text:
    Susan Baker, App'lt, v. William Moore, as Executor, etc. Resp’t.

      (Supreme Court, Appellate Division, Third Department,

      Filed April 14, 1896.)

    1. Conversion—What is.
    Where one party advances money to another for a particular purpose, and the latter appropriates it to a different object, the former may recover^ the money so advanced.
    3. Same.
    In such case, a right of action arises in favor of the plaintiff to recover the money she has advanced, without a previous demand therefor, as soon as the defendant’s testator wrongfully and in violation of his contract took the conveyance of the real estate to himself as sole grantee.
    S. Same—Demand.
    Where monev is in the hands of one belonging to another, under such circumstances that it is the duty of the former to pay it over, an action may be maintained therefor without any demand.
    4. Limitation—Demand.
    Where no demand is necessary, the statute of limitations begins to run from the time of the detention of the money by the agent or person acting in the fiduciary capacity.

      5. Same.
    Ignorance by the principal of her rights will not prevent the running of the statute.
    6. Same—Evidence.
    Nor is it material to show that plaintiff's husband, who acted as her agent in making the agreement, had communicated to her the facts as to the contract.
    Appeal from a judgment in favor of defendant.
    J. M. Whitman, for app’lt; King & Ashley (H. Prior King, of counsel), for resp’t.
   PUTNAM, J.

The plaintiff and Abel Scripture, deceased, the defendant’s testator, in the year 1865 entered into a contract to purchase lots 3 and 5, range 9, Dartmouth patent, great tract, situate in Warren county, N. Y. The plaintiff desired lot 3 for “the bark on it,” but did not wish to buy lot 5, which was “ a spruce lot.” It was finally agreed that Scripture should purchase the two lots for $1,500, taking a deed to himself and the plaintiff; she to furnish one-half of the purchase price. Pursuant to such arrangement, in December, 1865, plaintiff advanced to Scripture $300, and in the following spring a further sum of $300. In 1866, and it may be assumed in anticipation of the delivery of the deed of the lots, Scripture, with the knowledge of the plaintiff, sold a quantity of logs from lot 5, for which he received the sum of $700. It was agreed that the balance of the purchase price for said lots—$150—due from the plaintiff, should come out of her share of the sum received for the logs sold, leaving a balance of $200 due on her account of said sale, less whatever sum might be arrears for taxes on 0the lots. It does not appear that this sum was ever paid, or that the plaintiff ever demanded it, or called upon Scripture for an account or settlement in regard thereto. In the transaction the plaintiff’s husband, John P. Baker, acted as her agent, and he was produced and sworn by her as a witness on the trial. The evidence does not show that after advancing the $600 on the purchase price of said two lots, and the agreement with Scripture that the balance thereof should come out of the money received for the logs, plaintiff or her, agent paid any attention to her interest in said lots until four or five years before the trial (probably about 1886 or 1887), nearly twenty years after the transaction. On or about August 22, 1867, Scripture obtained a deed of the said two lots, taking the title to himself alone without the knowledge or consent of the plaintiff, as it is claimed; the deed received by him being recorded in the clerk’s office of Warren county on January 3, 1868. On or about November 28, 1867, Scripture sold 3 for $1,200 to B. P. and F. V. Burhans by deed recorded in the Warren county clerk’s office on the 6th day of January,. 1868; and on or about January 30, 1871, lot 5, for $1,000, to one Ordway,. by deed recorded in the same clerk’s office oh the 27th day of June, 1891. Whether Scripture, in making said purchase, actually used the money which he received from the plaintiff or his own funds, retaining in his possession the sum. advanced by Mrs. Baker, does not appear. Abel Scripture died on the 9th day of February, 1889, 22 or 23 years after the transaction above detailed. A year or two before his death Mr. Baker called upon him for some money on plaintiff’s account. In the conversation Scripture spoke of the plaintiff’s claim being “outlawed.” He said the lots were sold, that he had a right to sell them, and that he would pay over to the plaintiff her share of the proceeds. No action was commenced against the deceased, but after his death a claim, verified on the 23d day June, 1890, was presented by the plaintiff to the defendant, as executor of the said deceased, and the same being rejected, the matter was referred pursuant to the statute. The referee, at the close of the testimony held that the plaintiff’s claim was barred by the statute of limitations, and directed a judgment of nonsuit in favor of the defendant, from which judgment the plaintiff appeals.

It is not claimed by the plaintiff—the deceased having received money from her under an agreement to make the purchase of the lots in question, and take the deed to her and himself, and having, without her knowledge and consent, wrongfully taken it in his own name as sole grantee—that a trust resulted in her favor, enforceable in this proceeding, under principles established in Lounsbury v. Purdy, 18 N. Y. 515 ; Roulston v. Roulston, 64 id. 652; and kindred cases. It is therefore unnecessary to determine whether such a claim, if made, could have been sustained. Counsel for the appellant takes the position that, the defendant’s testator having, as an agent or in a fiduciary capacity, received $600 from Mrs. Baker under a contract to use the same to purchase for her an undivided one-half interest in the lots above mentioned, and having, without her knowledge and consent, wrongfully taken the title thereto in his own name, she, upon the discovery of the facts, was entitled to demand and receive the sum so advanced to him. That such discovery was made shortly before the death of defendant’s testator, and hence that under the provisions of section 410 of the Code of Civil Procedure the claim was not barred by the statute of limitations. It is a well-settled principle that, where one advances money to another for a particular object, and the latter appropriates it to a different purpose, the former may recover the money so advanced. McNeilly v. Richardson, 4 Cow. 607; Darragh v. Ross, 28 St. Rep. 637; Crosby v. Clark, 80 Hun, 426; 62 St. Rep. 56; Dumond’s Adm’rs v. Carpenter, 3 Johns. 183. Therefore the appellant, immediately a„fter the 22d day of August, 1867, when the defendant’s testator, in violation of his agreement,! took the deed of the lots in question, was entitled to the money she liad advanced.

The important question is whether, under the circumstances of. the case, a demand for the return of the money was required to be made by the plaintiff of Scripture before she could maintain .an action therefor. If so, the provisions of section 410 of the Code of- Civil Procedure applied. If no demand was necessary, the plaintiff’s claim was barred after the lapse of six years from the. time of the wrongful act of the deceased in taking a deed of the lots to himself alone. We are of the opinion that the defendant’s: testator wrongfully and in violation of his contract took the conveyance of the two lots to himself as sole grantee, a right of action arose in favor of the plaintiff to recover the money she had advanced, without a previous demand therefor. Scripture’s relation to the plaintiff under the cou'tract was that of an agent. He received her money, and agreed with it to obtain for her a conveyance of an undivided one-half interest in the lots. He acted in a fiduciary capacity. When he wrongfully took the deed, if he used her money to make the purchase, it was a conversion of it, and certainly no demand was required after such a wrongful appropriation of the plaintiff’s property. If he retained $600 in his own possession, he was under an obligation to notify her of the fact that he had not used her funds, or taken the title of an undivided interest in the lots to her, and to return the money which she had advanced. Where money is in the hands of one belonging to another, under such circumstances that it is the duty of the former to pay it over, an action may be maintained therefor without any demand. Mills v. Mills, 115 N. Y. 80; 23 St. Rep. 604; Wood v. Young, 141 N. Y. 211-217; 56 St. Rep. 826; Adams v. Olin, 140 N. Y. 150-157; 55 St. Rep. 257; Hickok v. Hickod, 13 Barb. 632; Catterlin v. Somerville, 22 Ind. 482; Ferguson v. Dunn’s Adm’r, 28 id, 58; Stacy v. Graham, 14 N. Y. 492; Watson v. Walker, 23 N. H. 471. The position of defendant’s testator, under the circumstances, was similar to that of one who had misappropriated. money. Acting in a fiduciary capacity, he had abused his trust. The $600 which the plaintiff sought to recover was not left with Scripture as an ordinary deposit. It was received by him for a specific object,—to buy for her a one-half interest in the two lots,—Scripture agreeing to use it for that purpose. When be took the deed to himself as sole grantee, without the knowledge or consent of the plaintiff, he was chargeable with a gross and fraudulent breach of duty. After such wrongful act he had in his hands $600 of the plaintiff’s funds, which it was his duty to at once return to her, as by such wrongful act he had put it out of his power to use the money for the sole purpose for which he received it. This $600, therefore, after the wrongful and fraudulent act of the deceased, remained in his hands under such circumstances that it was his legal duty to return the money to the plaintiff.

Counsel for the appellant calls our attention to the case of King v. Mackellar, 109 N. Y. 215; 14 St. Rep. 838. The facts appearing in that case were very different from those shown in this. In the,case cited the plaintiff deposited $3,000 with the defendant to invest for her, the deposit being for an indefinite period. The defendant assumed to make an investment which the court of appeals held to be unauthorized, and, in fact, not an investment, tinder this holding the defendant remained in possession of the $3,000 under the original contract by which it was deposited with him for an indefinite period for the purpose of investment. Therefore St was held properly that before the plaintiff could recover the money she must demand "its return. Again, in that case the fdefendani has assumed to take an assignment of a mortgage to the plaintiff and a deed for her "benefit as an additional security. She had received interest on the mortgage for several years, and had in her possession the deed and the mortgage. It was, therefore, necessary for her, before she could maintain an action for the money she had deposited with the defendant, to return or offer to return the mortgage and the deed, and demand the return of her money. In the case under consideration the deposit made by the plaintiff with the defendant’s testator was not for an indefinite period or purpose. Under the contract made it could only continue until Scripture purchased the said lots. If he performed his agreement, and used the money to buy for the plaintiff a one-half interest therein, the deposit would necessarily cease to exist. If he violated the contract, and wrongfully took a deed in which he was named as the sole grantee, his right to hold the money ceased, and his duty was to return it to the plaintiff. No demand was required to entitle the plaintiff to recover the money which the deceased had no right under the contract to retain. Deceased had obtained from plaintiff $600, to the possession of which, after his wrongful act, he was not entitled. See Carr v. Thompson, 87 N. Y. 160-166.

