author: Talcott, P. J.:

text:
    CHARLES MANKE, Plaintiff in Error v. THE PEOPLE OF THE STATE OF NEW YORK, Defendant in Error.

      Challenge to fwror, who has formed an opinion — when properly overruled— Opini~ ion of expert — when inad/missible.

    On the trial of the plaintiff in error for murder, one Rhodes, called as a juror, stated that he had not heard the matter tallied over by anybody except his family; that he had read of it in the newspapers, and from what he bad read had formed an opinion, based upon its truthfulness, which he then held and which it would require evidence to remove; that he could sit as a juror and try the case fairly and impartially, notwithstanding it, and could hear the evidence and render a verdict uninfluenced by it.

      Held, that a challenge “ for principal cause, on the ground that he had formed an opinion of the case,” was properly overruled.
    The prosecution sought to show, mainly by circumstantial evidence, that the plaintiff in error shot one Atloff with a gun loaded with powder and shot, and that a piece of paper, found near the body, and claimed to have been a part of the wadding, was part of a paper to which the plaintiff in error was a subscriber, and that another part of the same issue of the paper was found in his house.
    Upon the trial the witness who found the piece of paper was called, and having testified that he had used firearms a good deal, and was familiar with the apqiearance of wadding fired from a gun, the paper was shown to him and he was asked whether, when found, it had the aqipearance of wadding fired from a gun, and answered, against the objection and exception of the counsel for the Xilaintiff in error that it had.

      Held, that this was error, as the question was not one to be determined by the opinion of experts.
    Writ of error to the Court of Oyer and Terminer of Erie comity, to review the conviction and sentence of the plaintiff in error, of murder in the first degree.

      A. G. Mice, for the plaintiff in error.

      Mobert Q. Titus, district attorney, for the people.
   Talcott, P. J.:

This is a writ of error to the Erie Oyer and Terminer. The return of the clerk of Erie county sets forth an indictment, found in the Court of Oyer and Terminer in April, 1878, against the plaintiff in error for the murder of John Atloff, which is charged to have been committed by the plaintiff in error in the town of Elma in said county on the 2d day of April, 1878. In two of the counts of the indictment the said murder is charged to have been committed by the discharge of a shot-gun loaded with powder, shot and a leaden bullet, and in a third count the crime is charged to have been committed by beating Atloff on the head with a stone. The said county clerk returns as being indorsed on the said indictment the following memorandum, viz. :

“ Court of Oyer and Terminer, April Term, 1878.
The People v. Charles Manke. Indictment for murder. Robert C. Titus, district attorney. A true bill. Horace W. White, foreman. Arraigned the 13th day of April, 1878. Plead not guilty. Tried the 2d to 11th day of May, 1878. Verdict: guilty. Piled 13th day of April, 1878.
“Lewis Counsel, trial set down for Monday, April 22, 1878. May 2d, trial begun and continued to May 11, 1878. May 11, 1878, verdict: Guilty of murder in the first degree, as charged in the indictment; sentenced May 11, 1878, to be hung June 21, 1878, between 10 a. m. and 2 p. m.”

These memoranda, by whom, and when made, does not appear, contain the only statement that the said Manke was ever arraigned or ever pleaded to the said indictment.

The said clerk’s return also contains a copy of a bill of exceptions, and a statement to the effect that “ at a Court of Oyer and Terminer held at the court house in the city of Buffalo, in and for the county of Erie, on the 1st Monday of April, 1878, Present- — Hon. Charles Daniels, justice presiding, and Henry H. Rogers, and Byron A. Churoi-iill, justices of session.” “ That the said Charles Manke, having been indicted for the murder of said John Atloff, was duly tried and convicted by the verdict of a jury of murder in the first degree, as alleged in the indictment, and was thereupon on the 11th day of May, 1878, senténced to remain in the custody of the sheriff" of Erie county until Friday, the 21st day of June, 1878, and that on that day, betwen the hours of 10 o’clock in the forenoon and 2 o'clock in the afternoon, to.lie hanged by his neck until he be dead.”

To all this there is appended a further certificate of the clerk of Erie county, stating, among other things,' that he has compared the annexed copy of the indictment and indorsements thereon, and the annexed copy of minute of conviction, with the sentence of the court thereon, and the writ of error, bill of exceptions and indorsements on each, and that the same are true copies, etc. “ That the said conviction was had upon said original indictment, and no record of the judgment on said conviction has teen signed and filed.”

When this writ of error and return was presented to this court, at the June Term, 1878, the counsel for the plaintiff in error, among other errors alleged in behalf of the ¡ffaintiff in error, claimed that the Court of Oyer and Terminer had erred in passing sentence upon the plaintiff in error, without having first asked him what he had to say why sentence should not be passed upon him according to the said conviction, and this court seeing that, if this claim of the counsel for the plaintiff in error was well founded in fact, that the plaintiff in error would be entitled to his discharge, unless a new trial should be awarded to him for some error committed on the trial (Messner v. The People, 45 N. Y., 1), and seeing that the clerk of the court below had certified to us that “no record of the judgment on such conviction had been signed and filed,” we dismissed the writ of error in order that a full record of the judgment should bo made up by the district attorney, or in case of his neglect to make up and file such record the defendant might cause one to be made up under 2 Revised Statutes, 738, section 4. The Court of Appeals, however, thought it was the duty of this court to proceed upon such of the elements of a judgment-roll as were presented by the clerk’s return, and to render judgment upon such allegations of error as appeared from such return, holding, “It is for the plaintiff in error to show affirmatively that error has been committed. If the record which he brings up by his writ does not contain the proceedings in the court below wherein the error, if done, would appear, he fails to show that it was.done, and the appellate court cannot and need not pass upon that allegation of error.” As neither the plaintiff, nor the defendant in error have applied for a writ of certiorari to the Oyer and Terminer to bring up any other matters which appear in this case by the records of that court, we proceed to consider only'the errors alleged to have occurred on the trial as presented by the bill of exceptions.

The first error alleged by the plaintiff in error is in regard to the disposition of a challenge to one Eiley Ehodes, one of the jurors summoned to try said indictment, who, being examined under oath, stated in substance that he had not heard the affair talked over by anybody except his own family, but that he had read of it in the newspapers, and from what he had heard and read he had formed an opinion in the case; that he held that opinion now, and that it would require evidence to remove that opinion; that he based his opinion on the truthfulness of that report; that ho could sit as a juror and try the case fairly and impartially notwithstanding the opinion he had formed from what he had read ; that ho could hear the evidence and render a verdict in the case without being influenced by any opinion he might have formed, etc. Thereupon the court held that the said Eiley Ehodes was competent as a juror in the case. The act of 1872 (Laws of 1872, ch. 475, 1133) provides that the previous formation or expression of an opinion in reference to the circumstances upon which any criminal action is based, or in reference to the guilt or innocence of the prisoner or a present opinion in reference thereto, “ shall not be a sufficient ground of challenge for principal cause to any person who is otherwise legally qualified to serve,” etc. * * * “ Provided the person * * * shall declare on oath that ho verily believes that he can render an impartial verdict according to the evidence, * * * and that such.previously formed opinion or impression will not bias or influence his verdict, and provided the court shall be satisfied that the person so proposed as a juror does not entertain such a present opinion as would influence bis verdict as a juror.” The only challenge to the juror in this case is stated to be a challenge “ for principal cause on the ground that he has formed an opinion of the case.” The points made in relation to the overruling of the challenge to the juror in this case are : First. That the juror did not bring himself within the proviso of the act referred to. Second. That the judge did not find, as á fact, that the juror did not entertain such present opinion as would influence his verdict, but decided as matter of law that the juror was competent. It does not appear that the juror was challenged to the favor, which would bring up the question of his indifferency to be decided upon by the court as a question of fact (Thomas v. The People, 67 N. Y., 218), but the juror having on oath declared substantially aq required by the statute, it remained only for the trial court to bo satisfied that he did not entertain such a present opinion as would influence his verdict as a juror. That the court was so satisfied is sufficiently manifested by its ruling, holding that the juror was competent. The decision in the case of Greenfield v. The People (13 Hun, 242), cited by the counsel for the defendant in error, has recently been reversed by the Court of Appeals on the question of fact arising upon a challenge to a juror, but we understand that reversal to have been placed entirely upon the ground that the juror thus challenged had formed his opinion upon having read what purported, to be a statement of the sworn evidence given by the witnesses on the first trial of the case, and upon the ground that an opinion having been derived from such a source was likely to be more firm and less liable to be changed on another trial, than in a case where the opinion of a juror has no other foundation than appeal’s in this case.

