., 545; Gage v. Angelí, 8 How. Pr., 335, 336.)

      Hamilton Gole, for the respondent.
    Where a partnership has been dissolved and an account stated, an action at law will lie without an express promise to pay. (Rachstraw v. Imber, 1 Holt’s N. P., 368; Wetmore v. Baker, 9 Johns., 307; Bond v. Hays, 12 Mass., 34; Crosby v. Nichols, 3 Bosw., 450 ; At/water v. Fowler, 1 Hall, 180; Hobson v. Curtiss, 1 Starlde’s N. P., 78; Veeney v. Leekie, 13 East, 7; Halderman v. Halderman, 1 Hemp. [Ark.], 559 ; Van Ness v. Forrest, 8 Cranch, 30; Pole v. Phillips, 5 id., 154, opin. of CeaNoh, Oh. J.; Lamalere v. Gaze, 1 Wash. C. Ct., 433 ; Beach y. Hotchkiss, 2 Conn., 428 ; Fanning y. Chad/uoick, 3 Pick., 420, and all the Mass, cases; Ozeas v. Johnson, 1 Binney, 191, and other Pehn, cases; Qrisby v. Nance, 3 Ala., 347; 13 id., 214 and the Ala. cases; Fromont v. Copeland, 2 Bing., 170; Collyer on Part. [3d ed.], § 280; Pars, on Conts., 165.) To sustain the demurrer amounts to a summary dismissal of the complaint. But the complaint cannot bo dismissed if it states any cause of action legal or equitable. The demand for judgment and the form of complaint is immaterial.
   Davis, P. J.:

The complaint alleges that on the 2d day of May, 1872, the plaintiff and defendant entered into a copartnership, and carried on the business of manufacturing hair ribbons under the name of C. B. Auer & Co., and continued such partnership and business till the 23d day of July, 1873, when the firm was dissolved by mutual consent of the parties ; that on said twenty-third of July, the plaintiff and defendant came to and had an accounting of all matters and transactions before that time had between them in said copart-nership, and an account therefor was duly stated between the plaintiff and defendant, and thereupon it appeared and the fact was, that said defendant stood and was indebted to the plaintiff in the sum of $1,032.89, and that said sum was on said 23d of July, 1873, due and payable from the defendant to the plaintiff. It then alleges the neglect and refusal of the defendant to pay said sum, though often requested, and demands judgment for the amount named, with interest and costs.

To this complaint the defendant demurs, upon the ground that the complaint does not state facts sufficient to constitute a cause of action. It is claimed, on the part of the appellant, that the objection is well taken, because no express promise to pay the amount found due upon the accounting between the copartners is alleged. If this point would have been well taken in an action at law under our former system (which it is not necessary to consider), yet it seems clear, upon authority, that it is not well taken now. The distinction between actions at law and suits in equity, as they formerly existed, no longer' prevails. All remedies in courts of justice, whether legal or equitable in their character, are to be sought by actions or by special proceedings; and it is only necessary, therefore, that the complaint should contain facts sufficient to call upon the court to grant relief to the plaintiff, by the exercise of .either its legal or equitable powers; and those powers are not necessarily controlled by the prayer for relief which the plaintiff adopts, although the relief cannot, where no answer is interposed, go beyond such prayer. It follows, therefore, that whenever the complaint contains allegations of fact, which if proved upon a trial after issue of fact joined would entitle the plaintiff to somé relief, either legal or equitable, a démurrer on the ground that the complaint does not state facts sufficient to constitute a cause of action will not be upheld. The defendant cannot demur to the prayer for relief. He must demur to the facts alleged ; and, to sustain his demurrer, he must show that upon those facts the plaintiff cannot have any relief at the hands of the court; and it is not sufficient for him to show that the relief upon such facts could not be that asked for by the complaint. The right to demur is not given by the Code, on the ground that the complaint does not state facts sufficient to entitle the plaintiff to the relief demanded therein; but on the ground that the complaint does not state facts sufficient to constitute a cause of action — that is, any cause of action.