The defendant urges that the referee erred in excluding certain evidence offered by him to show that John P. Baker, agent for the plaintiff, communicated to her the facts as to the contract he had made with Scripture. The evidence so excluded was clearly immaterial. So, also, we think, was the evidence offered to show that the plaintiff had no actual knowledge that the deed of the two lots had been taken to Abel Scripture as sole grantee until after his death. If we are correct in the views above expressed that no demand was necessary for the maintenance of an action by the plaintiff to recover the money in the possession of Scripture after his breach of the contract under which he received it, her claim was barred after the expiration of six years, although she had no actual knowledge of the wrong done by the deceased. It is only when a demand is required that the provisions of section 410 of the Code of Civil Procedure apply. If no demand is necessary, a -party seeking to recover money in the hands of an agent, for which he is entitled to maintain an action, although in ignorance of his title, is not entitled to the benefit of that section. So, in an action to recover a judgment for money on the ground of fraud under the provisions of section 882 of the Code of Civil Procedure, the ignorance of the plaintiff of the fraud perpetrated upon him will not prevent to the running of the statute.

We conclude that the case was correctly disposed of below, and that the judgment should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: MERWIN, J.

license: Public Domain

text:
    Maggie Clark, as Administratrix, etc., Resp't, v. New York Central & Hudson River Railroad Company, App'lt.

      (Supreme Court, Appellate Division, Third Department,

      Filed April 14, 1896.)

    1. New trial—Newly discovered evidence.
    Upon a motion for a new trial on the ground of newly discovered evidence, the evidence of a'witness who saw the decedent approach the crossing and saw him look and listen at the time of the collision, is not cumulative, where there was practically, on the trial, no evidence on the part of the plaintiff as to the conduct and care of the decedent at the time of the collision.
    S. Same,
    In such case, where such new evidence would probably have produced a different result, to the extent that the case would have been sent to the jury, the discretion of the trial court in granting the new trial will not be disturbed.
    3. Same.
    When the order for a new trial is granted by the judge who heard the case, it should not be reversed unless error clearly appears.
    Agpeal from an order granting a new trial.
    Ashbel Green and J. D. Wendell, for app’lt; L. F. Fisher, for resp’t.
   MERWIN, J.

— The in this case to recover damages for the death of her husband, Horatio N. Clark, which was, as she claimed, caused by the negligence of the defendant. In the afternoon of May 7, 1894, at a highway crossing at or near a station of the defendant at Auriesville, in the county of Montgomery, the said Clark, while attempting, with a horse and wagon, to cross the tracks of the defendant, was struck by a train of the defendant and killed. The claim of the plaintiff is, that the defendant was negligent in not given sufficient signals of the approach of its trains. Dyer v. Railway Co., 71 N. Y. 228. At the trial the plaintiff did not produce any witness who was able to testify as to the conduct of the decedent at the time of the collision. At the close of the evidence the court directed a verdict for the defendant on the ground that the evidence was not sufficient to authorize the jury to find that the decedent, as he approached the crossing, looked and listened for the approach of a train. Doubt was expressed as to whether the evidence was sufficient to sustain a finding that defendant was negligent. Several witnesses on the part of plaintiff had testified that they did not hear any signal, while, on the part of the defendant, several witnesses testified absolutely that the bell was rung and whistle blown. Subsequently the plaintiff made a motion for a new trial on the ground of newly-discovered evidence, based upon affidavits and a settled case. The new evidence was that of one Gibbs, who saw the decedent approach the crossing, and saw the collision, and saw the decedent look and listen.. The evidence of Gibbs, as set forth in his affidavit, if it had been given at- trial, would, in connection with, the surrounding circumstances, have made the question of contributory negligence one for the jury to have passed upon. Other new evidence was shown from several persons, to the effect that they could testify positively that the belt was not rung or whistle blown as the train approached. The evidence of Gibbs was not cumulative, for, as held by the court at the trial, there was practically no evidence on the part of the plaintiff as to the conduct and care of the decedent at the timo of the collision. The new evidence as to want of signals was perhaps cumulative, but it might properly have a bearing upon the exercise of the discretion of the court in such case. 3 Grab. & W. New Trials, 1104. The evidence would probably have produced a different result, to the extent that the case would have been sent to the jury. This being so, the trial justice, who heard the motion, though it right to grant a new trial. His discretion should not, I think, be disturbed. In Barrett v. Railroad Co., 45 N. Y. 628, 632, it is said:

v “ Motions to set aside verdicts as contrary to evidence, as well as motions for a new trial upon the ground of newly-discovered evidence, are not governed by any well-defined rules, but depend in a great degree upon the peculiar circumstances oE each case. They are addressed to the sound discretion of the court, and whether they should be granted or refused involves the inquiry whether substantial justice has been done, the court having in view solely the attainment of that end.”

See, also, Glassford v. Lewis, 82 Hun, 46; 63 St. Rep. 484; Homes v. Roper, 32 id. 470 ; Wilcox Silver Plate Co. v. Barclay, 48 Hun, 54; 14 St. Rep. 879. Substantial justice is said to be the main test. Clegg v. Newspaper Union, 51 Hun, 232, 237; 21 St. Rep. 215. When the order for a new trial is granted by the judge who heard the case, it should not be reversed, unless error clearly appears. Order affirmed, with costs.

All concur.


text:
    George Patterson, App'lt, v. Joseph Hare, Resp’t.

      (Supreme Court, Appellate Division, Third Department,

      Filed April 14, 1896.)

    1. Partnership—Sale op pirm property.
    A sale by one partner of all the firm property used in carrying on the business operates as a dissolution.
    3. Same.
    A sale by a partner of the firm assets worth over $1,000 to his brother for $300, is a fraud upon the rights of the co-partner.
    3. Same—Lien.
    The fact that the partner has made advances in excess of those made by his co-partner, under an agreement to give him an assignment of the firm assets as security, does not make the sale valid.
    Appeal from a judgment rendered against plaintiff.
    Farrell & Finder, for app’lt; C. D. Hudson, for resp’t.
   MERWIN, J.

In the fall of 1890, the parties to this action formed a copartnership in the business of cutting, storing, and selling ice. They obtained a lease for a site for an ice house, and built one in December, 1890. They purchased horses, wagons, and tools, and entered upon the business, and so continued until October 26, 1891. As this time, as the referee finds, the firm owned a lease of the premises used by them in their business, two horses, two ice houses, ice wagon and harness, ice 'tools and barn tools, all which had been purchased by the.firm within about one year previous, at a total cost, exclusive of the lease, of $1,829.15. The referee also finds “that on or about said 26th day of October, 1891, the defendant in good faith, and with no intent to cheat or defraud said plaintiff, sold and transferred all of said firm property to his brother, John Hare, for a reasonable consideration, to wit, for the sum of $300, which sum was and is retained bv said defendant.” This sale operated as a dissolution, as it practically included all the property used by the firm in carrying on its business. The referee stated the accounts of the parties, charging the defendant with the $300 received by him on the sale to his brother, and upon the accounts so stated and settled he found due to the defendant from the plaintiff the sum of $384.92, for which sum he ordered judgment against the plaintiff, with costs. Judgment was accordingly entered, from which the appeal is taken.

The plaintiff, in his supplemental complaint, in effect charged that the salé., by defendant to bis brother was a fraud upon the plaintiff’s rights; that the property sold was worth not less than $1,800, and that defendant should be charged with its fair market value. Upon the issue made upon these allegations, the referee made response in the finding above quoted. The plaintiff claims that this finding is not sustained by the evidence. If this contention be true, a new trial must follow, as the defendant is only charged with what he received from his brother. The sale was made in the nighttime, and the defendant testifies that he never asked any one else to purchase the property. It was not assented to by the plaintiff, and he bad no information that defendant would attempt to make any such sale. The property, according to the undisputed evidence, was worth more than a thousand dollars. A careful consideration of the evidence leads to the conclusion that the sale was made in good faith, and with no intent to defraud the plaintiff, or for a reasonable consideration, is not sustained by the evidence.

It is argued on the part of the defendant that on an occasion when the defendant made an advance in excess of the advances made by the plaintiff, the plaintiff agreed with the defendant to give him an assignment of his interest in the co-partnership assets as security. Assuming that the defendant had an interest in the property sold similar to that of a mortgage, it would not follow that the sale in question would be valid. If a mortgagee has a right to make a private sale, it must be fairly made. Jones, Chat. Mortg. (4th Ed.) § 790, and cases cited.

Judgment, so far as appealed from, reversed, and a new trial ordered, costs to abide the event, and referee discharged.

All concur.


text:
    John Graves, App'lt, v. Edward H. Brewer et al., Resp'ts.

      (Supreme Court, Appellate Division, Third Department,

      Filed April 14, 1896.)

    Master and servant—Risk.
    If the servant, being of mature age and of ordinary intelligence, has equal knowledge with the master of the dangers, to be apprenended, and lie voluntarily subjects himself thereto, knowing of their existence, the mere fact that he has received an assurance that there was no risk to be feared nor avoided, is of little avail in relieving him from the charge of contributory negligence.
    Appeal from a judgment in favor of defendant and from an order refusing a new trial on the minutes.
    William Kennedy and W. C. Crombie, for app’lt ; Kellogg & Van Hoesen, for resp’ts.
   MERWIN, J.