The bill of exceptions does not set out the substance or purport of all the evidence which was relied on by the prosecution, as tending to establish that the prisoner was the person who committed the homicide. We infer, however, from so much as is stated in the bill of, exceptions that the principal reliance of the prosecution to connect the prisoner with the act of killing was upon circumstantial evidence. Amongst other evidence it appeared that Atloff was shot while riding along a road called the Bullís road, with a gun loaded with powder and shot, and that a piece of paper partially folded up, and which was claimed to have beou a part of the wadding with Avhich the gun was loaded, ivas found in the Bullís road, and very near where Atloif’s body lay after he was killed. That the piece so found was part of a newspaper published at Buffalo, in the German language, called the Democrat and Weltburger,” and that it ivas a part of that paper which was issued on the twenty-first of March ; and evidence ivas given tending to show that a portion of the ‘ ‘ Democrat and Weltburger ’ ’ was found in the prisoner’s house the day after the homicide, the prisoner being a regular subscriber to that paper. On the examination, in behalf of the prosecution, of the witness who found the paper, claimed to have been a part of the wadding with which the gun was loaded, the district attorney asked the witness the following questions in relation to the piece of paper .so found : “ Q. You spoke about some paper wadding — look at that ? A. Yes, sir; I should think that was it; it is what I call wadding. Q. .Have you seen wadding that has been shot from a gun ? A. Yes, sir. Q. And noted its appearance? A. Yes, sir; I have used fire-arms a great deal myself.” The court then asked the witness as follows : “ Then you mean to say you are familiar with the appearance of wadding shot from a gun ? Yes, sir ; I think I am. You may answer whether that (the piece of paper found, and claimed to have been a' part of the wadding with Avhich the gun was loaded) had that appearance or not ? ” The question and the answers to it were objected to by the counsel for the prisoner, on the ground that the subject Avas not one of science or skill; that the opinion of the Avitness Avas incompetent and improper ; that the paper and its appearance should be described, and the jury should draAv the inference. The court overruled the objection, and allowed the Avitness, so far as he could, to state the facts as he observed them, and the prisoner then and there excepted to the decision, and the witness answered, “Yes, sir; it had the appearance of being AA’-adding shot from a gun.”

This question, as to whether the piece of paper produced had, Avhen found, the appearance of having been used as Avadding for a gun, and the appearance of having been shot from a gun, Avas, so far as Ave can judge from such portions of the evidence as are recited in the bill of exceptions, an important, and to a certain extent, a vital question in the case. The question propounded to the witness was put to him for the purpose of getting his opinion as an expert accustomed to the use of fire-arms, whether the piece of paper in question had been used as wadding shot from a loaded gun. He had claimed some experience in such matters, and without doubt his opinion on the subject was sought for the purpose of influencing the jury in their conclusion, as to whether the prisoner was the party who committed the homicide, as he was a subscriber to the paper, from one number of which it had apparently been taken, a portion of which paper was found in the prisoner’s home the day after the homicide. We do hot think the question was one which it was competent, as a matter of legal evidence, to determine by the opinion of experts. It is well-settled that “the testimony of experts, as experts, cannot lie received on subjects of general knowledge, familiar to men in general, and with which jurors are presumed to be acquainted.” (Concord R. R. v. Greeley, 3 Fost. [23 N. H.], 237.) The opinions of experts are not competent, unless questions of science are involved.. (People v. Bodine, 1 Denio, 281; Lyman v. State Ins. Co., 14 Allen, 329.) Witnesses must testify to facts, not to their inferences or conclusions. It is only where the matter inquired of lies within the range of the peculiar skill and experience of the witness, and is one of which the ordinary knowledge' and experience of mankind does not enable them to see what inferences should be drawn from the facts, that the witness may supply opinions as their guide. (Kennedy v. The People, 39 N. Y., 245.) See, also, for various cases where opinions have been held inadmissible. (Messner v. The People, 45 N. Y., 1; People v. Rector, 19 Wend., 569; Wilson v. The People, 4 Parker, 619; Merritt v. Seaman, 2 Seld., 168; Keller v. N. Y. C. R. R. Co., 2 Abb. Ct. App. Dec., 480.)

In the celebrated case of The Commonwealth v. Webster (5 Cush., 295), a question arising, whether a writing was produced with a peculiar instrument found in the defendant’s possession, on an offer to ask a witness his opinion, Chief Justice Shaw said : “We think the witness opinion quite inadmissible.”

So we think, in this case, the inference to be drawn from the piece of paper was not a question of science or peculiar skill, but was a question open to common observation; and whether that appearance indicated that it bad been shot from a gun, could bave been determined by the jury, who are to be presumed to bave been men of ordinary intelligence, from a description of the facts touching the appearance of the paper' when found, such as the manner in which it was folded ; whether it appeared to have been partially burned ; whether it bore upon its creases powder stains, etc.; and that the opinion of the witness, formed by a process of reasoning from the facts known to him, was incompetent, and was in effect substituting him in place of the jury, who were as competent to draw correct inferences • as the witness could be. It is claimed that the latter portion of the ruling of the court on this subject in some measure qualified the overruling of the objection taken by the prisoner’s counsel. We do not so understand it. The ruling apparently not only permitted the witness to state his opinion as to what the appearance of the piece of paper indicated, but moreover permitted him to state the facts as far as he could.

The objection to the question whether the piece of paper found had the appearance of being wadding shot from a gun was expressly and distinctly overruled, so that the ruling in effect was that the question was competent, and it was evidently so understood, as the witness immediately proceeded to answer it. “ Yes, sir ; it had the appearance of being wadding shot from a gun.” This answer was specifically objected to in the objection stated in the bill of exception.

We concede that the question just discussed lies very near the line which divides cases in which opinions are competent to be given in evidence from those which are clearly inadmissible. But if it were a matter of doubt whether the evidence was proper or otherwise, we should feel bound, in favor era vitce, to hold that in this case it was inadmissible, as it was apparently of vital consequence in making out the chain of circumstances whereby the conviction of the prisoner was secured.

After the defence had concluded, and the prisoner Manke had been sworn in his own behalf, and had among other things given evidence tending to show that he was not at or near the Bullis road on the day of the homicide, the People called a young woman named JUberhardt (who had been sworn in behalf of the People on the third day of the trial, and had then given testimony, tending only to fix tbc time of clay when the killing took place by stating the time when and the place where she had seen another person, who had first discovered that Atloff had been killed), and offered to show by her that she was on the Bullís road shortly before the time when the body was found, and saw the prisoner partially concealed, by the side of the Bullís road, near the place where Atloff was killed.

The counsel for the prisoner objected to this evidence, on the ground that such proof was part of the People’s case in chief, and after having rested, and after the prisoner had concluded his defence, such evidence was improper and incompetent. The court, however, overruled the objection, and allowed the evidence to be given on the ground that it contradicted the statement of the prisoner made in his testimony in his own behalf, to the effect that he was not at or near the place where the homicide was committed on the day when it took place. The defendant excepted to the admission of the evidence, and the girl Eberhavdt then testified that on the day of the homicide she was on the Bullís road and saw the prisoner partially concealed near the road and near the place where Atloff was killed. • Although it would seem that this evidence of the girl Eberharclt, if brought to the knowledge of the district attorney before she left the stand, on the third day of the trial, would have formed an important link in the chain of circumstances relied upon for conviction, and ought then to have been produced, still for whatever reason it may have been omitted at. that time, it was made admissible in rebuttal of the statement of the prisoner referred to by the court, and its admission for that purpose was wholly within the discretion of the court duly weighing the circumstances which had a tendency to throw suspicion upon the testimony then for the first time offered. Strictly speaking this testimony could only be availed of as impeaching the statement of the' prisoner, to rebut which it was admitted, but from the nature of the testimony thus admitted, it was almost impossible that it should not, if believed, have the effect to influence the jury upon the principal charge, and it is to be presumed that the court took all proper care to restrain its effect to the purpose for which it was admitted.

The oiler on the part of the prisoner, after the case had been closed, with the exception of certain named witnesses, proposed to be called by the prisoner to contradict the testimony of the witness JEberhardt as to particular statements, to call other witnesses to impeach her general character, rested also in the sound discretion of the court in view of all the facts which had transpired on the trial, and we cannot see from the bill of exceptions that there was any abuse of that discretion in refusing to permit the trial to be reopened for such purpose.

As the counsel for neither party moved for a certiorari to bring up any additional portions of the record of the Oyer and Terminer to prove or disprove whether the point made by the counsel for the prisoner that he was not asked, previous to sentence, if he had anything to say why judgment should not be given, and as we have arrived at the conclusion that the admission of the opinions of the witness as to the appearance of the gun-wad was error, for which the conviction must be reversed, we deem it unnecessary to send such a certiorari or to examine on such portions of the record as are returned in this writ of error, whether any, and if any, what presumption as to whether such question was duly asked of the prisoner is to be made.

Conviction and judgment reversed, and the proceedings remitted to the Oyer and Terminer of Erie county, with directions for a new trial in that court.

Smith and Haedih, JJ., concurred.

Ordered accordingly.


source: Caselaw Access Project

license: Public Domain

text:
    THOMAS E. PATTISON, Respondent, v. THE SYRACUSE NATIONAL BANK, Appellant.