Bringing the complaint in this action to this test, it seems to us clear that the facts stated would, if proven upon the trial upon issue of fact joined, entitle the plaintiff to relief. They show that a partnership was formed at a specified time, and in a, specified business, between the parties to this action ; that the partnership and business continued to a specified time; that then, by mutual consent of the parties, the partnership was dissolved, and that at the time of the dissolution an accounting took place between the plaintiff and defendant of all matters and transactions before that time had in said copartnership, and that an account was stated between them upon which it appeared, and the fact was, that the defendant stood indebted to the plaintiff in the sum of $1,032.89; and that that sum was, on the 23d of July, 1873, due and payable from the defendant to the plaintiff, and that the defendant had neglected, though often requested, to pay it. If the plaintiff had appended to these facts, as the relief demanded, a prayer that the alleged accounting between plaintiff and defendant be adjudged final, and that defendant be decreed to pay to the plaintiff the sum found due upon such accounting, there would seem to be no doubt, that facts constituting a cause of action to which such relief would be applicable are sufficiently stated in the complaint. Hence it follows, that unless we are to uphold demurrers of this kind because of the form of the prayer, or unless we are to fall back upon the rigid rules and technicalities of strict actions at law under the former system, when suits in equity and actions at law had no common but separate and independent tribunals, the demurrer in this case cannot be upheld. These views are sustained in principle, we think, by the judgment of the Court of Appeals in Emery v. Pease (20 N. Y., 62), in which it is said that, “ in determining whether an action will lie, courts are to have no regard to the old distinction between legal and equitable remedies. Those distinctions are expressly abolished by section 69. The suit does not, as formerly, fail because the plaintiff has made a mistake as to the form of the remedy. If the case which he states entitles him to any remedy, whether legal or equitable, his complaint is not to be dismissed because he has prayed for a judgment to which he is not entitled.” And in Johnson v. Kelly (9 N. Y. S. C. [2 Hun], 139), where a demurrer like that in this case was overruled, notwithstanding the fact that the demand for judgment was for a specific amount, with interest and costs. The complaint in that case could very clearly not have been upheld on demurrer, in an action at law under the former system.

For these reasons, and without considering the questions so ably and elaborately discussed by the learned counsel for the appellant, as to whether the complaint in this case would have been good in ap action at law under the former system, or whether it is now good for the reasons stated by the learned judge in the court below, we are of opinion that the demurrer was properly overruled, and the order should be affirmed with costs, and with leave to the defendant to answer over in twenty days on the usual terms.

Beady and DaNiels, JJ., concurred.

Order affirmed with costs, with leave to defendant to answer over in twenty days on the usual terms.


text:
    PETER B. ROSS, Appellant, v. SARAH WOOD and others, Respondents.

      Practice — Perjury in a former suit — not ground for Twinging another action, to retry the same issues — Remedy.
    Issues tried in a former suit cannot be retried in another between the same parties, upon allegations that one of the parties thereto, and her witnesses, conspired together to and did commit perjury in the former, by means of which a verdict and judgment were had against the present plaintiff, then defendant.
    The proper course for the aggrieved party to pursue is to apply for relief in the action itself, by a motion for a new trial on the ground of surprise or newly discovered evidence, or other matter out of which his claim for relief arises.
    To obtain relief by an independent action in a court of equity against a judgment obtained through fraud and crime, it must appear that the party had no remedy at law in the action, and that there had been no fault or negligence on his part. A failure to promptly apply for appropriate relief in the action would be negligence; and that an application had been made without success, would afford no ground for a substantial review of such action, in another suit in a different court.
    Appeal from a judgment in favor of the defendant, entered on a demurrer to the plaintiff’s complaint setting up that it did not state facts sufficient to constitute a cause of action, by direction of the justice at Special Term.
    The complaint alleged that, on the 17th of October, 1867, the plaintiff purchased of one George W. Smith sixteen lots of ground, for the sum of $2,100, and for certain reasons deemed it prudent and judicious to have the deed therefor made to Sarah Wood as grantee. That plaintiff paid $1,500 on the purchase, and procured the said Sarah Wood to execute a bond and mortgage to Smith, for the balance of the purchase money. That afterward, being in a condition to hold title to real estate, he asked the said Sarah Wood to release or quit-claim the said premises to him', which she freely and voluntarily did, on the 29th, of July, 1869. That she never had, and did not then claim or pretend to have, any title to, or interest in the same. That after receiving the said deed from Wood, and having the same recorded, the said Wood then for the first time asserted or pretended any claim to said real estate. That on the 23d of September, 1869, she commenced an action against him, in the City Court of Brooklyn, to set aside her deed to this plaintiff as fraudulent and void and as a forgery, alleging that she never executed the same, to which this plaintiff interposed an answer. That said action was tried before said court and a jury, and thereon the said Sarah Wood falsely testified that the plaintiff acted as her attorney in the transaction, and purchased the lots from Smith for her; that she never executed the deed to this plaintiff, and to various other false facts, and produced as witnesses in her behalf her mother, Nancy Carpenter, her sister Emma Carpenter, her brother George W. Carpenter, and her daughter Henrietta Wood, each of whom gave material evidence on said trial in her favor, and which evidence was, in all its material parts, corruptly and feloniously false, and well known to the said Sarah Wood to be false and untrue when she produced the same in her behalf on said trial, and that her own evidence, and that she produced, was for the purpose of imposing upon and misleading said court and jury, and fraudulently and corruptly thereby to obtain a decision in her favor on said trial, and by that means to cheat this plaintiff, then defendant on said trial, out of his money and property. The complaint further set forth wherein such testimony was false, and alleged that, in consequence and by reason of said perjuries, the jury found a verdict in favor of said Wood on said trial, and the court thereupon rendered judgment setting aside the deed from said Wood to this plaintiff then defendant, and affirming the title of said Wood thereto, to his injury. That the defendants in this action, O’Brien, Winkler and Perez, were grantees, subsequent to the trial, of the premises, and well knew of it and all the proceedings thereon, and that the verdict therein was obtained by willful and corrupt perjury; and the plaintiff demanded judgment that said fraud and perjuries might be inquired into and investigated by the court, and that said judgment and adjudication might be reviewed by the court, and be annulled and canceled and set aside as having been obtained by fraud and perjury of said Wood and her witnesses, and that the plaintiff’s title to said premises might be affirmed and held good and effectual, and that the pretended title of O’Brien, Wink-ler and Perez be set aside as fraudulent and a cloud upon plaintiff’s title, and for such other relief as the court may be pleased to grant.