On the 7th of 8th December, 1892, the plaintiff entered into the employ of the defendants as an operator of an upsetting machine in defendants’ shop. He continued in their employ to the 28th January, 1898, when he received an injury to his hand by its coming in contact with uncovered, moving cogwheels on the side of the machine. In this action the plaintiff claims to recover damages for this injury on the ground that it was caused by the negligence of the defendants. The machine at which plaintiff worked was an iron machine standing about three feet high from the floor. It was four or five feet long, and at the east end, where plaintiff stood while engaged in running it, it was about two and one-half feet wide, and at the west end it was less than two feet wide. On the south side, at the west end, there were two cogwheels that meshed together,—one about two feet across, and the other about six inches. Power was received from overhead shafting, by means of a belt running down, and attached to a pulley on the north side of the table. This pulley was on a shaft that ran across the table to the small cogwheel. The large cogwheel was on a shaft that ran across the table, and was connected with the upsetting apparatus. The cogwheels, in motion, ran away from each other, on the top. On the top of each shaft, an inch or two from the wheel, there was an oil cup. The plaintiff was then about twenty-four years of age, and, before this employment, knew, in a general way, how machinery was run by wheels and cogs that work into each other. When he went to work for defendants, he was told how to operate the machine. It was started and stopped by a lever on the north side, and the use of this was also explained. The plaintiff went to work, and had no difficulty in running the machine. On the first Saturday after he commenced, the superintendent, Mr. Steele, came to. him, stopped the machine, got a handful of was té supplied for that purpose, and told the plaintiff to take it and wipe all the grease and dirt off of the top of the machine, and clean out the oil cups; and he showed the plaintiff how to do it. The superintendent then told the plaintiff to stop the machine every Saturday night in time to wipe it up and get through before five o’clock. This the plaintiff did for several weeks. About the 20th of January, following, there was some breakage in the machine ; and thereafter, for the purpose, apparently, of preventing the machine getting out of gear while in operation, the lever was tied to the side of the machine, and the plaintiff was told not to untie it, as it would have to be fixed. On the following Saturday night the plaintiff got ready to clean the machine, and then, as he testifies :

“ I went over and asked Mr. Steele how I was going to clean it. He was measuring some joints. He said: ‘Go on and wipe it. It is all right.’ I asked him if I could wipe it when running. He said: ' Yes, go on and wipe it.’ And I went on and wiped it. I wiped it with waste, just as I had done before, except that the machine was running instead of being stopped."

He wiped it then, as he testifies, without any trouble or difficulty. After tliis he continued at work at the machine in the same shop until the next or the second Saturday following,—he 3s not certain which. Then, without anything further being said between him and the defendants, or their superintendent, he proceeded to clean the machine while in motion, as he had formerly done; and, while cleaning out the oil cup near the small wheel, his hand was in some way caught and drawn into the wheels, and injured. He was then standing on the south side of the machine, near the west end, and was reaching over one side of the small wheel.

At the close of the evidence on the part of the plaintiff the defendants moved for a nonsuit upon the grounds, among others, that the plaintiff was guilty of contributory negligence; that the danger was obvious and apparent, and the plaintiff assumed the risk. The motion was granted, it being said by the court that it was granted “on the ground that it appears from the evidence that the defects complained of were obvious and apparent,—as much so to the plaintiffs as they were to the defendants or their superintendent,—and that for that reason the plaintiff cannot recover for damages arising from those defects.” The claim of plaintiff is that the question of plaintiff’s contributory negligence, and the assumption of the risk, should have been submitted to the jury.

The case of Knisley v. Pratt, 75 Hun, 323; 58 St. Rep. 213, involved the consideration of an accident quite similar to the one here. There an employe was injured in cleaning a machine in motion, and her hand was caught between unguarded cogwheels. At the circuit a nonsuit was granted on the ground that the plaintiff assumed the risk. The general term reversed the judgment on the ground that the question of contributory negligence was for the jury, and that the rule as to the assumption of risks from unguarded cogs was changed by reason of the statute (factory act; chapter 409 of the Laws of 1886, and subsequent amendments) that required employers to furnish special protection to such kind of machinery. This decision is largely relied on in the argument on the part of the plaintiff. It has, however, been recently reversed in the court of appeals, and the nonsuit affirmed. 148 N. Y. 372. That case now stands as authority, I think, for the non-suit in the present case, unless the plaintiff here has a better position by reason of the direction and assurance of safety given the week before by the defendants’ superintendent. The danger was as apparent to the plaintiff as to the defendants. He testifies that he understood the full operation and managem. nt of the machine, as far as his work went; that he “ knew the whole situation and location there,” — referring to the situation and location of the wheels on the south side of the machine. He asked for no further instructions. In such a case he took the risk, although there was a direction to do the act. Crown v. Orr, 140 N. Y. 450, 455 ; 55 St. Rep. 834. In Daley v. Schaaf, 28 Hun, 315, the master had better means of the knowledge of the danger than the servant had; and so it was in Kain v. Smith, 89 N. Y. 385. In Haas v. Balch, 6 C. C. A. 201, it is said:

“If, in a given instance, the servant, being of mature age and of ordinary intelligence, has equal knowledge with the master of the dangers to be apprehended, and he voluntarily subjects himself thereto, knowing of their existence, the mere fact that he had. received an assurance that there was no risk to be dreaded or avoided might be of little avail in relieving him from the charge of contributory negligence.”

Under the circumstances shown in the present case, it was, in effect, held by the trial court that the plaintiff, in continuing his work, and undertaking, upon the day in question, without further objection or instructions, to perform the hazardous work, assumed the obvious risk. Ho good reason is, I think, apparent for disturbing that conclusion.

Judgment and order affirmed, with costs.

All concur.


author: PER CURIAM.

text:
    Lemuel S. Bonnell, Resp't, v. Richard H. Gardner et al., App'lts.

      (Supreme Court, Appellate Division, Third Department,

      Filed April 14, 1896.)

    Creditor’s bill—Surplus income—Bíirden op proop.
    In a judgment creditor’s action to subject to his claim the surplus income of a trust fund, the burden is on the creditor to show that there is a surplus of income, and a tin ding that the sum of $300 per year is sufficient for the support of the debtor and his family is not warranted in the absence of evidence to show what were his earnings and other resources, and what it cost him and other people generally in his situation to live. .
    Appeal from a judgment in favor of plaintiff.,
    William W. Morrill, for app’lt; Ward & Cameron, for resp’t.
   PER CURIAM.

It is not clear that the evidence sustains the finding that only $300 a year out of the income of the trust fund is necessary for the support of the debtor and those dependent upon him. The decree refers only to future income, and therefore the point is, what sum should be fixed as the situation appeared at the time of the trial in May, 1895 ? If the earnings of the debtor may be considered, see Moulton v. De Ma Carty, 6 Rob. 533, it does not appear what they were at the time of the trial. In December, 1890, he was in the employ of Gardner & Tail, of New York city, at $15 a week. He left them, and for five years has be.en running a laundry in Brooklyn. How much he gets out of that does not appear. It is not, according to the evidence, a flourishing business. His wife is in poor health, and he has an invalid son dependent upon him. It is not shown how much it costs them to live, or how much ordinarily it costs people in their situation to live. He and his wife seem to have had the income up to the time of the trial, and were asking for more. His father had been accustomed to help him. but to what extent does not appear. The wife owned a house that rented for $40 a month. On this was a mortgage of $3,000. They do not keep up the taxes on the house. The manner in which the debtor has been accustomed to live is an element. RAPALLO, J., in Williams v. Thorn, 70 N. Y. 270, 278; Andrews v. Whitney, 82 Hun, 123; 63 St. Rep. 486; Genet v. Beekman, 45 Barb. 382. The burden is on plaintiff to show that there is a surplus of income. Kilroy v. Wood, 42 Hun, 636. In that case the complaint was dismissed for lack of evidence to show what would be a proper amount to allow the beneficiary for his support. In Tolles v. Wood, 99 N. Y. 616, Ruger, C. J., seems to have been of the opinion that, aside from proof as to the actual cost of living to a party, the best, if not the only, competent proof to be given on the subject was evidence as to the amount and cost of the various items going to make up the expense of living in the locality of the debtor to a person in his position. The opinion of Judge RUGER, was concurred in by Judge EARL, but the question was not considered by the other judges. It seems to us that the evidence in this case is not sufficient to enable a court- to fairly say what is a proper amount to be allowed to the debtor for the support of himself and those dependent upon him. If not, there should be a reversal.

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


author: PUTNAM, J.

text:
    Margaret Kain, as Administrator, etc., App'lt, v. Patrick Larkin et al., Resp'ts.

      (Supreme Court, Appellate Division, Third Department,

      Filed April 14, 1896.)

    1. Fraudulent conveyance—Claim in toet.
    Though the claim is founded on a tort, and its amount undetermined at the time of the conveyance in question, the grantor cannot defeat its collection by a fraudulent disposition of his real estate.

      2. Same—Consideration.
    Where a portion of the consideration for the conveyance is an agreement by the grantee for the future support of the grantor, the deed is fraudulent and void.
    3. Same.
    Such a secret trust for the benefit of the grantor, though resting on an oral agreement, may be shown by parol and, when proven, vitiates the deed.
    4. Same.
    Where the consideration of the deed is the promise of the grantor to convey the premises to his daughter for her future services in supporting or taking care of his wife, such a promise is fraudulent and void as to existing creditors, and the grantee cannot be deemed a purchaser in good faith.
    Appeal from a judgment in favor of defendants.
    G. R. Adams, for app’lt; F. L. & F. A. Westbrook (F. L. Westbrook, of counsel), for resp’ts.
   PUTNAM, J.