      National bank —may receive securities as a gratuitous bailee — liaMlity of the bank if they are lost through its gross negligence.

    A national bank has power to agree to receive, as a gratuitous bailee, securities to be deposited in its vault for safe keeping, and is liable to the depositor thereof if such securities are lost through its gross negligence.

      Appeal from an order denying a motion by the defendant for a new trial, made upon the minutes of the justice before whom the action iras tried.

      JD. Pratt, for the appellant.
    The bank had no authority under its charter to transact the business of receiving deposits of specific articles gratuitously. (Brice on Ultra Vires, 28-34; Beaty v. Knowles, 4 Pet., 152; Pearce v. Madison, etc., R. B. Co., 21 Plow., 440; The People v. The Utica Ins. Co., 15 J. R., 358; Halstead v. Mayor of New York, 3 Com., 430; Hood v. N. Y. andN. II.B.B. Co., 22 Conn., 502; Chicago Building Society, 65 111., 458; De Graff v. Ames Lin. Thread Co., 21 N. Y., 127, 128; Parish v. Wheeler, 22 id., 503; Bissell v. M. 8. and N. I. R. R. Co., id., 288; Head <& Amory v. The Providence Co., 2 Cranch, 127, per Ch. J. Marshall ; First Nat. Bk. of Lyons v. The Ocean Nat. Bk., 60 N. Y., 278; Wiley v. The Bk. of Brattleboro, 47 Vt. R., 546; Lloyd v. West Branch Blc., 15 Penn., 172; see Bankers’ Magazine, Dec., 1867, p. 453; see, also, Bullard v. Bank, 18 Wal., 589.) The negligence which will, in cases of gratuitous bailment, make the bailee liable for the loss, consists in that want of care which a man of common sense, though heedless and careless, would observe in his own business. (Story on Bailment, § 64; Jones on Bailment, 8, 49, 118; Tompkins v. Saltmarsh, 14 Serg. & R., 275; Story on Bailment, § 65, and notes; Digest Lib., 16, tit. 3, chap. 32; Justinian’s Inst. Lib., 3, tit. 15; Pothier’s Pandects Lib., 16, tit. 3, § 25; 1 Domat, b. 1, tit. 7, § 3, arts. 2, 3; Jones on Bailment, 8, 10, 46, 119; Addison on Contracts, 524; Kent’s Com., 560, 562, and notes; Coggs v. Bernard, 2 Ld. Raym., 909, 914; Shultz v. Blackburn, 1 H. Blackstone, 158 ; Foster v. Essex Blc., 17 Mass., 479; Whitney v. Lee, 8 Mete., 91; Smithy. Nat. Bk. of Westfield, 99 Mass.,611; Lloydy. The West Branch Bk., 15 Penn., 172; Scott v. Nat. Bk. Chester Valley, 72 id., 471; Laforgey. Marlin, 11 Lou. Ann. R., 462; Mech. and Trad. Bk. v. Gordon, 5 Lou. R., 604; Anderson y. Foreman, Wright’s Ohio R., 595; 18 Geo. R., 495, 513; Stanton y. Bell, 2 Hawks, 195; McKay v. Hamblin, 46 Miss., 472; Spooner y. Mattison, 46 Vt., 300; Geblin v. McMillen, 5 Moore [N. S.] P. C., 434.) As the degree of negligence necessary to make a gratuitous bailee liable must be so gross as to raise an imputation of fraud and a want of good faith, it follows as a corollary that, if he takes the same care of the deposit which he takes of his own valuables, he cannot be made liable. This rule is copied from the civil or Roman law. (Inst, of Justinian Lib., 3, tit. 15, § 3; Pandect’s Lib., 16, tit. 3, ch. 20, 32; Pothier traits du dep., notes 23, 24; Domat Lib., 1, tit. 7, § 3, notes 2, 3.) The same rule was adopted early into the common law. (Bracton Lib., 3, ch. 2, § 1; Jones on Bailment, 22, 23, 31, 32, 46, 47; Kent’s Com., vol. 2, 560, 562, 563; Edwards on Bailment, 68, 69, 71.) The same rule is adopted in many of the States, and is repudiated in none of them. (Foster v. Essex BJc.; WJiiting v. Lee; Smith v. Mat. BJc. of Westfield; TompJcins v. Saltmarsh ; Loyd v. West Branch BJc.; Scott v. Mat. BJc. of OJiester Valley ; Anderson v. Foreman ; McMabbs v. LocJcJiart; Medí, and Trad. BJc. v. Gordon ; McKay v. Hamblin ; Spooner v. Mattison cited supra.) If the robbery was committed by an employee, the bank would not be responsible. . (Foster v. BJc. of Essex ; Scott v. Mat. BJc.; Smith v. BJc. of Westfield; First Mat. BJc. of Lyons v. Ocean Mat. BJc.; Giblin v. McMillen cited supra.)

      George F. GomstocJc, for the respondent.
    An incorporated bank can receive a special deposit, and be bound to return it. (Marine BJc. v. Fulton BJc., 2 Wallace, 252, 256; Encyclopedia Americana, vol. 1, “Bank;” Foster v. Essex BJc., 17 Mass., 479; First Mat. BJc. of Carlysle v. Graham, 4 Weekly Notes of Cases [Pa.], 205, decided by Sup. Ct. of Penn’a in June, 1877; S. G.,85 Penn. St., 91; also, in 16 Albany Law Jour., 95; see, also; Van Lenuen v. First Mat. BJc. of Kingston, 54 N. Y., 671; 61 Me., 369; JencJcs v. The First Mat. BJc. of Port Jervis [Ct. App., 1877], 69 N. Y, 382.) The question of gross negligence was properly submitted to the jury. (Doorman y. JenJcins, 2 Ad. & Ellis, 256; Tracy v. Wood, 3 Mason, 132; Wilson v. McIntosh, 1 Starkie [N. P. C.], 237; GlarJc v. Earnshaw, 1 Gow., 30; Whart. on Negligence, § 240; Stout v. It. B. Go., 17 Wall., 657; Dearborn v. Un. Mat. BJc., 61 Me., 369; Erie BJc. v. Smith et al., 3 Brewster [Pa.], 9; First Mat. BJc. of Carlisle v. Graham, 4 Weekly Notes [Pa.], 205 [Aug. 1, 1877]; 85 Penn. St., 91; Storer v. Gowen, 6 ShepIcy [Me.], 174; Mytton v. Code, 2 Strange, 1099; 3 Bingham’s New Cases, 468; The Phil, and R. R. R. Co. v. Bpearem, 47 Penn. St, 305; Westchester, etc.; R. R. Co. v. McÉlwee, 67 id., 315; Bernhardt v. <Sbr., etc., R. R. Co., 23 How. Pr.: Ernst v. ÍAícZ. J¿. it R. Co., 35 N. Y., 39; 38 id., 49; 50 id., 23, 26; Booth v. Wilson, 1 Barn. & Aid., 59; §§ 461, 462, 463, 465, 468; Whart. on Negligence ; The Third Nat. Bk. of Baltimore v. Boyd, 44 Maryland, 47, in error; Griffith v. Ziyperwich, etc., 28 Ohio St., 388; Moore v. Westcotl, 21 N. Y., 103; Mattison v. N. Y. C. R. R. Co., 62 Barb., 364; Hume v. Mayor, etc., 47 N. Y., 639; Gillespie v. Newburg, 54 id., 468; Malloys. N. Y. C. R. R. Co., 58 Barb., 182; Keating v. N. Y. C. R. R. Co., 49 New York, 673.)
   Talcott, P. J.:

This is an appeal from an order denying a motion for a new trial after a verdict at the Onondaga Circuit.

The action was brought for the conversion by the defendant of certain securities which had been left with the defendant’s teller, to be deposited in the vault of the defendant for safe keeping as a gratuitous bailee. The action was once before tried, when the plaintiffs were nonsuited, and, on exceptions sent to the General Term in the first instance, a new trial was granted in this court, upon the ground that certain questions of fact should have been submitted to the jury ; and, among others, the question whether the deposit was received by the teller in his individual capacity, or whether, in receiving it, he was acting for and in behalf of the bank. (See the case reported, 4 N. Y. Sup. Ct. [T. & C.], 96, and 1 Hun, 606.) On the second trial, this question was left to the jury, and they must be deemed to have found that the teller, in receiving the custody of the package, acted in his official capacity as teller of the bank, and that the contract of bailment was with the bank, and not with the teller, individually. (See Yerkes v. Nat. B’k of Port Jervis, 69 N. Y., 382.) This court, therefore, must necessarily have passed upon the question that such a bank could make itself liable by the receipt of such a deposit by its properly authorized agent or officer.

The bank set up, in defence of the action, that the plaintiff’s package was feloniously stolen from the bank, Avitkout its fault or negligence.