      L. 8. Ghatfield, for the appellant.

      Rufus L. Soott, for the respondents.
   Davis, P. J.:

The question on this demurrer is, whether the issues tried in a former suit, commenced by Sarah Wood against the present appellant, can be retried in this action upon allegations that the then plaintiff, Sarah Wood, and her witnesses named in the complaint in this action, conspired together to commit and did commit perjury on the former trial, by means of which a verdict and judgment in that action were obtained in her favor. The issue in the former action was tried before the court and a jury in due form, and contested by the appellant; and no fraud is alleged to have been practiced upon that tribunal in any of the proceedings in the action or in obtaining the verdict and judgment, other than is contained in the allegation that the witnesses named in the complaint testified corruptly and falsely on the material issues.

If this action can be maintained to retry the issue upon such allegations, there can be of course no end to litigation. Nothing will hinder the defendants in this action, if the plain tiff shall chance to succeed, from filing their complaint alleging the perjury of the plaintiff and his witnesses as the reason of his success, and from obtaining a retrial of the same issue upon the ground of such perjury. And so, whichever party shall be defeated in the successive experiments, the other will be at liberty to return to the charge ad mfinilMm, till death, exhaustion, or failure of issue or of legal representatives shall terminate the struggle. The remedy of plaintiff must be sought by direct proceedings in the former action and not by a collateral suit in another court, in which the issue tendered is the perjury of witnesses on the trial of such former action.

The court below, on deciding the demurrer, pronounced the following opinion:

“ VaN Yoest, J. It is true, as is argued by the learned counsel for the plaintiff, that a judgment may be questioned on the ground that it was obtained through fraud, contrivance or crime of any description. As was said by AlleN, J., in Dobson v. Pearce (2 Kern., 165):
‘Any fact which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not avail himself at law, but was prevented by fraud or accident, unmixed with any fault or negligence in himself or his agents, will justify an interference by a court of equity.’

The judgment of which complaint is made in this action, and which it is asked ‘ may be anulled, canceled and set aside ’ as having been obtained by fraud and perjury, was recovered in an action in the City Court of the city of Brooklyn, after a trial of the issues therein upon the merits, and was entered upon the verdict of the jury impanelled to try the same.

While the maxims of the law evidently forbid the review of the proceedings, verdict and judgment in that action by an independent proceeding originating in another court, no authority is adduced which would justify such steps upon the allegations of the complaint herein.

In a case of the character above named, -when a trial has been had, and an adverse result has been produced through a fraudulent conspiracy and perjury, the proper course for the aggrieved party to adopt is to apply for relief in the action itself by a motion for a new trial on the grounds of surprise or newly discovered evidence, or other matter, out of which his claim for relief arises, and courts are ever ready to grant relief in the action upon proper cause shown. But it is argued by the counsel for the plaintiff that the demurrer interposed by the defendant is an admission that the verdict and judgment was obtained through fraud and perjury, and upon such admission the complaint should be held sufficient to support this action.

But it must appear, in order to obtain relief by an independent action in a court of equity against a judgment obtained through fraud and crime, that the party had no remedy at law in the action, and that there had been no fault or negligence on his part. A failure to promptly apply for appropriate relief in the action itself would be negligence; and that an application had been made without success, would afford no reason for a substantial review of such action in another suit in a different court.

But again, there are certain well grounded and accepted presumptions, in the light of which the allegations in this complaint must be considered, and which, in view of what is sought to be accomplished by this action, must control. Among these presumptions are the following: That the decisions of a court of competent jurisdiction are well founded, and that facts, without proof of which the verdict could not have been found, were proved on the trial. Furthermore, that the testimony which justified that jury in finding that verdict was true.

The law presumes honesty against fraud, and will presume that a witness has not perjured himself. (Broom’s Legal Maxims, 908-912.)

“And these presumptions are not to be overcome otherwise than by effective evidence, produced and applied in appropriate remedies sanctioned by the rules of law, and the methods of procedure in judicial tribunals.

There should be judgment for defendant on the demurrer, on the ground that the complaint does not set forth facts sufficient to establish a cause of action.”

We adopt this opinion as a correct exposition of the law.

The judgment should be affirmed.

Beady and Daniels, JJ., concurred.

Judgment affirmed.