On the first day of May, 1889, when 'Patrick Larkin delivered to his daughter, Maria E. Larkin, a deed of' his house and lot in Kingston, N. Y., an action was pending against him, brought by Margaret Kain, as administratrix of David Kain, deceased, to recover damages for his wrongful act, by which the death of the deceased was caused, in which judgment was recovered on the 16th day of October, 1890, in favor of the plaintiff for $987.34 damages and $530.94 costs. Although the plaintiff’s claim was founded on a tort, and its amount was undetermined at the time of the conveyance in question, Patrick Larkin could not defeat its collection by a fraudulent disposition of his real estate. A deed executed to defraud one having a claim arising out of the commission of a wrongful act has no greater, validity than one made to prevent the collection of a liability arising on a contract. Martin v. Walker, 12 Hun, 46; Jackson v. Myers, 18 Johns. 425; Ford v. Johnston, 7 Hun, 563; Baker v. Gilman, 52 Barb. 26. The plaintiff, therefore, at the time mentioned had a just claim' against Patrick Larkin, the amount of which was undetermined,' but was afterwards found to be $987.34, besides costs of the action^ which had then accrued. Before the execution of the deed from¡ Patrick Larkin to his daughter, the former therefore had real estate worth $3,000, out of which plaintiff’s demand could have-been collected. The necessary effect of the conveyance was to>prevent the collection of any judgment the plaintiff might thereafter recover, as Patrick Larkin, besides the house and lot, had no' other property except six or eight hundred dollars in money,' which was insufficient to pay the plaintiff’s demand, and which, was- afterwards expended by him in the payment of debts anefc living expenses. We are called upon to determine whether, as: against the plaintiff thus standing in the position of a creditor, the, finding of the trial court that the deed in question was made by Patrick Larkin and received by Maria E. Larkin, in good faith„ and without any intent to defraud creditors or other persons, can be sustained.

There was evidence to the effect that, Maria E. Larkin being-employed in the city of New York, Patrick Larkin requested her to go to Kingston, and take care of his wife, who was then ill; and agreed, if she would do so, that she would have, • at some future period, the house and lot in question. She came from New York on Christmas, 1888, and did take care of Mrs. Larkin until her death, about four months afterwards. There was also some evidence to the effect that, prior to the said Christmas, Patrick Larkin had promised at some time to convey to his daughter the house and lot. Such former promise, however, under the evidence, must be deemed a mere agreement to make a gift. The trial court found that said conveyance of said house and lot was made in consideration of the “promise and agreement of said Patrick to and with said Maria to convey it to her for her giving up her business and returning to his home to take care of his wife, and for and in consideration of the moneys invested therein by her deceased mother.” A careful consideration of the evidence leads to &he conclusion that such finding should not be sustained. It is true that the promise therein referred to may have entered into the consideration of the deed, but we think a decided preponderance of the evidence shows that at the time of the actual execution and delivery of such conveyance there was a further and other consideration agreed upon by the parties. The question is, what in fact was the actual consideration which the defendant Maria agreed to pay Patrick Larkin when the deed was executed and delivered ? Any further agreement could be modified or changed by the grantor and grantee. In her deposition on her examination in supplementary proceedings Maria E. Larkin testified as follows:

“ I came home on the condition that I should come home and ¡he [her father] would recompense me for it, * * * That I should remain at home, and take care of her and him, and the place would be mine after a while; and I did so. * * * He gave me the deed, and told me torput it away; it was mine, and I should take care of it. He said, ‘All I want is my support, and to be cared for during the rest of my life.’ I promised to take care of him during the rest of his life, and that is part of the consideration of this deed to me. * * "* He never agreed to convey the property until I returned from New York at the time my stepmother was sick. That was after he had returned from prison.”

On her examination on the trial her statement of the facts is somewhat different. She said on her direct examination:

“My stepmother was sick, and not in her right mind, and he [Patrick Larkin] asked me to come and take care of her. He said he would do as he had promised to do before; he would deed me the property,—the house where we lived in. * * * Q. Under what agreement with your father? A. I remained under the agreement that he would deed me the place if I took care of, ;her.”

On cross-examination she said, in answer, to the following question in regard to her testimony on her examination in supplementary proceedings:

“Q. In answer to this question, ‘What was said at the time with, reference to this deed ? ’ did you say: ‘ He gave me the deed, and told me to put it away; it was mine, and 1 should take care of it. He said, “All I want is my support, and to be cared for during the rest of my life.’ I promised to take care of him during the rest of his life, and that is a part of the consideration of this deed tome.” A. He said that. I remember saying nothing. It was my intention. I meant to support him. I made no answer. Q. Did you so testify ? A. I may have. Q. Didn’t you promise to take care of him ? A. I intended to do so. * * * I didn’t promise'it, though.”

Of course, the deposition signed and sworn to by Maria E. Larkin was competent evidence against her.

As to Patrick Larkin, in his deposition (which was competent evidence against him) he said in answer to the following question:

“ Q. The consideration states in consideration of natural love and the sum of one dollar? A. Yes, and for my daughter to support me in my old age.' That answer is not written in the deed. That was a part of the consideration,—that she should support me in old age, and for her services before her mother died and since. That is not written in the deed. Q. Did yon put this in your daughter’s name for the purpose of protecting it? A. I did.”

On the trial, however, he stated the consideration" of the deed to be as follows:

“Part of the money her mother had in it, and her own services, and for what her stepmother left her when she was taking care of her.”

But he did not deny that the conversation between him and his daughter as stated in his disposition, which had been read in evidence when he was sworn, had in fact occurred. In his disposition he had testified:

“She said at the time I deeded it to her that she would take care of me in my old days, and that I would have a home with her. She promised to do that for me. I didn’t know that it was necessary to insert that in the deed. I gave her that deed in consideration of her taking care of me.”

The evidence in the case leads us to believe that when Maria Larkin left her business in New York, and came to Kingston to the care of her stepmother, her father agreed at some future time to convey his house and lot to her, either for taking care of him and his wife or for taking care of Mrs. Larkin alone. But when the deed was actually executed, an additional consideration was agreed upon,—the future support of the grantor. Both of the defendants in their depositions say that that consideration was agreed upon, and we think, under the circumstances, the fact so testified to should be deemed established. Hence, á portion of the consideration for the conveyance in question being an agreement by the grantee for the future support of. the grantor, the deed to the plaintiff must be held fraudulent and void. Jackson v. Parker, 9 Cow. 73; Robinson v. Stewart, 10 N. Y. 189; Young v. Heermans, 66 N. Y. 374; Todd v. Monell, 19 Hun, 362; Strong v. Lawrence, 58 Iowa, 55; Lawson v. Funk. 108 Ill. 502. And this is so although a portion of the consideration for the conveyance was legal and valid. Eobinson v. Stewart, supra. And it is held that such a secret trust for the benefit of the grantor, although resting on an oral agreement, may be shown by parol, and, when proved, vitiates the deed. Coolidge v. Melvin, 42 N. H. 510; Rice v. Cunningham, 116 Mass. 466; Lukins v. Aird, 6 Wall 78.

It is claimed, however, that at the time of the delivery of the deed, both Patrick Larkin and his daughter believed that the action to recover damages for the death of David Kain had terminated by the judgment in favor of the former, and hence there was no intent to defraud the plaintiff. This claim as to Patrick Larkin—his attorney residing in the same city, and an appeal being then pending in the action—does not require serious consideration. As to the defendant Maria, we are inclined to believe that, having knowledge of the action commenced by the plaintiff to recover damages for the death of the decedent, that fact made it her duty to institute inquiries as to the suit. Baker v. Bliss, 39 N. Y. 70. But if she had no knowledge that the plaintiff’s action to recover damages was pending at the time of the conveyance, or of circumstances that made it her duty to inquire as to the condition of the suit, that fact could not avail her, unless she was a bona fide purchaser in good faith. If we are correct in our contention that a portion of the consideration ©f the conveyance was a secret trust for the future support of the grantor, the deed was not made in good faith. Lukins v. Aird, 6 Wall. 78; Moore v. Wood, 100 Ill. 451; Lawson v. Funk, 108 Ill. 502-513. As said in Lukins v. Aird, supra:

“Such a transfer may be upon a valuable consideration, but it lacks the element of good faith; for, while it professes to be an absolute conveyance on its face, there is a concealed agreement between the parties to it inconsistent to its terms, securing a benefit to the grantor at the expense of those he owes. A trust thus secretly created, whether so intended or not, is a fraud on creditors, because it places beyond their reach a valuable right,—the right of possession,—and gives to the debtor the beneficial enjoyment of what rightfully belongs to his creditors.”

In Robinson v. Stewart, supra, the defendant in his sworn answer denied that he knew of the existence of the note of the plaintiff at the time he took the conveyance, and there seems to have been no proof given in that regard. Bat there being a trust in favor of the grantor, the deed under which the defendant claimed was held void. In Moore v. Wood, supra, it is said that a secret “trust for the future support of a grantor, whether so intended or not, is a fraud on creditors.” The trial court, however, found that the consideration of the deed was the promise of said Patrick to and with said Maria to convey the premises to her for her giving up her business and returning to his home to care for his wife, and for and in consideration of the moneys invested by her deceased mother. It will be observed that the consideration is not found to be the value of the services of Maria between the date of the promise and the delivery of the deed, but the promise made on or about Christmas. We are unable to find any evidence showing that the mother of the said Maria, who died about nine years prior to May 1, 1889, had any legal interest whatever in the premises.in question. It does not appear that she had invested any money therein. It is possible that she may have loaned money to her husband, hut the evidenec in the case do'es not show any such state of facts. The finding of the trial court in this regard, therefore, is not sustained by the testimony. If the consideration of the deed was, as found in the court below, the promise of Patrick Larkin, made about Christmas, 1888, to convey the premises to his daughter for her future services in supporting or taking cave of his wife, such a promise was fraudulent and. void, under the author!tes above cited, as to existing creditors. It was an agreement by a debtor to convey all his tangible property to a grantee in consideration of the future care of a member of his family. If such a transation could be sustained, any debtor owing property ample to meet his obligations has it in his power to make a contract with one member of his family for the future support or care of another member, and to divest himself of all his estate, and prevent the collection of any debt, however meritorious.