The court had instructed the jury that, if they were satisfied that the package was lost, without the gross neglect of the defendant, then the defendant was entitled to their verdict, and discussed at some length Avkat constituted gross negligence, and to the instructions of the learned judge on this subject no exception appears to have been taken by the defendant’s counsel. That a gratuitous bailee is liable for the loss of a special deposit seems to have been agreed to in the opinion of Judge Allen in the case of the First Nat. B’k of Lyons v. The Ocean Nat. Bk. (60 N. Y., 278), although Judge AlleN thought, in that case, that the receiving of special deposits having been outside of the ordinary business of the bank, it Avas not within the scope of the general powers or apparent authority of its executive and ministerial offices to bind the bank by a contract for such a bailment.

The opinion of Judge AlleN, however, Avas not adopted by a majority of the court, which only concurred in the result.

There Avas evidence to go to the jury tending to show that the robbery of the bank, on the occasion when the plaintiff’s package was alleged to have been lost, must have been occasioned by the gross negligence and inattention to their duties of the officers of the bank. The presumption was that the robbery must have occurred during banking hours, and was committed by some person who came into the bank and stole the package, together with some money of the bank, and walked out again without detection. It is unnecessary to state all the evidence and circumstances tending to show that the robbery could only have been suffered through the gross negligence of the officers and employees of the bank. Suffice it to say that, in our opinion, there was evidence to go to the jury on the subject, and that tribunal was the proper one to determine the question of fact. (Doorman v. Jenkins, 2 Adol. & Ellis, 256; Tracy v. Wood, 3 Mason, 132; Wilson v. McIntosh, 1 Stark. [N. P. C.], 237; Dearborn v. The Un. Nat. Bk., 61 Me., 369; Erie Bk. v. Smith et al., 3 Brewster [Pa.], 9; Whart. on Negligence, § 240.)

We think, therefore, that the order refusing a new trial Avas correct.

Order refusing now trial affirmed.

Smith, J., concurred ; Hardin, J., not sitting.

Ordered accordingly.


text:
    THE HOMŒOPATHIC MUTUAL LIFE INSURANCE COMPANY, Appellants, v. SIDNEY A. SIXBURY and others, Respondents.

      Failure of a plaintiff in foreclosure to refer to a second mortgage held by him. — effect thereof — requirement that the purchaser shall take subject thereto — renders the sale irregular.

    In this action, brought by the plaintiff to foreclose a mortgage, a judgment in the usual form was entered directing a sale of the premises by the sheriff. The plaintiff at the time of bringing the action was, and still is, the owner of a second mortgage upon an undivided one-half interest in the same premises described in the first mortgage; no reference thereto was made in the complaint or judgment ; upon the sale the plaintiff’s agent required all bids to be made with reference to the terms of sale by which the purchase was to be made subject to the said second mortgage owned by the plaintiff.

      Held, that this was an irregularity which justified an order setting aside the sale.
    Appeal from an order made at Special Term, setting aside a sale under a judgment of foreclosure, entered in tbe above entitled action.

      Wm Henry Arnonx, for tbe appellants.
    Tbe Mills mortgage was not cut off by tbe foreclosure. (Reynolds v. Parle, 53 N. Y., 36, 41; Gaye v. Brewster, 31 id., 215; Brainerd v. Cooper, 10 id., 356; Boot v. Wheeler, 12 Abb., 294; Harries v. Beach, 3 Johns. Ch., 459; Draper v. Clarendon, 2 Yern., 517; Godfrey v. Chadwell, 2 id., 601; Moret v. Westerns; 2 id., 663; Hobart v. Abbott, 2 P. Wins., 643; Palle v. Clinton, 12 Yes., 48, 59; Bishop of Winchester v. Beaver, 3 id., 314; S. C., 11 id., 197; Sherman v. Cox, 3 Ch. Rep., 46; Gore v. Staclcpoole, 1 Dow [II. of L.], 31; Benedict v. Gilman, 4 Paige, 58; Bloomer v. Sturges, 58 N. Y., 168, 175, per Johnson, J.; Johnson v. Carr

      dage, 31 Me., 18; Doe v. McLoskey, 1 Ala., 708.) Being held by the plaintiff, the Mills mortgage could not be cut off unless the plaintiff had sot it forth in the complaint. The court otherwise would not have jurisdiction of the subject-matter of such mortgage. (Lewis v. Smith, 9 N. Y., 502; Bailey v. Ryder, 10 id., 363; Rome Bx. Bk. v. Bames, 1 Keyes, 588, 592; Frost v. Boon, 30 N. Y., 446; Belsey v. Western, 2 N. Y., 500, 506, 507; Approved Peck v. Mallams, 10 N. Y., 548; Fergusony. Ferguson, 2 id., 360; Crockett v. Lee, 7 Wheat., 522; In the Matter of Ilowe, 1 Paige, 125.) Or unless some defendant should' bring the matter in by way of answer. If subsequent incumbrances are not stated in the complaint, and the holders thereof are not made parties, it is a defect which any of the defendants may set up in their answer. (New Code', § 498; Haines v. Hollister, 64 N. Y., 1, 4.) If such an objection is not taken by answer, the defendant is deemed to have waived it. (New Code, § 499; Zabriskie v. Smith, 13 N. Y., 332 [see p. 336]; Pottery. Bllice, 48 id., 321; Tower v. White, 10 Paige, 395.) In the absence of an answer, the plaintiff can have no relief not supported by his statements in the complaint, and demanded by his prayer for relief. {Simonson v. Blake, 12 Abb. Pr., 331; Bailey v. Ryder, 10 N. Y., 363; Lewis v. Smith, 9 id., 502.)

      C. B. Stevens, for the respondents.
   Talcott, P. J.:

This is an appeal from an order made at the Special Term in Lewis county, setting aside a foreclosure sale. The mortgage foreclosed bears date on the 9th day of December, 1865, and was made by the defendants, Sidney A. Sixbury and Samuel E. Skinner, to John O’Donnell, and came to the hands of the plaintiff by virtue of sundry mesne assignments. It covers a three story brick store in the village of Lowville, in said county of Lewis, which is shown to be worth the sum of $5,000. Sixbury and Skinner were the owmers in fee of the mortgaged premises at the date of the mortgage. The principal sum secured by the mortgage had been reduced by payment before the foreclosure to $2,500. Subsequent to the giving of the mortgage, Sixbury and Skinner conveyed the premises to Ezra W. Stanford and Charles C. Lamphere. Lamphere, in May, 1870, conveyed his undivided half of the premises to George E. Mills, who executed back to said Lamphere a mortgage on the said undivided half interest to secure the purchase-money for $2,125. Ezra W. Stanford mortgaged his undivided half interest to James H. Stanford for $1,900.

It seems that the- plaintiff, at the time of the commencement of the foreclosure suit, had become the owner of the mortgage given by George E. Mills to Charles C. Lamphere, upon the undivided half of the premises purchased of said Lamphere by Mills. The complaint in the foreclosure case, however, did not set up the said Mills mortgage and contained no allusion thereto, but was a complaint in the ordinary form "for the foreclosure of the mortgage of Sixbury and Skinner. None of the defendants put in any answer, and on the 26th of February, 1878, a judgment of foreclosure was entered in the ordinary form on the Sixbury and Skinner mortgage. The premises were ordered to be sold by the sheriff of Lewis county, and out of the moneys arising from the sale, he was ordered, after deducting the fees and expenses of sale and any liens for taxes or assessments, to pay over to the plaintiff the amount reported due on the said bond and mortgage ($2,537.42) and the plaintiff’s costs ($340.04), and that he deposit the surplus, if any, with the treasurer of Lewis county to the credit of the action. The sheriff of Lewis county advertised the premises to be sold in pursuance of the judgment, on the 12th day of April, 187 8. The advertisement of sale was in the ordinary form and contained no reference to the Mills mortgage or any other incumbrance than the Sixbury and Skinner mortgage. At the day and place of sale, the plaintiff, by their agent, appeared, and sundry parties interested in the premises also appeared, and the agent of the plaintiff produced a certain writing purporting to be the terms and conditions of the sale of the said premises, stating, among other things, that “the property is sold subject to a mortgage amounting to the sum of $2,125, on an undivided half interest in the property, with interest on the said sum from May 21, 1877, and which said mortgage is over due.” And the agent of the plaintiff required the persons bidding to subscribe to the said terms of sale, and stated that if any bidder refused to subscribe to the said terms of sale, his bid would be rejected, and the property would be put up again and be sold to a bidder who would sign the terms of sale. The persons other than the plaintiff’s agent, who appeared to bid at said sale, appeared to have been taken by surprise at the condition that the property was to be sold subject to the second mortgage, and protested against such condition, and endeavored to procure the agent of the plaintiff to consent to an adjournment of the sale; and Miles H. Bronson, who held a conveyance of Ezra W. Stanford’s interest hi the premises, given to him for the purpose of enabling him to protect the interest of said Ezra W. Stanford on such sale, by his counsel appeared at the sale and asked an adjournment thereof for five days, in order to examine the law on this subject, it being claimed by said Bronson and Stanford that the judgment gave no authority for selling the said premises subject to the said second mortgage.