We think in this case there was no sufficient legal or valid consideration for the conveyance in question, whether such consideration was the arrangement between the parties made on Christmas, 1888, whereby the said Patrick agreed to convey the premises to said Maria in consideration of her future care of Mrs. Larkin, or the agreement entered into when the deed was delivered for the future support of the grantor. In either case the contract was fraudulent and void as against an existing creditor under the authorities to which we have referred, and the grantee could not be deemed a purchaser in good faith.

We conclude that from the facts appearing in this case the inference must be drawn that the conveyance in question was executed with intent to hinder, delay and defraud the plaintiff, and hence that the judgment should be reversed, and a new trial granted; costs to abide the event.

PARKER, P. J., and LANDON and HERRICK, JJ., concur. MERWIN, J., concurs in result.


text:
    Nathan C. Smith, Resp't, v. Lyman J. Smith et al., App'lts.

      (Supreme Court, Appellate Division, Third Department,

      Filed April 14, 1896.)

    1. Pleading—Action in tort.
    A complaint, which sets forth representations made by defendants as to their responsibility, that such representations were false and fraudulent to the knowledge of the defendants and made with intent to deceive the plaintiff, that he, believing such false representations, loaned defendants a sum of money and took their note therefor, states a cause of action for fraud which entitles plaintiff to an execution against defendants’ persons.

      2. Same—Recovery,
    In such ease, upon an appeal by defendants to the county court from, a judgment of the justice’s court for plaintiff, awarding an execution against defendants’ persons, the plaintiff should not be allowed to abandon Ms claim for damages for the alleged false and fraudulent representations.
    This action was commenced on the 6th day of March, 1895, before a justice of the peace of the county of Broome, The complaint therein was as follows, viz.;
    “Plaintiff complains of the defendants,'and alleges"that'the defendants herein, on or about the 12th day of April, 1894, for a valuable consideration, executed ' and ^delivered to the plainti if herein their promissory note, in writing \which said note is hereto attached, and made a part of this complaint; that on or about the 14th day of April, 1894, the defendants willfully, wrongfully, falsely and knowing the same to be false, represented certain matters to this plaintiff to be true, with intent to cheat and defraud this plaintiff out of the sum of $150; that plaintiff, believing the false and fraudulent representations made by defendants to be true, loaned them the" sum of $150 on the 15th day of April, 1894, with full faith as to their responsibility, financially, and took, as an evidence of such loan, the promissory note hereto attached; that the defendants represented to plaintiff that they were financially responsible for the sum so advanced, when, in truth and in fact, they, and each of them, knew that such statements were false and untrue; that payment of said promissory note was duly demanded of both the defendants herein, and refused; that there is now due and owing plaintiff by defendants the sum of $150, and interest thereon from the 14th day of April, 1894, no part of which has been paid; that the defendants herein both reside in the city of Binghamton, county of Broome, N. Y. Wherefore plaintiff demands judgment against defendants for the sum of $150, and interest from April 14, 1894, with' costs.
    “Nathan Smith, Plaintiff.”
    Copy of note attached to complaint, forming a part thereof;
    “ $150. Binghamton, N. Y., Apr. 12th, 1894,
    “The Merchants’ National Bank. Six months after date, I promise to pay Nathan C. Smith $150.00,
    “ With use. --dollars.
    “ With use, ,
    “ Lyman J. Smith,
    “B. L. Johnson.”
    The answer was an oral one, consisting of a general denial of the complaint. Thereafter, on March 30, 1895, the justice rendered judgment in favor of the plaintiff for the amount claimed in the complaint. The record shows that on April 6, 1895, a transcript of.said judgment was issued, containing the words, “ Defendants liable to execution against their persons,” pursuant to the provisions of section 3018 of the Code of Civil Procedure. An appeal was taken from said judgment by the defendants to the county court of Broome county; they, in the notice of appeal, demanding a new trial in said court. Such trial was had before the county judge of said county and a jury on September 22, 1895. On the trial the plaintiff proved the execution of the note, a copy of which was set out in the complaint, but offered no evidence to sustain the allegations of fraud therein contained. The plaintiff thereupon moved to amend the complaint so as to conform to the proof, by striking therefrom the allegations of fraud. The court below held that the plaintiff, having proved a good cause of action on contract, was entitled to recover under the allegations of the complaint as it was, and that an amendment was unnecessary, and for that reason denied the motion. The plaintiff thereupon rested, and the court directed a judgment in his favor, and against the defendants, for the amount claimed. The defendants made the proper objections and exceptions to such direction, rulings and disposition of the case by the court below.
    T. B. & L. M. Merchant, for app’lts; Frank H. Short, for resp’t.
   PUTNAM, J.

We think that the complaint states a cause of action for an alleged fraud. The plaintiff therein set forth representations made by the defendakts as to their responsibility; that said representations were false and fraudulent to the knowledge of the defendant, and made wrongfully and willfully, with intent to deceive the plaintiff; that he, believing such false representations made by the defendants to be true, loaned them the sum of $150, relying upon the representations made by them as to their responsibility, and took -the note set out in the complaint; that payment of said note was duly demanded by plaintiff of defendants, and refused. “ Wherefore plaintiff demands judgment" for $150 and interest. As said in Ross v. Mather, 51 N. Y. 108-110, “the complaint contains all the elements of a complaint for a fraud.” It does not set forth a cause of action on a promissory note, but one arising from certain fraudulent representations made by the defendants, known by them to be false, with intent to defraud the plaintiff, and by which he was induced to advance $150, and take the note in question, and hence was defrauded and damaged to the amount thereof. Under this complaint, on the judgment rendered by the justice of the peace that officer was authorized to issue an execution against the persons of the defendants, by virtue of the provisions of sections 3026, 2895, of the Code of Civil Procedure; and, in the transcript delivered to the plaintiff, he properly inserted the words, “ Defendants liable to execution against their persons.” Our attention is called to a similar complaint in Peck v. Root, 5 Hun, 547, which was held to set forth a cause of action in tort. See, also, Combs v. Dunn, 56 How. Prac. 169; Freeman v. Leland, 2 Abb. Prac. 479. Hence the gravamen of the action, as stated in the complaint, being for fraud, the court below was hot authorized to allow a recovery for a breach of contract. Ross v. Mather 51 N. Y. 108; Barnes v. Quigley, 59 id. 265, Truesdell v. Bourke, 145 id. 612-617. There are a class of cases, some of which are cited and referred to by the learned counsel for respondent, holding that, where the gravamen of an action is breach of contract, the addition of irrelevant or unnecessary allegations of fraud in the complaint will not affect the nature of the action, or the remedy therein. Graves v. Wait, 59 N. Y. 196; Tuers v. Tuers, 100 id. 196. The distinction between such cases, and the one under consideration is noticed by Finch, J., in Salisbury v. Howe, 87 N. Y. at page 134. In this case the complaint clearly sets forth a cause of action to recover damages alleged to have been sustained by the plaintiff by reason of the fraudulent representation of the defendants. Had the plaintiff simply counted on the note-described in the complaint, the defendants might not have interposed a defense to the action. But they were compelled to defend the action actually brought by the plaintiff, as stated in his complaint, or suffer a judgment adjudging them guilty of fraudulent representations, under which they were liable to be arrested. So, when a recovery was bad against them in the justice court, they were compelled to appeal to the county court. Under the circumstances, the disposition of the case by the court below—allowing the plaintiff, on the trial, to abandon his claim for damages for the alleged false and fraudulent representations of the defendants, and recover as in an action on the note—was not only unauthorized, hut unjust to the defendants.

We are of the opinion that the court below was right in denying the motion of the plaintiff to amend the complaint, on the ground that an amendment on the trial substituting a different cause of action from that stated in the complaint is unauthorized. Freeman v. Grant, 132 N. Y. 22-29; 43 St. Rep. 396. This is especially the case on a new trial in the county court on an appeal from a justice’s court.

The judgment should be reversed and a new trial granted; costs to abide the event,

LANDON, HERRICK, and MERWIN, JJ., concur.


text:
    Charles B. Gibson, Resp't, v. Elizabeth B. Denton, App'lt.

      (Supreme Court, Appellate Division, Third Department,

      Filed April 14, 1896.)

    1. Trial—Question on fact.
    Where no order, denying the defendant’s motion for a new trial on the minutes, is contained in the case, the appellate court can pass only upon the exceptions taken hy the defendant on the trial. ' " “

      2. Nuisance—Dangerous premises.
    A dangerous tree, standing upon defendant’s premises near plaintiff's house, on which it is liable to fall during any of the gales which were liable to occur from time to time, is a nuisance, which the defendant, at the request of the plaintiff, ought to abate. "
    S. Evidence—Irrelevant.
    A letter, written to defendant by her attorney at the plaintiff’s instance, is irrelevant, where it is not claimed that defendant took any action in consequence.

      Appeal from a judgment in favor of plaintiff.
    G. M. Ingalsbe (A. D. Wait, of counsel), for app’lt; D. J. Sullivan, for resp’t.
   PUTNAM, J.

On the 18th day o£ November, 1892, the plaintiff was, and for several years prior thereto had been, the owner of a house and lot in Sandy Hill, N. Y. The deffendant, during the same period, was the owner of the adjoining lot, on which stood (twenty-one inches from the plaintiff’s line, and twenty-nine feet from'his house) a pine tree, twenty-two inches in diameter, near the ground, and seventy-five feet high. This tree, during a heavy gale, on the day above mentioned, was blown down, falling on plaintiff’s house. For the damage occasioned thereby, this action was brought. Plaintiff recovered judgment, and the defendant appeals. -t

As an order denying the defendant’s motion for a new trial on the minutes is contained in the case, we are unable to consider the question of fact discussed in the brief of the learned counsel for the appellant. We can pass only upon the exceptions taken by the defendant on the trial. Passey v. Craighead, 89 Hun, 76; 69 St. Rep. 429. Hence, under the evidence produced by the plaintiff on the trial, the verdict of the jury must be deemed to have established the following state of facts:1 The pine tree had been cut into near the ground, and at that place was only about eighteen inches in diameter. It had also been blazed, and on that part there was no bark. About one-half of the trunk, eight feet up and down, was without bark, and the wood appeared dead. The lower limbs were decayed, and other limbs did not appear like those of other pine trees,—not as bright as they ought to have been. The trunk was one-third or more decayed. It stood fully exposed to the wind. "This condition had existed several years before the tree fell, and its unsound condition was apparent. Plaintiff twice in 1891, and also once in August, 1892, requested the defendant to remove the tree. He informed her of its condition; told her it had been blazed, cut into, was rotten, and that the occupants of his house were afraid of it. The defendant promised to attend to it, but neglected-to do so. During a heavy gale, the tree was blown down, damaging the plaintiff’s house to the amount for which he recovered judgment. 1

The defendant, on the trial, at the close of the evidence, moved for a nonsuit, claiming that, “as a matter of law,” on the undisputed facts, the evidence was insufficient to justify the submission of the case to the jury. We are called upon to consider her exception to the denial of this motion bv the trial court.

If, instead of a pine tree, there had been on defendant’s premises, at the same place, a building which had become dilapidated and unsafe, to the knowledge of the defendant, and which had. fallen upon and damaged plaintiff’s house, no doubt could be entertained of her liability for the injury occasioned thereby. Rector, etc. v. Buckhart, 3 Hill, 193; Mullen v. St. John, 57 N. Y. 567; Jarvis v. Baxter, 52 Supr. 109. In Reg. v. Watts, 1 Salk. 357, such an unsafe building is held to be a nuisance. And see Simmons v. Everson, 124 N. Y. 319; 36 St. Rep. 265. So, if the defendant had had a pole erected on her lot at the place where the tree stood, which had become decayed to her knowledge, and had fallen on plaintiff’s premises, clearly she would have been liable for bis damages sustained thereby. In Ward v. Telegraph Co., 71 N. Y. 81-83, which was an action to recover for injuries caused by the fall of a telegraph pole placed on the street, it is said in the opinion: “If the pole which broke and fell was originally not reasonably sufficient, or if it was permitted carelessly to become and be insufficient by decay, the responsibility attached to the defendant for the accident.” íf the defendant would have been liable for the fall of an unsafe pole or structure, we can see no good reason why she should not be responsible for the fall of a decayed tree, which she allowed to remain on her premises. It is true that in the supposed case the pole or structure would have been placed on defendant’s premises by her, her grantor or ancestor, while the tree grew there. But the tree was on her lot, and was her property. It was as much under her control as a pole or building in the same position would have been. This decayed tree, standing where it aid, near the plaintiff’s house, and on which it was liable to fall during any of the gales which were liable to occur from time to time, we think, was a nuisance, which- the defendant, at the request of the plaintiff, should have abated. The defendant had no more right to keep, maintain, or suffer to remain on her premises an unsound tree, near the house of her neighbor, on which, in any of the frequently occurring high winds, it was liable to fall, then she would have had to keep a dilapidated and unsafe building in the same position. It was her duty to maintain her premises in such a condition as that they should not become a cause of injury to her neighbor’s property in a way that common prudence should foresee. .

It is urged by the appellant that the fall of the tree was caused by an extraordinary wind or gale, which could not have been anticipated, and hence the defendant was not liable. On the testimony in the case, the jury were not compelled to find that the gale which caused the fall of the tree was extraordinary. As far as the evidence shows, it was one of those gales that frequently occur, and which might be looked for at any time. We may infer that it was in anticipation of such a wind that the plaintiff requested the defendant to remove the tree.

Our attention is called to dictum of HUNT, J., in Sheldon v. Sherman, 42 N. Y. 484, that “if a tree growing upon the land of. one is blown down up the premises of another, and in its fall injures his shrubbery or his house or his person, he has no redress against him upon whose land the tree grew.” But it does not appear that the learned judge was speaking of añ unsound tree standing on premises of a party near the house of his neighbor, liable, in any high wind, to fall down upon it, and which the owner of the tree, after notice. of its condition, neglected to reanove.

The trial court did not err in sustaining the objection to the letter written by Mr. Ingalsbe to the defendant. She was allowed to show the conversation between plaintiff and Ingalsbe. It is. difficult to see on what grounds the letter the latter afterwards wrote to his client, at the request of the plaintiff, was competent. It might have been received as a memorandum, had the proper preliminary proof been made. But Ingalsbe, as a witness, was unable to remember his conversation with plaintiff. The letter was not offered as a memorandum. It was competent for the defendant to show what the plaintiff said to her attorney, and this she was allowed to do. What her attorney said or wrote.to her thereafter, at the request of the plaintiff, was not competent evidence, especially as it was not claimed that the defendant took any action in consequence of the letter. We conclude that the ease-was properly submitted to the jury, and. can discover no error re-, quiring a reversal of the judgment. '

Judgment affirmed, with costs.

All concur.


author: MERWIN, J. HERRICK, J.

text:
    Charles McCabe, Resp't, v. Sarah J. O'Connor et al., App'lts.

      (Supreme Court, Appellate Division, Third Department,

      Filed April 14, 1896.)

    1. Negligence—Dangerous premises—Infant.
    The fact that an infant has a general guardian whose duty it is to keep the premises safe but fails to do so does not relieve him from liability for injuries caused by a dangerous wall on his premises.
    2. Same.
    Where there is no failure of duty until notice, the finding; of negligence presupposes the existence of such notice or knowledge as will be requisite to call upon the owner to act, and involves a finding to that effect.
    3. Appeal—Facts.
    A judgment will not be reversed upon an appeal on the judgment roll,. unless it appears that in no view of the facts found, should judgment have been rendered against the appellant.
    Appeal from a judgment in favor of plaintiff.
    Henry J. McCormick and James B. Egan, for app'lts; Marcus L. Akin, for resp’t.
   MERWIN, J.

The record in this case does not contain the evidence. The appeal is heard on the judgment roll. In such a case it is incumbent on the appellants to show that the trial court could not, in any view of the facts found properly order a judgment for the respondent. Insurance Co. v. Barnard, 96 N. Y. 525. The appellants are four in number, three of whom are now infants, and the other one was an infant at the time of the injuries complained of. It is found by the referee as matter of fapt: That on the 15th day of September, 1890, John O’Connor, their father, was appointed general guardian of' their persons and property,, and duly qualified, and immediately entered upon his duties a» such, and has so continued as to those not of age up to the present time. “That all of said infants lived with their father and general guardian on the premises mentioned in plaintiff’s complaint, on which the wall in question was erected, at the time said wall fell, and for several years previous thereto.” “Third. That during the year 1891, and for several years previous, defendant John H. Malone lived on said premises mentioned in said complaint, occupied by the infant defendants. Fourth. That during the year 1890, and for some time prior thereto, the plaintiff owned the premises described in the complaint, situated on the east side of Congress street, in the Fifth ward of the city of Troy, N. Y, Fifth. That at the time, and for more than three years prior to the commencement of this action, the defendants were the owners of a stone wall and the premises on which it stood, to wit, lots Nos. 186, 187, 188, 189, and 192, adjoining plaintiff’s properly on the east, as described in the complaint. Sixth. That on the 25th day of March, 1891, said wall fell on plaintiff’s property. Seventh, That said wall was defective, and fell, through the carelessness and negligence of the defendants. Eighth. That about five months before said wall fell, the defendant John H. Malone was notified personally of its defect. Ninth. That by reason of defendants’ negligence and the falling of the wall as aforesaid plaintiff was damaged to the amount of two hundred dollars.” As matter of law the referee found that the plaintiff was entitled to judgment against the defendants for damages in the sum of $200, with interest from the commencement of the action and costs. The claim of the appellants is that, as they were infants, and had a general guardian, at the time of the injury, they are not chargeable with negligence, and not responsible for the injury.”

In 2 Kent, Comm. 241, it is said:

“Infants are liable in actions arising ex delicto, whether founded on positive wrongs, as trespass or assault, or constructive torts, or frauds.”

In Cooley, Torts (2d Ed.) 122, it is said:

“An infant, as the owner or occupant of lands, is under the same responsibility with other persons for any nuisance created or continued thereon to the prejudice or annoyance of his neighbors and for such negligent use or management of the same by himself or his servants as would render any other or occupant liable to an adjoining proprietor. Here, also, the intent is immaterial. The wrong consists in the fact that emjoymentof one’s own property or rights is diminished or destroyed by an improper use or unreasonable use or misuse of the property of another.”