The sale was adjourned for thirty minutes, after the expiration of which time the sale was reopened. The plaintiff’s agent bid, in plaintiffs behalf, $2,945, being the amount of the judgment, interest and costs, and expenses of the sale. Bronson then bid $3,000. The plaintiff’s agent then asked Bronson if that bid was subject to the second mortgage. Bronson then said, you have no right to impose those conditions, and refused to bid on those conditions. E. W. Stanford then bid $3,000, and it was struck off to him ; but he refused to sign the conditions on account of what was stated therein in reference to the second mortgage. The sheriff then put up the property again, on the original bid of the plaintiff’s agent, and it was struck ofi’ to the plaintiff on that bid, and the agent immediately obtained the sheriff’s deed. It appears also that Sixbury, one of the mortgagors, attended the sale for the purpose of bidding, but was prevented from bidding by the terms of sale, which made the sale subject to the lien of the Mills mortgage. Sixbury swears that he would have bidden a larger sum than $3,000 for the premises, but was unwilling to bid at all subject to the said second mortgage.

We are of opinion that the requisition in the terms of sale, that the sale should be subject to the Mills mortgage, was unauthorized, and rendered the sale irregular, and that the Special Term was fully justified in setting it aside, for irregularity. The practice of the court requires that the complainant, in his bill, should set out all his claims upon the mortgaged property, and have the same in that suit duly litigated and disposed of by the decree, and that if he omits to set out any incumbrance which he holds upon the premises junior to the mortgage described in the bill, such junior incumbrance will be cut oil' by a sale on a decree foreclosing the first mortgage, and making no allusion to any further incumbrance. (Tower v. White, 10 Paige, 395; Roosevelt v. Ellithorp, id., 415; Wheeler v. Van Kuren, 1 Barb. Ch., 490.) As a general rule a foreclosure bars the claims of all persons having liens subsequent to the mortgage foreclosed, who were parties to the suit. The complainant was a party, and if he omitted to set up the claim upon the Mills mortgage, the neglect was his own, and cannot be remedied by undertaking to impose a condition on the judgment of foreclosure and sale, for which the judgment itself gives no warrant.

True, a foreclosure and sale upon a prior mortgage does not affect the lien of a subsequent mortgage held by a third party not a party to the suit, and the purchase at such a sale takes title only as against the parties to the suit. This is because the owner of the subsequent incumbrance, not being a party to the suit, has had no opportunity of setting up his claims, nor has he had his day in court. In this case the plaintiff was a party to the suit, and might have set for all his claims.

It is not necessary to consider in this case what effect, if any, the omission of the plaintiff to set out the Mills mortgage, and its claims thereto, may have upon any claim to share in an equitable distribution of the surplus moneys which may be produced by a sale of the premises, nor whether the plaintiff may not, by leave to be obtained from the court, abandon its present judgment and amend its complaint.

We think the order in the particulars complained of was proper.

Order appealed from affirmed, with $10 costs and disbursements.

Smith, J., concurred ; Hardin, J., not sitting.

Ordered accordingly.


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    FORD PILCHER, Respondent, v. EDWARD S. BRAYTON, Appellant.

      Debts due from a company to its labai'ers — what an assignment thereof— right of the assignee to sue a stockholder under section 18 of chapter 40 of 1848.
    A manufacturing corporation, created under the act of 1848, being indebted to one of its laborers for services rendered, the latter drew a bill of exchange for the amount thereof in favor of the plaintiff) which was presented to and accepted by the company.

      Held, that this operated as an assignment to the plaintiff of the debt due to the laborer, and that the plaintiff could maintain an action to recover the amount thereof from a stockholder of the company, under section 18 of chapter 40 of 1848.

      Oneida Bank v. Ontario Bank (21 FT. Y., 490), followed.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.

      J. R. Swan, Jr., for the appellant.

      R. J. Rail, for the respondent.
   Talcott, P. J.:

This is an appeal from a judgment entered at the Oneida Circuit, on a trial by the court without a jury in a common law action.

The action is brought against the defendant as a stockholder of “ The Utica Steam Engine Company,” a manufacturing corporation created under the act of February 17, 1848 (chap. 40), and the several acts amendatory thereof. The action is brought under section 18 of the original act, which provides as follows :

“ § 18. The stockholders of any company organized under the provisions of this act shall be jointly and severally individually liable for all debts that may be due and owing to all their laborers, servants and apprentices for services performed for such corporation.”

It is further provided, in section 24 of said act, that no stockholder shall be personally liable for any debt contracted by such company, unless a suit for the collection of such debt shall be brought against such company within one year from the time such debt is contracted.

One Abram Lafferty was employed as a laborer in the shops of said engine company during the months of January and February, 1876, whereby the said company became indebted to said Lafferty in the sum of fifty dollars, which was due from said company on the 5th day of February, 1876, and on that day Lafferty drew a draft in the form of an ordinary inland bill of exchange on said company, payable to the order of the plaintiff for the said fifty dollars, thereby directing the said company to charge the said sum to the account of him said Lafferty, and indorsed and delivered the same to the plaintiff. The said bill was duly accepted by the said steam engine company. The consideration upon which the said bill was drawn and accepted was the amount due as aforesaid to Lafferty for his said services as a laborer for the said company..

On the 4th day of August, 1876, the plaintiff brought an action against the said company and Lafferty, on the said bill, in the Supreme Court, and recovered judgment thereon against both defendants for the amount of said bill, with interest and costs ; on which judgment, execution was duly issued and was returned unsatisfied before the commencement of this suit. The justice before'whom this action was tried reported, as a conclusion of law, “that the complainant is the assignee of the demand set out in the complaint, and has the rights of the assignor in virtue of such assignment,” and ordered a judgment for the plaintiff for the amount of the bill, with interest. These conclusions of law were excepted to by the defendant, who now appeals from the said judgment to this court.

It is held that the claim of a laborer for such a corporation is assignable, and that when duly assigned, the assignee takes the same with all the rights and remedies secured to the laborer by the statute referred to. (Kincaid v. Dwinelle, 59 N. Y., 548; Bonnell v. Wheeler, 1 Hun, 332.) The precise question as to the assignability of such a demand, carrying with it the rights and remedies given by the statute, has also been decided in this department. (Krauser v. Murdock, General Term, 4th dep., MS.) According to the ruling of the Court- of Appeals in the case of the Oneida Bank v. The Ontario Bank (21 N. Y., 490) it seems to follow, that the payee of a bill of exchange drawn on account of a debt due for such services as are mentioned in section 18 of the act in question takes not only the bill itself, but the original consideration upon which the same was founded, with all the rights and remedies which could have been enforced by the drawer of such bill for the purpose of recovering and collecting the original consideration. The case last cited was twice argued in the Court of Appeals, and the opinion delivered by Comstock, J. was acquiesced in by the whole court except Dbnio, J., who dissented, but without delivering any opinion. In the opinion of Comstock it is said, at page 497 : “ The next question, therefore, is whether the right of action to recover the money still remains in Perry, or whether he transferred it to the plaintiff. In either case the suit, if not maintainable on the drafts, would have to be brought in Perry’s name, according to the principles of the common law, but, under our Code of pleadings and practice, it must be brought in the name of the real party in interest. ■ If, therefore, the dealing between Perry and the plaintiff had the effect to assign his claim, the plaintiff has the same right to maintain an action-which Perry-had before the dealing took place. * * * Upon the most careful consideration I cannot bring my mind to entertain any serious doubt upon the proposition. If the drafts had been valid instruments, most clearly Perry’s transfer of them would have left in him no pretence of any claim against the defendant’s bank for the money loaned, on which they were based. * * * He who sells a security and receives his pay for it necessarily sells whatever claim or right the security is understood by the parties to represent.”

On the authority of this case, therefore, we conclude that Lafferty, by the drawing of the bill of exchange and passing it to the plaintiff for value, thereby transferred, not only the right to the money specified in it; but the original consideration upon which the bill was drawn and accepted, by the drawing and negotiation of the bill, passed to the payee, together with all the rights' and remedies which appertain thereto.

The judgment should be affirmed.

Smith, J., concurred; Haedin, J., not sitting.

Judgment affirmed.


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    DANIEL SOURWINE and JAMES H. SOURWINE, Respondents, v. GEORGE TRUSCOTT, Appellant.

      Verbal agreement to give a lease — not binding unless all the terms of the lease are settled.

    In an action to recover damages for a breach, of a verbal agreement of defendant to lease certain premises to plaintiffs, the defendant claimed that, in the conversation referred to, certain conditions of the lease, and particularly the time of its commencement, had not been definitely settled. His counsel requested the court to charge “ that there was no agreement to give alease if there were any essential matters affecting the rights of the parties left open for further consideration.”

      Held, that the request was a proper one, and that the court erred in refusing so to charge.
    Appeal from an order of the Erie County Court denying defendant’s motion for a new trial, made upon a case and exceptions.