Morain v. Devlin, 132 Mass. 88, was an action in tort for personal injuries occassioned to the plaintiff by the defective condition of a building owned by the defendant, who was a lunatic, and of whom a guardian had been appointed, who at the time of the injury had the care and management of all her property. It was held that the defendant was liable, and it was said:

“This is not an action for a wrong done done by the persorfal act or neglect of the lunatic, but for an injury suffered by reason of the defective condition of a place, not in the exclusive occupancy and control of a tenant, upon real estate of which the lunatic himself, and not his guardian, is the owner. Harding v. Larned, 4 Allen, 426; Harding v. Weld, 128 Mass. 587, 591. The owner of real estate is liable for such a defect, although not caused by his own neglect, but by that of persons acting in his behalf, or under contract with him. Looney v. McLean, 129 Mass. 33; Gorham v. Gross, 125 Mass. 232; Bartlett v. Light Co., 117 Mass. 533. And there is no precedent and no reason for holding that a lunatic, having the benefits, is exempt from the responsibilities of ownership of real estate. ”

The same doctrine is asserted in 16 Am. & Eng. Enc. Law, 409. This doctrine would apply as well to infants as to lunatics. The general rule is that a person must so use his property as not to injure that of his neighbor. Moak, Underh. Torts, 229. In Vincett v. Cook, 4 Hun, 418, it was held that failure on the part of the owner of a building to keep it in a safe condition, and resulting damages, throw upon the owner the burden of showing that the building was safe so far as diligent examination would show. The same view was taken in Mullen v. St. John, 57 N.Y. 567. These cases related to the walls of a building, but there is no good reason apparent why the principle should not apply to a case like the present, where the wall was entirely on defendant’s land, and was about 20 feet high as appears from the complaint and answer. Nor is it clear that an owner in such a situation should be relieved of liability by saying that he is an infant, and has a general guardian whose duty it was to keep the premises safe, but failed to do his duty. Negligence is found here as a matter of fact. What the proofs were we cannot sáy, as the evidence is not here. It may have been shown that negligence was based on their personal acts. It was found that they occupied the property. If occupants, clearly they might, under proper proofs, be charged with negligence. 2 Add. Torts, 1126; Schouler, Dom. Rel. (2g Ed.) 564. We cannot reverse if, in any view of the facts found, the judgment was proper.

But it is said that no notice to the appellants was found. If there was no failure of duty until notice, then the finding of negligence presupposes the existence of such notice or knowledge as would be requisite to call upon the owner to act, and involves a finding to that effect. Notice is found to a co-tenant in occupation. If the infants were to be deemed occupiers, it would not1 follow, as a matter of course, that they would be entitled to notice;. The appellants have not, I think, shown that in any view of the facts found the judgment was not proper. It should therefore be affirmed. Judgment affirmed, with costs;

PARKER, P. J., and LAND ON, J., concur.

HERRICK, J.

(dissenting.) I am unable to concur in the opinion of Justice MERWIN in this case. Negligence is a violation of, or omission to perform, some duty. There can be no duty unless there is a power to fulfil it. The guardian has absolute control of the lands and property of his ward. By statute it is the duty of the guardian not to “make or suffer any waste, sale, or destruction of such things or of such inheritance, but shall keep and sustain the houses, gardens, and other appurtenances to the lands of his ward, by and with the issues and profits thereof, or with such other moneys belonging to his ward as shall be in his hands.” 2 Rev. St. 153, § 20 (Birdseye Ed. p. 1292, § 44); 2 Kent, Comm. 228. The guardian can lease the lands of his ward until he attains the age of twenty-one years, and may maintain an action of trespass or ejectment. Thacher v. Henderson, 63 Barb. 271. The guardian having entire control of their property, the infants in this case were not in a position to either remove the wall in question or to repair and maintain it in a safe condition.

Again, negligence is actual or implied. There can be no actual or personal negligence charged on the part of the infant defendants, because they had no legal or actual control over the property in question. The negligence of their guardian cannot be implied or imputed to them, as in the case where the principal is held responsible foiqthe acts of his agent, or the employer for the negligence of his employees. That proceeds upon the theory that the superior is responsible for the action of the inferior. In the case of guardian and ward, the superior authority is that of the guardian, and the negligence of the superior is that of the guardian and the negligence of the superior cannot be implied or attributed to the inferior. The ward does not direct or control the guardian, but the guardian the ward. In the absence of any finding of actual or personal negligence on the part of the infants, I do not think the judgment of negligence can be sustained against them. The case of Morain v. Devlin, 132 Mass. 87, does not seem to me entirely a parallel one. The interest of a committee of a lunatic in the property of the latter is different from that of a guardian in the estate of a ward. A committee of a lunatic is held to be a mere bailiff or agent to take care of and administer the property of the lunatic. In re Strasburger, 132 N. Y. 128; 43 St. Rep. 553; People v. Tax Com’rs, 100 N. Y. 215; while, as we have seen, a guardian has the possession, custody, and control of his ward’s land.

PUTNAM, J., concurs.


text:
    Frederick L. Baker, as Receiver, etc., App'lt, v. Louis Emerson et al., Resp'ts.

      (Supreme Court, Appellate Division, Third Department,

      Filed April 14, 1896.)

    1. Corporations—Insolvency.
    A corporation is insolvent when it is not able to pay its debts.
    3. Same—Preference.
    The phrase, “with a view to give a preference,” used in chapter 688 of 1S03, includes “an intent to give one creditor any advantage over others in respect of payment or security of his debt.”

      3. Same—Rebuttal.
    Such intent to prefer is not rebutted by showing that the debtor has also another motive to the proceeding, namely, an expectation of pecuniary or or other future benefit to himself, by means of further loans of money, and being enabled thereby to continue his business.
    4. Same.
    The validity of the payment is not made to depend on whether it is made in the ordinary course of business, or on whether the creditor has any reasonable ground to believe the debtor insolvent, but simply on the fact whether there is insolvency actual or imminent and an intent to prefer.
    Appeal from a judgment entered on the decision dismissing the complaint.
    Potter & Lillie, for app’lt; T. D. Trumbull, Jr., for resp’ts.
   MERWIN, J.

—The Ft. Ann Woolen Company is a domestic manufacturing corporation, incorporated in 1893, and was engaged in the business of manufacturing woolen goods until June 5,1893, when it stopped doing business. Upon that day attachments to a large amount were levied upon its property. The plaintiff was afterwards duly appointed receiver, and on the 14th May, 1894, brought this action to recover of the defendants the sum of $3,-000, which was paid by the company to the defendants on tne 29th May, 1993, in payment of a note' of the company of that' amount held by the defendants. The note was dated February; 2, 1893, had been discounted by the defendants for the company,' and it became due on June 5. 1893. The claim of the plaintiff is that the payments to defendants was in violation of the provisions of section 48 of chapter 683 of the Laws of 1892. That sec-' tion, so far as it is important here, is as follows:

“ No corporation which shall have refused to pay any of its notes or other obligations when due, in lawful money of the United States, nor any of its officers or directors, shall transfer any of its property to any of its officers, directors or stockholders, directly or indirectly, for the payment of any debt, or upon any other consideration than the full value paid in cash. No conveyance, assignment or transfer of any property of any such corporation by it or by any officer, director or stockholder thereof, nor any payment made, judgment suffered, lien created or security given by it or by any officer, director or stockholder when the corporation is insolvent or its insolvency is imminent, with the intent of giving a preference to any particular creditor over other creditors of the corporations shall be valid. Every person receiving by means of any such prohibited act or deed any property of the corporation shall be bound .-to account theieforto its creditors or stockholders or their trustees.”

It was found by the special term that the payment was not made with the intent of giving a preference to the defendants. The plaintiffs claim that this finding is not warranted by the evidence. On the 29th May, 1893, the company was in debt to the amount of about $60,000, mainly for bank discounts. Of this there was then past due $8,500, of which $7,000 became due May 19th and $1,500 on May 20th. Protest thereof had been waived. There was also about $8,500 that became due prior to June 5th. The entire indebtedness became due on or prior to September 6, 1893. A few days before 29th May, Mr. Barnett, the president of the company, was informed that the defendants were not willing to renew the note. He then proposed to give them a draft on Hull & Co., at four months; saying to them that they must get along with that, as he could not pay them money. Ho arrangement was then concluded. Hull & Co. were dealers in woolen goods at Poughkeepsie, and the company had sent them its goods for sale under a contract brought about by one of the defendants. On this deal, Hull & Co. owed the company on the 29th May about $4,700. On the 27th May one of the defendants and Mr. ¡Hall appeared at Ft. Ann, and on the 29th the note held by the defendants was paid by a draft on Hull & Co. of $3,075, due Hovember 4th, which Hull then and there accepted. Upon the same occasion, Hull & Co. advanced to the company $500, used to pay the pay roll of the week, and a draft of $370 was turned over to Mr. Barnett,—for what purpose does not appear. The balance of the claim of the company against Hull &Co. was settled by allowance for imperfect goods. The other property of the company consisted of its mill and machinery, stock of goods in in tlie mill, and accounts with commission merchants. The mill and machinery, according to the estimate of Mr. Barnett, was of the value of about $50,000; and the stock in the mill, $25,000. A witness for plaintiff estimates the value of the mill and the machinery at about $10,000, and that is about what it sold for afterwards, on a public sale under the order of the court. The stock was sold at public sale for $5,600. Of the accounts with commission merchants, there were two representing goods of the company to the amount of about $1,500; and goods bad been consigned to Whitman & Phelps, unaccounted for, to the amount of about $14,000, Whitman & Phelps had a large claim against the company, and some of the goods were defective. In Brouwer v. Harbeck, 9 N. Y. 589, 594, it is said:

“ A corporation, like an individual, is insolvent when it is not able to pay its debts. ‘ Insolvency 1 means a general inability to answer, in the course of business, the liabilities existing and capable of-being enforced. Cutten v. Sanger, 2 Younge & J. 459 ; 2 Bouv. Inst. 157.”

“Theterm “ insolvency,” as used in the bankrupt act, when applied to traders and merchants, has been held to mean an inability of a party to pay its debts as they become due, in the ordinary course of business. Toof v. Martin, 13 Wall. 40. Very dearly, in the present case, to say the least, the insolvency of the corporation was imminent. The further question then is, under the statute, was the payment made with the intent of giving the defendants a preference ?

The managers of the company were the president and secretary, Mr. Barnett, the president, testified that there was no intent to prefer the defendants; that he at that time considered the company solvent, with property enough to pay all its debts, if he could

have time to bring it around. Mr. Richmond, the secretary, testified that he did uot intend to give the defendants a preference, “ if all agreements were carried out.” It does not appear what the agreements were that he referred to. A preference was in fact made, in the sense that the defendants received their pay, and other creditors whose debts we re due did not. Nor did those whose debts became due afterwards, and before the defendants’ note, by its terms, become due. These two classes of debts amounted to about $17,000, and the defendants’ debt was, by the act of the officers of the company, placed ahead. This was purposely done, and the officers knew that there were then- no available assets to provide for the other debts. In Forbes v. Howe, 102 Mass, 427, 435, under a statute that avoided a sale made with a view to give a preference if the debtor, at the time, was in fact insolvent, although he may not have in fact contemplated insolvency, it was held that the phrase, “ with a view to give a preference,” should be construed to include “ an intent to give one creditor any advantage over others in respect of payment or security of his debt.” The same view was taken in Rasin v. Ammidown, 15 Hun, 422. There would seem to be no doubt about defendant’s receiving an advantage, and that the company, through its officers, meant it should be so. They knew that the company, with the moneys it then had, could not meet its obligations in the ordinary course of business as they become due. The company could pay one debt. It could not then pay all that were due, and it was, to say the least, very doubtful whether it could ever pay at all. It gave the defendants the benefit of the certainty. But the managers say, in a qualified way, that they expected to be able to pay all, and therefore there was no intent to prefer. Still, in two days after, and on the 31st May, a suit in behalf of a friendly creditor was brought, at the instigation of one or both of the managers, and on the 2d June a suit was brought against the company by the secretary himself, on a demand note held by him. of $3,000. Both of these suits were brought in order to obtain, if possible, a prefer-' ence, and there had been no change in the affairs of the company, after the 29th: This would not look as if the managers, on the 29th, believed in their ability to pay all with the means the company then had. It may be that they expected to get help through1 Hull & Co., or the defendants, and in some way to go on. This, however, would not validate the transaction. Every person is to-be presumed to intend the natural and probable consequences of his own acts. The intent to prefer is not rebutted by showing “that the debtor has also another motive to the proceeding, namely, an expectation of pecuniary or other future benefit to himself, by means of future loans of money, and being enabled thereby to continue his business.” Denny v. Dana, 2 Cush. 172. In Vennard v. McConnell, 11 Allen, 562, it is said :

“ The proposition cannot be maintained * * * that the payment of a debt by a party who is insolvent cannot be regarded as a preference, if made with the hope and expectation by the debtor that he will be able eventually to pay all his debts in full.”

See, also, Rison v. Knapp, 1 Dill. 195, Fed. Cas. No. 11,861; Silverman’s Case, 2 Abb. (U. S.) 243, Fed. Cas. No. 12,855.

An argument is based on the inconvenience of dealing with a corporation, where, without fault of the creditor, payment may be recovered back The trouble, if any, in that respect, it with the statute. The validity of the payment is not made to depend on whether it is made in the ordinary course of business, or on whether the creditor has any reasonable ground to believe the debtor insolvent, but simply on whether there is insolvency actual or imminent, and an intent to prefer. Bish. Insolv. (3d Ed.) § 183. If the statute is too severe, the remedy is not with the courts. The undisputed facts in this case show, I think, in substance, an intent to prefer the defendants, and it is no answer to this for the managers to say that they did not mean to do it. They knowingly and purposely did do it. The judgment should, I think, be reversed, on the ground that the evidence does not warrant the conclusion that there was not an intent to prefer.

Judgment reversed and new trial granted; costs to abide the event

All concur»


author: ADAMS, J.

text:
    Mary E. Daniels, Resp't, v. Empire State Savings Bank of Buffalo, App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed December 23, 1895.)

    1. Bams—Savings—Officers.
    Where an unmarried woman after making a deposit in a bank goes to Europe for a time but prior to her departure leaves one or more checks signed by her in blank with the cashier with instructions to use them in accordance with directions which he might thereafter receivefrom her, and upon her return from Europe marries, the agency thus conferred upon the cashier is for a particular purpose and covers only such time as she should he absent from the country and terminates with her return.
    3. Same—Estoppel.
    In such case, the principle that, when one of two innocent parties must suffer by reason of a fraudulent transaction, it shall be the one whose act made it possible for the fraud to he perpetrated, does not apply».
    Appeal from a judgment in favor of plaintiff.
    The defendant is a savings bank organized and existing under the laws of this state, and carrying on the ordinary business of a savings bank at the citv of Buffalo. Prior to September, 1892, it transacted business under the name of the The National Savings Bank of Buffalo. From the year 1868 until the commencement of this action, the plaintiff had been a depositor in and had had large financial transactions with, the bank. During all that time, and up to the latter part of June, 1892, one Edward S. Dann was the secretary and treasurer and the general financial manager of the bank» Upon the 17th day of June, 1892, the plaintiff's husband took the sum of $10,075 in currency, which had that morning been paid in upon a motgage, to the bank, and left it with Mr. Dann. He did not have his wife's pass book with him at the time of leaving the money, and it appears that Mr. Dann, after counting the same, made a package of it, and placed it in the vault, instead of mingling it with the other funds of the bank. Upon the following Monday, the 20th of June, the state bank examiners having instituted an examination of the bank, discovered that Dann had been, for many years, appropriating the moneys of the bank, and that, to a considerable extent, he had used the plaintiff’s account to conceal his fraudulent transactions. Soon after the discovery, was made the bank vault was opened, and it was then found that the money left by the plaintiff’s husband the Friday previous had been appropriated, and in its place wms substituted a slip, in Dann’s handwriting, which read as follows : “June 17, 1892. $10,075 belongs to Mary E. Daniels, put in for mortgage, per Judge Daniels.” After the defalcation of Dann was discovered, and criminal prosecution had been threatsned, he restored $10,000 of the money abstracted by him. Upon further examination of the affairs of the bank a check was discovered which bore the signature of the plaintiff, and was dated the 16th day of April, 1879, for the sum of $4,000. This check had not been charged against the plaintiff upon her pass book, although a lead-pencil entry thereof had been made, under the date of April 16, 1879, by Mr. Dann. This action was brought for the purpose, among other things, of compelling the defendant to credit the plaintiff with the sum of $10,075 as a deposit of that amount; and the defendant, on the other hand, sought to charge the plaintiff with the $4,000 check. The trial court found that the $10,075 was left by the plaintiff’s husband at the bank by way of deposit, and that the bank should be charged with the same, and it also refused to charge the plaintiff with the $4,000 check.
    George A. Lewis, for app’lt; Charles Daniels, for resp’t.
   ADAMS, J.

The evidence furnished by the plaintiff upon the trial of this aetion abundantly justified the conclusion reached by the learned trial court in regard to the transaction of June 17,1892. No exception has been taken to such conclusion, and therefore, so far as that feature of the case is' concerned, it is entitled to no further consideration. The main contention upon the argument, and the only one which the appellant is entitled to urge upon the attention of this court, relates to the $4,000 check. It dppears that in 1875 the plaintiff, whose name was Mary E. Enos, went to Europe for the purpose of spending a year in travel; that prior to her departure she left one or more checks, signed by her in blank, with Mr. Dann, with instructions to use them in accordance with directions which he might thereafter receive from her; and the check in question was undoubtedly one which had been so left by her with Dann. He had subsequently filled it up, and dated it as of April 16, 1879,"although prior to that, time she luid returned from Europe and married her present husband, Judge Charles Daniels. There is no evidence that- the. check was ever paid, or that it had ever gone through the bank; and the reasonable inference to be drawn is that it was used from time to time by Hr. Dann to cover some of his fraudulent transactions with the bank. Upon this state of facts, it is difficult to discover upon what theory it can be claimed that the learned trial court erred in its refusal to charge the plaintiff with the amount of this check The learned counsel for the appellant advanced several propositions, upon the argument, in support of his contention, none of which we think is tenable. The whole ground is so completely covered by the elaborate opinion of the learned justice that but little need be added to what is there so well said.

Considerable stress now appears to be laid upon the fact that the check in question was in no way altered by Dann, and that, in filling it up as he did, he was acting within the scope of his authority as the plaintiff’s agent. The obvious answer to this eonitention, however, is that the agency conferred upon Dann by the plaintiff was for a particular purpose, and to cover only such time as she should be absent from the country, and it undoubtedly terminated with her return to America in 1876. Two years thereafter she changed her name from Enos to Daniels. These facts, were, of course, all well known to Dann, and his knowledge was the knowledge of the bank. Gibson v. Bank, 98 N.Y. 87, And, with this knowledge, it is difficult to see anything in this contention upon which the defendant can rest its claim that the plaintiff should be charged with the amount of this check.

Again, it is urged that the bank is entitled to the benefit of this check, upon the principle that, when one of two innocent parties must suffer by reason of a fraudulent transaction, it shall be the one whose act made it possible for the fraud to be perpetrated. This principle might be invoked with great propriety if the circumstances of the case were different; in other words, if Dann sustained by the relation of a third party simply, and had no connection with the bank. But here, confessedly, he was not only the secretary and treasurer of the bank, but he had the general charge of its affairs, and was in fact himself the bank; and, bearing this intimate relation to the bank, it would be a strange perversion of the rule to hold that he might perpetrate a fraud like the one in question, and yet the bank itself be permitted to profit thereby.

We are unable to discover any error in the disposition made of this case in the court below, and are therefore of the opinion that the judgment appealed from should be affirmed.

All concur.