      Thomas Cary, for the appellant.
    The understanding between all the parties to the negotiations was, that the contract should be reduced to writing and signed by all parties, and a guaranty signed by Haberstro. No action would therefore lie until it was so written and signed. (Boyd v. Hind, 36 Eng. Law. & Eq., 566; 25 L. J. Ex., 240; Govenor v. Fetch, 28 Eng. Law & Eq., 479; Townsend v. Hubbard, 4 Hill, 351; 2 Barb., 475; Townsend v. Corning, 23 Wend., 443; Fish v. Levine, 16 La. Ann., 29; Dodge y. Hoplcins, 14 Wis., 630; Crane v. Portland, 9 Mich., 493; Morrill v. Tehama M. and M. Co., 10 Nev., 125.)

      Lyman M. Baker, for the respondents.
   Talcott, P. J.:

This is an appeal from the order of the County Court of Erie county, denying a motion for a new trial, in a case in which a vei’diet was rendered for the plaintiff in that court. The action was to recover damages for the breach of a parol agreement alleged to have been made between the plaintiffs and the defendant, whereby it is alleged that the defendant agreed to lease to the plaintiffs a certain building in Buffalo, known as the “ skating rink,” for a term extending to the 15th of February, 1878, at and for the rent of $150 ; but, if the defendant and his co-owners should not want to resume the possession of the building for the purpose of making alterations and repairs thereon by the said fifteenth of February, that the plaintiffs should be permitted to occupy the same for the balance of the season of 1877 and 1878, so long as the building could be used as a skating rink, at the rent of $200 for the whole time of occupancy.

It appears that the conversation about the renting of the building took place on or about the 13th day of December, 1877.

The plaintiffs, as witnesses, represent this conversation as an absolute agreement on the part of Truseott to give the plaintiffs a lease, and, according to their testimony, Truseott was to have the lease prepared the next day.

Truseott, on the contrary, states that there was nothing in the conversation but a treaty for a lease which, as to its general terms, the parties agreed to, but that there were some of the conditions not fully specified in the conversation, and that the terms were to be stated in the lease which was to be drawn up ; and especially-that the time when the lease was to commence was not stated in the conversation. And this appears to be quite probable from the fact that no precise time for the commencement of the lease is stated in the complaint, but it is assumed that it was to commence from the time of the conversation and to extend till the fifteenth of February thereafter.

From the charge delivered by the court to the jury it is obvious, that the controversy on the trial was whether all the particulars and conditions of the lease had been fully agreed on in the conversation between the parties, or whether they were left to be specified when the lease should be formally drawn up and executed.

The defendant’s counsel requested the court to charge “that there was no agreement to give a lease, if there were any essential matters affecting the rights of the parties left open for further consideration.” The court refused so to charge, and the counsel for the defendant excepted.

We think the defendant’s request involved, as a legal proposition, an undeniable truism. If there had been no absolute agreement made as to all the particulars of the lease which was to be given, if the minds of the parties had not met as to all these particulars, there was no agreement on which an action would lie.

It is of no consequence though the plaintiffs would have been willing to accept such a lease as Truscott might have prepared, or that the parties might have presumed that a lease would be prepared which would be agreed to and executed. Unless the lease in all its terms was agreed upon, then there was no binding contract which could be enforced at law.

If the term when the lease was to commence was left indefinite, to be fixed in the lease when prepared, or if any of the conditions to be contained in the lease were • left indefinite, and to be fixed only when the lease should be prepared, there was no such contract as was binding on the parties at law.

Whatever may have been the probability that the parties would not ultimately disagree upon the form of the lease, or however unimportant to the lessees, the stipulations omitted to be specified might be regarded. (Booth v. Bierce, 38 N. Y., 463; Cutts v. Guild, 57 id., 229, 234; Fullerton v. Dalton, 58 Barb., 236, 239.)

The order of the County Court is reversed and a new trial granted in the County Court, costs to abide the event.

Smith and Hardin, JJ., concurred.

Order of the Erie County Court refusing to grant a new trial reversed, and a new trial granted in the Erie County Court, costs to abide event.


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    GIDEON G. STEPHENS, Respondent, v. SAMUEL H. FOX, Appellant.

      Action by a creditor of a corporation against one of its stockholders, to recover an vmpaid subscription — a judgment against the company is evidence of the debt — effect of § 10, chap. 140 of 1850, as amended by chap. 282 of 1854.
    In an action brought by a creditor of a railroad company, under section 10 of chapter 140 of 1850, as amended by chapter 282 of 1854, ag-ainst a stockholder, to recover the amount unpaid on his subscription to the capital stock thereof, a judgment recovered by the plaintiff against the company is admissible, and establishes pñma facie that, at the time of its recovery, the plaintiff was a creditor of the company, and also in the absence of proof of fraud or collusion, the validity and amount of the debt then .due to him.

      Millei’ v. White (50 N. Y., 137); McMahon v. Macy (51 id., 155), distinguished.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      II. J. GooJdnham, for the appellant.
    The judgment of plaintiff’s assignors against the company was neither conclusive nor prima facie evidence of a debt against said company, as between this plaintiff and a stockholder. {Miller v. White, 50 N. Y., 137; Moss v. McGullough, 5 Hill, 131; Strong v. Wheaton, 38 Barb., 616; McMahon v. Macy, 51 N. Y., 155; Gonant v. Van Bchaick, 24 Barb., 87.)

      W. II Bright, for the respondent.
    The plaintiff’s judgment is sufficient, competent and proper evidence to prove the plaintiff to •be a creditor of the railroad company, and establishes a debt and liability of such company within the meaning of the statute. The amount due upon the defendant’s stock is an asset of the company, and as such would pass to a receiver or assignee, who could sue .for and collect the same. (Rankin v. Blliott, 16 N. Y., 377; 8. G., 14 How., 339; Mills v. Stewart, 41 N. Y., 389; Mann v. R. R. Go., 3 id., 415; Morgan v. R. R. Go., 10 Paige, 290.) As . an asset of the company it could certainly be reached by proceedings under section 294 of the Old Code. {Gibson v. Haggerty, 37 N. Y., 555; Loraher v. Mayor, etc., 7 Abb., 248; Ballston

      Bank v. Marine Bank, 18 Wis., 490; Baker v. Kenworthy, 41 N. Y., 215.) The capital stock of a corporation is a trust fund set apart for the payment of its debts. (Sanger v. Upton, 91 U. S. S. C., 57, 60; Bartlett v. Brew, 57 N. Y., 587.) The amount due and unpaid on the defendant’s stock is a part of the capital stock of the Midland Bailroad Company, as much as the cash ■which has actually been paid in. (Sanger v. Upton, 91 U. S., 56; Webster v. Upton, id., 65; Sanger v. Upton, 13 B. B., 226; Upton v. Tribitcock, 91 U. S., 45; Nathan v. Whitlock, 9 Paige, 152; Ogilvie v. Knox Ins. Co., 22 How. [U. S.J, 384; 13 Wis., 63.) A judgment against a corporation is conclusive, and binds all the stockholders therein, to the extent of' their interest in the capital stock. (Angelí & Ames on Corp., § 615; Slee v. Bloom, 20 Johns., 668, 682, 684; Miller v. White, 50 N. Y., 137, 142; Moss v. Oakley, 2 Hill, 265 ; Moss v. McCullough, 7 Barb., 279; Moss v. Averell, 10 N. Y., 452; Burr v. Wilcox, 22 id., 551, 556.) The rule now established that in actions under the various statutes making stockholders and trustees of certain corporations liable for the corporate debts, because of their own or others fault, fraud or negligence, the judgment against the company is no evidence of the debt, has no application to this caso, (Hastings v. Brew, 5 N. Y. Weekly Dig., 468; Stephens v. Foxj Last Term.) There is a wide distinction between that class of action and the present one. (Nathan v. Whitlock, 9 Paige, 152, 159; Corning v. McCullough, 1 Com., 47; Bird v. Hayden, 1 Bob., 383; Merchants' Bank v. Bliss, id., 391; S. C., 35 N. Y., 412; Stoddard v. Benison, 2 Sweeney, 65; 5 Weekly. Dig., 338; 5 Hun, 210.)
   Talcott, P. J.:

This is an appeal from a judgment entered on the report of a referee.

The action is brought by the plaintiff as the assignee of a judgment for $13,000 and upwards, recovered in 1873, by Willard H. Bennett and others against the New York and Oswego Midland Railroad Company, and is brought against the defendant as a stockholder of the said company to recover the amount unpaid on his stock subscription under section 10 of the general railroad act as amended in 1854 (ch. 282), which provides as follows : “Each stockholder of any company formed under this act shall be individually liable to the creditors of such company to an amount equal to the amount unpaid on the stock held by him, for all the debts and liabilities of such company, until the whole amount of the capital stock so held by him shall have been paid to the company.” The referee reported in favor of the plaintiff for the amount of stock subscribed for and held by the defendant, deducting the amount that the defendant had already paid thereon.

The only question of any importance presented on this appeal is, whether the judgment recovered against the company constituted any evidence as against the defendant, that the plaintiffs in 'that judgment were at the time of the recovery thereof creditors of the railroad company, and comes up upon an offer of the record of the said judgment in evidence, which was objected to by the defendant, “ as insufficient, incompetent and improper,” which objection was overruled and the defendant excepted.

We can have no doubt but that the proof of the judgment against the company was admissible in evidence against the defendant, and that it, prima fa cie, established the fact that the plaintiffs were, at the time of the recovery of the judgment, creditors of the railroad company, and that in the absence of proof of fraud or collusion it established the validity and amount of the debt due from the company to the plaintiffs in the judgment.

The amount due to the' railroad company from the defendant on his stock subscription was an asset of the railroad company and was pursued as such. It would have passed to a receiver or an assignee of the company. The action is in effect an action against the railroad corporation to reach certain of its assets and effects which, under the provisions of the statute referred to, may be recovered against its debtor by an action at law. The plaintiff is seeking to collect a debt against the railroad company, and in so doing pursued, as he has a right to do, one of the company’s debtors, a delinquent stockholder. Whatever establishes that debt against the company establishes that debt against the defendant. The amount due and unpaid on the stock subscribed for and held by' the defendant is a part of the capital stock of the railroad company, and is liable for the debts of the railroad company as much as though it had actually been paid in and was in the possession of the company in cash. (Sanger v. Upton, 91 U. S. [1 Otto], 56; Webster v. Upton, id., 65; Upton v. Tribilcock, id., 45; Nathan v. Whitlock, 9 Paige, 152), and without the aid of the statutory provision, the defendant might have been proceeded against by an ordinary creditor’s bill as the garnishee of the railroad company. (Ogilvie v. Knox Ins. Co. et al., 22 How. [U. S.], 380), and in such case the judgment would, of course, have been conclusive evidence on the plaintiffs behalf of the existence of the debt. (See, also, Sagory v. Dubois, 3 Sandf. Ch., 466.)

The admissibility of the judgment in evidence in such cases was decided in Hastings v. Drew, etc. (4 Weekly Dig., 468), which was affirmed in the Court of Appeals on the 21st of January, • 1879.

The cases of Miller v. White (50 N. Y., 137), and McMahon v. Macy (51 id., 155), relied upon by the defendants are cases in which the action was brought to enforce a liability against the stockholder created by statute, and have no application to a case where it is merely sought to take the effects of a corporation and apply them to the payment of the debts due from the corporation to its creditors. The judgment in such case is conclusive against the party holding any of the assets of the corporation, irrespective of the fact that he is a stockholder. (Bartlett v. Drew, 57 N. Y., 587.)

The judgment should be affirmed.

Smith and'Hardin, JJ., concurred.

Judgment affirmed.


author: Talcott, P. J. :

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    BERNARD BRONNER AND SECKEL BRONNER, Appellants, v. MARTHA A. LOOMIS AND THE ROME SAVINGS BANK, Respondents.

      Order — vacated by a failure to file it in the proper county within ten days — Code, § 282 — who a bona fide mortgagee within.

    October 12, 1874, the plaintiffs recovered a judgment against one loomis in an actidn triable in Onondaga county, from which Loomis took an appeal and gave the requisite security to stay proceedings during the pendency thereof. In January, 1877, Loomis apxffied to the Rome Savings Bank for a loan of $1,000 on premises in Oneida county, on which the bank then held a mortgage for $3,000, and which were also incumbered by a second mortgage for $400, and the plaintiffs’ judgment, a transcript of which had been filed in that county. In pursuance of an agreement between the parties an order was obtained at a Special Term held in Rome, Oneida county, on March 27, 1877, releasing the said premises from the lien of the judgment. Neither this order nor the papers on which it was granted were ever filed in Onondaga county.
    Thereafter and more than ten days from the granting of the order the savings bank, on production of a certified.eopy of it, paid off’ the $400 mortgage, and paid the balance of the $1,000 to Loomis, taking from him a mortgage for $1,000. Upon a motion by plaintiffs to vacate this order, their judgment having been affirmed on appeal.

      Held, that the motion was properly granted; that as the order and papers had not been filed in the office of the clerk of the county of Onondaga within ten days from the time it was granted, it thereby became vacated and that the lien of the judgment was prior to that of the mortgage.

      Semble, that in a proper proceeding the $400 mortgage would be reinstated and its lien revived, to protect the savings bank to the amount thereof.
    The term bona fide mortgagee, in section 282 of the Code, means one who has taken his mortgage without any design to defraud the plaintiffs in the judgment, or anybody else, and upon some bona fide consideration, either present or past.
    Appeal from an order made at the Oswego Special Term vacating as irregular an order heretofore made, except as against a mortgage for $1,000 held by the Rome Savings Bank. The appeal was from that part of the order which allowed the former order to stand as regards the $1,000 mortgage.

      William Q. Huger, for the appellants.

      B. J. Beach, for the Rome Savings Bank.
   Talcott, P. J. :

This is an appeal from an order made by Mr. Justice Mtjllin at the Oswego Special Term, setting aside an order made in this case on the 27th of March, 1877, as irregular, except as against a mortgage of $1,000, dated January 24, 1877, owned by the Rome Savings Bank. The appeal is only from that part of the order which allows the order to stand, so far as the mortgage to the Rome Savings Bank is concerned.

The facts, so far as necessary to be considered, are as follows : The plaintiffs Bronners, on the 12th day of October, 1874, recovered a judgment against Martha A. Loomis in this court on the report of a referee for $466.55. The place of trial of the said action was the county of Onondaga. On or about the 20th of October, 1874, the defendant Loomis appealed from that judgment to the General Term. Upon such appeal the defendant gave security in the usual form to stay the proceedings in the action, signed by herself and two sureties, each of which sureties justified in the sum of $1,000. The Rome Savings Bank already held a mortgage on certain real estate in the county of Oneida, executed to it by the said Martha A. Loomis for $3,000, and in January, 1877, she applied to the trustees of the said savings bank for a further loan of $1,000 to be secured by her bond and a further mortgage of the same premises embraced in the $3,000 mortgage. On examining the certificate of title to the said real estate two other incumbrances subsequent to the $3,000 mortgage were discovered, namely, a mortgage to Edward S. Brayton for $400, covering a portion of said premises, and also the said judgment in favor of the Bronners. And the said Martha A. Loomis was informed by the secretary of the said savings bank, that both of the said incumbrances must be canceled of record before the said further loan of $1,000 could be made on said real estate. And an arrangement was then made between said Martha A. Loomis and the said savings bank, by which the savings bank was authorized to pay out of the said $1,000 the amount necessary to pay the Brayton mortgage. And Mrs. Loomis informing the savings bank that the judgment had been appealed from and duly secured on appeal, she agreed that she would procure the necessary order of the court exempting the lands — 182 acres embraced in the $3,000 mortgage, from the lien and operation of the said judgment, and in April, 1877, the secretary of the savings bank was informed that the necessary order had been obtained for the purpose of exempting such lands, and ivas furnished with a copy of the order of this court, made at a Special Term held at the court house in Nome in and for Oneida county, on the 27th day of March, 1877, whereupon the savings bank advanced the money and paid up the Brayton mortgage, and paid over the balance of the $1,000 to Mrs. Loomis and took to secure the repayment thereof the bond and mortgage in question.

The judgment in favor of the Bronners was affirmed on the appeal. The order of the 27th of March, 1877, which was made by Mr. Justice Hardin, then holding the Oneida Special Term, was made by default, and exempted the property embraced in the mortgage from the lien of the said judgment, and ivas made upon proof of the service of notice of said motion upon the attorneys for the plaintiff, and also upon the sureties in the undertaking on appeal. The order appealed from was made upon a motion in behalf of the plaintiffs, the Bronners to vacate and sot aside the order of the 27th of March, 1877, for irregularity. Most of the various grounds upon which the irregularity of the order of the 27th of March, 1877, are alleged may probably be satisfactorily answered. The fifth ground upon which such irregularity is alleged, however, presents a more difficult question. It is in substance that the order releasing said real estate from the lien of the said judgment has never been entered in the proper clerk’s office, to wit: In the office of the clerk of the county of Onondaga, which was the county specified in the complaint as the place for the trial of the said action.

By the rules of the Supreme Court in force when the order of March 27, 1877, was made, any Special Term order in an action, and the papers upon which it was founded, must be entered and filed in the office of the clerk of the county specified in the complaint as the place of trial of the action, and by rule fourth it was provided, in substance, that it shall be the duty of the party prevailing on a motion, to cause the affidavits, papers and order granted upon a lion-enumerated motion to be filed, and the proper order entered in the proper county within ten days thereafter, or he shall lose the benefit of said order and the. same shall be deemed vacated. It appears by the certificate of the clerk of the county of Onondaga that the papers on which the said order was granted have never been filed, or the order entered in his office.

It does not appear from the papers precisely when the savings bank received the bond and mortgage for $1,000, or when they advanced the consideration therefor, suffice it to say, however, that from other facts which do appear in the affidavit of the secretary that the bond and mortgage could not have taken effect until more than ten days had elapsed after the entry of the order of March 27, 1877, so that according to the practice of the court, the order of the 27th of March, 1877, was in effect vacated by non-compliance with the rule, as to the entry thereof in Onondaga county, at the time when the savings bank took the mortgage and advanced the consideration therefor.

Section 282 of the Code of Procedure under which the order of the 27th of March, 1877, was made, provides that upon the making of such order and a certain entry on the docket of the judgment, the judgment shall during the pendency of such appeal cease to be a lien upon the property so exempted, as against purchasers and mortgagees in good faith. It may be conceded that it is not necessary that a mortgagee, in order to be within the protection of the statute, should show that he had parted with value on the faith of the mortgage. (Union Dime Savings Ins. v. Duryea et al., 67 N. Y., 84.)

What then is the meaning of “good faith” as used in this statute ? It can only mean that the. mortgagee must have taken his mortgage without any design to defraud the plaintiffs in the judgment, or anybody else, and upon some bona fide consideration either present or past. In such a case he can avail himself of the protection of the statute, provided that a court having jurisdiction has made the necessary order under section 282. But in this case the order had become vacated before the savings bank took the mortgage. The order in accordance with the practice of the court was, in effect; conditional upon the entry in the proper county within ten days after it was granted. The counsel for the savings bank claims that it was not his duty to see that the order was duly entered. Perhaps not. But when he assumes to act upon the supposition that it was a valid order he becomes responsible to show, in a case ■where its validity is drawn in question, all the facts which constitute a prerequisite to such validity. It would not be claimed that if the order had been made without jurisdiction, as, for instance, without any notice to the plaintiff in the judgment, that the mortgagee could rely upon it as a valid order, and we think the requisition that the order to be of any effect must be entered within ten days in the proper county, operated per se as a vacatur of the order in case the ten days had expired without such entry. (Sage v. Mosher, 17 How., 371; Scudder v. Snow, 29 How., 95.) At all events the practice was irregular, and it is not shown that the practice was mistaken, or that the non-entry of the order in the proper county was occasioned by any inadvertence or mistake. The secretary and counsel for the savings bank must have known that the place of trial was the county of Onondaga, for that would appear on the transcript of the original docket which was filed in Oneida county.

Whatever may have been the rights of the savings bank if it or its attorney had acted on the order and received the bond and mortgage within the ten days after the order was made, we think that after knowing that the ten days had expired before it had acted on the order it could not set it up as a valid and existing order, without an application to the court, founded on some good reasons, and a notice to the plaintiffs, to allow the order to be entered nunc pro tunc ; and, therefore, we think that the order appealed from, so far as it preserves the priority of the savings bank mortgage for $1,000 over the plaintiffs’ judgment, was erroneous.

The provision of the statute under which the order of March 27, 1877, was made is that the entry shall bo made “ on the docket of such judgment,” without specifying which docket of the judgment is referred to. The judgment roll in this case was filed, and the judgment docketed in Onondaga county, as by law was required, and afterwards by the filing of the transcript of the “ original docket,” in the county of Oneida. It happens in this case that the land ordered to be released from the lien of the judgment is situated in the county of Oneida, but the motion to release the lands from the lien of the judgment might have been made in any one of the several counties in the fifth judicial district. Suppose the motion of the 27th of March, 1877, had been made in the county of Oswego, in which the judgment had also been docketed under a transcript from Onondaga, would the entry on the docket in Oswego county be a sufficient compliance with the statute ? This presents a question which, in the view we take of the case, it is not necessary to decide, but which may arise in any such case unless the entry is required to be made on the “ original docket,” in the office where the order and the papers whereon it is founded are required to be filed and entered. And this circumstance furnishes an additional reason why the order should be entered in the county where the judgment is originally docketed.

The savings bank claims that to the extent of the amount paid to take up the Brayton mortgage, which was a lien prior to the judgment, it is entitled to be protected. This may be so. It may be that in an action commenced for that purpose the court would resuscitate the Brayton mortgage, and hold the savings bank entitled to be subrogated to the rights which Brayton had under that mortgage at the time when the same was paid by the savings bank ; but this relief, if the savings bank would be entitled to it in a proper proceeding commenced to assert its claims in that behalf, cannot be granted in a proceeding under section 282 of the Code of Procedure.

That portion of the order appealed from which excepts the mortgage for $1,000 owned by the Rome Savings Bank from the operation of the order, is reversed with ten dollars, costs and disbursements, without prejudice to an action by the Rome Savings Bank to revive the Brayton mortgage.

Smith, J., concurred ; Hardin, J., not voting.

That part of the order of the Oswego Special Term which is appealed from reversed, with ten dollars costs and disbursements, without prejudice to an action by the Rome Savings Bank to revive the Brayton mortgage.


author: Smith, J.:

text:
    MILES STEBBINS, Respondent, v. ELMER R. HARMON, Appellant.

      Production of partnership hooks and papers — always required if asked for on a partnership accounting.

    In an action between partners for an accounting- either is entitled, at any stage of the action, to an order requiring the production of all partnership books, and the papers and accounts relating thereto, and their deposit with the clerk to be inspected and copied.
    Appeal from an order made at the Niagara Special Term, requiring the defendant to produce certain books and papers to be inspected and copied by the plaintiff.

      A. L. Barton, for the appellant.

      Bouthworth <& Higgins, for the respondent.
   Smith, J.:

This is an appeal from an order, made at the Niagara Special Term, requiring the defendant to deposit books and papers with the clerk of Munroe county for inspection and copy by the plaintiff. The application for the order was made upon the ground, that the inspection sought for is necessary to enable the plaintiff to prepare his reply to the counter-claim set up by the defendant in this action. The action is brought to recover several alleged claims against the defendant arising upon contract. The counterclaim is for a balance alleged to be in the plaintiff’s hands, belonging to the defendant, growing out of the affairs of a co-partnership which existed between the parties for several years, and which has been dissolved, but in respect to which there has not been an accounting and settlement. The application for the order wag made by petition, verified by the plaintiff. It is alleged in the petition that the parties were in partnership from 1869 to 1875 in the flour and grain business at Worcester, Mass., where the plaintiff resided ; that the defendant resided at Rochester, N. Y., and there bought flour and grain and shipped it to the firm at Worcester, and drew on the firm, and that in so conducting the business on his part he kept an account separate from the books of the firm in the plaintiff’s possession at Worcester. That settlements were made annually, the defendant going to "W orcester for the purpose, and producing a statement of his claims against the firm for the preceding year; that the defendant also drew off statements from plaintiff’s books of what purported to be accounts due the firm, and made inventories of the stock on hand, and assets of the firm, and that the yearly settlements were made upon those papers and the accepted drafts in the plaintiff’s hands. It is alleged that the plaintiff did not positively know the contents of the papers so prepared by the defendant, and that he now believes they were incorrect and false in several particulars specified in the petition. It is further alleged that the defendant took away with him a large number of drafts drawn by him on the firm and paid by the plaintiff, and also the balance sheets which wore made at the yearly settlements. The order requires the defendant to deposit the books of original entry of his claims against the firm, the yearly statements of his claims produced by him, all inventories of the stock and assets of the firm which he may have, and the balance sheets and drafts above mentioned now in his possession.

The grounds- upon which the appellant’s counsel asks for a reversal of the order are, that the discovery is not necessary to enable the plaintiff to prepare his reply, and that the only averments in the petition that the books and papers contain any evidence of fraud or mistake in the yearly settlements are stated on belief merely.

The plaintiff’s right to a deposit, inspection and copy of all the papers in the defendant’s possession belonging to the firm is very clear, on • the ground of the joint ownership of each partner. (Kelly v. Eckford, 5 Paige, 548.) Of that nature, are not only the drafts paid by the firm, but also the statement, inventories and balance sheets which were used in and about the yearly settlements, and were prepared for that purpose.

The same principle seems to apply to the entries made by the defendant in his books of his transactions as a member of the firm. True, the books are not partnership property. But the particular entries referred to relate to the partnership matters, and the defendant, by furnishing what he represented to be copies of them for the purpose of effecting annual settlements with his co-partner, treated them as partnership accounts. As he asks for an accounting, their materialty is apparent. On the whole, we think the plaintiff, as one of the partners, has a right to an inspection of the entries in question.

It is argued by the appellant's counsel that as the respondent has set out in his petition the facts upon which he relies as a defence to the counter-claim, it is apparent that he does not need. an inspection of the books and papers to enable him to prepare his reply. The answer to that argument is that the production of partnership books and papers will be compelled, on the application of either party, in any stage of the suit. (Kelly v. Eckford, supra.)

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

Talcott, P. J., and Hardin, J., concurred.

Ordered accordingly.